This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 30
IN THE
SUPREME COURT OF THE STATE OF UTAH
SHELLIE BIESELE and MELODIE JACOBSEN,
Appellees and Cross-Appellants,
v.
JODY MATTENA and MAY HARRIS,
Appellants and Cross-Appellees.
No. 20180226
Filed July 10, 2019
On Direct Appeal
Third District, Salt Lake County
The Honorable Patrick Corum
No. 140902798
Attorneys:
Matthew N. Evans, Matthew M. Cannon, Salt Lake City, for
appellees and cross-appellants
J. Angus Edwards, Bruce Wycoff, Salt Lake City, for appellant and
cross-appellee Jody Mattena
Jeffrey R. Oritt, Salt Lake City, for appellant and cross-appellee May
Harris
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN, and
JUDGE HAGEN joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein. COURT OF APPEALS JUDGE DIANA HAGEN sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Two sets of sisters—Shellie Biesele and Melodie Jacobsen,
and May Harris and Jody Mattena—were beneficiaries of an
inheritance from Royalene Thomas, respectively their stepmother
and mother. A family dispute concerning this inheritance escalated
BIESELE v. MATTENA
Opinion of the Court
into a trial, ultimately resulting in a jury verdict against Harris and
Mattena. The jury found that they committed a variety of torts in
relation to the inheritance and accordingly found them liable for a
considerable sum of compensatory and punitive damages. Both sets
of sisters now appeal various rulings made by the trial court during
the course of that proceeding.
¶2 Harris and Mattena contend that the trial court committed a
number of errors. First, they argue that the court erred by imposing
joint and several liability on certain damages and fee awards in
violation of the Liability Reform Act (“LRA”). Second, they assert
that the court should have bifurcated the trial into a liability phase
and a damages phase with respect to the punitive damages award.
Finally, they aver that the court erred by declining to strike the
punitive damages award as excessive. In their cross-appeal, Biesele
and Jacobsen argue that the court erred in declining to award them
expert witness fees.
¶3 We reject each of these arguments and affirm the trial court
across the board. Two of our holdings merit a brief preview here.
First, we conclude that the LRA’s provision for apportionment of
damages, Utah Code section 78B-5-818(4)(a), is mandatory only
upon a request by a party. We hold, in other words, that in the
absence of a request for apportionment, a trial court acts within its
discretion in falling back on the default of joint and several liability.
Second, we also interpret the terms of Utah Code section
78B-8-201(2), which provides that “[e]vidence of a party’s wealth or
financial condition shall be admissible only after a finding of liability
for punitive damages has been made.” We hold that this provision
does not mandate bifurcation of a punitive damages trial in a case in
which no party sought to introduce evidence of wealth or financial
condition. And we conclude that our case law does not require the
introduction of such evidence as a prerequisite to the availability of a
punitive damages award.
I
¶4 Shellie Biesele and Melodie Jacobsen (“Stepdaughters”) are
sisters. They are also half-sisters to May Harris and Jody Mattena
(“Daughters”). The two sets of sisters share the same father but have
different mothers. Royalene Thomas is the biological mother of
Daughters and the stepmother of Stepdaughters. Thomas suffered
from Alzheimer’s disease for a period of time and subsequently
passed away. She left an estate which included a trust (the “Trust”)
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and an IRA (the “IRA”). The Trust and the IRA are the subjects of the
instant lawsuit.
¶5 Stepdaughters brought suit against Daughters alleging that
they had engaged in tortious conduct during the period of Thomas’s
illness and death. Stepdaughters claimed that Daughters improperly
spent money from the Trust before Thomas’s death, exercised undue
influence over Thomas in order to convince her to disinherit
Stepdaughters, and failed to disburse money from the IRA to which
they (Stepdaughters) were entitled.
¶6 The dispute culminated in a five-day jury trial. At trial,
Stepdaughters alleged that Daughters committed a variety of
intentional torts. And they sought both compensatory and punitive
damages to compensate them for these wrongs. Despite the presence
of claims potentially giving rise to punitive damages, neither party
sought to introduce evidence concerning the wealth or financial
status of Daughters. The trial court thus saw no need to bifurcate the
trial, and allowed evidence regarding both the Daughters’ liability
for punitive damages and the amount of those damages.
