                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                            March 25, 2016
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
GEORGE F. KLECAN,

      Plaintiff Counter
      Defendant - Appellant,

v.                                                         No. 15-2171
                                               (D.C. No. 1:15-CV-00016-WJ-KBM)
JANET SANTILLANES, as Trustee of the                        (D. N.M.)
Eugene E. Klecan and Jane F. Klecan
Revocable Trust dated March 11, 1999 as
Amended,

      Defendant Counter
      Plaintiff - Appellee.
                         _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before KELLY, PORFILIO, and BALDOCK, Circuit Judges.
                  _________________________________

      George F. Klecan filed this action against his sister, Janet Santillanes, who is

the Trustee of the Eugene E. Klecan and Jane F. Klecan Revocable Trust (“Trust”), a

conventional gift trust created by their parents. Mr. Klecan asserted breach-of-trust

claims and sought declarative and injunctive relief and damages. After the Trustee


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
moved for partial summary judgment, the court held that Mr. Klecan had, by his

conduct, absolutely forfeited his one-eighth share of the Trust property under the

express terms of the Trust. The court further held that its ruling on the forfeiture

issue necessarily dispensed with Mr. Klecan’s other claims, which the court

dismissed. The court then entered judgment disposing of the case in its entirety.

Mr. Klecan appeals the district court’s judgment. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I.    Background

      Mr. Klecan’s parents, Eugene and Jane Klecan (“Grantors”), created the Trust

in 1999 under New Mexico law. Grantors designated Ms. Santillanes to serve as

Trustee of the Trust after their deaths. The Trustee, Mr. Klecan, and their six

siblings are the named beneficiaries of the Trust, and each is entitled to receive a

one-eighth share of the Trust property. The primary asset in the Trust was an

apartment complex in Fort Worth, Texas, known as La Plaza Apartments, where

Mr. Klecan lived and worked as the apartment manager for 30 years.

      The Trust originally provided in § 8.1 for the formation, upon the death or

incapacity of the Grantors, of a Trust Advisory Committee (“TAC”) made up of all

eight beneficiaries. The Trust granted the TAC the power to direct the Trustee

regarding the sale of real property held in the Trust, with one exception: if

Mr. Klecan was residing in and managing La Plaza Apartments, he had the right to

veto any sale of the apartment complex for five years after the death of both

Grantors. In 2005, however, Grantors amended the Trust (the “Second

                                           2
Amendment”), limiting the TAC to three members: the Trustee and two of

Mr. Klecan’s other siblings. The Second Amendment also deleted the original

provision granting Mr. Klecan a five-year veto power over the sale of La Plaza

Apartments.

      The Trust includes what is commonly referred to as a no-contest provision.

Section 14.5 (“Contestability Clause”) provides as follows, in relevant part:

      14.5    Contestability
             A.      The beneficial provisions of this trust agreement . . . are
      intended to be in lieu of any other rights, claims, or interests of any nature,
      whether statutory or otherwise, except bonafide predeath debts, which any
      beneficiary of this trust may have against or in . . . the properties in this
      trust. Accordingly, if any beneficiary of this trust . . . asserts any claim
      whatsoever (except bonafide predeath debts), statutory election, or other
      right or interest against or in . . . any properties of this trust, other than
      pursuant to the express terms hereof . . ., directly or indirectly contests,
      disputes, or calls into question, before any tribunal, the validity of this
      instrument . . ., then such beneficiary shall thereby absolutely forfeit any
      beneficial interests which such beneficiary might otherwise have under this
      instrument . . . and the interests of the other beneficiaries hereunder shall
      thereupon be appropriately and proportionately increased. In addition, all
      of the provisions of this instrument, to the extent that they confer any
      benefits, powers, or rights upon such claiming, electing or contesting
      beneficiary, shall thereupon become absolutely void and revoked . . . .
              B.     Subparagraph A shall not apply to any beneficiary who
      (i) either contests this trust agreement . . . or institutes other proceedings
      relating to a governing instrument . . . if probable cause exists for instituting
      proceedings, (ii) participates solely as a witness in any proceeding
      involving a governing instrument . . . or (iii) appears in any capacity in any
      proceeding solely for the construction of a governing instrument.
Aplt. App., Vol. I at 48.

