ORDER
Before the Court are plaintiff Susan Brown-Thill’s Application to Confirm Arbitration Award (Doc. # 1), plaintiff Susan Brown-Thill’s Motion for Summary Judgment on Her Application for Confirmation of the December 12, 2011 Arbitration Award and Order (Doc. #23), defendant Richard Brown’s Cross-Motion for Summary Judgment Vacating Arbitration Award (Doc. # 38), defendant Brown’s Motion for Leave to File copy of Professor Hanna’s Certification (Doc. # 57), and Brown’s Motion Requesting Court to Consider When Deciding Pending Summary Judgment Motions Related State Court Litigation Order (Doc. # 68).
This case involves an arbitration award in plaintiff Susan Brown-Thill’s (“BrownThill”) favor removing defendant Richard Brown (“Brown”) as co-trustee of their father’s trust, invalidating his appointment of a successor trustee, and extending the term of employment of Melinda Pomeranke (“Pomeranke”), an employee of one of the limited partnerships operated by the family’s trusts. Brown-Thill seeks confirmation of the arbitrator’s award, and attorneys’ fees pursuant to the parties’ arbitration agreement. Brown asks the court to vacate the award of the arbitrator, arguing that the arbitrator exceeded his authority, was biased in favor of BrownThill, and committed misconduct. The parties have filed cross-motions for summary judgment.
I. Background
Brown and Brown-Thill are siblings and beneficiaries of two trusts established by,
In order to manage family property, Eugene and Saurine organized two family limited partnerships and one limited liability company in Kansas. The partnerships are the 7219 Metcalf Partnership L.P. (“FLP I”) and the 7219 Metcalf Partnership L.P. II (“FLP II”). FLP I and FLP II are both controlled by a limited liability company, Brown Bear, L.L.C. (“Brown Bear”), as General Partner. Brown Bear, in turn, is controlled by its members, the EDB and SLB trusts. Each trust owns a 50% membership interest in Brown Bear, and any action taken by Brown Bear requires the approval of both trusts. Therefore, trustees Brown, Brown-Thill, and Cooper must all agree before Brown Bear can take any action.
The EDB revocable trust was established by Eugene in 1989, and was restated twice, most recently in 2007, when Eugene executed the “Second Restatement of Revocable Trust Agreement” (“trust agreement”). Eugene was the sole trustee and beneficiary of the trust until his death in 2008. Upon his death, and as the trust agreement provided, a portion of the principal was placed into a marital trust, established for Saurine’s benefit, while the remainder was placed in a separate residuary trust for the benefit of Saurine and her descendants. After Saurine died in 2009, Brown and Brown-Thill became co-trustees. As co-trustees, Brown and Brown-Thill are charged with distributing Saurine’s trusts into two separate residuary trusts, under which each will become the sole trustee and sole beneficiary. The co-trustees have yet to effectuate their father’s plan, and therefore the estate exists as it did before Saurine’s death. The residuary trust, but not the marital trust, permitted discretionary distributions to Saurine’s descendants only during her lifetime, so the co-trustees cannot currently distribute income or principal to their own descendants. It is unclear if they are income beneficiaries themselves. BrownThill does not claim to have any children, but Brown has two minor children who will be qualified to become discretionary income beneficiaries, and to receive discretionary disbursements of principal, from Brown’s separate trust. After the separate trusts are created, Brown and Brown-Thill each will have a limited power of appointment to distribute the principal of their own trusts to their descendants, in trust or outright, in whatever proportion they designate by will. However, the trust provides that each child under the age of 30 will become the sole beneficiary of a separate contingent trust, the principal of which be fully paid by age 30. Failing
The other provisions of the trust agreement dispositive here include those related to trustee succession and trustee removal contained in Article V. Trustees may be appointed under four circumstances: (1) by a trustee, when there is only one trustee, (2) by co-trustees acting jointly, where two or more co-trustees are then acting, (3) by a majority vote of the beneficiaries, if no trustee is currently acting and no successor has been appointed, (4) by majority vote of the income beneficiaries, after voting to removing a trustee. Since Brown and Brown-Thill are co-trustees, they must both approve the appointment of a trustee. Any trustee may resign by delivering a written notice of intent to resign in 30 days to the income beneficiaries and to any co-trustee then acting, and thereafter settling his or her account. The trust agreement provides the trustees may be removed by a majority vote of the income beneficiaries, but does not explicitly limit or prevent statutory removal of a co-trustee for cause.
