JODI JENSEN, Appellant and Cross-appellee, v. GARY CANNON, Appellee and Cross-appellant.
No. 20190433-CA
THE UTAH COURT OF APPEALS
August 27, 2020
2020 UT App 124
Third District Court, Salt Lake Department; The Honorable Patrick Corum; No. 160904276
Bruce M. Pritchett Jr. and Robert D. Strieper, Attorneys for
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGE DAVID N. MORTENSEN concurred. JUDGE RYAN M. HARRIS concurred in part and concurred in the result, with opinion.
POHLMAN, Judge:
¶1 Jodi Jensen and Gary Cannon divorced in March 1998. More than a decade later, Jensen filed an independent action seeking relief from the parties’ divorce decree on the basis that Cannon failed to disclose certain assets during the divorce proceedings. The district court largely resolved the dispute in Cannon‘s favor through summary judgment and a bench trial. In this appeal and cross-appeal, Jensen and Cannon challenge several of the district court‘s rulings resolving Jensen‘s claims and denying Cannon‘s motions. We affirm the challenged rulings.
BACKGROUND
¶2 Jensen and Cannon married in 1987 and divorced in 1998. Before the parties divorced, they entered into a settlement agreement resolving “any and all disputes” regarding “the distribution of real and personal property acquired by them during the course of their marriage” and dividing identified assets. (Cleaned up.) The agreement was incorporated into the divorce decree.
¶3 Some years later, Jensen began to suspect that Cannon had not disclosed all of his assets during the divorce proceedings. She accordingly filed suit against Cannon in 2009, alleging that Cannon had committed fraud in not disclosing certain assets. After several years, that case was dismissed without prejudice by stipulation. In 2016, within one year of the dismissal, Jensen re-filed her complaint, again alleging that Cannon committed fraud by not disclosing certain assets during the divorce proceedings. She subsequently amended her complaint, adding claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, unjust enrichment, accounting, and fraudulent nondisclosure.
¶4 As relevant here, Jensen alleged that at the time of their divorce, Cannon held an interest in two assets: a 3.89-acre parcel of real property Jensen has identified on appeal as the Riverton Corners property and an option (the Option Agreement) to purchase a different 3.4-acre parcel of land Jensen has identified as the Green property. Jensen claimed that Cannon did not disclose either asset during the divorce proceedings.
¶5 Cannon moved for summary judgment on all Jensen‘s claims. He argued that Jensen‘s non-fraud claims should be dismissed because they constituted an “improper[] attempt to modify the divorce decree” and were untimely and improper under
¶6 The district court granted the motion in part and denied it in part. The court awarded Cannon judgment on some of Jensen‘s fraud-based claims but concluded that Jensen could “proceed with her [fraud] and [fraudulent nondisclosure] causes of action” with respect to the Riverton Corners and Green properties. The court also dismissed Jensen‘s claims for breach of the covenant of good faith and fair dealing, negligent misrepresentation, accounting, and unjust enrichment. The court rendered no ruling on Cannon‘s request for bad faith attorney fees in its summary judgment ruling.
¶7 The case proceeded to a bench trial. At the trial‘s conclusion, the court determined that Jensen had not carried her burden of proving her fraud claims by clear and convincing evidence. The court stated that the central issue on the fraud claims was whether Cannon knew the Option Agreement and the Riverton Corners property were assets “that he needed to disclose during the divorce.” The court found that Cannon credibly testified that he did not know he was required to disclose those assets and that he
¶8 The district court also denied Cannon‘s request for bad faith attorney fees under
¶9 Finally, the district court also denied a motion filed by Cannon for sanctions against Jensen under
¶10 In response, Cannon filed a motion requesting that Jensen be sanctioned under
¶11 Jensen now appeals the district court‘s conclusion that she failed to prove her fraudulent nondisclosure claim with respect to the Option Agreement and the Riverton Corners property. She also appeals the court‘s dismissal of her non-fraud claims on summary judgment. Cannon cross-appeals, challenging the court‘s denial of his request for bad faith attorney fees and for
ISSUES AND STANDARDS OF REVIEW
¶12 Jensen first challenges the district court‘s determination that she did not prove her fraudulent nondisclosure claim regarding the Riverton Corners property and the Option Agreement, arguing that the court misconstrued the elements of the claim. We review a district court‘s legal conclusions for correctness. See Reynolds v. MacFarlane, 2014 UT App 57, ¶ 11, 322 P.3d 755; see also Nielsen v. Spencer, 2008 UT App 375, ¶ 10, 196 P.3d 616 (stating that we review issues concerning the elements of a tort claim for correctness).
