Malachowski v. Bank One, Indianapolis, N.A.

RILEY, Judge,

dissenting.

I respectfully dissent because I believe that the Bank’s prudence regarding the decision to diversify and the diversification itself, standing alone, is meaningless when the Bank misrepresented facts to the Plaintiff Beneficiaries in order to effectuate the diversification. While I agree with the majority to the extent that it found that the Bank carried out the diversification in good faith and in full compliance with the prudent investor rule, I am unable to get beyond the fact that the Bank made a misleading communication regarding the mandate. Even assuming diversification was positively required, I still could not agree with the majority opinion, because I do not believe that a diversification carried out under the pretense of a misleading representation by a trustee can result in a prudent diversification under any circumstances. Because I agree with parts of the majority opinion, I will address the issues individually below.

First, I think that some additional facts bear mentioning regarding the Noel’s family relationship with Lilly and hence their position on retaining the Lilly stock in the family. The settlor had been a life-long employee of Lilly and a close personal friend of the Lilly family. Harry S. Noel, during his lifetime, was the Director of Trade Relations at Lilly. Furthermore, the settlor’s father-in-law, William A. Hanley, was vice-president and a director of Lilly. Hanley was the first Lilly engineer, and he invented and perfected the capsule making machine.

H. Jerome Noel, Sr., who acted as the spokesperson for the family until his death in 1986, vehemently and consistently opposed the diversification and attempted to work with the Bank to arrive at a compromise. On November 19,1971, Trust Officer Thomas Jenkins wrote a letter to two of the beneficiaries stating that the Bank had been “mandated by the National Bank Examiners’ audit staff and by our Internal Trust Committee to either diversify the concentration of Lilly stock or seek indemnification from all interested parties against any loss due to its retention.” (R. 159). The Plaintiff Beneficiaries and their predecessor in income interest, H. Jerome Noel, Sr., had protested any diversification of the Trust prior to the receipt of this letter. The Bank sold the Lilly stock intermittently from 1972 to 1985. H. Jerome Noel, Sr. died in 1986. H. Jerome Noel, Jr., Plaintiff Beneficiary herein, began inquiring into the status of the Trust account in 1987. During the course of his dealings with the Bank, Trust Officer David Ayers divulged that there was no documentation of any mandate from the National Bank Examiners in the Trust file. Upon request, in September of 1989, the Plaintiff Beneficiaries received a Certification of Non-Existence from the Comptroller of Currency that no such order had ever been issued. (R. 485).

Irreconcilable Conflict

In its extensive entry, the probate court found that the Bank misrepresented to the *792Plaintiff Beneficiaries the existence of a mandate from the National Bank Examiners, and that the Bank breached its fiduciary duty owed to the Beneficiaries to act with the utmost loyalty, honesty and in good faith. The court ordered removal of the Bank as trustee due to this breach of the trust relationship. The court went on then to find that the Bank fully complied with its duty under the prudent investor rule in diversifying the trust. The probate court therefore appeared to treat the misrepresentation and the propriety of the diversification as two separate issues. However, in its findings of fact as to the misrepresentation, the court specifically found that “[p]laintiffs would have brought an action to prevent the diversification, if they had know[n] no government mandate to diversify the Trust existed.” (R. 1161). The probate court found in its conclusions of law that

Bank One was not required or mandated to diversify this Trust as a result of oral suggestions or comments made by the National Bank Examiner’s Audit Staff in 1970 and 1971. The assertion that there was a mandate, without explanation of the legal effect of the comments was misleading and constituted misrepresentation.

(R. 1164).

The findings of the probate court that the Bank misrepresented the existence of a federal mandate to diversify the Trust and that the Bank acted with the utmost good faith are inconsistent. In my opinion, such findings send the message that if a trustee believes that diversification is a prudent course and in the best interest of the beneficiaries, the trustee is free to misrepresent facts to the beneficiaries in order to effectuate the diversification. I cannot agree with this apparent “ends justifies the means” approach. A panel of this court described the tremendous duty a trustee owes to the beneficiaries in a trust relationship as follows:

The trust relationship involves the exercise of the utmost good faith on the part of the trustees for the benefit and furtherance of the interest of the beneficiaries under the trust; a trustee must exercise in its management of the trust the care, skill, prudence and diligence of an ordinarily prudent person engaged in similar business affairs. In the absence of bad faith, or an abuse or unreasonable exercise of discretion by the co-trustees, the courts will not interfere with a decision to use a portion of the corpus for the purpose intended by the settlor.

