Nikols v. GOODMAN & CHESNOFF

OPINION

BENCH, Judge:

1 1 Plaintiff John Nikols appeals from the trial court's denial of his motions to discharge writs of attachment against four properties that were legally titled in his son's name. We affirm because Plaintiff failed to establish the existence of a purchase money resulting trust in his favor by clear and convincing evidence.

*297BACKGROUND

12 At the center of this controversy are four parcels of land (the Properties) legally titled in the name of Plaintiffs adult son, Michael Nikols (Son). It is undisputed that Plaintiff purchased the Properties between 1988 and 1994 and titled them in Son's name. In 2007, the law firm Goodman & Chesnoff obtained a judgment against Son for unpaid legal fees resulting from David Chesnoffs (Chesnoff) representation of Son, who was facing federal drug charges. Chesnoff also sought and obtained writs of attachment against the Properties.

13 Plaintiff initiated this action against Chesnoff, alleging that Plaintiff was the owner of the Properties and requesting that the trial court discharge the writs of attachment. Claiming that he was the only party burdened and benefitted by the Properties and that he never intended the legal transfer of title to Son as a gift, Plaintiff asked the trial court to rule that a purchase money resulting trust existed in his favor.

14 The trial court held an evidentiary hearing to give Plaintiff an opportunity to present evidence relating to his claim of equitable ownership through a purchase money resulting trust. At that hearing, Plaintiff presented only his own testimony as evidence that a purchase money resulting trust existed in his favor. He explained how he funded the purchases and stated that he titled the Properties in Son's name to expedite the purchases in light of Plaintiff's own credit problems. Plaintiff also stipulated to facts concerning his previous debts and creditors that were inconsistent with statements he had made to the trial court at the initial hearing. The stipulation made it clear that the credit problems allegedly causing Plaintiff to title the Properties in Son's name were not resolved until several years after the timing Plaintiff had initially represented.1

15 Neither Son nor Chesnoff testified. Son understandably did not want to run the risk of incriminating himself if subjected to cross-examination. Chesnoff was willing to take the stand but did not do so at the request of Plaintiff, who did not want Ches-noff to disclose information concerning the federal charges facing Son. The trial court ultimately refrained from prospectively ruling that the testimony of Chesnoff and Son could be limited, indicating that those issues could only be resolved once the witnesses took the stand.

T6 The trial court ruled that without any corroborating evidence, Plaintiff's own testimony was insufficient to persuade the court that a purchase money resulting trust had been created. The trial court considered the length of time during which the Properties remained in Son's name, as well as the inconsistent statements Plaintiff had made at the previous hearing, as support for its conclusion. The trial court concluded that Plaintiff had failed to establish that he owned the Properties at the time Chesnoff attached them. Plaintiff now appeals the trial court's ruling.

ISSUES AND STANDARDS OF REVIEW

T7 Plaintiff asks us to reverse the trial court's ruling that the Properties remain subject to execution of the previous judgment against Son. In cases involving equitable issues such as a resulting trust, "we will not disturb the trial court's findings of facts unless the evidence clearly preponderates against [them]." Zion's First Nat'l Bank v. Fennemore (In re Estate of Hock), 655 P.2d 1111, 1114 (Utah 1982); see also Jacobson v. Jacobson, 557 P.2d 156, 158 (Utah 1976) (acknowledging the trial court's "advantaged position" and giving a trial court's findings and judgment "considerable deference" in cases where a party is attempting to reform a deed). We will "assess the quality and quantity of the evidence to determine whether it *298'clearly preponderates against' the trial court's [determination] that the appropriate standard of proof has been satisfied." In re Estate of Hock, 655 P.2d at 1114 n. 1.

ANALYSIS

18 Plaintiff claims that the evidence he presented was sufficient to establish the existence of a resulting trust in his favor and, as a result, that Chesnoff should be precluded from satisfying Son's debt by executing the writs of attachment against the Properties. "[A] purchase money resulting trust is an equitable remedy designed to implement what the law assumes to be the intentions of the putative trustor." Id. at 1114. According to the Restatement (Second) of Trusts, a purchase money resulting trust is presumptively created "where a transfer of property is made to one person and the purchase price is paid by another." Restatement (Second) of Trusts § 440 (1959). However, where the "transferee is a wife, child or other natural object of bounty of the person by whom the purchase price is paid, [the presumption is that] a resulting trust does not arise unless the [payor] manifests an intention that the transferee should not have the beneficial interest in the property." Id. § 442.

{9 The Utah Supreme Court requires a party that seeks to alter or rebut a deed or other such document to do so by clear and convincing evidence. See In re Estate of Hock, 655 P.2d at 1114; Jacobson, 557 P.2d at 158; Northcrest, Inc. v. Walker Bank & Trust Co., 122 Utah 268, 248 P.2d 692, 693 (1952) ("[Olne who asserts the invalidity of a deed must so prove by clear and convincing evidence."). Because Plaintiff's efforts to have the writs discharged attempt to avoid the legal significance of the deed to the Properties, he must prove his alleged purchase money resulting trust by clear and convincing evidence.

