In re Max Hacker Family Trust

No. 128,971 IN THE COURT OF APPEALS OF THE STATE OF KANSAS In the Matter of the MAX HACKER FAMILY TRUST. SYLLABUS BY THE COURT 1. The Trust Code, K.S.A. 58a-1010, authorizes claims against a trustee other than breach of trust but provides that independent claims under tort and contract law would be subject to the substantive law appropriate to those claims—including the applicable statute of limitations. 2. If a claim against a trustee may be viewed both as a tort claim that would be barred by the applicable statute of limitations for tort under K.S.A. Chapter 60, Article 5, yet also as a breach of trust claim that may survive the limitations specific to the Trust Code in K.S.A. 58a-1005, a court faced with summary judgment is obligated to view the claim as one that could survive the procedural bar. 3. K.S.A. 58a-1005 addresses the limitation of action against a trustee. Under K.S.A. 58a-1005(c), where the reporting requirements of subsection (a) do not apply, a judicial proceeding by a beneficiary for breach of trust must be commenced within two years after the first to occur of: (1) The removal, resignation, or death of the trustee; (2) the termination of the beneficiary's interest in the trust; or (3) the termination of the trust. 1 4. The limitation set forth in K.S.A. 58a-1005(c)(2) does not state that the defining event is the termination of a beneficiary's interest in some part of the corpus of the trust but the termination of all interest in the trust. As a result, the sale or transfer of some of the property held by the trust, even if done in violation of the terms of the trust, does not trigger K.S.A. 58a-1005(c)(2) so long as some property remains in the trust. 5. Where a trust contains clear provisions for the creation of a sub-trust on the death of the settlor, such sub-trust is created automatically upon the death of the settlor. This comports with the "other disposition taking effect upon the settlor's death" under K.S.A. 58a-401(1), outlining how a trust may be created. Although a trust is typically not created until it receives property, this automatic transfer operates as a pourover devise and constitutes the property interest creating the trust. 6. A sub-trust created by the express language of a trust directing its creation upon the settlor's death can come into existence immediately at the settlor's death and not necessarily only upon the later transfer of title to property into the newly created trust by the trustee. Administrative requirements for the trust, such as tax requirements, are a separate and independent requirement for the administration of the trust, which is distinct from the trust's creation. Appeal from Trego District Court; GLENN R. BRAUN, judge. Oral argument held April 14, 2026. Opinion filed July 24, 2026. Reversed and remanded with directions. Christopher J. McGowne and Craig L. Uhrich, of McGowne Uhrich LLC, of Oakley, for appellant Max Hacker Family Trust, by and through Terena Ranee Becker as beneficiary, and Terena Ranee Becker in her individual capacity. 2  Christopher W. Sook and Michael J. Baxter, of Jeter Law Firm LLP, of Hays, for appellee Janice K. Hacker as trustee of the Max Hacker Family Trust. Before COBLE, P.J., HURST, J., and PAULA HOFAKER, District Judge, assigned. COBLE, J.: As the district court aptly observed: "This case is an example of money and property dividing a family." Terena Becker, daughter of Max and Janice Hacker and a named beneficiary of the Max Hacker Family Trust, appeals the district court's order granting summary judgment in favor of Janice Hacker, trustee, on Terena's various legal challenges to her mother's alleged misappropriation of trust assets. Terena contests the district court's application of the statutes of limitations, the district court's conclusion that Terena lacked standing to sue, that Janice did not wrongfully transfer trust assets, and that Janice was entitled to reimbursement of her attorney fees. On review, we find that the statute of limitations did not prevent Terena's action and she possesses standing, and that questions remain which preclude summary judgment on the merits of her claims. All these issues are examined in detail below. FACTUAL AND PROCEDURAL BACKGROUND In 2018, after Max Hacker received a diagnosis of a terminal illness, he and his wife, Janice, sought legal assistance in estate planning. Their attorney at that time advised and assisted with the creation of two inter vivos trusts: the Max Hacker Trust and the Janice K. Hacker Trust. Both trusts were revocable during the lives of the grantors, and each trust provided the grantor unlimited income throughout his or her lifetime. Each spouse was listed as the successor trustee of the other's trust if they survived the other. The primary difference between Max's trust and Janice's trust is that upon Max's death Max's trust allowed the couple's two children, Terena Becker and Timothy Hacker, an allowance of $3,000 per month throughout their lives but left the balance of the trust 3 corpus to his grandchildren. Janice's trust, though, upon her death divided the corpus between Terena and Timothy. Originally, Max and Janice divided their collective assets equally among the two trusts. In separate, mirror documents titled "Schedule A" attached to each trust, five