State v. Diderickson and Bruun ( 2022 )

2022 UT 2IN THE
SUPREME COURT OF THE STATE OF UTAH
JAMES DIDERICKSON and ALLAN BRUUN,
Petitioners,
v.
STATE OF UTAH,
Respondent.
No. 20190478
Heard September 13, 2021
Filed January 27, 2022
On Certiorari to the Utah Court of Appeals
Attorneys:
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City,
for petitioner Diderickson
Clifton W. Thompson, Bountiful, for petitioner Bruun
Jeffrey S. Gray, Jacob S. Taylor, Sean D. Reyes, Salt Lake City,
for respondent
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PETERSEN, and JUDGE WILCOX joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; JUDGE JEFFREY C. WILCOX sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted James Diderickson and Allan Bruun of
twelve counts of theft in connection with a real estate deal they
entered into with Kerry and Bobbie Posey. As part of Diderickson’s
and Bruun’s sentences, a district court considered how much to order
for complete and court-ordered restitution.
¶2 Diderickson and Bruun argued to the district court that they
should not have to pay restitution because they had settled the
Poseys’ civil claims against them before they had been criminally
charged. As part of that settlement, the Poseys released all claims
DIDERICKSON v. STATE OF UTAH
Opinion of the Court
they possessed against Diderickson and Bruun. Diderickson and
Bruun also argued that the district court could not base a restitution
order on claims for which the Poseys had already been remunerated.
The district court disagreed with Diderickson’s and Brunn’s
contention that the Poseys had been compensated and ordered
restitution. The court of appeals affirmed, and the complete
restitution order transformed into a civil judgment against
Diderickson and Bruun.
¶3 Diderickson and Bruun then filed a satisfaction of judgment
in hopes of extinguishing that judgment. The district court rejected
their attempt, and the court of appeals again affirmed. Diderickson
and Bruun petitioned for certiorari arguing that the court of appeals
erred when it concluded that a victim’s pre-conviction release of
claims offsets a complete restitution order only to the extent it
“demonstrably compensates” the victim. Diderickson and Bruun also
assert that the court of appeals incorrectly concluded that they were
not entitled to any offset based on the value the settlement agreement
bestowed upon the Poseys. We affirm the court of appeals, but we
remand to allow the district court to correct a math error that the
State highlighted in its briefing.
BACKGROUND
¶4 The Poseys owned a twenty-nine-acre piece of undeveloped
land that they hoped to develop to fund their retirement. Allan
Bruun and James Diderickson (Petitioners) approached the Poseys
with a plan to take the Poseys’ undeveloped land and turn it into a
mix of commercial and residential properties.1 This inspired the
Poseys to sell the land to Equity Partners, LLC, a limited liability
company the Petitioners owned. In exchange, the Poseys received a
stake in a newly formed company, Tivoli Properties, LLC (Tivoli),
and a promise of monthly payments.
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1 We note that while this appeal was pending, James Diderickson
passed away. Diderickson’s counsel informed us that no personal
representative had been appointed for Diderickson’s estate and
requested that the appeal proceed. We received no objection from the
other parties to the appeal. Utah Rule of Appellate Procedure 38(a)
allows that if a deceased party has no representative, “proceedings
shall then be had as the court may direct.” In the absence of an
objection from the other parties, we took Diderickson’s counsel’s
suggestion.
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¶5 As part of the transaction, Petitioners took out a $750,000
high-interest loan to fund the development, using the property as
collateral. Petitioners used approximately $350,000 of the loan to pay
off the existing mortgage and taxes on the property and deposited
the remaining balance in Tivoli’s operating account.
¶6 Petitioners initially met their monthly obligations to the
Poseys, and the real estate venture seemed to move smoothly. Six
months after the deal was signed, however, Petitioners told the
Poseys that they could no longer afford the monthly payments. The
Poseys wondered where the $400,000 had gone and asked for an
accounting. Petitioners initially evaded the request.
¶7 The Poseys contacted the bank and discovered Tivoli’s
account balance had been reduced from about $400,000 to $1,083.
Bank records indicated that Petitioners had withdrawn money on
multiple occasions to cover expenses unrelated to the real estate
venture with the Poseys.
¶8 After the Poseys learned about Tivoli’s dire financial straits,
Petitioners asked the Poseys to sign a $100,000 extension of the loan
and indicated that without the extension the loan would foreclose.
The Poseys demurred and instead negotiated an end of their
relationship with the Petitioners. This culminated in a settlement
agreement.
