author: PARRISH, Justice:

text:
    2003 UT 52
    Larry L. HUTCHINGS, Plaintiff and Petitioner, v. STATE of Utah, Defendant and Respondent.
    No. 20010419.
    Supreme Court of Utah.
    Nov. 21, 2003.
    D. Matthew Moscon, Marc T. Rasich, Justin B. Palmer, David J. Williams, Salt Lake City, for plaintiff.
    Mark L. Shurtleff, Att’y Gen., Erin Riley, Asst. Att’y Gen., Salt Lake City, for defendant.
   PARRISH, Justice:

111 In this appeal, we review the court of appeals’ decision affirming the district court’s summary dismissal of Larry L. Hutchings’ second petition for post-conviction relief. The court of appeals held that the claims contained in Hutchings’ second petition were raised, or could have been raised, in previous proceedings and were therefore precluded by section 106 of Utah’s Post Conviction Remedies Act, Utah Code Ann. §§ 78-35a~101 to - 110 (1996). We affirm.

BACKGROUND

¶ 2 In July 1992, Hutchings pled guilty to two second degree felony counts of sexual abuse of a child. Instead of imprisoning Hutchings to serve his concurrent one-to-fifteen-year prison terms, the district court stayed the sentence and placed Hutchings on probation for a period of thirty-six months. Hutchings’ probation was conditioned on, among other things, his enrollment in and completion of a sex offender treatment program. Following sentencing, Hutchings moved to New York.

¶ 3 In May 1994, the district court issued an order to show cause why Hutchings’ probation should not be revoked on the basis of a motion and affidavit alleging in part that Hutchings had failed to complete a sex offender treatment program. Following a hearing on the order to show cause, for which Hutchings did not appear, the district court found that Hutchings had violated the terms - of his probation. The district court issued successive warrants for Hutchings’ arrest in December 1994 and February 1995.

¶ 4 In April 1995, New York law enforcement officers arrested Hutchings on the Utah warrant after stopping him for a motor vehicle violation. Utah took no action to extradite Hutchings from New York at that time, and he was eventually released and ordered to pay a fine. Hutchings was again arrested in June 1996, at which time he was extradited to Utah to appear before the district court with appointed counsel. In Au: gust 1996, due to Hutchings’ failure to complete a sex offender program and failure to report to his probation officer, the district court revoked Hutchings’ probation and committed him to the Utah State Prison to serve his original sentence.

¶ 5 Two months after the probation revocation hearing, Hutchings appealed. He also moved for the appointment of counsel to assist with his appeal. The district court scheduled a hearing on the motion, but Hutchings’ appeal was dismissed in the intervening time due to his failure to submit a docketing statement.

¶ 6 In January 1997, Hutchings filed pro se his first petition for post-conviction relief pursuant to rule 65C of the Utah Rules of Civil Procedure. The petition challenged the revocation of his probation on numerous grounds, including deficiencies in the service and contents of the district court’s orders to show cause, procedural irregularities in Utah’s extradition of Hutchings from New York, and ineffective assistance of counsel.

¶ 7 After a preliminary review of Hutch-ings’ first petition, the district court indicated that it had authority under section 109 of the Post Conviction Remedies Act to appoint counsel for Hutchings. The district court did not appoint counsel at that time, however, asking the State to first investigate the issue of the county’s responsibility to pay for any counsel appointed. Ultimately, the district court declined to appoint counsel and, in an order dated August 1, 1997, dismissed Hutchings’ first petition for post-conviction relief as frivolous on its face.

¶ 8 Hutchings appealed the dismissal of his first petition. The court of appeals affirmed the district court’s dismissal. Hutchings then petitioned for a rehearing. That petition was denied by order dated March 23, 1998. Significantly, Hutchings did not file a petition for a writ of certiorari.

¶,9 Twenty months later, in November 1999, Hutchings filed a rule 65B petition for extraordinary relief with this court. This court reviewed the petition and determined that, although it was filed under rule 65B, it was in substance a petition for post-conviction relief. Accordingly, this court transferred the petition to the district court for post-conviction proceedings consistent with rule 65C. The petition thereby became Hutchings’ second petition for post-conviction relief.

¶ 10 The district court dismissed Hutch-ings’ second petition, whereupon Hutchings, still acting pro se, appealed. The court of appeals affirmed the dismissal by memorandum decision in March 2001. Hutchings subsequently petitioned for a writ of certiorari, which this court granted along with appointment of counsel.

ANALYSIS

¶ 11 “On a writ of certiorari, we review the decision of the court of appeals, not that of the district court, and apply the same standard of review used 'by the court of appeals.” Clark v. Clark, 2001 UT 44, ¶ 8, 27 P.3d 538’ (citations and quotation omitted). This appeal presents questions of law, which we review for correctness. Wickham v. Galetka, 2002 UT 72, ¶ 7, 61 P.3d 978 (“Generally, an appeal from a judgment on a petition for post-conviction relief raises questions of law reviewed for correctness, giving no deference to the post-conviction court’s conclusion.” (citation omitted)).

¶ 12 In this opinion, we review the court of appeals’ March 2001 decision affirming the district court’s dismissal of Hutchings’ second petition for post-conviction relief. Hutchings also asks this court to review the January 1998 decision of the court of appeals affirming the dismissal of his first petition on the theory that his second petition was merely a continuation of the first. We decline this invitation in light of the fact that Hutchings failed to seek certiorari review of the court of appeals’ decision regarding his first petition. Hutchings’ filing of an extraordinary writ directly with this court some twenty months after the court of appeals finally adjudicated his first petition is properly characterized as the filing of a second petition, rather than as an appeal regarding the first petition. Accordingly, our review is limited to the issue of whether the court of appeals properly affirmed the trial court’s dismissal of Hutch-ings’ second petition for post-conviction relief.

¶ 13 The court of appeals found section 106 of the Post Conviction Remedies Act, Utah Code Ann. §§ 78-35a-101 to -110 (1996), dis-positive of the case. Hutchings v. State, 2001 UT App 95U (mem.). Section 78-35a-106(1) precludes a petitioner from seeking relief on any ground that “was raised or addressed at trial or on appeal” or that “could have been but was not raised at trial or on appeal.” Utah Code Ann. § 78-35a-106(l)(b), (c). In addition, the section precludes relief based on any ground that “was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief.” Id. § 78-35a-106(l)(d).

¶ 14 Proceedings in all petitions for relief filed under the Post Conviction Remedies Act are governed by rule 65C of the Utah Rules of Civil Procedure. Wickham, 2002 UT 72 at ¶ 10. Rule 65C complements section 78-35a-106 by providing for the summary dismissal of claims that have already been addressed by the court. Subparagraph (g)(1) of the rule directs the assigned judge to review the petition, and “if it is apparent to the court that any claim has been adjudicated in a prior proceeding, or if any claim appears frivolous on its face, the court shall forthwith issue an order dismissing the claim_Proceedings on the claim shall terminate with the entry of the order of dismissal.” Utah R. Civ. P. 65C(g)(l). These summary dismissal procedures were designed to balance the “requirements of fairness and due process against the public’s interest in the efficient adjudication of the enormous volume of post-conviction relief cases.” Id. advisory committee’s note.