investment accounts owned by the couple were to be divided equally ("undivided one- half") between the Max Hacker Trust and the Janice K. Hacker Trust. In separate, mirror documents titled "Schedule B" attached to each trust, Max and Janice each signed Deeds of Transfer expressing their intent to transfer all their respective interests in personal property and real estate into the two trusts, including "all real and personal property that [they] may acquire" thereafter. In compliance with this intent, one month after the Trusts came into existence, Max and Janice executed a quitclaim deed of their real property, transferring undivided half-interests of the property to each of their respective trusts, in July 2018. After learning that his illness had progressed and that he had a short time to live, Max returned to his attorney to modify the property in each of the trusts, based on the recommendation of his investment advisor. The advisor recommended consolidation of most of the investment portfolios into one trust to take advantage of the taxation rules after Max died. As a result, in August 2018, Max and Janice moved most of their investment income into Max's trust, including investments held in Janice's name. Max and Janice did not transfer a similar amount of property from Max's trust into Janice's trust, aside from the Oppenheimer Fund worth $110,419.55, at the time. This represented the only investment account transferred into the Janice K. Hacker Trust from the investments identified on Schedule A of the two trusts. Although each trust still retained undivided half-interests in the couple's real property, with the allocation of the investments into Max's trust, the corpus of Janice's trust was of significantly lower value than the corpus of Max's trust. The trusts were not revised again before Max died on March 15, 2019. 4  By the terms of the Max Hacker Trust, upon Max's death, Janice took on dual roles as trustee of both the Max Hacker Trust and her own trust. By the terms of Article V of the Max Hacker Trust, upon Max's death if Janice survived him, the trust property was to be disposed of in three primary ways, by transfer of tangible nonbusiness trust property to Janice and creation of two sub-trusts: "A. Tangible, Nonbusiness Trust Property. Trustee shall transfer all tangible, nonbusiness trust property, including (but not by limitation) jewelry, clothing, furniture, furnishings, hooks, pictures, and automobiles, to Grantor's wife. "B. Max Hacker Family Trust. 1. Trustee shall set aside as a separate trust to be named the Max Hacker Family Trust, the largest amount that can pass free of United States Estate Tax by reason of the unified credit and the state death tax credit . . . . .... "C. Max Hacker Marital Trust. Trustee shall set aside the remainder of the trust property as a separate trust to be named the Max Hacker Marital Trust . . . ." With regard to the two sub-trusts, the Max Hacker Marital Trust ("Marital Trust") was to be created only if needed to avoid adverse tax consequences which could result from placing all the property into the Max Hacker Family Trust ("Family Trust"). But the collective assets and tax rules at the time of Max's death did not require the creation of the Marital Trust, as the trust assets would fit into the Family Trust without adverse tax consequences. The parties dispute whether the Family Trust was created automatically by the terms of the Max Hacker Trust at Max's death or whether Janice, the successor trustee, was required to take specific action to create the Family Trust. After Max's death, Janice sought advice from a different attorney who had not drafted the trusts, Stacey Seibel, about administering the Max Hacker Trust. Seibel claimed that, though Janice did not 5 formally open a separate Family Trust, Janice administered the remaining property in the Max Hacker Trust under the terms of the Family Trust. Seibel advised Janice that the Max Hacker Trust permitted the trustee to facilitate tax planning and to combine trusts for ease of administration. As a result, Seibel believed although Janice was obligated to administer the trust under the terms of the Family Trust, she could, in effect, simply treat the Max Hacker Trust as the Family Trust. Seibel claimed that although Janice did not formally open a separate Family Trust, after Max's death she administered the Max Hacker Trust under the terms of the Family Trust. In concluding this was appropriate, Seibel relied on the portion of the Kansas Uniform Trust Code, K.S.A. 58a-816(3), which allows the trustee to exchange or change the character of trust property, and Article X of the Max Hacker Trust related to the powers of a trustee, specifically Section J, which reads: "J. Power to Divide or Consolidate Trust. Trustee, in Trustee's sole discretion, has the power to divide property in any trust being held under this instrument, and the power to consolidate the property in any number of trusts being held under this instrument, into one or more trusts as Trustee deems advisable to facilitate the operation of the trust or to facilitate tax planning." Seibel also helped Janice to revise her trust. Based on Max and Janice's reported initial intent to divide their property relatively equally, then the unequal investments moved before Max's death, Seibel advised Janice that she could transfer all interests in real property from the Max Hacker Trust to her trust to balance the values of the corpus. Seibel also believed that moving the real estate into a single trust, rather than handling half-interests of the real estate between two trusts, made management of the real estate easier and less costly and simply consisted of "moving different classes of assets between the two trusts." 