Valerios Corp. v. MacIas ( 2015 )

2015 UT App 4_________________________________________________________
THE UTAH COURT OF APPEALS
VALERIOS CORP., GERARDO RAMOS,
AND TOMAS VALERIO,
Plaintiffs and Appellees,
v.
RAMON RAMIREZ MACIAS; TAQUERIA RAMONES, LLC;
AND MIGUEL AGUILERA,
Defendants and Appellants.
Opinion
No. 20130416-CA
Filed January 2, 2015
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 110917078
David S. Head and Loren M. Lambert, Attorneys for
Appellants Ramon Ramirez Macias and
Taqueria Ramones, LLC
James L. Harris, Attorney for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).
Valerios v. Ramirez Macias
ROTH, Judge:
¶1 This case arises from a claim of trademark and tradename
infringement. Valerios Corp., Gerardo Ramos, and Tomas
Valerio (collectively, Valerios) brought suit for trademark and
tradename infringement against Ramon Ramirez Macias;
Taqueria Ramones, LLC; and Miguel Aguilera (collectively,
Defendants). Defendants appeal from the district court’s entry of
a preliminary injunction in Valerios’s favor arguing the judge
improperly relied on ex parte evidence in adding tradename
protection after the original ruling, wrongly denied their request
for a jury trial in connection with a criminal contempt
proceeding, and based its award of contempt damages on
insufficient evidence. We affirm in part, reverse in part, and
remand for further proceedings.
BACKGROUND
¶2 Valerios owned and operated four La Fuente restaurants
in Utah. Valerios registered the tradename ‚La Fuente‛ and an
associated trademark logo for ‚La Fuente Restaurant‛ with the
State. In August 2011, Valerios filed a complaint against
Defendants for trademark infringement, trademark dilution,
unfair competition, and other related state and common law
claims. Defendants operated a restaurant named ‚La Fuente de
Salt Lake,‛ and Valerios contended that poor service and food at
Defendants’ restaurant was causing damage to the reputation of
its restaurant chain because of similar names and logos. Valerios
also claimed that it was losing goodwill as a result of declining
to accept Defendants’ restaurant coupons that customers tried to
redeem at Valerios’s restaurants. Valerios sought damages for
lost profits and also moved for a preliminary injunction to
prohibit Defendants from using the ‚La Fuente‛ name and
trademark during the pendency of the proceedings.
20130416-CA 2 2015 UT App 4Valerios v. Ramirez Macias
¶3 At a preliminary injunction hearing on December 8, 2011
(the December 2011 hearing), the district court concluded that
the logos of the two restaurants were ‚all but‛ indistinguishable.
The court also noted that Defendants’ version was ‚a very
colorable imitation‛ of Valerios’s logo and that it would
challenge ‚any member of the public to be able to discern a
difference.‛ As a result, the court found that Defendants had
violated statutory prohibitions against ‚reproductions,
counterfeits, copies, *and+ colorable imitations‛ of registered
trademarks. The court granted an injunction and ordered
Defendants ‚to cease and desist of any use, display of colorable
imitation of the trademark, including stylized text.‛ The court
stated, however, that it was not ready to rule on whether it
would enjoin Defendants from using the name ‚La Fuente de
Salt Lake‛ because the State had accepted the name for
registration as a tradename and the court was unsure whether
use of a registered tradename, however similar it might be to
another earlier-registered tradename, could constitute
infringement under Utah law. So the court declined to order
Defendants to discontinue use of the name ‚La Fuente de Salt
Lake‛ for the time being but admonished them to ‚use better
judgment than you have thus far‛ and to change their behavior
substantially in a way ‚that the plaintiffs, that the public, that
the statute won’t be violated or misled as a [result of the]
counterfeit or imitation.‛
¶4 The district court asked Valerios to prepare the
preliminary injunction order. Valerios’s proposed order
included a line prohibiting Defendants from ‚using the LA
FUENTE mark and name.‛ Defendants objected, citing the
court’s oral ruling allowing them to continue to use the name
‚La Fuente de Salt Lake.‛ At a hearing on the objection on May
23, 2012 (the May 2012 hearing), the court posed questions to
both sides about the difference between a registered trademark
and a registered tradename and specifically questioned counsel
about the process employed by the state in registering
tradenames.
