author: DURHAM, Chief Justice:

text:
    2003 UT 17
    In the Matter of the ESTATE OF Almon J. FLAKE, Deceased. Marian R. Flake, Plaintiff and Appellant, v. Joel Flake, Defendant and Appellee.
    No. 20010478.
    Supreme Court of Utah.
    May 2, 2003.
    Rehearing Denied June 17, 2003.

      Matthew C. Barneck, Martha Knudson, Salt Lake City, for defendant.
    Loren D. Martin, Salt Lake City, for plaintiff.
   DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Decedent’s spouse, Marian Flake (Mrs. Flake), brought an action against the Almon J. Flake Family Trust, seeking enforcement of the trust dated September 22, 1987 (the 1987 Trust Agreement) and making numerous claims regarding her rights as a beneficiary. The 1987 Trust Agreement was purportedly modified or replaced by a subsequent trust document entitled Restatement of the Almon J. Flake Family Trust dated October 30, 1998 (the 1998 Restatement). The 1998 Restatement purported to change significantly many of Mrs. Flake’s benefits as outlined in the 1987 Trust Agreement. Prior to the filing of any action, the parties met to discuss a possible settlement. Joel Flake, as trustee (the trustee) filed a motion before trial to enforce the settlement agreement that he claimed was reached on April 14, 1999 (the 1999 Settlement Agreement).

¶ 2 The trial court addressed the issues in two phases. In the first phase, the court considered whether the parties had reached an enforceable settlement agreement before the action was filed. The court held that the parties had reached a valid settlement agreement on several issues, but that there was no mutual release of claims. The second phase considered Mrs. Flake’s claims of undue influence relating to the 1998 Restatement and the formation of JALCOM, L.L.C., a family limited liability company. The trustee filed a motion to dismiss, arguing that Mrs. Flake stated she had no evidence to offer and would rely solely on the documents at issue. The trial court granted the trustee’s motion to dismiss in part. The court concluded that the 1998 Restatement did not fully supercede the 1987 Trust Agreement, specifically holding that under the 1987 Trust Agreement Mrs. Flake was entitled to monthly support from the trust. The court also determined that Mrs. Flake was entitled to receive the decedent’s social security and retirement funds as outlined in the 1987 Trust Agreement.

¶ 3 Mrs. Flake appealed, arguing that the enforcement of an unexecuted agreement, the 1999 Settlement Agreement, constitutes reversible error. She also contends that she held certain rights under the trust which can only be relinquished by express waiver. The trustee filed a cross-appeal arguing, among several issues, that the 1998 Restatement did in fact supercede the 1987 Trust Agreement. The trustee, therefore, contends that the Trust is entitled to a reimbursement of the support payments previously paid to Mrs. Flake. We affirm the trial court’s granting of the trustee’s motion to dismiss, but reverse the finding that the 1998 Restatement did not effect a revocation of the trust. We find that the 1998 Restatement fully replaced and superceded the original 1987 Trust Agreement. Therefore, the terms of the 1998 Restatement and subsequent 1999 Settlement Agreement govern the disposition of the trust estate.

BACKGROUND

¶ 4 Almon J. Flake (Mr. Flake) and his first wife, Lois Flake, had five children. Mr. Flake’s first wife subsequently passed away. On September 22, 1987, Mr. Flake executed the 1987 Trust Agreement by which he created the “Almon J. Flake Family Trust.” Shortly thereafter, on October 5, 1987, Mr. Flake married Marian R. Flake. Article II of the 1987 Trust Agreement states that “[t]his trust is specifically designed for the use and benefit of the Undersigned Almon J. Flake, and spouse, for the lifetime of the Undersigned, then for the use and benefit of the Undersigned’s children, except as contained herein” (emphasis added). The 1987 Trust Agreement made “Special Provisions” for Mrs. Flake. Article VII of the 1987 Trust Agreement provides as follows:

SPECIAL PROVISIONS

Upon the death of the Undersigned the Trust shall care for the needs of MARIAN R. FLAKE including her living arrangements in the home of the Undersigned or other reasonable living quarters which may include a unit in the Flake duplex, at her discretion.
B. The furnishings of the Flake home shall be used by Marian until her death as needed.
C. Marian shall also enjoy Amon’s social security and all existing retirement funds.
F. Upon the death of Amon and Marian, all the remainder of this trust estate shall be distributed to the Flake children, share and share alike, per stirpes. THESE SPECIAL PROVISIONS SHALL TAKE PRECEDENCE OVER ANY AND ALL OTHERS OF THIS TRUST AGREEMENT.

¶ 5 The 1987 Trust Agreement also stated that the trust was revocable, and that Mr. Flake as settlor could amend certain portions of the trust, subject to the provisions of the trust language. Article XIII of the 1987 Trust Agreement:

Revocation and Amendment

A. As long as the Undersigned is alive, he reserves the right, without the consent or approval of any other, to amend, modify, revoke, or remove from this Trust the property that he has contributed, in whole or in part, including the principal and the present or past undisbursed income from such principal. (Emphasis added).

¶ 6 On October 30,1998, Mr. Flake executed a document entitled the “Restatement of the Amon J. Flake Family Trust” (the 1998 Restatement), which states that “Amon J. Flake hereby amends and restates in full the Amon J. Flake Family Trust dated September 22, 1987.” (emphasis added). In her brief, Mrs. Flake points out that Mr. Flake executed the 1998 Restatement during his final illness and within two weeks of his death. She also suggests that Mr. Flake’s children facilitated the changes he made, significantly reducing the extent of her interest in the 1987 Trust Agreement. However, we note that while Mrs. Flake originally asserted a claim of undue influence in this case, during the second phase of trial, she declined to pursue her claim. We are therefore precluded from considering anything that might be relevant to a claim of undue influence. Aticle IX of the 1998 Restatement makes the following provisions for Mrs. Flake:

Disposition at my Death

C. Vehicles. If Marian R. Flake survives me she shall be distributed the Cadillac.
D. Marian R. Flake. If Marian R. Flake survives me, the main part of my home (located at 604 East 540 North in Center-ville) shall be held in a separate trust as a life estate for her benefit. The trust shall pay the following costs associated with the property: property insurance, property taxes, electricity, heating fuel, water, and other city utilities. Marian R. Flake shall pay all other costs associated with the property including telephone charges and maintenance and upkeep costs. However, the Trustee shall have discretion to pay such part or all of the maintenance costs of the home that the Trustee feels is appropriate.

¶ 7 After Mr. Flake died on November 15, 1998, the parties disputed whether the 1987 Trust Agreement or the 1998 Restatement governed the disposition of the trust. The trustee’s position was that the 1998 Restatement had entirely replaced the 1987 Trust Agreement. Mrs. Flake, however, contended that she was entitled to certain rights under the original trust agreement which could only be relinquished through express waiver. The parties met on April 14, 1999 in order to resolve their dispute and to discuss a possible settlement agreement. Mrs. Flake later filed a claim seeking enforcement of the original 1987 Trust Agreement. Pending the result of the litigation, Mrs. Flake filed a lis pendens on property subject to the trust, and argued that the recording of the lis pendens was done in order to give constructive notice that the property was subject to litigation. The trustee contends that Mrs. Flake improperly filed the lien and failed to provide notice within thirty days after recordation as required under Utah Code Ann. sections 38-12-102 and 103. Appellee also argues that Mrs. Flake failed to release the lien within twenty days as required under Utah Code Ann. section 38-9-4. After a series of motions and cross-motions, the trial court granted the trustee’s motion to dismiss and ruled on the pending issue of the lis pendens.

STANDARD OF REVIEW

¶ 8 The validity of the trust is an issue of law, which we review for correctness. Groesbeck v. Groesbeck (In re Estate of Groesbeck), 935 P.2d 1255, 1257 (Utah 1997). The grant of a motion to dismiss is likewise a matter of law, which the appellate court reviews for correctness. Thimmes v. Utah State Univ., 2001 UT App 93, ¶ 4, 22 P.3d 257, 258.

ANALYSIS

¶ 9 The determinative questions on appeal are as follows: (1) whether the trial court erred in concluding that the 1998 Restatement did not fully supercede the 1987 Trust Agreement; (2) whether the trial court erred when it found that section 75-3-912 of the Utah Uniform Probate Code is not applicable to nonprobate transfers, such as trust administration in decedent’s estates, and therefore does not apply to the 1999 Agreement; (3) whether the trial court erred in failing to find that Mrs. Flake was estopped to make claims beyond the scope of the 1999 Settlement Agreement; (4) whether the trial court erred in failing to award attorneys’ fees and costs relating to the lis pendens; and (5) whether the court should direct removal of the trustee. We reverse the ruling of the trial court as to the first issue, and affirm regarding the remaining issues.

¶ 10 In granting the trustee’s motion to dismiss, the trial court found that the 1998 Restatement did not fully replace the 1987 Trust Agreement, and that the documents must be read together to determine the governing terms of the trust. We disagree, and hold that the 1987 Trust Agreement was entirely superceded by the 1998 Restatement. We further conclude that Mrs. Flake and the trustee reached an enforceable oral settlement agreement at a meeting held on April 14, 1999. However, the 1999 Settlement Agreement did not resolve all the issues between the parties, and thus did not include a release of claims nor did it preclude Mrs. Flake from asserting other claims against the trust to the extent they (1) are provided for in the 1998 Restatement and (2) were not discussed and agreed upon at the April 14,1999 settlement meeting.

I. THE TERMS OF THE 1987 TRUST AGREEMENT

¶ 11 A trust is an arrangement for the ownership of property. The nature of the arrangement is such that the legal title of the property is held by the trustee, but the benefit and enjoyment of the property resides with the beneficiaries. It is well settled that

[a] trust ... is a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held [the trustee] to equitable duties to deal with the property for the benefit of another person [the beneficiary], which arises as a result of a manifestation [by the settlor, or trustor] of an intention to create it.