6  In September 2019, Seibel prepared a trustee's deed which Janice executed, transferring the undivided half interest in real property held in Max's trust into Janice's trust. Janice did not compensate the Max Hacker Trust for the transfer of this property. According to Seibel, this equalized the values of the two trusts, since the investments remained within the Max Hacker Trust, while the real property was in Janice's trust. Seibel also opined that Janice was not required to provide an accounting report to her children and grandchildren about the assets in the trust at the time of Max's death because the accounting provision in the Max Hacker Trust is ambiguous, and the Uniform Trust Code requires an accounting only to the spouse, if the surviving spouse and descendants are the only beneficiaries. Seibel assisted Janice in modifying her trust, which she restated on September 11, 2019. In her updated trust, Janice continued to treat Terena and Timothy equally, with each to receive an equal, one-half share of the trust assets, in trust, to be held and paid for their benefit during their lifetimes, and for their children's benefit during their respective lifetimes. In October 2022, Terena—on behalf of the "Max Hacker Family Trust" as its beneficiary—filed suit against her mother, individually and as trustee of the Max Hacker Trust, and against Timothy, individually, for misappropriation of trust assets. Terena brought various claims against Janice, including breach of fiduciary duty, breach of trust, conversion, embezzlement, and failing to provide the beneficiaries with regular accounting. Terena claimed Timothy committed breach of trust and conversion. In January 2024, Terena amended her petition, raising the same claims but adding her three children as additional plaintiffs. After Terena filed this lawsuit, Janice again modified her trust, excluding Terena as a beneficiary of Janice's trust and arranging for the share Terena would have received 7 under prior versions of the Janice K. Hacker Trust to be distributed in trust for the benefit of Terena's children. In November 2022, Janice sold approximately 40 acres of the real property held in the Janice K. Hacker Trust to unrelated parties, but the remainder of the real estate remains in the Janice K. Hacker Trust. Terena testified that she and her husband knew that Janice wanted to sell the property prior to May 2021, before filing the lawsuit, and they suggested to Janice that instead of selling the acreage, she distribute the land to them and some other property to Timothy, but Janice did not. After selling the land, Janice placed the proceeds of the sale into her trust. None of the proceeds were placed in the Max Hacker Trust. No other real estate transfers have occurred since Max's death, aside from the 2019 transfers from Max's trust to Janice's trust, and the sale of the 40 acres in November 2022. Some personal property, including farm equipment, was sold by online auction after Max's death. Janice had also drawn funds from the Max Hacker Trust to be used for her own support and maintenance. The withdrawals from the trust have exceeded the income generated, although the total value of the investments in the Max Hacker Trust had increased, as of December 2022, more than 20 percent. After discovery, the parties filed competing summary judgment motions before the district court. The parties argued their respective positions at a hearing on November 6, 2024. At this hearing, Terena's counsel conceded that they did not oppose Timothy's motion for summary judgment and that summary judgment was appropriate on those claims. Terena's counsel also conceded that Janice's individual liability was not supported and so those claims should be dismissed. As a result, the remaining claims involved only Janice as trustee. 8  Following the hearing, the district court issued its summary judgment ruling in favor of Janice and denied Terena's motion. The district court largely adopted Janice's version of the facts, finding Terena did not properly contest those facts. The district court, however, also adopted most of Terena's facts, except specifically identified portions controverted by Janice. The district court granted summary judgment in favor of Janice on three bases: (1) the petition was barred by the applicable statute of limitations; (2) Terena, as a beneficiary of the Family Trust, lacked standing because the Family Trust was never created and Terena could not sue in her individual capacity; and (3) on the merits, Janice did not breach her fiduciary duties or the terms of the trusts in her execution of her duties as trustee of the Max Hacker Trust. In a separate order, the district court awarded attorney fees to Janice based on K.S.A. 58a-1004 and authorized repayment of Janice's costs as trustee from the Max Hacker Trust. But the court isolated some of the attorney fees and litigation