author: APPLEBY, Judge:

text:
    STATE of Utah, Appellee, v. Abisai MARTINEZ-CASTELLANOS, Appellant.
    No. 20130432-CA
    Court of Appeals of Utah.
    Filed April 4, 2019
    Opinion
   APPLEBY, Judge:

¶1 This case is on remand from the Utah Supreme Court. Abisai Martinez-Castellanos was convicted of two counts of possession of or use of a controlled substance, one count of possession of drug paraphernalia, and one count of driving with a controlled substance in the body after a Utah Highway Patrol trooper (Officer) found drugs and drug paraphernalia in his car during a traffic stop.

¶2 Martinez-Castellanos appealed his convictions to this court, arguing that his trial attorney (Trial Counsel) was ineffective during jury selection and for failing to adequately litigate a motion to suppress evidence. He also argued that the district court erred in post-trial proceedings in which separate conflict counsel was appointed to represent Martinez-Castellanos on whether Trial Counsel was ineffective during the motion to suppress stage.

¶3 On appeal, this court determined that, although each of Martinez-Castellanos's claims constituted error, based on the lack of sufficient prejudice, none of those errors warranted reversal on its own. We made that determination, in part, because his claims regarding the motion to suppress required a showing that the motion was meritorious, and the lack of representation that he received on that motion made us reluctant to resolve the issue based on the facts in the record. We nonetheless reversed and remanded for a new trial because the cumulative effect of the errors undermined our confidence that Martinez-Castellanos received a fair trial.

¶4 On certiorari, the Utah Supreme Court reversed our decision, concluding that, without a determination that the motion to suppress was meritorious, two of the three errors could not have caused Martinez-Castellanos any harm and therefore could not cumulate into reversible error. But the court noted that, with such a determination, each of those errors would support a reversal on its own. Thus, the court remanded the case for us to determine the narrow issue of whether the motion to suppress was meritorious.

¶5 Based on the record and arguments before us, we conclude that the motion to suppress was not meritorious. Specifically, Martinez-Castellanos has failed to demonstrate a reasonable probability that the motion would have been granted but for Trial Counsel's ineffective assistance. We therefore affirm Martinez-Castellanos's convictions because the errors in the district court did not result in sufficient prejudice to warrant reversal. But because of an error in Martinez-Castellanos's sentence for one of the counts of possession of a controlled substance, we vacate his sentence on that count and remand for the district court to correct the error.

BACKGROUND

¶6 During a traffic stop in 2010, Officer discovered drugs and drug paraphernalia in Martinez-Castellanos's car. Officer arrested Martinez-Castellanos and obtained a blood sample that later tested positive for a marijuana metabolite at a level consistent with recent use. The State charged Martinez-Castellanos with two counts of possession or use of a controlled substance, one count of possession of drug paraphernalia, and one count of driving with a controlled substance in the body.

¶7 Before trial, Trial Counsel filed a motion to suppress all evidence seized "at the time of [Martinez-Castellanos's] arrest," including the drugs and drug paraphernalia found in the car and the blood sample. The motion asserted that this evidence "was seized in violation of Martinez-Castellanos's constitutional rights to be free from unreasonable searches and seizures." In the motion, Trial Counsel requested an evidentiary hearing "to determine if appropriate consent was given and, if there was no consent given, that all evidence seized be suppressed and not be admitted as evidence in any proceeding hereafter."

¶8 A week after Trial Counsel filed the motion to suppress, the district court held an evidentiary hearing on the motion, at which Officer was the only witness. Officer first discussed his relevant "training and experience with drug interdiction and detection." He said he had "been an officer for about 20 years in various capacities," and had "been on the Utah Highway Patrol drug and interdiction squad since 2001." He had "been through numerous training classes associated with the interdiction squad" and was a certified "drug recognition expert" as well as a drug-recognition-expert "instructor."

¶9 Next, Officer detailed the traffic stop. He said he initially stopped Martinez-Castellanos because the registration stickers on his California license plates did not comply with California law. And when Officer "first walked up to the car," he noticed Martinez-Castellanos making "jittery movements." Martinez-Castellanos handed Officer the car's registration and "an expired Colorado driver's license," assuring Officer that "he had a valid Utah license" but "just didn't have it with him." The registration revealed that, although the car "was properly registered ..., the proper stickers weren't put on it yet." Officer and Martinez-Castellanos then "had a conversation about" the improper registration stickers.

¶10 During the conversation, Officer noticed again that Martinez-Castellanos "was a little bit jittery." That is, he had "rapid speech and rapid ... jittery movements." This made Officer "a little bit concerned that he might have been on some type of stimulant." Officer testified, "[B]ased on my training and experience as a police officer and dealing with thousands of cars that I've stopped in my career, this made me ... [think] he was under the influence of something." According to Officer, Martinez-Castellanos's behavior was "more ... than what you'd expect based upon nervousness of a driver." He explained that, in his experience, "there's a difference" between "nervousness" and a person who is "jittery" and "talking really fast."

¶11 On cross-examination, Officer admitted he had never "seen [Martinez-Castellanos] before" and did not "know anything at all about him" other than what he observed during the stop. But he said, "[B]ased on all the people I arrest for stimulants and deal with," Martinez-Castellanos's "jittery movements" and "rapid speech" "[made me think] he could have been under [the influence of] stimulants."

¶12 After informing Martinez-Castellanos that his registration stickers were improper, Officer returned to the patrol vehicle and "ran checks," which confirmed that Martinez-Castellanos had a valid Utah driver license. But the report also revealed that Martinez-Castellanos "had a criminal history," including "drug offenses." Specifically, he had miscellaneous theft charges dating back to 1997, a charge from 2001 that led to a felony conviction for controlled substance possession, a felony charge for controlled substance possession from 2006, and a 2007 probation revocation for possession of a controlled substance. Officer said that Martinez-Castellanos's criminal history "heightened [his] suspicions that [Martinez-Castellanos] might be [under] the influence of something."

¶13 Officer then returned to Martinez-Castellanos's car and, based on his suspicion of impairment, told Martinez-Castellanos he was going to perform "field sobriety tests" because "he was bouncing around a little bit." On cross-examination, Trial Counsel asked Officer to clarify "the basis for doing the field sobriety tests." Officer said the main "reason for doing it" was the "jittery movements" and "rapid speech," which led him to believe that Martinez-Castellanos was under the influence of "stimulants." Further, although Martinez-Castellanos's criminal history "wasn't the reason [he] did it," he said the prior drug-related activity "added to [his] suspicions."

¶14 Upon re-approaching the car, Officer asked Martinez-Castellanos to exit the vehicle and then performed various sobriety and drug-recognition tests. Based on those tests, Officer concluded that Martinez-Castellanos was under the influence. Officer arrested Martinez-Castellanos and proceeded to search the car, discovering the drugs and drug paraphernalia. Later, at the jail, Martinez-Castellanos's blood tested positive for marijuana at a level consistent with recent use.

¶15 Officer's "dash-cam" filmed the traffic stop, but Trial Counsel did not review the video before the hearing. Following Officer's testimony, Trial Counsel requested the video, and the district court instructed counsel for the State to arrange for him to obtain it. The court then said, "Many times in these types of motions, we have an evidentiary hearing, and then the parties, based on the evidence, sometimes like to submit a brief." And the judge asked counsel for both parties, "[I]f you wanted me to simply make rulings based on what I've heard, or if you intended to brief this before I make a decision." Trial Counsel said he "would like to ... submit a brief on the matter" after reviewing a transcript of the suppression hearing as well as the dash-cam video.

¶16 The court set a briefing schedule, allowing thirty days for Trial Counsel to submit a brief in support of the motion to suppress and fifteen days for the State to respond. Trial Counsel did not file a brief. A week after the deadline, the court granted Trial Counsel's request for additional time, but Trial Counsel again failed to meet the deadline. The State then filed a memorandum in opposition to the motion to suppress, and Trial Counsel did not respond to it. The dash-cam video was attached to the State's memorandum.

