In re J. Melvin and Glenna D. Bulloch Living Trust

2018 UT App 121

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE J. MELVIN AND GLENNA D. BULLOCH
LIVING TRUST

KIM MURIE AND BRENT MURIE,
Appellants,
v.
GLENNA D. BULLOCH,
Appellee.

Opinion
No. 20160782-CA
Filed June 21, 2018

Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 143500053

Carson M. Pearson, Daniel E. Witte, and Elliot P.
Smith, Attorneys for Appellants
J. David Westwood and Scott M. Burns, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE A. TOOMEY and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 In this case, we consider whether the district court, in the
context of deciding a motion for summary judgment, correctly
ruled that an amendment to the J. Melvin and Glenna D. Bulloch
Living Trust (the Trust) was void as a matter of law. We also
consider whether the court exceeded its discretion in entering
final judgment before resolving other issues relating to the
administration of the Trust. We affirm.
In re J. Melvin and Glenna D. Bulloch Living Trust

BACKGROUND

¶2 J. Melvin Bulloch and Glenna D. Bulloch 1 established the
Trust in May 1996. They were each designated as Grantors and
also as Trustees of the Trust. Among its provisions, and as
relevant here, the Trust provided, “So long as both Grantors are
living, they reserve the right to revoke, alter or amend this Trust
instrument in whole or in part by a written instrument signed,
acknowledged and delivered to the Trustees. Such election must
be made by both Grantors.”

¶3 In August 1998, Melvin appointed Glenna as his
attorney-in-fact through a written “General Power of Attorney”
(the Power of Attorney). The Power of Attorney defined the
scope of Glenna’s authority, stating that Glenna was appointed
to act for Melvin as follows:

In my name, place and stead, to do any act or
transaction which I would do myself, if I were
personally present, with respect to all matters to
the fullest extent that I as an individual am
permitted by law to perform by and through an
agent (including what I may do as Trustee of The J.
Melvin and Glenna D. Bulloch Living Trust . . . ).

The Power of Attorney then provided a non-exclusive listing of
powers delegated to Glenna as attorney-in-fact:

To conduct banking transactions; to receive,
endorse and cash any checks payable to me, from
whatever source, to deposit such funds in any bank
or invest such funds or expend such funds for my

1. Because J. Melvin Bulloch and Glenna Bulloch share the same
last name, we refer to them as Melvin and Glenna, with no
disrespect intended by the apparent informality.

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maintenance and support, whether directly or
indirectly, and to have control over any funds
deposited in my name, personally or in my name
as Trustee . . . and to have access to any safe
deposit box held in my name. To conduct real
estate transactions, including the power to sell, rent
or lease any rights I may own in real estate, and to
receive and receipt any and all rents, royalties, and
all payments now due or to become due to me as I
would be able to do myself (including what I may
do as Trustee . . .); to sign tax returns and receive
and cash tax refund checks; to make gifts in my
name and to take steps to perpetuate and carry out
my estate plan and financial plans; and to do any
and all other things necessary and proper in the
conduct of my personal, business, banking and
Trust affairs.

¶4 Many years later, on April 2, 2013, Glenna signed the
Second Amendment to the Trust (the Second Amendment). It
purported to amend the Trust by, among other things, altering
the property distribution such that two particular parcels of
property held in the Trust for the benefit of all the beneficiaries
would be conveyed to Kim Murie, the Bullochs’ daughter.
Glenna signed the Second Amendment in her individual
capacity and in her capacity as Melvin’s attorney-in-fact. Melvin
did not sign the Second Amendment. He died two days later.

¶5 In June 2014, Glenna filed a petition for declaratory
judgment, claiming that she “did not understand the Second
Amendment when she signed it” and requesting a court order
declaring it void “so as to resolve any disputes over her estate.”
She argued that the Second Amendment should be declared
void pursuant to Utah Code section 75-5-503(1), which
prohibited an attorney-in-fact from modifying an inter vivos
revocable trust unless such power was “expressly authorized in
the power of attorney.” Utah Code Ann. § 75-5-503(1)

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(LexisNexis Supp. 2014). 2 She claimed that the Second
Amendment was void on the basis that there was “no language
in the Power of Attorney that expressly authorizes the agent to
modify the Trust.”

