Nevada Supreme Court
Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
817880 citations·
Summary of the case Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
The Supreme Court of Nevada affirmed the district court's dismissal of Jerry Gunderson's complaint and denial of his motion to dismiss counterclaims. The case involved the transfer of a Montana property to Series K, Weidner Holdings, LLC, during Jerry's marriage to Kimberly Gunderson. Jerry alleged fraudulent inducement and other claims against the trusts and individuals involved. The court found no viable allegations of fraud and upheld the dismissal with prejudice, as the trust documents excluded Jerry's claims.
Key Issues of the case Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
- Fraudulent inducement in property transfer
- Jurisdiction and counterclaims in Nevada vs. Montana
Key Facts of the case Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
- Jerry Gunderson transferred property to Series K, Weidner Holdings, LLC.
- Trust documents excluded spouses from claiming trust property.
Decision of the case Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
The judgment of the district court was affirmed.
Impact of the case Gunderson Vs. The Irrevocable Tr. Of William P. Weidner
The decision reinforces the enforceability of trust terms excluding claims by spouses and the jurisdictional authority of Nevada courts in such matters.
Opinions
IN THE SUPREME COURT OF THE STATE OF NEVADA
JERRY GUNDERSON, No. 81788
Appellant,
vs.
THE IRREVOCABLE TRUST OF
WILLIAM P. WEIDNER, A NEVADA
TRUST; THE KIMBERLY FILE
GUNDERSON TRUST, A NEVADA
TRUST; SERIES K, WEIDNER DEC 0 1 2021
HOLDINGS, LLC, A NEVADA SERIES
LIMITED LIABILITY COMPANY;
KIMBERLY FAYE GUNDERSON, AN
INDIVIDUAL; LYNN HACKERMAN
WEIDNER, INDIVIDUALLY AND AS
TRUSTEE OF THE KIMBERLY
GUNDERSON TRUST; SUZANNE
LOWDEN, INDIVIDUALLY AND AS
TRUSTEE OF THE KIMBERLY
GUNDERSON TRUST; AND WILLIAM
P. WEIDNER, AN INDIVIDUAL,
Res • ondents.
ORDER OF AFFIRMANCE
This is an appeal from orders dismissing appellant Jerry
Gunderson's complaint, denying Jerry's motion to dismiss certain
counterclaims, and granting injunctive and declaratory relief on them.
Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.
The claims and counterclaims all stem from Jerry and respondent Kimberly
Gunderson's transfer of title to a parcel of Montana real property (the
Beaver Creek Property), during their marriage, to respondent Series K,
Weidner Holdings, LLC. Jerry claims that he agreed to the transfer because
Kimberly and/or her father, respondent William P. Weidner, advised Jerry
that the transfer would not affect his rights in the Beaver Creek Property.
SuPRemz Couor
OF
la I - 3Grzgs-
NEVADA
1947A .411191.
But respondent Kimberly Gunderson Trust (the Kimberly trust)—a
spendthrift trust that Weidner established for Kimberly's benefit—wholly
owned Series K, and was itself a subtrust of another spendthrift trust,
respondent Irrevocable Trust of William P. Weidner (the Weidner trust).
And both the Kimberly and Weidner trusts contained terms expressly
excluding spouses and ex-spouses from laying any claim on trust property.
Several months after the transfer of the Beaver Creek Property,
Kimberly filed for divorce against Jerry in Montana district court (the
divorce action), and Series K served Jerry with a 30-day notice to vacate.
Jerry refused and instead filed a lis pendens against the property. Series
K then sued Jerry for unlawful detainer, quiet title, and slander of title in
a separate Montana district court action (the quiet title action). Jerry filed
a motion to stay the quiet title action pending the results of the divorce
action, which the Montana district court granted. Jerry then sued the
Weidner and Kimberly trusts and their respective trustees, respondents
Suzanne Lowden and Lynne Hackerman Weidner, along with Series K
(collectively, the trust defendants), and William and Kimberly (collectively,
with Lynne and Lowden in their individual capacities, the individual
defendants) in Nevada district court.
