In re Ingledew Trust

2021 UT App 139
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE
WAYNE C. INGLEDEW TRUST.
DALE INGLEDEW, CLIFFORD INGLEDEW, AND EDWARD INGLEDEW,
Appellants,
v.
GRANT H. INGLEDEW,
Appellee.
Opinion
No. 20200344-CA
Filed December 16, 2021
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 193902076
J. David Milliner and Jacob B. Stone, Attorneys
for Appellants
R. Zenock Bishop, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In 2018, Appellant Dale Ingledew1 filed a petition against
his brother Grant, seeking to invalidate the Wayne C. Ingledew
Trust, a trust created by their father, Wayne Ingledew. The
petition alleged that Grant had exercised undue influence over
1. Because the parties all share the same last name, we refer to
each by first name, with no disrespect intended by the apparent
informality.

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Wayne in connection with the creation of the trust. It further
alleged that Grant, acting as trustee, had failed to provide a
proper accounting of trust assets and had improperly used trust
assets to pay for personal expenses. The district court entered
summary judgment in favor of Grant and dismissed the petition,
ruling the trust was valid and Grant, acting as trustee, had not
breached any fiduciary duties.
¶2 Dale and his brothers, Clifford and Edward, (collectively,
Appellants) then filed a second petition seeking to remove Grant
as trustee or, in the alternative, for an injunction restraining his
discretion. Grant again moved for summary judgment, this time
based on the doctrine of res judicata, which the court granted.
¶3 Appellants now challenge the district court’s grant of
summary judgment on their second petition, arguing the court
erred in concluding their claims were barred by res judicata. We
disagree and affirm.
BACKGROUND2
¶4 In 1985, Wayne created the Wayne C. Ingledew Family
Trust (the 1985 Trust). Under the 1985 Trust, Wayne’s assets
were to be divided equally among his nine children after his
death. Wayne named himself as trustee, his son Robert as first
successor trustee, and his son Dale as second successor trustee.
¶5 In 2010, without the knowledge of his children (except for
Grant), Wayne revoked the 1985 Trust and created a new trust,
the Wayne C. Ingledew Trust (the 2010 Trust). Wayne and Grant
2. When reviewing a grant of summary judgment, we view the
facts and all reasonable inferences in the light most favorable to
the nonmoving parties. Anderson Dev. Co. v. Tobias, 2005 UT 36,
¶ 31, 116 P.3d 323.

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were named co-trustees of the 2010 Trust, with Grant to become
the sole trustee upon Wayne’s death. After creating the 2010
Trust, Wayne conveyed all his major assets—consisting of five
parcels of real property that he owned—to the trust: his personal
residence (Wayne’s House); an empty lot (the Empty Lot); a
house Grant had previously owned (Grant’s House); a two-unit
duplex (Duplex 1); and a four-unit duplex (Duplex 2). Pursuant
to the 2010 Trust, all of Wayne’s children (the Beneficiaries),
except one who had been expressly disinherited, were to receive
a $500 distribution; Grant was to receive the Empty Lot; and the
remainder of the assets were to be distributed among the
Beneficiaries at Grant’s sole discretion.
¶6 In 2012, Wayne amended the 2010 Trust, directing that
after his death, Grant’s House, the Empty Lot, and Wayne’s
House should be distributed “outright and immediately” to
Grant (the 2012 Amendment).
¶7 In 2013, Grant purchased Duplex 2 from the 2010 Trust by
executing a promissory note in favor of the 2010 Trust for the
assessed value of the duplex (the 2013 Transaction). The note
included a loan forgiveness provision effective upon Wayne’s
death. Grant recorded a warranty deed and a trust deed on
Duplex 2, but neither document detailed his specific re-payment
obligations or the forgiveness provision contained in the note,
nor were these facts disclosed to Grant’s siblings at the time of
the purchase, though Grant did later disclose the fact of the 2013
Transaction to Appellants.
¶8 After Wayne died in the spring of 2018, his estate
planning attorney notified Wayne’s children via letter of the
2010 Trust and the 2012 Amendment. On September 5, 2018,
Dale filed a petition seeking to invalidate the 2010 Trust and
2012 Amendment and remove Grant as trustee (the First
Litigation).

