Heywood v. Department of Commerce ( 2017 )


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    2017 UT App 234
    THE UTAH COURT OF APPEALS
    AUSTIN G. HEYWOOD JR.,
    Petitioner,
    v.
    DEPARTMENT OF COMMERCE, DIVISION OF REAL ESTATE,
    Respondent.
    Opinion
    No. 20160289-CA
    Filed December 21, 2017
    Original Proceeding in this Court
    Harold L. Reiser and Adam H. Reiser, Attorneys
    for Petitioner
    Sean D. Reyes and Brent A. Burnett, Attorneys
    for Respondent
    JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
    MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.
    HAGEN, Judge:
    ¶1     In 2006, a bankruptcy court found that Austin G.
    Heywood Jr., a real estate agent, committed fraud by concealing
    a bona fide purchase offer from his client so that he could force a
    short sale of the property to his own investment group (the 2006
    transaction). Several years later, in November 2014, Heywood
    submitted an application to the Utah Department of Commerce,
    Division of Real Estate (the Division) to renew his license as a
    real estate sales agent. In light of the bankruptcy court’s finding,
    the Division found that Heywood did not demonstrate the
    “honesty, integrity, truthfulness, reputation, and competency”
    required for renewal and denied his renewal application. After
    exhausting his administrative review options, Heywood now
    petitions this court to review the denial of his license. We decline
    to disturb the Division’s decision.
    Heywood v. Department of Commerce
    BACKGROUND
    The 2006 Transaction
    ¶2     In 2006, Heywood acted as a real estate agent for a client
    who wanted to sell her home. The client was delinquent on her
    mortgage payments and had been unsuccessful in finding a
    buyer. Heywood told the client that he knew of a group of short-
    sale investors who were interested in purchasing her home.
    Heywood did not disclose that he had a personal interest in this
    group of investors, which included Heywood and his spouse.
    ¶3      In March 2006, Heywood listed the client’s property as
    under contract, although no offer had been made at that time.
    The house was ultimately sold to Heywood’s investment group
    for $352,000—a price below its appraised value of $380,000. Prior
    to the short sale, Heywood had received an offer from another
    buyer to purchase the property for $441,000, but he did not
    disclose the offer to the client or her lenders. The same day that
    the investment group purchased the property, Heywood resold
    it to the other buyer for a substantial profit.
    The Bankruptcy Proceedings
    ¶4     Shortly after the 2006 transaction, the client filed a
    petition for relief under chapter 7 of Title 11 of the United States
    Code in the United States Bankruptcy Court for the District of
    Utah. The bankruptcy trustee eventually brought several causes
    of action against Heywood, including a claim for common law
    fraud. Heywood was represented by counsel and had the
    opportunity to present evidence during a five-day bench trial.
    ¶5    Following briefing and oral argument, the bankruptcy
    court entered a memorandum decision in July 2009 (the 2009
    Memorandum Decision), concluding that Heywood was liable to
    the bankruptcy estate under common law fraud because his
    conduct was “intentionally fraudulent or manifested a knowing
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    Heywood v. Department of Commerce
    and reckless indifference toward and disregard of [the client’s]
    rights.”
    ¶6      Heywood did not appeal the bankruptcy court’s findings
    of fact and conclusions of law. Instead, he elected to enter into a
    settlement agreement with the bankruptcy trustee. Heywood
    agreed to pay damages to the trustee in exchange for the trustee
    releasing Heywood from “all claims, demands, debts,
    obligations, liabilities, costs, expenses, rights of action, causes of
    action, or judgments of any kind or character whatsoever”
    arising out of the client’s bankruptcy estate. The bankruptcy
    court approved the settlement agreement and then dismissed the
    case against Heywood. In doing so, the bankruptcy court did not
    vacate the 2009 Memorandum Decision.
    Licensing and Disciplinary Proceedings before the Division
    ¶7     In November 2009, the Division received a complaint
    about Heywood’s conduct during the 2006 transaction. The
    Division notified Heywood that it had initiated an investigation.
    ¶8     In 2010, Heywood applied for and was issued a renewed
    license. In his license renewal application, Heywood disclosed
    that the Division was conducting an investigation into the 2006
    transaction.
    ¶9    In 2012, Heywood again applied for and was issued a
    renewed license. In completing his online application, Heywood
    did not disclose that the Division’s investigation was still
    ongoing.
