author: HOWE, Chief Justice.

text:
    2002 UT 37
    STATE of Utah, Plaintiff and Respondent, v. Valden CRAM, Defendant and Petitioner.
    No. 20010046.
    Supreme Court of Utah.
    April 1, 2002.
    Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    Aaron J. Prisbrey, St. George, for defendant.
   HOWE, Chief Justice.

INTRODUCTION

11 We granted certiorari to review an unpublished court of appeals decision affirming the trial court's denial of defendant Val-den Cram's motion to dismiss a criminal information on the ground of double jeopardy.

BACKGROUND

T2 Cram was charged with four counts of tax evasion, a second degree felony, in violation of sections 76-8-1101(1)(c) and 59-1-401(9)(c) of the Utah Code. One count was dismissed before trial. The remaining three counts were tried before a jury. On the second day of trial, after hearing testimony, the jury was excused to deliberate at 6:47 pm. At 9:09 p.m. the bailiff reported to the court that the jurors "indicated they were unable to reach a decision." The court then discussed with counsel the jurors' indecision and whether to give an Allen, or jury deadlock, instruction. Defense counsel objected to the giving of the Allen instruction and moved for a mistrial on the basis that the jury had indicated that it could not reach a verdict. The court denied the motion for mistrial, but instead recalled the jury, gave an Allen instruction, and sent it back to deliberate further. Later, at about 9:50 p.m., the jury sent two questions to the court. The court conferred with both counsel on the record and sent responses to the jury. At approximately 10:15 p.m., the bailiff again reported that the jury was unable to reach a unanimous verdict. The court reconvened with the jury present and engaged in the following discussion with the foreperson:

THE COURT: All right. And the report I've received through the bailiff is that the jury has been unable to reach a unanimous decision. Is that correct?
JUROR HOLT: Yes.
THE- COURT: All right.: Do you think that any additional period of time for deliberation would make any difference?
JUROR HOLT: No.
THE COURT: All right." All right. And do you have any question that you want to ask about that? There have been a couple of notes passed and some response given, although perhaps not as much response as you had hoped. Any question or- _
JUROR HOLT: No. (Inaudible).
THE COURT: All right. Are those questions that you have not sent out to me so far?
JUROR HOLT: Well, yes and no.
THE COURT: Yes and no. Okay. All right. I guess I need to make sure I understand. then. If there were a couple of questions answered, do you think you could reach a verdict or it would be at least worth deliberating longer or do you think that would just confirm the positions or decisions that the jurors have reached?
JUROR HOLT: 'Well, speaking for myself, it would probably (inaudible).
THE COURT: Okay. All right.
Counsel, is there any record that you would like to make at this point?
[DEFENSE COUNSEL]: I don't have anything, your Honor.
[PROSECUTOR]: No, your Honor.
THE COURT: All right. All right.
Well, ladies and gentlemen of the jury, I'm not going to require you to stay any longer. I am going to release you from your duties here and excuse you to go home.... I'm going to declare that there is a mistrial, that the jury is not able to reach a verdict, and I'll exeuse you and release you from your admonition.... Counsel, is there anything else for the record this evening?
[DEFENSE COUNSEL]: No your Hon- or.

13 Subsequently, the trial court scheduled a second jury trial. Cram moved to dismiss the information, citing his Fifth Amendment right against being twice in jeopardy, and argued that the trial court's declaration of mistrial was not supported by his consent or by legal necessity. The trial court denied the motion to dismiss, finding that there was a proper termination of prosecution, that the jury was unable to reach a verdict, and that a proper record was made at the time the mistrial was declared. |

14 Cram appealed. The court of appeals, in an unpublished unanimous memorandum decision, affirmed the trial court. The court of appeals refused to address Cram's claims because it (1) concluded that he had not objected to the trial court's decision to declare a mistrial and thus had failed to preserve his objections, and (2) found that Cram did not argue on appeal any of the exceptions to the preservation rule, which include plain error, exceptional cireumstances, or ineffective assistance of counsel. See State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Dunn, 850 P.2d 1201, 1225-26 (Utah 1993). The court of appeals then stated that were it to review the merits of the case, the outcome would not change. Relying on the standards we set out in State v. Ambrose, 598 P.2d 354 (Utah 1979), the court of appeals decided that the trial court properly explained its decision, discussed possible curative alternatives to a mistrial, supported its decision with findings of fact, and did not declare the mistrial so abruptly that Cram's counsel had no opportunity to object.

T5 Cram then petitioned for, and this court granted, a writ of certiorari.

STANDARD OF REVIEW

16 On certiorari, we review the decision of the court of appeals for correctness. "The correctness of the court of appeals' decision turns on whether that court accurately reviewed the trial court's decision under the appropriate standard of review." State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242. The court of appeals properly focused on whether the trial court abused its discretion in the declaration of a mistrial. See Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), Ambrose, 598 P.2d at 358-60.

ANALYSIS

T7 Cram urges us to reverse the court of appeals and grant his motion to dismiss. He argues that the court of appeals erred by ruling (1) that he failed to preserve his objection to the mistrial for appeal and (2) that even if his objection was preserved, there is no double jeopardy violation because the mistrial was based on legal necessity. We address each argument in turn.

T8 An accused has a constitutional right to be free from being put twice in jeopardy for the same offense. "The guarantee [against double jeopardy] assures that, with certain exceptions, an individual will not be forced to endure the strain, embarrassment, anxiety and expense of a [second] criminal trial." Ambrose, 598 P.2d at 357. "It is well established in Utah that jeopardy attaches when an accused is put on trial ... and a jury has been sworn and impaneled." Id. at 358. Normally, the State may not prosecute a defendant for the same offense more than once. However, "retrial is not automatically barred when a criminal proceeding is terminated without finally resoly-ing the merits of the charges against the accused." Arizona, 434 U.S. at 505, 98 S.Ct. 824. Rather, courts must balance the defendant's right to have his trial concluded by a particular tribunal with the "public's interest in fair trials designed to end in just judgments." Id. at 516, 98 S.Ct. 824. Section 76-1-403 of the Utah Code does not bar reprosecution if the termination of prosecution was proper. Section 76-1-403(4) states that proper terminations include situations where the defendant consents to the termination, he waives his right to object to the termination, or the court finds that the termination is necessary.

I. PRESERVATION

19 We noted in State v. Holgate that, "[als a general rule, claims not raised before the trial court may not be raised on appeal." 2000 UT 74, ¶ 11, 10 P.3d 346. We held further "that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional cireumstances' exist or 'plain error' occurred." Id. at 350. In State v. Emmett, 839 P.2d 781, 783-84 (Utah 1992), we wrote that "our case law establishes that the doctrine of waiver has application if defendants fail to raise claims at the appropriate time at the trial level, so the judge has an opportunity to rule on the issue." Other cases note that in order to preserve a claim or an objection for appellate review, the defendant must raise a timely or contemporaneous claim or objection. See State v. Dibello, 780 P.2d 1221, 1226-27 (Utah 1989) (explaining that issue not properly preserved for appeal where defense fails to make objection to remarks at trial); State v. Shickles, 760 P.2d 291, 301 (Utah 1988) (holding that objection must be both timely and specific); State v. Tillman, 750 P.2d 546, 551 (Utah 1987) (holding that contemporaneous objection must be made to preserve a claimed error for appeal); State v. Hall, 671 P.2d 201, 202 (Utah 1983) (stating that dis-positive circumstance necessary to preserve claimed error for appellate review is timely objection at trial).

1 10 The two policy reasons for the preservation rule are, first, to give the trial court an opportunity to "address the claimed error, and if appropriate, correct it," and second, that "a defendant should not be permitted to forego making an objection with the strategy of enhancling] the defendant's chances of acquittal and then, if that strategy fails, ... claim[ing] on appeal that the Court should reverse." Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citations omitted). As we said in State v. Brown, "defendants are thus not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal." 948 P.2d 337, 343 (Utah 1997).

T11 Cram argues that he was not obligated to raise his objection to the dis-. missal of the jury and declaration of mistrial at the time of trial. Instead, he alerted the court of his objection to the mistrial and sought a dismissal of the case on double jeopardy grounds at the scheduling conference for the retrial. This was not a timely objection that would have allowed the trial court the opportunity to "correct the errors if appropriate." Further, this delay would allow Cram the benefit both of not objecting during trial, and of objecting on appeal. Allowing this delay would be contrary to the policy of the preservation rule.

