1

Nos. 113,097

 113,282

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

THE ALAIN ELLIS LIVING TRUST;

HARVEY D. ELLIS, JR. and NADIA M. ELLIS,

Individually and as Natural Parents, 

Guardians, and Next Friends of Minor,

S.E.; and ROGER K. ELLIS,

Appellants,

v.

THE HARVEY D. ELLIS LIVING TRUST;

THE ESTATE OF HARVEY D. ELLIS;

EMPRISE BANK, a Kansas Banking Corporation;

and CATHLEEN A. GULLEDGE, 

Appellees,

KANSAS UNIVERSITY ENDOWMENT ASSN., et al.,

Intervenors/Appellees.

SYLLABUS BY THE COURT

1.

Generally, the decision to permit amended pleadings to assert a claim for punitive 

damages is discretionary and the standard of review on appeal is abuse of discretion. But 

when the district court denies a party's claim for punitive damages as a matter of law, an 

appellate court has unlimited review of the district court's legal conclusions. 

2.

In the absence of statutory authority in Kansas, a claim for punitive damages does 

not survive the death of the wrongdoer. 
2

3.

A claim for double damages under K.S.A. 58a-1002(a)(3) against a trustee who 

embezzles or knowingly converts trust property to the trustee's own use is punitive in 

nature and does not survive the death of a malfeasant trustee.

4.

K.S.A. 58a-1004 grants the district court the authority to award attorney fees in a 

judicial proceeding involving the administration of a trust as justice and equity may 

require. The district court may order that the attorney fees be paid by another party or 

from the trust that is the subject of the controversy.

Appeal from Sedgwick District Court; MARK A. VINING, judge. Opinion filed November 18,

2016. Affirmed. 

Sarah E. Warner and Stephen R. McAllister, of Thompson Ramsdell Qualseth & Warner, P.A., of 

Lawrence, for appellants.

Lee Thompson, of Thompson Law Firm, LLC, of Wichita, for appellees The Harvey D. Ellis 

Living Trust and The Estate of Harvey D. Ellis.

Curtis L. Tideman and Emily R. Davis, of Lathrop & Gage LLP, of Overland Park, for 

intervenors/appellees Kansas University Endowment Association, et al. 

Before MALONE, C.J., STANDRIDGE, J., and HEBERT, S.J.

MALONE, C.J.: This is an appeal from several orders of the district court in a case 

involving a breach of trust by a trustee who was deceased at the time of the litigation. The 

appeal presents three legal issues: (1) whether the district court erred in ruling that the 

double damage penalty of K.S.A. 58a-1002(a)(3) does not survive the death of a 

malfeasant trustee; (2) whether the district court erred in ruling that punitive damages 

may not be awarded against the assets of a deceased settlor's revocable trust; and (3) 
3

whether the district court abused its discretion in its award of attorney fees. For the 

reasons stated herein, we affirm the district court's judgment on each legal issue. 

FACTUAL AND PROCEDURAL BACKGROUND

This case presents a complex factual and procedural history. However, the 

essential facts relative to the issues we must decide on appeal are not complicated. Dr. 

Harvey D. Ellis (Dr. Ellis), a Wichita physician, and his wife, Alain, had two sons, 

Harvey D. Ellis, Jr. (Harvey, Jr.) and Roger K. Ellis. In 1992, Dr. Ellis and Alain 

executed two living trusts: The Alain Ellis Living Trust (Alain's Trust) and The Harvey 

D. Ellis Living Trust (Dr. Ellis' Trust). 

Alain died on March 18, 2007. At the time of Alain's death, the principal value of

her trust was $2,081,880.46. As surviving trustee of Alain's Trust, Dr. Ellis was entitled 

to all of the income from the trust during his life. Upon Dr. Ellis' death, the beneficiaries 

of Alain's Trust included Harvey, Jr., his daughter, S.E., and Roger. These beneficiaries 

were not aware of the existence of Alain's Trust at the time of Alain's death. 

While serving as trustee of Alain's Trust, Dr. Ellis improperly converted 

approximately $1.5 million from that trust and deposited the funds into his own trust. 

During the same time period, Dr. Ellis retained a new attorney, Cathleen Gulledge, to 

amend his trust indenture. Dr. Ellis amended his trust at least four times, with the 

eventual result of naming Emprise Bank as successor trustee and removing his heirs as 

beneficiaries of his trust. 

