2016 UT App 179

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ESTATE OF VERN A. ANDERSON

DENISE TERRY,

Appellant,

v.

BRYAN J. ANDERSON,

Appellee.

Memorandum Decision

No. 20140382-CA

Filed August 25, 2016

Third District Court, Salt Lake Department

The Honorable Royal I. Hansen

No. 103900939

Margaret S. Edwards, Attorney for Appellant

Brent K. Wamsley, Attorney for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this

Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.

and KATE A. TOOMEY concurred.1

GREENWOOD, Senior Judge:

¶1 Denise Terry appeals the trial court’s exclusion of her 

expert witness report and its denial of her motion for a new trial. 

We affirm.

¶2 Vern A. Anderson (Anderson) died in February 2009. In 

November of that same year, his son, Bryan J. Anderson (Bryan), 

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
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20140382-CA 2 2016 UT App 179

filed an application for the informal administration of 

Anderson’s estate, indicating that Anderson had died intestate. 

The trial court appointed Bryan as personal representative for 

Anderson’s estate. Anderson’s daughter, Denise Terry (Denise), 

thereafter filed a motion to set aside the appointment, alleging 

that Anderson had executed a will in 1980 that, to her 

knowledge, had never been revoked. She also indicated that 

she was in possession of both the will and a gift letter signed by 

her father, dated January 1, 2008, which purportedly gave 

Denise all of Anderson’s “personal belongings, possessions 

[a]nd properties including two homes located in Kearns, Utah.”

Denise asserted that she had been the caregiver for both her 

father and mother prior to their deaths. Bryan contested the 

authenticity of the gift letter, and the parties prepared to proceed 

to trial on that issue.

¶3 In February 2012, Bryan designated Kathy S. Carlson as 

his expert witness and forensic document examiner. In March 

2012, Denise disclosed that she intended to call George J.

Throckmorton as her expert witness. Each party disputed some 

aspect of the other’s expert designation, but at a pretrial 

conference in August, the trial court and the parties agreed that 

the court would appoint a single expert witness to serve in the 

case, for whom the parties would share the cost.2 In October, 

“[a]fter reviewing the qualifications of the proposed experts, the 

Court [found] that James A. Tarver, Forensic Document 

 

2. Our review of the record reveals that the trial court 

recommended the appointment of a joint expert, and neither 

party objected. Bryan frames this process as an “agreement” that 

the court would appoint a joint expert. In her reply brief, Denise

does not contest this characterization. Thus, while Denise did 

not agree to the specific expert selected by the court, she does 

appear to have agreed to undergo the court’s recommended 

joint-expert selection process.
In re Estate of Anderson

20140382-CA 3 2016 UT App 179

Examiner, [was] the best qualified to serve as the Court’s expert 

in this matter.” The parties submitted to the trial court their 

questions for Tarver, and Tarver provided answers to the 

questions, along with other relevant findings, in a 

“document examination report.”

¶4 As the date set for trial approached, Denise provided 

Bryan with a binder of proposed exhibits. Bryan filed an 

objection to several of the proposed exhibits, including an expert 

witness report prepared by Denise’s preferred expert,

Throckmorton. Denise responded to the objection that the report 

should be allowed “because it is an expert witness report on the 

reliability and validity of the signature found [on] the gift 

letter[].” She contended, “This expert witness report establishes 

that it would be impossible to determine whether or not the 

signature is valid, due to the vast amount and variety of 

medicine that [Anderson] was under the influence [of] at the 

time.” But at trial, when Bryan’s attorney reminded the court 

that there were outstanding objections that needed resolution, 

Denise’s attorney stated, “I think we will agree to letting the 

objections go forward. We don’t need the things that he -- I’ve 

taken them out. I’m not going to be using them today.” 

Accordingly, referring to the objected-to exhibits and to Denise’s 

attorney’s concession, the trial court decided to “exclude those 

from the record by virtue of that.”

