In re Phillips Living Trust , 2022 UT App 12 ( 2022 )

2022 UT App 12THE UTAH COURT OF APPEALS
IN THE MATTER OF THE JOHN EDWARD PHILLIPS
FAMILY LIVING TRUST.
PETER O. PHILLIPS,
Appellant,
v.
BANK OF UTAH, ET AL.,
Appellees.
Opinion
No. 20200381-CA
Filed January 27, 2022
First District Court, Logan Department
The Honorable Angela Fonnesbeck
No. 183100095
Adam S. Affleck, Attorney for Appellant
Brett N. Anderson and Scott R. Taylor, Attorneys for
Appellee Bank of Utah
James K. Tracy, Robert S. Tippett, James C.
Dunkelberger, and Hyrum Jacob Bosserman,
Attorneys for Appellee Rachel Phillips Selby
Fred D. Essig and Troy L. Booher, Attorneys for
Appellees Shaun Phillips, Michelle Mittleman, Doris
Rubio, and Charlene Phillips
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME and SENIOR JUDGE KATE
APPLEBY concurred.1
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
In re Phillips Living Trust
CHRISTIANSEN FORSTER, Judge:
¶1 This case concerns the administration of the testamentary
trust of John Edward Phillips (the JEP Trust). The terms of the
JEP Trust provided that upon the death of John Edward Phillips
(John),2 the trust assets were to be divided in three shares among
John’s three sons. The shares of two of the sons, James E. Phillips
and Peter O. Phillips, were to be held in separate trusts for their
respective benefit. The third son, John C. Phillips (Johnny), was
named trustee of the JEP Trust and of his brothers’ subtrusts.
¶2 After Johnny died, Bank of Utah (the Bank) became the
successor trustee of the JEP Trust and Peter’s daughter, Rachel
Phillips Selby, was appointed successor trustee of the Peter O.
Phillips subtrust (POP Trust). The Bank distributed by selling a
valuable trust asset, a farm property, to the highest bidder,
which was Johnny’s estate (the JCP Estate).
¶3 Peter, the main beneficiary of the POP Trust, took issue
with the Bank’s sale of the farm property to the JCP Estate. Peter
filed a petition seeking to have the farm property returned to the
JEP Trust and to remove the Bank as its successor trustee.
¶4 The Bank moved to dismiss Peter’s petition on the ground
that Peter lacked standing to challenge the distribution by sale of
the farm property and its role as trustee because Peter was not a
beneficiary of the JEP Trust. The district court agreed but did not
dismiss the petition. Instead, it substituted Selby as the
petitioner because, as the trustee of the POP Trust, she was the
real party in interest and therefore was the one with standing to
pursue the claims.
2. As is our practice, because the parties share the same last
name, we refer to each by their first name, with no disrespect
intended by the apparent informality.
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¶5 Selby and the other parties eventually executed an
agreement in which they settled all claims in the lawsuit. The
parties then submitted the signed agreement to the court for
approval. After this, Peter filed a motion to intervene. The court
denied Peter’s motion as untimely and approved the settlement
agreement.
¶6 Peter now challenges the district court’s decisions to
(1) dismiss him for lack of standing and substitute Selby as the
real party in interest and (2) deny his motion to intervene. We
affirm.
BACKGROUND
¶7 John created the JEP Trust through a restated trust
agreement and three amendments. The terms of the final JEP
Trust provided that the relevant JEP Trust assets were to be
divided into three shares for his sons: 45% to Johnny; 30% to
James; and 25% to Peter.3 The manner of distribution for each
share was also provided. Per the terms of the original JEP Trust
document, James’s share was to “be held in a separate Trust for
the benefit of James E. Phillips and his issue,” with Johnny as
trustee. And under the terms of the third amendment to the JEP
Trust, Peter’s share should be “distributed in the identical
manner” as that of James’s; that is, through a subtrust.
¶8 John died in May of 2014, triggering the distribution of
the JEP Trust assets. In accordance with the second amendment
to the JEP Trust, Johnny became sole trustee of the JEP Trust.
