text:
    STATE of Utah, Appellee, v. Sandra Dee BRUHN, Appellant.
    No. 20160382-CA
    Court of Appeals of Utah.
    Filed February 7, 2019
    Nathan Phelps, Draper, Attorney for Appellant
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   HAGEN, Judge:

¶1 Sandra Dee Bruhn appeals her convictions for possession of a controlled substance and operating or riding in a motor vehicle with an open container. Bruhn contends that her trial counsel provided ineffective assistance and requests that we reconsider our prior denial of her rule 23B motion to remand to the district court for fact-finding.

¶2 In her rule 23B motion, Bruhn argues that, because her trial counsel was aware that Bruhn could not remember the details of the events surrounding her criminal charges, he provided ineffective assistance by failing to request a competency evaluation before trial. Because knowledge of Bruhn's memory loss alone did not require her trial counsel, under the facts of this case, to request a competency evaluation and Bruhn has alleged no other facts that would have suggested that she was incompetent to stand trial, we decline to reconsider our denial of her rule 23B motion. And because Bruhn has conceded that she cannot prevail on appeal without a rule 23B remand, we affirm her convictions.

BACKGROUND

¶3 Two individuals were involved in a single-vehicle accident. When law enforcement arrived on the scene of the accident, they discovered a woman "inside the vehicle over on the passenger side in the front seat" and a man who "appeared to have been ejected [from the vehicle] that was lying on the left side of the vehicle towards the back of it" who later identified himself as the driver. After the driver and the woman were transported to the hospital, law enforcement searched the interior of the vehicle and the scattered debris. Documents in the vehicle glovebox identified Bruhn as the registered owner of the vehicle. Bruhn's driver license was also found in a purse in the debris, identifying Bruhn as the woman found in the passenger side of the wrecked vehicle.

¶4 In Bruhn's purse, an officer discovered a purple latex glove with the open end tied in a knot. In the process of removing the glove from the purse, the officer felt a crystal substance inside the glove. Suspecting that the crystal substance was methamphetamine, he cut the glove open and performed a field test that confirmed his suspicion.

¶5 In another bag found at the scene, law enforcement discovered three "dime baggies" of methamphetamine, a pipe for smoking methamphetamine, a prescription bottle of Metadate pills, a small baggie of marijuana, and a pipe for smoking marijuana. Among the debris around the wrecked car, officers also discovered an open container of alcohol inside a bag, plastic baggies and latex gloves inside another bag, and a prescription bottle of methylphenidate pills. According to the labels on both bottles of prescription pills, neither had been prescribed to Bruhn.

¶6 Based on the drugs, drug paraphernalia, and open container discovered at the accident scene, the State charged Bruhn with possession of methamphetamine, possession of Metadate, possession of methylphenidate, possession of marijuana, and operating or riding in a motor vehicle with an open container. Bruhn and the driver were tried together.

¶7 During opening statements, Bruhn's trial counsel told the jury that Bruhn "was seriously injured in [the] accident" and, as a result, "she lost a lot of her memory and not a lot of [it] ... has returned to her." Her trial counsel added that Bruhn "is going to be listening to what transpires today, look[ing] at the exhibits, and then she'll make a determination as to whether or not she can remember anything that she can offer to you by way of testimony." Bruhn ultimately chose not to testify. In closing argument, Bruhn's trial counsel again referenced Bruhn's memory loss and her injuries from the accident, stating, "I can tell you that Sandra Bruhn has gone through a lot on this, I've indicated that she couldn't testify because there is a lot of her memory that is gone from the accident." He urged the jury to "not assume that she knew what was in those bags just because her driver's license was in there" and suggested that there were questions regarding possession that "it would have been [helpful] to have been able to answer but we cannot." At the conclusion of the trial, the jury convicted Bruhn of all charges.

¶8 After trial but before sentencing, Bruhn submitted a letter to the district court in which she "admit[ted] possession of meth, possession of marijuana, and possession of the prescriptions." At her sentencing hearing, Bruhn stated that she was prepared to "take accountability" for her actions and admitted that she moved her identification into the purse "with all of the drugs." Bruhn also stated that she appeared to behave differently at sentencing than she had during her initial court appearances because she had previously been suffering from pneumonia. The district court sentenced Bruhn to prison and recommended that she receive substance abuse treatment while incarcerated.

¶9 Bruhn appealed her convictions, arguing that her trial counsel provided ineffective assistance of counsel in failing to request a competency evaluation prior to trial. Shortly after this court set a briefing schedule, Bruhn filed a petition for inquiry into competency on appeal in the district court and sought a stay in this court. This court granted her motion for a stay and the district court subsequently determined that Bruhn was competent to proceed on appeal.

¶10 Bruhn then filed a rule 23B motion to remand for fact-finding on her ineffective assistance of counsel claim, arguing that trial counsel "provided ineffective assistance of counsel by failing to seek a competency evaluation [before trial] ... and that ineffective assistance prejudiced [Bruhn] because it almost certainly allowed her to be convicted in an incompetent state [of mind]." Attached to the rule 23B motion was an affidavit from Bruhn and an affidavit from a psychologist. In Bruhn's affidavit, she stated, "After the accident, I suffered from memory problems. I had extreme difficulty remembering details of events throughout my life, and especially events immediately preceding the accident." She added, "I told my [trial counsel] about my memory issues" and "[a]t the time of trial, I still had memory problems." In a separate affidavit, the psychologist stated, "I believe there is a substantial probability that I would have found [Bruhn] incompetent at [the time of trial]" because "[t]he physical and psychological issues that still afflict [Bruhn] ... were present with greater severity [at the time of trial], as she had received a recent head injury, plus was not properly medicated and not receiving the medical care she needed."

¶11 We denied Bruhn's rule 23B motion because she had "failed to allege nonspeculative facts, which, if true, would demonstrate that her trial counsel's performance was deficient or that she was prejudiced by potential deficient performance." See Utah R. App. P. 23B.

ISSUE AND STANDARD OF REVIEW

¶12 Bruhn contends that her trial counsel provided ineffective assistance in failing to request a competency evaluation on her behalf. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Robertson , 2018 UT App 91, ¶ 21, 427 P.3d 361 (quotation simplified).

ANALYSIS

¶13 Bruhn argues that her trial counsel should have requested a competency evaluation because counsel was aware that Bruhn "continued to suffer from memory loss more than a year after a traumatic automobile accident," and that his failure to do so constituted ineffective assistance of counsel. In making this argument, Bruhn concedes that her ineffective assistance of counsel claim "requires a remand under rule 23B to succeed" and asks that we reconsider our prior denial of her rule 23B motion. But even taking the facts in Bruhn's rule 23B motion and accompanying affidavits to be true, Bruhn cannot show that her trial counsel provided ineffective assistance.

¶14 Rule 23B"provides a mechanism for criminal defendants to supplement the record with facts that are necessary for a finding of ineffective assistance of counsel but which do not appear in the record." State v. Griffin , 2015 UT 18, ¶ 17, 441 P.3d 1166. To show that she is entitled to a rule 23B remand, a criminal defendant must make a motion containing a "nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Utah R. App. P. 23B.

¶15 Here, the factual allegations in Bruhn's motion, even if true, would not support a determination that her trial counsel's performance was deficient. To show that her trial counsel rendered deficient performance, Bruhn "must overcome the strong presumption that counsel rendered constitutionally sufficient assistance by showing that counsel's conduct 'fell below an objective standard of reasonableness under prevailing professional norms.' " Lafferty v. State , 2007 UT 73, ¶ 12, 175 P.3d 530 (citation omitted) (quoting Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In evaluating whether the assistance provided by counsel was deficient, courts should consider "all the circumstances," id. (quotation simplified), and determine whether counsel "made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment," State v. Von Niederhausern , 2018 UT App 149, ¶ 26, 427 P.3d 1277 (quotation simplified).

