In re Agusta National Trust 1

2023 UT App 135

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE AGUSTA NATIONAL TRUST #1

MICHELE WEEKS,
Appellant,
v.
MICHAEL GRAY WEEKS, JESSICA ELIZABETH WEEKS, MISSY LEIGH
WEEKS, NATALIE SUSANNAH WEEKS, AND GINGER MONSEN,
Appellees.

Opinion
No. 20210636-CA
Filed November 9, 2023

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 193900350

Kenneth L. Reich and Daniel F. Bertch,
Attorneys for Appellant
Robert E. Mansfield and Megan E. Garrett,
Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

MORTENSEN, Judge:

¶1 Mark Twain had “no respect” for the person who could
“spell a word only one way.” 1 But consistent spelling proves to be

1. The attribution to Samuel Clemens is a matter of some dispute.
There are many variations on the quip, along with numerous
potential originators. See No Respect for a Man Who Can Spell a Word
Only One Way, Quote Investigator, https://quoteinvestigator.com
(continued…)
In re Agusta National Trust #1

remarkably helpful—as this case demonstrates—when drafting
legal documents. Ken Weeks placed two pieces of property into
the same irrevocable trust, or so it appeared. Confusion crept in
for two reasons. First, Ken 2 conveyed those two properties using
two different spellings for the trust. Although Ken conveyed these
properties while married to his first wife, this inconsistency led
his second wife, Michele Weeks, to contend after Ken’s death that
there were really two trusts, an arrangement that would be to her
benefit. Second—and unrelated to the spelling issue—the divorce
decree for Ken’s first marriage distributed an interest in the two
pieces of trust property, leading Michele to assert that the
irrevocable trust had been modified. The district court did not
agree with Michele on either point and granted summary
judgment in favor of the children from Ken’s first marriage. We
affirm.

BACKGROUND

¶2 Ken married Sue Ruff in 1983, and they had four children
together: Michael Gray Weeks, Jessica Elizabeth Weeks, Missy
Leigh Weeks, and Natalie Susannah Weeks.

/2010/06/25/spelling [https://perma.cc/7G5Y-G2T2]; see also Lay
Kim, Never Trust a Man Who Has Only One Way to Spell a Word,
Quotationize, https://quotationize.com/never-trust-a-man-who-
has-only-one-way-to-spell-a-word [https://perma.cc/5V78-2CLW
]; The Yale Book of Quotations 782 (Fred R. Shapiro Ed., Yale Univ.
Press 2006).

2. For readability, consistency, and clarity, we will use given
names throughout this opinion.

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In re Agusta National Trust #1

Agusta Trust

¶3 On November 23, 1993, Ken created the “The Agusta
National Trust #1” (Agusta Trust). 3 Ken designated himself as
“Settlor” of the Agusta Trust and his sister, Ginger Monsen, as
“Trustee.” The Agusta Trust named a successor trustee but also
provided that if both trustees resigned, the beneficiaries could
appoint a new trustee by majority vote.

¶4 The trust corpus consisted of property “listed in the
schedule annexed hereto.” 4 The Agusta Trust also provided that
“Settlor reserves the right to . . . add to the principal” and that
“any property so added shall be held, administered, and
distributed under the terms of this agreement.” Two pieces of real
property were subsequently transferred to the Agusta Trust—or
so it seems. First, a lot in Emigration Canyon (Emigration Lot) was
deeded to “GINGER MONSON, TRUSTEE OF THE AUGUSTA
NATIONAL TRUST,” on August 30, 1995. (Emphases added.)
Second, a house in Draper (Draper House) was deeded to the
“AGUSTA NATIONAL TRUST #1, GINGER MONSEN,
TRUSTEE,” on January 16, 1998. (Emphases added.) We note the
spelling and nomenclature differences between the two
conveyance documents: (1) the spelling of “Monson” for the
Emigration Lot versus “Monsen” for the Draper House, (2) the

3. The Appellees note, “Ken was a very avid golfer and would
name things after famous golf courses, including St. Andrews and
Augusta National. Ken was also notorious for his poor spelling.”
Having said this, the reader should be aware that the two names
(“Agusta National Trust #1” and “Augusta National Trust”) used
for the trust are important in this opinion. Because of the unique
relevance of Ken’s poor spelling to the matters in this case, when
we quote his writings, we have purposely not corrected the
spelling or grammar.

4. The record does not contain the original schedule or indicate if
there was one.

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spelling of “Augusta” for the Emigration Lot versus “Agusta” for
the Draper House, and (3) the inclusion of “#1” on the conveyance
of the Draper House versus its absence on the Emigration Lot’s
conveyance.

¶5 We recite other relevant provisions of the Agusta Trust:

This trust shall be irrevocable. Settlor shall not have
any right to amend or otherwise alter or revoke this
trust in any manner whatsoever or to alter or divest
the interests of or change the beneficiaries, or vest
the power to terminate or amend this trust in any
other person.

....

During the lifetime of Settlor or Settlor’s wife,
M. SUE WEEKS, Trustee shall pay to or for the
benefit of Settlor, Settlor’s wife, or Settlor’s children
as much of the net income and principal of the trust
as Trustee deems necessary for their health,
support, and maintenance.

....

Upon the death of Settlor and Settlor’s wife,
Trustee shall distribute the entire remaining
principal of the trust . . . [t]o each living child of
Settlor [in equal shares].

(Emphases added.) The Agusta Trust identified by name Ken’s
three then-born children (namely, Michael, Jessica, and Missy). It
also stated that the terms “child” and “children” included “any
children which are born to Settlor or adopted by Settlor
subsequent to the date of execution of this trust agreement.”
However, the Agusta Trust made no mention of what might
happen to the identity of “Settlor’s wife” in the event of divorce.

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The only future provision it had with regard to “Settlor’s wife”
concerns what happens upon her death, as recounted above.

Divorce and Remarriage

¶6 Ken and Sue divorced on October 8, 1999. The divorce
decree is significant in this appeal for how it divided interest in
the Draper House and the Emigration Lot. The decree stated,

The property of the parties is awarded as follows with
the award of each party to be free of any claim of the
other except as expressly provided:

a. [Ken] is awarded the interest of the parties
in the [Draper House] . . . .

b. [Ken] is awarded the Emigration [L]ot,
subject to any and all liability thereon.[5]

(Emphases added.) Notably, the divorce decree never mentioned
the Agusta Trust (or any other trust). And neither the Agusta
Trust nor its trustee, Ginger, was a party to the divorce. 6

5. The decree also addressed the division of other real and
personal property and assets not relevant to this appeal.

6. In a declaration dated July 1, 2020, Sue stated that amendment
of the Agusta Trust was never discussed during the divorce
proceedings—nor was the existence of any other trust—and that
she had “no intent to amend [the Agusta Trust], affect the
children’s interests therein, or alter the beneficiaries thereof
through the divorce proceedings and the Decree of Divorce.”

