In The Matter Of The Niki and Darren Irrevocable Trust and the N and D Delaware Irrevocable Trust

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN THE MATTER OF THE )
NIKI AND DARREN )
IRREVOCABLE TRUST ) C.A. No. 2019-0302-BWD
AND THE N AND D DELAWARE )
IRREVOCABLE TRUST )

MEMORANDUM OPINION

Date Submitted: November 10, 2025
Date Decided: November 19, 2025

Jon E. Abramczyk, Todd A. Flubacher, and Matthew R. Clark, MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Attorneys for Petitioner
Comerica Bank & Trust, N.A.

Thomas A. Uebler and Sarah P. Kaboly, MCCOLLOM D’EMILIO SMITH
UEBLER LLC, Wilmington, DE; Attorneys for Respondent Niki Tesak.

W. Donald Sparks, II, Chad M. Shandler, and Christine D. Haynes, RICHARDS,
LAYTON & FINGER, P.A., Wilmington, DE; Attorneys for Respondent Darren
Rushin.

William M. Kelleher, Phillip A. Giordano, and Madeline R. Silverman, GORDON,
FOURNARIS & MAMMARELLA, P.A., Wilmington, DE; Attorneys for
Respondent Ildiko Juhasz de Tesak.

DAVID, V.C.
The parties in this action, Claudia Elena Tesak (“Niki”) and Darren J. Rushin

(“Darren”),1 were married in 1997 and divorced in 2018. During the marriage,

Niki’s mother, Ildiko Juhasz de Tesak (“Ildiko”), settled a substantial irrevocable

trust to provide for herself, Niki, Darren, and their children. Upon Ildiko’s death,

that trust would fund two successor trusts, one for the benefit of Niki, funded with

fifty-five percent of the corpus, and one in favor of Darren, funded with the

remainder.

Darren, dissatisfied that the trust corpus would not fund a successor trust for

him until Ildiko’s death, retained counsel to change the trust to provide that if Niki

and Darren divorced, the trust corpus would immediately be divided into two equal

shares and administered as separate trusts. To accomplish that purpose, Darren’s

counsel proposed decanting the corpus of the initial trust into a new trust under

12 Del. C. § 3528. Darren’s counsel warned him that the initial irrevocable trust

may not permit Ildiko to distribute the trust’s principal, but Darren proceeded with

the decanting anyway, applying pressure to Niki and Ildiko to get it done.

After Niki and Darren initiated divorce proceedings, Ildiko’s counsel

concluded that the decanting was invalid under Delaware law. This lawsuit resulted,

and in July 2024, following a three-day trial, Vice Chancellor Glasscock issued a

1
I follow the practice of counsel and refer to the litigants by first name or preferred name
for the sake of clarity; no disrespect or familiarity is intended.
post-trial memorandum opinion (the “Memorandum Opinion”) concluding that

under the terms of the initial trust, Ildiko did not retain the power to invade the

principal and therefore was not entitled to decant it, such that the decanting was

invalid and a “null act” under Delaware law.

This memorandum opinion addresses two sets of remaining issues. First, at

trial, Darren asserted counterclaims and crossclaims for breach of fiduciary duty

against the trusts’ corporate trustee, Comerica Bank & Trust N.A. (“Comerica”), and

Ildiko; civil conspiracy against Comerica, Ildiko, and Niki; and aiding and abetting

breach of fiduciary duty against Ildiko. After reviewing the trial record in its

entirety, I find that Darren’s conduct in advocating and facilitating the decanting

precludes him from asserting an equitable claim challenging, or seeking equitable

relief in connection with, the decanting. In equity, Darren cannot seek relief from

individuals who carried out his own wishes. Darren’s counterclaims and crossclaims

are therefore dismissed.

Second, the Memorandum Opinion concluded that the assets purportedly

transferred through the invalid decanting should be deemed never to have left the

initial trust, but left open the issue of how, as a practical matter, assets should be

divided between the initial trust and the new trust. For reasons explained below, the

parties will take targeted discovery to trace trust assets consistent with Section 202

of the Restatement (Second) of Trusts.

2
I. BACKGROUND

Unless otherwise noted, the following facts are drawn from Vice Chancellor

Glasscock’s July 24, 2024 post-trial Memorandum Opinion and additional evidence

presented at a three-day trial held on December 4 through December 6, 2023.2

A. The Parties, The 2012 Trust, And The 2014 Trust

As detailed in the Memorandum Opinion, Niki and Darren married in El

Salvador in 1997. In re Niki and Darren Irrevocable Tr. and the N and D Delaware

Irrevocable Tr., 2024 WL 3515556, at *3 (Del. Ch. July 24, 2024) [hereinafter Niki

and Darren II]. In 2012, Niki’s mother, Ildiko Juhasz de Tesak (“Ildiko”), settled

an irrevocable trust under the laws of California to provide for Niki, Darren, Niki

and Darren’s two children, and herself (the “2012 Trust”). Id. The 2012 Trust made

Ildiko the life beneficiary, able to request the income but not to invade the principal.

