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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Rockingham County Probate Court No. 2009-356

LILLIAN E. BILLEWICZ & a. v. JOHN C. RANSMEIER & a. Argued: May 4, 2010 Opinion Issued: November 24, 2010 Kalled Law Offices, PLLC, of Ossipee (John P. Kalled on the brief and orally), for the plaintiffs. Ransmeier & Spellman, P.C., of Concord (John T. Alexander on the brief and orally), for the defendants. HICKS, J. Plaintiffs Lillian Billewicz; Johnathan Billewicz and Michael Billewicz, by and through Lillian Billewicz; and the Interim Trustee of their several trusts, John Kalled, appeal the decision of the Rockingham County Probate Court (Patten, J.) granting the motion of defendants John C. Ransmeier and Ransmeier & Spellman to dismiss the plaintiffs' petition based upon the statutes of limitation. See RSA 564-B:10-1005(c)(1) (2007); RSA 508:4 (2010). We affirm.

The following facts are not in dispute. Warren J. Billewicz, father to Lillian Billewicz (Lillian) and grandfather to Lillian's sons, Johnathan and Michael Billewicz, died on November 6, 1989, leaving a substantial fortune. Attorney Robert W. Billewicz, Warren's son and Lillian's brother, was appointed trustee over several estate trusts, with Lillian and her sons as beneficiaries of five of the trusts. Lillian was suspicious of the will and trust documents produced by her brother, and in 1998 sought to have him removed as trustee. In January 1999, the probate court appointed Attorney John C. Ransmeier of Ransmeier & Spellman, P.C. to serve as Interim Trustee of the five trusts. In August 2001, the plaintiffs, with independent counsel, filed a petition to reopen Warren Billewicz's estate, alleging Robert Billewicz had forged the will and trust documents. In the trial structuring order, dated March 22, 2002, the probate court ruled that Attorney Ransmeier, as the Interim Trustee, "need not actively participate in the hearings on the merits and motions" relating to the petition. The probate court further outlined the parties' agreement that Attorney Ransmeier's lack of participation did "not constitute a breach of any standard of conduct in fulfilling the trustee's fiduciary obligations to the various beneficiaries." On August 11, 2005, the probate court ruled that the will and trust documents were fraudulent and imposed a constructive trust upon the assets of Robert Billewicz, his trusts and the Warren Billewicz estate, for the benefit of the plaintiffs. In 2003 and 2004, Lillian raised several complaints with the probate court about Attorney Ransmeier's service as trustee. At some point, Attorney Ransmeier requested to resign as Interim Trustee, which the probate court approved on July 1, 2003. On February 25, 2008, the plaintiffs filed a petition against the defendants alleging numerous breaches of fiduciary duty and negligence, including but not limited to failure to pursue a constructive trust and otherwise protect trust assets. In November 2008, the probate court dismissed the petition on the basis of the statutes of limitation contained in RSA 564-B:10-1005 and RSA 508:4. The probate court found that the statute of limitations in RSA 564-B:10-1005 began to run on July 1, 2003, when Attorney Ransmeier resigned as Interim Trustee. It further found that the general statute of limitations for personal actions, RSA 508:4, barred the plaintiffs' action. Specifically, the probate court ruled: The plaintiff[s] knew of the actions and inactions by the trustee and of which they complained in 2003 and 2004. They had standing as beneficiaries of those trusts, with legally protectible [sic] and tangible interests already at stake, to pursue those complaints against their trustee. That standing and those complaints existed quite separately from any relief ultimately afforded to them by the remedy imposed when

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the constructive trust relief they were requesting was ultimately ordered in the underlying equity actions in 2005. The probate court further found that the plaintiffs raised "several complaints about [Attorney Ransmeier's] service as trustee . . . and made it clear, by inference if nothing else, that they would seek recovery of damages" in pleadings filed with the probate court in 2003 and 2004. The plaintiffs moved to reconsider, arguing that the statutes of limitation should have been tolled until the probate court granted the constructive trust on August 11, 2005. They contended that they did not have standing or a ripe justiciable controversy prior to that date. They further argued that RSA 564B:11-1104 created an exception to the application of RSA 564-B:10-1005, by providing that if its application will "substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties," the court should apply "the superseded law," in this case, RSA 508:4. RSA 564B:11-1104(a)(3) (2007). The probate court denied the plaintiffs' motion, ruling: The actions presently being complained of were not conditional or contingent on the plaintiffs obtaining status as beneficiaries of the additional constructive trusts . . . granted in the underlying action. The plaintiffs were already beneficiaries of the five trusts for which the defendant served as trustee. Whether they were ultimately successful in the action to obtain the imposition of constructive trusts or some determination of how much they were damaged by the actions of the third persons that led to the constructive trusts being established, did not diminish the beneficiaries [sic] standing or the fact that they may have had a justiciable controversy against their then trustee for his actions or inactions. The probate court found that the plaintiffs cited no controlling authority in support of their tolling argument and refused to toll the statutes of limitation under "these factual circumstances." Finally, the probate court found that RSA 564-B:11-1104 did not provide a basis for granting the plaintiffs' motion for reconsideration. This appeal followed. The plaintiffs argue that the probate court erred in granting the motion to dismiss by failing to distinguish Attorney Ransmeier's duties as trustee of the five trusts from his duties under the later constructive trust. They further argue that the probate court erred by applying RSA 564-B:10-1005(c)(1) rather than RSA 508:4. They also argue that they did not have "legal rights to the property in dispute" until the probate court ordered the establishment of the