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¶7 The next day, Ken married Michele Weeks, and the couple
resided in the Draper House. They eventually had two children
together.7

2006 Instruction

¶8 On September 28, 2006, Ken executed a one-page
document (2006 Instruction), which we recite here:

Grantor of
Augusta National Trust
[Street address of Draper House]
9/28/2006

Instructions for Trustee Ginger Monsen

This document will serve as a legal document to
clarify any previous instructions that are now void
due to changes in my life. I now have six children,
[the children are named, along with their ages]. The
above children are all my natural living children
and become the beneficiaries of the assets of
Augusta National Trust. The Trust has two main
assets, these are:

• [Draper House]
• [Emigration Lot]

It is my wishes and instructions to do the following
with these assets, my wife Michele Martin Weeks
has the right to live in the [Draper House], for up to
5 years after my death. All contents of the house are
my wife’s property. At that time the house should
be sold and the proceeds should be divided between

7. All of Ken’s children, including those he had with Michele, have
now reached the age of majority.

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my six children. Each one can take the money if they
are of legal age, a child whom is under age will have
their money put into an interest baring trust account
. . . . It is very important to stay within my guidelines
of placing the money into trust accounts where each
underage child has the money waiting for them as
they grow to legal adults. It is not possible to use the
money as a means to care for the child, this money
is for there use as they see fit when they turn 18. The
[Emigration Lot] is given to my wife Michele Martin
Weeks for her to own and live, build, sell or do as
she wishes. As the Grantor of this trust listed above,
these are now the instructions to adhere to by the
trustee Ginger Monsen.

The document was notarized and signed by Ken as “Grantor” and
Ginger as “Trustee.”

2012 Email

¶9 In an email dated June 5, 2012, Ken, who was apparently
going on vacation, wrote to his son, Michael, that the Draper
House and Emigration Lot “are in the Augusta National trust,
beneficiaries are my six children equally.” The email went on to
state, “Ginger is the trustee of the Augusta Trust, However if I or
Michele become deceased, please show Ginger this email, because
now you will make all decisions to any of my assets or Michele’s
for all living children of Ken Weeks.” 8

2017 Letter

¶10 On September 15, 2017, Ken delivered a handwritten letter
(2017 Letter), transcribed here, to Michael:

8. The email addressed other financial concerns not relevant here.

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Michael Gray Weeks

Pleas take these instructions + follow through the
owneship + Request.

– [Draper House] is in: Augusta National Trust –
Free And clear title – leans have been satisfied + are
in side Desk filing cabinet.

– [Emigration Lot] – Free + clear + leans are satisfied
in Desk filing cabinet.

[Identification of other assets not at issue here]

Please follow these instructions—

Ken signed and dated the letter.

Ken’s Death and Subsequent Lawsuit

¶11 Ken died unexpectedly on January 16, 2018. Michele and
their two children continued to reside in the Draper House.
Ginger stated that Michele approached her and “asserted that she
and her sons could remain in the Draper [House] for five years
and that she would receive the Emigration [Lot].” Ginger also
reported that Michele pressured her to deed the Draper House to
her and that Michele wanted the Agusta Trust to pay taxes, fees,
and maintenance costs on the Draper House. Ginger resigned as
Trustee of the Agusta Trust in September 2018, and the children
of Ken and Sue elected Michael to serve as the new trustee. Given
the cost of maintenance and repair for the Draper House, “it was
determined that the best course of action was for the [Agusta]
Trust to sell the Draper [House] and distribute the proceeds to the
six children of Ken.”

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¶12 Michele refused to vacate the property. And in February
2019, she commenced the present action, stating seven claims for
relief:

1. Declaratory judgment that a second trust called the “Augusta
National Trust” (Second Trust9) had “a separate legal
existence” from the Agusta Trust, that the Emigration Lot was
the property of the Second Trust, and that Michele was
entitled to ownership of the Emigration Lot;

2. Declaratory judgment that Ken—as a result of the divorce
decree—took title to the Draper House (and the Emigration
Lot to the extent that it was held in the Agusta Trust) from the
Agusta Trust, that Michele was entitled to a five-year tenancy
(or equitable interest) in the Draper House, and that Michele
was entitled to ownership of (or equitable interest in) the
Emigration Lot;

3. Declaratory judgment that the Agusta Trust was made
revocable upon entry of the divorce decree and that Michele
was entitled to a five-year tenancy in the Draper House and
ownership of the Emigration Lot;

4. Declaratory judgment that entry of the divorce decree
modified the Agusta Trust to remove Sue as “Settlor’s wife”
and substitute her with Michele;

9. Michele initially referred to this second trust as the “Augusta
Trust” in her complaint, but later filings clarify its name to be the
“Augusta National Trust,” apparently to match the spelling used
in the conveyance of the Emigration Lot, the 2006 Instruction, and
the 2012 Email. To address the possible confusion that might arise
from similarities in spelling, we use the appositive “Second Trust”
for the Augusta National Trust.

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5. Declaratory relief that Michael was not the trustee of the
Second Trust and that Ginger was the trustee of the Second
Trust;

6. An order removing Michael as trustee of the Agusta Trust
owing to his purported breach of fiduciary duties; and

7. An order enjoining the sale of the Draper House or the
Emigration Lot.

¶13 In articulating these claims for relief—in particular the
breach of the fiduciary duty claim—Michele stated that Michael
(1) refused to recognize the existence of two trusts; (2) regarded
the Draper House and the Emigration Lot as assets of the Agusta
Trust; (3) refused to recognize Michele as a beneficiary of the
Agusta Trust; (4) refused to acknowledge that the 2006 Instruction
constituted the Second Trust agreement and that it was binding
on him and the Agusta Trust; (5) maintained the Agusta Trust was
irrevocable, notwithstanding the effects of the divorce decree to
divest Sue of her interest in its properties; (6) maintained that the
Agusta Trust could evict Michele and her children; and
(7) maintained that he had the authority to sell the Draper House
and the Emigration Lot on behalf of the Agusta Trust. Michele
alleged that Michael breached his fiduciary duties by taking
actions based on these positions since doing so would serve his
pecuniary interest by entitling him to “immediate payment of his
distributive share” of the Agusta Trust.

¶14 In their answer to Michele’s claims, Michael, Jessica, Missy,
Natalie, and Ginger (collectively, the Appellees) filed
counterclaims against Michele. First, they asserted that Michele
was in unlawful detainer of the Draper House because the Agusta
Trust owned the property, Michele was a tenant at will, and she
had failed to vacate the property after a five-day notice to quit

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tenancy. 10 Second, the Appellees sought recovery for waste,
alleging that Michele had “committed acts of destruction, misuse,
alteration, [or] neglect” on the Draper House during her tenancy.

¶15 The Appellees subsequently filed a motion for partial
summary judgment, seeking judgment against Michele on all her
claims and in favor of their unlawful detainer claim.

¶16 As to Michele’s claims, the Appellees argued that “the
undisputed material facts” demonstrated that there was only a
single trust, namely the Agusta Trust, and that it owned the
Draper House and the Emigration Lot. Further, because the
Agusta Trust was irrevocable, the Appellees asserted that Ken’s
attempt to modify it via the 2006 Instruction was “ineffective.”
Concerning Michele’s sixth claim for breach of fiduciary duty, the
Appellees argued that Michele could not prevail because she did
not disclose “an expert to establish the standard of care.”

¶17 The Appellees also argued that because the Agusta Trust
owned the Draper House and because Michele remained there
after receiving notice to vacate, the Appellees were “entitled to
judgment as a matter of law on their unlawful detainer claim and
damages” based on the uncontested lost rental value they had
provided.11

¶18 In opposing the Appellees’ motion for partial summary
judgment, Michele asserted that summary judgment was

10. The notice to quit tenancy was served on March 1, 2019.
However, Michele remained in the house through December
2020.

11. The Appellees had provided expert testimony that the fair
market rental value of the Draper House was $125 per day
accruing from March 7, 2019, until Michele vacated the property.
They asked for treble damages and attorney fees. Michele
disclosed no expert on rental value.

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inappropriate because there was sufficient evidence of the Second
Trust existing as a “revocable trust separate and apart from” the
Agusta Trust, creating a genuine issue of material fact. As
evidence of the existence of the Second Trust, Michele pointed to
the deed conveying the Emigration Lot to the “Augusta National
Trust,” which she identifies as the Second Trust, and the 2006
Instruction directing the “disposition of assets in” that same trust.
Michele also offered her own testimony, presented by way of her
declaration (Declaration), as evidence of her claim:

Over the course of our marriage, [Ken] and I had
numerous conversations regarding his estate plans
and the [Second Trust].

