Terry v. Anderson
381 P.3d 1179
Utah Ct. App.2016Background
- Vern Anderson died intestate in Feb 2009; son Bryan filed for informal administration and was appointed personal representative. Denise Terry (daughter) claimed a 1980 will existed and produced it and a 2008 "gift letter" purporting to give her personal belongings and two homes.
- Bryan contested the authenticity of the 2008 gift letter; parties initially designated competing forensic-document experts (Bryan: Kathy Carlson; Denise: George Throckmorton).
- At a pretrial conference the court and parties agreed to appoint a single court expert for both sides; the court selected James A. Tarver as the joint forensic document examiner and the parties submitted questions for his report.
- Denise submitted Throckmorton’s expert report among proposed exhibits but then, during trial, her counsel said they would not use those items; the court acknowledged and excluded them from the record by virtue of that withdrawal.
- Tarver’s report concluded the questioned signatures were highly probably not genuine; the trial court found the gift letter not trustworthy (noting notarization irregularities, mismatched typeset, missing co-owner signature) and upheld the 1980 will.
- Denise moved for a new trial arguing insufficient evidence to deem the gift letter forged; the court denied the motion. Denise appealed, raising (1) exclusion of Throckmorton’s report and (2) insufficiency of the evidence.
Issues
| Issue | Terry's Argument | Anderson's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly excluded Throckmorton’s expert report | The report was wrongly excluded and should have been considered | Denise voluntarily withdrew the report and the court only acted on that withdrawal; additionally the court had appointed a joint expert and parties agreed to use one expert | No error; issue not preserved (report withdrawn) and exclusion would be permissible; any error harmless |
| Whether the court abused discretion by appointing/using a single court expert and excluding other expert materials | Excluding her expert prejudiced her ability to rebut Tarver’s conclusions | Parties agreed to a joint expert to limit costs; enforcing that agreement was within court discretion | No abuse of discretion; enforcing the single-expert agreement appropriate |
| Whether exclusion of Throckmorton’s report was reversible error (harmful) | Admission would have undercut Tarver and affected outcome | Throckmorton could only say he could not determine genuineness; Tarver reached a definitive opinion for forgery | Any exclusion was harmless — Throckmorton’s report was inconclusive and unlikely to change result |
| Whether evidence was sufficient to deny a new trial (i.e., to support finding the gift letter forged) | Trial evidence had reasonable explanations for alleged irregularities; findings insufficient | Tarver’s expert opinion plus notarization/type irregularities and lack of co-owner signature supported forgery finding | Sufficient evidence supports the trial court’s findings; denial of new trial affirmed |
Key Cases Cited
- Alliant Techsystems, Inc. v. Salt Lake County Board of Equalization, 363 P.3d 530 (Utah Ct. App.) (trial court’s exclusion of expert testimony reviewed for abuse of discretion)
- Clayton v. Ford Motor Co., 214 P.3d 865 (Utah Ct. App.) (standard of review for denial of new trial and insufficiency-of-evidence review)
- Wolferts v. Wolferts, 316 P.3d 448 (Utah Ct. App.) (preservation requirement: party must present issue so trial court has opportunity to rule)
- State v. Archuleta, 850 P.2d 1232 (Utah) (harmless-error standard)
- State v. Evans, 20 P.3d 888 (Utah) (definition and application of harmless error)
- Brewer v. Denver & Rio Grande W. R.R., 31 P.3d 557 (Utah) (insufficiency-of-evidence requires showing all evidence in favor of verdict cannot support it)
- Heslop v. Bank of Utah, 839 P.2d 828 (Utah) (deference to trial court’s assessment of conflicting evidence)