author: POHLMAN, Judge:

text:
    Julie Ann DOLE, Appellee, v. Christopher Patton DOLE, Appellant.
    No. 20160702-CA
    Court of Appeals of Utah.
    Filed October 12, 2018
    Jay L. Kessler, Magna, Attorney for Appellant.
    Michelle L. Christensen and Dillon P. Olson, Attorneys for Appellee.
    Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶1 Christopher Patton Dole and Julie Ann Dole divorced through a bifurcated decree and reserved several disputed issues for trial, including property division and child support. Following trial, the district court orally ruled on the outstanding issues, and entered its written findings and conclusions with the final decree. Christopher appeals the court's rulings with respect to income imputation, tax exemptions, and personal and real property divisions. He also appeals the court's denial of his post-trial motion seeking rulings on issues he claims were left unresolved. We affirm in part and dismiss the remainder of the appeal for lack of jurisdiction.

ANALYSIS

I. Findings and Conclusions

¶2 Christopher first argues that the district court erred in a variety of ways in rendering its final findings and conclusions of law. In particular, he challenges the court's decisions to (A) impute income to him, (B) award Julie the annual tax exemptions for their two children until they reach the age of majority, and (C) divide the personal and real property as it did.

¶3 We review challenges to factual findings for clear error, reversing only if the findings "are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made." Kidd v. Kidd , 2014 UT App 26, ¶ 13, 321 P.3d 200 (quotation simplified). We review the court's interpretation of relevant statutes for correctness. Dahl v. Dahl , 2015 UT 79, ¶ 155, --- P.3d ----. Finally, to the extent Christopher challenges the adequacy of the court's findings and whether they support its ultimate conclusions, we review that issue for correctness. Shuman v. Shuman , 2017 UT App 192, ¶ 2, 406 P.3d 258. The court must support its decisions "with adequate findings and conclusions," which include enough detail and subsidiary facts "to disclose the steps by which the ultimate conclusion on each factual issue was reached." Kidd , 2014 UT App 26, ¶ 13, 321 P.3d 200 (quotations simplified); see also Fish v. Fish , 2016 UT App 125, ¶ 22, 379 P.3d 882 ("Findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court's discretionary determination was rationally based."). In this regard, "unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made." Fish , 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified).

¶4 We address each of Christopher's contentions below and affirm.

A. Income Imputation

¶5 Christopher argues that the district court erred in imputing $55,000 annual income to him for purposes of calculating child support. In particular, he contends that the court failed to perform the income imputation test outlined in Utah Code section 78B-12-203(7)(b). Christopher claims that the court's findings do not reflect consideration of his historical income or his employment capacity and earning potential, and that the court's decision is therefore insufficiently supported. He also contends that the court improperly disregarded evidence of his disabilities. We disagree.

¶6 "Because trial courts have broad discretion to award child support, we will not disturb such decisions absent an abuse of discretion." Reller v. Argenziano , 2015 UT App 241, ¶ 15, 360 P.3d 768 (quotation simplified). "That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court's." Id. (quotation simplified).

¶7 At the time of trial, section 78B-12-203(7)(b) provided,

If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.

Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis 2012). For purposes of calculating child support, the district court imputed $55,000 of annual income to Christopher. It arrived at this figure by relying on a vocational expert's opinion and the domestic relations commissioner's findings regarding income. In doing so, the court stated that "[t]he actual income of [Christopher] is impossible to determine" due to Christopher's "dishonesty to this Court, to his unaccountable income, [and to] his failure and refusal to obtain traditional employment." Indeed, the court noted that "much of the income that [Christopher] derives through his purchase and sale of [equipment] is unaccountable."

¶8 Contrary to Christopher's assertions, the court clearly stated in its oral and written findings that it based its imputation in part on the vocational expert's opinion, which addressed the section 78B-12-203(7)(b) factors. This is sufficient to support the court's imputation decision. See Vanderzon v. Vanderzon , 2017 UT App 150, ¶¶ 65-71, 402 P.3d 219 (explaining that we may affirm a district court's imputation determination if "we can infer the necessary findings from the vocational expert's report and testimony," and affirming the court's imputation finding where "the expert's report addresse[d] all of the factors required by section 78B-12-203(7)(b)"). The vocational expert's trial testimony and report included information regarding Christopher's nearly twenty-year work history, his employment capacity, and his earning potential in light of his education and experience. Thus, the expert's report and testimony make clear that the district court considered the relevant statutory factors. See id.

¶9 Christopher also faults the court for disregarding his disabilities in rendering its imputation decision. But a court is not required to "render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling." Shuman v. Shuman , 2017 UT App 192, ¶ 6, 406 P.3d 258. Even if a court "fails to make findings" about what an appellant considers to be "a material issue, we assume the court found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it." See Widdison v. Widdison , 2014 UT App 233, ¶ 6, 336 P.3d 1106 (quotation simplified).

¶10 Here, to the extent that information about Christopher's disabilities was relevant to the court's imputation analysis, see generally Utah Code Ann. § 78B-12-203(7)(d) (providing that income may not be imputed if "a parent is physically or mentally unable to earn minimum wage" and that condition "is not of a temporary nature"), that evidence was presented during trial and specifically discussed during the vocational expert's testimony, see Vanderzon , 2017 UT App 150, ¶¶ 65-71, 402 P.3d 219. And other than flatly asserting that the court disregarded that evidence, Christopher provides no legal or factual basis from which we may presume that the court did not consider the evidence about his disabilities in imputing income to him. See Utah R. App. P. 24(a)(8) (setting out the appellant's briefing requirements, which includes providing "reasoned analysis supported by citations to legal authority and the record" to explain why the appellant "should prevail on appeal"). See generally Gerwe v. Gerwe , 2018 UT App 75, ¶ 13, 424 P.3d 1113 ("A reviewing court will not presume from a silent record that the court applied an incorrect legal standard but must presume the regularity and validity of the district court's proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary." (quotation simplified) ); Widdison , 2014 UT App 233, ¶ 6, 336 P.3d 1106. Because Christopher has not provided a basis from which we could conclude that the court failed to consider his disabilities, we presume that the court properly considered Christopher's disabilities in imputing income to him.

¶11 Accordingly, Christopher has failed to demonstrate error in the court's imputation decision.

B. Tax Exemptions

¶12 Christopher next argues that the court erred in awarding Julie the annual tax exemptions for both of their children through the age of majority. We generally review a district court's decision to award tax exemptions for abuse of discretion. See Hill v. Hill , 869 P.2d 963, 967 (Utah Ct. App. 1994).

¶13 Tax exemption awards are governed by Utah Code section 78B-12-217, which provides:

(1) No presumption exists as to which parent should be awarded the right to claim a child or children as exemptions for federal and state income tax purposes. Unless the parties otherwise stipulate in writing, the court ... shall award in any final order the exemption on a case-by-case basis.
(2) In awarding the exemption, the court ... shall consider: (a) as the primary factor, the relative contribution of each parent to the cost of raising the child; and (b) among other factors, the relative tax benefit to each parent.
(3) Notwithstanding Subsection (2), the court ... may not award any exemption to the noncustodial parent if that parent is not current in his child support obligation, in which case the court ... may award an exemption to the custodial parent.
(4) An exemption may not be awarded to a parent unless the award will result in a tax benefit to that parent.

Here, the court awarded Julie the annual tax exemptions for both children for two reasons. First, it determined that Julie bore "the bulk of the expenses of the children." Second, it determined that, given that Julie earned more than twice Christopher's income at the time of trial, the tax advantages would work in both parties' favor if Julie claimed the exemptions because of their respective tax rates.

¶14 Christopher argues that the court erred because the statute should be interpreted to mean that exemptions should be awarded "exclusively to a party [only] when the other party gives very little or nothing to the custodial parent in the way of child support or other financial benefits," which he contends are not the circumstances in this case. On this basis, he claims that the annual exemptions should have been split and that he was entitled to one of the two exemptions.

¶15 Christopher's argument requires us to construe the tax exemption statute. The "primary objective of statutory interpretation is to ascertain the intent of the legislature," and "the best evidence of the legislature's intent is the plain language of the statute itself." See Bagley v. Bagley , 2016 UT 48, ¶ 10, 387 P.3d 1000 (quotations simplified). We therefore "look first to the plain language of the statute," presuming that "the legislature used each word advisedly," and "when we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end." Id. (quotations simplified).

¶16 The plain language of section 78B-12-217 does not support Christopher's proposed interpretation or application. Rather than dictate circumstances through which a parent may gain entitlement to an exemption, section 78B-12-217 instructs that "[n]o presumption" governs the award of tax exemptions and that, instead, they must be awarded "on a case-by-case basis." Utah Code Ann. § 78B-12-217(1) (LexisNexis 2012). In this regard, courts are instructed to consider relevant factors, including two in particular: "as the primary factor, the relative contribution of each parent to the cost of raising the child"; and, next, "the relative tax benefit to each parent." Id. § 78B-12-217(2). But the statute does not instruct the court to treat the factors as vesting requirements toward a parent's entitlement to an exemption-that, for example, a parent becomes entitled to an exemption if he or she pays child support and may enjoy some tax benefit. Indeed, while the statute provides that a noncustodial parent may not be awarded an exemption if he or she is not current as to any child support obligation or will not enjoy a tax benefit, see id. § 78B-12-217(3) - (4), the statute does not provide for the inverse-that when a noncustodial parent is current on his or her child support obligation or may enjoy a tax benefit, he or she is always entitled to an award of a tax exemption. Thus, the plain language of the statute leaves the awarding of exemptions squarely in the sound discretion of the district court and its assessment of the unique circumstances of each case.