      The Trust was revocable in its entirety until Eugene Klecan died in February

2007. After Jane Klecan died in 2013, the TAC began efforts to sell La Plaza


                                             3
Apartments. The TAC hired the Trustee’s husband, Abraham Santillanes, to oversee

repairs and improvements at the apartment complex. The Grantors had previously

hired Mr. Santillanes to do similar work at other apartment properties. Because the

TAC believed that Mr. Klecan was interfering with the work needed to prepare

La Plaza Apartments to be sold, the Trustee terminated his position as apartment

manager and asked him to vacate the manager’s apartment and move to another

apartment in the complex. Mr. Klecan refused to move and, according to the Trustee,

interfered with the business of running the apartment complex. The Trustee caused

La Plaza Apartment Partnership (“Partnership”), an entity created to own La Plaza

Apartments, see id. at 143, to file an eviction proceeding against Mr. Klecan in Texas

state court (“Eviction Action”).

      Mr. Klecan filed an answer in the Eviction Action challenging the

Partnership’s standing to bring the action on the ground that the Second Amendment

to the Trust “had no legal effect because it sought to amend an irrevocable Trust B

controlling the La Plaza Apartments.” Id., Vol. III at 281. He maintained that,

“[b]ecause the Second Amendment had no legal effect, the only way to authorize

[his] eviction [was] a majority vote of the eight beneficiaries, including [Mr. Klecan],

constituting the ‘Trust Advisory Committee’ in Section 8.1 of the Trust.” Id. Thus,

Mr. Klecan contended in the Eviction Action that the Second Amendment was

invalid and that the original § 8.1 of the Trust, which provided for his five-year veto

power over the sale of La Plaza Apartments and his membership in the TAC,

remained in effect.

                                           4
       The Partnership prevailed in the Eviction Action. After Mr. Klecan appealed

that ruling, the parties settled the dispute when Mr. Klecan agreed to move into

another apartment at La Plaza Apartments.

       Following the sale of La Plaza Apartments for $2.9 million in 2014, the

Trustee prepared a proposed schedule of distribution for each beneficiary, setting

forth his or her one-eighth share of the Trust property minus any advances the

beneficiary had received. All beneficiaries but Mr. Klecan approved the distribution

schedules and signed releases of claims against the Trust. Upon signing a release, the

Trustee distributed to each beneficiary a one-eighth share of the proceeds from the

sale of La Plaza Apartments less an amount held in reserve for legal and other

expenses related to the claims that Mr. Klecan had asserted and threatened to assert.

       At the time of these distributions, the Trustee believed that, by his conduct,

Mr. Klecan had forfeited any beneficial right or interest in the Trust under the

Contestability Clause. The Trustee informed Mr. Klecan of her contention regarding

his forfeiture, but nonetheless provided him with a proposed distribution deducting

$70,000 in advances he had received on his one-eighth share, plus an additional

deduction for costs that Mr. Klecan had caused the Trust to incur, including the cost

of the Eviction Action. Mr. Klecan objected to this proposed distribution and refused

to sign a release of claims to obtain his distribution.

       Mr. Klecan instead filed this action against the Trustee, alleging that she had

breached her duties of good faith and loyalty by threatening his disinheritance;

refusing to unconditionally distribute his one-eighth share of the Trust property;

                                            5
distributing Trust shares to other beneficiaries but not to him; threatening him with

legal action; and engaging in self-dealing with other family members. Mr. Klecan

asked the district court to remove Ms. Santillanes as Trustee or, alternatively, to

order the Trustee to distribute his share of the Trust property, provide an accounting,

and stop holding Trust property in reserve for a legal defense fund. He also sought a

declaration that he had not triggered the Trust’s Contestability Clause. The Trustee

filed a counterclaim asking the district court to declare that Mr. Klecan had forfeited

his interest in the Trust, or alternatively, to declare the amount that the Trustee

should distribute to Mr. Klecan under the terms of the Trust.