As co-trustees, Brown and Brown-Thill have wide authority to administer the trusts. Each has “full power and authority to do all things necessary and proper to manage, control, invest, and reinvest the assets constituting the trust estate ... in the same manner as if the Trustee were the fee simple owner of the trust estate.” The trust agreement also provides that the administration of the trust and the agreement itself will be governed by the law of the trust situs, and that the trust situs shall be in Florida “unless changed by the trustee” pursuant to the trust agreement. The parties agree that the trust situs has not been changed from Florida.
In March 2010, Brown and Brown-Thill entered into an arbitration agreement to resolve their many disputes over family business out of court. It provides, “All existing and future controversies between the parties ... whether in their individual capacities, their capacities as co-beneficiaries and/or co-trustees of the [EDB trust] and the [SLB trust] ... or in their capacities as co-owners, partners, or members of any business entity, including ... [FLP I, FLP II, and Brown Bear] ... which arise out of or relate to the administration and investment of the trusts, partnerships and assets of the [Brown] estates, the payment of estate taxes ... or the division of assets of such estates ... shall be submitted to binding arbitration.” The Agreement also provides that if “either party fails to follow or abide by the arbitrator’s required procedures ... the arbitrator shall be authorized to resolve the issue without the full participation of the non-abiding party and both parties shall be bound by the arbitrator’s decision.” One month later, in April 2010, the parties executed an amendment to the Agreement selecting Rich McLeod (“McLeod”) as the arbitrator, giving him “full and complete binding authority to resolve any and all issues submitted to him for arbitration.”
Unfortunately, the arbitration agreement failed to provide a neat solution to the parties’ difficulties, and the parties arbitrated several disputes before McLeod. The parties’ ongoing disagreements, in and out of arbitration, spurred Brown-Thill to take steps to overcome Brown’s resistance and finally, to submit to arbitration a motion to remove him as co-trustee. Before she could arbitrate the issue, however, Brown surprised everyone by executing a written notice of resignation “effective upon the appointment of John L. Rubinstein” (“Rubenstein”) as successor co-trustee. In connection with his resignation, Brown and Rubenstein executed a separate document whereby Brown unilaterally appointed Rubinstein as his successor co-trustee and Rubinstein accepted Brown’s appointment. Brown testified that on the
In her email response, Brown-Thill, through counsel, contested Brown’s ability to unilaterally appoint a successor co-trustee, but acknowledged her belief that pursuant to the EDB trust agreement Brown’s resignation would be effective upon her acceptance of Rubenstein’s appointment. Her testimony at the December 5, 2011 arbitration shows that she and Cooper thereafter met with Rubenstein on several occasions, and that she intended to condition her acceptance of his appointment upon his agreement to take certain actions as co-trustee, including signing the documents required to effectuate a March 14, 2011 arbitration award, and agreeing to extend Pomeranke’s employment. Apparently she came close, since she signed various documents that appear to show her acceptance. For example, a document, undated, and titled, “Agreement Regarding Trustee Compensation for the EDB Marital Trust,” signed by Brown-Thill and Rubenstein, includes the recital that “John L. Rubenstein is serving as Co-Trustee of the EDB Marital Trust” (but not the residuary trust), and sets Rubenstein’s compensation as $5,000 per month for October through December 2011, and thereafter at $200 per hour, payable monthly. Several other documents signed by Brown-Thill and Ruben-stein related to Brown Bear activities, but Cooper did not sign them. Both Cooper and Brown-Thill testified at the arbitration hearing that at no point had she signed the “Trustee Succession Agreement” that would trigger the effectiveness of the documents she had signed. A copy of this undated agreement was presented to the Court by Brown and shows that Rubenstein was the only party who signed.
For various reasons Brown-Thill and Cooper could not cooperate, and BrownThill eventually informed Rubinstein that she was not willing to approve him as successor co-trustee. On October 21, 2011, believing he had been appointed by Brown and hired by Brown-Thill, Rubenstein informed Brown-Thill’s counsel that he refused to resign.
On October 25, 2011, Brown-Thill sent notice to Brown that three issues would be arbitrated. They were: (1) the extension of Pomeranke’s term of employment, (2) whether Brown’s resignation and unilateral appointment of Rubinstein as his successor co-trustee was effective, and (3) Brown-Thill’s request for Brown’s removal as co-trustee. The parties scheduled arbitration on December 5, 2011.