In addition to claiming fraudulent inducement solely as against
William and Kimberly, Jerry's Nevada district court complaint raised
myriad other claims against both the individual and trust defendants: civil
RICO, civil conspiracy, unjust enrichment, and conversion. But at the core
of even these claims is William and Kimberly's alleged
SUPREME COURT
OF
NEIMOA
2
1(>) 1 947A M1400
fraudulent inducement of the Beaver Creek Property transfer. See
Nautilus Ins. Co. v. Access Med., LLC, 137 Nev. Adv. Op. 10, 482 P.3d 683,
688 (2021) (noting that unjust enrichment requires that "the plaintiff
confer[] a benefit on the defendant, the defendant appreciates such benefit,
and there is acceptance and retention by the defendant of such benefit under
such circumstances that it would be inequitable for him to retain the benefit
without payment of the value thereof ); Consol. Generator-Nevadcz, Inc. v.
Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998)
(holding that an actionable civil conspiracy "consists of a combination of two
or more persons who, by some concerted action, intend to accomplish
an unlawful objective for the purpose of harming another, and damage
results from the act or acte); Cummings v. Charter Hosp. of Las Vegas, Inc.,
111 Nev. 639, 645, 896 P.2d 1137, 1141 (1995) (noting that a claim for civil
RICO must allege that the defendant committed two or more predicate acts
related to criminal racketeering); Wantz v. Redfield, 74 Nev. 196, 198, 326
P.2d 413, 414 (1958) (holding that conversion requires that the defendant
wrongfully exerted a distinct act of dominion over the plaintiffs personal
property) (emphases added). Accordingly, while Jerry challenges the
district court's dismissal with prejudice of these latter claims—only as
against the trust defendants—arguing that the district court should have
granted him leave to amend them, amendment would have been futile
unless his fraudulent inducement claims against William and Kimberly had
teeth.
lIn the district court, Jerry suggested other conduct by the defendants
was wrongful but has narrowed his focus on appeal. See Powell v. Liberty
Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011)
(holding that issues not raised in an opening brief are waived).
SUPREME COURT
OF
NEVADA
3
10) 1947A calSPJED
--,`"";"" :"'-'1.-7-7102,7•1'.e.1...
The district court dismissed Jerry's fraudulent inducement
claim against William and Kimberly without prejudice and with leave to
amend, but Jerry stood on his existing allegations, presumably because he
had no additional facts to plead. Then, Jerry and the individual defendants
stipulated to convert the district court's initial dismissal without prejudice
of the fraudulent inducement claim to one with prejudice; but rather than
raising the sufficiency of the facts he did plead on appeal, see Bergenfield v.
BAC Horne Loans Servicing, 131 Nev. 683, 685-86, 354 P.3d 1282, 1284
(2015) (noting that a party may "choose[ ] to stand on its complaint" by
requesting dismissal with prejudice and raising sufficiency of the pleading
on appeal), Jerry concedes that they did not present a viable allegation of
fraud in the transfer of the property in the first place. See Powell, 127 Nev.
at 161 n.3, 252 P.3d at 672 n.3.2 And given this concession, no amendment
could have cured the additional claims to the extent that they derived from
the same core conduct. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298
(9th Cir.1998) (noting that a proposed amended complaint is subject to
dismissal with prejudice when the proposed amendment is futile or when
the amended complaint would be immediately subject to dismissal itself.);
see also Zalk-Josephs Co. v. Wells Cargo, Inc., 81 Nev. 163, 171, 400 P.2d
621, 625 (1965) (upholding a dismissal with prejudice on the pleadings
because "[t]here must be some end to the litigation, and appellant may not
proceed to advance one theory after another, as a right to recover a
judgment against defendant, labeling each new theory as an independent
and new cause of action."). Nor were there viable amendments available
based on the facts that remained before the district court—the terms of the
2Jerry does not appeal the dismissal with prejudice of any of the
claims as against the individual defendants.
