In re Evan O. Koller

2018 UT App 27THE UTAH COURT OF APPEALS
IN THE MATTER OF EVAN O. KOLLER
KATHRYN PROUNIS,
Appellant,
v.
MARK KOLLER,
Appellee.
Opinion
No. 20160109-CA
Filed February 15, 2018
First District Court, Logan Department
The Honorable Brandon J. Maynard
No. 073100106
Matthew N. Evans and Matthew M. Cannon,
Attorneys for Appellant
James K. Tracy, Robert S. Tippett, James C.
Dunkelberger, and Trevor M. Crowley, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
ORME, Judge:
¶1 After several years of litigating with her siblings,
Appellant Kathryn Prounis 1 successfully moved to have herself
1. Two of Kathryn’s siblings share their father’s last name. Thus,
in the interests of clarity and treating the parties alike,
throughout this opinion we refer to Kathryn, her siblings, and
her father by their first names, with no disrespect intended by
the apparent informality.
In re Evan O. Koller
appointed as permanent guardian of her ailing father, Evan O.
Koller, and permanent co-conservator of his considerable estate.
Upon his death, Kathryn moved for the first time to charge her
father’s estate for her services. Her siblings opposed her motion,
arguing, among other things, that she was equitably estopped
from claiming compensation due to her many representations
made during and after her father’s life that she would serve “on
a pro bono basis.” The district court agreed with Kathryn’s
siblings and denied the motion. Kathryn now appeals that
decision. We affirm. 2
BACKGROUND
¶2 This family dispute blossomed into litigation in October
2007, when Kathryn filed an objection to her siblings’ petition to
appoint a guardian and conservator for Evan. Altogether,
Kathryn has five siblings: her three sisters are LuAnn, Kayleen,
and Julie; her two brothers are Dan and Appellee Mark Koller.
¶3 Kathryn reached an agreement with her siblings in June
2008, stipulating to the appointment of both a professional
guardian and professional conservator on the condition that she
and Dan be appointed co-conservators. The district court then
found Evan to be an incapacitated person and appointed
Eldercare Consult, Inc. and Stagg Eldercare Services as guardian
and conservator, respectively. Both companies resigned from
their appointments within a year, however, citing excessive
interference from the co-conservators.
¶4 Following the fiduciary companies’ resignations, Julie and
Kayleen petitioned the court to appoint an emergency temporary
guardian for Evan. In their petition, they argued that the
2. A separate appeal involving many of these same parties has
been resolved by the court in a separate opinion issued today.
See In re Evan O. Koller Revocable Living Trust, 2018 UT App 26.
20160109-CA 2 2018 UT App 27In re Evan O. Koller
guardian should be a professional “because there is presently no
one with authority to provide health care directions to the in-
home care providers or to make decisions regarding health and
medical care.” They further alleged that the in-home providers
were “receiving conflicting directions from various children of
[Evan].” Kathryn objected to her sisters’ petition on the ground
that the court “intended for the Co-Conservators to assume
certain of the responsibilities that were performed by Evan
Koller’s previous Guardian.” She further represented that, until
the court reached a decision on the matter, she would be willing
to serve as an interim guardian “indefinitely and without
compensation.”
¶5 The district court sided in this instance with Kathryn,
appointing her as temporary guardian as well as temporary co-
conservator with Dan. Soon after, in a motion joined by Dan,
Kathryn urged the court to set aside the siblings’ stipulation and
make her appointments permanent, representing that she had
“been diligently performing [her] duties . . . for no
compensation.” 3
¶6 The court held a hearing in August 2009 on the issue of
appointing a permanent guardian and conservator. At the
hearing, Julie and Kayleen once again argued for the
appointment of a professional fiduciary, maintaining that the
appointment was necessary to ensure the siblings’ in-fighting
did not interfere with their father’s care. Kathryn responded by
arguing that a professional fiduciary would be an unjustifiable
3. In addition to this statement, Kathryn made several similar
representations to the court prior to the hearing on her motion to
be appointed permanent guardian and co-conservator. For
instance, in April 2009, Kathryn filed a report on her activities as
temporary guardian and co-conservator, wherein she
highlighted the fact that she was saving Evan’s estate a
significant amount of money by serving on a “pro bono” basis.
