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Tamra Acorn, Rebecca Shwen, and Federer Holding Company, LLC, a Wyoming close limited liability company v. Lori Moncecchi and Dino Moncecchi
Citation: 2016 WY 124Docket: S-16-0099
Court: Wyoming Supreme Court; December 21, 2016; Wyoming; State Supreme Court
Original Court Document: View Document
The Supreme Court of Wyoming is addressing multiple appeals stemming from disputes among family members over estate management following the marriage of M. W. Bud Federer and Margie Federer. The couple accumulated substantial assets, primarily apartment complexes, and created various entities for their management. Tensions arose among their three daughters regarding financial matters, leading to accusations of misconduct related to their roles as trustees and LLC managers. The district court conducted a bench trial to resolve the claims and counterclaims, resulting in a mixed ruling. Key issues on appeal include: 1) the court's jurisdiction over the appeals due to the finality of the judgment, 2) whether Dino Moncecchi breached his fiduciary duties to Federer Holding Company, LLC, 3) the justification for Rebecca Shwen's removal as trustee of the Margie Jean Federer Revocable Trust, 4) the application of burden of proof in determining damages for Rebecca's alleged breach of fiduciary duty, and 5) the appropriateness of attorney fees awarded to counter claims against Rebecca for frivolous actions. The court affirms some district court rulings while reversing and remanding others for further consideration. Bud, a successful businessman in Wyoming, died in 2003, leaving behind his wife Margie, who was diagnosed with Alzheimer’s disease in 2010 and moved to an assisted living facility in 2011. The family established several entities to manage their business interests and estate, including Spartan Management, LLC (Spartan), Federer Holding Company, LLC (FHC), and the Margie Jean Federer Revocable Trust (MJFRT). The Federer family’s assets comprise nine low-income apartment complexes managed under HUD regulations, each operating as separate limited liability partnerships owned by various trusts. Spartan was created in 1972 to manage these complexes, with Bud hiring Dino Moncecchi in 1993, who later married Lori, Bud's daughter. In 1995, Spartan became an LLC, with Dino as its manager. The Moncecchis ultimately acquired 65% ownership of Spartan, while the Marital Trust owned the remaining 35%. FHC was established in 2006 to act as the general partner of the apartment partnerships, ensuring management continuity and liability protection. Under Dino’s management, Spartan continued operating the complexes without competitive bidding for management fees, which were set by prior HUD contracts. Dino’s management of Spartan included traditional property management tasks, along with additional responsibilities, such as regulatory compliance and financial oversight. Spartan also operated laundry facilities within the complexes, generating significant income. Margie established the MJFRT, initially serving as trustee until 2010 when her daughters took over. By December 2010, Rebecca became the sole trustee after Lori and Tamra resigned. The trial included extensive evidence regarding Rebecca's actions as trustee, although only pertinent points were discussed in relation to the appeal. Margie, while serving as trustee of the MJFRT, issued six loans (known as the Acorn debt) to her daughter Tamra, her husband David, and their business entities between 2000 and 2005. The trust stipulates that any unpaid loans will be deducted from the heir’s distribution of trust assets upon Margie's death. As of December 2010, the total outstanding amount for these loans was $1,202,079, comprised of $881,360 in principal and $320,719 in interest. In November 2010, a meeting was held among Margie's three daughters, Dino, and their attorney Mr. Leonard to address the Acorn debt and its potential tax implications for Margie’s estate. They concluded that declaring the debts uncollectible could lower the estate's value and, therefore, the estate tax upon Margie's death. Following this meeting, the MJFRT issued demand letters for repayment, stating that failure to respond would result in the debts being deemed uncollectible. Five of the six loans were subsequently declared uncollectible, and 1099-C forms were filed with the IRS. The sixth debt was settled by transferring 8.44% of Tamra’s interest in T.F.S. II, L.L.C. to the MJFRT. In September 2012, Rebecca, the new trustee, loaned Tamra $26,000, which was repaid in two installments in 2013, but it appears no interest was paid on this loan. Margie also made a personal loan of $82,658 to the Moncecchis. Historically, Margie made annual gifts of MJFRT assets to her family, a practice continued by Rebecca. In March 2014, Rebecca made gifts to herself, Tamra, and other family members but delayed a gift to Lori for over eight months, only giving it in December. When asked about the delay, Rebecca cited no particular reason but acknowledged that her disagreements with Lori likely influenced her decision. Rebecca served as trustee of the MJFRT, handling accounting, bookkeeping, personal care for Margie, and preparing Margie’s home for sale. From 2012 until May 2014, she compensated herself $3,000 monthly for