In re Conservatorship of Abbott , 295 Neb. 510 ( 2017 )


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    IN RE CONSERVATORSHIP OF ABBOTT
    Cite as 
    295 Neb. 510
    In   re   Conservatorship       of   M arcia G. A bbott,
    a protected person.
    Cynthia J. Sellon and Russell G. A bbott, appellees and
    cross-appellants, v. M ark D. A bbott, Conservator,
    appellant and cross-appellee.
    In re A bbott Living Trust.
    Cynthia J. Sellon and Russell G. A bbott, appellees
    and cross-appellants, v. M ark D. A bbott,
    Designated Successor Trustee, appellant
    and cross-appellee.
    ___ N.W.2d ___
    Filed January 13, 2017.   Nos. S-15-967, S-16-040.
    1.	 Guardians and Conservators: Appeal and Error. An appellate court
    reviews conservatorship proceedings for error appearing on the record in
    the county court.
    2.	 Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    3.	 Trusts: Equity: Appeal and Error. Appeals involving the administra-
    tion of a trust are equity matters and are reviewable in an appellate court
    de novo on the record.
    4.	 Attorney Fees: Appeal and Error. A trial court’s decision award-
    ing or denying attorney fees will be upheld on appeal absent an abuse
    of discretion.
    5.	 Standing: Words and Phrases. Standing involves a real interest in the
    cause of action, meaning some legal or equitable right, title, or interest
    in the subject matter of the controversy.
    6.	 Trusts. Neb. Rev. Stat. § 30-3855 (Reissue 2016) does not dictate who
    may petition for the removal of a trustee, but, rather, describes to whom
    fiduciary duties are owed.
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    7.	 Trusts: Standing. Generally, standing in a trustee removal proceeding is
    governed by Neb. Rev. Stat. § 30-3862(a) (Reissue 2016).
    8.	 Trusts. A serious breach of a fiduciary duty is only one of the grounds
    for removal of a trustee.
    9.	 Trusts: Intent. The extent of the beneficiary’s interest in a trust
    depends upon the discretionary power that the settlor intended to grant
    the trustee.
    10.	 ____: ____. When the parties do not claim that the terms are unclear or
    contrary to the settlor’s actual intent, the interpretation of a trust’s terms
    is a question of law.
    11.	 Trusts. In general, trustees of support trusts have discretion to determine
    what is needed for the beneficiary’s support and to make payments only
    for that purpose.
    12.	 ____. The discretion afforded to a trustee of a support trust does not
    preclude a beneficiary from seeking to show that the trustee has abused
    its discretion in failing to make support payments.
    13.	 Trusts: Liability. A trustee is liable for the action of another trustee if
    he joins in the action, fails to prevent the cotrustee from committing a
    serious breach of trust, or fails to compel the cotrustee to redress a seri-
    ous breach of trust.
    14.	 Trusts. A trustee has the duty to administer the trust in good faith, in
    accordance with its terms and purposes and the interests of the benefi-
    ciaries, and in accordance with the Nebraska Uniform Trust Code.
    15.	 ____. The Nebraska Uniform Trust Code states that trustees owe the
    beneficiaries of a trust duties that include loyalty, impartiality, prudent
    administration, protection of trust property, proper recordkeeping, and
    informing and reporting.
    16.	 Trusts: Conflict of Interest. A cause for removal of a trustee is appro-
    priate for the best interests of the trust estate where hostile relations
    exist between a trustee and beneficiaries of such a nature as to interfere
    with proper execution of the trust, particularly where it appears that the
    trustee’s personal interests conflict with, or are antagonistic to, his or her
    duties as trustee under the terms of the trust.
    17.	 Pleadings. The issues in a given case will be limited to those which
    are pled.
    18.	 Rules of the Supreme Court: Pleadings: Notice. The Nebraska Rules
    of Pleading in Civil Actions, like the federal rules, have a liberal plead-
    ing requirement for both causes of action and affirmative defenses, but
    the touchstone is whether fair notice was provided.
    19.	 Trusts: Words and Phrases. Impartiality means that a trustee’s treat-
    ment of beneficiaries or conduct in administering a trust is not to be
    influenced by the trustee’s personal favoritism or animosity toward indi-
    vidual beneficiaries.
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    20.	 Trusts. A finding of one serious breach of fiduciary duty is enough to
    warrant removal of a trustee.
    21.	 Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    22.	 Attorney Fees: Appeal and Error. On appeal, a trial court’s deci-
    sion awarding or denying attorney fees will be upheld absent an abuse
    of discretion.
    23.	 Judgments: Words and Phrases. A judicial abuse of discretion
    requires that the reasons or rulings of the trial court be clearly unten-
    able insofar as they unfairly deprive a litigant of a substantial right and
    a just result.
    24.	 Trial: Evidence: Appeal and Error. In a civil case, the admission or
    exclusion of evidence is not reversible error unless it unfairly prejudiced
    a substantial right of the complaining party.
