In re Masek Family Trust

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
In re Charles and Patricia Masek Family Trust.
Barry Masek, individually and as Administrator of
the Estate of Patricia Masek, deceased, appellee and
cross-appellant, and Colleen Eames, appellee, v.
Mark Masek and Dianne Yahiro, appellants
and cross-appellees.
___ N.W.3d ___
Filed January 10, 2025. 	No. S-23-856.
1. Judgments: Appeal and Error. The construction of a mandate issued
by an appellate court presents a question of law on which an appellate
court is obligated to reach a conclusion independent of the determination
reached by the court below.
2. Trusts: Equity: Appeal and Error. Trust administration matters are
reviewed for error appearing on the record, absent an equity question or
question of law, which are instead reviewed de novo.
3. Judgments: Appeal and Error. For errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Judgments: Questions of Law: Claim Preclusion: Issue Preclusion:
Appeal and Error. The applicability of claim and issue preclusion is a
question of law. On a question of law, an appellate court reaches a con-
clusion independent of the court below.
5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
6. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
7. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
8. Attorney Fees. When an attorney fee is authorized by statute or a uni-
form practice and procedure, the amount of the fee is addressed to the
discretion of the trial court.
9. ____. Whether a statute or a uniform course of procedure authorizes
attorney fees presents a question of law.
10. Appeal and Error. A notice of appeal from a nonappealable order does
not render void for lack of jurisdiction acts of the trial court taken in the
interval between the filing of the notice and the dismissal of the appeal
by the appellate court.
11. Evidence: Words and Phrases. Competent evidence is evidence that is
admissible and tends to establish a fact in issue.
12. Trial: Evidence: Proof. Where a party has shown that competent
evidence exists to support his or her burden of proof, and competent
evidence to the contrary has been produced, or different conclusions
or inferences may reasonably be drawn from the evidence, it is then
exclusively the province of the fact finder to determine the weight of the
evidence and judge the credibility of witnesses.
13. Actions: Appeal and Error. Law of the case is a procedural doctrine
that bars reconsideration of the same or similar issues at successive
stages of the same suit or prosecution. The doctrine reflects the prin-
ciple that an issue litigated and terminally decided in one stage of a case
should not be later resuscitated at a later stage.
14. Appeal and Error. Under the law-of-the-case doctrine, the holdings
of an appellate court on questions presented to it for review become
the law of the case. Thereafter, unless the facts presented on remand
are shown by the petitioner to be materially and substantially different,
the appellate court’s holdings conclusively settle all matters ruled upon,
either expressly or by necessary implication.
15. Estoppel. Judicial estoppel is to be applied with caution so as to avoid
impinging on the truth-seeking function of the court, because the doc-
trine precludes a contradictory position without examining the truth of
either statement.
16. Appeal and Error: Words and Phrases. In appellate procedure, a
“remand” is an appellate court’s order returning a proceeding to the
court from which the appeal originated for further action in accordance
with the remanding order.
17. Courts: Appeal and Error. When a lower court is given specific
instructions on remand, it must comply with the specific instructions and
has no discretion to deviate from the mandate.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
18. Judgments: Courts: Appeal and Error. When the judgment of a trial
court is reversed on appeal and the cause remanded without specific
instructions, it is the duty of the trial court to exercise its discretion in
the further disposition of the case.
Appeal from the County Court for Gage County, Steven B.
Timm, Judge. Affirmed as modified.
Matt Catlett, of Law Office of Matt Catlett, for appellants.
Douglas W. Ruge II for appellee Barry Masek.
William E. Seidler, Jr., of Seidler & Seidler, P.C., for appel-
lee Colleen Eames.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
This trust administration matter returns to this court after
proceedings on remand. Barry Masek, a contingent beneficiary
and successor cotrustee of an irrevocable family trust, alleged
in the initial proceedings that his siblings Mark Masek and
Dianne Yahiro, who were also contingent beneficiaries and
successor cotrustees, had breached the trust. Barry asserted
that Mark and Dianne had blocked access to the siblings’
mother, Patricia Masek, who was settlor, beneficiary, and
trustee, and that Mark and Dianne misused trust assets for
their own benefit. Patricia later died, and the county court ulti-
mately entered a money judgment against Mark and Dianne in
favor of Barry and overruled Mark and Dianne’s motion for
new trial.
Mark and Dianne appealed the denial of their motion for
new trial. Because the county court’s judgment did not state
the legal basis for finding Mark and Dianne liable for breach
of trust, we reversed the decision and remanded the cause
for further proceedings. See In re Masek Family Trust, 312
Neb. 94, 977 N.W.2d 919 (2022). On remand, the county
court received additional evidence and determined that “Mark

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Nebraska Supreme Court Advance Sheets
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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
and Dianne are liable to the trust by participating in a breach
of trust committed by Patricia or, more likely, by inducing
Patricia to commit breach while she was in their care and con-
trol.” The county court essentially issued the same judgment
it had issued previously. Mark and Dianne now appeal, and
Barry cross-appeals. Mark and Dianne mainly claim that the
evidence does not support the judgment. We conclude that the
evidence supports the judgment with respect to some expendi-
tures, but not others, and we modify the language that awarded
judgment in favor of Barry. We otherwise reject the remaining
arguments. Therefore, we affirm, as modified.
I. BACKGROUND
1. Masek Family Trust
Charles Masek and his wife, Patricia, created a family trust
in 1993. At that time, they had five living children: Barry,
Mark, Dianne, Colleen Eames, and Richard Masek. The trust
named Charles and Patricia cotrustees. Under the terms of the
trust, when Charles died in 2000, Patricia became sole trustee
and the trust became irrevocable. The trust allowed the trustee
to distribute trust assets for specified reasons, including the
trustee’s “care, maintenance, comfort, and enjoyment” as the
trustee “deems advisable” and “medical expense, support and
maintenance of [the] surviving spouse” “as may be neces-
sary.” The trust provided that upon Patricia’s death, all assets
would eventually be distributed to the children according to
the terms of the trust. As amended, the trust named all five
children as successor cotrustees. The trust further included
terms to disqualify a trustee due to disability.
2. Barry Alleges Breach of Trust
Around 2014, Barry, Mark, Dianne, and Colleen agreed that
Patricia, born in 1935, should no longer reside independently.
Patricia was living in Nebraska with Richard, an adult with
disabilities. Mark and Dianne moved Patricia and Richard to
Illinois to live with Dianne. Much litigation ensued in Illinois
and Nebraska.

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318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
Relevant here, in 2020, Barry initiated trust administration
proceedings in the county court against Mark and Dianne.
Barry sought damages and other relief. He alleged Patricia
had cognitive impairments and was not capable of managing
trust assets or acting as trustee. According to Barry, Mark and
Dianne had blocked access to Patricia and trust records and
had used trust assets for themselves. He also alleged that Mark
and Dianne had “amended the [t]rust” to appoint one or both
of them trustees. Barry claimed that pursuant to the Nebraska
Uniform Trust Code, Mark and Dianne should be removed as
trustees and be ordered to pay damages for breach of trust. See
Neb. Rev. Stat. §§ 30-3890 and 30-3891 (Reissue 2016).
3. Initial Evidentiary Hearing
In September 2020, the county court conducted an eviden-
tiary hearing on Barry’s pleading; Mark and Dianne did not
appear. The county court received exhibits and heard testimony
by Barry. We summarize that evidence in more detail in the
analysis section below.
4. Initial County Court Order
In October 2020, the county court entered a default judg-
ment. The county court entered judgment of $1,276,858 against
Mark and Dianne, plus costs, “in favor of . . . Barry . . .
as Guardian and Conservator for Patricia . . . , Trustee and
Beneficiary of the Charles and Patricia Masek Family Trust.”
The county court also awarded attorney fees to Barry in the
same capacity, in the amount of $10,306.25. The county court
denied Barry’s other requests for relief, indicating in its find-
ings that Mark and Dianne were not trustees.
5. Patricia Dies; Motion for
New Trial Overruled
Mark and Dianne moved for new trial. In part, they alleged
that the county court’s decision was not sustained by suf-
ficient evidence pursuant to Neb. Rev. Stat. § 25-1142(6)
(Reissue 2016).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
Thereafter, Patricia died. Upon Barry’s motion, the county
court revived the judgment “in [Barry’s] name as Administrator
and Representative for the Estate of Patricia . . . , deceased.”
The county court next overruled Mark and Dianne’s motion
for new trial, finding that Mark and Dianne had failed to estab-
lish statutory grounds for new trial.
6. Reversal and Remand on Appeal
Mark and Dianne appealed from the order overruling their
motion for new trial. They contended, among other things,
that (1) the county court issued a judgment contrary to its
own findings; (2) “the county court erred in entering judg-
ment in favor of Barry as guardian and conservator of Patricia
because the trust itself would be entitled to judgment”; and
(3) “the county court’s judgment was not sustained by the
evidence because the evidence ‘concerned only Patricia’s per-
sonal funds, not Trust funds.’” See In re Masek Family Trust,
312 Neb. 94, 104, 977 N.W.2d 919, 926 (2022), citing brief
for appellants in case No. S-21-552.
We considered every contention Mark and Dianne raised
and wholly rejected all but one: that the county court issued
a judgment contrary to its own findings by ruling that Mark
and Dianne were liable for breach of trust, while also finding
that Mark and Dianne were not trustees. We concluded that
we could not resolve whether the judgment was sustained by
sufficient evidence for purposes of § 25-1142(6), because the
county court did not identify a legal theory of liability.
Our analysis recognized two possible legal theories under
which Mark and Dianne could be held liable to the trust: (1)
as de facto trustees or (2) as beneficiaries who participated
in a breach of trust committed by the trustee, by, for exam-
ple, inducing the trustee to commit breach. As to the second
theory, we found instructive the analytical framework of the
Restatement (Third) of Trusts § 104 (2012). We concluded:
[W]e reverse, and remand to the county court for further
proceedings consistent with this opinion, including, but

