author: HARRIS, Judge:

text:
    Gary WILSON, Appellee, v. Elisabeth W. SANDERS and Hiram Sanders, Appellants.
    No. 20180048-CA
    Court of Appeals of Utah.
    Filed July 18, 2019
    Richard Lee Sanders, Attorney for Appellants
    Clinton Justin Cutler, Attorney for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Amended Opinion

      This Amended Opinion replaces the Opinion in Case No. 20180048-CA that was issued on June 27, 2019. After our original opinion issued, we noted a matter in Paragraph 25 that required clarification, and we amended that paragraph and added footnote 4. This Amended Opinion does not alter any of the conclusions reached in our original opinion.

   HARRIS, Judge:

¶1 After Elizabeth Wilson (Mother) died, her two adult children ended up in litigation over her estate. Gary Wilson (Plaintiff) sued his sister Elisabeth W. Sanders (Sister) and her husband Hiram Sanders (collectively, Defendants), seeking an order invalidating Mother's most recent testamentary instrument on the grounds that Defendants had subjected her to undue influence, and alleging that Defendants had intentionally inflicted emotional distress upon him. The case was eventually tried to a jury, which was persuaded by Plaintiff's arguments and not only found that Defendants had unduly influenced Mother, but also awarded Plaintiff $170,000 on his emotional distress claim, most of which was for punitive damages. Defendants now appeal, and raise various arguments assailing the jury's verdict. We affirm.

BACKGROUND

¶2 In December 2000, Plaintiff permanently relocated from Colorado to Utah to help care for his aging parents, and moved into their house. Plaintiff paid monthly rent and lived in the basement, while his parents lived upstairs. Plaintiff was employed as a school bus driver, which allowed him to spend time at home caring for his parents and maintaining the house. Plaintiff testified that, during this time, Defendants-who lived in Utah-came to the house to visit only once or twice a year, usually on major holidays. In 2006, Mother created a revocable trust (First Trust) that listed both Plaintiff and Sister as beneficiaries, each slated to receive an equal distribution of trust assets. In 2008, Plaintiff and Sister's father passed away.

¶3 In February 2015, at the age of eighty-five, Mother fell in a parking lot and hit her head, requiring emergency cranial surgery. Following the surgery, Mother had difficulty speaking and forming sentences, and even had a hard time recognizing her children. According to Plaintiff, she seemed "eager to please" and "very susceptible to suggestion and manipulation."

¶4 In April 2015, at Defendants' suggestion, Mother revoked the First Trust and created a second trust (Second Trust), changing the identity of the trustee to an attorney selected by Sister, but not changing the identity of the beneficiaries. One month later, Mother amended the Second Trust to alter the percentage of assets her children would receive, changing the arrangement from fifty-fifty to sixty-forty in favor of Plaintiff.

¶5 In July 2015, without informing Plaintiff, Defendants took Mother out of her home and placed her in a hotel room, where she resided for six weeks. During this time, Defendants did not allow Mother to make or receive phone calls and Plaintiff was unable to contact her. While still living in the hotel and out of contact with Plaintiff, Mother met with the attorney/trustee and again revised her trust (Third Trust), this time removing Plaintiff as a beneficiary entirely and leaving everything to Sister and Sister's children. At the time, Plaintiff was unaware that Mother had disinherited him.

¶6 Defendants finally allowed Mother to return to her home on the condition that Plaintiff vacate the basement apartment. Plaintiff complied, and Defendants moved into the basement apartment, a series of events that caused the relationship between Plaintiff and Defendants to become even more tense. After they moved into Mother's house, Defendants continued to deny Plaintiff visits with Mother, and on multiple occasions they called the police when Plaintiff tried to visit Mother in her home. However, on each such occasion Plaintiff was allowed to see Mother after the officers spoke to her and confirmed that, as far as she was concerned, Plaintiff was welcome in her home.

¶7 Also during this time, Plaintiff claimed that his emotional and mental health went into decline. According to Plaintiff, not being able to contact Mother caused him "significant emotional distress" and "affected his work performance in such a way that his job was in jeopardy." Indeed, Plaintiff's supervisor testified that, on one occasion, Plaintiff appeared so distraught at work that she feared he could not perform his job safely, so she sent him home for the day. In addition, his coworker and neighbor testified that his lighthearted personality disappeared and that he began to vocalize suicidal thoughts. Plaintiff testified that he ended up in the hospital on two occasions, and underwent "numerous therapy sessions" in an effort to restore his mental health. On one occasion, Plaintiff drew a bullet on a calendar, indicating the date on which he planned to commit suicide. Plaintiff's neighbor was so concerned about Plaintiff that he called both the police and Defendants to inform them about Plaintiff's suicidal comments. When the neighbor told Defendants about the calendar, Sister remarked, "Wouldn't that make things easier?"

¶8 In January 2016, Mother slipped into a coma, but Defendants did not promptly notify Plaintiff about Mother's declining condition; Plaintiff did not learn about her condition until three days later. Shortly thereafter, Mother passed away. Plaintiff first heard the news from Sister when he called to check on Mother. Although Plaintiff was at work only a few minutes away at the time of Mother's passing, Defendants did not inform him when Mother had "only hours to live." Plaintiff testified that not being with Mother at the time of her death was traumatic-something "[t]hat's going to mess with [him] the rest of [his] life."

¶9 After Mother's passing, Plaintiff discovered that he had been completely disinherited under the Third Trust. Plaintiff then filed suit seeking to invalidate the Third Trust on the basis of undue influence. He also brought a claim against Defendants for intentional infliction of emotional distress (IIED). Following a three-day trial, Defendants' counsel moved for a directed verdict as to Plaintiff's undue influence claim. The trial court denied the motion and the case was sent to the jury, which found in favor of Plaintiff and invalidated the Third Trust on the basis of undue influence. The jury also found in favor of Plaintiff on his IIED claim, awarding him both non-economic and punitive damages. The jury found Defendants each separately liable to Plaintiff for $10,000 in compensatory non-economic damages, and in addition awarded Plaintiff $150,000-for which Defendants were jointly and severally liable-in punitive damages.

¶10 Following the trial, Defendants timely filed a motion, grounded in rule 60 of the Utah Rules of Civil Procedure, to vacate the judgment. On March 29, 2018, the court entered final judgment on the verdict, and a few days later, on April 8, 2018, the trial court issued a written minute entry denying the rule 60 motion. Then, on April 24, 2018, Defendants filed a notice of appeal (Notice), which states as follows:

The Appeal is taken from the Final Judgment entered March 29th, 2018, and against orders or rulings upon motions such that if the Final Judgment be reversed ... that necessarily shall be of same effect on any such irrevocably linked byproduct of the Judgment.

Defendants now appeal from the trial court's entry of judgment on the jury verdict and from its post-judgment denial of their rule 60 motion.

ISSUES AND STANDARDS OF REVIEW

¶11 Defendants raise five issues for our review. The first two issues consist of challenges to the sufficiency of the evidence. First, Defendants contend that "the jury's award of damages for [IIED should] be vacated" because it was not supported by sufficient evidence. Second, Defendants contend that "the jury's award of punitive damages [should] be vacated because it was not based on sufficient evidence," and it "exceeds established limits for punitive damages awards." When considering an insufficiency of the evidence claim on appeal, "we do not weigh the evidence de novo." Water & Energy Sys. Tech., Inc. v. Keil , 2002 UT 32, ¶ 15, 48 P.3d 888 (quotation simplified). Rather, we view "the evidence in the light most favorable to the prevailing party," Crookston v. Fire Ins. Exch. , 817 P.2d 789, 799 (Utah 1991), and we reverse a jury's verdict only when "the evidence presented at trial is so lacking that reasonable minds could not have reached the conclusion that the jury reached," Harding v. Bell , 2002 UT 108, ¶ 14, 57 P.3d 1093.

¶12 Third, Defendants contend that the trial court erred in denying their motion for a directed verdict on Plaintiff's undue influence claim. We review a trial court's decision on a motion for a directed verdict for correctness, and a trial court may enter a directed verdict "only if, after looking at the evidence and all reasonable inferences in a light most favorable to the nonmoving party," it "concludes that there is no competent evidence which would support a verdict in the nonmoving party's favor." USA Power, LLC v. PacifiCorp , 2016 UT 20, ¶ 34, 372 P.3d 629 (quotation simplified).

