Fenner v. Fenner ( 2023 )


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  • 678                December 20, 2023              No. 669
    This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
    except as provided in ORAP 10.30(1).
    IN THE COURT OF APPEALS OF THE
    STATE OF OREGON
    In the Matter of the
    John B. Fenner Revocable Living Trust,
    dated August 5, 1998, as amended.
    Roberta L. FENNER,
    in her capacity as a beneficiary of the John B. Fenner
    Revocable Living Trust, u/a/d August 5, 1998,
    Objector and Cross Petitioner-Appellant,
    v.
    Hillary H. FENNER,
    in her capacity as a beneficiary of the John B. Fenner
    Revocable Living Trust, u/a/d August 5, 1998,
    Objector and Cross Respondent-Respondent,
    and
    David L. CARLSON,
    in his capacity as Trustee of the John B. Fenner Revocable
    Living Trust, u/a/d August 5, 1998,
    Trustee-Respondent,
    and
    Grace Hartrick FENNER
    and John Buhl Fenner,
    each in his or her capacity as a beneficiary of
    the John B. Fenner Revocable Living Trust,
    u/a/d August 5, 1998,
    Cross-Respondents below.
    Hillary H. FENNER,
    Petitioner-Respondent,
    v.
    Roberta L. FENNER,
    Respondent-Appellant.
    Benton County Circuit Court
    0810354, 1310664; A175326 (Control), A176464
    Nonprecedential Memo Op: 
    329 Or App 678
     (2023)        679
    Joan E. Demarest, Judge.
    Submitted October 6, 2022.
    Roberta Fenner filed the briefs pro se.
    Stanton R. Gallegos, Anit Jindal, and Markowitz Herbold,
    PC, filed the brief for respondent Hillary H. Fenner.
    J. Kevin Shuba filed the brief for respondent David L.
    Carlson.
    Before Ortega, Presiding Judge, and Powers, Judge, and
    Hellman, Judge.
    ORTEGA, P. J.
    Affirmed.
    680                                                     Fenner v. Fenner
    ORTEGA, P. J.
    Roberta Fenner appeals three judgments entered
    in two consolidated cases involving the administration of
    her late father’s trust, the John B. Fenner Revocable Living
    Trust (the trust). She raises five assignments of error chal-
    lenging various aspects of the judgments. We conclude that
    Roberta has not identified any basis for reversing the judg-
    ments and, accordingly, affirm.
    Roberta requests that we review this case de novo.
    ORS 19.415(3)(b). We decline to do so because this is not an
    “exceptional” case, ORAP 5.40(8)(c), and the trial court made
    extensive factual findings, including demeanor-based credi-
    bility findings, ORAP 5.40(8)(d). Accordingly, “we are bound
    by the trial court’s findings of historical fact that are sup-
    ported by any evidence in the record,” and “we review the
    court’s dispositional conclusions for errors of law.” Williamson
    v. Zielinski, 
    326 Or App 648
    , 649, 532 P3d 1257 (2023).
    These cases are before us after a trial on remand
    from Fenner v. Fenner, 
    288 Or App 540
    , 405 P3d 159 (2017),
    rev den, 
    362 Or 665
     (2018) (Fenner I). A full recitation of
    the historical and procedural facts in this dispute would not
    benefit the parties, the bench, or the bar. In brief, Roberta
    served as acting trustee from May 2008 to March 2011.
    Roberta’s sister, Hillary Fenner, and the successor trustee,
    Dorszynski, filed objections to Roberta’s final accounting
    (the accounting case). Hillary also initiated a separate action
    against Roberta alleging breach of trust and other claims
    (the breach of trust case), and the cases were consolidated.
    Roberta filed a petition for declaratory judgment in the
    accounting case seeking to disinherit Hillary for allegedly
    violating the “no-contest” provision of the trust. After a trial
    on both cases, the court entered a limited judgment order-
    ing Roberta to pay $196,467.67 plus interest for expendi-
    tures of trust assets she made in violation of various duties
    as trustee. The court also entered a judgment declaring that
    Hillary did not trigger the no-contest clause of the trust and
    a limited judgment awarding Hillary and Dorszynski attor-
    ney fees. Roberta appeals all three judgments.1
    1
    Roberta’s opening brief fails to comply with ORAP 5.45(3), which requires
    that “[e]ach assignment of error must identify precisely the legal, procedural,
    Nonprecedential Memo Op: 
    329 Or App 678
     (2023)                               681
    First assignment of error. Roberta first argues that
