IN THE UTAH COURT OF APPEALS - assetprotectionbook.com · KIM DAHL, ) ) Plaintiffi' Appellant ) ) w. ) ) C. ROBERT DAHL, as Investment ) Trustee of the DAHL FAMILY ) IRREVOCABLE TRUST

IN THE UTAH COURT OF APPEALS

KIM DAHL,

Plaintiff! Appellant

vs.

C. ROBERT DAHL, as Investment Trustee of the DAHL FAMILY IRREVOCABLE TRUST (10/23/02); CHARLESF.DAHL;MARLETTE ENTERPRlSES, L.c. and Does 1 thru 10.

Defendants/Appellee

) ) ) ) ) ) ) ) ) ) ) ) ) )

Appellate Case No. 20111077 District Court No. 090402989

BRIEF OF APPELLEE

APPEAL FROM THE FOURTH JUDICIAL DISTRlCT COURT, UTAH COUNTY, STATE OF UTAH, PROVO DMSION

JUDGE LYNN W. DAVIS PRESIDING

Steve S. Christensen, Esq. CHRISTENSEN CORBETT, PLLC 136 East South Temple, Suite 1400 Salt Lake City, Utah 84114-3156 Attorneys for Appellant

Rosemond G. Blakelock, Esq. #6183 BLAKELOCK & PETERSON 1832 North 1120 West Provo, Utah 84604-1179 Telephone: (801) 356-1720 [email protected] Attorneys for Appellees

ORAL ARGUMENT REQUESTED

)

TABLE OF CONTENTS

JURISDICTION OF THE COURT ........................................... 1

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES ................ 1

STATEMENT OF THE CASE ............................................... 1

STATEMENT OF FACTS RELEVANT TO ISSUES ON APPEAL ............... 4

A. Procedural Facts .................................................................................... 4

B. Underlying Facts Relevant to Plaintiff's Action ........•........... 6

SUMMARY OF TIlE ARGUMENT ............................................................................. 9

ARGUMENT ........................................ ' ..................................................................... 10

POINT I: THE TRIAL COURT'S ORDER IS NOT CONTRADICTORY. 10

POINTll: THE DAHL FAMILY IRREVOCABLE TRUST IS, IN FACT, IRREVOCABLE. .. ............................................................................................ 12

A. The Law Relating to the Interpretation of the Terms of Trust Instruments ............................................... 13

B. The Trust by its terms is Irrevocable .......................... 15

C. Appellant's Arguments Relating to Sections 4.3 and 5.1 of the Trust were not Preserved in the Trial Court and are Without a Legal Basis. . .................................................. 20

D. The Sole Beneficiary Rule does not Apply to this Case. . ........ 22

POINT ill: THE APPELLANT HAS NO ENFORCEABLE INTEREST IN THE TRUST. .. ................................................................................................... 25

POINT IV: UTAH'S PUBLIC POLICY DOES NOT DICTATE CONSTRUCTION OF THE TRUST AS REVOCABLE ••.......••..•. 28

A. The Issue is Being Raised for the First Time on Appeal and on That

1

Basis Should be Rejected. ............................... 28

B. The Argument Requires, at its Foundation, Factual Predicates that do not Exist in the Record. . ................................... 32

C. There is no Underlying Inequity that Would Invoke Public Policy Considerations. . .......................................... 35

POINT V: THE LOWER COURT'S DECISION AS TO THE CONTROLLING LAW WAS NOT ERROR. . .•....•.•..•..•.•••....... 36

POINT VI: JUDGE DA VIS DID NOT COMMIT ERROR IN REFUSING TO ALLOW ANY FURTHER DISCOVERY ......••.•..•••......... 39

A. The Alter-Ego Claim was neither Preserved in the Lower Court Or used as a Basis to Seek the Right to Further Discovery. . .... 39

B. The Claim that the Trust was Null and Void did not Equate to an Alter-Ego Claim. . ........................................ 43

CONCLUSION ." ...................................................... 46

CERTIFICATION OF COMPLIANCE WITH RULE 24(f)(1) ...........•..... 47

CERTIFICATE OF SERVICE ...............•..........•...•........... 47

11

TABLE OF AUTHORITIES

CASES

Accord United States v. Healthwin-Midtown Convalescent Hosp. and Rehabilitation Center, Inc., 511 F.Supp. 416 (C.D.Calif.1981)...................................................... 41

Atkins v. Atkins, 279 Mass. 1, 7, 180 N.E. 613 (1932) ............................................... 23

Atlas Corp. v. Clovis National Bank, 737 P.2d 225, 229 (Utah 1987) ...................... 14

Aquagen Int'!, Inc. v. Cal rae Trust, 972 Pold 411, 413 (Utah 1998)................ .... ............... 34

Badger v. Brooklyn Canal Co., 966 P.2d 844,847 (Utah 1998) ............................... 30

Balian v. Balian, 179 Cal.AppAth 1505, 102 Cal.Rptr.3d 470 (Ca1.App. 2 Dist.,2009) ................................................................... 22

Bellamy v. Langfitt, 86 So.3d 1170 (Fla.App. 3 Dist .. ,2012) ....................................... 22

Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995) ............................................................................... 34

Church o/Little Flower v. US Bank, 2012 IL App (4th) 120266, --- N.E.2d ----,2012 WL 5386150 (Ill.App. 4 Dist.,2012) ....................................... 22

Colman v. Colman, 743 P.2d 782 (Utah App.,1987) ............................................ .41,42

Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434,444 (Mo. App. W.D. 2004) ...... 14

j Crisman v. Hallows, 999 P.2d 1249 (Utah App.,2000) .............................................. 37

Cunningham v. Bright, 228 Mass. 385, 389, 117 N.E. 909 (1917).......................... 23

Dansie v. City o/Herriman, 134 P.3d 1139 (Utah 2006) ......................................... 30

DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, , 12, 34 P.3d 785................... 32

Engineering Assocs. v. Irving Place Assocs., 622 P.2d 784, 787 (Utah 1980) ......... 32

111

Estate o/Pettit v. Levine, 657 S.W.2d 636, 643 (Mo. App. E.D. 1983 ................. 14, 15

Ferris v. Jennings, 595 P.2d 857, 859 (Utah 1979) ................................................... .32

Franklin Fin. v. New Empire Dev. Co., 659P.2d 1040,1044 (Utah 1983) ............... 30

Gasser v. Horne, 557 P.2d 154, 155 (Utah 1976) ...................................................... 34

Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985) ......................... 32

Groberg v. Housing Opportunities, Inc. 68 P,3d 1015 (Utah App.,2003) ........... .21, 22

Gudmundson v. Del Ozone, 2010 UT 33, 140, 232 P.3d 1059................................ 42

Hartman v. Potter, 596 P.2d 653 (Utah, 1979) .......................................................... 13

Healthcare Servs. Group Inc. v. Utah Dep't a/Health, 40 P.3d 591 (Utah 2002) ............... 34

In re Carl McDonald Revocable Trust Dated October 1, 1979,942 S.W.2d 926,

931 (Mo. App. S.D. 1997) ......................................................................................... 14

In re Dodge Trust, 121 Mich.App 527, 539; 330 NW2d 72 (1982) ........................... 13

In re Estate o/Beesley, 883 P.2d 1343, 1351 (Utah 1994) ........................................ 32

In re Estate o/Sims, 918 P.2d 132, 134 n. 2 (Utah Ct. App.l996) ............................... 30

In re Kostin Estate, 278 Mich.App 47,53; 748 NW2d 583 (2008) ........................... 13

In re Szwyd, 346 B.R. 290, 293 (Bankr.D.Mass.2006),

affd, 370 B.R. 882 (lst Cir. BAP 2007) .................................................................... 23

Innerlight, Inc. v. Matrix Group, LLC, 2009 UT 31.. .......................................... 19, 38

James v. Preston, 746 P.2nd 799,801 (Utah Ct. App. 1987).................................. 30

IV

Jacob v. Bezzant, 2009 UT 37, , 34,212 P.3d 535 ................................................... 30

J.R. Stone Co. v. Keate, 576 P.2d 1285, 1288 (Utah 1978) ....................................... 33

Kimball v. Campbell, 699 P.2d 714, 716 (Utah 1985) ....................................................... 14

Kline v. Utah Dep't o/Health, 776 P.2d 57,61 (Utah App. 1989) ............................. 15

Langley v. Conlan, 212 Mass. 135, 138, 98 N.E. 1064 (1912) .................................. 23

Marra v. Papandreou, 216 F.3d 1119, 1123,342 U.S.

App. D~C. 276 (D.C. ·Cir. 2000) ........................................................................... 20, 38

Nielsen v .. Brocksmith, 323 Mont. 98, 99 P.3d 181, 184 (2004)................................ 31

Nw. Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 376 (7th Cir. 1990) ...................... .20, 38

Norman v. Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah 1979) ........ .41

Ockey v. Lehmer, 2008 UT 37, 189 P.3d 51. ............................................................. 44

Ong Int'! (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447,455 n. 31 (Utah 1993) ..... 30

.Patterson v. Patterson, 266 P.3d 828 (Utah,2011) ......................................... .29, 30, 31

Peirce v. Peirce, 994 P.2d 193 (Utah,2000) ................................................................ 32

Ron Case Roofing and Asphalt Paving, Inc. v. Blomquist,

773 P.2d 1382 (Utah,1989) ......................................................................................... 14

Stanger v. Sentinel Sec. Lifo Ins. Co., 669 P.2d 1201, 1205 (Utah 1983) ................... 14

State v. Bozung, 2011 UT 2,'7 n. 4,245 P.3d 739 .............................................. 21,22

v

State v. Cruz, 2005 UT 45, ~ 33, 122 P.3d 543........................................................ 30

Stipe v. First Nat'l Bank of Portland, 208 Ore. 251, 268, 301 P.2d 175 (1956) .. .18,19

Tort Claimants Comm. v. Roman Catholic Archbishop,

B.R. 686; 46 Bankr. Ct. Dec. 230 (2006) ................................................................... 18

Tschaggeny v. Millbank Ins. Co, 163 P.3rd 613,615 (Utah 2007) ........................... 31

Turtle Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 672 (Utah 1982) ............... 31

Vittands v. Sudduth, 49 Mass.App.Ct. 401, 409, 730 N.E.2d 325 (2000) ................ 23

Yazdani v. Access ATM, 941 A.2d 429, 432 (D.C. 2008) ................................ 19, 20,38

BOOKS

Black's Law Dictionary 1516 (7th ed. 1999) ................................................................... 16

The Law of Trusts and Trustees § 992 (Rev. 2d ed. 2005), George G. Bogart, et al.... ........... ............. ............... ...... ................... ............ ............... 19

Trusts § 341, at 524 (4th ed.1987), Scott .................................................................. 23

Williston on Contracts, § 4.21, at 644 (4th ed.) ...................................................................... 32

STATUTES

Nev. Rev. Stat.§ 163.560 ................................................................................................. 20, 38

Utah Code Ann.§ 75-1-201................................................................................................. 13

VI

Utah Code Ann.§ 75-7 -1 03................................................................................................. 16

Utah Code Ann.§ 75-7-111 ................................................................................................... 13

Utah Code Ann. § 75-7-411 ............................................................................................... ~. 17

Utah Code Ann. § 75-7-412 .................................................................................................. 22

Utah Code Ann. § 75-7-414 ................................................................................................. 22

Utah Code Ann. § 75-7-605 ............................................................................................. 18, 26

Utah Code Ann. §78A-4-103(h) ............................................................................................. 1

Utah Code Ann. §78B-2-305.............................................................................................. 44

Utah Code Ann. § 78B-2-307............................................................................................. 45

Utah Code Ann. § 78B-2-309.............................................................................................. 45

Utah Code Ann. § 78B-6-401............................................................................................... 11

RULES

Utah Rules of Civil Procedure 8(a) .................................. n ................................................... 42

Utah Rules of Civil Procedure 56(f) ..................................................................................... 42

VII

ADDENDA

Exhibit A: Order Granting Defendant's Motion for Summary Judgement

Exhibit B: Dahl Family Irrevocable Trust

Exhibit C: Warranty Deed of Vintage Drive Home and Property Into Dahl Family Irrevocable Trust

Exhibit D: Court Docket ofK.im Dahl v. C. Robert Dahl, as Investment Trustee of the Dahl Family Irrevocable Trust, the Dahl Family Irrevocable Trust, Dr. Charles Dahl, et. al., Fourth District Court in and for Utah County, State of Utah, civil number 120400606

Exhibit E: Statutes: Nevada and Utah

viii

IN THE UTAH COURT OF APPEALS

KIM DAHL, ) )

Plaintiffi' Appellant ) )

w. ) )

C. ROBERT DAHL, as Investment ) Trustee of the DAHL FAMILY ) IRREVOCABLE TRUST (10/23/02); ) CHARLES F .DAHL, MARLETTE ) ENTERPRISES, LC and DOES 1 thru ) 10, )

) Defendants/Appellees. )

APPELLEE'S BRIEF

Appellate Case no. 20111077 District Court No. 090402989

JURISDICTION OF THE COURT

The Utah Court of Appeals has appellate jurisdiction in this matter pursuant to the

provisions of Utah Code Annotated 78A-4-103(h) (2009 as Amended).

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

There are no constitutional provisions, statutes or rules whose interpretation is

) determinative or central to the issues on appeaL

STATEMENT OF THE CASE

The Plaintiff: Kim Dahl, in her First Amended Complaint, sought relief based

upon two causes of action. First, the Plaintiff sought declaratory judgment to establish that

she had an interest in the corpus of the Dahl Family Irrevocable Trust (hereinafter

1

"Trust"}. Further, she requested declaratory judgment determining that the Trust was null

and void although the Amended Complaint did not contain a cause of action upon which

the court could declare the Trust as void. In the alternative, the Plaintiff sought a

determination that the Trust was revocable. Finally she requested that the court declare her

a "settlor" of the Trust. In the second cause of action for an accounting, the Plaintiff

sought a review and accounting of the Trust and Marlette Enterprises, L.C. (hereinafter

"Marlette").

The parties conducted discovery over the course of the litigation. Almost from the

outset, the Defendants filed a number of motions to dismiss and for summary judgment that

relied primarily on the fact that the Plaintiffhad voluntarily conveyed the major asset in the

Trust, the Vintage Drive home and property, into the Trust by executing a warranty deed.

Further, the Defendants contended that the Trust, by its terms and as interpreted under the

relevant statutes and case law, was irrevocable. Relying again on the plain language in the

Trust, Defendants argued that the Plaintiff was only a contingent beneficiary under the

terms of the Trust and would only be entitled to such distributions that the Trustee, in his

sole discretion, made to her. Finally, the Defendants contended that the Plaintiff was not

entitled to an accounting from the Trust because she had no interest therein.

The Plaintiff also, in the early stages of the litigation, filed a motion for partial

summary judgment. The Plaintiff contended, in her motion for summary judgment, that the

determination of the core issues regarding the Trust were matters that could be determined

2

by summary judgment.

In an exhaustive decision, the court issued a final ruling granting the Defendants'

motion for summary judgment and denying the Plaintiff s motion for summary judgment.

The trial court's ruling can be broken down as follows: First, the court refused to enter

declaratory judgment because it would not terminate the controversy or resolve the

dispute between the parties. Second, the court granted the Defendants' motion for summary

judgment noting that the Plaintiff had failed to comply with Rule 7(c)(3)(B) of the Utah

Rules of Civil Procedure that required the party opposing summary judgment to controvert

the statement of undisputed facts claimed by the moving party~ Third, the court denied the

Plaintiff s request for additional discovery because the Plaintiff did not file the required

Rule 56(f) affidavit.

Fourth, the court denied the request to declare the Trust null and void based upon

the fact that the Plaintiff had never asserted a legal basis upon which such a determination

could be made. Fifth, the court denied the Plaintiffs request that the Plaintiff be given an

immediate interest in the Trust based upon the clear wording of the Trust that she was only

a contingent beneficiary. Sixth and fmally, the court determined that the Trust was

irrevocable based upon the clear wording of the Trust and interpreting case law.

The lower court did not abuse its discretion in not extending discovery in this case to

allow the Appellant to support an alter-ego claim. The alter ego claim was not preserved

in the lower court and no argument that discovery was needed was ever made in the

3

trial court. Finally, the inclusion in the order that all applicable statutes of limitation

had expired that would support a claim of void ability of the Trust was proper and in

response to issues raised by the parties.

STATEMENT OF FACTS RELEVANT TO ISSUES ON APPEAL

A. Procedural Facts

1. The Complaint was filed on July 3 1, 2009 (R. 1-79). Defendants' Answer was

filed on October 28, 2009 (R. 175-180). The Plaintiff then filed a First Amended

Complaint which added, as a party, Marlette Enterprises, L.C. CR. 181-312). A notice of

withdrawal of First Amended Complaint filed on October 29, 2009 and filing of First

Amended Complaint dated January 25,2010 was filed by the Plaintiff on June 17,2010 CR.

919-1030}.

2. On February 5,2010, the Plaintiff filed a motion for partial summary

judgment. The Plaintiff sought a declaratory judgment that the Trust was null and void; or

a determination that the Trust was revocable and that the Plaintiff was settlor thereof. The

Plaintiff argued that if the Trust was revocable and she was determined to be a settlor of the

Trust, she could revoke the trust and direct the distribution of the assets of the Trust (R.

353-421,473-573). The Plaintiff filed a supplemental statement of facts on April 30, 2010

CR. 808-878).

3. Plaintiff submitted her fIrst request to produce to the Defendants in March 29,

2010 (R. 774-775). Plaintiff responded to the Defendants' fIrst set of interrogatories and

4

request to produce also on March 29,2010 (R 770-771).

4. . The Defendants filed their motion for summary judgment on October 26,2010

CR. 1579-1645). On November 2, 2010, the Defendants filed their memorandum in

opposition to the Plaintiff's motion for partial summary judgment CR. 1665-1796).

5. On November 3, 2010, the Plaintiff filed a motion for continuance of the

Defendants' motion for summary judgment (R. 1797-1849). Plaintiff also filed a motion

for an extension of time to respond to the Defendants' motion for summary judgment (R.

1860-1865). The court granted the Plaintiff's motion for an· extension of time to respond to

the Defendants' motion for summary judgment. The Plaintiff was given until December

15,2010, to file an opposition memorandum. The extension to December 15,2010 was

the relief requested by the Plaintiff(R. 2018-2019).

6. The Plaintiff filed her response to the Defendants' motion for summary

judgment on July 19, 2011 (R. 2400-2574). The Defendants filed their reply memorandum

in support of their motion for summary judgment on August 26, 2011 (R. 2732-2945).

7. On November 1,2011, the court entered its order granting the Defendants~

motion for summary judgment (R. 2716-2732, Addendum, Exhibit "A").

8. The Appellees have attached a copy of the Dahl Family

Irrevocable Trust, created on October 23,2002, hereto CR. 43-65, Addendum, Exhibit

"B").

9. The Appellees have attached a copy of the warranty deed by which the

5

Plaintiff conveyed her interest in the Vintage Drive home and property into the Dahl

Family Irrevocable Trust (R. 41~ Addendum, Exhibit "C").

B. Underlying Facts Relevant to Plaintiff's Action

The following facts are those included in the Defendants' motion for summary

judgment that the Plaintiff did not refute in her response to the Defendants' motion as

found by the trial court.

1. This action has been commenced by the Plaintiff for Declaratory

Judgment and for an Accounting (R. 919-1030, 1579-1645,2717-2732).

2. The gravamen of the action is the Dahl Family Irrevocable Trust (10/23/02),

a copy of which is attached hereto and incorporated herein as Exhibit ~'B." The Trust

declares itself to be an irrevocable Trust and cannot be revoked by the unilateral action of

the settlor. The only rights retained by the Settlor are the rights to alter or amend the terms

and provisions of the Trust as those allowed by statute. ld.

3. The Plaintiff Kim Dahl had nothing to do with the preparation of the Trust, is

not named in the Trust as a settlor, and, did not sign the Trust or any related Trust

documents. Id

4. The Defendant Charles Dahl is the only named settlor of the Trust and is the

only person to sign the Trust as a settlor. Id.

5. The Defendant C. Robert Dahl is the named Investment Trustee of the Trust

and signed the same in that capacity. Lee S. McCullough, ill, is the named Special Trustee

6

and signed the Trust in that capacity. The Nevada State Bank, a Nevada Corporation is the

named Qualified Person Trustee in Section 4.2 of the Trust. Id

6. The only beneficiaries of the Trust are 1) the Defendant Charles Dahl, as

Settlor; 2) Settlor's spouse; 3) the Settlor's issue (Clara Toni Dahl and David Charles Dahl);

and 4) designated charitable or tax-exempt organizations. Id (See Addendum, Exhibit "B"

at Section 1.2).

7. The Plaintiffs status as a spouse of the settlor terminated on July 20, 2010,

upon the entry of the Decree of Divorce in Charles Dahl v. Kim Dahl, Fourth District Court

in and for Utah County" State of Utah, civil no. 064402232. Under the terms of the Decree,

Charles Dahl is the custodial parent of the minor children and would have aright therefore

to exercise any rights of the children with regard to the amendment, alteration, modification

or termination of the Trust. Id

8. The Plaintiff, Kim Dahl, along with the Defendant Charles Dahl, executed a

Warranty Deed on June 20, 2003, conveying the marital home to The Dahl Family

Irrevocable Trust. The Warranty Deed was recorded on June 23,2003, as entry no. 93608,

in the records of the Utah County Recorder. See Addendum, Exhibit "C."

9. The Plaintiff occupied the position, up to the time of the entry of the Decree

of Divorce between her and Dr. Charles Dahl, as a "spouse," a potential and discretionary

beneficiary under the Trust (See Addendum, Exhibit "B," Section 1.2).

10. Any distribution to the Plaintiff, as a spouse of Dr. Dahl, the Settlor, was to

7

be in the sole discretion of the Investment Trustee and Dr. Charles Dahl. Further, even if the

Investment Trustee chose to distribute any monies to the Plaintiff, which he has not, Charles

Dahl, as the named settlor had a right to veto that payment, which he certainly would have

done. Section II of the Trust is entitled ''Disposition During Settlor's Lifetime" and provides

in relevant part, as follows:

During the lifetime of the Settlor, the Investment Trustee shall pay over or apply the net income and principal of the TrustEstate to such extent, including the whole thereof, and in such amounts and proportions, including all to one to the exclusion of others, and at such or times as the Investment Trustee, in the exercise of his sole and absolute discretion shall determine, to or for the benefit ofthe Beneficiaries; provided., however, that during the life of Settlor, at least thirty (30) days prior to making any payment or application of income or principal to any beneficiary other than the Settlor and Settlor may veto ("Veto") any such intended pay by directing the Investment Trustee in writing not to make the payment or application, and, if such Veto is exercised by Settlor, the Investment Trustee shall not make the intended paYment or application to a beneficiary other than the Settlor ....

See Addendum, Exhibit "B

11. At no time during which the Trust has been in existence, has the Investment

Trustee ever determined, in the exercise of his discretion, to distribute funds to the Plaintiff.

Even ifhe had done so, the Defendant Charles Dahl, using his rights under the Trust, would

have vetoed the same (R. 919-1030, 1579-1645,2717-2732).

12. As it relates to the right of the Plaintiff, as a discretionary beneficiary, to an

accounting, Section 5.3.10 of the Trust states, in relevant part, as follows:

Discretion not to inform or account to discretionary beneficiaries. During the shorter ofthe Settlor's lifetime ... the Trustee shall not be required to inform any beneficiary( other than the Settlor) Who is not entitled to a mandatory

8

distribution of income or principal from the trust on an annual or more frequent basis (1) of the trust; (ii) a court in which the trust may be registered; or (iii) the Trustee's name and address. In addition, during the shorter of the Settlor's lifetime. . . the Trustees shall not be required to provide any . beneficiary (other than the Settlor) who is not entitled to a mandatory distribution ofincome and principal from the trust on an annual or more frequent basis with a copy of the terms of the trust and shall not be required to provide a statement of accounts of the trust. (Emphasis added)

See Addendum, Exhibit "B.

SUMMARY OF THE ARGUMENT

The order of the trial court that held that the court was exercising its discretion not to

adjudicate the declaratory judgment claim as it relates to the underlying equities asserted by

the Appellant did not conflict with the remainder of the lower court's order.

The Dahl Family Irrevocable Trust is, by its terms, irrevocable. Both sides in this case

agree that the determination as to the revocability ofthe Trust is a question oflawthat is not

dependent on any disputed facts. Appellees submit that the question as to whether the Trust

should be interpreted as irrevocable should be based upon a determination of the Settlor's

intent and the language contained in the Trust itself. The application of both the law of

Nevada (the choice oflaw state) and the applicable Utah law reveal that the Trust is indeed

irrevocable.

The Appellant's argument that the Trust could be construed as revocable based upon

the sole beneficiary rule should be rejected because the argument was not preserved in the

lower court and because the sole beneficiary rule is not applicable to the facts of this case.

The Appellant was a contingent beneficiary under the terms of the Trust, which right

9

terminated upon her divorce from Dr. Dahl. The Appellant, at present, has no enforceable

interest in the Trust. Any and all claims of the Appellant relating to the Trust ware based

upon the Court determining that she was a settlor of the Trust and that the Trust was

revocable. If the Court upholds the lower court's determination that the trust was

irrevocable, all claims of the Appellant are extinguished.

Utah's public policy does not dictate that the Court construe the Trust as revocable.

The Appellant's argument is based upon the assertion that the Trust was really a post-nuptial

agreement. The argument of Appellant was not preserved in the lower court and not

supported by any facts established in this case.

ARGUMENT

POINT I: THE TRIAL COURT'S ORDER IS NOT CONTRADICTORY.

The Appellant argues that the Order of the trial court granting summary judgment

contains language that is contradicted by other provisions of the same order (Appellant's

Brief, p. 30). The Appellees disagree. The language included in the order that is cited by the

Appellant was language that Appellee's urged the trial court to use.

In the second paragraph of the Order Granting Defendants' Motion for Summary

Judgment, Judge Davis states:

The court notes that the Dahls have been involved in an endless divorce for many years. The claim in this case, which involves, inter alia, the marital home of the parties, should have been resolved in the pending divorce. For reasons totally unclear to this judge; these claims were not adjudicated in the ongoing, pending divorce action. Had Plaintiff sought relief in the divorce action, then the equitable powers of the Court could have applied. Here, no

10

equitable powers can be applied and the Court must rule as a matter of law.

R.2732.

The court then held in Paragraph 6 of its order that "[it] declined to undertake the

seemingly meaningless task of declaring the rights and duties of the parties to [the] action

(R. 2730). The intent of Paragraph 6 was to respond to the ambiguous rhetoric of the

Plaintiff throughout the case~ that she was somehow entitled to the Trust assets because they

were marital property, regardless of what the Trust provided. This notion is expressed in the

Plaintiffs first Amended Complaint (See First Amended Complaint~ paras. 9-16, 35-42).

The Court, as well as the Defendants~ were continually frustrated by the Plaintiff s

claim that somehow the facts relevant in the divorce action were thereby relevant in a case

that revolved around the Trust and the language employed in the Trust document. For

instance, the Plaintiff claimed that the Trust was null and void. However, the Plaintiff never

amended the complaint to include a cause of action, upon which, the court could declare the

trust as null and void, such as fraud or illegality. Nowhere in the Amended Complaint did

the Plaintiff ask for affirmative reliefto nUllify or void the Trust. Plaintiff did not ask for an

order amending or altering the terms of the Trust. The Plaintiff asked for declaratory

judgment and for an accounting. As provided by the Declaratory Judgment Act, U.C.A. 78B-

6-401 (2008 as Amended), the only relief that could be granted by declaratory judgment is

to have the court" ... issue declaratory judgments determining rights, status, and other legal

relations within its respective jurisdiction .... "

11

Therefore, the only relief that could be provided, pursuant to the theories contained

in the pleadings, is a declaration of the Plaintiffs rights under the established terms of the

Trust. The Court could not amend or alter the terms thereof under the scope of the pleadings

in this case.

It was in response to the claims from the divorce action that had no relevance in this

matter, that the court set out the language contained in Paragraphs 2 through 6 of the Order

(R.2730-2731). Judge Davis was simply holding that he would not consider, under the

auspices of a declaratory judgment action, the carry-over equities of the Dahl divorce case.

Judge Davis' order turned out to be prophetic. Before the ink had dried on the order granting

the Defendants' motion for summary judgment in this action, the Plaintiff filed another

action against the Trust and Dr. Dahl employing expanded causes of action to justify setting

aside the Trust based upon the status of the property within the Trust as being marital

property. There are three pending motions to dismiss that have been filed in that action. 1

POINT ll: THE DAHL FAMILY IRREVOCABLE TRUST IS, IN FACT, IRREVOCABLE.

