Martin v. Kristensen

2019 UT App 127THE UTAH COURT OF APPEALS
YVONNE MARTIN,
Appellant,
v.
PETTER KRISTENSEN AND FRANK O. KRISTENSEN,
Appellees.
Opinion
No. 20160265-CA
Filed July 26, 2019
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 084902378
Karthik Nadesan, Attorney for Appellant
R. Stephen Marshall, Cameron J. Cutler, and Kevin
M. Paulsen, Attorneys for Appellees
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 After lengthy court battles on multiple fronts, Yvonne
Martin was awarded $140,285.54 in support payments from her
ex-husband, Petter Kristensen, but was ordered to pay Petter’s 1
father, Frank Kristensen, $900,663.26 for unlawful detainer.
Yvonne appeals from a number of the trial court’s decisions. We
affirm.
1. Because two of the parties share a surname, we refer to each
party by his or her first name, as is our practice in such
situations. No disrespect is intended by the apparent
informality.
Martin v. Kristensen
BACKGROUND
¶2 This appeal stems from a consolidation of four cases: a
divorce case between Yvonne and Petter; an unlawful detainer
case by Frank against Yvonne; a quiet title case by Yvonne
against Frank and Petter; and a fraudulent transfer case by
Yvonne against Frank and Petter. The facts and procedural
history relevant to each are given below.
The Marital Property and Divorce Petition
¶3 Yvonne and Petter were married in 1995. Both before and
during the marriage, they signed marital agreements (the
Marital Agreements) identifying their separate property and
detailing how assets would be divided in the event of a divorce.
As relevant here, the Marital Agreements provide that Yvonne
and Petter did “not intend to share together in the ownership of
any property.”
¶4 Yvonne and Petter lived in a house purchased by Yvonne
in 1999 (the Property). Frank contributed $58,000 to the purchase
price and, in exchange, received an “undivided one-half
interest” in the Property from Yvonne. In 2003, Yvonne
refinanced the Property, without informing Frank, for
approximately $80,000. When Petter learned of the refinance, he
was concerned because it increased the mortgage on the
Property and eliminated the equity in the home to which he
believed Frank was entitled. So in early 2004, Petter proposed a
solution: Frank would pay off the now-$260,000 mortgage in
exchange for full ownership of the Property, and Yvonne would
keep the $80,000 she received from the refinance. Yvonne
accepted the proposal and executed a quitclaim deed in favor of
Frank, though Yvonne and Petter continued to live in the
Property. In 2008, approximately four years later, Yvonne
petitioned for divorce.
20160265-CA 2 2019 UT App 127Martin v. Kristensen
The Unlawful Detainer and Quiet Title Proceedings
¶5 Around one month after filing for divorce, Yvonne was
served with a notice to vacate the Property. After Yvonne failed
to do so, Frank sued for unlawful detainer. The complaint
requested treble damages “from and including the 7th day of
July, 2008, until possession of the rented premises is restored to
[Frank].” In response, Yvonne filed a quiet title action against
Frank and Petter, contending that “she was improperly coerced
into executing [the] quitclaim deed to Frank” and that the deed
was therefore void. The unlawful detainer and quiet title actions
were then consolidated. 2
The Temporary Orders
¶6 In April and July 2009, Judge Faust, the trial
judge presiding over the divorce proceedings, entered orders
stating that Yvonne was “to have temporary use and
possession” of the Property. Yvonne had earlier attempted to
add Frank as a party in the divorce case, and Frank
himself entered a limited appearance in the case to protect
his interests in the Property. The domestic relations
commissioner assigned to the case, however, recommended
that Frank be dismissed as a party. When the court entered
its orders granting temporary possession of the Property to
Yvonne, Frank was not listed in the caption or served with the
orders.
The Unlawful Detainer Trial
¶7 In May 2012, Yvonne was still living in the Property, and
the unlawful detainer and quiet title actions proceeded to
2. Unless otherwise specified, these combined actions are
referred to in this opinion as “unlawful detainer.”
20160265-CA 3 2019 UT App 127Martin v. Kristensen
trial before Judge Shaughnessy. 3 The quiet title portion was tried
to a jury, while the unlawful detainer portion was tried to the
bench.
¶8 At trial, Yvonne objected to or sought to admit, as
relevant here, three types of evidence or argument. First, Yvonne
objected to argument and testimony that allegedly conflicted
with the terms of the Marital Agreements. For example, in his
opening statement, Frank stated that Yvonne was trying to get
“something for nothing.” Yvonne moved for a mistrial, asserting
that the “opening statements that were given directly contradict
what the pre-marital agreement says.” The court denied the
motion because “statements made by counsel in openings are
not evidence.” Later, during cross-examination of Yvonne,
Yvonne’s counsel objected to a line of questioning regarding
whether Petter ever paid money into Yvonne’s account so that
she could make mortgage payments. Yvonne testified that under
the Marital Agreements, “everything [that] comes out of [her]
account[] is [her] money and whatever he puts in there is [her]
money.” Her counsel objected, arguing that the “whole line of
questioning [was] irrelevant” because “the agreement says that
what goes into her account is hers.” The court overruled the
objection.
¶9 Second, Yvonne objected to alleged hearsay statements
concerning conversations between Petter and Frank. Among
other statements, Petter testified that he “asked [his] dad for
help” in paying off the mortgage on the Property. Yvonne
moved to strike this testimony as hearsay, but the court
overruled, saying that “the declarant is in Court now talking
about a statement that he made.”