¶13 Jensen next challenges the district court‘s dismissal of her non-fraud claims on summary judgment. She argues that the district court erroneously dismissed those claims due to its misinterpretation of
¶15 Finally, Cannon challenges the district court‘s denial of his motion for sanctions against Jensen under
ANALYSIS
I. Jensen‘s Appeal
A. Fraudulent Nondisclosure
¶16 Jensen challenges the district court‘s determination that she did not prove all the elements of her fraudulent nondisclosure claim by clear and convincing evidence. “To prevail on a claim for fraudulent nondisclosure, a plaintiff must prove by clear and convincing evidence that (1) the defendant had a legal duty to communicate information, (2) the defendant knew of the information he failed to disclose, and (3) the nondisclosed information was material.” Anderson v. Kriser, 2011 UT 66, ¶ 22, 266 P.3d 819 (cleaned up); accord Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 29, 254 P.3d 161; Mitchell v. Christensen, 2001 UT 80, ¶ 9, 31 P.3d 572.
¶17 In evaluating Jensen‘s fraudulent nondisclosure claim, the district court determined that the “core issue” regarding the Option Agreement and the Riverton Corners property was whether Cannon knew that they were “asset[s] that he needed to disclose during the divorce.” The court found that Cannon credibly testified with respect to both “that he did not know” he needed to disclose them. Regarding the Option Agreement specifically, the court found that Cannon had an “option with the Greens[] to act as their real estate agent,” not an option “to purchase and hold the land,” and that there was no “clear and convincing evidence that [Cannon] knew [the Option Agreement] was an asset that would require disclosure” where, at the relevant time, “he did not believe the real estate option to have value,” given that it “was a potential future interest in land.” And for the Riverton Corners property, the court determined that “there was no evidence” that Cannon “intended to deceive” Jensen about the property. The court found that Cannon “convincingly testified” that he “did not view [the property] as something he needed to disclose as an asset” because he did not believe he owned an interest in it.
¶18 Jensen argues that the court “erred when it extended the element of knowledge” beyond mere knowledge of the asset to Cannon‘s knowledge that “he had to disclose the assets.” She faults the court for basing its judgment on Cannon‘s “testimony that he did not believe he had to disclose” the Option Agreement and the Riverton Corners property rather than on his knowledge of these properties in the abstract. In this respect, she contends that the relevant issue to prove the fraudulent nondisclosure claim was simply whether Cannon knew of the Option Agreement and the Riverton Corners property, and that it was inappropriate for the court to consider Cannon‘s subjective belief about whether they were “assets” that needed to be disclosed.2
¶20 We also recognize that in other jurisdictions, the tort of fraudulent nondisclosure has been described a variety of ways, some of which do not necessarily depend on establishing a fraudulent intent. For example, some courts separately recognize the tort of fraudulent concealment, which requires an intent to conceal, and the tort of fraudulent nondisclosure, which requires only the breach of a duty to disclose. See United States v. Colton, 231 F.3d 890, 898–900 & n.2 (4th Cir. 2000) (explaining the difference between fraudulent concealment, which requires an intent to deceive, and fraudulent nondisclosure, which requires the failure to disclose when there is a duty to do so, and collecting cases from jurisdictions that recognize a distinction between fraudulent concealment and fraudulent nondisclosure on this basis and those that do not); Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 21–22, 35–36 (Ariz. 2002) (en banc) (discussing the difference between fraudulent concealment, which requires an intent to conceal, and fraudulent nondisclosure, which requires only a duty to disclose). See generally Restatement (Second) of Torts §§ 550, 551 (Am. Law Inst. 1977) (discussing requirements of concealment versus nondisclosure).
