Howard v. Manes

2013 UT App 208
_________________________________________________________

THE UTAH COURT OF APPEALS

ANGELINE HOWARD,
Plaintiff and Appellant,
v.
SPYROS MANES AND CARYN SORENSEN MANES,
Defendants and Appellees.

Opinion
No. 20120070‐CA
Filed August 22, 2013

Second District, Farmington Department
The Honorable John R. Morris
No. 080700226

Craig L. Taylor and J. Adam White, Attorneys for
Appellant
Sara E. Bouley and Felicia B. Canfield, Attorneys
for Appellees

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
WILLIAM A. THORNE JR. and MICHELE M. CHRISTIANSEN
concurred.

ROTH, Judge:

¶1 Plaintiff Angeline Howard (Angie), in her capacity as the
personal representative of the estate of her mother, Thelma Manes
Kolendrianos (the estate), appeals the district court’s decision to
grant summary judgment to Thelma’s brother, Defendant Spyros
Manes (Sam).1 We affirm.

1. Because Angie, as the plaintiff, acts as the representative of the
estate in this case, we refer to the plaintiff in this decision as the
estate. However, she also has an individual role in the pertinent
(continued...)
 Howard v. Manes

BACKGROUND2

¶2 This case involves a dispute over whether a constructive
trust should be imposed with respect to certain real property,
known as Parcel 136, in Davis County, Utah. According to the
estate, in 1996 Thelma and Sam’s mother, Eugenia Manes (Yia
Yia),3 transferred Parcel 136 to herself, Sam, and Thelma with the
intent to create an oral trust to hold Parcel 136 for the benefit of the
transferees as well as for the benefit of Sam’s and Thelma’s
children (collectively, the grandchildren). Over the next decade, the
three acted consistently with the creation of such a trust. Following
Thelma’s death in August 2001, Yia Yia and Sam transferred Parcel
136 to Sam and his wife Caryn as joint tenants. According to the
estate, Sam refused to give the grandchildren their interest in the
property. The estate filed suit against Sam, asserting multiple
claims that all depended on Sam holding title to Parcel 136 subject
to a constructive trust for the benefit of the grandchildren.

¶3 The estate alleged the creation of a constructive trust under
theories of oral express trust and unjust enrichment. In support of
the oral express trust claim, the estate relied on various statements
made by Thelma and Sam, which the estate argued show their

1. (...continued)
facts, and where that is the case we refer to her as Angie, as do the
parties. Sam’s wife Caryn is also involved in the litigation as a
defendant, but we refer only to Sam for the sake of simplicity.

2. In reviewing a district court’s grant of summary judgment, we
view “the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.” See Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal
quotation marks omitted).

3. Yia Yia (γιαγιά) is Greek for grandmother. See Babylon, English
to Greek Translation, http://translation.babylon.com/english/to‐greek
(last visited Aug. 14, 2013). We refer to Eugenia Manes as Yia Yia
because the parties consistently refer to her this way in their briefs.

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 Howard v. Manes

intent to create a trust, even though that intent was never reduced
to writing. According to the estate, between the fall of 1999 and her
death in August 2001 after a prolonged battle with cancer, Thelma
made several statements to her daughters, Angie and Jeannie, as
well as to a friend, Dorothy, generally explaining that she, Sam,
and Yia Yia had a verbal agreement to hold Parcel 136 for the
benefit of the grandchildren. Thelma also instructed Angie and
Jeannie that if something should happen to Sam and she was for
some reason incapacitated and could not act according to the
verbal agreement, Angie and Jeannie should make sure that Sam’s
children received their share of Parcel 136. The estate also alleged
that after Thelma’s death, between late 2001 and early 2005, Sam
had several conversations with Angie that can be reasonably
interpreted to indicate that Sam acknowledged the intent to create
a trust with respect to Parcel 136.

¶4 The estate also relies on several deeds that transferred the
ownership of Parcel 136 among Yia Yia, Sam, and Thelma, arguing
that those transfers are consistent with their intent to create a trust.
The first deed was recorded in June 1996, when Yia Yia conveyed
Parcel 136 to Sam, Thelma, and herself in joint tenancy with rights
of survivorship. Another deed was recorded in May 1999,
transferring Parcel 136 to Thelma; but one month later, Thelma
transferred Parcel 136 back to Yia Yia, Sam, and herself in joint
tenancy with rights of survivorship. The estate explains that Parcel
136 was mistakenly transferred to Thelma with another parcel of
property, so when she discovered the mistake, she transferred it
back. Thelma died in 2001. Then in 2002, Yia Yia and Sam, the
surviving title holders, transferred Parcel 136 to Sam and his wife
as joint tenants with rights of survivorship in order to avoid any
complications should Yia Yia require needs‐based government
assistance as she aged and her health deteriorated. According to
the estate, Thelma’s and Sam’s statements, considered in
conjunction with the series of transfers of Parcel 136, evinced their
intent to create a trust in favor of the grandchildren.

