Cattani v. Drake

2018 UT App 77

THE UTAH COURT OF APPEALS

KARA CATTANI, AS TRUSTEE OF THE OATES FAMILY TRUST,
Appellant,
v.
LYLE DRAKE, DURHAM JONES & PINEGAR PC, DANIEL MAYNARD,
AND MAYNARD CRONIN ERICKSON CURRAN & SPARKS PLC,
Appellees.

Opinion
No. 20150673-CA
Filed April 26, 2018

Fifth District Court, St. George Department
The Honorable Pamela G. Heffernan
No. 110500394

Grant M. Sumsion, Jason S. Crandall, Daniel L.
Steele, and John J. Egbert, Attorneys for Appellant
Matthew L. Lalli and Jeremy J. Stewart, Attorneys for
Appellees Lyle Drake and Durham Jones
& Pinegar PC
John A. Snow and Alex B. Leeman, Attorneys for
Appellees Daniel Maynard and Maynard Cronin
Erickson Curran & Sparks PLC

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and JILL M. POHLMAN
concurred.

MORTENSEN, Judge:

¶1 A dispute amongst beneficiaries of a trust has resulted in
two lawsuits, the second of which comes before us on appeal.
Kara Cattani, as the current successor trustee of the Oates Family
Trust (the Trust), appeals the district court’s dismissal of some of
the Trust’s claims and the court’s grant of summary judgment in
favor of defendants Lyle Drake, Durham Jones & Pinegar PC,
Cattani v. Drake

Daniel Maynard, and Maynard Cronin Erickson Curran
& Sparks PLC. We affirm as to Maynard and Maynard Cronin
Erickson Curran & Sparks, but we reverse in part on claims
against Drake and Durham Jones & Pinegar and remand.

BACKGROUND

¶2 In 1971, Ernest and Florence Oates created the Trust to
help ensure they were properly cared for during their lifetimes. 1
Upon the death of either settlor, the Trust was to become
irrevocable. Ernest 2 died in 1996. The Oateses named their four
children—Ernest Donald Oates (Oates), Caroline Woolley, Irene
Cattani, and Diane Nolen—remainder beneficiaries of the Trust.
Oates and Woolley died in a car accident, and Irene Cattani later
suffered an unrelated injury that left her disabled and unable to
manage her affairs. Irene Cattani has five children who are also

1. While the Trust instrument provides that it should be
governed by California law, neither party argues that California
law should be applied rather than Utah law. In such a situation,
we assume that another state’s law is the same as ours, unless a
party points to the contrary. Therefore, we proceed under the
assumption that Utah law applies in this case. See Dickson v.
Mullings, 241 P. 840, 842 (Utah 1925) (“It also is well settled in
this jurisdiction that, in the absence of proof, it will be presumed
that the law of another state is the same as the law of the forum
and the court will administer and apply the law of the
jurisdiction until the law of the situs is shown. Thus, in the
absence of proof, it will be presumed that the law of [the other
state] on the subject is the same as the law of Utah.” (citations
omitted)).

2. “As is our practice in cases where [multiple] parties share a
last name, we refer to the parties by their first name with no
disrespect intended by the apparent informality.” Smith v. Smith,
2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

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Cattani v. Drake

involved in this case: Kara, Kent, Keith, Kathleen, and Kyle (the
Cattani children). Nolen, the only remaining child capable of
doing so, served as co-trustee with Florence following Ernest’s,
Oates’s, and Woolley’s deaths. 3 Nolen became the sole trustee in
2005 when Florence died.

¶3 Ernest owned a ten-percent interest in a Colorado limited
partnership prior to his death. The Cattani children contend that
Ernest had informed them that the partnership interest would
become Trust property upon his death. But in 1999, after Ernest’s
death, Florence signed a document purporting to transfer the
partnership interest to Nolen as a joint tenant with Florence.
When the Cattani children learned of the transfer after Florence’s
death, they were concerned. In 2006, Kara requested an
explanation of the transfer from Nolen; Kent wrote to Lyle
Drake, an attorney representing Nolen as trustee, requesting
copies of all trust documents.

¶4 Drake had been retained by Florence in 2001 to assist with
trust and estate matters. At that time, Florence requested that
Drake prepare a document that would “transfer the Partnership
Interest to Florence and Nolen as joint tenants,” “apparently
forgetting about the 1999 Assignment.” Drake was convinced
that Florence had not been unduly influenced in her decision to
make the transfer and prepared the document. Florence
executed the assignment, although, as Drake explained,
ultimately it “was inoperative and redundant due to Florence’s
prior execution of the 1999 Assignment” to Nolen as joint
tenants.

¶5 Following Kara and Kent’s requests for information in
2006, Drake advised Nolen that she had a duty to provide a trust
accounting as of the date of Florence’s death, but not for “the
period prior to Florence’s death.” Drake then sent a letter to all

3. Following Ernest’s death, Oates acted as Florence’s co-trustee
for a time.

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the beneficiaries of the Trust and Florence’s estate—including
Nolen and the Cattani children—taking the position that any
“request of past accountings is silly.”

¶6 During this same time, Nolen retained an attorney, Daniel
Maynard, to represent her personally. Maynard’s initial focus
was on the issue of ownership of the partnership interest; he did
not advise Nolen regarding her duties as trustee of the Trust.
Because of “stress she was experiencing” in her role as trustee,
Maynard advised her to resign, but Nolen declined this advice.
Nolen used the Trust to pay for her personal legal fees.

¶7 In 2006, Irene and the Cattani children sued Nolen and
Drake (the 2006 case). 4 They sought to have Nolen removed as
trustee, to obtain an accounting, and to have the partnership
interest transferred to the Trust. They also asserted claims
against Drake for legal malpractice, breach of fiduciary duty,
and aiding and abetting Nolen in her breach of fiduciary duty.
The district court ordered the accounting; replaced Nolen as
trustee with a third-party successor trustee, Stagg Eldercare
Services (Stagg); and found that Nolen “had breached her
fiduciary duty to provide an accounting of the Trust for the
period prior to Florence’s death” when Nolen had been co-
trustee. It dismissed the claims against Drake for legal
malpractice and breach of fiduciary duty because he did not
have an attorney-client relationship with the beneficiaries and
owed them no duty.