her services, totaling payments of $13,656 in 2011, $31,131 in 2012, $39,750 in 2013, and $15,000 in 2014. An accounting expert valued her bookkeeping services at $1,560 to $2,160 annually, but no evidence was presented regarding the value of her other duties. The Moncecchis initiated a lawsuit against Rebecca, alleging breaches of fiduciary duty and seeking her removal as trustee, damages for the trust, and a declaratory judgment on their authority to appoint themselves as managers of FHC. In response, Rebecca counterclaimed for payment on a note executed by the Moncecchis in favor of the trust and alleged that Dino breached his duties by hiring Spartan for property management. The district court ruled that Rebecca breached her fiduciary duties, justifying her removal as trustee, while the Moncecchis failed to prove damages. It found that the Moncecchis were not in default on their loan and deemed their counterclaim frivolous. Additionally, the court ruled that Dino did not breach his duties to FHC. The Moncecchis did not receive a ruling on their accounting claim against Rebecca and MJFRT. On appeal, the Moncecchis argued that the burden of proof for damages rested on Rebecca and sought attorney fees. Conversely, Rebecca and MJFRT contended that her removal was unwarranted and that the burden of proof was correctly placed on the Moncecchis, while Rebecca and Tamra claimed the court's conclusion regarding Dino’s duties was erroneous. Following a bench trial, a district court’s factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. Factual findings have a presumption of correctness but can be examined in light of the entire record. An appellate court does not re-weigh evidence or assess witness credibility, and findings will only be set aside if clearly erroneous—defined as a situation where the court is firmly convinced that a mistake has occurred. An appellate court assumes the prevailing party's evidence is true and draws reasonable inferences in their favor. In determining jurisdiction for appeals, the court must confirm that the order is final and appealable. The February 12, 2016 Judgment included the district court’s Findings of Fact and Conclusions of Law, ruled in favor of Lori and Dino, and dismissed Rebecca as trustee, indicating a new trustee would be appointed later. Although the Judgment did not address the Moncecchis’ claim for an accounting, the court assessed whether the Judgment affected a substantial right and resolved all outstanding issues. The Moncecchis failed to present evidence or arguments concerning the accounting during the trial and did not claim error on appeal. Consequently, the court inferred that the Moncecchis had obtained the necessary information regarding the trust’s accounts and concluded that the unresolved accounting claim did not impact the finality of the Judgment. The appointment of a new trustee, as reserved by the district court, does not affect the finality of the Judgment. Typically, a judgment is final and appealable, even if further administrative actions are required. While there is no strict formula to assess finality, judgments that retain jurisdiction for ministerial orders can still be considered final, especially if they resolve the claims and provide the relief sought. In this case, the district court resolved the claim for the removal of Rebecca as trustee and ordered the parties to agree on a neutral successor. If no agreement is reached, the court will appoint a trustee. Although the Judgment does not name a trustee, it states that one will be selected in accordance with prior findings, which are part of the Judgment. The selection process for a new trustee is deemed a ministerial function and does not hinder the Judgment's finality, thus making it appealable. Regarding Dino Moncecchi's fiduciary duties to Federer Holding Company, LLC (FHC), the court addresses whether he breached these duties by not soliciting competitive bids for property management or by appropriating business for Spartan. FHC claims that Dino's failure to seek bids constitutes a breach of his statutory and contractual obligations, specifically the duty of good faith and fair dealing owed to the LLC. While limited liability companies allow for flexibility, managers are still bound by fiduciary duties, which include acting with care and disinterest. FHC argues that Dino’s inaction violated these duties, yet it fails to provide legal authority supporting the requirement for soliciting competitive bids prior to entering agreements. Dino Moncecchi was found by the district court not to have breached his duty of good faith and fair dealing towards FHC by continuing to use Spartan as the management company for the apartment complexes. The court credited Dino's testimony regarding Spartan's comprehensive asset management services, which included needs assessments, insurance claim negotiations, and lobbying efforts—activities that exceed standard management services. FHC did not challenge these claims during cross-examination, suggesting an implicit concession of Dino's role. However, a potential conflict of interest arose from Dino's partial ownership of Spartan, necessitating an examination of whether Dino engaged in self-dealing by favoring Spartan's management. Wyoming statutes on limited liability companies prohibit managers from