In re Estate of West, 948 P.2d 351, 353 (Utah 1997) (citing Restatement (Second) of Trusts § 2 (1959)). There must be an intent by the settlor to confer a beneficial interest in the property in some other person. To create an inter vivos trust,

[a] settlor must have an intent to create a presently enforceable trust, ... the trust property must be clearly specified and set aside, ... and the essential terms of the trust must be clear enough for the court to enforce the equitable duties that are the sine qua non of a trust relationship.

Sundquist v. Sundquist, 639 P.2d 181, 183-84 (Utah 1981) (citations omitted).

¶ 12 “A trust is a form of ownership in which the legal title to property is vested in a trustee, who has equitable duties to hold and manage it for the benefit of beneficiaries.” Cont'l Bank & Trust Co. v. Country Club Mobile Estates, Ltd., 632 P.2d 869, 872 (Utah 1981)(citing Restatement (Second) of Trusts § 2 (1959)). The trustee has exclusive control of the trust property, subject only to the limitations imposed by law or the trust instrument, and “once the settlor has created the trust he is no longer the owner of the trust property and has only such ability to deal with it as is expressly reserved to him in the trust instrument.” Id. (citation omitted). A trust must have an identifiable beneficiary who is capable of enforcing the equitable duties of the trustee. The transfer of property interests to the beneficiaries “cannot be taken from them except in accordance with a provision of the trust instrument.... ” George G. Bogert & George T. Bogert, Trusts & Trustees § 998 (2d ed. rev.1983).

A. Revocation

¶ 13 Absent fraud or mistake, a settlor “has the power to modify a trust only if and to the extent that such a power was reserved by the terms of the trust.” Kline v. Utah Dep’t of Health, 776 P.2d 57, 61 (Utah Ct.App.1989); see also Restatement (Second) of Trusts § 331. The same rule applies to a settlor’s power to revoke a trust. Restatement (Second) of Trusts § 331. Ordinarily, if a power to modify is subject to no restrictions, then a reserved power to amend or modify includes the power to revoke. Id. cmt. h. However, the settlor cannot modify the trust if, by the terms of the trust, he did not reserve a power of modification. Id. Likewise, “[i]f the settlor reserves a power to modify the trust only in a particular manner or under particular circumstances, he can modify the trust only in that manner or under those circumstances.” Id. cmt. d. However, as is the ease with the 1987 Trust Agreement, if the settlor does not specify the method of modification, then “the power may be exercised by any method which sufficiently manifests his intention to modify the trust.” Id. cmt. c. In interpreting the terms of a trust, the proper focus of inquiry is the settlor’s intent. Leggroan v. Zion’s Sav. Bank & Trust Co., 120 Utah 93, 99, 232 P.2d 746, 749 (1951).

¶ 14 In Article XIII of the 1987 Trust Agreement, Mr. Flake expressly reserved both the power to modify and the power to revoke the trust created in 1987. The terms of the 1987 Trust Agreement state that the “Undersigned” reserves the right “to amend, modify, [or] revoke” the Trust, and thus it is clear that the settlor, Mr. Flake, reserved the right to amend, modify, or revoke.

Revocation and Amendment

A. As long as the Undersigned is alive, he reserves the right, without the consent or approval of any other, to amend, modify, revoke, or remove from this Trust the property that he has contributed, in whole or in part, including the principal and the present or past undisbursed income from such principal.

The 1998 Restatement clearly states that it amends the 1987 Trust Agreement.

¶ 15 We agree with the trial court’s conclusion that the 1998 Restatement, absent an explicit revocation, is construed only as a modification of the 1987 Trust Agreement. However, we find that although the 1998 Restatement amended, or modified, the 1987 Trust Agreement and did not revoke it in its entirety, the terms and contents of the 1998 Restatement did fully supercede all of the operative provisions of the original 1987 Trust Agreement.

B. Beneficiary Interests

¶ 16 This court recently held in Banks v. Means, 2002 UT 65, ¶ 14, 52 P.3d 1190, that a trust that specified revocation of a vested beneficiary interest through divestiture could only divest those beneficiary interests through a complete revocation of the trust. “Mrs. Banks reserved the power to revoke, modify, or amend the trust in whole or in part,” and “limited that power in [a subsequent section] with regard to the beneficiaries.” Banks, 2002 UT 65 at ¶ 12, 52 P.3d 1190. “[A] complete revocation [or termination] was required to divest the beneficiaries of their vested interest.” Id. The appellant in Banks relied on Groesbeck, 935 P.2d 1255, arguing that the limiting language merely proved that the trust was not illusory and did not restrict the grantor’s right to divest the beneficiaries of their vested interests. The court in Groesbeck held that a reservation of the power to revoke does not make a trust invalid. Id. at 1257. However, in Banks, this court noted that Mrs. Banks reserved the right to amend, modify, or revoke the trust, specified how such changes were to be accomplished, and created vested beneficiary interests that could be divested only through a complete revocation or termination of the trust. Banks, 2002 UT 65 at ¶ 14, 52 P.3d 1190.

¶ 17 As in Banks, Mr. Flake reserved the right “to amend, modify, [or] revoke” the trust and later stated that the vested beneficiary interests shall continue until revocation or termination of the Trust other than by death. Here, Article XIV of the 1987 Trust Agreement states as follows:

Vested Interest of Beneficiaries
The interest of the beneficiaries is a present vested interest which shall continue until the Trust is revoked or terminated other than by death.

The 1987 Trust Agreement language can be distinguished from the language used in Banks. The limiting language in Banks was subject to a beneficial interest that was to be revoked or terminated through a complete divestiture of that beneficial interest. The relevant language from the trust in Banks is as follows:

Article III

AMENDMENT, REVOCATION AND ADDITIONS TO THE TRUST

3.2 Interests of the Beneficiaries. The interests of the beneficiaries are presently vested interests subject to divestment which shall continue until this Trust is revoked or terminated other than by death. (Emphasis added).

Banks, 2002 UT 65 at ¶ 4, 52 P.3d 1190. This language at issue lacks any reference to a complete divestiture. The beneficial interest of Mrs. Flake was merely amended, and not completely divested as was the case in Banks. The dispositive issue in the present case is whether there was a complete divestiture of a beneficial interest as in Banks, or whether there was simply a change in the quality, or scope, of the beneficial interest. We held in Banks that revocation was required when terminating a vested beneficial interest. 2002 UT 65 at ¶ 14, 52 P.3d 1190. Here, we find that there is no requirement of revocation where the beneficial interest is simply modified or amended but not terminated. Therefore, Mrs. Flake’s beneficial interest, as amended, was completely outlined in the 1998 Restatement, inasmuch as the 1998 Restatement contained all of the operative provisions of the Almon J. Flake Family Trust. The purpose and primary effect of Article XIV in the 1987 Trust Agreement is to save the Trust from the doctrine of merger and to prove that the Trust is not illusory.

II. THE 1998 RESTATEMENT

¶ 18 We next examine whether the 1998 Restatement complied with the terms of the original trust and either (1) effected a revocation of the 1987 Trust Agreement or (2) was solely a modification as an amendment to the 1987 Trust Agreement.

¶ 19 The question concerns the effect and disposition of a “restated” trust agreement. The trial court held that absent an express revocation, the 1998 Restatement did not fully replace the 1987 Trust Agreement, and that the documents therefore must be read together to determine the governing terms of the trust. We disagree, and hold that the 1998 Restatement did, in fact, fully supercede the 1987 Trust Agreement.

¶ 20 The meaning of the term “restate” as it applies to an inter vivos trust document has not been established in Utah. We therefore look to other areas of trust law and the law of other states for guidance. In the law of business trusts, the meaning of a “restated” trust has been defined by statute in several states. These statutes address the meaning of a restated trust as it applies to various forms of corporate governance. For example, in Nevada “a certificate of trust may be restated by integrating into a single instrument all the provisions of the original certificate [or trust instrument], and all amendments to the certificate, which are then in effect or are to be made by the restatement.” (Emphasis added). Nev.Rev. Stat. 88A.220(2) (2002); see also Del.Code Ann. _ 12 § 3810(c)(1) (2002); S.D. Codified Laws §§ 47-14A-45 (2002). Thus, state legislatures in some states have codified the meaning of a restated business trust, providing that a trust may be restated by integrating into a single instrument all of the operative provisions of the trust.

¶ 21 In the Utah Revised Limited Liability Company Act (the Act), the Utah legislature addressed, in another context, the meaning of the term “restatement.” Utah Code Ann. § 48-2c-409. The Act states that “[a] company may integrate into a single document all of the provisions of its articles of organization and amendments thereto, and it may ... further amend its articles of organization, by adopting restated or amended and restated articles of organization.” Id. The Act further clarifies that a restated document that not only restates and integrates the operative provisions but that also amends the operative provisions shall so state with the appropriate language. Id. § 48-2c-409(2), (3). “If the restated articles only restate and integrate, and do not further amend the provisions of the articles of organization as previously amended or supplemented, and there is no discrepancy between those provisions and the provisions of the restated articles, they must so state.” Id. § 48-2c-409(4)(b).

¶22 In this case, the 1998 Restatement was titled a “Restatement” and declared that it “amend[ed] and restat[ed] in full ” (emphasis added) the 1987 Trust Agreement. Although it did not detail the provisions of the trust that were specifically amended, as a restatement it merged all of the operative provisions of the 1987 Trust Agreement together with amendments in a single instrument, and therefore superceded the 1987 Trust Agreement. The clear and unambiguous language of the 1998 Restatement demonstrated that it was intended to supplant the terms of the 1987 Trust Agreement with amended and restated terms. The 1998 Restatement unambiguously references the “Al-mon J. Flake Family Trust dated September 22, 1987” as “amend[ed] and restate[d] in full,” and therefore reflects the settlor’s intent to supplant the 1987 Trust Agreement. See Restatement (Second) Trusts § 331, cmt. c (stating that if the settlor reserves a power to modify or revoke the trust without specifying the method of modification, the power can be exercised in any manner which manifests the intent of the settlor to modify). In particular, the 1987 Trust Agreement provisions that provide for the “needs of MARIAN R. FLAKE” and which state that “Marian shall also enjoy Almon’s Social Security and all existing retirement funds” were superceded due to their omission from the 1998 Restatement. Mrs. Flake is entitled only to what was provided for in the operative provisions of the 1998 Restatement.

