In re Evan O. Koller Revocable Living Trust

2018 UT App 26
THE UTAH COURT OF APPEALS
I N THE MATTER OF THE EVAN O. K OLLER R EVOCABLE LIVING TRUST
M ARK K OLLER ,
Appellee,
v.
LUA NN K. S HAFFER AND K ATHRYN PROUNIS,
Appellants.
Opinion
No. 20160215-CA
Filed February 15, 2018
First District Court, Logan Department
The Honorable Brandon J. Maynard
No. 143100098
M. Robert Smith and Christopher L. Daines,
Attorneys for Appellant LuAnn K. Shaffer
Matthew N. Evans and Matthew M. Cannon,
Attorneys for Appellant Kathryn Prounis
James K. Tracy, Robert S. Tippett, James C.
Dunkelberger, and Trevor M. Crowley, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGE K ATE A. TOOMEY concurred. JUDGE GREGORY K. O RME
concurred in Sections II and III, and concurred in the result,
without opinion, in Section I.
MORTENSEN, Judge:
¶1 	Written 	instruments 	speak 	for 	themselves, 	and 	only
specific exceptions to that general rule allow a court to look
outside a document when interpreting it. The district court ruled
that LuAnn K. Shaffer expressly resigned as trustee in writing.

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Because 	the 	district 	court 	properly 	interpreted 	the 	relevant
provisions of a trust instrument and the associated resignation,
we affirm its grant of summary judgment in favor of Mark
Koller.1
¶2 	Mark2 brought this suit seeking a declaration that he was
the rightful trustee of the Evan O. Koller Revocable Living Trust
(the 	Trust). 	Evan 	O. 	Koller 	established 	the 	Trust 	in 	2006,
designating himself as both settlor and trustee of the Trust. Evan
named LuAnn successor trustee, and the appointment was to be
operative 	upon 	his “death, 	resignation 	or 	incapacity.” 	In 	a
proceeding 	not 	relevant 	to 	this 	appeal, 	Evan 	was 	declared
incapacitated in 2006. Evan’s children,3 including Mark and
LuAnn, stipulated to the appointment of a professional trustee in
lieu of LuAnn accepting trusteeship. When the professional
trustee resigned in 2009, LuAnn became trustee.
¶3 	Around 	this 	same 	time, 	another 	of 	Evan’s 	children,
Kathryn Prounis, was serving as co-conservator of Evan’s estate
(the Estate) with her brother, Dan Koller. Kathryn informed
LuAnn that the Estate was “out of money” and that “the co-
conservators were trying to get a loan” from Lewiston State
Bank 	(the 	Bank). 	The 	Bank 	insisted 	that 	the 	court 	appoint
Kathryn and Dan as trustees of the Trust before it would
consider the requested loan.
1. A separate appeal involving many of these same parties has
been resolved by the court in a separate opinion issued today.
See In re Koller, 2018 UT App 27.
2. Because many of the parties involved in this case share a last
name, we refer to individuals by their first names throughout
this 	opinion. 	We 	intend 	no 	disrespect 	by 	the 	apparent
informality.
3. All parties on appeal are Evan’s natural children.

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¶4 	Kathryn was under the impression that she and Dan were
already trustees by way of a prior stipulation among Evan’s
children. She nevertheless requested that LuAnn formally resign
as 	trustee. 	On 	May 	29, 	2009, 	LuAnn 	signed 	a 	notarized
document (the Resignation), stating, “I, LuAnn K. Shaffer, also
known as LuAnn K. Nelson, hereby resign as successor trustee
of [the Trust].” That same day, LuAnn delivered the Resignation
to an employee of the Bank.
¶5 	The Resignation contained no language making LuAnn’s
resignation conditional upon other events—such as the Estate
obtaining the requested loan—but LuAnn contends that her
intention in signing the Resignation was that it would be invalid
if 	the loan was not approved. The loan request as it was
originally framed—as a mortgage loan—was abandoned, but the
Bank issued the Estate a line of credit five days after LuAnn
signed the Resignation.
¶6 	Several years later, Evan died. Prior to his death, Evan
had signed an amendment to the trust instrument, specifying
that “[u]pon the death, resignation or incapacity of LuAnn . . . as
Trustee, the successor Trustee shall be Mark.” After Evan’s
death, Mark received a copy of the Resignation from Dan.
Believing that LuAnn had resigned as trustee, Mark sought
appointment as successor trustee and initiated the present case
in the district court.
¶7 	LuAnn and Kathryn opposed Mark’s efforts, arguing that
LuAnn “never intended to resign nor has she ever resigned as
trustee of” the Trust. However, the district court ultimately
concluded that the Resignation spoke for itself and granted
summary judgment in Mark’s favor. The court appointed Mark
as “the sole trustee” and concluded that he was authorized “to
marshal the assets of [the Trust] . . . and all trusts created
thereunder, and to administer such trust(s) according to its
terms.”

