author: Per Curiam Opinion

text:
    Jedediah Wells HIGLEY, Appellee, v. Bryan Dean BUHLER, Appellant.
    No. 20180925-CA
    Court of Appeals of Utah.
    Filed June 6, 2019
    Glen R. Thomas, Attorney for Appellant
    Jedediah Wells Higley, Appellee Pro Se
    Before Judges Gregory K. Orme, Kate Appleby, and Diana Hagen.
   Per Curiam Opinion

PER CURIAM:

¶1 Bryan Dean Buhler appeals a permanent civil stalking injunction entered against him in favor of Jedediah Wells Higley. We affirm.

¶2 "On appeal, when a trial court has made findings of fact to support a civil stalking injunction, we will recite the facts in a light most favorable to the trial court's findings." Carson v. Barnes , 2016 UT App 214, ¶ 2 n.1, 385 P.3d 744 (quotation simplified).

¶3 On September 28, 2018, Higley requested an ex parte civil stalking injunction against Buhler. Higley listed three stalking events in which Buhler allegedly drove by Higley's house a number of times on August 16, 2018, September 6, 2018, and September 22, 2018. The request contained allegations regarding Buhler's earlier alleged assault of Higley, listing a pending assault case involving Higley and Buhler with a court case number. Higley also attached two police reports. One described a call to police about alleged harassment on August 16, 2018. The other police report described the investigation of the alleged assault and demonstrated that the investigation culminated in Buhler's arrest for assaulting Higley.

¶4 Buhler requested a hearing after the entry of the temporary civil stalking injunction. See Utah Code Ann. § 77-3a-101(6) (LexisNexis 2017). At the hearing, Buhler conceded that there was a fight on July 7, 2018, between Higley and Buhler and that Higley's injuries required medical attention. But Buhler challenged the credibility of Higley's account of the events that led to the fight. Buhler also did not directly dispute that he drove by Higley's residence on one or more of the dates alleged in the request for a civil stalking injunction and flipped him off.

¶5 Higley testified and also presented the testimony of his mother, who lived next door to him and had seen Buhler drive by her as she was walking and flip her off. Higley's adult sister testified that she also encountered Buhler, that she heard him refer to her as a "bitch," and that he flipped her off as he drove away. Higley stated that his family felt threatened, unsafe, and uneasy. They were concerned that they did not know what Buhler was "capable of anymore."

¶6 Buhler argued that his conduct could not meet the definition of stalking, claiming that flipping someone off is "protected speech" that cannot constitute an act of stalking unless it is accompanied "with fighting words or some sort of threat." The court inquired about considering the gesture in the context of the fight between the two men. Buhler argued that the events were "so remote in time and place ... and not even related to the same people. The flipping off would have to put them under some sort of emotional distress, which they didn't offer any testimony to that effect." Buhler also argued that there was no proof of significant mental or psychological suffering and that there were credibility issues with Higley's account.

¶7 The court refocused the parties on the statutory requirements for a civil stalking injunction. In response to the court, Buhler conceded that the fight occurred, that Higley was harmed, and that he had to go to the hospital for treatment. The court then asked Higley about the allegations in the request for a civil stalking injunction "that there were multiple events in which Mr. Buhler drove by your place of residence. ... How many times did he go by your place where you see him going by and he gave you the finger?" Higley responded that he saw Buhler do this "three or four times" after the July 7 fight, "like a day or two after he got out of jail from being released from the initial arrest for this, ... a day or two after that." These three or four additional events after the fight caused him to be in fear of harm. The court inquired whether Buhler wished to reexamine Higley, and his counsel declined.

¶8 The district court found that there was a fight between Higley and Buhler that resulted in some level of harm to Higley. The court found that there was an additional witness-Mr. Higley's mother-who testified that she witnessed "an event of her own being flipped off." The district court found that Buhler had options other than driving past Higley's residence to reach the landfill when he needed to go there for purposes of his work. Buhler also could have driven past the Higley residence without taking the additional action of flipping off Higley (or his mother). The district court found that, regardless of any claim of "free speech," when considered in the context of the July 7, 2018, fight-"where there apparently was significant harm"-the court was required under the stalking statute to address the later instances as acts "where ... the respondent directly observed or communicated to this petitioner," and determine whether those actions "would cause a reasonable person to suffer emotional distress or be afraid for that person's own safety." The court considered the ensuring actions in "the context of the fight and the resulting harm to Mr. Higley." Accordingly, the district court concluded that it was "required ... at this point to confirm the status associated with that civil stalking injunction and have it remain in place."

¶9 After the court ruled, Buhler's counsel inquired about potential issues regarding the school where both men had children attending. The court directed the parties to stay away from each other if they were both at the school. Buhler did not object at that time to the inclusion of other family members in the injunction's coverage.

¶10 Buhler argues that the district court erred in its interpretation and application of the statutory requirements for a civil stalking injunction. We review the "interpretation and application of a statute" for correctness, "affording no deference to the district court's legal conclusion."

Baird v. Baird , 2014 UT 08, ¶ 16, 322 P.3d 728 (quotation simplified).

¶11 To obtain a civil stalking injunction, a petitioner must establish the elements necessary to meet the definition of stalking in the criminal code. See Utah Code Ann. § 77-3a-101(1).

(2) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:
(a) to fear for the person's own safety or the safety of a third person; or
(b) to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2018). A "reasonable person" is defined as "a reasonable person in the victim's circumstances." Id. § 76-5-106.5(1)(e). A course of conduct requires "two or more acts directed toward a specific person, including:"

(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person's property:
(A) directly, indirectly, or through any third party; and
(B) by any action, method, device, or means.

Id. § 76-5-106.5(1)(b)(i).

¶12 The inclusion of the phrase "in the victim's circumstances" in the statutory definition of "reasonable person," "provides for an individualized objective standard." Baird, 2014 UT 08, ¶ 26, 322 P.3d 728 (quotation simplified). "Under this standard, a court must consider the entire context surrounding [respondent's] conduct." Id. Thus, a court may consider whether a respondent "had knowledge of a particular vulnerability of the victim and then acted with full knowledge of the victim's vulnerability." Id. ¶ 27 (quotation simplified). "Thus even actions that, viewed in isolation, might be insufficient to cause a reasonable person in the same position to fear for his safety can, taken together, cause fear." Carson v. Barnes , 2016 UT App 214, ¶ 20, 385 P.3d 744 (quotation simplified); see also Meyer v. Aposhian , 2016 UT App 47, ¶ 13, 369 P.3d 1284 (stating a court does not view the incidents in isolation when determining whether a reasonable person in the petitioner's position would fear for his safety).

¶13 Buhler claims that the evidence was insufficient to establish a course of conduct that constituted stalking. He first claims that flipping someone off is constitutionally protected speech. This specific argument was not presented to the district court for a ruling. In order to preserve an issue for appeal, it "must be specifically raised in a timely manner and must be supported by evidence and relevant legal authority." See Meyer, 2016 UT App 47, ¶ 26, 369 P.3d 1284 (quotation simplified). While Buhler argued in the district court that flipping a person off was protected speech unless combined with other "fighting words," the specific constitutional argument contained in his appellate brief was not presented to the district court and is not preserved for appeal. We do not consider it further.

¶14 Buhler also argues that the court improperly considered irrelevant evidence and that the evidence was otherwise insufficient to establish a course of conduct under the civil stalking injunction statute. In this case, the district court was required to consider the individual circumstances of the petitioner-Higley-and determined that Buhler's actions constituted a course of conduct. See Utah Code Ann. § 76-5-106.5(1)(e) (defining a "reasonable person" as "a reasonable person in the victim's circumstances"). As such, the court properly considered whether repeatedly driving past Higley's residence within days of Buhler's release from jail after his arrest for allegedly assaulting Higley would place a reasonable person in Higley's circumstances in fear for his and his family's safety. See Carson , 2016 UT App 214, ¶ 21, 385 P.3d 744 (stating that the district court did not err in determining that a threshold incident involving a threat with a gun "impacted all future actions" taken by the respondent directed toward the petitioner (quotation simplified)). In addition, the court properly considered the acts directed toward Higley's mother as corroborating evidence of the course of conduct, as well as Buhler's contacts with other members of Higley's family.

¶15 The district court did not err in determining that Higley demonstrated by a preponderance of the evidence that the civil stalking injunction should remain in place. Considered in context, Buhler's "pattern of behavior ha[d] a cumulative effect that would cause a reasonable person in [the petitioner's] position to fear for his safety or the safety of his family." Id. ¶ 25 (quotation simplified). Buhler's conduct-flipping off Higley and his family members-was conduct that "communicates to or about a person," see Utah Code Ann. § 76-5-106.5(1)(b)(i), and it was properly considered by the district court in the context of the earlier fight between the two men and other evidence presented to the district court. The court did not err in concluding that the evidence taken as a whole supported continuation of the civil stalking injunction.

¶16 Accordingly, we affirm the decision to enter a permanent civil stalking injunction.

