author: ORME, Judge:

text:
    2000 Utah Ct. App. 230
    STATE of Utah, Plaintiff and Appellee, v. Chris Alan TRYBA, Defendant and Appellant.
    No. 981869-CA.
    Court of Appeals of Utah.
    July 28, 2000.

      Catherine E. Lilly, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Jan Graham, Attorney General, and Karen A. Klueznik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before GREENWOOD, P.J., BILLINGS, and ORME, JJ.
   OPINION

ORME, Judge:

{1 Christopher Alan Tryba, as part of a plea bargain, entered a guilty plea for Rape of a Child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.1 (1999); Sodomy Upon a Child, a first degree felony, in violation of Utah Code Ann. § 76-5-408.1 (1999); and Sexual Abuse of a Child, a see-ond degree felony, in violation of Utah Code Ann. § 76-5-404.1(1) (1999). Tryba appeals the trial court's conclusion that he was ineligible for probation under Utah Code Ann. § 76-5-406.5 (1999). We affirm.

BACKGROUND

T 2 Tryba was charged by information with one count of rape of a child, two counts of sodomy upon a child, and two counts of aggravated sexual abuse of a child. These five charges arose out of allegations made by Tryba's eight-year-old daughter, M.T., and her young friend. Pursuant to a plea bargain, Tryba admitted guilt only to the three crimes involving his daughter, while all charges involving her friend were dropped.

13 After Tryba's guilty plea, the trial court held an evidentiary hearing to determine Tryba's eligibility for probation under Utah Code Ann. § 76-5-406.5 (1999). The trial court concluded Tryba was ineligible for probation because, among other things, he failed to meet the requirements of section 76-5-406.5(1)(k). The section provides, in relevant part, as follows:

In a case involving conviction, for ... rape of a child; ... sodomy on a child; ... [or] aggravated sexual abuse of a child, the court may suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if all of the following cireumstances are found by the court to be present and the court in its discretion, considering the circumstances of the offense, including the nature, frequency, and duration of the conduct, and considering the best interest of the public and the child victim, finds probation to a residential sexual abuse treatment center to be proper:
(k) if the offense is committed by a parent, stepparent, adoptive parent, or legal . guardian of the child victim, the defendant shall, in addition to establishing all other conditions of this section, establish it is in the child victim's best interest that the defendant not be imprisoned by presenting evidence provided by a treatment professional who:
(1) is treating the child victim and understands he will be treating the family as a whole; or
(ii) has assessed the child victim for purposes of treatment as ordered by the court based on a showing of good cause[.]

Utah Code Ann. § 76-5-406.5(1) (1999) (emphasis added).

14 Because the trial court concluded that the evidence presented at the evidentiary hearing did not prove the necessary elements by a preponderance of the evidence, we now set out the evidence presented that is relevant to our review. Tryba was M.T.'s primary care giver following his divorce from M.T.'s mother. On January 28, 1998, Tryba was charged with the crimes, and M.T. went to live with her mother in New York. Neither MT., her mother, or M.T.'s therapist were present or testified at the hearing. At the mother's request, M.T.'s New York therapist refused to forward any reports regarding M.T.'s treatment to Tryba. Consequently, Tryba's witnesses consisted of his brother, friends, and mental health professionals familiar with Tryba but not with M.T. None of the testifying professionals had any actual treatment arrangements with M.T. or had personally spoken with her. Moreover, none of the professionals had assessed MT. pursuant to court order.

T5 During the hearing, Dr. Robert Card, who had developed Tryba's treatment program, was asked whether he might treat both MT. and Tryba in the future. He indicated that at a future date the family structure might be revised, and that, while speculative at best, it was possible he might eventually treat the entire family. He was also asked his opinion regarding M.T.'s best interest. He admitted his only exposure to M.T. was watching a videotaped interview of her, conducted by a police detective, where, in his opinion, she acted as would any normal child her age. However, he had never spoken with M.T.; had not been sent any paperwork by her therapist; did not know how her therapy was progressing; and, from watching the video, could only conclude, in general terms, that M.T. needed treatment. Despite his limited knowledge, he stated, "I would say that [it is in M.T.'s] best interest [that Defendant not be in prison]," but he readily acknowledged "that's speculative." Dr. Card thought sending Tryba to prison might interfere with the identity needs of M.T. as she matures to adulthood.

T6 Jerome Miller, an expert in treating sex offenders and their victims, testified that he had talked with M.T.'s mother on the phone and felt she and M.T. needed treatment. He admitted, however, that he was not their therapist and that no arrangements had been made for him to begin any therapist/patient relationship with them. Based on his interview with M.T.'s mother, his interviews with Tryba, the financial cireum-stances of MT. and her mother, and-like the other witnesses-watching the taped interview, Dr. Miller concluded sending Tryba to prison would not be in M.T.'s best interest. Dr. Miller acknowledged his conversation with M.T.'s mother was limited to general questions by which he found out M.T. was in therapy and doing "all right," but little else.

T7 Layne Mecham, a licensed clinical psychotherapist whose only exposure to M.T. was viewing the video, opined that M.T. did not show any signs of psychological harm. On cross-examination he admitted it is questionable whether one can determine psychological injury from merely watching a videotaped interview.

1 8 Dan Green, Tryba's "proctor" under his proposed treatment program, was also asked if he had an opinion, developed from the "course of your conversations with Mr. Tryba over the last two-and-a-half months," regarding what would be in M.T.'s best interest. He responded that he did not know, but said he thought Tryba's possibility of recidivism was very low. Tryba's brother also testified that Tryba could provide financial support to M.T. and her mother if not imprisoned, and he felt that would be in everyone's best interest. ©

T9 After the hearing, the trial court refused to grant Tryba probation, concluding Tryba had failed to prove by "a preponderance of the evidence" that he was eligible for probation under the statute. The trial court sentenced Tryba to two minimum mandatory terms of six-years-to-life for the sodomy and rape, and one-to-fifteen years for the sexual abuse of a child, all sentences to run concurrently. Tryba appeals the trial court's conclusion that he was ineligible for probation.

ISSUES AND STANDARD OF REVIEW

110 Tryba alleges the trial court misconstrued section 76-5-406.5(1) in concluding he was ineligible for probation. A trial court's interpretation of a statute is reviewed for correctness. See C.T. v. Johnson, 1999 UT 35, ¶ 6, 977 P.2d 479. Tryba also requests that we set aside the sentence imposed by the trial court. We will set aside a sentence only if "the sentence represents an abuse of discretion, if the trial judge fails to consider all legally relevant factors, or if the sentence imposed exceeds the limits prescribed by law." State v. Gibbons, 779 P.2d 1133, 1135 (Utah 1989) (citations omitted).

ANALYSIS

$11 The statute at issue in this appeal offers a limited exception to the usually applicable mandatory sentence regime governing the most serious child sex abuse offenses. See Utah Code Ann. § 76-38-406 (1999); State v. Johnson, 856 P.2d 1064, 1067 (Utah 1998). This exception was historically referred to as the "incest exception," State v. Gentlewind, 844 P.2d 372, 376 (Utah Ct.App.1992), though not technically limited to incest, and more recently referred to by our Supreme Court as simply "the probation statute." Johnson, 856 P.2d at 1068. This limited exception applies only to situations when greater harm would be done to the victim and other innocent family members by sending the offender to prison than by finding some alternative. See id. at 1068, 1078. Consequently, the exception seeks other strict and regimental means of retribution and treatment for the offender. See Utah Code Ann. § 76-5-406.5 (1999). However, eligibility even for consideration under this exception is difficult to attain.

(12 The statute states that "the court may suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if all of the following cireumstances are found." Id. § 76-5-406.5(1) (emphasis added). The statute then lists a dozen requirements, see id. § 76-5-406.5(1)(a)-(¢ ), each of which the "defendant has the burden to establish by a preponderance of evidence." Id. § 76-5-406.5(5). These twelve requirements are in the conjunctive, meaning if any one of the requirements is not established by a preponderance of evidence, probation is not an option. Of course,

even the establishment of all the section 76-5-406.5(1) criteria by a preponderance of the evidence does not compel a trial court to grant probation. Section 76-5-406.5[(4)] gives the court "discretion to deny the request based on its consideration of the circumstances of the offense" and impose the minimum mandatory sentence.

Gentlewind, 844 P.2d at 376 (citation omitted).

T18 Because a defendant has the burden of meeting all twelve requirements of section 76-5-406.5(1), we need not review all the criteria for eligibility if our inquiry reveals that any single requirement is not satisfied. Cf. State v. Marvin, 964 P.2d 313, 315 (Utah 1998) (when defendant has burden of satisfying two-part test, "it is unnecessary for this court to apply both parts where our inquiry reveals that one of its parts is not satisfied"). In reviewing the trial court's application of section 76-5-406.5, we apply long-standing rules of statutory construction. "This court's primary objective in construing enactments is to give effect to the legislature's intent." Gohler v. Wood, 919 P.2d 561, 562 (Utah 1996). "'When examining a statute, we look first to its plain language as the best indicator of the legislature's intent and purpose in passing the statute.'" Holmes v. American States Ins. Co., 2000 UT App 85, ¶ 10, 391 Utah Adv. Rep. 16, 1 P.3d 552 (quoting Wilson v. Valley Mental Health, 969 P.2d 416, 418 (Utah 1998)).° Therefore, "where the statutory language is plain and unambiguous, we do not look beyond the language's plain meaning to divine legislative intent." Horton v. Royal Order of the Sun, 821 P.2d 1167, 1168 (Utah 1991).

