IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 124

OCTOBER TERM, A.D. 2016

December 22, 2016

TAMRA ACORN, REBECCA SHWEN, and 

FEDERER HOLDING COMPANY, LLC, a 

Wyoming close limited liability company,

Appellants

(Defendants),

v.

LORI MONCECCHI and DINO MONCECCHI,

Appellees

(Plaintiffs).

No. S-16-0099

REBECCA SHWEN and the MARGIE JEAN 

FEDERER REVOCABLE TRUST OF JUNE 29, 

1988, As Amended and Restated,

Appellants

(Defendants),

v.

LORI MONCECCHI and DINO MONCECCHI,

Appellees

(Plaintiffs).

No. S-16-0100
LORI MONCECCHI and DINO MONCECCHI,

Appellants

(Plaintiffs),

v.

TAMRA ACORN, REBECCA SHWEN, 

FEDERER HOLDING COMPANY, LLC, a 

Wyoming close limited liability company, and the 

MARGIE JEAN FEDERER REVOCABLE TRUST 

OF JUNE 29, 1988, As Amended and Restated,

Appellees

(Defendants).

No. S-16-0101

Appeal from the District Court of Laramie County

The Honorable Steven K. Sharpe, Judge 

Representing Tamra Acorn, Rebecca Shwen, and Federer Holding Company, LLC in 

Case Nos. S-16-0099 and S-16-0101:

John M. Walker, Robert J. Walker, and Autumn A. Aspen of Hickey & Evans, 

LLP, Cheyenne, Wyoming. Argument by Mr. John Walker.

Representing Rebecca Shwen and the Margie Jean Federer Revocable Trust in Case 

Nos. S-16-0100 and S-16-0101:

Alexander K. Davison of Patton & Davison, Cheyenne, Wyoming.

Representing Lori and Dino Moncecchi in Case Nos. S-16-0099, S-16-0100, and S-16-

0101:

Weston W. Reeves and Anna M. Reeves Olson of Park Street Law Office, Casper, 

Wyoming. Argument by Mr. Reeves.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

FOX, Justice.

[¶1] During the course of their marriage, M. W. “Bud” Federer (Bud) and Margie 

Federer (Margie) amassed a sizeable estate, predominantly comprised of apartment 

complexes throughout Wyoming. The Federers formed numerous entities to manage 

their holdings for their benefit during their lives, and for the benefit of their three 

daughters. As so often happens, the parents’ attempt to impose harmony along with the 

assets they conveyed to the next generation was unsuccessful. The sisters disagreed 

about money, and those disagreements blossomed into accusations of misconduct and 

breaches of the duties that attach to their roles as trustees and LLC managers. The sisters 

filed claims, counterclaims, and cross-claims, which the district court sorted out after a 

bench trial. We affirm the district court’s ruling in part, and reverse and remand in part.

ISSUES

[¶2] In addition to the question of jurisdiction, which this Court raises on its own, the 

parties raise numerous issues, which we consolidate and restate below.

1. Does this Court have jurisdiction to entertain the parties’ appeals, or must we 

dismiss because the Judgment is not a final appealable order?

2. Was the district court’s conclusion that Dino Moncecchi did not breach his 

fiduciary duties to Federer Holding Company, LLC, by not soliciting bids from 

competitive property management companies or by appropriating business opportunities 

for Spartan, clearly erroneous? 

3. Was the removal of Rebecca Shwen as trustee of the Margie Jean Federer 

Revocable Trust based on findings that were clearly erroneous?

4. Did the district court incorrectly apply the burden of proof for establishing 

damages resulting from Rebecca’s breach of fiduciary duty?

5. Did the district court abuse its discretion when it awarded attorney fees 

against Rebecca for filing a frivolous claim?

FACTS

[¶3] Bud enjoyed a successful career as a businessman in Wyoming. He and his wife, 

Margie, had three daughters: Rebecca, Lori, and Tamra.1 Bud died in 2003. Margie was 

diagnosed with Alzheimer’s disease and has not been able to manage her affairs since at 

least 2010. In April of 2011, Margie moved to the Aspen Wind assisted living facility 

 

1 We use first names to avoid confusion.
2

where she receives round-the-clock care. During Bud’s life, and after he died, the family

created a number of entities to hold and manage their business interests and to pass Bud 

and Margie’s estate to their daughters and their families. The current dispute concerns 

three of those entities: Spartan Management, LLC (Spartan), Federer Holding Company, 

LLC (FHC), and the Margie Jean Federer Revocable Trust (MJFRT). The Margie Jean 

Federer Marital Trust (Marital Trust) also plays a role. 

I. Spartan, FHC, and the apartment complex management

[¶4] The Federer family assets include nine low-income apartment complexes located 

throughout Wyoming. These apartments were or are managed in accordance with the 

United States Department of Housing and Urban Development (HUD). Each apartment 

complex operates as a separate limited liability partnership and is owned by various 

Federer trusts and other parties and entities.

[¶5] Spartan was formed in 1972 to manage these apartment complexes. In 1993, Bud 

hired Dino Moncecchi to work for Spartan. Dino is married to Lori, the Federers’ middle 

daughter. Spartan became an LLC in 1995, and Dino became its manager. Over time,

Dino and Lori received Spartan ownership interests as compensation and purchased 

additional interests. At the time of the trial, the Moncecchis owned 65 percent of 

Spartan, and the Marital Trust owned the other 35 percent. The three Federer sisters are

equal beneficiaries of the Marital Trust.

[¶6] FHC was created in 2006 to serve as the general partner of the partnerships 

owning the apartment complexes and to “provide continuity of management and liability 

protection,” as noted by the attorney who set up FHC. FHC acquired a one percent

interest in each of the apartment entities. The Moncecchis, Rebecca, and Tamra each 

own a one-third interest in FHC.

[¶7] Prior to 2006 (when FHC was formed), Spartan managed the apartment units 

pursuant to separate contracts with the various apartment entities. Because he had been 

managing the apartment complexes for the family as the manager of Spartan and in order 

to provide continuity to HUD, Dino was appointed the sole manager of FHC when it was 

formed and continued in that capacity until this litigation.

[¶8] After the formation of FHC and under Dino’s management, Spartan continued to 

manage the apartment complexes as it always had. The fees charged by Spartan were 

established by the original HUD contracts sometime between 1972 and 1995, and have 

not been changed, except as required by HUD in 2000 for five of the complexes that were 

in its Mark-to-Market program. Dino never sought competitive bids for the management 

of the properties. Dino testified that a typical property manager would perform the tasks 

of leasing, maintenance, rent collection, and bill payment. He contrasted that service 

with the service that Spartan provides, which includes typical management undertakings,
3

along with additional services such as conducting long-term needs assessments, 

negotiating insurance coverage and claims, reviewing audits, and other more far-reaching 

activities like working with governmental regulatory agencies and the legislature.

[¶9] Spartan also owns laundry facilities in each of the apartment complexes, which 

were installed when the properties were constructed. Spartan owns and maintains the 

washers and dryers but pays the apartment owners about $15,000 per year to rent the 

laundry facilities. Dino testified that the laundry facilities generate a total of 

approximately $40,000 to $50,000 in annual income for Spartan.

II. The MJFRT, loans to Tamra, her husband and their companies, the Moncecchi 

loan, and Rebecca’s conduct as trustee

[¶10] The MJFRT is a trust established by Margie. Margie was originally the trustee, 

but in 2010, her three daughters, Rebecca, Lori, and Tamra, succeeded her. In December 

2010, Lori and Tamra resigned as co-trustees, leaving Rebecca as the sole trustee of the 

MJFRT. There was extensive evidence at trial regarding Rebecca’s conduct as the trustee 

of the MJFRT. We limit our discussion of that evidence to the facts relevant to the issues 

presented on appeal.

A. Loans to Tamra, her husband and their companies

[¶11] When Margie was the trustee of the MJFRT, she occasionally made loans from the 

trust to her children and their spouses. The trust provides that in the event such loans are 

not repaid, the principal outstanding will be deducted from that heir’s distribution of the 

trust assets upon Margie’s death.2 From 2000 to 2005, Margie made six loans

(collectively referred to as the Acorn debt) to Tamra and her husband, David (the 

 

2 The MJFRT provides:

I have made some loans to my daughters, my daughters and their 

spouses, the spouses of my daughters, and businesses owned by my 

daughters, my daughters and their spouses, or my daughter’s spouses 

during my life. The promissory notes for these loans are held by this 

Trust. I direct that my Trustees offset the unpaid principal of the 

promissory notes owed this Trust by a daughter, a daughter and her

spouse, a daughter’s spouse, or a business owned by a daughter, a 

daughter and her spouse, or a daughter’s spouse against the trust shares 

to be distributed to the daughter. Such offset shall be accomplished by 

distributing the promissory notes to the daughter and considering the 

unpaid principal of the notes as part of or all of her trust shares. If the 

unpaid principal of the promissory notes is greater than the value of the 

daughter’s trust shares, the daughter or her descendants shall not be 

required to pay the difference to the Trust.
4

Acorns), and entities owned by them.

3

The Acorns made no payments on two of the 

loans and made very few payments on the other four. The last payment on two of those 

loans was made in 2004; on another in 2005, and on another in 2009. As of December 

2010, the amount outstanding on all six loans totaled $1,202,079 ($881,360 principal and 

$320,719 interest).

[¶12] In November 2010, the three sisters, Dino, and their family attorney, Mr. Leonard,

met to discuss the Acorn debt and the tax implications to the MJFRT of declaring the 

debt uncollectible. 4 Mr. Leonard summarized their discussion in his November 12, 2010

letter:

With the significant potential for estate tax on

Margie’s death, we discussed the necessity of having the 

debts owed to Margie’s trust by David and Tammy and their 

business entities declared uncollectible and written off to 

reduce the value of Margie’s estate and thereby reduce the 

potential estate tax that could be payable upon her death.

As a result of decisions made at the meeting, the MJFRT sent demand letters to the 

Acorns for each loan seeking payment in full of the outstanding debt and providing that if

no payment was made in response, the debt would be considered uncollectible or 

collateral pledged would be attached. Five of the six demand letters also informed that if 

the debt was declared uncollectible, “the offset of the unpaid principal” on the loans

“against Tami’s share of the Margie Jean Federer Revocable Trust will not be affected, 

and her trust share at the time for distribution will be reduced accordingly.” The 

remaining demand letter stated that if payment was not received, Tamra’s “partnership 

interests in T.F.S. II, L.L.C., offered as collateral for the loan, will be attached” and her 

“interests in the LLC valued at the amount of the balance due” on the loan will be 

transferred to the MJFRT to satisfy the debt.

