Howard v. Manes

• Decision Date: 22 August 2013
• Docket Number: No. 20120070–CA.,20120070–CA.
• Citation: 309 P.3d 279,741 Utah Adv. Rep. 20
• Parties: Angeline HOWARD, Plaintiff and Appellant, v. Spyros MANES and Caryn Sorensen Manes, Defendants and Appellees.
• Court: Utah Court of Appeals

309 P.3d 279

741 Utah Adv. Rep. 20

Angeline HOWARD, Plaintiff and Appellant,

v.Spyros MANES and Caryn Sorensen Manes, Defendants and Appellees.

No. 20120070–CA.

Court of Appeals of Utah.

Aug. 22, 2013.

Craig L. Taylor and J. Adam White, for Appellant.

Sara E. Bouley and Felicia B. Canfield, for Appellees.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges WILLIAM A. THORNE JR. and MICHELE M. CHRISTIANSEN concurred.

Opinion

ROTH, Judge:

¶ 1 Plaintiff Angeline Howard (Angie), in her capacity as the personal representative of the estate of her mother, Thelma Manes Kolendrianos (the estate), appeals the district court's decision to grant summary judgment to Thelma's brother, Defendant Spyros Manes (Sam).¹ We affirm.

BACKGROUND ²

¶ 2 This case involves a dispute over whether a constructive trust should be imposed with respect to certain real property, known as Parcel 136, in Davis County, Utah. According to the estate, in 1996 Thelma and Sam's mother, Eugenia Manes (Yia Yia),³ transferred Parcel 136 to herself, Sam, and Thelma with the intent to create an oral trust to hold Parcel 136 for the benefit of the transferees as well as for the benefit of Sam's and Thelma's children (collectively, the grandchildren). Over the next decade, the three acted consistently with the creation of such a trust. Following Thelma's death in August 2001, Yia Yia and Sam transferred Parcel 136 to Sam and his wife Caryn as joint tenants. According to the estate, Sam refused to give the grandchildren their interest in the property. The estate filed suit against Sam, asserting multiple claims that all depended on Sam holding title to Parcel 136 subject to a constructive trust for the benefit of the grandchildren.

¶ 3 The estate alleged the creation of a constructive trust under theories of oral express trust and unjust enrichment. In support of the oral express trust claim, the estate relied on various statements made by Thelma and Sam, which the estate argued show their intent to create a trust, even though that intent was never reduced to writing. According to the estate, between the fall of 1999 and her death in August 2001 after a prolonged battle with cancer, Thelma made several statements to her daughters, Angie and Jeannie, as well as to a friend, Dorothy, generally explaining that she, Sam, and Yia Yia had a verbal agreement to hold Parcel 136 for the benefit of the grandchildren. Thelma also instructed Angie and Jeannie that if something should happen to Sam and she was for some reason incapacitated and could not act according to the verbal agreement, Angie and Jeannie should make sure that Sam's children received their share of Parcel 136. The estate also alleged that after Thelma's death, between late 2001 and early 2005, Sam had several conversations with Angie that can be reasonably interpreted to indicate that Sam acknowledged the intent to create a trust with respect to Parcel 136.

¶ 4 The estate also relies on several deeds that transferred the ownership of Parcel 136 among Yia Yia, Sam, and Thelma, arguing that those transfers are consistent with their intent to create a trust. The first deed was recorded in June 1996, when Yia Yia conveyed Parcel 136 to Sam, Thelma, and herself in joint tenancy with rights of survivorship. Another deed was recorded in May 1999, transferring Parcel 136 to Thelma; but one month later, Thelma transferred Parcel 136 back to Yia Yia, Sam, and herself in joint tenancy with rights of survivorship. The estate explains that Parcel 136 was mistakenly transferred to Thelma with another parcel of property, so when she discovered the mistake, she transferred it back. Thelma died in 2001. Then in 2002, Yia Yia and Sam, the surviving title holders, transferred Parcel 136 to Sam and his wife as joint tenants with rights of survivorship in order to avoid any complications should Yia Yia require needs-based government assistance as she aged and her health deteriorated. According to the estate, Thelma's and Sam's statements, considered in conjunction with the series of transfers of Parcel 136, evinced their intent to create a trust in favor of the grandchildren.

