In the Matter of the Phyllis V. Mcdill Revocable Trust: Thomas P. Mcdill, Jr., In His Individual Capacity as Beneficiary and Successor Trustee of the Phyliss Mcdill Revocable Trust. v. Michael G. Mcdill, In His Individual Capacity as Beneficiary of the Phyliss Mcdill Revocable Trust ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 40OCTOBER TERM, A.D. 2021
March 22, 2022
IN THE MATTER OF THE PHYLLIS
V. McDILL REVOCABLE TRUST:
THOMAS P. McDILL, JR.,
Appellant
(Respondent),
S-21-0113
v.
MICHAEL G. McDILL, in his capacity
as trustee of the Phyllis McDill
Revocable Trust,
Appellee
(Petitioner).
Appeal from the District Court of Laramie County
The Honorable Peter H. Froelicher, Judge
Representing Appellant:
Bernard Q. Phelan, Cheyenne, Wyoming.
Representing Appellee:
Brianne K. Sherman and Kaylee A. Harmon of Long Reimer Winegar LLP,
Cheyenne, Wyoming. Argument by Ms. Harmon.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
*Justice Davis retired from judicial office effective January 16, 2022, and, pursuant to Article 5, § 5 of
the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2021), he was reassigned to act
on this matter on January 18, 2022.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] Michael G. McDill, as trustee of his deceased mother’s trust, filed a Petition for
Instructions asking the district court to confirm, inter alia, that his brother, Thomas P.
McDill, Jr., was excluded as a beneficiary under the trust because he violated its no-contest
provision. In response, Thomas asserted various counterclaims and requested Michael be
removed as trustee.1 Michael eventually filed a motion for summary judgment on the
Petition for Instructions and a motion to dismiss Thomas’s counterclaims. Thomas, in turn,
sought to amend his response to the Petition to clarify his counterclaims and to add
affirmative defenses. The district court granted summary judgment to Michael, dismissed
Thomas’s counterclaims, and denied Thomas’s motion to amend. We affirm.
ISSUES
[¶2] Thomas raises five issues which we re-state as three:
1. Did the district court err by granting summary judgment to Michael on his
claim that Thomas was disinherited from taking under the trust because he violated its no-
contest provision?
2. Did the district court err by dismissing Thomas’s counterclaims for lack of
standing and as barred by the applicable statute of limitations?
3. Did the district court abuse its discretion by denying Thomas’s motion for
leave to amend his response to the Petition for Instructions?
FACTS
[¶3] On April 22, 2009, Phyllis V. McDill created the “Phyllis V. McDill Revocable
Trust.” At that time, she had three adult children—Thomas, Michael, and Teresa L.
McDill—and six grandchildren. She named herself as trustee and Michael and Teresa as
successor co-trustees. The trust directed that, upon Phyllis’s death, her real property “be
sold at the best available price . . . and the proceeds from such sale or sales be made part
of the Trust Fund.” It gave the trustee the authority to “sell any of [Phyllis]’s tangible
personal property that the [t]rustee . . . determine[s] [she] would not wish to have preserved
for [her] descendants and . . . add the proceeds of any such sale to the Trust Fund.” Any
tangible personal property not so sold was to be distributed “to [Phyllis]’s descendants who
survive [her], per stirpes.” The trust gave $100,000 each to Thomas, Michael, and Teresa
if they were living and, if not, to their surviving descendants, per stirpes. The remaining
1
Because the parties and other relevant actors share the same surname, we will refer to them by their first
names.
1
balance of the Trust Fund was to be divided equally among Phyllis’s surviving
grandchildren.
[¶4] Five years later, in May 2014, Phyllis amended the trust (first amendment) to name
herself and Michael as co-trustees. In June 2016, Phyllis again amended the trust (second
amendment). This time, she named herself, Michael, and Thomas as co-trustees, added a
provision requiring an annual accounting, and amended the trust’s real property provisions
to give Thomas her house and property located on Moreland Avenue in Cheyenne after her
death. Several months later, in September 2016, Phyllis executed a third amendment to
the trust which revoked the second amendment and “adopt[ed], ratif[ied], and confirm[ed]”
the original trust and first amendment thereto.
[¶5] On December 15, 2016, Phyllis amended the trust for the fourth and final time. The
fourth amendment re-stated the terms of the original trust and first amendment and added
a no-contest provision, which stated:
Effect of Attempted Contest. In the event that any
person (1) directly or indirectly contests or attacks this [trust]
or any trust or beneficial interest created hereunder . . . or (2)
conspires with or voluntarily assists anyone associated with
any such contest or attack, singly or in conjunction with any
other person(s), then the Settlor specifically disinherits such
person and such person’s descendants; all interests and
properties given to or created for the benefit of such person and
such person’s descendants, directly or in trust, under this
[trust], shall be forfeited, and such property shall be disposed
[of] as if such person and their descendants had predeceased
the Settlor.