    25.	 Final Orders: Appeal and Error. An order affects a substantial right
    if the order affects the subject matter of the litigation, such as diminish-
    ing a claim or defense that the appellant had before the court entered
    the order.
    Appeals from the County Court for Douglas County:
    Lawrence E. Barrett, Judge. Appeal in No. S-15-967 dis-
    missed. Judgment and final order in No. S-16-040 affirmed.
    Michael F. Coyle, Elizabeth A. Culhane, and Jacqueline M.
    DeLuca, of Fraser Stryker, P.C., L.L.O., and G. Rosanna Moore
    and, on brief, John K. Green, of Pickens & Greene, L.L.P.,
    for appellant.
    John M. Lingelbach, James A. Tews, and Minja Herian, of
    Koley Jessen, P.C., L.L.O., for appellees.
    H eavican, C.J., Wright, Cassel, Stacy, K elch, and
    Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    We decide two consolidated appeals from county court
    proceedings—the first from a final order appointing a con-
    servator and the second from a county court order that acted
    both as a judgment in a trustee removal proceeding and as
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    a final order denying fees and expenses in the conservator-
    ship proceeding.
    Because the conservatorship appointment order became
    moot upon the protected person’s death while the first appeal
    was pending, we dismiss the first appeal in its entirety and
    dismiss the cross-appeal to the extent that it pertains to the
    first appeal.
    In the second appeal, a successor trustee appeals and two
    beneficiaries cross-appeal from an order removing the succes-
    sor trustee, declining to surcharge him, disposing of compet-
    ing attorney fee applications, and otherwise disposing of the
    trust and conservatorship proceedings. Applying our respec-
    tive standards of review to the remaining trust and conserva-
    torship issues, we affirm.
    II. BACKGROUND
    These consolidated appeals arise from proceedings initi-
    ated by Russell G. Abbott and Cynthia J. Sellon (Cynthia) to
    appoint a conservator for their mother, Marcia G. Abbott, and
    to remove Marcia as trustee of the “Abbott Living Trust”; to
    remove their brother, Mark D. Abbott, as successor trustee;
    to surcharge Mark; and for an accounting. Marcia resigned as
    trustee before trial, and the county court dismissed the claim
    seeking to remove her as moot.
    Prior to oral argument, a suggestion of Marcia’s death
    was filed in this court, accompanied by a motion to remand
    the conservatorship proceeding with directions to vacate and
    dismiss. At oral argument, we granted leave to file a written
    response, which we have considered. Marcia’s death renders
    moot the issue of the appointment of her conservator, but it
    does not abate the cause of action.1 Accordingly, we do not
    summarize the facts surrounding the appointment of a conser-
    vator, and recite only the facts relating to issues not mooted by
    Marcia’s death.
    1
    See In re Conservatorship of Franke, 
    292 Neb. 912
    , 
    875 N.W.2d 408
          (2016).
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    1. A bbott Living Trust
    Agreement
    Marcia and her husband created a revocable living trust in
    which they named themselves cotrustees. When Marcia’s hus-
    band died, the living trust assets were divided between a revo-
    cable “Survivor’s Trust” and an irrevocable “Family Trust.”
    The two trusts primarily consist of investment accounts.
    The trust agreement provided that Marcia, as the sur-
    viving spouse, was entitled to the entire net income from
    the Survivor’s Trust account. It also permitted her to with-
    draw from the principal of the Survivor’s Trust as much as
    she desired.
    As to the Family Trust, Marcia had four primary rights
    or interests. First, she was entitled to the entire net income.
    Second, she had a “five-and-five power,” which limited her
    to annually withdrawing the greater of $5,000 or 5 percent of
    the assets from the principal. Third, the trustee could apply
    an “ascertainable standard.” That power permitted the trustee,
    in his or her discretion, to pay Marcia or her and her hus-
    band’s shared descendants—Russell, Mark, and Cynthia—so
    much of the principal as the trustee deemed proper for their
    health, maintenance, support, and education. Finally, she had
    a “sprinkling” testamentary power of appointment—that is, a
    limited power allowing her to dispose of Family Trust assets
    by will or by a living trust. With this limited power, Marcia
    could appoint “some or all of the principal and any accrued but
    undistributed net income of the Family Trust as it exist[ed] at
    the death of [Marcia]” to Russell, Mark, or Cynthia in “equal
    or unequal amounts.” There is no evidence that Marcia ever
    exercised this limited power of appointment.
    2. M arcia’s Stroke
    In 2011, Marcia suffered a stroke that left her paralyzed
    on her right side. She had difficulty with speech and com-
    munication and was ultimately diagnosed with expressive
    aphasia—a disorder that affects the brain’s ability to use and
    understand language. Prior to her stroke, Marcia lived at home
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    and handled her own financial affairs, including management
    of the two trusts. After her stroke, Marcia needed assisted liv-
    ing and physical therapy and moved into a skilled-care facility.
    As a necessary result, Marcia’s monthly living expenses grew
    from $500 to over $8,000. Since 2011, Mark has acted as
    Marcia’s agent under a power of attorney.
