Jenny Lou Johnson v. Michael Mewis

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 20, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP640 Cir. Ct. No. 2023PR29

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE SCOTT F. MINDHAM REVOCABLE TRUST
DATED JUNE 3, 2009:

JENNY LOU JOHNSON AND TERRY MINDHAM,

BENEFICIARIES-APPELLANTS,

V.

MICHAEL MEWIS,

TRUSTEE-RESPONDENT.

APPEAL from an order of the circuit court for Iowa County:
MATTHEW C. ALLEN, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Taylor, JJ.

¶1 BLANCHARD, J. Jenny Lou Johnson and Terry Mindham (the
beneficiaries) appeal a circuit court order denying their petition challenging
activities of Michael Mewis when he acted as the trustee for a trust (the Trust)
No. 2024AP640

created by their deceased brother. The beneficiaries filed a petition for an order
denying or reducing the fee and the expenses claimed by Mewis as trustee, on the
grounds that he failed to: (1) distribute Trust assets within a deadline set by the
parties in an agreement reached after the death of settlor Scott; and (2) keep
records and disclose to the beneficiaries information about Mewis’s work for the
Trust. The circuit court denied the petition. We conclude that the beneficiaries
fail to show that Mewis breached the terms of the Trust or other legal
requirements. The beneficiaries also argue that the court erred in awarding the
expenses claimed by Mewis, which consisted of a portion of the fees charged by
an attorney retained by Mewis to assist him in Mewis’s administration of the
Trust. We reject this argument as unsupported in multiple respects. Accordingly,
we affirm the circuit court’s order.

BACKGROUND

¶2 The Trust, which named Mewis as the trustee, was created by Scott
Mindham as settlor in 2009. It was amended in 2017. References to “the Trust”
in this opinion are to the trust instrument as amended. Jenny and Terry, Scott’s
siblings, are named as remainder beneficiaries in the Trust.1 As remainder
beneficiaries, they are designated in the Trust to receive the Trust assets that
remained following Scott’s death after accounting for bequests specified in the
Trust. Mewis is also named as a beneficiary of the Trust; it designates that he
should receive real estate after Scott’s death.

1
Because the settlor, Scott, and the beneficiary, Terry, share the same surname, we use
the beneficiaries’ first names when referring to them individually.

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No. 2024AP640

¶3 Scott died in May 2022. The following fall, after Mewis took some
steps to administer the Trust, Mewis and the beneficiaries entered into an
“Agreement and Compromise” (the Agreement). The Agreement resolved
scrivener’s errors in the Trust and clarified how Trust assets were to be distributed.
It also identified the particular parcel of real estate that Mewis would receive from
the Trust, which resolved an ambiguity in the Trust. The Agreement also
addressed the distribution of those assets that had not yet been distributed as of the
date of the Agreement. Specifically, the Agreement stated that it was “the intent”
of Mewis and the beneficiaries that this distribution “shall be” accomplished
“within a reasonable period of time not to exceed 30 days” from the date of the
Agreement. There is no dispute that Mewis did not distribute all pertinent assets
within the 30-day deadline.

¶4 In May 2023, Mewis shared with the beneficiaries a draft tax return
for the Trust that reflected a proposed payment of $55,000 to Mewis from Trust
assets for his fee in administering the Trust. The draft return also proposed that
$24,513 be paid out of the Trust to Attorney Robert Jackson, who Mewis retained
to assist in the administration of the Trust, to compensate Jackson for his work on
behalf of the Trust. Later that month, the beneficiaries notified Mewis and
Jackson that the beneficiaries objected to these proposed payments. As part of this
objection, the beneficiaries requested that Mewis provide them with “itemized
accounting[s]” of the “time and service” that Mewis and Jackson each spent on
work related to the Trust. The beneficiaries renewed their request for these
accountings in June.

¶5 Jackson directly responded to the beneficiaries in an email, to which
Jackson attached “individual billing statements” by his firm to the Trust. These

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No. 2024AP640

records reflected what Jackson represented were his work “hours allocated to each
entry.”

¶6 In this email, Jackson also responded to the beneficiaries’ request for
similar records from Mewis for the work that Mewis performed for the Trust.
Jackson took the position that Mewis’s work “parallel[s]” the entries reflected in
Jackson’s billing statements. Therefore, Jackson told the beneficiaries, the billing
statements of the law firm constituted “sufficient disclosure” to support the
proposed fees for both Jackson and Mewis. For this reason, Jackson indicated, the
beneficiaries would not be receiving an “itemized accounting” of Mewis’s “time
and service.” Further, Jackson defended Mewis’s proposed fee. Jackson stated
that this represented two percent of the Trust’s total value, which Jackson asserted
was a rate consistent with local customs regarding trustee compensation. Jackson
also stated that, if the beneficiaries continued to object to Mewis’s proposed fee
after seeing Jackson’s explanation, the beneficiaries should petition the circuit
court to reduce it.

¶7 The beneficiaries initiated this lawsuit in August 2023. They
petitioned the circuit court to deny or reduce the fee and expenses claimed by
Mewis, including Jackson’s attorney fees, although the petition did not explicitly
refer to Jackson’s fees. Two evidentiary hearings were held at which the
witnesses included the beneficiaries, Mewis, and Jackson. At the hearings, the
beneficiaries clarified that they challenged payment of only the attorney fees that
Jackson generated following their objection and not the fees that he generated
before the objection.

¶8 The circuit court issued a written decision denying the beneficiaries’
petition. The court ordered that Mewis’ fee of $55,000 be paid from Trust assets.

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No. 2024AP640

Although the court did not explicitly address Jackson’s proposed attorney fees for
work covering any pertinent time period, the court ordered that “the necessary
expenses and disbursements … incurred by” Mewis “in defending this [lawsuit]
also shall be paid from the [t]rust balance.” This was an obvious reference to
attorney fees, including those claimed by Jackson. The beneficiaries appeal.

