STATE of Utah, Plaintiff and Appellee, v. Jamil K. CORBITT, Defendant and Appellant.
No. 20020375-CA.
Court of Appeals of Utah.
Dec. 4, 2003.
2003 UT App 417
Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
OPINION
BILLINGS, Associate Presiding Judge:
¶1 Jamil Corbitt appeals from an order of restitution stemming from his conviction for possession of a stolen vehicle, a second degree felony, in violation of
BACKGROUND
¶2 In January 2001, Roman and Francesca Lopez (the Lopezes) purchased a 1998 Dodge Dakota (the truck) from an auto dealership in Murray for $15,995.00. Concurrently, the Lopezes purchased a thirty-six month or 80,000 mile service contract for $1,999.00 and paid $1,123.92 for taxes and licensing fees. In total, the Lopezes paid $19,117.92. To finance the purchase, the Lopezes made a $500.00 down payment, traded in another vehicle for a net trade-in allowance of $1,475.00, and obtained a bank loan for the remaining balance of $17,142.92. The loan carried an annual interest rate of 16.6% and required monthly payments of $425.63 for sixty months.
¶3 About two weeks later, in February 2001, the truck was stolen from the Lopezes’ residence. On the day of the theft, the Lopezes contacted police and their insurance company. The police listed the truck in the stolen vehicle database and began efforts to locate it. Ultimately, the insurance company took title to the truck and paid $12,489.10 to the Lopezes’ lender. However, the Lopezes testified that they were still obligated to continue making monthly payments on the unpaid balance of their loan. Accordingly, the Lopezes made loan payments of $425.63 in both February and March 2001. By the time of the restitution hearing, the Lopezes testified they still owed $4,772.46 to the lender.
¶4 On April 16, 2001, during a traffic stop, a Salt Lake County Sheriff‘s deputy learned that Corbitt was driving the Lopezes’ stolen truck. The State filed charges against Corbitt for illegal possession of a stolen vehicle. Corbitt admitted he knew the truck was stolen and pleaded guilty as charged.
ISSUE AND STANDARD OF REVIEW
¶6 Corbitt contends the trial court erred in ordering him to pay any restitution after the insurance company paid the Lopezes’ claim. “Trial courts are vested with ‘wide latitude and discretion in sentencing,‘” State v. Fedorowicz, 2002 UT 67, ¶63, 52 P.3d 1194 (quoting State v. Woodland, 945 P.2d 665, 671 (Utah 1997)), and we “‘will not disturb a trial court‘s restitution order unless it exceeds that prescribed by law or otherwise abused its discretion.‘” State v. Mast, 2001 UT App 402, ¶7, 40 P.3d 1143 (quoting State v. Breeze, 2001 UT App 200, ¶5, 29 P.3d 19). “[T]he exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court.” State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).
ANALYSIS
I. Pecuniary Damages Under the Restitution Statute
¶7 First, Corbitt argues the trial court erred in concluding the Lopezes suffered pecuniary damages1. Corbitt asserts that under
¶8 The restitution statute provides:
“Pecuniary damages” means all special damages, but not general damages,2 which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant‘s criminal activities and includes the money equivalent of property taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical expenses.
¶9 “[T]he record in the case before us reflects that the State presented evidence which would support a civil conversion action against [Corbitt],” State v. McBride, 940 P.2d 539, 543 (Utah Ct.App.1997), as well as an award of damages from such an action. We have stated that generally, “the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest.” Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994). Further, “[t]he damages in an action for conversion are measured by the sum of money necessary to compensate the plaintiff for all actual losses or injuries sustained as a natural and proximate result of the defendant‘s wrong.” Id. (quotations and citations omitted). Finally, “[t]he primary objective in rendering an award of damages for conversion is to award the injured party full compensation for actual losses.” Id. (quotations and citations omitted). Hence, “rules relating to the measure of damages are flexible,
¶10 Corbitt argues that because the insurance company paid the Lopezes’ claim, the Lopezes were “fully reimbursed” for all losses they sustained and thus did not suffer pecuniary damages. Therefore, Corbitt argues that the trial court‘s order of restitution “go[es] beyond the victims’ pecuniary damages [in] violation of the restitution statute.” In support of this argument, Corbitt relies on State v. Twitchell, 832 P.2d 866 (Utah Ct.App.1992). We think Corbitt misreads the Twitchell holding.
