author: APPLEBY, Judge:

text:
    KB SQUARED LLC, Appellant, v. MEMORIAL BUILDING LLC, Appellee.
    No. 20170807-CA
    Court of Appeals of Utah.
    Filed April 18, 2019
    James L. Barnett, Darren G. Reid, and Steven M. Lau, Salt Lake City, Attorneys for Appellant
    James K. Tracy, Joshua L. Lee, and James C. Dunkelberger, Salt Lake City, Attorneys for Appellee
    Judge Kate Appleby authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
    Opinion
   APPLEBY, Judge:

¶1 KB Squared LLC dba Park City Live (PCL), entered into a lease agreement (the Lease) with Memorial Building LLC (Memorial) to operate a nightclub (the Club) including presenting concerts in a building owned by Memorial in Park City, Utah. PCL used an upper-level "bridge" (the Bridge) for high capacity premium concert seating. Out of occupancy and safety concerns Park City ordered PCL to stop using the Bridge in that way. PCL sued Memorial for a breach of the Lease, arguing that its inability to use the Bridge was caused by Memorial's failure to repair it. After a bench trial, the district court ruled Memorial did not breach the Lease. We affirm.

BACKGROUND

¶2 In December 2011, Memorial entered into the Lease with PCL to occupy the Club "for the purpose of [operating a] nightclub, entertainment, and other event use." Before PCL occupied the Club, a prior tenant (Prior Tenant) operated in the space. In 2005, Prior Tenant had the Bridge built inside the Club. The Bridge was intended to connect "the right and left side mezzanine levels of [the Club]." Engineers prepared construction drawings that "reflect[ed] that the Bridge was approximately 42 feet wide and would accommodate a seating area" that could hold "21 people total." The plans showed a standing area behind the seating area, which, the experts at trial calculated, could "accommodate an additional 38 people, for a total occupancy of 59 on the Bridge." "The plans also contained an express occupancy limit of 50 for the Bridge addition for egress purposes." Based on the testimony presented at trial the district court ruled that "it was reasonable, based upon the intended use of the Bridge, that it was designed to hold between 50 and 60 people for the stated and intended use-i.e., fixed seating and standing for a restaurant or nightclub."

¶3 The district court found the testimony regarding Prior Tenant's use of the Bridge after it was constructed "somewhat unspecific about the precise number of people that [Prior Tenant] housed on the Bridge." But the court concluded "[Prior Tenant] used the Bridge in a manner that appears to have exceeded the stated limit set forth in the plans." At one point, Prior Tenant also used the Bridge "to accommodate [concert] equipment."

¶4 The Lease did not contain "any representation or guaranty concerning the occupancy of the [Club], or any part thereof" nor "any representation or guaranty concerning the manner of use of any particular part of the [Club]." But the Lease generally provided that the Club as a whole was to be used as a nightclub. Prior to entering into the Lease, PCL did not investigate the purpose for which the Bridge was designed. PCL intended to use the Bridge for "premium event seating" in the same way it believed Prior Tenant used it.

¶5 In January 2013, Park City officials "observed 85 to 100 people ... dancing and jumping" on the Bridge and observed "excessive deflection of the floor." Because of this, the officials requested that PCL "limit[ ] the occupancy of the Bridge to 35." "They came back the following night and again observed 80-85 people on the Bridge." After PCL failed to follow the officials' directives, the officials "believed PCL could not control the occupancy load, [and] issued [a] 'Stop Work' order prohibiting any occupancy on the Bridge until otherwise approved."

¶6 PCL contacted the engineers involved in the construction of the Bridge and had them inspect it. The engineers concluded the Bridge was structurally sound. Their report stated that "[t]he original intent of [the Bridge] was to serve as an access platform to mount lighting and sound equipment. In the construction documents, the drawings indicate a value of 50 persons (attributed to [the Bridge] area) used to calculate the means of egress width." The report also noted, "Recently, it has become apparent that the usage of [the Bridge] (under new ownership) has been changed to an assembly area without fixed seats." The engineers recommended that to "prevent excessive deflection/vibration of [the Bridge] under the new usage, ... the maximum occupant load of [the Bridge should be reduced] to 25 persons." But the engineers also believed "the structural integrity of [the Bridge] system [was] not compromised" and was still fit for its intended purpose.

¶7 PCL asked Memorial to "restore the seating area to its former and promised use as premium event seating as required by the Lease." Memorial refused, noting that the city officials' directives resulted from PCL's misuse of the Bridge, not from its condition, and that the Bridge was structurally sound and undamaged.

¶8 PCL sued Memorial, alleging that it breached the Lease. The claims arose "out of [an] alleged representation that Memorial made in the Lease" that the Bridge was intended to be used as premium event seating. PCL asserted Memorial breached the Lease by failing "to make the structural repairs necessary to enable PCL to use [the Bridge] accordingly."

¶9 After a bench trial, the district court dismissed PCL's claim. It first noted that "PCL [did] not argue that the representation included a specific number of seats, or a specific occupancy number. Instead, it [asked] the Court to conclude that 50 would be a 'reasonable' occupancy number." "[I]t is undisputed that the Lease did not contain any express promise concerning the number of permissible occupants on the Bridge, or any specific use of the Bridge."

¶10 At trial, the principal of PCL (PCL Principal) testified that Memorial made no oral representations or guarantees to PCL regarding how the Bridge was to be used. PCL Principal "believed there was an implicit promise that [PCL] would be able to use the Bridge for nightclub [premium event] seating, which, according to [PCL's] understanding of nightclub industry usage, connotes dancing and jumping." PCL argued Prior Tenant's use of the Bridge should allow PCL to similarly use it because Memorial's Principal (Memorial Principal) was involved in the business when Prior Tenant was using the Bridge and was aware of PCL's intent to use the Bridge in the same manner.

¶11 In PCL's view, the notation "seating area" on the diagram of the Bridge attached to the Lease constituted an implicit representation. PCL "argue[d] that because the purpose of the Lease was for [it] to operate a 'nightclub,' that 'seating area' actually meant 'premium event seating' which, in the context of a nightclub, essentially means jumping and dancing."

¶12 The court found that PCL's "claim [was] at least 'tenable' ... [so it] could not interpret the Lease on its face, and had to resort to extrinsic evidence." Accordingly, the court considered the diagram and its reference to "seating area" on the Bridge. The court heard testimony about the diagram and ultimately found that it depicted square footage and was not "intend[ed] to represent or guarantee" an occupancy limit on the Bridge. The court also considered the parties' testimony and found that it was "a stretch-to say the least-that the use of the word 'seating' (taken from a construction document) was understood by everyone to mean a guarantee that the area could be used for dancing and jumping." The court ruled "the facts simply do not preponderate in PCL's favor on ... its assertions regarding the language of the Lease."

¶13 Specifically, the court noted it was unreasonable for PCL Principal to believe PCL was guaranteed a specific use for the Bridge because, (1) PCL's belief was "based on a strained interpretation of the Lease, and an improper attribution to the attached square footage diagram"; (2) PCL Principal's "understanding of [Prior Tenant's] prior use of the Bridge is not legally relevant"; (3) PCL Principal's "subjective understanding is belied by the lack of any representation from [Memorial Principal]"; (4) "there are provisions in the Lease noting that any prior representations or any representation-if they had been made-could not form the basis of an enforceable promise"; and (5) "nothing in the Lease, or the extrinsic evidence relating thereto, defines 'seating' in the manner [PCL Principal] apparently understood it."

¶14 The district court ruled that "because PCL is able to use [the Bridge] for the furtherance of its nightclub operation, and because there [was] no representation or guarantee of a specific use or occupancy, there is no breach of the terms of the Lease." The court also noted that by misusing the Bridge, PCL caused its own loss. The evidence showed the Bridge was in the same condition as when the Lease was signed and it appeared PCL was requesting that Memorial "upgrade [the Bridge], not repair it." Further, "the reason [the Bridge] cannot be used" in the way PCL requested was "based on the fact that Park City" closed it. The closure "was not based on anything Memorial did in violation of its obligations under the Lease."

¶15 The court also awarded Memorial attorney fees under the terms of the Lease, which stated that for any "dispute regarding the terms of the Lease" the "non-prevailing party agrees to reimburse the prevailing party for all expenses and costs, including reasonable attorney fees incurred." The court noted that the fee award "[would] not include the fees and costs incurred by Memorial that did not materially advance its case." It invited Memorial to file a motion and supporting memorandum detailing its request for attorney fees and costs and gave PCL an opportunity to respond. Ultimately the court awarded Memorial approximately half of its total requested fees.

¶16 PCL appeals, arguing that the court was incorrect in interpreting the Lease and also erred in awarding Memorial attorney fees when Memorial failed to "categorize fees as mandated by Utah law."

ISSUES AND STANDARDS OF REVIEW

¶17 PCL raises two issues on appeal, the first of which relates to the Lease. PCL argues the district court erred in finding the Lease ambiguous. Further, it contends the court erred in failing to consider all relevant extrinsic evidence to determine the parties' intent under the Lease and in interpreting the Lease to find PCL was not guaranteed a specific occupancy and use of the Bridge. "The interpretation of a contract is a question of law, which we review for correctness, giving no deference to the ruling of the district court." Salt Lake City Corp. v. Big Ditch Irrigation Co. , 2011 UT 33, ¶ 19, 258 P.3d 539. "Likewise, the determination of whether a contract is facially ambiguous is a question of law, which we review for correctness." McNeil Eng'g & Land Surveying, LLC v. Bennett , 2011 UT App 423, ¶ 7, 268 P.3d 854. And we "resolve questions of facial ambiguity in a contract according to the parties' intent, which is a question of fact." Id. "If the contract is ambiguous and the [district]

court makes findings regarding the intent of the parties, we will not disturb those findings unless they are clearly erroneous." Allstate Enters., Inc. v. Heriford , 772 P.2d 466, 468 (Utah Ct. App. 1989).