DISCUSSION

¶9 On appeal, the beneficiaries allege that Mewis’s fee and expenses
should be denied or reduced because Mewis acted in “breach of trust” under WIS.
STAT. § 701.1001(1) (2023-24) in three ways: (1) by failing to distribute all Trust
assets by the 30-day deadline contained in the Agreement; (2) by failing to keep
“adequate” records of Mewis’s administration of the Trust, as required by WIS.
STAT. § 701.0810(1); and (3) by failing, contrary to WIS. STAT. § 701.0813, to
promptly respond to their requests for information in order to keep them
reasonably informed about the administration of the Trust.2 See § 701.1001(1)
(“A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of
trust.”).

¶10 In addition, the beneficiaries contend that the circuit court erred in
awarding the expenses claimed by Mewis concerning some of Jackson’s attorney
fees. We reject each of the beneficiaries’ arguments.

2
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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No. 2024AP640

I. STANDARDS OF REVIEW

¶11 The determination as to whether a historical event occurred presents
an issue of fact to be resolved by the circuit court. Hatleberg v. Norwest Bank
Wis., 2005 WI 109, ¶¶1, 15, 283 Wis. 2d 234, 700 N.W.2d 15 (addressing a
breach of fiduciary duty claim brought against a trustee). “‘Findings of fact shall
not be set aside [on appeal] unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses.’” Id.,
¶15 (quoting WIS. STAT. § 805.17(2)). Whether the facts found by the circuit
court show that the respondent violated a particular duty presents an issue of law
that we review de novo. Id.; Zastrow v. Journal Commc’ns, Inc., 2006 WI 72,
¶12, 291 Wis. 2d 426, 718 N.W.2d 51. Similarly, we use a de novo standard to
interpret statutes. See Tammy W.-G. v. Jacob T., 2011 WI 30, ¶16, 333 Wis. 2d
273, 797 N.W.2d 854; see also Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69,
¶23 n.12, 291 Wis. 2d 283, 717 N.W.2d 17 (existence and scope of a duty are
issues of law).

¶12 We address below the specific standards of review that are
applicable to the deadline-provision issue.

II. BREACHES OF TRUST

¶13 To clarify, Mewis does not argue that, assuming the beneficiaries
proved that Mewis breached the Agreement or failed to comply with a statutory
duty, it would not constitute a breach of trust. With that understanding, we
conclude that the beneficiaries fail to establish that Mewis breached the Trust in
any way that is alleged by the beneficiaries.

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No. 2024AP640

A. Deadline to Distribute Trust Assets

¶14 The beneficiaries argue that Mewis breached the Trust by failing to
comply with the deadline provision in the Agreement. To repeat, the deadline
provision stated that it was the parties’ intent that the distribution of assets that
remained in the Trust as of the time of the Agreement would occur “within a
reasonable period of time not to exceed 30 days” after the effective date of the
agreement. We first explain why we conclude that the beneficiaries fail to show
that Mewis breached the Trust based on the deadline provision, and then we
explain why we conclude that they fail to show that the circuit court improperly
exercised its discretion in determining that Mewis did not unreasonably delay in
distributing Trust assets, regardless of the deadline provision.

The Deadline Provision

¶15 Because the record reflects that Mewis and the beneficiaries entered
into the Agreement before the beneficiaries sought circuit court intervention, the
Agreement appears to have been a “nonjudicial settlement agreement” under
Wisconsin statutes governing trusts. See WIS. STAT. § 701.0111(1), (3)-(4) (an
“interested person may enter into a binding nonjudicial settlement agreement with
respect to any matter involving a trust” provided the agreement “could be properly
approved” or ordered by a court under “applicable law”).3 This has potential

3
“Interested person” is defined as “a person whose consent would be required in order to
achieve a binding settlement were the settlement to be approved by the court.” WIS. STAT.
§ 701.0111(1). There is no dispute here that Mewis and the beneficiaries are interested persons in
this context. Further, agreements of this kind may address topics that include, as pertinent here,
the “interpretation or construction of the terms of the trust”; “[d]irection to a trustee to perform …
a particular act”; or the “resolution of disputes arising out of the administration or distribution of
the trust.” See § 701.0111(5)(a), (c), (i). The parties do not contest the Agreement’s validity, and
following the parties, we treat the Agreement as valid and generally binding.

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No. 2024AP640

significance because, under § 701.0111(3), “[a] binding nonjudicial settlement
agreement is considered part of the trust instrument.” In other words, by operation
of statute, such a settlement agreement is to be interpreted as being part and parcel
of the corresponding trust, and not as a standalone contract. One result would be
that such an agreement must be construed through the lens of a settlor’s intentions
in creating the trust. See Hamilton v. Forster, 57 Wis. 2d 134, 138, 203 N.W.2d
711 (1973) (courts interpret trust documents through the settlor’s “‘use of the
words in relation to the surrounding circumstances’” of the formation of the trust
(quoted source omitted)).

¶16 But here, nothing would be gained by attempting to interpret the
Agreement (including its deadline provision) as if it were incorporated into the
Trust and viewed through the lens of Scott’s intentions. This is true for two
reasons. First, Scott had died by the time Mewis and the beneficiaries entered into
the Agreement. Second, neither side argues that the Agreement—or at least the
specific deadline provision at issue here—was intended to memorialize an intent
that Scott expressed while alive. See McGuire v. McGuire, 2003 WI App 44, ¶10,
260 Wis. 2d 815, 660 N.W.2d 308 (“[w]e determine the [settlor’s] intent from the
language of the document itself, considered in light of the circumstances
surrounding the settlor at the time the document was executed”). As a result, it is
not possible to determine Scott’s subjective intentions to assist in the interpretation
of the deadline provision.

¶17 Further, neither Mewis nor the beneficiaries identify a provision of
the Trust that bears on the interpretation of the deadline provision. This leaves the
terms of the Agreement itself as the only evidence of the mutual intent of Mewis
and the beneficiaries regarding the deadline provision. The parties do not identify
another provision of the Agreement that aids the interpretation of the deadline

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No. 2024AP640

provision. See Pheasant W., LLC v. University of Wis. Med. Found., Inc., 2023
WI App 55, ¶27, 409 Wis. 2d 539, 998 N.W.2d 600 (contract interpretation calls
for interpreting a contract not based on isolated terms but as a whole). Thus, we
are left to interpret the deadline provision, on its face, without interpretative clues
provided elsewhere in the Agreement or provided in the Trust. Our review of the
deadline provision is de novo. See Tufail v. Midwest Hosp., LLC, 2013 WI 62,
¶22, 348 Wis. 2d 631, 833 N.W.2d 586 (interpretation of contracts presents issues
of law); McGuire, 260 Wis. 2d 815, ¶10 (interpretation of testamentary
documents, including testamentary trusts, present issues of law).

