author: POHLMAN, Judge:

text:
    STATE of Utah, Appellee, v. Chad Jacob ROBERTS, Appellant.
    No. 20170616-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Michael D. Esplin, Provo, Attorney for Appellant
    Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.
    Opinion
   POHLMAN, Judge:

¶1 Chad Jacob Roberts appeals his conviction for aggravated sexual abuse of a child and also seeks a remand under rule 23B of the Utah Rules of Appellate Procedure. We affirm Roberts's conviction and deny his motion for a rule 23B remand.

BACKGROUND

Sexual Abuse, Disclosure, and Investigation

¶2 Victim is the adoptive sister, and natural cousin, of Roberts. After their biological father relinquished his parental rights, Victim and her two older siblings (Sister and Brother) were adopted by Roberts's mother (Mother). Roberts would frequently visit the house where Mother and Victim lived and would "cuddle" with Victim and Sister and read them books at bedtime. Often, Roberts would "fall asleep with them in the bed."

¶3 Once, when Victim was about seven years old and Roberts was in his mid-twenties, Roberts lay in Victim's bed and touched her vagina "skin-to-skin." He "cuddled up against [her] ... with his body pressed against [her] back" and then "put his hand down [her] underwear." Roberts "patted" Victim's vagina "a few times" and then "just rested [his hand] there" before resuming patting. This pattern continued for about thirty minutes. Eventually, Victim "got out of bed and went in the bathroom" because she "did not like what was happening." Thinking that Roberts had fallen asleep, Victim crawled back into her bed. Again, Roberts "cuddled up against [her] and put his hand down [her] pants." He did not say anything to Victim, or try to kiss or digitally penetrate her.

¶4 Because she "still loved and cared about" Roberts and was "happy living at" Mother's house, Victim "decided [she] was never going to tell anyone" what had happened that night. Then, nearly ten years later, she disclosed the touching to Brother and his fiancée (Fiancée). Victim had moved out of Mother's house and was living with her father, who testified that, prior to the move, Victim "was struggling" and had received treatment for "self-harming behaviors." While Victim was visiting Mother's house one day, she and Brother started drinking alcohol mixed with an energy drink. Brother and Fiancée mentioned to Victim that they planned on "getting a place" with Roberts. This made Victim fear that Roberts would abuse Fiancée. Victim then became "very drunk," and Brother and Fiancée took her to the mall to "walk it off." While there, Victim became "hysterical," "[fell] over in the parking lot," and repeated "over and over" that Roberts had raped her. Once she calmed down, Victim explained to Brother and Fiancée that Roberts "used to come lay in bed with her and touch her at night," but she did not offer any more details.

¶5 After this disclosure and a report made by Brother, police interviewed Roberts. Roberts admitted that he would sleep in Victim and Sister's bunkbed and "cuddle with them," but he denied ever touching Victim inappropriately. The police investigator asked whether on the night in question he could have touched Victim's vagina "accidentally," and Roberts responded, "Possibly," but denied that it would have been for sexual gratification.

Trial

¶6 At trial, the defense called Mother, who testified that Roberts and Victim had a "[l]oving, caring" relationship. She also testified that, although Roberts would cuddle with Victim and Sister, their room was not far from hers and their doors were "[a]lways open." On cross-examination, the prosecutor asked Mother whether she was ever interviewed by the Division of Child and Family Services (DCFS) "about [her] being emotionally abusive to" Victim. After Mother testified that she was aware of an accusation of emotional abuse but was not interviewed by DCFS, defense counsel objected to the line of questioning on relevance grounds. The trial court sustained the objection, and the prosecutor moved on to another topic.

¶7 Later, during closing argument, the prosecutor twice stated that Roberts's penis was "pressed up against" Victim's buttocks as he lay with her. The second time, after the prosecutor said that Roberts was "spooning with his front pushed against [Victim's] back with his penis around her buttocks," defense counsel objected. The trial court sustained the objection and explained to the jury that there was no evidence in the record of the "relative positions" of Roberts and Victim. The prosecutor then told the jury that it could use its "common sense understanding" to infer the relative positions of Roberts and Victim as they lay in the bed. Defense counsel did not renew the objection or ask the court to take any further action.

¶8 The defense's strategy at trial was to focus on Roberts's lack of sexual intent rather than attack the credibility of Victim, who had testified emotionally about the abuse. Roberts, who testified at trial, admitted that he cuddled with Victim and Sister and that he told police that he may have touched Victim's vagina accidentally, but he denied touching her with any sexual intent. In his closing argument, defense counsel stated that he did not think Victim was lying, and that the jury could believe both Victim and Roberts and still find Roberts not guilty. Counsel emphasized the isolated nature of the incident and argued that, because he did not have "the specific intent to arouse or gratify somebody's sexual desire," Roberts was not guilty.

¶9 At the close of evidence, the State asked the trial court "to expand [by one year] the time frame that was originally pled" in the information. Without hearing "much of an opposition" to such an amendment, the trial court granted the request. After being given instructions, including an instruction that counsel's "statements and arguments are not evidence," the jury retired to deliberate. When it returned, the jury convicted Roberts of aggravated sexual abuse of a child. Roberts appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Roberts raises several issues on appeal that can be separated into three categories. First, Roberts contends that the prosecutor made improper statements during closing argument that warranted a mistrial or a limiting instruction. Defense counsel did not request these remedies at trial, and Roberts asks us to review this unpreserved issue under the doctrines of plain error and ineffective assistance of counsel. See State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443 (explaining that plain error and ineffective assistance of counsel are exceptions to the preservation requirement). A trial court plainly errs when it commits obvious, prejudicial error. See State v. Griffin , 2016 UT 33, ¶ 17, 384 P.3d 186. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." Id. ¶ 16 (quotation simplified).

¶11 Second, Roberts contends that the prosecutor's inquiry of Mother about a DCFS investigation constituted prosecutorial misconduct and that defense counsel was constitutionally ineffective for not objecting sooner and moving to strike the testimony. This ineffective assistance claim again presents a question of law. Id.

¶12 Finally, Roberts raises a number of other ineffective assistance claims relating to defense counsel's choices not to request a bill of particulars and not to attack Victim's credibility, which he asserts require a remand under rule 23B of the Utah Rules of Appellate Procedure. "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. Calvert , 2017 UT App 212, ¶ 56, 407 P.3d 1098 (quotation simplified).

ANALYSIS

I. Prosecutor's Comments During Closing Argument

¶13 Roberts first contends that the trial court "committed plain error by failing to sua sponte order a mistrial or by failing to give a limiting instruction to the jury" after the prosecutor twice remarked in closing that Roberts's penis was "pressed up against" Victim's buttocks. Alternatively, he contends that his defense counsel was constitutionally ineffective "by failing to move for a mistrial or request[ ] a specific" limiting instruction in response to those comments. We conclude, however, that a mistrial was not required here and that, even assuming a limiting instruction was required, the court adequately instructed the jury. We also conclude that Roberts's defense counsel was not ineffective in not requesting a mistrial or a limiting instruction.

A. Plain Error

¶14 Not "every misstep of counsel in closing amounts to plain error." State v. Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314. "We must ask first whether counsel's missteps were so egregious that it would be plain error for the district court to decline to intervene sua sponte." Id. (emphasis omitted). And our supreme court has long recognized that prosecutors have "considerable latitude in their closing arguments." State v. Dibello , 780 P.2d 1221, 1225 (Utah 1989). Specifically, "[t]hey have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports," id. , and have "the duty and right to argue the case based on the total picture shown by the evidence," State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). Thus, the court "must be certain" that a prosecutor's statement is "both highly prejudicial and obviously" wrong before interrupting closing argument sua sponte. Hummel , 2017 UT 19, ¶ 119 n.35, 393 P.3d 314 ; see also State v. King , 2006 UT 3, ¶ 14, 131 P.3d 202 (observing that a "trial court should not assume the role of advocate" (quotation simplified) ).

¶15 Intervening by declaring a mistrial is a particularly drastic remedy that is warranted "only when no reasonable alternatives" exist. See West Valley City v. Patten , 1999 UT App 149, ¶ 12, 981 P.2d 420. Indeed, declaring mistrials sua sponte "at the end of counsel's statement to the jury must be indulged with a high degree of caution and circumspection." State v. Dennis , 14 Utah 2d 403, 385 P.2d 152, 153 (1963). The Utah Supreme Court has suggested that any duty to sua sponte declare a mistrial would arise only if the underlying error "render[ed] the trial a farce and a mockery." Id. at 153 n.2 (quotation simplified).

¶16 Here, the prosecutor made two statements during closing argument describing Roberts's penis as being "pressed up against" Victim's buttocks. Although Victim did not testify to these specific facts, the jury heard evidence that Roberts had "cuddled up against [Victim]" and was lying behind her in her bed with his body "pressed against the back of [her body]" and "pressed up against [her]" when he wrapped his arm around her and touched her vagina. (Emphases added.) Given the wide discretion afforded attorneys in closing argument and the reasonable inferences that could be drawn from the evidence about Roberts pressing against Victim, the prosecutor's statements were not so egregiously unreasonable that we can fault the trial court for not intervening and sua sponte declaring a mistrial. See Hummel , 2017 UT 19, ¶ 110, 393 P.3d 314 ; Dennis , 385 P.2d at 153 & n.2.