¶9 As part of the settlement, Petitioners gave title to the
property back to the Poseys. Petitioners also paid the Poseys
$174,000. In return, the Poseys paid $25,000 to Equity Partners and
released the company, and Petitioners, of all claims related to the
transaction and the management of Tivoli.
¶10 Approximately two and a half years after the Poseys and
Petitioners entered into the settlement agreement, the State
criminally charged Petitioners for using Tivoli’s funds on projects
unrelated to the development of the Poseys’ property. A jury
convicted Petitioners on twelve counts of theft and one count of
engaging in a pattern of unlawful activity. Each count of theft related
to a separate check Petitioners had used on unrelated projects.
¶11 The district court ordered a hearing to determine the size of
complete and court-ordered restitution.2 Before the hearing,
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2 The district court entered the restitution order in 2014, pursuant
to the Crime Victims Restitution Act, Utah Code section 77-38a-101–
(continued . . .)
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
Petitioners submitted a brief in which they made their position on
restitution clear. According to Petitioners, the “Court’s task [was]
simple. The Poseys [were] limited . . . to a recovery of zero dollars
($0.00), as they entered into a Settlement Agreement with
[Petitioners].” Petitioners emphasized this argument at the
restitution hearing, explaining that because of the settlement
agreement, there were “two independent reasons” why the court
must find Petitioners owed no restitution.
¶12 Petitioners first argued that the court must conclude that
there was no need for court-ordered restitution because the
settlement agreement had already compensated the Poseys for any
harm their conduct had caused. Petitioners next contended that,
when fixing the amount of court-ordered restitution, a district court
has discretion to award only up to the amount of complete
restitution—an amount Petitioner asserted must equal zero.
¶13 More specifically, Petitioners explained that the settlement
agreement had already repaired the harm they had inflicted on the
Poseys because Petitioners had greatly increased the value of the
land by securing county approval for the proposed development.
Petitioners also valued the property that had been returned to the
Poseys based on the valuation of a small piece of the property that
Petitioners had sold. Petitioners argued that the increase in value
more than compensated the Poseys for the funds Petitioners had
misspent. Petitioners claimed that the court should therefore
conclude that the Poseys had been made whole and that complete
restitution equaled zero dollars.3
601. The act was repealed in July 2021 and replaced by the Crime
Victims Restitution Act, Utah Code section 77-38b-101–402. The
parties cited versions of the act that predate the 2021 repeal and
replace. No party argued that the revised act has any bearing on the
outcome of their dispute. This opinion applies and interprets the
version of the statute in effect when the restitution judgment was
entered.
3 Petitioners read the entire release section of the settlement
agreement into the record. The release states that
The Parties mutually release . . . all actions, claims,
demands, damages, obligations, liabilities controversies
and executions of any kind or nature whatsoever,
whether known or unknown, which have arisen, or
(continued . . .)
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¶14 The State countered that Petitioners’ valuation was
speculative and based upon insufficient data. The State instead
pressed that restitution should be based on the total amount the
Poseys were to be paid under the purchase agreement. The State
reasoned that the purchase agreement represented the price an actual
buyer had been willing to pay for the entire parcel. The State
additionally argued that the Poseys had expected to receive $3.5
million from the transaction and that they would have received it but
for the Petitioners’ malfeasance. Using the $3.5 million figure as a
baseline, the State discounted what the Poseys received in the
settlement and proposed $1,932,369 as the appropriate amount of
restitution.
¶15 The court noted that it was “somewhat persuaded” that the
settlement agreement had provided partial compensation to the
Poseys. The court reasoned that, at the very least, the Poseys
“thought they were getting a fair deal out of it at that point.”
Accordingly, the court did not award the $1,932,369 in restitution the
State sought.
¶16 But the court was also not persuaded by Petitioners’
arguments. The district court concluded that any increase in value of
the Poseys’ land flowing from Petitioners’ efforts to prepare it for
development was speculative and could not serve as persuasive
evidence of an offset of the harm Petitioners had caused by depleting
Tivoli’s bank account for unrelated expenses. Instead, the court
decided the best way to calculate the Poseys’ losses was to rely on the
which may arise for reason of money received,
management of funds, management actions, or
payments made as designated and described in the
Tivoli Properties, LLC, Operating Agreement and the
Real estate Purchase Agreement associated with the
property, as managers, buyers, sellers, consultants,
agents, employees, representatives, owners, members,
affiliates, contractors, associates, or any other affiliated
operative from the first day of the world, including this
day and each day thereafter, this release of claims
includes but is not limited to the payments to and
receipts by persons and entities identified on the
schedule of questioned payments attached hereto as
Exhibit B.