¶18 With these points in mind, we conclude that the deadline provision
of the Agreement is ambiguous on the topic of whether Mewis was strictly
required to comply with the 30-day distribution deadline. Put differently, we
conclude that he did not necessarily violate the Agreement simply because all
remaining assets were not distributed within 30 days. We now address the basis
for our conclusion that the provision is ambiguous.

¶19 On one hand, the deadline provision states that Mewis “shall”
distribute remaining Trust assets before the deadline. In itself, this could support
the beneficiaries’ position to the extent that “shall” can sometimes signal the
concept of a mandatory duty for which there must be consequences if it is not met.
Further, the provision could be construed as defining as reasonable all
distributions that occurred before the deadline and defining as not reasonable all
distributions after the deadline. This suggests an intent to specify what counts as a
“reasonable time to distribute” Trust assets once an event occurs that requires
Trust termination, which indisputably occurred here with the death of settlor Scott.
See WIS. STAT. § 701.0817(2); see also WIS. STAT. § 701.0105 (terms of a trust
govern over contrary provisions of the trust code, subject to exceptions not

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No. 2024AP640

relevant here).4 Trustee conduct that is expressly defined to be unreasonable
might raise the prospect of negative consequences for the trustee by violating the
statutory duty contained in § 701.0817(2) or, more generally, the duty to
administer the Trust in the beneficiaries’ best interests under WIS. STAT.
§ 701.0801.

¶20 On the other hand, the deadline provision states that it is “the intent
of” the Agreement that all distributions of Trust assets be accomplished within 30
days, which could be reasonably interpreted as the parties merely expressing an
intended goal—an outcome hoped for, but not guaranteed. Further, the
beneficiaries do not identify an aspect of the deadline provision or other terms in
the Agreement that specify, or even suggest, what a consequence would be for
Mewis’s failure to meet the deadline. For example, it would have been simple to
include in the Agreement a reduction in compensation if distribution was delayed
in general or by designated periods, but nothing like this was stated.

¶21 Given these competing reasonable interpretations, the Agreement is
ambiguous on this topic of whether the deadline provision established a mandatory
or aspirational term of the Agreement. This raises the issue of whether the
deadline provision was mandatory, that is, did the parties intend time to be “of the
essence” for the deadline provision? See Employers Ins. of Wausau v. Jackson,
190 Wis. 2d 597, 616-17, 527 N.W.2d 681 (1995); see also Droppers v. Hand,

4
There is no dispute here that Scott’s death was an event that triggered the winding
down of the Trust, per WIS. STAT. § 701.0817(2), given the terms of the Trust. The Trust
explicitly directed Mewis to distribute identified Trust property to specified recipients, and then
to distribute the entirety of remainder to the remainder beneficiaries, leaving no assets in the
Trust. Thus, even ignoring the deadline provision in the Agreement, Scott’s death imposed a duty
on Mewis to “accomplish[]” required distributions “as soon as it [was] reasonably possible to
do.” See Sensenbrenner v. Sensenbrenner, 76 Wis. 2d 625, 634, 252 N.W.2d 47 (1977).

10
No. 2024AP640

208 Wis. 681, 242 N.W. 483 (1932) (when time is not “of the essence” in a
contract provision, failure of a party to meet a deadline to perform does not give
other party remedies such as rescission). As we now describe, the circuit court
appropriately addressed this question consistent with pertinent case law regarding
whether “time is of the essence.”

¶22 In its written decision, the circuit court provided the following
summaries of testimony by the parties regarding what they intended to accomplish
by including the deadline provision in the Agreement, and neither side now
questions the court’s summaries. Jenny testified that she “wanted to resolve the
Trust issues quickly.” To that end, Jenny entered into the Agreement in order to
obtain a “strict 30-day timeframe for asset distribution” and, in exchange, she gave
up her right to object to aspects of the real estate distribution. 5 In contrast, Mewis
testified that he understood that the deadline was merely “a goal, subject to
circumstances that could prevent distribution within that timeframe.”

¶23 Evoking legal principles regarding whether time is of the essence,
the circuit court drew a distinction between what the court called “a mandate,”
which required enforcement, and an “intention,” which merely stated a goal. The
court decided that the deadline provision of the Agreement was not a mandate, but
instead a “stated goal,” a “non-binding statement of the parties’ intent.” The court
rested this decision in part on the fact that the Agreement did not specify any form
of penalty for Mewis in the event that he failed to complete the distributions
within the 30 days. More generally, the court determined that, considering the

5
Terry’s testimony added little. He testified that he had no memory of the Agreement
and more generally no memory that Mewis was trustee of the Trust.

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No. 2024AP640

scope and complexity of the Trust as well as the progress that Mewis still needed
to make as of the time the Agreement was struck, it would have been
“unreasonable” for the parties to expect that Mewis would be able “to completely
wind down a nearly $3 million dollar estate within” the 30 days.

¶24 We conclude that it was appropriate for the circuit court here to
apply case law regarding whether time was of the essence regarding the deadline
provision. Although the time-is-of-the-essence rule is found in contract case law
specifically, the beneficiaries are presumed under both contract law and trust law
to have been aware of the time-is-of-the-essence rule in entering into the
Agreement. See Hamilton, 57 Wis. 2d at 139 (case and statutes in effect at trust’s
creation may be consulted as an “‘extrinsic aid’” in interpreting ambiguous trust
terms, because the settlor is presumed to know the law when creating trust (quoted
source omitted)); Krause v. Massachusetts Bay Ins. Co., 161 Wis. 2d 711, 718,
468 N.W.2d 755 (Ct. App. 1991) (contract parties presumed to know law in effect
at contract’s formation); Brenner v. Amerisure Mut. Ins. Co., 2017 WI 38, ¶39,
374 Wis. 2d 578, 893 N.W.2d 193 (“Contracts … incorporate the law extant at the
time of execution.”). Further, whether time was made of the essence in the
deadline provision is precisely the ambiguity that needs resolving here. Beyond
that, neither party argues that it was error for the circuit court to interpret the
deadline provision to be consistent with the time-is-of-the-essence rule.