[¶13] The Acorns did not make any payments in response to the demand letters. Five of 

the debts were subsequently declared uncollectible and corresponding 1099-C forms were 

prepared and sent to the IRS and the Acorns. The sixth debt, which was secured by 

Tamra’s interest in T.F.S. II, L.L.C., was satisfied by a transfer of 8.44 percent of her 

interest in T.F.S., II, L.L.C. to the MJFRT.

[¶14] In September 2012, Rebecca, as trustee of the MJFRT, made an additional loan to 

Tamra in the amount of $26,000 at 3.65 percent interest. Tamra repaid the loan in two 

 

3 Margie also made a personal loan in the amount of $82,658 to the Moncecchis. This loan is discussed at 

¶ 15.

4 Tamra appeared at only a portion of the meeting via telephone. Also in attendance were Brett Vizina, a 

long-time employee of various Federer businesses, and Mike Hoenig, an accountant who historically 

provided services to the Federer family and its businesses. 
5

installments of $13,000 each, in April and July 2013. It does not appear from the record 

that Tamra made any interest payments on this debt. See infra ¶ 59. 

B. The Moncecchi loan

[¶15] In 1999, Margie made a personal loan in the amount of $82,658 to Lori and Dino,

and they executed a note in favor of Margie. As with other notes corresponding to loans 

that Margie had made to her children and their spouses, that note was ultimately 

transferred to the MJFRT. Beginning in January 2012, Lori and Dino commenced

making monthly payments on that note, which were accepted by Rebecca on behalf of the 

MJFRT. On October 22, 2013, Lori and Dino filed their complaint initiating this lawsuit.

Beginning in November 2013, Rebecca returned Lori and Dino’s payments to them. 

Rebecca then sent a demand accelerating payment on the outstanding amount of the loan. 

At trial, Rebecca testified that Lori and Dino had not defaulted on any agreed payment 

schedule and admitted that she had called the note only because they had filed their

complaint against the MJFRT.

C. 2014 gifting

[¶16] It was Margie’s custom to make annual gifts of MJFRT assets to her children and 

grandchildren. Rebecca continued to make such gifts when she succeeded her mother as 

trustee. In March 2014, Rebecca made gifts to herself, Tamra, and other family members 

including her own children, Tamra’s children, and the Moncecchi children. However, 

Rebecca did not make any gifts to Lori or Dino at that time; rather, she waited over eight 

months until December 22 to make the corresponding gift to Lori. When questioned 

about her rationale for the delay in making the gift to Lori, Rebecca responded that she 

did it for “[n]o particular reason” and that she “just waited. I -- just did that. I don’t 

know.” She was asked the same question by her own counsel and admitted that it was 

“probably true” that her disagreements with Lori had something to do with her delaying 

the gift.

D. Rebecca’s payments to herself as trustee

[¶17] During the time Rebecca served as trustee of the MJFRT, she performed services

for the trust including accounting and bookkeeping duties, seeing to Margie’s personal 

care, and preparing Margie’s home for sale. Beginning in 2012, Rebecca paid herself 

$3,000 per month from the trust for the performance of these tasks.

5

That compensation 

schedule continued until May 2014, approximately eight months after this lawsuit was 

filed. Rebecca estimated that she spent between thirty and thirty-five hours per week 

caring for her mother, and another five hours per week on trust business activities. The 

 

5 The evidence at trial revealed that the trust paid Rebecca $13,656 in 2011; $31,131 in 2012; $39,750 in 

2013; and $15,000 in 2014.
6

care Rebecca provided to her mother consisted of visiting her at Aspen Wind and making

sure she had clothing and other items she needed. Lori also spent significant amounts of 

time caring for their mother and also provided items that she needed, without 

compensation. Rebecca testified that although her number one priority was her mother, 

she had time to keep a regular employment schedule, though a “40-hour-a-week job 

would be really difficult.”

[¶18] The Moncecchis’ accounting expert, Tammy Sorenson, testified that the value of 

the bookkeeping services provided by Rebecca for the trust was in the range of $1,560 to 

$2,160 per year. There was no evidence introduced by any party as to the value of 

Rebecca’s services in preparing the house for sale or her performance of other trust 

management functions, such as looking after oil and gas interests owned by the MJFRT. 

III. Procedural history and the district court’s findings

[¶19] The Moncecchis originated this lawsuit, claiming that Rebecca, as trustee of the 

MJFRT, had breached her fiduciary duties to the MJFRT and its beneficiaries. They 

sought the removal of Rebecca as a trustee, the payment of damages incurred by the trust 

as a result of her conduct, and a declaratory judgment determining whether Rebecca and 

Tamra, as members of FHC, had the legal authority to appoint themselves as additional 

managers of FHC. Rebecca, in her capacity as trustee of the MJFRT, answered the 

complaint and counterclaimed for payment of the note that the Moncecchis had executed 

in favor of the MJFRT. Rebecca and Tamra, as members of FHC, also counterclaimed, 

alleging that Dino breached his duties as manager of FHC by hiring Spartan to manage 

the apartment complexes. Rebecca and Tamra sought to remove Dino as manager of 

FHC and also sought damages for excessive management fees they claimed Spartan

charged.

[¶20] Rebecca and Tamra sought judgment as a matter of law on whether the FHC 

operating agreement allowed for additional managers. The district court ruled that it did, 

approving the addition of both Rebecca and Tamra as managers. That portion of the 

district court’s ruling has not been appealed. Thus, currently FHC has three managers: 

Dino, Rebecca, and Tamra.

[¶21] A four-day bench trial was held to resolve the remaining issues. After hearing the 

evidence and arguments, the district court found: Rebecca breached her fiduciary duty to 

the MJFRT in multiple ways; Rebecca’s breach of fiduciary duties warranted her removal 

as trustee of the MJFRT; the Moncecchis had the burden of proving damages to the 

MJFRT and they did not meet that burden; the Moncecchis were not in default on their 

loan from the MJFRT and the counterclaim seeking payment of that note was frivolous;

and Dino did not violate his duty of loyalty to FHC by hiring Spartan to manage the 

apartment complexes, by allowing Spartan to continue its receipt of HUD incentive fees, 

or by allowing Spartan to continue operating laundry facilities in the apartment 
7

complexes. The district court did not rule on the Moncecchis’ claim against Rebecca and 

MJFRT for an accounting.

[¶22] On appeal, the Moncecchis argue that they did not have the burden of proof of 

damages to the MJFRT; rather, Rebecca had the burden of proving that disbursements to 

her were proper, and that they are entitled to attorney fees. In their appeal, Rebecca, as 

trustee of the MJFRT, and the MJFRT argue that Rebecca should not have been removed 

as trustee, that the district court properly applied the burden of proving damages on the 

Moncecchis, and that the Moncecchis are not entitled to attorney fees. Finally, Rebecca 

and Tamra, as members of FHC, and FHC contend that the district court’s conclusion that 

Dino did not breach his duties to FHC was clearly erroneous.

STANDARD OF REVIEW

[¶23] Following a bench trial, this Court reviews a district court’s factual findings for 

clear error and reviews conclusions of law de novo. Wallop Canyon Ranch, LLC v. 

Goodwyn, 2015 WY 81, ¶ 21, 351 P.3d 943, 949-50 (Wyo. 2015).

The factual findings of a judge are not entitled to the limited 

review afforded a jury verdict. While the findings are 

presumptively correct, the appellate court may examine all of 

the properly admissible evidence in the record. Due regard is 

given to the opportunity of the trial judge to assess the 

credibility of the witnesses, and our review does not entail reweighing disputed evidence. Findings of fact will not be set 

aside unless they are clearly erroneous. A finding is clearly 

erroneous when, although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed.

Piroschak [v. Whelan, 2005 WY 26], ¶ 7, 106 P.3d [887,] 890

[(Wyo. 2005)]. Findings may not be set aside because we 

would have reached a different result. Harber v. Jensen,

2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo. 2004). Further,

we assume that the evidence of the prevailing party 

below is true and give that party every reasonable 

inference that can fairly and reasonably be drawn from 

it. We do not substitute ourselves for the trial court as 

a finder of facts; instead, we defer to those findings 

unless they are unsupported by the record or erroneous 

as a matter of law.

Id. (quotation marks omitted) (some citations omitted).
8

Id. at ¶ 21, 351 P.3d at 950 (some citations omitted). To the extent the issues require us 

to use a different or additional standard of review, we clarify that in our discussion of that

portion of the district court’s ruling. 

DISCUSSION

I. Does this Court have jurisdiction to entertain the parties’ appeals, or must we 

dismiss because the Judgment is not a final appealable order?

[¶24] Before we proceed with the issues presented by the parties on appeal, we must be 

satisfied that this Court has jurisdiction to entertain the appeals. Lokey v. Irwin, 2016

WY 50, ¶ 5, 374 P.3d 311, 313 (Wyo. 2016); Plymale v. Donnelly, 2006 WY 3, ¶ 4, 125 

P.3d 1022, 1023 (Wyo. 2006); W.R.A.P. 1.04(c).

[¶25] The order from which the parties appeal is the February 12, 2016 Judgment, which 

incorporated the district court’s Findings of Fact and Conclusions of Law, entered 

judgment in favor of Lori and Dino on the claims asserted against them, and removed 

Rebecca as trustee of the MJFRT, stating “in subsequent proceedings a new Trustee will 

be selected in accordance with the Findings of Fact and Conclusions of Law.” We 

therefore consider whether the Judgment is an appealable final order, despite the fact that

it does not address the Moncecchis’ claim against Rebecca and the MJFRT for an 

accounting and contemplates additional proceedings to select a new trustee.

[¶26] The Wyoming Rules of Appellate Procedure require that the notice of appeal 

“[i]dentify the judgment or appealable order” from which the appeal is taken. W.R.A.P. 

2.07(a)(2). The rules define an appealable order as an “order affecting a substantial right 

in an action, when such an order, in effect, determines the action and prevents a 

judgment[.]” W.R.A.P. 1.05(a). Whether an order is appealable is a question of law, 

which we decide de novo. Waldron v. Waldron, 2015 WY 64, ¶ 14, 349 P.3d 974, 977 

(Wyo. 2015). 

[¶27] “We have held that an appealable order under Rule 1.05(a) has three necessary 

characteristics. . . . It must affect a substantial right, determine the merits of the 

controversy, and resolve all outstanding issues.” Lokey, 2016 WY 50, ¶ 6, 374 P.3d at 

314 (internal quotation marks and citations omitted); see also Public Serv. Comm’n v. 

