Maxwell R. Alberhasky v. George Rodney Alberhasky and Grayson H. Alberhasky

IN THE COURT OF APPEALS OF IOWA

No. 18-0927
Filed May 15, 2019

MAXWELL R. ALBERHASKY,
Plaintiff-Appellant,

vs.

GEORGE RODNEY ALBERHASKY,
Defendant-Appellee,

and

GRAYSON H. ALBERHASKY,
Intervenor-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Mary E. Howes,

Judge.

A son appeals the dismissal of the lawsuit against his father alleging breach

of fiduciary duties. REVERSED AND REMANDED.

Stephen C. Gerard II and Angela Boeke, Breckenridge, Colorado, for

appellant.

Kerry A. Finley and Stephen B. Jackson Sr. of Shuttleworth & Ingersoll,

PLC, Cedar Rapids, for appellee George Rodney Alberhasky.

Justin A. Teitle of Teitle Law Offices, P.C., Bettendorf, for appellee Grayson

H. Alberhasky.

Heard by Vogel, C.J., and Doyle and Tabor, JJ.
2

TABOR, Judge.

Maxwell Alberhasky sued his father, George Rodney Alberhasky, alleging

Rod breached his fiduciary duties as a trustee of assets transferred to Max by

Rod’s mother, Alois Alberhasky.1 The district court dismissed Max’s petition on

Rod’s motion. Because we must assume the petition’s well-pled facts to be true,

and because those facts reveal a conceivable route for Max to prove a right of

recovery, we find dismissal was premature. We reverse and remand for further

proceedings.

I. Facts and Prior Proceedings

This father-son dispute inhabits the intersection of a grandmother’s

generosity and an acrimonious divorce. The divorce litigation dates back to 1999,

when Rod petitioned to end his marriage to Angela Boeke. Together, Rod and

Angela had two sons—Max and Grayson.2 In 2000, the boys’ paternal

grandmother, Allie, established a revocable trust (Allie’s Trust) as part of her estate

planning. Allie named herself trustee and designated her son, Rod, and her

daughter, JoEllen, as successor trustees upon her incapacitation. Rod and

JoEllen assumed their roles as co-trustees of Allie’s Trust in 2009.

In 2010, Allie’s Trust enrolled in an Iowa Advisor 529 Plan3 with Max as the

named beneficiary, depositing $65,000 in trust assets into the account. The check

1
Because several individuals involved in this appeal share a surname, we refer to them
by first name for clarity’s sake. The petitioner is known as Max, his father is known as
Rod, and the grandmother is called Allie. Max’s brother, Grayson, is an intervenor.
2
According to Max’s brief: “Following the dissolution of marriage, Max chose to live
primarily with his mother while Grayson chose to live with his father.”
3
Iowa Code chapter 12D authorizes the establishment of so-called “529 plans,” named
after section 529 of the Internal Revenue Code. See 26 U.S.C. § 529 (2018). Individuals
and entities can establish 529 plans to fund a beneficiary’s college education while
benefitting from tax breaks on cash placed in the account. See Iowa Code §§ 12D.1, .9.
3

drawn from Allie’s Trust and deposited into the 529 plan was annotated: “FBO Max

Alberhasky.” Allie’s Trust likewise set up 529 plans with identical deposits for the

benefit of her other three grandchildren. Also as part of her estate planning, Allie

transferred her interest in a North Liberty farm to the Alberhasky Family LLC and

distributed shares to Rod, JoEllen, Max, Grayson, and JoEllen’s two children. Allie

gave these shares to her grandchildren through the Uniform Transfers to Minors

Act (UTMA).4

Allie died in 2011. In 2012, Rod modified the 529 plan initially naming Max

as the beneficiary to instead name Max’s younger brother Grayson as beneficiary.