20160109-CA 3 2018 UT App 27In re Evan O. Koller
drain on Evan’s estate and that she “ha[d] been doing the
guardianship voluntarily and ha[d] been saving [the estate] a
substantial amount of money” by doing the work herself. Evan’s
attorney and Dan agreed with Kathryn, emphasizing that they,
too, wished to avoid “depleting the estate” and stating that
Kathryn “deserved a medal” for “dramatically reduc[ing] the
drain on the estate.” Finally, Mark did not object to Kathryn’s
receiving the appointments, but he did ask the court to appoint
two other siblings as co-guardians and one additional co-
conservator to counterbalance Kathryn’s sway over Evan.
¶7 “Greatly influenced” by her representations that she
would serve without compensation, the court granted Kathryn
permanent guardianship over Evan and, with Dan, permanent
co-conservatorship. Kathryn and Dan held these positions on an
uninterrupted basis until Evan passed away in April 2014, a
period of just under five years. Although Kathryn’s siblings did
not divest her of her appointments during Evan’s life, it was not
for lack of trying. On the contrary, her siblings filed numerous
motions and objections alleging that Kathryn was mismanaging
the assets of the estate and taking affirmative steps to isolate
them from Evan.
¶8 Throughout her tenure as permanent guardian and co-
conservator, Kathryn’s siblings frequently expressed concern
that she was paying herself and her attorney from the funds of
the estate. Yet Kathryn adhered firmly to the position that she
was working without compensation, insisting that any money
she was taking from the estate was limited to reimbursement of
her out-of-pocket expenditures on Evan’s behalf. Consistent with
these representations, Kathryn did not include a request for
compensation in the final guardian’s or conservators’ reports
upon Evan’s death.
¶9 Dan, on the other hand, occasionally vacillated on the
issue of compensation. At the hearing on the issue of appointing
a permanent guardian and conservator, his counsel represented
that, while serving as temporary co-conservator with Kathryn,
20160109-CA 4 2018 UT App 27In re Evan O. Koller
Dan had not been “depleting the estate.” But at a February 2012
hearing held in connection with the co-conservators’ annual
accounting, Dan took the position that he had never agreed to
forgo payment altogether; on the contrary, he intended to enter a
request for “reasonable compensation . . . in the not too distant
future.” And indeed, Dan did include a request for
compensation in the final conservators’ report, which he and
Kathryn jointly filed in October 2014. As none of the siblings
opposed Dan’s request, the court granted it.
¶10 Several months after the final guardian’s and
conservators’ reports had been filed, Kathryn surprised her
siblings with a motion for compensation, wherein she requested
over $475,000 for the services she performed between March
2009 and April 2014. While LuAnn stipulated to Kathryn’s
request, Dan, Julie, Kayleen, and Mark all objected to it,
maintaining, among other things, that Kathryn was estopped
from making it due to her many representations that she would
serve without compensation. 4 Kathryn filed a reply
memorandum in which she largely ignored her siblings’
estoppel argument, instead making several statutory
arguments. 5 At no point did any party request an evidentiary
hearing on the motion.
¶11 The district court held a hearing on Kathryn’s motion on
June 4, 2015. At the hearing, Kathryn maintained she had never
taken the position that she did not expect to be compensated for
4. To be clear, the siblings argued for the application of the
equitable estoppel doctrine. They did not raise the issue of
judicial estoppel. See Orvis v. Johnson, 2008 UT 2, ¶ 11, 177 P.3d
600 (discussing elements of judicial estoppel).
5. She did not mention that the sum she was requesting as
compensation for her services as co-conservator was more than
four times the sum that Dan had requested.
20160109-CA 5 2018 UT App 27In re Evan O. Koller
her services at some point. Rather, she argued, the only
reasonable interpretation of her previous representations is that
she did not intend to seek compensation during Evan’s life. She
explained that, in postponing her request, her aim was to ensure
that the estate had sufficient funds to provide for Evan’s care
while he lived. But the court was unconvinced. It found instead
that Kathryn had “made numerous representations to the Court
and the parties that she would serve as guardian and
conservator without compensation,” and, further, that her
siblings had only supported her appointments because of these
representations. Accordingly, it ruled that Kathryn was
equitably estopped from seeking compensation for her services
as guardian and co-conservator.
