In Re: Admin. Of The Ssj'S Issue Tr.

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 81470
ADMINISTRATION OF THE SSJ'S
ISSUE TRUST,
IN THE MATTER OF THE
ADMINISTRATION OF THE SAMUEL
S. JAKSICK, JR. FAMILY TRUST.
FILED
)UN 2 2 2022
TODD B. JAKSICK, INDIVIDUALLY
AND AS CO-TRUSTEE OF THE
SAMUEL S. JAKSICK, JR. FAMILY
TRUST, AND AS TRUSTEE OF THE
SSJ'S ISSUE TRUST; MICHAEL S.
KIMMEL, INDIVIDUALLY AND AS CO-
TRUSTEE OF THE SAMUEL S.
JAKSICK, JR. FAMILY TRUST; KEVIN
RILEY, INDIVIDUALLY AND AS
FORMER TRUSTEE OF THE SAMUEL
S. JAKSICK, JR. FAMILY TRUST, AND
AS TRUSTEE OF THE WENDY A.
JAKSICK 2012 BHC FAMILY TRUST;
AND STANLEY JAKSICK,
INDIVIDUALLY AND AS CO-TRUSTEE
OF THE SAMUEL S. JAKSICK, JR.
FAMILY TRUST,
Appellants/Cross-Respondents,
vs.
WENDY JAKSICK,
Res t ondent/Cross-Ai iellant.
ORDER OF AFFIRM_ANCE
This is an appeal and cross-appeal in a trust matter. Second
Judicial District Court, Washoe County; David A. Hardy, Judge.'
"The Honorable James W. Hardest.y, Justice, voluntarily recused
SUPREME COURT himself from participation in the decision of this matter.
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Samuel S. Jaksick (Sam) established two trusts—the Samuel S.
Jaksick Jr. Family Trust and the Issue Trust—for the benefit of his three
children: Todd, Stanley (Stan), and Wendy. Todd and Stan (appellants and
cross-respondents) serve as co-trustees of the Family Trust. Michael S.
Kimmel (appellant and cross-respondent) is the other co-trustee for the
Family Trust, having replaced Kevin Riley (appellant and cross-
respondent), who temporarily served in that capacity following Sam's death.
Todd is the sole trustee for the Issue Trust. Wendy (respondent and cross-
appellant) is not a trustee. After Sam's death, disputes arose among the
three siblings regarding the trusts administration. Consequently, Todd
and Kimmel petitioned to approve accountings for the Family Trust and to
approve multiple agreements. Todd filed a separate petition seeking the
same relief for the Issue Trust. Wendy filed objections and counter-
petitions against Todd, Kimmel, and Riley (collectively, the Trustees) in
their capacities as trustees and individuals, and against Stan in his capacity
as trustee. Stan also filed objections against Todd, and Todd filed a counter-
petition against Stan.
The district court bifurcated the proceedings and held a jury
trial on the legal claims and a bench trial on the equitable claims. Just
before the jury trial, Stan and Todd settled their dispute, leaving only
Wendy against Todd, Kimmel, and Riley. During the jury trial, the district
court denied Wendy's motion to admit Stan's and Todd's settlement
agreement into evidence. The jury generally found for Todd in his
individual capacity and the other trustees in their capacities as individuals
and trustees but found for Wendy on her breach of fiduciary duties claim
against Todd as trustee for both trusts. The jury awarded Wendy $15,000
in damages for Todd's breach. The parties stipulated to allowing the district
court to determine their equitable claims through submitted briefs in
SUPREME COURT
addition to the jury trial exhibits. The court entered an order after the
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equitable trial declining to confirm the accountings or agreements;
disgorging Todd of his trustee fees; ordering the trusts to pay the Trustees'
attorney fees but requiring Todd to reimburse the trusts for 25 percent of
those fees; denying Kimmel's and Riley's requests for costs (in either
capacity) and attorney fees in their individual capacities; and awarding
Wendy $300,000 in attorney fees. The Trustees, Todd, and Stan appealed,
and Wendy filed a cross-appeal. We begin by addressing Wendy's
arguments, after which we address the Trustees and Todd's arguments.2
Wendy's arguments
Wendy first argues that the district court abused its discretion
by relying on the jury verdict as a basis to deny some of her equitable claims.
We review a district court's decision to grant equitable relief for an abuse of
discretion. Am. Sterling Bank v. Johnny Mgmt. LV, Inc., 126 Nev. 423, 428,
245 P.3d 535, 538 (2010). A district court abuses its discretion if its
"decision is not supported by substantial evidence," which is evidence that
"a reasonable mind might accept as adequate to support a conclusion." Otctk
Nev., LLC v. Eighth Judicial Dist. Court, 129 Nev. 799, 805, 312 P.3d 491,
496 (2013) (internal quotation marks omitted).
The record shows that the district court carefully considered
over 17,000 pages of information to resolve this two-year case and
independently evaluated the evidence when ruling on Wendy's equitable
claims. Although the district court made several rulings in Wendy's favor,
such as declaring that she did not violate the no-contest provision,
disgorging Todd of his trustee fees, and granting her attorney fees, it also
expressly found that Wendy was overly zealous and appeared driven by
greed and an inflated sense of entitlement. We have carefully reviewed the
2Stan only challenges Wendy's attorney fees award on appeal. We
SUPREME COURT consider his arguments along with the Trustees' arguments on that issue.
