                                                                 Jun 19 2015, 9:31 am




ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE INDIANA
Daniel J. Paul                                        ATTORNEY GENERAL
Williams Barrett & Wilkowski, LLP                     Gregory F. Zoeller
Greenwood, Indiana                                    Attorney General of Indiana
                                                      Frances Barrow
                                                      Aaron T. Craft
                                                      Deputy Attorneys General
                                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Trust                                 June 19, 2015
Created Under the Last Will and                            Court of Appeals Case No.
Testament of Marion A. Peeples,                            41A01-1412-TR-513
Deceased,                                                  Appeal from the Johnson Superior
                                                           Court
Johnson County Community                                   The Honorable Kevin M. Barton,
Foundation as Successor Trustee                            Judge
of the Marion A. Peeples                                   Trial Court Cause No. SE79-23
Foundation Charitable Trust,
Appellant-Petitioner




Bradford, Judge.



                                     Case Summary


Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015                  Page 1 of 21
[1]   After Marion Peeples and his wife Eve passed away, the trust provided for in

      their wills was established (“The Trust”). The Trust provided for the award of

      scholarships to Indiana high school graduates, preferably from Franklin High

      School, who wished to pursue post-secondary education in certain fields.

      Union Bank & Trust was initially the trustee of the Trust, and, through mergers

      and acquisitions, JPMorgan Chase Bank, N.A. (collectively, “the Bank”), took

      over.


[2]   In 2013, the Johnson County Community Foundation (“JCCF”), which had

      been managing the scholarship program for the Bank since 2000, petitioned the

      trial court to be appointed trustee for the Trust. The trial court granted JCCF’s

      petition in an order that limited JCCF’s fee to 1.5% of trust assets per year and

      required it to receive court approval before engaging the service of certain third-

      parties under certain circumstances. JCCF now appeals, contending that the

      trial court abused its discretion in imposing restrictions on its administration of

      the Trust. The Attorney General of Indiana appears on behalf of the Trust

      beneficiaries and argues that JCCF’s arguments are not ripe for appellate

      review. JCCF counters that the Attorney General’s arguments were not

      properly preserved. Because we conclude that (1) the Attorney General’s

      arguments were properly preserved, (2) JCCF’s arguments are ripe, and (3) the

      trial court did not abuse its discretion in imposing restrictions on JCCF’s

      administration of the Trust, we affirm.



                             Facts and Procedural History
      Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 2 of 21
[3]   On February 28, 1962, Marion Peeples and his wife Eva Peeples each executed

      a last will and testament. The wills included provisions for the establishment of

      the “Marion A. Peeples and Eva S. Peeples Foundation Trust,” or the Trust.

      Appellant’s App. p. 35. The Trust established separate scholarship funds for

      male and female students. The female scholarship was established for Franklin

      College for the benefit of graduates of any Indiana high school (preferably

      Franklin Community High School) interested in pursuing nursing or dietetics

      (preferably at Franklin College). The male scholarship fund was established for

      Franklin Community High School for the benefit of graduates of that high

      school who are seeking “training in teaching in the field of industrial arts”

      (preferably at Franklin College). Appellant’s App. p. 37. The language creating

      the Trust grants the trustee the power to “employ such attorneys, auditors,

      accountants, or other assistants, as are, in the judgment of the Trustee,

      necessary, and to pay their compensation from the Trust Property.”

      Appellant’s App. p. 42. Between 2001 and 2014, $1,049,583.00 was distributed

      to scholarship recipients.


[4]   On July 11, 1971, Marion died, followed by Eva on October 5, 1978. On

      March 29, 1979, the Bank petitioned Johnson Superior Court to docket the

      Trust, which petition the trial court granted on April 2, 1979. In 2000, the Bank

      approached JCCF to manage the scholarships. Until 2005, the Bank paid

      JCCF $30,000.00 per year to manage the scholarship programs and $20,000.00

      per year after.




      Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015      Page 3 of 21
[5]   On March 26, 2013, JCCF filed a petition of proposed successor trustee to

      appoint successor trustee (“the Petition”) and the Bank made filings indicating

      its desire to resign as trustee. At the time, the balance of the Trust was

      $1,292,662.65. On May 31, 2013, the Indiana Attorney General, on behalf of

      the beneficiaries of the Trust, indicated that it had no objection to the

      appointment of JCCF as the successor trustee.


