IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF: THE CHRISTIAN No. 75750 FAMILY TRUST U.A.D. 10/11/16
SUSAN CHRISTIAN-PAYNE; FILED ROSEMARY KEACH; AND RAYMOND CHRISTIAN, JR., SEP 2020 Appellants, CLER 1s REME COURT VS. EY EPUTY CLERK ANTHONY L. BARNEY, LTD; AND FREDRICK P. WAID, Respondents.
ORDEI? OF AFFIRMANCE
This is an appeal from a district court order allowing the partial payment of a creditor's claim .in a trust action. Eighth judicial :District Court, Clark County; Vincent Ochoa, Judge.' Settlors Nancy and Raymond Christian, Sr. created The Christian Family Trust2 (the Trust), naming appellants, three of their children, as co-trustees. After Raymond died.. Nancy replaced appellants as
'Pursuant to NR.AP 34(f)(1), we have determined that oral argument is not warranted.
2The Trust refers to Nancy and Rayniond as "trustors," whereas Nevada law refers to trustors as "settlors." See, e.g., NRS 1.63.003 (describing the requirements for a settlor to create a trust.). While the terms may be interchangeable, we will only use the term "settlors” in this order. See Settlor, Black's Lau; .Dictionary (11 th ed. 2019) (defining "settloe as one who sets up a trust and providing that a settlor niay also be called a "trustor").
SUPREME COURT OF NEVADA
(0) I947A .44104 2J0 - (104 _ KwzA. trustees and appointed her son from a different marriage, non-party Monte Reason, as trustee.3 Appellants challenged the replacement in district court and Nancy retained respondent law firm Anthony L. Barney, Ltd. (Barney, Ltd.) to represent her. After Nancy's death, Trustee Reason and, after he
resigned, successor Trustee Jacqueline Utkin, both approved Barney, Ltd.'s request for payment of its attorney fees and costs for representing Nancy, and, over appellants objection, the district court ordered $53,031.97 of
frozen trust funds be released to pay .Barney,lAd. This appeal followed. Barney, Ltd. first argues that appellants lack standing to pursue this appeal because they are no longer trustees of the Trust. We disagree. Appellants have standing to appeal because the appealed order reduces the Trust assets available for disbursement to them as beneficiaries. See in re Estate of Herrmann., 100 Nev. 1., 26, 677 P.2d 594. 610 (1984) (explaining that heirs of an estate are interested parties with a right to contest an award of attorney fees where th.e award reduces their legacies). Reviewing de novo, Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 25.2 P.3d 206, 208 (2011), we also reject appellants' claim that Barney, Ltd. lacked standing to petition the district court for payrnent. NRS 1.32.390 gave Barney, Ltd. standing to bring its claim because it was Nancy's creditor and because both Trustee Reason and Trustee Utkin accepted its claim.4 See NRS 132.390(1)(c)(8) (explaining that "a creditor of the settlor
3Respondent Frederick P. Waid is the current Trustee.
4To the extent appellants argue that the Trustees breached their fiduciary duty to protect Trust assets by approving Barney, Ltd.'s request for fees, we decline to reach this argument because it was raised for the first time on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (198.1) (noting that "[a] point not urged in the trial court . . wi.11 not be considered on appeal").
••••it. t who has a claim which has been accepte(1 by the trustee" is an interested. person as to the trust). Barney, Ltd. also urges that this appeal is rnoot because the district court unfroze trust assets such that the current Trustee is now free to approve Barney, Ltd.'s request for payment. See NRS 155_123 (explaining that the district court may order "an injunction to preserve and protect [trust] assets"). Although Barney, Ltd. is correct that the district court unfroze Trust assets, it does not explain how this renders the instant appeal moot. See Edwards v. Emperors Garden Rest., 1.22 Nev, 31.7, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that appellants must "cogently
argue, and present relevant authority" to support their claims). And we do not agree that the district court's action rendered this appeal moot as it has no impact on the propriety of using the Trust assets to pay for alleged non-
Trust expenses. The parties do not dispute that Barney. Ltd. was Na.ncy- s personal creditor, not a creditor of the Trust, but they disagree as to whether the Trust allows for payment of Barney, Ltd.'s fees. As this dispute involves trust interpretation and there are no disputed facts, our review is de novo. In re W.N. Connell & Marjorie T. Connell Living Tr., 134 Nev. 613, 616, 426 P.3d 599, 602 (2018). After reviewing the parties arguments, we disagree with appellants that the Trust does not authorize the payment of Barney. Ltd.'s claim from Trust assets. Barney, Ltd., as a creditor, brought a claim against the settlor of a trust. A creditor may bring a claim against a settlor from the assets of a trust se long as the settlor's interest in the trust is not purely discretionary. NRS 163.5559(4 Nancy did not solely have a discretionary interest in the Trust. In addition to being the surviving settlor after
3 Raymond's death, Nancy was also a beneficiary of the Trust with both a discretionary interest in receiving support from trust assets and a mandatory interest as to her possession of the Bluff Point property and certain personal property of Rayrnond. Further, the spendthrift provision in the Trust explicitly does not apply to a settlor's interest in the Trust estate. See generally Matter of Frei Irrevocable Trust Dated October 29, 19.96, 133 Nev. 50, 55, 390 P.3d 646, 651. (2017) (stating that a valid spendthrift provision prevents a beneficiary's creditors from reaching the trust property (citing NRS 166.120(1))). Barney, Ltd.'s claim against the trust was therefore proper. We reject appellants argument that Barney, Ltd. had to file a creditor's claim against the settlor while she was ahve. The provisions of NRS 164.025 specifically provide for claims against a settlor to be filed after the death of a settlor. See NRS 164.025(3),5 (requiring a creditor to file a claim against a settlor within 90 days from notice that the settlor has died). We also reject appellants' argurnent that Barney, Ltd. did not follow the applicable procedure to file a creditor's claim. 'Barney, Ltd. provided written notice of its claim against the Trust to both Trustee Reason and Trustee Utkin within 90 days of receiving notice of Nancy's death, thereby complying with NRS 164.025(3).6
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IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF: THE CHRISTIAN No. 75750 FAMILY TRUST U.A.D. 10/11/16
SUSAN CHRISTIAN-PAYNE; FILED ROSEMARY KEACH; AND RAYMOND CHRISTIAN, JR., SEP 2020 Appellants, CLER 1s REME COURT VS. EY EPUTY CLERK ANTHONY L. BARNEY, LTD; AND FREDRICK P. WAID, Respondents.