Dr. Ellis died on December 26, 2011. At the time of his death, the value of Dr. 

Ellis' Trust exceeded $10 million. The beneficiaries of the trust were charitable 

institutions, including The Kansas University Endowment Association, Dallas 

Theological Seminary, and The Navigators. 
4

In January 2012, shortly after Dr. Ellis' death, Harvey, Jr. and court-appointed 

special trustees for both trusts initiated an investigation into improper transfers between 

the trusts. In February 2013, Dr. Ellis' Trust reached an agreement with Alain's Trust to 

transfer $1,431,143.45 back to Alain's Trust in recognition of the fact that Dr. Ellis had 

improperly transferred at least that amount from Alain's Trust to his trust. 

On March 4, 2013, The Alain Ellis Living Trust, Harvey, Jr., independently and as 

next friend of his minor daughter, S.E., and Roger (plaintiffs) filed suit in the Sedgwick 

County District Court against numerous parties, including The Harvey D. Ellis Living 

Trust, Emprise Bank, and Cathleen Gulledge. The petition alleged that sometime between 

Alain's death in 2007 and Dr. Ellis' death in 2011, Dr. Ellis removed approximately 70 

percent of the assets from Alain's Trust and deposited the funds into his own trust. The 

petition alleged that Dr. Ellis accomplished these illegal transfers with the assistance of 

his attorney, Gulledge. The petition also alleged mismanagement of Alain's Trust and 

wrongdoing after the death of Dr. Ellis by Emprise Bank, the successor trustee of both 

Alain's Trust and Dr. Ellis' Trust. Sometime after the lawsuit was filed, the charitable 

beneficiaries of Dr. Ellis' Trust intervened in the case to protect their interests. 

During the pretrial phase of the litigation, the district court made two rulings

which are now the subject of this appeal. The first ruling was the district court's grant of 

summary judgment in favor of Dr. Ellis' estate and trust on the issue of whether plaintiffs 

were entitled to recover double damages against the assets of Dr. Ellis' estate and trust

pursuant to K.S.A. 58a-1002(a)(3). In reaching its decision, the district court concluded 

that K.S.A. 58a-1002(a)(3) is punitive in nature and that claims for punitive damages do 

not survive the death of a malfeasant trustee. The district court also found that the 

transfers made by Dr. Ellis from Alain's Trust to his own trust were not for "the trustee's

own use" as defined by the statute because Dr. Ellis did not spend the money for his own 

needs and the funds ultimately were bequeathed to charitable institutions.
5

The second ruling was the district court's partial denial of plaintiffs' motion to 

amend their petition to add a claim for punitive damages. The district court allowed a 

claim for punitive damages against Emprise Bank and Gulledge but denied a claim for 

punitive damages against Dr. Ellis' estate and trust. In denying the motion as to Dr. Ellis' 

estate and trust, the district court ruled that plaintiffs could not assert a claim for punitive 

damages against the estate or trust of a deceased wrongdoer.

The case went to trial, and the jury found that plaintiffs suffered damages as a 

result of Dr. Ellis' breach of trust and breach of fiduciary duty and that Gulledge had 

committed a breach of fiduciary duty in her role as successor trustee of Alain's Trust but 

that Emprise Bank was free of wrongdoing. The jury further determined that after 

crediting the defendants for the amount of money already returned to Alain's Trust, the 

plaintiffs were entitled to recover $126,820.94 from Dr. Ellis' estate. Despite finding 

wrongdoing by Gulledge, the jury declined to award punitive damages against her.

After trial, the district court considered all of the parties' requests for attorney fees. 

The district court granted the requests for attorney fees to all parties to be paid by Dr. 

Ellis' Trust, except that Harvey, Jr.'s, claim for attorney fees in the amount of $103,000 

was ordered to be paid by Alain's Trust. This appeal follows. 

Plaintiffs raise three claims on appeal: (1) the district court erred in ruling that the 

double damage penalty of K.S.A. 58a-1002(a)(3) does not survive the death of a 

malfeasant trustee; (2) the district court erred in ruling that punitive damages may not be 

awarded against the assets of a deceased settlor's revocable trust; and (3) the district court 

abused its discretion in its award of attorney fees. We will consider the second issue first. 