Matter of Nathan Trust, 618 N.E.2d 1343, 1346 (Ind.Ct.App.1993), reh’g denied, vacated on other grounds by 638 N.E.2d 789 (Ind.1994) (citing Robison v. Elston Bank & Trust Co., 113 Ind.App. 633, 658, 48 N.E.2d 181, 190 (1943)). As our supreme court pointed out in its decision, the courts have consistently and stringently imposed the duty of undivided loyalty owing from trustee to beneficiary:

Many forms of conduct permissible in a workaday world for those acting at aim’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular excep-tions_ Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.

Malachowski, 590 N.E.2d at 567 (citing Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (J. Cardozo); see also Massey v. St. Joseph Bank and Trust Co., 411 N.E.2d 751, 754 (Ind.Ct.App.1980)).

The actions of trustees are also governed by statute in Indiana. The Bank seeks refuge under the prudent investor rule which has been made applicable by statute in Indiana and provides as follows:

In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for any trust, the trustee thereof shall exercise the judgment and care under the circumstances then prevailing which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation *793but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.

I.C. 30-4-3-3(c)(1988). The majority finds that the Bank acted prudently in diversifying the Trust assets. Indeed, the Restatement (Second) of Trusts, section 228 provides that “[ejxcept as otherwise provided by the terms of the trust, the trustee is under a duty to the beneficiary to distribute the risk of loss by a reasonable diversification of investments unless under the circumstances it is prudent not to do so.” Restatement, see. 228, p. 541. However, because I do not see these issues as independent of one another, I cannot agree with the majority opinion.

The probate court’s findings that the Bank breached its duty of good faith, yet complied with its duty of prudent investment and duty of loyalty, I find to be irreconcilable. The majority opinion holds that the probate court’s findings are consistent because they address two separate issues: (1) the Bank’s fiduciary duty with regard to the investment of the Trust and the diversification of Trust assets; and (2) the misrepresentation regarding the Federal Bank Examiners. Notably, the supreme court in its opinion declined to find that under the prudent investor rule, diversification was positively required as a matter of law. Malachowski, 590 N.E.2d 559. However, even assuming that diversification was required, I do not feel that the propriety of the diversification and the means by which the diversification was accomplished can be separated.

I find that the probate court’s findings are in irreconcilable conflict, and require reversal. Specifically, I point to the following conclusions of law:

CONCLUSION OF LAW 12. By virtue of the fiduciary relationship between the parties, Bank One owed Plaintiffs and H. Jerome Noel, Sr. a fiduciary duty to act with utmost loyalty, honesty and in good faith. Bank One has breached this duty.
CONCLUSION OF LAW 22. In diversifying the Trust, Bank One fully complied with its duty under the prudent man rule. Diversification was prudent both to avoid the risk of loss if the price of Lilly stock declined and to increase income. It was reasonable and prudent to incur capital gains taxes as part of the diversification. Bank One mitigated the tax effect by spreading the sales over time and, when possible, by recognizing losses in other Trust assets to offset the tax liability. The fact that Lilly had appreciated in the past did not make diversification imprudent. The past history of a stock does not foretell its future; and there is an excessive risk in holding a trust account 100% concentrated in the stock of any company. Bank One’s position on diversification was reasonable, rational, and consistent with well-established principles of prudent trust investment. Bank One’s decision to diversify was an honest and reasonable exercise of the investment discretion it was given in the Trust instrument. Bank One likewise complied with its duties under the prudent man rule in carrying out the diversification.
CONCLUSION OF LAW 23. The Plaintiffs’ contention that Bank One breached the duty of loyalty to the beneficiaries is rebutted by the evidence. Bank One made the diversification decision based on the interests of the beneficiaries and not on its own interests. Bank One did not diversify in order to increase its fees or to obtain additional investment in Fund B. Bank One acted in accordance with its proper role as a Trustee. Bank One did not breach the duty of loyalty to the Plaintiffs or other Trust beneficiaries.