¶ 15 With this background in mind, we turn to the particular issues Hutchings raises on appeal. Por purposes of discussion, we group these claims into three categories. The first category consists of Hutchings’ claims that his constitutional and statutory rights were violated in connection with his extradition from New York and the hearing on his parole violations. The second category consists of Hutchings’ claim that he was denied his right to a timely parole hearing. The third category consists of Hutchings’ claims that he was denied the effective assistance of counsel at his probation revocation hearing, in perfecting his appeal, and in the prosecution of his first petition for post-conviction relief.

[2] ¶ 16 We first examine Hutchings’ claims relating to his extradition and the hearing on his parole violations. We find that all of these claims are barred because Hutchings had opportunities to present them on direct appeal from the probation revocation, in the first petition for post-conviction relief, and in the appeal from dismissal of that petition. The court of appeals appropriately affirmed the dismissal of all claims that Hutchings raised, or could have raised, in these previous proceedings.

¶ 17 We next examine Hutchings’ claim that he was denied a timely parole hearing. Hutchings argues that because he pled guilty to two second degree felonies, he was entitled to an original parole hearing no later than February 20, 1997 — six months from the date of his incarceration. Due to a clerical error, the judgment entered by the district court erroneously reflected guilty pleas for one second degree felony (sexual abuse of a child) and one first degree felony (aggravated sexual abuse of a child). According to Hutchings, the effect of this error was to delay his original parole hearing in violation of Utah Code section 77-27-7. In fact, the Board of Pardons and Parole did not provide Hutchings with a parole hearing until October 1999 — nearly three years after his incarceration.

¶ 18 Hutchings’ claim regarding the timeliness of his parole hearing did not arise until after the filing of his first petition for post-conviction relief and therefore is not procedurally barred. However, because Hutchings has since received a hearing and was in fact on parole at the time of oral argument, this issue is now moot.

¶ 19 We finally turn to Hutchings’ claims of ineffective assistance of counsel. Specifically, Hutchings asserts that counsel at the revocation hearing was ineffective and that he was wrongfully denied counsel for purposes of his appeal from the probation revocation and for his first petition for post-conviction relief.

¶ 20 Hutchings’ claims with respect to the revocation hearing and the direct appeal fail on procedural grounds because they were, or could have been, raised in Hutch-ings’ first petition. Hutchings’ claim that he was wrongfully denied counsel in connection with his first petition for post-conviction relief fails on substantive grounds. While Hutchings may have benefitted from professional assistance in the drafting and presentation of his petition, there is no statutory or constitutional right to counsel in a civil petition for post-conviction relief. Utah Code Ann. § 78-35a-109 (1999) (leaving the appointment of counsel in a petition for post-conviction relief not summarily dismissed to the court’s discretion); Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (explaining that the fundamental fairness mandated by the Due Process Clause does not require states to provide counsel for post-conviction proceedings). Because Hutchings had no right to the assistance of counsel in preparing his first petition, the lack of appointed counsel cannot provide a basis for post-conviction relief.

CONCLUSION

¶21 The court of appeals appropriately affirmed the trial court’s dismissal of Hutch-ings’ second petition for post-conviction relief as successive. Most of the claims were, or could have been, raised in prior proceedings and accordingly were precluded by section 106 of the Post Conviction Remedies Act. The remaining claims were properly rejected because they provided no legitimate basis for post-conviction relief.

¶ 22 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Judge NEHRING concur in Justice Parrish’s opinion.

¶ 23 Justice RUSSON did not participate herein; District Judge RONALD E. NEHR-ING sat.

      . Specifically, the petition argued that Hutch-ings' sentence should be vacated because (1) Hutchings had not been properly served with the affidavit, motion, and order to show cause alleging the probation violations that ultimately led to his incarceration; (2) the order to show cause failed to inform Hutchings of his right to counsel and his right to present evidence; (3). the State of Utah lacked jurisdiction over Hutchings because it had failed to timely extradite him after his arrest in New York; and (4) Hutchings had received ineffective assistance of counsel by virtue of appointed counsel’s failure to discuss the facts of the case and potential legal arguments with Hutchings prior to the probation revocation hearing.

      . Rule 65C of the Utah Rules of Civil Procedure provides for the summary dismissal of post-conviction relief claims that appear frivolous on their face. Utah R. Civ. P. 65C(g)(l).
      A petition is frivolous on its face when, based solely on the allegations contained in the pleadings and attachments, it appears that: (A) the facts alleged do not support a claim for relief as a matter of law; (B) the claims have no arguable basis in fact; or (C) the petition challenges the sentence only and the sentence has expired prior to the filing of the petition.
      Utah R. Civ. P. 65C(g)(2).

      . The transfer conformed to rule 65C, which provides that a proceeding for post-conviction relief is commenced by filing a petition "with the clerk of the district court in the county in which the judgment of conviction was entered.” Utah R. Civ. P. 65C(b).

      . Specifically, Hutchings asserts that the State of Utah (1) violated his due process rights by failing to comply with sections 10 and 15 of the Uniform Criminal Extradition Act, Utah Code Ann. §§ 77-30-1 to -28 (1999); (2) deprived him of his statutory and due process rights by failing to provide him with timely and complete notice of the charges against him and his rights at the probation revocation hearings; (3) unreasonably delayed in extraditing him; (4) violated the Full Faith and Credit Clause and his constitutional right to protection from double jeopardy; and (5) violated his due process rights by failing to comply with its statutory obligations under the Interstate Compact for Out of State Parolee Supervision Act, Utah Code Ann. §§ 77-27-24 to -30 (1999).

      . Section 77-27-7 states:
      The Board of Pardons and Parole shall determine within six months after the date of an offender’s commitment to the custody of the Department of Corrections, for serving a sentence upon a conviction of a felony or class A misdemeanor offense, a date upon which the offender shall be afforded a hearing to establish a date of release or a date for rehearing, and shall promptly notify the offender of the date.
      Utah Code Ann. § 77-27-7(1) (1999). Hutchings contends that the error in the judgment led the Board of Pardons and Parole to delay his original parole hearing pursuant to section 77-27-9, which provides that a person committed for aggravated sexual abuse of a child may not be eligible for parole until he or she has served the minimum mandatory sentence imposed by the court. Id. § 77-27-9(2)(a).

      . Despite the clerical error in the judgment, Hutchings’ sentence correctly reflected his conviction for two second degree felonies, as noted in the court of appeals' decision. Hutchings, 2001 UTApp 95U.

      . The parties agreed at oral argument that Hutchings was already on parole. We also note that a rule 65 C petition is not an appropriate avenue of relief for "actions taken by the Board of Pardons and Parole." See Utah Code Ann. § 78-35a-102(2) (1999).

      . In this regard, we note the exceptional work of Hutchings’ court-appointed counsel in this proceeding, and we express our appreciation for counsel’s willingness to undertake the representation.


source: Caselaw Access Project

author: NEHRING, Justice:

license: Public Domain

text:
    2003 UT 57
    Marc SMITH, Plaintiff, Appellant, and Cross-Appellee, v. GRAND CANYON EXPEDITIONS COMPANY, Martin Mathis, Michael Denoyer, Ronald R. Smith, Donald Saunders, John Does 1 through 5, and Jane Does 1 through 5, Defendants, Appellees, and Cross-Appellants.
    No. 20010667.
    Supreme Court of Utah.
    Dec. 16, 2003.
    Rehearing Denied Feb. 4, 2004.

