In the Matter of the Estate of Barbara Mouchague.
Standing is a component of subject matter jurisdiction, which
any party, or the court on its own motion, may raise at any
Whether a party has standing in a judicial action, like other
jurisdictional issues, presents a question of law over which
an appellate court's scope of review is unlimited.
determination of jurisdiction and standing rests on the facts
in existence at the time of filing.
Generally, the trustee, rather than a beneficiary of the
trust, is the proper party to sue or defend actions and
claims affecting the trust. An exception to that rule permits
a beneficiary of a trust to sue or defend when the trustee
improperly or unreasonably refuses to do so.
Kansas Uniform Trust Code charges the trustee with a duty to
prosecute or defend legal actions to protect trust property.
This duty includes taking reasonable steps to enforce or
realize on other claims held by the trust and to defend
actions that may result in a loss to the trust estate.
Reasonable steps may include appealing to a higher court when
the costs and risk of litigation make such a decision
reasonable under all the circumstances.
party seeking to avail himself or herself of an exception to
a general rule carries the burden of establishing the facts
necessary to invoke the provisions of that exception. Here,
the beneficiary of the trust bears the burden to show that
the trustee improperly or unreasonably failed to protect
their interest by not appealing a judgment.
party seeking attorney fees on appeal must attach to the
motion an affidavit that specifies the nature and extent of
the services rendered, the time expended on the appeal, and
the factors considered in determining the reasonableness of
a fee applicant fails to submit an affidavit containing the
required detail, as required by Supreme Court Rule 7.07(b)(2)
(2019 Kan. S.Ct. R. 50), this court has no ability to
determine the reasonableness of fees incurred on appeal.
from Johnson District Court; Michael P. Joyce, judge.
D. Lewis, of Gardner, for appellants Patricia and Leonard
Michelle M. Burge, of Kirkland Woods & Martinsen LLP, of
Overland Park, for appellee Terry Diehl, executor of the
Estate of Barbara Mouchague.
Bruns, P.J., Schroeder and Gardner, JJ.
appeal pertains to ongoing litigation between Terry
Chamberlain Diehl (the executor for the estate of Barbara A.
Mouchague) and Leonard and Patricia Kowalski, beneficiaries
of Mouchague's trust. In addition to the probate case,
the parties have been involved in three civil actions below
which we need not detail. In this appeal, the Kowalskis claim
the probate court erred in awarding attorney fees and
expenses to Diehl resulting from one of the civil cases and
for previously appealing that case-a case to quiet the
Kowalskis' claim to the title and secure Mouchague's
property as belonging to the estate. Diehl responds that the
Kowalskis, as beneficiaries of Mouchague's trust but not
of the estate being litigated in probate court, lack standing
to bring this appeal. We agree, finding that the trustee is
the proper party to bring an action affecting the trust and
that the Kowalskis have not shown that the trustee breached
its fiduciary duty so as to permit them to appeal instead of
has also moved for an award of attorney fees incurred in
defending this appeal. But she has failed to include in her
affidavit the specific detail required by our Rule, so we
deny that motion.
and Procedural Background
Barbara A. Mouchague died in December 2012, Terry Chamberlain
Diehl was appointed the executor of her estate. The sole
beneficiary of the estate is the Barbara A. Mouchague Trust.
The Country Club Trust Company serves as its trustee but is
not a party to this appeal. The trust names four
beneficiaries: Leonard Kowalski, Patricia Kowalski, and two
charitable organizations. The parties to this appeal are
Diehl, as the executor of Mouchague's estate, and the
Kowalskis, who have an 80% equitable interest in the
appeal has a complicated history because in addition to the
probate case, the parties have been involved in three
underlying civil cases which the district court tried
together. One of those cases is relevant here. In 14 CV 4300,
Diehl, in her capacity as executor, sued to set aside a joint
tenancy deed in the Kowalskis' and Mouchague's names
and to quiet title in the estate when she was gathering
estate property. The district court ruled in favor of Diehl
on the quiet title action and then ordered the Kowalskis to
pay Diehl's attorney fees and expenses of over $60, 000.
The Kowalskis appealed. This court reversed and vacated the
fee award on appeal, finding that the fees could not be
assessed against the Kowalskis because no contractual or
statutory basis for doing so was shown. Diehl v.
Kowalski, No. 114, 706, 2016 WL 6651575, at *4 (Kan.
App. 2016) (unpublished opinion). The general rule thus
applied that litigants are responsible for their own attorney
fees. Robinson v. City of Wichita Employees'
Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d
15 (2010). This court also stated that the fee award in the
quiet title action was not a fee award in the probate
proceeding and that the district court had expressly deferred
ruling on fees in the probate case until the estate was
closed. Kowalski, 2016 WL 6651575, at *1.
this court vacated the award for attorney fees in the quiet
title action, Diehl petitioned the probate court under K.S.A.
59-1717 for payment of those same fees and expenses. The
district court again awarded Diehl the attorney fees and
litigation expenses related to the quiet title action but
this time assessed them against the decedent's estate
instead of against the Kowalskis personally.
also petitioned the district court for an award of her
attorney fees incurred in defending against the
Kowalskis' appeal in the quiet title
action-Kowalski, 2016 WL 6651575. The court at first
denied Diehl's requested appellate attorney fees, holding
that all legal fees and expenses incurred in an appeal must
be addressed by appellate courts under Kansas Supreme Court
Rule 7.07 (2019 Kan. S.Ct. R. 50). Diehl then sought her fees
from the Kansas Court of Appeals under Rule 7.07 but was
unsuccessful. She then petitioned the district court again
for the award under K.S.A. 59-1717, and the district court
awarded the fees.
Kowalskis appeal, challenging the probate court's award
of Diehl's attorney fees and expenses to pursue the quiet
title action and to defend that award on appeal. They contend
that Diehl cannot seek fees now because Diehl failed to
appeal from the original fee award against the Kowalskis in
2015. Although the Kowalskis appealed that fee award, giving
rise to the quiet title action, Diehl did not. The Kowalskis
also argue that the probate court abused its discretion by
not requiring proper segregation of fees, that the amount of
fees the probate court awarded was excessive and
unreasonable, and that the probate court lacked jurisdiction
to award fees incurred on appeal.
that Diehl moved to strike the Kowalskis' notice of
appeal because it stated that the appeal was being filed on
behalf of the trustee and the other beneficiaries of the
trust, but neither the Country Club Trust Company nor the
beneficiaries other than the Kowalskis joined the appeal. The
district court denied Diehl's motion to strike the
Kowalskis Have Standing to Appeal the District Court's
Ruling in ...