20130416-CA 3 2015 UT App 4Valerios v. Ramirez Macias
¶5 The judge stated that a few weeks prior he had been in
West Valley City and had inadvertently seen a sign for what he
assumed was Defendants’ restaurant. He noted that it did not
look like Defendants had made any effort to avoid continued
infringement on Valerios’s trademark. The judge also stated the
use of the name ‚La Fuente‛ by Defendants had caused him
concern and that he felt people who saw the sign would be
confused as to whether they were at Defendants’ or Valerios’s
restaurant. The judge asked questions about Defendants’ efforts
to comply with the ruling he had made at the December 2011
hearing and again initiated discussion about the process of
registering tradenames with the state and whether the use of the
name ‚La Fuente de Salt Lake‛ could qualify under the relevant
statutes as legal infringement despite the fact that it was a name
Defendants had registered. The judge then stated that ‚what the
Court was trying not to do‛ in its ruling at the December 2011
hearing ‚was to interfere ‘with a name registered by the State’‛
and that it was not the court’s intent to tell the State it needed to
void or change the registration it had given to Defendants. The
court concluded, however, that the registration of a tradename
by the State ‚doesn’t give this defendant or any other person the
ability to . . . infringe on existing names.‛
¶6 After determining that continued use of the name ‚La
Fuente de Salt Lake‛ would violate the rights of Valerios, who
had registered its ‚La Fuente‛ tradename before Defendants had
registered theirs, the district court ordered Defendants to cease
using the words ‚La Fuente‛ in association with their restaurant.
The court also expressed its disappointment, based on the
judge’s own observations in West Valley City, that Defendants
had not made any good faith effort to comply with the court’s
original trademark order. In response to the court’s ruling at the
May 2012 hearing, Valerios prepared a new order that included
a provision requiring ‚Defendants [to] cease using the ‘La
Fuente’ mark and name during the pendency of this matter
including, but not limited to, the use of the name ‘La Fuente’ on
signs, advertisements, and menus.‛
20130416-CA 4 2015 UT App 4Valerios v. Ramirez Macias
¶7 Before the year was out, Valerios filed a motion asking the
court to hold Defendant Ramirez Macias in contempt of court for
violating the preliminary injunction, citing continued
infringement of Valerios’s trademark following the December
2011 hearing and continued use of the name ‚La Fuente‛
following the May 2012 hearing. After a hearing on December
13, 2012, the court found Ramirez Macias in contempt and
imposed a $1,000 fine and thirty days in jail. Valerios prepared a
proposed contempt order, which included an award of $7,400 in
damages, a figure it arrived at by multiplying $20 by the number
of days between the date of the original December 2011 hearing
and the December 13, 2012 contempt hearing. Before the order
was entered, however, Defendants filed a motion asking the
district court to vacate its contempt ruling because Ramirez
Macias had not been provided a jury trial. The court denied the
motion and entered the proposed order.
¶8 Defendants now appeal.
ISSUES AND STANDARDS OF REVIEW
¶9 Defendants first argue that the court’s decision to add
tradename protection to the preliminary injunction at the May
2012 hearing was in error because it was based on the court’s
improper consideration of ex parte evidence. ‚This issue
presents a question of law that we review for correctness.‛ White
v. Randall, 2007 UT App 45, ¶ 6, 156 P.3d 849.
¶10 Defendants next argue that the court erred when it failed
to grant Ramirez Macias a jury trial before finding him in
contempt. ‚When the contempt is not committed in the
immediate view and presence of the court or judge,‛ Gardiner v.
York, 2010 UT App 108, ¶ 35, 233 P.3d 500 (citation and internal
quotation marks omitted), we review a district court’s findings
of fact for clear error and apply a ‚correction of error standard‛
to our review of the district court’s legal determinations, State v.
20130416-CA 5 2015 UT App 4Valerios v. Ramirez Macias
Long, 844 P.2d 381, 383 (Utah Ct. App. 1992) (citation and
internal quotation marks omitted). ‚Constitutional issues,
including questions regarding due process, are questions of law
that [appellate courts] review for correctness.‛ Chen v. Stewart,
2004 UT 82, ¶ 25, 100 P.3d 1177, overruled on other grounds by State
v. Nielsen, 2014 UT 10, 326 P.3d 645.
¶11 Finally, Defendants contend that the court’s award of
damages for contempt is unsupported by the evidence. We
review a district court’s entry of contempt sanctions for an abuse
of discretion. Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079.