¶11 In Twitchell, the defendant admitted taking premium payments from his victims on nonexistent insurance policies. See id. at 867. However, the defendant argued that the misappropriated premium payments “did not represent ... actual loss[es] to the victims” because “he paid any claims victims made on the nonexistent policies and victims who had no claims were no more damaged than if they had been fully insured.” Id. at 868. As such, the defendant argued the misappropriated premium payments could not be legally classified as “pecuniary damages” under the restitution statute. Id. We rejected this argument as “untenable” and held “[t]he [restitution] statute‘s definition of pecuniary damages includes the misappropriated policy payments ... even though the victims were fortunate enough to suffer no major losses during the time they were uninsured.” Id. at 869. Furthermore, “[the defendant] admitted in his plea agreement ... the very facts and elements necessary to prove liability in a civil proceeding for conversion.” Id. at 870. As such, the losses created by the defendant‘s misappropriations in Twitchell constituted “‘special damages ..., which [the victims] could recover against the defendant in a civil action arising out of the facts or events constituting the defendant‘s criminal activities.‘” Id. at 869 (quoting
¶12 Similarly, in this case Corbitt contends that because the Lopezes received an insurance payment on their claim for the stolen truck, the Lopezes sustained no “actual loss” and therefore had no “pecuniary damages” as a result of Corbitt‘s criminal activity. Corbitt‘s argument parallels the defendant‘s “untenable” argument in Twitchell, id. at 869, and we are equally unpersuaded. First, as in Twitchell, Corbitt admitted in his plea affidavit the elements necessary to prove a conversion claim. Second, notwithstanding any subsequent insurance payment on behalf of the Lopezes,3 the fact remains that by Corbitt‘s admitted illegal possession of the stolen truck, Corbitt inflicted on the Lopezes “special damages includ[ing] the money equivalent of property taken ... and [other] losses,” “which [the Lopezes] could recover against [Corbitt] in a civil action” for conversion.
II. Amount of Restitution
¶13 Second, Corbitt argues the trial court erred in determining the monetary sum required for complete restitution. See
¶14 The restitution statute provides: “When a defendant is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to victims of crime....”
¶15 Corbitt argues the trial court erred in using the “purchase price” of the truck instead of the insurance company‘s valuation to determine the monetary amount required for complete restitution of the Lopezes’ pecuniary damages. Stated another way, Corbitt contends he “is not responsible for the difference between the amount the Lopezes’ paid for the [truck] and its actual value [as determined by the insurance company].” The appropriate measure of the loss or damage to a victim is fact-sensitive and will vary based on the facts of a particular case. In some cases, a purchase price may be appropriate to a determination of loss, in other cases it may not be appropriate. We think it unwise to adopt a black-letter rule that either always requires or never permits the use of purchase price or insurance settlement amount as valuation methods under the restitution statute. Here, the date of purchase and the date the car was stolen are only about two weeks apart; hence the use of purchase price in this case seems highly appropriate.
¶16 Furthermore, Utah law supports the use of purchase price as a property valuation method under the restitution statute. In State v. McBride, 940 P.2d 539 (Utah Ct.App.1997), we faced a factual scenario somewhat similar to the one we face in this appeal.6 Like the Lopezes in this case, the car-buyer in McBride financed the purchase of a vehicle by making a down payment and then signing a note for the balance of the pur-
CONCLUSION
¶17 The trial court did not abuse its discretion or exceed its legal authority in determining the Lopezes suffered pecuniary damages resulting from Corbitt‘s admitted criminal conduct. Further, the trial court did not abuse its discretion or exceed its legal authority in ordering the amount of restitution in this case. Accordingly, we affirm the order of restitution.
¶18 I CONCUR: PAMELA T. GREENWOOD, Judge.
ORME, Judge (concurring):
¶19 I concur fully in the court‘s opinion. I write separately only to highlight the incorrect use of legal terminology in the statute. I do so in the hope the controlling language of the statute will be corrected. That failing, I hope to make a record of the incorrect usage so that the peculiar meaning of the terms “special damages” and “general damages” as used in the restitution statute will not muddy the meaning of those terms in other contexts.
¶20 Our restitution statute says that the “[p]ecuniary damages” that can be awarded are “all special damages, but not general damages.”
Special damages include items of loss that are more or less peculiar to the particular plaintiff and would not be expected to occur regularly to other plaintiffs in similar circumstances. General damages, on the other hand, are damages that courts believe “generally” flow from the kind of substantive wrong done by the defendant.
...
... The distinction between general damages on the one hand and special damages on the other hand is quite important
for practical reasons. Courts are quite willing to award general damages but quite reluctant to award special damages.
Dan B. Dobbs, Handbook on the Law of Remedies § 3.2, at 138-39 (West 1973). Dobbs goes on to explain that two particular limitations combine to restrict or preclude the availability of special damages. “The first is that special damages must be proved to a reasonable certainty.... The second ... is that no special damages are recoverable if they are deemed remote.” Id. § 3.2, at 139. In tort cases, remoteness is addressed as an aspect of proximate cause. See id. If special damages are disallowed in a tort case, the court will
say that the defendant‘s tort was not a proximate cause of the plaintiff‘s damages. In a contract case a very similar idea will be expressed by saying that the damages claimed by the plaintiff as a result of the defendant‘s breach were not within the contemplation of the parties when the contract was made, and therefore are not recoverable.
Id.
