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Click here for the full text of this decision FACTS:In the 1980s, James Kappus, his brother John Kappus and their father formed Kappus Farms, a partnership. Kappus Farms purchased a 49.482 acre tract of land in Anderson County. After their father died, James and John allowed the partnership to dissolve, but they continued to own the Anderson County property together. James and Sandra Kappus were married in the early 1990s. They had two children, Casey Lynn Kappus and James Montana Kappus. Their 2004 divorce was contested, and Sandra’s relationship with James’ family was very strained after the divorce. Over the years, several improvements were made to the Anderson County property; some solely by James, some by James and Sandra, and some solely by John. After his divorce from Sandra, James executed a new will that named John as independent executor. The will also created a testamentary trust. Casey Lynn and James Montana were named beneficiaries of the trust, and John was named the trustee. After James’ death in 2005, John began probate proceedings and was appointed independent executor. John intended to sell the Anderson County property and split the proceeds of the sale equally between himself and the estate. John found a buyer willing to pay $110,000 and assume a debt of approximately $7,000 for one of the improvements on the property, a double-wide mobile home. Sandra, on behalf of her children, opposed the proposed distribution of the proceeds from the sale of the property. Initially, she obtained an injunction to stop the sale. At the final hearing, however, she testified that she did not oppose the sale, only the distribution sought by John. Sandra presented evidence that James had placed improvements on the property, including a single-wide mobile home and a double-wide mobile home, that added value to the property. All parties agreed that the best alternative for selling the two mobile homes was to sell them with the property. Sandra also, on behalf of her children, sought to have John removed as independent executor because of alleged conflicts of interest, waste and mismanagement of funds. She presented evidence that John owned a portion of the Anderson County property and that the remaining portion of the property belonged to the estate. Additionally, she presented evidence that John did not handle a debt on a vehicle properly. Finally, she said she felt that John’s animosity toward her would make the situation unworkable. Based on many of the same reasons, Sandra also sought to have John removed as trustee of the testamentary trust created in James’ will. After hearing argument and testimony, the trial court found that the estate owned 58.59 percent of the Anderson County property and John owned the remaining 41.41 percent. The trial court denied the application to remove John as independent executor and trustee. Sandra requested findings of fact and conclusions of law, which the trial court prepared and signed. An appeal followed. HOLDING:Affirmed in part, reversed and rendered in part. First, Sandra contended that legally and factually insufficient evidence supported the trial court’s division of the Anderson County property. She argued that the estate owned at least 63.45 percent of the property instead of 58.59 percent as determined by the trial court. The court noted that the trial court heard evidence indicating which property belonged to James at the time of his death, which property belonged to John and which property was jointly owned. The trial court also had before it evidence of values of the land and major structures on the land. Thus, the court concluded that there was more than a scintilla of evidence that the estate owned 58.59 percent of the land and improvements. Therefore, Sandra’s legal sufficiency challenge failed. In addition, the court found that trial court’s finding that the estate owned 58.59 percent of the land and improvements was not so contrary to the great weight and preponderance of the evidence that it was clearly wrong and manifestly unjust. Accordingly, Sandra’s factual sufficiency challenge failed. Second, Sandra contended that the trial court erred in failing to remove John as independent executor of the estate. She asserted that because John had an ownership interest in the property, his interests conflicted with those of the beneficiaries. She argued that he could not adequately represent the estate while seeking to retain his own share of the estate. John’s shared ownership of the Anderson County property and improvements, the court stated, created a conflict of interest. The estate sought at least an additional 4.86 percent interest in the property, and John was adverse to the estate’s position. John and the estate asserted ownership over the same property. Under those circumstances, the court found that the trial court had no alternative but to remove John as independent executor. Because a conflict existed between the estate and John as to ownership of some of the property, John could not serve as independent executor. Third, Sandra asserted that the trial court erred in finding that the trust never came into existence. She argued that the trust was created and owned property at the death of James Kappus. Sandra also sought John’s removal as trustee of the testamentary trust established by James’ will. The court stated that the “trial court’s erroneous ruling regarding the creation of the trust prevented it from reaching the crux of this complaint.” John, the court again noted, asserted ownership of a portion of property claimed by the trust. “This attempted appropriation,” the court stated, “is a violation of a fiduciary duty, a repudiation of a trust relation to the property, and, accordingly, a ground for removal.” Therefore, the court held that the trial court abused its discretion when it allowed John, who had violated his fiduciary duty to the trust, to retain his position as trustee. Moreover, the court found that the trial court erred in denying Sandra’s application to remove John as trustee. OPINION:Hoyle, J.; Worthen, C.J., and Griffith and Hoyle, JJ.

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