In re Estate of Deeter

2020 UT App 65

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ESTATE OF RONALD CLIFTON DEETER

EMILY DEETER,
Appellant,
v.
ROBERT BARRY DEETER,
Appellee.

Opinion
No. 20190179-CA
Filed April 23, 2020

Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 180900536

Brett W. Hastings, Attorney for Appellant
Joseph A. Skinner, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE KATE APPLEBY concurred. JUDGE DAVID N.
MORTENSEN concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 Emily Deeter and the Estate of Ronald Clifton Deeter
(collectively, Emily) appeal the district court’s grant of summary
judgment in favor of Robert Barry Deeter (Barry). 1 We affirm.

1. As is our practice in cases where both parties share a last
name, we refer to the parties by their first names with no
disrespect intended by the apparent informality.
In re Estate of Deeter

BACKGROUND

¶2 In 1999, Ronald Deeter (Ron) opened several retirement
accounts with TIAA/CREF through his employment at Weber
State University. At the same time, Ron executed a designation
of beneficiary for these retirement accounts (the 1999 Beneficiary
Designation) naming his then-wife, Christy, as the primary
beneficiary and his brother, Barry, as the contingent beneficiary.

¶3 Ron divorced Christy in 2004 and married Emily in 2005.
Ron never changed the beneficiaries on his retirement accounts,
though Christy was removed by operation of law following their
divorce. In 2015, Ron opened new accounts with Fidelity
Investments. Ron named Emily as the primary beneficiary and
Barry as the contingent beneficiary of the Fidelity accounts. Ron
told Emily that she was to be the sole beneficiary of his
retirement accounts. However, he never changed the 1999
Beneficiary Designation. Ron passed away on June 3, 2016, at
which time approximately $299,000 remained in his TIAA/CREF
accounts.

¶4 Pursuant to the 1999 Beneficiary Designation, TIAA/CREF
distributed all the funds in the TIAA/CREF accounts to Barry.
Emily asked Barry to give her the funds because Ron had
intended for her to have them. Barry refused, and Emily sued
him. Emily raised claims based on testamentary intent and
unjust enrichment, requesting that the district court order Barry
to remit the funds to her.

¶5 Barry moved for summary judgment on both claims. He
asserted that testamentary intent is irrelevant because the
retirement accounts are administered based on a contract and
are therefore nontestamentary in nature. He further argued that
Emily could not claim unjust enrichment, because she did not
confer a benefit on him and because a contract governed the
distribution of the funds.

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¶6 Emily opposed Barry’s motion, asserting that genuine
issues of material fact precluded summary judgment and that
summary judgment was premature because discovery was still
ongoing. She did not file a rule 56(d) affidavit requesting
additional time for discovery. A week before the hearing on the
summary judgment motion, Emily moved the court for leave to
amend her complaint to add TIAA/CREF as a defendant and to
allege additional facts and causes of action.

¶7 The district court held a hearing on Barry’s summary
judgment motion and took the matter under advisement. The
court did not address Emily’s motion to amend other than to
acknowledge that it had been filed but was not ripe for
consideration, as Barry had not yet had the opportunity to
respond.

¶8 Following the summary judgment hearing, the parties
completed briefing on the motion to amend, but Emily never
submitted the motion to the court for decision. Subsequently, the
district court issued an order granting Barry’s summary
judgment motion. The order did not address Emily’s motion to
amend.

¶9 In ruling on the summary judgment motion, the
court determined that Ron’s retirement accounts were
nontestamentary. Therefore, it concluded that “testamentary
intent does not apply and is insufficient to modify the contract”
between TIAA/CREF and Ron. The court determined “that there
are no genuine issues of material fact concerning the validity of
the beneficiary designation and [Barry] is entitled to judgment as
a matter of law.” With respect to Emily’s assertion that more
discovery was needed, the court determined that Emily “failed
to meet the requirements of 56(d) by not providing an affidavit
or declaration specifying the need for discovery” and that, in any
event, the likelihood of finding anything to defeat summary
judgment through further discovery was speculative. Based on

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these conclusions, the court granted Barry’s motion for summary
judgment. Emily now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Emily first asserts that the district court entered summary
judgment prematurely and should have given her additional
time for discovery before considering the motion. We review the
denial of a request for further discovery for abuse of discretion.
See Energy Mgmt. Services, LLC v. Shaw, 2005 UT App 90, ¶ 8, 110
P.3d 158.