¶17 After receiving the State's opposition, the court issued an order denying the motion. It said, "[H]aving reviewed testimony given [at the hearing] and [the State's] memorandum, the Motion to Suppress is hereby denied." Trial Counsel filed a motion to set aside the decision to deny the motion to suppress. He attached a transcript of the evidentiary hearing, and again requested time to file a brief in support of the motion to suppress. The court allowed Trial Counsel an additional week. Trial Counsel again failed to meet the deadline, and the court reinstated its order denying the motion to suppress.

¶18 Two days before trial, Trial Counsel filed a motion to dismiss in which he renewed the motion to suppress. He asserted that the dash-cam video demonstrated there was "no basis" for the stop, but he did not file a supporting memorandum. The court denied the motion. Following a one-day trial, a jury convicted Martinez-Castellanos of two felonies for possession or use of a controlled substance and two related misdemeanors.

¶19 After trial, the district court appointed conflict counsel to represent Martinez-Castellanos in post-trial proceedings regarding Trial Counsel's failure to file a memorandum in support of the motion to suppress following the evidentiary hearing and whether those actions constituted ineffective assistance of counsel. The court specifically identified Trial Counsel's failure to adequately litigate the issue of whether "there was reasonable suspicion" when Officer had Martinez-Castellanos "step out of the car and ... perform ... field sobriety tests."

¶20 About one month later, conflict counsel submitted a memorandum captioned "Amicus Brief." The brief argued that Trial Counsel's failure to file a supporting memorandum did not prejudice Martinez-Castellanos. Specifically, it said that the court's denial of the motion to suppress, "with or without legal memorandum, is a finding and conclusion of law that the State met its burden in establishing that the evidence was obtained legally."

¶21 The court agreed with the position articulated by conflict counsel, withdrew its notice, and re-instated Trial Counsel to represent Martinez-Castellanos in the remaining proceedings. The court noted conflict counsel's opinion that "it was the Court's duty to make its decision based on the evidence presented" and said, "I can understand his position on that."

¶22 Martinez-Castellanos was sentenced to zero to five years, but the court suspended that sentence and placed him on probation. Trial Counsel then filed a motion for a judgment notwithstanding the verdict. In the motion, he requested that the court suppress the evidence from the traffic stop. But the motion once again did not include a supporting memorandum and Trial Counsel did not flesh out the constitutional issues raised in the motion. Instead, Trial Counsel attached the transcripts of the preliminary hearing, the suppression hearing, and Officer's trial testimony. He specifically noted "a substantial change of [Officer's] testimony regarding the reason for the stop and the time and delay in the stop." And he asserted that the order denying the motion to suppress "should be set aside and reconsidered because of the new testimony that was offered at trial." Without explanation, the court denied the motion.

¶23 Martinez-Castellanos appealed his convictions to this court. State v. Martinez-Castellanos , 2017 UT App 13, 389 P.3d 432, rev'd , 2018 UT 46, 428 P.3d 1038. He raised three issues. First, he argued "he was denied the right to participate in the jury-selection process." Id. ¶ 25 (quotation simplified). Second, he argued that Trial Counsel provided ineffective assistance of counsel by failing to file a proper motion to suppress evidence seized during the traffic stop. Id. ¶ 26. Third, he argued "that the district court erred in failing to ensure that he had the effective assistance of counsel at all stages of the proceedings." Id. (quotation simplified).

¶24 A majority panel of this court determined that each of Martinez-Castellanos's claims constituted error. Id. ¶ 77. But we concluded that none of the errors independently warranted reversal because Martinez-Castellanos had not shown sufficient prejudice. Id. ¶ 78. We noted that a showing of prejudice for two of his claims depended on whether the motion to suppress was meritorious. Id. ¶¶ 73-74. That is, Martinez-Castellanos was required to demonstrate a reasonable probability that "a proper motion would have resulted in suppression of the evidence" and "the verdict would have been different absent the excludable evidence." Id. ¶ 74 (quotations simplified).

¶25 On that issue, we noted that both parties' arguments "appear to have some merit, and we would ordinarily go on to resolve the issue based on the facts in the record." Id. ¶ 76. But we were "reluctant to resolve the issue ... particularly because it was so poorly developed in the trial court." Id. Based on this concern, we did not determine whether the motion was meritorious. Id. ¶¶ 74-76. We nonetheless reversed and remanded for a new trial based on our conclusion that the cumulative effect of the errors undermined our confidence that Martinez-Castellanos received a fair trial. Id. ¶ 81.

¶26 On certiorari, the Utah Supreme Court reversed our decision, determining that we erred in concluding cumulative error warranted reversal. State v. Martinez-Castellanos , 2018 UT 46, ¶ 55, 428 P.3d 1038. The court explained that "[w]ithout a determination that the motion to suppress is meritorious, at least two of the three errors at issue cannot conceivably cause harm to [Martinez-Castellanos], so they cannot cumulate into reversible error." Id. ¶ 4. But the court also said that "if his motion to suppress would have been successful had it been argued before the [district] court, then ... it would have created a certainty of a different result." Id. ¶ 53. Thus, it remanded the case for us to determine the narrow issue of whether Martinez-Castellanos's motion to suppress was meritorious. Id. ¶ 54.

ANALYSIS

I. Motion to Suppress

¶27 On remand, we must determine whether Martinez-Castellanos's motion to suppress the traffic stop and blood draw evidence was meritorious. See State v. Martinez-Castellanos , 2018 UT 46, ¶ 50, 428 P.3d 1038. To prevail on this issue, Martinez-Castellanos must demonstrate "a reasonable probability" that the motion would have been granted but for Trial Counsel's failure to adequately litigate his Fourth Amendment claim. See State v. Mitchell , 2013 UT App 289, ¶ 12, 318 P.3d 238. To that end, he argues that Officer unreasonably extended the scope of the traffic stop to "investigate [him] for substance abuse and to search the car." Specifically, he asserts that, under "the totality of the circumstances," there "is insufficient [evidence] to justify an extended detention."

¶28 We are not persuaded that this claim is meritorious. Based on the record and arguments before us, we conclude that Officer's actions were justified by a "reasonable suspicion" that Martinez-Castellanos was under the influence of a controlled substance. See State v. Baker , 2010 UT 18, ¶ 13, 229 P.3d 650.

¶29 The Fourth Amendment to the United States Constitution protects citizens from "unreasonable searches and seizures." U.S. Const. amend. IV. Under that amendment, "stopping an automobile and detaining its occupants constitute[s] a seizure." State v. Hansen , 2002 UT 125, ¶ 28, 63 P.3d 650 (quotation simplified). To determine whether a traffic stop was reasonable, "[w]e apply a two-step test." Baker , 2010 UT 18, ¶ 12, 229 P.3d 650. First, we ask "whether the traffic stop was justified at its inception." State v. Gurule , 2013 UT 58, ¶ 22, 321 P.3d 1039 (quotation simplified). If the stop was justified at its inception, "we proceed to ... determine whether the detention following the stop was reasonably related in scope to the circumstances that justified the interference in the first place." Id. (quotation simplified).

¶30 Because Martinez-Castellanos concedes the stop was justified at its inception, we limit our analysis to the second step. "During the pendency of a traffic stop, if officers gain reasonable suspicion of additional criminal activity, they may turn their attention from the original purpose of the traffic stop to expediently investigate their new suspicion." Id. ¶ 31 (quotation simplified). To support reasonable suspicion, "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." State v. Markland , 2005 UT 26, ¶ 10, 112 P.3d 507 (quotation simplified). Thus, although officers may not extend the scope of a traffic stop based on "merely an inchoate and unparticularized suspicion or hunch," "a determination that reasonable suspicion exists need not rule out the possibility of innocent conduct." Id. (quotations simplified).

