Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2010 Cosby : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca3 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Rosalind Cazares, Ernest Walton; attorneys for appellants. David O. Parkinson, James D. Gilson; Callister, Nebeker & McCullough; attorneys for appellee. Recommended Citation Brief of Appellee, Cosby, No. 20100099 (Utah Court of Appeals, 2010). https://digitalcommons.law.byu.edu/byu_ca3/2153 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS IN THE MATTER OF THE BRIEF OF APPELLEE ESTATE OF ROSEMARY COSBY District Court Case No.: 973900220 Appellate Case No.: 20100099 District Court Judge: LEE A. DEVER Rosalind Cazares, Pro Se David O. Parkinson, USB No. 2527 6842 Windy Ridge Drive James D. Gilson, USB No. 5472 Herriman, Utah 84096 CALLISTER NEBEKER & McCULLOUGH Ernest Walton, Pro Se 2180 So. 1300 East, Suite 600 840 West Timber Creek, No. 1009 Salt Lake City, Utah 84106 Salt Lake City, Utah 84119 Attorneys for Special Administrator Leland S. McCullough Appellants Appellee FILED UTAHAPP^' ^"OURTS FEB 2 3 2011 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. LIST OF PARTIES AND INTERESTED PERSONS The parties to this appeal are: Rosalind Cazares, Pro Se 6842 Windy Ridge Drive Herriman, Utah 84096 Appellant Ernest Walton, Pro Se 840 West Timber Creek, No. 1009 Salt Lake City, Utah 84119 Appellant Leland S.McCullough, Jr., Special Administrator Represented by David O. Parkinson, Esq. and James D. Gilson, Esq. CALLISTER NEBEKER & McCULLOUGH Attorneys for Special Administrator 2180 So. 1300 East, Suite 600 Salt Lake City, Utah 84106 Appellee Interested persons as defined by Section 75-1-201 U.C.A. (1953), as amended, are: Robert Cosby, represented by Stephen W. Cook, Esq. 230 South 500 East, Suite 465 Salt Lake City, Utah 84102 Annie Lois Johnson, represented by Julie Bryan, Esq. 257 East 200 South, Suite 700 Salt Lake City, Utah 84111 Pamela Cosby and Debra Cosby, Represented by Shawn Turner, Esq. 5383 South 900 East, Suite 104 Salt Lake City, Utah 84107 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF CONTENTS Page TABLE OF CONTENTS i, ii TABLE OF AUTHORITIES iii STATEMENT OF JURISDICTION 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW 1 I. DID THE PROBATE COURT ERR IN REFUSING TO RECOGNIZE CLAIMS ASSERTED BY ROSALIND CAZARES? 1 II. DID THE PROBATE COURT ERR IN APPROVING A SETTLEMENT IN THE ANCILLARY KENNEDY ACTION? 1 CONSTITUTIONAL AND STATUTORY PROVISIONS 3 STATEMENT OF THE CASE 8 A. NATURE OF CASE 8 B. COURSE OF PROCEEDINGS 8 C. DISPOSITION BELOW 11 D. STATEMENT OF THE FACTS 12 Part A: General Facts Related to The Estate of Rosemary Cosby 13 Part B: Facts Related To Settlement of the Kennedy Action 16 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. Part C: Facts Relating To Evaluation of the Estate's Personal Property 22 SUMMARY OF ARGUMENTS 23 ARGUMENT 26 I. THE COURT DID NOT ERR IN REFUSING TO RECOGNIZE CLAIMS ASSERTED BY ROSALIND CAZARES 26 II. THE COURT DID NOT ERR IN APPROVING A SETTLEMENT IN THE ANCILLARY KENNEDY ACTION 27 III. THE COURT DID NOT ERR IN VALUING ROSEMARY COSBY'S PERSONAL PROPERTY 30 CONCLUSION AND RELIEF SOUGHT 34 CERTIFICATE OF SERVICE 36 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. TABLE OF AUTHORITIES Page Bambrough v. Behrers, 552 P.2d 1286 (Ut. 1976) 2, 34 Bean v. Carlos, 445 P.2d 144, 145 (Ut.1968) (prior court approval unnecessary and settlements set aside only upon proof of bad faith or fraud) 27 Cosby v. Cazares, 2010 Ut. App. 269 (Ut. App. 2010) (Addendum A) 21, 26 Doellev. Bradley, 784 P.2d 1176, 1179(Ut. 1989) 1,2 Hampton v. Professional Title Services, 242 P.3d 796 (Ut. App. 2010) 12 Horton v. Gem State Mut. of Utah, 794 P.2d 847, 849 (Ut. App. 1990)(non-jury trial) 12 Horton v. Gem State Mut. of Utah, 794 P.2d 847, 849 (Ut. App. 1990) (non-jury trial) 33 Jenkins v. Swan, 675 P.2d 1145 (Ut. 1973) 26 Matter of Estate of Bartell, 776P.2d 885, 