2009-356, Lillian E. Billewicz & a. v. John C. Ransmeier & a.

No. 2009-356

Rockingham County Probate Court

Probate Court (Patten several trusts, John Kalled, appeal the decision of the Rockingham County Billewicz, by and through Lillian Billewicz; and the Interim Trustee of their HICKS, J. Plaintiffs Lillian Billewicz; Johnathan Billewicz and Michael

Ransmeier & Spellman, P.C.

a

Kalled Law Offices, PLLC

508:4 (2010). We affirm. upon the statutes of limitation. See RSA 564-B:10-1005(c)(1) (2007); RSA Ransmeier and Ransmeier & Spellman to dismiss the plaintiffs’ petition based

and orally), for the defendants.

orally), for the plaintiffs.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as beneficiaries of those trusts, with legally protectible [sic p. 2 which they complained in 2003 and 2004. They had standing as The plaintiff[s] knew of the actions and inactions by the trustee and of

ruled: actions, RSA 508:4, barred the plaintiffs’ action. Specifically, the probate court It further found that the general statute of limitations for personal

Attorney Ransmeier resigned as Interim Trustee. of limitations in RSA 564-B:10-1005 began to run on July 1, 2003, when RSA 564-B:10-1005 and RSA 508:4. The probate court found that the statute dismissed the petition on the basis of the statutes of limitation contained in and otherwise protect trust assets. In November 2008, the probate court negligence, including but not limited to failure to pursue a constructive trust against the defendants alleging numerous breaches of fiduciary duty and approved on July 1, 2003. On February 25, 2008, the plaintiffs filed a petition Ransmeier requested to resign as Interim Trustee, which the probate court court about Attorney Ransmeier’s service as trustee. At some point, Attorney In 2003 and 2004, Lillian raised several complaints with the probate

from any relief ultimately afforded to them by the remedy imposed when trustee. That standing and those complaints existed quite separately interests already at stake, to pursue those complaints against their

for the benefit of the plaintiffs. upon the assets of Robert Billewicz, his trusts and the Warren Billewicz estate, will and trust documents were fraudulent and imposed a constructive trust various beneficiaries.” On August 11, 2005, the probate court ruled that the standard of conduct in fulfilling the trustee’s fiduciary obligations to the Attorney Ransmeier’s lack of participation did “not constitute a breach of any petition. The probate court further outlined the parties’ agreement that actively participate in the hearings on the merits and motions” relating to the probate court ruled that Attorney Ransmeier, as the Interim Trustee, “need not and trust documents. In the trial structuring order, dated March 22, 2002, the to reopen Warren Billewicz’s estate, alleging Robert Billewicz had forged the will In August 2001, the plaintiffs, with independent counsel, filed a petition

Ransmeier & Spellman, P.C. to serve as Interim Trustee of the five trusts. In January 1999, the probate court appointed Attorney John C. Ransmeier of produced by her brother, and in 1998 sought to have him removed as trustee. five of the trusts. Lillian was suspicious of the will and trust documents trustee over several estate trusts, with Lillian and her sons as beneficiaries of Attorney Robert W. Billewicz, Warren’s son and Lillian’s brother, was appointed Michael Billewicz, died on November 6, 1989, leaving a substantial fortune. Lillian Billewicz (Lillian) and grandfather to Lillian’s sons, Johnathan and The following facts are not in dispute. Warren J. Billewicz, father to not diminish the beneficiaries [sic p. 3 third persons that led to the constructive trusts being established, did determination of how much they were damaged by the actions of the the action to obtain the imposition of constructive trusts or some

defendant served as trustee. Whether they were ultimately successful in plaintiffs were already beneficiaries of the five trusts for which the additional constructive trusts . . . granted in the underlying action. The contingent on the plaintiffs obtaining status as beneficiaries of the The actions presently being complained of were not conditional or

