In re Meyer Family Revocable Trust

IN THE COURT OF APPEALS OF IOWA

No. 24-1247
Filed September 4, 2025

IN THE MATTER OF THE MEYERS FAMILY REVOCABLE TRUST

CARL GORMAN MEYERS and TERESA RENEE WOODLEY, Appellants.

________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County,

Clinton R. Boddicker, Judge.

Potential beneficiaries of a trust appeal the district court’s order finding the

devise to one of the beneficiaries adeemed. AFFIRMED AS MODIFIED.

Ryan D. Gerling of Cray Law Firm, PLC, Burlington, for appellants.

Timothy B. Gulbranson and Jenny L. Juehring of Lane & Waterman LLP,

Davenport, for appellee.

Considered by Ahlers, P.J., and Badding and Buller, JJ.
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AHLERS, Presiding Judge.

This case is before us a second time. Siblings Teresa Woodley, Lora

Hickey, and Carl Meyers disagree about how assets from The Meyers Family

Revocable Trust (the Trust)—a trust established by their parents, Cathy and Paul

Meyers—should be distributed.

I. Factual and Procedural Background

The underlying facts of this case are undisputed and were thoroughly

summarized the first time this case was before our court. See In re Meyers Fam.

Revocable Tr., No. 22-0866, 2023 WL 3335996, at *1–3 (Iowa Ct. App. May 10,

2023). So we will not repeat them, but we will highlight the important ones.

Paul and Cathy Meyers executed wills and the agreement creating the Trust

on the same day in 2012. At that time, Paul and his son Carl each owned fifty

percent of the shares of Meyers & James Construction Company, Inc. (the

Company). Paul and Cathy’s wills provided that all property each of them owned

when they died would pass to the Trust and be distributed in accordance with the

terms of the Trust agreement. In relevant part, the Trust agreement provides that,

after both Paul and Cathy’s deaths, “[a]ll right, title, and interest in and to [the

Company] shall be distributed to Carl Gorman Meyers if he is living at said time.”

All remaining assets are to be distributed in equal shares to the three children.

In 2017, Paul and Carl entered a stock purchase agreement (Purchase

Agreement) whereby Paul sold his shares of stock in the Company to Carl for

$374,449.90. To satisfy the purchase price, Carl immediately paid Paul

$50,616.56 and executed a promissory note payable to Paul for the balance of

$323,833.34 (the Note). To secure payment of the Note, Carl also executed a
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security agreement giving Paul a security interest in “[a]ll of [Carl]’s right, title and

interest in [the Company].”

About three years after he sold his shares of the Company to Carl, Paul

died, and Cathy died a few months later. All their assets passed to the Trust. Paul

and Cathy’s three children became co-trustees of the Trust, but Lora eventually

resigned, leaving Carl and Teresa as co-trustees.

A dispute developed between the three siblings regarding Carl’s obligation

to pay the remaining balance on the Note to the Trust. Carl and Teresa took the

position that Carl had no such obligation, and Lora took the position that he did.

Due to the dispute, the Trust’s attorney filed an application invoking the court’s

jurisdiction. Shortly thereafter, Carl and Teresa, as co-trustees, executed a

document declaring that the Trust “shall not assert that any amounts are owed to

the Trust by [Carl] for Carl[’s] previous purchase of [the Company].” In response,

Lora filed a petition against Carl and Teresa alleging a breach of trust and unjust

enrichment. Lora also sought attorney’s fees.

Lora filed a motion for summary judgment. Even though Lora hadn’t argued

that the bequest of the interest in the Company adeemed because Paul (and, after

Paul’s death, the Trust) no longer owned any such interest, the district court

granted Lora’s motion based on ademption and awarded attorney fees. Carl

appealed. Our court reversed and remanded for further proceedings because the

district court granted summary judgment based on ademption, an issue not raised

in Lora’s motion for summary judgment. Id. at *4.