In case something happened to [Ken], he
showed me where he kept the instrument for [the
Second Trust], in the file folder on the left-hand side
of his desk.

During our marriage, I read the [Second
Trust] instrument. While I cannot recall every term
contained therein, I recall that it granted me a five-
year tenancy at the [Draper House] and ownership
of [the Emigration Lot].

....

Shortly after [Ken’s] death on January 16,
2018, Trustee of the [Agusta Trust] Ginger Monsen
represented to me that, in accordance with [Ken’s]
wishes, she knew that my children and I had five
years to live in the [Draper House] and that I would
receive the Emigration [Lot].

In reliance on [Ginger’s] representations to
me, and the fact that [Ginger] had never before
challenged my right to live in the [Draper House] or

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In re Agusta National Trust #1

own the Emigration [Lot], I continued to reside in
the [Draper House] and pay for the maintenance of
the [Draper House] and Emigration [Lot].

....

After [Ken’s] death, I looked in the file folder
on the left-hand side of [Ken’s] desk to retrieve the
[Second Trust] instrument. Many documents were
missing, including [the Second Trust]. I filed a police
report that Michael Weeks stole trust documents.

I have not located the [Second Trust]
instrument since [Ken’s] death.

(Numbering omitted.)

¶19 In addition, Michele argued that summary judgment was
inappropriate because there was sufficient evidence to create an
issue of fact that the divorce decree awarded Ken fee simple title
to the Draper House, thus removing it from the Agusta Trust. She
pointed to the 2006 Instruction as moving the Draper House to the
Second Trust and granting her a five-year tenancy to the property.
Alternatively, Michele argued that the Appellees were equitably
estopped from enforcing the terms of the Agusta Trust because
she had “reasonably relied on [the Appellees’] years of inaction in
challenging the disposition of property” in the divorce decree and
the 2006 Instruction.

¶20 Michele further argued that the divorce decree modified
the Agusta Trust to be at least partially revocable and to replace
Sue with Michele as “Settlor’s wife.” Michele also reasserted her
entitlement to injunctive relief to remove Michael as trustee of the
Agusta Trust because his breaches were “egregious” so as not to
require expert testimony. Finally, Michele argued that summary
judgment was inappropriate on the Appellees’ unlawful detainer

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claim because she had a right to reside in the Draper House for
five years after Ken’s death.

¶21 The district court granted Appellees’ motion for partial
summary judgment.

¶22 First, the district court ruled that Michele “failed to present
any relevant, admissible evidence to support the establishment”
of the Second Trust or of Ken’s “intent to create” the Second Trust.
The court explained that the formation of a valid trust requires
(1) the intent of the settlor to create a trust, (2) a clear specification
and setting aside of the trust property, and (3) an adequately clear
articulation of the terms such that a court would be able to enforce
the trustee’s duties. See Sundquist v. Sundquist, 639 P.2d 181, 183–
84 (Utah 1981). From this foundation, the court noted that there
was no writing to satisfy “the requirement to constitute a trust
other than the document creating” the Agusta Trust. The court
explained that it could not read Ken’s writings (namely, the 2006
Instruction and the 2017 Letter) as evidence of the Second Trust
or an intent to create the Second Trust because they did not
contain language evidencing the creation of a trust. And the court
determined that the Declaration consisted of “self-serving and
inadmissible statements regarding the existence of a second
trust,” noting,

Though Michele by [her] Declaration asserts that a
second trust was created and that she saw a second
trust document, she cannot offer evidence of its
terms and conditions. The only terms she offers are
identical to those contained in the [2006 Instruction].
Much of her Declaration includes statements
allegedly made to her by Ken over a number of
years which this Court finds are not admissible as
evidence to support her contention.

¶23 Second, the district court ruled that the Agusta Trust was
“irrevocable and could not be amended or altered by Ken,” even

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if he attempted to do so in the 2006 Instruction. The court
explained that the 2006 Instruction failed to modify the Agusta
Trust because, under Utah law, an irrevocable trust cannot be
modified absent the consent of all the beneficiaries. See Utah Code
§ 75-7-411(1). 12

¶24 Third, the court determined that the divorce decree did not
terminate the Agusta Trust or modify it to make it a revocable
trust. The court explained that the divorce court had jurisdiction
only over the property owned by Sue and Ken. And because both
properties had been conveyed to the Agusta Trust, the court
concluded that the divorce decree limited itself to the “possessory
interest” the parties had in those properties.

¶25 Fourth, the court ruled that Michele’s equitable estoppel
claim regarding a five-year tenancy in the Draper House failed
because Michele had not shown how the Agusta Trust was bound
by the 2006 Instruction or the 2017 Letter. Further, the court
explained that Michele “never set forth the specific facts affiliated
with the alleged statement, admission, act, or failure to act by the
Trustee of [the Agusta Trust], or how said conduct was
inconsistent with a claim later asserted.”

¶26 Fifth, the court ruled that Michele’s claim of breach of
fiduciary duty failed as a matter of law because Michele had not
designated an expert regarding the standard of care Michael
owed.

¶27 Lastly, the court ruled that because it was undisputed that
Michele had failed to vacate the Draper House upon notice, the
Appellees were entitled to judgment on their unlawful detainer
claim. However, because there were “allegations from both
parties regarding monies paid for mortgage and maintenance

12. An irrevocable trust can be modified judicially under limited
circumstances not relevant here. See Utah Code § 75-1-411(5).

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costs as well as the alleged waste” that had not been resolved, the
court reserved the issue of damages for a future proceeding.

¶28 Before the trial on damages, the Appellees filed a motion
asking the court to prohibit Michele “from presenting at trial
evidence regarding payments made by non-parties to this action
and payments made outside the limitations period.” The
Appellees asserted that Michele had disclosed that she would
seek a judgment for mortgage payments and other costs totaling
over $300,000 that she had paid related to the Draper House.
These payments were made before Ken’s death—between 2007
and 2015—by various limited liability companies. In response,
Michele asserted that she was “entitled to recover all of her
contributions to the [Draper House] as offset, whether through
her name or through the name of a company she owns,” and that
she was “entitled to present evidence of payments made by
entities she owns and controls.” She argued that she was “seeking
to establish that her companies [were] an alter ego to prevent an
inequitable windfall recovery” by the Appellees. In the
alternative, Michele argued that if she was prohibited “from
presenting evidence of offset payments made by her alter ego
companies,” under rule 19 of the Utah Rules of Civil Procedure,
the companies should be joined so they could “pursue the offset
payments themselves.” The district court denied the Appellees’
motion and allowed Michele to present alter ego evidence in
support of potential offset payments.

¶29 In the bench trial on damages, the district court granted the
Appellees’ motion for judgment as a matter of law. Among other
findings of fact, the district court entered the following: Ken had
taken out two mortgages on the Draper House; the Agusta Trust
did not receive the proceeds of, or receive any benefit from, these
loans, rather they were used by Ken; the Agusta Trust never paid
the mortgage or other liabilities for the Draper House or the
Emigration Lot, rather these payments were made by Ken and
Michele, neither of whom paid rent to live in the Draper House;
Ken gave Michele $2.5 million, which she used to establish three

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single-member limited liability companies; and Michele routinely
used these companies’ bank accounts to pay her mortgage, tax,
utility, repair, personal, and living expenses.