3. The cases were originally set for trial in December 2010. But
after three requests for a continuance, each made by Yvonne,
trial was not held until May 2012.
20160265-CA 4 2019 UT App 127Martin v. Kristensen
¶10 Finally, Yvonne sought to introduce evidence concerning
a second deed between Frank and Petter executed a few weeks
after Yvonne quitclaimed the Property to Frank. Frank objected,
arguing that the deed was an estate-planning mechanism and
not a transfer of the Property. The court was concerned about
“the risk of confusion to the jury” on “a collateral issue” and
sustained the objection.
¶11 Yvonne also objected to a jury instruction requested by
Frank and Petter on ratification. That instruction provided,
The power of a party to avoid a quit claim deed for
duress is lost if, after the circumstances that made
the contract voidable have ceased to exist, she
manifests to the other party her intention to affirm
it or acts with respect to anything that she has
received in a manner inconsistent with
disaffirmance.
In ratification cases where undue influence tainted
the execution of a . . . contract, it is presumed that
the undue influence also tainted the ratification if
the causative elements giving rise to the initial
undue influence are such that the undue influence
was likely to have continued. If the undue
influence has once been exerted it will be
presumed to follow and taint every transaction
between the parties thereafter.
Yvonne objected to the instruction because it did not specify
“who bears the burden of proof,” ratification was not “pleaded
as an affirmative defense,” and there was “no Utah case law
authority for” the instruction. The trial court overruled the
objection and agreed to give the instruction.
20160265-CA 5 2019 UT App 127Martin v. Kristensen
¶12 After deliberations, the jury returned a verdict for Frank,
finding that Yvonne did not “execute the quitclaim deed in favor
of Frank Kristensen while under duress.”
¶13 Trial then turned to the unlawful detainer portion of the
case. To prove his damages, Frank called an expert witness (First
Expert) to testify on the rental value of the Property. Yvonne
objected because First Expert was “not timely disclosed” and did
not provide a “report or anything to accompany or suggest the
foundation for his expertise.” The trial court, however, allowed
First Expert to testify. First Expert testified that he compared
“rental information” in the area on similar houses to estimate “a
fair rental value” of the Property. Based on his comparison, he
evaluated the Property’s rental value as $2,200 to $2,400 a
month. On cross-examination, Yvonne elicited that First Expert’s
evaluation was based only on 2012 rental figures; he did not “do
an analysis of rental value as of” 2008 through 2011. Yvonne did
not call her own expert witness.
¶14 At the close of trial, and based on the jury’s finding that
Yvonne had not executed the quitclaim deed under duress, the
court concluded that Frank was the owner of the Property and
that Yvonne had been in unlawful detainer since July 2008. The
court accepted the “low end of what [First Expert] . . . offered, in
terms of the fair market value” and found it to be $2,200 a
month, or $72.32 a day. The court then found that Yvonne had
been in unlawful detainer for 1,425 days and, after trebling the
damages under the unlawful detainer statute, computed
damages of $309,168. The court also ordered costs and attorney
fees, as allowed under the statute.
The Preliminary Injunction
¶15 After losing at trial, Yvonne sought, and received, a
preliminary injunction in the divorce proceedings—now
presided over by Judge Kennedy—enjoining Petter, as power of
20160265-CA 6 2019 UT App 127Martin v. Kristensen
attorney for Frank, from “interfering with [Yvonne’s] right to
remain in the [Property].”
The Fraudulent Transfer Proceedings
¶16 While Yvonne continued to live in the Property, she
initiated a new lawsuit against Petter and Frank for, among
other things, fraudulent transfer. In her complaint, she alleged
that Petter owed her money from support orders entered in the
divorce proceedings and that, in order to avoid his obligations,
Petter “transferred funds and assets belonging to him to other
individuals, without receiving any equivalent value in exchange
for the transfers.” She then detailed several alleged transfers.
¶17 The case proceeded, and Frank and Petter moved for
summary judgment. They argued that in each of the three
transfers from Petter to Frank identified by Yvonne, “Frank
provided a reasonably equivalent value in exchange.”
¶18 In opposition to their motion, Yvonne argued that there
was a factual dispute over “whether Petter received value for the
transfers.” She asserted that Frank and Petter had not provided
sufficient proof to that effect and that a trial was “necessary to
enable the Court to conduct proper credibility determinations.”
¶19 The court concluded, however, that Yvonne bore the
burden of proof on her claim and that Frank and Petter only had
to “come forward with some evidence” to support their motion.
The court then went through each fact in the motion and found
that “what remain[ed]” after Yvonne’s objections were “nearly
forty paragraphs of largely undisputed facts.” The court agreed
with Frank and Petter that there were only three “potentially
fraudulent conveyances” concerning Frank and Petter, and it
stated that the “undisputed facts show[ed] that there was
reasonably equivalent value exchanged.” It therefore granted the
motion for summary judgment, concluding that Yvonne “failed
20160265-CA 7 2019 UT App 127Martin v. Kristensen
to provide evidence to support or sustain her fraudulent
conveyance claim[].”