In December 2013, Max sued Rod.5 The petition alleged these facts:

 Allie “made regular annual monetary gifts to each of her grandchildren.”
 Allie “also funded 529 College Savings Plans for each of her grandchildren
in equal amounts specifically to provide for her grandchildren’s future
education.”
 Rod “has acted as a trustee of various assets and funds” belonging to Max,
held under the UTMA.6
 Rod “also acted as co-trustee of the 529 College Savings Plan” established
for Max’s benefit by Allie’s Trust.
 The district court presiding over the divorce proceedings removed Rod as
trustee of Max’s UTMA assets and 529 plan.
 The court subsequently appointed USBank as successor trustee of Max’s
UTMA funds.
 Max received the UTMA assets held by the USBank trust department in
November 2013.
Based on these facts, the petition contended Rod owed Max fiduciary duties

in handling both the 529 plan and UTMA funds, and Rod breached those fiduciary

4
In their pleadings and briefs, the parties refer interchangeably to assets under the UTMA
and UGMA (Uniform Gifts to Minors Act, the former title of the uniform act). Because
chapter 565B is called “the Iowa Uniform Transfers to Minors Act” (Iowa Code § 565B.25
(2013)) and for the sake of consistency, we use the acronym UTMA in this opinion.
5
Max’s petition originally included claims against his aunt, JoEllen. Before the hearing on
the motion to dismiss, Max dismissed his allegations against JoEllen.
6
While Max’s petition uses the term “trustee,” the UTMA refers to the individual controlling
the UTMA property as a “custodian.” See Iowa Code §§ 565B.1(7), .12(1)–(5).
4

duties.7 The petition sought three remedies: (1) an accounting of the UTMA assets

held for Max, (2) a voiding of the transaction transferring the beneficiary

designation of the 529 account from Max to Grayson, and (3) damages stemming

from Rod’s alleged breach of fiduciary duties.

In February 2014, Rod moved to dismiss Max’s suit for failure to state a

claim upon which relief can be granted. Rod argued the 529 plan was not subject

to the Iowa Trust Code (Iowa Code chapter 633A) and Max lacked standing to

challenge any change in beneficiary designation of the 529 plan because plan

owners are authorized to change beneficiaries as they see fit. See Iowa Code

§ 12D.3(3)(a)–(b). Rod further asserted the UTMA assets were not governed by

the trust code, but he agreed to provide an accounting of the UTMA funds.

Grayson moved to intervene, alleging he had “a direct financial interest in

the outcome of these proceedings.” The court granted Grayson’s motion.8

7
The petition set out these allegations focused on the breach of fiduciary duties:
1. [Max] believes [Rod] has breached his fiduciary duties as trustee
of Maxwell’s UTMA funds and assets as required by Iowa Code Section
633A.4202(1).
2. Specifically, but not limited to, [Max] believes that [Rod] has
liquidated [Max]’s interest in an entity known as Alberhasky Family LLC for
less than the true value of his interest.
3. Further, [Max] believes that [Rod] has caused him to incur
Federal Income Tax liability as a result of the liquidation of his interest in
Alberhasky Family LLC which was paid by [Rod] from [Max]’s other U[T]MA
funds to [Max]’s detriment.
4. [Rod] breached his fiduciary responsibility to [Max] by transferring
the 529 College Savings Plan funds held for the benefit of [Max] to [Max]’s
brother Grayson.
5. Further acts of breach of fiduciary duty may be disclosed by the
accounting sought herein.
6. [Rod] acted with bad faith and malice toward [Max] in his fiduciary
acts.
7. [Rod] should be required to restore the 529 College Savings Plan
and trust corpus diminished by his conduct from his own assets.
8
For brevity’s sake, we will refer to Rod’s arguments when discussing the positions taken
by both Rod and Grayson in this litigation.
5

The district court held a hearing on Rod’s motion to dismiss. Rod offered

the testimony of two experts on 529 plans—financial advisor Robert Milbrath and

attorney Robert N. Downer. Rod additionally submitted a number of exhibits

relating to Allie’s Trust and the 529 accounts.9

Following the hearing, the district court granted the motion to dismiss. On

the UTMA assets, the court concluded: “[T]he Iowa Trust Code does not apply to

the UTMA account and the UTMA account was closed with funds distributed to the

petitioner in 2012.” In dismissing Max’s claim relating to the 529 plan, the court

found Max had “no standing” to challenge how the account was controlled by the

owner. The court also found no authority to support the proposition that a 529

account is subject to the trust code.

Max appeals, arguing the district court erred in holding an evidentiary

hearing on the motion to dismiss and misapplied legal standards in dismissing his

claims. Because Max’s petition satisfies Iowa’s liberal notice-pleading standards,

we reverse the district court’s grant of Rod’s motion to dismiss for failure to state

a claim upon which relief can be granted.

