IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

‐‐‐‐

In the Matter of the Estate of Joseph R.

Wilcock,

Deceased.

____________________________________

Teri Jo Wilcock Hull,

Petitioner and Appellant,

v.

Tamara L. Wilcock aka Tamara

Sanderson

, Todd J. Wilcock

, and Joann

S. Wilcock,

Heirs and Appellees. )

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) OPINION

Case No. 20110095

‐ CA

F I L E D

(August 16, 2012)

2012 UT App 223

‐‐‐‐‐

Fourth District, Provo Department, 073400341

The Honorable Claudia Laycock

Attorneys: Justin D. Heideman and Bradley J. Weber, Provo, for Appellant

Mitchell D. Maughan and Todd A. Bradford, Spanish Fork, for

Appellees

‐‐‐‐‐

Before Judges McHugh, Voros, and Christiansen.1. Because the relevant provisions of the Utah Code have not been materially changed,

we cite the current version for the convenience of the reader.

2. Although the Trust was to become irrevocable upon Father’s or Mother’s death, the

parties have not advanced any arguments based on the irrevocable nature of the Trust

in the trial court or on appeal. Accordingly, we proceed under the assumption that all

beneficiaries to the Trust consented to its revocation and to the distribution of the Trust

assets. See Nolan v. Hoopiiaina ( In re Malualani B. Hoopiiaina Trusts ), 2005 UT App 272,

¶ 14, 118 P.3d 861 (“An irrevocable trust may be revoked only if all beneficiaries thereof

consent.” (internal quotation marks omitted)), aff’d as modified

, 2006 UT 53, 144 P.3d

1129.

20110095

‐ CA 2 McHUGH, Presiding Judge:

¶1 Teri Jo Wilcock Hull (TJ) appeals the trial court’s ruling that her brother Todd J.

Wilcock (Todd) is not required to reimburse $50,000 in life insurance proceeds and

$250,000 in investment losses to the Wilcock Family Trust (the Trust). In particular, TJ

challenges the trial court’s denial of her motion for a new trial based on newly

discovered evidence and the trial court’s failure to impose discovery sanctions on Todd

and their sister, Tamara L. Sanderson (Tam). TJ also argues that the trial court erred in

admitting testimony relating statements of the decedent, Joseph R. Wilcock (Father),

and by not awarding her attorney fees under Utah Code section 75

‐ 7

‐ 1004. See generally

Utah Code Ann. § 75

‐ 7

‐ 1004 (Supp. 2012). 1 We affirm.

BACKGROUND

¶2 On April 14, 1997, Father and Shirlee D. Wilcock (Mother) created the Trust and,

acting as the original trustees, transferred all of their real and personal property into it.

Thereafter, Father and Mother used the Trust to manage all of their assets. TJ, Tam, and

Todd (collectively, the siblings) are the only living children of Father and Mother and

the only beneficiaries of the Trust. Mother died in 1997, and Father died in 2007. 2

¶3 During Father’s lifetime, the Trust owned a portfolio of stocks managed by

Merrill Lynch. Father became disappointed with the rate of return earned by Merrill

Lynch and approached each of his three children for help in managing the portfolio.20110095

‐ CA 3 Both TJ and Tam declined Father’s request, but Todd agreed to assist with management

of the portfolio. Thereafter, Todd “took an active role in managing, investing, trading,

and selling stock, eventually losing approximately $250,000[].” TJ and Tam

(collectively, the sisters) learned about this loss in approximately April 2004. Todd

explained that he lost $250,000 of Trust assets in the stock market, and according to TJ,

Todd never indicated that he would repay the money or that it would otherwise be

restored to the trust. TJ also acknowledged that she never characterized the losses from

the portfolio as a loan to Todd during Father’s life.

¶4 The siblings’ maternal grandfather (Grandfather) owned a $50,000 life insurance

policy, naming the siblings’ uncle (Uncle) as beneficiary. Prior to Grandfather’s death,

Grandfather permitted Todd “to surrender the cash value of the life insurance and

invest it in the stock market.” The trial court found that the insurance company paid

Todd $41,357.25 as the surrender value of the policy and informed Todd that the IRS

would send him a Form 1099R reflecting a taxable gain of $16,357.25. Todd testified

that he paid capital gains tax on the amount reflected on the Form 1099R.

¶5 On April 5, 2004, TJ and Tam accompanied Father to a lawyer’s office so that he

could update his financial planning documents. While there, Father executed a

document titled “Affidavit of Loans.” The Affidavit of Loans recites that Todd

“borrowed over $250,000 from my Trust,” apparently referring to the funds Todd lost in

the stock market, and also indicates that “[Todd] has received insurance monies in the

amount of $50,000, which were to be divided with [TJ and Tam].” It then indicates that

Todd did not distribute any of the $50,000 in insurance proceeds to the sisters or repay

the $250,000 to the Trust and that the amounts are to be treated as interest

‐ free loans

from the Trust. The Affidavit of Loans also provides that the $82,000 Tam borrowed

from the Trust shall be treated as a noninterest

‐ bearing loan. The Affidavit of Loans

concludes with a statement of Father’s express intention that any loan amounts that

remain unpaid at the time of his death “shall be taken from each child’s share to the

extent of his or her balance.”

¶6 The trial court found that after executing the Affidavit of Loans, Father “became

concerned and encountered some sleepless nights” because he felt that he had made a

mistake in executing the document. As a result, Father asked Tam to help him draft a

new affidavit, but she declined. However, a longtime friend of the family (Friend), who

knew Father most of her life and helped care for him in his later years, agreed to assist20110095

‐ CA 4 in drafting the new document. Father made several revisions to Friend’s drafts. On

April 15, 2004, Father read, approved, and signed the document titled “Affidavit of

Trust.” The Affidavit of Trust states that Todd “was entrusted with over $250,000 from

[the] Trust,” that he “lost this money and has not replaced” it, and that Father believed

Todd should have taken “responsibility

. . . for this.” However, the Affidavit of Trust

then recites that TJ and Tam “have decided that [Todd] would not be able to pay this

back. But should admit his wrong doing.” The document also indicates that Todd

received $50,000 in life insurance proceeds, “which were to be divided with [TJ and

Tam].” The next sentence states, “To date he has not distributed these amounts [sic]

shall be treated as loans in favor of my estate and shall not accrue interest.” The

document further recites that the $82,000 Tam borrowed from the Trust “shall also be

treated as a loan in favor of my Trust Estate and shall also not accrue interest.” At the

end of the document, Father directs how the unpaid balance of the loans will be treated

at the time of his death. Although the Affidavit of Trust gives specific instructions for

the satisfaction of any unpaid balance of the insurance proceeds and the loan to Tam, it

makes no mention of any repayment directions in the event that the $250,000 in stock

losses remained unpaid at the time of Father’s death. Instead, after Father’s instructions

concerning the insurance money and the unpaid balance of Tam’s loan, the Affidavit of

Trust states that “the amounts left [in the Trust] shall be divided between the three

children.” Todd was not aware of the existence of either the Affidavit of Loans or the

Affidavit of Trust until shortly before Father passed away.