¶31 Essentially, "reasonable suspicion requires an objectively reasonable belief that an individual is engaged in ... criminal activity," Gurule , 2013 UT 58, ¶ 31, 321 P.3d 1039 (quotation simplified), "based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop," State v. Navarro , 2017 UT App 102, ¶ 17, 400 P.3d 1120 (quotation simplified). Courts must "judge the officer's conduct in light of common sense and ordinary human experience and accord deference to an officer's ability to distinguish between innocent and suspicious actions." Markland , 2005 UT 26, ¶ 11, 112 P.3d 507 (quotation simplified). The ultimate question is whether "the facts available to the officer ... [would] warrant a man of reasonable caution in the belief that the intrusion the officer plans is justified in order to investigate the criminal activity." State v. Anderson , 2013 UT App 272, ¶ 12, 316 P.3d 949 (quotation simplified).

¶32 The State argues that Martinez-Castellanos's arguments on appeal would not "have persuaded the [district] court to grant the motion to suppress." Specifically, it asserts that those arguments fail to show that Officer lacked "reasonable suspicion to investigate whether [Martinez-Castellanos] was under the influence of a controlled substance." We agree.

¶33 At the evidentiary hearing, Officer said that he began to suspect Martinez-Castellanos was under the influence when he approached the car and observed "jittery movements." His suspicion grew as the stop developed because he observed more "jittery movements" as well as "jittery speech" and he noticed that Martinez-Castellanos was "talking really fast." A review of the relevant case law reveals that Martinez-Castellanos's behavior during the traffic stop, as it is described in the record before us, supports a finding of reasonable suspicion. See State v. Stewart , 2014 UT App 289, ¶ 16, 340 P.3d 802 (determining that an officer had "adequate suspicion that [the defendant] was operating her vehicle under the influence" when he "observed that [the defendant] was jittery, she was dancing around in the car, her pupils were constricted, and her speech was slurred" (quotation simplified) ); see also Wilder v. Turner , 490 F.3d 810, 815 (10th Cir. 2007) (determining the same when the officer observed "a moderate odor of alcohol, pinkish and watery eyes, a flushed face, unusually slow and deliberate speech, and slow hand movements");

State v. Hogue , 2007 UT App 86, ¶ 8, 157 P.3d 826 (determining the same when an officer observed the defendant's "dilated pupils, nervous demeanor, and jerky body movements");

¶34 Granted, general nervousness and fast speech, without more, may not be enough to support reasonable suspicion. See Salt Lake City v. Ray , 2000 UT App 55, ¶¶ 5, 19, 998 P.2d 274 (determining that there was no reasonable articulable suspicion when the defendant "appeared nervous, although not agitated, and she talked fast and repeatedly shifted her weight from one foot to the other"); see also State v. Humphrey , 937 P.2d 137, 143 (Utah Ct. App. 1997) (noting that "nervousness," alone, "cannot support reasonable suspicion"). But Officer explained that Martinez-Castellanos's behavior was "more than what you'd expect based upon nervousness of a driver." That is, Officer's "training and experience as a police officer and dealing with thousands of cars that [he had] stopped in [his] career" led him to believe that Martinez-Castellanos "was under the influence of something." In his words, "based on all the people I arrest for stimulants and deal[ ] with," Martinez-Castellanos's behavior "made me think" he "could have been under [the influence of] stimulants."

¶35 Our precedent is clear that "[c]ourts must ... accord deference to an officer's ability to distinguish between innocent and suspicious actions." Markland , 2005 UT 26, ¶ 11, 112 P.3d 507 (quotation simplified). At the time of the traffic stop, Officer had twenty years of experience as a police officer and had been on the Utah Highway Patrol drug and interdiction squad for the previous nine years. He was also certified as a drug recognition expert as well as a drug-recognition-expert instructor. Although "experience and training alone might lead to only a hunch," Anderson , 2013 UT App 272, ¶ 27, 316 P.3d 949, "the Fourth Amendment is satisfied" if "the underlying facts, and reasonable inferences drawn from those facts, justify the conclusion that reasonable suspicion existed," Markland , 2005 UT 26, ¶ 19, 112 P.3d 507. Here, the evidence leads us to conclude that Officer's experience and training allowed him to determine that Martinez-Castellanos's "rapid speech" and "jittery movements" constituted "suspicious," rather than "innocent," behavior. See id. ¶ 11.

¶36 Further, Martinez-Castellanos's behavior was not the only relevant factor. Instead, Officer's suspicion "heightened" when he learned of Martinez-Castellanos's criminal history. Officer specifically noted the history of illegal drug activity, which included multiple drug-related charges as well as a felony conviction and a probation revocation for possession of a controlled substance.

¶37 This court has previously determined that "information regarding an individual's past ... criminal activity can be a factor in determining reasonable suspicion." Humphrey , 937 P.2d at 143. Indeed, "in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus." United States v. Santos , 403 F.3d 1120, 1132 (10th Cir. 2005) ; see also State v. Dennis , 2007 UT App 266, ¶¶ 10, 12, 167 P.3d 528 (upholding a finding of reasonable suspicion based on "the early morning hour, the officers' knowledge of the truck's occupants and their criminal histories, the truck's earlier presence at a location known for drug activity, and the occupants' nervousness"). Accordingly, we conclude that Officer's observations during the traffic stop, combined with Martinez-Castellanos's criminal history, "were sufficient to warrant a prudent person's belief" that Martinez-Castellanos was under the influence. See Hogue , 2007 UT App 86, ¶ 11, 157 P.3d 826 (quotation simplified).

¶38 Martinez-Castellanos identifies several arguments that should have been fleshed out in a memorandum supporting the motion to suppress. First, he asserts that the evidence "fails to show support that [his] speech or manners were rapid or unusual." And he argues that "the district court should be given the opportunity in remand proceedings to assess the evidence." To support his argument, Martinez-Castellanos claims that Officer's testimony about his observations of Martinez-Castellanos during the stop changed at trial. According to Martinez-Castellanos, at trial, Officer "stated only that Martinez-Castellanos had rapid speech and movements." But Martinez-Castellanos's assertion does not accurately represent Officer's testimony. At trial, Officer said he observed "rapid speech and rapid movements" that, "based on [his] training and experience," made him "believe that [Martinez-Castellanos] might have been under the influence of a controlled substance." After reviewing the transcript, we disagree with Martinez-Castellanos's claim that Officer "changed his testimony" "over the course of the proceedings."

¶39 Martinez-Castellanos also makes much of the fact that Officer "admitted he was not familiar with Martinez-Castellanos" and conceded that his "manner could have been his 'normal way.' " He argues that Officer "qualified his observations about 'rapid mannerisms' " by saying he "did not know if rapid manners were [Martinez-Castellanos's] 'personal traits' or 'personal speech.' " But again, Martinez-Castellanos's description does not put Officer's testimony in context. Officer made these statements while explaining his decision to perform the sobriety tests. He said that "fast speech and fast movements" are "commonly what [he sees] when people are under the influence or have been using a controlled substance." And he clarified that the sobriety tests allowed him to quickly confirm or dispel his suspicions and determine "whether that's his normal way" or "it's a controlled substance on board."

¶40 Further, "it is settled law that an officer is not obligated to rule out innocent conduct prior to initiating an investigatory detention." Markland , 2005 UT 26, ¶ 17, 112 P.3d 507. "Because the balance between the public interest and the individual's right to personal security tilts in favor of a standard less than probable cause in [these] cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotation simplified). Thus, even if we were to accept as true the assertion that Martinez-Castellanos's behavior was "at least as consistent with lawful behavior as with the commission of a crime," we nonetheless conclude that "the underlying facts, and reasonable inferences drawn from those facts, justify the conclusion that reasonable suspicion existed" to support Officer's decision to perform the sobriety tests. Markland , 2005 UT 26, ¶¶ 18-19, 112 P.3d 507.