      Benson L. Hathaway, Jr., Corbin B. Gordon, Peter Stirba, Brady L. Rasmussen, Salt Lake City, for Smith.
    John A. Anderson, Matthew M, Durham, Richard C. Skeen, Salt Lake City, for Grand Canyon Expeditions, Mathis, Denoyer, and Saunders.
   NEHRING, Justice:

¶ 1 This appeal concerns the termination of Marc Smith’s employment and the amount of money owed Mr. Smith by Grand Canyon Expeditions for the purchase of Mr. Smith’s stock in the company. This appeal comes to us for interlocutory review of rulings made by the trial court on Smith’s motion for leave to amend his complaint and three summary judgment motions brought by Grand Canyon. We affirm the decisions of the trial court on all issues except the trial court’s refusal to dismiss the individual defendants. On that issue, we reverse the decision of the trial court and remand for dismissal of the individual defendants.

¶ 2 For many years, Mr. Smith worked for a river rafting company, Grand Canyon Expeditions, Inc. That company is not the defendant here. Grand Canyon Expeditions, Inc. was sold to another group of individuals, including defendants Mathis and Denoyer, and was renamed Grand Canyon Expeditions Company. This company and its employees are the defendants here, to whom we will collectively refer as “Grand Canyon.”

¶ 3 Smith stayed on with the new company as vice president of operations and acquired a shareholder interest. The terms of Mr. Smith’s employment with Grand Canyon were set out in an employment agreement. As a shareholder in Grand Canyon, Mr. Smith executed a buy-sell agreement with the company providing that upon leaving Grand Canyon, his stock would be repurchased by the remaining shareholders for a certain percentage of the net book value.

¶ 4 After six years, Mr. Smith was asked to leave Grand Canyon. The parties disagree over the reasons for Mr. Smith’s departure, but it is clear that a fetid atmosphere enveloped them by the summer of 1992. Grand Canyon believed it had grounds to dismiss Mr. Smith for cause. Mr. Smith rejected any claim that he was blameworthy. In this setting, Mr. Smith and Grand Canyon negotiated and signed a separation agreement that called for Mr. Smith’s resignation and detailed the effect of his resignation on both the employment and buy-sell agreements.

¶ 5 The purpose, scope, and legal consequences of the separation agreement are central to this appeal. Several provisions of the separation agreement feature prominently in our analysis and therefore merit mention, including (1) Mr. Smith’s agreement to resign, (2) agreement on the value of Mr. Smith’s Grand Canyon stock together with payment terms, (3) Grand Canyon’s agreement to pay Mr. Smith severance pay “in lieu of any other amounts or benefits which may be due from the Corporation as provided in the Employment Agreement or otherwise,” and (4) Grand Canyon’s agreement to waive the non-compete clause in the employment agreement. Grand Canyon paid, and Mr. Smith accepted, the payments promised in the separation agreement.

¶ 6 The hope that the separation agreement would bring peace to the conflict between Grand Canyon and Mr. Smith proved to be illusory. Several years after Mr. Smith left the company, Grand Canyon received a refund of nearly a million dollars that it had paid to the state of Arizona as a “transaction privilege tax.” The Arizona Supreme Court held the tax to have been unlawfully collected from companies like Grand Canyon and ordered retroactive refunds. The refund to Grand Canyon included tax payments made during the years Mr. Smith was with the company. Although Grand Canyon passed some of the refund through to customers, it appropriately retained most of it as corporate income.

¶ 7 At the time Mr. Smith left Grand Canyon, the company had sought the refund, but the Arizona Supreme Court had not yet ruled on the matter. The refund was not mentioned in the separation agreement.

¶ 8 Mr. Smith sued Grand Canyon and its principals. He claimed that Grand Canyon breached the employment contract by terminating him. He also claimed that Grand Canyon breached the implied covenant of good faith and fair dealing by artificially undervaluing the buyout value of Mr. Smith’s stock and by refusing to include the Arizona tax refund as part of the net book value of Grand Canyon. Mr. Smith also unsuccessfully sought to amend his complaint to seek recovery of a portion of the tax refund under an unjust enrichment theory.

¶ 9 Meanwhile, Grand Canyon also filed a series of motions for summary judgment. When the dust settled, the trial court (1) dismissed Mr. Smith’s breach of contract claim relating to his termination by reason of accord and satisfaction, (2) dismissed Mr. Smith’s implied covenant of good faith and fair dealing claims as they related to the valuation of his Grand Canyon stock, (3) preserved Mr. Smith’s claim that Grand Canyon breached its implied covenant of good faith and fair dealing relating to the Arizona tax refund, (4) dismissed Mr. Smith’s claim for punitive damages, (5) dismissed Mr. Smith’s claim for attorney fees, and (6) denied Mr. Smith’s motion to amend his complaint to assert a claim for unjust enrichment.

¶ 10 In this interlocutory appeal, we review each of these rulings as well as the trial court’s denial of a motion made by the individual defendants to dismiss the claims as against them.

I. MR. SMITH’S EMPLOYMENT-RELATED CLAIMS

¶ 11 We first take up the trial court’s determination that Mr. Smith’s employment claims are barred by accord and satisfaction. “We review the district court’s summary judgment ruling for correctness, granting no deference to its legal conclusions.” Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362.

¶ 12 Before turning to the merits of this issue, we address Mr. Smith’s procedural challenge. ' Mr. Smith claims that pursuant to rule 8(e) of the Utah Rules of Civil Procedure, Grand Canyon was required to plead accord and satisfaction as an affirmative defense. Mr. Smith argues that because it did not, Grand Canyon should not be permitted to prevail on this theory. It is clear, however, that Grand Canyon raised accord and satisfaction in its motion for summary judgment, and Mr. Smith did not object. We have previously noted that

rule 8(c), U.R.C.P., requires that affirmative defenses be pleaded. It is a good rule whose purpose is to have the issues to be tried clearly framed. But it is not the only rule in the book of Rules of Civil Procedure. They must all be looked to in the light of their even more fundamental purpose of liberalizing both pleading and procedure to the end that the parties are afforded the privilege of presenting whatever legitimate contentions they have pertaining to their dispute. What they are entitled to is notice of the issues raised and an opportunity to meet them. When this is accomplished, that is all that is required. Our rules provide for liberality to allow examination into and settlement of all issues bearing upon the controversy, but safeguard the rights of the other party to have a reasonable time to meet a new issue if he so requests.

Union Bank v. Swenson, 707 P.2d 663, 668 (Utah 1985); Cheney v. Rucker, 14 Utah 2d 205, 381 P.2d 86, 91 (1963). Here, no one questions that Mr. Smith had adequate notice that Grand Canyon intended to employ the affirmative defense of accord and satisfaction. The trial court therefore properly considered it.

¶ 13 Next, we turn to the merits of Mr. Smith’s challenge to the trial court’s determination that the existence of an accord and satisfaction warranted summary dismiss- ■ al of Mr. Smith’s wrongful discharge claims. We have developed a three-part test for accord and satisfaction. There must be (1) a bona fide dispute over an unliquidated amount, (2) a payment made in full settlement of the entire dispute, and (3) an acceptance of the payment. Estate Landscape v. Mountain States, 844 P.2d 322, 325 (Utah 1992). Mr. Smith insists that none of these elements were established by the record as a matter of law. We disagree.