¶17 In this case, the district court appropriately followed the statute in rendering its decision. As required, it specifically considered each party's relative contributions to the cost of raising their children and the relative tax benefits to each. Because it determined that Julie bears "the bulk of the expenses of the children" and that the tax advantages to both parents are more favorable if Julie claimed both children on her taxes, it awarded both exemptions to Julie. We can discern no abuse of discretion in its decision, under these circumstances, to award them both to Julie.

¶18 Still, Christopher disagrees with the court's assessment of the evidence. He asserts that the court failed to consider the monetary support he provides to raise the children and that he would receive a "very good tax benefit if allowed to take an exemption." He argues that both his financial contributions and the tax benefit he could receive "should have been sufficient to be awarded one of the child tax exemptions." But Christopher has not pointed to anything in the record suggesting that the court failed to consider his monetary support in rendering its decision. See generally Shuman v. Shuman , 2017 UT App 192, ¶ 6, 406 P.3d 258 (stating that a district court is "not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling"). And given that the court rendered specific orders in its ruling regarding Christopher's various financial obligations for raising the children-such as for child support, insurance premiums, unpaid medical costs, and counseling fees-it is unreasonable to infer that the court then failed to consider Christopher's financial contributions to support the children in rendering its tax exemption decision.

¶19 Further, although Christopher appears to challenge the court's evaluation of the tax benefit he might receive if awarded an exemption, he has failed to challenge the court's finding that the tax advantages are more favorable to both parties if Julie received both of the exemptions. See id. ¶ 8 ("Parties challenging factual findings cannot persuasively carry their burden ... by simply listing or rehashing the evidence and arguments they presented during trial or by merely pointing to evidence that might have supported findings more favorable to them...." (quotation simplified) ); Taft v. Taft , 2016 UT App 135, ¶ 43, 379 P.3d 890 (explaining that an appellant cannot prevail when challenging a district court's resolution of a factual issue by "merely pointing to evidence that might have supported findings more favorable to [the appellant]"). His claim that he would receive a "very good" tax benefit if awarded an exemption is therefore inapposite.

¶20 Accordingly, we affirm the district court's decision to award Julie the tax exemptions for both children until they reach the age of majority.

C. Property Division

¶21 Christopher attacks several of the court's property distribution decisions. "Trial courts have considerable discretion in determining property distribution in divorce cases, and their decisions will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated." Donnelly v. Donnelly , 2013 UT App 84, ¶ 13, 301 P.3d 6 (quotation simplified). "Showing an abuse of discretion is a heavy burden, and we can properly find abuse only if no reasonable person would take the view adopted by the district court." Gerwe v. Gerwe , 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified).

¶22 Christopher challenges the court's decisions to (1) afford Julie discretion to determine what funds she will use to give Christopher his share of her retirement account; (2) allow Julie to stay in the marital home rather than ordering all four of the parties' real properties sold; (3) award Julie the majority of the marital personal property; and (4) award Julie half of certain business inventory, which he claims amounted to his "only means of income." We address each challenge below.

1. Retirement Account

¶23 Christopher argues that the court exceeded its discretion in setting the terms of Julie's retirement account division. The court awarded Christopher half of Julie's retirement account and provided that Julie would have the "sole discretion" to decide "whether or not that amount comes from her retirement account or whether it comes from the other amounts awarded in this ruling." Christopher contends that it was an abuse of discretion to permit Julie the "sole discretion" to decide from which funds to pay Christopher his portion of her retirement account. He claims that, because the parties "have been so acrimonious throughout this divorce process, giving [Julie] discretion as to how or when [Christopher] receives his portion of the retirement is tantamount to his never receiving it."

¶24 Christopher relies on the contentious nature of the divorce to claim error in the court's decision, but he has provided no reasoned analysis to suggest that it is an abuse of discretion to allow one of the parties in an acrimonious divorce the discretion to determine the source of funds to pay the other party his or her half of a retirement account. See Roberts v. Roberts , 2014 UT App 211, ¶ 36, 335 P.3d 378 (affirming the trial court's adjustment of the financial interests of the parties in a divorce action where the husband offered "little analysis" to support his argument that the court's adjustment was an abuse of discretion and where the husband did not "point to any evidence in the record to support [his] assertions" or direct the reviewing court "to any authority that is inconsistent with the trial court's analysis"). For example, Christopher does not explain why the acrimonious nature of the divorce necessarily renders his retirement account award illusory, nor does he cite any evidence in the record suggesting that Julie has exercised her discretion, or intends to exercise her discretion, in a manner that will result in him not receiving his awarded portion. See id. Thus, we conclude that Christopher has not demonstrated that no reasonable person would afford Julie the discretion to determine from which funds she will pay Christopher his share of her retirement account.

2. The Parties' Real Properties

¶25 Christopher argues that the district court erred by not ordering that all of the parties' four properties-particularly, the marital home-be sold. He claims that "the only real way to obtain the true value of the marital home was to sell it" and that, because the court did not order the parties to sell each of the four properties, he has not received his equitable share of the properties' true values.

¶26 The district court decided that each party was entitled to reside in one of the parties' properties and that the other two properties should be sold. As to the marital home, the court determined that Julie could stay in the marital home with the children and that Christopher would be entitled to one-half of the equity in the home, less amounts of liens, encumbrances, and the costs of repairs and improvements. For Christopher, Julie was entitled to half of the equity in the property he resided in, subject to the same deductions.

¶27 Although Christopher disagrees with the court's decision to allow Julie to stay in the marital home with the children, Christopher has not shown that "no reasonable person" would have awarded Julie the marital home and permitted her to live in it with the children rather than sell it. Gerwe v. Gerwe , 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified). While the district court perhaps could have ordered all of the properties sold, including the marital home, Christopher has not demonstrated that it was an abuse of the court's discretion not to do so under the circumstances. Indeed, the case Christopher primarily relies on to make his argument- Baker v. Baker , 866 P.2d 540 (Utah Ct. App. 1993) -does not stand for the proposition that a court exceeds its discretion in declining to order the sale of the marital home. Rather, in Baker we merely affirmed the district court's decision that, in the totality of the circumstances in play in that case, ordering the sale of the marital home was equitable and within the court's discretion. Id. at 544. And Christopher cannot otherwise prevail on appeal simply by arguing that he believes the court should have exercised its discretion to reach the determination he would have preferred. See Gerwe , 2018 UT App 75, ¶ 17, 424 P.3d 1113 ; Shuman v. Shuman , 2017 UT App 192, ¶ 8, 406 P.3d 258 ("Parties challenging factual findings cannot persuasively carry their burden ... by simply listing or rehashing the evidence and arguments they presented during trial or by merely pointing to evidence that might have supported findings more favorable to them...." (quotation simplified) ). Thus, we affirm the court's decision to award Julie the marital home and allow her to stay in it rather than sell it.

3. Personal Property

¶28 Christopher argues that the district court "erred by giving [Julie] almost all of the marital personal property" because the division was inequitable. Christopher contends that he was "clearly ... shortchanged" by the court's order and that he should "either receive one-half of the personal property [Julie has] or an offset therein." He states that he believes that Julie "has almost all of the personal property." But Christopher has failed to demonstrate that the court's property division was improper.

¶29 The district court awarded each party the personal "property currently in their possession." In doing so, the court provided that either party could claim property in the other party's possession that "is uniquely theirs" if they did so within thirty days of the court's ruling. The court also generally invited the parties to submit a motion for reconsideration on issues they felt were incorrect, so long as they did so within fourteen days of the court's ruling. Otherwise, there would be "no award or offset for personal property, other than [what was] designated" in the court's ruling.

¶30 Christopher never filed a request for his unique personal property after the court's order was entered. Instead, Christopher's assertion of error on appeal relies on only his "belie[f]" that Julie "has almost all of the personal property." But assertions of error based on speculation or individual belief are not sufficient to overcome the presumption that the court's personal property award was proper. See Andersen v. Andersen , 2016 UT App 182, ¶ 17, 379 P.3d 933 (explaining that "we afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity" (quotation simplified) ). Christopher has provided no citation to record evidence demonstrating that at the time of the court's ruling Julie had "almost all" of the personal property in her possession. And although Christopher submitted a list of personal property to the court and generally requested that the court divide the personal property equitably, Christopher's list did not indicate the value of each item or indicate which specific items were in either party's possession.

¶31 Moreover, the marital personal property was only one part of the court's overall adjustment of the parties' property and financial interests, and Christopher has not shown that the court's decision to award the parties the personal property in their possession was inequitable in light of the court's division of the marital property and assets in its totality. See Goggin v. Goggin , 2013 UT 16, ¶ 48, 299 P.3d 1079 (explaining that "the appropriate distribution of property varies from case to case, and the overriding consideration is that the ultimate division be equitable-that property be fairly divided between the parties, given their contributions during the marriage and their circumstances at the time of the divorce" (quotation simplified) ); Shuman , 2017 UT App 192, ¶ 18, 406 P.3d 258 (concluding that the husband had inadequately briefed his argument that the court's division of the parties' debt was inequitable where he failed to "address the broader picture of the parties' relative circumstances to demonstrate that, given the overall distribution of assets and debts and the parties' relative incomes and expenses, etc.," the court's ruling was improper).

¶32 Thus, Christopher has not demonstrated that the court exceeded its discretion in awarding the parties the personal property in their possession at the time of its ruling.