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318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
not limited to, conducting a hearing wherein the par-
ties would have the opportunity to present evidence or
arguments concerning [Mark and Dianne’s] liability to
the trust either as de facto trustees or by participating in
a breach of trust committed by Patricia, or by inducing
Patricia to commit breach while she was in their care
and control.
In re Masek Family Trust, 312 Neb. at 107, 977 N.W.2d at 928.
7. Hearing on Remand
At the hearing on remand, Barry, Mark, Dianne, and Colleen
testified. The county court received the testimony and exhibits
produced at the previous hearing, in addition to other exhibits.
The analysis section below recounts the relevant evidence pre-
sented on remand.
8. County Court’s Order on Remand
Following the hearing on remand, the county court issued
what it styled as an order. The county court expressly found
Dianne’s testimony to be the least credible. As for Colleen’s
positions, the county court deemed them to be consistently in
the trust’s best interests. And it found the testimonies of Barry
and Mark to “fall somewhere between the two.”
Considering the evidence from both hearings, the county
court made factual findings and determined that “Mark and
Dianne are liable to the trust by participating in a breach of
trust committed by Patricia or, more likely, by inducing Patricia
to commit breach while she was in their care and control.” The
county court further found, “Because of Patricia’s diminished
capacity the Court does not believe that she knowingly com-
mitted a breach of the trust.”
The county court again entered judgment against Mark
and Dianne in the amount of $1,276,858 plus costs, this
time in favor of Barry “as executor of the Estate of Patricia
Masek, trustee and beneficiary of the Charles and Patricia

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
Masek Family Trust.” It again awarded Barry attorney fees
of $10,306.25. The county court ordered, “[T]his court shall
retain jurisdiction to hold a hearing on additional requested
attorney fees” in late September 2023.
9. Attorney Fees, Notices of Appeal,
and Cross-Appeal
Prior to the hearing on additional requested attorney fees,
Mark and Dianne filed a notice of appeal. Barry thereafter
moved for summary dismissal, asserting there was no final
order because the county court had not ruled on the matter of
additional attorney fees.
While Barry’s motion for summary dismissal was still pend-
ing, the county court conducted the hearing on additional attor-
ney fees and received evidence, as described in our analysis
below. The county court awarded Barry additional attorney
fees for the period following our mandate in In re Masek
Family Trust, 312 Neb. 94, 977 N.W.2d 919 (2022).
Mark and Dianne again filed a notice of appeal, which our
clerk docketed as the present appeal. This court dismissed the
earlier appeal for lack of jurisdiction, pursuant to Neb. Ct. R.
App. P. § 2-107(B)(1) (rev. 2022).
II. ASSIGNMENTS OF ERROR
Mark and Dianne assign, rephrased, that the county court
erred in (1) imposing liability against Mark and Dianne; (2)
making certain evidentiary rulings; (3) entering judgment “‘in
favor of Barry . . . as executor of the Estate of Patricia Masek,
trustee and beneficiary of the Charles and Patricia Masek
Family Trust’”; and (4) awarding “additional attorney fees”
to Barry.
On cross-appeal, Barry assigns that to the extent the county
court’s order considered whether there was sufficient evidence
to support the underlying judgment, it erred. Barry’s cross-
appeal also assigns that we lack appellate jurisdiction.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
III. STANDARD OF REVIEW
[1] The construction of a mandate issued by an appellate
court presents a question of law on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. Darling Ingredients v. City of
Bellevue, 313 Neb. 853, 986 N.W.2d 757 (2023).
[2,3] Trust administration matters are reviewed for error
appearing on the record, absent an equity question or ques-
tion of law, which are instead reviewed de novo. In re Masek
Family Trust, supra. For errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id.
[4] The applicability of claim and issue preclusion is a
question of law. On a question of law, we reach a conclusion
independent of the court below. Boone River, LLC v. Miles,
314 Neb. 889, 994 N.W.2d 35 (2023), modified on denial of
rehearing 315 Neb. 413, 996 N.W.2d 629.
[5-7] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make dis-
cretion a factor in determining admissibility. Tilson v. Tilson,
307 Neb. 275, 948 N.W.2d 768 (2020). A trial court has the
discretion to determine the relevancy and admissibility of evi-
dence, and such determinations will not be disturbed on appeal
unless they constitute an abuse of that discretion. Id. Apart
from rulings under the residual hearsay exception, an appellate
court reviews for clear error the factual findings underpinning
a trial court’s hearsay ruling and reviews de novo the court’s
ultimate determination to admit evidence over a hearsay objec-
tion or exclude evidence on hearsay grounds. Id.
[8,9] When an attorney fee is authorized by statute or a
uniform practice and procedure, the amount of the fee is
addressed to the discretion of the trial court. BCL Properties
v. Boyle, 314 Neb. 607, 992 N.W.2d 440 (2023). However,

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
whether a statute or a uniform course of procedure authorizes
attorney fees presents a question of law. Id.
IV. ANALYSIS
1. Jurisdiction
[10] Before addressing the merits, we consider Barry’s argu-
ment that this court lacks jurisdiction over Mark and Dianne’s
appeal. We understand Barry to argue that after the premature
appeal was filed, the county court was divested of jurisdiction
such that no additional appeal could be perfected. We have
explained, however, that a notice of appeal from a nonappeal-
able order does not render void for lack of jurisdiction acts of
the trial court taken in the interval between the filing of the
notice and the dismissal of the appeal by the appellate court.
See Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
Therefore, Mark and Dianne’s premature appeal had no effect
on whether they could file the present appeal.
2. Beneficiary Liability
Because we have jurisdiction, we can examine the merits of
the county court’s judgment, which was based on the theory
that Mark and Dianne were liable to the trust as beneficiaries.
Mark and Dianne claim that the judgment was in error. No
party contends that whether a beneficiary is liable for breach
of trust presents an equity question. Instead, the parties’ argu-
ments, Mark and Dianne’s especially, assume review for errors
on the record, because they primarily dispute whether the
county court’s judgment was supported by competent evidence.
See In re Masek Family Trust, 312 Neb. 94, 977 N.W.2d 919
(2022) (for errors appearing on record, inquiry is whether deci-
sion conforms to law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable). We follow
the parties’ lead and review the county court’s judgment for
errors on the record by considering whether it was supported
by competent evidence.

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
[11,12] Competent evidence is evidence that is admissible
and tends to establish a fact in issue. In re Estate of Walker,
315 Neb. 510, 997 N.W.2d 595 (2023). Where a party has
shown that competent evidence exists to support his or her
burden of proof, and competent evidence to the contrary has
been produced, or different conclusions or inferences may
reasonably be drawn from the evidence, it is then exclusively
the province of the fact finder to determine the weight of the
evidence and judge the credibility of witnesses. Id. As we
will explain, ultimately, we find that competent evidence sup-
ported the district court’s conclusion that some, but not all,
of the expenditures upon which the judgment was based were
breaches of the trust.
(a) Theory of Liability
As described above, our opinion in In re Masek Family
Trust, supra, identified the Restatement (Third) of Trusts § 104
(2012) as a possible legal basis for finding Mark and Dianne
liable to the trust. The Restatement, supra, § 104(1) at 90, pro-
vides that “[a] beneficiary is not personally liable to the trust
except to the extent . . . the trust suffered a loss resulting from
a breach of trust in which the beneficiary participated.” This
was the theory of liability that the county court implemented
in its order on remand when it found that “Mark and Dianne
are liable to the trust by participating in a breach of trust
committed by Patricia or, more likely, by inducing Patricia to
commit breach while she was in their care and control.” On
appeal, Mark and Dianne do not claim that the county court
applied the wrong theory of liability to the circumstances in
this case, so we do not address that question. Instead, Mark
and Dianne claim that there was insufficient evidence to sup-
port the county court’s decision under the theory it identified.
We discuss the parties’ arguments related to that point below
in the context of the Restatement’s legal framework.
But first, we address the burden of proof. At issue in this
case is whether there was sufficient evidence that Mark and

