Ameritech College Holdings v. Aiken

2025 UT App 6

THE UTAH COURT OF APPEALS

AMERITECH COLLEGE HOLDINGS, LLC; AMERITECH COLLEGE
OPERATIONS, LLC; AND AMERITECH COLLEGE, LLC,
Appellants and Cross-appellees,
v.
JULIE AIKEN AND DELL LOY HANSEN,
Appellees and Cross-appellants.

Opinion
No. 20220595-CA
Filed January 16, 2025

Third District Court, Salt Lake Department
The Honorable Kent R. Holmberg
No. 180908670

Matthew L. Lalli, David G. Barker, Ben T. Welch,
Cameron J. Cutler, Mikayla A. Irvin, James E.
Magleby, and Jennifer Fraser Parrish, Attorneys for
Appellants and Cross-appellees
Troy L. Booher, Erin B. Hull, Beth E. Kennedy,
Steven C. Smith, Kipp S. Muir, Stephen C. Biggs,
Tyler M. Hawkins, and Caroline A. Olsen, Attorneys
for Appellees and Cross-appellants

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 Ameritech College, LLC (the College) and several related
entities (collectively, Ameritech) 1 sued Julie Aiken and Dell Loy

1. The corporate entities include Ameritech College, LLC;
Ameritech College Holdings, LLC; and Ameritech College
Operations, LLC. In the briefing, the parties typically referred to
(continued…)
Ameritech College v. Aiken

Hansen for their roles in certain management decisions and
financial transactions. At trial, a jury determined that Ameritech
should prevail on various theories of liability, but it also found
that Ameritech had not proven any damages. Ameritech filed
post-trial motions—for a new trial and for sanctions—which were
denied by the district court. On appeal, Ameritech asserts that the
district court exceeded its discretion by denying its request for a
new trial based on defense counsel’s repeated violations of
various orders restricting the use of certain evidence. In the
alternative, Ameritech argues that the district court exceeded its
discretion by not holding the defense in contempt for those same
alleged violations, and Ameritech further argues that the court
should have awarded Ameritech its full amount of requested
damages as a sanction. For the reasons set forth below, we see no
abuse of discretion on either front. We accordingly affirm.

BACKGROUND

Ameritech’s Financial Woes

¶2 Ameritech is a private college that offers degrees and
training in nursing and other healthcare related fields. In 2006,
William Jones acquired an ownership interest in Ameritech. A
short time after acquiring that interest, Jones began acting as
Ameritech’s operating “manager.” During the course of Jones’s
management, Ameritech issued debt to various lenders, including

these entities collectively as Ameritech, and we’ll do the same
unless individual identification is necessary. We also note that in
2022, Ameritech rebranded as Joyce University of Nursing and
Health Sciences. See Ameritech College Is Now Joyce University!,
Joyce Univ. of Nursing and Health Scis.,
https://www.joyce.edu/about/ameritech-is-now-joyce/ [https://pe
rma.cc/5ED9-LQ3F]. Because the events at issue in this appeal
occurred before the rebranding, we’ll refer to it as Ameritech
throughout this opinion.

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both Main Street Capital Corporation (Main Street) and Wasatch
Ameritech Holdings (Wasatch), an entity owned by Hansen.

¶3 In June 2014, Jones appointed Aiken as interim CEO of the
College (she had previously been the Nursing Program Director).
At the time, Ameritech was experiencing financial difficulties,
and those difficulties were significant enough that the United
States Department of Education sent Ameritech a “stop pay
letter.” In that letter, the Department of Education informed
Ameritech that its students, 65% of whom relied on Title IV
federal financial aid, would no longer be eligible to receive federal
financial aid unless Ameritech posted a letter of credit for $5.7
million (the Letter of Credit) by December 17, 2015. 2

¶4 In an effort to obtain enough funds to post the Letter of
Credit, Jones began negotiating with Main Street, Wasatch, and a
set of other investors (collectively, the Lending Group). By
December 10, 2015, Ameritech and the Lending Group had agreed
on the “big terms” of a deal, which included a large loan and
capital infusion by the Lending Group in exchange for 66%
ownership and 100% control of Ameritech. But Jones ultimately
decided to not agree to this deal because, while the agreement
would have included a buyback provision that would entitle
Jones to repurchase his ownership and control positions in the
future, Jones also wanted “consent rights,” meaning the ability to
prevent the Lending Group from using its control to later
eliminate the buyback provision and effectively prevent him from
regaining control of Ameritech.

¶5 With no deal reached and the deadline fast approaching for
posting the Letter of Credit, Ameritech underwent a change in

2. There is some ambiguity in the record as to the exact date in
December by which the Letter of Credit needed to be posted, but
it is clear enough that many involved considered December 17 to
be the operative deadline.

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control, which Jones later described as a “corporate takeover” (the
Takeover) and which he asserted was “orchestrated” by Aiken,
Hansen, and the Lending Group. Without delving too deep into
the particulars here, the Lending Group essentially purchased a
controlling equity stake in Ameritech in exchange for $5.15
million (the Capital Contribution), which reduced Jones’s
controlling stake to a minority position, and the Lending Group
also loaned Ameritech an additional $556,695 (the Loan). With the
benefit of these additional funds, Ameritech was able to post the
Letter of Credit and the College’s students were able to continue
receiving federal financial aid.

¶6 As part of the Takeover, a new operating agreement went
into place, and it specifically detailed the terms whereby
Ameritech could buy back the Lending Group’s shares and allow
Jones to regain control of Ameritech (the Redemption Rights).
Those terms required Ameritech to exercise the Redemption
Rights, if at all, on or before September 30, 2017, pay the Lending
Group the original cost of the shares plus 18% interest, and pay
off other outstanding debts in full. In September 2017, Ameritech
exercised the Redemption Rights, paying more than $16 million
in redemption and transaction costs.