II. Scope and Standard of Review

We review the grant of a motion to dismiss for correction of errors at law.

Turner v. Iowa State Bank & Tr. Co., 743 N.W.2d 1, 2–3 (Iowa 2007). Dismissal

is appropriate if the petitioner “fails to state a claim upon which any relief may be

9
Max’s attorney reacted to the offer of evidence as follows:
This hearing is a Motion to Dismiss. . . . It’s not an evidentiary hearing. It’s
a legal issue to submit to the court based upon the pleading itself. So while,
I guess, I don’t want to object to the exhibits because I think sooner or later
it’s going to be good to have all of these things, I don’t think exhibits can be
used to support a motion to dismiss.
6

granted.” Id. at 2 (citing Iowa R. Civ. P. 1.421(1)(f)). A motion to dismiss tests “the

legal sufficiency of the petition.” Id. at 3 (citing Berger v. Gen. United Grp., Inc.,

268 N.W.2d 630, 634 (Iowa 1978)). We view the petition in the light most favorable

to Max, resolving any doubts in his favor. See Rees v. City of Shenandoah, 682

N.W.2d 77, 79 (Iowa 2004).

III. Analysis

A. Did the district court treat Rod’s motion as a request for summary
judgment?

Rod argues the evidence considered and standard employed by the district

court are of no consequence, because “[w]hen a district court considers additional

matters outside the pleadings, the reviewing court may treat a motion to dismiss

as a motion for summary judgment.” Rod’s argument overstates when a court may

consider substance over form and treat a motion that, in name, seeks dismissal on

the pleadings, but in content, reveals a motion for summary judgment. See In re

Marriage of Glade, 501 N.W.2d 563, 565 (Iowa Ct. App. 1993).

The district court’s decision to allow expert testimony on the underlying legal

issues did not transform Rod’s motion to dismiss into a motion for summary

judgment.10 Rod’s motion, supporting briefs, and the hearing explored this

question: did Max’s petition state a cognizable claim for recovery under the trust

code?11 The parties did not debate the existence of a genuine dispute of material

fact. See Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 566 (Iowa 2018)

10
Because our holding rests on the district court’s misapplication of the law in granting
Rod’s motion to dismiss, we need not decide the propriety of hearing expert testimony
before deciding whether to dismiss based on the petition’s failure to state a claim upon
which any relief may be granted or whether Max preserved error on his objection to that
procedure.
11
On appeal Rod does not assert the absence of a genuine issue of material fact.
7

(discussing difference between motion on pleadings and standards for summary

judgment). We conclude it would be inappropriate to treat the court’s dismissal on

the pleadings as a grant of summary judgment in Rod’s favor. See id.

Because we cannot interpret the litigation in the district court as summary-

judgment proceedings by another name, we turn to Max’s petition.

B. Does Max’s petition state claims upon which relief can be
granted?

Max argues the district court wrongly dismissed his petition. He contends

the petition was not required to identify a specific legal theory but could go forward

if its factual allegations gave Rod “fair notice” of the events giving rise to the claim.

Case law supports his contention a motion to dismiss should only be granted if the

petition on its face shows no right of recovery under any set of facts. Belk v. State,

905 N.W.2d 185, 188 (Iowa 2017). Under notice pleading, almost every case

survives a motion to dismiss. Rees, 682 N.W.2d at 79.

Iowa’s notice-pleading rules encourage courts to determine controversies

on their merits. Iowa R. Civ. P. 1.402(1). A pleading meets the notice requirement

if it contains “a short and plain statement of the claim showing that the pleader is

entitled to relief and a demand for judgment for the type of relief sought.” Iowa R.

Civ. P. 1.403(1). With these principles in mind, we turn to the particulars of Max’s

petition.

1. Max’s claim concerning the 529 plan. The petition alerted Rod to Max’s

factual assertions that Allie funded college savings plans for each of her

grandchildren in equal amounts and Rod acted as a trustee of the 529 plan

established for Max’s benefit by Allie’s Trust. The complaint alleged Rod breached
8

his fiduciary duty to Max by transferring to Grayson the funds in Max’s 529 plan,

which were deposited by Allie’s Trust.

