author: WILKINS, Justice:

text:
    2004 UT 26
    PRINCE, YEATES & GELDZAHLER, a professional corporation, Plaintiff, Counterclaim Defendant, Appellant, and Cross-Appellee, v. Robert S. YOUNG, Defendant, Counterclaimant, Appellee, and Cross-Appellant.
    No. 20020347.
    Supreme Court of Utah.
    March 30, 2004.

      M. David Eckersley, Salt Lake City, for plaintiff.
    Samuel 0. Gaufin, Daniel L. Berman, Salt Lake City, for defendant.
   WILKINS, Justice:

¶ 1 Plaintiff Prince, Yeates & Geldzahler (“Prince Yeates” or “the firm”) appeals the district court’s denial of the firm’s motion for summary judgment on defendant Robert S. Young’s counterclaim for breach of express contract and its grant of partial summary judgment to Young on the firm’s breach of fiduciary duty claim. We reverse.

FACTUAL AND PROCEDURAL HISTORY

¶2 In April 1995, Prince Yeates hired Young as an associate attorney. Previously, Young had spent the majority of his twelve-year legal career as general counsel for Rocky Mountain Helicopters, where he acquired considerable experience in helicopter crash litigation. Prior to joining Prince Yeates, Young met with John Ashton, the firm’s then-president, to discuss compensation. Under the terms of his original employment agreement, which was never reduced to writing, Young accepted a starting salary of $70,000 per year. During their discussions, Ashton also indicated to Young that the firm would evaluate his performance after the first year and that, as a general rule, attorneys at Prince Yeates typically received increased compensation based on performance and positive results. In addition, with respect to becoming a shareholder, Ash-ton told Young that, depending upon his performance, the usual partnership track for a lateral hire with Young’s experience ranged from two to three years.

¶3 In 1996, Young agreed to represent Charles Krause, who had sustained serious injuries in a helicopter crash, in a personal injury action in Texas. At approximately the same time, Young also undertook the representation of Mountain West Helicopters, the owner of the helicopter involved in Krause’s accident, in a related lawsuit filed in federal court in Utah. As well as being the originating attorney, Young was the only lawyer at Prince Yeates who performed any work on either case.

¶ 4 For the next two years, Young spent considerable time on these two contingent fee cases, which resulted in lower collections and higher work-in-process figures compared to other Prince Yeates attorneys. As a result, some members of the firm began to question Young’s overall profitability • and readiness to become a shareholder. In September 1998, perhaps sensing this tension, Young inquired as to how the contingent fee in the Krause ease (assuming a successful outcome) would be divided between himself and Prince Yeates. The firm’s Board of Directors (“the Board”) responded by assigning Ashton and John Chindlund, Prince Yeates’ then-president, to explore the possibility of reaching an agreement with Young on the Krause fee.

¶ 5 Between December 1998 and May 1999, Ashton and Chindlund met with Young on several occasions to negotiate an appropriate allocation of the Krause fee. Throughout these meetings, both Prince Yeates (represented by Ashton and Chind-lund) and Young communicated their intention to- be “fair” with each other in attempting to determine the amount of “fair and equitable” compensation that Young would receive from the Krause fee. Ultimately, the two parties reached a tentative verbal agreement under which Young would take one-third of the Krause fee, with the remaining two-thirds going to the firm. On May 5, 1999, Chindlund memorialized this proposal in writing and requested that Young sign it to acknowledge his acceptance. Young did not sign.

¶ 6 On June 14, 1999, Young learned that the Krause case had settled three days earlier at a mediation in Texas, which he did not attend, and that the contingent fee recovery would be nearly $650,000. The following day, June 15, without disclosing his knowledge of the settlement to his employer, Young made a counteroffer to the firm’s May 5 proposal. In his counteroffer, Young agreed to divide the Krause fee one-third to himself and two-thirds to the firm, provided Prince Yeates made him a shareholder, allowed him a voice in that year’s bonus distribution, and guaranteed an increased salary for the next two years. According to Young, over the course of their numerous meetings, Ashton and Chindlund promised him that the firm would fulfill these additional conditions upon the successful resolution of the Krause case. Ashton and Chindlund denied making such promises, and the firm did not respond to Young’s proposal. Finally, on July 2, Young wrote a memo to the Board, informing them that he would leave Prince Yeates in two weeks if an agreement could not be reached on his counteroffer. The firm accepted Young’s resignation on July 7.

¶ 7 After his departure, Prince Yeates learned that Young had represented certain clients during 1998 and 1999 without disclosing the representation to the firm, while simultaneously using firm resources and filing pleadings in the firm’s name in connection with these matters. In addition, Young retained all fees derived from these cases for himself. Prince Yeates then filed suit against Young for breach of fiduciary duty, and Young counterclaimed alleging, among other causes of action, breach of oral contract. The firm twice moved for summary judgment on Young’s counterclaim, and the district court denied both motions with respect to the contract claims. Prince Yeates and Young also each moved for partial summary judgment on the breach of fiduciary duty claim. The district court denied the firm’s motion, granted Young’s, and the case proceeded to trial.

¶ 8 At trial, the special verdict form asked the jury to determine if Young “was entitled to additional compensation as a result of the Krause fee either under his original oral employment contract or a valid contract with regard to the helicopter cases.” The jury answered in the affirmative and determined that $280,000 represented “the fair and reasonable amount of the fee” owed to Young.

¶ 9 On appeal, Prince Yeates challenges (1) the district court’s denial of its two summary judgment motions on Young’s breach of contract counterclaim; (2) the district court’s grant of partial summary judgment to Young and denial of partial summary judgment to the firm on its breach of fiduciary duty claim; (3) the district court’s denial of Prince Yeates’ motion for a directed verdict on the counterclaim; (4) the sufficiency of the evidence presented by Young to support the jury verdict; and (5) the district court’s refusal to allow the firm to introduce evidence of Young’s competing law practice. On cross-appeal, Young asserts that the district court erred when it denied his post-trial request for attorney fees, expenses, and prejudgment interest. Because the case is fully resolved by our analysis of the district court’s summary judgment rulings, we do not address the other issues raised.

ANALYSIS

I. STANDARD OF REVIEW

¶ 10 We review the district court’s rulings on summary judgment motions for correctness. Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 14, 10 P.3d 338; see Utah R. Civ. P. 56(c). In the context of cross-motions for summary judgment, we examine each motion separately, viewing the facts and reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Surety Underwriters, 2000 UT 71 at ¶ 15, 10 P.3d 338.

II. BREACH OF EXPRESS CONTRACT

¶ 11 Young asserts that Prince Yeates entered into two separate express contracts with him: (1) the original 1995 oral employment agreement; and (2) the discussions between Ashton, Chindlund, and Young regarding the “fair and equitable” division of the Krause fee. We review each in turn.

A. The Original Employment Agreement

¶ 12 Under the terms of his original oral employment agreement, Young accepted Prince Yeates’ offer to become an associate attorney at a starting salary of $70,000 per year. In previous conversations, Ashton indicated to Young that, as a general rule, attorneys at the firm typically received increased compensation based on performance, and that the usual shareholder track for a lateral hire with Young’s experience ranged from two to three years. Although nothing was ever reduced to writing, Young claims that these representations created an express contract under which Prince Yeates agreed to pay him additional compensation contingent upon positive performance. Young then argues that his recovery of the Krause fee constitutes contractual performance sufficient to warrant increased remuneration. We disagree.

¶ 13 In Nielsen v. Gold’s Gym, we noted that “ ‘a meeting of the minds on the integral features of an agreement is essential to the formation of a contract’ ” and, consequently, “ ‘[a]n agreement cannot be enforced if its terms are indefinite.’ ” 2003 UT 37, ¶ 11, 78 P.3d 600 (quoting Richard Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996)). Here, Ashton and Young discussed the general relationship between performance and compensation at Prince Yeates. At no point in these conversations did Ashton represent to Young that the firm would pay him a specific amount of additional compensation in the future, or that Young was guaranteed to become a shareholder. Furthermore, Ashton never provided, nor did Young ask for, clarification on what exactly constituted “performance” sufficient to trigger increased compensation. Rather, Ashton merely communicated Prince Yeates’ usual practice; namely, that as a general rule, attorneys at the firm typically received additional compensation if they performed well.

¶ 14 Without some definite language addressing the amount, timing, or conditions of Young’s potential additional compensation, Ashton’s comments represent “only the facade of a promise, ... statements] made in such vague or conditional terms that the person making [them] commits himself to nothing.” Res. Mgmt. Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028, 1036 (Utah 1985). Such statements “neither bind[] the person making [them] ... nor function[ ] as consideration for a return promise.” Id. In short, “where there was simply some nebulous notion in the air that a contract might be entered into in the future, the court cannot fabricate the kind of a contract the parties ought to have made and enforce it.” Valcarce v. Bitters, 12 Utah 2d 61, 362 P.2d 427, 428-29 (1961). Therefore, based upon the uncontested material facts viewed in the light most favorable to Young, we hold as a matter of law that Ashton’s broad, indefinite statements to Young pertaining to the general relationship between performance and compensation did not create an express contract binding Prince Yeates to pay Young greater compensation, or advance him to shareholder status. As a result, the district court erred when it denied Prince Yeates summary judgment on Young’s counterclaim.

B. The Krause Fee Discussions

¶ 15 In addition, Young also contends that Prince Yeates entered into a second express contract when Ashton and Chindlund communicated the firm’s intention to be “fair” in negotiating the amount of “fair and equitable” compensation that he would receive from the Krause fee. Again, we disagree.