4. Business Inventory

¶33 Christopher contends the district court erred in determining that certain business inventory, which the court valued at $30,000, was marital property subject to division and in awarding Julie half its value. He generally complains that the court's decision is inequitable by failing to hold Julie to "the same standard," given that the court did not require Julie to divide with Christopher income she earned during the marriage. He asserts that the court instead should have characterized the equipment as his "income" and suggests the court therefore should have awarded all of it to him as his separate property.

¶34 In treating the inventory as marital property and thus awarding Julie half its value, the district court determined that Christopher was "dishonest in his testimony about his dealing with the property that was both marital property and non-marital property" and, as to this particular $30,000 inventory, that Christopher had "falsely claim[ed] [the equipment] had previously been sold." The court then found that Julie was entitled to a $15,000 credit or offset for it.

¶35 Christopher has not shown that the court's findings relating to the business inventory are clearly erroneous. See generally Dahl v. Dahl , 2015 UT 79, ¶ 182, --- P.3d ---- (explaining that "conclusory allegations are insufficient to overcome our highly deferential review of the district court's findings of fact"). And he has not otherwise shown that "no reasonable person" would have deemed the equipment to be marital property and awarded Julie half its value in light of the court's broad discretion to adjust and divide marital property in divorce as well as the presumption that property acquired during a marriage is marital property to be divided equally. See Gerwe v. Gerwe , 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified); see also Dahl , 2015 UT 79, ¶ 119, --- P.3d ---- (explaining the court's "considerable discretion" to divide marital property); id. ¶ 26 ("Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution."); Olsen v. Olsen , 2007 UT App 296, ¶ 23, 169 P.3d 765 (stating that "[i]n Utah, marital property is ordinarily divided equally between the divorcing spouses"). Further, his argument does not address the overall distribution of the parties' property and financial interests, and Christopher fails to show why the court's disposition of the business inventory compared to Julie's income is inequitable on the whole. See Shuman v. Shuman , 2017 UT App 192, ¶ 18, 406 P.3d 258. Accordingly, we will not set aside the district court's division of the business inventory.

¶36 In sum, we affirm the district court's rulings regarding income imputation, tax exemptions, and the property division.

II. The Post-trial Motion

¶37 Christopher next argues that the district court exceeded its discretion when it denied his post-trial motion, which sought modification of the findings and judgment. See Utah R. Civ. P. 52(b) ("Upon motion of a party filed no later than 28 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly."). In particular, he requested the court make findings and rule on the following: (1) the division of marital pictures; (2) the division of $2,000 that was in a joint bank account; (3) an offset in Christopher's favor for approximately $8,200 of business equipment Julie auctioned; (4) rental offsets of the parties' rental homes; and (5) division of other of Julie's retirement benefits. Christopher also asked the court to address its findings in support of its order requiring Christopher to pay $610 for window repair at the marital home. Christopher argued that $610 represented the cost to repair two windows while the decree suggests the court held him responsible for the cost of replacing a single "broken window."

¶38 In July 2016, Christopher filed his post-trial motion. On October 13, 2016-after Christopher filed his notice of appeal-the court denied the motion, in part because the court had already "resolved the issues raised by [Christopher]." Thereafter, Christopher did not file a new or amended notice of appeal.

¶39 A notice of appeal generally must be filed "within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). If a party files a notice of appeal after entry of judgment but before entry of an order disposing of certain kinds of motions, including a motion under rule 52(b) of the Utah Rules of Civil Procedure that is filed no later than twenty-eight days after the judgment is entered, the notice of appeal "is effective to appeal only from the underlying judgment." Id. R. 4(b)(2). In those circumstances, to appeal from the postjudgment order disposing of a rule 52(b) motion, "a party must file ... an amended notice of appeal." Id.

¶40 Christopher filed his notice of appeal after the district court entered the final decree but before the court ruled on his post-trial motion. Because he did not file a new or amended notice of appeal after the court issued its order disposing of his motion, Christopher's notice of appeal is "effective to appeal only from the underlying judgment." See id. (explaining that to appeal from a final order disposing of a rule 52(b) motion, "a party must file a notice of appeal or an amended notice of appeal"). As a result, we lack jurisdiction to consider his arguments related to his post-trial motion. See Dennett v. Ferber , 2013 UT App 209, ¶ 4, 309 P.3d 313 (per curiam) (concluding that because the appellant did not file a new or amended notice of appeal after the entry of the order resolving a similar post-trial motion, this court "lack[ed] jurisdiction to resolve any issues raised by" the appellant in the post-trial motion).

CONCLUSION

¶41 We affirm the district court's rulings with respect to income imputation, tax exemptions, and personal and real property divisions. We dismiss for lack of jurisdiction Christopher's appeal to the extent he challenges the district court's denial of his post-trial motion.

      Because the parties share a surname, we refer to them here by their first names, with no disrespect intended by the apparent informality. See, e.g. , Smith v. Smith , 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

      Christopher also claims that the court failed to determine whether he was voluntarily unemployed or underemployed, which he asserts it was required to do. However, this court has already rejected the legal assertion on which his argument depends. See, e.g. , Reller v. Argenziano , 2015 UT App 241, ¶¶ 32-33, 360 P.3d 768. That rejection stands.

      In this regard, Christopher concedes on appeal that there is "much still to be determined between the parties as to what is owed each party" regarding the property division, given that the parties are still in the process of selling their several homes, which seems to support the court's decision to vest Julie with this discretion.

      Christopher also argues that the court erred in relying on Julie's appraisal for the marital home, which he claims undervalued it. However, Christopher concedes that the court's reliance on Julie's appraisal was apparently done in a June 2017 proceeding, nearly one year after the court entered its final decree. Christopher filed his notice of appeal before that time, and he has not shown where this issue was preserved or that it falls within the scope of our jurisdiction. We therefore do not consider whether the court's decision to rely on Julie's appraisal to value the marital home was proper.

      At trial, Christopher offered a list of the marital personal property. While the list he offered did not include a value of the marital personal property, he contended that, except for jewelry and collector cards, the value of the marital personal property was around $10,000.

      Christopher's plea for equality suggests that the court treated income Julie earned during the marriage as her separate property. But Christopher identifies nothing in the record to validate that suggestion.

      Christopher claims that the ruling is vague regarding whether the district court awarded Julie half of the inventory's value because it designated the inventory as marital property or because it did so to sanction Christopher for his dishonesty. We disagree. There is no mention of sanctions in the court's findings; rather, they indicate that the court found incredible Christopher's contention that this inventory was not part of the marital estate because it had been sold. We therefore construe the court's findings regarding Christopher's dishonesty as on-the-record credibility determinations related to its assessment of whether the equipment was part of the marital estate, rather than findings to support imposing a sanction.

      Although Christopher filed an objection to Julie's proposed decree on June 13, 2016, he did not include the allegedly pending issues as a basis for an objection.

      Christopher includes his challenge to the court's ruling regarding the broken windows in the section of his brief dedicated to the issues we resolve in Part I. But Christopher's challenge is primarily directed toward the adequacy of the court's findings-an issue he raised in his post-trial motion. See generally In re K.F. , 2009 UT 4, ¶¶ 61-63, 201 P.3d 985 (requiring appellants to "object to the adequacy of the detail of the trial court's findings before appeal" and to present the issue to the trial court "in such a way that the trial court has an opportunity to rule on that issue" (quotation simplified) ). For the reasons stated above, we do not have jurisdiction to consider this challenge. To the extent Christopher contends there was insufficient evidence to hold him responsible for the cost to repair two windows, we would have jurisdiction over that challenge, but we reject his argument. Christopher testified that he broke a large picture window when he slipped off a toolbox while trying to gain access to the house. Julie testified that the basement window underneath the picture window was broken at the same time. The parties' testimony, and the reasonable inferences drawn therefrom, provided sufficient evidence to support the district court's ruling. See generally Choate v. ARS-Fresno LLC , 2016 UT App 249, ¶ 8, 391 P.3d 344 (explaining that an appellate court "will not overturn a verdict on a challenge to the sufficiency of the evidence so long as some evidence and reasonable inferences support" the fact-finder's findings (quotation simplified) ).


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Rory Dustin PENCE, Appellant.
    No. 20170026-CA
    Court of Appeals of Utah.
    Filed October 18, 2018
    Caleb Proulx, Attorney for Appellant
    Dale P. Eyre and Casey W. Jewkes, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶ 1 After separating from Defendant Rory Dustin Pence, Victim obtained a protective order against Pence. The protective order instructed Pence to "Stay Away" from the marital home but allowed him visitation with the couple's children. Visitation was to take place at Pence's parents' home, where Pence was living, which was across the street from the marital home.

¶ 2 In August 2014, Victim took the children to a city park. While they were there, Pence drove by and yelled at Victim. Afterward, Victim drove home with the children and noticed that Pence had driven to his parents' home, parked his car in front of the marital home, and made his way onto the sidewalk of the marital home. Victim then called law enforcement while she and the children waited in the vehicle. Upon law enforcement's arrival, Victim exited the vehicle and Pence began arguing with Victim and law enforcement. He "walked right up to Victim" and, as she testified, was "right in [her] face." Pence was later charged with two counts of violating the protective order-one count related to the August 2014 encounter and the second count related to similar events that occurred in September 2014.

¶ 3 Prior to trial, Pence filed a motion to dismiss, arguing that the protective order language was void for vagueness and did not give fair notice to Pence of the prohibited conduct. The trial court denied the motion. At trial, Pence requested an expanded version of an elements jury instruction, but the court denied his request. The jury convicted Pence of the count arising from the August events, but acquitted him of the second count arising from the September events. He appeals his conviction. We affirm.