¶16 We have previously acknowledged that counsel does not perform deficiently by failing to file a competency petition if he "had no basis to suspect [the defendant] was incompetent." State v. Lee , 2011 UT App 356, ¶ 7, 264 P.3d 239. Rather, counsel performs deficiently by failing to request a competency evaluation only if counsel has reason to know that the defendant lacks "a rational and factual understanding of the proceedings ... or of the punishment specified for the offense charged," or has an "inability to consult with ... counsel and to participate in the proceedings ... with a reasonable degree of rational understanding." See Utah Code Ann. § 77-15-2 (LexisNexis 2014) ; see also United States v. Dubrule , 822 F.3d 866, 881 (6th Cir. 2016) ("Counsel's failure to request the trial court to order a hearing or evaluation on the issue of the defendant's competency might render counsel's performance objectively unreasonable, provided there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant's competency." (quotation simplified)).

¶17 Even accepting the facts alleged in Bruhn's rule 23B motion as true, we are not persuaded that her trial counsel or all objectively reasonable counsel would have had a sufficient basis to suspect that she was incompetent. Bruhn claims that she was incompetent at the time of trial based on both her memory loss and the other "physical and psychological issues" referenced by the psychologist in her affidavit. Because Bruhn's attorney had no reason to believe that her memory loss impaired her ability to assist in her defense and was not aware of any other indicia of incompetency, we conclude that it was not unreasonable for her attorney to forgo requesting a competency evaluation in this case.

¶18 A defendant's abilities to "disclose to counsel pertinent facts, events, and states of mind" and to "testify relevantly" are among the factors that bear on a defendant's competence. Utah Code Ann. § 77-15-5(4)(a) (LexisNexis 2014). However, the inability to remember the details surrounding the charged crime does not necessarily suggest an inability to "consult with ... counsel and to participate in the proceedings ... with a reasonable degree of rational understanding." Id. § 77-15-2(2). In her rule 23B motion, Bruhn alleges that she "could not recount details that were related to the charges that were filed against [her]," but she does not allege facts connecting that memory loss to her ability to assist in her own defense. Without such allegations, there is no basis to conclude that a reasonable attorney would have viewed her memory loss as an impediment to her ability to assist in her own defense and an indication of possible incompetency.

¶19 The New Hampshire Supreme Court encountered a similar fact pattern in State v. Kincaid , 158 N.H. 90, 960 A.2d 711 (2008). In that case, the defendant claimed that the district court erred in denying his motion for a competency evaluation and hearing where the defendant claimed that he could not remember anything about the car accident that led to his arrest "and thus was unable to assist his counsel meaningfully in his defense at trial." Id. at 712. The supreme court noted that "a [district] court, in order to comply with due process, must order an evidentiary hearing on the issue of competency whenever a bona fide or legitimate doubt arises whether a criminal defendant is competent to stand trial." Id. (quotation simplified). However, the court held that the claim that a defendant has no memory of the event that led to his arrest, standing alone, "does not automatically raise bona fide or legitimate doubt triggering a due process right to a competency hearing." Id. at 714. "There are many ways a defendant can consult with and assist his trial counsel with a reasonable degree of rational understanding without necessarily remembering the details or circumstances of an event that led to his arrest." Id. Because the record contained no more than a representation that the defendant suffered amnesia, "the [district] court could reasonably have concluded that no bona fide or legitimate doubt arose as to the defendant's competency." Id.

¶20 Similarly, Bruhn's trial attorney could have reasonably concluded that Bruhn's memory loss raised no legitimate doubt as to her competency to stand trial. Although Bruhn argues that her trial counsel recognized that her memory loss "prevented [Bruhn] from properly participating in her own defense," this claim is not supported by any facts alleged in Bruhn's rule 23B affidavits nor by any evidence in the existing record. Bruhn points only to trial counsel's unsupported arguments to the jury, suggesting that, due to her memory loss, Bruhn could not provide testimony relevant to whether she possessed the drugs as charged. But that suggestion is belied by Bruhn's admissions at sentencing. Bruhn admitted "possession of meth, possession of marijuana, and possession of the prescriptions" and never claimed to have recovered this key memory after trial. Although she claims that her memory loss at the time of trial impaired her ability to "recount the details" surrounding the charges, she does not explain how those details would have been relevant to her defense. Absent any indication that Bruhn's memory loss impaired her ability to participate in her defense in some meaningful way, we cannot say that all reasonable attorneys would have sought a competency evaluation based on Bruhn's memory loss alone.

¶21 Moreover, Bruhn has not alleged that her counsel knew or should have known of any other indicators of Bruhn's incompetence. Although the psychologist's affidavit references other "physical and psychological issues," Bruhn makes no claim that these issues were "known to [trial counsel] at the time" of her trial. See State v. Biebinger , 2018 UT App 123, ¶ 17, 428 P.3d 36. Bruhn's affidavit does not allege that she told trial counsel about any physical or psychological problems other than her memory loss and nothing in the record or in the affidavits submitted in support of Bruhn's rule 23B motion suggests that she exhibited any other symptoms or behaviors that would have raised doubts as to her competency. See Lee , 2011 UT App 356, 264 P.3d 239 (considering whether the defendant's "behavior was anything out of the ordinary" in concluding that failure to raise a competency issue was not deficient performance). Accordingly, because "the facts that were known to [Bruhn's trial counsel] at the time [of trial] simply do not amount to obvious signals of incompetency," see Biebinger , 2018 UT App 123, ¶ 18, 428 P.3d 36, Bruhn has failed to show that her trial counsel performed deficiently by failing to request a competency evaluation.

CONCLUSION

¶22 Bruhn has failed to establish that her trial counsel performed deficiently in failing to request a competency evaluation under the circumstances of this case. Accordingly, we affirm.

      Metadate is a brand name for the prescription drug methylphenidate, a central nervous system stimulant used to treat conditions such as attention deficit hyperactivity disorder. National Capital Poison Center, ADHD Drugs: An Overview , https://www.poison.org/articles/2011-dec/adhd-drug-overview [https://perma.cc/49T4-UKM4].

      Because Bruhn's trial took place in December 2015, we cite to the version of the Utah Code of Criminal Procedure that was in effect at that time.

      We note the overwhelming consensus that the inability to remember the charged conduct, standing alone, is insufficient to establish that a defendant is incompetent to stand trial. See United States v. Andrews , 469 F.3d 1113, 1118-19 (7th Cir. 2006) (concluding that "amnesia alone does not render a defendant incompetent to stand trial"); United States v. Villegas , 899 F.2d 1324, 1341 (2d Cir. 1990) ("A defendant's amnesia about events surrounding the crime will not automatically render him incompetent to stand trial."); United States ex rel. Parson v. Anderson , 481 F.2d 94, 96 (3d Cir. 1973) (per curiam) (holding that "the fact that the defendant suffered amnesia as to the commission of the crime, does not, in and of itself, render the defendant incompetent to stand trial"); United States v. Mota , 598 F.2d 995, 998 (5th Cir. 1979) (explaining that "amnesia does not constitute incompetency per se to stand trial"); People v. Stahl , 2014 IL 115804, ¶ 27, 381 Ill.Dec. 461, 10 N.E.3d 870 (recognizing "that amnesia as to the events surrounding the charges against a defendant does not per se render him unfit to stand trial"); Ritchie v. State , 468 N.E.2d 1369, 1371 (Ind. 1984) ("[W]here a defendant understood charges against him and was fully aware of events since [the offense], ... he was competent to stand trial[.]"); State v. Kincaid , 158 N.H. 90, 960 A.2d 711, 714 (2008) (holding that a claim of amnesia "alone ... does not automatically raise a bona fide or legitimate doubt triggering a due process right to a competency hearing"); State v. Brooks , 25 Ohio St.3d 144, 495 N.E.2d 407, 413 (1986) (per curiam) (holding that "amnesia alone is not sufficient to render the accused incompetent to stand trial" and that the defendant's amnesia denied him neither effective assistance of counsel nor the opportunity to present a defense); Commonwealth v. Barky , 476 Pa. 602, 383 A.2d 526, 528 (1978) ("We do not believe that appellant's amnesia alone denied him either the effective assistance of counsel or the opportunity to present a defense."). Nevertheless, there may be cases in which knowledge of a defendant's amnesia would place a reasonable defense attorney on notice that a competency evaluation and hearing should be requested. In determining whether counsel's performance was deficient, the question is not whether Bruhn ultimately would have been found incompetent to stand trial, but whether all reasonably competent attorneys would have requested an evaluation under the circumstances.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    Norma ZEMLICKA, Appellant, v. WEST JORDAN CITY, Appellee.
    No. 20170136-CA
    Court of Appeals of Utah.
    Filed February 7, 2019
    Rodger M. Burge, Matthew J. Ball, Salt Lake City, and Terry E. Welch, Attorneys for Appellant
    Matthew David Church and Terry M. Plant, Salt Lake City, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judge Michele M. Christiansen Forster concurred. Judge Jill M. Pohlman dissented.
    Opinion
   ORME, Judge:

¶1 Norma Zemlicka appeals the district court's dismissal of her complaint against West Jordan City for failure to file a timely undertaking under a prior version of section 601 of the Utah Governmental Immunity Act (UGIA). We reverse.