    ¶10 On the same day Heywood renewed his license online,
    the Division filed a notice of agency action and petition,
    initiating a disciplinary proceeding against Heywood to revoke
    his license. A year later, the parties stipulated to the dismissal of
    the disciplinary action to allow for further review and
    investigation.
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    Heywood v. Department of Commerce
    ¶11 In 2014, Heywood submitted another license renewal
    application. This time, the Division denied his application.
    Heywood subsequently filed a request for agency review.
    Review by the Utah Real Estate Commission
    ¶12 On review, Heywood moved for summary disposition,
    arguing that the doctrine of laches applied because the Division
    unreasonably delayed taking action against him. The Presiding
    Officer of the Utah Real Estate Commission found that the
    doctrine of laches was inapplicable in an administrative context
    and, in any event, the passage of time in this case could not “be
    considered unreasonable or prejudicial, particularly where
    [Heywood] was at all times on notice of the investigation and
    was allowed to work on an unrestricted license.”
    ¶13 The Presiding Officer then granted the Division’s motion
    in limine to give preclusive effect to the 2009 Memorandum
    Decision. Heywood argued that the doctrine of issue preclusion
    did not apply because the 2009 Memorandum Decision, which
    left open the calculation of punitive damages, expressly stated
    that it was not a final judgment. Nevertheless, the Presiding
    Officer ruled that the 2009 Memorandum Decision became final
    as soon as “the 30-day deadline by which the trustee was
    required to request further hearing [on punitive damages]
    passed.” As the Presiding Officer noted, Heywood elected to
    settle the amount of damages owed to the estate rather than
    preserve his right to appeal. The Presiding Officer concluded
    that the parties did not stipulate to vacatur of the 2009
    Memorandum Decision as part of the settlement, nor did the
    bankruptcy court vacate its prior decision when it dismissed the
    case.
    ¶14 Following a hearing, the Presiding Officer entered a
    written order affirming the Division’s decision to deny
    Heywood’s 2014 license renewal application. The Presiding
    Officer based the decision not only on the 2006 transaction but
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    Heywood v. Department of Commerce
    also on Heywood’s lack of remorse and refusal to take
    responsibility for his conduct. Heywood “repeatedly attempted
    to defend the deal in its entirety” and “claimed he made full and
    appropriate disclosures.” He refused to acknowledge any
    wrongdoing and instead criticized the Division for not pursuing
    its concerns earlier. The Presiding Officer found that Heywood
    “does not appear to realize just how egregious his conduct was,
    despite having years to reflect upon it,” and that under those
    circumstances he “cannot be trusted to act in the public interest
    under a real estate license.” In addition to denying Heywood’s
    license renewal, the Presiding Officer ruled that he “may not
    reapply for a license with the Division for at least three years
    from the date of this order.” Following this decision, Heywood
    filed a request for further administrative review.
    Review by the Department of Commerce
    ¶15 On review to the Department of Commerce, Heywood
    raised, among other things, the same three issues presented on
    judicial review: (1) whether the doctrine of laches barred the
    Division’s denial of his license, (2) whether the Presiding Officer
    properly considered the 2009 Memorandum Decision, and
    (3) whether the three-year ban on applying for license renewal
    was unconstitutionally excessive. As to the third issue, which
    was not supported by “any legal authority or analysis,” the
    Executive Director of the Department of Commerce ruled that
    Heywood had failed to “meet the briefing requirements” and
    declined to consider that challenge.
    ¶16 The Executive Director rejected Heywood’s arguments
    regarding laches and the preclusive effect of the 2009
    Memorandum Decision. First, the Executive Director agreed
    that, even if the doctrine of laches could apply to a disciplinary
    proceeding where the agency is acting to protect public welfare,
    the renewal was not a disciplinary proceeding but a request for
    agency action initiated by Heywood. The Executive Director also
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    Heywood v. Department of Commerce
    concluded that Heywood had not suffered any prejudice as a
    result of the Division’s failure to pursue the disciplinary action.
    Second, the Executive Director agreed that the 2009
    Memorandum Decision was final and that the Presiding Officer
    properly considered the bankruptcy court’s findings of fraud in
    denying Heywood’s 2014 license renewal application. Heywood
    filed a request for judicial review.
