#28357-a-GAS
2018 S.D. 46


                              IN THE SUPREME COURT
                                      OF THE
                             STATE OF SOUTH DAKOTA


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                  IN THE MATTER OF THE HEUPEL FAMILY
                   REVOCABLE TRUST dated March 23, 1999.


                                     ****


                   APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                     MEADE COUNTY, SOUTH DAKOTA

                                     ****

                 THE HONORABLE JEROME A. ECKRICH, III
                            Retired Judge

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DAVID L. CLAGGETT of
Claggett & Dill, Prof. LLC
Spearfish, South Dakota                       Attorneys for appellants Chad
                                              Heupel and Heupel Family
                                              Revocable Trust.

GREGORY A. EIESLAND of
Johnson Eiesland Law Offices
Rapid City, South Dakota                      Attorneys for appellee Renee L.
                                              Hansen.


                                     ****

                                              CONSIDERED ON BRIEFS
                                              ON APRIL 16, 2018
                                              OPINION FILED 06/20/18
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SEVERSON, Retired Justice

[¶1.]        The beneficiary of a trust filed a motion for an order to show cause for

why the trustee failed to follow an order of the circuit court. The beneficiary also

petitioned the circuit court to order the return of funds to the trust, which funds

were allegedly misappropriated by the trustee as a result of the trustee’s breaches

of his fiduciary duties. The beneficiary further sought to recover attorney fees from

the trustee. After multiple hearings, the circuit court held the trustee in contempt,

found that the trustee had breached his fiduciary duties to the beneficiary, and

found that the trustee had misappropriated trust funds. The court ordered the

trustee to personally reimburse the trust for the misappropriated funds. The court

also ordered the trustee to personally pay the beneficiary attorney fees. The trustee

appeals. We affirm.

                                    Background

[¶2.]        On September 22, 2012, Cordavee Heupel died. Her five adult children

survived her: Colin Heupel, Chad Heupel, Renee Hansen, Casey Heupel, and

RaeDeen Heupel. On the date of Cordavee’s death, the terms of the Heupel Family

Revocable Trust dated March 23, 1999, activated. The Family Trust created a

springing trust—the Renee Hansen Share Trust. The Family Trust also created the

RaeDeen Rose Heupel Share Trust. Colin and BankWest were the co-trustees of all

three trusts. Colin resigned as a co-trustee and appointed Chad in his place.

[¶3.]        The Family Trust corpus included, among other things, 160 acres of

land in Meade County, South Dakota. The siblings disputed the distribution of the

land. BankWest petitioned the circuit court for judicial supervision of the Family


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Trust and for distribution of trust property. No party opposed judicial supervision.

Chad and Casey were jointly represented by Bangs, McCullen, Butler, Foye &

Simmons; BankWest was represented by Costello, Porter, Hill, Heisterkamp,

Bushnill & Carpenter; Colin was represented by Gunderson, Palmer, Nelson, &

Ashmore; Renee was represented by Johnson Eiesland Law Offices; and Estes

Campbell Law Firm represented RaeDeen’s guardian.

[¶4.]        BankWest’s petition for distribution of trust property proposed that

the Meade County property be sold at public auction. Chad and Casey, as

beneficiaries, filed an objection to the sale of the property at a public auction. Colin

also objected and submitted an offer to purchase the property. Renee filed a

response, requesting that the circuit court utilize a sealed-bid process allowing bids

between the family members. Colin filed an alternative response, seeking partition

of the property. He also requested that a referee be appointed to determine whether

the property could be partitioned. Chad and Casey joined Colin’s alternative

request and indicated support for Colin’s offer to purchase the property.

[¶5.]        On September 10, 2013, the circuit court entered an order assuming

supervision of the Family Trust. It approved BankWest’s inventory of the Family

Trust, approved the distribution of personal and other property, directed that

certain personal property be sold at public auction, permitted the amendment of the

special needs trust created for RaeDeen, and found the fair market value of the

Meade County property to be $450,000. The court also identified that all parties

agreed that the Meade County property should be sold by private sale or to a trust

beneficiary subject to court approval.


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[¶6.]        In a separate order, the circuit court directed the appointment of a

referee to determine if the Meade County property could be partitioned. The parties

could not agree on the appointment of a referee, so the court appointed three

referees. The referees submitted a report to the court indicating that the property

could be partitioned. Renee objected to the referees’ report and advocated for a

public sale of the property. Colin petitioned for the court to approve the referees’

recommendations. Chad and Casey joined Colin’s petition.

