Sharrol Anderton, Mary Blanchard, Terry Christensen, and Duane Boren Jr., Appellants,
David L. Boren and Sherron L. Boren, Appellees.
District Court, Roosevelt Department The Honorable Samuel P.
Chiara No. 143000048
Russell T. Monahan, Attorney for Appellants.
B. Allred and Brad D. Brotherson, Attorneys for Appellee
David L. Boren.
J. Huntsman, Sherri L. Walton, Jack D. Smart, D. Karl Mangum,
Attorneys for Appellee Sherron L. Boren.
Michele M. Christiansen authored this Opinion, in which
Judges Gregory K. Orme and David N. Mortensen concurred.
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.
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.
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. 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 and the remaining "waste ground"
real estate to the other children; and dividing the remainder
of the estate equally among the children.
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
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.
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.
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
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.
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 ...