On October 26, 2011, Brown sought declaratory relief confirming his appointment of Rubenstein in the Circuit Court of Jackson County, Missouri.
On December 5, the parties convened. Brown testified that he met with McLeod ex-parte prior to the meeting, where McLeod allegedly informed him that he had already made up his mind to remove Brown as co-trustee, and therefore his presence at the arbitration was unnecessary. McLeod also allegedly suggested that Brown submit an award proposal removing both co-trustees. At the hearing, which Brown did not attend, Brown-Thill and her counsel presented a case comprised of four live witnesses and 78 exhibits. At the conclusion of the hearing,
1. The motion to continue Melinda Pomeranke’s contract with the EDB Trust is granted, and the EDB Trust is authorized and directed to agree with any other interested entities, including without limitation Brown Bear LLP, FLP I and II, and the SLB Trust, to proffer to Pomeranke a contract extending her employment under the same terms and conditions as her current contract, with such scrivening modifications as are necessary to make it reasonable considering the current time frame, through the closing of the Brown estate and for a reasonable period thereafter to wind up estate matters. If Pomeranke accepts such contract, it shall be binding on the EDB Trust.
2. Because Brown’s conditional resignation as a Co-Trustee on October 10, 2011 was neither effective nor valid, it is Ordered that Brown remains as a Trustee through today’s date, as he has not effectively resigned under any term of the Trust. Likewise, the ineffective conditional appointment of John Rubenstein as successor Co-Trustee is invalid, and Rubenstein has not been and shall not be deemed to have been a Trustee or Co-Trustee of the EDB Trust at any time up to an including the date of this Award and Order.
3. Richard Lotman Brown is removed as Trustee, Co-Trustee, and/or Successor Co-Trustee of the EDB Trust or Trusts, and shall have no power, right or responsibility to act as such after today’s date.
II. Standard
A motion for summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
The Federal Arbitration Act (“FAA”) provides that where “parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration,” a District Court “must confirm” the award “unless the award is vacated, modified, or corrected as prescribed in [9 U.S.C. § 10 and § 11].” 9 U.S.C. § 9; Hall Street Assocs. L.L.C. v. Mattel, Inc.,
Vacating an arbitration award, by contrast, is no simple matter. Courts accord an “extraordinary level of deference” to arbitration awards. Medicine Shoppe Intern. Inc. v. Turner Inves. Inc.,
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a)(2)-(4). It is against this backdrop that the Court considers Brown’s various reasons for vacating McLeod’s award.
IV. Discussion
A. Substantive Arbitrability
As mentioned above, Brown-Thill submitted three issues to McLeod: (1) the extension of Pomeranke’s term of employment; (2) whether Brown’s resignation and unilateral appointment of Rubinstein as his successor co-trustee was effective; and (3) Brown-Thill’s request for Brown’s removal as co-trustee. Brown argues that issues (2) and (3) were not arbitrable for several reasons.
Courts are authorized to decide whether an arbitrator had jurisdiction over a particular dispute unless the parties to an arbitration agreement agreed to submit such questions to the arbitrator. First Options of Chi. Inc. v. Kaplan,
In evaluating such a claim, the Court must heed the liberal federal policy favoring arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
The arbitration agreement’s term describing the universe of disputes that may be arbitrated is broadly inclusive. Brown
1. Brown’s Resignations
Brown argues that McLeod exceeded his authority when he found that his first resignation was invalid because, in Brown’s view, there was no longer any arbitrable dispute. Of course, the existence of a dispute is a prerequisite to arbitration; and while it is true that McLeod would have exceeded his powers if Brown’s resignation was valid, here Brown’s resignation was not valid. The trust agreement states that a trustee may resign only by giving 30 days’ notice to all income beneficiaries and co-trustees, and that a trustee may only be fully discharged after a full settlement of the trustee’s accounts. Brown’s resignation, however, was conditioned “on the appointment of John L. Rubenstein as my Successor Co-Trustee.” Brown urges that co-trustees may appoint trustees jointly and, he alleges, Brown-Thill agreed to Rubinstein’s appointment; but Brown’s first resignation was ineffective in any event because it was conditional on the unilateral appointment of Rubenstein. Brown was also required, under the trust agreement at least, to settle his account before being fully discharged, and he did not claim or present evidence that he did so prior to or after the arbitration.