This particular case involves the issue of whether punitive damages may be awarded 

against the assets of a deceased settlor's revocable trust. However, the broader issue is 

whether a general claim for punitive damages survives the death of the wrongdoer. This 

specific issue has not been resolved by Kansas appellate courts. 
6

DOES A GENERAL CLAIM FOR PUNITIVE DAMAGES SURVIVE 

THE DEATH OF THE WRONGDOER?

In denying plaintiffs' motion to amend their petition to add a claim for punitive 

damages against Dr. Ellis' estate and trust, the district court relied upon its prior ruling 

that plaintiffs were not entitled to recover double damages pursuant to K.S.A. 58a1002(a)(3) against Dr. Ellis' estate and trust because the statutory provision is punitive in 

nature and claims for punitive damages do not survive the death of a malfeasant trustee. 

In reaching that prior decision, the district court had found that "Kansas Courts would 

likely follow Judge Crow's decision in Fehrenbacher v. Quackenbush, 759 F. Supp. 1516 

(D. Kan. 1991) holding that the majority rule that a claim for punitive damages does not 

survive the death of the wrongdoer should be followed." The district court considered its 

prior ruling as "the law of the case" and adopted that ruling in denying plaintiffs' motion 

to recover punitive damages. 

On appeal, plaintiffs argue that the district court erred when it denied their motion 

to amend their petition to add a claim for punitive damages against Dr. Ellis' estate and 

trust. Specifically, plaintiffs argue that the district court erred in finding that in Kansas a 

claim for punitive damages does not survive the death of the wrongdoer. Plaintiffs argue 

that the district court's rationale for not allowing punitive damages against Dr. Ellis' 

estate and trust is unsupported by Kansas law, contrary to the purpose of punitive and 

exemplary damages in Kansas, and bad public policy.

The Harvey D. Ellis Living Trust and The Estate of Harvey D. Ellis (defendants) 

argue that the district court did not err in denying plaintiffs' claim for punitive damages. 

Defendants argue that the district court correctly followed the majority rule that punitive 

damages do not survive the death of the wrongdoer. The intervenors also argue that 

plaintiffs' claim for punitive damages did not survive Dr. Ellis' death and that the purpose 

of punitive damages would not be served by punishing innocent charitable beneficiaries. 
7

Generally, the decision to permit amended pleadings to assert a claim for punitive 

damages is discretionary and the standard of review on appeal is abuse of discretion. 

Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). But 

here, the district court ruled as a matter of law that a claim for punitive damages does not 

survive the death of the wrongdoer. Our review of a district court's legal conclusion is de 

novo. In re Girard, 296 Kan. 372, 376, 294 P.3d 236 (2013). To the extent that resolution 

of this issue requires this court to engage in statutory interpretation, such review is also 

unlimited. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).

We begin by distinguishing the nature of punitive damages from an award for 

compensatory damages. An award of punitive damages is not designed to compensate the 

plaintiff for the tortious conduct; rather, the award is given in addition to compensatory 

damages and "relate[s] to the defendant's misconduct." Hayes Sight & Sound, Inc. v. 

ONEOK, Inc., 281 Kan. 1287, 1324, 136 P.3d 428 (2006). "Exemplary or punitive

damages go beyond actual or compensatory damages in that they are imposed, not 

because of any special merit in the plaintiff's case, but to punish the wrongdoer for his 

willful, malicious, oppressive or unlawful acts and to deter and restrain others from 

similar wrongdoings." Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, Syl. ¶ 4, 

507 P.2d 189 (1973).

The availability of punitive damages has long been recognized in Kansas. But in 

Smith v. Printup, 254 Kan. 315, 325, 866 P.2d 985 (1993), our Supreme Court 

determined that no special right to recover punitive damages existed at common law: 