¶17 Roberts alternatively suggests that the trial court plainly erred by not providing a limiting instruction in response to the prosecutor's closing argument. But after defense counsel objected to the prosecutor's statements, the court sustained his objection and gave some instruction to the jury. The court explained to the jury that the objection to counsel's argument was sustained because "no evidence regarding the size of the child versus the size of the adult was ever ... proffered." Accordingly, the jury was specifically told there was no direct evidence on this point. The court also twice instructed the jury that counsel's statements, including closing argument, "are not evidence" and that it must rely on the evidence regardless of any conflict with counsel's statements. And on appeal, Roberts does not articulate why the court's instructions, taken as a whole, were inadequate. In light of the instructions that the trial court gave, and without some description of what more the court should have done, we are not persuaded that the court plainly erred in how it instructed the jury.

B. Ineffective Assistance of Counsel

¶18 Having concluded that the trial court did not plainly err, we address Roberts's alternative contention that defense counsel was constitutionally ineffective when he "failed to request a remedy, either moving for a mistrial or requesting a curative instruction" in response to the prosecutor's statements. Although Roberts requests a rule 23B remand on this claim, it "is not necessary to remand" when the existing record "demonstrate[s] that counsel's performance was not deficient." State v. Griffin , 2015 UT 18, ¶ 42, 441 P.3d 1166.

¶19 Proving deficient performance is a "heavy burden." State v. Nelson , 2015 UT 62, ¶ 11, 355 P.3d 1031 (quotation simplified). To meet that burden, Roberts "must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel's acts or omissions." Id. ¶ 10 (quotation simplified). In an analogous context, the Utah Supreme Court has recognized "the prerogative of opposing counsel to swallow their tongue instead of making an objection that might have the risk of highlighting problematic evidence or even just annoying the jury." State v. Hummel , 2017 UT 19, ¶ 110 & n.34, 393 P.3d 314. Indeed, several cases have recognized that the decision not to object at all may be a "legitimate strategic decision." State v.Bedell , 2014 UT 1, ¶¶ 24-25, 322 P.3d 697 ; see also State v. Houston , 2015 UT 40, ¶ 76, 353 P.3d 55 ; State v. Shepherd , 2015 UT App 208, ¶¶ 52-53, 357 P.3d 598.

¶20 We likewise conclude that defense counsel's decision not to request a mistrial or a limiting instruction here was a legitimate strategic decision. Again, defense counsel did object, and the trial court sustained the objection and gave some correction to the jury, pointing out that there was no direct evidence of Roberts's and Victim's relative body positions. When the prosecutor then argued that his statements were a reasonable inference from the evidence, defense counsel may have been satisfied with the result because it highlighted the lack of direct evidence that Roberts's penis was pressed against Victim's buttocks. He also could have reasonably concluded that a mistrial would not be granted, given that the prosecutor's statements were not a wholly unreasonable inference from the evidence. Or counsel may have simply wanted to reserve for himself the right to argue inferences from the evidence during his own closing argument without increasing the likelihood of the State objecting in return. See Shepherd , 2015 UT App 208, ¶ 53, 357 P.3d 598. Thus, we conclude that defense counsel's performance was not constitutionally deficient, because there were conceivable tactical bases not to request a mistrial in this case. See Nelson , 2015 UT 62, ¶ 10, 355 P.3d 1031.

II. The Prosecutor's Cross-examination of Mother

¶21 We next turn to Roberts's contention that the prosecutor's cross-examination of Mother about a DCFS investigation into allegations that she had been emotionally abusive to Victim was improper and requires reversal of his conviction. The Utah Supreme Court recently clarified that an unpreserved claim of prosecutorial misconduct is not "a standalone basis for independent judicial review." State v. Hummel , 2017 UT 19, ¶ 111, 393 P.3d 314. Rather, unpreserved challenges of prosecutorial misconduct must be reviewed "under established exceptions to the law of preservation," namely, plain error, exceptional circumstances, or ineffective assistance of counsel. Id. ¶¶ 102, 111.

¶22 Roberts has not asserted exceptional circumstances or plain error, but he has argued that his prosecutorial misconduct claim should be reviewed under the rubric of ineffective assistance of counsel. Specifically, Roberts contends that defense counsel was ineffective "by failing to timely object" to this line of questioning and for not requesting that "the testimony be stricken."

¶23 To establish ineffective assistance of counsel, Roberts "must show both that counsel's performance was objectively deficient, and a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial." State v. Reid , 2018 UT App 146, ¶ 19, 427 P.3d 1261 (quotation simplified). In practice, we often skip the question of deficient performance when a defendant cannot show prejudice. See Strickland v. Washington , 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed."); see, e.g. , Reid , 2018 UT App 146, ¶ 20, 427 P.3d 1261 ; State v. Goode , 2012 UT App 285, ¶ 7 & n.2, 288 P.3d 306. We follow that course here.

¶24 During cross-examination, the prosecutor asked Mother about a DCFS investigation into an allegation that she had emotionally abused Victim. Although defense counsel ultimately succeeded in terminating this line of questioning on relevance grounds, the jury heard Mother testify that she did not recall that her sister had accused her of emotionally abusing Victim and she denied that DCFS interviewed her about the allegation. Roberts contends that defense counsel performed deficiently by not objecting sooner or moving to strike the testimony. Without deciding whether defense counsel performed deficiently, Roberts has not shown that but for that testimony it is reasonably probable that he would have obtained a more favorable outcome at trial.

¶25 Roberts contends that as a result of defense counsel's delayed action, "the jury was able to hear inadmissible evidence prejudicial to [Mother's] credibility." But Roberts offers no further explanation of how the evidence prejudiced him. He states that "[w]ithout the inadmissible evidence, there would be a likelihood of a more favorable verdict," but his analysis ends there. Roberts does not explain how the jury would have viewed this relatively brief exchange or, even assuming the testimony undermined Mother's credibility, why Mother's testimony was important to Roberts's defense. Without more, Roberts "has failed to show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Reid , 2018 UT App 146, ¶ 39, 427 P.3d 1261 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). Therefore, his ineffective assistance claim fails.

III. Ineffective Assistance of Counsel and Rule 23B Remand

¶26 Finally, Roberts raises a number of other ineffective assistance of counsel claims, separate from those addressed above, which he contends either require reversal of his conviction or a remand to develop the record. As explained above, the test for ineffective assistance of counsel is objectively unreasonable performance and accompanying prejudice. State v. Nelson , 2015 UT 62, ¶ 10, 355 P.3d 1031. If there are inadequate "findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel," a party may move for remand to the trial court for entry of those facts. Utah R. App. P. 23B(a). But a remand under rule 23B is "available only 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." Id. ; see also State v. Calvert , 2017 UT App 212, ¶ 56, 407 P.3d 1098. This is because it "stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if [the] new factual allegations were true, there is no reason to remand the case." State v. Griffin , 2015 UT 18, ¶ 20, 441 P.3d 1166. Roberts has failed to show that a rule 23B remand would help him support any of his claims of ineffective assistance of counsel.

A. Bill of Particulars

¶27 First, Roberts contends that defense counsel was "ineffective by not filing a bill of particulars" and a "demand for specific date, time and place of commission of offense." He acknowledges that "time is not necessarily an element of the offense," but he asserts that "the State is required to provide as much evidence as it has." This is true, see State v. Robbins , 709 P.2d 771, 773 (Utah 1985), but there is nothing in the record to suggest that the State had information helpful to narrowing the time frame that it did not provide. Thus, defense counsel was not ineffective by not asking for a bill of particulars. See State v. Johnson , 2015 UT App 312, ¶ 16, 365 P.3d 730 (noting "the failure to file a futile motion" is not ineffective assistance of counsel).

B. Decision Not to Challenge Victim's Credibility

¶28 Second, Roberts contends that defense counsel may have been ineffective for not challenging Victim's credibility at trial and seeks a remand to "be able to determine whether or not counsel had some strategy in abandoning the credibility issue." Specifically, Roberts raises the following related arguments:

• Defense counsel should have obtained Victim's medical records;
• Defense counsel should have investigated whether Victim suffered from reactive attachment disorder (RAD);
• Defense counsel should have called Sister as a witness to undermine Victim's account of sexual abuse;
• Defense counsel should have challenged Victim's credibility through the testimony of Brother and Fiancée; and
• Defense counsel should not have vouched for Victim in his closing argument by saying that he did not believe Victim was lying.

To support his arguments, Roberts includes an affidavit from a private investigator detailing that Sister never saw or experienced any inappropriate behavior herself and that Brother and Fiancée stated to the investigator that Victim is untruthful. Because these arguments all relate to defense counsel's decision not to attack Victim's credibility, we analyze them together and conclude that this claim does not require remand.

¶29 Ever since the Supreme Court's decision in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),"[j]udicial scrutiny of counsel's performance [has been] highly deferential." Id. at 689, 104 S.Ct. 2052. "Given the strong presumption of competence, we need not come to a conclusion that counsel, in fact, had a specific strategy in mind." State v. Isom , 2015 UT App 160, ¶ 37, 354 P.3d 791 (quotation simplified). "Instead we need only articulate some plausible strategic explanation for counsel's behavior." Id. (quotation simplified). Only when "no reasonable attorney" would pursue the chosen strategy will we determine that counsel has been constitutionally ineffective. See State v. Ramos , 2018 UT App 161, ¶ 36, 428 P.3d 334, petition for cert. filed , Oct. 3, 2018 (No. 20180791); see also State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (noting courts "will not question" tactical decisions "unless there is no reasonable basis supporting them" (quotation simplified) ).