{14 Section 76-5-406.5(1)(k), set forth above, applies, as here, only "if the offense is committed by a parent, stepparent, adoptive parent, or legal guardian of the child victim." In that event, the defendant must "establish it is in the child victim's best interest that the defendant not be imprisoned." Utah Code Ann. § 76-5-406.5(1)(k) (1999). - However, the defendant is not free to make that showing in any way imaginable, but only "by presenting evidence provided by a treatment professional who" is either "treating the child victim and understands he will be treating the family as a whole," or is "assess[ing] the child victim for purposes of treatment as ordered by the court based on a showing of good cause[.]" Id.

T15 In his closing statement during the evidentiary hearing, Tryba's counsel argued Tryba had met this requirement by a preponderance of the evidence. Specifically, he claimed that all of Tryba's witnesses and professionals assessed, as best they could, M.T.'s best interest by watching the video of the interview with M.T. and interacting with Tryba. They all opined, with appropriate qualification, that it would be in M.T.'s best interest to grant Tryba probation. Defense counsel summed up: "[Olther than the restrictions we had because of the noneooperation of the victim and her mother and the therapist in New York, I think that's as good a job as we could do in terms of coming up with an assessment of the child victim{'s best interest]." Counsel also stated, "hopefully there will be correspondence coming back from that [New York] therapist to Dr. Card's office and eventually, in the best interest of [M.T.] ... [tlhe family will be treated as a whole by either Dr. Card in conjunction with the psychologist in New York or some other way."

16 In opposition, counsel for the State argued:

[What the best interests of this child are I think are items that are incapable of being ascertained by the people we've heard from today.... [TJhe statements about [M.T.'s] mother ... have nothing to do with [M.T.] and her best interests. Maybe the only person who could tell us about this is someone who has seen her on a regular basis and who has the expertise to ascertain what her psychological needs are and will be in the future. That person has not come forward.

The State's position is essentially correct. The statute's plain language requires very particularized testimony offered by one of two categories of specifically defined "treatment professional{s]."

117 In enacting section 76-5-406.5, the Utah Legislature envisioned a very narrow set of circumstances that would permit one who sexually abused a child to avoid a mandatory prison sentence. This statute applies in comparatively rare situations, when a defendant corresponds perfectly to an intentionally large number of tightly fitted hoops-all designed to "avoid compounding the harm already suffered while protecting the victim from further abuse." Johnson, 856 P.2d at 1073. In particular, the Legislature put stringent requirements on what evidence must be presented before a trial court can conclude it is in the child's best interest to even consider probation, and it is not enough to base this conclusion on the opinion of family, friends, or even the defendant's therapists or hired experts.

118 Tryba's evidence may arguably have complied with the statute in an earlier form, when all the defendant needed to prove by a preponderance of evidence was that "it is in the victim's best interests that the defendant not be imprisoned," without restricting how that evidence could be presented. Utah Code Ann. § 76-5-406.5(1)(g) (1990). The Utah Supreme Court, interpreting this prior version of the statute, stated:

Although expert testimony might well be relevant, nothing in subsection (1)(g) or in the remainder of the statute indicates that expert evidence is necessary. Evidence from a parent, the victim, and those close to the victim, as well as evidence concerning the cireumstances of the victim and his or her family, may prove what a victim's best interests are without the aid of expert testimony.

State v. Johnson, 856 P.2d 1064, 1073 (Utah 1993).

€19 The Legislature obviously had second thoughts about this rather loose approach to ascertaining the victim's best interest and set about to change it. The plain language of the statute currently in effect significantly tightens this element of the probation exception and renders the above judicial pronouncement obsolete. To meet the preponderance standard, the statute now requires that an expert testify as to the child's best interest. Moreover, the expert cannot be just any expert, but must be either a "treatment professional" who is "treating the child victim and understands he will be treating the family as a whole" or who "assess[es] the child victim for purposes of treatment as ordered by the court based on a showing of good cause." Utah Code Ann. § 76-5-406.5(1)(k) (1999). No other kind of expert will suffice. There is no alternative by which the best interest of the victim can be shown for defendants unable to marshal the pre-seribed kind of testimony from the specified kinds of professional.

$20 The logic behind the statute is obvious: The requirement ensures testimony is presented by a treating or court-ordered professional with first-hand knowledge of the child's needs, who is unbiased, and, above all, is concerned with what would be best for the child. In this case, each treatment professional who testified was in court to speak first and foremost on Tryba's treatment potential, progress, and character. This evidentiary showing by the professionals treating Tryba, while helping meet other requirements of 76-5-406.5(1), is almost the opposite of what subsection (1)(k) requires. A treatment professional qualified under subsection (1)(k) must be focused on treating MT., while understanding he will be treating Tryba at some point as well, or must have been assessing MT. pursuant to court order. In the present case, M.T.'s best interest was addressed by professionals concerned primarily with Tryba, not with M.T., who were speaking, at best, as distant observers of M.T. with very limited knowledge of her, essentially none of which was firsthand.

121 Regardless of the reason for Tryba's failure to meet the requirements of section 406.5(1)(k)-and there is no question M.T.'s relocation to New York and the attitude of her mother made. Tryba's task a difficult one-we must adhere to the plain language of the statute, which allows for showing the victim's best interest only through testimony offered by specifically described professionals who have firsthand knowledge of the victim gained from treating or assessing her. Bluntly put, incarceration for child sex abusers is the expectation, and failure to meet all the requirements of the narrow probation exception, regardless of the reason for the failure, means probation cannot even be considered by the trial court.

122 Tryba met most of the requirements of the statute, but he did not meet them all. Thus, the trial court was correct in concluding Tryba did not prove by a preponderance of the evidence that he was eligible for probation consideration.

CONCLUSION

123 Tryba failed to prove, in the precise manner required by statute, that granting him probation would be in the best interest of his daughter, M.T. He failed to meet the statutory requirement that he present evidence from a treatment professional who is treating M.T. or, in the alternative, is assessing M.T. as ordered by the court. Ad hoe substitutes are legally insufficient under the statute. Therefore, the trial court correctly concluded Tryba was ineligible for probation under Utah Code Ann. § 76-5-406.5 (1999). The sentence imposed by the court was entirely proper.

1 24 Affirmed.

€ 25 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and JUDITH M. BILLINGS, Judge.

      . On the surface, a policy that affords greater leniency for sex crimes "within the family" seems irrational. A defendant who sexually victimizes a child violates an important societal taboo: Adults shall not have sex with children. A defendant who sexually victimizes a child family member violates not one, but two important societal taboos: Adults shall not have sex with children; unless they are married to each other, family members shall not have sex with each other.

      . Under subsection (1)(i), Tryba was required to show:
      [Rlehabilitation of the defendant through treatment is probable, based upon evidence provided by a treatment professional who has been approved by the Department of Corrections and the Department of Human Services under Subsection (3) and who has accepted the defendant for treatment{.]
      Utah Code Aun. § 76-5-406.5(1)@) (1999). And under subsection (1)(§), he was required to show:
      [TJhe defendant has undergone a complete psychological evaluation conducted by a professional approved by the Department of Corrections and the Department of Human Services and:
      (i) the professional's opinion is that the defendant is not an exclusive pedophile and does not present an immediate and present danger to the community if released on probation and placed in a residential sexual abuse treatment center; and
      (ii) the court accepts the opinion of the pro-fessionall.]
      Id. § The testimony of Tryba's professional witnesses was surely relevant to these prongs of the probation exception.

      . Because we resolve this case under subsection (1)(k), we need not address Tryba's arguments regarding the other two requirements which the trial court also held Tryba failed to meet.


source: Caselaw Access Project

author: JACKSON, Associate Presiding Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 239
    Cheryl HOLMSTROM, Plaintiff and Appellant, v. C.R. ENGLAND, INC., a Utah corporation; and Joseph Hyatt, an individual, Defendants and Appellees.
    No. 990354-CA.
    Court of Appeals of Utah.
    Aug. 3, 2000.

      Peter C. Collins and Walter F. Bugden, Budgen, Collins & Morton, Salt Lake City, for Appellant.
    Nelson L. Hayes, Office of General Counsel, and George T. Naegle, Richards, Brandt, Miller & Nelson, Salt Lake City, for Appel-lees.
    Before JACKSON, Associate P.J., BENCH and BILLINGS, JJ.
   OPINION

JACKSON, Associate Presiding Judge:

11 Cheryl Holmstrom challenges the trial court's denial of her requests for two jury instructions and her motions for judgment notwithstanding the verdict (JNOV) and, alternatively, for a new trial. We affirm.

BACKGROUND

12 "In reviewing a jury verdict, we view the evidence in the light most favorable to it, and recite the facts accordingly." Ortiz v. Geneva Rock Prods., Inc., 939 P.2d 1218, 1215 (Utah Ct.App.1997) (citation omitted).

3 On September 29, 1998, Joseph Hyatt, while working for C.R. England, Inc., was driving a semi-tractor (without a trailer attached) northbound on Park Street in a residential area of Salt Lake City. Park Street ended in a T-intersection at Division Lane. At the intersection, Hyatt prepared to make a right turn onto Division. He stopped behind the curb, then slowly crept straight forward and stopped with the nose of his truck protruding into the intersection. He could see better from that vantage point and observed no vehicles coming toward him on westbound Division. An S-curve started about 120 feet east on Division, and Hyatt could not see vehicles past the S-curve.

4 Hyatt had begun his turn when he saw Holmstrom about thirty feet away driving her car toward him in a westerly direction on Division. He stopped the truck, but not before at least part of his truck extended about two to eight feet into the westbound lane of Division. He was stopped for between one and two seconds before Holm-strom's car hit his truck.