¶30 Based on these facts, the district court ruled that Michele’s
alter ego claim failed as a matter of law under the two-prong test
articulated in Norman v. Murray First Thrift & Loan Co., 596 P.2d
1028 (Utah 1979):

[I]n order to disregard the corporate entity, there
must be a concurrence of two circumstances:
(1) there must be such unity of interest and
ownership that the separate personalities of the
corporation and the individual no longer exist, viz.,
the corporation is, in fact, the alter ego of one or a
few individuals; and (2) the observance of the
corporate form would sanction a fraud, promote
injustice, or an inequitable result would follow.

Id. at 1030.

¶31 While there was ample evidence that Michele’s association
with the three companies satisfied the first prong of the test, the
court concluded that Michele had failed on the second prong
because she could not demonstrate that “observance of the
corporate form would sanction a fraud, promote injustice, or an
inequitable result would follow.” See id.

¶32 Michele had contended that the Appellees would be
unjustly enriched by the observance of the corporate form because
they would receive the benefit of her paying for taxes and repairs
to the properties. The district court rejected this argument by
noting that it was “not enough that a benefit was conferred on the
[Appellees], rather, the enrichment to the [Appellees] must be
unjust in that [they] received a true windfall or ‘something for
nothing.’” (Quoting Richards v. Brown, 2009 UT App 315, ¶ 29, 222
P.3d 69, aff’d, 2012 UT 14, 274 P.3d 911.) The district court

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explained that money from the mortgages “in no way benefitted”
the Agusta Trust because the money was used by Ken to repay
debts he incurred “for his benefit.” The court observed that, if
anything, the “funds borrowed by Ken” constituted a “debt or
liability” on the Agusta Trust. And with regard to monies paid by
Michele or her alter ego companies, the court concluded,

[Michele] and her family received a benefit from the
funds she expended on the [Agusta Trust’s]
properties. They lived in the Draper [House] and
enjoyed the benefit of the residence for more than
twenty years. The facts presented here indicate that
[Michele] paid the mortgage debt, taxes, and
upkeep on the property in exchange for the benefit
of the use of the property. There was no evidence
presented which would allow this Court to
conclude that the amounts paid by [Michele]
exceeded the benefit she received from use of the
Draper [House]. While [Michele] presented some
evidence of repairs made to the home, no evidence
was presented indicating that these repairs
increased the value of the home. If [Michele] had not
resided in the Draper [House], she would have
incurred living expenses to live elsewhere.

¶33 Based on this analysis, the court concluded that Michele
“failed to show that the [Agusta Trust] was unjustly enriched by
the amounts she paid while living in the Draper [House] and
therefore she [could not] meet the second prong of the alter ego
test and [was] not entitled to claim the amounts at issue here as a
setoff against the [Appellees’] damages associated with their
Unlawful Detainer claim.” A few months later, the district court
entered a judgment against Michele for damages, interest, and
attorney fees in the amount of $465,643.66.

¶34 Michele appeals.

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ISSUES AND STANDARDS OF REVIEW

¶35 Michele first contends that the district court erred in
granting summary judgment in favor of the Appellees against her
claim that the divorce decree (1) modified the Agusta Trust to
make her the “Settlor’s wife” and (2) served to otherwise modify
the Agusta Trust. “We review the district court’s grant of
summary judgment for correctness and take the facts and any
inferences to be drawn therefrom in the light most favorable to
the nonmoving party.” Dahl v. Dahl, 2015 UT 79, ¶ 15, 459 P.3d 276
(cleaned up).

¶36 Michele next asserts that the district court erred in its
summary judgment ruling when it concluded that Michele’s
interest in the Draper House was not established by estoppel. We
review this issue for correctness. See id.

¶37 Michele’s third claim is that the district court erred in
ruling that she did not present admissible evidence of the
existence of the Second Trust. A district court’s grant of summary
judgment is reviewed for correctness. See id. We review “legal
questions underlying the admissibility of evidence” for
correctness, and we review a “court’s decision to admit or exclude
evidence” for abuse of discretion. See State v. Griffin, 2016 UT 33,
¶ 14, 384 P.3d 186 (cleaned up).

¶38 Michele next argues that the district court erred in
dismissing her breach of fiduciary duty claim for lack of expert
testimony. In a summary judgment context, a “district court’s
determination that an expert was required to establish the
standard of care” is reviewed “for correctness, granting no
deference to the district court’s legal conclusions.” United Fire
Group v. Staker & Parson Cos., 2014 UT App 170, ¶ 7, 332 P.3d 394
(cleaned up).

¶39 Michele’s last claim is that the district court erred in
barring her offset claims based on its conclusion that she failed to

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show how the Agusta Trust was unjustly enriched by her
payments. “When reviewing a bench trial for sufficiency of the
evidence, we must sustain the district court’s judgment unless it
is against the clear weight of the evidence, or if we otherwise reach
a definite and firm conviction that a mistake has been made.” State
v. Charles, 2020 UT App 154, ¶ 8, 477 P.3d 492 (cleaned up).

ANALYSIS

I. The Modification of the Agusta Trust

¶40 Michele argues that the district court erred in determining
that the divorce decree did not (1) establish Michele as “Settlor’s
wife” under the terms of the Agusta Trust or (2) otherwise modify
the Agusta Trust.

A. Michele as “Settlor’s wife”

¶41 Michele, citing Dahl v. Dahl, 2015 UT 79, 459 P.3d 276,
contends that because Sue was “only identified in her capacity as
‘Settlor’s wife’ and in no other context,” Sue’s “beneficiary status
as ‘wife’ terminated” with the divorce decree. See id. ¶ 34
(“Because Ms. Dahl is named as a beneficiary only in her capacity
as Dr. Dahl’s spouse, her beneficiary status terminated with the
couple’s divorce.”). Michele further asserts that even though the
divorce decree “removed reference” to Sue, “it did not remove
reference to ‘Settlor’s wife’ from the [Agusta] Trust.” Michele
contends that this term “remained unaffected by the divorce.” She
also argues that “following [Ken’s] marriage to Michele, she
became ‘Settlor’s wife’ as a matter of law . . . and thereby became
a beneficiary” of the Agusta Trust. Thus, Michele maintains that
the “court erred by failing and refusing to acknowledge Michele’s
position as ‘Settlor’s wife’ and beneficiary of” the Agusta Trust.

¶42 “We employ familiar principles of contract interpretation
when construing trust instruments.” Id. ¶ 29. And “when

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interpreting a trust, a court first looks to the trust’s four corners to
determine the parties’ intentions, which are controlling.” Smith v.
Smith, 2017 UT App 40, ¶ 12, 392 P.3d 985 (cleaned up), cert. denied,
398 P.3d 54 (Utah 2017). Moreover, courts “consider each trust
provision in relation to all of the others, with a view toward giving
effect to all and ignoring none.” Id. ¶ 14 (cleaned up).

¶43 Under these principles, Michele’s contention that her
marriage to Ken following his divorce from Sue established her as
“Settlor’s wife” finds little support. The express terms of the
Agusta Trust specifically identified Sue as “Settlor’s wife,” stating
that “[d]uring the lifetime of Settlor or Settlor’s wife, M. SUE
WEEKS, Trustee shall pay to or for the benefit of Settlor, Settlor’s
wife, or Settlor’s children as much of the net income and principal
of the trust as Trustee deems necessary for their health, support,
and maintenance.” Apart from this appositive, the trust
instrument does not further address the identity of “Settlor’s
wife.” In contrast to the treatment of the term “Settlor’s Wife,”
elsewhere in the trust instrument, Ken did show that he
contemplated possible changes to those identified by more
general terms. When discussing the terms “child” or “children,”
Ken identified by name the three children he then had. But he also
included a provision that the terms would include any children
born to or adopted by him after the trust instrument was
executed. This provision for changes to the number of children
shows that Ken certainly contemplated possible changes to those
identified by general terms, necessitated by unforeseen
circumstances. It follows that if Ken had intended the substitution
of another individual for Sue as “Settlor’s wife” in the event of
divorce and remarriage, he would have included a provision
similar to what he had for a change in children to cover such a
contingency.