    3. M ark’s M anagement
    of Trust Assets
    In 2011, after her stroke, Marcia “resigned” as trustee over
    two financial accounts that were trust assets. She appointed
    Mark as successor trustee of both accounts. In 2015, before
    trial, Marcia resigned as trustee in all matters for both trusts
    and Mark accepted the appointment as successor trustee in
    all matters.
    Before Mark assumed his role as successor trustee of both
    trusts in the entirety, he understood his roles to be that of suc-
    cessor trustee of two financial accounts associated with the
    trusts and that of Marcia’s agent under the power of attorney.
    Evidence at trial showed that Mark performed other actions
    within those roles, purporting to be the trustee of the two
    trusts in his signature. For example, the evidence showed that
    Mark signed a bill of sale for a vehicle owned by one of the
    trusts as “Trustee” in 2013. He also signed a state severance
    tax return for oil and gas royalties as “Trustee” in 2012. Mark
    explained that he “‘used [his] signatures, [Marcia’s] signa-
    tures, [power of attorney]/Trustee interchangeably because
    it really [did]n’t matter.’” He believed his power to sign as
    trustee came from his authority under the power of attorney
    executed by Marcia.
    In that time, Mark also facilitated several transfers of
    money between different financial accounts associated with
    the Family Trust and the Survivor’s Trust. Several of the trans-
    fers exceeded $200,000. At trial, an estate-planning attorney
    testified concerning the tax consequences of these transfers
    and opined that the transfers were a violation of the trust
    terms. Specifically, the witness testified that the two trusts
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    had substantially different terms and that as a result, the
    trusts’ assets could not be commingled. The witness further
    testified that because the Family Trust was irrevocable and
    the Survivor’s Trust was revocable, the Family Trust’s assets
    should have been kept separate from the Survivor’s Trust’s
    assets to maintain the appropriate tax basis for the assets.
    Additionally, the witness opined that the assets transferred to
    the Family Trust would have been subject to gift taxation and
    that Mark appeared not to have considered these tax issues in
    managing the trusts’ assets.
    The evidence at trial also showed that in managing the
    trusts’ assets, Mark worked with Marcia’s financial advisor in
    making investment decisions and all of his investments were
    recommended by the financial advisor. During the time that
    Mark managed the trusts, their combined assets increased in
    value from $1.5 million to a little over $2 million.
    4. Hostility Between Successor
    Trustee and Beneficiaries
    Russell and Cynthia both testified that they were concerned
    with Mark serving as successor trustee because of his aggres-
    sion and resentment toward them. The hostility apparently
    began after their aunt died and left a disproportionate amount
    of real estate to Cynthia. Both Russell and Cynthia testified
    that Mark repeatedly threatened to “make it even” using the
    assets from the trusts and that he personally blamed Cynthia
    for her larger share, called her a “vulture,” and even claimed
    Cynthia manipulated and then “murdered” their aunt for her
    share. Evidence presented at trial showed that Mark consid-
    ered Cynthia’s share to be “ill gotten” and “a grossly unequal
    share.” Separate from the issues with the aunt’s estate, Mark
    also believed that Russell and Cynthia stole from Marcia.
    And he had threatened to withhold any distributions until the
    property was returned. Mark’s own words described the situ-
    ation with his siblings as “WWIII” and characterized one of
    his communications to them as the “2014 equivalent of the
    Potsdam Declaration.”
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    Russell and Cynthia additionally presented evidence that in
    2012, they had requested information from Mark, including a
    copy of the document creating the trusts; a copy of the peri-
    odic statements issued for each of the trusts’ financial accounts
    for the preceding 2 years; an explanation of “any expenditure
    of the Trust’s assets made” by Mark in the preceding 2 years;
    and a list of the trusts’ assets, excluding financial accounts
    already documented. In response to the request, Mark pro-
    vided balance sheets and profit-and-loss statements for the 2
    years, totaling seven pages. He did not provide copies of the
    document creating the trusts, periodic statements of financial
    accounts, or any explanations of expenditures. He explained at
    trial that he was advised to ignore the request of information
    related to administration of the trusts, because he had no obli-
    gation to supply the requested information.
    5. County Court’s Orders
    The conservatorship case and the trust case initially pro-
    ceeded to a consolidated trial. At the close of Russell and
    Cynthia’s case, Mark moved for a directed verdict, alleging
    that they had no standing to assert their claims against Mark,
    because he did not owe them any fiduciary duties. The court
    overruled this motion and overruled it again after it was
    renewed at the close of all evidence. We omit summarization of
    other such motions, which are not contested on appeal.
    On September 9, 2015, the county court entered separate
    orders in the conservatorship and trust cases. We summarize
    each order.
    In the conservatorship order, the court appointed Mark as
    Marcia’s conservator. The order imposed other terms and con-
    ditions, but they are not relevant to the appeals before us.