¶8 The district court also found that because the partnership
interest passed to Florence upon Ernest’s death, it never became
a trust asset. The court further granted summary judgment in

4. The suit was brought against both Drake and his law firm,
Durham Jones & Pinegar PC. We refer to Drake individually and
Durham Jones & Pinegar PC and Drake collectively as “Drake.”
Drake withdrew as attorney for the Trust when the 2006 case
was filed.

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favor of Nolen for all claims resting on the allegedly unlawful
transfer of the partnership interest, and on the one remaining
claim against Drake—aiding and abetting Nolen’s breach of her
fiduciary duty in refusing to provide the accounting.

¶9 Stagg, having become successor trustee and substituted as
plaintiff, thereafter amended the complaint against Drake and
Nolen. 5 Stagg and Nolen settled the additional claims raised
against Nolen, and the 2006 case was dismissed with prejudice
in December 2011. No appeal followed the dismissal. Around
that same time, Stagg withdrew as trustee and Kara became
successor trustee.

¶10 After the 2006 case settled, the Cattani children asserted
claims against the Trust seeking reimbursement of their costs
and legal fees in bringing suit against Nolen and Drake. The
Trust settled these claims and agreed to reimburse the Cattani
children with the Trust’s funds.

¶11 In January 2010, Stagg, as trustee, sued Drake on behalf of
the Trust (the 2010 case). The 2010 case also included Maynard
as a defendant. 6 Stagg asserted claims for malpractice, breach of
contract, constructive trust, unjust enrichment, and breach of

5. The Cattani children assigned to Stagg all of the claims they
had asserted, including their claims against Drake that had been
dismissed. Stagg’s amendment did not assert any new claims
against Drake but instead reincorporated the beneficiaries’
previously asserted malpractice, breach of fiduciary duty, and
aiding and abetting claims “to avoid any argument that those
claims ha[d] been voluntarily dismissed or abandoned,” and to
ostensibly preserve claims for appeal.

6. The suit was brought against Maynard and his firm, Maynard
Cronin Erickson Curran & Sparks PLC. We refer to Maynard
individually and his firm and him collectively as “Maynard.”

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fiduciary duty. It also alleged that Maynard was liable for aiding
and abetting Nolen’s alleged breach of her fiduciary duties.

¶12 Drake moved to dismiss under rule 12(b)(6) of the Utah
Rules of Civil Procedure, arguing that the 2006 case foreclosed
the claims against him. The district court granted the motion in
part, concluding that the 2006 case precluded any claims dealing
with the partnership interest, but allowed the 2010 case to
proceed, provided the “claims going forward be based solely on
other allegations of wrongdoing not related to the Partnership
Interest.”

¶13 In November 2012, Kara, as successor trustee, filed an
amended complaint. 7 Drake eventually moved for summary
judgment, as did Maynard. The court granted the motions, and
Kara, on behalf of the Trust, appeals.

ISSUES AND STANDARD OF REVIEW

¶14 The Trust first argues that the district court erred by
dismissing its claims against Drake regarding the advice he
provided Nolen about the partnership interest. The Trust next
argues that the district court erroneously granted summary
judgment on the remaining claims against Drake. Finally, the
Trust argues that the district court erred in granting summary
judgment on its claims against Maynard. “A district court’s
ruling on either a motion to dismiss or a motion for summary

7. Stagg purportedly filed the amended complaint as plaintiff,
but the Cattani children later disclosed that at the time the
complaint was filed, Stagg had already been removed as trustee.
Two weeks after filing the amended complaint, Kara filed a
motion to substitute herself for Stagg as the real party in interest.
The court granted the motion, and Stagg was removed as a party
to the litigation. From that point on, Kara acted as both trustee
and plaintiff.

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judgment is a legal question which we review for correctness[.]”
Commonwealth Prop. Advocates, LLC v. Mortgage Elec. Registration
System, Inc., 2011 UT App 232, ¶ 6, 263 P.3d 397.

ANALYSIS

I. Motion to Dismiss

¶15 The Trust urges us to reverse the district court’s dismissal
of claims against Drake that are related to the partnership
interest “and any issues that flow from it, including [the Trust’s]
claims against [Drake] regarding conflicts of interest or breaches
of fiduciary duty that are based upon the transfer of the
Partnership Interest to Diane Nolen and the efforts of Ms. Nolen
to retain that Partnership Interest.” The district court’s reasoning
was that the court in the 2006 case had already determined
Nolen could not have breached any fiduciary duties by
acquiring the partnership interest because that interest was not a
trust asset. Thus, there was no breach relating to the advice
given by Drake concerning that interest. The district court
particularly decided that it would not retry this issue because
there was “sufficient privity between the beneficiaries who were
plaintiffs in [the 2006 case] and the Trustee who is Plaintiff in
this case that they should be considered the same for purposes of
collateral estoppel.”

¶16 Collateral estoppel bars relitigation of “facts and issues in
[a] second suit that were fully litigated in the first suit.” Searle
Bros. v. Searle, 588 P.2d 689, 690 (Utah 1978). To establish that
collateral estoppel applies, a party must meet a four-part test
asking whether (1) the issue decided in the prior adjudication
was identical to the one presented in the action in question, (2)
there was a final judgment on the merits, (3) the issue was
“competently, fully, and fairly litigated in the previous action,”
and (4) the party against whom collateral estoppel is asserted
was a party or in privity with a party in the prior adjudication.
See Tangren Family Trust v. Tangren, 2016 UT App 163, ¶ 16, 381

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P.3d 1152 (cleaned up). There is little dispute that the district
court in the 2006 case directly ruled that the partnership interest
passed to Florence Oates individually and was never part of the
Trust. That ruling ultimately resulted in a final order when the
then-existing parties settled the 2006 case.

¶17 The focus of the appeal of Drake’s motion to dismiss is the
district court’s determination regarding the final prong of the
four-part test—that Kara, the trustee plaintiff in the 2010 case,
was in privity with the beneficiary plaintiffs, the Cattani
children, in the 2006 case. The Trust challenges that
determination, arguing that “the plaintiffs in the prior action had
a very different relationship to the subject matter of the litigation
against Drake than the Trustee has in this case.” 8 We disagree
with the Trust for several reasons. First, as the district court
determined, the beneficiaries in the 2006 case and the Trust in
the 2010 case have aligned interests, which is sufficient privity.
Second, while not articulated by the district court, we determine
that it is apparent on the record here that collateral estoppel
applies because the Trust is a party in both cases.

