IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE TRUST OF FAILLA

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE TRUST OF VIRGINIA L. FAILLA, DECEASED.

ROXANN HALEY, APPELLANT,

V.

SALLY J. HYTREK, SPECIAL TRUSTEE, APPELLEE, AND STEVE FAILLA, DAN FAILLA,

AND VICKIE COONROD, INTERVENORS-APPELLEES.

IN RE ESTATE OF VIRGINIA L. FAILLA, DECEASED.

ROXANN HALEY, APPELLANT,

V.

SALLY J. HYTREK, SPECIAL ADMINISTRATOR, APPELLEE, AND STEVE FAILLA, DAN FAILLA,

AND VICKIE COONROD, INTERVENORS-APPELLEES.

Filed November 1, 2016. Nos. A-15-687, A-15-688.

Appeal from the County Court for Douglas County: JOSEPH P. CANIGLIA, Judge. Affirmed 

in part, and in part reversed and remanded with directions.

Kathryn J. Derr for appellant.

Sally J. Hytrek, pro se.

John A. Svoboda and William J. Lindsey, of Gross & Welch, P.C., L.L.O., for 

intervenors-appellees.

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MOORE, Chief Judge, and INBODY and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Roxann Haley appeals from the decision of the county court for Douglas County finding 

that she breached her fiduciary duty as attorney in fact for her mother, Virginia L. Failla, and 

entering judgment against her and in favor of the estate for $296,356.42. The judgment included 

$196,473.65 for excessive room and board; $578.80 for interest charges on a late payment when 

Virginia’s home went into foreclosure; $40,838.31 for special administrator fees; and $58,465.66 

in attorney fees incurred by Roxann’s siblings who intervened in the proceedings. We affirm the 

judgment for $196,473.65 and $578.80, reverse and remand for modification the award for special 

administrator fees, and reverse and remand to vacate the award for the intervenors’ attorney fees.

II. BACKGROUND

Virginia died on February 20, 2012. She was the mother of Roxann, Vickie Coonrod, Dan 

Failla, and Steve Failla. On September 5, Roxann filed a trust action (case No. PR 12-1193 in 

county court, case No. A-15-687 on appeal), seeking to remove Dan as a cotrustee of the Virginia 

L. Failla Revocable Trust, claiming that he was frustrating her ability, as the other cotrustee, to 

perform the necessary fiduciary duties associated with the trust. On September 17, Dan filed an 

estate action (case No. PR 12-1247 in county court, case No. A-15-688 on appeal), claiming that 

a special administrator was necessary “to pursue a claim for recovery of funds from [Roxann] 

when she was acting under a Power of Attorney signed by [Virginia].” Dan’s petition alleged that 

Roxann expended more than $416,000 of Virginia’s funds during a 33-month period from May 

2009 through February 2012.

In two separate orders filed on January 8, 2013, Sally J. Hytrek was appointed by the court 

as special administrator of Virginia’s estate and special trustee of her trust. The order from the 

estate case appointing Hytrek as special administrator directed Hytrek to investigate any 

expenditure of Virginia’s funds from May 1, 2009, through the date of the order, and further 

authorized Hytrek to commence any litigation that may be necessary to recover any funds for the 

benefit of the estate. The order from the trust case appointing Hytrek as special trustee authorized 

Hytrek to sell any and all assets of the trust, including any real estate.

On April 25, 2013, Hytrek filed an identical report in both cases indicating “that hundreds 

of thousands of dollars are missing from the estate during the time the Power of Attorney, Roxann 

Haley[,] had control of the estate.” Hytrek noted other missing assets and the use of real property 

by Roxann’s son without payment of rent or other costs associated with that property. Hytrek stated 

that she requested “a very specific accounting” from Roxann for the years 2009 through 2012, and 

“unless there is proof to the contrary, a Surcharge action against Roxann Haley is appropriate under 

the circumstances, and will be done by this Special Administrator.”

Roxann provided the requested accounting, and on September 5, 2013, Hytrek filed an 

“Application for Surcharge” in both cases. Hytrek alleged that Roxann “used her position as [sic] 

Durable Power of Attorney to benefit her and her husband,” and that this constituted self-dealing. 

Hytrek further alleged that Roxann “breached her fiduciary duty as the actions she undertook as 

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[sic] the Durable Power of Attorney were clearly not in the best interests of [Virginia’s] estate; 

that she and her husband unduly influenced [Virginia] to sign agreements that were not in the best 

interests of the trust and her estate[.]”

On October 25, 2013, Dan, Steve, and Vickie filed a petition for intervention in both cases; 

the court granted their request to intervene on November 13.

Trial regarding the surcharge action took place on August 12, 13, 26, September 23, and 

November 19, 2014. Witnesses testified about Virginia’s living arrangements, and the family 

dynamic between Virginia, Vickie and her husband (Kim Coonrod), Dan, Steve, and Roxann and 

her husband (Robert Haley). Numerous exhibits were also received. A summary of the evidence 

pertinent to the matter on appeal follows.

