IN THE COURT OF APPEALS OF IOWA
No. 24-1247 Filed September 4, 2025
IN THE MATTER OF THE MEYERS FAMILY REVOCABLE TRUST
CARL GORMAN MEYERS and TERESA RENEE WOODLEY, Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County,
Clinton R. Boddicker, Judge.
Potential beneficiaries of a trust appeal the district court’s order finding the
devise to one of the beneficiaries adeemed. AFFIRMED AS MODIFIED.
Ryan D. Gerling of Cray Law Firm, PLC, Burlington, for appellants.
Timothy B. Gulbranson and Jenny L. Juehring of Lane & Waterman LLP,
Davenport, for appellee.
Considered by Ahlers, P.J., and Badding and Buller, JJ. 2
AHLERS, Presiding Judge.
This case is before us a second time. Siblings Teresa Woodley, Lora
Hickey, and Carl Meyers disagree about how assets from The Meyers Family
Revocable Trust (the Trust)—a trust established by their parents, Cathy and Paul
Meyers—should be distributed.
I. Factual and Procedural Background
The underlying facts of this case are undisputed and were thoroughly
summarized the first time this case was before our court. See In re Meyers Fam.
Revocable Tr., No. 22-0866, 2023 WL 3335996, at *1–3 (Iowa Ct. App. May 10,
2023). So we will not repeat them, but we will highlight the important ones.
Paul and Cathy Meyers executed wills and the agreement creating the Trust
on the same day in 2012. At that time, Paul and his son Carl each owned fifty
percent of the shares of Meyers & James Construction Company, Inc. (the
Company). Paul and Cathy’s wills provided that all property each of them owned
when they died would pass to the Trust and be distributed in accordance with the
terms of the Trust agreement. In relevant part, the Trust agreement provides that,
after both Paul and Cathy’s deaths, “[a]ll right, title, and interest in and to [the
Company] shall be distributed to Carl Gorman Meyers if he is living at said time.”
All remaining assets are to be distributed in equal shares to the three children.
In 2017, Paul and Carl entered a stock purchase agreement (Purchase
Agreement) whereby Paul sold his shares of stock in the Company to Carl for
$374,449.90. To satisfy the purchase price, Carl immediately paid Paul
$50,616.56 and executed a promissory note payable to Paul for the balance of
$323,833.34 (the Note). To secure payment of the Note, Carl also executed a 3
security agreement giving Paul a security interest in “[a]ll of [Carl]’s right, title and
interest in [the Company].”
About three years after he sold his shares of the Company to Carl, Paul
died, and Cathy died a few months later. All their assets passed to the Trust. Paul
and Cathy’s three children became co-trustees of the Trust, but Lora eventually
resigned, leaving Carl and Teresa as co-trustees.
A dispute developed between the three siblings regarding Carl’s obligation
to pay the remaining balance on the Note to the Trust. Carl and Teresa took the
position that Carl had no such obligation, and Lora took the position that he did.
Due to the dispute, the Trust’s attorney filed an application invoking the court’s
jurisdiction. Shortly thereafter, Carl and Teresa, as co-trustees, executed a
document declaring that the Trust “shall not assert that any amounts are owed to
the Trust by [Carl] for Carl[’s] previous purchase of [the Company].” In response,
Lora filed a petition against Carl and Teresa alleging a breach of trust and unjust
enrichment. Lora also sought attorney’s fees.
Lora filed a motion for summary judgment. Even though Lora hadn’t argued
that the bequest of the interest in the Company adeemed because Paul (and, after
Paul’s death, the Trust) no longer owned any such interest, the district court
granted Lora’s motion based on ademption and awarded attorney fees. Carl
appealed. Our court reversed and remanded for further proceedings because the
district court granted summary judgment based on ademption, an issue not raised
in Lora’s motion for summary judgment. Id. at *4.