Lower Valley Power & Light, Inc., 608 P.2d 660, 661 (Wyo. 1980) (An appealable order 

is one that “determines the merits of the controversy and leaves nothing for future 

consideration” and “it is not appealable unless it does those things.”); Bond. v. Bond, 30 

A.3d 816, 819-20 (Me. 2011); Knoedler v. Blinco, 50 So.3d 1047, 1049-50 (Ala. 2010). 

[¶28] “Whether a judgment . . . is final so as to be appealable is determined on the basis 

of practical rather than technical considerations.” 4 C.J.S. Appeal and Error § 141 (2007, 
9

database updated December 2016). Commentators have recognized that “[f]inality may 

be achieved if the parties tacitly abandon the issues that seem to remain open.” 15B 

Charles A. Wright et al., Federal Practice & Procedure Jurisdiction § 3915.2 (2d ed.

database updated April 2016). In Skretvedt v. E.I. DuPont de Nemours, the lower court’s 

opinion did not explicitly dispose of the plaintiff’s claim for total and permanent 

disability income benefits and thus the claim remained pending. 372 F.3d 193, 201 (3d 

Cir. 2004). The appellate court determined that the pending claim was rendered moot 

because the plaintiff had not argued that those benefits had not been paid or that they had 

been miscalculated. Id. Therefore, there were no unresolved issues and the lower court’s 

opinion was appealable. Id. The court recognized that 

to determine the effect of a district court’s decision―and 

therefore to determine whether there is a final order―it is 

sometimes necessary to look beyond the pleadings. A

final order is not absent just because the district court 

failed to adjudicate all of the claims that were at one time 

pleaded. Instead, an appellate court must determine 

whether, at the time it is examining its jurisdiction, there 

remain unresolved issues to be adjudicated by the district 

court.

Id. (quoting Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997)).

[¶29] Here, while the district court’s Judgment did not explicitly determine the claim for 

an accounting, it has been resolved as a practical matter. The Moncecchis did not 

provide any evidence or argument at trial concerning that claim; they did not request an 

accounting in their proposed findings of fact and conclusions of law; and they did not 

claim error on appeal regarding the accounting. We can infer from the evidence 

contained in the record that through discovery the Moncecchis obtained all the 

information that was available regarding the accounts of the MJFRT and Rebecca’s 

administration of the trust. Moreover, if an accounting were to be awarded at this late 

date, it would not impact the rights of the parties or the issues before this Court. 

Accordingly, we conclude that the unresolved claim for an accounting does not affect the 

finality of the Judgment.6

[¶30] We now turn to the question of whether the task of appointing a new trustee, 

which was reserved by the district court, affects the finality of the Judgment. Ordinarily

a judgment will be considered final and appealable although further ministerial or 

 

6 We note that the issue of any outstanding claims could easily have been resolved by the district court in 

a final pre-trial order. See Pennaco Energy, Inc. v. Sorenson, 2016 WY 34, ¶ 26 n.12, 371 P.3d 120, 126 

n.12 (Wyo. 2016).
10

administrative actions by the trial court are necessary to implement it. 15B Wright, 

supra, § 3915.2; 4 C.J.S., supra, § 147. “Many reservations or conditions [in a judgment] 

are compatible with finality,” however “there is no convenient formula” to determine 

when the requirement for further proceedings defeats finality. 15B Wright, supra,

§ 3915.3. Judgments that “expressly retain[] jurisdiction to enter merely ministerial 

orders” can be final. Id. Likewise, judgments that completely resolve the claims and 

grant the relief sought have been held to be final even where further work remains to be 

done. 15B Wright, supra, § 3915.2 n.34.

[¶31] In Tyler v. City of Manhattan, 118 F.3d 1400, 1402 (10th Cir. 1997), the City 

argued that the lower court’s judgment was not appealable because it retained jurisdiction 

over the parties until they complied with the terms of the injunction it had ordered. The 

Tenth Circuit rejected that argument and held that “[t]he fact that the district court may 

retain jurisdiction over the parties to enforce its judgment does not convert the judgment 

to an interlocutory order for purposes of appeal.” Id. at 1402 n.1 (citations omitted). The 

court went on to explain that “[a]n order or judgment is final for purposes of appeal if it

resolves all substantive issues on the merits and effectively ends the litigation.” Id. 

(citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 

(1945); Turnbull v. Wilcken, 893 F.2d 256, 257 (10th Cir. 1990)). 

[¶32] In this instance, the selection of a new trustee was warranted because the district 

court resolved the pending claim for removal of Rebecca as the trustee of the MJFRT. In 

its Findings of Fact and Conclusions of Law, which were incorporated into the Judgment, 

the district court ordered:

The parties have thirty (30) days to agree upon a neutral 

trustee for the [MJFRT] and submit that proposal to the 

court with the proposed final judgment. If there is no 

agreement, the parties shall submit their proposals for a

neutral trustee to the court, and the court will name a 

successor trustee in the final judgment.

While the Judgment does not name a successor trustee, it provides “in subsequent 

proceedings a new Trustee will be selected in accordance with the Findings of Fact and 

Conclusions of Law.” From the record before this Court, we cannot determine whether a 

new trustee has been named. However, we conclude that the determination of a new 

trustee is a ministerial function and that because the claims of the parties have fully been 

resolved, that function does not defeat the finality of the Judgment. The Judgment is an 

appealable order, and we therefore have jurisdiction to consider the merits of the parties’ 

appeals.
11

II. Was the district court’s conclusion that Dino Moncecchi did not breach his 

fiduciary duties to Federer Holding Company, LLC, by not soliciting bids from 

competitive property management companies or by appropriating business 

opportunities for Spartan, clearly erroneous? 

[¶33] The majority of the arguments raised by FHC7concern its contentions that Dino 

should have solicited competitive bids for the management of the apartment complexes,

and that Spartan should not have retained HUD incentive payments or operated the 

laundry facilities in the apartment complexes for its sole benefit. FHC argues that the 

district court erred in concluding: (1) Dino had not breached his statutory and contractual 

obligations by not investigating industry standards or otherwise soliciting competitive 

bids from other management companies; (2) Dino had not breached his statutory 

obligations by engaging in self-dealing when he used Spartan to manage the apartment 

complexes; (3) Dino had not breached his statutory obligations when he availed himself 

of business opportunities that should have been afforded to FHC; and (4) Dino’s selfdealing was fair to the holding company because there is common ownership between 

FHC and Spartan.

[¶34] While we have recognized that limited liability companies are “intended to be 

much more flexible than a corporation[,]” GreenHunter Energy, Inc. v. Western 

Ecosystems Tech., Inc., 2014 WY 144, ¶ 20, 337 P.3d 454, 461 (Wyo. 2014); Kaycee 

Land & Livestock v. Flahive, 2002 WY 73, ¶ 12, 46 P.3d 323, 328 (Wyo. 2002); see also

Dale W. Cottam, et al., The 2010 Wyoming Limited Liability Company Act: A Uniform 

Recipe with Wyoming “Home Cooking,” 11 Wyo. L. Rev. 49, 64 (2011) (“the Original 

LLC Act intended for LLCs to be more flexible”), management of an LLC is not free of

formalities and duties. See Wyo. Stat. Ann. §§ 17-29-101 through 17-29-1105 

(LexisNexis 2015).

8

 Those duties include fiduciary duties owed to the LLC by its 

managers. Wyo. Stat. Ann. § 17-29-409(a) and (g).

 

7

In appeal No. S-16-0099, the Appellants are Tamra Acorn and Rebecca Shwen in their capacity as 

managers/officers of the Federer Holding Company, LLC and the Federer Holding Company, LLC. We 

will refer to these parties collectively as FHC.

8 FHC was formed in 2006. The 2010 Wyoming Limited Liability Company Act was effective on July 1, 

2010. 2010 Wyo. Session Laws, ch. 94, § 5. This lawsuit was filed in 2013 and FHC’s counterclaims 

were brought in 2014. Wyo. Stat. Ann. § 8-1-107 (LexisNexis 2015) provides:

If a statute is repealed or amended, the repeal or amendment 

does not affect pending actions, prosecutions or proceedings, civil or 

criminal. . . . nor shall any repeal or amendment affect causes of action, 

prosecutions or proceedings existing at the time of the amendment or

repeal, unless otherwise expressly provided in the amending or repealing 

act. 

We recognize that some of Dino’s conduct occurred prior to 2010 and continued through the date of this 

lawsuit and counterclaims. Thus, a cause of action might arguably have existed prior to the effective date 
12

[¶35] The fiduciary duties owed to an LLC by its manager require the manager to act 

carefully and disinterestedly. Larry E. Ribstein & Robert R. Keatinge, 1 Ribstein and 

Keatinge on Limited Liability Companies § 9:1 at 539 (2d ed. 2016). Wyoming’s 

Limited Liability Company Act, Wyo. Stat. Ann. §§ 17-29-101 through 17-29-1105,

describes those duties:

(b) The duty of loyalty of a [manager] in a [manager]-

managed limited liability company includes the duties:

(i) To account to the company and to hold as trustee 

for it any property, profit or benefit derived by the member:

(A) In the conduct . . . of the company’s activities;

(B) From a use by the [manager] of the 

company’s property; or

(C) From the appropriation of a limited liability 

company opportunity;

(ii) To refrain from dealing with the company in the 

conduct . . . of the company’s activities as or on behalf of a 

person having an interest adverse to the company; and

(iii) To refrain from competing with the company in the 

conduct of the company’s activities before the dissolution of 

the company.

Wyo. Stat. Ann. § 17-29-409(b).9The statute goes on to provide:

(c) Subject to the business judgment rule, the duty of care of 

a [manager] of a [manager]-managed limited liability 

company in the conduct . . . of the company’s activities is to 

act with the care that a person in a like position would 

reasonably exercise under similar circumstances and in a 

manner the [manager] reasonably believes to be in the best 

interests or at least not opposed to the best interests of the 

company. In discharging this duty, a member may rely in 

good faith upon opinions, reports, statements or other 

information provided by another person that the member 

 

of the 2010 Limited Liability Company Act. FHC asserted violations of the 2010 Act in its 

counterclaims. As a result, the district court applied the 2010 Act in its analysis and so do we. 

9 Wyo. Stat. Ann. § 17-29-409(g) makes these provisions applicable to manager-managed limited liability 

companies. 
13

reasonably believes is a competent and reliable source for the 

information. 

(d) A . . . [manager of] a [manager]-managed limited 

liability company shall discharge the duties under this chapter 

or under the operating agreement and exercise any rights 

consistently with the contractual obligation of good faith and 

fair dealing. 