¶7 On the last day of the trial, the parties discussed the use of a
special verdict form with the trial court. During that discussion,
Daughters raised a concern that there should be “no joint and several
liability” based on their reading of the LRA. Consistent with this
concern, the special verdict form they proposed requested
apportionment of fault for those claims relating to the Trust. The
form did not, however, request apportionment for claims relating to
the IRA. And the form the trial court eventually sent to the jury
contained an apportionment instruction for the Trust but not the
IRA.
¶8 The jury returned a verdict in favor of Stepdaughters on
every issue. The jury awarded Stepdaughters $197,064.54 in
compensatory damages for torts relating to the IRA. This award was
joint and several. The jury also awarded Stepdaughters $76,471.76
from Mattena and $35,019.16 from Harris in connection with the
Trust. Finally, the jury imposed punitive damages on each Daughter
in the amount of $308,555.46.
¶9 After the trial, Stepdaughters filed a motion for attorney
fees, costs, and expenses. Among the expenses they sought were the
fees they paid to an expert witness they retained. Some time after
that, Daughters filed a motion for judgment notwithstanding the
verdict. In that motion Daughters contended that the trial court erred
by refusing to bifurcate the trial into a liability phase and a damages
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Opinion of the Court
phase for the punitive damages claim. They also asserted that the
jury’s punitive damages awards could not be sustained because they
were improperly based on contract claims rather than tort claims.
The trial court subsequently issued a memorandum decision in
which it granted in part and denied in part Stepdaughters’ motion
for attorney fees, costs, and expenses (allowing only attorney fees)
and denied the Daughters’ motion for judgment notwithstanding the
verdict.
¶10 The trial court entered final judgment on January 5, 2018.
Daughters filed a rule 59 motion to alter the judgment, or in the
alternative, for a new trial on February 2, 2018. After the court
denied the motion, Daughters and Stepdaughters both filed notices
of appeal. Daughters raise three issues on appeal—as to (1) the
propriety of the imposition of joint and several liability for claims
relating to the IRA, (2) the trial court’s failure to bifurcate the trial,
and (3) the appropriateness of the punitive damages award. The
Stepdaughters raise one additional issue—whether the court erred in
declining to award them expert witness fees.
II
¶11 This case raises important questions under the Liability
Reform Act, UTAH CODE §§ 78B-5-817 et seq., and under Utah Code
section 78B-8-201(2), which provides that “[e]vidence of a party’s
wealth or financial condition shall be admissible only after a finding
of liability for punitive damages has been made.” In addition to
questions involving these statutes, the parties have raised issues
concerning the trial court’s refusal to strike the punitive damages
award as excessive and refusal to award expert witness fees to the
prevailing party below. On appeal, we must decide: (1) the proper
course of action under the LRA when neither party requests
apportionment of a damages award; (2) whether bifurcation of the
trial is mandatory in all cases where punitive damages are sought;
(3) whether the punitive damages award returned by the jury is
excessive; and (4) whether the trial court erred in refusing to award
expert witness fees. We affirm for reasons explained below.
A
¶12 The trial court imposed joint and several liability on
Daughters in two instances—for the damages associated with the
IRA and for the attorney fees awarded to Stepdaughters. We hold
that neither of these awards was in error.
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1
¶13 Daughters challenge the trial court’s imposition of joint and
several liability for damages based on their tortious conduct relating
to the IRA funds. Their argument raises questions of the application
and interpretation of the LRA, which we review for correctness.
Rodriguez v. Kroger Co., 2018 UT 25, ¶ 10, 422 P.3d 815.
¶14 The LRA is the statutory scheme governing apportionment
of fault in Utah. The operative provision of the LRA states that
“[s]ubject to Section 78B-5-818, the maximum amount for which a
defendant may be liable to any person seeking recovery is that
percentage or proportion of the damages equivalent to the
percentage or proportion of fault attributed to that defendant.”