¶9 Shortly after John’s death, Peter filed a petition in the
district court asking to (1) invalidate the second and third
amendments to the JEP Trust, (2) remove Johnny as trustee of
3. John also has a daughter who was awarded “zero percent” of
the trust assets.
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the JEP Trust and appoint a successor trustee, (3) order Johnny to
provide an accounting for the JEP Trust, and (4) declare that
Peter’s share of the JEP Trust would not be held in a separate
trust.
¶10 Peter, Johnny, and James signed a stipulation that
resolved all these issues except the accounting issue. As relevant
here, the stipulation (1) declared the second and third
amendments to the JEP Trust to be valid; (2) kept Johnny as
trustee of the JEP Trust but named Peter’s daughter, Rachel
Phillips Selby, as successor trustee of the POP Trust; and
(3) declared that Peter’s share of the JEP Trust would be paid to
the POP Trust, not to Peter. With regard to the accounting issue,
the stipulation provided that Peter would retain his claims
“related to the accounting of and the distribution of the assets of
the JEP Trust.”
¶11 In 2015, while serving as trustee of the JEP Trust, Johnny
died. Johnny’s undistributed share of the JEP Trust passed to the
JCP Estate. The Bank was appointed as the successor trustee of
the JEP Trust.
¶12 In 2017, the Bank, as trustee, began to market
approximately 47.75 acres of farm property held by the JEP
Trust. After weeks of formal listing, the Bank received multiple
offers from third parties to purchase the farm property. The
“highest and best offer” received was an offer of $2,350,000 from
a local homebuilder. The Bank disclosed these offers to the JEP
Trust beneficiaries and other members of the Phillips family and
invited them to submit competing offers to purchase the farm
property; offers could include “a credit against the beneficiary’s
anticipated distribution.”
¶13 Thereafter, Charlene Phillips, Johnny’s estranged wife,
made an initial offer (the JCP Offer) to purchase the farm
property for a credit against her share of the JEP Trust on terms
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equal to the net value of the highest third-party offer.4 The JCP
Offer was then modified a number of times to ensure that the
purchase price was equal to or greater than the third-party offer.
In the end, the Bank accepted the modified JCP Offer, netting an
increase to the POP Trust of $1,179 over the highest third-party
offer, and conveyed the farm property to the JCP Estate.5
¶14 Unhappy with the transaction, Peter filed a petition in the
district court seeking relief on three claims related to the Bank’s
distribution of the farm property. First, Peter sought a
declaration that Johnny’s share of the JEP Trust should have
been distributed to Johnny’s children instead of to the JCP
Estate. Second, Peter sought to remove the Bank as trustee of the
JEP Trust. Third, Peter sought to set aside the Bank’s transfer of
the farm property to the JCP Estate.
¶15 The Bank moved to dismiss Peter’s petition for lack of
standing. The Bank argued that Peter lacked “standing to assert
the subject claims and [was] not the real party in interest”
because he was “not a beneficiary of the JEP Trust, but [was]
instead the beneficiary of” the POP Trust. Shortly thereafter,
Selby filed a motion to be joined as a petitioner in the matter,
asserting that any beneficial interest Peter would receive from
the JEP Trust was to be paid to the POP Trust, and she, as trustee
of the POP Trust, held any claims related to Peter’s share of the
JEP Trust. Accordingly, Selby argued she was “the real party in
interest” with standing to assert the claims brought by Peter.
4. Charlene—instead of the JCP Estate--made the initial offer on
the farm property because, pursuant to a California settlement
agreement, she will receive Johnny’s entire share in the JEP
Trust.
5. The modified offer was made by the JCP Estate, rather than
Charlene, to ensure that the capital gains tax savings that would
result from a distribution of the farm property to a beneficiary—
as opposed to a sale to a third party—would apply.