ANALYSIS
I. Ex Parte Evidence
¶12 ‚*T+he Utah Supreme Court has taken a firm stance
against trial courts’ use of materials outside of the evidence
presented by parties at trial.‛ White, 2007 UT App 45, ¶ 10. ‚In
deciding a case tried without the aid of a jury, the court has great
leeway in deciding what are the facts as presented by the
evidence before [it]. However, neither a judge nor a jury is
permitted to go outside the evidence to make a finding.‛ Id. ¶ 6
(alteration in original) (citation and internal quotation marks
omitted). Defendants argue that the court’s decision to add
tradename protection to the trademark protection it had already
ordered was improperly based on ‚evidence that had not been
presented or seen by any of the parties,‛ to wit, the judge’s
inadvertent observation of Defendants’ restaurant sign in West
Valley City. We conclude, however, that the addition of
tradename protection to the order was not based on a change in
the facts before the court, but on its evolving understanding of
tradename law.
¶13 At the time of the December 2011 hearing, the court was
presented with evidence that both Valerios and Defendants had
20130416-CA 6 2015 UT App 4Valerios v. Ramirez Macias
been permitted to register their tradenames (‚La Fuente‛ and
‚La Fuente de Salt Lake,‛ respectively) with the State. The court
seemed to be concerned about whether the State’s acceptance of
Defendants’ tradename for registration meant that they were
legally protected from any infringement claim, even though
Valerios had registered its name first. But at the close of that
hearing, the district court stated that it was not yet ready to
decide the issue of tradename protection and that it was leaving
the issue open.2 As a consequence, the court declined to include
tradename protection in its oral ruling. This was long before the
judge was exposed to any ex parte evidence.
¶14 The court returned to the tradename issue at the May
2012 hearing as a result of Defendants’ objection to Valerios’s
inclusion of tradename protection in its proposed order
memorializing the December 2011 hearing. After hearing
additional argument from both parties regarding the process
employed by the State to register tradenames, the court
reassessed its position and decided that Defendants should be
prohibited from using the name ‚La Fuente‛ in any variation.
This change was grounded in the court’s legal determination
that despite having succeeded in registering ‚La Fuente de Salt
Lake‛ as a tradename, Defendants’ continued use of the name
could constitute infringement on Valerios’s rights to its own
earlier-registered name, ‚La Fuente,‛ under applicable law.
2. The court mistakenly referred to the tradename registered by
Defendants as a trademark, but from the context of the
proceedings, it is clear it was referencing the registered
tradename, ‚La Fuente de Salt Lake,‛ that had been the primary
focus of discussion throughout the hearing. At the time of the
December 2011 hearing, no trademark had been registered by
Defendants.
20130416-CA 7 2015 UT App 4Valerios v. Ramirez Macias
¶15 Defendants do not challenge the legal basis for the court’s
decision that Valerios was entitled to tradename protection, nor
do they contend that the evidence properly before the court was
insufficient to support its findings of fact or that those findings
were inadequate to support the court’s preliminary injunction
order. Rather, they simply contend that the ‚court based its
ruling upon evidence that had not been presented or seen by any
of the parties.‛ But they provide no basis in the record to
support this assertion other than the fact that during the same
hearing that it decided the tradename issue, the court stated it
had seen Defendants’ restaurant sign and expressed disapproval
that the sign appeared to be in violation of the court’s earlier
trademark ruling. The fact that the judge expressed a strong
opinion, apparently based on his West Valley City observations,3
regarding the sign’s noncompliance with his earlier unequivocal
instructions to Defendants concerning their trademark does not
3. The judge was careful to disclose what he had seen and his
concern about having seen it to the parties:
I’m sorry, if you want to ascribe error to this and––
you can do what you want. But the fact is the Court
unintentionally, without any manner to seek this
out, happened to drive by the defendants’
restaurant. And the Court’s initial reaction was
nothing had been done, or . . . if it had been done, it
wasn’t sufficient. So assume no action or there’s no
apparent good faith effort to comply, as the Court
sees it.
And he seemed fully aware of the problems inherent with ex
parte evidence as demonstrated by his statements reassuring the
parties that he did not seek out the sign on his own initiative. For
example, he stated, ‚Now, I didn’t seek it out. . . . I just drove
by,‛ and ‚I mean, you look at your sign—and I’m sorry that I
drove by, but—I mean, it was just there.‛
20130416-CA 8 2015 UT App 4Valerios v. Ramirez Macias
persuade us that the ex parte evidence was a material basis for
the court’s resolution of the tradename issue, a legal issue the
court had expressly left open at the prior hearing and resolved
on a legal basis at the May 2012 hearing.4 We therefore conclude
that the district court did not improperly rely on ex parte
evidence when it added tradename protection to the preliminary
injunction.