Lawsuit and Trial

¶7 In 2018, with Jones again in control, Ameritech initiated the
current lawsuit against Aiken, and Hansen was later added as a
defendant in an amended complaint. The amended complaint
alleged that while helping to orchestrate the Takeover, Aiken had
improperly shared Ameritech’s confidential information with
Hansen and others involved in the Lending Group while she was
Ameritech’s Interim CEO and while the Lending Group was
negotiating to give money to Ameritech (and thereby acquire a
controlling interest in it). Based on these allegations, Ameritech
pleaded several causes of action against Aiken, mostly stemming
from her alleged violations of her fiduciary duties to Ameritech,

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and Ameritech also sued Hansen for his alleged role in these same
events. As damages, Ameritech sought over $10 million, mostly
made up of the interest associated with repurchasing the Lending
Group’s equity stake and paying off the Loan and “costs
associated with legal and other professional assistance for the
[r]edemption.”

¶8 Just before trial, Ameritech filed a motion in limine—
commonly referred to by the parties throughout the ensuing
litigation and on appeal as Motion in Limine 7—in which it asked
the district court to limit the use of certain information at trial
about the money advanced to Ameritech by the Lending Group.
In this motion, Ameritech acknowledged that the Capital
Contribution and the Loan were “part of the factual background
to the issues in dispute,” and Ameritech did not dispute that
evidence of these amounts could be presented to the jury as
“background information.” But Ameritech nevertheless argued
that evidence that these amounts equaled the amount of the Letter
of Credit or that the Department of Education had subsequently
released the Letter of Credit funds to Ameritech would be
irrelevant or unduly prejudicial.

¶9 Aiken and Hansen opposed Motion in Limine 7, arguing
that “[e]vidence of how the funds were used is relevant to several
issues, including whether or not [Ameritech] suffered any injury,
the amount of any damages [Ameritech] may recover, and the
issue of punitive damages.” Aiken and Hansen also argued that,
in order to fully understand the dealings between the parties, the
jury needed to hear as background that the $5.7 million advanced
by the Lending Group (i.e., $5.15 million for the Capital
Contribution plus $556,695 for the Loan) was used to fund the
Letter of Credit and that the Department of Education had
released that money back to Ameritech.

¶10 Because the district court was still awaiting Ameritech’s
reply memorandum on this issue, the court did not definitively

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rule on Motion in Limine 7 before trial. Instead, in a memorandum
decision disposing of several pre-trial motions, the court indicated
that it was “inclined” to limit the evidence regarding the $5.7
million to “factual background evidence.”

¶11 On October 6, 2021—the first day of what proved to be a
15-day trial—the district court discussed Motion in Limine 7 with
the parties to ensure that it understood the positions of both sides.
After hearing additional arguments, the court indicated that it
would again defer ruling on it. But when Aiken and Hansen’s
attorney (Defense Counsel) 3 indicated that he intended to discuss
matters implicated by Motion in Limine 7 in his opening
statement later that day, the district court agreed to give the
parties additional guidance. Specifically, Defense Counsel
informed the court that he wanted to “tell the jury” that when
Aiken agreed to allow the Capital Contribution and the Loan to
be advanced to Ameritech, “it was intended to post the letter of
credit to keep the college open”—that this was Aiken’s “state of
mind.” Defense Counsel also said that he wanted to discuss the
Redemption Rights and how the terms of that transaction tied
back to the amount of the original Capital Contribution.

¶12 In response, the court outlined what it considered to be
admissible background facts: namely, that the Capital
Contribution was made by the Lending Group, that “the college
was in crisis and needed the letter of credit,” and evidence about
Aiken’s “intention in playing a part in that.” Turning to the
Redemption Rights, the parties then had a long discussion with

3. Aiken and Hansen mounted a joint defense. And while they
were represented by four attorneys, most of the in-court
appearances were handled by a single attorney. As will be
discussed at length below, the issues raised on appeal are centered
in large part on the conduct of this attorney. For narrative clarity,
we’ll refer to this attorney with the singular Defense Counsel
moving forward.

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the court about whether the defense could connect the cost of
exercising the Redemption Rights to the Capital Contribution.
After initially agreeing that it would be proper to mention that the
amount needed to exercise the Redemption Rights was tied to the
Capital Contribution, the court changed its mind, stating that it
would allow discussion of how the Redemption Rights were
“computed” (which was the original cost of the shares plus 18%
interest) but that it would not permit the defense to “tether” the
Redemption Rights to “when those contributions were made or
how they were made.”

¶13 During Defense Counsel’s opening statement, he made
several references to the fact that the College was in “serious
trouble,” making an analogy to a “sinking ship.” Twice, Defense
Counsel explicitly tied the infusion of $5.7 million to Ameritech
(under Aiken’s leadership at the time) posting the Letter of Credit.
In discussing the Redemption Rights, Defense Counsel told jurors
that “there was a formula in the Operating Agreement that said
to get out, all you have to pay is the amount of the outstanding
loan and that capital account with an internal rate of return.” He
also said at one point that “the amount paid was the amount that
was owed.”

¶14 Ameritech’s counsel made several objections during
Defense Counsel’s opening statement, but none of them related to
the court’s preliminary guidance on Motion in Limine 7 (which,
again, was not yet definitively decided).

¶15 On October 11, a day when trial was not held, the court
issued a written ruling granting Motion in Limine 7. In this ruling,
the court “confirm[ed] its initial inclination to limit the evidence”
regarding the Capital Contribution and Loan “to factual
background evidence.” It then explained:

The Court rejects [Aiken and Hansen’s] argument
that they should not be precluded from offering
evidence that these funds were used to post the

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[Letter of Credit] or that [Ameritech] ultimately
retained the funds. The Court carefully considered
but was unpersuaded by [Aiken and Hansen’s]
argument that such evidence goes to whether
[Ameritech] suffered any injury, the amount of their
recoverable damages and the issue of punitive
damages. Instead, the Court agrees with
[Ameritech] that beyond mere background
information, further evidence or argument
regarding the use of the funds does not bear on
[Ameritech’s] causes of action or claims for
damages.