¶13 Fourth, Defendants contend that the trial court erred in denying their rule 60 motion to vacate the judgment. Ordinarily, we review the denial of a motion to vacate a judgment for abuse of discretion. Bodell Constr. Co. v. Robbins , 2014 UT App 203, ¶ 5, 334 P.3d 1004. However, in this case, we lack jurisdiction to consider the merits of this issue, because Defendants did not specifically include it in their Notice. Jensen v. Intermountain Power Agency , 1999 UT 10, ¶ 7, 977 P.2d 474 ; see also Perea v. State , 2017 UT App 67, ¶ 6, 397 P.3d 770 (stating that "a ruling on a rule 60(b) motion culminates in a separate, appealable order" that usually "may not be included in an existing appeal because the issues raised in the appeal predated the ruling on the rule 60(b) motion" (quotation simplified)).

¶14 Fifth, Defendants contend that the trial court erred "in permitting inadmissible and prejudicial testimony throughout the trial." "We grant a trial court broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion." Robinson v. Taylor , 2015 UT 69, ¶ 8, 356 P.3d 1230 (quotation simplified).

¶15 Additionally, pursuant to rule 33 of the Utah Rules of Appellate Procedure, Plaintiff seeks an award of attorney fees and costs incurred in defending this appeal on the grounds that Defendants' appeal is frivolous or brought for delay.

ANALYSIS

I. Sufficiency of the Evidence

A. Jury's Award of Damages for IIED

¶16 Defendants first challenge the jury's award of damages for IIED, contending that the award should be set aside because it was not supported by sufficient evidence. We disagree.

¶17 When challenging the sufficiency of the evidence underlying a jury's verdict, the party making the claim must demonstrate "that the [verdict] lack[s] substantial evidentiary support." Water & Energy System Tech., Inc. v. Keil , 2002 UT 32, ¶ 15, 48 P.3d 888. Accordingly, the appealing party should "marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." Chapman v. Uintah County , 2003 UT App 383, ¶ 31, 81 P.3d 761 (quotation simplified). Although recent case law dictates that a challenge to the sufficiency of the evidence will no longer fail solely because of a "technical deficiency in marshaling," a party "will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal." State v. Nielsen , 2014 UT 10, ¶¶ 41-42, 326 P.3d 645. Here, Defendants have "made no attempt to marshal the evidence in support of the jury['s] finding of [IIED]," see Crookston v. Fire Ins. Exch. , 817 P.2d 789, 800 (Utah 1991), nor have they otherwise persuasively demonstrated why the verdict should be set aside, see Nielsen , 2014 UT 10, ¶¶ 41-42, 326 P.3d 645.

¶18 After a three-day trial, the jury found that Defendants had intentionally inflicted emotional distress on Plaintiff, and awarded him both compensatory and punitive damages. "In Utah, a claim for [IIED] is actionable if: (i) the defendant's conduct is outrageous and intolerable ...; (ii) the defendant intends to cause ... emotional distress; (iii) the plaintiff suffers severe emotional distress; and (iv) the defendant's conduct proximately causes the plaintiff's emotional distress." Hatch v. Davis , 2004 UT App 378, ¶ 40, 102 P.3d 774. Here, although the evidence was certainly conflicting, the record contains evidence sufficient to support each element of an IIED claim.

¶19 First, there was evidence that Defendants' conduct was "outrageous and intolerable." See id. For example, there was evidence that it was not until after Mother had suffered a head injury that Defendants began to take much of an interest in her, and that, after the injury, Defendants attempted to take control of Mother's care by removing her from her home and cutting her off from Plaintiff. During this period, they refused to allow Mother to use her phone and they brought about Plaintiff's eviction from the home he had been sharing with Mother for the past fifteen years. After Mother returned home, Defendants sometimes called the police on Plaintiff when he tried to visit Mother. But the police reports contain evidence that the calls were frivolous and that Plaintiff was not actually a threat to Mother. And although Plaintiff worked in close proximity to Mother's house, he was not able to be with her at the time she passed, because Defendants did not inform him that she had "only hours to live."

¶20 Second, there is evidence that Defendants intended their actions to cause Plaintiff emotional distress. See id. At trial, both Defendants admitted to being aware that Plaintiff was apparently depressed and suicidal, and the jury heard evidence from which it could reasonably infer that Plaintiff's depression stemmed from the turmoil within his family. Furthermore, after learning that Plaintiff was contemplating suicide, Defendants remarked to a neighbor that Plaintiff's suicide would "make things easier."

¶21 Third, there was evidence presented to support the conclusion that Plaintiff did indeed suffer severe emotional distress. See id. Among other things, Plaintiff was unable to perform his job safely and was sent home from work; he was hospitalized and needed multiple therapy sessions; and his coworkers and close friends observed that he had become increasingly depressed and suicidal.

¶22 Fourth, the record supports the conclusion that Plaintiff's emotional distress was proximately caused by Defendants' actions. See id. Notably, Plaintiff's coworkers and friends noticed that his behavior changed and he became depressed and potentially suicidal after Defendants began to interfere with his relationship with Mother.

¶23 In sum, Defendants have not demonstrated a reason for us to overcome the "healthy dose of deference owed to ... jury verdicts." See Nielsen , 2014 UT 10, ¶ 41, 326 P.3d 645. There existed evidence on both sides of this question, and the jury could readily have returned a verdict in favor of Defendants on the IIED claim. But the jury apparently found Plaintiff's version of events more credible and, on these facts, that was its decision to make. See Carlton v. Brown , 2014 UT 6, ¶ 51, 323 P.3d 571 ("Where reasonable men may differ, it is for the jury ... to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." (quotation simplified)). We are therefore unpersuaded that there existed insufficient evidence to support the jury's determination that Defendants intentionally caused Plaintiff emotional distress.

B. Jury's Award of Punitive Damages

¶24 Defendants next argue that the jury's award of punitive damages should be vacated because "it was not based on sufficient evidence" and it "exceeds established limits for punitive damages awards." We disagree. Here, Defendants have failed to persuade us that there is insufficient evidence to support the jury's award of punitive damages. First, Defendants have "made no attempt to marshal the evidence in support of the jury['s] finding of [punitive damages]." See Crookston v. Fire Ins. Exch. , 817 P.2d 789, 800 (Utah 1991). While, as noted, this failure to marshal no longer merits an automatic default, see State v. Nielsen , 2014 UT 10, ¶¶ 41-42, 326 P.3d 645, Defendants make no attempt to address the evidence supporting the award, as outlined above. In short, after reviewing the record, we are convinced that the punitive damages verdict was supported by sufficient evidence.

¶25 With regard to excessiveness, the only argument Defendants make is one grounded in constitutionality, citing our supreme court's pronouncement that "ratios exceeding single-digits ... mark the outer limits of due process." See Campbell v. State Farm Mut. Auto Ins. Co. , 2004 UT 34, ¶ 39, 98 P.3d 409. Indeed, in State Farm Mutual Automobile Insurance Co. v. Campbell , 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the United States Supreme Court recognized that punitive damages awards that do not exceed a single-digit ratio between punitive and compensatory damages will likely comport with due process. Id. at 425, 123 S.Ct. 1513. Here, the jury awarded Plaintiff $20,000 in compensatory damages and $150,000 in punitive damages, a ratio of 7.5 to 1. Such an award therefore falls within the constitutionally acceptable bounds recognized by the United States Supreme Court. We therefore reject Defendants' arguments to the contrary.

