Anderson v. Larry H. Miller Communications Corp.

2015 UT App 134

THE UTAH COURT OF APPEALS

STEVEN ANDERSON,
Plaintiff and Appellant,
v.
LARRY H. MILLER COMMUNICATIONS
CORPORATION AND DEAN PAYNTER,
Defendants and Appellees.

Opinion
No. 20130997-CA
Filed May 29, 2015

Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 090909953

April L. Hollingsworth, Attorney for Appellant
Janet Hugie Smith, Scott A. Hagen, and Kimberly A.
Child, Attorneys for Appellees

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and JAMES Z. DAVIS concurred.

PEARCE, Judge:

¶1 Steven Anderson appeals from a jury verdict and
judgment in favor of Larry H. Miller Communications
Corporation (LHMCC) and Dean Paynter on Anderson’s claims
of fraud and promissory estoppel. We affirm.

BACKGROUND

¶2 In 2007, Anderson left his teaching job of twenty-eight
years to host KJZZ Café, a morning television program. KJZZ
Café aired on the KJZZ television station, which LHMCC owns.
Although Anderson and LHMCC never executed a written
 Anderson v. Larry H. Miller Commc’ns Corp.

contract, Anderson took the KJZZ Café job believing that he was
guaranteed an $80,000 annual salary for three years regardless of
whether KJZZ Café was successful. This belief resulted from
Anderson’s interactions with Paynter, who was LHMCC’s
Director of News and Program Development.

¶3 KJZZ Café was not successful. In November 2008,
LHMCC cancelled the show and terminated Anderson’s
employment. Anderson sued LHMCC and Paynter for the
remainder of the three years’ salary to which he believed he was
entitled, alleging breach of contract, promissory estoppel, fraud,
and breach of the covenant of good faith and fair dealing. The
district court granted summary judgment to LHMCC and
Paynter on all of Anderson’s claims. The district court concluded
that no contract existed to support the breach of contract and
covenant of good faith and fair dealing claims. The district court
further concluded that the promissory estoppel and fraud claims
could not survive, because Anderson had signed an
acknowledgement that he was an at-will employee and because
LHMCC had never represented that Anderson would have a
salary guarantee.

¶4 Anderson appealed from the district court’s ruling, and
this court affirmed in part and reversed in part. See Anderson v.
Larry H. Miller Commc’ns Corp., 2012 UT App 196, 284 P.3d 674.1
We affirmed the district court on the contract-related claims,
concluding that the only contract between the parties was one of
at-will employment and that the covenant of good faith and fair
dealing could not ‚inject a term of years into the contract when

1. Anderson v. Larry H. Miller Communications Corp., 2012 UT App
196, 284 P.3d 674, contains a substantially more detailed
recitation of the background facts regarding Anderson’s decision
to work for LHMCC. See id. ¶¶ 2–7. We repeat those facts here
only to the extent they are helpful to an understanding of the
issues in this appeal.

20130997-CA 2 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

the parties expressly agreed to an at-will relationship terminable
at any time.‛ Id. ¶¶ 12–18. However, we reversed the district
court on the promissory estoppel and fraud claims, holding that
there was a material question of fact as to Anderson’s reasonable
reliance on Paynter’s alleged statements and as to whether
Paynter made those statements on LHMCC’s behalf. See id.
¶¶ 19–24.

¶5 After remand to the district court, the matter proceeded to
a trial. About two weeks before trial, Anderson filed a motion
seeking leave to amend his complaint to add a claim for
intentional interference with economic relations. Several days
before trial, he filed a motion to have his promissory estoppel
claim tried to a jury instead of to the court. The district court
denied both motions.

¶6 Trial commenced as scheduled, with a jury empanelled to
consider Anderson’s fraud claim. The district court heard the
promissory estoppel claim as an equitable claim. The district
court interrupted Anderson’s counsel’s opening statement
several times, once upon objection by opposing counsel and at
least twice on its own initiative. The first interruption came after
Anderson’s counsel referred to fraud as a ‚moral‛ and
‚religious‛ tenet, described fraud as ‚bamboozl*ing+ someone,‛
and declared that it was her ‚great honor and privilege to . . . be
able to represent people like Steve Anderson, whose biggest
problem was [that] he trusted someone who was
untrustworthy.‛ The district court interrupted, stating,
‚Counsel, I think you’re going a little beyond opening statement
and argu—making an argument to the jury and I don’t think
that’s appropriate.‛ Anderson’s counsel inquired if she could
‚talk about the role of the jury,‛ and the district court
responded, ‚*Y]ou can talk to the jury on your argument in
closing, but you’re not to make your closing argument at the

20130997-CA 3 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

beginning of the case.‛ The district court also informed counsel
that it had ‚already told *the jurors+ what their role is.‛2

¶7 The next interruption occurred after Anderson’s counsel
began describing her ‚susp*icion+ that the defense is going to tell
you that Mr. Anderson wasn’t really harmed by what happened
here and therefore, you shouldn’t award him anything.‛ After
Anderson’s counsel stated that ‚the defendants are not absolved
of liability because of Mr. Anderson’s resourcefulness‛ and ‚the
fact that [Anderson] was able to claw his way back from a
situation that [LHMCC and Paynter] put him in has nothing to
do with their liability,‛ defense counsel objected that Anderson’s
counsel was making argument. The district court sustained the
defense objection without comment and without permitting
Anderson’s counsel to respond to the objection.