BACKGROUND

¶ 4 In February 2013, Victim filed for divorce. At the same time, she also sought a protective order against Pence, which was granted in July 2013. The protective order awarded Victim temporary possession of the marital home and ordered Pence to "Stay Away" from Victim, her vehicle, job, school, and the marital home. The protective order also ordered Pence not to commit, try to commit, or threaten to commit any form of violence against Victim, including "stalking, harassing, threatening, physically hurting, or causing any other form of abuse." In addition to those provisions, the protective order specifically precluded Pence from "contact[ing]" or "communicat[ing] in any way with [Victim]," except regarding matters relating to their minor children. The court awarded Victim temporary custody of the children and gave Pence permission to have supervised parent-time. Parent-time was to take place at Pence's parents' home, where Pence was living, located across the street from the marital home.

¶ 5 In August 2014, Pence was scheduled to have parent-time with the minor children. Before the commencement of parent-time, Victim picked up dinner with the children. While she and the children were eating their dinner at a nearby park, Victim noticed Pence's blue Mustang drive by. The car slowed down, and Victim saw Pence driving the vehicle. Pence yelled something at Victim, "revved his engine and then took off."

¶ 6 After Victim and the children finished their meal, Victim drove back to the marital home with the children. When she arrived, she noticed Pence standing outside of his parents' home across the street. Victim parked her car and saw that Pence's car was parked in front of the marital home. After parking, Victim observed Pence walk across the street toward the marital home and begin pacing by his car. Victim and the children remained in her car, and Victim called law enforcement.

¶ 7 An officer (Officer) responded within minutes and met Victim and the children at her vehicle. Victim told Officer that she believed Pence was violating the protective order. Officer testified that he observed Pence "standing by the corner in front of the [marital] home." While Victim was talking to Officer, Pence approached Victim's vehicle and was "right in [Victim's] face." Pence then indicated to Officer that he was there to take the minor children for parent-time. Officer told Pence to move his vehicle, to which Pence responded, "[T]his is my house, my trees. And I park my car in the shade. I don't have to move it. And I will not." During this conversation, Pence attempted to "grab" one of the minor children, but the child refused to go with him and "pulled back."

¶ 8 After arguing with Officer and Victim, Pence stated that he "couldn't stand looking at [Victim's] face" and walked back to his parents' house across the street. After speaking to Officer for several more minutes, Victim walked the children across the street to Pence's parents' home for parent-time.

¶ 9 Pence was subsequently charged with two counts of violating a protective order-one count related to the August 2014 events and the other count related to events that took place in September 2014. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). Prior to trial, Pence filed a motion to dismiss in which he argued that the protective order language of "Stay Away" from the marital home was void for vagueness as applied. Specifically, Pence argued that the directive to "Stay Away" did not give him fair notice of what conduct was prohibited, because he was to exercise parent-time with his children at his parents' home directly across the street from the protected marital home. The trial court denied the motion.

¶ 10 Also prior to trial, Pence asked the court to use his version of the elements jury instruction. His requested instruction included additional language not found in Utah Code section 76-5-108, highlighted in paragraph 4 below, that stated,

[The jury] cannot convict Mr. Pence of [violating the protective order] unless, based on the evidence, [the jury] find[s] beyond a reasonable doubt each of the following elements:
1. That on or about August 15, 2014, within Sevier County, State of Utah, Mr. Pence was subject to a Protective Order;
2. That Mr. Pence was properly served with the protective order;
3. That the protective order prohibited the conduct Mr. Pence is accused of;
4. That the protective order described the prohibited conduct with sufficient[ ] clarity to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden by the protective order ;
5. That Mr. Pence intentionally or knowingly violate[d] the protective order.
(Emphasis added.)

¶ 11 The court denied Pence's request, concluding that it was unnecessary for a jury to find elements beyond those required by Utah Code section 76-5-108. Instead, the court gave the State's elements instruction, which stated,

Before [the jury] can convict the Defendant of VIOLATION OF A PROTECTIVE ORDER ... [the jury] must find from the evidence beyond a reasonable doubt, all of the following elements of that crime:
1. That on or about August 15, 2014, within Sevier County, State of Utah, the Defendant was subject to a Protective Order;
2. That the Defendant was properly served with the Protective Order; and
3. That the Defendant knowingly or intentionally violated the Protective Order.

Additionally, the court gave a separate mens rea instruction, with language taken directly from Utah Code section 76-2-103. This instruction defined "Intentional and Knowing Conduct" under Utah law. See id. § 76-2-103 (2012). The remaining instructions were stipulated to by the parties.

¶ 12 At trial, Officer was asked if he was able to determine during his investigation whether Pence had been served with the protective order, to which Officer answered affirmatively. Officer next testified to the service of the protective order, without any objection from Pence, stating, "We had the return of service that was served. And it was also through dispatch, advised that it had been served through the state system." Next, Officer identified State's Exhibit 6 (Exhibit 6), which was received as a single document although it was made up of seven pages. The first page of the exhibit was a ruling of the district court outlining which provisions of the protective order would expire after 150 days and which provisions would be permanent. The order stated that it was intended to be a permanent protective order. The next six pages consisted of a copy of the protective order itself. Officer then catalogued the contents of Exhibit 6, which included the protective order, and Exhibit 6 was admitted without objection.

¶ 13 At the close of the State's case, Pence filed a motion for judgment as a matter of law, arguing that there was insufficient evidence of service of the protective order. The court denied the motion. Subsequently, the jury found Pence guilty on the August 2014 count and not guilty on the September 2014 count. Pence appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Pence raises three issues on appeal. First, he contends that the trial court erred in denying his motion to dismiss, which was premised on the argument that the language in Utah Code section 76-5-108 was unconstitutionally vague as applied by the protective order. "Constitutional challenges to statutes present questions of law, which we review for correctness," Provo City Corp. v. Thompson , 2004 UT 14, ¶ 5, 86 P.3d 735, with no deference to the trial court's ruling, South Salt Lake City v. Terkelson , 2002 UT App 405, ¶ 5, 61 P.3d 282.

¶ 15 Second, he argues that the trial court erred by refusing to give his proposed jury instruction. A court's ruling on a proposed jury instruction is reviewed for correctness. State v. Maestas , 2012 UT 46, ¶ 148, 299 P.3d 892. We view jury instructions "in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." Id. (cleaned up).

¶ 16 Finally, Pence contends that the trial court erred in denying his motion for judgment as a matter of law, which was premised on the argument that there was insufficient evidence that the protective order was served upon him. "We will reverse a guilty verdict only when the evidence ... is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." State v. MacNeill , 2017 UT App 48, ¶ 51, 397 P.3d 626 (cleaned up).

ANALYSIS

I. Vagueness Challenge

¶ 17 Pence first claims that Utah Code section 76-5-108 is unconstitutionally vague as applied because the protective order issued by the district court fails to define the precise locations he is prohibited from visiting, stating only that Pence must "Stay Away" from Victim, her vehicle, job, school, and the marital home. In short, Pence asserts that the command "Stay Away" is vague. We are unpersuaded by Pence's argument.

¶ 18 The State argues that Pence's vagueness challenge is unpreserved because he challenges the language of the protective order, rather than the language of Utah Code section 76-5-108. We acknowledge that courts have long held that the vagueness doctrine only applies to statutes, not to court orders. See Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ("[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."); State v. Green , 2004 UT 76, ¶ 43, 99 P.3d 820 (same). But the record in this case is unclear regarding whether Pence is challenging the order or the statute. Thus, we first analyze the issue as if Pence had properly challenged the statute. Then, assuming without deciding that the vagueness doctrine applies to court orders in addition to statutes, we analyze Pence's argument that the language of the protective order itself was unconstitutionally vague.

¶ 19 The United States Supreme Court has stated that when a party raises both facial and as-applied vagueness challenges, "[a] court should ... examine the complainant's conduct before analyzing other hypothetical applications of the law." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). "This is because a plaintiff who engages in some conduct that is clearly proscribed by statute cannot complain of the vagueness of the law as applied to the conduct of others." State v. Tulley , 2018 UT 35, ¶ 55, 428 P.3d 1005 (cleaned up). While it is unclear from Pence's briefing which type of challenge he asserts, we analyze his argument as an as-applied challenge.

¶ 20 To survive a vagueness challenge, a statute must "(1) define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement, and (2) establish minimal guidelines that sufficiently instruct law enforcement so as to avoid arbitrary and discriminatory enforcement." Id. ¶ 54 (cleaned up). Pence has failed to establish that the statute violates either prong of this test.

A. Notice of Prohibited Conduct

¶ 21 We first examine whether the language of Utah's protective order statute is so vague that Pence would have had inadequate notice that his conduct toward Victim-including, but not limited to, yelling at Victim while driving past her, approaching Victim's vehicle aggressively, and getting "right in [Victim's] face"-had the potential to violate the protective order issued against him.

¶ 22 The statute at issue, Utah Code section 76-5-108, states, in relevant part,

Any person who is the respondent or defendant subject to a protective order, child protective order, ex parte protective order, or ex parte child protective order ... who intentionally or knowingly violates that order after having been properly served, is guilty of a class A misdemeanor, except as a greater penalty may be provided ....

Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). This statute makes clear that anyone who intentionally or knowingly violates a protective order, after being properly served, is guilty of violating the statute. Id. It specifically defines the types of protective orders and describes the act required to violate the statute. Pence cannot persuasively argue that he would not have known that yelling at Victim, approaching her, and getting "right in [her] face" would constitute acts sufficient to violate the protective order.