8. Drake also claims that in “granting Drake’s motion to dismiss
on this issue, the district court did not dismiss any of [the
Cattani children’s] causes of action, but instead disallowed [the
Cattani children] from basing those causes of action on the
Partnership [Interest] allegations.” Whether the grant of the
motion to dismiss means the claims were dismissed or were
simply “disallowed,” the result remains the same. The district
court decided that because there was privity between the
plaintiffs in each case, it would not consider claims related to the
partnership interest. We also note Drake’s use of “the Cattanis,”
while perhaps employed for rhetorical purposes, is done in
error. We recognize that the Cattani children are not parties to
this suit, which was brought solely by Kara in her role as trustee.
We nevertheless quote Drake’s argument as it appears in his
brief.

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¶18 As to privity, our supreme court has clarified, “This
means that the plea of collateral estoppel can be asserted only
against a party in the subsequent suit who was also a party or in
privity with a party in the prior suit.” Searle Bros., 588 P.2d at
690–91. “The legal definition of a person in privity with another,
is a person so identified in interest with another that he
represents the same legal right. Thus, privity depends mostly on
the parties’ relationship to the subject matter of the litigation.”
Press Publ’g, Ltd. v. Matol Botanical Int'l, Ltd., 2001 UT 106, ¶ 20,
37 P.3d 1121 (cleaned up). For example, in Hansen v. Bank of New
York Mellon, 2013 UT App 132, 303 P.3d 1025, this court
determined that a bank as a beneficiary under Hansen’s trust
deed represented the same legal interests in a state court action
as did the trustee under the trust deed in a prior federal suit. Id.
¶¶ 7–10. Hansen had sued the bank in federal court to prevent a
foreclosure on his property on the basis that the bank did not
own a legal interest in the property. Id. ¶ 3. The federal suit was
dismissed with prejudice. Id. Hansen had simultaneously filed
an action in state court asserting a claim against the trustee on
the trust deed. Id. ¶ 4. The state court dismissed Hansen’s claims
regarding the foreclosure proceedings on the basis that they had
already been decided in the federal court case. Id. Hansen
argued on appeal that only the beneficiaries had been parties in
the federal suit and that the trustee’s interest was “substantively
different from that of a beneficiary.” Id. ¶ 9. This court disagreed
and looked at the remedy Hansen sought—preventing
foreclosure—and whether the interests of the trustee and the
beneficiaries were aligned on this issue, ultimately determining
that the beneficiaries and the trustee were in privity. Id. ¶ 10.

¶19 That same principle applies here. In the 2006 case, before
it was fully resolved by settlement, the district court directly
ruled that the partnership interest was never part of the Trust.
The Cattani children, including Kara, vigorously opposed that
determination. The identical legal issue was in question in the
2010 case: whether the partnership interest was part of the Trust.
There, the Trust—through its trustee, Kara—argued that the
partnership interest was never part of the Trust. Because the

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interests of the Cattani children and the Trust were aligned on
this issue, and because the court previously ruled on the issue in
the 2006 case, the district court in the 2010 case was correct in
determining that sufficient privity existed and collateral estoppel
applied.

¶20 But of equal importance is the fact that, after Nolen was
removed as trustee in the 2006 case, Stagg substituted as trustee
for the Trust. Stagg, on behalf of the Trust, filed an amended
complaint and reasserted all claims for the purpose of avoiding
any argument that the claims had been abandoned and expressly
to preserve all claims for appeal. Thus, the Trust was an actual
party to the 2006 case where the issue of whether the partnership
interest was part of the Trust was fully litigated. Therefore, it is
unnecessary to even reach the issue of privity given that the
Trust was a party in both cases. Although this argument was not
raised by the parties in their briefs, it is clearly apparent in the
record. “It is well established that an appellate court may affirm
a judgment if it is sustainable on any legal ground or theory
apparent on the record, even though such ground or theory
differs from that stated by the [district] court to be the basis of its
ruling or action.” Scott v. Scott, 2017 UT 66, ¶ 18 (cleaned up).

¶21 The Trust also asserts that collateral estoppel cannot
apply because the issues in the 2006 case and the 2010 case are
not identical. Specifically, the Trust contends that because the
2006 case did not address the issue of whether Nolen unduly
influenced Florence to persuade her to transfer the partnership
interest to Nolen, the issue presented in the current case was
never decided. We reject this assertion. The discrete issues in the
2006 case were (1) whether the partnership interest should have
passed to the Trust as a matter of law and (2) whether Nolen
breached her fiduciary duty by accepting ownership of the
partnership interest. The claim at issue in the present case is
whether Drake is liable for advice he purportedly gave or did
not give Nolen regarding retention of the partnership interest.
While at first blush this issue might appear distinct from the two
issues decided in the 2006 case, we conclude that the Trust is, in

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actuality, simply repackaging its earlier claim by altering an
underlying theory while seeking an identical remedy; this
cannot result in the escape from collateral estoppel.

¶22 The district court in the 2006 case concluded that, as a
matter of law, the Cattani children had not established that
Nolen breached any fiduciary duty in obtaining the partnership
interest. Now, the Trust contends that this conclusion had
nothing to do with whether Nolen “acquire[d] the partnership
interest through undue influence.” This contention is perplexing.
To accept it, we would have to conclude that Nolen could have
exerted undue influence in keeping an asset from the Trust while
simultaneously not breaching her fiduciary duties as trustee.
Such a conclusion would defy logic. Cf. Close v. Adams, 657 P.2d
1351, 1353 (Utah 1983) (concluding that the doctrine of
constructive trust was inapplicable where a conveyor “was free
of undue influence of the family” and comparing that situation
to other case law where a party “did not engage in any fraud,
bad faith or breach of a fiduciary responsibility”). And while
there are several ways a trustee could breach her fiduciary duties
without exerting undue influence, see Haws v. Jensen, 209 P.2d
229, 232 (Utah 1949) (concluding that a breach of “the
confidential relation consist[ed] merely in the failure of the
transferee to perform his promise,” “even though he was not
guilty of undue influence in procuring the conveyance”), 9 we