    ISSUES AND STANDARDS OF REVIEW
    ¶17 Heywood asks this court to review three issues, two of
    which we address on the merits. First, Heywood claims that the
    denial of his license was untimely and should be barred by the
    doctrine of laches. Second, he argues that he should not have
    been precluded from challenging the findings made in the 2009
    Memorandum Decision because it was not a final order. Both of
    these legal issues were raised below and addressed in the
    Executive Director’s order. We review an administrative
    agency’s legal decisions for correctness, giving no deference to
    the agency. Hughes Gen. Contractors, Inc. v. Utah Labor Comm'n,
    
    2014 UT 3
    , ¶ 25, 
    322 P.3d 712
    .
    ¶18 Heywood’s third issue is whether the Division “abused its
    discretion by imposing an unreasonably harsh penalty upon
    [him] in barring him from reapplication until 2018.” While
    Heywood attempted to raise this issue below, the Executive
    Director declined to consider it due to Heywood’s inadequate
    briefing. To obtain judicial review, petitioners must
    “appropriately address their opening brief and arguments to the
    Executive Director’s final order.” Utah Physicians for a Healthy
    Env't v. Executive Dir. of the Utah Dep't of Envtl. Quality, 
    2016 UT 49
    , ¶ 16, 
    391 P.3d 148
    . Here, Heywood does not challenge the
    Executive Director’s refusal to reach the merits but instead takes
    issue with the Presiding Officer’s initial decision to impose the
    three-year ban. Because Heywood does not attack the basis for
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    Heywood v. Department of Commerce
    the Executive Director’s order, we do not reach the merits of this
    issue.
    ANALYSIS
    I. Timeliness
    ¶19 Heywood argues that the Division’s denial of his license
    is an “untimely licensing action” and should be barred by the
    doctrine of laches. 1 In making this argument, Heywood draws
    no distinction between the dismissed disciplinary action
    initiated by the Division and the 2014 licensing renewal
    application initiated by Heywood. He argues that characterizing
    the disciplinary proceeding and the license renewal as separate
    actions is “strictly semantics,” because the denial of his license
    renewal ultimately produced the same sanction that would have
    resulted from the dismissed disciplinary action—revocation of
    his real estate license. But disciplinary proceedings and denial of
    a renewal application are distinct agency actions.
    ¶20 Disciplinary proceedings are governed by sections 61-2f-
    401 to -410 of the Utah Code. While a disciplinary proceeding
    may result in the revocation of a license, other civil penalties can
    be assessed as well, including a fine of up to $5,000 per violation
    or the amount of any gain or economic benefit derived from each
    violation. See 
    Utah Code Ann. § 61
    -2f-407 (LexisNexis 2011).
    1. In his opening brief, Heywood makes an alternative argument
    that “the Division’s denial of Heywood’s license fails its own
    standards for timeliness pursuant to Utah Administrative Code
    Rule 151-4-108.” Because this argument was not raised in the
    administrative proceedings, we do not separately address it
    except to note that it rests on the same mistaken assumption that
    the disciplinary action that was later dismissed and the 2014
    licensing renewal application were the same “agency action.”
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    Heywood v. Department of Commerce
    ¶21 On the other hand, license renewal is governed by
    sections 61-2f-201 to -208 of the Utah Code. Unlike a disciplinary
    action initiated by the Division, a renewal request is triggered by
    the licensee’s application. An applicant is not automatically
    entitled to renewal and the Division must consider the honesty,
    integrity, truthfulness, reputation, and competency of the
    applicant before granting the renewal. See 
    Utah Code Ann. § 61
    -
    2f-203(1)(c) (LexisNexis Supp. 2017).
    ¶22 The distinction between an agency-initiated disciplinary
    action and a request for agency action by a licensee is fatal to
    Heywood’s laches argument. Heywood attempts to invoke
    laches to require the Division to renew his license because the
    Division did not act to revoke his license sooner. Laches is an
    “equitable doctrine by which a court denies relief to a claimant
    who has unreasonably delayed in asserting the claim, when the
    delay has prejudiced the party against whom relief is sought.”