¶5 In the alternative, the estate asked the district court to
impose a constructive trust under a theory of unjust enrichment.

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 Howard v. Manes

According to the estate, Thelma and her family built a number of
improvements on Parcel 136 sometime “[d]uring th[e] 1999 time
frame” when Thelma transferred the parcel back to Yia Yia, Sam,
and herself as joint tenants.4 Thelma obtained a $35,000 loan to
finance construction of a large barn, and her family also “built
ditches, piped the property, planted seeds, harvested crops, and
paid the property taxes until Thelma’s death.” Sam has never
participated in the family’s farming operation, nor did he assist
financially or otherwise in constructing the barn and other
improvements. “These facts,” the estate argues, “compel
imposition of an equitable constructive trust as to one‐half of Parcel
136.”

¶6 Sam moved for summary judgment. In support of his
motion, Sam relied on the deeds, arguing that the transfers with
full rights of survivorship demonstrated an intent to convey Parcel
136, not to the grandchildren, but to the survivor of the grantees. In
particular, Sam argued that the final transfer after Thelma’s death,
from Yia Yia and Sam, as the survivor grantees, to Sam plainly
demonstrated that he, and not the grandchildren, was the intended
owner of the property. Sam also argued that Thelma’s statements
to Angie and Jeannie were hearsay and not admissible to prove any
intent to create a trust. He went on to argue that the remaining
evidence was insufficient to create a genuine issue of material fact
as to the intent to create a trust. Sam also contended that the
estate’s claim was barred by the statute of frauds because there was
no signed writing establishing a trust with respect to Parcel 136,
and no exception to the requirement of a writing could be shown.
Thus, Sam argued that there were no genuine issues of material

4. It is unclear from the briefs or the record whether Thelma’s
family constructed the improvements before or after the 1999
conveyance. The estate’s brief states that “[d]uring this ~ 1999 time
frame, . . . Thelma . . . paid to have a large [barn] built on [Parcel]
136.” (Second alteration in original.) It places construction of the
other improvements in the same general time frame before
Thelma’s death on August 26, 2001.

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 Howard v. Manes

fact as to the creation of a constructive trust, and he was entitled to
judgment as a matter of law on the estate’s claims against him.

¶7 In response, the estate argued that Thelma’s statements were
not inadmissible hearsay and that even if they were, there was
enough other evidence, especially in Sam’s own statements, to
create an issue of material fact as to the intent to create a trust. The
estate further argued that under the circumstances, the creation of
an oral express trust with respect to Parcel 136 fell within an
exception to the statute of frauds. The estate thus contended that
genuine issues of material fact precluded summary judgment. The
district court granted Sam’s motion for summary judgment, and
the estate now appeals.

ISSUE AND STANDARD OF REVIEW

¶8 The estate challenges the district court’s decision to grant
summary judgment to Sam, which presents a question of law that
we review for correctness. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177
P.3d 600. Summary judgment is appropriate when “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).

ANALYSIS

I. Sam Met His Burden on Summary Judgment.

¶9 The estate first argues that Sam failed to meet his initial
burden of showing that he is entitled to summary judgment
because he failed to show that he did not hold Parcel 136 in trust
for the grandchildren. Because Sam has moved for summary
judgment and would not bear the burden of proof at trial, he must
“provide factual evidence establishing that there is no genuine
issue of material fact.” See Orvis, 2008 UT 2, ¶ 16.

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 Howard v. Manes

¶10 In moving for summary judgment, Sam relied on the series
of deeds that transferred Parcel 136, beginning with the transfer by
Yia Yia to Thelma, Sam, and herself in 1996 and ending with the
final transfer to Sam in 2002, as affirmative evidence that he was
the actual and intended owner of Parcel 136. The estate argues that
this was insufficient to meet Sam’s initial burden on summary
judgment because he was required to show that there was no
material question of fact as to its claim that he held the property in
trust based on the facts upon which it relied in support of its
claims. However, the deeds themselves were adequate to support
Sam’s initial burden because the sequence of transfers supports a
presumption that the deeds conveyed Parcel 136 to Sam. See Utah
Code Ann. § 57‐1‐3 (LexisNexis 2010) (“A fee simple title is
presumed to be intended to pass by a conveyance of real estate,
unless it appears that a lesser estate was intended.”); see also
Rawlings v. Rawlings, 2010 UT 52, ¶ 28, 240 P.3d 754 (“[W]here
proving . . . intent [to create a trust] will be contrary to an otherwise
valid deed, the evidence of the trust must be clear and
convincing.”). Accordingly, the burden shifts to the estate, which
must overcome that presumption by presenting facts sufficient to
raise a material question as to whether Sam actually held Parcel 136
in a constructive trust rather than in fee simple. Thus, we conclude
that Sam met his initial burden on the motion for summary
judgment.