¶21 This concept is, quite literally, “hornbook law,” and Utah unquestionably adheres to these settled precepts—at least outside the context of criminal restitution. See Castillo v. Atlanta Cas. Co., 939 P.2d 1204, 1209 (Utah Ct.App.) (stating that plaintiffs in contract actions can recover “general damages, which flow naturally from the breach, and consequential damages,1 which, while not an invariable result of breach, were reasonably foreseeable by the parties at the time the contract was entered into“), cert. denied, 945 P.2d 1118 (Utah 1997); Cohn v. J.C. Penney Co., 537 P.2d 306, 307 (Utah 1975) (“General damages are those which naturally and necessarily result from the harm done. They are damages which everybody knows are likely to result from the harm described and so are said to be implied in law. Special damages are those which occur as a natural consequence of the harm done but are not so certain to flow therefrom as to be implied in law. One claiming them must plead them so as to let his adversary know what will be involved.“).2
¶22 Lawyers will recall the application of these principles in cases considered at length in the first year of law school. Thus, Mr. Baxendale was not liable to Mr. Hadley for the profits Hadley lost when his mill was shut down longer than necessary because Baxendale was remiss in delivering a part. See Hadley v. Baxendale, 156 Eng. Rep. 145, 151 (Exch.1854). It was held that
such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants.
Id. Similarly, a tortfeasor may be liable to the owner of a house if a fire he starts while negligently working therein or nearby destroys the house, but he may not be liable to the owner of a distant house to which the fire spreads. See generally Ryan v. New York Cen. R.R. Co., 35 N.Y. 210, 216-17 (1866). But see Milwaukee & Saint Paul Ry. Co. v. Kellogg, 94 U.S. 469, 474-75, 24 L.Ed. 256 (1876).
¶24 In the case of conversion, the tort most closely paralleling the crime in this case, the measure of general damages is “the value of the chattel at the time and place of conversion, usually with interest from that time.” Id. § 5.14, at 403 (footnote omitted). Accord Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994) (noting that “the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest“). Potential special damages for conversion include “damages for loss of use of the converted article,” Dobbs, Handbook on the Law of Remedies § 5.14, at 408, and “expenses of pursuing the converted property.” Id. § 5.14, at 410. See Lilenquist v. Utah State Nat‘l Bank, 99 Utah 163, 100 P.2d 185, 190 (1940) (noting that “special damages over and above the value of the converted property may properly be awarded where the circumstances are such as to warrant it“). Accordingly, in Henderson v. For-Shor Co., 757 P.2d 465 (Utah Ct.App.1988), we noted that
“[s]pecial damages may be recovered in an action for conversion for any injury proximately resulting from the conversion. Damages flowing from the conversion which are not ordinary, usual, or commonly to be expected, are recoverable if, under the circumstances, it can be fairly said that both parties have these consequences in contemplation at the time of the wrong complained of, as the probable result thereof, and if these unusual consequences are neither uncertain, unnatural, nor remote as to cause, nor speculative and conjectural in effect. Thus, compensation for time lost as a proximate result of the conversion, or for time and money spent in pursuit of the property converted, may be recovered. The owner may also recover special damages resulting from the withholding of the property.”
Id. at 469-70 (quoting 18 Am.Jur.2d Conversion § 117 (1985)).
¶25 What does all this mean in cases like the instant one? Under a plain reading of the restitution statute, which is the approach we are obligated to employ, see State v. Westerman, 945 P.2d 695, 696 (Utah Ct.App.1997), the result is a bizarre one: The victims of a criminal conversion of their automobile may not recover general damages, the value of their vehicle at the time and place of conversion, but they are entitled to their special damages. See
¶26 Uncharacteristically, Utah appellate courts have ignored the plain language of the statute and done what the Legislature probably really intended. Thus, we pay lip service to the fact that the statute equates pecuniary
¶27 The mistaken exclusion of all general damages from the definition of pecuniary damages as used in the restitution statute is no doubt attributable to the Legislature‘s desire to exclude pain and suffering, diminished reputation, and other less tangible elements of damage from the scope of restitution orders. As explained by Dobbs,
there is one special and entirely different use of the term “general damages[,“] that should be distinguished. In the case of certain dignitary invasions, such as libels, invasions of privacy, assaults, alienation of affections, and the like, the injury done is often not an economic one at all but substantial damages are allowed nevertheless. These are called general damages, to distinguish them from proof of actual economic harm and from punitive damages. In the dignitary cases, then, the term “general damages” does not refer to a measure at all; it merely refers to damages awarded for the affront to the plaintiff‘s dignity and the emotional harm done. In all other cases, the term “general damages” is a measure or yardstick, and it can be applied to the facts of the case to determine the actual amount of money that should be awarded.
Dobbs, Handbook on the Law of Remedies § 3.2, at 139 (emphasis in original; footnote omitted).
¶28 The practical approach employed by Utah appellate courts has been to limit, albeit sub silentio, the general damages exclusion in the restitution statute to what Dobbs characterizes as “dignitary invasions,” while at the same time effectively ignoring the statute‘s definition of pecuniary damages as dovetailing with special damages, and instead just focusing on demonstrable pecuniary loss, or what Dobbs refers to as “actual economic harm.” Id. I think this approach advances the Legislature‘s intent in the broad sense, but it is very much at odds with our oft-repeated objective to interpret statutes in accordance with the plain meaning of the words used. As such, I find the approach to be somewhat uncomfortable.3 Perhaps it will be less so if we are perfectly candid about what we are doing pending the Legislature‘s opportunity to adjust the statute.