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In re Trust Known as the Maintenance Fund Sunset Memorial Park Chapel Mausoleum Company of Scottsbluff

Supreme Court of Nebraska

April 19, 2019

In re Trust known as the Maintenance Fund of the Sunset Memorial Park Chapel Mausoleum Company of Scottsbluff, Nebraska.
v.
Sunset Memorial Park Cemetery Association, Inc., and Myrtle Hughbanks, interested parties, appellants and cross-appellees. Bank of the West, formerly known as The Guardian State Bank and Trust Co., Trustee, appellee and cross-appellant,

         1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.

         2. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

         3. Trusts: Equity: Appeal and Error. Absent an equity question, an appellate court reviews trust administration matters for error appearing on the record; but where an equity question is presented, appellate review of that issue is de novo on the record.

         4. Decedents' Estates: Trusts: Equity: Appeal and Error. The removal of a trustee is a question of equity, and therefore an appellate court reviews de novo the question of whether a trustee was properly removed.

         5. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy.

         6. Jurisdiction: Standing. The requirement of standing is fundamental to a court's exercise of jurisdiction, and either a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.

         [302 Neb. 955] 7. Standing: Jurisdiction: Proof. A party invoking a court's or tribunal's jurisdiction bears the burden of establishing the elements of standing.

         8. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.

         9. Standing: Claims: Parties. To have standing, a litigant must assert the litigant's own rights and interests, and cannot rest a claim on the legal rights or interests of third parties.

         10. Trusts. In the case of a special purpose trust, trustees cannot on their own decide that carrying out the trust as originally planned has become impossible or inexpedient.

         11. Trusts: Fees. A trustee will generally not be allowed to resign if the terms of the trust agreement, agreed to by the settlor and trustee, became inadequate according to the present market value of a trustee's services.

          Appeal from the County Court for Scotts Bluff County: James M. Worden, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Robert M. Brenner, of Robert M. Brenner Law Office, for appellants.

          John A. Selzer, of Simmons Olsen Law Firm, P.C., L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg JJ.

          MILLER-LERMAN, J.

         NATURE OF CASE

         Bank of the West, formerly known as The Guardian State Bank and Trust Co. (Trustee), as trustee for a trust fund created for the perpetual care and maintenance of the Sunset Memorial Park Mausoleum, petitioned the county court for Scotts Bluff County to resign as trustee; to be paid trustee fees, expenses, and attorney fees; and to terminate the perpetual care trust due to circumstances not anticipated at the time the trust was created. Several objectors opposed terminating the trust, including [302 Neb. 956] Myrtle Hughbanks, a person who owns a crypt in the mausoleum, and Sunset Memorial Park Cemetery Association, Inc. (Cemetery Association), a nonprofit corporation that owns and operates the surrounding cemetery in which the mausoleum is located. The county court found that the Cemetery Association lacked standing and accepted the resignation of the Trustee. The county court ordered the Trustee to pay trustee fees, attorney fees, costs, and expenses incurred during the prosecution of the petition, which payments would exhaust the balance of the trust fund. The county court denied both parties' motions for attorney fees, and its order did not provide for future trust management. The Cemetery Association and Hughbanks appealed, and the Trustee cross-appealed. We determine that in addition to Hughbanks, the Cemetery Association possesses standing, and that the county court's ruling to the contrary was error. Further, because of the perpetual nature of a mausoleum trust, it was error to grant the Trustee's request for resignation and discharge without the Trustee's having identified and requested the appointment of a successor trustee. Accordingly, we affirm the county court's denial of the parties' motions for attorney fees, but we reverse the order of discharge and associated award of fees and remand the cause for further proceedings.

         STATEMENT OF FACTS

         The issues in this case must be decided by reference to the mausoleum-related statutes and the Trust agreement. The statutes are found at Neb. Rev. Stat. § 12-601 et seq. (Reissue 2012) ...


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