On remand, Lora filed an amended petition alleging “breach of trust—duty
of loyalty and impartiality” (count I), “breach of trust—objection to accounting” 4
(count II), “unjust enrichment” (count III), and requesting attorney fees. Then she
filed a motion for partial summary judgment in her favor on count I or, alternatively,
on count III, and on her request for attorney fees. This time Lora raised an
ademption argument supporting her motion.
The district court granted Lora’s motion, agreeing that the bequest to Carl
had adeemed, determined Carl and Teresa breached their fiduciary duties as co-
trustees by seeking to avoid Carl’s obligation to pay the Trust the balance of the
Note, removed Carl and Teresa as co-trustees, and ruled that Lora would be
awarded attorney fees payable by Carl and Teresa individually upon Lora’s
submission of an attorney fee affidavit. Following Lora’s submission of an attorney
fee affidavit, the court ordered Carl and Teresa to each pay Lora $19,133.43 in
attorney fees. Carl and Teresa appeal. Lora asks us to affirm and to order Carl
and Teresa to pay her appellate attorney fees.
II. Discussion
Carl and Teresa raise three issues on appeal. They contend: (1) the district
court erred in concluding that the bequest to Carl of “[a]ll right, title, and interest in
and to [the Company]” adeemed; (2) the district court erred in concluding that Carl
and Teresa breached their fiduciary duties by declining to enforce the Note; and
(3) the district court erred in its award of attorney fees to Lora. We address each
issue in turn.
A. Ademption
We review the district court’s grant of summary judgment for correction of
errors at law. Villarini v. Iowa City Cmty. Sch. Dist., 21 N.W.3d 129, 133
(Iowa 2025). Summary judgment is proper only when there are no genuine issues 5
of material fact and the moving party is entitled to judgment as a matter of law. Id.
In considering a motion for summary judgment, we view the facts in the light most
favorable to the nonmoving party, including giving the nonmoving party every
legitimate inference that can be drawn from the record. Id.
Resolution of the dispute in this case, of course, calls for us to address
whether the Trust’s provision devising the interest in the Company to Carl
adeemed. More specifically, we are called upon to determine whether the Note
and security interests that Paul received in exchange for selling his shares in the
Company amount to an interest in the Company that Carl is entitled to receive. If
not, then the provision of the Trust devising the interest in the Company adeemed.
If Carl receives the Note, it will effectively eliminate his obligation to pay the Trust
the remaining balance owed on the Note, resulting in the Trust not receiving the
balance of the Note to distribute equally to the three siblings.
“[W]e have defined ademption as ‘a taking away’ and generally use it to
refer to removing or eliminating a specific bequest from a will or trust before the
death of the testator.” In re Steinberg Fam. Living Tr., 894 N.W.2d 463, 465 n.1
(Iowa 2017) (citing In re Est. of Anton, 731 N.W.2d 19, 23 (Iowa 2007)). “An
ademption occurs by ‘[t]he destruction or extinction of a testamentary gift by reason
of a bequeathed asset’s ceasing to be part of the estate at the time of the testator’s
death.’” Id. (quoting Ademption, Black’s Law Dictionary (10th ed. 2014)).
We begin our analysis of this issue by rejecting three of Carl and Teresa’s
arguments. First, we reject their contention that the Trust provision devising the
interest in the Company to Carl is not a specific bequest. The fact that the provision
states “[a]ll right, title, and interest in and to [the Company]” instead of simply “all 6
shares of the Company” doesn’t make the bequest any less specific. The fact
remains that the provision attempts to devise a specific item, namely all interest in
the Company. This is a specific bequest.
Second, we reject their contention that we cannot consider the Purchase
Agreement. Their contention is based on the legal principle that extrinsic evidence
cannot be considered to interpret the Trust provision at issue. But we do not look
to the Purchase Agreement to shed light on what that provision means. We look
to the Purchase Agreement as proof that Paul sold his shares of the Company to
Carl more than three years before Paul and Cathy died—facts that are undisputed.
