In re Estate of Forgey ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/09/2018 12:13 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
In re Estate of Glenn G. Forgey, deceased.
Dean R. Forgey et al., appellants and cross-appellees,
v. Lyle A. Forgey, individually and as Trustee,
appellee, cross-appellant, and cross-appellee,
and Bessie I. Forgey-McCoy et al.,
appellees and cross-appellants.
___ N.W.2d ___
Filed February 9, 2018. No. S-16-1027.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions concerning the matters at issue.
3. ____: ____. When evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
4. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
5. ____: ____. An appellate court, in reviewing a judgment for errors
appearing on the record, will not substitute its factual findings for those
of the trial court when competent evidence supports those findings.
6. Judgments. The existence of a fiduciary duty and the scope of that duty
are questions of law for a court to decide.
7. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
8. Wills: Trusts. The interpretation of the words in a will or a trust pre­
sents a question of law.
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
9. Attorney Fees: Appeal and Error. A trial court’s decision awarding
or denying attorney fees will be upheld on appeal absent an abuse of
discretion.
10. 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.
11. Trusts. A trustee has the duty to administer the trust in good faith, in
accordance with its terms and the purposes and the interests of the ben-
eficiaries, and in accordance with the Nebraska Uniform Trust Code.
12. ____. 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.
13. Accounting. An accounting is ordinarily an appropriate remedy for a
breach of the duty to inform and report.
14. Decedents’ Estates: Jurisdiction. County courts have exclusive juris-
diction over all matters relating to decedents’ estates, including the
probate of wills and construction thereof.
15. Decedents’ Estates: Jurisdiction: Equity. In exercising exclusive origi-
nal jurisdiction over estates, county courts may apply equitable prin-
ciples to matters within probate jurisdiction.
16. Decedents’ Estates: Jurisdiction: Wills: Trusts: Minors: Mental
Competency. County courts have jurisdiction over all subject matter
relating to estates of decedents, including construction of wills and
determination of heirs and successors of decedents, estates of protected
persons, protection of minors and incapacitated persons, and trusts.
17. Courts: Jurisdiction. County courts have full power to make orders,
judgments, and decrees and to take all other actions necessary and
proper to administer justice in the matters which come before them.
18. Trusts. If a trust has two or more beneficiaries, a trustee has a duty of
impartiality among beneficiaries.
19. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of an attorney fee.
20. Attorney Fees: Appeal and Error. When an attorney fee is authorized,
the amount of the fee is addressed to the discretion of the trial court,
whose ruling will not be disturbed on appeal in the absence of an abuse
of discretion.
21. Attorney Fees. To determine the value of legal services rendered by
an attorney, it is proper to consider the amount involved, the nature of
the litigation, the time and labor required, the novelty and difficulty of
the questions raised, the skill required to properly conduct the case, the
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Nebraska Supreme Court A dvance Sheets
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
responsibility assumed, the care and diligence exhibited, the result of
the suit, the character and standing of the attorney, and the customary
charges of the bar for similar services.
22. Laches. Laches occurs only if a litigant has been guilty of inexcus-
able neglect in enforcing a right and his or her adversary has suffered
prejudice.
23. Laches: Equity. Laches does not result from the mere passage of time,
but because during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage or preju-
dice of another.
24. Laches. What constitutes laches depends on the circumstances of
the case.
Appeal from the County Court for Keya Paha County:
James J. Orr, Judge. Affirmed in part, and in part reversed and
remanded with directions.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Michael L. Johnson, of Leininger, Smith, Johnson, Baack,
Placzek & Allen, for appellee Lyle A. Forgey.
Kyle S. Irvin for appellees Bessie I. Forgey-McCoy et al.
Miller-Lerman, Stacy, K elch, and Funke, JJ., and
A rterburn, Judge.
K elch, J.
I. INTRODUCTION
This appeal arises from a trustee’s failure to distribute the
corpus of the trust following the grantor’s death in 1993.
Marvel Forgey and her three children, all beneficiaries of the
Glenn G. Forgey Revocable Trust (the trust), appeal the order
of the county court for Keya Paha County resulting from their
suit against Lyle A. Forgey, who was another beneficiary and
was the trustee. Marvel and her children sought to remove
Lyle as trustee, secure administration of the trust, value the
trust assets, divide those assets into separate trusts for the
beneficiaries, and determine liabilities for alleged breaches of
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
fiduciary duties by Lyle. Bessie I. Forgey-McCoy and her two
children, all three also beneficiaries, joined as interested par-
ties. Primarily accepting Lyle’s version of the facts, the county
court valued and distributed the trust assets, assessed damages
against Lyle for estate tax interest and penalties, and declined
to award attorney fees or costs to any party. Marvel and her
children appealed; Lyle cross-appealed, and Bessie and her
children filed a separate cross-appeal. While we largely agree
with the county court’s findings in this case, we conclude that
the county court committed error by not awarding damages
for Lyle’s untimely reports and accountings of his failure to
collect rents on behalf of the trust. We further determine that
the county court abused its discretion in declining to award
attorney fees to Marvel, Bessie, and their respective children.
Accordingly, we affirm in part, and in part reverse and remand
with directions.
II. BACKGROUND
Glenn G. Forgey died in 1993. He was survived by three
children: Lyle and Bessie, mentioned above, and Wayne
Forgey, who is now deceased. Wayne was survived by his wife,
Marvel, and by their three children.
During his lifetime, Glenn transferred property into the trust.
Lyle has been the sole trustee at all relevant times. The trust
gave the trustee broad discretion to make decisions for the
trust in good faith. It required the trustee to provide an annual
report to the beneficiaries upon Glenn’s death. The trust further
directed the trustee, upon the grantor’s death, to use the princi-
pal or net income of the trust to pay the grantor’s legal debts,
death expenses, estate administration costs, and inheritance and
estate taxes. The trust, as amended, further provided:
Upon the death of the Grantor and distribution of the
Grantor’s estate from probate, the Trustees shall divide
the residue of the assets of this trust . . . into equal shares,
so as to provide one share for each then living child of
the Grantor and one share for the then living issue, col-
lectively, of each deceased child of the Grantor. In so
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
dividing the assets of [this trust], . . . in funding [Lyle’s]
equal share of the trust assets the Trustees shall allocate
to his share all common stock which [this trust] may then
own in [a bank in Ainsworth, Nebraska].
(Emphasis supplied.)
No administrative proceedings were commenced for the trust
until 2013, when Marvel initiated this litigation, along with
her children (hereinafter collectively Marvel). Bessie and her
two children (hereinafter collectively Bessie) joined the action
as interested parties. Marvel sued to remove Lyle as trustee,
secure administration, value assets, divide and distribute them
to separate trusts, determine liabilities for defalcations by Lyle,
and recover attorney fees and costs.