      This argument is only pertinent if counsel was referring to the actions of flipping off Higley's mother and sister.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    Ahmed D. HUSSEIN, Appellant, v. UBS BANK USA, Appellee.
    No. 20170709-CA
    Court of Appeals of Utah.
    Filed June 6, 2019
    Matthew R. Lewis, Stephen E. Morrissey, Kemper P. Diehl, and Bryan J.E. Caforio, Attorneys for Appellant
    Stephen P. Horvat, Salt Lake City, David L. Goldberg, Zachary Denver, Christian T. Kemnitz, and David Luger, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   ORME, Judge:

¶1 Ahmed D. Hussein appeals the district court's grant of summary judgment in favor of UBS Bank USA. We affirm and remand for the determination of attorney fees reasonably incurred by UBS Bank on appeal.

BACKGROUND

¶2 Hussein is an investor who worked as a broker for major brokerage firms in the United States for 15 years before moving to Egypt in 1996 to pursue his own investment opportunities. Until July 2012, he was a director and the second-largest shareholder of Quality Systems, Inc. (QSI), owning 15.7% of the company-an interest "worth hundreds of millions of dollars."

¶3 In 2009, Hussein developed a relationship with a financial advisor (Financial Advisor) from UBS Financial Services, Inc. (UBS-FS), a brokerage firm and UBS subsidiary. To maintain a relationship with Financial Advisor and receive financial and investment services from UBS-FS, Hussein signed a Client Relationship Agreement (CRA), which governed his relationship with UBS-FS in connection with anticipated margin loans between Hussein and UBS Bank.

The Loan Agreements

¶4 In 2009 and 2010, UBS Bank extended two margin loans to Hussein totaling $ 35.5 million. Hussein secured the loans with 1.3 million shares of QSI stock, then valued at $ 77 million, and $ 5 million in diversified assets, but he also pledged his other UBS-FS accounts as collateral. Without the assistance of legal counsel, Hussein negotiated the terms of the loans and reviewed the loan documentation (the Loan Agreements), which granted UBS Bank the rights to call in the loans at any time and, upon the occurrence of certain events, to liquidate Hussein's collateral.

¶5 In particular, UBS Bank could "demand full or partial payment of the credit line obligations, at its sole option and discretion without cause, at any time." And if UBS Bank "otherwise deems itself or its security interest in the Collateral insecure, ... then the Credit Line Obligations will become immediately due and payable (without demand) and the Bank may, in its sole and absolute discretion, liquidate, withdraw or sell all or any part of the Collateral." If the collateral "decline[s] speedily in value" or "customarily is sold on a recognized exchange or market," then UBS Bank had the right to sell the collateral and to do so without "prior notice" to Hussein.

¶6 The Loan Agreements also disclosed that UBS Bank and its affiliates were creditors whose "interests may be inconsistent with, and potentially adverse to, [Hussein's] interests." Furthermore, UBS-FS would "comply with entitlement orders originated by [UBS] Bank" without consent from Hussein, and if UBS Bank asserted control over the collateral, UBS-FS would have to comply with UBS Bank's entitlement orders even if in conflict with Hussein's instructions.

¶7 Separately, UBS Bank and UBS-FS had an agreement (the Servicing Agreement) whereby UBS Bank would offer margin loans to UBS-FS's clients "to be collateralized by [UBS-FS] securities accounts and the securities, financial assets and other investment property ... in which a security interest has been granted to the Bank by the Borrower." UBS Bank would then have "ultimate control over all entitlement orders and other instructions ... made with respect to the Accounts," and UBS-FS would have to "comply with all instructions given by [UBS] Bank without further consent by any Borrower or Pledgor."

¶8 After issuing the loans, UBS Bank sent a letter to Hussein, stating that Financial Advisor could answer any questions about his credit line. And until 2012, Hussein's only interactions regarding the loans were with UBS-FS employees-not UBS Bank itself.

¶9 Meanwhile, Hussein also opened two Portfolio Management Program accounts (the PMP Accounts) with UBS-FS that held $ 8.7 million in assets. Financial Advisor also suggested a Prepaid Variable Forward (PVF), a financial product aimed at helping Hussein obtain liquidity from his substantial stock holdings in QSI and as an eventual replacement for the loans. Discussions on the PVF proposal continued between Hussein and UBS-FS employees until July 25, 2012, but a PVF was never finalized.

The Liquidation

¶10 By July 2012, QSI's stock price had substantially declined, eroding the value of Hussein's collateral for the loans. On Saturday, July 21, 2012, Financial Advisor informed Hussein that "[u]nfortunately, with the stock closing at $ 23.41 we are looking at a [margin] call on Monday" and that Hussein needed to deliver $ 600,000 in cash or additional collateral in order to prevent such action. He also informed Hussein that selling from the PMP Accounts "would not give us much coverage" and that UBS Bank was "insisting we first sell [the QSI] shares (about 25,000 shares), or bring in cash or additional Collateral that is not [QSI shares]."

¶11 Hussein told Financial Advisor that he did not want UBS-FS to sell the QSI shares because of an ongoing proxy contest and that he needed time to acquire cash to cover the margin call. He directed Financial Advisor to sell from the PMP Accounts before selling the QSI shares.

¶12 For a period of five days, UBS Bank and UBS-FS did not touch the QSI shares, yet Hussein did not provide any cash or additional collateral to cover the equity shortfall in the account. On July 26, 2012, QSI stock continued to decline, reducing the value of the collateral by $ 23 million. UBS Bank started liquidating Hussein's QSI shares. After five days, UBS Bank had sold approximately 2,276,756 shares.

¶13 Hussein lost the proxy fight and a substantial percentage of his QSI shares. He eventually filed suit against UBS Bank in an effort to recover his losses.

The District Court's Decision

¶14 Hussein asserted six causes of action against UBS Bank in the course of alleging that UBS Bank fraudulently induced him to enter into the loans, breached its contractual duties when it liquidated his QSI shares, and violated fiduciary duties it owed to him.

¶15 Following discovery, and relying in large part on the governing documents, UBS Bank moved for summary judgment, arguing that it "acted within the scope of its contractual rights when it liquidated certain collateral that secured $ 35.5 million in loans that Hussein had received from UBS Bank, and did not breach any financial duties in that regard." Hussein responded by arguing that UBS-FS gave him "bad investment advice" as UBS Bank's agent and that UBS Bank wrongfully liquidated his QSI shares.

¶16 The district court granted UBS Bank's motion, concluding that there were no genuine issues of material fact because UBS-FS did not render financial advice to Hussein as UBS Bank's agent. It also concluded that UBS Bank "acted pursuant to its clear and indisputable rights under the Loan Agreements" "to 'liquidate any part of the Collateral' without notice to Hussein." Because the Loan Agreements contained an expansive indemnification provision, the district court awarded UBS Bank its costs and attorney fees.

¶17 Hussein appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Hussein raises two issues on appeal. First, he contends that the district court improperly granted UBS Bank's motion for summary judgment because there were genuine disputes of material fact concerning each of his claims against UBS Bank. Summary judgment is proper when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). We review a district court's decision to grant or deny summary judgment for correctness, "view[ing] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Orvis v. Johnson , 2008 UT 2, ¶ 6, 177 P.3d 600 (quotation simplified).

¶19 Hussein also contends that the district court erred in awarding UBS Bank attorney fees. "Whether attorney fees are recoverable in an action is a question of law, which we review for correctness." Valcarce v. Fitzgerald , 961 P.2d 305, 315 (Utah 1998).

ANALYSIS

I. Summary Judgment

¶20 Hussein challenges the district court's grant of UBS Bank's motion for summary judgment on his claims for fraud, constructive fraud, breach of fiduciary duty, breach of contract, tortious interference with contract, and aiding and abetting a breach of fiduciary duty. Essentially, Hussein asserts two theories of liability on the part of UBS Bank. He first contends that UBS Bank induced him into taking out the loans by failing to disclose material facts and to provide investment advice that would have protected him from a margin call (referred to in the briefing as the Advisory Claims). Second, Hussein contends that UBS Bank wrongfully liquidated his QSI shares, breaching the Loan Agreements and the CRA (referred to in the briefing as the Liquidation Claims).

A. The Advisory Claims

¶21 Hussein argues that UBS Bank failed to disclose material facts to him. He also argues that UBS Bank owed him fiduciary duties through its agent, UBS-FS. These assertions are the grounds for his breach of fiduciary duty, fraud, and constructive fraud claims.

¶22 On these claims, the district court concluded that UBS Bank disclosed the potentially adverse relationship UBS Bank and UBS-FS could have with Hussein. The court also concluded that there was no existence of a confidential relationship between UBS Bank and Hussein, determining that the Loan Agreements "established an arms-length borrower/lender relationship" and Hussein "cannot identify any fact which, if proven at trial, would permit a finding that UBS-FS rendered financial advice to Hussein as UBS Bank's agent."

1. Fraud

¶23 Hussein asserts that, during the loan process, UBS Bank had a duty to disclose that UBS-FS employees would put UBS Bank's interests before his and that his loans could be canceled without notice and demand. He maintains that certain terms of the Servicing Agreement between UBS Bank and UBS-FS should have been disclosed, in particular that UBS-FS "agreed to follow UBS Bank's instructions to liquidate Hussein's collateral in all circumstances."

