GERALD E. GOWDY, beneficiary of the Marian Louise Jackson Living Trust, Appellant (Plaintiff),
DENNIS C. COOK, CRAIG C. COOK and COOK AND ASSOCIATES, P.C. Appellees (Defendants).
from the District Court of Albany County The Honorable Tori
R.A. Kricken, Judge
Representing Appellant: Erik J. Oblasser and Frank R. Nelson
of Corthell and King Law Office, P.C., Laramie, Wyoming.
Argument by Mr. Oblasser.
Representing Appellees: Julie N. Tiedeken of McKellar,
Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Appellant Gerald E. Gowdy was a beneficiary of the Marian
Louise Jackson Living Trust. Mr. Gowdy sued Appellees Dennis
C. Cook, Craig C. Cook and Cook and Associates, P.C.
(collectively referred to herein as "the Cooks"),
claiming they violated various duties when drafting and
administering the trust and preparing certain estate planning
documents for him. The district court granted summary
judgment in favor of the Cooks. We affirm.
The dispositive issues in this case are:
1. Did the district court err when it found Mr. Gowdy failed
to establish a material issue of fact showing the Cooks'
actions damaged him?
2. Did the district court abuse its discretion by denying Mr.
Gowdy leave to file a second amended complaint?
3. Did the district court err by concluding, as a matter of
law, Mr. Gowdy violated the no-contest provision of the trust
by bringing an action to void, nullify or set aside a
provision of the trust?
The underlying facts of this case are essentially undisputed.
Dennis C. Cook and Craig C. Cook are law partners in Cook and
Associates, P.C. Marian Louise Jackson retained Dennis in
1996 to prepare the initial version of her revocable living
trust. Ms. Jackson restated her trust in January 2015, and
she executed trust amendments in April and June of 2015.
Dennis drafted all of these documents. In general terms, Mr.
Gowdy was to be the primary beneficiary of the trust after
Ms. Jackson's death. Upon his death, Ms. Jackson's
children would receive part of the trust assets and Mr.
Gowdy's heirs would receive other trust assets, provided
he exercised the power of appointment granted to him under
Ms. Jackson acted as trustee during her lifetime and
appointed Dennis as her successor trustee and Craig as her
trust protector. The trust further stated that, after Ms.
Jackson's death, "Cook and Associates, P.C. or its
designated successor in interest may remove a [t]rust
[p]rotector of any trust at any time, with or without
cause" and appoint a successor trust protector.
The trust protector or a majority of the income beneficiaries
could remove a serving trustee and appoint a successor
trustee. A successor trustee could be an individual or a
corporate fiduciary. Section 3.06 of the trust set out
qualifications for a corporate trustee:
Any corporate fiduciary serving under this agreement as a
[t]rustee must be a bank, trust company, or public charity
that is qualified to act as a fiduciary under applicable
federal and state law and that is not related or subordinate
to any beneficiary within the meaning of Section 672(c) of
the Internal Revenue Code.
Such corporate fiduciary must:
Have a combined capital and surplus of at least One Hundred
Million Dollars; or
Maintain in force a policy of insurance with policy limits of
not less than One Hundred Million Dollars covering the errors
and omissions of my [t]rustee with a solvent insurance
carrier licensed to do business in the state in which my
[t]rustee has its corporate headquarters; or
Have at least One Hundred Million Dollars in assets under
Under § 11.08 of the trust, an individual trustee was
entitled to "fair and reasonable compensation for the
services provided as a fiduciary" and could "charge
additional fees for services provided that are beyond the
ordinary scope of duties, such as fees for legal
services[.]" Similarly, under § 3.10, the trust
protector was entitled to reasonable compensation and could
charge "typical fees for professional services."
Sections 11.06 and 11.07 exonerated the trustee for any
"error of judgment, mistake of law, or action or
inaction of any kind in connection with the
administration" of the trust unless there was clear and
convincing evidence the trustee had acted in bad faith. The
trust protector was also exonerated for any action taken in
good faith. Further, a trustee was entitled to "expend
any portion of the trust assets to defend any claim brought
against the [t]rustee, even if the [t]rustee's defense
costs would exhaust the trust's value, unless the
[t]rustee is shown to have acted in bad faith by clear and
convincing evidence." The trust protector was also
entitled to reimbursement from the trust for costs incurred
in defending any claim unless the trust protector had an
actual intent to harm the beneficiaries of the trust or was
Ms. Jackson's trust also included the following
no-contest provision which became important in this case:
The right of a beneficiary to take any interest given to him
or her under this trust or any trust created under this trust
instrument will be determined as if the beneficiary
predeceased [Ms. Jackson] without leaving any surviving
descendants if that beneficiary, alone or in conjunction with
any other person, engages in any of these actions: . . .
seeks to obtain adjudication in any court proceeding that
[the trust] or any of its provisions is void, or otherwise
seeks to void, nullify, or set aside [the trust] or any of
its provisions[.] . . .
My [t]rustee may defend any violation of this [s]ection at
the expense of the trust estate.
Dennis prepared durable powers of attorney for health care
and living wills for Ms. Jackson and Mr. Gowdy, in which they
named each other as their agents. On other occasions, he
prepared deeds for Ms. Jackson and Mr. Gowdy for their
Ms. Jackson passed away on July 2, 2015, and the trust became
irrevocable. At that point, Dennis became acting trustee and
Craig began serving as trust protector. Dennis prepared a
will, a general power of attorney, a power of attorney for
health care, and ...