The probate court denied the plaintiffs’ motion, ruling:

property in dispute” until the probate court ordered the establishment of the than RSA 508:4. They also argue that they did not have “legal rights to the argue that the probate court erred by applying RSA 564-B:10-1005(c)(1) rather the five trusts from his duties under the later constructive trust. They further to dismiss by failing to distinguish Attorney Ransmeier’s duties as trustee of The plaintiffs argue that the probate court erred in granting the motion

B:11-1104(a)(3) (2007). court should apply “the superseded law,” in this case, RSA 508:4. RSA 564- 3 conduct of the judicial proceedings or prejudice the rights of the parties,” the providing that if its application will “substantially interfere with the effective B:11-1104 created an exception to the application of RSA 564-B:10-1005, by justiciable controversy prior to that date. They further argued that RSA 564on August 11, 2005. They contended that they did not have standing or a ripe should have been tolled until the probate court granted the constructive trust The plaintiffs moved to reconsider, arguing that the statutes of limitation

for reconsideration. This appeal followed. RSA 564-B:11-1104 did not provide a basis for granting the plaintiffs’ motion under “these factual circumstances.” Finally, the probate court found that support of their tolling argument and refused to toll the statutes of limitation The probate court found that the plaintiffs cited no controlling authority in

actions or inactions. have had a justiciable controversy against their then trustee for his

pleadings filed with the probate court in 2003 and 2004. clear, by inference if nothing else, that they would seek recovery of damages” in complaints about [Attorney Ransmeier’s] service as trustee . . . and made it The probate court further found that the plaintiffs raised “several

in the underlying equity actions in 2005. the constructive trust relief they were requesting was ultimately ordered protect.” Libertarian Party of N.H. v. Sec’y of State p. 4 party [has] suffered a legal injury against which the law was designed to The general rule for standing is that a party may bring suit when “the

the plaintiffs had standing to sue the defendants during the statutory period. Because the facts are not in dispute, our review is de under the later constructive trust, and as beneficiaries under the five trusts, The probate court granted the motion pursuant to both statutes. 4 to sue as beneficiaries of the five trusts existed separately from their rights action prior to that date. The defendants counter that the plaintiffs’ standing establishment of a constructive trust, because they did not have a cause of determine, based on the facts, whether the plaintiffs have sufficiently defendants until August 11, 2005, when the probate court ordered the probate court must “look beyond the plaintiffs’ unsubstantiated allegations and (quotation omitted). In determining standing in a motion to dismiss, the The plaintiffs argue that they did not have standing to sue the

I. Standing

within the three-year period, the action should ordinarily be dismissed. See Thus, once the defendant establishes that the cause of action was not brought 564-B:10-1005(c)(1). RSA 564-B:10-1005 contains no discovery rule exception. within 3 years after the . . . removal, resignation, or death of the trustee.” RSA by a beneficiary against a trustee for breach of trust must be commenced RSA 564-B:10-1005(c) provides, in pertinent part: “[A] judicial proceeding a construction that would permit recovery. McNamara v. Hersh Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009). whether the allegations in the plaintiffs’ pleadings are reasonably susceptible of novo. State of N.H. v. In reviewing the granting of a motion to dismiss, we normally determine

RSA 564-B:10-1005(c).

See RSA 508:4, I. 508:4 provides a discovery rule exception, the plaintiffs have not raised it here. act or omission complained of.’” Id. (quoting RSA 508:4, I). Although RSA burden “by a showing that the action was not ‘brought . . . within 3 years of the case.” Glines v. Bruk, 140 N.H. 180, 181 (1995). The defendant meets that bears the burden of proving that [the statute of limitations] applies in a given only within 3 years of the act or omission complained of . . . .” “[T]he defendant (2005). RSA 508:4, I, provides that “all personal actions . . . may be brought limitation, an affirmative defense. See Perez v. Pike Inds., 153 N.H. 158, 160 73 (2008). Here, however, the defendants’ motion relied upon the statutes of

limitation should have been tolled until August 11, 2005. constructive trust on August 11, 2005. Finally, they argue that the statutes of p. 5 1A C.J.S. Actions

adjudication. parties that is sufficiently immediate and real so as to warrant

required that there be an actual case or controversy between the

cases involving uncertain or contingent future matters, and it is

Under ripeness principles, the courts generally do not consider

beneficiaries, the plaintiffs had legally protected interests at stake. See Attorney Ransmeier during his service as Interim Trustee for the five trusts. As finding that the plaintiffs had knowledge of the “actions or inactions” of August 11, 2005, the probate court essentially decided the ripeness issue by In determining that the plaintiffs had standing to bring suit prior to

