In re Estate of Anderson ( 2016 )

2016 UT App 179THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ESTATE OF VERN A. ANDERSON
DENISE TERRY,
Appellant,
v.
BRYAN J. ANDERSON,
Appellee.
Memorandum Decision
No. 20140382-CA
Filed August 25, 2016
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 103900939
Margaret S. Edwards, Attorney for Appellant
Brent K. Wamsley, Attorney for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.
and KATE A. TOOMEY concurred. 1
GREENWOOD, Senior Judge:
¶1 Denise Terry appeals the trial court’s exclusion of her
expert witness report and its denial of her motion for a new trial.
We affirm.
¶2 Vern A. Anderson (Anderson) died in February 2009. In
November of that same year, his son, Bryan J. Anderson (Bryan),
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
In re Estate of Anderson
filed an application for the informal administration of
Anderson’s estate, indicating that Anderson had died intestate.
The trial court appointed Bryan as personal representative for
Anderson’s estate. Anderson’s daughter, Denise Terry (Denise),
thereafter filed a motion to set aside the appointment, alleging
that Anderson had executed a will in 1980 that, to her
knowledge, had never been revoked. She also indicated that
she was in possession of both the will and a gift letter signed by
her father, dated January 1, 2008, which purportedly gave
Denise all of Anderson’s “personal belongings, possessions
[a]nd properties including two homes located in Kearns, Utah.”
Denise asserted that she had been the caregiver for both her
father and mother prior to their deaths. Bryan contested the
authenticity of the gift letter, and the parties prepared to proceed
to trial on that issue.
¶3 In February 2012, Bryan designated Kathy S. Carlson as
his expert witness and forensic document examiner. In March
2012, Denise disclosed that she intended to call George J.
Throckmorton as her expert witness. Each party disputed some
aspect of the other’s expert designation, but at a pretrial
conference in August, the trial court and the parties agreed that
the court would appoint a single expert witness to serve in the
case, for whom the parties would share the cost. 2 In October,
“[a]fter reviewing the qualifications of the proposed experts, the
Court [found] that James A. Tarver, Forensic Document
2. Our review of the record reveals that the trial court
recommended the appointment of a joint expert, and neither
party objected. Bryan frames this process as an “agreement” that
the court would appoint a joint expert. In her reply brief, Denise
does not contest this characterization. Thus, while Denise did
not agree to the specific expert selected by the court, she does
appear to have agreed to undergo the court’s recommended
joint-expert selection process.
20140382-CA 2 2016 UT App 179In re Estate of Anderson
Examiner, [was] the best qualified to serve as the Court’s expert
in this matter.” The parties submitted to the trial court their
questions for Tarver, and Tarver provided answers to the
questions, along with other relevant findings, in a
“document examination report.”
¶4 As the date set for trial approached, Denise provided
Bryan with a binder of proposed exhibits. Bryan filed an
objection to several of the proposed exhibits, including an expert
witness report prepared by Denise’s preferred expert,
Throckmorton. Denise responded to the objection that the report
should be allowed “because it is an expert witness report on the
reliability and validity of the signature found [on] the gift
letter[].” She contended, “This expert witness report establishes
that it would be impossible to determine whether or not the
signature is valid, due to the vast amount and variety of
medicine that [Anderson] was under the influence [of] at the
time.” But at trial, when Bryan’s attorney reminded the court
that there were outstanding objections that needed resolution,
Denise’s attorney stated, “I think we will agree to letting the
objections go forward. We don’t need the things that he -- I’ve
taken them out. I’m not going to be using them today.”
Accordingly, referring to the objected-to exhibits and to Denise’s
attorney’s concession, the trial court decided to “exclude those
from the record by virtue of that.”
