In re Rolf H. Brennemann Testamentary Trust

Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 353
Cite as 21 Neb. App. 353contract. Brief for appellee on cross-appeal at 29. Inasmuch as
we have affirmed the court’s cancellation of the contract, we
need not further address Stitch’s cross-appeal.
V. CONCLUSION
We find that the evidence adduced at trial demonstrates
that there was never a meeting of the parties’ minds concern-
ing the meaning of the term “feedlot permit” in the real estate
sale contract. We affirm the district court’s cancellation of
the contract.
Affirmed.
In re Rolf H. Brennemann Testamentary Trust.
Kim Abbott, beneficiary, appellant, v.
John E. Brennemann et al.,
Trustees, appellees.
___ N.W.2d ___
Filed October 1, 2013. No. A-12-1029.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an appellate
court reviews trust administration matters for error appearing on the record; but
where an equity question is presented, appellate review of that issue is de novo
on the record.
2. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
3. ____: ____. 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.
Appeal from the County Court for Grant County: James J.
Orr, Judge. Affirmed.
David A. Domina and Jeremy R. Wells, of Domina Law
Group, P.C., L.L.O., for appellant.
Neil E. Williams and Nathaniel J. Mustion, of Lane &
Williams, P.C., L.L.O., for appellees.
Inbody, Chief Judge, and Moore, Judge.
Decisions of the Nebraska Court of Appeals
354 21 NEBRASKA APPELLATE REPORTS
Inbody, Chief Judge.
I. INTRODUCTION
Kim Abbott is a beneficiary of the testamentary trust cre-
ated by the last will and testament of her grandfather, Rolf H.
Brennemann. Abbott sued the trustees of the trust to compel
an accounting of trust assets and liabilities. Abbott’s complaint
was dismissed by the county court, and she has now appealed
to this court.
II. STATEMENT OF FACTS
1. Background Information
On August 18, 1976, Rolf passed away, leaving a last will
and testament. Under the terms of Rolf’s will, 525 shares of
the “Rolf H. Brennemann Company” (the company) were
to be held in the Rolf H. Brennemann Testamentary Trust;
however, since Rolf’s wife, Bessie Brennemann, filed for an
elective share of Rolf’s estate, 325 shares of the company
ended up being held by the trust, which shares constituted a
42.42-­ ercent share of the company. The primary asset of the
p
company was an approximately 5,425-acre ranch located in
Grant and Cherry Counties, Nebraska.
Pursuant to the terms of Rolf’s will, all of the net income
of the trust was to be paid to Bessie for the duration of her
life. Upon Bessie’s death, the net income of the trust was
to be distributed in equal shares to Rolf’s three children:
Edward Brennemann, Mamie Brennemann, and Rolf William
Brennemann (Rolf William). Upon the death of Rolf’s last
surviving child, the corpus of the trust was to be distributed to
Rolf’s grandchildren. Bessie died in 1998.
Rolf’s will appointed Edward, Mamie, and Rolf William as
trustees. If any of the originally appointed trustees, i.e., Rolf’s
children, were unable to serve as trustee, the oldest son of the
previously nominated trustee would serve as successor trustee.
Edward passed away in 1982, at which time his children
became qualified beneficiaries of the trust and his oldest son,
John E. Brennemann, became a trustee. Rolf William passed
away on June 1, 2002, at which time his children, including
Abbott, became qualified beneficiaries of the trust and his
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 355
Cite as 21 Neb. App. 353oldest son, Rolf William Brennemann, Jr. (Rolf William Jr.),
became a trustee.
In 1986, the trustees filed a petition to vote company stock,
alleging that the company owed significant liabilities, had
never paid dividends, and was not providing income to the
trust. The petition alleged that John had offered to purchase the
ranch, which offer was accepted; it was only after John’s offer
to purchase the ranch had been accepted that Abbott, one of
Rolf William’s daughters, also made an offer to purchase the
ranch. Thereafter, the county court authorized the trustees to
vote the company stock for the sale of the ranch to John pursu-
ant to a June 10, 1986, purchase agreement. The court deter-
mined that the price paid for the real estate was at or above fair
market value and constituted the most advantageous terms for
the trustees to secure.
The 1986 purchase agreement set forth that John and his
wife agreed to purchase the ranch on an installment payment
basis for a total purchase price of $494,021. Payment of the
purchase was to be made with $16,000 at the execution of the
purchase agreement; $144,000 at closing; and $334,021 to be
paid in nine annual payments, with a 10-percent interest rate
and a balloon payment of the unpaid principal and interest on
July 1, 1996.
In 1996, an agreement was executed, extending the origi-
nal purchase agreement for 10 additional years, until July
2006. The record indicates that these additional payments were
made each year from 1996 to 2006 at an 8-percent interest
rate. Records indicate that on July 11, 1996, the beginning
loan amount on the extension agreement was approximately
$209,420. Bank statements and canceled checks indicate that
John paid those annual payments to the bank and to the trust.
On July 14, 2006, the bank issued a trustee’s deed of reconvey-
ance for the ranch to John and his wife upon John’s final pay-
ment in accordance with both the purchase agreement and the
extension agreement.
