author: Justice Petersen, opinion of the Court:

text:
    SALT LAKE CITY CORPORATION, Appellee, v. JORDAN RIVER RESTORATION NETWORK, Jeff Salt, State Records Committee, and Salt Lake City Records Appeals Board, Appellants.
    No. 20160098
    Supreme Court of Utah.
    Filed December 20, 2018
    Margaret D. Plane, Catherine L. Brabson, Salt Lake City, for appellee Salt Lake City Corporation
    Karthik Nadesan, Salt Lake City, for appellants Jordan River Restoration Network and Jeff Salt
    Paul H. Tonks, Brent A. Burnett, Salt Lake City, for appellant State Records Committee
    Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.
    On Direct Appeal
   Justice Petersen, opinion of the Court:

INTRODUCTION

¶ 1 The Jordan River Restoration Network and its founder Jeff Salt (collectively, JRRN) filed a request with Salt Lake City Corporation (City) seeking every document related to the planned construction of a sports complex along the Jordan River. In the request, JRRN also asked the City to provide the documents at no charge. The City granted the document request, but denied JRRN's fee waiver request.

¶ 2 JRRN appealed the City's fee waiver denial to the City Records Appeals Board, which ruled in JRRN's favor. The City appealed that decision to the State Records Committee, which also ruled in favor of JRRN. The City then petitioned for judicial review of these administrative orders in the district court. The court ruled in favor of the City, concluding its fee waiver denial was reasonable.

¶ 3 JRRN challenges a number of the district court's procedural and substantive rulings. We conclude that the court conducted the review contemplated by the Government Records Access and Management Act (GRAMA). And while we find that the court did make some procedural errors, each was harmless. Accordingly, we affirm.

BACKGROUND

¶ 4 JRRN is a coalition of individuals and organizations committed to restoring and preserving the Jordan River and the surrounding area. When JRRN's founder, Jeff Salt, learned of the City's plan to develop a sports complex along the river in Salt Lake County, he was concerned. He ultimately came to oppose the plan altogether.

¶ 5 To obtain information about the project, JRRN filed somewhere between five to twenty GRAMA requests with the City. The City provided "roughly 700 pages of records" to JRRN free of charge. However, JRRN did not find this information to be sufficient and filed an extensive and detailed GRAMA request on March 10, 2010, that effectively sought every document related to the project. This is the request at issue in this case.

¶ 6 In this request, JRRN asked for "all records in the City's possession that related to the Project," including "all agreements related to the Project, all correspondence and meeting information, all site selection analysis, all budgets, and all engineering plans." Some of the records sought had already been provided in response to JRRN's earlier requests.

¶ 7 JRRN also asked the City to waive any fee associated with producing the records. Salt justified the fee waiver request by including on the request form: "nonprofit organization, information for public good and education, not used for profit."

¶ 8 While the City agreed to provide JRRN with the documents it had requested, it denied the fee waiver request. By letter, the City informed JRRN that the estimated cost of providing the requested records would be two hundred dollars, and JRRN would have to pay that amount "before any response to the GRAMA request [could] begin." In the same letter, the City informed JRRN that it could appeal the City's decision to the City Records Appeals Board.

¶ 9 JRRN did so. After a hearing, the City Records Appeals Board agreed with JRRN, and ordered the City to provide the requested records without charge. The Appeals Board also found that the request was "voluminous." The result of this finding was to extend the period of time in which the City was required to fulfill the request from ten business days to forty-five days from the date of the hearing.

¶ 10 Both parties appealed to the State Records Committee. JRRN appealed the Appeals Board's finding that the request was voluminous and the City cross-appealed the determination that JRRN was entitled to a fee waiver. After a hearing, the Records Committee denied the City's cross-appeal.

¶ 11 The City filed a petition for judicial review in the district court of the orders of both the Appeals Board and the Records Committee. After some initial motion practice followed by a significant period of inactivity, the parties eventually exchanged initial disclosures, engaged in fact discovery, and JRRN disclosed an expert witness. Both sides then filed motions for summary judgment.

¶ 12 JRRN argued that the City's petition for judicial review should be dismissed because it lacked standing to appeal the decision of its own City Records Appeals Board and its internal appeals process did not strictly comply with the GRAMA statute. The district court denied JRRN's motion. But the court partially granted the City's motion, entering summary judgment against JRRN on each of its counterclaims. However, the court found that there were "factual issues as to whether the City's decision to deny the fee waiver was reasonable." Accordingly, the court could not grant summary judgment on that claim and informed the parties that it would resolve the issue in a trial de novo .

¶ 13 The City then filed a motion asking the court to determine what the standard of review would be and which party would have the burden of proof at the trial de novo . In a written order, the court ruled that the burden of going forward would be on "Respondents [JRRN] as the party seeking relief in the form of a Court-ordered fee waiver from the City." The court stated that it would review "the City's decision to deny the fee waiver and not the decision or proceedings of the City Appeals Board and State Records Committee." The court further explained: "At this state of review, those proceedings are not relevant. The evidence cannot be limited to the record before the State Records Committee because there is not a record."

¶ 14 After conducting the trial de novo , the district court upheld the City's decision to deny the fee waiver. The court issued detailed Findings of Fact and Conclusions of Law, and ultimately held that "the City was entitled to charge for the costs of [fulfilling the GRAMA Request]."

¶ 15 JRRN then filed this appeal. JRRN asserts that the court should have granted summary judgment against the City because it did not have standing to petition for judicial review, and its internal appeals procedure did not strictly comply with the GRAMA statute. JRRN also argues the court should not have granted summary judgment against it on its counterclaims. With regard to the bench trial, JRRN contends that the court: (1) should have limited its review to the administrative record rather than considering new evidence, (2) applied the wrong standard of review, (3) should have assigned the burden of proof to the City, and (4) misapplied the law.

¶ 16 We have jurisdiction to hear this case pursuant to Utah Code section 78A-3-102(3)(j).

STANDARDS OF REVIEW

¶ 17 JRRN raises a number of legal issues that we review for correctness, without any deference to the holdings of the trial court.

¶ 18 Regarding our review of the district court's ruling against JRRN on summary judgment, "the district court's legal conclusions and ultimate grant or denial of summary judgment are reviewed for correctness." Massey v. Griffiths , 2007 UT 10, ¶ 8, 152 P.3d 312 (citing View Condo. Owners Ass'n v. MSICO, L.L.C. , 2005 UT 91, ¶ 17, 127 P.3d 697 ); see also Graham v. Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. , 1999 UT App 136, ¶ 7, 979 P.2d 363 ("On appeal from a grant of summary judgment, we view the evidence in the light most favorable to the non moving party and affirm only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law.").

¶ 19 JRRN's challenge to the district court's conclusion that the City had standing is a mixed question of law and fact. "[W]hen reviewing a lower court's standing determination we have stated that 'the question of whether a given individual or association has standing to request a particular relief is primarily a question of law, although there may be factual findings that bear on the issue.' " Utah Chapter of Sierra Club v. Utah Air Quality Bd. , 2006 UT 74, ¶ 13, 148 P.3d 960 (quoting Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997) ). We have acknowledged a spectrum of deference for mixed questions, but have ultimately determined that "[l]aw-like mixed questions are reviewed de novo, while fact-like mixed questions are reviewed deferentially." Sawyer v. Dep't of Workforce Servs. , 2015 UT 33, ¶¶ 10-11, 345 P.3d 1253. Since this is a mixed question of law and fact that is primarily a question of law, we review the district court's determination for correctness. See id. ¶ 11.

¶ 20 The determination of the appropriate standard of review is a question of law that we review for correctness. See Drake v. Indus. Comm'n of Utah , 939 P.2d 177, 181 (Utah 1997). The district court's allocation of the burden of proof is also a question of law that we review for correctness, Beaver Cty. v. Utah State Tax Comm'n , 916 P.2d 344, 357 (Utah 1996), with "no deference to the district court's legal conclusions." Salt Lake City Corp. v. Jordan River Restoration Network , 2012 UT 84, ¶ 32, 299 P.3d 990 (citation omitted) (internal quotation marks omitted).

¶ 21 We review the district court's application of GRAMA for correctness. State v. Graham , 2006 UT 43, ¶ 16 n.7, 143 P.3d 268.

ANALYSIS

¶ 22 This case presents questions about the procedural steps the district court took in hearing the case, and whether the court's ultimate decisions on the merits were correct. First, we address the court's summary judgment rulings. We then take up JRRN's challenges to the court's handling of the trial de novo regarding the standard of review, the burden of proof, and the scope of the review. Finally, we assess whether the court correctly applied GRAMA.

I. SUMMARY JUDGMENT

A. Standing

¶ 23 JRRN claims the district court should have granted summary judgment against the City because the City lacked standing to petition for judicial review. JRRN reasons that the City should not have been allowed to appeal the decision of its own City Records Appeals Board, so the City lost standing after that point in the proceedings. Before addressing this argument, it is helpful to review the avenues GRAMA establishes for appealing the denial of a fee waiver request.

¶ 24 GRAMA permits a governmental entity to charge a reasonable fee to recoup the actual cost of providing records in response to a GRAMA request. UTAH CODE § 63G-2-203(1) (2010). But the statute encourages entities to fulfill a record request without charge when "releasing the record primarily benefits the public rather than a person," among other reasons. Id. § 63G-2-203(4)(a). This statutory language gives a government entity discretion-it encourages but does not mandate an entity to waive its costs when a request benefits the public.

¶ 25 But despite the discretionary nature of this provision, a requester who believes a government entity's fee waiver denial was unreasonable can challenge the denial in the same way a person appeals the denial of a record request. Id. § 63G-2-203(6)(a). First, the requester can appeal the denial to the entity's chief administrative officer. Id. § 63G-2-401. If the chief administrative officer denies the request, the requester may appeal the denial to the State Records Committee, id. § 63G-2-403, or petition for judicial review in the district court, id. § 63G-2-404.

¶ 26 GRAMA also allows, but does not require, a political subdivision such as the City to adopt its own internal appeals process. Id. § 63G-2-701. The City did this and created the City Records Appeals Board. See SALT LAKE CITY, UTAH, CODE § 2.64.140 (2010). Any appeal from an appeals board established by a political subdivision is to be by petition for judicial review to the district court. UTAH CODE § 63G-2-701(6).