¶8 Anderson’s counsel immediately changed topics and
began talking about Larry H. Miller,3 the founder and namesake
of LHMCC:

[T]his case is not about Larry H. Miller as a man.
He was a very sick man when all this went down
and he died shortly thereafter. And from
everything that my client and I know about the
man, this is how I do not believe he would do
things and . . . .

At this point, the district court interrupted Anderson’s counsel
and stated, ‚Counsel, I’m going to stop you here. I told you not

2. Anderson characterizes this exchange as two interruptions,
while LHMCC and Paynter characterize it as one. The dispute is
not material to our analysis.

3. Larry H. Miller was a popular Utah business personality who
died in 2009.

20130997-CA 4 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

to make arguments, we’ve already instructed this jury that they
are not to consider passion, prejudice or sympathy when making
a decision and for you to argue that is improper, clearly
improper, you know it.‛ Anderson’s counsel then concluded her
opening statement with a statement that, at the end of trial, she
would be asking the jury to find in favor of Anderson.

¶9 After an opening statement from LHMCC and Paynter,
the parties presented evidence, primarily through Anderson’s
and Paynter’s testimony. During Anderson’s counsel’s
questioning, the district court sustained multiple objections from
defense counsel, often without allowing Anderson’s counsel an
opportunity to respond. The district court also disallowed some
of Anderson’s counsel’s questions without awaiting an objection
from LHMCC and Paynter.

¶10 On the morning of the second day of trial, Anderson’s
counsel cited the court’s evidentiary rulings in renewing
Anderson’s motion for a jury trial on the promissory estoppel
claim. The district court heard the renewed motion outside the
presence of the jury. Anderson’s counsel stated that one basis for
the renewed motion was that the court had ‚exhibited some
hostility towards [Anderson’s+ case.‛ The district court
responded,

I will tell you right now, I don’t have hostility
towards your case, I have hostility, if you will call
it that, when I make a ruling, yet you continue to
argue with me. And you made—clearly, you made
inappropriate arguments to the jury, that’s why I
stopped you. You are not to make a closing
argument for an opening statement, you are not to
appeal to the passion or prejudice of a jury, which
you did, and I told you you couldn’t, we have an
instruction that says you can’t do that and you did
it anyway. And when I make a ruling you argue
with me every time, you’re always arguing with

20130997-CA 5 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

me. I don’t have hostility towards the case, but
your attitude and your conduct is what’s causing
the problem here.

Anderson’s counsel replied by expressing her concern that she
had not been allowed to respond to objections. The district court
assured her that it would allow her such an opportunity going
forward. The parties presented the remainder of their evidence
without incident.

¶11 When it came time to instruct the jury on the fraud claim,
the parties disputed the proper measure of damages. Anderson
argued that he was entitled to expectation damages, which he
defines in his appellate brief as ‚the salary he was promised for
the two remaining years for which he was not paid by LHMCC,
minus the additional salary he earned by going back [to
teaching] full-time, which offset the salary loss from LHMCC.‛
LHMCC and Paynter argued that Anderson should be limited to
reliance damages, or the difference between what he actually
made from all employment over the relevant three-year period
and what he would have made had he remained at his teaching
job. The court instructed the jury that Anderson’s fraud
damages, ‚if any, are the difference between the compensation
he made before he accepted the KJZZ job and the compensation
that he made at all jobs after he accepted the KJZZ job, including
the compensation he made at the KJZZ job.‛

¶12 The jury found that Anderson had not proven his fraud
claim. Specifically, the jury answered ‚No‛ on the special verdict
form to questions asking, ‚Do you find by clear and convincing
evidence that [the defendants] committed fraud on Steve
Anderson?‛ The jury did not answer the remaining questions on
the special verdict form, which dealt with causation, damages,
and punitive damages.