11, 2005, the day the court ordered the constructive trust. The plaintiffs argue that their cause of action was not ripe until August

564-B:10-1002. As the probate court found, those interests existed separately

II. Justiciable Controversy declines to consider issue). fitness of issue for judicial determination and hardship to the parties if court Fischer), 152 N.H. 205, 210 (2005) (in determining ripeness, court evaluates limitations period. § 75, at 287 (2005); cf. Petition of State of N.H. (State v. (2) there was no legal impediment to the plaintiffs bringing suit within the facts underlying their claims before the statute of limitations had elapsed; and constructive trust. The defendants counter that: (1) the plaintiffs knew the August 11, 2005, when the probate court ordered the establishment of a The plaintiffs also contend that no “justiciable controversy” existed until

of the five trusts. See 2003 to 2004. Further, they had standing to bring the action as beneficiaries Trustee. Indeed, they filed objections and complaints about his service from knowledge of their allegations during Attorney Ransmeier’s service as Interim establishment of the constructive trust on August 11, 2005. The plaintiffs had bring the action against the defendants before the probate court ordered the We find no merit to the plaintiffs’ argument that they had no standing to

on July 1, 2003. against the defendants when Attorney Ransmeier resigned as Interim Trustee correctly concluded that the plaintiffs had standing to bring a cause of action

plaintiffs’ standing de novo. Id. are not in dispute; thus, we review the probate court’s determination of the Planning Bd., 157 N.H. 94, 96 (2008) (quotation omitted). The underlying facts demonstrated their right to claim relief.” Johnson v. Town of Wolfeboro p. 6 B. Application of RSA 564-B:11-1104

regarding the application of RSA 508:4. In light of this holding, we need not address the parties’ arguments

limitations applicable to actions against a trustee, RSA 564-B:10-1005. with the effective conduct of the judicial proceedings or prejudice the rights of plaintiffs’ five trusts. Thus, the trial court properly applied the statute of of the Uniform Trust Code does not apply if it “would substantially interfere negligence arising out of Attorney Ransmeier’s capacity as trustee of the 564-B:10-1005 because RSA 564-B:11-1104(a)(3) provides that any provision The plaintiffs are suing the defendants for breach of fiduciary duty and The plaintiffs further argue that their action is not barred under RSA

The interpretation of a statute is a question of law, which we review de

statute of limitations on personal actions. See The legislature enacted RSA 508:4, last amended in 1986, to create a

A. Choice of Statute

78. would apply exclusively to actions against trustees. See Dalton, 153 N.H. at the legislature clearly intended to create a discrete statute of limitations that RSA 564-B:10-1005(c). A plain reading of RSA 564-B:10-1005(c) indicates that III. Statute of Limitations of limitations for actions against trustees under the Uniform Trust Code. See 2004, the legislature enacted RSA 564-B:10-1005(c) to create a specific statute

RSA 508:4 to dismiss the plaintiffs’ petition. limitations for an action against the trustee of a trust, and alternatively applied court applied RSA 564-B:10-1005(c), which specifically establishes a statute of words that it did not see fit to include.” Id action it is RSA 508:4,” which applies to general personal actions. The probate. (2005). “We will neither consider what the legislature might have said nor add The plaintiffs argue that “if any statute of limitations applies to their not subject to modification.” Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 whole. Id. “When the language of a statute is clear on its face, its meaning is of the legislature as expressed in the words of the statute considered as a novo. Kenison v. Dubois, 152 N.H. 448, 451 (2005). We determine the intent

as to warrant adjudication. or controversy between the parties that was sufficiently immediate and real so from the 2005 constructive trust. We conclude that there was an actual case parties’ substantive or procedural rights.” In the Matter of Donovan & p. 7 retrospectively, our interpretation turns on whether the statute affects the When a statute is silent about whether it “should apply prospectively or