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¶8 	LuAnn appeals,4 arguing that the district court erred in
granting summary judgment. The errors she alleges all center on
the question of whether the district court properly concluded
that she had resigned as trustee; the basis of its decision to grant
summary judgment to Mark. “We review the trial court’s [grant
of] summary judgment for correctness, considering only whether
the trial court correctly applied the law and correctly concluded
that no disputed issues of material fact existed.” Hermansen v.
Tasulis, 2002 UT 52, ¶ 10, 48 P.3d 235.
¶9 	According to LuAnn, there are seven ways in which the
district 	court 	erred 	in 	its 	conclusion 	that 	she 	resigned 	as
successor 	trustee: 	(1) 	LuAnn 	never 	“legally 	resigned” 	as
successor trustee; (2) the Resignation was to be held in escrow
unless and until the Bank granted the mortgage loan, but the
“mortgage loan transaction . . . was abandoned and never
consummated,” leaving the Resignation “voided and destroyed
and 	[with] 	no 	legal 	effect”; 	(3) 	the 	Bank’s 	request 	for 	the
Resignation was improper; (4) LuAnn never intended to resign
unless the mortgage loan was granted; (5) she never delivered
the Resignation to any beneficiary of the Trust; (6) no one relied
upon the Resignation; and (7) “LuAnn at all relevant times acted
as Trustee of the Trust.” Mark counters that LuAnn “executed
the Resignation, which unequivocally demonstrates her intent to
resign as trustee of the Trust effective” on the date that the
Resignation was signed. LuAnn insists that the district court
should have considered extrinsic evidence before concluding
that the Resignation established such an intent.
4. Kathryn also appealed and filed the appellants’ brief in this
matter. 	LuAnn 	joined 	that 	brief. 	Because 	the 	case 	involves
whether LuAnn resigned as successor trustee, we use “LuAnn”
from this point forward to refer to arguments made by both
Kathryn and LuAnn.

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¶10 	In our view, the arguments raised by the parties fit within
three 	main 	categories: 	parol 	evidence, 	delivery, 	and 	factual
disputes. We therefore discuss each in turn.
I. Parol Evidence
¶11 	The district court did not err by refusing to consider parol
evidence of LuAnn’s intent. We typically see the parol evidence
rule in conjunction with contracts and the interpretation of their
terms, but the Resignation is not a contract.5 We make this
clarification because the parties rely almost exclusively on case
law interpreting contracts and applying the parol evidence rule
to those contracts, repeatedly addressing the issue of integration.
See e.g., Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 11, 182
P.3d 326.
¶12 	But because this is not a contract case, integration is
immaterial.6 Here, we employ the parol evidence rule as it
applies to written instruments generally; that is, parol evidence
is admissible only if the instrument contains an ambiguity. See,
e.g., Meridian Ditch Co. v. Koosharem Irrigation Co., 660 P.2d 217,
221 (Utah 1983) (refusing to consider extrinsic evidence when
there was no “ambiguity of [a] particular provision” of a decree
and the “language [was] clear and [could] therefore be construed
upon its face”); Rowley v. Marrcrest Homeowners’ Ass’n, 656 P.2d
414, 417 (Utah 1982) (interpreting a plat and concluding that
5. The distinction 	becomes particularly 	important when we
address LuAnn’s argument that the Resignation was void for
lack of consideration. See infra ¶¶ 19–21.
6. Even if integration were a relevant concept here, the parol
evidence rule would not apply any differently. See Tangren
Family Trust v. Tangren, 2008 UT 20, ¶ 11, 182 P.3d 326 (stating
that even “if a contract is integrated, parol evidence is admissible
. . . to clarify ambiguous terms.”).