II. Denial of Directed Verdict

¶26 Defendants next contend that the trial court erred in denying their motion for a directed verdict on Plaintiff's undue influence claim. This claim fails for the same reasons articulated above; namely, Defendants have failed to meet their burden of persuasion. Our "standard of review of a directed verdict is the same as that imposed upon a trial court." Gables at Sterling Village Homeowners Ass'n, Inc. v. Castlewood-Sterling Village I, LLC , 2018 UT 04, ¶ 21, 417 P.3d 95 (quotation simplified). "A trial court is justified in granting a directed verdict only if, examining all evidence in a light most favorable to the non-moving party, there is no competent evidence that would support a verdict in the non-moving party's favor." Id. (quotation simplified). Defendants have failed to demonstrate that there was "no competent evidence" to support the jury's finding that Mother disinherited Plaintiff while under the undue influence of Defendants. See id. (quotation simplified). In fact, as discussed above, there was evidence that Mother amended her trust after sustaining a head injury, which left her disoriented, and during the time when Defendants had sequestered Mother in a hotel where she was cut off from all contact with the outside world. While a jury could reasonably have reached the opposite conclusion, and found in favor of Defendants on this point, the jury's decision to believe Plaintiff's version of events over Defendants' was not unreasonable and was supported by competent evidence. The trial court therefore did not err in denying Defendants' motion for a directed verdict.

III. Denial of Rule 60 Motion

¶27 Defendants also challenge the trial court's denial of their rule 60 motion. But this challenge falls outside the scope of our jurisdiction because Defendants did not identify this issue in their Notice. Rule 3(d) of the Utah Rules of Appellate Procedure requires that a notice of appeal "designate the judgment or order, or part thereof, appealed from." Utah R. App. P. 3(d). Defendants' Notice, which was filed on April 24, 2018, states that the "Appeal is taken from the Final Judgment entered March 29th, 2018, and against orders or rulings upon motions" that are bound up with the final judgment. But the Notice does not identify the trial court's later order denying their rule 60 motion.

¶28 Our appellate jurisdiction is limited to considering only the orders and judgments specified in the notice of appeal. If the notice fails to identify the specific order sought to be appealed, we cannot assume jurisdiction over the appeal. See Jensen v. Intermountain Power Agency , 1999 UT 10, ¶ 7, 977 P.2d 474 (holding that " rule 3(d) 's requirement is jurisdictional" and that "the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case" (quotation simplified)); see also Pulham v. Kirsling , 2019 UT 18, ¶ 27, 443 P.3d 1217 (exercising appellate jurisdiction over only the three issues specifically referenced in the notice of appeal). However, our supreme court has recognized "that the language of rule 3(d) [does] not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review." Zions First Nat'l Bank, NA v. Rocky Mountain Irrigation, Inc. , 931 P.2d 142, 144 (Utah 1997) (quotation simplified). Thus, "when an appeal is taken from a final judgment, there is no requirement that the notice designate intermediate orders which are to be raised as issues on appeal." U.P.C., Inc. v. R.O.A. Gen., Inc. , 1999 UT App 303, ¶ 13, 990 P.2d 945 (quotation simplified); see also 16A Charles Alan Wright et. al., Federal Practice & Procedure Jurisdiction § 3949.4 (4th ed. 2019) ("A notice of appeal that names the final judgment suffices to support review of all earlier orders that merge in the final judgment under the general rule that appeal from a final judgment supports review of all earlier interlocutory orders, at least if the earlier orders are part of the progression that led up to the judgment rather than being separate from that progression."). Because Defendants referenced the entire final judgment in their Notice rather than merely discrete parts of it, see Pulham , 2019 UT 18, ¶¶ 25-27, 443 P.3d 1217, we have jurisdiction to consider a challenge to the final judgment itself as well as any earlier intermediate orders bound up or subsumed in the final judgment.

¶29 Accordingly, the question we must address is whether the trial court's order denying Defendants' rule 60 motion was subsumed in the final judgment. Defendants' Notice states that their "[a]ppeal is taken from the Final Judgment entered March 29th, 2018." But the trial court did not deny the rule 60 motion until April 8, 2018, more than a week after the entry of the final judgment. Because they are issued after final judgment, post-judgment orders are ordinarily not subsumed in the final judgment, and generally parties must either file a separate notice of appeal regarding those orders or, if they are entered before the filing of the notice of appeal, at least specifically mention them in the notice of appeal being taken from the final judgment. See Dennett v. Ferber , 2013 UT App 209, ¶ 3, 309 P.3d 313 (per curiam) (finding that because a "ruling on a rule 60(b) motion culminates in a separate, appealable order ... this court lacks jurisdiction to resolve issues raised in a ruling on a rule 60(b) motion unless a new notice of appeal has been filed"). Here, entry of the trial court's order denying Defendants' rule 60 motion occurred post-judgment, and Defendants offer no argument for how such an order could possibly have been subsumed within the earlier entered final judgment, or been part of the progression that led to it. Accordingly, because Defendants did not specifically state, in their Notice, that they intended to appeal from that order, we lack jurisdiction to consider an appeal from the order denying the rule 60 motion.

IV. Impermissible and Prejudicial Trial Testimony

¶30 Next, Defendants contend that the trial court erred in "permitting inadmissible and prejudicial testimony throughout the trial." But Defendants failed to object at trial to any testimony as being "prejudicial," and therefore did not present the issue to the trial court "in such a way that the court ha[d] an opportunity to rule on it." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation."). Accordingly, this issue has not been preserved for our review. A party that "wishes an appellate court to address" an unpreserved issue "must argue that an exception to preservation applies." Id. ¶ 27. Here, Defendants do not argue for the applicability of any particular exception to our preservation rules. Accordingly, we do not discuss the matter further. See, e.g. , Federated Capital Corp. v. Deutsch , 2018 UT App 118, ¶ 21, 428 P.3d 51 (declining to "reach the merits" of an issue because it was not preserved for appellate review, and the appellant did "not assert that an exception to the preservation rule applies").

V. Attorney Fees

¶31 Finally, Plaintiff asks us, pursuant to rule 33 of the Utah Rules of Appellate Procedure, to award him the attorney fees he has incurred in defending against this appeal. Although we affirm the judgment in favor of Plaintiff, we deny his request for attorney fees.

¶32 Pursuant to rule 33, if we determine that a motion or appeal is "either frivolous or for delay," we must award "reasonable attorney fees to the prevailing party." Utah R. App. P. 33(a). Although Plaintiff is the prevailing party on appeal, we cannot conclude that Defendants' appeal, taken as a whole, was "frivolous" or intended for "any improper purpose." See id. R. 33(b) (defining a frivolous appeal as "not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law," and an appeal for delay as "one interposed for any improper purpose such as to harass, cause needless increase in the cost of litigation, or gain time that will benefit only the party filing the appeal"); see also Tobler v. Tobler , 2014 UT App 239, ¶ 47, 337 P.3d 296 (holding that "the imposition of rule 33 sanctions is a serious matter and only to be used in egregious cases, lest the threat of such sanctions should chill litigants' rights to appeal lower court decisions" (quotation simplified)). As such, we conclude that an award of attorney fees under this rule would be inappropriate.

CONCLUSION

¶33 For the reasons articulated above, we affirm the ruling of the trial court in all respects, but decline to award Plaintiff the attorney fees he incurred in defending the appeal.

      "On appeal, we recite the facts from the record in the light most favorable to the jury's verdict." Smith v. Fairfax Realty, Inc. , 2003 UT 41, ¶ 3, 82 P.3d 1064 (quotation simplified).

      Defendants also assert that the jury's punitive damages award was inappropriate because it held Defendants "jointly and severally liable for punitive damages." But Defendants invited the trial court to adopt a special verdict form that provided only one "joint and several" line for any punitive damages award, and therefore any error on this point-if error exists, a conclusion we stop short of drawing-constitutes "invited error," which "preclud[es] appellate review." See Pratt v. Nelson , 2007 UT 41, ¶ 17, 164 P.3d 366 (quotation simplified); see also State v. Geukgeuzian , 2004 UT 16, ¶ 9, 86 P.3d 742 ("[A] party cannot take advantage of an error committed at trial when that party led the trial court into committing the error." (quotation simplified)). During trial, the court reviewed the proposed special jury verdict form with both parties and, of its own accord, noted that the form provided for just "one award of punitive damages" with no provision for "decid[ing what] each one owes," and asked whether it needed to "separate this out" to allow the jury to make clear which defendant would owe what amount of punitive damages. However, both attorneys indicated that they would prefer to keep just one line for punitive damages. As we have previously recognized, an "affirmative representation" that a party has no further objection to a jury instruction "falls within the ambit of the invited-error doctrine." ConocoPhillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 20, 397 P.3d 772 ; see also State v. Chaney , 1999 UT App 309, ¶ 55, 989 P.2d 1091 (finding invited error when a defendant objected to the trial court's use of a correct jury instruction and later challenged the substituted erroneous jury instruction on appeal); State v. Perdue , 813 P.2d 1201, 1206 (Utah Ct. App. 1991) (finding invited error where a defendant challenged an instruction that he had submitted to the trial court). Because Defendants' counsel was given an opportunity to object to the one-line entry on the special verdict form for punitive damages and indicated his assent, any error in the verdict form on this point was invited. Accordingly, we do not consider this issue further.

