Wilson v. Sanders

2019 UT App 126THE UTAH COURT OF APPEALS
GARY WILSON,
Appellee,
v.
ELISABETH W. SANDERS AND HIRAM SANDERS,
Appellants.
Amended Opinion 1
No. 20180048-CA
Filed July 18, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
The Honorable Patrick Corum
No. 160901482
Richard Lee Sanders, Attorney for Appellants
Clinton Justin Cutler, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
HARRIS, Judge:
¶1 After Elizabeth Wilson (Mother) died, her two adult
children ended up in litigation over her estate. Gary Wilson
(Plaintiff) sued his sister Elisabeth W. Sanders (Sister) and her
1. This Amended Opinion replaces the Opinion in Case No.
20180048-CA that was issued on June 27, 2019. After our original
opinion issued, we noted a matter in Paragraph 25 that required
clarification, and we amended that paragraph and added
footnote 4. This Amended Opinion does not alter any of the
conclusions reached in our original opinion.
Wilson v. Sanders
husband Hiram Sanders (collectively, Defendants), seeking an
order invalidating Mother’s most recent testamentary
instrument on the grounds that Defendants had subjected her to
undue influence, and alleging that Defendants had intentionally
inflicted emotional distress upon him. The case was eventually
tried to a jury, which was persuaded by Plaintiff’s arguments
and not only found that Defendants had unduly influenced
Mother, but also awarded Plaintiff $170,000 on his emotional
distress claim, most of which was for punitive damages.
Defendants now appeal, and raise various arguments assailing
the jury’s verdict. We affirm.
BACKGROUND 2
¶2 In December 2000, Plaintiff permanently relocated from
Colorado to Utah to help care for his aging parents, and moved
into their house. Plaintiff paid monthly rent and lived in the
basement, while his parents lived upstairs. Plaintiff was
employed as a school bus driver, which allowed him to spend
time at home caring for his parents and maintaining the house.
Plaintiff testified that, during this time, Defendants—who lived
in Utah—came to the house to visit only once or twice a year,
usually on major holidays. In 2006, Mother created a revocable
trust (First Trust) that listed both Plaintiff and Sister as
beneficiaries, each slated to receive an equal distribution of trust
assets. In 2008, Plaintiff and Sister’s father passed away.
¶3 In February 2015, at the age of eighty-five, Mother fell in a
parking lot and hit her head, requiring emergency cranial
surgery. Following the surgery, Mother had difficulty speaking
2. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc.,
2003 UT 41, ¶ 3, 82 P.3d 1064 (quotation simplified).
20180048-CA 2 2019 UT App 126Wilson v. Sanders
and forming sentences, and even had a hard time recognizing
her children. According to Plaintiff, she seemed “eager to
please” and “very susceptible to suggestion and manipulation.”
¶4 In April 2015, at Defendants’ suggestion, Mother revoked
the First Trust and created a second trust (Second Trust),
changing the identity of the trustee to an attorney selected
by Sister, but not changing the identity of the beneficiaries.
One month later, Mother amended the Second Trust to alter
the percentage of assets her children would receive, changing
the arrangement from fifty-fifty to sixty-forty in favor
of Plaintiff.
¶5 In July 2015, without informing Plaintiff, Defendants took
Mother out of her home and placed her in a hotel room, where
she resided for six weeks. During this time, Defendants did not
allow Mother to make or receive phone calls and Plaintiff was
unable to contact her. While still living in the hotel and out of
contact with Plaintiff, Mother met with the attorney/trustee and
again revised her trust (Third Trust), this time removing Plaintiff
as a beneficiary entirely and leaving everything to Sister and
Sister’s children. At the time, Plaintiff was unaware that Mother
had disinherited him.
¶6 Defendants finally allowed Mother to return to her home
on the condition that Plaintiff vacate the basement apartment.
Plaintiff complied, and Defendants moved into the basement
apartment, a series of events that caused the relationship
between Plaintiff and Defendants to become even more tense.
After they moved into Mother’s house, Defendants continued to
deny Plaintiff visits with Mother, and on multiple occasions they
called the police when Plaintiff tried to visit Mother in her home.