It is interesting to note that the Appellant starts her argument that the Trust is

See, Court Docket of Kim Dahl v. C. Robert Dahl, as Investment Trustee of the Dahl Family Irrevocable Trust, The Dahl Family Irrevocable Trust, Dr. Charles Dahl, et al., Fourth Judicial District Court in and for Utah County, State of Utah, civil no. 120400606 (Addendum, Exhibit D). Appellees submitthatthe Court can take judicial notice of the filing of the Complaint in that case pursuant to Rule 201 of the Utah Rules of Evidence that allows the Court, at any stage ofthe proceeding, to judicially notice facts that "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned .. "

12

revocable by again ttying to characterize the property held in the trust as "marital property"

which characterization is simply irrelevant in determining the revocability of the Trust (See,

Appellant's brief, pp. 31-32). The Appellant argues that the Trust is r.evocable based upon

two theories. The Appellant argues that the "sole beneficiary" theory makes the Trust

revocable and secondly, that enforcing the irrevocability of the Trust would violate Utah's

public policy. Id

A. The Law Relating to the Interpretation of the Terms of Trust Instruments.

Utah Code Annotated 75-7-111 (2004 as Amended) provides that 'Tt]he rules of

construction that apply to the interpretation of and disposition of property by will or other

governing instrument, as defmed in Section 75-1-201, also apply as appropriate to the

interpretation of the terms of a trust and the disposition of the trust property." The cardinal

rule of law and the predominant rule in the construction and interpretation of testamentary

instruments is that the intent of the testator governs. In re Dodge Trust, 121 Mich.App 527,

539; 330 NW2d 72 (1982). In construing the meaning of a trust, the settlor's intent is to be

carried out as nearly as possible. In re Kostin Estate, 278 Mich.App 47, 53; 748 NW2d 583

(2008).

As noted in Hartman v. Potter, 596 P.2d 653 (Utah, 1979), in the context of the

interpretation of deeds, that in " ... the absence of ambiguity, the construction of deeds is a

question of law for the court, and the main object in construing a deed is to ascertain the

intention of the parties, especially that of the grantor. Further, the Court held that deeds are

13

to be construed like other written instruments, and where a deed is plain and unambiguous,

parol evidence is not admissible to vary its terms. The Court in Ron Case Roofing and

Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382 (Utah,1989), noted that the settled rule in

interpreting a contract, is that the court is to fIrst look to the four comers of the agreement

to determine the intentions of the parties. See also, Atlas Corp. v. Clovis National Bank, 737

P .2d 225,229 {Utah 1987); Stanger v. Sentinel Sec. Life Ins. Co., 669 P.2d 1201, 1205 (Utah

1983). The use of extrinsic evidence is permitted only if the document appears to

incompletely express the parties' .agreement or if it is ambiguous in expressing that

agreement. E.g., Atlas Corp., 737 P.2d at 229; Kimballv. Campbell, 699P.2d 714,716 (Utah

1985).

Case law addressing explicitly the interpretation of trusts provides that m[T]he

paramount rule of construction in determining the meaning of a trust provision is that the

grantor's intent is controlling. "'In re Carl McDonaldRevocable TrustDated October 1, 1979,

942 S.W.2d926, 931 (Mo. App. S.D. 1997)(citationomitted). "In determining the intent of

a grantor, courts are to consider the trust instrument as a whole and are not to give any clause

in the trust undue preference." Id. Absent ambiguity, the intent of the settlor is determined

from the four comers of the trust instrument. Commerce Bank, N.A. v. Blasdel, 141 S.W.3d

434,444 (Mo. App. W.D. 2004). "It is [not] this court's function to rewrite a [trust] in order

to effectuate a more equitable distribution or to impart an intent to the testatrix that is not

expressed in the [trust]." 2 Estate ofPettitv. Levine, 657 S.W.2d 636,643 (Mo. App. E.D.

14

1983). See also, Kline v. Utah Dep't of Health~ 776 P.2d 57, 61 (Utah App. 1989).

It is important, in a review of the arguments made by the Appellant, that no

contention has been advanced that the Dahl Family Irrevocable Trust is ambiguous in any

regard. All parties impliedly agree that the issues relating to the interpretation of the

language in the Trust should be resolved by the court from the four comers of the document

without the aid of parol or extrinsic evidence.

Appellees submit that the intention of the Settlor, Dr.. Dahl, is explicitly set forth in

the provisions of the Trust. Dr. Dahl's intent, as Settlor of the Trust, was clearly to execute

an irrevocable trust.

B. The Trust by its terms is Irrevocable.

At the outset, it should be noted that the Appellant concedes that trusts created before

May 1,2004 are presumed irrevocable (See Appellant's brief~ p. 32; Utah Code Annotated

75-7-605). The Trust in this case was originated on October 23,2002. Further, the Trust in

this case clearly purports to be irrevocable (See Addendum, Exhibit "B" Section 5.5, Exhibit

"B"). As noted above, the Appellant has taken the position that the Appellee, Dr. Charles

Dahl, as the trustor and settlor, has, by the language in the Trust, reserved an impermissible

right to alter or amend the terms· of the Trust, and therefore, created a trust that does not

qualify as "irrevocable." In so concluding the Appellant has misinterpreted the clear

language in the Trust.

An "irrevocable trust" is defined as "[a] trust that cannot be terminated by the settlor

15

once it is created." Black's Law Dictionary 1516 (7th ed. 1999). ItIrrevocable" has been

defmed as n[u]nalterable." Id. at 835. An irrevocable trust, by defInition, is not subject to

amendment. On the other hand, a revocable trust is one that is " ... revocable by the settlor

without the consent of the trustee or a person holding an adverse interest. Utah Code

Annotated 75-7-1030) (2004 as Amended).

A simple review of the Trust language reveals that the Appellee~ Dr. Charles Dahl has

no right under the language in the Trust to revoke, amend or alter the same outside of the

power given to every settlor of an irrevocable trust by Utah statute. Further, there is no

language in the Trust document that can reasonably be interpreted as an attempt by the

settlor, to endow himself with impermissible rights with regard to termination, amendment

or alteration of the Trust.

As to the power to alter or amend the Trust, the operative language is found in Section

5.5, which is titled "Trust Irrevocable." The language is as follows:

Trust Irrevocable. The Trust hereby established is irrevocable. Settlor reserves any power whatsoever to alter or amend any of the terms or provisions hereof. (Emphasis added)

Addendum, Exhibit "B."

The language in Section 5.5 does not create any right for Dr. Dahl to unilaterally

amend or alter the terms of the Trust. Rather, the language simply preserves the rights of

every settlor of an irrevocable trust that is granted by statute, to amend, alter or terminate the

16

)

irrevocable trust ifthere is consent from all the beneficiaries. In fact, D.C.A. 75-7-411 (2004

as Amended) specifically sets out the rights of a settlor to revoke or modify an irrevocable

trust. The statute provides:

Modification or termination of noncharitable irrevocable trust by consent. (1) Anoncharitable, 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. . . (2) A noncharitable, irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable, irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust. .. (5) If not all of the beneficiaries consent to a proposed modification or termination of the trust under Subsection (1) or (2), the modification or termination may be approved by the court if the court is satisfied that: (a) if all of the beneficiaries had consented, the trust could have been modified or terminated under this section; and (b) the interests of a beneficiary who does not consent will be adequately protected. (Emphasis added)

Reading the language of the Trust in context, it is clear that the Trust language does

not give any power to the settlor to unilaterally amend, alter or revoke the Trust. Once

Appellee, Dr. Dahl, created and executed the irrevocable trust, any right to unilaterally

revoke, amend or alter the same was extinguished. However, a person creating an

irrevocable trust has the statutory right to terminate,· amend or alter the Trust if he or she

meets the statutory conditions. The language in the Trust simply states that any powers of the

settlor to amend or alter the terms of the Trust that may exist at law or by statute are not

waived or extinguished by the language of the Trust. The Trust language simply facilitates

the right of the Settlor, granted by statute, with the consent of all beneficiaries, to seek

17

modification or termination of the Trust in a court oflaw.

As revealed by the terms of the Trust itself, it was signed on October 23, 2002

(Addendum Exhibit "B"). The trust has been in existence for over ten years. In the entire

period of time, there have been no revisions, amendments, modifications or attempts to

revoke the same. Further, there is no section in the Trust document titled or designated

"revocation," "amendment" or "alteration." The only language that refers to any retention

of any power to amend and modify is under the section entitled "Trust Irrevocable" as set out

above.

Utah Code Annotated 75-7-605 (2004 as Amended) is dispositive of the issue. In

addressing the issue of revocation or amendment of a revocable trust, the statute states:

(l) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This Subsection (1) does not apply to a trust created under an instrument executed before May 1,2004. (Emphasis added)

The caption to the Section 5.5 of the Trust is "Trust Irrevocable." The fITst ofthe two

sentence section states, "[t]he Trust hereby established is irrevocable." Clearly under the

statute, there is no general power to amend, modify or terminate. Further, because Section

5.5 includes only the right to alter or amend and not the right to revoke, it is by definition

irrevocable. In Tort Claimants Comm. v. Roman Catholic Archbishop, B.R. 686; 46 Bankr.

Ct. Dec. 230 (2006), the court interpreting Oregon law stated that the settlor of a trust may

reserve the right to revoke a trust, but if the settlor does not reserve that right, the trust is

irrevocable without the consent of the beneficiaries.ld See also, Stipe v. First Nat'l Bank of

18

Portland, 208 Ore. 251, 268,301 P.2d 175 (1956). The commentators are unanimous in

noting that where there is a question of whether the settlor intended to reserve the right to

revoke, a statement that the trust is irrevocable will control. George G. Bogert, et ai., The

Law of Trusts and Trustees § 992 (Rev. 2d ed. 2005).

It would be the height ofunreasouability to construe a trust that is titled "irrevocable"

and contains. no sections entitled "amendment," "modification" or ~'revocation" to be

revocable. In order to argue their contention that the Trust is revocable, the only sentence

in.the 21 page Trust document that the Appellant can point to in included in a section that

restates that the Trust is irrevocable and is preceded by a sentence that again states that the

Trust is irrevocable.

The most compelling argument however is based upon statute.. Section 5.4.6 of the

Trust (See Addendum, Exhibit ~'B") provides as follows:

Governing Law .. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada .....

Addendum, Exhibit "B."

As noted by the Court in Innerlight, Inc. v. Matrix Group, LLC, 2009 UT 31, choice

of law and choice of forum provisions contained in contracts and legal documents are

enforceable. Other jurisdictions have made similar determinations regarding the

enforceability offorum selection and choice oflaw provisions within contracts. See Yazdani

19

v. Access ATM, 941 A.2d 429, 432 (D.C. 2008) (enforcing a forum-selection clause

"notwithstanding appellee's disavowal ofthe remainder of the contract"); see also Marra v.

Papandreou, 216 F.3d 1119, 1123,342 U.s. App. D.C. 276 (D.C. Cir. 2000) ("A forum-

selection clause is understood not merely as a contract provision, but as a distinct contract

in and of itself--that is, an agreement between the parties to settle disputes in a particular

forum--that is separate from the obligations the parties owe to each other under the remainder

of the contract." (citingNw. Nat'l Ins. Co. v. Donovan, 916 F.2d 372,376 (7th Cir. 1990)).

The applicable Nevada statute is dispositive. NRS 163.560 is entitled "Irrevocable

trust not to be construed as revocable." It states, "[i]fthe settlor of any trust specifically

declares in the instrument creating the trust that such trust is irrevocable it shall be

irrevocable for all purposes, even though the settlor is also the beneficiary of such trust."

Clearly, under the applicable law both in Nevada and Utah, the Trust is irrevocable.

It should also be noted that even if the Court does not apply Nevada law, the fact that

the Trust refers to Nevada law and that the language contained therein was chosen based

upon that assumption, certainly merits the interpretation of the Trust language in light ofthe

Nevada law existing when the Trust was prepared and executed.

C. Appellant's Arguments Relating to Sections 4.3 and 5.1 oftbe Trust were not Preserved in tbe Trial Court and are Without a Legal Basis.

The Appellant argues before this Court that in considering whether the Trust is

irrevocable, consideration should be addressed to Sections 4.3 and 5.1 of the Trust (See

20

Appellant's brief, pp. 35-36). Those sections of the Trust and any argument based thereon

have never previously been raised by the Appellant (See, Plaintiff s Memorandum in Support

of Plaintiffs Motion for Partial Summary Judgment, R. 560-562; Plaintiffs Memorandum

in Opposition to Defendants' Motion for Summary Judgment, R. 2554-2558). The law is

clear that the Court will not consider issues raised for the ftrst time on appeal unless the

district court committed plain error or exceptional circumstances exist. State v. Bozung, 2011

UT 2, ~ 7 n. 4, 245 P.3d 739 (internal quotation marks omitted); see also, Groberg v.

Housing Opportunities, Inc. 68 P.3d 1015 (Utah App.,2003).

In her brief, the Appellant argues that Section 4. 3 of the Trust allows for termination

of the Trust. Appellees have reviewed Section 4.3 and find that the argument is simply not

accurate. The Trust provides for the appointment of an Investment Trustee, a Qualifted

Person Trustee and a Special Trustee (See, Addendum, Exhibit ''B,'' sections 4.1, 4.2 and 4.3)

Under the heading of section 4.3, the following language is found:

... Inhislher sole discretion, the Special Trustee may also recommend the termination of this Trust or any trust created herein at any time. If the Trustee and the Settlor (if living) concur with the recommendation of the Special Trustee that the Trust should be terminated, then the assets of the Trust shall be distributed pursuant to Section 5.1.

The Settlor, Dr. Dahl, is not the person who has retained the right to terminate the

Trust. The right to recommend that the Trust be terminated belongs to the Special Trustee,

who is Lee S. McCullough, ill, a practicing attorney in Utah. If Mr. McCullough were to

recommend termination, that recommendation would have to be approved by the Trustee, C.

21

Robert Dahl and the Settlor; Dr. Charles F. Dahl. Only with the recommendation of the

Special Trustee and the concurrence of the Investment Trustee and the Settlor, would the

assets of the Trust be distributed. A trustee always has the power to tenninate a trust if the

purpose of the trust has been frustrated, if the assets of the Trust have diminished to a point

that the Trust is inoperative and for other various reasons.2 See generally, Church o/Little

Flower v. US Bank, 2012 IL App (4th)J20266, --- N.E.2d ----, 2012 WL 5386150 (Ill.App.

4 Dist.,20 12); Bellamy v. Langfitt, 86 So.3d 1170 (Fla.App. 3 Dist.,20 12); Balian v. Balian,

179 Cal.AppAth 1505, 102 Cal.Rptr.3d 470 (Cal.App. 2 Dist.,2009).

D. The Sole Beneficiary Rule does not Apply to this Case.

The entire argument based upon the sole beneficiary rule was not made in the lower

court and was not preserved for this appeal. The law is clear that the Court will not consider

issues raised for the first time on appeal unless the district court committed plain error or

exceptional circumstances exist. State v. Bozung, 2011 UT 2, ~ 7 n. 4, 245 P .3d 739 (internal

quotation marks omitted); see also, Groberg v. Housing Opportunities, Inc. 68 P.3d 1015

(Utah App.,2003). Accordingly, the Court should not address the argument of Appellant

relating to the sole beneficiary rule because, in its entirety, it is being made for the fIrst time

on appeal.

2

In fact, U~C.A. 75-7-412 (2004 as Amended) provides for modification or termination ofa trust because of unanticipated circumstances or inability to administer trust effectively. Further D.C.A. 75-7-414 (2004 as Amended) provided for modification or termination of an uneconomic trust.

22

If for any reason, the Court addressed the issue, the Appellees respond as follows. The

argument of the Appellant attempting to employ the sole beneficiary rule is so strained that

its inapplicability to this case is patently clear. The common law applicable to trusts is that

"one cannot at the same instant be both the single trustee and the sole beneficiary of the same

estate."Cunningham v. Bright, 228 Mass. 385, 389, 117 N.E. 909 (1917). See Langley v.

Conlan, 212 Mass. 135, 138,98 N.E.I064 (1912);Atkinsv. Atkins, 279 Mass. 1, 7, 180 N.E.

613 (1932).4 Scott, Trusts § 341, at 524 (4th ed.1987).

There is no question that there are four categories of beneficiaries in the Trust that are

clearly delineated in the trust document itself. They include the Settlor, the Settlor's spouse,

the Settlor~ s issue (there are two minor children, CD and DD); .and charitable and tax-exempt

organizations (See Addendum, Exhibit "B," Section 1.2) In order for the sole beneficiary

rule to apply, the Appellee, Dr. Dahl, would have to rid the Trust of all other beneficiaries

except himself and, he would have to have the legal right to alter and amend the Trust

without restriction. Only then would there be a unity· of interests invoking the sole

beneficiary rule. In other words, the applicability of the sole beneficiary rule is contingent

on a court fIrst determining that Dr. Dahl, as Settlor, has the unlimited right to amend and

alter the terms of the Trust. See, In re Szwyd,. 346 B.R. 290, 293 (Bankr.D .Mass.2006), affd,

370 B.R. 882 (1st Cir. BAP 2007); Vittands v. Sudduth, 49 Mass.App.Ct. 401, 409, 730

N.E.2d 325 (2000) ( " ... a trust must still adhere to the rule that no trust exists when the

same individual is the sole settlor, sole trustee, and sole beneficiary.").

23

The Appellant does not argue that there are any provisions within the Trust itself that

would allow the Appellee, Dr. Dahl, to amend the Trust to eliminate the other three

categories of beneficiaries. Appellees submit that there are no such provisions that would

allow the Settlor to eliminate the defmed beneficiaries. Instead, the Appellant argues that

Section 5.5 of the Trust allows the Settlor an unrestricted right to amend and alter the Trust. 3

This is the same section of the Trust that the Appellant uses to argue that the Trust, despite

its clear language, is revocable.

Appellees hereby incorporate the arguments made above that there is no retained right

of the settlor to alter or amend the Trust that exceeds the statutory r~ght to terminate the trust

if the settlor and beneficiaries all agree.

It is at this point that the flaw in the reasoning of the Appellant becomes clear.

Appellant argues that the Settlor, Dr. Dahl, would, at some time in the future, decide to rid

the Trust of all beneficiaries except himself. Appellant argues, that if Dr. Dahl undertook

that action, for some reason, there would then be a unity of interest, thereby terminating the

Trust. However, Dr. Dahl would also have to figure out a way to eliminate the named

trustees and replace each of the three designated trustees.

In the ten years the tl¥st has been in existence~ Dr. Dahl has not attempted to alter or

amend any of the terms of the Trust. There would be no reason that Dr. Dahl would, even

3Sectioll 5.5 provides: "Trust Irrevocable. The Trust hereby estabiished is irrevocable. Settlor reserves any power whatsoever to alter or amend any of the terms or provisions hereof. (Emphasis added)" Addendum, Exhibit "B."

24

, "

if he cDuld, eliminate the Dther beneficiaries Df the Trust. Further, the idea that Dr. Dahl

WDuid emplDY a strategy o.f eliminating the Dther beneficiaries that he knew wDuld create a

unity Df interest defies IDgic.

In sum, the application Df the sole beneficiary rule made by the Appellant is

cDntingent first, Dn Dr. Dahl having a legal right to. amend the Trust. Then the applicatiDn

Df the dDctrine is dependent on Dr. Dahl using that power to. amend to eliminate the Dther

beneficiaries of the Trust. The facts are undisputed that Dr. Dahl has not attempted to. amend

the Trust and certainly has not taken any action to eliminate the other beneficiaries. The

argument that the Court should employ ahypDthetical factual, scenario., that has not happened

and then attach a legal doctrine thereto., is fatally flawed. There is no. unity of interest that

is created by the existing language in the Trust and therefore, there is no basis to' apply the

sole beneficiary rule in this case.

POINT ffi: THE APPELLANT HAS NO ENFORCEABLE INTEREST IN THE TRUST.

In her brief, the Appellant clearly admits that only if the Court were to CDnstrue the

Trust as revocable would she have any pDtential right to seek to. revoke the Trust and

maintain some kind of claim to. the property nDW held by the Trust (See Appellant's Brief,

pp. 35-36). It is important to note that the Appellant Kim Dahl cDnveyed, by warranty deed,

-'-". her interest in the hDme and property IDeated at 4322 NDrth Vintage Drive, Provo., Utah, to'

the Trust Dn June 20,2003 (See Warranty Deed, Addendum Exhibit "C"). She took no actiDn

25

in the divorce case4 to try to set aside the conveyance or to nUllify the tertns of the Trust.

From the time the warranty deed was executed by her in June of2003, until the filing of this

action, August 18, 2009, the Appellant took no action to challenge her conveyance of

property into the Trust.

Contrary to Plaintiff s argument that the Plaintiff as a settlor has the right to revoke

the Trust pursuant to U.C.A. 75-7-605(2), the facts simply do not support the application of

the statute to the facts of this case. The relevant portions of the statute, that the Appellant

did not include in her brief states:

(1) Unless the terms of a trust expressly proVide that the trust is irrevocable, the settlor may revoke or amend the trust. ... (2) If a revocable trust is created or funded by more than one settlor: (a) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses; and (b) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the·portion of the trust property attributable to that settlor's contribution. (Emphasis added)

Here, the Trust document expressly stated that it is irrevocable and therefore, even if

the Appellant was construed as a settlor of the Trust, she cannot employ this statutory

remedy. Under the statute, all that is required to disqualify the Plaintiff is an express

statement in the document that it is irrevocable. As argued above, the trust in this case more

that purports to be irrevocable-all of its integral terms are consistent with an irrevocable

4

Charles F. Dahl v. Kim Dahl, Case No. 064402232, Fourth Judicial District Court in and for Utah County which was filed in October, 2006 and did not produce a Decree of Divorce until July, 2010 (R. 2406-2486).

26

trust.

Unless the Court were to detennine thatthe Trust was revocable, the Appellant simply

has no claim in this case. The First Amended Complaint is so confusing that it is important

to understand that the Appellant has absolutely no basis under the language in the Trust to

contend that she is entitled to judgment based upon any failure of the trustees of the Trust to

distribute funds to her. Under the terms of the Trust, the Appellant was not entitled to any

fixed sum and any distribution to the Appellant would have been in the discretion of the

Trustee and then, even if the Trustee were to opt to distribute funds to the Appellant, that

proposed action would have to survive the ~'veto" right of Dr. Charles Dahl, as the trustor of

the Trust.

Section IT of the Trust is the only relevant section to evaluate because the settlor is still

alive. In relevant part, the section states:

During the lifetime of the Settlor, the Investment Trustee shall pay over or apply the net income and principal of the Trust Estate to such extent, including the whole thereof: and in such amounts and proportions, including all to one to the exclusion of others, and at such or times as the Investment Trustee, in the exercise of his sole and absolute discretion shall determine, to or for the benefit ofthe Beneficiaries; provided., however, that during the life of Settlor, at least thirty (30) days prior to making any payment or application of income or principal to any beneficiary other than the Settlor and Settlor may veto ("Veto'~) any such intended pay by directing the Investment Trustee in writing not to make the payment or application, and, if such Veto is exercised by Settlor, the Investment Trustee shall not make the intended payment or application to a beneficiary other than the Settlor .... Without in any way limiting the sole and absolute discretion of the Investment Trustee hereunder and without imposing any fiduciary duty to do so~ it would be in keeping with Settlor's current intention that the Investment Trustee consider distributions to or for the benefit of Settlor during Settlor's

27

lifetime to allow the Settlor to maintain Settlor's lifestyle as it existed at . the time of creation of the Trust taking into account resources and income available for or by Settlor •••• (Emphasis added)

Addendum, Exhibit "B."

There could not be a clearer expression that any and all distributions to the

beneficiaries under the Trust were in the absolute discretion of the Trustee, even as to Dr.

Charles Dahl. There is no claim in this case that the Investment Trustee abused his discretion

in failing to make distributions to the Appellant and therefore any right of the Appellant to

a distribution of the Trust assets must arise from the four comers of the Trust and clearly,

Appellant has no fixed right to receive any distribution of Trust assets at any time.

Of course, the issue became even clearer after the entry of the decree of divorce

between the Appellant and Appellee, Dr. Dahl. There is no question that Section I of the

Trust, in describing the beneficiaries, uses the term "the Settlor's Spouse." The "Settlor" for

purposes of the Trust is defmed in the opening paragraph as Charles F. Dahl. Therefore,

when the Decree of Divorce was entered, the Appellant was no longer a spouse of the settlor

and was no longer a beneficiary of the Trust, and therefore excluded as a possible recipient

of distributions from the Trust.

POINT IV: UTAH'S PUBLIC POLICY DOES NOT DICTATE CONSTRUCTION OF THE TRUST AS REVOCABLE.

A. The Issue is Being Raised for the First Time on Appeal and on That Basis Should be Rejected.

Again, in arguing that the construing the Trust as irrevocable is in violation of Utah , s

28

public policy, the Appellant is resorting to issues that were not raised in the lower court.

There is simply no question that public policy was not the basis of any argument made by the

Appellant that the Trust should be interpreted as revocable. A review of the Plaintiff s

response to the Defendants' motion for summary judgment reveals that public policy was

simply not raised as a basis upon which the court could construe the Trust as revocable (R.

2406-2574). Particular attention should be given to the section of the response where the

Plaintiff argued that the Trust was revocable. Nowhere in the section is public policy ~gued

by the Plaintiff (R. 2554-2558) .. Likewise, in the Plaintiffs memorandum in support of

partial summary judgment, the public policy issue is not raised (R. 473-573). Again in the

relevant section in which the Plaintiff contended that the Trust was revocable, there is no

argument based upon public policy (R. 560-562).

Because the Appellanf s presentation on appeal is based, to a significant degree, on

arguments not made in the lower court, the reaches of the doctrine prohibiting new arguments

on· appeal should be addressed.

In Patterson v. Patterson, 266 P.3d 828 (Utah,2011), the Utah Supreme Court

addressed the subtleties of the rule that generally prohibits a party from raising new

arguments on appeal. In that case, the appellant was seeking to avoid the preservation rule

by broadly defining the "issue" decided by the district court. The Court rejected that notion. J

fd. The Court noted that courts in some jurisdictions have recognized a distinction between

new "issues" or ''theories'' and new "arguments," allowing the latter but not the former to be

29

raised for the fIrst time on appeal. (citing cases). In the Court's decision, the Supreme Court

expressly declined to honor such a distinction citing Ong Int'l (U.S.A.) Inc. v. 11th Ave.

Corp.,_850P.2d 447, 455 n. 31 (Utah 1993) and In re Estate o/Sims, 918 P.2d 132, 134 n.

2 (Utah Ct.App.1996) (rejecting appellant's attempt to avoid the preservation rule by

characterizing estoppel as a new argument rather than a new issue).

Accordingly, regardless of whether the new material is termed an "issue," "claim,"

"argument," or "matter," the preservation rule prevents new material for the fIrst time on

appeal. See, e.g., Jacob v. Bezzant, 2009 UT 37, ~ 34,212 P.3d 535; State v. Cruz, 2005 UT

45, ~ 33, 122 P.3d 543; Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998);

Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983).

rule.

The Court in Patterson then addressed the underlying policies behind the preservation

The two primary considerations underlying the rule are judicial economy and fairness. The preservation rule furthers judicial economy in a number of ways. First, requiring a party to raise an issue or argument in the trial court gives "the trial court an opportunity to address the claimed error, and if appropriate, correct it." Tschaggeny v. Milbanklns. Co., 2007 UT 37, ~ 20, 163 P.3d 615 (internal quotation marks omitted). This "avoid[ s] unnecessary appeals and retrials." Smith v._Shannon, 100 Wash.2d 26, 666 P.2d 351, 358 (1983). Second, "[0 ]rderly procedure ... requires that a party must present his entire case and his theory ... of recovery to the trial court." Dansie v. City of Herriman, 2006 UT 23, ~ 30, 134 P.3d 1139 (fIrst and second alterations in original) (internal quotation marks omitted). The policy of judicial ~conomy is most directly frustrated when an appellant asserts unpreserved claims that require factual predicates. For this reason, the preservation rule should be mor.e strictly applied when the asserted new issue or theory "depends on controverted factual questions whose relevance thereto was not made to appear at trial." James v. Preston, 746 P.2d 799, 801 (Utah Ct.App.1987) (internal

30

)

Id

quotation marks omitted); see also Turtle Mgmt, Inc. v. Haggis Mgmt., Inc., 645 P.2d 667,672 (Utah 1982) (holding that an issue was not properly before the court on appeal because the trial court did not have the opportunity to make any fmdings of fact regarding it).

There is no question that it is simply unfair to reverse a district court for a reason

presented fIrst on appeal. S~e, e.g., Nielsen v. Brocksmith, 323 Mont. 98,99 P.3d 181, 184

(2004).

Under our adversary system, the responsibility for detecting error is on the party asserting it, not on the court. Notions offairness therefore dictate that a party should be given an opportunity to address the alleged error in the trial court. Having been given such a chance, the party opposing a claim of error might have countered the argument, potentially avoiding the time and expense of appeal. Finally, "requiring preservation of an issue prevents a party from avoiding the issue at trial for strategic reasons only to raise the issue on appeal if the strategy fails." Tschaggeny, 2007 UT 37, ~20, 163 P.3d 615.

Patterson v. Patterson, 266 P.3d 828 (Utah,2011).

The Court in Patterson could nothave been clearer. In the end, the Court allowed the

Appellant to raise a controlling statute because the statute had, in effect, overruled case law

on the subject. As noted by the Court, when the new material raises controlling authority that

directly bears upon a properly preserved issue, the court will consider the same. Because the

UUTC overruled the applicable case law, the Court could not ignore the issue. Id

In this case, the public policy argument, which is based upon the assertion that the

Trust is a post-nuptial agreement, is an entirely new argument and not controlling authority

on an issue raised below. Further, the issue has factual predicates that are not established in

31

the record.

B. The Argument Requires, at its Foundation, Factual Predicates that do not Exist in the Record.

The Appellant in her brief, simply jumps to the conclusion that the Trust was a post-

nuptial agreement (Appellant's brief, pp. 36-41). It is from the conclusion that the Trust was

a post-nuptial agreement that the Appellant argues that public policy prohibits a construction

of the Trust as irrevocable. Id Postnuptial agreements are a type of contract and are

generally subject to basic contract principles. See, Peirce v. Peirce, 994 P.2d 193

(Utah,2000); Inre Estate of Beesley, 883 P.2d 1343, 1351 (Utah 1994).