886 (Ut. 1989) 1, 2 Pugh v. N. Am. Warranty Services, Inc., 1 P.3d 570, 573 (Ut. App. 2000) 33 Tschaggemy v. Milbanklns. Co., 163 P.3d 615, 622 (Ut. 2007) 33 Valcarce v. Fitzgerald, 961 P.2d 305, 313 (Utah 1998) 34 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. STATKMKI IT IW Ill lit IS ill I ill I 111 IN JurisdictK-;: ^ conferred upon tins v ourt undci :secuo;. *x \- : *' ^H ill :i that tl lis case was trai isfei red fi on 1 tl :ie I f'tal i Si ipi erne Coi irl tc • tl :ie I Ital i C( )i ul < • »f ' \ ppe< ils 01 i } "li u ( :! i 1, 2010. STATEMENT OF ISSUES PRESENTED FOR REVIEW I. DID THE PROBATE COURT ERR IN REFUSING IO RECOGNIZE CLAIMS ASSERTED BY ROSALIND CAZARES? Standard of Review?, The substance of Appellant Rosalind Cazares' claim is that tik. rroDai^ t. ourt erreu wii-ji: .; IVL:>CL. to recognize her no particular deference and are reviewed for correctness. Doelle v. Bradley, 784P.2d : 1 76, 117^Ut. 1989). II DID THE PROBATE COURT ERR IN APPROVING A SETTI EMENT IN TIIH ANCILLARY KENNEDY ACTION? Standam;./ Keview. On review, an appellate court states tne ucis n, a ligl it n lost favorable to tl le trie il c c )i irt's:!: ii I in lgs a,i id decisioi is oi 'law ai e reviewed for correctness. Doc!'< •• fh\/J;r\ ^."•;\. • .'•-.iri's findings of fact following an evidentiary hearing in an estate proceeding are reviewed baseDigitizedd upo by nthe aHoward clear! W. Hunter) erroneou Law Library,s J.standard Reuben Clark, LawMatter School, BYU. of Estate of Machine-generated OCR, may contain errors. Bartell, 776 P.2d 885, 886 (I Jt. 10F0). An appellant must marshal the evidence in support of tlle findings and then demonstrate that, despite this evidence, the trial cour;'- ;Hidings are so lacking in support as to be "against tl ic clear weight of the evidence," tl: n is I i laking tl len I "clearly en o.i ieoi is." h L (Internal citations omitl ed). " Wh( ;ther the f;: icts 1 v< ive been foi ind by ; I ji iry c >r a judge, appellants should recognize that the burden of overturning factual findings is a heavy one, reflective of the fact that we do not sit to retry cases submitted on disputed facts." Id. A trial court's statements or conclusions <>! law are accorded ho particulai deference and are reviewed for correctness. DID THE PROKAI Jb UJLRl LRK 1A \ ALl JING I I IE PERSONAL PROPERTY OF THE ESTATE? Standard of Review. Implicit in the Appellants' argument is that the Probatae Court erred in determining what evidence was relevant. Trial courts are afforded considerable discretion in deciding whether evidence is .:\^^,v . .....'./•; \Ki^n .. Behrers, 5>~ r .-.• .": • i •• district ( :oi i.i 1 's fn idii lgs of fact followii lg ai I evidenl iary I learii ig ii i ai :i esl ate proceeding are reviewed based i ipoi i a clearly en oneoi is stai idard Matter of Estate of Bartell, supra. An appellant must marshal the evidence in suppoi I of the findingDigitizeds and by thethe Howardn demonstrat W. Hunter Lawe Library, that ,J. despitReuben Clarke thi Laws School,evidence BYU. , the trial Machine-generated OCR, may contain errors. court's findings are so lacking in support as to be "against the clear weight of the evidence," thus making them "clearly erroneous." Id CONSTITUTIONAL AND STATUTORY PROVISIONS No constitutional provisions are implicated. The following statutory provisions within Utah's Probate Code are relevant to the controversy: Section 75-3-617 U.C.A. (1953), as amended, provides:1 UA special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct." Section 75-3-703 provides: "(1) A personal representative is a fiduciary who shall observe the standard of care applicable to trustees as described by Section 75-7- 902. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this code and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this code, the terms of the will, if any, and any order in proceedings to which he is party for the best interests of successors to the estate.