author: BENCH, Judge:

text:
    2003 UT App 86
    Beth WALTER, Plaintiff and Appellant, v. Alan STEWART, Defendant and Appellee.
    No. 20010866-CA.
    Court of Appeals of Utah.
    March 27, 2003.

      Kathleen M. McConkie, Wingo & Rinehart, Bountiful, for Appellant.
    Todd R. Mecham, Randall L. Skeen, Cook Skeen & Robinson LLC, and Darwin Over-son, Overson Flores & Simms LLC, Salt Lake City, for Appellee.
    Before BILLINGS, Associate Presiding Judge, BENCH and GREENWOOD, JJ.
   OPINION

BENCH, Judge:

T1 This case arises out of an attorney-client relationship, which turned sexually intimate, between one-time client Beth Walter and her former attorney Alan Stewart. Following her discovery that Stewart was married, Walter filed claims against Stewart for breach of fiduciary duty, fraud, intentional infliction of emotional distress, reckless misconduct, breach of contract, and battery. Upon Stewart's motion, the trial court entered summary judgment against Walter on all of her claims. Walter now appeals. We reverse in part, affirm in part, and remand.

BACKGROUND

12 " [In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party' Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1998). We state the facts accordingly." Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,¶ 2, 52 P.3d 1267.

13 In June of 1998, Walter retained Stewart as her attorney in a divorcee action. Through that representation, Stewart learned that Walter was in a "fragile emotional state and [had] personal self esteem issues," including a "doubt[ ][in] her ability to have a successful relationship." Walter decided to relocate to Maryland. In the first part of April of 1999, Walter phoned Stewart several times, anxious that her divorcee be finalized so she could move.

{4 During his representation of Walter, Stewart became "very flirtatious, often commenting regarding [Walter's] personal appearance and grooming." In April of 1999, Stewart began to call Walter daily and, on April 15, took her on a lunch date. Following the lunch date Stewart asked Walter, "[If you move to Maryland, how are we supposed to have a relationship?" Walter then "decided to postpone the move ... to see where [Stewart's] 'relationship' with [her] would head."

115 Through the first part of May, Stewart continued to tell Walter "that he was waiting to hear from [her] husband's lawyer to finalize the divorce." On May 12, after personally contacting her ex-husband and the trial court, Walter learned that her divorce had actually been finalized on April 26.

T6 The divorce decree required Walter to pay her ex-husband an amount of money. On May 183, Walter asked Stewart about paying the judgment. Stewart told her "to hold off on payment to see if her ex-husband would pursue collection and further advised [her that] if her ex-husband tried to collect on the amount due, she could make arrangements to pay before a judgment was levied against her." Walter took Stewart's advice and did not make the payment. Also upon finalization of her divorce, Walter desired to resume the use of her maiden name and asked Stewart "why her name change was not reflected in the divorce decree." He told her that she could take the decree to the Department of Social Security to have her name changed, which she did.

T7 Stewart and Walter continued to see each other on a personal basis, and on June 5, 1999, Stewart kissed Walter, tried to undress her, and said that he wanted to "make love." Upon Walter's questioning, Stewart told her that he was a divorced father of four children. The two did not engage in sexual relations that day but did become sexually intimate on July 22, 1999. "On that night as [they] discussed sleeping together, [Walter told Stewart] that she would only do so if they were going to have an exelusive-mono-gamous relationship, a condition with which [Stewart] readily concurred and agreed to."

T8 During their personal relationship, Stewart took Walter on numerous dates in public as well as on business trips. He never wore a wedding ring. He displayed on his desk an engraved clock that Walter gave him, and wore clothing she gave him. The two also spoke of getting married.

T9 In August of 1999, Walter received an order to show cause for her failure to pay her ex-husband what she owed him under the divoree decree. Walter contacted Stewart, and he said that he would take care of the matter and declined her offer to pay for his services. He then made payment arrangements with the attorney for Walter's ex-husband, and the show-cause hearing was canceled. "For his services rendered and as a token of appreciation, [Walter] bought [Stewart] a [$100] fountain pen."

1 10 In October of 1999, Walter considered breaking off her relationship with Stewart. However, when she expressed those feelings to him, he "told [her] that he loved her, that he wouldn't accept [her] breaking up with him and that he would 'stalk [her] and wait for [her] in the parking garage at work.'" They continued to see each other, exchanged Christmas gifts, and spent much of New Years Day 2000 together. Although their dates became less frequent in 2000, Stewart continued to express a commitment to their relationship.

[ 11 In September of 2000, while pursuing an unrelated international adoption, Walter was told by the Immigration and Naturalization Service that she had illegally resumed use of her maiden name since a name change was not included in her divoree decree. Walter contacted Stewart, who told her that she would need to petition the court to amend the divorce decree. Because Walter's ex-husband would not cooperate in the action, she "retained [Stewart's] services once more to petition the court for a name change and paid him the sum of $350.00."

12 The hearing on Walter's name change was held on November 2, 2000. "Following the hearing, [Stewart] escorted [Walter] to her car. When they got to the car [he] grabbed [her] around [the] waist and asked her to have sex with him." "Because of the on again-off again nature of [Stewart's] relationship with [her] during the latter half of 2000, [Walter] became curious regarding [his] marital status." In a phone conversation on November 12, Stewart told Walter that he and his wife were back together and that he had not been divorced, but only separated. After their phone conversation, Stewart went to Walter's home and told her that "he reconciled with his wife to be with his children, that he was under discipline by his church for a previous affair, and that he had been living with his mother." Stewart nevertheless expressed a desire to keep in contact.

T13 Over the next four days, Stewart called Walter "approximately four times a day," and, on November 16, took her out to lunch. On the evening of November 16, Walter called Stewart's wife and learned that Stewart had been married for twenty years, had never separated from his wife, had not been disciplined by his church for a previous affair, and that he had not lived with his mother at any time during his affair with Walter. Shortly after Walter's conversation with Stewart's wife, Stewart called Walter and told her that she had ruined his life and then hung up. The two have not spoken sinee.

