Smith v. Kirkland

2017 UT App 16

THE UTAH COURT OF APPEALS

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.

Opinion
No. 20150637-CA
Filed January 26, 2017

Fifth District Court, St. George Department
The Honorable G. Michael Westfall1
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.

1. The original judge assigned to this case was the Honorable
James L. Shumate. After Judge Shumate retired, the case was
reassigned to Judge Westfall in 2014.
 Smith v. Kirkland

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

2. The Declaration of Trust does not grant the Board of Trustees
the power of amendment. The Declaration of Trust states that it
‚shall serve as the complete and official guide for the Trustees in
the pursuit and performance of their duties hereunder; and that
they shall have only such authority, powers, and duties as are
conferred herein.‛

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 Smith v. Kirkland

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.‛

3. Because Smith and Cram are not the only Trustees of the
Trust, they are referred to collectively as the Appellees instead of
the Trustees.

4. The Beneficiaries moved to intervene in Case No. 060501773
and also filed a new suit against Smith and Cram, Case No.
060502132. Additionally, Smith and Cram filed another suit
against the Beneficiaries, Case No. 060502129. In January 2007,
the court consolidated these three cases together under Case No.
060501773.

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 Smith v. Kirkland

¶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

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 Smith v. Kirkland

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 judgment,
it determined that any failure to prepare and deliver the Lease
and Stewardship Agreements did not invalidate the Trust.

ANALYSIS

I. The Second Motion for Summary Judgment

¶14 The Beneficiaries first contend there were genuine issues
of material fact that should have precluded the grant of
summary judgment. The Beneficiaries did not file an opposition
to the second motion for summary judgment. They argue that
even though the Appellees’ motion went unopposed, the court
erred by granting summary judgment.

¶15 ‚We review a district court’s grant of summary judgment
for correctness and afford no deference to the court’s legal
conclusions.‛ Basic Research LLC v. Admiral Ins., 2013 UT 6, ¶ 5,
297 P.3d 578 (citation and internal quotation marks omitted). We
view ‚the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.‛ Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal
quotation marks omitted).

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 Smith v. Kirkland

¶16 Summary judgment should be granted if ‚the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.‛ Utah R. Civ. P. 56(c) (2013).5
‚Each fact set forth in the moving party’s memorandum is
deemed admitted for the purpose of summary judgment unless
controverted by the responding party.‛ Id. R. 7(c)(3)(A).6
However, ‚summary judgment may not be entered against the
nonmoving party merely by virtue of a failure to oppose‛;
rather, a court may grant summary judgment against a defaulted
party ‚only ‘if appropriate.’‛ Pepperwood Homeowners Ass’n v.
Mitchell, 2015 UT App 137, ¶ 6, 351 P.3d 844 (quoting Utah R.
Civ. P. 56(e)).

¶17 The Appellees’ second motion for summary judgment
raised two issues: (1) how much, if any, compensation Smith was
owed for his services as Trust manager, and (2) whether the
Appellees, as Trustees, had breached their fiduciary duties to the
Beneficiaries. These were the same issues raised in the
Appellees’ first motion for summary judgment, which the court
denied, stating there were ‚genuine issues of material fact‛
regarding these two claims and reserving them for trial.

¶18 The Beneficiaries argue that even though they did not file
an opposition memorandum, the evidence the Appellees
presented in their motion did not entitle them to summary
judgment. In support of their second motion for summary
judgment, the Appellees submitted much of the same evidence
they had used in support of their first motion. In fact, the

5 .The district court’s decision was in 2013, and we therefore cite
the version of the Utah Rules of Civil Procedure that was in
effect at the time of those proceedings.

6. In the current edition of the Utah Rules of Civil Procedure,
similar language can be found under rule 56(a)(2)–(4).

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 Smith v. Kirkland

Appellees submitted only two additional documents—a decision
from the 2007 Arbitration Board in support of the breach issue
and a ‚Trust Management Example‛ in support of the
compensation issue. The Beneficiaries assert the 2007 Arbitration
Board’s decision is irrelevant to the proceedings before the court
and inadmissible. They likewise claim the Trust Management
Example is inadmissible. The Beneficiaries claim that the court
erred in granting the second motion for summary judgment
because the district court denied the Appellees’ first motion for
summary judgment and because their second motion for
summary judgment was supported by no additional admissible
evidence.7 We agree.