¶24 "An action for fraud lies where there are false representations by defendant and reliance thereon by plaintiff to his damage," Semenov v. Hill , 1999 UT 58, ¶ 9, 982 P.2d 578 (quotation simplified), including concealments and omissions, see DeBry v. Valley Mortgage Co. , 835 P.2d 1000, 1007 (Utah Ct. App. 1992). Whether a duty to disclose certain material facts " 'exists is determinable by reference to all the circumstances of the case.' " Id. (quoting Elder v. Clawson , 14 Utah 2d 379, 384 P.2d 802, 804 (1963) ). "If those circumstances include a relation of trust or confidence, or inequality of condition, a duty may exist." Id. But such a duty " 'will not be found where the parties deal at arm's length, and where the underlying facts are reasonably within the knowledge of both parties. Under such circumstances, the plaintiff is obliged to take reasonable steps to inform himself, and to protect his own interests.' " Id. (quoting Sugarhouse Fin. Co. v. Anderson , 610 P.2d 1369, 1373 (Utah 1980) ). "The false representations or omissions must be knowing or reckless to constitute fraud." Id.

¶25 Hussein, an experienced investor who previously worked as a broker and who has a history of dealing with margin loans, testified that he personally reviewed and negotiated the Loan Agreements, which provided, with our emphasis, that "UBS Bank USA and its affiliates will act as creditors and, accordingly, their interests may be inconsistent with, and potentially adverse to, [Hussein's] interests." UBS Bank was given the right to liquidate "without demand," "in its sole and absolute discretion," "any part of the Collateral" when UBS Bank "deems itself or its security interest in the Collateral insecure." And it could sell "[a]ny Collateral that may decline speedily in value or that customarily is sold on a recognized exchange or market ... without providing any Loan Party with prior notice of the sale."

¶26 Referring to UBS-FS as a securities intermediary, the Loan Agreements disclosed that "pursuant to a control agreement between the Bank and the Securities Intermediary":

• The Securities Intermediary will comply with entitlement orders originated by [UBS] Bank regarding any Collateral Account without further consent from the Borrower or any Pledgor.
• [T]he Securities Intermediary may comply with entitlement orders originated by the Borrower ... on the applicable Collateral Account or any Pledgor but only until the time that [UBS] Bank notifies the Security Intermediary, that [UBS] Bank is asserting exclusive control over the Collateral Account. After the Securities Intermediary has received a notice of exclusive control and has had reasonable opportunity to comply, it will no longer comply with entitlement orders originated by the Borrower or any Pledgor concerning the Collateral Account.

These provisions granted UBS Bank the same control over a client's accounts as the Servicing Agreement, which required UBS-FS employees to "comply with all instructions given by the Bank without further consent by any Borrower or Pledgor, and that the Bank's instructions shall prevail if any conflict exists between any Bank instruction and a Borrower or Pledgor instruction."

¶27 In reviewing the Loan Agreements, Hussein would have been aware that a separate agreement existed between UBS Bank and UBS-FS and that, under the terms of that agreement, if UBS Bank took control of his accounts, UBS-FS's interests would become adverse to his own and UBS-FS would comply with UBS Bank's orders over his own. Moreover, the material terms of the loans indicated that UBS Bank could call for repayment of Hussein's loans at any time and could liquidate his QSI shares, without notice or demand, if the value of the stock declined.

¶28 Hussein fails to demonstrate the existence of facts establishing that UBS Bank made false representations to him or that it failed to disclose material facts to him during the loan process. The district court therefore properly granted summary judgment on his fraud claims.

2. Breach of Fiduciary Duty

¶29 Hussein contends that UBS Bank owed him fiduciary duties and breached those duties. "Ordinarily, no fiduciary relationship exists between a bank and its customer." State Bank of S. Utah v. Troy Hygro Sys., Inc ., 894 P.2d 1270, 1275 (Utah Ct. App. 1995). See also First Sec. Bank of Utah NA v. Banberry Dev. Corp. , 786 P.2d 1326, 1332 (Utah 1990) (stating that "the relation of mortgagor and mortgagee is not of a fiduciary character") (quotation simplified). Instead, we look to the facts and circumstances surrounding the relationship of the parties and the transaction and conclude that a fiduciary or confidential relationship exists only "when one party, having gained the trust and confidence of another, exercises extraordinary influence over the other party." Von Hake v. Thomas , 705 P.2d 766, 769 (Utah 1985). But "mere confidence in one person by another is not sufficient alone to constitute such a relationship." Id. (quotation simplified).

¶30 Hussein has not called our attention to evidence refuting UBS Bank's evidence that there was no fiduciary relationship between them. Hussein's interactions with UBS Bank were at arm's length in 2009 during discussions surrounding the Loan Agreements. Although no fiduciary relationship existed between UBS Bank and Hussein, Hussein asserts that, because such a relationship did exist between him and UBS-FS, fiduciary duties were owed to him by UBS-FS and its employees. And he contends that UBS-FS employees were agents of UBS Bank and that UBS Bank is therefore liable for their actions. "Under agency law, an agent cannot make its principal responsible for the agent's actions unless the agent is acting pursuant to either actual or apparent authority." Zions First Nat'l Bank v. Clark Clinic Corp ., 762 P.2d 1090, 1094 (Utah 1988).

a. Actual Authority

¶31 Hussein contends that the Loan Agreements gave UBS-FS actual authority to act as UBS Bank's agent because UBS-FS "handled all communications with Hussein," including those where he sought financial advice.

¶32 Actual authority may either be express or implied. "Express authority exists whenever the principal directly states that its agent has the authority to perform a particular act on the principal's behalf," while implied authority "embraces authority to do those acts which are incidental to, or are necessary, usual, and proper to accomplish or perform, the main authority expressly delegated to the agent." Id. "This authority may be implied from the words and conduct of the parties and the facts and circumstances attending the transaction in question." Id. at 1095.

¶33 But Hussein fails to produce any evidence calling into question UBS Bank's showing that UBS-FS had neither express nor implied authority from UBS Bank to give investment advice to Hussein on UBS Bank's behalf. Under the Servicing Agreement, UBS-FS marketed and serviced loans for UBS Bank, and, in particular, it could "inform its customers and prospects regarding the availability of the Loans" and "refer persons interested in a Loan to the Bank." This did not include marketing other financial and investment products, and providing such additional advice was not "incidental" or "necessary" to servicing Hussein's loans where UBS-FS could collect payments and answer questions about the loans. One UBS Bank employee testified in his deposition that UBS Bank did not engage in "investment strategies with the client" or "make financial or investment proposals to a client." Hussein has not meaningfully refuted UBS Bank's showing that if UBS-FS provided such advice to Hussein, it was outside the scope of the services it performed on UBS Bank's behalf.

b. Apparent Authority

¶34 Hussein contends that UBS-FS had apparent authority to give him financial advice on behalf of UBS Bank because UBS Bank "signaled to Hussein that UBS-FS was its agent in myriad ways." He points to the fact that Financial Advisor filled out personal information on his behalf for the loans, and in the following years, answered any questions Hussein had about the loans.

¶35 Apparent authority "can be inferred only from the acts and conduct of the principal." City Elec. v. Dean Evans Chrysler-Plymouth , 672 P.2d 89, 90 (Utah 1983). This type of authority is "premised upon the corporation's knowledge of and acquiescence in the conduct of its agent which has led third parties to rely upon the agent's actions." Id. But the authority is not merely apparent "because it looks so to the person with whom he deals." Id. The principal must have "cause[d] third parties to believe that the agent [was] clothed with apparent authority." Id. "A belief that results solely from the statements or other conduct of the agent, unsupported by any manifestations traceable to the principal, does not create apparent authority." Burdick v. Horner Townsend & Kent, Inc. , 2015 UT 8, ¶ 22, 345 P.3d 531 (quotation simplified).

¶36 Hussein cannot demonstrate on the record before us that UBS Bank manifested consent to UBS-FS providing financial advice to Hussein on UBS Bank's behalf. After the loans were made, UBS Bank communicated to Hussein that he could "contact [his] Financial Advisor regarding information about [his] Credit Line or other credit services" and the UBS-FS branch manager regarding his "Collateral Account." These communications would have demonstrated to Hussein only that UBS-FS employees had limited authority concerning any questions he had about his loans or his Collateral Account. Hussein fails to point to any other statements or manifestations from UBS Bank indicating that UBS-FS had any broader authority to provide Hussein investment advice on UBS Bank's behalf.

¶37 Hussein therefore has not shown the existence of disputed facts bearing on whether UBS-FS had actual or apparent authority from UBS Bank to provide investment advice to Hussein, much less that UBS Bank breached a fiduciary duty owed to Hussein. Because there are no genuine disputes of material facts on Hussein's Advisory Claims, we conclude that the district court correctly granted summary judgment in favor of UBS Bank on Hussein's breach of fiduciary duty, fraud, and constructive fraud causes of action.