. 5 Division Lane was about thirty-five feet wide from curb to curb. Parked cars were on the south side of the street, but none were on the north side of the street (westbound) adjacent to the accident seene. The police officer who diagramed the accident scene thus measured from the north curb to the edge of the cars parked along the south curb to come up with what he called "the usable portion of the road," which was about twenty-cight feet. Basing his calculations on the usable portion of the road, Holmstrom's accident reconstruction expert, Ronald Probert, testified that "the point of impact is ... two feet, one inch to the south of the usable portion center of the roadway." In other words, according to Probert, Holmstrom was "about four feet, six inches left of center" based on the usable portion of the road. Further testimony established that that would place Holmstrom's car entirely left of center, except for maybe the passenger side tires. Probert further testified that "(there is a very good likelihood" that the accident would have occurred even if Hyatt had been able to make his turn wholly in his own lane (the eastbound lane of Division). Probert also testified that, with Hyatt stopped as he was, Holmstrom could have avoided the accident by driving past him on her right in her own lane.

T6 Other testimony showed Holimstrom's perspective as she approached the point of impact. She was driving westbound through the S-curve on Division. Probert testified that drivers tended to straighten out the S-curve as they came through it-meaning they generally drove down the center of the road. Holmstrom followed that general tendency and was driving in about the center of the road when she came out of the S-curve and saw Hyatt's truck slowly turning in her direction. She did not decelerate or move to her right, but continued at her rate of twenty-five to thirty miles per hour and was distracted as she glanced 'down at the clock or the speedometer for about one-half to three-quarters of a second.

17 When Holmstrom looked up, she was about fifty-five feet from the point of impact. She realized for the first time that a potential problem existed and she might collide with Hyatt. By the time she perceived the gravity of the situation and reacted by slamming on her brakes, she was about forty-eight feet from the point of impact; however, at her rate of speed, she needed about fifty-eight feet, or one-half second more reaction time, to stop. She thus hit Hyatt. The skid marks she left before the point of impact on Division Lane were parallel to the curbs, veering neither left nor right.

T8 Holmstrom filed suit against Hyatt and C.R. England, alleging. that Hyatt's negli-genee caused the damages she sustained in the accident. After both parties presented their evidence at trial, Holmstrom proposed two jury instructions. The first presented the theory that a finding of negligence could be based on a driver's selection of an unsafe route. The trial court refused to give that instruction. The second was a "sudden peril" proximate cause instruction that Hoim-strom had changed from the uniform instruction. See Model Utah Jury Instruction 4.3 (1993). The trial court thought the proposed instruction was somewhat confusing and invited Holmstrom to try to clarify and resubmit it. Holmstrom did not raise the issue again.

T9 Holmstrom also moved for a directed verdict, arguing any reasonable juror would have to conclude that Hyatt was negligent and that his negligence was the proximate cause of Holmstrom's damages. The trial court denied Holmstrom's motion, stating "that there is enough evidence in the support of a jury verdict going either way, depending which witnesses [the jury] chose to believe."

T10 The jury returned a verdict finding Hyatt negligent, but determining that his negligence was not a proximate cause of Holmstrom's injuries. Holmstrom brought a motion for JNOV on the issue of proximate cause, along with a new trial on the remaining issues, or, alternatively, for a new trial on all the issues. The trial court denied Holm-strom's motion, ruling:

[There is substantial evidence to suggest that the defendants [sic] negligence did not play a substantial role in causing the accident and the plaintiff's injuries, and therefore the jury, applying jury instruction no. 34, could reasonably conclude that defendant's negligence was not a proximate cause of the accident and plaintiff's injuries. The record contains testimony from experts and lay witnesses suggesting that defendant's negligence did not play a substantial role in causing the accident or the plaintiff's injuries.

T11 Holmstrom appeals, arguing the trial court erred as a matter of law in refusing to give her two proposed jury instructions and to grant her motion for JNOV. She further argues the trial court abused its discretion in denying her new trial motion, which was based on the insufficiency of the evidence supporting a finding that proximate cause was lacking.

ANALYSIS

I. Unsafe Route Instruction

$12 "A trial court's decision regarding jury instructions presents a question of law, which is reviewed for correctness." Vitale v. Belmont Springs, 916 P.2d 359, 361 (Utah Ct.App.1996). However, for the trial court's refusal to give a jury instruction " '[tlo require a new trial, we must also conclude the error was prejudicial, ie., that it "tend{ed] to mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advise{d] the jury on the law."'" Id. at 363 (citations omitted; alterations in original).

1 13 Having presented evidence that Hyatt was negligent in selecting his route over another allegedly safer route for a large truck to make a turn, Holmstrom unsuccessfully asked the trial court to instruct the jury as follows: "You may find, depending on the facts and cireumstances of this case, either or both drivers negligent not only for their driving conduct itself but also, if he or she or both knew the route taken was hazardous, for taking that route." At Holmstrom's behest, we must determine whether the trial court's refusal to give this "unsafe route" instruction was incorrect.

114 Under the unsafe route rule,

a person who voluntarily chooses a dangerous path over a safe path, and who is injured as a result, is considered to be contributorilty megligent. A "choice of ways" [or unsafe route] instruction is warranted where there is evidence that the plaintiff made an unreasonable decision that exposed him to a hazard of which he knew, or reasonably should have known, and a safe course of travel existed by which he could have avoided the danger.

Robinson v. Daisy Constr. Co., No. 88-4111, 1990 WL 209321, at *4, 1990 U.S. Dist. LEXIS 17030, at *12-13 (E.D.Pa. Dec. 12, 1990) (citation omitted; emphasis added); see also 57A Am.Jur2d Negligence § 9083, at 799 (1989) ("Where a person has a choice between two courses or methods, one of which is perfectly safe and the other subject to obvious risks, and voluntarily chooses the latter and is injured, he is guilty of contributory negligence .. ..") (emphasis added).

15 Even a quick read of the definition of the unsafe route doctrine reveals the flawed logic in raising it in this case. The definition specifically applies to plaintiffs in the contributory negligence context In this case, Holmstrom seeks to apply it to hold a defendant negligent.

[ 16 Even so, Holmstrom tries to support her asserted entitlement to an "unsafe route" Jury instruction by citing to three Utah cases and an Illinois case, which she admits all involve the contributory negligence of plaintiffs who were injured as pedestrians. See Blacconeri v. Aguayo, 132 Ill.App.3d 984, 88 Ill.Dec. 231, 233, 235-36, 478 N.E.2d 546, 548, 550-51 (1985) (involving pedestrian hit by car while crossing busy street); Wightman v. Bettilyon's Inc., 15 Utah 2d 200, 201-02, 390 P.2d 120, 121 (1964) (involving pedestrian tripping on weeds growing over sidewalk); Wold v. Ogden City, 123 Utah 270, 273-75, 258 P.2d 453, 455-56 (1953) (involving pedestrian crossing trench in street); Baker v. Decker, 117 Utah 15, 18-28, 212 P.2d 679, 681-83 (1949) (involving pedestrian tripping over obstruction in apartment building hallway). Holmstrom's argument for extending this doctrine to the negligence of defendants driving vehicles on public streets is so cursory that it borders on violating our rules of appellate procedure, which require that a legal argument presented to this court "contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities [and] statutes . relied on." Utah R.App. P. 24(a)(9). She gives us no analytical tools or public policy reasons for expanding the doctrine to hold defendant-drivers negligent. - Holm-strom merely states: "There is nothing, in law or logic, and contrary to the District Court's determination, that suggests that the principle recognized in those cases (which are pedestrian cases in the contributory negligence realm) should not apply to the negligence of an operator of a motor vehicle."

[17 We initially observe that the unsafe route doctrine "is said to have a narrow seope of application, and it has been noted that many cases refuse to apply the doctrine, and suggest that it is to be applied in only the clearest cases." 57A Am.Jur.2d Negligence § 903, at 800 (1989). Our own survey of how the unsafe route doctrine has been applied in the United States confirms its narrow scope in that we found not one case in which it has been applied to a defendant or the driver of a motor vehicle (whether defendant or plaintiff), let alone to a defendant-driver. See, eg., Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680, 682 (10th Cir.1981) (plaintiff-seaman on ship); Paulus v. Corbly, 809 F.Supp. 561, 566 (S.D.Ohio 1992) (plaintiff-pedestrian in parking lot); Robinson, 1990 WL 209321, at *4, 1990 U.S. Dist. LEXIS 17030 at *13 (plaintiff-pedestrian in workplace); Connelly v. Redman Dev. Corp., 533 P.2d 58, 55 (Colo.Ct.App.1975) (plaintiff-pedestrian in parking lot); Lynn v. District of Columbia, 734 A.2d 168, 169, 172-78 (D.C.1999) (plaintiff-pedestrian); State v. Dwenger, 168 Ind.App. 90, 341 N.E.2d 776, 779-80 (1976) (same); Lindloff v. Duecker, 217 Iowa 326, 251 N.W. 698, 702 (1983) (same); Hicks v. Board of Supervisors of La. State Univ., 189 So.2d 90, 97-98 (La.Ct.App.1966) (same); Rountree v. Lerner Dev. Co., 52 Md.App. 281, 447 A.2d 902, 902-03, 905 (1982) (same); Tichenor v. Lohaus, 212 Neb. 218, 322 N.W.2d 629, 631-32, 684 (1982) (plaintiff-pedestrian on icy ramp); Dunbar v. City of Lumberton, 105 N.C.App. 701, 414 S.E.2d 387, 389 (1992) (plaintiff-pedestrian); Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344, 346-47 (1955) (same); Meadows v. Heritage Village Church & Missionary Fellowship, Inc., 305 S.C. 375, 409 S.E.2d 349, 352 (1991) (same); Moore v. Miles, 108 Utah 167, 168, 170-72, 158 P.2d 676, 676, 677-78 (1945) (involving plaintiff-pedestrian falling down hotel steps).