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
jury’s finding that the sum of the twelve checks represented the
amount of money Petitioners stole from the Poseys. And the court
chose to base restitution on those checks. The district court
accordingly ordered $189,574.33 in restitution.4
¶17 Petitioners appealed the restitution order. Before the court of
appeals, they argued that the settlement agreement barred the entry
of a restitution order. State v. Bruun (Bruun I), 2017 UT App 182, ¶ 82,
405 P.3d 905. They also contended that even if the settlement
agreement did not prohibit restitution entirely, the restitution order
would lead to a double recovery because the settlement agreement
had already compensated the Poseys. Id. ¶ 87.
¶18 The court of appeals disagreed and concluded that Utah
caselaw indicates that “a civil settlement and release of claims d[oes]
not bar the district court from imposing restitution as part of the
criminal sentence.” Id. ¶ 85. The court of appeals was likewise
unmoved by Petitioners’ double recovery argument. It held that in
“the case of restitution, a reviewing court will not disturb a district
court’s determination unless the court exceeds the authority
prescribed by law or abuses its discretion.” Id. ¶ 87 (quoting State v.
Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104). The court of appeals ruled it
could not fault the district court for basing its restitution calculation
on the stolen checks nor for rejecting Petitioners’ claim that their debt
was paid based on various property valuations, which the district
court deemed unreliable. “It is well within a district court’s broad
discretion in determining criminal restitution to reject a party’s
valuation contentions on the basis of evidentiary concerns.” Id. ¶ 95.
¶19 While their appeal in Bruun I was pending, Petitioners filed
a motion for satisfaction of judgment under Utah Rule of Civil
Procedure 58B(b).5 Petitioners claimed that because the settlement
agreement specifically mentioned the twelve improperly drawn
checks that the district court used to calculate complete
compensation, they were entitled to a satisfaction of judgment.
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4 The State notes that the district court miscalculated the sum of
the checks and set restitution at $189,574.33 when it should have
been $188,854.33. We remand to allow the district court to correct the
error.
5 Utah Rule of Civil Procedure 58B(b) provides that the “court in
which the judgment was first entered may, upon motion and
satisfactory proof, enter an order declaring the judgment satisfied.”
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Petitioners argued that one “consequence of the settlement and
release . . . is that all obligations [Petitioners owed] to the Poseys with
regard to the amounts of the checks have been fulfilled.”
¶20 The State responded that Petitioners
are making the exact same argument that they
presented at the restitution hearing—that the
settlement agreement precludes restitution. The District
Court rejected this argument when it set restitution in
the complete and court-ordered amount of $189,574.33
. . . . They cannot now come back to the District Court
to repeat arguments that they previously made.
The district court “d[id] not find sufficient reason to negate its
previous rulings and order regarding restitution” and denied
Petitioners’ motion.
¶21 Petitioners appealed the district court’s denial of the motion.
Before the court of appeals, Petitioners argued that “after a complete
restitution judgment is entered, they are entitled to credit thereon for
compensation provided in a civil settlement that covers the same
items included in the restitution judgment.” The court of appeals
pointed Petitioners back to its holding in Bruun I and indicated that it
had already answered the question of whether the settlement
agreement compensated the Poseys. The court explained:
In light of our prior determination that the Settlement
Agreement and restitution judgment did not doubly
compensate [the Poseys], [Petitioners] are not entitled
to offset the judgment by any amount and are jointly
and severally obligated to pay [the Poseys] the full
restitution judgment in the amount of $ 189,574.33.
State v. Bruun (Bruun II), 2019 UT App 77, ¶ 23, 443 P.3d 756.
ISSUES AND STANDARD OF REVIEW
¶22 We granted certiorari on two issues. Petitioners first ask us
to review the court of appeals’ affirmance of the district court
decision not to grant Petitioners’ motion for satisfaction of judgment.
Whether a prior settlement agreement can satisfy an order of
complete restitution after the restitution order is entered as a
judgment on the civil docket presents a question of law, which we
review for correctness. See Pilot v. Hill, 2019 UT 10, ¶ 9, 437 P.3d 362(noting we review “a pure question of law[] for correctness”).