¶18 The second issue relates to attorney fees. PCL first argues the district court erred in awarding Memorial fees when Memorial failed to categorize its fees as required by Utah law. It also argues the court abused its discretion in awarding Memorial "unreasonable" fees. "Whether the district court applied the correct legal standard is a question of law, which we review for correctness." Bad Ass Coffee Co. v. Royal Aloha Int'l, LLC , 2015 UT App 303, ¶ 6, 365 P.3d 161. "Assuming that the district court has applied the correct legal standard," id. ,"the standard of review on appeal of a [district] court's award of attorney fees is patent error or clear abuse of discretion," Valcarce v. Fitzgerald , 961 P.2d 305, 316 (Utah 1998) (quotation simplified).

ANALYSIS

I. The Lease Agreement

¶19 PCL argues the district court erred in concluding the Lease was ambiguous regarding the Bridge's intended purpose because the Lease "expressly represents that the Bridge is to be used as nightclub seating." PCL also contends the court erred in considering extrinsic evidence and made a clearly erroneous finding that the term "seating area" described on the Lease attachment did not include "dancing and jumping" for a certain occupancy of patrons.

¶20 When interpreting contracts, courts first look to the "writing itself to ascertain the parties' intentions, and ... consider each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none." WebBank v. American Gen. Annuity Service Corp. , 2002 UT 88, ¶ 18, 54 P.3d 1139 (quotation simplified). "If the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Id. ¶ 19 (quotation simplified). But "if the language of the contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, extrinsic evidence must be looked to in order to determine the intentions of the parties." Id. (quotation simplified). If the contract is ambiguous, "[w]e review the [district] court's construction based on extrinsic evidence under the more deferential clearly-erroneous standard." West Valley City v. Majestic Inv. Co. , 818 P.2d 1311, 1313 (Utah Ct. App. 1991).

¶21 PCL contends the Lease unambiguously represents the Bridge as a nightclub seating area. The text of the Lease contains no mention of the Bridge or representations regarding its use. Instead, PCL relies on the diagram attached to the Lease, which depicts the floor plan and shows bench seating along the Bridge with the notation "seating area." PCL contends that this notation was a guarantee that the Bridge could be used for premium event seating, including dancing and jumping, for 50 to 80 nightclub patrons. Although the district court found this argument to be "tenable," no such guarantee is evident from the face of the Lease. We agree the Lease is ambiguous and that the district court properly considered extrinsic evidence to interpret its terms.

¶22 "A party challenging the [district] court's interpretation of ambiguous terms of a contract faces a substantial appellate burden." Id. We will "affirm the [district] court's findings if they are based on sufficient evidence, viewing the evidence in the light most favorable to the court's construction." Id. In this case, the district court properly considered the extrinsic evidence. First it looked to the diagram attached to the Lease, which included the term "seating area" in reference to the Bridge. The court found the "evidence was clear" that this diagram "was taken from a prior construction document only for the purpose of identifying the square footage of [the Club]." The court based this finding on the reference to the diagram in the Lease itself, the square footage calculation on the diagram, the underlying correspondence regarding the diagram, and Memorial Principal's testimony regarding why the parties included the diagram as an attachment to the Lease. Based on the evidence presented, the court found "that Memorial did not, by attaching that document, intend to represent or guarantee that that area could be used up to a certain occupancy or for a specific purpose."

¶23 The district court also found that Memorial did not tell PCL Principal during lease negotiations that PCL could use the Bridge as premium event seating to allow scores of people to jump and dance during concerts. "If [PCL Principal] relied upon such a representation she was doing so based upon her subjective understanding, which is insufficient ... to support her claim." The court said it could not "accept a representation that is simply not made in, or supported by, the Lease or any of the circumstances surrounding its execution" and concluded it was a "leap of logic ... that 'seating' really means nightclub dancing ," which includes dancing and jumping, and therefore this assertion was "entirely unsupported and unreasonable."

¶24 The evidence in the record supports the district court's findings. See Bonnie & Hyde, Inc. v. Lynch , 2013 UT App 153, ¶ 17, 305 P.3d 196 ("A [district] court's factual findings are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made." (quotation simplified)). PCL points to several pieces of evidence it argues the court should have weighed more heavily, but this court does not reweigh evidence presented at trial. See In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435 ("When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.").

¶25 In any event, even if we assume "seating" includes "dancing and jumping," PCL's claim still fails because the Lease does not guarantee high occupancy for the Bridge and therefore Memorial did not breach it. "Whether a party performed under a contract or breached a contract is a question of fact." Syme v. Symphony Group LLC , 2018 UT App 212, ¶ 23, 437 P.3d 576 (quotation simplified). "A party challenging a district court's factual findings on appeal bears a heavy burden of persuasion." Dahl v. Dahl , 2015 UT 79, ¶ 149, --- P.3d ----. "Parties challenging factual findings cannot persuasively carry their burden in this respect by simply listing or rehashing the evidence and arguments they presented during trial or by merely pointing to evidence that might have supported findings more favorable to them." Shuman v. Shuman , 2017 UT App 192, ¶ 8, 406 P.3d 258 (quotation simplified).

¶26 The district court noted that "if PCL wanted Memorial to guarantee a specific number of people in a certain area they could have done so, and should have demanded so in the Lease." PCL argues this information would not appear on a lease agreement because occupancy issues are usually decided by city zoning and enforcement officials. But that is precisely what happened here. The city officials saw 85 to 100 individuals dancing on the Bridge and told PCL to limit the number to 35.

¶27 The court also relied on several clauses in the Lease to support its conclusion that Memorial did not breach it. First, the Lease provided that PCL was "taking the property 'as is' and [acknowledged] ... that there [had] been a right to an opportunity to inspect the property." Second, the Lease's general purpose was to operate a "nightclub, entertainment, and other event use," not to guarantee PCL a specific occupancy of the Bridge. Finally the Lease contained a provision that stated, "This Lease contains all of the agreements of the parties hereto with respect to matters covered or mentioned in this Lease and no prior agreement, letters, representations, warranties, promises, or understandings pertaining to any such matters shall be effective for any such purpose." Based on these clauses and other evidence presented at trial, the court determined that PCL was not guaranteed a specific occupancy or use of the Bridge and Memorial had not breached any provision of the Lease. The court also noted that the engineers found no structural flaws in the Bridge and that PCL is still able to use it. Significantly, "the evidence was undisputed that the condition of the Bridge is in the same condition it was when the Lease was signed."

¶28 The court concluded "because PCL is able to use the bridge for furtherance of its nightclub operation, and because there is no representation or guarantee of a specific use or occupancy, there is no breach of the terms of the Lease." This finding was not clearly erroneous and therefore Memorial did not breach the Lease.

¶29 We conclude the district court correctly ruled the Lease was ambiguous and that the term "seating area" did not expressly include "dancing and jumping." Further, the court did not clearly err in interpreting the extrinsic evidence to conclude the Lease was not intended to guarantee "dancing and jumping." Finally, the court did not clearly err in its determination that Memorial did not breach the Lease by failing to repair the Bridge because the Lease did not guarantee any particular occupancy on the Bridge and PCL is currently able to use the Bridge to advance the general purpose of operating a nightclub.

II. Attorney Fees

¶30 PCL argues the district court erred when it awarded Memorial attorney fees because Memorial's fees should have been categorized consistent with Utah law. It also argues the court erred in "failing to address unreasonable fees requested by Memorial."

¶31 "In Utah, attorney fees are awardable only if authorized by statute or by contract. If provided for by contract, the award of attorney fees is allowed only in accordance with the terms of the contract." Dixie State Bank v. Bracken , 764 P.2d 985, 988 (Utah 1988) (quotation simplified). The requested fees must also be reasonable and "[a] party who requests an award of attorney fees has the burden of presenting evidence sufficient to support an award." Cottonwood Mall Co. v. Sine , 830 P.2d 266, 268 (Utah 1992). The evidence introduced regarding the reasonableness of the attorney fees should address several factors such as,

the difficulty of the litigation, the efficiency of the attorneys in presenting the case, the reasonableness of the number of hours spent on the case, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved.

Dixie State , 764 P.2d at 989 (quotation simplified). The court must then "make an independent evaluation of the reasonableness of the requested fees in light of the parties' evidentiary submissions." Crane-Jenkins v. Mikarose, LLC , 2016 UT App 71, ¶ 5, 371 P.3d 49 (quotation simplified). "An award of attorney fees must be based on the evidence and supported by findings of fact." Cottonwood Mall , 830 P.2d at 268.

¶32 In this case, the Lease stated, "In the event of any ... dispute regarding [the Lease's] terms and conditions or enforcement, the non-prevailing party agrees to reimburse the prevailing party for all expenses and costs, including reasonable attorney's fees incurred in enforcing the terms hereof."

¶33 PCL argues Memorial should have been required to categorize its fees. PCL cites this court's decision in Crane-Jenkins to support its position. Crane-Jenkins requires a party seeking attorney fees to categorize the time and fees expended for "(1) successful claims for which there may be an entitlement to attorney fees, (2) unsuccessful claims for which there would have been an entitlement to attorney fees had the claims been successful, and (3) claims for which there is no entitlement to attorney fees." 2016 UT App 71, ¶ 21, 371 P.3d 49 (quotation simplified). Here, Memorial was awarded fees under a broad Lease provision that allows it to recover any reasonably incurred attorney fees in a dispute related to the terms and conditions of the Lease. Memorial argues that it need not allocate its fees because each of its defenses and counterclaims related to whether it had to repair the Bridge under the Lease.