This was the full extent of the court’s instructions. Of some note,
the court did not explicitly mention the Redemption Rights in this
ruling, nor did it explain with any specificity the parameters of
what it considered to be permissible “factual background
evidence.”

¶16 On October 14, the sixth day of trial, Aiken and Hansen
filed a motion asking the court to reconsider its ruling on Motion
in Limine 7. Aiken and Hansen argued that evidence about how
the Letter of Credit was funded, how the Capital Contribution
benefited Ameritech, and how the exercise of the Redemption
Rights related to the Capital Contribution was “some of the most
relevant evidence in this case on the fact and amount of damages.”
The district court did not immediately rule on this motion, and
the trial moved forward.

¶17 During trial, both sides presented extensive documentary
evidence and witness testimony. This included testimony from
Jones, who began testifying before the motion to reconsider was
filed, continued testifying after it had been filed, and finished
testifying before it was ruled on. Defense Counsel’s cross-
examination of Jones frequently discussed matters relevant to the

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various issues implicated by Motion in Limine 7. The following
examples are emblematic of how those exchanges proceeded.

• Defense Counsel asked Jones if the Loan related to “the
amount that was advanced by the lender to post the
letter of credit,” which led to an objection from
Ameritech’s counsel and a sidebar. After returning
from the sidebar, Defense Counsel asked Jones, “[T]hat
amount, $556,695, which came in as a loan, and
$5,150,000, which came in as a Class B capital
contribution, totaled the amount of the letter of credit,
correct?” When Ameritech’s counsel again objected, the
district court overruled the objection.

• Defense Counsel referred to an exhibit that showed the
Redemption Rights “payoff schedule,” after which he
asked Jones if one of the figures referred to “the equity
which had been advanced by the lending group.”
Ameritech’s counsel objected based on Motion in
Limine 7, which was sustained. Defense Counsel then
rephrased his question, asking, “The bottom part [of the
payoff schedule] is the equity—identified as equity that
had been advanced in the amount of $5,150,000;
correct?” Ameritech’s counsel again objected, which led
to a sidebar. Following the sidebar, Defense Counsel
asked Jones, “This is—the $5,150,000 was the amount
contributed by the lending group on or about
December 17, 2015, to the best of your knowledge?”
Ameritech’s counsel again objected based on Motion in
Limine 7, but the objection was overruled.

• Defense Counsel started to ask Jones, “And in this
redemption notice, you indicated that you were going
to pay back the $5,150,000—.” Ameritech’s counsel
objected mid-question, and the objection was
sustained. Defense Counsel then asked, “So you gave

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notice that you were exercising your redemption rights
to purchase the Class B participating shares or
membership units held by the lender group; correct?”
Ameritech’s counsel again objected, but this objection
was overruled.

¶18 As this questioning of Jones continued, Defense Counsel
asked Jones, “You don’t deny that the money was contributed by
the lenders in that amount on or about December 17, 2015;
correct?” Ameritech’s counsel objected and the district court
sustained the objection and struck the question. Defense Counsel
then asked Jones, “You admit, do you not, that the lenders made
a capital contribution of that amount on or about December 17,
2015?” Ameritech’s counsel again objected, and the district court
sustained that objection and struck the question. Defense
Counsel’s next question was a reworded version of the prior two.
The court sustained an objection to this question, after which it
called a recess. During that recess, the district court observed that,
in its view, Defense Counsel had been “tethering” the amounts of
the Capital Contribution to the amount required for redemption
since the beginning of trial. The court further observed, “And it
has been relatively consistent. And I understand you feel
passionate about it and that you feel that the Court’s rulings are
wrong . . . . But during the legal portion of this case in front of the
jury, they’re not to be tethered.” Defense Counsel responded that
he had “tried to be true to the written ruling” on Motion in Limine
7, but he then said he thought that ruling needed further
“clarification.” Defense Counsel explained that, in his view, the
October 11 ruling on Motion in Limine 7 did not say anything
about evidence related to the Redemption Rights, which is what
several of the sustained objections had been about. The court
stated that it intended the October 11 ruling to apply more
broadly to include any tethering of the Capital Contribution to the
Redemption Rights. The court then vetted Defense Counsel’s
remaining questions for Jones before the trial proceeded that day,

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and there were no further objections based on Motion in Limine 7
during the remainder of the questioning of Jones.

¶19 On October 20, which was the tenth day of trial, the district
court issued a decision (the October 20 Decision) denying Aiken
and Hansen’s motion to reconsider the October 11 ruling on
Motion in Limine 7. In the October 20 Decision, the court went to
much greater lengths than it previously had in explaining what
was and was not admissible. First, the court addressed tethering
between the Capital Contribution and the Redemption Rights, a
subject that had been discussed in the tentative ruling issued on
October 6 but had been unaddressed in its October 11 written
ruling. It explained that Defense Counsel was mistakenly
“cast[ing] the Capital Contribution and the subsequent exercise of
the Redemption Right[s] as something akin to the repayment of
principal under a loan, where the result is a net zero economic
loss.” In the court’s view, “the true nature of the Capital
Contribution” was as an investment that “became the property of
the College and lost its character” as resources belonging to the
Lending Group once transferred. The court accordingly stated
that it saw “no basis for [Defense Counsel] to tether the Capital
Contribution . . . to the amount paid in connection with” exercise
of the Redemption Rights. The court then discussed the use of
evidence about any relationship between the Capital
Contribution and the Letter of Credit. It commented that “the
evidence related to the Capital Contribution and the use of these
funds for the purposes of posting the Letter of Credit has been
limited as required by the Court’s previous rulings on this point.”
And while acknowledging that Defense Counsel had made
“multiple attempts to expand the use of this evidence,” the court
noted that it had sustained many objections and would also issue
a limiting instruction to the jury to mitigate any improprieties that
had already occurred.