[¶7.]        A trial commenced on April 1, 2015. That same day, however, the

siblings settled the dispute over the Meade County property. They agreed that

Colin and his wife would purchase the property from the Family Trust, and Renee

would receive—in her Share Trust—her 1/5 interest of the value set by the court-

appointed appraisers. The circuit court approved the parties’ written stipulation on

April 30, 2015.

[¶8.]        On September 15, 2015, BankWest filed a “Verified Petition for

Approval of Final Accounting, Discharge of Co-Trustees, Termination of Court

Supervision of Trust and Resignation of Co-Trustee BankWest as Trustee of the

RaeDeen Heupel Special Needs Trust and Renee L. Hansen Share Trust.” Chad

and Casey “as beneficiaries of the Heupel Family Revocable Trust” objected to the

fee claimed by BankWest. RaeDeen, now represented by Chad and Casey’s counsel,

also objected. They argued that BankWest had contractually agreed to accept a 1%

fee rather than the 2.5% fee BankWest claimed. Colin filed a separate response,

also objecting to BankWest’s fee request. Chad, Casey, and RaeDeen joined Colin’s

response. Renee took a position adverse to her siblings.


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[¶9.]        After a hearing on BankWest’s petition, the court set the fee dispute

for trial. It, however, indicated that it would dismiss BankWest as a co-trustee on

Renee’s Share Trust. The court specifically noted that BankWest remained a co-

trustee on the RaeDeen Heupel Special Needs Trust and the Family Trust. On

November 2, 2015, the circuit court entered an order dismissing BankWest “as a

Trustee of the Renee L. Hansen Share Trust upon entrance of this Order.” The

order further provided: “Chad Heupel shall, as Co-Trustee of the Renee L. Hansen

Share Trust shall [sic] nominate a new independent financial institution to act as a

successor Co-Trustee of BankWest, Inc., which nominee shall be approved by the

[c]ourt[.]” The order gave notice of an evidentiary hearing on the remaining relief

requested, namely BankWest’s trustee fees “for service as sole trustee in accordance

with the terms of the Heupel Family Revocable Trust.”

[¶10.]       Prior to the evidentiary hearing on BankWest’s fees, the parties settled

their dispute. BankWest agreed to be paid 1% of the total market value of all assets

in the Family Trust rather than its requested 2.5%. BankWest also agreed to

reimburse the Family Trust the fees paid out of the Family Trust, which were

incurred by BankWest as a result of the BankWest fee dispute. On January 7,

2016, the circuit court entered an order accepting the terms of the parties’

settlement. The order provided that as of the date of the order, the court accepted

BankWest’s resignation as a trustee of the RaeDeen Special Needs Trust and the

Family Trust. The court ordered that “supervision of the Heupel Family Revocable

Trust shall terminate effective immediately.”




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[¶11.]       On January 25, 2016, BankWest made final distributions of the

remaining funds held in the Family Trust. All five beneficiaries received equal cash

disbursements, with RaeDeen’s and Renee’s respective shares being placed in their

respective trusts. In February 2016, Renee received a $1,500 check from Family

Heritage Trust Company as her monthly disbursement from her trust. Family

Heritage had been selected by Chad to act as co-trustee of Renee’s Share Trust.

Renee did not cash the check because Chad did not obtain the circuit court’s

approval prior to appointing Family Heritage as co-trustee of her Share Trust.

[¶12.]       In March 2016, Renee filed a motion for an order to show cause why

Chad “should not be held in contempt of court for his failure to comply with” the

circuit court’s order requiring that Chad obtain the circuit court’s approval of the

appointment of a co-trustee of her trust. Renee’s motion further requested that the

court order Chad to account for misappropriated funds from Renee’s trust and that

Chad be required to pay Renee’s costs and attorney fees. The court entered an order

to show cause. Prior to the hearing on the court’s order, Renee’s counsel sent a

letter to Chad’s counsel, requesting that Chad not distribute further funds from

Renee’s Share Trust except the monthly payments to Renee.

[¶13.]       On May 17, 2016, the court held a hearing on the order to show cause.