UTAH CODE § 78B-5-820(1). Utah Code section 78B-5-818 establishes a
comparative negligence regime. And subsection 4(a) of 818 provides
“[t]he fact finder may, and when requested by a party shall, allocate
the percentage or proportion of fault attributable to each . . .
defendant.”1 Id. § 78B-5-818(4)(a).
¶15 Daughters claim that our case law interpreting these
provisions has established that joint and several liability is
categorically abolished in Utah. And they contend that the jury
verdict imposing such liability on the IRA claims must accordingly
be set aside.
¶16 Stepdaughters respond by pointing to the language of
section 818. Citing that provision, Stepdaughters assert that joint and
several liability is abolished only if and when a party requests
apportionment. And because Daughters never requested
apportionment, Stepdaughters insist that joint and several liability is
appropriate here.
¶17 This is an open question under our case law. We have, as
Daughters note, made seemingly sweeping statements about the
LRA’s effect of “eliminat[ing] joint and several liability.” See Bylsma
v. R.C. Willey, 2017 UT 85, ¶ 17, 416 P.3d 595 (stating that the LRA
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1 The full provision reads: “[t]he fact finder may, and when
requested by a party shall, allocate the percentage or proportion of
fault attributable to each person seeking recovery, to each defendant,
to any person immune from suit, and to any other person identified
under Subsection 78B-5-821(4) for whom there is a factual and legal
basis to allocate fault.”
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“was expressly designed to eliminate joint and several liability”); see
also Egbert v. Nissan Motor Co., 2010 UT 8, ¶ 38, 228 P.3d 737
(asserting that the LRA “not only favors apportionment, it demands
it”). But these broad-brush statements are not controlling. We have
never before confronted the question of whether the LRA’s
apportionment principles are mandatory even absent a request by
the parties. The LRA undoubtedly gave litigants a definitive method
by which they could “eliminate joint and several liability” in the
legal action at hand. But that leaves open the question whether
parties are required to avail themselves of that right. We confront
that question now. And we agree with the Stepdaughters.
¶18 The two cited provisions of the LRA may seem in tension at
first glance. But the tension is easily resolved. The most natural
reading of the statutory language is that the apportionment of fault
requirement is mandatory only if requested by one of the parties.
The operative statute mandates apportionment only “when
requested by a party.” UTAH CODE § 78B-5-818(4)(a). Otherwise,
apportionment is merely permissive. This is clear from the plain
language and structure of section 818, which provides that the fact
finder “may” apportion liability “to each defendant” (and to other
persons listed by statute) and states specifically that the fact finder
“shall” do so only “when requested by a party.” Id.
¶19 These terms of section 818 jibe best with the Stepdaughters’
position. It is a “settled canon” of statutory interpretation that we
seek to preserve the independent meaning of all statutory
provisions. See VCS, Inc. v. Utah Cmty. Bank, 2012 UT 89, ¶ 18, 293
P.3d 290 (noting that “preserving independent meaning for all
statutory provisions” is a “settled canon”). And it is difficult to
interpret the statutory provisions as the Daughters do—as
categorically abolishing joint and several liability—while also
affording meaning to the “may” and “shall” provisions of section
818. Those provisions suggest that apportionment is mandated only
upon a request by a party. In the absence of such a request the fact
finder retains the discretion to revert to joint and several liability.
¶20 This conclusion is entirely compatible with the statutory
directive that “the maximum amount for which a defendant may be
liable to any person seeking recovery is that percentage or
proportion of the damages equivalent to the percentage or
proportion of fault attributed to that defendant.” UTAH CODE
§ 78B-5-820(1). The quoted provision, after all, is expressly “[s]ubject
to Section 78B-5-818.” Id. And section 818, as noted, mandates
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apportionment only when it is “requested by a party.” Id.
§ 78B-5-818(4)(a).