¶44 Furthermore, replacing Sue with Michele as “Settlor’s
wife” would have required alteration of the trust. But the divorce
decree made no such attempt to alter the Agusta Trust, and we
decline Michele’s invitation to read it as implicitly doing so. At

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most, the divorce decree served to deprive Sue of any possessory
interest she had in the two properties. But that is as far as it went.
It did not somehow replace Michele for Sue, especially given the
Agusta Trust’s express identification of Sue as “Settlor’s wife.”
Assuming a trust can be modified by way of a decree—a shaky
premise as we explain—to do so, at a minimum, requires the
divorce decree to purport that it was so modifying an irrevocable
trust. It did not.

B. Modification of the Trust

¶45 Michele next argues that the divorce decree modified or
terminated the Agusta Trust as to the ownership of the Draper
House and the Emigration Lot. Michele asserts it was
“undisputed” that Ken and Sue “understood that the deeds to
these properties were held in trust and they stipulated to the
[divorce decree,] which distributed” the Draper House and the
Emigration Lot to Ken. In other words, Michele claims that Ken
and Sue “knew that they were modifying the trust holding the
properties because they declared the properties to be marital
assets and divided them amongst themselves.” We disagree. Not
only did Ken and Sue lack the ability to divide ownership of the
two properties belonging to an irrevocable trust, but it is also far
from clear that they ever attempted to do so.

¶46 As an initial matter, we observe the obvious—the Agusta
Trust was irrevocable. And “akin to assets owned by a
corporation, limited liability company, or partnership, the
individual assets owned by an irrevocable trust are ordinarily
third-party property which cannot be divided upon divorce.”
Nelson v. Nelson, 206 So. 3d 818, 822 (Fla. Dist. Ct. App. 2016)
(cleaned up); see also Wilburn v. Wilburn, 743 S.E.2d 734, 742 (S.C.
2013) (“[An irrevocable] trust corpus is not the property of either
spouse and thus cannot be marital property . . . .”); Brett R. Turner,
Division of Third-Party Property in Divorce Cases, 18 J. Am. Acad.
Matrim. Laws. 375, 393–94 (2003) [hereinafter Third-Party
Property] (“If a trust is irrevocable, then it is not materially

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different from a corporation. It can own property in its own name,
and its existence cannot be terminated by anything short of an
agreement among all beneficiaries. Thus, assets held by
irrevocable trusts are not divisible property for purposes of
divorce.”). Put simply, no matter what Sue and Ken may have
been thinking about dividing the ownership of the two properties,
they could not divide property that they did not own. To use the
proverbial law school metaphor of property rights comprising a
“bundle of sticks,” Sue and Ken could divide only the sticks they
actually held, and the right-of-ownership stick was not among
them because it belonged to the Agusta Trust.

¶47 Moreover, we are not persuaded by Michele’s line of
reasoning for the simple reason that the divorce decree did not
purport or attempt to modify, amend, or terminate the Agusta
Trust. Instead, the divorce decree addressed only Ken’s and Sue’s
possessory interest in the properties, not the ownership of the
properties. There is no indication that the Agusta Trust
participated in the divorce action. Indeed, the divorce decree
makes no mention of the Agusta Trust (or any other trust) or its
trustee. Thus, what was subject to division in the divorce
proceeding was the life interest of Ken and Sue in the property.
And this is exactly what the divorce court divided (i.e., not the
ownership of the two properties but the parties’ interest in the
property held by the Agusta Trust). By its own terms, the divorce
decree limited itself to awarding the “property of the parties.” The
property of the parties—at least insofar as the Draper House and
the Emigration Lot were concerned—was only Ken’s and Sue’s
possessory interest in using the properties. Notably, the divorce
decree said nothing about awarding ownership of or title to the
Agusta Trust’s property. Indeed, the divorce decree awarded Ken
the Emigration Lot, “subject to any liability thereon,” which could
obviously be read to include the liability or limitation created by
the Agusta Trust’s ownership of the Emigration Lot. And with
regard to the Draper House, the decree explicitly awarded Ken
only the “interest of the parties” in that property.

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¶48 The divorce court did not—and really could not—address
the ownership of the properties because those properties were
owned by a third party—the Agusta Trust—that was not a party
to the divorce. See Utah Code § 30-3-5(2) (“When a decree of
divorce is rendered, the court may include in the decree of divorce
equitable orders relating to the children, property, debts or
obligations, and parties.”). “Courts can generally make a legally
binding adjudication only between the parties actually joined in
the action.” Hiltsley v. Ryder, 738 P.2d 1024, 1025 (Utah 1987). In
other words, “if property does not belong to either spouse, then it
is not subject to division in a divorce case. Third-party property is
not separate property of either spouse.” Vanderlugt v. Vanderlugt,
429 P.3d 1269, 1273 (N.M. Ct. App. 2018) (cleaned up); see also
Guagenti v. Guagenti, 90 N.E.3d 297, 315 (Ohio Ct. App. 2017)
(“[A]n irrevocable trust . . . is an independent third-party entity[,]
and . . . assets held by such a trust are not property owned by
either spouse, but rather property owned by a third party, namely
the trust itself and as such cannot be subject to equitable division
in a divorce.”); Seggelke v. Seggelke, 319 S.W.3d 461, 467 (Mo. Ct.
App. 2010) (explaining that when a trust, rather than either of the
divorcing spouses, holds title to an account, a “trial court does not
have authority to award the actual account” to one of the spouses
or “apportion the actual account between” the spouses); Third-
Party Property at 378 (stating that the “general rule regarding
third-party property,” such as that owned by an irrevocable trust,
“is simple: property owned by third parties cannot be divided
upon divorce” and that “[s]ince property owned by third persons
has not been acquired by a spouse, it falls outside the definition
of marital property”).

¶49 Michele also argues that the divorce decree served as
consent to modify the Agusta Trust. She observes that under the
Utah Code, a “noncharitable, irrevocable trust may be modified
or terminated upon consent of the settlor and all beneficiaries,
even if the modification or termination is inconsistent with a
material purpose of the trust.” See Utah Code § 75-7-411(1).

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Michele further notes that the “stipulated [divorce decree] was the
culmination of a ‘Settlement Agreement’ and was the agreement”
of Ken and Sue, which she asserts fulfilled the statutory
requirement of providing the “consent of the settlor and all
beneficiaries,” see id., necessary to modify the Agusta Trust. Since
Sue was a beneficiary, and Ken and Sue together were guardians
of their minor children, Michele asserts that the interests of all the
beneficiaries were represented.

¶50 Michele’s consent argument is unpersuasive for the same
reason that her other modification argument falls flat. See supra
¶ 47. There simply is no indication that the divorce decree
contemplated dividing the corpus of the Agusta Trust. As
mentioned, the divorce decree does not refer to any trust or
trustee. Nor does it touch on providing “consent” to modify any
property arrangement. 13 If Ken and Sue intended the divorce
decree to modify the terms of an irrevocable trust, we think there
would have been at least some mention of it. There are several
explanations for the absence of mention of consent. Perhaps Ken
and Sue forgot about the Agusta Trust at the time of the divorce.
Or maybe they were aware of it and chose to ignore its
restrictions. In either case, we are reticent to infer from this silence
implied consent to modify an irrevocable trust. A more likely
explanation is that Ken and Sue were aware of the trust, acted in
conformity with its provisions, and carefully chose language that
limited the disposition of the two properties to the possessory
interest they enjoyed.

