Miller v. Rosewick Road Development, LLC

KRAUSER, C.J. On December 14, 1998, appellants—Stephen J. Miller, Mary Ebner, and Francis Lee Moreland—were appointed, by the Circuit Court for Charles County, as trustees of the Frank E. Connell Trust, under the terms of a consent order entered by that court. The trust’s principal asset was an undeveloped parcel of real property in Charles County. Among other things, the consent order directed the trustees (appellants) to sell the property and liquidate the trust, by distributing the ²⁷⁸ proceeds from that sale to the trust’s beneficiaries, “as soon as said sale and liquidation may be prudently completed.” Appellants encountered lengthy delays in completing that sale and liquidation, and, in 2010, Rosewick Road Development, LLC, one of the appellees, having acquired the interests of a number of trust beneficiaries, filed a motion in the Charles County circuit court, seeking removal of appellants as trustees and appointment of a successor trustee, who would “fulfill the express purpose” of the consent order by selling the property and liquidating the trust. This motion was supported by a number of beneficiaries, representing, collectively, nearly an eleven percent interest in the trust and who are parties to this appeal as appellees.

Although appellants opposed the motion, the circuit court, after several hearings, granted Rosewick Road’s request and issued an order removing appellants as trustees and thereafter appointed a new trustee. Upon their removal as trustees, appellants noted this appeal, raising four issues, which are reducible to three. They are: 1. Whether Rosewick Road Development had standing to seek removal of the trustees, appointed under terms of a consent order to which its assignors had previously agreed; 2.

Whether the circuit court exceeded its legal authority, either in unilaterally changing the terms of the consent order or in applying an incorrect legal standard, under Estates and Trusts Article § 15-112, in removing the trustees; and 3. Whether the circuit court committed clear error in removing the trustees in the absence of evidence that they had been derelict in the performance of their duties. We hold that, notwithstanding appellants’ claim to the contrary, Rosewick Road had standing to seek the removal of the trustees and that the circuit court had legal authority to remove appellants as trustees. We further hold that, although the court below neither unilaterally changed the terms of the ²⁷⁹ consent order nor applied an incorrect legal standard, as appellants claim, it nonetheless erred in removing appellants as trustees.

Consequently, we shall vacate the order of the circuit court and remand with instructions to reinstate appellants as trustees. Background In 1937, Frank E. Connell purchased, in his sole name, a farm just outside of La Plata, Maryland. According to the deed, it was, at that time, believed to be, “by estimation, four hundred and sixty-five (465) acres more or less.” Thirty years later, he died. At the time of his death, he was married to Rose L. Connell.

She received, under the terms of his handwritten will, the use of all of his property and assets, including the property at issue, for the remainder of her life, and, upon her death, his “remaining property and assets” were to be “divided equally among her relatives and [his].” In May 1977, Rose Connell died. Thereafter, the executors of the estates of Mr. and Mrs. Connell sought to sell the property. They soon learned, however, that there were no buyers, as the property had been “extensively” mined for gravel, and, pursuant to a lease then in effect, mining operations were still ongoing. Those operations eventually ended in 1994, upon the expiration of the gravel mining lease.

But, then, a dispute arose among the beneficiaries of the respective estates of Mr. and Mrs. Connell, because it was unclear which of the two estates owned the tract of land at issue and because the beneficiaries could not agree on an appropriate disposition of that property. Some of the beneficiaries wanted to operate it as a farm; others wanted to lease it for gravel and pulpwood extraction; and still others wished to sell it. Ultimately, the beneficiaries resolved their dispute, and the resultant settlement agreement was memorialized in a consent order, which was issued by the Charles County circuit court on December 14,1998. That order provided that the will of Frank E. Connell be “hereby interpreted as establishing a trust,” containing the ²⁸⁰ property at issue.