    Laches, Black’s Law Dictionary (10th ed. 2014). “To successfully
    assert a laches defense, a defendant must establish both that the
    plaintiff unreasonably delayed in bringing an action and that the
    defendant was prejudiced by that delay.” Veysey v. Nelson, 
    2017 UT App 77
    , ¶ 8, 
    397 P.3d 846
     (citation and internal quotation
    marks omitted). In other words, laches is a defense to an action
    brought by a dilatory party, not a basis for affirmative relief.
    ¶23 Here, the denial of Heywood’s license renewal was not
    the result of an action brought by the Division against Heywood.
    Instead, Heywood requested agency action when he submitted
    his license renewal application in 2014. Even assuming that the
    doctrine of laches could bar an administrative agency from
    initiating—or reviving—a disciplinary action where there was
    inexcusable delay and demonstrated prejudice, 2 it would not
    2. This court has previously recognized “the institutional
    reluctance of Utah courts to apply equitable doctrines against
    (continued…)
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    Heywood v. Department of Commerce
    apply in the context of a request for agency action. Regardless of
    the Division’s decision not to pursue disciplinary proceedings, it
    still had an obligation under the statute to consider Heywood’s
    honesty, integrity, truthfulness, reputation, and competency
    before granting his 2014 request for license renewal.
    ¶24 While framed as a timeliness argument, the crux of
    Heywood’s grievance is that it was unfair for the Division to
    base its decision on misconduct that occurred eight years earlier.
    To the extent Heywood is challenging the staleness of the
    evidence, Utah Code section 61-2f-203 places no time limitation
    on the evidence that the Division can consider in assessing the
    “honesty, integrity, truthfulness, reputation, and competency of
    the applicant.” See 
    Utah Code Ann. § 61
    -2f-203(1)(c). Although
    staleness might decrease the probative value of such evidence,
    the bankruptcy court’s findings of misconduct were not viewed
    in isolation but in light of Heywood’s attitude and behavior at
    the time of the Division hearing. As the Presiding Officer noted,
    Heywood did not accept responsibility or recognize the
    seriousness of his misconduct. This bears heavily on whether he
    is currently fit for licensure. Thus, the Division properly
    considered this evidence in reaching its decision.
    (…continued)
    municipal bodies and governmental subdivisions.” Tooele Assocs.
    Ltd. P’ship v. Tooele City, 
    2011 UT App 36
    , ¶ 3, 
    251 P.3d 835
    . Even
    if this were a review from a disciplinary action initiated by the
    Division, it is doubtful that we would apply laches to prevent an
    agency from taking action to protect public welfare. “As a
    general rule, laches or neglect of duty on the part of officers of
    the government is no defense to a suit by it to enforce a public
    right or protect a public interest.” Utah Power & Light Co. v.
    United States, 
    243 U.S. 389
    , 409 (1917).
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    Heywood v. Department of Commerce
    II. Issue Preclusion
    ¶25 Heywood claims that the Division erred as a matter of
    law in giving preclusive effect to the bankruptcy court’s 2009
    Memorandum Decision, which found he had committed fraud in
    connection with the 2006 transaction. “Issue preclusion, often
    referred to as collateral estoppel, prevents relitigation of issues
    already determined in a previous action.” Collins v. Sandy City
    Board of Adjustment, 
    2000 UT App 371
    , ¶ 8, 
    16 P.3d 1251
    . “In
    effect, once a party has had his or her day in court and lost, he or
    she does not get a second chance to prevail on the same issues.”
    Buckner v. Kennard, 
    2004 UT 78
    , ¶ 12, 
    99 P.3d 842
    . A party may be
    precluded from relitigating an issue if four criteria are met:
    (i) the party against whom issue preclusion is
    asserted was a party to or in privity with a party to
    the prior adjudication; (ii) the issue decided in the
    prior adjudication was identical to the one
    presented in the instant action; (iii) the issue in the
    first action was completely, fully, and fairly
    litigated; and (iv) the first suit resulted in a final
    judgment on the merits.
    Gressman v. State, 
    2013 UT 63
    , ¶ 37, 
    323 P.3d 998
     (citation and
    internal quotation marks omitted).