¶51 In sum, we detect no error in the district court’s summary
judgment determination that the divorce decree did not modify
the terms of the Agusta Trust.

13. The divorce decree mentions consent only once, stating that
Ken “consented to entry” of the decree on Sue’s complaint for
divorce.

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II. Estoppel

¶52 Michele argues that the district court erred in entering
summary judgment against her claim that the Agusta Trust was
estopped from repudiating the terms of the 2006 Instruction.
Specifically, she asserts that the 2006 Instruction provided her “a
five-year tenancy” in the Draper House and “title to” the
Emigration Lot.

¶53 A claim of equitable estoppel requires proof of three
elements: “first, a statement, admission, act, or failure to act by
one party inconsistent with a claim later asserted; next, reasonable
action or inaction by the other party taken or not taken on the
basis of the first party’s statement, admission, act or failure to act;
and, third, injury to the second party that would result from
allowing the first party to contradict or repudiate such statement,
admission, act, or failure to act.” Youngblood v. Auto-Owners Ins.
Co., 2007 UT 28, ¶ 14, 158 P.3d 1088 (cleaned up).

¶54 Michele claims that she has established all three elements.
First, she asserts that Ginger’s execution of the 2006 Instruction
was a “statement, admission, [or] act” that was “later repudiated
by delivering to Michele a five-day Notice to Quit,” thus creating
“a claim inconsistent with Michele’s five-year tenancy.” Next,
Michele argues that she relied on the 2006 Instruction and
Ginger’s “representations to her after [Ken’s] death” to stay in the
Draper House. And lastly, she claims injury by the Agusta Trust’s
“repudiation of the express terms” of the 2006 Instruction as
evidenced by the judgment “against her for unlawful detainer.”
Michele’s equitable estoppel claim fails on the first two prongs.

¶55 First, the 2006 Instruction was the action of Ken, not
Ginger. 14 Even though Ginger was aware of the contents of the

14. Although Ken was the Settlor of the Agusta Trust, he could
not modify it, because it was irrevocable. Nor could Ken act on
(continued…)

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2006 Instruction—there is no dispute that she signed it—it’s
nevertheless hard to see how the 2006 Instruction falls under
Ginger’s power as trustee when she was not the one to have given
it. The 2006 Instruction clearly states that Ken wrote the document
in his capacity as grantor and that it comprised “the instructions
to adhere to by the trustee.” The most that can be made of the 2006
Instruction—at least insofar as Ginger is concerned—is that she
knew of Ken’s wishes. It offers no evidence that she acted in a
manner that was inconsistent with a later act.

¶56 Next—and more lethal to Michele’s estoppel claim—is that
it is difficult to conclude that Michele reasonably acted on Ginger’s
alleged representation. We note again that the Agusta Trust was
irrevocable and could only “be modified or terminated upon
consent of the settlor and all beneficiaries.” See Utah Code § 75-7-
411. While the 2006 Instruction certainly provided the consent of
Ken as settlor, it in no way provided the consent of “all
beneficiaries”—most notably two of the children from the first
marriage who were adults by this time. And the express terms of
the Agusta Trust allowed Ginger to “transfer, sell, exchange,
partition, lease, mortgage, create a security interest in, pledge,

behalf of the Agusta Trust, because he was not the trustee. See In
re Hoopiiaina Trust, 2006 UT 53, ¶ 30, 144 P.3d 1129 (“It is well
settled that [an irrevocable] trust is a form of ownership in which
the legal title to property is vested in a trustee, who has equitable
duties to hold and manage it for the benefit of the beneficiaries.
Once the settlor has created the trust he is no longer the owner of
the trust property and has only such ability to deal with it as is
expressly reserved to him in the trust instrument.” (cleaned up));
see also id. ¶ 31 (“Because [the settlor] had no ownership interest
in the trust assets and no power as trustee to dispose of the trust
assets, he had no ability to revoke the trusts or transfer title to the
trust properties via his will.”); Clayton v. Behle, 565 P.2d 1132, 1133
(Utah 1977) (explaining that where a settlor “has not reserved a
power of revocation,” a settlor “cannot revoke [a] trust” (cleaned
up)).

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give options upon, or otherwise dispose of any property” held in
the Agusta Trust only for “cash or other consideration.” But
giving effect to the 2006 Instruction would materially alter the
beneficiaries’ interests (namely, by removing a trust asset and
giving another away for five years). In other words, Ginger could
not have acted pursuant to the terms of the Agusta Trust if she
had followed the 2006 Instruction because the Agusta Trust
would not receive any consideration for the transfer of its assets.
Thus, given (1) the statutory provision against modification
absent the consent of the beneficiaries and (2) the robust language
of the Agusta Trust limiting the trustee’s authority, we fail to see
how Michele’s actions in reliance on the 2006 Instruction meet the
threshold of reasonability.

¶57 For these reasons, we detect no error in the district court’s
conclusion that the Agusta Trust was not equitably estopped from
denying Michele’s five-year tenancy claim or her claim to title in
the Emigration Lot.15

III. Evidence of the Second Trust

¶58 Michele claims that Ken created two trusts and that the
court erred in granting summary judgment when it “found that
Michele failed to present admissible evidence to support the
creation and existence of [the Second Trust], held that the deeds
to the properties were ‘clear,’ dismissed as a typographical error
any differences in names on the deeds, and [characterized] the
[2006 Instruction and 2017 Letter] as inconsistent with [the Second
Trust].” Moreover, Michele contends that the “court
inappropriately weighed the evidence, failed to draw all

15. Michele also asks us to vacate the judgment against her for
unlawful detainer. But given our resolution of the estoppel
issue—along with the others—Michele did not have a valid claim
to the five-year tenancy at issue here. Accordingly, the unlawful
detainer judgment of the district court was proper.

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reasonable inferences in favor of Michele, the non-moving party,
and improperly excluded Michele’s declaration testimony.”

¶59 “We will affirm a grant of summary judgment only if there
are no disputed issues of material fact and, with the facts and all
reasonable inferences viewed in the light most favorable to the
nonmoving party, the moving party is entitled to judgment as a
matter of law.” Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 24,
390 P.3d 314 (cleaned up). But not just any disputed issue
precludes the grant of summary judgment; rather there must be a
“genuine issue of material fact” in play. Id. ¶ 19. “The word
‘genuine’ indicates that a district court is not required to draw
every possible inference of fact, no matter how remote or
improbable, in favor of the nonmoving party. Instead, it is
required to draw all reasonable inferences in favor of the
nonmoving party.” IHC Health Services, Inc. v. D & K Mgmt., Inc.,
2008 UT 73, ¶ 19, 196 P.3d 588. Thus,

while an appellant who is challenging a summary
judgment entered against it is entitled to all
favorable inferences, it is not entitled to build a case
on the gossamer threads of whimsy, speculation
and conjecture. In essence, the parties must submit
admissible evidence to present an issue of material
fact, and unsubstantiated conclusions and opinions
are inadmissible.

JENCO LC v. Perkins Coie LLP, 2016 UT App 140, ¶ 15, 378 P.3d 131
(cleaned up).

¶60 And to establish a valid trust, (1) “the settlor must have an
intent to create a presently enforceable trust,” (2) “the trust
property must be clearly specified and set aside,” and (3) “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.” Sundquist v. Sundquist, 639 P.2d 181, 183–84 (Utah
1981); see also Utah Code § 75-7-401(1). Considering this standard

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in the summary judgment context—even in light of all the
evidence that Michele offers and affording her the reasonable
inferences therefrom—there is not a genuine issue of material fact
as to whether Ken established the Second Trust.