Ademption, by its nature, involves an asset owned by a testator or trustor when
the applicable conveying instrument is executed that is no longer owned when the
time comes for distribution. Given this fact, we must consider evidence of what
happened to the asset to determine whether the bequest adeemed. That is why
we consider the Purchase Agreement and why we reject Carl and Teresa’s
contention that we cannot.
Third, we reject the claim that the Note is some type of right or interest in
the Company such that the Trust provision devising “[a]ll right, title, and interest in
and to [the Company]” to Carl applied to the Note. The Note is no such thing. Paul
sold his entire interest in the Company to Carl. In return, he received money and
a promise for more money (i.e., the Note). The Note is part of the proceeds of
Paul’s sale of his shares of stock in the Company to Carl; it is not a right or interest
in the Company.
With the rejection of those arguments in mind, we turn to the crux of the
matter. The Trust provision in question requires the Trust to distribute to Carl “[a]ll 7
right, title, and interest in and to [the Company].” Except for security interests
securing the Note—a topic we address later—we conclude that Paul owned no
right, title, or interest in the Company at the time of his death, so no such right,
title, or interest passed to the Trust. Therefore, the Trust had no such right, title,
or interest to distribute to Carl. But that does not fully resolve the dispute, as we
still need to determine whether the gift failed by ademption or Carl is entitled to the
proceeds of Paul’s sale of his shares of stock in the Company—namely the Note—
as a substitute for the interest in the Company itself.
Ademption occurs when an item of specifically bequeathed property is not
in the estate (or, in this case, a trust) at the time of the testator’s death. Steinberg,
894 N.W.2d at 468. In that event, the bequest is adeemed, or “taken away.” Id.
That is what happened here. The Trust agreement provided that, upon the death
of Paul and Cathy, “[a]ll right, title, and interest in and to [the Company]” was to be
distributed to Carl. But, except for a security interest, the Trust owned no such
property. Carl and Teresa argue that the Note is simply a different form of Paul’s
ownership of shares of stock of the Company. But, as noted previously, the Note
is proceeds from the sale of the shares of stock, but it is not any type of ownership
interest in the Company.
Our supreme court has repeatedly rejected the argument Carl and Teresa
make here that Carl should receive a substitute asset (i.e., the Note) when the
asset he was bequeathed (i.e., interest in the Company) is no longer owned by the
testator. For example, in In re Estate of Sprague, the testator’s will and codicil
bequeathed a specific parcel of real estate to her stepdaughters, but the testator
sold the real estate on contract before she died. 57 N.W.2d 212, 214 (Iowa 1953). 8
Despite the fact that the contract was clearly proceeds of the sale of the real estate,
the court found that the gift of the real estate adeemed and the stepdaughters were
not entitled to the proceeds from the sale (i.e., the contract), noting that “the subject
matter of the devise was a tract of real estate and not a contract to sell real estate.”
Id. at 216–17. The same is true here. The subject matter of the devise to Carl was
an interest in the Company and not a note from the sale of that interest.
Similarly, in In re Estate of Keeler, the testator’s will bequeathed to her son
a note secured by a mortgage on a parcel of real estate. 282 N.W. 362, 363–64
(Iowa 1938). But before the testator died, the owners of the real estate reconveyed
it to the testator in return for her surrendering and canceling the note and mortgage.
Id. at 363. When the testator died she owned the real estate, not the note and
mortgage bequeathed to her son, so the court found the bequest to the son had
adeemed. Id. at 365. In so finding, the court rejected the son’s “theory that the
subject matter of the bequest still exists but in a changed form.” Id. In rejecting
the argument, the court said:
At the time the will was made the testatrix owned a note, secured by a mortgage,—personal property. At the time she died she owned real estate, the note and mortgage having been surrendered and canceled; that obligation had been completely wiped out, just the same as if [the party that owed money under the note] had paid her in cash.
Id. The same reasoning applies here.