II. The Estate Is Not Entitled to Imposition of a Constructive
Trust.

¶11 The estate argues that, contrary to the district court’s
decision, there were factual issues as to whether the court should
impose a constructive trust to hold Parcel 136 for the benefit of the
grandchildren. To establish a constructive trust, the estate relies on
theories of oral express trust and unjust enrichment. See Rawlings,
2010 UT 52, ¶¶ 26–29 (describing what a plaintiff must prove to
impose a constructive trust for unjust enrichment and an oral
express trust). We hold that the district court correctly granted
summary judgment to Sam on both issues.

20120070‐CA 6 2013 UT App 208
 Howard v. Manes

A. The Estate Cannot Establish an Oral Express Trust.

¶12 “Oral express trusts have certain fundamental characteristics
in common with traditional trusts because, like traditional trusts,
they are the manifestation of a settlor’s intent with regard to
property.” Id. ¶ 26 (citation and internal quotation marks omitted).
The main characteristic they share is “the imposition of obligations
on a trustee to act for the benefit of [beneficiaries] as to matters
within the scope of the [trust].” Id. (alterations in original) (citation
and internal quotation marks omitted). “Like trusts created by a
valid writing, constructive trusts imposed to give effect to oral
express trusts” can be characterized as creating “a fiduciary
relationship with respect to property, arising as a result of a
manifestation of an intention to create it and subjecting the person in
whom the title is vested to equitable duties to deal with it for the
benefit of others.” Id. (citation and internal quotation marks
omitted).

¶13 Nevertheless, even “[w]here the transfer of land was made
with the intent to create such a trust, the trust will generally fail
unless evidenced by a writing that complies with the Statute of
Frauds.” Id. ¶ 27. “Because oral express trusts do not meet these
requirements, they will only be given effect in certain
circumstances.” Id. (citation and internal quotation marks omitted).
And if the circumstances are found, “the constructive trusts are
deemed to arise[] by operation of law and are not within the statute
of frauds.” Id. (alteration in original) (citation and internal
quotation marks omitted). In this regard, our supreme court has
adopted section 45 of the Restatement (Second) of Trusts, which

applies when the transferor of land intends for the
transfer to benefit someone other than the transferor
or the transferee:

“(1) Where the owner of an interest in land transfers
it inter vivos to another in trust for a third person,
but no memorandum properly evidencing the
intention to create a trust is signed, as required by

20120070‐CA 7 2013 UT App 208
 Howard v. Manes

the Statute of Frauds, and the transferee refuses to
perform the trust, the transferee holds the interest
upon a constructive trust for the third person, if, but
only if
(a) the transferee by fraud, duress or undue influence
prevented the transferor from creating an enforceable
interest in the third person, or
(b) the transferee at the time of the transfer was in a
confidential relation to the transferor, or
(c) the transfer was made by the transferor in
anticipation of death.”

Id. ¶ 28 (emphasis added) (quoting Restatement (Second) of Trusts
§ 45(1) (1959)). “In short, the imposition of a constructive trust [by
way of an oral express trust] under this section of the
Restatement . . . requires proof that the transferor of land intended
to create a trust and that” other circumstances exist, such as the
existence of a confidential relationship between the transferee and
transferor at the time of the transfer. Id. “And where proving this
intent will be contrary to an otherwise valid deed, the evidence of
the trust must be clear and convincing.” Id.

¶14 The estate argues that “Thelma’s statements to [Angie and
Jeannie] prior to her death unmistakably demonstrate both
(1) intent to create a trust and (2) the confidential relationship”
required to create an oral express trust. Sam, however, argues that
Thelma’s statements are hearsay and are therefore inadmissible to
prove either element. The district court agreed that Thelma’s
statements “regarding the creation of an oral express trust are
inadmissible . . . hearsay and they are not subject to any exception.”
Before reaching the merits of the estate’s claims, we must therefore
determine whether the district court correctly excluded Thelma’s
statements. We conclude that it did.

1. Thelma’s Statements Are Inadmissible.

¶15 To challenge the district court’s exclusion of Thelma’s
discussions with Angie, Jeannie, and Dorothy, the estate relies

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primarily on the dying declaration exception.5 Rule 801(c) of the
Utah Rules of Evidence provides that “hearsay” is an out‐of‐court
“statement that . . . [is] offer[ed] in evidence to prove the truth of
the matter asserted in the statement.” Utah R. Evid. 801(c)(2).
“Hearsay is not admissible” unless subject to an exemption or
exception. Id. R. 802. One exception to the hearsay rule allows the
admission of statements made under belief of impending death. Id.
R. 804(b)(2). Specifically, rule 804(b)(2) provides that “a statement
made by the declarant while believing the declarant’s death to be
imminent” is “not excluded by the rule against hearsay.”6 Id.
R. 804(b)(2). That belief need not approach “absolute knowledge”
of impending death but “must be more than a mere possibility or
probability of death.” State v. St. Clair, 282 P.2d 323, 325–26 (Utah
1955). The test is “whether the declarant at the time of the
declaration so fully expected to die from an existing affliction that
he [or she] had in fact abandoned all hope of recovery.” Id. at 326.
We review a district court’s ruling on admissibility of evidence for
abuse of discretion. Eggett v. Wasatch Energy Corp., 2004 UT 28,
¶ 10, 94 P.3d 193; McKelvey v. Hamilton, 2009 UT App 126,
¶¶ 16–18, 211 P.3d 390.