¶ 27 A political subdivision may also provide an additional level of administrative review to the State Records Committee. Id. § 63G-2-701(5). Any party to that proceeding may petition for judicial review to the district court. Id. § 63G-2-404(1)(a).

¶ 28 In this case, the City had not designated a chief administrative officer, so JRRN's initial appeal was to the City Records Appeals Board. Both parties appealed from the Appeals Board to the Records Committee. After the Records Committee found in favor of JRRN, the City petitioned for judicial review in the district court.

¶ 29 JRRN argues that the City did not have standing to petition for judicial review because it should not have been allowed to challenge the decision of its own City Records Appeals Board. Essentially JRRN argues that, although it appealed part of the decision of the Appeals Board to the State Records Committee, the City should not have been allowed to do the same. And because the City should not have been permitted its intermediate appeal to the State Records Committee, its standing here is compromised. We reject this argument.

¶ 30 First, nothing in GRAMA prevents a city from appealing a decision made by a municipal-level appeals board. Section 701 governs a political subdivision's internal appeals process, if it adopts one. The provision discussing appeals from a municipal appeals board does not limit which parties are permitted to appeal. It directs: "Appeals of the decisions of the appeals boards established by political subdivisions shall be by petition for judicial review to the district court." UTAH CODE § 63G-2-701(6). The sentence does not contain a subject limiting who can appeal the decisions of municipal appeals boards.

¶ 31 This provision also instructs that a judicial review proceeding should be in accordance with sections 402 and 404 of GRAMA. See id. § 63G-2-701(6). Neither section prohibits the City from challenging a decision of the Appeals Board. See id. §§ 63G-2-402, -404. JRRN points to section 402(1) as limiting the City's right to appeal because it specifies that a "requester" may petition for judicial review if a chief administrative officer of a governmental entity denies a records request. But this case does not involve a denial from a chief administrative officer, so that section does not govern here.

¶ 32 And it makes sense that GRAMA allows only a requester to appeal a decision of a chief administrative officer but does not similarly limit who may appeal a decision of a municipal appeals board. A chief administrative officer is employed by and, in this context, speaks for the government entity. If GRAMA permitted a city to appeal a decision of its chief administrative officer, the city would effectively be appealing itself. But a municipal appeals board is different. Section 701 requires such a board to include one government employee and two public members. See id. § 63G-2-701(5). It is designed to have some independence from the governmental entity that created it. So it is logical that the legislature would permit a city to appeal from its municipal appeals board but not its chief administrative officer.

¶ 33 The plain language of GRAMA reveals that it does not limit which parties may appeal decisions of a municipal appeals board. And although the City established its internal appeals process, including the City Records Appeals Board, the City and the Appeals Board are not the same entity. See, e.g. , Salt Lake City Corp. v. Haik , 2014 UT App 193, ¶ 19, 334 P.3d 490. Accordingly, we conclude that the City had the right to appeal the decision of the City Records Appeals Board, as would any other aggrieved party.

¶ 34 Second, the City also has standing in this case because, although it challenged the decisions of both the Appeals Board and the State Records Committee, this matter arrived in the district court by way of the Records Committee. And the City's petition for review of a Records Committee decision is clearly permissible under the plain language of GRAMA. See UTAH CODE § 63G-2-404. The GRAMA statute allows "[a]ny party to a proceeding before the records committee [to] petition for judicial review by the district court of the records committee's order." Id. § 63G-2-404(1)(a) (emphasis added). This broad language plainly encompasses the City and grants standing to the City here.

¶ 35 Accordingly, we conclude that the district court correctly determined the City had standing in this case.

B. Strict Compliance with GRAMA

¶ 36 JRRN claims that it should have been granted summary judgment because the City did not strictly comply with GRAMA when it "failed to provide JRRN with the right to appeal to its chief administrative officer" and "its appeal board did not consist of [any] members of its governing body." However, JRRN acknowledges that it did not make these arguments before the City Records Appeals Board or the State Records Committee. Oral Argument at 1:05:30, Salt Lake City v. Jordan River Restoration Network , No. 20160098 (2018), https://www.utcourts.gov/opinions/streams/index.php?court=sup. When the City petitioned for judicial review, JRRN argued for the first time in the district court that it was entitled to relief because the City did not strictly comply with GRAMA. Thus, JRRN failed to preserve this argument.

¶ 37 "Utah law requires parties to preserve arguments for appellate review by raising them first in the forum below-be it a trial court or an administrative tribunal." Fuller v. Springville City , 2015 UT App 177, ¶ 14, 355 P.3d 1063 (citation omitted); see also ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶ 11, 211 P.3d 382. "The preservation doctrine provides that 'issues not raised in proceedings before administrative agencies are not subject to judicial review except in exceptional circumstances.' " Frito-Lay v. Utah Labor Comm'n , 2009 UT 71, ¶ 32, 222 P.3d 55 (quoting Sullivan v. Utah Bd. of Oil, Gas & Mining , 2008 UT 44, ¶ 14, 189 P.3d 63 ). The preservation doctrine applies when the issue raised on appeal could have been resolved in the administrative setting. ABCO Enters., 2009 UT 36, ¶¶ 8-11, 211 P.3d 382. Thus, litigants may exhaust their administrative remedies and properly bring an appeal to a state district court but still be limited by the preservation doctrine regarding which issues they can raise before the court. Frito-Lay , 2009 UT 71, ¶ 32, 222 P.3d 55.

¶ 38 JRRN did not raise this issue until this case was before the district court, so the City had no opportunity to respond to or resolve its alleged non-compliance with GRAMA in the administrative setting. Accordingly, this issue was not preserved. Since the district court was acting as a reviewing court of the administrative proceedings below, this claim was not properly before it. However, the district court addressed this argument on the merits. But because the court ruled against JRRN on this claim, the error was harmless.

C. JRRN's Counterclaims

¶ 39 JRRN makes a cursory argument that the district court erred in granting summary judgment against it on its counterclaims. JRRN couches this argument in its "right to file a GRAMA counterclaim," which has been "expressly recognized by the Court of Appeals as the sole means for a requester to obtain injunctive relief and recover attorney fees and costs when the governmental agency ... is the party petitioning for judicial review."

¶ 40 The district court did not deny JRRN its right to bring its counterclaims. The district court assessed JRRN's counterclaims on the merits and ruled against JRRN in a detailed memorandum decision. The district court did not err because it did not, as JRRN suggests, bar JRRN from maintaining its counterclaims.

II. THE TRIAL DE NOVO

¶ 41 JRRN challenges several of the procedures used by the district court at the trial de novo in this case. JRRN asserts that the court should have: (1) conducted a non-deferential review of the Records Committee's decision instead of reviewing the decision of the City for an abuse of discretion, (2) assigned the burden of proof to the City rather than JRRN, and (3) confined its review to the administrative record below rather than accepting new evidence. Finally, JRRN argues that the court's legal analysis was insufficient.

A. Standard of Review

¶ 42 JRRN argues that the court should have conducted a non-deferential review of the State Records Committee's decision rather than reviewing the City's decision for an abuse of discretion. JRRN is not wrong, but it mischaracterizes the standard of review the district court employed.

¶ 43 When a petition for judicial review under GRAMA arrives in the district court after a proceeding in the Records Committee, the text of GRAMA does direct the court to review the Records Committee's decision. Section 403, which outlines the procedure the Records Committee follows when it receives a GRAMA appeal, directs the Committee to include in its order "a statement that any party to the proceeding before the records committee may appeal the records committee's decision to [the] district court." UTAH CODE § 63G-2-403(12)(c) (2010) (emphasis added).

¶ 44 And section 404, which addresses judicial review in the district court, explains that "[a]ny party to a proceeding before the records committee may petition for judicial review by the district court of the records committee's order ." Id. § 63G-2-404(1)(a) (emphasis added). This section also instructs a petitioner to include "a copy of the records committee order from which the appeal is taken" with its complaint. Id. § 63G-2-404(3)(b). This provision would not make sense if the Records Committee's order was irrelevant.

¶ 45 Thus, the plain language of the statute makes clear that when a petition for judicial review makes its way to the district court by way of the Records Committee, it is the Records Committee's decision that the district court should review.

¶ 46 However, the court does not give the Records Committee's decision any deference. GRAMA instructs the district court to "make its decision de novo. " Id. § 63G-2-404(7)(a). De novo means "anew." De Novo , BLACK'S LAW DICTIONARY (10th ed. 2014). In practice, this means the district court must make its own, independent determination of whether the governmental entity's fee waiver decision was reasonable-with no deference to the Committee's decision. To do this, the court must make its own assessment of the City's denial. And that is precisely what the district court did here.

¶ 47 As JRRN points out, the district court did expressly rule that it was reviewing the decision of the City, not the State Records Committee. And that was incorrect. But in this context, that is a distinction without a difference. The district court conducted the review contemplated by GRAMA.

¶ 48 JRRN claims that the court incorrectly assessed the City's decision under an abuse of discretion standard. But this misunderstands the court's review.

¶ 49 Rather, the court analyzed the City's denial in light of the fee waiver provisions of GRAMA, which give the City great discretion in choosing whether to waive a fee. The provisions provide:

(1) A governmental entity may charge a reasonable fee to cover the governmental entity's actual cost of providing a record.
...
(4) A governmental entity may fulfill a record request without charge and is encouraged to do so when it determines that:
(a) releasing the record primarily benefits the public rather than a person....

UTAH CODE § 63G-2-203 (emphasis added).

¶ 50 Looking to the statute, the court assessed the City's decision as follows:

If the City establishes that it considered the appropriate statutory factors ... and did not rely on any impermissible policies or factors ... then under the statute, the City's decision is entitled to deference ... [and the] Court's role is limited to a review of whether the result was reasonable. If the Court determines the City's decision was an abuse of discretion, then it is not entitled to deference and the Court will determine de novo based on the evidence presented at trial whether the City's denial of the fee waiver was unreasonable pursuant to Utah Code § 63G-2-203(6)(a).

¶ 51 Although the court used the term "abuse of discretion," we note that this was not because the court had adopted that particular standard of review. Rather, the court was merely applying the statute governing the City's decision.

¶ 52 But the court's review was not entirely correct. We clarify that upon judicial review of a government entity's fee waiver denial, the ultimate question is not whether the entity abused its discretion, but whether its decision was reasonable. The court should make this decision de novo -meaning without deference to the Records Committee's decision, the Appeals Board's decision, or the governmental agency's decision.