The stated purpose of the trust was to “hold the Real Property and assets previously or subsequently derived therefrom as a liquidating trust for sale with assets to be distributed to the beneficiaries in accordance with their interests as soon as said sale and liquidation may be prudently completed.” The consent order vested legal title in that property “solely and absolutely” in the trustees, whose appointment was provided for elsewhere in that document. It further declared that the trust “shall have three trustees ..., who shall act together by consensus” but that, should it become impossible to reach a consensus, any two trustees “together shall have the authority to act” on behalf of the trust. The consent order named, as trustees, appellants: Francis Lee Moreland, Jr.; Stephen Miller; and Mary Ebner. Their appointment reflected, as Miller would later testify, a compromise among the various factions: Moreland was a relative of Rose Connell as well as a licensed real estate agent in Maryland; Miller was a relative of Frank Connell as well as an attorney; and Ebner was purportedly a “neutral party.” Under the terms of the consent order, replacement trustees “may only be appointed by” court order “upon recommendation of the Trustees” themselves, “after notice to the beneficiaries and an opportunity to be heard.” Pending final sale of the real property and distribution of the proceeds, the trustees were granted authority to “create, increase, maintain, invest and reinvest reasonable reserves” from the liquid assets of the trust.

They were further authorized to mortgage or encumber the real property “to facilitate a sale of one or more parcels” but could not, without prior court approval, mortgage or encumber it for development. Once the real property was sold, the trustees were required to distribute the proceeds to the beneficiaries in proportion to their interests and to dissolve the trust. The consent order also authorized the trustees to “do all things necessary or helpful to effect the sale of’ the property “in a single transaction or in a number of transactions.” “For ²⁸¹ purposes of sale,” the trustees could, “in their discretion, among other things, accept such arrangements for purchaser inspection, independent testing, governmental commitments, approvals and consents as may be customary or appropriate in marketing properties of similar size and condition in the greater Washington-Baltimore Metropolitan area.” As for the timing of the sale of the property and its sale price, the consent order provided: The Trustees may enter into a sales contract for the entire parcel of Real Property, subject to court approval, at 85% or more of the appraised value of the entire parcel, at any time within 36 months of the date of this consent decree. Subsequently, the Trustees may enter into a sales contract, for the entire parcel of Real Property, subject to court approval, in any amount.

Sales of less than the entire parcel of Real Property at any time shall also require court approval, but are not subject to the 85% limitation noted above. A total of fifty-five trust beneficiaries were listed in the consent order, with interests ranging from 1.19 percent to, in one instance, 7.14 percent. Their interests were, stated the order, “freely transferable” and, “consistent with Maryland law, each trust beneficiary” could “sell, transfer during life or upon death, donate or take any other lawful action regarding ownership of trust interests.” Upon their appointment as trustees, appellants learned that the property was a “large,” “undeveloped,” and “irregularly shaped parcel” of “undetermined” size. Indeed, though the 1937 deed purported to convey four hundred sixty-five acres, “more or less,” subsequent surveys of the property estimated its size as somewhat less than that. 1 In addition to the ²⁸² potential problems presented by the gravel mining that had been carried on at the property, appellants faced at least two other problems: the property lacked water and sewer access and was landlocked.

In fact, access to it could only be obtained via a poorly maintained, single-lane, gravel path. At about the same time the consent order was entered into by the parties, appellants retained a law firm to advise them as to the appropriate course of action they should take in disposing of the property. They thereafter obtained the services of a local engineering firm to perform the following studies of the property: first, a boundary survey, to obtain a more reliable estimate of the property’s size; second, geotechnical and wetlands studies, to assess the then-unknown impact of the decades-long gravel mining operations that had taken place on the property and to determine the impact “several areas of wetlands on the property” would have on both the property’s use and value; third, a feasibility study, to identify both potential uses of and buyers for the property; and fourth, a marketing analysis, to identity potential problems with the property, so that appellants could either take measures to alleviate them (thereby increasing the value of the property) or, at least, know of them and thus be in a better position to market the property to potential buyers. After the feasibility study was completed, appellants commissioned an appraisal of the property, as the consent order required them to do.

