McBroom v. Child , 820 Utah Adv. Rep. 36 ( 2016 )

This opinion is subject to revision before
publication in the Pacific Reporter
2016 UT 38
IN THE
SUPREME COURT OF THE STATE OF UTAH
DON MCBROOM and HELEN IMMELT,
Appellants,
v.
WILLIAM H. CHILD, SHELDON CHILD, WILLIAM CRITCHLOW III,
PATRICIA CHILD, WILLIAM STEVEN CHILD, SHAUNA CHILD,
NANCY CHILD, DAVID CHILD, SUSAN CHILD, TAMARA CHILD,
KAREN CHILD, MICHAEL CHILD, KEYBANK NATIONAL ASSOCIATION,
and JOHN DOES 1-50,
Appellees.
No. 20140929
Filed August 26, 2016
On Direct Appeal
Third District, Salt Lake
The Honorable Paul G. Maughan
No. 110918878
Attorneys:
Mark F. James, Mitchell A. Stephens, Salt Lake City,
G. Stephen Long, Nicole A. Westbrook, Denver, CO,
for appellants
Alan L. Sullivan, Jared C. Fields, Christopher S. Hill,
Shawn T. Richards, R. Stephen Marshall, Steven J. McCardell,
Salt Lake City, for appellees
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE and JUDGE MORTENSEN joined.
Having been recused JUSTICE DURHAM does not participate;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.
MCBROOM v. CHILD
Opinion of the Court
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Fifty-six years after the death of Rufus Call Willey, founder of
the R.C. Willey & Son furniture empire, two of his grandchildren,
Helen Immelt and Don McBroom, sued Helen Barber (their
grandmother), William Child (their uncle; hereinafter Mr. Child),
Sheldon Child (Mr. Child’s brother), William Critchlow III (Mr. Child’s
attorney), and KeyBank 1 (as successor to Commercial Security Bank),
alleging that they had deprived Ms. Immelt and Mr. McBroom of their
rightful inheritance under the terms of their grandfather’s will. We hold
that all of Ms. Immelt’s claims and most of Mr. McBroom’s claims are
barred by the terms of a Stock Settlement and Purchase Agreement
(1973 Agreement) pursuant to which Ms. Immelt and Mr. McBroom
(through Commercial Security Bank, as guardian of his estate)
exchanged their contingent remainder interests under the will for five
shares each in R.C. Willey & Son, Inc., which they then sold back to the
business for $1,000 per share. As to Mr. McBroom’s remaining two
claims, we conclude that his breach of fiduciary duty claim against
Mr. Child is circular and therefore fails, and that his breach of fiduciary
duty claim against KeyBank is barred by the applicable statute of
limitations. Accordingly, we affirm the district court’s grant of
summary judgment against Ms. Immelt and Mr. McBroom in all
respects.
BACKGROUND
I. RUFUS CALL WILLEY’S ESTATE
¶2 In the early 1930s, Mr. Willey founded R.C. Willey & Son as a
sole proprietorship, selling appliances door to door in Syracuse, Utah.
The business was successful enough that in 1949 or 1950 Mr. Willey
opened a 600-square-foot showroom adjacent to his home. In 1951,
Mr. Willey’s daughter Darline married Mr. Child, who began working
1
The plaintiffs actually named KeyBank and Key Corporation, Inc.,
d/b/a KeyCorp, as defendants. Key Corporation, it appears, is
unrelated to KeyCorp, the corporate parent of KeyBank. Regardless, the
parties stipulated to the dismissal of Key Corporation and KeyCorp. In
light of this history, and in order to avoid confusion, we refer only to
KeyBank throughout this opinion.
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Opinion of the Court
in Mr. Willey’s store soon thereafter. In June 1954, Mr. Willey fell ill.
Mr. Willey asked Mr. Child to manage the store while he recuperated,
but his condition worsened and Mr. Willey died on September 3, 1954,
without returning to work.
¶3 The day before Mr. Willey died, he signed a Last Will and
Testament that provided a life estate for his wife, Helen Swaner Willey,
who later remarried and changed her name to Helen Barber
(Ms. Barber). The remainder was to pass to his three children (Darrell
Willey, Betty McBroom, and Darline Child) or, if they predeceased his
wife, to their children. The will also allowed for Ms. Barber to operate
the business “as a partner or otherwise.”
¶4 In 1956, Mr. Willey’s will was probated in Davis County. The
Second District Court issued a “Decree Settling First and Final Account
of Administratrix with Will Annexed and of Distribution.” The decree
granted Ms. Barber “any and all power and authority reasonably
necessary to carry on said business of R.C. Willey & Son in a good and
businesslike manner, and . . . [to] operate said business either as sole
proprietor or partner or otherwise.”