"[P]unitive damages were not considered a remedy at common law, but merely incident 

to those causes of action in tort requesting compensatory damages. We do not regard 

punitive damages as compensatory in any way [citation omitted] and there is no right to 

punitive damages. . . . No separate right of action existed at common law for punitive 

damages. [Citation omitted.]" Printup, 254 Kan. at 325.
8

Our statutory scheme for the recovery of punitive and exemplary damages is now 

found at K.S.A. 60-3701 et seq. A plaintiff may recover punitive damages if the plaintiff 

proves by clear and convincing evidence that the defendant acted toward the plaintiff 

with willful conduct, wanton conduct, fraud, or malice. K.S.A. 60-3702(c). In any civil 

action in which exemplary or punitive damages are recoverable, the trier of fact 

determines whether such damages shall be allowed. If such damages are allowed, a 

separate proceeding is conducted by the court to determine the amount of such damages 

to be awarded. K.S.A. 60-3702(a). In no case shall exemplary or punitive damages be 

assessed against a principal or employer for the acts of an agent or employee unless the 

questioned conduct was authorized or ratified by a person expressly empowered to do so. 

K.S.A. 60-3702(d)(1). Likewise, exemplary or punitive damages shall not be assessed 

against a partnership or corporation for the acts of a partner or shareholder unless the

questioned conduct was authorized or ratified by a person expressly empowered to do so. 

K.S.A. 60-3702(d)(2). These provisions express a legislative intent in Kansas that 

punitive damages should be assessed only against the party who committed the wrong.

There is no doubt in this case that Dr. Ellis acted toward plaintiffs with willful 

conduct and fraud that would have supported a claim against him for punitive damages 

had he still been alive at the time of the litigation. However, the issue presented in this 

case is whether plaintiffs' claim for punitive damages survives the death of the 

wrongdoer. This is an issue of first impression in Kansas. 

Other states are split on the issue of whether a claim for punitive damages survives 

the death of the wrongdoer. See Comment, Adding Insult to Death: Why Punitive 

Damages Should Not Be Imposed Against a Deceased Tortfeasor's Estate in Ohio, 49 

Akron L. Rev. 553, 564-65 (2016). A majority of the states that have considered this 

issue have held that punitive damages do not survive the death of a wrongdoer. 49 Akron 

L. Rev. at 564. Fourteen states have enacted statutes prohibiting such claims, while 13

states and the District of Columbia have reached the result judicially. 49 Akron L. Rev. at 
9

564. A minority of jurisdictions, on the other hand, have determined that punitive 

damages can survive the death of a tortfeasor. 49 Akron L. Rev. at 564. Nine states have 

adopted the minority view through appellate court decisions while two states have done 

so by legislative action. 49 Akron L. Rev. at 564. 

Courts that have adopted the majority rule have reasoned that the dual purposes of 

imposing punitive damages are to punish wrongdoers and to deter others from 

committing similar bad acts. See, e.g., Jaramillo v. Providence Washington Ins. Co., 117 

N.M. 337, 345-46, 871 P.2d 1343 (1994). Such courts have concluded that these aims are 

not achieved by allowing recovery against the estate of a deceased wrongdoer. 117 N.M. 

at 346. Also, these courts have been concerned by the fact that when punitive damages 

are assessed postmortem, it is the deceased's innocent estate that suffers rather than the 

wrongdoer. See, e.g., Crabtree v. Estate of Crabtree, 837 N.E.2d 135, 139 (Ind. 2005).

Courts in minority jurisdictions have similarly reasoned that the primary purposes 

of punitive damages are to punish and deter. 49 Akron L. Rev. at 566-68. However, these 

courts have concluded that imposing damages against the estate of a deceased wrongdoer 

still has a deterrent effect. The Pennsylvania Supreme Court, for instance, concluded that 

"[t]he deterrent effect on the conduct of others is no more speculative in [cases where the 

wrongdoer is deceased] than in cases where the tortfeasor is alive." G.J.D. by G.J.D. v. 

Johnson, 552 Pa. 169, 176, 713 A.2d 1127 (1998). The court further concluded that 

imposing punitive damages on an estate does not necessarily punish the innocent 

beneficiaries because

"[t]he heirs of the decedent tortfeasor are in essentially the same financial position as if 

the tortfeasor were living at the time the damages were awarded. When punitive damages 

are awarded against a living tortfeasor, the award reduces the amount of the tortfeasor's 

assets, thus reducing the amount of funds available to the tortfeasor's family and 

ultimately reducing the amount of the estate." 552 Pa. at 176-77.
10

While Kansas appellate courts have not considered the survivability of punitive 

damages, the issue has been considered by a federal court interpreting and applying 

Kansas law. In Quackenbush, the district court determined that "Kansas courts would 

follow the majority rule and not allow an award of punitive damages against the estate of 

the wrongdoer." 759 F. Supp. at 1521. The court noted that the dual justifications for 

imposing punitive damages in Kansas are to punish wrongdoers and to deter others from 

committing similar bad acts. 759 F. Supp. at 1521. The court concluded that "[a]warding 

punitive damages would vicariously punish the heirs of the wrongdoer and would not 

serve to deter potential tortfeasors." 759 F. Supp. at 1521-22. 