On remand, Lora filed an amended petition alleging “breach of trust—duty

of loyalty and impartiality” (count I), “breach of trust—objection to accounting”
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(count II), “unjust enrichment” (count III), and requesting attorney fees. Then she

filed a motion for partial summary judgment in her favor on count I or, alternatively,

on count III, and on her request for attorney fees. This time Lora raised an

ademption argument supporting her motion.

The district court granted Lora’s motion, agreeing that the bequest to Carl

had adeemed, determined Carl and Teresa breached their fiduciary duties as co-

trustees by seeking to avoid Carl’s obligation to pay the Trust the balance of the

Note, removed Carl and Teresa as co-trustees, and ruled that Lora would be

awarded attorney fees payable by Carl and Teresa individually upon Lora’s

submission of an attorney fee affidavit. Following Lora’s submission of an attorney

fee affidavit, the court ordered Carl and Teresa to each pay Lora $19,133.43 in

attorney fees. Carl and Teresa appeal. Lora asks us to affirm and to order Carl

and Teresa to pay her appellate attorney fees.

II. Discussion

Carl and Teresa raise three issues on appeal. They contend: (1) the district

court erred in concluding that the bequest to Carl of “[a]ll right, title, and interest in

and to [the Company]” adeemed; (2) the district court erred in concluding that Carl

and Teresa breached their fiduciary duties by declining to enforce the Note; and

(3) the district court erred in its award of attorney fees to Lora. We address each

issue in turn.

A. Ademption

We review the district court’s grant of summary judgment for correction of

errors at law. Villarini v. Iowa City Cmty. Sch. Dist., 21 N.W.3d 129, 133

(Iowa 2025). Summary judgment is proper only when there are no genuine issues
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of material fact and the moving party is entitled to judgment as a matter of law. Id.

In considering a motion for summary judgment, we view the facts in the light most

favorable to the nonmoving party, including giving the nonmoving party every

legitimate inference that can be drawn from the record. Id.

Resolution of the dispute in this case, of course, calls for us to address

whether the Trust’s provision devising the interest in the Company to Carl

adeemed. More specifically, we are called upon to determine whether the Note

and security interests that Paul received in exchange for selling his shares in the

Company amount to an interest in the Company that Carl is entitled to receive. If

not, then the provision of the Trust devising the interest in the Company adeemed.

If Carl receives the Note, it will effectively eliminate his obligation to pay the Trust

the remaining balance owed on the Note, resulting in the Trust not receiving the

balance of the Note to distribute equally to the three siblings.

“[W]e have defined ademption as ‘a taking away’ and generally use it to

refer to removing or eliminating a specific bequest from a will or trust before the

death of the testator.” In re Steinberg Fam. Living Tr., 894 N.W.2d 463, 465 n.1

(Iowa 2017) (citing In re Est. of Anton, 731 N.W.2d 19, 23 (Iowa 2007)). “An

ademption occurs by ‘[t]he destruction or extinction of a testamentary gift by reason

of a bequeathed asset’s ceasing to be part of the estate at the time of the testator’s

death.’” Id. (quoting Ademption, Black’s Law Dictionary (10th ed. 2014)).

We begin our analysis of this issue by rejecting three of Carl and Teresa’s

arguments. First, we reject their contention that the Trust provision devising the

interest in the Company to Carl is not a specific bequest. The fact that the provision

states “[a]ll right, title, and interest in and to [the Company]” instead of simply “all
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shares of the Company” doesn’t make the bequest any less specific. The fact

remains that the provision attempts to devise a specific item, namely all interest in

the Company. This is a specific bequest.

Second, we reject their contention that we cannot consider the Purchase

Agreement. Their contention is based on the legal principle that extrinsic evidence

cannot be considered to interpret the Trust provision at issue. But we do not look

to the Purchase Agreement to shed light on what that provision means. We look

to the Purchase Agreement as proof that Paul sold his shares of the Company to

Carl more than three years before Paul and Cathy died—facts that are undisputed.