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
¶23 The second issue questions whether the restitution amount
should have been reduced based on the settlement agreement. The
court of appeals concluded it did not. “On certiorari, we review the
court of appeals’ decision for correctness, focusing on whether that
court correctly reviewed the trial court’s decision under the
appropriate standard of review.” Cheek v. Iron Cnty. Att’y, 2019 UT
50, ¶ 9, 448 P.3d 1236 (citation omitted). In other words, “[i]n
reviewing the court of appeals’ decision[,] we apply the same
standard of review that it would apply in reviewing the decision of
the district court.” Est. of Faucheaux v. City of Provo, 2019 UT 41, ¶ 9,
449 P.3d 112.
ANALYSIS
I. THE COURT OF APPEALS CORRECTLY CONCLUDED
THAT PETITIONERS’ PRE-RESTITUTION ORDER
SETTLEMENT AGREEMENT DOES NOT ENTITLE
THEM TO A SATISFACTION OF JUDGMENT
¶24 The district court denied Petitioners’ motion for a
satisfaction of judgment, holding that there was not “sufficient
reason to negate its previous rulings and order regarding
restitution.” Petitioners appealed the denial and argued that the
settlement agreement included compensation for the checks the
district court relied on to craft the restitution order. The court of
appeals held that the restitution order did not result in double
recovery and “prior settlement agreements that do not result in a
double recovery by the victim cannot preclude enforcement of
restitution judgments.” State v. Bruun (Bruun II), 2019 UT App 77,
¶¶ 14, 23, 443 P.3d 756. The appellate court concluded that for a
judgment to be satisfied by a prior settlement agreement, the
defendant would need to show that the settlement “demonstrably
compensated” victims for their losses. Id. ¶ 22. Petitioners argue that
the court of appeals erred when it ruled that settlement agreements
must “demonstrably compensate” victims because rule 58B of the
Utah Rules of Civil Procedure allows for judgments, including those
made under the Crime Victims Restitution Act, to be satisfied once
defendants have shown “satisfactory proof.”6
_____________________________________________________________
6 Petitioners also argue that the court of appeals erred when it
held that rule 58B can only be applied to a settlement agreement
made after a judgment has been entered. See State v. Bruun (Bruun II),
2019 UT App 77, ¶ 16, 443 P.3d 756. And Petitioners dedicate a fair
(continued . . .)
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¶25 Although not entirely clear, there appear to be two separate
contentions bound up in Petitioners’ argument. First, Petitioners
suggest that the court of appeals applied a higher standard than the
one rule 58B(b) requires. Second, Petitioners posit that, under the
correctly articulated standard, they satisfied the judgment.
¶26 A restitution order made under the Crime Victims
Restitution Act is “a legal judgment, enforceable under the Utah
Rules of Civil Procedure,” and has “the same affect [sic] and is
subject to the same rules as a judgment in a civil action.” UTAH CODE
§ 77-38a-401(2), (4) (2014), repealed by UTAH CODE § 77-38b-301. Under
the Rules, a judgment debtor can be released from her debt through a
satisfaction of judgment. A satisfaction of judgment is a legal
determination indicating that “the controversy [has] become[] moot
and the right of appeal is barred.” Hollingsworth v. Farmers Ins. Co.,
655 P.2d 637, 639 (Utah 1982) (citations omitted). Utah Rule of Civil
Procedure 58B(b) permits a satisfaction of a judgment to be entered
in two ways—either by acknowledgment of the judgment creditor or
by court order.
bit of ink to convincing us that the Utah Rules of Civil Procedure
allow a pre-restitution order settlement agreement to satisfy a
judgment based on a restitution order. Petitioners’ argument
oversimplifies the court of appeals’ holding. We do not read the
court of appeals’ opinion as establishing such a bright-line rule.
The court of appeals noted that because of the unique way the
Crime Victims Restitution Act straddles the criminal and civil
worlds, it is hard to find an appropriate analogue in the civil context
to guide what to do when a criminal defendant has, prior to his
sentencing, entered into a settlement agreement with his victim. The
court of appeals concluded that a settlement agreement, even one
entered into prior to sentencing, could be used to offset a defendant’s
restitution if it “demonstrably compensated” the victim. We largely
agree with this analysis (see infra ¶29), even if we agree with
Petitioners that the court of appeals should be careful not to vary the
words of the rule (see infra ¶28) and even if we have a slightly
different take than the court of appeals on how this will likely play
out in practice (see infra ¶42 n.9). We therefore reject Petitioners’
contention that the Utah Rules of Civil Procedure demand a different
outcome.
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
¶27 For satisfaction by acknowledgment, “the judgment creditor
or the judgment creditor’s attorney must file an acknowledgment of
satisfaction in the court in which the judgment was entered” within
twenty-eight days after full satisfaction of the judgment. UTAH R. CIV.