      Defendants make no other argument with regard to the ratio between the award of compensatory damages and the award of punitive damages, and specifically raise no argument that the ratios involved in this award were excessive under the framework articulated by our supreme court in Crookston v. Fire Insurance Exchange , 817 P.2d 789 (Utah 1991). Id. at 810 (stating that "[t]he general rule" is "where the punitives are well below $100,000, punitive damage awards beyond a 3 to 1 ratio to actual damages have seldom been upheld," and that for punitive damages awards over $100,000 "the acceptable ratio appears lower"). We therefore do not address any such argument.

      For the reasons set forth herein, we also deny Defendants' pending Motion for Extraordinary Relief or Other Appropriate Relief, as well as Defendants' pending Motion for Summary Reversal of Clear and Prejudicial Errors.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Tonia Schnae BROWN, Appellant.
    No. 20161036-CA
    Court of Appeals of Utah.
    Filed July 18, 2019
    Debra M. Nelson, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Tonia Schnae Brown appeals her convictions on three counts of securities fraud, second-degree felonies. We affirm.

BACKGROUND

¶2 Two Utah residents, Victim and Friend, were introduced to Brown by a mutual friend (Advisor). Brown had informed Advisor that she had made a substantial amount of money as a commercial real estate broker prior to the financial crisis of 2008 but had moved her funds to offshore accounts at that time because she was concerned about the United States' financial system. She claimed to have just under $50 million in an account at InterBank, a bank operating out of Saint Vincent and the Grenadines, as well as $300,000 in an account with the Bank of China in Hong Kong. Brown represented that she owed $59,500 in value added taxes (VAT) to the Hong Kong government and that her accounts were frozen until she paid the money.

¶3 Brown signed a promissory note stating that she would pay Victim $1 million when her accounts were unfrozen if Victim would send Brown the $59,500 for the VAT. Brown assured Victim that "there was no risk" and she could return her money "at any time." Victim took out a home equity loan in the amount of $59,500 and wired the money as directed by Brown.

¶4 Instead of delivering the promised $1 million, Brown delivered a letter to Victim, purportedly from the Bank of China, stating that the VAT had increased and that an additional $80,500 was needed to pay the VAT. Brown signed a new promissory note in which she committed to deliver $2 million in exchange for the total $140,000 needed to pay the VAT, and Friend loaned Brown the additional $80,500.

¶5 Once again, Victim and Friend received a letter, purportedly from the Bank of China, informing them that an additional $210,000 was needed to release the frozen funds. Brown urged Victim and Friend to provide the additional funds, but instead Victim contacted the Federal Bureau of Investigation, the Securities and Exchange Commission, and a private attorney to report that she and Friend may have been defrauded by Brown. Victim and Friend made various attempts to recover the funds from Brown but were unsuccessful.

¶6 Victim also made her own inquiries, reaching out to the Hong Kong Monetary Authority (HKMA) and government authorities in Saint Vincent and the Grenadines, as well as hiring attorneys in Hong Kong to look into the validity of Brown's claims. She learned that Hong Kong does not have a VAT and that the documentation Brown had provided from both the Bank of China and the HKMA were likely not authentic. Victim also discovered that there was no record of InterBank in Saint Vincent and the Grenadines and that the address on InterBank's letterhead-appearing on a document provided by Brown-was invalid.

¶7 The State charged Brown with three counts of securities fraud in connection with this incident, all second-degree felonies. Brown elected to represent herself in the criminal case. But before the trial court allowed Brown to proceed pro se, it conducted a full colloquy regarding Brown's education, her understanding of the charges, her understanding of the law, and her constitutional right to have counsel appointed. The court "strongly urge[d]" Brown not to represent herself, but she elected to do so anyway. The court then accepted Brown's waiver of counsel, finding that it was knowing, voluntary, and intelligent.

¶8 The State called a securities expert, Bryan Allen, to testify at trial. Allen testified that "securities laws impose a requirement on ... sellers of securities, to provide full and fair disclosure." He explained that disclosure is fraudulent if the seller fails to provide an investor with "all material facts related to the investment" or "omit[s] ... any information that would make the statements ... misleading." Allen further defined "material" as "any[thing] that a reasonable investor would find important in deciding to purchase ... or sell the security."

¶9 During his testimony, Allen provided a list of "examples of what might be considered material facts or information in the securities industry," including (1) relevant information about the seller's business or industry; (2) information about the parties involved in the transaction, including their experience and education as well as any negative information about them, such as prior convictions, judgments against them, or prior bankruptcies; (3) how the money would be used and how it would be expected to generate a return for the investor; and (4) the risks involved in the investment.

¶10 When asked about his experience, Allen acknowledged that he was not an international lawyer and was not an expert in Hong Kong law. However, he asserted that he knew "enough about international finance" to recognize if a transaction "doesn't seem quite right."

¶11 The State called Allen to the stand a second time after he had the opportunity to observe the other witnesses' testimonies at trial. At that point, Allen opined that specific statements and omissions made by Brown would be "important to the average reasonable investor," including (1) that she had earned $50 million brokering commercial real estate, (2) that she was required to pay a VAT in Hong Kong, (3) that she banked with InterBank, (4) that she had previously received information suggesting that InterBank did not exist, (5) that she had several unpaid civil judgments against her, and (6) that she asserted there was "no risk" involved in the investment.

¶12 Finally, the State submitted two exhibits that Allen had relied on in forming his opinions (collectively, the printouts): (1) a printout from the website of the Saint Vincent and the Grenadines Financial Services Authority publicly warning that InterBank "is not and has never been registered or licensed by the St. Vincent and the Grenadines Financial Services Authority" and that the Authority "is not aware of any such business housed" at the address listed on the documents provided to Victim and Friend, and (2) a printout from the Hong Kong Government website stating that it has no VAT. Brown did not object to the admission of the printouts, even when asked by the court if she did. Allen then read portions of the printouts aloud to the jury and stated that the information in them had helped him form the basis of his opinion as to whether the transactions in this case had characteristics of securities fraud.

¶13 After all the evidence was submitted, the trial court met with the prosecutor and Brown to go over each of the State's proposed jury instructions. Instructions 33, 34, and 35 concerned the definition of willfulness, how a seller's duty to investigate impacts willfulness, and the effect of ignorance of fact on a willfulness finding. When the court learned that the definition of willfulness contained in the proposed instructions was not based on the Model Utah Jury Instructions, the court questioned the prosecutor about the accuracy of the instructions and whether he was aware of any contrary case law. The prosecutor replied that his office had been using the same definition of willfulness "for years" and represented that it was consistent with Utah case law, specifically State v. Chapman , 2014 UT App 255, 338 P.3d 230, which the prosecutor stated was the most recent case on the subject. Brown affirmatively stated that she understood each instruction and did not object to any of them.

¶14 Following trial, the jury convicted Brown on all three counts, and Brown was sentenced to three concurrent terms of one to fifteen years in prison and ordered to pay restitution of $140,000. Accepting the help of appointed counsel, Brown now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Brown first argues that the jury instructions incorrectly instructed the jury regarding her duty to investigate and how that duty impacted a finding that she acted willfully. This issue was not preserved below, and Brown therefore asks us to review it under the doctrines of plain error and exceptional circumstances.

¶16 Brown also argues that she should be granted a new trial as a result of allegedly inappropriate expert testimony and the erroneous admission of the printouts. As with her challenge to the jury instructions, this issue was not raised below, and Brown asks us to review it for plain error.

¶17 In order to prevail on grounds of plain error, an appellant must show that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Dunn , 850 P.2d 1201, 1208 (Utah 1993). "Exceptional circumstances is a doctrine that applies to rare procedural anomalies. We apply this exception sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice." In re K.A.S. , 2016 UT 55, ¶ 19, 390 P.3d 278 (quotation simplified).