III. THE 1999 SETTLEMENT AGREEMENT

¶ 23 On April 14,1999, prior to filing any claims, the parties met to discuss the possibility of a settlement agreement. The 1999 Settlement Agreement confirmed the distribution of the Cadillac to Mrs. Flake, as outlined in the 1998 Restatement. It was also agreed that Mrs. Flake would be the beneficiary of the life estate as outlined in the 1998 Restatement. The trust agreed to pay certain specified debts, and Mrs. Flake agreed to immediately close the accounts giving rise to the debts. Provisions concerning the disposition of additional assets were also outlined in the 1999 Settlement Agreement, including a provision releasing the trust from any other claim that Mrs. Flake may have been able to make under the 1987 Trust Agreement. Since family settlement agreements are “favorites of the law,” it is the general policy to encourage these types of agreements. In re Estate of Grimm, 784 P.2d 1238, 1243 (Utah Ct.App.1989) (“it is said that the law looks with favor upon an agreement of compromise among members of a family_” (quotations and citations omitted)).

A. Oral Agreements

¶ 24 Mrs. Flake contends that the 1999 Settlement Agreement, as an oral agreement with testamentary effect, is unenforceable and is subject to section 75-3-912 of the Utah Code, which provides as follows:

Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amount to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement, subject to his obligation to administer the estate for the benefit of creditors, to pay taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents’ estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing contained in this section relieves trustees of any duties owed to beneficiaries of trusts.

Utah Code Ann. § 75-3-912 (emphasis added). Mrs. Flake argues that the legislative history, official text, and comments, indicate that the Utah Probate Code was designed to establish uniform rules to govern all testamentary documents, including inter vivos trusts, and thus section 75-3-912 should apply to trusts as well as to wills.

¶ 25 When faced with a question of statutory construction, and in attempting to determine legislative intent, this court first looks to the plain language of the statute. State v. Martinez, 2002 UT 80, ¶ 12, 52 P.3d 1276; Stephens v. Bonneville Travel, Inc., 935 P.2d 518, 520 (Utah 1997); Savage Indus. v. Utah State Tax Comm’n, 811 P.2d 664, 671 (Utah 1991). In construing a statute, we assume that “each term in the statute was used advisedly; thus the statutory words are read literally, unless such a reading is unreasonably confused or inoperable.” Id. at 670. “Only if we find some ambiguity [in the statute’s plain language] need we look further,” Schurtz v. BMW of N. Am., 814 P.2d 1108, 1112 (Utah 1991), and only then “need we seek guidance from the legislative history and relevant policy considerations.” World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994).

¶ 26 We turn to the specific language of the statute, which states that “competent successors may agree among themselves to alter the interests, shares, or amount to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions.” Utah Code Ann. § 75-3-912 (emphasis added). Thus, according to the plain language of the statute of the Utah Probate Code, the requirement of a written contract to alter beneficiary interests applies only to interests created by will or by the laws of intestacy. Mrs. Flake suggests that the statute was poorly drafted and that the drafters intended, but failed, to make the necessary revisions to include agreements affecting interests created by trusts. She may be correct, but there is no evidence thereof in the statute. Its plain terms limit the requirement of a written contract in altering beneficiary interests to a will or the laws of intestacy. We will not look beyond the language to divine legislative intent; the language is clear and unambiguous. Stephens, 935 P.2d at 522 (citing Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989)). A written agreement is not required to alter interests created by an inter vivos trust.

¶ 27 The issue of whether an oral contract or agreement exists presents questions of both law and fact. “Whether a contract has been formed is ultimately a conclusion of law, but that ordinarily depends on the resolution of subsidiary issues of fact.” Nunley v. Westates Casing Serv., Inc., 1999 UT 100, ¶ 17, 989 P.2d 1077, 1083 (citing O’Hara v. Hall, 628 P.2d 1289, 1290-91 (Utah 1981)). While we do not defer to the trial court’s legal conclusions in reviewing them for correctness, we do defer to its factual findings, and will not set them aside unless they are clearly erroneous. See Reliance Ins. Co. v. Utah Dep’t of Transp., 858 P.2d 1363, 1366 (Utah 1993). A trial court’s finding of fact is not clearly erroneous unless it is against the clear weight of the evidence or we reach a definite and clear conclusion that a mistake has been made. See Dep’t of Human Serv. v. Irizawy, 945 P.2d 676, 682 (Utah 1997).

¶ 28 The April 14, 1999 meeting resulted in an enforceable oral agreement that was later memorialized by a writing, the 1999 Settlement Agreement. The terms and conditions of an oral agreement must be sufficiently definite to allow it to be enforced. See Brown’s Shoe Fit Co. v. Olch, 955 P.2d 357, 363 (Utah Ct.App.1998). In determining whether the parties created an enforceable contract, a court should consider all preliminary negotiations, offers, and counteroffers and interpret the various expressions of the parties for the purpose of deciding whether the parties reached agreement on complete and definite terms. See 1 Joseph M. Perillo, Corbin on Contracts § 2.1, at 101 (rev. ed.1993). Based on the actions of the parties prior to and after the April 14, 1999 settlement meeting, we conclude that the trial court correctly ruled that the parties entered into an enforceable settlement agreement. The parties were each accompanied by legal representatives at the meeting. The parties agreed to essential terms regarding the life estate, distribution of the Cadillac, payment of outstanding creditors, ownership in the life insurance policies and funeral plan, disposition of the tax proceeds, use and condition of a barn, as well as additional items of personal property. “An agreement cannot be enforced if its terms are indefinite or demonstrate that there was no intent to contract.” Richard Barton Enters. v. Tsern, 928 P.2d 868, 373 (Utah 1996) (citing Valcarce v. Bitters, 12 Utah 2d 61, 63, 362 P.2d 427, 428 (1961)); Perillo, supra § 4.3 at 569. Here, the agreed terms were specific and definite, and the facts found by the trial court demonstrate an intent by the parties to comply with the terms of the 1999 Settlement Agreement.

B. Waiver

¶29 Mrs. Flake contends that the 1999 Settlement Agreement was an unexe-cuted agreement and as such is unenforceable. As we stated in the foregoing section, the 1999 Settlement Agreement was a valid and enforceable oral settlement agreement. Mrs. Flake further contends that the 1987 Trust Agreement and the 1998 Restatement granted certain rights that could only be relinquished through express waiver. “Waiver is an intentional relinquishment of a known right. ‘It must be distinctly made, although it may be express or implied.’” Interwest Const. v. Palmer, 886 P.2d 92, 98 (Utah Ct.App.1994) (citing Webb v. R.O.A. Gen., Inc., 773 P.2d 834, 839 (Utah Ct.App.1989)). With respect to waiver, this court has often used the following formulation:

A waiver is the intentional relinquishment of a known right. To constitute a waiver, there must be an existing right, benefit, or advantage, a knowledge of its existence, and an intention to relinquish it. [The relinquishment] must be distinctly made, although it may be express or implied.

Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935 (Utah 1993) (citing Phoenix Ins. v. Heath, 90 Utah 187, 194, 61 P.2d 308, 311-12 (1936)).

¶30 Thus, we have previously stated that a “[w]aiver is an intentional relinquishment of a known right.” Interwest, 886 P.2d at 98. To constitute a waiver, there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it. Mrs. Flake argues that the waiver “ ‘must be distinctly made, although it may be express or implied.’” Hunter v. Hunter, 669 P.2d 430, 432 (Utah 1983) (quoting Am. Sav. Loan Ass’n v. Blomquist, 21 Utah 2d 289, 292, 445 P.2d 1, 3 (1968)). While it is true that a waiver, or the relinquishment of a known right, must be distinctly made, it still may be express or implied. Mrs. Flake relies on language in Hunter, 669 P.2d at 432, which sought to elaborate restrietively on what specific facts might be necessary to support a finding of intent. Hunter stated that “[t]o constitute waiver, one’s actions or conduct must be distinctly made, must evince in some unequivocal manner an intent to waive, and must be inconsistent with any other intent.” Id. The language in Hunter, stating the need for an unequivocal intent to waive a known right, was later addressed by this court. In Soter’s, 857 P.2d at 942, this court reiterated that the legal standard of Phoenix is the correct standard required to establish waiver. “A waiver is the intentional relinquishment of a known right. To constitute waiver, there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it.” Soter’s, 857 P.2d at 942 (citing Phoenix, 61 P.2d at 311-12). Soter’s further clarified that the intent to relinquish a right must be distinct, and this determination is made by looking at the totality of the circumstances. Soter’s, 857 P.2d at 942. The court noted that in Utah, a distinct intent to waive may only be shown by a preponderance of the evidence. Id. at 942, n. 6.

¶ 31 “Waiver of a contractual right occurs when a party to a contract intentionally acts in a manner inconsistent with its contractual rights, and, as a result, prejudice accrues to the opposing party or parties to the contract.” Interwest Const., 886 P.2d at 98; see also Cooper v. Foresters Underwriters, Inc., 2 Utah 2d 373, 376-77, 275 P.2d 675, 677 (1954) (holding defendant did not waive the right to enforce a contract because defendant’s actions were not inconsistent with terms of contract nor did defendant induce belief that it did not intend to enforce terms of contract). Here, the evidence shows that the actions of Mrs. Flake were intended to relinquish known rights. She agreed to assign ownership to the trust of the life insurance policy as well as the funeral plan, and acted accordingly. She agreed to close the outstanding credit accounts in com-plianee with the Trust’s agreement to pay those outstanding debts, and again acted accordingly. Mrs. Flake agreed to and received the distribution of the Cadillac. She agreed to the terms of the life estate as outlined in the 1998 Restatement. When looking to the totality of the circumstances, Mrs. Flake’s actions were consistent with the terms of the 1999 Settlement Agreement, and thus her actions satisfy the elements of waiver.