    the trial court erred in declaring that Hillary did not trigger
    the “no-contest clause” of the trust. Article 15, section 3, of
    the trust provides, in part:
    “If anyone, other than me, shall in any manner, directly
    or indirectly, attempt to contest or oppose the validity of
    this agreement, including any amendments thereto, * * *
    then in such event such person shall forfeit his or her share,
    cease to have any right or interest in the trust property,
    and shall be deemed to have predeceased me.”
    Roberta contends that Hillary triggered the no-contest
    clause when, at trial on the accounting case, “Hillary
    repeatedly stated [that] Amendment Number Six [to the
    trust] was not valid and refused to stipulate that the Trust
    including Amendment Number Six was valid.” In Roberta’s
    view, Hillary’s conduct amounted to an “attempt to contest
    or oppose the validity of [the] agreement, including any
    amendments thereto.”
    Roberta’s argument is foreclosed by the trial court’s
    conclusion that Amendment Six is not valid, because the
    trust’s severability provision unambiguously directs that an
    invalid provision be treated as void ab initio. See Fenner I,
    288 Or App at 546 (explaining that, “[i]n construing trusts,
    our goal is to determine and give effect to the intent of the
    trustor, if possible,” and that we “strictly construe” trust
    provisions and “do not extend them beyond their express
    terms” (internal quotation marks and citation omitted)).
    Article 15, section 5, subsection g, of the trust provides that,
    “[i]f any provision of this agreement is declared by a court
    of competent jurisdiction to be invalid for any reason, * * *
    the agreement shall be construed and enforced as if the
    invalid provision had never been included in this agree-
    ment.” After trial, the court concluded that Amendment Six
    was not valid based primarily, although not entirely, on its
    factual, or other ruling that is being challenged,” which generally renders a claim
    of error unreviewable on appeal unless we can discern which rulings the appel-
    lant is challenging. Duckworth v. Duckworth, 
    327 Or App 219
    , 223 n 4, 534 P3d
    1076 (2023). We therefore address only those claims of error that are discernible
    and that Roberta has demonstrated were properly raised and preserved. ORAP
    5.45(4) (“The court may decline to consider any assignment of error that requires
    the court to search the record to find the error or to determine if the error prop-
    erly was raised and preserved.”).
    682                                          Fenner v. Fenner
    finding that John was “disabled and incapacitated” under
    Article 4, section 2, of the trust before he purportedly exe-
    cuted Amendment Six in May 2008. We therefore need not
    decide whether Hillary’s conduct fell within the scope of the
    no-contest clause, because any purported “attempt to con-
    test” Amendment Six was not an “attempt to contest * * * this
    agreement” under the trust’s express terms. Accordingly, we
    reject Roberta’s first assignment of error.
    Second assignment of error. Roberta’s second
    assignment of error challenges “the trial court’s entry of a
    Limited Judgment of Surcharge and Money Award specif-
    ically ‘based upon specific Objection[s] of Hillary Fenner’s
    Objection to [Roberta’s] Final Accounting’ and denying
    Roberta’s motion to dismiss.” The trial court did not err in
    denying Roberta’s motion to dismiss Hillary’s objections
    for lack of standing because Hillary has standing to object
    in the accounting case as a vested beneficiary to the trust.
    ORS 130.010(2) (defining “beneficiary” to include a person
    who has “a present or future beneficial interest in a trust,
    whether vested or contingent”); Tseng v. Tseng, 
    271 Or App 657
    , 673, 352 P3d 74, rev den, 
    358 Or 69
     (2015) (explain-
    ing that, under the Oregon Uniform Trust Code (OUTC),
    “the beneficiaries of a revocable trust have a statutorily rec-
    ognized interest in the trust that exists both during and
    after the settlor’s lifetime” unless the settlor eliminates that
    interest and that “the interest is one that the OUTC autho-
    rizes the beneficiaries to enforce upon the settlor’s death”).
    Further, the surcharges the trial court imposed based on
    Hillary’s objections are supported by the applicable burden
    of proof, Jimenez v. Lee, 
    274 Or 457
    , 466, 
    547 P2d 126
     (1976)