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¶9 Dale’s petition in the First Litigation challenged the
validity of the 2010 Trust and the 2012 Amendment. It alleged
that the 2012 Amendment, under which Grant would receive
ninety-five percent of Wayne’s entire estate, “was a result of
Grant’s continued undue influence” on Wayne. It further alleged
that “Grant ha[d] failed to act according to his duties imposed by
the [2010] Trust and by Utah law” by failing to “provide
adequate disclosures and information to the beneficiaries” and
“consistently [using 2010] Trust funds to pay for personal
expenses, including but not limited to, expenses for real property
owned by himself personally.”
¶10 Grant filed a motion for summary judgment in the First
Litigation in December 2018, arguing no dispute of fact existed
and the facts proved that he had exercised no undue influence
over Wayne with respect to the creation of the 2010 Trust or the
2012 Amendment. He further alleged the material facts proved
that the 2012 Amendment did not substantively change the
provisions of the 2010 Trust, which had already given him, as
trustee, sole discretion to distribute trust assets.
¶11 On January 31, 2019, while the motion for summary
judgment was pending, Grant sent the Beneficiaries a letter
containing an inventory of the 2010 Trust assets (the January
2019 Letter). The listed assets did not include either Duplex 2 or
the promissory note that Grant had executed in favor of the 2010
Trust in connection with the 2013 Transaction. Despite being on
notice that the trust assets did not include Duplex 2 or the
promissory note, Dale did not raise this fact, or provide any
evidence supporting his petition, in opposing Grant’s motion for
summary judgment. Nor did Dale file an affidavit or declaration
pursuant to rule 56(d) of the Utah Rules of Civil Procedure
requesting that the court defer its consideration of the motion in
order to allow him to obtain affidavits or conduct discovery to
find out more information to respond to Grant’s motion. In
short, Dale functionally failed to defend against the motion.

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¶12 On April 8, 2019, the court in the First Litigation entered
summary judgment in favor of Grant and dismissed the petition.
It ruled that the 2010 Trust and the 2012 Amendment were valid,
and that Grant had not violated any fiduciary duty to the
Beneficiaries.
¶13 Upon receiving the court’s ruling, Dale retained new
counsel and filed a motion to set aside the summary judgment,
arguing that prior counsel had been negligent in failing to offer
evidence opposing the motion. In that motion, Dale provided
additional details to support the broad allegations of his petition.
He argued that Wayne had been in ill health and declining
mentally at the time of the transactions in question, and he also
alleged that Grant had “effectively transferred a parcel worth
more than $400,000.00 to himself.” He also asserted that the 2010
Trust “purportedly sold the parcel containing [Duplex 1 and
Duplex 2] to Grant, with the 2010 Trust lending Grant
$418,900.00 for the purchase, which debt appears to have been
forgiven by Grant following [Wayne’s] death.”
¶14 But the court in the First Litigation was unpersuaded that
these additional facts created a genuine dispute of material fact.
On September 20, 2019, the court denied Dale’s motion to set
aside the judgment, reasoning the newly presented evidence was
insufficient to create an issue of fact regarding any alleged
wrongdoing on Grant’s part.
¶15 Three days later, Dale, along with Clifford and Edward,
filed a new petition seeking to remove Grant as trustee or, in the
alternative, for an injunction restraining Grant’s discretion (the
Second Litigation). Like the petition in the First Litigation, the
petition alleged that Grant had breached his fiduciary duties to
the Beneficiaries. It traced the history of the 2010 Trust, the 2012
Amendment, and the 2013 Transaction. It alleged Grant had
used trust assets to pay the property taxes on Duplex 2 and
noted that the January 2019 Letter listing the assets of the estate

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included no mention of Grant’s promissory note for the
purchase of Duplex 2. It concluded that “Grant’s failure to
include the promissory note among the assets of the [2010] Trust
indicate[d] his intent to use his discretion as trustee to forgive
the promissory note,” thereby increasing his distribution of trust
assets at the expense of the other Beneficiaries.
¶16 Grant again moved for summary judgment, asserting the
claims in the Second Litigation were barred by both the claim
preclusion and issue preclusion branches of res judicata. As to
claim preclusion, Grant argued the First and Second Litigations
both involved the same parties and the same claims, and the
First Litigation had resulted in a final judgment on the merits.
¶17 The district court granted the motion for summary
judgment, concluding that because all the elements of claim
preclusion had been met, Appellants were barred from bringing
the Second Litigation. Specifically, the court found that both
suits involved the same party or privies, that the claims in the
Second Litigation were in fact raised or could have been raised
in the First Litigation, and that the First Litigation resulted in a
final judgment on the merits.
ISSUE AND STANDARD OF REVIEW
¶18 Appellants argue the district court erred in determining
that the claim preclusion branch of res judicata barred the
Second Litigation.3 “Whether a claim is barred by res judicata is
a question of law that we review for correctness.” Gillmor v.
Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.
3. Appellants also argue the Second Litigation is not barred by
issue preclusion. Because we conclude claim preclusion bars the
Second Litigation, we do not reach this argument.