Ademption, by its nature, involves an asset owned by a testator or trustor when

the applicable conveying instrument is executed that is no longer owned when the

time comes for distribution. Given this fact, we must consider evidence of what

happened to the asset to determine whether the bequest adeemed. That is why

we consider the Purchase Agreement and why we reject Carl and Teresa’s

contention that we cannot.

Third, we reject the claim that the Note is some type of right or interest in

the Company such that the Trust provision devising “[a]ll right, title, and interest in

and to [the Company]” to Carl applied to the Note. The Note is no such thing. Paul

sold his entire interest in the Company to Carl. In return, he received money and

a promise for more money (i.e., the Note). The Note is part of the proceeds of

Paul’s sale of his shares of stock in the Company to Carl; it is not a right or interest

in the Company.

With the rejection of those arguments in mind, we turn to the crux of the

matter. The Trust provision in question requires the Trust to distribute to Carl “[a]ll
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right, title, and interest in and to [the Company].” Except for security interests

securing the Note—a topic we address later—we conclude that Paul owned no

right, title, or interest in the Company at the time of his death, so no such right,

title, or interest passed to the Trust. Therefore, the Trust had no such right, title,

or interest to distribute to Carl. But that does not fully resolve the dispute, as we

still need to determine whether the gift failed by ademption or Carl is entitled to the

proceeds of Paul’s sale of his shares of stock in the Company—namely the Note—

as a substitute for the interest in the Company itself.

Ademption occurs when an item of specifically bequeathed property is not

in the estate (or, in this case, a trust) at the time of the testator’s death. Steinberg,

894 N.W.2d at 468. In that event, the bequest is adeemed, or “taken away.” Id.

That is what happened here. The Trust agreement provided that, upon the death

of Paul and Cathy, “[a]ll right, title, and interest in and to [the Company]” was to be

distributed to Carl. But, except for a security interest, the Trust owned no such

property. Carl and Teresa argue that the Note is simply a different form of Paul’s

ownership of shares of stock of the Company. But, as noted previously, the Note

is proceeds from the sale of the shares of stock, but it is not any type of ownership

interest in the Company.

Our supreme court has repeatedly rejected the argument Carl and Teresa

make here that Carl should receive a substitute asset (i.e., the Note) when the

asset he was bequeathed (i.e., interest in the Company) is no longer owned by the

testator. For example, in In re Estate of Sprague, the testator’s will and codicil

bequeathed a specific parcel of real estate to her stepdaughters, but the testator

sold the real estate on contract before she died. 57 N.W.2d 212, 214 (Iowa 1953).
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Despite the fact that the contract was clearly proceeds of the sale of the real estate,

the court found that the gift of the real estate adeemed and the stepdaughters were

not entitled to the proceeds from the sale (i.e., the contract), noting that “the subject

matter of the devise was a tract of real estate and not a contract to sell real estate.”

Id. at 216–17. The same is true here. The subject matter of the devise to Carl was

an interest in the Company and not a note from the sale of that interest.

Similarly, in In re Estate of Keeler, the testator’s will bequeathed to her son

a note secured by a mortgage on a parcel of real estate. 282 N.W. 362, 363–64

(Iowa 1938). But before the testator died, the owners of the real estate reconveyed

it to the testator in return for her surrendering and canceling the note and mortgage.

Id. at 363. When the testator died she owned the real estate, not the note and

mortgage bequeathed to her son, so the court found the bequest to the son had

adeemed. Id. at 365. In so finding, the court rejected the son’s “theory that the

subject matter of the bequest still exists but in a changed form.” Id. In rejecting

the argument, the court said:

At the time the will was made the testatrix owned a note, secured by
a mortgage,—personal property. At the time she died she owned
real estate, the note and mortgage having been surrendered and
canceled; that obligation had been completely wiped out, just the
same as if [the party that owed money under the note] had paid her
in cash.

Id. The same reasoning applies here.