¶41 Martinez-Castellanos also argues that the dash-cam video is "objective evidence" that "fails to support that [his] speech or manners were rapid or unusual." Specifically, he claims the video shows that Officer "did most of the talking and had a very brief interaction with Martinez-Castellanos before he took actions to extend the stop," and that Martinez-Castellanos was "polite and cooperative."

¶42 We give little weight to this argument because the dash-cam video was before the district court when it denied the motion to suppress. The video was provided to the court as part of the State's opposition, and in denying the motion, the court said it had "reviewed testimony given and memorandum provided ." (Emphasis added.) Accordingly, we consider this argument only to the extent that a supporting memorandum's written interpretation of the dash-cam video would have assisted in persuading the district court to grant the motion.

¶43 As Martinez-Castellanos notes, the dash-cam video is "objective evidence." It speaks for itself. And based on the parties' arguments, we conclude that a supporting memorandum detailing the video would have been of little assistance to the court. The State disagrees with Martinez-Castellanos's description of the video, arguing that he has failed to show "the dash-cam video refutes [Officer's] observations." According to the State, "[i]t is difficult, if not impossible, to accurately evaluate [Martinez-Castellanos's] manner and speech" in the dash-cam video because Martinez-Castellanos's movements are "mostly indiscernible," most of what he says "is largely unintelligible," and "what is intelligible arguably supports [Officer's] characterization."

¶44 On appeal, however, it is not our role to make such factual determinations. Indeed, Martinez-Castellanos acknowledges in his reply brief that this court should not "make its own interpretations of the evidence." He argues instead that the district court "is in the best position to assess whether [Officer's] testimony ... is unsupported by objective information." But as previously discussed, the district court received the video before denying the motion to suppress and seems to have considered it along with the State's memorandum. Thus, even assuming we agree with Martinez-Castellanos that a supporting memorandum that included a favorable interpretation of the dash-cam video "would have been relevant to the district court under the totality of the circumstances," we conclude that he has failed to show a reasonable probability that presenting such an interpretation would have persuaded the district court to grant the motion.

¶45 Next, Martinez-Castellanos argues that his "criminal history is insufficient to support reasonable suspicion even when it is considered with other factors because the history was three years old." To support this argument, he cites State v. Brooks , 849 P.2d 640 (Utah Ct. App. 1993). Brooks was a probable cause case in which this court determined that the defendant's "criminal record does nothing to establish that he is currently dealing in controlled substances, particularly since the most recent arrest was ... at least two years prior to the events in the case at bar." Id. at 644 ; see also State v. Keener , 2008 UT App 288, ¶ 12 n.6, 191 P.3d 835 (determining that "arrests from five to fourteen years prior" were "too old" to support probable cause, but "drug-related arrests-the most recent of which was only seven months prior" were properly considered (emphasis omitted) ). But unlike Brooks , this is a reasonable suspicion case, and Martinez-Castellanos provides no authority for his assertion that "the 3-year-old history was [too] stale" to support reasonable suspicion.

¶46 Granted, courts should analyze a person's criminal history as a whole, considering factors such as the timing, frequency, and seriousness of the pertinent crimes. See Humphrey , 937 P.2d at 141 ("Reasonable suspicion is based on objective facts, which are given due weight in light of the reliability of the information and the reasonable inferences drawn from those facts." (quotation simplified) ). But here, Martinez-Castellanos's criminal history included drug-related behavior spread over the previous nine years. The report revealed various charges, a felony conviction, and a probation revocation for possession of a controlled substance. And although the most recent offense-the probation revocation-was three years before the traffic stop, we conclude that, "when viewed in conjunction with other factors," Martinez-Castellanos's criminal history supported Officer's decision to perform the sobriety tests. See United States v. Moore , 795 F.3d 1224, 1230 (10th Cir. 2015) (explaining that, "when viewed in conjunction with other factors that suggest criminal activity may be occurring, criminal history can be a powerful contributor to the reasonable suspicion analysis").

¶47 In sum, based on the record and arguments before us, we conclude that Officer's actions were justified by a reasonable suspicion that Martinez-Castellanos was under the influence of a controlled substance. Thus, Martinez-Castellanos has failed to demonstrate a reasonable probability that the motion to suppress would have been granted had Trial Counsel made "timely and proper arguments" supporting the motion.

II. Clerical Error

¶48 Although we affirm Martinez-Castellanos's convictions, the State nonetheless asks us to remand the case to correct a "clerical error" in Martinez-Castellanos's sentence. Specifically, it asserts that the district court "entered [the] conviction on Count II (hydrocodone possession) as a third degree felony" when it "should have been entered only as a Class B misdemeanor." According to the State, this error occurred because an amendment to the original information made at the preliminary hearing was later omitted from the amended information. Martinez-Castellanos agrees that his conviction for hydrocodone possession was incorrectly entered and he asks us to "remand the case to correct his sentence."

¶49 Under the Utah Rules of Criminal Procedure, "[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time after such notice, if any, as the court may order." Utah R. Crim. P. 30(b). Further, in Martinez-Castellanos's case, possession of hydrocodone is defined by statute as "a class A misdemeanor." See Utah Code Ann. 58-37-8(2)(b)(ii) (LexisNexis Supp. 2018) (establishing that a person convicted of possessing a "schedule II" controlled substance "is guilty of a class A misdemeanor on a first or second conviction, and on a third or subsequent conviction is guilty of a third degree felony"); see also id. § 58-37-4(2)(b)(i)(A)(X) (designating hydrocodone as a "schedule II" controlled substance). But "the district court sentenced him as if the offense were a third-degree felony." State v. Williams , 2018 UT App 176, ¶ 11, 438 P.3d 856. "This was an illegal sentence." Id.

¶50 We therefore vacate Martinez-Castellanos's sentence for the possession of hydrocodone conviction and remand to the district court for resentencing on that count. See id.

CONCLUSION

¶51 Martinez-Castellanos has failed to demonstrate that his motion to suppress was meritorious. Accordingly, we affirm his convictions because the errors in the district court did not result in sufficient prejudice to warrant reversal. But we vacate Martinez-Castellanos's sentence for the possession of hydrocodone conviction and remand to the district court for resentencing on that count.

ORME, Judge (concurring specially):

¶52 I concur in the court's opinion which, of necessity, is confined to the narrow issue on remand, specifically "whether the motion to suppress was meritorious." Supra ¶ 4. But I still hold the view that "a serious miscarriage of justice occurred here," State v. Martinez-Castellanos , 2017 UT App 13, ¶ 82, 389 P.3d 432 (Orme, J., concurring in part and concurring in the result), rev'd , 2018 UT 46, 428 P.3d 1038, separate and apart from the ultimate merits of the suppression motion that competent counsel would have more thoroughly developed.

¶53 The famous Highway Patrol veteran who served as the foreperson on the jury "had no business being on the jury that convicted Martinez-Castellanos." Id. ¶ 90. See id. ¶¶ 85-89. That he did so serve was a result of constitutionally ineffective representation on the part of defense counsel, id. ¶¶ 89-90, and plain error on the part of the district court, id. ¶ 89. "The prejudice in this case is so palpable ... that Martinez-Castellanos's entitlement to a new trial is in no sense a close question." Id. ¶ 90. I find it regrettable that this significant issue got rolled into a cumulative error analysis when this appeal first came to us, permitting the resolution embraced by the Utah Supreme Court, namely, that there was no reversible error if the other two errors-the ones that turned on the ultimate merit of the suppression motion-fell by the wayside, leaving nothing to "cumulate" with the obvious jury impropriety "into reversible error." Supra ¶ 4.

