In re The Robert Preus and Donna Mae Preus Lake Property Family Trust.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0633

In re The Robert Preus and Donna Mae
Preus Lake Property Family Trust.

Filed December 20, 2021
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-TR-CV-10-120

Mark R. Bradford, Norman M. Abramson, Casey D. Marshall, Bassford Remele, P.A.,
Minneapolis, Minnesota (for appellants)

Blake Shepard, Siegel Brill, P.A., Minneapolis, Minnesota (for respondent Solveig Fiene)

V. John Ella, Nicholas N. Sperling, Anna M. Koch, Trepanier MacGillis Battina, P.A.,
Minneapolis, Minnesota (for respondent Rolf Preus)

Considered and decided by Connolly , Presiding Judge; Cochran , Judge; and
Halbrooks, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
In this trust dispu te, appellants -trustees challenge the district court’s (A) relief
granted to respondents-beneficiaries; (B) removal of one of the trustees; and (C) attorney -
fee award. We affirm.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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FACTS
This case concerns real property located on the Gunflint Lake in On tario, Canada
(the property). The property consists of over 200 acres of “pristine wilderness” and has
over 3,000 feet of lakeshore. There are no local or provincial building codes or regulations
that apply to the property, such as setbacks, building siz e restrictions, or other zoning or
land management regulations. The property is very remote and is only accessible by boat
or by ice road when the lake is frozen.
The property was originally purchased in 1929 by Idella Preus, who later transferred
it to her two sons, Robert Preus and Jacob (“Jack”) Preus, as tenants in common. The
brothers had the property surveyed to create 19 lakefront lots. Nine of the lots were
designated to Robert and nine were designated to Jack. 1 The areas not surveyed and
designated into lots remained common area. Jack later conveyed his undivided half -
interest in the property to a trust he created. The remaining half -interest in the property
remained with Robert as a tenant in common.
Robert died, unexpectedly, in 1995, a nd his undivided half-interest in the property
passed to his wife, Donna Mae Preus (settlor). Based on previous discussions she had with
her husband, settlor established the Donna Mae Preus Lake Property Family Trust (Trust)
on December 18, 1996, to hold what had been Robert’s undivided half -interest in the

1 Lot 11 was designated as a common lot because it has no suitable building site.
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property for use by the beneficiaries of the Trust. 2 The beneficiaries of the Trust are “the
Settlor’s [ten] children, primarily, and the Settlor’s descendants secondarily.”
Under the terms of the Trust, seven of settlor’s children were given “the exclusive
right to use and build on the lots” that were designated to them in the Trust. These seven
children are Christian Preus, Peter Preus, respondent Rolf Preus, Katherine Briel, Karren
Perkins, respondent Solveig Fiene, and Klemet Preus.3 The children’s “exclusive right” to
build on their designated lots began on January 1, 2004. The Trust characterized the time
period leading up to that date as the “non-exclusive period,” in which all the trust property
was “available for the use and enjoyment of the Settlor’s descendants on a reasonably equal
basis.”
Each of the children’s lots has approximately 150 to 200 feet of lakeshore and each
lot is approximately 250 feet deep. The land behind the individual lots is not designated to
any individual. There is also a strip of land on the property that runs along the shoreline
that is designated as a common beach area.
Christian, an attorney at a Minneapolis law firm, was appointed as trustee. The
trustee is obligated to “administer” the Trust “for the benefit of Settlor’s children primarily
and Settlor’s descendants, secondarily.” The trustee also has “the right to designate the use
and enjoyment of the common portions of the property that have not been specifically