¶6 In March 2016, Glenna moved for summary judgment in
which she repeated the section 75-5-503 statutory argument she
made in the petition. Relatedly, Glenna also contended that the
broad language in the Power of Attorney giving her authority
“to do any and all other things necessary and proper in the
conduct of [Melvin’s] . . . Trust affairs” could not be construed to
authorize her to amend the Trust. And she asserted that while
the language in the Power of Attorney referenced her authority
to act in Melvin’s stead as a Trustee, the Trust “makes it clear
that only the grantors of the Trust are allowed to amend the
Trust, not the trustees.”

¶7 Murie responded, arguing that Glenna had authority to
amend the trust on Melvin’s behalf through the Power of
Attorney. She argued that the “general power of attorney . . . has
no restrictions” on the power afforded Glenna and that its broad
language was sufficient to bestow her with amendment power.

¶8 On June 8, 2016, the district court issued a memorandum
decision granting Glenna’s summary judgment motion and
concluding that the Second Amendment was void as a matter of
law. Relying on Kline v. Utah Department of Health, 776 P.2d 57
(Utah Ct. App. 1989), the court noted that courts “must strictly

2. Utah Code section 75-5-503 was repealed and replaced
effective May 10, 2016, during the proceedings in this case. See
Utah Code Ann. § 75-5-503 (LexisNexis Supp. 2016); id. § 75-9-
201 (Supp. 2017). The district court continued to apply the 2014
version of the statute to resolve the case, and though both parties
note the repeal and replacement, neither argues that the district
court erred in applying section 75-5-503. We therefore follow suit
and apply section 75-5-503.

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construe the language in the power of attorney.” And
referencing the requirements of section 75-5-503, it determined
that “[t]here is no language in [the Power of Attorney] expressly
authorizing [Melvin’s] agent to amend the Trust.” The court
noted that “each specific reference to the Trust” in the Power of
Attorney “expressly limits the agent to Melvin’s rights ‘as
Trustee’ of the Trust,” and that the Trust makes clear that only
the Grantors could amend the Trust. Further, the court
determined that because the language in the Power of Attorney
must be strictly construed, its broad language “cannot be
construed to grant [Melvin’s] agent power to amend his Trust”
as required by section 75-5-503. Rather, because the Power of
Attorney “did not specifically authorize his agent to act as
Grantor of or otherwise modify the Trust,” Glenna’s signature
on the Second Amendment as Grantor on Melvin’s behalf
“exceeded the Power of Attorney.” The court directed Glenna to
prepare an order consistent with the decision.

¶9 On June 15, 2016, before Glenna filed her proposed order,
Murie and her husband Brent Murie 3 filed a motion captioned
“Motion in Support of Petition or Amended and Supplementary
Answer and Cross-Petition and for Related Supplementary
Discovery and Supplementary Proceedings” (the Motion). The
Muries contended that, during the June 8 summary judgment
hearing, offhand comments made by Glenna’s attorney hinted at
certain Trust administration issues of which the Muries had not
been previously aware, and they asserted that upon further
inquiry “it became clear . . . that [Murie] was being denied
proper disclosure, input, involvement, valuation, accounting,
partition, and other arrangements consonant with fair and
equitable treatment” in relation to the Trust.

3. All references herein to Murie are to Kim Murie individually.
When referring to both Kim and Brent Murie we refer to them
collectively as “the Muries.”

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¶10 The Muries argued in their motion that even if the Second
Amendment is judged void, the other Trust administration
issues would need to be resolved. They therefore asked the
district court to allow their petition to go forward, invoking rule
15(a) of the Utah Rules of Civil Procedure for leave to amend,
rule 15(d) for leave to file supplementary pleadings, and rule
20(a) for leave to join additional parties to the proceeding. They
concurrently filed a proposed “Verified Petition (or Amended
and Supplementary Answer and Cross-Petition) for An
Accounting, Declaratory Judgment, Valuation, Partition, and
Other Relief” (the Proposed Verified Petition).