Bessie filed her own counterpetition, requesting similar
relief.
Lyle also counterpetitioned, asking the county court to
approve his actions as trustee; determine or confirm the alloca-
tion of trust assets, income, expenses, and compensation; and
award him attorney fees and costs.
The sections immediately below summarize evidence rele-
vant to the parties’ claims on appeal, and we recount additional
relevant facts in the analysis portion of this opinion.
1. Division
Pretrial litigation revealed that the corpus of the trust
included agricultural real estate, bank stock, cash, and a prom-
issory note.
The county court, observing that the trust provided that trust
assets were to be distributed upon Glenn’s death, applied the
principle that equity considers that done which ought to have
been done and treated the division of the trust as though it had
occurred upon Glenn’s death.
The county court further determined that “it was clearly
Glenn’s intent that his trust be divided equally and that Lyle’s
one-third share be funded using the bank stock and that the
remaining assets would be divided between Wayne’s trust and
Bessie’s trust.”
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
In dividing the trust this way, the county court relied on the
testimony and report provided by Lyle’s expert, Tyler Bartruff,
an attorney working in the field of forensic accounting and
federal estate taxes.
Bartruff based his report on the hypothetical assumption that
the trust was split into three equal shares as of Glenn’s date of
death in 1993. The report also assumed that the federal estate
tax return was timely filed and that the tax was timely paid
on a deferred basis under I.R.C. § 6166 (2012). The report
allocated the bank stock to Lyle’s share and added additional
liability to Lyle’s share to make the three shares proportionate.
Bartruff’s report then proceeded with a cashflow summary for
each beneficiary’s share from the split in 1993 until December
31, 2015, using data provided in other exhibits.
2. Valuation
(a) Bank Stock
At the time of trial, the trust owned 13,276 shares (bank
stock), or 66.2 percent, of the holding company for a bank in
Ainsworth, Nebraska. Lyle owned the remaining shares in his
individual capacity.
Two witnesses testified about the bank stock’s value: Janet
Labenz and Fred Lockwood, each a certified public accountant
(CPA) with experience in bank valuation.
Labenz’ testimony and her written report gave a clear and
concise explanation of her reasoning, which resulted in her
applying a lack of marketability discount and valuing the
trust’s bank stock at $7,209,000 as of September 13, 2013.
Lockwood did not apply a lack of marketability discount
and valued the trust’s bank stock as of September 30, 2013,
at $9,804,000. Counsel were unable to elicit a straightforward
explanation to support Lockwood’s conclusion; and because
Lockwood was not a certified valuation analyst, as was Labenz,
he was unable to submit a written report.
The county court expressly accepted Labenz’ $7,209,000
valuation of the bank stock.
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
(b) Land
Upon Glenn’s death, the trust owned three substantial par-
cels of agricultural real estate located in Brown and Keya Paha
Counties in Nebraska and in Tripp County in South Dakota.
On January 15, 2016, the Brown County real estate was dis-
tributed and sold by stipulation of the parties. The sale price of
$9,148,172.70 was equally distributed to the separate trusts for
Wayne and Bessie.
At trial, Marvel’s counsel presented the reports of Larry
Radant, who appraised the three parcels as of 2015. Radant
determined values of $1,065,000 for the Keya Paha County
real estate, $5,630,000 for the Tripp County real estate, and
$9,700,000 for the Brown County real estate.
In addition, Marvel’s counsel also presented values for the
Keya Paha County and Tripp County real estate prepared by a
different appraiser.
The county court relied on the real estate values estab-
lished by Radant, valuing the trust’s real estate at $16,395,000
total. This valuation included Radant’s appraisal of the Brown
County real estate, which had been previously sold below
Radant’s appraised value.
(c) Cash
The county court awarded the parties cash based on
Bartruff’s report, which calculated each party’s share of the
trust had Lyle divided the trust into three equal shares upon
Glenn’s death, timely filed the estate tax return, and paid the
associated taxes on a deferred basis. That report allocated the
trust’s cash as follows: $1,960,910 to Lyle and $382,169 to
Wayne and Bessie ($191,084.50 to Wayne and $191,084.50 to
Bessie). The county court apparently considered past distribu-
tions to Bessie totaling $167,550 and added these distribu-
tions to Bartruff’s total of $382,169. Accordingly, the county
court awarded $1,960,910 to Lyle’s trust and divided $549,719
between Wayne’s trust and Bessie’s trust, resulting in $274,860
to Wayne’s trust and $274,860 to Bessie’s trust. The county
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
court then subtracted $167,550 from Bessie’s share, allocating
$107,310 to Bessie’s trust.
(d) Bradley Williams Note
The parties do not dispute that as of the time of trial, Bradley
Williams owed the trust $61,423. As described in more detail
below, the county court allocated the note representing that
debt to Lyle in its final distribution, deducted its cash value
from Lyle’s trust, and divided its cash value equally between
Wayne’s and Bessie’s trusts.
3. Breaches of Fiduciary Duty
Marvel and Bessie presented evidence attempting to show
various breaches of fiduciary duty by Lyle and resulting
damages.
(a) Estate Taxes
The parties do not dispute that Lyle was late in filing the
trust’s federal estate tax return and in paying the resulting tax
liability. There was evidence that although Lyle’s CPA, Bruce
Hocking, timely prepared the federal estate tax return for
Lyle’s signature, Lyle neglected to sign and mail it on time.
Due to Lyle’s tardiness, the Internal Revenue Service (IRS)
assessed penalties and interest against the trust amounting to
approximately $2,200,000.
To pay the estate tax liability, Lyle obtained loans for the
trust, borrowing from himself in his individual capacity and
from the bank in which he and the trust held stock. Hocking
admitted that this benefited Lyle, as owner of one of the notes
representing the trust’s debt and a shareholder at the bank,
more than it benefited Wayne and Bessie. However, neither
Marvel nor Bessie wanted Lyle to sell the trust’s land to pay
the federal estate tax obligation; nor did Bessie want Lyle to
sell the bank stock.
Hocking negotiated with the IRS and achieved a settlement
which allowed the trust to deduct the interest on the loans as
an administrative expense, which, in turn, directly reduced
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
the federal estate tax liability and resulted in a fiduciary
income tax benefit.
Using the settlement negotiated by Hocking, Bartruff,
Lyle’s expert, opined that the trust incurred damages totaling
$854,803 as a result of Lyle’s late payment to the IRS. Bartruff
explained that this number represented the difference between
the amount that the trust actually paid for estate taxes, penal-
ties, and interest and what would have been paid had the estate
tax return been timely filed and had a proper election under
§ 6166 been made.