P. 58B(a)(1). Otherwise, a satisfaction of judgment must be entered
by court order. According to the Rules, “[t]he court in which the
judgment was first entered may, upon motion and satisfactory proof,
enter an order declaring the judgment satisfied.” Id. 58B(b).
¶28 Petitioners’ primary argument is that the court of appeals
improperly applied a standard other than the “satisfactory proof”
standard rule 58B(b) provides. And, indeed, the court of appeals did
talk about a satisfaction of judgment being proper when a party had
been “demonstrably compensated.” Petitioners have a point when
they note that “demonstrably compensated” could be read to suggest
something other than “satisfactory proof.” We “have acknowledged
that variations in language might cause a court to stray from the
appropriate test.” State v. Gallegos, 2020 UT 19, ¶ 59, 463 P.3d 641. We
encourage all courts, including our own, to be careful when
reframing tests so that we do not subtly shift the inquiry from the
language a statute or rule requires.
¶29 However, we do not see anything in the court of appeals’
articulation of a creditor’s burden under rule 58B(b) that caused it to
lose sight of what the rule instructs. Petitioners certainly have not
given us any reason to believe that the switch in verbiage caused the
court of appeals to impose a higher burden than the rule requires.
But we emphasize that the rule says what it says and that a
satisfaction of judgment is proper when a party forwards
“satisfactory proof” that the judgment has been paid.
¶30 Petitioners next argue that the court of appeals erred
because, no matter how the standard is articulated, they have
compensated the Poseys for the harm they suffered and are therefore
entitled to a satisfaction of judgment. Petitioners aver that there is
“no uncertainty” as to whether they have satisfied the restitution
order because the “civil settlement include[d] the same 12 checks
upon which the restitution judgment [was] based.”
¶31 The problem with Petitioners’ position is that they did not
provide satisfactory proof to the district court that the settlement
agreement satisfied the restitution order. Petitioners’ proof that the
restitution order had been satisfied was based on the same argument
they have made at every possible opportunity: the settlement
agreement referenced the misused checks, so the amounts paid
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pursuant to the settlement agreement already compensated the
Poseys for those checks. They raised this argument at the original
restitution hearing, they raised it before the court of appeals when
they appealed the restitution order, they raised it at the rule 58
hearing, they raised it before the court of appeals on the appeal of the
denial of their motion for a satisfaction of judgment, and now they
raise it before us. Unlike wine, some cheese, and most Arrested
Development episodes, Petitioners’ argument does not get better with
age. The district court and court of appeals have rejected this
argument every time Petitioners have advanced it.
¶32 We don’t begrudge Petitioners their jeremiad. They
obviously feel strongly that they entered into a settlement agreement
with the Poseys that resolved any obligation they had to the Poseys.
But the district court heard and rejected Petitioners’ plea that the
settlement agreement compensated the Poseys for their losses when
it set the restitution amount. The court of appeals affirmed that
determination. In light of that history, it was not error for the district
court, when deciding whether the judgment had been satisfied, to
stand by its previous conclusion that the settlement agreement did
not fully compensate the Poseys. And if the settlement agreement did
not fully compensate the Poseys for the losses the court determined
they had suffered, Petitioners lacked satisfactory proof that the
judgment based upon the restitution order had been satisfied. It was
not error for the court of appeals to recognize this and affirm the
district court’s decision.
¶33 Put another way, Petitioners argued to the district court that
restitution should be set at zero dollars because the increased value
of the property they returned to the Poseys more than made up for
the money that Petitioners had siphoned away from the project. The
district court rejected that argument and set restitution at
$189,574.33. The district court did that because it concluded that the
consideration Petitioners gave pursuant to the settlement agreement
did not fully compensate the Poseys.
¶34 Petitioners argued to the court of appeals that the district
court erred when it failed to account for the settlement agreement.
But the court of appeals was unmoved and affirmed the restitution
order. The settlement agreement’s impact on the amount of
restitution was baked into the restitution order, and it was not error
for the court of appeals to affirm that the district court’s recognition
of the settlement agreement was not satisfactory proof that the
judgment had been satisfied.
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
¶35 Accordingly, we affirm the court of appeals’ holding that the
pre-restitution order settlement agreement did not entitle Petitioners
to a satisfaction of the judgment.