112 Relying on Ambrose, Cram argues that he did not waive his objection because of his "mere silence" when the court declared a mistrial. In Ambrose, we held that we would "not presume that mere silence in this situation can be equated to waiver of such an important constitutional right." 598 P.2d at 360 (emphasis added). In that case, "the court acted so abruptly in discharging the jury that defendant's counsel had no opportunity to object. The double jeopardy protection is not so ephemeral that it vanishes if an accused does not anticipate and object to every unexpected action on the part of the court." Id. at 360-61. The present case is distinguishable from Ambrose. Cram's counsel had two opportunities to object for the record. The trial court gave counsel an opportunity to object before and after the court declared a mistrial. The trial court did not act so abruptly that a declaration of mistrial was unexpected. By stating that he had nothing for the record at both of these instances, defense counsel waived any objection to the court's declaration of mistrial.

II, LEGAL NECESSITY

1 13 Because we decide this case based on the preservation rule, we need not address whether there was legal necessfcy for 'the mistrial.

CONCLUSION

4 14 Because Cram did not make a timely objection to the trial court's declaration of the mistrial, and thus did not preserve his objection for appeal, double jeopardy does not bar Cram's retrial or potential conviction. The decision of the court of appeals is affirmed.

1] 15 Associate Chief Justice RUSSON, Justice DURHAM, Justice DURRANT, and Justice WILKINS concur in Chief Justice HOWE's opinion.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). An Allen instruction is a subsequent instruction given to a deadlocked jury to encourage the jurors to reevaluate their positions and make further attempts at reaching an agreement on the verdict.


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge.

license: Public Domain

text:
    2002 UT App 105
    Eva M. CAFFERTY, et al., Defendants and Appellants, v. Dwight HUGHES, et al., Plaintiffs and Appellees.
    No. 20000866-CA.
    Court of Appeals of Utah.
    April 11, 2002.
    Rehearing Denied May 2, 2002.

      Charles M. Bennett, Blackburn & Stoll LC, Salt Lake City, for Appellants.
    Evan A. Schmutz and Lance N. Long, Hill Johnson & Schmutz, Provo, for Appellees.
    Before Judges BILLINGS, GREENWOOD, and ORME.
   OPINION

BILLINGS, Associate Presiding Judge.

1 1 This case involves a dispute among five siblings over the distribution of a trust created by their parents. The trial court ordered an equal distribution of the trust, subject to various offsets. This appeal and cross appeal followed. We affirm.

BACKGROUND

12 In 1974, McClure Hughes and his wife Helen Hughes, the parents of the litigants in this action, created a trust (1974 Trust). The 1974 Trust agreement required that upon the death of either Helen or McClure, the trust estate would divide into two separate trusts, designated as the "Marital Trust" and the "Family Trust." The Marital Trust remained revocable and subject to amendment by the surviving trustor during his or her lifetime. The Family Trust became an irrevocable trust and not subject to amendment after either Helen's or McClure's death.

T3 The 1974 Trust also designated who would act as trustees through specified priorities. According to its terms, McClure and Helen were, as a first priority, trustees together. After either of them died, the see-ond priority. trustees would consist of the survivor together with their son Joseph M. Hughes (Joe) and son-in-law Robert Clifford Bennett (Robert), who is the husband of daughter Linnea Hughes Bennett (Linnea). The next priority of trustees would consist of all five children acting by majority vote.

T4 McClure and Helen acted as joint trustees until Helen's death in September of 1978. Her death invoked the second priority of trustees, meaning that Robert, Joe, and McClure were then authorized to act as trustees.

1 5 In February of 1979, McClure married Leora T. Hughes. In October of 1979, at McClure's request, Robert formally resigned as trustee. Also at McClure's request, McClure's daughter Eva M. Cafferty (Rikki) began to serve as a third "trustee" in the place of Robert." In a document entitled "Trustee Resignation" Robert resigned as trustee and purported to "delegate and assign McClure Hughes and Joseph McClure Hughes and [Rikki] Cafferty as successor trustees."

T 6 In 1987, McClure, Joe, Rikki, and Leo-ra all executed an "Amendment and Restatement of the McClure Hughes Family Inter Vivos Revocable Trust Agreement" (1987 Amendment). In the 1987 Amendment, Joe and Rikki were ostensibly declared to be co-trustees of both the Marital Trust and the Family Trust. The 1987 Amendment also provided for a new order of preference for trustees. Specifically, during the lifetime of McClure, Joe and Rikki were to act unanimously as trustees. Then "[alfter the death of McClure Hughes, any Trustee may resign as set forth herein. Any Trustee may be removed and any successor Trustee shall be appointed by the majority vote of the children of McClure Hughes living from time to time."

T7 Thereafter, the trial court found that "Linnea attempted on many occasions to inquire of [Joe] and [Rikki] regarding trust documents, trust properties and trust issues and was constantly rebuffed."

T8 On November 7, 1987, Rikki and Joe executed an agreement between themselves regarding trustee fees. The trial court found that this agreement was not discussed with McClure.

T9 McClure's mental faculties noticeably began to slip sometime in 1992. In 1998, Joe and Rikki, purporting to act as trustees and using trust funds to pay legal fees, sought to have Joe named as conservator for McClure in a proceeding in California. The trial court found "[the principal motivation ... for the conservatorship action was 'a concern that substantial funds had been taken from trust accounts and placed into joint accounts of McClure Hughes and Leora T. Hughes." However, just prior to initiating the California proceeding, Joe and Rikki's counsel explained to them that money taken from trust funds and placed into McClure and Leora's joint accounts legally belonged to McClure when he received it and to both McClure and Leora when deposited in their joint accounts. Trust funds in the amount of $5,230.00 were expended in bringing the California action.

{10 Linnea initiated another conservator-ship proceeding in Utah. Eventually, a Utah court appointed Leora Hughes as conservator for McClure.

T11 McClure died on May 2, 1995. A month later, Linnea and her brothers Dwight Hughes and John Hughes asserted their right to act as trustees of the Family and Marital Trusts. The trial court found that

[alttempts to assume duties as trustee and manage trust assets by majority vote of the remaining children have continued since that time. [Joe] and [Rikki] ... have steadfastly refused to allow their siblings to participate as trustees or to acknowledge any duty other than to continue to manage the entire fund as joint trustees.

{12 In October of 1996, in a hearing before Judge Maetani, the parties stipulated to the appointment of an independent CPA. The CPA was to manage the trust properties and funds and do an accounting of all trust records.

113 On March 13, 1998, Judge Maetani signed a declaratory judgment that concluded that the 1974 Trust was a valid and existing trust and that the five Hughes children were the trustees and were to act jointly and by majority vote. In addition, the court retained jurisdiction to resolve any disputes that could not be resolved by a majority vote of the trustees.

{14 In an order dated April 22, 1999, Judge Harding concluded that "[the only remaining issue [regarding distribution of the trust] ... is whether any beneficiaries should have their portion of the equal division offset for expenses owed to the estate." The court then ordered an evidentiary hearing on the matter.

115 The hearing was set for September 24, 1999, and due to a scheduled rotation of divisions in, the Fourth District Court, occurred before. Judge Taylor. The day before the hearing was to begin, Dwight and John withdrew their pending motions before the court.

T16 Following the hearing on offsets, the trial court made numerous findings of fact and conclusions of law. The court found that the 1987 Amendment was ineffective in its attempt to change the priority of trustees for the Family Trust. Accordingly, at all times following the resignation of Robert, the appropriate trustees for the Family Trust were the five children, acting by majority vote, and Rikki and Joe's actions as sole trustees were unauthorized. 'The trial court found that "within a few weeks of the death of McClure Hughes, on June 6, 1995, the surviving children did attempt to exercise authority, however [Joe] and [Rikki] refused to acknowledge their siblings' claims and continued to exercise control until removed by order of this Court."

1 17 Specifically regarding Rikki and Joe, the trial court found that they "disregarded the plain language of all of the trust doeu-ments regarding priority of trustees," and except for only one unhelpful exception, "failed to regularly account to trust beneficiaries as required by statute [Utah Code Ann. § 77-7-303]."

118 Based on the evidence presented, the trial court ordered the following offsets. First, that Rikki and Joe would bear their own attorney fees and their distributive shares would be taxed with the equrt costs of Linnea, Dwight, and John, as well as Lin-nea's attorney fees. The court lowered Lin-nea's attorney's rate from $175 to $150 per hour. It also considered but denied awarding John attorney fees for his counsel who participated earlier in the litigation but who withdrew before the scheduled June hearing on offsets. In regard to the conservatorship proceedings, the court ordered that each of the children would bear their own attorney fees and costs, and accordingly recaptured the trust funds that were expended by Rikki and Joe in that action by charging the costs equally against their distributive shares. Finally, the trial court ordered the entire trust to bear the cost of the independent accountant.

119 After determining the corresponding offsets, the trial court ordered the corpus of the trusts to be distributed to the beneficiaries. This appeal followed.

ANALYSIS

I. Judgment on the Pleadings

120 Rikki and Joe first argue the trial court erred in not granting their motion for judgment on the pleadings at the beginning of the September 1999 hearing. Specifically, they argue that because Dwight and John withdrew their pending motions immediately before the hearing and their counsel moved the court for an immediate equal distribution, the court should not have held a hearing on offsets.