¶25 Moreover, the circuit court’s application of the time-is-of-the
essence rule was sound under pertinent case law. “Time is not of the essence of a
contract unless it is clear that the parties intended to make it so.” Appleton State
Bank v. Lee, 33 Wis. 2d 690, 693, 148 N.W.2d 1 (1967). The parties can make
time of the essence through the express terms of the contract or, in the absence of
such terms, through their conduct. Rottman v. Endejan, 6 Wis. 2d 221, 225-26,

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No. 2024AP640

94 N.W.2d 596 (1959); Employers Ins., 190 Wis. 2d at 617. When there is no
clear expression and the parties dispute whether time was made of the essence
through conduct, the circuit court treats the issue as one of fact, taking into
account “‘the surrounding facts and circumstances, the situation of the parties, and
the acts of the parties with respect to the subject matter.’” Employers Ins., 190
Wis. 2d at 616-17.

¶26 Applying these standards here, beginning with the terms of the
Agreement, the time provision does not expressly establish that time is of the
essence for the reasons noted above: the deadline provision does not expressly
state a consequence for failure to meet the 30-day deadline, and the provision is
framed in terms of mere intent.

¶27 Turning to the parties’ conduct with respect to the deadline
provision, the circuit court implicitly gave more weight to Mewis’s testimony
regarding his understanding of what the provision meant than to the testimony of
one of the beneficiaries. In support of this implied finding, the court specifically
found that Mewis not only substantially complied with the deadline provision, he
acted reasonably in the time he took to distribute Trust assets beyond the deadline.
The beneficiaries do not satisfy the burden of establishing that some part of the
court’s analysis involved clear error. Id. at 616.

¶28 The beneficiaries may also mean to suggest the following argument
about their purported intentions in entering into the Agreement. They contend that
they effectively gave up a potentially valuable position that they could have taken
regarding the land bequest to Mewis in the Trust. The idea would be that, without
the Agreement, this bequest was disputable because pages of the Trust were
missing. The beneficiaries argue that they gave up challenging the unspecified

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No. 2024AP640

bequest to Mewis as too indefinite. If intended, this argument fails for a number
of reasons, including that the beneficiaries do not offer a legally supported
argument explaining how the alleged personal benefit that Mewis gained through
the Agreement should affect a proper interpretation of the deadline provision.6 At
most, the beneficiaries identify evidence of the parties’ conduct and surrounding
circumstances that the circuit court could consider in determining whether the
deadline provision was made of the essence in the Agreement, despite the lack of
express terms. And, as noted, the court did consider Jenny’s testimony regarding
her subjective motivations for entering the Agreement.

¶29 In sum on this topic, we agree with the circuit court that the deadline
provision is not mandatory. We discern nothing in the Agreement, and the
beneficiaries do not call our attention to anything in the record, that required the
court to find that time was of the essence for the deadline provision and that it was
therefore a mandatory deadline. Further, the beneficiaries implicitly concede the
point by failing in their reply brief on appeal to respond to Mewis’s arguments,
which are consistent with the case law addressing whether time is of the essence.
See United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d
750, 738 N.W.2d 578.

Alleged Unreasonable Delay in Distributing Trust Assets

¶30 Having concluded that the deadline provision in the Agreement is
not mandatory, we turn to the beneficiaries’ argument that Mewis unreasonably

6
The beneficiaries also briefly assert that Mewis breached his duty of loyalty to the
beneficiaries by retaining real property distributed to him under the Trust, as clarified by the
Agreement. This assertion is not developed as part of a legal argument and we reject it on that
ground.

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No. 2024AP640

delayed in distributing Trust assets, putting the Agreement terms to the side. In
general, trustees owe a duty to manage a trust with “due care and diligence,”
which “includes the requirement that the trustee perform his [or her] designated
duties within a reasonable time after they arise.” See Sensenbrenner v.
Sensenbrenner, 76 Wis. 2d 625, 635-36, 252 N.W.2d 47 (1977); see also WIS.
STAT. § 701.0804 (“A trustee shall administer the trust as a prudent person would”
and “shall exercise reasonable care, skill, and caution.”). Not surprisingly, given
the nature of trusts, this duty extends to “the management of the trust estate,”
defined to include “the distribution of the trust assets.” See Sensenbrenner, 76
Wis. 2d at 635-36; § 701.0804 (trustee shall “consider[] the … distributional
requirements … of the trust”). Specifically, “‘[w]hen the time for the termination
of the trust has arrived it is the duty of the trustee to proceed with expedition to
wind up the trust and distribute the estate.’” See Sensenbrenner, 76 Wis. 2d at
634 (quoting RESTATEMENT (2ND) OF TRUSTS § 345 (AM. L. INST. 1959)). Stated
in statutory terms:

Upon the occurrence of an event terminating or
partially terminating a trust, the trustee shall proceed within
a reasonable time to distribute the trust property to the
persons entitled to it, subject to the right of the trustee to
retain a reasonable reserve for the payment of debts,
expenses, and taxes.

WIS. STAT. § 701.0817(2); see also WIS. STAT. § 701.0816(26) (trustee has power
to, “[o]n termination of the trust, exercise the powers appropriate to wind up the
administration of the trust and distribute the trust property to the persons entitled
to it”).

¶31 When an unreasonable-delay challenge is raised, the circuit court
determines “‘[w]hether the trustee has been guilty of an improper delay in winding
up the trust’” based “‘upon all the circumstances.’” See Sensenbrenner, 76

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No. 2024AP640

Wis. 2d at 637 (quoted source omitted). Naturally, the larger and more complex
the trust, the longer it will tend to take a trustee to reasonably wind up the process.
See id. This court will not disturb a circuit court’s finding that a trustee did not
unreasonably delay in distributing trust assets unless the finding is “contrary to the
great weight and clear preponderance of the evidence or unless based upon an
error of law.” See id. at 633-34.