[ 14 Walter filed a complaint against Stewart. Her complaint includes claims for breach of fiduciary duty, fraud, intentional infliction of emotional distress, reckless misconduct, breach of contract, and battery. Stewart moved for summary judgment on all of Walter's claims. The trial court granted Stewart's motion in its entirety, stating simply that Walter's battery claims were barred by the statute of limitations and that Walter "failed to support by Affidavit facts sufficient to support" her other claims. She now appeals.

STANDARD OF REVIEW

115 "Whether the trial court properly granted summary judgment is a question of law that we review for correctness, according no deference to the trial court's legal conclusions." Bakowski v. Mountain States Steel, Inc., 2002 UT 62,¶ 14, 52 P.3d 1179.

ANALYSIS

I. Breach of Fiduciary Duty

116 "[Aletions [for breach of fiduciary duty] are grounded on the fundamental principle that attorneys must be completely loyal to their clients and must never use their position of trust to take advantage of client confidences for themselves or for other parties." Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct.App.1996). "In all relationships with clients, attorneys are required to exercise impeccable honesty, fair dealing, and fidelity." Id. (emphasis added). Indeed, due to their "professional responsibility and the confidence and trust" that their clients "legitimately repose" in them, attorneys "must adhere to a high standard of honesty, integrity[,] and good faith in dealing with" their clients. Id. (quotations and citation omitted). Attorneys are "not permitted to take advantage of [their] position or superior knowledge to impose upon [clients]; nor to conceal facts or law, nor in any way deceive [clients] without being held responsible therefor." Id. (emphasis added) (quotations and citation omitted).

T17 "The essential elements of legal malpractice based on breach of fiduciary duty include the following: (1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (8) causation, both actual and proximate; and (4) damages suffered by the client." Id.

T18 It is undisputed that an attorney client relationship existed between Stewart and Walter through at least April of 1999. In May, Walter sought advice from Stewart regarding a sum of money she owed her ex-husband under the divorce decree. Stewart "advised [Walter] to hold off on payment to see if her ex-husband would pursue collection and further advised [Walter that] if her ex-husband tried to collect on the amount due, she could make arrangements to pay before a judgment was levied against her." This evidence, when viewed in the light most favorable to Walter, indicates that both Stewart and Walter anticipated further representation of her in the divorce action. It is undisputed that Stewart later represented Walter on an order to show cause, which came about because of the advice he gave her regarding payment of the judgment. He represented her again in a name change hearing. Therefore, viewing the facts in a light most favorable to Walter, an attorney-client relationship existed between the parties at all relevant times.

119 As to a breach of the duty owed Walter, the facts viewed in a light most favorable to her indicate that Stewart took advantage of information he gained during his representation of her to initiate first a dating relationship and then a sexually intimate relationship with Walter. He also misrepresented his marital status and the state of her legal affairs for his own interests. Stewart's conduct can be reasonably construed as taking advantage of a client's fidu-clary trust through deception. Walter has thus stated facts sufficient to place the element of breach of duty into dispute.

120 Walter states damages that she claims were caused, actually and proximately, by Stewart's conduct. The reason for the dissolution of the parties' relationship, as well as the timing of that dissolution relative to the damages Walter alleges, raise a reasonable inference supporting both actual and proximate causation. "[Claus[ation] is an issue of fact, [and] we refuse to take it from the jury if there is any evidence upon which a reasonable jury could infer causation." Butterfield v. Okubo, 831 P.2d 97, 106 (Utah 1992). We cannot, therefore, rule against Walter as a matter of law on this element.

T 21 Stewart contends that "emotional injury[, unjaccompanied by a tangible manifestation of that injury," is not recoverable in a claim for breach of fiduciary duty. Walter, however, has alleged the following damages arising from Stewart's breach of duty: emotional pain, a need for mental health counseling, physical pain, medical bills, loss of employment, and a need for sexual therapy.

122 Because none of the elements of breach of fiduciary duty can be resolved against Walter as a matter of law, we reverse the grant of summary judgment on this claim.

IL Fraud

123 Stewart argues that Walter's fraud claim can be resolved as a matter of law on either of two bases. Stewart first argues that any misrepresentation of his marital status was immaterial to the sexual relations that allegedly caused damage to Walter. See Cheever v. Schramm, 577 P.2d 951, 954 (Utah 1978) (stating the elements of a civil fraud claim). "'A material fact is any fact, the knowledge or ignorance of which would naturally influence [a partyl's judgment ... in estimating the degree and character of the risk'" involved in a transaction. Fidelity & Cas. Co. v. Middlemiss, 103 Utah 429, 439, 135 P.2d 275, 279 (1943) (quoting Zolintakis v. Equitable Life Assurance Soc'y, 97 F.2d 583, 586 (10th Cir.1938)). Walter explicitly told Stewart that her participation in sexual relations with him was conditioned on their having "an excelusive-mo-nogamous relationship." Undoubtedly, knowledge of the fact that Stewart was married and living with his wife would have influenced Walter's judgment regarding the risks of their sexual intimacy. These misrepresentations were thus material.

124 Stewart also challenges the sufficiency of Walter's affidavit in stating damages sufficient to maintain a fraud claim. Although Stewart filed an affidavit in support of his summary judgment motion, it says nothing in relation to the damages Walter alleges she suffered. [Thhe [rule 56(e)] requirement that a party opposing the summary judgment motion file counter-affidavits applies only when the moving party has elected to and has filed affidavits in support of the motion. If ... the moving party chooses not to or simply fails to file affidavits, section (e) is inapplicable." Gadd v. Olson, 685 P.2d 1041, 1045 (Utah 1984). Additionally,

when a party opposes a properly supported motion for summary judgment and fails to file any responsive affidavits or other evidentiary materials allowed by Rule 56(e), the trial court may properly conclude that there are no genuine issues of fact unless the face of the movant's affidavit affirmatively discloses the existence of such an issue.

Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983) (emphasis added). It follows that an affidavit supporting a summary judgment motion, proffering evidence in contradiction of only some of the opposing party's allegations, does not trigger a requirement that the opposing party proffer evidence supporting those allegations that remain unchallenged. Because Stewart's affidavit contains no evidence contradicting Walter's allegations regarding her damages, Walter may stand on the damages allegations in her complaint for purposes of summary judgment.