¶34 We agree with Memorial that when a dispute involves "multiple claims involving a common core of facts and related legal theories, and [a party] prevails on at least some of its claims, it is entitled to compensation for all attorney fees reasonably incurred in the litigation." Golden Meadows Props., LC v. Strand , 2010 UT App 257, ¶ 35, 241 P.3d 375 (quotation simplified). Because all of Memorial's defenses and counterclaims related to the same issue of whether it was required to "repair" the Bridge under the Lease, we conclude it was not obligated to separately categorize its fees.

¶35 With respect to the reasonableness of the fees, the district court considered the difficulty of the litigation, the fee customarily charged in the locality for similar services, the amount involved in the case and the result attained, and the expertise and experience of the attorneys involved. It found these factors were not disputed and that they "preponderate[d] in favor of Memorial's request." The court separately, and in detail, discussed the remaining factors of reasonableness in terms of the number of hours spent on the case and the efficiency of the attorneys presenting the case and concluded that "a reasonable amount for Memorial's reasonable and necessary attorney fees and costs incurred in this matter, for which [PCL] should be responsible ... [totals] $147,714." The court noted, "This amount represents a reasonable approximation of fees and costs." The court relied on Alexander v. Brown , which affirmed a district court's award of attorney fees where the district court chose the middle ground between two estimates, a compromise between the amounts suggested by counsel for each side of what were reasonable fees. 646 P.2d 692, 695 (Utah 1982).

¶36 The court also specifically excluded certain fees it found unreasonable, which included "all costs and fees incurred in filing [Memorial's] failed dispositive motions," the "costs associated with [two of] Memorial's experts" because the court "found their testimony to be unhelpful," and "the costs associated with [Memorial's] defense of [PCL's] damage theory" because the court found in favor of Memorial and did not award PCL damages. And, as previously noted, the court ultimately awarded Memorial considerably less than the amount it requested. We conclude the district court did not abuse its discretion in awarding Memorial its reasonable attorney fees.

¶37 Finally, both parties request attorney fees incurred on appeal. "A party entitled by contract or statute to attorney fees below and that prevails on appeal is entitled to fees reasonably incurred on appeal." Federated Capital Corp. v. Abraham , 2018 UT App 117, ¶ 15, 428 P.3d 21 (quotation simplified). The district court awarded Memorial attorney fees below pursuant to the Lease. Because Memorial has prevailed on appeal, we award it reasonable attorney fees incurred on appeal.

CONCLUSION

¶38 The district court did not err in determining that the Lease's use of the phrase "seating area" did not include "dancing and jumping." Neither did it err in finding Memorial did not breach the Lease. Finally, the court did not abuse its discretion in awarding Memorial its reasonably incurred attorney fees, and we therefore award Memorial its fees reasonably incurred on appeal. We remand for the limited purpose of determining reasonable attorney fees incurred by Memorial in connection with defending the court's ruling on appeal.

      Although no work was under way on the Bridge, in a deposition, one of the officials described a "stop work" order as "basically a ... do-not-enter, unsafe-to-occupy notice."

      Because Memorial did not breach the Lease, PCL is not entitled to damages. See Christensen & Jensen, PC v. Barrett & Daines , 2008 UT 64, ¶ 26, 194 P.3d 931 (stating that "in a breach of contract action, the non-breaching party is required to show that the breach proximately caused the damages sought").

      We also note that PCL has not identified a specific fee entry that was improperly awarded by the district court.


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    BLOOM MASTER INC., Appellant, v. BLOOM MASTER LLC, Appellee.
    No. 20170226-CA
    Court of Appeals of Utah.
    Filed April 25, 2019
    Darwin Bingham, Salt Lake City, and Alisha M. Giles, Attorneys for Appellant
    Erik A. Olson and Trevor C. Lang, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   POHLMAN, Judge:

¶1 Bloom Master Inc. (Seller) sued Bloom Master LLC (Buyer) for breach of contract and unjust enrichment, claiming that Buyer underpaid on a promissory note. The district court granted summary judgment to Buyer based on a provision of the parties' contract purportedly allowing Buyer to make reduced payments. Seller appeals. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶2 Seller manufactured a garden planter product that it sold to garden stores and other consumers. After manufacturing and selling the product for some time, Seller decided to sell the manufacturing molds to Buyer, a local garden seed and supply company.

¶3 In August 2011, Buyer and Seller memorialized their transaction in an asset purchase agreement, by which Buyer purchased the planter molds and other assets for $500,000. At closing, Buyer paid Seller $100,000 in cash and financed the remaining $400,000 with a promissory note (the Note), which was attached to and made part of the purchase agreement. The Note provides that Buyer "shall make eight (8) payments of interest and principal," beginning on August 15, 2012, "and continuing on the 15th day of each August thereafter ... in accordance with the provision herein." The Note identifies August 15, 2019, as the loan maturity date, on which the entire unpaid principal balance and accrued and unpaid interest are due.

¶4 Immediately after setting forth the Note's repayment terms, section 3 of the Note provides for a modification of its terms in the event the planter product fails to generate "expected sales numbers" in any given year:

Inasmuch as this Note is being issued in connection with the Purchase Agreement and repayment is dependent upon the continued success of the [planter product], [Buyer] and [Seller] agree that this Note, the principal amount, rates of interest, maturity date and other terms and conditions will be reviewed on an annual basis by [Buyer] and [Seller] prior to each Payment Date. In the event the [planter product] failed to generate expected sales numbers in any given year, the terms of this Note shall be modified in proportion to the reduced sales numbers.

¶5 The Note does not define the term "expected sales numbers." The only sales numbers referred to in the transaction documents are found in a disclosure schedule attached to the asset purchase agreement as part of Seller's representations and warranties regarding its customers and suppliers. In 2009, Seller's net sales totaled $355,314; in 2010, $283,261; and in 2011, $157,916.

¶6 Beginning in August 2012, and continuing for the next three years, Buyer made payments to Seller under the Note. With each payment, Buyer disclosed to Seller how the payment was calculated. For each year, Buyer treated the 2010 net sales in the disclosure schedule as "baseline sales" and compared its actual net sales for the year to that figure to arrive at a percentage. Buyer then reduced what it referred to as a $50,000 "annual payment" by the same percentage. For example, in 2012, Buyer reported actual net sales of $199,325. This amounted to approximately 70% of Seller's reported net sales figure of $283,261 in 2010. Buyer then multiplied $50,000 by the same percentage to arrive at $35,184-the amount Buyer paid on the Note in 2012. Buyer made similar calculations each year, and each year Seller accepted the payments.

¶7 After four years of accepting Buyer's payments, Seller sent Buyer a written notice of default claiming Buyer had failed to pay the "total amount due each year" and demanding the full balance of the loan. Buyer relied on section 3 of the Note to justify the amounts tendered and to deny Seller's demand. Seller then sued Buyer for breach of contract and unjust enrichment, alleging that Buyer breached the contract by not making "the full amount of the yearly payments due and owing." Both parties moved for summary judgment.

¶8 In its motion, Seller argued that the Note requires Buyer to pay $50,000 annually and that Buyer breached its obligation by tendering less than that amount in 2012, 2013, 2014, and 2015. Seller rejected Buyer's reliance on section 3, arguing that Buyer is not entitled to unilaterally modify the amount due each year because the Note requires all amendments to be in writing and signed by both parties. Seller also alternatively argued that section 3 is unenforceable because it is "little more than an 'agreement to agree' " on some future modification of the Note. Seller explained that because the term "expected sales numbers" is not defined in the Note and section 3 does not provide a formula for calculating reduced payments, it is impossible to know "what this future modification is to be." Finally, it argued that, based on the Note's severability clause, section 3 should be severed from the Note, leaving Buyer obligated to pay the original amount due on the Note without any opportunity to modify its terms.

¶9 For its part, Buyer argued that section 3 excuses it from making the payment Seller demanded and that the section is not unenforceable or severable. It reasoned that its annual payments were compliant without a written amendment to the Note because modification of the Note's terms is "automatic[ ]" under section 3 if the planter product fails to generate expected sales numbers, which could be found in the disclosure schedule identifying Seller's historical net sales. Buyer also asserted that the requirement for annual review under section 3 was satisfied because Seller had the opportunity to review Buyer's calculations accompanying its annual payments and Seller did not reject any payment or provide "any alternative method of calculating" Buyer's payments.

¶10 The district court granted Buyer's motion and denied Seller's motion. The court concluded that section 3 is not "an agreement to agree," because it makes plain that "both the obligation to pay the Note and the amount to be paid was dependent upon the success of the" planter product. It also concluded that Buyer did not breach the Note, because section 3 clearly allows for the annual payments to be "reduced in proportion to sales." And while the court noted a "possible ambiguity" in the meaning of the term "expected sales numbers," it looked to the disclosure schedule to determine that "expected sales numbers" means Seller's net sales in 2010. Based on its interpretation of the Note, the court granted summary judgment to Buyer and dismissed Seller's claims for breach of contract and unjust enrichment. Seller appeals.

ISSUES AND STANDARD OF REVIEW

¶11 Seller contends that the district court erred in denying its motion for summary judgment and in granting summary judgment in favor of Buyer. Specifically, Seller contends that the court erred in not deeming section 3, upon which Buyer relies to tender payment under the Note, unenforceable and severable from the Note as a matter of law. Summary judgment is appropriate when, viewing the facts and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party, "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a) ; see, e.g. , Penunuri v. Sundance Partners, Ltd. , 2017 UT 54, ¶ 14, 423 P.3d 1150. "We review a district court's grant [or denial] of summary judgment, as well as the court's interpretation of contracts upon which the summary judgment was based, for correctness." Desert Mountain Gold LLC v. Amnor Energy Corp. , 2017 UT App 218, ¶ 11, 409 P.3d 74 (cleaned up).

