Sabour v. Koller ( 2024 )

2024 UT App 26THE UTAH COURT OF APPEALS
KAYLEEN K. SABOUR, JULIE R. MYLANDER, AND DANIEL E. KOLLER,
Appellees,
v.
MARK A. KOLLER,
Appellant.
Opinion
No. 20220699-CA
Filed February 29, 2024
First District Court, Logan Department
The Honorable Spencer D. Walsh
No. 190100295
Joseph M. Chambers and J. Brett Chambers,
Attorneys for Appellant
Stephen M. Sargent and Matthew J. Ball,
Attorneys for Appellees
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
MORTENSEN, Judge:
¶1 A family feud followed a sibling’s breach of his duties as
the trustee of a family trust. After a bench trial, the district court
granted the complaining siblings much of the relief they sought,
including removing the trustee. The now-removed trustee raises
claims of error on appeal having to do with witness disclosures,
computation of damages, and admission of certain expert
testimony. He further challenges whether sufficient evidence
existed to justify his removal and specifically challenges the
district court’s determination that he abused the discretion
granted him as trustee. We reject all claims of error, either on their
merits or on harmlessness grounds, and affirm.
Sabour v. Koller
BACKGROUND
¶2 Evan O. Koller (Grantor) established the Evan O. Koller
Revocable Living Trust (Trust) in December 2006. Grantor’s six
children were named beneficiaries.
¶3 After Grantor’s death, one of the children, Mark A. Koller,
eventually became the trustee of the Trust in early 2016 after
obtaining a declaratory judgment to that effect in district court.
This court subsequently affirmed that decision. See In re Evan O.
Koller Revocable Living Trust, 2018 UT App 26, ¶¶ 6–8, 31, 414 P.3d
1099. Three of the beneficiary children, Kayleen K. Sabour, Julie
R. Mylander, and Daniel E. Koller (collectively, the Appellees)
subsequently sued, alleging that Mark breached his duties as
trustee in a variety of ways. 1
¶4 As relevant here, the Trust provided that its property was
to be distributed as follows: (1) the Trust’s farmland could not “be
sold and divided among the beneficiaries” but was “to be held in
trust and maintained for the benefit of Grantor’s children and for
future generations, unless all [the] beneficiaries unanimously
[agreed], in writing, to sell or divide any part or all of the
property” and (2) the remainder of the trust estate (non-farmland
assets) was to be divided equally among the six beneficiaries.
Among other powers, the Trust granted the trustee discretion to
hold and operate any property in the Trust and to withhold from
distribution property that was “subject to conflicting claims.”
¶5 According to the Appellees’ complaint, the Trust held
significant assets, including (1) approximately 5,300 acres of
farmland (the Farm); (2) 52% of the shares of the Koller
Corporation, which owned and operated equipment used on the
Farm; (3) residential lots in Idaho and a commercial lot in Utah
(the Lots); and (4) “tangible and intangible personal property.”
1. We refer to the parties by their given names because some share
a common surname.
20220699-CA 2 2024 UT App 26Sabour v. Koller
The other 48% of the Koller Corporation shares was held by the
six beneficiaries—8% each. The Appellees maintained that,
following the passage of a resolution by the officers, the Koller
Corporation was to be dissolved in 2016 but Mark, its president,
did not follow through on the action.
¶6 The Appellees identified the following alleged breaches of
duty on the part of Mark: (1) failing to distribute to the
beneficiaries (a) Grantor’s personal effects, (b) the Trust’s share of
the Koller Corporation (which Mark had neglected to dissolve),
(c) the Lots, (d) lease payments, and (e) crop insurance payments;
(2) failing to rent Grantor’s house; (3) “failing to provide
complete, accurate or sufficient annual accountings”; (4) failing to
“properly and prudently manage, sell and/or operate assets of the
Trust including, but not limited to the Farm, the Lots” and
Grantor’s house; (5) failing “to efficiently retire or eliminate debts
and liabilities of the Trust”; and (6) paying himself “excessive and
unnecessary compensation” for menial tasks.
¶7 The Appellees asserted eight claims for relief. For the first
three claims—breach of fiduciary duty, violation of section 75-7-
801 of the Utah Code, 2 and breach of the trust agreement—they
sought monetary damages. In the fourth claim, they sought the
removal of Mark as trustee. The fifth claim was a request for a full
accounting of the Trust’s assets and activities. For the sixth claim,
they sought rescission of all transactions involving alleged self-
dealing by Mark and restoration to the Trust of all money to
which Mark was not entitled. In their seventh claim, the Appellees
asked for an injunction compelling Mark to perform his duties as
trustee and barring him from committing a further breach of trust
and from paying legal expenses from assets of the Trust. And in
2. “Upon acceptance of a trusteeship, the trustee shall administer
the trust expeditiously and in good faith, in accordance with its
terms and purposes and the interests of the beneficiaries, and in
accordance with [the Utah Uniform Trust Code].” Utah Code § 75-
7-801.