Finally, in In re Will of Miller, the testator’s will contained a specific bequest

of real estate to specified family members. 105 N.W. 105, 105 (Iowa 1905),

overruled on other grounds by Newbury v. McCammant, 182 N.W.2d 147
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(Iowa 1970).1 Before the testator died, he sold the real estate to his son in return

for a promissory note. Id. The court found the issue to be “narrowed down to the

single question whether the promissory notes given to the testator for the price of

real estate sold by him are to be distributed under” the clause of the will specifically

bequeathing the real estate to specified family members, or whether the notes

passed under the residuary clause of the will. Id. at 106. The court answered this

question by holding that it is “well settled that upon sale of devised real property

by the testator the proceeds of such sale of which he may die possessed will not

be substituted for the property itself, unless a direction so to do is found in the will.”

Id. We have a closely analogous situation here with proceeds of the sale of a

specifically devised asset. As in Miller, we will not substitute proceeds for the

specifically devised property, as there is no direction to do so in the Trust

agreement.

From these cases, we conclude that the rule is that specific bequests of

property that the testator no longer owns at the time of distribution adeem and are

not replaced by proceeds. Part of the rationale behind this rule is that the testator

knows that the specifically bequeathed property has been disposed of and if they

didn’t want the bequest to adeem, they could have changed their will or trust. See

Sprague, 57 N.W.2d at 216 (“She knew that she had acquired an undivided interest

1 The language in Newbury partially overruling In re Will of Miller reads, “For
reasons heretofore stated we agree with that observation and In re Will of
Miller . . . is accordingly overruled insofar as inconsistent with this opinion.”
Newbury, 182 N.W.2d at 151. It is not entirely clear in Newbury what observation
the court was referring to or which parts of In re Will of Miller it found inconsistent
with its opinion, but we will explain later in this opinion why we believe the
overruling of Miller in Newbury is on a different ground than what we rely upon in
this part of our opinion.
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in a contract to sell the real estate and yet she did not change her will, although

she lived for some considerable time thereafter.”); Keeler, 282 N.W. at 366 (“[The

testator] had knowledge of the condition of her estate after she canceled the note

and mortgage. She knew that she had taken title to this real estate but she did not

change the will although she lived approximately a year and a half after she took

title.”). This rationale applies here with equal force. And to this we add the

observation that, if it had been Paul’s intent to cancel the Note (or transfer it back

to Carl) upon his death, such intent could have been expressed in the Note itself,

but it wasn’t.

Our case law recognizes exceptions to the above-described rule that

specific bequests of property that the testator no longer owns at the time of

distribution adeem and are not replaced by proceeds. One exception is when

specifically devised property is missing from the estate because of some act or

event involuntary as to the testator, such as when the testator’s attorney-in-fact or

guardian disposes of the property without the knowledge of the testator or when

the testator is incompetent, and proceeds are identifiable. See Anton, 731 N.W.2d

at 26–28 (refusing to find ademption of identifiable proceeds when the testator’s

attorney-in-fact sold specifically devised property without the testator’s

knowledge); In re Est. of Bierstedt, 119 N.W.2d 234, 236 (Iowa 1963) (“Where, as

here, the testator is incompetent and under guardianship, a sale by the guardian

does not work an ademption so far as the proceeds are traceable.”).

This exception does not apply here because there is no question that Paul

was competent and voluntarily sold the specifically bequeathed property after

executing the will and Trust agreement but before he died. Our cases recognize
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that, when this exception does not apply, disposal of specifically devised property

amounts to ademption, including as to the property’s proceeds. See Anton, 731

N.W.2d at 27 (noting in a case involving identifiable proceeds that “[i]f [the testator]

was aware of the transaction, was aware of the impact the transaction had on her

estate plan, and did not change her will, ademption would, of course, occur under

the identity theory”); Bierstedt, 119 N.W.2d at 238 (“Our rulings in the Keeler,

Sprague, and Bernhard[2] cases . . . are sound and we adhere to them. We have

simply followed the prevailing view as to ademption by the acts of a guardian of an

insane or incompetent testator with his ward’s property.”); see also Steinberg, 894

N.W.2d at 469 (citing Anson and Bierstedt in noting “that our previous rulings

holding that property was adeemed when competent testators sold or otherwise

disposed of specific bequests were sound and would continue to control”).