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because “[p]lats are writings[,] . . . parol evidence is inadmissible
to explain or modify an unambiguous plat”); see also Peterson v.
Holloway, 334 P.2d 559, 560–61 (Utah 1959) (defining “the parol
evidence rule” as being “against permitting oral testimony to
vary or contradict written instruments”). 7
¶13 	The Trust directs that a trustee may “resign as Trustee
after 	written 	notice 	of 	such 	resignation 	is delivered 	to 	the
Grantor.” Thus, because the Resignation is a written instrument,
it is subject to the traditional operation of the parol evidence
rule, 	and 	the 	district 	court 	was 	correct 	in 	excluding 	such
evidence so long as the Resignation was unambiguous.
¶14 	The parol evidence rule requires courts to first look at the
four corners of a written instrument to determine the parties’
intent, rather than considering extrinsic evidence.8 See Panos v.
7. It is also well settled that “[w]e employ familiar principles of
contract interpretation when construing trust instruments.” Dahl
v. Dahl, 2015 UT 79, ¶ 29. Thus, the parol evidence rule applies to
the interpretation of trust documents. Makoff v. Makoff, 528 P.2d
797, 798 (Utah 1974) (discussing parol evidence as it relates “to
the construction of trust instruments”). But this case does not
involve a trust instrument as we normally think of that term in
that it did not create the trust. See id. (referring to a trust
instrument as one executed by a settlor in “the creation of the
trust”).
8. The Nebraska Supreme Court has, on at least one occasion,
addressed a similar case. In In re Trust Created by Cease, 677
N.W.2d 495 (Neb. 2004), a trust settlor executed a “Termination
of Trust,” which declared that the settlor “hereby resigns from
[his] position as TRUSTEE.” Id. at 498. The lower court admitted
parol 	evidence, 	including 	testimony 	regarding 	the 	settlor’s
“intentions at the time the document was executed.” Id. at 500.
The 	Nebraska 	Supreme 	Court 	concluded 	that 	because 	the
(continued…)

In re Evan O. Koller Revocable Living Trust
20160215-CA 	7 	2018 UT App 26
Olsen & Assocs. Constr., Inc., 2005 UT App 446, ¶ 15 n.3, 123 P.3d
816. 	But 	“[i]t 	is generally 	recognized 	that 	where 	a 	written
instrument is ambiguous, such evidence is admissible to show
the intent of the parties.” Tanner v. Utah Poultry & Farmers Co-op.,
359 P.2d 18, 20 (Utah 1961). LuAnn argues that the Resignation
was ambiguous and, as such, the district court should have
considered parol evidence to determine her intent in signing it.
She specifically argues that “there is a latent ambiguity in the
[Resignation] that requires analysis of extrinsic evidence under
Utah law.”
¶15 	LuAnn 	misapprehends 	the 	operation 	of 	the 	parol
evidence rule in determining whether a document contains a
latent ambiguity. “Unlike facial ambiguities, a latent ambiguity
arises from a collateral matter when the document’s terms are
applied 	or 	executed, 	not 	from 	any 	facial 	deficiency 	in 	the
[document’s] terms.” Mind & Motion Utah Invs., LLC v. Celtic
Bank Corp., 2016 UT 6, ¶ 40, 367 P.3d 994 (citation and internal
quotation marks omitted). LuAnn rightly claims that Utah law
“allow[s] courts to consider any relevant evidence to determine
whether a latent ambiguity exists.” (Quoting Watkins v. Henry
Day Ford, 2013 UT 49, ¶ 28, 304 P.3d 841 (emphasis omitted).) But
our supreme court recently took “the opportunity to clarify the
conditions 	under 	which 	latent 	ambiguities 	arise 	and 	the
evidence relevant to establishing them.” Mind & Motion, 2016 UT
6, ¶ 40.
¶16 	In Mind & Motion, our supreme court explained “that
instances where extrinsic evidence is allowed to uncover a latent
ambiguity will prove to be the exception and not the rule.” Id.
(citation 	and 	internal 	quotation 	marks 	omitted). 	It 	further
(…continued)
document was unambiguous, “to the extent that parol evidence
concerning [the document] was admitted, it was error.” Id. at 501.