The Consolidated Cases
¶20 In March 2013—before Judge Shaughnessy had ruled on
the summary judgment motion on fraudulent transfer—the
divorce, unlawful detainer, and fraudulent transfer cases were
consolidated. Judge Kennedy now presided over the actions, and
Yvonne filed a motion for a new trial in the unlawful detainer
portion of the consolidated cases. Yvonne argued that at trial the
court “ruled erroneously on evidentiary matters” and
“improperly instructed the jury on ratification.” She also argued
that the court “incorrectly concluded that Yvonne unlawfully
detained [the Property], as she was in lawful possession
pursuant to court order.” Finally, she asserted that the court
“improperly allowed expert evidence of rental value, as Frank’s
expert was not timely disclosed and did not provide an expert
report.” The trial court granted the motion in full.
¶21 The consolidated cases, however, were subsequently
reassigned to Judge Shaughnessy, who had previously presided
over the unlawful detainer trial. 4 Frank and Petter then filed a
motion to vacate the order granting Yvonne a new trial, and the
court partially granted the motion to vacate. The court upheld its
earlier decisions regarding the evidentiary matters and
ratification instruction—vacating Judge Kennedy’s order
granting Yvonne’s motion for a new trial based on errors related
to those matters—but it granted a new trial on the issue of
damages. In doing so, the court stated that it wanted “to make
sure that . . . there is not an issue on appeal when this case goes
4. Judge Shaughnessy also ruled on Frank and Petter’s motion
for summary judgment in the fraudulent transfer case after it
had been consolidated. See supra ¶ 19.
20160265-CA 8 2019 UT App 127Martin v. Kristensen
up with respect to the disclosure of any expert testimony.” It
then ordered Frank and Yvonne, if she so chose to have an
expert, to “serve a disclosure (1) identifying [the] expert,
(2) providing a copy of the expert’s CV, (3) [providing] a brief
summary of [the expert’s] anticipated testimony and
(4) [providing] the basis for that testimony.” Yvonne was also
given the opportunity to “informally interview” Frank’s expert
or “depose the expert.”
¶22 At the new trial on damages, Frank called a new expert
(Second Expert) to testify regarding the Property’s fair rental
value. Second Expert testified concerning the relevant rental
values of the Property from 2008 through 2015, which ranged
from $2,100 to $3,200 per month. 5 Those rental figures for the
relevant time period amounted to $224,534.10. Because Yvonne
did not provide “an alternative basis for determining” the rental
value, the court found that Second Expert’s figures were “the
most reasonable determinations of fair market rental value.”
After trebling the amount of damages to $673,602.30, and adding
costs of $5,810.21 and attorney fees of $221,250.75, the court
ordered Yvonne to pay Frank a total of $900,663.26.
Attorney Fees
¶23 In March 2016, after nearly eight years of litigation in the
above matters, the trial court entered a decree of divorce and
determined that Yvonne was entitled to $140,285.54 in support
payments under the Marital Agreements.
¶24 Based on that award, Yvonne sought her attorney fees in
defending her rights under the Marital Agreements, which
contain an attorney fees provision. The court denied Yvonne her
attorney fees on three grounds. First, the court concluded that
5. Yvonne ultimately remained in possession of the Property
until October 2015.
20160265-CA 9 2019 UT App 127Martin v. Kristensen
“the terms of the attorneys’ fee provision in the [Marital
Agreements] do not obviously apply to the dispute in this case.”
It reasoned that “both parties relied on the terms of the [Marital
Agreements] to advance their respective positions,” not to
“invalidate [a] portion or all of” the agreements. (Cleaned up.)
Second, the court concluded that even if the provision applied,
Yvonne did not prevail in defending her rights. Although she
was awarded $1,000 a month under the Marital Agreements, the
court noted that Yvonne sought “substantially” more than that
and therefore “lost on [her] claim.” Finally, the court stated that
“the issues in the divorce portion of this case were simple and
straightforward” and that “Yvonne represented herself at [the
divorce] trial.” And though Yvonne was represented by counsel
“over collateral issues,” the court stated that “Yvonne and her
attorneys made no serious effort to bring to conclusion the few,
simple issues that needed to be decided.” So, the court reasoned,
“even if Yvonne was entitled to any attorneys’ fees, it would
only be for the trial and time spent by attorneys preparing for
the issues tried.” The court could not “identify any meaningful
time spent by counsel on the issues that ultimately were tried”
and therefore concluded that “an award of fees would be
inappropriate.”
¶25 Yvonne appeals.
ISSUES AND STANDARDS OF REVIEW
¶26 Yvonne raises six issues on appeal. First, she contends
that she cannot be liable for unlawful detainer when temporary
orders entered in the divorce proceedings expressly authorized
her to remain in possession of the Property during the pendency
of those proceedings. This contention presents mixed questions
of law and fact. Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153,
¶ 14, 305 P.3d 196. “Matters of statutory construction are
questions of law that are reviewed for correctness,” while
“questions of fact are reviewed under the clearly erroneous
20160265-CA 10 2019 UT App 127Martin v. Kristensen
standard, with deference given to the trial court.” Id. (cleaned
up). “The trial court’s application of law to the facts is reviewed
for abuse of discretion.” Id. (cleaned up).
¶27 Second, Yvonne contends that the trial court erred in
granting a new trial on damages in the unlawful detainer action.
“It is well settled that, as a general matter, the trial court has
broad discretion to grant or deny a motion for a new trial,”
including granting a new trial on the issue of damages. Smith v.
Fairfax Realty, Inc., 2003 UT 41, ¶ 25, 82 P.3d 1064 (cleaned up).