125 Because we cannot rule against Walter on these issues as a matter of law, we reverse the grant of summary judgment on her fraud claim.

III. Intentional Infliction of Emotional Distress

126 In claims of intentional infliction of emotional distress, "whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery" and whether "the distress inflicted is so severe that no reasonable [person] could be expected to endure it" are each questions of law "for the court to determine, in the first instance." Schuurman v. Shingleton, 2001 UT 52, ¶ 23, 26 P.3d 227 (quotations and citations omitted). Stewart contends that "[ble-cause Walter cannot establish these [two] elements as a matter of law ... the trial court correctly dismissed this claim summarily."

127 Stewart allegedly used the position of trust he occupied as Walter's attorney, knowledge he gained of her emotional fragility, and misrepresentations about her legal affairs and his marital status, to lure her into a sexual relationship she would not otherwise have engaged in. " '[Glenerally, the case [of intentional infliction of emotional distress] is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" '" Retherford v. AT & T Communications, 844 P.2d 949, 978 n. 19 (Utah 1992) (emphasis omitted) (second alteration in original) (quoting Restatement (Second) of Torts § 46 emt. d (1965)). We conclude that the conduct alleged here is of that general type and can be said to " 'offend against the generally accepted standards of decency and morality." Schuurman, 2001 UT 52 at ¶ 23, 26 P.3d 227 (quoting Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 347 (1961). It thus meets the threshold necessary to maintain an action for intentional infliction of emotional distress. Cf. Retherford, 844 P.2d at 978 (stating that "the conduct that constitutes sexual harassment is per se outrageous" for purposes of intentional infliction of emotional distress).

128 Stewart contends that the distress alleged by Walter is analogous to that alleged by the plaintiff in Schuurman, which distress was held to be insufficient as a matter of law to maintain an action for intentional infliction of emotional distress. See 2001 UT 52 at ¶ 25, 26 P.3d 227. There, the plaintiff alleged that the defendant's conduct destroyed her marriage; caused her "severe pain, suffering, and emotional distress"; caused her not to seek "proper treatment for her eating disorder and depression"; and would cause her to "incur damages in the future for counseling services." Id. at ¶ 5, 26 P.3d 227. The court held that this was "not the type of emotional distress on which a claim for intentional infliction of emotional distress may be based" because it "is indistinguishable from that commonly suffered by others when an intimate personal relationship fails." Id. at ¶ 25, 26 P.3d 227.

129 The emotional distress suffered by Walter allegedly includes not only emotional pain and a need for mental health counseling, but also physical pain, medical bills, loss of employment, and a need for sexual therapy. This level of distress is "[ ]distinguishable from that commonly suffered by others when an intimate personal relationship fails." Id. We conclude that it rises to a level that " 'no reasonable [person] could be expected to endure,'" absent compensation, and is thus sufficient to maintain an action for intentional infliction of emotional distress. Id. at ¶ 23, 26 P.3d 227 (quoting Restatement (Second) of Torts § 46 emt. j (1948)).

130 Because we cannot rule against Walter on these issues as a matter of law, we reverse the grant of summary judgment on her intentional infliction of emotional distress claim.

IV. Reckless Misconduct

131 "''Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it'" Matheson v. Pearson, 619 P.2d 321, 322 (Utah 1980) (quoting Restatement of Torts § 500 emt. f). On the other hand, when an actor knows with " 'substantial certainty'" that his action will cause harm, he can " 'be said to intend the harm in which his act results'" Id. at 323 (quoting Restatement of Torts § 500 emt. £).

132 Walter claims reckless misconduct as an "alternative" to her intentional tort claims. However, her reckless misconduct claim is based on the same allegations that Stewart intentionally misled her in order to engage her in a sexual relationship, thereby nullifying her consent to that sexual contact. It is beyond question that a person initiating nonconsensual sexual contact must be deemed to know that such contact will be offensive. Therefore, an actor intending nonconsensual sexual contact also intends offense as a matter of law. Walter's theory that Stewart intentionally misled her into sexual contact thus fails to put the "reckless" element of reckless misconduct into dispute. For that reason, we affirm the trial court's grant of summary judgment on her reckless misconduct claim.

V. Breach of Contract & Battery

133 Walter articulates for the first time on appeal her breach of contract theory, including the contractual terms she believes Stewart breached. She does not, however, argue plain error or exceptional cireum-stances in the trial court's dismissal of that claim. Likewise, Walter argues for the first time on appeal that her battery claims are not barred by the statute of limitations. Again, however, she does not assert plain error or exceptional cireumstances in the dismissal of her battery elaims on that basis. We therefore decline to address these issues and affirm the grant of summary judgment on her breach of contract and battery claims. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996).

CONCLUSION

1 34 We reverse the summary judgment on Walter's claims for breach of fiduciary duty, fraud, and intentional infliction of emotional distress. We affirm the trial court's summary judgment on Walter's claims for reckless misconduct, breach of contract, and battery. We remand the case for such further proceedings as may now be appropriate.

€ 35 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . Walter asserts that "[t]he trial court abused its discretion" by converting Stewart's motion to dismiss into a motion for summary judgment. We disagree. "If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment...." Utah R. Civ. P. 12(b); see also Thayne v. Beneficial Utah, Inc., 874 P.2d 120, 124 (Utah 1994). Stewart and Walter submitted affidavits that were not excluded by the trial court. The trial court therefore properly treated the motion to dismiss as one for summary judgment.

      . Nor does Stewart's affidavit say anything regarding the misrepresentations Walter alleges he made.