On November 27, 2008, Virginia suffered a serious stroke. Despite care and rehabilitation, 

the stroke rendered Virginia unable to care for herself or live independently. Virginia spent time 

in hospitals and nursing homes until she moved in with Roxann and Robert in May 2009. She lived 

with the Haleys until her death on February 20, 2012.

At the time of Virginia’s stroke, Vickie’s husband, Kim, was Virginia’s attorney in fact 

under an October 10, 2008, power of attorney. Shortly after the stroke, Dan, Steve, and Roxann 

met to discuss Virginia’s power of attorney. At that meeting, Roxann indicated her intent to take 

the power of attorney away from Kim. Virginia then executed three POA agreements over a 

3-month period. On January 21, 2009, Virginia named Roxann and Dan as attorneys in fact. On 

January 28, Virginia signed another agreement that also named Roxann and Dan as attorneys in 

fact. Finally, on March 25, Virginia signed her last power of attorney and named only Roxann as 

attorney in fact; this power of attorney remained valid until Virginia’s death.

Before Virginia signed the 2009 power of attorney documents, her treating physicians 

considered her unable to handle her personal financial and healthcare affairs. On December 5, 

2008, Dr. J. Paul Cook of Lakeside Hospital hand wrote on a “Physician Orders/Progress Notes”

form that Virginia was “unable to manage her own personal financial affairs - a status that will 

likely persist for some time, most likely for the remainder of her life[.]” Also, an unaddressed note 

dated January 6, 2009, and signed by Dr. Thomas A. Franco of Immanuel Rehabilitation Center, 

states that he had been treating Virginia “since she suffered a stroke” and that it was his medical 

opinion that she was “unable to handle her medical or financial affairs since suffering her stroke 

11-27-08.”

However, on January 16, 2009, Dr. Steve Hoody (Virginia’s primary care physician since 

1956) wrote a letter “To Whom It May Concern” regarding Virginia’s stroke and progress. Dr. 

Hoody explained that since Virginia was admitted to a hospital at which he was not “on the staff,”

another primary care physician had been assigned to her during her hospitalization. He added, 

“Since then she has made progressive and significant improvement and is presently in an assisted 

living care facility[.]” Dr. Hoody also wrote that he talked by telephone with Virginia and Roxann, 

and that Virginia “wishes to have her power of attorney rescinded.” It was his opinion that 

Virginia’s power of attorney could be rescinded, “[i]f this opinion agrees with her current primary 

care physician[.]”

After moving in with the Haleys, Virginia lived in a room that the parties alternatively 

described as a walk-in closet or a den. Regardless, using the largest dimensions mentioned at trial, 

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Virginia’s room was no larger than 10 feet by 10.5 feet. Roxann charged Virginia approximately 

$6,000 per month for room and board between May 2009 and February 2012. The $6,000 included 

$1,200 for 1/3 of the monthly mortgage, $203 for 1/3 of the monthly utilities, $50 for 1/3 of the 

garage space, $1,095 for food ($36 per day), $183 for meal preparation, $195 for laundry services, 

$45 for transportation, $150 for cleaning and supplies, and $2,879 for personal care from Roxann. 

Checks for these expenses were written by Roxann to herself or to “cash” from Virginia’s account, 

signing the checks “Roxann Haley, POA.” Robert testified that the $6,000 per month figure was 

based on his consultations with various nursing homes and healthcare providers. In addition to the 

monthly living expenses paid to Roxann, Virginia also paid the cost of her own in-home healthcare 

providers. According to exhibit 43 (prepared by Robert), the total amount paid out of Virginia’s 

funds between May 2009 and February 2012 was $416,118.89.

Roxann collected $6,000 per month even when Virginia stayed at the hospital or nursing 

home. During the county court proceedings, Roxann said she demanded the full $6,000 when her 

mother was gone because her mother’s attorney, Joe Byam, advised her to do so “because, just 

like a nursing home, the bed was saved, the room was saved.”

Between May 2009 and November 2010, Roxann collected $108,000 in rent and associated 

costs without a written agreement with Virginia. In November 2010, 18 months after Virginia 

moved in with the Haleys, Robert prepared a written “Living Arrangement Agreement” defining 

living arrangements for Virginia at their home and indicating her consent to pay $6,000 per month 

for the items noted in the agreement. The monthly fee was to include housing, room cleaning, 

utilities, garage space, daily activities (physical therapy to be completed by other providers), 

transportation, daily personal care, hygiene, food/beverages, meal preparation, and laundry 

service. The agreement stated that it did not include day care providers (noting times of day care 

needed), required medications, hair salon services, prescribed supplemental vitamin drinks, night 

time products, and any food/beverage purchased outside the home for Virginia and her day care 

providers. Robert based this “Living Arrangement Agreement” on a document he found on the 

internet, but made some alterations. This agreement was to run from a backdated effective date of 

June 1, 2010, to June 1, 2011. Roxann and Virginia signed the agreement on November 24, 2010, 

but Robert did not.