However, on each such occasion Plaintiff was allowed to see
Mother after the officers spoke to her and confirmed that, as far
as she was concerned, Plaintiff was welcome in her home.
20180048-CA 3 2019 UT App 126Wilson v. Sanders
¶7 Also during this time, Plaintiff claimed that his emotional
and mental health went into decline. According to Plaintiff, not
being able to contact Mother caused him “significant emotional
distress” and “affected his work performance in such a way that
his job was in jeopardy.” Indeed, Plaintiff’s supervisor testified
that, on one occasion, Plaintiff appeared so distraught at work
that she feared he could not perform his job safely, so she sent
him home for the day. In addition, his coworker and neighbor
testified that his lighthearted personality disappeared and that
he began to vocalize suicidal thoughts. Plaintiff testified that he
ended up in the hospital on two occasions, and underwent
“numerous therapy sessions” in an effort to restore his mental
health. On one occasion, Plaintiff drew a bullet on a calendar,
indicating the date on which he planned to commit suicide.
Plaintiff’s neighbor was so concerned about Plaintiff that he
called both the police and Defendants to inform them about
Plaintiff’s suicidal comments. When the neighbor told
Defendants about the calendar, Sister remarked, “Wouldn’t that
make things easier?”
¶8 In January 2016, Mother slipped into a coma, but
Defendants did not promptly notify Plaintiff about Mother’s
declining condition; Plaintiff did not learn about her condition
until three days later. Shortly thereafter, Mother passed away.
Plaintiff first heard the news from Sister when he called to check
on Mother. Although Plaintiff was at work only a few minutes
away at the time of Mother’s passing, Defendants did not inform
him when Mother had “only hours to live.” Plaintiff testified
that not being with Mother at the time of her death was
traumatic—something “[t]hat’s going to mess with [him] the rest
of [his] life.”
¶9 After Mother’s passing, Plaintiff discovered that he had
been completely disinherited under the Third Trust. Plaintiff
then filed suit seeking to invalidate the Third Trust on the basis
of undue influence. He also brought a claim against Defendants
20180048-CA 4 2019 UT App 126Wilson v. Sanders
for intentional infliction of emotional distress (IIED). Following a
three-day trial, Defendants’ counsel moved for a directed verdict
as to Plaintiff’s undue influence claim. The trial court denied the
motion and the case was sent to the jury, which found in favor of
Plaintiff and invalidated the Third Trust on the basis of undue
influence. The jury also found in favor of Plaintiff on his IIED
claim, awarding him both non-economic and punitive damages.
The jury found Defendants each separately liable to Plaintiff for
$10,000 in compensatory non-economic damages, and in
addition awarded Plaintiff $150,000—for which Defendants were
jointly and severally liable—in punitive damages.
¶10 Following the trial, Defendants timely filed a motion,
grounded in rule 60 of the Utah Rules of Civil Procedure, to
vacate the judgment. On March 29, 2018, the court entered final
judgment on the verdict, and a few days later, on April 8, 2018,
the trial court issued a written minute entry denying the rule 60
motion. Then, on April 24, 2018, Defendants filed a notice of
appeal (Notice), which states as follows:
The Appeal is taken from the Final Judgment
entered March 29th, 2018, and against orders or
rulings upon motions such that if the Final
Judgment be reversed . . . that necessarily shall be
of same effect on any such irrevocably linked
byproduct of the Judgment.
Defendants now appeal from the trial court’s entry of judgment
on the jury verdict and from its post-judgment denial of their
rule 60 motion.
ISSUES AND STANDARDS OF REVIEW
¶11 Defendants raise five issues for our review. The first two
issues consist of challenges to the sufficiency of the evidence.