engaging in transactions with entities where they have an adverse interest unless they can demonstrate that such transactions are fair to the company. The burden of proof shifted to Dino to establish the fairness of his arrangement with Spartan. The district court acknowledged the potential conflict but ultimately ruled that Dino's continued engagement of Spartan was fair to FHC. This conclusion was partly based on the shared ownership dynamics, which meant that benefits to Spartan also accrued to other FHC owners, Rebecca and Tamra. FHC contested this rationale, arguing it was contrary to law, but did not provide supporting legal authority. The Wyoming Limited Liability Company Act’s fairness doctrine was cited as relevant to these proceedings. A defense exists against claims under Wyo. Stat. Ann. 17-29-409(e) and similar equity claims if the transaction is fair to the limited liability company (LLC). Managers are permitted to conduct business with the LLC as long as the terms are fair. The court clarified that fairness must be evaluated concerning the LLC itself, rather than the interests of individual beneficiaries, such as Rebecca and Tamra, who benefit from an owner of a related entity, Spartan. Evidence presented supported that the fees charged by Spartan for managing the apartment complexes were reasonable, thereby affirming the fairness of the transaction. Wyoming's Limited Liability Company Act states that the operating agreement governs the rights and duties of managers. If the operating agreement provides specific terms, those terms take precedence, though it cannot eliminate the obligation of good faith and fair dealing. The FHC Operating Agreement allows Dino, as manager, to contract with entities he owns or is affiliated with, including Spartan. It explicitly states that managers are not restricted to managing the company exclusively and may pursue other business interests without breaching fiduciary duties. Consequently, the agreement permits Dino to engage Spartan in managing FHC's properties. The attorney who drafted the FHC limited liability documents indicated that the management structure for the properties would remain unchanged, appointing Dino as manager for continuity. Dino's management of the apartment complexes through Spartan, an entity he owns, does not amount to self-dealing or a breach of fiduciary duties according to the operating agreement. FHC failed to demonstrate that this arrangement violated Dino’s duty of loyalty or good faith, and the district court's finding that Dino's actions were not in breach was upheld as not clearly erroneous. FHC contended that Dino breached his fiduciary duty by appropriating business opportunities, specifically through Spartan retaining HUD incentive fees and operating laundry facilities in the apartment complexes. The duty of loyalty requires the manager to account for any benefit derived from company opportunities. Courts have established that this duty includes avoiding competition detrimental to the corporation's interests. To prove a breach through appropriation, FHC must show it had an actual or expected interest in the opportunity and the financial capacity to pursue it. Merely showing that an opportunity is valuable is insufficient; there must be a practical basis for the expectation. Regarding the HUD incentive fees, FHC relied on a limited exchange of testimony to claim a breach of loyalty, confirming that the agreements allowed property owners to decide on the distribution of these fees, which were indeed paid while Dino managed both FHC and Spartan. Spartan received the incentive performance fees based on an agreement established during the initial refinancing in 2004, prior to the formation of FHC. Dino maintained that under his management of FHC, he adhered to the terms of previous management contracts and did not expect to receive HUD fees that were designated for Spartan, thus he did not breach his fiduciary duty. The court found that Spartan’s management of the laundry facilities did not constitute a breach of loyalty, as these facilities were established before Dino's involvement and were operated under a pre-existing agreement with property owners. Consequently, there was no expectation for FHC to manage them, affirming that Dino upheld his fiduciary obligations. The district court's conclusion that FHC did not prove damages is not addressed since the breach of fiduciary duties was not established. Additionally, the district court determined that Rebecca Shwen breached her fiduciary duty as trustee of the Margie Jean Federer Revocable Trust (MJFRT) by making an improper loan, overpaying herself, and delaying a gift, warranting her removal. Rebecca acknowledges her breach regarding the Moncecchi loan but disputes the other claims, arguing they are insufficient for her removal. The standards for a trustee's conduct are guided by both the trust's provisions and Wyoming statutes, which stipulate that a trustee's duties extend beyond mere good faith unless specifically limited by the trust terms. The MJFRT provisions offer indemnity for good faith actions, paralleling previous rulings on trustee responsibilities. “Good faith” is defined as adherence to a common purpose and alignment with the reasonable expectations of the other party, excluding conduct deemed as ‘bad faith’ that violates standards of decency, fairness, or reasonableness. This standard does not negate other fiduciary obligations under Wyoming statutes. Specifically, Rebecca was obligated to act in good faith and uphold the trustee's duty of loyalty, which mandates that a trustee manage trust assets solely in beneficiaries' interests and act impartially among beneficiaries. The district court found that Rebecca breached her fiduciary duty by approving a $26,000 loan to Tamra, who had previously defaulted on prior loans from the trust. This decision was seen as lacking impartiality, especially when compared to her actions regarding another beneficiary, Lori, who made regular payments. Although Tamra eventually repaid the principal (without interest), the court maintained that this did not rectify Rebecca's imprudent decision to issue the loan. Rebecca contested the district court’s ruling on three grounds: the inconsistency in the court's treatment of her reliance on counsel for different loans, the assertion that interest was not paid, and the claim that uncollectible loans would be deducted from Tamra's share of trust distributions. The court found that despite Rebecca's arguments, the evidence supported the conclusion that she breached her duties regarding the loan to Tamra. Previous transactions she engaged in, which the court deemed appropriate due to her seeking legal advice, were complex and well-documented, involving thorough preparations and consultations with attorneys and accountants. Rebecca's evidence of consulting Mr. Leonard, the attorney for the Trust, regarding a loan to Tamra is limited to her statement that he did not respond in writing. There is no clarity on whether Mr. Leonard supported or opposed the loan, nor if the consultation addressed the loan's potential consequences beyond just drafting documents. The question of whether Tamra paid interest on the loan is irrelevant to assessing whether Rebecca breached her duty by granting the loan. Despite Rebecca's claims of interest payments, the district court found otherwise, and its findings are upheld unless proven unsupported or legally erroneous. The loan agreement required twelve monthly payments starting February 1, 2013, at 3.65% interest, but Tamra made no payments until April 2013, by which time over $587 in interest had accrued. A subsequent check purportedly for interest, dated over a year later and for $172.13, lacked a reference to the loan. Furthermore, while the principal of uncollectible Acorn loans will still be deducted from Tamra’s share of MJFRT distributions upon Margie's death, this does not justify the prudence of another loan to Tamra, who had a history of poor repayment. The district court noted the imprudence of lending to someone with such a track record, emphasizing the risk to the trust, particularly regarding estate taxes if the loan remained unpaid upon Margie's death. Rebecca’s loans to Tamra highlighted her lack of impartiality compared to her actions regarding loans to other beneficiaries, such as Lori and Dino, who were making timely payments. The district court concluded that Rebecca's decision to lend to Tamra constituted a breach of her statutory duties to act impartially in the interest of the trust beneficiaries. Additionally, the court determined that Rebecca overpaid herself for her services and misused trust funds, thus breaching her fiduciary duties to the MJFRT. Rebecca argues that the district court's opinion negatively influenced its assessment of her compensation related to the trust, contending that an institutional trustee would charge significantly more than her fees. She highlights expert testimony indicating uncertainty about the time spent on tasks beyond bookkeeping to support her claim of reasonable fees. However, the court's conclusion is upheld by the record, which states that the MJFRT allows a trustee to receive a "reasonable trustee fee" but does not permit compensation for personal care of beneficiaries. Rebecca testified that she spent approximately 30-35 hours per week on personal care and about five hours on trust business activities. The court did not consider institutional trustee fee comparisons, as this evidence was not introduced at trial. From 2012 to May 2014, Rebecca paid herself $3,000 monthly, totaling $85,881. An accounting expert suggested that reasonable fees for her bookkeeping services would range from $1,560 to $2,160 annually, corroborated by another accountant's estimate of an additional $1,500 to $2,000 yearly for similar work. The district court found Rebecca’s fees to be unreasonable and unsupported by time spent on caregiving, as the trust does not allow such compensation. Additionally, it deemed her use of trust funds for dining expenses of $1,421.59 inappropriate, concluding it breached her fiduciary duties. The court also addressed Rebecca's delay in gifting to Lori, citing it as a lack of impartiality and evidence of bad faith in administering the trust. These findings by the district court were not deemed clearly erroneous. Rebecca contends on appeal that the Moncecchis' complaint fails to allege a violation of her fiduciary duties regarding actions that occurred after the lawsuit was filed, arguing that they could not have anticipated these issues at that time. She further claims that mere hostility