    In the trust case, the court concluded that Mark breached
    unspecified duties to Russell and Cynthia under three sec-
    tions of the Nebraska Uniform Trust Code2 but did not violate
    a fourth section. The order did not elaborate regarding the
    2
    Neb. Rev. Stat. §§ 30-3801 to 30-38,110 (Reissue 2016).
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    violations. The court also determined that an accounting had
    already been provided but sustained the claim for accounting
    as a violation of another section. The court dismissed the sur-
    charge claim, concluding that no improper moneys or property
    were converted to Mark for his personal use. The order stated
    that Mark would be removed as successor trustee upon the
    appointment of a new successor trustee. Thus, this first order
    in the trust case reserved the appointment of the new successor
    trustee for a later order.
    Mark and Marcia timely appealed the order appointing a con-
    servator and filed a supersedeas bond. This appeal was dock-
    eted as case No. A-15-967. At the same time, they attempted
    to appeal from the trust case. That appeal was docketed as case
    No. A-15-968.
    After the order in the conservatorship case appointing Mark
    as conservator but before the appeal in that case was perfected,
    Russell and Cynthia filed an application for attorney fees,
    totaling $139,743.25, and costs, totaling $6,112.76, related to
    both the trust and conservatorship proceedings. This applica-
    tion was filed in both the trust case and the conservatorship
    case. They also filed an application for Mark to reimburse
    the trust for attorney fees expended in the trust case with
    trust moneys.
    Very quickly thereafter, the Nebraska Court of Appeals
    dismissed the trust case appeal, case No. A-15-968, for lack
    of jurisdiction—no doubt for the lack of a final order because
    of the reserved appointment of a successor trustee. Before the
    remaining matters were addressed by the county court, the
    Court of Appeals sustained an unopposed motion to stay the
    conservatorship appeal pending disposition of the remaining
    matters. The Court of Appeals also ordered Mark and Marcia
    to notify it when the matter was again appealed and directed
    them to request consolidation of case No. A-15-967 with the
    new appeal.
    Shortly after the Court of Appeals’ dismissal of the trust
    case appeal, the county court appointed a successor trustee,
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    granted Russell and Cynthia’s application for attorney fees
    in the sum of $44,957.98 and costs of $1,645.48 in the trust
    case, denied their application for attorney fees in the con-
    servatorship case, and denied the motion to require Mark to
    reimburse the trust for attorney fees and costs paid from the
    trust. The order was treated by the county court and the par-
    ties as having been filed below in both the conservatorship
    case and the trust case. The order included an attachment
    titled “Attorney Fee Analysis” that indicated the $44,957.98
    in attorney fees and $1,645.48 in costs were those incurred in
    the trust case after Marcia resigned as trustee of two financial
    accounts in April 2011 and before Marcia resigned as trustee
    in March 2015.
    Mark and Marcia then filed the new appeal contemplated
    by the Court of Appeals. Both the parties and the county court
    treated the notice of appeal as having been filed in both cases
    below. The new appeal was docketed as case No. A-16-040.
    Mark and Marcia then moved for consolidation of cases Nos.
    A-15-967 and A-16-040, as they had been directed to do by
    the Court of Appeals. The Court of Appeals then sustained the
    motion and set a consolidated briefing schedule.
    In due course, we moved both appeals to our docket.3 In
    recognition of that action, the prefix of each case number was
    changed from “A” to “S.”
    III. ASSIGNMENTS OF ERROR
    Mark and Marcia assign that the county court erred in (1)
    appointing a conservator for Marcia; (2) failing to dismiss
    Russell and Cynthia’s claims in the trust case for lack of
    standing; (3) removing Mark as trustee; (4) finding that Mark
    violated §§ 30-3866, 30-3867, 30-3868, and 30-3878; (5)
    ordering that a portion of Russell and Cynthia’s attorney fees
    and costs for the trust proceeding should be paid out of the
    trust; and (6) excluding certain evidence at trial.
    3
    See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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    Russell and Cynthia cross-appeal and assign that the county
    court erred in (1) finding that Mark did not violate § 30-3869,
    (2) appointing Mark as the conservator for Marcia instead of
    a corporate fiduciary, (3) disallowing in its entirety Russell
    and Cynthia’s attorney fees and costs in the conservatorship
    proceeding, (4) reducing the amount of Russell and Cynthia’s
    attorney fees and costs in the trust proceeding, and (5) declin-
    ing to order Mark to reimburse the trust for attorney fees and
    costs he expended in the trust proceeding.
    Marcia’s death renders moot the issue of the appointment
    of her conservator and abates her appeal, but it does not abate
    the entire cause of action.4 Because the appeal in case No.
    S-15-967 was taken only from the order appointing a con-
    servator, it is dismissed. Marcia’s death also moots Russell
    and Cynthia’s assignment on cross-appeal contesting Mark’s
    appointment as conservator. And we dismiss Marcia as a party
    in each appeal. The only remaining issue pertaining to the
    conservatorship case is Russell and Cynthia’s cross-appeal in
    case No. S-16-040 assigning error to the denial of their appli-
    cation for attorney fees and costs. This issue was not mooted
    by Marcia’s death. Thus, to the extent that it is inconsistent
    with our disposition of these appeals, we overrule Mark’s
    motion to remand case No. S-15-967 with directions to vacate
    and dismiss.