¶7 On May 10, 2007, approximately three years after Father executed the Affidavit

of Loans and the Affidavit of Trust, Todd drafted and Father executed a new document,

titled Affidavit of Trust/Loans/Stewardship (Affidavit of Stewardship). In this

document, Father indicates that Todd “was directed to manage [the Trust’s] stocks in

the amount of $250,000,” and despite his initial reluctance, he agreed to do so. The

Affidavit of Stewardship further recites that Todd agreed to invest $44,000 from the life

insurance policy surrendered by Grandfather, which he also lost in the stock market.

The Affidavit of Stewardship then states in bold type that Todd “should not be held

responsible for these losses and will receive equal Trust Assets along with his sisters.”

When Father signed this document, on May 10, 2007, Todd and Tam were present, as

was a banker and notary public (Banker), who had done business with Father for over

twenty years.20110095

‐ CA 5 ¶8 Before notarizing the documents, Banker spoke with Father for fifteen to twenty

minutes, and although Father was shaky and wobbly on his feet, Father did not appear

to be confused. Banker also indicated that prior to notarizing the Affidavit of

Stewardship, he asked Father several questions to ascertain whether Father had the

requisite mental capacity to sign the document. Banker told the court that he would not

have notarized the documents if he had any doubts as to Father’s competency. Only

after assuring himself of Father’s competency did Banker allow Father to execute the

Affidavit of Stewardship, which Banker then notarized.

¶9 Approximately a week later, Father fell, striking the left side of his chest and

puncturing his lungs. Father chose to forego a painful procedure to drain his lungs,

which likely would have saved his life. He made this decision himself, dealing directly

with his treating physicians. Father died on May 19, 2007. At that time, he did not own

any assets outside of the Trust, and the Trust owned six separate parcels of real

property, several bank accounts, and various items of personal property.

¶10 After Father’s death, TJ was appointed personal representative and brought a

probate action, later converted to an action to dissolve the Trust and distribute its assets.

Among other things the siblings disputed, TJ disagreed with Todd and Tam concerning

the distribution of the Trust assets. According to TJ, Todd’s share should be reduced by

the $50,000 in life insurance proceeds and the $250,000 in investment losses.

¶11 A bench trial began on August 30 and was expected to conclude on September 2,

2010. On the third day of trial, the parties acknowledged that they would not finish in

the time allotted. They asked the court to bifurcate the trial between issues it could

decide based on the evidence already heard and those reserved for a second phase of

trial. Although the parties were hopeful that they could resolve the reserved issues

themselves, they agreed to a second phase trial date of September 17, 2010, in the event

that those attempts were unsuccessful. The two issues to be decided in the first phase

(Phase I) of trial, based on the three days of evidence already presented, were whether

Todd was obligated to repay the trust the $250,000 and the $50,000 from the life

insurance policy.

¶12 The trial court issued its written Findings of Fact and Conclusions of Law as to

those Phase I issues on February 25, 2011. It found that during the course of Friend’s

interactions with Father while drafting the Affidavit of Trust, Father indicated that he3. TJ does not challenge the trial court’s determination that the Affidavit of Trust

replaced the Affidavit of Loans.

20110095

‐ CA 6 and Todd managed the stock portfolio together and “that they both had made a

mistake.” The trial court also found that Father told Friend that “the loss of the

proceeds from the portfolio was forgiven and [that Father] affirmed that this was what

he wanted to do.” It further found that approximately one month after executing the

Affidavit of Trust, Father reaffirmed to Friend his intent to forgive Todd for the loss of

the $250,000. In weighing the testimony, the trial court found Friend to be “a credible

and impartial witness and relied heavily on her testimony,” noting that Friend “had

nothing to gain from the outcome of the action.” The trial court also found Tam’s

testimony that Father told her that he and Todd had invested the $250,000 together

credible.

¶13 Based primarily on this testimony, the trial court first determined that Father’s

“intent was to attempt to correct any mistakes or poor choices he may have made in [the

Affidavit of Loans] and replace it with [the Affidavit of Trust], something he thought

would better reflect his feelings at the time.” 3 The trial court then concluded that the

Affidavit of Trust was ambiguous because the only reference to the $250,000 was in the

beginning of the document and it was never referred to as a loan. The court explained

that if Father intended to forgive the $250,000 he never said so in the document, but on

the other hand, the document did not indicate that Todd was to repay the money or that

it should be deducted from his share of the Trust assets.

¶14 Because the trial court could not determine Father’s intent with regard to the

$250,000 from the Affidavit of Trust alone, it looked to extrinsic evidence to determine

its meaning. Relying primarily on the testimony from Friend and Tam, the court

determined that the Affidavit of Trust’s provision that “[Todd] should admit his wrong

doing,” did not require Todd to admit his wrongdoing before the amount would be

forgiven. In addition, the trial court relied on the fact that Father had asked each of the

siblings to help him manage the Trust’s stock portfolio but only Todd agreed to do so.

Ultimately, the trial court found that in the Affidavit of Trust, Father intended to relieve

Todd of any obligation with respect to the stock market losses.

¶15 Next, the trial court considered the effect of the Affidavit of Stewardship,

executed three years after the Affidavit of Trust. TJ argued that Father executed the20110095

‐ CA 7 Affidavit of Stewardship due to the undue influence of her siblings and that it did not

reflect Father’s wishes. To resolve that issue, the trial court relied on testimony from

Tam and Banker, both of whom it found to be credible, and on testimony from Friend,

the person the court determined “to be in all probability the most credible witness.” It

also found persuasive the fact that immediately prior to his death, only nine days after

executing the Affidavit of Stewardship, Father’s doctors considered him competent

enough to make his own decision of whether to forgo a potentially lifesaving medical

procedure. Based upon all of the evidence, the trial court determined that “[Father] was

competent and knew what he was doing up to the day that he passed away,” and that

the Affidavit of Stewardship had been validly executed. Additionally, the trial court

concluded that the Affidavit of Stewardship was merely a “clarification” of the first few

sentences of the Affidavit of Trust and “ma[de] it very clear that Todd should not be

responsible for the[] losses and will receive equal Trust Assets along with his sisters.”

The trial court referred to the Affidavit of Stewardship as “seal[ing] the deal,” meaning

that it reaffirmed Father’s intent in the Affidavit of Trust to forgive Todd’s loss of the

$250,000.