¶21 This conclusion is also consistent with established principles
of waiver or forfeiture. “[M]ost all rights in our legal system” are
subject to waiver or forfeiture. State ex rel. M.H., 2014 UT 26, ¶ 32,
347 P.3d 368. The statutory right to apportionment of fault is no
exception. By statute, the failure to request apportionment effects a
waiver of a right that is otherwise available under the LRA. If a party
fails to request apportionment “[t]he fact finder may . . . allocate the
percentage or proportion of fault attributable to each . . . defendant.”
UTAH CODE § 78B-5-818(4)(a) (emphasis added). But the fact finder is
not required to do so.
¶22 This also makes practical sense. If neither party has
requested apportionment, the court may not be in a good position to
do so; the record may be lacking in evidence that could inform the
apportionment exercise. It accordingly makes sense to reserve some
discretion to the fact finder in such a case. And if the fact finder
declines to exercise that discretion, joint and several liability may
operate as a default fallback.2
¶23 The key question, then, is whether Daughters requested
apportionment in the district court. Daughters insist that they did so.
They point to seven filings they made in the trial court requesting
apportionment. But all of the cited filings were lodged after the trial
concluded. Post-trial motions cannot operate as requests for
apportionment because it is the fact finder that must apportion fault.
See UTAH CODE § 78B-5-818(4)(a) (“fact finder” may apportion fault).
And here, the jury operated as the fact finder. Any request for
apportionment should accordingly have been made at a time and in
a manner that would have allowed the jury to deliberate on the
evidence and allocate fault.
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2 This conclusion leaves unanswered a range of important
questions—as to the alternatives to joint and several liability that the
court may consider, whether the court may sua sponte ask whether
the parties would prefer apportionment, and what factors the court
should consider in exercising its discretion. We leave these questions
unanswered here, however, reserving them for a future case in
which these questions are squarely presented.
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¶24 A proposed special verdict form could function as such a
request.3 And Daughters did provide the trial court with one. But
notably, the form proposed by Daughters did not request
apportionment of damages associated with the IRA. It only
requested apportionment of damages awarded for torts relating to
the Trust. The natural inference from this omission is that Daughters
did not want apportionment of the IRA damages.
¶25 Because Daughters failed to request apportionment of the
IRA damages at trial, they have waived their entitlement to such
apportionment. And the district court did not err in falling back on a
default rule of joint and several liability.
2
¶26 Daughters also contend that the trial court’s attorney fees
award should have been apportioned. This argument fails under the
language of the LRA and under our precedents. The LRA does not
require apportionment of attorney fees.
¶27 This conclusion is mandated by the structure and text of the
statute. The LRA includes statutory provisions that deal specifically
with “attorney fees.” UTAH CODE §§ 78B-5-825 to -828. “Damages”
are a distinct matter addressed elsewhere in the LRA. See UTAH
CODE §§ 78B-5-819, 820. This structural feature of the LRA is
significant. It suggests that attorney fees and damages are distinct
and separate. And it indicates that the LRA provisions that speak to
apportionment of “damages” (without speaking to attorney fees) do
not extend to the imposition of “attorney fees.”
¶28 Our precedents are consistent with this view. We have held
that the LRA “does not require the court to award costs to a
prevailing party in [a] proportion equivalent to the percentage or
proportion of fault attributed to the defendant.” Rodriguez, 2018 UT
25, ¶ 35. This is because the LRA governs damages, and “costs are
distinct from damages. Costs arise out of litigation and are not
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3 In this situation at least. In other circumstances, such as when a
party seeks to apportion fault to someone not presently before the
court, the statute prescribes other methods. See, e.g., UTAH CODE
§ 78B-5-821(4) (requiring a party to file “a description of the factual
and legal basis on which fault can be allocated” before fault can be
apportioned to a non-party).
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dependent on fault. Damages . . . relate to a party’s injury and
depend on a party’s fault for detriment or injury sustained.” Id. ¶ 34.
¶29 This language admittedly speaks to “costs” rather than
attorney fees. But the reasoning in Rodriguez is equally applicable to
both. Like costs, attorney fees “arise out of litigation” rather than the
underlying claim. Id. And both costs and attorney fees are distinct
from damages in that they do not “depend on a party’s fault for
detriment or injury sustained.” Id. Daughters’ argument is thus also
foreclosed by Rodriguez.