¶ 23 Moreover, assuming without deciding that the vagueness doctrine applies to court orders in addition to statutes, we disagree with Pence's argument that "ordinary people" would not know "what conduct is prohibited," Tulley , 2018 UT 35, ¶ 54, 428 P.3d 1005 (cleaned up), by the "Stay Away" language used in the protective order. Any ordinary person would know that a protective order directing a party to "Stay Away" from someone or something means to avoid all contact with that person or thing. See State v. Norcross , 1999 UT App 100U, 1999 WL 33244751, para. 4-5 (per curiam) (affirming a conviction for violation of a protective order where the defendant was required to "stay away" from the property because he attempted to harass the victim by riding a bicycle in the street in front of the property and stopping across the street). Because Pence's conduct toward Victim-yelling, approaching, and harassing-clearly violated the protective order, it is unnecessary to describe what degree of contact would have been appropriate between them. See Village of Hoffman Estates , 455 U.S. at 495, 102 S.Ct. 1186 ("A [party] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.").

B. Absence of Arbitrary and Discriminatory Enforcement

¶ 24 Having concluded that the statute is sufficiently definite to have notified Pence that his conduct was prohibited, we next examine whether the protective order statute encouraged arbitrary and discriminatory enforcement. See Kolender v. Lawson , 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (holding that the void for vagueness doctrine requires the legislature to "define the criminal offense ... in a manner that does not encourage arbitrary and discriminatory enforcement," and that to avoid unconstitutional vagueness, a statute must "establish minimal guidelines to govern law enforcement" (cleaned up) ); see also State v. Green , 2004 UT 76, ¶ 50, 99 P.3d 820.

¶ 25 Here, Pence argues that "[w]ith no criteria to rely upon in the [protective order] beyond the injunction to '[S]tay [A]way,' [he] was left to guess how he was to interpret the requirement to have parent-time across the street in a manner not violative of the [protective order]." This argument fails for two reasons. First, Pence's contention lacks merit because "Stay Away" is not found in the statute , but is instead found in the protective order. Unlike statutes, which apply to everyone within the jurisdiction, orders are tailored to individuals. This concept gives courts wide discretion to vary their language and degrees of severity to the needs of the case. Here, because the language Pence challenges is found in the protective order rather than the statute, the vagueness doctrine is arguably inapplicable.

¶ 26 Second, even assuming-again, without deciding-that the vagueness doctrine applies to court orders in addition to statutes, the protective order is sufficiently definite so as to discourage arbitrary and discriminatory enforcement. Pence asserts that because the protective order did not expressly set out the conduct from which he was prohibited, it was open to interpretation. We disagree. "In an as applied challenge, ... we ... focus on the particular conduct at hand and not on the possible conduct of hypothetical parties."

Green , 2004 UT 76, ¶ 51, 99 P.3d 820. Based on the facts of this case, we conclude that any "reasonable law enforcement official acquainted with [Pence's] behavior" could determine that Pence's actions violated the protective order. See State v. Tulley , 2018 UT 35, ¶ 73, 428 P.3d 1005 (cleaned up).

¶ 27 The relevant statute specified that any person subject to a protective order, who intentionally or knowingly violated that order, after having been properly served, was guilty of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). Based on this statute, law enforcement officials would not be "left to pursue their own personal predilections in determining the applicability" of the statute to the facts at hand, because Pence's conduct was so clearly prohibited by the protective order. See Green , 2004 UT 76, ¶ 52, 99 P.3d 820. He drove by Victim and yelled at her while she was at the park, he approached Victim's vehicle, getting "right in [Victim's] face," and he attempted to "grab" one of the minor children while in Victim's presence. This type of behavior violated the protective order and, therefore, left no room for interpretation by law enforcement officials. Accordingly, Pence has failed to demonstrate that both the statute and the protective order were unconstitutionally vague as applied to him.

II. Jury Instruction

¶ 28 Next, Pence argues that the court erred by not adopting his version of the elements jury instruction, which contained two additional elements required to find him guilty: "[t]hat the protective order prohibited the conduct Mr. Pence is accused of" and "[t]hat the protective order described the prohibited conduct with sufficient[ ] clarity to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden by the protective order."

¶ 29 In contrast, the instruction given by the trial court tracked the exact language of Utah Code section 76-5-108, which states that "[a]ny person who is the respondent or defendant subject to a protective order, ... who intentionally or knowingly violates that order after having been properly served, is guilty of a class A misdemeanor." Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). "Intentionally or knowingly" was defined in a separate jury instruction with language taken directly from Utah Code section 76-2-103, which explains knowing and intentional conduct under Utah law. See id. § 76-2-103 (2012). The remaining instructions were stipulated to by the parties.

¶ 30 "[E]rrors in jury instructions-even instructions going to the elements of a charged crime-require harmless-error analysis." State v. Garcia , 2017 UT 53, ¶ 40, 424 P.3d 171. Jury instructions require no particular form so long as they accurately convey the law. State v. Marchet , 2009 UT App 262, ¶ 23, 219 P.3d 75. "To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case." State v. Painter , 2014 UT App 272, ¶ 6, 339 P.3d 107 (cleaned up).

¶ 31 Here, when considered as a whole, the jury instructions fairly and accurately instructed the jury as to the applicable law. All of the elements required in Utah Code section 76-5-108 were included in the elements jury instruction given by the trial court. The language requested by Pence is not found in the statute. Therefore, Pence has failed to show that the instructions, as given, were an incorrect or incomplete statement of the law. Accordingly, the trial court did not err in rejecting the additional proposed language in the elements instruction.

III. Proof of Service

¶ 32 Finally, Pence contends that the trial court erred in denying his motion for judgment as a matter of law, which was premised on insufficient evidence of service.

When considering a sufficiency of the evidence claim, "we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen , 2014 UT 10, ¶ 46, 326 P.3d 645 (cleaned up). "We reverse only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." Id. ¶ 30 (cleaned up).

¶ 33 The premise of Pence's insufficient evidence argument is that the State's exhibit was inadequate as proof of proper service of the protective order, one of the required elements of Utah Code section 76-5-108. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2014). We simply disagree, both because the exhibit itself is sufficient and because other evidence-which Pence ignores-supports the verdict. Exhibit 6 was admitted into evidence as a single document that Officer represented was served upon Pence. A reasonable jury could have relied on Exhibit 6 alone to find that the protective order had been served. But there was more. Pence's own witness (Witness) testified that on August 14, Pence asked her to "drop him off [at an old church building instead of going with Witness to park his car outside the marital home] because of the protective order." This testimony shows Pence's full awareness of the protective order.

¶ 34 Also, without objection, Officer testified to the service of the protective order, stating, "We had the return of service that was served. And it was also through dispatch, advised that it had been served through the state system." While this evidence is conclusory and hearsay, it nevertheless is evidence that the jury could consider in determining that the protective order had been served because no objection was made. With an evidentiary basis upon which the jury could rely, especially when drawing all inferences in favor of the verdict, the trial court correctly denied the motion for judgment as a matter of law. See State v. Gonzalez , 2015 UT 10, ¶¶ 33-34, 345 P.3d 1168 (holding that the trial court "correctly denied" a motion for directed verdict where there was sufficient evidence for a jury to find that the defendant's actions met the requisite elements of the crime).

CONCLUSION

¶ 35 For the aforementioned reasons, we conclude that Utah Code section 76-5-108 is not unconstitutionally vague as applied. We further hold that the jury instructions fairly instructed the jury on the law applicable to the case. And finally, we affirm the trial court's holding that there was sufficient evidence of service of the protective order. Accordingly, we affirm Pence's conviction.

      "On appeal from a criminal conviction, we recite the facts from the record in the light most favorable to the jury's verdict." State v. Pham , 2015 UT App 233, ¶ 2, 359 P.3d 1284.

      We acknowledge that Officer's statement was hearsay, see Utah R. Evid. 801, but because there was no objection below, it was admitted and available for the jury's consideration, see id. R. 103(a). No claim of plain error or ineffective assistance of counsel has been made in connection with this testimony or Exhibit 6.

      Based on our conclusion that Pence's as-applied challenge fails, any alleged facial challenge fails as well. See State v. MacGuire , 2004 UT 4, ¶ 12, 84 P.3d 1171 ("A statute that is clear as applied to a particular complainant cannot be considered impermissibly vague in all of its applications and thus will necessarily survive a facial vagueness challenge.").

      Pence also argues that we should apply the rule of lenity, but he fails to recognize that "the rule of lenity is not implicated unless a statute is ambiguous." State v. Rasabout , 2015 UT 72, ¶ 22, 356 P.3d 1258. Here, Pence's contention fails because the statute is unambiguous, see supra ¶¶ 20-22, and, moreover, his three-sentence argument is inadequately briefed. See Utah R. App. P. 24(a)(8).

