Dickman Family Properties, Inc. v. White , 734 Utah Adv. Rep. 8 ( 2013 )

2013 UT App 116_________________________________________________________
THE UTAH COURT OF APPEALS
DICKMAN FAMILY PROPERTIES, INC.,
Plaintiff,
v.
DONALD J. WHITE AND SHEILA WHITE,
Defendants and Appellants.
MARK WRIGHT,
Witness and Appellee.
Amended Memorandum Decision1
No. 20110126‐CA
Filed May 9, 2013
Fourth District, Heber Department
The Honorable Derek P. Pullan
No. 070500276
Steven W. Call and Elaine A. Monson, Attorneys
for Appellants
L. Benson Mabey, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Amended Memorandum
Decision, in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Defendants Donald J. White and Sheila White appeal the
district court’s decision that a third‐party witness, Mark Wright,
1. This Amended Memorandum Decision supersedes the
Memorandum Decision originally issued in this case on October 25,
2012, see Dickman Family Props., Inc. v. White, 2012 UT App 299. The
original decision is unchanged, but following the original decision
(continued...)
Dickman Family Properties v. White
should not be held in contempt. In particular, the Whites challenge
the court’s determination that the contempt proceeding was
criminal in nature and, thus, required application of the beyond a
reasonable doubt standard of proof. According to the Whites, the
court should have treated the matter as a civil contempt proceeding
and applied a clear and convincing evidence standard of proof.
Because the Whites failed to preserve this issue in the district court,
we affirm.
¶2 Among other things, “unlawful interference with the
process or proceedings of a court” is a “contempt[] of the authority
of the court.” Utah Code Ann. § 78B‐6‐301(9) (2008). If a person is
found to be in contempt, the court may impose various sanctions,
including a fine, incarceration, or a compensatory monetary award
to a party aggrieved by another’s contempt. See id. §§ 78B‐6‐310, ‐
311. A contempt proceeding may be civil or criminal in nature.
“‘The primary determinant of whether a particular contempt order
is to be labeled civil or criminal is the trial court’s purpose in
entering the order.’” Shipman v. Evans, 2004 UT 44, ¶ 40, 100 P.3d
1151 (quoting Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988),
superseded on other grounds as stated in State v. Hurst, 821 P.2d 467(Utah Ct. App. 1991)). “[I]t is the purpose, not the method of the
punishment, that serves to distinguish the two types of [contempt]
proceedings.” Von Hake, 759 P.2d at 1168. “‘A contempt order is
criminal if its purpose is to vindicate the court’s authority, as by
punishing an individual for disobeying an order, even if the order
arises from civil proceedings.’” Shipman, 2004 UT 44, ¶ 40 (quoting
1. (continued...)
we address arguments raised by the appellant on a petition for
rehearing, see infra ¶¶ 15–20. See generally Utah R. App. P. 35(c) (“If
a petition for rehearing is granted, the court may make a final
disposition of the cause without reargument, or may restore it to
the calendar for reargument or resubmission, or may make such
other orders as are deemed appropriate under the circumstances of
the particular case.”).
20110126‐CA 2 2013 UT App 116Dickman Family Properties v. White
Von Hake, 759 P.2d at 1168). “A contempt order is civil if it has a
remedial purpose, either to coerce an individual to comply with a
court order given for the benefit of another party or to compensate
an aggrieved party for injuries resulting from the failure to comply
with an order.” Von Hake, 759 P.2d at 1168. The characterization of
a contempt proceeding determines the applicable standard of
proof: criminal contempt must be proven beyond a reasonable
doubt; civil contempt must be proven by clear and convincing
evidence. See id. at 1172‐73.
¶3 “The decision to hold a party in contempt of court rests
within the sound discretion of the trial court and will not be
disturbed on appeal unless the trial court’s action is so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3,
¶ 11, 176 P.3d 464 (internal quotation marks omitted); Shipman,
2004 UT 44, ¶ 39 (explaining that the district court’s exercise of its
contempt power is reviewed for an abuse of discretion). That
discretion “includes not just the power to decide whether a party
should be held in contempt, but the power to determine whether
[the purpose of] a particular contempt order is civil or criminal.”