(R. 1166-1168). I disagree with the majority’s finding that the Bank’s misrepresentation of the reasons for the diversification did not effect the propriety of the diversification.

Prudence of the Diversification Standing Alone

I agree with the majority to the extent that it found that the probate court made specific and adequate findings regarding the circumstances surrounding the diversification decision. In finding that the Bank did not breach the duty of prudent investment, the probate court specifically concluded that “[i]t was reasonable and prudent to incur capital gains taxes as part of the diversification. *794Bank One mitigated the tax effect by spreading the sales over time and, when possible, by recognizing losses in other Trust assets to offset the tax liability. The fact that Lilly had appreciated in the past did not make diversification imprudent.” (R. 1167-68). The court also specifically found that “Bank One did not diversify in order to increase its fees or to obtain additional investment in Fund B.” (R. 1168). The court further found that the Bank’s trustee fees were reasonable, that the Bank did not diversify for the purpose of increasing its fees and that the Bank administered the Trust solely in the best interest of the Beneficiaries.

Deposition and trial testimony reveals that in the opinion of the Bank and the key personnel involved in the administration of the Trust, there was never any impropriety with regard to the handling of the Trust, the Bank never preferred its own interests over the interests of the Beneficiaries, the issue of fees or re-investment into the Bank’s Common Funds never arose in connection with the decision to diversify the Trust. The record reflects that the Investment Review Committee and the Internal Trust Committee felt a constant pressure to diversify the Trust and discussed it regularly during their annual reviews. It was the opinion of the Bank that diversification was in the best interest of the Beneficiaries even considering the capital gains tax liability. However, pri- or to the final decision to diversify, the Bank had consistently approved the retention of the 100% concentration of Lilly stock for several decades. As late as the- October 21, 1971, Internal Trust Committee meeting, the Bank approved retention of the Lilly stock, due to the capital gains tax consequences of diversification. (R. 1802). Notably, when the diversification was carried out, the first sale of 3,736 shares levied approximately $75,000 of capital gains tax. (R. 1806).

Despite some contradictory evidence in the record, prior to the diversification, the Trust was invested entirely in one asset, which is generally an inappropriate way to invest a Trust and diversification has long been a sound investment principle. Furthermore, the payment of capital gains tax is a sure concern in the area of trust portfolio management. Although paying the tax will initially diminish the corpus, the assumption that diversification will conserve the value of the trust over time prevails.

Thus, I agree with the majority’s finding that the diversification itself was likely carried out properly. However, because I choose not to view the diversification in a vacuum, to conclude that the diversification standing alone was proper is of no moment. Under the totality of the circumstances, I believe the diversification was accomplished through the fraud of a fiduciary.

Court Approval For Diversification

I also agree with the majority that the Bank could prudently diversify without seeking court approval.

The probate court found that

Bank One did not act improperly in failing to obtain Probate Court approval for the diversification. Bank One had complete investment authority. However, such a proceeding would have been helpful because of circumstances which raised legitimate questions concerning the propriety of diversification, such as:
a. The remarkable increase in the value of Lilly stock prior to diversification;
b. The significant capital gains taxes resulting from diversification;
c. The strong objections of most of the beneficiaries;
d. The fact that all but one of the income beneficiaries did not need or want increased income.6

*795(R. 1170). Also, the probate court found in its conclusions of law that the misrepresentation could have been cured had the Bank sought probate court direction regarding the propriety of the diversification. In its conclusions of law, the court found as follows:

Bank One’s breach of duty to communicate accurately would have been cured if the Bank had sought instruction of the Probate Court to determine:
(a) Whether it was required to diversify the 100% Eli Lilly stock in order to comply with the prudent investor rule;
(b) Whether the provisions of the Inter Vivos Trust provided Bank One sufficient protection if it continued to hold the 100% Lilly stock concentration;
(c) Whether consent by the beneficiaries to the retention of 100% Lilly stock as opposed to 100% written indemnification would have sufficiently protected Bank One against any potential liability for failing to diversify; and
(d) Whether the indemnification received from two-thirds of the beneficial interests was sufficient to protect Bank One against any liability as a result of its failure to diversify.