IV. LIS PENDENS

¶ 32 The trustee argues on cross-appeal that the trial court erred in failing to award fees and costs resulting from Mrs. Flake’s failure to remove a lis pendens from certain trust property. Under Utah Code Ann. sections 38-9-4 and 38-12-102, 103, appellee argues that Mrs. Flake filed a lien and failed to provide notice within thirty days after recordation as required under Utah Code Ann. § 38-12-102. Appellee argues that this subjects Mrs. Flake to liability of “$1,000 or for treble actual damages,” whichever is greater, and for reasonable attorney fees and costs. Utah Code Ann. section 38-12-103(a) states that “[a] person who fails to meet the notice requirements” is “precluded from receiving an award of costs and attorney’s fees from the person against whom a notice of lien has been filed.” However, Utah Code Ann. section 38-12-103(b) provides that “[s]ubsection (l)(a),” a person’s failure to meet the notice requirements, “does not create a right to costs and attorneys’ fees.”

¶ 33 Mrs. Flake argued that the lis pen-dens was recorded to give constructive notice that the property was the subject of litigation. The trial court found that based on Mrs. Flake’s withdrawal of her claims of undue influence all lis pendens filed on property in this ease should be released. The trial court considered the trustee’s argument and declined to award the statutory penalty for failing to give notice. Utah Code Ann. section 38-12-103(2) provides for penalties to the lien claimant for noncompliance with the notice requirements or for a willful refusal to release the lien. After the trial court’s finding that all lis pendens should be released, Mrs. Flake filed a Motion for Stay Pending Appeal and Further Order of the Court. The trial court issued its final Order Dissolving Lis Pendens on July 11, 2001. During the pendency of the litigation, the lis pendens did not create any actual damages to the litigants. The lis pendens did not cloud title because, other than an attempt to refinance, there was no attempt to transfer or convey the underlying property. Our review of the record does not indicate that the trial court’s finding was clearly erroneous. We agree with the trial court that there was no willful refusal to release the notice of lien, and therefore that Mrs. Flake should not have been ordered to pay damages.

CONCLUSION

¶ 34 For the foregoing reasons, we affirm the trial court’s ruling granting the motion to dismiss, but reverse as to the enforceability of the original 1987 Trust Agreement. We find that the 1998 Restatement and the 1999 Settlement Agreement govern the disposition of the estate of Almon J. Flake. Accordingly, Mrs. Flake is entitled to the following distributions: (i) the life estate as outlined in the 1998 Restatement; (ii) the distribution of the Cadillac; (iii) the payment of the commercial debts as outlined in the 1999 Settlement Agreement; (iv) the right to the funeral plan maintained by the trust; and (v) the right to the upper level of the barn as a storage facility. Mrs. Flake is not entitled to monthly support from the trust, nor is she entitled to receive the decedent’s social security, according to the 1998 Restatement, and retirement funds as outlined in the 1987 Trust Agreement.

¶ 35 The trustee contends that the trust is entitled to repayment of the support payments paid through the time of trial and post-trial. In light of our decision, this case is remanded for a determination of the amount of payments, if any, that Mrs. Flake must repay to the trust. See Capital Transit Co. v. Pub. Util. Comm’n, 93 U.S.App.D.C. 194, 214, 213 F.2d 176, 195, (D.C.Cir.1954) (citing Cox v. Dixie Power Co., 81 Utah 94, 16 P.2d 916 (Utah 1932)). “The trial court has power to order restitution in an independent suit, or upon a motion filed in the original proceeding[,]” id. (citation omitted), and we believe that the trial court should undertake the disposition of the trustee’s claims here, as was observed in Capital Transit Co.,

The disposition of a claim for restitution may well involve issues of fact and law, conflicting equities, and problems of legal and administrative policy. These can best be dealt with and disposed of initially by the [trial court]....

213 F.2d 176 at 196. We agree also with the comment that,

“In view of the ruling of the Supreme Court in Atlantic Coast Line R. Co. v. Florida [295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451 (1935)] that restitution upon the reversal of a judgment ‘is not of mere right. It is ex gratia, resting in the exercise of a sound discretion....’ ”

Id. at 196 (citations omitted). Thus, it is appropriate for the trial court to consider this claim in the first instance.

¶ 36 Associate Chief Justice DURRANT, Justice RUSSON, Justice WILKINS, and Judge GREENWOOD concur in Chief Justice DURHAM’S opinion.

¶ 37 Having recused himself, Justice HOWE does not participate herein; Court of Appeals Judge PAMELA T. GREENWOOD sat.

      . The trustee argues that to hold that a vested interest cannot be revoked or that the vested beneficiary assets cannot be modified is to nullify thousands of outstanding trust agreements. However, we do not hold that a vested beneficiary interest can never be revoked, but only that the revocation is subject to the terms of the individual trust agreement. Here, the trust agreement specifically states that the vested beneficiary interests can only be divested or revoked through a complete revocation or termination of the Trust.

      . In Groesbeck, we held that a revocable trust can be created, without being deemed illusory, as long as title to the property passes to the trustee and vested interests are created in the beneficiaries, even if these interests are subject to divestiture. 935 P.2d at 1257-58 (citing Horn v. First Sec. Bank of Utah, N.A., 548 P.2d 1265, 1267 (Utah 1976)). The relative Trust language in In re Estate of Groesbeck specified that “[t]he interest of the beneficiaries is a present interest which shall continue until this Trust is revoked or terminated other than by death.” 935 P.2d at 1258. The reservation of a power to amend, modify, or revoke does not make a trust invalid or incom-píete. See Restatement (Second) of Trusts § 331, cmt. j. As in In re Estate of Groesbeck, the vested beneficiary interests are subject to divestiture through operation of the specific provisions of the trust, namely the reserved power to amend, modify, or revoke.

      . We do not intend to imply that a trust may only be restated if it has been expressly authorized by statute; we merely look to these various statutes to clarify the meaning of the terms "restated” and "restatement” in the 1998 Restatement Agreement.

      . We are at a loss to understand this particular provision, inasmuch as social security benefits are determined by the Social Security Administration and are not subject to allocation by trust documents.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2003 UT App 152
    Huey L. DEPEW, Plaintiff and Appellant, v. Denton C. SULLIVAN, Defendant and Appellee.
    No. 20010242-CA.
    Court of Appeals of Utah.
    May 22, 2003.

      Aaron J. Prisbrey, St. George, for Appellant.
    Paul H. Matthews, Paul H. Matthews & Associates, PC, Salt Lake City, for Appellee.
    Before BILLINGS, Associate Presiding Judge, and GREENWOOD and ORME, JJ.
   OPINION

ORME, Judge:

¶ 1 Plaintiff Huey Depew sued defendant Denton Sullivan to recover for injuries he sustained when their vehicles collided in a traffic accident. The jury returned a verdict for Defendant, and Plaintiff appealed. Because we hold that the trial court erred in restricting the scope of voir dire during jury selection because of religious considerations, we reverse and remand for a new trial.

I. BACKGROUND

¶ 2 Plaintiff and Defendant were involved in an accident in Washington County. Plaintiff was driving his motorcycle down a slightly sloped street when Defendant, not seeing Plaintiff, turned his truck left in front of Plaintiff. Plaintiff hit his brakes and skidded approximately forty-one feet. He then jumped off his motorcycle, which was still moving, and landed about twenty feet in front of Defendant’s truck. The motorcycle continued to slide on its side and collided with the truck near the truck’s rear tire. The motorcycle then slid an additional forty-eight feet. Plaintiff injured his arm as a result of the accident, and he sued Defendant to recover for his injuries and lost wages.

¶ 3 At one point during discovery, Defendant requested from Plaintiff medical bills, tax returns, and other documents and information. Ten months later, having not received some of the documents and information, Defendant filed a motion to compel discoveiy, which the trial court eventually granted. When Plaintiff still failed to produce the documents, the court awarded sanctions to Defendant, ordering Plaintiff and his counsel to pay Defendant the attorney fees incurred in bringing the motion.

¶ 4 Meanwhile, Defendant departed the state to serve a two-year term as a missionary for the Church of Jesus Christ of Latter-day Saints (the Church) in Pennsylvania. Consequently, Defendant was absent from trial. However, the attorneys deposed him prior to his departure, and Defendant’s attorney submitted into evidence a videotaped copy of the deposition.

¶ 5 During jury selection proceedings, Plaintiffs attorney informed the judge: “[0]ne of the issues has to do with the fact [Defendant] is on an LDS mission [i.e., a mission for the Church] and I wanted to ask the jury some questions as to whether they do have children on missions.” Categorizing this proposed question as one about religious affiliation, the judge denied the request, stating that “religious affiliation has nothing to do with jury service.” The judge put to the venire panel the following substitute question: “Would the fact that ... the defendant ] is on a religious mission at the present time give you any problem in applying the facts in the law as you find it from the evidence in this case?” When all of the prospective jurors answered in the negative, the judge moved on to the next question.

¶ 6 During trial, Defendant proposed to call Officer Stacy Richan to testify as an expert witness regarding Plaintiffs precollision speed. Officer Richan was the police officer who had investigated the collision on the day it occurred, at which time he measured Plaintiffs motorcycle skid mark to be forty-one feet long. He had extensive training and experience in accident reconstruction, and although he had not been trained in motorcycle accident reconstruction at the time of the collision, he had since received some training in that area. He was prepared to testify that based on the length of the skid mark, Plaintiff must have been traveling between the speeds of 40.93 mph and 46.08 mph just prior to the collision. Plaintiff objected to the testimony, arguing that Officer Richan’s calculation was based upon the unverifiable assumption that both motorcycle wheels — and not just one wheel — had skidded the entire forty-one feet. The trial court overruled Plaintiffs objection and allowed Officer Richan to testify.