      Pence also contends that the denial of his requested jury instruction that contained additional elements prevented the jury from making the mens rea finding required by the constitution. But Pence conceded at trial that "intentionally and knowingly" were from the statute and that they were acceptable. Thus, his argument is unpreserved. Further, even if we assume that his concession was made by mistake, it constituted invited error, which precludes our review. See State v. Moore , 2012 UT App 227, ¶ 5, 285 P.3d 809.


author: Hagen, Judge:

text:
    BODELL CONSTRUCTION COMPANY, Appellee, v. FIRST INTERSTATE FINANCIAL LLC, First Interstate Financial Utah LLC, First Interstate Financial LLC, and Paul Thurston, Appellants.
    No. 20160855-CA
    Court of Appeals of Utah.
    Filed October 18, 2018
    Karra J. Porter, Kristen C. Kiburtz, and James C. Lewis, Attorneys for Appellants
    Jeffrey L. Silvestrini, Stephen T. Hester, and Bradley M. Strassberg, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   Hagen, Judge:

¶1 A jury found that First Interstate Financial LLC, First Interstate Financial Utah LLC, First Interstate Financial LLC, and Paul Thurston (Thurston), defrauded Bodell Construction Company (Bodell) by misrepresenting a real estate investment. Bodell discovered the misrepresentations after learning that McGillis Investment Company (McGillis) had sued Thurston over the same investment (the McGillis Litigation). The McGillis Litigation is central to each claim of error presented on appeal. First, Thurston challenges the admission of evidence relating to the McGillis Litigation, claiming that any probative value was substantially outweighed by the risk of unfair prejudice. Second, Thurston contends that he was entitled to a directed verdict because the undisputed facts established that the statute of limitations on Bodell's fraud claims began to run as a matter of law before Bodell discovered the McGillis Litigation. Third, Thurston challenges the jury's punitive damages award on due process grounds, claiming that the award was intended to punish him for conduct that formed the basis of the McGillis Litigation. We affirm.

BACKGROUND

¶2 In 2006, Thurston persuaded Bodell to invest $1.2 million in the development of condominiums in San Francisco, known as 310 Townsend (the 310 Townsend Project). Thurston represented to Bodell that the 310 Townsend Project did not have any current or foreseeable problems. Thurston also told Bodell that he had personally invested over $4 million of his own "cash equity" in the project. Bodell considered it significant that Thurston had "skin in the game" by placing his own money at risk and relied upon that representation in deciding to invest.

¶3 In truth, Thurston had bought his interest in the 310 Townsend Project by borrowing over $4 million from McGillis. To obtain the loan, Thurston misrepresented to McGillis that he was acting on behalf of a group of developers from southern California. McGillis believed that Thurston had vetted the borrowers and paid him a fee for finding and underwriting the loan.

¶4 Before approaching Bodell, Thurston had told McGillis that the southern California developers needed more time to repay the loan because the project was experiencing permit delays and cost overruns. McGillis agreed to extend the loan for a $1.2 million payment. Thurston then asked Bodell to contribute the $1.2 million without disclosing the current problems with the 310 Townsend Project, the existence of the McGillis loan, or the fact that Bodell's investment was needed to extend the McGillis loan.

¶5 After Bodell invested, Thurston provided Bodell's representative with a letter explaining that the 310 Townsend Project was experiencing delays, permit problems, and cost overruns. When Bodell's representative questioned why the project was not as Thurston had represented, Thurston claimed that he was as surprised as Bodell and "had no idea that there were issues like this" when he encouraged Bodell to invest. Thurston told Bodell that they had both been misled. Believing that they were "teammates" and "on the same side," Bodell's representative continued to work with Thurston for several months in an attempt to salvage the investment. But, in 2007, Bodell asked Thurston for its money back. Thurston apologized for not realizing the problems with the 310 Townsend Project and returned a $50,000 premium that Bodell had paid for the opportunity to invest.

¶6 Several years later, Bodell filed this action against Thurston for an accounting and breach of the covenant of good faith and fair dealing. As part of his initial disclosures, Thurston produced documents that referenced the McGillis Litigation. Bodell obtained transcripts from the McGillis Litigation and discovered the existence of the McGillis loan, Thurston's representations to McGillis that the 310 Townsend Project was experiencing delays and cost overruns before Bodell invested, and that Thurston needed $1.2 million to extend the McGillis loan. Upon learning these additional facts, Bodell amended its complaint to allege fraud and fraudulent concealment. Specifically, Bodell alleged that it had been fraudulently induced into investing in the 310 Townsend Project and would not have invested if Thurston had disclosed all material aspects of the deal.

¶7 Before trial, Thurston filed a motion in limine seeking to exclude "any reference" to the McGillis Litigation. Bodell opposed the motion, arguing that the McGillis Litigation was relevant to its fraud and fraudulent concealment claims. Specifically, in reviewing the McGillis Litigation transcripts, Bodell had learned that Thurston knew of the problems with the 310 Townsend Project at the time he asked Bodell to invest and that Thurston had not invested his own cash equity but instead needed Bodell's investment to secure an extension on the McGillis loan. Bodell argued that this evidence was also relevant to refute Thurston's statute-of-limitations defense because it would show it could not have reasonably discovered the fraud before obtaining the McGillis Litigation transcripts.

¶8 At the pretrial motion hearing, Thurston conceded that evidence of the McGillis Litigation, as it pertained to the 310 Townsend Project and the McGillis loan, was relevant to Bodell's fraud claims and statute-of-limitations argument. Accordingly, Thurston narrowed his motion in limine and sought to exclude only two categories of evidence relating to the McGillis Litigation: (1) the "dozens and dozens" of other transactions at issue in the McGillis Litigation that were unrelated to the 310 Townsend Project and (2) "information concerning the outcome of that case, the verdict, [and] the findings of fact." Bodell indicated that the parties were "largely in agreement on the scope of an order in limine if there's going to be one" but argued that it was unnecessary at this point. The court agreed, indicating that it would rule on objections to the evidence at trial.

¶9 Thurston expressed concern that, without an order in limine, some of Bodell's witnesses, who harbored animus against him, might intentionally blurt out prejudicial information.

The court indicated that Thurston's concern could be addressed by having Bodell instruct its witnesses about "staying on track" and answering only the question posed. Bodell indicated it had already talked to its witnesses and they understood that. Based on those representations, the court denied the motion.

¶10 Bodell's representative was the first witness at trial. When he was asked about the McGillis Litigation, Thurston objected, claiming the evidence was irrelevant and prejudicial. In response, Bodell argued that the testimony was relevant because "[i]t goes to how he discovered the fraud." The court overruled Thurston's objections and allowed the representative to testify as to what "he learned about through the lawsuit," but it directed Bodell's counsel to "be very shallow" in discussing the lawsuit itself.

¶11 Bodell's representative went on to testify that he learned from the McGillis Litigation that Thurston had not invested his own money in the 310 Townsend Project as he represented, that the McGillis loan was the source of the funds, and that Bodell's investment was used to get an extension on that loan. The representative further testified that he learned Thurston had told McGillis that there were problems with the 310 Townsend Project that required an extension of the loan even though Thurston had represented to Bodell that there were no such problems. Thurston objected to this testimony on hearsay grounds, but the court overruled those objections.

¶12 On cross-examination, Thurston questioned the representative about Bodell's responses to certain interrogatories. Specifically, he asked what information Bodell had to support the claim that Thurston had defaulted on the McGillis loan. The representative answered:

That he was perhaps going to default. I don't know exactly, but yes. I learned through that trial, learned that-that's where I learned about-one of the sources of learning about the big default, I mean the cheating McGillis out of $2 million that he was successful in winning, a fraud against Mr. Thurston.

Thurston did not object or move to strike the answer as nonresponsive but instead asked the witness to "limit [his] answer to [the] question."

¶13 Bodell requested a sidebar at which it suggested that Thurston "opened the door with that question. He has asked him about the result of the trial however you look at it." The court agreed, stating, "That's precisely what you're doing .... You're opening the door to let them bring the trial in." Thurston conceded, "It's in." Thurston explained that this line of questioning was designed to show that there was no support for some of the claims made in Bodell's answers to interrogatories. The court surmised that "this area that [Thurston was] getting into now probably doesn't require [further discussion of] the [McGillis] trial" and allowed Thurston to finish his cross-examination. The court indicated that it would address the matter the following morning outside of the jury's presence.

¶14 When testimony resumed, Thurston again asked about the basis for Bodell's assertion that Thurston was in default on the McGillis loan, specifically asking whether Bodell had any documentation to that effect. Bodell's representative answered, "Well, I'm not aware of anything directly, just what I understood occurred in the McGillis case where they won the fraud judgment against [Thurston] related to this and other investments." Thurston did not object or move to strike this testimony.

¶15 The following morning, Thurston argued that the testimony regarding the outcome of the McGillis Litigation was not only prejudicial but false. He explained that the verdict in the McGillis Litigation was for breach of fiduciary duty, not fraud, and that it was impossible to determine whether the jury's verdict even related to the 310 Townsend Project given the number of transactions at issue in that case. Thurston explained that he did not move to strike the testimony because he did not want to draw attention to it, but that he did not "know how to unring that bell." The court indicated that it could be remedied with a curative instruction. Going forward, the court ruled:

I think the other trial certainly does come in, the other trial in terms of discovering what happened and what you discovered from the trial I think comes in. I don't think there's any need to bring the verdict in not the verdict form or anything like that, but if in fact we have to determine when it was that [Bodell] discovered that there were some improprieties, at least the first time he learned that, that's highly relevant with regard to the statute of limitations.

The court reiterated that it would issue a curative instruction regarding the testimony about the McGillis Litigation verdict, stating, "I don't think the result has any relevance here. That said, the proceedings certainly do have relevance because that was when [Bodell] made the discovery" of the alleged fraud. Accordingly, the court ruled that "the details of that trial certainly can come in. The only thing that's not going to come in will be the verdict." Bodell clarified that it could "talk about the parties to the case, the allegations of the case, but not the results of the case." The court confirmed, "Yes. I think that's fair."