¶16 With respect to the $50,000 of life insurance proceeds, the court determined that

Father was not “in any position to take control of, make allowances or decisions or

otherwise dictate the distribution of the life insurance monies, as he may have

attempted to do in [the Affidavit of Loans, the Affidavit of Trust, and the Affidavit of

Stewardship].” The court reasoned that Father was neither the owner nor the

beneficiary of the policy and that the insurance company paid the money to Todd

without restriction. Accordingly, the trial court determined that the $50,000 was not a

part of the Trust estate and that Father had no authority to dictate its distribution to the

sisters.

¶17 On September 15, 2010, before trial on the remaining issues, TJ filed a motion for

a new trial with respect to the issues decided by the trial court in Phase I. The basis of

the motion was that TJ’s husband (Husband) had discovered new evidence in online

records of the Utah County Recorder’s Office. Specifically, Husband found a

Certification of Trust related to the “Farm Property” (Certification) that was signed by

Tam and Todd on May 9, 2007, one day before Father signed the Affidavit of

Stewardship. The Certification states that Todd and Tam are the cotrustees of the Trust

because “[Father] is incapacitated and no longer qualified to act as Trustee under the4. According to Todd and Tam, the Certification was executed at Father’s request in

order to allow them to handle a boundary line agreement relating to real property

owned by the Trust. The trial court presumed that the Certification was prepared by

the same title company that drafted the boundary line agreement and not by Todd and

Tam.

20110095

‐ CA 8 terms of the Trust.” 4 TJ claimed that this newly discovered evidence warranted a new

trial because it proved that Father was not competent when he executed the Affidavit of

Stewardship.

¶18 In denying TJ’s motion, the trial court reasoned that although the evidence was

material and competent, it was a public record that TJ could have discovered before

trial if she had exercised reasonable diligence. The trial court also determined that even

if the Certification had been presented at the first trial, it was unlikely that the result

would have been different. First, the trial court explained that there was compelling

evidence of Father’s competence when he executed the Affidavit of Stewardship,

including the testimony of Banker and the fact that Father’s doctors allowed him to

make his own end

‐ of

‐ life decisions. Second, the court determined that the Affidavit of

Stewardship merely reiterated the intent contained in the Affidavit of Trust, signed by

Father before there was any question as to his competence, to forgive Todd of the

$250,000 in losses. TJ now appeals.

ISSUES AND STANDARDS OF REVIEW

¶19 First, TJ contends that the trial court erred by denying her motion for a new trial

based on newly discovered evidence. In denying a motion for a new trial, the trial court

has considerable discretion, and we will reverse its decision “only for a clear abuse” of

that discretion. See Olsen v. Olsen

, 2007 UT App 296, ¶ 9, 169 P.3d 765 (internal

quotation marks omitted).

¶20 Second, TJ argues that the trial court erred by denying her motion to impose

discovery sanctions on Todd and Tam. We review a trial court’s decision to deny

discovery sanctions for an abuse of discretion. See Bodell Constr. Co. v. Robbins

, 2009 UT

52, ¶ 16, 215 P.3d 933.20110095

‐ CA 9 ¶21 Third, TJ argues that the trial court erred in its interpretation and enforcement of

the Trust documents. A trial “court’s interpretation of a ‘trust instrument is a question

of law,’ which we review for correctness.” Lakeside Lumber Prods. v. Evans

, 2005 UT App

87, ¶ 8, 110 P.3d 154 (quoting Jeffs v. Stubbs

, 970 P.2d 1234, 1251 (Utah 1998)). Thus, the

trial court’s determination of whether the life insurance proceeds were part of the Trust

assets is an issue of law that we review for correctness. Cf. id. Likewise, the issue of

“whether a [document] is ambiguous is a question of law” that we review for

correctness. See Tangren Family Trust v. Tangren

, 2008 UT 20, ¶ 10, 182 P.3d 326.

However, if a trust document is ambiguous and the trial court admits extrinsic evidence

to interpret it, the trial court’s decision as to the intent of the trustor is a factual

determination that we review under a clearly erroneous standard. Cf. Daines v. Vincent

,

2008 UT 51, ¶ 25, 190 P.3d 1269 (noting that the admission of parol evidence in

interpreting a facially ambiguous contract presents a question of fact); Edwards v. Powder

Mountain Water & Sewer

, 2009 UT App 185, ¶ 13, 214 P.3d 120 (noting questions of fact

are reviewed under a clearly erroneous standard); see also Makoff v. Makoff

, 528 P.2d 797,

798 (Utah 1974) (“The general rules of construction of written instruments apply to the

construction of trust instruments

. . . .”); In re Hamilton

, 869 P.2d 971, 975 (Utah Ct. App.

1994) (“The factual issue of the decedent’s intent is one we review with deference to the

trial court’s findings, if adequate, and we reverse only upon a finding of clear error.”).

¶22 Fourth, TJ contends that the trial court erred in admitting Father’s statements

regarding the Trust documents because they were inadmissible hearsay. “In reviewing

the admissibility of hearsay, legal conclusions are reviewed for correctness, factual

determinations are reviewed for clear error, and the ultimate question of admissibility is

reviewed for abuse of discretion.” State v. C.D.L.

, 2011 UT App 55, ¶ 29, 250 P.3d 69,

cert. denied

, 255 P.3d 684 (Utah 2011).

¶23 Finally, TJ contends that the trial court erred in denying attorney fees to her

under Utah Code section 75

‐ 7

‐ 1004. See Utah Code Ann. § 75

‐ 7

‐ 1004 (Supp. 2012).

“[T]he appropriate standard for reviewing equitable awards of attorney fees is abuse of

discretion.” Fisher v. Fisher

, 2009 UT App 305, ¶ 8, 221 P.3d 845 (alteration in original)

(internal quotation marks omitted). “[W]e give no deference to the trial court’s

determination as to whether attorney fees were allowed under a statute.” Id. ¶ 8.20110095

‐ CA 10 ANALYSIS

I. New Trial, Rule 37 Sanctions, and Insurance Proceeds

A. New Trial

¶24 Rule 59 of the Utah Rules of Civil Procedure provides the circumstances under

which the trial court may grant a new trial or reopen the evidence at a bench trial based

on evidence discovered after the court’s initial ruling. See Utah R. Civ. P. 59(a). It

provides that a new trial may be granted if there is “[n]ewly discovered evidence,

material for the party making the application, which he could not, with reasonable

diligence, have discovered and produced at the trial.” See id. R. 59(a)(4). To satisfy this

rule, the moving party must prove that the evidence satisfies four requirements:

(1) “[I]t must be material, competent evidence which is in

fact newly discovered,” (2) “it must be such that it could not,

by due diligence, have been discovered and produced at

trial,” (3) “it must not be merely cumulative or incidental,

but must be of sufficient substance that there is a reasonable

likelihood that with it there would have been a different

result,” and (4) it “must relate to facts which were in

existence at the time of trial.”

See In re C.L.