¶12 Following the court’s ruling, Kathryn filed a motion to
reconsider. The court denied her motion, explaining that
Kathryn had “not cite[d] an applicable rule of civil procedure to
support her motion” and that, in any case, her arguments were
“substantively identical to those previously considered and
rejected at the June 4, 2015 hearing.” This appeal followed.
ISSUES
¶13 Kathryn raises four issues for our review. First, Kathryn
argues that the district court erred in failing to hold an
evidentiary hearing on the issue of equitable estoppel. Second,
she argues that the district court erred in concluding she was
equitably estopped from requesting compensation for her
services as guardian and co-conservator. Third, she argues that
the district court’s decision to deny her compensation for her
services was grounded in a misapplication of the Utah Uniform
Probate Code. And fourth, she argues that the district court
“improperly discriminate[d] against [her] by denying her any
compensation while granting compensation to her brother.”
20160109-CA 6 2018 UT App 27In re Evan O. Koller
ANALYSIS
I. The Court’s Failure to Hold an Evidentiary Hearing
¶14 We begin with Kathryn’s contention that the district court
erred in failing to hold an evidentiary hearing before it
concluded that her request for compensation was barred by
equitable estoppel. She urges us to review this issue de novo,
although her argument as to why we should do so is short and
conclusory. Regardless, we conclude that this issue was not
preserved in the district court. While we sometimes review
unpreserved issues for plain error, see Thomas v. Mattena, 2017
UT App 81, ¶¶ 9, 13, 397 P.3d 856, we will not do so if the
appellant has not argued that the plain error doctrine or any
other exception to the preservation rule applies, see Marcroft v.
Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164. And Kathryn
has not made such an argument here.
¶15 Kathryn maintains, “It is axiomatic that if there are
disputed issues of material fact, then an evidentiary hearing (or
trial) is necessary to resolve such disputes.” She supports her
position with three case citations, each involving an appeal from
a summary judgment, 6 and almost nothing else. Altogether, she
dedicates less than a page of argument to this issue in her
opening brief. But we have no occasion to comment on the
merits of her argument because she failed to raise it in a timely
manner in the district court.
¶16 “[T]o preserve an issue for appeal[,] the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “This requirement
6. In support of her position, Kathryn cites our decisions in
Bangerter v. Petty, 2010 UT App 49, 228 P.3d 1250; Bear River
Mutual Insurance Co. v. Williams, 2006 UT App 500, 153 P.3d 798;
and Davis v. Sperry, 2012 UT App 278, 288 P.3d 26.
20160109-CA 7 2018 UT App 27In re Evan O. Koller
puts the trial judge on notice of the asserted error and allows for
correction at that time in the course of the proceeding.” 438 Main
Street v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. A trial
court will not be deemed to have been given adequate notice of
an asserted error unless three elements have been satisfied:
“(1) the issue must be raised in a timely fashion; (2) the issue
must be specifically raised; and (3) a party must introduce
supporting evidence or relevant legal authority.” Badger v.
Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998) (citation and
internal quotation marks omitted).
¶17 Kathryn does not dispute that she failed to request an
evidentiary hearing in her motion for compensation or its
supporting memoranda. Nevertheless, she contends that the
issue was preserved because she urged the court to hold an
evidentiary hearing in her motion to reconsider. But as the court
stated in its order denying that motion, “[m]otions to reconsider
are not recognized by the Utah Rules of Civil Procedure.” See
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615.
Accordingly, as “trial courts are under no obligation to consider
motions for reconsideration, any decision to address or not to
address the merits of such a motion is highly discretionary.” Id.Here, although the district court did issue a three-page
memorandum decision resolving Kathryn’s motion, it addressed
other matters and declined to consider her request for an
evidentiary hearing. Indeed, no mention of the request appears
anywhere in the decision. Kathryn has little room to complain
about this omission because it was she who failed to raise the
issue “in a timely fashion,” see Badger, 966 P.2d at 847 (citation
and internal quotation marks omitted), that is, while the motion
for compensation was being debated and considered and before
it had been decided.