¶21 Utah, however, does not draw a distinction between the torts of fraudulent nondisclosure and fraudulent concealment. In this state, “the elements for fraudulent nondisclosure are essentially the same as those for fraudulent concealment,” and our courts have “sometimes used the names of the two causes of action interchangeably.” Anderson, 2011 UT 66, ¶ 22 n.11. And while intent is not a listed element of fraudulent nondisclosure claims, our supreme court has nevertheless emphasized that “fraudulent nondisclosure is an intentional tort” and that “intent is the hallmark” of intentional torts. Id. ¶ 26.
¶22 In so stating, the Anderson court plainly described the tort of fraudulent nondisclosure as dependent on the actor‘s intent. Id. ¶¶ 25–26; see also Marcantel v. Michael & Sonja Saltman Family Trust, No. 2:16-cv-250-DBP, 2019 WL 1262648, at *5–7, *11 (D. Utah Mar. 19, 2019) (discussing Anderson, explaining that fraudulent intent is an element of the tort of fraudulent nondisclosure, and applying the element of intent accordingly to resolve the fraudulent nondisclosure claims at issue). To make this point, the Anderson court contrasted fraudulent nondisclosure with negligent nondisclosure, explaining that the “essential difference” between the two claims “is the mental state of the defendant that the plaintiff must establish in order to prevail.” Anderson, 2011 UT 66, 25. For fraudulent nondisclosure, a defendant must have “a willful intent to deceive,” while for negligent nondisclosure, the plaintiff “is not required to demonstrate any wrongful intent on the part of the defendant.” Id. (cleaned up); see also Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 n.2 (Utah 1986) (explaining that “negligent misrepresentation does not require the intentional mental state necessary to establish fraud“); Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 11, 314 P.3d 1079 (“The elements of negligent misrepresentation are similar to
¶23 Applying these principles, we conclude that the district court properly considered Cannon‘s beliefs—i.e., his mental state—in determining whether Cannon knew of the information he failed to disclose. To be sure, Cannon knew of the Option Agreement and the Riverton Corners property during the divorce proceedings. But importantly, the court credited Cannon‘s testimony that he did not know that the Option Agreement and the Riverton Corners property were “asset[s]” responsive to Jensen‘s discovery request. And because Cannon did not know they were responsive to Jensen‘s discovery, Cannon lacked a “willful intent to deceive,” as is required for fraudulent nondisclosure. See Anderson, 2011 UT 66, ¶¶ 25–26 (cleaned up); see also Marcantel, 2019 WL 1262648, at *6-7 (looking at the circumstances surrounding the alleged fraudulent nondisclosure to conclude that a mere knowledge of an easement and a failure to disclose it did not amount to fraudulent intent).
¶24 In his separate opinion, Judge Harris disagrees with our interpretation of Anderson. He contends that in applying the supreme court‘s instruction about willful intent to the circumstances of this case, we have “tack[ed] on a new fourth element never before discussed as such by any Utah appellate opinion.” Infra ¶ 58. We respectfully disagree with Judge Harris‘s assessment of our analysis. We have not added a fourth element to the tort of fraudulent nondisclosure any more than the supreme court did in Anderson. Rather, we believe we are merely following the lead of Anderson in recognizing that an intent to deceive must necessarily inform the application of the tort‘s three elements.