In his motion to dismiss, Rod argued the 529 plan was not subject to Iowa

Code chapter 633A, and the owner of such an account could change the

beneficiaries, so no relief could be granted on this claim. The district court

accepted that argument, reasoning Iowa Code chapter 633A was inapplicable

because chapter 12D governed 529 plans.12

To bolster the district court’s conclusion, Rod quotes secondary sources

explaining the lack of fiduciary duties connected with ownership of 529 plans. For

example:

[T]he account owner of a section 529 savings account has no
fiduciary duties to the beneficiary of the account. Thus the account
owner could change the beneficiary or withdraw the funds himself or
herself and the beneficiary would have no grounds for complaint,
even if the account owner’s actions clearly violated the donor’s intent.

Susan T. Bart, The Best of Both Worlds: Using a Trust to Make Your 529 Savings

Accounts Rock, 34 ACTEC J. 106, 106 (2008).

But Rod overlooks passages in those same articles discussing the effects

of enveloping a 529 plan within a trust. Such as:

A trust-owned 529 account may be the only mechanism to ensure
that the donor’s wishes are carried out. If a trust is the account
owner, the trustee is bound by the terms of the trust and has a
fiduciary duty to the trust beneficiaries.

12
Iowa Code section 12D.3 provides, in pertinent part:
a. A beneficiary under a participation agreement may be changed
as permitted under rules adopted by the treasurer of state upon written
request of the participant as long as the substitute beneficiary is eligible for
participation.
b. Participation agreements may otherwise be freely amended
throughout their terms in order to enable participants to increase or
decrease the level of participation, change the designation of beneficiaries,
and carry out similar matters as authorized by rule.
9

....
When the primary objective is to fund a section 529 savings
account, placing a trust wrapper around the section 529 savings
account can restrain within fiduciary confines some of the
tremendous flexibility permitted under Code section 529.

Id. at 107.13

The district court did not consider the possibility that an investment could

be both governed by chapter 12D and subject to the trust code. As a result, the

district court’s legal analysis stopped short of examining Iowa Code section

633A.4202, which describes the fiduciary duties of trustees:

(1) A trustee shall administer the trust solely in the interest of
the beneficiaries, and shall act with due regard to their respective
interests.
(2) Any transaction involving the trust which is affected by a
material conflict between the trustee’s fiduciary and personal
interests is voidable by a beneficiary affected by the transaction
unless one of the following applies:
a. The transaction was expressly authorized by the terms of
the trust.
b. The beneficiary consented to or affirmed the transaction or
released the trustee from liability as provided in section 633A.4506.
c. The transaction is approved by the court after notice to
interested persons.
(3) A transaction affected by a material conflict between
personal and fiduciary interests includes any sale, encumbrance, or
other transaction involving the trust property entered into by the
trustee, the spouse, descendant, agent, or attorney of a trustee, or

13
Estate-planning expert Bart has written extensively about the opportunity for trusts to
invest assets in 529 accounts, explaining:
The trustee would open the [529 plan] with cash already in the trust, with
the trust as the account owner and the trust beneficiary as the [529 plan]
beneficiary. The trustee could direct a qualified distribution to the
beneficiary, change the beneficiary (presumably under the trust terms only
to another beneficiary of the trust), or direct a nonqualified distribution back
to the trust.
Susan T. Bart, Planning for College Using Section 529 Savings Accounts, 16 Prac. Tax
Law. 37, 45 (2002). In her scholarship, Bart makes clear the trustee, as the account
owner, would have the power to change the beneficiary of a section 529 account only
subject to the terms of the trust. See, e.g., Susan T. Bart, No Taxpayer Left Behind: Tax-
Wise Techniques for Funding Education, in 1 Planning Techniques for Large Estates 173,
250 (ALI-ABA Course of Study, Apr. 23–27, 2012), Westlaw ST041 ALI-CLE 173.
10

corporation or other enterprise in which the trustee has a substantial
beneficial interest.

Max’s petition alleges Allie deposited funds into a 529 plan for Max’s benefit

with the intent to create a trust to fund his college education. The definitions in

section 633A.1102 do not expressly exclude such an investment from the trust

code. Any kind of property may be transferred and conveyed by the owner to a

trustee to be held by the trustee for the use or benefit of others. See Haulman v.