¶11 Glenna did not file a memorandum in opposition, and the
Muries never submitted the motion to the court for decision.
Glenna subsequently filed her proposed order, which
memorialized the district court’s summary judgment decision in
her favor and stated that the judgment was final. Murie filed an
objection to it on the same day (the Objection). In the Objection,
Murie referred to the Motion, the Proposed Verified Petition,
and the “numerous other as-yet unresolved issues” she
identified in them, and she informed the district court that she
did “not believe that [the court] intended to render a final
judgment and dismiss the entire litigation.” Instead, she stated
that she believed the court “intended to take the normal
approach of deciding all petitions, issues, and disputes that may
arise in relation to a trust estate, and then rendering one final
integrated judgment.” She thus asked the court to grant only
partial summary judgment, rendering judgment that the Second
Amendment was void as the court had ruled, but not issuing a
“final and appealable judgment . . . until a comprehensive
resolution is reached or adjudicated as to all controversies,
matters, petitions, and parties in relation to” the Trust.

¶12 The district court signed Glenna’s proposed order and
overruled the Objection. In so doing, the court declined to
entertain, as part of this lawsuit, the Motion and the Proposed
Verified Petition. The court concluded that it was inappropriate
to keep the matter open to resolve the various Trust

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administration issues Murie identified. It noted that the “sole
issue” in the proceeding was “whether or not the Second
Amendment to the Trust was valid,” and that it had already
entered a ruling that it was not. In this regard, the court stated
that it would “not be prudent to allow [Murie] to extend this
declaratory judgment matter into a long [protracted] estate
matter when [Glenna] filed a petition seeking specific
declaratory relief on one issue.” The court also noted that Murie
retained the “ability to seek relief from the Court in a separate
matter” under Utah Code section 75-7-201(2)(b) regarding any
Trust administration issues she believed required court
supervision.

¶13 The Muries appeal. 4

ISSUES AND STANDARDS OF REVIEW

¶14 Murie argues that the district court’s summary judgment
ruling was erroneous. In particular, she argues that the court
erred in ruling that the Second Amendment was void as a matter
of law. “The court shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of

4. Murie alone answered the declaratory judgment action and
responded to Glenna’s motion for summary judgment in her
capacity as a beneficiary of the Trust. Accordingly, Brent Murie
is not a party to the appeal of the court’s rulings related to that
order. See generally Utah Down Syndrome Found., Inc. v. Utah
Down Syndrome Ass’n, 2012 UT 86, ¶ 9, 293 P.3d 241 (observing
that “persons or entities that are not parties to a proceeding are
not entitled to an appeal as of right”). His participation in this
appeal is limited to the district court’s alleged failure to properly
consider the motion to file the Muries’ Proposed Verified
Petition, which included a request to allow Brent Murie to join as
co-petitioner with Murie.

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law.” Utah R. Civ. P. 56(a). “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.” In re Evan O.
Koller Revocable Living Trust, 2018 UT App 26, ¶ 8, 414 P.3d 1099
(quotation simplified).

¶15 She also argues that the district court erred by entering
judgment in the case without addressing the “other unresolved
existing controversies . . . related to the Trust” that she identified
in the Motion and the Proposed Verified Petition and referred to
in the Objection. Relatedly, the Muries argue that the court erred
by denying them leave to file the Proposed Verified Petition or
amended and supplementary pleadings. We generally review
these types of decisions for abuse of discretion. See Stichting
Mayflower Mountain Fonds v. United Park City Mines Co., 2017 UT
42, ¶¶ 46–52 (motions to amend); Green v. Louder, 2001 UT 62,
¶ 40, 29 P.3d 638 (motions to join a party); Jensen v. Ruflin, 2017
UT App 174, ¶ 23, 405 P.3d 836 (requests to grant a continuance).

ANALYSIS

I. The Second Amendment to the Trust

¶16 Murie argues that the district erred in concluding that the
Second Amendment was void as a matter of law. She contends
that the court erred in applying Utah Code section 75-5-503
when it determined that the Power of Attorney did not expressly
authorize Glenna to amend the Trust on Melvin’s behalf. In
particular, she contends that the Power of Attorney “expressly
contemplated the kind of act in which [Glenna] engaged when
she signed the Second Amendment,” and that the broad and
plain language of the Power of Attorney bestowed on her the
authority to modify the Trust. She also asserts that in
interpreting the Power of Attorney, the district court improperly
“attempted to graft a limiting distinction between Trust
‘Grantor’ authority and ‘Trustee’ authority.”