(R. 1163-1164).

The supreme court held that the settlor’s intent was clearly expressed in the Trust instrument and the Bank was given the power to “invest and reinvest” the assets of the Trust. Specifically, the supreme court granted summary judgment for the Bank on the Plaintiff Beneficiaries’ breach of fiduciary duty claim, finding that the Bank did not fail to follow the express intent of the settlor that the Lilly stock remain in the Trust because the trust instrument contained no such restriction. Malachowski 590 N.E.2d at 566. While I agree that the power to invest was solely in the hands of the Bank under the Inter Vivos Trust, I point out that the settlor had always opposed any sale of Lilly stock outside of his family. In fact, under the testamentary trust, any transfer of stock required the assent of the advisors to the trustee, William Hanley, Jerome, Jr., and Nellie.

I.C. 30-4-3-3 (1988) specifically permits a trustee to invest and reinvest the trust estate without court authorization, except in certain limited circumstances. There are two limitations on the trustee’s unbridled discretion. The first deals with co-trustees and is not applicable here. The second requires court authorization if the trustee’s duty as trustee conflicts with his individual interests, or his interests in another fiduciary relationship. I.C. 30-4-3-5(a) (1988). However, the trial court specifically found that “Bank One made the diversification decision based on the interests of the beneficiaries and not on its own interests.” (R. 1168).

I agree that the diversification was fully within the Bank’s power as trustee, that the Bank possessed sole investment authority under the Trust instrument, that over-concentrated accounts are considered imprudent to retain under general trust principles and that diversification into tax-exempt securities is considered prudent under general tax principles. However, if the duty was to diversify, the Bank should have proceeded in an aboveboard manner instead of misrepresenting the existence of a federal mandate in order to overcome the resistance of the Beneficiaries. For this reason, I cannot concur with the majority opinion.

Fraud

The majority next addressed whether the probate court’s findings on the Beneficiaries’ fraud claim were clearly erroneous and whether these findings support the court’s judgment.

The supreme court denied the Bank’s motion for summary judgment on the issue of its removal as trustee. The court found that the alleged misrepresentation of the mandate from the National Bank Examiner’s Audit Staff gave rise to a breach of the Bank’s fiduciary duty owed to the Beneficiaries and therefore precluded an entry of summary judgment for the Bank. Malachowski 590 N.E.2d at 565. On remand, the probate court removed the Bank as trustee because of the finding that Bank One misrepresented material facts to the Beneficiaries.

With regard to the fraud claim, the court entered the following conclusions of law:

2. Bank One failed to give the beneficiaries complete and accurate informa*796tion concerning matters related to the administration of the Trust.
4. Bank One was not required or mandated to diversify this Trust as a result of oral suggestions or comments made by the National Bank Examiners’ Audit Staff in 1970 and 1971. The assertion that there was a mandate, without explanation of the legal effect of the comments was misleading and constituted misrepresentation.
5. Bank One breached its duty to Plaintiffs when Bank One, by and through its agent, Thomas A. Jenkins, misrepresented the existence of a mandate from the National Bank Examiners requiring diversification of the 100% Eli Lilly stock concentration.
6. Bank One continued to misrepresent the existence of a mandate to diversify and failed to correct the misrepresentation in 1979 when it had an opportunity to do so.
7. The facts misrepresented were material to the beneficiaries in making decisions to effect their opposition to diversification.
8. The Plaintiffs had a right to rely and did rely, to their detriment, on Bank One’s misrepresentation of the existence of a National Bank Examiners mandate.
9. But for Bank One’s representation that it had been mandated by the National Bank Examiners to diversify the Trust, the beneficiaries would have brought a legal action to prevent the diversification before it occurred.
10. A legal action to prevent the diversification brought prior to the diversification would have prevented additional time, expense and other difficulties resulting from the great delay in the filing of these actions. To attempt to assess compensatory damages, however, would require impermissible speculation.
16. Plaintiffs’ breach of trust action was timely filed within two years of the date on which the cause of action accrued. Plaintiffs’ fraud action was timely filed within six years of the date on which the cause of action accrued.
18. Plaintiffs did not unduly delay filing their fraud action, but, instead, filed it originally in this Court on July 23, 1990[,] within ten months of receiving the Certificate of Non-Existence from the Comptroller of the Currency.
21. In making misrepresentations to the beneficiaries as to Federal Bank Examiners’ orders to diversify, the Bank has so jeopardized its trust relationship as to require removal.