20220699-CA 3 2024 UT App 26Sabour v. Koller
their final and eighth claim, they sought an award of reasonable
attorney fees.
¶8 In their rule 26(a) initial disclosures, the Appellees did not
include Mark’s name as a witness to be called. However, Mark
was listed in the same document on a list of individuals “likely to
have discoverable information supporting [the Appellees’]
claims.” The Appellees disclosed themselves as the only witnesses
who would testify. And even though they were represented by
counsel, the Appellees’ summaries of their expected testimony
were identical (excepting name and pronoun) and spartan:
[Name] is expected to testify that (a) Mark A. Koller
failed to administer the Trust prudently,
expeditiously and impartially, and (b) [she or he]
has been damaged by Mark A. Koller’s failures as
trustee.
The Appellees also included a one-page listing of eight vague
categories purporting to compute the monetary damages they
had suffered.
¶9 Mark deposed the Appellees.
¶10 The Appellees retained and called at trial two expert
witnesses: Expert 1, who addressed the fees Mark took as trustee,
and Expert 2, who opined on the rental value of Grantor’s home.
¶11 Mark subsequently filed four motions for partial summary
judgment and three motions in limine.
¶12 Mark’s first motion requested summary judgment because
the Appellees had allegedly “failed to set forth both the fact of
damages and a method of their calculations that was apparent in
the initial disclosures.” The court largely denied the motion,
ruling that any inadequacy in the damages calculation was either
harmless or for good cause.
20220699-CA 4 2024 UT App 26Sabour v. Koller
¶13 The second motion sought summary judgment on the basis
that some of the Lots were farmland, which, under the terms of
the Trust, could not be sold without the unanimous consent of the
beneficiaries. The court denied this motion because it concluded
there was a dispute of material fact as to the nature of the Lots in
question.
¶14 Mark’s third motion asked the district court to rule that the
trust agreement gave Mark discretion regarding the retention of a
gun collection, coin collection, shares of the Koller Corporation,
the Lots, and various sources of revenue. The district court denied
the motion after determining that a reasonable fact finder could
conclude that Mark had “abused his discretion [with] respect to
[the] distribution of the Trust assets by obtaining more than
$150,000 for himself using Trust assets while only distributing
$2,800 to the beneficiaries since becoming” trustee.
¶15 The fourth motion sought a determination that Mark could
not be compelled to dissolve the Koller Corporation because only
the company’s officers and not the shareholders had approved the
dissolution. The district court granted this motion.
¶16 The three motions in limine asked the court to exclude the
testimony of certain witnesses. Two of these motions concerned
the expert witnesses. With respect to Expert 1, Mark argued that
the expert had failed to disclose all the data he relied on and had
opined in his report on topics “clearly outside his expertise and
field.” The court denied the motion, ruling that Expert 1 did reveal
the data he used and that Mark was free to raise an objection
during Expert 1’s trial testimony if Mark believed Expert 1 was
“exceeding the scope of his expertise” or there was not “sufficient
foundation . . . for him to testify about certain topics.” Regarding
Expert 2, Mark argued that the expert’s appraisals were unreliable
and did not comply with professional standards. The court denied
the motion, stating that it was “in a position to either accept, reject,
or partially accept the testimony” and that Mark would “have an
20220699-CA 5 2024 UT App 26Sabour v. Koller
opportunity to cross-examine,” “provide rebuttal testimony,” and
“attack the credibility of that testimony.”
¶17 In the third motion in limine, Mark asked the court, among
other requests, to exclude the Appellees from “providing any
opinions at trial that they could and should have disclosed,”
arguing that their “initial disclosures were grossly inadequate and
vague to the point of being nondisclosures.” More specifically,
Mark stated,
Rule 26 requires much more than simply parroting
conclusory complaint allegations. In no way did
[the Appellees] disclose how they had been
allegedly harmed. They did not disclose how they
would testify the Trust was administered
imprudently. They did not disclose how they would
testify it was not administered expeditiously. They
did not disclose how they would testify [Mark] had
acted partially.
The district court denied this aspect of the motion, saying,
[Mark] did have an opportunity to depose all the
[Appellees] in this case well in advance of trial and
question them about these alleged failures and
alleged damages that . . . they claim they have
suffered.
