October 24, 2013 Utah Court of Appeals Case Summaries

Jackson v. Halls, 2013 UT App 254, No. 20120913-CA (October 24, 2013)

ISSUES: Homestead Exemption, Collecting a Judgment via Writ of Execution on a Primary Personal Residence.

Judge Christiansen,

William C. Halls appeals from the district court’s denial of his motion to compel delivery of the cash value of his homestead exemption in certain property executed upon by Lee Jackson; Action Investment Services, LLC; and International Petroleum, LLC (collectively, Plaintiffs). We reverse and remand.

At ¶ 1.

The Utah Exemptions Act (the Act) creates a homestead exemption “consisting of property in this state in an amount not exceeding . . . $20,000 in value if the property claimed is the primary personal residence of the individual.” Utah Code Ann. § 78B-5-503(2)(a) (LexisNexis Supp. 2010). The Act further provides, “Property that includes a homestead may not be sold at execution if there is no bid that exceeds the amount of the declared homestead exemption.” Id. § 78B-5-504(5) (2008). Thus, a judgment creditor executing against a residence “is only entitled to receive those proceeds that do not impair the [debtor’s] homestead exemption.” Homeside Lending, Inc. v. Miller, 2001 UT App 247, ¶ 19, 31 P.3d 607. Accordingly, Halls was entitled to receive $20,000 from the proceeds of the sale on Plaintiffs’ bid of $425,000 before the remaining proceeds could be returned to Plaintiffs as the executing judgment creditor..

At ¶ 6.

Plaintiffs assert that because they satisfied their bid with a “credit” or “judgment” bid—a bid satisfied with a credit against the judgment owed rather than a cash payment—there were no cash proceeds from the sale and Halls is therefore not entitled to delivery of his exemption as a cash payment. . . .

At ¶ 7.

[W]e do not agree with Plaintiffs’ argument that because they satisfied their bid at the execution sale with a credit against the Judgment there were no proceeds of the sale from which Halls’ homestead exemption must be paid. Allowing the executing creditor to pay its winning bid by credit is merely a convenience to avoid the “useless ceremony” of payment to the sheriff by the very party which is entitled to receive the proceeds of the sale. See Title & Trust Co., 284 P. at 178. “The fact that the judgment creditor does not tender the cash to the sheriff . . . is irrelevant and in no way alters the character of the transaction as a sale of property purchased with cash.” Petrie v. General Contracting Co., 413 P.2d 600, 602 (Utah 1966) . . . Moreover, payment of the full bid amount by such a credit is predicated on the successful bidder being “solely entitled to whatever sums may have been bid for the property.” Holden, 561 S.E.2d at 638 (emphasis added).

At ¶ 8.

Here, the sheriff’s notice of sale provided that payment was to be made in cash. See 33 C.J.S. Executions § 380 (2009) (“Cash within the meaning of this rule generally means current legal tender or money . . . .”). Plaintiffs submitted a successful bid of $425,000 for Halls’ residence and were entitled to the proceeds from that bid in excess of Halls’ homestead exemption of $20,000 and any other superior claims or fees associated with the sale. See Homeside, 2001 UT App 247, ¶ 19. While Plaintiffs may have properly satisfied some part of their bid with a credit against the Judgment, they were required to pay cash for any part of the bid that they were not entitled to receive, which in this case includes the full amount necessary to satisfy Halls’ exemption. . . .

At ¶ 9.

The relevant provision of the Act states, “An individual is entitled to a homestead exemption consisting of property in this state in an amount not exceeding . . . $20,000 in value if the property claimed is the primary personal residence of the individual.” Utah Code Ann. § 78B-5-503(2)(a) (LexisNexis Supp. 2010). Plaintiffs assert that the legislature’s use of the term “value” in the definition of the exemption indicates that anything of value may be used to satisfy the exemption, such as a credit against the judgment executed upon. However, this provision of the Act speaks only to the scope of an individual’s homestead exemption and does not address how that exemption may be satisfied. Rather, the Act clearly contemplates that the exemption will be satisfied from the proceeds of the execution sale by protecting these very proceeds from further execution. See id. § 78B-5-503(5)(b) (“The proceeds of any sale, to the amount of the exemption existing at the time of sale, is exempt from levy, execution, or other process for one year after the receipt of the proceeds by the person entitled to the exemption.”). Plaintiffs’ reading of the statute would render the protections afforded by this provision meaningless here, as a credit to a judgment owed to one creditor provides nothing for another creditor to execute or levy upon.

At ¶ 11.

Moreover, Plaintiffs’ interpretation of the Act directly contravenes the purpose of the homestead exemption, which is to “protect citizens and their families from the miseries of destitution.” P.I.E. Emps. Fed. Credit Union v. Bass, 759 P.2d 1144, 1145 (Utah 1988). Allowing Plaintiffs to satisfy Halls’ exemption with a credit toward a judgment he is demonstrably unable to pay would provide him no such protection. Indeed, Plaintiffs’ interpretation in effect forces Halls to exchange his exemption for a credit against the Judgment. This result would render the homestead exemption a nullity and the legislature could not have intended such a result. Accordingly, we hold that the Act does not permit a creditor to satisfy a homestead exemption by giving the debtor “value” in the form of a credit to the judgment against the debtor.

At ¶ 12.

Halls is entitled to a homestead exemption of $20,000 from the proceeds of the execution sale. Plaintiffs must pay the portion of their bid comprising Halls’ homestead exemption in cash. Plaintiffs may not satisfy the homestead exemption by giving “value” in the form of a credit to the Judgment. We reverse the order of the district court and remand to the district court with instructions to grant Halls’ motion for payment of the homestead exemption by Plaintiffs.

At ¶ 13.

Portfolio Recovery Associates, LLC v. Migliore, 2013 UT App 255, No. 20120700-CA (October 24, 2013)

ISSUES:  Affidavit Foundation, Necessity of Documentation Supporting Affiant’s Statements, Business Records Exception To Hearsay Rule, Right to Cross-examine an Affiant, Motions to Extend Time to File Reply

Judge Christiansen,

Charles W. Migliore appeals the district court’s grant of summary judgment to Portfolio Recovery Associates, LLC (PRA) and the district court’s denial of his motion to amend that judgment. We affirm.

At ¶ 1.