B. The Liquidation Claims

¶38 Hussein argues that UBS Bank violated contractual and fiduciary duties when it liquidated 2,276,756 shares of QSI stock securing his loans, thereby breaching the Loan Agreements and the CRA. The district court concluded that UBS Bank "acted pursuant to its clear and indisputable rights under the Loan Agreements" in liquidating Hussein's QSI shares.

1. Breach of the Loan Agreements

¶39 Hussein contends that UBS Bank's liquidation was neither "necessary" nor "consistent with normal lending practices," thereby breaching the terms of the Loan Agreements. "Well-accepted rules of contract interpretation require that we examine the language of a contract to determine meaning and intent." Glenn v. Reese , 2009 UT 80, ¶ 10, 225 P.3d 185. If the contract language is unambiguous, "the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." Id. (quotation simplified). We also "consider each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none." Id. (quotation simplified). But, generally, "specific provisions ordinarily will be regarded as qualifying the meaning of broad general terms in relation to a particular subject." Smith v. Smith , 2017 UT App 40, ¶ 16, 392 P.3d 985 (quotation simplified).

¶40 To begin with, the Loan Agreements authorized UBS Bank to "take any steps necessary to perfect its interest in the Credit Line, issue a call for additional collateral or force the sale of the Borrower's securities if the Borrower's actions or inactions call the Borrower's creditworthiness into question." Hussein cites an email from Financial Advisor to UBS Bank employees, in which Financial Advisor questioned why UBS Bank was liquidating Hussein's shares, stating, "I ask you, is it really necessary to blow Hussein out of the water without any consideration of his situation?" Regardless of Financial Advisor's expressed concerns, UBS Bank could "take any steps necessary to ... force the sale of [Hussein's] securities," without any requirement that the sale be "necessary" in some absolute sense.

¶41 These same terms, as well as the condition that the steps taken by UBS Bank in forcing a sale be "consistent with normal lending practices," are also found in the general acknowledgments section of the Loan Agreements. Any conflicts that these terms have with the other provisions of the Loan Agreements are resolved in favor of the specific provisions following them. See id. (stating that "to reconcile [an] apparent conflict" courts will employ "the concept that general terms and provisions are restricted by specific terms and provisions following them" and "the specific provision is treated as an exception to the general rule") (quotations simplified). The specific provisions that followed the general acknowledgments section specified a number of events where UBS Bank could liquidate Hussein's QSI shares, including when "the Bank otherwise deems itself or its security interest in the Collateral insecure." In such events, "the Credit Line Obligations will become immediately due and payable (without demand)."

¶42 Nevertheless, Hussein argues that "UBS Bank could not have deemed itself insecure," declaring that the loans were "fully secured" because he had assets totaling $ 85 million. The Loan Agreements stipulated, however, that UBS Bank could "deem[ ] itself or its security interest in the Collateral insecure." The focus of these provisions was not on the insecurity of the loans themselves. Once UBS Bank deemed itself or its security insecure, "the Credit Line Obligations will become immediately due and payable (without demand)" and UBS Bank could "in its sole and absolute discretion, liquidate, withdraw or sell all or any part of the Collateral." And "[a]ny Collateral that may decline speedily in value or that customarily is sold on a recognized exchange or market" could "be sold without providing any Loan Party with prior notice of the sale."

¶43 Because Hussein's collateral had declined substantially in value by July 2012, UBS Bank deemed itself insecure. Financial Advisor alerted Hussein to this fact, notifying him that "[o]ur credit department is insisting we first sell [QSI] shares (about 25,000 shares), or bring in cash or additional [c]ollateral that is not [QSI]." Despite Hussein's personal ability to cover the insecurity, the Loan Agreements provided that Hussein's loans became "immediately due and payable (without demand)" and UBS Bank had the right "in its sole and absolute discretion" to liquidate Hussein's 2,276,756 QSI shares and apply the proceeds as repayment. Because the shares "decline[d] speedily in value" and were sold on a market or exchange, UBS Bank did not have to give Hussein any notice of the sale given the terms of the Loan Agreements. Against the backdrop of these contractual provisions, Hussein has not provided any evidence establishing that UBS Bank improperly liquidated his collateralized QSI shares and breached the Loan Agreements.

2. Breach of the CRA

¶44 Hussein contends that by following UBS Bank's entitlement orders, UBS-FS breached the CRA when it failed to send Hussein a margin deficiency notice and that UBS Bank interfered with fiduciary duties owed by UBS-FS to Hussein. These are the grounds for his claims of tortious interference with contract and aiding and abetting breach of a fiduciary duty.

¶45 First, there is no evidence suggesting that the CRA required UBS-FS to send Hussein a margin deficiency notice. The terms of the CRA stipulated that UBS-FS "may sell securities in your Account without notifying you" and that UBS-FS had "the right, at any time and without prior notice, to satisfy a margin call or to obtain full payment of a margin loan, without a demand for margin or additional margin." UBS-FS policies did permit margin deficiency notices to be given to the customer as a courtesy in some cases. And, as a courtesy, Hussein was notified prior to the liquidation that his margin account was deficient by $ 600,000, but five days passed and he had not taken any action to cover the shortfall in his margin account by some other means. Hussein has not shown the existence of disputed facts that undercut the conclusion that in following UBS Bank's entitlement orders, UBS-FS did not breach the CRA because no margin deficiency notice was required.

¶46 Second, Hussein asserts that UBS Bank caused UBS-FS employees "to ignore Hussein's order to sell the PMP Account[s]" and therefore aided and abetted a breach of a fiduciary duty by UBS-FS. A party aids and abets the breach of a fiduciary duty when it "knowingly join[s] a fiduciary in fraudulent acts, whereby the fiduciary breaches his or her fiduciary duties," and is therefore "jointly and severally liable with that fiduciary." Russell/Packard Dev., Inc. v. Carson , 2003 UT App 316, ¶ 33, 78 P.3d 616 (quotations simplified), aff'd , 2005 UT 14, 108 P.3d 741. But "the gravamen of the claim of aiding and abetting a breach of fiduciary duty is the defendant's knowing participation in the fiduciary's breach." Mower v. Simpson , 2012 UT App 149, ¶ 37, 278 P.3d 1076 (quotation simplified). In resisting UBS Bank's summary judgment motion, Hussein produced no evidence that UBS Bank aided or abetted UBS-FS in a breach of a fiduciary duty owed to Hussein.

¶47 Hussein was aware that UBS Bank and UBS-FS's interests could become adverse to his own if he failed to maintain sufficient margin in his account. Financial Advisor sent Hussein loan disclosure forms warning that "if the securities in your margin account decline in value, so does the value of the collateral supporting your loan and, as a result, [UBS-FS] can take action, such as ... selling securities or other assets in any of your accounts held at [UBS-FS]." And the Loan Agreements provided that UBS-FS would comply with UBS Bank's orders over Hussein's instructions and that if UBS Bank deemed the collateral insecure, it could "in its sole and absolute discretion, liquidate, withdraw or sell all or any part of the Collateral." Hussein therefore could not order UBS-FS to liquidate the collateral in any manner he wished after UBS Bank deemed his collateralized QSI shares inadequate as security for the loans. This included his preference that the PMP accounts be liquidated first, which was a risk that he accepted when he borrowed the $ 35.5 million from UBS Bank on the terms he agreed to because "any and all accounts" with UBS-FS became collateral for the loans. Because UBS Bank could, "in its sole and absolute discretion," liquidate the QSI shares as repayment for the loans when the value of the stock declined, it did not aid or abet UBS-FS in a breach of a fiduciary duty to Hussein.

¶48 Because Hussein fails to demonstrate that there are genuine disputes of material fact remaining on the Liquidation Claims, the district court did not err in determining that UBS Bank was entitled to judgment as a matter of law on Hussein's breach of contract, tortious interference of contract, and aiding and abetting breach of fiduciary duty claims.

II. Attorney Fees

¶49 Hussein contends that the district court erred in awarding attorney fees and costs to UBS Bank. "Generally, attorney fees are awarded only when authorized by contract or by statute." Bilanzich v. Lonetti , 2007 UT 26, ¶ 11, 160 P.3d 1041. "When awarded pursuant to a contract, attorney fees are 'allowed only in accordance with the terms of the contract.' " PC Crane Service, LLC v. McQueen Masonry, Inc. , 2012 UT App 61, ¶ 9, 273 P.3d 396 (quoting Turtle Mgmt., Inc. v. Haggis Mgmt., Inc. , 645 P.2d 667, 671 (Utah 1982) ).

¶50 In this case, the Loan Agreements provided that Hussein would "indemnify" UBS Bank "against any and all claims," and "damages," including "court costs and reasonable attorney fees," "arising out of or in connection with this [a]greement." The only exception was for losses "caused by the Bank's or Securities Intermediary's breach of its obligations under this Agreement." Because the district court granted summary judgment in favor of UBS Bank on all of Hussein's claims, which necessarily arose "out of or in connection with" the Loan Agreements, the district court awarded attorney fees and costs to UBS Bank. Because Hussein failed to produce evidence refuting UBS Bank's showing that it did not breach the Loan Agreements, the district court did not err in awarding attorney fees and costs to UBS Bank.