¶13 After the jury returned its verdict, the district court
submitted one element of Anderson’s promissory estoppel

20130997-CA 6 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

claim—the question of Anderson’s reasonable reliance—to the
jury to assist the court in resolving that claim. The district court
allowed the parties a chance to address the jury on the
reasonable-reliance issue, and then sent the jury back into
deliberations with a second special verdict form stating, ‚Please
answer the following question based upon the instructions the
Court has provided, as modified. Do you find by a
preponderance of the evidence that Steve Anderson reasonably
relied upon the representations of Dean Paynter and/or KJZZ
TV?‛ The jury answered the question, ‚No.‛

¶14 After trial, the district court issued its decision dismissing
Anderson’s promissory estoppel claim with prejudice. The
district court found that Paynter had never promised Anderson
a guaranteed three-year salary and stated that, ‚*t+o the extent
that Mr. Anderson may have misunderstood Mr. Paynter to be
making a guarantee of three years’ employment or three years’
salary, the Court finds, in accordance with the jury’s advisory
verdict, that any reliance on such a statement was not
reasonable.‛

¶15 Anderson appeals from the final judgment in favor of
LHMCC and Paynter.

ISSUES AND STANDARDS OF REVIEW

¶16 Anderson argues that the district court violated his due
process right to a fair trial by repeatedly interrupting his
testimony and his counsel’s presentation of the case and by
improperly sustaining defense objections while denying
Anderson the opportunity to respond to them. ‚Constitutional
issues, including questions regarding due process, are questions
of law that we review for correctness.‛ Salt Lake City Corp. v.
Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990
(citation and internal quotation marks omitted).

20130997-CA 7 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶17 Anderson argues that the district court made numerous
erroneous evidentiary rulings, both on its own initiative and in
response to defense objections, often without giving Anderson
an opportunity to respond. ‚We review the district court’s
evidentiary rulings under an abuse of discretion standard.‛
Florez v. Schindler Elevator Corp., 2010 UT App 254, ¶ 8, 240 P.3d
107 (citation and internal quotation marks omitted). However,
error in the district court’s evidentiary rulings will result in
reversal only if the error is harmful. Woods v. Zeluff, 2007 UT
App 84, ¶ 5, 158 P.3d 552.

¶18 Anderson argues that the district court violated his
constitutional right to a jury trial on his promissory estoppel
claim by refusing Anderson’s request to try that claim to the jury
rather than to the bench. ‚Whether there is a right to a jury trial
is a question of law that we review for correctness.‛ Skypark
Airport Ass’n, LLC v. Jensen, 2013 UT App 229, ¶ 13, 311 P.3d 575
(citation and internal quotation marks omitted). However, in
cases that are not clearly legal or clearly equitable, it is for the
district court to determine ‚whether an issue is one in equity or
one in law wherein the party can insist on a jury as a matter of
right,‛ and we will not disturb that determination absent a
showing that it is ‚patently in error or an abuse of discretion.‛
Id. (citation and internal quotation marks omitted).

¶19 Anderson argues that the district court’s jury instructions
misstated the law on the measure of fraud damages. ‚The correct
measure of damages in a particular case is a question of law.‛
Richards v. Brown, 2009 UT App 315, ¶ 47, 222 P.3d 69, aff’d on
other grounds, 2012 UT 14, 274 P.3d 911. To obtain relief on
appeal, Anderson must demonstrate ‚both that the instruction
was inaccurate and that there is not a mere possibility, but a
reasonable likelihood that the error affected the result.‛ Stevensen
3rd E., LC v. Watts, 2009 UT App 137, ¶ 28, 210 P.3d 977 (citation
and internal quotation marks omitted).

20130997-CA 8 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶20 Finally, Anderson argues that the district court erred in
denying his motion to amend his complaint to add a claim of
intentional interference with economic relations. ‚We review a
district court’s denial of a plaintiff’s motion to amend a
complaint for abuse of discretion.‛ Davencourt at Pilgrims Landing
Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC, 2009 UT
65, ¶ 13, 221 P.3d 234.

ANALYSIS

I. Anderson’s Due Process Right to a Fair Trial

¶21 Anderson argues that ‚the district court’s treatment of his
case, his testimony, and his counsel was so damaging to his
credibility and to the presentation of evidence that it denied him
a right to a fair trial, in violation of his due process rights.‛
Anderson points to the district court’s multiple interruptions of
his counsel’s opening statement, one of which included the
admonition in front of the jury that her actions were ‚clearly
improper, *and+ you know it.‛ Anderson also relies on the
district court’s repeated sustaining of defense objections, without
allowing Anderson’s counsel to respond and often accompanied
by allegedly unfavorable comments directed at Anderson or his
counsel.4 Finally, Anderson relies on the district court’s
statement to Anderson’s counsel—outside the presence of the
jury—that ‚your attitude and your conduct is what’s causing the
problem here.‛ Anderson concludes that the district court’s
‚negative perception of Mr. Anderson and his counsel was
palpable at trial.‛

4. These comments included the district court’s admonition to
Anderson’s counsel not to interrupt opposing counsel and its
statement to Anderson that ‚it’s against the rules for you to tell
what somebody else said to you.‛

20130997-CA 9 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶22 Both the United States Constitution and the Utah
Constitution guarantee the right to due process. See U.S. Const.
amends. V, XIV; Utah Const. art. I, § 7. The Utah Supreme Court
has stated that ‚every person who brings a claim in a court . . .
has a due process right to receive a fair trial in front of a fair
tribunal.‛ Bunnell v. Industrial Comm’n, 740 P.2d 1331, 1333 (Utah
1987). We evaluate a due process claim under the totality of the
circumstances, cf. State v. Clark, 2014 UT App 56, ¶ 41, 322 P.3d
761, and ‚due process demands a new trial when the appearance
of unfairness is so plain that we are left with the abiding
impression that a reasonable person would find the hearing
unfair,‛ Bunnell, 740 P.2d at 1333 n.1.