[6]   On June 3, 2013, the trial court held a hearing on the Petition, at which no

      party other than JCCF appeared and presented evidence. JCCF President Gail

      Richards testified and was cross-examined by counsel for Franklin College.

      Richards testified on cross-examination that JCCF had never administered a

      trust before and that the fees JCCF were seeking were 1.5% of the balance of

      the Trust.


[7]   On October 18, 2013, the trial court issued its order accepting the Bank’s

      resignation as trustee of the Trust, appointing JCCF trustee, and approving the

      Bank’s accounts for 2011 and 2012. The order provides as follows:

                  The Court being duly advised in the premises, now
              FINDS AND ORDERS as follows:
                    1.     The above cause of action came before the Court for
              hearing on the Verified Petition of Trustee to Appoint Successor
              Trustee And Verified Petition Of Proposed Successor Trustee To
              Appoint Successor Trustee. Testimony was presented to the
              Court by Gail Richards, Director.
                    2.     J.P. Morgan Chase Bank, N.A filed it’s [sic passim]
              Trustee’s Statement of Account for 2011 and 2012. By Notice of
              Opportunity To File Objection to Trustee’s Accounts the Court

      Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015       Page 4 of 21
        provided all interested parties with notice and opportunity to file
        objection to the Trustee’s Statement of Account for 2011 and
        2012. No objections were filed.
               3.     By Attorney General’s Response, the Attorney
        General stated that no objection was made to the Verified
        Petition of Trustee to Appoint Successor Trustee And Verified
        Petition Of Proposed Successor Trustee To Appoint Successor
        Trustee.
               4.      From the evidence submitted to the Court, J.P.
        Morgan Chase Bank is now administering the Trust from a trust
        officer out of state. J.P. Morgan Chase Bank has submitted it’s
        resignation as trustee because it deems the size of the trust
        insufficient to effectively manage.
               5.     Request is made for the Johnson County
        Community Foundation to be appointed as Successor Trustee of
        the Peeples Trust. Johnson County Community Foundation has
        expertise in the management of investments for charitable and
        benevolent purposes as a community foundation. The Johnson
        County Community Foundation has expertise in financial
        management. However, the Johnson County Community
        Foundation has not previously acted as trustee for a benevolent
        trust.
               6.     From the testimony presented at [the] hearing, the
        Court identifies two matters of concern: trustee fees and
        identification of trust recipients.
              7.      As to trustee fees, it was disclosed that J.P. Morgan
        Chase Bank had contracted with the Johnson County
        Community Foundation to fulfil local trustee duties, including
        encouraging applicants for the trust, screening applicants and
        determining who should receive disbursements from the trust. A
        fee was initially charged in the amount of $30,000.00 but was
        subsequently reduced to $20,000.00 after J.P. Morgan Chase
        Bank assumed the duty of making distributions from the trust to
        the educational institutions of the selected trust recipients. J.P.
        Morgan Chase Bank did not request court approval to utilize the

Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015        Page 5 of 21
        services of the Johnson County Community Foundation in
        fulfilling it’s duties as Trustee. Inasmuch as J.P. Morgan Chase
        Bank was authorized to charge for it’s services a[t] it’s usual and
        customary rates for trust services, it was contemplated that the
        fees assessed were for all aspects in serving as trustee. The
        accountings filed by J.P. Morgan Chase Bank show that the
        effective annual charge by J.P. Morgan Chase Bank in serving as
        trustee was 1.2% of the trust assets. After including the
        additional amount charged by the Johnson County Community
        Foundation, the effective annual charge for trustee services rises
        to 2.7% of the trust assets. The trustee fees constitute
        approximately 64% of the amount disbursed to the trust
        recipients. The court finds that the fees charged in relation to the
        amounts disbursed to be excessive.
               However, the Court is also mindful that the banking
        landscape has changed considerably from the time when the
        Peeples Trust was created. The locally based trust company has
        largely been relegated to history.
                8.     A concern was also noted regarding identification of
        students to apply for disbursements from the trust. Ms. Richards
        testified that the Foundation had placed notice of opportunity to
        apply for benefits under the trust with other community
        foundations. The trust states a clear preference to benefit
        students attending Franklin Community High School. The
        Court makes clear that the terms of the trust need to be closely
        followed.
                 9.       The Court determines as follows:
               A.    The resignation of J.P. Morgan Chase Bank, N.A.
        as the Trustee of the Marion A. Peeples and Eva S. Peeples Trust
        is granted.
               B.    The petition for appointment of the Johnson
        County Community Foundation as successor trustee of the
        Marion A. Peeples and Eva S. Peeples Trust is granted subject to
        the terms herein set forth.


Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015     Page 6 of 21
               C.     The fees charged by J.P. Morgan Chase Bank,
        N.A., including the amount paid to the Johnson County
        Community Foundation, for 2011 and 2012 are reserved for
        consideration. J.P. Morgan Chase Bank, N.A. shall tender
        within forty-five (45) days of the date of this Order, the rate
        structure used by J.P. Morgan Chase Bank, N.A. in assessing
        trustee fees and the authority for incurring additional charges for
        trustee duties above the rate structure either by the terms of trust
        or by statute. J.P. Morgan Chase Bank, N.A. may submit to the
        Court the rate structure for other similar trust institutions in
        support of the fee petition.
               D.     The fees charged by Johnson County Community
        Foundation in serving as Trustee shall be limited to one and one-
        half percent (1 ½%) of the Trust assets annually, although
        payment for services may be made on a quarterly or monthly
        basis. Any request for payment of fees in addition to such
        amount shall be supported by time records that support the
        additional fee or financial report regarding administrative
        expenses in administering assets.
               E.     If any third party is to be engage[d] to provide
        services to the Peeples Trust that is not included within the said
        one and one-half percent (1 ½%) annual administrative fee, prior
        Court approval shall be required before the third party is engaged
        to provided [sic] services. The Johnson County Community
        [Foundation is specifically directed to make no disbursement
        from the Peeples Trust for such third party] services without
        express court authorization.
               F.      The Johnson County Community Foundation shall
        include in it’s annual report as Trustee the efforts made in
        seeming applicants for trust benefits and the secondary school of
        the trust recipient in sufficient detail so that the court may
        determine compliance with the trust intention.
                G.    Except as reserved as to fees as hereinabove set
        forth, the Trustees Statement of Account for 2011 and 2012 is
        approved.

Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015         Page 7 of 21
      Appellant’s App. pp. 13-15.


[8]   On November 27, 2013, the Bank filed a supplemental brief addressing the fee

      issue. On April 3, 2014, the trial court issued an order approving the Bank’s

      fees, in which it also ordered that “[t]he scholarships awarded and the expense

      of administration allocated to income shall not exceed the income of the trust.”

      Appellant’s App. p. 17.


[9]   On May 5, 2014, JCCF filed a motion to correct error. On October 23, 2014,

      the trial court held a hearing on JCCF’s motion to correct error. The Indiana

      Attorney General appeared at the hearing. On November 6, 2014, the trial

      court granted JCCF’s motion to correct error in part and denied it in part. The

      order on JCCF’s motion to correct error provides as follows:

                     The above cause of action came before the Court for
              hearing on the 23rd day of October, 2014 on the Motion To
              Correct Error filed by Successor Trustee, Johnson County
              Community Foundation, hereinafter referred to as JCCF, on
              May 5, 2014. Johnson County Community Foundation
              appeared by it’s [sic passim] President and Chief Executive
              Officer, Gail Richards, and by counsel, William Bennett, Esq.
              and Daniel Paul, Esq. Indiana Attorney General appeared by
              Deputy Attorney General Justin Hazlett, Esq. Ms. Richards
              sworn. Evidence is presented.
                  And the Court, being duly advised in the premises, now
              FINDS as follows:
                     1.      The Motion To Correct Error addresses certain
              issues as to the Court’s Order Accepting Resignation Of Trustee
              And Appointing Successor Trustee And Order Regarding Fees
              And Approval Of Trustee’s Account For 2011 And 2012 dated
              October 18, 2013, to-wit:
      Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 8 of 21
                 A.       Limitation on fees charged by JCCF;
                 B.     Express authorization required before contracting
                 with third parties for services.
              2.     The Motion To Correct Error addresses an issue in
        the Court’s Order Regarding Trustee’s Fees For 2011 And 2012
        And Trust Administration dated April 3, 2014, to-wit:
                 A. Any limitation on scholarships awarded and expenses
                 of administration to income.
               3.     At hearing, JCCF requested that the Court rescind
        the portion of the Order of October 18, 2013 that limits the “fees
        charged by Johnson County Community Foundation in serving
        as Trustee shall be limited to one and one-half percent (1 ½%) of
        the Trust assets annually, although payment for services may be
        made on a quarterly or monthly basis.” JCCF asserted that the
        basis of the request is that the fee schedule of JCCF for the
        administration of trusts was two percent (2%) of trust assets. Ms.
        Richards testified that the fee schedule for administration of
        trusts was set by the JCCF Board on March 21, 2012.
              4.     At hearing conducted on June 3, 2013, the
        following testimony was presented:
                 Question by Mr. Huddleston: So what will be your fees if
                 the Judge approves you as Trustee?
                 Answer by Ms. Richards: Well according to managing a
                 trust - our internal fees right now are one and a half
                 percent of the balance of the fund taken out once a month
                 so whatever the balance of the fund is on a monthly basis
                 it would be one and a half percent.
                 …
                 Question by Mr. Huddleston: So the one and a half is
                 regardless of the amount of time you put in, you
                 automatically bill this trust one and a half percent?
                 Answer by Ms. Richards: Just like we do every other fund
                 that we manage.

Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015       Page 9 of 21
                 Question by Mr. Huddleston: So the answer is yes?
                 Answer by Ms. Richards: Yes.”
               5.     At [the] hearing on June 3, 2013, no evidence was
        presented that JCCF would charge a different fee for the
        administration of trusts, i.e. 2% of the fund balance, as opposed
        to the fee charged to administer other funds administered by
        JCCF, i.e. 1 1/2% of the fund balance. The Court relied upon
        the testimony provided by Ms. Richards in appointing JCCF as
        Successor Trustee. Ms. Richards’ testimony formed the basis for
        paragraph 9(D) of the Court’s Order Accepting Resignation Of
        Trustee And Appointing Successor Trustee And Order Regarding
        Fees And Approval Of Trustee’s Account For 2011 And 2012
        dated October 18, 2013.
                6.      Ms. Richards acknowledged that a cost analysis had
        not been performed to determine the cost to JCCF to administer
        the Trust. The time required to administer the trust was
        unknown. On November 27, 2013, J.P. Morgan Chase filed it’s
        Response To The Court’s Order of October 18, 2013. The fee
        schedule provided by J.P. Morgan Chase resulted in a Trustee’s
        compensation of 1.52% of Trust assets based upon the principal
        balance as of December 31, 2012. Fee schedules were also
        submitted from other trust companies. The fees schedules were
        all slightly less than the fee of J.P. Morgan Chase although the
        fees were close to that charged by J.P. Morgan Chase.
              7.      The Court does not find error in it’s Order
        Accepting Resignation Of Trustee And Appointing Successor
        Trustee And Order Regarding Fees And Approval Of Trustee’s
        Account For 2011 and 2012 dated October 18,2013 in setting the
        Trustee’s fee at one and a half percent (1 ½%) of the asset
        balance annually. The Court accepted the fee quoted by JCCF
        when it sought appointment as Successor Trustee. The Court
        does not amend its Order Accepting Resignation Of Trustee And
        Appointing Successor Trustee And Order Regarding Fees And
        Approval Of Trustee’s Account For 2011 And 2012 dated
        October 18, 2013 as to the fees authorized to be paid to the

Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015   Page 10 of 21
        Successor Trustee. If JCCF now finds that it is not able to
        administer the Marion And Eva Peeples Trust based upon the
        testimony provided at hearing on June 3, 2013, JCCF may resign
        as Successor Trustee.
              8.     The Court turns to the second basis of the Motion to
        Correct Error. JCCF seeks to be relieved of the requirement that
        JCCF seek Court approval for fees paid to third parties.
                9.    The Court’s restriction on fees arose from the
        amount paid to J.P. Morgan Chase and JCCF for trust
        administration. The Court determined that the services provided
        by J.P. Morgan Chase and JCCF amounted to trust
        administration. Based upon the asset balance as of December 31,
        2012, the amount paid to J.P. Morgan Chase and JCCF for trust
        administration was in the amount of 3.1% of trust assets. This
        amount was determined to be higher than trust fees of other
        corporate fiduciaries for trust management especially when a cost
        analysis had not been performed to determine the cost of
        providing services. Significantly, JCCF likewise viewed the
        amounts charged by J.P. Morgan Chase and JCCF as being
        duplicitous [sic]: Board Member Bill Kiesel testified at [the]
        hearing on June 3, 2013: “It came to the attention of the Board
        that we were doubling up fees by having a trustee who really
        didn’t want to be trustee and those were Robin’s words - not
        mine. It didn’t fit the parameters of what Chase wanted to do
        and Robin and I did have conversations about other alternatives,
        but it seemed to make sense that because we don’t want to pay
        double fees to another trustee that the foundation be allowed to
        be the trustee and eliminate those fees and use the money saved
        for scholarships.”
               10. Ms. Richards testified that JCCF might require
        services of an attorney and tax preparer and that fees on
        investments would be incurred. Ms. Richards clarified that fees
        on investments consisted of transactional fees as opposed to
        investment management.



Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 11 of 21
              11. Paragraph 9(E) of the Court’s Order Accepting
        Resignation Of Trustee And Appointing Successor Trustee And
        Order Regarding Fees And Approval Of Trustee’s Account For
        2011 And 2012 dated October 18, 2013 provided:
               “E. If any third party is to be engage to provide services to
        the Peeples Trust that is not included within the said one and
        one-half percent (1 ½%) annual administrative fee, prior Court
        approval shall be required before the third party is engaged to
        provided services. The Johnson County Community Foundation
        is specifically directed to make no disbursement from the Peeples
        Trust for such third party services without express court
        authorization.”
               12. Normal transactional fees to third party brokerage
        firms was not contemplated within the provisions of paragraph
        9(E) of the Court’s Order Accepting Resignation Of Trustee And
        Appointing Successor Trustee And Order Regarding Fees And
        Approval Of Trustee’s Account For 201 l And 2012 dated
        October 18, 2013. Consequently, normal transactional fees to
        third party brokerage firms are excluded from paragraph 9(E) of
        the Court’s Order Accepting Resignation Of Trustee And
        Appointing Successor Trustee And Order Regarding Fees And
        Approval Of Trustee’s Account For 2011 And 2012 dated
        October 18, 2013.
               13. Fees to tax preparers are required to comply with
        federal and state requirements. Tax preparation fees charged at
        the customary hourly rate by third party tax preparers should
        likewise be excluded from the provisions of paragraph 9(E) of the
        Court’s Order Accepting Resignation Of Trustee And
        Appointing Successor Trustee And Order Regarding Fees And
        Approval Of Trustee’s Account For 2011 And 2012 dated
        October 18, 2013.
              14. Attorney fees provided to a fiduciary are
        customarily subject to oversight. See Indiana Code 29-1-10-13,
        Indiana Code 29-3-9-9. The Court does not find a reason to
        exclude attorneys from paragraph 9(E) of the Court’s Order

Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 12 of 21
        Accepting Resignation Of Trustee And Appointing Successor
        Trustee And Order Regarding Fees And Approval Of Trustee’s
        Account For 2011 And 2012 dated October 18, 2013.
               15. Based upon a need for greater oversight arising from
        past duplicitous charges for trustee services, the Court otherwise
        finds that paragraph 9(E) of the Court’s Order Accepting
        Resignation Of Trustee And Appointing Successor Trustee And
        Order Regarding Fees And Approval Of Trustee’s Account For
        2011 And 2012 dated October 18, 2013 is appropriate subject to
        the modification and clarification set forth in paragraphs twelve
        and thirteen above. JCCF does not provide evidence of the need
        for other services or present evidence that paragraph 9(E) will
        hinder the administration of the trust.
               16. The Court next turns to the Paragraph 7 of the
        Order Regarding Trustee’s Fees For 2011 and 2012 And Trust
        Administration of April 3, 2014, which provides: “7. The
        scholarships awarded and the expense of administration
        allocated to income shall not exceed the income of the trust. “
               17. JCCF asserts that paragraph 7 of the Order of April
        3, 2014 restricts the discretion granted to the Trustee to utilize
        principal for trust purposes under the terms of the Peeples Trust.
        In reviewing JCCF’s Hearing Brief as well as the provisions cited
        by JCCF of the Last Will and Testament of Marion Peeples, the
        Court concurs.
              18. Accordingly, JCCF’s Motion To Correct Errors as
        to Paragraph 7 of the Order Regarding Trustee’s Fees For 201 l
        and 2012 And Trust Administration of April 3, 2014 is granted.
        Paragraph 7 of the Order Regarding Trustee’s Fees For 2011 and
        2012 And Trust Administration of April 3, 2014 is vacated.
               19. The Court does not identify any other basis of the
        Motion to Correct Errors either by the terms of the Motion To
        Correct Errors or by Hearing Brief. Accordingly, except as
        specifically granted, the
                 Motion to Correct Errors is denied.


Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 13 of 21
                   IT IS THEREFORE ORDERED BY THE COURT AS
               FOLLOWS:
                     A.     Motion To Correct Error as to the restriction on
               Trustee Fees charged by Johnson County Community
               Foundation as Successor Trustee under Paragraph 9(D) of the
               Order Accepting Resignation Of Trustee And Appointing
               Successor Trustee And Order Regarding Fees And Approval Of
               Trustee’s Account For 2011 And 2012 dated October 18, 2013 is
               denied;
                     B.     Motion to Correct Error as to Paragraph (E) of the
               Court’s Order Accepting Resignation Of Trustee And
               Appointing Successor Trustee And Order Regarding Fees And
               Approval Of Trustee’s Account For 2011 And 2012 dated
               October 18, 2013 is granted and denied as follows:
                        i)     Normal transactional fees to third party brokerage
                        firms are excluded from paragraph 9(E);
                        ii)   Tax preparation fees charged at the customary
                        hourly rate by third party tax preparers are excluded from
                        paragraph 9(E);
                        iii). Except as provided under paragraph i and ii,
                        Paragraph 9(E) will remain unaltered;
                     C.    Motion to Correct Error as to Paragraph 7 of the
               Order Regarding Trustee’s Fees For 2011 and 2012 And Trust
               Administration of April 3, 2014 is granted. Paragraph 7 of the
               Order Regarding Trustee’s Fees For 2011 and 2012 And Trust
               Administration of April 3, 2014 is vacated;
                      D.     Except as herein granted, the Motion to Correct
               Error is denied.
       Appellant’s App. pp. 18-23.


[10]   JCCF contends on appeal that the trial court erred in restricting its authority to

       employ attorneys and other third parties and in capping its annual fee at 1.5%

       of the Trust’s assets per year. The Attorney General argues that none of
       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015       Page 14 of 21
       JCCF’s arguments are ripe for appellate review and that the trial court did not

       abuse its discretion in appointing JCCF trustee subject to limitations. Finally,

       JCCF argues in its reply brief that the Attorney General’s arguments were not

       properly advanced in the trial court and are therefore waived for appellate

       review. We address the arguments presented in more or less reverse order.


                                  Discussion and Decision
                           I. Whether the Attorney General’s
                               Arguments Are Waived
[11]   JCCF contends that the Attorney General’s arguments are waived for appellate

       review. JCCF notes that the Attorney General did not object to the Petition

       and only became involved in the litigation following JCCF’s motion to correct

       error. Under the circumstances of this case, we find the Attorney General’s

       actions sufficient to preserve its arguments for appellate review. The purpose of

       the contemporaneous objection rule is to promote a fair trial by preventing a

       party from sitting idly by and appearing to assent to an offer of evidence or

       ruling by the court only to cry foul when the outcome goes against him. Purifoy

       v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied (citation

       omitted). That purpose would not be served in this case by application of the

       waiver rule.


[12]   We see no reason the Attorney General should have been required to object to

       the Petition, as it requested nothing that is inconsistent with the positions now

       taken by the Attorney General. The Petition itself only requests substitution of

       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015   Page 15 of 21
       JCCF for the Bank as trustee—which the Attorney General has never

       opposed—and mentions nothing regarding fees, payments to third parties, or

       using Trust principal for scholarships or expenses. Nor do we believe that the

       Attorney General should have been required to object to the trial court’s order

       on the Petition, as it contained no provisions to which the Attorney objected.