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constructive trust on August 11, 2005. Finally, they argue that the statutes of limitation should have been tolled until August 11, 2005. In reviewing the granting of a motion to dismiss, we normally determine whether the allegations in the plaintiffs' pleadings are reasonably susceptible of a construction that would permit recovery. McNamara v. Hersh, 157 N.H. 72, 73 (2008). Here, however, the defendants' motion relied upon the statutes of limitation, an affirmative defense. See Perez v. Pike Inds., 153 N.H. 158, 160 (2005). RSA 508:4, I, provides that "all personal actions . . . may be brought only within 3 years of the act or omission complained of . . . ." "[T]he defendant bears the burden of proving that [the statute of limitations] applies in a given case." Glines v. Bruk, 140 N.H. 180, 181 (1995). The defendant meets that burden "by a showing that the action was not `brought . . . within 3 years of the act or omission complained of.'" Id. (quoting RSA 508:4, I). Although RSA 508:4 provides a discovery rule exception, the plaintiffs have not raised it here. See RSA 508:4, I. RSA 564-B:10-1005(c) provides, in pertinent part: "[A] judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within 3 years after the . . . removal, resignation, or death of the trustee." RSA 564-B:10-1005(c)(1). RSA 564-B:10-1005 contains no discovery rule exception. Thus, once the defendant establishes that the cause of action was not brought within the three-year period, the action should ordinarily be dismissed. See RSA 564-B:10-1005(c). The probate court granted the motion pursuant to both statutes. Because the facts are not in dispute, our review is de novo. State of N.H. v. Lake Winnipesaukee Resort, 159 N.H. 42, 45 (2009). I. Standing

The plaintiffs argue that they did not have standing to sue the defendants until August 11, 2005, when the probate court ordered the establishment of a constructive trust, because they did not have a cause of action prior to that date. The defendants counter that the plaintiffs' standing to sue as beneficiaries of the five trusts existed separately from their rights under the later constructive trust, and as beneficiaries under the five trusts, the plaintiffs had standing to sue the defendants during the statutory period. The general rule for standing is that a party may bring suit when "the party [has] suffered a legal injury against which the law was designed to protect." Libertarian Party of N.H. v. Sec'y of State, 158 N.H. 194, 195 (2008) (quotation omitted). In determining standing in a motion to dismiss, the probate court must "look beyond the plaintiffs' unsubstantiated allegations and determine, based on the facts, whether the plaintiffs have sufficiently

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demonstrated their right to claim relief." Johnson v. Town of Wolfeboro Planning Bd., 157 N.H. 94, 96 (2008) (quotation omitted). The underlying facts are not in dispute; thus, we review the probate court's determination of the plaintiffs' standing de novo. Id. We find no merit to the plaintiffs' argument that they had no standing to bring the action against the defendants before the probate court ordered the establishment of the constructive trust on August 11, 2005. The plaintiffs had knowledge of their allegations during Attorney Ransmeier's service as Interim Trustee. Indeed, they filed objections and complaints about his service from 2003 to 2004. Further, they had standing to bring the action as beneficiaries of the five trusts. See RSA 564-B:10-1002 (2007). Thus, the probate court correctly concluded that the plaintiffs had standing to bring a cause of action against the defendants when Attorney Ransmeier resigned as Interim Trustee on July 1, 2003. II. Justiciable Controversy

The plaintiffs also contend that no "justiciable controversy" existed until August 11, 2005, when the probate court ordered the establishment of a constructive trust. The defendants counter that: (1) the plaintiffs knew the facts underlying their claims before the statute of limitations had elapsed; and (2) there was no legal impediment to the plaintiffs bringing suit within the limitations period. The plaintiffs argue that their cause of action was not ripe until August 11, 2005, the day the court ordered the constructive trust. Under ripeness principles, the courts generally do not consider cases involving uncertain or contingent future matters, and it is required that there be an actual case or controversy between the parties that is sufficiently immediate and real so as to warrant adjudication. 1A C.J.S. Actions

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