Lockwood, Marvel’s expert, testified that the damage to the
trust for Lyle’s breach regarding the estate taxes, penalties,
and interest was $2,258,141. To obtain this figure, Lockwood
added $552,052 in penalties to $1,706,089, which included
interest on the principal ($976,432), interest for federal pen-
alties ($308,339), interest on the bank note ($380,734), and
interest on money borrowed from Lyle ($141,382). However,
Lockwood overlooked that the $976,432 in interest on the prin-
cipal already included $308,339 in interest for penalties.
The county court accepted the testimony of Lyle’s expert,
Bartruff, on the matter of damages related to federal estate
taxes. Accordingly, the county court determined that Lyle’s
breach of his duty to timely handle matters pertaining to estate
taxes damaged the trust in the amount of $854,803.
(b) Cattle Operation Rents
Marvel and Bessie alleged a breach of trust by Lyle for fail-
ing to charge rent to himself and to Wayne for use of the trust’s
land for their cattle operations.
Prior to Glenn’s death, Glenn, Lyle, and Wayne conducted
a cattle operation using 12,000 acres of pasture belonging to
Glenn, as well as real estate belonging to Lyle and Wayne.
Glenn, Lyle, and Wayne shared the profits 20 percent, 45
percent, and 35 percent, respectively. At some point, the land
became part of the trust. After Glenn’s death, from 1993 to
2009 or 2010, Lyle and Wayne continued to share the cattle
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
operation on the same terms, with the trust assuming Glenn’s
20 percent.
After Glenn’s death, Lyle paid no rent to the trust, nor did
Lyle collect rents from Wayne on behalf of the trust. Lyle
testified that the cattle operation handled rents in this manner
before Glenn’s death.
Lyle testified that the trust’s cattle operation used some of
his land and his labor, management, and equipment and that he
did not charge the trust, nor did the trust pay Wayne, for his
labor, management, and equipment. Lyle also testified that the
trust did not pay for using pastureland owned by the family’s
limited partnership or for any inputs for crops grown there
and used to feed the trust’s cattle. However, there was also
evidence that the trust borrowed money for feed, other general
operating expenses, and real estate taxes for its portion of the
cattle operation.
Lyle pointed out that the terms of the cattle operation
allowed the trust to pay down its federal estate tax obligation
without selling trust property.
Marvel did the bookkeeping for Wayne, and she testified
that when they settled up each year, they did not have any
claim against the trust.
Marlin Krohn, an agricultural land manager, testified
that based on the industry standard, the value of Lyle’s and
Wayne’s labor and management of the cattle operation was
$550,000 from 1994 to 2009. Krohn further testified that had
the trust’s pastureland been rented out at market rates between
1993 and 2009, those rents would have totaled $2,100,000. He
opined that the trust could have received $600,000 more in
net income if the cattle had been liquidated in 1993 or 1994
and the real estate leased from that time until 2009, yet that
it was reasonable for the cattle operation to have continued.
Krohn observed that cattle feeding operations were profitable
in 1993 or 1994, despite the subsequent unexpected downturn
in the market.
The county court found that Lyle and Wayne ran the cattle
business with Glenn until his death and that there was never
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IN RE ESTATE OF FORGEY
Cite as 298 Neb. 865
an agreement that they would be charged rent to continue
using the land. The county court also noted that continuing
the cattle operation under those terms allowed for the payment
of tax liability. Thus, it found that Lyle’s actions regarding
this issue were authorized and of benefit to the beneficiaries.
Consequently, the county court assessed no damages against
Lyle arising from the cattle operation.
(c) Cash Distributions
Lyle did not make cash distributions from the trust to the
other beneficiaries until 2008. It was alleged that this was a
breach of Lyle’s fiduciary duty.
In 2008, 2009, and 2010, Bessie received distributions total-
ing $167,550. Bessie testified that during this period, she told
Lyle when she needed money from the trust and he would
give her money, sometimes a little more than she requested.
Bessie testified that she had the understanding that she chose
to forgo her distributions prior to 2008 to facilitate payment
of IRS obligations and avoid the trust’s having to sell land or
bank stock.
After Marvel filed suit in 2013, Lyle began making equal
trust income distributions. In 2015, the county court ordered
equal distributions to separate trusts for Lyle, Wayne, and
Bessie.
Joel Wiegand, a CPA, calculated that if all the distributable
income had been distributed from the trust to Bessie for her
one-third share, total taxes for one-third of the trust tax plus
Bessie’s individual tax would have been $124,265 lower for
1993 through 2012. Wiegand pointed out that cash distribu-
tions did not become available until 2008 when debts were
retired. According to Wiegand, Bessie would have been taxed
$37,284 less had a one-third share of cash been distributed to
her when available in 2008 and thereafter. Wiegand opined
that it was prudent to retain funds to make payments on debts
incurred to pay federal estate taxes.
Hocking, Lyle’s CPA, testified that until all federal estate
tax obligations were paid in full in 2000, he advised Lyle
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Cite as 298 Neb. 865
from time to time that no distributions should be made to the
trust beneficiaries. He testified that at that time, an election
under § 6166 was still a possibility, and that § 6166 required
any distributable trust income to be used to defray federal
estate tax liability.
Lockwood testified that the lack of distributions allowed
more assets to remain in the trust and resulted in $191,381 of
excess, avoidable taxes.
The county court accepted Wiegand’s testimony that the
available cash of the trust did not exceed its liabilities until
2008. Because Lyle’s refusal to make cash distributions
allowed the tax liability to be paid without selling trust assets,
the county court found that Lyle’s actions allowed the trust to
grow from approximately $3 million at Glenn’s death to over
$25 million at the time of trial and thus actually benefited the
beneficiaries. Additionally, the county court noted that Bessie
received $167,550 of cash distributions and that Bessie herself
testified that Lyle distributed cash to her whenever she asked
and sometimes gave her more than she requested.
(d) Williams Note
Marvel and Bessie claimed that Lyle breached his fiduciary
duty and caused damages by failing to collect on the Williams
note. At the time of Glenn’s death in 1993, Williams owed the
trust $136,423. The record shows payments of $25,000 in 2004
and $40,000 in 2013. Deducting these payments results in a
balance of $71,423, but no one disputes that the balance was
$61,423 at the time of trial. Lockwood testified at trial that
he learned that Lyle believed he could collect the balance of
the note.
The county court found that there was no evidence as to
how Lyle breached his fiduciary duties in not collecting the
debt. It concluded that equity required allocating the note to
Lyle’s trust, deducting $61,423 in cash from Lyle’s distribution
and distributing $30,711 in cash to Wayne and $30,711 in cash
to Bessie.
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IN RE ESTATE OF FORGEY
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On appeal, Marvel claims that the county court ought to
have allocated the note to Lyle. This is what the county court
did in the body of its order, but as described in more detail
below, the allocation is not entirely clear on the county court’s
balance sheet.