¶20 After the court issued this decision, Defense Counsel asked
only one more question for which the district court sustained an

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objection based on Motion in Limine 7. The question was directed
at Hansen, with Defense Counsel asking him to report whether
the $5.7 million had been “paid back at some point.” The district
court sustained Ameritech’s counsel’s objection, Defense Counsel
withdrew his question, and the answer Hansen had already given
was stricken.

¶21 At the close of trial, the jury was given instructions, one of
which was the limiting instruction that the district court alluded
to in the October 20 Decision. That instruction stated: “During this
case you may have heard reference to [the Capital Contribution]
as well as [the Loan], totaling approximately $5.7M. This
information is for factual background only. You may not consider
this information for purposes of assessing liability, legal defenses,
or in calculating any damages award.” During closing arguments,
Defense Counsel discussed the Loan, the Capital Contribution,
the Letter of Credit, and the Redemption Rights in various ways.
As will be discussed in more detail in our Analysis below,
Ameritech’s counsel did not object to any of those references.

¶22 After deliberating, the jury issued its verdict. Through a
special verdict form, the jury found that Aiken had breached her
fiduciary duties and engaged in fraudulent non-disclosure,
negligent misrepresentation, and tortious interference, and that
Aiken and Hansen had engaged in a civil conspiracy. But for each
cause of action, the jury also found that Ameritech had not
established causation between Aiken’s and Hansen’s conduct and
the alleged damages.

Post-Trial Motions

¶23 After the verdict, Ameritech filed a motion requesting
either (1) a new trial on damages pursuant to rule 59(a)(1) or (2) a
ruling holding Aiken and Hansen in contempt for Defense
Counsel’s conduct and awarding sanctions of more than $10
million. As foundation for both requests, Ameritech claimed that

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Defense Counsel had committed “repeated” and “deliberate”
violations of the court’s rulings on Motion in Limine 7.

¶24 After receiving written opposition from Aiken and Hansen
and holding argument on the motion, the district court denied
both requests.

¶25 Commenting on the issues that were at the heart of both
requests—i.e., Defense Counsel’s alleged violations of the rulings
relating to Motion in Limine 7—the court observed that there had
been “an evolution and expansion” in its own rulings. The court
further observed that “it may initially have been difficult to draw
the line between permissible ‘factual background evidence’ . . .
and impermissible tethering.” The court then expressed its view
that it was the October 20 Decision, “together with verbal
directives, sustained objections and sidebar conferences,” that
ultimately “delineated the boundaries regarding the $5.7 million
contribution” and “provided clear notice to counsel of what
constituted a violation going forward.” Given what it saw as its
own lack of clarity before October 20, the court ruled that “no
violation of the in limine rulings had occurred” prior to October
20, and it then observed that “nearly two-thirds” of the trial had
already been completed as of that point.

¶26 Turning to the motion for a new trial, the court said that,
“[h]aving presided over the trial, and upon careful review of the
record,” it thought “the isolated instances of violations of its in
limine order after October 20 did not prejudice [Ameritech] or
come close to depriving [it] of a fair trial.” In the court’s view, the
violations “viewed in the context of the entire trial record . . . were
harmless.” Explaining this conclusion, the court opined that
“there was nothing inherently prejudicial about the evidence of
the $5.7 million contribution or its tethering” to the Letter of
Credit or the Redemption Rights “such that prejudice can be
presumed,” because “the fact of the $5.7 million contribution was
permissible background information necessary for the jury to

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understand the case.” The court expressed its view that Ameritech
had “exaggerated the relative importance and magnitude of
[D]efense [C]ounsel’s conduct as it related to references to the
prohibited ‘tethering’ of the $5.7 million contribution.” And in the
court’s opinion, any prejudice that did result was mitigated
because the court had taken “swift action to address potential
issues by ruling on objections throughout trial, and ultimately, by
giving the limiting instruction requested by” Ameritech.

¶27 The court specifically rejected Ameritech’s contention that
“the only reasonable explanation for the jury finding multiple
breaches, but no damages, [was] [D]efense [C]ounsel’s
misconduct.” Instead, the court pointed out that “the jury
repeatedly answered in the negative when asked about
causation,” and the court said that it was persuaded that “the jury
simply rejected [Ameritech’s] theory and it had nothing to do
with tethering or any misconduct.” Taking all of this together, the
court concluded that Ameritech had not established that it “did
not receive a fair trial” and that Ameritech had not convinced the
court that “the jury would have reached a different verdict absent
the few improper references concerning the $5.7 million
contribution.”

¶28 In denying the request for contempt and sanctions, the
court recognized that there were some “problematic exchanges”
that occurred “after” the October 20 Decision. But the court said
that, “having carefully reviewed the record,” and in light of “the
broader context,” it was convinced that these were “isolated
incidents that did not constitute the type of violation to support a
finding of contempt.”

ISSUES AND STANDARD OF REVIEW

¶29 Ameritech appeals the district court’s denial of its motion
for either a new trial on damages or instead a contempt ruling and
sanctions. As further explained below, we review both issues for

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an abuse of discretion. See Smith v. Volkswagen SouthTowne, Inc.,
2022 UT 29, ¶ 40, 513 P.3d 729 (stating that we generally “apply
an abuse of discretion standard in reviewing a district court’s
decision to grant or deny a new trial” (quotation simplified)); LD
III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (“An order
relating to contempt of court is a matter that rests within the
sound discretion of the district court. We accordingly review the
sanctions imposed by the district court for an abuse of that
discretion.” (quotation simplified)).

ANALYSIS

I. Motion for a New Trial

¶30 Ameritech first argues that the district court abused its
discretion by denying Ameritech’s motion for a new trial on
damages. We disagree.