¶18 Because Kathryn failed to provide the district court with
timely notice of a potential error, we conclude that the
evidentiary hearing issue was not preserved for appeal. We
therefore decline to consider it further.
20160109-CA 8 2018 UT App 27In re Evan O. Koller
II. The Court’s Equitable Estoppel Decision
¶19 Kathryn maintains that the district court’s conclusion that
she was equitably estopped from claiming compensation was
“[p]remature” because “the facts on which [the court] base[d] its
legal conclusion are disputed” and, in some instances, the court’s
findings “are not even supported” by the record. We conclude
that the court did not err in reaching its decision.
¶20 When challenged, a district court’s application of the
equitable estoppel doctrine presents “a classic mixed question of
fact and law.” Department of Human Services ex rel. Parker v.
Irizarry, 945 P.2d 676, 678 (Utah 1997). As a general proposition,
when reviewing these questions we are “free to make an
independent determination of the trial court’s conclusions,” but
“the trial court’s factual findings shall not be set aside on appeal
unless clearly erroneous.” Id. at 682 (citation and internal
quotation marks omitted). However, not all mixed questions of
fact and law are alike; our review will be more or less deferential
depending on the nature of the particular mixed question before
us. See State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (articulating
three factors to aid in “selecting the appropriate standard of
review for a mixed question of fact and law from the spectrum of
possible levels of deference”).
¶21 The Utah Supreme Court has had occasion to opine on the
proper standard for reviewing a trial court’s application of the
equitable estoppel doctrine. In Irizarry, the Court observed that,
when it comes to equitable estoppel, “[t]he variety of fact-
intensive circumstances involved weighs heavily against lightly
substituting [the judgment of the appellate court] for that of the
trial court.” 945 P.2d at 678. This is because a trial court’s legal
conclusions on an equitable estoppel issue are often bound up
tightly with its deliberations on “observed ‘facts’ such as the
witness’s appearance and demeanor . . . that cannot be
adequately reflected in the record available to appellate courts.”
Id. at 681–82 (citation and internal quotation marks omitted).
Accordingly, the Court held that, when reviewing a
20160109-CA 9 2018 UT App 27In re Evan O. Koller
determination that the elements of equitable estoppel have been
satisfied, appellate courts will “properly grant the trial court’s
decision a fair degree of deference.” Id. at 678.
¶22 No evidentiary hearing was held by the district court, as
previously explained. But because Kathryn did not timely
request one, she waived not only her ability to claim that the
district court erred in failing to hold such a hearing but also any
challenge to the findings made by the district court on the basis
of the parties’ written submissions and the record otherwise
before it. Accordingly, the district court’s findings stand. Its
findings relative to the estoppel issue are properly reviewed for
clear error, and its ultimate decision on the issue is entitled
to Irizarry’s “fair degree of deference.” Id.
¶23 With the proper standard of review in mind, we turn our
attention to Kathryn’s claim that the court’s equitable estoppel
decision was erroneous. To successfully raise an equitable
estoppel defense, a party must prove each of three elements:
(i) a statement, admission, act, or failure to act by
one party inconsistent with a claim later asserted;
(ii) reasonable action or inaction by the other party
taken or not taken on the basis of the first party’s
statement, admission, act, or failure to act; and
(iii) injury to the second party that would result
from allowing the first party to contradict or
repudiate such statement, admission, act, or failure
to act.
Nunley v. Westates Casing Services, Inc., 1999 UT 100, ¶ 34, 989
P.2d 1077 (citation omitted). Kathryn maintains that the court
“erred in relying on its [f]indings of [f]act” when concluding that
these elements were satisfied because its findings emanate from
20160109-CA 10 2018 UT App 27In re Evan O. Koller
evidence that remains “disputed.” 7 Specifically, she argues that,
in light of the court’s failure to conduct an evidentiary hearing,
there remain significant, unresolved factual disputes regarding
“(1) the meaning of [Kathryn’s] statements about compensation,
(2) the alleged actions of the other parties in reliance of those
statements, [and] (3) any injury to the other parties.” 8
7. In addition to challenging the court’s findings relating to the
elements of equitable estoppel, Kathryn also argues that there is
insufficient evidence in the record to support the court’s express
finding that Dan opposed Kathryn’s request for compensation.