T 18 It is true that parties in four cases we found tried to use the unsafe route doctrine as Holmstrom has-applying it to defendants and/or drivers. However, those parties were all unsuccessful, for one reason or another. See, e.g., Cutsforth v. Kinzua Corp., 267 Or. 428, 517 P.2d 640, 642-48 (1978) (affirming trial court in defendant-driver case in disallowing alternate route allegation in complaint based on failure to state facts showing defendant owed plaintiff duty to use alternate route and in disallowing introduction of certain evidence about alternate routes, although not discussing general rule that alternate route doctrine applies only to plaintiffs in contributory negligence context); Gardner v. Phipps, 250 Va. 256, 462 S.E.2d 91, 98 (1995) (declining to decide in plaintiff-driver case "whether and under what circumstances the so-called 'choice of paths doctrine' will be applied to the choice of roads open for travel to the public" because "the evidence in this case fails to show a choice between an obviously safe road and an obviously dangerous one"); Grube v. Moths, 56 Wis.2d 424, 202 N.W.2d 261, 266 (1972) (affirming trial court in defendant-driver case in disallowing proof of "alternate-course rule," saying facts of case did not allow application of rule and quoting rule from contributory negligence case, but not stating rule did not apply because case involved vehicle or defendant instead of plaintiff-pedestrian).

[ 19 Only one case explicitly discussed and rejected the applicability of the doctrine to defendant-drivers:

[Plaintiff] ... contends that the court erred in failing to give an "alternate safe path" instruction to the jury. [Plaintiff] requested an instruction to the effect that [defendant] could be found negligent if he chose a risky course of travel when a safer alternative path was available....
[Plaintiff] has presented no authority to support the contention that the alternate safe path instruction is required in a motor vehicle case. In fact, the existence of the "safer" alternatives advanced by [plaintiff] was vigorously disputed by the parties at trial. In reviewing the matter, the trial court determined that, because it instructed the jury concerning the claimed violation of duties of turning the vehicle from a direct path, inattentive driving, and careless driving, there was no need to give an instruction involving an alternate path since that standard of care was subsumed in the instructions given. In instructing the jury in regard to the violations of a driver's duties under the Delaware Motor Vehicle Code, the Superior Court provided the jury with a correct and complete statement of the law concerning [defendant's] duty under the cireumstances of the accident. Accordingly, we find no error in the trial court's refusal to give the instruction requested by [plaintiff].

Cox v. Turner, No. 214, 1994, 1995 WL 379237, **2-3, 1995 Del. LEXIS 224, *5-7 (Del. Apr. 11, 1995); see also 57A Am.Jur.2d Negligence § 150, at 211 (1989) ("In a proper case, the jury may be instructed about certain specific circumstances and their relationship to the standard of care.... The better practice in most cases, however, may be to simply instruct the jury that the defendant was bound to exercise that reasonable care and caution which would be exercised by a reasonably prudent and cautious person under the same or similar cireumstances.").

T 20 Like the Delaware Supreme Court, we can say that no need existed to give an unsafe route instruction because "that standard of care was subsumed in the instructions given." Cox, 1995 WL 379237, at **2-3, 1995 Del. LEXIS 224, at *7. For instance, the jury in this case was instructed that drivers of any vehicle should use reasonable care to avoid endangering others and may expect others to obey the law and use reasonable care. The jury was further instructed about right-of-way laws and the duty of a driver to keep a "proper lookout" and turn only when reasonably safe. Thus, the trial court's jury instructions regarding a driver's statutory and general duties gave the jury "a correct and complete statement of the law concerning [Hyatt's] duty under the cireum-stances of the accident." Id.

121 Based on Utah law applying the unsafe route doctrine only to plaintiff-pedestrian cases involving contributory negligence, in keeping with the overwhelming majority rule in the United States, along with the sufficiency of the applicable jury instructions in this case, we conclude that the trial court correctly refused to give the unsafe route jury instruction proposed by Holmstrom.

II. "Sudden Peril" Jury Instruction

122 Holmstrom next challenges what she characterizes as the trial court's refusal to give the "sudden peril" jury instruction she modified from Model Utah Jury Instruction (MUJI) 4.83. However, our review of the record shows that Holmstrom did not properly preserve this issue for appeal.

T23 The modified instruction Holmstrom requested is as follows:

You may appropriately determine that Mr. Hyatt's negligence was a proximate cause of Ms. Holmstrom's injuries if, but not only if, you find: (1) that Mr. Hyatt negligently caused a situation of sudden peril; and (2) that Ms. Holmstrom, acting under the impulse of fear, made an instinctive effort to escape; and (8) in so doing, Ms. Holmstrom sustained injuries, even though it might now appear that Ms. Holmstrom's attempt to escape was unwise or should have been made differently.

(Emphasis added.) Meanwhile MUJI 4.3 reads:.

If you find: (1) that the defendant negligently caused a situation of sudden peril; and (2) that the person in peril, acting under the impulse of fear, made an instine-tive effort to escape; and (8) in so doing, that person sustained injuries or injured a third person, then you may find that defendant's negligence was the proximate cause of the injury, even though it might now appear that the attempt to escape was unwise or should have been made differently.

Model Utah Jury Instruction 4.3 (1998).

T 24 The trial court and Holmstrom's counsel had the following discussion about the use of the modified jury instruction:

THE COURT: Is there another way to phrase that so that, I'm not sure that I understood it when I read it what the "but not only if" does to the phrase.
MR. COLLINS: I know and I struggled with how to word it to tell you the truth.
THE COURT: What about an introductory sentence that simple [sic] spells out your concerns that this instruction is not to be considered in isolation.
THE COURT:.... Is there a way to do the introductory that kind of makes clear for the jury that is not, your case doesn't live or fall on this one instruction?
MR. COLLINS: You know and we've got to keep this thing moving. What this is going to require is a couple of minutes of me seeing what I can come up with and secing if Mr. Naegle [defendants' counsel] and I can work it out. Could I have a couple of minutes to see what I can create and see if Mr. Naegle will agree with it?
THE COURT: T'll let you do that.

125 Defendants argue that this colloquy shows that Holmstrom did not properly preserve this issue for appeal-that she never gave the trial court a chance to definitively rule one way or the other on this instruction. We agree.

126 "It is axiomatic that, before a party may advance an issue on appeal, the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon." Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct.App.1989) (emphasis omitted & added); see also Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct.App.1997) ("* '"A matter is sufficiently raised if it is submitted to the trial court, and the court is afforded an opportunity to rule on the issue." '") (citations omitted). Moreover, the party must specifically raise the issue, such that it is brought "to a 'level of consciousness' before the trial court." Hart, 945 P.2d at 130 (quoting James v. Preston, 746 P.2d 799, 802 (Utah Ct.App.1987)). This requirement "serve[s] the interests of judicial economy and orderly procedure" by not only giving the trial court a chanee to correct error, but by making the parties "crystallize issues prior to appeal." State v. Sixteen Thousand Dollars U.S. Currency, 914 P.2d 1176, 1179 (Utah Ct.App.1996). When issues are not brought to the trial court's attention in a timely manner, they are "deemed waived, precluding this court from considering their merits on appeal." Carlston, 776 P.2d at 655.

T27 During the colloquy with the trial court, Holmstrom's counsel explicitly agreed with the trial court that the proposed jury instruction's wording was confusing. Then, he offered to rework the language to make it more suitable and resubmit the instruction later. While the trial court expressed some concern over the instruction, it certainly did not conclusively rule one way or the other as to whether the instruction could be used as it was. The conversation was noncommital on both sides, with resolution of the issue left open to a future time when Holmstrom's counsel would presumably initiate the resubmission of the issue.

128 We therefore conclude that Holm-strom, through her counsel, did not present her jury instruction request "in a manner sufficient to obtain a ruling thereon." Carlston, 776 P.2d at 655. Based on the colloquy, we do not think the trial court was conscious that Holmstrom viewed its informal musings to be an unequivocal final answer. See Hart, 945 P.2d at 130. In a related vein, Holm-strom did not give the trial court a real chanee to correct possible error. See Sixteen Thousand Dollars U.S. Currency, 914 P.2d at 1179. Had the trial court thought that the colloquy marked its only chance to rule on the issue, it may have given the issue more time and thought, recognizing the potential of being overturned on appeal and the spec-tre of a new trial Finally, had the trial court and parties thought the issue was being decided once and for all, they may have taken the opportunity to provide additional and more specific legal analysis, "crystal-liz{ing]" this issue before appealing. Id. Accordingly, Holmstrom failed to properly preserve this argument for appeal.

III. .Denial of Motions for JNOV and New Trial

129 Holmstrom briefed the denial of her JNOV and new trial motions as separate issues. However, because her arguments are essentially the same for each issue, we treat them together. At bottom, Holmstrom contends that there was insufficient evidence to support the jury's finding that Hyatt's negligence was not the proximate cause of her damages. She specifically argues that evidence was lacking as to the "substantial role" component of proximate cause.

[Ain insufficiency-of-the-evidence based challenge to a denial of either [a JNOV or new trial] motion is governed by one standard of review: we reverse only if, viewing the evidence in the light most favorable to the party who prevailed, we conclude that the evidence is insufficient to support the verdict.

Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). Because Holmstrom's challenge to the denial of her motions attacks the sufficiency of the evidence, she " 'must marshal all the evidence supporting the verdiet' and then show that the evidence cannot support the verdict." Id. at 17-18 (quoting Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 58 (Utah 1986)).

T30 Holmstrom has quite admirably fulfilled her marshaling duty, filling her brief with five pages of "EVIDENCE CONCEIVABLY IN SUPPORT OF THE VERDICT," appropriately cited to the record. With Holmstrom conceding that such a profusion of evidence supports the verdict, it is somewhat difficult to understand her assertion that there is "literally no evidence which would support a reasonable jury's determination that there was not a proximate cause connection between Mr. Hyatt's negligence and the sustaining of injuries and damages by Ms. Holmstrom." - However, we will give her the benefit of the doubt and a full analysis resolving her concerns.

A. Relationship between Negligence and Proximate Cause

T31 Before addressing the sufficiency of the evidence, we address a basic misconception held by Holmstrom. She intimates that a finding of negligence necessarily leads to a finding of proximate cause here, stating her "research has unearthed no Utah or other case involving factual situations and issues like this one, and in which a jury found a defendant to be negligent, in which a jury's no-proximate-cause determination has been upheld." She apparently contends that a finding of proximate cause necessarily follows a finding of negligence except in cases involving "situations where all damages are in dispute (as in situations involving low-speed rear-end collisions and/or situations involving pre-existing medical conditions where the medical evidence is mixed), and in multi-actor and substantial passage-of-time situations."

132 Holmstrom completely misapprehends the law here. In every case, negligence and proximate cause are "separate and distinet factors in assigning tort liability." 57A Am.Jur.2d Negligence § 488, at 421 (1989). Proof of negligence is never "enough by itself to establish lability; it must also be proved that negligence was a cause of the event which produced the injury or harm sustained by the one who brings the complaint." Id.; see also Buck v. Union Elec. Co., 887 SW.2d 430, 433 (Mo.Ct.App.1994) ("It is axiomatic that the mere fact that injury follows negligence does not necessarily create liability. Plaintiff must also prove the negligent conduct ... was a[] ... proximate cause of his injury."). As our supreme court has stated, "Certainly there is no inconsistency necessary or otherwise, between findings of negligence and no proximate cause." Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1083 (Utah 1985).

183 And, the fact that Holmstrom's research unearthed no cases similar to this one in which an appellate court upheld a finding of negligence and no proximate cause is not compelling. First, "[dJetermination of substantiality and proximity of the causal relationship between negligence and injury is dependent upon the particular facts of each case and it is seldom that one decision controls another." Buck, 887 SW.2d at 423 (applying "relevant principles of law" to seru-tinize specific facts of case instead of comparing to other factual situations).

{34 Second, the three cases Holmstrom cites to support her position that proximate cause follows negligence are each factually distinguishable. See Hardison v. Bushnell, 18 Cal.App.4th 22, 22 Cal.Rptr.2d 106, 106-09 (1993) (involving traffic accident in which defendant completely obstructed plaintiff's lane, accident occurred entirely in plaintiffs lane, and plaintiff never left his lane of travel); Murteza v. State, 7 Conn.App. 196, 508 A.2d 449, 450-51, 458 (1986) (involving traffic accident with no other cause but defendant's negligence; jury verdict still not overturned because damages not sufficiently proven); Rogers v. DiChristina, 195 A.D.2d 1061, 600 N.Y.S.2d 402, 403 (1993) (involving two separate traffic accidents with two separate defendants, thus falling in multi-actor category of which Holmstrom speaks).

T35 Finally, we were able to find three two-party traffic accident cases-including one from Utah-factually similar to the one at issue (Le., not involving significant damages disputes; low-speed, rear-end collisions; pre-existing medical conditions; multiple actors; or substantial passage of time between the negligent act and the damages) in which the no-proximate-cause determination was upheld, despite the defendant's negligence. See Tennyson v. Brower, 823 F.Supp. 421, 423, 424 (E.D.Ky.1993) (affirming jury's verdict that, although defendant-trucker was negligent per se for parking on highway shoulder, he was not proximate cause of plaintiff's damages sustained when plaintiff fell asleep while driving and hit defendant's truck); Ten Hagen v. DeNooy, 563 N.W.2d 4, 6, 9 (Iowa Ct.App.1997) (upholding jury verdict that defendant-driver was negligent in encroaching upon plaintiff's lane-as Hyatt did in case at bar-but finding that negligence "was not a 'substantial factor' in producing the damages and, therefore, it was not a proximate cause of damages sustained by plaintiff"); Sumsion v. Streator-Smith, Inc., 108 Utah 44, 47, 49-52, 182 P.2d 680, 681, 682-83 (1943) (affirming grant of defendant's non-suit motion and deciding that, even if fact finder had found defendant-driver negligent in failing to signal, plaintiff had not shown proximate cause between failure to signal and damages).

B. Sufficiency of the Evidence

$36 The crucial question now is whether the evidence in this case supports the jury's finding that Hyatt's negligence was not a proximate cause of Holmstrom's damages. We specifically focus on whether Hyatt's negligence "played a substantial role in causing the injuries."

137 While the jury's special verdict form shows that the jury found Hyatt negligent, it does not specify which of Hyatt's actions were negligent. Our appraisal of the evidence suggests the jury may have found Hyatt negligent for violating Holmstrom's right of way, failing to keep a proper lookout, or choosing an unsafe route. We now catalog the evidence in favor of the jury's verdict that none of these potentially negligent actions were a substantial factor in causing Holmstrom's damages.

38 Hyatt testified that: he did not block Holmstrom's lane and that she could have driven around him on her side of the road; Holmstrom's car was left of the center of the road, more in his lane; he stopped when he saw Holmstrom, two to three seconds before impact, and tried to reverse his truck; at the time of impact, only his front driver's side tire was in plaintiff's lane; and the collision occurred partly in his lane.

T 39 Ronald Probert, plaintiff's accident re-constructionist, testified that Holmstrom looked down at her instrument panel as she approached Hyatt; Hyatt's truck was moving slowly and was easy for Holmstrom to see; Holmstrom needed about fifty-eight feet to react to avoid the accident, but did not physically react until she was forty-eight feet away; Holmstrom needed about one-half see-ond longer to react to avoid the accident; it is plausible that Hyatt was stopped for a couple of seconds before impact; if Hyatt was stopped, Holmstrom could have gone around him in her own lane; calculating from the usable portion of the road, Holmstrom's car was four feet, six inches left of center at the point of impact; under the facts stated in the police report, Holmstrom had about a ten-foot wide space in her own lane to get around the truck, while Holmstrom's car was only about five-and-a-half feet wide; and "[tlhere is a very good likelihood" that the accident would still have occurred even if Hyatt had remained entirely in his own lane.

140 Edward France, plaintiffs "human factors" expert, testified that: the accident may have been caused by Holmstrom being distracted as she glanced at her instrument panel for about one-half to three-quarters of a second, with only three-and-a-half seconds until impact; at fifty-eight feet from the point of impact, Holmstrom had time to and could have chosen to either stop or go around Hyatt to her right; and Hyatt may have been stopped when Holmstrom hit him.

{41 Raymond Gurule of the Salt Lake City Sanitation Department, who had been driving through the neighborhood doing his trash pickup route at the time of the accident, testified that a car could have gotten around Hyatt in the westbound lane. James Johnson, Holmstrom's former boyfriend, testified that Holmstrom's car was partially left of center at the point of impact.

142 Holmstrom testified that: she possibly glanced at the clock or speedometer while approaching Hyatt's truck; she did not remember slowing or moving to the right side of the road upon seeing Hyatt's truck; and she may have been over the center line as she neared the truck.

143 Dr. Ronald Wooley, Hyatt's accident reconstructionist, testified that from the time Holmstrom first saw Hyatt's truck moving slowly, she had ample time to react and avoid the truck by either stopping or steering to the right; with the amount of time available to Holmstrom to react and avoid before the accident, the accident should never have happened; Holmstrom could see Hyatt before he could see her and there was never a time during which the truck would not have been obvious to Holmstrom; Holm-strom should not have glanced at her instrument panel when approaching the truck, squandering a second, when it would have taken her only a half second longer than she ended up with to completely stop; Holm-strom's judgment was erroneous in not tracking the truck until it stopped and yielded; Holmstrom was traveling at about 27.7 miles per hour when she started braking and 21.3 miles per hour at impact; there was no sign that Hyatt's truck was still moving when Holmstrom hit him; Holmstrom was traveling straight and in the middle of the road when she hit Hyatt; by traveling in the center of the road, Holmstrom delayed Hyatt's ability to see her; and Holmstrom had nine to eleven feet to Hyatt's right in which to pass him.

44 Salt Lake Police Officer Reed Garff, who investigated the accident, testified that: Holmstrom was not paying attention to where she was going because she was watching her clock as she approached Hyatt's truck; he did not recall seeing any garbage cans along the westbound lane of Division near the accident seene; Holmstrom's skid marks were parallel to the edges of the road, going straight; it appeared to him that Hyatt's truck was stopped when hit; Holm-strom's car was considerably left of the center of the usable roadway when the accident occurred; and Hyatt tried to prevent the accident by stopping and trying to reverse his truck.

45 Holmstrom has not attacked the ered-ibility of these witnesses. She simply argues that this sizable body of testimonial evidence does not support the verdict that Hyatt's negligence was not the proximate cause of- or, more specifically, did not play a substantial role in causing-her damages. We disagree.