¶5 After the conclusion of trial, the court entered written
findings of fact and conclusions of law. It determined that the
gift letter Denise presented was “not trustworthy” for several
reasons. These reasons included that the “type set of the gift
letter and the notary block are different and do not match”; that
the “expiration date on the Notary’s Stamp does not match the
date written in the Notary Block”; that there “was no reference
to a notary log kept by the Notary Public, which would have
assisted the Notary Public in his testimony”; that the “signatures
on these two exhibits are not the same”; that “both parents were
the owners of the real properties and both were alive on the date
20140382-CA 3 2016 UT App 179In re Estate of Anderson
these documents were signed; however, these documents are not
signed by both parents”; and that Tarver had “stated in his
report that it is highly probable that the signatures on these
documents are not genuine.” The court separately found that the
will was “trustworthy and was evidence of [Anderson’s] wish
that each child share equally in the distribution from his estate
and that the gift letter[ was] not consistent with his wishes as
expressed in his Last Will and Testament.” Thus, the properties
alluded to in the purported gift letter were part of Anderson’s
estate and would be administered according to Anderson’s will.
¶6 Denise filed a motion for a new trial, arguing that the
evidence at trial was insufficient to support the court’s
conclusion that the gift letter was not trustworthy. The trial court
denied the motion, asserting that “[Denise] had the burden of
proof to establish that two homes owned by the late [Anderson]
prior to his death are properly gifted to her and were not
property of [Anderson’s] estate” and that Denise had “failed to
meet that burden.” “In addition to the findings made previously,
the Court note[d] that the only expert in the case found the gift
letter[] to [be] forge[d]” and that Denise “offered no expert
testimony to the contrary.” Denise appeals.
¶7 We are tasked with deciding two issues. First, we consider
whether the trial court “improperly excluded” Throckmorton’s
expert witness report. We review the trial court’s decision
regarding the exclusion of expert witness testimony for an abuse
of discretion. Alliant Techsystems, Inc. v. Salt Lake County Board of
Equalization, 2015 UT App 288, ¶ 16, 363 P.3d 530. Second, we
consider whether the trial court erred when it denied Denise’s
motion for a new trial. We generally review this issue for an
abuse of discretion. Clayton v. Ford Motor Co., 2009 UT App 154,
¶ 5, 214 P.3d 865. But because Denise’s challenge rests on a claim
of insufficiency of the evidence, “we [will] reverse only if,
viewing the evidence in the light most favorable to the
prevailing party, the evidence is insufficient to support the
verdict.” Id.20140382-CA 4 2016 UT App 179In re Estate of Anderson
¶8 To begin, we are not persuaded that Denise preserved her
challenge to the exclusion of Throckmorton’s report. Denise
suggests that she preserved this issue when she filed her
response to Bryan’s objection to the report. But she fails to
address the subsequent agreement “to letting the objections go
forward” because she would not be using those exhibits at trial.
In her reply brief, she does assert that the “trial court clearly
ruled on the Throckmorton Report by excluding it based on the
objection and not due to the withdrawal of it from evidence.”
Yet this conclusion is the exact opposite of what the transcript
“clearly” depicts. Following Denise’s assertion that she would
not be using the report, the trial court indicated it would
“exclude those from the record by virtue of that.” Given the
order of the discussion before the trial court, “that” is clearly a
reference to Denise’s agreement not to use the report. And if this
had not been Denise’s intention, we would expect to see some
clarification made on the record or an attempt to introduce the
report as an exhibit—neither of which occurred at trial. 3
¶9 “An issue is preserved for appeal when it has been
presented to the [trial] court in such a way that the court has an
opportunity to rule on that issue.” Wolferts v. Wolferts, 2013 UT
App 235, ¶ 19, 315 P.3d 448. While the facts of this case indicate
that the issue was—briefly—presented to the trial court, the
court did not actually have “an opportunity to rule on that
issue.” See id. When Denise agreed not to use the report at trial,
she effectively withdrew her response to Bryan’s objection, and
the trial court had no need to rule on that response. Cf. State v.
McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844, aff’d, 2016 UT 3, 365
3. We further note that Denise failed to include the alleged
exclusion of Throckmorton’s report as a ground for relief in her
motion for a new trial. And in denying the motion, the trial court
explicitly found that Denise “offered no expert testimony.” This
finding supports our reading of the trial transcript.