She asserts that Dan did join in his siblings’ motion opposing her
request, but, during oral argument, took the position that she
should receive at least some compensation for her services but
less than the entire amount she sought. Kathryn raises this
argument in connection with an argument she makes in support
of her third contention on appeal, which we address in more
detail in Part III of this opinion. Briefly stated, the argument she
makes is that, as a duly appointed conservator, Dan had
authority under the Utah Uniform Probate Code to award
appropriate compensation. However, in Part III, we conclude
that the district court correctly ruled that Kathryn was estopped
from requesting compensation for her services, regardless of
what she might ordinarily have been entitled to under the
Probate Code. Accordingly, the question of whether Dan did or
did not support her compensation request ultimately has no
bearing on our resolution of Kathryn’s third issue. We therefore
have no reason to address the question here.
8. In the section of her opening brief where she makes these
contentions, Kathryn also maintains that “[t]here are disputed
issues of fact concerning whether Dan made representations to
the District Court about serving without compensation.”
However, such factual issues have no bearing on the threshold
question of whether the elements of equitable estoppel were
(continued…)
20160109-CA 11 2018 UT App 27In re Evan O. Koller
¶24 Thus, Kathryn does not really contend that the court
misunderstood the law of equitable estoppel or that it erred in
applying the law to the facts. 9 Instead, her primary argument is
that the court’s factual findings were flawed. Had Kathryn
preserved her claim that the district court erred in failing to hold
an evidentiary hearing, her attack upon the court’s findings
might conceivably have carried the day. But since she did not,
we are constrained to review those findings under the heavily
deferential clear error standard. Upon doing so, we conclude
that they were adequately supported by the record.
A. Kathryn’s Representations
¶25 Kathryn first argues that there remain “disputed issues of
fact concerning the intent and meaning of [her] statements.” In
its order, the court supported its conclusion that the first element
of equitable estoppel was satisfied with an express finding that
Kathryn “made numerous representations to the [c]ourt and the
parties that she would serve as guardian and conservator
without compensation.” Kathryn contends that much of the
record would be equally consistent with an alternative finding
that she represented that she would not be seeking
compensation during Evan’s lifetime. Because the court’s finding
is not against the clear weight of the record, we conclude that it
was proper.
(…continued)
satisfied with respect to Kathryn. They are, however, relevant to
our resolution of Kathryn’s fourth issue on appeal, namely
whether the court’s application of the equitable estoppel
doctrine to Kathryn was discriminatory in light of its failure to
apply the doctrine to Dan. Accordingly, we will address this
contention in Part IV.
9. To the extent Kathryn argues that the court erred in applying
the law, we address her arguments in footnotes 10 and 11.
20160109-CA 12 2018 UT App 27In re Evan O. Koller
¶26 In support of her position, Kathryn points to the fact that
the record is devoid of any express statement, from her or her
attorney, that she would not be seeking compensation for her
services upon Evan’s passing. She also points to the fact that she
included a “listing of hours spent” caring for Evan in her annual
guardian’s reports, which, she argues, is strong evidence that she
intended to seek compensation in the future.
¶27 Kathryn has not convinced us that the district court’s
finding is against the clear weight of the evidence, i.e., the
evidence such as it was in the absence of an evidentiary hearing.
To begin with, Kathryn all but concedes that she made several
representations that could reasonably be interpreted as meaning
she did not expect to be paid for providing care to her father.
Moreover, the arguments she advances in support of an
alternative finding are unconvincing. As to her first point, the
argument fails because it cuts both ways. While it may be true
that Kathryn made no unambiguous statement that she did not
intend to seek compensation after her father’s death, it is equally
true that, in the course of her many unqualified representations
that she would be serving without compensation, she made no
unambiguous statement that she did intend to seek such
compensation. And as to her second point, we observe that the
“listings” Kathryn included in each guardian’s report hardly
exhibit the level of detail that one would expect from a person
who hopes to be paid for her time. On the contrary, in each
annual report Kathryn included merely a single number
representing the total hours she had spent caring for her father
during the preceding year. Accordingly, we do not disturb the
court’s finding regarding Kathryn’s representations.