The court indicated that it would not address Renee’s claim that Chad

misappropriated funds during the order to show cause hearing. In regard to

Renee’s claim that Chad disregarded the court’s November 2015 order, Chad replied

that he did not need to seek judicial approval for exercising his powers as a trustee

of Renee’s Share Trust because the court had terminated judicial supervision of the


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Family Trust. The court disagreed, concluding that its November 2015 order

unambiguously required that Chad obtain court approval of the appointment of a

corporate co-trustee.

[¶14.]       The court held that Chad violated the court’s order when he failed to

obtain court approval. The court declared that the appointment of the corporate

trustee “is a nullity because the [c]ourt order was not followed.” The court did not

direct a specific transition from Family Heritage; instead, it said, “Now you guys

figure out what happens with that.”

[¶15.]       In June 2016, the circuit court entered an order on the motion to show

cause. It held that Chad had violated the November 2015 order when he appointed

Family Heritage Trust Company as the co-trustee. The court further held that

Family Heritage “is not the Co-Trustee of the Renee L. Hansen Share Trust, and

never was the Co-Trustee appointed by this [c]ourt.” The court ordered Chad to pay

Renee’s attorney fees incurred in pursuing the order to show cause. We note that

Chad did not appeal this order. The court set an evidentiary hearing to approve a

co-trustee for Renee’s Share Trust and to consider Renee’s claim that Chad

misappropriated trust funds and breached his fiduciary duty to Renee.

[¶16.]       Prior to the evidentiary hearing, both parties submitted petitions.

Renee asserted that Chad breached his fiduciary duty to preserve Renee’s trust

assets and act in the best interest of Renee. She further claimed that Chad willfully

and without authority used his position as trustee for his own profit and for

purposes unconnected to the trust.




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[¶17.]       In response, Chad asserted that the circuit court lacked subject matter

jurisdiction to take action in regard to Renee’s Share Trust because the circuit

court’s order terminating judicial supervision of the Heupel Family Trust also ended

supervision of Renee’s trust. Chad further claimed that the court was without

jurisdiction because it had not yet entered an order for judicial supervision of

Renee’s Share Trust. Chad alternatively argued that if the court had jurisdiction, it

erred when it found that he breached his fiduciary duties as a trustee because the

Share Trust afforded him substantial discretion to pay his fees and to pay counsel.

[¶18.]       On July 8, 2016, the court held a hearing, and at the conclusion of the

hearing, the court issued an oral ruling. It restated that its November 2015 order

requiring Chad to obtain approval of the appointment of a corporate trustee

“survived the order terminating [c]ourt supervision.” It also found that Chad was

not acting under his authority granted in Renee’s Share Trust when he challenged

the BankWest fee. The court then ordered judicial supervision of the trust. The

court granted Renee’s request to remove Chad as a trustee and to dismiss Family

Heritage. The court requested a complete accounting from counsel for Chad and

from Family Heritage.

[¶19.]       On July 15, the court entered a written order memorializing its oral

rulings from the July 8 hearing. The order indicated that Renee’s request for

attorney fees was held in abeyance, as was the court’s ruling on the amount Chad

would be required to personally reimburse Renee’s Share Trust. The parties

submitted briefing on the issues reserved by the court.




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[¶20.]         In April 2017, the circuit court issued a memorandum decision. The

court again stated its previous holding that the termination of judicial supervision

of the Family Trust did not vacate the court’s November 2015 orders. The court

remarked, “Enforcement of the [c]ourt’s orders survives the termination of

supervision of the Master Trust, and under these circumstances, any ostensible

termination of the supervision of Renee’s Trust.” The court found, based on its

consideration of the evidence and testimony of the parties, that “[e]very act, every

distribution made by the ostensible co-Trustee Family Heritage Trust Company or

Chad Heupel was ultra-vires.” Further, the court found that Chad’s “[a]fter the fact

jiggering of Renee’s share of the Master Trust and unilateral payment of other

parties’ fees and expenses” was surreptitious and fraudulent. The court found

compelling that “at no point from July 30, 2013 to date [did] Chad ever represent[]

to this [c]ourt that he was acting in his capacity as co-Trustee of the Master Trust.