¶25 The court in Anderson addressed the contours of the second element of the tort: that “the defendant knew of the information he failed to disclose.” 2011 UT 66, ¶¶ 22, 24 (cleaned up). In particular, the court resolved “whether satisfaction of this element requires a showing of actual, or merely constructive, knowledge,” id. ¶ 24, emphasizing that the tort of fraudulent nondisclosure is a tort committed by someone acting with fraudulent intent, or the intent to deceive, id. ¶¶ 25–26. The court then concluded that the tort must require actual knowledge of the undisclosed information, because to conclude otherwise would overlook the intentional nature of the tort. Id. ¶ 26. The court explained it would be “unreasonable and illogical to infer that the defendant intended to conceal [a nondisclosed] fact” if the defendant did not have actual knowledge of it. Id.
¶26 Similarly, here, the three elements of nondisclosure do not answer the specific question the district court (and now this court) have been called on to resolve: whether satisfaction of the knowledge element requires that Cannon knew of the Option Agreement and the Riverton Corners property in the abstract or that he knew that the properties were assets as defined by Jensen‘s discovery requests. To answer that question, we do not add a fourth element to the tort. Instead, like the supreme court in Anderson, we resolve that unanswered question by acknowledging that “fraudulent nondisclosure is an intentional tort.” Id. And we conclude that when a defendant like Cannon lacks the knowledge that a particular property is an asset for purposes of discovery (as the district court found), “it is both unreasonable and illogical to infer that [he] intended to conceal that fact.” Id. “Indeed, permitting a plaintiff to state a claim for fraudulent nondisclosure without proving actual knowledge on the part of the defendant would allow a plaintiff to convert merely negligent acts into fraudulent acts.” Id.
¶27 Finally, we take no issue with Judge Harris‘s conclusion that fraudulent intent for purposes of a fraudulent nondisclosure claim may be inferred when a plaintiff shows that a defendant had actual knowledge of a material fact and failed to disclose that fact. See infra ¶¶ 60, 63. The supreme court
¶28 For these reasons, we conclude that the court did not improperly extend or apply the elements of fraudulent nondisclosure in considering Cannon‘s beliefs about whether the Option Agreement and the Riverton Corners property had to be disclosed. Accordingly, we affirm the court‘s judgment on Jensen‘s fraudulent nondisclosure claim.3
B. Jensen‘s Non-fraud Claims
¶29 In addition to asserting claims for fraud and fraudulent nondisclosure, Jensen sought relief from the divorce decree based on theories of negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, accounting, and unjust enrichment (the non-fraud claims). Cannon moved for summary judgment on these claims, arguing that they were untimely and improper under
¶30 Jensen challenges the court‘s summary judgment decision, contending that the plain language of
¶31
¶32 Second,
¶33 When Jensen discovered Cannon‘s alleged fraud, the window of time for her to seek relief for that fraud under
¶34
¶35 Neither party dissects the grammar of the sentence; each simply insists his or her interpretation is the right one. And, in fairness, the sentence could perhaps be read either way.5 But this issue does not come to us on a blank slate. Our supreme court has previously endorsed the viability of independent actions for relief from a judgment on grounds other than fraud. Thus, on this point we agree with Jensen.
¶36 In St. Pierre v. Edmonds, 645 P.2d 615 (Utah 1982), the court acknowledged the district court‘s power to entertain an independent action predicated on “duress” arising out of the “physical and mental intimidation” directed at the appellant by the other party in the underlying suit. Id. at 618–20. And in Gillmor v. Wright, 850 P.2d 431 (Utah 1993), the court recognized accident and mutual mistake as grounds on which an independent action may be asserted in equity under rule 60.6 Id.
at 435-36. In fact, the Gillmor court rejected the appellant‘s reading of St. Pierre as providing that “an independent action in equity is justified only when particularly egregious behavior has resulted in an unconscionable judgment or order.” Id. at 435. Observing that ”St. Pierre involved allegations of fraud upon the court,” the court explained, “The case did not state that an independent action will only lie for such claims or that such an action is no longer viable to remedy errors based on mutual mistakes of fact in legal descriptions.” Id. In support, the court pointed to its reliance in St. Pierre on federal treatises for the proposition
¶37 Although Gillmor and St. Pierre compel us to conclude that “fraud upon the court” is not the only basis for relief from judgment in an independent action, Jensen has not persuaded us that her negligence-based claims are a viable basis for such relief. Rather, our courts have generally rejected the idea that claims akin to negligence are adequate to wage an independent collateral attack on a judgment.