Wyo. Stat. Ann. § 17-29-409(c) and (d). Thus, a manager of a limited liability company 

has statutorily-imposed duties of loyalty, care, and good faith and fair dealing. Those 

duties require the manager to conduct business in a manner that the manager reasonably 

believes to be in the best interests or not opposed to the best interests of the company, to 

refrain from competing with the limited liability company, and to act in good faith. Id. 

A. Dino’s failure to obtain competitive bids

[¶36] We turn to FHC’s contention that Dino’s failure to solicit competitive bids from 

other management companies breached his duties toward FHC. FHC contends that this 

failure was a breach of the covenant of good faith and fair dealing and the statutory duty 

to act reasonably and “in the best interests or at least not opposed to the best interests of 

the company.” Wyo. Stat. Ann. § 17-29-409(c). While FHC emphasizes the fact that 

Dino did not seek alternative bids, it presents no authority in support of the notion that a 

manager of an LLC has a duty to obtain competitive bids before entering into an 

agreement. 

[¶37] The district court concluded that Dino did not breach his duty of good faith and 

fair dealing or other duties to FHC when he did not seek a different management 

company to manage the apartment complexes. The court found:

Dino Moncecchi testified, very credibly to the court, that 

Spartan provides “full asset management” services for the 

nine apartments, which includes a comprehensive needs 

assessment on the properties. He also testified that he 

performs other duties that go beyond your “run-or-the-mill 

management services,” such as negotiating insurance claims 

and lobbying governmental entities on issues that impact the 

property owner. [FHC] did not challenge Dino on crossexamination as to these matters, and they appeared to concede 

that he performs these additional management duties.

The district court also found FHC’s expert to be unreliable, highlighting the fact that he 

did not compare the enhanced duties described by Dino to the fees charged by other 

management companies, and that he had not even seen the competitive bids for 
14

management services later obtained by Tamra and Rebecca. Finally, the district court 

noted that the bids solicited by Tamra and Rebecca exceeded the range that the FHC 

expert had testified would be reasonable.

[¶38] The district court’s finding that Dino’s failure to seek competitive bids and secure 

the services of a management company other than Spartan does not breach his duties as 

an LLC manager was not clearly erroneous, especially where Spartan’s services and its 

accompanying fees had been continuous and unchanged over a period of decades, and 

where FHC did not establish that Spartan’s fees were unreasonable. 

B. Self-dealing in hiring Spartan as management company

[¶39] However, the fact that the manager of an LLC enters into a contract with another 

entity owned, even partially, by the manager raises the question of whether that action 

was disinterested. See Wyo. Stat. Ann. § 17-29-409(b); Wallop Canyon Ranch, 2015 

WY 81, ¶ 52, 351 P.3d at 958 (stating in partnership context that “self-dealing can form 

the basis for a finding of conflict of interest by a partner, even when the deals are with a 

separate entity, when that entity has substantial connections with the partner”). Thus, we 

turn to the question of whether Dino, as manager of FHC, engaged in prohibited selfdealing when he continued to engage Spartan, which is owned in part by Dino and Lori.

[¶40] While our statutes governing limited liability companies do not specifically define 

conflicts of interest or self-dealing, they do prohibit a manager from dealing as a person 

“having an interest adverse to the company.” Wyo. Stat. Ann. § 17-29-409(b)(ii). “It is a 

defense to a claim under [this provision] that the transaction was fair to or at least not 

opposed to the limited liability company.” Wyo. Stat. Ann. § 17-29-409(e). Thus, once a 

party proves that a manager has an interest adverse to the limited liability company, the 

manager has the burden of establishing that the transaction was fair or not opposed to the 

company. See 3A William Meade Fletcher, Fletcher Cyclopedia of the Law of 

Corporations § 1036, at 49 (perm. ed. rev. vol. 2011 and Cum. Supp. 2016-2017));

Synetic Ventures I, LLC v. EVI Corp., 294 P.3d 478, 485 (Or. 2012); Int’l Equity Invs., 

Inc. v. Opportunity Equity Partners, Ltd., 407 F.Supp.2d 483, 501 (S.D.N.Y. 2005); 

Croton River Club, Inc. v. Half Moon Bay Homeowners Ass’n, Inc., 52 F.3d 41, 44 (2d 

Cir. 1995) (applying the same standard in the limited partnership context); Lynch v. 

Patterson, 701 P.2d 1126, 1133 (Wyo. 1985) (applying the same standard in the 

corporate context).

[¶41] The district court recognized the existence of a “potential conflict” between 

Dino’s position as the manager of FHC and his ownership interest in Spartan. This 

shifted the burden to Dino to prove that his continued use of Spartan to manage the 

apartment complexes was fair to FHC. The district court found that it was, and as a 

result, concluded that the fairness defense available under Wyo. Stat. Ann. § 17-29-
15

409(e) applied and there was no violation of the statutory provision prohibiting dealing 

with persons who have an adverse interest.

[¶42] The district court reasoned that Dino’s continued use of Spartan was fair to FHC

in part because there is common ownership between FHC and Spartan. Thus, if Spartan’s 

management of the apartment complexes benefitted Dino, it also benefitted the other

owners of FHC, namely Rebecca and Tamra, because of their interests in Spartan.

10

 FHC 

takes issue with this rationale, arguing, without citation to authority, that such reasoning 

is contrary to law.

[¶43] The fairness doctrine contained in the Wyoming Limited Liability Company Act 

provides that “[i]t is a defense to a claim under paragraph (b)(ii)[11]of this section and any 

comparable claim in equity or at common law that the transaction was fair to or at least 

not opposed to the limited liability company.” Wyo. Stat. Ann. § 17-29-409(e). Thus, 

the Act does not prevent managers from transacting business with the LLC, but it does 

require that the terms of the transaction are fair “to the limited liability company.” Id. 

(emphasis added). See also Wallop Canyon Ranch, 2015 WY 81, ¶ 54, 351 P.3d at 958 

(Individuals or entities are commonly principals in related businesses; this does not in 

and of itself create a conflict of interest when those related entities engage in business 

with each other.”).

[¶44] To the extent the district court determined that the use of Spartan was fair to FHC 

because it was fair to Rebecca and Tamra due to their status as beneficiaries of an owner 

of Spartan, that rationale was misplaced. The proper test is whether the transaction was 

fair to FHC. See 2 Zolman Cavitch, Business Organizations § 33.05[3] at 33-31 

(Matthew Bender/LexisNexis 2003). As summarized above, Dino testified regarding the 

services that Spartan performed, the origination of the fees charged to FHC, and the

reasonableness of those fees. See supra ¶ 8. That evidence supports the district court’s 

conclusion that the use of Spartan to manage the apartment complexes was fair. 

[¶45] Further, Wyoming’s Limited Liability Company Act provides that the operating

agreement governs “[t]he rights and duties under this chapter of a person in the capacity 

of manager,” Wyo. Stat. Ann. § 17-29-110(a)(ii), and provides that “[t]o the extent the 

operating agreement does not otherwise provide for a matter . . . this chapter governs the 

matter.” Wyo. Stat. Ann. § 17-29-110(b). Thus, where the operating agreement contains 

specific provisions regarding a manager’s rights and duties, it prevails. However, the Act 

also prohibits the operating agreement from eliminating the contractual obligation of 

good faith and fair dealing under Wyo. Stat. Ann. § 17-29-409(d).

 

10 Rebecca and Tamra are beneficiaries of the Marital Trust, which owns a 35 percent interest in Spartan.

11

 Wyo. Stat. Ann. § 17-29-409(b)(ii) provides that the duty of loyalty includes the duty to “refrain from 

dealing with the company in the conduct . . . of the company’s activities as or on behalf of a person 

having an interest adverse to the company[.]”
16

[¶46] The FHC Operating Agreement permits Dino, as the manager of FHC, to contract 

with entities owned by or affiliated with himself, such as Spartan. It states: “Agents, 

servants, employees, accountants, attorneys, investment advisors, independent 

contractors, and management companies hired under this Section may be Members of 

the Company or shareholders, members or employees of Company Members, or entities 

owned by or directly or indirectly affiliated with Members or the Manager.” (Emphasis 

added.) The operating agreement also contains the following provision: “No Exclusive 

Duty to Company. Manager and Officers are not required to manage the Company as 

their sole and exclusive function and they may have other business interests and may 

engage in other activities without violating their fiduciary duties under the Act and this 

Agreement.” These terms of the operating agreement grant permission to Dino, as the 

manager of FHC, to use Spartan, which is owned in part by Dino, to manage the FHC 

apartment complexes. This is corroborated by the fact that the attorney who drafted the 

FHC limited liability documents anticipated that management of the properties after FHC 

was formed would not change when he stated that “Dino was appointed manager [of 

FHC] since he had been managing the HUD partnerships for the family and to provide 

continuity for HUD.”

[¶47] Because the operating agreement allows Dino to contract with entities he owns for 

the management of FHC, Dino’s use of Spartan to manage the apartment complexes does 

not constitute improper self-dealing or a breach of his fiduciary duties. Further, FHC 

failed to establish that use of Spartan violated Dino’s duty of loyalty and good faith and 

fair dealing. The district court’s conclusion that Dino’s continued use of Spartan to 

manage the apartment complexes did not violate Dino’s duties was not clearly erroneous. 

C. Self-dealing in business opportunities

[¶48] FHC next argues that the district court erred when it concluded that Dino

Moncecchi had not breached his fiduciary duty when he availed himself of business 

opportunities that allegedly should have been afforded to FHC. FHC claims that Dino 

appropriated business opportunities belonging to FHC in two respects: first, by having 

Spartan retain HUD incentive fees, and second, in Spartan’s operation of laundry 

facilities in the apartment complexes.

[¶49] The duty of loyalty includes a duty to “account to the company and to hold as 

trustee for it any property, profit or benefit derived by the [manager] . . . [f]rom the 

appropriation of a limited liability company opportunity[.]” Wyo. Stat. Ann. § 17-29-

409(b)(i)(C). Other courts have held that this duty “includes the duty not to engage in 

enterprises directly in competition with and necessarily having an injurious or detrimental 

effect on the corporation’s business.” Astarte, Inc. v. Pacific Indus. Sys., Inc., 865 

F.Supp. 693, 707 (D. Colo. 1994) (citing T.A. Pelsue Co. v. Grand Enterprises, Inc., 782 

F.Supp. 1476, 1485 (D. Colo. 1991); Williams v. Stirling, 583 P.2d 290, 292 (1978)). 
17

The Astarte court explained that a party claiming breach of fiduciary duty through the 

appropriation of a business opportunity must

establish that it had an actual or expected interest in an asset 

or property, and that it had the financial ability to acquire the 

asset or property. See Collie [v. Becknell], 762 P.2d [727,]

730 [(Colo. App. 1988)]. Even though a corporation might 

have had some rights with regard to the acquisition of 

property, in order for that opportunity to be usurped, the 

acquisition must have been within the corporation’s 

expectation. Three G Corp. v. Daddis, 714 P.2d 1333, 1336 

(Colo. App. 1986). Similarly, to establish an expectancy, it is 

not sufficient for plaintiff to show only that a proposed 

opportunity possesses value to it, but plaintiff must also show 

that there is a practical, not a mere theoretical, basis for the 

opportunity. See Colorado and Utah Coal Co. v. Harris, 97 

Colo. 309, 313, 49 P.2d 429[, 431] (1935).