II. Right to a Jury Trial
¶16 Next, Defendants argue that Ramirez Macias was entitled
to certain protections provided to criminal defendants,
principally the right to a jury trial, prior to being found in
contempt for violating the preliminary injunction that had been
entered. They argue that a finding of criminal contempt is so
similar to a criminal conviction as to warrant the same
4. The preliminary injunction order the district court entered
following the May 2012 hearing did contain a finding of fact that
could arguably have resulted from the ex parte evidence:
‚Defendants have not made good faith efforts to comply with
the Court’s bench ruling to cease and desist any use and display,
or any colorable display, of *Valerios’s+ trademark.‛ This finding
is consistent with the disappointment the court expressed at the
May 2012 hearing with Defendants’ efforts to comply with the
court’s previous instructions to change their sign and behavior
to avoid future trademark infringement. But it is also consistent
with information provided at the hearing by counsel—counsel
for Defendants describing changes in the font and logo the court
deemed ‚minor‛ and counsel for Valerios stating that his clients
were frustrated because they had seen ‚no changes‛ to
Defendants’ sign or logo. There is no indication that this finding
is necessary for or related to the tradename protection addition
to the order.
20130416-CA 9 2015 UT App 4Valerios v. Ramirez Macias
safeguards and that the right to a jury trial in criminal
proceedings is guaranteed by the Utah Constitution.5
¶17 Contempt can be either civil or criminal, depending on
the ‚trial court’s purpose in entering the order.‛ 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). ‚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.‛ Id. Civil contempt orders, on the other hand, have
remedial purposes such as ‚compensat[ing] an aggrieved party
for injuries resulting from the failure to comply with an order‛
or ‚coerc[ing] an individual to comply with a court order given
5. Defendants argue that we ‚should also vacate the *district+
court’s Order Granting Contempt of Court Ruling, and remand
the matter for further proceedings‛ because the preliminary
injunction ‚was the basis for the foregoing finding of contempt,
and if the [district] court had not altered its ruling based upon
the above ex-parte evidence, there would have not been a basis
to find Mr. Ramirez Macias in contempt.‛ In other words,
Defendants argue that if the court had not wrongly added
tradename protection to the order, Ramirez Macias’s continued
use of the ‚La Fuente‛ name would not have violated the order.
But having found no error in the district court’s entry of the
preliminary injunction, we have no reason to vacate the
contempt order on that basis. And we take this opportunity to
reaffirm that ‚*t+he proper method for contesting an adverse
ruling is to appeal it, not to violate it.‛ State v. Clark, 2005 UT 75,
¶ 36, 124 P.3d 235. Even if the district court had erred in adding
tradename protection to the preliminary injunction, simply
ignoring it would not have been either a legal option or a wise
choice for Defendants.
20130416-CA 10 2015 UT App 4Valerios v. Ramirez Macias
for the benefit of another party.‛6 Id. While the standard of proof
for civil contempt is ‚clear and convincing evidence,‛ the
elements of criminal contempt must be proven ‚beyond a
reasonable doubt.‛ Id. at 1172. Defendants argue that because the
district court found Ramirez Macias in criminal contempt, he
had the right to a jury trial, which the court should have granted
him sua sponte.7 Defendants provide little analysis in support of
this assertion, and our case law seems to support a contrary
conclusion.
¶18 The United States Supreme Court has stated that ‚in the
absence of legislative authorization of serious penalties for
contempt, a State may choose to try any contempt without a jury
if it determines not to impose a sentence longer than six
months.‛ Taylor v. Hayes, 418 U.S. 488, 496 (1974). The Court
concluded that while ‚hearing and notice‛ are still essential in
contempt proceedings in order to provide a party the protections
of due process, neither petty contempt nor petty criminal
offenses warrant a ‚full-scale trial.‛ Id. at 495–96, 500 n.9
(citation and internal quotation marks omitted). The Court has
reached the same conclusion about the imposition of contempt
fines, concluding that a jury trial is only necessary in contempt
proceedings where the fines are ‚serious‛ and ‚criminal.‛
International Union, United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 837 n.5 (1994) (determining that where the contempt
fines in question totaled more than $52 million, the fines were
‚serious,‛ ‚criminal,‛ and ‚constitutionally could not be
6. Because the court’s contempt order provided Valerios with
compensation for Ramirez Macias’s contemptuous acts, it has a
civil aspect, but the criminal aspect of the order is what concerns
us in this section of our analysis.