      We limit our discussion of the facts to those relevant to the issue before us. For a more complete recitation of facts, see State v. Martinez-Castellanos , 2017 UT App 13, ¶¶ 2-24, 389 P.3d 432, rev'd , 2018 UT 46, 428 P.3d 1038, or State v. Martinez-Castellanos , 2018 UT 46, ¶¶ 5-31, 428 P.3d 1038.


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    VERACITY NETWORKS LLC, Appellant, v. MCG SOUTHERN LLC, Appellee.
    No. 20170580-CA
    Court of Appeals of Utah.
    Filed April 4, 2019
    Richard D. Burbidge and Carolyn J. LeDuc, Salt Lake City, Attorneys for Appellant
    Brennan H. Moss, Salt Lake City, Attorney for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   POHLMAN, Judge:

¶1 In this interpleader case, Veracity Networks LLC appeals the district court's judgment awarding attorney fees to MCG Southern LLC. Veracity contends that the district court erred in awarding attorney fees under the attorney fees provision and the indemnification provision of the parties' lease agreement. We agree with Veracity that the court erred in awarding fees under the attorney fees provision, but we are unable to review the court's decision under the indemnification provision due to a lack of findings and analysis. We therefore vacate the award and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 Veracity leased certain commercial property from MCG. In 2013, MCG filed a complaint for unlawful detainer and other claims against Veracity (the Underlying Action), relying on a written lease agreement (the Lease). The district court granted summary judgment to MCG, concluding that, among other things, Veracity did not have standing to contest the validity of the Lease. Veracity appealed that decision to this court. See MCG S. LLC v. Veracity Networks LLC , 2018 UT App 33, ¶¶ 9-10, 415 P.3d 1174.

¶3 While the appeal was pending, Veracity filed a complaint for interpleader and thereby initiated the present action (the Interpleader Action). In the complaint's general allegations, Veracity described the Underlying Action. It acknowledged the district court's ruling, but it "maintain[ed] [that the Lease] is invalid" and noted the pending appeal. Veracity then alleged that after the district court's ruling, it paid monthly rent to MCG, albeit "under protest." It also alleged that after Banner Bank-MCG's assignee of the rent payments-sent notice of assignment of rents and demanded direct payment of rents, Veracity made rent payments to Banner Bank, also "under protest." Finally, it alleged that Shawn Robinson, an attorney for MCG, claimed to have an attorney's lien against the commercial property and demanded that Veracity make rent payments to him. Veracity therefore named MCG, Banner Bank, and Robinson as defendants in the Interpleader Action.

¶4 Given the "competing demands for payment of rent" and the resulting potential for "multiple liabilities against Veracity," Veracity alleged in the only count of its complaint that although it had "an obligation to pay monthly rent, in a disputed amount," it was "unable to determine the proper party to whom the rent should be paid." Veracity explained the nature of its dispute, alleging that "Veracity disputes any obligation to pay rent beyond 1.2 times the monthly mortgage payment owed by MCG to Banner Bank and retains an interest in any rents paid beyond that amount." And Veracity concluded with the allegation that it was necessary to interplead the current and future rent payments with the district court, because Veracity was "in doubt as to which claim or claims of the parties are legally correct and have priority, and as [it] also claims an interest in certain portions of the rent payments."

¶5 In its prayer for relief, Veracity requested that "the Court order that Veracity may interplead the funds at issue with the Court"; that "each of the Defendants be restrained from instituting any action against Veracity for the recovery of funds at issue"; that the court "adjudge to whom the funds should be paid"; and that "Veracity be discharged from all liability under the premises." It also requested that "Veracity be awarded its reasonable fees and costs as provided by law" and that "the Court order such other relief as the Court may deem proper."

¶6 In answering Veracity's complaint, Robinson admitted that "his Lien is inferior to the obligation owed to Banner Bank and withdr[ew] his claim for rents." Based on a subsequent stipulation, the district court dismissed Robinson from the case.

¶7 Banner Bank answered the complaint by asserting that "any rents that Veracity admits to owing to MCG under any rental or lease agreement should be immediately paid to Banner Bank." It also urged the court to dismiss it from the Interpleader Action "because there is no interpleader dispute existing between Banner [Bank] and MCG."

¶8 MCG moved to dismiss the Interpleader Action. According to MCG, Banner Bank and MCG agreed that the rents owed by Veracity "should be paid directly to Banner Bank," and therefore "there is no dispute to the funds." MCG further argued that "interpleader requires the plaintiff or stakeholder to disclaim any interest in the funds," that Veracity improperly "continue[d] to maintain an interest in the funds," and that through the Interpleader Action Veracity was making an "inappropriate collateral attack on" the ruling in the Underlying Action. MCG thus asserted that the Interpleader Action was "improper and should be dismissed."

¶9 Veracity opposed MCG's motion to dismiss. It stated that "it has been faced with competing demands as to whom rents should be paid and has asserted as much in its complaint, thus stating a claim for interpleader." According to Veracity, "there [was] still a dispute as to the recipient of Veracity's rental payments," and "[i]f MCG and Banner Bank were to stipulate to the proper recipient of the interpleaded funds and future rents and if MCG were to amend its Answer to acknowledge Banner Bank's right to the interpleaded funds and future rents, Veracity would likely agree to dismissal and disbursement of the interpleaded funds to Banner Bank," "subject to reservation of Veracity's claimed interests." With respect to Veracity's claimed interests, Veracity asserted that it "disputes the amount of rent claimed by MCG but, nonetheless, has paid the amount claimed, albeit under protest so as to preserve its rights to recoup overpayments" and to "avoid any argument of waiver down the road." Veracity further explained that "[r]eserving its rights and interests to overpayments is entirely consistent with modern interpleader" and that its "reservation of rights does not preclude Veracity's interpleader action."

¶10 The district court granted MCG's motion to dismiss, concluding that "there [was] no present basis for an interpleader suit as the interpled Defendants [did] not dispute among themselves as to which of them is entitled to the funds." The court explained that neither Robinson nor MCG disputed Banner Bank's rights to the rent payments and consequently Banner Bank has an "uncontested assignment of rents and is entitled to the rents." The court also noted "the other issues of the complaint have already been determined in another case which is currently on appeal."

¶11 After the Interpleader Action was dismissed, MCG moved for an award of its attorney fees, relying on two provisions of the Lease. First, under the attorney fees provision in Paragraph 22.13, MCG argued that as a prevailing party it should receive attorney fees from Veracity in an action brought to interpret the Lease. In support, MCG asserted that "not only was [the Interpleader Action] brought to determine to whom the rent should be paid under the Lease, but Veracity also put the terms of the Lease at issue in its Complaint." Veracity did so, MCG asserted, "by specifically requesting that [the district court] interpret the Lease in its favor, either by recognizing and accepting its arguments that Veracity should not be held liable for the face value rental amount on the Lease or by holding that Veracity has no liability under the Lease whatsoever for its occupancy of the premises." MCG's assertions relied on the portions of Veracity's complaint disputing the amount due under the Lease, claiming to "retain an interest" in rents, and asking for its liability to be discharged. See supra ¶¶ 3-5. Second, under the indemnification provision in Paragraph 11.1 of the Lease, MCG argued that it should receive attorney fees because the litigation was commenced by Veracity, MCG was made a defendant to the case, and "[t]here has been no willful misconduct or gross negligence by MCG."

¶12 Veracity opposed MCG's motion for attorney fees, arguing that the plain terms of the Lease do not provide for an award of fees to MCG. According to Veracity, the Interpleader Action was not an action to "enforce or interpret any of the provisions" of the Lease and therefore did not meet any of the predicates for an award of attorney fees under the attorney fees provision. Contrary to MCG's claim that Veracity's complaint put the Lease's interpretation at issue, Veracity stated that, in its complaint, it "simply included its recitation of the underlying facts and litigation [in the Underlying Action] as background information for the Court ... and to preserve its position that MCG's subject lease is invalid and the rental amounts are in dispute." Veracity also argued that the indemnification provision similarly does not authorize an award of attorney fees to MCG for the reason that MCG had committed "willful misconduct and gross negligence." Specifically, Veracity argued that MCG did not show that its failure to meet its obligations, which included making its monthly mortgage payments and paying its prior counsel, "was anything other than willful or negligent." Veracity further complained that it had "had no opportunity to conduct discovery as to MCG's failure to meet its obligations." In its reply memorandum in support of its motion for attorney fees, MCG did not respond to Veracity's arguments and allegations related to the indemnification provision.