9. See also Powell v. Moore, No. W199800001COAR3CV, 2000 WL
286729, at *4 (Tenn. Ct. App. Feb. 17, 2000) (explaining that a
trustee breached relevant fiduciary duties “by overreaching and
exerting undue influence”); Daily v. Wheat, 681 S.W.2d 747, 758
(Tex. App. 1984) (concluding that a trial court did not abuse its
discretion by severing claims where the decision was based on a
conclusion “that any questions regarding a breach of fiduciary
duties could be addressed within the context of undue
influence”); cf. Sinclair v. Bloom, No. 94 C 4465, 1995 WL 348127,
at *7 n.7 (N.D. Ill. June 8, 1995) (“A claim that an attorney
exercised undue influence may also be stated as a claim for a
(continued…)

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cannot conceive of a situation where the opposite would be true.
Said another way, by concluding that Nolen breached no
fiduciary duty in obtaining the partnership interest, the district
court in the 2006 case implicitly concluded that Nolen exerted no
undue influence. The Trust is therefore collaterally estopped
from asserting any claim against Drake that rests on its claim,
litigated in the 2006 case, that Nolen exerted undue influence
over Florence.

¶23 Accordingly, having been a party to the prior action
where the district court decided the issue of the partnership
interest, and where the other elements of collateral estoppel
apply, the district court’s conclusion that any issue stemming
from the transfer of the partnership interest could not be
relitigated was correct. Further, because the partnership interest
was not part of the Trust, and because Nolen obtained the
interest without breaching her fiduciary duties as trustee, any
advice Drake may have given regarding that interest was not
actionable as a matter of law. We therefore affirm the district
court’s decision on this issue.

II. Drake’s Motion for Summary Judgment

¶24 In granting Drake’s motion for summary judgment, the
district court made four separate legal conclusions, and the Trust
takes issue with all of them. First, the court determined that, as a
matter of law, Drake was not negligent in advising Nolen that
she need not provide an accounting of the Trust for the period of
time prior to Florence’s death. Second, the court determined that

(…continued)
breach of fiduciary duty.”). But see Cloud v. United States Nat’l
Bank of Oregon, 570 P.2d 350, 354 (Or. 1977) (explaining the court
“cannot agree” with plaintiff’s contention “that a finding of . . .
undue influence . . . is equivalent to finding that the trustee has
breached its fiduciary obligation to the beneficiaries of the
trust”).

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regardless, “Drake was within the bounds of judgmental
immunity which protects attorneys who make judgments that
may later be found to be in error, but are based on uncertain,
ambiguous, or otherwise unclear principles.” Third, the court
determined that there was “no proof” supporting the Trust’s
claims that Nolen misused $200,000 of the Trust’s funds nor of
Drake’s knowledge of the alleged misuse. Fourth, the court
determined that claims of negligence against Drake for advice
surrounding the partnership interest “should not even be
raised” given its earlier ruling that the issues were barred by
collateral estoppel. We consider each of these points in turn.

A. Advising Nolen Against Providing Accounting

¶25 The district court pointed out that it is undisputed that
Drake advised Nolen not to provide an accounting to the
remaining beneficiaries of the Trust for the time period prior to
Florence’s death. However, the court went on to determine, “A
clear reading of the [Trust] leads the court to the conclusion that
the requested accounting was not required.” Thus, in the court’s
view, Drake was entitled to judgment as a matter of law on this
point.

¶26 The Trust asserts that the grant of summary judgment
was erroneous. “At the very least,” it argues, “there are factual
issues as to whether Drake’s services fell below the standard of
care.”

¶27 “Ordinarily, whether a defendant has breached the
required standard of care is a question of fact for the jury.”
Jackson v. Dabney, 645 P.2d 613, 615 (Utah 1982). “A genuine issue
of fact exists where, on the basis of the facts in the record,
reasonable minds could differ on whether defendant’s conduct
measures up to the required standard.” Id. However, “the
question of whether an attorney made an erroneous legal
interpretation is a question of law,” and “we will afford the
[district] court’s decision no deference but review it for

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correctness.” Watkiss & Saperstein v. Williams, 931 P.2d 840, 846–
47 (Utah 1996).

¶28 The district court determined in the 2010 case that
because Drake properly interpreted the Trust instrument’s terms
in advising Nolen that she need not provide an accounting for
the time period before Florence’s death, his conduct was
reasonable. But, like the district court in the 2006 case, we
disagree and conclude that the Trust instrument in fact required
such an accounting; therefore, the district court’s determination
in the 2010 case cannot stand.

¶29 Two provisions of the Trust instrument are central to this
case as it relates to the Cattani children’s request for an
accounting. One provision directs, “Accounting shall be made
only to the oldest adult beneficiary of any trust hereunder at
such time as said beneficiary shall demand.” Kent made his
request for accounting on behalf of his mother, the oldest adult
beneficiary of the Trust. But Nolen, relying on Drake’s
interpretation of another trust provision, took the position that
she need not provide an accounting from 1999, when she became
Florence’s co-trustee, to 2005, when Florence died. That
provision reads, “Any successor Trustee hereunder shall be
liable and responsible only for such assets as are actually
delivered to him, without obligation to make accounting for all
assets originally in the hands of a predecessor Trustee.” We
cannot read this provision to support Drake’s, or the district
court’s, interpretation and resulting conclusion that the
requested accounting was not required.

¶30 Under the relevant trust provisions, Nolen was required
to provide the requested accounting.

We employ familiar principles of contract
interpretation when construing trust instruments.
We begin our analysis with the language of the
trust agreement to ascertain the intent of the
settlor. Because we presume that the settlor knew

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and intended the legal effect of the language used,
we give the words used in the trust agreement
their ordinary and usual meaning.

Dahl v. Dahl, 2015 UT 79, ¶ 29 (cleaned up).

¶31 The parties agree that Nolen was a successor trustee. The
dispute, then, is over the trust’s direction that Nolen “be liable
and responsible only for such assets as are actually delivered to”
her and that she not have an “obligation to make accounting for
all assets originally in the hands of a predecessor Trustee.” We
consider each of these phrases in turn.