Rule 12(c) of the Utah Rules of Civil Procedure allows a party to move for judgment on the pleadings "[alfter the pleadings are closed but within such time as not to delay the trial." Utah R. Civ. P. 12(c). The 1999 hearing, however, was held pursuant to an earlier court order, and its sole purpose was to determine offsets to the beneficiaries' relative distributive shares. Therefore, this proceeding was not in the correct procedural posture for a rule 12(c) motion. In addition, both parties agreed that the lack of any pending pleadings imposed no prejudice because all of the parties were familiar with what offsets were at issue.

~ 122 Accordingly, we hold that a rule 12(c) motion was pro'cedufally incorrect and therefore was properly denied by the trial court.

II. Disputes over Attorney Fees

A. Linnea's Attorney Fees

1. Correctness of Awarding Linnea's Attorney Fees

123 Rikki and Joe argue the trial court erred in awarding Linnea's attorney fees incurred in this litigation. "The general rule in Utah, and the traditional American rule, subject to certain exceptions, is that attorney fees cannot be recovered by a prevailing party unless a statute or contract authorizes such an award." Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 782 (Utah 1994). "However, in the absence of a statutory or contractual authorization, a court has inherent equitable power to award reasonable attorney fees when it deems it appropriate in the interest of justice and equity." Id. This includes "the inherent power to award attorney fees when a beneficiary sues a trustee for violation of the trust and obtains a recovery for all other beneficiaries whose rights were also violated by the trustee." Id. at 783.

« 24 Based on this exception, the award of fees was within the trial court's discretion and is supported by the record. Linnea sued Joe and Rikki, acting as trustees, "for violation of the trust" and obtained "a recovery for all other beneficiaries whose rights were also violated by the trustee[s]." Id. The only relevant finding is whether Linnea obtained a recovery based on a violation of the trust. The record is clear that she did. Not only was the award of trustee fees that Rikki and Joe paid themselves substantially lowered, but also the costs associated with the California conservatorship proceeding were recaptured and charged against Rikki and Joe's distributive shares. Therefore, we affirm the trial court's award of Linnea's attorney fees.

2. Amount of Linnea's Attorney Fees Award

125 On cross appeal, Linnea argues the trial court erred in reducing the amount of her attorney fees. Specifically, she argues that because evidence was submitted regarding the reasonableness of Mr. Schmutz's hourly rate, and because no party objected to the reasonableness of his fee, the trial court improperly reduced Linnea's attorney's hourly rate.

126 "Calculation of reasonable attorney fees is in the sound discretion of the trial court, and will not be overturned in the absence of a showing of a clear abuse of discretion." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). (citation omitted). "A trial court's discretion in determining the amount of a reasonable attorney fee 'arises from the fact that it is in a better position than an appellate court to gauge the quality and efficiency of the representation and the complexity of the litigation'" Valcarce v. Fitzgerald, 961 P.2d 305, 317 (Utah 1998) (quoting Richard Barton Enters. v. Tsern, 928 P.2d 368, 380 (Utah 1996)). In determining a reasonable fee, trial courts are instructed to answer four questions:

1. What legal work was actually performed? "
2. How much of the work performed was reasonably necessary to adequately prosecute the matter?
3. Is the attorney's billing rate consistent with the rates customarily charged in the locality for similar services?
4, Are there circumstances which require consideration of additional factors, including those listed in the Code of Professional Responsibility?

Dixie, 764 P.2d at 990 (footnotes omitted). In this analysis, "what an attorney bills ... is not determinative." Id. "The appropriate ness of the work actually performed and of the attorney's billing rate is evaluated before a réasonable fee is set." Id. Accordingly, "tlhe trial court is not bound by the fees requested in the claimant's affidavit...." N.A.R., Inc. v. Marcek, 2000 UT App 300, ¶ 11, 13 P.3d 612. In addition, the evidence regarding a reasonable attorney fee does not have to be disputed in order for a trial court to award a lower amount. See Beckstrom v. Beckstrom, 578 P.2d 520, 524 (Utah 1978) ("Even though [the reasonableness of the attorney fee] evidence is undisputed, the trial judge was not necessarily compelled to accept such self-interested testimony whole cloth and make such an award; and in the absence of patent error or clear abuse of discretion, this court will not disturb his findings or judgment." (footnote omitted)).

T 27 In this case, the trial court specifically set forth the factors to be considered when determining a reasonable fee and stated that it would "consider each of the requests for fees in accordance with this standard." The trial court then found that Mr. Schmutz's and his associate's rates "substantially exceed[ed] that of Mr. Buckley ($100.00 per hour)." Consequently, the trial court found "that the work and time expended by Mr. Schmutz were reasonable although the hourly rate expressed is slightly excessive." Accordingly, even though Mr. Schmutz's affidavit was undisputed, the trial court did not abuse its discretion in lowering his hourly rate when determining a reasonable fee.

B. John's Request for Attorney Fees

128 John argues the trial court exceeded its discretion in denying him attorney fees because his supplemental affidavit and invoices copiously detail the fees in accordance with Utah law. "A party who requests ... attorney fees has the burden of presenting evidence sufficient to support an award." Cottonwood Mall v. Sine, 830 P.2d 266, 268 (Utah 1992). In the present case, the trial court denied John's initial request for fees because his counsel's (Mr. Carlile) affidavit failed to specify an hourly rate or describe the. nature of the work performed. However, Mr. Carlile submitted a supplemental affidavit and invoices detailing the hours spent, rate charged, and nature of the work performed. - Additionally, Mr. Carlile attested the rate charged was reasonable.

" 29 Although the trial court acknowledged that the supplemental affidavit and invoices provided much more detail about the work done, the court denied John's supplemental request for fees. The court's rationale for doing so was that the complexity of the trial was "radically increased" by the self-representation of John following Mr. Carlile's withdrawal for undisclosed reasons and that pro se parties are ordinarily not entitled to fees. ' f

11 30 This case involves an award of attorney fees on an equitable basis. Thus, the trial court has greater discretion to deny attorney fees. See Saunders v. Sharp, 840 P.2d 796, 809 (Utah Ct.App.1992). The trial judge who made the fee award observed that Mr. Carlile's withdrawal negatively impacted the proceedings. Specifically, Dwight and John filed numerous motions which accomplished little and burdened the parties. Additionally, Linea was forced to bear the-added expenses of a continuance necessitated by Mr. Carlile's withdrawal.

f 31 Because the court supported its denial by finding Mr. Carlile's withdrawal, for undisclosed reasons, "radically increased" the complexity of the trial and burdened the other parties, we conclude the trial court acted within its discretion in denying fees to John.

III. Trust Expenses

A. Trustee Fees for Rikki and Joe

1. Correctness of Awarding Trustee Fees to Rikki and Joe

132 In their cross appeal, Linnea, John, and Dwight argue the trial court erring in finding that Rikki and Joe should be awarded any trustee fees. At the outset, we note that trial courts have the authority to review trustee fees. See Utah Code Ann. §§ 75-7-201(1) (1993); 75-7-206 (1993).

183 In this case,' it is clear that although the trial court found that Rikki and Joe acted partially without authority and in some cases against the purpose of the trust, the trial court specifically found that Rikki and Joe did serve lawfully as trustees of the marital portion of the trust from 1987 until the death of their father. Therefore, it was not outside of the trial court's discretion to award a reasonable trustee fee to both Rikki and Joe.

2. Amount of Trustee Fees for Rikki and Joe

134 Rikki and Joe argue the trial court erred in reducing the amount of their trustee fees. The 1974 Trust was silent as to the issue of trustee fees and the 1987 Amendment provided that a "(trustee shall be entitled to a reasonable fee, which may be waived wholly or partially, for trustees' services, commensurate with fees charged by trustees for similar services." The trial court accepted evidence regarding trustee fees in the form of letters of the testator, a letter between Rikki and Joe, as well as testimony from Rikki and Joe.

1I 35 According to the trial court, the trustor's letters were the best evidence of reasonable trustee fees. "The best, indeed the only, real evidence of fees intended to be paid to the trustees is found within the letters written by [Rikki] and signed by McClure Hughes...."

136 " [The fact finder is free to weigh . conflicting evidence presented and to draw its own conclusions.'" Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998) (quoting State v. Pierce, 722 P.2d 780, 782 (Utah 1986)). We therefore affirm the amount awarded as trustee fees.

B. California Conservatorship Proceeding Expenses

137 Rikki and Joe argue the trial court erred in refusing to allow trust funds to pay Joe an extraordinary trustee fee and attorney fees associated with the California conservatorship action. They claim the denial resulted from the trial court's erroneous finding that the proceeding was not consistent with the purpose of the trust.

