Adamson v. Norwest Bank Indiana, N.A. , 1994 Ind. App. LEXIS 473 ( 1994 )

STATON, Judge.

Isobel Adamson appeals an award of attorney fees in her breach of trust action, contending that the award of fees is inadequate.

We affirm.

In contravention of bank policy, a trust officer at Norwest Bank ("Bank") prepared a trust instrument for Thomas Adamson (Iso-bel's husband). The instrument provided that upon Thomas Adamson's death, the assets of his estate were to fund a trust; the Bank was named as the trustee. Later, Thomas Adamson died leaving a tool shop as his primary asset. Bank officials declined to become involved in the day-to-day operations of the tool shop under the terms of the trust, but it did offer to pay legal fees to terminate the trust.¹ Mrs. Adamson's attorney submitted to the Bank a bill for $12,736.05 which the Bank rejected.

Mrs. Adamson (individually and as the personal representative of the Estate of Thomas Adamson) filed a complaint against Norwest Bank alleging: negligence, the unauthorized practice of law (subsequently withdrawn), misrepresentation, breach of fiduciary duty pursuant to IND.CODE 30-4-3-11, tortious breach of contract (subsequently dismissed), promissory estoppel, constructive fraud, and legal malpractice. At trial, Mrs. Adamson moved to conform the pleadings to the evidence (to include a breach of contract claim based upon Bank's representation that it would pay Mrs. Adamson's attorney fees).

The jury returned a general verdict, awarding attorney fees in the amount of $11,-136.05. On the issue of punitive damages, the jury found in favor of Bank.

Mrs. Adamson contends that the judgment is inadequate as a matter of law because: I.C. 30-4-8-11(b)(4) and 1.C. 30-4-3-22(e) provide for the recovery of attorney fees where a breach of trust is established; in returning a general verdict, the jury found that a breach of trust occurred; and attorney John Peddycord testified that a reasonable fee for his services would range from $106,-000.00 to $120,000.00.

I.C. 30-4-8-22(a)(8) provides: "A beneficiary of a trust may maintain an action ... to compel the trustee to redress a breach of trust[.]" Subsection (e) provides: "If a beneficiary successfully maintains an action under subsection (a) of this section ... he is entitled to a judgment for reasonable attorney's fees."

IC. 30-4-3-1l(b)(4) provides: "If the trustee commits a breach of trust, he is liable to the beneficiary for reasonable attorney's fees incurred by the beneficiary in bringing an action on the breach."

A breach of trust is a violation by the trustee of any duty which as trustee he owes to the beneficiary. First Nat. Bank of Colorado Springs v. McGuire (7th Cir.1950), 184 F.2d 620, 625.

Mrs. Adamson alleged that a Bank employee encouraged the execution of inappropriate estate planning documents. Moreover, she alleged that a Bank representative promised to pay the legal fees necessary to administer the decedent's estate and terminate the improper trust. In reviewing a judgment entered upon a general verdict, we assume that the jury resolved both of these disputed issues in Mrs. Adamson's favor after hearing the relevant evidence. Chicago, I. & L. Ry. Co. v. Pritchard (1906), 168 Ind. 398, 417, 79 N.E. 508, reh. denied.

Adamson correctly argues that a general verdict is a finding in favor of the prevailing party on all of the material issues in the case. Bender v. Peay (1982), Ind.App., 433 N.E.2d 788, 790. Where the jury returns a general verdict in favor of the plaintiff, it necessarily finds that the averments necessary for recovery are established, but does not necessarily find that the plaintiff is entitled to the exact amount demanded. Township of Haddon School of Sullivan Co. v. Willis (1936), 209 Ind. 356, 360-61, 199 N.E. 251 (emphasis added).

LC. 30-4-3-11(b)(4) and I.C. 80-4-83-22(e) authorize the recovery of "reasonable" attorney fees necessary to redress a breach of trust. The instant breach of trust was redressed by the execution of appropriate probate documents; an action was initiated to compel payment for that service. Inasmuch as Mrs. Adamson established that a breach of trust occurred, she is entitled to recover reasonable attorney fees.

In reviewing an award of attorney fees, we do not reweigh the evidence presented at trial and substitute our judgment for that of the factfinder. Seibert v. Mock (1987), Ind.App., 510 N.E.2d 1373, 1378. Here, the jury heard extensive evidence concerning attorney feese-including evidence that Mrs. Adamson would have incurred certain attorney fees had no trust existed (e.g. preparation of her will). We will not second guess the jury's determination that $11,-136.05 (rather than $106,000.00) constitutes "reasonable" attorney fees for the execution of appropriate documents and related litigation in connection with an estate valued at $300,000.00.

The instant award of attorney fees is affirmed. We remand for a hearing on a reasonable amount to be awarded for appellate attorney fees.

CHEZEM, J., concurs. GARRARD, J., concurs in part and dissents in part with separate opinion.

1 . Both parties agreed that the closely-held business should not be managed under the terms of a trust instrument and that Isobel Adamson should be appointed the personal representative of her husband's estate. Supp.Record, p. 220.