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IN RE MASEK FAMILY TRUST

Cite as 312 Neb. 94

In re Charles and Patricia Masek Family Trust.

Barry Masek, individually and as Administrator 

of the Estate of Patricia Masek, deceased, 

appellee, v. Mark Masek and Dianne 

Yahiro, appellants.

___ N.W.2d ___

Filed July 29, 2022. No. S-21-552.

1. Trusts: Equity: Appeal and Error. Trust administration matters are 

reviewed for error appearing on the record, absent an equity question or 

question of law, which are instead reviewed de novo.

2. Judgments: Appeal and Error. For errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision made by the court 

below.

4. Trusts: Liability. A beneficiary is not personally liable to a trust unless 

an exception applies. One such exception includes instances where the 

trust suffered a loss resulting from a breach of trust in which the beneficiary participated.

5. Trusts. A beneficiary participates in a breach of trust if the beneficiary 

performs, or joins in performing, an act the beneficiary knows is a 

breach. Mere knowledge of, or consent to, the breach, without more, is 

insufficient to constitute participation.

6. Trusts: Liability. A person is a de facto trustee, and can be liable for 

breach, where the person has (1) assumed the office of trustee under a 

color of right or title and (2) exercised the duties of the office.

Appeal from the County Court for Gage County: Steven B. 

Timm and Linda A. Bauer, Judges. Reversed and remanded 

for further proceedings.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/29/2022 08:06 AM CDT
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IN RE MASEK FAMILY TRUST

Cite as 312 Neb. 94

Matt Catlett, of Law Office of Matt Catlett, for appellants.

Douglas W. Ruge II for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

In October 2020, the Gage County Court found that Mark 

Masek and Dianne Yahiro (Dianne), appellants, had committed breach of trust and had taken trust assets, and it ordered 

damages against appellants by default judgment. Appellants 

filed a special appearance and motion for new trial on the 

issues of lack of personal jurisdiction, insufficiency of proc

ess, and insufficiency of service of process under Neb. Rev. 

Stat. § 25-516.01 (Cum. Supp. 2020). Appellants additionally 

alleged the eight enumerated grounds for new trial as provided 

by Neb. Rev. Stat. § 25-1142 (Reissue 2016).

On June 7, 2021, the county court denied appellants’ motion, 

finding that proper notice had been given to them; that the 

court had personal jurisdiction over them; and that, in the alternative, appellants had otherwise waived the right to challenge 

personal jurisdiction by requesting a new trial. The county 

court also found that appellants did not establish any statutory 

grounds for a new trial under § 25-1142. Appellants filed an 

appeal, at which time we moved this case to our docket.

Because the county court did not explain its basis for finding 

appellants liable for breach of trust, we reverse, and remand for 

further proceedings.

FACTUAL BACKGROUND

Charles and Patricia Masek created the Charles and Patricia 

Masek Family Trust in 1993 (Family Trust). The trust named 

Charles and Patricia as initial cotrustees and provided that 

upon death, resignation, or disability of either grantor, the 

remaining grantor would become the sole trustee. The Family 
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Trust also provided that upon the death of either grantor, the 

trust would become irrevocable and any assets placed in the 

trust would be divided between a marital share and a family share. Upon the death of both grantors, the family share 

would consist of all assets remaining in the trust estate. The 

Family Trust declared that Charles and Patricia had five living 

children: Barry Masek, Mark, Dianne, Colleen Masek (now 

known as Colleen Eames), and Richard Masek. The Family 

Trust named three of the living children—Barry, Mark, and 

Dianne—as successor cotrustees.

Upon Charles’ death in 2000, Patricia became the sole 

trustee, the Family Trust became irrevocable, and the property within the trust estate was divided into the marital and 

family shares. Patricia registered the Family Trust in Gage 

County, Nebraska, in November 2000 and petitioned the court 

to amend the Family Trust to provide that all five of her children be cotrustees. All five children signed their approval of 

this amendment, which was approved by the court in December 

2000. That same month, Patricia granted an interest in several 

hundred acres of farmland to her children. The Masek children 

then formed the Masek Children’s Trust (Children’s Trust) and 

placed the land into the Children’s Trust. The Children’s Trust 

specified that in the event the Family Trust was depleted prior 

to Patricia’s death, the trustee of the Children’s Trust could 

draw upon trust assets to care for and benefit Patricia.