138 Regarding that proceeding, the trial court found that "[the action appears to have been grounded in a concern over possible dissipation of trust funds by MeClure Hughes' second wife, Leora Hughes." Significantly, the trial court found that the 1987 Amendment "was specifically intended to provide for the care of Leora Hughes."

1 39 The trial court found that "the efforts of [Joe] in attempting to become conservator for his father in 1998 were motivated by a desire to recapture funds from Leora T. Hughes, a purpose not consistent with the express purpose of the trust." We hold that the trial court did not abuse its discretion in finding that the California conservatorship proceeding was not consistent with the purpose of the trust and accordingly denying the use of trust funds to pay for associated expenses. '

C. Independent CPA Fee

140 On cross appeal, Linnea, John, and Dwight argue the trial court erred in charging the entire trust for the independent CPA's accounting services. Specifically, they argue that the trial court should have charged only Rikki and Joe's shares because they contend the independent CPA's services were necessitated by Rikki and Joe's misdeeds as trustees, including their failure to provide the beneficiaries with accountings.

[41 The trial court found the fee "to be a reasonable and necessary fee for investigation and management of trust funds and assets, chargeable to all parties to this litigation." Because no evidence was presented as to what portion of that fee was due to Rikki and Joe's improper actions, and because both parties stipulated to the appointment of an independent accountant, it was not an abuse of discretion for the trial court to charge the entire fee to the trust.

IV. Evidence of Siblings Being Unqualified to be Trustees

142 Finally, Rikki and Joe argue the trial court improperly relied on the law of the case doctrine when it excluded evidence that Linnea, Dwight, and John were unqualified to serve as trustees. In March of 1998, Judge Macetani signed a declaratory judgment that found the five Hughes children were the trustees and were to act jointly and by majority vote. In addition, the court retained jurisdiction to resolve any disputes that could not be resolved by a majority vote of the trustees. When counsel for Rikki and Joe attempted to introduce evidence at the 1999 hearing on offsets that their siblings were unqualified to act as trustees, the trial court stated "Judge Harding and Judge Mae-tani have considered this case.... I'm not willing to go into the history of this Trust."

143 In this case, although the court retained jurisdiction over potential disputes, the issue of the identification of the trustees was resolved by the 1998 declaratory judgment. Therefore, under the law of the case doctrine, we conclude that the trial court was correct when it ruled that it need not revisit this issue. See Salt Lake City Corp. v. James Constr., Inc., 761 P.2d 42, 44-45 (Utah Ct.App.1988).

T 44 In sum, we affirm on all issues raised in the appeal and cross appeal. °

1 45 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . The record is clear that Rikki and Joe's counsel, Mr. Bennett, agreed that he could proceed with the hearing.
      Judge Taylor: "Well, let me just ask you. Are any of these, any of these claims [for offsets] a surprise to your client or to you? These are all, all-" '
      Mr. Bennett: "These are all items, Your Hon- or, that in one way or another are addressed in the report that was done by Mr. Shields [the independent CPA].
      Judge: Uh-huh (affirmative).
      Mr. Bennett: So I think it would not be fair to say that we were surprised. I think that would just not be correct.
      Judge: Okay. And, and my view is that these claim{[s] are within the purview of Judge Harding's order. I think [they are] legitimate claims.

      . Accordingly, we need not reach Rikki and Joe's challenges to other findings of fact.

      . Mr. John Buckley was Linnea's previous counsel.


author:
THORNE, Judge.
      DAVIS, Judge

text:
    2002 UT App 98
    Ken HARRIS, Plaintiff and Appellant, v. Rick ALBRECHT; Rick Albrecht Insurance Agency, Inc.; and State Farm Fire & Casualty Co., Defendants and Appellees.
    No. 20001045-CA.
    Court of Appeals of Utah.
    April 11, 2002.
    Lynn C. Harris, Harris & Carter, Provo, and Ryan M. Harris, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellant.
    Paul M. Belnap, David R. Nielson, and Peter Barlow, Strong & Hanni, Salt Lake City, for Appellees.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge.

1 1 Appellant Ken Harris (Harris) appeals from an order granting summary judgment, dismissing his claims for breach of a contract to procure insurance and negligence. We reverse and remand.

BACKGROUND

[ 2 Appellee Rick Albrecht (Albrecht) is an insurance agent for co-appellee State Farm Fire & Casualty Company (State Farm). Over the course of several years, Albrecht and Harris developed an on-going business relationship, wherein Albrecht procured various types of insurance coverage for Harris. This relationship began in 1989, when Al-brecht procured automobile insurance coverage for Harris. Subsequently, Albrecht procured insurance coverage for Harris's home, boat, RV, and a liability umbrella policy.

T3 Albrecht and Harris conducted their business largely over the telephone, "rarely" discussing the particulars of the various types of coverage Harris sought to obtain from Albrecht. According to Harris, the two men talked on the telephone every couple of months, and all billings and applications were handled through the mail.

T4 In mid-summer of 1997, Harris telephoned Albrecht regarding insurance coverage for his architecture business. Harris recalled that the conversation between the two was "very short." During that conversation, Harris told Albrecht that he "wanted to place coverage on [his] office and its contents." In response, Harris contends that Albrecht said "okay, he would take care of [it], he would come out and look at [my office] equipment."

T5 On December 1, 1997, a fire destroyed the building housing Harris's business. That same day, Harris contacted Albrecht to inquire about the status of his business insurance. Harris asked Albrecht: "You placed that coverage we talked about, didn't you?" Albrecht replied: "We talked about it Ken [Harris], but we never did anything about it."

T6 On May 18, 1998, Harris brought claims against Albrecht, Rick Albrecht Insurance Agency, and State Farm (collectively Appellees) for negligent failure to procure insurance and breach of a contract to procure insurance. Subsequently, on May 3, 2000, Appellees filed for summary judgment, seeking dismissal of Harris's complaint.

T7 The trial court entered its order granting Appellees Summary Judgment Motion and dismissing Harris's Complaint. The trial court found that "there was not a duty to procure insurance and further no contract to procure was made as the essential terms of the proposed insurance contract were not agreed upon." Harris appeals.

ISSUE AND STANDARD OF REVIEW

T8 Harris argues the trial court erred by granting Appellees' Summary Judgment Motion. "Summary judgment should be granted only if there has been a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Brockbank v. Brockbank, 2001 UT App 251, ¶ 10, 32 P.3d 990 (quotations and citations omitted). Further, "[iIn reviewing the district court's grant of summary judgment, we review the court's legal decisions for correctness, giving no deference, and review the facts and inferences therefrom in the light most favorable to the nonmoving party." Id. (quotations and citations omitted).

ANALYSIS

T9 Harris argues the trial court erred by dismissing his claims for negligence and breach of a contract to procure insurance. Initially, we note that a determination of whether an insurance agent breached a duty to procure insurance or whether the agent breached a contract to procure insurance are matters of first impression for this court.

T{10 As explained in Barnett v. Security Insurance Co., 84 N.C.App. 376, 352 S.E.2d 855 (1987), an insurance "agent who, 'with a view to compensation for his services, undertakes to procure insurance [for a customer and] fails to do so, will be held liable for any damage resulting therefrom." Id. at 856-57 (citation omitted); see also Sanchez v. Martinez, 99 N.M. 66, 653 P.2d 897, 900 (1982). Further,

[under such facts, liability may be predicated either upon the theory that defendant is the agent of the insured and has breached a contract to procure a policy of insurance, or that he owes a duty to his principal to exercise reasonable skill, care, and diligence in securing the insurance requested and negligently failed to do so.

Sanchez, 653 P.2d at 900-01.

111 To establish a claim for failure to procure insurance, a plaintiff must prove the following: (1) an undertaking or agreement by an insurance agent to procure insurance; (2) the agent's failure to use reasonable diligence in attempting to place insurance and his failure to notify the client promptly if he has failed to obtain insurance; and (8) the agent's actions warranted an assumption by the client that he was properly insured. See Bonner v. Bank of Coushatta, 445 So.2d 84, 87 (La.Ct.App.1984).

112 "In determining whether an agent has undertaken to procure insurance, a court must consider the conduct of and the communications between the parties and, more specifically, 'the extent to which they indicate that the agent has acknowledged an obligation to secure a policy'" Barnett, 352 S.E.2d at 857 (citation omitted). Further, "[wlhere an insurance agent ... gives some affirmative assurance, that he will procure a policy of insurance under cireum-stances which lull the insured into belief that such insurance has been effected, the law will impose upon the ... agent the obligation to perform the duty which he has thus assumed." Id. (quotations and citations omitted). Finally, determining whether an agent has failed to procure insurance is ordinarily a question of fact. See 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 46:46 (3d ed.1996).

