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Herman v. Herman

Supreme Court of North Dakota

October 29, 2019

Paul E. Herman, Plaintiff and Appellant
v.
Holly Herman and Harris Widmer, as Co-Trustees of the Herman Family Trust, u/a/d/ February 3, 1993, Holly Herman, individually, Defendants and AppelleesandVilla Nazareth d/b/a Riverview Place, The Salvation Army, Dakota Boys and Girls Ranch, Alzheimer's Disease and Related Disorders Association, Hamline University, Bethany Homes, Great Plains Food Bank, Ada Public School System, Emily Herman, Leah Herman, and Michelle Herman, Defendants

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Susan Lynne Bailey, Judge.

          Sean Foss, Fargo, ND, for plaintiff and appellant.

          Andrew Cook, West Fargo, ND, for defendants and appellees.

          OPINION

          Jensen, Justice

         [¶1] Paul Herman appeals from a judgment entered in favor of the trustees of a family trust [collectively the Trustees] following the district court's granting of the Trust's motion for summary judgment. Herman asserts the district court erred by finding the 120 day period to challenge the actions of the Trustees expired before he initiated these proceedings without providing him an opportunity to conduct discovery. We conclude the 120 day limitation period under N.D.C.C. § 59-10.1-03(1) does not begin until receipt of the notice of the Trustees actions, reverse the judgment of the district court, and remand with instructions to allow Herman additional time to conduct discovery pursuant to his request under N.D.R.Civ.P. 56(f).

         I

         [¶2] Herman is a beneficiary of a family trust. On June 23, 2018, under N.D.C.C. § 59-10.1-03(1), the Trustees sent Herman notice of proposed amendments to the family trust and a proposed distribution of the trust's assets. The notice was sent to Herman at his last known address. Having moved in September of 2017, Herman no longer resided at the address where the notice was sent. Delivery to the address to which the notice was addressed and from which Herman had moved was confirmed to have occurred on June 25, 2018. Herman concedes he received a copy of the notice, but he does not recall when he received the notice.

         [¶3] Herman commenced this action on October 25, 2018. Four days later, on October 29, 2018, the Trustees moved for summary judgment arguing the 120 day time limitation provided by N.D.C.C. § 59-10.1-03(1) to challenge the trust had lapsed. Herman responded to the motion for summary judgment, in part, by requesting additional time to conduct discovery to obtain information to rebut the presumption he received the notice from the trust on the date it was delivered to his last known address. The district court granted summary judgment after finding the 120 day limitation period had expired before Herman initiated this action.

         [¶4] Herman agrees N.D.C.C. § 59-10.1-03(1) creates a presumption he received the notice sent by the Trustees on the date it was delivered to his last known address. He also concedes the 120 day limitation period expired before this action was started if the period begins to run from the date delivery was made to his last known address. He argues the presumption he received the notice on the date of delivery is rebuttable, he should be allowed to rebut the presumption by establishing when he received notice, and if the notice was received after the date the notice was delivered to his former address his action was timely. He contends the district court abused its discretion in denying his request to conduct discovery to obtain information regarding when he received the notice.

         II

         [¶5] In response to the motion for summary judgment, Herman requested additional time to conduct discovery, under N.D.Civ.P. 56(f), to establish the date he received notice from the Trustees. The district court denied the request for additional time to conduct discovery after finding "[f]actual questions concerning what date Plaintiff actually received notice of his right to contest the Trust or why the Trustees addressed the notice to a prior address are immaterial to the calculation of the time within which Plaintiff was required to commence action here."

         [¶6] A person seeking to challenge the modification of a trust must commence an action at the earliest of the following: 120 days after being notified of the modification, three years after the settlor's death, within the time in which a petition for review of a will could be filed under state law for some revocable trusts, or the date an individual's right to contest was precluded by adjudication, consent, or other limitation. In this case, the Trustees seek to apply the first period of limitation which is governed by N.D.C.C. § 59-10.1-03(1) and reads as follows:

         A proceeding under this chapter may not be commenced later than the earliest of the following:

1. One hundred twenty days after the date the trustee notified the individual contesting the trust of the trust's existence or amendment. The notice must include the trustee's name and address and a copy of the trust instrument with amendments, if any, and must inform the recipient of the time allowed under this section for initiating a proceeding to contest the trust. A trustee may not have any liability under the governing instrument, to a third party, for failure to provide a notice under this subsection. Service of this notice is ...

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