¶ 16 Like his earlier argument on the original employment agreement, Young’s claim fails because the firm’s statements regarding the anticipated “fair and equitable” division of the Krause fee were too indefinite to create an express contract. Our prior jurisprudence clearly establishes that a contract cannot exist without a meeting of the minds on the central features of the agreement. See Nielsen, 2003 UT 37 at ¶ 11, 78 P.3d 600; Tsern, 928 P.2d at 373. Simply stated, “[a] condition precedent to the enforcement of any contract is that there be a meeting of the minds of the parties, which must be spelled out, either expressly or impliedly, with sufficient definiteness to be enforced.” Valcarce, 362 P.2d at 428.

¶ 17 Here, although Prince Yeates and Young each expressed their intention to allocate the Krause fee in a “fair and equitable” manner, no agreement was ever reached on the integral feature of the alleged contract — Young’s compensation. Other than the tentative one-third/two-thirds division outlined in Chindlund’s May 5, 1999 memo, which Young expressly rejected with his counteroffer, the parties never agreed upon the specific amount of, or formula to determine, Young’s share of the Krause fee. In the absence of any consensus on actual numbers or adoption of a mutually satisfactory method of calculating “fair and equitable” compensation, Prince Yeates’ stated desire to be “fair” to Young, standing alone, is too indefinite to create a contractual obligation. “So long as there is any uncertainty or indefiniteness, or future negotiations or considerations to be had between the parties, there is not a completed contract. In fact, there is no contract at all.” Candland v. Oldroyd, 67 Utah 605, 248 P. 1101, 1102 (1926). See also Tsern, 928 P.2d at 373-74 (noting that “when parties have not agreed on a reasonable price or a method for determining one, ‘the agreement is too indefinite and uncertain for enforcement’ ” (quoting 1 Joseph M. Perillo, Corbin on Contracts § 4.3 (rev. ed.1993))). Other jurisdictions also take this approach. See Freedman v. Pearlman, 271 A.D.2d 301, 706 N.Y.S.2d 405, 407-08 (App.Div.2000) (holding that “alleged promises ... to provide ‘fair compensation’ and to ‘equitably’ divide the draw were too indefinite to be enforced”); Turcott v. Gilbane Bldg. Co., 94 R.I. 225, 179 A.2d 491, 492-93 (1962) (same).

¶ 18 In sum, Prince Yeates’ commitment to be “fair” to Young in attempting to determine his “fair and equitable” compensation from the Krause fee was too indefinite to create an express contract. Again, viewing the material facts in the light most favorable to Young, we reverse the district court and hold, as a matter of law, that Prince Yeates was entitled to summary judgment on Young’s counterclaim.

III. BREACH OF FIDUCIARY DUTY

¶ 19 Prince Yeates next argues that Young breached his fiduciary duty of loyalty — specifically, a duty of non-competition — when he represented clients in the firm’s name without disclosing the representation to the firm, expended firm resources and filed pleadings in the firm’s name in connection with these matters, and retained all fees derived from these cases for himself. The district court denied Prince Yeates’ motion for partial summary judgment on the issue of liability and granted Young’s cross-motion, reasoning that, as a mere employee, he owed no fiduciary duty of non-competition to the firm. Once more, we disagree.

¶ 20 As a general matter, the second Restatement of Agency provides that “[u]nless otherwise agreed, an agent is subject to a duty not to compete with the principal concerning the subject matter of his agency.” Restatement (Second) of Agency § 393 (1958). Furthermore, “[t]he rules as to the duties and liabilities to the principal of agents who are not servants [also] apply to servants.” Id. at § 429. While the Restatement does not specifically include “employees” as “agents,” it does refer to “servants,” a term synonymous with “employees.” See Black’s Law Dictionary 1372 (7th ed.1999) (defining “servant” by pointing to the definition of “employee”).

¶ 21 Although this court has not directly addressed the issue of whether “mere employees” owe their employers a fiduciary duty of non-competition, other jurisdictions have. In Fryetech, Inc. v. Harris, the defendants argued that the fiduciary duties of good faith and loyalty did not apply to “mere employees.” 46 F.Supp.2d 1144, 1152 (D.Kan.1999). The court rejected this contention, emphasizing that “[w]hile most of the cases which have addressed the fiduciary responsibilities of agents ... have involved corporate directors or officers, there is no basis for concluding these are the only types of agents subject to fiduciary duties.” Id. Rather, “the cases speak of the duties of agents without respect to their exact status.” Id.; see also Bessman v. Bessman, 214 Kan. 510, 520 P.2d 1210, 1217 (1974) (“An agent or employee of another is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.” (internal quotations omitted)); Chernow v. Reyes, 239 N.J.Super. 201, 570 A.2d 1282, 1283, 1284 (Ct.App.Div.1990) (holding that even though an employee’s oral employment contract did not specifically prohibit competition, “[a]n employee owes a duty of loyalty to the employer and must not, while employed, act contrary to the employer’s interest,” which necessarily includes “a duty not to compete with the employer’s business”).

¶ 22 In response, Young cites Microbiological Research Corp. v. Muna, 625 P.2d 690 (Utah 1981), ostensibly for the proposition that, under Utah law, “mere employees” owe no fiduciary duties to their employers. Young misreads Muna. This court in Muna noted that when a corporate officer no longer serves in that capacity due to resignation or removal, but remains as an employee, the fiduciary relationship may cease, depending on the factual circumstances. 625 P.2d at 695. However, it is incorrect to conclude, as Young does, that this observation somehow inevitably leads to the conclusion that employees necessarily have no fiduciary duties to their employers. That is not the case. Moreover, Young cites no additional applicable law from this or any other jurisdiction.

¶ 23 In the relationship of a lawyer and his or her employer, there does exist a duty of honest and ethical behavior. Because of the privilege granted to engage in the practice of law, we impose upon members of our bar a fiduciary duty that encompasses the obligation to not compete with their employer, which we define as any law firm or legal services provider who may employ them in a legal capacity, without the employer’s prior knowledge and agreement.

¶ 24 We therefore hold, as a matter of law, that the district court erred in denying Prince Yeates’ motion for partial summary judgment on its breach of fiduciary duty claim and in granting Young’s cross-motion. To hold otherwise would imply that attorneys are free to join law firms, derive benefits from that association, and essentially operate as sole practitioners while simultaneously receiving a salary and using firm resources for their independent legal activities. If Young was unhappy at Prince Yeates, he was free, as an at-will employee, to leave at any time and presumably take those clients who wished to follow him. Merely because he was afraid that his interest in the Krause fee would be jeopardized does not justify his non-disclosure of representation and subsequent retention of fees. He had a higher duty to Prince Yeates than that. With that in mind, we now turn to the question of the firm’s remedy.

IV. REMEDY

¶ 25 Regarding an appropriate remedy, Prince Yeates urges us to require the forfeiture of both Young’s share of the Krause fee (determined by the jury to be $280,000) and all compensation paid by the firm to Young from January 26,1998 through July 7, 1999-the time period during which Young breached his fiduciary duty of non-competition. To support this argument, Prince Yeates cites several eases from other jurisdictions where courts imposed total forfeiture upon disloyal employees. See, e.g., Bon Temps Agency Ltd. v. Greenfield, 184 A.D.2d 280, 584 N.Y.S.2d 824, 825-26 (App. Div.1992); Vendo Co. v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1, 14 (1974).

¶26 Although we acknowledge that total forfeiture may be proper in certain circumstances, we decline to implement such a harsh remedy in this case. Given that the number of undisclosed clients and the amount of retained fees were comparatively small, Young’s conduct, while unquestionably giving rise to liability, does not warrant so punitive a sanction. Moreover, with our reversal today of the summary judgment rulings already described, Young has no share of the Krause fee to forfeit, due in no small part to Young’s own lack of honesty and candor with Prince Yeates when the Krause case was settled. However, we do hold that the appropriate remedy for Young’s breach of fiduciary duty is the disgorgement of the fees charged and collected by Young while employed at the firm but not previously paid over to Prince Yeates. As such, we remand this issue to the district court, with instructions to determine the amount of those fees and order their payment to the firm forthwith.

CONCLUSION

¶ 27 We reverse the district court’s denial of summary judgment to Prince Yeates on Young’s counterclaim for breach of express contract. With respect to the original employment agreement, we hold that Ashton’s statements to Young addressing the general relationship between performance and compensation were too indefinite to create an enforceable contract term. Likewise, Prince Yeates’ commitment to be “fair” to Young in determining his “fair and equitable” compensation from the Krause fee was similarly indefinite, and therefore insufficient to give rise to an enforceable contract.

¶ 28 Secondly, we reverse the district court’s denial of the firm’s partial summary judgment motion on the issue of liability for breach of fiduciary duty, and its attendant grant of Young’s cross-motion. We hold that Young breached his fiduciary duty of non-competition when he represented clients without disclosing the representation to Prince Yeates, expended firm resources and filed pleadings in the firm’s name in connection with these matters, and retained all fees derived from these eases for himself. As such, we further hold that the appropriate remedy for Young’s breach is the disgorgement of those ill-gotten fees to Prince Yeates. We reverse and remand for proceedings consistent with this opinion.

¶ 29 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Judge McIFF concur in Justice WILKINS’ opinion.

¶ 30 Having disqualified himself, Justice NEHRING does not participate herein; District Judge K.L. McIFF sat.