, 2007 UT 51, ¶ 12, 166 P.3d 608 (alteration in original) (citation and

additional internal quotation marks omitted) (quoting In re J.P.

, 921 P.2d 1012, 1017

(Utah Ct. App. 1996)). “If the moving party fails to establish any one of these elements,

a new trial may not be granted.” Id. ¶ 13. Accordingly, because we determine that the

trial court did not exceed its broad discretion in determining that the Certification

would not be reasonably likely to affect the outcome of a new trial, we do not address

the remaining elements. See id. ; see also Olsen v. Olsen

, 2007 UT App 296, ¶ 9, 169 P.3d

765 (“Rulings on motions for a new trial are addressed to the sound discretion of the

trial court, and its decision will be reversed on appeal only for a clear abuse thereof.”

(internal quotation marks omitted)).

¶25 TJ contends that the trial court erred in determining that there was no reasonable

likelihood that there would be a different result, even if the Certification was admitted20110095

‐ CA 11 at a new trial. In making this argument, TJ relies heavily on the trial court’s statement

that the Affidavit of Stewardship “seal[ed] the deal” that Todd would not be

responsible for the $250,000. However, the trial court determined that it would have

upheld the validity of the Affidavit of Stewardship even if the Certification had been

presented at the first trial. The court explained that the Affidavit of Stewardship “was

in addition to [the Affidavit of Trust,] which had been written three years before,” and

that the Affidavit of Stewardship was meant to “clarify any ambiguities” in the

Affidavit of Loans and the Affidavit of Trust. In essence, the trial court ruled that the

Certification did not affect its ruling that the Affidavit of Trust, drafted before Father’s

competence was at issue, relieved Todd of any obligation to repay the $250,000.

¶26 The trial court’s ruling that there is no reasonable likelihood that the result at a

new trial would be different is based on its interpretation of the Affidavit of Trust.

Thus, we first review the trial court’s conclusion that the Affidavit of Trust is

ambiguous and its use of extrinsic evidence to resolve any ambiguity. We then analyze

whether the admission of the Certification would affect the outcome of the case based

on the correct interpretation of the Affidavit of Trust.

1. The Trial Court Correctly Determined that the Affidavit of Trust Is

Ambiguous and Properly Considered Extrinsic Evidence

¶27 “The primary object of a court, in construing the provisions of a trust, is to carry

out the intent of the trustor or trustors.” In re Gerber

, 652 P.2d 937, 939 (Utah 1982). We

must look first to the language of the trust instrument to determine the settlor’s intent,

and we may only look beyond that language if the trust is ambiguous. See Perrenoud v.

Harman

, 2000 UT App 241, ¶ 13, 8 P.3d 293 (citing Makoff v. Makoff

, 528 P.2d 797, 798

(Utah 1974)); see also Jeffs v. Stubbs

, 970 P.2d 1234, 1251 (Utah 1998) (“[I]n determining

whether a trust is charitable, a court must look to the language of the trust instrument

and may not look beyond it unless the instrument’s language does not resolve the

issue.”). When a court determines that a trust is ambiguous, it may consider extrinsic

evidence in light of the trust language to determine the settlor’s intent. See Makoff

, 528

P.2d at 798 (“[I]n ascertaining the intention of the settlor we may consider the entire

instrument aided by the surrounding circumstances existing at the time of creation of

the trust.”); see also 90 C.J.S. Trusts § 228 (2012) (“Parol or extrinsic evidence may be

admitted to aid in construing a trust instrument only if the instrument is ambiguous or

uncertain, and only to explain, and not to contradict, it.”). In contrast, “[i]f the language20110095

‐ CA 12 within the four corners of the [trust] is unambiguous, the parties’ intentions are

determined from the plain meaning of the [trust] language, and the [trust] may be

interpreted as a matter of law.” See McNeil Eng’g & Land Surveying, LLC v. Bennett

, 2011

UT App 423, ¶ 8, 268 P.3d 854 (internal quotation marks omitted).

¶28 To determine whether a trust instrument is ambiguous, we apply the same

standards as with other written instruments. See Makoff

, 528 P.2d at 798. Accordingly,

we “consider each [trust] provision

. . . in relation to all of the others, with a view

toward giving effect to all and ignoring none.” See McNeil Eng’g

, 2011 UT App 423, ¶ 8

(omission in original) (internal quotation marks omitted). “A [trust] term or provision

is ambiguous if it is capable of more than one reasonable interpretation because of

uncertain meanings of terms, missing terms, or other facial deficiencies.” Id. (internal

quotation marks omitted).

¶29 The Affidavit of Trust states, in relevant part:

I [Father], hereby certify that my son [Todd], was intrusted

with over $250,000[] from my Trust. In which he lost this

money and has not replaced or tr[ied] to make good on this

said money.

To which I feel as though he should have t[aken]

responsibility, for this and has yet to do so. But the girls [TJ]

and[ Tam] have decided that he as in [Todd] would not be

able to pay this back. But should admit his wrong doing.

[Todd] has also received insurance monies in the amount of

$50,000[] which were to be divided with my two daughters

[TJ] and [Tam]. To date he has not distributed these

amounts shall be treated as loans in favor of my estate and

shall not accrue interest [sic].

My daughter [Tam], has also borrowed $82,000 from my

Trust.

This amount shall also be treated as a loan in favor of my

Trust Estate and shall also not accrue interest.20110095

‐ CA 13 She my daughter has been paying back monthly payments

as a show[ing] of good faith.

At the time of my death what is left owing on [Tam’s] loan

she will not have to pay this amount owing back. Because

half of what is owed will be given to my daughter [TJ] from

the trust and the monies owing from the Insu[r]ance monies

will be divided two ways, if my son [Todd] hasn’t made

good on the insurance monies he was entrusted to him to

handle. Then the insurance monies should be divided

between the two daughters [TJ] and [Tam] from my Trust

Estate and then the amounts left shall be divided between

the three children.

¶30 The trial court carefully reviewed this document, stating that the

only reference to the $250,000[] is contained within the first

five sentences of the document. The remainder of the

document

. . . never refers to the $250,000[]. [It] also never

calls the $250,000[] a “loan.” Considering the document as a

whole, the Court cannot ascertain [Father]’s intent with

respect to the $250,000[].

The trial court noted that the Affidavit of Trust indicates that the $50,000 in “insurance

monies should be held against Todd and taken out of his share but does not include the

$250,000[] obligation in this language.” Thus, the court concluded that the plain

language could be interpreted either as relieving Todd of any obligation to repay the

$250,000 or as requiring that the $250,000 be deducted from his share of the Trust assets.

Due to these two reasonable interpretations of the Affidavit of Trust, the trial court

concluded that it was ambiguous and looked to extrinsic evidence to ascertain Father’s

intent.

¶31 TJ disagrees with the trial court’s assessment that the Affidavit of Trust is

ambiguous and argues instead that it should not have considered extrinsic evidence.