¶ 14 First, Mr. Smith contends that the record does not support the trial court’s finding that there was a bona fide dispute over an unliquidated claim at the time the separation agreement was executed. However, even his grudging concession in his brief that “he surely was aware that there may be concerns related to the termination of his employment” is sufficient to fulfill the bona fide dispute element of accord and satisfaction. The dispute over the future of Mr. Smith’s employment contract with Grand Canyon carried with it inevitable, but uncertain, economic consequences. Mr. Smith’s employment-based breach of contract claim was, therefore, “a good-faith disagreement over the amount due under the contract” and well within the ambit of the first element of accord and satisfaction.

¶ 15 Secondly, the plain language of the separation agreement demonstrates that the severance pay and release from the non-compete covenant granted to Mr. Smith constituted payment in full settlement of the employment dispute. Section 6 of the separation agreement unambiguously states that Mr. Smith’s severance pay is “in lieu of any other amounts or benefits which may be due from the Corporation as provided in the Employment Agreement or otherwise.” Mr. Smith has failed to point to any evidence in the record showing that the parties intended this language to permit the survival of claims that Grand Canyon breached its employment agreement with Mr. Smith.

¶ 16 Lastly, it is undisputed that Mr. Smith accepted the severance pay and enjoyed the benefit of release from the non-compete clause. Thus, all three prongs of the test for accord and satisfaction are easily met, and the trial court was correct in summarily dismissing Mr. Smith’s breach of contract claims relating to his termination from Grand Canyon.

II. MR. SMITH’S STOCK VALUATION CLAIMS

¶ 17 Contrary to the assertions of Mr. Smith, the trial court did not extend the reach of its accord and satisfaction analysis to the dispute over the valuation of Grand Canyon. Rather, the court determined that no material facts were at issue relating to Mr. Smith’s claim that Grand Canyon breached the implied covenant of good faith and fair dealing flowing from the buy-sell agreement. We review for correctness, and affirm, the trial court’s conclusion that there were no material facts in dispute. See Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362.

¶ 18 Grand Canyon acquired a right to purchase Mr. Smith’s stock in the company under the terms of the buy-sell agreement. The purchase price was based on the net book value of the company. The buy-sell agreement expressly addressed the “who” and “how” of the net book valuation, stating:

The determination of net book value shall be made by the accountant servicing the Corporation (Grand Canyon) and shall be made according to generally accepted accounting principles. Any such determination shall be conclusive on the parties.

Mr. Smith now claims that Grand Canyon’s value was rendered “artificially” low through the use of accounting practices which, while they, may have conformed to generally accepted accounting principles (“GAAP”), clashed with the reasonable expectations of the parties. According to Mr. Smith, those expectations mandated the application of principles selected to yield a higher, “real” value of the company, and by selecting the “artificial” over the “real” net book value, Grand Canyon breached its implied covenant of good faith and fair dealing with Mr. Smith.

¶ 19 Mr. Smith argues that the buy-sell agreement empowered Grand Canyon with discretion to determine the net book value of the company and that it unlawfully abused this discretion. Mr. Smith correctly states that where one party has discretion over another according to the terms of a contract, that party must act with good faith and fair dealing. Res. Mgmt. Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028, 1037 (Utah 1985); see also Cook v. Zions First Nat’l Bank, 919 P.2d 56, 60 (Utah Ct.App.1996) (“When one party to a contract retains power or sole discretion in an express contract, it must exercise that discretion reasonably and in good faith”).

¶ 20 Although the implied covenant of good faith and fair dealing cannot be waived, Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 n. 4 (Utah 1985), the degree to which a party to a contract may invoke the protections of the covenant turns on the extent to which the contracting parties have defined their expectations and imposed limitations on the exercise of discretion through express contract terms. Malibu Inv. Co. v. Sparks, 2000 UT 30, ¶ 19, 996 P.2d 1043. Mr. Smith and Grand Canyon expressly identified net book value as the valuation benchmark to be used in valuing Mr. Smith’s stock. Standing alone, this contract term would necessarily have required supplementation by numerous implied terms relating to how net book value would be gauged and who would do it.

¶ 21 Mr. Smith and Grand Canyon did not, however, leave the manner of valuation to implication. Instead, they bargained for it. By expressly delegating the authority for conducting the net book valuation to the company’s accountant and by selecting compliance with GAAP as the valuation methodology, Mr. Smith and Grand Canyon substantially narrowed the role of any implied legal or factual elements in defining their shared expectations.

¶22 The trial court expressed the view that because GAAP is elastic in its application, compliance with GAAP did not conclusively establish that Grand Canyon satisfied the covenant of good faith and fair dealing. This assessment expands the scope of the implied covenant too broadly. The reach of the implied covenant of good faith and fair dealing extends no further than the purposes and express terms of the contract. Id. Where, as here, the express contract term defines and limits discretionary performance, the implied covenant has little, if any, utility.

¶23 The trial court determined that Mr. Smith’s expert concluded that “the approach of the corporate accountant in dealing with expenses, depreciation, purchase price allocations, etc., though ‘aggressive,’ was nonetheless within the range of generally accepted accounting principles.” Because neither party has raised on appeal the issue of whether disputed material facts are present on the record from which the trier of fact could conclude that the accounting practices used to value Mr. Smith’s shares did not conform to GAAP, we have no reason to doubt the correctness of the trial court. Thus, because the methodology used to value Mr. Smith’s shares met the standards agreed on by the parties to limit discretion, the trial court correctly ruled that Grand Canyon did not breach its implied covenant of good faith and fair dealing.

III. MR. SMITH’S ARIZONA TAX REFUND CLAIMS

¶24 Grand Canyon appeals from two of the trial court’s rulings which relate to the Arizona tax refund. First, Grand Canyon appeals the trial court’s denial of its motion to exclude as unreliable and irrelevant the opinion testimony of Mr. Smith’s accounting expert witness, Derk Rasmussen. Mr. Rasmussen testified, over Grand Canyon’s objection, that in his opinion Grand Canyon’s failure to treat the Arizona tax refund as a “prior period adjustment” violated GAAP. This opinion is material to whether Grand Canyon breached its implied covenant of good faith and fail' dealing in its treatment of the tax refund under the buy-sell agreement. Were the refund to be booked as a prior period adjustment, Mr. Smith would, in Mr. Rasmussen’s view, be entitled to a portion of the refund proceeds owing to an increased net book value of Grand Canyon. Secondly, Grand Canyon argues that regardless of whether Mr. Smith’s expert witness testimony was admitted, it did not breach the implied covenant of good faith and fair dealing because this covenant was extinguished upon termination of the contract. We address each issue in turn.

A. Mr. Smith’s Expert Witness Testimony

26 We review the trial court’s decision not to exclude Mr. Rasmussen’s expert testimony for an abuse of discretion. Alder v. Bayer Corp., 2002 UT 115, ¶ 20, 61 P.3d 1068. Grand Canyon appeals the trial court’s denial of its motion to exclude Mr. Rasmussen’s testimony on the sole ground that according to its own accounting expert, Mr. Rasmussen’s opinion was flawed. Grand Canyon neither challenged the credentials of Mr. Rasmussen nor claimed that his field of expertise was somehow “novel.” Patey v. Lainhart, 1999 UT 31, ¶ 16, 977 P.2d 1193. Rather, it contended only that Mr. Rasmussen’s opinion concerning Grand Canyon’s accounting practices was so substandard as to be unreliable and therefore inadmissible under rule 702 of the Utah Rules of Evidence. However, disputes over the merits of competing opinions in non-novel scientific, technical, or specialized fields are properly left to the trier of fact to resolve. Such disputes will stimulate our intervention only where the trier of fact has abused his discretion. In this case, Grand Canyon has given us no reason to disturb the decision of the trial court, and we therefore hold that the trial court did not abuse its discretion in receiving Mr. Rasmussen’s opinion on the accounting treatment of the Arizona tax refund.