That appraisal, which was the first of several that would ultimately be done, was completed in 2001 by Lipman Frizzell & Mitchell, LLC. That firm estimated that the property was then worth $3,275 million. But, as appellant Miller would later testify, it soon became “obvious,” after consultations with the appraiser, that this appraisal “severely] discount[ed]” the property’s value, because the property then had neither highway access nor water and sewer service. That appraisal prompted appellants to begin discussions with town and county planning officials, to investigate the feasibili ²⁸³ ty of infrastructure improvements, including improved highway access as well as water and sewer hookup.

County officials informed appellants that an extension was planned for a nearby limited-access highway, the St. Charles Parkway, and that, if appellants would agree to a land swap, the county was willing to ensure that the highway would be routed along the southern boundary of the property and that it would include several interchanges, which would provide direct access to this tract. Those negotiations were successfully concluded in December 2005, and construction of the St. Charles Parkway extension commenced in 2006. The county also informed appellants of another nearby road construction project, a planned extension of Radio Station Road across the property. The county suggested that, if appellants would agree to a land grant, to provide the necessary right-of-way, not only would the county build the road at its own expense, thereby further improving highway access to the property, but it might also approve the property for water and sewer hookup, though, as of the time this appeal was heard, water and sewer had not been provided.

Believing, in any event, that they had made significant strides in removing the major obstacles to marketing the property, appellants stepped up their promotion efforts. Appellants had, according to appellant Miller, attempted to sell the property “[rjight from the beginning,” by meeting with several potential buyers, including Facchina Construction Company, an affiliate of appellee Rosewick Road. 2 But, after construction of the St. Charles Parkway extension began in 2006, appellants experienced increased interest in the property- Appellants distributed a “term sheet” to nine potential bidders, setting forth a minimum bid of $9 million, and three companies, including Facchina Construction, accepted the ²⁸⁴ term sheet. Appellants then offered each of the three “an opportunity to raise their bid above the minimum.” Two of them did, but Facchina Construction did not, whereupon appellants selected KLM Real Estate Services, LLC, which had increased its bid to $10.5 million for the property. Appellants’ attorneys then drafted a formal sales contract, and, in November 2006, KLM and the trust executed that document.

Consistent with standard industry practice, the contract included a due diligence period, of 120 days, during which the buyer had the right to withdraw its offer and terminate the contract. Unexpected problems in obtaining investor financing led KLM to do precisely that in March 2007. Appellants then renewed their attempts to sell the property, and, in August 2007, they, on behalf of the trust, entered into a sales contract with TC Fund Property Acquisitions, Inc., a wholly owned subsidiary of a large national developer, Trammell Crow Company. This contract provided, as the previous contract did, for a purchase price of $10.5 million.

It also included a due diligence clause, but reduced the due diligence period from 120 to 95 days. That period was later extended to 155 days in exchange for forfeiture, by TC Fund, of a portion of its deposit. During its due diligence period, TC Fund commissioned a number of environmental, geotechnical, engineering, and marketing reports concerning the property, which, under the terms of the sales contract, were provided to the trust and were usable by it for its own purposes. Satisfied with the results of those reports, TC Fund, in late 2007, indicated to appellants its intention to proceed to closing.

But, before it could do so, a nationwide financial crisis began, which, according to the uncontroverted testimony of appellants’ commercial real estate expert, Harry Shasho, essentially froze commercial real estate activity in southern Maryland, because “[t]here was practically no financing available.” The financial crisis led TC Fund to terminate its contract, telling appellants that they “could not commit their funds until they knew” the extent and depth of the then incipient economic downturn. ²⁸⁵ As the financial crisis unfolded, appellants, in the words of Miller, “tried [their] best to continue to sell” the property without success. During the next two years, they received two offers for the property, but at prices which were far below what they had obtained just a few months earlier. The first of those offers, which was made by an investor named “Berman” in 2008, was at what Berman himself termed “distress pricing,” that is, a purchase price of $5 million. That offer was rejected.

