The Kansas Supreme Court affirmed a court of appeal’s ruling that a beneficiary who had accepted a trust distribution pursuant to a district court’s order had acquiesced to the judgment and could not take an inconsistent position on appeal but reversed the court of appeal’s ruling denying the successor trustee’s request for appellate attorney fees, finding that the evidence supported an equitable award of those fees. Tharrett v. Everett, No. 125,999 (Kan. Aug. 8, 2025).
Roxine Poznich had a revocable living trust naming her daughter Sarah as successor trustee and all five of her children as beneficiaries. After Roxine died in 2020, her son David filed an action to remove Sarah as trustee. The suit was dismissed, and in October 2021, Sarah sent a final trust report with an accounting and a proposed distribution of the trust’s assets to the beneficiaries. The other beneficiaries approved the documents, but David objected, precluding the closing of the trust.
In June 2022, Sarah, as trustee, filed a declaratory action seeking the court’s approval to distribute the trust as recommended in the trust report and for David to pay costs due to his actions delaying the winding up of the trust. The court closed the trust, released Sarah from trustee duties, and ordered Sarah’s attorney to distribute the remaining funds from the trust account to the beneficiaries. In addition, the court awarded Sarah $4,000 in attorney’s fees from David’s share of the distribution.
David accepted his distribution check and filed a notice of appeal. The court of appeals dismissed the appeal, holding that David was barred from appealing the judgment because he had accepted the benefits of the district court’s judgment. It also denied Sarah’s request for costs and appellate attorney fees. The Kansas Supreme Court granted Sarah’s and David’s petitions for review.
The Kansas Supreme Court rejected David’s claim that he should not be deemed to have acquiesced to the district court’s judgment due to his acceptance of the trust distribution check because the judgment was void. The court determined that David’s allegation that the district court violated his due process rights by entering its order without allowing him a meaningful opportunity to be heard and a full copy of the trust document was insufficient to void the judgment. A judgment is void only when the due process violation extinguishes a party’s opportunity to be heard to such an extent that the court has no personal jurisdiction over them. The court found that because David was served, filed multiple pleadings and motions, and appeared twice in person, his argument that the judgment was void was meritless.
The court agreed with the court of appeals that acquiescence could be raised at any time because it implicated subject matter jurisdiction. Further, it ruled that the trust attorney was entitled to an amount from the trust’s residuary beneficiaries for services he had provided. In addition, David had no cognizable claim that he had accepted the trust distribution check as a means of self-protection. The court also rejected David’s argument that his right to the additional trust distribution he sought was separable from the distribution he received from the trust pursuant to the district court’s judgment, finding that he had acquiesced to the judgment and impermissibly sought to challenge the amount distributed on appeal.
The court disagreed with the court of appeals’ denial of Sarah’s request for appellate attorney fees, finding that the court had jurisdiction to award attorney fees even if it lacked jurisdiction to consider the merits of the appeal. Although Sarah was not entitled to attorney’s fees on the basis that David’s appeal was frivolous, the evidence supported an equitable award of appellate attorney’s fees in the amount of $11,320. The court reversed in part and affirmed in part.
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