¶ 53 When making this determination, a court should do as the court did here: view the entity's decision in the context of the governing statute. Here, that meant assessing whether the entity properly considered those circumstances under which GRAMA encourages a fee waiver: when releasing the record primarily benefits the public, the requester is the subject of the record, or the requester's legal rights are directly implicated by the information in the record and the requester is impecunious. See UTAH CODE § 63G-2-203(4). But this is not necessarily determinative.

¶ 54 The court should examine this and any other evidence it finds relevant to the reasonableness of the entity's denial. Here, the court properly considered the City's failure to contemplate whether releasing the record benefitted the public, along with the time and effort required of the City to fulfill the request, the extreme breadth of the request, and the fact that some of the material requested duplicated records the City had already produced to JRRN.

¶ 55 Because the court found that the City had not considered whether releasing the record would primarily benefit the public, the court gave no deference to the City's decision. So the court ultimately conducted a de novo review to determine if the City's decision was reasonable in light of the GRAMA provisions regarding fee waivers. Accordingly, it conducted the review contemplated by GRAMA and any error it made as to the standard of review was harmless.

B. Burden of Proof

¶ 56 The court's ruling that it was reviewing the City's decision rather than the order of the Records Committee did lead to an error regarding the assignment of the burden of proof. But that error is also harmless because the court concluded the City had proven its case by a preponderance of the evidence.

¶ 57 The court ruled that the burden of proof was on the respondent, as "the party seeking relief in the form of a Court-ordered fee waiver from the City." However, it was JRRN that prevailed before the State Records Committee, and it was the City petitioning for a review of that decision. As the petitioner seeking a reversal of the decision below, the City should have borne the burden of proof.

¶ 58 The governing statute, Utah Code section 63G-2-404, does not expressly state which party bears the burden of proof in a judicial review proceeding. The nearest guidance section 404 provides is that the petition for judicial review shall be a complaint governed by the Utah Rules of Civil Procedure, and shall contain "a request for relief specifying the type and extent of relief requested," and "a statement of the reasons why the petitioner is entitled to relief." Id. § 63G-2-404(3).

¶ 59 In general, the law has long assigned the burden of proof to the petitioner, plaintiff, or appellant. See Cox v. Laycock , 2015 UT 20, ¶¶ 55, 58, 345 P.3d 689 (Lee, J., concurring); see also State v. Litherland , 2000 UT 76, ¶ 17, 12 P.3d 92 ("Appellants bear the burden of proof with respect to their appeals...."); Foote v. Clark , 962 P.2d 52, 55 (Utah 1998) (holding that parties seeking a remedy have the burden of producing evidence to buttress the requested award); O'Rourke v. Utah State Tax Comm'n , 830 P.2d 230, 232 (Utah 1992) (noting that on review of formal agency actions, "[t]he burden of proof lies with the petitioning party to establish a basis for the petition to be granted").

¶ 60 But this rule is not absolute. For instance, when a defendant appeals a criminal conviction from justice court to district court under Utah Code section 78A-7-118, the district court conducts a trial de novo , where "[t]he state bears the same burden of establishing a defendant's guilt ... as it would had the case originated there." Bernat v. Allphin , 2005 UT 1, ¶ 31, 106 P.3d 707. And a respondent in a civil case generally bears the burden of proof when asserting affirmative defenses. See, e.g. , Seale v. Gowans, 923 P.2d 1361, 1363 (Utah 1996) (stating that defendants have the burden of proof with respect to affirmative defenses); Messick v. PHD Trucking Serv., Inc. , 615 P.2d 1276, 1277 (Utah 1980) ("Accord and satisfaction is an affirmative defense and requires the party alleging it to meet the burden of proof as to every necessary element.").

¶ 61 Here, the GRAMA statute does not contain any language indicating that the burden of proof should be assigned to the non-moving party. And because the statute states that it is the decision of the State Records Committee under review, it makes sense that the party challenging the Records Committee's decision should bear the burden of proof. While the Committee's decision is not entitled to deference, it still has significance. If the district court denies the petition, then the Committee's decision remains. In the absence of any statutory directive to the contrary, the general rule stands: the party seeking the remedy of overturning the Committee's decision must bear the burden of proof.

¶ 62 The City initiated this case in 2010 when it filed its Complaint in the district court. Thus, the City, as the petitioner and party seeking a reversal of the administrative order on review, should have borne the burden of proof.

¶ 63 However, this error did not affect the proceedings in the district court-other than to allow JRRN to present its evidence first and offer a rebuttal case. This is because, while the court did not formally assign the burden of proof to the City, in practice the court analyzed the case as if the City did have that burden. Before trial the district court ruled that it was the City's burden to "establish[ ] that it considered the appropriate statutory factors and factors consistent with the polices of GRAMA and did not rely on any impermissible polices or factors in making its decision." And after the bench trial, the court ultimately concluded that the City had established by a "preponderance of the evidence ... that the decision to deny the requested fee waiver ... was reasonable...." Salt Lake City Corp. v. Jordan River Restoration Network , No. 100910873, Findings of Fact and Conclusions of Law, 7 (Dec. 8, 2015).

¶ 64 So, while the court did not assign the burden of proof to the City, the court analyzed the evidence as if the City did bear this burden. The court ultimately concluded that the City had proven its case by a preponderance of the evidence. Accordingly, any error on this point was harmless.

C. The Scope of the Review

¶ 65 JRRN's final procedural challenge relates to the scope of the district court's review. The district court conducted a complete trial de novo , in which it considered any admissible evidence offered by the parties. JRRN asserts the court should have limited its review to the record before the State Records Committee.

¶ 66 The text of the relevant provision does not provide a clear answer. The statute directs the district court to "make its decision de novo , but allow introduction of evidence presented to the records committee." UTAH CODE § 63G-2-404(7)(a) (emphasis added). JRRN argues that this language permits the district court to review only the evidence presented to the Records Committee. We disagree.

¶ 67 While the statute directs the district court to include evidence presented to the Records Committee in its review, it does not contain language requiring the exclusion of other evidence. JRRN's interpretation of the statutory text assumes a word that is absent: the provision does not say that the court should allow introduction of "only" the evidence presented to the Records Committee.

¶ 68 JRRN also points out that the relevant provision uses the term "de novo " without conjoining the word "trial." See id. In contrast, other statutes explicitly reference a "trial de novo ." For example, the Administrative Procedures Act, which does not apply to GRAMA, states that "district courts have jurisdiction to review by trial de novo all final agency actions resulting from informal adjudicative proceedings." Id. § 63G-4-402 (emphasis added).

¶ 69 This distinction is worth consideration. However, it is not dispositive. We have recognized that, in the context of judicial review of administrative action, even the complete phrase "trial de novo " can mean either: "(1) A complete retrial upon new evidence; [or] (2) a trial upon the record made before the lower tribunal." Pledger v. Cox , 626 P.2d 415, 416 (Utah 1981) (citations omitted); Denver & R. G. W. R. Co. v. Pub. Serv. Comm'n , 98 Utah 431, 100 P.2d 552, 554-55 (1940).

¶ 70 Ultimately, the meaning of "de novo " in each statute is informed by the wording and context of the statute in which it appears and by "the nature of the administrative body, decision and procedure being reviewed." Pledger , 626 P.2d at 416-17. Viewing this provision in context, it is clear that the district court was correct in considering any admissible evidence at the bench trial in this case.

¶ 71 In proceedings before the Records Committee, discovery is prohibited. UTAH CODE § 63G-2-403(10)(a). But proceedings in the district court are governed by the Utah Rules of Civil Procedure. So, with some exceptions, petitions for judicial review in the district court may proceed like any other civil case.

¶ 72 This means that discovery is permitted. See UTAH R. CIV. P. 26. The parties can engage in motion practice. See id. 7, 56. And if the case is not resolved earlier, the court will hold a bench trial where it will decide not only questions of law, but will "determine all questions of fact." UTAH CODE § 63G-2-404(7)(b).

¶ 73 GRAMA directs the court to "decide the issue at the earliest practical opportunity." Id. § 63G-2-404(7)(c). And nothing prevents the parties from forgoing discovery and stipulating to an expedited hearing in which the court reviews only the evidence before the Records Committee.

¶ 74 But cases involving judicial review of an administrative GRAMA decision are governed by the Utah Rules of Civil Procedure, and the parties may make use of those procedures. Here, the parties engaged in discovery-including JRRN disclosing an expert witness-and the case proceeded to a bench trial. The court was correct to proceed as it would in any other civil case, including considering any admissible evidence presented by the parties.

D. Application of the Law

¶ 75 Finally, JRRN alleges that the district court should have weighed "the public's constitutional right of access" against "the government's burden in fulfilling the request" in its legal analysis. However, JRRN relies on law specific to requests for records, not fee waiver requests.

¶ 76 JRRN supports its argument with two cases. In the first, Deseret News Publishing Co. v. Salt Lake County , 2008 UT 26, 182 P.3d 372, we analyzed Salt Lake County's denial of a records request, not a fee waiver request. See id. ¶ 1. JRRN quotes passages from Deseret News in which we discussed the foundational policies of the GRAMA statute. See id. ¶¶ 13-14. We noted there that GRAMA

strikes a balance between "the right of access to information concerning the conduct of the public's business and the right of individual privacy concerning personal information acquired by governmental entities." Id. ¶ 13 ; see also UTAH CODE § 63G-2-102(1). In Deseret News , we did not interpret GRAMA to require district courts to enter into a balancing analysis in the context of fee waiver requests.

¶ 77 In the second case, Graham v. Davis County Solid Waste Management & Energy Recovery Special Service District , 1999 UT App 136, 979 P.2d 363, the court of appeals reviewed, among other things, a district court's upholding of a Davis County fee waiver request denial. See id. ¶¶ 1-7. In so doing, the court discussed GRAMA's balancing of "the public's right to access government documents against the government's interest in operating free from unreasonable and burdensome records requests." Id. ¶ 22. The court noted that "the Legislature ... also restricted access to public records by allowing agencies to impose fees for the production of records in limited instances." Id. ¶ 23.

¶ 78 Although allowing governmental entities to impose fees is one way that GRAMA balances the government's interests and the public's right of access, GRAMA does not require for fee waivers the same balancing analysis that applies in the context of records requests.