Around 2014, appellants moved Patricia and Richard, who 

had special needs and could not live on his own, to Illinois to 

live with Dianne. By this time, Patricia had reportedly been 

diagnosed with progressive dementia and Alzheimer’s disease. 

According to siblings Barry and Colleen, appellants moved 

Patricia and Richard without first informing Barry and Colleen 

of the move.

In October 2015, Colleen filed a petition to remove Patricia 

as trustee of the Family Trust, alleging that Patricia was unable 

to administer the trust effectively. Colleen further asked the 

court to remove all successor cotrustees and appoint a qualified 
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corporate fiduciary as successor trustee. Colleen stated that she 

believed it would be impossible for all currently named successor cotrustees to agree due to a separate and then-pending 

action regarding the Children’s Trust.

In May 2016, the court found that the interests of justice 

did not require court intervention; that the terms of the trust 

prevailed, which required certain procedures be done to find 

Patricia unfit to be trustee; and that such terms had not been 

fulfilled. As a result, Patricia was not removed as trustee.

Within a year after Patricia and Richard were moved to 

Illinois, the relationship between Barry and Colleen on one 

hand and appellants on the other, which had not been harmonious to begin with, further deteriorated. Barry and Colleen 

claim they were barred from communicating with Patricia 

and Richard, despite their best efforts, for a period of almost 

5 years. Colleen filed an action for guardianship in Illinois to 

locate Patricia. Despite an Illinois court order demanding that 

Patricia be produced, Patricia was not produced and the court 

issued a warrant to locate Patricia.

In December 2019, Barry and Colleen filed a joint petition for accounting in Gage County, alleging that they had not 

received an accounting from Patricia as trustee since January 

2014. Hearings regarding this petition were scheduled for 

March 12, 2020. A copy of this petition and the notice of 

hearing was emailed to Brian Koerwitz as counsel for Dianne, 

Mark, and Richard and to Christopher Bartling as counsel 

for Patricia. Koerwitz filed a motion to withdraw as counsel, 

which was granted on January 13.

On February 28, 2020, Bartling filed a motion to withdraw 

as counsel for Patricia. Bartling stated that he had attempted to 

contact Patricia without success; that he had not directly communicated with Patricia since 2016; and that Mark, as durable 

power of attorney for Patricia, had requested Bartling withdraw 

as counsel.

In early March 2020, Barry was contacted by an Illinois 

police department. Richard had died on March 1, and Dianne 
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and her husband had brought Richard’s body to a crematory 

so that Patricia could give consent to cremate Richard. The 

crematory contacted the police, who then contacted Barry 

and Colleen.

On March 6, 2020, an Illinois circuit court issued an order in 

which it found an emergency basis existed for the appointment 

of a temporary guardian for the estate and person of Patricia 

for reasons including, but not limited to, concerns expressed by 

a detective about Patricia’s safety, Dianne’s failure to appear or 

produce Patricia despite court order, Dianne’s failure to present 

Patricia for a visit with her guardian ad litem, and the fact that 

Patricia was hospitalized with signs of bruising. The Illinois 

court then named Barry as temporary guardian for a duration 

of 60 days, which would expire May 5.

In her response to Bartling’s motion to withdraw as counsel, Colleen notified the Gage County Court of these Illinois 

proceedings. Colleen alleged that Mark’s power of attorney for 

Patricia had been suspended by the Illinois court.

At the March 12, 2020, hearing on Colleen’s petition, 

Bartling informed the court that he had been unable to contact Patricia by any means. Colleen’s counsel responded that 

Bartling should not be allowed to withdraw at that time, due to 

the ongoing guardianship proceedings in Illinois, and provided 

further detail to the court of recent events. The county court 

took the matter under advisement and set a further hearing on 

the matter of withdrawal for May 18.