¶16 In arguing that Thelma’s statements are admissible under
the dying declaration exception, the estate relies on the fact that
Thelma made these statements after she had been diagnosed with

5. The estate makes some cursory arguments addressing other
exceptions to the hearsay rule and also asserts that Thelma’s
statements are not offered for their truth. The only exception that
is sufficiently briefed, however, is the dying declaration exception.
See Utah R. App. P. 24(a)(9) (“The argument [in an appellant’s
brief] shall contain the contentions and reasons of the appellant
with respect to the issues presented . . . with citations to the
authorities, statutes, and parts of the record relied on.”).

6. The dying declaration exception only applies when the declarant
is “unavailable as a witness,” such as when the declarant “cannot
be present or testify . . . because of death.” Utah R. Evid. 804(b)(2),
(a)(4).

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 Howard v. Manes

cancer, some of them within a relatively short time before her
death. Thelma was initially diagnosed with cancer in 1993, which
went into remission but returned sometime in late 1999 or early
2000. Thelma died on August 26, 2001, and, according to the estate,
Thelma made several of the relevant statements in July and August
2001, just weeks before her death. The estate thus argues that “[a]t
the time [she] discussed the oral trust agreement with her
daughters . . . , Thelma was in a state of imminent, impending
death—and, in fact, she died very soon thereafter . . . from her long
bout with cancer.”

¶17 Sam, however, points out that during the summer of 2001,
Thelma was undergoing chemotherapy and, in fact, had been
receiving chemotherapy treatment on August 26, 2001, when she
suffered an unexpected heart attack and passed away. He
maintains that “Thelma could not have anticipated the heart attack,
and if she had abandoned all hope of recovery from her cancer,
then she would not have been undergoing chemotherapy treatment
on the day she died.” Sam thus argues that “there is . . . no
evidence that Thelma had abandoned all hope of recovery from her
cancer or thought her death was imminent.” Indeed, some of
Thelma’s statements were requests that should something happen
to Sam at a time when she, for some reason, was unable to act
according to the purported verbal agreement, her daughters should
do so for her. These statements do not indicate that Thelma was
contemplating her imminent death but, instead, was considering
the implications of Sam’s death and her own incapacitation. Such
facts defeat whatever inference might otherwise be drawn simply
from the fact that some statements were made shortly before her
death and during a period of time that she was battling cancer.
Other statements were made even earlier, at a time less proximate
to the date of her death, and her cancer diagnosis alone cannot
satisfy the exception. Thus, because the evidence does not support
a determination that Thelma “so fully expected to die from an
existing affliction that [she] had in fact abandoned all hope of
recovery,” St. Clair, 282 P.2d at 326, we conclude that the district
court acted within its discretion in ruling that Thelma’s statements

20120070‐CA 10 2013 UT App 208
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are inadmissible hearsay and not subject to the dying declaration
exception.

2. There is No Confidential Relationship.

¶18 Because Thelma’s statements are inadmissible, the estate is
left to rely on Sam’s statements, the parties’ conduct, and the deeds
to establish a question of material fact about the existence of an oral
trust. On appeal, the estate argues that Sam’s statements and the
improvements Thelma made to Parcel 136 are sufficient to create
such a fact question as to whether Yia Yia, Thelma, and Sam
intended to create a trust. However, we need not decide whether
that evidence would be sufficient to survive summary judgment,
because without Thelma’s statements, the estate has failed to
provide sufficient evidence of the existence of a confidential
relationship to take the claimed oral trust outside the constraints of
the statute of frauds.

¶19 Because an oral express trust is typically not accompanied
by a signed writing, a transfer of land that was made with the
intent to create a trust will generally fail under the statute of
frauds. Rawlings v. Rawlings, 2010 UT 52, ¶ 27, 240 P.3d 754. To
avoid the effect of the statute of frauds, the estate must show the
existence of one of the qualifying circumstances identified by
section 45 of the Restatement (Second) of Trusts. Id. ¶ 28 (citing
Restatement (Second) of Trusts § 45 (1959)). On appeal, the only
such circumstance that the estate advances is the existence of a
confidential relationship.7 Id. ¶¶ 26–28 (explaining that “[w]here a
transfer of land was made with the intent to create . . . a trust, the
trust will generally fail unless evidenced by a writing that complies
with the” statute of frauds, but the transfer may be exempt from
the statute of frauds if “‘the transferee at the time of the transfer
was in a confidential relation to the transferor’” (quoting

7. The estate argued the applicability of all three of the exceptional
circumstances referred to in section 45 of the Restatement (Second)
of Trusts before the district court, but its argument on appeal is
limited to the existence of a confidential relationship.