SUPREME COURT
OF
NEVADA
4
Oi 1947A alba
trust documents themselves expressly negate any claim by Jerry that he
had a legitimate interest in the Beaver Creek Property that would
otherwise render Series K's retention of it wrongful for the purposes of civil
RICO, civil conspiracy, unjust enrichment, or conversion. See In re City
Center Constr. & Lien Master Litig., 129 Nev. 669, 676 n.3, 310 P.3d 574,
579 n.3 (2013) (allowing a court to consider outside documents in a motion
to dismiss if the pleadings reference them and the parties do not question
their contents). Accordingly, the district court's dismissal with prejudice as
to the trust defendants was not in error. See Kamelgard v. Macura, 585
F.3d 334, 339 (7th Cir. 2009) (noting that "a dismissal for failure to state a
claim is a dismissal on the merits, unless the dismissal order states
otherwise; and a dismissal on the merits is normally with prejudice").
Jerry also seeks reversal of the district court's denial of his
motion to dismiss Series K's counterclaims, which sought declaratory relief
that Series K owned the property and injunctive relief requiring Jerry's
release of the lis pendens, and which relief the district court granted.3 First,
Jerry argues that the doctrines of prior-exclusive-jurisdiction, comity,
and/or forum non conveniens should apply to bar Nevada's jurisdiction in
favor of Montana's. But Jerry chose Nevada as a forum, while the Montana
quiet title action was stayed in favor of the divorce action. See Mesi v. Mesi,
136 Nev., Adv. Op. 89, 478 P.3d 366, 370 (2020) (noting that special
3Jerry suggests that the release of the lis pendens violated a
temporary restraining order that prevented the parties from "selling,
encumbering, contracting to sell, or otherwise disposing of or removing from
the jurisdiction of the [Montana divorce] Court" any marital property. [1
JA 180] But, as established, Jerry has no interest in the Beaver Creek
Property and release of a lis pendens does not fall within any of these
categories of prohibited actions in any case.
5
deference is given to a plaintiffs choice of forum in deciding whether to
apply principles of comity); Provincial Gov't of Marinduque v. Placer Do rne,
Inc., 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015) (noting that a plaintiff s
choice of forum is entitled to great deference in forum non conveniens
analysis). Further, the district court handling the divorce action ruled in
deference to and accordance with the Nevada district court's findings
discussed above, based in part on its assessment that the Nevada district
court had greater experience with the laws governing Nevada spendthrift
trusts. Marinduque, 131 Nev. at 300-01, 350 P.3d at 396 (weighing both
private and public interest factors); Chapman v. Deutsche Bank Nat. Tr,
Co., 651 F.3d 1039, 1043 (9th Cir. 2011), certified question answered sub
norn. Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev. 314, 302 P.3d 1103
(2013) (stating that prior-exclusive-jurisdiction applies where there is
actual conflicting jurisdiction between two courts).
And Jerry's second point—that the counterclaims were not
properly filed because they were included in a document that Series K filed
and titled as an "answee but which was not one in substance because Series
K had joined the other respondents then-pending motion to dismiss—is
likewise unavailing. Even beyond its title, the document addressed the
merits of Jerry's case by expressly declining to respond to his specific
allegations and laying out Series K's affirmative defenses. See Answer,
Black's Law Dictionary (1Ith ed. 2019) (defining an answer as "[a]
defendant's first pleading that addresses the merits of the case"), and
compare with Srnith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1345,
950 P.2d 281, 282 (1997) (dismissing as deficient a paper filed as a "cross-
claim" where it was filed prior to and entirely separate from the answer to
the complaint. Finally, to the extent Jerry objects on appeal to the district
6
court's denial of his motion to dismiss the second counterclaim, for slander
of title, his objection fails, given the stipulation dismissing all counterclaims
with prejudice except for the first.