¶38 In this respect, the decision in Christensen v. Christensen, 619 P.2d 1372 (Utah 1980), is noteworthy. There, the court rejected an appellant‘s attempt to set aside an award of property to her former husband based on a claim of negligent misrepresentation. Id. at 1372–74. The appellant had originally argued in her independent action that her ex-husband had fraudulently misrepresented the value of certain property—an apartment complex—during the divorce proceedings. Id. at 1372–73. After the district court ruled against her on the fraud claim, she argued that “even though [the ex-husband‘s] conduct did not constitute fraud, the Court should have modified the original decree and given her part of the equity in the apartment complex in light of the disparity between the actual value of the property and the value she was led to believe that it had at that time.” Id. at 1373. The supreme court rejected her claim. Left with only “an alleged nonfraudulent misrepresentation by the [ex-husband],” the court held that “[s]uch facts would not justify overturning a stipulated property settlement and redistributing the property.” Id. The court expressed sympathy for the appellant‘s position but affirmed the district court, stating that it “[could not] now upset a stipulated property settlement because of her having relied upon values furnished by her husband in an adversary proceeding.” Id. at 1373–74.
¶39 To the extent Jensen seeks to rely on an alleged negligent misrepresentation during the course of her divorce proceeding, in our view, there is no basis on which to distinguish this case from Christensen. At the very least, we are aware of no case in Utah (nor has Jensen directed us to one) where a court has permitted a collateral attack on a judgment through an independent action raising only negligence-based claims.7
Like in Christensen, Jensen may have been mistaken as to the value of her stipulated property settlement due to the alleged negligent misrepresentations of her husband, but such facts are inadequate to relieve her from the divorce decree. See id.; see also Pepper, 801 P.2d at 150–51 (explaining that while
II. Cannon‘s Cross-appeal
¶40 In his cross-appeal, Cannon challenges the district court‘s denial of both his request for bad faith attorney fees under
A. Bad Faith Attorney Fees
¶41 Cannon challenges the district court‘s denial of fees under
¶42 To receive an award of attorney fees under
¶ 43 We conclude that Cannon has not demonstrated that the district court erred by denying his request for attorney fees. As the party requesting fees under
¶ 44 We review the district court‘s finding regarding bad faith for clear error, Bresee v. Barton, 2016 UT App 220, ¶ 15, 387 P.3d 536, and will reverse that finding only if it is “against the clear weight of the evidence” or “we otherwise reach a firm conviction that a mistake has been made,” Grimm v. DxNA LLC, 2018 UT App 115, ¶ 12, 427 P.3d 571 (cleaned up). While litigating with Jensen over the course of the last decade has undoubtedly been expensive and frustrating for Cannon, his arguments have not persuaded us that the court clearly erred in finding that Jensen brought this action in good faith.8
B. Rule 11 Sanctions
¶ 45 Cannon next argues that the district court erred in denying his motion for sanctions against Jensen under
¶ 46 The district court denied Cannon‘s motion because it determined that while “there may not be direct evidentiary support for the contention” that Cannon spoliated a written version of the Option Agreement, “there are inferences” that could support that position. The court reached this conclusion by considering the circumstances surrounding the Option Agreement, including the parties to the contract and their experience, as well as the type of contract involved and statute of frauds considerations. In this respect, the court stated that while it did not view Jensen‘s spoliation motion to be a “good motion,” it did not believe the motion rose to the level of a
¶ 47 On appeal, Cannon assails the court‘s denial of his motion, arguing that by accusing him of spoliation, Jensen necessarily asserted that he “intentionally and inappropriately” destroyed the Option Agreement document and that sanctions are merited for such an assertion because it was “baseless.”9 Cannon also contends that because Jensen “permitted so many years to go by” before actively prosecuting her case, she could not “in good faith” ask the district court to infer that Cannon spoliated a decades-old document. We disagree.