¶30 Here, defense counsel reasonably chose not to attack Victim's credibility, focusing instead on Roberts's lack of sexual intent. The record reflects that, at least at one point, defense counsel considered the strategy Roberts advocates on appeal. For example, he intended to have Mother testify to Victim's character for truthfulness and introduce evidence that Victim received counseling and therapy for self-harming behavior. In addition, Mother informed defense counsel of her belief that Victim suffered from RAD. At trial, however, defense counsel abandoned this strategy. After Victim's apparently emotional testimony, during which Victim stated that she still loved Roberts and that it was "hard" for her to testify at trial, it was not unreasonable for defense counsel to decide that he did not want to attack Victim's credibility and appear unsympathetic to the jury.

¶31 We also note that this strategy was particularly reasonable here. Roberts testified at trial and had already admitted to police officers that he would often "cuddle" with Victim and would fall asleep in her bed. And although not a confession, he conceded it was possible that the touching Victim described could have happened "accidentally." With these facts, defense counsel could reasonably decide to focus on Roberts's intent, without challenging the details of Victim's story or appearing to attack a vulnerable witness. Some may question whether this was the best strategy. But "the question of deficient performance is not whether some strategy other than the one that counsel employed looks superior given the actual results of trial. It is whether a reasonable, competent lawyer could have chosen the strategy that was employed in the real-time context of trial." State v. Nelson , 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation simplified). Without persuading us that defense counsel's chosen strategy was unreasonable, Roberts cannot establish that remand in this case is necessary. See State v. Griffin , 2015 UT 18, ¶ 42, 441 P.3d 1166 ; State v. Garrett , 849 P.2d 578, 581-82 (Utah Ct. App. 1993). We therefore deny his rule 23B motion.

CONCLUSION

¶32 The trial court did not plainly err when it did not sua sponte order a mistrial or give a limiting instruction in response to the prosecutor's closing argument; neither was Roberts's defense counsel constitutionally ineffective for not requesting that relief. We reject Roberts's other prosecutorial misconduct claim arising from the prosecutor's cross-examination of Mother because he did not assert it under the rubric of plain error and has not established ineffective assistance of counsel. Finally, Roberts's other claims of ineffective assistance do not demonstrate deficient performance, and his request for a rule 23B remand fails to acknowledge defense counsel's chosen strategy, which we conclude was reasonable. We therefore affirm Roberts's conviction and deny his rule 23B motion for remand.

      "We recite the facts from the record in the light most favorable to the jury's verdict." State v. Kohl , 2000 UT 35, ¶ 2 n.1, 999 P.2d 7.

      A court had already terminated the parental rights of the children's biological mother.

      Roberts first asserts that he preserved this issue by objecting to the prosecutor's closing argument. But he then proceeds to argue the issue under the rubrics of plain error and ineffective assistance of counsel. Although defense counsel objected to the prosecutor's statements at trial, he did not ask for either of the remedies to which Roberts claims he was entitled-a mistrial or a limiting instruction. Because Roberts did not seek these remedies below, he failed to preserve his arguments that he was entitled to such relief. See State v. Hummel , 2017 UT 19, ¶ 120, 393 P.3d 314 ; State v. Chavez-Espinoza , 2008 UT App 191, ¶ 25, 186 P.3d 1023.

      Although Roberts objected at trial to the prosecutor's cross-examination, he allowed some questioning before objecting on relevance grounds and did not ask for a limiting instruction.

      In support of his argument, Roberts compares the prosecutor's comments to statements made during closing argument in State v. Akok , 2015 UT App 89, 348 P.3d 377, and State v. King , 2010 UT App 396, 248 P.3d 984. Even assuming that the statements made in Akok and King are comparable to those made by the prosecutor in this case, both cases are procedurally inapposite. Akok dealt with a preserved claim of prosecutorial misconduct; defense counsel there moved for a mistrial. 2015 UT App 89, ¶ 8, 348 P.3d 377. And in King , we stated that it was "not clear that the error would have been obvious to the trial court" but merely assumed it was for the purpose of resolving the issue based on lack of prejudice. 2010 UT App 396, ¶¶ 28-29, 248 P.3d 984. Thus, neither case helps Roberts establish that the trial court here plainly erred.

      It was initially unclear whether Roberts asserted plain error or was relying on the now-defunct "standalone basis for direct review of the actions of prosecutors." Hummel , 2017 UT 19, ¶ 106, 393 P.3d 314 (quotation simplified); see also id. ¶ 111 (repudiating authority recognizing prosecutorial misconduct as a standalone basis for independent judicial review). After the State responded by analyzing the claim for plain error, Roberts removed all doubt by clarifying that he "did not claim that the trial court committed plain error" but that "the prosecutor's reference to [the] DCFS investigation constituted prosecutorial abuse justifying reversal of the conviction." Because Roberts has not asked for plain error review of this prosecutorial misconduct claim, and has not analyzed the issue under that standard, we will not review it for plain error. See, e.g. , Chavez-Espinoza , 2008 UT App 191, ¶ 25, 186 P.3d 1023 (refusing to address plain error where the defendant did not assert or adequately brief it).

      Based on both the prosecutor's closing argument and the cross-examination of Mother, Roberts asserts that his claims for prosecutorial misconduct should be reviewed under the cumulative error doctrine. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had."State v. McNeil , 2013 UT App 134, ¶ 70, 302 P.3d 844 (quotation simplified), aff'd , 2016 UT 3, 365 P.3d 699. "By its nature, this doctrine has no application where only one error occurred." State v. Cruz , 2016 UT App 234, ¶ 78, 387 P.3d 618 ; accord State v. Beverly , 2018 UT 60, ¶¶ 80-81, 435 P.3d 160. Here, we see no error relating to the prosecutor's statements during closing argument and assume only one error relating to the prosecutor's cross-examination of Mother. Thus, we have no errors to accumulate.

      Relatedly, Roberts contends in the introduction of his opening brief that the trial court erred "in improvidently granting the State's oral motion to amend the Information by extending the alleged time of commission of the offense by an additional year." But this contention is never mentioned again. We therefore conclude that, to the extent Roberts intended to raise the issue, the issue is inadequately briefed, and we decline to address it further. See, e.g. , State v. MacNeill , 2017 UT App 48, ¶ 84, 397 P.3d 626 (concluding that an appellant failed to carry his burden of persuasion by failing to adequately brief an issue).

      Although Roberts generally requests a rule 23B remand on his ineffective assistance of counsel claims, he does not specifically request a remand on this issue. Similarly, he does not allege facts that would support a claim that the State withheld available information that would have fixed the event in time with more specificity. See Utah R. App. P. 23B.

      Defense counsel deferred his opening statement until after the State presented all of its evidence, including Victim's testimony. This decision suggests that counsel might have wanted to see the jury's reactions to Victim before he settled on his plan to attack her credibility.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    In the MATTER OF Stephen M. WEIDNER.
    SuAnn Taylor Weidner, Appellant, v. Guardian and Conservator Services LLC, Appellee.
    No. 20170237-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Daniel K. Brough, Salt Lake City and Barry N. Johnson, Attorneys for Appellant
    Scott W. Hansen and Brenda L. Flanders, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Guardian and Conservator Services LLC (Guardian) served as the court-appointed guardian and conservator for Stephen M. Weidner. SuAnn Taylor Weidner, Stephen's spouse, disagreed with Guardian's administration of the estate and initiated an action for separate maintenance naming Stephen and Guardian, in its capacity as guardian and conservator for Stephen, as respondents.

Guardian, Stephen, and SuAnn subsequently executed a settlement agreement resolving all outstanding issues between them. The relative calm was short-lived, however, as both SuAnn and Guardian soon came to believe that the other had breached the agreement. SuAnn and Guardian each requested that the trial court enforce the terms of the settlement agreement. For the alleged breaches, SuAnn sought damages from Guardian in its individual capacity rather than in its role as guardian and conservator for Stephen. The trial court rejected SuAnn's arguments, granting summary judgment for Guardian and dismissing some of SuAnn's claims. Following trial, the court dismissed SuAnn's remaining claims because it determined that Guardian was not individually liable to SuAnn under the relevant provisions of the settlement agreement. SuAnn appeals. We reverse the trial court's grant of summary judgment, vacate its findings of fact and conclusions of law resulting from the trial, and remand for further proceedings.

BACKGROUND

¶2 SuAnn and Stephen had been married approximately fourteen years when SuAnn initiated divorce proceedings. A few months later, Stephen's friend, business advisor, and personal attorney filed a petition seeking appointment of a guardian and conservator for Stephen due to his infirmity. Subsequently, the divorce action was dismissed and SuAnn stipulated to the appointment of Guardian as guardian and conservator for Stephen in the guardianship action.

¶3 Following Guardian's appointment, SuAnn filed a complaint for separate maintenance in a different court, naming Stephen and Guardian, in its capacity as guardian and conservator for Stephen, as respondents. In her separate maintenance petition, SuAnn generally alleged that Stephen and Guardian had failed to provide her sufficient support. Instead of providing SuAnn sustaining support, she asserted, Guardian merely represented that the estate lacked sufficient funds. Indeed, Guardian had maintained that the estate's liquid assets were less than that needed to cover the estate's expenses.

¶4 Two days after SuAnn filed the separate maintenance action, the court granted SuAnn's motion to enjoin Guardian from selling two parcels of real property, scheduled to be sold that day. However, the restraining order was served on Guardian and the other named defendants after the sales closed. Approximately five days later, SuAnn served the defendants with her separate maintenance complaint. Due to the sale of the parcels, SuAnn amended her complaint to incorporate quiet title and conversion claims. The separate maintenance case and the guardianship case were later consolidated.