Migliore’s principal argument on appeal is that the district court abused its discretion in denying his motion to strike and subsequently receiving and considering the two affidavits and the attached exhibits in ruling on PRA’s motion for summary judgment. We review a district court’s decision on a motion to strike affidavits submitted in support of or in opposition to a motion for summary judgment for an abuse of discretion. . . .

At ¶ 4.

Migliore first argues that the affidavit of David Sage, a representative of PRA, is inadmissible because the affidavit does not provide a factual foundation for the averments made therein, so that a “trier of fact could not independently assess whether Sage’s conclusory assertions were well-founded in fact.” Affidavits supporting a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Utah R. Civ. P. 56(e). However, “weighing credibility and assigning weight to conflicting evidence is not part of the district court’s role in determining summary judgment.” Martin v. Lauder, 2010 UT App 216, ¶ 14, 239 P.3d 519. Absent an indication that the averments are obviously outside the personal knowledge of the affiant or otherwise inadmissible, the district court may properly accept the affidavit at face value. . . . Thus, the district court did not abuse its discretion in accepting the Sage affidavit’s averments that Sage was a custodian of records for PRA and, by virtue of that position, had knowledge of PRA’s business records processes and personal knowledge regarding the Account. . . .

At ¶ 5.

Migliore next argues that Sage’s averment that “[the Account] was sold and/or assigned to [PRA] by Wells Fargo Bank” is inadmissible because the assignment document is not attached to the affidavit. See Utah R. Civ. P. 56(e) (“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”). However, the district court determined that Sage had personal knowledge that the Account had been assigned to PRA by Wells Fargo Bank based on his knowledge, memory, and review of PRA’s records. See Superior Receivable Servs. v. Pett, 2008 UT App 225, ¶ 10, 191 P.3d 31. If documents are to be introduced through an affidavit, sworn copies of such documents must be attached to the affidavit. See Utah R. Civ. P. 56(e). But it does not follow, and rule 56(e) does not on its face require, that all averments in an affidavit be supported by documentation. Id. Rather, an affiant may attest to facts within his personal knowledge notwithstanding that documentary evidence may exist to independently show the same facts. . . . Accordingly, the district court did not abuse its discretion in accepting Sage’s averment that the Account had been assigned to PRA by Wells Fargo Bank.

At ¶ 6.

Migliore also challenges the admission of a bill of sale and affidavit regarding the sale of accounts attached to the Sage affidavit. Migliore asserts that these documents are inadmissible hearsay because the Sage affidavit does not provide a proper foundation to admit the documents under the business records exception to the rule against hearsay. See Utah R. Evid. 803(6). The district court determined that the Sage affidavit included sufficient foundation to admit the documents as business records. This determination was within the district court’s discretion. As discussed above, the district court was entitled to take the averments in the Sage affidavit regarding Sage’s qualifications as a records custodian at face value. Sage attested that he was an authorized representative and custodian of records for PRA and that he was familiar with the manner and method by which PRA maintained its books and records—specifically the manner and method by which it maintained its records of assigned debts. This is a sufficient evidentiary basis for the district court’s determination that an adequate foundation existed to receive the attached documents as business records. See Superior Receivable Servs., 2008 UT App 225, ¶ 10 & n.2. The district court therefore did not abuse its discretion in denying Migliore’s motion to strike the Sage affidavit and the exhibits thereto.

At ¶ 7.

Migliore next argues that the affidavit of Miriam Olguin and the documents attached thereto are inadmissible. First, Migliore asserts that the affidavit did not provide an adequate foundation to establish Olguin as a records custodian for Wells Fargo Bank. In her affidavit, Olguin attests that she is the custodian of records for the attached documents and certifies the authenticity of the documents in compliance with the requirements of the business records exception, see Utah R. Evid. 803(6). For the same reasons discussed above, we conclude that the district court did not abuse its discretion in accepting these averments and in determining that the Olguin affidavit provided sufficient foundation to admit the attached documents. See supra ¶¶ 5–7.

At ¶ 8.

Migliore also argues that the Olguin affidavit is inadmissible because Wells Fargo Bank reserved the right to designate another custodian of records in the event that an appearance was required. Migliore argues that the affidavit is equivalent to direct testimony by Olguin and that the affidavit is therefore inadmissible unless Olguin herself can be cross-examined. However, our supreme court has observed that, unlike a deponent, an affiant is not subject to cross-examination. Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983). Migliore asserts that our decision should be governed by cases which hold that an affidavit may be struck if the affiant later invokes her Fifth Amendment privilege at a deposition or trial in order to shield the affidavit testimony from scrutiny. See, e.g., United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990) . . .  However, Migliore has never attempted to depose Olguin or any other representative of Wells Fargo Bank in order to test the foundational averments made by Olguin in her declaration. See Utah R. Civ. P. 56(e) (“The court may permit affidavits to be supplemented or opposed by depositions . . . .”). Migliore has also not shown, or even suggested, that another Wells Fargo Bank representative would not have been able to establish the necessary foundation to admit the supporting documents. See Utah R. Evid. 803(6)(D) (requiring that all conditions of the business records exception be “shown by the testimony of the custodian or another qualified witness”). We conclude that Migliore has identified no legal principle that requires the exclusion of an affidavit under these circumstances, and thus Migliore has failed to demonstrate that the district court abused its discretion in receiving the Olguin affidavit and supporting documents.

At ¶ 9.

. . . Because Migliore failed to file responsive affidavits or other admissible evidence, the facts are undisputed.

At ¶ 11.

The Court outlines the undisputed facts and finds that they support a breach of contract claim.

At ¶¶ 12-13.

. . . While Migliore argues that he may merely be an authorized user of the Account, rather than the cardholder, both the district court and this court are constrained to draw reasonable inferences from the evidence. See Orvis, 2008 UT 2, ¶ 6. There is no evidence in the record before us from which we could infer that there was another cardholder to whom the Account was issued who merely authorized Migliore’s use. Accordingly, we conclude that PRA was entitled to judgment as a matter of law.

At ¶ 13.