We will reverse the trial court’s decision “only if there is no
reasonable basis for the decision.” Id. (cleaned up).
¶28 Third, Yvonne contends that the trial court erred in
instructing the jury on ratification in the unlawful detainer and
quiet title proceedings. “Claims of erroneous jury instructions
present questions of law that we review for correctness.” Miller
v. Utah Dep’t of Transp., 2012 UT 54, ¶ 42, 285 P.3d 1208 (cleaned
up). But an error in the jury instructions will result in reversal
only if “the error is harmful and prejudicial.” Gorostieta v.
Parkinson, 2000 UT 99, ¶ 15, 17 P.3d 1110.
¶29 Fourth, Yvonne contends that the trial court committed
cumulative error in the unlawful detainer proceedings by
allowing and excluding certain evidence. “We review the trial
court’s resolution of the legal questions underlying the
admissibility of evidence for correctness and the trial court’s
decision to admit or exclude evidence for an abuse of
discretion.” Beckman v. Cybertary Franchising LLC, 2018 UT App
47, ¶ 22, 424 P.3d 1016. To apply the cumulative error doctrine,
we “must determine that (1) an error occurred, (2) the error,
standing alone, has a conceivable potential for harm, and (3) the
cumulative effect of all the potentially harmful errors
undermines [our] confidence in the outcome.” State v. Martinez-
Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.
20160265-CA 11 2019 UT App 127Martin v. Kristensen
¶30 Fifth, Yvonne contends that the trial court incorrectly
granted summary judgment to Frank and Petter on Yvonne’s
fraudulent transfer claim. We review the trial court’s “ultimate
grant or denial of summary judgment for correctness” and view
“the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party.” Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (cleaned up).
¶31 Finally, Yvonne contends that she was entitled to attorney
fees in the divorce proceedings under the Marital Agreements.
“Whether attorney fees are recoverable in an action is a question
of law, which we review for correctness.” Express Recovery
Services Inc. v. Olson, 2017 UT App 71, ¶ 5, 397 P.3d 792 (cleaned
up). “We review the trial court’s determination as to who was
the prevailing party under an abuse of discretion standard.” Id.(cleaned up).
ANALYSIS
I. Unlawful Detainer
¶32 We first consider whether Yvonne is guilty of unlawful
detainer when, approximately ten months after the unlawful
detainer action was filed, the court in the divorce proceedings
ordered that she could possess the Property while the divorce
was pending. We therefore examine how the unlawful detainer
statute operates and then address Yvonne’s arguments in light of
the statute.
¶33 Under Utah’s unlawful detainer statute, a tenant at will 6 is
“guilty of an unlawful detainer if the tenant . . . remains in
6. A tenancy at will is a “tenancy in which the tenant holds
possession with the landlord’s consent but without fixed terms
(as for duration or rent).” Tenancy at will, Black’s Law Dictionary
(continued…)
20160265-CA 12 2019 UT App 127Martin v. Kristensen
possession of the premises after the expiration of a notice [to quit
the premises] of not less than five calendar days.” Utah Code
Ann. § 78B-6-802(1)(b)(ii) (LexisNexis 2008). 7 Once a defendant is
found to be in unlawful detainer, the “jury or the court . . . shall
also assess the damages resulting to the plaintiff from” the
unlawful detainer. Id. § 78B-6-811(2)(b). Subsection (3) of section
78B-6-811 requires that such damages be trebled. Id.
§ 78B-6-811(3) (“The judgment shall be entered against the
defendant for the rent, for three times the amount of the
damages assessed under Subsections (2)(a) through (2)(e), and
for reasonable attorney fees.”); see also Aris Vision Inst., Inc. v.
Wasatch Prop. Mgmt., Inc., 2006 UT 45, ¶ 23, 143 P.3d 278 (“[W]e
hold that all damages directly and proximately resulting from
[unlawful detainer] are subject to the requirement that they be
trebled.”). Damages for unlawful detainer include lost rental
value. Forrester v. Cook, 292 P. 206, 214 (Utah 1930), overruled on
other grounds as recognized by P.H. Inv. v. Oliver, 818 P.2d 1018,
1020 (Utah 1991).
¶34 As our supreme court has explained, the unlawful
detainer statute operates as “a mechanism for quickly and
clearly resolving conflicts over lawful possession of property
between landowners and tenants.” Osguthorpe v. Wolf Mountain
Resorts, LC, 2010 UT 29, ¶ 22, 232 P.3d 999; see also Bichler v. DEI
Sys., Inc., 2009 UT 63, ¶ 29, 220 P.3d 1203 (stating that “one of the
primary purposes of the unlawful detainer statute is to provide a
(…continued)
(10th ed. 2014). “Such a tenancy may be terminated by either
party upon fair notice.” Id.
7. We apply the version of the code that was in effect at the time
the unlawful detainer complaint was filed. The code has since
been amended, though the provisions we cite are substantially
the same.
20160265-CA 13 2019 UT App 127Martin v. Kristensen
speedy resolution on the issue of possession”). It does this in
part through the “severe remedy” of treble damages, see
Osguthorpe, 2010 UT 29, ¶ 23 (cleaned up); see also Utah Code
Ann. § 78B-6-811(3), but also through expedited proceedings, see
id. § 78B-6-810. These provisions are “evidence of a strong desire
by the legislature to create a mechanism pursuant to which
owners can be restored to possession of their property.”