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 Howard v. Manes

Restatement (Second) of Trusts § 45(1)(b) (1959))). So even
assuming that Sam’s statements are sufficient to create a question
of fact about whether he, Thelma, and Yia Yia intended to hold
Parcel 136 in trust, the estate would still have to prove the existence
of a pertinent confidential relationship.

¶20 In granting summary judgment, the district court concluded
that “[t]he familial relationship among Yia Yia, Thelma . . . , and
Sam . . . , by itself, is insufficient to establish a confidential
relationship at the times of the conveyances of Parcel 136” and that
the estate “has not presented any additional competent evidence
regarding a confidential relationship.” On appeal, the estate argues
that the district court erred in reaching that conclusion. In
particular, the estate argues that “a confidential relation is (i)
presumed as to [Sam’s] mother; (ii) similarly presumed as to his
nieces and nephews—Thelma’s children—as beneficiaries of the
oral trust; and (iii) at a bare minimum, a question of fact for the
jury.” We conclude that the estate has failed to demonstrate an
issue of fact on this question; Sam’s familial relationships are
inadequate by themselves to show a confidential relationship, and
the estate has not alleged enough additional facts to survive
summary judgment.8

8. In its opening brief on appeal, the estate limited its argument to
the relationships between Yia Yia and Sam and between Sam and
the grandchildren. It made only a passing reference to a
confidential relationship between Sam, Thelma, and Yia Yia in a
section addressing another issue without any legal analysis. Then,
in its reply brief, the estate expanded its argument to include the
relationships between Sam and Thelma and among Sam, Thelma,
and Yia Yia.
We limit our analysis to the relationships identified in the
estate’s opening brief: those between Sam and the grandchildren
and between Sam and Yia Yia. See Allen v. Friel, 2008 UT 56, ¶ 8, 194
P.3d 903 (“[A]n appellant’s reply brief shall be limited to answering
any new matter set forth in the opposing brief,” and “issues raised
by an appellant in the reply brief that were not presented in the
(continued...)

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 Howard v. Manes

¶21 The estate’s contention that the trustee–beneficiary
relationship between Sam and the grandchildren creates a
confidential relationship fails for two reasons. First, the estate’s
attempt to prove a confidential relationship through a
trustee–beneficiary relationship necessarily begs the very question
this court is charged with resolving—whether Sam held Parcel 136
pursuant to an oral trust in favor of the grandchildren in the first
place. This is because in order to establish the existence of a trust
in the face of the statute of frauds, the estate must first satisfy the
requirements of an enforceable oral express trust, one of which is
the existence of a confidential relationship. But the confidential
relationship between trustee and beneficiaries does not arise absent
an enforceable trust. So by relying on the trustee–beneficiary
relationship between Sam and the grandchildren to establish a
confidential relationship, the estate essentially presumes the

8. (...continued)
opening brief are considered waived and will not be considered by
the appellate court.” (citation and internal quotation marks
omitted)); Utah R. App. P. 24(c).
In any event, we note that the estate does not point to any
facts that might indicate that a confidential relationship existed
between Thelma and Sam at the time of the 1996 conveyance.
Generally, a “confidential relationship arises when a party, after
having gained the trust and confidence of another, exercises
extraordinary influence over the other party.” In re Estate of Ioupe,
878 P.2d 1168, 1174 (Utah Ct. App. 1994) (citation and internal
quotation marks omitted). According to the estate, Thelma’s cancer
returned in “the late 1990s or early 2000,” and she was in good
enough health to take out a $35,000 loan to build a large barn on
Parcel 136 as late as 1999. The estate also makes clear that “Sam
never participated or assisted financially in the costs or expenses
associated with the farming operations on Parcel 136.” These facts
do not seem to support an inference that Sam occupied a “‘position
of superiority’” over Thelma in 1996, see Webster v. Lehmer, 742 P.2d
1203, 1206 (Utah 1987) (quoting Bradbury v. Rasmussen, 401 P.2d
710, 713 (Utah 1965)). And, as we discuss infra ¶¶ 23–24, the
familial relationship alone is insufficient.

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 Howard v. Manes

existence of the same trust that the confidential relationship is
necessary to establish. Thus, the requisite confidential relationship
cannot be based on a trustee–beneficiary relationship between Sam
and the grandchildren. If it were otherwise, every oral trust would
be excepted from the statute of frauds because of the resulting
confidential relationship of trustee and beneficiary, and the other
factors addressed by section 45 of the Restatement (Second) of
Trusts would be superfluous.