The Court finds that while the disclosures are brief
they are in fact a summary of [the Appellees’]
expected testimony.
The Court finds that this summary, in addition to
[Mark] having had the opportunity to depose the
[Appellees], has adequately prepared [Mark] for
[the Appellees’] anticipated testimony.
20220699-CA 6 2024 UT App 26Sabour v. Koller
¶18 After a four-day bench trial, the district court ruled in favor
of the Appellees. Specifically, the court ruled the Appellees were
“entitled to judgment in their favor” with respect to their first
claim (breach of fiduciary duty), second claim (violation of section
75-7-801), and third claim (breach of the trust agreement). The
court did not award any damages for these three claims.
¶19 The court also granted the Appellees’ fourth claim, namely,
the removal of Mark as trustee.
¶20 On the fifth claim (accounting), the court ordered Mark, “at
his own expense,” to “prepare and provide to all beneficiaries of
the Trust a complete and accurate accounting of all financial
transactions entered into by [Mark] with respect to the Trust
during his trusteeship.”
¶21 On the sixth claim for relief (rescission and restoration), the
court ruled that while the Appellees were entitled to judgment in
their favor, they had “failed to carry their burden of proving
damages, [so] no money judgment [was] entered for [them] on
this claim.”
¶22 Having removed Mark as trustee, the court considered the
Appellees’ seventh claim for relief—an injunction requiring Mark
to fulfill his trustee duties—moot. However, the court did enjoin
and order the successor trustee to
(a) expeditiously distribute the firearms, coins,
vehicles and Koller Corporation shares owned by
the Trust to the beneficiaries of the Trust, and
(b) after assessing the Trust’s financial status and
ensuring all outstanding liabilities of the Trust have
been satisfied, . . . distribute (i) all but $20,000.00 of
the Trust’s cash, and (ii) the [Lots].
¶23 On the eighth claim for relief (attorney fees), the court
ruled in the Appellees’ favor, determining that Mark must pay
20220699-CA 7 2024 UT App 26Sabour v. Koller
about $68,500 from his own pocket. In addition, because Mark
“could not have believed in good faith that it was reasonable or
appropriate for him to (a) charge the Trust at the rate of $60.00 per
hour for such menial work as lawn mowing and hauling garbage
or (b) refuse to distribute” Grantor’s personal property, the court
ordered Mark to reimburse the Trust around $88,000 for the cost
of his defense. 3
¶24 Mark appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 Mark raises five issues on appeal. First, he asserts that the
district court abused its discretion in determining that the
Appellees’ witness disclosures were sufficient and allowing the
Appellees to testify in their case-in-chief. Second, Mark asserts
that the district court abused its discretion in allowing the
Appellees’ “claims for tools and equipment, personal property,
and farm and hunting lease revenue even though there were
inadequate damage computations.” Third, he contends that the
court abused its discretion in not excluding the Appellees’
experts. These first three issues share the same standard of review.
“While interpretations of the Utah Rules of Civil Procedure are
questions of law reviewed for correctness, we grant district courts
a great deal of deference in matters of discovery and review
discovery orders for abuse of discretion.” RJW Media Inc. v. Heath,
2017 UT App 34, ¶ 18, 392 P.3d 956 (cleaned up).
¶26 Mark next claims that because the district court
“determined Appellees did not meet their burden of proof to
3. To be clear, this amount was not damages. Instead, it was the
amount the court determined that Mark owed the Trust for
defending the actions Mark had taken in bad faith. Apart from the
court’s determination that Mark breached his fiduciary duties,
this specific ruling is not challenged on appeal.
20220699-CA 8 2024 UT App 26Sabour v. Koller
establish damages,” it erred in concluding that he breached his
fiduciary duties. Because Mark claims that the district court erred
in concluding that a breach of fiduciary duty can exist in the
absence of damages, this issue presents a question of law, which
we review for correctness, granting no deference to the lower
court’s decision. Smith v. Robinson, 2018 UT 30, ¶ 8, 422 P.3d 863(“The question of whether a duty exists is a question of law. We
review questions of law under a correctness standard.” (cleaned
up)).
¶27 Lastly, Mark argues that the district court erred in
determining that he “abused the discretion delegated to him in
the trust agreement.” “Mixed questions arise when a district court
must apply a particular rule of law to a particular set of facts.”
Utah Stream Access Coal. v. VR Acquisitions, LLC, 2023 UT 9, ¶ 51,
531 P.3d 195 (cleaned up). “Law-like mixed questions are
reviewed de novo, while fact-like mixed questions are reviewed
deferentially.” Sawyer v. Department of Workforce Services, 2015 UT
33, ¶ 11, 345 P.3d 1253.