¶5 After the conclusion of trial, the court entered written 

findings of fact and conclusions of law. It determined that the 

gift letter Denise presented was “not trustworthy” for several 

reasons. These reasons included that the “type set of the gift 

letter and the notary block are different and do not match”; that 

the “expiration date on the Notary’s Stamp does not match the 

date written in the Notary Block”; that there “was no reference 

to a notary log kept by the Notary Public, which would have 

assisted the Notary Public in his testimony”; that the “signatures 

on these two exhibits are not the same”; that “both parents were 

the owners of the real properties and both were alive on the date 
In re Estate of Anderson

20140382-CA 4 2016 UT App 179

these documents were signed; however, these documents are not 

signed by both parents”; and that Tarver had “stated in his 

report that it is highly probable that the signatures on these 

documents are not genuine.” The court separately found that the 

will was “trustworthy and was evidence of [Anderson’s] wish 

that each child share equally in the distribution from his estate 

and that the gift letter[ was] not consistent with his wishes as 

expressed in his Last Will and Testament.” Thus, the properties 

alluded to in the purported gift letter were part of Anderson’s 

estate and would be administered according to Anderson’s will.

¶6 Denise filed a motion for a new trial, arguing that the 

evidence at trial was insufficient to support the court’s 

conclusion that the gift letter was not trustworthy. The trial court 

denied the motion, asserting that “[Denise] had the burden of 

proof to establish that two homes owned by the late [Anderson] 

prior to his death are properly gifted to her and were not 

property of [Anderson’s] estate” and that Denise had “failed to 

meet that burden.” “In addition to the findings made previously, 

the Court note[d] that the only expert in the case found the gift 

letter[] to [be] forge[d]” and that Denise “offered no expert 

testimony to the contrary.” Denise appeals.

¶7 We are tasked with deciding two issues. First, we consider 

whether the trial court “improperly excluded” Throckmorton’s 

expert witness report. We review the trial court’s decision

regarding the exclusion of expert witness testimony for an abuse 

of discretion. Alliant Techsystems, Inc. v. Salt Lake County Board of 

Equalization, 2015 UT App 288, ¶ 16, 363 P.3d 530. Second, we 

consider whether the trial court erred when it denied Denise’s 

motion for a new trial. We generally review this issue for an 

abuse of discretion. Clayton v. Ford Motor Co., 2009 UT App 154, 

¶ 5, 214 P.3d 865. But because Denise’s challenge rests on a claim 

of insufficiency of the evidence, “we [will] reverse only if, 

viewing the evidence in the light most favorable to the 

prevailing party, the evidence is insufficient to support the 

verdict.” Id.
In re Estate of Anderson

20140382-CA 5 2016 UT App 179

¶8 To begin, we are not persuaded that Denise preserved her 

challenge to the exclusion of Throckmorton’s report. Denise

suggests that she preserved this issue when she filed her 

response to Bryan’s objection to the report. But she fails to 

address the subsequent agreement “to letting the objections go 

forward” because she would not be using those exhibits at trial. 

In her reply brief, she does assert that the “trial court clearly 

ruled on the Throckmorton Report by excluding it based on the 

objection and not due to the withdrawal of it from evidence.” 

Yet this conclusion is the exact opposite of what the transcript 

“clearly” depicts. Following Denise’s assertion that she would 

not be using the report, the trial court indicated it would 

“exclude those from the record by virtue of that.” Given the 

order of the discussion before the trial court, “that” is clearly a 

reference to Denise’s agreement not to use the report. And if this 

had not been Denise’s intention, we would expect to see some 

clarification made on the record or an attempt to introduce the 

report as an exhibit—neither of which occurred at trial.3

¶9 “An issue is preserved for appeal when it has been 

presented to the [trial] court in such a way that the court has an 

opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT 

App 235, ¶ 19, 315 P.3d 448. While the facts of this case indicate 

that the issue was—briefly—presented to the trial court, the 

court did not actually have “an opportunity to rule on that 

issue.” See id. When Denise agreed not to use the report at trial, 

she effectively withdrew her response to Bryan’s objection, and 

the trial court had no need to rule on that response. Cf. State v. 

McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844, aff’d, 2016 UT 3, 365 

 

3. We further note that Denise failed to include the alleged 

exclusion of Throckmorton’s report as a ground for relief in her 

motion for a new trial. And in denying the motion, the trial court 

explicitly found that Denise “offered no expert testimony.” This 

finding supports our reading of the trial transcript.
In re Estate of Anderson

20140382-CA 6 2016 UT App 179

P.3d 699 (“A claim is not preserved for appeal if a party initially 

objects but later, while ‘the wheel’s still in spin,’ abandons the 

objection and stipulates to the court’s intended action.” (footnote 

omitted) (quoting Bob Dylan, The Times They Are A–Changin’

(Columbia Records, 1964)); Williams v. Williams, 2004 UT App 

245U, para. 3 (explaining that where a party fails to request a 

ruling on an issue, “there is no ruling for us to review”). Thus, 

the trial court’s “exclusion” of Throckmorton’s expert witness 

report was actually an acknowledgement of Denise’s decision to 

withdraw the report from evidence.

¶10 But even if the trial court’s statement that it would 

exclude the report “by virtue of that” could be taken as 

sustaining Bryan’s objection to the report, we would still affirm 

the court’s exclusion of that report. First, Denise agreed to the 

trial court’s appointment of the sole expert for the case. And 

second, she cannot show that admission of Throckmorton’s 

expert witness report would have affected the outcome of trial.

¶11 In the course of discovery, Bryan and Denise each 

disclosed an intended expert witness. Then, Bryan sought to 

amend his disclosures to include another expert witness. Denise

objected, indicating that she was “on a limited budget” and that 

adding another expert “would cause great disadvantage and 

prejudice” to her. Acknowledging that multiple experts would 

cost Denise and the estate more money, the court and both

parties agreed to hire one joint expert.

¶12 When Bryan objected to Denise’s proposed admission of 

Throckmorton’s report, he argued that because “all of the parties 

have already accepted James A. Tarver as the Court’s appointed 

expert, the Court should not allow these pages as trial exhibits in 

this matter.” Thus, if in fact the court did sustain Bryan’s 

objection at trial, it did so on those grounds. The parties’ 

agreement to use Tarver as an expert was an implicit agreement 

not to use Throckmorton or the expert witness that Bryan had 

originally disclosed. We fail to see how the trial court’s decision 
In re Estate of Anderson

20140382-CA 7 2016 UT App 179

to enforce such an agreement can be considered an abuse of 

discretion. See Kerby v. Moab Valley Healthcare, Inc., 2015 UT App 

280, ¶ 24, 362 P.3d 944 (“The trial court has broad discretion to 

admit or exclude evidence.” (citation and internal quotation 

marks omitted)).

¶13 “However, even if the trial court abused its discretion, we 

will reverse only if we find that the error is harmful.” State v. 

Archuleta, 850 P.2d 1232, 1240 (Utah 1993). In the present case, 

any error in excluding Throckmorton’s report was harmless. 

A “harmless error is an error that is sufficiently inconsequential 

that there is no reasonable likelihood that it affected the outcome 

of the proceedings.” State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.

¶14 The trial court conducted a thorough review of proposed 

experts before deciding that Tarver was “the best qualified to 

serve as the Court’s expert in this matter.” The court’s decision 

that Tarver was the best sheds light on Tarver’s perceived 

credibility, and his opinions likely carried significant weight 

with the court. Additionally, while Tarver was able to conclude

that “[i]t is highly probable that the questioned Anderson 

signatures . . . are not genuine,” Throckmorton was unable to 

form such a definite conclusion, let alone a conclusion that the 

signatures were in fact genuine. Instead, Throckmorton opined 

only that he “could not determine if the signatures on the 

documents were genuine or forged.” The trial court indicated 

that Denise had the burden of proving that the gift letter was 

genuine. Given that Throckmorton’s report did little to establish 

the gift letter’s authenticity, we are not convinced that admission 

of the report would have changed the outcome of trial.4

 