2. Removal of Brown As Co-Trustee
In spite of his arguments that he had twice resigned prior to the arbitration, Brown urges that McLeod exceeded his powers by removing him as co-trustee. He first argues that the trust agreement forecloses statutory removal. Second, he argues that he did not agree to arbitrate on behalf of his children, who are qualified beneficiaries and thus, he claims, necessary parties to any trustee removal action. Therefore, he reasons, McLeod exceeded his powers by adjudicating a dispute that involved third parties not represented by Brown and Brown-Thill.
a. Statutory Removal
Brown-Thill requested Brown’s removal under similar Florida and Missouri statutes, whereby “[A] cotrustee ... may request the court to remove a trustee” when, as found by McLeod in his award: “(b) The lack of cooperation among eotrustees substantially impairs the administration of the trust”; and “(c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries.” Fla. Stat. § 736.0706(2)(b)-(c); Mo.Rev.Stat. § 456.7-706.2(2)-(3). The Missouri and Florida statutes also allows all beneficiaries acting together to remove a trustee for cause. Fla. Stat. § 736.0706(2)(d); Mo. Rev.Stat. § 456.7-706.2(4). Article V § (C) of the trust agreement, the only term regarding removal, allows a majority of income beneficiaries to remove a co-trustee and select another, and provides
b. Necessary Parties
Brown’s argument that McLeod exceeded his authority because Brown did not agree to arbitrate on behalf of his children assumes the dispute involved Brown’s children, when in fact it did not. The dispute was between Brown and Brown-Thill in their capacities as co-trustees, and at no point did Brown argue that his children properly disputed his removal or were otherwise involved in the arbitration. However, underlying Brown’s argument is the assumption that McLeod’s award affected the rights of his children, and this concern has more weight. While the award does not refer explicitly to the rights of Brown’s children, an arbitration between co-trustees has the potential to affect the rights of beneficiaries who are non-signatories to the arbitration agreement.
The Court finds that Brown’s children are qualified beneficiaries under Florida law and beneficiaries under Missouri law. Brown’s children will receive trust income and principal at Brown’s discretion when the separate residuary trusts are created, and will receive outright or in trust any portion of the principal that Brown appoints by will. Missouri defines a beneficiary as a person who “has a present or future beneficial interest in a trust, vested or contingent.” Mo.Rev.Stat. § 456.1-103(3)(a). Therefore, in Missouri, Brown’s
(a) Is a distributee or permissible distributee of trust income or principal;
(b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (a) terminated on that date without causing the trust to terminate; or
(c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated in accordance with its terms on that date.
Fla. Stat. § 736.0103. None of the beneficiaries are currently entitled to trust income or principal, given that Saurine’s estate has not been terminated and discretionary disbursements could have been made only during her lifetime. Assuming the interests of Saurine, who is the only distributee under subsection (a), terminated, Brown would be a qualified beneficiary under (b), as would Brown’s children under (c). If the separate trusts had already been created, Brown’s children would be permissible distributees under (a), and his children under (b). Under any of the above circumstances, and in either jurisdiction, their interest is in the proper administration of the trust before and after Saurine’s trusts terminate, since the principal of Saurine’s trusts will eventually flow into their father’s trust, and finally to them.
There are no statutes in Missouri or Florida requiring joinder of beneficiaries in a trustee removal action. Brown’s argument that his children are necessary parties to any trustee removal action is based solely on the general statement, often recited by courts, that “in suits respecting trust property, brought either by or against the trustees, the cestuis que trust as well as the trustees are necessary parties.” Carey v. Brown,
Practice commentaries and treatises note that the opposite of the general rule as stated in Carey and Tick is sometimes true. See W.W. Allen, Commentary, Trust beneficiaries as necessary parties to action relating to trust or its property,
In a court proceeding, the parties would probably request, or the court would require, a final accounting and release, thus necessitating the joinder of all the beneficiaries. Such was not the case here, since the only issue presented to the arbitrator was Brown’s removal. The Court therefore finds that in under the facts as presented in this case, Brown’s minor children, though qualified beneficiaries, are not necessary parties required to be joined for just adjudication of the dispute because no accounting is involved, and the award does not affect their beneficial interests. Otherwise, the dispute was arbitrable between the parties, and arose out of the administration of the EDB trust. Therefore, McLeod did not exceed his powers.