I. Sufficiency of the Evidence

110 The evidence that Plaintiff presented at the evidentiary hearing consisted almost entirely of his own testimony. Plaintiff testified concerning his intent in titling the Properties in Son's name, and on appeal, Plaintiff claims that he successfully created a prima facie case that a valid purchase money resulting trust existed in his favor. This prima facie argument mistakes the effect of this evidence on Plaintiff's ultimate burden to prove, by clear and convincing evidence, the existence of the purchase money resulting trust. Plaintiff cannot alleviate himself of his ultimate burden of proof by merely presenting some evidence in support of his claim. Plaintiff bears the responsibility to prove the existence of the purchase money resulting trust by clear and convincing evidence, which has been repeatedly described by Utah case law as evidence demonstrating "that there is no serious or substantial doubt as to the correctness of the conclusion." See Northcrest, 248 P.2d at 698.

T11 For multiple reasons reflected in the record, the trial court concluded that Plaintiff failed to meet his burden and did not sufficiently establish the existence of a purchase money resulting trust. The trial court considered the length of time that the Properties remained in Son's name after the purported reasons for the transfer had long since expired. Other things considered by the trial court included the inconsistencies between statements Plaintiff made prior to and at the evidentiary hearing, and the lack of corroboration of Plaintiffs testimony. Given the high standard of proof required to make Plaintiffs case, we cannot say that the evidence Plaintiff presented clearly preponderates against the trial court's ruling. The quality and quantity of Plaintiffs evidence does not meet the "minimum standards of being clear and convincing." See Sine v. Harper, 118 Utah 415, 222 P.2d 571, 581 (1950); see also id. ("[Wle are required to determine whether within a rather restricted zone the evidence is sufficient to satisfy us that the trial judge could ... reasonably find that the evidence was both quantitatively and qualitatively sufficient to be clear and convincing.").

II. Absence of Other Testimony

¶12 Plaintiff further claims that the trial court improperly precluded Son from testifying at the hearing. The record, however, indicates that the trial court did not prevent any party or witness from testifying. The *299trial court did engage the parties in a forty-page discussion of the potential admissibility of Chesnoff's and Son's hypothetical testimonies. Some of that lengthy discussion could, if isolated from the whole, suggest that the trial court might have forced Son to entirely waive his Fifth Amendment rights in order to testify. When reviewed in context, however, the transcript reveals that the trial court was merely trying to explain that the answers to the parties' hypothetical questions of admissibility and the right to invoke the Fifth Amendment could not be answered definitively until the parties "got into the middle of it." The trial court wanted and needed to hear the specific cross-examination questions and to consider all the facts before it could rule.

118 The trial court's reticence to rule in the abstract comports with Utah case law regarding a witness's invocation of the Fifth Amendment. "Except in unusual circumstances, the privilege against self-incrimination must be invoked in response to each specific question propounded or document or other physical evidence sought.... It may not generally be asserted as a blanket response to all discovery." First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1262 (Utah 1984). Other cases have similarly treated a potential witness's Fifth Amendment protections, ruling that a trial court should not prematurely concern itself with potential invocations of the protections. See State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (holding that the Fifth Amendment "'comes into operation only where a specific question is asked'" (quoting State v. White, 671 P.2d 191, 193 (Utah 1983))); see also Schamanek, 684 P.2d at 1263 (stating that a trial court should not deny the Fifth Amendment privilege without first carefully consid-6 ¢ ering "'all the circumstances in the case'" (quoting Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118 (1951))).

114 Here, the record demonstrates that the trial court was skeptical about the propriety of Son evading all of the questions opposing counsel might seek to ask by invoking the Fifth Amendment. However, Son never took the stand and did not refuse to answer any specific questions, Plaintiff was therefore not entitled to a ruling on the issue. "The strong judicial policy against giving advisory opinions" likewise precludes us from ruling on the ultimate propriety of any of the potential testimony in this case. See Merhish v. H.A. Folsom & Assocs., 646 P.2d 731, 732 (Utah 1982). The trial court did not improperly preclude anyone from testifying. Its lengthy dialogue with the parties simply explored-prior to the need for an actual ruling-what topics might be allowed on cross-examination. Ultimately, the trial court left it to the parties to decide who would take the stand.2

CONCLUSION

T 15 Although Plaintiff presented some evidence at the hearing in support of his claim, the trial court did not err in concluding that Plaintiff failed to establish a purchase money resulting trust by the requisite clear and convincing evidence. Plaintiffs own self-serving testimony simply did not stand up under the weight of the high standard of proof he was required to meet. The trial court's discussion concerning the admissibility of hypothetical testimony from Chesnoff and Son, as well as the potential Fifth Amendment implications arising therefrom, did not improperly prevent any party or witness from testifying.

116 We therefore affirm the decision of the trial court.

. Plaintiff's testimony and the stipulation reached by the parties raise factual questions as to what Plaintiff's motivations were in titling the Properties in Son's name. The trial court has not determined, factually, whether Plaintiff's actions were indeed an attempt to defraud his creditors and whether such fraud actually occurred. Furthermore, even if we assume that Plaintiff intended to defraud his creditors, Ches-noff is clearly not one of Plaintiff's creditors. Deciding the case on the doctrine of unclean hands would therefore necessitate several levels of analysis not addressed below.

. The issue of Chesnoff's potential testimony was also resolved in a way that did not require a direct ruling from the trial court: Chesnoff acquiesced to Plaintiff's own request that he not testify after Chesnoff made it clear that his testimony could do damage to Son's defense of the pending federal charges.