2. P rocedural History
On April 9, 2010, Abbott filed a “Complaint by Beneficiary
to Compel Accounting by Testamentary Trustee” against the
Decisions of the Nebraska Court of Appeals
356 21 NEBRASKA APPELLATE REPORTS
current trustees of Rolf’s trust, namely John, Mamie, and Rolf
William Jr. Abbott’s complaint alleged that she had occasion-
ally been paid small sums of money, but had never received
any information regarding the trust. The complaint further
alleged that in December 2009, she requested an accounting
from the trustees and was refused. The complaint sought a full
and complete accounting of the trustees’ actions and payment
of income derived from the administration of the trust, along
with costs and attorney fees.
John, Mamie, and Rolf William Jr. filed an answer and
cross-petition, denying many of the allegations contained
within Abbott’s complaint and petitioning the court for a termi-
nation of the trust. On July 12, 2010, the trustees filed a report
including an 11-page accounting of trustee actions on the trust
from January 1, 2002, through April 30, 2010, with updates on
actions taken throughout the proceedings filed thereafter. The
report indicated that the trust has four active bank accounts;
sets forth moneys received in those accounts, including interest
and John’s payments pursuant to the purchase agreement; and
also lists items paid out, including taxes, professional fees for
the accountant, beneficiary distributions for each year, and var-
ious bank charges. The trustees’ report indicated that the trust
balance on January 1, 2002, was $10,917.36 and that through
April 30, 2010, the trust had received a total of $208,560.47
and paid out $207,811.73, leaving an April 30 balance forward
of $748.74.
In July 2010, Abbott filed a motion to amend her complaint,
additionally alleging that the trustees had filed an accounting
and that the accounting failed to fully account for trust assets.
Abbott’s amended complaint includes the original allegation
that in December 2009, she requested an accounting and the
trustees failed and refused to provide one, and additional
allegations that the trustees have failed to maintain adequate
records and breached their fiduciary duty to administer the
trust in good faith. The amended complaint requested that the
trustees be required to render a full and complete accounting,
to pay Abbott all the income from the trust in the trustees’ con-
trol, to redress the breaches by personally paying the amount
required to restore the value of the trust property, to restore the
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 357
Cite as 21 Neb. App. 353principal of the trust, and to pay all attorney fees and costs, and
any other appropriate relief.
3. Trial Testimony
and Evidence
Trial was held on the matter, during which Mamie, who
was 74 years old, testified that she had been a trustee since the
inception of the trust in 1976. Mamie believed that over the
course of the life of the trust, the trustees had acted properly
in their duties. Mamie testified that the trust paid income to
her mother, Bessie, until Bessie died and that that was her only
source of income. In the early 1980’s, Mamie testified, the
family ranch was indebted and should have been sold, which
it was pursuant to a court-approved sale in which John pur-
chased the ranch. Many of the payments made from the sale of
the ranch were also used to pay the debts of the ranch, which
Mamie said “owed so much money then.” Mamie indicated
that she was certain all the payments required of John had been
made but could not recall specifics about disbursement of the
money. Mamie testified that the money from those payments
was deposited with the Bank of Hyannis and that she had tried
to get the corresponding records from the bank, but had been
informed the records had been destroyed. Mamie testified that
she did not keep any trust documents and did not know which
other trustee or trustees did, though she was sure that such doc-
uments had been kept. Further, Mamie was aware that the vari-
ous banks and accountants were all contacted to retrieve past
trust documents and none had any of the requested documents
archived. Mamie testified that prior to 2002, beneficiaries were
always welcome to information regarding the trust but she did
not know what her efforts were to inform the beneficiaries and
did not recall making any efforts as a trustee. Mamie and the
other trustees had annual meetings before the annual ranch
payment was due, and all of the decisions made by trustees
were unanimous.
Mamie agreed that many of the documents which predated
2002 were unavailable because they had been destroyed. Mamie
testified that the trust, since its inception, had been managed by
three separate accounting firms and that if she received any
Decisions of the Nebraska Court of Appeals
358 21 NEBRASKA APPELLATE REPORTS
information regarding the trust, she took it directly to the bank
or accounting firm in question.
Mamie testified that at the time of Rolf’s death, her two
brothers rented the land from the company, which rental
continued after Rolf’s death. However, Mamie explained that
over time, the debt that the ranch incurred became unman-
ageable and she and her brothers determined that it was not
feasible to keep the ranch, resulting in the sale of the ranch
in 1986. Mamie testified that at that time, the ranch owed
the Federal Land Bank of Omaha approximately $19,000 and
Alliance Production Credit $100,000. Mamie testified that
the Bank of Hyannis was handling the sale under the trust at
that time.
Mamie testified that John and his wife sent the promissory
note payments on the purchase agreement to the bank, which
changed corporate names several times over the course of the
trust. The bank disbursed the funds directly, including distribu-
tions. Mamie testified that all of the payments for the ranch
were made by John and that the payments were extended,
not because John was unable to pay but because her mother,
Bessie, was still alive at that time and the extension would
ensure that Bessie continued to receive income from the trust,
which was a 42.42-percent shareholder in the company. Mamie
agreed that regardless of who paid off the promissory note, the
bank issued a trustee’s deed of reconveyance once the exten-
sion agreement had been paid off. We note that after trial was
held in this matter, Mamie passed away; however, the action
was revived in the name of her personal representative, John.
According to the will, after the death of Mamie, Rolf’s last
surviving child, the trust would terminate and the remain-
ing corpus of the trust was to be paid in accordance with the
will’s directives.