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ANALYSIS
¶19 Res judicata is a judicially created doctrine that serves to
prevent parties from relitigating in a subsequent action issues
and claims that have already been decided on the merits. The
doctrine comprises two branches, claim preclusion and issue
preclusion. Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 10 n.4, 284
P.3d 622; see also Fundamentalist Church of Jesus Christ of Latter-
Day Saints v. Horne, 2012 UT 66, ¶ 12, 289 P.3d 502. At issue here
is whether Appellants’ claims in the Second Litigation were
properly barred by the claim preclusion branch of res judicata.
¶20 In determining whether claim preclusion applies, our
supreme court has adopted a three-part test:
First, both cases must involve the same parties or
their privies. Second, the claim that is alleged to be
barred must have been presented in the first suit or
be one that could and should have been raised in
the first action. Third, the first suit must have
resulted in a final judgment on the merits.
Gillmor, 2012 UT 38, ¶ 10 (quotation simplified). “If these three
requirements are met, the result in the prior action constitutes
the full relief available to the parties on the same claim or cause
of action.” American Estate Mgmt. Corp. v. International Inv. & Dev.
Corp., 1999 UT App 232, ¶ 6, 986 P.2d 765 (quotation simplified).
¶21 Here, Appellants concede the first and third prongs have
been met; they contest only the district court’s determination
pertaining to the second prong, “that the Second Claims actually
were, or could have been, brought in the First Litigation.”
¶22 Appellants argue the district court erred in determining
the claims raised in the Second Litigation were brought, or could
have been brought, in the First Litigation. They posit the claims
raised in the Second Litigation were based on three sets of facts

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of which they were unaware until after the First Litigation was
resolved: (1) the specific terms of the 2013 Transaction,
(2) Grant’s use of trust assets to pay property taxes on Duplex 2,
and (3) the January 2019 Letter in which Grant provided an
accounting of trust assets that omitted reference to Duplex 2 and
any debt associated with the 2013 Transaction. Appellants argue
that the First Litigation focused on the validity of the 2010 Trust
and the 2012 Amendment based on undue influence from Grant.
In contrast, Appellants claim that the Second Litigation focused
on the 2013 Transaction and whether Wayne possessed the
capacity to sell trust property and whether Grant’s distribution
of trust assets violated his fiduciary duty to the Beneficiaries.
¶23 When evaluating whether a claim has been brought
before for purposes of res judicata, our supreme court has
adopted a “transactional test.” Gillmor, 2012 UT 38, ¶ 13. “Under
this formulation, rather than resting on the specific legal theory
invoked, claim preclusion generally is thought to turn on the
essential similarity of the underlying events giving rise to the
various legal claims.” Id. (quotation simplified). “Claims or
causes of action are the same as those brought or that could have
been brought in the first action if they arise from the same
operative facts, or in other words from the same transaction.”
Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 30, 221 P.3d 194.
¶24 Here, the district court correctly found the claims in the
Second Litigation were “identical to” and relied on the “same
transactions” alleged in the First Litigation. Both the First and
Second Litigations “involved the validity of the [2010] Trust
Agreement, transfers related to the [2010] Trust Agreement, and
Grant Ingledew’s sole discretion as the Trustee to carry out the
transfers and make payments—including transfers to himself
and payments made on his behalf.” The First Litigation “also
raised the validity of the transfer of [Duplex 2] and the payment
of property and other taxes by the [2010] Trust.”

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¶25 Moreover, the specific facts on which Appellants relied in
framing their claims in the Second Litigation were explicitly
raised in their motion to set aside the summary judgment in the
First Litigation. In urging the court to set aside the summary
judgment, Dale submitted declarations establishing the terms of
the 2013 Transaction that removed Duplex 2 from the 2010
Trust’s distributable assets. In essence, he argued that Grant
improperly influenced Wayne to effectively transfer a parcel
worth more than $400,000 to himself.
¶26 The district court in the First Litigation considered Dale’s
claims and the facts established by the declarations he had
submitted, but it concluded they “were not sufficient to create an
issue of fact that would have allowed [Dale] to survive the initial
motion for summary judgment.” Because those same operative
facts were the basis for the Appellants’ petition in the Second
Litigation, the court in the Second Litigation correctly concluded
Grant had established that the claims raised in the Second
Litigation had been presented in the First Litigation. Having
correctly determined that Grant had satisfied “all three elements
of claim preclusion,” the court properly dismissed the petition.
CONCLUSION
¶27 The district court properly concluded Appellants’ claims
in the Second Litigation were barred by the claim preclusion
branch of res judicata. We therefore affirm.