costs and required Terena, personally, to repay those amounts as sanctions for discovery violations and filing misconduct; specifically, that Terena "may have perpetrated fraud upon counsel and the court concerning the addition of her children . . . as named plaintiffs in the amended petition." Terena timely appealed the summary judgment and attorney fees and sanctions rulings. Subsequently, the district court entered an order approving the reasonableness of Janice's requested attorney fees and costs and awarded Janice $8,466.33 in attorney fees and $1,130.98 in costs for a total sanction of $9,597.31 payable by Terena. Terena did not file another notice of appeal, but she filed a motion seeking to stay the sanctions order pending resolution of this appeal. Our court remanded the case to the district court for hearing on the requested stay. On remand, the district court held a hearing during which it ordered it would issue a stay upon Terena's posting of a supersedeas bond and permitted her 30 days in which to 9 do so. The bond was conditioned on the amount of the original sanction of $9,597.31 plus interest accumulating during the appeal, ultimately bringing the required bond coverage to $11,200.72. On April 2, 2026, before this appeal was argued, Terena's counsel filed a Status Update, reporting that the district court had "ruled against a stay" and that Terena "ultimately settled the outstanding debt and thus the matter was addressed. All related motions are moot." As discussed in Section V below, we ordered the parties to provide supplemental briefing on the issue of acquiescence to the sanctions order. We have now considered all briefing and are prepared to rule. REVIEW OF TERENA'S APPELLATE CHALLENGE I. Scope of Review As we examine the issues on appeal, we must first recall the legal standards applicable to our review of a summary judgment ruling. An appellate court's standard of review on an appeal from summary judgment is well-established. When a party moves for summary judgment, a district court is required to resolve all reasonable facts and inferences in favor of the party against whom summary judgment is sought. If the pleadings, available discovery, and affidavits reveal the lack of a genuine issue of material fact so that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. A party opposing summary judgment, however, must present evidence establishing a dispute of material fact, meaning that the facts subject to dispute affect the conclusive issues in the case. See Zaragoza v. Board of Johnson County Comm'rs, 320 Kan. 691, 697, 571 P.3d 545 (2025) (citing Fairfax Portfolio LLC v. Carojoto LLC, 312 Kan. 92, 94-95, 472 P.3d 53 [2020]). An appellate court applies this same standard and conducts an unlimited review of the district court's summary judgment 10 ruling. Hammond v. San Lo Leyte VFW Post #7515, 311 Kan. 723, 727, 466 P.3d 886 (2020). As noted above, all parties filed competing motions for summary judgment before the district court. But, during the summary judgment hearing, Terena conceded that she had failed to establish any claim of individual liability by either Timothy or Janice and that those individual parties should be dismissed from the lawsuit. Janice did not cross- appeal the summary judgment rulings. Accordingly, we only consider the court's rulings on summary judgment pertaining to Janice's liability as trustee. The district court noted that Terena's response to Janice's motion for summary judgment did not comply with Kansas Supreme Court Rule 141 (2026 Kan. S. Ct. R. at 220). This rule requires numerated paragraphs corresponding to the factual allegations presented by the movant registering whether the facts are admitted or controverted. As a result, the district court adopted the uncontroverted facts submitted by Janice. The court also adopted the uncontroverted factual statements in Terena's motion for summary judgment but excluded those facts specifically controverted by Janice. Terena does not challenge the district court's finding that she violated Supreme Court Rule 141 by failing to properly controvert the defendants' factual allegations in Janice's memorandum in support of summary judgment, so any such challenge is abandoned. In re Adoption of Baby Girl G., 311 Kan. 798, 803, 466 P.3d 1207 (2020). The Kansas Supreme Court, consistent with Rule 141, has directed appellate courts not to entertain an attempt to controvert facts on appeal that were not properly controverted in the district court. Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, 666-67, 809 P.2d 1216 (1991). But though they may take issue with one another's statements, neither party challenges the district court's factual findings, so any such challenge is likewise abandoned. 