And it was only after Renee commenced the instant litigation that Chad appeared

or represented that he was acting as co-Trustee of Renee’s Trust.” The court,

therefore, held that “Chad Heupel has committed a substantial breach of his Trust,

both as co-Trustee of the Master Trust and as Trustee of Renee’s Trust.” The court

further held that Chad improperly caused the payment of attorney fees to attorneys

not representing Renee or the Share Trust. Ultimately, the court held that

distributions totaling $27,168.31 were “all ultra-vires, all without notice or [c]ourt

approval[.]”

[¶21.]         Citing SDCL 20-10-2, the court held Chad personally liable for his

tortious conduct. The court also found Chad in contempt for his failure to comply


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with the court’s orders. The court noted that Chad claimed he did not violate the

orders on purpose. But in the court’s view, “[t]he testimony is self-serving.” The

court emphasized that Chad continued to distribute funds from Renee’s Share Trust

after the hearing on Renee’s motion for an order to show cause. Although the court

did not find Chad in contempt in its June 17, 2016 order, it determined that “Chad’s

unilateral disbursements mere days before the July 8, 2016 hearing changed the

calculus.”

[¶22.]       On the issue of Renee’s request that Chad pay her attorney fees, the

court ordered that Chad reimburse Renee the attorney fees and costs incurred in

the current litigation as a sanction for his contempt. After examining the

reasonableness of the fee request and the factors relevant to an award of fees in a

civil case, the court ordered that Chad repay Renee her reasonable attorney fees

and costs. Finally, the court ordered that Chad in his individual capacity reimburse

the Renee L. Hansen Share Trust $27,168.31.

[¶23.]       In conclusion the court wrote,

             Chad Heupel willfully and contumaciously violated a valid
             [c]ourt order. Chad had the ability to abide by the order. Chad’s
             violation of the [c]ourt order was contemptuous. Chad breached
             his fiduciary duties. Chad had an irreconcilable conflict with
             Renee throughout the course of these proceedings. Chad’s
             actions were ultra-vires. Chad did not prevail. Chad committed
             fraud.

The court ordered the removal of Chad as the co-trustee of Renee’s Share Trust and

directed that the parties may submit proposed findings of fact and conclusions of

law. After the parties submitted proposed findings and conclusions, the court

adopted and amended Renee’s proposed findings and conclusions. On June 1, 2017,


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the court entered findings, conclusions, and an order, which incorporated its

memorandum decision.

[¶24.]       Represented by new counsel, Chad appeals. We restate his issues as

follows:

             1. Whether the circuit court had subject matter jurisdiction.

             2. Whether the circuit court erred when it held that Chad
                breached his fiduciary duties.

             3. Whether the court abused its discretion when it removed
                Chad as a trustee.

             4. Whether the court erred when it held Chad personally liable
                for disbursements made from Renee’s Share Trust and for
                the payment of Renee’s attorney fees.

                                       Analysis

             1. Subject Matter Jurisdiction

[¶25.]       Chad argues that the circuit court lacked subject matter jurisdiction to

act in regard to Renee’s Share Trust after the court entered its order terminating

judicial supervision of the Family Trust. Subject matter jurisdiction is a “a court’s

competence to hear and determine cases of the general class to which proceedings in

question belong; the power to deal with the general subject involved in the action;”

and “deals with the court’s competence to hear a particular category of cases.”

Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 14, 729 N.W.2d 335, 342

(quoting State ex rel. Joseph v. Redwing, 429 N.W.2d 49, 51 (S.D. 1988)). South

Dakota courts are courts of general jurisdiction. Therefore, a circuit court has

“general jurisdiction to hear all civil actions.” Christians v. Christians, 2001 S.D.




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142, ¶ 45, 637 N.W.2d 377, 386 (Konenkamp, J., concurring specially) (citing S.D.

Const. art. V. § 1).

[¶26.]        Chad does not claim that the circuit court lacked subject matter

jurisdiction to enter its November 2015 order mandating that Chad obtain court

approval prior to the appointment of a corporate co-trustee for Renee’s Share Trust.

Nor does Chad assert that a circuit court was without authority to enforce its

orders. Thus, this issue does not concern whether the circuit court had subject

matter jurisdiction. Rather, we must determine whether the orders entered

subsequent to November 2, 2015, negated the circuit court’s order that Chad seek

court approval of the appointment of a co-trustee.