¶5 In 1959, Ms. Barber and Mr. Child incorporated R.C. Willey &
Son, Inc., allowing them to operate the business as a corporation. 2
Under the Articles of Incorporation, Ms. Barber and Mr. Child had
equal ownership of the corporation’s shares (150 each), with nominal
shares (one each) allocated to Sheldon Child, Clyde Barber
(Ms. Barber’s second husband), and Dean Swaner (Ms. Barber’s
brother). Mr. Child described Ms. Barber’s interest in the corporation as
a life estate subject to the remainder interests created by the will, while
Mr. Child’s half was based on Mr. Child’s labor and contributions to
the growth of the company. Ms. Barber passed away in 1989.
II. THE 1973 AGREEMENT
¶6 In 1973, Mr. Child, Ms. Barber, and all of Mr. Willey’s
children and grandchildren entered into an agreement that addressed
the ownership of all shares of stock in R.C. Willey & Son (the 1973
Agreement). Some of the grandchildren, including Mr. McBroom, were
minors at the time and were represented in the transaction by
2 All further references to R.C. Willey & Son are to the corporate
entity.
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Commercial Security Bank, which the Second District Court appointed
as their guardian. The 1973 Agreement was drafted by Mr. Critchlow,
who represented several parties in the related transactions, including
Mr. Child. Mr. Critchlow also represented the minor grandchildren,
including Mr. McBroom, and their parents in petitioning for the
appointment of Commercial Security Bank as guardian for
Mr. McBroom and the other minors involved.
¶7 Before the 1973 Agreement, the shares of R.C. Willey & Son
stock were held as follows:
Name Shares
Helen Swaner Willey Barber 508
(Life Estate in 498)
William H. Child 510
Sheldon Child 1
Clyde Barber 1
Dean Swaner 1
Total Shares Outstanding 1021
¶8 After the 1973 Agreement, the shares were redistributed as
follows:
Shareholder Shares
Helen Swaner Willey Barber 269
Darrell S. Willey 60
Betty J. McBroom 60
William H. Child 428
Marty W. McBroom 5
Helen Darline M. Alexander 5
(Ms. Immelt)
Randie Carol W. Boldra 5
Tricia Loraine Willey 5
William Steven Child 41.5
Minor children of Darline H. Child 124.5
(deceased)
Minor daughter of Darrell S. Willey 5
Minor children of Betty J. McBroom
(including Mr. McBroom) 10
Sheldon Child 1
Clyde Barber 1
Dean Swaner 1
Total Shares 1021
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The 1973 Agreement stated that this distribution was based on an
actuarial valuation of each person’s interest (vested or contingent). 3
¶9 The 1973 Agreement rescinded all prior agreements related
to the disposition of stock in R.C. Willey & Son and noted that, under
the terms of the will, Darrell Willey, Betty McBroom, and Darline Child
“and their respective children were bequeathed successive contingent
remainder interests in and to the said business assets and goodwill of
the business known as [R.C. Willey & Son].” Because Darline Child had
passed away, her children’s interests had vested under the terms of the
will. At the time of the 1973 Agreement, the rest of the grandchildren,
the children of Betty McBroom (including Ms. Immelt and
Mr. McBroom) and the children of Darrell Willey, held only contingent
remainder interests in Mr. Willey’s estate, which included the “business
assets and goodwill” of R.C. Willey & Son. Through the 1973
Agreement, Ms. Immelt and Mr. McBroom exchanged their contingent
remainder interests for five shares each in R.C. Willey & Son. The 1973
Agreement also provided for the immediate purchase by the business
of the shares allocated to Ms. Immelt and for the purchase of
Mr. McBroom’s shares once Mr. McBroom reached the age of majority,
at a price of $1,000 per share.
III. MS. IMMELT
¶ 10 Ms. Immelt was twenty-one years old when she signed the
1973 Agreement. She had a close relationship with her grandmother,
Ms. Barber, who lived across the street from her. One day in 1973, when
Ms. Immelt was outside of her home, Ms. Barber approached her,
3 We note that Ms. Immelt and Mr. McBroom contest the validity of
the actuarial valuation referenced in the 1973 Agreement. To support
their contention that “the distribution under the 1973 Agreement was
not based on actuarial science,” they cite testimony from an “expert
actuarialist.” But that expert was never disclosed as an expert witness,
and his affidavit was produced for the first time in Ms. Immelt and
Mr. McBroom’s reply in support of their motion to reconsider. Because
the affidavit was not properly before the district court when it issued its
first and second summary judgment rulings and because Ms. Immelt
and Mr. McBroom filed it months after they had moved to certify the
district court’s rulings as final, we may not and do not consider it.