INTRODUCTION

¶2 At the time Zemlicka filed her complaint against West Jordan City, section 601, since amended so as to avoid the problem presented by this case, required that "[a]t the time the action is filed , the plaintiff shall file an undertaking in a sum fixed by the court that is ... not less than $300." Utah Code Ann. § 63G-7-601(2) (LexisNexis 2016) (emphasis added). But this requirement is logistically impossible because the district court is tasked with fixing the amount of an undertaking in an action prior to the filing of the complaint that commences the action, which is the only way an undertaking in an amount fixed by the court could be filed at the same time that the complaint is filed. Yet experience suggests that district courts will not enter orders in connection with cases that have not yet been filed because the filing of the complaint is the mechanism by which an action is commenced and a judge is assigned. In effect, the now-superseded version of section 601 put the cart before the horse, requiring the court to fix the amount of an undertaking in an action before that action had even been filed.

¶3 Utah's federal courts apparently recognized this problem and set about to work around it through the adoption of a local rule that obviated the need for individualized judicial action in each case by fixing a standard amount for such undertakings and requiring plaintiffs, at the time the complaint is filed, to file a $300 bond with the clerk of the court. See DUCivR 67-1(c). And in 2017, the Utah Legislature apparently perceived the problem created by the prior version of the statute and amended section 601 along the lines of the local federal rule. Section 601 now provides: "At the time the action is filed, the plaintiff shall file an undertaking ... in the amount of $300, unless otherwise ordered by the court." Utah Code Ann. § 63G-7-601(2) (LexisNexis Supp. 2017). The 2017 amendment resolves the logistical impossibility created by the prior statute, more fully discussed below, and obviates the problem presented by this case in future actions brought against government entities.

BACKGROUND

¶4 On March 10, 2014, Zemlicka was driving in West Jordan City when the poorly lit street on which she was driving abruptly ended with a dirt ramp. As a result, her car was thrown into the air, and she was seriously injured. On February 18, 2016, having previously complied with the pre-suit notice requirements of UGIA, Zemlicka filed a complaint against West Jordan City for negligence. On March 14, 2016, the district court notified Zemlicka that a $300 undertaking was required. She filed a $300 bond that same day.

¶5 On October 6, 2016, nearly seven months later and while the parties were engaged in discovery-and after the applicable statute of limitations had run-West Jordan City moved to dismiss Zemlicka's suit for her failure to file an undertaking at the time her complaint was filed rather than a few weeks later when the court instructed her to file a $300 undertaking. See Utah Code Ann. § 63G-7-601(2) (LexisNexis 2016). The district court granted West Jordan City's motion and dismissed Zemlicka's suit, determining that Zemlicka "failed to strictly comply" with section 601 "because, 'at the time the action [was] filed,' the Plaintiff did not 'file an undertaking in the sum fixed by the court that is not less than $300.00.' " Zemlicka appeals.

ANALYSIS

¶6 Zemlicka contends that the district court erred in its interpretation of the prior version of section 601. "Statutory interpretation is a matter of law that we review for correctness," affording no deference to the district court's interpretation. Bilanzich v. Lonetti , 2007 UT 26, ¶ 10, 160 P.3d 1041.

¶7 Zemlicka argues that "[t]he plain and unambiguous language of the statute requires a court to first fix the amount of the undertaking, and then for the plaintiff to file an undertaking in said amount," asserting that the grammatical structure of the statute requires the court to set an undertaking amount for each suit "[a]t the time the action is filed."

¶8 West Jordan City, in contrast, argues that the statute, despite its terms, does not actually require the court to fix an undertaking amount in each case but instead "includes a default minimum undertaking amount of $300" that a plaintiff should know to file with the complaint. This contention seems to rely on what West Jordan City sees as "the well-settled rule" in Utah that a plaintiff should file a $300 undertaking when the complaint is filed to satisfy the statutory undertaking requirement. While this view effectively ignores the "in a sum fixed by the court"

requirement, we recognize that the Utah Supreme Court has, in passing, stated that section 601 requires a plaintiff to "include an undertaking at the time of filing," Marziale v. Spanish Fork City , 2017 UT 51, ¶ 21, 423 P.3d 1145, but the definitive interpretation of the applicable version of section 601 is an issue of first impression, see also Craig v. Provo City , 2016 UT 40, ¶¶ 6, 40, 389 P.3d 423 (noting that the complaint was filed "without the $300 bond required by" section 601).

¶9 When interpreting a statute, "we first examine the statute's plain language and resort to other methods of statutory interpretation only if the language is ambiguous." State v. Masciantonio , 850 P.2d 492, 493 (Utah Ct. App. 1993). In so doing, we "presume that the Legislature used each term advisedly, and we give effect to each term according to its ordinary and accepted meaning." Versluis v. Guaranty Nat'l Cos. , 842 P.2d 865, 867 (Utah 1992).

¶10 Section 601, as previously phrased, clearly and unambiguously required a plaintiff, at the time of filing the complaint, to file an undertaking in an amount already fixed by the court. See Utah Code Ann. § 63G-7-601(2) (LexisNexis 2016). Although an undertaking could not be less than $300, the Legislature purposely left the amount of an undertaking in each case to be determined by the district court prior to the filing of an action , using the past tense form of the verb "fix," i.e., "fixed." Id. See also Hansen v. Salt Lake County , 794 P.2d 838, 840 n.4 (Utah 1990) (noting that, under the statute, the district court initially fixes the undertaking amount). Cf. Zamora v. Draper , 635 P.2d 78, 81 (Utah 1981) (stating that similar statutory language allows the court flexibility to fix the amount of the bond in accordance with the plaintiff's circumstances).

¶11 Because the statute by its plain terms required a logistical impossibility, we cannot adopt the simplest plain reading of the statute. We therefore must embrace a reasonable interpretation of section 601, one that accepts the legislative intent to protect governmental entities from frivolous suits by requiring an undertaking, while mandating that courts, in the exercise of their sound discretion, fix the amount of the undertaking in each case. See Utah Code Ann. § 63G-7-601(2) ; Hansen , 794 P.2d at 840. Our primary goal in statutory interpretation "is to evince the true intent and purpose of the Legislature," Marion Energy, Inc. v. KFJ Ranch P'ship , 2011 UT 50, ¶ 14, 267 P.3d 863 (quotation simplified), "requir[ing] us to consider what the figurative 'legislative mind' would have intended had it adverted to the particular circumstances we are confronted with for adjudication." ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, ¶ 17, 245 P.3d 184 (quotation simplified). "In doing this, we take into account the purpose of the statute and what interpretation and application will best serve that purpose in practical operation." Id. (quotation simplified).

¶12 Under the previous version of the statute applicable in this case, the phrase, "[a]t the time the action is filed, the plaintiff shall file an undertaking," seemingly required plaintiffs to file an undertaking at the time they filed their complaint. But the undertaking must be in an amount "fixed by the court," and as we have already pointed out, a district court will not fix the amount of the undertaking before a complaint has been filed, thereby actually commencing the action. Because "time" is "a period during which something (as an action, process, or condition) exists or continues," Time , Webster's Third New International Dictionary 2394 (1993), and because the prior version of section 601 imposed on the court the duty to fix the amount of the undertaking, an action, once filed in the technical sense, will not be considered filed and effective for purposes of section 601 until the court fixes the amount of the undertaking, whereupon the plaintiff is obliged to post an undertaking in that amount. Accordingly, once the complaint is filed, the court is obligated to fix an undertaking in an amount that is discretionary with the court but which may not be "less than $300." Utah Code Ann. § 63G-7-601(2). Once the amount is fixed by the court, the plaintiff must promptly file an undertaking upon entry of the court's order fixing the amount which, of necessity, will be a time later than when the complaint was filed. Cf. Kiesel v. District Court , 96 Utah 156, 84 P.2d 782, 783-84 (1938) (interpreting statutory language that required a plaintiff to "prepare and file with, and at the time of filing, the complaint in any such action, a written undertaking" to mean "contemporaneously with the [filing of the] complaint"). An undertaking must therefore be filed as soon as the amount is fixed by the court, or the plaintiff risks having the suit dismissed. See Hansen , 794 P.2d at 840 (providing that "[f]ailure to pay the undertaking is an affirmative defense").