The trust outlined “the acts” constituting a “contest” for purposes of the no-contest
provision. Those “acts” included a “[d]irect or [i]ndirect contest” in which a “person
unsuccessfully contests or, in any manner, attacks or seeks to impair or invalidate any
provision of [the trust] . . . on any grounds whatsoever.” The trust also required the trustee
to provide notice of his intent to enforce the no-contest provision and give the person
contesting the trust an opportunity to dismiss or withdraw the contest to avoid
disinheritance:
Withdrawal of Contest. Notwithstanding the
foregoing, the [no-contest] provision[] . . . shall not apply
unless and until the [t]rustee has given written notice of such
fiduciary’s intent to enforce the foregoing provision[] against
a particular person to such person . . . and give[s] such person
the opportunity to voluntarily dismiss or withdraw any petition
2
or action that such fiduciary deems to constitute a contest or to
otherwise cooperate in defending or terminating a contest. If
such person dismisses or withdraws such petition, contest or
other claim or takes other actions requested by such fiduciary
within thirty (30) business days after receipt of such notice,
then th[e] [no-contest provision] shall not apply with respect to
such petition or contest or other claim; provided that such
fiduciary shall have the broadest permissible discretion in
terms of insisting on a particular form or scope of dismissal or
withdrawal in order to ensure that the petition, contest or other
claim will not reoccur.
[¶6] On December 31, 2017, Phyllis died and the trust became irrevocable. On January
26, 2018, Michael, acting as the sole trustee, notified the trust’s beneficiaries, including
Thomas, that they had 120 days from receipt of the notice in which to “commence a judicial
proceeding to contest the validity of the [t]rust” (hereinafter “statutory notice”). See Wyo.
Stat. Ann. § 4-10-604(a)(ii) (LexisNexis 2021). The United States Postal Service (USPS)
delivered the notice, with the trust attached, to Thomas’s address in Austin, Texas, on
February 2, 2018, giving him until June 4, 2018, to contest the trust’s validity.
[¶7] On May 15, 2018, Thomas filed an “Original Petition and Action for Equitable
Relief” in the District Court of the 459th Judicial District of Travis County, Texas (Texas
Lawsuit) against Michael and various attorneys who represented Michael. He alleged the
third and fourth amendments to the trust were invalid because Phyllis executed them under
duress and was unduly influenced by Michael and the other defendants. In addition to
requesting that the Texas court invalidate the third and fourth amendments, Thomas sought
an order quieting title to the Moreland Avenue property in him and an order requiring
Michael to make a full accounting of trust assets as required by the second amendment to
the trust.
[¶8] Two months later, Michael sent Thomas notice of his intent to enforce the trust’s
no-contest provision and informed him he had 30 business days to voluntarily dismiss or
withdraw the Texas Lawsuit with prejudice to avoid being disinherited. Thomas did not
dismiss or withdraw the Texas Lawsuit. On February 14, 2019, the Texas district court
dismissed the lawsuit against Michael and his attorneys who were not residents of Texas
for lack of personal jurisdiction. With respect to the remaining defendants who were Texas
residents, it dismissed the claims against them under Texas’s attorney-immunity doctrine.
The Texas Court of Appeals affirmed the dismissal. See McDill v. McDill, No. 03-19-
00162-CV, 2020 WL 4726634, *1 (Tex. Ct. App. July 30, 2020).
[¶9] In the meantime, Michael, acting as trustee, filed a Petition for Instructions
(Petition) with the Laramie County district court seeking confirmation that (1) Thomas’s
filing of the Texas Lawsuit triggered the no-contest provision; (2) Thomas had received
3
notice of Michael’s intent to enforce the trust’s no-contest provision; and (3) Thomas was
prohibited from taking under the trust because Thomas had failed to dismiss or otherwise
withdraw the Texas Lawsuit. He also sought confirmation of his proposed distribution of
the trust assets which called for Thomas to receive nothing and for he and Teresa to split
the $100,000 Thomas would have received had he not violated the no-contest provision.
[¶10] Thomas responded to the Petition asserting Michael had violated his fiduciary duties
as trustee; the first, third, and fourth amendments to the trust were the product of undue
influence; and application of the no-contest provision was contingent on the outcome of
the Texas Lawsuit. He subsequently filed an amended response requesting Michael be
removed as trustee for breach of trust based on his violations of the duty of loyalty, Wyo.
Stat. Ann. § 4-10-802 (LexisNexis 2021), and the duty to inform and report, Wyo. Stat.
Ann. § 4-10-813 (LexisNexis 2021). He also faulted Michael for urging Phyllis to add
language in the third and fourth amendments to the trust which disinherited Thomas,
eliminated the accounting requirements of § 4-10-813, and relieved Michael of wrongdoing
in violation of Wyo. Stat. Ann. § 4-10-1008 (LexisNexis 2021).
[¶11] Michael filed a motion for summary judgment arguing Thomas had forfeited his
status as a trust beneficiary under the no-contest provision by filing the Texas Lawsuit. As
a result, he sought confirmation of his proposed plan of distribution under which Thomas
would receive nothing and he and Teresa would split the $100,000 Thomas would have
received had he not violated the no-contest provision. Thomas sought a 20-day extension
of time to respond to Michael’s summary judgment motion. The district court granted the
request, giving Thomas until July 22, 2019, to file his response. Three days before the
deadline, Thomas requested an additional 20 days in which to file his response. The district
court denied this request. Thomas finally filed a response to the summary judgment motion
on August 9, 2019, but it was deemed untimely. The district court granted Michael’s
summary judgment motion, concluding Thomas was disinherited from taking under the
trust because he had violated its no-contest provision by filing and failing to dismiss the
Texas Lawsuit and confirming Michael’s proposed plan of distribution.
[¶12] Thomas appealed the district court’s summary judgment order. We dismissed the
appeal for lack of jurisdiction because the order was not appealable under Rule 1.05 of the
Wyoming Rules of Appellate Procedure (W.R.A.P.) as it failed to resolve the
counterclaims raised in Thomas’s amended response to the Petition for Instructions.
Matter of Phyllis V. McDill Revocable Tr., 2020 WY 99, ¶¶ 14, 16, 468 P.3d 694, 699
(Wyo. 2020).
[¶13] On remand, Michael filed a motion to dismiss Thomas’s counterclaims under
Wyoming Rule of Civil Procedure (W.R.C.P.) 12(b)(6), arguing, inter alia, Thomas did
not have statutory standing to bring his claims and his claims were barred by the statute of
limitations. Thomas responded to the motion and filed a motion to again amend his
4
response to the Petition for Instructions to clarify his counterclaims and to add affirmative
defenses.
[¶14] After a hearing, the district court granted Michael’s motion to dismiss and denied
Thomas’s motion to amend. Relevant here, it concluded (1) Thomas lacked statutory
standing to bring his breach of trust claims against Michael because he was no longer a
trust beneficiary due to his violation of the no-contest provision; and (2) his counterclaims
challenging the validity of certain language in the third and fourth amendments to the trust
were time barred under § 4-10-604(a)(ii) because he failed to bring them within 120 days
of his receipt of the statutory notice. It denied Thomas’s motion to amend because it was
unduly delayed and any amendment would be futile. Thomas timely appealed.
DISCUSSION
Summary Judgment
[¶15] Thomas argues the district court erred in granting summary judgment to Michael
for two reasons. First, he claims the court erred in relying on the factual allegations
contained in the Petition for Instructions because he entered a general denial to those
allegations under W.R.C.P. 8(b)(3). Second, he maintains the court erred as a matter of
law in determining his filing of the Texas Lawsuit violated the trust’s no-contest provision.2
[¶16] We review de novo the district court’s order granting summary judgment to
Michael. Bear Peak Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 10, 403
P.3d 1033, 1040 (Wyo. 2017).
“[W]e review a summary judgment in the same light as the
district court, using the same materials and following the same
standards. Snyder v. Lovercheck, 992 P.2d 1079, 1083 (Wyo.
1999); 40 North Corp. v. Morrell, 964 P.2d 423, 426 (Wyo.
1998). We examine the record from the vantage point most
favorable to the party opposing the motion, and we give that
party the benefit of all favorable inferences that may fairly be
drawn from the record. Id. A material fact is one which, if
proved, would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. Id. . . .”
2
Thomas also argues the evidence was insufficient to show he received the statutory notice. This argument
pertains to whether the district court properly dismissed certain counterclaims as barred by the statute of
limitations. As a result, we will discuss this argument in addressing the propriety of the court’s dismissal
order.