      . In her complaint and in her brief on appeal, Walter states this cause of action as one for "negligence or reckless misconduct." In her complaint, Walter alleges that, in addition to breaching his duty of care by engaging in a sexual relationship with Walter, Stewart "also breached his duty of care ... by allowing the relationship to interfere with his professional judgment and the advice he gave" and also "by the mishandling of her case." Her complaint further alleges that she spent $100 on a fountain pen as compensation for his representation on an order to show cause that resulted from his bad advice. Additionally, she alleges a $350 expense as well as a delay in her adoption proceedings because of Stewart's failure to include her name change in the original divorce decree. While these allegations may be sufficient to maintain a legal malpractice claim for negligent representation, Walter does not urge this theory on appeal.


source: Caselaw Access Project

author: GREENWOOD, Judge:

license: Public Domain

text:
    2003 UT App 88
    STATE of Utah, Plaintiff and Appellee, v. Michael Allen NORTON, Defendant and Appellant.
    No. 20020109-CA.
    Court of Appeals of Utah.
    March 27, 2003.

      Gary L. Bell, Salt Lake City, for Appellant.
    Dean Saunders, Weber County Attorney's Office, Ogden, for Appellee.
    Before JACKSON, P.J., GREENWOOD, and ORME, JJ.
   OPINION

GREENWOOD, Judge:

T1 Michael Norton (Defendant) appeals his conviction for two counts of violating the Bail Bond Recovery Act, Utah Code Ann. § 58-11-107 (2002); one count of Assault, in violation of Utah Code Ann. § 76-5-102 (1999); and two counts of Unlawful Detention, in violation of Utah Code Ann. § 76-5-304 (1999). Defendant contends: (1) the trial court erred in rejecting his mistake of law defense, (2) the Bail Bond Recovery Act was applied as an unconstitutional strict liability offense, and (8) the trial court's refusal to hear requested testimony violated his due process right to a fair trial We affirm.

BACKGROUND

T2 On March 10, 2000, Defendant, as an agent of "A+24 Hour Bail Bonds," posted a $50,000 bond for Deloy Lindley (Lindley), resulting in Lindley's release from jail. Lindley signed a written contract pledging his truck, a stock trailer, and a snowmobile as collateral for the bond. Lindley agreed to pay Defendant $5,000 within two weeks. If Lindley did not or could not pay, Defendant was to sell whatever collateral necessary to satisfy the debt.

13 On or about March 20, Lindley called Defendant and told him to sell the truck, because he did not have the $5,000. Defendant became concerned about the value of Lindley's collateral.

T4 Defendant maintains that he then researched, on the Internet, the law about revoking a bond and also contacted the Cache County Attorney's Office. Defendant read Utah Code Ann. § 77-20-8.5 (1999), entitled "Sureties-Surrender of defendant-Arrest of defendant." This section referenced "Title 53, Chapter 10, Bail Bond Recovery." Id. § 77-20-8.5(8). However, the Bail Bond Recovery Act (the Act) had been renumbered as Chapter 11, because another Chapter 10 was enacted at the same legislative session. See id. compiler's notes. Based on this change, Defendant alleges that he did not find or read the Act. Defendant also claims he spoke to a Deputy County Attorney about revoking Lindley's bond.

5 Allegedly believing he could legally revoke Lindley's bond, on April 4, 2000, Defendant went to Lindley's residence, handcuffed him, and returned him to jail. Two days later, Lindley was released by the court. The judge who released Lindley commented that the "bail bondsman doesn't have any right to haul you off to jail." Apparently, Defendant made no effort to discover why the court had released Lindley, and never asked the court to revoke Lindley's bond.

T6 On April 16, Defendant and a co-worker returned to Lindley's residence, handcuffed him, and took custody of him after spraying him with pepper spray and "tackling" him when he attempted to flee. Lind-ley testified that he was punched, kicked, and hit with a rock. Lindley also testified that Defendant told him he was going to kill him. Law enforcement officers intervened and took Lindley to the hospital because of the effects of the pepper spray and complaints of being beaten by Defendant and his co-worker.

T7 It is undisputed that Defendant was not licensed as a Bail Recovery Agent or Bail Enforcement Agent, as required under the Act. See id. § 58-11-107 (2002). The State filed charges against Defendant for the two incidents of returning Lindley to jail in violation of the Act because Defendant was not properly licensed, two counts of Unlawful Detention, and one count of Assault.

T8 During the course of the proceedings, Defendant submitted a pretrial motion arguing he should be permitted to assert a mistake of law defense. See id. § 76-2-804 (1999). After an evidentiary hearing, the court denied Defendant's motion. A jury trial was held November 14-15, 2001. During the jury trial, Defendant and his coworker testified about their efforts to research the legality of revoking Lindley's bond. At the close of testimony, Defendant's counsel asked to recall Defendant; the request was denied. Defendant was found guilty on all counts and this appeal followed.

ISSUES AND STANDARDS OF REVIEW

19 First, Defendant asserts the trial court erred when it ruled that Defendant was not entitled to assert a mistake of law defense under Utah Code Ann. § 76-2-304(2)(b)(ii) (1999). A question of statutory interpretation is reviewed "for correctness, granting no deference to the trial court's ruling." In re W.C.P., 1999 UT App 35, ¶ 5, 974 P.2d 302. After hearing testimony on this issue, the trial court found that Defendant did not rely on a written interpretation of the statute. "A trial court's findings of fact are reviewed under a clearly erroneous standard." Mule-Hide Prods. Co. v. White, 2002 UT App 1, ¶ 11, 40 P.3d 1155.

110 Second, Defendant argues the trial court erred in applying the Act as an unconstitutional striet liability offense. This issue is raised for the first time on appeal. An appellate court may address an issue raised for the first time on appeal if " 'plain error'" or " 'exceptional cireumstances'" is established. State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App.1996) (citations omitted). If neither applies, the court may decline to consider the issue. However, necessarily included in Defendant's argument is his claim that the jury was improperly instructed. Challenges to jury instructions are reviewed " 'under a "correctness" standard."" Cheves v. Williams, 1999 UT 86, ¶ 20, 993 P.2d 191 (citation omitted).

T11 Third, Defendant argues the trial court violated his due process right to a fair trial when it prohibited his further testimony. The admissibility of evidence is reviewed for "abuse of discretion or reasonability. '[EJven where error is found, reversal is appropriate only in those cases where, after review of all the evidence presented at trial, it appears that "absent the error, there is a reasonable likelihood that a different result would have been reached."'" Mule-Hide Prods. Co., 2002 UT App 1 at ¶ 12, 40 P.3d 1155 (citations omitted).