¶13 The district court granted MCG's motion for attorney fees, stating, "Pursuant to Rule 73 of the Utah Rules of Civil Procedure and Paragraphs 22.13 and 11.1 of the Lease, MCG is entitled to attorney fees from Veracity ...." Veracity appeals.

¶14 During the pendency of the present appeal, this court reversed the district court's summary judgment in the Underlying Action. Concluding that the district court erred in ruling that "Veracity could not defend [the] lawsuit by contesting the validity of the lease," this court remanded the Underlying Action to the district court for further proceedings. MCG S. LLC v. Veracity Networks LLC , 2018 UT App 33, ¶¶ 20-21, 415 P.3d 1174.

ISSUE AND STANDARD OF REVIEW

¶15 On appeal, Veracity contends that the district court erred in awarding attorney fees to MCG under the attorney fees provision and the indemnification provision of the Lease. "In Utah, attorney fees are awardable only if authorized by statute or contract." R.T. Nielson Co. v. Cook , 2002 UT 11, ¶ 17, 40 P.3d 1119 (cleaned up). "[I]f provided for by contract, the award of attorney fees is allowed only in accordance with the terms of the contract." Id. We review for correctness the district court's decision that attorney fees are recoverable. Id. ¶ 16.

ANALYSIS

¶16 Veracity contends that neither the attorney fees provision nor the indemnification provision authorizes an award of fees in this case and that therefore the district court erroneously awarded attorney fees to MCG. We agree that the district court should not have awarded attorney fees under the attorney fees provision. But because we are unable to discern the basis for the district court's decision to award attorney fees under the indemnification provision, we remand the case for entry of a new decision on that issue.

I. The Attorney Fees Provision

¶17 Veracity contends that the district court's award of attorney fees is erroneous under the plain language of the attorney fees provision. That provision, Veracity asserts, "only authorizes attorney fees in certain types of actions"-including actions brought to interpret the Lease-and the Interpleader Action "is not one of them." In support, Veracity argues that, in the Interpleader Action, it "only sought to have the district court resolve the competing claims to Veracity's rent payment," not to "relitigate the amount of monthly rent due under the Lease." Veracity explains that its factual recitations about the rent dispute in the Underlying Action were merely "factual background" and "were intended solely to avoid waiving its rights to seek recoupment of rent overpayments in the event that it obtains a rent reduction in the [Underlying Action]."

¶18 MCG responds that the district court correctly awarded attorney fees under the attorney fees provision because the Interpleader Action qualified as one of the types of actions for which attorney fees are authorized, namely, an action "brought to ... interpret ... the provisions of this Lease." MCG asserts that Veracity "put the terms of the Lease at issue" by "attempt[ing] to use the [Interpleader Action] to have the court interpret its rights under the Lease and to maintain its claim to a portion of the lease payments." MCG further asserts that Veracity wanted to use the Interpleader Action "to get a ruling" allowing it to "recover a portion of the monthly lease payments."

¶19 The Lease's attorney fees provision, contained in Paragraph 22.13, states:

If any action is brought to recover any rent or other amount under this Lease because of any default under this Lease, to enforce or interpret any provision of this Lease, or for recovery of possession of the Premises, the party prevailing in such action shall be entitled to recover from the other party reasonable attorneys' fees (including those incurred in connection with any appeal), the amount of which shall be fixed by the court and made part of any judgment rendered.

Under this provision's plain language, attorney fees are potentially available in only three types of actions: actions "brought to recover any rent or other amount under this Lease because of any default," actions "to enforce or interpret any provision of this Lease," and actions "for recovery of possession of the Premises." Only the second of these is at issue here. Hence, the question presented is whether the district court correctly decided that the Interpleader Action was an action brought to interpret the Lease.

¶20 We agree with Veracity that the Interpleader Action was not brought to interpret the Lease. Veracity's complaint in the Interpleader Action alleged only one count, a count for interpleader. In its prayer for relief, Veracity explained to the district court that because "there are competing demands by the Defendants against the monthly rent payments and because Veracity is unable to determine the proper party to whom rents should be paid," it asked the court to "order that Veracity may interplead the funds at issue with the Court," to restrain the defendants "from instituting any action against Veracity for the recovery of funds at issue," and to "adjudge to whom the funds should be paid." For the district court to act on these requests, it was not required to decide what the Lease meant. Rather, the court would decide to whom rent should be paid by looking at Banner Bank's notice of assignment of rents, Robinson's demand letter, and other related documents. Thus, Veracity's prayer for relief did not request that the district court interpret the Lease in the Interpleader Action.

¶21 Likewise, Veracity did not ask elsewhere in the complaint for the district court to adjudicate the Lease's meaning or Veracity's rights concerning the Lease. True, Veracity's complaint for interpleader mentioned that Veracity maintained that the Lease was invalid, that the monthly rent was "a disputed amount," and that Veracity "also claims an interest in certain portions of the rent payments." Though allegations like these are perhaps unusual in an interpleader action, Veracity did not seek an interpretation of the Lease or request an adjudication of disputed terms. Rather, Veracity acknowledged in its complaint that issues relating to the interpretation and enforcement of the Lease had been adjudicated in the Underlying Action and were on appeal to this court. The fact that Veracity sought to reserve its rights regarding the funds it had deposited in the event it succeeded on appeal in the Underlying Action does not mean that Veracity sought to adjudicate those issues anew in the Interpleader Action.

¶22 Moreover, Veracity's subsequent filings in the Interpleader Action confirm that Veracity did not seek relief related to the interpretation of the Lease. For instance, in opposing MCG's motion to dismiss, Veracity stated that it "asserted the dispute over the amount and its right to recover any overpayments" in order to "avoid any argument of waiver down the road." Veracity reiterated this point in opposing MCG's motion for attorney fees, asserting that "its recitation of the underlying facts and litigation" was included in its complaint "as background information for the Court ... and to preserve its position that MCG's subject lease is invalid and the rental amounts are in dispute." These later statements further support that the complaint's allegations about disputed amounts and claimed interests in portions of the rent payments served to reserve Veracity's rights, not to invite the court to resolve those disputes or claims. We therefore conclude that the Interpleader Action was not brought to interpret the Lease and the district court thus erred in awarding attorney fees to MCG on that basis under the attorney fees provision.

II. The Indemnification Provision

¶23 Veracity next contends that the district court's award of attorney fees is erroneous under the plain language of the indemnification provision. That provision, contained in Paragraph 11.1 of the Lease, states, in relevant part:

Tenant shall indemnify, defend and hold harmless Landlord ... from and against all demands, claims, causes of action, judgments, losses, damages, liabilities, fines, penalties, costs and expenses, including attorneys' fees, arising from ... any litigation commenced by or against Tenant to which Landlord is made a party without willful misconduct or gross negligence on the part of Landlord.

Veracity argues that this provision is inapplicable for two reasons: first, because indemnification is available only in third-party actions and, second, because MCG's willful misconduct or gross negligence necessitated and prolonged the Interpleader Action. We address each in turn.

A. Indemnification Between Contracting Parties

¶24 Veracity asserts that the indemnification provision "does not apply when Veracity sues MCG, but only when MCG is 'made a party' to litigation by some third party." Relying primarily on American Rural Cellular, Inc. v. Systems Communication Corp. , 939 P.2d 185 (Utah Ct. App. 1997), Veracity asserts that "attorney fees are not available on an indemnification theory when a contract otherwise provides for attorney fees in an intra-party action."