¶5 In an effort to resolve all of the pending claims, SuAnn, Guardian, and Stephen engaged in mediation and ultimately executed a settlement agreement (the Agreement). Among other things, the Agreement provided for: (1) dismissal of SuAnn's separate maintenance action; (2) the sale of the marital home; (3) establishment of the Weidner Trust, naming SuAnn as its sole beneficiary; and (4) the continuing obligations of Guardian as court-appointed guardian and conservator for Stephen. As to the sale of the marital home, SuAnn retained exclusive decision-making authority to "identify household furnishings to be included in the sale of the [h]ome." The president of Guardian signed the Agreement twice: once on behalf of the business entity, in its individual capacity, and once on behalf of Stephen, in Guardian's capacity as his guardian and conservator.

¶6 As anticipated, Guardian listed the marital home for sale. SuAnn, who was living in the home at the time, removed some trees from the property and placed them on property belonging to a third party. Following an offer to purchase the property, SuAnn refused to allow a realtor to access the home to prepare for the sale, and she refused to vacate on the date scheduled for the sale's closing. Fearing disruption of the sale, Guardian asked the court to issue a temporary restraining order. The court ultimately denied the request due to the availability of contractual remedies, and it indicated that while "what [SuAnn] has done to the home is annoying," her conduct "is far from looting."

¶7 Several months later, SuAnn filed a motion to enforce the Agreement, seeking damages for alleged breaches by Guardian. Guardian denied the allegations and followed suit with its own motion to enforce the Agreement. While the enforcement motions were pending, Stephen passed away. Guardian then transferred the remaining assets in the estate to SuAnn, terminating its role as guardian and conservator for Stephen. Subsequently, SuAnn filed a document entitled "Combined (1) Supplemental Memorandum in Support of Motion to Enforce Settlement Agreement, and (2) Objections to Final Accounting." SuAnn argued that, under the terms of the Agreement, Guardian undertook responsibilities to SuAnn in its individual capacity rather than in its capacity as Stephen's guardian and conservator and did not fulfill those obligations. Consequently, she contended, Guardian was individually liable for the alleged breaches.

¶8 The trial court requested additional briefing and held a hearing before narrowing the issue to "whether [Guardian] is individually liable for performance breaches." The trial court concluded that Guardian consented to paragraph 4 of the Agreement-the section detailing Guardian's continuing obligations as guardian and conservator of Stephen (the Continuing Obligations Provision)-in its capacity as guardian and conservator, not in its individual capacity. In other words, if Guardian had breached the Continuing Obligations Provision, the estate could be held liable but not Guardian individually. The court also concluded that, with respect to other provisions in the Agreement, Guardian had indeed undertaken unique responsibilities to SuAnn and received benefits distinct from those received by its ward. Specifically, in its individual capacity, Guardian agreed to a general release of claims against SuAnn. Guardian also agreed that the prevailing party in any challenge to the Agreement would be entitled to attorney fees. Consequently, claims related to these provisions could be pursued against Guardian in its individual capacity.

¶9 Based upon the court's ruling, Guardian filed a motion for partial summary judgment seeking resolution of the issue of its individual liability. The court granted the motion, concluding that Guardian could not be held individually liable pursuant to Utah Code section 75-5-429(1). See Utah Code Ann. § 75-5-429(1) (LexisNexis Supp. 2018) ("Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in [its] fiduciary capacity in the course of administration of the estate unless [it] fails to reveal [its] representative capacity and identify the estate in the contract."). The court dismissed SuAnn's claims related to the Continuing Obligations Provision, and the parties proceeded to trial on SuAnn's and Guardian's remaining claims.

¶10 At trial, SuAnn continued to pursue her claims that Guardian was individually liable for alleged breaches of the Continuing Obligations Provision. Citing the court's prior summary judgment ruling, Guardian objected to many of SuAnn's attempts to introduce evidence of Guardian's alleged breaches of that provision. Guardian also objected to SuAnn's attempt to introduce evidence of the parties' intent in entering the Agreement. Particularly, Guardian sought to exclude evidence relating to any alleged independent duties it undertook in the Continuing Obligations Provision. The trial court sustained Guardian's objections and excluded any such evidence. Without this evidence supporting SuAnn's claims, the trial court dismissed them. The court further concluded that Guardian, as the prevailing party, was entitled to an award of attorney fees. The court granted Guardian's request for fees and entered judgment against SuAnn. SuAnn filed a motion for new trial, which the trial court denied. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶11 SuAnn argues that the trial court erroneously granted Guardian's motion for partial summary judgment, dismissing her claims. "We review the trial court's grant of summary judgment for correctness, considering only whether the trial court correctly applied the law and correctly concluded that no disputed issues of material fact existed." In re Evan O. Koller Revocable Living Trust , 2018 UT App 26, ¶ 8, 414 P.3d 1099 (quotation simplified).

ANALYSIS

¶12 SuAnn argues that the trial court erroneously granted Guardian's motion for partial summary judgment, dismissing her claims that Guardian should be held individually liable for its alleged breaches of certain duties set forth in the Continuing Obligations Provision of the Agreement. Specifically, SuAnn asserts that the trial court erred when it determined that, pursuant to the terms of the Agreement, Guardian consented to the Continuing Obligations Provision not in its individual capacity, but in its capacity as guardian and conservator for Stephen. We determine that the Agreement is ambiguous as to whether Guardian consented to certain responsibilities in its individual capacity or as guardian and conservator for Stephen. We therefore vacate the trial court's order granting partial summary judgment and remand for further proceedings.

¶13 SuAnn contended below that Guardian breached terms of the Agreement-terms that she argued provided for Guardian's individual liability to her. The trial court was not persuaded and granted summary judgment to Guardian on the issue of Guardian's individual liability based upon its review of the Agreement in light of Utah Code section 75-5-429. This section provides in pertinent part, "Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in [its] fiduciary capacity in the course of administration of the estate unless [it] fails to reveal [its] representative capacity and identify the estate in the contract." Utah Code Ann. § 75-5-429(1) (LexisNexis Supp. 2018). SuAnn asserts neither that Guardian failed to reveal its representative capacity nor that the estate was not identified in the contract. Rather SuAnn argues that the Agreement provided for Guardian's individual liability or, in the alternative, the Agreement was not "properly entered into in [Guardian's] fiduciary capacity." Accordingly, we limit our analysis to whether the Agreement provided for Guardian's individual liability on SuAnn's claims.

¶14 Following what may be characterized as contentious interactions between SuAnn and Guardian, SuAnn filed a petition for separate maintenance. She named Stephen as well as Guardian, in its capacity as guardian and conservator for Stephen, as respondents, and asserted, among other things, that Guardian failed to provide her with adequate financial support. In Guardian's view, Stephen's estate simply did not have sufficient liquid assets to provide the support SuAnn sought. SuAnn, Stephen, and Guardian resolved all of these disputes by executing a settlement agreement; each agreed to settle its claims and release the other from any remaining claims. Guardian signed the Agreement on its own behalf and separately signed on behalf of Stephen.

¶15 In this context, the trial court observed that Guardian executed the Agreement "as both guardian and conservator [for Stephen] but also as an individual entity." With respect to Guardian's particular responsibilities listed in the Continuing Obligations Provision, however, the trial court concluded that "[t]hese are duties [Guardian] clearly undertook in its role as guardian and conservator for Stephen." Reaching this conclusion, the trial court at least implicitly determined that the Agreement is not facially ambiguous as to whether Guardian consented to individual liability within the Continuing Obligations Provision. We agree with SuAnn that this was error.

¶16 As we have stated, Guardian, in its capacity as guardian and conservator for Stephen, may not be held individually liable unless it either (a) entered into the Agreement, either in whole or in part, in its individual capacity or (b) consented to individual liability in the Agreement even for duties that might be considered fiduciary. See supra ¶ 13. Utah law generally protects guardians and conservators, providing that, "[u]nless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in [its] fiduciary capacity in the course of administration of the estate." Utah Code Ann. § 75-5-429(1). The question before the trial court, considering Guardian's partial summary judgment motion, was whether Guardian had entered into all or part of the Continuing Obligations Provision in its individual capacity, or at least had "provided otherwise" in the Agreement and thereby agreed to individual liability for fiduciary obligations. See id.

¶17 To determine whether Guardian entered into the Agreement in its individual capacity or consented to individual liability under the Agreement, "we look to the language of the contract," and "consider each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none." Cafe Rio, Inc. v. Larkin-Gifford-Overton, LLC , 2009 UT 27, ¶ 25, 207 P.3d 1235 (quotation simplified). If 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." WebBank v. American Gen. Annuity Service Corp. , 2002 UT 88, ¶ 19, 54 P.3d 1139 (quotation simplified). "Only if the language of the contract is ambiguous will we consider extrinsic evidence of the parties' intent." Cafe Rio , 2009 UT 27, ¶ 25, 207 P.3d 1235. "An ambiguity exists in a contract term or provision if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." WebBank , 2002 UT 88, ¶ 20, 54 P.3d 1139 (quotation simplified).

¶18 The Continuing Obligations Provision begins, "Guardian agrees to perform the following continuing obligations...." It further states, "Guardian shall continue to serve as the Court-appointed guardian and conservator for Stephen." The provision obligated Guardian, among other things, to (1) provide a monthly allowance to SuAnn out of the estate, (2) indemnify SuAnn from any claims arising out of Stephen's personal or business affairs, and (3) provide SuAnn a quarterly report on Guardian's administration of Stephen's estate.