ORDEI? OF AFFIRMANCE
This is an appeal from a district court order allowing the partial payment of a creditor's claim .in a trust action. Eighth judicial :District Court, Clark County; Vincent Ochoa, Judge.' Settlors Nancy and Raymond Christian, Sr. created The Christian Family Trust2 (the Trust), naming appellants, three of their children, as co-trustees. After Raymond died.. Nancy replaced appellants as
'Pursuant to NR.AP 34(f)(1), we have determined that oral argument is not warranted.
2The Trust refers to Nancy and Rayniond as "trustors," whereas Nevada law refers to trustors as "settlors." See, e.g., NRS 1.63.003 (describing the requirements for a settlor to create a trust.). While the terms may be interchangeable, we will only use the term "settlors” in this order. See Settlor, Black's Lau; .Dictionary (11 th ed. 2019) (defining "settloe as one who sets up a trust and providing that a settlor niay also be called a "trustor").
SUPREME COURT OF NEVADA
(0) I947A .44104 2J0 - (104 _ KwzA. trustees and appointed her son from a different marriage, non-party Monte Reason, as trustee.3 Appellants challenged the replacement in district court and Nancy retained respondent law firm Anthony L. Barney, Ltd. (Barney, Ltd.) to represent her. After Nancy's death, Trustee Reason and, after he
resigned, successor Trustee Jacqueline Utkin, both approved Barney, Ltd.'s request for payment of its attorney fees and costs for representing Nancy, and, over appellants objection, the district court ordered $53,031.97 of
frozen trust funds be released to pay .Barney,lAd. This appeal followed. Barney, Ltd. first argues that appellants lack standing to pursue this appeal because they are no longer trustees of the Trust. We disagree. Appellants have standing to appeal because the appealed order reduces the Trust assets available for disbursement to them as beneficiaries. See in re Estate of Herrmann., 100 Nev. 1., 26, 677 P.2d 594. 610 (1984) (explaining that heirs of an estate are interested parties with a right to contest an award of attorney fees where th.e award reduces their legacies). Reviewing de novo, Arguello v. Sunset Station, Inc., 127 Nev. 365, 368, 25.2 P.3d 206, 208 (2011), we also reject appellants' claim that Barney, Ltd. lacked standing to petition the district court for payrnent. NRS 1.32.390 gave Barney, Ltd. standing to bring its claim because it was Nancy's creditor and because both Trustee Reason and Trustee Utkin accepted its claim.4 See NRS 132.390(1)(c)(8) (explaining that "a creditor of the settlor
3Respondent Frederick P. Waid is the current Trustee.
4To the extent appellants argue that the Trustees breached their fiduciary duty to protect Trust assets by approving Barney, Ltd.'s request for fees, we decline to reach this argument because it was raised for the first time on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (198.1) (noting that "[a] point not urged in the trial court . . wi.11 not be considered on appeal").