¶ 7 At the conclusion of trial, Plaintiff moved for a directed verdict against Defendant on the issue of negligence, which the trial court denied. The jury deliberated and then returned a verdict in favor of Defendant, placing one hundred percent of the fault for the collision on Plaintiff and no fault on Defendant. The trial court entered judgment in Defendant’s favor and ordered Plaintiff to reimburse Defendant “all taxable costs pursuant to Rule 54[ (d)] of the Utah Rules of Civil Procedure.” Defendant subsequently submitted a memorandum of costs, which stated that his total costs — all related to depositions used at trial — amounted to $3,085.05. The trial court ordered Plaintiff to pay that amount to Defendant.

¶ 8 Plaintiff moved for a new trial on the ground that “[t]here is clearly insufficient evidence to justify the verdict and finding of no fault on the part of [Defendant].” The trial court denied the motion.

¶ 9 Plaintiff now appeals and claims that the trial court erred when it imposed discovery sanctions against Plaintiffs counsel, denied Plaintiffs request at voir dire to ask prospective jurors questions about their close familial associations with missionaries, allowed Officer Richan to testify at trial as an expert witness, awarded Defendant costs for depositions, and refused either to direct a verdict against Defendant or to grant a new trial. We reverse the judgment against Plaintiff and remand for a new trial.

II. VOIR DIRE

A. Standard of Review and General Principles Regarding Voir Dire

¶ 10 “We review challenges to the trial court’s management of jury voir dire under an abuse of discretion standard. Generally, the trial court is afforded broad discretion in conducting voir dire, ‘but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors.’ ” Barrett v. Peterson, 868 P.2d 96, 98 (Utah Ct.App.1993) (quoting State v. Hall, 797 P.2d 470, 472 (Utah Ct.App.), cert. denied, 804 P.2d 1232 (Utah 1990)) (other citations omitted).

¶ 11 Due to the strong interest in enabling parties “to elicit necessary information for ferreting out bias,” State v. Saunders, 1999 UT 59,¶ 34, 992 P.2d 951, a trial court’s

discretion is most broad when it is exercised with respect to questions that have no apparent link to any potential bias. However, the trial judge’s discretion narrows to the extent that questions do have some possible link to possible bias, and when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears. The trial court must allow such inquiries.

Id. at ¶ 43.

¶ 12 The Utah Supreme Court has instructed “trial judges to take care to adequately and completely probe jurors on all possible issues of bias.” State v. James, 819 P.2d 781, 798 (Utah 1991). The purpose for this probing is to facilitate “both the detection of actual bias and the collection of data to permit informed exercise of the peremptory challenge.” State v. Taylor, 664 P.2d 439, 447 (Utah 1983) (citations omitted). “All that is necessary for a voir dire question to be appropriate is that it allow ‘[a party] to exercise his peremptory challenges more intelligently.’” State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (quoting State v. Ball, 685 P.2d 1055, 1060 (Utah 1984)). Accord Saunders, 1999 UT 59 at ¶ 34, 992 P.2d 951.

B. Voir Dire Inquiry Regarding Religion

¶ 13 Despite the rather broad permissible scope of voir dire inquiry, limitations exist. The Utah Constitution provides that no person “shall ... be incompetent as a ... juror on account of religious belief or the absence thereof.” Utah Const, art. I, § 4. See Utah Code Ann. § 78-46-3 (2002) (“A citizen shall not be excluded or exempt from jury service on account of ... religion[.]”). Accordingly, absent the possibility of actual bias stemming from religious beliefs, it is ordinarily inappropriate to inquire into veni-re members’ religious beliefs during voir dire. See Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758 P.2d 929, 933 n. 2 (Utah Ct.App.) (stating that “[t]he religious beliefs of the prospective jurors are not directly related to the subject matter of this suit, and hence could not properly be examined during voir dire”), cert. denied, 773 P.2d 45 (Utah 1988). See also Yarborough v. United States, 230 F.2d 56, 63 (4th Cir.) (holding that trial court properly refused to ask questions about religious affiliation when “[n]o matter of any religious significance whatever was involved in the case” and there was “nothing to show that [the appellant] belonged to any religious sect”), cert. denied, 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487 (1956); United States v. Daily, 139 F.2d 7, 9 (7th Cir.1943) (“We agree with the trial court that the defendant’s religion and whether or not he was a minister regularly ordained by his creed or sect were not a matter that was in issue before the court, and it was not proper to inquire of the venire about its views as to an issue that was foreign to the issues for trial.”). Cf. State v. Ball, 685 P.2d 1055, 1060 (Utah 1984) (approving a question about religious beliefs because such beliefs were related to the ease but prohibiting attorneys at voir dire from “conducting] an inquisition into the private beliefs and experiences of a venireman”).

1. Plaintiffs Proposed Question Was Not About Religion

¶ 14 The central issue in this case is whether Plaintiffs proposed question falls within the purview of the constitutional restrictions on voir dire inquiries regarding religion. We hold that it does not because it was not a question about the venire members’ religious affiliations or beliefs.

¶ 15 Plaintiffs counsel proposed to ask merely “whether [the prospective jurors] do have children on missions.” Whether intentionally or by sheer luck, Plaintiffs counsel worded his proposed question in a religiously- and denominationally-neutral fashion. An affirmative response to Plaintiffs proposed question would not have revealed the venire members’ religious affiliations, for two reasons. First, the fact that a venire member has a child on a mission does not establish that the venire member belongs to any religion, much less the same religion as his or her adult child. Second, as the proposed question did not single out missions for any particular religion — it referred simply to “missions” — venire members could have responded in the affirmative if they had children serving a mission for any religious denomination or, for that matter, any organization whose members serve “missions.” Therefore, Plaintiffs proposed question was not, on its face, directed at religious beliefs or affiliation.

¶ 16 “It requires little imagination to understand why [Plaintiff] may have wanted to know” the information his proposed question would have elicited. Ball, 685 P.2d at 1060. Plaintiffs question was not concerned with the venire members’ religious beliefs. In Plaintiffs own words, Plaintiffs very understandable and believable objective in seeking tó ask his question was to “determin[e] which prospective jurors, as a result of their association or experience, might tend to relate to or sympathize with the defendant.”

¶ 17 It is generally permissible to inquire at voir dire into venire members’ associations with people who are of the same profession as someone connected to the case, and that is all that Plaintiff sought to do here. For example, any parent whose child served as a military officer likely would feel a strong emotional attachment to the military and might very well assign some undue credibility to anyone involved in it. In such a case, voir dire inquiries about military experience would unquestionably be permissible. Cf. Darbin v. Nourse, 664 F.2d 1109, 1115 (9th Cir.1981) (“The existence of family relationships between prospective jurors and law enforcement officers was sufficient in itself to require that those jurors be questioned regarding the weight they would give the testimony of law enforcement officers.”); Ball v. Rolling Hill Hosp., 359 Pa.Super. 286, 518 A.2d 1238, 1245 (1986) (opinion of Wieand, J.) (concluding trial court did not abuse its discretion in permitting a question about “whether [the prospective jurors] or any of their immediate relatives had ever been employed by ... a casualty insurance company”). The fact that Defendant’s endeavor happened to be related to religious service is an immaterial distinction in this context. Plaintiffs proposed question focused on nothing more than the simple fact of working as a missionary, and he was entitled to know which prospective jurors had children who were pursuing such an endeavor.

¶ 18 As mentioned above, the Utah Supreme Court has recognized that a “trial judge’s discretion narrows to the extent that questions do have some possible link to possible bias, and when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears.” State v. Saunders, 1999 UT 59,¶ 43, 992 P.2d 951. As Plaintiffs proposed question at least had a “possible link to possible [juror] bias,” the trial court’s discretion to deny the question was “narrow[ed].” Id. We hold that the court exceeded that discretion in refusing to propound the proposed question.

2. Religious Inquiry at Voir Dire Is Sometimes Permissible

¶ 19 Even if Plaintiffs proposed question is more properly regarded as one bearing on religion, see note 5, we conclude it would be permissible. The Utah Supreme Court has held that in certain situations it is permissible to inquire into religion at voir dire.

¶ 20 In State v. Ball, 685 P.2d 1055 (Utah 1984), the defendant appealed his jury conviction on a charge of driving under the influence of alcohol. At voir dire, he sought to ask those members of the venire panel who did not drink if their decision not to drink was “for a personal conviction or a religious one.” Id. at 1056. The trial judge did not allow the question because he felt it was “precluded by the State Constitution.” Id. On appeal, the Utah Supreme Court vacated the defendant’s conviction. In doing so, the Court recognized that although one’s religion, age, or gender cannot be grounds for juror disqualification, see Utah Code Ann. § 78-46-3 (2002), “an exploration of the attitudes and convictions that may exist in a person who belongs to those groups is certainly permissible to aid in discovering actual bias or prejudice relating to the subject matter of a particular case.” Ball, 685 P.2d at 1057. Since the prospective jurors in Ball might have been biased for religious reasons against alcohol consumption and the defendant’s charge was related to alcohol consumption, the Court held that “the failure of the [trial] court to permit counsel’s inquiry was ... error.” Id. at 1060.

¶ 21 The Utah Supreme Court is not alone in its willingness to probe into religious preferences during voir dire for cases in which religion might be a source of actual bias. For example, the United States Supreme Court once observed:

The argument is advanced on behalf of the government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.