¶18 Finally, Brown asserts that the cumulative effect of these errors requires that she be granted a new trial. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had." Dunn , 850 P.2d at 1229 (quotation simplified).

ANALYSIS

I. Jury Instructions

¶19 On appeal, Brown challenges several of the trial court's instructions to the jury. Brown did not raise any objection to the jury instructions in the trial court but has asked us to review her challenges on appeal on grounds of plain error and exceptional circumstances.

A. Brown's Plain Error Challenge to the Jury Instructions Is Barred by the Invited Error Doctrine.

¶20 Brown asserts that the trial court incorrectly instructed the jury regarding Brown's duty to investigate and the extent to which her ignorance of fact could be claimed as a defense to securities fraud. See State v. Moore , 2015 UT App 112, 349 P.3d 797. However, Brown affirmatively represented to the trial court that she had no objection to the proposed jury instructions. "Under the doctrine of invited error, we have declined to engage in even plain error review when counsel, either by statement or act, affirmatively represented to the trial court that he or she had no objection to the proceedings." State v. Winfield , 2006 UT 4, ¶ 14, 128 P.3d 1171 (quotation simplified). While a pro se litigant "should be accorded every consideration that may reasonably be indulged," she will ultimately "be held to the same standard of knowledge and practice as any qualified member of the bar." Id. ¶ 19 (quotation simplified). And we have previously rejected the assertion that a pro se litigant should be excused from the invited error doctrine. See id. ¶¶ 18-20 (finding invited error with respect to a claim of jury bias where a pro se litigant affirmatively represented to the trial court that he found the empaneled jury acceptable and specifically rejecting the assertion that the defendant's pro se status exempted him from the invited error doctrine).

¶21 Brown asserts that she was misled by the prosecutor's affirmative representation to the trial court that the instructions correctly stated the law and that her acceptance of this representation constituted merely "affirmative acquiescence" to the instructions rather than an "affirmative representation" that they were correct. See State v. Marquina , 2018 UT App 219, ¶¶ 23-24, 437 P.3d 628, cert. granted , 440 P.3d 691 (Utah 2019). Because affirmative acquiescence has been rejected as a basis for invoking the invited error doctrine, Brown asserts that the doctrine cannot bar her plain error claims. See id. ¶ 23.

¶22 However, Brown did not merely acquiesce to the instructions, she affirmatively approved them. The trial court met with the prosecutor and Brown and went through each individual jury instruction to ensure that Brown understood and accepted them. Brown was even aware of a potential question as to the accuracy of the instructions' statement of the law due to the trial court's extensive questioning of the prosecutor regarding the instructions on willfulness. Yet rather than investigate the accuracy of the instructions or request that the court take further action to verify their accuracy, Brown explicitly affirmed her approval of each individual jury instruction. Thus, her challenge to those instructions on appeal is barred by the invited error doctrine, and we do not consider it further.

B. This Case Does Not Present the Type of Rare Circumstance That Would Justify Review Under the Exceptional Circumstances Exception to the Preservation Rule.

¶23 Brown alternatively argues that we should review her challenge to the jury instructions under the exceptional circumstances doctrine because "[t]he prosecutor's erroneous assertions about controlling case law, and the trial court's reliance on those statements," constituted a rare procedural anomaly that " 'opened the door to exceptional circumstances' review." (Quoting State v. Johnson , 2017 UT 76, ¶ 36, 416 P.3d 443.)

¶24 Utah courts have applied the exceptional circumstances doctrine "sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice." Johnson , 2017 UT 76, ¶ 29, 416 P.3d 443 (quotation simplified). It is used to reach unpreserved issues "where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so." Id. (quotation simplified). This exception is not intended to be a "catch-all category" constituting "a free-floating justification for ignoring the legitimate concerns embodied in the preservation and waiver rules." Id. ¶ 38.

¶25 We do not agree with Brown that the prosecutor's allegedly erroneous statements to the trial court concerning the accuracy of the jury instructions rise to the level of a rare procedural anomaly. Brown's argument appears to assert that one party's misinterpretation or misapplication of the law is such an anomalous occurrence that it excuses the other party's obligation to object, investigate, or otherwise advocate for a more correct interpretation or application. Misstatements of law, far from being a procedural anomaly, are an everyday occurrence in our adversarial system. Indeed, one of the main roles of a judge is to resolve differences in parties' interpretations of the law and to correct legal errors. A misstatement of law by one party, even if erroneously accepted by the trial court, does not generally work a manifest injustice on the other party such that the party is excused from complying with preservation rules.

¶26 Indeed, the anomaly in this case appears to be the fact that Brown elected to represent herself at trial rather than obtain counsel. Normally, it would fall to counsel to review the jury instructions and ensure that they accurately state the law. Had Brown been represented by counsel and had her counsel assented to the allegedly erroneous jury instructions, this case would likely be coming to us in the framework of an ineffective assistance of counsel claim. Unfortunately for Brown, as she represented herself, any error in affirming the accuracy of the instructions was her own. And as a result of that error, we are unable to review Brown's unpreserved claims regarding the accuracy of the jury instructions.

II. Expert Testimony

¶27 Brown next argues that the trial court plainly erred by permitting expert testimony from Allen that "offer[ed] an opinion on an ultimate issue to be decided by the jury" and in admitting the printouts. See State v. Davis , 2007 UT App 13, ¶ 15, 155 P.3d 909 (quotation simplified). Because Allen did not testify regarding legal conclusions and Brown invited any error in admitting the printouts, we reject Brown's arguments regarding the expert testimony.

A. Brown Has Not Established That Allen's Testimony Was Impermissible Under the Utah Rules of Evidence.

¶28 Rule 702 of the Utah Rules of Evidence permits expert testimony if it "will help the trier of fact to understand the evidence or to determine a fact in issue." Utah R. Evid. 702(a). Such testimony is not rendered inadmissible purely on the basis that it offers an opinion on an "ultimate issue" to be decided by the jury. See id. R. 704(a). However, "opinions that tell the jury what result to reach or give legal conclusions [are] impermissible." Davis , 2007 UT App 13, ¶ 15, 155 P.3d 909 (quotation simplified). While there is "no bright line between responses that embrace an ultimate issue and those that provide an impermissible legal conclusion," State v. Tenney , 913 P.2d 750, 756 (Utah Ct. App. 1996), testimony is likely to constitute an impermissible legal conclusion if it is framed in a way that is unhelpful to the factfinder; "blur[s] the separate and distinct responsibilities of the judge, jury, and witness"; or creates a "danger that a juror may turn to the witness's legal conclusion rather than the judge for guidance on the applicable law," Davis , 2007 UT App 13, ¶ 15, 155 P.3d 909 (quotations simplified).

¶29 In State v. Tenney , 913 P.2d 750 (Utah Ct. App. 1996), this court determined that it was plain error for a trial court in a securities case to permit expert testimony that repeatedly and explicitly stated that various actions and omissions on the part of the defendant violated Utah law. Id. at 756. The court determined that "those portions of the expert witnesses' testimony to which defendant objects quite clearly state legal conclusions because the witnesses tie their opinions to the requirements of Utah law." Id.

¶30 On the other hand, in State v. Larsen , 865 P.2d 1355 (Utah 1993), our supreme court examined whether an expert's "occasional use of the term 'material' " during his testimony in a securities case constituted permissible testimony on an ultimate issue or an impermissible legal conclusion. Id. at 1361. The court determined that the trial court acted within its discretion in admitting testimony regarding what actions and omissions "could have been important or significant to an investor" as "helpful to the jury," id. , and that the expert's "limited use" of the word "material," "under the circumstances, does not mandate the conclusion that he was improperly instructing the jury on the law," id. at 1362. Rather, the expert's statements were permissible ultimate issue testimony because the word "material" was used in its ordinary meaning to signify "something that an individual would want to know in making an important decision" rather than in its legal meaning under Utah law "defining what information must legally be disclosed." Id. The court explained that materiality was "at least on one level, a factual issue to be determined by the jury" rather than a legal conclusion. Id. at 1363. Because rule 704 permits expert testimony "regarding the ultimate resolution of that disputed issue as long as that testimony is otherwise admissible under the rules of evidence," the supreme court determined that the trial court did not err in admitting the expert testimony. See id.