¶31 Ameritech’s new trial motion was filed pursuant to rule
59(a)(1) of the Utah Rules of Civil Procedure. We’ve previously
held that “there are two aspects to a court’s decision-making
process in ruling on a motion for new trial, and there are
differences in the manner in which we review each aspect.” Clarke
v. Clarke, 2023 UT App 160, ¶ 22, 542 P.3d 935 (quotation
simplified). “First, a trial court must determine that there exists a
problem that may require a retrial.” Id. (quotation simplified); see
also Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 31, 502 P.3d
320 (recognizing that a court must first determine whether there
exists “an error of law, say, or a trial impropriety” that satisfies
one of the grounds set forth in rule 59). Our review of a trial
court’s ruling on this first step changes somewhat depending on
the nature of the ruling—if the ruling rested on a “factual
determination,” it is reviewed for an abuse of discretion, but if it
was based on a “legal error[],” the ruling is reviewed for
correctness. Clarke, 2023 UT App 160, ¶ 22 (quotation simplified).

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¶32 “Second, after determining that an error or impropriety of
some kind exists, a trial court must determine whether the
identified errors or improprieties are significant enough to
warrant a retrial.” Id. (quotation simplified). This determination is
limited in some measure by rule 61 of the Utah Rules of Civil
Procedure and the question of whether the error at issue was
prejudicial. See Peterson, 2021 UT App 128, ¶ 32; see also Ivie v.
Richardson, 336 P.2d 781, 787 (Utah 1959) (“The errors must be real
and substantial and such as may reasonably be supposed would
affect the result.”). And in the case of an impropriety covered by
rule 59(a)(1), the prejudice component is explicit and independent
from any limit in rule 61 because rule 59(a)(1) allows for a new
trial only when an identified “irregularity” “prevented [a party]
from having a fair trial.” Utah R. Civ. P. 59(a)(1); see also Child v.
Gonda, 972 P.2d 425, 430 (Utah 1998) (suggesting that the “fair
trial” component of rule 59(a)(1) is linked to the question of
whether the party was prejudiced by the error that justifies relief
under rule 59 generally); Schmidt v. Intermountain Health Care, Inc.,
635 P.2d 99, 101–02 (Utah 1981) (same). A district court’s
assessment of whether an error was “significant enough” or
prejudicial enough to warrant a new trial is “reviewed for abuse
of discretion.” Clarke, 2023 UT App 160, ¶ 22 (quotation
simplified); see also Peterson, 2021 UT App 128, ¶ 32 (holding that,
for purposes of the second step, “we afford deference to a trial
court’s determination, reviewing only for an abuse of discretion”);
State v. De La Rosa, 2019 UT App 110, ¶¶ 5, 9, 445 P.3d 955
(recognizing that the assessment of whether an error “merited a
new trial” is “inherently difficult for appellate courts to second
guess” and further recognizing that such questions are “entirely
within the discretion of the trial court due to its advantaged
position to judge the impact of legal errors on the total
proceedings” (quotation simplified)); Hartvigsen v. Hartvigsen,
2018 UT App 238, ¶ 5, 437 P.3d 1257 (recognizing that a district
court is given “wide latitude” in making this decision (quotation
simplified)).

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¶33 As explained below, (A) we see no abuse of discretion in
the district court’s determination that, under the circumstances of
this case, the only “irregularities” that could justify relief under
rule 59(a)(1) were violations of the court’s ruling on Motion in
Limine 7 that occurred after October 20, and (B) we then see no
abuse of discretion in the court’s conclusion that Ameritech was
not prejudiced by any such violations.

A. Ground for Relief Under Rule 59

¶34 The first question is whether there was a ground for relief
under rule 59. Ameritech’s motion was predicated on rule
59(a)(1), which states that a new trial may be granted based on an
“irregularity in the proceedings of the court, jury or opposing
party . . . by which a party was prevented from having a fair trial.”
Utah R. Civ. P. 59(a)(1). In Ameritech’s view, the “irregularity”
that justified relief here was Defense Counsel’s pattern of
violating the district court’s rulings relating to Motion in
Limine 7.

¶35 As indicated, for purposes of this first step of the rule 59
analysis, we’ve differentiated between rulings that rest on a
“factual determination” (which are reviewed for an abuse of
discretion) and rulings that are based on “legal errors” (which are
reviewed for correctness). Clarke, 2023 UT App 160, ¶ 22
(quotation simplified). But the error in question here doesn’t fit
comfortably in either category. Ameritech’s challenge isn’t
directed at any particular factual determination, nor is it directed
at any particular ruling of the court. Rather, Ameritech’s
argument is that when Defense Counsel repeatedly flouted the
court’s rulings, that pattern (and the resulting evidence that the
jury heard), in the aggregate, created an irregularity.

¶36 In our view, a district court’s ruling on this kind of claim is
naturally reviewed for an abuse of discretion. After all, in terms
of institutional competencies, a district court is in a better position
than we are to determine how egregious the violations of its own

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rulings were. And as indicated, when we review a rule 59
determination, a prejudice determination is reviewed for an abuse
of discretion. See id.; see also Peterson, 2021 UT App 128, ¶ 32. As a
result, we conclude that when a party requests a new trial under
rule 59(a)(1) based on an irregularity that allegedly deprived it of
a fair trial, a district court’s ruling on the first step is reviewed for
an abuse of discretion.

¶37 The district court concluded that, for purposes of the
“irregularity” analysis under rule 59(a)(1), it would limit its
analysis to violations that occurred after the October 20 Decision.
Under the unique circumstances of this case, and in light of the
deference that is afforded to the district court, we see no basis for
overturning that decision. This is so for two interrelated reasons.

1. Lack of Clarity Before October 20

¶38 The parties have spent much energy on appeal disputing
the number of times Defense Counsel violated the court’s rulings
related to Motion in Limine 7. In its brief, Ameritech claims that
there were “at least 38” violations, and it suggests that the number
may actually be higher. In Ameritech’s view, it’s this large
number of violations that constitutes the irregularity that
deprived it of a fair trial. While not necessarily conceding that
there were any violations, Aiken and Hansen contend that, even
if there were some violations, the number was much lower than
Ameritech contends.