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presented Ms. Immelt with the signature page of the 1973 Agreement,
and asked her to sign it. “[Ms.] Barber explained to [Ms.] Immelt that
she wanted to do something nice for all of her grandchildren” and was
gifting them $5,000 each. Based on that conversation, Ms. Immelt
believed that the $5,000 payment, which she does not dispute having
received, was a gift and that the agreement her grandmother had her
sign was to facilitate receipt of that gift. Ms. Immelt claims that she was
shown only “a signature page” and that she did not know of the
substance of the agreement, but the record shows that she signed at
least four copies of the signature page.
IV. MR. MCBROOM
¶ 11 Mr. McBroom was a minor at the time the 1973 Agreement
was executed. As a minor, he had to be represented by a guardian in
the transaction, so Ms. Barber had Mr. McBroom and his mother sign a
Petition for Appointment of Guardian to be filed with the Second
District Court.
¶ 12 In August 1973, Ms. Barber visited Mr. McBroom and his
family in Upland, California, and informed him that she was going to
give him a gift of $5,000 when he turned twenty-one years old. She told
him that in order to receive the gift, he needed to sign several
documents. Mr. McBroom was illiterate and could not read the
documents, so his mother or his grandmother read them for him. He
did not ask his mother what the documents meant. According to his
testimony, he understood that he was signing for a $5,000 gift that he
would receive when he turned twenty-one years old. The documents he
signed included the guardianship petition and a waiver of notice of the
guardianship proceedings.
¶ 13 The Second District Court appointed Commercial Security
Bank as guardian of the estates of Mr. McBroom and the other minor
grandchildren. On September 17, 1973, Commercial Security Bank filed
a petition for approval of the 1973 Agreement on behalf of
Mr. McBroom and the other minor grandchildren. The Second District
Court approved the 1973 Agreement on October 12, 1973. Under the
terms of the 1973 Agreement, Mr. McBroom would receive $5,000 in
exchange for his five shares. On March 11, 1975, upon the petition of
Commercial Security Bank, the district court authorized the sale of
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Mr. McBroom’s five shares of stock to R.C. Willey & Son for $1,000 per
share. 4 On April 27, 1976, the Second District Court approved the
guardian’s report and accounting regarding the estates of
Mr. McBroom and his brother Dirk McBroom, and it discharged
Commercial Security Bank from its guardianship responsibilities as of
May 1, 1977. Mr. McBroom turned twenty-one on August 8, 1977.
V. THE MUTUAL RELEASE
¶ 14 In October 1995, Ms. Immelt and her then husband sued
Mr. Child and fourteen other defendants in an unrelated case in the
Bankruptcy Court of the United States District Court for the Central
District of California. Ms. Immelt sued because of the garnishment of
her paychecks pursuant to a ruling against her based on the
mismanagement of her mother’s estate. On November 27, 1995,
Ms. Immelt and her then husband settled their case by entering into a
Mutual Release with Mr. Child. The Mutual Release included the
following provision:
The Immelts, for and in consideration of mutual
covenants and promises, hereby release, acquit and
forever discharge William Child, his heirs, executors,
administrators, successors and assigns from any and all
4 Mr. McBroom alleges that he never received the $5,000 owed to
him for his shares under the 1973 Agreement. He presented expert
testimony that “it is highly probable” that his signature on a 1976
Receipt, Release and Settlement of Account for the receipt of $4,770
from Commercial Security Bank was “not authored by
[Mr. McBroom],” i.e., forged. The defendants contest this allegation,
noting that Mr. McBroom testified that his grandmother gave him
money for his university tuition, “dorms,” and school supplies and that
the money she paid him “was part of [his] $5,000 gift.” He eventually
asked his grandmother whether there was “anything left over out of
[his] gift,” and after his grandmother told him that he needed to go to
R.C. Willey & Son to receive the remaining amount of the gift, he went
“over to the store and . . . got it.” The defendants also argue that even if
Mr. McBroom were not fully compensated for his shares, his cause of
action would be against R. C. Willey & Son, which is not party to this
lawsuit. We agree with the defendants on this point and therefore do
not reach the issue regarding Mr. McBroom’s receipt of the money.
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claims, demands, controversies, actions, causes of action,
damages and liabilities of any nature whatsoever,
whether at law or equity, whether or not such claims are
now or previously known, unknown, suspected, alleged
or claimed.
VI. PROCEDURAL HISTORY
¶ 15 In November 2011, Ms. Immelt and Mr. McBroom filed a
complaint in the Third District Court in Salt Lake County against
Mr. Child, Sheldon Child, Patricia Child, and Mr. Child’s children
(collectively, Child appellees); Mr. Critchlow; KeyBank; and fifty
unnamed individuals. The complaint included claims of quiet title
(against the Child appellees and the fifty unnamed individuals), civil
conspiracy (against Mr. Child, Mr. Critchlow, and KeyBank), breach of
fiduciary duty (against Mr. Child and Sheldon Child), conversion
(against Mr. Child, Mr. Critchlow, and KeyBank), and intentional
interference with inheritance (against Mr. Child, Mr. Critchlow, and
KeyBank). Ms. Immelt brought separate claims for conspiracy to
defraud (against Mr. Child and Mr. Critchlow) and negligent
misrepresentation (against Mr. Child and Mr. Critchlow). And
Mr. McBroom brought a separate claim for breach of fiduciary duty
(against KeyBank). The Child appellees filed counterclaims against
Ms. Immelt and Mr. McBroom for breach of the 1973 Agreement,
breach of the Mutual Release, and defamation.
