                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
KAREN A. DERRINGER, et al.,   )
                              )
          Plaintiffs,         )
                              )
          v.                  )      Civil Action No. 09-1979 (RWR)
                              )
MARIANNE EMERSON, et al.,     )
                              )
          Defendants.         )
______________________________)

                       MEMORANDUM OPINION

     Plaintiffs Karen A. Derringer and Sanna Lee Solem (“Sanna

Lee”) bring this action against Marianne Emerson and the Ray

Solem Charitable Foundation (“the Foundation”) involving a

dispute over their father’s living trust.   The defendants have

moved to dismiss the action, arguing, in part, that the

plaintiffs’ action is barred by Virginia’s two-year statute of

limitations on actions contesting a will.   Because Derringer and

Sanna Lee have effectively contested the trust by requesting

declaratory relief that would invalidate amendments made to their

father’s trust, and the contest is barred by Virginia’s two-year

statute of limitations, the defendants’ motions to dismiss,

treated as motions for summary judgment, will be granted.

                              BACKGROUND

      On February 6, 2004, Richard Ray Solem (“Solem”),

Derringer’s and Sanna Lee’s father and Emerson’s common law

husband (Am. Compl. ¶ 9), created a living trust for the
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administration of all of his assets, both during his life and

upon his death.   (Id. ¶ 8; see also Ex. 1.)    It initially named

Derringer and Sanna Lee as beneficiaries of his estate, and

allocated to them upon his death between $2,000,000 and

$4,000,000 of trust assets, with the remaining assets distributed

to the Foundation.   (Id. ¶¶ 10-11, Ex. 1 at 8-2.)     The trust’s no

contest clause states that

     [i]f any person, including a beneficiary . . . shall
     in any manner, directly or indirectly, attempt to
     contest or oppose the validity of this agreement,
     including any amendments thereto, or commences or
     prosecutes any legal proceedings to set this agreement
     aside, then . . . such person shall forfeit his or her
     share, cease to have any right or interest in the trust
     property, and shall be deemed to have predeceased me.

(Id., Ex. 1 at 18-6.)

     The trust designated Solem as its trustee and Derringer as a

successor trustee in the event of Solem’s death or mental

incompetence.   (Id., Ex. 1 at 1-1, 15-2 - 15-3.)     On

September 27, 2004, however, Solem signed a memorandum (“the

Memorandum”) entitled “Modifications in Richard Ray Solem Living

Trust” directed to Emerson and his lawyer, expressing his

decision to remove Derringer as a successor trustee to his trust

and to transfer all of his trust assets to the Foundation upon

his death.   (Id. ¶ 14, Ex. 3.)    Solem stated that he “no longer

trust[ed] . . . [Derringer] to responsibly act as successor

trustee” and “[did] not wish to name [his] daughters as

beneficiaries of [his] estate[.]”     (Id., Ex. 3.)   On
                                   - 3 -

September 29, 2004, Solem executed a notarized summary (“the

Summary”) memorializing his intentions regarding his trust

amendment.    (Id. ¶ 14, Ex. 2.)    In the Summary, Solem named

Emerson as the successor trustee to his trust, and, if Emerson

was unable to serve, Sanna Lee as the next successor trustee, and

named the Foundation as the trust’s beneficiary.       (Id., Ex. 2

¶¶ 4, 6.)    Both Derringer and Sanna Lee were aware that

modifications had been made to the trust as of January 2006.         In

an email dated April 6, 2005, Solem told Derringer that he had

“made alternative arrangements for his estate” (Defs.’ Mem. of P.

& A. in Supp. of Mot. to Dismiss (“Defs.’ Mem.”), Ex. 2, Att. A),

and Sanna Lee sent an email to Emerson on January 12, 2006

stating that she understood that her father had removed her from

his will, but questioned whether money had been set aside for her

for specific purposes.    (Id., Ex. 2, Att. B.)

     Solem died on January 4, 2006.        (Am. Compl., Ex. 4; Defs.’

Mem. at 2, Ex. 1.)    On October 14, 2009, Derringer and Sanna Lee

filed this action.    Their amended complaint seeks declaratory

relief regarding the terms of the trust.       The defendants move to

dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing

that Derringer and Sanna Lee’s action amounts to a trust contest

and is barred by Virginia’s two-year statute of limitations.

Plaintiffs oppose the defendants’ motions.
                               - 4 -

                             DISCUSSION

     A motion to dismiss for failure to state a claim may be

granted where a complaint, construed in the light most favorable

to the plaintiff, does not allege sufficient facts to support a

claim.   See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

“‘A defendant may raise the affirmative defense of statute of

limitations via a Rule 12(b)(6) motion when the facts that give

rise to the defense are clear from the face of the complaint.’”

Perry v. Scholar, 696 F. Supp. 2d 91, 95 (D.D.C. 2010) (quoting

Turner v. Afro-American Newspaper Co., 572 F. Supp. 2d 71, 72

(D.D.C. 2008)).   When considering

     a motion to dismiss under Rule 12(b)(6) asserting a
     statute of limitations bar, where both parties submit
     material outside the pleadings and “the parties are not
     taken by surprise or deprived of a reasonable
     opportunity to contest facts averred outside the
     pleadings and the issues involved are discrete” legal
     issues, the court may convert the motion to a motion for
     summary judgment “without providing notice or the
     opportunity for discovery to the parties.”