¶22 Second, the grandchildren were neither the transferee nor
the transferor in any of the relevant transactions. To exempt the
creation of an oral trust in real property from the statute of frauds,
a confidential relationship must have existed between the
transferee and transferor at the time of the transfer. See Rawlings,
2010 UT 52, ¶ 28 (noting that a constructive trust can be created if
an owner “transfers land . . . to another in trust for a third person”
and “‘the transferee at the time of the transfer was in a confidential
relation to the transferor’” (quoting Restatement (Second) of Trusts
§ 45(1)(b) (1959))). Each time Parcel 136 was conveyed—in 1996,
1999, and 2002—the transfers were exclusively among or between
Yia Yia, Sam, and Thelma. The grandchildren were never
transferees or transferors with respect to any of these conveyances.
Therefore, any confidential relationship Sam may or may not have
had with the grandchildren at the time of these transfers is
irrelevant.

¶23 In support of its claim of a confidential relationship between
Yia Yia and Sam, the estate relies on the proposition that “‘[a]
confidential relationship is presumed between parent and child.’”
(Emphasis omitted) (quoting Baker v. Pattee, 684 P.2d 632, 636 (Utah
1984)). According to the estate, this presumption is sufficient to
create a genuine issue of material fact as to the existence of the
requisite confidential relationship.

¶24 “However, the mere relationship of parent and child does
not constitute evidence of such confidential relationship.” In re
Estate of Jones, 759 P.2d 345, 347–48 (Utah Ct. App. 1988)
(explaining that the statement in Baker that a confidential
relationship is presumed to exist between a parent and child was

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 Howard v. Manes

“unsupported obiter dictum”), rev’d on other grounds, 858 P.2d 983
(Utah 1993). Rather, a “confidential relationship arises when a
party, after having gained the trust and confidence of another,
exercises extraordinary influence over the other party.” In re Estate
of Ioupe, 878 P.2d 1168, 1174 (Utah Ct. App. 1994) (citation and
internal quotation marks omitted). “[A] few relationships, such as
that of attorney and client, are presumed to be confidential, [but]
‘[i]n all other relationships the existence of a confidential
relationship is a question of fact.’” Id. (third alteration in original)
(quoting In re Estate of Jones, 759 P.2d at 347).

“[Although] kinship may be a factor in determining
the existence of a legally significant confidential
relationship, there must be a showing, in addition to
the kinship, [of] a reposal of confidence by one party
and the resulting superiority and influence on the
other party . . . . Mere confidence in one person by
another is not sufficient alone to constitute such a
relationship.”

Id. (alteration and omission in original) (quoting In re Estate of Jones,
759 P.2d at 347–48). Accordingly, the district court correctly
concluded that “[t]he familial relationship . . . , by itself, is
insufficient to establish a confidential relationship.”

¶25 Thus, the burden still rests on the estate to prove the
presence of the confidential relationship that it claims existed
between Sam and Yia Yia—or more precisely, to demonstrate a
genuine issue of material fact regarding whether such a
relationship existed between Sam and Yia Yia at the time of a
pertinent conveyance.

¶26 The estate has failed to carry its burden. As we have
discussed, in order to exempt an oral trust from the statute of
frauds, a confidential relationship must exist between the
transferor and transferee “at the time of the transfer.” See Rawlings
v. Rawlings, 2010 UT 52, ¶ 28, 240 P.3d 754. The estate identifies
three transfers in its brief that it believes are relevant to the
imposition of a constructive trust—Yia Yia’s 1996 conveyance to

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herself, Sam, and Thelma as joint tenants; Thelma’s 1999 transfer to
herself, Yia Yia, and Sam; and Yia Yia’s 2002 conveyance to Sam.
Although the estate’s brief is not entirely clear on this point, it
appears to rely exclusively on the 1996 transfer, arguing that “the
1996 deed from Yia Yia to herself, Thelma and Sam, to protect
Parcel 136 . . . is unmistakably consistent with . . . intent to create a
trust relationship regarding Parcel 136.” (Emphasis added.) By
contrast, the estate cites Thelma’s 1999 conveyance as “consistent
with a ‘confidential’ or fiduciary duty as one of the three
Constructive Trustees under the oral trust.” It also references the
2002 conveyance as “confirm[ing] the Constructive Trustees’ intent
to protect [Parcel 136].” Indeed, in its complaint, its response to
Sam’s motion for summary judgment, and its arguments on appeal,
the estate has consistently asserted that a constructive trust was
created to hold Parcel 136 for the benefit of the grandchildren by
the original conveyance in 1996 and that events subsequent to that
conveyance evince the intent to create such a trust. And at oral
argument before the district court, the estate identified the “initial
transfer” in 1996 as being the transfer that was intended to create
a trust.9 Thus, to avoid summary judgment, the estate must show
an issue of fact regarding whether a confidential relationship
existed between Sam and Yia Yia at the time of the 1996 transfer.