Virginia’s attorney, Byam, subsequently drafted a “Lease and Care Agreement” to replace 

the “Living Arrangement Agreement.” Byam said that he prepared this more formal agreement 

after two telephone calls, one from Virginia in which she recounted a visit from Adult Protective 

Services, and one from Roxann, in which she informed him that Adult Protective Services 

suggested some sort of written agreement governing the living situation between Roxann, Robert, 

and Virginia.

The county court received two documents titled “Lease and Care Agreement” into 

evidence. The agreements are nearly identical and both are signed by Roxann, Robert, and 

Virginia. While the documents were supposedly signed on the same day, both display very 

different signatures from Virginia. Robert’s explanation was that Virginia was left-handed and she 

had to sign with her right hand. In addition, one of the documents contains no signature date while 

the other displays a date of December 9, 2010. The undated document includes an attached detailed 

itemization reflecting a breakdown of the charges totaling $6,000; the dated document does not 

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have this attachment. Robert testified that both documents contained the attachment when signed, 

and that both documents were signed at the same time. The signed and dated “Lease and Care 

Agreement” ran indefinitely from month to month with a backdated effective date of January 1, 

2010.

In addition to the financial elements of this case, the parties presented evidence regarding 

the strained personal relationships within the family. We highlight some of this evidence below.

On June 6, 2009, Roxann sent a letter to Dan, Steve, and Vickie detailing the proper 

procedures for visiting Virginia at Roxann’s home. The letter stated that Roxann’s agreements 

with home care providers prohibited these providers from allowing anyone into the home. Roxann 

requested that everyone schedule visits with Virginia at least 24 hours in advance. Dan, Steve, and 

Vickie also received an unsigned letter dated April 26, 2011. This letter stated that Dan, Steve, and 

Vickie could meet Virginia for breakfast each Sunday at 9:15 a.m. at a Hy-Vee restaurant in west 

Omaha, Nebraska. The letter also stated that either Roxann or a mediator would attend each 

breakfast.

Dan likened visiting his mother to visiting a “detention center” and said that visits consisted 

of “going over to Roxann’s house and sitting there while she is standing guard.” Vickie and Kim 

visited Virginia only once after she moved in with Roxann. The visit was short and, according to 

Vickie, unpleasant enough that Vickie refused to visit Virginia at Roxann’s home again. Virginia’s 

sister-in-law visited twice, and both times met with Virginia on Roxann’s driveway.

Originally, Vickie and Steve were not permitted in Roxann’s home without either herself 

or Robert present. Roxann testified that she excluded Steve “[b]ecause right before my mother 

came to live with me, Steve slugged me as hard as he could in my stomach at Hillcrest.” When 

questioned, Roxann testified that Vickie was not permitted in the house alone “[b]ecause -- not to 

be trusted.” Additionally, Dan said that while he was initially allowed to be in Roxann’s home 

without either Roxann or Robert being present, over time, he found himself essentially unable to 

see or speak with Virginia without Roxann, Robert, or a mediator present.

A “Fact Sheet” from one of Virginia’s stays at Hillcrest Health & Rehab lists only Roxann, 

Robert, and their son, Ross Haley, as contacts for Virginia. The words “no contact from anyone 

else” were handwritten on the sheet as well, in all capital letters. Roxann acknowledged that she 

might have written “no contact from anyone else” on the Hillcrest “Fact Sheet” but simultaneously 

denied directing anyone to write those words on the Fact Sheet. Roxann also denied prohibiting 

others from visiting Virginia.

On March 25, 2015, the county court entered the same order in both the estate and trust 

cases, finding in relevant part that: after her stroke, Virginia was unable to care for herself and was 

dependent on others for her daily care and hygiene; Virginia was a vulnerable adult; Roxann 

accepted appointment as an agent under the power of attorney on or about March 25, 2009; Roxann 

had a fiduciary relationship with Virginia by virtue of the power of attorney; Roxann isolated 

Virginia from her friends and children; Roxann instructed nursing home staff to prevent Vickie, 

Steve, and Dan from visiting Virginia; Roxann required her siblings to pay a mediator whenever 

they wanted to see their mother “which had a chilling effect” on their visitations; the accounting 

prepared by Roxann and her attorney contained “numerous entries which are not appropriate and 

excessive, including: [r]oom, [b]oard, [t]ransportation, [m]eals, [e]ntertainment, [t]herapy, [h]ome 

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care, [h]ygiene, [g]ifts and [l]oans to Ross Haley, auto and fuel expenses”; Roxann allowed her 

son to live in Virginia’s house rent-free for 20 months and the house went into foreclosure resulting 

in $578.80 in interest charges on a late payment; Roxann breached her fiduciary duties as attorney 

in fact for her mother. The court found that the amounts for “Room and Board, etc.” were 

$196,473.65; that the special administrator fees for the investigation and prosecution of the 

surcharge action were $40,838.31, and that they were necessary and fair; and that the intervenors 

“were required to expend monies to investigate and join in the prosecution of the [s]urcharge 

action” and their attorney’s fees of $58,465.66 were necessary and fair, reasonable, and customary. 