(R. 1163-1167) (emphasis provided). The court’s order denying the Beneficiaries’ motion to correct errors provides as follows:

In these actions, plaintiffs sought compensatory and punitive damages as well as removal of defendant as trustee on several different grounds. Defendant was removed as trustee for failure to give the beneficiaries complete and accurate information concerning the trust. In regard to all other allegations, including an allegation of breach of its fiduciary duty to make prudent investments, the defendant prevailed.

(R. 1220-21).

Actionable fraud consists of five elements: (1) representation of a past or existing fact; (2) which was false; (3) which the fraud feasor knew to be false or made with reckless disregard as to its truth or falsity; (4) upon which the plaintiff reasonably relied; and (5) which harmed the plaintiff. R.R.S. II Enterprises, Inc. v. Regency Associates, 646 N.E.2d 56, 58 (Ind.Ct.App.1995), reh’g denied, trans. denied.

The probate court’s findings of fact are supported by the evidence to the extent that they include all of the necessary elements of fraud; however, the court’s judgment is not supported by its findings. Although the court removed the Bank as trustee due to its misrepresentation, the court failed to award damages. Representatives of the Bank, including the author of the “mandate” letter, Thomas Jenkins, testified that he would not, nor would any member of the Bank, know*797ingly tell half-truths to a beneficiary, but he also admitted that he had no recollection of the letter. Jenkins testified that he believed the contents of the letter to be true at the time, and therefore possessed no intent to deceive the beneficiaries. Larry Pitts, who was a member of the Internal Trust Committee and present at the October, 1971, meeting with the National Bank Examiner’s Audit Staff, testified that the Bank had no choice but to begin a program of diversification. The Bank had not obtained indemnity from all interested parties during the past year, and the Examiners demanded diversification or indemnification. Despite this self-serving testimony, my review of the record convinced me that there was no mandate, either written or verbal, from the National Bank Examiner to the Bank. Even assuming that the Bank did not intend to misrepresent the facts at the time the letter was written, the Bank allowed this fraud to continue and failed to correct it years later when it had the opportunity to do so. I believe that this evidence leads ineontrovertibly to a conclusion opposite to the one reached by the probate court and therefore I would reverse and remand with instructions for the court to calculate and award damages and attorney fees.

Compensatory Damages

I further find that the probate court’s refusal to award damages on the Beneficiaries’ fraud claim was error. As set out in detail above, the court removed the Bank as trustee and refused to award damages because of the speculative nature of the injury. Based on my assessment of the probative evidence, I do not find that the computation of damages requires undue speculation; rather, the court would need only calculate the difference between the actual value of the Trust as of the date of judgment and the value the Trust would have had if the corpus had remained invested 100% in Lilly stock. This court has repeatedly said that “[n]o particular degree of mathematical certainty is required in awarding damages so long as the amount awarded is supported by probative evidence, but it may not be based upon mere conjecture, speculation, or guess work.” Nahmias Realty, Inc. v. Cohen, 484 N.E.2d 617, 621 (Ind.Ct.App.1985) (citing Whiteco Properties, Inc. v. Thielbar, 467 N.E.2d 433, 438 (Ind.Ct.App.1984)). Furthermore, when doubt exists as to the exact proof of damages, such uncertainty must be resolved against the wrongdoer. Indiana Tri-City Plaza Bowl v. Glueck’s Estate, 422 N.E.2d 670, 678 (Ind.Ct.App.1981). In my opinion, had the Beneficiaries known of the misrepresentation, they would have brought an action to have the Bank removed as trustee before the diversification began.7

Punitive Damages

Because I would remand for an award of compensatory damages based on the Bank’s fraud, I would also remand for the trial court to consider the award of punitive damages. See Miller Brewing Co. v. Best Beers of Bloomington, Inc., 608 N.E.2d 975, 983 (Ind.1993), reh’g denied (there can be no punitive damage award in the absence of a compensatory damage award).