(e) Failure to Account
Marvel claimed that Lyle had failed to abide by the terms
and purposes of the trust by failing to maintain sufficient
records and to account for trust income and expenses annually.
Bessie made similar claims.
Lyle admitted that as trustee, he had not provided a for-
mal accounting. Members of Wayne’s family and Bessie’s
family confirmed that prior to the litigation, they had not
received any report or balance sheet that gave a picture of the
trust’s affairs.
According to the transcript of a family meeting in 2008,
Hocking provided Wayne’s family and Bessie’s family with
the trust’s fiduciary income tax returns from 1993 through
2007. At the 2008 meeting, Hocking also provided income
tax returns for the trust showing a “general ledger,” rather
than a transaction-by-transaction account, for the income and
expenses of the trust from 2003 to 2007.
In 2013, Lyle provided the other beneficiaries with fiduciary
income tax returns from 1993 to 2012. After the proceedings
commenced in 2013, Lyle provided a full accounting for 2003
to 2012 to Wayne’s family and Bessie’s family. During the
litigation, Lyle provided accountings and fiduciary income tax
returns for 2013 to 2015.
The county court found no showing that the untimely
accounting caused any loss to the beneficiaries and awarded
no damages.
4. Attorney Fees and Costs
All parties requested attorney fees and costs. The county
court conducted a posttrial hearing on the matter and received
affidavit evidence.
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The county court determined that each party should pay
his or her own attorney fees and costs. It noted that while it
did not believe Lyle had poor intentions, his own actions and
neglect opened the door to accusations of breaches of fiduciary
duty. As for the remaining parties, the county court noted that
most of their claims against Lyle lacked merit and amounted
to “microscopically probing” Lyle’s actions for nearly criminal
activity with the goal of “receiving a bigger piece of the pie,”
while contingency agreements between the parties and their
counsel “fan[ned] the flames.”
5. County Court’s Final Distribution
In accordance with its analysis, the county court ordered
Lyle to distribute the trust’s assets as follows:
Lyle’s Trust
Bank Shares $7,209,000
Cash 1,960,910
Estate Tax Penalties and Interest (854,803)
Adjustment for Williams Note, Allocated to Lyle    (61,423)
TOTAL for Lyle $8,253,684
Wayne’s Trust
One-half Land $8,197,500
Cash for one-half Williams Note 30,711
Cash    274,860
TOTAL for Wayne $8,503,071
Bessie’s Trust
One-half Land $8,197,500
Cash for one-half Williams Note 30,711
Cash 274,860
Cash Adjustment   (167,550)
TOTAL for Bessie $8,335,521
III. ASSIGNMENTS OF ERROR
On appeal, Marvel assigns the county court erred when it
(1) held that no damages were associated with Lyle’s failure
to render accountings; (2) failed to hold Lyle liable for excess
interest on estate tax debt caused by failure to pay taxes on
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time and for loss of installment payment interest benefits;
(3) failed to find that Lyle caused damages for loss of the
alternative valuation election of § 6166, requiring payment
of avoidable taxes; (4) failed to value assets as of the filing
date or the date of trial and to assess damages for delayed
administration; (5) awarded Lyle substantially all trust income
retroactively to the time of Glenn’s death; (6) failed to award
damages against Lyle for nonpayment of rents; (7) failed to
award damages against Lyle for failure to collect valid debts
owed to the trust; and (8) failed to award attorney fees and
costs to Marvel.
On cross-appeal, Bessie assigns that the county court erred
in (1) retroactively and hypothetically setting the creation
of the shares of the trust as of the date of Glenn’s death in
1993 and then awarding Lyle substantially all trust income
retroactively to Glenn’s date of death; (2) considering Lyle’s
actions as trustee in failing to collect rents from both himself
and Wayne; (3) failing to award Bessie damages for Lyle’s
failure to distribute income to Bessie, consistent with the tes-
timony of Wiegand; (4) failing to award Bessie attorney fees
against Lyle for his multiple breaches of trust; and (5) holding
that no damages were associated with Lyle’s failure to ren-
der accountings.
On cross-appeal, Lyle assigns that although the county court
properly divided the trust, it erred in (1) failing to hold that
the claims for breach of fiduciary duty were barred by laches,
because there should be no damages for breach of fiduciary
duty if income from the bank stock is not allocated to Lyle’s
trust since Glenn’s death; (2) failing to hold that Wayne’s fam-
ily and Bessie’s family are barred from claims for breach of
fiduciary duty by estoppel, waiver, release, consent, ratifica-
tion and acquiescence; and (3) failing to award attorney fees,
costs, and expenses to Lyle.
IV. STANDARD OF REVIEW
[1-3] Absent an equity question, an appellate court reviews
trust administration matters for error appearing on the record;
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but where an equity question is presented, appellate review
of that issue is de novo on the record. In re Margaret Mastny
Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011). In a
review de novo on the record, an appellate court reappraises
the evidence as presented by the record and reaches its own
independent conclusions concerning the matters at issue. Id.
When evidence is in conflict, the appellate court considers
and may give weight to the fact that the trial judge heard and
observed the witnesses and accepted one version of the facts
rather than another. In re Estate of Radford, 297 Neb. 748, 901
N.W.2d 261 (2017).
[4,5] When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbi-
trary, capricious, nor unreasonable. In re Trust of Rosenberg,
273 Neb. 59, 727 N.W.2d 430 (2007). An appellate court, in
reviewing a judgment for errors appearing on the record, will
not substitute its factual findings for those of the trial court
when competent evidence supports those findings. In re Estate
of Dueck, 274 Neb. 89, 736 N.W.2d 720 (2007).
[6,7] The existence of a fiduciary duty and the scope of that
duty are questions of law for a court to decide. In re Estate of
Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), modified on
denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015).
On a question of law, an appellate court is obligated to reach
a conclusion independent of the determination reached by the
court below. Id.
[8] The interpretation of the words in a will or a trust pre­
sents a question of law. In re Estate of Shell, 290 Neb. 791, 862
N.W.2d 276 (2015).
[9,10] A trial court’s decision awarding or denying attorney
fees will be upheld on appeal absent an abuse of discretion. In
re Conservatorship of Abbott, 295 Neb. 510, 890 N.W.2d 469
(2017). 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. Id.
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V. ANALYSIS
1. M arvel’s A ppeal and
Bessie’s Cross-A ppeal
Glenn died in 1993, and Lyle, the trustee, did not distribute
the trust assets upon Glenn’s death as required by the trust.
As the county court observed, “Now, more than twenty years
later, serious and difficult controversies have arisen . . . .” The
county court made factual findings and applied equitable prin-
ciples to craft a remedy. Marvel and Bessie now challenge that
remedy, along with some of the factual findings upon which
it is based.