      . In addition, by invoking Prince Yeates' name, Young also effectively made the firm liable for any professional liability arising from the representation.

      . We need not, and do not, decide today whether all "mere employees” owe fiduciary duties to their employers to not compete with the employer's legitimate business interests.


source: Caselaw Access Project

author: NEHRING, Justice:

license: Public Domain

text:
    2004 UT 29
    STATE of Utah, Plaintiff and Appellee, v. Stacey NELSON-WAGGONER, Defendant and Appellant.
    No. 20000613.
    Supreme Court of Utah.
    April 16, 2004.

      Mark L. Shurtleff, Att’y Gen., Jeanne In-ouye, Asst. Att’y Gen., Salt Lake City, N. George Daines, Logan, for plaintiff.
    Margaret P. Lindsay, Provo, for defendant.
   NEHRING, Justice:

¶ 1 Stacey Nelson-Waggoner appeals his conviction for aggravated sexual assault. The trial court sentenced Mr. Nelson-Wag-goner to a prison term of ten years to life, to be served consecutively with a sentence from a prior first degree felony conviction. On appeal, Mr. Nelson-Waggoner asserts: (1) that the trial court committed plain error by allowing the State to amend the criminal information two days prior to trial, and (2) that he received ineffective assistance of counsel. We affirm.

¶2 In November 1996, K.W. was living with her parents in Logan, Utah. The family had recently moved to Logan from Provo, Utah, and K.W. had yet to make any new friends in the area. On a Friday evening shortly before Thanksgiving, K.W. met Mr. Nelson-Waggoner at a dance club in Salt Lake City. Mr. Nelson-Waggoner, who also lived in Logan, told K.W. that he was a football player for Utah State University (he wasn’t), and said that he could introduce her to his friends. K.W. welcomed the prospect to meet new people and gave him her telephone number.

¶ 3 The next day Mr. Nelson-Waggoner phoned K.W. and asked her to have lunch with him on Sunday. She agreed and met him at a pizzeria early the following afternoon. At his suggestion, they went to a different restaurant, after leaving her car in a Utah State University dormitory parking lot.

¶ 4 Following lunch, Mr. Nelson-Waggoner asked K.W. to go with him to his fraternity house so he could say goodbye to a friend. She rode with him to the fraternity house and waited briefly in his car while he went inside. When he returned, Mr. Nelson-Wag-goner asked K.W. if he could go to his dormitory room to change from his suit into casual clothing. He said that all the football players lived at the dormitory and that if K.W. wanted to meet them, she only had to let him know. They drove to the dormitory, and K.W. went inside with him to his room.

¶5 The dormitory room was small, and most of the room was taken up by a large bed. K.W. sat on the corner of the bed closest to the door and watched television. As Mr. Nelson-Waggoner started to undress by removing his suit jacket, K.W. asked if she could leave the room. He responded “no,” and went into another room to finish changing. When Mr. Nelson-Waggoner returned, he was wearing a shirt “with the sides cut out” and athletic shorts, but no shoes or socks.

¶ 6 Mr. Nelson-Waggoner sat on a chair near the bed and appeared to make two phone calls while K.W. remained sitting on the corner of the bed. After hanging up the phone, Mr. Nelson-Waggoner sat down on the bed next to K.W. She asked him about the pictures of two little girls on his cork-board. He said they were his daughters. K.W. later testified that the pictures had made her wonder if Mr. Nelson-Waggoner were married, but decided it was not important to her because she “wasn’t really there to date him.”

¶ 7 Mr. Nelson-Waggoner then told K.W. she was “cute” and turned and pinned her arms above her head. He began kissing her and running his hand over her breasts. When she told him to stop, he persisted and bit her neck, drawing blood. She again told him to stop, threatening to scream. He continued his attack and K.W. screamed; he released her, and she ran from the room.

¶ 8 The State charged Mr. Nelson-Wag-goner with aggravated sexual assault. The original criminal information gave the date of the offense as “on or about: November 17, 1996 to November 30, 1996.” At the preliminary hearing, K.W. testified that the offense occurred on Sunday, November 24,1996.

¶ 9 Mr. Nelson-Waggoner then filed a motion for a bill of particulars to require the State to specify the place, date, and time of the offense. In its response, the State again placed the offense on a Sunday between November 17 and November 30, 1996, but conceded that it was unable to specify the exact date. Mr. Nelson-Waggoner moved the court to require the State to identify the precise date and time of the offense. The court addressed the matter at a pre-trial hearing, asking the State if it could provide a more specific date and time. The State repeated that it could not. The record does not disclose whether the court ruled on this motion.

¶ 10 At the same pre-trial hearing, Mr. Nelson-Waggoner filed a notice of alibi. He stated he would call witnesses at trial to establish that he was in the Cache County area on Sunday, November 17, 1996, but not in the company of K.W., and that he was in Phoenix, Arizona, on Sunday, November 24, 1996. These were the only Sundays within the range of dates provided by the State in its response to Mr. Nelson-Waggoner’s motion for a bill of particulars. Mr. Nelson-Waggoner said he had recently learned that K.W. was “lea[n]ing more towards” November 17 as the date of the offense, instead of November 24, the date she testified to at the preliminary hearing.

¶ 11 About three weeks before trial, Mr. Nelson-Waggoner filed a second notice of alibi, which he later amended, correcting the name of one of his witnesses. In these notices, he repeated his intention to call witnesses to establish that he was in Cache County but not with K.W. on November 17, 1996, and that he was in Phoenix, Arizona, on November 24,1996.

¶ 12 Two days before the trial began, the State amended its information, narrowing the date of the offense to “on or about November 17, 1996.” Mr. Nelson-Waggoner did not object.

¶ 13 At trial, Mr. Nelson-Waggoner called three witnesses. None of the witnesses could vouch for his whereabouts on November 17,1996. In closing argument, the prosecutor stated that K.W.’s trial testimony about the assault was uncontroverted by any defense witnesses and that Mr. Nelson-Wag-goner had failed to produce helpful relevant alibi witnesses.

¶ 14 Mr. Nelson-Waggoner brings two issues before us. First, he argues that the trial court erred in allowing the State to amend its information just two days before trial. He acknowledges, however, that he failed to preserve this issue before the trial court and accordingly invites us to review the issue under the standard of plain error. Second, he argues that he received ineffective assistance of counsel, claiming that his lawyer (1) failed to object to the amended information, and (2) failed to object to allegedly improper statements made during the State’s closing argument. We review these issues as a matter of law. State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376. We address each of Mr. Nelson-Waggoner’s issues in turn.

I. AMENDMENT OF INFORMATION

¶ 15 Mr. Nelson-Waggoner contends that the trial court erred by allowing the State to amend its information to pare the field of possible dates of the assault from two weeks (November 17 to November 30) to one day (November 17). He speculates that the State’s only reason for doing so was that it became aware of Mr. Nelson-Waggoner’s solid alibi testimony that he was in Arizona during most of the two-week period covered in the earlier information. He argues that allowing the State to amend the information was error because his substantial rights were prejudiced, in violation of Utah Rule of Criminal Procedure 4(d).

¶ 16 Mr. Nelson-Waggoner admits this claim was not raised at the trial level and was thus not preserved for appeal. Under ordinary circumstances, we will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional circumstances exist. State v. Arguelles, 2003 UT 1, ¶ 41, 63 P.3d 731. Mr. Nelson-Waggoner argues that his case meets the exception on both counts. He further argues that manifest injustice will result if we do not address his claim. We disagree.

[T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) An 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. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). Because the trial court did not err in permitting the State to amend its information, Mr. Nelson-Waggoner’s argument fails to clear the first hurdle.

V17 The right of an accused to know the nature of the offense with which he is charged is a fundamental right guaranteed by both our federal and state constitutions. This right is rooted in the recognition that when the government exercises its authority to bring criminal charges against a person and thereby places him at risk of losing his liberty, the accused should be entitled to insist that the crime be defined with such reasonable clarity that he can mount a defense. State v. Fulton, 742 P.2d 1208, 1213-14 (Utah 1987). By requiring that an offense be specifically identified, the right to be apprised of the nature of the crime also reinforces the protection against double jeopardy. Id.

¶ 18 Rule 4 of the Utah Rules of Criminal Procedure gives practical expression to these fundamental rights. It defines the charging documents, describes the scope of their content, provides rules of construction, and, of importance here, sets out the limitations on their amendment. Specifically, rule 4(d) states that “[t]he court may permit an indictment or information to be amended at any time before verdict if no additional or different offense was charged and the substantial rights of the defendant are not prejudiced.” Utah R.Crim. P. 4(d). Here, there is no contention that an additional or different offense is charged. Instead, Mr. Nelson-Wag-goner argues that his substantial rights were prejudiced because the State’s amendment of the information undermined his theory of the case in two ways: (1) he was deprived of the opportunity to argue that K.W. was not credible, and (2) he was unable to fully exploit his alibis. Neither contention amounts to an infringement of Mr. Nelson-Waggoner’s substantial rights.

¶ 19 First, Mr. Nelson-Waggoner claims that by fixing a specific date for the offense, the amended information vitiated his plan to attack K.W.’s credibility. According to Mr. Nelson-Waggoner, K.W.’s inconsistent statements regarding the date of the assault were rendered irrelevant when the amended information alleged a specific date. It is unclear to us why any rule of evidence would foreclose inquiry into K.W.’s changed recollection or why Mr. Nelson-Waggoner was impaired from piecing together a defense theory from inconsistencies between KW.’s preliminary hearing and trial testimony. Nevertheless, Mr. Nelson-Waggoner did not pursue this course of action, and accordingly, no substantial right was prejudiced.