John testified that he had been serving as trustee since
his father, Edward, died in 1982. John testified that in 1996,
when the original balloon payment on the ranch was due, he
and his wife were in a position to make the payment and his
banker recommended that they do so. However, after discuss-
ing the matter with Mamie, John decided to extend the loan
out another 10 years in order to continue to provide a source
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 359
Cite as 21 Neb. App. 353of income for Bessie. John testified that in 2002, when Rolf
William Jr. became a trustee, he was present during only the
winter months because he lived in Alaska during the summer,
so most times John and Mamie were left to deal with the trust.
When Rolf William Jr. was present, the three would discuss
any issues and would make disbursements after John made
the ranch payment in July. John and Mamie would also take
care of putting the principal into investments and disbursing
the interest.
John testified that he and his wife made every single pay-
ment on the ranch and that he never defaulted on any of those
payments. John testified that he attempted to locate trust docu-
ments from prior to 2002, but discovered that the old files had
been destroyed. John explained that Edward and Rolf William
had entered into a leasing agreement with the company, which
agreement was designed to pay off outstanding debts to the
Federal Land Bank of Omaha and Alliance Production Credit,
but that Rolf William had failed to make several payments.
John indicated that had all the rental payments been made,
the debt would have been paid and the ranch would not have
needed to be sold. John testified that he had received docu-
ments regarding the trust from the accountant, but could not
locate those documents.
Abbott testified in her own behalf, in addition to her depo-
sition’s being received at trial. Abbott testified she filed this
action after receiving a letter from the trust accountant indi-
cating that the trust contained $75,000 and suggesting that
the trust be terminated. Abbott testified that after receiving
the letter, she requested an accounting, but that she believed
the information that she received was only a partial account-
ing. Abbott testified that prior to her filing the lawsuit, the
trustees had failed to provide her any information regarding
trust assets, liabilities, and disbursements. Abbott testified
that she believed that at the time of Mamie’s death, the trust
would be divided according to the will, which division would
include the value of the ranch. Abbott testified that the trust-
ees had breached their duty as trustees due to the absence of
any accounting from 1976 through 2002. Abbott testified that
the breach was further substantiated by a lack of evidence
Decisions of the Nebraska Court of Appeals
360 21 NEBRASKA APPELLATE REPORTS
that payments were made by John, by evidence that the loan
was not called when it was due and instead was refinanced at
a lower interest rate, and by evidence that no default interest
income had been noted in the trust. Abbott testified that she
would not have an objection to the termination of the trust,
except that she felt the trust was not handled in accordance
with Rolf’s intent, which she felt was to continue the trust
until the death of his last surviving child and then to “divide
it up.”
Abbott testified that the only trust information she ever
received, prior to the letter from the accountant, was sched-
ule K-1 tax forms which included information such as inter-
est, the beneficiary’s share of income, and expenses. Abbott
testified that until Rolf William’s death, she did not receive
any benefit or payment of money from the trust and did not
receive any schedule K-1 tax forms, but Abbott admitted that
until that time, she was not entitled to any income from the
trust. Abbott testified that she reviewed the schedule K-1 tax
forms she received from the trust each year and that she had
no questions, but thought that she should have received more
information. Abbott testified that she was not aware of whether
Rolf William, when he served as a trustee, kept a separate file
or provided accountings.
Josh Weiss, an audit shareholder hired by Abbott to analyze
the accounting filed by the trustees, testified that he held cer-
tifications as a public accountant, in financial forensics, and
in business valuation. In his analysis, Weiss inspected sev-
eral documents pertaining to the case, such as the pleadings,
purchase agreement, and accountings submitted to the court.
Weiss testified that based upon his review of those documents,
in 1986 the trust was entitled to $209,578, or $233,011 tak-
ing into account the changes in ownership and a discrepancy
in the refinance amount. Weiss testified that Mamie’s state-
ment that the trust principal was invested in a fund, totaling
approximately $35,000, was inaccurate and that instead of the
$25,000 indicated on the August 23, 1995, fund statement, as
a purchase confirmation, the trust should have held $101,000
in principal at that time based upon his calculations of the
trust’s share of the downpayment and principal payments that
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 361
Cite as 21 Neb. App. 353should have been made. Weiss testified that he was unable
to tell if principal amounts were set aside or if distributions
were made from the principal or interest, but that based on his
calculations, $157,300 in principal funds was unaccounted for.
Weiss testified that the interest rate reduction in the extension
agreement from 10 percent to 8 percent resulted in the trust’s
receiving $22,994 less than it would have received.
Weiss further testified that he could not find any evidence
of payments made to the trust prior to 1997 and that there was
a default term in the promissory note for late payments made
with a default interest rate of 16 percent after the fifth day.
Weiss testified that some of the payments on the promissory
note were made after the annual July 6 due date and thus were
late payments. Weiss indicated that the trustees did not collect
any of the late payment fees and interest, which amounted to
$786,906 from 1987 to 2001, but Weiss testified on cross-
examination that he was unfamiliar with any statutes which
might allow for a 30- or 60-day window to cure the late pay-
ment without entering into default.
Also on cross-examination, Weiss testified that he did not
take into account the $16,000 placed into escrow at the bank
for the first payment on the purchase agreement and did
not take into account any of the debts of the company, such
as the $119,000 in debts to Federal Land Bank of Omaha
and Alliance Production Credit, or any of the allowance for
open account and attorney fees. Weiss also testified that other
expenses, such as loans from shareholders to the company, real
estate taxes, and tax consequences from the sale of the com-
pany, were likewise not taken into account.