Finally, in In re Will of Miller, the testator’s will contained a specific bequest
of real estate to specified family members. 105 N.W. 105, 105 (Iowa 1905),
overruled on other grounds by Newbury v. McCammant, 182 N.W.2d 147 9
(Iowa 1970).1 Before the testator died, he sold the real estate to his son in return
for a promissory note. Id. The court found the issue to be “narrowed down to the
single question whether the promissory notes given to the testator for the price of
real estate sold by him are to be distributed under” the clause of the will specifically
bequeathing the real estate to specified family members, or whether the notes
passed under the residuary clause of the will. Id. at 106. The court answered this
question by holding that it is “well settled that upon sale of devised real property
by the testator the proceeds of such sale of which he may die possessed will not
be substituted for the property itself, unless a direction so to do is found in the will.”
Id. We have a closely analogous situation here with proceeds of the sale of a
specifically devised asset. As in Miller, we will not substitute proceeds for the
specifically devised property, as there is no direction to do so in the Trust
agreement.
From these cases, we conclude that the rule is that specific bequests of
property that the testator no longer owns at the time of distribution adeem and are
not replaced by proceeds. Part of the rationale behind this rule is that the testator
knows that the specifically bequeathed property has been disposed of and if they
didn’t want the bequest to adeem, they could have changed their will or trust. See
Sprague, 57 N.W.2d at 216 (“She knew that she had acquired an undivided interest
1 The language in Newbury partially overruling In re Will of Miller reads, “For reasons heretofore stated we agree with that observation and In re Will of Miller . . . is accordingly overruled insofar as inconsistent with this opinion.” Newbury, 182 N.W.2d at 151. It is not entirely clear in Newbury what observation the court was referring to or which parts of In re Will of Miller it found inconsistent with its opinion, but we will explain later in this opinion why we believe the overruling of Miller in Newbury is on a different ground than what we rely upon in this part of our opinion. 10
in a contract to sell the real estate and yet she did not change her will, although
she lived for some considerable time thereafter.”); Keeler, 282 N.W. at 366 (“[The
testator] had knowledge of the condition of her estate after she canceled the note
and mortgage. She knew that she had taken title to this real estate but she did not
change the will although she lived approximately a year and a half after she took
title.”). This rationale applies here with equal force. And to this we add the
observation that, if it had been Paul’s intent to cancel the Note (or transfer it back
to Carl) upon his death, such intent could have been expressed in the Note itself,
but it wasn’t.
Our case law recognizes exceptions to the above-described rule that
specific bequests of property that the testator no longer owns at the time of
distribution adeem and are not replaced by proceeds. One exception is when
specifically devised property is missing from the estate because of some act or
event involuntary as to the testator, such as when the testator’s attorney-in-fact or
guardian disposes of the property without the knowledge of the testator or when
the testator is incompetent, and proceeds are identifiable. See Anton, 731 N.W.2d
at 26–28 (refusing to find ademption of identifiable proceeds when the testator’s
attorney-in-fact sold specifically devised property without the testator’s
knowledge); In re Est. of Bierstedt, 119 N.W.2d 234, 236 (Iowa 1963) (“Where, as
here, the testator is incompetent and under guardianship, a sale by the guardian
does not work an ademption so far as the proceeds are traceable.”).
This exception does not apply here because there is no question that Paul
was competent and voluntarily sold the specifically bequeathed property after
executing the will and Trust agreement but before he died. Our cases recognize 11
that, when this exception does not apply, disposal of specifically devised property
amounts to ademption, including as to the property’s proceeds. See Anton, 731
N.W.2d at 27 (noting in a case involving identifiable proceeds that “[i]f [the testator]
was aware of the transaction, was aware of the impact the transaction had on her
estate plan, and did not change her will, ademption would, of course, occur under
the identity theory”); Bierstedt, 119 N.W.2d at 238 (“Our rulings in the Keeler,
Sprague, and Bernhard[2] cases . . . are sound and we adhere to them. We have
simply followed the prevailing view as to ademption by the acts of a guardian of an
insane or incompetent testator with his ward’s property.”); see also Steinberg, 894
N.W.2d at 469 (citing Anson and Bierstedt in noting “that our previous rulings
holding that property was adeemed when competent testators sold or otherwise
disposed of specific bequests were sound and would continue to control”).