ANALYSIS
I. Witness Disclosures
¶28 Mark first argues that the district court “erred in denying
[his] motion to exclude [the] Appellees from testifying for
inadequately disclosing their expected, summarized case-in-chief
testimony.” The Appellees urge us to conclude that their
disclosures, even if inadequate, were harmless because Mark
“knew everything a fuller disclosure would have provided.”
¶29 We agree with Mark that the Appellees’ summaries of their
expected testimony fell short of the requirements set by rule 26(a)
of the Utah Rules of Civil Procedure. But having made this
determination, we nevertheless conclude that the deficiencies
were harmless. We will address the inadequacy of the disclosures
20220699-CA 9 2024 UT App 26Sabour v. Koller
and then consider the prejudice Mark suffered because of that
shortcoming.
A. Inadequate Disclosures
¶30 Rule 26(a) requires a litigant to identify “each fact witness
the party may call in its case-in-chief and, except for an adverse
party, a summary of the expected testimony.” Utah R. Civ. P.
26(a)(1)(A)(ii). “This rule is designed to give the other side basic
information concerning the subjects about which the witness is
expected to testify at trial, so that the other side may determine
the witness’s relative importance in the case.” Salo v. Tyler, 2018
UT 7, ¶ 55, 417 P.3d 581 (cleaned up).
¶31 Concerning the summary requirement, the advisory
committee’s note states,
[T]he summary of the witness’s expected testimony
should be just that—a summary. The rule does not
require prefiled testimony or detailed descriptions
of everything a witness might say at trial. On the
other hand, it requires more than the broad, conclusory
statements that often were made under the prior
version of Rule 26(a)(1) (e.g., “The witness will
testify about the events in question” or “The witness
will testify on causation.”). The intent of this
requirement is to give the other side basic
information concerning the subjects about which
the witness is expected to testify at trial, so that the
other side may determine the witness’s relative
importance in the case, whether the witness should
be interviewed or deposed, and whether additional
documents or information concerning the witness
should be sought.
Utah R. Civ. P. 26 advisory committee notes to 2011 amendment
(emphasis added). See generally RJW Media Inc. v. Heath, 2017 UT
20220699-CA 10 2024 UT App 26Sabour v. Koller
App 34, ¶ 22, 392 P.3d 956 (“[T]he advisory committee notes to
rule 26 . . . offer persuasive, but not binding, interpretative
guidance for the rule.”). In RJW Media, we expounded on this
point:
The requirement to provide a summary of expected
testimony is not merely a matter of form. Disclosure
of specific facts . . . is required so that parties can
make better informed choices about the discovery
they want to undertake or, just as important, what
discovery they want to forgo. More complete
disclosures serve the beneficial purpose of
sometimes giving the opposing party the confidence
to not engage in further discovery. But this is only
true if the potential for surprise is reduced by at
least minimum compliance with the rule 26
disclosure requirements.
2017 UT App 34, ¶ 25. 4
¶32 The summary of expected testimony here did not meet this
threshold. The Appellees simply provided “broad, conclusory
statements,” see Utah R. Civ. P. 26 advisory committee notes to
2011 amendment, that Mark “failed to administer the Trust
prudently, expeditiously and impartially” and that this alleged
failure damaged each of the Appellees. In no way did they
attempt “to give the other side basic information concerning the
subjects about which the [witnesses were] expected to testify at
trial,” id.; see also RJW Media, 2017 UT App 34, ¶ 30 (“To minimize
4. While this particular analysis in RJW Media was made in the
context of non-retained expert disclosures, it is equally applicable
to witness disclosure in general. See Hansen v. Kurry Jensen Props.
LLC, 2021 UT App 54, ¶ 48, 493 P.3d 1131 (stating that the
“substance of [this] warning” concerning “the need for proper
and complete disclosures . . . is equally salient for initial
disclosures”).
20220699-CA 11 2024 UT App 26Sabour v. Koller
[the risk of discovery sanctions], disclosing parties should be
liberally forthcoming rather than minimally compliant and risk
the possible consequences of testimony exclusion.”).
¶33 Accordingly, we conclude that the district court abused its
discretion in finding that “while the disclosures [were] brief,”
they offered an adequate “summary of [the Appellees’] expected
testimony.” Calling them “brief” is an understatement. Instead,
they were so broad and conclusory as to verge on being useless.