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
Dianne participated in a breach of trust by Patricia, who was
then the sole trustee. The Restatement, supra, § 100, comment
f. at 68, specifically sets forth the burden of proof to show
a breach of trust by a trustee: “When a plaintiff brings suit
against a trustee for breach of trust, the plaintiff generally bears
the burden of proof.” We have recognized this as a general
principle of trust law, see In re Estate of Graham, 301 Neb.
594, 919 N.W.2d 714 (2018), and the parties have not given
us any compelling reason to apply a different burden of proof.
Therefore, in the sections that follow, we analyze whether
Barry carried his burden of proof on his claim that Mark and
Dianne, as beneficiaries, are liable for breach of trust.
(b) Nature of Funds at Issue
Before discussing whether Mark’s and Dianne’s actions
support beneficiary liability, one preliminary issue we must
take up is the nature of the funds that make up the judgment.
In opposing the county court’s decision, Mark and Dianne
dispute the nature of the funds that make up the judgment.
They characterize them as Patricia’s personal assets, not trust
assets, such that there could be no breach of the trust causing
a loss to the trust under the county court’s theory of liability.
As we will explain, Mark and Dianne give us no reason to
overturn the county court’s finding that the funds at issue
were trust assets.
(i) Background
By way of background, Barry testified about the nature
of the disputed assets at the initial hearing. Barry, a certi-
fied public accountant, recalled that when Charles died, all
of Patricia’s “liquid assets,” then held in an Edward Jones
account in Nebraska, went into the family trust. Barry later
learned that around 2015, Patricia’s Edward Jones account
was transferred from Nebraska to Illinois. Barry also testified
that he obtained information about Patricia’s financial situa-
tion from Chase Bank (Chase) in Illinois. Barry testified that
the funds at both Chase and Edward Jones were “administered

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
under the family trust” for Patricia’s benefit. According to
Barry, these were Patricia’s “only financial asset accounts that
she had.”
The county court’s initial judgment found that “all monetary
assets were put into the . . . Family Trust” and that “[t]hese
assets included bank accounts and an Edward Jones account.”
Consistent with Barry’s testimony and exhibits focusing on
funds from the Chase account, the county court further found
that beginning in 2015, Mark and Dianne exercised control
over the family trust accounts, and that a total of $1,276,858
was taken out of these accounts.
In the initial appeal, we rejected Mark and Dianne’s argu-
ment that “the county court’s judgment was not sustained by
the evidence because the evidence ‘concerned only Patricia’s
personal funds, not Trust funds.’” See In re Masek Family
Trust, 312 Neb. 94, 104, 977 N.W.2d 919, 926 (2022), citing
brief for appellants in case No. S-21-552.
Regarding whether the Chase account consisted of trust
assets or Patricia’s personal assets, Mark and Dianne presented
evidence on remand that after the initial hearing, Barry, as
“[p]lenary [g]uardian” of Patricia’s estate and person, filed a
pleading in Illinois to recover against Mark and Dianne on the-
ories of financial exploitation, conversion, breach of fiduciary
duty, civil conspiracy, and punitive damages. That pleading
identified expenditures from the Chase account upon which
the present judgment was based as “Patricia’s assets” and
sought to recover those assets. In his testimony on remand,
Barry admitted that he filed the pleading in an Illinois court
after the previous hearing. He also testified that the funds ref-
erenced in that pleading were the trust funds and that he did
not draft the pleading—his Illinois attorney did, and Barry was
not familiar with it.
Barry also acknowledged on remand that he was not very
familiar with the terms of the family trust, not having read
it for at least 10 years. And he testified that he did not know
whether the Chase account was owned by the family trust. But

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
when asked whether the funds in the Chase and Edward Jones
accounts were originally funds in the account for the trust,
Barry answered, over Mark and Dianne’s objection, “All I can
tell you is that they were [Patricia’s] accounts here in Beatrice,
Nebraska. And then they were—ended up at Chase . . . and
Edward Jones in Illinois.” Barry later recalled his testimony
before remand that he was able to trace the original trust
funds, and he agreed that there was “no doubt in [his] mind”
that the funds in the Chase and Edward Jones accounts were
trust funds.
The county court’s order on remand rejected Mark and
Dianne’s argument that the assets in the Chase account were
not trust assets. It explained that our initial opinion found this
contention lacked merit and that evidence at the hearing on
remand did not support a different conclusion.
(ii) Analysis
[13,14] In declining to treat the Chase account assets as
Patricia’s personal assets rather than trust assets, the county
court’s order on remand tacitly recognized the doctrine of
law of the case. Law of the case is a procedural doctrine that
bars reconsideration of the same or similar issues at succes-
sive stages of the same suit or prosecution. Tierney v. Tierney,
309 Neb. 310, 959 N.W.2d 556 (2021). The doctrine reflects
the principle that an issue litigated and terminally decided in
one stage of a case should not be resuscitated at a later stage.
See id. Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it for review become
the law of the case. Id. Thereafter, unless the facts presented
on remand are shown by the petitioner to be materially and
substantially different, the appellate court’s holdings conclu-
sively settle all matters ruled upon, either expressly or by
necessary implication. Id.
Mark and Dianne do not quarrel with the county court’s
observation that our initial opinion found no merit to their
argument that the disputed expenditures came from Patricia’s

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IN RE MASEK FAMILY TRUST
Cite as 318 Neb. 268
personal assets and not trust assets, and they do not challenge
the notion that our holding on the matter became law of the
case. But Mark and Dianne seem to suggest, as they did at trial,
that it did not remain so, because they presented materially and
substantially different facts on remand in the form of Barry’s
Illinois pleading seeking to recover the disputed funds as assets
of Patricia’s personal estate.
Even if the law-of-the-case exception was sufficiently raised
by Mark and Dianne on appeal, we need not decide whether
it applies such that the county court was permitted to reach
a different conclusion regarding the nature of the disputed
funds. This is because even if the exception applied, competent
evidence on remand supported the county court’s finding that
the funds in the Chase account were assets of the family trust:
Barry testified on remand that they were trust assets, and the
county court could, and apparently did, credit that testimony.
See In re Estate of Walker, 315 Neb. 510, 997 N.W.2d 595
(2023). Mark and Dianne cite other evidence to argue that the
funds in the Chase account were not trust funds, but in our
review for errors on the record, Barry’s testimony to the con-
trary is sufficient to support the county court’s ruling. See In
re Masek Family Trust, 312 Neb. 94, 977 N.W.2d 919 (2022).
See, also, In re Estate of Walker, supra (where competent evi-
dence supports different conclusions or inferences, it is exclu-
sive province of fact finder to determine weight of evidence
and judge credibility of witnesses).
More explicitly, Mark and Dianne submit on appeal that on
remand, the county court should not have considered Barry’s
testimony on the issue at all. As they did in the county court,
Mark and Dianne contend that the Illinois pleading barred
Barry from testifying on remand that trust assets were the
source of the funds for the disputed expenditures. They cite
authority that a party may neither “blow hot and cold” with
reference the same transaction,” see Ellis v. Omaha Cold
Storage Co., 122 Neb. 567, 575, 240 N.W. 760, 763 (1932)
(internal quotation marks omitted), nor “recite upon oath one

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statement of facts in one judicial proceeding and then, to meet
the exigencies of the occasion in the trial of a different suit,
recite under oath an entirely different story,” see Gohlinghorst
v. Ruess, 146 Neb. 470, 473, 20 N.W.2d 381, 383 (1945).
Although Mark and Dianne do not pinpoint a legal theory,
their argument is reminiscent of judicial estoppel.
Judicial estoppel is an equitable doctrine that a court invokes
at its discretion to protect the integrity of the judicial process
by preventing a party from taking a position inconsistent with
one successfully and unequivocally asserted by the same party
in a prior proceeding. See Becher v. Becher, 311 Neb. 1, 970
N.W.2d 472 (2022). An appellate court reviews a court’s appli-
cation of judicial estoppel to the facts of a case for abuse of
discretion. See id.
With this rubric in mind, we understand Mark and Dianne to
suggest that the county court abused its discretion when it did
not apply the doctrine of judicial estoppel to Barry’s testimony
on remand that the disputed expenditures were made up of trust
assets. We ascertain no abuse of discretion.
[15] For one thing, the doctrine of judicial estoppel pre-
vents a party from taking a position inconsistent with one it
successfully asserted in a prior proceeding, see id.; and our
record does not disclose whether Barry’s representations in
the Illinois court met with success. Moreover, judicial estop-
pel is to be applied with caution so as to avoid impinging on
the truth-seeking function of the court, because the doctrine
precludes a contradictory position without examining the truth
of either statement. Id. We have held that before a court may
apply the judicial estoppel doctrine, “bad faith or an actual
intent to mislead on the part of the party asserting inconsistent
positions must be demonstrated.” See Cleaver-Brooks, Inc.
v. Twin City Fire Ins. Co., 291 Neb. 278, 289, 865 N.W.2d
105, 114-15 (2015). Yet even when such a showing is made,
the trial court retains discretion to decide whether to apply
the doctrine. See id. Indeed, it is the trial court that is best
equipped to resolve “‘whether a litigant is playing fast and