Moreover, in Koch, our Supreme Court held that a "surety on an official bond can 

be required to respond only for actual or compensatory damages and is not liable for 

punitive or exemplary damages in the absence of an express statutory provision therefor." 

211 Kan. 397, Syl. ¶ 5. The court reasoned that the payment of exemplary or punitive 

damages should rest ultimately on the party who committed the wrong: 

"Where exemplary damages are awarded for purposes of punishment and deterrence, as is 

true in this state, public policy should require that payment rest ultimately as well as 

nominally on the party who committed the wrong; otherwise they would often serve no 

useful purpose. The objective to be attained in imposing punitive damages is to make the 

culprit feel the pecuniary punch, not his guiltless guarantor." 211 Kan. at 405.

Finally, in Printup, our Supreme Court addressed whether punitive damages are 

recoverable in a wrongful death action in Kansas. In that case, the court engaged in an 

extensive discussion of the nature of punitive damages, both as to their existence in the 

common law and in Kansas statutory law. The court initially determined that punitive 

damages are different from compensatory damages and that a claim for punitive damages 

is not a "cause of action" separate and distinct from a claim for compensatory damages. 

254 Kan. at 322. For that reason, the court determined that punitive damages were not 

considered a remedy at common law, but merely incident to those causes of action in tort 
11

requesting compensatory damages. 254 Kan. at 325. The court determined that a plaintiff 

does not have a right to recover punitive damages and because no such right exists, "the 

legislature could, without infringing upon a plaintiff's basic constitutional rights, abolish 

punitive damages." 254 Kan. at 326. The court concluded that in the absence of an 

express provision in the wrongful death statute authorizing punitive damages, punitive 

damages are not recoverable in a wrongful death action in Kansas. 254 Kan. at 335.

Our Supreme Court's decision in Printup addressed whether punitive damages are 

recoverable by the heirs of a deceased victim in a wrongful death action; the case herein 

presents the converse issue: whether a claim for punitive damages survives the death of 

the wrongdoer. We must turn to the Kansas statute on the survival of actions for guidance 

on how to resolve this issue. The Kansas survival statute, K.S.A. 60-1801, states: 

"In addition to the causes of action which survive at common law, causes of 

action for mesne profits, or for an injury to the person, or to real or personal estate, or for 

any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the 

action may be brought notwithstanding the death of the person entitled or liable to the 

same."

The Kansas survival statute does not expressly address the subject of punitive 

damages. The statute speaks in terms of the survival of "causes of action." As the 

defendants point out, our Supreme Court has expressly stated that a claim for punitive 

damages is not a "cause of action" separate and distinct from a claim for compensatory 

damages. Printup, 254 Kan. at 322. Moreover, the Printup court determined that punitive 

damages were not considered a remedy at common law. 254 Kan. at 325. The court made 

it clear that the recovery of punitive damages is governed by statute and that the 

legislature could abolish punitive damages if it saw fit to do so. 254 Kan. at 326.

We note that in some states, the minority rule that a claim for punitive damages 

can survive the death of a tortfeasor has been adopted by legislative action. For instance, 
12

Oklahoma has a survival statute similar to the Kansas survival statute. See Okla. Stat. 

Ann. tit. 12, § 1051 (West 2014). However, in addition to its survival statute, the 

Oklahoma Legislature has enacted a separate statute that expressly provides that a claim 

for punitive damages survives the death of a tortfeasor. See Okla. Stat. Ann. tit. 12, §

1053(C) (West 2014) ("In proper cases, as provided by Section 9.1 of Title 23 of the 

Oklahoma Statutes, punitive or exemplary damages may also be recovered against the 

person proximately causing the wrongful death or the person's representative if such 

person is deceased." [Emphasis added.]). 