¶31 The expert testimony in this case is much more similar to the testimony in Larsen than the testimony in Tenney . Allen made one general reference to "[t]he securities laws," stating that they "impose a requirement on issuers or sellers of securities, to provide full and fair disclosure." He then testified to how fraud is defined "in the [securities] industry," stating that sellers of securities need to "make sure [to] provide [investors] all material facts related to the investment," in other words, anything "that a reasonable investor would find important in deciding to purchase ... or sell the security." Finally, he testified as to what types of information might be considered material and which specific facts in this case he would consider to be material to an investor.

¶32 Allen's one general reference to the disclosure requirements of "securities laws" could not reasonably be construed as a legal conclusion, because the information provided was general and not tied to a specific law. Further, unlike the experts in Tenney , who repeatedly referenced "Utah law" and "the Act" specifically, Allen's general reference to "securities laws" occurred only one time in the course of his testimony. Similarly, his discussion of "fraud" and "materiality" was tied explicitly to the standard in the securities industry rather than represented as a legal definition of an element of a specific criminal statute. And as with the expert in Larsen , Allen's "occasional use of the term 'material' " during his testimony, see id. at 1361, was used in its ordinary meaning rather than its legal meaning and was helpful to the jury's determination of a factual matter at issue. Allen did not "testify that [Brown] was guilty" or that, "as a matter of law, the facts satisfied the legal standard of materiality." See id. at 1361 n.10. Thus, Brown cannot establish that it was error for the court to permit Allen to testify as he did, let alone plain error.

B. Any Error in the Admission of the Printouts Was Invited.

¶33 Brown also asserts that it was plain error for the court to admit the two printouts because they were "outside [Allen's] area of expertise, irrelevant, and unhelpful" and therefore violated rules 403 and 703 of the Utah Rules of Evidence.

¶34 However, as with the jury instructions, Brown affirmatively approved the admission of both exhibits. She even used the printouts in her cross-examination of Allen. Thus, any error was invited. See State v. Winfield , 2006 UT 4, ¶ 14, 128 P.3d 1171.

CONCLUSION

¶35 Brown invited any error in the jury instructions by affirmatively approving them, and the circumstances of this case do not justify review of the jury instructions under the exceptional circumstances exception to the preservation rule. Additionally, Allen's testimony did not make impermissible legal conclusions, and its admission was therefore not erroneous. Finally, any error in admitting the printouts was invited. Accordingly, we affirm Brown's convictions.

      As noted above, Brown elected to represent herself despite being "strongly urge[d]" by the court not to do so.

      Because we have rejected each of Brown's claims of error, we also reject her cumulative error argument.


author: ORME, Judge: POHLMAN, Judge (dissenting):

text:
    LaMar DREW and LaRene Drew, Appellants, v. PACIFIC LIFE INSURANCE COMPANY, Appellee.
    No. 20160314-CA
    Court of Appeals of Utah.
    Filed July 18, 2019
    Opinion
   ORME, Judge:

¶1 LaMar and LaRene Drew appeal the district court's grant of summary judgment in favor of Pacific Life Insurance Company (Pacific) and the court's denial of the Drews' cross-motion for partial summary judgment on the issue of vicarious liability. The Drews contend that the district court erroneously determined that Pacific was not vicariously liable for the unlawful misrepresentations made by one of its appointed insurance producers, R. Scott National, Inc. (RSN). We reverse the summary judgment in favor of Pacific, and we remand for the entry of partial summary judgment in favor of the Drews.

JURISDICTION

¶2 Before turning to the merits, we pause briefly to consider our jurisdiction. The order appealed from was interlocutory in nature but was certified as final in contemplation of rule 54(b) of the Utah Rules of Civil Procedure. The certification does not meet the requirements laid out in a recent line of opinions from the Utah Supreme Court. See EnerVest, Ltd. v. Utah State Eng'r , 2019 UT 2, ¶¶ 16-20, 435 P.3d 209 (amended opinion); Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB , 2018 UT 56, ¶¶ 15-17, 23-28, 428 P.3d 1133 (amended opinion); First Nat'l Bank v. Palmer , 2018 UT 43, ¶¶ 13-14, 427 P.3d 1169. Ordinarily in such a case, we dismiss for lack of jurisdiction. See, e.g. , Hayes v. Intermountain GeoEnvironmental Services Inc. , 2018 UT App 223, ¶ 1, 437 P.3d 650. But these cases all recognize that we "have the discretion to treat an improper rule 54(b) certification as a request for leave to take an interlocutory appeal under rule 5(a) of the Utah Rules of Appellate Procedure." Id. ¶ 5 n.2. Accord EnerVest , 2019 UT 2, ¶ 20, 435 P.3d 209 ; Copper Hills , 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133 ; Palmer , 2018 UT 43, ¶ 14 n.4, 427 P.3d 1169. This discretion to treat an appeal taken from a non-final order as though it were an authorized interlocutory appeal is exercised "judiciously and sparingly." Copper Hills , 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133. But it is exercised from time to time. See, e.g. , Hawkins ex rel. Hawkins v. Peart , 2001 UT 94, ¶ 3 n.2, 37 P.3d 1062 (flawed rule 54(b) certification); Chaparro v. Torero , 2018 UT App 181, ¶¶ 28-31, 436 P.3d 339 (non-final order due to an outstanding attorney fee issue). Cf . EnerVest , 2019 UT 2, ¶ 20, 435 P.3d 209 (suggesting that discretion to treat a flawed rule 54(b) certification as an authorized interlocutory appeal might have been exercised if appellant had standing on appeal).

¶3 We believe that the considerations that have prompted Utah's appellate courts in prior cases to exercise their discretion to treat a flawed rule 54(b) certification as, instead, a granted petition for interlocutory appeal, or to decline to exercise that discretion, are of only limited relevance in a subsequent case. Our resistance to a formulaic approach is inherent in the very concept of discretion. See Warren v. United States Parole Comm'n , 659 F.2d 183, 196 (D.C. Cir. 1981) ("[T]he essence of discretion is the absence of fixed rules."). See also United States v. Richards , 659 F.3d 527, 551 (6th Cir. 2011) ("It is the essence of discretion that it may properly be exercised in different ways and likewise appear differently to different eyes.") (quotation simplified); Walen v. United States , 246 F. Supp. 3d 449, 462 (D.D.C. 2017) ("Flexibility in the face of competing priorities ... is the essence of discretion.") (quotation simplified).

¶4 We determine that this case is appropriate for the exercise of our discretion to treat the flawed rule 54(b) certification as an interlocutory appeal pursuant to rule 5(a) of our appellate rules. Having done so, we now turn to a resolution of the appeal on its merits.

BACKGROUND

¶5 In 2009, Pacific appointed RSN as its insurance producer and authorized it to "solicit and procure applications for [Pacific's] life insurance and annuity products." The agreement, however, prohibited RSN from soliciting insurance products that did not meet the "customer's insurance needs and financial objectives." At the time the parties executed the agreement, Pacific had appointed other companies and individuals to sell its insurance products, and RSN sold annuities and insurance policies on behalf of numerous companies and individuals.

¶6 LaMar and LaRene Drew are retired senior citizens who, after seeing an advertisement, sought out one of RSN's employees as a financial advisor. At the outset, the employee assisted the Drews in the acquisition and sale of multiple annuities. Later on, and with the assistance of another RSN employee, the initial employee informed the Drews that, even though they were approaching eighty, they could purchase a life insurance policy with a high death benefit and resell it on the secondary market for a large profit. Based on this information, the Drews purchased two $1.5 million life insurance policies, the first from PHL Variable Insurance Company (PHL) and the second from Pacific. To fund the premiums on the policies, the RSN employees advised the Drews to obtain a reverse mortgage on their home. The Drews followed this advice.

¶7 RSN was unable to sell the policies on the secondary market. After the Drews paid more than $300,000 in premiums and lost much of the equity in their home, the policies lapsed when the Drews could no longer afford the premiums. In total, they lost three-fourths of their life savings, and interest on their reverse mortgage is accruing at a rate of approximately $1,000 per month.