5
Id. (quoting Rogers v. Wright, 2016 WY 10, ¶ 7, 366 P.3d 1264, 1269 (Wyo. 2016), and
Inman v. Boykin, 2014 WY 94, ¶ 20, 330 P.3d 275, 281 (Wyo. 2014)). We also review de
novo the district court’s interpretation of the trust. Jackson as Tr. of Phillip G. Jackson
Fam. Revocable Tr. v. Montoya, 2020 WY 116, ¶ 16, 471 P.3d 984, 988 (Wyo. 2020)
(citing Gowdy v. Cook, 2020 WY 3, ¶ 39, 455 P.3d 1201, 1210-11 (Wyo. 2020), and Forbes
v. Forbes, 2015 WY 13, ¶ 23, 341 P.3d 1041, 1051 (Wyo. 2015)).
[¶17] The district court’s order granting Michael’s motion for summary judgment recited
what it found to be undisputed material facts and indicated that those facts came from both
Michael’s Petition for Instructions and his Statement of Facts submitted in support of
summary judgment. It relied on Thomas’s failure to deny some of those facts in his
responses to the Petition. Thomas claims the district court should not have relied on any
facts from the Petition because he generally denied those facts in his responses and they
were not “deemed admitted” under W.R.C.P. 8(b)(6) because the rules do not require a
response to a “petition.”3 It is unnecessary for us to address this issue because Michael
presented sufficient facts to support summary judgment without reliance on any facts
alleged in the “petition.”
[¶18] W.R.C.P. 56(a) requires a district court to “grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “‘The party requesting a summary judgment bears the initial
burden of establishing a prima facie case for summary judgment.’” Gowdy, ¶ 22, 455 P.3d
at 1207 (quoting Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12 (Wyo.
2006)). “Once the movant establishes a prima facie case for summary judgment, the
burden shifts to the opposing party to present materials demonstrating a genuine dispute as
to a material fact for trial.” Id., ¶ 23, 455 P.3d at 1207 (citing Hatton, ¶ 9, 148 P.3d at 12-
13). “‘“The opposing party must affirmatively set forth material, specific facts in
opposition to a motion for summary judgment[.]”’” Id. (quoting Jones v. Schabron, 2005
WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005), and Downen v. Sinclair Oil Corp., 887 P.2d
515, 519 (Wyo. 1994)).
[¶19] Michael provided copies of: (1) the trust and its amendments, including the fourth
amendment which contained the no-contest provision; (2) Thomas’s petition in the Texas
Lawsuit which sought to invalidate the third and fourth amendments to the trust; (3)
Michael’s notice of intent to enforce the trust’s no-contest provision; and (4) the tracking
confirmation demonstrating the notice of intent to enforce the no-contest provision was
delivered by certified mail to Thomas’s Texas address on July 23, 2018. Michael also
requested the district court take judicial notice that the Texas Lawsuit was dismissed and
provided a copy of the dismissal order. These documents established a prima facie case
that Thomas had violated the trust’s no-contest provision by filing the Texas Lawsuit
3
We need not determine whether the “petition” was in fact a complaint for declaratory judgment, to which
an answer would be required, or was something other than a pleading allowed by W.R.C.P. 7.
6
seeking to invalidate the third and fourth amendments to the trust and failing to dismiss or
withdraw it within 30 days of receiving notice of Michael’s intent to enforce the no-contest
provision.
[¶20] The burden then shifted to Thomas to present specific evidence demonstrating a
genuine dispute of material fact as to the validity of the no-contest provision or his violation
of it. He failed to meet his burden because he did not timely respond to the summary
judgment motion. As a result, the district court properly granted summary judgment to
Michael and ruled Thomas had forfeited his interest as a trust beneficiary by violating the
no-contest provision. See Magin v. Solitude Homeowner’s Inc., 2011 WY 102, ¶ 39, 255
P.3d 920, 932 (Wyo. 2011) (the district court properly granted summary judgment to
plaintiff because defendant did not file a response to plaintiff’s summary judgment motion
and therefore failed to raise any genuine issue of material fact for trial).
[¶21] Despite his failure to meet his summary judgment burden, Thomas nevertheless
argues the district court erred in interpreting the no-contest provision. According to him,
the provision requires a “contest” to be “unsuccessful,” which means it must be decided on
the merits such that it would be given res judicata effect. Thomas argues the dismissal of
his Texas Lawsuit on jurisdictional grounds is not a dismissal on the merits and not subject
to res judicata. Indeed, he points out he alleged the same claims raised in the Texas Lawsuit
as counterclaims in this lawsuit.
[¶22] There are two problems with Thomas’s argument. First, he failed to raise it in the
district court. “‘Issues raised for the first time on appeal generally will not be considered
by this court unless they are jurisdictional or issues of such a fundamental nature that they
must be considered.’” Gjertsen v. Haar, 2015 WY 56, ¶ 15, 347 P.3d 1117, 1123 (Wyo.
2015) (quoting Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d 671, 674 (Wyo. 2003)).