¶51 UBS Bank seeks an award of its attorney fees reasonably incurred on appeal. "[W]hen a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." Valcarce v. Fitzgerald , 961 P.2d 305, 319 (Utah 1998) (quotation simplified). Accordingly, we award UBS Bank its attorney fees reasonably incurred on appeal and remand to the district court for the calculation of that award.

CONCLUSION

¶52 We affirm the district court's grant of summary judgment in favor of UBS Bank because Hussein failed to demonstrate the existence of any genuine dispute of material fact on his six claims against UBS Bank. We also affirm the award of attorney fees and costs to UBS Bank and award attorney fees reasonably incurred on appeal, remanding to the district court for the limited purpose of calculating that award.

      "In reviewing a district court's grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Ockey v. Club Jam , 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified).

      UBS AG, a global bank headquartered in Zurich, Switzerland, is the parent company of both UBS Bank and UBS-FS.

      Margin loans allow investors to borrow against the value of securities that they already own. Margin Loans , Fidelity, https://www.fidelity.com/trading/marginloans/overview [https://perma.cc/HE5V-9CPE]. "Investors generally use margin to increase their purchasing power so that they can own more stock without fully paying for it." U.S. Sec. & Exch. Comm'n, Margin: Borrowing Money to Pay for Stocks (Apr. 17, 2009), https://www.sec.gov/reportspubs/investor-publications/investorpubsmarginhtm.html [https://perma.cc/QZ64-K78P].

      Hussein granted UBS Bank "a first priority lien and security interest" in "any and all accounts of the Borrower at the Bank or any of its affiliates" and "each Collateral Account," defined as "individually and collectively, each account of the Borrower or Pledgor at [UBS-FS] ... that is either identified as a Collateral Account on the Application to which this Agreement is attached or subsequently identified as a Collateral Account by the Borrower or Pledgor."

      In securities-based lending, a margin account is opened when a customer borrows funds from a firm or bank to pay for a portion of the purchase price for securities. The customer's portion of the purchase price and the initial equity in the account are called margin. See Purchasing on Margin, Risks Involved with Trading in a Margin Account , Financial Industry Regulation Authority, http://www.finra.org/investors/purchasing-margin-risks-involved-trading-margin-account [https://perma.cc/79NU-ZA8A]. Maintenance margin requirements establish the minimum equity that must be maintained by the customer in a margin account. Maintenance Margin , Investopedia, https://www.investopedia.com/terms/m/maintenancemargin.asp [https://perma.cc/Y2J9-EGTX]. "If the equity in a margin account falls below the maintenance margin, the broker will issue a margin call, which requires that the [customer] deposit more cash into the margin account to bring the level of funds up to the maintenance margin, or liquidate securities in order to fulfill the maintenance amount." Id. Hussein's loans were subject to a 50% margin maintenance level. Therefore, if the value of his collateralized securities fell below the 50% equity level that he was required to maintain, a margin call could be triggered and he would have to provide additional funds or liquidate some of his securities to cover the equity shortfall.

      A proxy contest is a battle for the control of a corporation where "a group of shareholders join forces and gather enough shareholder proxies to win a corporate vote." Proxy Fight , Investopedia, https://www.investopedia.com/terms/p/proxyfight.asp [https://perma.cc/7V5Y-T4HG].

      A total of 1.3 million QSI shares were initially pledged as collateral. UBS Bank asserts that Hussein "pledged over $ 100 million in [QSI] stock and other collateral to UBS Bank" to secure repayment for the loans. In deposition testimony, a UBS Bank officer stated that 2.6 million QSI shares secured the UBS Bank loans. Yet these additional pledged shares are not acknowledged in the loan documentation provided in the record. Given that Hussein does not challenge UBS Bank's security interest in the additional QSI shares, we assume that those shares were either collateralized or held in UBS-FS accounts and subject to the terms of the Loan Agreements.

      Hussein raises a third issue, arguing that the district court erred in granting UBS Bank's motion to strike his jury demand. Because we affirm the district court's grant of summary judgment, this issue is moot and we do not address it further.

      Hussein contends that the district court failed to address his fraud claim, but in opposing UBS Bank's motion, Hussein asserted that UBS Bank breached a limited fiduciary duty to disclose under Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC , 2009 UT 65, 221 P.3d 234. The district court determined that UBS Bank did not owe a limited fiduciary duty under Davencourt , and furthermore, it concluded that the Loan Agreements "clearly disclose" the parties' potentially adverse relationship. On appeal, instead of citing Davencourt, Hussein relies on case law concerning fraudulent failure to disclose, while asserting basically the same arguments that were considered and resolved by the district court.

      Article 8 of the Uniform Commercial Code defines a securities intermediary as "a person, including a bank or broker, that in the ordinary course of its business maintains securities accounts for others and is acting in that capacity." U.C.C. § 8-102(14)(ii) (Unif. Law Comm'n 2017). This provision has been adopted verbatim in Utah. See Utah Code Ann. § 70A-8-101(1)(o)(ii) (LexisNexis Supp. 2017).

      Hussein further asserts that UBS Bank withheld critical information from him, including the PVF proposal. A constructive fraud claim requires a party to not only demonstrate " 'a failure to disclose material facts,' " but also " 'a confidential relationship between the parties.' " d'Elia v. Rice Dev., Inc. , 2006 UT App 416, ¶ 51, 147 P.3d 515 (quoting Jensen v. IHC Hosps., Inc. , 944 P.2d 327, 339 (Utah 1997) ). "[A] fiduciary relationship and a confidential relationship are considered one and the same." Id. ¶ 55. Because Hussein cannot establish a fiduciary relationship with UBS Bank-or attribute to UBS Bank UBS-FS's actions in regards to the PVF proposal, as explained in the following section-his constructive fraud claim fails.

      Hussein also asserts a broad agency relationship based on the Loan Agreements designating UBS-FS as the "Bank's agent." But this language is found in the "Acceptance of Application and Agreement" section of the Loan Agreements and narrowly grants UBS-FS authority to receive and accept the Loan Agreements on UBS Bank's behalf, providing, "This application and agreement will be received and accepted by Bank in the State of Utah, or if this application and agreement is delivered to Bank's agent, [UBS-FS], it will be received and accepted."

      Hussein cites two Utah federal district court cases, arguing that similar facts in those cases demonstrate that there is sufficient evidence to show an agency relationship here. But those cases were before the court on a motion to dismiss where "all well-pleaded factual allegations ... are accepted as true and viewed in the light most favorable to Defendant as the nonmoving party." UBS Bank USA v. Ibby, LLC , No. 2:09-CV-372 TS, 2009 WL 4884383, at *3 (D. Utah Dec. 10, 2009) (quotation simplified). See also Morales v. UBS Bank USA , No. 2:14-CV-888-JNP-BCW, 2016 WL 3746527, at *2 (D. Utah July 8, 2016). "By the summary judgment stage of litigation, more is required." Stevens-Henager College v. Eagle Gate College , 2011 UT App 37, ¶ 25, 248 P.3d 1025. And "the plaintiff can no longer rest on such mere allegations as are sufficient at the pleading stage, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Id. (quotation simplified). Accordingly, we look to the specific facts of this case to determine whether an agency relationship existed between UBS Bank and UBS-FS.

      Hussein contends that UBS Bank failed to follow "normal lending practices" because it did not follow its own written procedures by issuing a margin deficiency notice to Hussein prior to selling his QSI shares. However, UBS Bank did not require margin deficiency notices be given to clients and gave them to clients only as a courtesy.

      Hussein also claims that UBS Bank and UBS-FS never notified him of the 50% margin maintenance requirement. However, Financial Advisor sent Hussein loan disclosure forms indicating that the Federal Reserve Board required an initial 50% margin requirement. From all that appears in the record, UBS Bank and UBS-FS did not adjust this margin requirement after the loans were issued and Hussein was required to maintain an ongoing 50% margin maintenance level in his account. But whether Hussein received this notification is not material to his Liquidation Claims because UBS Bank liquidated the shares after deeming itself insecure due to the declining value of the collateral and not because of Hussein's failure to maintain his margin requirement. A separate provision of the Loan Agreements would have granted UBS Bank the right to liquidate Hussein's shares had he not "maintain[ed] sufficient Collateral in a Collateral Account" or "fail[ed] to maintain collateral as required."

      On Hussein's constructive fraud claim, he argued that UBS Bank and UBS-FS never disclosed to him that UBS Bank's interests would be put before his own. He contends that UBS-FS misrepresented to him that his QSI shares would not be sold. But while UBS-FS indicated that it would possibly give him time to either secure cash or additional collateral to cover the shortfall, Hussein did not produce evidence that UBS Bank gave him such assurances, and UBS Bank has shown that it was unwilling to take such a risk in waiting longer to see whether Hussein would cover the growing margin deficiency in some other way. Hussein was aware that, in such circumstances, UBS-FS would have to comply with UBS Bank's orders, not his.