Id. at *1. It further provided that, upon Ildiko’s death, the trust corpus would fund

two successor trusts, one for the benefit of Niki (funded with fifty-five percent of

the corpus) and one in favor of Darren (funded with the remainder). Id. Upon their

deaths, the 2012 Trust would be distributed in equal shares to Niki and Darren’s

children in successor trusts. Id. The 2012 Trust was funded with Ildiko’s interest in

2
The Stipulation and Pre-Trial Order is cited as “PTO ¶ __”. Dkt 284. Trial testimony is
cited as “Tr. (Witness) at __”. Dkts. 292–94. Joint trial exhibits are cited as “JX __”. Dkt.
275.

3
Global Infinity, Inc. (“Global Infinity”), an investment company that holds various

securities, and Hacienda 2-503 LLC (“Hacienda”), which owns a condominium in

Mexico. Id. at *3.

B. Darren Engages Counsel To Modify The 2012 Trust.
Sometime after the 2012 Trust was executed, Darren became dissatisfied with

its terms. Id. at *4. Specifically, under the 2012 Trust, the trust corpus would not

fund a successor trust for Darren until Ildiko’s death. Id. Darren wanted a provision,

instead, specifying that if Niki and Darren divorced, the trust corpus would be

divided into two equal shares and administered as separate trusts (the “Divorce

Provision”). Id. at *3–4.

In March 2014, Darren retained an attorney, Patrick Martin of the law firm

Procopio, Cory, Hargreaves & Savitch LLP (“Procopio”), to prepare a new trust

organized under the laws of Delaware to include the Divorce Provision and also to

modify the division of assets such that, instead of Niki receiving fifty-five percent

and Darren receiving forty-five percent of the corpus, Niki and Darren would each

receive fifty percent of the corpus in trust (the “2014 Trust”). Id. at *4.

On June 4, Darren met with Martin and other advisors at Procopio’s San Diego

offices, without Ildiko or Niki, and directed Procopio to draft the 2014 Trust. Id.

Procopio did as Darren instructed, preparing documents to (a) transfer the situs of

the 2012 Trust from California to Delaware; (b) appoint Comerica as co-trustee of

4
the 2012 Trust; (c) establish the 2014 Trust with Comerica as sole trustee; and (d)

appoint principal and income of the 2012 Trust to Comerica as trustee of the 2014

Trust under 12 Del. C. § 3528. Id.

C. The Decanting
To transfer assets from the 2012 Trust to the 2014 Trust, “Martin chose to use

the decanting procedure in 12 Del. C. § 3528, which he understood allowed a trustee

to decant trust assets to a new trust ‘when the trustee has the power to distribute

principal.’” Id. (citation omitted). However, Martin realized that the 2012 Trust did

not grant Ildiko, the settlor, the power to distribute principal during her lifetime. Id.

Martin relayed this information to Darren in an email on December 10, 2014. Id.3

But Darren claims that he relied on Martin to ensure that the Decanting was valid

and did not fully understand the provisions of the 2014 Trust. 4 Two days later,

Darren forwarded Martin’s December 10 email to Ildiko’s financial advisor, Robert

Brower, but not to Ildiko or her attorneys.5 Procopio finalized the 2014 Trust and

sent copies for execution to Niki on December 19, so that Niki could bring the

3
JX 26 at 1–2.
4
Tr. (Darren) at 477:16–478:24; id. at 481:2–24 (“I wouldn’t know how to explain it
myself.”).
5
Id. at 479:3–480:24; JX 28 at 1 (“Niki should seek Miguel’s counsel on the documents
prepared for her signature.”).

5
documents to Ildiko in El Salvador over the holidays. Niki and Darren II, 2024 WL

3515556, at *5.

On Christmas Eve of 2014, “Ildiko, in her capacity as trustee, moved the situs

of administration of the 2012 Trust to Delaware, changed the governing law to

Delaware, and appointed Comerica to be the co-trustee of the 2012 Trust.” Id. That

same day, Ildiko settled the 2014 Trust, appointing Comerica as the sole trustee. Id.