¶ 16 The district court first granted summary judgment for the
Child appellees on all of Ms. Immelt’s claims against them and on
Mr. McBroom’s claim for quiet title. The district court denied the Child
appellees’ motion for summary judgment on the remainder of the
claims, and the parties moved forward with discovery. At the close of
discovery, the Child appellees again moved for summary judgment.
The district court granted summary judgment, disposing of the rest of
Mr. McBroom’s claims against the Child appellees and Mr. McBroom’s
claims against KeyBank, holding that “Mr. McBroom had sufficient
information regarding the guardianship proceeding to create a duty of
further inquiry” and, therefore, that “these claims are barred by the
statute of limitations.” In its third summary judgment order, the district
court granted summary judgment for Mr. Critchlow on all of
Ms. Immelt’s and Mr. McBroom’s claims against him.
¶ 17 Ms. Immelt and Mr. McBroom appealed the grants of
summary judgment, pursuant to the district court certification of
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finality under rule 54(b) of the Utah Rules of Civil Procedure. We have
jurisdiction over this appeal under Utah Code section 78A-3-102(3)(j).
STANDARDS OF REVIEW
¶ 18 “We review a district court’s grant of summary judgment for
correctness and afford no deference to the court’s legal conclusions.”
Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 36, 250 P.3d 465. In our
review, we view “the facts and all reasonable inferences . . . in the light
most favorable to the nonmoving part[ies],” here, Ms. Immelt and
Mr. McBroom. Id. “We may affirm a grant of summary judgment upon
any grounds apparent in the record.” Id.
ANALYSIS
¶ 19 We affirm the district court’s grants of summary judgment.
With respect to the quiet title claim, the claim for breach of fiduciary
duty against Sheldon Child, and Ms. Immelt’s claim for breach of
fiduciary duty against Mr. Child, we note that the parties have not
briefed these claims on appeal. Therefore, we deem them abandoned
and do not address them further in this opinion. In our analysis below,
we first address Ms. Immelt’s remaining claims and determine that
they fail because she cannot, as a matter of law, have reasonably relied
on her grandmother’s statements to her about the purpose of the 1973
Agreement. We then consider Mr. McBroom’s claims and determine
that the Second District Court’s orders approving the 1973 Agreement
and the guardianship proceedings operate as a bar to the majority of
Mr. McBroom’s claims and that Mr. McBroom failed to seek to set aside
the Second District Court’s orders or the guardianship proceedings. 5
With respect to Mr. McBroom’s breach of fiduciary duty claims, we
agree with the district court that the claim against Mr. Child is circular
and therefore fails as a matter of law and that the claim against
KeyBank is barred by the statute of limitations because Mr. McBroom
did not present a sufficient basis to toll its application.
5 Because we are of the opinion that Mr. McBroom did not plead a
claim for fraud on the court or otherwise seek to set aside the relevant
Second District Court orders and proceedings, we need not and do not
reach the question of whether the Third District Court would have had
jurisdiction to hear those claims.
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I. MS. IMMELT’S CLAIMS TO SET ASIDE
THE 1973 AGREEMENT
¶ 20 We hold that the 1973 Agreement is a complete bar to all of
Ms. Immelt’s claims. The core of Ms. Immelt’s argument is that the
district court erred in granting summary judgment against her because
she presented evidence that she “was induced into signing the 1973
Agreement on the basis of material misrepresentations.” And she seeks
to distinguish case law charging her with knowledge of the 1973
Agreement on the basis that she did not see the rest of the document
and thought the agreement’s purpose was to facilitate a gift from her
grandmother. These arguments fail because they do not demonstrate
the existence of a genuine issue of material fact with respect to a key
element of fraud-based claims: reasonable reliance. See Price-Orem Inv.
Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986) (“Utah
long ago acknowledged the tort of negligent misrepresentation, which
provides that a party injured by reasonable reliance upon a second
party’s careless or negligent misrepresentation of a material fact may
recover damages resulting from that injury when the second party had
a pecuniary interest in the transaction, was in a superior position to
know the material facts, and should have reasonably foreseen that the
injured party was likely to rely upon the fact.”); Robinson v. Tripco Inv.,
Inc., 2000 UT App 200, ¶ 19, 21 P.3d 219 (“One of the elements of fraud
that a plaintiff must prove is that he or she, ‘acting reasonably and in
ignorance of the statement’s falsity, did in fact rely upon the
misrepresentation.’” (citation omitted)). 6
¶ 21 The catch with Ms. Immelt’s claims is that she
unquestionably signed the 1973 Agreement and is charged with
knowledge of its content. In Utah, “a party cannot reasonably rely upon
oral statements by the opposing party in light of contrary written
information.” Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1068
(Utah 1996). So even assuming that Ms. Immelt’s grandmother said that
she was going to give Ms. Immelt a $5,000 gift, Ms. Immelt could not
reasonably rely on the false information. Even if the only document she
was provided with was the signature page of the 1973 Agreement, that
6 Because we decide that the 1973 Agreement serves as a complete
bar to all of Ms. Immelt’s claims, we need not and do not reach her
arguments regarding the Mutual Release.
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page included the statement that “this Agreement may be enforced in
equity by specific performance or injunction, or both, and that such
remedies shall be cumulative.” This language is a clear indicator that
she was signing a legally binding document. Additionally, the first line
of the signature page starts in the middle of a sentence, which should
have alerted Ms. Immelt to the fact that the signature page was not a
self-contained document but that the full document included at least
one more page in addition to the one she was shown. Ms. Immelt
should have asked for the rest of the pages of the 1973 Agreement so
she could read and understand what she was signing. However, there
is no evidence that she ever sought to obtain the document she signed.
Because Ms. Immelt had already reached the age of majority, she had a
“duty [to] exercis[e] such degree of care to protect [her] own interests as
would be exercised by an ordinary, reasonable and prudent person
under the circumstances.” Id. (citation omitted). This duty certainly
included inquiring after the rest of the pages of the 1973 Agreement
and reading them in order to fully understand the agreement that she
was making.
¶ 22 “No matter how naive or inexperienced [Ms. Immelt] [was],
[she] could not close [her] eyes and accept unquestioningly any
representations made to [her]. It was [her] duty to make such
investigation and inquiry as reasonable care under the circumstances
would dictate.” Id. (citation omitted). Because she failed to do so, she
“is precluded from holding someone else to account for the
consequences of [her] own neglect.” Id. (citation omitted). “One party to
a contract does not have a duty to ensure that the other has a complete
and accurate understanding of all terms embodied in a written
contract.” Res. Mgmt. Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028,
1047 (Utah 1985). Instead, “[e]ach party has the burden to understand
the terms of a contract before he affixes his signature to it and may not
thereafter assert his ignorance as a defense.” Id. “To permit a party . . .
to admit that he signed [a written contract] but to deny that it expresses
the agreement he made or to allow him to admit that he signed it but
did not read it or know its stipulations would absolutely destroy the
value of all contracts.” Garff Realty Co. v. Better Bldgs., Inc., 234 P.2d 842,
844 (Utah 1951). Ms. Immelt cannot use her subjective belief that she
was merely receiving a gift from her grandmother, nor can she use the
fact that she did not read the rest of the 1973 Agreement, to escape the
knowledge that was imputed to her once she affixed her signature to
that agreement.
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¶ 23 We recognize that
a person who, having the capacity and an opportunity to
read a contract, is not misled as to its contents and who
sustains no confidential relationship to the other party
cannot avoid the contract on the ground of mistake if he
signs it without reading it, at least in the absence of
special circumstances excusing his failure to read it.
Id. (emphasis added); see also Tocco v. Richman Greer Prof’l Ass’n, 912
F. Supp. 2d 494, 521 (E.D. Mich. 2012) (“The Michigan courts have long
recognized that a plaintiff cannot establish a reasonable reliance by
relying ‘on oral representations that are contradicted by a written
contract between the parties or otherwise conflict with a written
document that is readily available to the plaintiff.’” (citation omitted)).
Ms. Immelt had the capacity to read the 1973 Agreement. Unlike
Mr. McBroom, there is no evidence suggesting that she was illiterate or
otherwise incapable of reading the 1973 Agreement. Ms. Immelt also
had the opportunity to read it. As stated above, she had a duty to ask
for and read the rest of the pages of the 1973 Agreement. Because there
is no indication that she made such an effort, we cannot assume that
her grandmother would not have complied with the request. In
addition, Ms. Immelt did not have a confidential relationship with any
of the parties to the 1973 Agreement. 7 Nor do we determine that there
were special circumstances rising to a level sufficient to “excus[e] [her]
failure to read [the contract].” Garff Realty, 234 P.2d at 844. As a result,
Ms. Immelt cannot avoid the effects of the 1973 Agreement on the
grounds of fraud or negligent misrepresentation.