¶13 Here, on March 14, 2016, the court notified Zemlicka that she needed to post a $300 undertaking. She did so immediately. But, in its decision granting West Jordan City's motion to dismiss, the district court stated that it was merely advising Zemlicka of the undertaking requirement, not fixing the amount of the undertaking. We will not set aside a factual finding unless it is "without factual support in the record or if [we] on the entire evidence [are] left with the definite and firm conviction that a mistake has been made." Jouflas v. Fox Television Stations, Inc. , 927 P.2d 170, 174 (Utah 1996) (quotation simplified). Because section 601 required the court to fix the amount of the undertaking, and there was nothing in the record establishing that the court fixed the amount before March 14, 2016, the court erred in implicitly determining that the amount was set before this date. On the contrary, the court is deemed to have fixed the amount on March 14, 2016, less than a month after the action was filed, when its clerk notified Zemlicka that she must post a $300 undertaking. Zemlicka was required to file her undertaking contemporaneously with the court fixing the amount of the undertaking, which she did by filing it later that same day.

¶14 Given the legislative intent behind section 601, West Jordan City's objection to Zemlicka's late undertaking "is at best but a technical one," because "[t]he only legitimate advantage [West Jordan City] was entitled to was protection from loss of costs." See Bunting Tractor Co. v. Emmett D. Ford Contractors, Inc. , 2 Utah 2d 275, 272 P.2d 191, 192 (1954). But Zemlicka "stands to lose forever the right to pursue what might well be a meritorious cause of action. It would have been one thing to dismiss the action without prejudice and require [Zemlicka] to incur the additional expense and inconvenience of filing anew, but it is quite another to dismiss with prejudice and completely, effectively and permanently bar [her] from remedy." See id. at 192-93.

¶15 We conclude that Zemlicka complied with the requirements of the version of section 601 applicable to her case, as properly understood. And we again note that the problem presented in this case will be avoided in the future because in the amended version of section 601, the Legislature has fixed the amount of the initial undertaking to be filed in such cases.

CONCLUSION

¶16 We reverse the district court's grant of West Jordan City's motion to dismiss because Zemlicka complied with the prior version of section 601. We remand the case for resolution on its merits.

      Although the Legislature recently amended the language of the statute at issue, the new statutory language does not guide our interpretation of the prior version of section 601. The statutory language at issue in the case before us is unambiguous, and "we seek guidance from the legislative history and relevant policy considerations only if the statutory language is ambiguous or unclear." Harvey v. Cedar Hills City , 2010 UT 12, ¶ 15, 227 P.3d 256 (quotation simplified). Nonetheless, the amendment reflects the Legislature's realization that the prior version of the statute was problematic, and future cases will be governed by the more sensible amended version of section 601 rather than the prior version that applies in this case.

      "On appeal from a motion to dismiss, we review the facts only as they are alleged in the complaint. We accept the factual allegations as true and draw all reasonable inferences from those facts in a light most favorable to the plaintiff." State v. Apotex Corp. , 2012 UT 36, ¶ 3, 282 P.3d 66 (quotation simplified).

      Zemlicka also contends that the district court erred in dismissing her complaint because West Jordan City waived any issue about the timing of her filing of the undertaking by proceeding with discovery and waiting seven months before raising an objection to when the undertaking was filed. Because we reverse on the basis of statutory interpretation, we do not reach the question of whether West Jordan City waived any defense premised on the timeliness of the undertaking's filing.

      Utah's federal courts complied with the prior version of section 601 by requiring a plaintiff to file a $300 undertaking at the time of filing a complaint. See Rippstein v. Provo City , 929 F.2d 576, 578 (10th Cir. 1991) ; Mglej v. Garfield County , No. 2:13-CV-713, 2014 WL 2967605, at *2 (D. Utah July 1, 2014). But the federal courts did not view this as an automatic function of the statute. Rather, to resolve the logistical impossibility presented by the statute, the Utah federal district court created a local rule, essentially fixing the undertaking amount at $300 in all cases. See DUCivR 67-1(c). See also Markus B. Zimmer & Louise S. York, Negotiating the Amended Federal Court Local Rules of Practice , 10 Utah Bar Journal 37, 38 (Sept. 1997) (stating that this rule amended an earlier rule requiring "the filer to obtain a signed order from the assigned judge at the time of case opening to set the amount of bond and to authorize the clerk to accept the funds ... often caus[ing] delay and inconvenience for counsel filing the actions and for the judge signing the order"). This rule complies with the prior version of section 601, applicable in this case but since amended, because the court has "fixed" the amount of the undertaking in each case, albeit by court rule applicable across the board instead of via judicial consideration in each individual case.

      This does not mean that the plaintiff is expected to file the undertaking at the same moment the court fixes the amount. And given that electronic filing is the typical method for filing a complaint and issuing an order while, as we were advised at oral argument, bonds and other undertakings are memorialized in paper documents that must be physically presented to the court, the filing of the undertaking will necessarily follow the issuance of the order fixing the amount even as that order will necessarily follow the filing of the complaint. Therefore, the filing of an undertaking should promptly follow the court's fixing of the amount of the undertaking. And in this case, Zemlicka filed her bond later that same day.

      "Contemporaneously" means "at or near the same time." Contemporaneously , Webster's Third New International Dictionary 491 (1993).


author: MORTENSEN, Judge:

text:
    BOUNTIFUL CITY, Appellee, v. Nathan David BAIZE, Appellant.
    No. 20170155-CA
    Court of Appeals of Utah.
    Filed February 14, 2019
    Scott L. Wiggins, Salt Lake City, Attorney for Appellant
    Jacob L. Fordham, Attorney for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Utah's criminal law recognizes that a parent may discipline a child. Criminal sanctions may attach, however, when parental discipline exceeds the bounds of reasonableness or where serious physical injury results. After a bench trial, during which the court heard evidence that Nathan David Baize spanked his four-year-old son with enough force to leave a bruise in the shape of a handprint, the court found Baize guilty beyond a reasonable doubt of misdemeanor level child abuse. Baize appeals, claiming the court misconstrued the facts and misapplied the law. We affirm.

BACKGROUIND

The Incident of Abuse

¶2 In late June 2016, Baize had his four-year-old son (Victim) for weekend parent-time. Baize and Victim's mother (Mother), are divorced and have joint custody of Victim. Victim spends every other weekend with Baize.

¶3 On the weekend in question, Victim had been acting up, and Baize and Mother exchanged emails about this behavior. Mother recalled that the emails described Victim as "yelling and screaming, washing out. He was saying terrible things, he was going to hurt people. He was mad. He wanted to go home. He was upset. Completely distraught."

¶4 Victim was "throwing temper tantrums, using foul language, [and] saying that he wanted [Baize] dead" on the day of the abuse. The bad behavior escalated during a car ride to a grocery store. Victim began kicking and punching his grandmother, who was with Baize and Victim. It took about an hour to calm down Victim enough to get him strapped in his car seat. Even then, Victim continued to jump up and down, "slamming his rear end on the bottom of the car seat."

¶5 Once they got home, Victim continued to fight with Baize. After trying various disciplinary interventions, Baize determined that his last resort was to spank Victim. Baize put Victim over his knee and warned him that he was going to be spanked unless he calmed down. When Victim continued to swear and tell Baize that he hated him, Baize spanked him one time. Baize gave Victim additional warnings, and then spanked him a second and third time.

¶6 Eventually, Baize called Mother and asked that she pick up Victim several hours earlier than the planned exchange. While changing Victim's clothes that evening, Mother noticed bruising on his bottom. When she asked Victim what had happened, he responded, "Don't talk to me about this," and requested that everyone leave his room. A few minutes later, Victim disclosed to Mother what had happened. Mother immediately called the Division of Child and Family Services (DCFS).