ANALYSIS

I. Breach of Contract

¶12 We must decide whether the district court correctly determined that Buyer was entitled to summary judgment and that Seller was not. Seller's argument in support of summary judgment in its favor proceeds in two parts: (A) section 3 is an unenforceable agreement to agree and (B) section 3 should be severed to allow enforcement of the balance of the Note. We agree with Seller that section 3 is an agreement to agree, and the district court accordingly erred in granting summary judgment to Buyer. But we conclude that Seller has not demonstrated that it is entitled to severance as a matter of law, and thus the district court did not err in denying Seller's motion for summary judgment.

A. Agreement to Agree

¶13 To form an enforceable contract, the parties must have a "meeting of the minds ... on the essential terms of the contract." Jones v. Mackey Price Thompson & Ostler , 2015 UT 60, ¶ 31, 355 P.3d 1000. "So long as there is any uncertainty or indefiniteness, or future negotiations or considerations to be had between the parties, there is not a contract." Id. (cleaned up). Contractual terms are "sufficiently definite" when they are "capable of being enforced." ACC Capital Corp. v. Ace West Foam Inc. , 2018 UT App 36, ¶ 12, 420 P.3d 44 (cleaned up).

¶14 An agreement to agree at some later date is thus unenforceable. See Brown's Shoe Fit Co. v. Olch , 955 P.2d 357, 362, 364-65 (Utah Ct. App. 1998) ; see also Harmon v. Greenwood , 596 P.2d 636, 639 (Utah 1979) ("Such 'agreements to agree' are generally unenforceable because they leave open material terms for future consideration, and the courts cannot create these terms for the parties."). Although a contract may still be enforced if "some contract terms" are "missing or left to be agreed upon," the "court must be able to enforce the contract according to the parties' intentions." I-D Elec. Inc. v. Gillman , 2017 UT App 144, ¶ 25, 402 P.3d 802 (cleaned up). "[I]f those intentions are impenetrable, or never actually existed, there can be no contract to enforce." Nielsen v. Gold's Gym , 2003 UT 37, ¶ 12, 78 P.3d 600.

¶15 This court held in Brown's Shoe that the lack of a price in a rental agreement or a "mechanism for determining" the price made the lease agreement "too vague and indefinite for specific enforcement." 955 P.2d at 365. In that case, the parties entered into a commercial lease agreement for an initial three-year term and two three-year option periods. Id. at 359-60. The parties agreed that the rent for the initial period and the option periods would be based on both per-square-foot rental rates and a percentage of the lessee's sales. Id. at 360. But the parties "did not specify the percentage rental" or "any mechanism for determining that rental amount" for the option periods. Id. at 362. The lease agreement merely stated that the parties "would agree on the gross volume figure from which to base additional rent during each year." Id. at 360 (cleaned up). This court held that such an agreement to agree was unenforceable because the amount of percentage rent was "left for future agreement." Id. at 362-65.

¶16 The terms governing Buyer's repayment under the Note are similarly left for future agreement. The Note requires that Buyer make an annual payment toward the principal amount, but it does not identify how much Buyer must tender each year or provide a reliable mechanism for determining the amount. Instead, section 3 requires the parties to review "th[e] Note, the principal amount, rates of interest, maturity date and other terms and conditions ... on an annual basis ... prior to each Payment Date" and to modify the Note's terms "in proportion to the reduced sales numbers" should the planter product fail to generate expected sales. In other words, while the parties generally agreed that the terms would be modified under certain circumstances, the parties left the specifics to annual review and future agreement. And without a specific agreement, one is left to wonder, among other things, how terms like interest rates and maturity dates are to be modified in proportion to reduced sales numbers, whether the principal amount in its entirety is subject to a proportional modification, or how the amounts due in a given year are to be determined. At bottom, section 3 does not provide the tools or instructions for how to achieve the modification it requires, and it is therefore an unenforceable agreement to agree. See id. at 365.

¶17 The district court reached the opposite conclusion, relying on the mandatory "shall" language in section 3. It reasoned that the provision is not an agreement to agree because "it is clear both the obligation to pay the Note and the amount to be paid was dependent upon the success" of the planter product. Our supreme court, however, has already rejected similar reasoning. For example, in Pingree v. Continental Group of Utah, Inc. , 558 P.2d 1317 (Utah 1976), the parties to a lease agreement provided in their contract that the lessee "shall have ... the option to renew" and that "the rental amount will be renegotiated." Id. at 1320 (emphases added) (cleaned up). The parties, however, were "unable to agree on the rental rate," and the district court "implied the parties had agreed on a reasonable rental figure." Id. at 1321. On appeal, our supreme court held that the "option to renew was too vague and indefinite to be enforceable" and that a court was not in a position to determine a "reasonable rental figure" when the parties had left it open for negotiation. Id. ; see also Cottonwood Mall Co. v. Sine , 767 P.2d 499, 502 (Utah 1988) ("Courts simply are not equipped to make monetary decisions impacted by the fluctuating commercial world and are even less prepared to impose paternalistic agreements on litigants."). Similarly, in Richard Barton Enterprises, Inc. v. Tsern , 928 P.2d 368 (Utah 1996), the district court reasoned that a lessor and lessee "agreed to the concept of a rent credit" but "did not agree on an amount." Id. at 373 (cleaned up). Relying in part on Pingree , the supreme court again reversed the district court's imposition of a reasonable amount for proposed modifications and held that agreeing in theory to contractual obligations was insufficient to create an enforceable contract. Id. at 373-74.

¶18 Here, the mandatory language of section 3 signifies that the parties agreed to modify terms in the event sales expectations were not met. But, as demonstrated by Pingree , that language does not resolve the question of whether section 3 is sufficiently definite to be enforced. See 558 P.2d at 1321 ; see also Tsern , 928 P.2d at 373-74 ; Brown's Shoe , 955 P.2d at 365. While the parties here agreed in principle to modify terms, their failure to agree on the tools to achieve that modification renders the provision indefinite and unenforceable.

¶19 Buyer takes issue with that conclusion, arguing that section 3 is not an agreement to agree, because the annual payment amount can be automatically determined by comparing each year's sales to the 2010 net sales figure and reducing an annual payment of $50,000 in proportion to the reduced sales numbers. But that contention fails on its own terms. Buyer's argument that modification occurs automatically under section 3 is belied by the requirement for an annual review. If modification were truly automatic, there would be no need to review the Note's terms annually. Further, the terms subject to review under section 3 are not easily modified by the simple application of a mathematical equation. Section 3 states without exclusion that the "terms of this Note shall be modified in proportion to the reduced sales numbers,"

and specifically identifies terms like interest rates, maturity date, and the principal amount as those terms subject to annual review. Thus, even assuming $50,000 represents the annual payment amount, and that the parties' expectations for future sales could be discerned, how the "modified in proportion" language is to be applied to the Note's other terms remains unclear. Section 3 simply does not provide a workable mechanism for the court to apply. See Brown's Shoe , 955 P.2d at 365.

¶20 In sum, section 3 is an agreement to agree because it anticipates some future agreement regarding modification of myriad contractual terms and because there is no clear mechanism for determining the modification. A court is therefore unable to enforce section 3, and the district court erred in granting summary judgment to Buyer on the basis of that provision. See id.

B. Severability

¶21 "[E]ven if [an] agreement to agree is invalid, it will not necessarily invalidate an entire agreement of which it forms a part ...." 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 4:29 (4th ed. 2007). In Seller's view, section 3 is "unenforceable as a matter of law," and "the district court should have severed the unenforceable language" pursuant to the Note's severability clause. And if section 3 is severed, Seller asserts that Buyer is in breach of its obligation by not tendering payments of $50,000 each year.

¶22 Under Sosa v. Paulos , 924 P.2d 357 (Utah 1996), "contract provisions are severable if the parties intended severance at the time they entered into the contract and if the primary purpose of the contract could still be accomplished following severance." Id. at 363 (emphasis added). The district court did not reach the severability question, having rejected Seller's argument regarding the provision's unenforceability. Seller argues that we can decide as a matter of law whether section 3 is severable and award it judgment on its breach of contract claim. But Seller has only addressed, both below and on appeal, the first element of severance, that is, whether Buyer and Seller intended severance. See id. Seller has never attempted to demonstrate the second element, that is, whether "the primary purpose [of the Note] could still be accomplished" if section 3 is severed. See id. Thus, Seller has not shown that it was entitled to severance as a matter of law, and the district court did not err in denying Seller's motion for summary judgment.

II. Unjust Enrichment

¶23 "Under [Utah] precedent, a claim of unjust enrichment cannot arise where there is an express contract governing the subject matter of a dispute." United States Fid. & Guar. Co. v. United States Sports Specialty Ass'n , 2012 UT 3, ¶ 11, 270 P.3d 464 (cleaned up). In moving for summary judgment, Buyer argued that it was entitled to summary judgment on Seller's unjust enrichment claim because "there is a binding, enforceable contract that governs the relationship between the parties." In granting Buyer's summary judgment motion in its entirety, the district court did not separately address the unjust enrichment claim but presumably determined it was superfluous given its conclusion that the parties' express agreement was enforceable. Because the two claims and their disposition by the district court are intertwined, we reverse the court's grant of summary judgment in favor of Buyer on the unjust enrichment claim without opining on its merits.

CONCLUSION

¶24 We conclude that Buyer was not entitled to summary judgment on Seller's breach of contract claim because section 3, which Buyer relied on to submit payments less than $50,000, is an unenforceable agreement to agree. We also conclude that Seller was not entitled to summary judgment because although section 3 is unenforceable, Seller did not show that section 3 is necessarily severable. And because we reverse the award of summary judgment on the breach of contract claim, we also reverse the dismissal of Seller's unjust enrichment claim. We therefore remand for further proceedings consistent with this opinion.