B. The Siblings’ Reliance on Kathryn’s Representations
¶28 Kathryn also argues that “[t]here are disputed issues of
fact concerning whether reasonable action was taken in reliance
of [Kathryn’s] statements.” The court reached its conclusion that
the reliance element of equitable estoppel was satisfied after
finding that, although Kathryn’s siblings initially objected to her
20160109-CA 13 2018 UT App 27In re Evan O. Koller
appointments, they “subsequently supported her appointment
based on her representation that she would act in [her] capacities
‘without compensation’ and ‘pro bono.’” Kathryn asserts that the
court’s finding is unsupported by the record. 10 On the contrary,
she argues, the record demonstrates that her siblings
“consistently opposed [her] appointment and challenged her
every step of the way.” Upon granting the appropriate degree of
deference to the court’s finding, we conclude that the record
adequately supports it.
¶29 We acknowledge that it is clear that Kathryn’s efforts to
acquire and, later, to perform the duties incident to her
appointments were consistently met with stiff opposition from
Julie and Kayleen, even after Kathryn had said she would forgo
compensation. Nevertheless, the record contains little evidence
that Kathryn’s other siblings were raising complaints about her
during her tenure as guardian and co-conservator. From this, we
think the court could reasonably have inferred that Kathryn’s
siblings were holding their tongues in reliance on her
representations that she was serving without compensation.
Given that the court’s factual determinations are entitled to our
considerable deference, we conclude that there was a sufficient
10. Kathryn also maintains that, regardless of whether her
siblings did in fact rely on her representations, as a matter of law
they were precluded from relying on them because she owed her
siblings no fiduciary duty. Rather, she argues, her “words and
conduct about working pro bono were intended solely to benefit
[Evan], with whom [she] had a fiduciary relationship.” But
Kathryn cites no authority for her proposed rule that one may
not reasonably rely on the statement of another for equitable
estoppel purposes unless that person is her fiduciary, a
proposition that strikes us as counterintuitive. Because she also
fails to articulate any reason why we should adopt such a rule,
we decline to do so.
20160109-CA 14 2018 UT App 27In re Evan O. Koller
basis for its finding on the element of reliance in view of the
record before it.
C. Injury to the Siblings
¶30 Finally, Kathryn maintains that there remains a factual
dispute as to whether her siblings would suffer injury if her
request were approved because her “requested compensation is
significantly lower than what would have been paid to
professionals.” 11 This contention may be dealt with in short
order. The district court found that “the beneficiaries of the
estate would be damaged by the reduction [of] the assets of the
Estate if [Kathryn] were compensated.” It is true that, in making
this finding, the court did not attempt to calculate precisely how
much money Evan’s estate would have saved by paying Kathryn
to care for her father instead of paying for professional care. But
it did not need to do so. Regardless of what professionals may
have charged, the beneficiaries’ share of the estate, as it existed
at the time of Evan’s death, would necessarily have been
diminished if Kathryn were permitted to take payment in any
amount for her services. Because the record establishes that
11. Kathryn also argues that the district court’s finding
concerning injury to the siblings was erroneous because the
“assets of the estate belonged to Evan . . . during his lifetime, and
such assets did not, and have never, belonged to the siblings.”
But again, Kathryn cites no legal authority for the proposition
she advances. And we are aware of no decision from any court
in this jurisdiction holding that the loss of a contingent future
interest does not amount to an injury for purposes of the
equitable estoppel doctrine. Moreover, even if we were to adopt
such a rule today, it is by no means clear that it would be
dispositive here because Kathryn did not file her request for
compensation until after her father had passed away, and his
estate had passed—or was in the process of passing—to his
children.
20160109-CA 15 2018 UT App 27In re Evan O. Koller
Kathryn sought a substantial amount for her services, we readily
conclude that the court did not clearly err in making this finding.
¶31 For the foregoing reasons, we conclude that the court’s
factual findings in support of its equitable estoppel decision
were not clearly erroneous. We therefore conclude that the court
did not err in determining Kathryn was estopped from claiming
compensation.