       On the other hand, the Attorney General did oppose JCCF’s motion to correct

       error, in which JCCF urged the trial court for the first time to enter rulings to

       which the Attorney General objected. Put another way, the Attorney General

       became involved at the precisely the point where it became clear that JCCF was

       taking a position in opposition to the Attorney General’s position. We

       conclude that the Attorney General adequately preserved its arguments for

       appellate review.


                     II. Whether JCCF’s Arguments Are Ripe
[13]   The Attorney General contends that JCCF’s arguments are not ripe because

       there is no evidence that JCCF will ever need more than 1.5% of the Trust

       assets per year or engage the services of third parties in order to adequately

       administer it. “Ripeness relates to the degree to which the defined issues in a

       case are based on actual facts rather than on abstract possibilities, and are

       capable of being adjudicated on an adequately developed record.” Ind. Dep’t of

       Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d 331, 336 (Ind. 1994).

       “BLACK’S LAW DICTIONARY defines ripeness as the ‘circumstance

       existing when a case has reached, but has not passed, the point when the facts

       have developed sufficiently to permit an intelligent and useful decision to be

       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 16 of 21
       made.’” Estate of Hagerman v. Ind. Dep’t of State Revenue, 771 N.E.2d 120, 128

       (Ind. T.C. 2002) (quoting BLACK’S LAW DICTIONARY 1328 (7th ed. 1999)).


[14]   We agree with JCCF that its claims are ripe. JCCF’s fee for serving as trustee

       moving forward has been capped at 1.5% and JCCF must obtain court

       permission before engaging the services of most third parties. JCCF’s decision-

       making as trustee will be affected by the limit, even if it does not go to the trial

       court seeking more money. Also, as things stand, before considering engaging

       the services of a third party, JCCF must weigh whether it is worth the

       additional trouble and expense of petitioning the trial court for permission to do

       so. We consider these restrictions to be more than abstract possibilities when

       viewed from JCCF’s perspective. We conclude that the facts of this case have

       developed sufficiently to permit an intelligent and useful decision.


          III. Whether the Trial Court Abused its Discretion in
                    Imposing Restrictions on JCCF
[15]   JCCF contends that the restrictions placed on its administration of the Trust are

       contrary to the express language of the Trust and the Indiana Trust Code. The

       Attorney General counters that the restrictions, even those that alter the terms

       of the Trust, are within the trial court’s equitable power over the administration

       of trusts.


               In Indiana, probate courts possess general equity powers. Powell
               v. North (1859), 3 Ind. 392. Those powers include the authority
               to supervise and control the administration of trusts. See State ex
               rel. Anderson-Madison County Hospital Development Corp. v. Superior
               Court of Madison County (1964), 245 Ind. 371, 199 N.E.2d 88;
       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015     Page 17 of 21
               Messner v. DeMotte (1948), 119 Ind. App. 273, 82 N.E.2d 900,
               trans. denied; Hulet v. Crawfordsville Trust Co. (1946), 117 Ind. App.
               125, 69 N.E.2d 823; Newlin v. Newlin (1944), 114 Ind. App. 574,
               52 N.E.2d 503, trans. denied. The Indiana Trust Code does not
               pretend to limit the equity power of probate courts except as it
               specifically provides. See IND. CODE 30-4-3-30.
       Matter of Trust of Loeb, 492 N.E.2d 40, 43 (Ind. Ct. App. 1986).


[16]   Indiana Code section 30-4-3-24.4 specifically provides for the modification of a

       trust if it will further the purposes of the trust:


               (a) The court may modify the administrative or dispositive terms
               of a trust if, because of circumstances not anticipated by the
               settlor, modification or termination will further the purposes of
               the trust. To the extent practicable, the modification must be
               made in accordance with the settlor’s probable intention.
               (b) The court may modify the administrative terms of a trust or
               terminate the trust if:
                    (1) the purpose of the trust has been fulfilled; or
                    (2) continuation of the trust on the trust’s existing terms
                    would:
                        (A) be illegal, impossible, impracticable, or wasteful; or
                        (B) impair the trust’s administration.
       So, the question is not whether the trial court’s restrictions violated or altered

       the terms of the Trust, but whether those restrictions were within its equitable

       power to administer the Trust.


