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Anderton v. Boren

Court of Appeals of Utah

December 21, 2017

Sharrol Anderton, Mary Blanchard, Terry Christensen, and Duane Boren Jr., Appellants,
v.
David L. Boren and Sherron L. Boren, Appellees.

         Eighth District Court, Roosevelt Department The Honorable Samuel P. Chiara No. 143000048

          Russell T. Monahan, Attorney for Appellants.

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

          Diana J. Huntsman, Sherri L. Walton, 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 Lucky[2] 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 ...


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