¶23 In support of his argument, Anderson cites Bunnell v.
Industrial Commission, 740 P.2d 1331 (Utah 1987). There, the Utah
Supreme Court reversed a denial of disability benefits due to the
conduct of the administrative law judge (the ALJ) who had
presided over the hearing. Id. at 1333–34. The ALJ ‚chilled the
witnesses‛ to the point that the witnesses began to preface their
answers with statements such as ‚I don’t know whether this
would be allowed in the record or not‛ and ‚*a+m I out of line.‛
Id. at 1334 (alteration in original) (internal quotation marks
omitted). The ALJ indicated that he did not need to examine
medical records because he had already decided to rule against
the plaintiff. The ALJ also refused to listen to closing argument.
The supreme court ultimately concluded that the plaintiff’s due
process right to a fair trial was violated because

the administrative law judge insisted on strict
application of the hearsay rule although that rule
does not apply in administrative hearings; . . .
plaintiff’s witnesses were inhibited and
intimidated by the judge’s conduct, and felt
defensive and hesitant to testify; the judge
interfered with plaintiff’s counsel’s ability to make
a record and argue the evidence; and the judge

20130997-CA 10 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

gave the appearance of having decided the case
without even considering the medical records.

Id. at 1333.5

¶24 After examining the totality of the circumstances and
reviewing the trial transcript, we are not left with the impression
that Anderson’s trial was unfair. Indeed, the district court’s
actions in this case do not rise (or perhaps fall) to the level
Bunnell describes. There is no indication in the record that the
district court prevented Anderson from presenting his claims,
failed to consider Anderson’s evidence, or caused witnesses to
feel intimidated or self-censor their testimony for fear of
provoking the district court’s ire. We are sympathetic to
Anderson’s complaint that he faced a sometimes sharp and
critical response from the bench, but we are nevertheless
satisfied that he received ‚a fair trial in front of a fair tribunal.‛
See id.

¶25 Courts have rejected unfair-trial claims under
circumstances similar to this case. In United States v. Mobile
Materials, Inc., 881 F.2d 866 (10th Cir. 1989), the appellants
argued that ‚they were denied a fair trial because the judge was
impatient and angry with defense counsel throughout the trial.‛
Id. at 876–77. The appellants also claimed that the judge’s
manner conveyed the impression that he thought the case
unimportant and that they were not allowed to argue adverse

5. Two justices concluded that the ALJ’s conduct did not warrant
a new proceeding. See Bunnell v. Industrial Commission, 740 P.2d
1331, 1336 (Utah 1987) (Zimmerman, J., dissenting) (‚I think the
majority should be cautious lest the grounds that are used today
to overturn this proceeding in the name of fairness become a
standard attack upon administrative or judicial rulings
whenever some basis can be found in the record for arguing that
the judge’s behavior was less than ideal on any given day.‛).

20130997-CA 11 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

rulings. The Tenth Circuit Court of Appeals rejected the unfair-
trial claim, stating that parties are entitled to a ‚fair trial, not a
perfect one.‛ Id. at 877; see also United States v. Erickson, 561 F.3d
1150, 1167 (10th Cir. 2009) (stating that even where trial court
comments ‚suggested anger, or at least impatience,‛ with
counsel, ‚we can presume that jurors are capable of
distinguishing between a judge’s view of particular behavior by
counsel and the judge’s view of the merits of the case‛); United
States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987) (‚*R+eversal
is not mandated where . . . rebukes of defense counsel reflected
not upon the merits of the case but rather on the way it was
being handled.‛).

¶26 The district court’s actions in this matter are similar to
those examined in the cases rejecting claims of unfairness and
are considerably less objectionable than the actions of the ALJ in
Bunnell. The district court’s actions and comments fall within the
permissible level of give and take inherent in our adversarial
trial process. Under the totality of the circumstances, we are not
‚left with the abiding impression that a reasonable person would
find *Anderson’s trial+ unfair.‛ See Bunnell, 740 P.2d at 1333 n.1.
Accordingly, we conclude that Anderson received a trial that
comported with the requirements of due process.