¶32 Here, the circuit court implicitly addressed the issue of whether
Mewis was reasonably prompt in winding up asset distribution, putting to the side
the deadline provision. The court found that Mewis “was able to distribute
approximately 84% of this sizeable estate” before the 30-day deadline. Regarding
the distributions that occurred after the 30-day deadline, the court found that the
facts and circumstances both explain and reasonably justify the delay. The court
credited as reasonable Mewis’s testimony explaining that it took eight months to
fully wind down the Trust because the assets distributed after the deadline
involved complications of various kinds. This included some Trust revenue
derived from the rental of a solar farm, from IRA funds, and from two pieces of
Arkansas real estate.7

¶33 We conclude that the beneficiaries do not establish that the circuit
court’s determination that Mewis did not unreasonably delay distribution of assets

7
One possible loose end was resolved by the circuit court. The court found that Mewis
failed to offer an explanation or excuse regarding the time it took for him to distribute one
particular asset—the assignment of the leases of the solar farm to two beneficiaries not a party to
this appeal. (The solar farm itself was distributed within the 30-day deadline.) But the court
determined that this delay was not unreasonable. The court noted that the transfer of the solar
farm leases “occurred within months of the execution of the Agreement” and made a
determination that “there is no indication” “that the delay was willful or in bad faith or that it
resulted in damages to the Trust ….”

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No. 2024AP640

was against the great weight and clear preponderance of the evidence. See id. at
634. As reflected in the background section above, the court explicitly considered
the overall circumstances of the Trust and the particular assets that Mewis
distributed over time.

¶34 For the first time in their reply brief on appeal, the beneficiaries cite
limited evidence that they assert establishes that it should not have been difficult
for Mewis to more quickly distribute the remaining assets. The beneficiaries’
tardy and selective use of the record is unavailing. They entirely fail to account
for the circuit court’s reasoning regarding the delayed distribution of assets.
Further, the beneficiaries do not offer a developed argument challenging these
findings.

¶35 The beneficiaries also assert in their reply brief on appeal that the
circuit court erred in taking into account what the court deemed to be an absence
of proof that the beneficiaries suffered damage. The beneficiaries contend that
they were not required to prove that they or the Trust were damaged in order to
sustain their deadline-provision claim. As support for this position, they refer to
the fact that their breach of trust claims are statutory, rooted in WIS. STAT. ch. 701.
We reject this argument on the ground that the beneficiaries fail to support this
argument with legal authority. Notably, the beneficiaries fail to account for the
fact that the trust code explicitly directs that the common law of trusts
supplements the statutes. See WIS. STAT. § 701.0106. This is a significant
omission for at least the reason that case law states that “the sanction” for a trustee
“not performing” a required duty “within a reasonable amount of time” is that the
trustee must pay “a surcharge for any loss thereby caused to the trust assets.” See
Sensenbrenner, 76 Wis. 2d at 636. To prevail on this point, the beneficiaries
would at a minimum need to direct us to authority for the proposition that it was

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No. 2024AP640

improper for the circuit court to rely in part on the absence of evidence that delays
by Mewis caused identifiable harms to the Trust.

B. Alleged Breach of Duties to Keep Records and Inform
Beneficiaries

¶36 The beneficiaries allege that Mewis violated his duties to maintain
adequate records regarding administration of the Trust as required under WIS.
STAT. § 701.0810(1) (“A trustee shall keep adequate records of the administration
of the trust.”) and to keep the beneficiaries reasonably informed under WIS. STAT.
§ 701.0813(1). As to both duties, the beneficiaries specifically contend that
Mewis was required to keep and disclose an “itemized accounting” of his “time
and service” working on trust-related matters. We will refer to what the
beneficiaries requested as “hourly billing records” of Mewis’s work. The
beneficiaries contend that all trustees must maintain hourly billing records because
that is, in their words, “essential in trust administration to determine or to justify
trustee compensation and expense reimbursement.”8

Duty to Keep Records

¶37 We begin with the interpretation and application of a trustee’s
recordkeeping duties under WIS. STAT. § 701.0810(1), which to repeat, states that
a “trustee shall keep adequate records of the administration of the trust.” The trust

8
The beneficiaries may mean to suggest that Mewis’s proposed fee was not reasonable
in light of the amount of work that Mewis actually performed—or, more precisely, in light of the
amount of work which Mewis was able to prove that he had performed through reference to
Attorney Jackson’s hourly billing records and Mewis’s factual claims about his work. But we
reject any such argument based on a lack of development. As we explain in the text, the
beneficiaries’ arguments about hourly billing records are framed entirely in terms of WIS. STAT.
§ 701.0810(1) and WIS. STAT. § 701.0813(1), and we do not understand the beneficiaries to
directly challenge the circuit court’s ruling that Mewis’s proposed two-percent fee was
reasonable.

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No. 2024AP640

code does not define the “administration” of a trust, which might otherwise assist
us in interpreting the scope of a trustee’s duty to keep “adequate records of the
administration of the trust” under § 701.0810(1). See WIS. STAT. § 701.0103
(Definitions); see also State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“Statutory language is given its
common, ordinary, and accepted meaning, except that technical or specially-
defined words or phrases are given their technical or special definitional
meaning.” (quoted source omitted)).

¶38 Although WIS. STAT. § 701.0810(1) does not define what constitutes
keeping adequate records of the administration of a trust, the trust code does
contain numerous references to trust administration that, as closely related statutes,
provide insight into the meaning of § 701.0810(1). See State v. Reyes Fuerte,
2017 WI 104, ¶¶26-27, 378 Wis. 2d 504, 904 N.W.2d 773 (closely related statutes
are part of the context of statutory text informing its plain meaning; “[s]tatutes are
closely related when they are in the same chapter, reference one another, or use
similar terms”). Most significantly, under WIS. STAT. § 701.0801 (“duty to
administer trust”), a trustee “shall administer the trust … in accordance with [the
trust’s] terms and purposes[,] the interests of the beneficiaries, and in accordance
with this chapter.” See also Zastrow, 291 Wis. 2d 426, ¶¶33-34 (duties of trustee
include obligation to comply with terms of the trust and duty of loyalty to trust
beneficiaries). Thus, while the nature of specific tasks involved in trust
administration may vary considerably from trust to trust, § 701.0801 establishes
that all trustees must administer trusts in a manner consistent with these three
requirements.