A. Michele’s Declaration

¶61 “[B]are contentions, unsupported by any specification of
facts in support thereof, raise no material questions of fact as will
preclude the entry of summary judgment.” Massey v. Utah Power
& Light, 609 P.2d 937, 938 (Utah 1980). Michele’s Declaration
largely consists of such bare contentions lacking factual support.
Accordingly, it doesn’t create a dispute of facts necessary to
support Michele’s claim that Ken established the Second Trust. In
her Declaration, Michele alleges that Ken created a trust
instrument for the Second Trust, which he kept in a desk drawer.
As to the terms of the Second Trust, she “recall[ed] that it granted
[her] a five-year tenancy at the [Draper House] and ownership of
[the Emigration Lot].” These are the only terms that Michele
recalls being in the Second Trust. 16

¶62 Michele’s statements in her Declaration regarding the
Second Trust appear to be at odds with the assertions in her
complaint. In her complaint (filed around February 2019), Michele
explicitly stated that the 2006 Instruction created the Second
Trust: “On or about September 28, 2006, [Ken] executed a trust
agreement for the [Second Trust] entitled ‘Instructions for Trustee
Ginger Monsen.’” Then she went on to assert that other than the
2006 Instruction, “no document purporting to govern the
administration of the [Second] Trust has been discovered, and on
information and belief, no other such document exists.” But in her
later Declaration (made in June 2020), she seems to suggest that

16. These terms are substantially identical to the terms contained
in the 2006 Instruction, which also attempted to grant a five-year
tenancy in the Draper House and ownership of the Emigration Lot
to Michele.

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there may have been an instrument for the Second Trust separate
from the 2006 Instruction but that Michael had stolen that
instrument shortly after Ken’s death. 17 It is well settled that “a
party’s admission of fact in a pleading is normally treated as a
conclusive admission that the party is not later permitted to
contradict, even with evidence from other sources.” Luna v. Luna,
2020 UT 63, ¶ 19, 474 P.3d 966 (cleaned up); see also Baldwin v.
Vantage Corp., 676 P.2d 413, 415 (Utah 1984) (“An admission of fact
in a pleading is a judicial admission and is normally conclusive
on the party making it.”); Kranendonk v. Gregory & Swapp, PLLC,
2014 UT App 36, ¶ 23, 320 P.3d 689 (“An admission in a pleading
is not generally viewed merely as the attorney’s retelling of the
client’s out-of-court statement; rather, it is a judicial admission
that is normally conclusive on the party making it.” (cleaned up)),
cert. denied, 329 P.3d 36 (Utah 2014); Saghian v. Shemuelian, 835 F.
App’x 351, 353 (10th Cir. 2020) (“Even if the post-pleading
evidence conflicts with the evidence in the pleadings, admissions
in the pleadings are binding on the parties and may support
summary judgment against the party making such admissions.”
(cleaned up)). Given Michele’s explicit assertions of fact in her
complaint that the 2006 Instruction was the only “document
purporting to govern the administration” of the Second Trust, the
district court properly concluded that Michele’s seemingly
inconsistent statements in her Declaration were insufficient to
create a genuine issue of material fact as to whether the Second
Trust instrument existed.

B. 2006 Instruction

¶63 The 2006 Instruction does not create a genuine issue of
material fact due to the irrevocability of the Agusta Trust. In short,

17. Michele is clear in her briefing on appeal that she now
contends the 2006 Instruction and the alleged instrument for the
Second Trust are different documents: “While the 2006
[Instruction] was not, on its own, ‘a second trust,’ it was evidence
of a second trust.”

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Ken had no power to bequeath property that he did not own. The
2006 Instruction was at most an ineffective attempt to modify an
irrevocable trust, not evidence of the Second Trust. Any inference
that the 2006 Instruction was evidence of the Second Trust would
be unreasonable because, at the time it was executed, the property
it attempted to transfer was already held by the irrevocable
Agusta Trust. See In re Hoopiiaina Trust, 2006 UT 53, ¶ 31, 144 P.3d
1129 (explaining that upon creation of an irrevocable trust, “the
beneficiaries [are] . . . vested with equitable title to the trust
properties,” depriving the settlor of an “ownership interest in the
trust assets,” “power as trustee to dispose of the trust assets,” and
the “ability to revoke the trust[] or transfer title to the trust
properties”). 18

C. 2017 Letter

¶64 The 2017 Letter does not create a genuine issue of material
fact for the same reasons as the 2006 Instruction: insofar as it
attempts to transfer the properties out of the Agusta Trust, it is
ineffective.

D. Deed to the Emigration Lot

¶65 The deed to the Emigration Lot naming the alleged Second
Trust creates no genuine issue of material fact. While it is true that
it transferred the Emigration Lot to the “Augusta National Trust,”
which Michele contends is actually the Second Trust, there is no
reason to conclude that the spelling is anything more than a
scrivener’s error. (Emphasis added.) Indeed, Ginger submitted
testimony, via a declaration, that Ken had “asked [her] to serve as

18. This same reasoning is applicable to defeating Michele’s claim
asserted in the Declaration that there was an (allegedly stolen)
instrument for the Second Trust. Even if this elusive document
could somehow be produced, it would still suffer from the same
infirmity as the 2006 Instruction, namely, attempting to distribute
property already held in an irrevocable trust.

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Trustee of only a single trust, and never asked [her to] serve as
Trustee of a second or additional trust.” And the fact remains that
he spelled her last name in two different ways, also using two
different spellings for the trust in question. “The misnomer of [an
entity] generally will not be treated by the courts as material, if
the identity of the [entity] is reasonably clear or can be ascertained
by sufficient evidence.” Kelly v. Hard Money Funding, Inc., 2004 UT
App 44, ¶ 22, 87 P.3d 734 (cleaned up). This leads to the inevitable
conclusion that the two spellings of the trust name do not create a
genuine issue of material fact as to whether Ken actually
established two trusts; rather it points to the reasonable
conclusion—supported by Ginger serving as trustee of only one
trust—that Ken was an admittedly poor speller who favored the
phonetic method and who established only the Agusta Trust.

¶66 Accordingly, we conclude that the district court did not err
in granting summary judgment in favor of the Appellees
regarding the existence of the Second Trust.

IV. Fiduciary Duty

¶67 Michele argues that the district court erred in granting
summary judgment against her claim of breach of fiduciary duty.
The district court ruled that the “fiduciary duty at issue” in this
case required expert testimony because the duties in question “are
beyond the common understanding of an ordinary juror.” But
Michele asserts that her claim was not so complex that the court,
in the context of a bench trial, would need expert testimony to
understand it. More specifically, she argues that while some
aspects of trust administration require expert testimony, the
district court erred in taking a “broad brush approach” to require
expert testimony to determine whether Michael violated his duty
to act in accordance with the terms of the Agusta Trust. As
Michele explains in her brief, she “does not dispute that expert
testimony may be [required] to establish Michael’s duties to
administer [the Agusta Trust] ‘in the interests of the beneficiaries,’
‘impartially,’ or as a ‘prudent person’ would. However, Michael’s

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In re Agusta National Trust #1

discrete duty to act ‘in accordance with [the] terms’ of [the Agusta
Trust] does not require expert testimony.”