113 We find three cases to be helpful in determining this issue. In Massengale v. Hicks, 639 S.W.2d 659 (Tenn.Ct.App.1982), the Tennessee Court of Appeals upheld a trial court's decision finding that the defendants breached an implied contract to procure insurance for the plaintiff. See id. at 660. In Massengale, the plaintiff and the defendant insurance agent had an existing business relationship spanning thirteen years. See id.

T 14 In July of 1977, the plaintiff in Mas-sengale received a notice of nonrenewal of insurance, which stated that his automobile insurance would expire at 12:01 A.M. on September 12, 1977. See id. The plaintiffs mother immediately notified the defendant of the notice, and the defendant said that he "would take care of it." Id. Both the plaintiff and the plaintiff's mother subsequently discussed the insurance policy with the. defendant on numerous occasions. See id.

1115 On September 12, 1977, the plaintiff was involved in an automobile accident. See id. However, the plaintiff was not insured because the defendant had not renewed the insurance policy. See id. As a result, the plaintiff brought suit for failure to procure a replacement insurance policy. See id. At trial, the jury determined that the defendant had indeed breached his duty to procure replacement insurance. See id.

1.16 On appeal, the defendants argued that both the "plaintiff and his mother knew that plaintiff would have to be covered by a nonstandard insurance policy which, before it could become effective, an application must be signed and premium paid in full." Id. Accordingly, the defendants argued that the "plaintiff knew that no insurance policy had ever been issued." Id.

T 17 The court concluded, however, that an "abundance of evidence" existed "from which the jury could find" that the defendant insurance agent agreed to procure replacement insurance. Id. Finally, the court specifically pointed out that "[the contract here is not that .a policy of insurance had been issued but that [the defendant's] promises and actions were the insuring agreement relied wpon by the plaintiff." Id. (emphasis added).

118 Lawrence v. Francis, 223 Ark. 584, 267 S.W.2d 306 (1954), although dated, is also helpful. In Lawrence, the defendant was both a real estate agent and an insurance agent. See id. at 307. The plaintiff sought the defendant's services as a real estate agent to purchase 2.5 acres of land, containing a home, garage, barn, and chicken-house. See id. Following his purchase, the plaintiff inquired of the defendant regarding the acquisition of insurance for his newly acquired property. See id.

119 At trial, plaintiff testified that he had the following conversation with defendant:

Plaintiff: {[I] asked [defendant] at that time about insurance, I1 asked him whether he knew [if the prior home owner] had any insurance on the property, and [defendant] said he didn't know. ... I said, will you see the [former owner] and find out if he has insurance and how much and if you can settle at sufficient coverage will you see if he can transfer it to me and I will pay the premium. If you don't consider it sufficient premium, I want insurance, because I want full coverage.
Plaintiff: [I] said, "and you [defendant] will take care of insurance?" and he said, "Yes, yes," so I considered the insurance would be taken care of, being as he was an insurance agent-in that business- and I had told him that I wanted full coverage.

Id.

T20 The conversation between the two occurred on July 17th, and on August 31st a fire destroyed all of the buildings on the plaintiffs property. See id. The plaintiff learned of the fire on September 7th and contacted the defendant regarding insurance coverage. See id. The defendant, however, had not procured insurance for the property. See id. at 307-08. The defendant told the plaintiff that he could not procure insurance for the property because he did not know the specific amount that the plaintiff had intended to insure the property. See id. at 308. The defendant's comment came despite the plaintiffs earlier statement that he wanted "full coverage" on the property. Id.

121 The matter was ultimately brought before a jury, which found that defendant had "failled] to obtain insurance on property in accordance with an agreement." Id. at 306-07. On appeal, the Arkansas Supreme Court concluded that an agreement to procure insurance existed between plaintiff and defendant, based upon their prior conversation, and that "(defendant] failed entirely to exercise reasonable care to perform his agreement with [plaintiff] as to insurance." Id. at 309.

122 Further, the court explained that "[the defendant], as a real estate agent, had a commission coming from completing the sale, as well as his profit from writing insurance, constituted a sufficient consideration to support his promise to [the plaintiff] to 'see about insurance'" Id. at 308. The court also explained that supporting testimony from another insurance agent regarding the plaintiff's request "was a sufficient instruction to any insurance agent to bind the risk and extend credit for the coverage." Id.

123 Finally, in Caddy v. Smith, 129 Or.App. 62, 877 P.2d 667 (1994), the Oregon Court of Appeals reversed a trial court's decision granting summary judgment and dismissing the plaintiff's claim for negligently failing to procure a policy of insurance. See id. at 668. In Caddy, the plaintiffs were building their own home and spoke with one of the defendant's employees regarding insurance coverage for potential Hability related to the construction of the house. See id. One of the plaintiffs indicated that he had the following conversation with the defendant's employee: ° ' ~

I told her that I need some insurance, and she said okay. And I said I need the usual kinds of things in case it burns to the ground, in case this and that in various stages of construction and there are two specific things I want covered. And she said okay. And I said, "There are a lot of people wandering in and out of my house, . and in case one of those people falls down, ... I want it taken care of." She said okay. I said, "there are a lot of 'people wandering out there working on the job and I don't want any liability as far as any of those people are concerned." And she said, ... "Who's the contractor?" +I said, "Well, I don't know." ... And she said, "Well who's paying the bills?" And I said, "Well I am." [Following another exchange of questions between the two concerning the particulars of the house, the defendant's employee concluded:] "Okay, I'll take care of it for you." And I said "Okay. Thanks. Let me know how much it is and I'll drop by a check."

Id.

124 The defendant procured a standard homeowner's insurance policy for the plaintiffs. See id. The insurance policy excluded workers' compensation coverage. See id. During construction of the house, a worker was injured and subsequently sought workers' compensation benefits. See id. at 669. The Workers' Compensation Board determined that the plaintiff homeowners were the injured worker's employers, and that the "plaintiffs were noncomplying employers who were responsible for paying for the injuries." Id.

11 25 The plaintiffs subsequently brought a negligence claim against the defendant for failing to procure workers' compensation coverage and for failing to inform the plaintiffs that they needed that coverage. See id. The trial court dismissed the plaintiffs' claim on summary judgment. See id.

"I 26 On appeal, the court reversed the trial court's ruling. See id. at 670. The court explained that although the plaintiffs did not directly ask for workers' compensation coverage, the plaintiff specifically requested insurance to cover " 'any liability' " for those who were " 'working on the job"" Id. at 669. Further, the defendant's employee "asked a number of questions about whether [the] plaintiff was the contractor and whether the workers had their own insurance, and then assured plaintiff that [the] defendant would take care of that request." Id. The court concluded: "That testimony, viewed in the light most favorable to plaintiffs, reasonably supports a finding that plaintiffs provided sufficient information to defendant to give rise to a duty to procure workers' compensation insurance." Id.

T27 Here, similar to Caddy, we must decide if the facts taken in the light most favorable to Harris preclude summary judgment. First, Harris and Albrecht had an ongoing, eight-year business relationship, during which Albrecht procured a multitude of insurance policies for Harris. Second, the parties conducted nearly all of their business transactions via telephone, and, according to Harris, "rarely met face-to-face, if ever." Harris also indicated that the two men talked on the telephone "every couple of months." Third, Harris indicated that the two. men " 'rarely' discussed the particulars of the various insurance coverages Harris sought to obtain from Albrecht." Finally, and most importantly, Harris told Albrecht that he wanted to place business coverage on his office and its contents, and, in response, Al-brecht replied that he would take care of it and that he would come out and look at the equipment.

T 28 We conclude that the facts viewed in a light most favorable to Harris, namely the conversation between the parties, their longstanding business relationship, and the nature with which the parties conducted their business, necessarily precludes summary judgment.

129 The trial court's order granting summary judgment is therefore reversed, and we remand to the trial court for further proceedings consistent with our decision.

130 I CONCUR: PAMELA T. GREENWOOD, Judge.

DAVIS, Judge

(dissenting):

{31 Because there was no agreement between the parties sufficiently specific to create either a contract to procure insurance or a duty to do so, I must dissent. See 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance §§ 46.65 at 46-96, 46.68 at 46-99 (3d ed.1996); see also Riddle-Duckworth, Inc. v. Sullivan, 253 S.C. 411, 171 S.E.2d 486, 491 (1969) (stating burden is on plaintiff to demonstrate "with reasonable certainty the terms and conditions of the agreement" to procure insurance, and for a valid contract to procure, there must be "sufficient information provided upon which to procure the policy"). This case was appropriately disposed of by summary judgment because whether a legal duty exists is a question of law and whether a contract has been formed, based on a given set of facts, is also a question of law. See Ferree v. State, 784 P.2d 149, 151 (Utah 1989) (stating whether a duty exists is "entirely a question of law to be determined by the court"); Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986) (same) Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 17, 989 P.2d 1077 ("Whether a contract has been formed is ultimately a conclusion of law. ..."}.