¶11 She further challenges the court’s grant of summary
judgment to Barry. “We review a summary judgment for
correctness, giving no deference to the district court’s decision.”
Kuchcinski v. Box Elder County, 2019 UT 21, ¶ 11, 450 P.3d 1056
(quotation simplified). 2

2. Emily also asserts that the district court should have granted
her motion for leave to amend her complaint. However, this
issue is unpreserved. Emily never submitted her motion to
amend for a decision by the court. See Utah R. Civ. P. 7(g) (“[I]f
no party files a request, the motion will not be submitted for
decision.”); see also Atlantic Credit & Fin., Inc. v. Jensen, 2011 UT
App 12, ¶ 2 & n.1, 246 P.3d 1213 (per curiam) (concluding that
where a defendant did not file a notice to submit her motion to
dismiss before the entry of judgment, the motion was never
properly before the district court for decision and was not
preserved for appeal). She suggests that she did not do so
because she was under the impression, from a telephone
conference with the court, that the court intended to rule on the
motion at the same time it issued its summary judgment ruling.
However, even accepting that this is true, and assuming that it
(continued…)

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In re Estate of Deeter

ANALYSIS

I. Completion of Discovery

¶12 Emily first argues that the district court should have
permitted her to complete discovery before considering the
motion for summary judgment. When a summary judgment
motion has been filed, rule 56(d) of the Utah Rules of Civil
Procedure permits the nonmoving party to request additional
time “to obtain affidavits or declarations or to take discovery”
where “it cannot present facts essential to justify its opposition.”
Utah R. Civ. P. 56(d). To do so, the nonmoving party is required
to show, “by affidavit or declaration,” the “specified reasons” it
cannot present such facts. Id. Moreover, “the party opposing
summary judgment must ‘explain how the continuance will aid
her opposition to summary judgment.’” Heslop v. Bear River
Mutual Ins. Co., 2017 UT 5, ¶ 54, 390 P.3d 314 (quotation
simplified) (quoting Callioux v. Progressive Ins. Co., 745 P.2d 838,
841 (Utah Ct. App. 1987)). That is, the opposing party must
explain how additional discovery is necessary to provide the
court with information that will defeat summary judgment,
thereby confirming that the party is not simply undertaking a
discovery fishing expedition. Id.

(…continued)
could excuse her failure to file a notice to submit, Emily never
filed any post-judgment motion alerting the court to its failure to
rule on her motion to amend. See Seamons v. Wiser, 2020 UT App
33, ¶ 14 (declining to consider a challenge to the district court’s
failure to rule on a motion where the movant never alerted the
district court to the oversight). Because the district court “was
not afforded an opportunity to correct the alleged error,” this
issue is not preserved. See id. (quotation simplified).

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¶13 Emily did not file a rule 56(d) affidavit or declaration
explaining why she was unable to support her opposition to
summary judgment with the information she already possessed
or how discovery of additional information would allow her to
defeat Barry’s motion. Rather, she simply argued in her
opposition to Barry’s motion that summary judgment was
premature because discovery had not yet concluded. Because
Emily’s discovery challenge did not comply with the
requirements of rule 56(d), the district court did not abuse its
discretion in disregarding it.

II. Summary Judgment

¶14 Emily next asserts that the district court erred in granting
Barry’s summary judgment motion because there were genuine
issues of material fact that precluded summary judgment. The
two causes of action asserted in Emily’s complaint were
testamentary intent and unjust enrichment. Emily asserted that
there were disputes of fact regarding the enforceability of the
1999 Beneficiary Designation, Ron’s intentions, and whether Ron
revoked the 1999 Beneficiary Designation. However, none of
these facts are relevant to either of the two causes of action Emily
raised in her complaint. Thus, even accepting her assertion that
disputes of fact existed, the district court did not err in
concluding that these disputes were not material to the causes of
action before it.

¶15 The Utah Code provides that retirement contracts such as
the one at issue are “nontestamentary.” Utah Code Ann. § 75-6-
201 (Michie 1993). The concept of testamentary intent pertains to
testamentary writings such as wills and codicils. See id. § 75-2-
503 (LexisNexis Supp. 2019) (explaining that “clear and
convincing evidence” of testamentary intent may permit a court
to enforce a testamentary writing that was not properly
executed); id. § 75-2-513 (explaining the requirements for a
writing concerning disposition of personal property to serve “as

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In re Estate of Deeter

evidence of the intended disposition”). Funds governed by
nontestamentary writings, such as contracts for the disposition
of retirement funds, cannot be devised by will, and therefore the
nontestamentary writings cannot be altered by other
testamentary writings. See Uckerman v. Lincoln Nat’l Life Ins. Co.,
588 P.2d 142, 144 (Utah 1978). The beneficiary designation was
governed by the contract Ron entered into with TIAA/CREF, and
thus Ron’s testamentary intent could have no impact on the
distribution of the funds.

