Burgauer v. Burgauer (In re Paul D. Burgauer Revocable Living Trust), 80466-COA

Docket NºNo. 82067-COA
Citation495 P.3d 531
Case DateSeptember 23, 2021
CourtCourt of Appeals of Nevada

495 P.3d 531 (Table)


Steven Burgauer, a Former Trustee of Paul D. Burgauer Marital Trust, Appellant,
Margaret Burgauer; and Premier Trust, Respondents.

Steven Burgauer, Petitioner,
The Eighth Judicial District Court of the State of Nevada, in and for the County of Clark; and the Honorable Trevor L. Atkin, District Judge, Respondents,
Margaret Burgauer; and Premier Trust, Real Parties in Interest.

No. 80466-COA
No. 82067-COA

Court of Appeals of Nevada.


Howard & Howard Attorneys PLLC

Melissa A. Edwards

The Powell Law Firm


Paul and Margaret Burgauer were married and had two sons, James and Steven Burgauer, all of whom were residents of Illinois.1 In 1987, Paul executed a revocable living trust originally domiciled in and subject to the laws of the state of Illinois. The trust was set up to terminate upon his death, at which time the trust mandated that successor trustee, Steven, would dispose of trust property into two separate trusts: a marital trust and a residuary trust. Under the marital trust, net income accrued from the trust property would be distributed to Margaret Burgauer, during her life, and any such principal as she requested in writing for her support, comfort, and medical needs.2

Three years later, Paul created a separate life insurance trust that would contain the proceeds of his and Margaret's life insurance policies, available for distribution upon their deaths. For the life insurance trust, Paul named Steven and James as co-trustees. At some point, Paul also named Steven as the executor of his will and provided him with a power of attorney.

In 2003, Paul fell ill and died. Two days before his death, Steven, exercising his power of attorney, amended the trust so that Margaret was only entitled to the net income of the marital trust and revoked her power to request distributions from the principal. Following Paul's death, Steven administered the marital trust for over a decade without conflict.

In 2012, Steven relocated to Florida. Shortly thereafter, Margaret also expressed a desire to move to Florida. Using marital trust funds, Steven had a home built for Margaret in Florida, and in 2015 she moved in. James moved to Las Vegas that same year.

Relations subsequently deteriorated between Steven and Margaret. Margaret accused Steven of unlawfully withholding distributions due to her from the marital trust. Steven accused Margaret of spending her trust distributions on gambling, alcohol, and improperly providing financial support to James. Margaret eventually relocated to Las Vegas and pursued legal action in the district court. Margaret petitioned to remove Steven as trustee, appoint a new trustee, compel distributions under the marital trust, and for a temporary restraining order, among other things.3

Steven initially made a limited appearance to petition for dismissal of Margaret's case for lack of personal jurisdiction over him as trustee. The district court denied the petition, relying solely on NRS 164.010 as a basis for exercising personal jurisdiction over Steven. The district court did not conduct a minimum contacts analysis in its order denying Steven's petition to dismiss. At the hearing on the motion, the court concluded

Under NRS 164.010 it appears to this Court's satisfaction that we can assume jurisdiction over this trust as one or more beneficiaries of the trust reside in this state. Further, unless I missed it somewhere, I didn't see where any other state has confirmed Steven as trustee. And so I'm assuming that I have the jurisdiction to confirm him as the trustee and thereby acquire in personam jurisdiction over him- as well. That's the order of the Court today. The Court finds that Nevada, under the statute, specifically NRS 164.010(2)(e), has jurisdiction; that the Court is also going to confirm ... Steven as trustee.

The district court subsequently entered an order denying the petition to dismiss, concluding

under NRS 164.010, it appears to the satisfaction of the Court that Nevada can assume jurisdiction over the Marital Trust as [ ] one or more beneficiaries of the Marital Trust resides in this state. Accordingly, the Court assumes in rem jurisdiction over the Marital Trust and its assets pursuant to NRS 164.010.