      The Trustee moved for partial summary judgment, arguing that Mr. Klecan

had forfeited his share of the Trust assets under the terms of the Contestability Clause

by disputing the validity of the Trust or asserting a claim against properties of the

Trust. The district court held, based on the undisputed facts, that Mr. Klecan had

forfeited his inheritance under the Trust. It construed the Contestability Clause as

providing that a beneficiary’s one-eighth share of the Trust property is in lieu of any

other claim, right, or interest of any nature that a beneficiary might have against or in

the Trust property. The court reasoned that the Trust created an either/or option for a

beneficiary: he could accept his allotted one-eighth share and give up any and all

other claims, rights, or interests in the Trust property, or he could give up his

one-eighth share and pursue other claims. But a beneficiary “cannot have it both

ways.” Aplt. App., Vol. III at 376.



                                            6
       In holding that Mr. Klecan had forfeited his share of the Trust property, the

district court identified the following actions as triggering the Contestability Clause:

(1) Mr. Klecan challenged the validity of the Second Amendment to the Trust in the

Eviction Action; (2) he alleged willful misconduct, negligence, and breach of trust

against the Trustee in this action, seeking damages of at least $453,000, which is

more than his one-eighth share of the Trust; (3) he asserted other rights outside the

express terms of the Trust, such as a right to control or veto the sale of La Plaza

Apartments, essentially disputing the validity of the Second Amendment; and (4) he

contested the Grantors’ selection of Ms. Santillanes as the Trustee.

       Having decided the forfeiture issue in the Trustee’s favor and granted her

summary judgment on two of Mr. Klecan’s counts, the court dismissed the remainder

of his claims with prejudice. It then entered a final judgment disposing of the case in

its entirety.

II.    Discussion

       “We review the district court’s grant of summary judgment de novo, applying

the same standard employed by the district court.” Wetherill v. Bank IV Kansas,

N.A., 145 F.3d 1187, 1191 (10th Cir. 1998). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“[T]o defeat a summary judgment motion, the nonmovant must do more than simply

show that there is some metaphysical doubt as to the material facts.” Wetherill,

145 F.3d at 1191 (internal quotation marks omitted). “In applying this standard, we

                                            7
must examine the factual record and reasonable inferences therefrom in the light

most favorable to the non-moving/opposing party. If no dispute exists concerning a

genuine issue of material fact, we then determine whether the district court correctly

applied the substantive law.” Id. (citation and internal quotation marks omitted).

      A.     No-Contest Provisions Under New Mexico Law

      The New Mexico Supreme Court has stated that no-contest clauses “serve to

protect estates from costly and time-consuming litigation and they tend to minimize

family bickering over the competence and capacity of testators, and the various

amounts bequeathed.” Seymour v. Davis (In re Seymour), 600 P.2d 274, 278 (N.M.

1979).1 No-contest provisions “are valid and enforceable in New Mexico, but they

are not effective to disinherit a beneficiary who has contested a will in good faith and

with probable cause to believe that the will was invalid.” Id.

      Under New Mexico law, no-contest clauses are generally construed narrowly

and strictly against forfeiture. See Redman-Tafoya v. Armijo, 126 P.3d 1200, 1211

(N.M. Ct. App. 2005). But “the paramount rule” is still to ascertain and effectuate

the intent of the Grantor. See id. at 1211. “Whether there has been a ‘contest’ within

the meaning of a particular no-contest clause depends upon the circumstances of the

particular case and the language used.” Id. at 1212 (internal quotation marks and

alteration omitted).




      1
        The parties do not dispute that New Mexico case law concerning the
construction of no-contest clauses in wills also applies to no-contest clauses in trusts.
                                            8
       Under the no-contest clause at issue in Redman-Tafoya, a beneficiary forfeited

her share of the estate by contesting or attacking the will or any of its provisions “in

any manner.” Id. at 1202. The trial court broadly construed this provision, holding

that a beneficiary’s actions, including her refusal to cooperate with the personal

representative and certain claims that she filed in litigation, constituted attacks on the

validity of the will. See id. at 1205. In reversing these findings on appeal, the

appellate court set forth a “default construction for relatively general no-contest

clause language” like that found in the will in Redman-Tafoya. Id. at 1215. It said

that such clauses

       should be read as penalizing only beneficiaries who, in the absence of good
       faith and probable cause, seek through a legal proceeding to invalidate a
       will or to invalidate a provision of a will on grounds such as lack of
       testamentary capacity, fraud, undue influence, improper execution, forgery,
       or subsequent revocation by later document, or on grounds that effectively
       nullify a material provision in the will.
Id. at 1212. The court adopted this default construction to promote predictability