Thomas’s argument is neither jurisdictional nor fundamental. Second, his argument lacks
merit.
[¶23] “No-contest . . . clauses are valid in Wyoming.” Gowdy, ¶ 39, 455 P.3d at 1210
(citing EGW v. First Fed. Savings Bank of Sheridan, 2018 WY 25, ¶ 18, 413 P.3d 106, 110
(Wyo. 2018), and Dainton v. Watson, 658 P.2d 79, 81 (Wyo. 1983)). “The intent of the
settlor regarding contests to the trust is controlling.” Id. (citing EWG, ¶ 19, 413 P.3d at
111). We determine that intent from “the plain language contained in the four corners of
the [trust]. Where there is no ambiguity and the language is clear and susceptible of only
one construction, then the plain provisions of the trust instrument must be given effect.”
In re Est. of George, 2011 WY 157, ¶ 65, 265 P.3d 222, 235 (Wyo. 2011) (citing Rock
Springs Land & Timber, Inc. v. Lore, 2003 WY 100, 75 P.3d 614, 619-20 (Wyo. 2003)).
[¶24] The no-contest provision of the trust disinherits any person who “directly or
indirectly contests or attacks [the trust] or any trust or beneficial interest created
hereunder[.]” The trust states a “contest” occurs when, among other things, a person
7
“unsuccessfully contests or, in any manner, attacks or seeks to impair or invalidate any
provision of this [trust] . . . on any grounds whatsoever.” Thomas does not dispute the
Texas Lawsuit contested, attacked, or sought to impair or invalidate the trust. He argues
only that the Texas Lawsuit was not technically “unsuccessful” because it was dismissed
on jurisdictional grounds rather than on the merits.
[¶25] The plain meaning of “unsuccessful” is “not successful: not meeting with or
producing success.” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/unsuccessful (last visited Feb. 28, 2022). “Success” means
“favorable or desired outcome.” Id., https://www.merriam-
webster.com/dictionary/success (last visited Feb. 28, 2022). Thomas’s Texas Lawsuit was
“unsuccessful” because it did not produce a favorable or desired outcome. It was
dismissed.
[¶26] The district court did not err in granting summary judgment to Michael on his claim
Thomas forfeited his beneficiary status and was disinherited from taking under the trust
because he violated its no-contest provision.
Dismissal of Counterclaims
[¶27] Thomas argues the district court erred in dismissing his breach of trust
counterclaims against Michael for lack of statutory standing because that ruling was based
on its erroneous summary judgment decision that he was disinherited from taking under
the trust for violating the no-contest provision. With respect to his counterclaims seeking
to invalidate the third and fourth amendments to the trust, Thomas maintains there was
insufficient evidence showing he received the statutory notice necessary to trigger the 120-
day statute of limitations contained in § 4-10-604(a)(ii).
[¶28] Our review of the district court’s dismissal order is de novo. Craft v. State ex rel.
Wyo. Dep’t of Health, 2020 WY 70, ¶ 9, 465 P.3d 395, 399 (Wyo. 2020) (citing Allred v.
Bebout, 2018 WY 8, ¶ 29, 409 P.3d 260, 268 (Wyo. 2018)).
“[W]e employ the same standards and examine the same
materials as the district court: we accept the facts alleged in
[Thomas’s response to the Petition for Instructions] as true and
view them in the light most favorable to the non-moving
party.” Moose Hollow Holdings, LLC v. Teton Cty. Bd. of Cty.
Comm’rs, 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo.
2017) (quoting Guy v. Lampert, 2015 WY 148, ¶ 12, 362 P.3d
331, 335 (Wyo. 2015)). . . . Dismissal is appropriate only if it
is certain on the face of the [response that Thomas] cannot
assert any facts that create entitlement to relief. Dowlin v.
Dowlin, 2007 WY 114, ¶ 6, 162 P.3d 1202, 1204 (Wyo. 2007);
8
W.R.C.P. 12(b)(6); Ecosystem Res., L.C. v. Broadbent Land &
Res., L.L.C., 2007 WY 87, ¶ 8, 158 P.3d 685, 687 (Wyo. 2007).
Id. We also review de novo whether a party has standing to assert his claims and whether
an action is barred by the statute of limitations. HB Fam. Ltd. P’ship v. Teton Cty. Bd. of
Cty. Comm’rs, 2020 WY 98, ¶ 16, 468 P.3d 1081, 1087 (Wyo. 2020) (standing) (citations
omitted); Inman, ¶ 21, 330 P.3d at 281 (statute of limitations) (citations omitted).