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loose with the courts,’” because the trial court has “‘intimate
knowledge of the case at bar’” and “‘first-hand observations
of the lawyers and their litigation strategies.’” See Becher
v. Becher, 311 Neb. at 23, 970 N.W.2d at 490, quoting
Alternative System Concepts, Inc. v. Synopsys, 374 F.3d 23
(1st Cir. 2004).
There is no conclusive showing that on remand, Barry
acted in bad faith or had an actual intent to mislead the county
court. Although it is perhaps arguable that Barry took incon-
sistent positions regarding the nature of the funds in the Chase
account, we cannot conclude that the county court abused its
discretion in considering his testimony on remand that those
funds were trust assets.
(c) Scope of Mandate
As we work toward analyzing whether competent evidence
supports the theory of liability identified by the county court,
another preliminary issue is the scope of our mandate. Barry
proposes that our mandate allowed the county court to address
the legal basis for liability on remand but not the amounts sup-
porting the underlying judgment. He assigns on cross-appeal
that to the extent the county court considered on remand
whether there was evidence to support the judgment amount
in its initial order, it erred. We are unconvinced, and we con-
clude that on remand, the county court acted within our man-
date to the extent that it reassessed the amounts supporting
the judgment.
[16-18] The controlling principles are well established. In
appellate procedure, a “remand” is an appellate court’s order
returning a proceeding to the court from which the appeal
originated for further action in accordance with the remand-
ing order. Darling Ingredients v. City of Bellevue, 313 Neb.
853, 986 N.W.2d 757 (2023). When a lower court is given
specific instructions on remand, it must comply with the spe-
cific instructions and has no discretion to deviate from the
mandate. Id. When the judgment of a trial court is reversed on

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appeal and the cause remanded without specific instructions,
it is the duty of the trial court to exercise its discretion in the
further disposition of the case. Id.
We do not read our mandate to preclude reconsideration of
the judgment amount on remand. Our initial opinion reversed
the order denying new trial and remanded the cause for fur-
ther proceedings. We reasoned that because the county court
did not provide a legal basis for liability, we could not decide
whether the decision was sustained by sufficient evidence
such that a new trial would be warranted. As stated above,
we concluded:
[W]e reverse, and remand to the county court for further
proceedings consistent with this opinion, including, but
not limited to, conducting a hearing wherein the par-
ties would have the opportunity to present evidence or
arguments concerning [Mark and Dianne’s] liability to
the trust either as de facto trustees or by participating in
a breach of trust committed by Patricia, or by inducing
Patricia to commit breach while she was in their care
and control.
In re Masek Family Trust, 312 Neb. 94, 107, 977 N.W.2d 919,
928 (2022). Neither this language, nor our opinion as a whole,
conveyed that the county court should not reconsider the
amounts that made up the judgment. And it would be reason-
able for the county court to analyze individual expenditures
under a breach of trust theory of liability where the judgment
is based upon multiple expenditures, each one alleged to be
a breach of the trust. So, to the extent that the county court
entertained challenges to the judgment amount, it did not ven-
ture beyond the scope of our mandate.
(d) Timeframe
We next appraise the scope of evidence properly before
us. We do so because Mark and Dianne claim that the county
court erred by considering certain evidence. Specifically,
they contend that on remand, the county court erred (1) in

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receiving emails the siblings exchanged prior to a May 17,
2016, summary judgment entered by the county court in
earlier trust proceedings and (2) in considering “anything”
occurring on or prior to that summary judgment. Brief for
appellants at 27 (emphasis in original). In essence, Mark and
Dianne urge that evidence should have been limited to the
timeframe after the 2016 summary judgment. We disagree.
Mark and Dianne’s position centers on earlier county court
proceedings to remove Patricia as trustee, initiated by Colleen
in 2015. In those proceedings, Colleen cited the terms of the
trust pertaining to removal for disability and asserted that
Patricia was unable to administer the trust effectively. Colleen
also asked the county court to remove all successor cotrustees
and appoint a corporate fiduciary as successor trustee. Colleen
requested this and “[s]uch other and further relief as the Court
deems equitable and proper and necessary to protect The Trust
property and the interests of the beneficiaries.”
On May 17, 2016, the county court granted Patricia sum-
mary judgment in the trustee removal proceedings. It noted
that “there is no allegation or evidence that Patricia is unwill-
ing to serve or persistently failed to administrate the trust
effectively, only that she is ‘unfit’ because of mental defi-
ciency.” The county court determined that the terms of the
trust concerning removal for disability prevailed; that the
terms of the trust required a written certificate by a physi-
cian in Patricia’s state of residence to find Patricia “‘dis-
abled’”; and that those criteria were not met by Colleen’s
proffer of an examination of Patricia by a clinical psycholo-
gist who was neither a physician nor licensed to practice in
Illinois, Patricia’s state of residence. Consequently, Patricia
remained trustee.
On remand, the county court received the siblings’ emails
over Mark and Dianne’s relevancy objection. In their clos-
ing argument, Mark and Dianne also raised claim and issue
preclusion, submitting that the emails and testimony “concern-
ing pre-May 17, 2016, Patricia’s memory and general mental

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state” addressed the same “issue”—that “Patricia caused a loss
to the Trust due to mental incapacity or otherwise.” Their argu-
ment also stated that the disputed expenditures “did not start
until June 2016, and so whether Patricia had sufficient men-
tal capacity to administer the Trust in 2013 or 2014 or even
2015 has no bearing on whether she had sufficient capacity to
administer the Trust once the [disputed expenditures] began.”
(Emphasis omitted.)
The county court’s order on remand apparently rejected
these arguments. The county court explained that although
the emails could not have served as proof of disability under
the terms of the trust in its May 2016 summary judgment, the
county court was “not now so constrained.” It went on to find
that “as early as 2013 all of the parties were concerned about
Patricia’s ability to live and function independently” and that
“[a]s time progressed her capacity deteriorated.” The county
court then made factual findings that “[a]s Patricia’s mental
and physical health declined, Mark and Dianne’s dominion
and control over the trust increased to the point that Patricia
was merely a conduit for their actions” and that “[b]ecause
of Patricia’s diminished capacity the Court does not believe
that she knowingly committed a breach of the trust.” Now on
appeal, Mark and Dianne claim that the county court erred
in receiving the emails and in considering other evidence of
events that preceded the May 2016 summary judgment, but
their arguments are unavailing.
Mark and Dianne assert, without much explanation, that the
county court erred in receiving the emails over their objection,
because they were not relevant to whether Mark and Dianne
participated in any breach of trust by Patricia or induced her
to commit any breach by way of the disputed expenditures.
We find no merit to this contention. Evidence is relevant if
it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more prob-
able or less probable than it would be without the evidence.”

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Neb. Rev. Stat. § 27-401 (Reissue 2016). At issue on remand
was whether Mark and Dianne participated in a breach of
trust by Patricia. The emails illustrated the continuum of
Patricia’s cognitive state both before and after the summary
judgment and had a tendency to prove whether Patricia’s
actions involved Mark and Dianne, because the emails bore on
whether Patricia was capable of planning and carrying out the
disputed expenditures independently. This cleared the low bar
of evidentiary relevance. See In re Estate of Walker, 315 Neb.
510, 997 N.W.2d 595 (2023).
Mark and Dianne also contend that the emails were errone-
ously received because “anything” that occurred prior to the
summary judgment could not be relitigated due to “res judi-
cata.” Brief for appellants at 27 (emphasis omitted). We are
unpersuaded that res judicata, long called claim preclusion
by this court, barred consideration of the emails. See Hara v.
Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
Generally, claim preclusion bars the relitigation of a claim
that has been directly addressed or necessarily included in
a former adjudication. Boone River, LLC v. Miles, 314 Neb.
889, 994 N.W.2d 35 (2023), modified on denial of rehear-
ing 315 Neb. 413, 996 N.W.2d 629. For claim preclusion to
apply, our cases require the claim in the prior suit and the
claim in the present suit to be based on the same cause of
action. See id.
Again, the 2016 summary judgment addressed whether
Colleen had brought sufficient proof to show that Patricia
should be removed as trustee because she was “disabled” as
the trust defined it. The county court’s summary judgment
determined that Colleen had not produced the specific type
of proof that the terms of the trust required for removal of a
trustee due to disability. This finding did not limit the county
court on remand in the present matter, where the claim was
that Mark and Dianne participated in breaches of trust by
Patricia. As we have said, Patricia’s cognitive state is relevant
to that claim, and there is a difference between insufficient