B. Harmfulness
¶34 Even though the summaries of expected testimony fell far
short of minimal expectations, our inquiry doesn’t end there. Rule
61 of the Utah Rules of Civil Procedure provides,
No error in either the admission or the exclusion of
evidence, and no error or defect in any ruling or
order or in anything done or omitted by the court or
by any of the parties, is ground for . . . disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding
must disregard any error or defect in the proceeding
which does not affect the substantial rights of the
parties.
Thus, “even if the trial court exceeded its discretion [in admitting
testimony unsupported by adequate disclosures], an appellant
has the burden to show that the error was substantial and
prejudicial, meaning that the appellant was deprived in some
manner of a full and fair consideration of the disputed issues by
the trier of fact.” RJW Media, 2017 UT App 34, ¶ 33 (cleaned up).
¶35 Here, we detect no harm proceeding from the Appellees’
inadequate disclosures. The deficiencies of the expected
testimony summaries were remedied by the fact that Mark
20220699-CA 12 2024 UT App 26Sabour v. Koller
deposed each witness and thus was able to gain sufficient
knowledge of their testimony to proceed with his defense at trial
and address their evidence. Had Mark forgone deposing the
Appellees, our conclusion on this point would have likely tilted
the other way. Indeed, we can easily envision a scenario in which
a party in Mark’s position—namely, having received inadequate,
broad, and conclusory summaries—might have concluded that
the expense of deposing witnesses in order to learn even the basic
facts about which they might testify at trial was unnecessary.
However, Mark did take depositions, and the general discovery
purpose of the rules was served, even if the resource-saving
purpose of rule 26 was not. But we reiterate that the disclosures
here were inadequate and that reversal might have resulted had
Mark chosen not to depose the Appellees. These conclusions
should serve “as a forewarning to all litigants who are tempted to
play fast and loose with our discovery rules.” Hansen v. Kurry
Jensen Props. LLC, 2021 UT App 54, ¶ 49, 493 P.3d 1131. When the
Appellees provided inadequate summaries, they “risked it all,”
and the fact that their “gambit did not result in disaster should
offer no solace or refuge to future parties who undertake the same
risk.” Id.; see also RJW Media, 2017 UT App 34, ¶ 30.
¶36 We observe that the district court, while not explicitly
using the words “prejudice” or “harm,” implied that Mark
suffered no harm from the inadequate disclosures because he
“had the opportunity to depose” the Appellees. To be clear, the
“opportunity to depose” is not good enough to make up for the
inadequate disclosures here. Rather—at least on the facts of this
case—harmlessness turns on the fact that Mark actually deposed the
witnesses.
¶37 Mark identifies the following trial testimony offered by the
Appellees as being inadequately disclosed:
1) Julie testified that Mark spent only three hours with her to
learn the Trust’s accounting system and never accepted her
offers to help him.
20220699-CA 13 2024 UT App 26Sabour v. Koller
2) Julie testified that Mark made accounting errors and that
his reports were not an accurate representation of the
Trust’s assets and liabilities.
3) Julie testified that she offered to sell Mark her share of the
Farm, but he declined the offer.
4) Kayleen testified that the Trust was offered $6,0000,000 for
the Farm and that Mark allegedly failed to relay that offer
to the beneficiaries.
5) Kayleen testified that she was “induced” to sign a contract
for a land conservation program with the federal
government.
6) Kayleen testified that Mark said he could hold assets for as
long as he deemed necessary.
7) Kayleen testified that Mark said he was controlling the
Koller Corporation to prevent the sale of its equipment in
case farming operations resumed.
8) Kayleen testified that Mark said he was not distributing the
Trust property because he wanted to run the Farm himself.
9) Daniel testified that Mark told him he considered the
equipment “farmland” and he intended to farm the land, a
plan Daniel regarded as “self-dealing.”
10) Daniel testified that Mark was paying his personal credit
card bills with Trust money.
11) Daniel testified that Mark had not fulfilled his fiduciary
duties as trustee.
¶38 Significantly, Mark makes no effort whatsoever to identify
where the deposition testimony fell short in addressing the
testimony he identifies in the above list. He merely points to the
disclosure summaries as not having identified the specific
testimony. But on appeal, it’s not enough for Mark to point out
that the disclosure summaries fell short of expectations. After all,
there is no question that the summaries were woefully
inadequate. But even if the trial testimony was unsupported by
adequate disclosures summarizing expected testimony, Mark also
needs to show that he was harmed by this inadequacy. See RJW
20220699-CA 14 2024 UT App 26Sabour v. Koller
Media, 2017 UT App 34, ¶ 33. Moreover, it’s not enough for him to
make a bald assertion of the harm; he also bears “the burden of
demonstrating an error was prejudicial—that there is a reasonable
likelihood that the error affected the outcome of the proceedings.”
Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (emphasis
added) (cleaned up), cert. denied, 90 P.3d 1041 (Utah 2004). In
addition, this burden means that it’s “not this court’s duty to
comb through the record in search of a plausible argument in
support” of Mark’s position. See Norton v. Hess, 2016 UT App 108,
¶ 10, 374 P.3d 49; see also Tanner v. Carter, 2001 UT 18, ¶ 19, 20 P.3d
332 (“In particular, appellate advocates must never assume that it
is this court’s burden to comb the record for evidence supporting
poorly framed arguments. We have stated this principle on
multiple occasions.”). Thus, Mark has not carried his burden of
demonstrating harm largely because he has not addressed how,
despite having deposed each of the Appellees, their trial
testimony took him by surprise.
¶39 We observe that Mark has not provided the complete
depositions of the Appellees in the record. Instead, he has
included only a small sampling—eleven pages of Julie’s
deposition, seventeen pages of Kayleen’s deposition, and nine
pages of Daniel’s deposition—of the hundreds of pages of
deposition testimony offered by each of the Appellees. But it was
his burden to show that he was prejudiced. By failing to show us
where the deposition testimony fell short of that offered at trial,
Mark has also failed to carry his burden of persuasion on appeal
concerning prejudice. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 13,
391 P.3d 196 (“An appellant that fails to devote adequate attention
to an issue is almost certainly going to fail to meet its burden of
persuasion.”). 5
5. In fact, the select portions of the deposition testimony Mark has
provided strongly suggest that the Appellees addressed the very
topics Mark claims took him by surprise at trial. For example, in
(continued…)
20220699-CA 15 2024 UT App 26Sabour v. Koller
¶40 In sum, even though the court erred in determining that
the Appellees’ disclosures of their expected testimony were
adequate, we conclude that Mark has failed to carry his burden of
showing how he was harmed in light of the fact that he actually
deposed the complained-of witnesses on the subjects discussed at
trial. Accordingly, Mark’s first claim of error fails.
II. Computation of Damages
¶41 Mark next complains that the district court abused its
discretion in not excluding “claims for tools and equipment,
personal property, and farm and hunting lease revenue” even
though the court determined the disclosure of damages
computations was inadequate. The court determined that while
the disclosures were inadequate, any inadequacy was harmless
because Mark’s ability to build a defense was not impaired since
he was “best positioned” to know the values associated with the
alleged damages.
¶42 We agree with the district court that the inadequate
disclosure of damages was harmless, but we do so for a different
her deposition, Julie spoke of Mark’s dismissive attitude toward
her: “I had a phone conversation with Mark . . . when he told me
to just go away and why should I care and I didn’t need the
money.· And then he went on to add that [we siblings] are older
than he is, and we’re going to die before he does, so it’s all going
to be his anyway, so why should I care.” Julie’s deposition also
touched on accounting errors when she asserted that Mark had
“done nothing to satisfy” a liability on the Trust. Julie further
addressed Mark’s alleged breach of fiduciary duty. Kayleen’s
deposition covered issues related to the federal land conservation
program, specific instances of the Trust’s assets that allegedly
should have been distributed by Mark, and allegations of Mark
not fulfilling his fiduciary duties. Daniel’s deposition contained
testimony about money owed to the Trust that Mark never
collected.
20220699-CA 16 2024 UT App 26Sabour v. Koller
reason. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“It is
well settled that an appellate court may affirm the judgment
appealed from if it is sustainable on any legal ground or theory
apparent on the record, even though such ground or theory
differs from that stated by the trial court to be the basis of its ruling
or action, and this is true even though such ground or theory is
not urged or argued on appeal by [the] appellee, was not raised
in the lower court, and was not considered or passed on by the
lower court.” (cleaned up)).
¶43 Here, the specific computation of damages was
harmless because it was unnecessary. Rule 26 of the Utah Rules
of Civil Procedure requires a party to provide “a computation of
any damages claimed and a copy of all discoverable documents
or evidentiary material on which such computation is based,
including materials about the nature and extent of injuries
suffered.” See Utah R. Civ. P. 26(a)(1)(C). Notably, the
relief sought by the Appellees and awarded by the court,
insofar as that relief pertained to tools, equipment, personal
property, and lease revenue, was injunctive—namely, the
distribution to the beneficiaries of the property. Rather than
monetary damages, the beneficiaries explicitly sought “an
accounting of the Trust’s assets,” “an injunction requiring [Mark]
to distribute the Trust’s ‘tools and equipment’ assets,” and
the distribution of “Grantor’s personal property to the
Trust’s beneficiaries as the Trust Agreement directs.”