Also during this March 12, 2020, hearing, Benjamin Murray, 

counsel for appellants in litigation concerning the Children’s 

Trust, was present in the courtroom and was addressed by the 

court. When addressed, Murray specified that he was “not on 

the [F]amily [T]rust,” and only “on the [C]hildren’s [T]rust.” A 

separate hearing concerning the Children’s Trust began immediately after the conclusion of this hearing.

On May 11, 2020, Barry filed a motion to amend the pleadings. On May 18, Bartling was granted withdrawal after the 

court noted that a guardian had been appointed for Patricia, 
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apparently referring to the Illinois proceedings. However, documents in the record indicate that Patricia did not have a guardian as of May 5.

In June 2020, the court entered a proposed order in which 

it granted Barry’s motion to amend. Barry then filed on June 

24 the “Barry M. Masek Amended Petition for Removal 

of Trustee(s), Surcharge/Damages for Injunctive Relief, 

Declaring Amendments Void and Accounting.” This amended 

petition alleged that appellants had blocked access to Patricia 

and the records of the Family Trust; had amended the Family 

Trust and appointed one or more of themselves as trustee; and 

had utilized trust assets for themselves, misappropriated trust 

assets, or disposed of assets of the Family Trust contrary to 

its terms.

The amended petition prayed for damages and attorney 

fees pursuant to the Nebraska Uniform Trust Code (NUTC); 

removal of appellants as trustees; an accounting of the trust’s 

activities and a surcharge judgment against appellants for 

any misappropriations; an order declaring null and void any 

amendments to the Family Trust since 2010, including any 

appointment of trustees other than Patricia; imposition of a 

lien or constructive trust on the assets of the Family Trust; 

and injunctive relief against appellants to prevent them from 

acting as trustees, managing trust affairs, or misappropriating 

trust assets.

On the same day the amended petition was filed, Barry filed 

a praecipe for service requesting the court to issue a summons 

for personal or residential service on Dianne at her residence in 

Illinois and on Mark at his residence in California. The record 

does not indicate whether the summonses were issued.

On July 2, 2020, the same Illinois court that previously 

named Barry as temporary guardian for Patricia entered a new 

order appointing Barry as a perpetual plenary guardian and 

conservator for Patricia.

An evidentiary hearing regarding the Family Trust was 

scheduled for September 21, 2020. A notice of this hearing 
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was mailed to Mark at his California address and emailed to 

Murray. Douglas Ruge, counsel for Barry, filed an affidavit 

of service with the court wherein he affirmed that appellants 

were mailed a copy of the amended petition at their residential 

addresses by certified and first-class postage prepaid mail on 

August 11. Ruge affirmed that these addresses were recorded 

in court documents and had been verified as appellants’ residential addresses. Ruge also affirmed that Murray was emailed 

a copy which was not returned as undeliverable.

Mail was addressed to Dianne at “4539 Lee Avenue” instead 

of “4549 Lee Avenue.” Though the correct address was written 

over the incorrect address in an attempt to resolve the error, 

the correction made the final number illegible. This mail was 

returned as “Not Deliverable as Addressed.” Other mail sent 

to Dianne, properly addressed to “4549 Lee Avenue,” was not 

returned as undeliverable. Certified mail addressed to Mark 

at “4856 Bernal Ave” included a return receipt, which was 

returned unsigned, but otherwise did not indicate that the mailing was undeliverable. “USPS Tracking” for this certified mail 

shows that the item was delivered to this address and left with 

an individual.

At the evidentiary hearing on September 21, 2020, Barry and 

Colleen were present with their attorneys. An attorney, who 

was the trustee of the Children’s Trust, had been appointed as 

guardian ad litem for Patricia and was present at the hearing 

in that capacity. Appellants were not present, nor were they 

represented by counsel.