The court entered judgment in favor of the estate and against Roxann “for amounts charged for 

room and board,” for the special administrator’s fees and intervenors’ attorney’s fees, and $578.80 

for “interest charges on the late payment” when Virginia’s home went into foreclosure. The total 

judgment entered against Roxann was $296,356.42.

Although the record contained evidence of other dealings and expenditures made by 

Roxann as Virginia’s attorney in fact beyond the judgment entered (e.g., gifts and loans to 

Roxann’s son, the fair rental value of Virginia’s home, auto and fuel, and home health care), the 

county court did not include such expenditures in its judgment against Roxann. The county court 

denied Roxann’s motion for new trial. Roxann now appeals to this court, and her two appeals were 

consolidated for briefing and disposition.

III. ASSIGNMENTS OF ERROR

Roxann assigns, restated, that the county court erred by (1) concluding that she breached 

her fiduciary duties as attorney in fact for Virginia, (2) finding no express agreement for payment 

between Roxann and Virginia, (3) failing to find the agreement was in the best interests of Virginia, 

and (4) assessing attorney fees and costs against her in favor of the special administrator and 

intervenors.

IV. STANDARD OF REVIEW

In the absence of an equity question, an appellate court, reviewing probate matters, 

examines for error appearing on the record made in the county court. In re Estate of Watkins, 243 

Neb. 583, 501 N.W.2d 292 (1993). When reviewing a judgment 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. In re Estate of Jakopovic, 261 Neb. 248, 622 

N.W.2d 651 (2001).

Statutory interpretation is a question of law that an appellate court resolves independently 

of the trial court. Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016).

V. ANALYSIS

We first note that although the same order was filed in the estate case and the trust case, 

the final order on appeal in both cases pertains to the surcharge action initiated by Hytrek as special 

administrator in the estate case. All matters for which Roxann was surcharged pertain to her actions 

as attorney in fact for Virginia before her death, and not as a cotrustee of the trust. We conduct our 

review accordingly.

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1. ROXANN’S BREACH OF FIDUCIARY DUTY 

AS ATTORNEY IN FACT

Roxann addresses the first three assignments of error noted above under two argument 

headings in her brief. First, she argues that all payments to Roxann while Virginia lived with her 

“were authorized under the power of attorney document and were made pursuant to an express 

agreement with [Virginia].” Brief for appellant at 10. Her second argument asserts that the 

“[p]ayments to Roxann for Virginia’s care were in the best interests of Virginia.” Brief of appellant 

at 12. We address Roxann’s arguments in that order.

(a) Power of Attorney and Express Agreement

In considering the applicable legal principles, we begin with the fundamental 

understanding that a power of attorney authorizes one person to act as the agent of another. See 

Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003). An agent is required to act solely for the 

benefit of his or her principal in all matters connected with the agency and adhere faithfully to the 

instructions of the principal. Id.

Absent an express intention, an agent may not use his or her position for the agent’s or a 

third party’s benefit in a substantially gratuitous transfer. Archibald v. Reifenrath, 274 Neb. 894, 

744 N.W.2d 701 (2008). An attorney in fact, under the duty of loyalty, always has the obligation 

to act in the best interest of the principal unless the principal voluntarily consents to the attorney 

in fact engaging in an interested transaction after full disclosure. Id. The basic policy concern 

underlying the law that forbids self-dealing is primarily addressed to the potential for fraud that 

exists when an agent acting pursuant to a durable power of attorney has the power to make gifts, 

especially after the principal becomes incapacitated. See Crosby v. Luehrs, supra.

Several cases involving alleged wrongful conduct and self-dealing through the use of a 

power of attorney have been decided by our Supreme Court. See Litherland v. Jurgens, 291 Neb. 

775, 869 N.W.2d 92 (2015). As noted in Litherland, our courts have long recognized that because 

of the agency relationship created by a power of attorney, the authority and duties of an attorney 

in fact are governed by the principles of the law of agency, including the prohibition against an 

agent profiting in transactions in which the agent represents the principal. Id. Because of these 

concerns, our courts have held that a party establishes a prima facie case of fraud by showing that 

an attorney in fact used the principal’s power of attorney to make a gift of the principal’s assets to 

himself or herself. See id. Whether the fiduciary acted in good faith or had actual intent to defraud 

is immaterial; when these circumstances are shown, the law presumes constructive fraud. Id. The 

significance is that the burden of going forward with evidence then shifts to the fiduciary to 

establish by clear and convincing evidence that the transaction was made under the power 

expressly granted in the instrument, the clear intent of the donor, and the fairness of the transaction. 

See id.

In addition to that burden for a fiduciary, where there is a familial relationship between the 

deceased and a claimant seeking compensation for services, the claimant must rebut by competent 

evidence the presumption that the services were rendered gratuitously. In re Estate of Haddix, 211 

Neb. 814, 320 N.W.2d 745 (1982).