1 32 The majority opinion misses the mark for three related reasons. First, the majority misapprehends the appropriate import of the prior dealings between the parties. Second, the cases relied on by Harris and the majority are easily distinguishable from the facts and inferences we have here, even when viewed in the light most favorable to Harris. Finally, the majority fails to analyze whether or. not Harris's reliance on the purported promise by Albrecht was reasonable.

133 The majority notes that "Harris and Albrecht had an ongoing, eight-year business relationship," ante at ¶ 27, and goes to great pains to point out how the two men conducted themselves during these transactions. This would be important if the past dealings helped to supply some of the missing terms necessary to procure an insurance policy on Harris's business. See Hamacher v. Tumy, 222 Or. 341, 352 P.2d 493, 498 (1960) (noting that prior policies entered into by the parties could be relied on to supply missing terms necessary to enable agent to procure insurance). However, that is not the case here. All of the past dealings between the two men regarding insurance matters dealt with automobiles, boats, and similar items that have a ready market and have easily ascertainable values and standard insurance coverages-unlike a business. The past dealings between the parties do not help define what the terms of the alleged contract to procure insurance were. In my view, the prior history between the parties cannot be relied on to fashion a contract to procure insurance that never existed in the first place due to an almost total lack of agreed upon terms.

I 34 Second, the three cases primarily relied on by the majority, Lawrence v. Francis, 223 Ark. 584, 267 S.W.2d 306 (1954), Caddy v. Smith, 129 Or.App. 62, 877 P.2d 667 (1994), and Massengale v. Hicks, 639 S.W.2d 659 (Tenn.Ct.App.1982), are all inapposite. In all of those cases, the agent knew, or should have known, exactly what was needed to be covered due to either past dealings with the plaintiff or from information speaﬁcally provided by the plaintiff.

1385 Hicks is an automobile renewal case; the policy was already written and all that had to be done was to renew its See id. at 660. In addition, the plaintiff and his mother contacted the agent a total of seven times in order to obtain the insurance. See id

11 36 Francis is to the same effect. There, the insurance agent was also the realtor who sold the plaintiff the subject property, see Francis, 267 S.W.2d at 307, and thus, the agent knew exactly what needed to be insured. Moreover, there was already a policy written in the former owner's name; all that was asked of the agent was to switch it over to the plaintiff. See id. Thus, the risk to be insured against, the premium, and the property at issue all were known to the agent or easily ascertainable from the prior policy.

T37 Caddy also is unlike this case. There, the risk to be insured against and subject property were specifically described by the plaintiff to the agent. See Caddy, 877 P.2d at 668-69. The two cases would be analogous only if Harris had specifically told Al-brecht he wanted to insure against fire and then itemized the property to be protected and assigned it a value.

1 38 Finally, the majority fails to apply the third element set forth in Bonner v. Bank of Coushatta, 445 So.2d 84, 87 (La Ct.App.1984) ("the actions of the agent warranted an assumption by the client that he was properly insured"). In order to recover on either theory-the contract to procure or the breach of a duty to procure-Harris must demonstrate that it was reasonable for him to rely on the agent to obtain the policy. See Couch on Insurance, supra § 46.72 at 46-107. Harris did not act reasonably in relying on Albrecht's purported statement that he would "take care of it" when Harris had but one brief conversation regarding an unknown and amorphous business policy and, even though he admits having spoken with Al-brecht on other occasions, never followed up to see if the coverage had been arranged, never received a bill over the course of several months, and Albrecht never came out to see the property to be insured.

139 In my view, this case is closer to Lewis v. Pike, 663 P.2d 91, 92-98 (Utah 1983) (affirming a grant of summary judgment for the defendant because there was no "specific order for insurance"), than any of the three cases relied on by the majority. Here, the actions of Harris amounted. to little more than an inquiry about insurance, see id. at 92, and fall far short of creating a contract to procure insurance or creating a duty to do the same. See Stockberger v. Meridian Mut. Ins. Co., 182 Ind.App. 566, 395 N.E.2d 1272, 1279 (1979) (stating the agent's lability "could not arise unless the agent had sufficiently definite directions from the principal to enable the agent to consummate the final insurance contract," and noting that there is a corresponding duty on the part of the insured to provide the agent with necessary information); Boston Camping Distrib. Co. v. Lumbermens Mut. Cas. Co., 361 Mass. 769, 282 N.E.2d 374, 376 (1972) (holding statement by plaintiff to agent that he wanted coverage from "A to Z, second to none" was not a contract to procure and merely expressed an intent to obtain insurance); Wallis v. Liberty Mut. Ins. Co., 465 S.W.2d 422, 425-26 (Tex.Civ.App.1971) (reversing a judgment for plaintiffs against agent and stating that instructing the agent to procure insurance was not enough to give rise to a duty to procure insurance, it merely indicated "a desire on the part of plaintiffs to be insured"). Accordingly, I respectfully dissent.

      . We recite the facts in a light most favorable to Harris, the non-moving party. See Brockbank v. Brockbank, 2001 UT App 251, ¶ 10, 32 P.3d 990.

      . Albrecht's company, Rick Albrecht Insurance Agency, is also a co-appellee.

      . Albrecht denies making such statement. However, Albrecht argues that even if he did make such a statement, it neither established a contract to procure insurance nor a duty to procure insurance.

      . The plaintiff asserted the claim against both the insurance agent and the insurance agency, Hicks and Associates, Inc.

      . The dissent argues that we have failed to apply the third element set forth in Bonner, which requires a determination as to whether the agent's actions warranted an assumption by the client that he was properly insured. See Bonner v. Bank of Coushatta, 445 So.2d 84, 87 (La.Ct.App.1984). We are reluctant at this stage of the litigation, as an appellate court, to make such a determination, which we believe is a proper question for the trier of fact.

      . The dissent concludes that "there was no agreement between the parties sufficiently specific to create either a contract to procure insurance or a duty to do so." However, what this court was called upon to decide was whether the facts taken in the light most favorable to Harris preclude summary judgment. Whether a contract to procure insurance or a duty to procure a policy of insurance ultimately exists, are questions of fact best left to the trier of fact. In sum, we do not decide today that a contract or a duty exists, merely that Harris has presented a genuine issue of fact as to whether either exists, which was necessary to satisfy the hurdle of summary judgment. \
      Finally, we believe that the cases relied upon by the dissent do not support its ultimate conclusion. Indeed, in Lewis v. Pike, 663 P.2d 91 (Utah 1983), summary judgment was proper because (1) the plaintiffs expressly told the defendant ''that they would later contact him and inform him of their decision as to whether they wanted joint insurance," id. at 92 (emphasis added); (2) the parties never spoke, either face to face or by telephone, about the defendant procuring an insurance policy after the plaintiffs had initially declined to pursue that policy, see id.; and (3) the parties had no prior dealings. See id. Accordingly, these facts are drastically different from those we face today.
      Moreover, the same can be said for Stockberger v. Meridian Mutual Insurance Co., 182 Ind.App. 566, 395 N.E.2d 1272 (1979). In Stockberger, as in the present matter, the parties had numerous prior dealings and expectations that flowed from those dealings. See id. However, in Stockberger, the plaintiff "was aware that he had not provided [the defendant] with specific information to effectuate the [insurance] transfer," which he had always done in the past. Id. at 1279. The plaintiff had also not received a confirmation from the defendant that the insurance was transferred, which was also customary in their prior dealings. See id.
      Here, taking the facts in a light most favorable to Harris, there is nothing to suggest that this dealing or the expectations that flowed from it were any different from their past dealings. The two had conducted business in this fashion in the past. While insuring Harris's business is different than that of insuring his home and vehicles, Harris has "established a pattern of conduct from which a contract could be implied." Id. at 1280 (emphasis added). And, at this stage of the litigation Harris need do nothing more.


author: THORNE, Judge:

text:
    2002 UT App 100
    Greg F. KNIGHT, Steve Hall, Roy Neizer, and Brock Hudson, personally and on behalf of a class of persons similarly situated, Plaintiffs and Appellants, v. SALT LAKE COUNTY, a governmental entity, Defendant and Appellee.
    No. 20000864-CA.
    Court of Appeals of Utah.
    April 11, 2002.

      Brian M. Barnard and James L. Harris, Utah Legal Clinic, Salt Lake City, for Appellants.
    Valerie Wilde and John P. Soltis, District County Attorney's Office, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and ORME, and THORNE, JJ. e
   OPINION

THORNE, Judge:

1 Appellants Steve Hall, Roy Neizer, and Brock Hudson (the Class) appeal from the trial court's grant of summary judgment dismissing the Class's claim. We affirm.