¶32 When a successor trustee becomes such, she becomes a
steward of the trust assets. Cf. Pepper v. Zions First Nat’l Bank,
NA, 801 P.2d 144, 151 (Utah 1990) (“A successor trustee is liable
for breach of trust if he neglects to take proper steps to compel
his predecessor to deliver the trust property to him.” (cleaned
up)). And the trust instrument essentially adopts an approach
used by jurisdictions throughout the country—that “a successor
trustee is only responsible for the assets which come into his or
her hands and has no particular legal duty to seek an accounting
from his or her predecessors.” 90A C.J.S. Trusts § 346 (2018). The
assets “actually delivered to” Nolen were all assets belonging to
the Trust at the time she became co-trustee. And, under the
terms of the trust instrument, she was “liable and responsible”
only for those assets; she had no liability or responsibility for
assets that had once been part of the Trust and no longer were.
In other words, Nolen was responsible for all property
belonging to the Trust beginning on the date in 1999 when she
became Florence’s co-trustee.

¶33 The question then becomes whether Nolen was required
to provide an accounting for trust assets she received and was
responsible for dating back to 1999 or whether her obligation to
provide an accounting arose only after Florence died in 2005.
Said another way, we must determine whether the trust

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instrument allowed Nolen to administer trust assets without
requiring her to account for them.

¶34 The trust instrument itself established that Nolen had no
“obligation to make accounting for all assets originally in the
hands of a predecessor Trustee.” (Emphasis added.) Read in
context with the rest of the trust provision where that phrase
appears, it is clear that Nolen had an obligation to account only
for trust assets that were actually delivered to her—for which
she was liable and responsible. No one could require her to
account for the entirety of assets held by her predecessors.

¶35 This determination is based on the provision’s use of the
word “all.” That word can mean “the whole amount or
quantity” or it can mean “every member or individual
component.” All, Webster’s Third New Int’l Dictionary 54 (1971).
The proper interpretation of the trust instrument requires us to
decide whether the word “all” means the entirety or “whole
amount” of “assets originally in the hands of a predecessor
Trustee” or any one of the individual “assets originally in the
hands of a predecessor Trustee.”

¶36 Case law has acknowledged that sometimes “any” and
“all” are synonymous. See Graves v. North E. Services, Inc., 2015
UT 28, ¶ 52 & n.4, 345 P.3d 619 (discussing the “broad,
encompassing import of” the word “any” and collecting cases
interpreting the term broadly). But our supreme court has also
recognized that sometimes “all” and “any” do not mean the
same thing. See In re General Determination of Rights to the Use of
Water, 2004 UT 106, ¶¶ 23–24, 110 P.3d 666 (interpreting a
statute’s use of the word “any” and discussing how the
operation of that statute would change if the legislature had
instead used the word “all”); Dowling v. Bullen, 2004 UT 50, ¶ 11,
94 P.3d 915 (rejecting an “argument that the inclusion of the
word ‘any’ in [a particular section] reveals the legislature’s intent
that the [Utah Health Care Malpractice Act] apply to every cause
of action involving the provision of health care services by a
health care provider”).

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¶37 Given the context in which the word “all” appears in the
relevant trust provision, we conclude that it does not mean
“any”; instead, it references the entirety of trust assets held by a
predecessor trustee—the comprehensive body of assets that
Nolen’s predecessor originally had in his hands. It does not
mean each asset in the predecessor’s hands, considered
individually. Thus, if a particular asset were delivered to Nolen
as trustee, becoming an asset for which she was responsible for,
she would be expected to account for that asset. What she was
not expected to do was look back at that comprehensive body of
assets that existed before she succeeded as trustee and account
for it. To conclude otherwise would yield an illogical result. It
would allow any successor trustee to administer trust assets
without ever needing to account for that administration, so long
as the assets being used became part of the trust before the
successor trustee assumed her role.

¶38 Because the Cattani children in the 2006 case sought an
accounting from 1999 to 2005, when Nolen acted as co-trustee,
they were entitled to an accounting for that period. And Nolen,
as successor trustee at that time, had an obligation to provide an
accounting for all trust assets that had been delivered to her.
Drake misinterpreted the trust provision and erroneously
advised Nolen not to provide the requested accounting. The
district court similarly misinterpreted the trust terms. Under
these circumstances, we reject the district court’s determination
“that the requested accounting was not required” and reverse its
grant of summary judgment in Drake’s favor.

B. Judgmental Immunity

¶39 The district court separately concluded that “[i]f there
was any ambiguity” regarding whether the accounting was
required, “Drake was within the bounds of judgmental
immunity which protects attorneys who make judgments that
may later be found to be in error, but are based on uncertain,
ambiguous, or otherwise unclear principles. For this reason [the

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Trust’s] claim fails.” The Trust suggests, “That ruling is a
misapplication of the judgmental immunity defense.”

¶40 The judgmental immunity doctrine, as it exists in our
jurisprudence, comes from Watkiss & Saperstein v. Williams, 931
P.2d 840 (Utah 1996). In that case, our supreme court explained
that in a legal malpractice context, “[i]f the plaintiff successfully
shows that his attorney erred under applicable law, it is well
recognized that the attorney may still avoid liability by showing
that his error was the result of an uncertain, unsettled, or
debatable state of the applicable law.” Id. at 846. Whether an
attorney’s “error was caused by vagaries in the law raise[s]
questions of law to be decided by the court.” Id. “On appeal, we
apply the same standards. Because the question of whether an
attorney made an erroneous legal interpretation is a question of
law, we will afford the trial court’s decision no deference but
review it for correctness.” Id. at 846–47.

¶41 While the doctrine of judgmental immunity remains
relatively unexplored by Utah’s appellate courts, Watkiss makes
clear that (1) an attorney seeking to avoid liability has the
burden of showing that the immunity applies and (2) the
doctrine applies where the attorney’s error was due to the fact
that the state of the law applicable to the underlying case is
“uncertain, unsettled, or debatable.” 10 Id. at 846.

10. The Watkiss court also suggested that to qualify for
judgmental immunity, the lawyer may have to demonstrate that
the lawyer “perform[ed] the research and investigation
necessary to make an informed judgment. This is so that the
lawyer will follow the best and most logical interpretation out of
a number of reasonable interpretations.” Watkiss & Saperstein v.
Williams, 931 P.2d 840, 851 (Utah 1996) (citations omitted).
Because we conclude that Drake has not demonstrated that the
law he applied was unclear or unsettled, we need not resolve
whether he met this standard.