¶39 The district court was confronted with this exact question
in Ameritech’s rule 59 motion. And from the vantage point of
being the very court that had issued the rulings in question, the
district court concluded that it would be unfair to consider, as part
of the rule 59 analysis, any violations that had occurred before the
October 20 Decision. As noted, the court observed that before
October 20, there had been “an evolution and expansion” in its
own rulings on the related issues; that “it may initially have been
difficult to draw the line between permissible ‘factual background

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Ameritech College v. Aiken

evidence’” and “impermissible tethering”; and that, up until
October 20, there had been a real-time process of “sustained
objections and sidebar conferences” that had given the parties
guidance on what was and was not permissible.

¶40 We recounted the court’s various rulings on these issues in
the Background. We note here the following:

• Before trial, the court deferred decision on Motion in
Limine 7 but said that it was “inclined” to limit the
evidence regarding the Capital Contribution and the
Loan to “factual background evidence” without
describing what it believed such background evidence
entailed.

• After hearing further arguments on these issues on
October 6 (which was the first day of trial), the court
again said that it would allow, as “background facts,”
evidence that a Capital Contribution was made, “that
the college was in crisis and needed the letter of credit,”
and “whatever you think the evidence will prove as far
as [Aiken’s] intention in playing a part in that.” But the
court then said that it would prohibit any evidence or
arguments that “tether[ed]” the Capital Contribution to
the Redemption Rights.

• On October 11, the court issued its ruling granting
Motion in Limine 7. In that ruling, the court again said
that Defense Counsel could present evidence about the
Capital Contribution and Loan as “factual background
evidence.” But it now said that it would prohibit
evidence that the Capital Contribution and Loan “were
used to post” the Letter of Credit or that Ameritech
“ultimately retained the funds,” and it further
“agree[d]” with Ameritech that “beyond mere
background information, further evidence or argument
regarding the use of the funds does not bear on

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Ameritech College v. Aiken

[Ameritech’s] causes of action or claims for damages.”
But the court did not reference how it thought the
tethering of the Capital Contribution to the Redemption
Rights should be handled.

• Then, on October 20, the court issued a ruling on the
motion to reconsider that definitively held that Defense
Counsel could not tether the Capital Contribution and
Loan to the Redemption Rights, and it also held “the
evidence related to the Capital Contribution and the
use of these funds for the purpose of posting the Letter
of Credit has been limited as required by the Court’s
previous rulings on this point.”

¶41 Two things in particular stand out from this. The first is
that at all times in this trial—both before and after the October 20
Decision—the court expressly said that Aiken and Hansen could
present evidence to the jury of Ameritech’s financial difficulties,
the Letter of Credit obligation, the Capital Contribution, the Loan,
and the Redemption Rights. The court’s prohibitions along the
way were not about admission of or reference to this evidence per
se; rather, the prohibitions were more narrow, focusing on certain
kinds of evidence and argument involving “tethering.” Second, as
the court itself later acknowledged, its rulings about what would
or would not constitute “impermissible tethering” evolved up
until October 20. On October 6, the court seemed to indicate that
Aiken and Hansen could not tether the Capital Contribution to
the Redemption Rights. But when Motion in Limine 7 was granted
on October 11, the court didn’t mention this particular link,
instead indicating that Aiken and Hansen could not tether the
Capital Contribution or the Loan to the Letter of Credit. It wasn’t
until October 20 that the court specifically discussed both types of
tethering at one time.

¶42 At several points during the trial, Defense Counsel
expressed his resultant confusion—both about (1) where the line

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was between permissible “background facts” and impermissible
“tethering,” as well as (2) the nature of the impermissible
“tethering” itself. Before Defense Counsel’s opening statement,
for example, Defense Counsel told the court, “I don’t know how
to tether this line that the Court’s trying to fix for me.” And during
a sidebar that occurred before October 20, Defense Counsel said,
“I’m not trying to be facetious. I’m genuinely trying to understand
the Court’s ruling.”

¶43 The district court also acknowledged its lack of clarity in
real time. At one point during the trial, for example, the court
acknowledged that the “language” of its prior rulings had been
“imprecise.” And again, in its post-trial ruling, the court
acknowledged that there had been “an evolution and expansion”
in its rulings on these issues, and it further stated that “it may
initially have been difficult to draw the line between permissible
‘factual background evidence’ of describing the dots and
impermissible tethering or connecting the dots.”

¶44 Ameritech nevertheless insists on appeal that the district
court’s rulings were clear enough all along. But the district court
itself acknowledged during trial that the line between what was
permissible and impermissible was not particularly clear, Defense
Counsel repeatedly said during trial that he thought the line was
not particularly clear, and, with the benefit of retrospection, the
district court again said after trial that it thought the line it had
drawn was not particularly clear until October 20. Given all this,
it would be an odd thing for us as an appellate court to now say
that, in our view, the line was actually clear enough that we think
the asserted pre-October 20 violations constituted an irregularity
under rule 59(a)(1).

2. The Timing of, and Rulings on, Ameritech’s Objections

¶45 This conclusion is further supported by the nature of the
objections that were and were not lodged, as well as by the court’s
rulings on the objections that were made.

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Ameritech College v. Aiken

¶46 As noted, Ameritech claims that there were “at least 38”
violations. But for a large number of these, Ameritech did not
object. In its brief, for example, Ameritech points to 11 instances
from Defense Counsel’s opening statement, as well as 10 more
alleged violations from Defense Counsel’s closing argument. But
Ameritech never objected to any of these statements on the basis
of Motion in Limine 7. Ameritech also claims that there were 17
violations during witness questioning at trial, but, in the end, only
a handful of these instances were both objected to on Motion in
Limine 7 grounds and sustained by the court.