Migliore also asserts that the district court abused its discretion in denying his motion to extend time to file reply memoranda in support of his motion to strike the Sage and Olguin affidavits. Migliore argues that the district court used the wrong standard in evaluating his motion to extend time under rule 6(b) of the Utah Rules of Civil Procedure and thereby abused its discretion. However, even if we determined that the district court used the wrong standard, “we will not reverse a judgment merely because there may have been error; reversal occurs only if the error is such that there is a reasonable likelihood that, in its absence, there would have been a result more favorable to the complaining party.” Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶ 50, 37 P.3d 1130 (citation and internal quotation marks omitted). Thus, to merit reversal, Migliore would need to demonstrate that there is a reasonable likelihood that he would have obtained a more favorable result on his motion to strike the Sage and Olguin affidavits if the district court had granted the time extension for Migliore to file reply memoranda. However, Migliore’s reply memoranda were attached as exhibits to his rule 59 motion to amend the district court’s entry of summary judgment. As a result, the district court had Migliore’s reply memoranda before it when it ruled on the rule 59 motion and again rejected Migliore’s challenges to the admissibility of the Sage and Olguin affidavits. Accordingly, there is no likelihood that Migliore would have obtained a more favorable result if the district court had granted his request for a time extension to file the memoranda in the first instance. Therefore, any abuse of discretion by the district court in denying that request would be harmless and would not merit reversal. See State v. Otterson, 2008 UT App 139, ¶¶ 16, 26, 184 P.3d 604.

At ¶ 15.

America First Credit Union v. Kier Construction Corp., 2013 UT App 256, No. 20101036-CA (October 24, 2013)

ISSUES: Commercial General Liability Insurance, Contractual Interpretation, Subcontractor Defined

Judge Christiansen,

Owners Insurance Company (Owners) challenges the district court’s denial of its motion for summary judgment. We reverse and remand.

At ¶ 1.

The Court outlines the facts of this case, Specifically quoting the relevant coverage provisions of Owner’s insurance contract with the insured, Kier and Broberg.

At ¶¶ 2-3.

After AFCU filed a breach of contract action against Kier alleging defective construction due to the cracking and failing of the exterior masonry work on the building, Kier filed a third‐party complaint against Broberg and Owners. Owners filed a motion for summary judgment, arguing that the CGL policy did not provide coverage to Kier for AFCU’s claims against it under these circumstances. The district court ruled that the CGL policy did provide coverage to Kier and denied Owners’ motion for summary judgment. Specifically, the district court determined that a covered “occurrence” had taken place because Kier, the general contractor, did not expect to be liable for any damages arising from a subcontractor’s faulty work; that the damage to the building’s exterior was “property damage”; and that none of the CGL policy’s exclusions applied to limit Owners’ duty to defend and indemnify Kier. Owners challenges those determinations through an interlocutory appeal, which this court granted.

At ¶ 4.

Owners argues that the district court erroneously interpreted the CGL policy and denied its motion for summary judgment. . . .

At ¶ 5.

Owners challenges the district court’s determinations that the failure of the veneer constituted an “occurrence” involving “property damage” sufficient to trigger coverage under the CGL policy. We need not reach those issues, however, because we are persuaded by Owners’ argument that the CGL policy excludes coverage for the damage at issue here.

At ¶ 6.

In evaluating whether the exclusions in subsections k and l applied to bar coverage of defects in the building’s veneer, the district court explicitly determined that “‘[y]ou’ refers to the named insured, i.e., Kier.” Owners argues that the district court erroneously identified Kier as the named insured—and therefore as “you”—under the CGL policy. We agree with Owners.

At ¶ 9.

“[I]n the absence of ambiguity, we interpret the terms of an insurance policy according to their plain meaning.” Pollard, 2001 UT App 120, ¶ 7 (citation and internal quotation marks omitted). The CGL policy states, “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy.” The only Named Insured identified in the CGL policy Declarations is Broberg. The only provision in the CGL policy that provides for entities other than those identified in the Declarations to qualify as a Named Insured is Section II(4). Section II(4) provides for an entity newly acquired or formed by “you” (the Named Insured) to qualify as a Named Insured itself under certain circumstances. Any other person qualified under the CGL policy is merely an “insured,” and not a Named Insured. The endorsement adds Kier to the CGL policy as an Additional Insured, not a Named Insured, and Kier does not qualify as a Named Insured under any other provision of the CGL policy. Accordingly, as used in the CGL policy, “you” and “your” refer only to Broberg, the Named Insured shown in the Declarations. Thus, the district court erred in concluding that Kier was a Named Insured under the CGL policy and that “you” referred to Kier. . . .

At ¶ 10.

. . . [P]rovisions in the CGL policy exclude coverage for “‘[p]roperty damage’ to ‘your product’ arising out of it or any part of it” (Exclusion k) and “‘[p]roperty damage’ to ‘your work’ arising out of it or any part of it and including in it the ‘products-completed operations hazard’” (Exclusion l). Because we have determined that “you” and “your” as used in the policy refer only to Broberg, the district court erred in evaluating Exclusion k and Exclusion l from the standpoint of Kier, rather than Broberg. Thus, read correctly, the policy excludes coverage for “‘[p]roperty damage’ to ‘[Broberg’s] product’ arising out of it or any part of it” and “‘[p]roperty damage’ to ‘[Broberg’s] work’ arising out of it or any part of it.”

At ¶ 11.

Kier argues that even under the correct reading of the CGL policy, the subcontractor exception to Exclusion l nevertheless restores coverage for damage to the veneer because “the manufacturer of the stone veneer Broberg installed . . . is a subcontractor of Broberg” under Jacobsen Construction Co. v. Industrial Indemnity Co., 657 P.2d 1325 (Utah 1983). “A subcontractor means one who has contracted with the original contractor for the performance of all or a part of the work or services which such contractor has himself contracted to perform.” Id. at 1327. We do not agree that the stone veneer constitutes work performed on Broberg’s behalf by a subcontractor simply because Broberg purchased the material to install the stone veneer from a manufacturer of stone products.

At ¶ 15.

Here, Kier does not develop its argument that the stone manufacturer was a subcontractor of Broberg beyond the conclusory statement that, as the manufacturer of the stone product used in the veneer, it was a subcontractor under Jacobsen. Kier does not argue that the stone was custom fabricated or cite any record evidence suggesting that it was. Kier’s only relevant factual claim is that “Broberg purchased the manufactured stone veneer product used on the project from [the manufacturer].” Based on the record before us, which demonstrates only that Broberg purchased materials from the stone manufacturer, we do not agree that the stone manufacturer was a subcontractor under Jacobsen.

At ¶ 17.

The district court erred in determining that Kier was a Named Insured under the CGL policy and therefore the subject of the CGL policy’s exclusions for damage to “your work” and “your product.” Properly interpreted, these exclusions bar coverage for AFCU’s alleged damages, and Owners is not liable to cover these damages under the CGL policy as a matter of law. We reverse the district court’s denial of Owners’ summary judgment motion and remand for entry of summary judgment in favor of Owners.

At ¶ 19.

State v. Bergeson, 2013 UT App 257, No. 20120193-CA (October 24, 2013)

ISSUES: Motion to Suppress, Failure to Challenge Trial Court’s Ruling, Prejudice

Senior Judge Bench,

Defendant Wayne Jay Bergeson appeals from his convictions of multiple counts of sexual exploitation of a minor and possession of a dangerous weapon by a restricted person. He argues that the district court erred by denying his Request to Amend Motion to Suppress Evidence and by denying his motion to suppress. We affirm.

At ¶ 1.

This matter was before this court on a prior appeal wherein Defendant argued that the district court erred in refusing to consider his motion to suppress evidence. State v. Bergeson, 2010 UT App 281, ¶ 1, 241 P.3d 777. This court reversed and remanded the case for consideration of the suppression motion. Id. ¶ 9. On remand, with new counsel, Defendant filed a motion to amend the previously filed suppression motion to include three additional issues. The district court denied Defendant’s motion to amend based on its determination that this court’s directions on remand required the district court to consider only the merits of the previously filed motion to suppress.

At ¶ 2.

Defendant’s original suppression motion, . . . raised two issues: (1) whether Detective Mark Buhman’s use of specialized software developed by and available only to law enforcement personnel constituted an illegal search, and (2) whether the affidavit in support of the search warrant was misleading because it did not mention the use of the specialized software. At the suppression hearing, Defendant sought to introduce the search warrant and the affidavit in support of the search warrant. The court denied the admission of the documents on the ground that they were not attached to the original motion to suppress. The State called Detective Buhman to testify about the specialized software at issue. He testified that the software “only organized publically available information,” making it “faster and smoother” for him “to shuffle through all those IP addresses.

At ¶ 4.

After arguments, the district court determined that Defendant’s second issue pertaining to the allegedly misleading affidavit was not preserved because his former counsel had failed to introduce into evidence a copy of the search warrant and accompanying affidavit. The court then addressed the merits of Defendant’s first issue and found that Detective Buhman’s use of the software did not constitute a search [because there is no expectation of privacy in a computer IP address which is publicly available when a user voluntarily joins a peer to peer file sharing network.]

At ¶ 5.

The district court determined that Detective Buhman’s use of the specialized software did not constitute a search. Thus, it follows that if the detective’s use of the software was not an illegal search, any failure to mention its use in the affidavit was not prejudicially misleading. Because Defendant does not challenge the district court’s ruling that the software use did not constitute a search—which controls the second issue about the sufficiency of the affidavit—we decline to reverse the court’s suppression ruling. Cf. Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38 (“This court will not reverse a ruling of the trial court that rests on independent alternative grounds where the appellant challenges only one of those grounds.”).

At ¶ 6.

Defendant next argues that the district court erred in denying his post‐remand motion to amend his suppression motion. . . . We agree with Defendant that the district court erred when it denied his motion to amend solely on the basis of our prior remand language.

At ¶ 7.

Although we conclude that the district court interpreted the remand language too narrowly, Defendant is entitled to relief on appeal only if he can demonstrate prejudice resulting from the district court’s error. “[W]e will not reverse [the] trial court for committing harmless error,” State v. Vargas, 2001 UT 5, ¶ 48, 20 P.3d 271 (second alteration in original) (citation and internal quotation marks omitted), and the burden is on Defendant to “show that the court’s ruling led to a likelihood of prejudice,” see id. (citation and internal quotation marks omitted). Here, Defendant has made no showing whatsoever that the issues he sought to raise in his motion to amend—all of which pertain to the State’s use of an administrative subpoena to obtain Defendant’s subscriber information from his internet provider—had any likelihood of being deemed meritorious. Because Defendant has failed to make such a showing, we conclude that the district court’s error in denying his motion to amend was harmless.

At ¶ 9.

The Court rejects Defendant’s ineffective assistance of counsel argument because

Defendant makes no effort to demonstrate that but for counsel’s failure to more timely file the motion to suppress with supporting documents, the court would have suppressed the evidence. And, as discussed above, Defendant has failed to make a showing that the issues ultimately raised in his post‐remand motion to amend had any likelihood of prevailing. See supra ¶ 9. Without showing prejudice, Defendant cannot sustain his claim for ineffective assistance of counsel.

At ¶ 10.

We conclude that Defendant has failed to challenge the district court’s conclusion that the use of software to identify his IP address did not constitute a search. Defendant has also failed to make any showing that the issues raised in his motion to amend his suppression motion possessed merit. For these reasons, Defendant has failed to demonstrate error in the denial of his motion to suppress, harmful error in the denial of his motion to amend, or ineffective assistance by his trial counsel. Affirmed.

At ¶ 11.

October 18, 2013 Utah Supreme Court Case Summaries

Sewell v. Express Lube, 2013 UT 61, No. 20120445 (October 18, 2013)

ISSUES: Jurisdiction, Service of Process on a Sole Proprietorship, Rule 60(b), Damages After Default

Justice Parrish,

Xpress Lube appeals from the district court’s order denying its motion to set aside a default judgment in favor of Larry Sewell. . . .

At ¶ 1.

A process server left copies of the summons and complaint with an Xpress Lube employee. Anderson found the summons and complaint several days later and immediately sent them to his insurance agent. The agent attempted to fax the complaint to Travelers, but apparently misdialed the fax number and Travelers never received it.

At ¶ 2.

The Court outlines the factual and procedural background of this case.

At ¶¶ 2-14.

Jurisdiction

Utah Rule of Civil Procedure 60(b)(4) provides that “the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding . . . [when] the judgment is void.” “A judgment is void under rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter, or parties or the judgment was entered without the notice required by due process.” Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 18, 270 P.3d 456 (internal quotation marks omitted). This is true “even absent a separate meritorious defense. The court’s lack of jurisdiction is alone sufficient to void its judgment.” Id. ¶ 15 (footnote omitted). “A motion under rule 60(b)(4) . . . could succeed on the basis of a mere showing that the judgment was void because of some defect in the court’s authority over the case or the parties.” Id. ¶ 16. Therefore, “[i]f a judgment is entered by a court that lacks jurisdiction, justice is furthered by setting that judgment aside as void under rule 60(b)(4).” Id. ¶ 15.

At ¶ 16.

Xpress Lube argues that the judgment is void. Specifically, it argues that the process server’s decision to simply leave copies of the summons and complaint with Deuel, a mere employee of Xpress Lube, did not constitute proper service under rule 4 of the Utah Rules of Civil Procedure. Sewell disagrees. He argues that the “only thing that matters is that the employee in question was completely responsible for all of Appellant’s operations and assets, thus satisfying [r]ule 4’s requirements for service upon a ‘person in charge.’” 

At ¶ 19.

Sewell’s argument is misplaced because it relies on the wrong subsection of rule 4. Sewell relies on rule 4(d)(1)(E), which states that service on a corporation, partnership, or unincorporated association subject to suit under a common name shall be made “by delivering a copy of the summons and the complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process.” But Xpress Lube is not a corporation, partnership, or unincorporated association. Rather, it is a sole proprietorship of Anderson. Thus, rule 4(d)(1)(E) does not apply.

At ¶ 20.

The defendant named in Sewell’s complaint is “Xpress Lube, a Utah business entity.” Anderson is the sole proprietor of Xpress Lube. Because “[a] proprietorship has no formal legal existence . . .[t]he proper defendant in such a circumstance is the individual owner of the business.” JAMES J. BROWN, JUDGMENT ENFORCEMENT § 11.03 (3d ed. 2009). See also Bonneville Billing & Collection v. Johnston, 1999 UT 92, ¶ 4, 987 P.2d 600 (finding service proper where an individual doing business as J.C. Johnson Company was served at his residence). Thus, to serve a sole proprietorship, the sole proprietor must be served under rule 4(d)(1)(A)

At ¶ 21.

While we acknowledge that Anderson became aware of the lawsuit when he found copies of the summons and complaint on his desk, that knowledge does not substitute for proper service. . . .

At ¶ 23.

The district court lacked jurisdiction to enter the default judgment. To serve a sole proprietorship, the sole proprietor must be served. That did not happen in this case. As a result, the default judgment is void under rule 60(b)(4) of the Utah Rules of Civil Procedure.

At ¶ 25.

Rule 60(b)

[Alternatively, u]nder rule 60(b)(1), “the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” We have stated that “a movant is entitled to have a default judgment set aside under 60(b) if (1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense.” Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480. We consider each of these requirements in turn.

At ¶ 27.

A motion to set aside a default judgment under subsection (1) is timely if it is made “within a reasonable time and . . . not more than  months after the judgment . . . was entered.” UTAH R. CIV. P. 60(b). There is no dispute that Anderson’s motion was timely. . . 

At ¶ 28.

Rule 60(b)(1) provides for relief from a default judgment entered as a result of mistake, inadvertence, surprise, or excusable neglect. To qualify for relief under rule 60(b)(1), a party must show he has used due diligence. Due diligence is established where the “failure to act was the result of . . . the neglect one would expect from a reasonably prudent person under similar circumstances.” Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 27, 270 P.3d 456 (internal quotation marks omitted). We conclude Xpress Lube also satisfies this prong of the test.

At ¶ 29.

The Court outlines the facts supporting the conclusion that there is a basis for relief, i.e. mistake, inadvertence, surprise, or excusable neglect.

At ¶¶ 30-32.

Having found that there is a basis for granting relief under rule 60(b)(1), we now move to the third part of the test, which requires us to consider whether Anderson has alleged a meritorious defense. “The assertion of a meritorious defense under rule 60(b) requires only a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the claimant or counterclaimant.” Judson, 2012 UT 6, ¶ 23 (internal quotation marks omitted). This requires “that a party state the basis for its claims or defenses in short and plain terms.” Id. (internal quotation marks omitted). “The purpose of the meritorious defense rule is to prevent the necessity of judicial review of questions which, on the face of the pleadings, are frivolous.” Lund v. Brown, 2000 UT 75, ¶ 28, 11 P.3d 277 (internal quotation marks omitted). “Thus, where a party presents a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the claimant or counterclaimant, it has adequately shown a nonfrivolous and meritorious defense for the purposes of its motion to set aside a default judgment.” Id. ¶ 29.

At ¶ 33.

Here, Xpress Lube has alleged several meritorious defenses.  [The Court outlines the alleged defenses].

At ¶ 34.

Damages

Xpress Lube alternatively argues that the district court “abused its discretion by entering a default judgment in the amount of $600,000 without any hearing or notice of any hearing on damages.” Sewell counters that an evidentiary hearing was not required because damages are “sufficiently defined.” We agree with Xpress Lube.

At ¶ 35.

Under rule 55(b)(2) of the Utah Rules of Civil Procedure, in a default proceeding, “the court may conduct such hearings or order such references as it deems necessary and proper” if “it is necessary to take an account or to determine the amount of damages.” “As a general rule, a default judgment establishes, as a matter of law, that defendants are liable to plaintiff as to each cause of action alleged in the complaint.” Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 965 (Utah Ct. App. 1989) (internal quotation marks omitted). But “it is still incumbent upon the non-defaulting party to establish by competent evidence the amount of recoverable damages and costs he claims.” Id. “[E]ven defaulting defendants should usually be afforded an evidentiary hearing whenever the amount owed is unliquidated under rule 55(b)(2).” Cadlerock Joint Venture II, LP v. Envelope Packaging of Utah, Inc., 2011 UT App 98, ¶ 10, 251 P.3d 837.

At ¶ 36.

Although the language of rule 55(b)(2) appears to be permissive by stating that the court may conduct a hearing on damages, a district court does not have discretion to avoid a hearing when the damages are unliquidated, regardless of the allegations in the complaint. Liquidated damages are those that can be precisely determined. In such cases, an evidentiary hearing is not always required. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App. 2001). . . . But where the damage claim is for other than a sum certain, the district court has an “obligation under rule 55(b)(2) to conduct such hearings and take such evidence as it deems advisable for determining the damages.” Cadlerock Joint Venture II, LP, 2011 UT App 98, ¶ 11 (internal quotation marks omitted).

At ¶ 37.

Here, Sewell did not request and the district court did not hold a hearing on damages. Instead, the district court simply entered judgment for the full $600,000 in unliquidated damages prayed for in Sewell’s complaint. In failing to hold such a hearing, the district court abused its discretion.

At ¶ 40.

Weber Co. v. Ogden Trece, 2013 UT 62, No. 20120852 (October 18, 2013)

ISSUES: Right to Appeal, Service of Process on an Unincorporated Association, Service by Publication

Justice Parrish,

We are presented with two consolidated cases. The first is a direct appeal (Appeal) from an injunction entered against Ogden Trece (Trece), a criminal street gang. The second is a petition for extraordinary writ (Petition) brought by three alleged Trece members who were served with the injunction.

At ¶ 1.

The Court provides the factual and procedural backgound of this case.  Most importantly, Weber County’s Complaint seeking an Injunction against the street gang Ogden Trece’s illegal activities; Weber County’s method of service of process on the gang, including by publication; and the trial court’s temporary retraining order, preliminary injunction, and ultimately permanent injunction against Ogden Trece gang members.

At ¶¶ 2-20.

The Court dismisses the direct appeal because the appellants were not parties to the litigation at the trial level.

At ¶¶ 23-28.

The Court holds that it has jurisdiction to consider the Extraordinary writ.

At ¶ 29.

Is Ogden Trece Subject to Suit as an unicorporated association?

We first turn to Petitioners’ argument that Trece is not subject to suit as an unincorporated association because “a fundamental requirement of an unincorporated association is that it be formed for a lawful purpose.” . . .

At ¶ 30.

Rule 17(d) of the Utah Rules of Civil Procedure provides that “[w]hen two or more persons associated in any business . . . not a corporation, transact such business under a common name, . . . they may sue or be sued by such common name.” See also Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1391–92 (Utah 1996). Neither the rule nor any other provision of Utah law contains any requirement that unincorporated associations be engaged in lawful activity before they are amenable to suit. Thus, Trece is amenable to suit as an unincorporated association so long as it transacts business under a common name. Id. at 1392.

At ¶ 33.

Petitioners argue that “there is no evidence in the record of Trece transacting business” and that the County conceded that “Ogden Trece exists only as a criminal organization.” They contend that criminal organizations do not “transact business” but rather commit crimes. We disagree. There is no logical reason why business transactions and criminal activity are mutually exclusive.

At ¶ 34.

Utilizing the definition of “Business,” and the evidence before the trial court, the Court finds that there is sufficient evidence to support the conclusion that a street gang “transacts business.”

At ¶¶ 35-37.

This evidence satisfies the requirement of rule 17(d) and there is no need for us to depart from the plain meaning of the rule. See Savage, 2004 UT 102, ¶ 18. There is no reason why an unincorporated association should be immune from suit simply because the business in which it engages is unlawful. Under Petitioners’ proposed interpretation of the rule, a criminal organization would be immune from suit simply because the business it transacts is illegal. But it would be illogical to interpret rule 17(d) in a manner that allows organizations that operate illegally to escape suit when such organizations are exactly the kind of enterprise on which the justice system should be brought to bear.

At ¶ 38.

We also conclude that Trece meets the second requirement of rule 17(d) in that it operates under a common name. The district court found that “Ogden Trece has, as a group, an identifying name or identifying symbol or both.” Additionally, “Trece has identifiable hand signs, gestures, and clothing . . . that distinguishes [it] from other criminal street gangs.” Trece members are required to “put in work,” meaning committing the type of criminal transactions listed above “to bring recognition and money into the gang.” And these findings were amply supported by evidence that was admitted during the evidentiary hearing.

At ¶ 39.

The Court summarizes other evidence that supports its conclusion that Ogdcen Trece operated under a common name.

At ¶¶ 40-41.

Based on the foregoing, we have no difficulty concluding that Trece transacted its business under a “common name” under rule 17(d). Because Trece (1) transacts business (2) under a common name, it is an unincorporated association amenable to suit.

At ¶ 42.

Service of Process

Having concluded that Trece qualifies as an unincorporated association subject to suit, we now examine whether Trece was properly served with process. Petitioners argue that Trece was not properly served because rule 4(d)(1)(E) requires that service on unincorporated associations be made upon “an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process” and that no such managing agent of Trece was served. UTAH R. CIV. P. 4(d)(1)(E). The County responds that Trece was properly served by publication under rule 4(d)(4)(A) because the identities of Trece’s managing agents were unknown.

At ¶ 43.

The Court states that “[s]ervice on a street gang like Trece is possible under rule 4(d)(1)(E) by delivering a copy of the summons and complaint to the functional equivalent of an officer or managing or general agent of the gang.” However, because the County never argued that Trece’s “shot callers” were the functional equivalent of an officer or managing or general agent of the gang, and service on mere members of an unincorporated association is inadequate under rule 4 to effectuate service on the organization, there was no valid service on Trece under rule 4(d)(1)(E).

 

At ¶ 46-47.

The second possible method of serving an unincorporated association such as Trece is provided by rule 4(d)(4). It states that “[w]here the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence . . . the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication.” UTAH R. CIV. P. 4(d)(4)(A). Therefore, if the County were unable to identify an officer or a managing or general agent of the gang after exercising reasonable diligence in attempting to do so, the court could order service on the gang through publication.

At ¶ 48.

The County argues that service on Trece by publication was valid because the identity of the functional equivalent of an agent or officer was unknown. But the rule requires more. The party seeking to effectuate service through publication must exercise reasonable diligence in attempting to identify and then personally serve an officer or managing or general agent or his equivalent.

At ¶ 49.

The Court concludes that Weber County’s Motions for service by publication did not satisfy the prerequisite showing that they had conducted reasonable diligence in attempting to identify and personally serve Ogden Trece’s equivalent of an officer, manager, or general agent.  Specifically noting that Weber County’s “bald assertion” that Ogden Trece has no known management structure is contradicted by the trial testimony, that the County did not explain why it was unable to identify or locate the functional equivalent of an officer or a managing or general agent, even though it has an extensive gang database with information on 485 active gang members.

At ¶¶ 52-58.

The County argues that service by publication was necessary because there are 485 known gang members and personal service on all members would be impracticable. This argument misapprehends the controlling law, however, since rule 4(d) requires a showing that it would be impracticable to personally serve an officer or a managing or general agent. Nothing in the rule requires personal service on all 485 individual members of the gang. And the County’s explanation of its personal service on five members is similarly uninformative since its service on five individual gang members sheds no light on the County’s diligence in attempting to identify and serve an officer or managing or general agent.

At ¶ 59.

Because the County did not serve any of Trece’s officers or managing or general agents or their functional equivalent and did not establish a sufficient factual basis for service by publication under rule 4, Trece was not properly served. And Trece was the only defendant named in the lawsuit. Because the district court lacked jurisdiction over the only named defendant, the Injunction is void.

At ¶ 60.

The Court declines to award attorneys fees.

At ¶¶ 61-63.

Gressman v. State, 2013 UT 63, No. 20110965 (October 18, 2013)

ISSUES: Post Conviction Relief, Factual Innocence, Retroactive Application of a Statute, Survivability of PCRA Claims, Res Judicata, Pre-Judgment Interest for PCRA Claims

Justice Durham,

The State appeals from the district court’s order posthumously declaring Jed Gressman factually innocent of the crimes he was convicted of in 1993 and awarding his widow financial assistance payments under the Post-Conviction Remedies Act (PCRA). The State argues the district court erred by (1) finding that Mr. Gressman’s claims under the PCRA survived his death; (2) determining Mr. Gressman to be factually innocent as a matter of law based on the prior vacatur of his conviction; and (3) awarding prejudgment interest on the financial assistance payments.

At ¶ 1.

We find that Mr. Gressman’s PCRA claims did not abate upon his death and that the district court properly substituted his widow as the plaintiff in this suit. The district court erred, however, when it found that the vacatur of Mr. Gressman’s conviction conclusively established his factual innocence, as defined by the PCRA. Finally, we hold that the version of the PCRA relevant to this case does not permit the district court to award prejudgment interest. We therefore reverse for further proceedings consistent with this opinion.

At ¶ 2.

The Court outlines the factual background of this case.  Most importantly that after Mr. Gressman had served thirty-nine months of his sentence for sexual assault, he and the Juab County Attorney jointly moved the district court to dismiss all charges against him based on newly-discovered evidence.  Most importantly, more advanced DNA testing established that semen recovered from the victim did not come from Mr. Gressman.  Reasoning that this newly-discovered evidence would have materially influenced the jury’s deliberations, the district court vacated Mr. Gressman’s conviction and granted him a new trial. The State chose not to file new charges against Mr. Gressman, and no

trial occurred.  In 2009 Mr. Gressman filed a Petition for Post Conviction Relief seeking a determination of factual innocence, but dies before conclusion of the suit.  His widow was substituted in his place and obtained summary judgment based solely on the court’s previous ruling vacating the conviction. The district court awarded Mr. Gressman’s widow PCRA assistance payments—including prejudgment interest.

At ¶¶ 3-5.

PCRA Claims Survive Death

At common law, personal tort actions abate upon the death of either the claimant or the tortfeasor, while tort claims for property damage or conversion survive. . . .

At ¶ 7.

The Court concludes that at common law, Petitioner’s PCRA claim would not survive his death because it is a personal tort action, not a claim for property damage or conversion.

At ¶¶ 8-9.

Because Mr. Gressman’s claims would abate upon his death under the common law, his suit may only survive under the aegis of a statutory provision. We therefore examine whether the PCRA or Utah’s general survival statute operate to preserve Mr. Gressman’s claims.

At ¶ 10.

The Court holds that the Pre 2012 amendment of the PCRA applies in this case.

At ¶¶ 12-20.

The Utah Code articulates a general presumption against retroactivity. UTAH CODE § 68-3-3. By statute, “‘a provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.’” State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829 (quoting UTAH CODE § 68-3-3). In this case, there is no expression of retroactivity in the 2012 amendments, and no other basis for applying the amended provisions exists. Accordingly, we find the preamendment version of the statute controls.

At ¶ 12.

Under our case law, “the parties’ substantive rights and liabilities are determined by the law in place at the time when a cause of action arises,” while their procedural rights and responsibilities are governed by “the law in effect at the time of the procedural act” at issue. Id. ¶¶ 12, 14 (internal quotation marks omitted). Thus, if survivability is a matter of substance, then that question is governed by the law in place when Mr. Gressman’s claim arose. If it is a procedural matter, on the other hand, then subsequent enactments (like the 2012 amendments) could be deemed to apply.

At ¶ 13.

We view the 2012 amendments in question as clearly substantive. The amended provisions foreclose postjudgment interest for financial assistance payments and cut off such payments altogether after the death of the defendant-petitioner. See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.” Brown & Root Indus. Serv. v. Indus. Comm’n of Utah, 947 P.2d 671, 675 (Utah 1997) (internal quotation marks omitted). We therefore hold that Mr. Gressman’s petition is governed by the law in effect in 2008, not by the 2012 amendments enacted during the pendency of this action.

At ¶ 14.

The applicable version of the PCRA does not speak to survivability. As the State notes, the statute does contemplate a claimant “who has been convicted of a felony offense” petitioning the court “for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted.” See UTAH CODE § 78B-9-402(2)(a) (2008). And the statutory remedies—financial assistance payments, expungement, an innocence letter, and access to certain services and programs—are aimed at the wrongfully convicted person. See id. § 78B-9-405(1)(a), (6), (7) (2008). But those provisions answer only the threshold question of who the primary claimant is; they say nothing of significance on the secondary question of whether such claimant’s interests survive death and may be asserted by a representative. On its face, then, the PCRA seems not to speak to the question of survivability.

At ¶ 21.

. . . Absent some specific provision for survivability in the PCRA, we cannot rely on general references to other claims that do survive death to import the same principle into the PCRA. We accordingly find no basis in the PCRA—or in its legislative history—to support a holding for survivability.

At ¶ 22.

Because the PCRA does not address the survival of Mr. Gressman’s claims, we examine Utah’s general survival statute to determine whether it supplants the common law rule of abatement in this case. We find that it does.

At ¶ 23.

. . . Utah’s survival statute provides that “[a] cause of action arising out of personal injury to a person . . . does not abate upon the death of the wrongdoer or the injured person.” UTAH CODE § 78B-3-107(1)(a). In determining whether a statutory claim under the PCRA constitutes a cause of action for “personal injury to a person,” we look to analogous common law claims. . . . [T]he closest common law analogs to Mr. Gressman’s statutory factual innocence claim are false imprisonment and malicious prosecution. Supra ¶ 9. 

At ¶ 24.

The Court analyzes court precident from other jurisdictions establishing that causes of action for false imprisonment and malicious prosecution are actions “arising out of personal injury . . . .”

At ¶¶ 25-27.

Because common law analogs to a factual innocence claim under the PCRA are commonly included in the definition of actions for “personal injury” or “injury to the person” under survival statutes, and because a similar federal statutory claim has been defined as a personal injury action for the purposes of statutes of limitations, Mr. Gressman’s statutory claim survives because it is an action for “personal injury to a person.” See UTAH CODE § 78B-3-107(1)(a).

At ¶ 28.

The Court explains why it disagrees with the dissent concerning the survivability of Petitioner’s PCRA claim.

At ¶¶ 29-35.

Factual Innocence

The district court granted summary judgment in favor of Mr. Gressman’s widow based upon its finding that the 1996 vacatur of his aggravated sexual assault conviction was effectively a determination that Mr. Gressman was factually innocent. In essence, the district court ruled that the 1996 order vacating Mr. Gressman’s conviction collaterally estopped the State from contesting his claim of innocence. We hold that the district court erred because the 1996 order did not conclusively establish Mr. Gressman’s factual - innocence, as defined by the PCRA.

At ¶ 36. 

“The doctrine of res judicata embraces two distinct theories: claim preclusion and issue preclusion.” Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842. “Issue preclusion, which is also known as collateral estoppel, prevents parties or their privies from relitigating facts and issues in the second suit that were fully litigated in the first suit.” Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 28, 194 P.3d 956 (internal quotation marks omitted). Issue preclusion applies only if four elements are satisfied:

(i) the party against whom issue preclusion is asserted was a party to or in privity with a party to the prior adjudication; (ii) the issue decided in the prior adjudication was identical to the one presented in the instant action; (iii) the issue in the first action was completely, fully, and fairly litigated; and (iv) the first suit resulted in a final judgment on the merits.

Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 23, 285 P.3d 1157 (internal quotation marks omitted).

At ¶ 37.

The second element of issue preclusion is not met here because the issue decided by the 1996 order—whether to vacate Mr. Gressman’s conviction and grant a new trial based upon newly discovered evidence—is not identical to the issue presented in the instant action under the PCRA—whether Mr. Gressman is factually innocent of aggravated sexual assault. . . .

At ¶ 38.

The district court’s 1996 finding that a new trial was warranted is not equivalent to a finding of factual innocence because these two findings involve very different legal standards and resolve different issues. The grant of a new trial under the civil standard applied by the district court in 1996 requires only a finding of a reasonable likelihood that the defendant could have obtained a different result at trial if the newly discovered evidence had been available, while a factual innocence claim requires a convicted individual to affirmatively prove innocence by clear and convincing evidence. In other words, the former is finding that the State might not have carried its burden to prove guilt beyond a reasonable doubt, whereas the latter is a finding that the convicted individual actually carried the burden of proving innocence by clear and convincing evidence. Because the question of whether to grant a new trial necessarily evaluates the State’s burden to prove guilt, while the question of whether an individual is factually innocent involves the convicted individual’s burden to prove innocence, the issue resolved in the 1996 vacatur proceeding is not identical to the question of factual innocence at issue in the present action.

At ¶ 41.

Because the issue resolved by the district court in 1996 when it vacated Mr. Gressman’s conviction and ordered a new trial is not identical to the issue before the court in the current action under the PCRA, the district court erred by finding that the 1996 order conclusively established Mr. Gressman’s factual innocence.

At ¶ 43.

The Court rejects Petitioner’s alternative grounds for affirming the trial court’s summary judgment ruling.  Specifically, (1) the State did preserve the issue for appeal, (2) there is no requirement to marshal the evidence on purely legal evaluations, and (3) there is adequate information in the record to manifest a dispute of material fact.

At ¶¶ 44-49.

Pre-Judgment Interest

The version of the PCRA that was in effect when Mr. Gressman’s factual innocence claim arose provides for assistance payments to an individual determined to be factually innocent in the amount of “the monetary equivalent of the average annual nonagricultural payroll wage in Utah . . . at the time of the petitioner’s release from prison” for the amount of time the petitioner was incarcerated. UTAH CODE § 78B-9-405(1)(a) (2008). This version of the PCRA does not provide for an award of prejudgment interest on this amount.

At ¶ 51.

We have previously held that prejudgment interest may not be awarded where a “statute fixes a penalty or determines the damages to be allowed.” Fell v. Union Pac. Ry. Co., 88 P. 1003, 1006 (Utah 1907). Thus, where a statute fixes the damages to be awarded, the statutory amount is deemed to be the full compensation allowed by the legislature, and prejudgment interest may not be added unless provided for in the statute. Indeed, the relevant version of the PCRA confirms that the legislature did not contemplate compensation in addition to the amount specifically provided by the statute: “Payments pursuant to this part constitute a full and conclusive resolution of the petitioner’s claims on the specific issue of factual innocence.” UTAH CODE § 78B-9-405(8) (2008).

At ¶ 52.

Therefore, if assistance payments are ultimately awarded in this case, we hold that prejudgment interest may not be awarded.

At ¶ 53.

Justice Lee, dissenting,

I agree with the court’s construction of the Post-Conviction Remedies Act, and concur in its determination that Gressman’s claims are not subject to survival under that statute. I respectfully disagree with its construction of the general survival statute, however. I read that provision, Utah Code section 78B-3-107(1)(a), to apply only to claims for “personal injury to a person” in the sense of physical injury to a plaintiff’s body. That is the only construction that ascribes independent meaning to the qualifying language, “to a person.” It is accordingly the one I would attribute to the legislature. And since Gressman’s claim is not of that nature, I would conclude that the claim abated on his death.

At ¶ 55.

Justice Lee explains.

At ¶¶ 56-73.