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¶42 In his memorandum supporting his motion for summary
judgment, Drake asserted judgmental immunity as a defense. He
argued that the defense applied because “the law is unclear,
unsettled by case law, and is an issue or issues upon which
reasonable doubt may well be entertained by informed counsel.”
(Quoting Bergstrom v. Noah, 974 P.2d 531, 557 (Kan. 1999).) He
also argued that his representation included “at least reasonable
advice in an unsettled area of the law, and cannot, therefore,
constitute a breach of any duty.” But Drake (and likewise the
district court) never identified what area of the law was
unsettled or unclear, and how that led to his error. Further, in
asserting judgmental immunity, Drake conflated the question of
professional negligence with the applicability of a defense
against a claim of negligence. He argues that his advice was
reasonable, which speaks to the question of breach, an element
of negligence; that the advice was given in an unsettled area of
the law, which speaks to the applicability of a judgmental
immunity defense; and concludes that there was no breach of
duty, which goes back to whether Drake was negligent in his
representation. Given his inability to articulate how he was
protected by judgmental immunity, we cannot conclude that he
met his burden of “showing that his error was the result of an
uncertain, unsettled, or debatable state of the applicable law.”
See Watkiss, 931 P.2d at 846. The district court’s ruling likewise
fails to identify what law was uncertain, unsettled, or debatable
such that a court could conclude as a matter of law that
judgmental immunity applies.

¶43 The district court’s ruling that “Drake was within the
bounds of judgmental immunity” is conclusory at best. Our
rules require that when a motion for summary judgment “is
based on more than one ground, the court must issue a brief
written statement of the ground for its decision.” Utah R. Civ. P.
52(a)(6). In other words, while the district court was free to be
brief in its reasoning, it was nevertheless required to provide its
reasoning when the motion with respect to this claim was based
on multiple grounds. And if its reasoning for applying
judgmental immunity is different from what we are able to

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discern from its written ruling, it failed to comply with rule 52 of
the Utah Rules of Civil Procedure. See id.

¶44 Drake failed to show how the state of the law—relevant to
his interpretation of the trust instrument—was uncertain,
unsettled, or debatable. And the district court did not appear to
consider whether the law was such, instead applying judgmental
immunity because it had determined that Drake was entitled to
advise Nolen not to provide an accounting of the trust assets for
the time prior to Florence’s death—a determination reversed
above. Under the record before us, the judgmental immunity
rule does not apply, and we reverse the district court’s
alternative grounds for granting Drake summary judgment.

C. Nolen’s use of $200,000 from trust funds

¶45 The district court concluded that “Drake breached no
duty to inform Nolen of a conflict of interest and a duty to resign
under” the circumstances of this case. One of those
circumstances was Nolen’s alleged misuse of $200,000 of trust
funds. In the district court’s view, “there is no proof even to this
day despite over seven years of litigation, that this is true.” The
Trust asserts, “That finding is obviously wrong.” Because this
appears to either be a finding of fact inappropriately made on
summary judgment, see Berenda v. Langford, 914 P.2d 45, 54 (Utah
1996) (explaining that “factual findings . . . preclude summary
judgment in all but the clearest of cases”), or an oversight of
evidence presented that created a dispute of fact, we agree with
the Trust.

¶46 Kyle filed a declaration outlining irregularities he found
in documents he obtained from Nolen. One such irregularity
was the apparent use of trust funds to pay Nolen’s “personal
mortgage monthly payment on numerous occasions” and “for
numerous personal expenditures.” Furthermore, Nolen had
provided a preliminary accounting in the 2006 case, which was
before the district court in the present case. The Trust argues that
the accounting demonstrates Nolen’s misuse of trust funds and

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that “even if Drake can point to contrary evidence, that would
simply result in a disputed fact, the existence of which precludes
summary judgment.” We agree. See Nyman v. McDonald, 966
P.2d 1210, 1213 (Utah Ct. App. 1998) (“One sworn statement
under oath involving a material fact is all that is necessary to
create a factual issue, thereby precluding summary judgment.”
(cleaned up)). The district court therefore erred when it
concluded that no evidence existed to support the Trust’s claim
that Nolen had misused trust funds.

¶47 The district court later concluded, in the alternative, that
even if such evidence existed, “there is no evidence that Drake
knew of the alleged misuse of trust assets.” And that “absent
active participation and knowledge of a breach of fiduciary duty
by the trustee, the attorney cannot be held responsible to third
parties, even beneficiaries.”

¶48 One of the misuses the Trust alleged was that Nolen had
used trust funds to pay her personal attorney fees. Maynard,
Nolen’s personal attorney, testified in his deposition that Nolen
“had been told by counsel from Utah that she should pay [him]
from the trust.” 11 Given this testimony, there is at least a dispute
of fact regarding whether Drake knew of Nolen’s misuse of trust
funds relative to her attorney fees, and, viewing the evidence in
the light most favorable to the Trust, there is also the suggestion
that Drake actively participated in that activity. Because there
was a dispute of fact preventing summary judgment on this
issue, the district court erred in granting summary judgment in
favor of Drake.

11. Drake has suggested no other plausible interpretation of
“counsel from Utah” than that Maynard was referring to him.
And while we recognize that the evidence appears to be rank
hearsay, there was no objection below, and indeed, Drake
invited the court to accept the factual assertions as true. Drake
instead argued below that assuming those facts as true, he
should prevail as a matter of law.

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D. Advice Regarding the Partnership Interest

¶49 The district court rejected the Trust’s claims “that Drake
negligently advised Nolen that she didn’t have a conflict of
interest when she retained the . . . partnership interest.” The
district court based this rejection on the fact that it had
“previously ruled” that the partnership interest was not a trust
asset and that it had “also ruled in this case that those claims
should not even be raised.” In other words, the summary
judgment ruling on these particular claims was premised on the
district court’s earlier determinations that collateral estoppel
acted to bar the claims. As we have already explained, the
district court correctly concluded that collateral estoppel applies
to this case. See supra ¶¶ 16–23. And because we concluded that
the district court’s collateral-estoppel determinations were
correct, we also affirm the district court’s grant of summary
judgment on the claims based on the partnership interest. 12

III. Maynard’s Motion for Summary Judgment

¶50 After granting summary judgment in favor of Drake, the
district court received Maynard’s motion for summary
judgment. In deciding Maynard’s motion, the district court
categorized the claims against Maynard in the following ways:
legal malpractice claims, unjust enrichment and constructive
trust claims, and the aiding and abetting claim. The district court
granted summary judgment on all claims. On appeal, the Trust
does not challenge summary judgment on the legal malpractice
claims and we therefore do not address them.