A second exception applies in the situation presented in Newbury. 182
N.W.2d 147. In Newbury, the testator’s will directed her executor to sell specific
real estate and distribute the proceeds rather than distributing the real estate itself.
Id. at 148. But before she died, the testator sold the specific real estate on contract,
so there was nothing for the executor to sell. Id. As to the real estate at issue, she
owned only the rights in the contract and not the real estate itself. Id. The court
noted that “the gift is of proceeds from specified realty to be sold upon testatrix’
death. . . . Thus the gift never had identity as specified realty.” Id. at 150. Because
the gift had always been of proceeds and not the real estate itself, the court refused
to find ademption of the gift in the form of the contract because the contract was
2 In re Est. of Bernhard, 112 N.W. 86 (Iowa 1907). 12
proceeds that were “(1) identifiable, (2) found in the estate, and (3) constitute
identical property which testatrix intended should pass to [the named beneficiaries
of the specific bequest].” Id. at 151.
Here, if the Trust agreement directed the trustees to sell “[a]ll right, title, and
interest in and to [the Company]” and distribute the proceeds to Carl, then the
exception in Newbury may apply. But that is not what happened here. Here, the
gift directed by the Trust agreement was to give Carl “[a]ll right, title, and interest
in and to [the Company],” not the proceeds of any such right, title, or interest. As
a result, the third requirement to trigger the exception recognized in Newbury—
specifically that the proceeds constitute identical property to that intended to be
passed—has not been met. Therefore, the exception does not apply, and
ademption prevents giving Carl the Note that represents the proceeds of Paul’s
sale of his shares of stock in the Company.3
Based on the above, we conclude that the district court correctly ruled that
the gift of “[a]ll right, title, and interest in and to [the Company]” does not include
the Note and Carl is not entitled to receive the Note or be relieved from its
obligations under the provisions of the Trust.
But, as previously alluded to, we reach a different conclusion with respect
to the security interests securing the Note. Those security interests fall within the
grant of “[a]ll right, title, and interest in and to [the Company].” As a result, we find
3 As noted in footnote 1, Newbury noted that it overruled In re Will of Miller “insofar
as inconsistent with” the Newbury opinion. We interpret this limited overruling of Miller to refer to the exception recognized in Newbury just described. As we have determined that exception does not apply, we also determine that the limited overruling of Miller does not apply to the general rule that Miller follows as described earlier in this opinion. 13
that the Trust agreement gives those security interests to Carl, so the collateral in
the form of security interests in the Company is released. In short, Carl still owes
the outstanding balance of the Note, but the Note is no longer secured by any
security interests in favor of the Trust. The district court’s order is modified
accordingly.
B. Breach of Fiduciary Duty
After finding that the gift of all interest in the Company to Carl adeemed, the
district court determined that Carl and Teresa breached their fiduciary duties as co-
trustees by trying to give the Note to Carl and relieve him of the obligation to pay
the Note’s outstanding balance. As a consequence, the district court removed Carl
and Teresa as co-trustees and appointed a bank as the trustee. Carl and Teresa
challenge this finding and action by the district court.
The remedies for breach of trust by a trustee are exclusively equitable, and
any action for such breach is to be addressed in a court of equity. Iowa Code
§ 633A.4501(2) (2021). As an equitable proceeding, our review is de novo. Iowa
R. App. P. 6.907.
Carl and Teresa contend they did not breach their fiduciary duties because
they had a good faith belief that their actions of trying to relieve Carl from his
obligation under the Note were justified. We disagree. A breach of any duty a
trustee owes to a beneficiary is a breach of trust. Iowa Code § 633A.4501(1).
Remedies for a breach of trust include removal of the trustee. Id.