Dan Gilg testified that he had been the accountant for the
trust since January 1996. Gilg, an attorney, a certified public
accountant, and a certified financial planner, testified that it
is customary when a file moves from one accounting firm to
another that the predecessor would transfer just enough infor-
mation as would be necessary for the preparation of the next
year’s tax return. The previous accounting firm for the trust
forwarded Gilg, at his firm, a balance sheet in the transition
of the trust, and thereafter, a balance sheet, income statement,
statement of expenses, and statement of distributions were all
Decisions of the Nebraska Court of Appeals
362 21 NEBRASKA APPELLATE REPORTS
utilized in preparing the income tax returns and schedule K-1
tax forms that were sent out. The January 1, 1996, balance
sheet indicates:
Debit Credit
Cash in bank $   3,558.86
Note receivable—John Brennemann 108,107.55
(42.42 percent of contract)
Investment fund 25,000.00
Deferred income—John Brennemann $  54,699.16
contract
Fund balance—income 176.64
Fund balance—principal               81,790.61
$136,666.41 $136,666.41
Gilg testified that each year, a similar balance sheet was
created. Gilg testified that the balance sheet and tax documents
from prior to 2002 were shredded in the ordinary course of his
firm’s business. Gilg testified that in 2009, he issued a letter
suggesting that the trust be terminated because it was “non-
economical.” Thereafter, Gilg testified, he received several
requests from Abbott and her sister for trust balance sheets and
tax information, in response to which he sent Abbott one packet
of information and Abbott’s sister three packets of information.
Gilg explained that at no time did he deny any request for trust
information or withhold information.
Regarding Weiss’ report, Gilg indicated that the report and
calculations failed to take into account that the sale of the com-
pany was a taxable transaction and that there was no informa-
tion in the calculations regarding federal or state income tax.
Gilg explained that for every principal payment made, over
50 percent would have been subject to taxation, and that pay-
ment of federal and state taxes are corpus items, not income
items, and would not be included in the calculation of distrib-
utable income, which would, in turn, account for some of the
alleged missing principal testified to by Weiss. Gilg opined
that Weiss’ calculations were incorrect because in Gilg’s analy-
sis of the trust documents, it was evident that early on, the
trustees were unable to pay the liabilities of the trust, which
led to their seeking court permission to sell the ranch. In his
review of those court documents, verification was provided
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 363
Cite as 21 Neb. App. 353that there were outstanding liabilities, outstanding real estate
taxes, an outstanding note payable to a beneficiary, outstanding
open accounts, and outstanding federal and state income taxes.
Based upon these liabilities, Gilg opined that little or none of
the downpayment made by John would have been left to pay
into the trust. Thus, Gilg explained that Weiss’ calculations
were based upon an assumption that all of the principal on the
purchase agreement note payments was put into the bank, but
that the calculations were incorrect because of the liabilities on
the money. Gilg opined that Weiss’ approach focused on the
remainder beneficiaries, the grandchildren, instead of on the
income beneficiary, which Gilg believed was more in line with
the intent of Rolf’s will.
Furthermore, Gilg disputed Weiss’ statements that no pay-
ments had been made on the loan agreement and that the trust
had no assets and received no funding prior to 2002, because
evidence indicated that payments were being made in 1999 and
that the bank was acting as the trustee of the deed of trust, col-
lecting payments, and disbursing income to the beneficiaries.
Gilg also testified that during that time, there were only five
or six beneficiaries, some of whom were trustees, and that had
there been any gap in payments, there would have been issues
raised by those beneficiaries or the bank, which was the lender
and accepted the payments.
Gilg testified that he was involved in the consideration of
the extension of the balloon payment and testified that John
and his wife were ready and able to pay the amount designated
in the 1986 purchase agreement. However, Gilg testified that
in light of the primary purpose of the trust, which was to pro-
vide an income stream for Bessie, he was concerned that if the
amount due were paid off, the trust would be hit with federal
and state income taxes, which would reduce the principal.
Further, Gilg testified that the rate of interest for certificates
of deposit would not have been sufficient to provide income
to Bessie, so in order to avoid those problems, the option to
extend the purchase contract at a rate that was higher and to
defer the income tax consequences was better.
Gilg testified that in his opinion, the beneficiaries did
not suffer any monetary losses by reason of the trustees’
Decisions of the Nebraska Court of Appeals
364 21 NEBRASKA APPELLATE REPORTS
administration of the trust. Gilg agreed that even though he did
not have the trust administration documents from prior to 1996,
it appeared from the 1996 balance sheet and the 1986 land sale
documents that there had been no prepayments and no missed
payments. Gilg testified that he had “firsthand knowledge”
that all of the payments had been made since 1996. Gilg tes-
tified that based upon his calculations, since 1995, the trust
had maintained the principal balance within approximately
$3,000 of the initially funded balance. Gilg testified that, as
he indicated in the letter which led to the litigation, there was
no purpose or benefit for the trustees and beneficiaries to con-
tinue the trust and that it was very likely the expenses incurred
in the maintenance of the trust would very soon exceed the
trust’s income.
