Opinion
85927
03-01-2024
IN THE MATTER OF THE ADMINISTRATION OF THE SSJ'S ISSUE TRUST, v. JAMES S. PROCTOR, CPA,CFE,CVA, CFF, IN HIS CAPACITY AS THE APPOINTED TRUSTEE OF THE JAKSICK 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; MICHAEL S. KIMMEL, INDIVIDUALLY AND AS CO-TRUSTEE OF THE SAMUEL S. JAKSICK, JR. FAMILY TRUST; 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; AND WENDY JAKSICK, INDIVIDUALLY, Respondents. IN THE MATTER OF THE ADMINISTRATION OF THE SAMUEL S. JAKSICK, JR. FAMILY TRUST STANLEY JAKSICK, INDIVIDUALLY AND AS CO-TRUSTEE OF THE SAMUEL S. JAKSICK, JR. FAMILY TRUST, AND AS TRUSTEE OF THE SSJ'S ISSUE TRUST, Appellant,
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
This is an appeal from a district court order awarding attorney fees and costs in a trust matter. Second Judicial District Court, Washoe County; David A. Hardy, Judge.
Having considered the parties' arguments and the record, we are not persuaded that the district court committed reversible error. As appellant Stanley Jaksick acknowledges, "[a] district court's order regarding distribution or administration of trust funds will generally not be disturbed unless it clearly demonstrates an abuse of discretion." Hannam v. Brown, 114 Nev. 350, 362, 956 P.2d 794, 802 (1998).
Jaksick takes issue with the district court's order insofar as it authorized payment of roughly $91,000 from the trust's corpus to respondent James Proctor's attorneys before Jaksick's previously incurred attorney fees were paid. In particular, Jaksick claims that no statute authorized the district court to order such a payment priority. However, NRS 164.043 granted the district court such authority. That statute provides that "the court shall allow the trustee his or her proper expenses and such compensation for services as are just and reasonable." NRS 164.043(1). Attorney fees a trustee incurs are a type of "expense," and by referring to "proper expenses," NRS 164.043(1) afforded the district court the discretion to deny Jaksick's request for payment of his attorney fees from the trust's corpus. And, given that the district court would have been within its discretion to outright deny Jaksick's request for payment of his attorney fees, the district court was likewise within its discretion to defer when Jaksick would be paid.
This is consistent with the prevailing view that a court has the discretion to deny a trustee's request for payment of attorney fees from the trust's corpus when the fees were not incurred for the benefit of the trust. See George Gleason Bogert, George Taylor Bogert, & Amy Morris Hess, Bogert's The Law of Trusts and Trustees § 871 & n.48 (2023) (observing that a court has discretion to consider whether a party's request for fee reimbursement "benefitted or enhanced the trust estate," and compiling cases to that effect); Restatement (Third) of Trusts § 88 (Am. L. Inst. 2007) ("A trustee can properly incur and pay expenses that are reasonable in amount and appropriate to the purposes and circumstances of the trust. . . ."); see also In re Guardianship of Bloom, 295 So.3d 1255, 1259 (Fla. Dist. Ct. App. 2020) ("When a trustee seeks to charge a trust corpus with an expense incurred by him, including attorney fees, the burden of proof is upon the trustee to demonstrate that the expense . . . was incurred for the benefit of the trust, and not for his own benefit nor the benefit of others."); Kronzer v. First Natl Bank of Minneapolis, 235 N.W.2d 187, 196 (Minn. 1975) ("It is clear that a trustee may recover attorneys fees only where those fees are incurred in rendering a benefit to the trust estate.").
Additionally, although Jaksick contends that the district court did not provide factual findings to support its prioritization decision, the district court, in various hearings, reiterated its belief that Jaksick incurred his attorney fees in furtherance of his dispute with respondent Todd Jaksick and not in furtherance of the trust's best interests. Cf Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev. 635, 643 n.l, 289 P.3d 201, 206 n.l (2012) (recognizing that a district court's oral findings may be used to supplement findings that are absent from a written order). Accordingly, the district court was within its discretion in ordering the payment of Proctor's attorney fees before Jaksick's outstanding fees were paid. We therefore ORDER the judgment of the district court AFFIRMED.
Stiglich J., Pickering J., Parraguirre J.
Hon. David A. Hardy, District Judge
David Wasick, Settlement Judge