      "When evaluating the propriety of summary judgment on cross-motions for summary judgment, we view the facts and any reasonable inferences to be drawn therefrom in the light most favorable to the losing party." Flowell Elec. Ass'n v. Rhodes Pump, LLC , 2015 UT 87, ¶ 8, 361 P.3d 91.

      The Note does not state how much principal is due each year. Seller contends that the Note requires eight annual principal payments in equal installments of $50,000. It is unclear whether Buyer agrees. Buyer has previously identified $50,000 as a default annual payment amount, but in its summary judgment briefing before the district court it noted as "important" that neither the Note nor the asset purchase agreement expressly requires an annual payment of $50,000.

      The parties executed the purchase agreement in August 2011, and thus the sales identified for 2011 represent only a partial year. If the reported sales are annualized for 2011, they total approximately $236,874 ($157,916 ÷ 8 × 12 = $236,874).

      The 2012 sales ($199,325) are approximately 70.4% of the 2010 sales ($283,261).

      The Note allows Seller to declare the entire unpaid principal amount of the Note and all accrued interest "immediately due and payable" if an "[e]vent of [d]efault" occurs, which includes Buyer's failure to timely pay any amount of principal or interest due under the Note.

      The district court also referenced the "conduct and action of the parties for years" when interpreting the Note. However, it is unclear to what extent the court relied on this course of conduct to interpret the meaning of the term "expected sales numbers." Although course of conduct could be relevant to discerning the meaning of an ambiguous term, cf. Hill v. Superior Prop. Mgmt. Services, Inc. , 2013 UT 60, ¶ 13 n.4, 321 P.3d 1054, such reliance would have been inappropriate given that the court deemed the term unambiguous, Layton City v. Stevenson , 2014 UT 37, ¶ 21, 337 P.3d 242 ("Only where the contract is ambiguous will [a court] look to extrinsic evidence to interpret a contract.").

      Seller also contends that section 3 is ambiguous because the Note does not define the term "expected sales numbers." Though Seller appears to treat its ambiguity argument and the agreement-to-agree argument as related, our discussion of section 3's enforceability does not turn on the question of ambiguity. A contractual provision may be ambiguous if it is "unclear" or if it "omits terms," Beckman v. Cybertary Franchising LLC , 2018 UT App 47, ¶ 75, 424 P.3d 1016 (cleaned up), but a failure to agree on essential terms is more fundamental. An ambiguous contract or contractual provision may still be enforceable, see Mind & Motion Utah Invs., LLC v. Celtic Bank Corp. , 2016 UT 6, ¶ 24, 367 P.3d 994, but an indefinite one is by definition "no[t a] contract at all" and is therefore unenforceable, Prince, Yeates & Geldzahler v. Young , 2004 UT 26, ¶ 17, 94 P.3d 179 (cleaned up). We accordingly focus our discussion on whether section 3 is enforceable or a mere agreement to agree.

      This court and others have consistently acknowledged this same principle. In Aspenwood, LLC v. C.A.T., LLC , 2003 UT App 28, 73 P.3d 947, this court held that a contractual provision providing that the parties "agreed that they would investigate and evaluate" certain projects and "then proceed to finance, purchase, develop and then sell for a profit each of those projects" was "too vague to be enforceable." Id. ¶ 28 (cleaned up). Though the language was clear, there was "[n]o information ... given on what projects would be acquired, when or on what terms these projects would be acquired, or how and to what extent [the parties] would fund these projects." Id. Likewise, in Savoy Energy, LLC v. Aston Energy, LLC , No. 2:16-CV-967, 2018 WL 1756930 (D. Utah Apr. 10, 2018), the parties' contract provided that the defendant "shall have first right of refusal to own, construct and operate all future pipelines," but that right was "dependent on the requirement that the parties negotiate a gathering and transportation fee prior to construction of any future pipelines." Id. at *7 (cleaned up). Again, despite the mandatory "shall" language, the court concluded that the provision, which left terms to future negotiation, was "an unenforceable agreement to agree." Id. ; see also Carr Office Park, LLC v. Charles Schwab & Co. , 291 F. App'x 178, 182 (10th Cir. 2008) (holding that a contract providing that the parties "shall , in good faith, negotiate and finalize a lease document" demonstrated that the contract was merely "a document to be negotiated and agreed to at a future date" and therefore unenforceable).

      Buyer's reliance on the attached disclosure schedule listing the sales for 2010 to ascertain the parties' expectations for future sales is also flawed. Put simply, past sales do not naturally refer to expected sales. This is especially true when, as here, sales were declining year over year. In 2009, sales for the planter product were $355,314. The following year, sales were down nearly 20% (($355,314 - $283,261) ÷ $355,314 = 20.3%) and, annualizing 2011's sales, ($157,916 ÷ 8 × 12 = $236,874, see supra note 3) declined another 16% (($283,261 - $236,874) ÷ $283,261 = 16.4%) in the year after that. Buyer chose the sales figure from 2010 to complete its calculations for its reduced payments, but the parties never agreed that 2010's sales figure would continue indefinitely into the future.


author: ORME, Judge:

text:
    STATE of Utah, Appellee, v. Blake Rees WRIGHT, Appellant.
    No. 20150153-CA
    Court of Appeals of Utah.
    Filed April 25, 2019
    Nathan E. Burdsal, Orem, Robert C. Avery, and Hutch U. Fale, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.
    Opinion
   ORME, Judge:

¶1 Defendant Blake Rees Wright challenges his guilty plea to aggravated kidnapping, a first-degree felony; attempted murder and aggravated elder abuse, both second-degree felonies; and obstruction of justice, witness retaliation, possession of ammunition in a correctional facility, unlawful discharge of a firearm, and possession of a firearm by a restricted person, all third-degree felonies. Defendant argues, among other things, that his trial counsel provided ineffective assistance. Apart from his aggravated kidnapping conviction, which we vacate and in connection with which we remand for further proceedings, we affirm his convictions and deny his request to withdraw his guilty pleas.

BACKGROUND

The Assault

¶2 Defendant, who lived with his mother (Mother), instigated an argument with her about whether she had been interfering with his prescription medications and telling other people that he, a convicted felon, had access to a gun. Defendant recorded the altercation with a video camera, apparently for the purpose of making a video record of her "lies."

¶3 A few minutes into the argument, Mother stood up, intending to leave, but Defendant pushed her back into her chair. Mother and Defendant continued to argue, and Defendant told Mother that he "could fuckin' put a bullet in [her] fuckin' head and not even think twice about it." Mother admitted that she had told someone that he had a gun. She then shoved Defendant, knocking the video camera out of his hands. Although Defendant and Mother are no longer visible on the recording, a subsequent assault can be heard in the background.

¶4 Mother testified that Defendant hit her "hard" with "both hands" for what "felt like forever." He also put her in a headlock and squeezed her until it "felt like something was breaking." After releasing Mother, Defendant took a piece of glass from a coffee table that had been broken during the attack and brandished it over Mother, making her think it was "all over." In the video recording, Defendant is heard saying, "You, fuckin', you oughta get your fuckin' hands off you old bitch or I'll fuckin' kill you, to death. I'll choke you to death." As Mother pleads with Defendant to stop, he tells her he is going to "beat [her] to death," "kill [her]," and that the beating was "just a taste [of] what [she was] going to get." Defendant then stops the recording.

¶5 For a few hours, Defendant left Mother alone and the two were not together. But once again Defendant became upset with Mother for interfering with his prescription medications. Defendant then got a gun, pointed it at her head and ordered her to call 911. He told her he was "not kidding around" and he "could shoot [her] leg," and then he shot two bullets into the floor. Subsequently, Defendant grabbed Mother by the legs and pulled her out of the chair. She fell to the floor and "could hear" her ribs cracking. Mother eventually got back on the chair and stayed there "because it was so painful that [she] couldn't do anything else."

¶6 Unable to tolerate the pain anymore, Mother asked Defendant to open the garage door so that she could go to the hospital. She asked him three times to open the garage door before he complied with her request. Before Mother left, Defendant asked her what she was going to say at the hospital, and she told him that she would tell the hospital staff she fell off the cement steps.

¶7 Defendant followed Mother to the hospital. Approaching her in the emergency room area, he lifted up his coat "to show [her] that he had [a] gun." When the emergency room doctor (First Doctor) examined Mother, she told him that she had fallen off the front porch steps. First Doctor recommended that Mother stay the night, but Mother was worried that Defendant would hurt other people, so she returned home.

¶8 The next day, when her daughter picked her up, Mother told her that Defendant had attacked and "pistol whipped" her. After a few days at her daughter's home, Mother was still in a lot of pain and returned to the hospital. A doctor (Second Doctor) examined her and determined that she had a subdural hematoma and edema-bleeding between the brain and the skull and swelling of the brain. Another doctor confirmed the diagnosis with an MRI that showed a subdural hematoma and "[shear] injury" to Mother's brain. Mother also had a bruised spleen and four broken ribs.

¶9 Officers arrested Defendant. Defendant, smiling at an officer said, "You guys didn't even find the gun, did you?" But officers found a fully loaded .22 caliber gun hidden at the house, and Defendant unsuccessfully tried to dispose of .22 caliber ammunition at the jail. Defendant's sister later found the video recording and turned it over to the police. Defendant was charged as noted above, see supra ¶ 1, and the case proceeded to trial.