BACKGROUND

12 Between July 16, 1991 and July 16, 1997, the Salt Lake County Sheriff's Office required certain employees to arrive at work ten minutes prior to the beginning of their shifts for briefings or roll call. The County categorized this time as de minimis and refused to pay the employees for this time. In June of 1996, the Class, comprised of county employees affected by the County's refusal to pay for the briefing time, filed a lawsuit, in United States District Court, based in part on violations of the Fair Labor Standards Act (FLSA). In July of 1996, after examining the complaint, the County capitulated on the FLSA issue and issued the affected employees, including all Class members, payroll checks to compensate them for the unpaid time that had acerued between February of 1994 and the inception of the lawsuit. Then, based upon the County's motion, the United States District Court dismissed the Class's FLSA claim with prejudice and the pendant state law claims without prejudice. See Bonnie Villalobos v. Salt Lake County, 96-CV-00134 B (1996). The Class subsequently filed this claim on November 12, 1997.

13 Following the completion of discovery, both parties filed cross motions for summary judgment. Included in the County's motion was an argument that the Class's claims were time barred pursuant to Utah Code Ann. § 78-12-26(4) (1996), the statute of limitations applicable to statutory claims. Initially, the trial court denied the motions, however, shortly before the scheduled trial date, the court decided to revisit the issues presented in the summary judgment motions.

{4 Following oral argument, the trial court, ruling from the bench, held that the Class's claims were based on rights conferred by statute, not contract, and therefore the reach of the Class's claims was limited by section 78-12-26(4). Accordingly, the trial court ruled that the claims were time barred and granted the County summary judgment. The Class now appeals.

ANALYSIS

15 The Class argues that the trial court erred in determining that no employment contract existed between the County and the Class and therefore improperly granted summary judgment in favor of the County. The trial court, in its summary judgment order, concluded first that the Class was comprised wholly of statutory employees, and second that the County had not entered into an agreement with the Class that altered, amended, or changed the rights granted to the Class by statute. We therefore must first examine whether the trial court correctly determined that the members of the Class were statutory employees, and, if so, whether the County had entered into an agreement that would expand the Class's rights beyond those granted by statute.

T6 "On review of summary judgment, we give no deference to the trial court's conclusions but review them for correctness." Brinton v. IHC Hosp., Inc., 973 P.2d 956, 964 (Utah 1998). "[SJummary Judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Schuurman v. Shingleton, 2001 UT 52, ¶ 9, 26 P.3d 227. " [(In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" Dixon v. Pro Image Inc., 1999 UT 89, ¶ 12, 987 P.2d 48 (quoting Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993)) (alteration in original). "Although the existence of an implied contract is a factual question, 'the court retains the power to decide whether, as a matter of law, a reasonable jury could find that a[ ] contract exists"" Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 401 (Utah 1998) (quoting Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 306 (Utah 1992)). The principal question to be addressed in examining a purported employment contract is whether the evidence supports the existence of an agreement in which the employer voluntarily undertook a duty that it otherwise would have no obligation to perform. See id.

17 We first address whether the Class, employed pursuant to the County Personnel Management Act, see Utah Code Ann. §§ 17-33-1 to -15 (1999), is comprised of statutory employees, and if so, whether their employment rights are statutory in nature. In Hom v. Utah Department of Public Safety, 962 P.2d 95 (Utah Ct.App.1998), we examined a claim not unlike the present action. In Hom, the plaintiff's employment had been terminated for, among other reasons, perjury, insubordination, and malfeasance. See id. at 98. On appeal, Hom argued that the trial court erred in "barring his wrongful termination claim under the three-year statute of limitations for violations of rights ere-ated by statute," asserting instead, that his claim was subject to the six year statute of limitations applied to actions brought in contract. Id. at 99.

118 In addressing Hom's argument, we examined Utah case law, as well as case law from other jurisdictions, and determined that public employees' employment rights generally spring not from contract, but from legislative policy. See id. at 101. Accordingly, we concluded that absent evidence of an agreement that "altered or added to the terms and conditions of public employment included in the Personnel Management Act and implementing regulations," id. at 101, a public employee's employment rights "are statutory rather than contractua ," id. at 100, and will be treated as claims "in vindication of rights created by the Personnel Management Act." Id. at 101.

19 Here, there is no question that the Class is comprised of individuals whose employment exists pursuant to statute. See Utah Code Ann. §§ 17-33-1 to -15; id. §§ 17-30-1 to -24. It is also clear that the specific jobs performed by those comprising the Class were created pursuant to statute and "established by and ... run for the benefit of all the people." Wright v. Kansas Water Office, 255 Kan. 990, 881 P.2d 567, 571 (1994). Therefore, we conclude that the employment rights of the Class are firmly rooted in statute, and the Class is comprised of statutory employees.

10 Accordingly, we must now examine whether, when viewed " 'in the light most favorable" to the Class, Pro Image Inc., 1999 UT 89 at ¶ 12, 987 P.2d 48 (quoting Higgins, 855 P.2d at 233), a reasonable jury could find that the documents offered by the Class amounted to an agreement that altered or added to the terms of public employment. See Ryan, 972 P.2d at 401; Hom, 962 P.2d at 101.

T 11 The Class presents the following doeu-ments as evidence of an employment contract between the Class and Salt Lake County: letters offering employment to two different Class members; two notices of personnel action; an excerpt from the Salt Lake County Deputy Sheriff's Merit Service Commission Policies and Procedures Manual; and a signed document, bearing the signature of one Class member, stating that the member has read and understood the departmental policies and procedures manual. The Class argues that these documents constitute an employment contract based upon a written instrument. We disagree.

112 First, we have previously disposed of similar claims for the primary reason that the documents listed above, in some form, are all mandated under the Personnel Management Act. See, e.g., Thurston v. Box Elder County, 835 P.2d 165, 169-70 (Utah 1992) (holding that the plaintiff's breach of contract claim was properly a statutory claim under the Personnel Management Act). Through the various provisions of the Personnel Management Act, see Utah Code Ann. §§ 17-33-1 to -15, and the Deputy Sheriffs-Merit System Act, see id. §§ 17-30-1 to -24, the legislature has vested the County with the authority to recruit, select, and advance employees, see id. §§ 17-30-2, -6, -12; §§ 17-33-3, -5, as well as the responsibility to establish personnel records "setting forth as to each employee class, title, pay or status, and other relevant data" Id. § 17-33-5(2)(e). The Personnel Management Act also sets forth the County's responsibility to establish an office of personnel management, under the direction of a personnel director, which is vested with the responsibility of designing and implementing the county pay plan including salaries, wages, incentives, and bonuses, see id. § 17-33-7(1)(c)(i), and grants responsibility for making the final selection for appointments to employment positions to county agencies, departments, and offices. See id. § 17-33-1(2)(c).

113 Therefore, even were we to conclude, as the Class has argued, that these doeu-ments were sufficient to form the basis of a contractual obligation on the part of the County, we -would also be constrained to conclude that the agreement did not alter or amend the Class's terms of public employment: Therefore, the documents have no impact on the Class member s status as statutory employees.

1 14 Moreover, we have examined the doe-uments and cannot agree that they form a contract of any kind. In order for the doeu-ments to be an employment contract, they must demonstrate that the County voluntarily undertook a duty that it would not have otherwise had as a consequence of the agreement. See Ryan, 972 P.2d at 400-01. These documents demonstrate no such undertakmg on the part of the County.

«1 15 The first set of documents are contingent offers of employment to two of the Class members. The second set of documents amount to nothing more than records of Class member status and pay at the time the forms were issued. Third, the Class offers a signature which evidences nothing more than acknowledgment that the Class member read and understood the manual and that he would follow his superior's orders, whether "written or verbal." Finally, the excerpted portion of the policies and procedures manual sets forth its purpose at the very front of the document: "To comply with the Fair Labor Standards Act and provide for the uniform and equitable administration of overtime and compensatory time off for sworn employees." However, as we have previously discussed, each of these documents is required or controlled by the Personnel Management Act and its implementing regulations.

1116 Moreover, as evidenced by Salt Lake County's quick action in the face of the Class's earlier federal lawsuit, the County was bound to comply with the requirements of the FLSA regardless of the affirmative adoption of its terms in the policies and procedures manual. The County's act of affirmatively accepting the required terms of the FLSA, therefore, cannot amount to the County assuming a duty that it would not have otherwise had. See 29 U.S.C.S. § 215 (2002).

€17 Absent further indication that the County entered into an employment contract with the Class, we conclude that no reasonable fact-finder could have determined that a contract existed. See Ryan, 972 P.2d at 401. Therefore, the trial court properly determined that the Class's wage claim was statutory in nature and had expired prior to the filing of the action pursuant to Utah Code Ann. § 78-12-26(4).

CONCLUSION

[18 All members of the Class, being subject to the terms and conditions of the County Personnel Act and the Deputy Sheriff's-Merit System Act, were correctly classified as statutory employees. Therefore, absent evidence of an agreement or contract altering or amending the terms or conditions of their public employment, their employment claims are statutory in nature, thus subject to the limitations found in Utah Code Ann. § 78-12-26(4).