¶20 Second, we have held that an amendment to an information which expands the range of dates for the occurrence of an alleged offense can implicate substantial rights of a defendant by compromising his opportunity to present alibi evidence. State v. Robbins, 709 P.2d 771, 773 (Utah 1985). In Robbins, we imposed a duty on trial courts “to require the State to give the defendant the best information it has as to when the alleged crime' took place.” Id. There, we disapproved of the State’s unexplained amendment of its information to expand the dates when Mr. Robbins allegedly sexually abused a child beyond those in the original information for which Mr. Robbins had filed a notice of alibi. We noted that “due process requires that an accused be given sufficiently precise notification of the date of the alleged crime so that he can prepare his defense.” Id. at 772 (citing McNair v. Hayward, 666 P.2d 321, 326 (Utah 1983)).

¶ 21 When compared to Robbins, the facts here display graphically why not every amendment to an information which frustrates a defendant’s theory of the case transgresses a “substantial right.” Mr. Nelson-Waggoner seeks to fault the trial court for following our instructions in Robbins by requiring the State to give him the best information it had as to when the assault of K.W. took place. The identification of a precise date rendered irrelevant Mr. Nelson-Wag-goner’s alibis for the dates no longer at issue, but this development could not have reasonably altered the result. Thus, Mr. Nelson-Waggoner’s alibi defense was not diminished in any meaningful way, and we do not find there to be plain error on the part of the trial court.

¶22 Mr. Nelson-Waggoner next argues that if we do not consider his unpreserved argument as plain error, we should take it up due to “exceptional circumstances.” Mr. Nelson-Waggoner insists that his case is procedurally exceptional due to (1) the length of time between the alleged assault and trial (3 years), (2) the repeated discussions between the parties and the trial court concerning the date and time of the offense and Mr. Nelson-Waggoner’s request for a bill of particulars/specification of date and time of offense, (3) the difference between the date of offense in the victim’s preliminary hearing testimony and the amended information, and (4) Mr. Nelson-Waggoner’s alibi evidence.

¶23 We have said that the extraordinary circumstances doctrine applies to “rare procedural anomalies.” Dunn, 850 P.2d at 1209 n. 3. Recently, we have applied the exception sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice. The court of appeals has aptly characterized the concept as a “safety device” against such injustice. State v. Irwin, 924 P.2d 5, 8 (Utah Ct.App.1996) (citing State v. Archambeau, 820 P.2d 920, 923 (Utah Ct.App.1991)).

¶24 We need not dwell on this claim. Having found that the trial court acted properly in permitting the State to amend the information, we necessarily conclude that nothing extraordinary or anomalous has befallen Mr. Nelson-Waggoner which warrants our intervention.

¶ 25 Finally, Mr. Nelson-Waggoner asks us to consider this claim in order to avoid a “manifest injustice” as defined by rule 19(e) of the Utah Rules of Criminal Procedure. He alleges that a manifest injustice will result if we permit the trial court’s unexplained reversal of position on the issue of the date of the alleged offense to go unremedied. According to Mr. Nelson-Waggoner, the trial court told the State that if it could not narrow the range of dates at a preliminary hearing, it would be precluded from asserting more exacting temporal evidence at trial, but later allowed the State to amend its information in contravention of its prior ruling.

¶26 Mr. Nelson-Waggoner’s reliance on rule 19(e) is misplaced. Rule 19(e) reads:

Objections to written instructions shall be made before the instructions are given to the jury. Objections to oral instructions may be made after they are given to the jury, but before the jury retires to consider its verdict. The court shall provide an opportunity to make objections outside the hearing of the jury. Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice. In stating the objection the party shall identify the matter to which the objection is made and the ground of the objection.

Utah R.Crim. P. 19(e). The scope of “manifest injustice” as defined by this rule is limited to jury instructions and does not address the issue raised by Mr. Nelson-Waggoner. Thus, a remedy under rule 19(e) is not available to Mr. Nelson-Waggoner because he has not contested any jury instructions.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶27 Mr. Nelson-Waggoner next asserts that his counsel was ineffective for two reasons: (1) for failing to object to the amended information, and (2) for failing to object to statements made by the State during closing argument. In assessing a claim of ineffective assistance of counsel, we rely on the test created in Strickland v. Washing ton. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To prevail on an ineffective assistance of counsel claim under the Strickland test, ‘a defendant must show (1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.’

State v. Montoya, 2004 UT 5, ¶23, 84 P.3d 1183 (quoting Wickham v. Galetka, 2002 UT 72, ¶ 19, 61 P.3d 978).

¶28 Mr. Nelson-Waggoner’s first argument, that his counsel was ineffective for failing to object to the amended information, is without merit as we have already stated that the amendment was not in error and that the amended information had no likelihood of affecting the outcome of the trial. Therefore, counsel’s failure to object to the amended information was neither deficient nor prejudicial.

¶29 Next, Mr. Nelson-Waggoner argues that his counsel failed to object to improper comments made by the State during closing argument concerning Mr. Nelson-Waggoner’s election not to testify. Mr. Nelson-Waggoner argues that his counsel’s failure to timely object to the State’s comments, which he claims infringed his Fifth Amendment privilege against self-incrimination, was unreasonably deficient.

¶ 30 While we generally will not examine the State’s closing argument if the defendant failed to timely object to it, State v. Hales, 652 P.2d 1290, 1292 (Utah 1982), we will do so if the defendant states that the failure to object was due to ineffective assistance of counsel. State v. Hansen, 2002 UT 114, ¶ 21 n. 2, 61 P.3d 1062. Thus, in this case, Mr. Nelson-Waggoner’s failure to object does not prejudice his ability to raise the issue on appeal.

¶ 31 Accordingly, we review Mr. Nelson-Waggoner’s claim of ineffectiveness under the Strickland standard. We first consider whether counsel’s inaction was, in fact, deficient. Our rule on this subject is well-established. We have previously stated:

A prosecutor has the duty and right to argue the case based on the “total picture shown by the evidence or the lack thereof,” including reference to the paucity or absence of evidence adduced by the defense. But prosecutorial comment on a defendant’s refusal to testify may violate a defendant’s privilege against self-incrimination. Thus, a prosecutor commits constitutional error when his statement is “manifestly intended or [is] of such character that a jury would naturally and necessarily construe it to amount to a comment on the failure of the accused to testify.”

Hales, 652 P.2d at 1291 (quoting State v. Kazda, 540 P.2d 949, 951 (Utah 1975); State v. Nomeland, 581 P.2d 1010, 1011 (Utah 1978) (other internal citations omitted)). It is clear that a prosecutor’s comments about the “paucity or absence” of a defendant’s evidence does not offend constitutional guarantees against self-incrimination. Yet, such a line of attack on a defendant’s case can always be interpreted as an invitation to the jury to convict the defendant because he did not testify. We therefore conclude that the constitutional line is crossed only when a remark or an accumulation of remarks present what can fairly be characterized as an overt reference to a defendant’s failure to testify.

¶ 32 When assessed against this backdrop, the State’s closing argument remarks did not cross the line. The statements Mr. Nelson-Waggoner contests include the following: “no one has told you ... where the defendant was or what he was doing on the 17th. No one has told you, except for one person, and that is [K.W.] ”; “nobody knows where he is on the afternoon of the 17th except for [K.W.] ”; “the evidence you heard is clear ... it is undisputed”; “[i]t’s the truth because that’s all the evidence you’ve heard. And, in fact, the defendant’s brother and two friends took the stand ... and not once did they say, she’s up in the night”; and “the defendant’s brother and his two good friends ... took the stand, they were here available, and not once did they dispute that evidence.” Mr. Nelson-Waggoner presents ten such statements. We need not address them each individually as they share features which permit them to be analyzed as a group.

¶ 33 Individually and collectively, the State’s comments constitute “paucity” statements, and not comments on Mr. Nelson-Waggoner’s silence. Mr. Nelson-Waggoner did in fact have three alibi witnesses testify, none of whom actually indicated that they knew where he was at the time of the assault. The State was clearly entitled to point this out to the jury. The State was also free to highlight an overall shortfall of defense evidence. The remarks which Mr. Nelson-Waggoner culled from the State’s closing argument provide examples of statements which may, but which must not “naturally” or “necessarily,” be interpreted as appeals to convict Mr. Nelson-Waggoner because he did not testify. Thus, we do not find that Mr. Nelson-Waggoner’s attorney rendered ineffective assistance by choosing to not object to either the amended information or to statements made during closing argument. Even if we did, Mr. Nelson-Waggoner has not presented us with sufficient evidence to overcome the second prong of the Strickland test, namely, that the outcome of the trial would have been different if his attorney had in fact objected. Accordingly, we reject Mr. Nelson-Waggoner’s contention that his attorney rendered ineffective assistance.

¶ 34 We affirm the findings and decision of the trial court. We hold that the trial court’s decision to allow the State to amend its information shortly before the trial was not plain error under rule 4(d) of the Utah Rules of Criminal Procedure, nor do we see that exceptional circumstances in this case require us to consider a claim not properly preserved at trial. We also hold that defense counsel’s decision not to object to the amendment or to comments made by the State during closing argument was not deficient, and therefore does not rise to the level of ineffective assistance.

¶ 35 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING’s opinion.