¶39 Interpreting the duty to keep records under WIS. STAT.
§ 701.0810(1) in this light, we conclude that “administration of the trust” as used

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No. 2024AP640

in the recordkeeping statute must be construed in a way that takes into account the
duties established in WIS. STAT. § 701.0801 about what proper trust administration
entails. Thus, § 701.0810(1) includes requiring the trustee to keep records that are
“adequate” to the requirements that the trustee (1) comply with the terms and
purposes of the trust, (2) protect the interests of the beneficiaries, and (3) comply
with the requirements of the trust code.9

¶40 Based on this general understanding of WIS. STAT. § 701.0810(1),
we conclude that Mewis did not violate a duty to keep records about the
administration of the Trust. Given the relevant text in the Trust and the relevant
facts found by the circuit court, Mewis’s duty to maintain adequate records did not
include compiling and retaining hourly billing records of his own work before or
after the demand by the beneficiaries.

¶41 Beginning with the terms of the Trust, “[t]he trustee shall be entitled
to such reasonable compensation as from time to time may be agreed upon in

9
We note that our interpretation of the trustee recordkeeping duty in WIS. STAT.
§ 701.0810(1) does not follow the narrower approach that Mewis advocates. Mewis emphasizes
case law that addresses one type of record that trustees must keep—namely, “‘clear, distinct, and
accurate records of all the transactions of a trustee’” in order to make “an accurate accounting”—
and he suggests that this requires a trustee to keep records only of trust finances. See Hallin v.
Hallin, 228 Wis. 2d 250, 256, 596 N.W.2d 818 (Ct. App. 1999) (quoting Barry v. Richards I, 21
Wis. 2d 334, 341-42, 124 N.W.2d 297 (1963)). Under this case law, the trustee must keep
sufficient records to render a “final account” that “‘show[s] in detail the items expended and
show when, to whom, and for what purposes the payments were made so the beneficiaries can
make a reasonable test of the accuracy of the accounts.’” Id. (quoting Barry I, 21 Wis. 2d at 341-
42); see also WIS. STAT. § 701.0813(3)(a) (requiring trustee to report certain information on trust
liabilities and assets, and to list trust property). If this were the test, then Mewis would prevail
here easily because the beneficiaries do not challenge the accuracy, or the level of detail, of
Mewis’s accounting of the Trust’s finances. However, in addition to the reasons we explain in
the text for our interpretation of § 701.0810(1), we do not think that case law such as Hallin,
which involves a trustee’s duty to make an accurate accounting, purports to address the complete
scope of a trustee’s potential recordkeeping duties.

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No. 2024AP640

advance and in writing … [by] the majority of the then living adult beneficiaries”
of the Trust. However, neither party presented evidence that there is such an
agreement here. This means, according to the terms of the Trust, that Mewis was
to be paid “reasonable compensation” in “accordance with reasonable and
customary fees.” Neither party argues that any other Trust provision informs the
scope of Mewis’s duty to maintain records or to report to the beneficiaries in a
way that varies from the statutory defaults established by the trust code. See WIS.
STAT. § 701.0105(2).

¶42 Pertinent to the Trust’s terms regarding trustee compensation, the
circuit court made the following findings, which credited testimony by Mewis and
Jackson. It was not Mewis’s practice as a trustee to record his work time “on an
hourly basis.” Instead, Mewis “customarily billed for his services at 2% of the
value of the estate.” The court noted that the Wisconsin statutes do not establish a
rate for compensating trustees. The court observed that Mewis’s proposed fee was
“in line with the 2% statutory fee for personal representatives” who administer
probate estates under WIS. STAT. § 857.05(2). This was significant to the court
because the court credited testimony by Jackson that “the duties of a personal
representative are nearly identical to those of a trustee.” “Attorney Jackson further
testified based on his rather extensive experience that a 2% fee is the usual and
customary charge for trustee services in this locale.” The court found that there
was no testimony at trial rebutting Jackson on the point that a two-percent fee is
the customary compensation for trustees in or around Iowa County.

¶43 Given the circuit court’s findings, Mewis’s method of calculating his
fee was consistent with the terms of the Trust. Obviously, the simple calculation
of two percent of the value of the Trust did not in itself require an itemized
accounting of Mewis’s time—there is no dispute about the value of the Trust. Cf.

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No. 2024AP640

Davis v. Smith, 49 Wis. 2d 237, 241-46, 181 N.W.2d 413 (1970) (failure to keep
records of per diem charges, despite trust’s direction that the trustee be paid on per
diem basis, required remand to circuit court for trustee to justify compensation on
per diem basis as a remedy for a breach of trust for failure to follow trust).

¶44 Turning to statutory duties, the beneficiaries also fail to identify a
statute that required Mewis as trustee to maintain hourly billing records. The only
other statutory duties to which the beneficiaries direct us are the duties to disclose
information to beneficiaries under WIS. STAT. § 701.0813. Again, however, given
the two-percent-fee methodology that Mewis relied on to propose a single fee as
compensation, the beneficiaries do not explain how failing to keep hourly billing
records was inadequate to comply with a § 701.0813 requirement. Under
§ 701.0813(2)(d), Mewis was required to notify the beneficiaries of any change in
the method of calculating his compensation. However, there was no evidence of
such a change; the only compensation he ever claimed was the single fee of
$55,000. Under § 701.0813(3)(a)1., Mewis was required to report on the Trust’s
“property, liabilities, receipts, and disbursements, including the source and amount
of the trustee’s compensation.” However, there was no evidence that he
compensated himself from Trust assets before claiming the single fee representing
two percent of Trust asset values.