11  Within this framework, we address Terena's appellate challenges. II. Statute of Limitations and Procedural Bars Terena first challenges the district court's application of the statute of limitations to bar her remaining claims against Janice, as trustee. To address her claim, we first identify the limitations argument presented to the district court and the court's ruling. In her motion for summary judgment, Janice argued that any of Terena's claims "related to any personal property should be barred by the statute of limitations or estoppel." (Emphasis added.) In this argument, Janice referenced the distribution of Max's personal property between Terena and Timothy, and the auction of personal property in 2019. But Janice also specifically referenced the conveyance of real estate from Max's trust to Janice's trust in September 2019. Janice contended that if "Terena was not satisfied with the distribution of personal property or the transfer of the real estate, she could have taken action in 2019 instead of waiting until October 2022 to file suit," relying solely on the two-year limitations period found in K.S.A. 60-513(a)(2). Terena responded, in part, that Janice relied upon the wrong statutory limitations period, and that instead of K.S.A. 60-513, the Kansas Uniform Trust Code (Trust Code) and K.S.A. 58a-1005 must apply. The district court found that Terena was correct and that, rather than K.S.A. 60- 513(a)(2) applying to bar her action, the court must apply K.S.A. 58a-1005 of the Trust Code. However, the court found Terena's claims barred under the Trust Code. Relying on our court's opinion in Miller v. Miller, No. 125,952, 2024 WL 4521959 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 862 (2025), the court found that Janice's transfer of all real estate from Max's trust to her trust as recorded with the register of deeds on September 23, 2019, commenced the running of the limitations period. Because this lawsuit was not filed until October 21, 2022, the suit was filed outside the two-year 12 statute of limitations, barring the lawsuit. Additionally, because Janice failed to transfer any assets to the Family Trust, the Family Trust was devoid of any assets, "and thus the Family Trust beneficiaries' interest was terminated. The same logic [from Miller] applies, and the statute would have commenced in 2019 which bars these claims as well." Finally, the court found: "If Terena is making any claim for breach by Janice related to the auction of the farm machinery or transfers of personal property to herself and her brother, those claims too are barred as they are more than two years prior to the filing of the lawsuit. In addition, Terena participated in the division of personal property and received the benefit from that transfer, so she is estopped from any claims against her mother related to those transfers." This case is made more difficult by Terena's imprecise claims and both parties' briefing, each of which occasionally conflates well-known legal terminology, such as "real" and "personal" property. For example, Janice's Memorandum in Support for Summary Judgment raises the statute of limitations defense to claims related to "any personal property"—yet then goes on to address the transfer of real estate. The apparent reason behind this conflation is elucidated later in this opinion but at this juncture, we merely point out the difficulties created by such usage. Even so, both parties argued that a particular limitations period applied to all claims, even though they disagree about which limitations period applied. In its summary judgment ruling, the district court held that the general statute of limitations found in Chapter 60 did not apply to the claims against the trustee and that those claims were governed by the Trust Code. We are tasked with deciding first whether the district court was correct to apply K.S.A. 58a-1005(c)(2), and second whether it interpreted the statute correctly when finding it barred Terena's claims. 13  The interpretation and application of a statute of limitations is a question of law, subject to plenary appellate review. Schoenholz v. Hinzman, 295 Kan. 786, 791, 289 P.3d 1155 (2012); A.S. v. Vineyard Church of Overland Park, 65 Kan. App. 2d 756, 760, 573 P.3d 728 (2025). II.A. Applicable Limitations Law Our discussion of the appropriate limitations law necessarily begins by addressing the nature of the claims before us. Janice argues that Terena filed this action asserting, among other causes, conversion and embezzlement, two specific causes of action in tort law dealing with disposition of personal property, and because these are tort claims, K.S.A. 60-513(a)(2) should apply to those claims alleged outside the scope of a breach of trust claim. Although the specific nature of the claims Terena asserts is less than clear, we find that essentially all claims brought in this claim sound as breach of trust. Under the Trust Code, K.S.A. 58a-1010 authorizes claims against a trustee other than breach of trust but indicates that independent claims under tort and contract law would be subject to the substantive law appropriate to those claims—including the applicable statute of limitations. See, e.g., K.S.A. 60-512(1); K.S.A. 60-513(a)(2) (conversion); K.S.A. 60-513(a)(3) (fraud); K.S.A. 60-513(a)(4) (tort injuries). Terena raised claims against Janice for embezzlement and conversion, but these are essentially the same claim because embezzlement is a crime, not a civil cause of action. See Blair Milling Co. v. Fruitager, 113 Kan. 432, 436, 215 P. 286 (1923) (discussing legality of contract to repay embezzled funds); Miller, 2024 WL 4521959, at *21 (restating "embezzlement" as "conversion"). 