[¶27.]        From our review of the various orders, no order issued after November

2, 2015, and the transcripts relevant to the orders had the effect of superseding the

circuit court’s November 2015 order. Indeed, at a hearing in December 2015,

counsel for Chad asked the court questions regarding the effect of the court’s

decision to terminate supervision of the Family Trust on Renee’s Share Trust. The

court remarked that it would leave the appointment of a successor trustee for

Renee’s Share Trust “to you folks.” But the court reiterated, “Whatever that is, it’s

to be approved by the [c]ourt.” Because the court’s November 2015 order remained

in effect and enforceable, the circuit court had authority to enforce its order in

response to Renee’s filing of a motion for an order to show cause.

              2. Breach of Fiduciary Duties

[¶28.]        Chad next claims that the circuit court erred when it held that he

breached his fiduciary duties as a trustee. Chad relies on the fact that judicial


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supervision of the trust had terminated. He claims that, consequently, he was

entitled to resume his broad powers and duties as a trustee of Renee’s Share Trust.

He further claims that as of January 25, 2016—the date BankWest completed its

final distribution—Chad’s role as a beneficiary of the Family Trust ceased to exist

and his “sole involvement” was in the role of trustee of the Renee L. Hansen Share

Trust. He avers “[h]e had no interest adversary to Renee.” Rather, according to

Chad, any conflict that existed between he and Renee existed solely because of

Renee’s objections and actions. He further claims that the court failed to identify

any trust provision Chad violated.

[¶29.]       As we recently stated in In re Estate of Moncur,

             As a fiduciary, a trustee has a duty “to act in all things wholly
             for the benefit of the trust.” Willers v. Wettestad, 510 N.W.2d
             676, 680 (S.D. 1994) (citing Schroeder v. Herbert C. Coe Trust,
             437 N.W.2d 178 (S.D. 1989); Restatement (Second) of Trusts §§
             175, 176 (1959)). SDCL 55-2-1 provides that “[i]n all matters
             connected with his trust a trustee is bound to act in the highest
             good faith toward his beneficiary and may not obtain any
             advantage therein over the latter by the slightest
             misrepresentation, concealment, threat, or adverse pressure of
             any kind.” In addition, we have declared that “a fiduciary must
             act with utmost good faith and avoid any act of self-dealing that
             places his personal interest in conflict with his obligations to the
             beneficiaries.” In re Estate of Stevenson, 2000 S.D. 24, ¶ 9, 605
             N.W.2d 818, 821 (quoting American State Bank v. Adkins, 458
             N.W.2d 807, 811 (S.D. 1990)).

2012 S.D. 17, ¶ 9, 812 N.W.2d 485, 487. “Whether a trustee has breached a

fiduciary duty is a question of fact.” Id. ¶ 10. We will not set aside the circuit

court’s factual findings unless they are clearly erroneous. Id.

[¶30.]       Although Chad avers on appeal that as of January 25, 2016, he was

acting solely in the capacity as trustee for the Share Trust, the record supports the


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court’s conclusion to the contrary. The court found that at all times pre- and post-

January 25, 2016, Chad’s position was adverse to Renee’s. Further, Chad’s counsel

appeared on behalf of Chad in Chad’s capacity as a beneficiary. Moreover, the court

found and the record supports that Chad’s decision to distribute funds from Renee’s

trust benefited Chad personally. Because Chad has not shown that the circuit

court’s findings are clearly erroneous, the circuit court did not err when it concluded

that Chad breached his fiduciary duty as trustee of the Renee L. Hansen Share

Trust.

             3. Removal of Chad as Trustee

[¶31.]       Chad argues that the circuit court abused its discretion when it

removed him as trustee of Renee’s Share Trust. We review a court’s decision to

remove a trustee for an abuse of discretion. “An abuse of discretion ‘is a

fundamental error of judgment, a choice outside the range of permissible choices, a

decision, which, on full consideration, is arbitrary and unreasonable.’” Gartner v.

Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003

S.D. 125, ¶ 14, 670 N.W.2d 904, 910).

[¶32.]       Chad makes one statement in support of his claim that the court

abused its discretion. He claims that he should not have been removed because he

“sought to fulfill the purposes of the Family Trust and follow the instructions of the

settlors.” The rest of Chad’s argument on this issue assumes the circuit court

lacked subject matter jurisdiction to act. Because the circuit court had subject

matter jurisdiction to consider Renee’s claims, we need not reexamine the court’s

authority to enforce its order, its authority to hold Chad in contempt, its authority


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to remove Chad as trustee, or its authority to determine whether Chad breached his

fiduciary duties. In regard to Chad’s claim that the court abused its discretion

when it removed him as trustee, Chad has not identified “a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary and unreasonable.” See id. Therefore, Chad has

failed to establish that the circuit court abused its discretion.