between a trustee and a beneficiary is insufficient to justify her removal as trustee. However, the Moncecchis submitted a First Amended Complaint on February 20, 2015, after the contested conduct occurred, which included an allegation that Rebecca materially breached her fiduciary duties. This included claims of hostility towards Lori Moncecchi and preferential treatment towards Tammy Acorn, particularly in relation to loans and debt collection efforts. The Wyoming Rules of Civil Procedure, specifically Rule 8(a)(2), require a pleading to contain a clear statement of the claim to provide fair notice to the defendant. The principle of notice pleading allows for liberal construction of pleadings to ensure justice. Previous cases, such as Ridgerunner and Forbes, emphasized the necessity for plaintiffs to adequately inform defendants of the claims being made. In Ridgerunner, the court determined that a lack of indication regarding the intention to pierce the corporate veil led to proper dismissal, while in Forbes, the failure to specify water rights in a breach of loyalty claim resulted in insufficient notice to the defendants regarding that aspect of the claim. Lynch examined whether the plaintiff sufficiently alleged that the defendant directors received excessive salaries. Although the plaintiff's complaint did not explicitly mention salaries, it claimed that the directors breached their fiduciary duties by diverting funds to the corporation's detriment, which indicated an inquiry into the reasonableness of executive salaries. The Moncecchis' allegations, similar to those in Lynch, suggested that Rebecca showed hostility toward Lori while favoring Tamra. While the complaint did not specifically detail how Rebecca's hostility was manifested in delaying the 2014 gift, it adequately informed Rebecca that her treatment of Lori as a trust beneficiary was under scrutiny. Specific acts by the defendants need not be alleged when a breach of duty is evident. The district court found that Rebecca breached her fiduciary duty as trustee of the MJFRT by making a loan to Tamra after her default on other debts, calling the Moncecchi loan, overpaying herself, and delaying the 2014 gift to Lori. The court affirmed these findings and moved to assess the appropriateness of Rebecca's removal as trustee. The standard for removing a family member trustee requires more than mere errors; it necessitates showing an abuse of power or bad faith actions. The court observed that Rebecca's multiple intentional acts of favoritism towards certain beneficiaries constituted sufficient grounds for her removal as trustee. The power to remove a trustee lies within the court's equitable discretion, which will not be disturbed unless there is an abuse of that discretion. The determination of such abuse hinges on whether the court's conclusions were reasonable. A court's discretion is not considered abused unless its actions exceed reasonable bounds under the circumstances. Hostility between a trustee and beneficiaries typically does not justify the removal of a trustee unless it materially interferes with trust administration. In this case, while Rebecca's hostility toward Lori alone was insufficient for her removal as trustee of the MJFRT, it contributed to actions that breached her fiduciary duties. The district court found that Rebecca acted inappropriately by compensating herself for non-compensable tasks, misusing trust funds, and taking actions that harmed the trust estate. The court concluded that Rebecca could not administer the trust impartially, justifying her removal without exceeding reasonable discretion. The district court also determined that the Moncecchis failed to prove damages resulting from Rebecca's breaches of fiduciary duty with sufficient certainty. Although trust funds were misappropriated, the exact economic damages were not clearly established, particularly concerning improper charges. Consequently, the court did not award damages as the Moncecchis did not meet their burden of proof regarding the economic impact of Rebecca's actions. Credible testimony was presented regarding the reasonable value of Rebecca’s bookkeeping duties, which form the majority of her administrative services to the trust. However, the Moncecchis did not account for the value of additional incidental work performed by Rebecca, such as preparing her mother’s residence for sale, which could entitle her to fees since the property is a trust asset. The court determined that the Moncecchis failed to establish damages for breach of fiduciary duty with reasonable certainty. On appeal, the Moncecchis argued that the burden should have been on Rebecca, as the trustee, to demonstrate that her payments were valid distributions. Conversely, Rebecca and MJFRT contended that the burden to prove economic loss rightly rested with the Moncecchis, which they did not meet. The legal analysis for calculating damages is subject to de novo review. The Moncecchis claimed no burden to prove damages, arguing that trust law necessitates the trustee to establish the propriety of distributions. They cited various cases supporting this view, emphasizing the trustee's duty to maintain accurate records. Nonetheless, these cases also acknowledge that the beneficiary must initially demonstrate loss due to the trustee's breach