¶ 79 In assessing a request for records that are private or protected, GRAMA instructs government entities to weigh the interests favoring access against the interests favoring restriction. See UTAH CODE § 63G-2-201(5)(b)(ii). If the government entity denies the records request, and the requester petitions for judicial review, section 63G-2-404 directs district courts to "weigh[ ] ... the various interests and public policies pertinent to the classification and disclosure or nondisclosure , [and] order the disclosure of information properly classified as private, controlled, or protected if the interest favoring access outweighs the interest favoring restriction of access." Id. § 63G-2-404(8)(a) (emphasis added).

¶ 80 But the code does not require the same substantive analysis, either from the government entity or the reviewing court, in determining whether to grant or deny a fee waiver request. As we have discussed, GRAMA has provisions specific to charging and waiving fees. And while an appeal of a fee waiver denial follows the same procedure as an appeal of a record request denial, that does not mean the same substantive law applies. As JRRN states in its brief, "[t]he reasonableness of the [entity's] order must be determined in light of the statutory setting in which it operates." (Quoting Utah Dep't of Admin. Servs. v. Pub. Serv. Comm'n , 658 P.2d 601, 611 (Utah 1983) ).

¶ 81 Here, the district court properly assessed the reasonableness of the City's decision in light of the relevant fee waiver statute. The court recognized that section 63G-2-203"permitted [the City] to charge fees for retrieving and copying the requested documents," but encouraged it to fulfill record requests without charge when the request primarily benefits the public.

¶ 82 The court found that the City incorrectly had not considered this provision, and factored that into its ultimate ruling in this case. The court also considered any other evidence relevant to the question of reasonableness. It found that JRRN's request:

required substantial efforts to "compile" documents as defined in Graham . The request's breadth would require extracting many documents from disparate larger sources. The effort within Public Works required many hours and interrogating many employees as to the files they possessed. It would not have been feasible to allow JRRN the access needed to gather the documents themselves.

The court also found that "the breadth of the request ... was unreasonably large," that "full compliance with the request would have required many more hours of employee time compiling and copying," and that the "request [was] not tailored to [this] issue, but rather appear[ed] calculated to require production of every conceivable document concerning the project."

¶ 83 Despite finding that JRRN's "purpose was to primarily benefit the public," the court concluded that the City's "decision to deny the requested fee waiver ... was reasonable given the voluminous nature of the request and the effort necessary to compile the requested documents."

¶ 84 The district court did not also need to weigh competing interests pertinent to disclosure and nondisclosure. While fees do affect the public's access to documents, the legislature has identified different considerations specific to the fee waiver context. The district court correctly identified and applied them here.

CONCLUSION

¶ 85 The district court correctly concluded that the City had standing to petition for judicial review. And while the court should have conducted a de novo review of the decision of the State Records Committee, its error was harmless because that decision is not entitled to deference. It was necessary for the court to make its own assessment of the governmental entity's decision, which it did.

¶ 86 At trial, the court correctly considered any admissible evidence and applied the specific provisions of GRAMA governing fee waivers. While the court's ruling on the burden of proof was incorrect, that error was harmless because the court ultimately found that the City proved the reasonableness of its decision by a preponderance of the evidence.

¶ 87 Accordingly, we affirm.

      Accordingly, we reference and analyze the 2010 version of the Utah GRAMA statute throughout this opinion.

      The City cited Salt Lake City Code section 2.64.130(D) (2010), which provided that a "person who believes that there has been an unreasonable denial of a fee waiver ... may appeal the denial in the same manner as a person appeals when inspection of a public record is denied." This mirrors the language in GRAMA section 63G-2-203(6)(a).

      The City filed its petition pursuant to Utah Code sections 63G-2-404(1)(a) and 63G-2-701(6) and in accordance with 63G-2-404(3).

      JRRN appealed to the Utah Court of Appeals. The City then filed a motion to transfer the appeal to this court, asserting that "the Utah Supreme Court's most recent GRAMA decision clarified that it has jurisdiction to review the district court's decision arising from a petition for judicial review of the Utah State Records Committee's determination." Order of the Utah Court of Appeals, Case No. 20160098-CA (Sept. 13, 2017) (citing Schroeder v. Utah Attorney Gen.'s Office , 2015 UT 77, ¶ 15, 358 P.3d 1075 ). JRRN did not oppose the City's motion and the Court of Appeals granted it.

      This is correct unless, as is the case here, the political subdivision has provided for an additional level of administrative review to the records committee, to which the requester concurs. Utah Code § 63G-2-701(5).

      The nomenclature for evidentiary burdens can be confusing, as various courts and commentators have used prevalent terms in different ways. "[B]urden of proof" is a catchall term that encompasses both the burden of persuasion and the burden of production and generally refers to "[a] party's duty to prove a disputed assertion or charge." Searle v. Milburn Irrigation Co. , 2006 UT 16, ¶ 49 n.2, 133 P.3d 382 (second alteration in original) (citation omitted); see also Burden of Proof , Black's Law Dictionary (10th ed. 2014) ("The burden of proof includes both the burden of persuasion and the burden of production .").

      Section 63G-2-104 of GRAMA states that "Title 63G, Chapter 4, Administrative Procedures Act, does not apply to this chapter except as provided in Section 63G-2-603"-which deals with requests to amend a record on appeal. See id. § 63G-2-104.

      For example, GRAMA does not permit a jury trial. Id. § 63G-2-404(7)(b). And it contains some additional procedural requirements that are not found in the Utah Rules of Civil Procedure, like deeming the State Records Committee a necessary party and specifying particular information that must be contained in a petition. Id. § 63G-2-404(1)(c), (3).

      We recognize that the interaction between our preservation requirements and the Utah Rules of Civil Procedure may create a hybrid proceeding in this type of case. Our preservation rules require a party to raise a claim or issue in the administrative proceeding to preserve it in district court. However, in a GRAMA case parties may conduct discovery for the first time in the district court, and evidence gathered in discovery may be admissible in the district court case even though it was not presented in the underlying administrative proceeding. But such evidence will be admissible only if it is relevant to a preserved issue.

      JRRN cites Graham for the proposition that, in addition to weighing the right of access against the burden on the government, a governmental entity must prove: "(1) it was required to compile records in a form other than that maintained by the City; [and] (2) it was impossible to allow JRRN to obtain the records on its own." But in Graham , the court of appeals focused on the amount an agency should be allowed to charge in compilation fees. Graham , 1999 UT App 136, ¶¶ 19-28, 979 P.2d 363. Here, our focus is different. We address when an agency may charge a fee and when it should waive its cost entirely.


source: Caselaw Access Project

license: Public Domain

text:
    HEALTHBANC INTERNATIONAL, LLC and Bernard Feldman, Plaintiffs and Counterclaim Defendants, v. SYNERGY WORLDWIDE, INC. and Nature's Sunshine Products, Inc., Defendants and Counterclaim Plaintiffs.
    No. 20170591
    Supreme Court of Utah.
    Filed December 21, 2018
    Mitchell A. Stephens, Salt Lake City, Annabella Q. Bonfa, Scott W. Wellman, Laguna Hills, for plaintiffs and counterclaim defendants
    Chris Martinez, Kimberly Neville, Salt Lake City, for defendants and counterclaim plaintiffs
    Associate Chief Justice Lee authored the opinion of the Court, in which Justice Himonas, Justice Pearce, Justice Petersen, and Judge Hagen joined.
    Having recused himself, Chief Justice Matthew B. Durrant does not participate herein; Court of Appeals Judge Diana Hagen sat.
   Associate Chief Justice Lee, opinion of the Court:

¶ 1 This case is before us on certification from the United States District Court for the District of Utah. That court asked us to decide whether the "economic loss rule" in Utah law extends to the tort of fraudulent inducement. This question arises in a case in which the alleged fraudulent inducement overlaps entirely with claims for breach of contract. We therefore reframe the question certified by the federal court. We hold that the economic loss rule applies in the circumstances of this case-there is no fraud exception that applies where the alleged fraudulent inducement arises out of the very grounds alleged as a basis for a breach of contract action. We stop short, however, of resolving the broad question of whether there may ever be a fraudulent inducement exception to the economic loss rule in Utah. We defer that question to a future case in which the facts may warrant it.

I

¶ 2 The question presented stems from litigation arising under a royalty agreement. HealthBanc International, LLC ("HealthBanc") sold a "Greens Formula" to Synergy Worldwide Inc. ("Synergy") for use in Synergy's multilevel marketing business. In the royalty agreement HealthBanc assigned its rights in the Greens Formula to Synergy and Synergy agreed to pay HealthBanc a royalty. Synergy specifically requested that the royalty agreement include representations and warranties that HealthBanc owned the Greens Formula and associated intellectual property rights. HealthBanc then made the following representation and warranty:

HealthBanc hereby represents and warrants that it is the sole and exclusive owner of the entire rights, title and interest, including without limitation all patent, trademark, copyright and other intellectual property rights, in and to the Greens Formula ... free and clear of all liens, claims or encumbrances.

¶ 3 The following year HealthBanc sued Synergy for breach of contract. It alleged that Synergy had not paid the required royalty on certain sales. Specifically, HealthBanc asserts that Synergy paid the royalty only on sales in Australia and the United States, and failed to pay the royalty on product sales in other countries.

¶ 4 Synergy filed a counterclaim asserting that HealthBanc did not own the Greens Formula. On that premise Synergy alleges counterclaims sounding in breach of contract and tort. The breach of contract claim alleges that "HealthBanc has breached [the contract], in which HealthBanc 'represents and warrants that it is the sole and exclusive owner' " of the Greens Formula and all associated intellectual property rights. Synergy's tort claim alleges fraudulent inducement on the ground that HealthBanc misrepresented that it "had the exclusive right to use, assign or sell the Specified Greens Formula and its associated intellectual property rights."

¶ 5 HealthBanc filed a Motion to Dismiss and a Motion for Partial Summary Judgment as to Synergy's fraud claim. Synergy responded and the court scheduled oral argument. HealthBanc's motion did not assert that the economic loss rule barred Synergy's fraud claim. But the district court issued a minute entry instructing the parties to "be prepared to address whether this court should certify to the Utah Supreme Court the question of whether Utah['s] economic loss rule applies to a fraudulent inducement claim." HealthBanc argued against certification, but the district court disagreed and entered an Order of Certification. We then granted certification.