             4. Chad’s Personal Liability for Disbursements from the Trust
                and for Renee’s Attorney Fees

[¶33.]       Chad claims that he was acting in his capacity as trustee when Family

Heritage distributed Renee’s trust funds to purportedly pay Renee’s share of the

attorney fees incurred in the BankWest fee dispute by Gunderson Palmer and to

Bangs McCullen. He further avers that he was acting in his capacity as trustee

when he caused funds to be distributed from Renee’s trust to Colin and Debra

Heupel for Renee’s share of the insurance proceeds improperly retained in the

Family Trust. Additionally, Chad asserts that (1) the Trust authorizes the trustee

to retain legal counsel and to pay the costs of litigation, (2) the expenditures

benefited Renee’s Share Trust, and (3) Family Heritage Trust, not Chad, approved

the bills and made the disbursements.

[¶34.]       Under SDCL 55-3-13,

             A trustee is entitled to the repayment, out of the trust property,
             of all expenses actually and properly incurred by the trustee in
             the performance of his or her trust. The trustee is entitled to
             the repayment of even unlawful expenditures, if the
             expenditures were productive of actual benefit to the estate.
             Expenses in performance of the trust include those expenses
             actually and properly incurred in the exercise of the trustee’s
             powers as described in the governing instrument, in any
             applicable court order, or in chapter 55-1A.

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Further, under SDCL 15-17-38, “[t]he court may award attorneys’ fees from trusts

administered through the court[.]” “We review a trial court’s ruling on the

allowance or disallowance of costs and attorney fees under an abuse of discretion

standard.” Johnson v. Miller, 2012 S.D. 61, ¶ 7, 818 N.W.2d 804, 806 (quoting

Stratmeyer v. Engberg, 2002 S.D. 91, ¶ 12, 649 N.W.2d 921, 925).

[¶35.]       From our review, the record supports the circuit court’s finding that

Chad’s actions were ultra-vires, without authority, and without court approval. In

regard to the attorney fees distributed from Renee’s Share Trust to Bangs McCullen

and Gunderson Palmer purportedly for Renee’s share of the BankWest fee dispute,

the court found and the record supports that “Renee ultimately benefited from the

BankWest fee litigation.” However, the court further found that during the fee

litigation, Chad was not acting in his capacity as co-trustee of the Family Trust or

in his capacity as the co-trustee of Renee’s trust. He was acting in his capacity as a

beneficiary. At no point during the BankWest fee dispute did Bangs McCullen or

Gunderson Palmer represent Renee’s trust. Rather, Bangs McCullen and

Gunderson Palmer incurred their fees while taking positions adverse to Renee.

Therefore, under SDCL 55-3-13, Chad’s attorney fees for the fee dispute were not

“actually and properly incurred by the trustee in the performance of his or her

trust.”

[¶36.]       Because Chad was not acting in his capacity as a trustee of Renee’s

Share Trust when he caused additional funds to be distributed from her trust, he

has not established that he was “entitled to the repayment of even unlawful

expenditures” that “were productive of actual benefit to the estate.” See id. We

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further conclude that the circuit court did not abuse its discretion when it declined

to approve Chad’s disbursement as a recovery of attorney fees under SDCL 15-17-

38. The statute is discretionary, and Chad has not met his burden that the court

abused that discretion.

[¶37.]       Chad also claims that the circuit court erred when it ordered Chad to

personally pay Renee $3,500 in attorney fees. He asserts that the circuit court

failed to address the factors governing the reasonableness of a fee award in a civil

suit. See City of Sioux Falls v. Kelley, 513 N.W.2d 97, 111 (S.D. 1994). On the

contrary, although the circuit court first ordered Chad to pay Renee $3,500 in

attorney fees in its June 2016 order, the court specifically considered the

reasonableness of the attorney fee request in its April 2017 decision. The court

examined this Court’s factors and thereafter ratified its decision to order Chad to

pay Renee $3,500 in attorney fees.