¶ 48 Our courts have explained that ”
¶ 49 At the outset, we are not persuaded that Jensen‘s spoliation motion was tantamount to an accusation of an intentional and inappropriate destruction of the Option Agreement. For one thing, nowhere in her motion in limine, seeking sanctions under
¶ 50 We also agree with the district court that given the type of agreement involved—
¶ 51 Because Cannon has not persuaded us that the district court erred by denying his request for
C. Rule 33 Fees on Appeal
¶ 52 Finally, Cannon requests his attorney fees on appeal pursuant to
CONCLUSION
¶ 53 We affirm on the issues raised by Jensen‘s appeal. First, we conclude that the district court appropriately determined that Jensen did not establish her fraudulent nondisclosure claims. Second, we conclude that the court properly dismissed Jensen‘s negligence-based claims under
¶ 54 We also affirm on the issues raised by Cannon‘s cross-appeal. Specifically, we affirm the district court‘s denial of Cannon‘s request for bad faith attorney fees and his motion for sanctions pursuant to
HARRIS, Judge (concurring in part, and concurring in the result):
¶ 55 I concur without reservation in Parts I.B. and II of the majority opinion. That is, I agree with the majority‘s disposition of Cannon‘s cross-appeal, as well as with the majority‘s explanation of why the district court was correct to dismiss Jensen‘s non-fraud claims on summary judgment. But I cannot sign on to the majority‘s analysis in Part I.A., regarding Jensen‘s claim for fraudulent nondisclosure, because in my view the majority adds a fourth element to our supreme court‘s three-element test for establishing fraudulent nondisclosure under Utah law. Nevertheless, I concur in the result reached by the majority, because I am persuaded that the district court correctly dismissed Jensen‘s fraudulent nondisclosure claim on the alternative ground that it was barred by the doctrine of laches.
I.
¶ 56 In the course of analyzing whether the district court properly dismissed Jensen‘s claim for fraudulent nondisclosure, we are called upon to interpret our supreme court‘s statements in Anderson v. Kriser, 2011 UT 66, 266 P.3d 819, and apply those statements to the facts of this case. As an introductory matter, I readily acknowledge that Anderson, as applied to the question presented here, is difficult to interpret, and that it may well be that our supreme court intended Anderson to read as the majority has interpreted it. But I read Anderson differently,
¶ 57 In my view, our supreme court has articulated the tort of fraudulent nondisclosure as containing three elements—not four. At the outset of its analysis, the majority correctly recites those elements. See supra ¶ 16 (citing Anderson, 2011 UT 66, ¶ 22). They are as follows: “(1) the defendant had a legal duty to communicate information; (2) the defendant knew of the information he failed to disclose; and (3) the nondisclosed information was material.”10 Anderson, 2011 UT 66, ¶ 22 (cleaned up). In every case in which our supreme court has discussed fraudulent nondisclosure, it has described the tort as being comprised of these same three elements. See, e.g., Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 29, 254 P.3d 161; Mitchell v. Christensen, 2001 UT 80, ¶ 9, 31 P.3d 572. To my knowledge, the court has never described this tort as containing a fourth element.
¶ 58 Yet both the district court as well as the majority in this case tack on a new fourth element never before discussed as such by any Utah appellate opinion.11 According to the majority, a plaintiff who wishes to make out a valid claim for fraudulent nondisclosure must not only satisfy the three listed elements, but in addition must also prove that the defendant had a “willful intent to deceive” the plaintiff. See supra ¶¶ 22–23. In my view, the addition of this fourth element is unsupported by existing Utah Supreme Court precedent.