12. It strikes us as odd that a district court would grant summary
judgment on claims it had already dismissed, but our reading of
the summary judgment ruling seems to suggest that this is what
happened here and so we conclude the district court got it
right—twice.

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A. Unjust Enrichment and Constructive Trust

¶51 The Trust asserted a claim of unjust enrichment and
sought the equitable relief of a constructive trust for “legal fees
paid by Nolen to Maynard out of Trust assets.” “There is no
dispute that Maynard performed the legal services for Nolen
and that he was paid by Nolen from Trust assets.” Thus, the
central question before the district court was whether Maynard
was unjustly enriched by his receipt of those funds and, if not,
was thus entitled to judgment as a matter of law. See Utah R.
Civ. P. 56(a) (summary judgment shall be granted “if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law”).

¶52 On appeal the Trust asserts that the district court
erroneously granted summary judgment by concluding that the
Trust waived its claims against Maynard by way of the
settlement and that the settlement agreement operated as a
release of Maynard under Utah Code section 15-4-5. But in
attacking these conclusions, it ignores the primary basis of the
district court’s ruling. The district court in its memorandum
decision stated:

As far as unjust enrichment goes, it appears quite
clear that if anyone was unjustly enriched it was
Nolen. This is especially true if [the Trust] takes the
position that Nolen did not reimburse her for those
legal fees in the settlement. If she did not, and [the
Trust] is correct that she should not have used
Trust funds to pay those fees, then she has received
free legal services. That would be unjust
enrichment indeed.

[The Trust] has focused [its] attention on the wrong
party by suing Maynard for the fees that he was
paid while performing legal services for Nolen.

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The Trust’s briefs are silent as to the district court’s conclusion
that the Trust had sued the wrong party under the circumstances
of this case. Thus, the Trust has failed to address the actual basis
of the district court’s decision. While the district court did
address waiver and Utah Code section 15-4-5, those bases were
in addition to the conclusion that the Trust had sued the wrong
party. Where an appellant fails to address the basis of the district
court’s ruling, we reject the challenge. Golden Meadows Props., LC
v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375.

¶53 Accordingly, we affirm the district court’s grant of
summary judgment in favor of Maynard on unjust enrichment.

B. Aiding and Abetting

¶54 In determining that Maynard was entitled to judgment as
a matter of law on the Trust’s aiding and abetting claim, the
district court explained, “There is no reasonable evidence that
Maynard even knew about the alleged misappropriations by
Nolen until after the [the 2006 case] was over.” Because he did
not know about the alleged misappropriations, he could not
have aided or abetted them. See Mower v. Simpson, 2012 UT App
149, ¶ 37, 278 P.3d 1076 (“[T]he gravamen of the claim of aiding
and abetting a breach of fiduciary duty is the defendant’s
knowing participation in the fiduciary’s breach.” (cleaned up)).
The district court separately determined that because Maynard
did not act outside the scope of his representation, the “claim is
not actionable in this case and summary judgment is granted.”

¶55 The only evidence the Trust points to in support of its
claim that Maynard knew about the alleged misappropriations is
a meeting between Kent and Maynard in 2006. At that meeting,
“Maynard referred to a stack of documents on his desk and
stated that Kent would be surprised when he learned how much
money had gone through the Trust’s accounts.” In the Trust’s
view, the district court should have inferred from this encounter
“that Maynard had access to the records showing how much
money had gone through the Trust, that Maynard had already

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reviewed these records, and that Maynard already knew the
surprising details about how much money had been spent.”
Even if these inferences were reasonable, they do not support a
claim that Maynard was aware that Nolen had misappropriated
trust funds. Knowing how much money passed through an
account does not mean Maynard knew what the money was
used for. And even if the Trust had shown that Maynard knew
what the money was used for (which it did not), there is no
evidence to suggest that Maynard knew those uses were
inappropriate. We therefore affirm the district court’s ruling on
this point.

¶56 The Trust also argues that “even if it were true that
Maynard had no knowledge that Nolen was breaching her
fiduciary duty by misappropriating Trust assets for her personal
use, that is no basis for granting summary judgment with respect
to Nolen’s other breaches of fiduciary duty of which Maynard
had full knowledge.” “For example,” the Trust continues,

Maynard knew of Nolen’s refusal to provide the
requested accounting, and he took material[] steps
to assist her with that refusal. Similarly, Maynard
knew that Nolen was using Trust assets to pay his
invoices, even though he represented her in her
personal interests against the Trust’s interests. And
Maynard knew that Nolen was breaching her
fiduciary duty by continuing to act as Trustee
despite the existence of her conflicts of interest.

The Trust makes all these assertions without citation to the
record, without discussing what evidence was before the district
court to support these claims, and without reference to any
specific portion of the district court’s summary judgment order
the Trust takes issue with. For these reasons, we reject the
challenge because the Trust has failed to adequately brief the
issue. See Utah R. App. P. 24 (requiring appellate briefs to

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contain appropriate headings, citation to the record, and
argument with reasoned analysis).

¶57 Additionally, the district court’s alternative ground for
granting summary judgment stands, even if we were to assume
that the Trust was correct and the evidence demonstrated
Maynard’s knowledge of Nolen’s other breaches of her fiduciary
duties. The court explained that “the law applicable to attorneys
is that in order for them to be potentially liable for aiding and
abetting they must have acted outside the scope of their
representation and in their self-interest.”

¶58 The Trust argues that the district court’s order in this
regard failed to follow Utah law. In the Trust’s view, the rule
relied upon by the court comes from “cases from other
jurisdictions” that “are neither controlling nor persuasive.”
Maynard counters that whether we follow the law of other
jurisdictions or the traditional elements of an aiding and abetting
claim, the district court’s grant of summary judgment should
stand.