because “[l]egal proceedings to invalidate a will or to invalidate or nullify a

provision in a will are more easily recognizable than other conduct or actions that

might be perceived as thwarting some less clear or unexpressed intent of the

testator.” Id. at 1213. But the court stressed that “[a] testator is still free to disinherit

beneficiaries on any ground that does not violate public policy and that clearly and

specifically expresses what type of legal proceedings, or what type of other conduct

and actions, the testator intends to discourage through the threat of disinheritance.”

Id. at 1215.


                                             9
      Applying its default construction of the no-contest clause at issue in

Redman-Tafoya, the court held that none of the beneficiary’s conduct could be

considered a contest of or an attack on the will. Id. at 1214. It noted that she did not

“outright seek to invalidate the Will or to invalidate any provision of the Will.” Id. at

1211. More specifically, her lack of cooperation was not an attack on the will.

See id. at 1214. Nor did the claims she asserted in litigation trigger the no-contest

clause. She had filed a counterclaim in a quiet-title action seeking to disinherit other

beneficiaries, and she had attempted in the probate proceeding to remove the personal

representative. The court held that these claims were authorized by the will, rather

than an attack on the validity of any provision of the will. See id.

      Against this legal back-drop, Mr. Klecan argues that the district court erred in

holding that, by his conduct, he forfeited his share of the Trust under the

Contestability Clause. He asserts that he did not trigger that clause by defending the

Eviction Action or by bringing this action. He further argues that the district court

ignored subparagraph B of the Contestability Clause and New Mexico law, which

preclude a forfeiture if the beneficiary acted in good faith and with probable cause.

Mr. Klecan asks us to reverse the district court’s forfeiture ruling and remand with

instructions to determine his rights under the Trust and his claims against the Trustee.

      B.     By Asserting the Invalidity of the Second Amendment in the
             Eviction Action, Mr. Klecan Forfeited his One-Eighth Share of the
             Trust Property

      The Contestability Clause provides that a beneficiary “shall . . . absolutely

forfeit any beneficial interests which such beneficiary might otherwise have under

                                           10
this instrument” if he “directly or indirectly contests, disputes, or calls into question,

before any tribunal, the validity of this instrument.” Aplt. App., Vol. I at 48.

Mr. Klecan advances several theories why he did not trigger the Contestability

Clause when he asserted in the Eviction Action that the Second Amendment to the

Trust was invalid.

              1.     Mr. Klecan did not Institute Legal Proceedings

       Mr. Klecan maintains that, according to New Mexico law and under the

specific language of the Contestability Clause, a no-contest provision is only

triggered when the beneficiary institutes the legal proceedings in which he contests

the validity of a trust. Because he was the defendant in the Eviction Action, he

therefore contends that he did not forfeit his inheritance by asserting in that action

that the Second Amendment was invalid.

       Mr. Klecan first points to the holding in Redman-Tafoya that the beneficiary’s

counterclaim in a quiet-title action, by which she sought to disinherit other

beneficiaries, was not a “contest” under the no-contest clause in a will. See 126 P.3d

at 1214. We disagree that the holding in Redman-Tafoya supports the proposition

that Mr. Klecan asserts. The court held that the beneficiary’s disinheritance claim

did not trigger the no-contest clause because the claim was authorized under the will

and did not attack the validity of the will. See id. The court also emphasized that the

disinheritance claim “never approached adjudication” because the beneficiary did not

ultimately pursue that claim. Id. (“We hold that Tafoya’s short-lived and untested

disinheritance claim . . . do[es] not constitute [a] contest[].”). Thus, the court did not

                                            11
conclude, as Mr. Klecan asserts, that the beneficiary had not triggered the no-contest

clause because she was the counterclaimant, rather than the plaintiff, in the quiet-title

action.

       Here, Mr. Klecan admittedly did attack the validity of a provision of the Trust

in the Eviction Action by arguing that the Second Amendment was invalid because it

was executed after the Trust became irrevocable. Thus, unlike the petitioner in

Redman-Tafoya, and consistent with the language of the Contestability Clause, he

contested, disputed, and called into question the validity of an amendment to the

Trust before a tribunal. And Mr. Klecan has not argued or shown that his contention

was “untested” in the Eviction Action.