2 Robert’s undivided half-interest in the property will hereinafter be referred to as the “trust
property.”
3 Klemet is now deceased. And because many of the children share the same last name,
our opinion will refer to the children by their first names.
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designated.” And the Trust also allows the Trustee to appoint an additional or successor
trustee, who “must be a descendant of ROBERT D. PREUS.”
Prior to 2004, there were three cabins on the property that were used by Robert’s
and Jack’s fa milies. One of the cabins was built on Lot 8. In addition to the cabin, a
bunkhouse was constructed, which is now owned by Rolf, a retired pastor. Of the settlor’s
children, Rolf has the largest family, consisting of 12 children and 65 grandchildren.
In the summer of 2003, Rolf built a second outhouse on his lot to accommodate the
bunkhouse. Shortly thereafter, at the end of the non-exclusive period set forth in the Trust,
the children began building cabins on their designated lots. As construction of the cabins
ensued, the settlor and Christian determined that there should be some fundamental rules
regarding building construction and land use. According to Christian, these rules were
prompted primarily by Rolf’s construction of the second outhouse and Solveig and her
husband John Fiene’s construction of a boathouse on the lakeshore.
In February 2007, the settlor informed the children of a set of rules regarding the
trust property. The rules were drafted by Christian and included rules about the number
and size of buildings per lot, setback requirements, and limitations on what trees could be
cut down. The settlor informed the children that these rules are “not simply suggestions,”
that they are consistent with her intent in establishing the Trus t, and that the trustee may
“make more rules as time goes by.”
In May 2007, a forest fire burned much of the forest and destroyed all of the
structures on the trust property. As the children began to rebuild on their lots, disputes
arose, many of which form the underlying grounds for this lawsuit. For example, because
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Solveig’s lot did not provide for a good cabin location on its beach elevation given the
rules regarding setbacks, she chose to rebuild on the top of the bluff. But before building
the cabin, Solveig and her husband built a bunkhouse. The settlor and Christian objected
to the bunkhouse because of its size and location. Christian also believed that the
bunkhouse was actually a shed to store ATV’s, which would violate the 2007 rules. And
Christian was upset because the Fienes did not consult him in advance regarding their
building plans, stating in a 2008 email that all building plans must be first approved in
advance by him.
In December 2008, without obtaining permission from the Fienes or providing them
advance notice, Christian hired a third party to move the bunkhouse. He then sent the
Fienes a bill for moving the bunkhouse, which the settlor later agreed to pay. During this
time, a dispute arose over a road that was built on Solv eig’s lot. Although Christian
believed that John was attempting to build a permanent road on the lot in violation of the
Trust’s rules, Solveig claimed that the road was temporary and was only created to move
building materials to the upper elevation of her lot.
Another dispute during the rebuilding process involved Rolf’s desire to rebuild a
second outhouse on his lot. Christian objected to the construction of the second outhouse,
which prompted him to promulgate a second set of rules in May 2009. In response, Rolf
sent several emails to Christian questioning his authority to control the Trust’s
beneficiaries’ ability to build on their lots. Ultimately, however, Rolf’s second outhouse
was never built.
6
In February 2010, the settlor wrote to her children requesting that they sign a pledge
(Loyalty Pledge), or risk being disinherited. The Loyalty Pledge communicated a set of
principles related to the trust property, such as (1) the Trust beneficiaries are to honor the
terms of the Trust; (2) it is th e trustee’s responsibility to ensure that the settlor’s intent is
carried out, and the beneficiaries are obligated to respect and follow the rules and decisions
made by the trustee; (3) any disputes between beneficiaries shall be decided by the trustee;
and (4) spouses are not beneficiaries to the Trust, but are considered “guests.” The Loyalty
Pledge was prepared with Christian’s advance knowledge and approval and contained
signature lines for the settlor’s children.
All the settlor’s children signed the Loyalty Pledge except Solveig and, initially,
Rolf. Rolf was reluctant to sign the pledge because he felt that the insistence on Christian,
as trustee, having authority that could not be challenged under any circumsta nces was
contrary to the Trust itself and the wishes of his deceased father. But he eventually signed
the Loyalty Pledge after talking with the settlor and receiving a letter from some of his
siblings urging him to sign it.
Solveig was also upset about being asked to sign the Loyalty Pledge and reacted by
writing a letter to the settlor expressing her love for her and her disappointment with
Christian’s actions, as well as stating that she would not sign the Loyalty Pledge. In
addition, John responded by writing a letter to the settlor’s pastors, who were the settlor’s
son-in-law, Steven Briel, and her oldest son, Klemet. John, who, like several of his brothers
and brothers-in-law, is a pastor in the Lutheran Church, claimed to have sent the letter in
confidentiality to the settlor’s pastors in their capacity as pastors to the settlor. In the letter,
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John accused Christian of violating several Biblical commandments, attempting to
maliciously destroy property, and demanding “complete submission.” The l etter also
attacked the settlor, accusing her of potential criminal collaboration, of “papistic legalism,”
of demanding idolatry and insanely defying truth and justice, and of acting with complete
absence of love. John’s letter deeply offended the settlor and was circulated amongst the
settlor’s family, prompting more familial discord.
In response to John’s letter, the settlor’s lawyer wrote to John on May 5, 2010,
informing him that he was not permitted to set foot on the trust property without writte n
permission from Christian. Christian also responded by sending two letters on May 6,
2010, one to John and one to the settlor’s children. In the letter to John, Christian informed
him that he was “not permitted to enter on the . . . [t]rust property” unless he “accept[s] the
Trust and commit[s] to honor, respect and comply with the Trust, the rules of the Trust,
and the decisions of the Trustee.” And in the letter to the children, Christian stated that
“our enjoyment of the [trust] property has been di srupted,” and that the “source of the
problem is John.” The letter also contained a list of misbehaviors attributed to John and
stated that John could not return to the trust property unless he met with the trustee and
received the trustee’s permission. Christian then followed up the May 6 letters by sending
a 39-page, single-spaced letter to the entire extended family on May 21, 2010. The letter
reviewed years of encounters with John, stated that John was aggressively defying the
Trust, the Trust rules, and the authority of “Mom’s trustee,” and claimed that John had
made it clear that he had no intent to stop his defiance and refused to be subject to the Trust,
the rules of the Trust, or the authority of the trustee.
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Solveig responded to Christian’s communications in September 2010, by writing a
letter to her family justifying the Fienes’ actions and stating that they had retained an
attorney to advise them of their rights with respect to the Trust. She then asked the settlor
if they could all mediate the dispute regarding the Fienes’ access to the trust property. The
settlor rejected the mediation invitation, instead sending Solveig a copy of a proposed
“Petition for Construction and Instructions” related to the trust property.
In November 201 0, Karren wrote a letter to her family members asking for
reconciliation, explaining that the Fienes were simply defending themselves, and stating
that she would be “devastated” if the Fienes never went to the trust property again.
Christian subsequently contacted Karren and told her that the Fienes were planning on
suing the settlor. After contacting Solveig, and being unpersuaded by her that Christian’s
claim was false, Karren told several people, including Katherine, that she had been sexually
harassed by John. She later filed a formal charge with John’s ecclesiastical supervisor,
which triggered a formal investigation by the Lutheran Church. Several of the children,
including Christian, wrote unsolicited letters to the church’s investigating body supporting
Karren’s allegations. The investigation by the church concluded in January 2013, without
reaching a conclusion related to the allegations.
In the meantime, in September 2010, Christian appointed Katherine and Erik as co-
trustees.4 Two months later, the settlor and trustees filed a petition for clarification of the
Trust. The petition alleged that the Trust’s language “is ambiguous and uncertain as to the