146 In analyzing the evidence and inferences, we must focus on what the term "substantial role" entails.

The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called "philosophic sense," yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

Restatement (Second) of Torts § 481 emt. a (1965). Further, the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. Id. $ 482(1); see also W. Page Keeton, Prosser and Keeton on the Law of Torts § 41, at 268 (5th ed. 1984) ("[Nlo case has been found where the defendant's act could be called a substantial factor when the event would have occurred without it. ...")}; 57A Am.Jur.2d Negligence § 464, at 444 (1989) ("[Aln actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.... The proximate cause must be, at the least, something without which the event would not happen.").

T 47 Regarding the potential that the negligence at which the jury verdict was directed was a violation of Holmstrom's right of way and/or failing to keep a proper lookout, the evidence shows that this accident very likely would have occurred despite those of Hyatt's possible negligent acts. In fact, Holmstrom's own expert stated as much. Even if Hyatt had remained in his own lane, the testimony supports the scenario that, after Holmstrom saw Hyatt's truck, she distracted herself by glancing down away from the road and did not veer from her course down the middle of the road or even slow down initially. Under one reading of the evidence, the accident occurred mainly on Hyatt's side of the road and due to Holmstrom's own failure to yield the right of way. Because the evidence supports the theory that the accident likely would have happened regardless of Hyatt's negligence, that negligence cannot be a substantial factor in causing Holmstrom's damages. See Restatement (Second) of Torts § 4832(1) (1965).

148 As to the potential negligence of Hyatt's choice of route, the jury could very well have found that such an action was more a eause in a " 'philosophic sense'" than in a "popular sense." Id. § 481. In other words, the accident certainly would not have occurred had Hyatt been on a completely different road, but that is more of a cause in the abstract. The jury could have used their common sense to decide that choice of route alone-when it comes to driving operational public roads in a non-negligent way-is not something that a typical reasonable person would blame for the injuries sustained in an accident. Such a cause is arguably quite remote, or "so insignificant that no ordinary mind would think of [it] as [a] cause[ ]." Id.

149 Accordingly, we conclude the trial court acted within its discretion in determining that the testimony marshaled here, together with reasonable inferences drawn from that testimony, is more than adequate to support the verdict.

CONCLUSION

1 50 We conclude that the trial court correctly declined to use the unsafe route jury instruction requested by Holmstrom. We further conclude that Holmstrom did not adequately preserve for appeal her argument about her proposed sudden peril jury instruction. Finally, because ample evidence supports the jury's finding of no proximate cause, we cannot say the trial court abused its discretion in denying Holmstrom's motions for JNOV or a new trial. Thus, the jury verdiet remains intact.

1 51 I CONCUR: JUDITH M. BILLINGS, Judge.

152 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.

      1. - Jury Instruction No. 34 reads:
      If you determine that either Mr. Hyatt or Ms. Holmstrom was negligent, then you must also decide whether that negligence was a "proximate cause" of any of Ms. Holmstrom's injuries.
      To find "proximate cause," you must first find a cause and effect relationship between any such negligence and any of Ms. Holm-strom's injuries. But cause and effect alone is not enough. For an injury to be proximately caused by negligence, two other factors must be present:
      1. The negligence must have played a substantial role in causing the injury; and
      2. A reasonable person could foresee that some injury could result from the negligence.

      . We probably could have summarily disposed of this jury instruction issue because of lack of prejudice. - After all, the jury instruction goes to the question of Hyatt's negligence (Holmstrom argues his choice of an unsafe route could be one basis upon which the jury could have found him negligent). However, the jury did find him negligent, although we cannot guess exactly which of his actions the jury targeted; it is proximate cause that remains the issue, not negligence. Nonetheless, because Holmstrom put a bit of a proximate cause spin on her argument about this jury instruction, we address it out of an abundance of caution to ensure Holmstrom that we have fully considered her arguments.

      . Contributory negligence is "[a) plaintiff's own negligence that played a part in causing the plaintiff's injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages. ® In most jurisdictions, this defense has been superseded by comparative negligence." Black's Law Dictionary 1056 (7th ed.1999).

      . Hailing back to 1917, we did find one case in which a plaintiff was allowed to offer proof that the defendant, the driver of a cab in which plaintiff was a passenger during an accident, could have chosen a safer route. See Hathaway v. Coleman, 35 Cal.App. 107, 169 P. 414, 414 (1917). However, that case did not involve the refusal to give a jury instruction as this case does. Like in Hathaway, Holmstrom was allowed to present proof that Hyatt could have chosen a safer route; the trial court here simply refused to give a specific instruction about unsafe routes. Still, because it is not at issue in this case, we do not opine regarding whether Utah law actually gave Holmstrom the right-had she been challenged-to present her proof that Hyatt had a safer route available to him.

      . Our conclusion relieves us of considering the broader question of whether the unsafe route principle remains at all viable in Utah, considering that the Legislature has discarded contributory negligence in favor of comparative negligence. See Utah Code Ann. § 78-27-37 to -43 (1996 & Supp.1999) (comparative negligence statute); 2 Comparative Negligence Manual § 64:1 (Clark Boardman Callaghan 1995) ("'The Utah legislature first adopted comparative negligence in 1973.... The intent of the legislature in passing the act was [among other things] ... to alleviate the harshness of the old common law doctrine of contributory negligence. ..."). At least one state has refused to apply the unsafe route principle-even to a plaintiff-pedestrian-since replacing contributory negligence with comparative negligence. See Chlebowski v. United States, 548 F.Supp. 1221, 1223 (W.D.Pa.1982) ("[Dlefendant relies on the so-called 'choice of paths' doctrine which, it asserts, bars plaintiff from recovery as a matter of law. ... Defendant overlooks however what the ... cases make clear. The 'choice of paths' doctrine is merely a form of contributory negligence.... - Contributory negligence has been abolished in Pennsylvania and a comparative negligence system installed in its place. For this reason, the choice of paths doctrine does not bar plaintiff's recovery.") (citations omitted). But see Morgan v. McCrory, No. 02A01-9604-CV-00072, 1997 WL 266816, at *1, 2-3, 1997 Tenn.App. LEXIS 343, at *4, 9-10 (Tenn.Ct.App. May 20, 1997) (allowing use of unsafe route principle to bar plaintiff's recovery under comparative negligence regime).

      . As recited in footnote one, Jury Instruction Number 34 outlines the definition of proximate cause. The parties do not appear to contest the existence of a cause and effect relationship between Hyatt's negligence and Holmstrom's damages or the foreseeability of the damages. For all practical purposes, they focus exclusively on the requirement that "[the negligence must have played a substantial role in causing the injury." We thus follow their lead and, based on our analysis, need not consider the other elements of proximate cause anyway.

      . Hyatt's possible failure to keep a proper lookout could not have been a substantial factor apart from its association with failure to yield the right of way. After all, if Hyatt had remained in his own lane throughout his turn, despite the other possibly negligent act and under the scenario supporting the jury verdict, the accident would likely have happened anyway because Holmstrom was well over the center line of the usable portion of the road and would have struck Hyatt whether he saw her immediately or not.


author: GREENWOOD, Presiding Judge: ORME, Judge

text:
    2000 Utah Ct. App. 241
    Jeannine PERRENOUD and Linda Jenkins, Plaintiffs and Appellants, v. Lila Ann HARMAN and Lloyd Mitchell, Defendants and Appellees.
    No. 981721-CA.
    Court of Appeals of Utah.
    Aug. 3, 2000.

      Scott B. Mitchell, Salt Lake City, for Appellants.
    Randall L. Skeen and Todd R. Mecham, Cook, Skeena & Robinson, LLC, Salt Lake City, for Appellees.
    Before GREENWOOD, P.J., and DAVIS, and ORME, JJ.
   OPINION

GREENWOOD, Presiding Judge:

1 1 Plaintiffs, Jeannine Perrenoud and Linda Jenkins, appeal the trial court's grant of summary judgment in favor of defendants and dismissal of their complaint. Plaintiffs allege Rhoda Thurber converted trust assets for the use of the defendants, two of her natural children, and breached her fiduciary duty as trustee.

BACKGROUND

T2 Joseph and Rhoda Thurber executed a Declaration of Trust on April 1, 1980 and conveyed a house and various personal property into the trust. The Thurbers listed their children as beneficiaries of the trust-the parties in this action. Plaintiff, Jeannine Perrenoud, is the natural daughter of Joseph Thurber, while plaintiff Linda Jenkins and defendants Lila Ann Harman and Lloyd Mitchell are the natural children of Rhoda Thurber. The Thurbers recorded the trust and a quit-claim deed for the real property on April 14, 1980.

T3 Mr. Thurber died on August 5, 1992, and pursuant to the trust's provisions, Ms. Thurber became sole trustee of the trust. On August 15, 1992, Ms. Thurber conveyed the real property in the trust to her granddaughter Holli Bezzant and her husband Robert. Holli Bezzant is defendant Har-man's daughter. The Bezzants executed a Promissory Note, agreeing to make monthly payments of $612 to Ms. Thurber until the purchase price was paid in full.

T4 On June 29, 1992, Ms. Thurber executed a Last Will and Testament and a second trust that revoked all prior testamentary instruments. Ms. Thurber died on December 22, 1996. Jenkins, Mitchell, and Harman are the heirs of Ms. Thurber's estate named in the petition for probate. Pursuant to Ms. Thurber's will, Harman and Mitchell have received the $612 monthly payments on the Bezzants' promissory note.