ANALYSIS

I. Mistake of Law Defense

1 12 Defendant argues the trial court erred when it rejected his mistake of law defense. The State counters that, based on Utah Code Ann. § 76-2-304(@)(b)@M) (1999), the trial court properly rejected the defense. At issue, therefore, is whether the trial court correctly interpreted section 76-2-804 when it concluded, "The ignorance of law defense requires that the official statement or interpretation of the law be in writing."

T13 Because Defendant did not rely on a written interpretation of the law, the trial court held that the necessary elements of a mistake of law defense had not been shown and the defense was inapplicable. Utah's ignorance or mistake of law statute states:

(2) Ignorance or mistake concerning the existence or meaning of a penal law is no defense to a crime unless:
(b) His ignorance or mistake resulted from the actor's reasonable reliance upon:
(M) A written interpretation of the law contained in an opinion of a court of record or made by a public servant charged by law with responsibility for interpreting the law in question.

Utah Code Ann. § 76-2-804 (emphasis added). When interpreting a statute, the court's "primary goal ... is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve. [The court] need look beyond the plain language only if [it] find[s] some ambiguity." State v. Lusk, 2001 UT 102, ¶ 19, 37 P.3d 1103 (quotations and citation omitted). The language of section 76-2-304 clearly and unambiguously requires a written interpretation, by either a court of record or a public servant, in order for mistake of law to be an available defense.

T14 The trial court heard testimony concerning Defendant's claim that mistake of law was an applicable defense. A Deputy Cache County Attorney testified about his conversation with a police officer, who had received a complaint from Defendant about Lindley's bond agreement. The Deputy Attorney testified, "To the best of my recollection, I didn't ever have a substantive conversation with [Defendant] individually about the issue of whether or not he could pick up Mr. Lindley." Accordingly, the court found that, while Defendant may have had a conversation about revoking bail with the Deputy Attorney, the conversation was casual and informal. The court also found the Deputy Attorney did not have all the relevant facts to make a formal interpretation of the law and did not reduce his statements to writing. The court held that section 762-304 requires a written interpretation of the law, and therefore the defense was not available to Defendant. We see no error in the court's conclusions.

115 Because Defendant did not rely on a written interpretation of the law, the trial court did not err when it held that the defense was inapplicable.

II. Bail Bond Recovery Act as an Unconstitutional Strict Liability Offense

116 Defendant argues for the first time on appeal that the trial court's pretrial ruling rejecting his mistake of law defense resulted in application of the Act as an unconstitutional strict lability offense "We do not address issues raised for the first time on appeal unless specific grounds for doing so are presented to this court." Utah Med. Prod., Inc. v. Searcy, 958 P.2d 228, 233-34 (Utah 1998). Defendant also fails to argue that the trial court committed plain error or that exceptional cireumstances exist. See State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App.1996) (stating that an appellate court may address an issue raised for the first time on appeal if " 'plain error;" "'exceptional circumstances," " or, in some situations, ineffective assistance of counsel is established (citations omitted)).

{17 However, Defendant seems to also claim that the jury was improperly instructed to apply a strict liability standard. He maintains that the State was permitted "to carry its burden by simply showing the prohibited conduct occurred"; that had the jury been properly instructed, the State would have been required to carry its burden of proof of Defendant's mens rea.

1 18 Defendant's argument that he did not intend to violate the Act, and that the jury was not properly instructed as to his intent, is based on the " 'basic proposition that a person cannot be found guilty of a eriminal offense unless he [or she] harbors a requisite criminal state of mind or unless the prohibited act is based on strict liability." State v. W.C.P., 1999 UT App 35, ¶ 6, 974 P.2d 302 (alteration in original) (quoting State v. Elton, 680 P.2d 727, 728 (Utah 1984)). Utah Code Ann. § 76-2-101 (1999) states:

No person is guilty of an offense unless his conduct is prohibited by law and:
(1) He acts intentionally, knowingly, recklessly, with criminal negligence, or with a mental state otherwise specified in the statute defining the offense, as the definition of the offense requires; or
(2) His acts constitute an offense involving strict lability.

Further, section 762-102 states that offenses "involve strict liability if the statute defining the offense clearly indicates a legislative purpose to impose criminal responsibility for commission of the conduct prohibited by the state without requiring proof of any culpable mental state." Id. § 76-2-102. In this case, there is no indication of legislative intent to impose strict liability for violation of the Act. Therefore, the culpable mental state required is "intent, knowledge, or recklessness." Id.

{19 The trial court's jury instructions defined the mental states of intentionally and knowingly, and instructed the jury that it needed to find Defendant acted with one of these mental states. For instance, instruction number eight states:

Before you can convict the Defendant ... of the crime of Operating as a Bail Enforcement Agent or Bail Recovery Agent Without a License, you must find from the evidence beyond a reasonable doubt all of the following elements of the erime: One, that said Defendant ... (c) intentionally or knowingly, without authority of law, (d) acted or assumed to act or represented himself to be licensed ... when, in fact, he was not licensed.

(Emphasis added.) Instructions ten and eleven define knowing and intentional.

120 Defendant confuses the intent to violate the law with the intent or requisite mental state to do the prohibited act. Only the latter is required-not a specific intent to violate the law. Under the instructions given, the jury could find that Defendant intended "to engage in the conduct or cause the result," as the definition of "intentional" requires. Utah Code Ann. § 76-2-108(1) (1999).

121 The jury was not instructed that the State did not have to prove the appropriate mental state. Rather, the jury instructions defined the requisite mental states. Moreover, the State argued at trial that Defendant's conscious objective was to detain Lindley, spray him with pepper spray, tackle him, and return him to jail. The jury was correctly instructed. Defendant's argument that the Act was applied as an unconstitutional strict liability offense thus fails.