20140382-CA 5 2016 UT App 179In re Estate of Anderson
P.3d 699 (“A claim is not preserved for appeal if a party initially
objects but later, while ‘the wheel’s still in spin,’ abandons the
objection and stipulates to the court’s intended action.” (footnote
omitted) (quoting Bob Dylan, The Times They Are A–Changin’
(Columbia Records, 1964)); Williams v. Williams, 2004 UT App
245U, para. 3 (explaining that where a party fails to request a
ruling on an issue, “there is no ruling for us to review”). Thus,
the trial court’s “exclusion” of Throckmorton’s expert witness
report was actually an acknowledgement of Denise’s decision to
withdraw the report from evidence.
¶10 But even if the trial court’s statement that it would
exclude the report “by virtue of that” could be taken as
sustaining Bryan’s objection to the report, we would still affirm
the court’s exclusion of that report. First, Denise agreed to the
trial court’s appointment of the sole expert for the case. And
second, she cannot show that admission of Throckmorton’s
expert witness report would have affected the outcome of trial.
¶11 In the course of discovery, Bryan and Denise each
disclosed an intended expert witness. Then, Bryan sought to
amend his disclosures to include another expert witness. Denise
objected, indicating that she was “on a limited budget” and that
adding another expert “would cause great disadvantage and
prejudice” to her. Acknowledging that multiple experts would
cost Denise and the estate more money, the court and both
parties agreed to hire one joint expert.
¶12 When Bryan objected to Denise’s proposed admission of
Throckmorton’s report, he argued that because “all of the parties
have already accepted James A. Tarver as the Court’s appointed
expert, the Court should not allow these pages as trial exhibits in
this matter.” Thus, if in fact the court did sustain Bryan’s
objection at trial, it did so on those grounds. The parties’
agreement to use Tarver as an expert was an implicit agreement
not to use Throckmorton or the expert witness that Bryan had
originally disclosed. We fail to see how the trial court’s decision
20140382-CA 6 2016 UT App 179In re Estate of Anderson
to enforce such an agreement can be considered an abuse of
discretion. See Kerby v. Moab Valley Healthcare, Inc., 2015 UT App
280, ¶ 24, 362 P.3d 944 (“The trial court has broad discretion to
admit or exclude evidence.” (citation and internal quotation
marks omitted)).
¶13 “However, even if the trial court abused its discretion, we
will reverse only if we find that the error is harmful.” State v.
Archuleta, 850 P.2d 1232, 1240 (Utah 1993). In the present case,
any error in excluding Throckmorton’s report was harmless.
A “harmless error is an error that is sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome
of the proceedings.” State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.
¶14 The trial court conducted a thorough review of proposed
experts before deciding that Tarver was “the best qualified to
serve as the Court’s expert in this matter.” The court’s decision
that Tarver was the best sheds light on Tarver’s perceived
credibility, and his opinions likely carried significant weight
with the court. Additionally, while Tarver was able to conclude
that “[i]t is highly probable that the questioned Anderson
signatures . . . are not genuine,” Throckmorton was unable to
form such a definite conclusion, let alone a conclusion that the
signatures were in fact genuine. Instead, Throckmorton opined
only that he “could not determine if the signatures on the
documents were genuine or forged.” The trial court indicated
that Denise had the burden of proving that the gift letter was
genuine. Given that Throckmorton’s report did little to establish
the gift letter’s authenticity, we are not convinced that admission
of the report would have changed the outcome of trial. 4
4. This is to say nothing of the other evidence—presented
independently from the expert testimony—that the trial court
used to support its ultimate conclusion that the gift letter was
not genuine. See infra ¶ 17.