Ruge submitted evidence showing that he had mailed notice 

to all parties and that notice of this hearing was given to 

Murray. Specifically, Ruge provided email correspondence 

between Murray and himself regarding Patricia, where Ruge 

inquired about the Family Trust proceedings and Murray stated, 

“I am not representing [appellants] in that case and I do not 

know if they intend to retain counsel. I’ll shoot them an email 

and see if I can get you an answer.”
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Barry then testified, producing statements and other financial documents detailing how assets held by the Family Trust 

had been depleted between 2015 and 2021. He explained that 

the assets were withdrawn either by Patricia for the benefit of 

appellants or by appellants on behalf of Patricia as her power 

of attorney. Barry also testified about the circumstances of 

Patricia’s move to live with Dianne, about Richard’s death 

and the guardianship proceedings that had occurred in Illinois 

shortly thereafter, and about his experience as a certified public 

accountant and how that experience helped him collect information and trace trust assets after they were withdrawn from a 

trust account.

After this evidentiary hearing, the county court filed an 

order on October 23, 2020. An order nunc pro tunc was entered 

on October 29, superseding and replacing the original order 

while retaining the original effective date of October 23. A 

comparison of the original and nunc pro tunc orders indicates 

that the body of the order was unchanged, but that the certificate of service removed Richard as a party receiving notice. As 

noted elsewhere, Richard had died months earlier.

In its October 2020 order, the court found that proper 

notice was given to the parties; that the court had personal 

and subject matter jurisdiction over the parties and the case; 

that appellants began exercising control over the Family Trust 

accounts in 2015; and that large amounts of money totaling 

$1,276,858 were taken out of these accounts beginning in 

2015, including $7,000 monthly payments to Dianne, payments for the benefit of Dianne’s children that other grandchildren did not receive, and wire transfers to Panama where 

Dianne had been traveling. By the time of the hearing, the 

assets of the Family Trust had been depleted and Patricia’s 

only resources to support herself were her Social Security and 

teachers’ retirement payments.

The court then granted the amended petition with respect 

to the surcharge and damages causes of action, entering judgment against appellants jointly and severally for $1,276,858 
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plus costs in favor of Barry as guardian and conservator for 

Patricia, as well as trustee and beneficiary of the Family Trust. 

The court also awarded attorney fees to Barry in the amount 

of $10,306.25. The court denied relief for the other causes of 

action alleged in the amended petition, finding that the accounting cause of action was covered by the ruling for the damages 

and surcharge actions, there was no evidence of improper 

substitution of trustees, and injunctive relief was unnecessary 

because there was no evidence that the Family Trust had been 

improperly amended.

Four days after entry of this order, on November 2, 2020, 

appellants filed a motion requesting a new trial for lack of personal jurisdiction, insufficiency of process, and insufficiency 

of service of process. The motion then listed eight enumerated grounds for a new trial as set forth in § 25-1142, without 

specifically alleging facts under any of those subsections. 

This motion was filed by Murray, which signified his first 

official appearance in the Family Trust proceedings as counsel 

for appellants.

In April 2021, Barry filed an application for revivor of judgment, in which he notified the court that Patricia had died and 

that he had been named administrator of Patricia’s estate. Barry 

asked that the court revive the October judgment in Barry’s 

name as administrator of Patricia’s estate. The court thereafter 

granted Barry’s request and revived the judgment “in [Barry’s] 

name as Administrator and Representative for the Estate of 

Patricia Masek, deceased.”

In June 2021, the court denied appellants’ motion. The court 

found that in regard to the service issues, all parties had been 

subject to the jurisdiction of the court for the past 20 years 

pursuant to the registration of the Family Trust, characterizing appellants’ arguments regarding notice and jurisdiction 

as “disingenuous.” The court also found it was apparent from 

the affidavits of service that appellants had actual notice of the 

trial and that Murray had received notice and had represented 

appellants in the concurrent Children’s Trust litigation. The 
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court concluded that notice and jurisdiction were proper but, 

alternatively, concluded that jurisdiction had been waived by 

appellants’ filing a motion and that appellants had failed to 

establish statutory grounds for granting such new trial.