¶19 On its face, the Continuing Obligations Provision certainly describes Guardian's responsibilities. But it is not clear whether these duties attach to Guardian in its individual capacity or to Guardian in its role as guardian and conservator for Stephen. In other words, the language of the Continuing Obligations Provision does not itself settle the question of whether Guardian contractually consented to be individually liable for the obligations set forth in this section of the Agreement. On one hand, this provision does not explicitly provide for Guardian's individual liability, and many of the tasks included in the provision are arguably attendant to its role as guardian and conservator for Stephen. On the other hand, the obligations are clearly stated as Guardian's rather than Stephen's or Stephen's Estate's. Importantly, in other places in the Agreement the parties take pains to point out certain obligations that are, at root, Stephen's, and in which Guardian's only role is to execute, as his guardian, Stephen's obligations. For example, the Agreement directs the proceeds from the sale of the marital home to the parties, stating, "If the net sale proceeds from the sale of the [h]ome are [dollar amount] or greater, Guardian, for Stephen's benefit , shall receive [lesser dollar amount] from the sale of the [h]ome...." (Emphasis added.) The parties elected not to apply similar, distinguishing language in the Continuing Obligations Provision, and instead simply set forth the duties therein as Guardian's.

¶20 As written, the Continuing Obligations Provision is ambiguous as to whether the parties intended to provide for the individual liability of Guardian. The contrary interpretations offered by the parties are both reasonably supported by the language of the contract. See Cafe Rio , 2009 UT 27, ¶ 25, 207 P.3d 1235. When a contract or provision is ambiguous, the court must determine "the parties' intended meaning," which is "a question of fact to be determined by extrinsic evidence of intent." Florence v. Colbert , 2011 UT App 72, ¶ 2, 251 P.3d 246 (quotation simplified).

¶21 Here, the trial court granted summary judgment to Guardian, implicitly concluding that the Continuing Obligations Provision was unambiguous. We conclude that the trial court improperly determined that the Continuing Obligations Provision was unambiguous and that no disputed issues of material fact existed. See In re Evan O. Koller Revocable Living Trust , 2018 UT App 26, ¶ 8, 414 P.3d 1099.

¶22 Relying on its summary judgment ruling, the trial court excluded the presentation at trial of extrinsic evidence of the parties' intent in executing the Agreement. As a result, the court developed no record evidence of the parties' intent. Indeed, it appears the only evidence on this point was offered by SuAnn. She testified that by Guardian's separately signing the Agreement, SuAnn understood that "[Guardian] was making a personal commitment and obligation to [her]." The absence of evidence in the record of the parties' intent regarding the Continuing Obligations Provision forecloses our interpretation of the Agreement and requires a remand to the district court for additional proceedings.

¶23 Given the trial court's and the parties' commitment of resources to resolving the disputes in this matter, we do not lightly send this matter back for further proceedings. Because the record provides no preserved grounds for affirmance, however, a remand for further proceedings is the only available alternative. See PC Riverview, LLC v. Xiao-Yan Cao , 2017 UT 52, ¶ 34, 424 P.3d 162 (noting that "when a party raises alternative grounds for affirmance, an appellate court may affirm the judgment appealed from on any legal ground or theory apparent on the record" (quotation simplified) ).

CONCLUSION

¶24 The trial court erred when it granted Guardian's motion for partial summary judgment and dismissed SuAnn's claims against Guardian in its individual capacity. The Agreement is facially ambiguous with respect to whether Guardian undertook duties in the Continuing Obligations Provision in its individual capacity or in its role as guardian and conservator for Stephen. Extrinsic evidence of the intent of the parties' in entering the Agreement-evidence not presently in the record-may reveal whether Guardian should be held individually liable under this provision. We accordingly reverse the trial court's partial summary judgment ruling. Because the trial on the motion to enforce the Agreement was necessarily limited by the trial court's summary judgment ruling, we also vacate the trial court's findings of fact and conclusions of law. Guardian is no longer the prevailing party for purposes of the attorney fees award, so we also vacate the judgment against SuAnn for attorney fees. We remand to the trial court for further proceedings consistent with this opinion.

      Because SuAnn and Stephen Weidner share the same last name, we refer to them by their first names throughout this opinion. We mean no disrespect by the apparent informality.

      The court's ruling left intact potential claims SuAnn might assert against Guardian as guardian and conservator over Stephen's estate. SuAnn-the estate's only beneficiary-declined to pursue any claims against the estate.

      SuAnn raises various additional challenges to the trial court's award of attorney fees to Guardian. Because we conclude that the trial court erred in granting Guardian's motion for summary judgment and that this error infected the trial, we vacate the trial court's fees award. Accordingly, we need not address SuAnn's arguments regarding the propriety of that award. For the same reason, we do not provide the background facts related to those arguments.

      SuAnn presents three arguments supporting her contention that the trial court erred when it granted Guardian's motion for partial summary judgment. First, SuAnn contends Guardian presented no evidence supporting the court's entry of summary judgment in Guardian's favor. Second, SuAnn argues the trial court erroneously determined that her claims against Guardian under the Continuing Obligations Provision were barred by statute. And third, SuAnn asserts the trial court-applying the same statute-improperly dismissed her claims related to provisions of the Agreement other than the Continuing Obligations Provision. Because we are persuaded by SuAnn's second argument, we need not address her other arguments.

      We note that following the sale of SuAnn and Stephen's marital home-after an order had been entered enjoining the sale-SuAnn amended her petition to include other claims against Guardian in its capacity as guardian and conservator for Stephen. She asserted claims of conversion and quiet title against Guardian as well as the purchasers of the house. At the time the parties entered into the Agreement, these claims had been dismissed with prejudice, though SuAnn had filed a motion to reconsider, which motion remained outstanding.

      We do not decide here whether the lack of distinguishing language-identifying the responsibilities simply as Guardian's, rather than as Stephen's that Guardian will execute on Stephen's behalf-is sufficient, alone, to establish that Guardian consented to individual liability in the Continuing Obligations Provision. However, the lack of distinguishing language supports a reasonable interpretation that the parties intended to make Guardian individually liable for the listed obligations, and therefore supports a determination that the Agreement is facially ambiguous on this issue.


author: MORTENSEN, Judge:

text:
    Kathleen PINNEY, Appellee, v. Ricardo CARRERA, Appellant.
    No. 20170045-CA
    Court of Appeals of Utah.
    Filed January 10, 2019
    Barbara K. Berrett and Kyle C. Thompson, Salt Lake City, Attorneys for Appellant
    Blake Johnson and Ron J. Kramer, West Jordan, Attorneys for Appellee
    Opinion
   MORTENSEN, Judge:

¶1 This case stems from a car accident in which Defendant Ricardo Carrera ran a stop sign and struck Plaintiff Kathleen Pinney's vehicle. Subsequently, Plaintiff filed suit, claiming personal injuries. At trial, Defendant made three separate oral motions for judgment as a matter of law-each on a discrete point of law. One of those motions was granted, and two were denied. At the close of his case-in-chief, Defendant again renewed the third motion for judgment as a matter of law related to Utah's no-fault tort threshold, but the court again denied the motion. Prior to submission of the case to the jury, Defendant also objected to the trial court's refusal to give a requested jury instruction. The jury returned a verdict in favor of Plaintiff, awarding $300,000 in general damages. Defendant then filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, which the trial court denied. Defendant appeals and we affirm.

BACKGROUND

¶2 Plaintiff's vehicle was struck by Defendant's vehicle after Defendant failed to stop at a stop sign. Plaintiff brought a civil action against Defendant for damages resulting from the accident. The parties engaged in discovery, and Plaintiff produced approximately $11,000 in chiropractic bills.

¶3 At trial, Plaintiff elected not to seek an award of economic damages but instead chose to focus on non-economic damages associated with her herniated disc. Plaintiff argued to the jury that, based on her permanent injury, she should be compensated $50 to $75 per day for pain and suffering until she reached the age of eighty.

¶4 In addition to her own testimony, Plaintiff called several witnesses to testify on her behalf. Her chiropractor (Chiropractor) testified to Plaintiff's injuries, stating that she had a herniated disc ; that the disc injury was "permanent"; and that it would "plague" her for the rest of her life. Chiropractor also testified that with physical therapy, Plaintiff was able to "get fairly close to normal range of motion. We couldn't ever get 100 percent, and we made her very comfortable. We were able to get rid of a lot of the symptoms. ... [but the scar tissue is] not going to go away." He stated that during "five re-exams through the course of her treatment," he was able to restore most of Plaintiff's bodily function, but not all of it. Additionally, Plaintiff submitted, and the trial court admitted, MRI results, which Chiropractor discussed and which showed disc bulges and a disc herniation.

¶5 Additionally, Plaintiff's daughter testified to Plaintiff's limitations and inability to perform the same tasks that she did prior to the accident. Her daughter stated that she witnessed Plaintiff having difficulty picking up small children and that Plaintiff had been unable to ride an amusement park ride. Furthermore, Plaintiff's friend, with whom she had lived for sixteen months following the accident, testified concerning the negative effect Plaintiff's injuries had on Plaintiff's life.