15 Plaintiffs filed their complaint on September 4, 1997 against Harman and Mitchell for illegally exercising dominion and control over the trust res. Plaintiffs filed a motion for partial summary judgment and defendants filed a cross-motion for summary judgment. After a hearing, the trial court granted defendants' cross-motion and dismissed plaintiffs' complaint with prejudice. Plaintiffs filed this timely appeal.

STANDARD OF REVIEW

T6 Summary judgment under rule 56 is appropriate "only if 'there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law.'" In re Estate of West, 948 P.2d 351, 353 (Utah 1997) (alteration in original) (quoting Utah R. Civ. P. 56(c). "The case as it comes to us therefore presents only issues of law, and we afford no deference but review it for correctness." Id.

ANALYSIS

T7 The issue before us is whether Ms. Thurber had the legal capacity under state law or the terms of the trust to convey property out of the trust after the death of Mr. Thurber. Both parties concede that our supreme court's decision in In re Estate of West, 948 P.2d 351 (Utah 1997), is controlling. Not surprisingly, the parties differ in their reading of West, each claiming it clearly supports their position. Defendants claim that West is directly on point and supports the trial court's grant of summary judgment in their favor. Plaintiffs contend that West is distinguishable because certain provisions of the Thurber trust are different than the West trust. Specifically, plaintiffs point out two differences to demonstrate the trial court erred in granting summary judgment: (1) in the Thurber trust, the phrase "upon the death of the survivor of us" comes after the beneficiaries are listed, rather than before the beneficiaries are listed as in the West trust; and (2) the Thurber trust contains an addendum which states, "i}f one of the above listed should be deceased, the beneficiaries cannot be changed."

18 Analyzing the trust in West, the supreme court found three questions determinative; we find them equally applicable to this case and address them accordingly: (1) did the trust authorize the trustees to revoke the trust by selling or encumbering the trust res; (2) upon the death of one of the settlors, did the other become sole trustee and succeed to all the powers which previously belonged to them as joint trustees; and (8) did the surviving settlor, as sole trustee, owe the listed beneficiaries a fiduciary duty to manage the trust for their benefit. See id. at 3583-54.

19 Paragraph 8 of the Thurber trust is identical to paragraph 5 of the trust in West and states:

We reserve unto ourselves the power and right at any time during our lifetime to amend or revoke in whole or in part the trust hereby created without the necessity of obtaining the consent of any beneficiary and without giving notice to any beneficiary. The sale or other disposition by us of the whole or any part of the property held. hereunder shall constitute as to such whole or part a revocation of this trust.

Id. at 354. The supreme court determined that the first sentence allowed the settlors to amend or revoke the trust. The second sentence, which is critical in both cases, empowered the trustees to sell or dispose of property owned by the trust because title to the property was in the trustees. See id. The court stated that while "it is not clear that the surviving sefflor may revoke the trust, the surviving trustee clearly may work a revocation by selling or disposing of the property." Id. Thus, the trust provides two ways of revoking the trust-the settlors may jointly do so, or the trustees, acting jointly or as the surviving trustee, may do so.

{10 Next, the supreme court addressed whether the surviving trustee succeeded to all the powers previously belonging to the joint trustees. Under the Utah Uniform Probate Code, "[ilf two or more trustees are appointed to perform a trust, and if any of them ... having accepted, ceases to be a trustee, the surviving or remaining trustees shall perform the trust and succeed to all the powers, duties, and discretionary authority given to the trustees jointly." Utah Code Ann. § 75-7-405(2) (1998). The trust in West contained a similar provision which stated: "In the event of the physical or mental incapacity or death of one of us, the survivor shall continue as sole Trustee." West, 948 P.2d at 354. Based on these two provisions, the supreme court concluded that "any rights given to [the] co-trustees could be exercised by the survivor of them as sole trustee." Id.

111 Plaintiffs argue that West is distinguishable because the Thurber trust limits the power of the surviving trustee. Both trusts provide that the surviving trustee "shall continue as sole trustee upon the death or incapacity of the other." In West, the court specifically noted that the use of the plural pronoun "us" did not limit the surviving trustee's power: "Otherwise, a sole trustee would have less power than the joint trustees held. That would be illogical, as nothing in the trust instrument denies to a sole trustee any of the powers possessed by the joint trustees" Id. (emphasis added). An addendum to the Thurber trust states: "If one of the above listed should be deceased the beneficiaries cannot be changed." Plaintiffs argue this restriction of the surviving trustee's power distinguishes it from West because the trust in West contained no similar provision. Plaintiffs further maintain that they and the other named beneficiaries became present rather than contingent beneficiaries upon execution of the trust, pursuant to the addendum language. Thus, according to plaintiffs, the addendum caused the trust to become irrevocable upon the death of one of the trustees. We do not agree.

T12 Like the trust in West, the Thurber trust is a revocable trust set up for the use of the trustees during their lifetimes with any remaining assets to be passed on to the named beneficiaries after the deaths of both settlors. While plaintiffs are correct that the addendum is a limitation on the surviving settlor's power, the limitation is not as far reaching as plaintiffs would have us believe.

113 Reading the addendum as plaintiffs suggest would render other provisions of the trust superfluous. Plaintiffs cite Makoff v. Makoff, 528 P.2d 797 (Utah 1974), for the proposition that the intent of the settlors must be given effect when construing a trust. However, Makoff cuts against plaintiffs' argument as much as it helps it:

The general rules of construction of written instruments apply to the construction of trust instruments, and those rules require a determination of the intention of the settlor where the creation of the trust is a unilateral matter. However, in case the trust is based on a written instrument, the intention of the settlor must be ascertained from the language thereof, and the court may not go outside of the language in an effort to give effect to what it thinks the intent was. If the language is unambiguous, there is no need for wondering what the true intent may have been, and parol evidence is inadmissible to vary the terms set out. However, in ascertaining the intention of the settlor we may consider the entire instrument aided by the surrounding cireumstances existing at the time of creation of the trust.

528 P.2d at 798 (footnotes omitted). Thus, these rules of construction require us to consider the "entire instrument" in determining the effect of the addendum.

114 As in West, the Thurber trust contains express provisions giving the surviving trustee the power to revoke the trust. For example, the trust states in paragraph five: "Upon the death or legal incapacity of one of us, the survivor shall continue as Sole Trustee." Furthermore, paragraphs two and three reserve the right to encumber or sell trust assets using the language "[wle reserve unto ourselves the power and right." As noted previously, the reference to the trustees using the plural "us" does not limit the power to only the joint trustees, but rather applies to the joint trustees or the sole surviving trustee. See West, 948 P.2d at 354. On this issue, the West court concluded:

It defies common sense that a couple creating a revocable inter vivos trust naming themselves as trustees would deliberately preclude themselves from fully utilizing the property for their own benefit while both or either one of them was alive, particularly when it appears that the purpose of this form-book trust document may have been simply to avoid probate.

Id. Thus, the only way the addendum can be read in harmony with the rest of the trust is that it only limited the survivor in his or her capacity as a settlor from changing the beneficiaries. In other words, as the surviving trustee, Ms. Thurber could not change the beneficiaries, but she retained the power to sell and encumber trust assets during her lifetime.

{15 In West, the supreme court determined that the surviving trustee of the revocable inter vivos trust was also the sole present beneficiary of the trust. See id. at 855. The court found that the trust was established initially for the benefit of the set-tlors/trustees. See id. The trust in West contained a provision allowing the trustees to collect rent or income from the trust property for their exclusive benefit. See id. Additionally, the trust in West stated that the property was held in trust for the beneficiaries "on the date of death of the survivor of us." Id. at 355-56. Thus, the court determined that the listed beneficiaries' "vested rights are subject to divestiture and will not ripen until the death of the surviving settlor." Id. at 356. In West, the surviving trustee conveyed the real property out of the trust for his own use and benefit,. The court concluded that the trustee

could sell or dispose of the property as he saw fit. This involved no breach of his fiduciary duty since he was at that point the sole beneficiary. Because his conveyance of the property out of the trust as the sole trustee worked a termination of the trust ..., no trust existed at his death, and the children's contingent interest in the terminated trust avails them nothing.

Id.

116 Like the trust in West, the Thurber trust has a provision allowing the trustees to collect rent and income from trust property. Additionally, the provision allowing the trustees to amend or revoke the trust states that the trustees need not obtain "the consent of any beneficiary." Finally, the Thurber trust also has the identical "[ujlpon the death of the survivor of us" provision.

1[ 17 Plaintiffs argue that the Thurber trust is distinguishable because the "upon the death of the survivor" language comes after the beneficiaries are listed, rather than before it as in the West trust. Thus, plaintiffs argue that the beneficiaries became vested present beneficiaries on the date the trust was executed, April 1, 1980, and the joint trustees would have owed the beneficiaries a fiduciary duty to manage the trust for their benefit while both Mr. and Ms. Thurber were alive. In other words, the joint trustees would have needed the consent of the beneficiaries to revoke the trust during their lifetime. As pointed out earlier, however, paragraph three of the trust expressly states that the trustees do not need to obtain the consent of the beneficiaries, nor are they required to give the beneficiaries notice of any revocation or amendment. Plaintiffs' reading of the trust is at odds with the clear language of the trust. The major provisions of the trust establish that it was designed to be an inter vivos revocable trust for the benefit of the trustees during their lifetimes. See id. at 355.

118 As such, the listed beneficiaries were only contingent beneficiaries subject to divestiture. Because the children were not present beneficiaries, Ms. Thurber owed them no fiduciary duty to manage the trust for their benefit. Accordingly, Ms. Thurber was entitled to convey the house to the Bezzants. Because her conveyance of the house removed it from the trust, the income Ms. Thurber received was properly distributed according to her will, rather than to the trust beneficiaries.