4. Trial Court’s Order
The trial court found that the trustees had provided the ben-
eficiaries, including Abbott, with a schedule K-1 tax form each
year showing the beneficiaries their respective share of the
income or loss from the trust estate. The trial court found that
in December 2009, Abbott requested a formal accounting of
the trust, and that in 2010, the trustees provided a full account-
ing dating back to 2002, but were unable to provide documen-
tation for years prior to that date because the documents had
been destroyed.
The trial court set forth that prior to the enactment of the
Nebraska Uniform Trust Code, the trustees had a duty to keep
Abbott reasonably informed of the trust and its administration
and, upon reasonable request, Abbott would have been entitled
to an annual statement of trust accounts. The trial court also
set forth that pursuant to Neb. Rev. Stat. § 30-3878(c) (Reissue
2008), the trustees were required to provide Abbott with “‘at
least annually . . . a report of the trust property, liabilities,
receipts, and disbursements, including the source and amount
of the trustee[s’] compensation, a listing of the trust assets and,
if feasible, their respective market values.’”
The trial court found that Abbott’s overall position rested
upon her contention that the trustees were unable to provide
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 365
Cite as 21 Neb. App. 353any documentation from 1976 to 2002. The trial court found
that Abbott attempted to improperly switch the burden of
proof to the trustees, to prove that they did not breach their
duties, and also that she ignored the fact that prior to 2005,
the only obligation of the trustees was to keep Abbott reason-
ably informed absent a reasonable request for more informa-
tion or documentation. The court found that Abbott had never
requested more than the schedule K-1 tax form provided to
her, which, in this circumstance, was adequate to keep her
reasonably informed of the trust, and that thus, the burden
of proof with regard to the alleged breach of duty remained
with her.
The court found that although Abbott asserted that she
suffered damages because the trustees could not account for
$307,942.71 of the principal and interest payments, she could
not prove that assertion. The court found that the evidence
presented indicated the payments were made, that the evidence
did not indicate there were damages for late payments, and
that the trustees did not breach their fiduciary duty by waiving
the right to collect a late fee within the context of this family
trust. The trial court also determined that Abbott’s allegation of
the trustees’ causing unaccounted principal growth was simi-
larly not proved by Abbott. The court denied Abbott’s request
for attorney and witness fees and also denied the trustees’
request to terminate the trust. It is from this order that Abbott
has appealed.
III. ASSIGNMENTS OF ERROR
Abbott assigns that the trial court erred in the following
ways: (1) by failing to shift the burden of proof from Abbott to
the trustees when Abbott presented evidence that the trustees
had not rendered accountings, (2) by dismissing her claims
because she failed to establish a burden of proof she did not
bear and imposing upon her the burden of proving matters
within the exclusive control of the trustees, (3) by finding that
the schedule K-1 tax forms were sufficient accountings when
none were received into evidence, and (4) by failing to award
attorney fees.
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366 21 NEBRASKA APPELLATE REPORTS
IV. STANDARD OF REVIEW
[1] Absent an equity question, an appellate court reviews
trust administration matters for error appearing on the record;
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).
V. ANALYSIS
1. Burden of P roof
Abbott first argues that the trial court erred by failing to
shift the burden of proof to the trustees when she made a
prima facie case proving that the trustees had not rendered
accountings. Abbott contends that the trustees admitted that
“no accounting was made by [them] at any time between the
[t]rust’s origination in 1976 and 2009.” Brief for appellant at
16. Abbott argues that her burden was to establish that she
received no accounting.
Before addressing this issue, we first note that Abbott makes
numerous assertions in her pleadings, throughout the proceed-
ings, and on appeal that in December 2009, she requested an
accounting and was denied such request. Contrary to those
assertions, the record indicates that upon receiving the letter
suggesting that the trust be terminated, Abbott requested an
accounting from the trustees’ accountant, Gilg, which account-
ing was provided to her, through her attorney, in addition to
being filed with the court after she filed her complaint. Gilg
testified that he did not deny any such request and fully com-
plied by forwarding Abbott’s attorney the accounting. Abbott
admitted that she received the accounting, but felt that it was
insufficient and alleged that it was only a partial accounting.
Clearly, as of 2010, Abbott had received the accounting she
had requested in December 2009, after receiving Gilg’s letter
suggesting termination of the trust, and any argument to the
contrary is incorrect.
In Nebraska, the issue of the burden of proof in testamen-
tary trust cases has not frequently been addressed, and there
is no Nebraska case law directly addressing the issue of the
burden of proof for the duty to inform and account to benefi-
ciaries. Cf., In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 367
Cite as 21 Neb. App. 35313 (2009) (beneficiary establishes prima facie case of fraud by
showing that trustee’s transaction benefited trustee at benefi-
ciary’s expense; burden of going forward with evidence then
shifts to trustee to establish by clear and convincing evidence
that transaction was made under power expressly granted in
trust and clear intent of settlor and was in beneficiary’s best
interests); Schaneman v. Wright, 238 Neb. 309, 470 N.W.2d
566 (1991) (burden of proof is upon one seeking to estab-
lish and enforce trust or prove same by clear and convinc-
ing evidence).