Shipman, 2004 UT 44, ¶ 40 (citing Von Hake, 759 P.2d at 1168). “Only
rarely will we reverse the [district] court’s decision in this matter”
and only in circumstances where the court’s decision “is so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of . . . discretion.” Id. ¶ 39 (omission in original)
(internal quotation marks omitted).
¶4 During the course of the underlying litigation, the Whites
moved for summary judgment against the plaintiff, Dickman
Family Properties, Inc. In opposing the Whites’ summary judgment
motion, the plaintiff submitted a declaration (the Declaration) from
the witness. The district court denied the Whites’ motion for
summary judgment.
¶5 Subsequently, during discovery, the Whites deposed the
witness, and his deposition testimony called into question the
20110126‐CA 3 2013 UT App 116Dickman Family Properties v. White
accuracy of many of the statements he made in the Declaration. As
a result, the Whites moved for an order to show cause, asserting
that the witness should be held in contempt for making a false
declaration in a court proceeding. See generally Utah Code Ann.
§ 78B‐6‐301(9) (“[U]nlawful interference with the process or
proceedings of a court” is an “act[] . . . in respect to a court or its
proceedings [that is a] contempt[] of the authority of the court.”).
In moving for an order to show cause, the Whites emphasized the
criminal nature of the witness’s conduct, asserting in particular that
in making a false declaration, the witness committed an act of
perjury. In addition, the Whites requested an award of attorney
fees for the efforts they had made in responding to the Declaration
and in bringing the contempt proceeding. See id. § 78B‐6‐311
(permitting an award of “costs and expenses” to a party affected by
another’s contempt). In response to the Whites’ motion, the district
court issued an order to show cause and scheduled a hearing.
¶6 At the conclusion of the hearing, the court ruled from the
bench, reasoning that the contempt proceeding before it was for the
purpose of protecting “the authority and integrity of court
processes” and was therefore criminal in nature. The court thus
determined that “to prevail, [the Whites] must prove beyond a
reasonable doubt that [the witness] willfully and intentionally
testified falsely in his Declaration.” Applying that burden of proof,
the court concluded that “[o]n the evidence presented, [it] c[ould
]not find beyond a reasonable doubt that [the witness] willfully
and intentionally testified falsely in [the] . . . Declaration.” The
court then made factual findings in support of its conclusion:
The Declaration arose out of communication between
[the witness] and counsel for Plaintiff[s]. [The
witness] e‐mailed counsel regarding his memories
that he deemed to be relevant. Counsel prepared a
written declaration, which was forwarded to [the
witness, who] testified that he reviewed the
Declaration . . . and believed [it] to be consistent with
his memory to the best of his knowledge.
20110126‐CA 4 2013 UT App 116Dickman Family Properties v. White
The Declaration was prepared early in the case, the
reliability of [the witness’]s memory has now been
tested at deposition. That process has disclosed
significant inconsistencies between the Declaration
and the [d]eposition, and [the witness] now concedes
that the [d]eposition is the better record of his
memory.
The events described span decades. [The nature of
the case] . . . require[d the witness] to parse through
the deep recesses of memory. [The witness] is
attempting to recall memories of his boyhood, from
even before he turned ten years of age. That
inaccuracies are identified after cross‐examination is
not surprising. Having said that, clearly, in this case
more care should have been taken by both counsel
and [the witness] in the preparation and ultimate
execution of the Declaration. The Declaration
submitted to the [c]ourt is the same as the witness
taking the oath and testifying in open court, and all
legal counsel have a duty to insure that false
testimony is not knowingly offered.
The district court accordingly ordered that the contempt
proceeding be dismissed.2
2
In conjunction with the order to show cause, the district
court also considered the Whites’ motion to strike the Declara‐
tion. Concluding that the witness’s deposition was a more accu‐
rate record of his memory, the district court granted the motion
to strike. In light of the inaccuracies within the Declaration that
had been stricken, the Whites renewed their motion for sum‐
mary judgment, which the district court denied, concluding that,
despite the inaccuracies, there were material issues of fact still in
dispute.