¶8 The Drews sued Pacific, claiming that it was vicariously liable for the tortious conduct of RSN's employees, whom the Drews contended were acting as Pacific's agents. Pacific and the Drews submitted cross-motions for summary judgment, and the district court granted summary judgment to Pacific. Although the court did not address whether an agency relationship existed between Pacific and RSN, it concluded that, even assuming such a relationship existed, RSN's employees were not acting within the scope of their authority as agents of Pacific. The Drews appeal.

ISSUE AND STANDARD OF REVIEW

¶9 The Drews contend that the district court erroneously granted summary judgment in favor of Pacific and that judgment should have been entered in their favor. "We review a district court's decision to grant summary judgment for correctness." Bodell Constr. Co. v. Robbins , 2009 UT 52, ¶ 16, 215 P.3d 933.

ANALYSIS

¶10 On appeal, the Drews argue that the district court misapplied agency law when it concluded that Pacific was not vicariously liable for the misrepresentations made by RSN's employees. "Under principles of vicarious liability, a principal is held responsible for the tortious acts of an agent acting within the scope of the agent's authority." Wardley Better Homes & Gardens v. Cannon , 2002 UT 99, ¶ 19, 61 P.3d 1009. Thus, in order to determine whether Pacific is vicariously liable for the misrepresentations of RSN's employees, we must answer two questions. First, we must decide whether an agency relationship existed between Pacific and RSN. If we conclude that an agency relationship did exist, we must then determine whether RSN's employees acted within the scope of their authority in their dealings with the Drews.

I. Agency Relationship

¶11 Given its conclusion on the scope of RSN's authority, the district court deemed it unnecessary to determine whether an agency relationship existed between Pacific and RSN. The parties disagree about whether such a relationship existed.

¶12 The Insurance Code suggests that the existence of an agency relationship turns on whether an insurance salesperson is a "producer for the insurer" or a "producer for the insured." See Utah Code Ann. § 31A-1-301(88) (LexisNexis 2010). If a producer is "compensated directly or indirectly by an insurer for selling, soliciting, or negotiating an insurance product of that insurer," that producer is a producer for the insurer and is therefore its agent. See id. § 31A-1-301(88)(b)(i). In contrast, if a producer is "compensated directly and only by an insurance customer," that producer is a producer for the insured and is not an agent of the insurance company. See id. § 31A-1-301(88)(b)(ii)(A).

¶13 It is clear from the record that the RSN employees received compensation directly from Pacific. Thus, under the plain terms of the Insurance Code, RSN's employees were producers for Pacific and were therefore acting as its agents.

¶14 Nevertheless, Pacific argues that RSN's employees were independent insurance brokers rather than its agents. In support of this argument, Pacific relies on Vina v. Jefferson Insurance Co. , 761 P.2d 581 (Utah Ct. App. 1988), in which this court analyzed whether an insurance salesperson was an agent or a broker. See id. at 584-86. In Vina , we articulated some relevant considerations, including the discretion of the salesperson, the salesperson's role as an intermediary between the insurance company and the prospective insured, and the salesperson's ability to bind the insurance company. Id.

¶15 Importantly, Vina predates the current statutory regime, see supra ¶ 12 n.5, and we qualified our decision in that case by stating that it was made "under the controlling statutes" in effect at the time, 761 P.2d at 585. The Insurance Code has since streamlined the agency determination in the insurance context, allowing courts to focus on how the insurance salesperson is compensated. See Utah Code Ann. § 31A-1-301(88). Thus, given Vina 's reliance on an outdated statute and the plain language of the now-controlling statute, the analysis in our previous decision is of limited utility at best. In any event, Vina is readily distinguishable from the case before us because the salesperson in Vina "was not specifically authorized to solicit insurance or otherwise act on behalf of" the insurance company. Vina , 761 P.2d at 584. Here, Pacific specifically appointed RSN as its producer and authorized RSN to solicit and procure insurance applications on its behalf.

¶16 Pacific contends that this interpretation of the Insurance Code will create a "per se agency relationship ..., thereby imposing strict liability on the insurer." We disagree. While we recognize that the Insurance Code "does not supplant ordinary legal principles of agency," see id. at 585, we do not read the pertinent provisions as inconsistent with general agency law.

¶17 The Insurance Code provides as follows:

There is a rebuttable presumption that every insurer is bound by any act of its appointed licensee performed in this state that is within the scope of the appointed licensee's actual (express or implied) or apparent authority , until the insurer has canceled the appointed licensee's appointment and has made reasonable efforts to recover from the appointed licensee its policy forms and other indicia of agency.

Utah Code Ann. § 31A-23a-405(2) (emphasis added). The Insurance Code simplified but did not alter the standard of liability applicable to agency relationships in the insurance context. See Zions Gate R.V. Resort, LLC v. Oliphant , 2014 UT App 98, ¶ 6, 326 P.3d 118 (stating that a principal is liable if its agent acts pursuant to its actual or apparent authority). Under both the common law and the revised statute, principals are liable for the tortious acts of their agents when the agents act within the scope of their authority. Thus, the Insurance Code's outline of agency relationships in the context of insurance producers does not, as Pacific suggests, impose "strict liability on the insurer for all of the acts of the appointed individual or entity."

II. Scope of Authority

¶18 Having concluded that RSN and its employees were agents of Pacific, we must now analyze the scope of RSN's authority and whether it acted within that authority in misrepresenting the advisability of certain Pacific life insurance policies for the Drews. "Under principles of vicarious liability, a principal is held responsible for the tortious acts of an agent acting within the scope of the agent's authority." Wardley Better Homes & Gardens v. Cannon , 2002 UT 99, ¶ 19, 61 P.3d 1009.

¶19 Pacific first argues that RSN's employees acted outside the scope of their authority because the contract limited RSN to soliciting and procuring applications; the contract did not authorize RSN to bind Pacific to any contractual agreement. In so arguing, Pacific misapprehends the extent of agency liability. Agents are entitled 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." Zions First Nat'l Bank v. Clark Clinic Corp. , 762 P.2d 1090, 1094 (Utah 1988). Although RSN's employees may have lacked the authority to create a binding contract on behalf of Pacific, they could, in the course of solicitation, "induce the purchase of a policy ... by misrepresenting the nature of a product or policy term." See Dias v. Nationwide Life Ins. Co. , 700 F. Supp. 2d 1204, 1221 (E.D. Cal. 2010). Thus, the proper inquiry is not limited to whether RSN could legally bind Pacific but is more appropriately characterized as the broader question of whether RSN's employees were acting within the scope of their authority when they misrepresented to the Drews the advisability of their acquiring Pacific's life insurance policies.

¶20 Pacific also directs our attention to another provision in its contract with RSN that expressly prohibited RSN from soliciting and procuring insurance applications for products that did not "meet the customer's insurance needs and financial objectives." Thus, citing Bodell Construction Co. v. Stewart Title Guaranty Co. , 945 P.2d 119 (Utah Ct. App. 1997), Pacific argues that it should not be held liable for RSN's solicitations in this case because, as Pacific sees it, an agent acts outside of his or her authority "where the authority to perform the specific task has been expressly limited." In Bodell , a principal limited its agent to issuing title insurance. Id. at 122. The agent, however, also took it upon itself to provide escrow services, despite having signed a contract prohibiting it from engaging in "escrow business." Id. Thus, because we concluded that the issuance of title insurance did not necessarily require the agent to perform escrow functions, and the insurer expressly prohibited it from acting as its agent in "escrow business," we held that the agent acted outside the scope of its authority in providing escrow services. Id. at 124-25.

¶21 Bodell is factually distinguishable from this case. In Bodell , the agent was performing a collateral function distinct from the activities it was authorized to perform, namely, the performance of escrow services. Id. Here, RSN's employees were authorized to solicit life insurance policies, and that is precisely what they did-albeit in an unprofessional, if not tortious, manner. See Restatement (Second) of Agency § 230 (Am. Law Inst. 1958) ("An act, although forbidden, or done in a forbidden manner, may be within the scope of employment."). Indeed, a contrary rule to that stated in the Restatement section just quoted would essentially enable principals to eliminate vicarious liability through adroitly crafted contractual provisions.