¶16 Even if the 1999 Beneficiary Designation were
unenforceable or had been revoked, Ron’s testamentary intent
would not govern the distribution of the funds. Rather, the terms
of the contracts would still govern the funds’ distribution. Emily
did not raise any cause of action regarding the validity or
enforceability of the contracts. 3 Thus, any disputes of fact
regarding the enforceability of the contracts were not material to
the testamentary intent issue. 4

3. Emily attempted to do so later by moving to amend her
complaint. However, the district court never ruled on that
motion; therefore, this challenge is not properly before us. See
supra note 2.

4. Emily attempts to place the burden on Barry to prove that he
was entitled to the funds. For example, she states that “[t]o
determine the propriety of [Barry’s] asserted right to Ron’s
[retirement funds], not only must [Barry’s motion for summary
judgment] establish that right through the plain language of the
alleged contracts, [Barry] must establish that the alleged
contracts remained valid and enforceable at the time of Ron’s
death.” This is a misstatement of the burdens of proof applicable
in summary judgment motions. “While the moving party bears
the burden of proof on its summary judgment motion, viz. that
(continued…)

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In re Estate of Deeter

¶17 As to Emily’s unjust enrichment claim, she has not raised
any challenge to either the adequacy or the substance of the
district court’s ruling on appeal, 5 and has not explained how the
alleged disputes of fact were material to an unjust enrichment
claim. Thus, we do not further consider the propriety of the
court’s summary judgment ruling on that cause of action.

(…continued)
there are no genuine issues of material fact and that the party is
entitled to judgment as a matter of law, in opposing a motion for
summary judgment, the plaintiff still has the ultimate burden of
proving all the elements of his or her cause of action.” Gerbich v.
Numed Inc., 1999 UT 37, ¶ 12, 977 P.2d 1205 (quotation
simplified); see also Salo v. Tyler, 2018 UT 7, ¶ 26, 417 P.3d 581
(“[A] movant who seeks summary judgment on a claim on
which the nonmoving party bears the burden of persuasion may
show that there is no genuine issue of material fact without
producing its own evidence.”). Barry already received the funds
by operation of Ron’s contract with TIAA/CREF. It is Emily who
challenged the allocation of those funds based on testamentary
intent and unjust enrichment. It is Emily’s burden, as plaintiff, to
establish the prima facie elements of her claims against Barry. To
obtain summary judgment, Barry did not need to prove that he
was entitled to the funds or that the contracts were enforceable;
rather, he was required to show only that there was no legal or
factual basis for Emily to establish the elements of her causes of
action.

5. Barry asserted below that Emily could not establish her unjust
enrichment claim, because she did not confer a benefit on Barry.
See Concrete Products Co., a Div. of Gibbons & Reed v. Salt Lake
County, 734 P.2d 910, 911 (Utah 1987). The district court did not
make detailed conclusions of law on this issue, but it granted
Barry’s motion with respect to both of Emily’s causes of action.

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CONCLUSION

¶18 Because Emily did not comply with the requirements of
rule 56(d) to demonstrate why she needed more time to obtain
information to oppose Barry’s summary judgment motion, the
district court did not err in declining to give her additional time
for discovery before ruling on that motion. Further, we will not
disturb the district court’s grant of summary judgment to Barry,
because testamentary intent could not modify the retirement
contracts and Emily has not challenged the court’s ruling with
respect to her unjust enrichment claim. Accordingly, we affirm.

MORTENSEN, Judge (concurring):

¶19 I fully concur in the majority opinion, but I write
separately because this case arises out of a frequent circumstance
associated with motions for summary judgment—the misuse of
rule 56(d) of the Utah Rules of Civil Procedure. Appellant
attempted to move the district court, pursuant to rule 56(d), to
deny its disposition of a pending motion for summary judgment
by asking the court to allow more time for discovery to be
concluded. Appellee notes that this motion was not made
separately as required by rule 7(n). But a bigger barrier stands in
the way of Appellant’s motion for additional discovery pursuant
to rule 56(d): no such motion exists under that rule.