The Trial

¶10 On the first day of trial, Defendant requested a continuance, seeking new counsel. The district court, unaware of any conflict between Defendant and his counsel (Trial Counsel), asked Trial Counsel about the conflict. Trial Counsel replied that it would be better for "additional counsel [to] come in the case," based on the "complexity of the case" and given the number of counts and his "relationship with [Defendant]." Trial Counsel indicated that Defendant "want[ed him] to continue to work on the case" and appreciated counsel's efforts, but Defendant wanted "an attorney of his own that he's selected to join in and be lead counsel." The State pointed out that Trial Counsel was a "very experienced attorney" who had "tried a number of very difficult cases" that were "much more complicated and much more serious than" Defendant's case, and he had the necessary skill and experience to try the case on his own. The court denied the continuance request, stating that Defendant should have made the request "months ago" instead of on the first day of trial. It also denied Trial Counsel's request for additional counsel.

¶11 Three days into the trial, and after having viewed the video recording made by Defendant, the jury heard detailed testimony from Mother about the assault. After Mother's testimony, Trial Counsel requested additional time during the break. After returning from this break, the parties announced that Defendant would plead guilty as charged, but the State would amend the aggravated kidnapping count by removing the serious bodily injury allegation which would reduce the maximum sentence from life without parole to 15 years to life. See Utah Code Ann. § 76-5-302(3)(a)-(b) (LexisNexis 2017).

¶12 Defendant signed a plea statement, listing the rights that he was waiving, including his right to a trial at which the State would have "the burden of proving, beyond a reasonable doubt, what are called 'elements' of the offense (or offenses) charged." The district court conducted a plea colloquy to ensure that Defendant understood his guilty plea. During the colloquy, Defendant acknowledged that he had read and understood the plea agreement and the rights he was waiving, had no questions about it and required no further explanation of it, and was "acting freely and voluntarily" in entering his guilty plea.

The Plea Withdrawal Hearing

¶13 A few days later, Defendant wrote a letter to the district court seeking to withdraw his guilty plea. Although the pro se motion was filed before sentencing, the district court failed to address it and proceeded with sentencing. Defendant appealed and this court summarily reversed Defendant's sentence and remanded the matter to the district court to address the motion. See id. § 77-13-6(2)(b).

¶14 On remand, Defendant was appointed new counsel and granted leave to amend his motion to withdraw his guilty plea. In his amended motion, Defendant argued that his plea was not made knowingly or voluntarily and that Trial Counsel provided ineffective assistance. In an evidentiary hearing on these issues, Defendant testified that he pled guilty because Trial Counsel was unprepared for trial and he felt forced to take the plea deal. But Trial Counsel contradicted this testimony, stating that he had met with Defendant multiple times, interviewed the witnesses, visited the crime scene, and reviewed the evidence. Trial Counsel further testified that, after Mother testified at trial, Defendant did not want her to be cross-examined because "she'd been through enough" and Defendant had seen "the entire jury was in tears." Defendant also told Trial Counsel that he was "going to be convicted," a conclusion with which Trial Counsel apparently did not disagree. Trial Counsel then asked Defendant if he wanted to seek a plea deal, and Defendant told him that he did.

¶15 The district court determined that Trial Counsel's testimony was more consistent with the record and that Defendant's testimony was self-serving and "was contradicted by the record." Based on that determination, the court found that Defendant was the one who sought a plea agreement, not Trial Counsel, and that he was not "coerced or compelled to accept a plea bargain." It also concluded that the record established that Defendant entered his plea knowingly and voluntarily and that Trial Counsel's performance "was not deficient" nor prejudicial to Defendant.

¶16 Defendant was then sentenced to several prison terms, some running consecutively and some running concurrently. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶17 Defendant raises two arguments on appeal. He first argues that Trial Counsel provided ineffective assistance of counsel in several ways, rendering his plea unknowing and involuntary. With regard to those issues upon which the district court found facts at the plea withdrawal hearing conducted at our direction on remand following Defendant's initial appeal, our decision is informed by the court's findings of fact. See State v. King , 2017 UT App 43, ¶ 13, 392 P.3d 997. For those issues upon which the district court did not find facts, we review the ineffectiveness issues for correctness, examining "whether the defendant was deprived of the effective assistance of counsel as a matter of law." See Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587.

¶18 Defendant also contends that cumulative errors made by Trial Counsel allow the withdrawal of his guilty plea. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair [proceeding] was had." State v. Kohl , 2000 UT 35, ¶ 25, 999 P.2d 7 (quotation simplified).

ANALYSIS

I. Ineffective Assistance of Counsel

¶19 Defendant contends that his plea was unknowing and involuntary because he either had to "plead guilty to crimes he did not commit but have the chance of parole" or "continue with trial and assuredly be convicted without the possibility of parole." He essentially argues that Trial Counsel provided such deficient legal representation that Defendant had no choice but to plead guilty to the crimes for which he was charged, raising six instances where Trial Counsel provided such deficient representation and one instance in which his plea withdrawal counsel did.

¶20 To prevail on a claim of ineffective assistance of counsel, a defendant must show "that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). And allegations of ineffective assistance "cannot be a speculative matter" and must be firmly rooted in the record. Nicholls v. State , 2009 UT 12, ¶ 36, 203 P.3d 976 (quotation simplified).

A. Failure to Obtain Independent Medical Experts

¶21 Defendant contends that Trial Counsel failed to "follow up with independent medical analysis" or call independent medical experts at trial to demonstrate that Second Doctor's subdural hematoma diagnosis was incorrect. He asserts that Mother's injuries can occur "spontaneously" as a result of her age and Trial Counsel should have followed up with a medical expert to confirm this theory. Defendant raised this claim at the plea withdrawal hearing, and the district court found that Trial Counsel's decision not to call "an additional medical expert" was "a reasonable strategy choice." The court determined that "a neurologist or an additional medical expert" "would not have made a significant difference to the outcome of the case" and "Defendant has not presented any actual evidence that these additional expert witnesses would have given ground shaking testimony to contradict or undermine the testimony the medical doctors gave in this case."

¶22 Defendant does not point to evidence in the record demonstrating that the court's factual findings were clearly erroneous. On appeal, a defendant "cannot 'simply restate or review evidence that points to an alternate finding or a finding contrary to the trial court's finding of fact.' " Salt Lake City v. Reyes-Gutierrez , 2017 UT App 161, ¶ 25, 405 P.3d 781 (quoting Ostermiller v. Ostermiller , 2010 UT 43, ¶ 20, 233 P.3d 489 ). "Rather, to show clear error, he must identify the supporting evidence and explain why the trial court's factual finding is nonetheless against the clear weight of the evidence." Id. For that reason, we defer to the district court's finding that Trial Counsel's decision not to obtain an additional medical expert was a reasonable strategic choice because Trial Counsel "could make and argue the same points using the more credible doctor witnesses the State had already subpoenaed." We conclude that Trial Counsel's decision to forgo independent medical experts does not constitute deficient performance, and Defendant's ineffective assistance of counsel claim therefore fails.

B. Failure to View or Investigate Evidence

¶23 Defendant contends that Trial Counsel did not view or investigate critical evidence in his case. To begin with, Defendant argues that Trial Counsel did not view the video recording prior to the evidentiary hearing on his motion to suppress or otherwise before trial and that Trial Counsel's motion in support lacked "legal authority or meaningful analysis." Had it not been for these errors, Defendant argues, the motion would have been successful because his sister conducted the warrantless, nonconsensual search on behalf of the police.

¶24 At the plea withdrawal hearing, Trial Counsel stated that he viewed the video with Defendant multiple times before trial. It is not clear from the record whether Trial Counsel viewed the video prior to the evidentiary hearing on the motion to suppress. Nevertheless, the motion to suppress was futile. Trial Counsel filed a supporting memorandum after the evidentiary hearing, arguing that the video recording should be suppressed given that it was the fruit of an unconstitutional search by Defendant's sister. While the district court concluded that Defendant's sister conducted the search, it determined there was no evidence that this private search was done at the request of the police. And so, even if Trial Counsel failed to watch the video recording prior to the evidentiary hearing and his motion lacked "legal authority or meaningful analysis," it was not prejudicial to Defendant given the futility of the motion premised on his sister acting as a police agent.

¶25 Defendant next argues that Trial Counsel failed to investigate ballistic and forensic evidence, asserting that it is not possible for him to have shot the gun at the angle the State claims he did, his fingerprints were not found on the gun, and there is no evidence the gun was fired. He contends that Trial Counsel should have hired an independent expert to testify to these claimed inconsistencies. But these claims are speculative, without any basis in the record, and are insufficient to overcome the presumption that Trial Counsel provided effective assistance. See Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.").

¶26 Mother testified that Defendant shot the gun twice, which was corroborated by bullet holes found by officers in the floor. An officer also testified that upon Defendant's arrest Defendant, with a smile on his face, stated, "You guys didn't even find the gun, did you?" But officers found a .22 caliber handgun at the house, and Defendant later unsuccessfully tried to dispose of .22 caliber ammunition, overlooked by the arresting officer during the search of Defendant once he got to jail. In light of this evidence, and given Trial Counsel's testimony that he had viewed the evidence and the crime scene prior to trial, we presume Trial Counsel did not pursue ballistic and forensic experts having concluded, in his "reasonable professional judgment," id. , that such an exercise would be pointless. For these reasons, Defendant's ineffective assistance of counsel claim, premised on this ground, fails.

C. Failure to Advise Defendant on the Sufficiency of the Evidence

¶27 Defendant contends that he should be allowed to withdraw his guilty pleas to possession of ammunition in a correctional facility, attempted murder, and aggravated kidnapping because Trial Counsel "failed to provide competent legal advice" on the insufficiency of the evidence supporting these charges.

¶28 Determining that it was Defendant's request that Trial Counsel seek a plea agreement after hearing Mother's testimony and seeing the jurors in tears, the district court found that Defendant was "not coerced or compelled to accept a plea bargain." And because there was compliance with rule 11 of the Utah Rules of Criminal Procedure, including a factual basis, "provided by both the opening statement and the subsequent witnesses and exhibits that were presented to the court over two and one half days of testimony," the court concluded that Defendant "entered his pleas knowingly and voluntarily." See Utah R. Crim. P. 11(e)(4)(B) (requiring that the court may not accept a plea until "there is a factual basis for the plea," including "that the prosecution has sufficient evidence to establish a substantial risk of conviction").