¶6 At the close of Plaintiff's case-in-chief, Defendant made three separate oral motions for judgment as a matter of law. The first motion argued that Plaintiff had not carried her burden of demonstrating sufficient evidence of Defendant causing the accident. The trial court denied that motion. The second motion argued that Plaintiff had not introduced any evidence of economic damages, including the chiropractic costs, future costs of surgery, or any other future economic damages, and when Plaintiff stipulated that she was not seeking such damages, the motion was granted by the trial court. The third motion argued that Plaintiff failed to introduce evidence sufficient to satisfy the threshold requirement set forth in Utah Code section 31A-22-309(l)(a). Defendant's bases for the third motion were that (1) because the second motion for judgment as a matter of law-alleging that no economic damages were introduced by Plaintiff-had been granted, so too should the third motion, and (2) Plaintiff had not presented expert testimony demonstrating that a permanent impairment rating had been given to Plaintiff based upon "objective findings." The trial court denied Defendant's third motion.

¶7 At the close of his case, Defendant renewed his third motion for judgment as a matter of law. The trial court again denied the motion, ruling that the issue of whether Plaintiff was entitled to an award of general damages should go to the jury.

¶8 The jury was instructed that it could consider certain factors in awarding non-economic damages. Those factors were "(1) the nature and extent of injuries; (2) the pain and suffering, both mental and physical; (3) the extent to which [Plaintiff] has been prevented from pursuing her ordinary affairs; (4) the extent to which [Plaintiff] has been limited in her enjoyment of life; and (5) whether the consequences of these injuries are likely to continue, and for how long." The jury was also instructed that its verdict was not to be rendered upon the basis of any passion or prejudice toward anyone.

¶9 Finally, Defendant objected to the trial court instructing the jury on causation by utilizing the version published in the second edition of the Model Utah Jury Instructions (MUJI 2). Defendant asked the court to employ a different instruction which included the word "proximate." The court declined and instructed the jury using the MUJI 2 version. The case was submitted to the jury, which returned a verdict in favor of Plaintiff, awarding general damages in the amount of $300,000.

¶10 Defendant filed a motion for judgment notwithstanding the verdict, or, in the alternative, a motion for a new trial. The motion for judgment notwithstanding the verdict renewed Defendant's third motion for judgment as a matter of law. The motion for a new trial was sought on two bases: (1) that the $300,000 verdict was not supported by the evidence, and (2) that the verdict was excessive and was a product of passion or prejudice against Defendant, who had not been present at trial. The trial court denied Defendant's motions. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Defendant brings several issues on appeal. First, he argues that the trial court erred in denying his third motion for judgment as a matter of law based upon Plaintiff's alleged failure to meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). "Appellate courts review the grant or denial of a motion for [judgment as a matter of law] for correctness." Proctor v. Costco Wholesale Corp. , 2013 UT App 226, ¶ 6, 311 P.3d 564.

¶12 Second, Defendant contends correspondingly that the trial court erred in denying his motion for judgment notwithstanding the verdict based upon Plaintiff's alleged failure to introduce any evidence that could meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). We review a trial court's denial of a motion for judgment notwithstanding the verdict for correctness. Neff v. Neff , 2011 UT 6, ¶ 49, 247 P.3d 380.

¶13 Third, Defendant contends that the trial court abused its discretion in denying his motion for a new trial based on excessive damages. See Utah R. Civ. P. 59(a)(5)-(6). We review a trial court's denial of a motion for a new trial for abuse of discretion. Crookston v. Fire Ins. Exch. , 817 P.2d 789, 799 (Utah 1991).

¶14 Lastly, Defendant claims that the trial court abused its discretion in refusing to allow Defendant's jury instruction-which used the phrase "proximate cause"-to be given. "We review a trial court's refusal to give a jury instruction for abuse of discretion." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 75, 372 P.3d 629 (cleaned up).

ANALYSIS

I. Threshold Requirement of Section 31A-22-309(1)(a)

¶15 The parties dispute whether section 31A-22-309(1)(a) requires a plaintiff to demonstrate, at trial, that she has met the threshold requirement set forth in the statute. Utah Code section 31A-22-309(1)(a) requires plaintiffs to whom the statute applies to demonstrate, at trial, that they have met the threshold requirement set forth in the statute. The relevant section states,

A person who has or is required to have direct benefit coverage under a policy which includes personal injury protection may not maintain a cause of action for general damages arising out of personal injuries alleged to have been caused by an automobile accident, except where the person has sustained one or more of the following:
(i) death;
(ii) dismemberment;
(iii) permanent disability or permanent impairment based upon objective findings;
(iv) permanent disfigurement; or
(v) medical expenses to a person in excess of $3,000.

Utah Code Ann. § 31A-22-309(1)(a) (LexisNexis 2017). A plain reading of the statute and reference to appellate precedent confirms that such a threshold must be met.

¶16 "When interpreting a statute, we look first to the plain and ordinary meaning of its terms." Anadarko Petroleum Corp. v. Utah State Tax Comm'n , 2015 UT 25, ¶ 11, 345 P.3d 648 ; see also Reynolds v. Bickel , 2013 UT 32, ¶ 10, 307 P.3d 570 (stating that "[t]he best evidence of the legislature's intent is the plain language of the statute itself" (cleaned up) ). Therefore, despite Plaintiff's assertion that the statute "does not require a plaintiff to prove any elements at trial," the plain language of this section requires a plaintiff to demonstrate, most often at trial because causation and the amount of damages are frequently rife with issues of fact, that he or she meets at least one of the five threshold requirements. The phrase "may not maintain a cause of action" expressly provides that to ultimately prevail on a cause of action in which section 31A-22-309(1)(a) is operative, a party must show that he or she "has sustained" one of the five threshold injuries.

¶17 Furthermore, our supreme court concluded long ago that an injured party is precluded from maintaining an action for general damages except where the threshold requirement of section 31A-22-309(1)(a) is met. See Allstate Ins. Co. v. Ivie , 606 P.2d 1197, 1200 (Utah 1980). More recently, in an unpublished opinion, this court affirmed a trial court's use of a special verdict form that required the jury to establish, "as a threshold requirement," that a plaintiff had incurred more than $3,000 in medical expenses in order to "maintain[ ]" a personal injury cause of action. Vaughn v. Anderson , 2005 UT App 423U, para. 1, 2005 WL 2461162 ; see also Warren v. Melville , 937 P.2d 556, 560 (Utah Ct. App. 1997) (holding that "Utah's no-fault statute does not abrogate all remedies for general damages.... Instead, the statute only bars a cause of action for general damages if the plaintiff fails to meet the threshold requirements").

¶18 Curiously, the parties fail to cite C.T. ex rel. Taylor v. Johnson , 1999 UT 35, 977 P.2d 479. In C.T. , our supreme court reviewed facts in a case in which a jury found that the plaintiff's medical expenses were only $339. Id. ¶ 3. Nevertheless, the trial court allowed the jury to assess general damages, surmising that because the legislature had provided in a different statute that punitive damages could be assessed when the defendant was found to have been intoxicated in the accident, the legislature must have meant to allow general damages as well. Id. ¶¶ 5, 8 ; see also Utah Code Ann. § 78B-8-201 (LexisNexis 2012) (establishing that an award of punitive damages may be awarded against an intoxicated driver even if compensatory or general damages are not proven). Our supreme court rejected this assertion under a plain language analysis and held that the punitive damages statute made no reference to section 31A-22-309(1) and therefore did not create an exception "to the threshold requirements" of that statute. C.T. , 1999 UT 35, ¶ 10, 977 P.2d 479. Thus, C.T. recognizes the existence of a threshold requirement imposed by section 31A-22-309(1) to maintain a personal injury action where the statute applies. Id. Consequently, it appears to us that the question of whether the threshold must be met before general damages can be awarded has already been answered. Therefore, Plaintiff is required to show that she met the threshold requirements of the statute.

¶19 Accordingly, we move to the crux of this case: whether Plaintiff met that threshold.

II. Judgment as a Matter of Law

¶20 Defendant first argues that the trial court erred in denying Defendant's third motion for judgment as a matter of law based upon Plaintiff's failure to meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). "We will affirm the denial of a motion for [judgment as a matter of law] when a review of the evidence in a light most favorable to the non-moving party demonstrates that reasonable minds could disagree with the ground asserted for [the motion]." Proctor v. Costco Wholesale Corp. , 2013 UT App 226, ¶ 6, 311 P.3d 564 (cleaned up).

¶21 Defendant contends that Plaintiff did not meet the threshold requirement because a finding of permanent impairment, for purposes of the statute, must be based on "objective findings." That is, Defendant asserts, to be "objective," the finding must be made by someone other than "a current treating physician" and must be supported by expert opinion, which Defendant asserts must be by way of an impairment rating. A plain language analysis does not support Defendant's interpretation of the statutory language.

¶22 "It is well settled that when faced with a question of statutory interpretation, our primary goal 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 (cleaned up). But if the statutory language is ambiguous-meaning that "its terms remain susceptible to two or more reasonable interpretations after we have conducted a plain language analysis"-we "generally resort to other modes of statutory construction and seek guidance from legislative history and other accepted sources." See id. ¶ 15 (cleaned up).

A. Definitions

¶23 In this case, the operative statutory terms are "permanent disability or permanent impairment," and "objective findings." See Utah Code Ann. § 31A-22-309(1)(a)(iii) (LexisNexis 2017). A plain language analysis of these terms reveals no ambiguity. We address each term individually.

¶24 First, we must define permanent. "Permanent," as it applies to disability or impairment, has been defined by our supreme court. The court stated that "a disability is deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it." Ralston v. Metropolitan. Life Ins. Co. , 90 Utah 496, 62 P.2d 1119, 1123 (1936) (cleaned up). Applying this definition to the statute yields only one reasonable interpretation, and accordingly, the statute is unambiguous. Therefore, we need not seek additional sources to find its meaning. See Marion Energy , 2011 UT 50, ¶ 15, 267 P.3d 863.