4. This is to say nothing of the other evidence—presented 

independently from the expert testimony—that the trial court 

used to support its ultimate conclusion that the gift letter was 

not genuine. See infra ¶ 17.
In re Estate of Anderson

20140382-CA 8 2016 UT App 179

¶15 We next consider the trial court’s denial of Denise’s 

motion for a new trial. After the trial court had issued its written 

conclusions, Denise urged the court to grant a new trial, “as 

insufficient evidence was relied upon for the court to conclude 

that the document is not trustworthy.” The evidence was 

insufficient, Denise argued, because “[p]erfectly adequate 

explanations exist for the aspects of the documents held by the 

court to be deficient.” But “[t]he existence of contradictory 

evidence or of conflicting inferences does not warrant 

disturbing” the trial court’s findings or indicate that they are 

supported by insufficient evidence. See State v. Howell, 649 P.2d 

91, 97 (Utah 1982); see also Bonnie & Hyde, Inc. v. Lynch, 2013 UT 

App 153, ¶ 18, 305 P.3d 196 (“We defer to the trial court’s 

advantaged position to weigh that conflicting evidence.”).

¶16 For Denise to demonstrate that the trial court erred in 

denying her motion for a new trial, she must show that the trial 

court relied on insufficient evidence to support its conclusions of 

law. “In other words, demonstrating insufficiency of the 

evidence requires an appealing party to show that all the 

evidence in favor of the verdict cannot support the verdict.” 

Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 33, 31 P.3d 

557 (citation and internal quotation marks omitted).

¶17 In its findings of fact and conclusions of law, the trial 

court highlighted several pieces of evidence that supported its 

ultimate conclusion that the gift letter was not genuine. See supra 

¶ 5. Perhaps most telling, Tarver—as the only expert witness—

opined that Anderson’s purported signature on the gift letter 

was not genuine. This opinion was bolstered by the court’s 

findings that the “type set of the gift letter and the notary block 

are different and do not match” and that the “expiration date on 

the Notary’s Stamp does not match the date written in the 

Notary Block.” The court noted that the notary public’s 

testimony would have been more helpful if he had kept a notary 

log. It also found persuasive that the gift letter included no 

reference to or signature by Anderson’s wife, who jointly owned 
In re Estate of Anderson

20140382-CA 9 2016 UT App 179

the properties referenced in the gift letter as of the date of the 

letter. Viewing this evidence in the light most favorable to Bryan, 

the prevailing party, we cannot conclude that this evidence is 

insufficient to support the trial court’s conclusion.5 See Heslop v. 

Bank of Utah, 839 P.2d 828, 839 (Utah 1992).

¶18 We are not persuaded that Denise effectively offered 

Throckmorton’s expert report as an exhibit at trial due to her 

agreement to jointly use a single expert witness, Tarver, and her 

 

5. Denise also challenges the trial court’s conclusion in its denial 

of her motion for a new trial that Denise “failed to marshal the 

evidence in support of the Court’s findings and Order and show 

how they were not sufficient to support the ruling.” Denise

correctly asserts that “there is nothing in [rule 59 of the Utah 

Rules of Civil Procedure] that requires that the party marshal the 

evidence in the motion [for a new trial].” And while it might 

have been inappropriate for the trial court to reference a 

marshaling requirement when no such requirement exists, we 

are confident that this observation had no impact on the trial 

court’s denial of Denise’s motion for a new trial. The court 

enumerated six points that contributed to its denial of the 

motion. Denise’s supposed failure to marshal the evidence was 

only one of those points. Setting aside any mention of a 

marshaling requirement, the trial court still ruled that (1) the 

findings were sufficient to support the court’s conclusions; 

(2) Denise had the burden to prove that the gift letter was 

genuine; (3) Denise failed to meet that burden because “all of the 

evidence presented at trial established that the gift letter[ was]

not trustworthy and [was] forge[d]”; (4) “the only expert in the 

case found the gift letter[] to [be] forge[d]” and Denise “offered 

no expert testimony to the contrary”; and (5) “there were 

irregularities in the notarization of the gift letter[],” which 

“supported the findings of the expert that the gift letter[ was] 

forged.”
In re Estate of Anderson

20140382-CA 10 2016 UT App 179

voluntary withdrawal of the report, and thus we cannot 

conclude that the trial court excluded it—let alone erroneously. 

We nevertheless determine that even if the trial court erred by 

not accepting Throckmorton’s report, any such error was 

harmless. Furthermore, the evidence at trial was sufficient to 

support the court’s findings of fact and conclusions of law, and 

the trial court therefore did not err in denying Denise’s motion 

for a new trial.

¶19 Affirmed.