Manon v. Orr ( 2014 )

Nebraska Advance Sheets
484 289 NEBRASKA REPORTS
CONCLUSION
We conclude that the evidence was sufficient to sup-
port Hansen’s conviction for aiding the consummation of a
felony. By purchasing household goods for Torres as com-
pensation for the arson, Hansen intentionally aided Torres
in enjoying the returns or proceeds from his commission of
the crime. Therefore, we reverse the judgment of the Court
of Appeals and remand the cause with directions to affirm
the conviction.
R eversed and remanded with directions.
Pamela A. Manon et al., as Successors in
Interest to Judy A. White, deceased, and
William E. Waechter, appellants, v.
P eggy J. Orr et al., appellees.
___ N.W.2d ___
Filed November 14, 2014. No. S-13-1010.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order
dismissing a complaint, the appellate court accepts as true all facts which are
well pled and the proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff’s conclusion.
3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Actions: Parties. Neb. Rev. Stat. § 25-301 (Reissue 2008) provides that every
action shall be prosecuted in the name of the real party in interest.
5. ____: ____. The purpose of Neb. Rev. Stat. § 25-301 (Reissue 2008) is to pre-
vent the prosecution of actions by persons who have no right, title, or interest in
the cause.
6. Actions: Parties: Public Policy. Neb. Rev. Stat. § 25-301 (Reissue 2008) dis-
courages harassing litigation and keeps litigation within certain bounds in the
interest of sound public policy.
7. Actions: Parties: Standing. The focus of the real party in interest inquiry is
whether the party has standing to sue due to some real interest in the cause
of action, or a legal or equitable right, title, or interest in the subject matter of
the controversy.
8. ____: ____: ____. The purpose of the real party in interest inquiry is to determine
whether the party has a legally protectable interest or right in the controversy that
would benefit by the relief to be granted.
Nebraska Advance Sheets
MANON v. ORR 485
Cite as 289 Neb. 484
9. Statutes. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
10. Statutes: Legislature: Public Policy. It is the function of the Legislature,
through the enactment of statutes, to declare what is the law and public policy of
this state.
11. Statutes: Legislature: Appeal and Error. Where the language of a statute is
clear and unambiguous, it is not the province of an appellate court to disturb the
balance framed by the Legislature.
Appeal from the District Court for Lincoln County: Richard
A. Birch, Judge. Affirmed.
William J. Erickson and George E. Clough for appellants.
Timothy P. Brouillette, of Brouillette, Dugan & Troshynski,
P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
The district court for Lincoln County dismissed for lack of
standing the amended complaint of Pamela A. Manon, Amy M.
White, Brian E. Krzykowski, Jill A. Krzykowski, and William
E. Waechter (plaintiffs). Plaintiffs appeal. We affirm.
FACTUAL BACKGROUND
Virginia M. Waechter is the mother of Judy A. White,
William, and Peggy J. Orr. Virginia was the settlor of the
Virginia M. Waechter Revocable Trust. Prior to November 11,
2012, Virginia was the trustee of the trust; since that date, First
National Bank of North Platte has served as trustee.
At issue are certain parcels of land included in the corpus
of the trust. In late 2010, these parcels were sold by Virginia
as trustee of the trust to Peggy and her husband, Jeff C.
Orr. Plaintiffs objected to the sale of this land. They filed a
complaint on April 15, 2013, and an amended complaint on
July 25, asking that a constructive trust be placed on the real
estate, alleging that Virginia was not competent to sell the
land to Peggy and Jeff and that the sale showed indications
of fraud.
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486 289 NEBRASKA REPORTS
On August 1, 2013, Peggy and Jeff filed a motion to dismiss
the amended complaint under Neb. Ct. R. Pldg. § 6-1112(b)(6)
for failure to state a claim upon which relief could be granted.
Following a hearing, that motion was granted. In dismissing,
the court reasoned that under Neb. Rev. Stat. § 30-3855(a)
(Reissue 2008), the duties of the trustee to the trust are owed to
Virginia as the still-living settlor of the trust, and that the rights
of the beneficiaries are subject to Virginia’s control. As such,
those beneficiaries could have no standing. The court also
declined to adopt a cause of action for intentional interference
with an inheritance or gift.
Plaintiffs appeal.
ASSIGNMENTS OF ERROR
On appeal, plaintiffs assign, restated and consolidated, that
the district court erred in (1) finding they lacked standing and
(2) finding that § 30-3855(a) bars a cause of action for inten-
tional interference with an inheritance or gift.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo.1 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.2
[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.3
ANALYSIS
Standing.