She claims that the statement “these amounts shall be treated as loans” must refer to

both the $250,000 and the $50,000 because the “$50,000[] insurance monies is one20110095

‐ CA 14 amount—singular. Indeed [the immediately preceding sentence] expressly confirms

that the insurance monies is an ‘amount.’” To support this position, TJ notes that the

document later states that the $50,000 “should be divided between the two daughters”

and that if “these amounts” referred only to the insurance monies, the subsequent

statement would be repetitive. TJ asserts that “[t]aken together, the only conclusion is

that ‘these amounts’

. . . refer[s] to both the $250,000[] and the $50,000[].”

¶32 While TJ’s interpretation is not unreasonable, we conclude that the trial court

correctly held that the Affidavit of Trust is ambiguous. In the beginning of the

document, Father never expressly states that the $250,000 is to be treated as a loan,

instead indicating that the sisters decided that Todd cannot repay the money, “[b]ut

[that Todd] should admit his wrong doing.” Contrary to TJ’s assertions, the rest of the

document does not eliminate this ambiguity. Nor do we agree that the use of the plural

in the directive that “ these amounts shall be treated as loans in favor of my estate and

shall not accrue interest,” must refer to both the $250,000 in portfolio losses and the

$50,000 of life insurance proceeds because it uses the plural “amounts.” (Emphasis

added.) The Affidavit of Trust appears to use the singular and plural interchangeably.

While TJ is correct that the prior sentence refers to the $50,000 as an “amount,” it also

refers to it as “insurance monies” and indicates that they “were” to be shared with the

sisters. Furthermore, the critical sentence is obviously incomplete, stating, “To date he

has not distributed these amounts shall be treated as loans in favor of my estate

. . . .” A

word or phrase is missing either after “distributed” or after “these amounts.” A

comparison of the Affidavit of Loans and the Affidavit of Trust suggests that the

sentence including the reference to “these amounts” may have been imported from the

prior document, with less than careful editing. Father might have intended the

Affidavit to state, “To date he has not distributed [the insurance monies and] these

amounts shall be treated as loans in favor of my estate and shall not accrue interest.”

And there is nothing in the document suggesting that Todd was expected to share the

$250,000 with the sisters, but it expressly states that the insurance monies “were to be

divided with [Father’s] two daughters.” Thus, the statement that “[t]o date he has not

distributed these amounts” logically could refer only to the money Todd was expected

to distribute, the insurance proceeds. Finally, in the last few sentences of the document,

Father refers to the loan from the Trust to Tam and the “moneys owing” from Todd due

to the insurance proceeds, and directs how any unpaid balance should be repaid upon

his death. Noticeably absent from those instructions is any mention of the $250,000 in

investment losses. This omission could reasonably be interpreted to support the20110095

‐ CA 15 argument that Father relieved Todd of any obligation to repay the $250,000 in the first

part of the document. Thus, the trial court correctly determined that the Affidavit of

Trust is ambiguous because it can be interpreted as either relieving Todd of any

obligation to repay the $250,000, or as treating the $250,000 as a loan from the estate that

must be repaid from Todd’s share of the Trust assets.

¶33 We now examine whether the trial court properly resolved that ambiguity based

on the extrinsic evidence of Father’s intent. Cf. Makoff v. Makoff

, 528 P.2d 797, 798 (Utah

1974). “It is the province of the trier of fact to assess the credibility of witnesses, and we

will not second

‐ guess the trial court where there is a reasonable basis to support its

findings.” Salt Lake City v. Hughes

, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (internal

quotation marks omitted). That evidence included Friend’s testimony that while she

was assisting Father with the Affidavit of Trust, Father told her that he and Todd both

made a mistake and that “the loss of the [$250,000]

. . . was forgiven.” The trial court

found that Friend “was a credible and impartial witness and relied heavily on her

testimony.” The court was also persuaded by Tam, who testified that Father told her

that he and Todd invested the money together and that the stock trading was a joint

effort. Based on this testimony, the court concluded that Father intended to forgive

Todd “of any obligation to repay the $250,000[]” in the Affidavit of Trust. TJ has not

challenged any of these findings on appeal. Accordingly, we affirm the trial court’s

interpretation of the Affidavit of Trust as relieving Todd of any obligation to repay the

$250,000 of investment losses.

2. There Is Not a Reasonable Likelihood that Admission of the Certification

Would Affect the Outcome of the Case

¶34 We next review the trial court’s determination that the Certification that

indicated Father was incompetent would not affect the outcome of the case in a new

trial. Because the Affidavit of Trust forgave Todd of any responsibility with respect to

the $250,000, the trial court was convinced that the Affidavit of Stewardship would not

affect its analysis on that issue. Because we have affirmed the trial court’s conclusion

that Father intended to relieve Todd of any obligation to repay the $250,000 when he

executed the Affidavit of Trust, we agree that even if the Certification rendered the

Affidavit of Stewardship invalid, the result would not change.5. Because amendments to the Utah Rules of Civil Procedure effective November 1,

2011, made significant changes to the discovery rules, we cite the preamendment

version of rule 37. See Utah R. Civ. P. 1 advisory committee note (“Due to the

significant changes in the discovery rules, the Supreme Court order adopting the 2011

amendments makes them effective only as to cases filed on or after the effective date

. . . unless otherwise agreed to by the parties or ordered by the court.”).

20110095

‐ CA 16 ¶35 Nevertheless, TJ argues that the existence of the Certification would call into

question Todd’s and Tam’s veracity generally, thereby affecting the outcome of the

litigation. As previously discussed, however, the trial court relied primarily on the

testimony from Friend in resolving the ambiguity in the Affidavit of Trust. Because

there is no evidence that Friend was present when Father executed the Certification

three years later, the Certification does not call into question Friend’s credibility as to

Father’s intention when he executed the Affidavit of Trust. Furthermore, TJ does not

challenge the trial court’s finding that while they were drafting the Affidavit of Trust,

Father told Friend he wanted to forgive the $250,000. Under these circumstances, we

are not convinced that the trial court exceeded its discretion in determining that

admission of the Certification would not have changed the outcome at trial.

B. Discovery Sanctions

¶36 TJ contends that the trial court erred in denying her motion for discovery

sanctions under rule 37 of the Utah Rules of Civil Procedure. 5 Rule 37 of the Utah Rules

of Civil Procedure provides that a trial court may impose sanctions on a party for its

failure to make required disclosures. See Utah R. Civ. P. 37(f) (detailing the

consequences of failing to make required disclosures, including that the trial court may

impose sanctions under subsection (b)(2)). However, “[b]efore a trial court can impose

discovery sanctions under rule 37, the court must find on the part of the noncomplying

party willfulness, bad faith, or fault, or persistent dilatory tactics frustrating the judicial

process.” Morton v. Continental Baking Co.