Osguthorpe, 2010 UT 29, ¶ 23.
¶35 Here, the court found that Frank has been the titled
owner of the Property since June 23, 2004. He served Yvonne
with a notice to quit the premises on July 1, 2008, giving her five
days to vacate. But Yvonne, claiming that she was the owner of
the Property, remained in possession until October 2015. That is,
she “remain[ed] in possession of the premises after the
expiration of a notice [to quit] of not less than five calendar
days.” See Utah Code Ann. § 78B-6-802(1)(b)(ii). And because
Frank, not Yvonne, was the true owner, Yvonne was “guilty of
an unlawful detainer” beginning on July 6, 2008, under the plain
terms of the statute. See id. Therefore, Yvonne is liable for
damages during the time of her unlawful detainer, including
treble damages for Frank’s lost rental value. See id. § 78B-6-
811(3).
¶36 To resist this conclusion, Yvonne asserts that, “[a]s a
matter of law, an occupant of real property cannot be considered
to be in unlawful detention of property when she is there
pursuant to court order.” And because the court in the divorce
proceedings “had entered an order authorizing her to remain in
possession of [the Property] during the pendency of [those
proceedings],” she contends that she was not detaining property
unlawfully. We disagree for three reasons.
¶37 First, we are not persuaded that the divorce court’s orders
granting Yvonne temporary possession of the Property
transformed her possession from unlawful to lawful. Yvonne did
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not obtain an order granting her temporary possession until the
end of April 2009. Frank sued for unlawful detainer, however, in
August 2008 and requested treble damages “from and including
the 7th day of July, 2008 until possession of the rented premises
is restored.” Thus, the orders on which Yvonne’s arguments
depend did not even exist until after she had unlawfully
remained on the Property for nearly ten months. But Yvonne
does not account for that time or explain how the temporary
orders she acquired from the divorce court, which did not
purport to adjudicate or alter her unlawful detainer status, both
retroactively and prospectively excused her unlawful
possession. 8
¶38 Second, we are unpersuaded that the temporary orders
in the divorce case definitively adjudicated Frank’s rights
relative to the Property. Yvonne argues that the temporary
orders were binding on Frank and that she is therefore
excused from paying him damages for unlawful detainer. But
the court in the unlawful detainer trial found that Frank was
“not a party to the divorce case” and, in fact, “could not be made
a party to the divorce case.” The court also noted, without
8. In Ute-Cal Land Development v. Intermountain Stock Exchange,
628 P.2d 1278 (Utah 1981), the supreme court held that a writ of
attachment, which prohibited the lessee from leaving the
premises, did not excuse the lessee from paying treble damages
when the writ of attachment was served after the lessor’s notice
to quit. Id. at 1282–83. There, the lessee was found guilty of
unlawful detainer because the lessee could have vacated “when
the notice to quit was first served” but did not. Id. at 1282.
Similarly, the court orders here, which Yvonne claims excuse her
from paying damages, were entered after Frank’s notice to quit.
Though Yvonne was given temporary possession of the
Property, she was free to vacate at any time. If the lessee in Ute-
Cal was guilty of unlawful detainer, Yvonne must be as well.
20160265-CA 15 2019 UT App 127Martin v. Kristensen
objection, that “everyone agrees” that he was not actually a
party.9 Thus, Yvonne’s possession during the divorce
proceedings may have been lawful vis-à-vis her husband, but
that does not mean she lawfully possessed as between herself (a
tenant) and Frank (the landowner). See Osguthorpe, 2010 UT 29,
¶ 22.
¶39 And even if the temporary orders bound Frank, Yvonne
does not explain how that would excuse her from liability
for damages for unlawful detainer. Yvonne cites Iota LLC v.
Davco Management Co., 2016 UT App 231, 391 P.3d 239, in
which the court held that “the orderly and expeditious
administration of justice by the courts requires that an
order issued by a court with jurisdiction over the subject
matter and person must be obeyed by the parties until it is
reversed by orderly and proper proceedings.” Id. ¶ 16 (emphasis
added) (cleaned up). But this does not answer how an order
granting temporary possession of property in one action
affects the relief another party may receive in a different
proceeding. The court in Iota spoke only in terms of compliance
with an order, and here, Petter (and Frank for that matter)
complied with the divorce court’s orders granting Yvonne
temporary possession of the Property. Therefore, Iota does not
help Yvonne.
9. Until this appeal, Yvonne did not contend that Frank was a
party to the temporary orders. Even in her motion for a new
trial, Yvonne asserted that “Frank was added as a party” to the
divorce proceedings but “was subsequently removed as a
party.” Thus, the argument that Yvonne is not liable for
unlawful detainer because Frank was bound by the temporary
orders was not preserved for appeal. See Blanch v. Farrell, 2018
UT App 172, ¶ 17, 436 P.3d 285 (“To preserve an issue, the
appellant must present it to the district court in such a way that
the court has an opportunity to rule on it.” (cleaned up)).
20160265-CA 16 2019 UT App 127Martin v. Kristensen
¶40 Third, as recognized by the trial court, the “unlawful
detainer statute itself contemplates that a court may enter an
order allowing a person to remain in possession of property, but
notwithstanding such an order, the statute still provides for
treble damages against that person if that person is ultimately
found to be in unlawful detainer.” (Citing Utah Code Ann.