II. THE COURT OF APPEALS DID NOT ERR BY REFUSING
TO OFFSET THE RESTITUTION ORDER BASED
ON THE SETTLEMENT AGREEMENT
¶36 Petitioners also assert that the court of appeals erred when it
declined to offset the judgment based on the consideration given as
part of the settlement agreement. The court of appeals reasoned that
“the district court did not abuse its discretion in determining that
evidence of the Property’s value was too speculative and unreliable
to form the basis for restitution.” State v. Bruun (Bruun II), 2019 UT
App 77, ¶ 23, 443 P.3d 756. Accordingly, Petitioners were “not
entitled to offset the judgment by any amount.” Id.¶37 This argument is just a variation on the theme of Petitioners’
first argument. Petitioners want credit for the value they argue they
conferred on the Poseys through the settlement agreement. As we
have just discussed, the district court considered the settlement
agreement’s impact on the amount of restitution and took it into
account when crafting the restitution order. The court of appeals
affirmed that calculation in State v. Brunn (Bruun I), 2017 UT App
182, ¶ 99, 405 P.3d 905.
¶38 Petitioners argue for a rule that would permit a victim to
release claims against a criminal defendant in a fashion that would
bind a district court to respect the release when it comes to
restitution. They argue such a rule would align with the Utah Rules
of Civil Procedure and the way settlement agreements are handled in
civil practice. But, as the court of appeals noted, the Rules “do not
contemplate the situation presented by this case.” Bruun II, 2019 UT
App 77, ¶ 16. We agree with the court of appeals that the Rules are
not much help in telling a court how to assess the effect of a pre-
restitution order settlement agreement on the satisfaction of that
restitution order. And there is nothing in the Crime Victims
Restitution Act that speaks to the impact a settlement agreement has
on court-ordered restitution either.
¶39 Many states interpret their restitution statutes to give district
courts the latitude to decide the extent to which a settlement
agreement compensates a victim. In North Carolina, for example, a
district court may “credit [a defendant] for what she has already paid
under [a] civil settlement agreement” before entering a restitution
order. State v. Williams, 829 S.E.2d 518, 524 (N.C. Ct. App. 2019),
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review denied, 833 S.E.2d 802 (N.C. 2019). The Indiana Supreme Court
has held that “a trial court remains free to ‘consider a civil settlement
when deciding whether to impose a restitution order or the amount
of restitution to order.’” Haltom v. State, 832 N.E.2d 969, 971 (Ind.
2005) (quoting Crawford v. State, 770 N.E.2d 775, 781 (Ind. 2002)).
“This level of discretion,” the court explained, “permits the trial court
to order a greater amount in restitution to compensate a victim fully
for damages and injuries not yet covered, or order less or no
restitution at all to prevent the victim from receiving a windfall.”7 Id.at 971–72.
¶40 As we noted before, the Crime Victims Restitution Act does
not contain the Legislature’s express guidance as to what courts
should do with pre-restitution order settlement agreements. In the
absence of that guidance, the best solution is to fill that gap with the
discretion the Act generally gives district courts to craft restitution
orders that compensate victims. UTAH CODE § 77-38a-302(5) (2014),
repealed by UTAH CODE § 77-38b-205. A settlement agreement that
purports to resolve civil claims based upon criminal conduct can take
several forms. It is not difficult to imagine that some can flow
naturally from the same criminal scheme that caused the harm and
not compensate the victim for her loss. Others might represent fair
and just compensation for the harm committed.
¶41 In this matter, Petitioners were parties to a restitution
hearing where they were given the opportunity to convince the
district court that their settlement agreement compensated the
Poseys. The district court considered those arguments and rejected
them. The court of appeals affirmed that decision. We see nothing in
the Crime Victims Restitution Act that dictates a contrary procedure
or outcome.
¶42 And, as above, where the district court acted within the
bounds of its discretion when it decided that the settlement
agreement did not fully compensate the Poseys, the district court did
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7 We acknowledge that at least one court appears to have drawn
the hard line that Petitioners want. The Minnesota Court of Appeals
has concluded “that when an alleged victim has made a complete,
valid civil settlement of all claims resulting from a criminal offense,
the state is precluded from seeking restitution.” State v. Arends, 786
N.W.2d 885, 889 (Minn. Ct. App. 2010).