7. The Beneficiaries also assert that the law of the case doctrine
precluded the Appellees from ‚reopening the same issues‛
where the district court had previously denied summary
judgment. They cite IHC Health Services Inc. v. D & K Management
Inc., 2008 UT 73, 196 P.3d 588, for the proposition that, ‚*w+hile a
case remains pending before the district court prior to any
appeal, the parties are bound by the court’s prior decision.‛ Id.
¶ 27. But the Beneficiaries ignore the next few lines of that case,
which explain that ‚the court remains free to reconsider that
decision . . . sua sponte or at the suggestion of one of the
parties.‛ Id. ‚As long as the case has not been appealed and
remanded, reconsideration of an issue before a final judgment is
within the sound discretion of the district court.‛ Id.; see also Mid-
America Pipeline Co. v. Four-Four Inc., 2009 UT 43, ¶ 11, 216 P.3d
352 (explaining that the law of the case doctrine ‚does not
prohibit a district court judge from revisiting a previously
decided issue‛ but rather allows a court ‚to decline to revisit
issues within the same case once the court has ruled on them‛
(citation and internal quotation marks omitted)). Accordingly,
we conclude that the law of the case doctrine did not prevent the
district court from considering a second motion for summary
judgment.

20150637-CA 7 2017 UT App 16
 Smith v. Kirkland

¶19 Rule 56 of the Utah Rules of Civil Procedure sets out the
requirements for affidavits that accompany a motion for
summary judgment. Utah R. Civ. P. 56(e). ‚Supporting and
opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the
matters stated therein.‛ Id. Thus, ‚*i+nadmissible evidence
cannot be considered in ruling on a motion for summary
judgment.‛ Sandy City v. Salt Lake County, 794 P.2d 482, 487
(Utah Ct. App. 1990), rev’d in part on other grounds, 827 P.2d 212
(Utah 1992). Rule 56 suggests that when a motion for summary
judgment is not supported as provided by the rule, an adverse
party may rest upon the allegations or denials of the pleadings.
See Utah R. Civ. P. 56(e). First then, we must determine whether
the Appellees’ second motion for summary judgment was
supported by admissible evidence not contained in the first
motion.

A. The Breach Issue Was Not Supported by Additional
Admissible Evidence.

¶20 In their second motion for summary judgment, the
Appellees provided five facts and one paragraph of argument,
purportedly demonstrating that there was no genuine issue of
material fact as to whether the Appellees breached their
fiduciary duties. The Appellees argued that the 2007 Arbitration
Board had considered the dispute between the parties and
concluded ‚the Trustees have acted in the best interest of the
Trust.‛ The Appellees’ sole argument for summary judgment
was that because ‚[a]n objective arbitration board . . . found no
breach of Trustee’s duties to the Beneficiaries,‛ there was no
genuine issue of material fact. The only evidence submitted in
support of this argument was the decision of the 2007
Arbitration Board.

¶21 The Beneficiaries claim the Appellees misrepresented the
decision of the 2007 Arbitration Board. The Appellees quoted
one line from the Board’s decision in support of their position.

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 Smith v. Kirkland

But the decision also explained that there was a case pending in
district court on the same matters the Board was considering,
and stated ‚the final judgment of that controversy should be left
to that court.‛ The Board only concurred that ‚the Trustees acted
in the Trust’s best interest‛ ‚in all matters not before the
Washington County, Utah 5th District Court.‛ (Emphasis
added.) Furthermore, throughout its decision, the Board
reiterated that certain issues were being adjudicated in the
district court and that ‚judgment should be left to that court.‛

¶22 On its face, the 2007 Arbitration Board’s decision avoided
resolving matters that were then before the district court. Any
conclusion of the Board that the Trustees did not breach their
fiduciary duties therefore had no bearing on this lawsuit and so
cannot be used as a basis for concluding there is no genuine
issue of material fact. Because the 2007 Arbitration Board’s
decision explicitly avoided resolving any matter then before the
district court, the decision does not make the alleged breach of
fiduciary duties more or less probable. As the decision is not
relevant to the issues raised in the district court, it is therefore
not admissible and should not have been considered. See Utah R.
Evid. 401(a), 402.