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proof of disability under the terms of the trust and a finding
that Patricia breached the trust with participation by Mark and
Dianne. The summary judgment ruling was not a declaration
that Patricia was capable of being trustee; it was an explana-
tion of why Colleen had not legally proved otherwise.
(e) Participation in Breach of
Trust Resulting in Loss
Having settled the preliminary issues above, we move on to
examine Mark and Dianne’s actions. Mark and Dianne posit
that there was insufficient evidence underlying the county
court’s ruling on remand that they are “liable to the trust by
participating in a breach of trust committed by Patricia or,
more likely, by inducing Patricia to commit breach while
she was in their care and control.” The county court decided
that Mark and Dianne had participated in several breaches of
trust by Patricia based on the finding that they had “dominion
and control over the trust [that] increased to the point that
Patricia was merely a conduit for their actions.” The county
court awarded a total judgment consistent with the specific
expenditures alleged by Barry to be breaches of trust. Mark
and Dianne assert that the evidence was not sufficient to sup-
port the county court’s decision: They argue that there was
not evidence that they participated in the expenditures and
that even if there were evidence they participated, the expen-
ditures did not amount to breaches of the trust. Below, we
analyze whether Mark and Dianne had control over the trust
assets such that they could participate in breaches of trust as
contemplated in the Restatement (Third) of Trusts (2012) and
whether there were breaches of trust in the amounts found by
the county court. Upon our review for errors on the record,
we ultimately conclude that there was competent evidence
that Mark and Dianne did exercise control over the trust
assets and that the county court’s judgment was supported by
competent evidence for certain disputed expenditures, but not
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(i) Participation
We first focus on Mark and Dianne’s role in the disputed
expenditures that they claim were made by Patricia or at her
bidding. Mark and Dianne maintain that the county court
erred in deciding they participated in or induced Patricia to
commit any breach of trust under the Restatement’s theory of
beneficiary liability. See Restatement, supra, § 104. We reject
this argument, and we conclude that there was competent evi-
dence upon which to base a finding that Mark and Dianne had
control over the trust assets, such that they could participate
in a breach of the trust as contemplated in the Restatement.
See In re Masek Family Trust, 312 Neb. 94, 977 N.W.2d
919 (2022).
As we have said, in our initial opinion, “we [found] the
Restatement’s analytical framework instructive for purposes
of examining [Mark and Dianne’s] actions in terms of the pur-
ported breaches of trust.” In re Masek Family Trust, 312 Neb.
at 106, 977 N.W.2d at 927. Again, that analytical framework
states that a beneficiary is liable “to the extent . . . the trust
suffered a loss resulting from a breach of trust in which the
beneficiary participated.” See Restatement, supra, § 104 at 90.
Our initial opinion also recognized that the comments to the
Restatement explain:
Certainly, the beneficiary participates in a breach of
trust if the beneficiary performs, or joins in performing,
an act the beneficiary knows is a breach. . . . For example,
a beneficiary has participated in a breach of trust if the
beneficiary induced the misconduct knowing that it would
or might be a breach of trust. However, mere knowledge
of, or consent to, the breach, without more, is insufficient
to constitute participation . . . .
Id., comment f. at 91. It is these principles we consider in
evaluating the following facts.
Barry testified that in 2011 or 2012, Patricia “mentally
wasn’t as sharp as she used to be.” From 2013 to 2015, Barry,
Mark, Dianne, and Colleen exchanged emails describing their

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impressions of Patricia’s situation and cognitive state. Over
the course of a year or two, Barry, Mark, Dianne, and Colleen
discussed that at some point, Patricia would not be able to
take care of herself and of Richard, who, Barry said, could
“never live on his own.”
In email messages exchanged among the siblings from July
to August 2013, Mark and Dianne relayed their observations
of Patricia’s cognitive state. They provided multiple examples
of Patrcia’s forgetting something that she or someone else had
just said or done. Dianne recounted an instance when Patricia
“pressed on the doorknob because she didn’t know what the
doorbell was,” even though Dianne had rung the doorbell
moments before. Dianne’s email also recalled a situation when
Patricia “couldn’t remember her address and made one up.”
Dianne reported that when Patricia paid a retailer with a check,
she could not remember the date or where she was, so she left
those two lines blank and gave the check to the cashier. During
the same visit, Patricia could not find or recognize personal
items that she used daily and could not remember how to
lock her front door with her house key. Dianne further stated,
“[Patricia] does not know how to add a tip to a credit card
receipt as she . . . cannot do simple math.”
Barry testified that after about 2 years of the siblings’ dis-
cussing Patricia’s situation, “[t]he decision was made” that
Patricia and Richard should live in Downers Grove, Illinois,
where Dianne lived with her family. According to Barry,
Patricia and Richard were upset by the discussions about mov-
ing. Colleen did not agree with the decision to move Patricia
and Richard to Illinois and wanted them to reside with her in
Omaha, Nebraska. Barry recalled that as a result of this dis-
agreement, “when they were moved to [Illinois] they stopped
all communication with Colleen and her family.”
Patricia moved to Illinois in February 2014. Barry recalled
that Mark and Dianne picked up Patricia and Richard in
Nebraska on the pretense of going out to lunch for Patricia’s
birthday and took them to Illinois, without allowing them to

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say goodbye to anyone. Barry testified that although he had
agreed that Patricia and Richard should live with Dianne, nei-
ther he nor Colleen was informed when the move occurred.
Documents from around the time of the move showed that
Dianne was appointed to act under durable power of attorney
for Patricia, replacing Colleen. Barry testified that he was not
informed of this change. Barry described Patricia’s mental
capacity at the time of the move as “impaired”; he testified,
“[S]he was forgetting things and repeating things.”
In early June 2014, Mark said in an email that a friend of
Patricia’s in Nebraska expressed that she and other members
of Patricia’s “‘card club’” had been concerned about Patricia
because they “‘saw that she was forgetting.’” Mark described
another occasion when Patricia forgot something she had just
said. He continued:
I think that [Patricia] as I knew her is gone. For me, a
different person is here. I agree with the doctors. In order
to protect her mental stability, [Patricia] needs to stay
away from her past living area. Confusion and disori-
entation are probable. And for her constant orientation,
I want Dianne to accompany her at all times. She is in
moderate to severe Alzheimer’s. I hope that my prayers
can slow it as she continues to vanish; I wish that it were
different.
Also in early June 2014, Dianne stated in an email to Barry,
Mark, and Colleen that “[a]ccording to a doctor’s evaluation,
[Patricia] is in the moderate to later stages of Alzheimer’s. She
has severe short term memory loss.” Dianne wrote in the email,
“Conversations with the staff at Edward Jones in Beatrice
stated that they were happy that [Patricia] was living with me
as they were noticing that she was slipping and that we did
the right thing to move her.” Dianne’s email also relayed that
Patricia had forgotten how to set the table and how to execute
basic aspects of hygiene. According to Dianne’s email, staying
with her provided Patricia “stability and emotional continuity
as she continues to decline with her disease.”

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Dianne also testified that after a few months in Illinois,
Patricia had acclimated, her medication dose was changed, and
her mental condition improved.
Dianne testified that after Patricia moved to Illinois in 2014,
Dianne prepared meals for her; did her laundry; observed her
hygiene, such as bathing and brushing her teeth; shopped for
her food and clothing; helped with “memory workbooks”; and
took her to appointments and to church. Dianne also testified
that she “slept in the same room with her at night so that she
was safe going to the bathroom in the middle of the night.”
This was a “safety precaution to ensure she didn’t fall.”
Dianne testified that she helped Patricia in this way daily until
early 2018.
Mark testified that Patricia wished to compensate Dianne
and her husband for the in-home care. To facilitate this com-
pensation, Mark, to whom Patricia had conveyed power of
attorney for her property in 2016, created a reimbursement
and compensation agreement to reflect Patricia’s wishes and
the rate of payment, which was based on rates charged by
third-party caregivers. According to Mark, Patricia selected
this rate from a range of daily rates he presented to her and
it was 10 percent lower than the lowest rate. Mark created
monthly invoices for Patricia to sign. The signed invoices were
then sent back to Mark. Checks in evidence for the invoiced
amounts appear to be signed by Patricia. Mark testified that he
was involved in this process “for monitoring and oversight.”
Meanwhile, Barry, who also lived in Illinois, frequently saw
Patricia and Richard for a time after they moved there. Barry
recalled that from 2013 to 2015, Patricia’s “dementia continued
to get worse.” He described that although Patricia recognized
and enjoyed her family, she was “not remembering things.”
She could not order at a restaurant because she could not read
the menu or pay for things. He testified, “[D]ay-to-day func-
tions in that regard were becoming . . . very difficult.”
In 2015, Barry invited Colleen and her family to his house
for the July 4 holiday, so that they could see Patricia and

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Richard there without Dianne’s knowledge. Barry anticipated
that if Dianne found out, they would “not . . . see [Patricia]
and [Richard] for a while.” According to Barry, they had a
nice weekend together overall. During the gathering, however,
Patricia and Richard said that they did not like living with
Dianne and were “very upset, unhappy,” but they would not
explain in detail. Barry recalled that Patricia said, “‘Do not let
[Richard] go back to [Downers] Grove. I’m older. I can stay
there, but do not let [Richard] go back.’” A couple of weeks
later, Barry and Colleen received letters from Patricia and
Richard. The letters stated that Barry and Colleen had done
“bad things” and that Patricia and Richard no longer wanted to
see them. Barry testified that he attempted to contact Patricia
and Richard multiple times, without success, and that Richard
uncharacteristically turned him away when Barry attempted to
visit Richard at work.
Barry testified that after July 2015, “we . . . filed many
wellness visits to Downers Grove” and “a missing persons
report” out of concern for Patricia and Richard. In 2017 and
2018, Colleen initiated proceedings in Illinois, alleging that
Dianne was confining Patricia and abusing her health care
power of attorney. Colleen also petitioned for guardianship
of Patricia. Barry testified that Dianne appeared at related
hearings, but that Patricia did not. He testified that Dianne
provided reasons why Patricia was absent, such as illness.
Barry recounted that after about 6 to 9 months of Patricia’s
being absent from court proceedings, Dianne explained that
Patricia had moved to Las Vegas, Nevada, because Illinois
was too cold. Some of the proceedings were ultimately dis-
missed. Barry opined that at this time, Patricia and Richard
were not capable of living on their own or of handling their
own finances.
The county court heard other testimony that after mov-
ing to Illinois to live with Dianne in 2014, Patricia and
Richard moved to other locations. According to Dianne, it was