    IV. STANDARD OF REVIEW
    [1,2] An appellate court reviews conservatorship proceed-
    ings for error appearing on the record in the county court.5
    When reviewing a judgment for errors appearing on the record,
    an appellate court’s inquiry is whether the decision conforms
    to the law, is supported by competent evidence, and is neither
    arbitrary, capricious, nor unreasonable.6
    4
    See In re Conservatorship of Franke, supra note 1.
    5
    Id.
    6
    
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    [3] Appeals involving the administration of a trust are equity
    matters and are reviewable in an appellate court de novo on
    the record.7
    [4] A trial court’s decision awarding or denying attorney
    fees will be upheld on appeal absent an abuse of discretion.8
    V. ANALYSIS
    1. Standing to Petition for
    R emoval of Trustee
    [5,6] On appeal, Mark renews his argument that Russell
    and Cynthia lacked standing to petition for his removal as
    trustee. Standing involves a real interest in the cause of action,
    meaning some legal or equitable right, title, or interest in the
    subject matter of the controversy.9 Mark argues that Russell
    and Cynthia did not have a real interest in the trustee removal
    proceeding, because, under § 30-3855, he owed fiduciary
    duties exclusively to Marcia. This argument confuses the issue.
    Section 30-3855 does not dictate who may petition for the
    removal of a trustee, but, rather, describes to whom fiduciary
    duties are owed.
    [7] Generally, standing in a trustee removal proceeding is
    governed by § 30-3862(a). That statute does not focus on the
    fiduciary duties owed by a trustee. Rather, it provides that
    “[t]he settlor, a cotrustee, or a beneficiary may request the
    court to remove a trustee, or a trustee may be removed by the
    court on its own initiative.”10 And, the Nebraska Uniform Trust
    Code defines a beneficiary as “a person that . . . has a present
    or future beneficial interest in a trust, vested or contingent[.]”11
    7
    In re Trust Created by Hansen, 
    274 Neb. 199
    , 
    739 N.W.2d 170
    (2007).
    8
    In re Guardianship & Conservatorship of Karin P., 
    271 Neb. 917
    , 
    716 N.W.2d 681
    (2006).
    9
    In re Interest of Enyce J. & Eternity M., 
    291 Neb. 965
    , 
    870 N.W.2d 413
          (2015).
    10
    § 30-3862(a).
    11
    § 30-3803(3).
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    The parties do not contest that Russell and Cynthia had,
    at a minimum, a contingent future beneficial interest in the
    trusts. Accordingly, they had standing to petition the court for
    Mark’s removal.
    2. M ark’s Fiduciary Duties
    Having determined that Russell and Cynthia had stand-
    ing to petition for Mark’s removal as trustee, we now con-
    sider whether Mark owed any fiduciary duties to Russell
    and Cynthia. The relevant statute distinguishes between trust-
    ees’ duties in administering revocable and irrevocable trusts.12
    Therefore, we will separately consider Mark’s fiduciary duties
    owed to Russell and Cynthia in relation to the revocable
    Survivor’s Trust and the irrevocable Family Trust.
    (a) Survivor’s Trust
    With regard to the Survivor’s Trust, though by its own terms
    it is now irrevocable upon Marcia’s death, we must review
    the trust as it was when Mark served as trustee. And, it is
    uncontested that the Survivor’s Trust was revocable during
    Marcia’s lifetime: Marcia was entitled to the entire net income
    and could withdraw from the principal of the Survivor’s Trust
    at her will. There was no limitation on this authority, and
    Russell, Mark, and Cynthia were contingent beneficiaries of
    the Survivor’s Trust assets.
    The statute states that “[w]hile a trust is revocable, rights
    of the beneficiaries are subject to the control of, and the
    duties of the trustee are owed exclusively to, the settlor.”13
    Marcia was the only living settlor while Mark served as trustee
    of the Survivor’s Trust. Accordingly, Mark owed his duties
    as trustee to Marcia, and no one else in administering the
    Survivor’s Trust.14
    12
    § 30-3855.
    13
    § 30-3855(a) (emphasis supplied).
    14
    See Manon v. Orr, 
    289 Neb. 484
    , 
    856 N.W.2d 106
    (2014).
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    [8] Although Mark did not owe fiduciary duties to Russell
    and Cynthia in administering the Survivor’s Trust, this is not
    the end of our analysis. A serious breach of a fiduciary duty
    is only one of the grounds for removal of a trustee.15 Because
    of the shared beneficiaries and trust agreement creating both
    trusts, if removal for breach of fiduciary duty was appropriate
    for the trustee of the Family Trust, the county court had the
    power in equity to determine it was in the best interests of the
    beneficiaries to remove the trustee of the Survivor’s Trust.16
    (b) Family Trust
    (i) Marcia’s Power
    of Appointment
    Mark argues that he did not owe any fiduciary duties to
    Russell and Cynthia as trustee of the Family Trust, because
    Marcia possessed a limited power of withdrawal that, hypo-
    thetically, could have completely divested Russell and Cynthia
    of their interest in the Family Trust. And, under the same stat-
    ute, “the holder of a power of withdrawal has the rights of a
    settlor of a revocable trust under this section and the duties of
    the trustee are owed exclusively to the holder of the power to
    the extent of the property subject to the power.”17 We find no
    merit in this argument, because Marcia did not possess a power
    of withdrawal.