Haulman, 145 N.W. 930, 933 (Iowa 1914); see also Iowa Code § 633A.1104

(explaining common law of trusts may supplement the trust code). Nor does

chapter 12D place all 529 plans outside the reach of the trust code. Cf. Iowa Code

§ 565B.24 (“Chapter 633 and all other laws of this state to the extent contrary to

this chapter do not apply to the custodial property of a minor held by the custodian

under this chapter.”). While section 12D.3 enables an individual account owner to

change the beneficiary designation, such freedom does not automatically supplant

fiduciary duties imposed on a trustee in managing a trust-owned 529 plan.

After reviewing the substantive law on trusts and 529 plans, we find Max’s

petition was legally sufficient to survive a motion to dismiss. The applicability of

chapter 633A depends upon whether Allie created a trust for Max by investing in

the 529 plan as Max alleged in his petition. Whether Allie created a trust for Max’s

benefit and under what terms are questions of fact. See Butler v. Butler, 114

N.W.2d 595, 612 (Iowa 1962) (“Whether a trust has been perfectly created is

largely a question of fact in each case, and the court in determining the fact will

give efficacy to the situation and relation of the parties, the nature and situation of

the [property], and the purpose and objects which the settlor had in view.” (quoting
11

1 Perry on Trusts and Trustees 124 (7th ed. 1929))). Assuming—as we must—

the truth of Max’s factual allegations, the funds in the 529 plan were held in trust

for Max. And if Rod, acting as trustee, depleted those funds out of animus toward

Max, that action could constitute a breach of fiduciary duty under

section 633A.4202, entitling Max to relief. The district court should not have

dismissed Max’s claims for breach of fiduciary duty relating to the 529 plan. See

Iowa R. Civ. P. 1.403(1).14

2. Max’s claim concerning the UTMA assets. The district court found “no

law” to support Max’s claim the trust code applied to the UTMA account

established by Allie and managed by Rod. The court decided Rod’s “obligations

for the UTMA account were limited to those obligations set forth in Iowa Code

chapter 565B. Those include to invest under the prudent person standard and

keep the UTMA asset separate and distinct from his personal assets and keep

records.” In dismissing this claim, the court noted Max had offered “no allegations

or proof” Rod “behaved to the contrary.” 15

14
To the extent Rod argues Max lacked standing to challenge the change of beneficiary
designation, our conclusion 529 plans are not excluded from application of the trust code
is dispositive. Taking the petition’s allegations as true, Max, as beneficiary, has standing
to challenge Rod’s management of the plan. See Iowa Code § 633A.1102(2) (“Beneficiary
. . . includes a person who has any present or future interest in the trust, vested or
contingent, and also includes the owner of an interest by assignment or other transfer.”);
§ 633A.6202(1) (“[A] trustee or beneficiary of a trust may petition the court concerning the
internal affairs of the trust or to determine the existence of the trust.”); see also In re
Kenneth L. Grandquist Revocable Tr., No. 03-1688, 2005 WL 1962554, at *2 (Iowa Ct.
App. Aug. 17, 2005). Additionally, we note a logical inconsistency between the court’s
conclusion Grayson had standing to intervene and Rod’s argument Max lacked standing
to challenge the transfer.
15
Contrary to the district court’s language, Max was not required to prove his allegations
at this stage of the proceedings. See Turner, 743 N.W.2d at 4 (“In a motion to dismiss
based on the plaintiff’s failure to state a claim upon which any relief may be granted, the
court can only consider the well-pled facts, not the factual allegations contained in the
motion or the documents attached to the motion.” (citing Berger, 268 N.W.2d at 634)).
12

It is true the trust code excludes “custodial arrangement(s) pursuant to the

uniform transfers to minors Act of any state” from the definition of trust. Iowa Code

§ 633A.1102(18)(b). But on appeal Max does not argue chapter 633A paves his

path to recovery as to the UTMA funds. Instead, Max contends his breach-of-

fiduciary-duty allegation alerted Rod to the incident giving rise to and general

nature of Max’s claim. Max argues: “Certainly Rod and Grayson would not be

surprised if Max sought to amend his petition to allege a violation of the standards

of conduct for a custodian of a UTMA asset . . . .” Max points to the principle a

party need not identify a specific legal theory to withstand a motion to dismiss on

the pleadings. See Cemen Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d 1, 12

(Iowa 2008).