In proceedings for construction of testamentary trusts and
against a testamentary trustee for misconduct and breach of
trust, the Missouri Supreme Court has repeatedly found that
the presumption is that a trustee has acted in good faith and
that the burden is on the one questioning his actions and seek-
ing to establish a breach of trust to prove the contrary. See,
Jarvis v. Boatmen’s National Bank of St. Louis, 478 S.W.2d
266 (Mo. 1972); First National Bank of Kansas City v. Hyde,
363 S.W.2d 647 (Mo. 1962). Several other courts from around
the country appear to follow the same suit. See, also, In re
Estate of Damon, No. 28378, 2011 WL 576588 at *6 (Haw.
Ct. App. Feb. 18, 2011) (unpublished disposition listed at 125
Haw. 242, 257 P.3d 1219 (2011)) (“‘[t]he person question-
ing the trustees’ action has the burden of producing evidence
to overcome the presumption, and . . . upon the production
of such evidence, the trustees have the ultimate burden of
establishing the regularity and good faith of the questioned
action’”), quoting Estate of James Campbell, Decsd., 42 Haw.
586 (1958); Salem v. Lane Processing Trust, 72 Ark. App.
340, 37 S.W.3d 664 (2001) (Arkansas law presumes trustee
has acted in good faith and places burden of proof upon those
who question his or her actions and seek to establish breach of
trust); Gregory v. Moose, 266 Ark. 926, 590 S.W.2d 665 (Ark.
App. 1979).
The Restatement (Third) of Trusts § 83 (2007), regarding
the duty to keep records and provide reports, provides that a
“trustee has a duty to maintain clear, complete, and accurate
books and records regarding the trust property and the admin-
istration of the trust, and, at reasonable intervals on request, to
Decisions of the Nebraska Court of Appeals
368 21 NEBRASKA APPELLATE REPORTS
provide beneficiaries with reports or accountings.” The com-
ments to that section indicate that “the records of a trust must
provide information that will enable the trustee to account for
receipts, expenses, and distributions made to beneficiaries. . . .”
Id., comment a. at 204. The reporter’s notes to § 83, comments
a. and a(1)., also provide that the general rule of law appli-
cable to a trustee burdens the trustee with the duty of showing
that the account which he or she renders and the expenditures
which he or she claims to have made were correct, just, and
necessary. “‘“He is bound to keep clear and accurate accounts,
and if he does not the presumptions are all against him, obscu-
rities and doubts being resolved adversely to him.”’” Id. at
208, citing Wood et al. v. Honeyman et al., 178 Or. 484, 169
P.2d 131 (1946), citing 4 Bogert on Trusts and Trustees, § 962
(1935). However, the Restatement (Third) of Trusts, § 100,
comment f. at 68 (2012), specifically sets forth the burden of
proof in a suit against a trustee: “When a plaintiff brings suit
against a trustee for breach of trust, the plaintiff generally bears
the burden of proof.”
In its final order, the trial court found:
In order to prevail on her claim for damages, [Abbott]
acknowledges in her written closing argument that she
has the burden of proof to show [the trustees] have
breached their duties as trustees and the amount of
damages caused by the breach. An overall theme to
[Abbott’s] position is that . . . since [the trustees] are
unable to provide documentation from 1976 to 2002, the
court must therefore assume that there were breaches
of duty causing damages to [Abbott]. To this court, that
argument is an attempt to improperly switch the bur-
den of proof upon the [trustees] to prove that they did
not breach their duties as trustees. That argument also
ignores that, prior to 2005, the trustees[’] only obligation
was to keep [Abbott] “reasonably informed” absent a
reasonable request by [Abbott] for a more thorough state-
ment of the accounts of the trust. . . . The court believes
that in this circumstance, the annual K-1 was adequate to
keep [Abbott] reasonably informed of the trust in order
for [Abbott] to protect her interests. The fact that records
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 369
Cite as 21 Neb. App. 353prior to 2002 have been destroyed when [Abbott] never
requested them, does not prove a breach of the trustees’
duties. The burden, therefore, remains with [Abbott] to
prove any alleged breaches of duty.
It is clear from that order that the trial court did not fail to
shift the burden of proof, but instead determined that Abbott
had not met her initial burden of proof as she alleges and, as
such, that the burden never shifted to the trustees. This assign-
ment of error is without merit, but leads us into Abbott’s next
assignment of error.
2. Trust Accounting
Abbott assigns that the trial court erred by dismissing her
complaint because she failed to establish her burden of proof.
Abbott contends that the trustees did not provide any account-
ings to the beneficiaries at any time from 1976 through 2009.
In order to more efficiently address the merits of this issue, we
have broken down the analysis into three relevant time periods:
1976 through June 1, 2002; June 1, 2002, through December
31, 2004; and 2005 through 2009.
(a) 1976 through June 1, 2002
The first time period during which Abbott contends that no
accountings were made is from 1976, when the will came into
effect, through Rolf William’s death on June 1, 2002.
The first component of Abbott’s argument for this time-
frame is that the trustees admitted that no accountings were
made during this time. John and Mamie admitted that no doc-
uments prior to 2002 could be found because they had been
destroyed by the banks and accountants managing the trust.
Mamie testified that she could not remember what informa-
tion she had forwarded to the accountant and bank and could
not remember whether any information, or what information,
was distributed to beneficiaries. From 1976 through 1982, the
income beneficiaries, aside from Bessie, were also trustees. In
1982, Edward passed away and John became a trustee. Aside
from Abbott, no beneficiary testified or was involved in the
proceedings, and thus, the record is devoid of any informa-
tion regarding what any of the other beneficiaries may or may
Decisions of the Nebraska Court of Appeals
370 21 NEBRASKA APPELLATE REPORTS
not have received during the time at issue. Abbott testified
that she did not receive information or distributions from
the trust until she became a beneficiary in 2002, when Rolf
William died.