It was, as Miller put it, far below the $10.5 million which had been offered “just months before,” and prudence dictated, appellants believed, that they should reject Berman’s offer. The second offer was made by Facchina Construction, an affiliate of appellee Rosewick Road Development, in late 2009, at an even lower price of $3.01 million. By that time, Rosewick Road had acquired a substantial stake 3 in the Frank E. Connell Trust. Facchina Construction’s offer was based on an appraisal it had commissioned from James B. Hooper, P.A., a local appraiser.

Hooper had concluded that the “as is” value of the property was $3.01 million and no more. Its offer was, however, only open for a period of fourteen days and then it was to expire if no response was received within that time period. Appellants did not believe that the Hooper appraisal accurately reflected the market value of the property. Miller pointed out that, several years earlier, Facchina Construction had purchased property immediately south of the trust’s property, paying eighty-two cents per square foot, whereas the Hooper appraisal estimated the trust property to be worth only sixteen cents per square foot, and that, as noted, was what Facchina Construction, in effect, offered.

Citing the “uproar that [appellants] would have had from all of the ²⁸⁶ beneficiaries” had the trust property been sold at such a low price “to the same person who had paid eighty-two cents a square foot for property immediately south of [it],” appellants flatly rejected Facchina Construction’s offer as, in Miller’s words, “out of the question.” Throughout nearly this entire time period, there had been rumblings of discontent among some of the trust’s beneficiaries, a faction principally composed of Mrs. Connell’s family members, living in Hungary. All of them were, according to a motion they filed below, “elderly” and in “poor health” and, apparently for that reason, were “impatient” and wanted the property sold and the trust liquidated quickly. In March 2003, this group, whom we shall collectively refer to as the “Hungarian beneficiaries,” held a combined interest in the trust exceeding nineteen percent, and they filed both a motion to intervene and, at the same time, a petition to remove appellants as trustees. In both their motion to intervene and their petition to remove appellants as trustees, the Hungarian beneficiaries complained that appellants had failed to inform them of the financial status of the trust or otherwise communicate with them and had failed to file accountings as required by the Maryland Rules.

Although their motion to intervene was granted, this 2003 petition to remove appellants as trustees was not. Beginning sometime in 2008, approximately half of the Hungarian beneficiaries, along with some other beneficiaries, assigned their trust interests to Rosewick Road. By January 2010, Rosewick Road had acquired an undivided 30.7 percent interest in the trust. 4 On January 19, 2010, appellee Rosewick Road filed, in the Charles County circuit court, a motion to remove appellants as ²⁸⁷ trustees and “for other appropriate relief.” The remaining Hungarian beneficiaries, collectively constituting a nearly eleven percent interest in the trust, filed a memorandum in support of Rosewick Road’s motion to remove, and they, too, are appellees in this case. The circuit court held three hearings to consider the matter.

After the first hearing, in April 2010, the circuit court decided to take appellees’ motion under advisement and scheduled a review hearing in November 2010. At the conclusion of the November hearing, the court stated that it was “inclined to grant” appellees’ motion but that it would “give Mr. Miller the opportunity to get it done his way.” It then scheduled the third and final hearing in the matter, which was held in June 2011. At the final hearing in June, appellants called three witnesses: Jane Gatewood, an appraiser; Harry Shasho, a real estate broker with extensive experience in the southern Maryland commercial real estate market; and appellant Miller. Appellees presented no additional testimony or evidence. 5 Mr. Shasho, accepted by the court as an expert in the field of commercial real estate brokerage, testified that appellants first consulted him in early 2007, to “find out what the market was” and to “get some ideas” as to what could be done with the property.

