Anderton v. Boren

• Decision Date: 21 December 2017
• Docket Number: No. 20160145-CA,20160145-CA
• Citation: 414 P.3d 508
• Court: Utah Court of Appeals
• Parties: Sharrol ANDERTON, Mary Blanchard, Terry Christensen, and Duane Boren Jr., Appellants, v. David L. BOREN and Sherron L. Boren, Appellees.

414 P.3d 508

Sharrol ANDERTON, Mary Blanchard, Terry Christensen, and Duane Boren Jr., Appellants,

v.David L. BOREN and Sherron L. Boren, Appellees.

No. 20160145-CA

Court of Appeals of Utah.

Filed December 21, 2017

Russell T. Monahan, Salt Lake City, Attorney for Appellants.

Clark B. Allred and Brad D. Brotherson, Vernal, Attorneys for Appellee David L. Boren.

Diana J. Huntsman, Sherri L. Walton, Salt Lake City, Jack D. Smart, D. Karl Mangum, Attorneys for Appellee Sherron L. Boren.

Judge Michele M. Christiansen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

CHRISTIANSEN, Judge:

¶1 Sharrol Anderton, Mary Blanchard, Terry Christensen, and Duane Boren Jr. (collectively, Appellants) appeal the district court's grant of summary judgment in favor of David L. Boren and Sherron L. Boren (collectively, Appellees). We affirm and remand to the district court for the limited purpose of calculating Appellees' attorney fees incurred on appeal.

BACKGROUND

¶2 Duane Boren Sr. and his wife, Sherron, had six children—Sharrol, Mary, Terry, Duane Jr., David, and Lucky. In 1980, Duane Sr. and Sherron created the Duane Boren Family Living Trust (the Trust). At that time, the Trust was funded with only a life insurance policy, but additional assets were later added to the Trust. A joinder agreement, signed contemporaneously with the trust agreement and incorporated by reference, appointed Sharrol, Mary, Duane Jr., and Terry Lee Monks as co-trustees.

¶3 In 1985, Duane Sr. and Sherron signed an amendment to the Trust appointing Sherron as trustee. Duane Sr. later crossed out Sherron's name and wrote in David's name.¹ A second amendment, executed in 1990, designated David as successor trustee and changed the distribution of the assets by reallocating the assignment of mineral rights; assigning "all agricultural equipment, all livestock, all water rights and the surface rights to all cultivated, pasture or hay ground" to David and Lucky² and the remaining "waste ground" real estate to the other children; and dividing the remainder of the estate equally among the children.

¶4 Duane Sr. died in December 1992. At the time of Duane Sr.'s death, he and Sherron "owned a farm with some equipment and mineral rights." Duane Sr.'s undivided one-half interest in the couple's property was distributed to David as trustee of the Trust. Sherron owned the other one-half interest. The Trust assets were to be used for the benefit and at the direction of Sherron during her life.

¶5 From 1993 to the present, David has managed the Trust properties and properties owned by Sherron with her input. At some point, Sherron deeded half of her undivided one-half interest in the farm to David. In 2011, David, as trustee, and Sherron entered into a formal agreement acknowledging that David had "been operating and managing the Farm." The agreement granted David a salary of $1,200 per month "for operating and managing the farm" "on a part time basis," authorized the lease of farm equipment from David, and permitted David to graze his cattle on the farm.

¶6 From 1993 to 2012, Appellants did not request an accounting from David. In October 2012, an attorney for Duane Jr. requested such information from David. Duane Jr.'s attorney and Appellants were provided with an inventory of the Trust, accountings for the Trust, and tax returns from 2008 through 2011, and were subsequently provided with accountings and tax returns for 2012, 2013, and 2014.

¶7 In 2014, Appellants filed a complaint against Appellees David and Sherron Boren, alleging that David had "stolen and embezzled money from the Trust," distributed Trust property to himself, forged documents, coerced Sherron to sign documents, given himself an "unauthorized salary," commingled his assets with those of the Trust, and made an untruthful accounting. Based on these allegations, Appellants brought causes of action for breach of the Trust, breach of fiduciary duty, accounting, and negligent misrepresentation. Appellants also sought a declaratory judgment to have Appellees "removed as Trustees of the Trust."

¶8 In January 2015, Appellees deposed Appellants. In their depositions, each of the Appellants "admitted they did not have any support for the allegations [in their complaint], or admitted that they had not reviewed the accountings and supporting documents provided to them concerning the Trust." "Based on [Appellants'] own testimony that they had no facts to support their claims," Appellees moved for summary judgment.