7. Ramirez Macias did not request a jury trial until he filed a
motion sometime after the contempt hearing had occurred.
20130416-CA 11 2015 UT App 4Valerios v. Ramirez Macias
imposed absent a jury trial‛); see also id. at 836–38. The Court
reaffirmed, however, the ability of trial courts to ‚impose
noncompensatory, petty fines for contempts . . . without
conducting a jury trial.‛ Id. at 839.
¶19 We adopted these standards in Gardiner v. York, 2010 UT
App 108, 233 P.3d 500, where we considered whether a trial
court erred in finding a party guilty of contempt and imposing
sanctions without a jury. Id. ¶¶ 11, 44. We concluded, as had the
Supreme Court, that trial by jury is only required to satisfy the
requirements of due process in indirect criminal contempt
proceedings8 ‚if the sentence imposed exceeds six months of
incarceration or the fines are serious and punitive.‛ Id. ¶ 44 &
n.16 (citing International Union, 512 U.S. at 837; Taylor, 418 U.S. at
495). We stated that ‚*w+hile we reaffirm the prerogative of trial
courts to use the contempt power and other appropriate
remedies to maintain order in matters that come before them, we
caution that the exercise of that power must be consistent with
constitutional due process requirements.‛ Id. ¶ 19. Nevertheless,
we determined that while district courts in Utah must provide a
party ‚notice and an opportunity to be heard‛ prior to entering a
finding of indirect criminal contempt, a jury trial is not required.
Id. ¶ 36 & n. 16.
8. Contempt can be direct or indirect. Gardiner v. York, 2010 UT
App 108, ¶ 36, 233 P.3d 500. Direct contempt occurs when the
action constituting contempt occurs in the immediate presence of
the court, such as speaking disrespectfully to a judge. See State v.
Williams, 2006 UT App 420, ¶ 13, 147 P.3d 497. Indirect contempt
occurs ‚outside the presence of the court.‛ Gardiner, 2010 UT
App 108, ¶ 36. Here, the actions taken by Ramirez Macias in
failing to comply with the order occurred outside the immediate
presence of the judge, and therefore amount to indirect
contempt.
20130416-CA 12 2015 UT App 4Valerios v. Ramirez Macias
¶20 Further, the Utah Legislature has limited the available
punishments for contempt to ‚a fine not exceeding $1,000‛ and a
period of incarceration not longer than thirty days. Utah Code
Ann. § 78B-6-310 (LexisNexis 2012). Here, the $1,000 fine
imposed on Ramirez Macias by the district court did not exceed
the limits set by law, see id., nor did it exceed the legal bounds
recognized by both the Supreme Court and this court, because it
was not ‚serious and punitive,‛ see Gardiner, 2010 UT App 108,
¶ 44 n.16; see also International Union, 512 U.S. at 836–38 & n.5.
Similarly, the thirty-day jail sentence was within statutory
bounds, see Utah Code Ann. § 78B-6-310, and consequently did
not exceed the six-month maximum established in Gardiner, see
2010 UT App 108, ¶ 44 n.16; see also Taylor, 418 U.S. at 495–96.
And Ramirez Macias was provided with notice and the
opportunity to be heard in compliance with the requirements of
due process we recognized in Gardiner. See 2010 UT App 108,
¶ 36 (‚[I]ndirect contempt can only be sanctioned after notice
and an opportunity to be heard.‛); see also Taylor, 418 U.S. at 496
& n.9.