4 Christian, Katherine, and Erik, as trustees of the Trust , are the appellants in this case.
They will, hereinafter, be collectively referred to as the “trustees.”
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‘continuing enjoyment of the [trust] property for all beneficiaries,’ the ‘exclusive use of
the cabin,’ and ‘the exclusive right to use and enjoy the lot’ designated to individuals.”
The petition sought an order clarifying the Trust consistent with the settlor’s intent.
The petition was unopposed. In an order dated February 17, 2011 (2011 order), the
district court largely adopted the language of the petition and concluded that the Trust is to
be construed in accordance with the settlor’s stated intent. The 2011 order authorized the
trustees “to establish rules and regulations for the management, administration, and use of
the Trust Property as they deem prudent, subject to their fiduciary standards.” The 2011
order also authorized the trustees to enforce their rules and impose sanctions, both financial
and otherwise, for failure to follow the rules.
In the summer of 2012, John visited the trust property for the first time in three
years. Apparently aware of his plans, the trustees wrote to John reminding him that he was
prohibited from going to the common beach area. The trustees als o issued new annual
rules for the Trust between 2012 to 2014. These rules, however, made no mention of
restrictions involving John.
The Fienes visited the trust property during the summers of 2013 to 2015. Once
during the summer of 2015, John and his family visited Rolf’s family at his cabin. Karren
reported to Katherine that she could hear John’s voice coming from Rolf’s cabin. Although
no action was immediately taken by the trustees, a letter from the trustees was sent to
Solveig in May of 2016, remi nding her that “John is not to come to the beach area while
there are other beneficiaries up at the lake.”
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The settlor died in May 2017. Christian was appointed the personal representative
of the settlor’s estate and, because she never signed the Loyalt y Pledge, Solveig was
disinherited. The trustees then continued to issue annual rules regarding the trust property,
none of which mentioned restrictions on John accessing the trust property.
In July 2018, Rolf wrote to the trustees about several conce rns regarding the Trust
administration. Specifically, he was alarmed over the trustees’ objection to his building of
a second outhouse. He also stated that the trustees were exceeding their authority over
designated lots for which the Trust granted exclu sive use and enjoyment to certain
designees. Rolf then met with the trustees later that summer to discuss his concerns and
sent an email to “Members of the Robert Preus Family” in February 2019, criticizing
Christian for his inability to reconcile issues involving the Trust.
Christian, in his capacity as personal representative of the settlor’s estate, responded
by suing Rolf. The suit sought to disinherit Rolf on the grounds that he signed the Loyalty
Pledge under false pretenses and without intention to honor its terms. The suit sought
damages equal to the amount Rolf received in his inheritance, as well as gifts he received
from the settlor during her lifetime. That case is still ongoing.
Also in the summer of 2018, the trustees learned that John visited the beach on one
occasion and visited Rolf’s cabin. The trustees responded by issuing new rules in March
2019, including (1) no urination anywhere except in the outhouses, including no urination
in the lake; (2) no more than one outhouse per lot, which must be at least 150 feet from the
shoreline; (3) “[n]o more than a total of 10 people, or a married couple and their children,
whichever is greater, can stay overnight . . . on a lot, unless a specific exception is approved
11
in advance by the trustees”; and (4) subject to “no exceptions,” John is prohibited from any
portion of the trust property other than the lots designated for Solveig. The trustees justified
the rules by citing the need to keep the trust property in pristine wildern ess condition as
well as to ensure the beneficiaries’ use and enjoyment of the trust property.
After the issuance of the March 2019 rules, Solveig filed a petition asserting that the
rules involving John constituted a breach of fiduciary duty by the trus tees. Shortly
thereafter, Rolf filed a petition, alleging that the 2019 rules setting capacity limits, limiting
outhouses, and otherwise governing urination, improperly target his family and constitute
a breach of fiduciary duty. Both petitions also sought removal of the trustees.
The trustees moved for summary judgment, arguing that Solveig’s petition was
barred by res judicata based on the 2011 order. The trustees also argued that the statute of
limitations barred the petition. The district court d enied the summary -judgment motion,
concluding that res judicata did not apply because the 2011 order did not decide the issue
raised in Solveig’s petition and because her claims arose from facts and events occurring
after the 2011 order. The statute-of-limitations argument was denied without comment.
Following a bench trial, the district court made extensive findings of fact, including
a finding that the court had “not seen [this case’s] equal in terms of intra-familial discord.”
In analyzing Solveig’s challenge to the trustees’ rules restricting John’s access to the trust
property, the district court applied a fiduciary -duty standard and determined that the
trustees acted unreasonably and with improper motives. The district court then analyzed
Rolf’s challenges to the trustees’ rules and determined that the one -outhouse rule
unreasonably interfered with Rolf’s exclusive use and enjoyment of his lot. But the district
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court determined that Rolf was unable to show that the trustees acted in bad faith i n
implementing the other rules because there were legitimate reasons for the rules. Finally,
the district court removed Christian as trustee, concluding that he “eclipsed his fiduciary
duty” by ignoring “the restrictions of the Trust and law to advance his own authority.” The
district court also determined that removal was proper because Christian had a conflict of
interest of his own making, created by his decision to sue Rolf—a beneficiary of the Trust
to whom he owed a fiduciary duty —seeking to recover his inheritance and gifts from the
settlor, based on Rolf’s alleged disavowal of the Loyalty Pledge and breach of his promise
to “acquiesce completely to the Trustee’s authority in all matters to the Trust for the rest of
his life as a condition of inheri tance.” The district court, however declined to remove the
other two trustees, concluding that their actions do not warrant removal.
In a separate order, the district court found that Solveig’s petition benefited the Trust
and awarded her fifty percent of her attorney fees and costs. The district court applied a
similar analysis to Rolf’s petition and awarded him twenty percent of his attorney fees and
costs. And in considering the trustees’ request for attorney fees, the district court reiterated
that the trustees acted in bad faith. But the district court concluded that a portion of the
trustees’ fees and costs were incurred in service to the Trust. Thus, the district court
awarded the trustees ten percent of their attorney fees and costs. There w ere no posttrial
motions. This appeal follows.