¶ 24 In short, Ms. Immelt signed the 1973 Agreement. Therefore,
she is charged with knowledge of its contents under the law, even
though her grandmother made separate oral representations regarding
its contents. Ms. Immelt could not rely upon her grandmother’s
representations when she was given the 1973 Agreement signature
page, which clearly indicated that she was signing a legally binding
7
Ms. Immelt labels her relationship with Ms. Barber as “close” and
asserts that at the time she signed the 1973 Agreement they visited
“several times a day.” She does not, however, maintain that their
relationship rose to the level of a legally cognizable confidential
relationship.
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document; as an adult, she was under a duty of ordinary and
reasonable care, and she was expected to ask for and read the rest of the
document to know, understand, and protect her own interests. Thus,
Ms. Immelt is “bound both at law and in equity, even though [she]
suppose[d] the writing [was] an instrument of an entirely different
character.” Id. Consequently, the 1973 Agreement stands as a complete
defense to all of her claims; Ms. Immelt signed away all her rights to
R.C. Willey & Son when she exchanged her contingent remainder
interest in the business for five shares of stock, which she then sold for
$5,000.
II. MR. MCBROOM’S CLAIMS TO SET
ASIDE THE 1973 AGREEMENT
¶ 25 Most of Mr. McBroom’s claims are likewise barred by the
1973 Agreement. However, his claims are slightly more complicated
because Mr. McBroom was a minor when the 1973 Agreement was
signed. His interests were represented by a guardian at the time—
Commercial Security Bank, the predecessor to KeyBank. He argues that
his claims, which require the court to set aside the 1973 Agreement and
guardianship proceedings in order to grant him relief, stand as
“independent equitable action[s].” St. Pierre v. Edmonds, 645 P.2d 615,
618 (Utah 1982). Specifically, Mr. McBroom claims that his lawsuit was
an “independent action for fraud on the court.” In the alternative,
Mr. McBroom argues that no court approved the 1973 Agreement and
thus no court order needs to be set aside for him to recover. For reasons
set forth below, we hold that the 1973 Agreement bars Mr. McBroom’s
claims, with the exception of his breach of fiduciary duty claims against
Mr. Child and KeyBank.
¶ 26 The Second District Court approved the 1973 Agreement.
Mr. McBroom cannot challenge the 1973 Agreement or the
guardianship proceedings unless he pleads an independent action for
fraud on the court seeking to set aside the court orders or files a rule
60(b) motion. UTAH R. CIV. P. 60(b); Gillmor v. Wright, 850 P.2d 431, 435–
36 (Utah 1993). Mr. McBroom did not file a rule 60(b) motion, but
claims that he filed an “independent equitable action.” However,
Mr. McBroom argued his “independent action” to set aside the orders
of the Second District Court for the first time in his response to
KeyBank’s motion for summary judgment. His summary judgment
memorandum does not meet the pleading requirements of Utah law.
See UTAH R. CIV. P. 8(a). Furthermore, his complaint cannot constitute
an “independent action” in this context because, even though
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Mr. McBroom claimed the orders were procured by fraud, he did not
file any claim asking that the Second District Court’s orders approving
the 1973 Agreement or guardianship proceedings be set aside due to
fraud on the court. Thus, he did not file an independent, equitable
action to set aside the court orders, and he cannot collaterally challenge
the 1973 Agreement or guardianship proceedings, which were
approved by the Second District Court.
¶ 27 In the alternative, Mr. McBroom argues that “[n]o court ever
approved of the 1973 Agreement” and that, as a result, “no court has to
set it aside in order for [Mr.] McBroom to make a claim for damages.”
We find these assertions vexing. The Second District Court clearly
approved the 1973 Agreement as it relates to Mr. McBroom. The order
is actually titled “Order Approving Stock Settlement and Purchase
Agreement” (i.e., the 1973 Agreement). Because of the Second District
Court’s approval, Mr. McBroom was obligated to file an independent
action for fraud on the court or a rule 60(b) motion seeking to set the
1973 Agreement aside. He failed to do so. As a result, the majority of
his claims are barred by the 1973 Agreement.
III. MR. MCBROOM’S BREACH OF
FIDUCIARY DUTY CLAIMS
¶ 28 The only claims not barred by the 1973 Agreement are
Mr. McBroom’s breach of fiduciary duty claims. Those claims fail for
other reasons: Mr. McBroom’s argument regarding the breach of
fiduciary duty by Mr. Child is circular and must fail, and
Mr. McBroom’s claim against KeyBank is barred by the statute of
limitations because Mr. McBroom has not met the requirements for
application of the equitable discovery rule.
A. Mr. McBroom’s Breach of Fiduciary Duty Claim
Against Mr. Child
¶ 29 Mr. McBroom first argues that Mr. Child violated the
fiduciary duty that he owed to Mr. McBroom as a shareholder in
R.C. Willey & Son. Mr. McBroom claims that he was a minority
shareholder in R.C. Willey & Son since 1959. He further argues that
“[Mr.] Child had an obligation to ensure [Mr.] McBroom was treated
fairly under the 1973 Agreement” but failed to do so as evidenced by
the “unequal treatment” of Mr. McBroom in the terms of the 1973
Agreement.