[¶29] We start with Thomas’s standing argument. “‘A party generally has standing if it
is “properly situated to assert an issue for judicial determination.”’” Matter of Est. of
Stanford, 2019 WY 94, ¶ 9, 448 P.3d 861, 864 (Wyo. 2019) (quoting Gheen v. State ex rel.
Dep’t of Health, Div. of Healthcare Financing/EqualityCare, 2014 WY 70, ¶ 16, 326 P.3d
918, 923 (Wyo. 2014), and Cox v. City of Cheyenne, 2003 WY 146, ¶ 9, 79 P.3d 500, 505
(Wyo. 2003)). There are two types of standing: prudential and statutory. Id., ¶ 9, 448 P.3d
at 864 (citing In re L-MHB, 2018 WY 140, ¶¶ 19-20, 431 P.3d 560, 567 (Wyo. 2018)).
Prudential standing requires application of the Brimmer test, a four-part test to determine
“whether there is ‘such dispute which could serve as the basis of a justiciable issue[.]’”
Allred, ¶ 37, 409 P.3d at 270 (quoting Brimmer v. Thomson, 521 P.2d 574, 577 (Wyo.
1974)). Statutory standing, on the other hand, “looks to whether ‘this plaintiff has a cause
of action under [the subject] statute.”’ Stanford, ¶ 11, 448 P.3d at 864 (quoting In re L-
MHB, ¶ 20, 431 P.3d at 56 (Wyo. 2018), and Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 97 n.2, 118 S.Ct. 1003, 1013 n.2, 140 L.Ed.2d 210 (1998)). “Where the question
is statutory standing, prudential considerations do not play a role in the standing
determination.” Id.[¶30] Thomas’s breach of trust counterclaims alleged that Michael, as trustee, violated his
duties of loyalty and to inform and report to the beneficiaries under §§ 4-10-802 and 4-10-
813. Whether Thomas has a cause of action against Michael under these statutes is a
question of statutory standing. Stanford, ¶ 13, 448 P.3d at 865 (“The question of who has
standing to contest a petition for letters of administration is thus one of statutory
interpretation, not prudential considerations.”).
[¶31] The Uniform Trust Code imposes a duty of loyalty and a duty to inform and report
upon the trustee. Sections 4-10-802(a), 4-10-813. These duties are owed to the
beneficiaries and qualified beneficiaries of a trust, respectively. Sections 4-10-802(a) (“A
trustee shall administer the trust solely in the interests of the beneficiaries as their interests
are defined under the terms of the trust.”) (emphasis added), 4-10-813(a) (“A trustee shall
keep the qualified beneficiaries of the trust reasonably informed about the administration
of the trust and of the material facts necessary for them to protect their interests. . . .”)
(emphasis added). The Code also states: “[A] violation by a fiduciary of a duty the
fiduciary owes to a beneficiary is a breach of trust.” Wyo. Stat. Ann. § 4-10-1001(a)
(LexisNexis 2021) (emphasis added). Under the plain language of these provisions, it is
clear the legislature intended only qualified beneficiaries and beneficiaries to have standing
9
to assert a breach of trust claim against a trustee. Thomas is not a beneficiary or qualified
beneficiary of the trust because, as we explained above, he lost his beneficiary status by
violating the no-contest provision. See Wyo. Stat. Ann. § 4-10-103(a)(ii) (LexisNexis
2021) (defining beneficiary as “a person that . . . [h]as a present or future beneficial interest
in a trust, vested or contingent; or . . . [i]n a capacity other than that of trustee or trust
protector, holds a power of appointment over trust property”), (a)(xv) (“‘Qualified
beneficiary’ means . . . “[a] beneficiary who is currently entitled to mandatory distributions
of income or principal from the trust or has a vested remainder interest in the residuary of
the trust which is not subject to divestment.”). As a result, the district court correctly
decided Thomas lacked statutory standing to bring his breach of trust counterclaims against
Michael.
[¶32] Turning to Thomas’s counterclaims which attack the validity of the third and fourth
amendments to the trust, § 4-10-604(a) provides:
Subject to the rights of persons dealing with a fiduciary
as provided in W.S. 4-10-1013, a person may commence a
judicial proceeding to contest the validity of a trust that is
revocable during the settlor’s life or an amendment thereto
within the earlier of:
(i) Two (2) years after the settlor’s death; or
(ii) One hundred twenty (120) days after the trustee sent
the person a copy of the trust instrument and a notice informing
the person of the trust’s existence, of the trustee’s name and
address and of the time allowed for commencing a proceeding.