, 938 P.2d 271, 274 (Utah 1997) (citations and

internal quotation marks omitted). We review a trial court’s denial of “discovery

sanctions under an abuse of discretion standard.” See Bodell Constr. Co. v. Robbins

, 2009

UT 52, ¶ 16, 215 P.3d 933; see also Morton

, 938 P.2d at 974 (“Because trial courts must

deal first hand with the parties and the discovery process, they are given broad

discretion regarding the imposition of discovery sanctions.” (internal quotation marks6. TJ also argues that Todd and Tam failed to disclose a key witness. However, TJ first

raised this issue in a reply memorandum to the trial court. “Where a party ‘first raise[s

an] issue in [her] reply memorandum, it [is] not properly before the trial court and we

will not consider it for the first time on appeal.’” Stevens v. LaVerkin City

, 2008 UT App

129, ¶ 31, 183 P.3d 1059 (alterations in original) (quoting State v. Phathammavong

, 860

P.2d 1001, 1004 (Utah Ct. App. 1993)).

20110095

‐ CA 17 omitted)). “In applying the abuse of discretion standard to the district court’s” denial of

discovery sanctions,

we give the district court “a great deal of latitude in

determining the most fair and efficient manner to conduct

court business” because the district court judge “is in the

best position to evaluate the status of his [or her] cases, as

well as the attitudes, motives, and credibility of the parties.”

See Bodell Constr.

, 2009 UT 52, ¶ 35 (alteration in original) (quoting Morton

, 938 P.2d at

275).

¶37 Here, TJ challenges the trial court’s ruling denying her motion to sanction Todd

and Tam for their failure to produce the Certification in response to Request for

Production No. 7 (the Request). 6 The Request states, “Please provide any and all

documents, including development plans or the like, involving any real properties of

the Estate.” Although the Trust owned four separate properties at the time of the

Request, Todd and Tam provided TJ only with documentation related to the Wilcock

Vistas property. TJ never objected to this response. For the first time, with her motion

for a new trial, TJ argued that Todd and Tam’s response to the Request was deficient

and that discovery sanctions were warranted because the Certification had not been

produced. The trial court disagreed, determining that the parties were focused on the

development of Wilcock Vistas at the time the Request was sent and that they were not

concerned about the other properties at that time. On appeal, TJ now contends that the

plain language of the Request encompasses the Certification, which was a document

related to the Trust’s Farm Property, and that therefore, the trial court erred in

interpreting the Request more narrowly.7. Todd and Tam argue that the trial court could not impose sanctions because TJ never

moved to compel the production of documents related to other Trust properties.

However, a trial court may impose discovery sanctions in some circumstances, even in

the absence of an objection or motion to compel. See Utah R. Civ. P. 37(b)(2) (providing

that a trial court may impose discovery sanctions for a party’s “fail[ure] to obey an

order to provide or permit discovery”); id. R. 37(f) (“If a party fails to disclose a

. . . document or other material

. . . the court on motion may take any action authorized

by Subdivision (b)(2).”); see also Rukavina v. Sprague

, 2007 UT App 331, ¶ 8, 170 P.3d

1138 (deciding that the trial court could impose discovery sanctions, even in the absence

of a motion to compel, where the party had failed to comply with the court’s discovery

orders); Stevenett v. Wal

‐ Mart Stores, Inc.

, 1999 UT App 80, ¶¶ 23

‐ 24, 977 P.2d 508

(holding that the trial court did not err in sanctioning a party where the party failed to

supplement her answers to discovery requests in violation of a scheduling order and

the trial court found fault in accordance with a prior version of rule 37).

8. This hearing also addressed the motion for a new trial.

9. The trial court determined that this speculative testimony would not be helpful to its

determination, but allowed TJ to make a proffer as to Banker’s testimony.

20110095

‐ CA 18 ¶38 While we agree that the language of the Request is broad enough to include the

Certification, we cannot conclude that the trial court exceeded its discretion in denying

sanctions. 7 The trial court held a hearing on the failure to produce the Certification and

carefully considered the concerns of each party. 8 Although the trial court did not take

evidence at this hearing, neither party sought to introduce any evidence concerning

Todd and Tam’s reasons for not producing the Certification. Instead, TJ wanted to call

Banker to establish that he would not have notarized the Affidavit of Stewardship if he

had known about the Certification. 9 Thus, the trial court relied on its own familiarity

with the trial court proceedings to reject TJ’s motion for sanctions. We defer to the trial

court’s assessment of the focus of the litigation when Tam and Todd produced only the

Wilcock Vistas documents because it observed the proceedings firsthand and was in the

best position to evaluate the attitudes and motivations of the parties when the Request

was sent. See, e.g.

, Bodell Constr.

, 2009 UT 52, ¶ 35. Thus, although the language of the

Request appears to encompass documentation relating to all of the properties, we

cannot say that the trial court abused its discretion when it determined that the focus of10. Although we defer to the trial court’s judgment on this issue, from our less

informed position with respect to the trial court proceeding, Todd and Tam’s failure to

produce the Certification is at least suspicious. Admittedly, TJ served no discovery

specifically directed at obtaining information relevant to Father’s competence when he

executed the Affidavit of Stewardship. Nevertheless, TJ had raised that issue, and the

explanation that Todd and Tam forgot about a document expressly proclaiming

Father’s incompetence, executed by Tam and Todd only a day before Father signed the

Affidavit of Stewardship, seems open to question.

11. Although a trust may also be created by “exercise of a power of appointment in

favor of a trustee,” this method of trust creation is not at issue in this case. See Utah

Code Ann. § 75

‐ 7

‐ 401 (Supp. 2012).

20110095

‐ CA 19 the litigation had evolved such that only documentation related to Wilcock Vistas was

relevant. 10

C. The Insurance Proceeds

¶39 TJ also contends that the trial court erroneously concluded that the $50,000 in life

insurance proceeds was not part of the Trust estate. Specifically, TJ challenges the trial

court’s determination that “[Father] was not in any position to take control of, make

allowances or decisions or otherwise dictate the distribution of the life insurance

monies, as they were never part of the Trust estate.” Instead, TJ argues that these

proceeds were a trust asset and should have been treated as a loan against Todd’s share

of the estate.

¶40 In reviewing TJ’s claim, we note that there is no dispute regarding the

underlying facts relied on by the trial court. Accordingly, whether these assets were

part of the trust estate is an issue of law that we review for correctness. See Davis v.