Because, at that time, appellants “still had a contract on the property” with KLM, he and appellants did not enter into a formal listing agreement. During the next three-and-one-half years, Shasho discussed with appellants local market conditions, recent land sale prices, marketing methods, and zoning issues, including the possibility of having the property re-zoned for mixed use development or having the property annexed by the Town of La Plata, as well as related issues of obtaining water and ²⁸⁸ sewer access. He also provided appellants with a written estimate of net proceeds from a proposed sale of the property, based on a purchase price of $10 million. Appellants and Shasho delayed entering into a listing agreement for several years, even after TC Fund’s decision to withdraw from its sales contract, because, in Shasho’s words, that time period was “one of the worst times” in history “to try to sell anything ... large,” since “[t]here was practically no financing available.” In fact, during that recessionary period, several “major” commercial development projects in southern Maryland simply “stopped,” even though construction in those projects was far along.

In Shasho’s opinion, “it would have done [no] good” to heavily market the property during the 2007-2010 time period, because market conditions were so distressed that, if the property had been listed for sale, it likely would have remained unsold for an extended period, leading potential customers to regard such a listing as “a distress property,” a result that would have destroyed the sellers’ bargaining position. In October 2010, appellants and Shasho, believing that the southern Maryland real estate market had bottomed out, entered into a listing agreement, shortly before the second hearing in this matter. The property was listed at an asking price of $10.95 million, a price Shasho recommended based upon his market analysis, which relied upon engineering studies and recent sales data, as well as his belief that the property could be re-zoned for mixed use development. To market the property, Shasho thereafter entered it into innumerable real estate listing databases; marketed it at a trade show in Las Vegas; contacted local real estate brokers and developers; and met with La Plata and Charles County officials to discuss the possibility of annexation, available public water and sewer service, and the possible extension of light rail and highway connections to the property.

Nonetheless, he has been unable to sell the property, despite his view that there is nothing about the property that would prevent it from being sold in the “normal course” of an improving market. ²⁸⁹ As a result of their inability to sell the property, Shasho and appellants sought another appraisal. They turned to Jane Gatewood, who, as noted earlier, also testified at the June 2011 hearing. Ms. Gatewood, an expert in the field of commercial real estate appraisal, said that appellants provided her with engineering and market analysis reports, prepared on behalf of TC Fund, during its due diligence period in 2007. She then described, in some detail, the technical methods she used in preparing her appraisal.

Her appraisal stated that the property was worth $9.25 million, based on fifty cents per square foot. Asked about the methodology used by Mr. Hooper, the appraiser who had prepared the appraisal on behalf of Facchina Construction and had arrived at a much lower figure of $3.01 million, she opined that the Hooper appraisal was not “valid” because it was based upon “significant violations of approved appraisal practices.” The last of the three witnesses to testify on behalf of appellants was appellant Miller. In addition to setting forth, in detail, appellants’ efforts to evaluate and then market the property, he testified that appellants and Mr. Shasho had agreed, based upon the Gatewood appraisal, to reduce the listing price for the property from $10.95 million to $9.5 million, which was still more than three times the Hooper appraised figure of $3.01 million. Ms. Gatewood’s appraisal, according to Miller, was “conservative” and, in his view, “undervalued the property,” but he agreed to nonetheless lower the property’s asking price in accordance with her appraisal to $9.5 million.