III. Due Process Violation

T22 Finally, Defendant argues that his due process right to a fair trial was violated when he was prohibited from testifying about his efforts to research the legality of revoking the bond. "While relevant evidence is generally admissible ... a trial court has broad discretion to determine whether proffered evidence is relevant, and we will find error in a relevancy ruling only if the trial court has abused its discretion." State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (alteration in original) (quotations and citation omitted). Because the trial court properly held that the mistake of law defense was not available to Defendant, testimony relevant only to that defense was properly excluded. See State v. Harding, 635 P.2d 33, 34 (Utah 1981) (stating where "there is no reasonable basis in the evidence to support the defense or its essential components, it is not error for the trial judge to ... refuse to instruct the jury as to the defense"); see also Utah R. Evid. 402 (stating "evidence which is not relevant is not admissible").

1 23 Moreover, despite the trial court's ruling that the mistake of law defense was not applicable, some testimony about Defendant's efforts to understand the law was received. Specifically, Defendant testified that he looked up the law regarding bond revocation on the Internet, and then called the Cache County Attorney's office. Defendant's coworker testified that they read the law together, and that Defendant spoke with an attorney about the law. Counsel for Defendant discussed, in his opening and closing statements, the steps Defendant took to determine the legality of revoking the bond.

124 We conclude that the trial court did not abuse its discretion when it prevented Defendant's further testimony, which was cumulative and relevant only to his rejected mistake of law defense.

CONCLUSION

125 The trial court did not err when it ruled Defendant was not entitled to raise a mistake of law defense, under Utah Code Ann. § 76-2-804(2)(b)(ii) (1999), because Defendant did not rely on a written interpretation of the law. Second, although we may decline to consider Defendant's argument that the Act as applied by the trial court was an unconstitutional strict liability offense because it was raised for the first time on appeal, we conclude there was no error because the trial court properly instructed the jury. Third, the trial court did not violate Defendant's due process rights when it prohibited Defendant from giving further testimony. We therefore affirm.

26 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and GREGORY K. ORME, Judge.

      . At trial, Defendant testified that he believed he was making a legal citizen's arrest.

      . At some point after Lindley's release, Defendant called 911 requesting help from officers in returning Lindley to jail. Two sheriff's deputies met him for this purpose, but Lindley was not home.

      . Defendant states that this issue was preserved for appeal during the March 30, 2001 evidentiary hearing, and during the November 14-15, 2001 jury trial. However, this argument is not mentioned in either of these hearings.


author: THORNE, Judge.

text:
    2003 UT App 91
    Steven FISHER, Petitioner, v. Nanette FISHER, Respondent. State of Utah, Office of Recovery Services, Appellant and Cross-Appellee, v. M. Dirk Eastmond, Appellee and Cross-Appellant.
    No. 20010771-CA.
    Court of Appeals of Utah.
    March 27, 2003.

      Karma K. Dixon, Assistant Attorney General, Salt Lake City, for Appellant.
    M. Dirk Eastmond, Sandy, Appellee pro se.
    Before Judges BENCH, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge.

T1 The State of Utah Office of Recovery Services (ORS) appeals from an order granting M. Dirk Eastmond an attorney lien against past-due child support payments collected by ORS on behalf of Eastmond's former client, Nanette Fisher (Wife). East-mond cross appeals that portion of the trial court's order that prevents the lien from attaching to future child support payments. We reverse in part and dismiss in part.

BACKGROUND

T2 In August 1999, Wife retained East-mond to represent her in a divorcee action. Eastmond obtained a judgment for all past-due child support and an award of future child support payments. In December 1999, Wife opened a case with ORS seeking enforcement of this child support order. After ORS located Wife's ex-husband and garnished his wages, Eastmond filed a notice of attorney lien in the underlying divorcee action seeking to attach the funds collected by ORS. ORS intervened in the underlying divorce action and filed a motion to quash the attorney lien.

T3 The court commissioner assigned to the case recommended that ORS§'s motion to quash be granted. Eastmond objected and the matter was scheduled for hearing. At the hearing, the district court rejected in part and accepted in part the commissioner's recommendation to quash Eastmond's lien. The court found that Eastmond could assert his lien against the past-due child support collected by ORS but not against future child support payments.

T 4 At this hearing, Eastmond also entered an appearance on behalf of Wife. The court informed Eastmond that his interest was adverse to that of Wife, and told Eastmond that he could not represent her. Later in the hearing, Eastmond moved to withdraw as Wife's attorney.

T5 After the court ruled, Eastmond questioned the court about the procedure for appealing the ruling, indicating that he was in "no position to appeal." Eastmond asked the court to separate the attorney lien from the underlying divorce action, but his request was denied. In its written order, the court allowed Eastmond to withdraw as Wife's attorney and allowed Eastmond "to continue as a Party-in-Interest in this matter for the purpose of any further proceeding on the issues relating to his attorney[ ] lien, including any appeal, and it is not necessary to bifurcate the proceeding or assign a miscellaneous case number, as counsel suggests."

T6 Both ORS and Eastmond appeal.

ISSUES AND STANDARD OF REVIEW

T7 ORS argues that the trial court erred in allowing Eastmond to attach his attorney lien to funds collected by ORS. Eastmond cross appeals, arguing that the trial court erred in limiting his attorney lien to past-due child support payments. Both issues are resolved by reference to Utah statutes and this court's interpretation of those statutes. " Matters of statutory construction are questions of law that are reviewed for correctness." " In re D.B., 2002 UT App 314, ¶ 6, 57 P.3d 1102 (quoting Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997)).

ANALYSIS

I. Past-Due Child Support

18 ORS argues the trial court erred in allowing Eastmond's attorney lien to attach to past-due child support payments. Resolution of this question requires that we examine the attorney lien statute, the statutes that created ORS, and the statutes that apply generally to governmental entities.

9 Eastmond filed his attorney lien pursuant to the attorney lien statute, Utah Code Ann. § 78-51-41 (2000), which provides:

The compensation of an attorney and counselor for services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim or at the time that the attorney and client enter into a written or oral employment agreement, the attorney who is so employed has a lien upon the client's cause of action or counterclaim, which attaches to any settlement, verdict, report, decision, or judgment in the client's favor and to the proceeds thereof in whosoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment. Any written employment agreement shall contain a statement that the attorney has a lien upon the client's cause of action or counterclaim.