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¶17 Murie’s argument requires us to interpret and apply the
relevant statute, section 75-5-503, to the Power of Attorney.
When we interpret statutes, we seek to discern and give effect to
the legislature’s intent. MacDonald v. MacDonald, 2017 UT App
136, ¶ 10, 402 P.3d 178, cert. granted, 409 P.3d 1046 (Utah 2017).
“The best evidence of the legislature’s intent is the plain
language of the statute itself.” Marion Energy, Inc. v. KFJ Ranch
P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (quotation simplified).
Therefore, we “assume, absent a contrary indication, that the
legislature used each term advisedly according to its ordinary
and usually accepted meaning.” Id. (quotation simplified). “In
looking to determine the ordinary meaning of nontechnical
terms of a statute, our starting point is the dictionary.”
MacDonald, 2017 UT App 136, ¶ 10 (quotation simplified).
“When we can ascertain the intent of the legislature from the
statutory terms alone,” as is the case here, “no other interpretive
tools are needed, and our task of statutory construction is
typically at an end.” Id. (quotation simplified).

¶18 Applying these principles, we agree with the district court
that, under section 75-5-503 and the Power of Attorney, the
Second Amendment was void as a matter of law. Section
75-5-503 is a codification of the common law rules limiting an
agent’s powers in relationship to a trust to the actions expressly
authorized in the power of attorney. See Fields v. CUNA Mutual
Ins. Society, Inc., No. 2:05-cv-01027-BSJ, 2011 WL 3319441, at *3
(D. Utah Aug. 1, 2011). It provides that “[a] power of attorney
may not be construed to grant authority to an attorney-in-fact or
agent to perform any of the following, unless expressly
authorized in the power of attorney: (1) create, modify, or revoke
an inter vivos revocable trust created by the principal.” Utah
Code Ann. § 75-5-503(1) (LexisNexis Supp. 2014). 5 The plain

5. Section 75-5-503 also includes in its list of actions that required
express authorization: “fund, with the principal’s property, a
trust not created by the principal or by a person authorized to
create a trust on behalf of the principal”; “make or revoke a gift
(continued…)

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terms of this statute indicate a clear intent that an attorney-in-
fact may not “create, modify, or revoke” a relevant trust
unless that authorization is directly and explicitly stated in
the written power of attorney. See id. See generally Express,
Black’s Law Dictionary (10th ed. 2014) (“Clearly and
unmistakably communicated; stated with directness and
clarity.”); Express, Merriam-Webster.com, https://www.merriam-
webster.com /dictionary/express [https://perma.cc/YCL4-GFRQ]
(“directly, firmly, and explicitly stated”).

¶19 The Second Amendment expressly purported to change
terms of the Trust by deleting, replacing, and adding new
paragraphs to the Trust. It was therefore clearly a modification
of the Trust. See Modify, Black’s Law Dictionary (10th ed. 2014)
(“To make somewhat different; to make small changes to
(something) by way of improvement, suitability, or effectiveness
. . . .”); Modify, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/modify [https://perma.cc/G5UA-67DF]
(“to make minor changes in” or “to make basic or fundamental
changes in often to give a new orientation to or to serve a new
end”). Thus, section 75-5-503 plainly required that any authority
to modify the Trust be expressly included in the Power of
Attorney. See Utah Code Ann. § 75-5-503(1). It was not. There is
no language in the Power of Attorney directly and explicitly
conferring upon Glenna as attorney-in-fact the power to modify
the Trust on Melvin’s behalf. 6

(…continued)
of the principal’s property, in trust or otherwise”; and “designate
or change the designation of beneficiaries to receive any
property, benefit, or contract right on the principal’s death.”
Utah Code Ann. § 75-5-503(2)–(4) (Supp. 2014).