In its first assignment of error, plaintiffs assign that the dis-
trict court erred in finding they lacked standing to bring this
1
Bruno v. Metropolitan Utilities Dist., 287 Neb. 551, 844 N.W.2d 50
(2014).
2
Id.
3
Id.
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MANON v. ORR 487
Cite as 289 Neb. 484
action. The district court, relying upon § 30-3855(a), concluded
that plaintiffs had no right as beneficiaries of Virginia’s revo-
cable trust and that Virginia’s alleged incapacity did not change
that result.
On appeal, plaintiffs contend that contrary to the district
court’s finding, Virginia’s incapacity was relevant to their
standing, essentially arguing that Virginia’s incapacity altered
the trust from one that was revocable to one that was irrevo-
cable. Plaintiffs further assert that principles of public policy
suggest they should be found to have standing.
[4-8] Neb. Rev. Stat. § 25-301 (Reissue 2008) provides that
“[e]very action shall be prosecuted in the name of the real party
in interest . . . .” The purpose of § 25-301 is to prevent the
prosecution of actions by persons who have no right, title, or
interest in the cause.4 Section 25-301 also discourages harass-
ing litigation and keeps litigation within certain bounds in the
interest of sound public policy.5 The focus of the real party in
interest inquiry is whether the party has standing to sue due to
some real interest in the cause of action, or a legal or equitable
right, title, or interest in the subject matter of the controversy.6
The purpose of the inquiry is to determine whether the party
has a legally protectable interest or right in the controversy that
would benefit by the relief to be granted.7
This case presents the question of whether plaintiffs can
show they are real parties in interest, given the provisions of
§ 30-3855. Section 30-3855(a) provides that “[w]hile a trust
is revocable, rights of the beneficiaries are subject to the con-
trol of, and the duties of the trustee are owed exclusively to,
the settlor.”
[9] Absent a statutory indication to the contrary, words in a
statute will be given their ordinary meaning.8 And § 30-3855(a)
4
Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010).
5
Id.
6
Id.
7
Id.
8
Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
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488 289 NEBRASKA REPORTS
clearly provides that where the trust is revocable, as is the trust
in this case, the settlor is in control of the trust. The plain lan-
guage of this statute suggests that the only real party in interest
in a case involving a revocable trust would be the settlor of
that trust, or perhaps one that represents the settlor’s interests,
for example, a court,9 a guardian or conservator,10 or a next
friend.11 But plaintiffs here are contingent beneficiaries of the
trust and have no real interest in the cause of action or a legal
or equitable right, title, or interest in the subject matter of the
controversy. This result is supported by our case law, which
provides that a mere expectancy is insufficient to entitle a pro-
spective heir to bring an action to recover property.12
Nor is this result affected by Virginia’s alleged incapacity.
There is nothing in the plain language of § 30-3855(a), nor do
the parties direct us to any other authority, which would sug-
gest that the revocable status of a trust is affected by the set-
tlor’s alleged incapacity.
These results are further supported by an examination of the
legislative history of § 30-3855(a). Prior to 2005, § 30-3855(a)
(Cum. Supp. 2004) provided in part that
[w]hile a trust is revocable and the settlor has capacity
to revoke the trust, rights of the beneficiaries are subject
to the control of, and the duties of the trustee are owed
exclusively to, the settlor. A settlor’s power to revoke the
trust is not terminated by the settlor’s incapacity.
The language of § 30-3855 was part of the Uniform Trust Code
§ 603. But a comment to the 2004 amendment to § 603 was
added by the drafters of the Uniform Trust Code, explaining
that the phrase “and the settlor has capacity to revoke the trust”
was now optional language:
Section 603 generally provides that while a trust is
revocable, all rights that the trust’s beneficiaries would
9
Neb. Rev. Stat. § 30-2637 (Reissue 2008).
10
See Neb. Rev. Stat. §§ 30-2620 (Cum. Supp. 2012), 30-2628 (Supp. 2013),
and 30-2653 (Reissue 2008).
11
See Dafoe v. Dafoe, 160 Neb. 145, 69 N.W.2d 700 (1955).
12
Id.
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MANON v. ORR 489
Cite as 289 Neb. 484
otherwise possess are subject to the control of the settlor.
This section, however, negates the settlor’s control if the
settlor is incapacitated. In such case, the beneficiaries
are entitled to assert all rights provided to them under
the Code, including the right to information concerning
the trust.
Two issues have arisen concerning this incapacity
limitation. First, because determining when a settlor
is incapacitated is not always clear, concern has been
expressed that it will often be difficult in a particular
case to determine whether the settlor has become inca-
pacitated and the settlor’s control of the beneficiary’s
rights have ceased. Second, concern has been expressed
that this section prescribes a different rule for revocable
trusts than for wills and that the rules for both should
instead be the same. In the case of a will, the devisees
have no right to know of the dispositions made in their
favor until the testator’s death, whether or not the testa-
tor is incapacitated. Under Section 603, however, the
remainder beneficiary’s right to know commences on the
settlor’s incapacity.