Young

, 2008 UT App 246, ¶¶ 8

‐ 9, 190 P.3d 23. In order for a trust to be created, either

property must be transferred “to another person as trustee during the settlor’s lifetime”

or the owner of the property must declare that he is holding the identified property as

trustee. 11 See Utah Code Ann. § 75

‐ 7

‐ 401(1)(a)

‐ (b) (Supp. 2012); see also In re West

, 948

P.2d 351, 353 (Utah 1997) (noting, in a decision prior to Utah’s adoption of the Uniform

Trust Code, that to create a trust the settlor “‘must have an intent to create a presently20110095

‐ CA 20 enforceable trust,

. . . the trust property must be clearly specified and set aside,

. . . and

the essential terms of the trust must be clear enough for the court to enforce the

equitable duties that are the sine qua non of a trust relationship’” (omissions in original)

(emphasis omitted) (quoting Sundquist v. Sundquist

, 639 P.2d 181, 183

‐ 84 (Utah 1981))).

Once a trust is created, the trustee “may exercise

. . . powers conferred by the terms of

the trust.” Utah Code Ann. § 75

‐ 7

‐ 813(1). The Trust in this case confers upon the

trustee

the power and authority to manage and control the Trust

[e]state in such manner as the Trustee may deem advisable;

and, he shall have, enjoy, and exercise all powers and rights

over and concerning the Trust [e]state and the proceeds

thereof as fully and amply as though the Trustee were the

absolute owner of the same

. . . including by way of

illustration and not of limitation the

. . . power[]

. . . [t]o

convey, dispose, and sell any trust property

. . . .

Thus, Father, as the trustee here, would have power to direct the distribution of the life

insurance proceeds if they were part of the Trust estate or “proceeds thereof.”

¶41 We agree with the trial court that the insurance proceeds were never made part

of the Trust. Grandfather was the owner of the insurance policy, and the sole

beneficiary was Uncle. Grandfather authorized Todd to surrender the policy for its

cash value and to invest those proceeds in the stock market. Upon surrender, the

insurance company delivered the proceeds to Todd, and he testified that he paid the

capital gains taxes incurred as a result. Indeed, TJ’s trial counsel struggled to explain

how the cash obtained from Grandfather’s life insurance policy became part of the

Trust. There was no evidence that either Mother or Father, the original trustors, had an

interest in the policy, and TJ’s counsel eventually conceded that Father was not an heir

of his father

‐ in

‐ law’s estate. Additionally, even if the money was a loan to Todd, it was

a loan from Grandfather, not the Trust. On appeal, TJ again fails to explain how the life

insurance proceeds became part of Father’s Trust. Accordingly, Father’s position as

trustee did not give him the authority to direct the distribution of the insurance

proceeds.12. Furthermore, this argument is not consistent with the plain language of the

Affidavit of Trust, which treats the cash value of Grandfather’s insurance policy as a

“loan” from the Trust to Todd.

13. The Utah Rules of Evidence were amended effective December 1, 2011. See generally

Utah R. Evid. 803, 2011 advisory committee note. However, these changes were

intended to be “stylistic only.” See id. Accordingly, we cite the current version of the

rules for the convenience of the reader.

20110095

‐ CA 21 ¶42 In the alternative, TJ contends that Father was authorized to direct the

distribution of Trust assets disproportionately as “an adjustment” or “offset” to Todd’s

receipt of the insurance proceeds outside of the Trust. TJ argues that “such

determinations are commonplace in modern estate planning. Grantors and trustees

regularly motivate behavior by indicating certain actions as conditions precedent to

actual inheritance.” However, TJ offers no citations to support these assertions. See

Utah R. App. P. 24(a)(9) (“The argument shall contain the contentions and reasons of

the appellant with respect to the issues presented, including the grounds for reviewing

any issue not preserved in the trial court, with citations to the authorities, statutes, and

parts of the record relied on.”). This court is not “a depository in which the appealing

party may dump the burden of argument and research.” See State v. Thomas

, 961 P.2d

299, 305 (Utah 1998) (internal quotation marks omitted). When an argument is

inadequately briefed, we may refuse to address it. See id. at 304. Because TJ has placed

the burden of research and analysis squarely on this court, we decline to address this

argument. 12

II. Admissibility of Father’s Statements Under Rules 803(3) and 601(c) of the Utah Rules

of Evidence

A. Affidavit of Stewardship

¶43 TJ contends that Banker’s testimony concerning Father’s statements when he

executed the Affidavit of Stewardship were inadmissible under rule 803(3) of the Utah

Rules of Evidence because they were offered for the truth of the matter asserted, not to

prove Father’s state of mind. 13 See Utah R. Evid. 803 (providing that a “statement of the20110095

‐ CA 22 declarant’s then

‐ existing state of mind” is “not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness”). She further claims that

similar statements made by Todd do not fall within the scope of rule 601(c) because the

dispute between TJ and her siblings is not an action against the declarant’s estate. See

id. R. 601(c) (“In an action against the declarant’s estate, the declarant’s statement is

admissible notwithstanding the hearsay rule if it was made at a time when the matter

had been recently perceived by the declarant and while the declarant’s recollection was

clear unless it was made under circumstances indicating its lack of trustworthiness.”).

However, even if we assume that TJ is correct, she can show no prejudice. See State v.

Clopten

, 2009 UT 84, ¶ 39, 223 P.3d 1103 (explaining that “reversal is not warranted”

where the trial court’s error is harmless).

¶44 We have affirmed the trial court’s determination that the Affidavit of

Stewardship was merely cumulative of the Affidavit of Trust’s directive that Todd be

relieved of any obligation to repay the $250,000 lost in the stock market. See supra

¶¶ 34

‐ 35. Consequently, we also upheld the trial court’s assessment that, even if the

Certification had invalidated the Affidavit of Stewardship, it would not change the

outcome of the litigation. See supra ¶¶ 34

‐ 35. Likewise, any presumed error in

admitting Banker’s and Todd’s testimony about statements Father made when he

executed the Affidavit of Stewardship is harmless. “Harmless error is defined

. . . as an

error that is sufficiently inconsequential that we conclude there is no reasonable

likelihood that the error affected the outcome of the proceedings.” Covey v. Covey

, 2003

UT App 380, ¶ 21, 80 P.3d 553 (omission in original) (internal quotation marks omitted).

For the same reasons stated in our analysis of the impact of the Certification in a

hypothetical new trial, the exclusion of the challenged testimony would not have

affected the trial court’s decision. If, without that testimony, the trial court had

disregarded the Affidavit of Stewardship entirely, Father’s decision to relieve Todd of

any obligation with respect to the portfolio losses is still reflected in the Affidavit of

Trust. Because TJ can show no prejudice, we do not further consider her challenge to

the introduction of Father’s statements regarding the Affidavit of Stewardship.

B. Affidavit of Trust

¶45 TJ further argues that the trial court erred by admitting testimony about Father’s

statements concerning the Affidavit of Trust under rule 601(c). In particular, TJ

challenges Friend’s testimony about Father’s instructions while they were drafting the14. Although the trial court also relied on the testimony of Tam, on appeal TJ does not

challenge any of her testimony relating Father’s statements.