3. Rubenstein’s Appointment
Brown argues that the trust agreement authorized him to unilaterally appoint a
Article V § (A)(4): “At any time after qualifying as Trustee, any individual acting as Trustee may appoint a successor Trustee,” but “any such appointment shall be effective only if no other successor Trustee would then be acting under the above provisions.”
Article V § (A)(5): “The Trustee or Trustees acting at any given time (acting jointly if more than one) may appoint one or more Co-Trustees.”
Brown executed two separate documents prior to the arbitration: a resignation, and an appointment of Rubenstein as co-trustee. His resignation, as discussed, was invalid. His appointment of Rubenstein was likewise invalid, because it purported to be a unilateral appointment of a successor co-trustee under § (A)(4).
McLeod reasoned that “Brown did not have the right to unilaterally appoint Rubenstein ... without the consent of Brown-Thill.” McLeod’s interpretation appears correct. The phrase “acting under the above provisions” refers most appropriately to § (A)(2), which names Saurine, Brown, and Brown-Thill “successor Trustees.” The section Brown relied on, § (A)(4), should thus be read to prohibit any trustee from appointing a successor when Brown or Brown-Thill are acting as successor trustees.
The appointment itself being invalid, it would seem that Rubenstein’s signature accepting the appointment was likewise invalid. Brown argues, however, that Brown-Thill could have assented under § (A)(5), which allows co-trustees to appoint trustees jointly. Indeed, BrownThill had entertained appointing Ruben-stein, and the contracts she signed showing an intent to hire him were discussed at the arbitration. The concern here is that McLeod exceeded his authority by considering a dispute between Brown-Thill and Rubenstein, who was not a party to the arbitration, and was not provided with the opportunity to argue that the employment agreement or the other documents were enforceable. McLeod based his award, at least in part, upon such reasoning, and included in his statement of relevant facts a finding that Brown-Thill did not appoint Rubenstein, and the further statement that “Brown’s attempt to appoint Ruben-stein as his successor Co-Trustee is ... null and void, because Brown-Thill did not consent to Brown’s proposed appointment of Rubenstein as successor Co-Trustee.” However, the document executed by Brown, unilaterally appointing Rubenstein, could not be interpreted as a nomination, to which Brown-Thill had only to assent, for the simple reason that it purports to be a unilateral appointment under Article V § (A)(4). Therefore, the documents Brown-Thill signed on her own, evincing an intent to hire Rubenstein, were not a necessary part of the inquiry. BrownThill could only have assented to an appointment made pursuant to Article V § (A)(5), and Brown does not suggest that his reference to § (A)(4) was a clerical error.
McLeod considered whether there was an agreement between Brown-Thill and Rubenstein in spite of Rubenstein’s absence, but no evidence was presented at the arbitration or to the Court showing that there was a valid agreement. None of the documents presented by either party show that Rubenstein was actually hired
The award cannot affect rights that never existed, and it does not affect Ruben-stein’s legitimate legal remedies, if any, for work he performed in reliance on the invalid contracts. Otherwise, the dispute between Brown and Brown-Thill as co-trustees arose out of the administration of the trusts, and was arbitrable under their arbitration agreement. Therefore, McLeod did not exceed his authority in determining that Rubenstein was never appointed by Brown.
B. Misconduct and Bias
Brown argues that McLeod was biased in favor of Brown-Thill on the basis of McLeod’s ex parte conduct in prior arbitrations. No evidence of ex parte conduct in the present matter was offered to the Court. Brown’s evidence is primarily old legal bills from Cooper that describe each day’s legal activities in concise sentences, in which various people and the issues they discussed are listed together with no indication that they occurred simultaneously. As the Court discusses in a separate decision involving a March 14, 2011 arbitration award between the parties, the evidence of ex parte conduct that Brown presented is not sufficient to warrant vacatur under any provision in 9 U.S.C. § 10. As stated by the Eighth Circuit, “[P]arties to an arbitration choose the method of dispute resolution, and can ask no more impartiality than inheres in the method they have chosen.” Winfrey v. Simmons Foods Inc.,
Brown also argues McLeod committed misconduct at the arbitration because of various statements he made, some of which are weakly alleged to have induced Brown not to attend the hearing. The Court cannot find that McLeod’s improper statement that he had already prejudged the outcome showed bias against
C. Costs, Losses, and Attorneys’ Fees
Brown-Thill has requested attorney’s fees pursuant to the arbitration agreement in connection with this matter. The first sentence of § E provides that the arbitration agreement “shall be a complete bar and defense” to any judicial proceeding “arising out of or in connection with this Agreement,” and that the “responding party shall be entitled to ... recovery of all costs, losses, and attorney’s fees” if “either party pursues any claim, dispute, or controversy ... in a proceeding other than the arbitration provided, herein.” (emphasis added). The arbitration agreement also states, in § C, “Judgment may be entered upon any award rendered by the arbitrator in accordance with applicable law in any court of competent jurisdiction.”