¶45 On the topic of the beneficiaries’ best interests, they argue that
Mewis needed to maintain hourly billing records to protect trust assets from being
used to overcompensate Mewis. The beneficiaries are correct that the efforts that
Mewis devoted to trust administration—as measured in part by the time that he
reasonably devoted to administration—were among the factors that the circuit
court was to consider in its discretionary role of evaluating the reasonableness of
Mewis’s compensation. See Peabody’s Estate v. Lawrence College, 218 Wis.

22
No. 2024AP640

541, 260 N.W. 444, 447; WIS. STAT. § 701.0708(2) (authorizing circuit court to
“allow more or less compensation” to a trustee, depending on all pertinent
circumstances). But the beneficiaries make an unsupported leap from this
proposition to the argument that hourly billing records by Mewis were “essential”
to the circuit court’s compensation assessment.

¶46 The beneficiaries may also mean to make the related argument that
hourly billing records were “essential” for the beneficiaries to determine whether
to object to Mewis’s claimed compensation and to attempt to invoke the circuit
court’s authority to review and possibly reduce it. As we now explain, we are not
persuaded that hourly billing records were “essential” to provide the court or the
beneficiaries with an adequate basis to evaluate the reasonableness of Mewis’s
claimed two-percent fee.

¶47 It is true that such records would have provided relevant information
in evaluating the reasonableness of Mewis’s claimed fee. And, a trustee who fails
to keep detailed records accounting for the trustee’s “time and labor” runs the risk,
depending on all relevant circumstances, that a circuit court will not credit the
trustee’s after-the-fact estimate of time spent administering a trust. But the facts
of this case illustrate that an itemized accounting of time is not necessary for a
court to make sufficient relevant findings and to properly exercise its discretion in
assessing a trustee’s time and labor, in addition to other relevant factors, to resolve
a contested issue regarding proposed trustee compensation. Thus, the court here
was able to exercise its role in ensuring that Mewis’s compensation was
reasonable and, in that way, to protect the interests of the beneficiaries.

¶48 Although the contention is not well-explained, implied in the
beneficiaries’ argument about protecting their interests is the following

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No. 2024AP640

proposition. The duty to keep adequate records under WIS. STAT. § 701.0810(1) is
closely connected to the duty to keep beneficiaries “reasonably informed about the
administration of the trust” under WIS. STAT. § 701.0813(1). As far as it goes, this
proposition finds support in pertinent secondary authority. It rests on a logical
connection between keeping beneficiaries “reasonably informed about the
administration” and some forms of recordkeeping. See UNIF. TR. CODE § 810 cmt.
(UNIF. L. COMM’N 2004) (“[t]he duty to keep adequate records … is implicit in the
duty to act with prudence” and “the duty to report to beneficiaries”).10 But here,
the beneficiaries fail to direct us to evidence supporting their position that the
specific hourly billing records of Mewis that they requested were necessary to
keep the beneficiaries, in the language of § 701.0813(1), “reasonably informed.”
Attorney Jackson accurately informed the beneficiaries that the basis of Mewis’s
fee constituted, following pertinent customs, two percent of the total value of the
Trust, and there is no supported allegation that Mewis or Jackson engaged in
misrepresentation. Although Jenny in particular testified to dissatisfaction with
Mewis’s work, she also made clear that the beneficiaries had a reasonable
understanding of the nature of the assets in the Trust and of the work that Mewis
needed to perform to distribute the assets. Moreover, the beneficiaries make no
effort on appeal to account for the fact that Jackson’s disclosures included
Jackson’s billing statements. Indeed, the beneficiaries do not even refer to this
aspect of Jackson’s response to their request, much less do they address its
potential significance in providing them with insight into the nature and scope of
Mewis’s work for the Trust.

10
We may rely on comments to the Uniform Trust Code. WISCONSIN STAT. § 701.1203
states that WIS. STAT. ch. 701 “shall be applied and construed to effectuate its general purpose to
make uniform the law with respect to the subject of this chapter among states enacting it.”

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No. 2024AP640

¶49 It is significant that the beneficiaries’ specific breach-of-trust
argument on appeal is that Mewis failed to document and disclose his work in the
particular format of hourly billing records. None of the trust code provisions
relied on by the beneficiaries define trustee duties in terms of specific formats of
records that must be collected, created, or maintained. Instead, WIS. STAT.
§ 701.0810(1) requires only that a trustee keep “adequate records,” and WIS. STAT.
§ 701.0813(1) requires that a trustee keep beneficiaries reasonably informed and
“report” certain information. See UNIF. TR. CODE § 813 cmt. (“The Uniform Trust
Code employs the term ‘report’ instead of ‘accounting’ [for § 813(c)] in order to
negate any inference that the report must be prepared in any particular format or
with a high degree of formality.”); ALAN NEWMAN ET AL., BOGERT’S THE LAW OF
TRUSTS AND TRUSTEES § 961 (July 2024 Update) (“No particular system or form
of accounts must be followed by the trustee for its records.”). Moreover, the Trust
here had nothing to say about the format of records that Mewis had to keep. For
example, it did not require that Mewis be compensated on an hourly basis. And,
putting the terms of the Trust to the side, the beneficiaries have not shown that
they needed hourly billing records created by Mewis in order to be reasonably
informed about the appropriateness of Mewis’s proposed fee.

Duty to Keep Beneficiaries Reasonably Informed

¶50 The beneficiaries argue that Mewis was in breach of trust under WIS.
STAT. § 701.0813 by failing to promptly provide the beneficiaries with hourly
billing records of Mewis’s work in response to their request. This argument
appears to rest entirely on § 701.0813(1), which requires trustees to keep
beneficiaries “reasonably informed about the administration of the trust,” and does
not rest on the more specific disclosure duties in § 701.0813(2)-(3).

25
No. 2024AP640

¶51 In the interest of judicial efficiency, we assume that the beneficiaries
are correct that we review de novo the issues of what constitutes keeping
beneficiaries “reasonably informed about the administration of the trust” and of
what information requests made by beneficiaries are “unreasonable under the
circumstances” under WIS. STAT. § 701.0813(1).11 We do, however, continue to
accept the circuit court’s findings of historical fact, none of which have been
shown to be clearly erroneous.