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DECISION
I.
In the absence of a motion for a new trial, our scope of review includes substantive
legal issues properly raised to and considered by the district court, whether the evidence
supports the findings of fact, and whether those findings support the conclusions of law
and the judgment. See Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn.,
664 N.W.2d 303, 309–10 (Minn. 2003) (stating that new-trial motion is not prerequisite to
appellate review of substantive legal issues properly raised and considered in district
court); Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976) (stating
that absent motion for new trial, appellate courts may review whether evidence supports
findings of fact and whether findings support conclusions of law and judgment). This court
also reviews pretrial orders denying summary judgment to the extent that th ey are orders
“involving the merits or affect ing the judgment” being appealed. Minn. R. Civ. App. P.
103.04; see also Schmitz v. Rinke, Noonan, Smoley, Deter, Colombo, Wiant, Von Korff &
Hobbs, Ltd., 783 N.W.2d 73 3, 744 (Minn. App. 2010) (holding that summary -judgment
denials based on legal determinations are within scope of review), rev. denied (Minn. Sept.
21, 2010).
A district court’s findings of fact are given great deference and shall not be set aside
unless clearly erroneous. Fletcher v. St. Paul Pioneer Press , 589 N.W.2d 96, 101 (Minn.
1999). A finding is clearly erroneous when the reviewing court is “left with the definite
and firm conviction that a mistake has been made.” LaPoint v. Family Orthodontics, P.A.,
892 N.W.2d 506, 515 (Minn. 2017) (quotation omitted). But issues of law are reviewed
14
de novo. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n , 358 N.W.2d 639, 642
(Minn. 1984).
A trustee owes a fiduciary duty to the beneficiary of a trust. Thomas B. Olson &
Assocs., P.A. v. Leffer Jay & Polglaze, P.A., 756 N.W.2d 907, 914 (Minn. App. 2008), rev.
denied (Minn. Jan. 20, 2009). Failure to administer a trust in accordance with the settlor’s
intent is a breach of fiduciary duty. Lund ex rel. Revocable Tr. of Kim A. Lund v. Lund ,
924 N.W.2d 274, 284 (Minn. App. 2019), rev. denied (Minn. Mar. 27, 2019). To maintain
an action for breach of fiduciary duty, a plaintiff mus t prove four elements: (1) duty; (2)
breach; (3) causation; and (4) damages. Id. Failure to establish one of these elements
defeats a claim of breach of fiduciary duty. Id.
The trustees challenge the order granting relief to respondents, arguing that the
district court erred by (A) “interpreting the Trust to convey exclusive ‘easements’” over
the individual lots; (B) “concluding that the one -outhouse rule is unreasonable”; an d (C)
concluding that the trustees cannot restrict John’s access to the trust property.
A. Easement conclusion
In addressing respondent’s claims, the district court concluded that the “Trust
unambiguously provides each of the seven Children an easement to exclusively use and
exclusively enjoy his/her designated lot and to not be subject to the Trustees’ administrative
authority over his/her designated lot.” The trustees argue that the district court erred in
interpreting the Trust to convey exclusive ea sements because (1) the 2011 order has res
judicata effect and bars the easement conclusion; (2) the decision is “wrong”; and (3) the
15
district court reinterpreted the Trust to convey an easement without notice or opportunity
to be heard.
Respondents conte nd that the trustees’ challenge to the district court’s easement
analysis is not properly before this court because the trustees did not move for a new trial.
Indeed, the supreme court has stated that a “motion for a new trial or amended findings is
a prerequisite to appellate review regarding matters of trial procedure, evidentiary rulings,
and jury instructions.” Continental Retail, LLC v. County of Hennepin , 801 N.W.2d 395,
399 (Minn. 2011) (quotations omitted). But the supreme court also recognized t hat “a
general demarcation line could be drawn between the assignment of errors that require a
post-trial motion, referring to rulings of the district court that reside within the court’s
discretion, and substantive questions of law that we review de novo. ” Id. (quotation
omitted).
First we begin by concluding that the district court’s use of an easement analysis
was more of a construct to frame the rights of the beneficiaries. Here, the district court’s
decision to use an easement construct to analyze the rights of the beneficiaries with respect
to their individual lots did not involve a matter of trial procedure, nor was the decision
made during the course of trial. See Sauter v. Wasemiller, 389 N.W.2d 200, 201-02 (Minn.
1986) (using the phrases “occurring at trial,” “during the course of trial,” and “during trial”
to depict issues that must first be addressed in a motion for a new trial before appellate
review may be sought). In other words, the district court’s decision was not a quick, on -
the-spot decision. See County of Hennepin v. Bhakta, 922 N.W.2d 194, 198 (Minn. 2019)
(stating that, when objections are made during trial, the district court must make quick, on-
16
the-spot decisions). Instead, the decision was made after the district court heard a ll the
evidence and arguments in the matter. Therefore, the trustees’ challenge to the district
court’s easement construct analysis is properly before us.
1. Res judicata
Res judicata can bar relitigation of a claim when: “(1) the earlier claim involved the
same set of factual circumstances; (2) the earlier claim involved the same parties or their
privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full
and fair opportunity to litigate the matter.” Rucker v. Schmidt, 794 N.W.2d 114, 117 (Minn.
2001). “The common test for determining whether an action is precluded is to determine
whether the same evidence will sustain both actions.” Mach v. Wells Concrete Prods. Co.,
866 N.W.2d 921, 925 (Minn. 2015) (quotation omitted). “Res judicata not only applies to
all claims actually litigated, but to all claims that could have been litigated in the earlier
action.” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004).
The trustees argue that the 2011 order has res jud icata effect because their 2010
petition “sought to resolve the scope of the Trustees’ administrative authority,” involved
all the same parties, was a final resolution on the merits, and both Solveig and Rolf had
notice and the opportunity to litigate the matter. But the issues raised in the 2010 petition
are different from the issues raised in this case; the 2010 petition related to the general
authority of the trustees, whereas the issue in this case concerns specific exercises of the
trustees’ authority and whether the trustees breached their fiduciary duty in exercising that
authority. And, in light of the difference between the issues, the evidence needed to sustain
the issues is not the same. See Mach, 866 N.W.2d at 925 (stating that the “ common test
17
for determining whether an action is precluded is to determine whether the same evidence
will sustain both actions” (quotation omitted)). For example, respondents’ petitions were
prompted by actions that occurred after the 2011 order, including the promulgation of the
2019 rules. These rules involved urination on the trust property, outhouses, and John’s
access to the trust property. T here is nothing in the 2011 order addressing any of these
issues. Accordingly, the doctrine of res judicata is not applicable.
2. Merits of the easement construct
Next, the trustees contend that the district court’s easement analysis is erroneous
because it fails to consider applicable Ontario law, contravenes the settlor’s intent, and
makes achieving the settlor’s intent impossible. We disagree. The issue before the district
court at trial was whether the rules promulgated by the trustees violated the terms of the
Trust, thereby constituting a breach of the trustees’ fiduciary duties. In addressing this
question, the district court looked to the plain and unambiguous language of the Trust,
which provides that “[o]n and after January 1, 2004, the be neficiaries shall have the
exclusive right to use and enjoy the lot specified to them under . . . this Agreement.”
(Emphasis added.) To determine whether the rules promulgated by the trustees violated
respondents’ “exclusive right to use and enjoy” their lots, the district court construed the
language of the Trust to mean that the rights conveyed to the individual lot owners were
akin to an easement.
The trustees argue that the district court’s easement construct analysis is erroneous
because the trust property “is located exclusively in Ontario, Canada,” and “[a]ny
determination of whether the Trust conveys an easement in real property located in Ontario
18
is necessarily governed by laws applicable to that province.” But, although the trust
property is in Canada, the district court’s order does not convey a formal, legal easement.
Rather, the order indicates that the rights bestowed on the beneficiaries under the Trust to
exclusively use and enjoy their lots is identical to the rights bestowed on an eas ement
holder under the laws of Minnesota. For example, the district court stated: “The Trust
granted certain beneficiaries the exclusive right to use and enjoy specified lots on the Trust
Property. Put another way , the Trust granted certain beneficiarie s an easement for the
exclusive right to use and enjoy the designated lots on the Trust Property.” (Emphasis
added.) The district court could have stopped after the first sentence. Instead, it elaborated
by stating, “[p]ut another way,” the beneficiaries were granted an easement to use the lots.
The language used by the district court indicates an analogy —that the rights conveyed to
the beneficiaries under the Trust were similar to the rights conveyed to an easement holder.
The district court then looked to the laws of Minnesota pertaining to easements to convey
the beneficiaries’ rights under the Trust to use and enjoy their lots. Therefore, despite the
trustees’ argument to the contrary, no formal or legal easement was created by the district
court’s analysis.
The trustees also contend that the district court’s “easement conclusion . . .
contravenes the Settlor’s intent and undermines the entire purpose of the Trust.” This
argument is unavailing. The Trust provides that “[u]ntil January 1, 2004, t he [trust
property] shall be for the general use, enjoyment and benefit of all the descendants of
ROBERT D PREUS,” and that “[d]uring the pendency of th[is] non -exclusive use period,
the [trust] property shall be available for the use and enjoyment of the Settlor’s descendants
19
on a reasonably equal basis.” The Trust further provides that “[o]n and after January 1,
2004, the beneficiaries shall have the exclusive right to use and enjoy the lots specified to
them under . . . this Agreement.” The Trust’s spe cific designation of a “non -exclusive
period” and an “exclusive period” reflects a specific distinction between the beneficiaries’
rights to their individual lots before and after January 1, 2004.
Moreover, the Trust expressly limits the trustees’ admini strative authority with
respect to the individual lots after the non -exclusive period has ended. Specifically, the
Trust provides:
On and after January 1, 2004, the beneficiaries shall
have the exclusive right to use and enjoy the lot specified to
them under . . . this Agreement. The Trustee shall have the
right to designate the use and enjoyment of the common
portions of the property that have not been specifically
designated.