¶7 The next morning, Mother took photographs of the bruising on Victim's bottom, one of which was introduced as evidence. Mother testified that the photograph accurately depicted the injuries she saw on Victim: "I see fingerprints. I see, that are bruised, bruising, fingerprints. There are lines on his bottom, bruising. There [are] little spots on his bottom that are bruised." Mother stated that she "was pretty sick to [her] stomach" when she saw Victim's injuries.

¶8 An investigator from DCFS came by the day after the spanking and advised Mother to call the police about the incident. A detective (Detective) from the Bountiful City Police Department was assigned to the case. Detective arranged an interview for Victim at the Children's Justice Center (CJC Interview). After viewing the photographs and hearing Victim's CJC Interview, Detective determined that he needed to interview Baize.

¶9 Detective testified that the photograph introduced at trial depicted signs of redness consistent with diaper rash on Victim's bottom, but he also observed that it showed a yellowish bruise in the shape of "a finger or a handprint." Detective noted that there were no reports indicating that Victim needed medical attention for injuries related to the abuse. Detective also testified that Baize appeared to be in control of what he was doing when he spanked Victim.

¶10 Bountiful City (the City) charged Baize with child abuse in violation of Utah Code section 76-5-109(3)(c). Baize pled not guilty and requested a bench trial.

The Proceedings

¶11 The City argued that it is not "illegal or wrong" to discipline a child by spanking, but "when you spank a child to the point where there is physical injury is where you come to a Class C misdemeanor child abuse." The City said that Baize "should be aware that there may be bruising, that [he] may injure a child. [He is] putting [his] hands on a child. It's obvious to all of us that there's a risk that [he] may injure the child if [he] spank[s] the child too hard." The City further noted that it was not arguing that Baize "committed child abuse by spanking [Victim], once[,] twice[,] or three times. That's ... within his realm as a parent to do. However, it's clear that he left an injury on the child. A handprint on the child's behind, buttocks is clearly caused only by spanking." The City concluded, "We are not here to stand up and tell the defendant how to parent his child or whether spanking is right or wrong. None of that is in play. It comes down to the fact that while disciplining his child [he] left a handprint on him, bruised him .... That's it."

¶12 Baize's trial counsel argued that spanking Victim "was not a gross deviation from the standard of care based on facts [and] specific evidence that [was introduced]. ... [T]his spanking was not done out of anger. It was in a controlled manner. And it was as a result of trying to help the child calm down and get under control." Rather than admitting he struck Victim too hard, Baize's counsel argued that "[Baize] did not take an unjustifiable risk to cause bruising." Rather, "as a parent, the only way that he had left [to discipline] in his repertoire ... [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care."

¶13 After hearing the evidence, including testimony from Mother and Detective, and after hearing the arguments, the court concluded:

The statute involved as we all understand is [ Utah Code section] 76-5-109. Any person who inflicts upon a child physical injury-I'm just reading the pertinent part-is guilty of an offense as follows. Part C, if done with criminal negligence the offense is a Class C misdemeanor. And, again, I previously read the definition of criminal negligence. I won't read that again. It is the lowest of the four mens rea standards that are recognized in Utah State law.
I further note that physical injury is defined under [ section] 76-5-109. And I'll just read a small part of that. "Physical injury means an injury to or a condition of the child which impairs the physical condition of the child, including, 1, a bruise or other contusion of the skin." There are other-there is a further definition of physical injury, but I'm just going to stop there for purposes of this case.

The court continued:

[C]ertainly, a parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise. It was just too hard. It was too hard. And in light of that, I will enter a judgment for a conviction for the Class C misdemeanor, inflicting physical injury on a child with criminal negligence, finding proof beyond a reasonable doubt based on the testimony of the two witnesses.

¶14 The judgment on the verdict was entered, and Baize was sentenced. Baize now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Baize raises two issues on appeal. First, Baize claims that the district court misinterpreted and misapplied Utah Code section 76-5-109 by concluding that he committed child abuse. "The correct interpretation of a statute is a question of law and is reviewed for correctness." State v. Larsen , 865 P.2d 1355, 1357 (Utah 1993). Because it was not preserved at trial, Baize raises this issue pursuant to plain error. To establish the existence of plain error, Baize must show "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Dunn , 850 P.2d 1201, 1208-09 (Utah 1993).

¶16 Second, Baize claims that his trial counsel deprived him of effective assistance by failing to raise a defense of justification as provided in Utah Code section 76-2-401. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Beckering , 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).

ANALYSIS

I. Interpretation and Application of Utah Code Section 76-5-109

A. The Statute's Plain Language

¶17 On appeal, Baize argues that the district court erred in interpreting and applying Utah Code section 76-5-109. Specifically, Baize asserts that "the court failed to read subsections (3) and (8) together as required by the language of the statute." Had the court properly considered the two subsections, Baize contends, it would have concluded his actions were justified and did not constitute child abuse.

¶18 "When interpreting statutes, we determine the statute's meaning by first looking to the statute's plain language, and give effect to the plain language unless the language is ambiguous." State v. Schofield , 2002 UT 132, ¶ 8, 63 P.3d 667 (cleaned up). In addition, "the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters." Id. (cleaned up). Contrary to Baize's assertions, we conclude that the district court engaged in just such an integrated analysis in reaching its decision that Baize committed child abuse.

¶19 The portion of the statute Baize violated states that "[a]ny person who inflicts upon a child physical injury or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense ... if [the injury is] done with criminal negligence." Utah Code Ann. § 76-5-109(3)(c) (LexisNexis 2017). " 'Physical injury' means an injury to or condition of a child which impairs the physical condition of the child, including ... a bruise or other contusion of the skin ...." Id. § 76-5-109(1)(e)(i).

¶20 Baize correctly asserts that Utah Code section 76-5-109(3) must be read in harmony with section 76-5-109(8), which states that "[a] person is not guilty of an offense under this section for conduct that constitutes: (a) reasonable discipline or management of a child, including withholding privileges; [or] (b) conduct described in Section 76-2-401." Id. § 76-5-109(8)(a) -(b). Utah Code section 76-2-401 states that a "defense of justification" for alleged child abuse may be claimed when "the actor's conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis," unless such conduct results in serious bodily injury, serious physical injury, or the death of the minor. Id. § 76-2-401(1)(c) ; see also id. § 76-2-401(2). Thus, the statutes create a structure where a parent-defendant may be convicted of child abuse when he causes physical injury to a child, including bruising, unless the conduct in question constituted reasonable discipline.

¶21 Baize argues on appeal that the district court failed to undertake the "reasonable discipline" analysis required by Utah Code section 76-5-109(8)(a). Specifically Baize states, "There is nothing in the record demonstrating that the court read subsection (3) of section 76-5-109 together with subsection (8) as required by the plain language of the statute."

¶22 We acknowledge that the court did not explicitly invoke the numbers of the two subsections in interpreting and applying the statute. But it is nevertheless clear from the record that the court conducted such an analysis in applying the statute to Baize's conduct. The court stated:

[A] parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise . It was just too hard. It was too hard.

(Emphasis added.) Accordingly, the court focused on the fact that Baize was Victim's parent, a status which is relevant under Utah Code section 76-5-109(8).

¶23 While the court never explicitly said Baize's spanking of Victim was "reasonable" or "unreasonable," it did say his conduct was "a gross deviation from the standard of care that an ordinary person would exercise." This is simply a variation in nomenclature describing the concept of reasonableness. If anything, the court's finding is more specific than simply saying the word "unreasonable." We therefore consider Baize's argument that the district court failed to read the two subsections together to be overly simplistic. Baize ignores that the district court did undertake such an analysis, albeit using different but equivalent language than that promoted by Baize. And because the district court analyzed Baize's conduct and determined that it was a "gross deviation" from the ordinary "standard of care," we conclude that the court considered the "reasonable discipline" analysis required by Utah Code section 76-5-109(8).

B. Reasonable Discipline of a Child

¶24 Alternatively, Baize argues that "the court's determination that the spanking of [Victim] was unreasonable is contrary to common law principles that dictate punishment and chastisement are to be considered in light of the age, condition and disposition of the child, and other surrounding circumstances." Baize would have us understand that "discipline by a parent-under circumstances such as that in the instant case-is reasonable so long as the discipline is administered in a good faith manner that does not inflict serious physical injury on the child." In essence, Baize argues that parental discipline is reasonable provided that it (1) is done in good faith and (2) does not cause serious bodily injury.