III. The District Court’s Compliance with the Probate Code
¶32 Kathryn’s third contention is that the district court erred
in denying her motion because she was entitled to compensation
under the relevant provisions of the Uniform Probate Code, as
adopted in Utah. To the extent the court’s decision turned on an
application of the Probate Code, its interpretation of the relevant
statutory provisions “is a question of law that this court reviews
for correctness.” Olson v. Utah Dep’t of Health, 2009 UT App 303,
¶ 9, 221 P.3d 863. But to the extent the court’s decision was
grounded instead in the doctrine of equitable estoppel, we grant
its decision “a fair degree of deference.” Department of Human
Services ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997). We
conclude the court’s decision was proper, notwithstanding that
it was in apparent conflict with the Probate Code.
¶33 The argument Kathryn advances is straightforward. She
begins by directing our attention to section 312 of the Probate
Code, which provides that “[a]ny guardian . . . is entitled to
receive reasonable sums for services . . . furnished to the ward as
agreed upon between the guardian and the conservator.” Utah Code.
Ann. § 75-5-312(5) (LexisNexis Supp. 2017) (emphasis added). 12
12. At the time Kathryn’s motion for compensation was argued,
the text of this section was codified elsewhere in the Probate
Code. As the text remained unchanged when it was recodified,
we refer to the most recent codification for the sake of
convenience.
20160109-CA 16 2018 UT App 27In re Evan O. Koller
Next, she directs us to sections 414 and 424, which provide,
respectively, that a “conservator . . . is entitled to reasonable
compensation from the estate” and that a conservator “may act
without court authorization or confirmation
to . . . pay . . . compensation of the conservator.” Id.§§ 75-5-414, -424(4)(t). She then reasons that, since her co-
conservator, Dan, contested only the amount of her
compensation, not whether she should be compensated at all, he
therefore effectively gave his approval for her basic requests,
although not the specific amounts. Accordingly, because both
co-conservators agreed that she should receive at least some
compensation for her services, Kathryn argues that the statutes
she cites precluded the court from denying her motion for
compensation outright.
¶34 We agree that, under ordinary circumstances, Kathryn
would be entitled to compensation for her services. In fact,
Kathryn’s siblings agree on this point as well. But the
circumstances of this case are not ordinary. Here the court
determined that, based on Kathryn’s repeated representations
that she would not be taking the compensation to which she
might otherwise be legally entitled, Kathryn was estopped from
making a request for compensation at a later date. See Youngblood
v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 19, 158 P.3d 1088 (noting
that the equitable estoppel doctrine operates as a bar to the
enforcement of an otherwise valid legal claim). We therefore
conclude that, although the court’s decision may have been
contrary to the ordinary requirements of the Probate Code, it
was not contrary to law in the broader sense.
IV. The Court’s Disparate Treatment of Kathryn and Dan
¶35 Kathryn’s final contention is that the district court
“improperly discriminated against [her] by denying her
compensation while granting compensation to her brother.” As
for the applicable standard of review, since Kathryn’s fourth
challenge is in essence a second attack upon the court’s equitable
estoppel decision, we review the decision according to the
20160109-CA 17 2018 UT App 27In re Evan O. Koller
standard for mixed questions of fact and law articulated in
Department of Human Services ex rel. Parker v. Irizarry, 945 P.2d 676(Utah 1997). 13 See id. at 678.
¶36 Although she does not raise an equal protection
challenge, Kathryn does appear to suggest that the court’s
disparate treatment of her and Dan was the product of invidious
discrimination. Thus, she urges us to decide, as a matter of law,
that the court “failed to fashion an appropriate remedy” because
“compensating a male co-conservator, while denying
compensation to a female co-conservator who did substantially
all the work, creates an unjust outcome from an equity
perspective.” 14 But we cannot grant Kathryn relief based on her
pleas for equity alone. Because Kathryn does not articulate any
legally cognizable ground for reversal, we conclude that she has
failed to carry her burden of persuasion on appeal.
¶37 Rule 24 of the Utah Rules of Appellate Procedure places
on the shoulders of the appellant the burden of persuading the
reviewing court that an error has been made below. It provided,
13. Although Kathryn argues that we should review the court’s
decision for correctness, she supports her argument by citing In
re Adoption of Baby B., 2012 UT 35, 308 P.3d 382. In that case, the
Utah Supreme Court observed that appellate courts “must be
vigilant in [their] review of . . . mixed findings to ensure that
they are based on correct legal principles.” Id. ¶ 47. Thus,
notwithstanding her argument, she calls our attention to
authority recognizing that the issue she raises is a mixed
question of fact and law, not a purely legal question.