      . In relevant part, article I, section 12 of the Utah Constitution states:
      In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to be confronted by the witnesses against him, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases.
      The Constitution of the United States guarantees the same right:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.
      U.S. Const. amend. VI.

      . See Utah Code Ann. § 76-1-403 (2003); U.S. Const. amend. V.

      . Of course, we can only speculate on whether the State would have objected to the attempted introduction of K.W.’s preliminary hearing testimony or how the trial court would have ruled on the proffer because Mr. Nelson-Waggoner failed to pursue this line of questioning and neither raised nor preserved any evidentiary issue.

      . Mr. Nelson-Waggoner does not assert that his privilege against self-incrimination under article I, section 12 of the Utah Constitution was infringed, and therefore we do not address the issue.


author: DURHAM, Chief Justice: NEHRING, Justice, WILKINS, Justice,

text:
    2004 UT 28
    Roger K. EGGETT, Jr., Plaintiff and Respondent, v. WASATCH ENERGY CORPORATION, a Utah Corporation, Defendant and Petitioner.
    No. 20010786.
    Supreme Court of Utah.
    April 16, 2004.
    Rehearing Denied June 10, 2004.

      Perrin R. Love, Salt Lake City, for plaintiff.
    Merrill P. Nelson, Eric C. Olson, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

¶ 1 We granted certiorari in this case to review the court of appeals’ decision affirming a final judgment awarding plaintiff Roger K. Eggett, Jr. (Eggett) $147,559.96, plus attorney fees. We affirm.

BACKGROUND

¶ 2 In 1993, Eggett formed Wasatch Energy Corporation (Wasatch) to market and distribute natural gas. Two years later, Eggett and two Wasatch employees entered into a Shareholder Agreement, which set forth the shares allotted to each, with Eggett as the majority shareholder. The Agreement provided that if a shareholder left Wasatch, the remaining shareholders could purchase the departing shareholder’s stock. The purchase price would be the book value of the departing shareholder’s stock if he left voluntarily and par value if the shareholder was terminated for cause. The Agreement defined par value as the original price the shareholder paid for the stock, and -book value as the company’s book value multiplied by the departing shareholder’s percentage interest. Company book value was to be determined by Wasatch’s audited financial statements, which were to be prepared in accordance with generally accepted accounting principles (GAAP).

¶ 3 In 1997, following a series of disputes with Wasatch, Eggett tendered his resignation. At that time Eggett remained the largest shareholder in Wasatch, with an ownership interest of 36.5%. Eggett offered to sell his stock to the remaining shareholders for book value.

¶ 4 After Eggett tendered his resignation, Wasatch terminated Eggett for cause, and gave him a check for $1,217, the par value of his stock. When Eggett refused the check, Wasatch cancelled his shares on its books.

¶ 5 Eggett brought suit against Wasatch, claiming (1) breach of his Employment Agreement with Wasatch, (2) breach of the Shareholder Agreement, and (3) breach of the covenant of good faith and fair dealing. Eggett sought additional compensation from Wasatch for the period beginning January 1, 1997, through his effective resignation date. He also sought to recover the book value of his stock, alleging that his termination for cause was a “sham.”

¶ 6 At trial, Eggett testified that to determine the book value of his shares, “you take the [book value] of the company and you multiply it by my ownership interest, which was 36.5%, so we [first] have to determine the [book value of] the company.” Wasatch’s audited financial statements indicated a company book value of $75,452, and Wasatch therefore argued that the book value of Eg-gett’s shares was $75,452 multiplied by Eg-gett’s 36.5% ownership interest, or $27,540.

¶ 7 Eggett, however, claimed that Wasatch had manipulated its financial statements in bad faith to reflect a company book value that was artificially low. Eggett claimed that after he left Wasatch, management changed its policy regarding the length of time uncertain receivables would be held in a “suspense” account. The policy, Eggett testified, had always been to hold such receivables in a suspense account for one year and, if they were not the subject of dispute during the one-year holding period, to include them in company book value at the end of that year. Eggett testified that after his departure, Wasatch management changed the holding period to two years in order to avoid including certain receivables in company book value, thereby depressing the value of Eggett’s shares. At trial, Eggett was allowed to present evidence that company book value should be adjusted to include (1) a $283,000 reserve for anticipated losses on a “swap contract” which had not occurred, (2) $296,252 for suspense account items, which would have been included in company book value under the historical one-year holding period, and (3) $45,553 for a disputed purchase contract. Thus, Eggett maintained, company book value should have totaled $699,778. Eggett argued that the book value of his shares (36.5% of $699,778) was therefore $255,419.

¶ 8 Special Verdict Question Number 5 asked the jury the following: “[W]hat was the ‘book value’ of Wasatch Energy as defined by the Shareholders Agreement?” The jury’s written response was “$135,671.96.” Upon receiving that response, the trial court questioned the jury and discovered that the verdict actually represented the book value of Eggett’s shares, not the total company book value of Wasatch Energy. Accordingly, the court entered judgment for Eggett in the amount of $135,671.61 for the book value of Eggett’s shares of stock, $11,888.35 for “additional compensation,” and over $60,000 in costs and attorney fees.

STANDARD OF REVIEW

¶ 9 Wasatch presents three issues for our review: Whether the court of appeals erred in affirming the trial court’s (1) decision to admit Eggett’s evidence concerning company book value; (2) decision to question and clarify the jury’s verdict; and (3) award of attorney fees on the ground that Wasatch failed to marshal the evidence on this question on appeal. We review the court of appeals’ decision for correctness, which “turns on whether it accurately reviewed the trial court’s decision under the appropriate standard of review.” Clark v. Clark, 2001 UT 44, ¶ 8, 27 P.3d 538.

¶ 10 The court of appeals applies an abuse of discretion standard of review in determining whether a trial court has properly admitted evidence, Gorostieta v. Parkinson, 2000 UT 99, ¶ 14, 17 P.3d 1110, as well as in determining whether a trial court has properly questioned a jury regarding its verdict, see Jorgensen v. Gonzales, 14 Utah 2d 330, 383 P.2d 934, 935-36 (1963) (stating the trial court acted “within its prerogative” by “question[ing] the jury foreman about the possibility of a quotient or chance verdict”); see also Romano v. U-Haul Int’l, 233 F.3d 655, 671 (1st Cir.2000) (“The standard of review for a determination of resubmission of special verdict questions is for abuse of discretion.”); Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1192 (10th Cir.1997) (“[I]t was an abuse of discretion for the trial court to refuse to ask the jury to clarify its verdict.”). The court of appeals does not review the trial court’s factual findings where the party challenging those findings fails to marshal the evidence. Instead, the court of appeals must “assume that the record supports the findings of the trial court.” Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431 (internal quotations omitted).

ANALYSIS

I. ADMISSIBILITY OF EGGETT’S EVIDENCE OF COMPANY BOOK VALUE

U11 According to the Shareholder Agreement, company book value was to be determined by the audited financial statements prepared in accordance with GAAP. The pertinent audited financial statements indicated a company book value of $75,452, and it is undisputed that the book value of Eggett’s own shares is 36.5% of whatever is the company book value. Wasatch therefore arg-ues that Eggett is entitled to 36.5% of $75,452, or $27,540. The trial court, however, allowed Eggett’s evidence showing a higher company book value. The court of appeals affirmed, holding that such evidence was admissible under Eggett’s claim for breach of the covenant of good faith and fair dealing and that the trial court did not abuse its discretion in admitting the evidence. Wasatch argues before this court that the court of appeals erred in applying an abuse of discretion standard of review because the issue was one of contract interpretation, not one of admissibility of evidence.

¶ 12 The court of appeals correctly applied an abuse of discretion standard of review. The issue before that court was whether the trial court properly admitted Eggett’s evidence of book value under his claim for breach of the covenant of good faith and fair dealing, not whether the trial court properly interpreted the Shareholder Agreement.

1113 Extrinsic evidence is generally not admissible to vary unambiguous terms in a contract. See, e.g., Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991) (“A court may only consider extrinsic evidence if, after careful .consideration, the contract language is ambiguous or uncertain.”). Here, however, Eggett argues he has filed two separate claims — one for breach of the Shareholder Agreement, another for breach of the covenant of good faith and fair dealing — and that his evidence of book value was admissible to prove his breach of covenant claim regardless of whether or not it would be admissible under his claim for breach of the Shareholder Agreement.

¶ 14 An implied covenant of good faith and fair dealing inheres in every contract. See, e.g., CIG Exploration, Inc. v. State, 2001 UT 37, ¶ 19, 24 P.3d 966; Malibu Inv. Co. v. Sparks, 2000 UT 30, ¶ 19, 996 P.2d 1043. Under the covenant of good faith and fair dealing, both parties to a contract impliedly promise not to intentionally do anything to injure the other party’s right to receive the benefits of the contract. St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 199 (Utah 1991). A violation of the covenant is a breach of the contract. Id. at 200 (citing Beck v. Farmers Ins. Exch., 701 P.2d 795, 798 (Utah 1985)). Extrinsic evidence may be admissible to prove a claim for breach of the covenant of good faith and fair dealing. For example, in Olympus Hills Shopping Center, Ltd. v. Smith’s Food & Drug Ctrs., Inc., 889 P.2d 445 (Utah Ct.App.1994), the court of appeals held that the trial court had not abused its discretion in admitting extrinsic evidence to prove a claim for breach of the covenant of good faith and fair dealing, even though such evidence was not admissible to vary the terms of the lease contract. Id. at 454, 456; see also Hill v. Hartog, 658 P.2d 1206, 1208 (Utah 1983) (“Evidence which is [inadmissible] for one purpose cannot be excluded if it is admissible [for] another purpose.”).