Astarte, 865 F.Supp. at 707 (emphasis added).

[¶50] We first examine the HUD incentive fees. FHC relies solely on the following 

exchange to support its contention that Dino breached his duty of loyalty with respect to 

those fees:

Q. [Attorney for FHC:] Now, the HUD agreements 

concerning the five HUD properties that [Spartan] is 

managing require that the property owners get to decide how 

the incentive performance fees are distributed, correct?

A. [Dino:] Yes.

Q. Throughout the entire time you were the sole manager of 

[FHC] and the sole manager of [Spartan], were incentive fees 

paid upon properties controlled by [FHC]?

A. Yes.

. . . .

Q. Who retained those incentive performance fees?

A. [Spartan] was paid the incentive performance fee 

according to the agreement.
18

Q. And is this the agreement that was entered into way back 

in 2004?

A. Well, yes, during the initial refinancing.

Q. And prior to the creation of [FHC]?

A. Yes.

Dino also testified that under his management of FHC, he continued operating under the 

terms of the prior management contracts. The evidence is uncontroverted that the 

payment of the HUD fees to Spartan was pursuant to Spartan’s agreements with the 

owners of the apartments, and FHC had no expectation of receiving the fees. Because 

FHC had no expectation of receiving those fees, Dino did not “appropriate” the HUD 

incentive fees and thus did not contravene his fiduciary duty to FHC. See Astarte, 865 

F.Supp. at 707.

[¶51] We now turn to the question of whether Spartan’s management of the laundry 

facilities in the apartment complexes breached the duty of loyalty as an appropriation of 

FHC’s opportunity. The evidence introduced at trial demonstrates that the laundry 

facilities also did not represent a corporate opportunity for FHC. The laundry facilities 

were installed when the properties were built, and they have been operated by Spartan 

pursuant to an agreement with the owners since that time, which was even prior to the 

time Dino began working for Spartan. Based upon these uncontroverted facts, there was 

no expectation that FHC would operate the laundry facilities in the apartment complexes. 

Therefore, Dino did not breach his duty of loyalty to FHC by continuing to have Spartan 

manage those facilities and receive the profits from doing so. The district court’s finding 

that Dino did not violate his statutory and contractual fiduciary duties to FHC is

supported by the record and is not clearly erroneous. We therefore affirm.

[¶52] FHC also argues that we should reverse the district court’s finding that it did not 

prove damages. Because we have affirmed the district court’s conclusion that Dino did 

not breach his fiduciary duties to FHC, we do not reach the question of damages. 

III. Was the removal of Rebecca Shwen as trustee of the Margie Jean Federer 

Revocable Trust based on findings that were clearly erroneous?

[¶53] The district court held that Rebecca breached her fiduciary duty as the trustee of 

the MJFRT when she engaged in the following conduct: making a loan to Tamra after 

other Acorn debts had been declared uncollectible, calling the Moncecchi loan, 

overpaying herself for duties performed as a trustee, and delaying the MJFRT 2014 gift 

to Lori. The district court then concluded that the cumulative nature of these violations 
19

warranted Rebecca’s removal as trustee. Rebecca does not dispute that calling the 

Moncecchi loan was a breach of her fiduciary duty, but she argues that making the loan 

to Tamra, paying herself, and delaying Lori’s 2014 gift did not violate her fiduciary duty. 

Thus, she contends, any breach on her part is not sufficient to warrant her removal as 

trustee.

A. Breach of fiduciary duties

[¶54] In determining a trustee’s standard of care, we look to both the trust provisions 

and the statutes governing trusts in Wyoming. Forbes v. Forbes, 2015 WY 13, ¶¶ 23-27, 

341 P.3d 1041, 1051-52 (Wyo. 2015). The “common duty owed by a trustee goes 

beyond mere ‘good faith’ unless otherwise provided by express terms of the trust.” Wells 

Fargo Bank Wyo., N.A. v. Hodder, 2006 WY 128, ¶ 33 n.7, 144 P.3d 401, 413 n.7 (Wyo. 

2006). The MJFRT provides that a trustee “will be indemnified and held harmless from 

the good faith exercise of all powers, duties, and elections of Trustee.” This language is 

similar to the language of the trust provision we considered in Forbes,

12 where we held 

that the express terms of the trust provided that the trustee’s duties did not go beyond

good faith. 2015 WY 13, ¶ 25, 341 P.3d at 1051. 

We have defined “good faith” as “faithfulness to an agreed 

common purpose and consistency with the justified 

expectations of the other party; it excludes a variety of types 

of conduct characterized as involving ‘bad faith’ because they 

violate community standards of decency, fairness or 

reasonableness.” Hodder, 2006 WY 128, ¶ 33, 144 P.3d at 

413 (quoting Scherer Const., LLC v. Hedquist Const., Inc.,

2001 WY 23, ¶ 18, 18 P.3d 645, 653 (Wyo.2001)).

Id. at ¶ 26, 341 P.3d at 1051. We have also held that this good faith standard does not 

exclude the application of other fiduciary obligations imposed by Wyoming statutes. Id.

at ¶ 27, 341 P.3d at 1051-52; Kerper v. Kerper, 780 P.2d 923, 930 (Wyo. 1989). Thus, 

Rebecca was required to conduct herself in compliance with the duty of good faith and 

the statutory provisions regarding a trustee’s duty of loyalty.

[¶55] The Wyoming Uniform Trust Code provides that “[a] trustee shall invest and 

manage the trust assets solely in the interest of the beneficiaries,” Wyo. Stat. Ann. § 4-

10-905 (LexisNexis 2015), and that “[i]f a trust has two (2) or more beneficiaries, the 

trustee shall act impartially in investing and managing the trust assets, taking into account 

any differing interests of the beneficiaries.” Wyo. Stat. Ann. § 4-10-906 (LexisNexis 

2015).

 

12 In Forbes, the trust agreement provided that “[n]o trustee hereunder shall be held personally liable for 

any act or omission whatever which he performs, commits, or suffers in good faith.” Id. at ¶ 23, 341 P.3d 

at 1051.
20

B. Loans to Tamra and Moncecchis

[¶56] We first examine whether Rebecca complied with these requirements when she 

made the loan to Tamra. In September 2012, the MJFRT made a $26,000 loan to Tamra 

at 3.65 percent interest. The district court held that Rebecca breached her fiduciary duty 

by making that loan when Tamra had previously defaulted on all of the trust’s prior loans. 

The court found:

Rebecca’s decision to make this loan to Tamra―with her 

poor track record of repayment of trust loans―stands in stark 

contrast to her decision to call Lori and Dino’s loan when the 

Moncecchis were making regular monthly payments. It again 

demonstrates a lack of impartiality in the manner in which 

Rebecca is administering this trust.

In a footnote, the district court commented that though “Tamra did eventually repay the 

principal of this loan (without interest), it does not take away from Rebecca’s imprudent 

decision to make the loan in the first place.”

[¶57] Rebecca argues that the district court’s conclusion that the loan to Tamra was a 

breach of her duties was erroneous for three reasons. First, she argues that the district 

court inconsistently concluded that her handling of the Acorn debt was proper because 

she had relied upon advice of counsel, yet the loan to Tamra was also based upon advice 

from the same attorney and the court found it to be a violation of Rebecca’s duties. 

Second, the court erred in finding that interest was not paid on the loan. Third, the loans 

that were declared uncollectible will still be deducted from Tamra’s share of the MJFRT 

distributions upon Margie’s death. Rebecca contends that based upon the evidence as a 

whole, it was not wrong for her to make the loan to Tamra and the district court 

demonstrated a “level of confusion” regarding the evidence when it concluded otherwise. 

We disagree. Assuming the evidence of the Moncecchis is true and giving them every 

reasonable inference that fairly can be drawn from that evidence, as we are required to 

do, we conclude that the district court’s finding that Rebecca breached her duties to the 

MJFRT in making the loan to Tamra was supported by the record and was not clearly 

erroneous. 

[¶58] The transactions conducted by Rebecca that were countenanced by the district 

court because she had sought the advice of counsel were complicated transactions with 

layers of tax and other implications. In addition, the record is replete with evidence 

regarding preparation for those transactions that included memoranda, meetings and 

exchanges between Rebecca, beneficiaries of the MJFRT, attorneys, and accountants. In 

contrast, the only evidence in the record respecting any consultation with an attorney 

about the loan at issue is a statement by Rebecca that she consulted with Mr. Leonard 
21

(the attorney for the Trust) about the loan and that he did not respond in writing. There is 

no evidence whether the loan was encouraged or discouraged by Mr. Leonard, whether 

the consultation included the potential ramifications of making such a loan, or whether 

the discussion was more extensive than a request to draft loan documents.

[¶59] Whether Tamra paid interest on the loan is irrelevant to the issue of whether it was 

a breach of Rebecca’s duty to make the loan in the first place. Moreover, while Rebecca 

claims that interest had been paid on the loan, the district court found otherwise. We 

defer to findings of the trial court when it is acting as a fact finder unless those findings 

are unsupported by the record or erroneous as a matter of law. Wallop, 2015 WY 81, 

¶ 21, 351 P.3d at 949-50. This finding is supported by the record. The note calls for 

twelve monthly payments beginning on February 1, 2013, with 3.65 percent interest; 

Tamra made no monthly payments; by the time the first payment of $13,000 was made in 

April 2013, $587.60 in interest had accrued; and by the time the next payment of $13,000 

was made in July 2013, $666.90 in interest had accrued. The check alleged to have been 

an interest payment by Tamra is dated more than a year later, is in the amount of $172.13,

and contains no reference to the loan.