                  A. Limiting Trustee Fee to 1.5% of Trust Assets
[17]   The Trust is silent on the question of trustee compensation. Indiana Code

       section 30-4-5-16(a) provides that, as a general rule, “the trustee is entitled to

       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015        Page 18 of 21
       reasonable compensation from the trust estate for acting as trustee.” The trial

       court specifically found that the total fees received by the Bank and JCCF had

       been unreasonably high at approximately 2.7% of the trust assets (or 64% of the

       amount distributed to beneficiaries) and then imposed the 1.5% limitation.

       Under the circumstances of this case, we conclude that the record supports the

       trial court’s decision regarding trustee fees.


[18]   JCCF’s own evidence supports a conclusion that a 1.5% fee is reasonable. At

       the hearing on June 3, 2013, Richards testified that 1.5% was the fee JCCF was

       seeking as trustee. (Tr. 16). Although Richards testified on October 23, 2014,

       that JCCF now wanted an annual fee of 2% of trust assets, she admitted on

       cross-examination that (1) she was unaware of any justification for the

       additional 0.5%, (2) 2% is “just the policy that we have[,]” and (3) requesting

       additional funds from the trial court, if needed, might be workable. Tr. p. 62.

       It is also worth noting that 1.5% is a “soft” cap, with the trial court’s order

       allowing for the payment of funds beyond that if JCCF can justify it. JCCF

       provided ample evidence from which the trial court could conclude that 1.5% of

       trust assets was a reasonable yearly fee.


[19]   Limiting JCCF’s fee also seems justified by changing circumstances, which

       threaten to prevent the Trust from effectively fulfilling its purpose. In 2001, the

       Trust distributed $139,000.00 to students. This number has steadily declined

       since then, and by 2014 the distribution had shrunk to $41,000.00. In March of

       2013, Trust assets totaled $1,292,662.65, 2% of which would be almost

       $26,000.00, or approximately 63% of the 2014 distribution to beneficiaries. The

       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015    Page 19 of 21
       obvious purpose of the Trust is to award scholarships to students in dietetics,

       nursing, and industrial arts, a purpose that would not be well-served if fees

       exceeded distributions to beneficiaries, a circumstance that seems a distinct

       possibility in the relatively near future, and even more likely if JCCF is able to

       charge a higher fee. We conclude that the trial court did not abuse its discretion

       in pushing JCCF to find ways to streamline administration of the Trust.


                                   B. Payments to Third Parties
[20]   As previously mentioned, the language creating the Trust grants the trustee the

       power to “employ such attorneys, auditors, accountants, or other assistants, as

       are, in the judgment of the Trustee, necessary, and to pay their compensation

       from the Trust Property.” Appellant’s App. p. 42. It is undisputed that the trial

       court modified this, ruling that JCCF must seek prior authorization for third-

       party services that were not covered by its 1.5% fee, with the exception of

       brokerage fees and tax preparation fees. Both parties seem to agree that this

       issue primarily concerns the question of future attorney’s fees. The award of

       trustee’s attorney’s fees is “‘in the exercise of a sound discretion, and in the

       absence of an affirmative showing of error or abuse of discretion we must affirm

       [the trial court’s] order.’” Malachowski v. Bank One, Indpls., N.A., 682 N.E.2d

       530, 533 (Ind. 1997) (quoting Zaring v. Zaring, 219 Ind. 514, 523, 39 N.E.2d

       734, 737 (1942)).


[21]   In addition to the reasons justifying the fee limitation, JCCF was unable to

       identify any specific anticipated need for legal representation, with Richards

       noting that it was a possibility but that “I’m not sure what to tell you those
       Court of Appeals of Indiana | Opinion 41A01-1412-TR-513| June 19, 2015     Page 20 of 21
       expenses will be.” Tr. p. 68. It should also be noted that, as with the soft cap

       on fees, the trial court’s order specifically provided for Trust funds to be made

       available for third-party services should JCCF establish a need. Given the

       absence of evidence of any specific need for the services of a third-party

       attorney, we cannot say that the trial court abused its discretion in this regard.



                                                Conclusion
[22]   We conclude that the Attorney General properly preserved its issue for

       appellate review. We further conclude that JCCF’s arguments are ripe for

       appellate consideration. Finally, we conclude that the trial court did not abuse

       its discretion in imposing certain restrictions on JCCF’s administration of the

       Trust. Consequently, we affirm the judgment of the trial court in all respects.


[23]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




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