Whether to award punitive damages is a matter left solely to the fact finder’s discretion. There is no absolute right to punitive damages. Miller Brewing Co., 608 N.E.2d at 983. In order to recover punitive damages the record must disclose

clear and convincing evidence that the defendant ‘acted with malice, fraud, gross negligence, or oppressiveness which was not the result of mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing.’

Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 458 (Ind.Ct.App.1994) (citing Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 520 (Ind.1993)). Because punitive damages are awarded in addition to damages which compensate for the specific injury, the injured party has already been awarded all that he is entitled to as a matter of law. Orkin Exterminating Co. Inc. v. Traina, 486 N.E.2d *7981019, 1022 (Ind.1986). In determining whether punitive damages should be awarded, the court should consider whether defendant’s conduct was so obdurate that he should be punished for the benefit of the general public. Id.

Pursuant to my view that the Bank’s conduct satisfies all of the essential elements of fraud, I would remand for the probate court to consider the Plaintiff Beneficiaries’ request for punitive damages.

Attorney Fees

I would also remand to the probate court for an award of attorney fees. I.C. 30-4-3-22(e) (1993) provides for attorney fees when a beneficiary successfully maintains an action to remove a trustee.8

In the motion to correct errors, the probate court said the following with regard to its denial of attorney fees for the Beneficiaries: “In these circumstances, where defendant was denied reimbursement from the trust for any attorney fees or costs of litigation, an award of attorney fees to plaintiff per I.C. 30-4-[3]-ll or I.C. 30-4-3-22 would be inequitable and unreasonable.” (R. 1221).

Because the probate court removed the Bank as trustee due to its affirmative finding on the misrepresentation claim, the Plaintiff Beneficiaries are entitled to an award of attorney fees pursuant to I.C. 30-4-3-22(e).

CONCLUSION

To say that the Bank’s decision to diversify, standing alone, was prudent is meaningless in light of the fact that the Bank misrepresented the existence of the mandate in order to secure the Beneficiaries’ acquiescence. In my opinion, the issues cannot be divorced. I would conclude that the evidence leads incontrovertibly to a conclusion opposite to that reached by the probate court.

I would reverse the judgment of the probate court and remand with instructions to enter judgment for the Beneficiaries and to award compensatory damages based upon the difference between the value the Trust would have had but for the diversification and the actual value of the Trust,9 with post-judgment interest to be calculated at a certain date following all proceedings on remand. I would further instruct the court to award the Beneficiaries their reasonable attorney fees, the amount of which to be determined in a post-trial proceeding; and to consider the Beneficiaries’ request for punitive damages.

For the foregoing reasons, I dissent from the majority opinion.

. The evidence reflects that one of the beneficiaries under the Trust, Barbara Seawell, desired increased income from the Trust. Diversification in this case, aside from being a sound investment principle and method of risk reduction, also served the purpose of increasing income to the income beneficiaries. Diversification of the Trust did substantially increase the income generated by the Trust. Furthermore, the Bank's Common Trust Fund B invested almost exclusively in tax-exempt municipal bonds, which in turn produced tax-free income. The income beneficiaries enjoyed dramatic increases in their after-tax income in the years following the diversification. However, the beneficiaries were all substantially endowed with other assets and most did not want or need increased income.

. Of some relevance on this point is that Jerome, Jr. is also the beneficiary of a trust created by his grandfather on his mother’s side, William Han-ley. This trust was also funded with Lilly stock. Indiana National Bank was co-trustee under this trust. When disagreement arose regarding the trust, the parties sought court intervention and direction. The trust was eventually split in 1985 to accommodate the beneficiaries. The resulting trust was maintained with 100% Lilly stock.

. I.C. 30-4-3-22(e) provides that “[i]f a beneficiary successfully maintains an action under subsection (a) of this section ... he is entitled to a judgment for reasonable attorney's fees.” Subsection (a)(4) provides for an action to remove a trustee for cause and to appoint a successor trustee. I.C. 30-4-3-22(a)(4) (1988).

. The damages to be awarded should be reduced to two-thirds interest of the actual damage calculation due to the fact that the Seawell branch of the family and her two issue are not parties to this litigation.