¶ 30 Mr. Child counters that, “at most, Mr. McBroom was a
contingent remainderman” and that “Mr. McBroom was not a
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Opinion of the Court
shareholder in [R.C. Willey & Son] until the execution of the 1973
Agreement.” Furthermore, he argues that the terms of the 1973
Agreement, which was “a transaction for cash payment for outstanding
shares of stock . . . supported by the opinions of court-appointed
appraisers,” did not constitute a breach of fiduciary duty.
¶ 31 Mr. McBroom’s argument against Mr. Child presupposes
that Mr. McBroom was owed a fiduciary duty prior to the 1973
Agreement. But Mr. McBroom held only a contingent remainder
interest in his grandfather’s business under the terms of the will. His
interest would vest only if his mother predeceased his grandmother. A
contingent remainder beneficiary interest is not the same as an
ownership interest in the company. Mr. McBroom was not a
shareholder of R.C. Willey & Son under the terms of the will; he did not
become a shareholder until his guardian agreed to exchange
Mr. McBroom’s contingent remainder interest in the company for a
present possessory interest in the form of five shares of stock in R.C.
Willey & Son, which he then sold back to the company for $5,000. Thus,
it was not until the 1973 Agreement that Mr. McBroom held a vested
interest in R.C. Willey & Son and was owed a fiduciary duty; without
the 1973 Agreement, Mr. McBroom was not owed a fiduciary duty as a
shareholder of R.C. Willey & Son by Mr. Child. The very act that
created the fiduciary duty cannot be held to have violated the fiduciary
duty. 8 Therefore, the argument that Mr. Child violated his fiduciary
duty to Mr. McBroom by causing him to enter into the 1973 Agreement
is circular and must fail.
8
We pause to note that Mr. McBroom offers no authority for the
proposition that a corporate officer or director owes a fiduciary duty to
a holder of a contingent beneficial interest in stock in a company. Nor
are we aware of any such authority, even in the context of a closely held
corporation.
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MCBROOM v. CHILD
Opinion of the Court
B. Mr. McBroom’s Breach of Fiduciary Duty Claim
Against KeyBank
¶ 32 The final claim is Mr. McBroom’s breach of fiduciary duty
claim against KeyBank, which the district court found was barred by
the applicable statute of limitations. Mr. McBroom argues that “[t]he
trial court invaded the province of the jury” by making factual findings
against Mr. McBroom and by holding that the equitable discovery rule
did not toll the statute of limitations and thus preserve his claim against
KeyBank. Specifically, Mr. McBroom argues that he merits the
application of equitable tolling based on the concealment of his claim or
on exceptional circumstances. As a result, Mr. McBroom claims,
summary judgment was incorrectly granted for KeyBank.
¶ 33 KeyBank, in turn, argues that Mr. McBroom’s claims are
barred by the statutes of limitations. It further argues that the statutes
of limitations are not tolled by the equitable discovery rule because
Mr. McBroom failed to “show[] that he did not know and could not
reasonably have known of the facts underlying the cause of action in
time to comply with the limitations period.” Additionally, KeyBank did
not conceal from Mr. McBroom his cause of action.
¶ 34 We conclude that Mr. McBroom’s fiduciary duty claim
against KeyBank does not merit application of the equitable discovery
rule. The rule applies in either of two situations:
(1) a plaintiff does not become aware of the cause of
action because of the defendant’s concealment or
misleading conduct or (2) the case presents exceptional
circumstances and the application of the general rule
would be irrational or unjust, regardless of any showing
that the defendant has prevented the discovery of the
cause of action.
Berneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128 (internal quotation
marks omitted). “Yet before a statute of limitations may be tolled under
either situation, the plaintiff must make an initial showing that he did
not know nor should have reasonably known the facts underlying the
cause of action in time to reasonably comply with the limitations
period.” Id. Here, Mr. McBroom has not “show[n] that he did not know
nor should have reasonably known the facts underlying [his] cause of
action in time to reasonably comply with the limitations period.” Id.
¶ 35 Since Mr. McBroom was a minor at the time of the 1973
Agreement and when his guardian sold his shares in 1975, the statute
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Opinion of the Court
of limitations did not begin to run on his claim until he reached the age
of majority on August 8, 1977. 9 UTAH CODE § 78B-2-108. Under the
applicable statute of limitations, he was required to bring his claim
against KeyBank’s predecessor, Commercial Security Bank, within
three years of that date. Id. § 78B-2-221. Mr. McBroom had enough
information about the transactions to give rise to a duty “to exercise
reasonable diligence in discovering the facts that gave rise to [his] cause
of action” upon reaching the age of majority. Colosimo v. Roman Catholic
Bishop of Salt Lake City, 2004 UT App 436, ¶ 23, 104 P.3d 646.