¶ 59 I have no quarrel with the majority‘s observation—supported by Anderson—that fraudulent nondisclosure is an intentional tort, and that such torts are generally distinguished from non-intentional torts by the “mental state of the defendant that the plaintiff must establish in order to prevail.” See Anderson, 2011 UT 66, ¶¶ 25–26. But I read Anderson as explaining that the three elements, as listed, have an intent requirement already baked into them, and that a plaintiff who satisfies all three listed elements has raised a sufficient inference that the defendant acted intentionally.12 Id. ¶ 26. In this way, the three listed elements already distinguish the tort from its negligence-based cousin; no unlisted fourth element is necessary for this purpose.
¶ 60 As the court explained in Anderson, “fraudulent intent is often difficult to prove by direct evidence” and, “[b]ecause of this difficulty,” in other contexts—citing specifically to criminal theft and bankruptcy nondischargeability cases, see id. ¶ 26 n.26—“fraudulent intent is often inferred based on
¶ 61 In my view, this formulation of the tort is not only sufficiently distinct from negligent nondisclosure, but it is also—as the majority acknowledges, supra ¶ 19—consistent with our law‘s formulation of other similar intentional torts, such as constructive fraud. See Jensen v. IHC Hosps., Inc., 944 P.2d 327, 339 (Utah 1997) (stating that the tort of constructive fraud contains only “two elements: (i) a confidential relationship between the parties; and (ii) a failure to disclose material facts“). And—as the majority also acknowledges, supra ¶ 20—it is also consistent with the manner in which some other states formulate the elements of the fraudulent nondisclosure tort. See, e.g.,
¶ 62 The majority points out that our supreme court has used the terms “fraudulent concealment” and “fraudulent nondisclosure” more or less interchangeably, and has even noted that the elements of the two torts are “essentially the same,” see supra ¶ 21 (citing Anderson, 2011 UT 66, ¶ 22 n.11), and infers from that fact that the apparently-combined tort must look more like fraudulent concealment than fraudulent nondisclosure, and therefore must have a separate intent requirement. But it is just as easy to draw the opposite inference from the supreme court‘s apparent merger of the two torts: that the merged tort looks more like fraudulent nondisclosure, as described in the
¶ 63 For all of these reasons, I would conclude that the district court erred by requiring Jensen to prove, as part of her fraudulent nondisclosure claim, that Cannon had a specific intent to deceive her. Jensen should only be required to prove the three elements of the tort listed in Anderson. Under my interpretation of that case, Jensen can make out a valid claim by demonstrating that Cannon had a duty to disclose the Riverton Corners property and the Option Agreement to Jensen during the divorce proceedings; that Cannon had actual knowledge of those assets; and that those assets were material. As
¶ 64 If the majority had adopted my interpretation of Anderson—that the tort of fraudulent nondisclosure does not require a direct showing of intent to deceive—we would have had to confront a number of additional questions regarding the viability of Jensen‘s fraudulent nondisclosure claim. First, we would have had to determine whether the “legal duty to communicate information” described in the first element of the tort, see id. ¶ 22 (cleaned up), includes discovery disclosure obligations imposed by
¶ 65 Second, if discovery disclosure obligations qualify as legal duties for the purposes of the tort, we would then have had to determine whether Cannon had a duty to disclose the specific properties at issue here: the Riverton Corners property and the Option Agreement. Because the discovery rules obligated him to disclose his “assets” to Jensen, we would have then had to determine whether the Riverton Corners property and the Option Agreement were “assets” subject to Cannon‘s disclosure obligation. That inquiry, in turn—at least with respect to the Riverton Corners property—may have required us to analyze partnership law, given Cannon‘s defense that the Riverton Corners property did not belong to him or his partnership but, instead, belonged to his partner.14
¶ 66 Next, we may have had to confront other issues raised by Jensen in her appeal, including whether the district court properly excluded one of Jensen‘s expert witnesses, and whether the district court correctly valued the Option Agreement.
II.
¶ 67 But I need not further explore these issues in this concurring opinion, because in my view the district court‘s alternative disposition of Jensen‘s claim for fraudulent nondisclosure—that Jensen‘s suit was barred by the equitable doctrine of laches—was correct. On that basis, I concur in the result reached by the majority opinion.