20110126‐CA 5 2013 UT App 116Dickman Family Properties v. White
¶7 At the court’s request, the witness submitted a proposed
order for dismissal of the contempt proceeding, to which the
Whites filed a written objection. In that objection, among other
things not at issue here, the Whites complained that the proposed
order did not contain a more detailed explanation of the analysis
that the court “undertook to determine whether the contempt
proceeding[] . . . w[as] civil or criminal in nature.” The Whites then
specified a few particular statements that they requested be
included in the order. The court denied the objection.
¶8 The Whites appeal the district court’s ruling, arguing that
the court inappropriately categorized the contempt proceeding as
criminal rather than civil in nature. In support of this position, the
Whites assert a relatively novel legal argument that they, rather
than the district court, have the right to determine the purpose of
a contempt proceeding that they initiated, contending that as “an
aggrieved party[, they have] a civil remedy against a wrongdoer in
a contempt proceeding.” (Citing Utah Code Ann. § 78B‐6‐311
(2008); Clover Leaf Dairy Co. v. Van Gerven, 73 Utah 471, 275 P. 9, 10
(1929).) In other words, according to the Whites, because they
sought attorney fees the contempt proceeding was for a
compensatory purpose, making it civil in nature, and the district
court therefore was required to treat the proceeding as civil rather
than criminal and apply the clear and convincing evidence
standard of proof rather than the higher beyond a reasonable doubt
standard. According to the Whites, if the clear and convincing
evidence standard had been applied, the district court would have
had sufficient evidence to find the witness in contempt for filing a
false declaration.3
3
In arguing that the district court should have applied the
clear and convincing evidence standard of proof, the Whites
invite this court to apply that standard to the facts and to reach
its own conclusion that the witness acted in contempt of court by
filing a false declaration. However, were this court to conclude
(continued...)
20110126‐CA 6 2013 UT App 116Dickman Family Properties v. White
¶9 We do not reach the legal issue the Whites have presented
to us, however, because they have not preserved it for appeal. “[I]n
order to preserve an issue for appeal[,] the issue must be presented
to the trial court in such a way that the trial court has an
opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (internal
quotation marks omitted). “This requirement puts the trial judge
on notice of the asserted error and allows for correction at that time
in the course of the proceeding.” Id. “For a trial court to be afforded
an opportunity to correct the error (1) the issue must be raised in
a timely fashion[,] (2) the issue must be specifically raised[,] and (3)
the challenging party must introduce supporting evidence or
3
(...continued)
that the district court should have applied the clear and convinc‐
ing evidence standard, the appropriate remedy would be to
remand the issue to the district court so that it could apply the
correct standard to the applicable facts in exercise of its discre‐
tion. This is because the assessment and weighing of facts inher‐
ent in reaching a judgment based on the application of any
standard of proof is particularly within the province of the trial
court and not a proper subject for appellate court decision‐mak‐
ing in the first instance. See generally Willey v. Willey, 951 P.2d
226, 230 (Utah 1997) (“It is inappropriate in most instances for an
appellate court to . . . assume the task of weighing evidence and
making its own findings of fact.” Rather, “[t]he appellate court . .
. . grant[s] considerable deference to the trial court [in regard to
fact‐intensive matters] due to its familiarity with the facts and
the evidence.”).
In addition, in a single footnote, the Whites argue that the
“evidence shows that even [the beyond a reasonable doubt]
standard of proof was satisfied through the evidence presented
at trial.” This single sentence is insufficient to challenge the
district court’s findings and conclusions. Notably, the Whites do
not mention, let alone challenge, the factual findings the district
court made in support of its decision. See supra ¶ 6.
20110126‐CA 7 2013 UT App 116Dickman Family Properties v. White
relevant legal authority.” Id. (alterations in original) (internal
quotation marks omitted). “Issues that are not raised [in the trial
court] are usually deemed waived.” Id.
¶10 In the section of their appellate brief where the Whites must
identify the location in the record where the issue raised on appeal
was preserved, the Whites generally direct us to their motion for an
order to show cause and its supporting memoranda. See generally
Utah R. App. P. 24(a)(5)(A) (requiring an appellate brief to contain
“[a] statement of the issues presented for review . . . [including]
citation to the record showing that the issue was preserved in the
trial court”). However, we have been unable to identify any place
in these written submissions where the Whites mention the
distinction between civil and criminal contempt proceedings or
refer to this proceeding as either civil or criminal. Indeed, the
request for an award of attorney fees itself is the only thing that
suggests that the contempt proceeding might have a civil purpose.
