In Re: The Broken Arrow Domestic Non Grantor Irrevocable Trust ( 2015 )

 In an August 19, 2013, order, the Wyoming court als.o approved a
settlement agreement resolving several Wyoming actions, but that
settlement agreement expressly excluded Jessie and the Lawrimore trust.
On February 20, 2014, Jessie, as beneficiary of the original
trust, petitioned the Nevada district court for relief against Kubla, as
trustee of the original trust, for alleged breaches of Kubla's fiduciary
duties to Jessie. Kubla later moved for summary judgment on the breach
of fiduciary duty claims. The district court granted Kubla summary
judgment, finding that Kubla had filed accountings with the Nevada court
and that her other actions were compelled or sanctioned by the Wyoming
court. The district court implicitly gave full faith and credit to the
Wyoming orders. The district court then dismissed Kubla from the action,
finding that Kubla could not breach her fiduciary duty to Jessie by obeying
court orders and that Kubla had not otherwise breached her fiduciary
duty. This appeal followed.'
On appeal, Jessie argues that summary judgment was
inappropriate and factual issues remain as to whether Kubla, as trustee of
the original trust, breached her fiduciary duties to Jessie by improperly
valuing certain personal property and surcharging Jessie's account for the
value of that property, improperly settling a trust claim against Candy for
Candy's 1st Bank promissory note, failing to provide sufficient
documentation to Jessie about the trust's finances, failing to provide a
sufficient accounting, improperly advocating against Jessie's attempts to
intervene in the Wyoming litigation, and improperly distributing certain
1 We decline to summarily treat Kubla's failure to file an answering
brief as a confession of error and resolve this matter on its merits. NRAP
31(d).
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funds. We review de novo the district court's summary judgment order.
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
"Summary judgment is appropriate . . . when the pleadings and other
evidence on file demonstrate that no 'genuine issue as to any material fact
[remains] and that the moving party is entitled to a judgment as a matter
of law." Id. (quoting NRCP 56(c)).
To resolve this matter, we must first determine whether the
district court properly gave the Wyoming district court orders full faith
and credit. "The full faith and credit clause of the United States
Constitution requires that a final judgment entered in a sister state must
be respected by the courts of this state absent a showing of fraud, lack of
due process or lack of jurisdiction in the rendering state." Rosenstein v.
Steele, 103 Nev. 571, 573, 747 P.2d 230, 231 (1987). In this appeal, Jessie
presents no arguments regarding why the Wyoming court orders should
not be given full faith and credit, and we can find none in the appendix.
Accordingly, we accord the Wyoming court orders full faith and credit. See
id.
The Wyoming court recognized Kubla as trustee of the original
trust, approved her division of that trust into two successor trusts, and
clarified that the division created two separate successor trusts, not two
sub-accounts of the original trust. The result is that the original trust was
terminated on August 8, 2012. 5 Austin Wakeman Scott, William
Franklin Fratcher, Mark L. Asher, Scott and Asher on Trusts § 36.1, at
2321-26 (5th ed. 2008). Kubla's duties as trustee, however, continue until
a final accounting is rendered and the trust assets are distributed. Id.
Thus, Jessie, as a beneficiary of the original trust, can sue Kubla as
trustee for breach of her fiduciary duties in winding up the original trust.
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While the district court found that all of Jessie's claims for breach of
fiduciary duty were resolved by the Wyoming court settlement, the
settlement agreement expressly excluded Jessie. It is thus not binding
upon him.
Therefore, as to Jessie's claims that Kubla breached her
fiduciary duties to him by improperly valuing certain personal property
and surcharging his account for the value of that property, and by
improperly settling a trust claim against Candy for Candy's 1st Bank
promissory note, while the original trust is bound by the approved
settlement agreement, Jessie is not and may assert these breach of
fiduciary duty claims against Kubla. Further, the parties set forth
differing factual accounts of Kubla's actions. Accordingly, we conclude
that summary judgment is not warranted because genuine issues of fact
remain, and we reverse the district court's order as to these claims.
Next, regarding Jessie's claims that Kubla breached her
fiduciary duties by failing to provide sufficient documentation to Jessie
about the trust's finances and improperly advocating against Jessie's
attempts to intervene in the Wyoming litigation, these claims were not
resolved by the Wyoming settlement agreement and no factual findings in
the Nevada district court's order addressed them. Accordingly, we
conclude that summary judgment is not warranted and we reverse the
district court's order as to these claims.
Jessie's next argument is that Kubla failed to provide a
sufficient accounting. Here, Jessie originally argued in the district court
that Kubla had failed to file an accounting, not that the accounting she
filed was insufficient, and the district court only made findings that Kubla
had provided an accounting, not that the accounting was sufficient.
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Accordingly, we affirm the summary judgment in Kubla's favor on the
issue of whether she had provided an accounting, but we reverse the
summary judgment as to the sufficiency of the accounting because the
district court made no findings of fact on this issue.
Finally, as to Jessie's claims that Kubla breached her
fiduciary duties by improperly distributing certain funds, Kubla's actions
at issue here were sanctioned or compelled by the Wyoming court.
Accordingly, we conclude that they are not a breach of Kubla's fiduciary
duties to Jessie, and we affirm the district court's summary judgment on
these claims. See In re Harrison Living Trust, 121 Nev. 217, 224, 112 P.3d
1058, 1063 (2005) (concluding that a trustee's compliance with a court
order was not a breach of fiduciary duty).
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order. 2
l• ■ •
Parraguirre
4-L.9 C-7r
IA, ,J.
Douglas
2 Thepetition at issue in this matter was asserted by Jessie as
beneficiary of the original trust. Jessie has not filed any petitions in this
matter on behalf of himself as beneficiary of the Lawrimore trust, nor has
the trustee of the Lawrimore trust filed any petitions on that trust's
behalf. Therefore, we decline to consider their rights.
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cc: Hon. Gloria Sturman, District Judge
Ara H. Shirinian, Settlement Judge
Fennemore Craig Jones Vargas/Las Vegas
Fennemore Craig Jones Vargas/Reno
Grant Morris Dodds PLLC
Eighth District Court Clerk
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