¶27 The estate, however, relies on evidence that is either
inadmissible hearsay or unrelated to the 1996 conveyance. For
instance, it argues that “Thelma’s statements to Angie and Jeannie
prior to her death unmistakably demonstrate . . . the confidential
relationship between Yia Yia, Thelma, and Sam,” but we have
already concluded that none of Thelma’s statements are admissible.
The estate also argues that Sam and Yia Yia had a confidential
relationship because after Thelma’s death in 2001, Yia Yia “spent
most of her time in bed and relied on others to care for her”;

9. This approach is also more consistent with the estate’s argument
below that a confidential relationship existed among Sam, Yia Yia,
and Thelma. As we have explained, however, the estate has not
argued the existence of such a confidential relationship on appeal.
See supra ¶ 20 n.8.

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“mainly spoke and read in Greek, and lacked the ability to read or
speak the English language with . . . any proficiency”; and
“entrusted Sam with the control of her money, relying on him to
deposit her social security checks and pay her bills.” Although
these facts might demonstrate a relationship of trust and
confidence after 2001, they do not imply that Sam “exercise[d]
extraordinary influence” over Yia Yia in 1996. See In re Estate of
Ioupe, 878 P.2d at 1174 (citation and internal quotation marks
omitted). The estate’s brief is otherwise silent regarding the
existence of a confidential relationship at the time of the 1996
conveyance. As a result, the district court correctly concluded that
the estate “has not presented any . . . competent evidence regarding
a confidential relationship,” and the oral express trust claim
therefore cannot survive summary judgment.

¶28 In sum, we conclude that the district court correctly
determined that the estate failed to demonstrate an issue of
material fact as to the creation of a constructive trust under a
theory of oral express trust. To prove a confidential relationship,
the estate could not rely on Thelma’s statements because they are
inadmissible hearsay. We need not address the issue of whether
Sam’s statements raise material questions about the intent to create
a trust because the estate has not convinced us that there are
genuine issues of material fact as to the existence of a confidential
relationship at the time of the 1996 transfer of Parcel 136—the
transfer that is most legally significant to its theory concerning the
imposition of a constructive trust. Because under Restatement
(Second) of Trusts section 45, a confidential relationship is essential
to clear the bar that the statute of frauds poses to the enforceability
of an oral express trust, the district court did not err in granting
summary judgment to Sam on the estate’s theory of oral express
trust.

B. Sam Was Not Unjustly Enriched.

¶29 The estate also argues that the district court erred in
granting summary judgment on its unjust enrichment claim
because there are issues of material fact regarding whether Sam
was unjustly enriched when Thelma’s family constructed a number

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of improvements on the property sometime between 1999 and
2001.10 In particular, the estate argues that without any
participation or financial assistance from Sam, Thelma and her
family (1) operated a farm on Parcel 136 as part of an operation that
also included the adjacent parcel; (2) obtained a loan and
constructed a large barn on Parcel 136 in 1999; and (3) “built
ditches, piped the property, planted seeds, harvested crops, and
paid the property taxes until Thelma’s death” on August 26, 2001.
The estate also references several statements Sam made between
late 2001 and 2005 that it claims acknowledge the estate’s interest
in “one‐half of Parcel 136.” “These facts,” the estate argues,
“compel imposition of an equitable constructive trust.” We affirm
the district court’s summary judgment ruling on the issue.

¶30 “As with claims based on an oral express trust, claims of
unjust enrichment can support the imposition of a constructive
trust.” Rawlings v. Rawlings, 2010 UT 52, ¶ 29, 240 P.3d 754. In
particular, “‘a constructive trust may arise where a person holding
title to property is subject to an equitable duty to convey it to
another on the ground that he would be unjustly enriched if he
were permitted to retain it.’” Id. (quoting Parks v. Zions First Nat’l
Bank, 673 P.2d 590, 599 (Utah 1983)). An unjust enrichment claim
has three elements: “(1) a benefit conferred on one person by
another; (2) an appreciation or knowledge by the conferee of the
benefit; and (3) the acceptance or retention by the conferee of the
benefit under such circumstances as to make it inequitable for the
conferee to retain the benefit without payment of its value.” Id.
(citation and internal quotation marks omitted).

¶31 The estate’s unjust enrichment claim cannot survive
summary judgment because it has not demonstrated an issue of
material fact regarding the third element, inequitable
circumstances. In discussing what constitutes inequitable
circumstances in the context of an unjust enrichment claim, Utah

10. The estate’s brief does not indicate whether Thelma built the
improvements before or after she conveyed Parcel 136 to herself,
Yia Yia, and Sam as joint tenants. See supra ¶ 5 n.4.

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courts have recognized that “an owner cannot retain a benefit
which knowingly he has permitted another to confer upon him by
mistake.” Id. ¶ 49 (citation and internal quotation marks omitted);
accord Jeffs v. Stubbs, 970 P.2d 1234, 1247 (Utah 1998). By contrast,
one who receives “[m]oney or benefits that have been officiously
or gratuitously furnished” has no obligation to disgorge them. Hess
v. Johnston, 2007 UT App 213, ¶ 21, 163 P.3d 747 (citation and
internal quotation marks omitted).