Aldridge v. United States, 283 U.S. 308, 314-15, 51 S.Ct. 470, 473, 75 L.Ed. 1054 (1931). Other courts have held similarly. See, e.g., United States v. Affleck, 776 F.2d 1451, 1454-55 (10th Cir.1985) (holding, in a case in which defendant feared religious bias, that trial court appropriately inquired into venire members’ “religious affiliation” and “degree of credibility [they] would assign to a Mormon on the witness stand”); State v. Fisher, 141 Ariz. 227, 686 P.2d 750, 772 (1984) (en banc) (“The trial court may, at voir dire, question and excuse venire members who would not be impartial for any reason, religious or otherwise.”), cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984); Coleman v. United States, 379 A.2d 951, 954 (D.C.1977) (“Inquiry as to a juror’s religious beliefs is proper on voir dire where religious issues are presented expressly in the case, or where a religious organization is a party to the litigation, or where it is a necessary predicate to the exercise of peremptory challenges.”); Congregation of the Passion v. Touche Ross & Co., 159 Ill.2d 137, 201 Ill. Dec. 71, 636 N.E.2d 503, 516 (1994) (“Generally, when religious affiliation is relevant to potential prejudice, subjects related to religious affiliation are proper subjects of inquiry on voir dire.”), cert. denied, 513 U.S. 947, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994); Casey v. Roman Catholic Archbishop, 217 Md. 595, 143 A.2d 627, 632 (1958) (“[I]f the religious affiliation of a juror might reasonably prevent him from arriving at a fair and impartial verdict in a particular case ... the parties are entitled to ferret out ... the existence of bias or prejudice resulting from such affiliation.”); Alexander v. State, 903 S.W.2d 881, 884 (Tex.App.1995) (“[T]he questionnaire’s mere inquiry into the prospective jurors’ religious affiliation did not violate [the defendant’s] rights under the Equal Protection Clause.”).

¶ 22 We believe that if Plaintiffs proposed question is properly deemed to be related to religion, it would nonetheless be permissible under the rationale of Ball. In that ease, the Utah Supreme Court went to great lengths to clarify that juror bias, whether its source is religion or anything else, must be rooted out. See 685 P.2d at 1057-60. The Ball Court stated:

Religious beliefs, unlike gender or race, are not readily apparent, and their existence, if directly related to the subject matter of the suit ..., must be determined by preliminary inquiry. Should ... religious beliefs (or the absence thereof) be the basis for actual bias, prejudice, or [ ]partiality, a challenge for cause would ... lie. In that event, an individual would not be declared “incompetent ... on account of religious belief’ in violation of the constitution, but rather unfit to serve in a particular cause because of actual prejudice. The fact that actual bias or prejudice is related in some way to an individual’s religious beliefs does not preclude exclusion for demonstrated inability to serve as an impartial juror.

Id. at 1057 (emphasis and last omission in original) (quoting Utah Const, art. I, § 4).

¶ 23 The present case bears similarities to Ball. As in Ball, neither party in the instant case is a church. Therefore, the concern in both cases stemmed not from the jurors’ church membership but, rather, from their possible religious beliefs regarding issues pertinent to the case: alcohol consumption in Ball and missionary service in this case. As Defendant was a missionary at the time of trial — in fact, he was physically absent from trial for that reason — the missionary-related religious beliefs of the Church’s adherents serving on the jury could certainly influence those jurors’ decisions in the ease. And considering the heavy emphasis the Church places on missionary service, the influence could be at least as great as any alcohol-related bias was in Ball. Therefore, limited religious inquiry would have been appropriate since any missionary-related religious bias could have been the basis for a challenge 'for cause or, at least, an asset in the informed exercise of peremptory challenges.

C. Adequacy of Substitute Question

1124 As noted, the trial court, upon rejecting Plaintiffs proposed question, did ask the venire panel a substitute question in its place: “Would the fact that ... the defendant ] is on a religious mission at the present time give you any problem in applying the facts in the law as you find it from the evidence in this case?” Defendant argues that this “broader question addressed the real issue — whether the jurors had any bias for or against ... [the Church’s] missionaries. When the jurors responded in the negative, no further questioning was necessary.”

¶ 25 Indeed, the court’s question did “address[ ] the real issue.” However, to say the question went far enough in eliciting the information Plaintiff was entitled to get “suggests an unwarranted naivety regarding human nature.... It is unrealistic to expect that any but the most sensitive and thoughtful jurors ... will have the personal insight, candor and openness to raise their hands in court and declare themselves biased.” State v. Ball, 685 P.2d 1055, 1058 (Utah 1984).

¶ 26 The trial court’s substitute question is an example of the kind of question that the Utah Supreme Court once characterized as a “ ‘stark little exercise.’ ” State v. Saunders, 1999 UT 59,¶ 34, 992 P.2d 951 (quoting State v. Worthen, 765 P.2d 839, 845 (Utah 1988)). The Court characterized the “exercise” as

the all too prevalent practice of avoiding any real inquiry into possible bias by a trial judge’s asking a prospective juror if he or she could decide the case fairly and follow the law given by the judge and then taking a prospective juror’s affirmative answer as dispositive of the issue of bias.

Id. Especially in view of Saunders, we cannot conclude that the trial court’s substitute question was adequate in this case.

D. Prejudice

¶27 Defendant correctly points out that any error made at voir dire must be prejudicial to require reversal. See Barrett v. Peterson, 868 P.2d 96, 102-03 (Utah Ct.App. 1993).

1. Ability to Change the Outcome of the Case

¶28 Defendant claims that if there was error in this case, it was not prejudicial error. He argues that even if the trial court had allowed Plaintiffs proposed question and Plaintiff had exercised all three of his peremptory challenges on venire members who had children on missions and, as a result, received three additional jury votes, he still would not have received the requisite six jury votes to win the ease. See note 2.

¶ 29 However, this argument assumes that peremptory challenges are the only means for removing biased venire members. It ignores the fact that “[v]oir dire has two distinct and equally important purposes: the first is to detect actual juror bias—the basis of a ‘for cause’ challenge; and the second is to allow parties to collect sufficient information to intelligently exercise peremptory challenges.” Evans ex rel. Evans v. Doty, 824 P.2d 460, 462 (Utah Ct.App.1991), cert. denied, 836 P.2d 1383 (Utah 1992). Defendant’s argument does not address the possibility that the jurors’ responses to Plaintiffs question and any appropriate follow-up questions could very well have resulted in dismissals for cause. See Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (plurality opinion) (“Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled.”); United States v. Dellinger, 472 F.2d 340, 370 (7th Cir.1972) (“[T]he court’s severe restriction of the voir dire may well have curtailed defendants’ challengés for cause[J”), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). In such a case, the trial court might have removed sufficient jurors to enable Plaintiff to gain enough votes from substitute jurors to win the case.

¶ 30 Of course, we cannot be certain that Plaintiffs proposed question would have resulted in any dismissals for cause. However, it would be unfair to give Defendant, rather than Plaintiff, the benefit of this doubt. Defendant was serving the same type of mission that many people in the same community had served. It seems very likely that many people in the community would have been able to sympathize with Defendant and possibly regard him as one who had, as Plaintiff puts it, “answer[ed] a higher call.” Given the Utah Supreme Court’s recognition of “the ease with which all issues of bias can be dispensed by the simple expedient of replacing a questionable juror with another whose neutrality is not open to question,” as well as its instruction to trial judges to “err on the side of caution in ruling on for-eause challenges,” State v. Saunders, 1999 UT 59,¶ 51, 992 P.2d 951, it does not seem unlikely that one or more jurors would have been excused for cause. See Utah R. Civ. P. 47 advisory committee note (encouraging trial judges “to exercise greater care in evaluating challenges for cause and to resolve legitimate doubts in favor of removal”).

2. State v. Menzies

¶ 31 We take care to point out that this case is unlike State v. Menzies, 889 P.2d 393 (Utah 1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995), a case in which the Utah Supreme Court imposed a requirement for demonstrating prejudice in a related context. In Menzies, five venire members revealed at voir dire some feelings that the defendant believed evinced bias. See 889 P.2d at 397. The trial judge refused to dismiss the jurors for cause, so the defendant exercised peremptory challenges to dismiss them. See id. At the time of the trial, Utah courts adhered to the per se rule that the right to an impartial jury is violated and reversal is required “whenever a party is compelled ‘to exercise a peremptory challenge to remove a panel member who should have been stricken for cause.’ ” Id. at 398 (quoting State v. Bishop, 753 P.2d 439, 451 (Utah 1988)). However, the Utah Supreme Court overturned Utah’s automatic reversal rule in favor of the more common approach, which requires that to show such a violation, one must “demonstrate prejudice, viz., show that a member of the jury was partial or incompetent.” Id. It recognized that “ ‘[s]o long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the [Constitution] was violated.’ ” Id. (second alteration in original) (quoting Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988)).

¶ 32 Plaintiff has not shown, or even argued, that any specific juror in the present case was “partial or incompetent.” Id. However, he did not need to do so because the Menzies rule does not apply to cases such as this one. The facts before the Court in Menzies involved five venire members who had revealed some feelings that arguably demonstrated bias. See id. at 397. The dispute in Menzies involved the question of whether, given the panel members’ expressed attitudes, the trial court was obligated to dismiss them for cause. The present case involves a different and much more fundamental problem. In this case, the trial court did not even give the venire panel a meaningful opportunity to reveal any information about their possible biases regarding missionaries. As a result, of course, the proceedings did not advance to the point at which, as in Menzies, a dispute arose over whether the trial court should have granted a challenge for cause. Because the problem in this case occurred before, not after, the voir dire inquiry was made and possible biases revealed, this case is not one for which the Menzies rule, requiring a showing of actual prejudice, was designed.

¶ 33 Furthermore, it would be impossible, practically speaking, to apply the Menzies rule to eases like the instant one. To show the requisite partiality or incompetence of a juror under Menzies, a party must necessarily rely on information elicited at voir dire because voir dire is the only sanctioned opportunity a party has to learn about jurors. Therefore, if the information is not revealed at voir dire, parties would have no information upon which to base a Menzies challenge, and the Menzies rule, while nice in theory, could never be put into practice in cases in which voir dire is improperly cut short.

E. Conclusion on the Voir Dire Issue

¶ 34 Since it was prejudicial error for the trial court to prohibit Plaintiffs proposed question, we reverse the tainted judgment and remand this ease for a new trial. However, given that Defendant has apparently now concluded his mission, we do not instruct the trial court to allow, on remand, questions at voir dire about the venire’s associations with missionaries. Indeed, disclosure of Defendant’s missionary service at this point would almost certainly be inappropriate. On remand, then, the trial court should evaluate all proposed questions according to whether they have an “apparent link to any potential bias,” State v. Saunders, 1999 UT 59,¶ 43, 992 P.2d 951, or whether they would enable the requesting party “ 'to exercise his peremptory challenges more intelligently.’ ” State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (quoting State v. Ball, 685 P.2d 1055, 1060 (Utah 1984)).