15. The statute provides,

(1) In a judicial proceeding involving the administration of a

trust, the court may, as justice and equity may require,

award costs and expenses, including reasonable attorney’s

fees, to any party, to be paid by another party or from the

trust that is the subject of the controversy.

(2) If a trustee defends or prosecutes any proceeding in good

faith, whether successful or not, the trustee is entitled to

receive from the trust the necessary expenses and

disbursements, including reasonable attorney’s fees,

incurred.

See Utah Code Ann. § 75

‐ 7

‐ 1004 (Supp. 2012).

20110095

‐ CA 23 document. 14 However, TJ fails to point us to a place in the record where she preserved

this issue for appellate review. See Utah R. App. P. 24(a)(5)(A) (requiring that

appellants provide “citation to the record showing that the issue was preserved in the

trial court”). Furthermore, our review of Friend’s direct testimony during which she

reported Father’s statements does not reveal a single objection by TJ. Although TJ did

object to a question inquiring about Father’s intent during Todd and Tam’s redirect

examination of Friend, that objection was sustained by the trial court. Accordingly, TJ

failed to preserve this issue for appellate review and we do not consider it. See State v.

Chavez

‐ Espinoza

, 2008 UT App 191, ¶¶ 7, 9, 186 P.3d 1023 (“An issue is properly

preserved in the trial court where the record shows that (1) the issue is raised in a

timely fashion; (2) the issue is specifically raised; and (3) the issue is supported by

evidence or relevant legal authority.” (internal quotation marks omitted)).

III. Attorney Fees

¶46 Finally, TJ argues that the trial court failed to award her attorney fees under Utah

Code section 75

‐ 7

‐ 1004(1), 15 which allows the trial court the discretion to award attorney16. TJ argues for the first time in her appellate reply brief that the trial court erred in not

awarding her fees under subsection 75

‐ 7

‐ 1004(2). “However, we will not consider

matters raised for the first time in the reply brief.” Coleman ex rel. Schefski v. Stevens

,

2000 UT 98, ¶ 9, 17 P.3d 1122. We also do not consider Todd and Tam’s claim that the

trial court erred by not awarding them attorney fees because they failed to file a cross

‐ appeal. If litigants “wish to attack a judgment of a lower court for the purpose of

enlarging their own rights or lessening the rights of their opponent,” they must file a

cross

‐ appeal. State v. South

, 924 P.2d 354, 355 (Utah 1996).

20110095

‐ CA 24 fees “[i]n a judicial proceeding involving the administration of a trust.” 16 See Utah Code

Ann. § 75

‐ 7

‐ 1004(1) (Supp. 2012).

¶47 When a trial court may, but is not required, to award attorney fees, “it must base

its decision on a number of factors.” See Neff v. Neff

, 2011 UT 6, ¶ 70, 247 P.3d 380.

“These factors include the language of the contract or statute that forms the basis for the

attorney fees award, the number of claims brought by the parties, the importance of

each of the claims relative to the entire litigation, and the amounts awarded on each

claim.” Id. In considering these factors, trial courts have “flexibility to handle

circumstances where both, or neither, parties may be considered to have prevailed.” See

id. (emphasis and internal quotation marks omitted). “Accordingly, it is possible that,

in litigation where both parties obtain mixed results, neither party should be deemed to

have prevailed for purposes of awarding attorney fees.” Id. “The hallmark for

determining which party has prevailed is not whether one party has recovered money

in an absolute sense, but whether the trial court’s decision about who prevailed was

based on an approach that was flexible and reasoned.” Id.

¶48 Here, TJ argues that the “reasons cited by the trial court for its determination”

not to award discretionary fees “are severely lacking.” Primarily, TJ complains about

how the trial court characterized each side’s conduct during the course of trial.

According to TJ, Todd’s and Tam’s behavior was considerably worse than hers and

weighed in favor of awarding TJ her attorney fees. However, it is not our role to

second

‐ guess the trial judge’s assessment of the relative fault of the litigants. See id.

¶ 71. Instead, we review whether the trial court considered the proper factors and used

“common sense” in making its decision. See id.20110095

‐ CA 25 ¶49 Here, the court noted that “Todd and Tam shifted the estate’s cash into a new

checking account,” which precluded TJ from participating in the Trust’s accounting

procedures and “created a lack of transparency that cost both sides countless attorney’s

fees.” The court also found that “Todd stole money from the estate’s checking

account,” activity that was aided by excluding TJ from oversight of the Trust’s bank

account. Additionally, the court considered TJ’s concerns that Todd and Tam had lied

about the Certification and their failure to account properly for rental property and

other income.

¶50 In comparison, the trial court found that “TJ stubbornly fought a losing legal

battle regarding the $50,000 from their grandfather’s insurance money” and that TJ tried

to have Todd repay the $250,000 even though her position was “not substantiated by

the evidence.” It further questioned TJ’s attempt to charge Todd rent for operating a

dog kennel on estate property, even though Father had allowed Todd to do so without

imposing any rental obligation before his death. The trial court also noted Todd and

Tam’s contention that TJ “grossly exaggerated” rental income earned from Trust

properties.

¶51 After considering all of these factors, the trial court determined that “all three

siblings [are] equally responsible for the mayhem they have caused and the attorney’s

fees they have incurred. The court finds that justice and equity do not require an award

of attorney’s fees to any of the siblings as against the opposing siblings.” Based on the

trial court’s careful consideration of each party’s fault in prolonging the litigation, we

cannot conclude that the trial court exceeded its discretion in determining that equity

and justice did not require an award of attorney fees to any of the parties. See Utah

Code Ann. § 75

‐ 7

‐ 1004 (Supp. 2012).

CONCLUSION

¶52 The trial court did not err in denying TJ’s motion for a new trial because the

admission of the Certification would not have a reasonable likelihood of resulting in a

different result upon a new trial. Moreover, the cash value of Grandfather’s insurance

policy was never part of the Trust estate, and TJ has not adequately advanced any

alternative ground for Father’s authority to treat it as a loan from the Trust to Todd.20110095

‐ CA 26 Any assumed error in admitting Father’s statements about the Affidavit of Stewardship

were harmless, and TJ did not object to Friend’s testimony regarding Father’s

statements about the Affidavit of Trust. We also affirm the trial court’s decision not to

award attorney fees to any of the parties as justice and equity may require because it

acted within its discretion after carefully considering the relevant factors. Finally, the

trial court did not exceed its broad discretion in denying TJ’s motion for discovery

sanctions against Todd and Tam.

¶53 Affirmed.

____________________________________ Carolyn B. McHugh,

Presiding Judge

‐‐‐‐‐

¶54 WE CONCUR:

____________________________________ J. Frederic Voros Jr.,

Associate Presiding Judge

____________________________________ Michele M. Christiansen, Judge