The circuit court made two separate rulings at the June 2011 hearing, one prior to hearing testimony and one after doing so. First, it denied what it described as appellants’ “motion to dismiss the motion to remove trustees,” based upon the final sentence of paragraph 4 of the consent order, which, as noted earlier, provides that “[Replacement or successor trustees may only be appointed by” court order “upon recommendation of the Trustees” themselves, “after notice to the ²⁹⁰ beneficiaries and an opportunity to be heard.” After observing that that language in the consent order is “ambiguous,” as it seemed to imply that it overrode the fiduciary removal statute, Estates and Trusts Article, § 15-112, the circuit court stated that it would interpret that provision “in such a way as to be consistent” with the statute and, as a result, found that it had the authority to remove trustees, even without a recommendation of the trustees themselves. Then, at the conclusion of the hearing, the circuit court granted appellees’ motion to remove appellants as trustees. The court agreed with Rosewick Road that paragraph 6 of the consent order, which authorized the trustees to “enter into a sales contract for the entire parcel of Real Property, subject to court approval, at 85% or more of the appraised value of the entire parcel, at any time within 36 months of the date of this consent decree” but that thereafter permitted them to enter into such a contract, “subject to court approval, in any amount,” was “very significant” and that, although not a strict time limitation, it suggested that the purpose of the consent order was, as the court put it, “get a good price, but get it sold.” Then, citing appellant Miller’s testimony that he would not accept a figure below nine million for the property, which it characterized as “basically full price,” it concluded that, because appellants were “fixated” on “getting top price” for the property, they had “lost a sense of ... balance” in performing their duties.

The circuit court therefore held that appellants “failed” to fulfill their fiduciary duty to sell the property “prudently,” and it ordered that they be removed from their positions as trustees. That decision led appellants to note this appeal. 6 Discussion I. Appellants maintain that Rosewick Road lacks standing in this matter for two reasons: First, they claim, the ²⁹¹ beneficiaries, who assigned their trust interests to Rosewick Road, have no basis upon which to claim they are aggrieved by the consent order to which they were parties and, hence, have no right to appeal from it. And, from that conclusion, they reason that, since Rosewick Road, as an assignee, stands in the shoes of its assignors, it too has no right to appeal from the consent order. Second, they surmise that, because Rosewick Road did not begin to acquire its interest in the trust until 2008, it has no right to complain about any purported delay by appellants which took place before then.

Neither of these two grounds provides a basis for us to conclude that Rosewick Road lacks standing in the matter before us. Although “ordinarily, a party may not appeal from a judgment to which he/she consented,” Bryant v. Howard Cnty. Dept. of Soc. Servs, ex rel.

Costley, 387 Md. 30, 42 , 874 A.2d 457 (2005), it may, nonetheless, seek a judicial remedy, by invoking the procedures set forth in Title 2 of the Maryland Rules, if there is a failure by any party to abide by the terms to which he or she had agreed. According to Maryland 2-631, judgments “may be enforced only as authorized by [the Maryland Rules] or by statute.” As the consent order in this case provided for the establishment of a liquidating trust, the statute to which we turn is section 14-101 of the Estates and Trusts Article. That section provides that a “court having equity jurisdiction has general superintending power with respect to trusts.” Md.Code (1974, 2011 Repl.Vol.), § 14-101 of the Estates & Trusts Article (“ET”). As appellees point out, such “superintending power would include the power to remove a fiduciary pursuant to” ET § 15-112.

Rosewick Road’s motion to remove the trustees was an attempt to enforce the consent order in this case, not an appeal from the underlying order itself. Since the beneficiaries who assigned their interests to Rosewick Road had the right to enforce the consent order, so, too, did their assignee, Rosewick Road. Nor is Rosewick Road’s right to enforce the consent order affected by the fact that appellants’ purported failure to perform their duties occurred, in part, during the ²⁹² period of time before the assignments to Rosewick Road were made, because the assignors retained their interests throughout that time period, and, under the express terms of the consent order, they could and did transfer their interests, including their rights of enforcement, to Rosewick Road. We therefore conclude that Rosewick Road has standing to seek removal of appellants as trustees for acts and omissions that predate the assignments and that it was entitled to do so by the means authorized by rule (Md. Rule 2-631) and statute (ET § 15-112).