¶16 When the jury reconvened, the district court gave the following curative instruction:

And maybe since it's fresh on the jury's mind, there was a reference yesterday to the result of the other trial we're talking about and that reference not only doesn't appear accurate, but quite frankly it wasn't even supposed to come in this trial. So I would ask you to disregard that. That is not what happened. So just so you know, if you recall the reference yesterday, please disregard. If you don't recall, that's fine.

Thurston did not object to this instruction or request further relief.

¶17 During the remainder of trial, Bodell elicited testimony on three occasions regarding the nature of the allegations in the McGillis Litigation. First, Bodell asked McGillis's managing partner what claims had been alleged in the lawsuit:

A: There were many and I might be missing some. One of them was elder abuse. The other was contract fraud, fiduciary-
Q: Breach of fiduciary duty?
A: Breach of fiduciary duty, fraud, contract, elder abuse, maybe misrepresentation. Those are the ones that are prevalent in my mind.

Bodell also asked McGillis's bookkeeper whether she knew what claims were at issue in the McGillis Litigation:

A: Claims of fraud, and elder abuse and breach of fiduciary duty. Those were a few of them. I think there were maybe some more, but those were the main ones.
...
Q: But with respect to the other transaction that counsel asked you about that were part of that lawsuit, were there similar problems with alleged fraud?
A: Yes.

Finally, in response to Bodell's questions on cross-examination, Thurston acknowledged that he had been "sued for fraud by Mr. McGillis." In all three instances, Thurston raised no contemporaneous objection.

¶18 At the close of Bodell's case-in-chief, Thurston moved for a directed verdict on the ground that the three-year statute of limitations barred Bodell's claims. The court denied the motion. The question was submitted to the jury.

¶19 By special verdict, the jury found that the statute of limitations did not bar Bodell's claims. It also found that Thurston had committed fraud against Bodell, had fraudulently concealed important facts from Bodell, and had made negligent representations to Bodell. Finally, the jury found, by clear and convincing evidence, that Bodell should be awarded punitive damages. The jury awarded Bodell $356,141 in compensatory damages and $7.5 million in punitive damages.

¶20 Thurston filed a motion for judgment notwithstanding the verdict, a new trial, and remittitur. Relevant here, Thurston sought a new trial based on prejudicial evidence admitted regarding the McGillis Litigation; judgment notwithstanding the verdict based on his statute-of-limitations defense; and judgment as a matter of law, a new trial, or remittitur on the punitive damages. The district court denied the motion except as to the remittitur of punitive damages. The district court found the punitive damages excessive, and Bodell accepted a remittitur of punitive damages to $356,141, an amount equal to actual damages. Thurston appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 Thurston first asks this court to determine whether he was deprived of a fair trial when the district court admitted evidence concerning allegations made against him in the McGillis Litigation. "We review a [district] court's decision to admit or exclude evidence under Rule 403 of the Utah Rules of Evidence under an abuse of discretion standard, and will not overturn a lower court's determination of admissibility unless it is beyond the limits of reasonability." Gregory & Swapp, PLLC v. Kranendonk , 2018 UT 36, ¶ 20, 424 P.3d 897 (quotation simplified).

¶22 We next consider whether Thurston was entitled to judgment as a matter of law based on the statute of limitations. "When reviewing any challenge to a trial court's denial of a motion for directed verdict, we review the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against, and will sustain the denial if reasonable minds could disagree with the ground asserted for directing a verdict." Barrientos ex rel. Nelson v. Jones , 2012 UT 33, ¶ 9, 282 P.3d 50 (quotation simplified). If the denial of a directed verdict relies upon any underlying legal conclusions, those conclusions are reviewed for correctness. See Liley v. Cedar Springs Ranch Inc. , 2017 UT App 166, ¶ 12, 405 P.3d 817.

¶23 Finally, we are asked to determine whether the district court erred in failing to grant a new trial with regard to punitive damages. Failure to grant a new trial is reviewed for an abuse of discretion. See Barrientos , 2012 UT 33, ¶ 7, 282 P.3d 50 (noting that "because the grant of a new trial is ordinarily left to the sound discretion of the trial court," we review the district court's decision to deny a new trial "under an abuse of discretion standard" (quotation simplified) ).

ANALYSIS

I. Evidence Regarding the McGillis Litigation

¶24 Thurston contends that he is entitled to a new trial because the court admitted prejudicial testimony regarding the McGillis Litigation. Specifically, Thurston challenges the admission of testimony concerning (1) the outcome of the McGillis Litigation and (2) the allegations of elder abuse, fraud, and other claims in the McGillis Litigation. Although Thurston raised these arguments below in a rule 59 motion for a new trial, he has not appealed the district court's denial of that motion. Instead, he asks us to directly review the district court's legal errors at trial. However, he has failed to identify any legal error committed by the district court, much less show that any alleged error was preserved for appellate review.

¶25 With respect to the testimony regarding the outcome of the McGillis Litigation, Thurston has not identified any adverse ruling by the district court for our review on appeal. Before trial, the district court declined to enter a categorical order in limine, but it agreed with Thurston that the results of the McGillis Litigation were inadmissible and cautioned Bodell to instruct its witnesses accordingly. When Bodell's representative unexpectedly testified that McGillis had prevailed against Thurston on its fraud claim, Thurston made no objection or other motion on which the court could rule. Thurston's counsel later explained that his failure to object was a tactical decision to avoid drawing undue attention to the testimony. On appeal, he does not claim that the court plainly erred in declining to intervene sua sponte.

¶26 When the matter was later discussed outside the jury's presence, Thurston did not move the court to strike the testimony, issue a curative instruction, grant a mistrial, or provide any other relief. The court confirmed that the McGillis Litigation verdict was inadmissible and decided, sua sponte, to issue a curative instruction. That instruction not only informed the jury that the testimony regarding the McGillis verdict was inadmissible and should be disregarded but also stated that the testimony "doesn't appear to be accurate"

and "is not what happened." Thurston did not object to this curative instruction as insufficient or request any other relief. Thurston does not allege that the district court plainly erred in failing to do more.

¶27 Rather than take issue with the district court's rulings, Thurston suggests that the "error" arose when Bodell's representative violated the district court's directive not to discuss the outcome of the McGillis Litigation. He asks us to review the prejudicial effect of that violation without regard to the district court's rulings. "Appellate courts review the decisions of lower courts. We do not review the actions of counsel-at least not directly." State v. Hummel , 2017 UT 19, ¶ 107, 393 P.3d 314. Nor do we "review the trial record in a search for an idealized paradigm of justice." State v. Thornton , 2017 UT 9, ¶ 49, 391 P.3d 1016 (explaining that "American courts have long followed the 'writ of error' approach to appellate review"). Our role as an appellate court is to review "specific rulings made by the trial court." Wing v. Still Standing Stable LLC , 2016 UT App 229, ¶ 17, 387 P.3d 605 (quotation simplified). In other words, "[w]e ask only whether the trial court committed a reversible error in resolving a question presented for its determination." Thornton , 2017 UT 9, ¶ 49, 391 P.3d 1016.

¶28 Here, Thurston has not challenged any specific district court ruling nor has he invoked an exception to the preservation requirement by arguing that the district court plainly erred in failing to take further action sua sponte. Instead, by asking us to directly review the prejudicial effect of the testimony without regard to the district court's rulings, Thurston attempts "an end-run around the law of preservation (and the doctrine of plain error review)." Hummel , 2017 UT 19, ¶ 112, 393 P.3d 314.

¶29 Thurston takes a similar approach in challenging testimony identifying the specific claims at issue in the McGillis Litigation. Although Thurston originally moved for an order in limine excluding "any reference" to the McGillis Litigation, he later conceded that evidence of the McGillis Litigation was relevant and admissible so long as it concerned the 310 Townsend Project. By the time of trial, Thurston had abandoned his motion in limine except with respect to evidence regarding the McGillis Litigation verdict and information about unrelated investments at issue in that case.

¶30 The court's midtrial ruling was consistent with Thurston's modified position. While the court excluded evidence regarding the verdict, it ruled that the allegations in the McGillis Litigation were admissible to prove what Thurston knew and represented to others at the time he induced Bodell's investment and when Bodell learned of those facts. Thurston voiced no objection and sought no clarification of the court's ruling.

¶31 Nor did he object when Bodell asked witnesses to name the specific legal claims at issue in the McGillis Litigation. Three witnesses each testified that the lawsuit involved fraud claims, and two of those witnesses mentioned additional claims of elder abuse and breach of fiduciary duty. The district court had no opportunity to rule on the relevance of this specific testimony because Thurston made no contemporaneous objection.

¶32 "When an issue is not preserved in the trial court, but a party seeks to raise it on appeal, the party must establish the applicability of [the preservation] exceptions to persuade an appellate court to reach that issue." State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443. Here, Thurston has not argued, let alone established, a valid exception to the preservation requirement that would justify reaching this unpreserved issue.

II. Statute of Limitations

¶33 Thurston challenges the district court order denying his motion for a directed verdict. He argues that he was entitled to judgment on Bodell's fraud and fraudulent concealment claims because the undisputed facts established that the statute of limitations barred those claims. Specifically, Thurston contends that the three-year limitation period for fraud claims began to run in 2007 when Bodell, having determined that the 310 Townsend Project was not proceeding as represented, demanded a return of its investment. Thurston argues that Bodell admittedly had knowledge of facts that could form the basis of a cause of action, triggering the statute of limitations as a matter of law. Because this action was not brought within three years of that date, Thurston contends that he was entitled to a directed verdict.