Section 4-10-604(c) states: “For purposes of paragraph (a)(ii) of this section, notice shall
have been given when received by the person to whom the notice was given. Absent
evidence to the contrary, it shall be presumed that delivery to the last known address of
that person constitutes receipt by that person.”4
4
Thomas relies on Wyo. Stat. Ann. § 4-10-109(a) (LexisNexis 2021) for his argument that there was
insufficient evidence showing he received the statutory notice necessary to trigger the 120-day statute of
limitations contained in § 4-10-604(a)(ii). Section 4-10-109(a) provides:
Notice to a person under [the Uniform Trust Code] or the sending of a document to a person
under this [Code] shall be accomplished in a manner reasonably suitable under the
circumstances and that results in receipt of the notice or document. Permissible methods of
notice, or for sending a document, include first-class mail, personal delivery, delivery to
the person’s last known place of residence or place of business or a properly directed
electronic message.
While this statute generally governs notices under the Code, § 4-10-604(c) controls because it specifically
addresses statutory notice under § 4-10-604(a)(ii). See Olsen v. State, 2003 WY 46, ¶ 168, 67 P.3d 536,
10
[¶33] Thomas claims the only evidence demonstrating he received statutory notice
triggering the 120-day statute of limitations was a USPS tracking printout, which was
inadmissible hearsay, lacked authenticity, and failed to indicate what was delivered, to
whom it was delivered, or where it was delivered. Because there was insufficient evidence
showing he received the statutory notice, he claims the two-year statute of limitations
contained in § 4-10-604(a)(i) applies and his counterclaims were timely because they were
filed on May 20, 2019, within two years of Phyllis’s death.
[¶34] Thomas did not raise this argument in the district court. He did not claim he failed
to receive statutory notice or argue that the USPS tracking printout was insufficient to show
he received the statutory notice. In response to Michael’s motion to dismiss, Thomas
simply claimed his counterclaims were not barred by the statute of limitations and
Michael’s argument to the contrary “incorrectly assumes the Texas litigation has been
finally concluded when it has not.” As a result, we need not consider this argument.
Gjertsen, ¶ 15, 347 P.3d at 1123. In any event, because he did not provide any evidence
that the statutory notice was not delivered to his last known address, he failed to overcome
the presumption contained in § 4-10-604(c) that he received the statutory notice.
[¶35] The district court did not err in dismissing Thomas’s counterclaims for lack of
statutory standing and on statute of limitations grounds.
Denial of Motion to Amend
[¶36] We review a district court’s denial of a motion to amend for an abuse of discretion.
Halling v. Yovanovich, 2017 WY 28, ¶ 22, 391 P.3d 611, 619 (Wyo. 2017) (citation
omitted). In determining whether a district court abused its discretion, “‘[o]ur touchstone
inquiry . . . is whether the trial court could have reasonably concluded as it did.’” Id.(quoting Gould v. Ochsner, 2015 WY 101, ¶ 39, 354 P.3d 965, 977 (Wyo. 2015), and Lavitt
v. Stephens, 2015 WY 57, ¶ 13, 347 P.3d 514, 518 (Wyo. 2015)).
[¶37] W.R.C.P. 15(a)(2) states: “[A] party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice
so requires.”
596 (Wyo. 2003) (“Where a general statute and a specific statute speak to the same concern, precedence is
given to the terms of the more specific statute.”).
11
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be freely given.
Gaston v. Life Care Ctrs. of Am., 2021 WY 74, ¶ 18, 488 P.3d 929, 936 (Wyo. 2021)
(quoting Foxley & Co. v. Ellis, 2009 WY 16, ¶ 32, 201 P.3d 425, 433 (Wyo. 2009), and
Beaudoin v. Taylor, 492 P.2d 966, 970 (Wyo. 1972)). “The same standard applies when a
counterclaimant seeks to amend a counterclaim.” Singer v. Lajaunie, 2014 WY 159, ¶ 25,
339 P.3d 277, 285 (Wyo. 2014) (citing Hawkeye–Security Ins. Co. v. Apodaca, 524 P.2d
874, 879 (Wyo. 1974)).
[¶38] Thomas argues the district court abused its discretion by denying his motion to
amend because amendment “would have allowed the court to finally do justice in this
matter complete with well-formulated Pleadings, Discovery, Motions and Trial.”
Although “[t]his type of perfunctory argument usually results in our refusal to consider the
issue,” we will nevertheless address it “because the denial of a motion for leave to amend
. . . is, in effect, the death knell for the case.” Daniels v. Carpenter, 2003 WY 11, ¶ 32, 62
P.3d 555, 566 (Wyo. 2003) (citing Mt. Rushmore Broadcasting, Inc. v. Statewide
Collections, 2002 WY 39, ¶ 12, 42 P.3d 478, 482 (Wyo. 2002), 40 North Corp., 964 P.2d
at 427, and Scherling v. Kilgore, 599 P.2d 1352, 1359 (Wyo. 1979)).