Concerning the farm and hunting lease revenue, the Appellees
sought “an injunctive order directing [Mark] to distribute those
funds, rather than an award of damages in a specific amount.”
The Appellees’ request for injunctive relief was thus not waived
by their failure to include adequate computations because
injunctive relief is obviously not capable of the computation
required by rule 26. Cf. Scott v. City of Phoenix, No. CV-09-0875,
2011 WL 1085992, at *4 (D. Ariz. Mar. 24, 2011) (stating that
equitable remedies such as “declaratory judgment, injunctive
relief, and nominal damages . . . are not capable of the
20220699-CA 17 2024 UT App 26Sabour v. Koller
computation required for the [federal rule 26] initial disclosure”
(cleaned up)).
¶44 Thus, in granting this requested relief, the specific value of
the property in question here was a non-issue. In other words,
there was no error in the court’s order because no computation of
damages was needed to effect the relief requested. Accordingly,
Mark’s second claim of error fails.
III. Admissibility of Expert Testimony
¶45 Mark next argues that the district court abused its
discretion in admitting the testimony of Expert 1 and Expert 2.
A. Expert 1
¶46 Mark asserts that the testimony of Expert 1, who opined on
the rate of pay Mark should have received for completing work
done on the Trust’s behalf, should have been excluded. Expert 1
had over twenty years of experience directing “financial fiduciary
services for numerous individuals, estates, trusts and
conservatorships” and working “with trustees, attorneys, the
Veterans Administration, and individuals to provide budgeting,
bill paying, reporting, estate liquidation, trust management, and
tax planning services.” Of note here, Expert 1 stated that Mark
should have received $20 an hour for menial labor, $25 an hour
for clerical work, and $35 an hour for semi-skilled labor
completed on behalf of the Trust. Expert 1 arrived at the rate for
semi-skilled labor by doing “some research on the internet”
because he did not have the professional experience of paying
“someone to do repair [work on] farm equipment.” The other
rates were based on his experience of paying workers for those
categories of labor. Relying on rule 702(b) of the Utah Rules of
Evidence, Mark now complains that the testimony based on
internet research should have been excluded because Expert 1
failed “to disclose all the information and data he relied upon,”
20220699-CA 18 2024 UT App 26Sabour v. Koller
preventing Mark “from testing the underlying information and
data and ensuring it was reliably applied to the facts.”
¶47 Mark’s complaint about Expert 1 fails. Even if admitting
Expert 1’s testimony about the rate for semi-skilled labor to repair
farm equipment was in error, Mark has not shown how he was
harmed by its admission, as he is required to do. See RJW Media
Inc. v. Heath, 2017 UT App 34, ¶ 33, 392 P.3d 956; see also Utah R.
Civ. P. 61.
¶48 Indeed, it appears likely that the court did not rely on any
of Expert 1’s hourly rate estimates because the court explicitly
stated that the Appellees had “failed to meet their burden of proof
in proving a reasonable estimate of damages” related to Mark’s
breach. Instead of relying on Expert 1’s testimony for a damages
computation, the court used it—insofar as it used it at all—to
support the conclusion that Mark breached his fiduciary duties by
paying himself “excessive compensation from the assets of the
Trust.” The hourly rate for semi-skilled labor to repair farm
equipment provided by Expert 1 was unnecessary for the court to
reach this largely self-evident determination. The court concluded
that Mark violated his fiduciary duties by paying himself $60 per
hour to complete menial tasks, such as shoveling snow, mowing
grass, and taking out garbage. It likely required no expert
testimony to reach this conclusion, but for this determination, the
court could rely on Expert 1’s testimony that the market rate for
menial labor was $20 per hour. Accordingly, the record supports
the conclusion that Mark paid himself three times the reasonable
rate for these services. Moreover, the conclusion that Mark
breached his fiduciary duty was based not only on paying himself
excessive compensation but also on not putting the Trust’s assets
to good use by, for example, renting the house. Given these
considerations, we conclude that Mark has failed to demonstrate
how he was harmed by the court’s failure to exclude the discrete
part of Expert 1’s testimony that addressed the rate for semi-
skilled labor to repair farm equipment.
20220699-CA 19 2024 UT App 26Sabour v. Koller
B. Expert 2
¶49 Mark asserts that the district court erred in relying on
Expert 2’s testimony on lease values because his testimony did not
comply with certain professional standards and was thus
unreliable. But the district court explicitly stated that it “did not
give weight” to Expert 2’s estimates of rental values. The
admissibility of Expert 2’s testimony is thus a non-issue. Instead
of relying on the disputed testimony, the court determined that
Mark breached his fiduciary duty in refusing “to put to economic
use” the Trust’s property by failing to rent out the properties. It
was not Expert 2’s testimony that supported this conclusion.
