Patterson v. Patterson

Decision Date01 November 2011
Docket NumberNo. 20100011.,20100011.
Citation266 P.3d 828,2011 UT 68,694 Utah Adv. Rep. 25
PartiesRon PATTERSON, Plaintiff and Appellee, v. Randy D. PATTERSON; Estate of Darlene Patterson; Judy Ann Henry; Randy D. Patterson; Gary E. Patterson; Rex A. Patterson; Vicky D. Romero; Ricky D. Patterson; and/or John Does 1–10, and Jane Does 1–10, Defendants and Appellant.
CourtUtah Supreme Court


L. Miles LeBaron, Tyler J. Jensen, Jacob D. Briggs, Layton, for appellee.

James C. Jenkins, Jeffery B. Adair, Jeremy S. Raymond, Logan, for appellant.

Justice PARRISH, opinion of the Court:


¶ 1 Shortly before she passed away in 2006, Darlene Patterson (Darlene) executed an amendment (the Amendment) to the Darlene Patterson Family Protection Trust (the Trust). The purpose of the Amendment was to remove Darlene's son Ronald Patterson (Ron) as a beneficiary. On summary judgment, the district court invalidated the Amendment based on its interpretation of our opinion in Banks v. Means, 2002 UT 65, 52 P.3d 1190. The trustee, Randy Patterson (Randy), appeals. We reverse the district court's grant of summary judgment and hold that the Amendment is valid under a provision of the Utah Uniform Trust Code (the UUTC), Utah Code section 75–7–605, which has statutorily overruled our holding in Banks.


¶ 2 Darlene Patterson created the Darlene Patterson Family Protection Trust in 1999.1 The Trust property was to be used for Darlene's benefit during her lifetime. Upon her death, Darlene's children were to each receive a portion of any remaining Trust property. The Trust was a “living” or “inter vivos” trust, in which Darlene “reserve[d] the right to amend, modify, or revoke the Trust in whole or in part, including the principal, and the present or past undisbursed income from such principal.” The document states that “revocation or amendment ... may be in whole or in part by written instrument.” And the Trust provides that [t]he interests of the beneficiaries are presently vested interests subject to divestment which shall continue until this Trust is revoked or terminated other than by death.”

¶ 3 In 2006, Darlene executed the Amendment. The purpose of the Amendment was to remove Darlene's son Ron as a beneficiary of the Trust. The Amendment stated, “I have intentionally not provided anything for my son Ronald S. Patterson (or his descendants) since I have already properly provided for this son during his lifetime as I felt was appropriate.” Eleven months after executing the Amendment, Darlene passed away.

¶ 4 Shortly after his mother passed away, Ron filed a lawsuit against the Trust and Darlene's estate in which he sought a declaration that the Amendment was void because it violated the terms of the Trust.2 Subsequently, Ron sought partial summary judgment. He argued that the Amendment was void under our decision in Banks v. Means, 2002 UT 65, 52 P.3d 1190. Randy responded with his own motion for partial summary judgment in which he sought to validate the Amendment. Randy did not raise the UUTC in either his motion or his memorandum in opposition to Ron's motion. But he did ask the court to either distinguish or “overturn” Banks.

¶ 5 The district court granted Ron's motion for partial summary judgment and denied Randy's cross-motion. Concluding that it was bound by Banks and its progeny, the district court ruled that the Amendment was invalid because it attempted to completely divest Ron of his interest in the Trust without revoking the Trust, as required by Banks.

¶ 6 Randy filed a petition for interlocutory appeal, which we granted. We have jurisdiction pursuant to Utah Code section 78A–3–102(3)(j).


¶ 7 Summary judgment is appropriate where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). When reviewing the district court's ruling on a motion for summary judgment, we consider the facts and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, ¶ 3 n. 2, 258 P.3d 539 (internal quotation marks omitted). We review the district court's grant of summary judgment for correctness, giving no deference to the district court's legal conclusions. Id. ¶ 18.


¶ 8 Randy argues that the district court erred in deciding the case under Banks v. Means, 2002 UT 65, 52 P.3d 1190, and in concluding that the Amendment was void. He asks us to validate his mother's intent to terminate Ron's interest by overruling Banks. In the alternative, Randy asks us to apply a provision of the UUTC, which he contends has statutorily overruled Banks. Ron responds that Banks remains good law and should not be overruled by this court. He also contends that the UUTC did not overrule Banks and that, in any event, we should not consider Randy's statutory argument because Randy raised it for the first time on appeal.