On the other hand, the Whites argued that by filing a false
declaration, the witness essentially committed perjury, and “if a
witness commits perjury, he or she can be reached by contempt
proceedings.”4
¶11 The first time that the nature of the contempt proceeding
was directly addressed below by any participant was when the
district court itself ruled from the bench that this proceeding was
criminal in nature and therefore required application of the beyond
a reasonable doubt standard of proof. At that time, the Whites
4
In the witness’s response to the Whites’ motion for an
order to show cause, he explains that contempt proceedings may
be either criminal or civil in nature, but he does so without
asserting or suggesting that this proceeding is one or the other.
This appears to be the only mention of the distinction between
civil and criminal contempt proceedings in the Whites’ and the
witness’s memoranda prior to the district court’s oral ruling on
this matter.
20110126‐CA 8 2013 UT App 116Dickman Family Properties v. White
raised no objection. The court’s oral ruling was memorialized in a
proposed order submitted by the witness, which reiterated that the
contempt proceeding was for the purpose of protecting “the
authority and integrity of court processes” and was therefore
criminal in nature and required that the Whites “prove beyond a
reasonable doubt that [the witness] willfully and intentionally
testified falsely in his Declaration.” The Whites filed a written
objection to the order but took no exception to the conclusion
regarding the criminal nature of the contempt proceeding and the
applicable burden or proof. Rather, the Whites objected that the
proposed order did not contain a more detailed explanation of the
analysis that the court “undertook to determine whether the
contempt proceeding[] . . . w[as] civil or criminal in nature” and
requested inclusion in the order of a few additional statements
made by the court in entering its oral ruling. Essentially, the
Whites’ objection simply asked the court to expand the discussion
of the basis for the court’s conclusion that the proceeding was
criminal, but without alerting the court to the seemingly more
critical point that they disagreed with the ultimate conclusion that
the proceeding was criminal in nature.
¶12 The question of whether the Whites adequately raised this
issue to the district court is important given the applicable standard
of review. See Shipman v. Evans, 2004 UT 44, ¶¶ 39‐40, 100 P.3d 1151(explaining that the district court’s exercise of its contempt power
is reviewed for an abuse of discretion and that discretion “includes
not just the power to decide whether a party should be held in
contempt, but the power to determine whether [the purpose of] a
particular contempt order is civil or criminal” (citing Von Hake v.
Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds
as stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991))). Here,
the district court explicitly “f[ound] that what is at stake [in this
case] is the authority and integrity of court processes,” and
therefore “conclude[d] that these [we]re criminal contempt
proceedings.” The “court’s decision to treat [the contempt]
proceeding as an action for criminal contempt [i]s . . . conclusive
20110126‐CA 9 2013 UT App 116Dickman Family Properties v. White
evidence of its purpose” in entertaining this contempt proceeding.
See id. ¶ 41. If the Whites intended the contempt proceeding to be
for a compensatory purpose‐‐thus making the proceeding civil,
rather than criminal‐‐they should have made that clear to the
district court from the beginning so the court could understand
exactly what the Whites perceived to be the boundaries of the
court’s authority. This is particularly pertinent in this situation
where the Whites assert that they are entitled to control the
purpose of the contempt proceeding by having initiated it‐‐an
argument they make in the face of much precedent that suggests
that such a determination is within the discretion of the district
court. In any event, at the time the court ruled from the bench, the
Whites were unambiguously alerted to the fact that their
conception of the purpose of the contempt proceeding was very
different from the court’s in a way that had a significant effect on
the applicable standard of proof and, in their view, could be
determinative of the outcome of the proceeding itself. At that time,
the Whites should have brought this issue to the court’s attention.
The Whites then let pass another opportunity to bring this issue to
the court’s attention when they objected to the proposed order
without advising the court that, in their view, it had erred by
misapprehending the nature of the proceeding and applying the
wrong standard of proof.