¶25 MCG contends that this issue is unpreserved and "should not be considered because Veracity never raised the issue" before the district court. MCG also defends the district court's decision on the merits, arguing that the indemnification provision "should be interpreted based on [its] plain language," which does "not necessarily limit the provision to third-party actions." MCG further argues that the Lease's language is distinguishable from the contract in American Rural Cellular .

¶26 As an initial matter, we agree with MCG that Veracity did not preserve this issue for appeal. "Generally, we will not consider an issue unless it has been preserved for appeal by first presenting the issue to the district court in such a way that the district court has the opportunity to rule upon it." Pepperwood Homeowners Ass'n v. Mitchell , 2015 UT App 137, ¶ 11, 351 P.3d 844. Veracity did not raise the issue of whether the Lease's indemnification provision applies only to third-party actions when it opposed MCG's motion for attorney fees or at any other time before the district court. Because Veracity did not give the district court an opportunity to rule on the issue, it has not preserved the issue for appeal.

¶27 Nevertheless, Veracity asserts that we may reach the issue under plain error review because "the district court committed plain error when it entered its attorney fee award in conflict with existing case law and the plain language of the Lease." "Under plain-error review, we may reverse the lower court on an issue not properly preserved for appeal if the appellant demonstrates that a prejudicial error should have been obvious to the district court." Id. (cleaned up). To show that "the error complained of should have been obvious to the district court," an appellant "must show that the law governing the error was clear at the time the alleged error was made." Salt Lake City v. Josephson , 2019 UT 6, ¶ 23, 435 P.3d 255 (cleaned up). "Thus, an error is not obvious if there is no settled appellate law to guide the trial court." Thomas v. Mattena , 2017 UT App 81, ¶ 13, 397 P.3d 856 (cleaned up). We accordingly proceed to consider whether the district court plainly erred in awarding fees under the indemnification provision in this intra-party action.

¶28 Veracity points to American Rural Cellular in support of its position that the district court's decision was contrary to settled Utah law. In that case, the plaintiff and defendant had an agreement that included an indemnity clause in which the plaintiff agreed to indemnify and hold the defendant "harmless from all expenses and attorney fees of whatever kind and nature in any way relating to" the parties' agreement. 939 P.2d at 192 (cleaned up). The agreement also had an arbitration clause that referred to attorney fees, stating that "all disputes in connection with [the agreement] shall be settled by means of mandatory binding arbitration" and "all costs of arbitration and reasonable billed attorney's fees shall be paid by the nonprevailing party." Id. (cleaned up).

¶29 Reading these provisions together, this court concluded that given the presence of the arbitration clause, which governed disputes between the contracting parties, "the hold-harmless provision does not apply to disputes between [the contracting parties], but instead to disputes between [one of the contracting parties] and third parties." Id. ; see also B.J. Barnes & Sons Trucking, Inc. v. Dairy Farmers of Am., Inc. , Civil No. 2:05-CV-351BSJ, 2007 WL 315708, at *8 (D. Utah Jan. 30, 2007) (explaining that this court in American Rural Cellular "declined to read an indemnity provision to include a right to attorney's fees in disputes between the parties, in contrast to defending third-party claims"); Blaisdell v. Dentrix Dental Sys., Inc. , 2012 UT 37, ¶ 9, 284 P.3d 616 (reciting American Rural Cellular 's holding). The hold-harmless provision therefore did not apply to authorize an award of attorney fees in a dispute between the contracting parties. American Rural Cellular , 939 P.2d at 192.

¶30 Although American Rural Cellular lends support to Veracity's position, Veracity has not shown that its application to this case is clear enough such that it should have been obvious to the district court. For example, Veracity has not addressed whether the rationale of American Rural Cellular applies equally to this interpleader action. Given the specific language in the Lease's indemnification provision and the distinct nature of this particular action, we cannot say that American Rural Cellular provided settled appellate law that obviously applied here such that the district court plainly erred. See Thomas , 2017 UT App 81, ¶ 13, 397 P.3d 856.

¶31 In short, we conclude that Veracity has not shown "the law governing the error was clear at the time the alleged error was made." See Josephson , 2019 UT 6, ¶ 23, 435 P.3d 255 (cleaned up). Because Veracity thus has not shown that the alleged error should have been obvious to the district court, Veracity has not demonstrated that the district court plainly erred in ignoring American Rural Cellular when it awarded attorney fees to MCG under the indemnification provision.

B. Willful Misconduct or Gross Negligence

¶32 Veracity asserts that even if the indemnification provision could authorize attorney fees in this action, the provision provides for indemnification only when MCG acts without "willful misconduct or gross negligence." And because Veracity "presented ... uncontested evidence of MCG's willful misconduct or gross misconduct," which "prolonged and complicated the interpleader action," MCG was not entitled to indemnification. Veracity also argues that the district court did not "disclos[e] its rationale" for awarding fees in the face of Veracity's evidence. MCG counters that "[b]ecause Veracity could have resolved the dispute without filing an action or naming MCG as a party, [Veracity] cannot claim that the action was caused by MCG's willful misconduct or gross negligence."

¶33 The indemnification provision states that "Tenant shall indemnify, defend and hold harmless Landlord" when, among other things, "Landlord is made a party [to litigation] without willful misconduct or gross negligence on the part of Landlord." Under this plain language, MCG could recover attorney fees only when it has not acted with "willful misconduct or gross negligence."

¶34 For this reason, MCG informed the district court when it moved for attorney fees that "[t]here has been no willful misconduct or gross negligence by MCG." Veracity then contested MCG's assertion, claiming that MCG was "ignor[ing] the genesis of this action." According to Veracity, MCG acted with willful misconduct and gross negligence when it failed "to make monthly mortgage payments of $ 5,168.72 to Banner Bank" despite receiving "almost double that amount" in monthly rental payments from Veracity and when it failed "to pay its prior counsel." As evidentiary support, Veracity cited correspondence from Banner Bank's counsel and Robinson's demand letter. MCG's conduct, Veracity contended, "resulted in competing demands for Veracity's rental payments, requiring Veracity to file [the Interpleader Action] in order to resolve those demands." Thereafter, MCG did not respond to Veracity's allegations of willful misconduct and gross negligence-even in its reply memorandum in support of its motion for attorney fees. Based solely on the parties' written filings, and without further proceedings, the district court summarily concluded that MCG was entitled to attorney fees under Paragraph 11.1, thereby impliedly concluding that MCG did not act with willful misconduct or gross negligence.

¶35 Generally, "where the inadequacy of the [district] court's findings of fact and conclusions of law results in our inability to ascertain the basis of the district court's decision, we are prevented from effectively reviewing the district court's decision and may remand for the entry of more-detailed findings." Maak v. IHC Health Services, Inc. , 2016 UT App 73, ¶ 45, 372 P.3d 64 (cleaned up). This is so because "without insight into the district court's reasoning, we are unable to ascertain whether the district court's [decision] follows logically from, and is supported by, the evidence." Id. ¶ 46 (cleaned up).

¶36 For the district court here to award attorney fees to MCG, it was required to decide whether there was an absence of willful misconduct or gross negligence on MCG's part. And where the parties controverted whether MCG acted with willful misconduct or gross negligence, the district court was presented with a factual and legal issue. Although the district court's decision awarding attorney fees implicitly resolved the dispute in MCG's favor, we cannot discern the district court's basis for doing so. In particular, the district court's conclusory award of attorney fees under Paragraph 11.1 does not disclose how the court assessed Veracity's evidence, which went unrefuted, or why the court reached its apparent conclusion that MCG did not commit willful misconduct or act with gross negligence. In other words, the district court did not identify the factual or legal basis for its award.