CONCLUSION

{19 Under West, the Thurber trust is a revocable inter vivos trust. As such, Ms. Thurber, as sole surviving trustee and sole present beneficiary, was entitled to convey or encumber the trust assets in whatever manner she desired. Plaintiffs' reading of the trust document is at odds with our supreme court's decision in West and with the plain meaning of the trust itself, and is therefore unavailing.

1 20 Accordingly, the trial court's grant of summary judgment is affirmed.

21 I CONCUR: JAMES Z. DAVIS, Judge.

ORME, Judge

(dissenting):

[22 If the settlors of the trust had simply signed the preprinted form they started out with, I would have no problem with the majority opinion. However, in this case the settlors specially added to the preprinted form several new provisions in an effort to set out their own unique intent in creating the trust. These typewritten additions are the essence of the intended trust arrangement and, when inconsistent, supercede the preprinted provisions. Cf. Copper State Leasing Co, v. Blacker Appliance & Furniture Co., 770 P.2d 88, 90 (Utah 1988) ("If a printed form is modified by inserted words in writing or otherwise, the inserted words 'take precedence over the printed matter.'") (citation omitted). When taken in conjunction with the rest of the document, they set out quite clearly the intent of the settlors when they created the trust. Two of the added provisions state:

If the home is sold the money is to be put into a trust, designated "the Thurber Trust", to be drawn out at 20 [percent] per year.
If one of the above listed [ie., Mr. or Mrs. Thurber] should be deceased, the beneficiaries cannot be changed.

123 Considering the entire instrument, with appropriate emphasis on the provisions specially added by the Thurbers, their intent is apparent. See Makoff v. Makoff, 528 P.2d 797, 798 (Utah 1974) ("[In ascertaining the intention of the settlor we may consider the entire instrument aided by the surrounding circumstances existing at the time of creation of the trust."). As the trial court aptly observed, "the parties wanted to set up a trust that would not be changed after one died. I mean, I read that as the intent of the language where it says, 'If one of the above listed should be deceased, the beneficiaries cannot be changed."" That intent is manifest, and I cannot imagine that the settlors intended to countenance the kind of legerdemain sought to be perpetrated here, whereby wearing her settlor's hat the surviving Mrs. Thurber could not write any of the children out of the trust, but by putting on her trustee's hat she was entirely free to transfer trust assets to some children. at the exclusion of others. I assume it would be no comfort to Mr. Thurber that his widow subverted their mutual intent acting as a trustee rather than as a settlor.

"f 24 The conclusion reached by the majority opinion is premised on In re Estate of West, 948 P.2d 351 (Utah 1997), where the same or a similar form, unchanged by the settlors, was in issue. See id. at 354. West held that any surviving trustee " 'succeed{s] to all the powers, duties, and discretionary authority given to the trustees jointly." Id. (quoting Utah Code Ann. § 75-7-405(2) (1993)). The majority's reliance on West is misplaced for two reasons. First, West deals only with the retained powers of a surviving trustee-not the powers of a surviving settlor who created the trust jointly with another, for particular purposes, and must remain true to the intent of that instrument.

[ 25 Second, as recognized in West, a surviving trustee's powers, duties, and discere-tionary authority are limited if something "in the trust instrument denies to a sole trustee any of the powers possessed by the joint trustees." Id. The settlors in this case, agreeing while they were both alive to treat all of their children equally, did intend to significantly limit the survivor's prerogatives with their added language, clearly distinguishing our situation from the facts in West, where the preprinted form was not altered.

126 The trust instrument was intended to accomplish three things: first, to create a trust in order to avoid probate; second, to set it up in a way that the trust assets were fully accessible to the settlors during their lifetimes; and third, to ensure that after the death of one of the settlors, their four children would share equally in the assets of the trust by restricting the survivor from benefiting one child at the expense of another. I believe this third purpose is only heightened in the case of the primary trust asset, the residence, in view of the added provision specially restricting the dissipation of proceeds from the home's sale.

127 Mrs. Thurber went awry in her duty in two respects. First, the trust instrument required that if the house was to be sold, which occurrence is the cause of the present dispute, "the money is to be put into ["the Thurber Trust"]." This never occurred. Second, the provision that the beneficiaries not be changed after the death of either settlor made it apparent that the intent of the Thurbers was to ensure that all the children were to benefit equally from the home or its proceeds. Instead, Mrs. Thurber benefited her "favorites" at the expense of the other children.

128 Upon Mr. Thurber's death, Mrs. Thurber retained the power, as trustee, to deal as she pleased with the res of the trust, so long as she did not disadvantage or prefer one contingent beneficiary over another. Because Mrs. Thurber sold the house in a manner and to a purpose inconsistent with the terms of the trust instrument, she violated her duty as a trustee Because the Thur-bers' mutual intent as expressed in the trust instrument should be given effect, I would reverse the summary judgment in favor of defendants and remand with instructions to grant plaintiffs' motion for partial summary judgment.

      . The relevant facts are undisputed by the parties.

      . In their brief, plaintiffs concede the trust is revocable and state that "only the second and third of the questions posed by the West court are at issue in the case at bar."

      . - While plaintiffs argue that Mr. Thurber did not intend to allow Ms. Thurber to deny his daughter a share of any remaining trust assets, it is equally clear that Mr. Thurber did intend to create an inter vivos revocable trust for the use and benefit of himself and his wife during their respective lifetimes. This court is unable to rewrite the trust to make it into something which it is not, ie., an irrevocable trust. Cf. Provo City Corp. v. Nielson Scott Co., Inc., 603 P.2d 803, 806 (Utah 1979) (holding "court will not rewrite an unambiguous contract"); Dalton v. Jerico Constr. Co., 642 P.2d 748, 750 (Utah 1982) (holding court will not rewrite contract on basis of equitable principles). We are bound to interpret the language the parties used, and to give effect to all provisions contained in the instrument. See Makoff, 528 P.2d at 798.

      , We respectfully disagree with our dissenting colleague that the trust allows Ms. Thurber to use the trust res "as she pleased ... provided she did not disadvantage or prefer one contingent beneficiary over another." The result of such a conclusion is that the surviving trustee's duties are impossibly unclear. It is evident under West that once Ms. Thurber disposes of trust assets she has permissibly revoked the trust. The theory espoused in the dissent, however, would result in a trust that is only partially revocable by the surviving trustee, contrary to West, which rejected that view by reversing this court's original opin-fon in the West case. See West, 948 P.2d at 356, rev'g In re Estate of West, 915 P.2d 504, 507 (Utah Ct.App.1996) (holding surviving trustee could not unilaterally revoke trust and had fidu-clary duty to manage trust for benefit of designated beneficiaries).

      . The trust contained an additional addendum which stated: "If the home is sold the money is to be put into a trust, designated 'The Thurber Trust', to be drawn out at 20 per cent Per Year." Plaintiffs fail to even refer to this provision, let alone argue how it should be interpreted. We therefore do not address it, although the dissent refers to it as bolstering the theory Ms. Thurber could not act as she did.

      . We also observe that footnote three of the dissent theorizes that if Zions Bank had been named as trustee it could not, upon Ms. Thurber's death, distribute the trust res to only two of the children. We agree. But that is not what happened in this case. Ms. Thurber removed the house from the trust during her lifetime, as she was allowed to do as sole surviving trustee. As such, the trust beneficiaries had no claim to the house because it was no longer part of the trust res when Ms. Thurber died. Even if we do not like the result, it is mandated by West's holding that named beneficiaries of a revocable trust are entitled to receive trust proceeds only if they survive both settlors and only if the assets remain in the trust. See West, 948 P.2d at 355-56.

      . Contrary to the majority's assertion in footnote 3 of the main opinion that it would be rewriting the trust, making it an irrevocable one, if it were to refuse Mrs. Thurber the right to deny two of the children a share of any remaining trust asset, the reality is that such a refusal would fulfill the seitlors' original intent rather than alter it. Their intention was that the trust be regarded as revocable to benefit the surviving settlor, but not to benefit one of the children over the others.

      . Mrs. Thurber cannot, as a trustee, take an action that would be at odds with what she is obligated to do as a surviving joint settlor. While the parties have analyzed this case in terms of Mrs. Thurber repeatedly changing hats from trustee to settlor to beneficiary, a trustee who is also a settlor and a beneficiary actually has the difficult challenge of wearing all three hats at once, and is not at liberty to selectively remove one or the other to accomplish a personal objective contrary to the intent of the trust instrument.

      . Vision in this case is clouded by Mrs. Thurber's various roles as trustee, beneficiary, and settlor. To simplify the analysis, let us assume that Mr. and Mrs. Thurber, instead of designating themselves as trustees, designated the trust department of Zions Bank as trustee. Zions Bank would have the ability, as trustee, to sell the home during Mrs. Thurber's lifetime. Suppose for example, she had chosen to enter a retirement home and needed the proceeds from the sale of her home to pay her rent, or simply wished to travel around the world. It would be completely appropriate for Zions to sell the home on contract, as Mrs. Thurber did here, to facilitate her goals. As here, Mrs. Thurber would have the exclusive benefit of the monthly income during her life. But would Zions, as trustee, be allowed on Mrs. Thurber's death to distribute the remaining proceeds from the home only to two children, excluding the other two as Mrs. Thurber did? Absolutely not. Such action would work a de facto change in beneficiaries, contrary to the language of the trust.
      Mrs. Thurber, as trustee, would be under the same obligation that Zions would be. Her additional roles as beneficiary and settlor should not change that.