In response, Rod cites Peterson v. Bottomley, 582 N.W.2d 187, 188–89

(Iowa 1998), arguing because Max’s petition did identify a legal theory by citing the

trust code, Max is confined to that theory. In Peterson, the supreme court

concluded the district court erred in finding the defendants liable for a statutory

violation after a bench trial because the plaintiff only asserted common law theories

of recovery. 582 N.W.2d at 189.

But the present case differs from Peterson in a vital respect: the stage of

the proceedings. Here, the litigation is in its infancy. Not so in Peterson, where

the district court sua sponte injected a statutory theory after both parties presented

their cases. Cf. id. (“[W]e believe the Bottomleys were prejudiced by not having

been put on notice that a statutory violation was being asserted.”). Max has not

yet engaged in discovery, which may permit him to narrow the issues and develop

viable theories of recovery. See U.S. Bank v. Barbour, 770 N.W.2d 350, 354 (Iowa
13

2009); see also Lamantia v. Sojka, 298 N.W.2d 245, 247 (Iowa 1980) (“[R]elevant

facts may be determined by discovery; issues may be narrowed by discovery,

pretrial conference, or by partial summary judgment; and summary judgment

provides an expeditious means of disposing of sham claims.” (citation omitted)).

A petition must allege facts giving “fair notice” of the plaintiff’s claim to allow

the defendant to adequately respond to the allegations. U.S. Bank, 770 N.W.2d

at 354 (quoting Rees, 682 N.W.2d at 79). “The ‘fair notice’ requirement is met if a

petition informs the defendant of the incident giving rise to the claim and of the

claim’s general nature.” Id. (citing Soike v. Evan Matthews & Co., 302 N.W.2d

841, 842 (Iowa 1981)).

We conclude Max’s petition adequately alerted Rod that Max was seeking

damages for Rod’s alleged bad-faith liquidation of Max’s shares of Alberhasky

Family LLC. See Lamantia, 298 N.W.2d at 247 (“The appellees’ contention that

one theory rather than another is evident in the pleading misses the point of [the

notice-pleading rule]: if the prima facie elements of the claim are stated, and this

statement is fair notice to a defendant, the petition is sufficient.”); see also Gosha

v. Woller, 288 N.W.2d 329, 331–32 (Iowa 1980) (“Such a disposition would be

harsh under the circumstances here because it would unduly punish the plaintiffs

for their express specificity in their pleading, contrary to the spirit and intent of

notice pleading.”).

The district court jumped the gun by concluding Max failed to state a claim

as far as Rod’s mishandling of the UTMA funds. “A court should grant a motion to

dismiss only if the petition ‘on its face shows no right of recovery under any state

of facts.’” U.S. Bank, 770 N.W.2d at 354 (quoting Trobaugh v. Sondag, 668
14

N.W.2d 577, 580 (Iowa 2003)). Iowa Code section 565B.12(2) requires a

custodian holding property under the UTMA to “observe the standard of care that

would be observed by a prudent person dealing with property of another.” We

cannot say at this early stage if Max would be entitled to recover on his claim Rod

maliciously and untimely liquidated Max’s Alberhasky Family LLC shares.

In Cutler v. Klass, Whicher, & Mishne, 473 N.W.2d 178, 181 (Iowa 1991),

Justice Harris mused:

We recognize the temptation is strong for a defendant to strike a
vulnerable petition at the earliest opportunity. Experience has
however taught us that vast judicial resources could be saved with
the exercise of more professional patience. Under [the applicable
rules] dismissals of many of the weakest cases must be reversed on
appeal. Two appeals often result where one would have sufficed had
the defense moved by way of summary judgment, or even by way of
defense at trial. From a defendant’s standpoint, moreover, it is far
from unknown for the flimsiest of cases to gain strength when its
dismissal is reversed on appeal.

Those words play out in this case. Max’s petition was adequate on its face to

withstand the impatience of Rod’s motion to dismiss. We reverse the dismissal of

Max’s petition and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.