B. The Compensation Issue Was Not Supported by
Additional Admissible Evidence.

¶23 As to whether Smith was entitled to compensation, and
the amount thereof, the Appellees supplied four facts and two
paragraphs of argument. The facts refer to four documents, three
of which were used in support of the Appellees’ first motion for
summary judgment. The only additional evidence identified in
the second motion was an example regarding trust management,
used to show that the fee Smith charged was reasonable. The
Appellees claimed that ‚*i+n researching other Trust managers in
Southern Utah, it is purported by the Plaintiff and Trustees that
the amount of $50 an hour for Trust management is more than
reasonable. See Exhibit V, Example regarding Trust
Management*.+‛ Exhibit V was a fee schedule from the Western

20150637-CA 9 2017 UT App 16
 Smith v. Kirkland

National Trust Company. For several reasons, this Trust
Management Example is inadmissible and irrelevant, and
because of this, the Appellees’ assertion that the $50 fee is
reasonable is unsupported.

¶24 First, the Utah Rules of Evidence require authentication of
any item of evidence. ‚To satisfy the requirement of
authenticating . . . an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is
what the proponent claims it is.‛ Utah R. Evid. 901(a). There are
several ways of authenticating a document, including testimony
from a witness with knowledge ‚that [the] item is what it is
claimed to be.‛ See id. R. 901(b)(1). There is no evidence or
testimony demonstrating that the Trust Management Example is
what the Appellees claim it to be. Nor is there evidence of any
other authentication; the Appellees merely cited this document
as support for their assertion that $50 an hour was a reasonable
fee and attached the document to their memorandum. Because
the Trust Management Example is unauthenticated it is
inadmissible. In addition, because there is no accompanying
affidavit, there is no evidence that it was made on ‚personal
knowledge‛ as rule 56 of the Utah Rules of Civil Procedure
requires. See Utah R. Civ. P. 56(e).

¶25 Next, rule 7 of the Utah Rules of Civil Procedure requires
a memorandum supporting a motion for summary judgment to
contain a statement of material facts and requires each fact to ‚be
separately stated and numbered and supported by citation to
relevant materials.‛ Id. R. 7(c)(3)(A).8 The Appellees cited the
Trust Management Example in support of their claim that, ‚*i+n
researching other Trust managers in Southern Utah, it is
purported by the Plaintiff and Trustees that the amount of $50
an hour for Trust management is more than reasonable.‛
However, the Trust Management Example does not support this

8. Similar language appears in rule 56(a)(1) of the current Utah
Rules of Civil Procedure.

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 Smith v. Kirkland

assertion. The document lays out a fee schedule for the ‚Western
National Trust Company.‛ Most of the fees outlined in the Trust
Management Example are either flat fees for particular services
rendered or else are based upon a percentage of the annual
market value of investments. The document indicates only one
hourly rate, $150 an hour for ‚extraordinary services rendered,‛
but it does not specify what qualifies as an extraordinary service.
The information from the Trust Management Example does not
shed any light on whether $50 an hour is reasonable
compensation for a trust manager, especially where the
Appellees have not indicated what types of services Smith
rendered to the Trust. Furthermore, the Appellees claimed that
this document was indicative of their research of ‚other Trust
managers in Southern Utah,‛ but they do not show how the
Western National Trust Company is connected to Utah, nor do
they demonstrate evidence of compensation for any other trust
managers in the region. Thus, the Trust Management Example
lends no support to the Appellees’ assertion that Smith’s
compensation was reasonable.

¶26 Because the Trust Management Example was
unauthenticated and does not meet the requirements of rules 7
and 56 of the Utah Rules of Civil Procedure, it is inadmissible to
support the claim that Smith’s compensation was reasonable.