20180048-CA 5 2019 UT App 126Wilson v. Sanders
First, Defendants contend that “the jury’s award of damages for
[IIED should] be vacated” because it was not supported by
sufficient evidence. Second, Defendants contend that “the jury’s
award of punitive damages [should] be vacated because it was
not based on sufficient evidence,” and it “exceeds established
limits for punitive damages awards.” When considering an
insufficiency of the evidence claim on appeal, “we do not weigh
the evidence de novo.” Water & Energy Sys. Tech., Inc. v. Keil,
2002 UT 32, ¶ 15, 48 P.3d 888 (quotation simplified). Rather, we
view “the evidence in the light most favorable to the prevailing
party,” Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991),
and we reverse a jury’s verdict only when “the evidence
presented at trial is so lacking that reasonable minds could not
have reached the conclusion that the jury reached,” Harding v.
Bell, 2002 UT 108, ¶ 14, 57 P.3d 1093.
¶12 Third, Defendants contend that the trial court erred in
denying their motion for a directed verdict on Plaintiff’s undue
influence claim. We review a trial court’s decision on a motion
for a directed verdict for correctness, and a trial court may enter
a directed verdict “only if, after looking at the evidence and all
reasonable inferences in a light most favorable to the nonmoving
party,” it “concludes that there is no competent evidence which
would support a verdict in the nonmoving party’s favor.” USA
Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 34, 372 P.3d 629(quotation simplified).
¶13 Fourth, Defendants contend that the trial court erred in
denying their rule 60 motion to vacate the judgment. Ordinarily,
we review the denial of a motion to vacate a judgment for abuse
of discretion. Bodell Constr. Co. v. Robbins, 2014 UT App 203, ¶ 5,
334 P.3d 1004. However, in this case, we lack jurisdiction to
consider the merits of this issue, because Defendants did not
specifically include it in their Notice. Jensen v. Intermountain
Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474; see also Perea v. State,
2017 UT App 67, ¶ 6, 397 P.3d 770 (stating that “a ruling on a
20180048-CA 6 2019 UT App 126Wilson v. Sanders
rule 60(b) motion culminates in a separate, appealable order”
that usually “may not be included in an existing appeal because
the issues raised in the appeal predated the ruling on the rule
60(b) motion” (quotation simplified)).
¶14 Fifth, Defendants contend that the trial court erred “in
permitting inadmissible and prejudicial testimony throughout
the trial.” “We grant a trial court broad discretion to admit or
exclude evidence and will disturb its ruling only for abuse of
discretion.” Robinson v. Taylor, 2015 UT 69, ¶ 8, 356 P.3d 1230(quotation simplified).
¶15 Additionally, pursuant to rule 33 of the Utah Rules of
Appellate Procedure, Plaintiff seeks an award of attorney fees
and costs incurred in defending this appeal on the grounds that
Defendants’ appeal is frivolous or brought for delay.
ANALYSIS
I. Sufficiency of the Evidence
A. Jury’s Award of Damages for IIED
¶16 Defendants first challenge the jury’s award of damages
for IIED, contending that the award should be set aside because
it was not supported by sufficient evidence. We disagree.
¶17 When challenging the sufficiency of the evidence
underlying a jury’s verdict, the party making the claim must
demonstrate “that the [verdict] lack[s] substantial evidentiary
support.” Water & Energy System Tech., Inc. v. Keil, 2002 UT 32,
¶ 15, 48 P.3d 888. Accordingly, the appealing party should
“marshal the evidence in support of the verdict and then
demonstrate that the evidence is insufficient when viewed in the
light most favorable to the verdict.” Chapman v. Uintah County,
20180048-CA 7 2019 UT App 126Wilson v. Sanders
2003 UT App 383, ¶ 31, 81 P.3d 761 (quotation simplified).
Although recent case law dictates that a challenge to the
sufficiency of the evidence will no longer fail solely because of a
“technical deficiency in marshaling,” a party “will almost
certainly fail to carry its burden of persuasion on appeal if it fails
to marshal.” State v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645.
Here, Defendants have “made no attempt to marshal the
evidence in support of the jury[’s] finding of [IIED],” see
Crookston v. Fire Ins. Exch., 817 P.2d 789, 800 (Utah 1991), nor
have they otherwise persuasively demonstrated why the verdict
should be set aside, see Nielsen, 2014 UT 10, ¶¶ 41–42.