¶25 We reject Baize's attempt to define reasonable parental discipline. First, nowhere do the statutes in question use the language, "administered in a good faith manner," as a standard for reasonableness. Baize has attempted to add a "good faith" prong to the reasonableness standard without directing us to supporting case law or other legal authority. Second, Utah Code section 76-5-109 explicitly states that any person who inflicts "physical injury" on a child is guilty of an offense. Utah Code Ann. § 76-5-109(3) (LexisNexis 2017). In no way do any of the statutes in question suggest that parental discipline resulting in mere physical injury to a child is by definition reasonable, while only discipline resulting in serious physical injury is unreasonable. Rather, the statutes simply establish that the defense of justification is unavailable to a parent who causes serious physical injury in disciplining a child-not that inflicting something less than serious physical injury is always reasonable. See id. § 76-2-401(1) - (2). Thus, we decline to follow Baize's logic to the inevitable conclusion that a parent who physically injures his child while inflicting discipline in good faith must be acting reasonably.

¶26 Thus, we conclude that the district court did not plainly err in its interpretation and application of the relevant statutes.

II. Ineffective Assistance of Counsel

¶27 Baize argues that his trial counsel deprived him of his right to effective assistance of counsel by failing to bring the justification defense identified in Utah Code section 76-2-401 to the district court's attention. The United States Supreme Court established a two prong test to determine if counsel's performance is deficient. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test, as expressed by our supreme court, requires a defendant to "show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant." Bundy v. Deland , 763 P.2d 803, 805 (Utah 1988). But "[i]t is not necessary to address both parts of the test when the defendant makes an insufficient showing on one." State v. Veale , 2012 UT App 131, ¶ 5, 278 P.3d 153. Because we conclude that Baize has failed to show his counsel performed deficiently, we limit our analysis to the first prong.

¶28 Baize asserts that his counsel's ineffective assistance is demonstrated by the district court's failure "to read and analyze subsection (3) of section 76-5-109 together with subsection (8)." Baize argues that his counsel "failed to recognize the requirement of reading these provisions together." Yet Baize admits that his counsel's "arguments at closing .... were essentially consistent with the defense of justification."

¶29 Baize's ineffective assistance argument is without merit precisely because his trial counsel-as Baize admits-argued for a justification defense and the district court considered justification as provided for in Utah Code section 76-5-109(8). See supra ¶ 23.

Trial counsel stated that Baize did not "take an unjustifiable risk to cause bruising .... [T]he only way that he had left [to discipline] in his repertoire ... [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care." As with the analysis of the district court, trial counsel was under no obligation to refer to specific sections of the Utah Code in making the justification defense argument. It is evident from the record that Baize's trial counsel effectively communicated the existence of the justification defense without making explicit reference to the subsections of the statute. Thus, we conclude that Baize has failed to show ineffective assistance merely because his trial counsel did not explicitly and simultaneously invoke specific defenses available under Utah Code section 76-5-109(8).

CONCLUSION

¶30 Baize's argument that the district court misconstrued the facts and misapplied the law fails. On the record here we see no error in the district court's analysis, and we further conclude that Baize has failed to show deficient performance by his attorney.

¶31 Affirmed.

      On appeal, we construe the facts in the light most favorable to the verdict. See State v. Miller , 2017 UT App 171, ¶ 2 n.1, 405 P.3d 860.

      In a separate rule 23B motion filed simultaneously with his brief, Baize seeks remand to the district court to make findings and conclusions that his trial counsel was ineffective in failing to investigate and research the CJC Interview. "A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." State v. Lee , 2014 UT App 4, ¶ 5, 318 P.3d 1164 (cleaned up). And to "prevail on grounds of ineffective assistance, a defendant must demonstrate, first, that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment, and second, that counsel's deficient performance was prejudicial-i.e., that it affected the outcome of the case." State v. Hand , 2016 UT App 26, ¶ 2, 367 P.3d 1052 (cleaned up). Nowhere in Baize's motion does he demonstrate nonspeculative facts that would support a determination that trial counsel was ineffective or any resulting prejudice. The motion and accompanying affidavit make conclusory allegations that the CJC Interview contained critical evidence, but nowhere does Baize identify that evidence. Thus, we decline to grant remand on Baize's separate rule 23B motion.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

      As the statute makes clear, the defense is available if the conduct is (1) reasonable and (2) results in only physical injury. Utah Code Ann. § 76-2-401 (LexisNexis 2017) ; see also id. § 76-5-109(1)(e) (defining physical injury). The defense is unavailable for reasonable discipline that results in serious bodily injury, serious physical injury, or the death of a minor. See id. § 76-2-401(2) ; see also id. § 76-1-601(11) (defining serious bodily injury); id. § 76-5-109(1)(f) (defining serious physical injury).


author: HARRIS, Judge:

text:
    Holly Rebecca ROSSER, Appellee, v. Ronald Lee ROSSER, Appellant.
    No. 20170736-CA
    Court of Appeals of Utah.
    Filed February 14, 2019
    Steven W. Beckstrom, Salt Lake City, Attorney for Appellant
    Stephen D. Spencer, Salt Lake City, Attorney for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Amended Opinion

      This Amended Opinion replaces the Opinion in Case No. 20170736-CA that was issued on January 10, 2019. After our original opinion issued, Ronald filed a petition for rehearing, and we called for a response. We grant the petition for the limited purpose of clarifying Ronald's entitlement to an award of attorney fees, as reflected in footnote 9 herein.

   HARRIS, Judge:

¶1 Ronald Lee Rosser and Holly Rebecca Rosser divorced in 2016 pursuant to a stipulated decree of divorce that was the result of mediation. One of the points of contention in their divorce case was how the parties would divide their 2015 tax obligations. At the conclusion of the mediation, the parties apparently agreed to split the 2015 tax liability equally. A few weeks later, however, both parties executed a stipulated decree of divorce that obligated Holly to "pay any tax liabilities ... for the year 2015." Later, after Ronald refused to pay any of the outstanding 2015 tax obligation, Holly obtained an order to show cause and asked the district court to hold Ronald in contempt of court for refusing to pay his share of the 2015 taxes. The court granted Holly's request and found Ronald in contempt. Ronald now appeals, and we agree with Ronald that the actions he was found to have taken do not constitute statutory contempt of court. Accordingly, we vacate nearly the entirety of the district court's contempt order, and remand this case for further proceedings.

BACKGROUND

¶2 After twenty-five years of marriage, Holly and Ronald separated in 2014, and Holly later petitioned for divorce. Over the course of their marriage, the parties acquired various assets, including several vehicles, a residence in Panguitch, Utah, two other parcels of real property, and a number of franchise restaurants that were owned by a company in which Holly and Ronald each held a 50% stake. In addition to these assets, the parties also had certain debts, including a $ 29,902.71 tax obligation owed to the IRS for the 2015 tax year. The parties took opposing positions regarding the division of some of these assets and liabilities.

¶3 In an attempt to resolve their differences prior to trial, the parties agreed to participate in mediation on June 16, 2016. During that mediation session, the parties were able to come to an agreement regarding all of their issues, including the 2015 tax obligation. This consensus was memorialized in a three-page written agreement (the Mediation Agreement) that was signed by all parties immediately upon completion of the mediation. With regard to the tax obligation, the Mediation Agreement states as follows: "IRS debt from 2015, 50% Ron and 50% Holly." The parties also agreed that Ronald would be entitled to certain "rebates" that the couple's business received.

¶4 In the weeks following the mediation, Holly paid her half of the 2015 tax obligation. For reasons unclear from the record, Ronald did not. However, Ronald did contact the parties' accountant and identify several additional tax deductions that he thought could potentially reduce the parties' 2015 tax liability. Acting on Ronald's instructions, in July 2016 the accountant prepared an amended 2015 tax return for Ronald and Holly. In preparing that return, however, the accountant mistakenly assumed that the entire previous 2015 tax obligation of $ 29,902.71 had already been paid, when in reality only half of it (Holly's half) had actually been paid. As a result, the amended tax return indicated that not only did Ronald and Holly not owe any taxes for 2015, they were actually due a tax refund of approximately $ 7,900. Holly would later testify that, operating on the assumption that Ronald had paid his half of the pre-existing 2015 tax obligation as she had done, she believed that the amended returns were accurate and that the parties were in fact owed a refund. For his part, Ronald would later testify that he also believed the amended tax returns were accurate, but premised this belief on a different assumption: that Holly had paid the entirety of the 2015 tax obligation in consideration for other income she had negotiated from him. Apparently both under the belief that the amended returns were accurate, the parties signed those returns on or about August 22, 2016.