20200381-CA 5 2022 UT App 12In re Phillips Living Trust
¶16 The district court issued a memorandum decision
addressing both motions in which it agreed with the Bank that
Peter lacked standing to bring claims against the JEP Trust or the
Bank as successor trustee. The court reasoned that under Utah
law, Peter was not a beneficiary6 of the JEP Trust and, even if he
qualified as a beneficiary somehow, he had failed to meet any of
the “limited instances” where a beneficiary, rather than the
trustee, may bring suit against the trust. The court also noted it
had “place[d] great weight” on the stipulation in which Peter
acknowledged the validity of the JEP Trust and “in accordance
with the JEP Trust, any and all beneficial interest that Peter
would receive from the JEP Trust shall be paid over and
distributed to” the POP Trust. (Quotation simplified.)
Nevertheless, the court declined to dismiss the petition, finding
it appropriate to substitute Selby, in her capacity as trustee of the
POP Trust, as the sole petitioner.
¶17 After Selby replaced Peter as petitioner, she filed a new
petition with the district court, seeking an order to set aside the
transfer of the farm property from the JEP Trust to the JCP Estate
or, alternatively, for payment of damages by the Bank or the JCP
Estate for the wrongful distribution of the farm property. Selby’s
petition did not include Peter’s claims for declaratory relief, nor
did she seek to remove the Bank as trustee of the JEP Trust.
¶18 While Selby’s petition was still pending in the district
court, Selby entered into a global settlement agreement with all
parties in the case regarding the distribution of the farm
property. The agreement, which resolved all remaining issues,
was expressly conditioned on the court’s approval. It included a
request that the court order “that the distribution of the Farm
6. A beneficiary is a person who “has a present or future
beneficial interest in a trust, vested or contingent; or [who,] in a
capacity other than that of trustee, holds a power of appointment
over trust property.” Utah Code Ann. § 75-7-103(b) (LexisNexis
Supp. 2021).
20200381-CA 6 2022 UT App 12In re Phillips Living Trust
Property by the JEP Trust to the JCP Estate was proper.” It also
provided the POP Trust would receive a cash payment of
$30,000 from the JCP Estate in exchange for an agreement that
the JCP Estate would retain the farm property. Finally, upon
approval by the court, the terms of the settlement would be final
and not subject to appeal and the parties would be barred from
bringing any new claims relating to the farm property. The
settlement agreement was filed in court for approval through a
stipulated motion.
¶19 On November 7, 2019, seven days after Selby filed a
motion to approve the settlement agreement, Peter, along with
several other family members, filed motions to intervene. Peter
argued Selby lacked standing and authority to act as trustee of
the POP Trust because she was not willing to prosecute claims of
the POP Trust. He also asserted the proposed settlement
agreement would impair or impede his ability to pursue
“valuable claims” against the trustee of the JEP Trust and the
JCP Estate.
¶20 On November 12, 2019, the district court entered an order
approving the settlement agreement and dismissing the action
with prejudice.7 After dismissal, the Bank and the other parties,
including Selby, opposed the motions to intervene. The district
court denied the motions, concluding they did not satisfy the
requirements for intervention under rule 24 of the Utah Rules of
Civil Procedure because (1) they were “not timely filed”; (2) they
were “not accompanied by any pleading setting forth the claims
or defenses for which intervention is sought”; (3) the intervenors
did not “sufficiently explain how they are so situated that the
disposition of [the] action may, as a practical matter, impair or
7. Following the entry of the district court’s order, Peter filed a
motion with the court requesting that it alter, amend, or set aside
the order. The court denied this motion in the same decision in
which it denied Peter’s motion to intervene. Peter does not
challenge this decision on appeal.
20200381-CA 7 2022 UT App 12In re Phillips Living Trust
impede their ability to protect an interest in the subject of [the]
litigation”; and (4) the intervenors failed “to satisfy their burden
of showing that their interests are not adequately represented
by” Selby.
¶21 Thereafter, Peter filed a notice of appeal of the “entire
judgment” in the case, “including rulings on all pre- and post-
judgment motions.”