¶25 Second, we must determine what constitutes permanent "disability" or permanent "impairment." Plaintiff submits-and Defendant's counsel conceded at oral argument-that we should apply a definition of impairment consistent with what is found in the dictionary; that is, "[t]o diminish in function, ability, or quality." However, a more definitive answer is found in Jones v. Transamerica Insurance Co. , 592 P.2d 609 (Utah 1979), overruled on other grounds by Bear River Mutual Ins. Co. v. Wall , 1999 UT 33, 978 P.2d 460. There, the court stated, "The benefits contemplated by the [No-Fault] Act are phrased in terms of 'disability' not in terms of 'physical impairment.' The former is generally understood to mean the inability to work, whereas the latter refers to the loss of bodily function." Id. at 611. Therefore, based on either the dictionary definition submitted by Plaintiff or the definition supplied in Jones , we conclude that the correct definition of "disability" is the inability to work and the correct definition of "impairment" is the loss of function.

¶26 Third, we must define "objective finding." "Objective" is defined as "[o]f, relating to, or based on externally verifiable phenomena, as opposed to an individual's perceptions, feelings, or intentions." Objective , Black's Law Dictionary (10th ed. 2014). Defendant cites McNair v. Farris , 944 P.2d 392 (Utah Ct. App. 1997), to support his argument that a finding must be made by someone other than the treating physician to be considered objective. We are not persuaded by this reasoning. In that case, the plaintiff, McNair, allegedly suffered an injury and sued the defendant under Utah Code section 31A-22-309(1)(a). Id. at 393. McNair's original complaint "mentioned no objective findings of permanent disability or impairment" and claimed "ongoing soreness in his foot," but McNair was never examined by a physician to determine whether he was permanently impaired. Id. at 395-96. Consequently, the defendant moved for summary judgment, and the court granted the motion, stating, "The express language of [the statute] requires that any permanent disability or impairment be based on objective findings. McNair thus has the burden of demonstrating the permanency of his injury with something more than his say so ." Id. at 395 (emphasis added).

¶27 So it is in this case. An "objective finding" of permanent disability or permanent impairment need not be established by a witness other than a current or past treating physician. To be considered objective, a finding need only be demonstrated through evidence other than the plaintiff's own subjective testimony. See id. ; see also Mays v. Alumnitec, Inc. , 76 Ark. App. 274, 64 S.W.3d 772, 774 (2001) (acknowledging that objective findings are "those findings which cannot come under the voluntary control of the patient" (cleaned up)). While Utah Code section 31A-22-309(1)(a) does not specify who needs to make the "objective findings" regarding permanency-whether that be a medical doctor, an expert witness, a layperson, or other-we need not reach that issue here because the evidence, which was presented by an expert witness, was clearly sufficient on these facts. We also acknowledge that "objective findings" relate to a permanent disability or a permanent impairment. We assume, without deciding, that such a finding will, in most circumstances, come by way of expert testimony. Typically-except in obvious cases-where an alleged injury involves medical factors beyond the ken of an ordinary lay person, expert testimony is required. Beard v. K-Mart Corp. , 2000 UT App 285, ¶ 16, 12 P.3d 1015.

¶28 Such a reading is consistent with the term "objective finding" as applied in other cases. See Broadhead v. Federal Express Corp. , No. 2:05-CV-806, 2007 WL 951544, at *1 (D. Utah Mar. 26, 2007) (recognizing that long-term disability plans governed by ERISA define "objective findings" as "signs which are noted on a test or medical exam and which are considered significant anatomical, physiological or psychological abnormalities which can be observed apart from the individual's symptoms" and may include, "Medical examination findings; Test results; X-ray results; observation of anatomical physiological or psychological abnormalities"); see also SAIF Corp. v. Lewis , 335 Or. 92, 58 P.3d 814, 815 (2002) (noting that "[o]bjective findings in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm. Objective findings do[ ] not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable" (cleaned up) ).

B. Statutory Threshold

¶29 With the plain language definitions set out, we now analyze Defendant's argument that Plaintiff did not demonstrate the threshold injury of permanent disability or permanent impairment through "objective findings," as required by Utah Code section 31A-22-309(1)(a)(iii).

¶30 Based on the plain language definitions and relevant case law, Plaintiff has met the statutory threshold through testimony and other evidence at trial. Chiropractor testified that Defendant's crash into Plaintiff's vehicle caused her to suffer a permanent herniated disc in her back, that she would be "plagued" by the injury for the rest of her life, and that the herniated disc would not go away on its own and was a permanent injury. Chiropractor also testified that with physical therapy, Plaintiff was able to regain most bodily function, but not all of it. He stated that throughout "five re-exams through the course of her treatment," they were able to "get fairly close to normal range of motion." He further explained, "We couldn't ever get 100 percent, and we made her very comfortable. We were able to get rid of a lot of the symptoms. ... [but the scar tissue is] not going to go away."

¶31 Furthermore, along with Chiropractor's examinations and treatment of Plaintiff, an MRI film was admitted into evidence that showed the existence of the herniated disc injury to which Chiropractor testified. Chiropractor determined-based on the examinations, treatment, and MRI-that Plaintiff had suffered a permanent impairment, and he testified to that effect. To further corroborate Chiropractor's determination, both Plaintiff's daughter and friend testified to "the changes and differences that [Plaintiff] suffers from now because of her injuries." They described the "impact the crash has had on [Plaintiff's] life.... the limitations, pain, and other ways that the injuries affect [Plaintiff] on a daily basis."

¶32 This type of testimony (1) shows permanence based on Chiropractor's statement that Plaintiff would be "plagued" for the rest of her life; (2) demonstrates impairment because Plaintiff suffered the loss of bodily function; and (3) is objective because the impairment was determined after a number of "reproducible, measurable or observable" exams, see SAIF Corp. v. Lewis , 335 Or. 92, 58 P.3d 814, 815 (2002), and was perceptible to those other than the injured person-specifically, her treating Chiropractor, her daughter, and her friend. The findings of a permanent injury and its associated impairment have thus been shown by "objective findings." Accordingly, Plaintiff met the threshold requirement of Utah Code section 31A-22-309(1)(a). And because the evidence demonstrated that reasonable minds could disagree with the ground asserted for judgment as a matter of law, the trial court did not err in denying Defendant's motion for judgment as a matter of law.

III. Judgment Notwithstanding the Verdict

¶33 Next, Defendant contends that the trial court erred in denying his motion for judgment notwithstanding the verdict based upon Plaintiff's failure to introduce any evidence that could meet the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). "On ... a motion for judgment notwithstanding the verdict, we will reverse the trial court's ruling only if, viewing the evidence in the light most favorable to the prevailing party, we conclude that the evidence is insufficient to support the verdict." Utah Dep't of Transp. v. Target Corp. , 2018 UT App 24, ¶ 12, 414 P.3d 1080 (cleaned up), cert. granted , 425 P.3d 800 (Utah 2018). As discussed, Plaintiff demonstrated at trial that she met the threshold requirement set out in Utah Code section 31A-22-309(1)(a). See supra ¶¶ 29-32. Therefore, the trial court did not err in denying Defendant's motion for judgment notwithstanding the verdict.

IV. Motion for a New Trial

¶34 Third, Defendant claims that the trial court abused its discretion in denying his motion for a new trial based on excessive damages. See Utah R. Civ. P. 59(a)(5) (allowing for a new trial when the verdict includes "excessive or inadequate damages that appear to have been given under the influence of passion or prejudice"); id. R. 59(a)(6) (allowing for a new trial when there is "insufficiency of the evidence to justify the verdict"). Juries are "generally allowed wide discretion in the assessment of damages." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 71, 372 P.3d 629 (cleaned up). "There is no set formula to determine noneconomic damages such as pain and suffering, so the permissible minimum and maximum limits within which a jury may operate for a given injury are presently far apart and must continue to be widespread so long as pain and suffering must be measured by money standards." Judd v. Drezga , 2004 UT 91, ¶ 62, 103 P.3d 135 (cleaned up).

¶35 "The trial court's denial of a motion for a new trial will be reversed only if the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." Schreib v. Whitmer , 2016 UT App 61, ¶ 31, 370 P.3d 955 (cleaned up). Here, Defendant's argument fails because there was a reasonable basis for the jury's award of damages. The trial court specifically identified the following facts in support of the jury's award of $300,000 in general damages: (1) testimony regarding Plaintiff's inability to do some of the things she used to be able to do; (2) testimony regarding the permanent nature of Plaintiff's injury; and (3) Plaintiff counsel's request for damages in an amount ranging from $419,000 to $630,000.

¶36 These facts gave the jury a reasonable basis upon which to rely when it awarded damages to Plaintiff. So long as there is a reasonable basis for the jury's award of damages, a large award does not equate to an improper one, see Judd , 2004 UT 91, ¶ 62, 103 P.3d 135, nor one that is "given under the influence of passion or prejudice," see Utah R. Civ. P. 59(a)(5). While juries should not be permitted to "arbitrarily ignore competent, credible and uncontradicted evidence," courts have long held that juries are "not bound to slavishly follow the evidence and the figures given by any particular witness. Within the limits of reason it is [the jury's] prerogative to place [its] own appraisal upon the evidence which impresses [it] as credible and to draw conclusions therefrom in accordance with [its] own best judgment." Even Odds, Inc. v. Nielson , 22 Utah 2d 49, 448 P.2d 709, 712 (1968) ; see also USA Power , 2016 UT 20, ¶ 71, 372 P.3d 629 ("We have emphasized that juries are generally allowed wide discretion in the assessment of damages." (cleaned up)). Where the jury heard evidence that Plaintiff would be plagued by this painful injury every day of her life, the verdict here is within the bounds of reasonableness. Given that there was a reasonable basis for the jury's verdict awarding $300,000 in damages to Plaintiff, the trial court did not abuse its discretion by denying a new trial.