II

Appellants contend that the circuit court “unilaterally and impermissibly changed the terms of’ the consent order in three ways: First, it effectively imposed a deadline for the sale of the property, although the consent order itself contained no such deadline; second, it removed the trustees named in the consent order; and third, it appointed a new trustee, not named in the consent order, and, in so doing, failed to follow the provisions in the consent order for replacement or substitution of trustees. Finally, appellants claim that the circuit court “erred, as a matter of law,” in applying ET § 15-112 to remove them as trustees. Because the gravamen of all four claims is appellants’ contention that the circuit court lacked the power to act as it did, we shall consider them together. 7 Largely for the same reasons that we conclude that the beneficiaries of the trust, who were parties to the consent order, and their assignees have standing to seek removal of the trustees, we find that the circuit court acted within its authority in considering their request. We reach this conclusion based on the terms of the consent order itself, as well as its status as an enforceable judgment, “subject to the rules generally applicable to other judgments and decrees.” Long ²⁹³ v. State, 371 Md. 72, 82-83 , 807 A.2d 1 (2002) (citation and quotation omitted).

Although it is true that, under some circumstances, a party may contractually forego its right either to bring suit or to be entitled to a remedy, and that, under such circumstances, a court may be powerless to act, see, e.g., First Options of Chicago, Inc. v. Korplan, 514 U.S. 938, 943 , 115 S.Ct. 1920 , 131 L.Ed.2d 985 (1995) (observing that “a court must defer to an arbitrator’s arbitrability decision when the parties submitted that matter to arbitration”), or it may dismiss a complaint, see, e.g., Seigneur v. Nat’l Fitness Inst., Inc., 132 Md.App. 271 , 752 A.2d 631 (2000) (upholding lower court’s dismissal of case, under Rule 2-322(c), where plaintiff had signed exculpatory clause relieving defendant of negligence liability), that is not the situation before us. In the instant case, the consent order contains a provision which, seemingly, leaves the power to appoint successor trustees solely in the hands of the trustees, as it provides that replacement trustees “may only be appointed by” court order “upon recommendation of the Trustees” themselves, “after notice to the beneficiaries and an opportunity to be heard.” But, as the court below observed, the consent order is silent as to the applicability of the Estates and Trusts Article and, specifically, the enforcement rights of the parties, as provided under that article. We agree with the circuit court that, in the absence of express language in the consent order, specifically providing that the Estates and Trusts Article does not apply, the trustee replacement provision should be read so as to render it consistent with the Estates and Trusts Article. See Hastings v. PNC Bank, NA, 429 Md. 5, 24 , 54 A.3d 714 (2012) (“Generally, to determine whether a trustee wields lawful authority to take certain actions in connection with trust matters we look to three different sources: (1) the instrument that creates the trust; (2) applicable statutes; and (3) the common law.”); see also Restatement (Third) of Trusts § 85 (2007) (“[T]he trustee has, except as limited by statute or the terms of the trust, (a) all of the powers over trust property that a legally competent, unmarried individual has with re ²⁹⁴ spect to individually owned property, as well as (b) powers granted by statute or the terms of the trust[.]”).

Under ET § 14-101, the circuit court, as noted earlier, “has general superintending power with respect to trusts.” Within the scope of that general superintending power is the authority to remove a fiduciary, under ET § 15-112, which is one of the principal means of enforcement of the terms of the consent order. As the Supreme Court has observed, the parties to a consent order “desire and expect” that the terms of such an agreement will be enforceable as “a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 , 112 S.Ct. 748 , 116 L.Ed.2d 867 (1992). We therefore conclude that the circuit court acted within its authority in considering appellees’ request to remove appellants as trustees, because the consent order did not expressly bar the court from exercising its general superintending power with respect to the trust, and, furthermore, because the consent order reflected the parties’ “desire and expectation]” that it would be judicially enforceable.

Id. Finally, we note that appellants appear to concede this very issue in their reply brief, where they state that ET § 15-112, “when applied giving due consideration to the purpose and intent” of the consent order, gives the circuit court “the authority to remove” the trustees “for the reasons specified in the statute.” III. Appellants contend that the circuit court