In re Evan O. Koller Revocable Living Trust
20160215-CA 	8 	2018 UT App 26
announced, “Parties may not simply proffer subjective affidavits
setting forth their favored interpretation of otherwise clear terms
to create an ambiguity.” Id. “Rather,” the court clarified, “the
extrinsic 	evidence 	must 	show 	that 	due 	to 	some 	collateral
matter—trade usage, course of dealing, or some other linguistic
particularity that arises in the context of extrinsic collateral
matters—the [document’s] terms mislabel a person or thing, or
otherwise fail to reflect the parties’ intentions.” Id.
¶17 	LuAnn does not contend that the parol evidence she
wanted the district court to consider spoke to “some collateral
matter” like “trade usage, course of dealing, or some other
linguistic particularity.” Cf. id. Instead, she presented the very
sort of evidence the court in Mind & Motion warned against—
LuAnn’s deposition testimony and Kathryn’s affidavit. In other
words, it was subjective evidence setting forth LuAnn’s “favored
interpretation of otherwise clear terms.” See id. This is not the
sort of evidence that is admissible to show the existence of a
latent ambiguity.
¶18 	To 	interpret 	the 	parol 	evidence 	rule 	regarding 	latent
ambiguities in the way LuAnn urges would result in a complete
undoing of the parol evidence rule. Any written document
would be subject to parol evidence simply where a party, for any
reason, 	alleged 	that 	the 	party’s 	intent 	differed 	from 	what
appeared on the face of the document. The district court was
correct in refusing to interpret the rule this way.
¶19 	LuAnn also argues—separate from her contentions about
latent 	ambiguities—that 	the 	district 	court 	should 	have
considered 	the 	loan 	documents 	along 	with 	the 	Resignation
because they were “executed substantially contemporaneously
and are clearly interrelated.” (Quoting Shields v. Harris, 934 P.2d
653, 657 (Utah Ct. App. 1997).) But this argument begins with
LuAnn’s assertion that “[t]he first step in the application of the
parol evidence rule is for the court to determine whether the

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20160215-CA 	9 	2018 UT App 26
agreement is integrated.” And this assertion is inapposite, as
integration affects application of the parol evidence rule only
when dealing with the interpretation of contracts—and this is
not a contract case. See supra ¶ 11 & note 5. We thus have no
occasion to consider this particular issue further.
¶20 	Finally, LuAnn argues that the district court should have
considered extrinsic evidence in support of her contention that
the Resignation was not supported by consideration. (Citing
Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 15, 182 P.3d 326
(“[W]e will nevertheless allow extrinsic evidence in support of
an argument that the contract is not, in fact, valid for certain
reasons that we have specified.”).) In her view, because she
signed the Resignation “only in expectation of and in connection
with the receipt of a loan” and that “specific loan, however, was
never provided,” the Resignation “was not effective and lacked
consideration.” But whether consideration existed is immaterial
unless we are considering whether a contract exists. See Copper
State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88,
91 (Utah 1988) (“If there is lack of consideration, there is no
contract.”).
¶21 	As we have now repeatedly explained, this is not a
contract case. See supra ¶ 11 & note 5. Contract law is helpful
only so far as it provides analogy to the situation before us.
Here, however, the exception to the parol evidence rule that
LuAnn relies upon is one specifically carved out for evaluating
whether a contract exists.9 See Tangren, 2008 UT 20, ¶ 11. In other
9. Even if we extended contract law to this specific circumstance,
LuAnn’s claim would fail. She argues that because the mortgage
loan was never consummated, there was no consideration for the
Resignation. “There is a distinction between lack of consideration
and failure of consideration. Where consideration is lacking,
there can be no contract. Where consideration fails, there was a
contract when the agreement was made, but because of some
(continued…)

