Riley v. Rockwell

— 700 — OPINION By the Court, Steffen, J.: This is an appeal from the decision of the district court, finding that respondent Leon Rockwell, Jr. (Leon, Jr.) breached numerous fiduciary duties to appellant Marjorie Riley (Marjorie) in the acquisition of an option to a one-half interest in property located in Las Vegas, Nevada. The court imposed a constructive trust in appellants’ behalf. For the reasons stated below, we affirm in part, reverse in part, and remand to the district court. The property here at issue is subject to long-term leases and occupied by hotels. Thus, at present it serves its owners only as a source of income. Through transactions which have not been called into question in this action, ownership of the property (and, with it, the right to receive the rental income) was divided. Richard Earl Rockwell (Earl) owned a one-half interest; in 1963, he placed it in a revocable inter vivos trust, retaining the power to modify that trust. Another one-quarter interest was placed in a separate trust in 1964, paying the income to Leon, Jr. and Marjorie for their lives, with the corpus then to be distributed to their children. The final one-fourth was also in trust for the benefit of Leon, Jr. and Marjorie; however, in 1972 the trust terminated and each received an undivided one-eighth interest. Each trust had two trustees; Leon, Jr. and one of the respondent banks.1 The seeds of the present dispute were sown soon after the death of Earl’s wife, Ida. Earl was then elderly and did not expect to — 701 — live many more years. Contemplating remarriage, he desired to assure that his one-half interest would remain in the family. After consulting his attorney, Earl concluded that he should grant an option to purchase his interest; he offered that option to Leon, Jr.2 The option agreement was executed December 6, 1966, and recorded two days later; by its terms it could be exercised only within ninety days after Earl’s death, and could not be assigned out of the family of Leon, Jr.3 In 1972, Earl sought to cancel the option but Leon, Jr. refused. Litigation ensued, but was dropped in 1977. Thereafter Earl sent a letter ratifying the option and instructing the trustee bank to honor it. Earl died in 1980, and Leon, Jr. exercised the option. Marjorie and members of her family filed suit in May, 1981, alleging a fraudulent breach of fiduciary duties and seeking imposition of a constructive trust on the optioned property.4 The judgment in question, and this appeal, followed. The fiduciary obligations of a trustee are great. A trustee should do everything in his power to avoid a conflict of interest. Bank of Nevada v. Speirs, 95 Nev. 870, 603 P.2d 1074 (1979). The district court stated that two types of relationships created the fiduciary obligations of Leon, Jr. The first type of relationship identified is the role Leon, Jr. played as express trustee. The second type of relationship assertedly arose from the different business relationships Leon, Jr. and Marjorie had developed. An analysis of Leon, Jr.’s role as trustee shows that he did not breach any duty to Marjorie. Part of Leon, Jr.’s duty as defined by the district court was not to compete with “the trusts in the acquisition of property or other assets related to or closely connected with property” they held, “or which was reasonably related to the area of interest or expectation” of the trusts. This is a correct statement of the law, but the district court erred in applying a form of the corporate opportunity doctrine to its conclusion that the property was “of great, unique and substantial value, and [was] closely and inseparably related to interests already held by” appellants and the trusts. In most cases, it is a — 702 — breach of a trustee’s fiduciary duty for the trustee to become a co-owner with the trust. This is because when the trustee and the trust become co-owners, there is a greater tendency for self-dealing on the part of the trustee. Bogert recognized the potential problems in the type of situation here present: If the fiduciary holds for his beneficiary merely a fractional interest in certain property, is it a breach of his duty to buy for himself another fractional interest in the same res? If, for example, as trustee he holds a one-fourth interest in an apartment house and the remaining three-fourths interest is for sale, may the trustee buy it for himself without running the risk of his interest being taken by the beneficiary on a constructive trust theory? It would seem that his transaction ought to be discouraged, although not so obviously a breach of duty as the purchase of some other competing interests, unless the trust clearly lacks the funds to make the purchase. If the trustee makes himself a co-owner with the trust, he automatically gives room for possible conflict and dispute. 9 G. Bogert, Trusts & Trustees § 543(d) (rev. 2d ed. 1978) (emphasis added). However, the case before us is unique. When Leon, Jr. purchased the option, he was already a designated future co-owner with the trust.5 Therefore, the potential for a conflict of interest was inevitable in any event. Moreover, the property is not susceptible to manipulation by any of its owners since it is involved in long-term leases under hotels in Las Vegas and serves only as a source of income. A greater share in the property creates only a greater share in the income. Therefore, Bogert’s reasons for discouraging this type of transaction do not apply. Thus, this case is analogous to Speirs, where we allowed a trustee to purchase an additional interest in property in which he and the trust already held interests. Since the corpus of the trusts has not been impaired, there is no evidence that Leon, Jr. breached any fiduciary duty arising out of his position as trustee. The district court also found that Leon, Jr. had acted as Marjorie’s fiduciary in the capacity of co-owner, business and property manager, advisor, partner, agent, joint venturer, brother, and confidant with respect to Marjorie’s interests in all of the Rockwell family properties, and as executor of Leon, Sr.’s — 703 — estate. The court went on to state that due to these fiduciary relationships, Leon, Jr. had an obligation to: (1) make a full and fair disclosure of all facts which might materially affect Marjorie’s right and interest and which Marjorie might reasonably need to know to protect and enhance her interests; (2) disclose and offer to appellants the chance to take advantage of any opportunities related to, beneficial to, or in the area of interest of the expectation of appellants; (3) avoid any conflict between his own interests and those of appellants and, in the event of such conflict, place the interests of appellants before his own; and (4) avoid competing with appellants in the acquisition of property or other assets related to or closely connected with property held by appellants, or reasonably related to their area of interest or expectation. The district court then went on to state that Leon, Jr. breached each and all of those fiduciary duties. We