       Mr. Klecan alternatively argues that the language of the Contestability Clause

limits the type of “contest” that triggers a forfeiture to affirmative rather than

defensive actions by a beneficiary. He points to subparagraph B of the clause, which

provides an exception to the forfeiture language in subparagraph A under certain

circumstances. Subparagraph B provides, in relevant part, that “[s]ubparagraph A

shall not apply to any beneficiary who (i) either contests this trust agreement . . . or

institutes other proceedings relating to a governing instrument . . . if probable cause

exists for instituting proceedings.” Aplt. App. Vol. I at 48 (emphasis added). Based

on subparagraph B’s reference to “instituting proceedings,” Mr. Klecan argues that a

forfeiture can only occur under subparagraph A if the beneficiary instituted

proceedings to contest the validity of the Trust.



                                            12
       This contention ignores the language of subparagraph A, which is not so

limited. It provides that a beneficiary forfeits his interest in the Trust if he “directly

or indirectly contests, disputes, or calls into question, before any tribunal, the validity

of this instrument.” Aplt. App., Vol. I at 48. Although the Grantors here chose to

require that a contest be advanced “directly or indirectly . . . before any tribunal,”

they did not specify that, for forfeiture to result, the contesting beneficiary must be

the party who filed the action. In Redman-Tafoya, the court stated that “limited

proscriptions in a no-contest clause specifically describing conduct intended by the

testator to trigger disinheritance can be enforced.” 126 P.3d at 1213. We are not

persuaded that the language in subparagraph B has the limiting effect that Mr. Klecan

asserts on the forfeiture language Grantors chose to use in subparagraph A.

              2.     Mr. Klecan did not Seek to Expand his One-Eighth Share of
                     the Trust Property in the Eviction Action

       Mr. Klecan next claims that his defense in the Eviction Action did not trigger

the Contestability Clause because he did not seek to expand his one-eighth share of

the Trust property in that action. He maintains that the principal issues in that

action—whether he could avoid eviction and what rent he owed—were “largely

peripheral to the trust.” Aplt. Opening Br. at 14. But as Mr. Klecan acknowledges,

see id. at 13, the Contestability Clause is triggered by asserting certain claims against

the Trust property or by contesting the validity of the Trust instrument. His attempt

to invalidate the Second Amendment triggered the latter prohibition regardless of

whether he asserted a claim to expand his one-eighth share of the Trust property.


                                            13
              3.     Mr. Klecan did not Contest the Validity of the Original Trust
                     Instrument

       Mr. Klecan also contends that, because the Contestability Clause refers only to

challenges to the validity of “this instrument,” i.e., the Trust, and does not mention

later amendments, he did not trigger the clause by contesting the validity of the

Second Amendment in the Eviction Action. The Trustee argues, and Mr. Klecan

admits, that he did not make this argument in the district court.

       “An issue is preserved for appeal if a party alerts the district court to the issue

and seeks a ruling.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144,

1150 (10th Cir. 2012) (internal quotation marks omitted). We will reverse based on a

new issue raised for the first time on appeal only if the appellant satisfies the

plain-error standard of review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1130 (10th Cir. 2011). In a civil case, this burden is “extraordinary” and “nearly

insurmountable.” Id.

       Mr. Klecan fails to acknowledge the applicability of this review standard. In

his reply brief he argues that the Trustee has not shown any prejudice from his failure

to raise this contention in the district court; he urges us not to uphold the district

court’s ruling on the basis that he forfeited an argument; and he responds to the

Trustee’s argument why the Contestability Clause applies to amendments to the

Trust, disputing her reliance on a New Mexico statute and citing California case law.

Because Mr. Klecan fails to show “the presence of (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or


                                            14
public reputation of judicial proceedings” id. at 1128, we do not reach this

contention, see Somerlott, 686 F.3d at 1151-52 (declining to reach argument where

appellant did not carry her burden to demonstrate plain error).