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record and conclude the district court's decision not to award Wendy further
equitable relief is supported by substantial evidence, which shows Wendy's
requested damages were an overreach in light of the amount awarded by
the jury and the value of the trusts res. We therefore conclude that the
district court correctly relied on the underlying basis for the jury's verdict
in denying some of Wendy's claims for equitable relief.
Wendy next argues that the district court abused its discretion
by not further continuing the trial to permit her to conduct additional
discovery.3 "We review the district court's decision on a motion for
continuance for an abuse of discretion." Bongiovi v. Sullivan, 122 Nev. 556,
570, 138 P.3d 433, 444 (2006). The district court delayed the trial for about
nine days to allow Wendy to review new discovery documents, and Wendy
additionally had the duration of the jury trial to review the discovery and
prepare for the equitable trial held three months later. Wendy does not
explain how the continuance or additional discovery would have made a
difference in the jury's verdict. Moreover, the record demonstrates that
Wendy engaged in dilatory discovery tactics, and this supports the district
court's determination that a trial continuance was not warranted. See NRS
16.010 (explaining a party's failure to diligently procure discovery will
weigh against granting that party's motion for a continuance). Thus, we
conclude that the district court did not abuse its discretion on this issue.4
3Wendy also asserts that a longer continuance was warranted because
Todd and Stan settled just before trial. However, Wendy does not cogently
argue this position and we decline to address it. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(providing that we need not consider issues not adequately briefed, not
supported by relevant authority, and not cogently argued).
4We are not persuaded by Wendy's arguments regarding the late
SUPREME COURT production of records, and we note Wendy had a sufficient amount of time
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Lastly, Wendy argues that the district court abused its
discretion by awarding costs and attorney fees to Todd in his individual
capacity.5 We review an award of attorney fees and costs for an abuse of
discretion. MEI-GSR Holdings, LLC v. Peppermill Casinos, Inc., 134 Nev.
235, 244, 416 P.3d 249, 258 (2018). Costs must be given to the prevailing
party in an action for money or damages where the plaintiff seeks more than
$2,500. NRS 18.020(3). Where a party makes an offer of judgment, and the
offeree rejects the offer and thereafter fails to obtain a more favorable
judgment at trial, the offeree must pay reasonable attorney fees, if allowed,
incurred from the time of the offer. NRCP 68(0(1)(B). To award fees
•
"[u]nder NRCP 68, the district court must first consider the Beattie factors,"
and if attorney fees are warranted under Beattie, the court must also
consider the Brunzell factors to determine whether the requested amount
is reasonable and justified. Peppermill, 134 Nev at 245, 416 P.3d at 258.
We determine that costs were properly awarded because Todd
in his individual capacity made an offer of judgment for $25,000 that Wendy
rejected, the jury thereafter found in favor of Todd individually, Wendy
failed to obtain a more favorable judgment against Todd individually at
trial, and Todd individually was a prevailing party entitled to his
reasonable costs pursuant to NRCP 68(0. We further conclude that the
district court's findings on the Beattie and Brunzell factors are supported by
the record. Thus, we conclude that the district court did not abuse its
to prepare for the bifurcated equitable bench trial despite the late
production.
5We are not persuaded by Wendy's argument that the settlement
agreement should have been admitted during the jury trial. See Banks ex
rel. Banks v. Sunrise Hosp., 120 Nev. 822, 844, 102 P.3d 52, 67 (2004) ("Mil
order to prevent improper speculation by the jury, the parties may not
SUPREME COURT inform the jury as to either the existence of a settlement or the sum paid.").
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discretion by awarding Todd, in his individual capacity, attorney fees and
costs.6
Trustees arguments
The Trustees argue that the district court abused its discretion
by denying each of Riley's and Kimmel's requests for costs and attorney fees.
We disagree. An attorney fees award under NRS 18.010(2)(b) or NRS 7.085
was not warranted because the record shows that Wendy's claims against
Riley and Kimmel as individuals were not unreasonable, groundless, or
brought to harass the trustees. The record demonstrates there were
problems with the trust accountings and that it was not clear who of the
Trustees was responsible for the poor preparation and upkeep of the trust
accountings. Moreover, because the district court ordered the trusts to pay
all of the fees incurred for the trustee& representation in this action, it
follows that unless Kimmel and Riley point to additional attorney fees the
trusts had not previously been ordered to pay, there were no further fees to
award. But Kimmel and Riley did not delineate any such fees below nor
argue on appeal that any such fees exist.
Regarding costs, the district court awarded costs to Todd as an
individual and later concluded that Kimmel and Riley were not similarly
entitled to a costs award (in either capacity) where their representations in
both capacities overlapped with Todd's. Where there are multiple
prevailing defendants, the district court must attempt to apportion the costs
and, if it cannot do so, it must make specific findings as to why
apportionment is impracticable. See Detwiler v. Eighth Judicial Dist.