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With these legal principles in mind, we now consider whether Roxann used her position as 

attorney in fact for her benefit or a third party’s benefit in a substantially gratuitous transfer in 

violation of the prohibition against an agent profiting in transactions in which the agent represents 

the principal. Since there is evidence of a written agreement, Roxann must establish that the 

transaction was made under the power expressly granted to her, that it was made with clear intent 

by Virginia, and, importantly, she must prove the fairness of the transaction. Additionally, because 

of her familial relationship with Virginia, Roxann must also overcome the presumption that her 

services were rendered gratuitously.

Roxann argues that the power of attorney authorized her to enter into contracts and pay for 

Virginia’s personal care; that payments to Roxann during Virginia’s residence with her “were not 

self-dealing, were not unauthorized gifts, but were payments made for services with the express 

consent of Virginia.” Brief for appellant at 9. Further, she states that “[t]he presumption that a 

child’s services in caring for a parent were done gratuitously is not conclusive.” Brief for appellant 

at 10.

Roxann first discusses in her brief why the services she rendered to her mother were not 

gratuitous. Citing to In re Estate of Chalupa, 134 Neb. 918, 280 N.W. 164 (1938) and In re Estate 

of Baker, 144 Neb. 797, 14 N.W.2d 585 (1944), Roxann asserts that “[t]he presumption is properly 

overcome through evidence from disinterest [sic] persons testifying about statements made by the 

decedent referring to an agreement to pay the child, and/or from documentary evidence of the 

same.” Id. Roxann claims that “it is uncontroverted that [Virginia] did not want to live in a nursing 

home, and that she was not able to return to her own home due to her physical limitations.” Brief 

for appellant at 11.

Roxann claims that the “Lease and Care Agreement,” along with witness testimony, 

sufficiently rebuts the presumption of gratuity in this case. She relies on In re Estate of Chalupa, 

134 Neb. 918, 280 N.W. 164 (1938) (presumption of gratuity for services rendered overcome when 

daughter of decedent produced memorandum signed by father agreeing to payment for services, 

along with testimony of two disinterested witnesses), and In re Estate of Baker, 144 Neb. 797, 14 

N.W.2d 585 (1944) (presumption of gratuitous services for work performed by nephew managing 

uncle’s farm operations overcome by uncle’s public statements and actions before death and 

weaker familial relationship). Roxann contends that Virginia orally agreed to pay the Haleys to 

live with them, the “oral agreement was ratified in the written document,” and that “[n]either the 

siblings nor the special administrator presented evidence that Virginia did not intend to pay 

Roxann” while living with her. Brief for appellant at 11. She also claims that Dan was paid when 

he took care of Virginia while Roxann was away, that Dan was aware of the payment agreement 

and did not complain until after Virginia died, and that none of the siblings disapproved of the care 

she gave Virginia.

Roxann concludes her argument on this issue by asserting that the county court erred by 

“failing to find an express agreement” between herself and Virginia, and by finding that “Roxann 

breached her fiduciary duty to Virginia” by receiving the payments at issue. Brief for appellant at 

12. Roxann’s entire argument in opposition to the $196,473.65 judgment (for room and board) 

entered against her appears to be that since there was a written agreement, she has overcome the 

presumption that she provided the services to Virginia gratuitously, and she is therefore permitted 

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to be paid the amounts set forth in the agreement. However, even assuming Roxann may have 

overcome the presumption of gratuitous services because of the existence of an agreement, such a 

finding would not mean the county court had to ignore the other evidence that she used her position 

as attorney in fact for her personal or a third party’s benefit by making substantially gratuitous 

transfers. See Archibald v. Reifenrath, 274 Neb. 894, 744 N.W.2d 701 (2008). In other words, 

simply because Roxann was able to present a document alleged to be signed by Virginia setting 

forth payments to be made to Roxann for Virginia’s care does not by itself preclude a fact finder 

from determining that the terms within the document constituted self-dealing and resulted in 

gratuitous transfers from Virginia’s funds. As noted above, self-dealing is prohibited to address 

the potential for fraud that exists when an agent acting pursuant to a durable power of attorney has 

the power to make gifts, especially after the principal becomes incapacitated. See id.

There is nothing in the county court’s opinion to indicate that the court failed to find an 

express agreement, as Roxann alleges; rather, the court is silent as to the agreement. The court 

does, however, specifically find that there were inappropriate and excessive expenditures by 

Roxann acting as Virginia’s attorney in fact. Notably, the court found that Virginia’s stroke 

“profoundly disabled her,” that “[s]he was dependent on others for her daily care and hygiene,”

and that she “was a vulnerable adult.” The court also found that Roxann was “appointed as agent 

under Durable Power of Attorney signed by Virginia L. Failla on March 25, 2009,” and that 

Roxann accepted the appointment by taking action under the power of attorney. The court then 

noted that Roxann had a fiduciary relationship with Virginia because of the power of attorney, and 

that while Roxann “was the [a]ttorney-in-fact for her mother,” she isolated Virginia from her other 

children and friends, prevented the other children from seeing Virginia while she was at a nursing 

home, and required them to pay a mediator whenever they wanted to see Virginia “which had a 

chilling effect” on their visits with her.