The order made an additional conclusion regarding personal jurisdiction over Steven: "Steven Burgauer shall be confirmed as the Trustee of the Marital Trust and the Court thereby acquires in personam jurisdiction over Steven Burgauer."4 The district court additionally issued a temporary restraining order, enjoining Steven from making any transfers or distributions from the marital trust. This restraining order was never revisited during the litigation that ensued and appears to have remained a temporary order.

After substantial motion practice, the district court removed Steven as trustee, without an evidentiary hearing, and appointed Premier Trust as temporary trustee. Premier discovered that the marital trust owned two brokerage accounts—one with Ameriprise and another with Morgan Stanley. Shortly after Margaret filed her petition, Steven made several transfers, aggregating to $337,875, from the Ameriprise account to Burgauer-Albrecht Holdings, Incorporated—a Wyoming corporation created by Steven, where he acts as the sole board member and officer—and withdrew $50,000 cash. Premier also discovered that Steven previously transferred $435,632.15 in total legal fees from the Morgan Stanley account to various law firms over the years, including his Nevada counsel. Finally, Premier discovered that Steven transferred the Florida property to 12375 Holding, LLC—a Wyoming limited liability company controlled by Steven that eventually merged with Burgauer-Albrecht.

Based on these findings, Premier and Margaret jointly moved for a return of the trust assets and money that Steven transferred out of the marital trust to these other entities. The district court granted the motion in part, ordering Steven to convey the Florida property back to the marital trust and to liquidate the property. The Florida property eventually sold for an unknown amount. Premier and Margaret then jointly moved to distribute the proceeds to Margaret. The district court granted the motion and ordered that Steven distribute $117,000 to Margaret, among other smaller distributions to various law firms involved with the litigation and sale of the Florida property. Steven now appeals the district court's order distributing the proceeds from the sale of the Florida property.

Margaret next filed an ex parte application for an order to show cause why Steven should not be held in contempt in the district court, claiming that Steven siphoned marital trust funds and assets in direct violation of the existing temporary restraining order—which at that time had not been revisited for over two years. Margaret also requested attorney fees. Steven opposed, again claiming that the Nevada district court lacked personal jurisdiction over him, as he had throughout the entirety of the underlying litigation.

At this time, the district court concluded it had personal jurisdiction over Steven pursuant to the effects test under Calder v. Jones , 465 U.S. 783 (1984), and Tricarichi v. Coop. Rabobank, U.A., 135 Nev. 87, 440 P.3d 645 (2019), due to his defamatory remarks and other torts directed at Margaret in Nevada, based on the order conferring personal jurisdiction over Steven in the life insurance trust case, and under subsections (2) and (5)(b) of NRS 164.010. The district court imposed a $500 sanction for each of the 83 alleged violations of the restraining order, in addition to awarding attorney fees to Margaret. Steven now petitions for a writ of prohibition and mandamus, challenging the district court's jurisdiction over him, among other things. This court issued an order consolidating the petition and appeal.

In this consolidated original writ petition and direct appeal, we consider whether the district court's exercise of personal jurisdiction over Steven for over three years was proper.5 Steven contends that the district court acted without personal jurisdiction over him because he lacked sufficient minimum contacts with Nevada. Specifically, Steven claims that the district court relied on his alleged tortious conduct against Margaret, none of which was pleaded in the underlying petition to remove him as trustee, which are non-suit-related actions.6 Steven additionally challenges the district court's exercise of in rem jurisdiction over the marital trust because it is an Illinois-based trust.

Margaret and Premier (hereafter collectively referred to as respondents) do not allege that the district court had general personal jurisdiction over Steven and limit their arguments to specific personal jurisdiction. Respondents counter that Steven's conduct was directly aimed at Margaret in Nevada, sufficient to satisfy the tort-based effects test under Colder , 465 U.S. at 789, and Tricarichi , 135 Nev. at 91, 440 P.3d at 650. We disagree.

Standard of Review

We have discretion to consider a writ petition. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). We may issue a writ of prohibition when a district court acts without or in excess of its...

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