¶37 Because we lack insight into the district court's rationale for its decision, we cannot effectively review it. We therefore remand the issue of attorney fees under the indemnification provision to the district court for further proceedings, which may require an evidentiary hearing, and for the court to determine the issue anew and to provide reasoned analysis supporting its decision. See id. ¶¶ 1, 45-46 (remanding a district court's ruling where this court was "unable to discern the basis for the district court's conclusion" because the ruling did not provide "insight into the district court's reasoning" or "indicate what record evidence supports its determination");

Tillotson v. Meerkerk , 2015 UT App 142, ¶ 14, 353 P.3d 165 (same); see also J. Pochynok Co. v. Smedsrud , 2005 UT 39, ¶¶ 12-13, 116 P.3d 353 (remanding the issue of attorney fees to the district court where the court's reasoning supporting its award was not apparent in the record); Myrah v. Campbell , 2007 UT App 168, ¶ 36, 163 P.3d 679 (same).

III. Attorney Fees on Appeal

¶38 MCG asks this court to award it the attorney fees that it incurred in defending this appeal. "Generally, a party that received attorney fees below and prevails on appeal is entitled to fees reasonably incurred on appeal." Giles v. Mineral Res. Int'l, Inc. , 2014 UT App 259, ¶ 25, 338 P.3d 825. Because we vacate the district court's attorney fees award to MCG and because MCG has not prevailed on appeal, MCG is not entitled to attorney fees incurred on appeal.

CONCLUSION

¶39 The district court erred in awarding attorney fees to MCG under the attorney fees provision of the Lease, and its reasoning for awarding attorney fees under the indemnification provision is not adequately detailed to permit meaningful appellate review. Accordingly, we vacate the attorney fees award and remand the case with the instruction that the district court conduct further proceedings and enter the necessary findings and conclusions of law regarding the propriety of awarding attorney fees under the indemnification provision.

      "An action in interpleader is a proceeding in equity in which a person who has possession of money or property which may be owned or claimed by others seeks to rid himself of risk of liability, or possible multiple liability, by disclaiming his interest and submitting the matter of ownership for adjudication by the court." Terry's Sales, Inc. v. Vander Veur , 618 P.2d 29, 31 (Utah 1980) ; see also Interpleader , Black's Law Dictionary 943 (10th ed. 2014) (explaining that interpleader is a "suit to determine a right to property held by a usu[ally] disinterested third party (called a stakeholder ) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership").

      In arguing the motion to dismiss, the parties disputed whether "modern interpleader," which allows for actions "in the nature of interpleader," is consistent with Utah law. See generally 44B Am. Jur. 2d Interpleader § 1 (2017) ("An action in the nature of interpleader is one in which the interpleading plaintiff asserts an interest in the subject matter of the dispute but is otherwise identical to traditional interpleader."). We need not decide whether Utah law allows for an action "in the nature of interpleader." As discussed below, the only relevant question about the nature of the present action is whether the Interpleader Action is an action to interpret the Lease as required by the attorney fees provision. See infra ¶ 19.

      The indemnification provision states that Tenant shall indemnify Landlord for losses "arising from ... any litigation commenced by or against Tenant to which Landlord is made a party without willful misconduct or gross negligence on the part of Landlord."

      Additionally, after Banner Bank filed a proposed order to distribute the interpleaded funds, Veracity objected to the proposed language that "Banner Bank has an uncontested assignment of rents and is entitled to the interpled funds." Veracity complained that the "paragraph should be modified to reflect that Veracity disputes the amount of rent and is pursuing relief from the Utah Court of Appeals" in the Underlying Action. Veracity proposed modifying the paragraph to state that "Banner Bank has an assignment of rents and is entitled to the interpled rents subject to Veracity's reservation of rights as to the disputed amounts and the resolution of issues currently on appeal." The district court eventually entered an order simply stating that "the interpleaded funds in this matter [will] be paid by the Clerk of the Court to Banner Bank."

      Veracity's prayer for relief also asked that "Veracity be discharged from all liability under the premises." In the district court, MCG relied on this language as evidence that Veracity was asking the court to interpret the Lease. On appeal, Veracity complains that MCG "mischaracteriz[ed]" this part of the complaint, explaining that this portion of its prayer for relief meant only that it wanted to "be relieved of any further liability for the funds that it was depositing into the court." On appeal, MCG does not persuasively argue for an alternative interpretation of this particular language.

      Veracity's objection to a proposed order to distribute the interpleaded funds was consistent with these statements. In that objection, Veracity noted that it "dispute[d] the amount of rent and [was] pursuing relief from the Utah Court of Appeals" in the Underlying Action.

      Because of our resolution of this issue, we need not resolve Veracity's alternative argument that MCG was not a prevailing party as against Veracity as required by the attorney fees provision.

      "Our supreme court recently noted the 'ongoing debate about the propriety of civil plain error review,' " but has not resolved that debate for purposes of Utah law. Frugal Flamingo Quick Stop v. Farm Bureau Mutual Ins. Co. , 2018 UT App 41, ¶ 10 n.3, 420 P.3d 57 (quoting Utah Stream Access Coal. v. Orange St. Dev. , 2017 UT 82, ¶ 14 n.2, 416 P.3d 553 ). Because MCG has not challenged the applicability of plain error review, we decline to resolve the debate here. See, e.g. , Gerwe v. Gerwe , 2018 UT App 75, ¶ 6 n.1, 424 P.3d 1113.

      Veracity also cites other cases for the proposition that contractual indemnification clauses "cannot support an award of attorney fees in intra-party litigation." But those cases involve different contractual language and are not interpleader actions. See, e.g. , Oscar Gruss & Son, Inc. v. Hollander , 337 F.3d 186, 191, 198-200 (2d Cir. 2003) ; Canopy Corp. v. Symantec Corp. , 395 F.Supp.2d 1103, 1107, 1114-16 (D. Utah 2005) (applying Utah law) ; Century Village, Inc. v. Chatham Condo. Ass'ns , 387 So.2d 523, 523-24 (Fla. Dist. Ct. App. 1980). Moreover, "there is a split of authority as to whether an indemnification provision applies to claims between the parties to the agreement or only to third-party claims." See NevadaCare, Inc. v. Department of Human Services , 783 N.W.2d 459, 470-71 (Iowa 2010) (collecting cases). Veracity therefore has not shown that there was pertinent and well-established law to guide the district court such that the alleged error should have been obvious. See State v. Ross , 951 P.2d 236, 238-39 (Utah Ct. App. 1997) (considering the status of Utah law and whether other jurisdictions have reached consensus in evaluating whether an alleged error should have been obvious to the district court).

      In reaching this conclusion, we harbor doubts as to the legal correctness of the district court's decision that the indemnification provision authorizes an award of attorney fees in this case. Yet we are constrained by the plain-error lens through which we must analyze this issue and reject Veracity's argument solely on its failure to establish obviousness of any error.

      Veracity also argues that the award of attorney fees here was barred by Capson v. Brisbois , 592 P.2d 583 (Utah 1979), which-according to Veracity-entitled it, as the interpleading stakeholder, "to seek an award of attorney fees," not MCG. Because Veracity raises this argument for the first time on appeal, it again seeks our review of this issue under plain error review. In making this argument, Veracity does not show how Capson might operate where, as here, contractual language between the interpleading stakeholder and a defendant arguably might authorize an award of attorney fees. As a result, Veracity has not persuaded us that any alleged error should have been obvious to the district court. See Thomas v. Mattena , 2017 UT App 81, ¶ 13, 397 P.3d 856.

      Given our resolution of this case, we need not and do not express an opinion on Veracity's alternative argument that this court's decision in MCG Southern LLC v. Veracity Networks LLC , 2018 UT App 33, 415 P.3d 1174, means that the Lease may yet be "found to be invalid" in the Underlying Action and its provisions therefore could not "form a basis for a fee award" in the Interpleader Action.