¶5 On or about August 4, 2016-after the amended tax returns had been prepared and reviewed, but before either party actually signed them-the parties and their attorneys all signed a Stipulated Motion for Entry of Findings of Fact and Conclusions of Law and Final Decree of Divorce. With respect to the 2015 tax obligation, that stipulation stated-in contrast to the Mediation Agreement-that Holly "shall be solely entitled to receive any refund resulting from the amended returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015." A few days later, on August 8, 2016, the district court signed a Final Decree of Divorce (the Decree) in accordance with the parties' stipulated motion. Under the terms of the Decree, Holly "shall be solely entitled to receive any refund resulting from the amended [2015 tax] returns, and shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015." The Decree also states that Ronald is entitled to the rebates as agreed upon at the mediation.

¶6 Holly later discovered that the amended tax returns were inaccurate, and that instead of being entitled to a $ 7,900 refund for tax year 2015, the parties still owed $ 7,174.98. Under the terms of the recently-entered Decree, Holly was obligated to make this payment, but she considered that result unfair since she had already paid her half of the 2015 tax obligation, as the parties had agreed at mediation, and Ronald had not. In part because she felt as though Ronald owed her money related to the 2015 tax obligation, she declined to pass along to Ronald certain rebate checks she received to which Ronald was entitled under the terms of the Decree.

¶7 On November 21, 2016, Holly filed a Motion for Order to Show Cause, alleging that Ronald had defrauded her and asking the court to order Ronald to pay his share of the parties' 2015 tax obligations as well as her attorney fees in bringing the motion. A few weeks later, Ron filed his own Motion for Order to Show Cause, alleging that Holly had willfully failed to comply with the provision of the Decree that concerned the rebates. Eventually, the district court scheduled both motions for an evidentiary hearing. During that hearing, Holly testified that Ronald had misled her into believing that he had paid his share of the parties' 2015 tax obligation assigned to him pursuant to the Mediation Agreement. Ronald, by contrast, testified that Holly was not only aware that he had not done so, but that after mediation she had agreed to pay the entirety of the tax obligation. With regard to the rebates, Holly acknowledged that she had received rebate checks to which Ronald was entitled under the Decree, but stated that she had not passed those along to Ronald because she felt that he owed her money related to the 2015 tax obligations.

¶8 At the conclusion of the hearing, the court found that Ronald deceived Holly by allowing her to believe that he had paid his share of the tax obligation, and that Holly had not in fact agreed to pay it herself. The court then found Ronald in contempt of court for "his deliberate deceit and failure to act as agreed between the parties on June 16, 2016," and ordered Ronald to pay Holly approximately $ 15,000 plus reasonable attorney fees, which were later determined to be $ 4,000. The court also found that Holly had "failed to make" the rebate payments to Ronald as required by the Decree, but that Holly's conduct "did not intentionally violate the Decree" because Holly was "merely reacting to [Ronald's] deceit." Accordingly, the court allowed Holly to "offset" the rebate amounts she owed Ronald against the amount it determined Ronald owed her on the tax issue. After quantifying the amount of attorney fees to which it believed Holly was entitled, the court eventually entered judgment against Ronald in the amount of $ 18,951.11, but stated, in the judgment, that Holly "may apply" the "rebates toward the judgment and thus give [Ronald] credit" for them.

ISSUE AND STANDARD OF REVIEW

¶9 Ronald appeals from that judgment, and asks us to consider whether the district court erred in holding him in contempt. When reviewing a district court's decision to find a party in contempt, "we review the district court's findings of fact for clear error and its legal determinations for correctness." LD III LLC v. Davis , 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation simplified). Ronald's chief complaint with the district court's contempt determination is a legal one: Ronald contends that the facts alleged by Holly, even if true, cannot constitute statutory contempt of court as a matter of law. This is a legal question that we review for correctness. Id.

ANALYSIS

¶10 Under Utah statutory law, a court has authority to hold a person in contempt of court for any one of twelve enumerated reasons. See Utah Code Ann. § 78B-6-301 (LexisNexis 2012). Ronald contends that none of the twelve grounds apply here, and that therefore the district court was without statutory authority to hold him in contempt. We agree with Ronald.

¶11 In this case, while it is clear that the district court found that Ronald was in contempt of court, it is unclear which of the twelve statutory grounds the court relied upon. In its order, the court stated that Ronald was "in contempt, due to his deliberate deceit and failure to act as agreed between the parties on June 16, 2016." The court gave no other indication of the legal (as opposed to the factual) grounds for its determination that Ronald was in contempt of court.

¶12 Holly asserts that the district court implicitly relied upon two of the twelve statutory grounds for contempt: (a) the fourth one, which allows a court to find a "party to an action" in contempt for "deceit, or abuse of the process or proceedings of the court"; and (b) the fifth one, which allows a court to find a person in contempt for "disobedience of any lawful judgment, order or process of the court." Id. § 78B-6-301(4), (5). We are not convinced that either of these grounds was appropriately invoked in this case.

¶13 The court did mention Ronald's "deliberate deceit" as part of its reason for holding Ronald in contempt of court. But the deceit the court described in its findings was not deceit Ronald committed upon the court; rather, it was deceit Ronald apparently committed upon Holly by not telling her that he had failed to pay his share of the parties' 2015 tax obligation. In this case, there is no allegation, let alone a finding, that Ronald committed deceit or fraud on the court , and in our view subsection (4) of the contempt statute must be interpreted to include only deceit committed on the court.

¶14 We reach that conclusion after reviewing the provision in context. First, subsection (4)-unlike other subsections-is by its own terms limited to the actions of "part[ies] to the action or special proceeding." See id. § 78B-6-301(4). Second, "deceit" is part of a short list of things that might be found contemptuous under that subsection, and the other thing listed is "abuse of the process or proceedings of the court." Id. Our supreme court requires a "commonsense approach" to statutory interpretation in which "a word is given more precise content by the neighboring words with which it is associated." See Thayer v. Washington County School Dist. , 2012 UT 31, ¶ 15, 285 P.3d 1142 (quotation simplified). Here, the entire thrust of the subsection is aimed at allowing a court to penalize deceitful misuse of judicial proceedings by parties to those proceedings. Ronald's actions were all undertaken toward Holly, and not toward the court, and thus cannot fall within the ambit of subsection (4).

¶15 It is contemptible deceit, for example, to lie to a court under oath. See Bhongir v. Mantha , 2016 UT App 99, ¶ 16, 374 P.3d 33. It is also contemptible deceit to file false documents, see, e.g. PacifiCorp v. Cardon , 2016 UT App 20, ¶ 3, 366 P.3d 1226, or to falsely testify during a divorce proceeding that one has very little money and then skip town with money which one has previously deposited under an assumed name, see Smith v. Smith , 117 Utah 523, 218 P.2d 270, 271-72 (1950). But these are all actions taken toward the court, and we are aware of no case-and Holly provides us with none-in which a court held a person in contempt for deceit that occurred outside of the presence of the court, was directed towards another party, and did not involve false sworn testimony or the filing of a falsified document.

¶16 We share Ronald's concern that, were Holly's position governing law, there would be little to prevent any untruthful statement made by any party to anyone while litigation is pending from being punishable by contempt of court. Indeed, Holly's contentions in this case are, in essence, that Ronald breached the Mediation Agreement and in the course of doing so made fraudulent statements-or at least committed fraudulent nondisclosure-toward Holly. In our view, it would stretch the meaning of subsection (4) of the contempt statute well beyond its intended meaning if facts like these, even if true, were determined to fall within its ambit.