Ildiko and Comerica, as trustees of the 2012 Trust, then purported to decant

the 2012 Trust corpus into the 2014 Trust (the “Decanting”). Id. Ildiko and

Comerica executed a trustee resolution, purporting to appoint the 2012 Trust’s

ownership interests in Global Infinity and Hacienda to the 2014 Trust. Id. Ildiko,

Niki, and Darren also signed acknowledgements and “statements of non-objection

or consent” to the Decanting. Id.

On June 14, 2015, Comerica executed the 2014 Trust. Id.

D. Niki And Darren Divorce, And Ildiko Learns That The Decanting
Was Invalid.

Niki and Darren initiated divorce proceedings in 2018. Id. at *6. In 2019,

Ildiko engaged Delaware counsel to review the 2014 Trust. Id. Ildiko’s counsel

concluded that the Decanting was invalid under Delaware law, and so informed

Comerica on February 15, 2019. Id. After consulting with counsel, Comerica also

concluded that “the Decanting was invalid since [under the 2012 Trust] the Trustees

lacked the power to distribute principal during Ildiko’s lifetime, and the interests of

6
the remainder beneficiaries under the 2014 Trust were not substantially identical to

their interests under the 2012 Trust.” Id.

E. Procedural History
On April 22, 2019, Comerica initiated this action through the filing of a

Verified Petition for Instructions (the “Petition”), seeking “instructions from the

Court as to whether the Decanting Transaction was invalid and, therefore, void ab

initio and, if so, whether the income and principal of the [2012] Trust should be

returned to the [2012] Trust nunc pro tunc.”6

On June 2, 2020, Darren filed an answer to the Petition, as well as

counterclaims and crossclaims (the “Counterclaims” and the “Crossclaims”).7 The

Counterclaims and Crossclaims allege that (1) Comerica breached its fiduciary

duties as trustee of the 2012 Trust and the 2014 Trust, (2) Ildiko breached her

fiduciary duties as trustee of the 2012 Trust, (3) Ildiko aided and abetted Comerica’s

breaches of fiduciary duty, and (4) Ildiko and Comerica participated in a civil

conspiracy to “undo” the Decanting and deprive Darren of the benefits of the 2014

Trust.8

6
Verified Pet. for Instrs. ¶ 55, Dkt. 1.
7
Darren J. Rushin’s Am. Answer to the Verified Pet. for Instrs. and Verified Am.
Countercls. and Cross-cls., Dkt. 95.
8
Id. ¶¶ 40–68. In Counts VI and VII, Darren also seeks to remove Comerica as trustee of
both the 2012 Trust and the 2014 Trust. Id. ¶¶ 69–75.

7
The parties cross-moved for judgment on the pleadings.9 On February 4,

2021, Vice Chancellor Glasscock, to whom this action was assigned, issued a

memorandum opinion denying Comerica and Ildiko’s motion for judgment on the

pleadings, concluding that the doctrine of unclean hands prevented Comerica and

Ildiko from seeking to invalidate transactions that they approved:

This case was briefed around one central issue: whether the assets of
the [2012] Trust were validly decanted into the [2014] Trust. Both
trusts were settled by the same person, Ildiko, who is also a beneficiary
of both trusts, and who was the initial sole trustee of the [2012] Trust.
Ildiko—with Petitioner Comerica, who is a trustee of both the [2012]
Trust and the [2014] Trust—now, four years later, seeks to have the
purported decanting declared void as noncompliant with the Decanting
Statute—a decanting that Ildiko and Comerica executed themselves, as
the trustees of the [2012] Trust. . . .

As the trustee of the [2012] Trust, Ildiko decided to place its corpus into
that [2014] Trust. Ildiko then enjoyed the benefits of being a
beneficiary of the [2014] Trust, including, presumably, distributions
from the [2014] Trust, for several years. Only when conditions made
her regret her prior decanting decision did she and Comerica decide to
attack the legitimacy of their own actions in funding the [2014] Trust.
To invoke equity as a remedy for those actions is, I find, itself offensive
to equity. Having previously acted in a fiduciary capacity to settle and
fund a trust through what she now asserts were illegal means, Ildiko
cannot invoke equity for relief from that action, in her own self-interest
....

9
Pet’r’s Mot. for J. on the Pleadings, Dkt. 81; Ildiko Juhasz de Tesak’s Joinder in Pet’r’s
Mot. for J. on the Pleadings, Dkt. 86; Niki’s Joinder to Comerica’s Mot. for J. on the
Pleadings, Dkt. 87; Resp’t Darren James Rushin’s Cross-Mot. for J. on the Pleadings, Dkt.
105.