C. Prospective v. Retrospective Application

effective date, the plaintiffs’ action is barred under RSA 564-B:10-1005. See id. plaintiffs’ petition against the defendants was brought after the statute’s commenced on or after its effective date.” RSA 564-B:11-1104(a)(2). Since the prospectively, because the statute affects substantive rights. Uniform Trust Code “applies to all judicial proceedings concerning trusts The plaintiffs also contend that RSA 564-B:10-1005 should only apply statute is not silent. See RSA 564-B:11-1104. It clearly states that the procedural rights. Eldridge v. Eldridge, 136 N.H. 611, 613 (1993). Here, the presumption is reversed when the statute is remedial in nature or affects only construed prospectively when it affects substantive rights. Id. However, this Donovan, 152 N.H. 55, 63 (2005). There is a presumption that a statute will be

The effective date of the Uniform Trust Code was October 1, 2004. See

applies to all judicial proceedings concerning trusts commenced before

Id 564-B:11-1104(a)(2). after the effective date of the statute, RSA 564-B:10-1005 applies. See RSA defendants on February 25, 2008. Since the plaintiffs’ action was brought RSA 564-B:1-101 (2007). The plaintiffs filed their petition against the

1104(a)(2) (2007) (emphasis added). This is the applicable provision. proceedings concerning trusts commenced on or after its effective date.” Id. at 564-B:11-1104(a)(2) states that the Uniform Trust Code “applies to all judicial proceedings at the time the Uniform Trust Code took effect. Id RSA 564-B:11-1104(a)(3). However, RSA “prejudice the rights of the parties” who had already commenced judicial . (emphasis added). Understandably, the legislature did not want to

the superseded law applies. in which case the particular provision of this chapter does not apply and conduct of the judicial proceedings or prejudice the rights of the parties, provision of this chapter would substantially interfere with the effective its effective date unless the court finds that application of a particular

application of RSA 564-B:10-1005 does not prejudice the plaintiffs’ rights. argue that RSA 564-B:11-1104(a)(3) does not apply, and that even if it did, case was dismissed, and the exception should apply here. The defendants reasonably disputed” that their rights were substantially prejudiced when their the parties.” RSA 564-B:11-1104(a)(3). The plaintiffs argue that “it cannot be p. 8 Affirmed

concurred. IV. Conclusion BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

merit and warrant no further discussion. Vogel v. Vogel We have reviewed the plaintiffs’ remaining arguments and hold that they lack parties’ substantive arguments about the defendants’ duties to the plaintiffs. under RSA 564-B:10-1005. In light of this holding, we need not address the We hold that the probate court correctly barred the plaintiffs’ claim

RSA 564-B:10-1005 does not provide any tolling mechanism. See

(1993).

support tolling the statute. therefore, the probate court properly refused to toll the statute of limitations. all the proceedings. We find nothing in the facts of this case that would his firm and asserted entirely different claims than are alleged in this case; were not parties to the action against Robert Billewicz and were excused from plaintiffs’ action against Robert Billewicz did not involve Attorney Ransmeier or bring their petition against the defendants. The defendants argue that the constructive trust. Further, with agreement of the plaintiffs, the defendants beneficiaries under the constructive trust, which in turn gave them standing to bring their petition against the defendants prior to the establishment of the the constructive trust. They argue that that proceeding ultimately made them against Robert Billewicz. As we concluded above, the plaintiffs had standing to tolled pending the resolution of their petition against Robert Billewicz seeking have been tolled pending the resolution of the constructive trust petition find no merit to the plaintiffs’ argument that the statute of limitations should The plaintiffs argue that the statute of limitations should have been 564-B:10-1005. Even assuming, however, that the statute may be tolled, we

D. Tolling