6. The case on which Murie relies to support her interpretation of
the Power of Attorney, Eagar v. Burrows, 2008 UT 42, 191 P.3d 9,
only bolsters our conclusion that Melvin did not confer upon
(continued…)

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¶20 Nevertheless, Murie suggests that we may infer authority
to modify the Trust from the broad, general grants of authority
included in the Power of Attorney. We reject this suggestion.
Our courts have repeatedly stated that powers of attorney are to
be strictly construed. See Kline v. Utah Dep’t of Health, 776 P.2d 57,
61 (Utah Ct. App. 1989) (stating that the scope of authority
conferred by a power of attorney “may, by the terms of the
instrument itself, be general or limited, but the instrument
creating this agency relationship is to be strictly construed”); see
also Eagar v. Burrows, 2008 UT 42, ¶ 19, 191 P.3d 9 (citing Kline,
776 P.2d at 61); Franklin Credit Mgmt. Corp. v. Hanney, 2011 UT
App 213, ¶ 21, 262 P.3d 406 (same). This means that while the
power of attorney itself is to be construed “as a whole in order to
ascertain the parties’ intentions and rights,” the scope of
authority provided in the power of attorney is construed “so as
to exclude the exercise of any power that is not warranted either
by the actual terms used, or as a necessary means of executing
the authority with effect.” In re Estate of Miller, 446 S.W.3d 445,
455 (Tex. Ct. App. 2014); see also id. (“Under these rules of
construction, powers of attorney . . . are to be strictly construed,
and authority delegated is limited to the meaning of the terms in
which it is expressed.”); 3 Am. Jur. 2d Agency § 27 (2013)
(explaining that in powers of attorney “the meaning of general

(…continued)
Glenna the authority to modify the Trust on his behalf. In Eagar,
the Utah Supreme Court considered, among other things,
whether the agent had power to gift the principal’s personal
property under the relevant power of attorney. Id. ¶¶ 16–21. The
court concluded that because the power of attorney explicitly
granted the agent the power to gift the principal’s personal
property, the agent’s actions in gifting the principal’s personal
property was allowed. Id. In contrast, here, there is no explicit
grant of authority to allow Glenna to modify the Trust on
Melvin’s behalf. Thus, under Eagar’s relevant holding, Murie’s
argument fails.

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words . . . is restricted by the context and construed accordingly”
and that “the authority given is construed strictly so as to
exclude the exercise of any power that is not warranted either by
the terms actually used or as a necessary means of executing
with effect the authority given”).

¶21 Here, the Power of Attorney includes several broad grants
of authority, such as conferring upon Glenna the authority to act
“with respect to all matters to the fullest extent that [Melvin] as
an individual [is] permitted by law to perform by and through
an agent (including what [he] may do as Trustee of [the Trust]),”
and “to do any and all other things necessary and proper in the
conduct of [his] personal, business, banking and Trust affairs.”
But those general, broad grants are informed and bounded by
the specific grants of power and, as we have explained, there is
no specific grant addressing Melvin’s authority to modify the
Trust. See 2A C.J.S. Agency § 130 (2003) (“General expressions,
however broad, are construed as limited to acts of the kind
indicated by the appointment, and not extended to support an
inference of an unusual agency or authority which is
inconsistent with that limitation.”); Restatement (Second) of
Agency § 34 cmt. h (Am. Law Inst. 1958) (explaining that, in
construing powers of attorney, “[a]ll-embracing expressions are
discounted or discarded” and “[t]hus, phrases like ‘as
sufficiently in all respects as we ourselves could do personally in
the premises’. . . are disregarded as meaningless verbiage”).
Indeed, the specific powers identified in the Power of Attorney
by-and-large deal with actions related to funds, such as
depositing or investing funds, and other like-actions, including
those related to real estate transactions, taxes, and making gifts.
Further, the only category of authority mentioned with
particularity vis-à-vis the Trust itself and Glenna’s authority is
Melvin’s authority as a Trustee. And, as the district court aptly
observed, the Trust explicitly provided that only the Grantors,
not the Trustees, had power to modify the Trust.

¶22 In sum, because the Power of Attorney did not include an
express authorization to Glenna to modify the Trust, and

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because we decline to infer that authorization from the Power of
Attorney’s broad, general language, the district court correctly
concluded that the Second Amendment was void as a matter of
law under section 75-5-503. 7

II. The Motion, the Proposed Verified Petition, and the Objection

¶23 The Muries also argue that the court erred and exceeded
its discretion in declining to reach the other Trust-related issues
identified in the Motion and the Proposed Verified Petition and
referred to in the Objection. We disagree and affirm the district
court’s decision.