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Patricia’s decision to move and she and Richard were capable
of living on their own, with Patricia requiring some assistance.
In early 2018, Patricia moved from Illinois to Nevada, where
she resided with Dianne’s mother-in-law, and Richard soon
joined her. Dianne testified that because “sheriffs or other peo-
ple” were coming into that residence, Patricia “wasn’t really
having very much peace” and felt “uncomfortable that she was
caus[ing] a scene [in another woman’s] home.” Due to these
concerns, Dianne said, Patricia and Richard started to consider
moving out of the country. Dianne testified that at some point
in the summer of 2018, Patricia moved again, this time to an
apartment in Wisconsin.
Also in the summer of 2018, Patricia signed documents in
Nevada to give Mark durable power of attorney for financial
matters. Mark explained that the purpose of the power of
attorney was to enable him to write checks to pay Patricia’s
taxes. Mark testified that a third-party company prepared
Patricia’s tax return and that he wrote the check for her tax
liability because he wanted “to make sure that there were, like,
her social security number was on there” and “[i]t was just
easier for [him] to do it than to tell her to do five things that
she wouldn’t do until a-whole-nother year away.”
Dianne testified that upon Patricia’s request, Dianne accom-
panied Patricia to look at properties in Costa Rica and Panama
in 2018. Patricia ultimately purchased a property in Panama,
with the intention of living there seasonally. Dianne testified
that Patricia had purchased the property without any instruc-
tions, advice, or participation by Dianne and that she did not
have concerns about Patricia’s ability to make financial deci-
sions. Dianne testified that she visited Patricia in Panama six
times in 2018 and 2019. While in Panama, Dianne helped
Patricia by driving her around, caring for her, and getting
groceries. Barry testified that he later learned that title to the
property was held by an entity of which Mark and Dianne’s
husband were directors.

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In November 2019, Patricia moved to an “Airbnb” in Illinois;
Dianne testified that she provided the groceries and prepared
meals for Patricia and Richard there.
Barry testified that during Patricia’s moves, he hired a pri-
vate investigator to locate Patricia in Illinois or Las Vegas,
but that the private investigator could not find her. Despite
an Illinois court order demanding that Patricia be produced,
Patricia was not produced, and the court issued a warrant or
“body writ” to locate her.
Barry did not know Patricia’s whereabouts for 2½ years.
Then in March 2020, Richard died suddenly and Patricia was
taken into custody in Illinois pursuant to the body writ.
Dianne testified that when Patricia appeared in the Illinois
court in March 2020, she “looked great,” but was not feeling
well. Barry testified that when he was reunited with Patricia
in 2020, her condition had changed dramatically from when
he last saw her in 2015. According to Barry, in 2020 Patricia
did not know any of her children. Barry testified that she was
not in a condition to live by herself. She had no knowledge
of where she was or why she had gotten there. She had no
knowledge of any of her assets. On March 6, 2020, an Illinois
circuit court issued an order in which it found an emer-
gency basis existed to appoint Barry as the temporary guard-
ian of Patricia’s estate and person. Weeks later, the Illinois
court appointed Barry perpetual guardian and conservator
for Patricia.
Barry ultimately placed Patricia in a memory care unit at
an assisted living facility. Barry testified that as of September
21, 2020, Patricia did not know any of her children. She could
feed herself if food was placed in front of her; she still needed
help getting in and out of the bathroom and in and out of bed.
Patricia died in February 2021.
Barry admitted that he did not personally observe Mark or
Dianne participate in any of the disputed expenditures.
Based on this evidence, the county court made specific fac-
tual findings, including that “[a]s Patricia’s mental and physi-
cal health declined, Mark and Dianne’s dominion and control

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over the trust increased to the point that Patricia was merely a
conduit for their actions.” It determined that Mark and Dianne
had “participat[ed] in a breach of trust committed by Patricia
or, more likely, . . . induc[ed] Patricia to commit breach while
she was in their care and control.”
Now on appeal, Mark and Dianne assert that there is “no
evidence” that they participated in any breach of trust by
Patricia. Brief for appellants at 30. Although it is undisputed
that Barry did not personally witness Mark and Dianne’s par-
ticipation in any of the disputed expenditures, we cannot accept
Mark and Dianne’s position that there was no evidence to sup-
port an inference that they did.
We perceive in the facts above competent evidence that
after Patricia’s move from Nebraska to Illinois, at a time
when Patricia’s cognitive condition would not allow her to
make financial decisions, Mark and Dianne exercised control
over the trust assets. This supports the inference that, under
the framework above, Mark and Dianne participated in any
breaches of trust that occurred during that period: Taken
together, the facts above include competent evidence to sup-
port the inference that Mark and Dianne “perform[ed] or
join[ed] in performing,” any acts that constituted a breach of
trust after Patricia moved to Illinois, “knowing that it would or
might be a breach of trust.” See Restatement (Third) of Trusts
§ 104, comment f. at 91 (2012). Certainly, Mark and Dianne
presented a different picture of Patricia’s decisions in her final
years. But Barry supported his burden of proof with compe-
tent evidence, and it was the province of the county court to
choose to credit Barry’s version. See In re Estate of Walker,
315 Neb. 510, 997 N.W.2d 595 (2023). We find no error in
the county court’s determination that under the Restatement,
Mark and Dianne participated in the breaches of trust identi-
fied below.
(ii) Breaches of Trust Resulting in Loss
Having determined that competent evidence supported the
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over the trust assets after Patricia moved from Nebraska
to Illinois, we turn our attention to the individual disputed
expenditures to examine whether there was competent evi-
dence that they were breaches of the trust resulting in loss to
the trust. The parties agree that the judgment was based upon
the following disputed expenditures from Patricia’s Chase
account, summarized by Barry in an exhibit, reproduced in
part as follows:
Payments Made For Benefit of Dianne Yahiro and Mark
Masek from the Charles and Patricia Masek Family Trust:
$350K - Greg and Dianne Yahiro monthly checks
(appx. $6,600-$7,000 per month).
$30K - Villanova (presumably for one of the Yahiro
kid’s school).
$14K - Michael Yahiro [Dianne’s son].
$60K - Richard Masek.
$545K - Wire transfers to Panama.
$135,858 - Payment For Taxes.
$142K - Ending balance in Chase late 2018 - debited
out of account. Possibly went towards paying off $100K+
tax bill for liquidating annuity/retirement.
Above total is $1,276,858.
Mark and Dianne’s arguments take issue with each of these
amounts. Barry, for his part, generally asserts that because the
trust funds were eventually depleted while Patricia was under
the care and control of Mark and Dianne, breaches of trust in
the amounts above necessarily occurred. We reject this notion.
We cannot simply assume that anything that occurred on Mark
and Dianne’s watch satisfied the elements of the Restatement.
Our analysis requires us to isolate and examine each individual
expenditure above to determine whether each was a breach of
trust resulting in loss to the trust.
Before 	deciding 	whether 	the 	expenditures 	above 	were
breaches of trust, we pause to review the pertinent terms of
the trust. During all relevant times, Patricia was sole surviv-
ing settlor and trustee of an irrevocable family trust. Although

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the trust provided that a trustee could be disqualified due to
disability, as defined under the specific terms of the trust,
Patricia was never determined to be disabled under such
terms. The trust consisted of a marital share and a family
share. For the marital share, the trust allowed the “Trustee
. . . from time to time [to] distribute to the surviving [settlor]
or apply for his or her benefit such portions of the principal
[of the marital share] as Trustee deems advisable to provide
liberally for his or her care, maintenance, comfort, and enjoy-
ment.” The trust also provided that “[t]he surviving [settlor]
may withdraw all or any portion of [the marital share of] the
Trust Estate at any time by written request filed with [the]
Trustee,” though there is no evidence that this term was
invoked relative to the disputed expenditures. As to the fam-
ily share, the trust required that the “Trustee shall distribute to
[the] surviving [settlor] such portions of the principal [of the
family share] as may be necessary for the medical expense,
support and maintenance of said surviving spouse.”
In light of the trust terms, we ultimately conclude that there
was competent evidence that several of the disputed expendi-
tures were breaches of trust that caused losses to the trust, but
not all of them.
a. $350,000 for In-Home Care
Among the disputed expenditures that made up the judg-
ment were monthly payments to Dianne and her husband of
approximately $6,000 or $7,000 each, totaling $350,000. There
was evidence that the payments were intended to compensate
Dianne and her husband for caring for Patricia.
The county court heard evidence that while Patricia lived in
Dianne’s home, Dianne prepared her meals, did her laundry,
observed her hygiene, provided companionship, took Patricia
to social and cultural activities, exercised with Patricia, and
slept in the same room as Patricia “so that she was safe going
to the bathroom in the middle of the night.”
Mark and Dianne testified that the monthly payments began
after Patricia expressed a wish to compensate Dianne for the