[¶60] Finally, it is true that the principal (but not the interest) of the other Acorn loans 

that were declared uncollectible will still be deducted from Tamra’s share of the MJFRT 

distributions upon Margie’s death. See supra ¶ 11 n.2. However, that fact does not make

another loan to Tamra a prudent decision. The district court recognized the imprudence 

of making a loan to a borrower with a “poor track record.” In addition, when a loan was 

made from the MJFRT, the note became an asset of the MJFRT and estate taxes are paid 

based upon the value of the trust assets. Therefore, if Tamra failed to repay the loan and 

the loan was not declared uncollectible, on Margie’s death the MJFRT would owe taxes 

for the outstanding amount due on the note, even if that amount is deducted from Tamra’s

share of the MJFRT distributions. In short, making another loan, especially to a borrower 

who had proven her inability or unwillingness to pay principal and interest payments in 

the past, carried inherent risk to the trust. As the district court found, Rebecca’s loans to 

Tamra are especially indicative of her lack of impartiality when viewed in contrast to her 

decision to call the loan to Lori and Dino, a loan upon which they had been making 

timely payments. See infra ¶ 86. The district court’s conclusion that Rebecca’s decision 

to make this loan to Tamra was a breach of statutory duties requiring her to act 

impartially and in the interest of the trust beneficiaries was not clearly erroneous.

C. Rebecca’s payments to herself

[¶61] We now turn to the question of whether Rebecca’s payments to herself were a 

breach of her fiduciary duties to the MJFRT. The district court held that Rebecca 

“violated her fiduciary duties to the trust by overpaying herself for her services to the 

trust, and also using trust money improperly for herself.” Rebecca argues that the district 

court’s “negative opinion” toward her “clouded” its view of the facts regarding her 
22

compensation and that, although it is admittedly not a part of the record, an institutional 

trustee would charge much more than she did for the administration of the trust.13

Rebecca also emphasizes testimony given by the Moncecchis’ expert admitting that she 

does not know how much time was spent on activities other than bookkeeping to bolster 

her argument that her fees were reasonable. We find that the record supports the district 

court’s conclusion. 

[¶62] The MJFRT permits a trustee to pay herself a “reasonable trustee fee” for services 

rendered to the trust. The trust does not provide for compensation for the personal care 

of any of its beneficiaries. At trial, Rebecca testified regarding the time she spent on 

various activities:

Q. [Attorney for trust:] Okay. How much time would 

you spend per week with the personal care that you discussed 

with your mom?

. . . .

A. [Rebecca Shwen:] Okay. I would say I spend --

kind of hard to say -- 30, 35 hours a week.

. . . .

Q. How much time would you spend on behalf of 

your mother’s trust that would be related to her trust business 

activities?

A. Business activities?

Q. Not her personal care.

A. I would say about five hours a week.

 

13 We will not consider the fees an institutional trustee might charge to administer the MJFRT, as that 

evidence was never solicited or introduced at trial and is not part of the record on appeal. As we have 

stated on numerous occasions, we will not consider evidence that is not part of the record on appeal or

arguments that were not presented to the trial court. See, e.g., Beeman v. Beeman, 2005 WY 45, ¶ 10, 109 

P.3d 548, 551 (Wyo. 2005); Barnes v. Barnes, 998 P.2d 942, 945 (Wyo. 2000); Mize v. North Big Horn 

Hosp. Dist., 931 P.2d 229, 233 (Wyo. 1997).
23

Beginning in 2012, Rebecca paid herself $3,000 per month.14 She testified, “So in 2012 I 

began taking $3,000 a month from the trust so that I could spend this extra time with 

[Margie], then I could provide as much as I could care for her.” From 2012 through May 

2014, Rebecca received a total of $85,881 in compensation from the MJFRT. The 

Moncecchis’ accounting expert, Tammy Sorenson, testified that a reasonable annual fee 

for the bookkeeping services Rebecca provided to the trust ranges between $1,560 and 

$2,160. The trial court found this testimony to be credible and noted that it was 

corroborated by Mike Hoenig, the Federers’ accountant, who testified that if he had to 

perform the work performed by Rebecca, it would cost the trust an additional $1,500 to 

$2,000 per year. The record also shows that Rebecca spent $1,421.59 in trust money to 

pay for dining at various restaurants and fast food establishments between January 2013 

and June 2014.

[¶63] The district court held that Rebecca was “not charging the trust a ‘reasonable fee’ 

for her services,” that her fee “vastly exceed[ed]” the range that would be considered a 

reasonable bookkeeping fee, and that she could not justify her fee based on the time she 

spent caring for her mother because the trust does not provide compensation for such 

services. It found that there was no justification for using trust money for restaurant 

expenditures. The court concluded that this conduct was a breach of Rebecca’s fiduciary 

duties to the trust. These findings are not clearly erroneous. 

D. The delayed gift

[¶64] Finally, we examine Rebecca’s contention that delaying Lori’s 2014 gift did not 

violate her fiduciary duty. Rebecca concedes that she delayed this gift to Lori because of 

their “disagreement.” The district court determined that this conduct showed a “lack of

impartiality in the manner in which Rebecca administered the trust” and “demonstrate[d] 

bad faith.” On appeal, without citing any authority, Rebecca argues that the Moncecchis’ 

complaint did not allege that this conduct violated her fiduciary duties because it 

happened after the lawsuit was filed and they “could not have envisioned this issue” at 

that time, and that hostility between a trustee and a beneficiary is not, in itself, grounds 

for removal of a trustee.

[¶65] To the extent Rebecca’s argument is that because the Moncecchis filed this lawsuit 

in October 2013, they could not have alleged that the delay in gifting violated her 

fiduciary duties because it had not yet occurred, we note that the Moncecchis filed their 

First Amended Complaint on February 20, 2015, which was after the conduct at issue 

occurred. If Rebecca’s contention is that Lori did not plead her conduct in delaying the 

 

14 This payment schedule continued through May 2014, approximately eight months after the 

Moncecchis’ complaint was filed alleging that Rebecca was paying herself an excessive fee to manage the 

MJFRT.
24

loan was a violation of her fiduciary duties, we note that the Moncecchis’ First Amended 

Complaint contains the following allegation:

11. Defendant Shwen has materially breached the 

above-described fiduciary duties. The actions of Rebecca 

Shwen which violate her duty to the Revocable Trust include, 

but are not limited to:

. . . .

c. Hostility to beneficiary Lori Moncecchi and 

favorable and unequal treatment to beneficiary, Tammy 

Acorn. There are many instances of this, including favorable 

treatment to Acorn on loans, interest rates, sharing of 

information, and debt collection efforts. Shwen regularly 

evinces hostility to Lori Moncecchi.

[¶66] Rule 8(a)(2) of the Wyoming Rules of Civil Procedure states that a “pleading 

which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, 

or third-party claim shall contain . . . a short and plain statement of the claim showing 

that the pleader is entitled to relief[.]”

This rule is based upon the theory of notice pleading and only 

requires that a plaintiff “plead the operative facts involved in 

the litigation so as to give fair notice of the claim to the 

defendant.” Further, “pleadings must be liberally construed 

in order to do justice to the parties . . . .”

Ridgerunner, LLC v. Meisinger, 2013 WY 31, ¶ 12, 297 P.3d 110, 114 (Wyo. 2013) 

(internal citations omitted). As we stated in Forbes, “[w]hether the specificity 

requirement of the rule has been satisfied rests upon whether fair notice has been 

provided to the opposing party.” 2015 WY 13, ¶ 39, 341 P.3d at 1054.

[¶67] In Ridgerunner and Forbes, we held that the parties had not adequately given 

notice of their claims. In Ridgerunner, we considered whether the plaintiff had provided 

adequate notice in the complaint that it sought to pierce the corporate veil. 2013 WY 31,

¶ 16, 297 P.3d at 116. We concluded that because the complaint contained no indication 

of the plaintiff’s desire to pierce the corporate veil, the district court’s dismissal was 

proper. Id. In Forbes, the plaintiff had asserted three ways in which he claimed the 

defendant trustees had breached their duties to the trust, none of which gave notice that 

water rights were at issue. 2015 WY 13, ¶ 43, 341 P.3d at 1055. We held that because 

he had identified land transactions and not water transactions as a basis for his claim, the 

defendants were not put on notice of the water transactions as a basis for his breach of
25

loyalty claim, holding that if we concluded otherwise, “the defendants would potentially 

be required to prepare to litigate any of the actions they took as trustees.” Id. at ¶ 44, 341 

P.3d at 1055.

[¶68] Lynch addressed the question of whether the plaintiff had alleged sufficient facts 

in his complaint to assert his claim that the defendant directors took excessive salaries. 

701 P.2d at 1134. In his complaint, the plaintiff never mentioned salaries, but he did 

assert that the “directors had breached their fiduciary obligations by diverting funds from 

the corporation to its detriment. This allegation sufficed to inform the defendants that an 

issue existed as to the reasonableness of the executive salaries . . . .” Id. The 

Moncecchis’ allegations align more closely with those in Lynch. They state that Rebecca 

was hostile toward Lori and gave Tamra favorable treatment. Although the complaint 

does not specifically allege that Rebecca’s hostility toward Lori was demonstrated by her 

delay in making the 2014 gift, there were sufficient allegations to put Rebecca on notice 

that the Moncecchis took issue with her conduct toward Lori, especially as contrasted 

with Tamra. These allegations put Rebecca on notice that an issue existed as to the 

fairness of her treatment of Lori as a beneficiary of the trust, including her conduct in 

making gifts. “Allegations of particular acts or omissions of the defendant are 

unnecessary where the duty owed by the defendants appears to exist and to have been 

breached.” Id., 701 P.2d at 1134.

[¶69] The district court’s findings that Rebecca breached her fiduciary duty as the 

trustee of the MJFRT when she made the loan to Tamra after she had defaulted on other 

debts to the trust, when she called the Moncecchi loan, when she overpaid herself, and 

when she delayed the 2014 gift to Lori are not clearly erroneous. Because we affirm the 

district court’s conclusion that Rebecca breached her fiduciary duties to the MJFRT, we 

now turn to the question of whether the district court properly removed her as a trustee. 

E. Removal of Rebecca as trustee

[¶70] In Forbes, this Court set forth the standard for removal of a trustee when that 

trustee is a family member selected pursuant to the terms of the trust, as opposed to a 

court-appointed trustee:

Removal of a trustee, however, “usually will not be 

grounded on a mere error of judgment or conduct even 

though there is a technical breach of the trust, if the trust 

estate does not suffer.” Schildberg v. Schildberg, 461 

N.W.2d 186, 191 (Iowa 1990) (citing 76 Am. Jur. 2d Trusts

§ 130, at 370 (1975)). “Generally, the court will not remove 

a testamentary trustee absent a demonstrated abuse of 

power.” In re Estate of Klarner, 113 P.3d [150,] 157 [(Colo. 