¶18 After a three-day trial, the jury found that Defendants had
intentionally inflicted emotional distress on Plaintiff, and
awarded him both compensatory and punitive damages. “In
Utah, a claim for [IIED] is actionable if: (i) the defendant’s
conduct is outrageous and intolerable . . . ; (ii) the defendant
intends to cause . . . emotional distress; (iii) the plaintiff suffers
severe emotional distress; and (iv) the defendant’s conduct
proximately causes the plaintiff’s emotional distress.” Hatch v.
Davis, 2004 UT App 378, ¶ 40, 102 P.3d 774. Here, although the
evidence was certainly conflicting, the record contains evidence
sufficient to support each element of an IIED claim.
¶19 First, there was evidence that Defendants’ conduct was
“outrageous and intolerable.” See id. For example, there was
evidence that it was not until after Mother had suffered a head
injury that Defendants began to take much of an interest in her,
and that, after the injury, Defendants attempted to take control
of Mother’s care by removing her from her home and cutting her
off from Plaintiff. During this period, they refused to allow
Mother to use her phone and they brought about Plaintiff’s
eviction from the home he had been sharing with Mother for the
past fifteen years. After Mother returned home, Defendants
sometimes called the police on Plaintiff when he tried to visit
Mother. But the police reports contain evidence that the calls
20180048-CA 8 2019 UT App 126Wilson v. Sanders
were frivolous and that Plaintiff was not actually a threat to
Mother. And although Plaintiff worked in close proximity to
Mother’s house, he was not able to be with her at the time she
passed, because Defendants did not inform him that she had
“only hours to live.”
¶20 Second, there is evidence that Defendants intended their
actions to cause Plaintiff emotional distress. See id. At trial, both
Defendants admitted to being aware that Plaintiff was
apparently depressed and suicidal, and the jury heard evidence
from which it could reasonably infer that Plaintiff’s depression
stemmed from the turmoil within his family. Furthermore, after
learning that Plaintiff was contemplating suicide, Defendants
remarked to a neighbor that Plaintiff’s suicide would “make
things easier.”
¶21 Third, there was evidence presented to support the
conclusion that Plaintiff did indeed suffer severe emotional
distress. See id. Among other things, Plaintiff was unable to
perform his job safely and was sent home from work; he was
hospitalized and needed multiple therapy sessions; and his
coworkers and close friends observed that he had become
increasingly depressed and suicidal.
¶22 Fourth, the record supports the conclusion that Plaintiff’s
emotional distress was proximately caused by Defendants’
actions. See id. Notably, Plaintiff’s coworkers and friends noticed
that his behavior changed and he became depressed and
potentially suicidal after Defendants began to interfere with his
relationship with Mother.
¶23 In sum, Defendants have not demonstrated a reason for
us to overcome the “healthy dose of deference owed to . . . jury
verdicts.” See Nielsen, 2014 UT 10, ¶ 41. There existed evidence
on both sides of this question, and the jury could readily have
returned a verdict in favor of Defendants on the IIED claim. But
20180048-CA 9 2019 UT App 126Wilson v. Sanders
the jury apparently found Plaintiff’s version of events more
credible and, on these facts, that was its decision to make. See
Carlton v. Brown, 2014 UT 6, ¶ 51, 323 P.3d 571 (“Where
reasonable men may differ, it is for the jury . . . to determine
whether, in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.” (quotation
simplified)). We are therefore unpersuaded that there existed
insufficient evidence to support the jury’s determination that
Defendants intentionally caused Plaintiff emotional distress.