Generally, formation of a contract requires an offer, an acceptance, and consideration.

See Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732 (Utah 1985). An offer is a

'''manifestation of willingness to enter into a bargain, so made as to justify another person

in understanding that his assent to the bargain is invited and will conclude it.' " Engineering

Assocs. v. Irving Place Assocs., 622 P.2d 784, 787 (Utah 1980) (quoting Restatement

(Second) of Contracts § 24) (1981). "For an offer to be one that would create a valid and

binding contract, its terms must be defmite and unambiguous." DCM Inv. Corp. v. Pinecrest

Inv. Co., 2001 UT 91, ~ 12,34 P.3d 785. The obligations of the parties must be "set forth

with sufficient defmiteness that [the contract] can be performed." Ferris v. Jennings, 595

P.2d 857, 859 (Utah 1979); see 1 Williston on Contracts § 4.21, at 644 (4th ed.) (discussing

the defmiteness of offers and noting that "[a] lack of defmiteness in an agreement may

concern the time of performance, the price to be paid, work to be done, property to be

32

transferred, or miscellaneous stipulations to the agreemenf'). "The tenns of a contract are

reasonably certain if they provide a basis for detennining the existence of a breach and for

giving an appropriate remedy." Restatement (Second) of Contracts § 33(2). An offer (other

than an option contract) may be withdrawn at any time before acceptance. See J.R. Stone Co.

v. Keate, 576 P.2d 1285, 1288 (Utah 1978).

In this case, the Trust document does not purport to be a post-nuptial agreement. The

words "agreement" or "contract" as it relates to the relationship between Dr. Dahl and Kim

Dahl do not exist. Kim Dahl, the Appellant, is not a signatory of the Trust and her transfer

of the vintage Drive property was made by Warranty deed, separate and apart from the

execution of the Trust. Therefore, for a post-nuptial agreement to exist, there had to be an

agreement independent of the Trust. There are no facts that exist in the record in this case,

wherein the Appellant contends that the Trust was somehow the part of a larger agreement

with her husband, at the time, Dr. Dahl. The Appellant does not even suggest the required

factual predicate. What was the offer that Dr. Dahl made to Kim Dahl that resulted in her

deeding the home and property into a trust? The reason the Appellant does not cite to any

evidence is because there is no evidence. The Appellant never argued or suggested that the

Trust was part of an over-riding contract. There is simply no way that the Appellant can

establish an offer in this case based upon the record and allowing the argument and

conclusions of the Appellant with regard to the same would be the height of unfairness as

contemplated by the preservation rule.

33

As to the second element of a contract, "[a]n acceptance is a manifestation of assent

to an offer, such that an objective, reasonable person is justified in understanding that a fully

enforceable contract has been made." Cal Wadsworth Constr. v. City of St. George, 898 P .2d

1372, 1376 (Utah 1995). It "must unconditionally assent to all material terms presented in

the offer, including price and method of performance, or it is a rejection of the offer." Id.

Again, there is absolutely no factual basis for the conclusion that whatever offer Dr.

Dahl1,11ade to Kim Dahl, she accepted it as stated and did not make a counteroffer or counter

proposal. The record in this case is completely silent as to any event or occurrence by which

the Appellant an acceptance to what~ver offer the Appellee, Dr. Dahl made.

The third element of a contract is the demonstration of consideration. "Consideration

is present when there is an act or promise given in exchange for the other.party's promi,se,"

Healthcare Servs. GroupInc. v. Utah Dep't of Health, 2002 UT 5,'17,40 P.3d 591 (citing

Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998)). "Thus, 'there is

consideration whenever a promisor receives a benefit or where [ a] promisee suffers a

detriment, however slight' " Id (quoting Gasser v. Horne, 557 P.2d 154, 155 (Utah 1976)

(alteration in original)).

As with the other elements of an alleged contract, the record is devoid of any evidence

of the consideration given for any agreement. lithe Appellant was persuaded to transfer the

Vintage Drive prop'erty based upon some agreement and consideration, the record is

completely bare of any substantiation thereof.

34

Appellees assert that the argument made by the Appellant based upon the existence

of a post-nuptial agreement, should be rejected based upon the preservation doctrine.

Specifically, the argument is completely based on material asserted for the fITst time on

appeal. Second, the argument relies upon factual predicates that do not exist in the record

and are conclusory. To allow the argument without allowing the Appellees an opportunity

to refute the factual propositions that the Appellant assumes, would be unfair and highly

prejudicial.

C. There is no Underlying Inequity that Would Invoke Public Policy Considerations.

The Appellant throughout her brief: makes arguments that suggest that if she is not

given access to property in the Trust, some great injustice will occur. The notion that the

Appellant is entitled to the Trust assets based upon some notion of fairness, is a major

distortion of the truth.

Kim Dahl and Dr. Dahl, in litigation that spanned over four years, litigated to

conclusion their claims for a division ofthe marital estate (R. 2406-2486). The litigation in

the divorce case continues to the present day and Kim Dahl's appeal from the entry of the

decree of divorce is scheduled for oral arguments this month before this Court. Dr. Dahl, a

board certified cardiologist married Kim Dahl when he was in his forties. He had, at the time

of the marriage to Kim Dahl, who had previously been married, significant fmancial assets.

In the divorce, Kim Dahl received one half of the marital property, which consisted of

35

millions of dollars. The problem was that Kim Dahl assigned everything she had and would

acquire as security for the attorney fees in the case. Through trial of the divorce, Mr.

Christensen charged Kim Dahl in excess of Two Million Dollars in fee compared to Dr.

Dahl's attorney fees of just approximately Ninety Thousand Dollars.

Because much of what Kim Dahl acquired in the divorce went for attorney fees, she

and her attorney have unleashed a litigation war that consists of multiple cases in multiple

courts attempting to access more of the assets of Dr. Dahl or assets of entities in which Dr.

Dahl has an interest.

Appellees recognize that this point is the assertion of facts not in the record but feel

compelled to respond to the same conc1usory arguments made by the Appellant, not based

upon the record in this case~ that somehow she has been wronged by Dr. Dahl and that the

Trust was some guise to divest her of assets she would otherwise be entitled to.

Although attempted vigorously by the Appellant, there is no doctrine that has been

raised in this case that somehow is dependent on underlying equities. If such an issue had

been raised, the evidence would support the Appellee's contention that Kim Dahl was treated

fairly in the divorce and that she received a half of the marital assets.

POINT V: THE LOWER COURT'S DECISION AS TO THE

CONTROLLING LAW WAS NOT ERROR.

The lower court, in an exhaustive summary of the process, described in detail the basis

for the granting of Defendants , motion for summary judgment (R. 2716-2732,2945-2962).

36

Because the granting of summary judgment relies on the existence of undisputed material

facts, findings are not required in an order granting summary judgment. Crisman v. Hallows,

999 P.2d 1249 (Utah App.,2000) (holding that because on motion for summary judgment the

court does not make findings of fact, but rather determines only whether the movant is

entitled to judgment as a matter of law based upon the undisputed material facts). However,

in this case, the court described the process and the conclusions that he made as to undisputed

facts and the application of applicable law.

The orders of the lower court analyzed whether the Trust was revocable employing

both Nevada and Utah law.and concluded under the law in both states, the Trust was

irrevocable. fd. The Appellant is arguing that if the lower court has applied Utah law only,

the result in this case would be different (See Appellant's brief, pp. 41-44). Appellees assert

that the choice of law is not material in this case because, under the law of both states, the

Trust should be construed as irrevocable.

The Appellees' argued that the most compelling argument regarding how the

revocability of the Trust should be determined was based upon the applicable Nevada statute.

Appellees argued that whether or not the court determined that Nevada's law applied, the

statue should be considered because the drafter of the Trust was assuming that the choice of

law clause in the Trust would be applied by a court adjudicating the terms of the trust.

Section 5.4.6 of the Trust provides as follows:

37

Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada .....

As noted by the Court inlnnerlight, Inc. v. Matrix Group, LLC~ 2009 UT 31, choice

of law and choice of forum provisions contained in contracts and legal documents are

enforceable. Other jurisdictions have made similar determinations regarding the

enforceability of forum selection and choice oflaw provisions within contracts. See Yazdani

v. Access ATM, 941 A.2d 429, 432 (D.C. 2008) (enforcing a forum-selection clause

"notwithstanding appellee's disavowal of the remainder of the contract"); see also Marra v.

Papandreou, 216 F.3d 1119, 1123,342 U.S. App. D.C. 276 (D.C. Cir. 2000) ("A forum-

selection clause is understood not merely as a contract provision, but as a distinct contract

in and of itself--that is, an agreement between the parties to settle disputes in a particular

forum--that is separate from the obligations the parties owe to each other under the remainder

of the contract." (citing Nw. Nat'llns. Co. v. Donovan, 916 F.2d 372,376 (7th Cir. 1990)).

The applicable Nevada statute is NRS 163.560 which is entitled "Irrevocable trust not

to be construed as revocable." It states, "[i]fthe settlor of any tr~st specifically declares

in the instrument creating the trust that such trust is irrevocable it shall be irrevocable

for all purposes, even though the settlor is also the beneficiary; of such trust." (Emphasis

added).

Appellant concedes that if this Court applied Nevada law and the above cited statute

to the facts of this case, the Court must fmd that the Trust is irrevocable (See Appellant's

38

brief, pp. 43-44). The only basis that the Appellant raises as to why the Court should not

enforce the choice oflaw provision provided in the Trust, is that to do so would result in a

conclusion that is repugnant to Utah's public policy (See Appellant's brief, pp. 41-42). The

only public policy of Utah that the Appellant argues would dictate rejection of Nevada law

is the sole beneficiary rule. fd. The conclusion that the cited statute would be applied in

cases where there was a unity of interests is baseless. Whether or not a trust is revocable or

not is irrelevant when there is a claimed unity of interest of the rights of the settlor, trustee

and beneficiary. When the interest unite, the trust terminates regardless of whether it is

revocable or not. The fact that a trust is irrevocable does not prevent the application of the

sole beneficiary rule. The statute has nothing to do with the sole beneficiary rule and

certainly the statue does not attempt to override or controvert the common law relating

thereto.

Further, as argued above, the sole beneficiary rule does not apply to this case and

therefore the argument that Nevada's statute somehow impacts the doctrine is irrelvant to the

issues on appeal in this case.

POINT VI: JUDGE DAVIS DID NOT COMMIT ERROR IN REFUSING

TO ALLOW ANY FURTHER DISCOVERY

A. The Alter-Ego Claim was neither Preserved in the Lower Court Or used as a Basis to Seek the Right to Further Discovery.

The Appellant's only claim that Judge Davis abused his discretion with regard to

granting summary judgment is that she was precluded from conducting discovery regarding

39

her "alter ego" theory. Appellant argues that she had alleged that the Trust was the alter ego

of Dr. Dahl (See Appellant's brief, pp. 44-48). There is no question, as demonstrated above,

that all of the issues raised by the Appellant with the exception of one, are strictly

determination that are made as a matter of law from the language found within the four

comers of the Trust document. Therefore any order affecting the right to conduct further

discovery would have no effect on the determination of those issues. As noted at the outset,

there was no assertion in this case by any party that parol or extrinsic evidence was

admissible to interpret the relevant portions of the Trust.

Therefore, the only issue that would require further evidence is an issue for which the

Appellant is not asking for further discovery. That issue relates to the alleged post-nuptial

agreement which required a myriad of facts that do not appear in the record.

As it relates to the alleged "alter-ego" theory, Appellees respectfully submit that no

such argument was made in the lower court and certainly is not contained in the First

Amended Complaint, as alleged by Appellant (flee Appellant's brief, pp. 44-48). A review

of the First Amended Complaint reveals that the tenn "alter-ego" is not used in the

Complaint. Additionally there is not a single sentence in the First Amended Complaint that

contends that the Trust is the alter-ego of Dr. Dahl CR. 300-312). There are two causes of

action in the complaint, one for declaratory judgment and one for accounting. There is no

cause of action based upon alter-ego.

The argument that the Appellant has a claim based upon alter-ego is again, an

40

argument that is made for the fIrst time on appeal. Certainly under the preservation doctrine,

a party certainly should be precluded from raising a brand new cause of action, not contained

in the complaint, for the fIrst time on appeal. The Appellant incorporates the arguments

relating to the preservation doctrine contained in Point IV above.

AsnotedinColmanv. Colman, 743 P.2d 782 (UtahApp.,1987)~ to disregard an entity

like a corporation under the equitable alter ego doctrine, two circumstances must be shown:

(1) Such a unity of interest and ownership that the separate personalities of the corporation

and the individual no longer exist, but the corporation is, instead, the alter ego of one or a

few individuals; and (2) if observed, the corporate form would sanction a fraud, promote

injustice, or result in an inequity. Id. See also, Norman v. MurrayFirst Thrift & Loan Co.,

596 P .2d 1028, 1030 (Utah 1979). Accord United States v. Healthwin-Midtown Convalescent

Hasp. and Rehabilitation Center, Inc., 511 F.Supp. 416 (C;D.Cali£1981).

The Court in Colman5 then held that certain factors which are deemed significant~

although not conclusive, in determining whether this test has been met include: (1)

undercapitalization of a one-man corporation; (2) failure to observe corporate formalities;

(3) nonpayment of dividends; (4) siphoning of corporate funds by the dominant stockholder;

(5) nonfimctioning of other officers or directors; (6) absence of corporate records; (7) the use

5

The factors delineated in Colman were discussed and refined in Jones & Trevor Marketing, Inc. v. Lowry, 284 P 3d 630 (Utah,2012). However, the refmements are not material to the Appellee's argument in this case.

41

of the corporation as a facade for operations of the dominant stockholder or stockholders;

and (8) the use of the corporate entity in promoting injustice or fraud. Id.

There is no question that Utah is a notice pleading state. Accordingly, a claim of relief

must include "a short and plain statement ofthe claim showing that the pleader is entitled to

relief." Utah R. Civ. P. 8(a). The Utah Supreme Court has "consistently noted that Utah's

notice pleading requirements are liberal." Gudmundson v. Del Ozone, 2010 UT 33, 140, 232

P.3d 1059. "[A]ll that is required is that the pleadings be sufficient to give fair notice ofthe

nature and basis of the claim asserted and a general indication of the type of litigation

involved." Id. (internal quotation marks omitted). The issue, then, is whether Plaintiffs First

Amended Complaint gave "fair notice of the nature and basis of the claim" and "a general

indication of the type of litigation involved." See id. , 40 (citation and internal quotation

marks omitted).

Appellees submit that there is not a hint in the First Amended Complaint as to any of

the eight factors delineated in Colman. Most importantly, the Plaintiff never alleged in the

complaint, in her motion for partial summary judgment or in her response to Defendants'

motion for summary judgment that the Trust should be disregarded based upon the alter ego

theory. The sole contention of the Appellant has been that the court should construe the

Trust is revocable based on several different arguments, none of which was the alter-ego

theory (R. 2406-2574, 473-573, 300-312). Based upon the factthatthe alter-ego theory has

not been properly raised, any argument that the Appellant was denied discovery is

42

~,

immateriaL

There is another important point. In the only Rule 56(f) affidavit filed by Appellant's

counsel, there isa list of the issues for which discovery was needed. In that itemization,

there is no reference to the alter-ego theory'or any related matter CR. 1829-34, paragraph 26

thereof).

Accordingly, the right to conduct further discovery for the purpose of discovering

facts relevant to analter-ego claim were never presented to the trial court. Accordingly, there

could not have been any abuse of discretion.

B. The Claim that the Trnstwas Null and Void did not Equate to an Alter-Ego Claim.

In paragraph 47 of the Amended Complaint, there is a simple sentence that states that

"Plaintiff contends that the Trust Agreement should be declared null and void (R. 304). The

Plaintiff provides no basis for such a request and does not link the request to some other

cause of action such as alter-ego, fraud, etc.

The Defen.dants made a point of that claim in their motion for summary judgment.

The Defendants argued that the language used by Plaintiffto express this theory of "null and

void" is curious to say the least. ~'Null and void" is not a formal cause of action recognized

in this state or elsewhere. There are no factual allegations in the Amended Complaint that

accuse the settlor of fraud, mistake, duress, undue influence, illegality or contend that the

trust is violative of public policy or contrary to a law or statute. The only allegation that the

Plaintiffhas alleged is that the language in the Trust has allowed the Defendant Charles Dahl

43

to exercise such control over the trust that the Court should therefore interpret the Trust as

revocable. Such a request is not grounds to contend that this Court has a factual or legal

basis to adjudge the Trust as void.

In Ockeyv. Lehmer,200S UT37, 1S9P.3d51~ the Utah Supreme Court was asked to

determine whether a conveyance of an interest in a ranch was void or merely voidable. See

id. In that case, one of the beneficiaries of a family trust contested a conveyance of his

interests. See id .. The Court wrote

A contract ora deed that is void cannot be ratified or accepted, and anyone can attack its validity in court. In contrast, a contract or deed that is voidable may be ratified at the election of the injured party. Once ratified, the voidable contract or deed is deemed valid. A deed that is voidable is valid against the world, including the grantor, because only the injured party has standing to ask the court to set it aside.

In general, the difference between void and voidable contracts is whether they offend public policy. Contracts that offend an individual, such as those arising from fraud, misrepresentation, or mistake, are voidable. Only contracts that offend public policy or harm the public are void ab initio. . .. For a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.

Id. pp 18-19, 21 (footnotes and internal quotation marks omitted).

There are no factual allegations upon which the Appellant could contend or the Court

frnd, that the Trust was void as against public policy. Therefore, there is no legal basis upon

which the Court could frnd that the Trust was void.

As it relates to being voidable, the Appellees argued that every relevant statute of

limitations ran before the action was filed. See D.C.A. 7SB-2-305 (2010 as Amended) limits

44

actions based the grounds of fraud or mistake to three years. 78B-2-307 (2010 as Amended)

limits actions based upon a contract, obligation, or liability not founded upon an instrument

in writing as well as other actions not detailed in the statute to four years. 78B-2-309 (2010

as Amended) limits actions based upon any contract, obligation, or liability founded upon an

instrument in writing, to six years.

In response to the Appellees' arguments relating to the claim of "null and void" the f

Appellant did not respond thereto in their responsive memoranda and failed to link the relief

of voiding the Trust with any relevant cause of action (R. 2553-2574).

Finally AppeUant argues that the trial court erred in incorporating a rmding that any

cause of action that could be the basis for a determination that the Trust was void or voidable

would be barred by the statute of limitations (See Appellant's brief, pp. 48-51, R. 2957,

2727). The Appellant argues that the issue of the statute of limitations was not before the

court. Id. Contrary to the assertion of Appellant, the issue of the statute of limitations was

before the court. The Plaintiff alleged that the Trust was null and void. The Defendants

countered that they were entitled to summary judgment on that point because "null and void~'

was not a cau'se of action and that all possible causes of action upon which the Trust could

be found to be voidable were barred by the statute oflimitations. lfthe Defendants did not

establish that there was no viable cause of action to support a fmding of void ability, the right

to summary judgment could be questioned. Accordingly, the determination by the court that

all possible causes of action were time barred was a material and relevant fmding.

45

CONCLUSION

Appellees submit that the Trust, under bo.th the law o.f Utah and Nevada, is, as a

matter of law, irrevo.cable. Because the Trust is irrevo.cable, any and all claims o.f the

Appellant relating thereto are extinguished. Further, the Appellant's new arguments relating

to. the so.le beneficiary rule and the alter-ego. theo.ry sho.uld be disregarded because they were

no.t preserved in the lo.wer cQurt. Even if the Co.urt co.nsiders the new arguments, it is clear

that the so.le beneficiary rule does no.t apply to. the facts o.fthis case. The lo.wer co.urt did not

abuse its discretioq i,n no.t extending disco.very rights o.r in its inclusio.n o.f a finding with

regard to. the statue o.flimitatio.ns applicable to causes of action upon which the Trust could

be found to be vo.idable,

Appellees respectfully request that the Court affrrm the determination o.f the lower

co.urt in granting Defendants' motion for summary judgment and denying the Plaintiff s

motion fo.rpartial summary judgment.

Respectfully submitted this 8th day of November, 2012.

elock, Esq. Attorney for tppellees

46

CERTIFICATION OF COMPLIANCE WITH RULE 24(f)(1)

I certify that this brief complies with the requirements of Rule 24(f)(1) of the Utah Rules of Appellate Procedure. The brief, which must be less that 14,000 words, complies with that requirement according to ''word count" available in WordPerfect, exc1uding.the table of contents, table of authorities, certificates, and the addendum. The total numbe words is 12,932.

CERTIFICATE OF SERVICE

I hereby certify that two true and correct copies of the foregoing BRIEF OF

APPELLEES were mailed to the following, via frrst-class mail, prepaid~ on the 9th day

of November, 2012:

Steve S. Christensen 136 East South Temple, Suite 1400 Salt Lake City, UT 84111-3156

47

ADDENDA

ADDENDUM Exhibit "A"-Order Granting Defendants'

Motion for Summary Judgment

.. . ~ .

IN THE FOURTH JUDICIAL DISTRICT COURT

UTAH COUNTY, STATE OF UTAH

KIM DAHL, ) )

Plaintiff, ) )

vs. ) )

C. ROBERT DAHL, as Investment Trustee ) Ofthe DAHL F AMIL Y IRREVOCABLE ) TRUST (10/23/02); MARLETTE and ) CHARLES F. DAHL, )

) Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Civil No.: 090402989 Judge: Lynn Davis

This matter came before the Court for oral argument on August 31, '2011. At the end of

the argument each counsel was instructed to prepare an order consistent with their respective

positions.

The court notes that the Dahls have been involved in an endless divorce for many years.

The claim in this case, which involves, inter alia, the marital home of the parties, should have

been resolved in the pending divorce. Forreasons totally unclear to this judge, these claims were

not adjudicated in the ongoing, pending divorce action. Had Plaintiff sought relief in the divorce

action, then the equitable powers of the Court could have applied. Here, no equitable powers can

be applied and the COUli must rule as a matter of law.

The Court, having carefully examined the memoranda of law, the arguments of counsel,

and having carefully examined the proposed orders of counsel hereby grants Defendants' Motion

for Summary Judgment and denies Plaintiff's Motion for Summary Judgment.

1. Law Applicable to Summary Judgment Determinations.

l. In keeping with the clear language of Rule 56(c) of the Utah Rules of Civil

Procedure and interpreting case law, summary judgment is appropriate if 'there is no genuine

1

002732

issue as to any material fact and ... the moving party is entitled to a judgment as a matter of

law.' Cabaness v. Thomas, 2010 UT 23, P 18, 232P.3d 486 (omission in original) (quoting Utah

R. Civ. P. 56(c». A summary judgment movant, on an issue where the nonmoving p·arty will

bear the burden of proof at trial, may satisfy its burden on summary judgment by showing, by

reference to the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, that there is no genuine issue of material fact. Upon such a

showing, whether or not supported by additional affirmative factual evidence, the burden then

shifts to the nonmoving party, who may not rest upon the mere allegations or denials of the

pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Orvis v.

Johnson, 2008 UT 2, P 18, 177 P.3d 600 (emphasis in original) (citations and internal quotation

marks omitted). All evidence is viewed in the light most favorable to the party opposmg .

summary judgment," Doctors' Co. v. Drezga, 2009 UT 60, P 9, 218 P.3d 598.

II. Declaratory Judgment Determination

2. In Count I of her Amended Complaint, the Plaintiff has asked for declaratory

judgment concerning the parties' rights and duties under the Irrevocable Trust (See Amended

Complaint, paragraphs 43-53).

3. The conditions which must exist before a declaratory judgment action can be

maintained are: (1) a justiciable controversy; (2) the interests of the parties must be adverse; (3)

the party seeking such relief must have a legally protected interest in the controversy; and (4) the

issues between the parties involved must be ripe for judicial determination. Lyon v. Bateman,

228 P.2d 818, 820 (Utah 1951). See, e.g., Backmanv. Salt Lake County, 375 P.2d 756 (Utah

1962); Parker v. Rampto71, 497 P.2d 848 (Utah 1972); Bairdv. State, 574 P.2d 713 (Utah 1978);

Jenkins v. Swan, 675 P.2d 1145 (Utah 1983). Failure to meet any of the four requirement

requires the dismissal of the petition for declaratory judgment. Boyle v. National Union Fire Ins.

Co., 866 P.2d 595, 598 (Utah App. 1993).

2

002731

4. However, even if declaratory judgment is appropriate in this case, the COLui still

has discretion and may thus decline to grant a request for declaratory judgment. The Utah

Declaratory Judgment Act "gives a trial court discretion to either grant or deny a party's

declaratory judgment action by virtue pfthe statute's use of the word 'may.'" Strawberry Electric

Service District v. Spanish Fork City, 918 P.2d 870, 882 (Utah 1996). In Boyle v. National Union

Fire Ins. Co., the court held that if a declaratory judgment under Section 78-33~6 of the Utah

Code would not terminate the uncertainty or controversy giving rise to the proceeding, then the

court may decline to grant it. 866 P.2d 595, 598 (Utah App. 1993).

5. In fact, the CUlTent statutory version of the declaratory judgment act, UC.A. 78B-

6-404 (2008 as Am~nded) explicitly provides that "[tJhe court may refuse to render or enter a

declaratory judgment or decree where a judgment or decree, if rendered or entered, would not

terminate the uncertainty or controversy giving rise to the proceeding." In this case, even if the

Court were to declare the Plaintiff as a "settlor" and the Trust as "revocable," it would not

terminate the controversy or resolve the dispute between the parties.

6. AccordingJy, this Court declines to undeliake the seemingly meaningless task of

declaring the rights and duties of the parties to this action.

'"'I .J

III. Existence of Material Statements of Fact

7. Rule 7(c)(3)(B) of the Utah Rules of Civil Procedure clearly states that:

A memorandum opposing a motion for summary judgment shall contain a verbatim restatement of each of the moving party's facts that is. controverted, and may contain a separate statement of additional facts in dispute. For each of the moving party's facts that is controverted,· the opposing party shall provide an explanation of the grounds for any dispute, supported by citation to relevant materials, such as affidavits or discovery materials. For any additional facts .set forth in the opposing memorandum, each fact shall be separately stated and numbered and supported by citation to supporting materials, such as affidavits or discovery materials. (Emphasis added)

0027.30

8. In this case, the plaintiff did not comply with the Rule and did not contest the

Statement of Undisputed Facts contained in the Defendants' original memorandum in support of

summary judgment. Therefore, the same are deemed admitted. The Court finds that the

Statement of Additional Facts contained in the Plaintiffs' response does not raise genuine issues

of material fact.

IV. Plaintiff's Request for Additional Discovery.

9. Although not mentioned specifically by the Plaintiff, the Plaintiff seems to be

relying on Rule 56(f) of the Utah Rules of Civil. Procedure for the right to conduct further

discovery in tIlls case before being required to respond to the Defendants' motion. Rule 56(f) of

the Utah Rules of Civil Procedure provides that:

(f) When affidavits are unavailable. Should it appear from. the affidavits of a paliy opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the COUli may refuse the application for judgment or may order a continuance to permit affi.·davits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

10. The record in this case establishes that the Plaintiff sent a thorough set of requests

for admission, inten-ogatories and requests for production of documents that resulted in a

massive production that is summarized on the various motions relating to discovery. The

Plaintiff has failed to file the required affidavit outlining specifically what discovery was needed . .

in relation to the issues raised in the summary judgment motion. Accordingly, because the

required affidavit under Rule 56(f) was not filed with the responsive memorandum of the

Plaintiff, no relief is available under the Rule.

11. FUliher, under Rule 56(f) a trial COlui is bound to a standard of reasonability.

4

002729

Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ~ 20, 192 P.3d 858 (quoting Crossland

Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)). In Overstock com, the Utah Supreme Court

listed some of the relevant considerations in determining whether the grant of a rule 56(f) motion

is warranted:

ld.

(1) an examination of the pmiy's rule 56(f) affidavit to determine whether the discovery sought will uncover disputed material facts that will prevent the grant of summary judgment or if the party requesting discovery is simply on a "fishing expedition," (2) whether the party opposing the summary judgment motion has had adequate time to conduct discovery and has been conscientious in pursuing such discovery, and (3) the diligence of the pruiy moving for summary judgment in responding 1 066 to the discovery requests. provided by the 'pruty opposmg summary judgment.

12. Without the required affidavit, it is impossible for the Court to make a

determination as to what discovery has been conducted, the need for other discovery in light of

the issues raised in the motions for summary judgment and other relevant inquiries.

Accordingly, the implies request for additional time to conduct discovery is denied.

V. Request for a Determination that the Trust is Null and Void.

13. In paragraph 47 of the Amended Complaint, the Plaintiff seeks a determination

that the Dahl Family Irrevocable Trust (10/23/02), is null and void. Nowhere in the Amended

Complaint does the Plaintiff ptovide a viable legal theory upon which the Court could rule that

the Trust, without any further factual determinations as required by the Declaratory judgment

Act, is null and void. The Plaintiffs theory appears to be that if the Trust was declared void, she

would have restored to her, the interest in the real property that she conveyed away ten years

ago.