ISSUES AND STANDARDS OF REVIEW
¶22 Peter raises two issues on appeal. First, he contends the
district court erred in granting the Bank’s motion to dismiss his
petition for lack of standing and in substituting Selby as the real
party in interest. “When evaluating standing at the motion-to-
dismiss stage, the question of standing is primarily a question of
law, which we review for correctness.” Southern Utah Wilderness
All. v. San Juan County Comm’n, 2021 UT 6, ¶ 8, 484 P.3d 1160. “A
district court’s substitution ruling is a discretionary one that we
review for an abuse of discretion.” Bradburn v. Alarm Prot. Tech.,
LLC, 2019 UT 33, ¶ 8, 449 P.3d 20.
¶23 Second, Peter contends the district court erred when it
denied his motion to intervene to prevent the court’s approval of
the settlement agreement. “[A] ruling on a motion to intervene
encompasses several types of analysis, each subject to a different
standard of review.” Supernova Media, Inc. v. Pia Anderson Dorius
Reynard & Moss, LLC, 2013 UT 7, ¶ 14, 297 P.3d 599. “As a
general matter, the factual findings underpinning an
intervention ruling are subject to a clearly erroneous standard
while the district court’s legal conclusions are reviewed for
correctness.” Gardiner v. Taufer, 2014 UT 56, ¶ 13, 342 P.3d 269(quotation simplified). “We review for abuse of discretion the
district court’s determination of whether the motion to intervene
was timely filed.” Supernova, 2013 UT 7, ¶ 15 (stating that
“timeliness depends on the facts and circumstances of each
particular case” (quotation simplified)). “We review for
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correctness the district court’s determination of whether the
intervenor has claimed an interest relating to the property or
transaction which is the subject of the action.” Id. ¶ 16 (quotation
simplified). “The district court’s determinations of whether the
disposition of the action may as a practical matter impair or
impede the intervenor’s ability to protect the claimed interest
and whether that interest is adequately represented by existing
parties, are entitled to deferential review.” Id. ¶ 17 (quotation
simplified). “Finally, we review with some deference the district
court’s ultimate decision to grant or deny a motion to intervene.”
Id. ¶ 18.
ANALYSIS
I. Motion to Dismiss for Lack of Standing
¶24 Peter contends the district court erred in ruling that he
lacked standing to pursue his claims against the JEP Trust and
substituting Selby as the real party in interest.8 “Standing is a
jurisdictional requirement that must be satisfied before a court
may entertain a controversy between two parties.” Jones v.
Barlow, 2007 UT 20, ¶ 12, 154 P.3d 808 (quotation simplified).
“Under the traditional test for standing, the interests of the
parties must be adverse and the parties seeking relief must have
a legally protectible interest in the controversy.” Id. (quotation
simplified).
¶25 Rule 17 of the Utah Rules of Civil Procedure states that
“[e]very action shall be prosecuted in the name of the real party
in interest.” Utah R. Civ. P. 17(a). “It further mandates that ‘[n]o
8. Appellees contend this court lacks jurisdiction to consider this
issue “because Peter did not timely appeal from orders that
denied Peter’s attempts to intervene and participate as a party in
the action.” We are not persuaded that we lack jurisdiction and
therefore resolve the issues raised on appeal on their merits.
20200381-CA 9 2022 UT App 12In re Phillips Living Trust
action shall be dismissed on the ground that it is not prosecuted
in the name of the real party in interest until a reasonable time
has been allowed’ for, among other things, substitution of the
real party in interest.” Trapnell & Assocs., LLC v. Legacy Resorts,
LLC, 2020 UT 44, ¶ 37, 469 P.3d 989 (alteration in original)
(quoting Utah R. Civ. P. 17(a)). “The real party in interest is the
person entitled under the substantive law to enforce the right
sued upon and who generally, but not necessarily, benefits from
the action’s final outcome.” Orlob v. Wasatch Med. Mgmt., 2005
UT App 430, ¶ 17, 124 P.3d 269 (quotation simplified).
¶26 In the context of trust litigation, rule 17 provides that a
“trustee of an express trust” is a real party in interest with
authority to bring trust claims. See Utah R. Civ. P. 17(a). Thus, a
beneficiary’s right to bring suit against third parties is limited
and may arise only in instances where (1) the beneficiary’s
interests are hostile to the trustee’s; (2) there is no trustee and the
beneficiary must maintain a suit in equity to protect their interest
against a third party; or (3) “the trustee has ceased to be trustee,
as by death, resignation or removal.” Hillcrest Inv. Co., LLC v.