¶59 The cases relied on by each party demonstrate that
differing jurisdictions disagree less about the proper elements of
an aiding and abetting claim asserted against attorneys and
more about whether such a claim can even be asserted against an
attorney. “Utah law recognizes a cause of action for aiding and
abetting the breach of a fiduciary duty.” Mower v. Simpson, 2012
UT App 149, ¶ 38, 278 P.3d 1076. But see Coroles v. Sabey, 2003 UT
App 339, ¶ 9 n.10, 79 P.3d 974 (noting that the district court
“dismissed the claims of aiding and abetting breach of fiduciary
duty and aiding and abetting fraud . . . because these claims are
not cognizable under Utah law” but not analyzing or discussing
this ruling on appeal (cleaned up)). But we have not found any
Utah case—and the parties direct us to none—addressing the
question of whether an attorney can be liable for the breach of a
fiduciary duty on a theory of aiding and abetting.

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¶60 Some jurisdictions throughout the country have answered
this question in the affirmative, including some that have set
forth additional elements that must be proven if such a cause of
action is allowed. Those jurisdictions include Arizona, Illinois,
New Mexico, Oregon, and South Dakota. 13 In other
jurisdictions—such as California, Colorado, and Texas—the law
is either less clear or the cause of action is not allowed. 14 We

13. See Chalpin v. Snyder, 207 P.3d 666, 677 (Ariz. Ct. App. 2008)
(“reject[ing] the trial court’s conclusion that aiding and abetting
is not a valid cause of action against lawyers”); Thornwood, Inc. v.
Jenner & Block, 799 N.E.2d 756, 768 (Ill. App. Ct. 2003)
(“Although Illinois courts have never found an attorney liable
for aiding and abetting his client in the commission of a tort, the
courts have not prohibited such actions.”); Durham v. Guest,
2007-NMCA-144, ¶¶ 14–19, 171 P.3d 756, 758 (applying the
elements of the tort of aiding and abetting breach of a fiduciary
duty to an attorney defendant), rev'd on other grounds, 2009-
NMSC-007, 204 P.3d 19; Reynolds v. Schrock, 142 P.3d 1062, 1069
(Or. 2006) (holding “that a lawyer acting on behalf of a client and
within the scope of the lawyer-client relationship is protected by
. . . privilege and is not liable for assisting the client in conduct
that breaches the client’s fiduciary duty to a third party.
Accordingly, for a third party to hold a lawyer liable for
substantially assisting in a client’s breach of fiduciary duty, the
third party must prove that the lawyer acted outside the scope of
the lawyer-client relationship.”); Chem-Age Indus., Inc. v. Glover,
2002 SD 122, ¶¶ 44, 46, 652 N.W.2d 756 (to bring a claim of
aiding and abetting a breach of fiduciary duty against an
attorney defendant, the “plaintiff must show that the attorney
defendant rendered ‘substantial assistance’ to the breach of duty,
not merely to the person committing the breach”).

14. See Wolf v. Mitchell, Silberberg & Knupp, 90 Cal. Rptr. 2d 792,
798 (Ct. App. 1999) (discussing cases addressing the question of
“when actions by an attorney for a trustee will give rise to
liability to a beneficiary of the trust” and explaining that “an
(continued…)

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need not definitively answer the question to resolve the case
before us. Assuming a cause of action for aiding and abetting the
breach of a fiduciary duty can be sustained against an attorney
in Utah, the Trust would need to at least demonstrate knowing
participation in the breach. See Mower, 2012 UT App 149, ¶ 37.
We have already addressed the Trust’s failure to put forth
evidence supporting a reasonable inference of Maynard’s
knowledge of Nolen’s breach of her fiduciary duties. But beyond
that, the Trust has not shown how Maynard participated in any
breach. And we agree with the district court that “[s]imply

(…continued)
attorney may be liable to a trust beneficiary for the attorney’s
active participation in a trustee’s breach of duty if the attorney
acted in furtherance of his or her own financial gain, or
committed actual fraud by making express misrepresentations to
the beneficiary”); Alexander v. Anstine, 152 P.3d 497, 503 (Colo.
2007) (“[Saving] for another day the question of whether an
attorney can ever be liable for aiding and abetting a breach of
fiduciary duty to a non-client”); Span Enters. v. Wood, 274 S.W.3d
854, 858–59 (Tex. App. 2008) (noting that “Texas courts have
refused to expand Texas law to allow a non-client to bring a
cause of action for aiding and abetting a breach of fiduciary
duty, based upon the rendition of legal advice to an alleged
tortfeasor client” while also concluding that because the
defendant’s “actions were as [the alleged tortfeasor’s] attorney,
[the defendant’s] conduct was not independent of his
representation of his client” and thus “the trial court did not err
by determining that [plaintiffs] failed to plead a cognizable cause
of action for aiding and abetting a breach of fiduciary duty”
(cleaned up)). But see Everest Inv’rs 8 v. Whitehall Real Estate Ltd.
P’ship XI, 123 Cal. Rptr. 2d 297, 303 (Ct. App. 2002) (encouraging
the California “Supreme Court to revisit these issues” and
opining that “we do not see how the agent’s unauthorized and
self-serving act can make him liable to a third party for
conspiracy to breach a fiduciary duty that he does not owe to
anyone”).

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giving legal advice, even in the face of knowledge of the breach
of the fiduciary duty” is not enough to show that Maynard
participated in the breach. 15 Accordingly, we affirm the district
court’s grant of summary judgment in Maynard’s favor.

CONCLUSION

¶61 The district court was correct in dismissing the Trust’s
claims dealing with the partnership interest because the doctrine
of collateral estoppel applies in this case. However, its grant of
summary judgment in Drake’s favor was erroneous in part
because there were either issues of material fact or Drake was
not entitled to judgment as a matter of law. We therefore affirm
the order of dismissal but reverse the grant of Drake’s motion for
summary judgment. Further, we affirm the district court’s grant
of summary judgment in favor of Maynard.

15. This is supported by the law of other jurisdictions. See Pierce
v. Lyman, 3 Cal. Rptr. 2d 236, 241 (Ct. App. 1991) (“The rendering
of legal advice to the trustee was insufficient; the attorney must
have actively colluded with the trustee in breaching the trustee’s
fiduciary duties.”); Chem-Age Indus., Inc., 2002 SD 122, ¶ 44
(explaining that a liable attorney must have “rendered
‘substantial assistance’ to the breach of duty, not merely to the
person committing the breach”).

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