[¶39] Thomas did not file his motion to amend until over two years after the Petition for
Instructions was filed, approximately five months after the case was remanded from this
Court following his first appeal, and over three months after Michael filed his motion to
dismiss. Thomas’s motion to amend came after the district court had granted summary
judgment in favor of Michael and determined Thomas was disinherited from the trust due
to his violation of the no-contest provision. It also came just four days before the court’s
scheduled hearing on Michael’s motion to dismiss. Thomas offered no reasons justifying
the delay in seeking amendment other than that his previous response and amended
response were filed pro se, which is an insufficient excuse for the delay. Cf. Wood v. Wood,
2018 WY 93, ¶ 11, 424 P.3d 247, 250 (Wyo. 2018) (although pro se litigants are “entitled
to ‘a certain leniency’ from the more stringent standards accorded formal pleadings drafted
by lawyers[,] . . . the administration of justice requires reasonable adherence to procedural
rules and requirements of the court.” (quoting Osborn v. Painter, 909 P.2d 960, 965 (Wyo.
1996))) (other citation omitted). Under these circumstances, we cannot say the district
court acted unreasonably in denying Thomas’s motion to amend for undue delay. Halling,
¶ 25, 391 P.3d at 620 (district court did not abuse its discretion by denying for undue delay
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defendant’s motion for leave to amend its answer to add a counterclaim against plaintiff
where motion was made after district court granted summary judgment to plaintiff); Foxley,
¶ 33, 201 P.3d at 433 (district court did not abuse its discretion by denying motion to file a
second amended complaint where motion was made seven months after original complaint
was filed, after extensive discovery had ensued, and one month after defendant’s summary
judgment motion was filed).
[¶40] Moreover, the district court correctly decided Thomas’s proposed amendments
would be futile. “‘A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal for any reason, including that the amendment would not survive a
motion for summary judgment.’” Halling, ¶ 26, 391 P.3d at 620 (quoting Watson v. Beckel,
242 F.3d 1237, 1239-40 (10th Cir. 2001)). The proposed amended response asserted the
following counterclaims: (1) the third and fourth amendments to the trust were the product
of undue influence and therefore void; (2) Michael breached his duty to provide a trust
accounting; and (3) Michael breached his fiduciary duty by unlawfully converting and
wasting trust assets. It also claimed Michael’s violations of his fiduciary duties
necessitated his removal as trustee. As we discussed above, the proposed counterclaims
seeking to invalidate the third and fourth amendments to the trust and to hold Michael, as
trustee, liable for breach of trust would be subject to dismissal under the statute of
limitations and for lack of statutory standing, respectively. Moreover, because Thomas is
disinherited from taking under the trust, he could not state a claim for conversion of trust
assets as he does not have legal title to, or the right to possess, any of those assets. See
Tozzi v. Moffett, 2018 WY 133, ¶ 19, 430 P.3d 754, 760 (Wyo. 2018) (a plaintiff alleging
conversion must prove, among other things, “‘he had legal title to the converted property’”
and “‘he either had possession of the property or the right to possess it at the time of the
conversion’” (quoting Johnson v. Reiger, 2004 WY 83, ¶ 27, 93 P.3d 992, 999-1000 (Wyo.
2004)).
[¶41] The district court did not abuse its discretion in denying Thomas’s motion to amend.
CONCLUSION
[¶42] The district court did not err in granting summary judgment to Michael on his claim
Thomas was disinherited from taking under the trust for violating its no-contest provision.
It also did not err in dismissing Thomas’s breach of trust counterclaims for lack of statutory
standing and his counterclaims attacking the validity of the third and fourth amendments
of the trust as untimely. The court did not abuse its discretion in denying Thomas’s motion
to amend his response to the Petition for Instructions. We affirm the district court’s
judgment in all respects.
[¶43] Michael requests we assess the costs of this appeal to Thomas because he
improperly captioned the appeal, included a timeline in the appendix that is not in the
record, and failed to include a jurisdictional statement, a statement of costs, or cogent
13
argument in his brief. He does not request his attorney fees. Michael’s request for costs is
unnecessary as the costs of this appeal will automatically be awarded to him in the Journal
Order on Opinion. W.R.A.P. 10.05 (“When the judgment or appealable order is affirmed
in a civil case, appellee shall recover costs.”). However, we revise the caption of this appeal
to strike the reference to Thomas as “successor trustee” and to reflect that Michael is acting
solely in his capacity as trustee of the trust.
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