John W. Dixon, Petitioner and Appellant
Billie Dixon, Respondent and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce B. Haskell, Judge.
W. Hennessy, Williston, ND, for petitioner and appellant.
Spencer D. Ptacek, Bismarck, ND, for respondent and appellee.
1] John Dixon appeals from a summary judgment dismissing his
action to remove Billie Dixon as trustee of the Shirley A.
Dixon Trust and seeking reimbursement, an accounting and
court supervision of the trust. We conclude the case is not
moot and genuine issues of material fact preclude disposition
by summary judgment. We reverse and remand for further
2] Billie Dixon and John Dixon are two of Shirley Dixon's
four children. In 1972 the Shirley A. Dixon Revocable Trust
was created and her husband, William Dixon, was appointed
trustee. The trust was amended three times over the years.
The trust agreement provided that, if William Dixon did not
survive Shirley Dixon, the four children would become
remainder beneficiaries of the trust and the trust property
would be allocated equally to them upon her death. In her
1984 amendment to the trust agreement, Shirley Dixon
provided: "The Trustee shall render annual accountings
to the Grantor while living, and to the beneficiaries during
the term of this Trust, showing in detail receipts,
disbursements, and distributions of both principal and income
of the trust property." The 1984 amendment also
prohibited the trustee from "dispos[ing] of the
principal or income of the Trust for less than an adequate or
full consideration in money or money's worth." In
2009 William Dixon resigned as trustee and Billie Dixon was
appointed successor trustee. William Dixon died in 2010.
3] In 2013 Billie Dixon, as trustee, sued John Dixon to
reform a warranty deed their father executed conveying a
tract of McKenzie County real property to John Dixon. Billie
Dixon contended William Dixon intended to reserve the mineral
interests as property of the trust. The district court agreed
and reformed the warranty deed to reserve and except the
minerals and retain the mineral interests as property of the
trust to be distributed in accordance with the trust's
terms and conditions. We affirmed the court's decision in
Dixon v. Dixon, 2017 ND 174, ¶ 1, 898 N.W.2d
4] Shortly after the reformation action was commenced in
2013, John Dixon sued Billie Dixon seeking an accounting of
the trust, her removal as trustee, court supervised
administration of the trust, reimbursement of the trust for
unauthorized distributions, and his attorney fees expended in
the action. During multiple trial postponements, Shirley
Dixon died in 2015. About two months before the scheduled
February 2017 trial, Billie Dixon moved for summary judgment
dismissal of the lawsuit. The district court granted the
motion and dismissed the action. The court ruled: 1) Billie
Dixon, as trustee, acted properly in bringing the 2013
reformation action against John Dixon; 2) John Dixon
"provided no evidence that any gifts from the Trust were
not provided pursuant to the wishes of Shirley A.
Dixon"; 3) the failure to provide annual accountings did
not justify Billie Dixon's removal as trustee because
John Dixon "has not established that this violation
results in danger of loss of trust property" and Shirley
Dixon "is deceased and the Trust is being wound
up"; and 4) the lawsuit was moot because the 2013
reformation action had been resolved and Shirley Dixon had
5] John Dixon argues the district court erred in ruling his
lawsuit is moot.
6] A case becomes moot when, because of the lapse of time or
the occurrence of events, a court is unable to render
effective relief. See Schwartzenberger v. McKenzie
Cty. Bd. of Cty. Comm'rs, 2017 ND 211, ¶ 6, 901
N.W.2d 64; Simpson v. Chicago Pneumatic Tool Co.,
2003 ND 31, ¶ 7, 657 N.W.2d 261; Bland v. Comm'n
on Med. Competency, 557 N.W.2d 379, 381 (N.D. 1996).
"A trial court properly dismisses a case for mootness if
the case 'has lost its character as a present, live
controversy of the kind that must exist if we are to avoid
advisory opinions on abstract questions of law.'"
Tibert v. City of Minto, 2004 ND 97, ¶ 10, 679
N.W.2d 440 (quoting St. Louis Fire Fighters Ass'n v.
City of St. Louis, 96 F.3d 323, 329 (8th Cir. 1996)).
Mootness is a threshold issue we decide before reaching the
merits of an appeal, see Simpson, at ¶ 7, and
we review de novo a district court's legal conclusion of
mootness. See Tibert, at ¶ 9.
7] The district court's reasoning that this case has been
mooted by resolution of the 2013 reformation action and
Shirley Dixon's death is puzzling. The mineral interests
determined to be trust property through the reformation
action are irrelevant to the mootness question here. Billie
Dixon's argument that the case is mooted by Shirley
Dixon's death because a determination of her "best
interests" would be "academic" and effective
relief could no longer be granted also misses the point.
Actions against a trustee for breach of trust are authorized
under N.D.C.C. ch. 59-18 of the North Dakota Uniform Trust
Code (U.T.C.). A violation by a trustee of a duty owed to a
beneficiary is a breach of trust. See N.D.C.C.
§ 59-18-01(1) (U.T.C. § 1001). A
"beneficiary" is a person who has a "present
or future beneficial interest in a trust, vested or
contingent." N.D.C.C. § 59-09-03(3)(a) (U.T.C.
§ 103). "A trustee who commits a breach of trust is
liable to the beneficiaries affected for the greater of the
amount required to restore the value of the trust property
and trust distributions to what they would have been had the
breach not occurred or the profit the trustee made by reason
of the breach." N.D.C.C. § 59-18-02(1) (U.T.C.
§ 1002). This action was commenced ...