Vickery v. Evelyn V. Trumble Living Trust
2011 Colo. App. LEXIS 1399
Colo. Ct. App.2011Background
- Monica Vickery sued Evelyn V. Trumble Living Trust, Kerry Vickery (trustee), and Merry Gayle Vickery in a third lawsuit arising from prior judgments.
- The trust was revocable, originated with Evelyn as settlor, trustee, and sole beneficiary, with Merry Gayle as successor trustee and sole beneficiary on Evelyn's death.
- Before this suit, Evelyn amended the trust to designate Kerry as successor trustee and sole beneficiary, after Monica obtained substantial judgments and costs against Evelyn and Merry Gayle.
- Two days after the verdicts and on the eve of judgment in the second case, Evelyn died; shortly thereafter, a settlement offer was accepted by Monica that did not disclose the amendment to the trust.
- Monica sought relief including invalidation of the amended trust and execution against trust assets premised on CUFTA; the district court dismissed under Rule 12(b)(5) and denied post-judgment relief.
- The appellate court affirmed, holding Monica lacked a stateable CUFTA claim, found standing, rejected fraudulent concealment and civil conspiracy theories, and remanded for attorney-fee determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Monica has standing to sue on CUFTA claims | Monica has injury to a legally protected creditor right. | Defendants argue lack of standing and lack of jurisdiction under 12(b)(1) or 12(b)(5). | Monica has standing as judgment creditor; jurisdiction preserved for review. |
| Whether CUFTA claim against Evelyn and Merry Gayle/Trust is stated | Amendment of the trust was a fraudulent transfer by debtor or related scheme. | Evelyn, not Merry Gayle, amended the trust; the amendment did not transfer assets; no debtor-related transfer by Merry Gayle. | CUFTA claim fails against Evelyn, Merry Gayle, and the trust. |
| Whether CUFTA claim can be based on a transfer by a third party to defraud a creditor | Trust amendment by a third party could be treated as transfer affecting Merry Gayle's debt. | No authority supports a CUFTA transfer via a non-debtor third party; appellate undeveloped argument waived. | CUFTA claim cannot be maintained on third-party transfer theory. |
| Whether fraudulent concealment claim is viable | Merry Gayle or Kerry had a duty to disclose the amendment before Monica settled. | No fiduciary duty or duty to disclose; silence not actionable; no disclosure by Kerry or the trust occurred during settlement. | Fraudulent concealment claim properly dismissed. |
| Whether civil conspiracy claim lies, given absence of underlying CUFTA or other wrongs | Conspiracy to defraud creditors based on CUFTA and concealment. | Conspiracy requires an underlying unlawful act; none established here. | Civil conspiracy claim properly dismissed. |
Key Cases Cited
- Ainscough v. Owens, 90 P.3d 851 (Colo.2004) (standing requires injury in fact to a legally protected right)
- Plains Metro. Dist. v. KenCaryl Ranch Metro. Dist., 250 P.3d 697 (Colo.App.2010) (essence of claim governs appeal, not label)
- Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo.App.2002) (statutory standing rights to relief for plaintiff position)
- HealthONE v. Rodriguez, 50 P.3d 879 (Colo.2002) (standing—injury to legally protected interest)
- Grand Valley Citizens' Alliance v. Colo. Oil & Gas Conservation Comm'n, — P.3d — (Colo.App.2010) (standing and remedial considerations on appeal)
- Schoen v. Morris, 15 P.3d 1094 (Colo.2000) (standard for reviewing dismissals under Rule 12(b)(5))
- Public Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001) (de novo review of 12(b)(5) dismissals)
- Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155 (Colo.App.2008) (standard for reviewing 12(b)(5) dismissals; documents may be considered)