[¶38.]       Chad further disputes the court’s decision to hold him personally liable

for his fees incurred as co-trustee. According to Chad, the issue was never raised or

litigated. He directs this Court to the transcript from the July 8, 2016 hearing. He

claims that the transcript reveals no argument by the parties or ruling by the court

suggesting that Chad would be held personally liable for the fees incurred as co-

trustee. Thus, according to Chad, the court erred when it adopted Renee’s proposed

order submitted after the July 8 hearing and thereafter held Chad personally liable.

[¶39.]       Prior to the July 8 hearing, Renee petitioned the circuit court to order

Chad to reimburse the trust for the funds misappropriated by him based on a

breach of his fiduciary duty to Renee. The court held an evidentiary hearing to


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determine whether Chad breached his fiduciary duty to Renee. Following that

hearing, the court entered an order holding in abeyance the issues of Chad’s

obligation to personally reimburse the trust for unauthorized expenditures and the

issue of Chad’s obligation to pay Renee’s attorney fees. The court ultimately found

that Chad had breached his fiduciary duties and held him personally liable. From

our review of the record, the issue of Chad’s personal liability was raised and

litigated.

[¶40.]        Nonetheless, Chad further claims that the amounts disbursed from the

trust—for his attorney fees to defend Renee’s suit and for the expenses he incurred

to travel to South Dakota—were properly chargeable to Renee’s Share Trust under

the trust documents and under SDCL 55-3-13. Article 12.1 of the Trust provides

that “all expenses of type incurred by our successor trustee(s) in carrying out the

duties under this trust shall be paid for from the trust.” Further, SDCL 55-3-13

provides that a trustee may seek “repayment, out of the trust property, of all

expenses actually and properly incurred by the trustee in the performance of his or

her trust.”

[¶41.]        Here, the circuit court concluded that Chad did not incur the attorney

fees in carrying out his duties under the trust. The court also found that Chad did

not properly incur the expenses in the performance of the trust. Thus, neither

South Dakota law nor the trust document entitles Chad to recover the attorney fees

he incurred in defense of Renee’s suit or the expenses he incurred to travel to South

Dakota.




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[¶42.]       Lastly, Chad argues that the circuit court erred when it ordered him to

personally pay Renee’s attorney fees incurred in litigating her claim that Chad

misappropriated trust funds. He claims that the court “neglected to make the

necessary findings and conclusions[.]” He also restates his argument that the issue

was not raised or litigated in the July 8 hearing.

[¶43.]       First, the issue was raised and litigated. Renee petitioned the circuit

court to require Chad to reimburse her attorney fees incurred as a result of Chad’s

breach of his fiduciary duties and disobedience of the court’s orders. Chad opposed

Renee’s requested relief. The court ultimately ordered Chad to personally repay

Renee her reasonable attorney fees and costs in the amount of $14,270 “as a

sanction for violating the Court Orders and his Trust and acting without Court

approval[.]” The court cited Sazama, 2007 S.D. 17, ¶ 27, 729 N.W.2d at 345.

[¶44.]       Second, contrary to Chad’s claim, the circuit court entered findings and

conclusions. The court identified the factors to be considered in awarding attorney

fees in a civil case as set forth in Kelley, 513 N.W.2d at 111. The court addressed

the factors and concluded that Renee’s fee request was reasonable. Therefore, on

the arguments advanced by Chad, he has not met his burden of proving that the

circuit court clearly erred or abused its discretion.

                                      Conclusion

[¶45.]       This appeal does not concern the circuit court’s subject matter

jurisdiction over a trust, but rather the circuit court’s authority to enforce an order.

Based on our review of the record, the circuit court had authority to enforce its

November 2015 order and did not clearly err when it found that Chad violated the


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order. The court also did not err when it found that Chad breached his fiduciary

duties as trustee of the Renee L. Hansen Share Trust. Chad has not met his burden

of proving error in the court’s decisions: (1) to remove him as trustee; (2) to hold him

personally liable for the disbursements made from Renee’s Share Trust; (3) to hold

him personally liable for the attorney fees incurred in his defense of Renee’s suit

and for expenses incurred by him for his trips to South Dakota; and (4) to hold him

personally liable for the payment of Renee’s attorney fees.

[¶46.]       We affirm the circuit court’s orders and deny Chad’s request for

appellate attorney fees.

[¶47.]       GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,

Justices, concur.




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