V. Jury Instruction

¶37 Lastly, Defendant claims that the trial court abused its discretion in refusing to allow Defendant's jury instruction-which used the phrase "proximate cause"-to be given. "Abuse of discretion may be present when a trial court relied on an erroneous conclusion of law or where there was no evidentiary basis for the trial court's ruling." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 75, 372 P.3d 629 (cleaned up).

¶38 Defendant submitted his own jury instruction, entitled "POST-EVIDENCE INSTRUCTIONS: PROXIMATE CAUSE." That proposed instruction stated,

A proximate cause of an injury is that cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred. A proximate cause is one which sets in operation the factors that accomplish the injury.

The court rejected Defendant's proposed instruction, and instead gave an instruction in accordance with the MUJI 2, which stated,

I've instructed you before that fault is a wrongful act or failure to act. You must also determine whether a person's fault caused the harm. As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word. "Cause" means that:
(1) the person's act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence; and
(2) the person's act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.
There may be more than one cause of the same harm.

¶39 Defendant argues that the MUJI 2 jury instruction was legally insufficient in that it did not "expressly distinguish between proximate cause and cause in fact, and, moreover, simply use[d] the term 'cause' no matter what type of causation [wa]s meant."

¶40 This argument fails because-other than the word "proximate"-there is no substantive difference between Defendant's proposed instruction and the instruction given at trial. See Raab v. Utah Ry. Co. , 2009 UT 61, ¶ 23, 221 P.3d 219 ("[W]e use the term 'proximate cause' in its traditional sense, that is, interchangeably with 'legal cause.' "). If anything, the MUJI 2 instruction is narrower than the instruction offered by Defendant, since it includes the idea of foreseeability. Accordingly, the trial court did not abuse its discretion by rejecting Defendant's proposed instruction because it did not erroneously advise the jury on the law.

CONCLUSION

¶41 The trial court did not err in denying Defendant's third motion for judgment as a matter of law because Plaintiff met the threshold requirement set forth in Utah Code section 31A-22-309(1)(a). Likewise, the trial court did not err in denying Defendant's motion for judgment notwithstanding the verdict based on the same reasoning. Further, it did not abuse its discretion by denying Defendant's motion for a new trial based on excessive damages because there was a reasonable basis upon which the jury based its verdict. Finally, the court did not abuse its discretion by denying Defendant's jury instructions because it did not erroneously advise the jury on the law.

¶42 Affirmed.

Judge David N. Mortensen authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

      "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (cleaned up).

      An MRI is "[a] type of medical imaging that uses the characteristic behavior of protons when placed in powerful magnetic fields to make images of tissues and organs." Magnetic Resonance Imaging , Taber's Cyclopedic Medical Dictionary (21st ed. 2009).

      See Model Utah Jury Instructions 2d CV209 (Advisory Comm. On Civil Jury Instructions 2018), available at http://www.utcourts.gov/resources/muji.

      The reason for his absence was not disclosed to the jury during trial or otherwise in the record.

      The parties have both briefed this case assuming that section 31A-22-309(1)(a) applies. We follow this pattern but note that circumstances may exist in which a plaintiff is not required to have coverage under section 31A-22-309(1)(a), such as an out-of-state driver whose policy does not provide first party no-fault benefits.

      Clearly, the applicability of the threshold and the issue of whether a plaintiff meets that threshold can be decided on summary judgment in appropriate situations. See McNair v.Farris , 944 P.2d 392, 395 (Utah Ct. App. 1997) ; Warren v. Melville , 937 P.2d 556, 560 (Utah Ct. App. 1997).

      Allstate Insurance Co. v. Ivie , 606 P.2d 1197 (Utah 1980), was decided under section 31A-22-309's predecessor, which is not substantively different from the statute currently in effect. Id. at 1200. Compare Utah Code Ann. § 31A-22-309 (LexisNexis 2017), with id. §§ 31-41-09, -11 (LexisNexis Supp. 1973). See also Bear River Mutual Ins. Co. v. Wall , 1999 UT 33, ¶ 10, 978 P.2d 460 (discussing the existence of a tort threshold).

      We further note that in C.T. , the plaintiff attempted to argue that since his first-party insurance carrier had paid $4,596 in medical expenses, he met the threshold requirement as a matter of law. See C.T. ex rel. Taylor v. Johnson , 1999 UT 35, ¶ 3 n.2, 977 P.2d 479. Our supreme court rejected this argument, sustaining the understanding that the question of what medical expenses are related to an accident is a factual determination, which, under most circumstances, must be submitted to a jury. Id. ¶ 7 n.3.

      More specifically, Defendant asserts that Plaintiff failed to meet both relevant threshold requirements contained in the statute: (1) medical expenses to a person in excess of $3,000; and (2) permanent disability or permanent impairment based upon objective findings. See Utah Code Ann. § 31A-22-309(1)(a). Because Plaintiff meets the permanent impairment threshold requirement, see infra ¶¶ 24-28, we need not analyze the medical expenses threshold requirement. See Utah Code Ann. § 31A-22-309(1)(a) (stating that a person may maintain a cause of action "for general damages arising out of personal injuries alleged to have been caused by an automobile accident," where the person "has sustained one or more of the following: ... (iii) permanent disability or permanent impairment based upon objective findings; ... or (v) medical expenses to a person in excess of $3,000" (emphasis added)). The parties raise, but we need not decide, if expert testimony is required in determining whether medical expenses were caused by the accident or whether a plaintiff must prove that the amounts of medical expenses claimed are reasonable.

      Defendant argues that permanent impairment is synonymous with permanent impairment rating, stating,
      [A]lthough Plaintiff's treating physician ... testified to the existence of a permanent injury to Plaintiff in the form of a herniated disc, he never characterized that injury as a permanent disability or permanent impairment. ... No other medical experts testified on behalf of Plaintiff, and the evidence demonstrated that she never received a permanent impairment rating from any physician. As a matter of law, Plaintiff thus failed to meet the prerequisite that she sustained a permanent disability or permanent impairment based upon objective findings in that the only medical professional who testified as to any permanent condition that she claimed to have suffered could not, as her treating physician, provide such findings as a matter of law as recognized by Utah case law and by his own testimony.
      But the statute does not support such a reading. Section 31A-22-309(1)(a)(iii) does not refer to an impairment "rating." We decline to rewrite the statute to include such a term. While impairment ratings may be ubiquitous in personal injury actions, their frequent use is irrelevant in construing this statute. Therefore, the fact that Chiropractor did not testify in terms of an impairment rating is irrelevant.

      See Impairment , Merriam-Webster, www.merriam-webster.com/dictionary/impairment [https://perma.cc/7CUK-95G5] ("to diminish in function, ability, or quality : to weaken or make worse").

      We note that Jones involved an earlier version of section 31A-22-309(1), which did not include the term impairment, and only referred to disability. See Jones v. Transamerica Ins. Co. , 592 P.2d 609, 611 (Utah 1979), overruled on other grounds by Bear River Mutual Ins. Co. v. Wall , 1999 UT 33, 978 P.2d 460 ; see also Utah Code Ann. §§ 31-41-09, -11 (LexisNexis Supp. 1973).

      The McNair court points to a worker's compensation case, Rushton v. Gelco Express , 732 P.2d 109 (Utah 1986), which held that when faced with conflicting testimony from a treating physician and a non-treating physician, the factfinder need not give preference to either physician, but as the factfinder, may weigh the credibility of the witnesses and reach its own conclusion. Id. at 112. Defendant points to Rushton to argue that "objective findings" must be made by someone other than a plaintiff's treating physician. But Rushton did not involve the threshold requirement set forth in Utah Code section 31A-22-309(1)(a).
      And at any rate, the McNair court also cited Cineas v. Mammone, 270 N.J.Super. 200, 636 A.2d 1071 (1994), which states, "The medical reports from plaintiff's treating doctors provided objective credible evidence sufficient to meet the requirements of the verbal threshold statute."Id. at 1077. Thus, Defendant's argument is meritless. If anything, McNair can be read for the proposition that a plaintiff's treating physicians' testimony may constitute "objective" evidence.

      We need not decide this issue because in this case the relevant testimony came by way of opinion testimony of Chiropractor, and Defendant has not challenged the admission of Chiropractor's testimony.

      Employment Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 -1461 (2012).

      Defendant does not argue that an MRI or Chiropractor's interpretation of that MRI are not objective.

      Moreover, this argument is inadequately briefed. Defendant fails to show, explain, or provide any evidentiary basis as to how this allegedly insufficient instruction affected the outcome of the trial. There is no allegation that the jury was misled by the instruction in rendering its verdict.

      Furthermore, although not binding, we note that the advisory committee notes to the MUJI 2 instruction state that "[t]he term 'proximate' cause should be avoided. While its meaning may be understood by lawyers, the lay juror may be unavoidably confused by the similarity of 'proximate' to 'approximate.' " Model Utah Jury Instructions 2d CV209 (Advisory Comm. On Civil Jury Instructions 2018), available at http://www.utcourts.gov/resources/muji.