¶20 The Utah Supreme Court has identified motions to
reconsider as the cheatgrass 6 of litigation. See Gillett v. Price, 2006

6. Much reviled by farmers, ranchers, and other land cultivators,
cheatgrass is an invasive species of grass that invades and
contaminates hay, grain, straw, and farm machinery. The grass
literally sucks life-giving moisture from the ground, killing more
productive plant life around it. See generally Cheatgrass, Utah
(continued…)

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UT 24, ¶ 9, 135 P.3d 861 (“[M]otions to reconsider ‘have
proliferated in civil actions to the extent that they have become
the cheatgrass of the litigation landscape . . . .’” (quoting Shipman
v. Evans, 2004 UT 44, ¶ 18 n.5, 100 P.3d 1151)). Certainly, rule
56(d) “motions” have become the bindweed 7 of motion practice
connected with motions for summary judgment. A “rule 56(d)
motion” is a misnomer; no such thing exists in rule 56. 8 Both the
current version of 56(d) and the old version—rule 56(f)—indicate
that if a party believes it cannot respond to a motion because
further discovery is required, that party may file an affidavit or
declaration, not a motion, which must “for specific reasons” (new
56(d)) or “for reasons stated” (old 56(f)) show that the needed

(…continued)
State Univ. Extension, https://extension.usu.edu/rangeplants/gra
sses-and-grasslikes/cheatgrass [https://perma.cc/CE4B-TUQ].

7. Bindweed, often mistaken for morning glory, is nearly
impossible to eradicate because its roots travel deep, and it
binds, or chokes, the life out of plants near it. See generally Field
Bindweed, Utah State Univ. Extension, https://extension.usu.edu/r
angeplants/forbsherbaceous/field-bindweed [https://perma.cc/6
H2K-C8GY].

8. I recognize that the appellate courts of this state have
discussed and passively approved of “56(d) motions.” We make
mistakes too. The plain language of the rule provides for no such
motion. These motions constitute bindweed because they
needlessly add to the cost of litigation, slow the consideration of
motions, and rarely, if ever, accomplish anything that the simple
affidavit actually referred to in the rules could not. Motions
beget oppositions, which beget replies, and often beget motions
to strike, obfuscating and choking out of perspective the real
issues presented by the motion for summary judgment.

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discovery goes to facts “essential to justify the party’s
opposition.” Utah R. Civ. P. 56(d). “Essential to justify” means
legally essential, or in other words, legal analysis which shows
that the facts to be discovered would matter in the context of the
pending motion for summary judgment. The amendment to rule
56 adding the word “specific” seems to indicate that a general
assertion for needed discovery would never suffice.

¶21 So, in my view, here’s how the rule-drafters actually
intended things to go: if the party cannot sufficiently oppose a
motion for summary judgment, because that party needs to do
further discovery, that party is attempting to locate other
documents or evidence, or that party needs further time to
obtain an affidavit, in lieu of any of that, that party files a rule
56(d) affidavit. This affidavit explains what specifically needs to
be obtained. Then, in his or her opposing memorandum, the
party explains how and why that evidence matters in the context
of the pending motion for summary judgment. Finally, in his or
her reply memorandum, the moving party explains—if it can—
why whatever is said in the rule 56(d) affidavit/opposing
memorandum is wrong or misses the mark.

¶22 An analogous rule: while prior practice often included
motions to strike in the context of summary judgment when a
party allegedly relied upon inadmissible evidence, the current
rule, wisely, bans such practice. See Utah R. Civ. P. 7(n) (“A
party who objects to evidence in another party’s motion or
memorandum may not move to strike that evidence.”); id. R.
56(c)(2) (“A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.”); see also id. R. 7(d)(1)(C) (“The
memorandum must include under appropriate headings . . .
objections to evidence in the motion, citing authority for the
objection.”); id. R. 7(e)(1)(C) (“The memorandum must include
under appropriate headings . . . objections to evidence in the

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memorandum opposing the motion, citing authority for the
objection . . . .”).

¶23 Just as motions to strike inadmissible evidence in this
context do not exist and should not occur, “rule 56(d) motions”
do not exist and should not occur either. “That’s the way it’s
always been done” is no excuse. “Rule 56(d) motions” are not
rooted in the rules and should not be filed.

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