¶ 5 In the alternative, the estate asked the district court to impose a constructive trust under a theory of unjust enrichment. According to the estate, Thelma and her family built a number of improvements on Parcel 136 sometime “[d]uring th[e] 1999 time frame” when Thelma transferred the parcel back to Yia Yia, Sam, and herself as joint tenants.⁴ Thelma obtained a $35,000 loan to finance construction of a large barn, and her family also “built ditches, piped the property, planted seeds, harvested crops, and paid the property taxes until Thelma's death.” Sam has never participated in the family's farming operation, nor did he assist financially or otherwise in constructing the barn and other improvements. “These facts,” the estate argues, “compel imposition of an equitable constructive trust as to one-half of Parcel 136.”

¶ 6 Sam moved for summary judgment. In support of his motion, Sam relied on the deeds, arguing that the transfers with full rights of survivorship demonstrated an intent to convey Parcel 136, not to the grandchildren, but to the survivor of the grantees. In particular, Sam argued that the final transfer after Thelma's death, from Yia Yia and Sam, as the survivor grantees, to Sam plainly demonstrated that he, and not the grandchildren, was the intended owner of the property. Sam also argued that Thelma's statements to Angie and Jeannie were hearsay and not admissible to prove any intent to create a trust. He went on to argue that the remaining evidence was insufficient to create a genuine issue of material fact as to the intent to create a trust. Sam also contended that the estate's claim was barred by the statute of frauds because there was no signed writing establishing a trust with respect to Parcel 136, and no exception to the requirement of a writing could be shown. Thus, Sam argued that there were no genuine issues of material fact as to the creation of a constructive trust, and he was entitled to judgment as a matter of law on the estate's claims against him.

¶ 7 In response, the estate argued that Thelma's statements were not inadmissible hearsay and that even if they were, there was enough other evidence, especially in Sam's own statements, to create an issue of material fact as to the intent to create a trust. The estate further argued that under the circumstances, the creation of an oral express trust with respect to Parcel 136 fell within an exception to the statute of frauds. The estate thus contended that genuine issues of material fact precluded summary judgment. The district court granted Sam's motion for summary judgment, and the estate now appeals.

ISSUE AND STANDARD OF REVIEW

¶ 8 The estate challenges the district court's decision to grant summary judgment to Sam, which presents a question of law that we review for correctness. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).

ANALYSIS

I. Sam Met His Burden on Summary Judgment.

¶ 9 The estate first argues that Sam failed to meet his initial burden of showing that he is entitled to summary judgment because he failed to show that he did not hold Parcel 136 in trust for the grandchildren. Because Sam has moved for summary judgment and would not bear the burden of proof at trial, he must “provide factual evidence establishing that there is no genuine issue of material fact.” See Orvis, 2008 UT 2, ¶ 16, 177 P.3d 600.

¶ 10 In moving for summary judgment, Sam relied on the series of deeds that transferred Parcel 136, beginning with the transfer by Yia Yia to Thelma, Sam, and herself in 1996 and ending with the final transfer to Sam in 2002, as affirmative evidence that he was the actual and intended owner of Parcel 136. The estate argues that this was insufficient to meet Sam's initial burden on summary judgment because he was required to show that there was no material question of fact as to its claim that he held the property in trust based on the facts upon which it relied in support of its claims. However, the deeds themselves were adequate to support Sam's initial burden because the sequence of transfers supports a presumption that the deeds conveyed Parcel 136 to Sam. SeeUtah Code Ann. § 57–1–3 (LexisNexis 2010) (“A fee simple title is presumed to be intended to pass by a conveyance of real estate, unless it appears that a lesser estate was intended.”); see also Rawlings v. Rawlings, 2010 UT 52, ¶ 28, 240 P.3d 754 (“[W]here proving ... intent [to create a trust] will be contrary to an otherwise valid deed, the evidence of the trust must be clear and convincing.”). Accordingly, the burden shifts to the estate, which must overcome that presumption by presenting facts sufficient to raise a material question as to whether Sam actually held Parcel 136 in a constructive trust rather than in fee simple. Thus, we conclude that Sam met his initial burden on the motion for summary judgment.

II. The Estate Is Not Entitled to Imposition of a Constructive Trust.

¶ 11 The estate argues that, contrary to the district court's decision, there were factual issues as to whether the court should impose a constructive trust to hold Parcel 136 for the benefit of the grandchildren. To establish a constructive trust, the estate relies on theories of oral express trust and unjust enrichment. See Rawlings, 2010 UT 52, ¶¶ 26–29, 240 P.3d 754 (describing what a plaintiff must prove to impose a constructive trust for unjust enrichment and an oral express trust). We hold that the district court correctly granted summary judgment to Sam on both issues.

A. The Estate Cannot Establish an Oral Express Trust.

¶ 12 “Oral express trusts have certain fundamental characteristics in common with...