Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Kirkland

Court of Appeals of Utah

January 26, 2017

Penn Smith and Valden Cram, Appellees,
v.
John H. Kirkland, Kevin B. Kirkland, David R. Kirkland, Linton C. Kirkland, Hylan F. Kirkland, Mary Ruth Cooper, James H. Kirkland, Richard A. Kirkland, Ephraim B. Kirkland, Kirk B. Kirkland, Benjamin T. Kirkland, Steven E. Kirkland II, and Daniel B. Kirkland, Appellants.

         Fifth District Court, St. George Department The Honorable G. Michael Westfall[1] No. 060501773

          William F. Rummler and Christopher A. Lund, Attorneys for Appellants

          Nicholas I. Chamberlain, Attorney for Appellees

          Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen and David N. Mortensen concurred.

          TOOMEY, Judge:

         ¶1 The Beneficiaries of the Terrestrial Kingdom of God Trust appeal the orders of the district court granting summary judgment in favor of Penn Smith and Valden Cram. We affirm in part and reverse in part.

          BACKGROUND

         ¶2 Steven E. Kirkland (the Trustor) created the Terrestrial Kingdom of God Trust (the Trust) in 1993 and named several relatives as Beneficiaries.

         ¶3 The Trustor appointed Valden Cram and Penn Smith as two of the original Trustees in 1993. The Trust required the Trustor to "prepare and deliver" Lease and Stewardship Agreements, signed by the Trustor and the Trustees, to the Beneficiaries. The Trustor did not deliver these agreements before he died. Instead, the Trustees delivered the agreements and the Trust has been functioning since 1993.

         ¶4 The Declaration of Trust designated that the Trustees would serve without pay, but it allowed the Trustees to appoint one person as manager who was to be paid "reasonable compensation" as determined by the Board of Trustees. In 2005, the Board amended the Declaration of Trust to include four paid positions, including a manager and an assistant manager who would each be paid $50 an hour.[2] In 2006, the Board appointed Smith as manager and Cram as assistant manager, and they began charging the Trust for their services.

         ¶5 In September 2006, a board of arbitration determined that the Trust permitted the appointment of a trust manager, but that it was "gross negligence" for the Trustees to appoint themselves to paid positions and that such action was in breach of the basic intent of the Trust. The 2006 Arbitration Board also indicated that some actions taken by Smith as manager were outside of his assigned functions, and that Smith was "grossly negligent" for attempting to deal with these matters and charging the Trust for the time spent on them.

         ¶6 Two weeks later, Smith filed a lawsuit against the Trust, seeking compensation for his services. Cram, representing the Trust, was listed as a defendant. Smith did not inform the Beneficiaries of his intentions to sue. Because the suit went unopposed, default judgment was entered and Smith placed a lien on Trust property. Cram did not inform the Beneficiaries of the property lien. After learning of the default judgment, the Beneficiaries intervened in the lawsuit and filed a complaint against Smith and Cram (collectively, the Appellees)[3], claiming various breaches of fiduciary duties and conversion of Trust assets.[4]

         ¶7 The dispute between the Beneficiaries and the Appellees went before another arbitration board in 2007. The 2007 Arbitration Board concluded that "the Trustees have acted in the best interest of the Trust" but concluded that the "matters dealing with facts in controversy between the Trustees . . . and the Trust Beneficiaries are being adjudicated by all parties in the . . . 5th District Court and final judgment of that controversy should be left to that court."

          ¶8 Litigation continued over the course of the next six years, with several notable developments. In April 2008, the Beneficiaries filed motions to remove the Appellees as Trustees for breaches of fiduciary duty and to void their allegedly self-serving transactions. The district court granted those motions. Over a year later, the court, without explanation, set aside its order granting the motions.

         ¶9 In May 2013, the Appellees filed a motion for summary judgment, claiming that the Trust was valid, that Smith was entitled to compensation, and that the Trustees did not breach their fiduciary duties. The district court granted summary judgment on the validity issue, but denied summary judgment on the breach and compensation issues, concluding there were "genuine issues of material fact" regarding "the amount, if any, to which [Smith] is entitled for his work as Manager" and regarding whether the Trustees have "breached their various duties to the Beneficiaries." The court reserved these issues for trial.

         ¶10 Forty-five days later, the Appellees filed another motion for summary judgment on the same breach and compensation issues. No further discovery had taken place, and the Appellees included only two additional documents in support of this second motion for summary judgment.

         ¶11 The Beneficiaries filed a motion to strike the Appellees' second motion for summary judgment, arguing the law of the case doctrine precluded the Appellees from reopening the same issues on a second motion for summary judgment. The Beneficiaries also argued that the two additional documents were inadmissible hearsay. The Beneficiaries mistakenly believed that their motion to strike stayed the time to submit an opposition to the motion for summary judgment, and they filed no opposition to it.

         ¶12 In November 2013, three months after the Appellees filed their second motion for summary judgment, the district court held a pretrial conference. The court heard oral argument on the motion to strike and the motion for summary judgment, and granted the motion for summary judgment in its entirety, which included an award of attorney fees. The Beneficiaries filed a motion to reconsider and two rule 60(b) motions for relief from judgment, each of which was denied. The Beneficiaries appeal.

         ISSUES

         ¶13 The Beneficiaries raise four issues on appeal. First, they contend the district court erred when it granted the Appellees' second motion for summary judgment. Second, the Beneficiaries argue the court abused its discretion by denying their first rule 60(b) motion. Third, they contend that the court's award of attorney fees to the Appellees was improper. Fourth, they argue the court erred when, on the first motion for summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.