    The Nebraska Uniform Trust Code defines a “power of
    withdrawal” as “a presently exercisable general power of
    appointment.”18 A power of appointment is general when “it is
    exercisable in favor of any one or more of the following: the
    donee of the power, the donee’s creditors, the donee’s estate, or
    the creditors of the donee’s estate.”19
    15
    See § 30-3862.
    16
    See 
    id. 17 §
    30-3855(b) (emphasis supplied).
    18
    § 30-3803(11) (emphasis supplied).
    19
    Restatement (Second) of Property: Donative Transfers § 11.4 (1986).
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    It is clear from the language of the trust that Marcia did not
    possess a presently exercisable general power of appointment.
    The trust agreement provides in part:
    By either a last will or by a living trust agreement,
    the surviving Trustor shall have the limited testamen-
    tary power to appoint to or for the benefit of our joint
    descend­ants some or all of the principal and any accrued
    but undistributed net income of the Family Trust as it
    exists at the death of the surviving Trustor.
    (Emphasis supplied.) By limiting the appointment power as
    exercisable solely in favor of their joint descendants, Marcia
    and her husband ensured that they would never possess a
    general power of appointment in the Family Trust. Because
    the limited power of appointment was not a general power
    of appointment, it was not a power of withdrawal under
    § 30-3855(b).
    (ii) Russell and Cynthia’s
    Present Interest in Trust
    Mark additionally argues that as the trustee of the Family
    Trust, he owed no duties to Russell and Cynthia, because
    they did not have a present interest in the trust and “during
    the period the interest of any beneficiary not having a pres-
    ent interest may be terminated by the exercise of a power of
    appointment . . . , the duties of the trustee are owed exclusively
    to the holder of the power to the extent of the property subject
    to the power.”20 We find no merit in this argument, because
    Russell and Cynthia had a present interest in the trust.
    [9,10] The extent of the beneficiary’s interest in a trust
    depends upon the discretionary power that the settlor intended
    to grant the trustee.21 And, when the parties do not claim that
    the terms are unclear or contrary to the settlor’s actual intent,
    the interpretation of a trust’s terms is a question of law.22
    20
    § 30-3855(c).
    21
    In re Trust Created by Hansen, supra note 7.
    22
    
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    [11,12] The trust agreement provided for the discretion-
    ary payment of the Family Trust principal to Marcia, Russell,
    Mark, and Cynthia. The relevant provision states:
    At any time or times during the trust term, our Trustee
    shall pay to or apply for the benefit of the surviving
    Trustor and our joint descendants so much of the prin-
    cipal of the Family Trust as our Trustee in its discre-
    tion deems proper for their health, maintenance, support
    and education.
    (Emphasis supplied.) Though this provision grants discretion
    to the trustee in determining when and how much of the prin-
    cipal to pay to support Marcia, Russell, Mark, or Cynthia, it is
    clear that this provision was meant to establish a support trust
    for those beneficiaries. In general, trustees of support trusts
    have discretion to determine what is needed for the benefi-
    ciary’s support and to make payments only for that purpose.23
    But this level of discretion does not preclude a beneficiary
    from seeking to show that a trustee has abused its discretion in
    failing to make support payments.24 For these reasons, we find
    that Russell and Cynthia had an enforceable, present interest in
    the Family Trust. As a result, § 30-3855(c) did not apply and,
    thus, Mark owed fiduciary duties to Russell and Cynthia as
    well as Marcia.
    (c) Effect of Power of Attorney
    Mark additionally argues that during the times that Russell
    and Cynthia alleged he violated duties as trustee, he owed no
    duties to them, because he was acting as Marcia’s agent under
    a power of attorney and Marcia remained the trustee. The par-
    ties do not contest that Marcia resigned as trustee over two
    financial accounts associated with the trusts and appointed
    Mark as successor trustee of those accounts in 2011. Assuming
    that Marcia had the authority under the trust agreement to
    resign as trustee over part of the two trusts and that Mark
    23
    
    Id. 24 Id.
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    could act as successor trustee over part of the two trusts, Mark
    was, at the very least, a cotrustee with Marcia.
    [13] A trustee is liable for the action of another trustee if he
    joins in the action, fails to prevent the cotrustee from commit-
    ting a serious breach of trust, or fails to compel the cotrustee
    to redress a serious breach of trust.25 At the very least, Mark
    acted as cotrustee with Marcia in managing the two finan-
    cial accounts and served as Marcia’s agent under a power
    of attorney in managing all other trust affairs. Accordingly,
    Mark joined in all actions by Marcia in administering the trust
    and owed fiduciary duties to Russell and Cynthia under the
    Family Trust.