The court went on to discuss the accounting which contained “numerous entries which are 

not appropriate and excessive including: [r]oom, [b]oard, [t]ransportation, [m]eals, 

[e]ntertainment, [t]herapy, [h]ome care, [h]ygiene, [g]ifts and [l]oans to Ross Haley, auto and fuel 

expenses.” The court noted that Roxann allowed her son, Ross, to live in Virginia’s home 

“rent-free for 20 months,” and the fair rental value of the home was $1,200 per month. Further, 

while Ross was living there, the home “went into foreclosure and interest charges on the late 

payment amounted to $578.80.”

The court concluded that Roxann breached her fiduciary duty as attorney in fact for 

Virginia and entered judgment in favor of the estate and against Roxann for $196,473.65 “for room 

and board[.]” Although Roxann expended more than $400,000 from Virginia’s funds, the county 

court determined that, other than the $578.80 (foreclosure interest), only the charges for room and 

board were not appropriate; these would have been the charges arising from the “Lease and Care 

Agreement” which charged Virginia $6,000 per month to live with the Haleys. The court 

specifically found that the charges were “not appropriate” and that they were “excessive.” Roxann 

failed to prove otherwise. See Litherland v. Jurgens, 291 Neb. 775, 869 N.W.2d 92 (2015) 

(fiduciary bears burden of proving fairness of transaction).

We conclude that the court’s silence as to the written agreement has no meaningful impact 

on its judgment entered in favor of the estate and against Roxann for $196,473.65 (and $578.80) 

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because its conclusion that Roxann breached her fiduciary duty by paying herself inappropriate 

and excessive amounts for Virginia’s care conforms with the law, is supported by competent 

evidence, and is neither arbitrary, capricious, nor unreasonable. We affirm this portion of the order.

(b) Virginia’s Best Interests

Although we have already determined the county court did not err in entering judgment 

against Roxann for Virginia’s room and board charges (and foreclosure interest charges), for the 

sake of completeness, we address Roxann’s “best interests” argument since the law does recognize 

that an attorney in fact may be able to personally benefit from the principal’s funds in certain 

circumstances.

The law recognizes the manifold opportunities and temptations for self-dealing that are 

opened up for persons holding general powers of attorney. Cisneros v. Graham, 294 Neb. 83, 881 

N.W.2d 878 (2016). However, loyalty to the principal can be compatible with an incidental benefit 

to the agent; thus a best interest test is favored over a sole interest test on the grounds that most 

agents under powers of attorney are family members who have an inherent conflict of interest with 

the principal. See Id.

Roxann argues that “while payments to Roxann did reduce the funds available for 

distribution upon Virginia’s death, the same would be true if Virginia had lived in a nursing home 

during that time,” that Virginia did not want to live in a nursing home, and that no one disputes 

Roxann “provided a beneficial service to Virginia in a loving home environment” until her death. 

Brief for appellant at 16. She claims that the payments made to her were “fair and reasonable,”

because the evidence showed that while Virginia lived in a nursing home, she paid approximately 

$325 per day, or $9,885 per month; whereas Roxann was paid “substantially less” at $6,000 per 

month. Brief for appellant at 15. She notes that one of the estate’s witnesses, an attorney, testified 

that family members are typically paid $300 per month, but Roxann argues that this is based on 

Medicaid allowances which are not relevant to private contracts between a parent and child. 

Roxann states she did not engage in self-dealing when making the express agreement with 

Virginia, and that “Virginia was in full and complete control of her mental facilities” after March 

2009, “even though she had physical impairments from her stroke.” Brief for appellant at 13.

Roxann goes on to distinguish her circumstances from those cases where courts have found 

self-dealing by an attorney in fact. She argues that “there is no evidence that Roxann used the 

power of attorney to alter the distribution of Virginia’s property under her will or trust agreement.”

Brief for appellant at 14. Further, “any assumption or claim that that [sic] Roxann unduly 

influenced Virginia is negated by the fact that two separate investigations by Adult Protective 

Services found no wrongdoing by Roxann,” and “[i]t was Adult Protective Services’ suggestion 

that the payment arrangement between Roxann and Virginia be put in writing.” Id.

The evidence does not support Roxann’s assertion that the payments made to her were fair 

and reasonable because Roxann would have paid $9,885 per month in a nursing home, whereas 

Roxann was paid “substantially less” at $6,000 per month, brief for appellant at 15, and that 

“Virginia would have paid much more to a nursing home than she did while living with Roxann,”

reply brief for appellant at 5. If we take the total amount ($416,511) spent by Roxann over the 

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course of the approximately 33 months Virginia lived with her, that equates to $12,621 per month, 

which is higher than Roxann’s estimated cost for nursing home care.

Further, the attorney who testified for the estate had 33 years of experience in elder law, 

and had “training on recognizing exploitation and adult abuse cases, looking for red flags, financial 

exploitation, and physical abuse, . . . and what to look for when . . . doing a forensic accounting 

review.” The attorney reviewed depositions (including Roxann’s), medical documents, the 

accounting, and some care giving exhibits. The attorney answered affirmatively when asked if 

anything in the accounting raised any red flags, and stated that “[a] red flag would be anything that 

I would see in an accounting that made me question whether or not that was an expenditure by the 

principal or for the benefit of the principal . . . and you would have to look into, see whether or not 

that was a legitimate expense or not, because on the face of it, it would not appear to be legitimate.”