Utah Dep’t of Transp., 2012 UT App 256, ¶ 23, 287 P.3d 427(quotation simplified).
¶27 Here, the district court concluded that because Peter was
not a beneficiary of the JEP Trust, he lacked standing to bring
claims against the JEP Trust and substituted Selby, as trustee of
the POP Trust, as petitioner. The court found that Peter “does
not have any control or management of the POP Trust [or] the
JEP Trust” and that “[t]he POP Trust holds any legal title to the
property in and distributed from the JEP Trust, not Peter.” The
court also noted that, in any event, Peter had failed to
demonstrate any of the limited instances that would allow a
beneficiary to sue a third party.
¶28 In addition, the court placed “great weight” on the
stipulation affirming the validity of the JEP Trust that was
signed by all the parties, including Peter. In signing that
stipulation, Peter had (1) “acknowledge[d] the validity of the JEP
20200381-CA 10 2022 UT App 12In re Phillips Living Trust
Trust documents,” including the second and third amendments;
(2) agreed that his beneficial interest in the JEP Trust would be
distributed to the POP Trust; (3) agreed that the POP Trust
would be governed by the terms of the JEP Trust; and (4) agreed
that Selby would be appointed trustee of the POP Trust.
¶29 Despite this, Peter asserts the district court’s dismissal
was in error and that he had standing to bring his claims
challenging the distribution of the farm property for two
reasons. First, he asserts that he is in fact a beneficiary of the JEP
Trust as defined under the Utah Trust Code. Second, he argues
the terms of the JEP Trust agreement do not prohibit him from
participating in questions affecting the distribution of his share
of the JEP Trust. Peter’s first argument was not preserved for
appeal, and his second argument is incorrect.
¶30 Peter did not argue in the district court that under the
definitional provisions of the Utah Trust Code he is a beneficiary
of the JEP Trust because he retained a testamentary power of
appointment over trust property under the JEP Trust. In his
opposition to the Bank’s motion to dismiss, Peter argued that
“[u]nder the plain language of the JEP Trust, [he] is a
beneficiary” of the JEP Trust and “has a legally protected
interest” in the trust assets. He reasoned the language of the JEP
Trust, particularly the third amendment, named him, not the
POP Trust, as the intended beneficiary of the JEP Trust. In
addition, he asserted the POP Trust is merely the “manner” in
which his distributive share of the JEP Trust will be handled.
¶31 This argument, which focuses solely on the interpretation
of the plain language of the JEP Trust, including the third
amendment, is “based upon an entirely distinct legal theory”
from the one Peter now raises on appeal—that he is a beneficiary
under section 75-7-103(1)(b) of the Utah Trust Code. See True v.
Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338(quotation simplified). Because Peter did not raise this theory
below, he cannot raise it on appeal. See Jacob v. Bezzant, 2009 UT
37, ¶ 34, 212 P.3d 535 (“We do not address arguments brought
20200381-CA 11 2022 UT App 12In re Phillips Living Trust
for the first time on appeal unless the district court committed
plain error or exceptional circumstances exist.” (quotation
simplified)); Sprague v. Avalon Care Center, 2019 UT App 107,
¶ 48, 446 P.3d 132. Accordingly, we decline to address it further.
¶32 Second, Peter did not retain the legal right to challenge
any trust distribution based on the third amendment to the JEP
Trust, which created the POP Trust. As an initial matter, Peter
contends certain portions of the original JEP Trust evidence
John’s intent that Peter was to have a say in matters concerning
his share of the JEP Trust, “even though the assets determined to
constitute [his] share[] . . . would, ultimately, be transferred from
the JEP Trust to the subtrusts and distributed pursuant to the
terms thereof.” But Peter ignores that the original trust
agreement must be interpreted in light of the third amendment,
which created the POP Trust.