¶29 Defendant argues that his guilty plea was not "knowing and voluntary" because Trial Counsel failed to advise him that no sufficient factual basis supported the possession of ammunition in a correctional facility, attempted murder, and aggravated kidnapping charges. See Hill v. Lockhart , 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (stating that because "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases") (quotation simplified). We address each claim in turn and conclude that Defendant's guilty plea to these charges was knowingly and voluntarily made, with the exception of his guilty plea to aggravated kidnapping where Trial Counsel erred in failing to raise any objection or to advise Defendant on the insufficient evidence supporting the element of "detention."

¶30 On an ineffective assistance of counsel claim, a convicted "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, we "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (quotation simplified). This standard "is a most deferential one," Harrington v. Richter , 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), because "[e]ven the best criminal defense attorneys would not defend a particular client in the same way," Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Therefore, "the question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Harrington , 562 U.S. at 105, 131 S.Ct. 770 (quotation simplified). But even supposing counsel erred, a defendant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky , 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

1. Possession of Ammunition in a Correctional Facility

¶31 Defendant contends that Trial Counsel failed to advise him that he had an entrapment defense to the charge of possession of ammunition in a correctional facility. To prove that charge, the State had to establish that Defendant knowingly possessed the ammunition he tried to get rid of at the jail. See Utah Code Ann. § 76-8-311.3(4)(d) (LexisNexis 2017). See also id. § 76-2-103(2) (providing that a "person acts knowingly ...

when he is aware that his conduct is reasonably certain to cause the result"). When Defendant was arrested, the arresting officer searched Defendant for weapons before taking him to jail. At the jail, officers asked Defendant to empty his pockets. He started tossing items into a garbage can, and officers discovered he was trying to dispose of .22 caliber bullets.

¶32 The State concedes that it would have been "the preferred course of action and good police practice" to have found the ammunition when Defendant was searched incident to arrest, before he arrived at the jail. But the arresting officer testified that in searching Defendant for weapons, he did not discover the .22 caliber bullets. More importantly, Defendant would have been aware he could not have ammunition in the jail because there was a sign at the entrance of the jail stating, "NO FIREARMS ALLOWED IN THE JAIL[.] This includes: Ammunition, Knives, or Chemical sprays." A second sign stated, "No Contraband Allowed In Jail[.] Any unauthorized contraband brought into this jail may result in additional charges against you. [Y]ou should make known to the jailer all possessions you bring into the jail." Defendant therefore should have notified officers that he needed to divest himself of the bullets prior to entering the jail, but he did not. Instead, he entered the jail and then tried to dispose of the .22 caliber bullets in a garbage can, presumably because he did not want officers to discover evidence linking him to the gun.

¶33 Defendant contends that officers put the ammunition in his pockets and he "attempted to dispose of the ammunition at the first opportunity." "Entrapment occurs when a peace officer ... induces the commission of an offense ... by methods creating a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Id. § 76-2-303(1). There is no evidence in the record that the arresting officer or officers at the jail knew Defendant had ammunition with him prior to his entering the jail or that officers planted the ammunition on Defendant. There was sufficient evidence to support a conviction for possession of ammunition in a correctional facility, and we assume Trial Counsel concluded that trying an entrapment defense would not be successful. See Harrington v. Richter , 562 U.S. 86, 107, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ("Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies."). Therefore, Defendant's ineffective assistance of counsel claim on this ground also fails.

2. Attempted Murder

¶34 Defendant argues that he could not have committed attempted murder because there is insufficient evidence to show that he intended to cause Mother serious bodily injury or death. To prove attempted murder, the State bore the burden of establishing that Defendant "engage[d] in conduct constituting a substantial step toward commission of" murder and intended to commit the crime or "act[ed] with an awareness that his conduct [was] reasonably certain to cause that result." Utah Code Ann. § 76-4-101(1) (LexisNexis 2017). See also id. § 76-5-203(2)(a)-(b) ("Criminal homicide constitutes murder if ... the actor intentionally or knowingly causes the death of another [or,] intending to cause serious bodily injury to another, the actor commits an act clearly dangerous to human life that causes the death of another"); State v. Casey , 2003 UT 55, ¶ 38, 82 P.3d 1106 (stating that for attempted murder the State "must show that the defendant acted intentionally").

¶35 At trial, the State provided sufficient evidence that Defendant intended to kill Mother and took a "substantial step" toward doing so. Prior to and during the assault, Defendant threatened that he would "beat [Mother] to death." He added: "I could fuckin' put a bullet in your fuckin' head and not even think twice about it. You fuckin' whore"; "You fuckin', you oughta get your fuckin' hands off you old bitch or I'll fuckin' kill you, to death. I'll choke you to death"; "I'll beat you to death"; and "Yeah, I kill you." There is nothing to suggest he was only kidding. On the contrary, he specifically told Mother that he was not kidding. Mother testified that Defendant hit her with both hands for what "felt like forever," put her in a headlock and choked her until it "felt like something was breaking," threatened her with a glass shard, put a gun to her head, pulled her out of her chair hard enough that she heard her ribs break, and shot two bullets into the floor. Defendant's threats established his intent to kill Mother, or so the jury might well have concluded, and he acted in a manner consistent with those threats, as Mother testified, demonstrating that Defendant "engag[ed] in conduct constituting a substantial step toward commission of the crime." Utah Code Ann. § 76-4-101(1)(a). See id. § 76-4-101(2) (providing that "conduct constitutes a substantial step if it strongly corroborates the actor's mental state").

¶36 With the video recording and Mother's testimony, the State had sufficient evidence to establish the elements of attempted murder. And given the overwhelming evidence of Defendant's guilt on the attempted murder charge, Defendant fails to demonstrate that it would have been reasonable for him to reject a plea deal and proceed to trial on that charge. Defendant's ineffective assistance of counsel claim on this ground also fails.

3. Aggravated Kidnapping

¶37 Defendant argues that he could not have committed aggravated kidnapping because there is insufficient evidence to show he detained Mother. To prove aggravated kidnapping, the State had to establish that "in the course of committing unlawful detention or kidnapping," Defendant "possesse[d], use[d], or threaten[ed] to use a dangerous weapon," or intended "to inflict bodily injury on or to terrorize [Mother]" or "to hinder or delay the discovery of or reporting of a felony." Utah Code Ann. § 76-5-302(1) (LexisNexis 2017). As is relevant here, the Utah Code defines kidnapping and unlawful detention as detaining or restraining the victim "intentionally or knowingly, without authority of law, and against the will of the victim." Id . § 76-5-301(1), -304(1). And although the kidnapping statute may require the State to prove the defendant "detain[ed] or restrain[ed] the victim for any substantial period of time," id. § 76-5-301(1)(a) (emphasis added), the unlawful detention statute does not.

¶38 "[T]o demonstrate aggravated kidnapping of the unlawful detention variant, the State must show, in addition to one or more aggravating circumstances, only that the defendant unlawfully detained or restrained the victim and that he did so intentionally or knowingly." State v. Wilder , 2016 UT App 210, ¶ 20, 387 P.3d 512, aff'd on other grounds , 2018 UT 17, 420 P.3d 1064. As we determined in Wilder , " 'detains or restrains' refers to restriction of the victim's movement, but neither definition requires ... complete confinement or imprisonment." Id . ¶ 21. See Detain , Webster's Third New International Dictionary 616 (1993) ("to hold or keep in or as if in custody" or "to restrain [especially] from proceeding"); Restrain , Webster's Third New International Dictionary 1936 (1993) ("to hold (as a person) back from some action, procedure, or course" or "to deprive of liberty"). For that reason, the State need only prove that "Defendant intentionally acted, however briefly, to impair the victim's ability to move freely." Wilder , 2016 UT App 210, ¶ 22, 387 P.3d 512.

¶39 Here, the State argues that there were two detentions: (1) Defendant pushed Mother back into the chair, and (2) Defendant would not let her leave the house to go to the hospital. We disagree with both contentions.

¶40 First, Defendant pushing Mother back into her chair is not sufficient to support a finding of detention. The push was incident to the ongoing assault. Defendant and Mother were arguing and when Mother stood up to walk away, Defendant pushed her back down into the chair. Defendant then shouted, "[W]hy did you fuckin' accuse me of stealing my Dad's stuff when I came home the other day?" The context of Defendant's action indicates that the push was assaultive rather than restrictive. See Utah Code Ann. § 76-5-102(1)(a) (defining assault as "an attempt, with unlawful force or violence, to do bodily injury to another"). And we are not persuaded that Defendant intended to detain Mother. The video recording displays no other actions taken by Defendant to suggest that he intended to impair Mother's ability to move. Cf. Wilder , 2016 UT App 210, ¶¶ 6, 22, 387 P.3d 512 (holding a reasonable jury could have inferred a detention occurred where the defendant followed the victim into the hallway, grabbed her hair and tried to drag her away while she locked and braced her legs between the hallway walls); State v. Sanchez , 2015 UT App 27, ¶¶ 14-15, 344 P.3d 191 (holding a reasonable jury could have found a detention where the defendant clearly intended to detain the victim against her will by dragging her 58 feet down a hallway and closing the door); State v. Ellis , 2014 UT App 185, ¶ 10, 336 P.3d 26 (holding a reasonable jury could base an aggravated kidnapping conviction on evidence that the defendant "followed [the victim] around the house throughout the day," even following her into the bathroom to prevent her from escaping) (quotation simplified).