§ 633A.4502(1)(e).
We start our analysis by identifying several duties trustees have. Trustees
have a duty to administer the trust “solely in the interest of the beneficiaries” and 14
to “act with due regard to their respective interests.” Id. § 633A.4202(1). Trustees
are also prohibited from engaging in self-dealing and from obtaining personal
advantage from trust property. Orud v. Groth, 708 N.W.2d 72, 79 (Iowa 2006); see
also Iowa Code § 633A.4202(2) (permitting a beneficiary to void “[a]ny transaction
involving the trust which is affected by a material conflict between the trustee’s
fiduciary and personal interests”). They also have the duty to “take reasonable
steps to enforce claims of the trust.” Iowa Code § 633A.4211.
Following our de novo review, we find that Carl and Teresa violated all the
above-described duties. It is clear that the Note was not an interest in the
Company such that Carl should be relieved of his obligation to satisfy the Note by
paying its outstanding balance to the Trust to be distributed equally to the three
siblings.4 Carl’s efforts to forgive the outstanding balance owed on the Note—
efforts in which Teresa was complicit—was a failure to administer the trust solely
in the interest of beneficiaries, a form of self-dealing intended to gain a personal
advantage, and a failure to take reasonable steps to enforce the Trust’s claims to
receiving the outstanding balance of the Note to distribute to all beneficiaries.
Based on this conduct, both Carl and Teresa committed a breach of trust, and the
4 And even if we assumed for the sake of argument this was not clear, it was clear
that there was at least a question about the propriety of trying to relieve Carl from responsibility for payment of the Note. As such, at the very least, Carl and Teresa should have invoked the court’s jurisdiction to resolve the question. See Iowa Code § 633A.6101 (allowing any interested party to invoke the court’s jurisdiction to address affairs of the trust); see also id. § 633A.4202(2)(c) (permitting an exception to the voidability of a transaction involving a conflict between a trustee’s fiduciary and personal interests if “[t]he transaction is approved by the court after notice to interested parties”). Yet Carl and Teresa did not invoke the court’s jurisdiction to resolve the question after notice to Lora. Instead, they simply declared that the Trust would not be seeking to collect the outstanding balance owed on the Note. 15
district court was correct in so finding. See id. § 633A.4501(1) (“A violation by a
trustee of a duty the trustee owes a beneficiary is a breach of trust.”). We also
agree with the district court’s decision to remove Carl and Teresa as trustees as a
consequence of their breaches. See id. § 633A.4502(1)(e) (granting power of
removal). They have demonstrated an inability to deal fairly with Lora as it relates
to the Note, and we see no purpose in setting the table for future fights by letting
Carl and Teresa continue as trustees. We affirm on this issue.
C. Attorney Fees
Carl and Teresa lodge multiple challenges to the district court’s order
requiring them to pay Lora’s attorney fees. Lora contends that Carl and Teresa
failed to preserve error on their challenges. To address these issues, we put Carl
and Teresa’s challenges into two categories: (1) those challenging individual items
and categories of fees listed on the attorney fee affidavit submitted by Lora’s
attorney, including challenges based on claims of prior fee awards, prior denial of
fees, and prior payment of fees; and (2) those based on the decision to award fees
and the general amount thereof.
As to the first category of challenges, we find that Carl and Teresa never
raised them to the district court. Because they never made them, the district court
never addressed them, so they are not preserved for our consideration. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). By first raising these challenges
on appeal, Carl and Teresa are asking us to be a court of first view rather than a
court of review. That is not our role. See Plowman v. Fort Madison Cmty. Hosp.,
896 N.W.2d 393, 413 (Iowa 2017) (noting that an appellate court is “a court of
review, not of first view” (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 16
(2005))). We understand that the district court ruled on Lora’s attorney-fee claim
so quickly after she filed the attorney fee affidavit that Carl and Teresa may not
have had time to resist it and tell the court why they resisted it (i.e., make the
challenges they now make on appeal). Nevertheless, they certainly had time to
file a motion under Iowa Rule of Civil Procedure 1.904(2) or some other motion
asking the court to address their objections. A rule 1.904(2) or other motion calling
the court’s attention to its omission is required to preserve error when the district
court fails to address an issue the party desires to address on appeal. Meier, 641
N.W.2d at 539. As Carl and Teresa did not do that, the first category of challenges
are not preserved for our review.