B. Jury’s Award of Punitive Damages
¶24 Defendants next argue that the jury’s award of punitive
damages should be vacated because “it was not based on
sufficient evidence” and it “exceeds established limits for
punitive damages awards.” 3 We disagree. Here, Defendants
3. Defendants also assert that the jury’s punitive damages award
was inappropriate because it held Defendants “jointly and
severally liable for punitive damages.” But Defendants invited
the trial court to adopt a special verdict form that provided only
one “joint and several” line for any punitive damages award,
and therefore any error on this point—if error exists, a
conclusion we stop short of drawing—constitutes “invited
error,” which “preclud[es] appellate review.” See Pratt v. Nelson,
2007 UT 41, ¶ 17, 164 P.3d 366 (quotation simplified); see also
State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (“[A] party
cannot take advantage of an error committed at trial when that
party led the trial court into committing the error.” (quotation
simplified)). During trial, the court reviewed the proposed
special jury verdict form with both parties and, of its own
accord, noted that the form provided for just “one award of
punitive damages” with no provision for “decid[ing what] each
one owes,” and asked whether it needed to “separate this out” to
allow the jury to make clear which defendant would owe what
(continued…)
20180048-CA 10 2019 UT App 126Wilson v. Sanders
have failed to persuade us that there is insufficient evidence to
support the jury’s award of punitive damages. First, Defendants
have “made no attempt to marshal the evidence in support of
the jury[’s] finding of [punitive damages].” See Crookston v. Fire
Ins. Exch., 817 P.2d 789, 800 (Utah 1991). While, as noted, this
failure to marshal no longer merits an automatic default, see State
v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645, Defendants make
no attempt to address the evidence supporting the award, as
outlined above. In short, after reviewing the record, we are
convinced that the punitive damages verdict was supported by
sufficient evidence.
¶25 With regard to excessiveness, the only argument
Defendants make is one grounded in constitutionality, citing our
supreme court’s pronouncement that “ratios exceeding single-
(…continued)
amount of punitive damages. However, both attorneys indicated
that they would prefer to keep just one line for punitive
damages. As we have previously recognized, an “affirmative
representation” that a party has no further objection to a jury
instruction “falls within the ambit of the invited-error doctrine.”
ConocoPhillips Co. v. Utah Dep't of Transp., 2017 UT App 68, ¶ 20,
397 P.3d 772; see also State v. Chaney, 1999 UT App 309, ¶ 55, 989
P.2d 1091 (finding invited error when a defendant objected to
the trial court’s use of a correct jury instruction and later
challenged the substituted erroneous jury instruction on appeal);
State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct. App. 1991) (finding
invited error where a defendant challenged an instruction that
he had submitted to the trial court). Because Defendants’ counsel
was given an opportunity to object to the one-line entry on the
special verdict form for punitive damages and indicated his
assent, any error in the verdict form on this point was invited.
Accordingly, we do not consider this issue further.
20180048-CA 11 2019 UT App 126Wilson v. Sanders
digits . . . mark the outer limits of due process.” See Campbell v.
State Farm Mut. Auto Ins. Co., 2004 UT 34, ¶ 39, 98 P.3d 409. 4
Indeed, in State Farm Mutual Automobile Insurance Co. v. Campbell,
538 U.S. 408 (2003), the United States Supreme Court recognized
that punitive damages awards that do not exceed a single-digit
ratio between punitive and compensatory damages will likely
comport with due process. Id. at 425. Here, the jury awarded
Plaintiff $20,000 in compensatory damages and $150,000 in
punitive damages, a ratio of 7.5 to 1. Such an award therefore
falls within the constitutionally acceptable bounds recognized by
the United States Supreme Court. We therefore reject
Defendants’ arguments to the contrary.
II. Denial of Directed Verdict
¶26 Defendants next contend that the trial court erred in
denying their motion for a directed verdict on Plaintiff’s undue
influence claim. This claim fails for the same reasons articulated
above; namely, Defendants have failed to meet their burden of
persuasion. Our “standard of review of a directed verdict is the
same as that imposed upon a trial court.” Gables at Sterling Village
Homeowners Ass’n, Inc. v. Castlewood-Sterling Village I, LLC, 2018
UT 04, ¶ 21, 417 P.3d 95 (quotation simplified). “A trial court is
4. Defendants make no other argument with regard to the ratio
between the award of compensatory damages and the award of
punitive damages, and specifically raise no argument that the
ratios involved in this award were excessive under the
framework articulated by our supreme court in Crookston v. Fire
Insurance Exchange, 817 P.2d 789 (Utah 1991). Id. at 810 (stating
that “[t]he general rule” is “where the punitives are well below
$100,000, punitive damage awards beyond a 3 to 1 ratio to actual
damages have seldom been upheld,” and that for punitive
damages awards over $100,000 “the acceptable ratio appears
lower”). We therefore do not address any such argument.