B. Mr. Smith’s Claim that Grand Canyon Breached the Implied Covenant of Good Faith and Fair Dealing

¶26 Grand Canyon also takes issue with the trial court’s denial of its motion to summarily dismiss Mr. Smith’s claim that it breached the implied covenant of good faith and fair dealing by refusing to permit him to share in the Arizona tax refund. We review the decision of the trial court for correctness and affirm. See Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362.

¶ 27 Grand Canyon insists that its implied covenant of good faith and fair dealing was extinguished when obligations under the buy-sell agreement were fully performed. It finds support for this assertion in an opinion of our court of appeals which it reads to hold that the implied covenant does not survive the contract to which it adheres. Republic Group v. Won-Door Carp., 883 P.2d 285, 289-90 (Utah Ct.App.1994). We agree with the court of appeals’ observation that the rescission or termination of a contract extinguishes the implied covenant of good faith and fair dealing. This principle of law is easily applied where, as in most eases involving rescission, the fact of contract termination and the date of termination are clear. However, ascertaining whether or when a contract has terminated often, as here, requires substantial factual inquiry. This is particularly true when a party claims that the contract was terminated by performance rather than, for example, by rescission. The multifarious forms that contract performance may take will often make the question of contract termination one to be answered by the trier of fact. Grand Canyon had not completed making payments due Mr. Smith under its agreements with him on the date that Grand Canyon received the Arizona tax refund. We decline, therefore, to hold that as a matter of law Mr. Smith’s contractual relationship with Grand Canyon had terminated, and with it the implied covenant of good faith and fair dealing.

¶ 28 Thus, we reject Grand Canyon’s contention that Mr. Smith’s claim that the implied covenant of good faith and fair dealing attaches to the Arizona tax refund fails as a matter of law. We also reject Grand Canyon’s challenge to Mr. Rasmussen’s opinion testimony concerning the refund’s accounting treatment. Accordingly, we affirm the trial court’s denial of summary judgment on the Arizona tax refund.

IV. MR. SMITH’S CLAIM FOR PUNITIVE DAMAGES

¶ 29 We review the trial court’s summary dismissal of Mr. Smith’s claim for punitive damages based on Grand Canyon’s alleged breach of the implied covenant of good faith and fair dealing for correctness, and affirm. See Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362. The trial court properly stated that punitive damages are recoverable only for torts, not for breach of contract. See Cook Assocs., Inc. v. Warwick, 664 P.2d 1161, 1167 (Utah 1983). In this case, Mr. Smith failed to plead any tort claims until his brief before this court, in which he accuses his former colleagues of “intentionally, wilfully, if not recklessly [undertaking] to learn the operation of the business from Smith and then [terminating] his involvement as an employee and shareholder.” Mr. Smith also argues that he was “wrongfully deprived of the economic value of his interest in [Grand Canyon].” These vague assertions of misconduct, coupled with the absence of a tort claim in his complaint, do not rise to the level of a properly pleaded tort. Thus, because the issues before the trial court sound exclusively in contract, we affirm the trial court’s dismissal of the claim for punitive damages.

V. MR. SMITH’S CLAIM FOR ATTORNEY FEES

¶ 30 We also affirm the trial court’s summary dismissal of Mr. Smith’s claim for attorney fees. We review this issue for correctness. Woodbury Amsource, Inc. v. Salt Lake County, 2003 UT 28, ¶ 4, 73 P.3d 362. The trial court properly stated that orn-ease law does not encompass the type of relief that Mr. Smith requests. “Utah adheres to the well-established rule that attorney fees generally cannot be recovered unless provided for by statute or by contract.” Canyon Country Store v. Bracey, 781 P.2d 414, 419 (Utah 1989) (citing Turtle Mgmt., Inc. v. Haggis Mgmt., 646 P.2d 667, 671 (Utah 1982)). Mr. Smith’s request for attorney fees is not based on statute or contract, nor does it fall within any exceptions to the general attorney fee rule created by this court, and we decline to create an additional exception to accommodate the facts presented in the record before us. See, e.g., Heslop v. Bank of Utah, 839 P.2d 828 (Utah 1992) (creating an exception for employment termination cases). Therefore, we affirm the trial court’s dismissal of Smith’s claim for attorney fees.

VI. MR. SMITH’S MOTION TO AMEND HIS COMPLAINT

31 Smith challenges the trial court’s denial of his motion for leave to amend his complaint to add a claim for unjust enrichment. The granting or denial of leave to amend a pleading is within the broad discretion of the trial court, and we will not disturb such a ruling absent a showing of an abuse of that discretion. R & R Energies v. Mother Earth Indus., 936 P.2d 1068, 1080 (Utah 1997).

¶ 32 A party may request that a judge grant leave to amend pleadings according to the dictates of rule 15(a) of the Utah Rules of Civil Procedure, which states that “leave shall be freely given when justice so requires.” In Utah, rule 15 is interpreted liberally to allow parties the opportunity to fully adjudicate their claims on the merits. Timm v. Dewsnup, 851 P.2d 1178, 1182 (Utah 1993). However, the dimensions of liberality are generally defined by the trial judge, who is best positioned to evaluate the motion to amend in the context of the scope and duration of the lawsuit.

¶ 33 Moreover, a party may not amend a complaint to add a claim that is legally insufficient or futile. Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92-93 (Utah 1992); see also Wright v. Univ. of Utah, 876 P.2d 380, 387 (Utah Ct.App.1994). In this case, Mr. Smith seeks to amend his complaint for the third time to include an action of unjust enrichment. He argues that he should be entitled to pursue a claim for unjust enrichment because of Grand Canyon’s failure to share the Arizona tax refund with him.

¶ 34 However, this allegation does not meet the standard to support a claim for unjust enrichment, and it is therefore legally insufficient. A proper claim for unjust enrichment requires that the party show (1) a benefit conferred on one person by another, (2) an appreciation or knowledge by the conferee of the benefit, and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value. Am. Towers Owners Ass’n v. CCI Meek, Inc., 930 P.2d 1182, 1192 (Utah 1996). Thus, unjust enrichment is a claim between a con-feror and a conferee. Grand Canyon correctly points out that the benefit it received came from the state of Arizona, not Smith, and thus a claim of unjust enrichment is legally insufficient and futile. We therefore conclude that the trial court properly exercised its discretion in denying Mr. Smith’s motion to amend his complaint.

VII. MR. SMITH’S ALTER EGO CLAIMS

¶35 Finally, Grand Canyon appeals the trial court’s refusal to dismiss claims against the individual defendants, contending that the individuals were not parties to any contract with Smith and therefore have no individual liability. The trial court determined that Grand Canyon’s selection of “S” corporation status created an issue of fact sufficient to overcome a summary judgment on the issue of whether Grand Canyon’s corporate form should be disregarded and the individual defendants exposed to liability for its acts. We review this question of law for correctness. Estate Landscape & Snow Removal Specialists v. Mountain States Tel. & Tel. Co., 844 P.2d 322, 325 (Utah 1992).