In re Evan O. Koller Revocable Living Trust
20160215-CA 	10 	2018 UT App 26
words, the district court was only required to consider parol
evidence relating to lack of consideration if the claim before it
was based on a contract. Because the district court was not faced
with a contract claim, it was not required to consider parol
evidence regarding consideration. Thus, the district court did
not err in this regard.
¶22 	The district court was correct in refusing to consider parol
evidence 	related 	to 	LuAnn’s 	claim 	that 	the 	Resignation
contained a latent ambiguity. And because the Resignation is not
a contract, there is no requirement that it be supported by
consideration; thus, it was not error for the district court to also
refuse 	to 	consider 	parol 	evidence 	on 	the 	question 	of
consideration. 	Accordingly, 	the 	district 	court’s 	ruling 	in 	its
summary judgment order that the “parol evidence rule bar[red]
extrinsic evidence of intent” was not erroneous.
II. Delivery
¶23 	The district court properly concluded that the Resignation
was delivered in accordance with the terms of the Trust. The
Trust required that a trustee’s resignation be in writing and
delivered 	to 	the 	Grantor. 	There 	is 	no 	dispute 	that 	the
Resignation 	is 	in 	writing. 	Instead, 	the 	dispute 	comes 	over
whether there was “effective delivery of [the Resignation] as
required by the trust.” There was no delivery, LuAnn argues,
because she never intended to “deliver or otherwise provide
(…continued)
supervening cause, the promised performance fails.” General Ins.
Co. of Am. v. Carnicero Dynasty Corp., 545 P.2d 502, 504 (Utah
1976). Even if the Resignation were conditioned on the estate
obtaining the loan, the question would be whether there was a
failure of consideration, not the lack of consideration. And in this
case, consideration appears to have been given in the form of a
line of credit.

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notice of” the Resignation to Kathryn and Dan, who acted as
Evan’s representatives after he was declared incapacitated.
¶24 	LuAnn did not deliver the Resignation directly to Kathryn
or Dan. Instead, after she executed it, she left it with Evan’s
accountant “to deliver it to the title company.” The accountant
emailed the Resignation to Kathryn and Dan “to keep [them]
informed of the documents that were tendered to the title
company in connection with the proposed loan transaction.”
LuAnn argues that the accountant was not her agent, nor was
the accountant acting according to any instruction from LuAnn
when she emailed Kathryn and Dan. Mark argues that this is of
no consequence.
¶25 	As 	Mark 	points 	out, 	the 	Trust 	“contains 	no 	formal
requirement for delivery of a trustee’s resignation. The Trust
requires only that the resignation be ‘delivered to the Grantor.’”
Both Mark and LuAnn primarily focus on delivery of deeds
under Utah law. Their discussions of whether LuAnn intended
for the deed to be delivered, to whom she instructed it be
delivered, 	and 	whether 	that 	constitutes 	actual 	delivery
unnecessarily complicate the matter.
¶26 	Assuming the relevant trust provision required LuAnn to
be the person who delivered the Resignation to the Grantor,10
10. We are not entirely convinced that this is what the trust
provision required. The relevant trust provision states:
Any Trustee or Co-trustee of this Trust Agreement
may resign as Trustee after written notice of such
resignation is delivered to the Grantor, or, if the
Grantor is deceased, to all of the beneficiaries then
receiving 	income 	interests, 	and 	upon 	the
acceptance of the successor Trustee to act.
Mark 	and 	LuAnn 	disagree 	as 	to 	whether 	LuAnn’s
relinquishment 	of 	the 	Resignation 	to 	the 	accountant 	was
(continued…)