¶ 9 Our preservation rules do not preclude Randy from arguing that the UUTC has statutorily overruled Banks. And, after considering Randy's argument, we conclude that the UUTC has statutorily overruled Banks. The UUTC, which allows for liberal modification of revocable trusts, directly conflicts with our holding in Banks that a settlor must strictly comply with the terms of a trust in order to modify it. Applying the UUTC to the undisputed facts in this case, we hold that the Amendment effectively terminated Ron's interest in the Trust.


¶ 10 We first consider whether Randy is barred from arguing the applicability of the UUTC. Randy concedes that he did not raise the UUTC in the trial court. And he does not argue the applicability of any of the exceptions to our preservation requirement. Rather, he contends he raised and argued the broader issue of whether Darlene's Amendment is valid and suggests that the UUTC is simply one of the arguments supporting the validity of the Amendment. In Randy's view, his argument that the Amendment is valid under the UUTC is properly before us because it goes to the ultimate issue decided by the district court. Ron counters by attempting to frame the “issue” more narrowly. As Ron sees it, the issue decided below was whether Darlene's Amendment was valid under Banks and its progeny.

¶ 11 We take this occasion to discuss our preservation requirement and to clarify its application. Randy attempts to avoid our preservation rule by broadly defining the “issue” decided by the district court. We reject this approach. Nonetheless, we hold that our preservation rule does not prevent Randy from arguing the applicability of the UUTC because the UUTC is controlling authority that directly bears upon the issue that Randy did raise—whether our holding in Banks should be overruled.

¶ 12 We generally will not consider an issue unless it has been preserved for appeal. See J.M.W. v. T.I.Z. (In Re Adoption of Baby E.Z.), 2011 UT 38, ¶ 25, 266 P.3d 702.3 An issue is preserved for appeal when it has been “presented to the district court in such a way that the court has an opportunity to rule on [it].” Id. (internal quotation marks omitted).

¶ 13 Our preservation requirement is self-imposed and is therefore one of prudence rather than jurisdiction. Consequently, we exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal. We have exercised this discretion to recognize some limited exceptions to our general preservation rule. For example, we have reached matters not raised below under “exceptional circumstances,” or when “plain error” has occurred. See, e.g., Meadow Valley Contractors, Inc. v. State Dep't of Transp., 2011 UT 35, ¶ 17, 266 P.3d 671. And we have considered unpreserved constitutional arguments where a person's liberty is at stake. See Pratt v. City Council of Riverton, 639 P.2d 172, 173–74 (Utah 1981). 4

¶ 14 Randy has asked us to draw a distinction between “issues” and “arguments” when determining whether to apply our preservation rule. Courts in some jurisdictions have recognized a distinction between new “issues” or “theories” and new “arguments,” allowing the latter but not the former to be raised for the first time on appeal. See, e.g., Kerbs v. Cal. E. Airways, Inc., 90 A.2d 652, 659 (Del.1952) (refusing to permit a party to raise an “entirely new theory of his case,” but allowing a new argument that “is merely an additional reason in support of a proposition urged below”). But we have expressly “decline[d] to honor such a distinction.” Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 n. 31 (Utah 1993).5 Consistent with this practice, Utah appellate courts have used the words “issue,” “claim,” “argument,” and “matter” almost interchangeably when stating our preservation rule. See, e.g., Jacob v. Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535 ([W]e do not address arguments brought for the first time on appeal unless the [district] court committed plain error or exceptional circumstances exist.” (second alteration in original) (emphasis added) (internal quotation marks omitted)); State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (“As a general rule, claims not raised before the trial court may not be raised on appeal.” (emphasis added) (internal quotation marks omitted)); Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) ([T]o preserve an issue for appellate review, a party must first raise the issue in the trial court.” (emphasis added)); Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983) ([ M]atters not presented to the trial court may not be raised for the first time on appeal.” (emphases added)).6

¶ 15 The above cases in which Utah courts have conflated the words “issue,” “claim,” “argument,” and “matter” demonstrate that semantics alone cannot be our guide in applying our preservation rule. Rather, in assessing application of...

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