The complications in this case have arisen, in large part,
from Lyle’s failure to inform the beneficiaries concerning the
state of the trust over the course of many years. Accordingly,
Marvel first assigns that the county court erred by finding no
damages resulted when Lyle breached his fiduciary duty by
failing to render timely accountings. Bessie also seeks damages
resulting from Lyle’s failure to render accountings.
[11,12] Marvel properly notes that a trustee has the duty
to administer the trust in good faith, in accordance with its
terms and the purposes and the interests of the beneficiaries,
and in accordance with the Nebraska Uniform Trust Code. In
re Conservatorship of Abbott, supra. The Nebraska Uniform
Trust Code states that trustees owe the beneficiaries of a trust
duties that include loyalty, impartiality, prudent administra-
tion, protection of trust property, proper recordkeeping, and
informing and reporting. Id. Prior to January 1, 2005, a trustee
was required to keep the beneficiaries of the trust reasonably
informed of the trust and its administration and, on reasonable
request, provide a beneficiary with a statement of the accounts
of the trust annually. See, Neb. Rev. Stat. § 30-2814 (Reissue
1995); 2003 Neb. Laws, L.B. 130, § 78. Commencing January
1, 2005, the Nebraska Uniform Trust Code required a trustee to
send to distributees at least annually a report of the trust prop-
erty, liabilities, receipts, and disbursements. See, Neb. Rev.
Stat. § 30-3878 (Reissue 2016); L.B. 130, § 78.
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Lyle clearly violated the requirement, prior to 2005, to keep
the beneficiaries of the trust reasonably informed; and after
2005, he violated his duty to send to distributees a report at
least annually. The record reflects that Lyle did not provide
any reasonable reports to Marvel and Bessie until 2008. Then,
after this action was filed, Lyle provided an accounting from
2003 to 2012. Lyle contends that this was adequate, but we
disagree. Failing to provide any information to the benefici­
aries from the date of Glenn’s death in 1993 until 2008 reflects
a violation of Lyle’s duties to report. Marvel and Bessie
should not be required to initiate legal action to compel Lyle
to comply with his statutory obligation. However, the question
becomes, other than attorney fees, what damages have been
shown by Marvel and Bessie.
[13] An accounting is ordinarily an appropriate remedy
for a breach of the duty to inform and report. In re Rolf H.
Brennemann Testamentary Trust, 288 Neb. 389, 849 N.W.2d
458 (2014). However, here, Marvel and Bessie have fur-
ther alleged that Lyle must account for the damages he
caused by his breach of duty as trustee and that a judgment
should be entered against him. Specifically, Marvel claims
that the meas­ure of damages is a different distribution than
was ordered by the county court, which difference would
account for tax penalties, avoidable taxes, and excess inter-
est paid when favorable IRS rates became unavailable, all
due to Lyle’s defaults, as well as unpaid rents, extra income
taxes that would have been avoided by proper distributions,
and attorney fees. Similarly, Bessie groups Lyle’s failure to
account with her assigned errors relating to the cattle opera-
tion, income distributions, and attorney fees and ultimately
requests a different distribution as the remedy. Essentially,
Marvel and Bessie incorporate all of their assigned errors in
suggesting a measure of damages for Lyle’s failure to render
accountings. Therefore, we shall address these intertwined
assignments of error together.
[14-17] In analyzing these assigned errors, we recognize
that under Neb. Rev. Stat. § 24-517(1) (Cum. Supp. 2012),
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county courts have exclusive jurisdiction over all matters
relating to decedents’ estates, including the probate of wills
and construction thereof. In re Estate of Stuchlik, 289 Neb.
673, 857 N.W.2d 57 (2014), modified on denial of rehearing
290 Neb. 392, 861 N.W.2d 682 (2015). Although this case is
not an equity action, in exercising exclusive original jurisdic-
tion over estates, county courts may apply equitable principles
to matters within probate jurisdiction. Id. We have held that
county courts have jurisdiction over all subject matter relat-
ing to estates of decedents, including construction of wills and
determination of heirs and successors of decedents, estates
of protected persons, protection of minors and incapacitated
persons, and trusts. Id. Such courts have full power to make
orders, judgments, and decrees and to take all other actions
necessary and proper to administer justice in the matters which
come before them. Id.
In regard to distribution and valuation of trust assets, the
county court was faced with when to value the assets, because
contrary to the terms of the trust, the trust assets were not
distributed at Glenn’s date of death into three separate trusts.
Lyle suggested that the county court divide Glenn’s trust as
of his date of death, according to the calculations of Lyle’s
expert, Bartruff. In finding that it could follow such an
approach, the county court quoted the following portion of
the Restatement (Third) of Trusts § 89, comment g. at 285-
86 (2007):
Occasionally the time for trust termination arrives and a
directed division into separate trusts or distribution of the
property is unduly delayed or disregarded even though
the trustee has, in one way or another, performed other
aspects of winding up the trust’s affairs. . . . It would
seem appropriate to treat the beneficiary . . . as owner [of]
(or holder of a power of withdrawal over) the trust prop-
erty or appropriate portion thereof—an example of equity
treating as done what ought to have been done.
Rather than offering an alternative distribution schedule for
the trust as of the time of Glenn’s death, Marvel and Bessie
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want the distributions and valuations to be deemed made at
the time of trial. Marvel argues that the county court ought
to have valued the trust assets as of 2016. She contends that
we should adopt a rule that where distribution is delayed, as
here, the assets should be valued as of the date of distribu-
tion. Marvel acknowledges that Nebraska has not addressed
the valuation date for distributed assets. She points to King v.
Onthank, 152 N.H. 16, 871 A.2d 14 (2005), where the lower
court, upon termination of the trust, valued the assets at the
time of distribution, which was 3 years after the grantor’s
death. The appellate court in King v. Onthank noted that the
grantor’s intent would control the date of valuation if such
intent could be determined from the trust document. It ulti-
mately held that under the particular facts presented, the lower
court was not plainly erroneous in finding that the equitable
date for valuation was approximately the date the trust assets
were distributed.
Marvel also cites Van Schaack v. AmSouth Bank, N.A., 530
So. 2d 740 (Ala. 1988), where the appellate court determined
that trust assets should be valued at the date of distribution.
However, in Van Schaack v. AmSouth Bank, N.A., unlike the
instant case, the terms of the decedent’s will created and
funded the residual trust.
We find King v. Onthank, supra, where the date of valuation
of trust assets is determined by the particular facts presented
to the lower court, to be more in line with our existing juris-
prudence. For instance, in domestic relations cases, we have
found that generally, the date on which a court values the
marital estate should be rationally related to the property com-
posing the marital estate. See Brozek v. Brozek, 292 Neb. 681,
874 N.W.2d 17 (2016). In other words, we look to the facts of
each case.