¶17 Holly next contends that the district court could also have been relying on subsection (5), which allows a court to punish "disobedience of any lawful judgment, order or process of the court." Utah Code Ann. § 78B-6-301(5) (2012). But the district court did not reference any judgment or order that it believed Ronald disobeyed. Instead, the only document the court mentioned was the Mediation Agreement; the court faulted Ronald for failing "to act as agreed between the parties on June 16, 2016." It is undisputed that, as part of the Mediation Agreement, Ronald agreed to pay half of the parties' 2015 tax obligation, and that he did not ever actually do so. But the Mediation Agreement was not an order of the court; it was just a private agreement between two parties. Breach of a private agreement that has not yet been made an order of the court cannot be a violation of subsection (5) of the contempt statute.

¶18 Holly attempts to defend the court's contempt order by asserting that Ronald was not only in violation of the parties' private Mediation Agreement, but that he was also in violation of the Decree, and that-even though the district court made no mention of it-the district court intended to hold Ronald in contempt for failure to comply with the terms of the Decree. For support, Holly directs our attention to paragraph 9(r) of the Decree, which is the paragraph setting forth the parties' rights and obligations regarding the 2015 tax obligation. As noted above, that paragraph states that Holly is to receive any 2015 tax refund to which the parties may be entitled, but that Holly "shall also be responsible to pay any tax liabilities resulting to any of the Parties for the year 2015." The plain terms of the Decree (as opposed to the Mediation Agreement) obligate Holly to pay the entirety of the parties' 2015 tax obligation, whatever that obligation might be. While Ronald's failure to pay half of that obligation may well violate the terms of the Mediation Agreement, such failure clearly does not violate the terms of the Decree, because the Decree imposed upon Ronald no obligation to pay any of the parties' 2015 tax obligation.

¶19 Holly argues, however, that paragraph 9(r) of the Decree is at least ambiguous, and asks us to consider parol evidence, most notably the Mediation Agreement, in construing its terms. Holly maintains that the "ambiguity" contained in paragraph 9(r) was "the presence or absence of a tax refund," and asserts that she only agreed to the terms of the Decree because she believed that she would receive a tax refund. Holly's argument fails, however, because the plain language of the Decree is not itself ambiguous, and clearly obligates her-and not Ronald-to pay any outstanding tax liability. A provision is ambiguous only if "its terms are capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial ambiguities."See Mind & Motion Utah Investments, LLC v. Celtic Bank Corp. , 2016 UT 6, ¶ 24, 367 P.3d 994 (quotation simplified). If the language is not ambiguous, "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. (quotation simplified). "Terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to his or her own interests." Id. (quotation simplified). Instead, "the proffered alternative interpretations must be plausible and reasonable in light of the language used." Id. (quotation simplified).

¶20 Holly's interpretation of the language contained in paragraph 9(r) is simply not "plausible and reasonable in light of the language used." Id. Where the language clearly imposes upon Holly the obligation to pay whatever tax obligation the parties owed for the 2015 tax year, any interpretation that imposes that obligation, even in part, upon Ronald is simply not consonant with the plain meaning of the language used. Accordingly, Ronald's failure to pay any portion of the parties' 2015 tax obligation is not a violation of the plain terms of the Decree, and therefore the district court could not have properly held Ronald in contempt of court on that basis.

CONCLUSION

¶21 A statutory contempt remedy simply does not fit the facts of this case, even if we assume that Holly's version of the facts is correct. Ronald did not commit deceit on the court, nor did he violate an order or judgment of the court. He appears to have violated the terms of the Mediation Agreement, and-although we express no opinion on the matter-he may have committed fraud or fraudulent nondisclosure upon Holly in the time period between the mediation and the entry of the Decree. But Holly's remedy, if any, for Ronald's actions must be found somewhere other than the contempt statute. We vacate nearly the entirety of the district court's contempt order, including its order that Ronald pay attorney fees, and remand this case for further proceedings consistent with this opinion.

      Because both parties share the same surname, we identify the parties by their first names throughout this opinion. We intend no disrespect by the apparent informality.

      Among other additional arguments, Ronald also takes issue with certain of the district court's factual findings supporting its contempt determination, but because we determine that the facts as set forth by Holly cannot constitute statutory contempt as a legal matter, we need not consider any of Ronald's other arguments, including whether the district court clearly erred in any of its factual determinations.

      Under Utah law, courts also have inherent (non-statutory) contempt powers. See Chen v. Stewart , 2005 UT 68, ¶ 36, 123 P.3d 416 ("A court's authority to sanction contemptuous conduct is both statutory and inherent."). In this case, however, Holly did not ask the district court to invoke its inherent powers and, in its order, the district court did not expressly invoke any such powers. On appeal, Holly defends the district court's order by asserting that the court had the statutory power to issue its contempt order. Because the district court does not appear to have invoked its inherent power, and because Holly does not argue that it did, we do not address whether the district court would have had the power to hold Ronald in contempt of court pursuant to its inherent (as opposed to its statutory) authority.

      During the course of the hearing on Holly's order to show cause, Ronald testified that he had a meeting with Holly in July 2016 where she agreed to pay all of the 2015 taxes. Holly denied that any such meeting ever occurred, and denied ever agreeing to pay the entirety of the 2015 tax obligation. The district court credited Holly's version of those events, and made a finding that Ronald was "not telling the truth" in setting forth his version. However, there is no indication in the remainder of the court's contempt order that it intended to hold Ronald in contempt for the particular statement that it found was not true. The court's specific contempt finding lists only "deceit" in "fail[ing] to act as agreed between the parties on June 16, 2016," and makes no attempt to ground a contempt finding on any "deceit" associated with Ronald's testimony about the July 2016 meeting.

      The district court ordered the parties to participate in mediation. However, Holly makes no claim that Ronald failed to participate in mediation, or that the district court intended to hold Ronald in contempt for violating its order that the parties participate in mediation. See, e.g. , Rawlings v. Rawlings , 2008 UT App 478 ¶¶ 24-28, 200 P.3d 662 (holding that while complete failure to participate in court-ordered mediation may constitute a violation of a court order to participate in mediation in good faith, participating with no intention of making or considering any settlement offers does not), reversed on other grounds by Rawlings v. Rawlings , 2010 UT 52, 240 P.3d 754.

      For instance, a party in Holly's situation could, among other options, (a) elect to file a petition to modify the Decree, asserting a substantial and material change in circumstances; (b) file a motion, pursuant to rule 60(b)(3) of the Utah Rules of Civil Procedure, seeking relief from the terms of the Decree on the basis of fraud; or (c) file a separate lawsuit alleging fraud, fraudulent nondisclosure, or some other appropriate cause of action, and seeking damages. We express no opinion about whether, on the facts presented here, Holly would be entitled to relief under any of these options.

      We do not vacate Paragraphs 20-22 of the district court's contempt order. In those paragraphs, the district court determined that Holly had failed to comply with the provision of the Decree that required her to pass along to Ronald certain rebate checks that she might receive. Holly has not appealed those findings, and takes no issue with them in the context of Ronald's appeal. On remand, the district court may revisit the question of whether Holly is entitled to offset her obligation to Ronald regarding the rebate checks against any other obligation Ronald may owe her, or whether a judgment in Ronald's favor regarding the rebate checks is appropriate.

      Ronald not only asks that we vacate the attorney fees award entered against him, which we hereby do, but he also asks that we also (a) order Holly to reimburse him for the attorney fees he incurred on appeal and (b) direct the district court to award him his fees he incurred during the contempt proceedings before the district court. Ron's request for an affirmative award of attorney fees is premature. As we have previously stated, in situations like this it will be up to the district court, on remand, to determine whether Ron should be awarded his attorney fees incurred during the contempt proceedings before the district court. See Thayer v. Thayer , 2016 UT App 146, ¶ 41, 378 P.3d 1232 (reversing a district court decision in favor of Husband and noting that therefore "Wife has ultimately substantially prevailed both on appeal and in the district court," but declining to direct the district court to award Wife the fees she incurred before the district court, stating that "[t]he district court on remand should evaluate Wife's request for attorney fees ..."). Ron has certainly prevailed on appeal, but he will only be entitled to reimbursement of the attorney fees he incurred on appeal if the district court, on remand, decides to award Ron the attorney fees he incurred before the district court. Id. (stating that "[i]f the court awards attorney fees [on remand], the award should also include Wife's attorney fees reasonably incurred for enforcing the decree on appeal").