14. However, "null and void" is not a formal cause of action. There are no

5

L 002728

)

material tactual allegations in the Amended Complaint that accuse the Defendants of fraud,

mistake, duress, undue influence, illegality or otherwise contend that the trust is violative of

public policy or contrary to a law or statute. I The only allegation that the Plaintiff has alleged is

that the language in the Trust has allowed the Defendant Charles Dahl to exercise such control

over the trust that the Court should therefore interpret the Trust as revocable. Such a request is

not grounds to contend that this Court has a factual or legal basis to adjudge the Trust as void.

15. Under the law set out in Ockey v. Lehmer, 2008 UT 37, 189 P .3d 51, it is clear

that none of the allegations in the· Amended Complaint rise to the level required for a

determination that the Trust is null and void. In general, the difference between void and

voidable contracts is whether they offend public policy. Contracts that offend an individual, such

as those arising from fraud, misrepresentation, or mistake, are voidable. Only contracts that

offend public policy or harm the public are void ab initio. . .. For a contract to be void on the

basis of public policy, there must be a showing free from doubt that the contract is against public

policy. Jd. PP 18-19,21 (footnotes and internal quotation marks omitted).

16. Therefore there are no material issues of fact that would preclude a determination

that the Trust in question is void and summary judgment is granted to the Defendants on .that

point.

VI. Plaintiff's Request for a Determination That she has an Immediate Interest in the Trust.

17. In paragraph 45 of the Amended Complaint, the Plaintiff requests that the Court

However, even if the Plaintiflwere to make such a claim, the statute oflinlitation has passed on all causes of action related to those theories. U. C.A. 78B-2-305 (2010 asAmended) limits actions based the grounds of fraud or mistake to three years. 78B-2-307 (2010 as Amended) liinits actions based upon a contract, obligation, or iiability not founded uponan instrument in writing as well as other acti ons not detailed in the statute to four years. 7 8B-2-309 (2010 as Amended) limits acti ons based upon any contract, obligation, or liability founded upon an instrument in writing, to six years.

6

nn?7?!

adjudge by declaratory judgment that she has an immediate interest in the corpus of the Trust.

The undisputed facts reveal that the Plaintiff has absolutely no factual or legal basis under the

language in the Trust to contend that she is entitled to a determination that she has an interest in

the corpus of the Trust based upon the failure of the trustees of the Trust to distribute funds t?

her. Ui1der the terms of the Trust, the Plaintiff was not entitled to any fixed sum and any

distribution to the Plaintiff would have been in the discretion of the TTllstee and then survive the

"veto" right of Dr. Charles Dahl, as the trustor of the Trust.

18. Section II of the Trast is the only relevant section to evaluate because the settlor

is still alive. In relevant part, the section states:

During the. lifetime of the Settlor, the Investment Trustee shall pay over or apply the net income and principal of the Trust Estate to such extent, including. the whole thereof, and in such amounts and propOliions, including all to one to the exclusion of others, and at such or times as the Investment Trustee, in the exercise of his sole and absolute discretion shall determine, to or for the benefit of the Beneficiaries; provided., however, that during the life of Settlor, at least thirty (30) days prior to making any payment or application of income or principal to any beneficiary other than the Settlor and Settlor may veto ("Veto") any such intended pay by directing the Investment Trustee in writing not to make the payment or application, and, if such Veto is 'exercised by Settlor, the Investment Trustee shall not make the intended payment or application to a beneficiary other than the Settlor . . . . Without in any way limiting the sole and absolute discretion of the Investment Trustee hereunder and without imposing any fiduciary duty to do so, it would be in keeping with Settlor's current intention that the Investment Trustee consider distributions to· or for the benefit of Settlor during Settlor's lifetime to allow the Settlor to maintain Settlor's lifestyle as it existed at the time of creation of the Trust taking into account resources and income available for or by Settlor .... (Emphasis added)

19. There could not be a clearer expression that any and all distributions to the

beneficiaries under the Trust were in the absolute discretion of the Trustee, even as to Dr.

Charles Dahl. There is no claim in this case that the Investment Trustee abused his discretion in

failing to make distributions to the Plaintiff, therefore any right of the Plaintiff to a distribution

7

nn2726

of the Trust assets must be made from the four corners of the Trust and clearly, Plaintiff had no

fixed right to receive any distribution of Trust assets at any time.

20. Summary judgment in favor of the Defendants against the Plaintiff is therefore

appropriate on this claim.

VII. The Trust is Irrevocable

21. The gravamen of the Plaintitr s case revolves around the issue of whether the

Trust is, as it claims, irrevocable; or, as Plaintiff claims, is revocable ..

22. lfthe Trust is construed as "inevocable," it simply does not matter if the Plaintiff

is a setilor or not. The paliies have' supplied the Court with only one relevant mechanism by

which settlors of an irrevocable trust have the light or power to amend, alter or revoke the same.

The mechanism is contained in U.c.A. 75-7-411 (2004 as Amended) which provides:

8

Modification or termination· of noncharitable irrevocable trust by consent. (1) 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. '. . (2) A

noncharitable, irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary

to achieve any material purpose of the trust. Anoncharitable, irrevocable trust

may be modified upon consent of all of the beneficiaries if the court

concludes that modification is not in consistent with a material purpose of the

trust. : . (5) If not c all of the beneficiaries consent to a proposed modification or

termination of the trust under Subsection (1) or (2), the modification or.

termination may be approved by the comi if the court is satisfied that: (a) if all of

the beneficiaries had consented, the trust could have been modified or terminated

under this section; and (b) the interests of a beneficiary who does not consent will

be adequately protected. (Emphasis added)

on "')7,)1::) i " ~ ( . \.

23. Therefore, if the Court construes the Trust as ilTevocable, the Plaintiff would have

a right to alter, amend or revoke the Trust only if all of the other beneficiaries agreed. That class

includes Charles F. Dahl, the parties' minor children (of whom Dr. Dahl has custody) and yet to

be named' charitable organizations for whom a representative does not exist. Clearly, Dr. Dahl

would not agree for himself and the children and therefore, the ~laintiff has no rights to the

corpus or proceeds of the Trust as a settlo!" or beneficiary if the Trust is construed as irrevocable.

Further, she would have no rights to unilaterally alter, amend or revoke the Trust.

24. Only if the Trust is adjudicated to be revocable, would thePJaintiffhaveany right

as a settlor. The only available statuto"ry remedy that Plaintiff has cited is D.C.A 75-7-605(2),

which states:

(1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust .... (2) If a revocable trust is created or

funded by more than one settlor: (a) to the extent the trust consists of community

property, the trust may be revoked by either spouse acting alone but may be

amended only by joint action of both spouses; and (b) to the extent the trust

consists of property other than community propeliy, each settlor may revoke or

amend the trust with regard to the porti,on or"the trust property attributable to that

settlor's contribution. (Emphasis added)

The first condition precedent contained in the statute cannot be met in this case because the trust

expressly provides that it is irrevocable. However, it is clear that the only way the Plaintiff could

establish a right under the statute is by a determination that the Trust did not expressly provide

that was irrevocable or have this Court somehow made a detel111ination of revocability.

25. The Court determines that the Trust in this case c~early purports to be irrevocable

(See Trust, Section 5.5, Exhibit "B"). There is not a single paragraph that rev e a 1 s t hat the

Defendant Charles Dahl has any right under the language in the Trust to revoke, amend or alter

the same outside of the power given to every settlor of an irrevocable trust by Utah statute.

9

Further, there is no language in the Trust document that can reasonably be interpreted as an

attempt by the settlor, to endow himself with impermissible rights with regard to termination,

amendment or alteration of the Trust.

26. The only language relied upon by the Plaintiff, as to the retained power to alter or

amend the Trust is found in Section 5.5, lmder a section heading entitled "Trust Irrevocable."

The language is as follows:

Trust Irrevocable. The Trust hereby established is .irrevocable. Settlor reserves

any power whatsoever to alter or amend any of the terms or provisions hereof. (Emphasis added)

.27. As.a matter of law the Court determines that the cited language does not create

any general right to amend or. alter the terms of the Trust; rather, the language simply preserves

the rights of the settlor granted by statute, to amend, alter or tei"minate the irrevocable trust. As

set out above, U.C.A. 75-7-411 (2004 as Amended) allows a settlor to revoke or modify an

irrevocable trust if he or she has the consent of the settlor and all of the beneficiaries. The cited

lan~uage only preserves the rights of the Settlor granted under the statute conceming irrevocable

trusts.

28. The facts are undisputed that in the entire history of the Trust, the settlor has

never attempted to amend, modify, revoke or alter the Trust. To construe the cited language as

containing a general power to alter or amend, the Court would have to disregard the clear title

and name of the Trust, the provisions clearly declaring itself to be irrevocable and even the

section heading where the language was found that clearly states the Trust is irrevocable.

29. Further, there is no section in the Trust document titled or designated

10

002723

"revocation," "amendment" or "alteration." The only language that refers to any retention of

any power to amend and modify is under the section entitled "Trust Irrevocable" as set out

above.

30. 'I/[T]he paramount rule of construction in determining the meaning of a trust

provision is that the grantor's intent is controlling."'in re Carl }.;fcDonald Revocable Trust Dated

October i, ]979, 942 S.W.2d 926, 931 (Mo. App. S.D. 1997) (citation omitted). "In determining

the intent of a grantor, courts are to consider the trust instrument as a whole and are not to give

any clause in the trust undue preference. II ld. Absent an1biguity, the intent of the settlor is

determined fi'om the four corners of the trust instrument. Commerce Bank, N.A. v. Blasdel, 141

S.W.3d 434, 444 (Mo. App. W.D. 2004). lilt is [notJ this cOUli's function to rewrite a [trustJ in

order to effectuate a more equitable distribution or to impart an intent to the testatrix that is not

expressed in the [trust]." 2 Estate o.l Pettit v. Levine, 657 S. W.2d 636, 643 (Mo. App. E.D.

1983). See also, Kline v. Utah Deptt o.lHealth, 776 P.2d 57,61 (Utah App.1989).

31. The manner in which the trust was written and organized reveals that it was the

intent of the settlor f01' the Trust to be irrevocable. A statement that "any" rights existing after

the creation of the irrevocable trust, are not extinguished, is entirely consistent with statute.

Further, there have been no amendments, alternations or modifications in the life of the Trust

attempted or completed.

32. Plaintiff claims three factual bases for the assertion that the Trust is in fact

revocable. First, the Plaintiff cites the language in the Trust referring to an1endments, which

issue has been addressed above. Second, the Plaintiff cites the right of the settlor to veto a

distribution. There are simply no cases that have held that a right to veto a distribution

constitutes an amendment, alteration, termination of an in-evocable trust or is inconsistent with

an irrevocable tmst. In fact, the irrevocable trusts created by the specialists in the area and

11

002722

provided for in form books, include the veto power. Third, the Plaintiff cites the one instance

where property was deeded in and out of the trust.

33. The third and last ground relates to a transaction detailed in Paragraphs 27

through 32 of the Amended Complaint. In summary, the Plaintiff contends that the Investment

Trustee conveyed the Vintage Drive property from the TrLlst to Charles Dahl arid then that

Charles 'Dahl obtained a loan on the same and transferred the property back into the Trust.

34. Accepting the allegations as true, there is sil':np!y nothing about the transaction

that would. warrant treating the trust as revocable. The Investment Trustee, in lieu of making a

distribution, had a perfect right to convey a trust asset to ,a beneficiary to, obtain a loan or any

other kind of benefit and did not have to require the property to be reconveyed back to the Trust.

The Investment Trustee could have deeded the Vintage Drive property to Charles Dahl or other

beneficiary outright.

35. ATeview of the provisions of the Trust clearly support the Defendants' position.

Section 4.1.2 of the Trust, Exhibit "B" hereto in describing the duties of the Investment Trustee,

grant him "exclusive power" to vote any stock and to make all investment decisions regarding

the assets of the trust estate. Likewise the same paragraph gives the Investment Trustee

"exclusive power" to payor distribute trust assets or to hold them over. In describing his power,

the Paragraph states that the decision to distribute, manage and hold over assets is to be done "in

the exercise of [his] sole and absolute discretion." FUliher that same latitude of discretion

applies to the determination ofthe need of beneficiaries of the Trust.

36. Paragraph 5.3.5 generally and sub-pmi (a) thereof gives the same discretion with

regard to the administration and management of the Trust assets. Of critical importance to the

fact scenario raised by the Plaintiff, sup-paragraphs (g) and (h) provide:

12

002721

(g) Sale and Disposition. To hold property belonging to any trust in the name

of nominees or in Trustee's names, with or without designation of Trustee

capacity.

(h) Dealing with Assets. T in the name of nominees or in Ttrustee's names,

with or without designation of Trustee capacity.

37. Paragraph 5.3.5(0) waives the "Prudent Person" rule for the Investment Trustee.

Section II of the Trust gives the Investment Trustee discretion as to how, when and in what

method and amount the Trust assets are to be hold or distributed. There is no question that the

transaction was allowed and proper under the terms of the Trust.

38. The Comi determines that it was the Trustee who conveyed the asset consisting of

I

the Vintage Drive property out of the Trust. Again, conveyance of any Trust asset, tmder any

terms and conditions is within his power. Second, the Trustee could agree with Dr. Dahl to give

. him the property or simply allow him to use it as collateral for a loan, which is the equivalent of

a distribution. As long as the Trustee is the one conveying and distributing, the terms of the

Trust are met. Third, the fact that Dr. Dahl reconveyed the property; with the encumbrance to

the Trust, is within his right as a Settllor of the Trust. Simply, the Defendant Charles Dahl did

not convey the propeliy out of the Trust, the Investment Trustee did. The argument that trust

assets are being used to benefit the beneficiaries is a statement of the obvious and is the intent

and purpose of the Trust. Every transaction pointed to by the Plaintiff is within the scope and

breadth of the explicit language of the Trust and therefore provides no basis to convert the nature

of the Trust.

39. The Comi notes that commentators are unanimous in noting that where there is a

question of whether the settlor intended to reserve the right to revoke, a statement that the trust is

irrevocable will control. George G. Bogert, et aL, The Law afTrusts and Trustees § 992 (Rev. 2d

ed.2005).

13

OO~7?O

40. It would be the height ofumeasonability to construe a trust that is titled

"irrevocable" and contains no sections entitled "amendment," "modification," "revocation" to be

revocable. The only sentence in the 21 page trust that the Plaintiff can hold on to is under a

. section heading restating that the Trust is irrevocable and is preceded by a sentence that again

states that the Trust is irrevocable.

41. The most compelling argument however is based upon statute. Section 5.4.6 of

the Trust provides as follows:

. Governing Law. The validity, construction and effect of the provisions of this . Agreement in all respects shall be governed and regulated according to and by the laws ofthe State of Nevada .... '.

'. . .

42. As noted by the. Court in lnnerlight; Inc. v. Matrix Oro'up, LLC, 2009 UT 31, .

choice of law and choice of forum provisions contained in contracts and legal documents are

enforceable.

43. The applicable Nevada statute is dispositive. NRS 163.560 is entitled "Irrevocable

trust not to be construed as revocable." It states, "[i]f the settlor of any trust specifically

declares in the instrument creating the trust that such trust is irrevocable it shall be

irrevocable for all purposes, even though 'the settlor is also the beneficiary of such trust."

Clearly, under the applicable law both in Nevada and Utah, the Trust is irrevocable and the

Defendants are entitled to summary judgment thereon,

VIII. PJaintiff's.Right to an Accounting.'

44. Plaintiffs Second Cause of Action is for an Accounting. However, the Plaintiff

has not demonstrated a status that would justify an accounting. She is at best a discretionary

beneficiary and Settlor. However, only if the Trust were to be determined to be revocable would

she have any rights to. the corpus of the trust and that right would extend only to her share of the

home and property she conveyed into the trust nearly ten years ago.

14

0027.19

45. Further, the Plaintiff has not asserted that the discovery undertaken did not satisfy

a request for a general accounting. Finally, As it relates to the right of the Plaintiff as a

discretionary beneficiary to an accounting, Section 5.3.1 Oof the Trust states, in relevant part, as

follows:

Discretion not to inform or account to discretionary beneficiaries. During the

shorter of the Settlor's lifetime ... the Trustee shall not be required to inform any

beneficiary(other than the Settlor) who is not entitled to a mandatory distribution

of income or principal from the trust on an annual or more frequent basis (I) of

the trust; (ii) a court in which the trust may be registered; or (iii) the Trustee's

name and address. In addition, during the shorter of the Settlor's lifetime ... the

Trustees shall not be required to provide any beneficiary (other than the

Settlor) who is not entitled to a mandatory distribution of income and

principal from the trust on an annual or more frequent basis with a copy of

the terms of the trust and shall not be required to provide a statement of

accounts of the trust. (Emphasis added)

46. The above cited provision is compatible with the statute addressing the same

issue. D.C.A. 75-7-811 (2010 as Amended) provides, in relevant part:

15

(1) Except to the extent the terms of the trust provide otherwise, a trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, and unless otherwise provided by the terms of the trust a trustee shall promptly respond to a qualified beneficiary's request for information related to the administration of the trust. (2) Except to the extent the terms of the trust provide otherwise, a trustee: (a) upon request of a qualified beneficiary, shall promptly furnish to the beneficiary a copy of the portions of the trust instrument which describe or affect the beneficiary's interest; (b) within 60 days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee's name, address, and telephone number; (c) within 60 days after the date the trustee acquires knOWledge of the creation of an irrevocable trust, or the date the trllstee acquires knowledge that a formerly revocable trust has become inevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust's existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument, and of the right to a trustee's report as provided in

.... 002718

Subsection (3); and (d) shall notify the qualified beneficiaries ill advance of any change in the method or rate of the trustee's compensation ...

47. The Court therefore determines that the Plaintiff does not have a rightlo an

accounting and that summary judgment on the issue is appropriate.

IX. Ruling

48. Based upon the absence a material issues offact and the right of the Defendants

. to judgment, the COUli grants the Defendants' Motion for Summary Judgment as toboth counts

of the Complaint.

The Clerk of the Court is instructed to enter the Order granting Defendants' Motion for

SmnniarY Judgment as submitted by Rosemond G. Blakelock,Esq.,co1.IDsel for Defendants."

5i':'/- /' /' Dated thisL day of ;-iICl y/ ,2011.

Fourth Judicial District COUli

A certificate of mailing is on the following page.

16

002717

CERTIFICATE OF NOTIFICATION I certify that a copy of the attached document was sent to the following people for case 090402989 by the method and on the date specified.

MAIL: ROSEMOND V BLAKELOCK 1832 N 1120 W PROVO, UT 84604 MAIL: STEVE S CHRISTENSEN 136 E STEMPLE STE 1400 SALT LAKE CITY UT 84111-2142

Date:

Deputy Court Clerk

Page 1 (last)

. 0027.16

ROSEMOND G. BLAKELOCK, #6183 Attorneys for Defendants . 1832 North 1120 West Provo, Utah 84604 Telephone: (801) 356-1720

IN THE FOURTH JUDICIAL DISTRICT COURT

UTAH COUNTY, STATE OF UTAH

KlMDAHL, )

FU .. EO

FEB.272012 4TH DISTRIcr W

8TATEOFlJr.ri:. c UTAHCOII~

Plaintiff, ) FINDINGS OF FACT AND CONCLUSIONS ) OF LAW, AND ORDER GRANTING

vs.

C. ROBERTD.A.I1L, as Investment Trustee Of the DAHL FAMILY IRREVOCABLE .

. TRUST (10/23/02); MARLETTE and CHARLES F. DAHL,

Defendants.

) .DEFENDANT'S MOTION. FOR . ) SUMMARY JUDGMENT AND . ) DENYING PLAINTIFF'S MOTION ) FOR SUMMARY JUDGMENT ) ) ) ) )

Civil No.: 090402989 Judge: Lynn Davis

This matter came before the Court for oral arguments on August 31, 2011. At the end of

the argument, each counsel was instructed to prepare an order consistent with their respective

positions.

The Court notes that the Dahls have been involved in an endless divorce for many years.

The claim in this case, which involves, inter alia, the marital home of the parties, should have

been resolved in the pending divorce. For reasons totally unclear to this judge, these claims were

not adjudicated in the ongoing, pending divorce action. Had Plaintiff sought relief in the divorce

action, then the equitable powers of the Court could have applied. Here, no equitable powers can

be applied and the Court must rule as a Ihatter oflaw.

The Court. Having carefully examined the memoranda of law, the arguments of counsel

and having exa.n'rined the proposed orders of counsel hereby issues the following;

Page 1 of 18

002962·

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Law Applicable to Summary Judgment Determinations.

1. The Court fmds that in keeping with the clear language of Rule 56( c) of the Utah

Rules of Civil Procedure and interpreting case law, suIl1l1iary judgment is appropriate if there is

'<no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a

matter of law." Cabaness v. Thomas, 2010 UT 23, PI8, 232. P.3d 486 (omission in original)

(quoting Utah R. Civ. P. 56(c). A summary judgment movant, on an issue where the nonmoving

party will bear the burden of proof at trial, may satisfY its burden on summary judgment by

showing, by reference to the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, that there is no genuine issue of material fact. Upon

such a showing, whether or not supported by additional affirmative factual evidence, the burden

then shifts to the nonmoving party, who .may not rest upon the mere allegations or denials of the

pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Orvis v.

Johnson, 2008 UT 2, P 18, 177 P.3d600 (emphasis in original) (citations and internal quotation

marks omitted). Ail evidence is viewed in the light most favorable to the party opposing

summary judgment," Doctors' Co. v. Drezga, 2009 UT 60, P 9, 218 P.3d 598.

II. Declaratory Judgment Determination

2. The Court finds that in Count I of her Amended Complaint, the Plaintiff has

asked for declaratory judgment concerning the parties' rights and duties under the Irrevocable

Trust (See Amended Complaint, paragraphs 43-53).

3. The Court finds that conditions which must exist before a declaratory judgment

action can be maintained are: (1) a justiciable controversy; (2) the interests of the parties must be

adverse; (3) the party seeking such relief must have a legally protected interest in the

controversy; and (4) the issues betWeen the parties involved must be ripe for judicial

determination. Lyon v. Bateman, 228 P.2d 818, 820 (Utah 1951). See, e.g., Backman v. Salt Lake

County, 375 P.2d 756 (Utah 1962); Parker v. Rampton, 497 P.2d 848 (Utah 1972); Baird v.

Pag~ 2 of 18

002·961

State, 574 P.2d 713 (Utah 1978); Jenkins v. Swan, 675 P.2d 1145 (Utah 1983). Failure to meet

any of the foui requirement requires the dismissal of the petition for declaratory judgment. Boyle

v. National Union Fire Ins. Co., 866 P.2d 595,598 (UtahApp. 1993).

4. However, even if declaratory judgment is appropriate in this case, the court still

has disc;:retion and may thus decline to grant a request for declaratory judgment.· The Utah

Declaratory Judgment Act "gives a trial court discretion to either gnint or deny a party's

declaratory judgment action by virtue of the statute's use ofthe word 'may.'" Strmvberry Electric

Service District v. Spanish Fork City, 918 P.2d 870,882 (Utah 1996). In Boyle v. National Union.

Fire Ins. Co., the coUrt held that if a declaratory judgment under Section 78-33-.6 of the Utah

Code would not terminate the uncertainty or controversy giving rise t~ the proceeding, then the

court may decline to grant it. 866 P.2d 595,598 (Utah App. 1993).

5. In fact, the Court finds that the current statutory version of the declaratory

judgment act, U.C.A. 78B, 6-404· (2008 as Amended) explicitly provides that "[tJhe court may

refuse to render or enter a declaratory judgment or decree where a judgment or decree, if

rendered or entered, would not terminate the uncertainty or. controversy giving rise to the

proceeding." In this case, even if the Court were to declare the Plaintiff as a "settlor" and the

Trust as "revocable," it would not terminate the controversy or resolve the dispute between the

parties.

6. Accordingly, this Court declines to undertake the seemingly meaningless task of

declaring the rights and duties of the parties to this action.

III. Existence of Material Statements of Fact

7. The Court finds that Rule 7(c)(3)(B) of the Utah Rules of Civil Procedure clearly

states that:

A memorandum opposing a motion for summary judgment shall contain a verbatim restatement of each of the moving party's facts that is

Page 3 of 18

controverted, and may contain a separate statement of additional' facts in dispute. For each of the moving party's facts that is controverted, the opposing party shall provide an explanation of the grounds for any dispute, supported by citation to relevant materials, such as affidavits or discovery materials. For any additional facts set forth in the opposing memorandum, each fact shall be separately stated and numbered and supported by citation to supporting materials, such as affidavits or discovery materials. (Emphasis added)

8. In this case, the Court finds that the Plaintiff did not comply with the Rule and did

not contest the Statement of Undisputed Facts contained in the Defendant's original

memorandum in support of summary judgment. Therefore, the same are deemed admitted. The

Court finds that the Statement of Additional Facts contained in the Plaintiff's response does not

raise genuine issues of material fact.

IV. Plaintiff's Request for Additional Discovery.

9. The Court fmds that although not mentioned specifically by the Plaintiff, the

Plaintiff seems to be relying on Rule 56(f) of the Utah Rules of Civil Procequre for the ~ght to

conduct further discovery in this case before being required to respond to the Defendants'

motion. Rule 56(f) of the Utah Rules of Civil Procedure provides that:

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

10. The Court finds that the record in this case establishes that the Plaintiff sent a

a thorough set of requests for admission, interrogatories and requests for production. of

documents that resulted in a massive production that is su.rrtmarized on the various motions

relating to discovery. The Plaintiff has failed to file the required affidavit outlining specifically

what discovery was needed in relation to the issues raised in the summary judgment motion.

Page 4 of 18

~.~ 002959

Accordingly, because the required affidavit under Rule 56(f) was not filed with the responsive

memorandum of the Plaintiff, no reliefis available under the Rule .

. 11. Further, the Court finds that under Rule 56(f) a trial court is bound to a standard

of responsibility. Overstock com, Inc. v. SmartBargains, Inc., 2008 ur 5~, ~ 20, 192 P.3d 858

(quoting Crossland Sav: v. Hatch, 877. P.2d 1241, 1243 (Utah 1994»). In Overstock com, the . .

Utah Supreme Court listed some of the relevant considerations in determ:ining whether the grant

of a rule 56(f) motion is warranted:

ld.

(1) an examination of the partY's rule 56(£) affidavit to deteimlne wh.ether ·.the . discovery sought will uncover disputed material facts that will prevent the grant of summary judgment or if the party requesting discovery is simply on a "fishing expeciition," (2) whether the party opposing. the summary judgment motion. has had adequate time to conduct discovery and has been conscientious in pursuing such discovery, and (3) the diligence of the party moving for summary judgment in respondingl066 to the discovery requests provided by the party opposing sumtnary judgment.

12. The Court finds that without the required .affi.davit, itis impossible for the Court·

to make a determination as to what discovery has been conducted, th~ need for other discovery

in light of the issues raised in the motions for summary judgment and other relevant inquiries.

Accordingly, the implies request for additional time to conduct discovery is denied.

v. Request for a Determination that the Trust isNulI and Void.

13. The Court finds that in paragraph 47 of the Amended Complaint, the Plaintiff

seeks a determination that the Dahl Family Irrevocable Trust (10123/02), is null and void.

Nowhere in the Amended Complaint does the Plaintiff provide a viable legal theory upon which

the Court could rule that the Trust, without any further factual determinations as required by the

Declaratory judgment Act, is null and void. The Plaintiffstheory appears to be that if the Trust

Page 5 of 18

nn')()~O

was declared void, she would have restored to her, the interest in the real property that she

conveyed away ten years ago.

14. However, the Court finds that "null and void" is not a formal cause of action.

There is no material factual allegations in the Amended Complaint that accuse the Defendants of

fraud, mistake, duress, undue influence, illegality or otherwise contend that the trust is violative

of public policy or contrary to a law or statute. 1 The only allegation that the Plaintiff has alleged

is that the language in the Trust has allowed the Defendant Charles Dahl to exercise such control

over the trust that the Court should therefore interpret the Trust as revocable. Such a request is

not grounds to contend that this Court has a factual or legal basis to adjudge the Trust as void.

15. The Court fmds that under the law set out in Ockey v. Lehmer, 2008 UT 37, 189

P .3rd 51, it is clear that none of the allegations in the Amended Complaint rise to the level

required for a determination that the Trust is null and void. In general, the difference between

void and voidable contracts is whether they offend public policy. Contracts that offend an

individual, such as those arising from fraud, misrepresentation, or mistake, are voidable. Only

contracts that offend public policy or harm the public are void ab initio. . .. For a contract to be

void on the basis of public policy, there must be a showing free from doubt that the contract is

against public policy. Id. PP 18-19, 21 (footnotes and internal quotation marks omitted).

·16. The Court fmds therefore there are no material issues of fact that would preclude

However, even if the Plaintiff were to make such a claim, the statute oflimitation has passed on all causes of action related to those theories. U. c.A. 78B-2-305 (2010 as Amended) limits actions based the grounds of fraud or mistake to three years. 78B-2-307 (2010 as Amended) limits actions based upon a contract, obligation, or liability not founded upon an instrument in writing as well as other actions not detailed in the statute to fouryears. 78B-2-309 (2010 as Amended) limits actions based upon any contract, obligation, or liability founded upon an instrument in writing, to six years.

Page 6 of 18

a determination that the Trust in question is void and summary judgment is granted to the

Defendants·on that point.