20180048-CA 12 2019 UT App 126Wilson v. Sanders
justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in
the non-moving party’s favor.” Id. (quotation simplified).
Defendants have failed to demonstrate that there was “no
competent evidence” to support the jury’s finding that Mother
disinherited Plaintiff while under the undue influence of
Defendants. See id. (quotation simplified). In fact, as discussed
above, there was evidence that Mother amended her trust after
sustaining a head injury, which left her disoriented, and during
the time when Defendants had sequestered Mother in a hotel
where she was cut off from all contact with the outside world.
While a jury could reasonably have reached the opposite
conclusion, and found in favor of Defendants on this point, the
jury’s decision to believe Plaintiff’s version of events over
Defendants’ was not unreasonable and was supported by
competent evidence. The trial court therefore did not err in
denying Defendants’ motion for a directed verdict.
III. Denial of Rule 60 Motion
¶27 Defendants also challenge the trial court’s denial of their
rule 60 motion. But this challenge falls outside the scope of our
jurisdiction because Defendants did not identify this issue in
their Notice. Rule 3(d) of the Utah Rules of Appellate Procedure
requires that a notice of appeal “designate the judgment or
order, or part thereof, appealed from.” Utah R. App. P. 3(d).
Defendants’ Notice, which was filed on April 24, 2018, states that
the “Appeal is taken from the Final Judgment entered March
29th, 2018, and against orders or rulings upon motions” that are
bound up with the final judgment. But the Notice does not
identify the trial court’s later order denying their rule 60 motion.
¶28 Our appellate jurisdiction is limited to considering only
the orders and judgments specified in the notice of appeal. If the
notice fails to identify the specific order sought to be appealed,
20180048-CA 13 2019 UT App 126Wilson v. Sanders
we cannot assume jurisdiction over the appeal. See Jensen v.
Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474(holding that “rule 3(d)’s requirement is jurisdictional” and that
“the object of a notice of appeal is to advise the opposite party
that an appeal has been taken from a specific judgment in a
particular case” (quotation simplified)); see also Pulham v.
Kirsling, 2019 UT 18, ¶ 27 (exercising appellate jurisdiction over
only the three issues specifically referenced in the notice of
appeal). However, our supreme court has recognized “that the
language of rule 3(d) [does] not require a party appealing from
an entire final judgment to specify each interlocutory order of
which the appellant seeks review.” Zions First Nat’l Bank, NA v.
Rocky Mountain Irrigation, Inc., 931 P.2d 142, 144 (Utah 1997)
(quotation simplified). Thus, “when an appeal is taken from a
final judgment, there is no requirement that the notice designate
intermediate orders which are to be raised as issues on appeal.”
U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d
945 (quotation simplified); see also 16A Charles Alan Wright et.
al., Federal Practice & Procedure Jurisdiction § 3949.4 (4th ed. 2019)
(“A notice of appeal that names the final judgment suffices to
support review of all earlier orders that merge in the final
judgment under the general rule that appeal from a final
judgment supports review of all earlier interlocutory orders, at
least if the earlier orders are part of the progression that led up
to the judgment rather than being separate from that
progression.”). Because Defendants referenced the entire final
judgment in their Notice rather than merely discrete parts of it,
see Pulham, 2019 UT 18, ¶¶ 25–27, we have jurisdiction to
consider a challenge to the final judgment itself as well as any
earlier intermediate orders bound up or subsumed in the final
judgment.
¶29 Accordingly, the question we must address is whether the
trial court’s order denying Defendants’ rule 60 motion was
subsumed in the final judgment. Defendants’ Notice states that
20180048-CA 14 2019 UT App 126Wilson v. Sanders
their “[a]ppeal is taken from the Final Judgment entered March
29th, 2018.” But the trial court did not deny the rule 60 motion
until April 8, 2018, more than a week after the entry of the final
judgment. Because they are issued after final judgment, post-
judgment orders are ordinarily not subsumed in the final
judgment, and generally parties must either file a separate notice
of appeal regarding those orders or, if they are entered before
the filing of the notice of appeal, at least specifically mention
them in the notice of appeal being taken from the final judgment.