      Hussein argues that a Financial Industry Regulation Authority (FINRA) arbitration panel found UBS-FS to have breached the Loan Agreements and that therefore no attorney fees should be granted. This arbitration decision is irrelevant to this appeal to which UBS-FS is not a party, see Buckner v. Kennard , 2004 UT 78, ¶ 11, 99 P.3d 842 (holding that "a private arbitration award does not have nonmutual collateral estoppel effect unless the parties expressly provide for such preclusive effect beforehand"), and in any event, the decision contains no findings of fact or any indication of the basis on which the arbitration panel made its ruling.


author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, IN the INTEREST OF C.S., C.S., and C.S., persons under eighteen years of age.
    M.C.W., Appellant, v. State of Utah, Appellee.
    No. 20170732-CA
    Court of Appeals of Utah.
    Filed June 6, 2019
    J. Robert Latham, Attorney for Appellant
    Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee
    Martha Pierce, Salt Lake City, Guardian ad Litem
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 In August 2017, the juvenile court granted permanent guardianship of C.S., C.S., and C.S. (collectively, Children) to their paternal grandmother (Grandmother). M.C.W., Children's mother (Mother), filed a post-judgment motion challenging the court's permanency order. Mother argued (1) that the court should order additional investigation into the safety, fitness, and appropriateness of Grandmother's permanent home in another state and the relatives residing there; (2) that the evidence presented at the permanency hearing was insufficient to support Children's permanent placement with Grandmother; and (3) that the court should grant a new trial or alter or amend its findings of fact and conclusions of law to reflect evidence presented at trial that was not included in the court's permanency order. The juvenile court denied the motion, and Mother appeals. We affirm.

BACKGROUND

¶2 Mother has appeared before the juvenile court twice for dependency proceedings initiated by the Utah Division of Child and Family Services (DCFS). In 2008, a juvenile court determined that Children were abused and neglected and removed them from Mother's custody. The basis for the removal was Mother's substance abuse, a drug overdose, and incidents of domestic violence. After Mother's successful completion of reunification services, the juvenile court returned Children to her custody in 2009 and terminated further protective supervision services.

¶3 The second dependency proceeding followed Mother's arrest on July 19, 2016. Mother and Children were residing at a shelter for victims of domestic violence when police responded to a complaint that Children were assaulting staff members and damaging the facility. When they arrived at the shelter, police learned that Mother had an outstanding warrant. She was arrested, and Children were placed in the protective custody of DCFS. The juvenile court then determined that Mother abused and neglected Children.

¶4 At the first shelter hearing in July 2016, the juvenile court found that removal of Children from Mother's custody was necessary and in their best interests. The court determined that Children could be safely returned to Mother's custody only if DCFS provided protective supervision. The court appointed a guardian ad litem for Children and ordered DCFS to prepare a service plan for Mother. The service plan required Mother to provide meals, maintain safe and legal housing for Children, and undertake parent training. The court also ordered Mother to refrain from using drugs and alcohol, to submit to drug tests, and not to associate with anyone under the influence of alcohol.

¶5 At a second shelter hearing in August 2016, Mother conceded that she could not keep Children safe from each other and could not prevent their destructive behavior. Mother therefore voluntarily agreed to return Children to DCFS custody. Children were placed in the temporary custody of DCFS, and the juvenile court ordered DCFS to consider Grandmother, who lived in Arkansas but who was willing to relocate to Utah to care for Children, as a potential placement option for Children. The court was aware that Grandmother had assumed periodic custody of Children over the years when Mother and Children's father had been unable to provide for them.

¶6 Thereafter, Mother requested that the juvenile court return Children to her custody. During a pretrial hearing in September 2016, the juvenile court postponed ruling on Mother's request and allowed the State and the guardian ad litem to continue to look into other possible placements for Children. The court allowed DCFS to make a provisional placement with Grandmother, who at this point had moved from Arkansas to Utah, once she successfully completed a background check. The court also ordered DCFS to provide reunification services to Mother for twelve months.

¶7 At the subsequent adjudication/disposition hearing, the court ordered Mother to undergo a psychological evaluation, parenting training, and family therapy; to obtain stable housing and a legal means of income; and to participate in an assessment to determine the family's needs. Mother made little progress in following this plan however. Her participation in individual therapy was a precondition for starting family therapy, but she did not think she needed therapy and did not attend any sessions for approximately five months after being notified of this requirement. The month she began attending therapy, Mother lost her job and housing, and she stopped attending family therapy. She had continued difficulties in visits with Children, and she often argued with Grandmother, the DCFS caseworker, and Children during those visits. Mother also had trouble following through with appropriate parenting skills during her parent-time and often blamed Children for the problems. During the reunification period, Mother did not maintain consistent employment or obtain stable housing. In contrast, after Children were placed with Grandmother, she consistently cared and provided for them. Grandmother relocated from Arkansas to Utah to care for Children, obtained an apartment and employment, and engaged in behavior-related training and therapy to learn how to better control Children's problematic behaviors. Grandmother provided consistent discipline and ensured that Children attended school, therapy, and parent-time with Mother.

¶8 Mother's permanency hearing began in July 2017 and lasted five days. Throughout the proceedings, the juvenile court recognized that it was in Children's best interests to be placed in a guardianship with a relative if they could not be returned safely to Mother's custody at the end of the reunification period. To that end, Grandmother had informed the court that she was "willing to have [Children] placed with her if [it was] deemed appropriate." Because Grandmother was a permanent resident of Arkansas, she testified at the permanency hearing to the conditions she would provide for Children in Arkansas. Grandmother owned her own business and lived with her husband (Step-grandfather), Children's aunt (Aunt), and Aunt's two young children. Grandmother had been married to Step-grandfather for fifteen years, and he had attended classes for foster parents. They had purchased a five-bedroom house in May 2016, which was being remodeled. Grandmother informed the court about the school Children would attend, her plans to take them to school, and her intention to continue to facilitate their participation in therapy. Grandmother testified that Step-grandfather was once a drug user but that he had been drug-free for over forty years. Neither Grandmother nor Step-grandfather currently used any alcohol or controlled substances. Grandmother acknowledged that Step-grandfather once had Hepatitis C and cirrhosis, and had received a liver transplant; she also acknowledged that Step-grandfather was convicted of robbery forty-five years ago. Grandmother indicated that the records from these incidents have been sealed and that Step-grandfather eventually received a pardon from Arkansas's governor.

¶9 Based on the evidence presented at the permanency hearing and Mother's failure to comply with the service plan, the juvenile court found by a preponderance of the evidence that returning Children to Mother "would create a substantial risk of detriment to their emotional well-being." The court found that guardianship with a relative was the most appropriate plan for Children and thus awarded Grandmother permanent custody and guardianship, and it terminated reunification services for Mother. The findings of fact in the court's permanency order do not include information about Step-grandfather, Aunt, or Grandmother's household in Arkansas.

¶10 After the permanency order was entered, Mother filed a post-judgment motion for a new trial or to amend the court's findings of fact and conclusions of law. The juvenile court denied the motion, and Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Mother appeals the juvenile court's permanency decision on several grounds. First, she contends that the court erred in denying her post-judgment request for additional investigation into Grandmother's living situation in Arkansas. This challenge requires us to determine whether the mandatory fitness and safety provisions contained in Utah Code section 78A-6-307, applicable at the initial stages of a child welfare proceeding, also apply to a juvenile court's permanent placement decisions. This is a question of statutory interpretation, which we review for correctness, giving no deference to the juvenile court's interpretation. In re B.N.A. , 2018 UT App 224, ¶ 8, 438 P.3d 10.

¶12 Second, Mother contends that the juvenile court's findings of fact are insufficient to support its decision to award Grandmother permanent guardianship of Children. "We afford great deference to the juvenile court's findings of fact," In re A.C.M. , 2009 UT 30, ¶ 8, 221 P.3d 185, and will overturn the court's decision only "if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence," In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435. Further, we give the juvenile court "a wide latitude of discretion as to the judgments arrived at based upon not only the court's opportunity to judge credibility firsthand, but also based on the juvenile court judges' special training, experience and interest in this field." In re E.R. , 2001 UT App 66, ¶ 11, 21 P.3d 680 (quotation simplified).

¶13 Third, Mother contends that the juvenile court improperly denied her post-judgment request for a new trial or to alter or amend the judgment, arguing that the court's permanency decision was not supported by sufficient evidence. We review motions for a new trial and motions to amend a judgment for an abuse of discretion. In re A.F.K. , 2009 UT App 198, ¶ 17, 216 P.3d 980. "The [juvenile] court's denial of a motion for a new trial will be reversed only if the evidence to support the [judgment] was completely lacking or was so slight and unconvincing as to make the [judgment] plainly unreasonable and unjust." See Jessop v. Hardman , 2014 UT App 28, ¶ 10, 319 P.3d 790 (quotation simplified). Mother also contends that the factual findings set forth in the court's permanency order were inadequate to justify the court's legal conclusions. "We review the legal adequacy of findings of fact for correctness as a question of law." Shuman v. Shuman , 2017 UT App 192, ¶ 2, 406 P.3d 258 (quotation simplified).