¶34 The relevant statute of limitations for fraud claims provides that the "cause of action does not accrue until the discovery by the aggrieved party of the facts constituting the fraud or mistake." Utah Code Ann. § 78B-2-305(3) (LexisNexis 2012). This statutory discovery rule tolls the running of the three-year limitations period until the date a plaintiff either discovers or should have discovered the fraud claim. See Russell Packard Dev., Inc. v. Carson , 2005 UT 14, ¶ 23, 108 P.3d 741. "[T]he determination of when the aggrieved party reasonably should have known of the facts forming the basis of the party's fraud claim is a question of fact." Shiozawa v. Duke , 2015 UT App 40, ¶ 14, 344 P.3d 1174. "Indeed, at what point a party should have reasonably discovered its claim is a fact-intensive inquiry that precludes judgment as a matter of law in all but the clearest of cases." Id. (quotation simplified).

¶35 This is not one of those rare cases in which the defendant was entitled to judgment as a matter of law. Bodell presented sufficient evidence to support a finding that it did not reasonably discover its fraud claims until after it learned of the McGillis Litigation from Thurston's initial disclosures. Bodell's representative testified that he first discovered the facts underlying the fraud claims by reviewing the transcripts of the McGillis Litigation. Specifically, he learned that Thurston had not invested his own cash equity in the 310 Townsend Project but instead had funded his investment by borrowing money from McGillis, that Thurston knew that the 310 Townsend Project was experiencing cost overruns and delays in obtaining permits and had cited those problems as justification for an extension on the McGillis loan, and that Thurston needed $1.2 million to secure the extension when he approached Bodell about investing. Based on this evidence, the jury could have reasonably concluded that until Bodell learned of these facts from the McGillis Litigation, Bodell could not have reasonably discovered that Thurston had concealed and misrepresented these facts to induce the investment.

¶36 Thurston maintains that Bodell's admission that, "by 2007, [it] had determined that the project was not as represented to [it] by Thurston" placed it on notice that it had some type of claim for misrepresentation. Thurston argues that, "[w]hile Bodell might not have known all of the alleged misrepresentations, or whether they were intentional or not, it knew that it had a potential claim-hence the demand for return of funds." But Bodell's discovery that the 310 Townsend Project was not as represented did not necessarily put it on notice that it had a claim against Thurston. Bodell's representative testified that Thurston denied prior knowledge of the problems and claimed that he had also been misled. In fact, Bodell's representative testified that he continued to work with Thurston because Thurston led him to believe that they were "on the same side" and had both been similarly wronged. Based on this evidence, the jury could have reasonably concluded that Bodell had no basis to question Thurston's representation or to suspect him of any wrongdoing until Bodell learned from the McGillis Litigation transcripts that Thurston had cited the permit problems and cash overruns as justification to extend the McGillis loan before approaching Bodell to invest.

¶37 The facts of this case were susceptible to different interpretations that precluded judgment as a matter of law on whether the discovery rule tolled the statute of limitations for fraud. The district court properly submitted to the jury the factual question of when Bodell should have reasonably discovered the basis for its claims. Accordingly, we affirm the denial of Thurston's motion for a directed verdict.

III. Punitive Damages

¶38 Thurston contends that the punitive damages award violates due process because the award was designed to punish Thurston for his actions toward McGillis, a nonparty, rather than for his actions toward Bodell. Thurston argues that there was a "steady drumbeat throughout trial regarding Thurston lying to Mr. McGillis, abusing Mr. McGillis, [and] getting rich off of Mr. McGillis," which "could not have been ignored by the jury." Thurston contends that because the district court did not protect him against the risk that the jury would punish him for the alleged injury inflicted upon McGillis, "the award of punitive damages cannot stand and a new trial must be granted."

¶39 Under Utah law, a jury may award punitive damages if it awards compensatory damages and finds "by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct , or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others." Utah Code Ann. § 78B-8-201(1)(a) (LexisNexis 2012) (emphasis added). In finding by clear and convincing evidence that Thurston committed fraud on Bodell, the jury necessarily made a finding of intentionally fraudulent conduct sufficient to support an award of punitive damages. But, to satisfy due process, such an award must relate to the harm Bodell suffered and cannot be used to punish Thurston for harm caused to others.

¶40 In Philip Morris USA v. Williams , 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007), the United States Supreme Court held that allowing punitive damage awards to punish a defendant for injury inflicted on a nonparty would violate procedural due process. Id. at 356-57, 127 S.Ct. 1057. The Court clarified that the jury is allowed to consider harm to others in determining the reprehensibility of the defendant's conduct, but "a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties." Id. at 355, 127 S.Ct. 1057. Where the risk of jury confusion is significant, "a court, upon request, must protect against that risk." Id. at 357, 127 S.Ct. 1057. While the Supreme Court allowed the states "some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases." Id.

¶41 In response to Philip Morris , the Utah Supreme Court modified its long-standing rules on punitive damages. See Westgate Resorts, Ltd. v. Consumer Prot. Group, LLC , 2012 UT 55, ¶¶ 13-14, 285 P.3d 1219. Previously, in Crookston v. Fire Insurance Exchange , 817 P.2d 789 (Utah 1991), the court had articulated factors to be considered in assessing punitive damages. Id. at 808. Relevant here, the fourth Crookston factor was "the effect [of the alleged misconduct] on the lives of the plaintiff and others." Westgate Resorts , 2012 UT 55, ¶ 13, 285 P.3d 1219 (quotation simplified). The Westgate court held that this factor "must be modified to be constitutionally accurate," by clarifying that harm to others "may only be used to assess reprehensibility," not "to directly punish a defendant for harm caused to nonparties." Id. ¶¶ 14, 23. To implement that decision, our supreme court directed that "[j]ury instructions should now include an explanation that 'harm to others' may be considered for reprehensibility only, and not for punishment." Id. ¶ 23.

¶42 In accordance with Philip Morris and Westgate Resorts , the jury instructions in this case protected against the risk that the jury would improperly award punitive damages to punish Thurston for harm allegedly caused to McGillis. Thurston proposed the punitive damages instructions that were given to the jury. Those instructions specifically advised the jury that the amount of punitive damages "must bear some relationship to Plaintiff's harm." The exclusive list of factors that the jury was allowed to consider in determining the amount of punitive damages omitted any reference to "harm to others." Instead, the fourth Crookston factor was limited to "the effects of the Defendant's conduct on the Plaintiff." By entirely eliminating "harm to others" as a permissible consideration, the instructions protected against any confusion regarding the permissible use of that factor.

¶43 Thurston does not address how the jury instructions were inadequate to "protect against the risk that the jury might improperly consider harm to McGillis in deciding to award punitive damages." The court did not explicitly instruct the jury that it could not punish Thurston for harm he caused to others. But, unlike the defendant in Philip Morris , Thurston did not request such an instruction. 549 U.S. at 356, 127 S.Ct. 1057 ; see also Westgate Resorts , 2012 UT 55, ¶ 22, 285 P.3d 1219 (holding that "an objection lodged with a trial court based on a plaintiff's suggestion that the jury calculate punitive damages by assessing the damage caused to nonparties suffices to serve as a 'request' under Philip Morris "). In the absence of such a request, there was no need for the court to go beyond the law as correctly stated in the jury instructions Thurston proposed.

¶44 There was no significant risk that the jury based the punitive damages award on the harm Thurston allegedly caused McGillis. Because Thurston failed to establish a procedural due process claim, the court acted within its discretion in denying his motion for a new trial.

CONCLUSION

¶45 Thurston has failed to establish any error in the district court's evidentiary rulings or in its denial of his motion for a directed verdict. He has also failed to show a significant risk that the jury improperly based its punitive damages award on harm Thurston allegedly caused against a nonparty. Accordingly, we affirm the judgment.

      Because we use "Thurston" interchangeably to refer to both Paul Thurston individually and the appellants collectively, we use singular, masculine pronouns for convenience.

      On appeal, Thurston also alleges that Bodell "doubled down" by referring to this stricken testimony when counsel argued in closing that Thurston "defrauded Mr. McGillis and lied to him about being the borrower on the 310 Townsend loan" and when he urged the jury not to let Thurston "do to you what he did to Mr. McGillis to the tune of $2.4 million." Bodell maintains that this argument was based on Thurston's own admissions during the trial in this case. We need not decide whether this was proper argument, because Thurston made no contemporaneous objection and has not argued on appeal that the court plainly erred by not intervening sua sponte.

      Thurston asserts that Wilson v. IHC Hospitals, Inc. , 2012 UT 43, 289 P.3d 369, supports such an approach. We disagree. In Wilson , the Utah Supreme Court held that counsel's repeated violation of an order in limine categorically excluding evidence of collateral source benefits was sufficiently prejudicial to warrant a new trial. Id. ¶ 29. But, unlike in this case, the issue in Wilson was properly preserved. As the court noted, "[o]n the fourth day of trial, when IHC asked Mr. Wilson about the amount of out-of-pocket expenses his family had incurred in purchasing Jared's wheelchair, the Wilsons objected, arguing 'this [is] a direct violation of the Court's order.' " Id. ¶ 29 n.6. The court held that "[t]his objection was both timely and sufficient to preserve the collateral source issue for appeal." Id. In contrast, Thurston failed to make a timely objection to the testimony in such a way that the court could rule on it.

      Thurston does not argue that the claims of fraud, elder abuse, and misrepresentation in the McGillis Litigation were unrelated to the 310 Townsend Project.

      To the extent Thurston also challenges the district court's denial of its motion for judgment notwithstanding the verdict, we affirm that ruling for the same reasons.