    ¶26 Heywood does not contest the first three criteria of issue
    preclusion. He challenges only the fourth criterion, claiming that
    the 2009 Memorandum Decision is not a final judgment on the
    merits. Heywood argues that the “2009 Memorandum Decision
    was never final, but was rather interlocutory in nature and
    remained subject to appeal.” He also contends that the
    bankruptcy court’s approval of the parties’ settlement agreement
    was “a de facto vacatur” of its 2009 Memorandum Decision, given
    that the language of the settlement released him from “all claims,
    demands, debts, obligations, liabilities, costs, expenses, rights of
    20160289-CA                     10                
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    Heywood v. Department of Commerce
    action, causes of action, or judgments of any kind or character
    whatsoever.”
    ¶27 The fact that Heywood ultimately elected to settle with
    the bankruptcy trustee does not affect the finality of the 2009
    Memorandum Decision. In accordance with persuasive authority
    from other jurisdictions, we hold that a decision that fully
    resolves an issue on the merits, after giving the parties an
    opportunity to be heard, is final for purposes of issue preclusion
    even if the parties agree to a settlement that results in dismissal
    before the entry of final judgment. Even assuming that a prior
    decision vacated as part of a settlement would lose its preclusive
    effect, we conclude that no such vacatur occurred here. As a
    result, the 2009 Memorandum Decision was properly accorded
    preclusive effect on the issue of whether Heywood committed
    fraud.
    A.     A Sufficiently Firm Decision May Have Preclusive Effect
    Even Where the Parties Settled Prior to Entry of Final
    Judgment.
    ¶28 A “final judgment” for purposes of issue preclusion
    “includes any prior adjudication of an issue in another action
    that is determined to be sufficiently firm to be accorded
    conclusive effect.” Restatement (Second) of Judgments § 13
    (1982) (Am. Law Inst. 1982). The prior adjudication of the issue is
    considered sufficiently firm if “[(1)] it was not tentative, [(2)] the
    parties had an opportunity to be heard, and [(3)] there was an
    opportunity for review.” Carpenter v. Young, 
    773 P.2d 561
    , 568
    (Colo. 1989). Here, each of these factors supports the conclusion
    that the 2009 Memorandum Decision was final for purposes of
    precluding relitigation of whether Heywood committed fraud in
    connection with the 2006 transaction.
    ¶29 First, the 2009 Memorandum Decision was not “avowedly
    tentative,” at least not with respect to the issue of Heywood’s
    liability. See id. at 566. “A judgment is upon the merits when it
    20160289-CA                      11               
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    Heywood v. Department of Commerce
    amounts to a declaration of the law as to the respective rights
    and duties of the parties based on . . . facts and evidence upon
    which the rights of recovery depend, irrespective of formal,
    technical, or dilatory objections or contentions.” State v.
    Sommerville, 
    2013 UT App 40
    , ¶ 32, 
    297 P.3d 665
     (omission in
    original) (citation and internal quotation marks omitted). The
    2009 Memorandum Decision is a reasoned opinion setting forth
    detailed findings of fact and conclusions of law that support the
    bankruptcy court’s determination that Heywood committed
    fraud. The bankruptcy court concluded that Heywood’s conduct
    was “intentionally fraudulent or manifested a knowing and
    reckless indifference toward and disregard of [his client’s]
    rights” and that Heywood was jointly and severally liable for the
    full amount of the client’s damages.
    ¶30 The only issue that remained unresolved was a possible
    award of punitive damages. Specifically, the bankruptcy court
    found that “punitive damages may be awarded” and allowed
    the trustee thirty days to request a hearing to determine the
    appropriate amount, noting that “[f]ailure to timely request and
    set the hearing shall be a bar to any award of punitive damages.”
    Given that punitive damages had not yet been determined, the
    bankruptcy court stated:
    This ruling is specifically intended to be
    interlocutory and no judgment will be entered at
    this time. Final judgment will be entered following
    the above-described process and possible hearing
    on punitive damages.
    ¶31 Leaving open the issue of damages did not render the
    bankruptcy court’s decision on liability tentative. See Zdanok v.
    Glidden Co., 
    327 F.2d 944
    , 955 (2d Cir. 1964) (holding that the
    mere fact that the damages had not yet been assessed should not
    deprive a ruling on liability of preclusive effect); Aetna Cas. &
    Surety Co. v. Jeppesen & Co., 
    440 F. Supp. 394
    , 399–405 (D. Nev.