II. Evidentiary Rulings

¶27 Anderson argues that the district court’s pattern of
defense-favorable evidentiary rulings over the course of trial
represents an abuse of discretion warranting reversal for a new
trial. Anderson alleges that ‚*t+he court rarely let Mr. Anderson’s
counsel respond to [defense] objections, but even when [his
counsel] was allowed to respond, the court ultimately upheld
the objections despite argument and the merits of the objection.‛
Anderson also argues that what he characterizes as the district
court’s ‚sua sponte objections‛ were improper. Thus, Anderson
argues errors of both substance and procedure.

20130997-CA 12 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶28 As to the substance of the district court’s evidentiary
rulings, Anderson’s appellate brief asserts that ‚*t+he occasions
in which the trial court improperly sustained objections are too
numerous to address each one substantively.‛6 Anderson
complains generally about the district court’s hearsay rulings,
arguing that the court failed to consider whether particular
testimony was being offered for the truth of the matter asserted,
that it ‚simply excluded any of Mr. Anderson’s testimony about
what anyone else said to him,‛ and that it directed Anderson
‚not to testify about what anyone else told him.‛ Anderson
argues that ‚*t+hese rulings were ‘beyond the limits of
reasonability,’ and therefore merit reversal.‛ (Quoting Jensen v.
IHC Hosps., Inc., 2003 UT 51, ¶ 57, 82 P.3d 1076.) Anderson also
identifies allegedly erroneous rulings premised on speculation,
double hearsay, argumentativeness, and lack of foundation.
Finally, Anderson appears to raise the doctrine of cumulative
error, arguing that ‚the combined effect of the 20 or so incidents
described in the facts *section of Anderson’s brief+ so influenced
the presentation of evidence that the only effective remedy is to
remand for a new trial.‛ See generally Lawrence v. MountainStar
Healthcare, 2014 UT App 40, ¶ 72 n.30, 320 P.3d 1037 (discussing
cumulative error doctrine).

¶29 As to the district court’s alleged procedural errors,
Anderson asserts that ‚the many occasions in which the court
sustained objections [without] waiting for a basis for the
objection or without giving Mr. Anderson’s counsel *an+
opportunity to respond were each an abuse of discretion,
notwithstanding the court’s view that it was entitled to make
such rulings ‘when it’s obvious.’‛ Anderson also argues that the
court should not have made evidentiary rulings on its own
initiative.

6. Anderson identifies over twenty-five separate evidentiary
rulings as allegedly objectionable.

20130997-CA 13 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶30 The district court ‚has broad discretion to admit or
exclude evidence.‛ Avalos v. TL Custom, LLC, 2014 UT App 156,
¶ 19, 330 P.3d 727. To obtain relief based on alleged errors in the
district court’s evidentiary rulings, Anderson must shoulder the
burden of demonstrating both error by the district court and
prejudice, i.e., ‚that there is a reasonable likelihood that a
different result would have been reached absent the error.‛ R.B.
v. L.B., 2014 UT App 270, ¶ 39, 339 P.3d 137 (citation and internal
quotation marks omitted). Anderson has not met this burden,
particularly as to the requirement that he show prejudice
resulting from any erroneous evidentiary rulings the district
court may have made.

¶31 We agree with LHMCC and Paynter’s general position
that many of the rulings Anderson identifies appear to be at least
potentially correct. However, even assuming error as to some or
even all of the challenged evidentiary rulings, Anderson has not
demonstrated that the disallowed testimony was reasonably
likely to have led to a more favorable result. Many of the
exchanges that Anderson identifies involved testimony that
appears tangential, at best, to the gravamen of his claims.
Despite the adverse rulings, Anderson was often allowed to
present the desired testimony either by rephrasing the question
(or answer) or after the district court reconsidered its ruling.
Further, the exchanges about which Anderson complains
represent only a small fraction of the questions and answers
presented over two days of testimony.

¶32 Ultimately, by keeping his arguments at a high level of
generality, Anderson has not persuaded us that any evidentiary
errors below were prejudicial to his claims. He has not identified
any ‚smoking gun‛ or important evidence that was wrongfully
excluded, and it appears that he was allowed to adequately
present his version of events in support of his claims. We are not
convinced that any evidentiary errors the district court may have
made, considered alone or together, created the ‚likelihood of a
different outcome . . . sufficiently high as to undermine our

20130997-CA 14 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

confidence in the verdict.‛ See Avalos, 2014 UT App 156, ¶ 24
(citation and internal quotation marks omitted). Accordingly,
Anderson has not demonstrated any prejudicial errors that
would warrant reversal of the judgment below. See id.

III. Jury Trial of Anderson’s Promissory Estoppel Claim

¶33 Anderson argues that the district court violated his right
to a jury trial by refusing to allow the jury to consider his
promissory estoppel claim. Anderson further argues that this
error was not cured when the district court submitted one
element of the promissory estoppel claim—whether Anderson
had proven by a preponderance of the evidence that he had
reasonably relied on a promise by LHMCC or Paynter—to the
jury after it had returned a defense verdict on Anderson’s fraud
claim.