II

¶ 6 "[T]raditional standards of review do not apply" to a certified case. Egbert v. Nissan N. Am. , 2007 UT 64, ¶ 7, 167 P.3d 1058 (quoting Robert J. DeBry & Assocs., P.C. v. Qwest Dex, Inc. , 2006 UT 41, ¶ 11, 144 P.3d 1079 ). This is because we are not asked "to affirm or reverse a lower court's decision" in such a case. Id . And we are not tasked to decide the underlying federal case. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 10, 289 P.3d 502. Instead, we aim to "resolve disputed questions of state law in a context and manner useful to the resolution of a pending federal case." Id. ¶ 8.

¶ 7 In so doing we are not required to answer a certified question in the precise form in which it is presented. See Egbert v. Nissan Motor Co. , 2010 UT 8 ¶ 13 n.2, 228 P.3d 737 (noting our authority to "reformulate" a certified question). Nor are we foreclosed from considering the facts of the underlying dispute. As we explained in Horne : "If facts are necessary to frame a certified question, surely they may also be relevant to our answer. ... We routinely refer to surrounding facts and circumstances not just to set the stage for our resolution of questions certified by federal courts, but also to illustrate the application of our answer in the context of the case." Horne , 2012 UT 66, ¶ 9, 289 P.3d 502.

¶ 8 Here we choose to answer a narrower question than the one certified by the district court. In the context of this case we conclude that we need only decide whether the Utah economic loss rule applies to a fraudulent inducement claim that is duplicative of a breach of contract claim.

¶ 9 We frame the question in this way in light of the nature of Synergy's counterclaims. Synergy's breach of contract claim alleges that "HealthBanc has breached the [parties' contract], in which HealthBanc 'represents and warrants that it is the sole and exclusive owner of the" Greens Formula and all associated intellectual property rights. And Synergy's fraudulent inducement claim appears to arise out of the same central allegation-the assertion that HealthBanc misrepresented it "had the exclusive right to use, assign, or sell the Specified Greens Formula and its associated intellectual property rights." For this reason this is not a case in which we need to decide whether there could ever be a fraudulent inducement exception to the economic loss rule. We need only decide whether the economic loss rule applies to a fraudulent inducement claim that overlaps completely with a contract claim-in the sense that the alleged fraudulent inducement is also a breach of a warranty in the contract.

¶ 10 And we hold it does. In cases like this one, where the party's tort claim is a mere duplication of its breach of contract claim, there is no exception to the economic loss rule. The tort claim is barred. We do not foreclose the possibility that in a future case a limited exception for fraud in the inducement may be warranted. But we decline to create such an exception on these facts.

¶ 11 We first identify the central grounds for our decision. Then we respond to two of Synergy's central arguments.

A

¶ 12 The economic loss rule has two complementary yet distinct applications. "First, it bars recovery of economic losses in negligence actions unless the plaintiff can show physical damage to other property or bodily injury." Sunridge Dev. Corp. v. RB&G Eng'g., Inc. , 2010 UT 6, ¶ 28, 230 P.3d 1000. This branch of the economic loss rule applies when there is no contract between the relevant parties. Second, the economic loss rule applies when a contract exists between the parties. This branch declares that "when a conflict arises between parties to a contract regarding the subject matter of that contract, the contractual relationship controls, and parties are not permitted to assert actions in tort." Reighard v. Yates , 2012 UT 45, ¶ 20, 285 P.3d 1168 (citation omitted) (internal quotation marks omitted). Synergy seeks to establish a fraudulent inducement exception to this latter application of the economic loss rule.

¶ 13 We have acknowledged some possible exceptions to the second branch of the economic loss rule. We have even said that "fraud may be an exception to the economic loss rule ...." Grynberg v. Questar Pipeline Co. , 2003 UT 8, ¶ 48, 70 P.3d 1. But we have not yet established a fraud exception. And we decline to do so here.

¶ 14 A blanket exception for fraud in the inducement would undermine the central premises of the economic loss rule. Some of those premises were highlighted in our opinion in Reighard . There the plaintiffs asserted claims in contract and tort. Reighard , 2012 UT 45, ¶¶ 3, 6, 285 P.3d 1168. And we held that the economic loss rule barred plaintiff's tort-based claims because "[a]ny tort duties" owed to the plaintiffs "overlap[ped] with [defendant's] contract duties to the [plaintiffs]." Id. ¶ 25.

¶ 15 The Reighard inquiry asks whether the contract covers the subject of the tort claims-or in other words whether the basis for the plaintiff's tort claims is distinct and separable from the basis for the contract claims. "When a duty exists that does not overlap with those contemplated in contract, the economic loss rule does not bar a tort claim because the claim is based on a recognized independent duty of care ...." Id. ¶ 21 (citation omitted) (internal quotation marks omitted). When the tort claim and the contract claim overlap, on the other hand-"when [the] conflict [that] arises between parties to a contract [is] regarding the subject matter of that contract"-"the contractual relationship controls, and parties are not permitted to assert actions in tort." Id. ¶ 20 (citation omitted).

¶ 16 Reighard did not consider the precise tort at issue in this case-the tort of fraudulent inducement. But the rationale holds here. To find a blanket exception to the economic loss rule for all fraudulent inducement claims would open the door to tort claims that directly overlap breach of contract claims. This blurring of the line between tort and contract law is precisely what the economic loss rule is designed to prevent. See Sunridge Dev. Corp. , 2010 UT 6, ¶ 28, 230 P.3d 1000 ("The economic loss rule ... marks the fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care." (citation omitted) (internal quotation marks omitted) ). And these considerations sustain our extension of the economic loss rule to a case in which the alleged fraudulent inducement overlaps completely with a claim for breach of contract.

B

¶ 17 Synergy advances two primary grounds for a contrary conclusion. First, because inducement occurs prior to the execution of a contract, Synergy contends that this kind of tort is necessarily independent of the contract. And second, Synergy asserts tort damages are needed to punish wrongdoers and make wronged parties whole. We find neither argument persuasive.

¶ 18 Synergy invites us to follow the lead of the Colorado Supreme Court in endorsing its first point. Citing Van Rees v. Unleaded Software, Inc. , Synergy asserts that "there is an important distinction between failure to perform the contract itself, and promises that induce a party to enter into a contract in the first place." 373 P.3d 603, 607 (Colo. 2016).

¶ 19 We disagree. When the subject matter of the inducing promises are later negotiated for and included in the contract, the distinction advanced by Synergy is illusory. As explained by the Third Circuit:

[I]f "all claims for fraud in the inducement are extraneous or independent of the contract because they occur 'prior to the formation of the contract itself,' ... every breach of warranty claim would be turned into a tort by a simple affidavit stating, in effect, that the warranty was spoken before it was written." ... "[W]ritten disclaimers of warranties could be voided after the fact by the same affidavit, so long as the oral representations preceded the contract," thus causing chaos and uncertainty in commercial transactions.

Werwinski v. Ford Motor Co. , 286 F.3d 661, 678 (3d. Cir. 2002) (second alteration in original) (quoting Rich Prod. Corp. v. Kemutec, Inc. , 66 F.Supp.2d 937, 977-80 (E.D. Wis. 1999) ). Contracts are negotiated first and drafted second. To claim that a promise is independent of a contract simply because it was spoken prior to the formation of a contract would open the door to tort liability for all pre-contractual negotiations that were eventually enshrined in a contract. This exception would swallow the rule. And we decline to endorse such an exception.

¶ 20 On the second point, Synergy asserts that without a fraudulent inducement exception the law will shield intentional tortfeasors from liability. Again we disagree. Intentional bad acts are insufficient by themselves to justify an exception to the economic loss rule. If the "bad acts" (even intentional ones) are covered by a contract, they remain in the realm of contract law. And contract law remains sufficient to "punish" the breaching party.

¶ 21 Contract law seems sufficient to make wronged parties whole. When the contract terms contain the grounds for the tort claim, we see no reason to conclude that recovery under contract law is insufficient-"when a party is merely suing to recover the benefit of its contractual bargain, there is no inherent unfairness in limiting that party to a breach-of-contract claim." Louisburg Bldg. & Dev. Co. v. Albright , 45 Kan.App.2d 618, 252 P.3d 597, 622 (2011). Wronged parties will still have access to traditional contract damages for breach, including expectation damages. And such parties will also have access to exceptional contract remedies-liquidated damages, rescission, etc.-where applicable. The possibility of liquidated damages seems particularly salient. If the parties to a contract with express warranties are concerned about the insufficiency of expectation damages they can bargain for liquidated damages. And where they fail to do so it seems problematic for a court to make a better contract for them than the one they negotiated-by importing tort remedies into the deal.

¶ 22 We reject Synergy's arguments on this basis. And we conclude that the economic loss rule applies where a party's tort claims are entirely duplicative of its contract claims.

III

¶ 23 For the above reasons we hold that the economic loss rule applies to fraudulent inducement claims that overlap completely with a breach of contract claim. In so holding we do not foreclose the possibility of a fraudulent inducement exception in some other circumstance. But we conclude that we need not reach that question here. We can decide whether and to what extent to define any such exception in a case in which the facts may warrant it.

      Synergy manufactures, markets, and sells nutritional, skin, and personal care products. The Greens Formula is a health supplement alleged to provide health benefits.

      "The resolution of the parties' competing claims and arguments will be up to the federal courts, which of course retain jurisdiction to decide this case under the law as they see it." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 10, 289 P.3d 502.

      See also McArthur v. State Farm Mut. Auto Ins. Co. , 2012 UT 22, ¶¶ 33-38, 274 P.3d 981 (applying the answer to a certified question to the facts and circumstances of the underlying dispute); Whitney v. Div. of Juvenile Justice Servs. , 2012 UT 12, ¶¶ 18-19, 274 P.3d 906 (same).


text:
    STATE of Utah and Utah County, Appellees, v. Isaac BURR, Appellant.
    No. 20160176
    Supreme Court of Utah.
    Filed December 21, 2018
    Neil Skousen, Orem, for appellant
    Sean D. Reyes, Att'y Gen., Jeanne B. Inouye, Asst. Solic. Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, for appellee State of Utah
    M. Cort Griffin, Provo, for appellee Utah County
    Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.
    On Direct Appeal
   Associate Chief Justice Lee, opinion of the Court:

¶ 1 After Isaac Burr was released from jail on misdemeanor charges he received an invoice from Utah County seeking reimbursement for the costs of his incarceration. By then Burr's criminal case had been closed. But he sought to file a motion in the closed criminal action. His motion asked the judge in the criminal case to "vacate" the county's invoice. The judge denied the motion and Burr filed this appeal.