The attorney noted that one red flag was that “even though there [were] descriptions of significant 

functional limitations, there [were] a lot of restaurants . . . quite a few charges at home 

improvement stores like Menards and Lowes.” The attorney flagged a loan paid to someone other 

than the attorney in fact, and took notice of the amounts of money Roxann was paying herself. It 

was “suspicious or unusual” that payments were made in cash rather than by check, and if Roxann 

“had control of her mother’s money, I wasn’t clear as to why she needed to be reimbursing herself 

so frequently.” The attorney testified that the average amount a family member typically asked for 

room and board “ends up being somewhere between [$]300 and $600.” The attorney testified that 

$6,000 per month was not fair and reasonable, and that “[i]t’s not typical at all” for children to get 

compensated for taking care of their parents; “it’s not that that it never happens, but it’s certainly 

not typical.”

It was alleged that Roxann expended more than $416,000 of Virginia’s funds during a 

33-month period from May 2009 through February 2012. Of that amount, judgment was entered 

against Roxann for $196,473.65. There were numerous incidental benefits to Roxann and her 

family that were not included in that judgment, such as gifts and loans to Roxann’s son, the fair 

rental value of Virginia’s home, auto and fuel, restaurant charges, use of vehicles, miscellaneous 

credit card charges, and others. The county court must have determined those expenditures were 

made in Virginia’s best interests and did not constitute self-dealing by Roxann. However, as 

discussed previously, there was competent evidence to support that the $6,000 per month room 

and board charges were excessive and not in Virginia’s best interests.

2. FEES

The county court awarded fees to the special administrator and the intervenors; no statutory 

authority or uniform procedure was cited. The court’s March 25, 2015, order states, “As a further 

result of [Roxann’s] breach of fiduciary duty, the Estate was required to expend monies to 

investigate and prosecute the Surcharge action. The Special Administrator fees for the 

investigation and prosecution of the Surcharge action of $40,838.31 were necessary and are fair, 

reasonable and customary.” The court concluded the same with regard to the intervenors and 

awarded them an attorney’s fee of $58,465.66. Judgment was entered in favor of the estate and 

against Roxann for these amounts.

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Roxann argues there is no statutory or uniform procedure to allow for the recovery of 

attorney fees incurred by the intervenors or the special administrator. It is true that the general rule 

in Nebraska is that an attorney fee may be recovered only when authorized by statute, or when a 

recognized and accepted uniform course of procedure allows recovery of an attorney fee. Rosse v. 

Rosse, 244 Neb. 967, 510 N.W.2d 73 (1994). We have previously determined that there is no 

statutory authority or uniform course of practice which would allow attorney fees to be awarded 

in a surcharge action against a former personal representative. See In re Estate of Snover, 4 Neb. 

App. 533, 546 N.W.2d 341 (1996). In the present action involving a breach of fiduciary duty by 

an attorney in fact, neither party has provided any authority for such fees except as may be allowed 

under the Nebraska Uniform Power of Attorney Act, Neb. Rev. Stat. § 30-4001 et seq. (Cum. 

Supp. 2014) (Nebraska UPOAA). When an agent violates the Nebraska UPOAA, § 30-4017(2) 

permits an award of costs and expenses, including reasonable attorney fees to any party, to be paid 

by another party, when justice may require. However, the Nebraska UPOAA only became 

effective January 1, 2013; therefore, Roxann claims the Nebraska UPOAA does not apply because 

the actions complained about took place prior to Virginia’s death in February 2012. We examine 

the intervenors’ award and the special administrator’s award separately to determine whether 

authority exists to allow such fees.

(a) Intervenors’ Attorney Fees

As noted above, § 30-4017(2) authorizes a court to award reasonable attorney fees, costs, 

and expenses to any party, to be paid by another party, if an agent violates the Nebraska UPOAA. 

However, Neb. Rev. Stat. § 30-4045 states:

Except as otherwise provided in the Nebraska Uniform Power of Attorney Act, on 

January 1, 2013:

(1) The act applies to a power of attorney created before, on, or after January 1, 

2013;

(2) The act applies to a judicial proceeding concerning a power of attorney 

commenced on or after January 1, 2013;

(3) The act applies to a judicial proceeding concerning a power of attorney 

commenced before January 1, 2013, unless the court finds that application of a provision 

of the act would substantially interfere with the effective conduct of the judicial proceeding 

or prejudice the rights of a party, in which case that provision does not apply and the 

superseded law applies; and

(4) An act done before January 1, 2013, is not affected by the act.

The language of a statute is to be given its plain and ordinary meaning, and an appellate 

court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016). The plain 

language of § 30-4045(4) states that any “act” done before January 1, 2013, is not affected by the 

act (Nebraska UPOAA). Because the acts committed by Roxann in breach of her fiduciary duty to 

Virginia as her attorney in fact occurred before Virginia’s death in February 2012, the Nebraska 

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UPOAA does not apply and cannot provide the necessary statutory authority to support the court’s 

$58,465.66 judgment against Roxann for the intervenors’ attorney fees.