of duty. In established trust law, once a beneficiary shows a breach and resultant loss, the uncertainty regarding the loss amount falls on the trustee. Rebecca and the MJFRT contend that the beneficiary seeking relief must prove damages in cases of breach of trust. They reference legal precedents indicating that the burden of proving damages initially lies with the beneficiary. However, once the beneficiary establishes a prima facie case of damages, the burden shifts to the trustee to demonstrate that their actions were proper. A beneficiary must plead facts showing a fiduciary duty, its breach, and the resultant damages to obtain relief. The Moncecchis successfully proved economic loss due to Rebecca's overpayment of $80,661.15 and an improper expenditure of $1,421.59, totaling $82,082.59. Consequently, the burden shifted to Rebecca to justify these amounts, which she failed to do as no evidence of reasonable fees was presented. The court reversed the district ruling that dismissed the Moncecchis' damage claims and remanded for an appropriate damages award. Additionally, it questions whether the district court improperly awarded attorney fees against Rebecca for a frivolous claim. The Moncecchis contend that the district court erred by denying them attorney fees related to their claims against Rebecca and the MJFRT. In response, Rebecca and the MJFRT assert that the Moncecchis cannot now claim attorney fees because they did not formally request them or include them as part of their damages. However, the Moncecchis’ First Amended Complaint explicitly referenced Wyo. Stat. Ann. 4-10-1004, which entitles them to attorney fees, and they sought such an award. The district court granted the Moncecchis attorney fees, characterizing Rebecca and the MJFRT's counterclaim as frivolous. On appeal, Rebecca and the MJFRT argue that the district court misinterpreted the counterclaim as vindictive, claiming it was not frivolous and that the award of fees was unwarranted. The appellate review distinguishes between the legal authority to award fees, assessed de novo, and the final fee award, which is evaluated for abuse of discretion. Wyoming adheres to the American rule regarding attorney fees, which generally holds that each party bears its own fees unless specifically authorized by statute or contract. The Uniform Trust Code permits courts to award attorney fees in trust administration cases as deemed necessary for justice and equity. The district court possessed the statutory authority to award fees, and once that authority is established, it has significant discretion in determining the appropriateness of such awards. Under W.R.C.P. 54, claims for attorney fees should be made by motion unless the underlying law allows for them as part of damage claims presented at trial. Attorney fees are categorized under the substantive claim exception to F.R.C.P. 54, requiring proof at trial rather than through a post-trial motion. If a contract allows for the recovery of fees by the prevailing party, these fees are not considered damages to be proven at trial but instead necessitate a Rule 54(d)(2) motion for the court to determine the amount of the award. Courts have emphasized that the concepts of "justice and equity" should guide trial courts in deciding whether to award fees from a trust and the amount to award. In previous cases, such as Shriners, courts upheld the discretion of the trial court in awarding fees when beneficiaries acted against the settlors’ intentions. In the current case, the district court questioned Rebecca about her rationale for counterclaiming a loan against the Moncecchis, despite their ongoing repayments. Rebecca admitted that her actions were prompted by the Moncecchis’ lawsuit against the trust and conceded that they had not violated loan terms or defaulted. Ultimately, Rebecca agreed to dismiss her counterclaim. The court found her counterclaim frivolous and lacking good faith, entitling Dino to attorney fees limited to the reasonable expenses incurred in defending against it, which must be supported by affidavit. The district court's characterization of the counterclaim as "frivolous" and its determination regarding attorney fees were upheld, showing no abuse of discretion. Dino was found not to have breached his duties to FHC by failing to solicit bids from competitive property management companies or by appropriating business opportunities for Spartan, and this conclusion by the district court was not clearly erroneous. Consequently, the issue of whether FHC sustained damages is not addressed. The removal of Rebecca as trustee of the MJFRT was also not based on clearly erroneous findings; however, the district court improperly applied the burden of proof regarding damages from Rebecca’s breach of fiduciary duty. Initially, the burden to show harm was correctly assigned to the Moncecchis, but once they demonstrated an overpayment to Rebecca, the burden shifted to her to prove the propriety of her disbursements. The Moncecchis established damages to the trust amounting to $82,082.59, while Rebecca did not provide evidence to counter this or show any offsetting disbursements. The district court did not err in awarding attorney fees to the Moncecchis. The ruling results in a partial affirmation, partial reversal, and remand for further proceedings.