¶34 We are not persuaded that the district court erred in
conducting a bench trial of Anderson’s promissory estoppel
claim. Trial to the bench, rather than to a jury, is the appropriate
method to resolve claims that sound in equity. Kenny v. Rich,
2008 UT App 209, ¶¶ 37–38, 186 P.3d 989. Thus, to demonstrate a
violation of the right to a jury trial, Anderson must establish that
the district court erred in determining that his promissory
estoppel claim was an equitable one. Where the legal or
equitable nature of a claim is not clear, the district court is
granted discretion to classify the claim as legal or equitable, and
we have previously held that we will not overturn such a ruling
absent an abuse of that discretion. See Skypark Airport Ass’n, LLC
v. Jensen, 2013 UT App 229, ¶ 13, 311 P.3d 575.7

7. This standard of review has existed in Utah case law since
1966. See Sweeney v. Happy Valley, Inc., 417 P.2d 126, 128-29 (Utah
1966). This court has employed the standard as recently as 2013.
See Skypark Airport Ass’n, LLC v. Jensen, 2013 UT App 229, ¶ 13,
(continued<)

20130997-CA 15 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶35 As the Utah Supreme Court explained in Sweeney v. Happy
Valley, Inc., 417 P.2d 126 (Utah 1966), this inquiry is fact driven
and must necessarily be performed on a case-by-case basis:

In circumstances where doubt exists as to whether
the cause should be regarded as one in equity, or
one in law wherein the party can insist on a jury as
a matter of right, the trial court should have some
latitude of discretion. In making that determination
it is not bound by the ostensible form of the action,
nor by the particular wording of the pleadings. It
may examine into the nature of the rights asserted
and the remedies sought in the light of the facts of
the case to ascertain which predominates; and from
that determination make the appropriate order as
to a jury or non-jury trial.

Id. at 128–29. Here, the district court evaluated Anderson’s
promissory estoppel claim and elected not to depart from the
general rule under Utah law that such claims are equitable in
nature. We will not disturb the district court’s ruling unless it
was ‚patently in error or an abuse of discretion.‛ Id. at 129.

(continued<)
311 P.3d 575. At first blush, it appears that the question of
whether a claim should be characterized as legal or equitable
more closely resembles a question of law to be reviewed for
correctness. What Sweeney and Skypark appear to recognize is
that a category of cases exists that will require the district court
to look beyond a party’s characterization of the relief sought. In
those cases, the district court must examine what, on the facts
presented, the party is actually asking the court (or jury) to do
and whether the relief the party seeks is more appropriately
characterized as legal or equitable. It appears that those types of
cases have motivated Utah courts to apply a more deferential
standard of review.

20130997-CA 16 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶36 ‚Promissory estoppel is an equitable claim for relief
which is normally tried to the bench.‛ Andreason v. Aetna Cas.
& Sur. Co., 848 P.2d 171, 174 (Utah Ct. App. 1993); see also Tolboe
Constr. Co. v. Staker Paving & Constr. Co., 682 P.2d 843, 849 (Utah
1984). Despite this general rule, Anderson argues that his
promissory estoppel claim is, in whole or in part, a legal claim
that should have been tried to the jury. Anderson contends that
even if his estoppel claim as a whole is equitable, it shares at
least one factual issue—reasonable reliance—with Anderson’s
legal claim for fraud. Anderson contends that because of this
commonality, he had a constitutional right to have the estoppel
claim tried to the jury. See Lytle v. Household Mfg., Inc., 494 U.S.
545, 550 (1990) (‚When legal and equitable claims are joined in
the same action, the right to jury trial on the legal claim,
including all issues common to both claims, remains intact.‛
(citation and internal quotation marks omitted)). Anderson also
asserts that his estoppel claim is legal, not equitable, because it
asks for money damages. See Dairy Queen, Inc. v. Wood, 369 U.S.
469, 476 (1962) (noting that ‚insofar as the complaint requests a
money judgment it presents a claim which is unquestionably
legal‛).

¶37 LHMCC and Paynter do not directly respond to
Anderson’s arguments. Instead, they rely on various
restatements of the general rule that promissory estoppel is an
equitable claim for which there is no right to a jury trial. See
Andreason, 848 P.2d at 174; see also Shields v. Thomas, 59 U.S. 253,
262 (1855); Tolboe Constr. Co., 682 P.2d at 845–46; Romrell v. Zions
First Nat’l Bank, NA, 611 P.2d 392, 394 (Utah 1980). LHMCC and
Paynter’s reliance on the general rule is not particularly helpful
here, as Anderson’s arguments seek to establish that because of
his request for money damages and the common issues of fact
with his fraud claim, his promissory estoppel claim is not the
‚normal*+‛ equitable claim that is ‚tried to the bench.‛ See
Andreason, 848 P.2d at 174.