¶ 2 We vacate and dismiss on jurisdictional grounds. We hold, for reasons explained below, that the district court lacked jurisdiction to entertain Burr's motion because he failed to identify any basis for reopening the final judgment entered in the criminal case (or for vacating an invoice issued by a nonparty to the criminal proceedings). And we vacate the district court's decision and dismiss the appeal on this basis.

I

¶ 3 The original charges against Burr included one count of dealing in materials harmful to a minor and three counts of stalking. These charges were set forth in an information filed in August of 2014. In October of 2014 Burr pled guilty to two reduced misdemeanor counts-one count of attempted dealing in materials harmful to a minor and one count of stalking. He also waived the statutory time for sentencing and signed onto a joint sentencing recommendation.

¶ 4 The court sentenced Burr to 365 days in jail on each of these two counts but suspended the jail time. It also imposed a fine of $5,000 (which was also suspended), put him on probation for 24 months, and ordered that he be released from custody after 30 days. Neither the State nor Burr sought a restitution order in the criminal proceedings-and no such order was entered.

¶ 5 Burr was released from jail on November 7, 2014. A few days later the Utah County Sheriff's Office sent him an invoice for $3,171.58-the claimed cost of his stay in the Utah County Jail. About a month later Burr filed a motion in the district court under the case number for his criminal case. He styled the motion as one seeking to "vacate" the county's invoice. And he argued, in support of the motion, that the invoice was invalid in the absence of a court order of restitution, that the amount of the invoice should be reduced under factors set forth in the Crime Victims Restitution Act (CVRA), and that the denial of his right to assert those factors violated his due process and other constitutional rights. The district court denied the motion.

¶ 6 In so doing the district court held that jurisdiction "remain[ed]" because Burr "brought the motion pursuant to UTAH CODE § 76-3-201(6)." And it denied Burr's motion on the merits. The court first concluded that the pay-to-stay statute was self-executing-that Utah County was entitled to bill Burr for the costs of his incarceration even absent a restitution order on the matter. It also concluded that the amount of the invoice could not be reduced on the basis of the factors set forth in the CVRA. And it declined to reach Burr's constitutional arguments, concluding that any constitutional challenge was "premature" because no attempt had yet been made to collect on the invoice.

¶ 7 Burr seeks to challenge these determinations on this appeal. He raises both statutory and constitutional objections to the district court's conclusions. First he challenges the district court's determination that the "pay-to-stay" statute, Utah Code section 76-3-201(6)(a), is self-executing. Burr views this provision as requiring a court order-as in a restitution proceeding-to provide a legal basis for the county to impose the pay-to-stay charge. And because no such order was entered here Burr claims that the county had no basis for issuing its invoice.

¶ 8 Alternatively, Burr claims that the terms and conditions of the CVRA-including provisions mandating that the court consider indigency or inability to pay in determining the restitution amount, see Utah Code § 77-38a-302(5)(c), should be deemed to apply here. And because Burr had no occasion to raise this issue prior to sentencing (given that there was no restitution hearing), he claims that he should have that opportunity now.

¶ 9 Burr also asserts a constitutional challenge to the imposition of a pay-to-stay charge in these circumstances. He claims that his due process rights would be infringed if the pay-to-stay statute were viewed as self-executing and also deemed to foreclose a defendant's right to assert his inability to pay as a basis for challenging the county's invoice.

II

¶ 10 Burr has raised some serious questions on this appeal. We have not had occasion to decide whether the pay-to-stay statute is self-executing, or how that provision is supposed to interact with the terms and conditions of the CVRA. And an appellate decision on these questions would surely be valuable. Burr's constitutional arguments are also substantial. Whether or not it would violate Burr's due process rights to hold that his pay-to-stay obligation kicks in without a restitution hearing (and in a manner foreclosing his right to argue the terms and conditions of the CVRA), it would at least cut against the grain of fairness to so conclude. And that prospect seems to heighten the need for resolution of these issues in an appellate proceeding.

¶ 11 Yet need, by itself, is no foundation for appellate jurisdiction. To decide a case on appeal we must do more than conclude that the questions before us are significant. We must identify an established basis in law for the invocation of the judicial power. And such a basis is lacking in a case in which Burr filed a motion in the closed criminal case without identifying any basis for reopening the district court's jurisdiction.

¶ 12 Burr's criminal proceeding was resolved on final judgment when the district court entered Burr's sentence. See State v. Gerrard , 584 P.2d 885, 886 (Utah 1978) ("It is the sentence itself which constitutes a final judgment...."). The entry of that sentence thus closed the criminal case. And when that case was closed the court generally lost any continuing jurisdiction in the matter.

¶ 13 This is the general rule. It is admittedly "subject to a number of exceptions"-as where a party invokes an applicable rule or statute authorizing the district court to reopen the proceedings "even after the sentencing phase." Ralphs v. McClellan , 2014 UT 36, ¶ 27, 337 P.3d 230. Our criminal rules include some such provisions. Rule 22(e) sets forth limited grounds for reopening a criminal case. UTAH R. CRIM. P . 22(e). And civil rules may have some applicability in criminal proceedings. So a post-judgment motion could conceivably be filed in a criminal case under civil rule 60(b). UTAH R. CIV. P . 60(b).

¶ 14 Yet Burr invoked none of these rules. Instead he filed a "motion to vacate" an invoice issued by a third party. And he pointed to the Declaratory Judgment Act, Utah Code § 78B-6-401 et seq ., and the pay-to-stay provision, Utah Code § 76-3-201(6), as purported jurisdictional grounds for his motion.

¶ 15 These provisions provide no footing for jurisdiction in a case like this one. The Declaratory Judgment Act gets Burr nowhere because he filed no declaratory judgment proceeding (but instead tried to reopen a closed criminal case). A declaratory judgment action is a civil proceeding. See UTAH R. CIV. P . 57 (procedure for obtaining declaratory judgment "shall be in accordance" with the rules of civil procedure). And this case is on appeal from a motion filed in a criminal case. So the Declaratory Judgment Act only highlights the jurisdictional defect of Burr's chosen path (while perhaps identifying an alternative avenue for him to raise these issues in a future action).

¶ 16 The pay-to-stay statute is also unhelpful. This provision does not speak to jurisdiction-much less to the power to reopen a criminal case after final judgment is entered. It is addressed only to a criminal defendant's responsibility to pay a county for costs of incarceration, and to factors of relevance to a decision on the question of whether to reduce or eliminate a restitution award for such costs.

¶ 17 We conclude for these reasons that the district court lacked jurisdiction to hear Burr's motion. And because the district court lacked jurisdiction we likewise lack jurisdiction on this appeal. We thus vacate the district court's decision and dismiss this proceeding on appeal.

      This is the "pay-to-stay" statute. It states that "the defendant shall pay restitution to the county for the cost of incarceration and costs of medical care" provided during the defendant's time in a "county correctional facility." Utah Code § 76-3-201(6)(a).

      The State suggests a possible way around this dilemma-in the possibility that Burr could still raise his statutory arguments in the course of any civil enforcement proceedings brought by the county in attempts to collect on the invoice, or in a declaratory judgment proceeding that Burr could file. But the State did not commit itself to this position. It seemed to reserve the right to argue in subsequent civil proceedings that Burr is still foreclosed from raising some or all of the issues presented here. And that adds another dimension to the significant questions identified in the briefing in this case.

      The questions presented here may also highlight the need for legislative intervention. It is safe to say, at a minimum, that the effect of the pay-to-stay statute is less than crystal clear on the face of the statute. And the anticipated means of enforcement of this provision is also a bit uncertain-as is the proper interplay between this provision and the CVRA. We raise these points in case they may prompt the legislature to intervene-to clarify the law and forestall some of the problems raised by Burr that we are unable to reach due to the jurisdictional problems identified herein.

      See, e.g. , Ralphs v. McClellan , 2014 UT 36, ¶ 27, 337 P.3d 230 (stating that the "court's jurisdiction over a criminal matter generally ends after sentencing"); State v. Montoya , 825 P.2d 676, 679 (Utah Ct. App. 1991) (noting that if the sentence "was valid, the trial court would have had no further subject matter jurisdiction").

      Burr initially asserted an additional basis for jurisdiction-the Post-Conviction Remedies Act. But he subsequently (and wisely) abandoned that argument.

      We acknowledge that certain provisions of the CVRA vest the district court with continuing jurisdiction over restitution matters for up to one year after sentencing. See, e.g. , Utah Code § 77-38a-302(5)(d)(i) ("The prosecuting agency shall submit all requests for complete restitution and court-ordered restitution to the court at the time of sentencing if feasible, otherwise within one year after sentencing."). We decline, however, to consider whether these provisions would allow Burr's case to be reopened. Burr asserted that they would at oral argument before the district court. But he never filed the supplemental briefing the district court requested. And he has not raised the argument on appeal. We thus have no occasion to consider the potential application of these provisions.


text:
    STATE of Utah, Petitioner, v. Cooper John Anthony VAN HUIZEN, Respondent.
    No. 20170304
    Supreme Court of Utah.
    Filed January 7, 2019
    Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, for petitioner
    Elizabeth Hunt, Salt Lake City, for respondent
    Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas and Judge Cannell joined.
    On Certiorari to the Utah Court of Appeals
   Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Cooper Van Huizen participated in an armed robbery when he was sixteen years old. The State charged him with three first-degree felonies in juvenile court. After a preliminary hearing, the juvenile judge bound over Van Huizen to the district court to be tried as an adult. There, Van Huizen pled guilty to lesser charges and the district court judge sentenced him to prison.

¶2 While he was serving his prison sentence, Van Huizen discovered that the juvenile judge who presided over his preliminary hearing was married to the Chief Criminal Deputy for the Weber County Attorney's Office-the office that prosecuted him on behalf of the State. Van Huizen moved to reinstate the time to appeal his bindover order, which the district court granted. He argued on appeal that the juvenile judge should have recused herself from his case because of her spouse's position.