8
In re Niki and Darren Irrevocable Tr. and the N and D Delaware Irrevocable Tr.,

2020 WL 8421676, at *3 (Del. Ch. Feb. 4, 2021) [hereinafter Niki and Darren I].

After the Court denied Comerica and Ildiko’s motion for judgment on the

pleadings, Niki filed her own counterclaim and crossclaim, seeking a declaration

that the Decanting was invalid and that the decanted assets must be returned to the

2012 Trust.10 Darren then asserted a crossclaim for conspiracy against Niki and

sought a declaration instructing Comerica to distribute any non-decanted assets in

accordance with the terms of the 2014 Trust.11

Niki moved to dismiss the Counterclaims on March 16, 2022.12 After briefing

and argument, Vice Chancellor Glasscock deferred ruling on the motion and ordered

mandatory mediation under Court of Chancery Rule 174(c).13 Mediation was

unsuccessful, however, and on June 26, 2023, Darren moved for partial summary

judgment on certain of the Counterclaims.14 On July 12, the Court deferred decision

on the remaining dispositive motions until after trial.15

10
Niki’s Am. Answer to Verified Pet. for Instrs., Countercl., and Cross-cl., Dkt. 164.
Darren J. Rushin’s Answer to Niki’s Verified Countercl. and Cross-cl. and Verified Am.
11

Countercl. and Cross-cl., Dkt. 184.
12
Niki’s Mot. to Dismiss Darren Rushin’s Am. Countercl., Dkt. 185.
13
Tr. of 7-7-2022 Oral Arg. and Rulings of the Ct. on Defs.’ Mot. to Dismiss at 30:6–
32:12, Dkt. 216; Order, Dkt. 219.
14
Resp’t Darren Rushin’s Mot. for Partial Summ. J., Dkt. 258.
15
Letter to Counsel, Dkt. 266.

9
F. The Post-Trial Memorandum Opinion

The Court held a three-day trial from December 4 through December 6, 202316

and heard post-trial oral argument on March 20, 2024.17 On July 24, Vice Chancellor

Glasscock issued the Memorandum Opinion, finding that “Ildiko did not retain the

power to invade the principal of the 2012 Trust, and thus was not entitled under the

statute to decant that principal,” such that the Decanting was invalid under Delaware

law. Niki and Darren II, 2024 WL 3515556, at *11.

The Memorandum Opinion concluded that “the attempted [D]ecanting of the

assets held by the 2012 Trust into the 2014 Trust was a null act, and that equity does

not preserve the funding of the 2014 Trust with these assets.” Id. at *13. The Court

further explained that, “[b]ecause the purported Decanting is a nullity, the assets that

theoretically flowed thereby from the 2012 Trust to the 2014 Trust should be viewed

as never leaving the 2012 Trust.” Id. at *11.

On December 31, the parties filed a joint letter identifying issues remaining

for resolution following the Memorandum Opinion.18 This action was reassigned to

me on January 8, 2025.19 Thereafter, the parties filed supplemental briefing on the

16
Dkt. 291.
17
Dkt. 316.
18
Letter to the Court, Dkt. 324.
19
Dkt. 325.

10
remaining issues.20 The Court heard oral argument on October 1,21 and the parties

submitted a Joint Schedule of Evidence on November 10.22

II. ANALYSIS
In supplemental briefing, the parties identify two sets of issues that remain for

resolution.23 First, Darren’s Counterclaims and Crossclaims against Comerica,

Ildiko, and Niki remain outstanding. Second, the parties disagree on how to

implement the Court’s post-trial ruling that, given the invalidity of the Decanting,

the assets that flowed from the 2012 Trust to the 2014 Trust should be viewed as

never leaving the 2012 Trust.

A. Darren’s Counterclaims And Crossclaims Are Dismissed.

The Memorandum Opinion did not resolve Darren’s Counterclaims and

Crossclaims for (1) breach of fiduciary duty against Comerica and Ildiko, (2) civil

20
On April 8, Niki and Darren submitted opening post-trial supplemental briefs. Niki
Tesak’s Opening Post-Trial Suppl., Dkt. 336; Darren Rushin’s Opening Suppl. Post-Trial
Br., Dkt. 337. On May 8, Ildiko, Comerica, Niki, and Darren submitted answering post-
trial supplemental briefs. Ildiko Juhasz de Tesak’s Answering Suppl. Post-Trial Br., Dkt.
341; Pet’r/Countercl.-Def. Comerica Bank & Tr., N.A.’s Answering Suppl. Post-Trial Br.,
Dkt. 343; Niki Tesak’s Answering Post-Trial Suppl., Dkt. 344; Darren Rushin’s Answering
Suppl. Post-Trial Br., Dkt. 345. On June 3, Niki and Darren submitted reply post-trial
supplemental briefs. Niki Tesak’s Reply Post-Trial Suppl., Dkt. 353; Darren Rushin’s
Reply Suppl. Post-Trial Br., Dkt. 354.
21
Dkt. 358.
22
Dkt. 360.
23
The parties also seek awards of fees and costs. As the Court previously ruled, those
requests are deferred until the conclusion of this action.