¶22 The United States Supreme Court has stated that "when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies." Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 756, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). See also Restatement (Third) of Agency § 7.07 cmt. d (Am. Law Inst. 2006) ("[W]hen an employee's job duties include making statements to prospective customers to induce them to buy from the employer, intentional misrepresentations made by the employee are within the scope of employment unless circumstances establish that the employee has departed from it."). Courts that have considered the issue in the context of the sale of insurance products have routinely held insurance companies vicariously liable for the fraudulent misrepresentations made by their agents. See, e.g. , Weyand v. Union Central Life Ins. Co. , No. 30-2013-00633423, 2016 WL 750433, at *7 (Cal. Ct. App. Feb. 26, 2016) ; Pan-American Life Ins. Co. v. Roethke , 30 S.W.3d 128, 132-33 (Ky. 2000) ; Chicago Title Ins. Co. v. Washington State Office of Ins. Comm'r , 178 Wash.2d 120, 309 P.3d 372, 381-83 (2013). See also Cook v. John Hancock Life Ins. Co. , No. 7:12-cv-00455, 2015 WL 178108, at *9 (W.D. Va. Jan. 14, 2015) (denying a motion to dismiss because the misrepresentations about a life insurance policy "were arguably within the scope of [the agent's] actual or apparent authority").

¶23 Weyand bears a strong resemblance to the facts of this case. In Weyand , an insurance agent convinced a plaintiff to purchase $10 million worth of life insurance policies for resale on the secondary market, claiming that such a tactic was a "no-risk investment opportunity." 2016 WL 750433, at *1. As was the case with the Drews, the plaintiff in Weyand was unable to resell the policies and they lapsed after the plaintiff could no longer afford to pay the steep premiums. Id. The insurance company contended that it could not be held liable because it expressly prohibited its agent from selling policies to insureds who intended to resell them on the secondary market. Id. at *4. The California Court of Appeal disagreed, reasoning that the "ordinary scope" of the acts entrusted to the agent "included not only selling policies, but also describing the policies and making representations to potential purchasers about the policies' coverage, costs, and other characteristics." Id. at *5. The court then noted that the ability to resell a policy on the secondary market "is a characteristic of the policy an insurer reasonably could expect an agent to discuss with a potential purchaser." Id.

¶24 We agree that making representations about a policy, including the ability to resell it, is consistent with the general work with which RSN was entrusted, that is, solicitation of life insurance policies. Further, RSN's actions inarguably served Pacific's interest. RSN's representations resulted in the issuance of a Pacific policy and in the Drews making premium payments directly to Pacific. Accordingly, RSN's employees were acting within the scope of their authority. See M.J. v. Wisan , 2016 UT 13, ¶ 54, 371 P.3d 21.

¶25 We believe our conclusion is fully in accord with well-established principles of agency law. Insurance and its corresponding markets are extremely complicated, and insurance producers are often the only person or entity that consumers deal with when making decisions about their insurance needs. It makes little sense to allow insurance companies to grant broad solicitation authority to their agents-who inevitably make many representations to prospective insureds in hopes of closing a deal-and accept the benefits therefrom without holding them accountable for the damages resulting from those very same representations. See Restatement (Second) of Agency § 8A cmt. a (Am. Law Inst. 1958) ("It would be unfair for an enterprise to have the benefit of the work of its agents without making it responsible to some extent for their excesses and failures to act carefully.").

CONCLUSION

¶26 The district court erroneously granted summary judgment in favor of Pacific. An agency relationship existed between Pacific and RSN, and RSN's employees were acting within the scope of their authority when they made misrepresentations regarding life insurance policies to the Drews. We therefore reverse the decision of the district court and remand so that it may enter partial summary judgment in favor of the Drews on the issue of vicarious liability and then proceed with trial or such other proceedings as may now be appropriate.

POHLMAN, Judge (dissenting):

¶27 I respectfully dissent from this decision because I regrettably conclude that we lack jurisdiction to consider this appeal.

¶28 As the majority correctly notes, the rule 54(b) certification entered in this case is flawed and thus does not properly invoke our jurisdiction. And while I agree that we have discretion to treat certain rule 54(b) certifications as petitions for interlocutory appeal, Utah R. App. P. 5(a), I do not agree that this case warrants this particular treatment. Converting a rule 54(b) certification into an interlocutory appeal "is an allowance that we should wield judiciously and sparingly," and I think the better course of action would be to remand the case to the district court where the parties would have the opportunity to seek a compliant certification of the relevant orders. See Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB , 2018 UT 56, ¶ 29 n.15, 428 P.3d 1133.

      When reviewing a district court's grant of summary judgment, "we review the facts in a light most favorable to the losing party" and "recite the facts accordingly." Bodell Constr. Co. v. Stewart Title Guar. Co. , 945 P.2d 119, 121 (Utah Ct. App. 1997) (quotation simplified).

      Pacific sells its insurance products in all fifty states, and as of December 2014, it had appointed 358 companies and 2,182 individuals to sell its insurance products on its behalf.

      At the time of the transaction, Utah law clearly prohibited this sales tactic. See Utah Code Ann. § 31A-36-111(5) (LexisNexis 2010) ("A person may not issue, solicit, or market the purchase of a policy for the primary purpose of or with a primary emphasis on settling the policy."); id. § 31A-36-102(8) (defining life settlement as "assigning, selling, transferring, devising, releasing, or bequeathing" the death benefit of a policy).

      One might ask how Pacific could possibly justify issuing such a policy in addition to the $1.5 million life insurance policy the Drews had with PHL. The record makes clear that the Drews' application to Pacific indicated that Pacific's policy was intended to replace the PHL policy rather than supplement it. Additionally, the application queried whether the Drews planned to transfer the policy "as a repayment of any premium financing debt," to which an RSN employee answered "no." Thus, on paper, Pacific had no way of knowing that the Drews acquired the policy solely for investment purposes, although their ages would appear to suggest that possibility.

      We cite the provision in effect when the Drews were solicited and bought their policies. But this provision, with minimal variations in numbering and phraseology, has been in effect continuously since April 30, 2001. See Utah Code Ann. § 31A-1-301 (LexisNexis 2003) (amendment notes). See also id. § 31A-1-301(83) ; id. § 31A-1-301(85) (2005) ; id. § 31A-1-301(88) (2010) ; id. § 31A-1-301(94) (2017) ; id. § 31A-1-301(95) (Supp. 2018).

      Pacific notes that RSN's employees knew that the Drews did not require another $1.5 million life insurance policy in addition to the $1.5 million policy they already had with PHL. Indeed, from the standpoint of the typical reason for acquiring life insurance-providing for dependents upon the unexpected death of the insured-the Drews' need for life insurance in any amount is at least questionable. Of course, this would have been as obvious to Pacific, who wrote the policy, as it was to RSN, who solicited the policy.

      For example, in Carter v. Bessey , 97 Utah 427, 93 P.2d 490 (Utah 1939), a company prohibited its deliverymen from using the delivery truck for personal reasons. Id. at 491. One of the company's agents completed his delivery route, drove the truck to purchase a Christmas tree for his family, and struck a pedestrian. Id. The Utah Supreme Court held that the company's prohibition did not excuse the company from liability. Id. at 493. The court noted that the "doctrine of respondeat superior exists irrespective of contract" and that principals may still be liable even when agents act "contrary to the express instructions of the [principal]." Id. And rightly so. If we followed Pacific's argument to its logical conclusion, trucking companies that expressly forbid drunk, drowsy, or negligent driving could avoid liability for the torts of their agents by contractually prohibiting driving in such a manner.

      The Insurance Code defines soliciting as "attempting to sell insurance" or "asking or urging a person to apply for ... a particular kind of insurance ... from a particular insurance company." Utah Code Ann. § 31A-23a-102(13) (LexisNexis 2010). The representations made by RSN's employees fall within the ambit of this definition.

      In doing so, we recognize that the scope of an agent's authority is ordinarily a question of fact. See Christensen v. Swenson , 874 P.2d 125, 127 (Utah 1994). But because RSN's employees were clearly acting within the scope of their authority, given the record before us and the concession of both sides that the material facts are not in dispute, we decide the issue as a matter of law. See id. ; Birkner v. Salt Lake County , 771 P.2d 1053, 1057 (Utah 1989).