¶47 For purposes of the particular issue before us on appeal,
we find it problematic that Ameritech has relied on several
instances in which Ameritech objected below based on Motion in
Limine 7, but the district court then overruled the objection. For
example, the district court overruled Ameritech’s objection when
Defense Counsel asked Jones whether the “amount, $556,695,
which came in as a loan, and $5,150,000, which came in as a Class
B capital contribution, totaled the amount of the letter of credit.”
And as another example, the court permitted this question from
Defense Counsel to Jones over Ameritech’s objection: “So you
gave notice that you were exercising your redemption rights to
purchase the Class B participating shares or membership units
held by the lender group; correct?”

¶48 It’s true that, on occasion, Utah appellate courts have
allowed a rule 59 new trial motion to be based on an error for
which there was no objection. See, e.g., Smith v. Volkswagen
SouthTowne, Inc., 2022 UT 29, ¶ 113, 513 P.3d 729 (allowing a
party’s motion for a new trial to survive a challenge of
preservation even though the party had not objected or even
raised the issue in its own motion where the court had sua sponte
raised the concern as permitted by rule 59(d) of the Utah Rules of
Civil Procedure); Clayton v. Ford Motor Co., 2009 UT App 154, ¶ 19,
214 P.3d 865 (allowing appeal of a motion for a new trial on an
issue that was raised for the first time in that motion). But in those

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Ameritech College v. Aiken

instances, the courts thought it was clear enough that the conduct
in question was legally impermissible. In Smith, for example, the
district court’s sua sponte decision to order a new trial was based
on its realization that it had allowed expert testimony that was
critical to a party’s claims and which should have been excluded
under rules 703 and 702 of the Utah Rules of Evidence. 2022 UT
29, ¶¶ 97, 104–05. And in Clayton, the moving party became aware
of potential tampering with evidence during trial. 2009 UT App
154, ¶ 18.

¶49 For purposes of this appeal, we have no need to
definitively weigh in on the interplay between the preservation
rule and rule 59. Rather, under the circumstances of this case,
what matters about the objections—including the ones that were
made, the ones that weren’t, and the court’s rulings on the actual
objections—is how they relate to the lack of clarity with respect to
what was and was not permissible. Again, at all times, Aiken and
Hansen were allowed to present evidence about some of these
underlying issues as “background”; and while the court
prohibited certain kinds of “tethering,” there was (in its own
words) an “evolution” in its rulings about what this meant. Given
the very subtle distinctions at issue as well as the apparent
confusion at trial about where the line really was, it was
incumbent on Ameritech to object if and when it thought Defense
Counsel had crossed the line. Indeed, as the court later explained
in its ruling on the rule 59 motion, before October 20, much of the
line-drawing had been done by “verbal directives, sustained
objections and sidebar conferences.” But because the district
court, in many instances, overruled the objections that Ameritech
did make (including many instances that Ameritech now claims
were impermissible and thus supported its request for a new
trial), those overruled objections would have communicated to
Defense Counsel in real time that his conduct fell on the
permissible side of the line. To the extent that there was some
persistent confusion about what was and was not permissible,
these rulings may have added to it; at minimum, the rulings

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Ameritech College v. Aiken

undermine any suggestion that these particular instances
constituted an irregularity that later justified the request for a new
trial.

¶50 In short, Ameritech claims that the irregularity that
justified its request for a new trial was an aggregated pattern of
violations of the court’s rulings on Motion in Limine 7. But the
rulings in question drew very fine lines and evolved in nature;
Ameritech didn’t always object; and when it did, the court
overruled many of the objections. In these circumstances, we see
no basis for concluding that the district court abused its discretion
in declining to consider, for rule 59 purposes, any violations that
occurred before October 20 when making its determination as to
whether an irregularity occurred.

B. Prejudice

¶51 Under the second step of the rule 59 analysis, “a trial court
must determine whether the identified errors or improprieties are
significant enough to warrant a retrial.” Clarke, 2023 UT App 160,
¶ 22 (quotation simplified). As noted, a district court’s ruling on
this question is reviewed for an abuse of discretion. See id.;
Peterson, 2021 UT App 128, ¶ 32. This is so because the district
court “is in a much better position than this court to evaluate the
parties’ conduct, the context in which the claimed irregularity
occurred, and the fact-finder’s reaction.” In re Estate of Wright,
2024 UT App 146, ¶ 17, 559 P.3d 966 (quotation simplified).

¶52 Here, the district court determined that, “[h]aving
presided over the trial, and upon careful review of the record, . . .
the isolated instances of violations of its in limine order after
October 20 did not prejudice [Ameritech] or come close to
depriving [Ameritech] of a fair trial.” Even if we assume that the
violations that occurred after the October 20 Decision could
constitute an irregularity, thereby satisfying the first step of the
rule 59 analysis, we see no basis for overturning the district court’s

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Ameritech College v. Aiken

conclusion that Ameritech was not prejudiced by those particular
violations. This is so for several reasons.

¶53 First, by the time of the October 20 Decision, “nearly two-
thirds” of the trial had already been completed. And as noted by
the district court, there were only a few “isolated instances” in
which Defense Counsel violated the ruling after that point.

¶54 Second, like the district court, we think it’s significant that,
under all of the district court’s rulings on these issues, the jury
was permitted to hear “background” evidence that overlapped in
no small measure with the evidence at issue in Motion in Limine
7 (and, by extension, the rule 59 motion). Again, the jury was
permitted to hear evidence of Ameritech’s financial difficulties,
the Letter of Credit obligation, the Capital Contribution, the Loan,
and the Redemption Rights. Of some note, Ameritech has never
challenged that allowance.