A second exception applies in the situation presented in Newbury. 182

N.W.2d 147. In Newbury, the testator’s will directed her executor to sell specific

real estate and distribute the proceeds rather than distributing the real estate itself.

Id. at 148. But before she died, the testator sold the specific real estate on contract,

so there was nothing for the executor to sell. Id. As to the real estate at issue, she

owned only the rights in the contract and not the real estate itself. Id. The court

noted that “the gift is of proceeds from specified realty to be sold upon testatrix’

death. . . . Thus the gift never had identity as specified realty.” Id. at 150. Because

the gift had always been of proceeds and not the real estate itself, the court refused

to find ademption of the gift in the form of the contract because the contract was

2 In re Est. of Bernhard, 112 N.W. 86 (Iowa 1907).
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proceeds that were “(1) identifiable, (2) found in the estate, and (3) constitute

identical property which testatrix intended should pass to [the named beneficiaries

of the specific bequest].” Id. at 151.

Here, if the Trust agreement directed the trustees to sell “[a]ll right, title, and

interest in and to [the Company]” and distribute the proceeds to Carl, then the

exception in Newbury may apply. But that is not what happened here. Here, the

gift directed by the Trust agreement was to give Carl “[a]ll right, title, and interest

in and to [the Company],” not the proceeds of any such right, title, or interest. As

a result, the third requirement to trigger the exception recognized in Newbury—

specifically that the proceeds constitute identical property to that intended to be

passed—has not been met. Therefore, the exception does not apply, and

ademption prevents giving Carl the Note that represents the proceeds of Paul’s

sale of his shares of stock in the Company.3

Based on the above, we conclude that the district court correctly ruled that

the gift of “[a]ll right, title, and interest in and to [the Company]” does not include

the Note and Carl is not entitled to receive the Note or be relieved from its

obligations under the provisions of the Trust.

But, as previously alluded to, we reach a different conclusion with respect

to the security interests securing the Note. Those security interests fall within the

grant of “[a]ll right, title, and interest in and to [the Company].” As a result, we find

3 As noted in footnote 1, Newbury noted that it overruled In re Will of Miller “insofar

as inconsistent with” the Newbury opinion. We interpret this limited overruling of
Miller to refer to the exception recognized in Newbury just described. As we have
determined that exception does not apply, we also determine that the limited
overruling of Miller does not apply to the general rule that Miller follows as
described earlier in this opinion.
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that the Trust agreement gives those security interests to Carl, so the collateral in

the form of security interests in the Company is released. In short, Carl still owes

the outstanding balance of the Note, but the Note is no longer secured by any

security interests in favor of the Trust. The district court’s order is modified

accordingly.

B. Breach of Fiduciary Duty

After finding that the gift of all interest in the Company to Carl adeemed, the

district court determined that Carl and Teresa breached their fiduciary duties as co-

trustees by trying to give the Note to Carl and relieve him of the obligation to pay

the Note’s outstanding balance. As a consequence, the district court removed Carl

and Teresa as co-trustees and appointed a bank as the trustee. Carl and Teresa

challenge this finding and action by the district court.

The remedies for breach of trust by a trustee are exclusively equitable, and

any action for such breach is to be addressed in a court of equity. Iowa Code

§ 633A.4501(2) (2021). As an equitable proceeding, our review is de novo. Iowa

R. App. P. 6.907.

Carl and Teresa contend they did not breach their fiduciary duties because

they had a good faith belief that their actions of trying to relieve Carl from his

obligation under the Note were justified. We disagree. A breach of any duty a

trustee owes to a beneficiary is a breach of trust. Iowa Code § 633A.4501(1).

Remedies for a breach of trust include removal of the trustee. Id.

§ 633A.4502(1)(e).