14  In its ruling, the district court found: "Based upon the court's ruling on the issues of statute of limitations and standing to sue, there is no need to reach the questions concerning conversion or embezzlement of real property but the court, from reading the applicable law, does not believe that the transfer of the real estate by Janice would constitute grounds for claims of embezzlement or conversion." (Emphases added.) Terena does not challenge this ruling on appeal, and as a result, we do not reach it. In re Adoption of Baby Girl G., 311 Kan. at 803 (an issue not briefed is deemed waived or abandoned). Under K.S.A. 58a-1010(b), Terena's purported tort claims against Janice for embezzlement and conversion are necessarily claims against Janice personally, not in her capacity as trustee. ("A trustee is personally liable for torts committed in the course of administering a trust . . ."). But Terena waived any claims against Janice personally at the summary judgment hearing. Even if she had not waived such tort claims, if Terena brought a tort claim for conversion to assert damages resulting from the distribution of personal property, the two-year limitations period found in K.S.A. 60-513(a)(2) would apply to those claims. But Terena admitted her participation in both the division of personal property and the auction of machinery and other items in 2019—more than two years prior to the filing of her lawsuit. For these reasons, summary judgment in favor of Janice, individually, was appropriate on any asserted separate tort claim of conversion or embezzlement, albeit on different grounds than those cited by the district court. Nicholson v. Mercer, 319 Kan. 712, 717, 559 P.3d 350 (2024) (reviewing court may affirm judgment as correct for the wrong reason). Even so, we are not convinced that Terena actually asserted separate tort claims. In her petition, Terena claimed that Janice both embezzled and converted trust property for her own benefit by specifically failing to properly transfer property into the Family 15 Trust and instead "transferring the property into her personal trust." While Terena uses the terms more commonly observed in tort law—conversion and embezzlement—her usage of those terms sounds in trust law. We observe the use of these terms in the Trust Code; for example, in K.S.A. 58a-1002(a)(3), "Damages for breach of trust," the law permits damages "if the trustee embezzles or knowingly converts to the trustee's own use any of the personal property of the trust, the trustee shall be liable for double the value of the property so embezzled or converted." (Emphases added.) The claims which Terena brought in her petition mirror this language found in the Trust Code, and so they sound entirely in trust law, not tort law, and specifically, are more properly considered as breach of trust claims. While we are not to create claims for a litigant, we must interpret claims on summary judgment in a light most favorable to the nonmoving party. Zaragoza, 320 Kan. at 697. If Terena's claim may be viewed as a tort claim—which would be barred by the applicable statute of limitations—but also as a breach of trust claim—which may survive the applicable statute of limitations—a court faced with summary judgment is obligated to view the claim as one that could survive the procedural bar. As a result, we look to how the law imposes a limitations period on breach of trust claims. Article 10 of the Trust Code governs the liability of a trustee and the rights of those dealing with the trustee. Consequently, because Terena's claims rely on breach of trust, the limitations specific to the Trust Code in K.S.A. 58a-1005 apply. See K.S.A. 58a-1005(a) and (c) (designating that the provisions apply to "breach of trust" claims). K.S.A. 58a-1005 provides: "(a) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the beneficiary of the time allowed for commencing a proceeding. 16  "(b) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or representative knows of the potential claim or should have inquired into its existence. "(c) If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within two years after the first to occur of: (1) The removal, resignation, or death of the trustee; (2) the termination of the beneficiary's interest in the trust; or (3) the termination of the trust." Because Janice never provided any of the beneficiaries with reports, Terena contends that subsections (a) and (b) cannot apply. This conclusion is supported by the statutory language and an unpublished decision of a panel of this court. See Miller, 2024 WL 4521959, at *8. In Miller, several siblings quarreled over the administration of their mother's estate. Two siblings argued that the only actionable claim against them related to the transfer of mineral interests and asserted a limitations defense, which the district court rejected. On appeal, our court found that, "[u]nder K.S.A. 58a-1005(a), the limitations period begins when a potential claim is 'adequately disclosed' in a trust report. Here, subsection (a) does not apply because [the trustee] never created or filed any trust reports and gave no notice to his siblings of the distributions during his time as trustee." 2024 WL 4521959, at *8. Instead, the court found that subsection (c)(2) applied, because the beneficiaries' interests in the trust were terminated when the trustee removed the remaining assets of the trust by transferring them to himself and another sibling in 2014. Although the trustee had begun "to syphon trust income to himself" and a sibling years earlier, the only event that triggered the statute of limitations occurred when he transferred the entirety of trust assets to himself in 2014. 