The Trust’s language differentiating between the rights the beneficiaries ha ve over
their individual lots and the trustees’ administrative authority over the common areas
indicates that the trustees’ authority over the common areas of the trust property is different
from the trustees’ authority over the individual lots designated to the beneficiaries.
Although the district court looked to easement authority to determine the extent of the
beneficiaries’ right to use their lots and whether the trustees’ rules interfere with the
beneficiaries’ rights, the difference between the trustees’ authority over the common areas
and over the individual lots is depicted in the unambiguous language of the Trust, which is
consistent with the settlor’s intent. Accordingly, the trustees cannot demonstrate that the
district court’s easement construct analysis is erroneous.
20

3. Notice and opportunity to be heard
The trustees argue that the district court’s easement construct analysis was improper
because the court “reinterpreted the Trust to convey an easement without notice or
opportunity to be he ard.” But the record reflects that the trustees moved for summary
judgment, which was denied, and then participated in a lengthy trial in which voluminous
amounts of evidence was admitted. And although the district court sua sponte used an
easement construct to address the beneficiaries’ rights to their individual lots, the trustees
objected to the district court’s use of that construct in their arguments concerning attorney
fees. The trustees cannot show that they were denied notice and the opportunity to be
heard.
B. One-outhouse rule
The trustees argue that the district court erred in concluding that the one -outhouse
rule is unreasonable because the court “granted relief on a claim that Rolf . . . never
asserted.” We disagree. Although Rolf testified at one point that he had “given up” on this
challenge to the one -outhouse rule, his petition concerned the trustees’ general rules
regarding urination on the trust property. Part of Rolf’s objections to the rules consisted
of the trustees’ objections to his family’s use of a urinal on hi s lot, as well as the fact that
a “porta potty” would be prohibited under the trustees’ one-outhouse rule. In other words,
the rules regarding outhouses and urination on the trust property are intertwined and closely
related. Thus, Rolf ’s general challenge to the trustees’ rule regarding urination belies the
trustees’ argument that the district court granted relief on a claim that Rolf never asserted.
21
Moreover, the trustees’ challenge to the relief granted with respect to the one -
outhouse rule exemplifies the nature of this litigation as described by the district court on
page 11 of this opinion. Rolf testified at trial that he takes medication for his heart that
causes him to urinate frequently. He also testified that he has a prostate condition that
makes it impossible to urinate while sitting. According to Rolf, “[y]ou can’t pee in an
outhouse standing up without making a mess, not when you’re 67 years old with prostate
trouble. It’s not possible.” In fact, Rolf noted that his “outhouse is twice as far from my
cabin as anybody else’s is,” which further demonstrates his need for a second outhouse.
The district court considered Rolf’s challenge to the trustees’ rules regarding urination and
made extensive findings related to the impact of the rules on Rolf’s use and enjoyment of
his lot. The district court’s findings are supported by the record and support its decision
that the one -outhouse rule unreasonably interferes with Rolf’s use and enjoyment of his
lot. Therefore, the trustees cannot show that the district court erred in concluding that the
one-outhouse rule is unreasonable.
C. Rule restricting John’s access to the trust property
The trustees challenge the district court’s decision that the trustees cannot restrict
John’s access to the individual lots. They first argue that the decision is erroneous because
John was banned from the trust property in 2010, almost ten years before Solveig filed her
petition. Thus, the trustees argue that Solveig’s petition is barred by the statute of
limitations set forth in Minn. Stat. § 501C.1005(a) (2020).5