As to the second category of challenges, because the court ruled on the
issue by awarding fees and setting an amount, there is a ruling preserved for our
review. We review for abuse of discretion. In re Trust No. T-1 of Trimble, 826
N.W.2d 474, 482 (Iowa 2013).
The court awarded fees under Iowa Code section 633A.4507, which
provides:
In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.
Our supreme court has adopted nonexclusive criteria for interpreting what justice
and equity require under section 633A.4507:
[G]eneral criteria drawn from other types of cases provide nonexclusive guides. These include (a) reasonableness of the parties’ claims, contentions, or defenses; (b) unnecessarily prolonging litigation; (c) relative ability to bear the financial burden; (d) result obtained by the litigation and prevailing party concepts; and 17
(e) whether a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons in the bringing or conduct of the litigation.
Trimble, 826 N.W.2d at 491 (quoting Atwood v. Atwood, 25 P.3d 936, 947 (Okla.
Ct. App. 2001)). The district court applied these nonexclusive criteria in approving
Lora’s claim of $38,266.86 when it noted
the complexity and nature of the issues raised by the . . . motion for summary judgment, the protracted nature of the litigation between Lora Hickey and he[r] co-beneficiaries Carl Meyers and Teresa Woodley, and the time necessary . . . for Lora Hickey’s attorney to present her claim and obtain[] a ruling by the court.
We find no abuse of the court’s discretion in awarding fees and setting the amount.
We affirm on this issue.
III. Lora’s Claim for Appellate Attorney Fees
Lora asks us to order Carl and Teresa to pay her attorney fees incurred for
this appeal. The same statute that permits Lora to claim attorney fees at the district
court—section 633A.4507—permits her to claim appellate attorney fees, as the
statute does not exclude such claim. See Abernethy v. Schmitt, 879 N.W.2d 866,
869 (Iowa Ct. App. 2016) (“Attorney fees are permitted to be awarded when
allowed by statute, and when not expressly excluded, appellate attorney fees may
be awarded as well.”). We consider the same nonexclusive criteria identified in
Trimble. 826 N.W.2d at 491. The first, second, and fourth criteria—
reasonableness of Carl and Teresa’s claims, unnecessarily prolonging litigation,
and prevailing party concepts—cut in favor of awarding fees, as Lora is the
prevailing party and she has had to defend an appeal in which Carl and Teresa
have taken a largely defenseless position. As to relative ability to bear the financial
burden, the record does not provide us with enough information to assess this 18
criteria, so we view it as a neutral one. As to the final criteria, although we find
Carl and Teresa’s position to be largely baseless, we do not find them to have
acted in bad faith, vexatiously, wantonly, or for oppressive reasons in the conduct
of the litigation. Balancing these criteria and also considering the sizeable award
of district court fees, we find that Lora should bear the cost of her appellate attorney
fees without contribution from Carl or Teresa.
IV. Conclusion
We affirm the district court’s order in all respects as to ademption of the
specific bequest to Carl as described in this opinion, except we modify it to provide
that the security interests in the Company held by the Trust are released to Carl
and extinguished. We affirm the decision finding that Carl and Teresa breached
their fiduciary duties and the decision to remove them as trustees of the Trust. We
also affirm the district court’s award of attorney fees, finding much of the challenge
to the award unpreserved and no abuse of discretion as to the issues that were
preserved. Finally, we decline to order Carl or Teresa to pay Lora’s appellate
attorney fees for this appeal. Costs are assessed equally to Carl and Teresa.
AFFIRMED AS MODIFIED.