Based on the law discussed herein, we conclude that in the absence of statutory 

authority in Kansas, a claim for punitive damages does not survive the death of the 

wrongdoer. We reach this conclusion based, in part, on the fact that this result is in line 

with the majority of courts that have addressed this issue. However, we emphasize that 

our conclusion is not based on public policy. Rather, it is based on the fact that the 

recovery of punitive damages was not a right at common law in Kansas and, although we 

now have a statutory scheme that allows for the recovery of punitive damages, there is 

nothing in that statutory scheme or in our survival statute, K.S.A. 60-1801, that expressly 

allows a claim for punitive damages to survive the death of the wrongdoer. 

The Kansas Legislature is the branch of government charged with the 

development of public policy. See O'Brien v. Leegin Creative Leather Products, Inc., 294 

Kan. 318, 348, 277 P.3d 1062 (2012). If the Kansas Legislature, like the Oklahoma 

Legislature, sees fit to allow a claim for punitive damages to survive the death of the 

wrongdoer, then it can enact a statute that clearly provides for such recovery. In the 

absence of such a statute, however, we find that no such recovery is allowed in Kansas. 

For these reasons, we conclude that the district court did not err in denying plaintiffs' 

claim for punitive damages against Dr. Ellis' estate and trust.
13

DOES THE DOUBLE DAMAGE PENALTY OF K.S.A. 58a-1002(a)(3) SURVIVE THE 

DEATH OF A MALFEASANT TRUSTEE?

Plaintiffs' claims in district court against Dr. Ellis' estate and trust included a claim 

for double damages pursuant to K.S.A. 58a-1002(a)(3). K.S.A. 58a-1002 defines the 

measure of damages for a breach of trust by the trustee and provides in part:

"(a) A trustee who commits a breach of trust is liable to the beneficiaries affected 

for the greater of:

(1) The amount required to restore the value of the trust property and trust 

distributions to what they would have been had the breach not occurred;

(2) the profit the trustee made by reason of the breach; or

(3) if the trustee embezzles or knowingly converts to the trustee's own use any of 

the personal property of the trust, the trustee shall be liable for double the value of the 

property so embezzled or converted."

Prior to trial, the district court granted a motion for partial summary judgment in 

favor of Dr. Ellis' estate and trust on the issue of whether plaintiffs were entitled to 

recover double damages pursuant to K.S.A. 58a-1002(a)(3). In reaching its decision, the 

district court concluded that K.S.A. 58a-1002(a)(3) is punitive in nature and that claims 

for punitive damages do not survive the death of a malfeasant trustee. The district court 

also found that the transfers made by Dr. Ellis from Alain's Trust to his own trust were 

not for "the trustee's own use" because Dr. Ellis did not spend the money for his own 

needs and the funds ultimately were bequeathed to charitable beneficiaries. 

On appeal, plaintiffs argue that the district court erred when it refused to allow 

them to pursue double damages against Dr. Ellis' estate and trust pursuant to K.S.A. 58a1002(a)(3). Plaintiffs argue that the district court's refusal to apply the statute's plain 

language, while instead injecting a judicially concocted "policy" exception, is contrary to 

Kansas law. Plaintiffs also argue that the district court erred in finding that the transfers 

made by Dr. Ellis from Alain's Trust to his own trust were not for his own use.
14

Defendants argue that the district court correctly ruled that plaintiffs were not 

entitled to recover double damages under K.S.A. 58a-1002(a)(3). Defendants argue that 

the double damage provision of the statute is punitive in nature and does not survive the 

death of the malfeasant trustee. Defendants also argue that the transfers made by Dr. Ellis 

from Alain's Trust to his own trust were not for his own use. The intervenors join in the 

arguments made by defendants.

On appeal of a motion for summary judgment where, as here, there are only 

questions of law to be resolved, this court reviews the district court's grant of summary 

judgment de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). Moreover, to 

the extent that resolution of this issue requires this court to engage in statutory 

interpretation, such review is also unlimited. Westar Energy Inc., 301 Kan. at 918. 