Here, Lyle’s expert, Bartruff, presented a report to opine
a hypothetical balance sheet of the trust had Lyle timely
filed the estate tax return, used all beneficial tax options,
and paid the associated taxes on a deferred basis. Bartruff
based the beginning values for the balance sheet on the final
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values accepted by the IRS after negotiations. As provided
by Glenn’s trust, Bartruff split the beginning values into
three equal trusts, with Lyle receiving the bank stock and
Wayne’s and Bessie’s trusts receiving the remaining assets.
He determined the net change to each trust based upon the
cash inflows and outflows for various items, such as dividend
income, ranching operations, fiduciary tax payments, and
estate tax and interest payments. Additionally, Bartruff based
his report on the position that the trust would not have been
able to pay the estate tax liability as of the date of filing with-
out having to liquidate some of the estate’s assets. The record
supports that Bessie did not want land or bank stock sold to
pay the trust’s tax obligations and that from 1993 to 2009,
Marvel did not want land sold. Therefore, Bartruff determined
the prudent course of action would have been to apply for a
deferred payment plan with the IRS, which allowed reduced
interest rates over several years. Based upon this analysis, he
determined, using 2013 values, the ultimate division of the
trust between the beneficiaries.
Marvel and Bessie assert that this approach is erroneous.
They argue that Lyle benefited, since Lyle’s treatment of
expenses resulted in positive net income for the bank, whereas
the assets assigned to Wayne and Bessie had negative income.
Marvel and Bessie claim that Lyle should account for the
loss of income to Wayne and Bessie because Lyle paid trust
administration expenses using cattle operation income and not
bank income. Bessie argues that the bank dividends at their
present value should have been part of the residue, with the
beneficiaries’ trusts funded therefrom. However, an appellate
court, in reviewing a judgment for errors appearing on the
record, will not substitute its factual findings for those of the
trial court when competent evidence supports those findings.
In re Estate of Dueck, 274 Neb. 89, 736 N.W.2d 720 (2007).
In its factual findings, the county court accepted the facts
posited by Bartruff’s calculations that divided the trust assets
as of Glenn’s date of death. In turn, the income and expenses
associated with the trust assets followed the respective owners
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of those assets. We conclude that the county court was not
clearly wrong in adopting this approach. Therefore, with
Bartruff’s approach controlling, Marvel and Bessie’s position
concerning expenses and income has no merit.
The valuation of bank stock was another major difference
of opinion between the parties that greatly affected valuation
and distribution of trust assets. Marvel and Bessie endorse the
testimony of Marvel’s expert, Lockwood, who opined that the
value of the bank stock was $9,804,000. On the other hand,
Lyle’s expert, Labenz, applied a lack of marketability discount
and valued the bank stock at $7,209,000.
The county court found Lyle’s experts to be more credible
and accepted their opinions concerning these factual issues. In
doing so, the county court was not applying an equitable prin-
ciple, but simply, as the trier of fact, determining which expert
was more credible. As such, we review the county court find-
ings of fact for error on the record. See In re Margaret Mastny
Revocable Trust, 281 Neb. 188, 794 N.W.2d 700 (2011). We
find the decision to accept the testimony of Lyle’s experts
is supported by competent evidence and is neither arbitrary,
capricious, nor unreasonable. See In re Trust of Rosenberg,
273 Neb. 59, 727 N.W.2d 430 (2007), and In re Estate of
Dueck, supra.
As previously noted, the county court distributed the trust
assets as follows:
Lyle’s Trust
Bank Shares $7,209,000
Cash 1,960,910
Estate Tax Penalties and Interest (854,803)
Adjustment for Williams Note, Allocated to Lyle    (61,423)
TOTAL for Lyle $8,253,684
Wayne’s Trust
One-half Land $8,197,500
Cash for one-half Williams Note 30,711
Cash    274,860
TOTAL for Wayne $8,503,071
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Bessie’s Trust
One-half Land $8,197,500
Cash for one-half Williams Note 30,711
Cash 274,860
Cash Adjustment   (167,550)
TOTAL for Bessie $8,335,521
The county court accepted the blueprint for distribution as
outlined by Lyle’s experts, but the final values used by the
county court were similar to the values that Marvel and Bessie
requested in their briefs. The difference between the county
court’s final distribution of assets and that of Marvel and
Bessie mainly stems from Marvel’s and Bessie’s claims that
the bank stock should have been valued at $9,804,000, rather
than $7,209,000, and that the bank dividend income increased
the cash for Lyle.
Although we review the equitable question of distribution
of the trust de novo, under the facts of this case, the county
court could not render an equitable solution without first mak-
ing factual findings as to which experts’ opinions to accept.
Because the county court accepted the expert opinions pre-
sented by Lyle as more credible, this, in turn, controlled the
court’s method of distribution. Certainly, other methods of
distribution exist, but here, the distribution under this circum-
stance was reasonable.
The primary difference between Marvel’s and Bessie’s posi-
tion and the county court’s distribution is the extent to which
the county court offset any alleged damages caused by Lyle.
The county court only offset Lyle for any additional taxes and
interest due to late filing, but Marvel and Bessie requested
offsets for other issues, namely cattle operation rents, estate
taxes, and the Williams note.
Marvel and Bessie contend that Lyle was not impartial in
failing to collect rent for use of trust land for the cattle opera-
tion and that he should pay the associated damages.
[18] If a trust has two or more beneficiaries, a trustee has
a duty of impartiality among beneficiaries. In re Estate of
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Stuchlik, 289 Neb. 673, 857 N.W.2d 57 (2014), modified on
denial of rehearing 290 Neb. 392, 861 N.W.2d 682 (2015).
This includes a duty to act impartially in investing, managing,
and distributing the trust property, giving due regard to the
beneficiaries’ respective interests. Id.
“It is not only appropriate but required by the duty
of impartiality that a trustee’s treatment of beneficiaries,
and the balancing of their competing interests, reasonably
reflect any preferences and priorities that are discern-
ible from the terms . . . , purposes, and circumstances of
the trust and from the nature and terms of the beneficial
interests.” . . .
Id. at 689, 857 N.W.2d at 70 (emphasis omitted), quoting
Restatement (Third) of Trusts § 79 (2007).
Prior to Glenn’s death, Glenn, Lyle, and Wayne conducted
a joint cattle operation using trust land without either Lyle’s
or Wayne’s paying rent. Any profits were divided with Glenn
receiving 20 percent, Lyle receiving 45 percent, and Wayne
receiving 35 percent. This division of any profits continued
after Glenn’s death, with the trust receiving Glenn’s 20-percent
share. Marvel and Bessie claim that Lyle violated his fidu-
ciary duties by continuing the cattle operation without collect-
ing rents.