¶41 Second, the State argues that Defendant would not let Mother "leave the house to go to the hospital until she promised to lie about what happened." The State claims that after the assault, Mother "begged" Defendant to open the garage door, but he would not until he knew what she would say. Defendant only let her leave after knowing she would tell the hospital that she fell off the cement steps. But the record does not support these assertions, and nothing in Mother's testimony suggests that Defendant intended to "detain" Mother by not opening the garage door.

¶42 Mother testified that, after the assault, she asked Defendant three times "to open the garage door" before "he opened it." She could not recall why she did not have a garage door key herself, but she did not. When the State asked Mother, "Without him opening that garage was there a way for you to leave?" Mother replied, "I could have gone outside and there's buttons that you could push, but half the time it doesn't do it." Before Mother left the house, Defendant wanted to know what she was going to tell hospital personnel, but she gave no indication in her testimony that Defendant was preventing her from leaving the house. Instead, to prevent Mother from telling the truth, Defendant threatened Mother with a gun and followed her to the emergency room, lifting his coat to show her the gun before she met with First Doctor. And she testified that she was concerned about reporting Defendant's assault because of what he would do to his sisters if she told the truth. Because Mother never testified that Defendant prevented her from leaving the house, we conclude that Defendant did not "detain" her.

¶43 Because neither of these instances amount to a detention under the aggravated kidnapping statute, Trial Counsel was remiss in not moving to dismiss the charge after Mother's testimony or during plea negotiations. And although Mother's testimony of the assault may have persuaded Defendant that he was "going to be convicted" and he sought a plea agreement, Trial Counsel failed to inform Defendant that an insufficient factual basis supported the aggravated kidnapping charge. Trial Counsel testified that, during plea negotiations, he did not discuss the factual basis for the aggravated kidnapping charge with Defendant because Defendant said he understood the factual basis for each element based on the State's evidence given at trial. He further testified that his advice about the aggravated kidnapping evidence occurred prior to trial. Given that the factual basis for Defendant's plea rested on the evidence presented at trial, a reasonable defense attorney would have objected to the aggravated kidnapping charge and informed his client that an insufficient factual basis supported the element of "detention." See State v. Finlayson , 2000 UT 10, ¶ 24, 994 P.2d 1243 (holding that the first part of the Strickland test had been met because the facts of the case failed to support an aggravated kidnapping conviction and defendant's counsel failed to make an objection), abrogated on other grounds by State v. Wilder , 2018 UT 17, 420 P.3d 1064. Had Trial Counsel done so in this case, we are confident that Defendant "would not have pleaded guilty and would have insisted on going to trial."

Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See also Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001) (stating that "the strength of the prosecutor's case" is the best evidence of whether a defendant would have in fact changed his plea). More likely, of course, had Trial Counsel considered the evidence more carefully and shared this analysis with the State, it is possible the plea arrangement would have gone forward with aggravated kidnapping off the table, given Defendant's willingness to plead to the other seven felony charges against him.

¶44 We conclude that there is sufficient evidence for Defendant's possession of ammunition in a correctional facility and attempted murder convictions, and consequently, Defendant fails to demonstrate it would have been rational for him to withdraw his guilty plea to the charges resulting in these convictions. But, as to his aggravated kidnapping conviction, Trial Counsel erred in failing to object to the charge after Mother's testimony or during plea negotiations and in failing to advise Defendant that an insufficient factual basis supported the "detention" element of the crime. Defendant's plea to this charge was therefore unknowingly and involuntarily made, and accordingly we vacate his aggravated kidnapping conviction.

D. Other Ineffective Assistance Claims

¶45 Defendant contends that Trial Counsel failed to preserve evidence and object to hearsay testimony and that his plea withdrawal counsel provided ineffective assistance by failing to investigate and raise substantive issues. We conclude that these issues are inadequately briefed.

¶46 Because "we are not a depository in which the appealing party may dump the burden of argument and research," we "will not address arguments that are not adequately briefed." Johnson v. Johnson , 2014 UT 21, ¶ 20, 330 P.3d 704 (quotation simplified). "A party must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate." Bank of Am. v. Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196 (emphasis added). And "an appellant who fails to adequately brief an issue will almost certainly fail to carry its burden of persuasion on appeal." Boyle v. Clyde Snow & Sessions PC , 2018 UT App 69, ¶ 11, 424 P.3d 1098 (quotation simplified). This burden "can be met only if the facts used in the argument section of the brief are sufficient to provide context for the events that occurred in the district court, are correctly shown to be in the record, and are analyzed in relation to pertinent legal authority." Id. ¶ 12.

¶47 Defendant makes a number of assertions with no citation to the record, and he fails to engage in the analysis necessary to evaluate whether Trial Counsel's performance in these instances was deficient and prejudicial. First, he argues that Trial Counsel failed to preserve crime scene evidence, claiming that the State has an obligation to preserve exculpatory evidence and that Trial Counsel should have required the State to preserve this evidence for the defense. But Defendant fails to cite any legal authority supporting this argument and does not discuss why the absence of this evidence at trial was prejudicial to his defense.

¶48 Second, Defendant argues that Trial Counsel failed to object to obvious hearsay testimony from First and Second Doctors. Defendant argues that these witnesses did not diagnose Mother because they relied instead on the "radiologists specifically trained to read and interpret data." Defendant fails to develop any meaningful legal analysis of his arguments or of rules 801(c) and 803 of the Utah Rules of Evidence and controlling authority on this issue. And furthermore, he asserts that "[a]t worst, the evidence shows that [Defendant] slapped his mother and pulled her out of a chair," arguing that the evidence is sufficient to support a simple assault charge but not attempted murder or aggravated assault. But Defendant was not convicted of aggravated assault, and as we discussed above, the video recording and Mother's testimony constituted sufficient evidence to support the attempted murder conviction. See supra ¶¶ 34-36.

¶49 Finally, Defendant argues that his plea withdrawal counsel "failed to adequately question [Trial Counsel's] credibility" and "failed to establish that [Trial Counsel] was highly motivated to get a guilty plea." But the focus of Defendant's argument is on Trial Counsel's errors, not those of his plea withdrawal counsel, and in framing the argument this way, he fails to engage in a meaningful analysis of these ineffective assistance claims. Because Defendant fails to adequately brief these claims, he fails in his burden of persuasion, and we decline to address them further.

II. Cumulative Error

¶50 Defendant contends that the cumulative prejudicial effect of his ineffective assistance of counsel claims undermines confidence in his guilty plea, and we should therefore reverse his convictions. However, "[i]f [we] determine[ ] that either a party's claim did not amount to an error, or that the claim was an error but has no potential to cause harm on its own, the claim cannot weigh in favor of reversal under the cumulative effects test." State v. Martinez-Castellanos , 2018 UT 46, ¶ 42, 428 P.3d 1038.

¶51 Defendant did not demonstrate prejudice on six of his ineffective assistance of counsel claims, and although we concluded that Trial Counsel's failure to object to the aggravated kidnapping charge given the State's insufficient evidence supporting the element of "detention" prejudiced his defense, this does not undermine his guilty plea to the other charges. Accordingly, there was no cumulative error in this case.

CONCLUSION

¶52 We affirm Defendant's convictions and conclude that his guilty pleas were knowingly and voluntarily made, with the exception of the plea culminating in his aggravated kidnapping conviction. We vacate that conviction and remand for trial or such other proceedings as may now be in order.

      In relation to one of his ineffective assistance claims, Defendant also argues that the district court failed to apply the doctrine of merger to his aggravated kidnapping charge. Because we reverse and vacate Defendant's aggravated kidnapping conviction, the issue is moot. There was a distinct possibility of merger under the common-law merger test set forth in State v. Finlayson , 2000 UT 10, 994 P.2d 1243, abrogated by State v. Wilder , 2018 UT 17, 420 P.3d 1064, but in any event, Defendant waived that argument by pleading guilty to the aggravated kidnapping charge.

      Upon Defendant's request, the district court appointed new counsel to represent Defendant in the plea withdrawal hearing. He is again represented by new attorneys on the current appeal.

      There is no requirement that he additionally show he would have received a more favorable outcome at trial. Compare Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (requiring, in the context of a guilty plea, that a defendant show he "would not have pleaded guilty and would have insisted on going to trial"), with Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring a defendant, in the context of a flawed trial or other proceeding, to demonstrate that "but for counsel's unprofessional errors, the result of the proceeding would have been different").

      Defendant also argues that the video was altered, asserting that numerous recordings were deleted from the camera. But Defendant's assertions are speculative and there is no evidence in the record that the key video was altered or establishing how deletion of the other recordings was prejudicial. At the plea withdrawal hearing, Trial Counsel testified that Defendant told him that the video had been altered, but that Defendant did not know how, only that he "felt that the police had altered" it. Defendant then told Trial Counsel that if he saw the entire video he would know how it had been altered. After the suppression hearing, where the entire video was played, Defendant no longer objected to the video and Trial Counsel assumed the issue was dropped.

      Defendant argues there is no evidence that he attempted to kill Mother because the ballistic and forensic "evidence" is contrary to Mother's testimony. But Defendant's purported ballistic and forensic evidence is entirely speculative, and Mother's testimony and the video recording were ample evidence to support the charge of attempted murder.

      We note that Defendant's entire argument section lacks citation to the record, and he asserts a number of facts without any citation to the record. Rule 24 of the Utah Rules of Appellate Procedure requires that the argument section of a brief contain "reasoned analysis supported by citations to legal authority and the record," Utah R. App. P. 24(a)(8), because it is "not our obligation ... to comb the record for evidence," In re W.A. , 2002 UT 127, ¶ 45, 63 P.3d 607 (quotation simplified). Although Defendant's statement of facts contains sufficient citation to the record, such citation does not relieve Defendant of his burden to demonstrate that the record also supports his assertions in the argument section.