Forbes v. Forbes, s. S–14–0122

• Court: United States State Supreme Court of Wyoming
• Citation: 2015 WY 13,341 P.3d 1041
• Docket Number: S–14–0123.,Nos. S–14–0122,s. S–14–0122
• Parties: William C. FORBES and Julia Forbes, Trustees of the Beckton Ranch Trust U/A/D April 1, 1920, Appellants (Defendants), v. Waldo E. FORBES, Appellee (Plaintiff). Waldo E. Forbes, Appellant (Plaintiff), v. William C. Forbes, Julia Forbes, Edith L. Forbes, and Sarah Forbes, Trustees of the Beckton Ranch Trust U/A/D April 1, 1920, Appellees (Defendants).
• Decision Date: 23 January 2015

341 P.3d 1041
2015 WY 13

William C. FORBES and Julia Forbes, Trustees of the Beckton Ranch Trust U/A/D April 1, 1920, Appellants (Defendants)
v.
Waldo E. FORBES, Appellee (Plaintiff).

Waldo E. Forbes, Appellant (Plaintiff)
v.
William C. Forbes, Julia Forbes, Edith L. Forbes, and Sarah Forbes, Trustees of the Beckton Ranch Trust U/A/D April 1, 1920, Appellees (Defendants).

Nos. S–14–0122
S–14–0123.

Supreme Court of Wyoming.

Jan. 23, 2015.

341 P.3d 1047

Representing William C. Forbes and Julia Forbes in Case No. S–14–0122: Patrick J. Murphy and Keith J. Dodson, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Murphy.

Representing William C. Forbes, Julia Forbes, Edith L. Forbes, and Sarah Forbes in Case No. S–14–0123: Patrick J. Murphy and Keith J. Dodson, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Murphy.

Representing Waldo E. Forbes: Debra J. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

FOX, Justice.

¶ 1] The Beckton Ranch Trust (BRT) was formed in 1920 by six members of the Forbes family to hold certain parcels of land and their appurtenant water and ditch rights in Sheridan County, Wyoming, for the benefit of their descendants. The number of beneficiaries grew over time to 19, but the Forbes family managed the Trust's interests without significant strife. That changed in 2007, when Waldo E. Forbes (Spike) resigned as trustee following a dispute with his siblings. Later that year, the remaining trustees—Spike's brother, William Forbes (Cam) and his sisters, Julia Forbes, Sarah Forbes, and Edith Forbes—began a series of land and water transactions that form the basis for the breach of the duty of loyalty alleged in the complaint Spike filed against them.

[¶ 2] After a bench trial, the district court found that two of the four trustees, Cam and Julia, had breached their duty of loyalty and should be removed. The district court made no finding regarding Sarah and Edith, and did not remove them as trustees. Both sides appeal. We reverse the district court's order removing Cam and Julia, and affirm the decision not to remove Sarah and Edith.

ISSUES

[¶ 3] Cam Forbes and Julia Forbes, Trustees of the BRT, raise the following issues on appeal:

1. Was the district court's decision to remove Cam and Julia as trustees because of the exchange of water rights reversible error because it was based on an unpled claim and because it made clearly erroneous findings regarding the exchange of water rights?

2. Was the district court's finding that Julia profited from the transactions that were undertaken to place a conservation easement on the BRT property clearly erroneous?

3. Did the district court err when it found that Cam and Julia improperly issued new shares in the BRT?

4. Did the district court commit reversible error when it allowed undesignated expert testimony, concluded property deeded to Cam was not suitable for development in spite of Spike's expert's testimony otherwise, and based its finding on difference in value by comparing a 2007 value of one property to a 2013 value of another?

5. Did the district court commit reversible error when it failed to address the BRT Trustees' affirmative defenses?

[¶ 4] Spike raises only one issue in his cross appeal:

1. Did the district court err as a matter of law when it failed to remove Edith and Sarah as trustees of the BRT?

FACTS

[¶ 5] The BRT is a Massachusetts Business Trust created by members of the Forbes family in 1920 to manage and hold real property in Sheridan County, Wyoming, for the benefit of the Forbes family and their descendants. The BRT holds approximately 6,000 acres of land worth roughly $20,000,000. Spike was a trustee of the BRT for approximately 44 years, from 1963 until 2007. Cam became a trustee in 1983, Edith in 1986, and Julia and Sarah in 2007. There are 19 beneficiaries of the BRT, including Spike, Cam, Edith, and Julia.¹ Spike is the

[341 P.3d 1048

only beneficiary to challenge the trustees' exercise of their duties. The BRT will terminate 20 years after the death of Amelia Forbes, who was born in 1915, and was alive at the time of the hearing.²

¶ 6] Other Forbes family entities that enter the picture are the Hillside Street Trust (HST), which owns land in the same area as the BRT; the Sarah P. Forbes Revocable Trust (SPFRT), which held the family home sometimes referred to as the “Cave Creek property;” Beckton Stock Farms, Inc., which operates a cattle business on BRT and HST land; and Beckton Livestock, LLC, which owns the livestock that is operated by Beckton Stock Farms. Each of these entities has overlapping, but not identical, beneficiaries, trustees, officers, and members.