The county court concluded that Lyle had not breached
his fiduciary duty regarding rents. It relied on the testimony
of Krohn, an agricultural land manager. Krohn valued Lyle’s
and Wayne’s labor and management of the cattle operation
from 1994 to 2009 at $550,000. Krohn admitted that the trust
could have received $600,000 more if they had liquidated
the operation in 1993 or 1994 and leased the real estate until
2009. However, he also observed that it was reasonable for the
cattle operation to continue at that time, despite the subsequent
unexpected downturn in the cattle market, because cattle feed-
ing operations were profitable in 1993 or 1994. In addition
to Krohn’s testimony, the county court acknowledged other
evidence that Lyle and Wayne contributed real estate, cattle,
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and equipment to the cattle operation. The county court did not
expressly assign a value to these contributions, but it appar-
ently found them, along with the labor and management valued
by Krohn, similar to Lyle’s and Wayne’s rent obligations, had
they been assessed.
In this case, the county court accepted Lyle’s proposal to
treat Glenn’s trust as having been divided at Glenn’s date
of death. As a result, the county court effectively found that
Lyle’s trust should be entitled to the bank dividends, since the
bank stock was his property. We find that a similar approach
should have been applied to the land, which was treated by
Lyle’s expert as belonging jointly to Wayne and Bessie. If the
land had been distributed upon Glenn’s death, then the cattle
operation would have been required to pay rent for using it.
Any such rents would have been paid as follows: 20 percent by
the trust, 45 percent by Lyle, and 35 percent by Wayne. Krohn
opined that at market rates, the rent for pastureland would have
been $2,100,000 between 1993 and 2009. Marvel claims that
the county court should have assessed Lyle $1,433,544 (80
percent of $1,791,930) in uncollected land rent, and Bessie
requested $1,716,743 (80 percent of $2,145,929).
We agree with Marvel and Bessie that Lyle, acting as an
impartial trustee, should have treated the land as belonging
to Wayne and Bessie, which, in turn, would have required
the cattle operation to pay rent for using the land. Here, the
record is clear that Bessie was unaware that rents were even
an issue, since Lyle provided her no accounting as to the land.
Wayne’s situation is problematic because he was part of the
cattle operation and had inside information as to whether rents
were being paid. And the record is not clear as to whether
Wayne demanded rent during his life, with Marvel testifying
that she did the bookkeeping for Wayne’s ranch operation and
that when they “settled up” each year, they did not have any
claim against the trust. Further, the reality is that Wayne, as
co-owner of the cattle operation and of the land, could choose
not to collect rent in regard to himself, and he has already
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benefited by not being charged rents for his share of the
cattle operation.
Although this is a breach of fiduciary duty action against
Lyle, not Wayne, Lyle was still in a position of control in
regard to Bessie’s land, since he failed to provide her with any
relevant financial information. Consequently, we conclude that
Lyle breached his fiduciary duty as trustee to Bessie by his use
of her one-half interest in the land and by personally benefiting
from not collecting rents for his share of the cattle operation
in the amount of $472,500 (45 percent of $1,050,000, which
is one-half of $2,100,000). In addition, we conclude that Lyle
further breached his fiduciary duty as to Bessie by failing to
collect rents from Wayne for Wayne’s use of Bessie’s land,
amounting to uncollected rent of $367,500 (Wayne’s 35 per-
cent of $1,050,000).
On remand, therefore, the distribution to Lyle’s trust shall
be reduced by $840,000 ($472,500 + $367,500) and said prop-
erty shall be transferred directly to Bessie’s trust.
Concerning federal estate tax obligations, the trust clearly
provided that when Glenn, the grantor, died, Lyle’s first obli-
gation as trustee was to pay, either from trust principal or
income, all of Glenn’s legal obligations and all estate and
inheritance taxes. Only after these obligations were paid was
the residue of the trust to be divided equally among Glenn’s
living children or their surviving children. The evidence shows
that Hocking prepared the federal estate tax return for Lyle to
sign and that Lyle, without any adequate explanation, failed to
timely file it. This resulted in the trust’s incurring penalties and
additional interest.
Marvel and Bessie claim that the county court erred in
not awarding them damages by subtracting from Lyle’s share
approximately $2,200,000 representing the gross amount of
penalties and interest associated with Lyle’s lapses in filing and
paying federal estate taxes. However, as noted by Lyle, Hocking
negotiated a settlement with the IRS that allowed the trust to
deduct the interest as an administrative expense, which in turn
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directly reduced the federal estate tax liability and resulted in a
fiduciary income tax benefit. Using this negotiated settlement,
Bartruff calculated that the trust incurred damages of $854,803,
which represented the difference between the amount that the
trust actually paid for estate tax obligations and what would
have been paid had the estate tax return been timely filed and
the available beneficial election made. The county court again
accepted the testimony of Lyle’s experts and offset the amount
of $854,803 against Lyle’s share. We find the record contained
competent evidence to support this decision.
Regarding the Williams note, Marvel claims that the county
court erred when it failed to award damages against Lyle for
failure to collect this valid debt owed to the trust. Lyle was not
able to explain why he failed to collect on the note, but there
was some evidence that he believed he could still do so. In the
body of its order, the county court stated:
The trust is the holder of a promissory note from
. . . Williams where $61,423.00 remains uncollected.
Although there was no evidence as to how Lyle breached
his duties in not collecting this debt, this court believes
equity requires allocating this note to Lyle’s trust and
therefore $30,711.00 additional cash should be allocated
to Wayne’s trust and $30,711.00 additional cash allocated
to Bessie’s trust.
The conclusion of the order contained a similar provision.
However, the balance sheet attached to the court’s order, enti-
tled “EXHIBIT ‘A,’” simply reflects that Wayne and Bessie
each receive an “[u]ndivided one-half of . . . Williams [n]ote.”
This wording has apparently led Marvel to the conclusion that
Wayne’s and Bessie’s trusts each received one-half of the note,
rather than its cash value. We understand the confusion; and on
remand, the county court shall amend the order’s exhibit A to
clarify that Wayne’s and Bessie’s trusts each receive an addi-
tional $30,711 of cash, as the body and conclusion of its order
provide. With this finding and direction to the county court,
this assigned error has no merit.
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[19,20] Lastly, Marvel and Bessie claim that the county
court erred in failing to award attorney fees and costs to them.
Attorney fees and expenses may be recovered only where
provided for by statute or when a recognized and accepted
uniform course of procedure has been to allow recovery of
an attorney fee. See In re Trust Created by Martin, 266 Neb.
353, 664 N.W.2d 923 (2003). And in a judicial proceeding
involving the administration of a trust, the court, as justice
and equity may require, may award costs and expenses,
including reasonable attorney fees, to any party, to be paid
by another party or from the trust that is the subject of
the controversy. Neb. Rev. Stat. § 30-3893 (Reissue 2016).