Concluding that uniformity among the states on this
issue is not essential, the drafting committee has decided
to place the reference to the settlor’s incapacity in Section
603(a) in brackets. Enacting jurisdictions are free to strike
the incapacity limitation or to provide a more precise
definition of when a settlor is incapacitated . . . .13
In 2005, the Nebraska Legislature revised § 30-3855(a) to
the version in effect today. In making such an amendment to
§ 30-3855, it was explained that the change was done to
reaffirm that the duties of a trustee of a revocable trust
are owed exclusively to the settlor. These amendments
would repeal the language now bracketed in the offi-
cial [National Conference of Commissioners on Uniform
State Laws] text. The rights of the beneficiaries of the
revocable trust whose settlor becomes incompetent would
13
Unif. Trust Code § 603, comment, 7C U.L.A. 554 (2006).
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490 289 NEBRASKA REPORTS
be comparable to the rights of devisees under a will of a
testator who becomes incompetent. A settlor’s power to
revoke the trust would not be terminated by the settlor’s
incapacity, although the incapacity may affect the settlor’s
legal ability to exercise the power.14
This history shows that incapacity does not terminate a set-
tlor’s power to revoke a trust, though it might well affect the
ability of the settlor to exercise that power. And because it does
not affect the power to revoke a trust, that trust remains revo-
cable until revoked, either by the settlor, or by another acting
in the settlor’s stead.15
[10,11] Nor are we persuaded that public policy requires
these plaintiffs to have standing. Indeed, it is the “function of
the Legislature, through the enactment of statutes, to declare
what is the law and public policy of this state.”16 The lan-
guage of § 30-3855 (Reissue 2008) is clear and unambiguous,
and it is not our province to disturb the balance framed by
the Legislature.17
Plaintiffs lack standing to impose the constructive trust they
seek, because under case law and § 30-3855(a), they have
only a mere expectancy. Virginia’s alleged incapacity does not
change this result, because any incapacity would not affect the
status of the trust as revocable. Plaintiffs’ first assignment of
error is without merit.
Intentional Interference With
Inheritance or Gift.
In its second assignment of error, plaintiffs assign that the
district court erred in concluding that § 30-3855(a) prevents
the recognition of the cause of action for intentional interfer-
ence with an inheritance or gift. That cause of action, from the
14
Floor Debate, L.B. 533, 99th Leg., 1st Sess. 1006-07 (Feb. 15, 2005).
15
Cf. §§ 30-2628 and 30-2637. See, also, In re Guardianship &
Conservatorship of Garcia, 262 Neb. 205, 631 N.W.2d 464 (2001).
16
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 59, 835 N.W.2d
30, 37-38 (2013).
17
See id.
Nebraska Advance Sheets
GAVER v. SCHNEIDER’S O.K. TIRE CO. 491
Cite as 289 Neb. 491
Restatement (Second) of Torts,18 provides: “One who by fraud,
duress or other tortious means intentionally prevents another
from receiving from a third person an inheritance or gift that
he would otherwise have received is subject to liability to the
other for loss of the inheritance or gift.”
We expressly decline to opine on the interplay between
§ 30-3855(a) and § 774B of the Restatement. Even if we were
to conclude that the statute did not prevent the adoption of
a cause of action for intentional interference with an inherit­
ance or gift, we would nevertheless decline to adopt this tort.
Plaintiffs’ second assignment of error is without merit.
First National Bank as Party.
For the sake of completeness, we note that in the last section
of the brief for the appellees, they suggest that First National
Bank of North Platte should be dismissed as a defendant
because it has no interest in this suit. But because no cross-
appeal was filed on this issue, we do not address the argu-
ment further.19
CONCLUSION
The decision of the district court is affirmed.
Affirmed.
18
Restatement (Second) of Torts § 774B at 58 (1979).
19
Neb. Ct. R. § 2-109(D)(4) (rev. 2014).
Jason Gaver, appellee, v. Schneider’s
O.K. Tire Co., appellant.
___ N.W.2d ___
Filed November 14, 2014. No. S-13-1014.
1. Declaratory Judgments: Appeal and Error. When a declaratory judgment
action presents a question of law, an appellate court decides the question indepen-
dently of the conclusion reached by the trial court.
2. Contracts: Appeal and Error. The interpretation of a contract is a question of
law, in connection with which an appellate court has an obligation to reach its
conclusions independently of the determinations made by the court below.