[¶ 7] The stage for the current dispute was set with the aging and estate tax concerns of the generation now managing the BRT; the death of their mother, Sal Forbes; the retirement of Spike as ranch manager and BRT trustee; and the looming termination of the Trust. Spike, who had become disgruntled after a difference of opinion with his siblings over remodeling and construction expenses for the Cave Creek house he lived in with Sal, and who had concluded that “my own estate planning imperatives required some ownership separation,” made it clear that he would be taking any steps necessary to separate his interests from the Trust. In a May 6, 2011, email to Edith, he said: “That can happen in a way which is mutually beneficial to many shared common interests, or it can happen with a fight every step of the way.” He went on to say: “The choice on ‘how’ it happens is in your camp: cooperatively or with fight after fight.” On July 11, 2011, Spike filed the complaint that began this lawsuit.

A. The 2007 “Cam transaction”

[¶ 8] While Spike was still a BRT trustee, in January 2007, he proposed that:

It is appropriate that Cam own the land upon which his house sits, currently owned by the Beckton Trust. I propose that such land be sold to him by the Beckton Trust at the current fair market value established by the County which is approximately $25,000 for the home-site plus a small amount for the adjacent agricultural land.

[¶ 9] In August 2007, after Spike had resigned as trustee, the BRT exchanged the property on which Cam had built his house for a 31 percent interest in 80 acres of property Cam owned near Sheridan, the “Jeffries 80.” A 2007 appraisal of the property Cam acquired from the BRT valued it at $320,000. A 2007 appraisal of a 35–acre “hypothetical piece of property”³ owned by Cam valued it at $454,000. The Jeffries 80 that was ultimately exchanged to the BRT was near, but “not exactly contiguous” to the land appraised in the 2007 appraisal. A 2013 appraisal, obtained by Spike for this litigation, valued the Jeffries 80 at $205,000 (31 percent of that value is $63,550).

[¶ 10] Trustee Sarah Forbes explained that the trustees concluded this land exchange was in the BRT's interest because the Jeffries 80 seemed to be “premiere land” for development, and because it would be beneficial for the trust to have land that could be sold without impacting the ranch operations. They also believed that the 31% interest would be beneficial because they could “ride on Cam's coattails” when he developed the property. Spike's expert James Urbatchka, who performed both Jeffries 80 appraisals, testified that “I think there was enough relatively flat land that you could put four houses there.”

[¶ 11] Cam recused himself from the August 27, 2007 Resolution of the BRT trustees that adopted the Jeffries 80 exchange. However, he was fully involved in the discussions and planning leading up to that point, retaining Mr. Urbatchka to do the appraisals for both properties, and making several trips over the Jeffries 80 with other BRT trustees and beneficiaries.

[341 P.3d 1049

B. The Cave Creek Transaction

¶ 12] In 2010, when the matriarch Sal Forbes was ill, the trustees determined that the BRT should acquire her house and property, known as “Cave Creek,” in an attempt to keep that property in the family after her death. To accomplish this, the BRT acquired the house and 72 acres, valued at $1,233,000, in exchange for 70 newly-issued shares in the BRT. Neither the Cave Creek transaction nor the issuance of 70 new BRT shares for that transaction were relied upon by the district court in its Findings of Fact, Conclusions of Law and Judgement [sic].

C. The Conservation Easement Exchange

[¶ 13] Spike testified that “[w]e started talking about a conservation easement and encouraging it in 2005 while I was a trustee.” Many BRT beneficiaries had indicated a desire to preserve BRT land with such an easement. In 2010, the BRT trustees reached an agreement with the Nature Conservancy to place a conservation easement on 1,020 acres of BRT land, in exchange for $1,353,200 (net after taxes and costs) and a small piece of property called the “Polo Field.” Spike was in favor of this transaction; however, he objected to a series of transactions between trustee Julia Forbes and the BRT which led up to the conservation easement transaction.

[¶ 14] Late in the negotiations on the conservation easement, which were to be resolved by the end of 2010 due to funding restrictions, the trustees learned that the Natural Resources Conservation Service (NRCS) would require all 19 BRT...