See Dennett v. Ferber, 2013 UT App 209, ¶ 3, 309 P.3d 313 (per
curiam) (finding that because a “ruling on a rule 60(b) motion
culminates in a separate, appealable order . . . this court lacks
jurisdiction to resolve issues raised in a ruling on a rule 60(b)
motion unless a new notice of appeal has been filed”). Here,
entry of the trial court’s order denying Defendants’ rule 60
motion occurred post-judgment, and Defendants offer no
argument for how such an order could possibly have been
subsumed within the earlier entered final judgment, or been part
of the progression that led to it. Accordingly, because
Defendants did not specifically state, in their Notice, that they
intended to appeal from that order, we lack jurisdiction to
consider an appeal from the order denying the rule 60 motion.
IV. Impermissible and Prejudicial Trial Testimony
¶30 Next, Defendants contend that the trial court erred in
“permitting inadmissible and prejudicial testimony throughout
the trial.” But Defendants failed to object at trial to any
testimony as being “prejudicial,” and therefore did not present
the issue to the trial court “in such a way that the court ha[d] an
opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (“When a party fails to raise and argue an issue in the
trial court, it has failed to preserve the issue, and an appellate
court will not typically reach that issue absent a valid exception
to preservation.”). Accordingly, this issue has not been
preserved for our review. A party that “wishes an appellate
20180048-CA 15 2019 UT App 126Wilson v. Sanders
court to address” an unpreserved issue “must argue that an
exception to preservation applies.” Id. ¶ 27. Here, Defendants do
not argue for the applicability of any particular exception to our
preservation rules. Accordingly, we do not discuss the matter
further. See, e.g., Federated Capital Corp. v. Deutsch, 2018 UT App
118, ¶ 21, 428 P.3d 51 (declining to “reach the merits” of an issue
because it was not preserved for appellate review, and the
appellant did “not assert that an exception to the preservation
rule applies”).
V. Attorney Fees
¶31 Finally, Plaintiff asks us, pursuant to rule 33 of the Utah
Rules of Appellate Procedure, to award him the attorney fees he
has incurred in defending against this appeal. Although we
affirm the judgment in favor of Plaintiff, we deny his request for
attorney fees.
¶32 Pursuant to rule 33, if we determine that a motion or
appeal is “either frivolous or for delay,” we must award
“reasonable attorney fees to the prevailing party.” Utah R. App.
P. 33(a). Although Plaintiff is the prevailing party on appeal, we
cannot conclude that Defendants’ appeal, taken as a whole, was
“frivolous” or intended for “any improper purpose.” See id. R.
33(b) (defining a frivolous appeal as “not grounded in fact, not
warranted by existing law, or not based on a good faith
argument to extend, modify, or reverse existing law,” and an
appeal for delay as “one interposed for any improper purpose
such as to harass, cause needless increase in the cost of litigation,
or gain time that will benefit only the party filing the appeal”);
see also Tobler v. Tobler, 2014 UT App 239, ¶ 47, 337 P.3d 296(holding that “the imposition of rule 33 sanctions is a serious
matter and only to be used in egregious cases, lest the threat of
such sanctions should chill litigants’ rights to appeal lower court
decisions” (quotation simplified)). As such, we conclude that an
award of attorney fees under this rule would be inappropriate.
20180048-CA 16 2019 UT App 126Wilson v. Sanders
CONCLUSION
¶33 For the reasons articulated above, we affirm the ruling of
the trial court in all respects, but decline to award Plaintiff the
attorney fees he incurred in defending the appeal. 5
5. For the reasons set forth herein, we also deny Defendants’
pending Motion for Extraordinary Relief or Other Appropriate
Relief, as well as Defendants’ pending Motion for Summary
Reversal of Clear and Prejudicial Errors.
20180048-CA 17 2019 UT App 126