¶30 Other than this statutory argument, Daughters have made
no attempt to show that the award of attorney fees was otherwise
unjustified or in error. We accordingly affirm the trial court’s fee
award.
B
¶31 Next we must decide whether the trial court should have
bifurcated the trial because Stepdaughters sought punitive damages.
To some extent this raises a question of statutory interpretation—as
to whether the governing statute requires bifurcation. On that
question our review is for correctness. Because we conclude that the
statute does not require bifurcation, however, there remains the
question whether the trial court erred in declining to bifurcate the
trial. On that question our review is under an abuse of discretion
standard. See Clayton v. Ford Motor Co., 2009 UT App 154, ¶ 9, 214
P.3d 865.
¶32 The threshold question concerns the meaning of Utah Code
section 78B-8-201(2). That section provides that “[e]vidence of a
party’s wealth or financial condition shall be admissible only after a
finding of liability for punitive damages has been made.” Daughters
urge us to read this statute to mandate a separate trial on the
question of liability for punitive damages. But nothing in this statute
sustains that broad requirement.
¶33 The statute does not bar the admission of all evidence
related to punitive damages until after a finding of liability for
punitive damages has been made. It just bars evidence of a “party’s
wealth or financial condition.” The clear implication is that
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Opinion of the Court
bifurcation is necessary only if evidence of wealth and/or financial
condition is going to be introduced.4
¶34 With this in mind, Daughters’ proposed interpretation—that
the punitive damages stage of a trial must always be bifurcated—can
be correct only if such evidence is mandatory in all cases in which
punitive damages are sought. But we have explicitly endorsed the
contrary proposition. In Hall v. Wal-Mart Stores Inc., we said that the
“plaintiff is not required to introduce evidence of a defendant’s
relative wealth” in order to obtain punitive damages. 959 P.2d 109,
113 (Utah 1998). This statement is crystal clear. And it is fatal to
Daughters’ position. Wealth evidence is not a prerequisite to an
award of punitive damages.5 And bifurcation of the punitive
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4 This description suggests Utah Code section 78B-8-201(2) may
effectively operate as either a rule of evidence (foreclosing
admissibility of wealth evidence in certain circumstances) or a rule
of procedure (mandating bifurcation of trial proceedings). If so, the
statute may at least arguably raise questions under article VIII of the
Utah Constitution—as to whether section 201(2) effects an
amendment to a rule of evidence or procedure, and whether the
legislature enacted it in accordance with the constitutional
prerequisites to such an amendment. See UTAH CONST. art. VIII, § 4
(providing that our rules of procedure and evidence may be
amended only “upon a vote of two-thirds of all members of both
houses of the Legislature”); Brown v. Cox, 2017 UT 3, ¶ 18, 387 P.3d
1040 (legislature may amend rules of evidence or procedure only by
joint resolution passed by a two-thirds vote of each house). We do
not reach these questions here, however, as neither party has asked
us to consider them.
5 We acknowledge that there is some tension in our case law on
this point. Two of our prior cases suggest that evidence of wealth or
financial condition may be necessary to the imposition of a punitive
damages award. See Bundy v. Century Equip. Co., 692 P.2d 754, 759
(Utah 1984); Nelson v. Jacobsen, 669 P.2d 1207, 1219 (Utah 1983). But
Hall is more recent than the cited cases, and explicitly distinguishes
them. See Hall v. Wal-Mart Stores Inc., 959 P.2d 109, 112 (Utah 1998).
The Hall standard is clear and straightforward and has not been
called into question by the parties. For these reasons we express no
opinion on the merits of that decision.
(continued . . .)
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damages stage is accordingly not required by statute in a case in
which the claimant has not sought to introduce evidence of wealth or
financial condition.