5 Solveig argues that the trustees’ statute-of-limitations argument is not properly before this
court because it was not raised during or after trial. But the record reflects that the trustees’
22
The relevant statute of limitations provides that “[a] beneficiary may not commence
a judicial proceeding against a trustee more than three years after the date the beneficiary
or a representative o f the beneficiary was sent a report that adequately disclosed the
existence of a potential claim.” Minn. Stat. § 501C.1005(a). Here, the record reflects that
John was prohibited from entering the trust property in May 2010, after he wrote the letter
to the settlor’s pastors chastising the settlor for requiring her children to sign the Loyalty
Pledge. But the trustees concede in their reply brief that the 2010 prohibition was eased in
2012 when John was permitted “to visit the lots upon which Solveig . . . had the right to
build and use a cabin.” Although the trustees assert that the rule banning John from access
to the rest of the trust property was still in effect, this rule was apparently not enforced
because the record reflects several instances in which John entered various parts of the trust
property between 2012 and 2019. And although new rules were issued between 2010 and
2018, either reaffirming old rules or implementing new ones, the new rules were silent with
respect to John’s access to the trust property. It was not until the trustees promulgated the
2019 rules that John’s access to the trust property was formally adopted, including penalties
for violations of these rules. The promulgation of these 2019 rules appears to be based on