¶33 The creation of the POP Trust vested legal ownership of
all Peter’s beneficial rights in the JEP Trust to Selby, as trustee,
“to hold and manage . . . for the benefit of beneficiaries.” See
Davis v. Young, 2008 UT App 246, ¶ 18, 190 P.3d 23 (quotation
simplified). Moreover, as trustee of the POP Trust, Selby has
“exclusive control of the trust property,” which includes control
over any distribution from the JEP Trust to the POP Trust. See id.(quotation simplified). Thus, it is Selby, not Peter, who will
benefit from the claim seeking to invalidate the sale of the farm
property because she alone controls distributions from the JEP
Trust to the POP Trust. Peter is merely a beneficiary of a
beneficiary of the JEP Trust; he will receive distributions only
from the POP Trust, not the JEP Trust. Therefore, Selby, not
Peter, is the real party in interest with standing to bring claims
against the JEP Trust.
¶34 Additionally, Peter contends that because he signed the
JEP Trust stipulation, which provided that he “specifically
reserved his claims relating to ‘the accounting and the
distribution of assets of the JEP Trust’” asserted in his first
petition, he retained a direct right under the terms of the JEP
20200381-CA 12 2022 UT App 12In re Phillips Living Trust
Trust to challenge the distribution of the farm property. This
argument fails for three reasons. First, Peter made no claims
concerning the distribution of the farm property in his first
petition. Second, Peter could not reserve his claim to challenge
the October 11, 2017 distribution of the farm property through a
stipulation finalized on December 22, 2014, almost three years
earlier. And finally, Peter’s purported reservation of a claim that
he lacked standing to assert simply means that Peter in fact
reserved nothing.
¶35 In sum, the district court correctly concluded Peter lacked
standing to bring claims against the JEP Trust. The court also
correctly determined that Selby, as the trustee of the POP Trust,
was the real party in interest with standing to bring the claims.
Accordingly, its decision to substitute Selby as petitioner was not
an abuse of discretion.9
9. While the Bank’s motion to dismiss and Selby’s motion for
substitution were pending, Camille Vasquez, in her capacity as
guardian ad litem for Clifford Phillips (CJ), a minor son of
Johnny, filed a motion to dismiss Peter’s first claim (as to CJ
only) for declaratory relief to establish that Johnny’s children
succeeded to Johnny’s beneficial interest in the JEP Trust
following Johnny’s death. Vasquez argued that CJ had
“affirmatively waived any interest in the JEP Trust” pursuant to
the terms of a settlement agreement among him, his half-
siblings, and Johnny’s estranged wife in litigation regarding the
parties’ respective interests in the JCP Estate (the JCP
Settlement). In addition, Vasquez argued the doctrine of claim
preclusion barred Peter from challenging the validity of CJ’s
waiver because the issue was previously litigated when the court
approved the JCP Settlement.
Peter opposed CJ’s motion, asserting CJ’s waiver did not
qualify as a disclaimer of CJ’s beneficial interest. Moreover, Peter
asserted he was not precluded from asserting his claim, because
(continued…)
20200381-CA 13 2022 UT App 12In re Phillips Living Trust
II. Motion to Intervene
¶36 Peter next contends the district court erred in denying his
motion to intervene as of right pursuant to rule 24(a) of the Utah
Rules of Civil Procedure. Under rule 24(a), a party attempting to
intervene must establish four elements:
(1) that its motion to intervene was timely, (2) that
it has an interest relating to the property or
transaction which is the subject of the action,
(3) that the disposition of the action may as a
practical matter impair or impede its ability to
protect that interest, and (4) that its interest is not
adequately represented by existing parties.
Gardiner v. Taufer, 2014 UT 56, ¶ 17, 342 P.3d 269 (quotation
simplified).
¶37 The district court denied Peter’s motion to intervene on
the grounds that Peter did not meet any of the four requirements
of rule 24(a). First, the court found Peter’s motion to intervene
was untimely because Peter “had actual notice of the
proceedings” but waited to file his motion until “after the parties
(…continued)
he was not a party to the JCP Settlement and the JCP Settlement
was not a final judgment on the merits.
