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...) 2013 UT App 208

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

A NGELINE H OWARD

, Plaintiff and Appellant,

v.

S PYROS M ANES AND C ARYN S ORENSEN M ANES

, 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

J UDGE S TEPHEN L. R OTH authored this Opinion, in which J UDGES

W ILLIAM A. T HORNE J R

. and M ICHELE M. C HRISTIANSEN

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.Howard v. Manes

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.

20120070

‐ CA 2013 UT App 208 2 BACKGROUND 2

¶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 theirHoward v. Manes

20120070

‐ CA 2013 UT App 208 3 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.Howard v. Manes

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.

20120070

‐ CA 2013 UT App 208 4 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 materialHoward v. Manes

20120070

‐ CA 2013 UT App 208 5 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.Howard v. Manes

20120070

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

20120070

‐ CA 2013 UT App 208 7 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 byHoward v. Manes

20120070

‐ CA 2013 UT App 208 8 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 reliesHoward v. Manes

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).

20120070

‐ CA 2013 UT App 208 9 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 withHoward v. Manes

20120070

‐ CA 2013 UT App 208 10 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 statementsHoward v. Manes

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.

20120070

‐ CA 2013 UT App 208 11 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’” (quotingHoward v. Manes

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...)

20120070

‐ CA 2013 UT App 208 12 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. 8Howard v. Manes

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.

20120070

‐ CA 2013 UT App 208 13 ¶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 theHoward v. Manes

20120070

‐ CA 2013 UT App 208 14 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 wasHoward v. Manes

20120070

‐ CA 2013 UT App 208 15 “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 toHoward v. Manes

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.

20120070

‐ CA 2013 UT App 208 16 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”;Howard v. Manes

20120070

‐ CA 2013 UT App 208 17 “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 numberHoward v. Manes

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.

20120070

‐ CA 2013 UT App 208 18 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, UtahHoward v. Manes

20120070

‐ CA 2013 UT App 208 19 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 admissibleHoward v. Manes

20120070

‐ CA 2013 UT App 208 20 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.Howard v. Manes

20120070

‐ CA 2013 UT App 208 21 ¶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.