    20160289-CA                   12               
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    Heywood v. Department of Commerce
    1977) (applying collateral estoppel on the fully litigated issue of
    liability even though the prior case settled on the issue of
    damages before entry of final judgment), vacated and remanded on
    other grounds, 
    642 F.2d 339
     (9th Cir. 1981). The ruling was a firm
    declaration of law as to Heywood’s liability for common law
    fraud.
    ¶32 Second, Heywood had an opportunity to be fully heard
    on this issue. During the bankruptcy proceeding, Heywood, who
    was represented by counsel, had the opportunity to present
    testimony and exhibits over the course of a five-day bench trial,
    to fully brief the issues, and to be heard at oral argument prior to
    issuance of the 2009 Memorandum Decision.
    ¶33 Third, the finding of fraud would have been subject to
    appeal upon entry of final judgment, but Heywood chose to
    forego any appeal in favor of settlement. Heywood
    acknowledges that the 2009 Memorandum Decision “remained
    subject to appeal prior to dismissal” of the action and that, “if the
    parties had not settled and instead had proceeded to judgment,
    those judgments likely could have been appealed.” A party’s
    “tactical decision to settle the case rather than seeking the entry
    of judgment and an appeal does not warrant the preclusion of
    collateral estoppel.” Ossman v. Diana Corp., 
    825 F. Supp. 870
    , 876
    (D. Minn. 1993).
    ¶34 While Utah courts have not considered this issue, the
    weight of authority from other jurisdictions supports our
    conclusion that
    [i]f a court reaches a decision on the merits that is
    supported by a reasoned opinion, and the parties
    are fully heard and the issues fully litigated, the
    decision is final for collateral estoppel even if the
    parties enter into a settlement and stipulate to
    dismissal with prejudice prior to the entry of a final
    judgment.
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    Heywood v. Department of Commerce
    American Family Mut. Ins. Co. v. Clancy, No. CV-09-01077-PHX-
    ROS, 
    2011 WL 13077359
    , at *3 (D. Ariz. Mar. 9, 2011); see also
    Ossman, 
    825 F. Supp. at
    878 n.21 (collecting cases). 3 In the present
    case, the 2009 Memorandum Decision would have been subject
    to review had the parties not settled prior to the entry of final
    judgment. We conclude that the fact that Heywood chose to
    waive his right to review by entering into a settlement
    3. See also Bates v. Union Oil Co., 
    944 F.2d 647
    , 651 (9th Cir. 1991)
    (applying collateral estoppel where party assumed the risk that
    the judgment would have preclusive effect by settling and not
    pursuing appeal); Chemetron Corp. v. Business Funds, Inc., 
    682 F.2d 1149
    , 1191–92 (5th Cir. 1982) (applying collateral estoppel
    even though prior case had been settled and dismissed with
    prejudice before the entry of final judgment); Siemens Med. Sys.,
    Inc. v. Nuclear Cardiology Sys., Inc., 
    945 F. Supp. 1421
    , 1436
    (D. Colo. 1996) (applying issue preclusion to partial summary
    judgment where issue was fully litigated but defendant chose to
    forego appeal by settling before final judgment was entered);
    Abbott Labs. v. Thermo Chem, Inc., 
    790 F. Supp. 135
    , 139–40 (W.D.
    Mich. 1991) (applying collateral estoppel even though the parties
    in the prior action reached a settlement agreement); Donovan v.
    United States Postal Service, 
    530 F. Supp. 894
    , 899 (D.D.C. 1981)
    (applying collateral estoppel to rulings that would have been
    subject to appeal had the defendant not settled and stipulated to
    dismissal); Carpenter v. Young, 
    773 P.2d 561
    , 568 (Colo. 1989)
    (applying collateral estoppel to issues decided on summary
    judgment even though the parties ultimately entered into a
    settlement agreement). But see Glidden Co. v. Lumbermens Mutual
    Cas. Co., 
    861 N.E.2d 109
    , 118 (Ohio 2006) (holding that
    interlocutory order could not be given preclusive effect because
    case was ultimately settled and dismissed, given that, under
    Ohio law, “all prior interlocutory orders are dissolved after a
    dismissal”).
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    Heywood v. Department of Commerce
    agreement does not affect the finality of the decision for
    purposes of issue preclusion. See Carpenter, 773 P.2d at 568.