2005)] (citing Copley v. Copley, 126 Cal.App.3d 248, 178 
26

Cal.Rptr. 842, 866 (1981); Culver v. Culver, 112 Ohio App. 

100, 169 N.E.2d 486, 489 (1960) (so long as trustee executes 

trust in good faith and sound discretion, court has no right to 

interfere)).

Id., 2015 WY 13, ¶ 95, 341 P.3d at 1065 (emphasis added).

[¶71] The district court found that “multiple intentional acts, done by Rebecca in bad 

faith, and with favoritism shown toward certain beneficiaries, reach the proper showing 

needed for her removal as trustee.” The district court’s “power to remove a trustee is 

‘rooted in equity’ and the court has ‘sound discretion’ to make the determination whether 

to remove a trustee, which we will not disturb absent an abuse of discretion.” Id. at ¶ 33, 

341 P.3d at 1053 (citations omitted); Shriners Hosps. for Children v. First Northern Bank 

of Wyo., 2016 WY 51, ¶¶ 96-97, 373 P.3d 392, 416 (Wyo. 2016). “In determining 

whether there has been an abuse of discretion, the ultimate issue is whether or not the 

court could reasonably conclude as it did.” Hodges v. Lewis & Lewis, Inc., 2005 WY 

134, ¶ 11, 121 P.3d 138, 143 (Wyo. 2005) (quoting Landsiedel v. Buffalo Properties, 

LLC, 2005 WY 61, ¶ 23, 112 P.3d 610, 616 (Wyo. 2005)). “A court does not abuse its 

discretion unless it acts in a manner which exceeds the bounds of reason under the 

circumstances.” Williams v. Williams, 2016 WY 21, ¶ 13, 368 P.3d 539, 544 (Wyo. 

2016) (quoting Pahl v. Pahl, 2004 WY 40, ¶ 6, 87 P.3d 1250, 1252 (Wyo. 2004)).

[¶72] Rebecca argues that her hostility toward Lori is not, by itself, sufficient cause to 

remove her as trustee. Hostility between a trustee and beneficiaries will generally be 

insufficient to justify the removal of a trustee:

Hostility may naturally exist in trust relationships since trusts 

are usually created to withhold control of the trust principal 

from the beneficiaries. Hostility between the trustee and the 

beneficiaries of the trust alone is insufficient to require the 

removal of the trustee. To be sufficient to require removal, 

the hostility must interfere with the proper administration of 

the trust.

. . . The real question in these situations is whether or not the 

hostility, in combination with existing circumstances, 

materially interferes with the administration of the trust or is 

likely to cause that result.

Forbes, 2015 WY 13, ¶ 96, 341 P.3d at 1065 (citations omitted). 

[¶73] We agree that Rebecca’s hostility toward Lori alone would not suffice to justify 

the removal of Rebecca as trustee of the MJFRT. However, that hostility sparked the 

conduct that ultimately was found to be a breach of her duties as trustee. We find no 
27

abuse of discretion in this instance where, as explained in the preceding sections, the 

district court justifiably found that Rebecca breached her fiduciary duties of loyalty and 

her duty of good faith when she paid herself for undertakings that were not compensable 

under the trust, when she improperly spent trust monies on herself, when she called the 

Moncecchi note, when she delayed Lori’s 2014 gift, and when she made the loan to 

Tamra. This conduct damaged the trust estate in that trust money was paid improperly 

for Rebecca’s benefit and manifested Rebecca’s willingness to abuse her power as trustee 

to benefit some beneficiaries while harming others. The district court’s conclusion that 

Rebecca “demonstrated that she lacks the ability to fairly and impartially administer this 

trust going forward for the benefit of all beneficiaries” does not exceed the bounds of 

reason under the circumstances. The district court did not abuse its discretion when it 

removed Rebecca as the trustee of the MJFRT. 

IV. Did the district court incorrectly apply the burden of proof for establishing 

damages resulting from Rebecca’s breach of fiduciary duty?

[¶74] The district court determined that the Moncecchis did not prove damages with a 

reasonable degree of certainty and, thus did not award damages for Rebecca’s breaches of 

fiduciary duty. The district court held that the Moncecchis “have not met their burden of 

establishing the economic damages resulting from” Rebecca’s breaches of her fiduciary 

duty. Relying upon Schlinger v. McGhee, 2012 WY 7, ¶ 12, 268 P.3d 264, 268 (Wyo. 

2012), the court explained:

129. As to the improper restaurant charges, the court could 

not glean from the trial testimony (or [the Moncecchis’]

exhibit 92), the actual economic damages suffered by the trust

with respect to these charges. While it is clear to the court 

that trust funds were transferred to Margie’s checking account 

and then improvidently spent by Rebecca, the total amount of 

the charges and the resulting loss to the trust was not 

established “with a reasonable degree of certainty.”

130. Similarly, [the Moncecchis] did not meet their burden 

of establishing damages for Rebecca’s conduct in 

overcharging for her administrative services. [The 

Moncecchis] did present credible testimony as to the 

reasonable value of Rebecca’s bookkeeping duties, which 

clearly constitute the bulk of Rebecca’s administrative 

services to the trust. However, [the Moncecchis] failed to 

address the reasonable value of other incidental work that 

Rebecca performed for the trust, such as preparing and listing 

her mother’s residence for sale with a real estate agent. 

Rebecca would be entitled to claim some fees for that work as 
28

the house is a trust asset, but the court should not have to 

guess or speculate as to the value of these services. 

Accordingly, the court finds that [the Moncecchis] have also 

failed to prove their damages for breach of fiduciary duty 

with a reasonable degree of certainty. 

[¶75] On appeal, the Moncecchis argue that the district court should have placed the 

burden on Rebecca, as the trustee, to prove that payments made to her were proper 

distributions. In response, Rebecca and the MJFRT argue that the burden of proving 

economic loss was properly placed on the Moncecchis and that they failed to meet this 

burden. Whether the district court applied the proper legal analysis to calculate damages 

is an issue of law, which we review de novo. Knight v. TCB Constr. & Design, LLC, 

2011 WY 27, ¶ 16, 248 P.3d 178, 183 (Wyo. 2011). 

[¶76] Schlinger was a breach of contract case in which the appellants challenged the 

sufficiency of the evidence presented at trial on damages. We held that in order to 

receive damages on a breach of contract, the plaintiff “has the burden of producing 

sufficient evidence to prove his damages” and that those damages must be established 

“with a reasonable degree of certainty[.]” Schlinger, 2012 WY 7, ¶ 12, 268 P.3d at 268. 

“[A] court may not resort to speculation or conjecture in determining the proper amount 

to award.” Id. (citations omitted).

[¶77] The Moncecchis argue that they had no burden to prove damages because trust 

cases require a different legal analysis. They contend that in trust cases the trustee bears 

the burden of establishing that payments made to the trustee were proper disbursements. 

They cite to a number of cases they claim stand for that proposition. See, e.g., In re 

McMillan’s Estate, 33 P.2d 369, 374 (N.M. 1934); Davis v. Jones, 254 F.2d 696, 699 

(10th Cir. 1958), cert. denied, 358 U.S. 865, 79 S.Ct. 97, 3 L.Ed.2d 98 (1958); Jicarilla 

Apache Nation v. United States, 112 Fed. Cl. 274, 302-03 (2013); White Mountain 

Apache Tribe of Ariz. v. United States, 26 Cl. Ct. 446, 449 (1992), aff’d, 5 F.3d 1506 

(Fed. Cir. 1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1538, 128 L.Ed.2d 191 (1994). 

[¶78] The cases relied upon by the Moncecchis reason that because a trustee always has 

the duty to keep accurate accounts regarding the administration of the trust, see 

Restatement (Second) of Trusts § 172 (1957), the trustee ought to bear the burden of 

proving that distributions from the trust are appropriate. For example, in Jicarilla, the 

court stated: “Consistent with the common-sense notion that it is the trustee’s burden to 

show that trust fund disbursements were authorized and otherwise proper, if a trustee fails 

to keep proper accounts, all doubts will be resolved against him and not in his favor.” 112 

Fed. Cl. at 302-03 (internal quotation marks and citation omitted). However, even those 

cases recognize that the beneficiary bears the initial burden of proving a loss as a result of 

the trustee’s breach of fiduciary duty. See Jicarilla, 112 Fed. Cl. at 304 (“[I]t is a 

principle of long standing in trust law that once the beneficiary has shown a breach of the 
29

trustee’s duty and a resulting loss, the risk of uncertainty as to amount of the loss falls on 

the trustee.”) (internal quotation marks and citation omitted)).

[¶79] Rebecca and the MJFRT argue that the beneficiary seeking relief bears the burden 

of proving damages. They refer to cases holding that generally a beneficiary seeking to 

obtain relief for a breach of trust bears the initial burden of proving damages. Some of 

those cases state that the beneficiary bears the burden of proving damages and that 

burden remains with the beneficiary at all times. See, e.g., SunTrust Bank v. Farrar, 675 

S.E.2d 187, 191 (Va. 2009); Parker v. Pine, 617 S.W.2d 536, 540 (Mo. Ct. App. 1981); 

Fed. Ins. Co. v. Mertz, 2016 WL 164618, *3 (S.D.N.Y. January 12, 2016). Other cases 

enunciate a clear rule that once a prima facie case of damages has been made, the burden 

shifts to the trustee to establish that he acted fairly and reasonably. John E. Shaffer 

Enters. v. City of Yuma, 904 P.2d 1252, 1255-56 (Ariz. Ct. App. 1995); New York State 

Teamsters Council Health & Hosp. Fund v. Estate of DePerno, 18 F.3d 179, 182-83 (2d 

Cir. 1994); Salovaara v. Eckert, No. 94 Civ. 3430 (KMU), 1998 WL 276186, at *4 

(S.D.N.Y. May 28, 1998), aff’d, 182 F.3d 901 (2d Cir. 1999). 

[¶80] The majority of courts agree with the latter approach and hold that there is a shift 

in the burden: once the beneficiary proves damages as a result of a breach of trust, the 

burden shifts to the trustee to show that disbursements from the trust were proper and 

offset the damages established by the beneficiary. 

A beneficiary seeking to obtain relief for a breach of 

trust must plead and prove facts which show the existence of 

a fiduciary duty and the failure of the trustee to perform it, 

and that consequently the court should grant the requested 

remedy. If he seeks damages, a part of his burden will be 

proof that the breach caused him a loss. . . . If the 

beneficiary makes a prima facie case, the burden of 

contradicting it or showing a defense will shift to the trustee.

George G. Bogert et al., The Law of Trusts and Trustees § 871, at 156-57 (Rev. 2d ed. 