VI. Plaintiff's Request for a Determination That she has an Immediate Interest in the Trust.

17. The Court finds that in paragraph 45 of the Amended. Complaint, the Plaintiff

requests that the Court adjudge by declaratory judgment that she has an immediate interest in the

corpus of the Trust. The undisputed facts reveal that the Plaintiff has absolutely no factua] or

legal basis under the language in the Trust to contend that she is entitled to a detennination that

she has an interest in the corpus of the Trust based upon the failure of the trustees of the Trust to

distribute funds to her. Under the terms .of the Trust, the Plaintiff w~snot entitled to any fixed

sUm and any distribution to the Plaintiff would have been in the discretion of the Trustee and

then survive the "veto" right of Dr. Charles Dahl, as the trustor of the Trust.

18. The Court finds that section IT ofthe Trust is the only relevant section to evaluate

because the settlor is still alive. In relevant part, the section states:

During the lifetime of the Settlor, the Investment Trustee shall pay over or apply the net income and principal of the Trust Estate to ·such extent, including the whole thereof, and in such amounts and proportions, including all to one to the exclusion of others, and at such or times as the Investment Trustee, in the exercise of his sole and absolute discretion shall determine, to or for the benefit of the Beneficiaries; provided., however, that during the life of Settlor, at least thirty (30) days prior to making any payment OT. application of income or principal to any beneficiary other than the Settlor and Settlor may veto ("Veto") any such intended pay by directing the Investment Trustee in writing not to make the payment or application, and, if such Veto is exercised by Settlor, the Investment Trustee shall not make the intended payment or application to a beneficiary other than the Settlor . . . . Without in any way limiting the sole and absolute discretion of the Investment Trustee hereunder and without imposing any fiduciary duty to do so, it would be in keeping with Settlor's current intention that the Investment Trustee consider distributions to or for the benefit of Settlor during Settlor's lifetime to allow the Settlor to maintain Settlor's lifestyJe as it existed at the time of creation of the Trust taking into

Page 7 of 18

, nn'1or.;-C:

account resources and income available for or by Settlor .... (Emphasis added)

19. The Court finds that there could not be a clearer expression that any and all

distributions to the beneficiaries under the Trust were in the absolute discretion of the Trustee,

even as to Dr. Charles Dahl. There is no claim in this case that the Investment Trustee abused

his discretion in failing to. make distributions to the Plaintiff, therefore any right of the Plaintiff

to a distribution of the Trust assets must be made from the four comers of the Trust and clearly,

Plaintiffhad no fixed right to receive any distribution of Trust assets at any time.

20. Th Court concludes therefore, that Summary judgment in favor of the Defendants

against the Plaintiff is therefore appropriate on this claim.

VII. The Trust is Irrevocable

21. The Court finds that the gravamen of the Plaintiff sease revolves around the issue

of whether the Trust is, as it claims, irrevocable; or, as Plaintiff claims, is revocable.

22. The Court fmds that if the Trust is construed as "irrevocable/' it simply does not

matter if the Plaintiff is a settlor or not. The parties have supplied the Court with only one

relevant mechanism by which settlors of an irrevocable trust have the right or power to amend,

alter or revoke the same. The mechanism is contained in U.C.A. 75-7-411 (2004 as Amended)

which provides:

Modification or terminatioll of nonchari~able irrevocable trust by consent.

(1) 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. . . (2) A

noncharitable, irrevocable trust may be terminated upon consent of all of the

beneficiaries if the court concludes that continuance of the trust is not necessary

to achieve any material purpose of the trust. A non charitable, irrevocable trust

may be modified upon consent of all of the beneficiaries if the court

Page 8 of 18

rl 002955

concludes that modification is not inconsistent with a material purpos~ of the trust .. .

(5) If not all of the beneficiaries consent to a proposed modification or

termination' of the trust under Subsection (1) or (2), the modification or

termination may be approved by the court if the court is satisfied that: (a) if all of

the beneficiaries had consented, the trust could have been modified or terminated'

under this section; and (b) the interests of a beneficiary who does not consent will be adequately protected. (Emphasis added)

23. Therefore, the Court finds· that if it construes the Trust as irrevocable, the Plaintiff

would have a right to alter, amend or revoke the Trust only if all of the other beneficiaries

agreed. That class includes Charles F. Dahl, the parties' minor children (of whom Dr. Dahl has

custody) and yet to be named charitable organizations for whom a representative does not exist.

Clearly, Dr. Dahl would not agree for himself and the children and therefore, the Plainiiffhas no

rights to the corpus or proceeds of the Trust as a settlor or beneficiary if the Trust is construed as

irrevocable. Further, she would have no rights to unilaterally alter, amend or revoke the Trust.

24. The Court finds that only if the Trust is adjudicated to be revocable"would the

Plaintiff have any right as a settlor. The only available statutory remedy that Plaintiff has cited

is D.C.A. 75-7-605(2), which states:

(1) Unless, the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. ... (2) If a revocable trust is created or

funded by more than one settlor: (a) to the extent the trust consists of community

property, the trust may be revoked by either spouse acting alone but may be

amended only by joint action of both spouses; and (b) to the extent the trust

consists of property other than community property, each settlor may revoke or

amend the trust with regard to the pOI:tion of the trust property attributable to that

settlor's contribution. (Emphasis added)

The first condition precedent contained in the statute cannot be met in this case because the trust

expressly provides that it is irrevocable. However, it is clear that the only way the Plaintiff could

Page 9 of 18

establish a right under the statute is by a detemlination that the Trust did not expressly provide

that was irrevocable or have tbisCourt somehow made a determination of revocability.

25. The Court finds that the Trust in this case clearly purports to be irrevocable

(See Trust, Section 5.5, Exhibit "B"). There is not a single paragraph that rev e a 1 s t hat the

Defendant Charles Dahl has any right lUlder the language in the Trust to revoke, amend or alter

the same outside of the power given to every settlor of an irrevocable trust by Utah statute.

Further, there is no language in the Trust document that can reasonably be interpreted as an

attempt by. the settlor, to endow himself with impermissible rights with regard to termination,

amendment or alteration of the Trust.

26. The Court :finds that the only language relied upon by the Plaintiff, as to the

retained power to alter or amend the Trust is foun4 in Section 5.5, under a section heading

entitled "Trust Irrevocable." The language is as follows:

Trust Irrevocable. The Trust hereby established is irrevocable. Settlor reserves

any power whatsoever to alter or ariJ.end any of the terms or provisions hereof

(Emphasis added)

27. As a matter oflaw the Court detemlines and concludes that the cited language

does not create any general right to amend or alter the terms of the Trust; rather, the language

simply preserves the rights of the settlor granted by statute, to ::unend, .alter or terminate the

irrevocable trust. As set out above, U.C.A. 75~7-411 (2004 as Amended) allows a settlor to

revoke or modify an irrevocable trust if he or she has the consent of the settlor and all of the

beneficiaries. The cited language only preserves the rights of the Settlor granted lUlder the statute

concerning irrevocable trusts.

28. The Court finds that the facts are undisputed that in the entire history of the Trust,

the settlor has never attempted to amend, modifY, revoke or alter the Trust. To construe the cited

language as containing a general power to alter or amend, the Court would have to disregard the

Page 10 of 18

~ 002[153

clear title and name of the Trust, the provisions dearly declaring itself to be irrevocable and even

the section heading where the language was found that clearly states the Trust is irrevocable.

29. Further, there is no section in the Trust document titled or designated

"revocation," "amendment" or "alteration." The only language that refers to any retention of

any power to amend ~d modify is under the section entitled "Trust Irrevocable" as set out

above.

30. The Court fmds that '" [T]he paramount rule of construction in determining the

meaning of a trust provision is that the grantors intent is controlling."'In re .CarlMcDonald .

Revocable Trust Dated October 1, 1979, 942 S.W.2d 926,931 (Mo. App. S.D. 1997) (citation.

omitted) .. "In determining the intent of a grantor, courts are to consid~rthe trust instrument as a

whole and are not to give any clause in the trust undue preference.'; Id. Absent ambiguity, the

intent of the settlor is deterinined from the four comers Dfthe trust instrument. Commerce Bank ..

NA. v. Blasdel, 141 S.W.3d 434, 444 (Mo. App. W.D. 2004). !tIt is [not] this court's function to

rewrite a [ trust] in· order to effectuate a more equitable· distribution or to impart an intent to the

testatrix that is not expressed in the [trust]." 2 Estate of Pettit v. Levine, 657 S.W.2d 636, 643

(Mo. App. E.D. 1983): See also, Kline v. Utah Dep't of Health, 776 P.2d 57, 61 (Utah App.

1989).

31. . The Court finds that the manner in which the trust was written and organized

reveals that it was the intent of the settlor for the Trust to be irrevocable. A statement that "any"

rights existing after the creation of the· irrevocable trust, are not extinguished, is entirely

consistent with statute. Further, there have been no amendments; alternations or modifications in

the life of the Trust attempted or completed.

32. The Court fmds that the Plaintiff claims three factual bases for the assertion that

Page 11 of 18

I (

, nn'Q~?

the Trust is in fact revocable. First, the Plaintiff cites the language in: the Trust referring to

amendments, which issue has been addressed above. Second, the Plaintiff cites the right of the

settlor to veto a distribution. There are simply no cases that have held that a right to veto a

distribution constitutes an amendment, alteration, termination of an irrevocable trust or is

inconsistent with an irrevocable trust. In fact, the irrevocable trusts created by the specialists in

the area and provided for in fonn books, include the veto power. Third, the Plaintiff cites the

one instance where property was deeded in and out of the trust.

33. The third and last ground relates to a transaction detailed in Paragraphs 27

through 32 of the Amended Complaint. In summary, the Plaintiff contends that the Investment

Trustee conveyed the Vintage Drive property from the Trust to Charles Dahl and then that

Charles Dahl obtained a loan on the Same and transferred the property back into the Trust.

34. Accepting the allegations as true, the Court finds that there is simply nothing

about the transaction that would warrant treating the trust as revocable. The Investment Trustee,

in lieu of making a distribution, had a perfect right to convey a trust asset to a beneficiary to

obtain a loan or any other kind of ben.efit and did not have to require the property to be

reconveyed back to the Trust. The Investment Trustee could have deeded the Vintage Drive

property to Charles Dahl or other beneficiary outright.

35. The Court finds that a review of the provisions of the Trust clearly support the

Defendants' position. Section 4.1.2 of the Trust, Exhibit "B" hereto in describing the duties of

the Investment Trustee, grant him "exclusive power" to vote any stock and to make all

investment decisions regarding the assets of the trust estate. Likewise the same paragrapbgives

the Investment Trustee "exclusive power" to payor distribute trust assets or to hold them over.

In describing his power, the Paragraph states that the decision to distribute, manage and bold

Page 12 of 18

over assets is to be done "in the exercise of [his] sole and absolute discretion." Further that same

latitude of discretion applies to the determination of the need of beneficiaries of the Trust.

36. The Court finds that Paragraph 5.3.5 generally and sub-part (a) thereof gives 'the

same discretion with regard to the administration and management of the Trust assets. Of

critical importance to the fact scenario raised by the Plaintiff, sup-paragraphs (g) and (h)

provide:

(g) Sale and Disposition. To ,hold property belonging to any trust in the name

of nominees or in Trustee's names, with or without designation of Trustee capacity ..

(h) Dealing with Assets. T in the name of nominees or in Ttrustee's names,

with or without designation of Trustee capacity.

37. The Court fmds that ParagraphS.3,5(0) waives the "Prudent Person" rule for the

Investnierit Trustee. Section II of the Trust gives the Investment Trustee discretion as to how,

when and in what method and amoUnt the Trust assets are to .be hold or distributed. There is no

question that the transaction was allowed and proper under the terms of the Trust.

38. The Court determines and concludes that it was the Trustee who conveyed the

asset consisting of the Vintage Drive property out of the Trust. Again, conveyance of any Trust

asset, under any terms and conditions i~ within his power. Second, the Trustee could agree with

Dr. Dahl to give him the property or simply allow him to use it as collateral for a loan, which is

the equivalent of a distribution. As long as the Trustee is the one conveying and distributing, the

terms of the Trust are met. Third, the fact that Dr. Dahl reconveyed the property, with the

encumbrance to the Trust, is within his right as a SettlJor of the Trust. Simply, the Defendant

Charles Dahl did not convey the property out of the Trust, the Investment Trustee did. The

argument that trust assets are being used to benefit the beneficiaries is a statement of the obvious

and is the intent and purpose of the Trust. Every transaction pointed to by the Plaintiff is within

Page 13 of 18

nn'1nr.n

•

"

the scope and breadth of the explicit language of the Trust and therefore provides no basis to

convert the nature of the Trust.

39. The Court finds that Court notes that commentators are unanimous in noting that

where there is a question of whether the settlor intended to reserve the right to revoke, a

statement that the trust is irrevocable will control. George G. Bogert, et aI., The Law of Trusts

and Trustees § 992 (Rev. 2d ed. 2005).

40. The· Court finds that it would be the height of unreason ability to construe a trust

that it is titled "irrevocable" and contains no sections entitled "amendment," "modification,"

"revocation" to be revocable. The only sentence in the 21 page trust that the Plaintiff can hold

on to is under a section heading restating that the Trust is irrevocable and, is preceded by a

sentence that again states that the Trust is irrevocable.

41. The Court fmds that ·the most compelling argument however is based upon

statute. Section 5.4.6 of the Trust provides as follows:

Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall begovemed and regulated according to and by the laws of the State of Nevada .....

42. The Court finds that as noted by the Court in lnnerlight, Inc. v. Matrix Group,

LLCM 2009, UT 31, choice of law and choice of forum provisions contained in contracts anq

legal documents are enforceable.

43. The Court fmds that applicable Nevada statute is dispositive. NRS 163.560 is

entitled "Irrevocable trust not to be construed as revocable." It states, "[iJf the settlor of any

trust specifically declares in the instrument creating the trust that such trust is irrevocable

it shall be irrevocable for aU purposes; even though the settlor is also the beneficiary of

such trust." Clearly, under the applicable law both in Nevada and Utah, the Trust is irrevocable

and the Defendants are entitled to summary judgment thereon.

Page 14 of 18

no')o/Q

j

VIII. Plaintiff's Right to an Accounting.

44. The Court fInds that the Plaintiff's Second Cause of Action is for an ACC01ll1ting.

However, the Plaintiff has not demonstrated a status that would justifY an accounting. She is at . .

best a discretionary beneficiary and Settlor. However, only if the Trust were to be determined to

be revocable would she have any rights to the corpus of the trust and that right would extend

only to her share of the home and property she cOllveyedinto the trust nearly ten years ago.

45. Further, the Court fInds that the Plaintiff has not asserted that the discovery

undertaken did not satisfY a request for a general accounting. Finally, As it relates to the right

of the Plaintiff as a discretionary beneficiary-to an accounting, Section 5.3.10 of the Trust states,

in relevant part, as follows:

Discretion not to inform or account to discretionary beneficiaries. During the shorter of the Settlor's lifetime ... the Trustee shall not be required to inform any beneficiary( other than the Settlor) who is not entitled to a mandatory distribution

of income or principal from the trust on an annual or more frequent basis (1) of the trust; (ii) a court' in which the trust may be registered; or (iii) the. Trustee's name arid address. In addition, during the shorter of the Settlor's lifetime ... the Trustees shall not be required' to provide any beneficiary (other than the Settlor) who is not entitled to a mandatory distribution of income and. principal from the trust onan annual or more frequent basis with a copy of the terms of the trust and shall not be required to provide a statement of accounts of the trust. (Emphasis added)

46. The Court finds that the above cited provision is compatible with the statute

addressing the same issue. U.C.A. 75-7-811 (2010 as Amended) provides, in relevant part:

(1) Except to the extent the terms of the trust provide otherwise, a trustee shall keep the qualified benefiCiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, and unless otheIWise provided by the terms of the trust a trustee shaIl promptly respond to a qualified beneficiary's request for information related to the administration of the trust.

Page 15 of 18

(2) Except to the extent the tenDS of the trust provide otherwise, a trustee: (a) upon request of a qualified beneficiary, shall promptly furnish to the beneficiary a copy of the portions of the trust instrument which describe or affect the beneficiary's interest; (b) within 60 days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee's name, address, and telephone number; © within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust1s existence, of the identity of the settlor or settlors, of the right to request a copy of the trust instrument, and of the right to a trustee's report as provided in Subsection (3); and (d) shall notify the qualified beneficiaries in advance of any change in the method or rate· of the trustee's compensation ...

47. The Court therefore concludes that the Plaintiff does not have a right to an

accounting and that summary judgment on the issue is appropriate.

48, The Court concludes that, based upon the absence of material issues of fact and

the right of the Defendants, to relief, that the Court should grant the Defendant's Motion for

Summary Judgment, as to both counts of the Complaint.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, as set forth above

the Defendant's Motion for Summary Judgement on both counts of the Complaint is hereby

granted.

Based upon the Findings of Fact and Conclusions of Law, as set forth above the

Page 16 of 18

0029~7

Plaintiff's Motion for Sumniary Judgment is hereby Denied.

DATED and signed this ZZZ?d~y of h-,b/Vi:?ry" , 2012. 7

BY THE COURT: ..

Page 17 of 18

~! 0029~6

MAILThTG CERTIFICATE

I certify that a copy of the foregoing was mailed, postage prepaid to the

following, on thec:?~ day of February 2012, by first class mail, postage prepaid, to the

following:

Steve S. Christensen, Esq. Christensen Thornton PLLC

136 East South Temple, Suite 1400

SLC, UT 84111

RULE 7 NOTICE

You will please take notice that the undersigned attorney for Defendant will submit the above

and foregoing Order to the Court for signature. Pursuant to Rule 7 (£)(2) of the Utah Rules of

Civil Procedure any objection as to the fonn of the order should be filed with the Court, within

five days after service upon you ofthis notice.

~ 4b DATED·this~ day of _____ ,' 2012 . .. -..,~ ....... ~ ... -............ - .. ~ ...... ..

C","""- /

~;"

L__ /"'ff/ /'" ~~

--==~-~--~~~~---

Page 18 of 18

ADDENDUM Exhibit "B"-.. Dahl Family Irrevocable Trust _ .

THE DAHL FAMILY IRREVOCABLE TRUST

This Agreement, dated ~ -z, ~ . , 2002, is botween Charles F. Dahl (hereinafter referred to as the "Settlor"), C.Robert Dahl (hereinafter referred to as the "Investment Tmstee") and Nevada· State Bank, a Nevada corporation (hereinafter referred to as the "Qualified Person Tn/steen) (both the Investinent Trustee and the Qualified Person Trustee shall hereinafter collectively be referred to as the "Trusteesll

),

The name of this Trust shall be The Dahl Family Irrevocable Trust (Lbe IITrust").

Any person who makes a gift of an asset t() this Trust shall be known as "Donorll• Any

property which subsequently may be transferred to or received by the Trustee shall be held by the Trustees in trust and shan be administered upon the tenns' and conditions·hereinafter set forth. The Trustees shall have the right to accept or reject any property contributed to the Tmst.

I. BENEFICIARIES AND PURPOSE

1.1 Family, Settlor is manied to Kim Dahl. Settlor and Settlor's spouse have two children, Clara Toni Dahl and David Charles Dahl. All ~eferences to Settlor's children include the aforementioned children and any other children born to or legally adopted. by Settlor.

1.2 Beneficiaries. The beneficiaries of the Trust (the "BeneficiariesU) are as follows:

1.2. L the Settlor during his lifetime;

1.2.2 the Settlor'S spouse;

1.2.3 the Settlor(s issue; and

1.2.4 any charitable .or tax-exempt organization that may be added· as a beneficiary of the Trust pursuant to Section 4.3 hereof.

1.3 Pumose ofthe Trust. The principal purpose of this Trust is to trade. buy, [ease, improve, develop and sell real estate, personal property, minerals, oil and gas and allied enterprises and all attendant rights therein; to acquire, own, and hold life insurance, either directly or through variolls entities owned bytbe Trust, on the life of the Settlor; to invest in stocks, bonds and any and all other securities, and to participate in buying, selling and trading of the same; to invest in various business ventures and the purchasing and holding of the equity interests therein; to loan, borrow or raise monies for any of the purposes of the Tmst; to manage business, trust and investment assets owned by the Trust; to maintain control of assets of the Trust; all for the benefit of the Beneficiaries in accordance with the desires of Settlor as expressed herein. In particular, the Investment Trustee may invest assets in limited partnerships

j

or limited liability companies and may become a member of such limited partnerships or limited liability companies. Tl1elnvestment Trustee shall be expected to take the above actions and shall not be held liable for doing so.

1I. DISPOSITION DURING SETTLOR'S LIFE

During the lifetime of the Settlor, the Investment Trustee sha)) pay over or apply the net income and principal of the Trust Estate to such extent, including the whole thereof, and in such amounts and proportions, including all to one to theexc1usio:n of the others, and at such time or times as the Investment Trustee, in the exercise ofbis sole and absolute discretiollt shall . determine, to or for thebeneflfofthe Bcncficiaries;provided,however, that during the life of Settlor, at least thirty (30) days prior to making any payment or application of income or . principal toanybeneficia,ryotherthan Settlor, .the rnvestment Trustee. shalLadvi~e Settlor in writing ofthe Investment Trustee's intention to payover or apply income or principal to a beneficiary other than Settlor and Settlor may veto ("Veto")· any such intended payment or

. application bydirectingthe Investment Trustee in writing not to malce the payment or application, and, ifsuch Veto isexeicised by Settlor, the Irivestment Trustee shaH not make the intended payment orapplicatiort to a beneficiary other than Settlor. Any net income (which may be the whole of such income) not so paid over or applied shall be accumulated and addedtotlte principal of the trust at least annually and thereafter shall be held. administered and dist.ributedas a part thereof. Without in any way limiting the. sol~ and absolute discretion of the Investment Trustee hereunder and without imposing any fiduciary duty to do so, it would be in keeping with Settlor's current intention that the Investment Trustee consider distributions to or forthe benefit ·ofSet11or duringSettiorfs lifetime to allow Settlor to maintain S~tt]or's lifestyle as it existed at the time of the creation ofthe Trust taking into account resources and income available for or by Settlor. Settlor retains the right to renounce the power to Veto retained in this Article II by delivery of an acknowledged written instrument to the Trustees renouncing such Veto power.

III. DISTRIBUTIONS AFrERSETTLOR'S DEATH

3.1 Settlor's Testamentary Special Power of Appointment. As soon as is reasonably possible following the death oftheSettloTJ the Investment Trustee shaH distribute the remainder of the Trust Estate as the Settlor shall appoint in the Settlor's probated will. To beeffective,the Settlor's probated will must·make specific reference to this testamentary special power of appointment by Trust name and Section number. The Settlor may exercise this power by requiring the [nvestment Trustee to distribute the remainder of the Trust Estate to or in trust for any person other than the Settlor's.estate, the Settlor's creditors, or the creditors of the Settlor1s. estate .. The Settlor may also create. new powers of appointment. Under no circumstances shall the Sett10r appoint. the Trust Estate to the Settlor's estate~ the Settlor's creditors or the creditors of the Settlor's estate. If Settlor fails to appoint the assets of the Trust, the Investment Trustee shall hold, administer, and distribute the assets of the Trust pursuant to the tel111S 'andconditions of Section 3.2.

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3.2 Division of Trust After Settlor's Death. If Settlor's spouse does not survive Settlor, then the assets of the Trust Estate spall be held, administered and distributed pursuant to the Family Trust (described in Section 3.4 below). Ifthe Settlor's spouse survives the Settlor and is married to the Settlor at the time of the Settlor's death, the Investment Trustee shall set aside, transfer and pay over to the Marital Trust (described in Section 3.3) all onhe assets ofthis Trust, except that if' a reduction of the property passing to the Marital Trust under this paragraph would not result in any increase in lhe federal estate tax upon the Settlor'sestate~ the p(operty otherwise passing to the Marital Trust under this Section shalI be reduced by the largest amoun.t which wil1 result in no increase in federal estate tax upon the Settlor'S estate, and suohamollnt shall not pass under the 3.3 but instead shall pass and be governed by the provisions of Section 3.4 of this Trust. The assets comprising the Marital Trust shall be fairly representative of the appreciation and depreciation in value of all property avaiJable to the Investment Trustee in satisfaction of this disposition.

33 Marital Trust. The Investment Trustee shall hold the Marital Trust as a sqparate trust and shall administer the Marital Trust as follows:

3.3.1 Income and Principal Distributions. The Trustee shall pay to the Settlor's spouse, commencing as of the date ofthe SettIor'sdeath. all of the net income from the Marital Trust at such time and from time to time as Settlor's spouse requests in Writing. If Settlor's spouse failsto request the net income, or any part thereof, the undistributed net income will be retained in the Marital Trust until Settlor'$ spouse requests the undistributed net income. In addition, theTntstee may make distributions from the Principal of the Marital Trust to or for the bcnclit ofth~ Settlor's spouse in such sums as the Trustee deems necessary to provide for the health, education, maintenance and support of the Settlor's spouse.

3.3.2 Powers of Withdrawal. The Trustee$hali; at any time during any oalendar year, pay over to the Settlor's Spouse from the principal of the Marital Trust such amounts as she shall request in writing; provided, however, that the aggregate value of su,ch distributions in any single calendar year shall not exceed the greater of (a) Thirty Thousand Dollars ($30,000.00). or (b) two percent (2.0%) ofthe aggregate value of the principal of the Marital Trust as detennined on the day the Trustee actually receives the Settlor'S Spouse's written request. If the Settlor'S Spollse fails to exercise this power before January 31 of each calendar year,' this power shaH· lapse as to that year and under no condition nor circumstance shall it be exercisable during the balance of that year, .nor shall it be treated as cumulative. If the Settlor's Spouse exercises this power as to any amount less than the maximum pennitted-by the foregoing lirnitationsthat portion which might have been withdrawn shall also Japse and the Settor's Spouse shall not have any further right or power to withdraw pursuant to this Section 4.5.2.

3.3.3 . Distribution on Death of Surviving Spouse; Accrued Income and Estate Taxes. As soon as is reasonably possible following the death ofthe Settlors spouse, unless. the Settlorts spouse provides otherwise in his or her probated will, the Investment Trustee shaH distribute directly to the taxing authorities, or to the personal representative of the Settlors

spouse's estate, an amount equal to the succession taxes assessed by reason of the Settlor's spouse's death multiplied by a fraction. the numerator of which equals the net federal estate tax value of the Marital Trust assets and the denominator of which equals the Settlor's spouse's adjusted gross estate.

3.3.4 Distrib~tioil on Death ofSuryiving Spouse. As soon as is reasonably possible following the death ofthe Settlor's spouse,tbe Investment Trustee shall distri1?ut~ the remainder ofthe Marital Trust Estate (after fulfilling the provisions of Sections 3.3.3~tothe Fidelity Charitable Gift Fund in the form of a donor advised f~ndestablished in the name ofthe Settior and/or the Settlor's spouse. The Investment Trustees,· in their discretion, may select a donor advised fund whichis aready inexistence~ or create anew donor advised fund. Thedonor advised fund selected or created by the InvestmentTrustees shallnarne the issueofthe Settlor and the Setl)or'sspouse as the individuals withcontinuingauthoritytorecommendgrants,-lf the Fidelity Charitable Gift Fund is not in existence at the time the distribution is to be made, the Investment Trustees shall select another fund providing similar benefits.

335 Disclaimer. The Settlor's spouse,orhis orher personalrepresentative, . may disclai m in writing the surviving spouse1s interest in property ofthe Mari~ . Tru st. If" ijle Settlor's spouse disclaims part or all of the property given totlleMarital Trust. the Investment Trustee shall distribute the disclaimed property pursuant to the terms and conditions of Section 3.4 below.lfSettlor's spouse has a power of appoimmentpursuant to the provisionsof3.4 below,Settlor's spouse's power of appointment sfial1 not apply to any propertySettJors spouse disclaims pursuant to this provision.

3.3.6 Qualified Terminable InterestEleotion .. Settlor intends the Marital Trust to qualify for the federal estatetaxnlarital deduction. However~ theSettlorrecognizesthatthere -may be situations in which anel~tion to treat part, or even all. ofthe Marital Trust as not qualifying for the estate tax marital d~duction would be appropriate .. Thus, the lnvestment Trusteesl1alI have discretion.to make or not make the qualified terminable interest property

. election based on the Investment Trustee's knowledge at the time the election must be made. The Investment Trustee's decision shall not be subject to question by any beneficiary.

The Investment Trustee sha11 notify the Personal Representative of Settlorsestate in writing concerning how this matter should be handJed on the Settlor's federal estate tax return. The Settlor has instructed the Settlors Personal Representative to follow the htvestment Trustee's directions in all events. If 110 Personal Representative has been appointed, the Settlor authorizes the Investment Trustee to make the election directly.

3.3.7 Unproductive Assets. The Investment Trustee shall not retain any asset in the Marital Trust which is unproductive if the Investment Trustee is instructed in writing by the Settlor's spouse lo dispose of the unproductive asset.

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3.4 Family Trust. The Investment Trustee shall hold and administer all Trust property directed to be distributed in accordance with the provisions of this· Section 3.4 as follows:

3.4.1 Surviving Parents and Descendants. The Investment Trustee shaH first hold the assets of the Family Trust for the benefit ofa class of beneficiaries comprised ofthe descendants ofthe Settlor, and the fonowing individuals (the Settlor's p~rents .and parents-in­law): Richard 1. Dahl, Katherine J. Dahl, Keith R,' Groscost, .and VivjanGroscos~ (c~nectively the "Parents l

'). For so long as any oftheParents is Hving, the Investment Trustee, in the ex.ercise orhis or her sole and absolute discretiQn,.shall ,retain the a$sets anhe Family Tritstin trust. or shall distribute all, part, or none of the net income and principa.l (in equal or- unequat'aniounts.J to the members of the class or. apply the same for their benefit Notwithstandins.theforegoin&, the Investment Tmstee shaH not distribute any amount of the principal.ofthe Fa,mily Trust except. to provide for tne following limited and ascertainable purposes: namely, to,pr:ovide for· the health, education. maintenance and support of any or all of such individuals who are in the ciaJ!s. The Investment Trustee shall accumulate anlluallyany undistributed net income. Theinvestment Trustee shall charge any·distribution made pursuant to this Section 3.4.1 against the Trust Estate as a whole, and not against the ultimat¢ distributive',share of the beneficiary to whom a

. distribution is made. Following the deathofthe last Parent to die, theJnvc$tmentTrusteeshall hold, administer and distribute the assets of the FamilyTrust as provided in Section 3.4.2 below.