¶24 The Muries filed the Motion and the Proposed Verified
Petition on June 15, 2016, a week after the court granted Glenna’s
motion for summary judgment. The Muries argued that the
court should grant leave to allow their petition to proceed or
leave to amend Murie’s answer under rule 15(a) and file
supplementary pleadings under rule 15(d), as well as leave for
parties to be joined under rule 20(a). Glenna did not file a
responsive memorandum, and neither Glenna nor the Muries
thereafter filed a request that the motion be submitted for
decision. The Motion and the Proposed Verified Petition were
therefore not properly before the court. See Utah R. Civ. P. 7(g)
(“When briefing is complete or the time for briefing has expired,
either party may file a ‘Request to Submit for Decision,’ but, if no
party files a request, the motion will not be submitted for
decision.”); see also Golding v. Ashley Central Irrigation Co., 902
P.2d 142, 148 (Utah 1995) (stating that “[b]ecause no notice [to
submit the matter for decision] was ever filed, Golding’s motion

7. To the extent Murie suggests that we ought to conclude, even
if the Second Amendment is void, that the Trust nonetheless has
some obligation to repay her for services she conferred to it, we
have no authority to do so here. Issues regarding any obligation
of the Trust to Murie were not litigated in the district court, and
as a result, it is improper for us to decide them on appeal.

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for leave to file a second amended complaint, with its new claim
under the rescue doctrine, was never properly before the district
court,” and concluding that the district court therefore “did not
err by not addressing” the claim). As a result, we cannot fault the
court for not granting the Muries leave to file the Proposed
Verified Petition, amend pleadings, or join new parties.

¶25 Moreover, we cannot discern an abuse of discretion in the
district court’s overruling of Murie’s Objection to Glenna’s
proposed order, in which Murie argued that the numerous
issues identified in the Motion and the Proposed Verified
Petition made final judgment inappropriate. A district court is
endowed with discretion in exercising its “inherent power to
manage its docket.” See Jensen v. Ruflin, 2017 UT App 174, ¶ 23,
405 P.3d 836 (quotation simplified). When Murie filed the
Objection, discovery had been completed, the deadline for
dispositive motions had passed, and the district court had
resolved the only issue before it: whether the Second
Amendment was void. The case was effectively over. Given that
posture, the court was well within its discretion to reject Murie’s
suggestion (made in an objection to the form of an order, no less)
that the court should wait to enter final judgment until issues not
yet before the court had been resolved. See id. And apart from
arguing that it would be more prudent to generally decide issues
involving the same Trust in the same proceeding and
conclusively asserting that the district court’s refusal to address
those issues had created “an intolerable and unmanageable
Kafkaesque mess,” Murie has directed us to no authority
suggesting that the district court nonetheless abused its
discretion. 8

8. Without rendering an opinion regarding the viability or
substance of Murie’s Trust administration claims, like the district
court, we note that Murie is not without an avenue to pursue
them. She may, if she chooses, invoke the jurisdiction of a
competent court to pursue those claims if she believes a court’s
(continued…)

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¶26 Accordingly, we affirm the district court’s decision to
decline to prolong the litigation to address the Trust
administration issues Murie referred to in the Objection.

CONCLUSION

¶27 We affirm the district court’s summary judgment order.
The court correctly concluded that the Second Amendment was
void as a matter of law under Utah Code section 75-5-503.

¶28 We also affirm the district court’s decision to enter final
judgment rather than prolong the litigation to allow Murie to
pursue issues relating to the administration of the Trust that
were not properly before the court.

(…continued)
supervision is necessary. See Utah Code Ann. § 75-7-201(2)(b)
(LexisNexis Supp. 2017) (providing that “aspects of the
administration of a trust shall proceed expeditiously consistent
with the terms of the trust, free of judicial intervention and
without order, approval or other action of any court, subject to
the jurisdiction of the court as invoked by interested parties or as
otherwise exercised as provided by law”).

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