¶3 The court of appeals agreed and vacated the juvenile judge's bindover order. In its ruling, the court made two holdings that are the subject of this petition. First, the court did not require Van Huizen to show either that he had preserved his judicial bias claim in the trial court or that an exception to preservation applied. The court reasoned that Van Huizen did not need to preserve his claim because he was not aware of the judge's conflict and was therefore unable to raise it. Second, the court held that Van Huizen was entitled to have the bindover decision vacated, even without showing that the judge's conflict caused him prejudice.

¶4 We must first determine whether it was error to excuse Van Huizen from preserving his claim of judicial bias. Because we conclude it was, we do not reach whether such a claim can be successful without a showing of prejudice.

¶5 We reverse the decision of the court of appeals and reinstate Van Huizen's conviction.

BACKGROUND

¶6 At sixteen years old, Cooper Van Huizen participated in an armed robbery with four other individuals: a 17-year-old friend and three men he did not know who were all 18. Together, they took two revolvers and one airsoft gun from Van Huizen's house and threatened their way into the home of an acquaintance. They stole a small amount of marijuana, a wallet, and a phone.

¶7 Though the victim and a co-defendant variously claim that Van Huizen brandished one of the guns, carried a knife, or was the one who stole the wallet and phone, the record is not conclusive as to any of these facts. Van Huizen denies carrying a gun or knife. Though Van Huizen did not plan the robbery, the record shows that he participated in a text conversation about the robbery before it occurred, participated in the robbery, and obtained his father's guns for the group to use.

A. Bindover from Juvenile Court

¶8 The Weber County Attorney's Office charged Van Huizen in juvenile court with two counts of aggravated robbery and one count of aggravated burglary-crimes that qualified as serious felonies under the Serious Youth Offender Act. See UTAH CODE § 78A-6-702 (2013). Because Van Huizen was sixteen or older and accused of offenses listed in the Act, the statute required the State to charge Van Huizen in a criminal information rather than a petition. Id. § 78A-6-702(1).

¶9 At a preliminary hearing, the juvenile judge found the State had met its burden of proving there was probable cause to believe Van Huizen committed the offenses charged. See id. § 78A-6-702(3)(a). Under the Serious Youth Offender Act, the judge then had to determine whether Van Huizen could establish by clear and convincing evidence that "it would be contrary to the best interest of the minor and the best interests of the public" to bind Van Huizen over to the district court to be tried as an adult. State v. Van Huizen , 2017 UT App 30, ¶ 4, 392 P.3d 933 (citing UTAH CODE § 78A-6-702(3)(d), (e) (internal quotation marks omitted)). The judge ultimately concluded Van Huizen should be bound over to district court. And Van Huizen did not move to quash the bindover order. Id. ¶ 8.

B. District Court Plea, Sentencing, and Post-Conviction Motions

¶10 In the district court, represented by new counsel, Van Huizen pled guilty to two counts of robbery as second degree felonies. Van Huizen , 2017 UT App 30, ¶ 9, 392 P.3d 933. The other charges were dismissed. The district court sentenced Van Huizen to two concurrent sentences of one to fifteen years in prison. Id .

¶11 Van Huizen filed several post-trial motions in the district court, including a motion to reinstate his time to appeal the bindover order and a motion to quash the bindover order. The district court denied most of Van Huizen's motions, but did reinstate his opportunity to appeal the bindover order with the agreement of the State. Van Huizen appealed the district court's decisions on all his post-conviction motions.

C. Court of Appeals Decision

¶12 Before the court of appeals, Van Huizen argued that the juvenile judge should have recused herself under rule 2.11 of the Utah Code of Judicial Conduct because she was married to the Chief Criminal Deputy of the office that prosecuted him. Van Huizen , 2017 UT App 30, ¶ 13, 392 P.3d 933. Van Huizen also raised two additional grounds to vacate the bindover order-ineffective assistance of his juvenile court counsel and plain error of the juvenile court with respect to the application of the Serious Youth Offender Act. Id. ¶ 12. The court of appeals addressed only the appearance of partiality issue. Id.

¶13 The court of appeals held that the juvenile judge's undisclosed marriage to the Chief Criminal Deputy-an attorney in the "chain of command" at the prosecuting county attorney's office-created an appearance of partiality. Id. ¶ 46. It is undisputed that Van Huizen did not raise this issue in the juvenile court, and the juvenile judge did not have an opportunity to address it. Id. ¶ 50 n.15. But the court of appeals concluded that the usual rules of preservation did not apply to this claim because the judge had not disclosed the relationship on the record and therefore Van Huizen did not know about it and could not have raised it. Id. The court also held that Van Huizen did not need to show he was prejudiced by the judge's alleged partiality to prevail on his claim. Id. ¶ 59. The court vacated the bindover order and remanded for a new hearing in juvenile court before a different judge. Id. ¶ 65.

¶14 The State and Van Huizen cross-petitioned for certiorari. We granted the State's petition on two issues: (1) whether the court of appeals erred in concluding that preservation did not apply to Van Huizen's judicial bias claim, and (2) whether it was error to allow Van Huizen to prevail on this claim without a showing of prejudice because the judge did not disclose the relevant facts on the record.

¶15 Although we did not grant Van Huizen's cross-petition for certiorari, we permitted him to raise the issues he included in his petition as alternative grounds for affirmance. We have jurisdiction to hear this case pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶16 "On certiorari, we review the court of appeals' decision for correctness." PC Riverview, LLC v. Xiao-Yan Cao , 2017 UT 52, ¶ 20, 424 P.3d 162 (citation omitted).

ANALYSIS

I. PRESERVATION

¶17 We must decide as a preliminary matter whether Van Huizen's judicial bias claim is exempt from the preservation requirement. We conclude it is not. As with any other claim, Van Huizen must have raised this issue in the trial court or be able to show that an exception to preservation applies.

¶18 Before the court of appeals, the State argued that the court must review Van Huizen's judicial bias claim for plain error because he did not raise it in the juvenile court. The court of appeals rejected the State's contention, reasoning that Van Huizen need not have preserved his claim because he did not have the opportunity to raise the issue in the juvenile court. State v. Van Huizen , 2017 UT App 30, ¶ 50 n.15, 392 P.3d 933. The court concluded that the juvenile judge had the "duty to disclose facts relevant to disqualification in the first instance" and, because she did not, the preservation rule did not apply to Van Huizen's claim of judicial partiality. Id. This was error.

¶19 We agree that judges are obligated to disclose facts relevant to disqualification. But when a litigant alleges undisclosed judicial bias for the first time on appeal, such a claim is not immune from preservation rules. Rather, when a litigant was truly unable to raise a claim-including a claim of judicial bias-at the trial level, the litigant is likely to be able to show that an exception to preservation applies. But a preservation analysis must still take place.

¶20 While the court of appeals' contrary holding is incorrect, it is understandable. The court of appeals relied on our decision in State ex rel. D.B. , in which we stated that a juvenile defendant had "no obligation to preserve a claim of which he received no notice." 2012 UT 65, ¶ 15, 289 P.3d 459. However, we clarified State ex rel. D.B. in State v. Johnson , 2017 UT 76, 416 P.3d 443, which was published after the court of appeals rendered its decision in this case.

¶21 In Johnson , we explained that "[w]hen 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 one of the[ ] exceptions [to preservation] to persuade an appellate court to reach that issue." 2017 UT 76, ¶ 19, 416 P.3d 443. There are three exceptions to preservation: exceptional circumstances, plain error, and ineffective assistance of counsel. Id.

¶22 We indicated in Johnson that State ex rel. D.B. should be understood as an application of the exceptional circumstances exception to preservation. See id. ¶ 35. "We apply [the exceptional circumstances] exception to reach an unpreserved issue where a 'rare procedural anomal[y]' has either prevented an appellant from preserving an issue or excuses a failure to do so." Id . ¶ 29 (second alteration in original) (citation omitted). We explained that in State ex rel. D.B. "we recognized a rare procedural anomaly 'when the alleged error first arises in the lower court's final order or judgment and thus, leaves no opportunity for the party to object.' " Id. ¶ 35 (citation omitted).

¶23 This is essentially what Van Huizen claims here: that a rare procedural anomaly (the judge's failure to disclose her marriage to the Chief Criminal Deputy) prevented him from raising the issue of judicial bias in the juvenile court. However, we note that even under a proper exceptional circumstances analysis, Van Huizen has not sufficiently shown that he was unable to raise an objection to the juvenile judge's participation in his case.

¶24 Van Huizen submitted affidavits from his parents and himself stating that they did not become aware of the identity and position of the juvenile judge's spouse until after Van Huizen's conviction and after the time to appeal the bindover order had expired. But the record suffers from a significant inadequacy-there is no affidavit from Van Huizen's juvenile court counsel that he did not know of the juvenile judge's marriage to the Chief Criminal Deputy. Aside from some circumstantial indications in the record that the juvenile judge and counsel were unacquainted, Van Huizen does not support his assertion that his counsel could not have raised the issue of partiality in the juvenile court.

¶25 The State argued in the court of appeals that the juvenile judge could have made an off-the-record disclosure to Van Huizen's counsel or assumed counsel knew of the relationship. Van Huizen , 2017 UT App 30, ¶ 37 n.11, 392 P.3d 933. The court of appeals rejected this argument and, citing the Vermont Supreme Court, stated that "[i]t is not appropriate to make such an assumption." Id. (citing Velardo v. Ovitt , 2007 VT 69, ¶ 29 n.3, 182 Vt. 180, 933 A.2d 227 ) (alteration omitted).

¶26 We agree that it is the judge's obligation to recuse when it is required, regardless of whether a motion to disqualify is filed. See UTAH CODE JUD. CONDUCT ANN . 2.11, cmt. 2; Reg'l Sales Agency, Inc. v. Reichert , 830 P.2d 252, 257 n.7 (Utah 1992). And it is incumbent upon a judge, not a litigant or lawyer, to make a clear record of any disclosure of a basis for disqualification and the parties' response to the disclosure. UTAH CODE JUD. CONDUCT 2.11(C), (D).

¶27 But this does not fill the gap in our exceptional circumstances analysis here. Van Huizen has the burden to show that he was unable to object to the juvenile judge's participation at the proper time. See Johnson , 2017 UT 76, ¶¶ 54-62, 416 P.3d 443 (noting that the appellant bore the "high burden" of establishing the existence of exceptional circumstances). This includes showing that his counsel was unable to raise the issue. See id. Van Huizen has not done so. Accordingly, the exceptional circumstances exception to preservation does not apply here.