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
not err when it concluded that the exact same settlement agreement
did not entitle Petitioners to an offset.8
¶43 Petitioners resist this result and argue for a rule that would
require courts to offset amounts paid under a settlement agreement
to a victim. Although Petitioners do not come right out and say it
directly, underlying their argument is the contention that private
parties should be allowed to enter into settlement agreements that
bind courts in criminal cases. Petitioners point to several policy
reasons that weigh in favor of such a rule. They suggest that allowing
a victim to negotiate a settlement agreement allows her to “replace
an uncertain, future recovery with a certain, immediate recovery,”
“an additional source of leverage to negotiate a favorable
settlement,” the ability to avoid “potentially lengthy garnishment
actions or other execution proceedings,” “a sense of dignity and
respect by making [the victim] the party in interest[,] and . . . a say in
how and when any judgment in [her] favor may be collected.”
¶44 Although we appreciate the difficulties the Act creates for
defendants, allowing parties to enter settlement agreements that bind
courts in criminal cases runs contrary to the policies that animate the
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8 The way we have envisioned the Act’s operation necessitates a
comment on something the court of appeals stated. The court of
appeals held “that prior settlement agreements do not satisfy
complete restitution judgments, except to the extent that the
settlements and judgments would demonstrably result in double
recovery.” State v. Bruun (Bruun II), 2019 UT App 77, ¶ 24, 443 P.3d
756. While we concur with the lower court’s holding, we cannot
imagine a situation where a prior settlement agreement would lead
to double recovery unless the district court abused its discretionary
power given under the Crime Victims Restitution Act. District courts
are instructed to consider “all relevant facts” when making
restitution determinations. See UTAH CODE § 77-38a-302(5)(b) (2014),
repealed by UTAH CODE § 77-38b-205. Thus, a district court acting
within the confines of the statute would ensure it had considered all
relevant facts and would not enter an order for restitution of a harm
for which a victim had already been made whole. In this case, the
district court analyzed whether the settlement agreement should be
factored into the restitution order and deemed that the value of the
land the Poseys received in the agreement was too speculative to
serve as evidence that the harm had been made whole.
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Crime Victims Restitution Act. As we have explained, the Act was
enacted to serve two well-recognized purposes. See State v. Laycock,
2009 UT 53, ¶ 18, 214 P.3d 104. The first is “to compensate the victim
for pecuniary damages.” Id. And the second “is to rehabilitate and
deter the defendant, and others, from future illegal behavior.” Id. We
agree with the court of appeals’ conclusion that “neither purpose is
served by permitting a prior settlement agreement that does not fully
compensate a victim for the pecuniary damages caused by a
defendant to satisfy a subsequent judgment for complete
restitution.”9 Bruun II, 2019 UT App 77, ¶ 18.
¶45 Petitioners further argue that the court of appeals erred
when it concluded that res judicata precluded the district court from
considering the effect of the settlement agreement. Although the
lower court’s decision contains a footnote indicating the double
recovery issue was barred by principles of res judicata, neither the
court of appeals nor the district court analyzed the elements of claim
or issue preclusion. See id. ¶ 18 n.9. Nor did they ultimately base their
conclusions on res judicata.
¶46 Although the parties have briefed this as a res judicata
question, we do not have a res judicata ruling to review. Moreover,
regardless of whether res judicata prevented Petitioners from
renewing their argument about the settlement agreement’s impact on
the restitution order, for the reasons discussed above, those
arguments failed. This causes us to pass on considering the issue
further.
III. PETITIONERS INADEQUATELY BRIEFED
ANY QUESTION CONCERNING THE IMPACT OF A RELEASE
OF CLAIMS ON A VICTIM’S ABILITY TO ENFORCE A
JUDGMENT BASED UPON A RESTITUTION ORDER
¶47 Petitioners hint at, but fail to develop, an additional
argument. At a couple of points in their briefing, Petitioners suggest
that the Poseys cannot enforce the judgment because they are
contractually bound not to. That is, Petitioners aver that the release of
claims that the Poseys gave as part of the settlement agreement
_____________________________________________________________
9 Nor are we the only court to so conclude. Other courts have
recognized that “private individuals should not be allowed to thwart
the penal goals of the criminal justice system by entering into
releases or settlements with wrongdoers.” Haltom, 832 N.E.2d at 972
(citing United States. v. Bearden, 274 F.3d 1031, 1041 (6th Cir. 2001)).
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
prevents them from taking steps to enforce the judgment. Petitioners
similarly argue that the State cannot enforce the judgment because,
although the State can regularly enforce a judgment, it can only
enforce judgments “on behalf of” the victim. Petitioners argue that
the court of appeals erred because it failed to heed the “warning” this
court issued in State v. Laycock, 2009 UT 53, 214 P.3d 104. Petitioners
assert that Laycock held that “the rationale for permitting entry of a
restitution judgment despite a civil settlement does not extend to
execution of the entered judgment.” Petitioners misunderstand
Laycock.