11
conspiracy against Comerica, Ildiko, and Niki, or (3) aiding and abetting breach of

fiduciary duty against Ildiko.24 Darren argues that Comerica and Ildiko breached

their fiduciary duties as co-trustees of the 2012 Trust “by appointing assets from the

2012 Trust to the 2014 Trust without having the requisite authority under the trust

instrument”;25 Comerica, Ildiko, and Niki engaged in a civil conspiracy, predicated

on a breach of Comerica’s fiduciary duty of impartiality,26 “to prevent Darren from

receiving a distribution from the 2014 Trust upon his divorce from Niki”;27 and

Ildiko aided and abetted Comerica’s breach of fiduciary duty in its capacity as trustee

of the 2014 Trust when she “initiated, spearheaded, and funded” Comerica’s efforts

to prevent Darren from receiving a distribution from the 2014 Trust.28

The equitable doctrine of unclean hands precludes Darren from recovering on

these equitable claims, all premised on fiduciary duties purportedly owed to Darren.

As Vice Chancellor Glasscock explained in his February 4, 2021 memorandum

opinion, “[i]t is a maxim of equity . . . that a wrongdoer with respect to the transaction

24
Dkt. 324.
25
Darren Rushin’s Opening Suppl. Post-Trial Br. at 11.
26
Darren argues that Comerica breached its fiduciary duties, including the duty of
impartiality, by filing the Petition for Instructions and advocating for a position adverse to
Darren’s best interests. Darren Rushin’s Reply Suppl. Post-Trial Br. at 10. Further, Darren
argues that “Comerica intentionally kept Darren uninformed about its plans to invalidate
the Decanting as it was plotting its litigation strategy with Ildiko.” Id.
27
Darren Rushin’s Opening Suppl. Post-Trial Br. at 24.
28
Id.

12
at issue may not invoke equitable relief.” Niki and Darren I, 2020 WL 8421676, at

*5. The doctrine of unclean hands “is aimed at providing courts of equity with a

shield from the potentially entangling misdeeds of the litigants in any given case.”

Nakahara v. NS 1991 Am. Tr., 718 A.2d 518, 522 (Del. Ch. 1998). The defense does

not belong to the defendant, but to the Court itself. Niki and Darren I, 2020 WL

8421676, at *5. “[W]here the litigant’s own acts offend the very sense of equity to

which he appeals,” the Court may refuse to consider requests for relief. Nakahara,

718 A.2d at 522. “To do otherwise would involve the court itself in the inequitable

acts that the petitioner seeks to vindicate.” Niki and Darren I, 2020 WL 8421676,

at *5.

For the doctrine to apply, “the inequitable conduct must have an ‘immediate

and necessary’ relation to the claims under which relief is sought.” Nakahara, 718

A.2d at 523 (quoting Kousi v. Sugahara, 1991 WL 248408, at *3 (Del. Ch. Nov. 21,

1991)). While litigants do not “‘have [to] le[a]d blameless lives’ as to other matters,”

they must “have acted fairly and without fraud or deceit as to the controversy in

issue.” New Start Hldgs., LLC v. Zhou, 2024 WL 4039440, at *15 (Del. Ch. Sep. 4,

2024) (quoting Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S.

806, 814–15 (1945)). Inequitable conduct does not need to be “of such a nature as

to be punishable as a crime or as to justify [any] legal proceedings,” and “[a]ny

willful act concerning the cause of action which . . . transgress[es] equitable

13
standards of conduct is sufficient cause for the invocation of the maxim.” Id.

(quoting Precision Instrument Mfg., 324 U.S. at 815).

After reviewing the trial record in its entirety, I find that Darren’s conduct in

advocating and facilitating the Decanting precludes him from asserting an equitable

claim challenging, or seeking equitable relief in connection with, the Decanting.