3.4.2 As soon as practicable followhlg the death. of1he last P~nt to (;li~, the Investment'Trustee shall divide the remaining balance of the aSsets comprising the Fami1yTrust into equal and separate shares so ~ to provide one (1) share for each then living child of the Settlor and one (1) share for each deceased child of the Settlor who shaH leave issue then living (to be apportio'ned in partial shares among th~m by right of representation). Heteafter, individuals for whom separate or partial shares are established shall be called the "Beneficiariesi,

(collectively) or a "Beneficiary." 'Each share created under this Section 3.4 .. 2 shall be n'amed as follows: The CPD TrustFBO [insert beneficiary'~ name], Each share shall be treated as a separate Trust and shall be djstribute~or retained in trust as follows:

(a) . The Investment Trustee may in the Investment Trustee's discreiion pay to or apply for the benefit of any Beneficiary such part or all of the net income the Trust Estate, as the Investment Trustee deems appropriate and advisable, taking into consideration the present and anticipated needs of each such' Beneficiary, and any other sourc.es of support avai1able to such Beneficiary (including the capacity for gainful employment) of which the Investment Trustee shall have knowledge, to provide for the Beneficiary's health, education, maintenance and support. The SettIorexpressly authorizes andeocourages (but in no way requires) the Investment Trustee to expend Trust income (i) to maintain policies of health and' medical insurance for each Beneficiary, (ii) to reduce the fmancial burdens of their guardians so that the gliardial'ls can provide appropriate (as defined1.Jy the Inve~tment Trustee) housing, care and maintenance for the Beneficiaries. arid (iii) to provide reasonable (even generous) compensation to the guardians. The Investment Trustee shall annually add to the principal of each such share any undistributed income.

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(b) Notwithstanding the provisions ofthis Section 3.4.2, if, at any time there shall be danger that any portion or portions of the income otherwise di.stributable to a Beneficiary will be dissipated or improvidently handled through a BeneficiarYs incapacity (adjudicated or otherwise), intemperate or spendthrift habits, lack of business capacity, lack of investment management skills, subjection to the injurious influence of others affecting business capacity or investment management -- or for any other reason or reasons detennined ]3y the Investment Trustee in the InvestmentTrustee's sale and absolute discretion -- the Investment Trustee shall withhold, if the Investment Trustee deems it best, from any such Beneficiary the

. whole or any portion of the income otherwise distributable to such Beneficiary. Instead, the Investment Trustee shan pay and transfer to (or for the benefit of) any such Beneficiary only so much of such income as the Investment Trustee in the Investment Trustee's sole and·absolute discretion shaH deem advisable. Alternative]y, if the Investment Trustee in the Investment Trustee's sole and absolute discretion dec=msit "est, instead of paying end transfflrringtQ any. such Beneficiary any portion of said Trust income,expend the same, or any.portion thereof, for the support of such Beneficiary. Whenever in the sole and absolute discretion of the Investment Trustee th(;! reason or reasons for withholdinganydistribution no longer apply. or shaH have . ceased to exist, then during such·cessation the InvestmentTrustee may then pay arid transfer to . such Beneticiary any portion or portions ofthe income that shall thereafter De distributable to such Beneficiary under provisions ofthis Trust Agreement.

(c) . Notwithstanding the foregoing. the Investment Trustee may, in the Investment Trustee's sole and absolute discretion, make distributions out of the income or principalof'the Trust share set aside for any Beneficiary described in Section 3;4.2 above 10

provide for the following purposes: The purchase of apersonal residence; the pursuit of undergraduate, graduate and postgraduate education (including the costs of housing), provided the Beneficiary makes reasonable progress toward graduation; the payment of any medical or fimlncial expense. which (in the opinion of the Investment Trustee) arises from an emergency; the payment of expenses, including travel and maintenance, of any Beneficiary while serVing as a ful1~time missionary for The Church of Jesus Christ of Latter-day Saints; and any other expenditures, which (in the opinion ofthe Investment Trustee) represents a worthy, non-speculative use of the Trust Estate.

3.4.3 Upon the death of a Beneficiary for whom a share is then held, sixty percent (60.0%) of such share shall be divided into separate trust shares among his or her descendants, and the Investment Trustee shall hold, administer and distribute each such share, pursuant to the provisions of Section 3.4.2 above. The balance of any such share. or all of it if the Beneficiary leaves no descendants, shall be distributedpursuant to Section 3:3.S above.

3.5 Alternative Distribution. If all of the above distributions fail. then the Investment Trustees shall distribute the property of this Trust pursuant to Section 3.3.5 above.

3.6 Rights as to Certain Gifts

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3.6.1 Right of Withdrawal. If at .any time Settlor or a Donor transfers property to the Trust Estate accompanied by 'Written notic~ to the Investment Trustee to the eff~t that such properly or some specified amount thereof shall be subject to withdrawal under the provisions of this Section 3~6.1 by one or more otthe then Beneficiaries hereunder; each such thus designated Beneficiary shall have the absolute right to withdraw from. the principal of the Trust Estate that portion ofthe amount of such property, detennined in the same manner as such amount would be detennined for the Donor's federal gi ft tax purposes, which is speci fled as subje~t to withdrawal by such beneficiary in such notice. The withdrawal rights arising in . connection with each transfer to the Trust shal11apse in accordance with Section 3.6.5.

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3.6.2 MethQd Of Exercise. Each such right ·ofwithdrawal shall be exercisable only by a written instrument executed by the beneficiary having such right and delivered to the Investment Trust~e on or b~for:e. the (iate specified il1suchJn~tl1Jment as the"ef[ec:tive date of such withdrawal. [fsuch beneficiary is then under any legal disability of any kind, execution of the instrument exercising his or her right of withdrawal may he by his or her legal guardian or conservator, or irno· guardian or conservator has been'appointed,-by his or her natural guardian. (other than Settlor). .

. 3.6.3 Payment of Amounts Witbdrawn. Distribution of amounts withdrawn pursuant to this Section 3.6 shall be made on the date specified as the effective date in the instrument of withdrawal.

3.6.4 Duty ofInvestment Trusteetolnfonn Beneficiaries of Withdrawal Rights. Each beneficiary design~ated as having a right of withdrawal with respect to any property transferred to the Trust Estate or, if sllchbeneficiary is then under a legal disability, his or her legal guardian or, inhere is none, his or her natural guardian shall be given reasonable notice-by the Investment Trustee of such right of withdrawal and the conditions under which it may be exercised; provided,however, that the Investment Trustee shall only be required to give suon notice if requ~sted to do so by the D011.or in the written notice described in Section 3.6.1 hereof at the time the Donor transfers property to the Trust. .

3.6.5 Lapse. The withdrawal rights held by each beneficiary with respect to all transfers to the Trust shall lapse on December 31 of each calendar year as to the greater QfFive Thousand Dollars ($5,000) or five percent (5%) of the value of the Trust fund on such datet.or the total amount to which each beneficiary has the right to withdraw from the Trust and whicl) has not previollsly lapsed or been withdrawn, ifless. If the effect of the preceding sentenoe would be to cause aU or any part of a withdrawal right to lapse less than 60 days after notice is given concerning that withdrawal right. then such lapse shall be suspended until the end of such 60 day period, and the amount of such lapse shall be included in detcnnining the limit on aggregate lapses as if such lapse occurred on the next following December 31. If Internal Revenue Code Sections 204 1 (b)(2) and 2S14(e) or succeeding sections are amended to increase the amounts set forth in such sections, then the amounts set forth above shan be changed to be the increased amounts. Upon the death of a beneficiary, any amounts to which a beneficiary, at

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the date of the beneficiary's death, held a withdrawal right which has not lapsed or been waived shall be paid by the Trustees to the estate ot the deceased beneficiary.

3.7 Discretionary Powers of Trustee

3.7.1 Class Distributions. The discretionary power of the Investment Trustee to distribute income and principal among the members of any claSs shall include the power to make unequal distributions and the power to withhold all distributions of income or principal from one or more or all members of such class. .

3.7.2 Limitations on Discretiorun:y Powers.

fa) Ascertainable Standard, Notwithstandil:1gal1yoth~r.provision of this instrument, jf any person is both a Trustee and a beneficiary of any trust established hereunder, suchpersort shall not partic:ipate in .the exerciseonilediscretionacy power of the . Investment T nlstee to distrihu(eincome andpriQ.cipal to .hirn~~lforhers~lfor to. or for any person to. whom that individual Trustee owes a legal obligation of support, in excess of that which is necessary· for hjs or her health, support, education and mainteJla11ce. For the purpose of this limitation, distributions necessary for· health shal1inc1ude distribution to pay medical; dental. hospital, nursing and invalidism expenses, distributions necessary for education shall include distributions Lo pay the expenses ofpriYate schools andcol1eges and professional an.d post­graduate education, and the terms"support" and j'maintenancet

' shall not belimitedtothebare necessities of life but shall mean support and maintenance in reasonable comfort and in his or her accustomed manner of living. AnydistObutions in excess ofthatwbich is necessary for health, support, education and maintenance shaH be made in the sole discretion of a c:o-Trustee or successor Trustee and not the beneficiary-trustee. rfa Co~ Trustee or suceessorTrustee is not thenserving. then a Co;.Trustee or successor Trustee shall be appointed as provided in ArticJe IV to serve for this limited purpose.

(b) Proscription Against DischargeofSullport Obligation. Ifany Tntstee of any trust hereunder has a legal obligation to support any beneficiary of such trust, Buch . Tntstee shall not exercise his discretionary power to distribute income and principal in such a way as to discharge such obligation of support .

. (c) Insurance on Life of Trustee. If insu~ce on the life of any person shaH become an asset of any trust hereunder, such person. if and while acting as a Trustee hereunder, shall have no power or authority to change beneficiaries or to obtain the cash or loan value of such insurance or to exercise any other right, privilege or incident of owners hip with respect to such insurance. All incidents of oWnership of such insurance shall be vested solely in the Trustee other than such person. If such person is the sole Trustee, then a Co-Trustee or Successor Trustee shall be appointed as provided in Article IV for the sole purpose of exercising all rights, privileges and incidents of ownership pertaining to such insurance.

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(d) Remainder Interests. The provisio~s of this instrument which create remainder inter(1sts upon tennination of preceding estates shall not limit or othetWise

. affect any discretionary power to distribute principaJeven though a discretionary distribution may have the effect of tenninati~g the Trust through exhaustion of the Trust Estate.

(e) Discretion of Trustee. Except as set forth in Section 2.1, discretionary powers are exercisable in the discretion of the Trustees and no beneficiary shall have any right or power to enforce or object to the reasonable exercise of such powers.

IV. TRUSTEES ..

4.1 Investment Trustee

4. t.1 Appointment of Investment Trustee. C. Robert Dab) shall serve as the initiallnvestrnent Trustee of this Trust. IrC. Robert Dahl should fail oI'ce&seto serve, then Matt Robinson shall serv~ as the successor Investment Trustee.· If Matt Robinson shall cease or fail to serve, tlu~n Cha:r16tte Clark shall serve as th", su.cces~or Investment Trustee. IfCharl()tte Clarksllall cease or . fail to . serve, then a succesSorsh~1l1'be ·appo'intedbythe Settlor. However, Settlor may never be appointed as 'Investment Trustee. If the Settlor cannot appoint a succesSOr Trustee, then a successor Trustee shall be elected by the Special Twstee.liltheevent oftl1e resignation of an l.nvestment Trustee when there are more than (me Investment Trustees serving, if no successor to such trustee is designated under this ,Section 4.1, or if the designated successor is unable or unwilling toaet, the other Investment Trustee or Trustees then in office shall act alone. .

4.1.2 Dutiesofthe Investment Trustee. The Investment Trustee is granted thci exclusive power to vote in person or by general or limited.proxY with respect to any shares of stock or other sec 1I rity Of any corporation held as part of the Trust, and to rna,ke all investment decisions regarding the assets of the trust estate including, but not limited to, the purchase retention or sale of any assets held in the trust estate. The Investment Trustee is also granted the exclusive power to pay over or apply or pennit the use of the net income andlor principal or to accumulate the net income andlor principal thereof to such e1(tenf(including the who]e thereof), and in such amounts arid proportions, and at such time or times as tlteInves,tment Trustee,'in the exercise of sole and absolute discretion, shall detennine to or for the benefit or use of such one or more of the Beneficiaries as the Investment Trustee shall select, subject to the guidelines set forth herein.

4.2 Qualified Person Trustee. Nevada State BaDk, a Nevada corporation, shall serve as the Quali ned Person Trustee as defined in Section 4.2.1 below . Unless otherwise indIcated in this Trust, the Qualified PetsonTtusteeshall only have the rights and responsibilities as defined in this Section 4.~. lithe Qualified Person Trustee should fail or cease to serve as such. then a successor shall be appointed by the Settlor. If, for Whatever reason, Settlor cannot appoint a successor QuaIi fled Person Trustee, then a Qualified Person Trustee shall be appointed by the then serving Trustees.

4.2.1 Definition. The Qualified Person Trustee shall at all times that the Trust has it situs in the State of Nevada satisfy the requirements for a trustee set forth in NRS

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166.015(2) (or successor statutes). If the Trusteedetermines to mpve lhe'sittis of a trust hereunder to another jurisdiction in accordance with Section 5.4.7. then the:QuaHfiedPerson Trustee shall be a person domiciled in the State of the then situs oUhe Trus.t who shall meet the requirements of the laws of the State of the then situs of the Trustin order to qualify the Trust to be sited in that State.

4.2.2 Duties of the Qualified Person Trustee. As long as the TrUst is sited in the State of Nevada, the sole duties and responsibilities ofthe Qualified Person Trustee shall be •. non-exclusively, to: '

(a) physically maintain books and records ofilie Trust in Nevada; and (b) arrange for the p~parationoftheincome tax t,etu11ls of the Trust; (c) , adtninister the assets of the Trust which are deposited in Nevada as

set forth in Section 4.2.3(b).

lfthe situs of the Trust is changed to a State other than Nevada, the duties and . responsi biJi ties oJ theQualifiedPersonTrusteeshaH bethoseduties andresponsibiI~ti~sas required by the .Iaws oftheSfale ofsirusoftheTrustneeessaryin order for the Trust to be sited in that State. .

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4.2.3 InvestinentMan~gementResporisibmties - Indem~jficatjon ofQya:liped Person Trustee.

(a) General Provisions. As long as the Trust is sited in the State of Nevada and except asset forth·in Sectio:n 42;3(b)~ the 'Qualified Person Trustee shallnotbe responsib 1 e for nor have the right to vote regarding the investment management responsibilities oftheTrust, which responsibilities shall be exercised by the Investm~tTiustee and the Qualified Person Trustee shall be' and is exonerated from and held harmless and indemnified from any investment responsibility, liability or duty.

(b) Nevada Trust Assets. Assets Whi(:h are deposited in the State of Nevada shaH be administered as defined in Section 5.3.2 by the Qualified Person Trustee. The Investnlent Trustee shall designate those assets which are to be deposited in the State of Nevada for purposes oftbis Section 4.2.3(b). .

4.3 Special Trustee. Lee S; McCul1ough.m is appointed as Special Trustee. If Lee S. McCullough, III shall fail or ceaSe to serve as Special Trustee then the Settlor 'shall appoint a successor Special Trustee. After the death or incapacity of both Settlor. the Special Trustee may appoint a successor Special Trustee to take office upon his or her death, resignation or incapacity. Ifno such appointmentof a successor is made by the Special Trustee,then a successor Special· Trustee shall be elected by the majority vote of the issue of Settlor who are over the age of 25, voting according to a per stirpes distributive pattern. Notwithstanding~neitherthe Settlor. the issue of Settlor, the initial Investment Trustee, nor a serving Investment Trustee or Qualified Person Trustee may serve as Special Trustee. In the Special Trustee's sole discretion, the Special Trustee may remove Trustees (includillg the Qualified Person Trustee). and may appoint successor Trustees (including the Qualified Person Trustee), notwithstanding. the succession indicated in Sections 4.1 and 4;2, except that he/she cannot appoint himself as Trustee. If the

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Special Trustee does not appoint a successor Trustee foranYTrust~_that has.been removed., a new Trustee shall then be appointed pursuant to theprovisio~softhis Artid~ IV. In his.lher .sole discretion. the Special Trustee may also recon:tnlend the temt.iilati()tI'ofthis Trust or any trust created herein at an)' time. If the Trustee and theSettJor(if!iviilg) c;:otlcur "fith the recommendation ofthe Special Trustee that the Trust should be temtinated, then the assets of the . Trust shall be distributed pursuant to Section 5.1.

The Special Trustee shall also have the right. acting individually and not as a fiduciary, to disallow for a period of time the ex.ercise of any powers cOlltaio¢d herein which wouJd cause the grantor or another person to be treated as the owner or any portion of the Trust pursuant to Sections 671 through 679 of the Internal Revem .• e Code (here~nafterreferred·to as "Grantor Trust Powers"), by filit:lg a writing with the Trustees, duly executed;and acknowledged. declaring the disaJ lowance of the exercise of the (Jrantor TrustPowers and ,the time period for which the exercise of the Grantor Trust Powers are disallowed.

Due Lo the SettlQr's expectation that the Trust will continue for a long period of time, the uncertainly ofthe currenttaxl,liws, thelikelihood.that the·~pplical'Jle-tax Jaws and ollt~r laws wilJ change over tiqie, aild the possibmtyofotherunfores~en circumstances w~ichrnayaffectthe· ability of the Trustee to catTY out the intentions of the Settlor in creating the TrUst, it is the Settlor's desire that the Special Trustee have power to amend the Trust to comply with applicable laws, to adapt to changesin the laws, to.COtTect any-scrivener's errors, and to otherwise carry out the intentions otthe Settlor in creating the Trust. Therefore, to the extent that this pr~visionin and or itself does not frustrate the iritenti()ils ofthe.8ettlor in oreating the Tnast, the.-$p~cial Trustee shall have the power to amend thisTrust Agreement forilie purposes described above by filing with the Trustee a written am~ndment, duly executed and acknowledged by the Special Trustee. Notwithstandingthe above. the Special Trustee's power to amendthc Trust shall not include any power to mo-dify the qualitY, value or timing of anyoftheoriginalpowerSJ beneficial interests, rights or expectancies under the Trust.

The Special Trustee, acting individually and not as a fiduciary, shall have the right. without the approval or consent ~f any adverse party, to add. b~eficiaries to the Trust from among those organizations which are recognized as tax exempt under Section 50l(a) of the Internal Revenue Code. The Special Trustee may disclajm the right to add beneficiaries to the Trost, ina writing, duly executed and acknowledged, and filed with the Trustees making specific reference to the Trust and specifically disclaiming the right to add beneficiaries. Notwithstanding any other provision of this Trust, the Trustees may, in their sole discretion. distribute so much of the income and principal of the Ttust as the Trustees deem appropriate tq beneficiaries ,vho may be added to the Trust pursuant to this Section.

The Special Trustee shall have no liability to the.Tn,Ist, the Settlor, the TJ'l1stees, the beneficiaries nor any other person for the exercise of his discretion hereunder. The Settlor and Trustee acknowledge that the exercise of the Special Trustee's discretion may have unanticipated adverse effects and the Settlor and the Trust shall indemnifY and hol4 the Special Trustee harmless from any liability therefrom. .

4.4 Power to Resign. Any Trustee (whether an Investment Tnistee; Qualified Person Trustee, or Special Tntstee) onmy trust created by this instrument may resign from office at any

time by giving notice in writing and d~livered in person to or mailed to the last known address of any remaining Trustees, and to the Settlor, or if they are deceased, to the heirs of Settlor under a per stirpes distributive pattern, such resignation to be effective on the date specified in such notice. Notice shalt be effectively given in the case of abenefichuy who is a minor or is under other legal disability ifgiven to the parent, guardian or other person or institution having custody of such beneficiary.

4.5 Voting. When more than one Trustee is serving. a majority of the Trustees entitled to vote, whether individual or corporate, shaH have the power to make any decision, undertake any action, or execute any document affecting the Trust. In the event of a difference of opinion among the Trustees entitled to vote. the decision ofttie majority of them shall prevail, but the dh;senting Trustee shall not be responsible for any action taken by the majority pursuant to their decision. Ifonlytwo (2) Trustees entitled to vote are il1 office, they must act unanimously.

V. 'GENERAL TRUST PROVISIONS

5.1 Pemetuity Savings Clause. Neither this Trust, any trust created by this Trust nor any trust created pursuant 10 the exercise of a special power of appointment granted' purSUant to 'this,Tntst, shall continue beyond the period set forth by the Rule against Perpetuities as applied under the laws of the state havingjurisdiction ofthe trust in question. Upon th~ expiration of the Rule against Perpetuities period,the Trustee of the TruS4 the trustee of any trust created by this Trust and the trustee of any trust created pursuant to the exercise of a special power of appointment granted pursuant to this Trust, shall tenninate the trust and shall distribute the assets of the trust to the beneficiaries of the trustwbo are then pennissible distributeesofthe trust in ,accordance with their relative interests in the trust. If the pennissible distributees'relative interests are uncertain, the trusteeshaU distribute the property of the tru~t to the permissible distributeesas the trustee deems to be consistent with the Settlor's intent as set forth lnthis Trust Agreement. In the event the trustee is uncertain as to the Settlor's intent, the trustee may seek instructions from a court having jurisdiction over the administration of the trust. Ifunder the law of such jurisdiction the longest period that property may be held in trust may be detennined (or alternatively detenn i ned} with reference to the death of the last survivorofa group of individuals irt beil'lg upon the date of this Agreement, those individuals shall consist of aU the descendants of the Settlor's parents who were in being on the commencement of the applicable period orrule against perpetui ties date of this Agreement.

5.2 Spendthri ft Clause. The interest of a beneficiary (including the Settlor) of any trust hereunder may tiot be either voluntarily or involuntarily transferred before the payment or deHvery of the interest to the beneficiary by the Trustee. within the meaning ofNRS 166.020 and 166.120, No beneficial interest in.any trust created hereunder, whether in income or in principal, shall be subject to anticipation, assigmnent.pledge. sale or transfer in any manner, and no beneficiary of any such trust or other person interested therein shall have the power to anticipate. encumber or charge his or her interest therein, and no trust estate created hereunder shall be liable for or subject to the debts, contracts, obligations, liabilities or torts of any beneficiary of any such trust or other person interested therein; provided, however. that nothing contained herein shall be construed as preventing any beneficiary from making a qualified' disclaimer within the meaning of Section 2518 of the Code with respect to interests herein.

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'5.3 Administration of Trusts

5.3.1 Administration of Trust Estate.

(a) Investment Trustee's Right to Disclaim Assets. The Investment Trustee is granted the absolute unfettered. right to accept or reject any property which would otherwise be distributed to this Trust, including but not limited to the right to disclaim any interest in any assets which might otherwise be distributed to this Trust from any trusts established by Settlor. The Settlor realizes that many different factors may come into play upon Settlor'S death, including but not limited to the potential payment of estate taxes, gift taxes, and/of income taxes, and therefore grants the Investment Trustee, who may take into account factors outside of this Trust, broad discretion with respect to whether or not to reject gIfts or disclaim assets. The lnvestment Trustee'shall be heldhannless for any detennination with respect to whether or not to acceptt reject, or disclaimprop~rty.even ifsuch adetennination would have a potentially adverse affect on the Beneficiaries of this Trust.

, ,

(b) Trustees to Pay Expenses frOm Trust Property. Th~ Trustees shall, according to ttle authority granted to each pursuant to Sections 4.1 and 4,2~invest and reinvest the Trust Estate, collect the income therefrom ,and may apply such income to the payment of Trust expenses, including insurance premiums ot other charges on any insurance policies that comprise part of the Trust Estate, the acquisition of any interest in real property. and the maintenance and operation of such property, whether directly or through any intenn~iary, inc]uding bill not limited to a limited partnership or limited liability company, or to acquire and own interests in business entities as an investment. '

(c) Income Insufficient If at any time the net income, oftheTru$t Estate is insufficient to pay the expens~~ premiums, or other charges with respect to the Trust Estate, including expenses, premiums or other charges on pOlicies of insurance held by the Trust, the Investment Tnlstee shall notify tl1e Settlor 'arid Settlor's issue per stirpes ,of such ins~:ffi~jency, Settlor and/or one or more of the Beneficiaries may furnish the necessary funds. for the payment ofthe expenses or premiums or other charges but neither the Settlor nor a Beneficiary shan not be obligated to do so. Any funds furnished as the result of such notice shall be applied by the Trustees to the payment of expenses, premiums or other charges, and the excess. ifany, of such funds shall be added to the principal ofthe Trust Estate. The, contribution shall be subject to the withdrawal rights hereinafter set forth to the extent so specified by the contributor. The amount of any payment made directly to an insurance company by any party other than the Trustees of all or any part of a premium on a life insurance policy owned by the Trust on Settlor's life shall be considered a transfer to the Trust as of the date of the premium payment to the extent that the payment is deemed to be a gift from the Settlor to the Beneficiaries for federal gift tax purposes, Any such indirecttransfer shall create withdrawal rights pursuant to Section 3.6 in an amount equal to the value of the deemed gifL

(d) Discretion of Trustee to Pay Premiums. If at any time the net income 0 f the Trust .Estate and the funds fumishedby Settlor are insufficient to pay the premiums or other charges 011 policies of insurance that compose part of the Trust E$tate, the Trustees may,

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in their discretion, pay the premiums or oiherchargeS, or any of them, and the Trust~es may obtain the necessary funds therefor by seJling at public or private sale, without notice to Settlor or any Beneficiary of the trust or any other person, a sufficient portion of the principal of the Trust; by borrowing on the security of the principal of the Trustor any part .thereoforonany of the insllrance policies; by applying the dividends on any ofthe policies; or by surrendering any of the policies for their cash surrender values. The Investment Trustee may also. in the investment Trustee's discretion, convert any policy on which premiums have not been paid due to insufficient funds into a paid-Up policy pursuant to the tenns of such policy;

(e) Transfer ,,[Existing Policies!. When a policy is transferred by the Settlor or any other person to the Trustees, the T.rusteesshall have no duty or responsibility whatsoevet·to evaluate any life insurance policy held hereunder,nor to eva1~at~ the financial condition of the underwriter of any suchpoHcy. it being the Settlor's intent that the Trustees shall be held harmless from arty loss or liability resulting from the failure of any insurance underwriter to perform its obligations 'underalifeinsurance policy or other such cont:rdcto-or fOTits investment perfonnance or any other action or inactionby any insurance underwriter.

_'.' (f) Collection oflnstirailce Proceeds~TheTrustees shallmake reasonable effons to collect the proceeds ofal1 insurance policies whichbecomepayabte to the Trus1eespursuant.to this Agreement. The Trustees shall have. full authority to take any action thelydeem best in regard to collection and to pay the expense thereof, inc}udingthe expense of any litigation, out of the principa.lofthe Trust Estate. The Trustees shall havefuU authority to make any compromise or settlement with respect to the. policies wbichtbeymay.deemadvisahle, and to give all necessary and proper releases of liabilities .. The Trustees, however, shall not be obligated to incur anyexpense in making col1ection ofthe proceeds of any policy unless indemnified by the beneficiaries hereof. The proceeds Qftheinsurance policies shall be added to and become a part of the Trust Estate and shall beheld, administeredt managed and distributed as hereinafter set forth.

5.3.2 Administration of Trusts in Nevada. It is the Settlor~s intention that the trusts created under this Agreement be trusts described in Nevada R.evised Statutes ("NRS") 166.015, 166;020. Accordingly, unless the Trustee detennines to move the situs of a trust hereunder to another juri~diction in accordance with Section S.4.7, the Settlor directs that:

(a) at all times the Qualified Person Trustee of this Trust or: any trust created hereunder shall satisfY the requirements for a Trustee found in NRS 166.015(2)(or successor statutes);

(b) at teast some assets of the trust shan be deposited in Nevada and administered by the QuaJified Person Trustee; and

(c) at least part ofthe administration ofthe trust shan occur in Nevada within the meaning ofNRS 166.015(1)(d). Suchadminis.trJitionin~.eyadB-ma)dnclude but shail not be limited to the following:

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·(1) physicalJy maintaining Trust records in Nevada; (2) holding trustee meetings in Nevada; (3) holding meetings in Nevada with trust beneficiaries; (4) maintaining accounts in Nevada; (5) initiating "trades"in Nevada.

5.3.3 Administration of Trusts outside of Nevada. Pursuant to Section 5.4.7, the Investment Trustee may change the situs of the Trust to a jurisdiction other than Nevada which stm enables the Trust to operate according to the terms and conditions described herein. The Investlilent Trustee shall take whatever steps are necessary to ensure compliance with the laws and regulations of such new jurisdiction. .