¶ 68 The doctrine of laches “has two elements: (1) a party‘s lack of diligence and (2) an injury resulting from that lack of diligence.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 19, 321 P.3d 1021 (cleaned up). As our supreme court has explained, “laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights.” Id. ¶ 17 (cleaned up). Accordingly, the doctrine of laches punishes plaintiffs
¶ 69 The language of the two-part laches test, as articulated by our supreme court, is broad. That test requires a defendant to demonstrate the existence of two elements: the plaintiff‘s “lack of diligence,” and a resulting injury to the defendant. Insight Assets, 2013 UT 47, ¶ 19. So, although laches cases often turn on whether the plaintiff delayed in bringing suit in the first place, see Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (asking whether “the plaintiff unreasonably delayed in bringing an action” to fulfill the first laches element), the doctrine is not limited in application to only that circumstance. As our supreme court has explained, “laches is designed to shelter a prejudiced defendant from the difficulties of litigating meritorious claims after an unexplained delay,” Horne, 2012 UT 66, ¶ 37, and no Utah case of which I am aware has limited the definition of laches-triggering “delay” to the delay in filing the lawsuit in the first place.
¶ 70 Other courts have expressly recognized that the equitable doctrine of laches can apply when a litigant who files an otherwise-timely lawsuit takes an inordinately long time to prosecute it. See, e.g., Miller v. Bloomberg, 466 N.E.2d 1342, 1346 (Ill. App. Ct. 1984) (stating that “failure to prosecute an action after its commencement can also constitute laches“); Thompson v. State, 31 N.E.3d 1002, 1007 (Ind. Ct. App. 2015) (holding that the doctrine of laches applies to unreasonable delays in “prosecuting a . . . petition“); see also Atlas One Fin. Group, LLC v. Alarcon, No. 12-23400-Civ-COOKE/TURNOFF, 2014 WL 12570243, at *4 (S.D. Fla. Mar. 31, 2014) (“Under the doctrine of laches, a person otherwise entitled to relief may be barred from recovery if he has failed to bring or, having brought, has failed to prosecute, a suit for so long a time and under such circumstances that it would be inequitable to permit him now to prosecute the suit.“).
¶ 71 Accordingly, in my view the district court properly determined, as a legal matter, that the doctrine of laches can apply to situations in which a litigant takes an unreasonably long time to prosecute a lawsuit, and is not limited to situations in which a litigant unreasonably delays in filing one. See Veysey v. Nelson, 2017 UT App 77, ¶ 5, 397 P.3d 846 (“Whether laches applies is a question of law, which we review for correctness.“).
¶ 72 After it is established, as a legal matter, that the doctrine can apply in a particular case, the “application of laches to a particular set of facts and circumstances presents a mixed question of law and fact,” a framework whereunder “we review the [district] court‘s conclusions of law for correctness and will disturb its findings of fact only if they are clearly erroneous.” Id. (cleaned up). In my view, the district court‘s underlying factual findings regarding laches were not clearly erroneous, and the court did not err by concluding that Cannon was prejudiced by Jensen‘s unreasonable delay in prosecuting the case.
¶ 73 The district court determined that the filing of Jensen‘s lawsuit occurred within the applicable statute of limitations, and no party has appealed that determination. Accordingly, the district court does not appear to have held any pre-filing delay against Jensen in connection with its laches analysis. Instead, the court noted that, after the suit was filed, almost nothing occurred for some six years, resulting in multiple order-to-show-cause hearings before the suit was eventually dismissed, without prejudice. Another whole year passed before the suit was refiled, resulting in approximately seven years of post-filing delay that the district court attributed entirely to Jensen. The court found that, during that time, witnesses’ “memories faded
¶ 74 I discern no error in the district court‘s findings or conclusions with regard to laches, and therefore I would affirm the court‘s dismissal of Jensen‘s fraudulent nondisclosure claim on that basis. I therefore concur in the result reached by the majority.