1995 & Supp. 2016) (emphasis added); see also 3 Austin W. Scott et al., Scott and 

Ascher on Trusts § 17.4 (4th ed. 2007); LaMonte v. Sanwa Bank California, 52 Cal. Rptr. 

2d 861, 865 (Cal. Ct. App. 1996) (“In order to plead a cause of action for breach of 

fiduciary duty against a trustee, the plaintiff must show the existence of a fiduciary 

relationship, its breach, and damage proximately caused by that breach; the absence of 

any one of these elements is fatal to the cause of action.”); Oates v. City of Lincoln, 112 

Cal. Rptr. 2d 790, 796-97 (Cal. Ct. App. 2001) (same). 

[¶81] Here, the Moncecchis sought damages and thus they bore the initial burden of 

proving economic loss to the trust. They met this burden when they established that 
30

Rebecca overpaid herself by $80,66115 and improperly expended $1,421.59 in trust 

money for dining at various restaurants. The total damages to the trust is $82,082.59. At 

that point, the burden shifted to Rebecca to establish what, if any, amounts paid to her 

were proper and thus legitimately offset the damages proven by the Moncecchis. The 

record contains no evidence of a reasonable fee for the time Rebecca spent preparing 

Margie’s home for sale or for the time she spent dealing with oil and gas production 

income. The Moncecchis met their burden of establishing the damages caused by 

Rebecca’s breach of fiduciary duties; Rebecca did not meet her burden of contradicting 

that proof. We reverse that portion of the district court’s ruling which concludes that the 

Moncecchis failed to establish damages to the MJFRT, and we remand for an award of 

damages consistent with this opinion. 

V. Did the district court abuse its discretion when it awarded attorney fees against 

Rebecca for filing a frivolous claim?

[¶82] The Moncecchis argue that the district court abused its discretion when it did not 

award them their attorney fees for the claims they asserted against Rebecca and the 

MJFRT. Rebecca and the MJFRT counter that because the Moncecchis did not move for 

attorney fees and never asserted that their attorney fees were an element of the damages 

they sought, they cannot raise the issue now. The record belies this argument. In their 

First Amended Complaint, the Moncecchis asserted that Wyo. Stat. Ann. § 4-10-1004 

entitles them to attorney fees and they sought an award of such fees.

[¶83] The district court did award fees to the Moncecchis, finding that the counterclaim 

filed by Rebecca and the MJFRT which sought to collect on the Moncecchi loan was 

frivolous. On appeal, Rebecca and the MJFRT argue that the district court mistakenly 

took the filing of this counterclaim as vindictiveness on Rebecca’s part and that the 

subsequent award of attorney fees was unjustified because the claim was not frivolous. 

“The question of whether there is legal authority to award attorney fees is one of law, 

which we review de novo. The final attorney fee award is, however, reviewed for abuse 

of discretion.” Shriners Hosps. for Children, 2016 WY 51, ¶ 102, 373 P.3d at 417

(citations omitted).

[¶84] Wyoming follows the American rule regarding attorney fees, which provides that 

each party is responsible for his or her own attorney fees. Positive Progressions, 2015 

WY 138, ¶ 29, 360 P.3d at 1016; Thorkildsen v. Belden, 2012 WY 8, ¶ 10, 269 P.3d 421, 

424 (Wyo. 2012). “Attorney fees are recoverable under the American rule only where a 

 

15 Rebecca paid herself a total of $85,881 between 2012 and May 2014. See supra ¶ 62. The evidence 

revealed that a reasonable fee for the accounting services she provided to the trust would be between 

$1,560 and $2,160 per year. See supra ¶ 18. Taking the higher figure, a reasonable fee for those services 

for 2012, 2013, and through May 2014 when she stopped paying herself monthly (5/12 of 2014) totals 

$5,220 ($2,160 + $2,160 + 5/12 ($2,160) = $5,220). Thus, Rebecca overpaid herself in the amount of 

$85,881 - $5,220, which is $80,661.
31

contractual or statutory provision authorizes such recovery, or as a form of punitive 

damages when such damages can properly be awarded.” Positive Progressions, 2015 

WY 138, ¶ 29, 360 P.3d at 1016 (citing Alexander v. Meduna, 2002 WY 83, ¶ 49, 47 

P.3d 206, 220-21 (Wyo. 2002); Olds v. Hosford, 354 P.2d 947, 950 (Wyo. 1960)).16

[¶85] The Uniform Trust Code authorizes the payment of attorney fees and costs:

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’s fees, to 

any party, to be paid by another party or from the trust that is 

the subject of the controversy.

Wyo. Stat. Ann. § 4-10-1004 (LexisNexis 2015). The district court had the statutory 

authority to award attorney fees as it determined “justice and equity may require.” As we 

explained in Shriners Hosps. for Children, 2016 WY 51, ¶ 108, 373 P.3d at 418 (internal 

citations omitted):

Once it has been determined that authority exists to award 

fees and costs, a trial court has extremely broad discretion to 

 

16 W.R.C.P. 54 provides as follows:

Rule 54. Judgment; costs.

. . . .

(d) Costs; Attorney’s Fees.

. . . .

(2) Attorney’s Fees.

(A) When allowed by law, claims for attorney’s fees 

and related nontaxable expenses shall be made by motion 

unless the substantive law governing the action provides for 

the recovery of such fees as an element of damages to be 

proved at trial.

. . . .

(D) The court may establish special procedures by 

which issues relating to such fees may be resolved without 

extensive evidentiary hearings. . . .

We have recognized that “[p]ursuant to the language in paragraph (A), claims for attorney fees are to be

made by motion unless the substantive law governing the action provides for their recovery as an element 

of damages to be proved at trial.” Joe’s Concrete & Lumber, Inc. v. Concrete Works of Colorado, Inc., 

2011 WY 74, ¶ 17, 252 P.3d 445, 449 (Wyo. 2011). Accordingly, “where the parties’ contract provided 

that legal costs were part of the damages available in the event of its breach, . . . the attorney fees fell 

within the substantive claim exception to F.R.C.P. 54 and were to be proven at trial, not by post-trial 

motion” and where a contract “provides for the recovery of fees by the prevailing party, such fees are not 

an element of damages to be proved at trial, but . . . requir[e] a Rule 54(d)(2) motion.” Id.
32

rule on the amount of such an award. In reviewing the district 

court’s determination of the amount, if any, to award the 

Trustees in this case, we are mindful that we have held that 

we will not interfere with the trial court’s exercise of 

discretion in making such an award except upon proof that 

such discretion was gravely abused.

Courts interpreting provisions identical or similar to § 4-10-

1004 have observed that the provision’s use of the phrase 

“justice and equity” must guide a trial court’s discretion in 

determining whether to award fees from a trust and the 

amount of any fees awarded.

Id. (quoting Garwood v. Garwood, 2010 WY 91, ¶¶ 38-39, 233 P.3d 977, 986 (Wyo.

2010)). In Shriners, we held that where the district court determined that the 

beneficiaries’ actions against the trust and trustee were “taken with utter disregard” to the 

settlors’ intentions, the district court did not abuse its discretion in awarding attorney 

fees. Id. at ¶110, 373 P.3d at 419.

[¶86] The district court found:

64. The court later questioned Rebecca as to the 

reasons why the trust would counterclaim on a loan that is 

being repaid by the Moncecchis, and the following colloquy 

took place:

THE COURT: Can you tell me why you took action to 

essentially call the loan that the Moncecchis had when they 

were making payments on the loan?

THE WITNESS: I said that before. I said that the 

reason I did that was because they had brought a lawsuit 

against the trust.

THE COURT: Did you believe that they had violated 

the terms of the loan or that they were in default somehow by 

doing that?

THE WITNESS: No.

THE COURT: So it was simply because they sued 

you?
33

THE WITNESS: Um, they sued the trust. It wasn’t --

you know, it had nothing to do with me.

THE COURT: But they had been making payments to 

you?

THE WITNESS: They had been making payments 

monthly, yes, for -- they had started in 2012.

THE COURT: Prior to the lawsuit you had been 

receiving those payments?

THE WITNESS: Pardon me?

THE COURT: Prior to the lawsuit you had been 

receiving those payments, correct?

THE WITNESS: Yes.

65. Rebecca later conceded that the trust would be willing to 

drop its counterclaim against the Moncecchis seeking a 

judgment for the December 29, 2005 promissory note.

. . . .

131. Plaintiffs also established that Rebecca did not act in 

good faith in calling the Moncecchis’ loan and bringing a 

frivolous counterclaim against them for repayment of this 

same loan which was not, by Rebecca’s own admission, in 

default.

132. Rebecca admitted in her testimony that she called the 

Moncecchi loan simply because of the fact that Dino and Lori 

filed this lawsuit against her as trustee. (¶ 64 herein). 

Rebecca subsequently agreed to dismiss her counterclaim 

against the Moncecchis.

. . . .

Finally, the court finds that the counterclaim asserted 

by [Rebecca] seeking to collect the judgment on the 

Moncecchi loan was frivolous and entitles [Dino] to an award 

of attorney fees. Such award shall be limited to the 

reasonable amount of fees expended in defense of this 

counterclaim and shall be supported by affidavit.
34

[¶87] The district court’s observation that the counterclaim was “frivolous” and was 

brought in bad faith was not clearly erroneous. We therefore find no abuse of discretion 

in the district court’s determination that Rebecca and the MJFRT should be responsible 

for payment of the attorney fees incurred by the Moncecchis in defending against that 

claim, nor do we find an abuse of discretion in the district court’s failure to award 

additional attorney fees to the Moncecchis.

CONCLUSION

[¶88] The district court’s conclusion that Dino did not breach his duties to FHC by not 

soliciting bids from competitive property management companies or by appropriating 

business opportunities for Spartan was not clearly erroneous. Because Dino did not 

breach his duties to FHC, we do not address the question of whether the district court’s 

finding that FHC did not sustain damages was clearly erroneous. The removal of 

Rebecca as trustee of the MJFRT was not based on findings that were clearly erroneous. 

However, the district court incorrectly applied the burden of proof for establishing 

damages resulting from Rebecca’s breach of fiduciary duty. While the initial burden of 

showing harm was correctly placed upon the Moncecchis, once they established 

overpayment to Rebecca, the burden shifted to Rebecca to establish that her 

disbursements were proper. The Moncecchis met their burden and demonstrated 

damages to the trust in the amount of $82,082.59. Rebecca failed to produce evidence 

regarding the value of any offsetting disbursements. Finally, the district court did not 

abuse its discretion or err as a matter of law when it awarded the Moncecchis attorney 

fees. Accordingly, we affirm in part, reverse in part, and remand for proceedings 

consistent with this opinion.