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In re J. Melvin and Glenna D. Bulloch Living Trust

Court of Appeals of Utah

June 21, 2018

In the matter of the J. Melvin and Glenna D. Bulloch Living Trust
v.
Glenna D. Bulloch, Appellee. Kim Murie and Brent Murie, Appellants,

          Fifth District Court, Cedar City Department The Honorable Keith C. Barnes No. 143500053

          Carson M. Pearson, Daniel E. Witte, and Elliot P. Smith, Attorneys for Appellants

          J. David Westwood and Scott M. Burns, Attorneys for Appellee

          JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.

          POHLMAN, JUDGE.

         ¶1 In this case, we consider whether the district court, in the context of deciding a motion for summary judgment, correctly ruled that an amendment to the J. Melvin and Glenna D. Bulloch Living Trust (the Trust) was void as a matter of law. We also consider whether the court exceeded its discretion in entering final judgment before resolving other issues relating to the administration of the Trust. We affirm.

         BACKGROUND

         ¶2 J. Melvin Bulloch and Glenna D. Bulloch[1] established the Trust in May 1996. They were each designated as Grantors and also as Trustees of the Trust. Among its provisions, and as relevant here, the Trust provided, "So long as both Grantors are living, they reserve the right to revoke, alter or amend this Trust instrument in whole or in part by a written instrument signed, acknowledged and delivered to the Trustees. Such election must be made by both Grantors."

         ¶3 In August 1998, Melvin appointed Glenna as his attorney-in-fact through a written "General Power of Attorney" (the Power of Attorney). The Power of Attorney defined the scope of Glenna's authority, stating that Glenna was appointed to act for Melvin as follows:

In my name, place and stead, to do any act or transaction which I would do myself, if I were personally present, with respect to all matters to the fullest extent that I as an individual am permitted by law to perform by and through an agent (including what I may do as Trustee of The J. Melvin and Glenna D. Bulloch Living Trust . . .).

         The Power of Attorney then provided a non-exclusive listing of powers delegated to Glenna as attorney-in-fact:

To conduct banking transactions; to receive, endorse and cash any checks payable to me, from whatever source, to deposit such funds in any bank or invest such funds or expend such funds for my maintenance and support, whether directly or indirectly, and to have control over any funds deposited in my name, personally or in my name as Trustee . . . and to have access to any safe deposit box held in my name. To conduct real estate transactions, including the power to sell, rent or lease any rights I may own in real estate, and to receive and receipt any and all rents, royalties, and all payments now due or to become due to me as I would be able to do myself (including what I may do as Trustee . . .); to sign tax returns and receive and cash tax refund checks; to make gifts in my name and to take steps to perpetuate and carry out my estate plan and financial plans; and to do any and all other things necessary and proper in the conduct of my personal, business, banking and Trust affairs.

         ¶4 Many years later, on April 2, 2013, Glenna signed the Second Amendment to the Trust (the Second Amendment). It purported to amend the Trust by, among other things, altering the property distribution such that two particular parcels of property held in the Trust for the benefit of all the beneficiaries would be conveyed to Kim Murie, the Bullochs' daughter. Glenna signed the Second Amendment in her individual capacity and in her capacity as Melvin's attorney-in-fact. Melvin did not sign the Second Amendment. He died two days later.

         ¶5 In June 2014, Glenna filed a petition for declaratory judgment, claiming that she "did not understand the Second Amendment when she signed it" and requesting a court order declaring it void "so as to resolve any disputes over her estate." She argued that the Second Amendment should be declared void pursuant to Utah Code section 75-5-503(1), which prohibited an attorney-in-fact from modifying an inter vivos revocable trust unless such power was "expressly authorized in the power of attorney." Utah Code Ann. § 75-5-503(1) (LexisNexis Supp. 2014).[2] She claimed that the Second Amendment was void on the basis that there was "no language in the Power of Attorney that expressly authorizes the agent to modify the Trust."

         ¶6 In March 2016, Glenna moved for summary judgment in which she repeated the section 75-5-503 statutory argument she made in the petition. Relatedly, Glenna also contended that the broad language in the Power of Attorney giving her authority "to do any and all other things necessary and proper in the conduct of [Melvin's] . . . Trust affairs" could not be construed to authorize her to amend the Trust. And she asserted that while the language in the Power of Attorney referenced her authority to act in Melvin's stead as ...


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