statute-of-limitations argument was raised in their motion for summary judgment, and the
district court denied the motion without commenting on the statute -of-limitations issue.
Although the trustees did not assert the statute -of-limitations argument in a motion for a
new trial, that argument presents a legal issue t hat does not involve trial procedure,
evidentiary rulings, or jury instructions. See Johnson v. Winthrop Labs. Div. of Sterling
Drug, Inc. , 190 N.W.2d 77, 79 (Minn. 1971) (acknowledging that the application of a
statute of limitations is a legal issue). The trustees’ statute -of-limitations argument is,
therefore properly before us. See Continental Retail , 801 N.W.2d at 399 (stating that a
“motion for a new trial or amended findings is a prerequisite to appellate review regarding
matters of trial procedure, evidentiary rulings, and jury instructions” (quotations omitted)).
23
different circumstances than the circumstances related to the 2010 ban. Thus, the
implementation of the new rules in 2019 related to John’s access to the trust property
demonstrates that Solveig’s petition is not barred by the three-year statute of limitations.
The trustees also contend that the district court’s enjoinment of the rule restricting
John’s access to the trust property is erroneous because it is not supported by the record.
We disagree. The district court analyzed the issue “as a potential breach of fiduciary duty,”
noting that in order for Solveig “to prevail, she must establish that the Trustees violated the
Trust, and acted unreasonably and from improper motives.” The district court then found
that the trustees acted with improper motives stemmin g from their bias against John. The
district court also found that the trustees’ rule restricting John’s access to the trust property
was unreasonable because it stemmed from John’s actions that occurred long ago and
concerns for which there was no suppor t. For example, the district court referenced the
fact that the letter John wrote to the settlor’s pastors was written nine years prior to the
2019 rules. The district court also referenced the road that was built when the Fienes were
rebuilding their cabin, noting that the road was temporary, did not result in any permanent
impairment to the trust property, was necessary for the building activities, and occurred
“13 years before the March 2019 rule banning John.” (Emphasis omitted.) And the district
court noted that “the Trustees likely placed little significance on the sexual harassment
investigation [involving John] and its underlying accusations” in placing the restrictions
on John’s access to the trust property. Therefore, the district court conclu ded that “based
on the Trustees’ improper motives, and the unreasonableness of their actions, . . . no
24
reasonable trustee would have banned John . . . from the common Trust property,” or any
of the individual lots.
The district court’s decision is suppor ted by the record. The record is replete with
evidence showing Christian’s bias against John, including exhibit after exhibit of letters
and emails authored by Christian in which he blamed John for the family discord.
Moreover, the record reflects that sexual-harassment allegations involving John originally
stemmed from Christian’s false representation to Karren that the Fienes were planning on
suing the settlor over the Trust. And the record reflects that much of the conduct asserted
by the trustees as supporting the restrictions occurred more than a decade before the 2019
rules. Although much of the district court’s interpretation of the evidence involved
assessing the credibility of the claims and evidence, it is well settled that this court defers
to the court’s credibility determinations. See Kush v. Mathison, 683 N.W.2d 841, 843-44
(Minn. App. 2004) (stating that due regard is given to the district court’s opportunity to
judge the credibility of witnesses), rev. denied (Minn. Sept. 29, 2004). Thus, taking into
consideration the district court’s superior position to weigh the credibility of the testimony
and evidence before it, we conclude that the district court did not err in determining that
the 2019 rules restricting John’s access to the trust property were unreasonable.
II.
The trustees challenge the district court’s removal of Christian as trustee. We
review such a decision for an abuse of discretion. See Lund, 924 N.W.2d at 284 (“We
review a district court’s decision whether to remove a trustee for abuse of discretion.”).
25
A trustee must administ er a trust in good faith. Minn. Stat. § 501C.0801 (2020) .
“A trustee owes a duty of loyalty to the beneficiaries,” and “shall not place the trustee ’s
own interests above those of the beneficiaries.” Minn. Stat. § 501C.0802(a) (2020). When
a trust has t wo or more beneficiaries, “the trustee shall administer the trust impartially,
giving due regard to the beneficiaries’ respective interests.” Minn. Stat. § 501C.0803
(2020). A trustee must prudently administer the trust in light of its purpose, terms, an d
distribution requirements. Minn. Stat. § 501C.0804 (2020). And “[a] trustee is required to
exercise a discretionary power in good faith and in . . . the best interests of the
beneficiaries.” In re the Trust of Lawrence B. Schwagerl Trust Under Agreeme nt Dated
April 9, 1999, 965 N.W.2d 772, 783 (Minn. 2021) (quotation omitted).
Generally, district courts are reluctant to remove a trustee selected by a settlor. See
In re Will of Gershcow, 261 N.W.2d 335, 338 (Minn. 1977). But a beneficiary may petition
the district court to remove a trustee. Minn. Stat. § 501C.0706(a) (2020). The district court
may remove a trustee if the trustee has committed a serious breach of trust or the trustee is
unfit, unwilling, or persistently fails to effectively administ er the trust to best serve the
interests of the beneficiaries. Minn. Stat. § 501C.0706(b) (2020). “[T]he determination of
what constitutes sufficient grounds for removal of a trustee is within the discretion of the
[district] court.” Gershcow, 261 N.W.2d at 338.
The trustees argue that the district court abused its discretion by removing Christian
as trustee because he exercised authority confirmed by the 2011 order. That order provides
that the “Trustees are authorized to establish rules and regulation s for the management,
administration and use of the Trust Property as they deem prudent, subject to their fiduciary
26
standards.” The trustees argue that the district court’s decision “cannot be reconciled with
the 2011 Order, which recognized that the scop e of the Trustees’ authority to create and
administer rules includes the designated lots on the Trust property.”
We are not persuaded. According to the trustees, the 2011 order provides the
trustees with the unrestricted authority to establish rules and regulations related to the entire
trust property. But the 2011 order is not this broad. Rather, the order provides that the
trustees may establish rules and regulations related to the trust property “ subject to their
fiduciary standards.” (Emphasis added.)
Failure to administer a trust in accordance with a settlor’s intent is a breach of
fiduciary duty. See Pfoser v. Harpstead, 953 N.W.2d 507, 520 (Minn. 2021) (stating that
a “trustee has a duty to administer a trust in good faith, in ac cordance with its terms and
purposes and the interests of the beneficiaries” (quotation omitted)); see also Lund , 924
N.W.2d at 284 (stating that “[t]rustees owe beneficiaries duties of loyalty, full disclosure,
and action pursuant to the terms of the trust”). A settlor’s intent is determined by reviewing
the trust instrument and considering any reasonable inferences that can be drawn from the
document. In re Trusteeship of Williams , 591 N.W.2d 743, 747 (Minn. App. 1999). A
court determines a settlor ’s “dominant intention” by considering the trust agreement as a
whole; if the trust agreement is not ambiguous, the court confines itself to the agreement’s
language and does not consider extrinsic evidence. In re G.B. Van Dusen Marital Trust ,
834 N.W.2d 514, 520 (Minn. App. 2013), rev. denied (Minn. Jun. 26, 2013).
Here, the parties agree that the Trust is unambiguous but differ on what they
perceive the settlor’s dominant intention to be. “If a trustee acts in good faith, from proper
27
motives, and within the bounds of reasonable judgment in distributing trust funds,” a court
will generally not interfere in the trustee ’s exercise of discretion, unless the trustee ’s
actions violate the settlor’s intent or the trust’s purpose. Id. at 523-24 (quotation omitted).
This court has discussed factors to consider in determining if a trustee has abused his or
her discretion, including (1) the extent of the trustee’s discretion under the trust terms; (2)
the purpose of the trust; (3) the nature or extent of power vested in the trustee; (4) the
existence of a standard to judge the reasonableness of the trustee’s actions; (5) the trustee’s
motives; and (6) any conflicts of interest between the trustee and the trust beneficiaries. In
re Trs. A & B of Divine, 672 N.W.2d 912, 919-20 (Minn. App. 2004).
As discussed above, the district court determined that the plain language of the Trust
provides the beneficiaries with an exclusive right to use and enjoy their individual lots.
And, as the district court found, some of the rule s and regulations imposed by the trustees
violate this right. Although the trustees contend that they imposed the rules and regulations
in good faith, the district court found otherwise. Specifically, the district court found that
“there is a dearth of good faith and an abundance of ill will exhibited by [Christian].” The
district court’s finding is supported the record. Christian took a position in contradiction
to the plain language of the Trust, believing he could exercise complete control over the
individual lots. And the record is replete with evidence demonstrating that Christian acted
in an abundance of ill will towards anyone who challenged his authority as trustee.
Christian’s consistent pattern of conduct in contradiction to the plain language of the Trust
supports the district court’s decision that Christian violated his fiduciary duty, thereby
warranting his removal as trustee.
28
The trustees also challenge the district court’s conclusion that Christian’s conflict
of interest warrants remova l. The trustees argue that the district court’s decision is
erroneous because the “Trust specifically provides that a beneficiary may serve
simultaneously as both a Trustee and in another fiduciary role, including representative of
Settlor’s estate.” And the trustees cite In re Hormel’s Tr. , 163 N.W.2d 844, 850 (Minn.
1968), for the proposition that a trustee should not be removed based on a perceived conflict
of interest of which the settlor was aware at the time of appointment.
The trustees are correct that, under the Trust, “a Trustee may . . . be a personal
representative of [the settlor’s] estate.” But the general rule is that trustees are “strictly
prohibited from engaging in transactions that involve self-dealing or that otherwise involve
or create a conflict between the trustee’s fiduciary duties and personal interests.”
Restatement (Third) of Trusts § 78(2) (2007).
Here, it was not an inherent conflict of interest to be the personal representative and
the trustee, but once Christian sued a beneficiary of the Trust as the personal representative
in a separate action, it became a conflict of interest. In other words, the record reflects that
Christian owed a fiduciary duty to Rolf as the trustee of the Trust under which R olf is a
beneficiary. But the record also reflects that, as the personal representative of the settlor’s
estate, Christian owes a duty to uphold the wish of the settlor to disinherit any of her
children attempting to hold Christian, as trustee of the Trus t, accountable for his actions
under the Trust. Under the circumstances presented in this case, Christian cannot do both.
Moreover, the trustees’ reliance on Hormel is misplaced. In that case, the supreme
court stated that a court “will not ordinarily remove a trustee named by the settlor upon a
29
ground existing at the time of his appointment and known to the settlor and in spite of
which the settlor appointed him, although the court would not have appointed him trustee.”
163 N.W.2d at 850 (quotation o mitted). Consistent with Hormel, the Trust specifically
allowed a trustee to also serve as the personal representative of the settlor’s estate, which,
as stated above, was not an inherent conflict. But Hormel is not dispositive of the issue
presented here because, unlike in Hormel, a conflict of interest arose once Christian sued
a beneficiary of the Trust. Accordingly, we conclude that the district court did not abuse
its discretion by removing Christian as trustee.
III.
Finally, the trustees challenge the district court’s attorney-fee award. An award of
attorney fees from a trust will not be reversed absent an abuse of discretion. In re Great
N. Iron Ore Props., 311 N.W.2d 488, 492 (Minn. 1981).
Minnesota courts have long recognized that a benefic iary or a party to a trust may
be allowed attorney fees and expenses from a trust. Id. The oft-cited rule was established
in In re Atwood’s Tr.:
In the sound and cautiously exercised discretion of the
court, and not as a matter of right, attorneys’ fees and other
expenses reasonably and necessarily incurred by all necessary
parties to litigation may be allowed and properly charged to the
trust esta te where such litigation, with respect to substantial
and material issues, is necessary in order to resolve the
meaning and legal effect of ambiguous language used by the
settlor in the trust instrument, if an adjudication thereof is
essential to a propert y administration of the trust, and if,
without unnecessary expense or delay, the litigation is
conducted in good faith for the primary benefit of the trust as a
whole.