The appellees’ argue that § 30-4045 “clearly applies to judicial proceedings commenced 

after January 1, 2013,” and that the petition for surcharge was filed September 5, 2013, and the 

intervenors petitioned to intervene in November 2013. We agree that the Nebraska UPOAA can 

apply to proceedings commenced after January 1, 2013, see § 30-4045(2), just as it can apply to 

proceedings commenced before January 1, 2013, see § 30-4045(3), and to powers of attorney 

created before January 1, 2013, see § 30-4045(1).

However, our general rules of statutory interpretation require an appellate court to give 

effect to the entire language of a statute, and to reconcile different provisions of the statutes so 

they are consistent, harmonious, and sensible. Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 

48 (2016). A court must attempt to give effect to all parts of a statute, and if it can be avoided, no 

word, clause, or sentence will be rejected as superfluous or meaningless. Id.

Applying those rules here, we cannot ignore the very specific language of § 30-4045(4) 

which states that “[a]n act done before January 1, 2013, is not affected by the act.” To reconcile 

this language with the other provisions of the statute so it is consistent, harmonious, and sensible, 

we can only conclude it means what it says. Since the other provisions of the statute allow the 

Nebraska UPOAA to apply to powers of attorney created before January 1, 2013, and to 

proceedings commenced prior to that date, it would have been unnecessary to add subsection (4) 

if all actions occurring under such instruments and proceedings prior to that date were intended to 

include specific “acts.” Accordingly, the only meaning that can be drawn from subsection (4) is to 

exclude specific “acts” committed prior to that date, exactly as it says.

There being no statute or recognized and accepted uniform course of procedure to allow 

the intervenors to recover an attorney fee from Roxann, we reverse and remand the attorney fee 

judgment entered against Roxann in the amount of $58,465.66, with directions to vacate this 

portion of the judgment.

(b) Special Administrator’s Fees

The county court also entered judgment against Roxann in favor of the estate for Hytrek’s 

fees as special administrator in the amount of $40,838.31. Like the attorney fee award discussed 

above, this judgment cannot be supported by the Nebraska UPOAA. And although there is 

statutory authority for a special administrator to be awarded reasonable compensation for services 

rendered, we can find no authority that permits assessing such fees against another party.

A special administrator appointed by the court in any formal proceedings has the power of 

a personal representative, absent any specific restriction by the court. See Neb. Rev. Stat. 

§ 30-2460 (Reissue 2008). See, also, Neb. Rev. Stat. § 30-2209(33) (Cum. Supp. 2014) (personal 

representative includes . . . special administrator). A personal representative is entitled to 

reasonable compensation for services. See Neb. Rev. Stat. § 30-2480 (Reissue 2008). If any 

personal representative or person nominated as personal representative defends or prosecutes any 

proceeding in good faith, whether successful or not, the personal representative is entitled to 

receive from the estate necessary expenses and disbursements, including reasonable attorney fees 

incurred. See Neb. Rev. Stat. § 30-2481 (Reissue 2008). In summary, a special administrator has 

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all the powers of a personal representative and may receive compensation for services, including 

attorney fees, when prosecuting any proceeding in good faith.

Given the county court’s decision and our affirmance regarding the judgment against 

Roxann in favor of the estate for the room and board (and foreclosure interest) charges, it cannot 

be disputed that the surcharge action was brought in good faith; Hytrek was entitled to be 

compensated. And when an attorney fee is authorized, the amount of the fee is addressed to the 

trial court’s discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion. 

In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009). We find no abuse of discretion in the 

county court’s determination as to the special administrator’s fee of $40,838.31.

However, we can find no authority, nor has any been provided to us, that would permit 

assessing the special administrator’s fee directly against Roxann. Rather, § 30-2481, states that the 

personal representative is entitled to receive such fees “from the estate”; it says nothing about 

recovery from another party. Therefore, we affirm the judgment amount for Hytrek’s special 

administrator fees, but reverse and remand this portion of the order with directions to vacate the 

$40,838.31 judgment against Roxann, and enter judgment for the special administrator’s fees 

consistent with § 30-2481.

VI. CONCLUSION

Of the total judgment entered against Roxann for $296,356.42, we affirm the $196,473.65 

for “room and board” and the $578.80 for late payment interest charges when Virginia’s home 

went into foreclosure. We reverse and remand the award of intervenors’ attorney fees in the amount 

of $58,465.66, with directions to vacate this portion of the judgment entered against Roxann. We 

affirm the amount awarded for Hytrek’s special administrator fees, but reverse and remand this 

portion of the order with directions to vacate the $40,838.31 judgment entered against Roxann for 

such fees, and to enter judgment in this amount for the special administrator’s fees consistent with 

§ 30-2481.

AFFIRMED IN PART, AND IN PART REVERSED

AND REMANDED WITH DIRECTIONS.

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