Fenner v. Fenner , 329 Or. App. 678 ( 2023 )

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This is a nonprecedential memorandum opinion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Nonprecedential Memo Op: 329 Or App 678 (2023) 679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.