20130997-CA 17 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶38 However, Anderson’s arguments do not convince us that
his promissory estoppel claim is necessarily a legal one.
Anderson asserts that the existence of a common issue between
the promissory estoppel and fraud claims created an
independent right to a jury trial on the estoppel claim. See Lytle,
494 U.S. at 550. We disagree. The mere existence of common
factual issues between a legal claim and an equitable claim does
not preclude a bench trial of the equitable claim. Zions First Nat’l
Bank v. Rocky Mountain Irrigation, Inc., 795 P.2d 658, 662 (Utah
1990). Rather, the district court must employ procedural
safeguards to ensure that the right to a jury trial on legal issues is
preserved. See id. (‚[W]hen legal and equitable issues turn on the
same operative facts, a jury must decide the legal issue first; the
jury’s factual determination binds the trial court in its
determination of the parallel equitable issue.‛). As explained in
Palace Exploration Co. v. Petroleum Development Co., 316 F.3d 1110
(10th Cir. 2003),

when a case involves both a jury trial and a bench
trial, any essential factual issues which are central
to both must be first tried to the jury, so that the
litigants’ Seventh Amendment jury trial rights are
not foreclosed on common factual issues.
Moreover, the court is bound by the jury’s
determination of factual issues common to both the
legal and equitable claims.

Id. at 1120 (citation and internal quotation marks omitted). The
district court appears to have complied with this procedure here,
and Anderson does not argue that it did not.

¶39 Anderson’s assertion of a blanket rule that a request for
money damages transforms an equitable claim into a legal one is
contrary to Utah law. See UTCO Assocs., Ltd. v. Zimmerman, 2001
UT App 117, ¶¶ 19–20 & n.3, 27 P.3d 177 (concluding that
promissory estoppel claim remained equitable despite seeking
monetary relief). Anderson also suggests that his claim is

20130997-CA 18 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

necessarily legal because ‚the damages sought are the
expectation damages available as contract damages.‛ But even if
contract damages were the appropriate measure of the amount
of damages here,8 Anderson fails to convincingly explain why
that would convert what is ordinarily an equitable claim into a
legal one.

¶40 As the appellant in this case, it is Anderson’s ‚burden to
demonstrate trial court error.‛ See Simmons Media Group, LLC v.
Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885. Anderson’s
arguments do not establish that the district court’s ruling that his
promissory estoppel claim was equitable in nature was ‚patently
in error or an abuse of discretion,‛ and we will therefore not
disturb the district court’s decision.9 See Sweeney v. Happy Valley,
Inc., 417 P.2d 126, 129 (Utah 1966).

IV. Fraud Damages Instruction

¶41 Anderson argues that the jury instruction on fraud
damages misstated the law applying to his claim. The district
court instructed the jury that Anderson’s ‚*fraud+ damages, if
any, are the difference between the compensation he made
before he accepted the KJZZ job and the compensation that he
made at all jobs after he accepted the KJZZ job, including the
compensation he made at the KJZZ job.‛ Anderson argues that a

8. We express no opinion on whether contract damages were the
appropriate remedy for promissory estoppel in this case.

9. Because we affirm the district court’s determination that
Anderson’s promissory estoppel claim was an equitable one for
which there was no right to a jury trial, we need not address the
effect of the jury’s determination that Anderson had not proved
one element of that claim—reasonable reliance—by a
preponderance of the evidence.

20130997-CA 19 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

proper instruction would have allowed for ‚expectation
damages,‛ or the difference between what he was promised and
what he actually earned in the three years after accepting the
KJZZ job.

¶42 We need not decide whether the fraud damages
instruction in this case inaccurately stated the law or was
otherwise inappropriate. Notwithstanding any flaw in the fraud
damages instruction, the jury never reached that instruction
because it found that Anderson had not proven fraud liability
against either Paynter or LHMCC.10 When a jury determines that
there is no liability on a cause of action, any error in the related
damages instruction becomes ‚irrelevant‛ and amounts to
harmless error. See King v. Fereday, 739 P.2d 618, 622 (Utah 1987)
(‚*T+he jury found defendant not negligent. The requested and
refused instruction went to the issue of damages. Because the
jury found lack of negligence as to defendant, the issue of
damages became irrelevant. Thus, the failure to give the
requested instruction, if error, was harmless.‛). That is what
occurred here, and we will therefore not disturb the jury’s
verdict notwithstanding the alleged error in the fraud damages
instruction.