¶48 In Laycock, we considered the question of whether a district
court needed to determine both complete and court-ordered
restitution if the parties had reached a civil settlement agreement. Id.
¶ 11.
¶49 By way of background, before the 2021 amendments, the
Crime Victims Restitution Act required a judge to determine both
“complete restitution” and “court-ordered restitution.” UTAH CODE
§ 77-38a-302(2) (2014), repealed by UTAH CODE § 77-38b-205. To make
its complete restitution determination, a court needed to assess the
total amount required to compensate a victim for the harm the
defendant caused. Id. The statute required the district court to
account for a myriad of factors that could lower a defendant’s overall
monetary responsibility to victims. Id. § 77-38a-302(5)(b). After
considering all relevant factors, the court then needed to enter the
“court-ordered restitution” amount. Id. § 77-38a-302(5)(c)
¶50 In Laycock, the district court judge had declined to determine
complete restitution because she believed several issues would be
better handled in a civil trial with the rules of civil procedure
providing superior fact-finding capabilities. Laycock, 2009 UT 53,
¶ 22. The State appealed, contending that the statute required a
district court to determine complete restitution. Id. ¶ 20. The criminal
defendant in the restitution case, as the real party in interest, filed a
suggestion of mootness. Id. ¶ 6. He claimed that the civil settlement
ought to “bar a district court from imposing restitution in a criminal
action involving the same incident.” Id. ¶ 12.
¶51 Addressing the defendant’s mootness arguments, we
rejected the notion that a civil settlement fulfilled the statutory
purposes of restitution and explained that “restitution is mandated
by statute and is a part of a criminal sanction imposed by the state.”
Id. ¶¶ 17–18. “[U]nlike an award of civil damages, . . . an award of
restitution has a two-fold purpose.” Id. “One purpose is to
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compensate the victim for pecuniary damages . . . [and] [t]he other
purpose . . . is to rehabilitate and deter the defendant, and others,
from future illegal behavior.” Id. We concluded that the statute
required the district court to set both complete and court-ordered
restitution even if the parties had settled their claim. Id. ¶ 24.
¶52 But we could not help ourselves from making an additional
observation about the Crime Victims Restitution Act. We noted there,
as we do here, infra ¶ 38, that the statute does not tell a court what to
do with a settlement agreement. And we pontificated that “a serious
question will arise over whether [a victim] may execute on her
judgment when she has released [a defendant] from all of her claims
against him.” Laycock, 2009 UT 53, ¶ 33. Although Laycock did not
require us to answer the question, we acknowledged that “the
rationale we used” to explain why a settlement agreement did not
make a restitution order moot “may lose much of its persuasive force
after a civil judgment is entered.” Id. ¶ 33.
¶53 Petitioners read our observation about an interesting
question as a “warning” that the district court ignored. We do not
fault Petitioners for raising the issue. We agree with what we said in
Laycock, a serious question exists about whether a victim can enforce
a judgment based on a restitution order if she has entered into a
settlement agreement that releases her claims against the
defendant/judgment debtor. Petitioners’ problem is that they do not
give us anything to help answer that question. As we stated in Kidd, a
“party may not simply point toward a pile of sand and expect the
court to build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435
P.3d 248.
¶54 Moreover, contrary to Petitioners’ assertion, the court of
appeals did not ignore the question we raised in Laycock. The court of
appeals explained it away as dictum. State v. Bruun (Bruun II), 2019
UT App 77, ¶¶ 13–14, 443 P.3d 756. It also noted that we had “merely
speculated on the legal issue and expressly reserved it for future
resolution.” Id. ¶ 14. This presented Petitioners with a golden
opportunity to argue that our observation was not dictum and that
we should answer the question. But Petitioners let that opportunity
pass them by. In the absence of briefing and argument, we decline to
take up the question and invite the legislature to consider addressing
the issue in the statute.
CONCLUSION
¶55 We affirm the court of appeals’ holding that the settlement
agreement Petitioners entered into with the Poseys does not entitle
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DIDERICKSON v. STATE OF UTAH
Opinion of the Court
them to a satisfaction of a judgment. The district court considered the
settlement agreement’s impact on the amount of restitution when it
entered the restitution order, and it was not error for the district
court to conclude Petitioners could not use that same rejected
settlement agreement argument to satisfy a judgment based on that
restitution order. We remand, however, to permit the district court to
correct the clerical error, which listed check 1015 as $4,800 instead of
$4,080.
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