14. This point was fleshed out a bit more at oral argument. Her
counsel suggested that the district court’s decision was a product
of outdated societal norms, according to which daughters are
expected to take care of their aging parents as a matter of course
while deeming it extraordinary—to the point of meriting
compensation—if a son does the same.
20160109-CA 18 2018 UT App 27In re Evan O. Koller
at the time Kathryn filed her brief, that an appellant’s brief “shall
contain the contentions and reasons” that support disturbing the
judgment of the lower court, “with citations to the authorities . . .
relied on.” Utah R. App. P. 24(a)(9) (2016). 15 Furthermore, our
Supreme Court has made clear that an appellant cannot carry
her burden of persuasion unless she supports her arguments and
contentions with “meaningful legal analysis.” Cook v. Department
of Commerce, 2015 UT App 64, ¶ 31, 347 P.3d 5 (citation and
internal quotation marks omitted). An appellant’s brief must “go
beyond providing conclusory statements and fully identify,
analyze, and cite its legal arguments.” Id. (citation and internal
quotation marks omitted).
¶38 Kathryn fails to persuade us that the district court’s
decision to deny compensation to her but not to her brother
constituted reversible error because she has failed to “identify,
analyze, and cite . . . legal arguments” in favor of her position. 16
15. Rule 24 was amended and renumbered in 2017. Subsection
(a)(9) was renumbered as subsection (a)(8) and now provides
that an appellant’s argument “must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P.
24(a)(8).
16. To the extent Kathryn attempts to advance a legal argument,
her points are essentially irrelevant. For instance, citing authority
from other jurisdictions for the proposition that trial courts have
“inherent power” to award compensation to guardians, she
argues that “the District Court had the power to exercise its
discretion and award [Kathryn] compensation.” But whether this
is true has no bearing on the question of why the court treated
her differently from Dan or whether such disparate treatment
was legal. She also argues, without citing any authority, that
“Utah law and public policy favors fairly compensating family
caregivers of incapacitated adults.” But again, her contention has
(continued…)
20160109-CA 19 2018 UT App 27In re Evan O. Koller
See id. (citation and internal quotation marks omitted). To
support her claim that she has been treated unfairly, Kathryn
attacks the district court’s finding that Dan “never represented
that he would not seek compensation for his services” as
unsupported by the record. She maintains that, on the contrary,
throughout the proceedings below Dan’s “conduct and
representations were consistent with” her own. We grant that, if
Dan’s representations during the proceedings below were in fact
identical to Kathryn’s, then the court’s decision to treat him
more favorably than his sister would arouse suspicion that
gender bias played a part in the decision.
¶39 But the record does not support Kathryn’s contention. It is
true that, during argument at the hearing to appoint a
permanent guardian and conservator, counsel for Dan
represented that Dan had not been “depleting the estate” while
serving as temporary co-conservator. However, at a hearing in
February 2012—more than two years before he made his
compensation request—Dan made it clear to his siblings and to
the court that, whatever Kathryn’s plans might be, he intended
to seek compensation for his services in the future. And his
earlier representation that he had not been “depleting the estate”
is consistent with the position that he did intend to seek
compensation, albeit at a later time and at a lower rate than what
a professional fiduciary would charge. Finally, in considering
the court’s disparate treatment of Kathryn and Dan, we think it
significant that the sum Kathryn requested was markedly larger
than the sum Dan requested in the final conservators’ report.
Indeed, Kathryn’s request for co-conservatorship fees alone was
more than four times greater than the sum Dan sought for his
services. For these reasons, we believe the record adequately
supports the court’s finding regarding Dan’s representations.
(…continued)
nothing to do with the issue of the district court’s disparate
treatment of her and her brother.
20160109-CA 20 2018 UT App 27In re Evan O. Koller
CONCLUSION
¶40 For the foregoing reasons, we conclude that the district
court did not err in denying Kathryn’s motion for compensation.
Accordingly, we affirm.
20160109-CA 21 2018 UT App 27