We start our analysis by identifying several duties trustees have. Trustees

have a duty to administer the trust “solely in the interest of the beneficiaries” and
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to “act with due regard to their respective interests.” Id. § 633A.4202(1). Trustees

are also prohibited from engaging in self-dealing and from obtaining personal

advantage from trust property. Orud v. Groth, 708 N.W.2d 72, 79 (Iowa 2006); see

also Iowa Code § 633A.4202(2) (permitting a beneficiary to void “[a]ny transaction

involving the trust which is affected by a material conflict between the trustee’s

fiduciary and personal interests”). They also have the duty to “take reasonable

steps to enforce claims of the trust.” Iowa Code § 633A.4211.

Following our de novo review, we find that Carl and Teresa violated all the

above-described duties. It is clear that the Note was not an interest in the

Company such that Carl should be relieved of his obligation to satisfy the Note by

paying its outstanding balance to the Trust to be distributed equally to the three

siblings.4 Carl’s efforts to forgive the outstanding balance owed on the Note—

efforts in which Teresa was complicit—was a failure to administer the trust solely

in the interest of beneficiaries, a form of self-dealing intended to gain a personal

advantage, and a failure to take reasonable steps to enforce the Trust’s claims to

receiving the outstanding balance of the Note to distribute to all beneficiaries.

Based on this conduct, both Carl and Teresa committed a breach of trust, and the

4 And even if we assumed for the sake of argument this was not clear, it was clear

that there was at least a question about the propriety of trying to relieve Carl from
responsibility for payment of the Note. As such, at the very least, Carl and Teresa
should have invoked the court’s jurisdiction to resolve the question. See Iowa
Code § 633A.6101 (allowing any interested party to invoke the court’s jurisdiction
to address affairs of the trust); see also id. § 633A.4202(2)(c) (permitting an
exception to the voidability of a transaction involving a conflict between a trustee’s
fiduciary and personal interests if “[t]he transaction is approved by the court after
notice to interested parties”). Yet Carl and Teresa did not invoke the court’s
jurisdiction to resolve the question after notice to Lora. Instead, they simply
declared that the Trust would not be seeking to collect the outstanding balance
owed on the Note.
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district court was correct in so finding. See id. § 633A.4501(1) (“A violation by a

trustee of a duty the trustee owes a beneficiary is a breach of trust.”). We also

agree with the district court’s decision to remove Carl and Teresa as trustees as a

consequence of their breaches. See id. § 633A.4502(1)(e) (granting power of

removal). They have demonstrated an inability to deal fairly with Lora as it relates

to the Note, and we see no purpose in setting the table for future fights by letting

Carl and Teresa continue as trustees. We affirm on this issue.

C. Attorney Fees

Carl and Teresa lodge multiple challenges to the district court’s order

requiring them to pay Lora’s attorney fees. Lora contends that Carl and Teresa

failed to preserve error on their challenges. To address these issues, we put Carl

and Teresa’s challenges into two categories: (1) those challenging individual items

and categories of fees listed on the attorney fee affidavit submitted by Lora’s

attorney, including challenges based on claims of prior fee awards, prior denial of

fees, and prior payment of fees; and (2) those based on the decision to award fees

and the general amount thereof.

As to the first category of challenges, we find that Carl and Teresa never

raised them to the district court. Because they never made them, the district court

never addressed them, so they are not preserved for our consideration. See Meier

v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). By first raising these challenges

on appeal, Carl and Teresa are asking us to be a court of first view rather than a

court of review. That is not our role. See Plowman v. Fort Madison Cmty. Hosp.,

896 N.W.2d 393, 413 (Iowa 2017) (noting that an appellate court is “a court of

review, not of first view” (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7
16

(2005))). We understand that the district court ruled on Lora’s attorney-fee claim

so quickly after she filed the attorney fee affidavit that Carl and Teresa may not

have had time to resist it and tell the court why they resisted it (i.e., make the

challenges they now make on appeal). Nevertheless, they certainly had time to

file a motion under Iowa Rule of Civil Procedure 1.904(2) or some other motion

asking the court to address their objections. A rule 1.904(2) or other motion calling

the court’s attention to its omission is required to preserve error when the district

court fails to address an issue the party desires to address on appeal. Meier, 641

N.W.2d at 539. As Carl and Teresa did not do that, the first category of challenges

are not preserved for our review.