¶27 In sum, the only allegedly new evidence the Appellees
provided in support of the breach and compensation issues was
inadmissible and therefore could not be considered in ruling on
the motion for summary judgment. See Sandy City v. Salt Lake
County, 794 P.2d 482, 487 (Utah Ct. App. 1990), rev’d in part on
other grounds, 827 P.2d 212 (Utah 1992).

C. The District Court Erred by Granting Summary
Judgment.

¶28 We next address whether the district court incorrectly
granted the Appellees’ second motion for summary judgment
when it had denied summary judgment earlier, and where the

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 Smith v. Kirkland

second motion for summary judgment was not supported by
any additional admissible evidence.

¶29 Although the Beneficiaries did not oppose the second
motion for summary judgment, given the history of this case and
the lack of new evidence supporting the second motion, the
court was aware there were genuine issues of material fact that
precluded summary judgment. The district court, just forty-five
days earlier, had reserved the breach and compensation issues
for trial, specifically determining there were genuine issues of
material fact regarding both issues. No discovery took place
between the two motions for summary judgment, and the
second motion had readily apparent deficiencies. For example, it
alleged a small number of facts that were meagerly supported by
inadmissible evidence, it misrepresented the decision of the 2007
Arbitration Board, and it limited its argument to just a few
paragraphs. These flaws were apparent on the face of the motion
and were also identified in the Beneficiaries’ motion to strike.

¶30 At the same time, the court was not precluded from
reconsidering the breach and compensation issues on a second
motion for summary judgment. See supra note 7. A district court
‚is not inexorably bound by its own precedents,‛ although
‚prior relevant rulings made in the same case are generally to be
followed.‛ Salt Lake City Corp. v. James Constructors Inc., 761 P.2d
42, 45 (Utah Ct. App. 1988) (citation and internal quotation
marks omitted). But typically, when a district court revisits an
issue on a second motion for summary judgment, new evidence
has come to light. See Unifund CCR LLC v. Shung Chan, 2014 UT
App 25, ¶¶ 1–3, 6, 318 P.3d 782 (per curiam) (affirming a grant of
summary judgment where a factual deficiency in the first motion
was corrected in the second motion); Lamarr v. Utah State Dep’t of
Transp., 828 P.2d 535, 537 n.2 (Utah Ct. App. 1992) (‚The trial
court is free to reconsider its earlier decision, especially
when . . . a party supports a second motion for summary
judgment with additional evidence.‛); James Constructors, 761
P.2d at 45 (affirming the district court’s refusal to reconsider a
motion for summary judgment where the party ‚did not present

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 Smith v. Kirkland

any legal theories that had not already been considered‛ and did
not present any ‚new, material facts that were not before the
court at the time of the original decision to grant the judgment‛).

¶31 Here, however, the new evidence was inadmissible, and
the district court relied on this evidence when it granted the
second motion for summary judgment. In addition, the court
was aware of the deficiencies of the second motion, as they were
apparent on its face. The court’s decision relied on improper
evidence and gave no other explanation for why it would grant
summary judgment just weeks after initially denying it. Thus,
the court’s reliance on this evidence and its decision granting the
second motion for summary judgment in favor of the Appellees
is incorrect, and we therefore reverse.9

II. The Rule 60(b) Motion

¶32 Next, the Beneficiaries contend the district court erred in
denying their rule 60(b) motion to set aside the final judgment.
This issue has become moot. ‚An appeal is moot if during the
pendency of the appeal circumstances change so that the
controversy is eliminated, thereby rendering the relief requested
impossible or of no legal effect.‛ Frito-Lay v. Utah Labor Comm’n,
2009 UT 71, ¶ 33, 222 P.3d 55 (citation and internal quotation
marks omitted).

¶33 Rule 60(b) of the Utah Rules of Civil Procedure allows a
court, in the furtherance of justice, to ‚relieve a party or his legal
representative from a final judgment.‛ Utah R. Civ. P. 60(b). The
Beneficiaries argue the district court should have granted them

9. The Beneficiaries also contend that the district court erred in
granting summary judgment because three of their causes of
action were not included in the second motion for summary
judgment. Because we reverse the district court’s grant of
summary judgment on other grounds, we do not reach this
issue.