¶35 That leaves the question whether the trial court exceeded its
discretion in declining to bifurcate the trial in this case. Neither party
indicated an intent to introduce evidence of wealth or financial
condition before trial or at any time during trial. Daughters have not
pointed to any place in the record where they indicated that they
planned to introduce wealth evidence. This is fatal to their argument
on appeal. If either party had sought to introduce this type of
evidence, the trial court would have been required to bifurcate the
trial. But the trial court was not required to read Daughters’
collective mind and intuit an unmanifested desire to introduce such
evidence.6 Until and unless the trial court is made aware that the
parties wish to introduce wealth evidence, there is nothing to
bifurcate. We accordingly affirm the trial court’s decision not to
bifurcate the trial.
C
¶36 Having concluded that the award of punitive damages was
appropriate, even absent a bifurcated proceeding, we now turn to
the amount of those damages. Specifically, we must determine
whether the damages awarded in this case were excessive under the
framework we articulated in Crookston v. Fire Insurance Exchange, 817
P.2d 789 (Utah 1991). We conclude they are not.
¶37 Crookston establishes two different ratios for evaluating
whether a punitive damages award is “presumptively excessive”
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The current state of our law can thus be summarized as follows:
(1) wealth evidence is not necessary to an award of punitive
damages, but (2) consideration of such evidence may be necessary to
facilitate the evaluation of the “excessiveness” of such damages
under Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991). This
indicates that wealth evidence is not strictly required but may be
advisable. A plaintiff who does not put on evidence of a defendant’s
wealth assumes the risk that a punitive damages award may be
struck down as excessive.
6 See Hall, 959 P.2d at 113 (The defendant “must present to the
jury evidence of his inability to pay a large award of punitive
damages.”).
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under rule 59(a)(5) of the Utah Rules of Civil Procedure. If the
amount of punitive damages is less than $100,000, the award is
excessive if it exceeds actual damages by a ratio of greater than 3:1.
Id. at 810. If the amount of punitive damages is greater than $100,000,
“the acceptable ratio appears lower.” Id.7 If a damage award exceeds
the relevant ratio, it is “presumptively excessive” and the court must
then consider numerous factors in deciding whether to uphold the
award anyway. Id. at 811.
¶38 The damages figures in this case fall well within the bounds
of the ratios above. With respect to Mattena, the punitive damages
were $308,555.46 and the compensatory damages were $273,536.30
($76,471.76 relating to the trust plus $197,064.54 relating to the IRA).
With respect to Harris, the punitive damages were $308,555.46 and
the compensatory damages were $232,083.70 ($35,019.16 relating to
the trust plus $197,064.54 relating to the IRA). The ratios are
accordingly 1.128 and 1.330 respectively.8 Both ratios are well under
2:1 and thus certainly satisfy the Crookston requirement that the ratio
be “lower” than 3:1.
¶39 Daughters recognize this inconvenient fact. They try to get
around it by arguing that the compensatory damages relating to the
IRA are actually contract damages and therefore cannot be the basis
of punitive damages. They claim that their refusal to disburse funds
to Stepdaughters from the IRA stemmed from a misinterpretation of
the terms of the contract with Morgan Stanley. These damages, in
their view, should therefore not be counted in assessing the
excessiveness of the punitive damages. And the remaining tort
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7 We have never defined what, exactly, we mean by “lower.” It is
doubtful that any precise line can be drawn, given the inherent
arbitrariness of the ratios. Suffice it to say that the ratios in this case,
as discussed below, are low enough.
8 These damages figures do not “double count.” Although it is
true that the full amount of IRA damages was assessed against both
Mattena and Harris, that is simply a central feature of joint and
several liability. They are both liable for the full amount of those
damages. Of course, Stepdaughters will not be entitled to claim the
full amount from both defendants. But that does not change the fact
that they are entitled to collect the full amount from either defendant.
It is thus appropriate to include the full amount of the damages in
calculating the Crookston ratios.
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damages, Daughters assert, are insufficient to sustain the punitive
damages award under the Crookston ratios.
¶40 It is true that under Utah law punitive damages are not
available for breach of contract claims (unless the breach amounts to
an independent tort). See, e.g., Gregory & Swapp, PLLC v. Kranendonk,
2018 UT 36, ¶ 51, 424 P.3d 897. But Daughters’ argument fails
because the IRA damages are tort damages and not contract
damages.