disagree. The district court names nine different business relationships that existed between Leon, Jr. and Marjorie that created a fiduciary duty. It is true that each of these relationships would serve as a basis for certain duties between the parties. However, those duties generally relate to properties currently held within the relationship or anticipated by the relationship. The property in question was never involved in the relationships identified by the district court. Moreover, Earl was the sole owner of the property subject to the option and had the right to dispose of it according to his own desires. That property was never within the contemplation of the relationships listed by the district court. Additionally, both the Rileys and the Rockwells admit that they were involved in independent investments; A business relationship between two people does not, without more, preclude separate investments outside the relationship. In Desantis v. Dixon, 236 P.2d 38 (Ariz. 1951), the Arizona Supreme Court recognized that where one of two partners purchases a vacant lot in his own name and then leases it to the partnership, the “partner who buys a vacant lot is not a constructive trustee merely by virtue of the partnership relation.” Id. at 41-42. Moreover, although Leon, Jr. acted as Marjorie’s advisor with regard to certain properties, she did not consult him on all her property investments. The record is clear that Marjorie relied, to a great extent, on the advice and counsel of her attorney. The relationships between Leon, Jr. and Marjorie were, in part, products of convenience. Marjorie lived in Oregon and Leon, Jr. lived close to the property in question. The fact that Leon, Jr. was willing to assist Marjorie in the management of the property does not create an interest on her part in all his dealings. The district court creates very broad duties that Leon, Jr. must live up to — duties that we conclude are unrealistic. — 704 — The first duty addressed by the district court, that of loyalty, was not breached. The record indicates that, although Marjorie claims she did not know of the option, she and her attorney had sufficient facts to put them on notice not only of the existence of the option, but also its terms, at least by 1973. We also conclude that appellants were not diligent in discovery of facts relating to the existence of the option. Indeed, on that basis alone, we could hold that Marjorie’s action, which was not filed until 1981, was time-barred. The second duty imposed on Leon, Jr. by the district court was to disclose and offer to appellants and the trusts the chance to take advantage of the option. This is unsupportable. The option was offered only to Leon, Jr.; he had neither the duty nor the right to expand the terms of Earl’s offer. The next duty discussed by the district court is to avoid conflicts between Leon, Jr.’s own interests and those of appellants and the trusts. This is a fair statement of the law. However, we perceive no conflict between Leon, Jr.’s role as fiduciary and his receiving the option. The district court also states that Leon, Jr. personally competed with, profited from and enhanced his own interests to the detriment and at the expense of the interests of appellants and the trusts. We disagree. There is no showing that the trusts or the appellants were injured in any way. The assets of the trusts have been maintained and their value has not been diminished. Appellants contend that the trusts granted the trustees substantial power and authority to invest in opportunities such as the option in question. The district court agreed that this power existed, but faulted only Leon, Jr. for failing to offer the option to the trusts. However, respondent Bank also knew of the option due to its role as sole trustee over Earl’s trust, and in order for the trusts to have purchased the option, both Leon, Jr. and the Bank would have had to have been involved. The district court also determined that the statute of limitations was tolled and did not commence to run, as to the infant plaintiffs, Justine Halliday Hylton and Dylan Michael Riley, prior to the commencement of this action. We conclude, however, that Justine Halliday Hylton and Dylan Michael Riley are not proper parties to this action; as mere incidental beneficiaries of the trust, they lack standing absent the death of their respective parents. On — 705 — remand, we direct the district court to dismiss this action as to Justine Halliday Hylton and Dylan Michael Riley. Additionally, retention of the property covered by the option would not unjustly enrich respondents Rockwell. The district court found that “Leon, Jr., as nephew of Earl, was one of the natural objects of Earl’s bounty and as such, the Bank was not put on notice of any improprieties motivating Earl to amend the trust.” The record does not sustain the allegation of improprieties referred to by the district court. The district court also found that “Earl Rockwell retained complete, unfettered control of the trust assets of Trust 600.” In the exercise of that control he elected to offer Leon, Jr. the opportunity afforded by the option. While it may have been selfish and morally wrong not to at least ultimately provide a basis for Marjorie to share in the ownership of the optioned property, such considerations do not provide a legal foundation for relief. We conclude that appellants have no legal access to any of the property covered by the option. That portion of the judgment creating a constructive trust on behalf of appellants is vacated. Appellants were not injured and are not entitled to damages. The district court also erred in removing Leon, Jr. as trustee of all trusts of which appellants are beneficiaries and we vacate that portion of the judgment. We perceive no error in relation to the findings that pertain to the Bank and we affirm those portions of the judgment. Additionally, respondents Rockwell and Bank are entitled to recover their costs of suit against appellants. Finally, upon remand, we direct the district court to enter judgment consistent with this opinion.6 Young and Mowbray, JJ., concur. Footnotes [1] The banks have merged by consolidation and are now known as First Interstate Bank of Nevada. [2] Although Leon, Jr. had “needled” his father and Earl to create trusts in 1963, the record does not indicate that he took any active part in instigating the pian to grant an option, or that he sought the offer. [3] The purchase price was set at $300,000; the property had been appraised at $264,500 in 1964. [4] Marjorie also sought compensatory and punitive damages and other relief. [5] Leon, Jr. purchased the option in 1966. His mother, Bessie, had passed away in 1962. She left one-eighth interest in the property to each of her children and under the terms of her trust, the distribution was to be made ten years after her death, in 1972. Leon, Jr., as trustee of Bessie’s trust, knew its terms. [6] Due to the disposition of this appeal, we conclude that it is unnecessary to consider appellants’ assignments of error.