Fisher v. Fisher

• Decision Date: 22 October 2009
• Docket Number: No. 20080389-CA.,20080389-CA.
• Citation: 221 P.3d 845,2009 UT App 305
• Parties: In the Matter of the George Fisher Jr. Family Inter Vivos Revocable Trust. Kim FISHER, Michael Fisher, and Susan Thacker, Petitioners, Appellants, and Cross-appellees, v. Brent FISHER, Trustee, Appellee, and Cross-appellant.
• Court: Utah Court of Appeals

221 P.3d 845

2009 UT App 305

In the Matter of the George Fisher Jr. Family Inter Vivos Revocable Trust Kim FISHER, Michael Fisher, and Susan Thacker, Petitioners, Appellants, and Cross-appellees, v. Brent FISHER, Trustee, Appellee, and Cross-appellant.

No. 20080389-CA.

Court of Appeals of Utah.

October 22, 2009.

Rehearing Denied November 17, 2009.

Charles M. Bennett, Salt Lake City, for Appellants and Cross-appellees.

Benson L. Hathaway, Thomas A. Mecham, and Christopher S. Hill, Salt Lake City, for Appellee and Cross-appellant.

Before Judges GREENWOOD, THORNE, and DAVIS.

OPINION

DAVIS, Judge:

¶ 1 Petitioners Kim Fisher and Michael Fisher appeal the trial court's judgment, arguing that the court incorrectly calculated damages and erred in failing to award them attorney fees. Respondent Brent Fisher appeals the same judgment, arguing that the trial court erred in awarding prejudgment interest and failing to grant him an award of attorney fees. We affirm in part and reverse in part. This opinion is the opinion of the court with respect to all issues except for the issues of Respondent's entitlement to attorney fees, see infra Part III.B, and whether we should address the limitation of liability clause, see infra Part IV.A. As to those two issues, the concurring/dissenting opinion constitutes the opinion of the court.

BACKGROUND

¶ 2 George Fisher Jr. and his wife, LaRue Fisher, executed the George Fisher Jr. Family Inter Vivos Revocable Trust Agreement (the trust) in 1975. Around this same time, Respondent, who is George and LaRue's son, began to manage the family farm and ranch, conducting his own cattle operations on the ranch in exchange for his payment of the ranch expenses.

¶ 3 After George died on April 18, 1992, LaRue and Respondent became co-trustees of the trust. According to the trust terms, the trust was divided into a marital trust and a family trust, each of which held a portion of the assets George had owned at death. In late 1992, an appraiser was hired to value the trust property. Thereafter, on May 8, 1995, LaRue and Respondent, as co-trustees, executed an allocation, dividing the trust properties between the marital and family trusts.¹ The allocation listed fifty head of cattle as belonging to the trust and valued those cattle at $42,000. An updated appraisal was later performed in February 1997, and this later appraisal included "some 100" cattle, with values from $450-$650 each, depending on age.

¶ 4 Respondent continued to manage the ranch and farm following George's death and continued his own cattle operations thereon. Respondent also continued to pay trust expenses, including property taxes and water assessments. At some point, Kim Fisher, Michael Fisher, and Susan Thatcher, who are Respondent's siblings as well as the other beneficiaries of the family trust, were unhappy with Respondent's administration of the trust. Accordingly, LaRue and the four siblings executed a designation of trustees on February 21, 2001, naming each of themselves as a co-trustee of the trust. Shortly thereafter, the siblings agreed on a distribution of the real property of the trust. But when they could not agree on the distribution of the trust's other assets, Kim, Michael, and Susan filed a petition for recovery of assets that they alleged had been lost or taken by Respondent.²

¶ 5 The trial court eventually determined that fifty head of cattle, valued at $550 a head, were part of the trust and had been converted by Respondent. The trial court also determined that Respondent owed unpaid rent for use of the ranch, but the court deducted from that amount the property taxes and water assessments Respondent had paid on the trust's real property. The trial court also awarded prejudgment interest to Petitioners. Petitioners now appeal the judgment of the trial court, and Respondent cross-appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Petitioners first contest the trial court's factual findings regarding the timing of Respondent's conversion of cattle and regarding the number and value of cattle converted. We will not set aside such findings "unless clearly erroneous." Utah R. Civ. P. 52(a). "`A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

¶ 7 Petitioners also argue that the trial court erred by giving Respondent a credit for his payment of property taxes and water assessments on the trust property. Whether such an offset is allowed under this cause of action and whether the trial court placed the burden of proof on the appropriate party are questions of law, which we review for correctness. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶ 41, 164 P.3d 384 ("Burden of proof questions typically present issues of law that an appellate court reviews for correctness."); Scott v. Majors, 1999 UT App 139, ¶ 8, 980 P.2d 214 ("We give the trial court's legal conclusions no deference and review them for correctness.").