¶ 36 The corporate form may be disregarded when there is “such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist ... and the observance of the corporate form would sanction a fraud, promote injustice, or an inequitable result would follow.” Noman v. Murray First Thrift & Loan Co., 596 P.2d 1028, 1030 (Utah 1979). This is commonly referred to as “the alter ego theory.” In denying defendants’ motion for summary judgment, the trial court noted that “the corporate defendant is a subchapter S, closely held, corporation and that virtually all of the refund monies have been distributed to the small group of shareholders who are the remaining defendants.”

¶ 37 While the trial court accurately observed that in an “S” corporation, payments like the tax refund are passed through to shareholders without being exposed to taxation on the corporate level, this fact does not carry with it a suggestion of impropriety or inequity. Grand Canyon’s election of the “S” corporate form was entirely lawful and, standing alone, is irrelevant to an alter ego inquiry. We therefore reverse the trial court and remand for dismissal of the individual defendants.

CONCLUSION

¶ 38 In conclusion, we reverse the decision of the trial court only with respect to its refusal to dismiss the individual defendants. On this issue, we remand for action consistent with this opinion. On all other issues, the decisions of the trial court are affirmed.

¶ 39 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING’S opinion.

¶40 Justice RUSSON did not participate herein; then District Judge RONALD E. NEHRING sat.

      . We have rejected as not properly raised the issue of whether disputed material issues of fact precluded the trial court from granting summary judgment on the stock valuation claims not related to the Arizona tax refund. However, Grand Canyon's cross-appeal properly places the matter before us in the setting of evaluating the trial court's ruling on the refund.

      . Both the claims we have categorized as "stock valuation claims” and those we have classified as the "Arizona tax refund claims” are tied to the buy-sell agreement. The unique factual circumstances surrounding the tax refund mandate an analysis independent of that applied to other valuation issues.


author: WILKINS, Justice:

text:
    2004 UT 1
    Brian HUNTER, Plaintiff and Appellant, v. SUNRISE TITLE COMPANY, Defendant and Appellee.
    No. 20010960.
    Supreme Court of Utah.
    Jan. 16, 2004.

      Daniel S. Sam, Vernal, for plaintiff.
    Clark B. Allred, Gayle F. McKeachnie, Vernal, for defendant.
   WILKINS, Justice:

¶ 1 Plaintiff Brian Hunter appeals the district court’s dismissal of his amended complaint against defendant Sunrise Title Company (“Sunrise Title”). In granting Sunrise Title’s motion to dismiss, the district court concluded that Hunter failed to comply with the timely service provisions of rule 4(b) of the Utah Rules of Civil Procedure. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 In July 1995, Sunrise Title, a Utah title company located in Roosevelt, served as the closing agent in a real estate transaction between Mary Rowsell and C. Morgan Glines. Rowsell listed real property in Du-chesne County for sale through RS West Real Estate (“RS West”-), a Utah real estate agency, and Shar Lynn Benson, a real estate agent employed by RS West. At the time Rowsell and Benson signed the listing agreement, Hunter and his family resided at the property in question.

¶3 Following the sale of the property, Hunter asserted an equitable claim to the land and filed suit against both Rowsell and Glines. In May 1998, after having previously received a money judgment against Rowsell for attorney fees and loss of income, Hunter obtained a court order vesting title to the property in him. After the entry of the order, Hunter filed another lawsuit relating to the Rowsell-Glines transaction on July 14, 1998, this time naming Benson, RS West, and Sunrise Title as co-defendants and alleging breach of fiduciary duty, fraudulent conspiracy, and violation of state law regulating real estate agents. Pursuant to rule 4(b) of the Utah Rules of Civil Procedure, Benson and RS West were then properly served with a summons and copy of the complaint within 120 days. However, Sunrise Title was not served until May 2001, despite being located in Roosevelt and having a registered agent to receive service of process.

¶ 4 After answering the complaint and participating in discovery, Benson and RS West moved for summary judgment, which resulted in the dismissal of all but one of Hunter’s claims. Thereafter, Hunter settled the lone remaining claim against Benson and RS West and agreed to dismiss his complaint against those two defendants only, with prejudice and upon the merits. The district court then entered a formal order of dismissal on June 22, 2000.

¶ 5 On May 17, 2001, nearly eleven months after the entry of the order of dismissal, Hunter filed an amended complaint naming Sunrise Title as the only defendant and adding slander of title and negligence to the previous allegations of breach of fiduciary duty and fraudulent conspiracy. After receiving the appropriate summons, Sunrise Title moved to dismiss on grounds that Hunter failed to comply with the timely service requirement of rule 4(b) of the Utah Rules of Civil Procedure. Specifically, Sunrise Title argued that (1) Hunter neglected to serve process on the company within 120 days of filing his original complaint; and (2) even though rule 4(b) allows service on co-defendants “at any time prior to trial” provided one co-defendant is properly served within the appropriate time frame, this provision was inapplicable because the action against Benson and RS West had already been dismissed with prejudice. Utah R. Civ. P. 4(b). The district court agreed and granted Sunrise Title’s motion to dismiss, from which Hunter now appeals.

STANDARD OF REVIEW

¶ 6 We review the district court’s grant of a motion to dismiss for correctness, accepting as true the factual allegations of the complaint and drawing all inferences in the plaintiffs favor. Stokes v. Van Wagoner, 1999 UT 94, ¶ 6, 987 P.2d 602.

ANALYSIS

¶ 7 Rule 4(b) of the Utah Rules of Civil Procedure requires that “the summons together with a copy of the complaint ... be served [upon the defendant] no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown.” Regarding multiple-defendant lawsuits, the rule further provides that “[i]n any action brought against two or more defendants on which service has been obtained upon one of them within the 120 days or such longer period as may be allowed by the court, the other or others may be served or appear at any time prior to trial.” Utah R. Civ. P. 4(b).

¶ 8 Citing this co-defendant provision, Hunter contends that Sunrise Title can be served with the amended complaint because (1) the original complaint was timely served on both Benson and RS West within 120 days of filing; and (2) no trial ever took place. According to Hunter, the phrase “prior to trial” should be strictly construed to allow service on co-defendants at any point before trial or the entry of final judgment. In short, under Hunter’s proposed interpretation of rule 4(b), a co-defendant is susceptible to service of process until an actual trial begins or a final disposition occurs, even if a substantial amount of time has lapsed and regardless of whether other defendants remain in the suit or, as in this case, have previously been dismissed with prejudice. We disagree.

¶ 9 In Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 815 P.2d 781 (1991), the Washington Supreme Court addressed a similar question in the context of a tolling statute. The issue in Sidis was whether timely service of process upon one defendant tolled the statute of limitations as to unserved co-defendants. Id. at 781. Although the Washington court interpreted the statute in question to permit tolling, it noted that “[w]hile it is true that [the statute], literally read, tolls the statute of limitation for an unspecified period, that period is not infinite.” Id. at 783. Indeed, court rules dictate that plaintiffs pursue their claims in an expeditious manner. Id. Of particular relevance to the instant case, the Washington Supreme Court further emphasized that “[a] plaintiff who fails to serve each defendant risks losing the right to proceed against unserved defendants if the served defendant is dismissed.” Id.; see, e.g., Fox v. Sunmaster Prods., Inc., 63 Wash. App. 561, 821 P.2d 502, 506-07 (1991); Fittro v. Alcombrack, 23 Wash.App. 178, 596 P.2d 665, 666 (1979).