    3. R emoval of Trustee
    Mark assigns that the county court erred in removing him
    as trustee of the trust, because the evidence does not support
    a finding that he owed or breached any fiduciary duties to
    Russell and Cynthia. The Nebraska Uniform Trust Code autho-
    rizes removal of a trustee where “the trustee has committed a
    serious breach of trust” or “because of unfitness, unwilling-
    ness, or persistent failure of the trustee to administer the trust
    effectively, the court determines that removal of the trustee
    best serves the interests of the beneficiaries.”26
    [14,15] A trustee has the duty to administer the trust in
    good faith, in accordance with its terms and purposes and
    the interests of the beneficiaries, and in accordance with the
    Nebraska Uniform Trust Code.27 The Nebraska Uniform Trust
    Code states that trustees owe the beneficiaries of a trust duties
    that include loyalty, impartiality, prudent administration, pro-
    tection of trust property, proper recordkeeping, and informing
    and reporting.28
    25
    See § 30-3859; Restatement (Second) of Trusts § 184 (1959).
    26
    § 30-3862(b)(1) and (3).
    27
    Rafert v. Meyer, 
    290 Neb. 219
    , 
    859 N.W.2d 332
    (2015).
    28
    In re Estate of Stuchlik, 
    289 Neb. 673
    , 
    857 N.W.2d 57
    (2014).
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    The county court found that Mark had violated several of
    these duties, including his duty to administer the trust in good
    faith, his duty of loyalty, his duty of impartiality, and his duty
    to inform and report. The court specifically found that Mark
    had not violated his duty of prudent administration.
    [16] Mark’s violation of his duty of impartiality is disposi-
    tive. The Nebraska Uniform Trust Code states, “If a trust has
    two or more beneficiaries, the trustee shall act impartially in
    investing, managing, and distributing the trust property, giv-
    ing due regard to the beneficiaries’ respective interests.”29 A
    cause for removal of a trustee is appropriate for the best inter-
    ests of the trust estate where hostile relations exist between a
    trustee and beneficiaries of such a nature as to interfere with
    proper execution of the trust, particularly where it appears
    that the trustee’s personal interests conflict with, or are
    antagonistic to, his or her duties as trustee under the terms of
    the trust.30
    [17,18] Mark contends that the court did not have the
    authority to consider whether he breached his fiduciary duty
    of impartiality under § 30-3868, because Russell and Cynthia
    did not plead violation of that duty in their petition. It is true
    that the issues in a given case will generally be limited to
    those which are pled.31 However, while the Nebraska Rules
    of Pleading in Civil Actions, like the federal rules, have a
    liberal pleading requirement for both causes of action and
    affirmative defenses, the touchstone is whether fair notice
    was provided.32 In our de novo review of the record, we find
    that Russell and Cynthia alleged sufficient facts in their peti-
    tion to put Mark on notice of this claim. And, notably, their
    counsel alleged during opening statements that Mark violated
    § 30-3868 and Mark’s counsel did not object to this as beyond
    29
    § 30-3868.
    30
    In re Estate of Stuchlik, supra note 28.
    31
    SFI Ltd. Partnership 8 v. Carroll, 
    288 Neb. 698
    , 
    851 N.W.2d 82
    (2014).
    32
    Weeder v. Central Comm. College, 
    269 Neb. 114
    , 
    691 N.W.2d 508
    (2005).
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    the scope of the pleadings. Therefore, the issue was properly
    before the county court.
    [19] Impartiality means that a trustee’s treatment of benefi-
    ciaries or conduct in administering a trust is not to be influ-
    enced by the trustee’s personal favoritism or animosity toward
    individual beneficiaries.33 The evidence on the record indicates
    that Mark harbored significant bitterness and hostility toward
    Russell and Cynthia. Mark accused Russell of stealing from
    Marcia and accused Cynthia of murdering his aunt. He addi-
    tionally threatened to “make even” the distributions from his
    aunt’s will with trust assets, evidencing a personal interest in
    acquiring a larger portion of the trust assets than the other ben-
    eficiaries upon Marcia’s death. Here, Mark’s personal interests
    conflicted with his duties as trustee. For these reasons, the
    county court did not err in finding that Mark had violated his
    duty of impartiality.
    [20,21] A finding of one serious breach of fiduciary duty
    is enough to warrant removal of a trustee.34 And an appel-
    late court is not obligated to engage in an analysis that is not
    necessary to adjudicate the case and controversy before it.35
    Accordingly, we need not review the other assigned errors con-
    cerning Mark’s other fiduciary duties.
    4. Attorney Fees and Costs
    (a) Application for Attorney
    Fees and Costs
    Russell and Cynthia assign that the county court erred when
    it reduced their application for attorney fees and costs in the
    trust proceeding. The application requested $139,743.25 in
    attorney fees and $6,112.76 in costs, and the court awarded
    $44,957.98 in attorney fees and $1,645.48 in costs. They
    also assign that the county court erred in disallowing in its
    33
    In re Estate of Stuchlik, supra note 28.