Abbott alleged that there had not been a proper accounting
for the trust by virtue of the lack of any documentation from
1976 through 2002, at which time the burden shifted to the
trustees to show to the contrary. The testimony and evidence
presented at trial are clear that the trustees could not produce
evidence of recordkeeping for the trust through 2002, aside
from some banking statements and documents involving the
purchase agreement and extension agreement. The trustees
could not provide an adequate accounting of the trust from
1976 through 2002 and, therefore, breached their duty to
inform and report.
Neb. Rev. Stat. § 30-3890 (Reissue 2008) provides that the
remedy for a trustee’s violating a fiduciary duty ranges from
compelling the trustee’s performance to monetary redress to
restoring the trust. See, also, Restatement (Third) of Trusts
§ 83, comment a(1). at 204 (2007) (trustee who fails in duty to
keep proper records “is liable for any loss or expense resulting
from that failure”).
These possible remedies lead us directly to the central com-
ponent of Abbott’s argument that, beyond the fact that trust
information was never supplied to the beneficiaries, there is no
evidence that John ever made any payments on the purchase
agreement and the extension agreement to the trust. To the
contrary, the information and records regarding the trust from
that time period consist mainly of information regarding the
purchase of the ranch by John. In that regard, Mamie testi-
fied that although she did not have any trust documentation
dating that far back, the information regarding the trust was
available and was forwarded and taken care of by the bank
or account­ nt dealing with the trust. Mamie testified that all
a
of the payments were made by John and that those payments
provided the income for Bessie. John testified that he and his
wife made all the payments on the purchase agreement and
the extension agreement, and bank records indicate that those
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 371
Cite as 21 Neb. App. 353payments were made. The original purchase price of the ranch
was $494,021. A payment of $16,000 was made by John at the
execution of the purchase agreement; $144,000 was paid at
closing; and $334,021 was to be paid in nine annual payments,
with a 10-percent interest rate and a balloon payment of the
unpaid principal and interest on July 1, 1996. The original
purchase agreement was extended by the parties in order to
continue to provide Bessie with an income source in line with
Rolf’s intent to provide for her. Evidence received by the trial
court indicates that on July 11, 1996, the beginning loan bal-
ance on the extension agreement was approximately $209,420.
The record indicates that the payments under the extension
agreement were made each year from 1996 to 2006, at an
8-percent interest rate. Bank statements and canceled checks
indicate that John made those annual payments to the bank
and to the trust. On July 14, 2006, the bank issued a trustee’s
deed of reconveyance for the ranch to John and his wife upon
John’s final payment in accordance with both the purchase
agreement and the extension agreement.
Unfortunately, the underlying issue revealed in these pro-
ceedings, as is the case in many family trust cases, is that
there is animosity between Abbott and John stemming from
the court-approved sale of the ranch to John and the rejection
of Abbott’s offer to purchase, but as far as these proceedings
are concerned, those feelings do not translate into evidence of
nonpayment of the annual payments due by John and his wife.
Therefore, even though the trustees breached their duty to
inform and report during this time period, that breach caused
no damage to the trust and is harmless.
(b) June 1, 2002, through
December 31, 2004
The next time period which we address, which is included
in Abbott’s arguments regarding a lack of accounting by the
trustees, is June 1, 2002, through December 31, 2004. As indi-
cated above, on June 1, 2002, Abbott’s father, Rolf William,
passed away and, by virtue of the trust, Abbott became an
income beneficiary.
Decisions of the Nebraska Court of Appeals
372 21 NEBRASKA APPELLATE REPORTS
Testimony elicited at trial indicates that beneficiaries
received annual schedule K-1 tax forms which provided the
recipient with information such as interest, the beneficiary’s
share of income, and expenses, which Abbott admitted her-
self to receiving and reviewing each year after she became a
beneficiary in 2002, after Rolf William’s death. Abbott testi-
fied that prior to becoming a beneficiary in 2002, she had no
specific knowledge of the trust outside of its existence, and she
explained that Rolf William did not discuss the trust with her
and that she herself had not made any request of the trustees
for any information regarding the trust prior to 2009. This evi-
dence clearly indicates that trust information was distributed
during the timeframe at issue, but it is the sufficiency of that
information that Abbott next calls into question.
As the trial court indicated in its order, prior to the enact-
ment of the Nebraska Uniform Trust Code, the trustees, in their
duty to inform and account to beneficiaries, were required to
keep beneficiaries “reasonably informed” and, upon “reason-
able request,” were required to provide beneficiaries with “a
statement of the accounts of the trust annually.” Neb. Rev.
Stat. § 30-2814 (Reissue 1995). Pursuant to § 30-2814, from
2002, when Abbott became a beneficiary to the trust after Rolf
William’s death, through December 31, 2004, Abbott was rea-
sonably informed of the trust, as she received schedule K-1 tax
forms annually and made no further request for information
regarding the trust. There is also no merit to this portion of
Abbott’s argument.