5.3.4 Court Supervision. It is Settlor's intention that all trusts provided for by this instrument be administered free from the active supervision of the court having jurisdiction over such trusts. This provision shall not limit the power oftheTrustees to take -action for the judicial settlement of its accounts or the power of any beneficiary to bring suit for an accounting.

53:5 Administrative Powers and D uti e§.' In addition to the powers enumerated in the Nevada R~vised Statutes,the Trustees are authorizedt without priorauthorizatioQ or approval of any court, to do everything they shall consider advisable in the management of each trust created by this instrument, even though it would not otherwise be authorized for a trustee under any statute or rule of law, without impairing its plenary nature. the ronowing powers .

. (a) QccUJ?ancy orReat Property. To pennit any person having any interest in any trust to occupy any real property forming a part of such trust upon such terrils lis the Trustee shall consider proper, whether rent free or in consideration ofthe payment oftaxes. insurance, maintEmance and ordinary repairs, or otherwise.

(b) . Enyironmental Power. To use and expend· trust property to (i) conduct environmental assessments, audits or site monitoring; (ii) take all appropriate remedial action to contain, clean up or remove any environmental hazard including a spill, discharge or contamination; (iii) institute legal proceedings concerning environmental hazards or contest or settle legal proceedings brought by any local, state, or federal agency conCerned with environ· mental compliance or a private litigant; (iv) comply with any local, state, or federal agency order or court order directing an assessment, abatement or clean-up of any environmental hazard; and (v) employ agents, consultants and legal counsel to assist or perfonn the above undertakings or actions; and no Trustee shall be liabJe for any loss or depreciation in value sustained by the trust as a result of the Trustee retaining any property on whioh there is later discovered to be hazardous materials or substances requiring remedial action pursuant to any federal, state, or local environmental law, unless the Trustee contributed to that loss or depreciation in value through wilffu1 default or misconduct or gross negligence.

(c) Settlernent of Claims. To settle, compromise or abandon debts or claims due to or made against it, if in its judgment it is in the best interests ofthe trust . beneficiaries to do so.

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)

Cd} Income and Principal. ToaddaccllJilulations:ofincome at such· times as it shall determine to the principal of the trust from which such income was derived or to hold such income as undistributed income, or to add such income in part to.principal and to hold it in part as undistributed income.

(e) Retention of Assets. To retain for sucbperiod as it shaH deem proper, without liabi lity forioss or diminution in value, any property held in the Trust Estate.

(f) Investments. To acquire bygift,puI"chase,lease orotherwise, and to retain. temporarily or. permanently, a11 kinds of real aJ')d personal property. wherever located. includingcommonsto~ks'llnsecuredobJjgations, interest in conutlontrus.ttun-ds and in investment trusts or companies,Hfe .insurt,lrlce policies and ahnuities,an4 irttetes~ orail kin~s in real estate,mineral and oil and gas prop,erties. partnerships, . limited 11abiUtycompanies. ,ventures and syndicates, all without diversification as to kind or amount and without obligation to pay interest on • reasonable ·balancesheld·incash~ , .

(g) , .. Sale and Disposition .. Tosell.leas~. e~change,mortgage, enctimberorotherivise dispo~e ofanypropertyTotiningparfofanyTrust Estate. malcingsales ' pubHc\y or privately and wholly. or partly oli credit.

(h) . Dealing wilh Assels~ To hold property beloflgillg to any trust in the names ol'nominees or in Trustee's narrtest withorwithout designation of Trustee capacity.

(i) Employ Agents. To employ such agents, consultants, and advisers as the Trustees Ili,ay deem appropriate, including investment counsel, custodians of securities. accountants and attorneys, to remunerate them and pay their'expenses. .

(j) Delegation of Trustee's Powers. Pursuant to law, to delegate to any one or more Trustees the exercise of any or all powerstdiscretionaryor otherwise, and to·revoke any such delegation .. The delegation of any such powers and the revocation of any such delegation shall be evidenced by an instrument in writing,signed by each of the Trustees making suchdelegalion and delivered to the Trusteesto whom such powers have been delegated, who shall sign such instrumentto acknowledge their acceptance of the delegation. So long as any such delegation is in effect,· any of the powers delegated maybe exercised and any action may be taken by the Trustees to whom such powers have been delegated with the same force and effect as if the Trustees delegating such powers had personally joined in the exercise of such powers and the taking of such action, and the delegating Trustees shall not be liable for any action so taken. .

(k) Business Powers. To engage in any business; to become members of any partnership or venture of any kind; to form corporations and. transfer property to them, and serve as officers or directors thereof and accept salaries therefrom; . and to vote securities and consent to voting trusts, exchanges, mergers, dissolutions and reorganizations of all kinds.

(1) Real Estate. To lease aU real property and all tangible personal property used in connection therewith for such periods, including periods extending beyond the duration of any trust, to suchtenants .and upon such tennsas the Trustees shall deem proper, and to execute and deliver leases containing such covenants as may be desirable to eff'ectany such

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leasing; to partition or divide in such manner as it shall deem proper any real property owned jointly or ill common with others; to construct builqings and improvements'of every kind~nd to cany on alterations and remodeling; to employ and pay real estate brokers and managhlgagents; to settle and determine any disputed real property boundaries; and otherwise to deal with real property in any manner customary in the real e~tate business.

(m) Dealing ,with, the, SettlorsPersonal Representatives. After a Settlor~s death, to lend money to the perSonal representative of Settlor or tothe trustee of any, trust established by the Settlor, mtd topurcha$cpropcmY of any character from such personal representative or Trustee, at sucbprices; and upon .such terms as the Trustees in their discretion shalldeern to be fair and reasonable, and to re~ain such prop'erty so long as itn,ay deem advisable.

(rt) Division of Trust for Generation SkiWing Tax: Purposes. When-ever (i) this Trust Agreement proVides fotthecteatiotl ofati'Ust~ (ii)partotflll-of:th,eDofioj"S generation skipping tax exemptionwiIJ be allocated to that trust, and (iii) that trust will not have a generation-skipping inclusion ratio of zer(), the Tru!i~eess~allin~t.ea~estab'.ishtWo separate trusts 50 th~t each separate 1rust has a gertetation;,;skipping'inclusiori'ril.tioofeitherzero (the ' Exempt Trust)orone (the Nonexempt Sub-Trust). TheTrusteesshaU allocate to the Nonexempt Sub-Trust the minimum amount of property necessary to esi~blish that trust wj~ aninclusion ratio of one, while leaving the Exempt Trust with an.inclusion ratio qfzero. The Nonexempt Sub-Trust shall be operated as a sepaiatesub-trust of the Trust pursuant to the same t~nt1S and conditions ofthis Trust Agreement, exceptthat the hivestment Trustee shall flrst expend the assets ofthe Nonexempt Sub-Trustto fulfil1 the purposes of this Trust.

(0) "Prudent Person" Rule maybe Waived in-S()te.pisg~tionof Trustees. In addition to the investment powers conferred above, thelnvestment Tmsteeis authorized(but not directed) to acquire and retain investments not regarded as traditional for trusts. inciudinginveSlments that would be forbidden or would be regarded as imprudent, improper or unlaw Cu Illy the uprudentperson II rule. "prudent ·investorn rule, or any other rule or law which restricts a fiduciary's cap~city to invest. The Trustee, in the exercilie of sole and absolute discretion, may invest in any type of property, wherever located, including any type of' security or option, improved or unimprOVed real property, alid tangible or .intangible personal prop·ertyand in any manner, inCluding direct purchase. joint ventures, partnerships, limited partnerships. limited liability companies, corporations, mutual funds, busjnes~ trusts or any other form of participation or ownership whatsoever. In making investments, the Tntstee may disregard any-or all of the following factors:

(1) Whether a particular investment, or the trust investments collectively. will produce a reasonable rate ofretum or result in the preservation of principal.

, (2) Whether the acquisition or retention of a partic~lar investment or the trust investments collectively' are consistent with any duty of impartiality as to the di fferent beneficiaries·, The Settlor intend that no such duty shall exist.

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(3) Whether the trust is diversified. The Settlor intend that no duty to diversify shaH exist.

(4) Whether any or all of the trust investments would tradi-tionalIy be cJassi tied as too risky or speculative for trusts. The entire trustmay be so invested. The Settlor intend the Trustee to have sole and absolute discretion in detennining what constitutes acceptable risk and what constitutes proper investment strategy.

The Settlor's purpose in granting the foregoing authority is to modify the "prudent person" rule, "prudent investor" rule, or any other rule or law which restricts a fiduciary's ability to invest insofar as any such rule or law would prohibit an investment or investments because of one or more factors listed above, or any other factorrelating lothe nature of the investment itself. The Settlor do this because the Settlor believe it is in the best interests of the Beneficiaries oHhe trusts created hereunder to give the Trustee broad discretion in managing the assets of the trusts created hereunder. .

(p) Trustee Acts In Fiduciary Capacity ... Every act done, power exercised or obligation assumed by a Trustee pursuant to the provisions of this Agreement shall be held to be done, exercised or assumed, as the case may be, by the Trustee acting in a fiduciary capacity and Ilot otherwise, and every person, firm corporation or other entity contracting or otherwise dealing with the Trustee shall look only to the funds and property oftbe trust estate for payment under such contract or payment of any money that may become due or payable under any obligation arising under this Agreement •. in whole or in. part, and the TrusteeshaU not be individually liable therefor even though the Trustee did not exempt himseJf, herself or itself from individual liabi lity when entering into any contract, obligation or transaction in connection with or gr()wing out 0 f the trust estate. The Trustee shall be fully indemnified by the trust estate against any claim or demand by any trust beneficiary or trust creditor, except for any claim or demand based 011 such Trust~'s own willful misconduct, willful default or gross negligence proved by clear and convincing evidence.

(q) Trustee Liability Provision. The Settlor recognizes that some persons may be hesitant to serve as Trustee heteunderbecause of a concern about potential liability. Therefore, the Settlor directs that; (a) the Trustee shall not incur any liability by reason of any error of judgment, mistake of laws or action of any kind taken or omitted to be taken in connection with the administration of the Trust ifin good faith reasonably believed by such Trustee to be in accordance with the provisions and intent hereof, except for any matter involving suchTrustee's own willful misconduct or gross negligence proved by clear and convincing evidence and (b) the Trustee shall be [uUy indemnified by the trust estate against any claim or demand by any trust beneficiary or trust creditor, except for any claim or demand based on such Trustee's own willful misconduct or gross negligence proved by clear and convincing evidence .. In no event shall any Trustee hereunder be liable for any matter with respectto which he. she or it is not authorized to participate hereunder (including the duty to review or monitor trust investments).

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5.3.6 Incomoration by Reference. For purposes of the administration of any trust hereunder in any jurisdiction other than Nevada, the Nevada statutes rel~ting to Trustee's powers as they exist on the date ofthe execution of this instrument are incorpo~t€id herein by reference and shall be effective as fully as if it Were set out at length in this instrument, and the Trustees shall have, in addition to the powers expressly granted in this instrument, all of the powers conferred or provided for by 'said provisions to the extent that such pOwers are Qonsistent with the powers expressly granted in this instrument. .

5.3.7 Release of Powers. Every administrative power c~ated by this instrument is releasab Ie in whole or'in part,' temporarily or irrevocably. Any such release may be acco,m­pUshed by an instrument in writing filed with the Trustees or by any other method allowed by law.

,5.3.8 RqJorts. Periodic reports shall be rendered by the Trustees to each beneficiary eligible to receive the ctirrenUncome, showing the assets then held-as the principal of the trust and all of the receipts, disbursements and distributions during the period. Sucb reports shall be rendered not less frequently than annually. Reports to any benetici~ who is under a ' legal disability may he rendered directly 'to s1,1ch bencficiaryorto anyparenttguardian, commit­tee, conservator, or other personal representative of such beneficiaryt or to any a~ult person with whom such beneficiary resides.' The records of the Trustees with . respect .to· a tn,lst shall be open at all reasonable times to the inspection of the beneficiaries of such trust and their accredited representatives. .

5.3.9 Compensation. Any Trustee under this instrument shall be entitled to compensation commensurate with tbe,services aca.ally perfonned and to reimbursement for expenses properly incurred, except that the Corporate Trustee shall be entitled to receive commissions or.other compensation for itssetvices as a Trustee in ~corda:ru::e with th~ schedule of rates, including applicable minimum, fees and adjustments tQ conform to st~tutory rate changes, which the Corporate Trust~e publishes and which shall be in effect from time to time or as specified in a separate letter agreement. .

. 5.3.10 Discretion not to infonn or account to discretionary beneficiaries. During the shorter oft,h~ Settlor's lifetime or judicial detennination of the incapacity of tho Settlor, the Trustee shall not be required to infonn any beneficiary (other than the Settlor) who is not entitled to a mandatory distribution of income or principal from the trust on an annual or more frequent basis (i) of the trust; (ii) a court in which the trust maybe registered; or (iii) the Trustee's name and address. In addition, during the shorter ofthe Settlor's lifetime or judicial detennination of the incapacity of the Settlor. the Trustees shaH not be required to provide any beneficiary (other than the Settlor) who is not entitled to a mandatory distribution ofincorne or principal from the trust on an annual or more frequent basis with a copy of the terms ofthe trust and shall not be required to provide a statement of accounts ofthe trust. The Trustee and the Trustee's officer, agents, and elTlployce~, if any, shall be indemnified ()ut of and held harmless by the trust estate from any and all liability to any beneficiary for any loss of any kind that may result by reason of any action.or nOll-action taken by the Trustee and the Trustee's officers, agents, and employees in accordance \vith the directions in this Section 5.3.10.

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5.4 Constructional Rules

5.4.l Issue. "Issue" means all persons who are descended from Settlor. However, for the purposes of the foregoing, an adopte(t person shan be considered as descended from the person referred to only ifbe has been adopted while under the age of 18 years.

5.4.2 -Order of Death. If any grandchildofthe ~ettlor dies simultaneously with the death of one of his parents who was Settlor's c~ildor under such circumstances that there is not. in the judgment of the Trustee, whosedecisionshaU be conclusive, sufficient evidence to. detcnnine which of such persons survived the other, sucbgrandchild shall be deemed to have surVived such child for purposes of Section 3.4 of this instrument.

5.4.3 . Court Decrees. All decrees of adoption of persons under the age of 18 years and all deCrees of divorce at any time renderedby.courts of record shall be considered valid for all purposes of this instrument. .

504.4 - Child ipGestation;Achildingestationwho islater'bom a1iVeshall be .. considered as a Hving child throughout the period of gestatioil~

. .

504.5 Trustee. Unless a contrary meaning or reference shall be expressly indicated or clearly implied from the context, the word. ''Trustee"and the pronoUn "ie' uSed in reference to Trustee always refer interchangeablyto the male or female person or persons or to the institution or any corribination ofthem then acting as the Trustee orany trust established hereunder. Thetenn "Trustee",unlessotherwiseindicated in this Trust, sna11 refer to the

. Investment Trustee and the Qualified Person Trustee colIectively.

SA.6 Governing Law. The:; validity, construction and effect of the provisions of . this Agreement in a11 respects shall be governed and regulated according to and by the laws of the State of Nevada . The administration of each Trust shall be governed by the laws ofthe state in which theTI1lst is being administered. .

5.4.7 Situs. The original situs of the trusts created hereunder shall be Nevada. The situs orany trust created hereunder maybema.llttained in any jurisdiction (including outside the United States), as the Investment Trustee, in the exercise of the InvestmentTrustee's sole and absolute discretion, may determine, and thereafter transferred at any timeo! times to any jurisM

diction selected by the Investment Trustee. Upon any such transfer of situs, the trust estate may thereafter, at the election of the ·Investment Trustee of said trust, be administered exclusively under the laws of(an.d subject, as required, to the exclusive supervision of the courts of) the jurisdiction to which it has been transferred. Accordingly. if the Trustees of any trust created hereunder elect to change· the situs of any such trust. the Trustees of said trust are hereby relieved of any requirement of having to qualify in any other jurisdiction and of any requirement of . having to account in any court of such other jurisdiction. .

. 5.4.8 Other Principles of Construction. Words many gender shall be deemed to include the other genders; the singular shall be deemed to inc1udethe·plural and vice versa; the words "pay" and "distribute" shall also mean assign and convey; and the headings and underlined

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paragraph titles are for hruidance only and shall have no significance in the interpretation of this instrument. .

. 5.4.9 "Per Stimes" .. This term means that if any designat~ ,beneficiary is dead at the time that beneficiary's right to a distribution would have vested· if alive. then that distribution shall be distributed to the deceased benefldarYa issue byrlghto'frepresentation. For instancet .i f on~ the date the right to distribution vests a beneficiary is deceased, distribution 'shall be made to that beneficiary's children in equal shares. If the deceasedbeneficiaty,has a child who is ill so deceased, that deceased chi1d~s share shall. be distributed to the deceaSed child'~ children in equal shares. If a deceased beneficiary bas n9 issue., that beneficiary's share shall lapse. . Distribution on account. of any other deaths shall· be handled in'like mapller,

5.5 Trust Irrevocable. The Trust hereby established is irrevocable. Settlot reserves any power whatsoever to alter or amend any of the tenns or provisions hereof.

·5.6 Binding Effect. This instrument shall.bind the respective heirs, personal representatives, successors· and assigns of the Settlor and the T~8tees ..

IN WITNESS WHEREOF, the parties have executed this instrument on the day and year first above written.

STATE OF UTAH ) . )ss.

COUNTY OF SALT LAKE )

SETTLOR:

Charles F. Dahl .

On a~,A,.J..-...:2$ ., 2002, personally appeared befo~ me CharJes F. Dahl, Settlor, whose identity is known to me or proven on the basis of satisfactory evidence to be the person whose ~ame is subscribed to The Dahl Family Irrevocable Trust, acknowledged to me that he executed the same. .. .

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C. Robert Dahl

CbIOI-/.ldo STATEOF~ )

. . ...•. Q~ rf:'~I'SDjl ) 5S.

COUNTY OF SAfTtAKE )

. On .. 01) f'(~rn· bE>.,.. fc ; 2002, personallyappeared~eforem~ C. Robert Dahl, Investment Trustee, whose identity is known tOJneor prpvenon the basis of satisfactory evidence to be the person whose name is sub~ribed to The. Dahl Family Irrevocable Tnll;t. acknowledged tome that he·executed.the saine.

..~ .... jjii .. -fYhs~ N6i@pUblic . ... , ..

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SPECIAL TRUSTE~:

Lee S. McCullough, m

STATE OF UTAH ~ 58. COUNTY OF SALT LAKE )

On CJ.::toL,,.. .:< 3. ' 2002, personally appeared before me Lee $. McCullough, ill, the Special· Ti'Qstee, whoseidentItylslmown to me ot proven on thc;·baSis··Qfsiitisfactory evidence to be the 'person whose name is subscribed to The Dahl Family Irrevocable Trust, acknowledged to me that he executed the same.

Notary 1(: . ..

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Form SS~4 Application for Employer I~entification Number

(Rev. December 20011 Oeportmam or ,twI T'~""u'y

(For use by employers, corporations, Pilrtnerships, trusts, estates, cnurches, government agencies, certain individuals, and others.) OMB No. 1545·0003

See S8 arate instructions for each line. Kee a co for our records t Nam,S 0" entity (or individual for whom th~ &IN Is beino requestedl

The Dahl Family Irrevocable Trust 2 Trade name of business. it different. from name in line 1 3 El<6culor. trustee. ~clll'e of" ,name

C. Robert Dahl. Tn,lrne~ ,

4a Mailing uddress (room. apt., suite no. and slreet or P.O. SOle)

1055N. 600 W. Sa Street addlW$ (if different; (Do No-t enler a P,O. Boxl

4b City. state. end ZIP code

Provo, Utah 84604 6 County and state where principal business Is located

Utah County, Utah 7a Name of principal officer, general partner, grantor, owner; or truslor .~

CharlesF. Dahl, Grantor 8a Type alentity (Chackonly one box.1

Ci,Sole Proprietor (SSN) __ ...L1 __ --''--___ _

o Pannership " ' cCorporiltlon renter form number 10 be filed _.....; ___ --'_;-------

o Personal service COlpot'ation [J Church or church· controlled organization

Sb City, state,and ZIP code

7b SSN. ITIN, or EIN 6Z7-9Z-3096

C Estate (S$N of d_tlentl IJ Plan edministrator.SSN aTru~tl~$N. ' ofgranto,r) c National Guard', 'I .oStateltocal government

C Farmer's cooperative o RENlie gov8irt~t8/enterprlse ,

, a Federal governmantlmilltarv o Indian tribal

CJ Other nonprofit Organizntion(~eCifYl' __________ .:.-__ _ Group Exemption NUl'TIb8r (GEN) _____________ _

o Other (5 ecil ) 8b "a corparation, name Ihesta,te or foreign couOlry

til I licable) where incor orated State

9, Reason ror'applylnglcbeck only one box.l

Cl Started new business (specitv tvpet

C Banking 'purpose (Spaclfypurpose I, ___________ _

CI.Chanoed type of,orlianlzatlon (Specify new type) _______ _

o Purchased gOing busine.ss , o Hired Ilmpioyees {Check the'bol{ and aea line lZ.1 a Created a trust (lIJl!iIclfy typel trrevocable Trust o Colnpliance with IRS withholdlngreoulalions o Created a penlliDn,plan(speeify type) ___________ _

o Other 15 eci' ) , 10 Date ,businass started or acquired (Mo., day. year} (See instructions I 11 enter closing month of accountlngyelJr~ (See inStrucllons.)

, 'December ' ' 12 Firs1 dale wages or annuities WE!re paid or will be palo (Mo,. day, vear) , NOTE:" 6pp/ir;ant Is B witllho/ding agent, ,Migi' dat" income will first be fRIld to

nonresident alien. '(Me .. da, e8r) , 13 Enter highest number 01 employees expected in the next 12 months. Note: If,the BfJplk:6nr does not 9Mpact

, to have any O(rI(iloyees during tl'f! period. enter wOo • ' AgrIcultural

o Household

o Other

o 14 Check anI box that besl do scribes the principal activity, of your business. 0 Health care & ,social as~stance o Wholesale·aoeritlbroker

o Construction ~ Runtal & leaSing 1:1 Transponation -& warehousing ,IJ Accommodation &. fOo<:l service c WholesalB-other !l Retail

1:1 RealEstato iJ Manufllcturing IJ Finance & insurance b. Other (specify) General Investments 15 Indicate principal tine of meretlandise sold; specify construction work done; products producecl or seril'lces provided. 16a Has the applicant ever Ilpplied for an iclentificlltion number for this or any other businesII7

Note: /I ·Yes, " e'asse complato linell 17b lind. '17c. ' , I) Yes 11'1 No

16b If you checked Ille ·Yes" box in line 16a, give applicant's legal nama and fradename shown on prior application if different form line 1 or 2 above. legal name ' , Trade Name '

17c fnter approximate date, city, and state where the application was filed ancl the previous employer identlflcetion number if known. Approximate date when filsd!Mo., day, year) I City and Slate wharefllad I, Previous F'N

J Complet" 'hls ,gction onrv II you wan to aulhorl2. \t1e named indhridual to fecelWlthe enti!o Em arid anSW1lr qUHtlons lIboIIl ,he completiOn of thl. form.

Third 1 Designee's Name I Lee S, McCullough, III

,Oe~1I9nee'$ pltone number linclude area'code)

(801) 426·8200

Party Designee

I Address and ZIP code I 4296 N. 300 W.

~signee's fax nUmbet (Include area code)

t Provo, Utah 84604 Urld.r pcn&ltlu or perjury, I d.clare tho, I h&vo ex.mlne" Ihl. ""plio.lll"n, and to tile lIos! 01 my knowfeclg. and beIlaf,lt 1$11110, COrrOl;!, .nd compfau',

Name and title {Plense tvpa or print !Olearly.) Charles F. Dahl, Grantor

Sianaturs For Privacy Act and PaperwGrk Reduction Act Natlet, see separate instructions. CIt. No 1605&N

(a01) 426-8208

1IIIIIIIIIflllllllllllllllflllllllllil APpr.cant's phone number frncfude area 'code) () ,

APplicant's fax nllmber /include atea codt2J ( )

Form SS4 (Rev. 12-20011

ADDEND·UM Exhibit "C"'-Warranty Deed of Vintage Drive .

Home and.Property into Dahl Family ' .. Irrevocable Trust

I I

I I f I

.-.... ~ ... --........ -....... -.-~- ......... -

EHT·N9

036081Z003 PG 1 of 1 .

TW,:HI1153;7l6

MAil TIl:': Notice to:

RA ALL A. COVINCiTON UTAH COUNTY ~ECORDER ~~CQ03RDJUn 23 .9:0i an fEE 10.00 BY 511 '"' ED FOR TIm kESi nm CO~AIlY

GrElJ'ltc~ at address below

WA..R.RANTY .DEED CWlei F. Dab.I and Ki~,Dahl, GRANTOR

hereby CONVEYS AND WARRANTS TO

C, Rober1: DabITrustee. of The DIiliI Family J:rreT'oClilile Trust nfald October 23 l002 .., . . J

GRANTEE(S) . of: 4~:U 1'1 crib VinfagriDril'~ Provo UT 34504

for the sum of ($10.00) Ten Dollarsimd other goo~ ~d valuable ocllSidera:tlo~ the. followlDg de&cribed t1:actof land in Utah County, Sta~ofUtah, to-:-wit: ... .

Lot 2, Plat '~"~ coIl~inedwl.thin Vintage on the RiverJ a :?lal1t1ed Unit J)ev~opplent,as sbowilin the Plat, recorded hi the Co IOlty ReCDrder o~ Utah CoUIltyt Utah, ae Entij No. l!lU76 (arsa:id Reeor-d ofS'urvey¥ap ma:Y have

• 81li ,heretoiore b~n aJ?landed or supplemented) •. Subje.ctto .the Declaration of' " !I';i Covenants. CoI1d1tlow,ReStdc&ns o!ViJitllge oll.the rover, aPlaliXlBdUnit iiE:! e,! DBVelopmeJ1tJ recorcb~ ill theofflcill oftbeUtab:CGunty Reermier IlS Entry No. ~ :I .. ;-:-: < 5867. in Boolt 3614,atPage 481 (as the aame is amended or madifieti).

R ~8~;-: &Ii &;g =!f c: ;p8 s,l.l

m j;f~ij

.. _i&~.i~ .!.=~, Eo="'''' :."·8"',g 0:"

Togetherw.lth a rJg:htlUld easement of use and en.il1J'mentbl.and to the Com,moJl Areade&crlbed,a:adltspro'l'ided for, io saidPeclaration afEllsemep.1:s. COvenaJitS, Conliffion. andRestricficus (asaald Declantlo11lUSY have heretofore beell Illneuded PT 5Uppiementedj. .

O.g ~l:;~ U .. "t::''''~l$ , ,

~ g ~~i Subj~t to aU resbictions. easem~ts, and rigb:ts-oi'wway of record and cilll:en:!: property'

;;i-mSStb.e hand of said Grantor this~ da; of ~6· -2 . .200.,3.

COUNn OF 1JT AH ) : SS.

STATEOFJJTAlI)' D,. '. . - . On the 20 day of ",~ 2r:93·, Ch.arles F. Dahlll.n.d Kim Dahl, personally

appeared before we: , the signor of the; ~thin instrument who duly acknowledged before <me that . they exec . .

~ ...•. ' Fleccc;,JOHNSON ~. ~

II mR(,pUBLX: • srm g( UI:4i/. . . • NORTl{l5CQ\'/E&i _ ~~ __ _ ~Ul'1>.H~

... • '" OOMM. c;):P. 5-22·21JOo6

ADDENDUM Exhibit "D"-CourtDocketofKim Dahl v.C.

Robert Dahl, as Investment Trustee of the Dahl Family Irrevocable Trust, . The Dahl Family Irrevocable Trust, Dr. Charles Dahl, et al., Fourth Judicial District Court in ~nd for Utah County, State of Utah, civil no. 120400606

4TH DISTRICT COURT- PROVO UTAH COUNTY, STATE OF UTAH

KIM DAHL vs. DAHL F AM:rL Y IRREVOCABLE TRUST

CASE NUMBER 120400606 Miscellaneous

CURRENT ASSIGNED JUDGE LYNNWDAVIS Division 8

PARTIES.

