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Langer v. Pender

April 6, 2009

HENRY J. LANGER AND MARY ANN WEISS, PLAINTIFFS AND APPELLANTS
v.
PHILLIP M. PENDER, INDIVIDUALLY, AS TRUSTEE OF THE PHILLIP M. PENDER AND JOSEPHINE I. PENDER REVOCABLE INTER VIVOS TRUST AGREEMENT DATED NOVEMBER 20, 1996, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPHINE I. PENDER, DEFENDANT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

MODIFIED AND AFFIRMED.

[¶1] Henry J. Langer and Mary Ann Weiss appeal from a district court judgment dismissing on summary judgment their declaratory judgment action against Phillip M. Pender to enforce the terms of a revocable inter vivos trust agreement. We hold the district court properly concluded that the trust agreement remained revocable after the death of Josephine I. Pender and that Phillip Pender's revocation of the trust was in compliance with the trust agreement. We modify and affirm.

I.

[¶2] On November 20, 1996, Josephine Pender and Phillip Pender, as husband and wife, executed a "Revocable Inter Vivos Trust" agreement. The introductory paragraphs of the trust agreement contain the declaration of trust, in addition to naming the primary beneficiaries of the trust, stating:

THIS DECLARATION OF TRUST, made and entered into on the date set forth on the signature page hereto, by and between Phillip M. Pender and Josephine I. Pender, of Cass County, State of North Dakota, hereinafter sometimes referred to in the aggregate as "Trustors," or individually as "Husband" and "Wife" respectively, "Spouse," or as ["]Co-trustors," and Phillip M. Pender and Josephine I. Pender, of Cass County, State of North Dakota, hereinafter referred to as "Co-trustees" or sometimes as "Trustee(s)," "Initial Co-trustees" or "Initial Trustees." Reference in this Trust to the "Trustors," or any variation thereof, shall be a reference to the "Grantors" or "Settlors" of the Trust, all three words being, for these purposes, synonymous. Reference to the "Trustee(s)" shall be deemed a reference to whoever is serving as Trustee, or Co-trustee, whether original, alternate or any successor thereof, and references to "Trust" or "Trust Estate" shall be interchangeable as the context allows and relate to the Separate Trust Estate of the various trusts created herein when such terms are used in connection therewith. The primary Beneficiaries of this Trust shall be Phillip M. Pender and Josephine I. Pender.

(Emphasis added.)

[¶3] The trust agreement purports to create several trusts. Specifically, Article 18 of the trust agreement states: "The Revocable Inter-Vivos Trust shall be referred to as the PENDER FAMILY LIVING TRUST. Other trusts created herein may be known by other names as provided in the ARTICLES and Sections creating them." For purposes of this opinion, the "Pender Family Living Trust" will hereafter be referred to as the "Pender Trust." The trust agreement also expressly purports to create the Pender Special Trust [Article 1(D)], Decedent's Trust [Article 1(D)(4)], Survivor's Trust [Article 1(D)(4)], and Pender Vehicle Trust [Article 1(E)].

[¶4] After executing the trust agreement, Josephine Pender conveyed to the trust certain real property, which she had held in her own name. Josephine Pender also executed a will, which upon her death transferred her interest in another parcel to the trust for distribution according to its terms. Josephine Pender and Phillip Pender were married later in life and had no children together. Josephine Pender and Phillip Pender were named as co-trustees of the trust, and Phillip Pender is the personal representative of Josephine Pender's estate. In June 2006, Josephine Pender died. In April 2007, Phillip Pender transferred the specified trust property to himself through a trustee's deed, as trustee of the Survivor's Trust created under the trust agreement.

[¶5] In June 2007, Langer and Weiss, Josephine Pender's brother and sister, began this action against Phillip Pender in his individual capacity, as the trustee of the Phillip M. Pender and Josephine I. Pender Revocable Inter Vivos Trust agreement, and as the personal representative of the Josephine I. Pender estate. Langer and Weiss alleged that Phillip Pender improperly transferred real property to himself, violating Josephine Pender's estate planning documents, including the trust agreement. Langer and Weiss sought rescission of the trustee's deed and personal representative's deed, which Phillip Pender had executed in his capacity as trustee and as personal representative, conveying the certain real property to himself individually. Langer and Weiss also sought to require Pender to convey the property to Langer and Weiss, as tenants in common. Langer and Weiss sought reasonable attorney's fees and costs based upon Phillip Pender's alleged breach of fiduciary duties to both Josephine Pender's estate and the trust.

[¶6] Langer and Weiss moved for summary judgment, and Phillip Pender responded by opposing their motion and filing a motion for summary judgment. In December 2007, the district court held a hearing on the parties' motions. In February 2008, the court entered an order denying Langer and Weiss's summary judgment motion, and instead granted summary judgment in favor of Phillip Pender, individually and in his various capacities.