Accordingly we,
ORDER the judgment of the district court AFFIRMED.
6
J.
Adam. , J
Pickering
J.
Herndon
cc: Hon. Timothy C. Williams, District Judge
Eleissa C. Lavelle, Settlement Judge
Kaplan Cottner
Foley & Oakes, PC
Lex Nova Law
Hayes Wakayama
Santoro Whitmire
Eighth District Court Clerk
SUPREME COURT
OF
N EVA DA
7
(0) I 947A alD.
---
IN THE SUPREME COURT OF THE STATE OF NEVADA
JERRY GUNDERSON, No. 81788
Appellant,
vs.
THE IRREVOCABLE TRUST OF
WILLIAM P. WEIDNER, A NEVADA
TRUST; THE KIMBERLY FILE
GUNDERSON TRUST, A NEVADA
TRUST; SERIES K, WEIDNER DEC 0 1 2021
HOLDINGS, LLC, A NEVADA SERIES
LIMITED LIABILITY COMPANY;
KIMBERLY FAYE GUNDERSON, AN
INDIVIDUAL; LYNN HACKERMAN
WEIDNER, INDIVIDUALLY AND AS
TRUSTEE OF THE KIMBERLY
GUNDERSON TRUST; SUZANNE
LOWDEN, INDIVIDUALLY AND AS
TRUSTEE OF THE KIMBERLY
GUNDERSON TRUST; AND WILLIAM
P. WEIDNER, AN INDIVIDUAL,
Res • ondents.
ORDER OF AFFIRMANCE
This is an appeal from orders dismissing appellant Jerry
Gunderson's complaint, denying Jerry's motion to dismiss certain
counterclaims, and granting injunctive and declaratory relief on them.
Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.
The claims and counterclaims all stem from Jerry and respondent Kimberly
Gunderson's transfer of title to a parcel of Montana real property (the
Beaver Creek Property), during their marriage, to respondent Series K,
Weidner Holdings, LLC. Jerry claims that he agreed to the transfer because
Kimberly and/or her father, respondent William P. Weidner, advised Jerry
that the transfer would not affect his rights in the Beaver Creek Property.
SuPRemz Couor
OF
la I - 3Grzgs-
NEVADA
1947A .411191.
But respondent Kimberly Gunderson Trust (the Kimberly trust)—a
spendthrift trust that Weidner established for Kimberly's benefit—wholly
owned Series K, and was itself a subtrust of another spendthrift trust,
respondent Irrevocable Trust of William P. Weidner (the Weidner trust).
And both the Kimberly and Weidner trusts contained terms expressly
excluding spouses and ex-spouses from laying any claim on trust property.
Several months after the transfer of the Beaver Creek Property,
Kimberly filed for divorce against Jerry in Montana district court (the
divorce action), and Series K served Jerry with a 30-day notice to vacate.
Jerry refused and instead filed a lis pendens against the property. Series
K then sued Jerry for unlawful detainer, quiet title, and slander of title in
a separate Montana district court action (the quiet title action). Jerry filed
a motion to stay the quiet title action pending the results of the divorce
action, which the Montana district court granted. Jerry then sued the
Weidner and Kimberly trusts and their respective trustees, respondents
Suzanne Lowden and Lynne Hackerman Weidner, along with Series K
(collectively, the trust defendants), and William and Kimberly (collectively,
with Lynne and Lowden in their individual capacities, the individual
defendants) in Nevada district court.
In addition to claiming fraudulent inducement solely as against
William and Kimberly, Jerry's Nevada district court complaint raised
myriad other claims against both the individual and trust defendants: civil
RICO, civil conspiracy, unjust enrichment, and conversion. But at the core
of even these claims is William and Kimberly's alleged
SUPREME COURT
OF
NEIMOA
2
1(>) 1 947A M1400
fraudulent inducement of the Beaver Creek Property transfer. See
Nautilus Ins. Co. v. Access Med., LLC, 137 Nev. Adv. Op. 10, 482 P.3d 683,
688 (2021) (noting that unjust enrichment requires that "the plaintiff
confer[] a benefit on the defendant, the defendant appreciates such benefit,
and there is acceptance and retention by the defendant of such benefit under
such circumstances that it would be inequitable for him to retain the benefit
without payment of the value thereof ); Consol. Generator-Nevadcz, Inc. v.
Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998)
(holding that an actionable civil conspiracy "consists of a combination of two
or more persons who, by some concerted action, intend to accomplish
an unlawful objective for the purpose of harming another, and damage
results from the act or acte); Cummings v. Charter Hosp. of Las Vegas, Inc.,
111 Nev. 639, 645, 896 P.2d 1137, 1141 (1995) (noting that a claim for civil
RICO must allege that the defendant committed two or more predicate acts
related to criminal racketeering); Wantz v. Redfield, 74 Nev. 196, 198, 326
P.2d 413, 414 (1958) (holding that conversion requires that the defendant
wrongfully exerted a distinct act of dominion over the plaintiffs personal
property) (emphases added). Accordingly, while Jerry challenges the
district court's dismissal with prejudice of these latter claims—only as
against the trust defendants—arguing that the district court should have
granted him leave to amend them, amendment would have been futile
unless his fraudulent inducement claims against William and Kimberly had
teeth.
lIn the district court, Jerry suggested other conduct by the defendants
was wrongful but has narrowed his focus on appeal. See Powell v. Liberty
Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011)
(holding that issues not raised in an opening brief are waived).
SUPREME COURT
OF
NEVADA
3
10) 1947A calSPJED
--,`"";"" :"'-'1.-7-7102,7•1'.e.1...
The district court dismissed Jerry's fraudulent inducement
claim against William and Kimberly without prejudice and with leave to
amend, but Jerry stood on his existing allegations, presumably because he
had no additional facts to plead. Then, Jerry and the individual defendants
stipulated to convert the district court's initial dismissal without prejudice
of the fraudulent inducement claim to one with prejudice; but rather than
raising the sufficiency of the facts he did plead on appeal, see Bergenfield v.
BAC Horne Loans Servicing, 131 Nev. 683, 685-86, 354 P.3d 1282, 1284
(2015) (noting that a party may "choose[ ] to stand on its complaint" by
requesting dismissal with prejudice and raising sufficiency of the pleading
on appeal), Jerry concedes that they did not present a viable allegation of
fraud in the transfer of the property in the first place. See Powell, 127 Nev.
at 161 n.3, 252 P.3d at 672 n.3.2 And given this concession, no amendment
could have cured the additional claims to the extent that they derived from
the same core conduct. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298
(9th Cir.1998) (noting that a proposed amended complaint is subject to
dismissal with prejudice when the proposed amendment is futile or when
the amended complaint would be immediately subject to dismissal itself.);
see also Zalk-Josephs Co. v. Wells Cargo, Inc., 81 Nev. 163, 171, 400 P.2d
621, 625 (1965) (upholding a dismissal with prejudice on the pleadings
because "[t]here must be some end to the litigation, and appellant may not
proceed to advance one theory after another, as a right to recover a
judgment against defendant, labeling each new theory as an independent
and new cause of action."). Nor were there viable amendments available
based on the facts that remained before the district court—the terms of the
2Jerry does not appeal the dismissal with prejudice of any of the
claims as against the individual defendants.