¶ 15 In the present ease, the court of appeals concluded, and we agree, that although Eggett’s evidence of book value might be extrinsic and therefore inadmissible to vary the terms of the Shareholder Agreement, it was nevertheless admissible to prove Eg-gett’s breach of covenant claim. Eggett claimed that the breach of covenant occurred in the calculation of book value and that Wasatch breached the covenant by deliberately changing the suspense account holding period from one year to two years, thereby yielding an artificially depressed book value in Wasatch’s financial statements for the sole purpose of depriving Eggett of fair compensation for his shares. In order to prove Wasatch acted in bad faith in setting book value too low, Eggett had to present evidence showing that the correct book value was some larger figure. If Eggett had not presented evidence of a higher book value, his breach of covenant claim would have failed. Furthermore, if we were to accept Wasatch’s argument that Eggett could not present his own evidence of company book value solely because it differs from the financial statements, parties in Eggett’s position would be entirely vulnerable to bad faith calculations. Anytime a contract unambiguously pointed to a separate document for a specific figure, the party with power to create or manipulate that document, even if the manipulation was clearly in bad faith, could act with impunity because the other party’s evidence of a different value would always be excluded on the grounds that it varied from the unambiguous contract terms.

¶ 16 We recently noted that “the degree to which a party to a contract may invoke the protections of the covenant turns on the extent to which the contracting parties have defined their expectations and imposed limitations on contract terms.” Smith v. Grand Canyon Expeditions, 2003 UT 57, ¶ 20, 84 P.3d 1154. We further noted that where the contract terms defined company book value as an amount determined in accordance with GAAP, the covenant of good faith and fair dealing had “little, if any, utility.” Id. at ¶ 22. Broadly speaking, the more leeway a party has under the terms of the contract, the more contracting parties may invoke the protections of the covenant of good faith and fair dealing in the exercise of that discretion.

¶ 17 Here, the Shareholder Agreement obligated Wasatch to calculate book value in accordance with GAAP. GAAP, however, is not an exact science and allows a range of possible values in its application. Wasatch had the opportunity to employ some discretion in its use of GAAP. There was thus an implied covenant to act in good faith and deal fairly with Eggett in its choices. While Wasatch’s compliance with GAAP was a circumstance tending to show Wasatch acted in good faith, such compliance is not conclusive. The jury was entitled to conclude that the voluntary change from a one- to a two-year suspense account holding period, subsequent to Eggett’s departure, was a breach of the covenant of good faith and fair dealing, even if such a change did not violate GAAP.

¶ 18 Wasatch next argues that even if Eg-gett alleged breach of the covenant of good faith and fair dealing, and even if his evidence of book value was admissible to prove that claim, Eggett failed to request recovery in the Special Verdict Form. According to Wasatch, it is “absolutely silent on the subject [of the breach of covenant claim], referring only to the breach of contract claims.”

¶ 19 Wasatch misses the critical point: the recovery Eggett sought at trial was the difference between the book value shown by his evidence and the book value set forth in Wasatch’s financial statements. In other words, the same evidence that supported the breach of covenant in the first place — evidence of a higher book value — also proved the amount of damages Eggett sought to recover. Moreover, we find no merit to Wasatch’s argument that Eggett obtained no recovery at trial for his breach of covenant claim. The jury properly considered and decided in the affirmative the issue of whether Wasatch breached the covenant of good faith and fair dealing, as well as the issue of the amount of resulting damages. Eggett made clear in his opening statement that the recovery sought under his breach of covenant claim was the difference between the book value shown by his evidence and the book value set forth in the financial statements: “The third claim that Mr. Eggett seeks is breach of the covenant of good faith and fair dealing.... He essentially seeks the same damages for that breach that he seeks ... for book value of his shares.”

¶ 20 Furthermore, jury instruction number 27 explained Eggett’s breach of covenant claim to the jury:

Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. Under the covenant of good faith and fair dealing each party impliedly promises that it -will not intentionally or purposely do anything which will destroy or injure the other party’s right to receive the fruits of the contract. A breach of the covenant is a breach of the contract.

Question Number 3 of the Special Verdict Form asked, “Do you find that Wasatch Energy breached its agreements or obligations to Roger Eggett, by terminating Roger Eggett for cause and not paying him book value for his shares of stock?” (Emphasis added.) The jury checked “yes” in its written response. Contrary to Wasatch’s interpretation of question 3, we understand it to ask whether Wasatch breached the covenant of good faith and fair dealing. Specifically, question 3 asks whether Wasatch breached “its agreements or obligations.” We read “agreements” as referring to the Shareholder and Employment Agreements, and “obligations” to include the covenant of good faith and fair dealing.

¶ 21 Finally, Wasatch argues that notwithstanding Eggett’s breach of covenant claim, and the jury’s acceptance thereof, the court of appeals was still required to enforce the Shareholder Agreement’s definition of book value as a matter of law. In other words, regardless of anything Eggett might recover under his breach of covenant claim, the book value of Eggett’s stock, as a matter of law, must still be limited to 36.5% of $75,452 ($27,540), because $75,452 was unambiguously set forth as the company book value in the financial statements.

¶ 22 There are two fatal flaws in Wasatch’s argument. First, Wasatch is not entitled to enforce the Shareholder Agreement. A breach of the covenant of good faith and fair dealing is a breach of the Shareholder Agreement itself. St. Benedict’s, 811 P.2d at 200 (citing Beck, 701 P.2d at 798). Therefore, the jury’s finding that Wasatch breached the covenant of good faith and fair dealing means Wasatch breached the Shareholder Agreement itself. As the breaching party, Wasatch has no right to enforcement of the Shareholder Agreement. See, e.g., Holbrook v. Master Prot. Corp., 883 P.2d 295, 301 (Utah Ct.App.1994) (“The law is well settled that a material breach by one party to a contract excuses further performance by the nonbreaching party. Also, a party seeking to enforce a contract must prove performance of its own obligations under the contract.” (citation omitted)); Bell v. Elder, 782 P.2d 545, 548 (Utah Ct.App.1989). The court of appeals was not required, as a matter of law, to enforce the breached Shareholder Agreement in favor of Wasatch, the breaching party-

¶ 23 Second, even if we assume arguendo that Eggett could recover no more than $27,540 under the Shareholder Agreement, this does not help Wasatch. We have previously noted that Eggett’s claims for breach of the explicit terms of the Shareholder Agreement and breach of the covenant of good faith and fair dealing were separate claims. See, e.g., St. Benedict’s, 811 P.2d at 199 (holding trial court erred by failing to consider claim for breach of covenant of good faith and fair dealing as separate from other breach of contract claims). Recovery under one claim is not limited by or tied to recovery under the other claim. The jury found Wasatch “breached its agreements or obligations to ... Eggett” and awarded Eggett $135,671.96 in damages. The jury was not required to apportion the damages award between Eggett’s claims for breach of the Shareholder Agreement and breach of covenant. See Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1164 & n. 3 (Utah 1983) (noting that where the verdict did not identify which theory of liability damages were based on, the verdict should be treated as a general verdict and such verdicts are construed with a view to sustaining them). Wasatch argues that Eggett should recover no more than $27,540 under the Shareholder Agreement. Even if that were true, there is no reason why the jury could not award the balance of Eggett’s damages ($108,131.96) under his breach of covenant claim.

¶ 24 In summary, the court of appeals did not err in applying an abuse of discretion standard of review. The proper issue before it was whether the trial court abused its discretion in admitting Eggett’s evidence of company book value under his claim for breach of the covenant of good faith and fair dealing.

II. THE TRIAL COURT’S CLARIFICATION OF THE JURY’S RESPONSE TO SPECIAL VERDICT QUESTION NUMBER 5

¶ 25 Wasatch next argues that if Eg-gett’s evidence of company book value was properly admitted and the jury actually found breach of the covenant of good faith and fair dealing, Eggett’s recovery must be limited to the amount specified in the original verdict. Special Verdict Question Number 5 asked, “[W]hat was the ‘book value’ of Wasatch Energy as defined by the Shareholders Agreement?” The jury’s written response was “$135,671.96.” Wasatch argues that since the question asked for Wasatch’s book value, the jury found company book value to be $135,671.96 and the book value of Eggett’s shares should be 36.5% of the company book value, or $49,520.27. According to Wasatch, the trial court erred by questioning the jury about its verdict and awarding Eggett the entire $135,671.96. Wasatch also argues that the court of appeals erred in affirming the trial court’s alteration of the jury verdict under Utah Rule of Civil Procedure 47(s). We disagree.

¶ 26 Utah Rule of Civil Procedure 47(s) states that “[i]f the verdict rendered is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be sent out again.” (Emphasis added). This court has previously stated that “ ‘insufficient’ means inadequate or lacking in some requirement, purpose or use.” Jorgensen v. Gonzales, 14 Utah 2d 330, 383 P.2d 934, 935 (1963) (citing Crowe v. Sacks, 44 Cal.2d 590, 283 P.2d 689, 692 (1955)). “Informal” means “defective. in form; not in the usual form or manner; contrary to custom or prescribed rule.” Crowe, 283 P.2d at 692. A verdict in which a jury answers a different question than the one asked is both “informal” and “insufficient.” See, e.g., Langton v. Int’l Transp., Inc., 26 Utah 2d 452, 491 P.2d 1211, 1214 (1971) (noting that where the verdict failed to correspond to the instructions given by the court, it was both insufficient and “defective in form”); see also Crowe, 283 P.2d at 693 (“A verdict which goes beyond the issues ... as stated in the [jury] instructions ... is not in conformity with the instructions and is therefore ‘insufficient.’ ”). This court has stated that “where it is apparent that there is some patent error in connection with the verdict, the court may of course call the matter to [the jury’s] attention and direct them to redeliberate.” Jorgensen, 383 P.2d at 935.