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LuAnn’s position on appeal that no such delivery occurred is
untenable. When LuAnn signed the Resignation, she did so at
the request of Dan and Kathryn, the co-conservators of the
Estate. They stood in the shoes of the Grantor. They requested
that LuAnn sign the Resignation, and she obliged. She then
relinquished control of the document to a third party so that Dan
and Kathryn’s efforts to secure a loan could move forward. As
part of that process, the third party delivered the Resignation to
Dan and Kathryn. More simply stated, there was a direct line of
delivery between LuAnn, the third party, and the individuals
standing in the place of the Grantor. Cf. Wilson v. Wilson, 89 P.
643, 646 (Utah 1907) (explaining that in the case of deeds, “[t]he
law is well settled that if a grantor delivers a deed to a third
person absolutely as his deed, without reservation and without
intending to reserve any control over the instrument,” there can
be 	valid 	delivery 	(citation 	and 	internal 	quotation 	marks
omitted)). Accordingly, we see no error in the district court’s
conclusion that the Resignation was properly delivered.
III. Factual Disputes
¶27 	None of the factual disputes LuAnn raises should have
precluded summary judgment. These disputes involve “whether
(…continued)
sufficient to prove that she intended delivery. But the Trust does
not explicitly require a resigning trustee to intend delivery.
Notably absent from the trust language is the specification of an
actor. Instead, the Trust uses passive voice—“is delivered.” We
think it possible that once a written resignation “is delivered to
the Grantor,” and the successor Trustee agrees to his role, the
resignation is operative. If the Trust instrument read, “after the
Trustee 	delivers 	written 	notice 	of 	such 	resignation 	to 	the
Grantor,” 	this 	question 	might 	more 	clearly 	turn 	on 	who
delivered the Resignation to Dan and Kathryn. But the Trust
instrument does not.

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LuAnn accepted and/or rejected the trusteeship” and concern
“Mark’s alleged acceptance of the trusteeship.” Even if LuAnn is
correct that there are contested facts on these points, they are
immaterial.
¶28 	First, LuAnn argues that because she had not yet accepted
the trusteeship, she could not have resigned as trustee. The
district court determined that this argument lacked merit; if she
had not yet accepted her appointment as trustee, the Resignation
was “an 	initial rejection of the trusteeship.” LuAnn argues
that this 	was 	an 	erroneous 	weighing 	of 	the 	evidence 	and
inappropriate on summary judgment. We conclude that, instead,
it was a proper application of the law.
¶29 	Utah Code section 75-7-701 specifies that an individual
“designated as trustee who has not yet accepted the trusteeship
may 	reject 	the 	trusteeship.” 	Utah 	Code 	Ann. 	§ 	75-7-701(2)
(LexisNexis Supp. 2017). The district court did not, as LuAnn
contends, engage in fact finding or weighing on this point; it did
not decide whether LuAnn had “yet accepted the trusteeship.”
See id. Instead, it determined that it mattered not whether the
trusteeship 	had 	been 	accepted. 	If 	it 	had, 	the 	Resignation
relinquished the role. If it had not, section 75-7-701(2) allows for
rejection 	of 	the 	role, 	which 	the 	Resignation 	would 	also
accomplish. Put in terms of summary judgment, any dispute
regarding whether LuAnn had accepted the trusteeship did not
affect “any material fact.” See Utah R. Civ. P. 56(a).
¶30 	Second, 	LuAnn 	argues 	that 	even 	if 	she 	rejected 	or
resigned from the trusteeship, “there are disputed issues of fact
regarding Mark’s alleged acceptance of the trusteeship.” She
cites the Restatement (Third) of Trusts for the proposition that it
“is a question of fact in each case whether the trustee has
manifested an intention to accept or to reject the trusteeship.”
Restatement (Third) of Trusts § 35 cmt. B (Am. Law Inst. 2003).
While 	LuAnn 	“is 	correct 	that 	whether 	or 	not” 	acceptance

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“occurred is a question of fact,” she “fails to cite any disputed
issues of fact that would have prevented the district court from
determining 	the 	question 	as 	a 	matter 	of 	law 	on 	summary
judgment.” See McLaughlin v. Schenk, 2009 UT 64, ¶ 33, 220 P.3d
146. 	Where 	LuAnn 	directs 	us 	to 	no 	facts 	in 	the 	record
demonstrating that Mark did not accept trusteeship, there is no
dispute regarding this fact. The district court was therefore
correct in concluding as a matter of law that Mark was “the sole
trustee.”
CONCLUSION
¶31 	The district court properly granted summary judgment in
Mark’s favor. LuAnn was not entitled to present parol evidence
regarding her intent in signing the Resignation. The Resignation
was 	delivered 	to 	the 	Grantor’s 	representatives, 	making 	it
effective. And any factual issues LuAnn raised in opposition to
summary judgment were immaterial.
¶32 	Affirmed.