§§ 78B-6-810(2)(b)(i), 78B-6-811(3).) In other words, the statute
allows for a determination of a right to possess; it does not
purport to eliminate damages if the person given temporary
occupancy is ultimately deemed to be without rights to the
property. Yvonne relies on a concurrence in Bichler v. DEI
Systems, Inc., 2009 UT 63, 220 P.3d 1203, to argue otherwise, but
Bichler is silent about whether a party given temporary
possession can ultimately be held liable for unlawful detainer
damages. 10 See id. ¶ 41 (Nehring, J., concurring).
¶41 Yvonne argues that this reading of the statute is unfair. It
is not, and the facts of this case illustrate why. As the trial court
recognized, the unlawful detainer statute contains a “significant
statutory safety valve that is designed to protect against
excessive damages.” Specifically, the statute requires that “the
court shall expedite the proceedings” and “shall begin the trial
within 60 days after the day on which the complaint is served,
unless the parties agree otherwise.” Utah Code Ann.
§ 78B-6-810(1). Yvonne, however, made no attempt to resolve the
10. Our reading of the statute is consistent with the use of
preliminary injunctions. When a court preliminarily enjoins a
party from taking an action, it does not purport to immunize the
protected party from paying any damages that may occur if the
injunction was wrongfully entered. See Mountain States Tel.
& Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1262
(Utah 1984) (“An injunction is wrongfully issued and recovery
on the bond is permissible if it is finally determined that the
applicant was not entitled to the injunction.”).
20160265-CA 17 2019 UT App 127Martin v. Kristensen
issue of possession expeditiously. Yvonne was entitled under the
statute to a hearing within 60 days of being served with Frank’s
complaint, see id., but instead chose to move for three
continuances, which pushed the date for trial from December
2010 to May 2012. Even after being found liable for unlawful
detainer, Yvonne continued to reside at the Property for another
three years, more than doubling the amount of damages. The
trial court considered the “procedural history and the
machinations of this case” to find an “unreasonable delay in the
resolution of this case that takes a relatively manageable amount
of damages,” i.e., approximately 60 days of rental value, “to an
enormous amount of damages,” i.e., approximately 2,653 days of
rental value. We see no error in that conclusion.
¶42 In sum, Yvonne proceeded at her own risk when she
gambled a treble damage award on winning her quiet title action
and subsequently on vacating the trial court’s decision in the
unlawful detainer action. We affirm the trial court’s award of
unlawful detainer damages to Frank.
II. New Trial on Damages
¶43 A trial court may grant a new trial “to any party on any
issue” if, among other reasons, there was an “irregularity in the
proceedings” or an “error in law.” Utah R. Civ. P. 59(a)(1), (7).
Yvonne contends that the trial court abused its discretion when
it “permitted [First Expert] to testify” and “compounded this
error by sua sponte granting a new trial on damages that
permitted Frank to not only disclose a new expert but rectify the
deficiencies in his previous expert’s testimony.” We reject this
contention.
¶44 For starters, the trial court did not “sua sponte grant[] a
new trial on damages.” Yvonne moved for a new trial, including
on damages, after being found liable for unlawful detainer, and
she requested that the court “hold such further proceedings as
are necessary to accomplish substantial justice in this case.” The
20160265-CA 18 2019 UT App 127Martin v. Kristensen
trial court granted Yvonne’s motion in its entirety, and Frank
and Petter later succeeded in narrowing the new trial’s scope to
the issue of damages. Thus, the court did not order a new trial
on its own motion; it ordered the new trial, and defined its
scope, based on the parties’ motions.
¶45 Further, Yvonne’s argument concerning First Expert’s
ability to testify at the original trial despite not being disclosed
misses the mark. In granting a new trial on damages, the court
stated that it was “going to make sure that . . . there is not an
issue on appeal when this case goes up with respect to the
disclosure of any expert testimony.” It specifically required
Frank to disclose his expert and provide a summary of the
expert’s opinion. The court also ensured that Yvonne would be
given the opportunity to “informally interview” or “depose”
Second Expert. Thus, by granting a new trial, the trial court
attempted to resolve Yvonne’s objections to First Expert’s
testimony in the original trial by giving her the ability to
interview Second Expert and the opportunity to call an expert of
her own. “It is well settled that . . . the trial court has broad
discretion to grant or deny a motion for a new trial,” and we see
no abuse of that broad discretion here. See Smith v. Fairfax Realty,
Inc., 2003 UT 41, ¶ 25, 82 P.3d 1064 (cleaned up).
III. Ratification Instruction
¶46 A trial court’s ruling on a jury instruction, though
reviewed for correctness, “does not constitute reversible error . . .
unless the error is harmful and prejudicial.” Gorostieta v.
Parkinson, 2000 UT 99, ¶ 15, 17 P.3d 1110. Yvonne contends that
the trial court erroneously instructed the jury on ratification in
the unlawful detainer trial, but she makes only conclusory
statements regarding the alleged error’s harmfulness. For
example, she asserts that she “was not given the opportunity to
take countermeasures” against the instruction and that she was
20160265-CA 19 2019 UT App 127Martin v. Kristensen
“substantially prejudiced by the untimely submission of the jury
instruction.”