             4.     Mr. Klecan’s Contention that he Challenged the Validity of
                    the Second Amendment in Good Faith and with Probable
                    Cause

      Lastly, Mr. Klecan argues that the district court ignored the probable-cause

exception to forfeiture in subparagraph B of the Contestability Clause, as well as the

good faith/probable-cause exception under New Mexico law, see Seymour, 600 P.2d

at 278 (holding no-contest provisions “are not effective to disinherit a beneficiary

who has contested a will in good faith and with probable cause to believe that the will

was invalid”); see also N.M. Stat. Ann. § 45-2-517 (codifying probable-cause

exception to no-contest provisions). Mr. Klecan argued in the district court that, by

relying on the advice of his counsel, he acted in good faith and with probable cause

in challenging the validity of the Second Amendment in the Eviction Action. The

district court noted his asserted reliance on counsel’s advice, but concluded that he

was nonetheless bound by his counsel’s challenge to the Second Amendment.

Mr. Klecan contends that the district court failed to address the merits of his claim of

good faith and probable cause.

      Mr. Klecan argues these issues raise questions of fact for the jury, citing

Hamel v. Hamel, 299 P.3d 278, 290 (Kan. 2013) (“Whether probable cause exists is a

question of fact.”); see also In re Estate of Gibbons, 451 S.W.3d 115, 122 (Tex. App.

2014) (“The trial evidence raised genuine fact issues regarding [good faith and

                                           15
probable cause], and the trial court did not err in submitting these issues to the

jury.”); Haley v. Pickelsimer, 134 S.E.2d 697, 701 (N.C. 1964) (noting lack of factual

determination whether a will contest was instituted in good faith and with probable

cause). We assume for purposes of his appeal argument that New Mexico courts

would likewise treat good faith and probable cause as questions of fact.

      Probable cause exists when “there was evidence that would lead a reasonable

person, properly informed and advised, to conclude that there was a substantial

likelihood that the challenge would be successful.” Restatement (Third) of Property

(Wills & Donative Transfers) (“Restatement”) § 8.5 cmt. c. To avoid summary

judgment, Mr. Klecan was required to come forward with evidence demonstrating a

genuine dispute whether he challenged the validity of the Second Amendment in the

Eviction Action in good faith and with probable cause.

      Mr. Klecan asserts that he has always acted in good faith and with probable

cause. Regarding his assertion in the Eviction Action that the Second Amendment

was invalid because it was executed after the Trust became irrevocable, he maintains

that he relied on his counsel’s advice and argues that he cannot be faulted for any

legal error. See Aplt. App., Vol. III at 331 (disclaiming his counsel’s legal argument,

while asserting that he was defending himself from an unlawful eviction and was

strictly following his counsel’s advice). Mr. Klecan fails, however, to point to any

evidence that would lead a reasonable person, who was properly informed and

advised, to conclude that his challenge to the Second Amendment on that basis would

be successful.

                                           16
       Mr. Klecan further avers that his counsel “may have had reason . . . to believe

that the Second Amendment to the Trust might be invalid possibly due to [his] father

Eugene Klecan having been diagnosed with Dementia and Alzheimer’s prior to

signing it.” Id. at 352. He does not say how “may,” “might,” and “possibly” add up

to probable cause. Mr. Klecan’s noncommittal statement fails to demonstrate that

either he or his counsel could have contested the Second Amendment in good faith

and with probable cause based on his father’s incapacity. Nor is there any indication

that he ever asserted this basis for challenging the validity of the Second Amendment

in the Eviction Action.

III.   Conclusion

       We agree with the district court’s declaration, based on an absence of disputed

fact issues, that Mr. Klecan forfeited his one-eighth share of the Trust property by

contesting the validity of the Second Amendment in the Eviction Action. We

therefore affirm the court’s grant of partial summary judgment to the Trustee without

addressing the Trustee’s other forfeiture contentions.2 Because Mr. Klecan does not




       2
        In addition to Mr. Klecan contesting the validity of the Second Amendment
in the Eviction Action, the Trustee argues that his other actions, including the claims
he raised in this action, also triggered a forfeiture under the Contestability Clause.
We need not and do not reach these contentions.
                                          17
challenge the district court’s dismissal of his remaining claims based on its forfeiture

ruling, we affirm the district court’s judgment disposing of the entire case.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




                                           18
