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In re Fenner

Court of Appeals of Oregon

November 1, 2017

In the Matter of the John B. Fenner Revocable Living Trust, u/a/d Roberta L. FENNER, in her capacity as a benefciary of the John B. Fenner Revocable Living Trust, u/a/d Appellant,
v.
Hillary H. FENNER, in her capacity as a benefciary of the John B. Fenner Revocable Living Trust, u/a/d; Robert Dorszynski, in his capacity as Trustee of the John B. Fenner Revocable Living Trust, u/a/d; Grace Hartwick Fenner, in her capacity as a benefciary of the John B. Fenner Revocable Living Trust, u/a/d; and John Buhl Fenner, in his capacity as a benefciary of the John B. Fenner Revocable Living Trust, u/a/d, Respondents.

          Argued and submitted March 8, 2016

         Benton County Circuit Court 0810354 David B. Connell, Judge.

          Matthew Whitman argued the cause and fled the briefs for appellant.

          Jan K. Kitchel argued the cause for respondent Hillary H. Fenner. With him on the brief was Cable Huston LLP.

          No appearance for respondents Robert Dorszynski, Grace Hartwick Fenner, and John Buhl Fenner.

         [288 Or. 541]Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Roberta Fenner appeals a limited judgment dismissing her petition for declaratory relief. Roberta sought a declaration that her sister, Hillary Fenner, had forfeited her interest in their father's trust under the trust's no-contest clause when Hillary fled a petition that included a request to have declared void the sixth amendment to the trust. The trial court concluded that Hillary's petition did not violate the no-contest clause and dismissed Roberta's petition for declaratory relief. Held: Hillary's petition did not violate the no-contest clause because Hillary did not seek to set aside the trust agreement in that petition. However, because the trial court dismissed the action, the judgment is vacated and remanded for the trial court to enter a judgment that declares the parties' respective rights.

         Vacated and remanded.

         [288 Or. 542] ARMSTRONG, P. J.

         Roberta Fenner appeals a limited judgment dismissing her petition for declaratory relief that she filed in the probate case involving her father's trust. Roberta sought a declaration that her sister, Hillary Fenner, had forfeited her interest in their father's trust under the trust's no-contest clause by filing a petition that included a request for a declaration that the sixth amendment to the trust was void. On successive motions for summary judgment, the trial court dismissed Roberta's petition, concluding that Hillary's petition had not triggered the no-contest clause. We also conclude that Hillary's petition did not trigger the no-contest clause as alleged by Roberta in her petition for declaratory relief for the reason that Hillary did not seek to set aside the trust agreement. However, the trial court's dismissal of Roberta's petition for declaratory relief was not the proper disposition of the case. We therefore vacate the judgment and remand for the trial court to enter a judgment that declares the rights of the parties consistent with this opinion.

         "When, as here, the facts are not in dispute, we review rulings on cross-motions for summary judgment to determine whether either party is entitled to judgment as a matter of law." Busch v. Farmington Centers Beaverton, 203 Or.App. 349, 352, 124 P.3d 1282 (2005), rev den, 341 Or. 216 (2006). We take the following undisputed facts from the affidavits and documents submitted with the parties' motions for summary judgment, as supplemented by the pleadings in the case.

         John Fenner created the John B. Fenner Revocable Living Trust dated August 5, 1998 (the trust). John has two children-Roberta and Hillary-both of whom were designated beneficiaries of trust property upon John's death. John served as co-trustee of the trust until 2007, when a stroke rendered him unable to serve as a trustee. On May 1, 2008, John's cotrustee, Schaefer, filed a petition in probate court seeking to be allowed to resign as a trustee and for the court to appoint a new trustee. Schaefer alleged that, under the terms of the trust, John was "disabled, " and the people entitled to appoint a successor trustee for him had failed to [288 Or. 543] do that. Schaefer's petition initiated the probate case from which this appeal comes to us.

         Roberta objected to the court appointing a trustee for the trust on the ground that the sixth amendment to the trust, dated May 7, 2008, had appointed her as the sole trustee. Hillary objected to Roberta serving as trustee, and both Schaefer and Hillary called into question the validity of the sixth amendment to the trust. The court promptly ...


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