III. DISCOVERY SANCTIONS

¶ 35 Rule 37 of the Utah Rules of Civil Procedure authorizes a trial court to award sanctions for discovery violations. Trial courts generally have “broad discretion regarding the imposition of discovery sanctions[,] ... [and w]e will interfere only if an abuse of discretion is clearly shown.” Gorostieta v. Parkinson, 2000 UT 99,¶ 31, 17 P.3d 1110. However, rule 37(d) limits a trial court’s discretion concerning sanctions in the form of an award of expenses, stating that the court “shall” impose such sanctions “unless the court finds that the [discovery violation] was substantially justified or that other circumstances make an award of expenses unjust.” Utah R. Civ. P. 37(d). Cf. Lockette v. American Broad. Cos., 118 F.R.D. 88, 90-91 (N.D.Ill.1987) (“The usual sanction, which is mandatory, is that the recalcitrant party, his lawyer, or both pay the reasonable expenses and attorneys’ fees resulting from the failure. This sanction should not be imposed, however, if the failure to produce was substantially justified or if such an award would be unjust for other reasons.”) (citation omitted) (interpreting federal rule 37(d), which is worded almost identically to Utah’s rule 37(d)).

¶ 36 Given this standard, we see no abuse of discretion in imposing sanctions against Plaintiff. The trial court’s order notes that Plaintiff “admitted] that the requested tax returns were in fact in his possession” while the discovery request was pending. Therefore, the trial court could fairly have found that it was not unjust to impose sanctions against him.

¶37 However, the trial court’s order contains no such findings as to Plaintiffs counsel, and for that reason we vacate the imposition of sanctions against counsel. The closest the order comes to placing any fault on Plaintiffs counsel is its observation, quoting, with our emphasis, from Defendant’s response to Plaintiffs objections to Defendant’s motion to compel discovery, that “ ‘the [medical] reports [appear to have been] in his or his client’s possession [since October, 1996].’ ” This observation does not necessarily inculpate Plaintiffs counsel. It only recognizes that the fault “appear[ed]” to be either on counsel or on Plaintiff himself. An award of expenses against an attorney is unjust when the trial court finds nothing more than a mere possibility that the attorney was to blame for the discovery violation.

¶ 38 A couple of other factors seem to cut against imposing sanctions against Plaintiffs counsel. The information and documents requested were personal and would typically be in Plaintiffs possession, not his counsel’s. In fact, as noted, Plaintiff admitted that this was the ease as to the requested tax returns. Also, Plaintiffs counsel represented that “everything that [he] had in [his] file had been provided to [Defendant’s] counsel at the time of the deposition,” which was approximately two and one-half months before the trial court imposed sanctions.

¶ 39 The trial court’s order does not discuss any of the above circumstances. Therefore, we vacate the discovery sanctions against Plaintiffs counsel and remand so that the trial court can reassess counsel’s personal involvement in the discovery violation. On remand, the trial court should consider whether counsel actually had possession of any of the requested documents and information, counsel’s efforts to comply with the discovery request, and counsel’s efforts to encourage Plaintiff to comply with (or ignore) the request.

IV. OTHER ISSUES RAISED ON APPEAL

¶ 40 “In light of our decision to remand for a new trial, it is not necessary to discuss [Plaintiffs] other alleged errors. However, since the trial court may be faced with the same issues on remand, we make the following observations.” Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, 758 P.2d 929, 934 (Utah Ct.App.), cert. denied, 773 P.2d 45 (Utah 1988).

¶41 First, as to Plaintiffs motions for a directed verdict and for a new trial, the case of McCloud v. Baum, 569 P.2d 1125 (Utah 1977), which both parties discuss at length in their briefs, appears to be very much on point. Although the facts of that case are slightly different from those of the present ease, they are sufficiently similar so as to make the principles of that case controlling. In McCloud, the Utah Supreme Court articulated the law and the standards of review for a directed verdict and for a new trial, see id. at 1127, and it affirmed the denial of the plaintiffs motions for both. See id. at 1126. Contradictory to Plaintiffs argument in the present ease, the Court recognized that “[a]n inference of negligence does not arise from the fact of collision alone involving a left-turning driver.” Id. at 1127-28. The Court also recognized that “whether a reasonable person, exercising due care, would have apprehended an immediate hazard in executing a left turn” was “a question of fact ... [that t]he trial court properly submitted ... to the jury.” Id. at 1127. In view of McCloud, it appears that under Utah law, negligence in a case such as this one is a question of fact, and the trial court did not err in denying Plaintiffs motions for a directed verdict and for a new trial. If the same issues arise on remand, the trial court in the instant ease should rule consistently with the foregoing.

¶ 42 As for Officer Richan’s testimony, we recognize that “trial courts have wide discretion in determining the admissibility of expert testimony.” State v. Kelley, 2000 UT 41,¶ 11, 1 P.3d 546. We also note that “ ‘[t]he critical factor in determining the competency of an expert is whether that expert has knowledge that can assist the trier of fact in resolving the issues before it.’ ” Id. at ¶ 12 (quoting Patey v. Lainhart, 1999 UT 31,¶ 15, 977 P.2d 1193). Given Officer Richan’s training and experience in accident reconstruction, he certainly had knowledge that could assist the jury in making its decision. Therefore, it was within the trial court’s discretion to allow Officer Richan to testify as an expert. If Plaintiff wishes to discredit the testimony, or if he wishes the jury to give little weight to it — two notions that are separate issues from the admissibility of the testimony, see Alder v. Bayer Corp., 2002 UT 115,¶ 60, 61 P.3d 1068 — he is, of course, welcome to invite an expert witness of his own to contradict Officer Richan. But the mere fact that Plaintiff does not agree with the officer’s methods does not convince us that the trial court abused its discretion in admitting the testimony. If a party seeks to introduce, on retrial, Officer Richan’s testimony for the same purpose as before, it will be well within the trial court’s discretion to allow it.

¶43 Finally, we recognize that our decision necessitates that Defendant’s award of deposition costs be vacated because Defendant is no longer the “prevailing party.” Utah R. Civ. P. 54(d)(1) (allowing trial courts to award “costs ... as of course to the prevailing party”). If Defendant prevails on remand, the trial court should award deposition costs to Defendant only if the pertinent standard, set forth in Young v. State, 2000 UT 91, 16 P.3d 549, is satisfied:

The general rule regarding the recovery of deposition costs is that a party may recover deposition costs as long as the “ ‘trial court is persuaded that [the depositions] were taken in good faith and, in the light of the circumstances, appeared to be essential for the development and presentation of the case.’ ” Highland Constr. Co. v. Union Pac. R.R. Co., 683 P.2d 1042, 1051 (Utah 1984) (quoting Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980)).

Young, 2000 UT 91 at ¶ 6, 16 P.3d 549 (alteration in original).

¶ 44 In any event, the trial court should not award the costs for Defendant’s videotaped deposition; these costs are not recoverable under Young. Although the information contained in the deposition — Defendant’s version of the story — might have been “essential for the development ... of the case,” id. (emphasis added), it was not “essential for the ... presentation of the case,” id. (emphasis added), to convey the information via such an expensive manner as videotaped deposition rather than in-court testimony. It would be improper to allow parties, as Defendant attempts to do here, to absent themselves voluntarily from their own trial and still expect their opponent to cover the expense of providing their testimony, at least when it is the absent party, and not the opponent, who desires the testimony to be heard.

V. CONCLUSION

¶ 45 Due to the error made at voir dire, we reverse the jury’s verdict and the ensuing judgment and remand for a new trial. We also vacate the imposition of discovery sanctions against Plaintiffs counsel and invite the trial court to reimpose them only if, after considering counsel’s involvement in the discovery violation, it finds that it is just to do so. Finally, as to the issues discussed in Section IV of this opinion, which are technically mooted by our decision but likely to resurface on remand, we invite the trial court to follow the guidance that we have provided herein.

¶ 46 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . The posted speed limit at the location of the collision was 25 miles per hour. Plaintiff concedes that he may have been traveling as fast as 30 to 35 miles per hour.

      . The eight-person jury voted seven-to-one in Defendant’s favor. Plaintiff would have needed to receive at least six of the eight votes to prevail. See Utah Code Ann. § 78-46-5(3)(b) (2002) ("The verdict in a civil case shall be by not less than three-fourths of the jurors.”).

      . Although the lead opinion in State v. Saunders, 1999 UT 59, 992 P.2d 951, is a plurality opinion, a reading of all of the justices’ opinions in that case reveals that we cite herein only to portions of the lead opinion that enjoyed majority support. Similarly, the text we cite from two other Utah Supreme Court cases — State v. James, 819 P.2d 781 (Utah 1991), and State v. Worthen, 765 P.2d 839 (Utah 1988) — also comes solely from sections of the lead opinions in those cases that received majority support.

      . Defendant claims that Plaintiff did not preserve for appeal any questions beyond this very narrow and specific question. He argues that Plaintiff's brief incorrectly claims that Plaintiff preserved for appeal the additional questions of what "affiliation [the prospective jurors] may have with LDS missionaries” and “whether any potential jurors had served an LDS mission.” Because we hold that disallowance of the narrow question that Plaintiff actually requested is sufficient to merit a new trial, we need not address the issue of whether Plaintiff implicitly preserved the propriety of related additional questions for appeal.

      . We do realize that a high percentage of Washington County residents are members of the Church and that that church makes missionary work a matter of particular emphasis. Therefore, it is possible, in that county, that declaring one has a child on a mission is akin to disclosing one’s religious affiliation or at least might be perceived as such. However, “[a]ny harmless disturbance of a juror’s privacy that may occur through the revelation of such general information is outweighed by its close relevance to the possibility of bias in the context of a trial” from which one of the parties is absent due to a decision to work as a missionary. State v. Ball, 685 P.2d 1055, 1060 (Utah 1984).