¶68 We affirm the district court’s determination in this matter,
but we do so on a different basis. Bailey v. Bayles, 2002 UT 58, ¶ 10,
52 P.3d 1158 (“It is well settled that an appellate court may affirm
the judgment appealed from 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 trial court to be
the basis of its ruling or action . . . .” (cleaned up)). Upholding the
determination that Michael did not breach his fiduciary duties is
the logical consequence of our resolution of other matters in this
case. The reasoning is simple and concise. Michele’s breach of
fiduciary duty claim was based entirely on the presumption of the
existence of the Second Trust or, alternatively, that the Agusta
Trust was modified by Ken’s writings. See supra ¶ 13. As we have
rejected both claims, the contention that Michael breached his
fiduciary duties as trustee of the Agusta Trust fails for lack of
foundation.

¶69 Moreover—and apart from the existence of the Second
Trust or the modification of the Agusta Trust—Michele teed up
the matter in a somewhat conflated manner in her complaint.
There she asserted that

Michael owes fiduciary duties to administer [the
Agusta Trust] in accordance with its terms and
purposes and the interests of the beneficiaries, to
administer [the Agusta Trust] in accordance with
Utah law, to administer [the Agusta Trust] solely in
the interests of the beneficiaries, to act impartially in
investing, managing, and distributing the property
held in [the Agusta Trust], and to administer [the
Agusta Trust] as a prudent person would.

¶70 Thus, the very duties that Michele concedes on appeal may
require expert testimony belong to the same constellation of

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duties (1) that she identified in her complaint and (2) for which
she offered no expert testimony. In other words, acting in
accordance with the terms of the Agusta Trust included the duties
she admits fall under the expert-testimony umbrella. The
distinction Michele now attempts to draw on appeal between
generally acting in accordance with the terms of the Agusta Trust
(not requiring expert testimony) and the other duties she
identified in her complaint (likely requiring expert testimony)
escapes our comprehension. These other duties constitute what it
means to act in accordance with the Agusta Trust. At the very
least, the difference is too subtle to be of significance in this
context, where Michele represented in her complaint that
Michael’s duty to act in accordance with the terms of the Agusta
Trust was inextricably bound up with the duties to administer the
Agusta Trust in the interests of the beneficiaries, impartially, and
as a prudent person.

¶71 Our caselaw says the same. “Fiduciary duties may
sometimes, but will not always, implicate the type of technical
matters that would lie beyond the capacity of an ordinary juror.”
Gables at Sterling Village Homeowners Ass’n v. Castlewood-Sterling
Village I, LLC, 2018 UT 04, ¶ 60, 417 P.3d 95. However, “expert
testimony will be required in the breach of fiduciary duty context
to explain standard of care and breach issues where the average
person has little understanding of the duties owed by particular
trades or professions.” Id.

¶72 Given the centrality of the Second Trust (or modification of
the Agusta Trust) to Michele’s breach of fiduciary duty claim and
the manner in which she framed her claim—along with our
caselaw—the district court properly granted summary judgment
on this point.

V. Offset Claims

¶73 On appeal, Michele argues that the court erred in refusing
to join her companies to the action. She asserts that making her

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prove alter ego should have been avoided because it was complex
and prejudicial to her. And even though the court found Michele
and her companies were alter egos, Michele says it erred when it
“refused to find” that the Agusta Trust “had been unjustly
enriched” by Michele’s payments merely because Michele had
lived in the Draper House “rent-free” from the time of her
marriage to Ken. Michele argues, at the very least, that she should
receive an offset of $40,000 she (or her alter ego companies) paid
for expenses on the Emigration Lot because it was clear that she
received no benefit from that property.

¶74 As a threshold matter, Michele’s joinder argument lacks
merit because of the manner in which she presented her overall
offset claim to the district court. Indeed, Michele advanced the
joinder argument as an alternative “if the [court was] inclined to
prohibit [her] from presenting evidence of offset payment made
by her alter ego companies.” Subsequently, the court chose to just
accept the evidence of payments under the heading of alter ego,
making Michele’s joinder request moot. Michele has no room to
now complain that the district court acted as she explicitly
advocated; in other words, any error in the court’s approach to
the joinder request was invited by Michele. See State v. Winfield,
2006 UT 4, ¶ 15, 128 P.3d 1171 (“Our invited error doctrine arises
from the principle that a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error.”(cleaned up)).

¶75 Going to the substance of Michele’s contention, the district
court correctly concluded that Michele failed to show that the
Agusta Trust was unjustly enriched. There was no unjust
enrichment because the Agusta Trust did not receive any benefit
from payments made by Michele or her alter egos. Rather,
Michele was the one who received the benefit of living in the
Draper House; her payments benefitted her.

¶76 Just because Michele disagrees with the district court’s
evaluation of the evidence on whether the Agusta Trust benefited

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from her payments does not mean the district court’s ruling was
in error. Indeed, the “fact that there was evidence contradicting
the court’s finding does not make the finding clearly erroneous
when sufficient evidence has been submitted that supports the
court’s finding.” Seamons v. Wiser, 2020 UT App 33, ¶ 23, 462 P.3d
387; see also Nebeker v. Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053
(“The pill that is hard for many appellants to swallow is that if
there is evidence supporting a finding, absent a legal problem—a
‘fatal flaw’—with that evidence, the finding will stand, even
though there is ample record evidence that would have supported
contrary findings.” (cleaned up)). And here, there was ample
evidence supporting the court’s finding that Michele—not the
Agusta Trust—was the beneficiary of her payments. Michele’s
payments were for mortgages on the properties that had
previously been lien-free. The money from these mortgages
benefited Ken and Michele during their marriage. Michele was
simply paying for a benefit that she had received. This means that
the Agusta Trust didn’t benefit from Michele’s payments since it
didn’t receive the advantage of the money from the mortgages. In
essence, all Michele did was pay back what she and Ken had
borrowed from the Agusta Trust by taking out mortgages on its
corpus.

¶77 So, while the Agusta Trust certainly benefited from having
the mortgages paid off, that benefit was not a windfall amounting
to unjust enrichment since it just gave back what had been taken.
Instead of benefiting the Agusta Trust in any real sense, the
payments Michele made merely eliminated the encumbrances
Ken and Michele had imposed on its corpus. “It is not enough that
a benefit was conferred on the defendant, rather, the enrichment
to the defendant must be unjust in that the defendant received a
true windfall or something for nothing.” Richards v. Brown, 2009
UT App 315, ¶ 29, 222 P.3d 69 (cleaned up), aff’d, 2012 UT 14, 274
P.3d 911. The Agusta Trust did not get “something for nothing”
from Michele’s payments; rather, it got back what it had lost.

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¶78 Regarding the $40,000 for the Emigration Lot, Michele’s
claim fails for inadequate briefing. She has not pointed to
anywhere in the record that shows the nature of these payments,
when they were made, what they paid for, or how they benefitted
the Agusta Trust. The burden is on Michele to show how the
Agusta Trust was unjustly enriched, and she has not carried her
burden on this point. See Kimball v. Kimball, 2009 UT App 233, ¶ 34,
217 P.3d 733 (explaining that the burden is on the claimant to
prove each element of unjust enrichment).

¶79 In sum, we detect no error in the district court’s denial of
the offset because the facts supported its ruling that the Agusta
Trust did not receive a windfall from Michele’s payments.

VI. Attorney Fees

¶80 The Appellees, having received attorney fees as the
prevailing party below, are entitled to their appellate fees as the
prevailing party on appeal. See Dillon v. Southern Mgmt. Corp. Ret.
Trust, 2014 UT 14, ¶ 61, 326 P.3d 656 (“When a party is entitled to
attorney fees below and prevails on appeal, that party is also
entitled to fees reasonably incurred on appeal.” (cleaned up)). On
this point, we remand the matter for a determination of those fees.

CONCLUSION

¶81 The district court properly granted the Appellees’ motion
for summary judgment on each of Michele’s claims. And it also
properly denied Michele’s offset claim.

¶82 Affirmed and attorney fees awarded.

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