Darren seeks relief for a scheme that he orchestrated and then sought to

defend. It was Darren who prompted the Decanting because he was dissatisfied that

the 2012 Trust did not contain a Divorce Provision. He therefore retained counsel

at Procopio to prepare the 2014 Trust, directing Procopio to include provisions that

“were largely in favor of Darren, at the expense of Niki and Ildiko,” and then to

decant the 2012 Trust’s assets into the 2014 Trust. Niki and Darren II, 2024 WL

3515556, at *1 (footnote omitted) (“Niki and Darren participated in each discussion

with the attorneys concerning the creation of the trust, with Darren primarily leading

these discussions.”); id. at *12 (“[I]t was counsel acting primarily at the behest of

Darren who proposed the Decanting.”).29 Martin advised Darren that the 2012 Trust

29
See also Tr. (Niki) at 169:20–23 (“Q. Is there any other reason why you went along with
the idea of the new trust in 2014? A. No. I was simply pushed into it again. Badgered into
it. He doesn’t give up. Ever.”); id. at 172:17–24 (“Darren just handled the whole thing. I
wasn’t even in agreement with this trust, so he just was handling it all because it was his
thing. And I did not get involved because I had already thrown in the towel.”); id. at 184:2–
20 (testifying that Niki agreed to sign the 2014 Trust at Darren’s insistence); id. at 254:21–

14
may not permit Ildiko to distribute principal,30 but he proceeded with the Decanting

anyway,31 applying pressure to get it done.32 Ildiko had her own attorneys, but

Darren did not send the documents to them, opting instead to address the 2014 Trust

documents with Ildiko personally over the holidays, despite Darren’s inability to

24 (“Simply put, I signed that document because Darren put it in front of me. That’s all it
is. I should not have signed that document. He put it in front of me, said I had to sign it,
[so I] signed it.”).
30
Because Darren consented to the Decanting, 12 Del. C. § 3588 also bars him from
bringing claims against Comerica and Ildiko. Under Section 3588(a), Darren’s consent
precludes relief unless it “was induced by the improper conduct of the trustee” or “[a]t the
time of the consent . . . [Darren] did not know of . . . [his] rights; or . . . [m]aterial facts the
trustee knew or should have known with the exercise of reasonable inquiry.” 12 Del. C.
§ 3588(a). Darren was not induced by improper conduct to consent to the Decanting, and
at the time he consented, he knew that the 2012 Trust did not specify that Ildiko could
invade the principal. Therefore, Darren knew of the same material facts that Comerica or
Ildiko knew or should have known, and his consent bars him from bringing claims.
31
Darren and Procopio knew that Ildiko was represented by counsel, but instead of sending
execution copies of the 2014 Trust to her lawyer, Miguel Leff, Procopio sent them to Niki
to hand deliver to her mother in El Salvador on Christmas Eve. See JX 191 at 1 (“Please
have your Mom sign it as we [are] hav[ing] closing on the 28th of May for Hacienda.”);
JX 52 at 2 (“We were not given the courtesy to review the Trust prepared by Procopio and
signed by Mrs. Tesak. . . . It has to be clear to all parties that Procopio represents Darren
Rushin and in the course of such representation drafted a Trust signed by Mrs. Tesak
without Mrs. Tesak having the benefit of consulting her counsel.”).
32
See supra note 29; Tr. (Niki) at 157:8–24 (“I felt very coerced. I felt very between a rock
and a hard place. I did not want to do this. I did not.”); id. at 160:2–8 (“Q. How did you
and Darren come to agreement on the 55/45 split? A. I just finally gave in to him.”); id. at
160:9–19 (“Q. Why did you go along with the 55/45? A. Because he’s very, very—doesn’t
let up.”).

15
explain the contents. Ildiko settled the 2014 Trust on Christmas Eve because Darren

asked her to and because she trusted him.33

Moreover, when challenged in litigation, Darren repeatedly argued that the

Decanting was valid—a position inconsistent with the claims he now raises. Darren

cannot now be heard to argue that Ildiko and Comerica breached their fiduciary

duties to him by approving a transaction at his behest.34 Nor can Darren be heard to

argue that Comerica breached its fiduciary duties to him by seeking instructions that

the Decanting for which he advocated was invalid. Darren’s assertion of equitable

claims to recover from purported harms he brought upon himself is itself offensive

to equity.

Darren responds that he was entitled to rely on the advice of counsel that the

Decanting was valid.35 That argument misses the point by largely ignoring that it

33
Tr. (Ildiko) at 18:4–5 (“I trusted him and I trusted the lawyers . . . .”); id. at 18:20–22 (“I
didn’t read it, but because I trusted him . . . that’s really [why] I signed it.”); id. at 43:9–13
(“Q. You signed all of the 2014 trust documents without ever having read any of those
documents; correct? A. Yes. Because I trusted Procopio and I trusted Darren. I did.”); see
also JX 35 at 1 (“Darren . . . is gathering Ildiko’s signatures on [Procopio’s] documents
today in El Salvador.”).
34
Unlike Niki’s consent to the Decanting, which Vice Chancellor Glasscock held was
insufficient to constitute unclean hands, Darren arranged the very plan from which he now
seeks relief.
35
Darren Rushin’s Opening Suppl. Post-Trial Br. at 20.