¶ 10 We find the Washington court’s reasoning persuasive, and apply it’to the facts of this case. Here, Hunter ultimately dismissed, with prejudice and on the merits, all claims against Benson and RS West arising from his initial complaint. The district court then memorialized this dismissal in its June 22, 2000 order. Therefore, as of June 22, 2000, Hunter’s original three-defendant lawsuit became a single-defendant action, with Sunrise Title the sole remaining defendant. Consequently, the co-defendant provision of rule 4(b) allowing service “at any time prior to trial” ceased to apply once Benson and RS West were formally dismissed from the case.

¶ 11 In the absence of co-defendants who have been served per rule 4(b), the plain language of the rule mandates that “the summons together with a copy of the complaint shall be served no later than 120 days after the filing of the complaint unless the court allows a longer period of time for good cause shown.” Utah R. Civ. P. 4(b). Where all served co-defendants are formally dismissed, we hold that rule 4(b) requires service upon at least one of the remaining unserved defendants within 120 days of filing of the complaint, absent the district court’s grant of an extension for good cause.

¶ 12 In this case, Hunter formally dismissed all claims against Benson and RS West effective June 22, 2000, the date the district court entered its order.- Hunter then waited nearly eleven months before finally serving Sunrise Title with the amended complaint on May 17, 2001. Once Benson and RS West were dismissed, Hunter had no more than 120 days from the date his original complaint was filed to serve Sunrise Title or move the district court for an extension of time. Simply stated, pursuant to rule 4(b), if all served co-defendants are dismissed, a plaintiff in Hunter’s position must either (1) serve at least one unserved defendant within 120 days of the date the original complaint was filed; or (2) petition the district court for an extension prior to the dismissal of the served co-defendants, if the 120-day period has already expired. Because Hunter did neither, the district court properly dismissed his amended complaint as untimely.

13 Finally, we also note that Hunter’s strict reading of rule 4(b) to allow service on co-defendants “at any time prior to trial” directly conflicts with our well-established rule that “[t]he policy in the law is ... to simplify and expedite procedure and ... avoid a multiplicity of lawsuits.” Bartholomew v. Bartholomew, 548 P.2d 238, 241 (Utah 1976); see also Utah R. Civ. P. 1(a) (stating that the Utah Rules of Civil Procedure “shall be liberally construed to secure the just, speedy, and inexpensive determination of every action”).

CONCLUSION

¶ 14 We affirm the district court’s dismissal of Hunter’s amended complaint against Sunrise Title. We hold that the co-defendant provision of rule 4(b) of the Utah Rules of Civil Procedure allowing service “at any time prior to trial” does not apply where, as here, all other co-defendants have been formally dismissed. If all served co-defendants are formally dismissed from an action, rule 4(b) mandates service upon at least one remaining unserved defendant within 120 days of the date of filing of the complaint, absent the district court’s timely grant of an extension. A plaintiffs failure to satisfy the 120-day requirement or obtain an extension results in dismissal of the complaint as untimely, as occurred here. Affirmed.

¶ 15 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.


text:
    2004 UT 2
    STATE of Utah, Plaintiff and Appellee, v. Adrian Whitfield GORDON, Defendant and Appellant.
    No. 20020332.
    Supreme Court of Utah.
    Jan. 16, 2004.
    Mark L. Shurtleff, Att’y Gen., J. Frederic Voros, Jr., Jeanne B. Inouye, Asst. Att’ys
    Gen., Byron F. Burmester, J. Kevin Murphy, Salt Lake City, for plaintiff.
    Linda M. Jones, Michael A. Peterson, Salt Lake City, for defendant.
   WILKINS, Justice:

¶ 1 Defendant Adrian Gordon appeals his conviction for murder. Gordon argues the evidence presented at his bench trial was insufficient to support the verdict. We affirm.

BACKGROUND

¶ 2 Gordon was convicted of murdering Lee Lundskog. Lundskog died in the early morning of September 29, 2001 outside a 7-Eleven store in Salt Lake County as a result of numerous blows to the head. Gustavo Diaz-Hernandez, a witness to the incident, saw Lundskog’s attacker repeatedly kicking Lundskog. The evidence of homicide was substantial enough that the only issue at trial was the identity of the attacker.

¶ 3 According to the unchallenged facts, Gordon was at the 7-Eleven near the time of the murder wearing a light-colored shirt. Robert Mellen, a regular customer at the 7-Eleven, saw Gordon wave at Lundskog as if to beckon him. Diaz-Hernandez, whose eyesight was quite good, witnessed the attack on Lundskog while waiting for a ride to work and immediately reported it to the person driving him to work. Police later seized a light-colored T-shirt from a place where Gordon was living.

¶ 4 In the announcement of its verdict, the trial court discussed numerous other facts. Gordon challenges many of the trial court’s statements regarding the evidence by placing the trial court’s statements into three categories: those unsupported by the evidence, improper and irrelevant inferences, and statements that are inconsistent with the evidence. Gordon asserts that the trial court’s unsupported, improper, and inconsistent statements, all of which he refers to ge-nerieally as “findings,” must be stricken, leaving a conviction unsupported by sufficient evidence.

ANALYSIS

I. STANDARD OF REVIEW

[1] ¶ 5 “When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is ‘against the clear weight of the evidence, or if [we] otherwise reach[ ] a definite and firm conviction that a mistake has been made.’ ” State v. Goodman, 763 P.2d 786, 786-87 (Utah 1988) (quoting State v. Walker, 743 P.2d 191, 193 (Utah 1987)).

II. SUFFICIENCY OF THE EVIDENCE

¶ 6 As noted above, in evaluating Gordon’s insufficiency of the evidence claim we must determine whether the verdict is against the clear weight of the evidence presented at trial. Although we do not discuss each and every fact presented at trial, the trial record provides ample evidence to support the facts discussed below.

¶ 7 Robert Mellen, a frequent customer of the 7-Eleven store where Lundskog was killed, testified at trial concerning his observations at the 7-Eleven on the morning of Lundskog’s murder. Mellen arrived at the 7-Eleven shortly after 5:20 a.m. Mellen identified Gordon as being at the store that morning. Upon leaving the 7-Eleven, Mel-len returned to his truck in front of the store. According to a surveillance video from inside the 7-Eleven, Gordon exited the store on foot at 5:25:56 a.m. and headed north. While Mellen was backing his truck away from the store about ten seconds later he saw Gordon, whom he identified in a photo line-up, “waving [Lundskog] ... to come over and talk to him.” At 5:27:21, barely a minute after Gordon’s gesture to Lundskog, the store’s surveillance camera shows Lundskog walking north in front of the 7-Eleven — the direction of Gordon’s travel. This is the last time Lundskog appears on the surveillance tape. Lundskog’s body was later found just behind the 7-Eleven, near the northwest corner of the building.