      .In the context of the voir dire and in the community where the trial took place, many ve-nire members might have presumed that "mission” meant "mission for the Church of Jesus Christ of Latter-day Saints.” However, the question did not explicitly limit itself to such missions, and venire members should have responded in the affirmative if they had, for example, a son who was a Baptist minister proselytizing in a foreign land or a daughter who was serving as a medical missionary. Indeed, any parent in that situation would probably not presume that the question was limited to missions for the Church, nor would such parents think twice about raising their hands and declaring that they have a child on a mission — and rightly so. Webster’s Dictionary defines "mission” not as a two-year endeav- or to promote the teachings of the Church but, rather, as "a ministry (as preaching or educational or medical work) commissioned by a church or some other religious organization for the purpose of propagating its faith or carrying on humanitarian work.” Webster’s Third New International Dictionary 1445 (Philip Babcock Gove ed., 1993).

      . Maryland’s highest court rejected this notion in Davis v. State, 333 Md. 27, 633 A.2d 867 (1993). In that case, it was known at the time of voir dire that a police officer was going to testify at trial. For that reason, one of the parties sought to discover “whether anyone on the jury has been a member or is a member of the law enforcement community or whether they have a close relative or friend who is such a member." Id. at 870. The trial court rejected this request, and the Court of Appeals of Maryland held that the trial court did not abuse its discretion in doing so. It recognized that "[t]he fact that a prospective juror is employed as, related to, or associated with a law enforcement officer does not establish that the prospective juror has any undue bias or prejudice that will prevent that person from fairly and impartially determining the matter before them.” Id. at 872.
      However, Maryland law regarding the scope of voir dire differs from that of Utah. While the standard for voir dire inquiries in Maryland is whether the inquiry could elicit grounds for a challenge for cause, see id., the standard in Utah is whether it would enable a party " 'to exercise his peremptory challenges more intelligently.’" State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (quoting Ball, 685 P.2d at 1060) (emphasis added).
      The Maryland court explicitly recognized that it differed in this regard from some other jurisdictions. It stated that "some other states ... permit parties to use voir dire as a means to more effectively exercise peremptory challenges — a practice that this Court has long since rejected.” Davis, 633 A.2d at 873. See also State v. Thomas, 369 Md. 202, 798 A.2d 566, 575 (2002) (Raker, J., concurring) ("Maryland is one of the few states in the country that does not permit voir dire to inform the exercise of peremptory challenges. It has long been the rule in Maryland that voir dire is limited to the detection of bias sufficient to challenge a prospective juror for cause and not to assist in the exercise of peremptory challenges.... [L]et us, once and for all, join the rest of the country and expand the purpose of voir dire in Maryland to include the informed exercise of peremptory challenges.”).

      . In framing our analysis this way, we recognize the possibility that Plaintiff's proposed question went "directly to the existence of an actual bias” in the prospective jurors. Saunders, 1999 UT 59 at ¶43, 992 P.2d 951. However, as its disallowance was improper even under the narrowed discretion standard, we need not definitively address this issue.

      . Similarly, this court has held that voir dire inquiry into religious affiliation is permissible "[w]henever a religious organization is a party to the litigation." Hornsby v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latterday Saints, 758 P.2d 929, 933 (Utah Ct.App.), cert. denied, 773 P.2d 45 (Utah 1988).

      . In this respect, the present case and Ball are different from Hornsby. See note 9.

      . Defendant attempts to distinguish the present case from Ball on the grounds that alcohol consumption in Ball was related to the actual crime with which the defendant was charged, whereas missionary service in the present case is related to a party. Although this distinction is not groundless, see Ball, 685 P.2d at 1057 (permitting religious inquiry at voir dire when religious beliefs are “directly related to the subject matter of the suit”), it is not convincing. We must concern ourselves not with a bias's source but, rather, with the existence of bias itself.

      .The Court of Appeals for the Ninth Circuit aptly observed:
      A general inquiry concerning a juror’s ability to try a case on the evidence presented at trial and the law provided by the court should, at least theoretically, serve to identify any bias that might preclude the juror from making an impartial decision. However, as a practical matter, such general inquiries are inadequate to alert the parties or the jurors themselves to potential sources of bias. If such a general question were adequate to identify prejudice, voir dire examination would, as a matter of course, be quite brief. A single, all-encompassing and conclusory question would be sufficient.

        Darbin v. Nourse, 664 F.2d 1109, 1115 n. 9 (9th Cir.1981).

      . Furthermore, Plaintiff's brief does not request us to evaluate the propriety of sanctions against Plaintiff himself.

      . We are mindful of the fact that sanctions in the form of expenses are much more routine than are the nonmonetary sanctions authorized by rule 37, see Utah R. Civ. P. 37(d) (stating that expenses "shall" be imposed, whether "[i]n lieu of ... or in addition” to other sanctions) (emphasis added), suggesting that a lower standard of culpability applies to monetary sanctions than to nonmonetary sanctions. Cf. Fed.R.Civ.P. 37(d) advisory committee notes (“If default is caused by counsel's ignorance of Federal practice or by his preoccupation with another aspect of the case, dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be.”) (citations omitted). Even so, we cannot ignore rule 37(d)'s instruction not to award even expense-oriented sanctions if the discovery violation was "substantially justified” or if "other circumstances make an award of expenses unjust.” Utah R. Civ. P. 37(d). We believe that an award of expenses is unjust when it is imposed against a person who had absolutely no fault for the discovery violation at issue, which, even according to the trial court's order as it now stands, might well be the case as to Plaintiff's counsel.

      .We realize that the trial court might have considered these matters in making its decision. However, without any such findings or recitations in the trial court's order, the basis for its order is unclear, making it impossible for us to evaluate whether the court’s discretion was abused. Cf. Young v. State, 2000 UT 91,¶ 12, 16 P.3d 549 (remanding award of deposition costs because trial court’s failure to "explain the basis for the award” precluded appellate court from "determin[ing] whether or not the trial court exceeded the permitted range of discretion”).

      . We note that the parties fully briefed each of the three issues addressed in this section: Plaintiff's post-trial motions, Officer Richan’s expert testimony, and Defendant's award of deposition costs. Therefore, the guidance contained in this section is neither gratuitous nor uninformed.

      . Like the present case, McCloud v. Baum, 569 P.2d 1125 (Utah 1977), involved a motorcycle colliding with a left-turning automobile. See id. at 1126. Also, the jury in that case returned a verdict placing one hundred percent of the fault for the collision on the motorcycle driver, and the court entered judgment accordingly, denying the motorcycle driver’s motions for a directed verdict and for a new trial. See id. The differences between the cases are (1) the skid mark left by the motorcycle in McCloud was 50 feet long, while Plaintiff's skid mark in the present case was 41 feet long; (2) the plaintiff motorcycle driver in McCloud had been following a truck and was, therefore, concealed from the automobile until the motorcycle entered the shoulder of the road to pass the truck, which was not true of the present case; and (3) the collision in McCloud took place in an intersection controlled by a flashing yellow light, while the collision in the present case did not occur at an intersection. See id.

      . The Court stated those standards as follows:
      In reviewing a trial court’s exercise of discretion upon a motion for a new trial, this court examines the record to determine whether the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust. If there be an evidentiary basis for the jury’s decision, then the denial of the new trial must be affirmed.
      In reviewing a trial court’s rulings pertaining to motions for a directed verdict ..., this court reviews the evidence in the light most favorable to the non-moving party and to ai-ford him the benefit of all inferences which the evidence fairly supports. If reasonable persons could reach differing conclusions on the issue in controversy, a jury question exists and the motion should be denied.

        McCloud, 569 P.2d at 1127 (footnotes omitted). The standard of review applicable to the denial of a motion for a new trial has changed in one significant way since McCloud. Utah appellate courts no longer "examine[] the record” to assess the evidence. Parties are now required, in their appellate briefs, to "marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.” Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). A similar marshaling requirement applies to parties appealing the denial of a motion for a directed verdict. See Water & Energy Sys. Tech., Inc. v. Keil, 2002 UT 32, ¶ 15, 48 P.3d 888.

      .The "immediate hazard” language comes from Utah’s right-of-way statute, which is found in Utah Code Ann. § 41-6-73 (1998). The version of the statute in effect at the time of McCloud read as follows:
      "The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, during the time when such driver is moving within the intersection."
      569 P.2d at 1127 (quoting prior version of Utah Code Ann. § 41-6-73). The statute today is similar to the prior version, having eliminated only the references to intersections:
      The operator of a vehicle intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close to the turning vehicle as to constitute an immediate hazard.
      Utah Code Ann. § 41-6-73 (1998). Notably, the “immediate hazard" language, which is the phrase that the McCloud Court held constituted "a question of fact” for the jury, 569 P.2d at 1127, remains unchanged in the current version of the statute.

      . Plaintiff points us to various cases from other jurisdictions suggesting that negligence in cases such as this one is a legal question and not a factual one. If such were true, it would have been proper for the trial court to take the case out of the jury’s hands, as Plaintiff requested. See Utah R. Civ. P. 59(a)(6) (authorizing trial judges to grant a new trial if the verdict is "against law”); Cornia v. Wilcox, 898 P.2d 1379, 1383 (Utah 1995) ("[A] motion for a directed verdict ... can be granted only when the moving party is entitled to judgment as a matter of law.”). However, the Utah Supreme Court has spoken on this issue, and we are bound to follow its reasoning. Our interpretation of the Court’s McCloud opinion is that negligence in cases such as this one is a factual question.

      . Furthermore, we point out that it is debatable whether Officer Richan's testimony actually hurts Plaintiff's case. Plaintiff’s counsel stated at oral argument that even if Plaintiff had been traveling at 46.08 miles per hour, the maximum possible speed calculated by Officer Richan, he would have been visible to Defendant for at least six seconds before the collision.

      . We further note that Defendant's counsel conceded at oral argument that if Defendant had chosen to attend trial, he would have been responsible for his own airfare to travel to Utah for trial. We will not allow him to shift the payment burden to Plaintiff simply by choosing not to attend trial.