¶47 A court “must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.” Utah R. Civ. P. 61. “[A]n error is harmful,” thus
requiring reversal, “only if the likelihood of a different outcome
is sufficiently high as to undermine our confidence in the
verdict.” See Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah
1991). It is the appellant’s burden to demonstrate that an error
affected the outcome. Steffensen v. Smith’s Mgmt. Corp., 820 P.2d
482, 489 (Utah Ct. App. 1991), aff’d, 862 P.2d 1342 (Utah 1993); see
also Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 24, 330 P.3d
727. And in determining whether an error is harmful, we
consider, in context, “the totality of the evidence and
proceedings.” Avalos, 2014 UT App 156, ¶ 24.
¶48 Without addressing the merits of the ratification
instruction, we conclude that Yvonne has not shown prejudice
from the instruction. She has not demonstrated, in light of the
entire evidentiary landscape, how a different instruction would
have changed the outcome of the trial. Besides conclusory
statements that she was “substantially prejudiced,” she does not
describe how the jury instruction affected her theory of the case.
She argues that she “was not given the opportunity to take
countermeasures” but never explains what those
countermeasures would have been or how they would have
been successful. She instead asserts that “it cannot be known”
whether the jury improperly relied on the ratification
instruction. But it is her burden to tip the scale toward a
“reasonable likelihood” of a different result, and she has not met
that burden. See Steffensen, 820 P.2d at 489 (cleaned up).
IV. Cumulative Error
¶49 We also conclude that Yvonne has not demonstrated
cumulative error in relation to the court’s handling of certain
20160265-CA 20 2019 UT App 127Martin v. Kristensen
evidentiary matters. She argues on appeal, as she did in her
motion for a new trial, that the court improperly allowed
evidence and argument undermining the Marital Agreements,
improperly allowed hearsay testimony from Petter, and
erroneously excluded evidence of a second deed between Frank
and Petter. These errors, in Yvonne’s view, constitute cumulative
error requiring reversal.
¶50 We have recognized that a trial court “has broad
discretion to admit or exclude evidence.” Anderson v. Larry H.
Miller Commc’ns Corp., 2015 UT App 134, ¶ 30, 351 P.3d 832(cleaned up). And as noted above, an appellant “must shoulder
the burden of demonstrating both error by the district court and
prejudice, i.e., that there is a reasonable likelihood that a
different result would have been reached absent the error.” Id.(cleaned up). Sometimes, an appellant may show prejudice
“when a single error may not constitute grounds for reversal,
but many errors, when taken collectively, do.” State v. Martinez-
Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). But
under the cumulative error doctrine, not “all errors accumulate.”
Id. ¶ 40. Rather, “the doctrine will not be applied when claims
are found on appeal to not constitute error, or the errors are
found to be so minor as to result in no harm.” Id. (cleaned up).
¶51 Yvonne has not shown that the trial court’s evidentiary
decisions adversely impacted the outcome of the case. She
asserts that “while the district court instructed the jury not to
consider the fairness of the [Marital Agreements], this
instruction was not sufficient to cure the prejudice.” (Citing
Loofbourow v. Utah Light & Ry., 94 P. 981, 983 (Utah 1908).) But
she does not explain how the testimony and argument she
identifies harmed her case or why the jury instruction was
insufficient to remedy any harm. See Avalos v. TL Custom, LLC,
2014 UT App 156, ¶ 25, 330 P.3d 727 (“In some instances, jury
instructions may cure any error resulting from the improper
admission of certain evidence.”). The primary issue at trial was
20160265-CA 21 2019 UT App 127Martin v. Kristensen
whether Yvonne executed the quitclaim deed under duress; the
jury was not tasked with interpreting the Marital Agreements or
determining who owned the funds placed in Yvonne’s bank
account. Thus, we are not convinced that the alleged error in
allowing evidence to undermine the Marital Agreements
negatively affected the proceedings.
¶52 As to the other alleged errors, Yvonne does not
meaningfully address the trial court’s decision. The court
already determined that, even assuming there were errors, there
was no prejudice flowing from its evidentiary decisions. In
vacating the previous order granting Yvonne a new trial, the
court observed that the alleged hearsay testimony was
“peripheral and did not have any meaningful effect on the jury’s
verdict.” As for the second deed between Frank and Petter, the
court found that it was “a collateral issue” and that “the risk of
confusion to the jury [was] too great.” By not even challenging
those findings, Yvonne has given us no reason to doubt the trial
court’s evidentiary decisions. See Utah Physicians for a Healthy
Env’t v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT
49, ¶¶ 18–19, 391 P.3d 148 (discussing an appellant’s burden of
persuasion to “actually address the alleged errors” in the lower
court’s decision).
¶53 Thus, without individually identifying harm resulting
from these alleged errors, Yvonne cannot show that the errors
accumulate for purposes of the cumulative error doctrine. See
Martinez-Castellanos, 2018 UT 46, ¶ 40. We therefore will not
reverse on that basis.
V. Summary Judgment on Fraudulent Transfer
¶54 Summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”
Utah R. Civ. P. 56(a). To successfully oppose a motion for
summary judgment, the nonmovant has the duty “to analyze the
20160265-CA 22 2019 UT App 127Martin v. Kristensen
evidence” and “show that it create[s] a genuine issue for trial.”
Stichting Mayflower Mountain Fonds v. United Park City Mines Co.,
2017 UT 42, ¶ 42, 424 P.3d 72. A court is not obligated “to look
beyond [the nonmovant’s] bald statements to identify
supporting evidence buried somewhere in the record.” Id. ¶ 43.