We will first address the district court's finding that the transfers made by Dr. Ellis 

from Alain's Trust to his own trust were not for his own use. K.S.A. 58a-1002(a)(3) 

authorizes double damages for a breach of trust if the trustee embezzles or knowingly 

converts personal property of the trust "to the trustee's own use." Defendants argue that

the district court correctly found that Dr. Ellis did not convert funds from Alain's Trust to 

his own use because he merely removed funds from her trust and put them in his own 

trust where they remained untouched at the time of his death and ultimately were 

bequeathed to charitable beneficiaries. 

Despite defendants' attempts to argue otherwise, the fact that Dr. Ellis did not 

spend the money he converted before he died does not mean that he did not take it for his 

own use. Kansas courts have long recognized that "[w]hen one applies money or property 

left in his custody to a use which he desires to make of it, it is applied to his own use." 

Bolton v. Souter, 19 Kan. App. 2d 384, 387, 872 P.2d 758 (1993) (quoting State v. 

Doolittle, 153 Kan. 608, 611, 113 P.2d 94 [1941]); see also State v. Pratt, 114 Kan. 660, 

Syl. ¶ 5, 220 Pac. 505 (1923). As the Pratt court succinctly and practically explained:
15

"The money was applied to the use of appellant, when he used it in the way he wanted to 

use it. Whether he chose to use it on his personal obligations, or give it to the bank of 

which he was president, or spend it on riotous living, he directed its disposition, and 

thereby applied it to his own use." 114 Kan. at 666.

Here, Dr. Ellis took property out of Alain's Trust and put it in his own trust. While 

his precise reason for doing so will never be known, it is clear that he took property that 

was meant to benefit plaintiffs and converted it to his own use. The fact that Dr. Ellis put 

the property he had taken into a trust that, after his death, passed to charitable institutions

does not insulate him from a finding that he converted the property first for his own use. 

Dr. Ellis' actions would have subjected him to the double damages of K.S.A. 58a1002(a)(3) had he been alive during this litigation.

This brings us to the district court's ruling that K.S.A. 58a-1002(a)(3) is punitive 

in nature and that claims for punitive damages do not survive the death of a malfeasant 

trustee. We must first consider the district court's premise that the double damage

provision of K.S.A. 58a-1002(a)(3) is punitive in nature as opposed to compensatory. As 

we previously have discussed, compensatory or actual damages are damages that "are 

awarded to make good or to replace loss caused by a wrong or injury; they are confined 

to compensating for injuries sustained." Koch, 211 Kan. at 401. Punitive damages, on the 

other hand, may be imposed in amounts in excess of what is necessary to fully 

compensate a party for losses or damages the party suffered. 211 Kan. at 401. These 

damages are awarded to punish the defendant for his or her purposeful bad acts, "not 

because of any special merit in the plaintiff's case." 211 Kan. 397, Syl. ¶ 4. 

The plain language of K.S.A. 58a-1002(a)(3) leads us to conclude that the double 

damage provision is punitive. K.S.A. 58a-1002(a)(1) and (2) apply to any trustee who 

commits a breach of trust. K.S.A. 58a-1002(a)(3), on the other hand, applies only when a 

trustee has embezzled or knowingly converted trust property. Additionally, while K.S.A. 
16

58a-1002(a)(1) and (2) grant damages in an amount that is meant to compensation trust 

beneficiaries for their loss, the double damages in K.S.A. 58a-1002(a)(3) are not awarded 

based on actual loss but rather result in an award that is greater than necessary to replace 

the loss caused by the trustee's conduct. 

Also, Kansas courts have determined that language similar to the double damage

provision of K.S.A. 58a-1002(a)(3) is more punitive in nature than remedial. In Koch, our 

Supreme Court construed K.S.A. 59-1704, which has language almost identical to the 

language in K.S.A. 58a-1002(a)(3), and found the provision to be punitive in nature. 211 

Kan. at 401-03. The court also reviewed law from other jurisdictions and determined that

most states considering similar statutes find them to be "penal in character, not 

compensatory." 211 Kan. at 403. Since Koch, Kansas courts have consistently construed 

the double damage remedy of the probate code as a civil penalty intended to punish the 

wrongdoer. See In re Conservatorship of Marcotte, 243 Kan. 190, 195, 756 P.2d 1091 

(1988); Bolton, 19 Kan. App. 2d at 388; see also English, The Kansas Uniform Trust 

Code, 51 U. Kan. L. Rev. 311, 342 (Feb. 2003) (describing double damage provision as 

an "additional penalty" against trustee who embezzles or unlawfully converts trust 

property).