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 Smith v. Kirkland

relief from its order denying summary judgment. In light of our
decision reversing the district court’s grant of summary
judgment, this relief has been granted. The rule 60(b) issue is
therefore moot, and we need not address it further.

III. Attorney Fees

¶34 The Beneficiaries also challenge the district court’s award
of attorney fees to the Appellees. Because we reverse the district
court’s order granting summary judgment, we also vacate the
attorney fees that were awarded in connection with that order.

IV. Validity of the Trust

¶35 The Beneficiaries’ final contention is that the district court
incorrectly granted summary judgment when it determined that
the failure of the Trustor to prepare or deliver the Lease and
Stewardship Agreements before his death did not invalidate the
Trust.

¶36 As stated, we review the district court’s legal conclusions
and ultimate grant or denial of summary judgment for
correctness, and view the facts and all reasonable inferences in a
light most favorable to the nonmoving party. See Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600. The moving party must ‚show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.‛ Utah
R. Civ. P. 56(c); see Orvis, 2008 UT 2, ¶ 10.

¶37 The parties do not dispute that the Declaration of Trust
required the Trustor to ‚prepare and deliver‛ Lease and
Stewardship Agreements, and that these agreements were not
delivered before the Trustor’s death. Rather, they dispute
whether the Trustor’s failure to deliver these agreements
invalidated the trust. On the first motion for summary judgment,
the district court concluded that this failure did not invalidate
the trust. The court did not elaborate on how it came to this
conclusion.

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 Smith v. Kirkland

¶38 The Utah Code provides that a district court ‚may modify
the administrative or dispositive terms of a trust or terminate the
trust if, because of circumstances not anticipated by the settlor,
modification or termination will further the purposes of the
trust. To the extent practicable, the modification must be made in
accordance with the settlor’s probable intention.‛ Utah Code
Ann. § 75-7-412(1) (LexisNexis Supp. 2016).

¶39 Under this statute, a district court would be able to
modify the terms of the Trust if an unexpected event occurred.
Even though the Trust required the Lease and Stewardship
Agreements to be prepared, delivered, and signed by the
Trustor, the district court could modify these terms to allow the
Trust’s purposes to be carried out. See Restatement (Third) of
Trusts § 66 reporter’s notes, cmt. a (Am. Law Inst. 2003) (‚Even
though the settlor has expressly forbidden what the court
permits to be done, the theory is that he would not have
forbidden it, but on the contrary would have authorized it if he
had known of or anticipated the circumstances.‛).

¶40 The Declaration of Trust demonstrated that the Trustor’s
intention was for the Lease and Stewardship Agreements to be
issued. The Declaration provided that ‚the Trustor and Trustees
shall issue Stewardships for and among [the] designated
Beneficiaries with signed Lease and Stewardship Agreements‛
and listed several beneficiaries who were to receive these
stewardships and agreements. The death of the Trustor before
the delivery of the agreements could be seen as an unanticipated
circumstance, and as such, the only modification required to
further the intent of the Trustor was to allow the Trustees to
prepare and deliver the Lease and Stewardship Agreements.

¶41 Because the Utah Code allows a court to modify the terms
of a trust when an unanticipated event occurs, the district court
correctly concluded that the Trust was not invalidated when the
Trustor was unable to prepare or deliver the agreements before
his death. Accordingly, the district court was correct in granting
summary judgment on this issue.

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 Smith v. Kirkland

CONCLUSION

¶42 We reverse the district court’s grant of the second motion
for summary judgment because its decision relied on
inadmissible evidence and because genuine issues of material
fact existed regarding the breach and compensation issues.
Because we reverse the court’s grant of summary judgment, we
vacate its award of attorney fees. We decline to address the
district court’s denial of the first rule 60(b) motion, as this issue
now has no bearing on the relief requested. Finally, we affirm
the court’s grant of summary judgment regarding the validity of
the Trust.

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