¶ 27 Wasatch argues that rule 47(s) has no application to this case because the verdict contains no patent error. Wasatch directs our attention to Special Verdict Question Number 5 and the jury’s response. Question Number 5 asked, “[W]hat was the ‘book value’ of Wasatch Energy as defined by the Shareholders Agreement?” The jury’s written response was “$135,671.96.” According to Wasatch, both the question and the answer were clear and unambiguous, and therefore no patent error exists on the face of the verdict. Moreover, the figure the jury returned, $135,671.96, was not patently erroneous on its face because it was between the two figures the parties were claiming as company book value.

¶ 28 We reject Wasatch’s argument that there must be patent error on the face of the verdict before the trial court has discretion to question the jury about its verdict. This argument finds no support in the literal language of rule 47(s) itself. The rule states simply that “[i]f the verdict rendered is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be sent out again.” Utah. R. Civ. P. 47(s) (emphasis added). Nothing in the language suggests a verdict must be patently erroneous on its face before a trial court has any discretion to ask for clarification. Additionally, nothing in the language prohibits a trial court, upon discerning some ambiguity or believing the jury answered a question different than the one asked, from questioning the jury to determine what the jury’s true verdict is. See Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1548 (10th Cir.1993) (“[I]t is proper to question jurors to determine exactly what [their] ‘true decision’ is.” (quoting Eastridge Dev. Co. v. Halpert Assoc., Inc., 853 F.2d 772, 783 (10th Cir.1988))). If the questioning reveals that the verdict was, in fact, informal or insufficient, then under rule 47(s) the trial court could properly direct the jury to correct the verdict or send the jury out again.

¶29 We also disagree with Wasatch’s assertion that the “patent error” spoken of in Jorgensen must exist on the face of the verdict. In Jorgensen this court said, “[W]here it is apparent that there is some patent error in connection with the verdict, the court may of course call the matter to [the jury’s] attention and direct them to re-deliberate.” 383 P.2d at 935 (emphasis added). Jorgensen requires “patent error in connection with the verdict,” not “patent error on the face of the verdict.” Id. The difference is significant. In some cases, “patent error in connection with the verdict” will only be “apparent” when the verdict is considered in light of the surrounding circumstances, specifically the evidence offered at trial. A trial court has discretion to consider the whole record in determining whether “there is some patent error in connection with the verdict.”

¶ 30 Case law from other jurisdictions is congruent on this point. The Tenth Circuit, for example, has indicated that a trial court may look to all the surrounding facts and circumstances to determine whether the jury’s verdict is informal or insufficient. Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 1191 (10th Cir.1997). In Unit Drilling, the plaintiff sought recovery of $157,262.36 for breach of contract. Id. at 1189. The jury returned one verdict awarding the plaintiff $70,768.02 on its breach of contract claim and another verdict awarding the defendant a set-off of $86,494.30. Id. The district court interpreted plaintiffs $70,768.02 award to be a pre-set-off award, meaning that after the amount of the set-off was deducted, the plaintiff would recover nothing. Id. at 1190. The plaintiff, on the other hand, argued that the jury had already deducted the set-off in arriving at $70,768.02. The district court refused to question the jury to clarify the verdict.

¶ 31 On appeal, the Tenth Circuit found that the verdict was ambiguous and held that the trial court abused its discretion in refusing to ask the jury to clarify the meaning of its ambiguous verdict. Id. at 1189. The court stated, “[W]e approvef ][of] the practice of asking the jury to clarify its meaning when the court is faced with an ambiguous verdict. ... Whether the jury intended [the plaintiff] to receive a judgment of $70,768.02, or, as the trial court found, nothing, was at the very least ambiguous.” Id. at 1191. The court also indicated that whether or not a verdict is ambiguous depends on all the circumstances:

[T]he district court should make a fair appraisal of the whole record to discern whether the verdict is, in fact, ambiguous. In this case, potentially misleading jury instructions and forms and the susceptibility of the verdict to an interpretation other than the one arrived at by the district court, given the facts of the case, point to an ambiguity in the verdict. Only by asking the jury to clarify its verdict could the court have determined the jury’s “true decision.”
In the present case, the damages awards rendered by the jury were ambiguous and could have been clarified by simply asking the jury a few questions.... We hold that under these circumstances it was an abuse of discretion for the trial court to refuse to ask the jury to clarify its verdict.

Id. at 1191-92 (emphasis added) (citing Resolution Trust, 998 F.2d at 1548).

¶ 32 In the case before us, it was apparent-that there was some patent error in connection with the verdict. The number on the Special Verdict Form suggested to the trial judge that the jury had calculated the book value of Eggett’s shares, not the company book value. It was therefore appropriate for the trial court to clarify the jury’s decision.

¶33 The problem here was apparent because if the jury had taken the figure for which Wasatch was arguing ($75,452) and added the $296,252 suspense account — but not the other adjustments Eggett sought— company book value would then total $371,704. However, it appeared the jury had multiplied that figure by 36.5% to arrive at $135,671.96, the value of Eggett’s shares. Because it appeared to the trial court that this was the case, it “ask[ed] the jury to clarify its verdict ... [to] determinef ] the jury’s true decision.” Unit Drilling, 108 F.3d at 1191 (internal quotations omitted). Upon reviewing the verdict, the court questioned the jury as follows:

The Court: Do I understand, Mr. Robertson [jury foreperson], that the jury’s decision, as I’ve read this question number [5], is this the value that the jury believes should be paid for the shares?
Mr. Robertson: We believe that to be the book value.
The Court: And so-
Mr. Robertson: Paid for the shares.
The Court: ... [L]et me just be sure that I understand what we’re talking about. Is • this the value that you think [Wasatch] owes to Mr. Eggett to purchase his shares?
Mr. Robertson: Yes.
The Court: All right. Now I’m going to ask that question of all of you as jurors if you concur in that determination. Let me go through.
The Court: Okay. I’m going to poll the jury on particularly question number 5. The question, here’s the problem and I want to just explain it to the jury so that I get a clear understanding of what your decision is.
We know from the facts of this case that Mr. Eggett owns 36.5[%]. If I interpret your answer to ... question [number 5] to be $135,000.00 for [company] book value[, t]hat would mean that he would be entitled to 36.5[%] of $135,000.00. If I understand it the way I have now asked you the question, he is entitled to $135,671.96 which is a number that you have come to by some calculation method for the purchase of his shares of stock. So, in other words, this figure, [$]135,000, is a representative smaller figure due to him which represents 36 percent of X which is a larger number. All right? Now, I want to be sure that I understand that correctly and if any of you disagree with that, I want to know that.

(Emphasis added.) The trial court then asked each member of the jury whether the verdict meant that $135,671.96 was the book value of Eggett’s shares. Each member of the jury responded “yes.”

¶ 34 By questioning the jury about its verdict, the trial court was able to verify that the verdict was, in fact, informal and insufficient because the jury had answered the wrong question. At that point, rule 47(s) authorized the trial court to correct the verdict. The trial court “acted not only within its prerogative but properly and discreetly in handling the situation,” Jorgensen, 383 P.2d at 936, and we therefore hold that the trial court properly clarified Special Verdict Question Number 5 and entered judgment thereon.

III. ATTORNEY FEES

¶ 35 Finally, Wasatch argues that the trial court erred in awarding Eggett attorney fees because Eggett’s counsel failed to distinguish the recoverable fees sought from those that were nonreeoverable. The court of appeals did not reach that argument, but instead upheld the award of attorney fees on the ground that Wasatch failed to marshal the evidence relied on by the trial court in awarding attorney fees in the first place. We agree with the court of appeals.

¶ 36 “[Attorney fees cannot be recovered unless provided for by statute or contract.” Collier v. Heinz, 827 P.2d 982, 983 (Utah Ct.App.1992) (referring to the rule as the “long-standing rule in Utah”). In the present case, Eggett brought claims under both the Employment Agreement and the Shareholder Agreement. Of the two contracts, only the Shareholder Agreement provided for recovery of attorney fees. Accordingly, fees pertaining to claims brought under the Shareholder Agreement are recoverable, while fees pertaining to claims brought under the Employment Agreement are not. In order to recover any attorney fees at all, the prevailing party must apportion or separate out the recoverable fees from the nonrecoverable ones. See Cottonwood Mall Co. v. Sine, 830 P.2d 266, 269-70 (Utah 1992).

¶ 37 Wasatch argues that Eggett failed to meet the apportionment requirement here and therefore “the attorney fee award must be set aside” as a matter of law. Wasatch argues that the court of appeals erred in basing its rejection of this legal argument on Wasatch’s failure to marshal the evidence. “[T]he marshaling requirement applies only to challenges of factual findings, not to conclusions of law.” Peirce v. Peirce, 2000 UT 7, ¶ 17 n. 4, 994 P.2d 193. Wasatch argues that since it was not challenging the sufficiency of evidence to support the award (a factual challenge), but rather was asserting that no award was permissible without the required apportionment (a legal challenge), the marshaling requirement is inapplicable and the court of appeals erred in applying it to reject Wasatch’s legal challenge to the fee award.