¶32 Accordingly, in Rawlings the Utah Supreme Court affirmed
the imposition of a constructive trust where a farm owner solicited
funds and real property from his siblings through false
representations that he used the farm to support their mother. 2010
UT 52, ¶¶ 42–43. Similarly, in Jeffs, the plaintiffs deeded their
property to a trust and constructed improvements “in reliance
upon the [trust’s] representations that [the plaintiffs] could live on
the land for the rest of their lives.” 970 P.2d at 1247–48. The trust
later declared that each plaintiff was a tenant at will and filed
unlawful detainer and quiet title actions against them. Id. at 1240.
The court held that under those circumstances, the trust was
unjustly enriched and could not retain the value of the
improvements. Id. at 1248.

¶33 Here, even if the estate could demonstrate an issue of
material fact regarding the first two elements of unjust enrichment,
the facts it identifies to show inequitable circumstances are legally
insufficient. First, although Thelma’s discussions with Angie and
Jeannie in 1999 about the oral trust might imply that Sam
intentionally benefitted from the estate’s mistaken belief that an
oral trust existed, we have already held that these statements are
inadmissible hearsay. See supra ¶¶ 15–17. Second, Sam’s statements
after Thelma’s death in 2001 might create a disputed issue of fact
as to whether Sam entered into an oral agreement with Thelma or
exploited her children’s belief that such an agreement existed. But
the estate has provided no evidence that any of these statements
predated the estate’s efforts to improve Parcel 136. According to
the estate, Thelma obtained financing to construct the barn in about
1999, and her family built the other improvements during the same
general time frame before Thelma’s death. The earliest admissible

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statement that the estate identifies to show Sam allowed the estate
to “confer [a benefit] upon him by mistake,” see Rawlings, 2010 UT
52, ¶ 49 (citation and internal quotation marks omitted), occurred
“[f]ollowing Thelma’s death” in “two discussions with Sam [and
Jeannie]” after the improvements were already built. Thus, unlike
the plaintiffs in either Jeffs or Rawlings, who improved or
transferred property in reliance on misleading statements and
omissions, the estate cannot argue that Sam’s statements
encouraged Thelma and her children to build improvements on
Parcel 136 under a mistaken belief that an oral trust existed,
because the only statements on which the estate relies occurred
after the improvements were made.

¶34 Nor can the estate show that Thelma built the improvements
with any “expectation of a return benefit, compensation, or
consideration.” See Hess, 2007 UT App 213, ¶ 21 (citation and
internal quotation marks omitted). Utah courts have rejected unjust
enrichment claims where benefits are “officiously or gratuitously
furnished” with no expectation of compensation. Jeffs, 970 P.2d at
1248 (citation and internal quotation marks omitted); Hess, 2007 UT
App 213, ¶ 21. All of the improvements that the estate identifies
were constructed during Thelma’s joint tenancy with Yia Yia and
Sam. As a joint tenant of Parcel 136, Thelma held “a concurrent
ownership . . . with a right of survivorship, i.e., . . . the eventuality
of a full ownership interest, conditioned upon the tenancy
remaining unsevered, and [Thelma] out‐living the other” joint
tenants. See Shiba v. Shiba, 2008 UT 33, ¶ 17, 186 P.3d 329 (emphasis,
citation, and internal quotation marks omitted). Under Utah law,
one joint tenant generally has no obligation to compensate the
other for ordinary repairs or improvements to the property, see
David A. Thomas & James H. Backman, Utah Real Property Law
§ 2.03(a)(3)(iii) (LexisNexis 2010), and the estate has not alleged any
admissible facts that show Sam’s conduct led Thelma to expect
otherwise, see Hess, 2007 UT App 213, ¶ 21. As a result, Thelma
appears to have constructed the improvements under
circumstances that do not support an inference that she expected
any compensation from Sam for her efforts.

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¶35 The estate therefore fails to create an issue of material fact
regarding whether it would be inequitable for Sam to retain any
benefit Thelma may have conferred on him. Accordingly, we are
not persuaded that the district court erred in concluding that the
estate failed to demonstrate the existence of a genuine issue of
material fact as to whether Sam has been unjustly enriched by the
transfer of Parcel 136.

CONCLUSION

¶36 We conclude that the district court correctly granted Sam’s
motion for summary judgment. The estate could not rely on
Thelma’s hearsay statements to establish an oral express trust, and
the estate’s other evidence failed to show genuine issues of material
fact as to the existence of a confidential relationship between the
parties. The oral express trust claim therefore cannot survive
summary judgment. The estate also failed to demonstrate a dispute
of material fact regarding whether it would be inequitable for Sam
to retain benefits Thelma’s family may or may not have conferred
on him. We therefore affirm the district court’s ruling in its
entirety.

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