Plaintiff - KiM DAHL Represented by: STEVE S C~STENSEN Represented by: sAMtJEfisORENSEN Represented by: DAVID M CORBETT

Defendant - DAHLF:Mv1IL YIRREVOCABLE TRU~T

Defendant - C ROBERT DAHL· Represented by: ROSEMOND V BLAKELOCK

ACCOUNT SUMMARY

TOTAL REVENUE Amount Due: 631.75 Amount Paid: 631.75

Credit: 0.00 Balance: 0.00

REVENUE DETAIL- TYPE: COWLAINT - NO AMT S Amount Due: 360.00

Amount Paid: 360.00 Amount Credit: 0.00

Balance: 0.00

REVENUE DETAIL - TYPE: JURy DEMAND - CIVIL Amount Due: 250.00 Amount Paid: 250.00

Amount Credit: 0.00 Balance: 0.00

REVENUE DETAIL - TYPE: COpy FEE Amount Due: 11.75

AmountPaid: . 11.75 Amount Credit: 0.00

Balance: 0.00

Printed: 11/07112 12:46:55 Page 1

CASE NUMBER 120400606 Miscellaneous

REVENUE DETAIL - TYPE: AUDIO TAPE COpy Amount Due: 10.00

Amount Paid: 10.00 Amount Credit: 0.00

Balance: 0.00

CASE NOTE

PROCEEDINGS

04-24-12 Case filed 04-24-12 Judge LYNN W DAVIS assigned. 04-24-12 Filed: COMPLAINT 04-24-12 Fee Account created Total Due: 360.00 04-24-12 Fee Account created Total Due: 250.00 04-24-12 COMPLAINT - NO AMT S Payment Received: 360.00

Note: Code Description: COMPLAINT - NO AMT S, Code Description: JURY DEMAND - CIVIL

04-24-12 JURY DEMAND - CIVIL Payment Received: 250.00 04-26-12 Fee Account created Total Due: 11.75 04-26-12 COPY FEE Payment Received: 11.75

Note: 20.00 cash tendered. 8.25 change given. 06-19-12 Filed: Ex Parte Motion to Allow the Filing of an Over-length

Memorandum Filed by: BLAKELOCK, ROSEMOND V

06-19-12 Filed: Motion to Dismiss Pursuant to Rule 12(b )(6) of the Utah Rules of Civil Procedure Filed by: BLAKELOCK, ROSEMOND V

06-19-12 Filed: Memorandum in Support of Motion to Dismiss Pursuant to Rule 12(b)(6) of the Utah Rules of Civil Procedure

06-29-12 Filed: Plaintiffs Memorandum in Opposition to Defendants' Motion to Dismiss Pursuant to Rule 12(B)(6) of the Utah Rules of Civil Procedure

07-06-12 Filed: Reply Memorandum in Support of Motion to Dismiss Pursuant to Rule 12(b)(6) of the Utah Rules of Civil Procedure

07-06-12 Filed: Motion to Convert Defendant's Motion to Dismiss to a Rule 12(b)( 6) Motion or in the Alternative to a Motion for Summary Judgment Filed by: DAHL, C ROBERT

07-23-12 Filed: Plaintiff's Response To Defendants' Motion To Convert Defendants' Motion To Dismiss To Rule 12(B)(6) Motion Or In The Alternative To A Motion For Summary Judgment

08-10-12 Note: Request to Submit placed on Judge's Board for review. 08-10-12 Filed: Defendants' Second Motion to Dismiss Pursu.ant to Rules

12(b)(6) and 56(c) of the Utah Rules of Civil Procedure Filed by: BLAKELOCK, ROSEMOND V

08-10-12 Filed: Request to Submit for Decision the Defendants' Second Motion to Convert Motion to Dismiss to Convert Motion to

Printed: 11/07/12 12:46:55 Page 2

r

j

CASE NUMBER 120400606 Miscellaneous

Dismiss to a Rule 56 Motion for Summary Judgment and the Defendants' First Motion to Dismiss

08-10- i2 Filed: Reply Memorandum in Support of Defendant's Motion to Dismiss or Convert to a Rule 56 Motion for Summary Judgment

08-13-12 Filed: Defendants' Second Motion to Dismiss Pursuant to Rules 12(b)(6) and 56(C) of the Utah Rules of Civil Procedure Filed by: DAHL, C ROBERT

08-13-12 Filed: Memorandum in Support of Defendants' Second Motion to, Dismiss Under the 12(b)(6) and Rule 56 of the Utah Rules of Civil Procedure

08-29-12 Filed: Plaintiffs Memorandum in Opposition to Defendants' Second Motion to Dismiss Un,der 12(B)(6) and Rille 56 of the Utah Rules of Civil Procedure

09-10-12 Filed: pefep.,4atlt'sThiI-d)v'rgtion to Pis111is,s Pursuantto Rules: 12(b )(6) and 56( c) of the, Utah Rules of Civil Procedure

09-10-12 Filed: Mem()randum in Support of Defendanfs Third Motion to Dismiss Under 21(b )(6)ii.nd Rule 56 of the Utah Rules of Civil

" ProcedUre " " " " ,'",' ," , " " " " " " 09-18-12 Filed: Reply Memorandum in SUPP9rtofDefendants'Second Motion

to Dismiss or for Summary Judginent 09-18-12 Filed: Request to Submit for Decision the Defendants'Second

Motion to Dismiss ' 09-18-12'Filed: Certificate Of Service Of Defendants' Initial

Disc10sulres 09-26-12 Filed: Reply Memorandum in Support ofDefendailts'Third Motion

to Dismiss Under 12(b)(6) and Rule56 ofthe Utah Rules of Civil Procedure

09-26-12 Filed: Request to Submit for Decision the Defendants' Third Motion to Dismiss

10-09-12 Filed: Request for Hearing 10~11-12 ORAL ARGUMENTschedrtledonOctober 25,2012 at 02:00PM in

Third floor, RID 301 with Judge DAVIS. 10-11-12 Notice - NOTICE for Case 120400606 ID 14809606

ORAL ARGUMENT is' scheduled. ' Date: 10/25/2012 Time: 02:00 p.m. , Location: Third floor, RID 301

FOURTH DISTRICT COlJRT 125N lOOW PROVO, UT 84601

Before Judge: LYNN W DAVIS

The Court has set aside 2 hours for oral aguments on all pending motions.

10-13-12 Filed: Motion to Disqualify Rosemond Blakelock Filed by: DAHL, KIM

10-13-12 Filed: Memorandum in Support of Motion to Disqualify Rosemond Blakelock

10-25-12 Minute Entry - Minutes for ORAL ARGUMENT

Printed: 11/07/1212:46:56 Page 3

CASE NUMBER 120400606 Miscellaneous

Judge: LYNN W DAVIS Clerk: treenah PRESENT Plaintiff's Attomey(s): DAVID M CORBETT Defendant's Attomey(s): ROSEMOND V BLAKELOCK Audio Tape Number: 301-12 Tape Count: 2:02

HEARING

This matte comes bef01:e the court for oral arguments. Court give procedural posture of case. :M:r. Corbett addresses the motion's. before the court, Ms. BlakeIock responds arid discussion ensues.' Court denies motions to dismiss. Court stay the case pending decisions to be made within other .

courts. Ms. Blakelbck will prepare the order.

10-25-12 ADRMediation 10-30-12 Fee Account created 10-30-12 AUDIO TAPE COPY

Printed: 11/07/12 12:46:56

Total Due: 10.00 Payment Received: 10.00

Page 4 (last)

ADDENDUM

EXHIBIT E

. STATUTES

EXCERPT FROM NEVADA STATUTE CHAPTER 163.:. TRUSTS MISCELLANEOUS PROVISIONS

NRS 163.558 Authority of settlor to specify conditions. Except to the extent that it violates public policy, a settlor may:

1. Make a devise conditional upon a beneficiary's action or failure to take action or upon the occurrence or nonoccurrence of one or more specified events; and

2. Specify the conditions or actions which would disqualify a person from serving or which would constitute cause for removal ofa person who is serving in any capacity under the trust, including, without limitation, as a trustee, trust protector or trust adviser.

(Added to NRS by 2011, 1465)

NRS 163.560 Irrevocable trust not to be .construed as· revocable. 1. If the settlor of any trust specifically declares in the instrument creating the trust that

such trust is irrevocable it shall be irrevocable for all purposes, even though the settlor is also the beneficiary of such trust.

2. Such trust shall, under no circumstances, be construed to be revocable for the reason that the settlor and beneficiary is the same person.

(Added to NRS by 1973, 312)

NRS 163.565 Effect of di:vorce or annulment of marriage of settlor on revocable inter vivos trust. Divorce or annulment of the marriage of a settlor revokes every devise, beneficial interest or designation to serve as trustee given by the settlor to the fonner spouse of the settlor in a revocable inter vivos trust executed before the entry of the decree of divorce or annulment unless otherwise:

1. Provided in a property or separation agreement that is approved by the court in·the divorce or annulment proceedings; or

2. Ordered by the court in the divorce or annulment proceedings, :E and the revocable inter vivos trust provisions take effect in the same manner as if the spouse had predeceased the trustor.

(Added to NRS by 2{)03, 342)

NRS 163.570 Powers of trustee concerning gifts made by surviving spouse of decedent. A trustee may:

1. Join with a decedent's surviving spouse or the personal representative of the decedent's estate in the execution and filing of a joint income tax return for any period before the decedent's death for which the decedent had not filed an income tax or gift tax return on gifts made by the spouse;

2. Consent to treat such gifts as having been made one-half by the decedent for any period before the decedent's death; and

3. Pay such taxes thereon as are chargeable to the decedent. (Added to NRS by 1979,455; A 1999, 2375)

Title 75

Chapter .1

Section 201

Utah Uniform Probate' Code

General Provisions, Definitions, and Probate Jurisdiction of Court

General definitions.

75-1-201. General definitions. Subject to additional definitions contained inthe subsequent chapters that are applicable to specific

chapters,parts, or sections, and unless the context othenNise requires, in this code: (1) "Agent" includes an attorney-in-fact under a durable or nondurable powerof attorney, anindividual

authorized to make decisions concerning another's health care, and an individual authorized to make decisions for another under. a natural death act.

(2) "Applicationuriieans a written requesttothe registrar for an order of informal probate or appointment under Title 75, Chapter 3, Part 3, Informal Probat~and Appointment Pr()ce:.edings~ .

(3) "Beneficiary," as it relates to trust benefieiari~s, incluciesa person whohas any present.orfuture interest, vested or contingent, and also includes the o'Mlerof an interest by assignment or other transfer; as it relates to a charitable trust, includes atiypersohentitiedto enforcethftrust;a::s ifrelatesto a'''benefidatYOfa:~erief'idary' designation," refers toa benefipiaryofan . .insuranceor annuity policy, of anaccountVJith POD designation, ofa' security registered in beneficiary form ("(OD) , or of a pension,prbfit-sharing,. retirement, or ~imilarbenefitplan, or other nonprobate transfer at death; and, as it relates toa "beneficiary ~esignated in a governing instrument," includes a grantee ora deed, adevisee, a trust beneficiary, a beneficiary ofabeneficiary designation, adonee, appointee, or taker in defaUlt of a power of appointment, and a person in . whose favor a power of attorney or a poWer held in any individual, fiduciary; or rEilpresentativecapacityis exercised.

(4) "BenE;lficiary d(;lsignation" refers toa governing in$trument naming abeneficiary ofan insurance or annuity policy, of an account with POD designation, ofasecurity registered in.beneficiary form (TOD), or of a pension, profit-sharing, retirement, orsirnilar benefit plan, or other non probate transfer at death.

(5) "Chil.d'i includes any individua~ entitled to take asachild underttlis code by intestate succession from the parent Whose relationship is involved and excludes any person who is only a stepchild,a ·foster child, a grandchild, or any more remote descendant.

(6) "Claims," in· respect to estates of decedents and. protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort, or othenNise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral· expenses ,and expens;es of administration. "Claims" does not include estate or inheritance taxes, or demands or disputes regarding title ofa depedent or protected person to specific assets alleged to be included in the estate.

(7) "Conservator" means a person who is appointed by a court to manage the estate ofa protected person. (8) "Court" means any of the courts of record in this state having jurisQiction in matters relating to the affairs

of decedents. (9) "Descendant" of an individual means all of his descendants of all generations, with the relationship of

~J parent and child at each generation being determined by the definition of child and parent contained in this title. (10) "Devise," when used as a noun, means a testamentary disposition of real or personal property and,

when used as a verb, means to dispose of real or personal property by will. (11) "Devisee" means any person designated in a will to receive a devise. For the purposes of Title 75,

Chapter 3, Probate of Wills and Administration, in the case ota devise to an existing trust or trustee, or to a ~ trustee in trust described by will, the trust or trustee is the devisee,

and the beneficiaries are not devisees. (12) "Disability" means cause for a protective order as described by Section 75-5-401.

. • •••••••••••••••••••••••• u ••

(13) "Distributee" means any person who has received property of a decedE;mt from his personal representative otherthan as a creditor or purchaser. A testamentary trustee is a distributee only to the

· .extent of distributed assets or increment thereto rem.a.ining inhish«;:lnds. A beneficiary of a testamentary trust to whom the trustee has distributed property received frbrnapersonal representative is a distributee of the personal representative. For purposes of this provil=1ion, "testamentary trustee" includes a trustee to whom assets are transferred by 'Atm, to the extent ofthedevised assets.

(14) "Estate" includes the property of the decedent, trust,or oth~rperson whose affairs are subject to this title as originally constituted and as it exists from time tb time during administration.' ' '.

(15) "Exempt property" means that property of a decedent's 'estate which is described in Section ??..:~.::4..9..~

(16) "Fiduciary" includes a personal representative, guardian, conservator, and trustee. (17) "Foreign personal represeritative~' means a personal representative of another jUrisdiction. (18) "Formal proceedings" means proceedings conducted before a judge with notice to interested

persons. (19) "Governing instrument" means a deed, will, trust, insurance or annuity policy" account with POD

designation, security registered in beneficiary form (TOO), pension;profitwsharir'lg, retirement, or similar benefit plan, instrument creating,or exerciSing a pbwerofapPointment or a power ofattorney, or a dispositive, appointive, or nominative instrument of any similar type.

(20) "GuCirdian" means a person who has quaUffedasa guardian of a minor or incapacitated person pursuant to test~hientary or cou-rtapp~intmen't, -or b~l.\~itten -it~str~ment as provided in $~~tio"n ,?,.?:?:::?'.9.:?'.~.?., but excluqes one who is merely a guardian ad litem.

(21) "Heirs," e):{cept as controllec:l by Secfion1'S,.2 .. 7'1'1, meansp'ersons, including the survivit1gspouse and state, who are entitled under the statutes ori~:te~iate succession to the property of a decedent.

(22) "Incapacitated person"mearls any person who is irnpairedby reason of mental illness, mental deficiency, physioal illness or'disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.

(23) "lnformal proceedings" mean those ·conducted without notice to interested persons by an officer of the court acting as a registrar for probate of awiU or appointment of a personal representative.

(24) "Interested. person" includes heirs; devisees, chHdren, spouses, creditors, beneficiaries, and any others having a property right in or claimaga'insta trllst.estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, other fiduciaries representing interested persons, a settlor of a trust, if living, orthe settlor's legal representative, if any, if the settlor is living but incapaCitated. The meaning as it relates to particular persons may vary from time to time and shall be determined acct:lrding to the particular purposes of, and matter involved in, any proceeding.

(25) "Issue" of a person means descendant as defined in Subsection (9).

(26) "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes cooWl1'ers of property held under circumstances that entitle one or more to the whole of the property on the death oftheother or others, but excludes forms of coownership registration in which the underlying ownership of each party is in proportion to that party's contribution.

(27) "Lease" includes an oil; gas, or other minersllease. (28) "Letters" includes letters testamentary, letters of guardians hi Pi letters of administration, and letters of

conservatorship. (29) "Minor" means a person who is under 18 years of age. (30) "Mortgage" means any conveyance, agreement, or arrangement in which property is used as security. (31) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his

death. (32) "Organization" includes a corporation, limited liability company, business trust, estate, trust, partnership,

- .'

" joint venture, association, government 6rgovetnrii~ntal subdivision or agency;.orany~ther legarorcbm~e[cial··· entity. .. ... ..... . . ..

(33) "Parent" includ.es9lly person entitled to take:, or Who wouldb~ entitled to take .Jfthe child died ~thouta will, as a parent underthis code by intestate succe9sionfrom the child whose relationship is inquestionand excludes·any person Who is only a steppar~ht, fosterparent, orgrandparent.

(34) "Payor" means a trustee, insurer, business entity, employer,-government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.

(35) "Person" means an individual or ali 9rganization .. (36) (a) "Personal representative" includes executor, administrator, successor personal representative,

special administrator, and persons Who perform substantially the same function under the law governing their status.

(b) "General personal representative" excludes special administrator. (37) "Petition" means a written. request tQ the court for all order after notice. (38) "Proceeding" indudes.action at law and suit inequity. (39) "Property" incl~desboth real and .personalproperty or any interest therein and means.anything that

may be the subject ofovvnership. . (40) "Protected person"mea,ns a person for whom a conservator haS been appointed. A "minor protected

person" mea~samin~rf~r ~~~a~~ns~~a·to/"hasbee~appoint~lbecauseoim·inority. . ..... . ....... .

(41) "Protective proceeding" means a proceeding described in Section 75;.5 .. 401. (42) "R~cord" mean.sinfbrm9tionttlcltisinscriged on a ·tangiblemediun:t or tnatisstored in an electronic or

other mediLJm and is retrievable in perceivable form~ (43) "Regist-rar" refers to the official of the court designated to perform the functiO-ns of registrarasprovid~d

in Section75-1-307; (44) "Security" il1c1udes any note, stock, treasury stock, bond, debenture, eVidence ofindebtedness,

certificate of interest, or participation in an oli, gas, or mining title or lease or in payments out ot'production under such a title or lease, collateral trust certificate, transferable share, voting trust c~t1ificate, and, in general, any int~rest or insttument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate,

receipt, or certificate of deposit for, or any warrant orrightto subscribe to or purchase, any of the foregoing. . .. . .

(45) "Settlement," in reference to a decedent's estate, includes the full process of a.dministration, distribution, and Closing.

(46) "Sign" means, INith present intent to ,authenticate or adopt a record other than alNill: (a) to execute or adopt a tangible symbol; or (b) to attach to or logically associate INith the record an electronic symbol, sound, or process. (47) "Special administrator" means a personal representative as described in Sections !.?:~.:~.~.~ through

75-3-618. (48) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto

Rico, any territory or insular possession SUbject to the jurisdiction -of the United States, or a Native American , tribe or band recognized by federal law or formally acknpwledged by a state.

(49) "Successor personal representative" means a personal representative, other than a spe9[r;l1 administrator, Who is appointed to succeed a. previously appointed personal representative.

(50) "Successors" means persons, other than creditors,Who are entitled to property of a decedent under the decedent's will or this title.

J (51) "Supervised administration" refers to the proceedings described in Title 75, Chapter 3, Part 5, Supervised·Administration.

(52) "Survive, "except for purposes of Part 3 of Article VI,Uniform TOD Security Registration Act, means that an individual.hasneither predeceased an event, including the death of another individual, nor is considered to have predeceased an event under Section ,?,?'::,:?':.~ .. Q~ or.?$.:,:~.:'?'Q.~. The term includes its

--' derivatives, such as "survives," "survived," "survivor," and "surviving."

(53) "Testacy proceeding" means(;lpr0geedlng to establish' a will ordetermihe' intestacy. (54) "Testator" includes an individual of$ither sex. " (55) 'Trust" includes a health savings ,acco!.mt,as defined in $ecti,on. 223,hiternal Revenue Code, any

express trust, private or charitable, '{vith add,itions th-ereto, wherever and however ,cre,ated.>The term also includes a trust created or determined by jud,grttent or ,decree Llnder lAAlich the trust istQbe administered in the manner of an express trust. The term exchla,es, other constructive trusts; and it excludes resulting trusts, conservatorships, personal representatives, trustacc9unts as defined in Titre 75, ,Chapter 6, Nonprobate Transfers, custodial arrangements pursuant to any Uniform Transfers To Minors Act, bosiness trusts providing f6r certificates to be issued to beneficiaries, common trust funds, voting trw;;ts,preneed funeral plans under Title 58, Chapter 9, Funeral Servia,es Licensing Act, security arran0ements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nqminee or escrowee for another.

(56) "Trustee" includes an original, additional, and successor trustee, and cotrustee, lAAletheror not appointed or confirmed by the court.

(57) "Ward" means a person for whom a guardian has been appointed. A "minor ward" is a minor for whom a gljardian has beel! ?ppointed sole!y b_~cause.of minority.

(58) "Will" includes codicil and any testamentary instrument which merely appoints an

executor, revokes or revises another will, nominates a guardian; orexpresslyexc!udes or limits the right of an individual or class to succeed. to property of the decedent passing byintest(;lte succession.

Amended by Chapter 93, 2010 ~eneral Session

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Title 75

Chapter 7

Utah Uniform Probate Code

Utah Uniform Trust Code

SectiQn 103 Definitions.

75-7-103. Definitions. (1) In this chapter: (a) "Action," with respect to an act of a trustee, inCludes a failure to act. (b) "Beneficiary" means a person that (i) has a present or future beneficial interest in a trust, vested or con-tingent; or (ii) ina capacity other than that of trustee, holds a pOVJer of appointment over trust property. (c) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in

Subsection 75-7-405(1). (d) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to

'protection of the environment. (e) "Ititerests of the beneficiaries" means the beheficialihter-estsprovided in the terms of the trust. (f) "Jurisdiction," With respect to a geographic area, includes a state or country. (g) "PoVJer of withdraVtiaI"means a presently exercisabl.e general poWer of.appointment other than a power

exercisable only upon consent of the trustee or a person holding .an adverse lriterest. . (h) "Qualified beneficiary" means a beneficiary who. on the date the beneficiary's qualification isdetermined: (I) is a current distributee or permissible distributee of tr.ustincome Of principal; or (ii) would be a distributee or permissible distributee of trustincomeor principal if the trust terminated on that

date. (i) "Resident estate" or "resident trust"means: (I) an estate of a decedent who at death was domicUed in this state; (Ii) a trust, or a portion of a trust, . consisting of property transferred by will of a decedent who at his death

was domiciled in this state; or (iii) a trust administered in this state. U) "Revocable," as applied to a trust, means revocable by the settlor without the .consent of the trustee or a

person holding an adverse interest.

(k) "Settlor" means a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke

. or withdraw that portion. (/) "Spendthrift provision" means a term of a trust which restrains both voluntary and involuntary transferor

encumbrance of a beneficiary's interest.

(m) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrunient or as- maybe established by other evidence that would be admissible in a judicial proceeding.

(n) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto.

(2) Terms not specifically defined in this section have the meanings provided in Section 75-1-201.

Enacted by Chapter 89, 2004 General Session

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Title 75

Chapter 7

Section 111

Utah Uniform Probate Code

Utah Uniform Trust Code

Rules of construction.

75·7·111. Rules of construction. The rules of oonstruction that apply to the interpretation of and disposition of property by will or other

governing instrument, as defihed in Section 75·1·201, also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.

Enacted by Chapter 89, 2004 General Session

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, oJ

Title 75 Utah Uniform Probate Code

. Chapter 7 Utah Uniform Trust Code

Section 411 Modification or termination of noncharitable irrevocable trust by consent.

75·7·411. Modification or termination of noncharitable irrevocable trust by consent~ (1) 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 INith a material purpose of the trust. A settlor's power to consent to a trust's termination may be exercised by an agent under a power of attorney only to the extent expressly authorized by the power of attorney or the terms of the trust, by the settlor's conservator vvith the approval of the court supervising the conservatorship if~n'agent is not so authorized, or by the settlor's guardian with the approval of the court supervising theguardicmship if;:!n agent is not so authorized and a conservator has not been appointed.

(2) A noncharitable, irrevocable trust may be terminated.uponconsent of all of the peneficiaries if the court concludes that continuance of the trust is not necessary toachieveanyrnaterial purpose of the trust. A . noncharitable, irrevocable trust may be' moaified upori cOnS611fofaU6f fhebel1efieiariesifthecourf concludes that modification is not inconsistent with a material purp()se oHhetrust . .

(3) A spendthrift provision in the terms of thetrusUs not presumed to constitute a material purpose of the . trust.

(4) Upon termination ota trust under Subsection (1)or (2), the trustee shall distribute the trust property as agreed by the benefiCiaries.

(5) If not all of the beneficiaries consent to a proposed modification or termination ofthe trust under Subsection (1) or (2), the modification or termination may be approved by the couct if the court is satisfied that:

(a) if an of the beneficiaries had consented, the trust could h.ave been modified or terrninated under this section; and

(b) the interests of a beneficiary who does not consent INillbe adequately protected.

Repealed and Re-enacted by Chapter 89,2004 General Session

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Title 75 Utah Uniform Probate Code

Chapter 7 Utah Uniform Trust Code

Section 412

Modification or termination because of unanticipated circumstances or inability to administer trust effectively.

75~7~412. Modification or termination because of unanticipated citcums,tanceso'rinability to administer trust effectively . .

(1.) The court may modifY the administrative or dispositive ti3rms of a trust or terminate the trust if" because of circumstances not anticipated by the settlor, modificatid,n or termination will further the purposes of the trust. To the extent practicable; the mQ9ification must be made in accordance with the settlor's probap/e intention.

(2) The .court may IT!0dify the admin,strativ~ terms of a trust if continuation of the trust on its existing terms would beirnpracticable or wasteful or impair the trust's administration.

(3) Upon termin?tionof a'trust under this section, the trustee shall distribute the trust property as directed by the court or otherwise in a manner consistent with the purposes of the trust.

Enacted by Chapter 89, 2004 General Session " '

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Title 75·

Chapter 7

Section 414

Utah Uniform Probate Code

Utah Uniform Trust Code

Modification ortermination of uneconomic trust.

75·7·414. Modification or termination of uneconomic trust. (1) After notice to the qualified bel1eficiaries, the trustee of a trust consisting of trust property having a total

value less than $100,000 may terminate the trust if the trustee concludes thatthe value ofthe trust property is insufficient to justify the cost of administration.

(2) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost ofadministration ..

(3) Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.. .

(4) This section does not apply to an ·easementfor conserVation or.preservation.

Enacted by Chapter 89, 2004 General Session .. Download Code Section ?~R..R..~q. WordP~rfect .?fL,Q,?"".Q4J.4..9.Q.:?!E 1 ,900 Bytes

Title 75

Chapter 7

Section 605

Utah Uniform Probate Code

Utah Uniform Trust Code

Revocation or amendment of r~v09able trust.

75~7-605. Revocation or amendment of revoc;;l~I~ trust. (1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend

the trust. This Subsection (1) does not apply to a trust created under an instrument executed before May 1, 2004.

(2) If a revocable trust is created or funded by more than one setttor: (a) to the extent the trust consists of community property, the trust may be revoked by either sp~use acting

alone but may be amended only by joint action of both spouse~; and (b) to the extent the trust consists of property other than community property, each 'settlor may revoke or

amend the trust with regard to the portion of the trust. property attributable to that settlor's contribution. (3) The settlor may revoke or amend a revocable trust: (a) by substantia.lly complYing With a mefhod provided in the terms of the tru'st; or (b) if the terms of the trust do not provide a method or the method provided in the terms is not expressly

made exclusive. by: (i) executing a later will or codicil that expressly refers to the trust or specifically devises property that would

otherwise have passed according to the terms of the trust; or (ii) any other method manifesting clear and convincing eVidence of the settlor's intent. (4) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. (5) A settlor's powers with respect to revoGation,amendnient, or distribution of trust property may be

exercised by an agent under a power of attorney only to the extent expressly authoriz~d by the terms of the trust or the power.

(6) A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only with the approva~ of the court supervising the conservatorship or guardianship.

(7) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.

Enacted by Chapter 89, 2004 General Session

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Title 78B

Chapter 6

Section 401

Judicial Code

Particular Proceedings

Jurisdiction of district courts -- Form -- Effect.

788-6-401. Jurisdiction of district courts -- Form -- Effect. (1) Each district court. has the power to issue declaratory judgments determining rights, status, and other

legal relations '.Mthin its respective jurisdiction. An action or proceeding may not be open to objection on the ground that a declaratory judgmenfor decree is prayed for.

(2) The declaration may be either affirmative or negative in form and effect and shall have the force and effect of a final judgment or decree.

Renumbered and Amended by Chapter 3, 2008 General Session

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Dtle788 Judicial Code

Chapter 2 Statutes of Limitations .

Section 305 Witl1in three years.

788-2-305. Within three ,.ars. An action may be brought within thrE!~ year$: (1) for waste, trespass upon, or injury to real property; except thafwhen waste or trespass is

committed by means of underground workS upon any mfning claIm; theca~se ~fadion does not accrue until the discovery by the aggrieved party of the facts constituting the waste or trespass;

(2) for takihg, detaining, or injuring petsonalpropel"o/~ in~luding '·actions forspe~ificrec9very; except that in cases where the-sLlbi~ctofthe action is's do'mestic animal usuanyiriclud~ in the term "livestock, II which at the time "of its loss has a recorded mark or ,br~nd, if the animal strayed or was

, staten from the true owner without the owner's fault, the cause does not aeerue uriti.1 the owner has actual knowledge·offaets that would put a reasonable person upon inquiry as to the possession of the anima/:by the defendant;

(3) for relief on the ground of fraud or inistake; except that the.cause Of action does not accrue until the diseoveryby the aggrieved party ofihe facts const~tuting the:fraud or mistake;

(4) for a liability created by the statutes of this state, other than for a penalty or forfeiture under the laws ·oUhis state. except where in sPecial cases a different limitation is prescribed by the statutes of this state; or

(5) to enfor-ce liability imposed by Section 78B:3-803, or for damages under Section7§B..§ .. 1701, except that the cause of action does not accrue until the aggrieved party knows or reasonably should know of the harm sUffered.

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----------Title78B Judicial Code

Chapter 2 Statutes of limitations

Section 307 Within four years.

78s;.2-307. Within·tour.years. An action may be" brought Within four years: (1) after the last charge is made or the last ~yment is received:· (a). upon a contract, obligation. or UabilKynot founded upon an instrument in writing; (b) on an open store aCc;ount for any goods. wares, .or merehandise;or (c) on an open account for work. labor or s~rvices rendered. or materials furnished; (2) for a claim for remafor a cause of action under the following sectiOns of Title 25, Chapter 6,

Uniform Fraudulent Transfer Act: -.- .

(al Subsection25-6~(1)(a), which in specific situations limits the time for action toone year, under Section25-6~10;

(b) Subsection 25;;;S~(1)(b); or (c) Subsection 25-6-6(1}; and

" (3) for relief not otherwise provided for by taw.

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