ANALYSIS

I. Fitness and Safety

¶14 Mother contends that the mandatory fitness and safety provisions of section 78A-6-307 of the Utah Code applicable to a juvenile court's initial and temporary placement decisions made at a shelter hearing also apply to the court's permanent placement decisions. Specifically, she argues that a harmonious reading of the statutes governing child welfare proceedings mandates that the fitness, safety, and appropriateness requirements contained in section 78A-6-307 apply throughout all phases of child welfare proceedings. When interpreting statutes, our primary objective "is to give effect to the intent of the legislature." In re J.M.S. , 2011 UT 75, ¶ 13, 280 P.3d 410. First, we look at "the statute's plain language and presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning." Id. (quotation simplified). Because statutory language is often not "plain" when read in isolation, we must read it "in light of its linguistic, structural, and statutory context." Id. (quotation simplified). "For this reason, our interpretation of a statute requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole." Id. (quotation simplified). "If the language of the statute yields a plain meaning that does not lead to an absurd result, the analysis ends." Murray v. Utah Labor Comm'n , 2013 UT 38, ¶ 16, 308 P.3d 461 (quotation simplified).

¶15 If DCFS removes a child from a parent's custody because of abuse or neglect, a juvenile court must determine whether the removal was reasonable and whether continued removal is necessary. See Utah Code Ann. § 78A-6-306 (LexisNexis Supp. 2018). If the court finds continued removal necessary but the child is not returned to the custody of the child's other parent, then section 78A-6-307(7) governs. Pursuant to that section, the juvenile court must first determine whether "there is a relative or a friend who is able and willing to care for the child." Id. § 78A-6-307(7)(a). "If a willing relative or friend is identified under Subsection (7)(a), the court shall make a specific finding regarding" the fitness, safety, and appropriateness of the placement. Id. § 78A-6-307(10)(a). If the court makes "the finding described in Subsection (10)(a)" and the child will be placed with a relative, "the court shall, at a minimum, order" background investigations that include background checks of the relative and each non-relative who resides where the child will be placed. Id. § 78A-6-307(11). The statute also requires DCFS to visit the relative's home. Id. All of these requirements relate back to subsection 78A-6-307(7), which explicitly states that it applies "at the time of the shelter hearing." Id. § 78A-6-307(7).

¶16 These statutory requirements apply early on in a child welfare proceeding when the juvenile court must quickly determine who will have custody of the child until the child is able to be safely returned to the custody of his or her parent, if possible. At this stage, the court is not yet entirely familiar with all the circumstances of the case and has limited information about the parties. Therefore, pursuant to the plain language of the statute, to facilitate placement of a child with a friend or relative, the requirements in section 78A-6-307(11) are mandatory only in connection with the initial placement of the child with a willing relative or friend. Id. § 78A-6-307(11)(a).

¶17 If the juvenile court determines that continued removal of a child is necessary, it then must establish a permanency plan and determine whether reunification services are appropriate for the child and the child's family. Id. § 78A-6-312(2). "In all cases, the minor's health, safety, and welfare shall be the court's paramount concern in determining whether reasonable efforts to reunify should be made." Id. § 78A-6-312(5). If reunification services are appropriate, the court will establish a service plan that outlines certain requirements the parent must meet over a designated period to regain custody of the child.

¶18 When reunification services are ordered, they are generally not to be provided for more than twelve months. Id. § 78A-6-312(13). Once the period for reunification services has expired, the court must hold a permanency hearing to evaluate the placement goal and make a determination if it is still appropriate. See id. § 78A-6-312(16). The purpose of the permanency hearing is to determine whether the child can be safely returned to the child's parent. Id. § 78A-6-314(2). If a parent fails to follow the service plan-that is, fails to remedy the problems that warranted the State's intervention in the first instance-the court must decide whether to continue reunification services or make a final determination regarding parental rights, custody, and guardianship. Id. § 78A-6-314(4). At this phase of the proceedings, if the court determines that a child may not be returned safely to his or her parent, the statute requires only that "the minor's health, safety, and welfare" "be the court's paramount concern." Id. § 78A-6-312(5).

¶19 In this case, Mother argues that the juvenile court was required to follow the procedures outlined in section 78A-6-307 when appointing Grandmother as Children's permanent guardian. Specifically, Mother argues that pursuant to subsection 78A-6-307(11), before Grandmother could be awarded permanent guardianship of Children, the court was required, at a minimum, to order a background check on Step-grandfather and the other individuals residing at Grandmother's house in Arkansas and to order DCFS to visit the Arkansas household. Mother contends that section 78A-6-307(11)'s requirements apply throughout the pendency of a child welfare proceeding. We disagree. A plain language reading of section 78A-6-307 demonstrates that the requirement for background investigations applies only to the determination of whether a child's placement is appropriate at the commencement of the reunification period. Section 78A-6-307 sets forth the required procedures for shelter hearings and the initial placement of a child who has been removed from parental custody. Subsection (11) states that the requirements concerning background checks apply to "making the finding described in Subsection (10)(a)." Id. § 78A-6-307(11). Subsection (10)(a) sets forth the findings the court must make if a "willing relative or friend" has been identified for temporary placement until a permanent determination is reached. Id. § 78A-6-307(10)(a).

¶20 When Grandmother first moved to Utah, she completed and passed the required background check. She obtained housing, and DCFS inspected Grandmother's Utah residence. Meanwhile, Step-grandfather remained in Arkansas. At that time, even before the initial placement, Grandmother was living by herself in Utah, so there was no statutory requirement for a background check on Step-grandfather in Arkansas.

¶21 One year later at the permanency hearing, when the juvenile court determined that Children could not be returned safely to Mother's custody, the court's only statutory directive in figuring out a permanent placement for Children was that the court make its determination based on the "paramount concern" of Children's health, safety, and welfare. Id. § 78A-6-312(5). At the time of the hearing, Grandmother was still living alone in Utah, but even if she had been living with Step-grandfather in Utah or in Arkansas, a background check and a home inspection were not statutorily mandated at the permanency stage of the proceeding. Such investigation would be required at the permanency hearing only if the court found that ordering it was in the best interests of Children. "Once a court has determined that a child has been abused or neglected, that court is given broad discretion in determining the child's permanent placement." In re L.M. , 2001 UT App 314, ¶ 19, 37 P.3d 1188. Such is the case here. Accordingly, we affirm the juvenile court's decision denying Mother's request for further investigation.

II. Sufficiency of the Evidence

¶22 Mother next contends that (1) the juvenile court's findings of fact were insufficient to support its conclusion in the permanency order that Grandmother was an appropriate permanent guardian for Children, and (2) the overall evidence presented at the permanency hearing was not sufficient to support Grandmother as an appropriate person with whom to place Children. We address each argument in turn.

A. Findings of Fact

¶23 A juvenile court's findings of fact will not be overturned unless they are against the clear weight of the evidence. In re E.R. , 2001 UT App 66, ¶ 11, 21 P.3d 680. "To successfully challenge [a] juvenile court's findings of fact," Mother must "marshal all the evidence supporting the [juvenile] court's findings and then show the evidence to be legally insufficient to support the findings." See In re J.M.V. , 958 P.2d 943, 947 (Utah Ct. App. 1998) (quotation simplified). This requires Mother to do more than "present[ ] only those facts favorable to her argument." See In re K.J. , 2013 UT App 237, ¶ 38, 327 P.3d 1203. Instead, Mother must identify flaws in the evidence, and the findings resulting from it, rendering the juvenile court's reliance on it clearly erroneous. See In re L.M. , 2013 UT App 191, ¶ 17, 308 P.3d 553. "Where a party fails to marshal the evidence in support of a challenged finding, the party will almost certainly fail to carry its burden of persuasion on appeal." In re A.J. , 2017 UT App 235, ¶ 34 n.8, 414 P.3d 541 (quotation simplified).

¶24 Here, Mother does not address the factual findings the juvenile court relied on to support its conclusion that Grandmother was an appropriate permanent guardian for Children. Mother does not challenge the evidentiary basis of any of the court's specific findings, nor does she engage in any analysis suggesting that the court's findings did not support its conclusions. Instead, Mother focuses on the lack of certain evidence she claims might have shown that awarding permanent guardianship to Grandmother was not in Children's best interests. Mother cannot carry her burden by merely highlighting potentially problematic issues with Step-grandfather and the lack of additional testimony about Aunt and the household in Arkansas. Rather, she "must identify flaws in the evidence relied on by the [juvenile] court that rendered the [juvenile] court's reliance on it, and the findings resulting from it, clearly erroneous." See Shuman v. Shuman , 2017 UT App 192, ¶ 8, 406 P.3d 258 (quotation simplified). Mother has not done so, and as a result, she has not carried her burden to show that the court's factual findings were inadequate to support the conclusion that permanent placement with Grandmother was appropriate.

B. Evidence for the Placement

¶25 "The Utah Code provides that if the juvenile court orders reunification services for a parent, a permanency hearing shall be held at the expiration of those services ...." In re J.H. , 2006 UT App 205, ¶ 7, 138 P.3d 70 ; see also Utah Code Ann. § 78A-6-312(16) (LexisNexis Supp. 2018). At the permanency hearing a juvenile court has two options: either (1) order that the child be returned to his or her parent, or (2) terminate reunification services and develop a permanency plan for the child if the court "finds that returning the child to the parent poses a substantial risk to the child's well-being."