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in-home care. Mark and Dianne recalled that the payments of
approximately $7,000 per month were based on quotes from
third-party care providers for “non-specialized” care and set
at 10 percent less than the lowest daily rate. Mark and Dianne
testified that the payments began in 2016, with some of them
retroactive for past services.
Barry testified that when Patricia moved to Downers Grove,
he suggested that Dianne receive payment for expenses such
as food, clothing, and transportation, but Dianne refused. He
denied being consulted about the subsequent monthly pay-
ments. Barry opined that Patricia did not require extraordinary
care to justify payment of approximately $7,000 per month,
adding that he saw Patricia for only 2 or 2½ years after her
move to Downers Grove before contact ceased. Barry testi-
fied that in his view, it was not reasonable for Patricia to pay
$7,000 per month to Dianne for in-home care. He believed
Patricia’s monthly income from her teacher’s pension and
Social Security, totaling about $1,500, should have been suf-
ficient for her living expenses. He acknowledged that after
he was appointed Patricia’s guardian in 2020, he personally
paid approximately $7,000 per month for her to live in the
memory unit of an assisted living facility.
The county court ultimately found that “[p]ayment of trust
assets to Dianne as authorized by Mark were excessive and
constituted a breach of the trust.” The parties agree that based
on this finding, the judgment included $350,000.
On appeal, Mark and Dianne assert that even if the $350,000
for in-home care consisted of trust funds, there was no evi-
dence that those funds were not expended for Patricia’s care,
maintenance, and enjoyment, in compliance with the terms of
the trust. They also contend that there could be no breach of
trust because Patricia agreed to make the payments and that
they were reasonable.
We conclude that the county court erred in treating these
expenditures as breaches of trust. Mark and Dianne presented
evidence that Dianne provided services to Patricia in the areas

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of hygiene, exercise, entertainment, meals, and getting to the
bathroom at night. The payments for this in-home care fall
into a permissible category of expense under the trust lan-
guage allowing trust assets to be spent “as may be necessary”
for Patricia’s “medical expense, support and maintenance.”
Moreover, testimony by Mark and Dianne suggested that the
payments for in-home care were reasonable because they were
comparable to the cost of nonspecialized third-party care.
Barry, on the other hand, did not produce evidence that the in-
home care Dianne provided was unnecessary; nor did he coun-
ter Mark and Dianne’s evidence that the monthly payments
were reasonable compared to the cost of third-party caregiv-
ers. In fact, Barry took the position at trial that while Patricia
was under Dianne’s care, her cognitive ability was substan-
tially compromised, and he testified that he paid $7,000 per
month for Patricia’s care in a memory unit after they were
reunited. Consequently, we find the record lacks competent
evidence that the expenditures for in-home care were breaches
of trust, and the county court erred in including those amounts
in the judgment. We therefore modify the judgment by reduc-
ing it $350,000.
b. $30,000 to Villanova University
There is no dispute that the judgment compensated for a
$30,000 check that Patricia wrote to “Villanova University.”
Dianne testified that this check was for a tuition bill for
Dianne’s daughter. According to Dianne, she and her husband
had forgotten the bill was due and did not have time to liqui-
date assets to pay it. She testified that she and her husband paid
Patricia back, and the county court received copies of checks
from Dianne to Patricia, totaling $30,000. Dianne testified that
these checks were written to reimburse Patricia for the pay-
ments to Villanova. One of the checks bore the note “[l]oan
[r]epayment.” Bank statements in evidence from Chase reflect
that amounts corresponding with these checks were deposited
in Patricia’s account within days of the dates on the checks.

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Mark and Dianne suggest, among other things, that the
tuition payment did not constitute a loss to the trust, because
it was a loan that Dianne repaid. Upon our review of the bank
statements, we agree, and we conclude that competent evidence
did not support the county court’s finding that the Villanova
University payment occasioned a loss to the trust, such that
Mark and Dianne could be liable under the relevant theory
of liability. We therefore modify the judgment by reducing
it $30,000.
c. $14,000 to Dianne’s Son
The parties do not dispute that the judgment encompassed
a check Patricia wrote to Dianne’s son for $14,000. Dianne
characterized it as a gift. When asked what the payment was
for, Dianne testified that Patricia was very grateful to him for
spending time with her and helping her by driving her around,
making her meals, and playing cards with her.
We view the above as competent evidence that the payment
to Dianne’s son constituted a breach of trust, causing a loss to
the trust. Mark and Dianne’s brief emphasizes evidence that
the payment was a gift, suggesting that the payment was for
Patricia’s “‘enjoyment,’” consistent with the terms of the trust.
Brief for appellants at 24. But given the competent evidence of
Patricia’s cognitive state, summarized above, when this expen-
diture was made, Patricia was not in a condition to “deem[]” it
“advisable” as required by the terms of the trust.
d. $60,000 to Richard
A portion of the judgment corresponded with a $60,000
payment from Patricia’s Chase account to Richard. Dianne
testified that Richard had a full-time job with benefits and that
she did not know whether Patricia assisted him financially.
This was competent evidence to support the county court’s
decision that the payment to Richard was a breach of trust,
causing a loss to the trust. Mark and Dianne again submit
that the payment was for Patricia’s “‘enjoyment.’” Id. We

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reiterate, however, that Patricia’s cognition did not allow her
to “deem[]” the payment “advisable.”
e. $545,000 Wired to Panama
In support of the judgment, the order on remand referred to
the purchase of a “$500,000 condo in Columbia.” It is clear
that the county court mistakenly stated “Columbia” rather than
“Panama.” And the parties agree that the judgment consisted
of compensation for the $545,000 wire transfer to purchase a
condominium in Panama.
As with other expenditures, Mark and Dianne argue that
the county court erred in concluding that the purchase of the
Panama property was a breach of trust because it did not go
against the terms of the trust. Again, they point to trust terms
allowing Patricia to spend trust assets for her “care, mainte-
nance, comfort, and enjoyment” as she “deems advisable” or
to spend trust assets “as may be necessary” for her “medical
expense, support and maintenance.” Like we have reasoned
regarding other expenditures, Patricia was not cognitively able
to “deem[]” expenditures “advisable,” particularly not one as
peculiar and significant as the purchase of the Panama prop-
erty. And it cannot be said that the purchase of a property in
a foreign country was “necessary” for her “medical expense,
support and maintenance.”
Mark and Dianne also contend that there could be no loss to
the trust due to the purchase because if the Panama property
was purchased with trust funds, the trust owned the property.
Barry testified, however, that he had been unable to locate
the property purchased in Panama, but he had discovered it
was held by an entity that named Mark and Dianne’s husband
as directors. Given competent evidence that the property was
held and controlled by an entity listing Mark and Dianne’s
husband as directors, we see no merit to Mark and Dianne’s
argument that the purchase resulted in no loss to the trust. We
conclude there was competent evidence that the purchase of
the property in Panama using trust assets breached the trust.

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f. $135,858 and $142,000
The 	parties 	concur 	that 	the 	county 	court’s 	judgment
accounted for outlays of trust assets that Barry alleged, in the
amounts of $135,858 and $142,000.
Barry testified that a $135,858 tax payment was made from
trust assets and that the taxes were owed because Patricia had
liquidated a “Roth IRA account.” Barry also stated that in
October or November 2018, Mark, Dianne, and her husband
wired $142,000 from the trust assets “out somewhere,” leaving
the Chase account balance at zero.
Mark agreed that he made the $135,858 tax payment for
Patricia. Dianne elaborated that Mark wrote the check to the
Internal Revenue Service while the Chase account was frozen
due to the Panama transaction. Thus, Dianne said, the check
was never cashed and was returned. Bank records in evi-
dence confirm that $135,858 was not deducted from the Chase
account at the relevant time.
Dianne testified that afterward, the Chase account was
closed and Patricia was issued a cashier’s check for around
$142,000. Bank statements confirm that $142,843.61 was deb-
ited from the account in December 2018, leaving the account
with a balance of zero. Dianne opined that that two entries
on Barry’s exhibit—“‘[$]135,858 payment for taxes,’ and . . .
‘[$]142k ending balance in [C]hase late 2018 debited out of
account, possibly went toward paying off [$]100k+ tax bill
for 	liquidating 	annuity 	retirement”—represented 	the 	same
tax payment.
Regarding the check for $135,858, Mark and Dianne point
to the evidence that it did not clear, indicating that there was no
loss to trust assets. We agree. We cannot conclude that compe-
tent evidence supported a judgment in this amount when bank
statements show that it was never deducted from trust assets.
As for the $142,000, Barry’s testimony that the money was
wired “out somewhere” is not competent evidence of a breach
of trust. On the other hand, Dianne opined, and Barry agreed
that it was a possibility, that the $142,000 was used to pay

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taxes. We view the payment of taxes to be “necessary” for
Patricia’s “maintenance” and therefore in compliance with the
terms of the trust.
Consequently, we modify the judgment so as not to include
sums of $135,858 and $142,000.
(f) Evidentiary Rulings
In addition to their contention that the judgment against
them was not supported by competent evidence, Mark and
Dianne argue that the district court made several erroneous
evidentiary rulings. As we will explain, we find no revers-
ible error.
First, Mark and Dianne assert that the county court errone-
ously received documentation produced by Patricia’s attorney,
over their objections. This documentation was received along
with a foundational affidavit by Barry’s attorney stating that
it was the file of Patricia’s attorney that was obtained via
discovery. Barry’s counsel argued that the file was offered to
show Patricia had not had any contact with her attorney and
that it was Mark who communicated with Patricia’s attorney.
As they did before the county court, Mark and Dianne assert
that the exhibit was inadmissible because it was not relevant
and because Patricia’s attorney was not available to authen-
ticate its contents. We need not resolve these issues. Even if
these objections had merit, admission of the exhibit—to show
that Patricia was not in charge of her own circumstances—
would not be reversible error, given all the other competent
evidence received on the topic, which we have discussed at
length above. See In re Hessler Living Trust, 316 Neb. 600,
5 N.W.3d 723 (2024) (in civil case, admission or exclusion of
evidence is not reversible error unless it unfairly prejudiced
substantial right of complaining party).
Second, Mark and Dianne offered affidavits from two phy-
sicians stating that Patricia could manage her person and
estate in 2018; Mark testified that he relied on the affidavits
in his dealings with Patricia and with third parties on her