¶ 8 Another witness at trial, Gustavo Diaz-Hernandez, witnessed at least a portion of the attack on Lundskog. He testified that he was walking by the 7-Eleven when he heard noises that he eventually determined came from one person kicking another. Diaz-Hernandez observed the attack from various vantage points and distances. He watched the attacker repeatedly kick Lundskog before ceasing the attack and entering the 7-Eleven store from the front. The front of the store was well-lit. According to Diaz-Hernandez, the attacker was a muscular African-American man with short hair wearing a loose T-shirt, baggy shorts, and white tennis shoes. Diaz-Hernandez’s description of the attacker’s clothing matched Mellen’s description of Gordon.

¶ 9 Diaz-Hernandez continued observing the attacker, who left the 7-Eleven store when another ear pulled up. The attacker went to that car, put some bags inside, returned to Lundskog and kicked him again, and then walked away from the area alongside the ear. Diaz-Hernandez’s observations of the attacker match quite well with Gordon’s actions as recorded on videotape by the store’s surveillance camera.

¶ 10 Gordon first appeared on the store’s video at 5:20:50 a.m. when he entered the store from the north. While in the store, Gordon used the telephone before briefly departing to the north, passing Lundskog in the doorway. Gordon then reentered the store at 5:25:45 a.m. before again departing and heading north barely fifteen seconds later. According to Mellen’s testimony, he saw Gordon beckon toward Lundskog at 5:26:08-:09 a.m. Lundskog is seen crossing in front of the store in Gordon’s direction just over one minute later. Gordon reentered the 7-Eleven from the north at 5:31:17 a.m. and returned to the telephone. One car pulled into the parking lot and its occupant entered the store. Then, another car pulled into the parking lot at 5:32:01 a.m., whereupon Gordon left the store heading north. Neither Gordon nor Lundskog is seen again on the store’s surveillance tape.

¶ 11 Given the accounts presented at trial by both Diaz-Hernandez and Mellen, and the videotape evidence from the store, the trial court’s verdict is not against the clear weight of the evidence; rather, it is amply supported by that evidence. Gordon encountered Lundskog at the store that morning. This fact is clearly evidenced both by them passing one another in the doorway and Mellen’s observation of Gordon’s beckoning motion toward Lundskog. Further, the videotape evidence showing Lundskog heading toward the north shortly after Gordon’s actions reasonably supports the conclusion that Lundskog responded to Gordon’s summoning. Nearly four full minutes after Lundskog disappeared from the view of the surveillance camera, Gordon reentered the store from the north before again leaving as a car pulled into the parking lot, as described by Diazr-Hernandez. Any discrepancies in Diaz-Hernandez’s testimony are minor compared to the accuracy of his observations.

¶ 12 Gordon argues that Diaz-Hernandez’s identification of Gordon as the attacker is suspect because of the poor lighting conditions in the area where Lundskog was attacked and Diaz-Hernandez’s inconsistent preliminary hearing testimony regarding the identity of the attacker. Although Diaz-Hernandez failed to positively identify Gordon as the attacker in a photo line-up and at the preliminary hearing, he did positively identify Gordon at trial. While his positive identification of Gordon at trial was inconsistent with previous failures to positively identify the attacker, it is evident that Diaz-Hernandez had ample opportunity to observe the attacker given the lighting at the front of the store. Thus, apart from any positive identification, Diaz-Hernandez’s descriptions of the attacker’s clothing and physical appearance were entitled to considerable weight at trial. The trial court’s conclusion that Gordon was the attacker is not against the clear weight of the evidence.

¶ 13 Likewise, Gordon argues that the timeline of the attack as Diaz-Hernandez witnessed it does not match Gordon’s actions as captured on the surveillance video. Gordon argues that he left the area upon leaving the store at 5:32 a.m. and that Diaz-Hernandez was not in the area to witness the attack until 5:35 or 5:36 a.m. While Diaz-Hernandez did testify that he lived about five minutes from the 7-Eleven on foot and that he left his home at 5:30 that morning, those times were clearly estimates. Given that Diaz-Hernandez’s times were approximations and that no foundational evidence was presented to establish the accuracy of the surveillance camera clock, the few minutes discrepancy between Diaz-Hernandez’s testimony and the surveillance video are insufficient to cast doubt on the verdict.

¶ 14 Ample evidence supports Gordon’s conviction. He was seen at the scene of the murder very close to the time it occurred and he interacted with Lundskog. His physical description and the clothing he wore that day match the description of the attacker given by Diaz-Hernandez, the only witness to the attack. Gordon’s actions caught on the 7-Eleven surveillance tape also closely match Diaz-Hernandez’s account of the attacker’s actions. Given the ample evidence supporting Gordon’s conviction, we must affirm the verdict of the trial court.

CONCLUSION

¶ 15 The only issue at trial was the identity of the attacker and the only witness to the attack described an attacker who matched Gordon’s physical description and was wearing clothing similar to that worn by Gordon that morning. Another witness saw Gordon and Lundskog interact shortly before the murder. We affirm the trial court’s verdict because it was well-supported by the evidence offered at trial.

¶ 16 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.

      . The facts in this section represent a portion of those unchallenged on appeal.


text:
    2004 UT 8
    STATE of Utah, DEPARTMENT OF HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Respondent, v. Honorable Frederic ODDONE, Petitioner.
    No. 20030038.
    Supreme Court of Utah.
    Jan. 23, 2004.
    Mark L. Shurtleff, Att’y Gen., Annina M. Mitchell, Asst. Att’y Gen., Salt Lake City, for Respondent.
    Brent M. Johnson, Salt Lake City, for Petitioner.
   WILKINS, Justice:

¶ 1 In the matter of In re Judge Joseph W. Anderson, 2004 UT 7, 82 P.3d 1134, also decided today, we addressed the difficulty faced by Judge Anderson with respect to hearing cases in which attorneys from the Office of the Guardian ad Litem and the office of the Attorney General were involved. A more thorough discussion of the facts and circumstances leading to Judge Anderson’s disqualification from hearing those eases is contained there.

¶ 2 In this ease, we accepted Judge Frederic Oddone’s petition, seeking review of the court of appeals’ decision granting the State’s petition to disqualify Judge Anderson from cases in which any attorney from the office of the Attorney General represented the Division of Child and Family Services. Judge Oddone, as presiding judge of the Third District Juvenile Court, had entered an order denying the State’s motion to disqualify Judge Anderson, citing both legal and practical reasons for the denial. The court of appeals, in response, reversed Judge Od-done’s order, and directed that Judge Anderson not only be disqualified from then-existing matters in which the Attorney General represented the Division of Child and Family Services, but also extended the disqualification to any such matters “in the future.”

¶ 3 Because we have today removed Judge Anderson from the bench, the order of disqualification is moot. However, for the guidance of the bench in the future, a general order of disqualification may not be made unconditionally permanent in perpetuity. Conditions under which the disqualification will be automatically remitted, or under which an order of disqualification will automatically expire, must be included. Also, for the guidance of presiding judges faced with similarly difficult circumstances in the future, the court of appeals is correct that disqualification of Judge Anderson under these circumstances was mandatory. The imposition on the work of the court, and on the function of the administrative apparatus of the district, while deplorable, does not allow for increasing the burden from showing an appearance of bias to one of showing actual bias, as suggested by Judge Oddone in his order. The moving party must only show a reasonable appearance of bias to be entitled to recusal of the judge at issue. Utah Code of Judicial Conduct Canon 3E.

¶ 4 The petition is dismissed as moot.

¶ 5 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.