The district court agreed with Vasquez that CJ’s waiver in
the settlement divested him of any beneficial interest in the JEP
Trust and that the issue had already been adjudicated in the
settlement. Accordingly, it dismissed Peter’s claim.
Peter now argues the district court erred in granting
Vasquez’s motion to dismiss because CJ’s waiver was ineffective
and the issue had not been adjudicated in the JCP Settlement.
We need not reach the merits of this claim because, as discussed
in Section I, Peter lacks standing to bring claims against the JEP
Trust.
20200381-CA 14 2022 UT App 12In re Phillips Living Trust
had entered into the settlement agreement and over a year into
the litigation.” Second, the court concluded Peter failed to claim
an interest relating to the JEP Trust because Peter sought
intervention solely to challenge Selby’s authority to act as trustee
of the POP Trust and to remove her as trustee. Third, the court
found Peter did not sufficiently explain how the approval of the
settlement agreement would impair or impede his ability to
protect his claimed interests as a beneficiary of the POP Trust.
Fourth, the court held that even if Peter’s interests as a
beneficiary of the POP Trust were impaired by the approval of
the settlement agreement, he failed to satisfy his burden of
showing his interests were not adequately represented by Selby.
¶38 We need not address all these issues because we agree
with the district court that Peter’s motion to intervene was
untimely. “Timeliness is determined under the facts and
circumstances of each particular case, and in the sound
discretion of the court.” Supernova Media, Inc. v. Pia Anderson
Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 23, 297 P.3d 599(quotation simplified). “A party may waive its right to intervene
by substantially and unjustifiably delaying its motion to
intervene.” Id. ¶ 24 (quotation simplified). “Generally, a motion
to intervene is timely if it is filed before the final settlement of all
issues by all parties, and before entry of judgment or dismissal.”
Id. (quotation simplified).
¶39 Peter filed his motion to intervene (and thereby sought to
block the court’s approval of the fully executed settlement
agreement) on November 7, 2019. But the record is unequivocal
that Peter was aware of the settlement agreement long before it
was finalized and he never objected to it. On May 25, 2019, Selby
contacted all the beneficiaries of the POP Trust—including
Peter—via email to inform them of a settlement offer from the
JCP Estate that would resolve the “farm [property] distribution
dispute.” The email invited Peter to provide input on the
proposed settlement, but he did not raise any objection. Then, on
September 25, 2019, Selby again sent Peter an email updating the
specific terms of the settlement agreement and asking if he had
20200381-CA 15 2022 UT App 12In re Phillips Living Trust
any objections to them; again, he raised no objections. On
October 4, 2019, all parties entered into the final settlement
agreement, which was signed by all parties and filed with the
district court on October 31, 2019. But Peter did not file his
motion to intervene until seven days later.
¶40 Based on these circumstances, we cannot say the court
abused its discretion in finding Peter’s motion to intervene was
untimely. See In re Questar Gas Co., 2007 UT 79, ¶ 33, 175 P.3d 545(upholding the denial of a motion to intervene where the “failure
to intervene earlier was not for lack of knowledge or notice of
the proceedings” and one of the intervenors “originally
participated in the proceedings”). Because Peter had actual
notice of the settlement agreement for five months and neglected
to act, we cannot say the court abused its discretion in finding
Peter’s motion to intervene was untimely. See Supernova, 2013 UT
7, ¶ 24; see also Republic Ins. Group v. Doman, 774 P.2d 1130, 1131
(Utah 1989).
¶41 Having concluded the district court did not abuse its
discretion in determining that Peter’s motion to intervene was
untimely, “we can affirm the district court’s ruling on
intervention without addressing the other requirements of rule
24(a).” See Parduhn v. Bennett, 2005 UT 22, ¶ 18, 112 P.3d 495.
CONCLUSION
¶42 The district court properly granted the Bank’s motion to
dismiss Peter as a party based upon his lack of standing and
acted within its discretion in substituting Selby as petitioner
because, as trustee of the POP Trust, she is the real party in
interest to challenge the farm property distribution. The court
also did not abuse its discretion in denying Peter’s motion to
intervene. We therefore affirm.
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