SUPREME COURT
OF
NEVADA
4
Oi 1947A alba
trust documents themselves expressly negate any claim by Jerry that he
had a legitimate interest in the Beaver Creek Property that would
otherwise render Series K's retention of it wrongful for the purposes of civil
RICO, civil conspiracy, unjust enrichment, or conversion. See In re City
Center Constr. & Lien Master Litig., 129 Nev. 669, 676 n.3, 310 P.3d 574,
579 n.3 (2013) (allowing a court to consider outside documents in a motion
to dismiss if the pleadings reference them and the parties do not question
their contents). Accordingly, the district court's dismissal with prejudice as
to the trust defendants was not in error. See Kamelgard v. Macura, 585
F.3d 334, 339 (7th Cir. 2009) (noting that "a dismissal for failure to state a
claim is a dismissal on the merits, unless the dismissal order states
otherwise; and a dismissal on the merits is normally with prejudice").
Jerry also seeks reversal of the district court's denial of his
motion to dismiss Series K's counterclaims, which sought declaratory relief
that Series K owned the property and injunctive relief requiring Jerry's
release of the lis pendens, and which relief the district court granted.3 First,
Jerry argues that the doctrines of prior-exclusive-jurisdiction, comity,
and/or forum non conveniens should apply to bar Nevada's jurisdiction in
favor of Montana's. But Jerry chose Nevada as a forum, while the Montana
quiet title action was stayed in favor of the divorce action. See Mesi v. Mesi,
136 Nev., Adv. Op. 89, 478 P.3d 366, 370 (2020) (noting that special
3Jerry suggests that the release of the lis pendens violated a
temporary restraining order that prevented the parties from "selling,
encumbering, contracting to sell, or otherwise disposing of or removing from
the jurisdiction of the [Montana divorce] Court" any marital property. [1
JA 180] But, as established, Jerry has no interest in the Beaver Creek
Property and release of a lis pendens does not fall within any of these
categories of prohibited actions in any case.
5
deference is given to a plaintiffs choice of forum in deciding whether to
apply principles of comity); Provincial Gov't of Marinduque v. Placer Do rne,
Inc., 131 Nev. 296, 300-01, 350 P.3d 392, 396 (2015) (noting that a plaintiff s
choice of forum is entitled to great deference in forum non conveniens
analysis). Further, the district court handling the divorce action ruled in
deference to and accordance with the Nevada district court's findings
discussed above, based in part on its assessment that the Nevada district
court had greater experience with the laws governing Nevada spendthrift
trusts. Marinduque, 131 Nev. at 300-01, 350 P.3d at 396 (weighing both
private and public interest factors); Chapman v. Deutsche Bank Nat. Tr,
Co., 651 F.3d 1039, 1043 (9th Cir. 2011), certified question answered sub
norn. Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev. 314, 302 P.3d 1103
(2013) (stating that prior-exclusive-jurisdiction applies where there is
actual conflicting jurisdiction between two courts).
And Jerry's second point—that the counterclaims were not
properly filed because they were included in a document that Series K filed
and titled as an "answee but which was not one in substance because Series
K had joined the other respondents then-pending motion to dismiss—is
likewise unavailing. Even beyond its title, the document addressed the
merits of Jerry's case by expressly declining to respond to his specific
allegations and laying out Series K's affirmative defenses. See Answer,
Black's Law Dictionary (1Ith ed. 2019) (defining an answer as "[a]
defendant's first pleading that addresses the merits of the case"), and
compare with Srnith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1345,
950 P.2d 281, 282 (1997) (dismissing as deficient a paper filed as a "cross-
claim" where it was filed prior to and entirely separate from the answer to
the complaint. Finally, to the extent Jerry objects on appeal to the district
6
court's denial of his motion to dismiss the second counterclaim, for slander
of title, his objection fails, given the stipulation dismissing all counterclaims
with prejudice except for the first.
Accordingly we,
ORDER the judgment of the district court AFFIRMED.
6
J.
Adam. , J
Pickering
J.
Herndon
cc: Hon. Timothy C. Williams, District Judge
Eleissa C. Lavelle, Settlement Judge
Kaplan Cottner
Foley & Oakes, PC
Lex Nova Law
Hayes Wakayama
Santoro Whitmire
Eighth District Court Clerk
SUPREME COURT
OF
N EVA DA
7
(0) I 947A alD.