¶21 Defendants argue, however, that Gardiner’s analysis
focused on the due process protections afforded to parties in
contempt proceedings under the United States Constitution, not
the Utah Constitution. And they assert that Ramirez Macias had
a right to a jury trial under the Utah Constitution, which they
claim provides broader protection in such circumstances. In
support of this argument, however, Defendants do little more
than quote Article I, Section 12, of the Utah Constitution, which
states in pertinent part: ‚In criminal prosecutions the accused shall
have the right . . . to have a speedy public trial by an impartial
jury of the county or district in which the offense is alleged to
have been committed . . . .‛ Utah Const. art. I, § 12 (emphasis
added). But the Sixth Amendment to the United States
Constitution is very similar, providing: ‚In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed . . . .‛ U.S. Const. amend. VI
20130416-CA 13 2015 UT App 4Valerios v. Ramirez Macias
(emphasis added). And Defendants make no effort to
demonstrate that the term ‚criminal prosecutions‛ in the Utah
Constitution is so different in scope from the ‚criminal
prosecutions‛ referenced in the Federal Constitution as to
suggest a different standard. See U.S. Const. amend. VI
(establishing the rights afforded to the accused in ‚criminal
prosecutions‛); Utah Const. art. I, § 12 (same). Nor do they
explain how the right in Utah to ‚a speedy public trial by an
impartial jury‛ is a more expansive right than the ‚speedy and
public trial, by an impartial jury‛ promised in the Federal
Constitution. Thus, beyond simply equating the term ‚criminal
prosecution‛ used in Article I, Section 12 with a criminal
contempt proceeding because both are ‚criminal,‛ Defendants
make little attempt to analyze whether the concept of ‚criminal
prosecution‛ extends any further under the Utah Constitution in
the context of contempt proceedings than it does under the
Federal Constitution. See Midvale City Corp. v. Haltom, 2003 UT
26, ¶¶ 73–75, 73 P.3d 334 (explaining that while ‚the state
constitution can provide protections that differ from those
available under the Federal Constitution, the failure to define the
nature of those protections is fatal‛ to an appellant’s claim and
that ‚*w+ithout analysis, the court can make no informed
decision regarding whether the state constitutional provision in
question was intended to mirror its federal counterpart, or
whether it was intended to expand the scope‛ of the
constitutional right at issue). As a consequence, Defendants have
failed to persuade us that Gardiner does not apply here.
¶22 Accordingly, we conclude that Ramirez Macias was not
entitled to trial by jury on the criminal contempt charge.9
9. Defendants also argue that, because the contempt proceeding
was criminal, Ramirez Macias was entitled to ‚all of the
protections‛ and ‚other rights‛ afforded to criminal defendants.
But with one exception aside from the right to a jury trial already
(continued...)
20130416-CA 14 2015 UT App 4Valerios v. Ramirez Macias
III. Award of Damages
¶23 Finally, Defendants argue that the court erred in
awarding Valerios $7,400 in damages.
¶24 Valerios estimated the injury resulting from Defendants’
violations of the court’s order at $20 per day multiplied by the
number of days between the December 2011 hearing and the
final contempt hearing on December 13, 2012, and the district
court awarded this amount to Valerios in its contempt order. But
‚the amount of fees and costs awarded under the Contempt
Statute cannot exceed the amount of ‘actual loss or injury’
suffered by the other party.‛ Goggin v. Goggin, 2013 UT 16, ¶ 36,
299 P.3d 1074 (quoting Utah Code Ann. § 78B-6-311 (LexisNexis
2012)). While Valerios contends that its $20-per-day damages
estimate is ‚very‛ conservative, evidence in contempt
proceedings, as elsewhere, must ‚rise*+ above speculation and
provide[] a reasonable, even though not necessarily precise,
estimate of damages.‛ TruGreen Cos. v. Mower Bros., Inc., 2008 UT
81, ¶ 15, 199 P.3d 929 (citation and internal quotation marks
omitted). We agree with Defendants that Valerios’s bare $20-a-
day conclusion, unsupported by any testimony or any other
discussed, Defendants never identify what ‚other rights‛ they
are referring to or what rights criminal defendants receive that
Ramirez Macias was denied. The only right Ramirez Macias
names specifically is the right against self-incrimination. Even if
we assumed that Ramirez Macias was entitled to such a right (an
issue we do not reach here), Defendants do not establish that any
right against self-incrimination that Ramirez Macias may have
had was violated. No transcript of the contempt hearing was
provided on appeal, and Defendants have pointed to nothing in
the record suggesting that Ramirez Macias was compelled to
testify at the contempt hearing against his will. We therefore
reject this claim as well.
20130416-CA 15 2015 UT App 4Valerios v. Ramirez Macias
evidence, is too speculative and arbitrary to meet this standard,
and the $7,400 award based solely on that estimate therefore
exceeds the court’s discretion. Accordingly, we vacate the $7,400
judgment and remand this case to the district court to determine
the actual damages incurred by Valerios.
CONCLUSION
¶25 We conclude that the district court did not err when it
revisited its ruling concerning Defendants’ use of the tradename
‚La Fuente.‛ We also conclude that Ramirez Macias was not
entitled to a jury trial on the issue of criminal contempt. Finally,
we determine that the damages entered by the district court
were speculative. We therefore affirm the tradename ruling and
contempt finding but vacate the $7,400 judgment and remand
for further proceedings.
20130416-CA 16 2015 UT App 4