¶28 The plain error exception also does not save Van Huizen's judicial bias claim. The State argued in the court of appeals that the court should conduct a plain error analysis because Van Huizen had not preserved this claim. But the court of appeals concluded that plain error was "not the proper framework" because the preservation rule did not apply to situations in which a party did not have the opportunity to raise an issue before appeal. Van Huizen , 2017 UT App 30, ¶ 50 n.15, 392 P.3d 933.

¶29 As discussed above, this is incorrect. But even under a proper preservation analysis, we conclude that the plain error exception would not be satisfied here. The applicability of rule 2.11 to the instant facts is not clear enough to hold that the juvenile judge made an obvious error.

¶30 "To demonstrate plain error, a defendant must establish that (i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Holgate , 2000 UT 74, ¶ 13, 10 P.3d 346 (alteration in original) (citation omitted) (internal quotation marks omitted). For an error to be obvious to the trial court, "the law governing the error" must be clear or "plainly settled." Johnson , 2017 UT 76, ¶ 21, 416 P.3d 443 (citing State v. Dean , 2004 UT 63, ¶¶ 16, 18, 95 P.3d 276 ) (internal quotation marks omitted).

¶31 But there is no Utah case law addressing this specific factual scenario. See Van Huizen , 2017 UT App 30, ¶ 28, 392 P.3d 933. And the plain language of rule 2.11 does not clearly encompass the judge's husband within the categories requiring disqualification.

¶32 The potentially relevant portions of rule 2.11(A) state:

A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
...
(2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding....

UTAH CODE JUD. CONDUCT 2.11(A). The court of appeals interpreted rule 2.11 to include the juvenile judge's husband because "he was in the direct chain of command between the County Attorney and the attorney prosecuting this case," both of whom would be fairly encompassed by rule 2.11(A)(2)(a) or (b). Van Huizen , 2017 UT App 30, ¶ 48, 392 P.3d 933.

But it is not obvious from a reading of the plain language of the rule that a supervising attorney not directly involved with the case would fall into the category of persons that requires disqualification.

¶33 With regard to subsection (A)(2)(a)-concerning a situation in which a judge knows that her spouse is "a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party,"-the court of appeals noted, "[w]e are not persuaded that rule 2.11(A)(2)(a)'s language either plainly applies or plainly does not apply to the Chief Criminal Deputy." Van Huizen , 2017 UT App 30, ¶ 27, 392 P.3d 933.

¶34 We agree. The Chief Criminal Deputy was not a "party" to the proceeding. And the terms "officer, director, general partner, managing member, or trustee" suggest positions within a private entity or corporate structure. We agree with the court of appeals' observation that "officer" can apply more broadly to either a government or corporate setting. Van Huizen , 2017 UT App 30, ¶ 25, 392 P.3d 933 (citing Officer , WEBSTER'S NEW WORLD COLLEGE DICTIONARY (5th ed. 2016); Officer , BLACK'S LAW DICTIONARY (10th ed. 2014)). But while the term "officer" would likely include the elected County Attorney, it does not unequivocally encompass the Chief Criminal Deputy. As the court of appeals correctly noted, "it is unclear whether he was 'elected or appointed' to his position ... as understood by the term's definition." Van Huizen , 2017 UT App 30, ¶ 26, 392 P.3d 933. So, we agree with the court of appeals and are similarly "not persuaded that the plain language of rule 2.11(A)(2)(a) answers the question presented." Id. ¶ 25.

¶35 Subsection 2.11(A)(2)(b) also does not clearly apply. While the Chief Criminal Deputy may have had some involvement with the case after it was bound over, it is not clear that he was "acting as a lawyer" in the juvenile court proceedings. And he did not appear as counsel on the case.

¶36 Similarly, with regard to subsection (A)(2)(c), it cannot be said that the Chief Criminal Deputy had "more than a de minimis interest that could be substantially affected" by this one criminal case. There was no monetary advantage for the Chief Criminal Deputy in the result of this case. And any reputational benefit that might be achieved is speculative and difficult to measure. See In re Inquiry Concerning a Judge , 2003 UT 35, ¶ 13, 81 P.3d 758 (holding that a judge's relation to a member of a firm representing a party was not subject to disqualification "where no money is at issue and there is no possibility of a contingent fee arrangement"). Indeed, no matter what the result of the bindover, Van Huizen would have still been subject to a criminal trial in juvenile court and a conviction could have been obtained there. There is no evidence of the juvenile judge's husband having "more than a de minimis interest" in the outcome of the proceedings in juvenile court.

¶37 Under the language of any subsection of rule 2.11(A), it is not clear that the juvenile judge made an obvious error by not recusing herself or seeking a waiver. Accordingly, Van Huizen cannot overcome preservation based on plain error.

II. ALTERNATIVE GROUNDS FOR AFFIRMANCE

¶38 Van Huizen raises two alternative grounds for reversal of the bindover decision. First, he argues that his counsel was ineffective at the bindover hearing for failing to inform the court of the 2013 amendments to the Serious Youth Offender Act and for failing to prepare and present a case for retention. Second, Van Huizen argues that the juvenile judge misinterpreted the Serious Youth Offender Act by failing to adequately consider factors for retention that existed in this case.

¶39 The State argues that we do not have jurisdiction to consider these additional grounds. Both grounds were raised and expressly not addressed in the court of appeals. Van Huizen , 2017 UT App 30, ¶ 12, 392 P.3d 933. But "[w]hen a party raises alternative grounds for affirmance, an appellate court may affirm the judgment appealed from on any legal ground or theory apparent on the record." PC Riverview, LLC v. Xiao-Yan Cao , 2017 UT 52, ¶ 34, 424 P.3d 162 (citation omitted) (internal quotation marks omitted). This holds true even when the alternative grounds were "not considered or passed on by the lower court." Bailey v. Bayles , 2002 UT 58, ¶ 10, 52 P.3d 1158 (citations omitted) (internal quotation marks omitted).

¶40 While we have jurisdiction and discretion to reach the alternative grounds for affirmance raised by Van Huizen, the court of appeals is in a better position to address these arguments in the first instance. For this reason, we decline to reach these arguments and remand to the court of appeals for consideration of Van Huizen's additional claims.

CONCLUSION

¶41 Preservation rules apply to all claims. If a litigant fails to raise a claim in the trial court because the litigant does not know of the claim, or is otherwise unable to raise it, on appeal the litigant still must show that an exception to preservation applies. If circumstances truly prevented a party from raising a claim, it is likely that the party could successfully invoke an exception to preservation. But the party has the burden of making this showing.

¶42 Van Huizen did not preserve his claim that the juvenile court judge who handled his case should have recused herself because she was married to the Chief Criminal Deputy of the prosecuting attorney's office. This is not necessarily fatal to his claim. But he did not show that any exception to preservation applies, and that is fatal.

¶43 We reverse the decision of the court of appeals, reinstate Van Huizen's conviction, and remand to the court of appeals to consider the merits of Van Huizen's additional claims.

Having recused himself, Justice Pearce does not participate herein; District Judge Brian G. Cannell sat.

      Throughout this opinion we cite to the 2013 version of the Utah Code, which governed during the relevant timeframe.

      The court did not rely upon the judge's former employment in the Weber County Attorney's Office as a basis for recusal.

      Van Huizen prevailed in the court of appeals on all issues before us, so he may not cross-petition for affirmance on alternative grounds that do not affect the outcome of the court of appeals' decision. "Appellees ... may not use a cross-appeal as a vehicle for arguing for the affirmance of a [lower] court's judgment. Appellees must instead raise an alternative ground for affirmance in the briefing of the initial appeal." Helf v. Chevron U.S.A. Inc. , 2015 UT 81, ¶ 62, 361 P.3d 63. If appellees "merely desire the affirmance of the lower court's judgment, they need not, and should not, cross-appeal or cross-petition." State v. South , 924 P.2d 354, 356 (Utah 1996). Litigants should only cross-appeal "if they wish to attack a judgment of a lower court for the purpose of enlarging their own rights or lessening the rights of their opponent." Id . at 355 (citations omitted).

      In Johnson , we explained that the presence of a rare procedural anomaly is not dispositive. Rather, it "opens the door to a deeper inquiry." 2017 UT 76, ¶ 9, 416 P.3d 443. Additional factors that should be considered include (a) whether the failure to address an unpreserved issue would result in manifest injustice, (b) whether there is a significant constitutional right or liberty interest at stake, and (c) judicial economy. Id . ¶ 37.

      This does not mean we are not concerned with the situation Van Huizen has identified. A judge must recuse herself if "the judge's impartiality might reasonably be questioned...." Utah Code Jud. Conduct Rule 2.11(A). While the specific situation here has not been previously addressed, the court of appeals conducted a careful interpretation of rule 2.11 and determined that the facts at hand created an appearance of impartiality. This was not settled law during Van Huizen's juvenile court proceedings, and it is not obvious from the plain language of rule 2.11. But the court of appeals' analysis identifies legitimate concerns suggesting the rule should be reviewed and possibly clarified.

      E.g. , Officer , Black's Law Dictionary (10th ed. 2014) ("Someone who holds an office of trust, authority, or command. In public affairs, the term refers esp. to a person holding public office under a national, state, or local government, and authorized by that government to exercise some specific function. In corporate law, the term refers esp. to a person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a CEO, president, secretary, or treasurer."); Director , Black's Law Dictionary (10th ed. 2014) ("1. Someone who manages, guides, or orders; a chief administrator. 2. A person appointed or elected to sit on a board that manages the affairs of a corporation or other organization by electing and exercising control over its officers."); Partner , Black's Law Dictionary (10th ed. 2014) ("1. Someone who shares or takes part with another, esp. in a venture with shared benefits and shared risks; an associate or colleague.... 2. One of two or more persons who jointly own and carry on a business for profit....").

      The Chief Criminal Deputy's involvement was limited to "respond[ing] on behalf of the Weber County Attorney to communications from Van Huizen's current counsel when counsel substituted into the case," and "request[ing] digital copies of several proceedings, on behalf of either himself or a colleague." Van Huizen , 2017 UT App 30, ¶ 37, 392 P.3d 933.