The Fine Living Trust v. Merrill Lynch CA2/7

INTRODUCTION

Defendant Merrill Lynch, Pierce, Fenner & Smith appeals from an order denying its motion to compel arbitration.1 We affirm.

BACKGROUND2

In 1982, Leslie Fine and Lucy Fine, husband and wife, executed The Fine Living Trust (the Trust). Around 2001, Leslie and Lucy gave their son, Larry Fine, power of attorney to act on behalf of the Trust. After Leslie and Lucy died, Larry took steps to liquidate trust assets, pay remaining debts and divide the cash proceeds amongst himself and his siblings, plaintiff Arthur Fine, Richard Fine and Wendy Fine, the beneficiaries of the Trust. In January 2012, plaintiffs—the Trust, Larry and Arthur—filed a verified complaint for breach of contract, breach of fiduciary duty, conversion, unjust enrichment and intentional infliction of emotion distress against defendant. This action was instituted after defendant froze an investment account the Trust maintained with defendant, thereby precluding the trustee from distributing the funds to the intended beneficiaries following the death of the last trust settlor. Plaintiffs sought compensatory and punitive damages.

Defendant also purports to appeal from the order denying its ex parte…