¶41 The special verdict form the jury returned found Daughters
liable for a variety of intentional torts relating to the IRA. While the
first question on the form did ask the jury to interpret the terms of
the IRA contract, the remainder of the form explicitly found
Daughters liable for a laundry list of intentional torts, including
conversion, breach of fiduciary duty, and intentional interference
with Stepdaughters’ inheritance. The verdict is thus crystal clear that
Daughters’ liability sounds in tort, not contract.
¶42 It would make little sense to find that the IRA damages arise
from contract law. There is no contract between Daughters and
Stepdaughters. The only contract at issue is between Morgan Stanley
and Thomas’s estate. It would be absurd to allow Daughters to elude
tort liability by recasting this as a contract claim when the party
bringing the suit has no contractual relationship with the defendant. 9
If we were to go down this road, it would allow all manner of pure
tort claims to be transmuted into contract claims so long as the
defendant could point to some contract she claimed to be
interpreting. This would not be a sensible regime. As long as the jury
has returned a verdict finding the defendant liable for tort claims
that legitimately give rise to punitive damages, that is the end of the
inquiry.10
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9 We need not decide whether Stepdaughters could have brought
a contract suit on a third-party beneficiary theory. It is enough to
note that they asserted only tort claims, and that the jury found in
their favor on those claims.
10 This does not mean, of course, that parties are free to seek
punitive damages for claims that sound truly in contract. If there is a
contract between the parties to a suit, and the suit arises out of that
contract, it is unlikely that tort damages will be available. Doctrines
such as the economic loss rule will generally operate to prevent
parties from converting contract claims into tort claims in those
(continued . . .)
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¶43 Any challenges to the jury verdict should thus be made
under a sufficiency of the evidence framework. Daughters have
made no such challenge here. Having decided that the IRA damages
are properly categorized as tort damages, we conclude punitive
damages were proper. And as discussed above, we hold that the
ratio of punitive damages to compensatory damages is well below
the ratio permitted by Crookston. We affirm the award of punitive
damages on that basis.
D
¶44 Lastly, Stepdaughters appeal the trial court’s decision not to
award them expert witness fees. After the trial, Stepdaughters made
a motion for attorney fees and costs pursuant to Utah Code section
75-7-1004(1). Among other expenses, they sought reimbursement for
the fees paid to the expert witness they retained. The court declined
to award them these fees. We review this decision for an abuse of
discretion. See Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8,
¶ 59, 345 P.3d 531. And under that standard of review, we see no
basis to upset the trial court’s ruling.
¶45 Stepdaughters attempt to cast the trial court’s decision as
one that must be reviewed for correctness. They contend that this is a
matter of statutory interpretation, and that the trial court definitively
ruled that the governing statute, Utah Code section 75-7-1004(1),
does not allow expert witness fees to be awarded.
¶46 What the trial court actually said was that Stepdaughters
“devoted no effort in their briefing to elucidating which costs and
expenses, other than attorney's fees, are recoverable under section
1004(1).” And in the absence of such briefing, the court awarded
only attorney fees. This is not an order based on statutory
interpretation. It is an order based on Stepdaughters’ failure to carry
their burden of adequate briefing. It is not an abuse of discretion for
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instances. See, e.g., HealthBanc Int'l, LLC v. Synergy Worldwide, Inc.,
2018 UT 61, ¶ 12, 435 P.3d 193 (explaining that the economic loss rule
will often operate to bar tort claims based on an underlying breach
of contract).
14
Cite as: 2019 UT 30
Opinion of the Court
the trial court to decline to act as the research assistant for litigants.11
We accordingly affirm.
III
¶47 There was no error in imposing joint and several liability on
Daughters for the IRA damages, in declining to bifurcate the trial, in
the award of punitive damages, or in the exercise of the trial court’s
discretion to disallow expert witness fees. We accordingly affirm the
trial court on all grounds.
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11 To the extent that Stepdaughters now attempt to brief the
issues they failed to brief before the trial court, their arguments are
not preserved. We therefore decline to consider them.
15