V. Denial of Anderson’s Motion to Amend Complaint

¶43 Anderson argues that the district court erred in denying
his pretrial motion to amend his complaint to add a claim for
intentional interference with economic relations (IIER).
Anderson contends that the IIER claim ‚did not raise any new

10. The verdict form asked, as to both Paynter and LHMCC, ‚Do
you find by clear and convincing evidence that [the defendant]
committed fraud on Steve Anderson?‛ As to each defendant, the
jury answered ‚No.‛ The jury did not answer subsequent
questions on the form pertaining to causation and the amount of
damages.

20130997-CA 20 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

factual allegations, but merely provided an additional basis for
recovery on the facts already at issue.‛ Anderson argues that
leave to amend should be freely given when justice so requires,
see Utah R. Civ. P. 15(a), and that a district court abuses its
discretion by denying a motion to amend ‚absent a showing that
the amendment would be futile, that the defendant would suffer
‘unavoidable prejudice,’ or that the amendment is made in bad
faith.‛ (Quoting Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92–93
(Utah 1992).)

¶44 The district court has discretion to grant or deny a motion
to amend a complaint. Davencourt at Pilgrims Landing
Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC, 2009 UT
65, ¶ 13, 221 P.3d 234. In exercising that discretion, the district
court ordinarily considers three factors: ‚(1) the timeliness of the
motion; (2) the justification for delay; and (3) any resulting
prejudice to the responding party.‛ Turville v. J & J Props., LC,
2006 UT App 305, ¶ 31, 145 P.3d 1146 (citation and internal
quotation marks omitted). However, the district court retains
‚the leeway to evaluate the factual circumstances and legal
developments involved in each particular case,‛ and ‚a ruling
on a motion to amend may be predicated on only one or two of
the particular factors.‛ Id. (citation and internal quotation marks
omitted).

¶45 Here, the district court ruled on Anderson’s motion to
amend at a pretrial hearing. The hearing minutes indicate that
the district court denied the motion ‚*f+or reasons stated on the
record,‛ but the record on appeal does not contain a transcript of
the hearing. As the appellant, Anderson has ‚the duty and
responsibility to support [his] allegations with an adequate
record.‛ Gorostieta v. Parkinson, 2000 UT 99, ¶ 16, 17 P.3d 1110
(citation and internal quotation marks omitted). ‚When an
appellant fails to designate critical portions of the record as part
of the record on appeal, this court presumes the regularity of the
proceedings below.‛ In re adoption of A.M.O., 2014 UT App 171,

20130997-CA 21 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

¶ 12, 332 P.3d 372 (citations and internal quotation marks
omitted).

¶46 Without a record of the district court’s reasoning, we
cannot conclude that the district court abused its discretion in
denying Anderson’s motion to amend. Further, the district
court’s ruling appears consonant with the factors identified in
Turville v. J & J Properties, LC, 2006 UT App 305, 145 P.3d 1146.
Anderson filed the motion approximately two weeks before trial
with no justification for the delay other than the assertion that,
while drafting jury instructions for the upcoming trial, his
counsel ‚recognized that the facts Mr. Anderson has alleged also
support a claim for *IIER+.‛ See id. ¶ 31 (identifying ‚timeliness
of the motion‛ and ‚justification for delay‛ as factors a court
should consider when faced with a motion to amend (citation
and internal quotation marks omitted)). The motion to amend
also presented a likelihood of ‚prejudice to the responding
party,‛ see id. (citation and internal quotation marks omitted), as
LHMCC and Paynter would have had to either proceed to trial
on the IIER claim without asking for summary judgment or seek
further delay in order to do so. The IIER claim would also likely
have required further discovery, as it introduced several new
factual issues including whether LHMCC and Paynter
‚intentionally interfered‛ with Anderson’s school employment
for ‚an improper purpose or by improper means.‛ See Leigh
Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah 1982)
(stating elements of an IIER claim), overruled in part by Eldridge v.
Johndrow, 2015 UT 21, 345 P.3d 553 (concluding that, in the
absence of any improper means, an improper purpose is not
grounds for IIER liability).

¶47 Under these circumstances, Anderson has not
demonstrated an abuse of discretion by the district court.
Accordingly, we affirm the district court’s denial of Anderson’s
motion to amend.

20130997-CA 22 2015 UT App 134
 Anderson v. Larry H. Miller Commc’ns Corp.

CONCLUSION

¶48 The district court’s actions at trial, including its
evidentiary rulings, did not violate Anderson’s due process right
to a fair trial. Anderson has also not demonstrated that any
errors in the district court’s evidentiary rulings were prejudicial.
Anderson has not met his burden of persuading this court that
his promissory estoppel claim fell outside the general Utah rule
that such claims sound in equity. The jury’s determination that
Anderson had not proven fraud liability rendered harmless any
error in the jury instruction on fraud damages. Finally,
Anderson has not shown that the district court abused its
discretion in denying his motion to amend. For these reasons, we
affirm the district court’s final judgment in favor of LHMCC and
Paynter.

20130997-CA 23 2015 UT App 134