    34
    § 30-3862(b)(1).
    35
    Flores v. Flores-Guerrero, 
    290 Neb. 248
    , 
    859 N.W.2d 578
    (2015).
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    entirety their attorney fees and costs in the conservator-
    ship proceeding.
    [22,23] On appeal, a trial court’s decision awarding or deny-
    ing attorney fees will be upheld absent an abuse of discre-
    tion.36 A judicial abuse of discretion requires that the reasons
    or rulings of the trial court be clearly untenable insofar as
    they unfairly deprive a litigant of a substantial right and a just
    result.37 Although the county court’s reasoning in reducing the
    award of attorney fees in the trust proceeding and disallowing
    the award of attorney fees in the conservatorship proceeding
    was not explicit, we find no abuse of discretion in the county
    court’s order.
    (b) Application for Trustee
    to Reimburse Trust
    Russell and Cynthia additionally assign that the county court
    erred when it declined to order Mark to reimburse the trust
    for his attorney fees and costs paid out of the trust. We again
    review for abuse of discretion and find none.
    5. Exclusion of Certain Evidence
    Finally, Mark assigns that the county court abused its
    discretion in excluding certain evidence. He alleges that
    the excluded evidence would have established Russell and
    Cynthia’s wrongful motives for bringing the two lawsuits:
    namely, that they “brought these lawsuits out of concern for
    their potential inheritance and not due to any concerns for
    [Marcia].”38 Mark argues that two pieces of evidence were
    wrongfully excluded.
    The first piece of evidence was an e-mail sent by Russell
    to Cynthia that was not produced during pretrial discovery to
    36
    In re Guardianship & Conservatorship of Karin P., supra note 8; In re
    Trust Created by Martin, 
    266 Neb. 353
    , 
    664 N.W.2d 923
    (2003).
    37
    State on behalf of Jakai C. v. Tiffany M., 
    292 Neb. 68
    , 
    871 N.W.2d 230
          (2015).
    38
    Brief for appellant at 38.
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    Mark but was discovered when it was attached to a guardian
    ad litem’s report. The county court excluded the evidence at
    trial when Mark offered it, because he did not produce the
    e-mail in response to pretrial discovery. Mark argues that the
    county court erred in excluding this evidence, because Neb.
    Ct. R. Disc. § 6-334(a)(1) requires parties to produce docu-
    ments only “which are in the possession, custody, or control
    of the party upon whom the request is served” and, at the time
    he received discovery requests, he was not in possession of
    the e-mail.
    The second piece of evidence was a contact log created
    by Cynthia that detailed events surrounding her aunt’s death
    and wrapping up her estate. The county court excluded the
    log as irrelevant, and Mark argues this was prejudicial error.
    He asserts that the log included a party admission that con-
    tradicted Russell and Cynthia’s theory that Mark was trying
    to turn Marcia against them and equalize the distributions for
    their aunt’s estate.
    [24,25] Assuming, without deciding, that the county court
    erred in excluding these two pieces of evidence, the error
    was harmless. In a civil case, the admission or exclusion of
    evidence is not reversible error unless it unfairly prejudiced a
    substantial right of the complaining party.39 An order affects
    a substantial right if the order affects the subject matter of
    the litigation, such as diminishing a claim or defense that the
    appellant had before the court entered the order.40 Here, the
    subject matter of the litigation was Mark’s actions as trustee
    and not Russell and Cynthia’s motives in petitioning for his
    removal. And, to the extent that their conflicting motivations
    would bear on their attorney fees, it is clearly harmless where
    the county court disallowed attorney fees in the conservator-
    ship case and substantially reduced the award of attorney fees
    39
    In re Estate of Clinger, 
    292 Neb. 237
    , 
    872 N.W.2d 37
    (2015).
    40
    Kremer v. Rural Community Ins. Co., 
    280 Neb. 591
    , 
    788 N.W.2d 538
          (2010).
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    in the trust case. Accordingly, the exclusion of the evidence
    did not affect a substantial right and was, at most, harm-
    less error.
    VI. CONCLUSION
    We dismiss the appeal and cross-appeal in case No.
    S-15-967 as moot, because that appeal pertained only to the
    order appointing a conservator for Marcia. Turning to the
    appeal and cross-appeal in case No. S-16-040, we find no
    abuse of discretion in the county court’s dispositions of attor-
    ney fees and costs in both the conservatorship case and the
    trust case. We determine that any evidentiary error was harm-
    less. And upon our de novo review, we affirm the removal of
    Mark as trustee and the appointment of his successor. Thus,
    we affirm the county court’s December 29, 2015, final order
    in the conservatorship case and affirm the court’s judgment in
    the trust case.
    A ppeal in No. S-15-967 dismissed.
    Judgment and final order in
    No. S-16-040 affirmed.
    Miller-Lerman, J., not participating.