9 Mr. McBroom argues that the Second District Court lacked
jurisdiction to approve of the sale of his shares because “he had
obtained the age of majority” and therefore “the guardian ha[d] no
further rights in the estate.” He cites Stanton v. Stanton for the
proposition that “both before and after the 1975 amendment to [the
Utah majority statute], the statutory age of majority for both males and
females in Utah was 18, not 21.” 429 U.S. 501, 505 (1977) (Stevens, J.,
dissenting). Mr. McBroom fails to acknowledge that this quote is
actually from Justice Stevens’s dissenting opinion in Stanton and is not
a statement of the law regarding the age of majority in Utah. See id.
Instead, at the time of the Second District Court’s approval of the sale of
Mr. McBroom’s shares, the age of majority for a male in Utah was
twenty-one years. See Stanton v. Stanton, 421 U.S. 7, 9 (1975) (referencing
the appellant’s argument “that Utah Code Ann. § 15-2-1 (1953) to the
effect that the period of minority for males extends to age 21 and for
females to age 18, is invidiously discriminatory” (footnote omitted)).
On March 24, 1975, the Utah Legislature amended the statute and
established a uniform age of majority of eighteen years. Law of
March 24, 1975, ch. 39, 1975 Utah Laws 121. The legislation went into
effect on May 13, 1975. See Wiker v. Wiker, 600 P.2d 514, 515 (Utah 1978).
Mr. McBroom turned eighteen on August 8, 1974, and KeyBank
petitioned to sell his shares in February 1975. On those dates, the
amendment to the age of majority was not yet in effect. Thus,
Mr. McBroom was still a minor at the relevant time, and the Second
District Court had jurisdiction over the guardianship proceedings. Cf.
Memmott v. Bosh, 520 P.2d 1342, 1343 (Utah 1974) (“[W]hen a minor
attains majority status the guardian has no further rights in the estate
and only has a duty to account to or to make a settlement with his
former wards.”).
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Opinion of the Court
¶ 36 In other words, Mr. McBroom was on inquiry notice
regarding his claim against KeyBank. The “inquiry notice maxim [is]
that ‘the means of knowledge is equivalent to knowledge.’” Russell
Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 37, 108 P.3d 741 (citation
omitted). “Whatever is notice enough to excite attention and put the
party on his guard and call for inquiry is notice of everything to which
such inquiry might have led. When a person has sufficient information
to lead him to a fact, he shall be deemed conversant of it.” First Am.
Title Ins. Co. v. J.B. Ranch, Inc., 966 P.2d 834, 838 (Utah 1998) (citation
omitted). Under the present circumstances, we hold that Mr. McBroom
was on inquiry notice regarding his cause of action against KeyBank.
¶ 37 Mr. McBroom signed the guardianship petition and the
waiver of notice of the guardianship proceedings, and he had his
mother or his grandmother read the documents for him (although he
no longer remembers what they said). In the thirty-seven years between
the conclusion of the guardianship proceedings and his review of the
court documents in 2010, and after receiving part or all of the $5,000 he
was owed, Mr. McBroom did not make any effort to look into what he
signed in the early 1970s or how it related to his interest in Mr. Willey’s
estate. In light of Mr. McBroom’s knowledge of the 1973 Agreement
and the guardianship, Mr. McBroom had a duty to exercise reasonable
diligence to discover the rest of the facts surrounding his cause of
action as it related to his guardian’s actions on his behalf. His
knowledge of the circumstances surrounding his cause of action put
him on inquiry notice of his cause of action against KeyBank. As a
result, because Mr. McBroom has not made the initial showing required
by the discovery rule that “he did not know nor should have
reasonably known the facts underlying [his] cause of action in time to
reasonably comply with the limitations period,” he does not merit its
application to toll the statute of limitations for his claim against
KeyBank. Berneau, 2009 UT 87, ¶ 23. Thus, the statute of limitations bars
his claim against KeyBank.
CONCLUSION
The 1973 Agreement bars all of Ms. Immelt’s claims and most of Mr.
McBroom’s claims, with the exception of Mr. McBroom’s breach of
fiduciary duty claims against Mr. Child and KeyBank. Mr. McBroom’s
fiduciary duty claim against Mr. Child fails because it is circular. And
the statute of limitations bars Mr. McBroom’s fiduciary duty claim
against KeyBank because he was on inquiry notice of the facts of his
claim and did not show that he met the threshold requirement for
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Opinion of the Court
application of the equitable discovery rule to toll the statute of
limitations. As a result, we affirm the award of summary judgment and
remand the matter to the district court for further proceedings.
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