[¶7] The district court concluded as a matter of law that the Revocable Inter Vivos Trust agreement entered into by Phillip Pender and Josephine Pender remained revocable until both trustors have died. The court held that Phillip Pender's actions in revoking the trust were in compliance with the trust agreement. The court further determined that Langer and Weiss were eliminated as beneficiaries as a result of contesting the trust in this action. The court also concluded, in the alternative, that if this Court determined that the trust was so hopelessly conflicting as to render it unenforceable, then "in the alternative, the trust fails and any conveyance or devise to the trust fails."

[¶8] Langer and Weiss thereafter moved the court to reconsider its summary judgment decision, which the court denied. Langer and Weiss appealed from the judgment granting the motion for summary judgment and from the order denying the motion to reconsider. [¶9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-23-01. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01, 28-27-02, and 32-23-07.

II.

[¶10] Under N.D.R.Civ.P. 56(c), summary judgment is appropriate "if either litigant is entitled to judgment as a matter of law and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes will not alter the result." Duemeland v. Norback, 2003 ND 1, ¶ 8, 655 N.W.2d 76. Whether the district court properly granted a summary judgment motion "is a question of law that we review de novo on the record." Trinity Hosps. v. Mattson, 2006 ND 231, ¶ 10, 723 N.W.2d 684.

[¶11] A party who moves for summary judgment must demonstrate "no genuine issues of material fact [exist] and the case is appropriate for judgment as a matter of law." Trinity Hosps., 2006 ND 231, ¶ 10, 723 N.W.2d 684. In deciding whether summary judgment was properly granted, "we . . . view the evidence in the light most favorable to the party opposing the motion," giving that party "the benefit of all favorable inferences which can reasonably be drawn from the record." Hasper v. Center Mut. Ins. Co., 2006 ND 220, ¶ 5, 723 N.W.2d 409. "[I]f the movant meets its initial burden of showing the absence of a genuine issue of material fact, the party opposing the motion may not rest on mere allegations or denials in the pleadings, but must present competent admissible evidence by affidavit or other comparable means to show the existence of a genuine issue of material fact." Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 4, 688 N.W.2d 167.

[¶12] Additionally, while our rules do provide for a "motion to reconsider," where appropriate, "we have treated such motions as motions to alter or amend the judgment under N.D.R.Civ.P. 59(j), which may be reversed if the [district] court misinterpreted or misapplied the law." White v. Altru Health System, 2008 ND 48, ¶ 7, 746 N.W.2d 173; see also Ellingson v. Knudson, 498 N.W.2d 814, 817 n.5 (N.D. 1993) (treating motions to reconsider summary judgment like motions to amend or alter judgment under N.D.R.Civ.P. 59(j)). The district court's decision on a Rule 59(j) motion is reviewed under the abuse of discretion standard. Korynta v. Korynta, 2006 ND 17, ¶ 7, 708 N.W.2d 895. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Id. (quotation omitted).

III.

[¶13] This case involves the interpretation of a 48-page trust agreement executed by Josephine Pender and Phillip Pender on November 20, 1996. This Court's primary objective in construing a trust instrument is to ascertain the settlor's intent. Alerus Fin., N.A. v. Western State Bank, 2008 ND 104, ¶ 21, 750 N.W.2d 412; Matter of Estate of Schmidt, 1997 ND 244, ¶ 13, 572 N.W.2d 430. "When a trust instrument is unambiguous, the settlor's intent is ascertained from the language of the trust document itself." Hecker v. Stark County Soc. Serv. Bd., 527 N.W.2d 226, 230 (N.D. 1994). "Whether or not a trust is ambiguous is a question of law, fully reviewable on appeal." Id.

[¶14] General rules of construction of written documents apply to the construction of trust instruments. See Alerus, 2008 ND 104, ¶¶ 18-19, 750 N.W.2d 412. In North Dakota, the interpretation of a contract is governed by N.D.C.C. ch. 9-07. Under N.D.C.C. § 9-07-02, the contract language governs its interpretation "if the language is clear and explicit and does not involve an absurdity." Contracts are construed to give effect to the parties' mutual intention at the time of contracting "so far as the same is ascertainable and lawful." N.D.C.C. § 9-07-03. The rules provided in N.D.C.C. ch. 9-07 are applied "[f]or the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful . . . ." N.D.C.C. § 9-07-03. "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of [N.D.C.C. ch. 9-07]." N.D.C.C. § 9-07-04. "The whole of a contract is to be taken together so as to give effect to every part if reasonably practicable. Each clause is to help interpret the others." N.D.C.C. § 9-07-06.

[¶15] "A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties." N.D.C.C. § 9-07-08. "Particular clauses of a contract are subordinate to its general intent." N.D.C.C. § 9-07-15 (emphasis added). "Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clause subordinate to the general intent and purposes of the whole contract." N.D.C.C. § 9-07-17. "Words in ...


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