¶ 8 Both Petitioners and Respondent challenge the trial court's decision declining to award attorney fees. "[T]he appropriate standard for reviewing equitable awards of attorney fees is abuse of discretion." Hughes v. Cafferty, 2004 UT 22, ¶ 20, 89 P.3d 148. However, we give no deference to the trial court's determination as to whether attorney fees were allowed under a statute. See Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 8, 122 P.3d 556 ("Whether the trial court properly interpreted the legal prerequisites for awarding attorney fees under [a statute] is a question of law that we review ... for correctness." (omission in original) (internal quotation marks omitted)).

¶ 9 Finally, Respondent challenges the trial court's award of prejudgment interest. Whether trust language precludes such an award is a question of law, reviewed for correctness. See Lakeside Lumber Prods., Inc. v. Evans, 2005 UT App 87, ¶ 8, 110 P.3d 154 ("[A] district court's interpretation of a trust instrument is a question of law, which we review for correctness." (internal quotation marks omitted)). And if the trust language does not preclude an award of prejudgment interest, we review for correctness the trial court's decision that the award was otherwise allowable. See Cornia v. Wilcox, 898 P.2d 1379, 1387 (Utah 1995) ("A trial court's decision to grant or deny prejudgment interest presents a question of law which we review for correctness.").

ANALYSIS

I. Conversion of the Cattle

A. Date of Conversion

¶ 10 Petitioners argue that the trial court erred in using the date that the trust allocation was signed — May 8, 1995 — as the conversion date of the cattle. But the finding to which Petitioners point contains no such determination. Instead, the finding simply determines that the cattle were part of the trust as of May 8, 1995. The trial court clarified in a later ruling that this finding "did not resolve the issue as to when the cattle were converted." The trial court elaborated as follows:

[T]here was no evidence to establish a specific date for the conversion of cattle or for any single cow. The Court would have to speculate to fix a date for the actual conversion of the cattle. The cows may have been converted or the proceeds converted on May 08, 1995, or at any time after May 08, 1995. Moreover, ... it is likely that the cows were disposed of over a period of years. In any event, the parties failed to present any evidence as to the date of conversion. Therefore, the Court cannot fix a date upon which the damage occurred.

Thus, the trial court did not find any specific date as the date of conversion of the cattle.

¶ 11 Petitioners argue, without citation to legal authority, that the conversion date should be the date of George's death — April 18, 1992 — because Respondent did not account for any cattle in the 2004 accounting he prepared in connection with these proceedings and because Respondent testified that there were no cattle in the trust at the time of George's death. But we do not see that either of these facts establish a date of conversion. Respondent's failure to include the cattle in his 2004 accounting simply indicates, at most, that conversion occurred before the date the accounting was prepared. And Respondent's argument that there were never any cattle in the trust does nothing to establish any specific date of conversion.

¶ 12 Petitioners also rely on the fact that the May 8, 1995 allocation, which the trial court found to be convincing proof of the existence of the cattle, arguably attests to what property belonged to the trust at the time of George's death in 1992 as opposed to what property belonged to the trust when the allocation was signed three years later. But even assuming that such is the case, this does nothing to pinpoint the time at which conversion occurred; indeed, such an assumption makes the time of conversion less definite, that is, not only could conversion have occurred sometime after May 8, 1995, conversion could also have occurred sometime after April 18, 1992 and before May 8, 1995.³ Thus, Petitioners point to no evidence indicating when any of the cattle were converted, and we do not see that the trial court clearly erred in its determination that there was no evidence from which a date of conversion could be established.

B. Number of Cattle

¶ 13 The trial court relied on the 1995 allocation to determine that fifty head of cattle were converted from the trust. Petitioners argue that the trial court should have instead relied on the 1997 appraisal and determined that one hundred head of cattle were converted. We cannot say that the trial court's finding on this matter was clearly erroneous where (1) the 1995...