30
35 N.W.2d 736, 740 (Minn. 1949).
The trustees argue that the district court abused its discretion in awarding attorney
fees to respondents “because neither petition benefitted the Trust.” But the district court
determined that although the enjoining of the 2019 ban of John appears to superficially
“benefit only [the] Fiene[] family, the ruling sprang from an analysis of the Trust language,
which concluded that the Trust unambiguously granted exclusive use easements to certain
beneficiaries and as to those easements, the Trustee could not act in a way that
unreasonably interfered with the easement holder’s easement rights.” The district court
concluded that, as a result, the “ruling regarding the Trust language benefited the Trust by
clarifying the proper reach of Trustee authority.” And the district court determined that the
Trust was benefited by the removal of Christian as trustee due to his “egregious” behavior
and “serious breach of his fiduciary duty.” The district court then used a similar analysis
in determining that Rolf’s petition provided some benefit to the Trust. The district court’s
analysis properly characterizes the record and demonstrates that the Trust was benefited by
the decisions in favor of respondents.
Having concluded that respondents’ petitions benefited the Trust, the district court
crafted an order considering the benefit to the Trust incurred by the petitions, as well as the
fact that not all the relief sought in the petitions was granted. The order ultimately awarded
Solveig fifty percent of her attorney fees and costs and Rolf twenty percent of his attorney
fees and costs. The district court’s order is thoughtful, well analyzed, and supported by the
record. Accordingly, the trustees cannot establish that the district court’s award of attorney
fees to respondents was an abuse of discretion.
31
The trustees also contend that they “are entitled to all of their attorney fees and
costs.” We disagree. A trustee defending in good faith a challenge to the trustee ’s
administration of the trust is generally entitled to reasonable attorney fees paid out of the
trust. See In re Tr. Created by Hill, 499 N.W.2d 475, 494 (Minn. App. 1993), rev. denied
(Minn. July 15, 1993). But a district court may deny a trustee ’s claim for attorney fees
paid out of the trust when the trustee acts in bad faith or is guilty of fraud. In re Tr. of
Freeman, 75 N.W.2d 906, 910 (Minn. 1956).
Here, the district court found that the trustees acted in bad faith by ignoring the
unambiguous terms of the Trust. But the district court recognized that it has discretion to
award attorney fees where the Trust has benefited in the face of the trustees’ breach of duty
or bad faith. The district court then determined that the “Trust benefited from the Trustees’
actions in upholding certain 2 019 rules against the challenge of [Rolf].” Therefore, the
district court awarded the trustees ten percent of their fees and costs because “a small
portion of the fees the Trustees incurred [was] in true service to the Trust.”
The trustees argue that they defended the challenges to their Trust administration in
good faith because they reasonably believed they had authority to make decisions regarding
the designated lots based on the language of the 2011 order. But the record is replete with
instances demonstrating Christian’s bad faith. And the Trust clearly and unambiguously
provides the beneficiaries with the exclusive right to use and enjoy their lots. As the district
court determined, some of the trustees’ rules contradict this Trust language. Therefore, the
district court’s attorney-fee award was not an abuse of discretion.
Affirmed.