Instead, it was the self-proving act of not renting the property at
all that deprived the Trust (and beneficiaries) of the resulting
income. As the court determined, there “was no good reason to
have a 9,000 square foot house sit unproductive for 6 years.”
Simply put, the court did not need to rely on any expert testimony
to conclude that refusing to even attempt to rent property
constituted a breach of fiduciary duty as trustee. Accordingly, as
with the admission of the complained-of portion of Expert 1’s
testimony, any error in admitting Expert 2’s testimony was
harmless.
IV. Removal of Trustee
¶50 Mark next argues that because the district court
determined that the Appellees failed to carry their burden in
proving monetary damages, it erred in removing him as trustee
for breach of fiduciary duty. He asserts that “it is well established
that damages are a necessary element to a breach of fiduciary duty
claim” and then goes on to cite caselaw in support of this
proposition. See Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36,
¶ 44, 424 P.3d 897; Espenschied Transp. Corp. v. Fleetwood Services,
Inc., 2018 UT 32, ¶ 15 n.2, 422 P.3d 829; Gables at Sterling Village
Homeowners Ass’n v. Castlewood-Sterling Village I, LLC, 2018 UT 04,
¶ 52, 417 P.3d 95. But Mark is simply wrong. All the cases he cites
20220699-CA 20 2024 UT App 26Sabour v. Koller
involve common-law tort claims for breach of fiduciary duty, and
that’s not what we have here.
¶51 The removal of a trustee for breach of fiduciary duty is
driven by statute in Utah, and Mark does not attempt to address
this framework. Nowhere do our statutes require a showing of
monetary damages to remove a trustee. See Utah Code § 75-7-
706(2)(a) (“The court may remove a trustee if . . . the trustee has
committed a serious breach of trust . . . .”). As the Appellees
rightly point out, a “trustee could obviously commit a serious
breach of trust without necessarily inflicting any economic harm
or monetary damage,” such as by failing to make an annual report
or keep adequate records. See id. § 75-7-811(3) (“A trustee shall
send to the qualified beneficiaries who request it, at least annually
and at the termination of the trust, a report of the trust property,
liabilities, receipts, and disbursements, including the amount of
the trustee’s compensation or a fee schedule or other writing
showing how the trustee’s compensation was determined, a
listing of the trust assets and, if feasible, their respective market
values.”); id. § 75-7-808(1) (“A trustee shall keep adequate records
of the administration of the trust.”).
¶52 Accordingly, the district court did not abuse its discretion
in removing Mark as trustee even though it determined that the
Appellees had failed to prove monetary damages.
V. Abuse of Discretion as Trustee
¶53 Mark argues that it was within his discretion under the
terms of the Trust to withhold distributions that would jeopardize
the Farm, which could not be sold absent the consent of all six
beneficiaries. From this premise, he claims that the district court
erred in determining that he abused his discretion as trustee.
¶54 Mark is mistaken about what the Trust required, which
was that the Farm retain its character as farmland. The Trust
explicitly stated that the Farm was “to be held in trust and
20220699-CA 21 2024 UT App 26Sabour v. Koller
maintained.” From this, Mark argues that it was “within his
discretion” to retain funds to “operate a 5,000 acre farm.” But the
Trust in no way required that the land actually be farmed or
granted the trustee discretion to operate a farm on the land in
perpetuity such that all the Trust’s assets could be retained for
that contingency. Thus, the court did not err in its determination
that Mark’s nearly absolute refusal to make distributions of the
Trust’s assets marked an abuse of discretion under the terms of
the Trust.
CONCLUSION
¶55 Mark’s claims of error on the part of the district court fail
in their entirety. First, he was not prejudiced by the admission of
the Appellees’ testimony, even though their testimony was not
properly disclosed. Second, no computation of damages for tools,
equipment, personal property, and lease revenue was required
because the Appellees did not seek monetary damages for those
categories. Third, any infirmity with the admission of the experts’
testimony was harmless because the district court did not rely on
such testimony. Fourth, the removal of Mark as trustee did not
require a showing of damages. And fifth, we detect no error in the
district court’s determination that Mark abused his discretion as
trustee when he refused to distribute nearly all the Trust’s assets. 6
¶56 Affirmed.
6. Because Mark has not prevailed on any issue raised in this
appeal, he is not entitled to attorney fees.
20220699-CA 22 2024 UT App 26