••••it. t who has a claim which has been accepte(1 by the trustee" is an interested. person as to the trust). Barney, Ltd. also urges that this appeal is rnoot because the district court unfroze trust assets such that the current Trustee is now free to approve Barney, Ltd.'s request for payment. See NRS 155_123 (explaining that the district court may order "an injunction to preserve and protect [trust] assets"). Although Barney, Ltd. is correct that the district court unfroze Trust assets, it does not explain how this renders the instant appeal moot. See Edwards v. Emperors Garden Rest., 1.22 Nev, 31.7, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that appellants must "cogently
argue, and present relevant authority" to support their claims). And we do not agree that the district court's action rendered this appeal moot as it has no impact on the propriety of using the Trust assets to pay for alleged non-
Trust expenses. The parties do not dispute that Barney. Ltd. was Na.ncy- s personal creditor, not a creditor of the Trust, but they disagree as to whether the Trust allows for payment of Barney, Ltd.'s fees. As this dispute involves trust interpretation and there are no disputed facts, our review is de novo. In re W.N. Connell & Marjorie T. Connell Living Tr., 134 Nev. 613, 616, 426 P.3d 599, 602 (2018). After reviewing the parties arguments, we disagree with appellants that the Trust does not authorize the payment of Barney. Ltd.'s claim from Trust assets. Barney, Ltd., as a creditor, brought a claim against the settlor of a trust. A creditor may bring a claim against a settlor from the assets of a trust se long as the settlor's interest in the trust is not purely discretionary. NRS 163.5559(4 Nancy did not solely have a discretionary interest in the Trust. In addition to being the surviving settlor after
3 Raymond's death, Nancy was also a beneficiary of the Trust with both a discretionary interest in receiving support from trust assets and a mandatory interest as to her possession of the Bluff Point property and certain personal property of Rayrnond. Further, the spendthrift provision in the Trust explicitly does not apply to a settlor's interest in the Trust estate. See generally Matter of Frei Irrevocable Trust Dated October 29, 19.96, 133 Nev. 50, 55, 390 P.3d 646, 651. (2017) (stating that a valid spendthrift provision prevents a beneficiary's creditors from reaching the trust property (citing NRS 166.120(1))). Barney, Ltd.'s claim against the trust was therefore proper. We reject appellants argument that Barney, Ltd. had to file a creditor's claim against the settlor while she was ahve. The provisions of NRS 164.025 specifically provide for claims against a settlor to be filed after the death of a settlor. See NRS 164.025(3),5 (requiring a creditor to file a claim against a settlor within 90 days from notice that the settlor has died). We also reject appellants' argurnent that Barney, Ltd. did not follow the applicable procedure to file a creditor's claim. 'Barney, Ltd. provided written notice of its claim against the Trust to both Trustee Reason and Trustee Utkin within 90 days of receiving notice of Nancy's death, thereby complying with NRS 164.025(3).6
5This statute was amended as of October 1., 2019. See 201.9 Nev. Stat., ch. 309, § 35, at 1870-7.1. Any reference to NRS 164.025 in this order refers to the previous version.
6The record is unclear as to whether a trustee provided formal notice of Nancy's death to ascertainable creditors as set forth in NRS 164.025(1.)-
SUPREME COURT OF NEVADA
(0) 1947A 0411411,
rallaktriatiewitaillfas — Although the Trust provides for discretionary payment of the debts of the first settlor to die (Raymond), and is otherwise silent as to the payment of the successor settlor's (Nancy) debts, Trustee Reason and Trustee Utkin had broad authority under the Trust to exercise their discretion in making such a payment.7 They used this discretionary power to approve payment of Barney, Ltd.'s claim. NRS 163.115(1)(0,8 generally allows for maintenance of a suit by a beneficiary "Rio trace trust property that has been wrongfully disposed of and recover the property or its proceeds." Here, however, the Trust language contradicts NRS 163.115(1)(i). Article 12 of the Trust is titled "Exoneration of Persons Dealing with the Trustees" and states as follows: No person dealing with the Trustees shall be obliged to see to the application of any property paid or delivered to them or to inquire into the expediency or propriety of any transaction or the
(2). However, Barney, Ltd. sent letters to both Trustee Reason and Trustee Utkin within 90 days of Nancy's death.
7 See Christian Family Trust Dated October 1.1, 2016, Article 10, § 10.1(t) (The enumeration of certain powers al the Trustees shall not limit their general powers, subject always to the discha.rge of their fiduciary obligations, and being vested with and having all the rights, powers and privileges which an absolute owner of the same property would have."), Article 11, § 11.1 (Every election, determination, or other exercise by Trustees of any discretion vested, either expressly or by implication, in them, pursuant to this Trust Agreement, whether made upon a question actually raised or implied in their acts and proceedings, shall be conclusive and binding upon all parties in interest.").
8This statute was amended as of October 1., 2019. See 201.9 Nev. Stat., ch. 309, § 26, at 1863-64. Any reference to NRS 163.115 in this order refers to the previous version.
SUPREME COURT OF NEVADA 5 (0) 1947A .1fej.
Ettaatitiatell authority of the Trustees to enter into and consummate the same upon such terms as they may deem advisable. Because Trustee Reason and Trustee Utkin used their broad discretionary power to approve payment to Barney,I,td. as a creditor of the settlor, and because persons dealing with the trustees are exonerated under Article 12 of the Trust, we conchide that the district court did not err by approving the disbursement of Trust funds to pay Barney, Ltd.'s claim. Based on the foregoing we ORDER the judgment of the district court AVM RM ED."
, J. Parraguirre
J. Hardesty
Cadish
cc: Hon. Vincent Ochoa, District Judge Carolyn Worrell, Settlement judge Cary Colt Payne Anthony L. Barney, Ltd. Hutchison & Steffen, LLC/Las Vegas Eighth District Court Clerk
According1y, we vacate our April 16, 2020, order of reversal and 9 remand.