Highland Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d

79, 82 (D.D.C. 2009) (quoting Tunica-Biloxi Tribe of La. v. United

States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008)).   Because both

sides have submitted exhibits outside the pleadings, and the

exhibits have not been excluded by the court, the defendants’

motions will be treated as motions for summary judgment.   Summary

judgment may be granted where the moving party demonstrates that

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.   Fed. R. Civ. P. 56(c).
                                - 5 -

A genuine issue of material fact is presented where a “reasonable

jury could return a verdict for the non-moving party.”    Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Under Virginia law, “a resort to the means provided by law

for attacking the validity of a will amounts to a contest[.]”

Womble v. Gunter, 95 S.E.2d 213, 219 (Va. 1956) (internal

quotation marks omitted).    A party contests the validity of a

will1 when it challenges the will on grounds of lack of

testamentary capacity, fraud, undue influence, improper execution,

forgery, or subsequent revocation by a later will.    See id. at

216.    This list, however, is not exhaustive.   See In re Rohrbaugh,

Nos. FI 2002-68397, CL 2009-16701, 2010 WL 1805359, at *8 n.10

(Va. Cir. Mar. 31, 2010) (noting that Womble did not expressly

state or imply that lack of testamentary capacity, fraud, undue

influence, improper execution, forgery, or subsequent revocation

by a later will were the only grounds that constitute a will

contest).    The question of whether an action seeking

interpretation of a will’s provisions constitutes a contest

depends largely on the language of the will’s forfeiture or no

contest clause and “the facts and circumstances of each particular


       1
      Because Solem’s trust provisions outlined the distribution
of his property after his death (see Am. Compl., Ex. 1), the
trust provisions should be interpreted in the same way as those
appearing in wills. See, e.g., Keener v. Keener, 682 S.E.2d 545,
548 (Va. 2009) (noting that where a testator relies on a trust
for the disposition of property after death, the same principles
of forfeiture and contestation that apply to wills apply to the
trust).
                                - 6 -

case.”   Va. Found. of Indep. Colls. v. Goodrich, 436 S.E.2d 418,

420 (Va. 1993) (emphasis in original) (internal quotation marks

omitted).   Generally, an action that would thwart the purpose of

the will constitutes a contest to its validity.    See Keener v.

Keener, 682 S.E.2d 545, 549 (Va. 2009).

     The amended complaint questions whether the Summary and

Memorandum amended Solem’s trust (see Am. Compl. ¶ 15 (“[T]he

central issue . . . is whether these two documents somehow amended

or revised the Living Trust[.]”) and seek an order declaring that

the living trust was not amended by the Summary and Memorandum.

(Id. ¶ 23.)   “In questions of trust interpretation, the ‘plain

language of the instrument controls a court’s inquiry.’”    In re

Rudwick, No. 01-633, 2002 WL 31730757, at *2 (Va. Cir. Ct. Dec. 5,

2002) (quoting NationsBank of Va., N.A. v. Estate of Grandy, 450

S.E.2d 140, 143 (Va. 1994)).    In his trust, Solem expressly

retained “the absolute right to amend or revoke [the] trust, in

whole or in part, at any time.”    (Am. Compl., Ex. 1 at 4-2 ¶ d.)

The trust states that “[a]ny amendment or revocation must be

delivered to [the] Trustee in writing.”    (Id.)   At the time Solem

executed the Summary and Memorandum, he was the Trustee.    (Id.,

Ex. 1 at 1-1.)    Thus, under the plain language of the trust

instrument, Solem only had to put in writing his amendments to

render them effective.   Solem wrote and signed both the Summary

and Memorandum.
                                - 7 -

     Although the plaintiffs’ brief claims that the plaintiffs “do

not question the validity of the Summary and Memorandum” (Pls.’

Opp’n to Def. Ray Solem Charitable Foundation’s Mot. to Dismiss

the First Am. Compl. at 6), the amended complaint nonetheless

seeks a judgment declaring that (1) the Living Trust was not

amended, (2) assets up to $2,000,000 should be distributed to

them, (3) they are trustees of the Foundation, (4) any assets

beyond $2,000,000 should be distributed to the Foundation, and (5)

the Foundation shall return $2,000,000 in assets to the living

trust.   (Am. Compl. ¶ 23.)   By requesting a judgment declaring

that the trust was never amended, the plaintiffs do not merely

seek an interpretation of the trust amendments, but they also seek

invalidation of the amendments.    Because the relief sought would

directly oppose the validity of the trust amendments –- an action

expressly prohibited by the trust’s no contest clause –- it

amounts to a trust contest.

     Under Virginia law, a person may file an action regarding the

validity of a trust up to two years after the settlor’s death or

six months after the trustee sent the party a copy of the trust

instrument.2   Va. Code Ann. § 55-546.04.   The plaintiffs filed

this action almost four years after Solem’s death and nearly two

years after Virginia’s statute of limitations ran.    The action,



     2
      The six-month provision does not apply here because the
record does not reflect that any trust instrument was formally
delivered to the plaintiffs.
                               - 8 -

therefore, is untimely.   Because there are no material facts in

dispute and the defendants are entitled to judgment as a matter of

law, the defendants’ motions to dismiss, treated as motions for

summary judgment, will be granted.

                             CONCLUSION

     Because the plaintiffs’ action contests the trust but was

filed beyond Virginia’s applicable two-year statute of limitations

for such an action, the defendants’ motions, treated as motions

for summary judgment, will be granted.    A separate Order

accompanies this Memorandum Opinion.

     SIGNED this 6th day of August, 2010.



                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge
