Diversified Holdings, L.C. v. Turner

Thus, even if I pede indica- the arrest or detention. present there is no In the case require than that anything did more the statute to tion that defendant could read lawful, to police advice underlying officers and offer arrest or criticize detention sec- being his criticism detained. Whether prohibit those a substantial tion three would still immate- or his advice correct is was welcome constitutionally protected conduct. amount of protects a First “[T]he rial. Amendment Therefore, I that section three is believe and amount of criticism significant verbal I stand. would overbroad should not Hous- police at challenge directed officers.” appeals. the court of reverse ton, 461,107 Because S.Ct. 2502. 482 U.S. prohibits a sub- three of the statute section constitutionally protected amount of

stantial limit fails to

speech, and because the statute conduct, stop I

police authority to protected that this section is overbroad.

believe determined, Having on based statute, plain language that section 2002 UT 129 overbroad, I consider whether three is next HOLDINGS, L. DIVERSIFIED can interpretation offered defendant C., Plaintiff, Appellee and infir- from save this section its constitutional Cross-Appellant, argues we should Defendant mities. v. introductory language of the statute read the underlying or de- require to arrest TURNER, Knapp, M. R. Richard Gilbert previously, As I tention be lawful. discussed University Properties, Inc., a Utah Cor reading encourage would disorder on this poration, Companies, a Haws Utah plain comport does not with the streets and Companies Corporation, dba The Haws if to the statute. Even I were language of Services, West, M. Real Estate Robert however, accept interpretation, this sec- Jr., through 4, and John Does 1 Defen overbroad. tion of the statute would remain dants, Cross-Appellees. Appellants, and being person applies to both the The statute 20000730, 20010021. Nos. person any detained other arrested or might impede the detention. who arrest or Supreme Court of Utah. speech A cannot rise and person’s freedom upon police prob- have fall whether the based 27, Dec. Fur- person. to arrest able cause another thermore, applied to where statute detained,

person being arrested this sec- an on the

tion creates unbounded restriction rights

accused’s First Fifth Amendment any im- might prohibiting conduct that crimes, and, attorney misguided police he is rights: a criminal that absolved of his an refuses result, quiet to to advise his the criminal determines not confess to be continues order charge legal rights; police; being pursued littering, out on a a woman hands client his and, right goes person as a into and refuses to pamphlets on the silent his store unlock to remain result, difficulty police, police procuring a confes- who have neither have his door an. arrest warrant, pamphlet; Offen, v. person nor a see State who read the warrant search sion from (Crim.Ct. brutality stop picketing police 96 Misc.2d 408 N.Y.S.2d victims of refuse 1978) (dismissing charge police under station obstruction simi on the sidewalk front of them; identify identify police attempt facts for failure to criminal act in detain and lar when information); immediately stop produc- even a wit employer a detainee—or refuses badge factory name and employee leave the officer for his at his so his ness—asks tion answering questions, People war- before premises and be served with an arrest number the rant, cf. Krum, Ludlow, 132 N.W.2d v. 2d v. 374 Mich. see State 28 Utah (1965) (1972) (affirming conviction (affirming quash information obstruction where P.2d 1210 immediately interrupted to demand his employer refused release officer where defendant badge deputy employee with a name and number while officer was whom wished to serve order); people). inspecting priest the cars of other claims court informs small Atkin, City, Blake plain- S. Salt Lake tiff. Holman, Jeffrey Walker,

D. Miles N. Salt City, Lake for defendants.

DURHAM, Chief Justice:

INTRODUCTION ¶ 1 negligence After a trial on claims of fraud, the trial court remitted the jury’s regarding amounts of the verdicts both compensatory punitive damages. appealed plaintiffs defendants have have cross-appealed, challenging both the amount part awards. affirm in We part. and reverse

BACKGROUND ¶ appeal, 2 we “On recite the facts light in from the record most favorable to Daniels, jury’s verdict....” State v. 2002 ¶2, 2, UT 40 P.3d 611. This case from arises plain a real estate transaction in which the tiff, (Diversified), Holdings Diversified was manipulated paying substantially into more property necessary. for a than was Two of (Turner) defendants, Turner and Gilbert Knapp (Knapp), represented Richard purchase price building in which Diversi $785,000, fied was interested as when fact defendant, University Properties, a third by Knapp, acquiring which was owned was (for property purpose selling it to Diversified) $700,000. Knapp for Turner and they informed Diversified would sell the $10,000 property they for than had more it, (through University Properties) paid for persuaded pay higher and Diversified to expected. price than it had The final defen dant, Companies the Haws Real Estate Ser (Haws), employed and vices both Turner Knapp agents, as real estate failed to train supervise properly, little or them and made reviewing both awards after novo standard for their conduct even effort to correct no adjust- damages by juries and also discovery fraudulent behavior. of their its courts. expert awards testimony of two wit- ments of those undisputed The Co., real Mut. Auto. Ins. regulation Campbell v. State Farm regarding nesses 44, 89, 13, Rep. numerous industry attributed to Haws 432 Utah Adv. estate 2001 UT cert, oversights supervision, granted, improprieties and 535 U.S. P.3d (2002). irregularities. 2326,153 training, response to Sev- and L.Ed.2d S.Ct. sale, Diversified became eral weeks after the review a trial court’s decision 6 We pur- with the problems associated aware of Rule 403 exclude evidence under to admit or inquiries building began and chase of the Evidence under an Rules of Utah lawsuit. that culminated standard, and will not discretion abuse of jointly all four defendants 3 A found determination of a lower court’s overturn damages, severally fraud liable for “beyond limits of admissibility unless it is negligence awarded North, reasonability.” v. 688 East State individually. Upon against each defendant (Utah 1997) (quoting State 942 P.2d motion, judge the trial remit- the defendants’ (Utah Hamilton, P.2d 239-40 v. negligence ted the 1992)). except ap- against each defendant Haws. On allege a number of er- peal, the defendants argue that by the trial court and

rors ANALYSIS award remains excessive. remitted arguing that plaintiffs cross-appeal, CLAUSE AND I. INTEGRATION

jury’s original awards should be restored. RECOVERY FOR FRAUD ¶7 plaintiffs argue that Defendants OF REVIEW STANDARD containing a to affirm a contract decision reach here are 4 The claims we merger the fraud was discovered clause after of review. governed different standards suing They precludes them from for fraud. judge’s under Rule of A trial discretion Utah party maintain that the must re defrauded propose a remittitur of Procedure 59 to Civil preserve right scind the contract to compensatory is considerable. fraud; aggrieved party if the elects sue Exch., v. Fire Ins. Crookston contract, party then limited affirm the I). (Utah 1991) (Crookston Having 803-04 under the contract. to the remedies available trial, present phases of the the been for all Jury expressly 41 contradicted instruction judge position to the best ascertain is trial, informing jury position the this bounds,” proper jury if the “exceeded its integration clause in contract between “[a]n “only if there is no and we will reverse parties recovery for fraud or the does not bar 804, Id. at reasonable basis for the decision.” Although giv negligent misrepresentation.” (citations omitted). 805 so, only opportunity en an to do counsel not as- 5 Awards of are instruction, object to but also failed to this regard to the seven factors enu- sessed with affirmatively argument indicated that the light In merated in I. Id. at 808. Crookston appeal made.1 now raised on would not be Supreme of the recent United Court States procedure The of civil re holding process requires due de 8 rules that federal objection ap- quire party preserve to an to awards novo review appeal special cir jury instruction for absent pealed grounds, Cooper constitutional In- on Inc., cumstances; objects dus., “party to an Group, unless a Inc. v. Leatherman Tool 424, 1678, give an instruc 432, or the failure to 121 149 instruction 532 U.S. S.Ct. tion, (2001), may assigned as adopted a de the instruction not be L.Ed.2d 674 we have 41, being prove precluded to regard jury are from able 1. With instruction counsel for clients fraud." Counsel for defendant responded judge "I plaintiff that "I the commented to the argument.” closing argument The law firm of wouldn’t hear in won’t make want to Walker, my representing defendants on integration & because there was this clause Holman

693 (revised) injustice.” except error to avoid a manifest from the evaluation of its worth 51(d). 51(d) principal represented offered who R. P. Rule Di- Utah Civ. While ($650,000). versified in the sale From the permit us to review instructional er- does $135,000, resulting judge difference of justice ... rors in the interests of “it is $70,000 subtracted attributable to fraudulent upon aggrieved party incumbent misrepresentation, $1,336 interest present persuasive exercising reason” for charged part on loan that was requires that discretion ... and this $65,000, remaining scheme. according “showing special warranting circumstances court, to the trial could be sustained dam- such a review.” ages resulting negli- from the defendants’ I, 789, (quoting Crookston 817 P.2d 799 Han- gence working zealously in not to obtain the (Utah 1988)). Stewart, sen v. 761 P.2d purchase price best for their clients. The applies The rule in both criminal and civil trial court found that there “was no other contexts; “general we observe the rule that damage presented evidence of argued argued ‘issues not raised at trial cannot be jury.” ” appeal.’ for the first time on Monson v. cross-appeals propri- Plaintiff on the (Utah 1996) Carver, 928 P.2d ety award, negligence arguing that (quoting Lopez, State v. there was other jury evidence on which the (Utah 1994)). appeal The defendants on do properly original could have based its however, not address waiver issue and do $210,000 negligence award of damages. showing special not make a there are precluded Plaintiff raising argu- from justifying circumstances this court’s review. ment, however, by our Having case law. preserved The issue was not therefore for opted accept negligence the remittitur of appeal. made the trial court instead of trial, having plaintiff a new cannot now chal- II. THE EXCESSIVENESS OF THE lenge amount of the on cross- NEGLIGENCE AWARD appeal. Herold, In v. Dalton 934 P.2d 649 jury’s 9 The trial court remitted the (Utah 1997), party we held that a who ac- $210,000 total award all defendants of cepts adjusted amount cannot thereafter $65,000 negligence damages under Utah appeal propriety of the order.3 We re- 59(a)(6),2 finding Rule of Civil Procedure part Shipping lied in on Donovan v. Penn plaintiff there was no evidence that had suf Co., U.S. S.Ct. 51 L.Ed.2d more than fered that as result of defen (1977), Supreme where United States negligence. dants’ The court reached the court, plaintiff Court held that “a in federal by subtracting remitted amount the amount prosecuting whether a state or federal cause ($785,000) action, paid property may appeal Diversified for the from a remittitur appeal, by long usage, by did not become involved this case until now sanctioned which the after the verdict was rendered. may court a denial the motion condition filing upon a new trial granted 2. A new trial if the court finds way remittitur in a stated amount. In this "[¡Insufficiency justify of the evidence to the ver- plaintiff given option submitting is the of either 59(a)(6) dict or R. other decision." Utah Civ. P. accepting to a new trial or of the amount of (2002). speak judge's Rule 59 does not to a trial damages justified. the court considers discretion to remit award; the amount of a practice goes opinion ability This back to the of Jus- the to offer a remittitur as an Story sitting alternative to a a new trial is common-law devel- tice at circuit in A num- 1822.... opment. Supreme accepted ber of Court decisions Jus- grafted provision Trial courts ... on to that Story’s uncritically power tice view and the [giving ability trial] courts the to order a new uniformly the court to set a been remittitur has right grant the of the court to a trial refuse to by accepted the lower federal courts. excessive, damages new trial when the were if Wright, 11 Charles Alan Arthur R. Miller and winning party the tion. The would consent to a reduc- Kane, Mary Kay Federal Practice and Procedure provision by judi- was thus extended (2d ed.1995). § 2815 permit require cial decision to trial courts to part remission of or suffer the additur, 3. trial Dalton addressed an in which the consequences of a new trial. by judge augmented the amount awarded the Johnson, State Road Comm’n v. 550 P.2d jury, (Utah 1976). approved application and we the of estab- 217 The federal courts follow a procedure, similar lished remittitur law in context.

694 4 future recurrence of the mis- probability of accepted.” Id. at 97 S.Ct. order he has (vi) conduct; relationship par- 835. (vii) ties; the amount of actual dam- ¶ Coop. Mercantile Terry 11 In v. Zions ages awarded.5 (Utah 1979), Institution, 314 rev’d 605 P.2d I, P.2d at 808. While these Crookston (Utah 1984), grounds, 678 P.2d 298 on other list, comprise an nor do not exclusive factors general exception to the court noted an individually, carry weight all factors decisive rule, party moves for who' “[w]here considered, justification and a of a must be defendant, reduction, institutes an i.e. the generally couched award will substantial proceedings, the appeal of the lower court or more of these factors. in terms of one cross-appeal the plaintiff be free to should ¶ 19, 1134; 65 P.3d Campbell, 2001 UT 89 remittitur, notwithstanding the amount of Exch., Crookston v. Fire Ins. accepted previously the re- fact that he has (Utah 1993) (Crookston I, II); Crookston exception That at 326. duced amount.” Id. P.2d at 808. in the instant case. Defen- apply does not assigned as error the amount dants have not defendants, of the four Gilbert 13 One damages as remitted negligence Turner, judge’s appealed the trial Defendants have assailed the trial court. remittitur; only the we therefore consider damages, plaintiff amount of level of awarded argue in favor of the therefore free to remaining three defendants. jury. found and assessed amounts However, cross-appeal plaintiff cannot on as- Knapp A. Richard M. negligence damages which were re- sail the $1,750,000 jury 14 The awarded court, plain- mitted the trial which amount punitive damages against Knapp; the trial trial, accepted in lieu of a new and which tiff $500,000, judge remitted the award to ob defendants do not seek to disturb. amount resulting serving that the ratio of slightly actual over five to one

III. THE OF THE EXCESSIVENESS given Knapp’s appropriate was wealth and PUNITIVE DAMAGE AWARD engage in similar the likelihood that he would subjected in the future if not to a conduct I, 12 In we identified Crookston punitive damages. award of substantial which aid a finder of fact seven factors appreciate judge’s While we the trial careful reviewing first instance and a court on factors, I we consideration of the Crookston appeal in motion for a new trial or on deter regard hold that the remitted award with mining appropriate scope of an award of Knapp remains excessive. court, punitive damages. jury, A trial or appellate consider court must Relative Wealth of the Defendant (i) defendant; the relative wealth of the

(11) misconduct; alleged cases have determined that the nature of the Our (iii) aggrava- wealth can be either an facts and circumstances surround- defendant’s (iv) conduct; determining ting mitigating factor in ing such the effect thereof on (v) award, others; puni- plaintiff punitive damage since the lives of the size (Ala. Corp., So.2d 4. We note that several other states have now Motors Ins. Williams, allowing appeal 1986); adopted a rule Stilwell v. 476 So.2d rule, directly. argued, pro- it is remittitur This (Miss.1985). party or briefed Neither has raised right plaintiffs both to tects a state constitutional question whether should recon this court appeal a affecting and to an from a final order position, and we therefore do not ad sider its rights, pro- while the federal substantial dress it here. cedure forces a successful to choose expense and uncertainties of a new between We to the trial court for its thor- 5. are indebted award, insulating the trial and a remitted while factors, ough consideration of the CrookstonI but appellate remittitur from review. trial court's jury regarding it did note that not instruct Stores, Allsups's Inc. v. North See Convenience regarding juries those factors. If are instructed 1, 1, (1998); River 127 N.M. Ins. Co. factors, Line, Inc., I the need for trial courts the Crookston Freight Robinson v. Old Dominion (1988); may grant v. to remittiturs be diminished. Va. 372 S.E.2d Harmon damages purchase tailored to what is fied. Within a few weeks after the should be five defendant, closed, particular necessary price deter the Diversified learned of the actual to situated, similarly paid by ultimately from defendants and as as others instituted well Campbell, repeating prohibited legal proceedings culminating conduct. ap- in this ¶¶ 23-24, Evi- at 65 P.3d 1134. peal. punitive damages may appropri- 2001 UT 89 While puts Knapp’s at fraud, adduced at trial worth ately dence imposition be awarded for of $5,000,000. relating the evidence While disproportionate an award so to the actual defendants was less the wealth of the other justified by suffered must be more complete, Knapp appears to be the wealthiest than the mere fact of fraud. Both the Unit- by significant margin. setting In the remit- a Supreme ed States and this Court court Knapp’s at 10% of estimated ted award that, recognized have within the broader worth, trial court intended “to send a actual, only class of actions that merit not very strong message regarding future con- exemplary damages, there is a subset of putting Knapp at risk of duct” without bank- particularly egregious behaviors that will at- ruptcy. extremely wealthy An defendant tract more severe sanctions. We have coun- may require larger punitive dam- a award of appeared dispropor- tenanced awards that misconduct; ages to be deterred from further tionate at first blush when the conduct recently great wealth of a we have taken the grounding liability the defendants’ was but a tending support as a factor defendant particular pattern instance of an invidious large punitive damages. at award of Id. affecting pecu- victims both numerous and Campbell, The wealth of the defendant liarly vulnerable to the defendants’ machina- however, completely was of a different order ¶ 27, Campbell, tions. See 2001 UT 89 at magnitude Knapp.6 than that The of ra- II, 1134; P.3d Crookston 860 P.2d at 941. tios between and actual we perpetrated While the fraud here is suffi- presumptively appro- have determined to be justify compensatory puni- cient to both generally priate are sufficient to ensure that damages, appellant’s tive conduct lacks those punish awards of both additional elements of blameworthiness deter the conduct on which liabil- defendants’ would sustain more substantial dam- II, ity is based. 860 P.2d at See Crookston ages. Knapp’s The victim of deceit was not (“That pattern adequate was considered individual, corporation, a vulnerable but a provide compensation which would make represented in this transaction two men punishing while victims whole and deter- experience with substantial in both business tort-feasors”) (citations omitted). ring the and real estate transactions.8 presence personal of substantial or cor- porate assets is not alone sufficient to re- ¶ 17 Behaviors that undermine the quire an award that exceeds those ratios.7 efficiency integrity judicial process be considered under the rubric of also 2. The Nature of the Misconduct factor; Campbell the second Crookston I singled Knapp 16 The found and Tur we out for censure the defendant’s $70,000 purchase systematic price ner inflated destruction of documents related they property acquired challenged policy to sell Diversi- and its its activities insurer, deterrence, degree Campbell require greater 6. The defendant in was the would Farm, greater State whose assets were estimated at representing embodied in an award Campbell, $54.75 assets, billion in 1995. 2001 UT 89 proportion of individual than would a 26,V 65 P.3d 1134. corporation. suggested 7. The Seventh Circuit 1% principals that one of the 8.The court noted guide- corporation’s appropriate net worth is an plaintiffs for the was the chief executive officer of typical punitive damage line for a award. Cash owned, company (principally) he founded and Co., v. Beltmann N. Am. 900 F.2d n. 3 and had owned or been involved with a number Cir.1990). (7th Campbell, As we observed in corporations. principal of other The other had guidelines, dispositive help- such while not “are transactions, engaged in a of real estate reviewing number punitive damage ful awards.” including subsequent purchase Campbell, sale 2001 UT 89 at 65 P.3d 1134. It immediately apparent duplex, four-plex six-plex. is not that an individual and a 696 finding jury

harassing exhausting legal opponents. do not disturb the and the ¶¶ 30-31, Knapp’s that actions were both Campbell, 2001 UT 89 at court out, culpable reprehensible; point we do case are not 1134. The facts of the instant however, degree culpability systematic of suggestive of similar efforts to punitive litigation process. reprehensibility does not merit dam- hinder the ages significantly the ratios outlined outside Supreme The United 18 States I. Crookston distinguished pu recently between Court has damage respond purely nitive awards that 4. Effect of Defendant’s Conduct on Plain- at harms and those aimed crimes economic tiffs and Others or involving actual or threatened violence ¶ Knapp’s conduct did not have America, North Inc. v. deceit. BMW of widespread groups effect on of vulnera Gore, 517 U.S. S.Ct. devastating impact or a on the ble victims (1996). L.Ed.2d 809 justify an that would award outside injury, especially of economic [I]nflietion range usually adequate pur for deemed intentionally through when done affirma- poses punishment of and deterrence. “The misconduct, target tive acts of or when the affected, larger people of the number vulnerable, financially can warrant a justification greater higher punitive for penalty. But substantial this observation ¶ 37, damages.” Campbell, 2001 89 at UT all does not convert acts that cause eco- P.3d 1134. sufficiently harm into torts that are nomic justify reprehensible significant sanc- Probability of Future Recurrence compensatory damages. tion in addition to ground 21 It is on this added) (emphasis Id. S.Ct. argument for a substantial award of (citations omitted). Knapp, certainly while compelling. is most While the stan misconduct, guilty of affirmative acts of did factor, dard of review for this as for all the target vulnerable victims or otherwise act factors, novo, other remains de the trial “sufficiently reprehensible” in a manner findings privileged court’s detailed and its punitive damages. Puni- merit substantial argument position provided have the best for tive awards should reflect a different assessing substantial degree culpability “garden-variety” against Knapp. The trial court found that opposed egregious fraud as its more Knapp incredibly arrogant “demonstrated forms. uncaring attitude on the stand when Surrounding 3.Facts and Circumstances pro asked about the lies and half-truths Defendants’ Misconduct pounded by Mr. [at] Turner his behest.” Moreover, Knapp third I 19 The Crookston factor “absented himself from the objective jury supplements proceedings” puni the second’s assess once the found that warranted; ment of the defendant’s conduct with a more tive were he did not subjective inquiry presentation during into “what the defendant attend the trial motivating argument knew and what was his or her evidence or related to the amount ¶ 35, Campbell, punitive damages. Knapp’s 89 at actions.” UT 65 of While absence benign interpretation, P.3d of mak it 1134. While defendant’s motive bear is cer ing money regardless legal professional tainly equally susceptible placed on it to that is, court, hardly admirable, again, contempt duties is there no the trial that he holds any procedure profound legal evidence of intentions or actions so that would censure his ly reprehensible as to merit dam conduct.9 The trial court was concerned that ages beyond ordinary suggest penalize Knapp In measures. a smaller award would not ing punitive damages sufficiently repetition the award to deter him from ordinarily, Knapp Knapp should further remitted we his conduct. does not nor very possibility Knapp 9. His to attend not lost on tude a real exists that Mr. decision not trial "was exploit or the Court. This Court concludes that will seek and circumstances such as this Knapp changes Mr. atti- on a future occasion.” unless his conduct and

697 transaction, justifies tionship higher punitive hold himself out as also dam he in this did ages. agent observed A real agent. The trial court Id. estate does owe “a a real estate any surrender of his real duty, independent implied express Turner’s of or while prevent working contracts, ‘honest, ethical, him license will from compe estate to be ” engage Knapp continue to agent, dealings an could purchasers. tent’ with Her despite Tasulis, 52, 22, the out- in real estate transactions mansen v. 48 UT P.3d Jones, (quoting come of this case. Dugan v. 615 P.2d (Utah 1980)). duty a This is not fiducia ¶ 22 that the loss of the While it is trae law, ry duty, however: Utah “[u]nder agent will capacity to act as a real estate general fiduciary obligations rale is no exist dramatically Knapp, than affect Turner more buyer any proper between and seller of of it not follow that the outcome this does ty.” Dugan, 615 P.2d at 1248. Here the pro- significantly Knapp’s will not affect case corporation represented client was a two judgment on prospects. A based fessional businessmen, experienced inexperi not an fraud will no doubt have some detrimental pur enced and vulnerable individual. While Knapp’s reputation in the relevant effect on estate, real chasers of whether individual or pros- communities as well as on his business corporate, certainly right expect have a recently completed pects putting his law agent that sellers and their will refrain from degrees to use. These conse- and business practices, experienced purchas fraudulent may give Knapp pause some before quences property er of a commercial in a is not pursue courses of he chooses to fraudulent position peculiar dependence on the trust Campbell In action in the future. we consid- agent, position worthiness of seller or “decades-long policy of ered State Farm’s factor intended to vindicate. policies” and fraudulent and dishonest difficulty altering “ingrained policies of Compensatory 7. Punitive to Dam- Ratio of aggravating

corporate culture” to be circum- ages justify helping a more substantial stances punitive damages than we would award of punitive 24 The ratio of to com ordinarily Campbell, allow. 2001 UT 89 at not, itself, pensatory damages does deter ¶ 41, 65 P.3d 1134. While mindful of the excessive; mine whether not an award is opportunity Knapp observe court’s parame an award that falls certain outside legitimate those obser- draw inferences from will, however, searching judi ters elicit more

vations, possibil- we are unconvinced that the ¶ 49, scrutiny. Campbell, cial 2001 UT 89 at ity Knapp’s supports recidivism a result I, 1134; P.2d at 810. Crookston analysis different from that which an $100,000 For of less than awards suggests. factors other six Crookston justifi generally three to ratio of one will $100,000, able, greater than but for awards Relationship of the Parties usually appropria somewhat lower ratio is aspects 23 Several of the rela I, Crookston 817 P.2d at 810. Even te.11 tionship between and defendant can remittitur, judge’s puni after the trial all the against a defen affect the assessed tive awards in this case exceed greater reposed in a the trust dant. $100,000, searching ju triggering thus more defendant, justifica greater will be the scrutiny.12 dicial significant a more award of tion for ¶ 44, law identifies damages. 25 While our ease Campbell, 2001 UT 89 fiduciary which P.3d 1134. The breach of a reía- ratios awards 1,” 10. Knapp be overcome did not himself out as a real 3 to but that inclination hold sale, I, agent principal in this as the estate University Properties appropriate facts. 817 P.2d at 810. Crookston proper acquired which flexibility they judges require if are to Juries ty to it to Diversified. sell damages appropriate to all awards of fashion particular circumstances of case. guide- ratios are intended to be flexible 11.These lines, greater rigid formulae. For awards of $130,500 range $100,000 from remitted awards 12.The inclina- than “we have indicated some $500,000 against Knapp. having against Haws to tion to overturn awards ratios of less than assessed, ap- dant. The remitted awards under this damages are to be the briefs remittitur, parties, exception Knapp’s, as the trial court’s of are proach, as well with the ratio disagreement closely aligned presumptive as to how the reveal some more with the that, argues calculated. Plaintiff should be ratios.16 defendants, multiple “ac- there are the where difficulty plaintiffs 28 The with punitive damages” against dam- tual which theory punitive it an award of is that allows ages consist of the total are measured should damages against an individu to be sustained negligence damages to the total fraud added part al that in on the defendant based Using damages for all defendants. negligence plaintiff does of others. While method, higher punitive damages awards of $210,000 argue it the total loss that sustained sustained, damages the actual would be since damages, jury negligence the awarded in it by the would be increased the inclusion of all offer, offer, easy not nor would it be does negligence defendants’ individual awards.13 why higher argument for award of suggest 26 Defendants that the punitive damages against Knapp be should damages proper measure of actual is the justified by negligence of three other $71,336 jury award of that found to be multiple defendants are defendants. When the result of the defendants’ fraudulent act severally jointly liable for fraud dam model, excep with the ions.14 Under this here, they ages, as are the full amount of Haws, against even the tion of the award joint liability may that and several form the very remitted awards exceed or come near to damages against basis of the actual which exceeding we established in the ratios Crook- punitive damages are for each de assessed stonl,15 multiple are not fendant. When defendants yet relied on a third The court liable, jointly severally they as are not approach calculating damages, sug- actual negligence damages, for one defendant’s lia gesting damages against that the actual bility predicate increasing for should be particular punitive

which a defendant’s dam- punitive damages against assessed another. ages should assessed is sum of damages negli- and the individual 29 The trial court’s inclusion of total fraud gence damages against negligence damages compo- that assessed defen- individual as a yield generally satory damages 13. Plaintiff's calculations results is determined with reference to loss; regard plaintiff's punitive the amount of a still outside our ratios with to the (Turner 6.7:1; 5.2:1; damage regard punish- decided Knapp University award is with award 2.9:1; deterring ing .39:1). the defendant. See 22 Am. Jur The remitted awards or- Haws Damages (1988) (observing puni- § 2d. by judge, exception dered the trial with the of damages imposed tive view "are of the enor- against Knapp, acceptable fall within ratios mity of the misconduct rather than as a measure 1.5:1; computation: Knapp under this Turner compensation plaintiff.’’). of to the The ratio of 1.6:1; 3.7:1; University Haws .96:1. punitive damages to actual in determin- is useful ing appropriateness punitive of an award of 14. Defendants offer an additional model damages adequacy plaintiff's not because the of a damages punitive which the assessed all compensation assessing appro- is at issue in liable) (jointly severally defendants are add- priateness punitive damages, of an award of compared damage ed and the total suffered because the amount of the loss suffered out, point a result of the fraud. Defendants gauging degree is of some use in of correctly, any pro- the other calculations reprehensibility associated with defendant’s posed higher will result in awards of conduct. damages, in all of the calculations the since other punitive damage award for each of four defen- exceeding 15. model results in ratios Defendants' $71,336 compared dants is with the full in fraud appropriate margin. measures substantial damages plaintiff, sustained instead of (Turner 31.5:1; 23.8:1; 13.6:1; University Knapp $71,336 against that defendant's share 1,7:1.) high Haws The remitted amounts remain damage. Since "Diversified would not be able to 2.9:1; 7:1; (Turner Knapp under this measure. damages collect four times the actual 3.1:1; 1.8:1.) those University Haws damages ... actual amount dam- ages justified by 14.5:1; 12.1:1; awarded should not be Jury’s Knapp award: Turner 14:1; University [sic] whole amount of lass attributed to each Haws 1.1:1. Remitted award: 2.1:1; 5.3:1; 3.1:1; Appellants pur- Knapp University defendant.” misunderstand the Turner pose punitive damages. compen- level The Haws 1.5:1. problematic awards for the same acts. We have to date damages is also on actual nent of duplicative the disallowed as assessment placed legislature has limits these facts. statutory penalty of double and of support type misconduct that will on punitive damages puni- general when “both damages: an award of tive awards based on the [were] only if be awarded [p]unitive same set of facts.” Alta Indus. Ltd. v. compensatory general are Hurst, (Utah 1993). In by clear and and it is established awarded Lichfield, 872, Steenblik v. 881 acts or omis- convincing evidence that (Utah 1995), again statutory we held that a are the result of of the tortfeasor sions penalty damages coupled an of treble with intentionally fraud- and malicious or willful punitive damages duplicative: award of was conduct, that manifests a ulent or conduct actions, wrongful [defendant] his “[h]owever toward, knowing and reckless indifference only followed one course of conduct. That of, disregard rights of others. and a persisted this conduct over time does not 78-18-l(l)(a) (Supp.2001) § Ann. Utah Code create two sets of facts for which he should added). simple negligence (emphasis While punished liability twice.”17 be Defendants’ negligence support punitive damages, will not entirely single in this case is based on a manifesting knowing and reckless indiffer- transaction, and while that transaction aas rights of others will. A toward the ence punitive damages, whole merits under Utah made on the facts of determination must be legal category law each under which defen- negligence complained gen- each case whether the dants’ actions can be described does not support punitive erally independent punitive of the sort that will form an for of is basis damages.18 judge’s The trial model for cal- damages. culating damages, plausible, actual while does liability Even if defendants’ had 30 precedent. not conform with our variety to of that which makes been found be precedent damages appropriate, our punitive 31 The instruction submitted to the duplicative punitive damage jury regarding punitive damages asked the allow does not Society public policy. judge er violated Oklahoma 17. The in Steenblik "characterized statutory damages penalty punishing ‘assessed as Scott treble as a has an interest for both illegitimate a result of the reckless and intentional violations intents. Act,’ damages Auth., ‘punitive are Turnpike said F.3d Mason v. Oklahoma 115 punishment (10th Cir.1997). malicious actions.' for defendant’s 1460 The Ninth Circuit possible have been to 906 P.2d at 881. It would regarding separate reached a similar result punishing treat the two awards of equal protection punitive awards of for intents, wrongful separate to the act and violate infliction of emotional distress intentional assessing maliciously, act but in awards of arising episodes out of the same of sexual claims damages, punitive we have chosen character- harassment: giving liability ize incidents rise terms duplicative because These awards were not rather than in terms of inten- course of conduct represent jury's they may interpreted tion. disregard punish his [defendant] intent to for (prohibiting law sexual harass- of both federal have reached a retaliation) 18. Four federal circuit courts policy (against and state ment and wrongful dis- distress) different conclusion. When intentionally causing emotional in his damage charge punitive led to awards under [plaintiff]. continued harassment discharge wrongful and section 1983 both County, 1998 Nos. 96- Mockler v. Multnomah claims, held that trial courts the Tenth Circuit *5, 35895, 96-36122, WL at * (9th U.S.App. at Cir. March LEXIS determining whether must exercise caution in 31, 1998). Eighth Circuit has allowed punitive damage awards are du- two or more overlapping claims of tortious awards based on cases, multiple punitive plicative ... In some and fraud where the effects interference overlapping damage of re- awards on theories wrong differed and the defendant's intentions all, covery may duplicative not be Phil- two Robertson Oil Co. v. under the claims. represent jury's proper effort to instead punish Co.-, (8th Cir. lips Petroleum 14 F.3d improper and deter all the conduct 1993). argument The First Circuit has made jury underlying ... [I]t the verdict is clear the forcefully, suggesting that "the consider- most discharge was motivated two dis- found the operate multiple recoveries are tinct, (1) ations that to bar illegal political discrimina- factors: legally conceptually inapplicable tion; (2) [plaintiff’s] retaliation for refusal Co., damages.” v. Puerto Rico Oil violated Sanchez to violate state law. One motivation (1st Cir.1994). [plaintiff’s] rights, constitutional while the oth- F.3d damages globally, plaintiffs to an award of three times then- to determine separate negli- for damages.20 rather than in amounts actual In order to calculate the gence and fraud.19 analysis, foregoing we 33 Based on factor, ratio under the seventh Crookston hold that a award however, necessary to determine what it is $143,000, approximately two times the quantum actual is to be com- damages suffered amount of fraud punitive damage award. On a pared with the plaintiff, adequate punish- will serve as remittitur it will be motion for new trial or ment and deterrent. of trial courts to ensure the task damages used as a basis measure of actual University Properties B. calculating the ratio does not result Here, descrip- duplicative plaintiffs award. University Properties acted nothing negligence adds tion of defendants’ through employee, Knapp, throughout its Exactly description of fraud. to the their appellees complain. transaction of which exactly and the same be- same transaction employee are the basis of the The acts of its justification urged punitive are havior subject company’s liability, vicarious and are damages under theories of both' fraud and analysis. aggra the same The chief factor to facts, negligence. these the behavior that On vating against Knapp, the award a lack of punish are intended to and increasing remorse the likelihood of recidi fully by deter is addressed the award for vism, directly separate applicable is not to a Therefore, appropriate fraud. measure corporate entity. recognizes A ratio of 1:1 actual for the calculation of the of wrongful. that defendant’s conduct was $71,336 punitive damages ratio is the award- Moreover, a 1:1 ratio based on the total ed for fraud. damage amount of fraud for which defendant clarify important It is to one liable, jointly severally merely on is and regard fact to use of the additional with portion damage, that this defendant’s of is I, I In we ob Crookston ratios. Crookston significant punishment. puni An award of punitive damages served that if an award of damages equal damages, tive to the fraud accepted falls within ratios “the trial court $71,336 adequate punish is and deter Uni may assume that the award is not exces versity Properties. added). (emphasis sive.” 817 P.2d at 811 “may” permissive, This use of is rather than Companies The Haws C. mandatory; judge may an a trial allow award ¶ 35 connection to the fraud Haws’ accepted within ratios to stand without offer more attenuated than that of the other three ing “any explanation detailed for its deci defendants, arguments and the for a further sion,” id., obliged a trial court is not regard apply remittitur with to Haws with accepted allow an award that falls within is, greater even force. The remitted award ratios to stand without further remittitur. however, acceptable within the ratios we out The Crookston I ratios offer trial courts a floor; presumptive ceiling, presumptive lined in Crookston I. The fact that an award not a not, appropriate jury’s finding support will falls within ratios is it conduct self, punitive damages dispositive appropriateness award of does not entitle as, Jury jury judgment, Instruction directed the such sum in would be [its] reason- "[p]unitive damages may only be awarded if proper punishment able and as a to the defen- compensatory general damages are awarded wrongs, dants for such as wholesome convincing and it clear and is established warning to others not to offend in like manner.” evidence that the acts or omissions of defen- dant were a result of willful and. malicious con- duct, implicitly recog- 20. The trial court's remittitur knowing or conduct that manifested a determining nizes this fact. In the amount of the toward, of, disregard reckless indifference Turner, against remitted award court rights the gave of others.” Postverdict Instruction A averaged statutory penalty for Turner’s con- jury precise regarding more instructions permitted by duct and the three to one ratio punitive damages, determination of require but did not I, arriving Crookston thus at a number well be- separate the assessment of awards for damages. low three times the actual negligence and fraud: was to "award however, award, solely the trial court indi- acts were intentional and not While done employer. further the equal to of interests of the its belief that an award 25% cated unlikely company’s net worth is to result Co., Hodges v. Gibson Prods. bankruptcy, represents award a substan- (Utah 1991). Pangan, also See Clark v. value, percentage of Haws’ and further tial (“This 2000 UT P.2d court required. A reduction is long recognized employer that an can be $50,000, slightly while below a 1:1 award vicariously liable for the intentional tortious ratio, punish and deter Haws employees theory will serve acts of under the of re- participation in reflecting its lesser spondeat superior while if those acts are conducted degree culpability. its scope employment.”) fraud and lower within the Defen- protestations University Proper-

dants’ wholly by Knapp ties was controlled serve to BOTH KNAPP IV. DAMAGES AGAINST Knapp’s illustrate the extent which actions AND UNIVERSITY PROPERTIES employer were authorized his and to ¶ 36 Defendants contend that plausible make the inference that these acts not recover part were undertaken at least to further University Proper Knapp and both University Properties. interests ties, University Properties was owned since These facts enhance rather than diminish the by Knapp controlled and there is no liability University Properties.21 It was University Proper suggest that evidence to jury’s province well within the to make participation ties’ was more active than against Knapp employ- awards both and his “mere ratification.” This claim is without er, University Properties. Corporations ordinarily only merit. act V. THE EXCLUSION OF RESCISSION and, agents, agent through their when the AND RESALE EVIDENCE employment, scope acts within the of his the liability agent’s generally becomes the liabili ¶ 38 also maintain Defendants (2d) ty employer. of of the The Restatement excluding the trial court erred in evi Agency master “[a] the Law of confirms repurchase dence that defendants offered to subject liability for is the torts his discovered, property the after the fraud was acting scope in the servants committed while that, years and four after the transaction in (Sec employment.” of them Restatement question, property it sold the at a substantial ond) (1958). Agency liability § That profit. rulings regard A trial court’s with may liability punitive damages: extend admissibility generally are the of evidence “[t]rial accorded substantial deference: properly Punitive can be awarded making courts have wide latitude determi principal a master or other because relevance, probativeness, prej nations of and if, by agent only of an act an but if ... the North, udice.” State v. 633 East principal managerial agent or a authorized 1997). (Utah The rules of P.2d doing the and the manner of the act.... explicitly evidence allow trial courts to ex (Second) 909(a) § Restatement of Torts probative clude evidence its value is when (1979). by employer “Mere ratification” an “substantially by danger outweighed the justifies employer’s precisely is what an lia- misleading ... ... or confusion of the issues bility agent’s for the actions. jury.” R. the the Utah Evid. Had provisions in 37 We have relied on these proposed been ad evidence the defendants defining an the circumstances under which mitted, plaintiff undoubtedly have would employer can be for the intentional liable regard wished to introduce its own evidence employee, torts of an and have found that money already spent improv ing the it had discovery employer ing property prior an is liable for the torts of its the to its of the employees might put that are committed within the fraud and the use to which it have fraudulently in- scope employment, money if had it not been even the tortious its merely ego argument separate legal entity Knapp’s award arate alter 21. The that a of dam- ages against Knapp University Properties been waived for the is was not made below and has sep- opinion. improper corporation reasons set out in section I of this because the was not right buy property. Admitting right provides it is not absolute. The dueed to judgment may suspended very lien proposed evidence could well have led to to enforce by accompanied by increasingly filing appeal of an the confusion of the bond, statutory might supersedeas speculative evidence of what have been and recent judgment appellee. The amendments allow a lien to be appellants had not defrauded security altogether adequate if is trial court was well within its discretion terminated by excluding posted pending appeal: avoid result evidence. 5(a) any upon judgment appealed, If THE A SUPERSEDEAS USE OF VI. deposit with the court where the notice is A TERMINATE BOND TO filed, security in a form of cash or other LIEN JUDGMENT by the and amount considered sufficient supersedeas stays 39 A bond judgment court that rendered the to se- pending appeal. judgment execution judgment, cure the full amount of the to- 62(d).22 supersedeas A bond Utah R. Civ. P. ongoing any gether with interest and other protects judgment creditor’s interest costs, including anticipated damages or at- surety providing a to whom the creditor torney’s appeal, fees and costs on the lien appeal judgment fail look should the judgment] [the created shall be termi- position financial so deteriorate be debtor’s 5(b). provided in nated as subsection judgment disposition appeal tween (b) security Upon deposit of sufficient payment judgment by the debtor (5)(a), provided in Subsection the court impossible. generally 5 Am. becomes See terminating lien shall enter order Appellate Review, (1996) § 441 Jur.2d granting judgment created ... and (“[T]he purpose is to supersedeas bond judgment perfected creditor a lien by maintaining

protect nonappealing parties security deposited as of date of the appeal quo during the and insur the status original judgment. judg ing that those who have obtained the 78-22-1(5). prejudiced by legislature § ment under review will not be has thus made stay judgment pending policy final determi a decision that some means of releas- a appeal.”) ing judgment property a from a nation of the debtor’s desirable; appeal judgment pending lien is judgment provides A40 lien a legal question before us is whether a the judgment satisfying creditor a means of with supersedeas bond satisfies the conditions of judgment judgment a from a debtor’s real 78-22-1(5). section property. Proper judgment a recordation of ¶41 judgment judgment security” creates a lien on a debt- The inclusion of “other in 78-22-l(5)(a) county clearly property or’s real located the section indicates that judgment legislature contemplated security which the is recorded. Utah Code other 78-22-1(2) (Supp.2001). judgment security §Ann. A than a cash as substitute for the execution, may by by provided judgment require- lien be enforced writ of a lien. The 78-22-l(5)(a) sale, levy, always regard and “has been ments of section are satisfied if security highest rendering ed as the form of to a the court the verdict finds the [credi 23 Blain, 696, security” Belnap v. 575 P.2d 700 “other to be sufficient in “form and tor].” (Utah 1978) omitted). 78-22-l(5)(b) (citation Although imposes amount.” Section judgment requirement, lien statute creates a mechanism to additional The order however. judgments, judgment assist in the enforcement of that releases the lien must also by judgment always regarded appeal appellant 22. "a been "When an is taken the lien has stay, giving supersedeas may a bond obtain a highest security form of to a creditor." Id. stay prohibited by such a law unless is otherwise 897, Cal.Rptr. (quoting 124 541 P.2d at 539 stay or these supersedeas is effective rules.... The when Adams, 229, (1899) Morton v. Cal. 56 P. 1038 124 approved bond is court.” added)). (emphasis Belnap cited In the court 62(d). Utah R. Civ. P. Kinney, mistakenly judgment that a stated debtor, security judgment lien is for a rather than source, Belnap misquotes Kinney its v. Vallen judgment a creditor. 897, tyne, Cal.Rptr. 15 Cal.3d 124 541 P.2d (1975). Kinney In the court observed that

7Q3 “perfected by perfection lien judgment a created offers creditors consid- grant the creditor 78-22-l(5)(b). security.” protection competi- § erable in the event of a deposited in the party “a supersedeas of whether a bond tion for collateral: who has secured question security” within the its interest in accordance with article 9 may as “other serve 78-22-l(5)(a) default, priority, meaning hinges upon “any- on a debtor’s ‘over of Section one, grant judgment anywhere, anyhow” except the court can a as otherwise whether provided by supersedeas remaining priority “perfected a lien” in a Code creditor ” (quoting meaning Insley Mfg. rules.’ Id. at within the of section 78-22- bond Trust, Corp. Draper v. Bank & l(5)(b). (Utah 1986)) (quoting Continental ¶ 42 The statute does not define Griffin, Am. Ins. v. Co. Ga. “ Life compels perfection. ‘This silence us to (1983)). S.E.2d assumption legisla “start with the that the In43 some circumstances recordation of expressed by ordinary purpose is tive ”’ judgment provides public a version of no- meaning Hold of the words used.” WWC protect tice that also serves to the interests Comm’n, Co., ing Inc. v. Pub. Serv. 2001 UT perfection of a creditor. If the function of is ¶28, (quoting 44 P.3d 714 Sec. Indus. priority through provision the creation of Bd. the Fed. Re Ass’n v. Governors Of interest, parties prior of notice to third of a it 137, 149, Sys., serve 468 U.S. 104 S.Ct. possible analogize public is between the omitted)). (1984)(citations A 82 L.Ed.2d 107 by filing notice created and that created security perfected by generally interest judgment. recordation of a In this loose notice; gives perfected public this notice perfection, sense of the term a court security priority over other interests interest grant “perfected” security able interest See, e.g., in the collateral. Black’s Law same likely priority if that interest is to have over (7th 1999) (“Perfection: Dictionary 1157 ed. competitors for the Wheth- same collateral. security against interest as Validation give “perfected” er a court can interest creditors, usu[ually] by filing a other state supersedeas bond in this sense becomes public by taking- ment with some office or judgment question of whether a creditor can collateral.”). possession of the Utah’s enact payment supersedeas enforce bond ment of article 9 of the Uniform Commercial surety guaranteed who that bond. (“UCC”) general concept Code embodies this subject perfection through notice: to enu complains judg 44 Plaintiff that a financing exceptions, merated “a statement security creditor’s is diminished ment security perfect challenge filed all inter bonding company must be fact that “a could 70A-9a-310(l) “surety- § obligation ests.” Utah Code Ann. its under the bond.” The notice, perfec (Supp.2001).24 Through public ship generally to defenses” that are available however, drawn, perfect narrowly priority tion both creates the sureties are (the primarily obligee ing creditor’s claim and warns other credi relate to actions of the surety priority. party tors of that “Perfection means that to whom the owes the obli party steps gation) may the has taken all the increase the extent or likeli secured required bring surety’s liability. generally under article 9 to the interest hood of the See (Third) Suretyship completion priority.” and establish a J.R. Restatement of and Guar to Inc., (1996). Int’l, anty regard §§ Simplot King v. Sales 37-44 The case law Co. priority supersedeas ing 17 P.3d 1100. The the enforcement of bonds is UT complex ority surety paid who amount of a 24. Article 9 of the UCC elaborates a of a has the per- supersedeas scheme for the creation and maintenance of bond relative to other creditors of judgment judicial priorities fection and for the determination of to the debtor. The need for reso- not, is, varying divergent perfection properly priorities by collateral when and is lution of created priority judgment legislative by created or maintained. The schemes has been noted a number security governing priority "the liens relative to other varieties of inter- of commentators: rules ability among ests is included in this scheme. The the various kinds of liens are contained in judgment bodies of law.... The courts are left to terminate liens substitute other diverse resulting Lynn security likely complexi- forms of will create new deal with the inconsistencies.” al., determining among priorities et Transactions: ties in secured M. LoPucki Commercial Re- creditors; (2000). pri- Supplement courts will have to determine the vised Article 9 abundant; relating superse- reading allowing questions cuit’s of the federal rules as arise, security often not in the context of a deas bonds other forms of to substitute for bond, determining surety’s liability on a a supersedeas appropriate circum- bond under surety’s priority among a determining in a requirement stances: “an inflexible of a bond judgment other creditors. These debtor’s age inappropriate would be ... in an surety been assume that the situations damage judgments titanic ... where the re- obligations its under the forced to honor quirement put the defendant’s other would bond; certainty surety’s lia the near jeopardy.” Olympia creditors undue bility early refer is underscored cases Equip., Underlying these 786 F.2d of contract obli ence to the “saeredness assump- concerns for other creditors is the supersedeas in a bond. gations” embodied surety pay tion that the can be forced to N. Pac. R. Loan & Trust Co. v. Farmers’ sureties, bond, full amount of the Co., (E.D.Wis.1896).25 a F. Once equally liability, exposure aware of their judgment appeal is taken is from which an arrange protect will terms to themselves at affirmed, surety supersedeas a bond a on expense Olympia of other creditors. pay judgment judg if must creditor significant re- Equipment raises concerns not, recourse the ment debtor does whatever garding requirement of a of a the effect surety might subsequently have bond, supersedeas concerns which confirm judgment liability prin debtor. “The supersedeas that a the fact bond furnishes surety cipals supersedeas bond on security judgment creditor with considerable judgment was af became absolute when the payment. payment firmed and thereon was default.” Bramblett, surety’s obligation Kan. Mortgage Bankers’ Co. v. 46 If a solvent on its (Kan.1929). 67,68 93-4, clear, 276 P. complains that the bond is still potential insolvency surety of a renders a surety’s priority Consideration supersedeas inadequate of se- bond form relative to other creditors continues to drive curity. competition aWhile for the assets of judicial regarding super- decisions the use of bankrupt surety ques- complex would raise bonds; sedeas Circuit has al- Seventh tions, questions purely speculative are these security lowed the substitution of other for a regard insolvency with this case. The supersedeas pursuant bond to the federal any litigation may ability party to affect the procedure rules of civil because of its as- parties rights con- other to enforce sumption supersedeas provides that a bond judgment; attempts ferred to enforce judgment priority over other creditor with judgments judgment cause debtors Olympia Equip. Leasing creditors. Co. v. protection stay seek of the automatic (7th Co., W. Union Tel. 786 F.2d 797-98 provided bankruptcy under law. Section 78- Cir.1986). rea- Under the Seventh Circuit’s 22-l(5)(a) gives ap- the court discretion to soning, the difficulties associated with the prove any security” “other offered to termi- supersedeas bond are two-fold: a bond for lien; judgment will termi- nate lien judgment guarantees the entire amount of a only proffered security if the “in a nated judgment payment regardless full creditor form and amount considered sufficient competi- fare in of how creditor would judgment court that rendered the to secure tions with other creditors without the securi- § bond, judgment.” the full amount of the 78-22- ty and terms demanded l(5)(a). surety’s If there is evidence of a bonding company may judgment force a impending insolvency, ap- bankruptcy, prejudice the court need debtor into to the plight prove judgment other creditors. for the the termination of lien. Consideration may compels suggestion company of other creditors The mere that a Seventh Cir- gain, exemplifies tendency pecuniary 25. rather than for Farmers' in this vari- accommodation ety surety poorly debtor, judgment of case for the to fare both in its court refused allow the obligations efforts to avoid its on the bond in gone pay surety receivership, who had into judgment subsequent contests with the debtor’s Farmers’, preference mortgagees. in 68 F. 36 mortgagers. Despite surety the fact that in 39. agreed post only this case had the bond as an ¶ point Having himself, in disqualified insolvent at some the future become Associate Chief Justice proposition that a DURRANT does not is insufficient defeat herein; participate Appeals Judge Court of may security pay- for supersedeas bond offer A. WILLIAM THORNE sat. degree required by ment to the section 78- (5).26 22-1

¶ judgment 47 A lien ais creature of

statute, legislature it is for the to alter

the terms of its creation and termination. legislature perfec

While has not defined 78-22-l(5)(b) precisely, tion under section 2002 UT 130 supersedeas provide “perfected” bond LOVENDAHL, Lovendahl, James Sue security general per interest sense of Wesley Lovendahl, Plaintiffs and creating priority fection as notice that cre Appellants, high degree security in turn a ates for v. payment. supersedeas We conclude that a bond determined to be sufficient in form and DISTRICT, JORDAN SCHOOL judge may amount serve as Appellee. Defendant and security” judg “other sufficient to release 20010274. No. 78-22-1(5). ment lien under section

Supreme Court of Utah. CONCLUSION Dec. I 48 Our consideration of the Crookston

factors mandates a further remittitur defendants, appealing

each of the and we appropriate

have indicated the amounts. We

affirm the trial court’s determination that the

supersedeas security bond was sufficient to judgment

terminate the lien. WILKINS, Judge 49 Justice

THORNE concur Chief Justice opinion.

DURHAM’S 50 Justice RUSSON concurs

result.

HOWE, Justice, concurring and

concurring in the result: I, II, IV, V, parts 51 I concur in and VI majority only opinion. I concur in the part expressly I

result of III. do not endorse

any Campbell of this court’s decision in v.

State Farm Mutual Automobile Insurance

Co., in, participate that I decision did not

being disqualified to sit in that case. specific support Department

26. Plaintiffs offer no for their ers is included on the Trea- suggestion particular company, sury’s Listing Approved Department that this Travel- Sureties. America, Casualty Surety Treasury July Company ers Circular effective likely to become insolvent. We note that Travel-

Case Details

Case Name: Diversified Holdings, L.C. v. Turner

Court Name: Utah Supreme Court

Date Published: Dec 27, 2002

Citation: 63 P.3d 686

Docket Number: 20000730, 20010021

Court Abbreviation: Utah