In re S.K. , 1999 UT App 261, ¶ 12 n.5, 987 P.2d 616 (quotation simplified). On appeal, Mother does not contest the court's finding that returning Children to her custody would pose a substantial risk to Children's well-being. Instead, she argues only that the court abused its discretion by granting Grandmother permanent guardianship, because the evidence presented at trial was insufficient to support that determination.

¶26 "Once a court has determined that a child has been abused or neglected, that court is given broad discretion in determining the child's permanent placement." In re L.M. , 2001 UT App 314, ¶ 19, 37 P.3d 1188. Custody determinations will be upheld if the determinations are "consistent with the standards set by appellate courts and supported by adequate findings of fact and conclusions of law." In re J.M.V. , 958 P.2d at 947 (quotation simplified). "When a foundation for the court's decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence." In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435.

¶27 Here, Mother contends that the evidence presented at the permanency hearing was not sufficient for the juvenile court to establish that Grandmother was an appropriate permanent placement; specifically, she argues that Grandmother's testimony alone did not establish proof by a preponderance of the evidence that guardianship with Grandmother was in Children's best interests. Mother contends that further investigation into the Arkansas household and the individuals who reside there might reveal significant problems with that living situation. We are not persuaded.

¶28 When Children were removed from Mother's care, Grandmother left behind her husband in Arkansas, relocated to Utah, rented an apartment, and obtained employment so that she could care for Children. To support Mother's reunification efforts, Grandmother ensured that Children had transportation to school, parent-time, and therapy. She always made Children available for Mother's parent-time and never missed any therapy appointments. Grandmother also received significant training related to Children's behaviors. The court determined, based on the testimony and evidence presented at the permanency hearing, that Grandmother was able to help Children calm down and manage their conduct, offered consistent discipline, and created appropriate expectations for them. The juvenile court found that Children's behaviors improved significantly while in Grandmother's care. Children also indicated that it was their desire to be placed with Grandmother.

¶29 At the permanency hearing, the juvenile court determined that Children could not be returned safely to Mother. Consistent with the original concurrent goal for Children established at the adjudication/disposition hearing, the court found that placing Children with Grandmother was appropriate. We are not persuaded by Mother's argument that Grandmother's testimony alone is insufficient to establish that she and the individuals who reside in her Arkansas household will provide an appropriate living situation for Children. The judge in this case not only heard Grandmother's testimony at the permanency hearing, which provided the court with an opportunity for "a thoughtful, experience-based evaluation" of Grandmother, see In re Z.D. , 2006 UT 54, ¶ 49, 147 P.3d 401, but had also worked with Grandmother for more than a year, giving the court an extended "opportunity to judge [Grandmother's] credibility firsthand," see In re E.R. , 2001 UT App 66, ¶ 11, 21 P.3d 680. The judge's determination has added credibility based on his "special training, experience and interest in this field." See id. (quotation simplified). The court's findings were supported by evidence in the record. Therefore, we are not convinced that the court went against the clear weight of the evidence in finding that Grandmother is an appropriate permanent guardian.

¶30 Mother is correct that the court could have ordered more investigation that might have uncovered something that would render placement with Grandmother less appropriate. But Mother does not indicate what potentially troubling information about Step-grandfather and Aunt may be exposed by further investigation or argue that the court did not take into account the negative information about Step-grandfather's distant past to which Grandmother testified. Mother provides no evidence to support her speculative arguments and, because of this, fails to persuade us that the juvenile court did not consider Grandmother's housing situation in Arkansas or Step-grandfather's and Aunt's histories; those issues were discussed at the permanency hearing and the court considered them.

¶31 We will overturn a juvenile court's decision "only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence." In re B.R. , 2007 UT 82, ¶ 12, 171 P.3d 435. Because we determine that the court's decision to grant permanent custody and guardianship of Children to Grandmother was supported by sufficient evidence, we will not disturb it. See In re C.C.W. , 2019 UT App 34, ¶ 25, 440 P.3d 749.

III. Motion for New Trial and to Amend the Judgment

¶32 Finally, Mother contends that the juvenile court improperly denied her post-judgment motion for a new trial and to amend the juvenile court's permanency order to include additional findings. After the entry of judgment, rule 52 of the Utah Rules of Civil Procedure permits a party to request that the court "amend its findings or make additional findings and ... amend the judgment accordingly." Utah R. Civ. P. 52(b). Presuming that the additional or amended findings undermine the court's conclusions of law, "[t]he motion may accompany a motion for a new trial under Rule 59." Id .

¶33 In her motion, Mother sought amendment or alteration of the permanency order to include additional findings regarding facts that were allegedly discussed at the permanency hearings. One reason the court gave for its denial of Mother's post-judgment motion is that Mother failed to point the court to the portions of the record demonstrating "which of the proposed facts were actually presented to the Court, whether they were disputed, or merely raised through questions by counsel." Accordingly, the juvenile court found that it lacked "the ability to determine if these facts were raised at trial in such a manner that the Court could find them to be true or not."

¶34 Mother contends that because the juvenile court required her to cite the record in her motion, the juvenile court did not in fact consider any of the information Mother sought to be added to the court's permanency order. Mother argues that the juvenile court's alleged failure to consider her evidence "make[s] the verdict plainly unreasonable and unjust." She claims that "[h]ad the juvenile court reviewed the hearing audio, it would have discovered ... that the juvenile court, [DCFS], and Mother would benefit from additional time to gain more information." We are not persuaded.

¶35 To the extent that the proposed findings are supported by evidence in the record, Mother has not demonstrated that the court did not consider this evidence when making its permanency decision. See In re Estate of Knickerbocker , 912 P.2d 969, 979 (Utah 1996) (stating that the court "is not required to recite each indicia of reasoning that leads to its conclusions"). As Mother acknowledges, the "juvenile court had the benefit of presiding over the permanency hearing," and it "hear[d] the evidence first-hand." Mother also claims that the facts supporting the amendments and alterations she sought to add to the permanency order were "discussed at length during Grandmother's testimony." Additionally, some of Mother's proposed additions simply note that parts of Grandmother's testimony have not yet been independently verified. The juvenile court was cognizant of this fact, stating that it chose to retain jurisdiction over Children "purposefully so that those unknown issues could be addressed and monitored by the Court to the extent possible." The court's permanency order adequately sets forth the basis for its permanency decision, and the court was not required to give further explanation as to why Grandmother's testimony was credible. See In re S.T. , 928 P.2d 393, 398-99 (Utah Ct. App. 1996). We accordingly decline to disturb the juvenile court's ruling on this issue.

CONCLUSION

¶36 The juvenile court correctly denied Mother's post-judgment request for additional findings because the placement provisions of Utah Code section 78A-6-307 do not apply to permanent transfers of custody and guardianship. Moreover, the court's findings of fact were sufficient to support the permanent placement of Children with Grandmother. Finally, Mother has not shown that the juvenile court erred in denying her request to amend the permanency order entered by the court and for a new trial.

¶37 Affirmed.

      Children's father failed to respond to the State's petition and the court entered a default judgment against him. L.S. has an extensive history of substance abuse, domestic violence, and involvement with the criminal justice system.

      Mother raises some valid concerns as to a potential need for ongoing background checks and home inspections at every stage of a child welfare proceeding, especially if the award of permanent custody includes moving children out of state. But a plain reading of subsections 78A-6-307(10)-(15) demonstrates that the requirements of these subsections do not extend beyond the shelter-hearing stage of a child welfare case. A resolution in Mother's favor on this issue would require a statutory change.

      A child's desire as to whom he or she wishes to live with may be considered by the juvenile court but is not controlling. While there "is no definitive checklist of factors to be used for determining custody since such factors are highly personal and individual," a juvenile court may consider "the preference of the child" as one of several factors, but it is not binding on the court. In re J.M. , 940 P.2d 527, 535 (Utah Ct. App. 1997) (quotation simplified). Best interest determinations often turn on many factors that the juvenile court "is best suited to assess, given its proximity to the parties and the circumstances." Id. (quotation simplified). Therefore, we will affirm a juvenile court's custody award so long as the court has not abused its discretion. Id.

      The juvenile court also denied Mother's motion on a second and independent ground, stating that "Mother fails to show that the proposed facts are necessary to a conclusion that Grandmother be appointed as permanent guardian." Because Mother failed to address the second reason for the denial of her post-judgment motion her challenge necessarily fails. See Hi-Country Estates Homeowners Ass'n v. Jesse Rodney Dansie Living Trust , 2015 UT App 218, ¶ 5, 359 P.3d 655 ("[A]n appellant must address the basis for the district court's ruling."); Salt Lake County v. Butler, Crockett & Walsh Dev. Corp. , 2013 UT App 30, ¶ 28, 297 P.3d 38 ("This court will not reverse a ruling of the trial court that rests on independent alternative grounds where the appellant challenges only one of those grounds.").