    (a trustee’s duty to account includes “the trustee’s burden to
    prove that the expenditures were made for trust purposes”),
    and by the trial court’s express factual findings, which
    are in turn supported by evidence in the record. We reject
    Roberta’s remaining arguments in support of this assign-
    ment of error as unpreserved or insufficiently developed for
    our review. We therefore reject Roberta’s second assignment
    of error.
    Third assignment of error. Roberta’s third assign-
    ment of error challenges “the surcharge ‘in the amount of
    Nonprecedential Memo Op: 
    329 Or App 678
     (2023)             683
    $3,678.08, plus interest at the rate of 9% per annum from
    May 7, 2008, based upon the objection of [Dorszynski], for
    penalties and interest incurred by the Trust as a result of
    [Roberta’s] failure to file required income tax returns and
    to maintain adequate records.” Contrary to Roberta’s argu-
    ment, Dorszynski had standing to enforce claims of the trust
    as a successor trustee. ORS 130.700 (“A trustee shall take
    reasonable steps to enforce claims of the trust and to defend
    claims against the trust.”); Roberts v. Fearey, 
    162 Or App 546
    , 556, 
    986 P2d 690
     (1999) (“Successor trustees may still
    sue their breaching predecessors.”). And the surcharge the
    trial court imposed based on Dorszynski’s objection is sup-
    ported by the applicable burden of proof and the trial court’s
    express factual findings, which in turn are supported by
    evidence in the record. We reject Roberta’s remaining argu-
    ments in support of this assignment of error as unpreserved
    or insufficiently developed for our review. We therefore reject
    Roberta’s third assignment of error.
    Fourth assignment of error. Roberta’s fourth assign-
    ment of error challenges “the trial court’s findings of fact,
    conclusions of law not supported by the record and judgment
    on grounds not pled, foreclosed by the statute of limitations,
    and not set for trial” with respect to the breach of trust case.
    We note that the accounting case and the breach of trust
    case were consolidated by stipulation in March 2014 and
    that the trial court granted Roberta additional time to pres-
    ent evidence and legal argument after she objected that she
    did not have sufficient notice that the court was proceeding
    to trial on the breach of trust case. However, we need not
    decide whether the trial court erred in proceeding to trial in
    the breach of trust case because we conclude that Roberta
    has not demonstrated that any purported error prejudiced
    her. The trial court awarded the same relief in the account-
    ing and the breach of trust cases, so reversing the judgment
    in the breach of trust case would not “substantially affect[ ]
    the rights of a party.” ORS 19.415(2). We therefore reject
    Roberta’s fourth assignment of error.
    Fifth Assignment of Error. In her fifth and final
    assignment of error, Roberta contends that the trial court
    erred in entering a limited judgment awarding attorney
    684                                        Fenner v. Fenner
    fees. We review a trial court’s legal determinations with
    respect to entitlement to attorney fees for errors of law and
    its exercises of discretion for abuse of discretion. Buchanan
    and Buchanan, 
    328 Or App 6
    , 9, 536 P3d 1064 (2023). Hillary
    and Dorszynski were entitled to attorney fees because the
    consolidated accounting and breach of trust case is a “judi-
    cial proceeding involving the validity or administration
    of a trust.” ORS 130.815. The trial court acted within its
    discretion in considering Hillary’s untimely fee statement
    where Hillary did not receive timely notice of the entry of
    judgment. See ORCP 68 C(4)(d)(ii) (trial court has discretion
    “upon any terms that may be just” to allow a statement to
    be filed and served after the time specified). Roberta has not
    identified any abuse of discretion in the trial court’s thor-
    ough analysis of the ORS 20.075 factors in awarding the
    amount of fees. We reject Roberta’s remaining arguments
    in support of this assignment of error as unpreserved or
    insufficiently developed for our review. We therefore reject
    Roberta’s fifth assignment of error.
    Affirmed.
    

Document Info

Docket Number: A175326

Judges: Ortega

Filed Date: 12/20/2023

Precedential Status: Non-Precedential

Modified Date: 10/16/2024