Utah Code Ann. § 78-51-41 (2000)(emphasis added.)

[ 10 Utah Code Ann. § 62A-11-102 (2000) creates "within the Department [of Human Services] the Office of Recovery Services." Pursuant to Utah Code Ann. § 62A-11-104 (Supp.2002), this department has the power and duty

(1) to provide child support services if:
(a) the office has received an application for child support services;
(b) the state has provided public assistance; or
(c) a child lives out of the home in the protective custody, temporary custody, or custody or care of the state or another party for at least 30 days.
(7) to implement income withholding for collection of child support in accordance with Part 4 of this chapter;
(9) to establish and maintain the state case registry in the manner required by the Social Security Act, 42 U.S.C. [§ ] 6542 ....

Id. Pursuant to Utah Code Ann. § 106 (2000), ORS "may file judicial proceedings as a real party in interest to establish, modify, and enforce a support order in the name of the state, any department of the state, [ORS], or an obligee." (Emphasis added.) Finally, Utah Code Ann. § 63-30-22(2) (1997) provides that "[eJxecution, attachment, or garnishment may not issue against a governmental entity."

11 This court has long held that " '[wlhen interpreting statutes, our primary goal is to evince the "true intent and purpose of the Legislature." * " Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 20, 63 P.3d 705 (citation and quotations omitted); see also id. at T 21 ("When interpreting statutes, we determine the statute's meaning by first looking to the statute's plain language, and give effect to the plain language unless the language is ambiguous." (citation and quotations omitted)).

112 Utah Code Ann. § 78-51-41 allows attorneys to contract with clients for payment of attorney fees and allows attorneys to file liens against clients' claims or counterclaims. However, pursuant to the plain language of section 78-51-41, the parties cannot provide by contract for payment that is "restrained by law." Utah Code Ann. § 78-51-41.

113 Utah Code Ann. § 63-830-22(2) plainly provides that "[elxecution, attachment, or garnishment may not issue against a governmental entity." We view section 63-30-22 to be a "restrain[t] of law" as the phrase is used in section 78-51-41. Utah Code Ann. § 78-51-41. The restrictions imposed by section 63-30-22 cannot be ignored or contracted away. See Utah Code Ann. § 78-51-41. Thus, liens of any kind, even those liens created pursuant to section 78-51-41, may not attach against a governmental entity.

T 14 After reviewing the plain language of sections 62A-11-102 and 62A-11-104 to -106, we conclude that ORS is a governmental entity as the term is used in section 63-380-22(2). See Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1195 n. 2 (Utah Ct.App.1991) (noting ORS is "an enforcement arm of the Department of Social Services"). When Wife sought the assistance of ORS to enforce the child support order, ORS stood in her place and collected child support payments on her behalf. Consequently, the funds Eastmond seeks to attach are in the possession and control of ORS, a governmental agency that is immune from execution, attachment, or garnishment. See Utah Code Ann. § 63-30-22(2). As such, Eastmond's lien cannot attach to funds in ORS's control.

II. Future Child Support Payments

115 Before addressing Eastmond's cross appeal asserting that he should have been granted a lien on ongoing child support, we must first determine whether the trial court was vested with subject matter jurisdiction over his claim "[QJuestions regarding subject matter jurisdiction may be raised at any time because such issues determine whether a court has authority to address the merits of a particular case." Housing Auth. v. Snyder, 2002 UT 28,¶ 11, 44 P.3d 724. "[Slubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable." Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995). "Further, because it is a threshold issue, we address jurisdictional questions before resolving other claims." Snyder, 2002 UT 28 at ¶ 11, 44 P.3d 724.

16 An attorney seeking to enforce a lien must either bring a separate action to enforce his attorney lien or intervene in the underlying suit prior to judgment being entered. See Ostler v. Buhler, 1999 UT 99, ¶ 5 n. 3, 989 P.2d 1073 (noting that absent " 'special cireumstances' " attorney liens should be enforced in a separate action (citation omitted); Albrechtsen v. Albrechtsen, 18 Utah 2d 55, 414 P.2d 970, 971 (1966) (finding that attorney who did not intervene in underlying suit had no standing to appeal denial of garnishment). There being no question that Eastmond did not file a separate action to enforce his attorney lien, we focus our analysis on whether Eastmond properly intervened in the underlying action.

T17 In Ostler, an attorney filed a lien to collect his fees from the proceeds of a settlement. 1999 UT 99 at ¶ 2, 989 P.2d 1073. The attorney moved to have the proceeds deposited with the court and then requested the court pay him directly. See id. at ¶¶ 2, 3. The client did not respond to these motions, and they were granted. See id. at 13. The client then retained new counsel and objected to the court's ruling on the motions, claiming the court "lacked jurisdiction to enter an order in favor of a non-party." Id. at ¶ 4 (footnote omitted).

1 18 On appeal, the supreme court concluded that as a non-party to the underlying action the attorney had to file a motion to intervene, pursuant to rule 24 of the Utah Rules of Civil Procedure, for the court to have jurisdiction over his claim. See id. at T7. The court acknowledged, however, that the parties could waive the need for formal intervention. See id. However, the court determined that no waiver had occurred because the attorney's motions

were postjudgment motions that in no way affected the merits of the underlying action, its settlement, or its subsequent dismissal. In essence, the case between the parties had ended before [the attorney] attempted to intervene. Under such circumstances, we can see no reason to require a party to respond to a non-party's post-judgment motions at the risk of having those non-parties treated as proper interveners.

Id. at 19 (emphasis added) (footnote omitted). The court further specifically concluded that "[the general rule is that 'intervention is not to be permitted after entry of judgment." " Id. at 19 n. 8 (citation omitted). Because the parties had not waived formal intervention, the supreme court concluded that the attorney had failed to properly intervene and that the attorney lien was filed after judgment. See id. at 19. The court then determined that the trial court had no jurisdiction to enforce the attorney lien. See id.