¶9 In opposition to Appellees' motion for summary judgment, Duane Jr. filed a declaration (the Declaration) in which he made additional assertions regarding David's actions. Appellees filed a motion to strike the Declaration on the ground that the Declaration attempted "to contradict Duane Boren Jr.'s deposition testimony, ... lack[ed] admissible facts, and ... relie[d] on inadmissible suppositions, opinions, argument and innuendo." The district court granted Appellees' motion to strike on two alternative bases: first, that the Declaration contradicted Duane Jr.'s deposition testimony and, second, that the Declaration did "not provide facts on the pertinent issues, but merely the opinions of Duane Boren Jr."

¶10 After striking the Declaration, the court also granted Appellees' motion for summary judgment. The court determined that all four Appellants had "admitted during their depositions that there were no facts to support" their allegations of embezzlement, forgery, self-dealing, and coercion. The court further determined that, because Appellants were not income beneficiaries, they were not entitled to an accounting under the terms of the Trust. The court also concluded that Appellants had made "no showing" that David had unlawfully commingled his personal assets with those of the Trust. Finally, the court determined that there was "no evidence to support the argument that the farm has been operated in contravention [of Sherron's] wishes, or that the salary paid to [David] for managing the Trust was not appropriate. The fact that the farm had a tax loss, without more, does not support a claim of mismanagement." Because the court determined that there were no facts to support Appellants' claims, it granted summary judgment in favor of Appellees. The court also awarded Appellees attorney fees pursuant to Utah Code section 75-7-1004. See infra ¶ 32. Appellants challenge the district court's ruling.

ISSUES AND STANDARDS OF REVIEW

¶11 Appellees dispute Appellants' standing to bring this action, so we must address that question before reaching the merits of Appellants' arguments. See Jones v. Barlow , 2007 UT 20, ¶ 12, 154 P.3d 808 ("Standing is a jurisdictional requirement that must be satisfied before a court may entertain a controversy between two parties." (brackets, citation, and internal quotation marks omitted)). "[T]he question of whether a given individual or association has standing to request a particular relief is primarily a question of law[.]" Kearns-Tribune Corp. v. Wilkinson , 946 P.2d 372, 373 (Utah 1997). To the extent that there are "factual findings that bear on the issue" of standing, we "review such factual determinations made by a trial court with deference." Id. at 373–74. We ultimately conclude that Appellants have standing, and we therefore reach the merits of Appellants' arguments.

¶12 Appellants first contend that the district court erred in ruling the Declaration inadmissible. Affidavits supporting or opposing a motion for summary judgment "must be made on personal knowledge, must set out facts that would be admissible in evidence, and must show that the affiant or declarant is competent to testify on the matters stated." Utah R. Civ. P. 56(c)(4). "Accordingly, affidavits containing allegations that ‘are not based on personal knowledge, lack foundation, are conclusory, [or] contain hearsay’ may be stricken." Golden Meadows Props., LC v. Strand , 2010 UT App 257, ¶ 13, 241 P.3d 375 (quoting Murdock v. Springville Mun. Corp. , 1999 UT 39, ¶ 27, 982 P.2d 65 ). "Similarly, ‘[a]ffidavits reflecting an affiant's unsubstantiated conclusions and opinions are inadmissible.’ " Id. (alteration in original) (quoting Cabaness v. Thomas , 2010 UT 23, ¶ 33, 232 P.3d 486 ). "District courts generally have broad discretion to decide motions to strike summary judgment affidavits," and we therefore "review a district court's decision on a motion to strike affidavits submitted in support of or in opposition to a motion for summary judgment for an abuse of discretion."

Mower v. Simpson , 2017 UT App 23, ¶ 11, 392 P.3d 861 (citation and internal quotation marks omitted); see also Murdock , 1999 UT 39, ¶ 25, 982 P.2d 65 (observing that "an affidavit is simply a method of placing evidence of a fact before the court" and concluding that a district court's "decision to admit evidence is reviewed under a broad grant of discretion"). However, we review a district court's ultimate grant or denial of summary judgment for correctness. Mower , 2017 UT App 23, ¶ 26, 392 P.3d 861.

¶13 Second, Appellants contend that the district court erred in granting summary judgment in favor of Appellees on Appellants' actions for breach of trust, breach of fiduciary duty, request for accounting, and request for declaratory judgment. "We review the district court's grant of a motion for summary judgment for correctness." Id. ¶ 26 (citation and internal quotation marks omitted).

¶14 Finally, Appellants contend that the district court improperly awarded attorney fees to Appellees. "The appropriate standard for reviewing equitable awards of attorney fees is abuse of discretion." Fisher v. Fisher , 2009 UT App 305, ¶ 8, 221 P.3d 845 (brackets, citation, and internal quotation marks omitted). "[W]e give no deference to the [district] court's determination as to whether attorney fees were allowed under a statute." Id.

ANALYSIS

I. Standing

¶15 Before addressing Appellants' arguments, we must first...