Appellants appealed from the denial of their motion, and we 

moved this case to our docket.

ASSIGNMENTS OF ERROR

Appellants assign that the county court (1) lacked subject 

matter jurisdiction because Patricia was an indispensable party 

but was not served and did not voluntarily appear; (2) erred in 

denying their joint “Special Appearance and Motion for New 

Trial” because process and service of process were insufficient; (3) erred in denying their joint “Special Appearance and 

Motion for New Trial” because the county court lacked personal jurisdiction over them; (4) lacked subject matter jurisdiction over the amended petition because Colleen did not sign it; 

(5) assuming the amended petition was properly characterized 

as one brought under the NUTC to remedy a breach of trust by 

appellants, issued a judgment contrary to its own findings; (6) 

erred in entering judgment in favor of “Barry . . . as Guardian 

and Conservator for Patricia . . . , Trustee and Beneficiary of 

the Charles and Patricia Masek Family Trust”; and (7) entered 

a judgment which was not sustained by the evidence.

STANDARD OF REVIEW

[1,2] Trust administration matters are reviewed for error 

appearing on the record, absent an equity question or question 

of law, which are instead reviewed de novo. 1 For errors appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable. 2

1 See, In re William Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 

807 (2021); In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).

2 See In re William Zutavern Revocable Trust, supra note 1.
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[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 3

ANALYSIS

Jurisdiction, Notice, and Governing Rules

On appeal, appellants contend that (1) Patricia was not 

served with proper notice of the proceedings and, as an indispensable party to this action as trustee, the county court was 

deprived of subject matter jurisdiction; (2) their motion should 

be treated as a motion to vacate a default judgment and that 

the amended petition should be treated as a civil complaint for 

conversion of trust property, such that the rules of civil procedure would govern in place of the NUTC; (3) the county court 

lacked personal jurisdiction over appellants because process 

and service of process were insufficient and because minimum 

contacts did not exist to warrant application of Nebraska’s 

long-arm statute; (4) the county court lacked subject matter 

jurisdiction because Colleen did not sign the amended petition 

and because the Family Trust is not valid where the documents 

which created and amended the trust do not include a description of its subject matter or a method to ascertain its subject 

matter; (5) the county court erred in entering judgment in favor 

of Barry as guardian and conservator of Patricia because the 

trust itself would be entitled to judgment; and (6) the county 

court’s judgment was not sustained by the evidence because 

the evidence “concerned only Patricia’s personal funds, not 

Trust funds.” 4

We have considered each of these issues and find each is 

without merit. However, we find merit to appellants’ fifth 

assigned error, that the county court issued a judgment contrary 

to its own findings, and now turn to that argument.

3 Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).

4 Brief for appellants at 38.
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Findings in Support of Judgment

Appellants contend that the county court’s judgment was 

contrary to that court’s own findings because the court found 

that Barry had met his burden of proof for the claims regarding damages and surcharge for breach of trust, but also found 

“[t]here was no evidence presented that there had been any 

improper substitution of trustees” or that “the Trust had been 

improperly amended,” indicating that appellants were not trustees. Because appellants were not trustees, they assert they cannot be held liable for breach of trust.

Under the NUTC, breach of trust is defined as a “violation by a trustee of a duty the trustee owes to a beneficiary,” 5

and claims can be brought against that trustee for any actions 

constituting a breach. 6 The NUTC does not, however, indicate 

whether a beneficiary can be held liable for breach of trust.

[4,5] According to the Restatement (Third) of Trusts, which 

has been previously utilized to supplement or interpret the 

NUTC, 7 a beneficiary is not personally liable to a trust unless 

an exception applies. 8 One such exception includes instances 

where “the trust suffered a loss resulting from a breach of 

trust in which the beneficiary participated.” 9 Commentary further provides:

A beneficiary owes a duty to the other beneficiaries not 

to participate in a breach of trust. If a beneficiary participates in a breach of trust, causing a loss to the trust . . . , 

the beneficiary is personally liable to the trust for all or 

part of the loss, as appropriate. . . .