¶52 Given our discussion above rejecting the beneficiaries’ argument
that Mewis was obligated to compile the hourly billing records that they sought as
part of his duty to keep records, it would be illogical to say that Mewis was
required to inform the beneficiaries of facts that he was not required to compile
into a record in the first place. For the reasons stated above, we conclude that
hourly billing records—whether they had been compiled contemporaneously with
Mewis’s work on the Trust or instead constructed retroactively following the
beneficiaries’ request—were not necessary to keep the beneficiaries reasonably
informed about the administration of the Trust under the circumstances here.

11
This assumption is not a small one. We review deferentially other assessments by
circuit courts of what is reasonable under the circumstances in the context of Wisconsin trust law.
See Teasdale v. Teasdale, 261 Wis. 248, 255, 264, 52 N.W.2d 366 (“the matter of trustee’s
compensation … is for … the trial court’s sound discretion influenced by the particular
circumstances of each case”); Sensenbrenner, 76 Wis. 2d at 634 (whether trustee’s delay in
distributing assets under the trust is unreasonable is a “finding” of the circuit court based on other
“findings of fact” that this court will not disturb unless clearly erroneous).

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No. 2024AP640

¶53 In sum on this issue, we reject the beneficiaries’ arguments that
Mewis breached his duties as trustee in any of the three ways alleged.12

III. Jackson’s Attorney Fees

¶54 The beneficiaries argue that it would be “unconscionable and
absurd” to require the Trust to pay Jackson’s attorney fees for his work
representing the Trust after the beneficiaries lodged their objection to Mewis’s
claimed fee. They emphasize the following testimony that Jackson gave at the
evidentiary hearings on their petition: Jackson “made no request for fees” at the
time the beneficiaries lodged the objection, taking the position that requesting fees
would represent “a conflict of interest.” The beneficiaries argue that the circuit
court’s order—which, to repeat, appeared to award Mewis all of Jackson’s fees—
erred to the extent that this included Jackson’s attorney fees generated by his work
that occurred following their objection.13 We conclude that the beneficiaries fail
to identify a basis to reverse the court’s order regarding Jackson’s attorney fees.

12
Given these conclusions, we need not reach the beneficiaries’ arguments regarding
appropriate remedies for any breach, including the denial or reduction of Mewis’s claimed fee or
barring Mewis from receiving the specific real estate identified in the agreement. See WIS. STAT.
§ 701.1001(2)(h)-(j) (permitting circuit court to impose remedies for breach of trust including
reducing or denying compensation to trustee; ordering recovery of wrongfully disposed of trust
property; or ordering “any other appropriate relief … available at common law, or under equity
principles”); WIS. STAT. § 701.1002(1) (trustee who commits breach of trust “is liable to an
affected beneficiary for the greater of” “[t]he amount required to restore the value” of trust
property lost due to the breach and any profit the trustee made resulting from the breach).
13
The beneficiaries also appear to argue more broadly that the circuit court erred in
permitting Mewis to use Trust assets to cover the cost of his own personal legal fees in
connection with this action, because Mewis breached the Trust. But we discern no developed
argument that any such contention does not necessarily fail in light of our conclusion that the
beneficiaries do not establish that there was a breach of trust.

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No. 2024AP640

¶55 It is fatal to this argument that the beneficiaries’ brief in chief on
appeal does not identify record support for the proposition that the circuit court
ordered the payment of Trust assets to cover the fees for any or all of the work the
Jackson performed as attorney for the Trust after the beneficiaries objected to
Mewis’s claimed fee. It is only for the first time in their reply brief that they
purport to identify or quote specific terms of the court order awarding Jackson’s
attorney fees that they challenge. See CreditBox.com, LLC v. Weathers, 2023 WI
App 37, ¶36, 408 Wis. 2d 715, 993 N.W.2d 802 (court of appeals need not address
arguments raised for the first time in reply brief). And, even then, they do so
without the required citation to the record, and further without attempting to
meaningfully interpret the order in light of the facts in the record. See Tam v.
Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (court of appeals
may reject argument for lack of support with citation to facts in the record).
Similarly, for the first time on reply, they note times, after the beneficiaries filed
their petition and before Mewis retained a new attorney to represent him in this
action, when Jackson appeared as Mewis’s attorney of record and submitted
filings on his behalf. These arguments come too late.

¶56 A related point is that the beneficiaries’ request for relief from this
court is incoherent. Their only request for relief is a determination that fees
allegedly awarded to Jackson were inappropriate as a matter of law. They do not
seek a remand to the circuit court for factfinding; instead, we are asked to resolve
any ambiguities in the record. Further, the beneficiaries fail to state the amount
that they submit would be the appropriate amount of compensation for Jackson’s
attorney fees.

¶57 The beneficiaries completely ignore our standard of review. They
merely assert that the issue of alleged overpayment of fees to Jackson represents

28
No. 2024AP640

the application of statutory standards to undisputed facts. However, they fail to
come to grips with the fact that this issue depends on numerous factual
determinations and an assessment of the equity of the circumstances, which are
determinations and assessments for the circuit court to make, not this court. See
Nationstar Mortg. LLC v. Stafsholt, 2018 WI 21, ¶23, 380 Wis. 2d 284, 908
N.W.2d 784 (decision “to grant equitable remedies is reviewed for an erroneous
exercise of discretion”); WIS. STAT. §§ 701.0106 (“principles of equity
supplement” the trust code), 701.1004(1). The beneficiaries do not attempt to
show that the court failed to rely on appropriate and applicable law, or that the
court failed to base its decision on relevant facts in the record. See Trust of Rene
von Schleinitz v. Maclay, 2016 WI App 4, ¶36, 366 Wis. 2d 637, 874 N.W.2d
573.

CONCLUSION

¶58 For all these reasons, we affirm the circuit court order denying the
beneficiaries’ petition to deny or reduce the fee claimed by Mewis or Jackson’s
attorney fees.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

29