Court, 137 Nev. 202, 213, 486 P.3d 710, 720 (2021); Mayfield v. Koroghli,
124 Nev. 343, 353, 184 P.3d 362, 368-69 (2008). The record shows the
6We have considered the record in light of the relevant law and
SUPREME COURT conclude Wendy's other arguments on this issue are without merit.
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trustees joint defenses were so intertwined as to make apportionment
impracticable, and we therefore conclude that the district court's finding
that the Trustees' representation costs overlapped is supported by the
record.7 Thus, we conclude that the district court did not abuse its
discretion on this issue.
The Trustees next argue that the district court abused its
discretion by awarding attorney fees to Wendy.8 In awarding fees to Wendy,
the district court cited NRS 153.031(3)(b), which grants the district court
the discretion to order a trustee to pay another party's reasonable attorney
fees if the trustee breached his or her fiduciary duties and "such additional
relief is appropriate to redress or avoid an injustice." In its order, the court
stated that "[t]he nature of the accountings influence[d] [its] decision
regarding attorneys' fees and the no-contest provisions of the trust." The
court also noted that it "was particularly troubled by the notary's abdication
of statutory responsibilities, which was an influencing fact in the litigation
Wendy pursued."
We determine that the record supports the district court's
finding that the accountings did not provide Wendy with proper notice of
her interests as beneficiary. The record demonstrates that there was much
uncertainty about the debt and value of the trusts because the scope of
Todd's indemnification agreement was unclear, and the accountings had
•7For example, many of Kimmel's and Riley's attorneys' entries in their
memoranda of costs involve Todd, indicating his primary role in this matter
and the lesser roles of Riley and Kimmel. Todd testified that he depended
on others, including Riley, for his actions as trustee and the preparation of
some trust documents and accounting, which demonstrates how entangled
their defense was at trial. Notably, too, the trustees concede that their
representation substantially overlapped with Todd's.
8We have carefully considered Stan's additional arguments and
SUPREME COURT conclude they are without merit.
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many hyphens where there should have been numerical values, thereby
precluding a clear calculation of the trusts debts. Additionally, the record
further supports the court's finding that the notary's conduct fell below the
statutory standard because there was testimony indicating that the notary
did not keep records that she was supposed to keep. And the jury found
Todd breached his fiduciary duties. Accordingly, we agree that the poor
state of the trust accountings and the notarial negligence were harms or
injustices that warranted awarding attorney fees to Wendy under NRS
153.031(3), and therefore we conclude the district court did not abuse its
discretion.9
Todd's arguments
Todd argues that the district court abused its discretion by
disgorging him of his trustee fees and requiring him to personally reimburse
the trusts for a quarter of the Trustees' attorney fees paid by the trust.
Under NRS 153.031(3)(a), a court has the discretion to "[o]rder a reduction
in the trustee's compensation" to "redress or avoid an injustice." Under NRS
153.031(3)(b), a court has the discretion to order a trustee to personally pay
for another party's reasonable attorney fees if the trustee breached his or
9We are not persuaded that the district court's award of $300,000 was
unreasonable. The record shows that the district court reviewed over 300
substantive pleadings and 227 exhibits during this two-year-long case. The
parties engaged in extensive discovery and Wendy was successful in at least
one of her legal claims, demonstrating her attorneys' skill in this
complicated case. Additionally, Wendy provided the supporting
documentation for her attorney fees. See Shuette v. Beazer Homes Holdings
Corp., 121 Nev. 837, 864-65, 124 P.3d 530, 549 (2005) (providing that when
awarding attorney fees, the district court must consider the Brunzell factors
to determine the reasonable amount to be awarded); see also Logan v. Abe,
131 Nev. 260, 266, 350 P.3d 1139, 1143 (2015) (explaining express findings
on the Brunzell factors are preferred but not necessary where the record
demonstrates the court considered those factors and the award is supported
SUPREME COURT by substantial evidence).
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her fiduciary duties and "such additional relief is appropriate to redress or
avoid an injustice." For the reasons set forth above, we conclude that
ordering Todd to disgorge trust fees was appropriate to redress the poor
accountings and notarial negligence pursuant to NRS 153.031.
Additionally, because the jury found that Todd breached his fiduciary duties
to Wendy, the district court properly held Todd personally liable for a part
of the Trustees attorney fees under NRS 153.031(3)(b). Thus, we conclude
that the district court did not abuse its discretion by disgorging Todd of his
trustee fees and ordering him to pay part of the Trustees' attorney fees.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
ak....aisatramanum C.J.
P rraguirre
J.
Stiglich
J.
Cadish
LLjt.m)
Silver
J.
J.
Pickering
114111-21".
Herndon
J.
SUPREME COURT
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cc: Hon. David A. Hardy, District Judge
David Wasick, Settlement Judge
Maupin. Cox & LeGoy
McDonald Carano LLP/Reno
Robison, Sharp, Sullivan & Brust
Kreitlein Law Group
Marquis Aurbach Coffing
Spencer & Johnson PLLC
Washoe District Court Clerk
SUPREME COURT
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