¶ 38 The trial court’s determination on this question was a factual one. It found that Eggett “made a proper and reasonable segregation between those claims to which he is entitled to an award of ... fees, and those claims to which he is not entitled to such an award.” To challenge that factual finding, Wasatch must “marshal the evidence in support of the [trial court’s] findings and then demonstrate that despite this evidence, the trial court’s findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous.” Young v. Young, 1999 UT 38, ¶ 15, 979 P.2d 338 (internal quotations omitted); see also Moon v. Moon, 1999 UT App 12, ¶ 24, 973 P.2d 431. The court of appeals correctly held that Wasatch failed to marshal the evidence the trial court relied upon in making its factual finding that Eggett properly apportioned recoverable attorney fees.

CONCLUSION

¶ 39 We affirm the court of appeals. The trial court did not abuse its discretion by admitting Eggett’s evidence regarding company book value under his claim for breach of the covenant of good faith and fair dealing, nor did it abuse its discretion by clarifying Special Verdict Question Number 5. Finally, the award of attorney fees was proper.

NEHRING, Justice,

concurring:

¶ 40 I concur in the Chief Justice’s opinion and write separately in an effort to avoid making more impenetrable the fog which has long enveloped our implied covenant of good faith and fair dealing jurisprudence. I feel a particular duty to express my views on this topic to ensure that this court’s opinion in Smith v. Grand Canyon Expeditions, 2003 UT 57, 84 P.3d 1154, which I authored, is not misread as an obituary for the implied covenant.

¶ 41 Both Smith and this case involve disputes over corporate valuation, and each featured a contract that provided that the valuation was to be conducted in accordance with generally accepted accounting principles (GAAP). In Smith, we held that the actions by the parties met the standards established by the contract and thus the implied covenant of good faith and fair dealing had no bearing on the matter. In this case, however, we have concluded that Mr. Eggett is entitled to show that Wasatch breached the implied covenant of good faith and fair dealing.

¶42 With these two holdings, this court confronts a direct challenge to our well-founded desire to bring consistency and predictability to the law. As the dissent ably reveals, the Chief Justice’s opinion is vulnerable to the charge that it fails to meet that challenge. After all, how could an express contract term setting out a clear valuation methodology fill all of the “gaps” in the understanding or expectations of the parties in Smith, but not here? How could compliance with GAAP extinguish the implied covenant in Smith, but have endured to yield a sizeable verdict for Mr. Eggett?

¶ 43 A simple, accurate, and incomplete answer is that the implied covenant is by its very nature a pliable doctrine. It is inherently amorphous and evades definitional precision. These traits place the implied covenant directly at odds with predictability of conduct, the most basic and cherished characteristic of the contracts which the implied covenant was created to serve. As one commentator observed, “While the varieties of good faith are not quite as infinite as those of i’eligious faith, it would be quite extraordinary if this protean concept were used in the same sense in all ... assorted instances.” Farnsworth, E. Allan, Good Faith Performance and Commercial Reasonableness Under the Uniform Commercial Code, 30 U. Chi. L.Rev. 666, 668 (1968).

¶ 44 However, this answer is unsatisfactory to many who share the view made evident in the dissent that the implied covenant can too easily turn away from being an ally of contract law and become its antagonist. This happens when courts mishandle the subtle but important distinction between invoking the implied covenant to compel a contracting party to honor the “agreed common purpose” and “justified expectations” of another party to the contract, Restatement Second of Contracts § 205 cmt. a (1979), and injecting it to “establish new, independent rights or duties not agreed upon by the parties” or to “nullify a right granted by a contract to one of the parties.” Brehany v. Nordstrom, 812 P.2d 49, 55 (Utah 1991).

¶ 45 The parties can reduce the risk that a court will remake their contract and award one party “benefits for which it did not bargain,” see infra ¶ 51 (quoting United States ex rel. Norbeck v. Basin Elec. Power Coop., 248 F.3d 781, 798 (8th Cir.2001)) by bargaining for terms that limit the exercise of unfettered discretion by one party or that otherwise clearly articulate the purposes and expectations of the parties. In short, the parties to a contract are best served when they fill their own gaps. Still, the use of a gap filler, like GAAP here and in Smith, does not ipso facto extinguish the implied covenant. Circumstances may exist which cause even carefully drawn limitations on discretionary performance to confound justifiable expectations. One such circumstance was present here: a course of dealing between the parties which could reasonably have been interpreted to restrict the acceptable use of GAAP in valuing Wasatch.

¶ 46 We have recognized that the course of dealings between contracting parties may be considered in determining the purpose, intentions, and expectations of the parties. Brown v. Moore, 973 P.2d 950, 954 (Utah 1998). Where a history of conduct relating to a contract term that has been interposed as a “gap filler” demonstrates that one party has used the contract provision to frustrate expectations grounded in that historical conduct, the implied covenant of good faith and fair dealing properly offers a remedy. The record here establishes that Wasatch and Mr. Eggett had developed a course of conduct with respect to the manner in which Wasatch booked disputed income received from certain customers. The selected method, a one-year holding period for suspense accounts, complied with GAAP, advanced Wasatch’s legitimate business interests, and carried with it implications for the valuation of the company. Wasatch’s shift to a two-year holding period defied explanation as a legitimate business decision and was clearly targeted at depressing the company’s value and Mr. Eggett’s compensation. Such a flaw in a “gap filling” contract term should not be beyond the reach of the law, and the court of appeals and Chief Justice Durham properly ratified the implied covenant of good faith and fair dealing as the appropriate legal tool to remedy the defect.

¶ 47 Justice PARRISH concurs in the concurring opinion of Justice NEHRING.

WILKINS, Justice,

concurring in part, dissenting in part:

¶48 I concur in section III, and dissent from sections I and II of the majority opinion. I would reverse the court of appeals’ affirmance of the trial court’s award of $135,671 to Eggett as book value for his shares in Wasatch.

¶ 49 As a matter of law, Eggett’s claim for a breach of the implied covenant of good faith and fair dealing cannot be premised on an adjusted measure of the book value of Wasatch because the parties agreed that the company’s book value would be determined with reference to the company’s audited financial statements, prepared in accordance with GAAP. The parties further agreed that that value would be “binding and conclusive upon the parties.” Because no claim for a breach of the covenant of good faith and fair dealing could be based on Wasatch’s choices, so long as those choices satisfied GAAP, the admission of evidence to prove such a claim was error. Given such a resolution, section II’s discussion of the trial court’s clarification of the jury’s verdict is unnecessary.

¶ 50 Recently, in Smith v. Grand Canyon Expeditions Co., 2003 UT 57, ¶ 22, 84 P.3d 1154, we noted that the covenant of good faith and fair dealing is an implied covenant that will not apply “[wjhere ... the express contract term defines and limits discretionary performance.” Although its application to a buy/sell agreement governed by GAAP was new, this court has previously recognized this principle. In Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991), we observed that the implied covenant of good faith and fair dealing “cannot be construed ... to establish new, independent rights or duties not agreed upon by the parties.” Proper application of this rule is demonstrated by the case of United States ex rel. Norbeck v. Basin Elec. Power Coop., 248 F.3d 781 (8th Cir.2001), wherein the Eighth Circuit, applying federal common law, was confronted with the application of the implied covenant of good faith and fair dealing to a contract term defined in part by GAAP. Id. at 794-97.

¶ 51 In Basin Electric, one dispute between the parties revolved around Basin’s amortization of certain costs over a ten-year period instead of the twenty-year period used in other contracts to which it was a party. Id. at 794. The amortization over ten years instead of twenty resulted in the other party to the contract paying an additional $3.6 million under the contract. Id. at 794-95. The contract mandated no specific amortization provision, but was instead governed by GAAP and Rural Utilities Service System of Accounts rules, neither of which were violated by choosing a shorter amortization period. Id. at 795. The Eighth Circuit reversed a portion of the district court’s judgment granted for a breach of the implied covenant of good faith and fair dealing, noting that the covenant “does not imply ‘an everflowing cornucopia of wished-for legal duties,’ ” and “does not impose a general requirement that a party act reasonably[;][r]ather, the covenant acts as a gap filler to deal with circumstances not contemplated by the parties at the time of contracting.” Id. at 796 (internal citations omitted). The court noted that applying the implied covenant would necessitate rewriting the contract to give one party “benefits for which it did not bargain.” Id. at 797-98. The majority in this case would do the same for Eggett.

¶ 52 The covenant ought not to be used to assess damages against Wasatch merely because it made certain choices allowed it under the Shareholder Agreement. The Shareholder Agreement defines the scope of Wasatch’s responsibility with regard to the book value of the company. The agreement provides that the company’s audited financial statement, so long as it comports with GAAP, will be the binding measure of book value. Neither party has argued that Wasatch’s audited financial statement was not prepared in accordance with GAAP. Thus, the bargained-for contract defines and limits Wasatch’s discretion in determining book value, and Wasatch exercised its discretion within the limits set by the parties. Evidence presented at trial indicates that the holding period for suspense accounts was changed from one to two years to bring Wasatch in line with the industry standard. Other evidence suggested that Eggett advocated the change before his departure. There is, quite simply, no gap to be filled by the implied covenant of good faith and fair dealing. This court ought not to deviate from the parties’ clearly expressed intention to allow and require valuation based on GAAP.

¶ 53 Associate Chief Justice DURRANT concurs in the concurring and dissenting opinion of Justice WILKINS.