16
was Darren who devised the plan to create and fund the 2014 Trust for his own

benefit, by including the Divorce Provision.

In equity, Darren cannot seek relief from individuals who merely carried out

his own wishes.36 Darren’s Counterclaims and Crossclaims are therefore

dismissed.37

B. Implementing The Memorandum Opinion’s Ruling That Trust
Assets Should Be Viewed As Never Leaving The 2012 Trust
1. Which Assets Must Be Returned To The 2012 Trust?

The Memorandum Opinion concluded that because the Decanting is invalid,

“the assets purportedly decanted should be deemed never to have left the 2012

Trust”; “the assets reposed in the 2012 Trust at the time of the ineffective decanting

remain in the 2012 Trust”; and “the assets that theoretically flowed thereby from the

2012 Trust to the 2014 Trust should be viewed as never leaving the 2012 Trust.”

Niki and Darren II, 2024 WL 3515556, at *2, *11.

36
The facts present no countervailing reason against applying the doctrine of unclean
hands. The Court previously found that the doctrine prevented Ildiko and Comerica from
seeking to invalidate actions that they approved, but Ildiko’s and Comerica’s unclean hands
do not absolve Darren for his own role in the scheme. Again, “[t]he application of this
defense is to protect the Court, not Defendants.” New Start Hldgs., 2024 WL 4039440,
at *17.
37
As a result, Darren’s request for equitable relief in the form of a resulting trust and
restrictions on Ildiko’s ability to receive distributions from the assets residing in the 2012
Trust is denied. Darren Rushin’s Opening Suppl. Post-Trial Br. at 27–31. For the same
reasons, Darren’s request to remove Comerica as trustee of the 2012 Trust and the 2014
Trust is denied.

17
The parties now dispute how, as a practical matter, assets currently in the 2014

Trust should be divided between the 2012 Trust and the 2014 Trust. When the

Decanting took place in 2015, the 2012 Trust contained two assets: (1) membership

interests in Global Infinity and (2) membership interests in Hacienda. The parties

agree that those assets should be returned to the 2012 Trust.

After the Decanting, the 2014 Trust acquired three new assets: (1) Meow

Holdings Corp. (“Meow”), a Marshall Islands corporation that owns a yacht;

(2) Villa Carisa Corp. (“Carisa”), a Marshall Islands corporation that owns a

property in St. Maarten; and (3) Playacar Ventures LLC (“Playacar”), a limited

liability company that owns a majority interest in Casas Playacar Sol y Alta Vista

SRL de CV, a Mexican corporation that owns two large residential properties in

Playa del Carmen, Mexico.38 Darren argues that Meow, Carisa, and Playacar must

remain in the 2014 Trust because they “were never held in the 2012 Trust.”39 But

Niki contends that Global Infinity assets were used to acquire or maintain Meow,

38
PTO ¶ 35; see Niki Tesak’s Opening Post-Trial Suppl. at 4–5.
39
Darren Rushin’s Answering Suppl. Post-Trial Br. at 2 (emphasis added).

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Carisa, and Playacar.40 Niki argues that the Court should engage in “asset tracing”

to make the 2012 Trust whole.41

At common law, a trustee who breaches her duties by usurping trust assets

may be liable to the trust beneficiaries not only for the return of the trust property

wrongfully taken, but also for any new property acquired with the trust assets:

Where the trustee by the wrongful disposition of trust property acquires
other property, the beneficiary is entitled at his option either to enforce
a constructive trust of the property so acquired or to enforce an
equitable lien upon it to secure his claim against the trustee for damages
for breach of trust, as long as the product of the trust property is held
by the trustee and can be traced.

Restatement (Second) of Trusts § 202(1) (1959). Stated differently, “where the

trustee wrongfully . . . uses trust funds in the purchase of property,” a beneficiary

can reach the new property resulting from the disposition by following trust property

into its product. Id. § 202(1) cmt. a. A trustee also may be liable for successive

transactions “with respect to property subsequently acquired through the disposition

of the property so first acquired,” even where there are many successive transactions,

“so long as it is shown that the property ultimately held by the trustee was acquired

40
For example, Global Infinity expended funds to employ a yacht captain and to pay
maintenance costs of the yacht and real estate. See Niki Tesak’s Opening Post-Trial Suppl.
at 6.
41
Id. at 3–4.