As to the second category of challenges, because the court ruled on the

issue by awarding fees and setting an amount, there is a ruling preserved for our

review. We review for abuse of discretion. In re Trust No. T-1 of Trimble, 826

N.W.2d 474, 482 (Iowa 2013).

The court awarded fees under Iowa Code section 633A.4507, which

provides:

In a judicial proceeding involving the administration of a trust,
the court, as justice and equity may require, may award costs and
expenses, including reasonable attorney fees, to any party, to be
paid by another party or from the trust that is the subject of the
controversy.

Our supreme court has adopted nonexclusive criteria for interpreting what justice

and equity require under section 633A.4507:

[G]eneral criteria drawn from other types of cases provide
nonexclusive guides. These include (a) reasonableness of the
parties’ claims, contentions, or defenses; (b) unnecessarily
prolonging litigation; (c) relative ability to bear the financial burden;
(d) result obtained by the litigation and prevailing party concepts; and
17

(e) whether a party has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons in the bringing or conduct of the litigation.

Trimble, 826 N.W.2d at 491 (quoting Atwood v. Atwood, 25 P.3d 936, 947 (Okla.

Ct. App. 2001)). The district court applied these nonexclusive criteria in approving

Lora’s claim of $38,266.86 when it noted

the complexity and nature of the issues raised by the . . . motion for
summary judgment, the protracted nature of the litigation between
Lora Hickey and he[r] co-beneficiaries Carl Meyers and Teresa
Woodley, and the time necessary . . . for Lora Hickey’s attorney to
present her claim and obtain[] a ruling by the court.

We find no abuse of the court’s discretion in awarding fees and setting the amount.

We affirm on this issue.

III. Lora’s Claim for Appellate Attorney Fees

Lora asks us to order Carl and Teresa to pay her attorney fees incurred for

this appeal. The same statute that permits Lora to claim attorney fees at the district

court—section 633A.4507—permits her to claim appellate attorney fees, as the

statute does not exclude such claim. See Abernethy v. Schmitt, 879 N.W.2d 866,

869 (Iowa Ct. App. 2016) (“Attorney fees are permitted to be awarded when

allowed by statute, and when not expressly excluded, appellate attorney fees may

be awarded as well.”). We consider the same nonexclusive criteria identified in

Trimble. 826 N.W.2d at 491. The first, second, and fourth criteria—

reasonableness of Carl and Teresa’s claims, unnecessarily prolonging litigation,

and prevailing party concepts—cut in favor of awarding fees, as Lora is the

prevailing party and she has had to defend an appeal in which Carl and Teresa

have taken a largely defenseless position. As to relative ability to bear the financial

burden, the record does not provide us with enough information to assess this
18

criteria, so we view it as a neutral one. As to the final criteria, although we find

Carl and Teresa’s position to be largely baseless, we do not find them to have

acted in bad faith, vexatiously, wantonly, or for oppressive reasons in the conduct

of the litigation. Balancing these criteria and also considering the sizeable award

of district court fees, we find that Lora should bear the cost of her appellate attorney

fees without contribution from Carl or Teresa.

IV. Conclusion

We affirm the district court’s order in all respects as to ademption of the

specific bequest to Carl as described in this opinion, except we modify it to provide

that the security interests in the Company held by the Trust are released to Carl

and extinguished. We affirm the decision finding that Carl and Teresa breached

their fiduciary duties and the decision to remove them as trustees of the Trust. We

also affirm the district court’s award of attorney fees, finding much of the challenge

to the award unpreserved and no abuse of discretion as to the issues that were

preserved. Finally, we decline to order Carl or Teresa to pay Lora’s appellate

attorney fees for this appeal. Costs are assessed equally to Carl and Teresa.

AFFIRMED AS MODIFIED.