When an attorney fee is authorized, the amount of the fee
is addressed to the discretion of the trial court, whose rul-
ing will not be disturbed on appeal in the absence of an
abuse of discretion. In re Conservatorship of Abbott, 295
Neb. 510, 890 N.W.2d 469 (2017); Barnett v. Peters, 254
Neb. 74, 574 N.W.2d 487 (1998); Rapp v. Rapp, 252 Neb.
341, 562 N.W.2d 359 (1997). A judicial abuse of discre-
tion 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. In re Conservatorship of
Abbott, supra.
The county court denied Marvel and Bessie attorney fees
and stated in part:
As for Lyle’s attorney fees and costs, generally a
trustee would be allowed to be reimbursed from the
trust those fees incurred in successfully defending against
claims for breach of duty. Although in this court’s opin-
ion Lyle was largely successful in defending against
the claims against him, there is no hiding that the trust
lost $854,803.00 due to his neglect involving the estate
tax issue. Further, although this court does not believe
Lyle had mal intentions, it is true that Lyle’s actions
opened the door to being accused of breaches of fiduciary
duties. His neglect with the [IRS], not providing annual
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accountings, and lending money himself and through
the bank, could reasonably create a suspicion of self-­
dealing. Lyle incurred significant attorney fees and costs
in defending his actions, most of which this court has
found to be acceptable. But, it’s only because Lyle cre-
ated the circumstances where it maybe was not unreason-
able for others to doubt his conduct as being in their best
interests. It is for these reasons this court feels that justice
and equity require Lyle to be responsible for his own
attorney fees and costs.
....
. . . Again, to this court, the majority of those accu-
sations were without merit. It is for these reasons this
court feels that justice and equity require [Marvel and
Bessie] to be responsible for their own attorney fees
and costs.
We understand the county court’s reluctance to award
attorney fees, since the majority of the claims against Lyle
were determined to be unfounded. But without an award of
attorney fees, there is no penalty for not reporting to the
beneficiaries for many years until the litigation occurred. As
Marvel points out, in In re Rolf H. Brennemann Testamentary
Trust, 288 Neb. 389, 849 N.W.2d 458 (2014), we found
attorney fees were warranted where, similarly to this case,
the trustees clearly breached their duty to inform and report
for decades and the beneficiary had little choice but to file
litigation to resolve any doubts about the trust’s administra-
tion. And if we do not impose a penalty such as attorney fees
in the instant case, then future trustees may believe that the
statutory requirement to report has no significance. In addi-
tion, we have now found that Lyle breached his duties by the
additional amount of $840,000. As a result, we find that the
county court abused its discretion by not awarding attorney
fees to Marvel and Bessie.
[21] We have previously found that to determine the value
of legal services rendered by an attorney, it is proper to
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consider the amount involved, the nature of the litigation, the
time and labor required, the novelty and difficulty of the ques-
tions raised, the skill required to properly conduct the case, the
responsibility assumed, the care and diligence exhibited, the
result of the suit, the character and standing of the attorney, and
the customary charges of the bar for similar services. See In
re Guardianship & Conservatorship of Donley, 262 Neb. 282,
631 N.W.2d 839 (2001). And we have approved a contingent
fee in trust litigation. See In re Estate of Stull, 261 Neb. 319,
622 N.W.2d 886 (2001).
The record reflects that this litigation was extensive, span-
ning several years. Trial lasted 4 days, and numerous exhibits
and depositions were offered. We have concluded that Marvel
and Bessie were successful in showing that Lyle breached his
fiduciary duties and caused damages by failing to report and
account for his failure to pay rents. Further, Lyle failed to act
on several issues until litigation commenced; and the attorneys
showed a high level of skill.
As set forth in the affidavit received at the hearing on
attorney fees, Marvel’s counsel seeks a contingent fee of 10
percent of the recoveries or distributions to Marvel, along
with costs of $6,439.52. The actual recovery found by the
county court was $854,803. We have now added damages of
$840,000, but those are in regard to Bessie. Therefore, in light
of the factors enumerated above, Marvel shall be awarded a
total of $85,480 (10 percent of $854,803) in attorney fees and
costs of $6,439.
Bessie requests an award for attorney fees of $81,910.13,
costs of $4,510.66, and other expenses of $12,960.43, for a
total of $99,381.22. Considering again the factors above, and
the fact that Marvel brought this action, we award Bessie attor-
ney fees of $40,955 and costs in the amount of $17,470.
This judgment against Lyle for attorney fees and costs
in the total amount of $150,344 shall be a reduction in the
distribution his trust receives, and $150,344 from the prop-
erty in Lyle’s trust or to be distributed shall be directly
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transferred to the attorneys for Marvel and Bessie, according
to this opinion.
2. Lyle’s Cross-A ppeal
On cross-appeal, Lyle assigns that the county court erred
in failing to find that any claims by Marvel and Bessie were
barred by the doctrine of laches.
[22-24] Laches occurs only if a litigant has been guilty of
inexcusable neglect in enforcing a right and his or her adver-
sary has suffered prejudice. Cleaver-Brooks, Inc. v. Twin City
Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). Laches
does not result from the mere passage of time, but because
during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage
or prejudice of another. Id. What constitutes laches depends
on the circumstances of the case. Id.
Lyle contends that it would be inequitable for Marvel and
Bessie to bring actions against Lyle for breach of fiduciary
duty after Lyle contributed part of his dividends from the
bank stock toward payment of federal estate tax obligations.
However, for laches to apply, the bank dividends would need
to have been Lyle’s property in the first place. This lawsuit was
initiated, in part, to resolve whether the bank dividends were
Lyle’s. Therefore, the doctrine of laches does not apply. This
assigned error is without merit.
Lyle also assigns that the county court erred in failing to
find that any claims by Marvel and Bessie were barred by
estoppel, waiver, release, consent, ratification, and acquies-
cence. Specifically, Lyle points out that Wayne and Bessie
either participated in or knew about the cattle operation. We
have already dealt with this allegation in addressing claims
that Lyle failed to account for rents in the cattle operation. As
a result, we will not address this issue again.
Lastly, Lyle claims that he should have been awarded attor-
ney fees. We have already determined that Lyle breached his
fiduciary duties; and, accordingly, he is not entitled to attor-
ney fees.
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VI. CONCLUSION
Although we agree with most of the county court’s find-
ings, we conclude that the county court was clearly wrong in
not awarding damages caused by Lyle’s breaches of fiduciary
duty in failing to provide timely reports and accountings
that showed his failure to collect rents on behalf of the trust.
Further, we conclude that the county court abused its discre-
tion in declining to award attorney fees to Marvel and Bessie.
Thus, we affirm in part, and in part reverse and remand with
directions to apportion damages, attorney fees, and costs in
accordance with this opinion.
A ffirmed in part, and in part reversed
and remanded with directions.
Heavican, C.J., and Wright and Cassel, JJ., not participating.