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through the wrongful disposition of the trust property or its product.” Id. § 202(1)

cmt. b.

Asset tracing is also appropriate where a trustee “acquires property from the

wrongful use of trust property.” Id. § 202(1) cmt. e. If the trustee wrongfully uses

trust property to further her own interests, “the beneficiary can impose a constructive

trust or equitable lien upon the proceeds if he can trace them.” Id. Similarly, where

the trustee wrongfully uses trust funds to pay for improvements upon property

owned by the trustee, “the beneficiary is entitled to an equitable lien upon the

property.” Id. § 202(1) cmt. f.

In short, at common law, one tool the Court has at its disposal for making

beneficiaries whole after a trustee has breached its duties is to trace the assets

wrongfully taken or used and to order their return or impose a constructive trust or

equitable lien. That approach, I find, also provides a logical framework to make the

beneficiaries of the 2012 Trust whole since the Decanting was deemed invalid.

Under the facts of this case, no party should be permitted to profit from the invalid

Decanting.

Darren argues that it would be “highly inefficient and burdensome” to reopen

the record to trace trust assets.42 But the procedural history in this case shows that

42
Darren Rushin’s Reply Suppl. Post-Trial Br. at 4.

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the parties, including Darren, anticipated bifurcated proceedings on remedy.43 The

parties will take targeted discovery to trace trust assets consistent with Section 202

of the Restatement and should consider whether to jointly engage an accountant to

assist them in doing so.

2. The No-Contest Provision Does Not Apply.

In supplemental briefing, Darren rehashes an argument, previously raised and

rejected, that this lawsuit triggered a “no-contest” clause (the “No-Contest

Provision”) in the 2014 Trust.

Article 8.31 of the 2014 Trust provides:

In the event any beneficiary under any trust created under this
instrument, shall, singly or in conjunction with, any other person or
persons, contest in any court the validity of this instrument, or seek to
obtain an adjudication in any proceeding in any court that this
instrument is void, or seek otherwise to void, nullify, or set aside this
instrument, then the right of that person by this instrument shall be
determined as if that person predeceased the execution of this
instrument without descendants surviving.44

At a December 19, 2019 hearing, Vice Chancellor Glasscock ruled that the

No-Contest Provision does not apply to the facts of this case:

[The No-Contest provision] provides that an action seeking to void,
nullify, or set aside the trust instrument triggers forfeiture. That, to my
mind, clearly the trust petition does not do. It does not seek to set aside,

43
Indeed, in an October 4, 2023 letter to this Court, Darren “proposed that discovery and
testimony from his [damages] expert be deferred until after the Court’s rulings on liability.”
Letter to the Court, Dkt. 272.
44
JX 95, Art. 8.31.

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void, or nullify the [2014 Trust]. So the fact that, as a practical matter,
it may, if certain factual developments turn out to be the case, and if
certain choices of Delaware law or findings of Delaware law in a case
of first impression come out in a certain way, have the effect of
nullifying the trust instrument, that is insufficient, in my mind, to
trigger forfeiture.45

The law of the case doctrine “is intended to prevent pernicious serial litigation

of issues already decided in the matter at bar” and “applies to decisions rendered by

a court that arise again later in the same court, in the same proceedings.”

Sciabacucchi v. Malone, 2021 WL 3662394, at *1, *4 (Del. Ch. Aug. 18, 2021)

(quoting Frederick-Conaway v. Baird, 159 A.3d 285, 296 (Del. 2017)). Once a

matter is decided, it generally will not be disturbed unless there is “a showing of

clear error, injustice, or a change in circumstances to disregard the law of the case.”

Id. at *4. Darren has made no such showing here, and I therefore do not revisit the

Court’s prior rulings on this issue.46

III. CONCLUSION

For the reasons explained above, Darren’s Counterclaims and Crossclaims are

DISMISSED. The parties are directed to meet and confer on a plan for targeted

discovery in aid of asset tracing, as described above.

45
Tr. of 12-19-2019 Oral Arg. and Rulings of the Ct. on Ildiko Juhasz de Tesak’s Mot. for
Safe Harbor Decl. Regarding Pet. for Instrs. and Claudia Elena Tesak de Rushin’s Mot. for
Declaratory J. at 32:9–21 (emphasis added), Dkt. 57.
46
Even if the law of the case doctrine did not control, I agree with Vice Chancellor
Glasscock that the No-Contest Provision does not apply for the reasons stated in his ruling.

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