¶13 Thus, the Whites did not raise this issue to the district court
“in such a way that” it would put the court “on notice of the
asserted error” and give the court “an opportunity to rule on that
issue” and “allow[] for correction at that time in the course of the
proceeding.” See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801. As a consequence, the district court was never given the
opportunity to consider the question the Whites raise on appeal,
i.e., whether their request for compensation in the form of attorney
fees required that the district court treat the contempt proceeding
as civil rather than criminal. Its decision that the proceeding was
criminal in nature is otherwise well within the scope of the district
20110126‐CA 10 2013 UT App 116Dickman Family Properties v. White
court’s discretion under established law, and we see no basis for
disturbing it.
¶14 Accordingly, we affirm.
ON PETITION FOR REHEARING
¶15 After the issuance of our decision in this case, the Whites
submitted a petition for rehearing, requesting that we reconsider
our conclusion that they had failed to preserve the issue raised on
appeal. We decline to disturb our original decision.
¶16 In their petition for rehearing, the Whites draw our attention
to several other places in the record where they requested attorney
fees under Utah Code section 78B‐6‐311 in connection with the
contempt proceeding they had initiated against Wright. The fact
that they requested attorney fees on more occasions than we
identified in our original decision does not address the core
preservation problem on which the decision turned, i.e., that they
never explained to the district court the particular legal significance
that they ascribed to their request for attorney fees. The Whites
now persist in their contention that by asking for attorney fees they
made the contempt proceeding civil in nature, thus requiring
application of a lower standard of proof (clear and convincing
evidence), rather than the criminal contempt standard of proof
(beyond a reasonable doubt) that the court actually applied.
However, the Whites still have not identified any place in the
record where they indicated to the court that their request for
attorney fees automatically required the court to consider the
proceeding to be civil in nature or even mentioned the standard of
proof applicable to contempt proceedings, whether civil or
criminal.
¶17 Even if a request for attorney fees alone should have been
sufficient to communicate such an argument to the court, as the
20110126‐CA 11 2013 UT App 116Dickman Family Properties v. White
Whites now contend, when the district court rendered its written
decision, it should have become apparent that the district court had
not understood that argument because the court explicitly labeled
the proceedings as criminal and identified the applicable standard
of proof as beyond a reasonable doubt. At that moment, it became
crystal clear that the court’s view of the proceedings significantly
diverged from the Whites’, i.e., that the court had misunderstood
the legal implications of their bare request for attorney fees. The
Whites do not contend that they themselves were unaware of what
they now assert as error in the court’s decision, yet they made no
attempt to alert the court to this core disagreement even though
they filed a subsequent objection to the resulting order, criticizing
it in a number of other particulars.
¶18 Although the Whites do not characterize their argument in
this way, they appear to be claiming that the district court’s failure
to understand the implication of their request for attorney fees was
a mistake so obvious that it amounted to plain error, which is an
exception to the preservation requirement. See generally Danneman
v. Danneman, 2012 UT App 249, ¶ 10, 286 P.3d 309 (mem.)
(explaining that to demonstrate plain error, the party asserting an
unpreserved issue must show “that (1) the district court erred, (2)
the error should have been obvious to the district court, and (3) the
error was harmful” (citation and internal quotation marks
omitted)). They have provided no plain error analysis, however,
and it is not at all clear that the point, even if correct, should have
been obvious to the district court.
¶19 In addition, the argument the Whites raised on appeal is not
simply that the court abused its discretion in characterizing the
contempt proceeding as it did but that the district court erred as a
matter of law. In effect, the Whites argue that they, and not the
district court, had the authority to determine whether the purpose
of the contempt proceeding was civil or criminal. See supra ¶ 8.
That argument was never articulated to the district court,
regardless of how many times the Whites requested attorney fees
20110126‐CA 12 2013 UT App 116Dickman Family Properties v. White
or whether the Whites’ request for attorney fees should have been
interpreted as a request for a civil, as opposed to a criminal,
contempt proceeding.
¶20 Accordingly, we decline to change our decision affirming
the district court.
20110126‐CA 13 2013 UT App 116