119 Here, Eastmond did not attempt to formally intervene, nor did the parties waive the intervention requirement. In its memorandum in support of the motion to quash, ORS argued that the trial court did not have jurisdiction over Eastmond because the court could not foreclose the lien in the original action out of which the fees arose. ORS also argued that Eastmond "[did] not have standing to enforce his attorney lien in [that] action" because he "[was] not a party to his client's divorcee action." Thus, ORS opposed Eastmond's presence in the suit and has not waived the requirement that he formally intervene. Eastmond did not intervene and, consequently, was not a party to the divorce action. Thus, the trial court had no jurisdiction to enforce his attorney lien.

1 20 Moreover, we conclude that Eastmond could not have successfully intervened in the divorce action even had he sought to do so. As the court in Ostler stated, " "intervention is not to be permitted after entry of judgment? " Id. at T9 n. 3 (citation omitted). Here, Eastmond filed his notice of attorney lien after the trial court entered its order awarding past-due child support. This order constitutes an "entry of judgment" that precludes Eastmond's intervention. Thus, we conclude that the only remedy available to Eastmond was to file a separate action. See Neilson v. Neilson, 780 P2d 1264, 1271 (Utah Ct.App.1989) (stating "the statutory charging lien may not be foreclosed by way of the attorney's request for that relief in the original action; instead, counsel must bring a separate action against the client to determine the amount of the fee and foreclose the lien").

1 21 Thus, while the trial court in this case had subject matter jurisdiction to enforce attorney liens, see Utah Code Ann. §§ 78-8-4(1) (2002) and 78-51-41, it did not have subject matter jurisdiction over Eastmond's specific claim because Eastmond had not properly intervened in the action or otherwise presented his claim to the trial court. As the court in Sache v. Wallace, 101 Minn. 169, 112 N.W. 386, 387 (1907), stated:

Though [a court] has general jurisdiction over the subject-matter, ... its power to decide and determine matters in dispute between the parties in a given action is limited to those questions which are brought before it by the pleadings. When the court goes beyond and outside the issues made by the pleadings, ... the authority of the court is exceeded, even though it had jurisdiction of the general subject of the matters adjudicated.

(Emphasis added.) Here, we conclude that Eastmond did not properly intervene in the suit and that his claims were not before the trial court.

CONCLUSION

122 In summary, at the time Eastmond attempted to enforce his lien he had not moved to intervene and the need for intervention had not been waived. Furthermore, had Eastmond sought to intervene he would not have been successful because the trial court had already entered a final judgment. Accordingly, the trial court did not have jurisdiction over Eastmond's claim. Because the trial court did not have jurisdiction, neither do we, and we dismiss Eastmond's cross appeal.

123 We reverse the trial court's order attaching Eastmond's lien to funds collected by ORS. We dismiss Eastmond's cross appeal for lack of jurisdiction.

WE CONCUR: RUSSELL W. BENCH and PAMELA T. GREENWOOD, Judges.

      . ORS was allowed to intervene as an interested party because the State was providing, or had provided, public assistance to Wife's child and was entitled to reimbursement from Wife. See Utah Code Ann. §§ 62A-11-301 to -333 (2000); 62A-11-401 to -414 (2000); 78-45-9 (2001).

      . Initially, Eastmond filed a Notice of Attorney Lien, but when ORS opposed the lien, the trial court ruled on the enforceability of the lien. Accordingly, we review the propriety of the trial court's enforcement of Eastmond's attorney lien in the underlying divorce action.

      . Utah Code Ann. § 78-51-41 (2000) was repealed and replaced by another attorney lien statute codified at Utah Code Ann. § 38-2-7 (2001). We address section 78-51-41, as it was the relevant statute at the time Eastmond filed his lien.

      . Eastmond argues that Eastmond v. Neilson, 912 P.2d 994 (Utah Ct.App.1996), should control the outcome of this case. There, relying upon Hampton v. Hampton, 85 Utah 338, 39 P.2d 703, 706 (1935), we noted that "an attorney lien [could] be satisfied from a child support obligation." Neilson, 912 P.2d at 996. In opposition, the State asks that we overrule Neilson on the grounds that current federal law makes the reasoning in Neilson unsound. Because we conclude that ORS's identity as a governmental entity precludes any attorney lien from attaching to funds in ORS's possession, we need not revisit our decision in Neilson.

      . " 'Subject matter jurisdiction is the power and authority of the court to determine a controversy and without which it cannot proceed.' " Trans-world Sys. v. Robison, 796 P.2d 407, 409 (Utah Ct.App.1990) (quoting Thompson v. Jackson, 743 P.2d 1230, 1232 (Utah Ct.App.1987) (per curiam)).

      . That the order was entitled a "temporary" order is not fatal, for we construe the order only as being "temporary" in relation to future child support payments. In contrast, the trial court made a finding regarding the amount of past-due child support, and this constitutes a "final ruling" for the purpose of determining whether a party can intervene.

      . Eastmond did ask the court to "bifurcate" his attorney lien from the divorce action. However, we conclude that Eastmond initially should have filed a separate action rather than requesting that the court bifurcate the original action, because the court had already issued a final order regrading past-due child support.

      . We also note that rule 1.7 of the Utah Rules of Professional Conduct prevented Eastmond from intervening in the suit while acting as Wife's counsel. Pursuant to rule 1.7, "[al lawyer shall not represent a client if the representation of that client may be materially limited by ... the lawyer's own interest." Utah Rules of Professional Conduct 1.7. Here, it is clear that at the time Eastmond sought to enforce his attorney lien, Eastmond's interests were in conflict with Wife's. Both Eastmond and Wife claimed an interest in the child support payments. By seeking to enforce his attorney lien on these funds, Eastmond placed his own interest before that of his client. Thus, even had Eastmond sought to intervene, rule 1.7 prevented intervention absent East-mond's withdrawal as Wife's counsel. See also Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (1996) ("As fiduciaries, attorneys have a legal duty 'to represent the client with undivided loyalty, to preserve the client's confidences, and to disclose any material matters bearing upon the representation [of the client].' " (citation omitted)).