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behalf. The county court sustained Barry’s hearsay and foun-
dation objections to the exhibits. On appeal, Mark and Dianne
argue that they were admissible, not for the truth of the mat-
ter asserted, but to show their effect on Mark’s state of mind,
because intent is an element of “inducement.” Brief for appel-
lants at 44. Mark and Dianne also submit that the affidavits
were self-authenticating under Neb. Rev. Stat. § 27-902(8)
(Reissue 2016).
We need not resolve these arguments because the exclusion
of the affidavits cannot rise to the level of reversible error, as
it did not unfairly prejudice a substantial right of Mark and
Dianne. See In re Hessler Living Trust, supra. On this point,
we must bear in mind that the affidavits were not admis-
sible for the truth of the matter asserted—that Patricia was
capable of managing her person and estate in 2018. At most,
the emails would have been admissible to show that Mark
believed Patricia was capable of managing her person and
estate in 2018. But given the county court’s findings regard-
ing Patricia’s lack of capacity at that time, we see no realistic
possibility the county court, even if it had considered the
physician affidavits, would have concluded that Mark had no
knowledge of Patricia’s lack of capacity.
Third, Mark and Dianne assert that the county court erred
in declining to receive a letter allegedly authored by Patricia.
Their sole argument in this regard is that Barry did not object
to its admission. We disagree. We have reviewed the record,
and it is clear to us that Barry objected to the exhibit and that
the county court sustained that objection.
3. Judgment “in Favor of Barry”
Having established Mark and Dianne’s liability, we turn to
their claim that on remand, the county court erred in entering
judgment “‘in favor of Barry . . . as executor of the Estate
of Patricia Masek, trustee and beneficiary of the Charles and
Patricia Masek Family Trust.’” They argue that any judgment
for damages should be paid directly to the family trust, of

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which Barry, Mark, Dianne, and Colleen remained cotrustees.
Barry counters that we found this argument to be without merit
in our initial opinion.
We begin with Barry’s suggestion that this issue is barred by
law of the case, and we conclude that the issue is not barred.
Recall that law of the case is a procedural doctrine that bars
reconsideration of the same or similar issues at successive
stages of the same suit or prosecution. Tierney v. Tierney, 309
Neb. 310, 959 N.W.2d 556 (2021). The county court’s initial
order entered judgment against Mark and Dianne “in favor
of Barry . . . as Guardian and Conservator for Patricia . . . ,
Trustee and Beneficiary of the Charles and Patricia Masek
Family Trust.” The county court later revived the judgment
“in [Barry’s] name as Administrator and Representative for
the Estate of Patricia . . . , deceased.” Apparently overlooking
the revivor, Mark and Dianne assigned in their initial appeal
that the county court erred in entering judgment in favor of
“Barry . . . as Guardian and Conservator for Patricia . . . ,
Trustee and Beneficiary of the Charles and Patricia Masek
Family Trust.” We expressly rejected this position. See In re
Masek Family Trust, 312 Neb. 94, 977 N.W.2d 919 (2022).
On remand, the county court entered judgment in favor of
Barry, “as executor of the Estate of Patricia Masek, trustee
and beneficiary of the Charles and Patricia Masek Family
Trust.” It is this judgment that Mark and Dianne now chal-
lenge. Because it is a judgment for Barry in a different repre-
sentative capacity from that in the judgment we addressed in
the initial appeal, there is no bar to addressing it here.
That said, to the extent Mark and Dianne argue that the
county court erred by not entering judgment in favor of the
trust itself, we disagree. We agree with Mark and Dianne that
the amount of the judgment should be restored to the trust.
The Restatement (Third) of Trusts § 104(2) at 90 (2012)
provides that “[i]f a beneficiary is personally liable to the
trust, the trust is entitled to a charge against the beneficiary’s
interest in the trust to secure the payment of the liability.”

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As we observed in our initial opinion, the commentary to
the Restatement elaborates: “If a beneficiary participates in a
breach of trust, causing a loss to the trust . . . , the beneficiary
is personally liable to the trust for all or part of the loss, as
appropriate.” Id., comment f. at 91. But the county court did
not have to enter judgment in favor of the trust to ensure that
judgment funds would be restored to the trust. We perceive
the county court’s order on remand to recognize that Barry
should not have the freedom to dispose of the judgment funds
however he wishes and that he is required by law to act in
accordance with the duties and powers of his representative
capacity in relation to the judgment. See Neb. Rev. Stat.
§§ 30-3866 to 30-3882 (Reissue 2016 & Cum. Supp. 2024)
(duties and powers trustees). Yet, the judgment in favor of
Barry “as executor of the Estate of Patricia . . . , trustee and
beneficiary of the Charles and Patricia Masek Family Trust”
is not completely clear to us. It could be read as a judgment
properly entered in favor of Barry as cotrustee of the family
trust, but it could also be susceptible to other readings. To dis-
pel any confusion, we modify the judgment to be in favor of
Barry in his capacity as cotrustee of the Charles and Patricia
Masek Family Trust.
4. Additional Attorney Fees
Mark and Dianne argue that the county court erred in order-
ing them to pay additional attorney fees that Barry claimed to
have incurred on remand. We are unpersuaded.
Mark and Dianne first assert that the award of additional
attorney fees exceeded the scope of our mandate and was
therefore void. Mark and Dianne do not explain how such
an award exceeded the scope of our mandate, and we do not
read our mandate so narrowly. Our initial opinion reversed
the order denying new trial and remanded the cause “for
further proceedings consistent with this opinion, including,
but not limited to, conducting a hearing wherein the parties
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concerning [Mark and Dianne’s] liability to the trust.” In re
Masek Family Trust, 312 Neb. 94, 107, 977 N.W.2d 919, 928
(2022). This language did not preclude an award of attorney
fees associated with proceedings on remand. To the contrary,
such an award was part and parcel with the further proceedings
contemplated in our mandate. See Neb. Rev. Stat. § 30-3893
(Reissue 2016) (providing for award of attorney fees “[i]n a
judicial proceeding involving the administration of a trust”).
Mark and Dianne also contend that even if the award of
additional attorney fees was not void, it was in error because
it encompassed attorney services rendered before the order
on remand that decided the merits of the case and that also
awarded attorney fees. According to Mark and Dianne, this
“defies reason.” Brief for appellants at 41. We cannot agree.
As we have explained, the county court’s order of judgment
on remand reiterated the same amount for attorney fees that
the county court awarded in the initial order; Mark and Dianne
do not contest this award of fees in the present appeal. After
entering the judgment on remand, the county court received
evidence at a hearing on Barry’s request for attorney fees
incurred on remand, and it awarded additional fees for that
period. Section 30-3893, referenced above, authorizes an award
of attorney fees “[i]n a judicial proceeding involving the
administration of a trust.” The proceedings on remand in this
case involved the administration of a trust. Thus, the additional
attorney fees were authorized by statute, and we see no error in
the sequence of events that led up to that award.
Finally, Mark and Dianne assert that even if the award
of attorney fees was not void, it was error because it was
unreasonable. At the hearing on additional attorney fees, the
county court received an affidavit by Barry’s attorney affirm-
ing the total fees incurred from the date of our mandate in the
initial appeal, as shown by the invoices attached to the affi-
davit. The billing entries in those invoices were for services
rendered after we remanded the matter. The county court
awarded additional attorney fees consistent with the affidavit

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and attached invoices. On appeal, Mark and Dianne dispute
certain billing entries in the invoices and claim the fees did
not stem from proceedings specific to this court’s mandate
on remand. Barry, for his part, offers plausible reasons why
the disputed entries are related to this case on remand, noting
the interplay of this matter involving the family trust, another
matter involving a “Masek Children’s Trust,” and proceedings
in Illinois. Having reviewed the disputed entries, we conclude
that Mark and Dianne have not identified any abuse of dis-
cretion in the amount of additional attorney fees. See BCL
Properties v. Boyle, 314 Neb. 607, 992 N.W.2d 440 (2023).
V. CONCLUSION
As we have explained, the county court’s judgment included
certain amounts that were not supported by competent evi-
dence, and we conclude that the language awarding the judg-
ment in favor of Barry requires clarification. Otherwise, we
find no merit to the errors assigned and argued by the par-
ties. Accordingly, we affirm but modify the judgment from
$1,276,858 to $619,000, in favor of Barry in his capacity as
cotrustee of the Charles and Patricia Masek Family Trust.
Affirmed as modified.
Heavican, C.J., not participating in the decision.