2024 WL 4521959, at *8. Because the lawsuit was filed in 2015, the two-year statute of limitations in K.S.A. 58a- 1005(c) did not bar the action. 17  Here, as in Miller, because Janice admitted she did not provide the beneficiaries with any report, K.S.A. 58a-1005(c) provides the applicable limitations period. II.B. K.S.A. 58a-1005(c) Does Not Bar Terena's Claims A plain reading of K.S.A. 58a-1005(c) provides that the two-year limitations period does not begin to run until the first of the three enumerated circumstances occurs: (1) removal, resignation, or death of the trustee; (2) termination of the beneficiary's interest in the trust; or (3) the termination of the trust. Clearly, Janice has not died, been removed as trustee, or resigned her position as trustee of the Max Hacker Trust or the Family Trust, so subsection (c)(1) does not apply. And, whether it be Max's original trust or the Family Trust as discussed below, some iteration of the Max Hacker Trust continues. The matter is complicated because Janice apparently operated the Family Trust in the name of the Max Hacker Trust, but because we do not interpret the facts of this case to have somehow terminated the Family Trust by failing to create the sub-trust at Max's death, subsection (c)(3) does not apply. So, the limitations question then revolves around the district court's application of subsection (c)(2). Relying on Miller, the district court concluded that Terena's causes of action for breach of trust commenced on three dates—first, when Janice transferred Max's undivided one-half interest in the real property from the Max Hacker Trust to the Janice K. Hacker Trust—September 19, 2019, of which a deed was filed and gave "constructive notice to the world at large," citing LCL, LLC v. Falen, 308 Kan. 573, 589, 422 P.3d 1166 (2018). Second, when Janice failed to create the Family Trust by not transferring the remaining corpus of the Max Hacker Trust into the Family Trust in 2019, the district court found the trust was devoid of assets and so the limitations period commenced. Finally, the district court determined the limitations period commenced when Janice auctioned off personal property held by the Max Hacker Trust or distributed the personal property to Timothy or herself from the Max Hacker Trust in 2019. 18  We disagree with the district court's interpretation of LCL, as rather than finding as a matter of law that the filing of a deed offered constructive notice to the world and unquestionable commencing of a limitations period, our Supreme Court actually found that constructive notice is of the contents of the deed, but this does not equate with a factual finding of ascertainable knowledge of an actionable injury from that deed, and the court was "unwilling to convert a question of fact into a question of law in this way." 308 Kan. at 587. The greater difficulty with the district court's position, though, is that none of the three actions referenced by the district court terminated Terena's interest or that of any other beneficiaries in the Max Hacker Trust or the Family Trust as required for K.S.A. 58a-1005(c) to apply. Notably, subsection (c)(2) does not state that the defining event is the termination of a beneficiary's interest in some part of the corpus of the trust but the termination of all interest in the trust. As a result, the sale or transfer of some of the property held by the trust, even if done in violation of the terms of the trust, does not trigger K.S.A. 58a-1005(c)(2) so long as some property remains in the trust. In this sense, the present case is distinguishable from Miller. In Miller, the trustee removed the assets of the trust by deeding himself the mineral interest leases after claiming the royalties and interest previously paid on the leases. The court noted that the transfer of the mineral interest leases left no assets in the trust to accrue for the beneficiaries of the trust, thereby effectively terminating their interests in the trust as of the date of the transfer. Here, none of the transfers completely divested Terena of her interest in the trust so long as some property remained. The more complicated matter is the effect of Janice's failure to create the Family Trust. This question is at the heart of the standing issue addressed below. Sufficient for this discussion, we see no factual scenario where Terena's interest was terminated. Janice's failure to create the Family Trust did not extinguish Terena's interest in that trust. On the one hand, the record establishes that Janice intended to administer the existing Max Hacker Trust under the terms of the Family Trust, and Terena possessed a beneficial 19 interest in both trusts. On the other hand, logically and legally, a trust must exist before it may be terminated. If the Family Trust never existed, Terena's interest in that trust could not be terminated. Since the Max Hacker Trust existed at the time of trial and Janice never revoked Terena's beneficial interest in Max's trust, the two-year statute of limitations simply is not triggered by K.S.A. 58a-1005(c)(2) under the circumstances of this case, and we find the district court erred in i