The trial court here determined there were only three
“potentially fraudulent conveyances” and concluded that the
“undisputed facts show[ed] that there was reasonably
equivalent value exchanged,” which defeated Yvonne’s
fraudulent transfer claim.
¶55 Yvonne contends that “the district court erred in granting
summary judgment on [her] fraudulent transfer” claim against
Frank and Petter. But Yvonne does not engage with the elements
of a fraudulent transfer claim or with the court’s specific
determination that there were no fraudulent transfers because
the undisputed facts show that reasonably equivalent value was
exchanged for the only potentially fraudulent conveyances she
identified.
¶56 Rule 24 of the Utah Rules of Appellate Procedure requires
a party to “explain, with reasoned analysis supported by
citations to legal authority and the record, why the party should
prevail on appeal.” Utah R. App. P. 24(a)(8). “An issue is
inadequately briefed if the argument merely contains bald
citations to authority without development of that authority and
reasoned analysis based on that authority.” Bank of Am. v.
Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (cleaned up). The duty to
develop an argument belongs to the party; it “may not simply
point toward a pile of sand and expect the court to build a
castle.” See Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248.
There is no “bright-line rule determining when a brief is
inadequate,” but “an appellant who fails to adequately brief an
issue will almost certainly fail to carry its burden of persuasion
on appeal.” Adamson, 2017 UT 2, ¶ 12 (cleaned up).
20160265-CA 23 2019 UT App 127Martin v. Kristensen
¶57 Yvonne cites no authority in the portion of her opening
brief alleging error in the trial court’s summary judgment
decision. She does not engage with her burden under rule 56 of
the Utah Rules of Civil Procedure or the elements of a fraudulent
transfer claim. She instead insists that “when all reasonable
inferences are viewed in the light most favorable to [her],” there
is sufficient evidence to create a disputed issue of fact on the
merits of her claim. But without explaining the substantive law,
Yvonne cannot show that her alleged factual disputes are
material. See Utah R. Civ. P. 56(a) (requiring no genuine dispute
as to “any material fact” (emphasis added)); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (“As to materiality, the
substantive law will identify which facts are material.”). Thus,
Yvonne has not met her burden of persuasion. Adamson, 2017 UT
2, ¶ 12.
VI. Attorney Fees
¶58 Attorney fees are generally recoverable only if authorized
by statute or contract. Gregory & Swapp, PLLC v. Kranendonk, 2018
UT 36, ¶ 47, 424 P.3d 897. Yvonne contends that she is entitled to
attorney fees under the Marital Agreements and that the trial
court erred in not awarding them to her. She does not, however,
address all the bases for the trial court’s decision to deny her
fees.
¶59 “Our rules of appellate procedure place the burden on the
appellant to identify and brief any asserted grounds for reversal
of the decision below.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424
P.3d 12. Accordingly, “we will not reverse a ruling of the district
court that rests on independent alternative grounds where the
appellant challenges [less than all] those grounds.” Id. (cleaned
up).
¶60 The trial court gave three reasons for its decision denying
Yvonne her attorney fees. First, it concluded that “the terms of
the attorneys’ fee provision in the [Marital Agreements] do not
20160265-CA 24 2019 UT App 127Martin v. Kristensen
obviously apply to the dispute in this case.” Second, it concluded
that Yvonne was not a prevailing party. Third, it concluded that
Yvonne was not entitled to attorney fees because she had
represented herself at trial. See Total Restoration, Inc. v. Merritt,
2014 UT App 258, ¶ 16 n.1, 338 P.3d 836 (explaining that pro se
litigants are not entitled to attorney fees). Yvonne only briefly
addresses the first two reasons; she does not address the third
reason until her reply brief.
¶61 Yvonne’s failure to engage with the court’s reasoning
until the reply brief is fatal. Kendall, 2017 UT 38, ¶ 13. Both the
supreme court and this court “have consistently held that issues
raised by an appellant in the reply brief that were not presented
in the opening brief are considered waived and will not be
considered.” Id. (cleaned up); see Blanch v. Farrell, 2018 UT App
172, ¶ 31 n.6, 436 P.3d 285. Because Yvonne did not challenge all
the independent bases for the trial court’s decision to deny
attorney fees in her opening brief, we will not reverse the trial
court on this issue. See Kendall, 2017 UT 38, ¶¶ 12–13.
CONCLUSION
¶62 We conclude that none of the asserted errors Yvonne
identifies require reversal. First, nothing in the unlawful detainer
statute excuses Yvonne from paying damages to Frank based on
the temporary orders issued approximately ten months after she
was asked to quit the premises. Second, the trial court did not
abuse its discretion in granting a new trial on damages in
response to the parties’ briefing. Third, Yvonne has not shown
prejudice from the trial court’s decision to give a ratification
instruction. Fourth, Yvonne has not shown cumulative error in
the trial court’s handling of certain evidentiary matters because
none of the individual errors she points to conceivably affected
the outcome of the unlawful detainer trial. Fifth, Yvonne has not
met her burden of persuasion on her claim that the trial court
mistakenly granted summary judgment on her fraudulent
20160265-CA 25 2019 UT App 127Martin v. Kristensen
transfer claim. Finally, Yvonne has not addressed all the bases
for the trial court’s denial of her motion for attorney fees and has
accordingly placed that issue beyond appellate review. We
therefore affirm.
20160265-CA 26 2019 UT App 127