    ¶35 Significantly, no issues remained pending at the time the
    bankruptcy action was dismissed. Heywood cites to cases where
    courts refused to apply collateral estoppel because the
    interlocutory ruling was not necessarily subject to appeal at the
    time of settlement. See, e.g., Continental Airlines, Inc. v. American
    Airlines, Inc., 
    824 F. Supp. 689
    , 706–09 (S.D. Tex. 1993) (refusing
    to apply collateral estoppel where the additional issues
    remained pending at the time of settlement, making it unclear
    whether the interlocutory order would have ultimately been
    essential to any final judgment); Garcia v. General Motors Corp.,
    
    990 P.2d 1069
    , 1072–75 (Ariz. Ct. App. 1999) (refusing to apply
    collateral estoppel to a motion in limine that was not
    independently appealable). Here, by the terms of the 2009
    Memorandum Decision, once the thirty-day period for seeking a
    further hearing had passed, punitive damages were barred. At
    that point, there were no remaining issues and all that was left
    for the bankruptcy court was the ministerial act of entering the
    final judgment. There is no dispute that the bankruptcy court’s
    finding of fraud would have been reviewable had Heywood not
    chosen to forego appeal in favor of settlement.
    ¶36 With respect to the issue of fraud, the 2009 Memorandum
    Decision was not tentative, the parties were fully heard, and
    there was an opportunity for appellate review, which Heywood
    waived by settling prior to the entry of final judgment. As a
    result, Heywood was properly precluded from relitigating the
    issue of fraud.
    B.     The 2009 Memorandum Decision Was Not Vacated.
    ¶37 Heywood argues the 2009 Memorandum Decision can
    have no preclusive effect because it was vacated, but the record
    does not support this contention. Heywood fails to identify any
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    Heywood v. Department of Commerce
    order, docket entry, or other record showing that the bankruptcy
    court vacated its decision.
    ¶38 Heywood suggests that we should view the approval of
    the settlement and subsequent dismissal by the court as “a de
    facto vacatur,” but he provides no authority for that proposition.
    While he argues that “parties are entitled to stipulate to the
    vacatur of a judgment in order to effectuate settlement,” he cites
    no language in the settlement agreement where the parties
    conditioned the settlement on vacatur. More importantly, the
    parties never moved the bankruptcy court to set aside the 2009
    Memorandum Decision, and the court never did so. 4
    ¶39 Nonetheless, Heywood claims that the settlement
    agreement “clearly contemplated vacatur of the 2009
    Memorandum Decision” because it released Heywood from “all
    claims, demands, debts, obligations, liabilities, costs, expenses,
    rights of action, causes of action, or judgments of any kind or
    character whatsoever.” This provision does not condition the
    settlement on vacatur of the 2009 Memorandum Decision nor
    does it purport to limit the preclusive effect of the bankruptcy
    court’s decision.
    4. Some courts have held that issue preclusion may apply even
    where the prior decision was set aside as part of the settlement.
    See, e.g., Bates, 
    944 F.2d at 650
     (holding that a judgment vacated
    as a condition of settlement can still have preclusive effect);
    Chemetron Corp., 
    682 F.2d at
    1191–92 (reasoning that a party who
    makes a tactical decision to risk an adverse decision by fully
    litigating an issue should not be able to avoid offensive collateral
    estoppel by later settling the case). We need not decide whether,
    and under what circumstances, a settlement conditioned on
    vacatur will preclude collateral estoppel because Heywood’s
    settlement was not conditioned on vacatur and the 2009
    Memorandum Decision was never set aside.
    20160289-CA                     16               
    2017 UT App 234
    Heywood v. Department of Commerce
    ¶40 Because the 2009 Memorandum Decision was never
    vacated, the bankruptcy court’s findings that Heywood engaged
    in fraud were entitled to preclusive effect.
    CONCLUSION
    ¶41 On the issues presented for review, we hold that the
    Division’s denial of Heywood’s license renewal was not
    untimely or barred by the doctrine of laches and that the
    bankruptcy court’s finding that Heywood committed fraud
    during the 2006 transaction was entitled to preclusive effect. We
    decline to review the issue of whether the Presiding Officer
    imposed an unreasonably harsh penalty because Heywood has
    failed to challenge the Executive Director’s ruling that the issue
    was inadequately briefed. Accordingly, we decline to disturb the
    Executive Director’s decision.
    20160289-CA                    17              
    2017 UT App 234