Section C specifically allows a party to seek a “Judgment” to be entered upon any award rendered by the arbitrator. This would include motions to confirm or vacate an arbitration award. The prohibition against judicial proceedings “arising out of or in connection with this agreement,” is related to disputes that are not first submitted to “the arbitration provided herein.” The § E provision is clearly meant to compel the parties to arbitrate their disputes, not to prevent them from seeking to vacate or confirm an award in a court. Accordingly, the Court denies Brown-Thill’s request for attorneys’ fees.
V. Conclusion
Accordingly, it is hereby
ORDERED that plaintiff Susan BrownThill’s Application to Confirm Arbitration Award (Doc. # 1) is granted. It is further
ORDERED that defendant Richard Brown’s Cross-Motion for Summary Judgment Vacating Arbitration Award (Doc.
# 38) is denied. It is further
ORDERED that defendant Brown’s Motion for Leave to File Copy of Professor Hanna’s Certification (Doc. # 57) is granted. It is further
ORDERED that Brown’s Motion Requesting Court to Consider When Deciding Pending Summary Judgment Motions Related State Court Litigation Order (Doc. # 68) is granted.
Notes
. For the purposes of this motion, the Court finds the facts to be as follows. Properly controverted facts, facts immaterial to the resolution of the pending motion, and arguments presented under the guise of facts have been omitted. Moreover, Local Rule 56.1(a) states that “the suggestions in opposition to a motion for summary judgment shall begin with a section that contains a concise listing of material facts as to which the party contends a genuine issue' exists. Each fact in dispute shall be set forth in a separate paragraph, shall refer specifically to those portions of the record upon which the opposing party relies, and if applicable, shall state the paragraph number in movant’s listing of facts that is disputed.” (emphasis added).
Regrettably, the briefing by Brown’s counsel was subpar, with disorganized and haphazard arguments. For example, Brown filed
With that said, the Court has not considered many of the purported facts that Brown claims are controverted for numerous reasons. First, Brown has failed to properly cite to parts of the record, including deposition testimony, documents, affidavits, etc. Where Brown provides citations, he fails to adequately identify with any specificity document or exhibit to which he is citing or relying.
. Case No. 1116-CV30521. On October 29, 2012, the Missouri Circuit Court cancelled a scheduled trial and stayed the action pending the outcome in this case.
. Brown does not argue that the portion of the award extending Pomeranke's term of employment should be vacated.
. McLeod reached his decision by applying Florida and Missouri statutes. The Court reviews the matter under the law of both jurisdictions.
. Florida adopted the Uniform Trust Code in June 2006, effective July, 2007. The second restatement of the EDB trust agreement was executed January 3, 2007.
. It is unclear whether the Court could vacate the award if it somehow affected the rights of Brown's children. Some courts have found that when an award explicitly purports to determine the rights and obligations of non-signatory third parties, the award must be vacated. See, e.g., Comedy Club, Inc. v. Improv West Assocs.,
. Missouri Supreme Court Rule 52.04(a): "A person shall be joined in the action if: (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant.”
. Brown’s appointment of Rubenstein states, "This appointment is hereby made pursuant to the rights and powers granted to the undersigned under ARTICLE V, Paragraph A(4) of the Trust Agreement, which applies to each Trust.”
. Even if Brown-Thill had orally agreed to hire Rubenstein, it would arguably be invalid under Missouri’s statute of frauds provision as a contract not to be performed within one year. See Mo.Rev.Stat § 432.010. For the same reason, the employment agreement cannot stand in as proof of intent to hire Ruben-stein.