Certainly, the beneficiary participates in a breach of 

trust if the beneficiary performs, or joins in performing, 

5 Neb. Rev. Stat. § 30-3890 (Reissue 2016).

6 See, id.; Neb. Rev. Stat. § 30-3891 (Reissue 2016).

7 See, In re William Zutavern Revocable Trust, supra note 1; In re Trust of 

Shire, supra note 1.

8 See Restatement (Third) of Trusts § 104 (2012).

9 Id. at 90.
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an act the beneficiary knows is a breach. . . . For example, 

a beneficiary has participated in a breach of trust if the 

beneficiary induced the misconduct knowing that it would 

or might be a breach of trust. However, mere knowledge 

of, or consent to, the breach, without more, is insufficient 

to constitute participation (though the beneficiary may be 

liable under the law of unjust enrichment for any resulting 

benefit received . . .). 10

While the NUTC does not exclude beneficiary liability, 

neither does it provide a framework for analyzing beneficiary 

liability; hence, we find the Restatement’s analytical framework instructive for purposes of examining appellants’ actions 

in terms of the purported breaches of trust. Under this framework, it is possible that appellants committed breach of trust 

by participating in a breach by Patricia or, more specifically, 

by inducing Patricia to commit breach while she was in their 

care and control.

[6] Alternatively, Barry contends that appellants acted as de 

facto trustees when they directed Patricia to withdraw funds 

from the trust for their benefit. The NUTC does not define 

de facto trustees, and we have not previously recognized de 

facto trustees as liable for breach of trust. However, courts in 

other jurisdictions have considered de facto trustee status in 

both corporate and trust law contexts and have concluded that 

a person is a de facto trustee, and can be liable for breach, 

where the person has (1) assumed the office of trustee under 

a color of right or title and (2) exercised the duties of the 

office. 11 While these factors do not appear to apply to the 

claims raised herein as none of Barry’s arguments assert that 

appellants assumed an office under color of right or title, it is 

10 Id., comment f. at 91.

11 See, In re Bankers Trust, 403 F.2d 16 (7th Cir. 1968); Haynes v. 

Transamerica Corp., No. 16-cv-02934-KLM, 2018 WL 487841 (D. Colo. 

Jan. 18, 2018); Rose v. Rose, 2013 Ark. App. 256, 427 S.W.3d 698 (2013); 

In re Irrevocable Trust of McKean, 144 Wash. App. 333, 183 P.3d 317 

(2008).
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possible that the county court entered judgment against appellants under this theory.

Ultimately, the county court found that appellants did not 

improperly substitute trustees or improperly amend the trust, 

and yet, it also found appellants liable for the damages and surcharge claims for breach of trust. While it is possible for this 

court to speculate as to which theories of liability may apply, 

it is not possible for this court to determine with clarity which 

theory was utilized by the county court below. For that reason, 

we cannot conclude whether the decision is or is not sustained 

by sufficient evidence such that a new trial would be warranted 

under § 25-1142(6). What we can determine is that the findings 

of the county court are in conflict with the relief granted and 

do not conform to the law.

Accordingly, we reverse, and remand to the county court for 

further proceedings consistent with this opinion, including, but 

not limited to, conducting a hearing wherein the parties would 

have the opportunity to present evidence or arguments concerning appellants’ liability to the trust either as de facto trustees or 

by participating in a breach of trust committed by Patricia, or 

by inducing Patricia to commit breach while she was in their 

care and control.

CONCLUSION

While a majority of appellants’ claims are without merit, we 

conclude that their argument regarding the county court’s order 

being contrary to its own findings may have merit. However, 

it is not possible for this court to make such determination 

based on the record because of the conflict between the county 

court’s findings and the relief granted. We therefore reverse, 

and remand to the county court for further proceedings con

sistent with this opinion.

Reversed and remanded for 

further proceedings.