(c) 2005 through 2009
The final time period which Abbott raises is from 2005
through 2009. Clearly, beneficiaries were receiving informa-
tion regarding the trust through the distribution of schedule
K-1 tax forms, so the question then becomes whether or not
those schedule K-1 tax forms, sent to the beneficiaries each
year in this case, were sufficient to inform pursuant to the
Nebraska Uniform Trust Code from January 1, 2005, forward.
Section 30-3878(a) provides for the trustees’ duty to inform
and report, insomuch as the “trustee shall keep the quali-
fied beneficiaries of the trust reasonably informed about the
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 373
Cite as 21 Neb. App. 353administration of the trust and of the material facts necessary
for them to protect their interests.” Section 30-3878(c) fur-
ther enumerates:
A trustee shall send to the distributees or permissible dis-
tributees of trust income or principal, and to other quali-
fied or nonqualified beneficiaries who request it, at least
annually and at the termination of the trust, a report of
the trust property, liabilities, receipts, and disbursements,
including the source and amount of the trustee’s compen-
sation, a listing of the trust assets and, if feasible, their
respective market values.
Testimony elicited at trial indicates that the schedule K-1
tax form includes information regarding interest, the benefi­
ciary’s share of income, and expenses. However, we cannot
make any further examination of what information is within
the contents of the schedule K-1 tax forms distributed annu-
ally, other than the information testified to by Abbott, because
none of those tax forms are found in the record before the
court. As such, the information in the record regarding the
schedule K-1 tax forms does not appear to be sufficient
within the confines of § 30-3878, as compared to the more
detailed accounting which was filed by the trustees with
the court at the inception of this litigation. That account-
ing provided specific information regarding bank accounts,
investment account growth and transactions, deposits, and
transfers. The accounting also includes a detailed accounting
of various fees, beneficiary and trust distributions, and bank
charges. Therefore, based upon the record before the court,
we conclude that the schedule K-1 tax forms distributed in
2005 through 2008 did not comply with the trustees’ duty to
inform and report as required by § 30-3878, and the trustees
thereby breached their duty to inform and report by not pro-
viding sufficient accountings to the beneficiaries. The trial
court erred by determining that there had been no breach of
duty by the trustees.
Although we find that the trustees breached their duty to
inform and report, based upon the record in this case, we
nonetheless find that the trial court did not err by dismissing
Abbott’s complaint. As discussed above, § 30-3890 provides
Decisions of the Nebraska Court of Appeals
374 21 NEBRASKA APPELLATE REPORTS
the trial court with a list of possible options to remedy a breach
of trust, which includes, in subsection (b)(4), to “order a trustee
to account.” We find no error in the trial court’s dismissal,
because the trustees’ breach was cured once the accounting
information was filed with the court. The submitted account-
ing, as indicated above, reveals all of the trust actions and more
fully complies with § 30-3878. Thus, even though the county
court erred by finding that there had been no breach of the
trustees’ duty to inform, that error was harmless, as the breach
has been cured.
Furthermore, the record in this case does not support
Abbott’s assertions that the trustees’ breach caused monetary
damages to the trust. We agree with the trial court that the
record indicates that this trust was not a significant income-
producing trust and that although distributions were made to
the beneficiaries, those distributions were minimal in compari-
son to the funds that Abbott alleges existed. The record indi-
cates that tax forms were sent out yearly to the beneficiaries.
The original purpose of the trust, which was clearly laid out
in Rolf’s will, was to provide income for Bessie. The trustees’
actions throughout the life of the trust, including the sale of the
ranch to a trustee, were court approved and prolonged the ben-
efit to Bessie through the extension of the purchase agreement,
the payments under which were all made in accordance with
purchase agreements and extensions with the bank and were
substantiated through bank statements indicating the payments
had been made.
3. Attorney Fees
Abbott argues that the trial court erred by denying her
request for attorney fees, because the trustees failed to dis-
charge their duties to account for the trust.
[2,3] On appeal, a trial court’s decision awarding or deny-
ing attorney fees will be upheld absent an abuse of discre-
tion. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430(2007). 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. Id. “In a judicial proceeding involving the
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 375
Cite as 21 Neb. App. 353administration of a trust, the court, as justice and equity may
require, may award costs and expenses, including reasonable
attorney’s 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 2008).
Having reviewed the record, and based upon the circum-
stances of this case, we conclude that the trial court did not
abuse its discretion by denying Abbott’s request for attorney
fees and we affirm that determination.
VI. CONCLUSION
In sum, we find that the trial court did not improperly
shift the burden to Abbott, but it found that she had not met
her burden to show that the trustees had violated their duty
to report and inform. Upon our review of the evidence, we
find that Abbott met her burden of proof by alleging that she
received no information regarding payments made by John
when Mamie admitted to having no documentation prior to
2002. The burden then shifted to the trustees to show, through
evidence and testimony, that sufficient information was pro-
vided to the trustees and beneficiaries—which they could not.
However, the trust did not suffer any losses due to that breach
and, thus, was harmless. For the time period of 2002 through
2005, the accounting given to the beneficiaries was sufficient.
However, the record indicates that from 2005 until 2009, that
information was insufficient to satisfy the statutory require-
ments and a breach of duty was committed by the trustees,
although that breach was thereafter cured. Thus, we find that
the trial court did not err by dismissing Abbott’s complaint.
Furthermore, we also find that the trial court did not abuse
its discretion by denying Abbott’s request for attorney fees.
Therefore, we affirm.
Affirmed.
Riedmann, Judge, participating on briefs.