In McCabe v. Duran, 39 Kan. App. 2d 450, 180 P.3d 1098 (2008), this court 

considered whether K.S.A. 58a-1002(a)(3) could be applied retroactively. There, the 

court concluded that K.S.A. 58a-1002(a)(3) could not be applied retroactively because it 

is a penal statute and imposing a penalty on actions that were not subject to such penalty 

at the time they were taken would violate the defendant's due process rights. 39 Kan. 

App. 2d at 452-54. Plaintiffs point out that the issue in McCabe involved a claim against 

a trustee who already had passed away and argue that the case supports their claim that 

the double damage provision survives the death of the trustee. However, as defendants 

point out, the issue of whether the penalty provision of K.S.A. 58a-1002(a)(3) survived 

the trustee's death was not discussed, decided, or even referenced in the opinion. 
17

In sum, the major premise of the district court's ruling, that the double damage 

provision of K.S.A. 58a-1002(a)(3) is penal in nature rather than compensatory, is in 

accord with every applicable Kansas precedent. Based on this premise, we agree with the 

district court's conclusion that plaintiffs' claim for double damages under K.S.A. 58a1002(a)(3) does not survive the death of a malfeasant trustee. As discussed earlier in this 

opinion, this conclusion is not based on public policy; rather, it is based on the absence of

any statutory authority that a claim for double damages against a trustee who embezzles 

or knowingly converts trust property to the trustee's own use should survive the death of 

the trustee. If our legislature wants to accomplish this result, it could easily amend K.S.A. 

58a-1002(a)(3) to allow for the recovery of double damages against the trustee or the 

trustee's estate. Accordingly, we conclude that the district court did not err in granting 

summary judgment in favor of Dr. Ellis' estate and trust on the issue of double damages. 

DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ITS AWARD OF ATTORNEY FEES?

Finally, plaintiffs argue that the district court erred when it ordered a portion of 

their claimed attorney fees to be paid by Alain's Trust. K.S.A. 58a-1004 grants the district 

court the authority to award attorney fees in a "judicial proceeding involving the 

administration of a trust . . . as justice and equity may require." The district court may 

order that the attorney fees be paid "by another party or from the trust that is the subject 

of the controversy." K.S.A. 58a-1004. 

Where a statute vests a district court with the authority to award attorney fees as 

the district court sees fit, such award is reviewed for an abuse of discretion. Rinehart v. 

Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). A district court abuses 

its discretion if (1) it acts arbitrarily, fancifully, or unreasonably; (2) its decision is based 

on an error of law; or (3) its decision is based on an error of fact. Northern Natural Gas 

Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
18

Here, the district court ordered Dr. Ellis' Trust to pay all of the attorney fees 

accumulated by plaintiffs' retained attorneys. In addition to fees for retained attorneys, 

Harvey, Jr., an attorney himself, requested $103,000 in attorney fees for time he spent 

investigating Dr. Ellis' embezzlement. The district court granted Harvey, Jr.'s, request for 

attorney fees but ordered that the fees be paid by Alain's Trust. Plaintiffs contend that the 

district court should have ordered Harvey, Jr.'s, fees to be paid by Dr. Ellis' Trust.

K.S.A. 58a-1004 allows the district court to award costs to any party to be paid 

either by another party or with funds from the trust that is the subject of the underlying 

litigation. Where beneficiaries of a trust incur costs in an action that benefits the trust, 

beneficiaries are permitted to be reimbursed for such costs out of trust funds. See 

Jennings v. Murdock, 220 Kan. 182, 215, 553 P.2d 846 (1976); Moore v. Adkins, 2 Kan. 

App. 2d 139, 151, 576 P.2d 245 (1978). That is exactly what happened here. The district 

court determined that the expenses Harvey, Jr., incurred during his early work 

investigating the embezzlement of funds from Alain's Trust should be reimbursed by that

trust because his work benefited the beneficiaries of that trust. Although the district court 

could have ordered that Harvey, Jr.'s, attorney fees be paid by Dr. Ellis' Trust, it did not 

abuse its discretion when it ordered Alain's Trust to pay these fees.

Affirmed.