{19 Further, we conclude that the documents offered by the Class as evidence of an employment contract or agreement between the Class and the County are insufficient as a matter of law to constitute a contract. Therefore, the trial court properly granted summary judgment in favor of the County.

1120 Accordingly, the trial court's grant of summary judgment is affirmed.

€ 21 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and GREGORY K. ORME, Judge.

      . 29 U.S.C.S §§ 201-219 (2002).

      . The Fair Labor Standards Act (FLSA) has a two year statute of limitations, see 29 U.S.C.S. § 255 (2002), and the County's payments effectively removed the claim from the reach of the FLSA.

      . The Class first filed the complaint on July 16, 1997, but later chose to voluntarily dismiss it pursuant to Rule 41 of the Utah Rules of Civil Procedure. Subsequently, on November 12, 1997, the Class refiled the complaint.

      . Utah Code Ann. § 78-12-26(4) (1996) establishes that "for a liability created by the statutes of this state" the applicable statute of limitations is three years.

      . The trial court determined that the Class was seeking relief for damages that had accrued prior to February of 1994. Therefore, pursuant to section 78-12-26(4), the trial court concluded that the statute of limitations had expired.

      . The Class does not dispute that they are employed pursuant to the Personnel Management Act, see Utah Code Ann. §§ 17-33-1 to -15 (1999), or the Deputy Sheriffs-Merit System Act, see id. §§ 17-30-1 to -24. Rather, the Class's argument centers on the possible effect that certain documents could have had on their employment rights, and their claim that those documents created a contract between the Class and Salt Lake County.

      . Wright v. Kansas Water Office, 255 Kan. 990, 881 P.2d 567 (1994) is also quite persuasive in this regard. In Wright, the Kansas Supreme Court addressed whether the employment relationship between a public employee and a government entity was contractual or statutory. See id. at 570. After closely examining the nature of public employment, the court determined that a public employees' rights are statutory in nature and concluded that
      ''There neither is, nor can be, an analogy of statuses between public employees and private employees, in fact or law, because of inherent differences in the employment relationship arising out of the unique fact that the public employer was established by and is run for the benefit of all the people and its authority derives not from contract nor the profit motive inherent in the principle of free private enterprise, but from the constitution, statutes, civil service rules, regulations and resolutions."
      Id. at 571 (citation omitted); cf. Weese v. Davis County Comm'n, 834 P.2d 1, 3 (Utah 1992) ('The county only has those rights and powers granted it by the Utah Constitution and statutes or those implied as a necessary means to accomplish them." (Footnote omitted.)).


author: HILL, Justice.

text:
    2002 WY 68
    William E. YOUNG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-192.
    Supreme Court of Wyoming.
    May 7, 2002.

      William E. Young, Pro se, Riverton, Wyoming.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   HILL, Justice.

[11] William E. Young (Young) appeals a district court order denying a Motion to Correct an Ilegal Sentence, which sought credit for time served against a penitentiary sentence. We conclude that Young was appropriately credited for the presentence incarceration for which he was eligible and affirm.

ISSUE

[12] Young did not set out a succinet statement of the issue in his pro se brief. The State identified two issues:

I. Did the trial court abuse its discretion in refusing to grant appellant credit for 117 days he was held in confinement awaiting probation revocation, given that the confinement would have persisted regardless of appellant's financial ability to post bond?
II. Do appellant's many violations of the Wyoming Rules of Appellate Procedure warrant summary affirmation in accordance with W.R.A.P. 1.03?

FACTS

[13] On August 5, 1999, Young pleaded guilty to third degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-304(a)(1) (LexisNexis 2001), and was released on his own recognizance pending completion of the pre-sentence investigation report. Subsequently, Young was placed on five years probation in accordance with the plea agreement.

[T4] On December 16, 1999, the State filed a petition to revoke Young's probation due to repeated violations of the probation terms. Young was taken into custody on December 24, 1999. At the probation revocation hearing, the State and defense counsel requested a deferral of the proceedings pending a possible placement of Young with Community Alternatives of Cheyenne (CAC) and the Intensive Supervision Probation program (ISP). Young was denied placement in CAC, but was accepted by ISP, which also recommended an inpatient alcohol abuse treatment program. A hearing was held on the State's revocation petition on March 10, 2000. The district court revoked Young's first offender probation and agreed to an assignment in the ISP program with the provision that Young first complete an inpatient alcohol treatment program. The court also required Young to remain in custody until a slot in the treatment program opened because of concerns over his alcohol abuse and history of suicide ideations. After one postponement, a sentencing hearing was held on April 19, 2000. The district court resen-tenced Young on the underlying sexual assault charge to two to three years in the penitentiary but suspended imposition of the sentence in favor of the inpatient alcohol abuse treatment and placement in the ISP program. Young was then released into the custody of the ISP program and taken to the alcohol treatment center.

[T5] After completing his inpatient treat> ment, Young entered the ISP program but failed to comply with the terms of participation. At a hearing on January 26, 2001, the district. court revoked Young's probation upon admission of the violation and imposed the underlying two- to three-year sentence. After a defense motion, the district court granted Young 22 days credit for time served from January 9, 2001, to January 31, 2001.

[16] On May 28, 2001, Young filed a pro se motion to correct an illegal sentence pursuant to W.R.Cr.P. 35(a). Young claimed that he was entitled to 120 days credit for time served from December 25, 1999, until April 19, 2000. The timeframe enqompés'sed the period from his arrest for violating the terms of his first offender status probation until the day he was released into ISP custody for transport to the inpatient treatment program. The district court denied the motion, and Young has now brought his claim to this Court. -

STANDARD OF REVIEW

[17] "The decision to grant or deny a motion to correct an illegal sentence is usually left to the sound discretion of the district court." Segnitz v. State, 7 P.3d 49, 52 (Wyo.2000); see also White v. State, 934 P.2d 745, 746 (Wyo.1997).

The district court's decision is given considerable deference unless a rational basis does not exist for it. A criminal defendant is entitled to receive credit against his sentence for the time he was incarcerated prior to sentencing, provided that such confinement was because of his inability and failure to post bond on the offense for which he was awaiting disposition. A sentence which does not include credit for presentence incarceration is illegal and constitutes an abuse of discretion. A defendant is not, however, entitled to eredit for the time he spent in custody when that confinement would have continued despite his ability to post bond.

Segnitz, 7 P.3d at 52 (internal citations omitted).

DISCUSSION

[18] In its brief, the State urges us to summarily affirm the district court's decision for Young's failure to comply with the Rules of Appellate Procedure. The State notes that Young's pro se brief does not contain a statement of the issues, a statement of the case or facts, cite to the appellate record or pertinent authority, identify the district court action from which the appeal is taken, or present cogent argument.

[T9] A pro se litigant is entitled to some leniency from the stringent standards applied to formal pleadings drafted by attorneys. However, there must be a reasonable adherence to the procedural rules and requirements of the court. Hodgins v. State, 1 P.3d 1259, 1262 (Wyo.2000). This Court will impose sanctions including, but not limited to, summary affirmance, pursuant to W.R.A.P. 1.03 on pro se litigants who fail to comply with these rules. Id. at 1262-63. In this case, we decline the State's offer to summarily affirm Young's appeal. While Young's brief is clearly deficient in its compliance with the Rules of Appellate Procedure, it is sufficient for us to discern the nature of the issue raised by Young and the legal parameters of its resolution. Therefore, we will address the merits of Young's claim.

[T10] Young contends that the district court should have given him eredit for the 117 days he was confined from his arrest on a probation violation on December 24, 1999, until he was resentenced on the revocation of that probation and released into the ISP program on April 19, 2000. A defendant is entitled to credit against his sentence for confinement due to an inability and failure to post bond on the offense for which he is awaiting disposition. Smith v. State, 988 P.2d 39, 40 (Wyo.1999).

A defendant is not, however, entitled to credit for the time that he spent in custody when his confinement would have continued despite his ability to post bond. [Renfro v. State, 785 P.2d 491, 498 (Wyo.1990)] In accordance with this principle, a defendant is not entitled to credit against his sentence for the time he spent in custody while awaiting probation revocation pro-céedings because that confinement was not attributable to his financial inability to post bond. Milladge v. State, 900 P.2d 1156, 1160-61 (Wyo.1995).

Smith, 988 P.2d at 40. The record discloses that Young's confinement is solely attributable to his probation violation and the ensuing reyocation proceedings. Accordingly, the district court did not abuse its discretion in denying the motion to correct an illegal sentence.

CONCLUSION

[111] Confinements arising out of probation revocation proceedings are not attributable to a defendant's financial inability to post bond. Accordingly, the district court did not abuse its discretion when it denied Young's motion to correct an illegal sentence in which credit was sought for time served arising out of his probation revocation proceedings. Affirmed.