20140382-CA 7 2016 UT App 179In re Estate of Anderson
¶15 We next consider the trial court’s denial of Denise’s
motion for a new trial. After the trial court had issued its written
conclusions, Denise urged the court to grant a new trial, “as
insufficient evidence was relied upon for the court to conclude
that the document is not trustworthy.” The evidence was
insufficient, Denise argued, because “[p]erfectly adequate
explanations exist for the aspects of the documents held by the
court to be deficient.” But “[t]he existence of contradictory
evidence or of conflicting inferences does not warrant
disturbing” the trial court’s findings or indicate that they are
supported by insufficient evidence. See State v. Howell, 649 P.2d
91, 97 (Utah 1982); see also Bonnie & Hyde, Inc. v. Lynch, 2013 UT
App 153, ¶ 18, 305 P.3d 196 (“We defer to the trial court’s
advantaged position to weigh that conflicting evidence.”).
¶16 For Denise to demonstrate that the trial court erred in
denying her motion for a new trial, she must show that the trial
court relied on insufficient evidence to support its conclusions of
law. “In other words, demonstrating insufficiency of the
evidence requires an appealing party to show that all the
evidence in favor of the verdict cannot support the verdict.”
Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 33, 31 P.3d
557 (citation and internal quotation marks omitted).
¶17 In its findings of fact and conclusions of law, the trial
court highlighted several pieces of evidence that supported its
ultimate conclusion that the gift letter was not genuine. See supra
¶ 5. Perhaps most telling, Tarver—as the only expert witness—
opined that Anderson’s purported signature on the gift letter
was not genuine. This opinion was bolstered by the court’s
findings that the “type set of the gift letter and the notary block
are different and do not match” and that the “expiration date on
the Notary’s Stamp does not match the date written in the
Notary Block.” The court noted that the notary public’s
testimony would have been more helpful if he had kept a notary
log. It also found persuasive that the gift letter included no
reference to or signature by Anderson’s wife, who jointly owned
20140382-CA 8 2016 UT App 179In re Estate of Anderson
the properties referenced in the gift letter as of the date of the
letter. Viewing this evidence in the light most favorable to Bryan,
the prevailing party, we cannot conclude that this evidence is
insufficient to support the trial court’s conclusion. 5 See Heslop v.
Bank of Utah, 839 P.2d 828, 839 (Utah 1992).
¶18 We are not persuaded that Denise effectively offered
Throckmorton’s expert report as an exhibit at trial due to her
agreement to jointly use a single expert witness, Tarver, and her
5. Denise also challenges the trial court’s conclusion in its denial
of her motion for a new trial that Denise “failed to marshal the
evidence in support of the Court’s findings and Order and show
how they were not sufficient to support the ruling.” Denise
correctly asserts that “there is nothing in [rule 59 of the Utah
Rules of Civil Procedure] that requires that the party marshal the
evidence in the motion [for a new trial].” And while it might
have been inappropriate for the trial court to reference a
marshaling requirement when no such requirement exists, we
are confident that this observation had no impact on the trial
court’s denial of Denise’s motion for a new trial. The court
enumerated six points that contributed to its denial of the
motion. Denise’s supposed failure to marshal the evidence was
only one of those points. Setting aside any mention of a
marshaling requirement, the trial court still ruled that (1) the
findings were sufficient to support the court’s conclusions;
(2) Denise had the burden to prove that the gift letter was
genuine; (3) Denise failed to meet that burden because “all of the
evidence presented at trial established that the gift letter[ was]
not trustworthy and [was] forge[d]”; (4) “the only expert in the
case found the gift letter[] to [be] forge[d]” and Denise “offered
no expert testimony to the contrary”; and (5) “there were
irregularities in the notarization of the gift letter[],” which
“supported the findings of the expert that the gift letter[ was]
forged.”
20140382-CA 9 2016 UT App 179In re Estate of Anderson
voluntary withdrawal of the report, and thus we cannot
conclude that the trial court excluded it—let alone erroneously.
We nevertheless determine that even if the trial court erred by
not accepting Throckmorton’s report, any such error was
harmless. Furthermore, the evidence at trial was sufficient to
support the court’s findings of fact and conclusions of law, and
the trial court therefore did not err in denying Denise’s motion
for a new trial.
¶19 Affirmed.
20140382-CA 10 2016 UT App 179