¶55 The evidence that was deemed impermissible was
evidence suggesting that the Capital Contribution and the Loan
had been “tethered” to the Letter of Credit or the Redemption
Rights. Ameritech argues that it was prejudiced when Defense
Counsel presented evidence about that tethering, and in doing so,
Ameritech relies heavily on Wilson v. IHC Hospitals, Inc., 2012 UT
43, 289 P.3d 369. But when Ameritech made that same argument
to the district court, the district court thought that Wilson was
distinguishable because of the kind of evidence at issue, and we
agree.

¶56 Wilson involved a medical malpractice action in which a
hospital’s alleged negligence had resulted in brain damage to a
newborn baby. See id. ¶ 1. Before trial, the district court had
ordered the parties not to present evidence to the jury of health
insurance benefits that the family had already received. See id.
¶ 28. The court ruled that such evidence would violate the
“collateral source rule,” under which “a wrongdoer is not entitled
to have damages, for which he is liable, reduced by proof that the

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Ameritech College v. Aiken

plaintiff has received or will receive compensation or indemnity
for the loss from an independent collateral source.” Id. ¶ 31
(quotation simplified). Despite this ruling, the hospital made
“persistent and deliberate references” during trial to such
evidence. Id. ¶ 27. On appeal, our supreme court concluded these
violations prejudiced the family, opining that “it has long been
recognized that evidence of collateral source benefits involves a
substantial likelihood of prejudicial impact,” and it ordered a new
trial as a result. Id. ¶¶ 46–47, 78 (quotation simplified).

¶57 Unlike collateral source evidence, the evidence in question
here was not expressly prohibited by rule, nor is it the kind of
evidence for which courts have recognized any sort of categorical
rule of prejudice. Instead, as the district court pointed out, “there
was nothing inherently prejudicial” about the jury hearing
evidence of “the $5.7 million contribution or its tethering” to the
Letter of Credit or even the Redemption Rights, “such that
prejudice can be presumed, as was the case in Wilson.” Indeed,
Ameritech itself recognized below that information about the
Capital Contribution and the Loan was “part of the factual
background to the issues in dispute.” And in denying the rule 59
motion, the district court likewise said that there was “no question
that the fact of the $5.7 million contribution was permissible
background information necessary for the jury to understand the
case: the contribution was part and parcel of the takeover that is
the basis of [Ameritech’s] claims, and the amounts were openly
and repeatedly documented in numerous trial exhibits and other
evidence introduced by both parties at trial.”

¶58 Third, before deliberations, the district court instructed the
jury that it could not “consider” information about the Capital
Contribution or Loan “for purposes of assessing liability, legal
defenses, or in calculating any damages award.” In rejecting
Ameritech’s new trial motion, the court noted that Ameritech
itself had “crafted this curative instruction.” And the court was
“satisfied that this Instruction did its job of curing any prejudice

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occasioned by [D]efense [C]ounsel’s occasional forays outside the
boundaries of the Court’s ruling[s].” “We normally presume that
a jury will follow an instruction to disregard inadmissible
evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to follow
the court’s instructions, and a strong likelihood that the effect of
the evidence would be devastating to the [party].” State v. Raheem,
2024 UT App 29, ¶ 66, 546 P.3d 331 (quotation simplified), cert.
denied, 550 P.3d 997 (Utah 2024); see also State v. Suhail, 2023 UT
App 15, ¶ 142, 525 P.3d 550 (noting that “curative instructions are
ordinarily presumed on appeal to be effective, absent a substantial
and prejudicial underlying error or irregularity” (quotation
simplified)), cert. denied, 531 P.3d 730 (Utah 2023).

¶59 Finally, like the district court, we believe that, even without
the impermissible tethering evidence, the jury had an evidentiary
basis from which to conclude that Ameritech had not established
that any improper conduct caused damages. As noted, although
the jury concluded that Aiken and Hansen had committed some
of the alleged conduct, 4 the jury (through a special verdict form)
specifically did not find that any of this conduct caused
Ameritech’s claimed damages. While Ameritech now argues that
the jury’s decision not to award damages could only have been
explained by reliance on the impermissible tethering evidence, we
note that the jury heard, as part of the permissible background
evidence, that the College was in financial trouble and that Aiken
stepped into her role of interim CEO when these financial woes
were already present. The district court—which, again, was in an
advantaged position from which to judge the effects of any
impropriety on the verdict—also observed that there was
“evidence” before the jury “that others acted wrongfully,” and

4. As noted above, the jury found that Aiken had breached her
fiduciary duties and engaged in fraudulent non-disclosure,
negligent misrepresentation, and tortious interference, and that
Aiken and Hansen had engaged in a civil conspiracy.

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Ameritech College v. Aiken

from all this, the court opined that the jury had a basis for
concluding that the actions of those “others . . . were the more
direct cause of the events leading up to and precipitating the
takeover.” And it thus concluded that the “isolated” violations
that occurred after October 20 did not prejudice Ameritech.

¶60 In short, given that much of the underlying evidence was
before the jury, the fact that the court issued a curative instruction,
and the court’s conclusion that evidence that was properly before
the jury supported its decision not to award damages, and in light
of the deference that is afforded to the district court in this area,
we see no basis for reversing the court’s decision to deny the
request for a new trial on damages.

II. Motion for Contempt

¶61 Ameritech alternatively asked the district court to hold
Aiken and Hansen in contempt for Defense Counsel’s conduct
and, as a sanction, award Ameritech the full measure of damages
that it had requested (over $10 million). The district court,
however, was unpersuaded that Defense Counsel’s actions
“constitute[d] the type of violation to support a finding of
contempt.” Ameritech now challenges that denial on appeal, but
we reject its arguments for largely the same reasons set forth
above with respect to the new trial issue.

¶62 “As a general rule, in order to prove contempt for failure
to comply with a court order it must be shown that the person
cited for contempt knew what was required, had the ability to
comply, and intentionally failed or refused to do so.” Clarke v.
Clarke, 2012 UT App 328, ¶ 24, 292 P.3d 76 (quotation simplified).
In addition, “the person challenging the court’s decision to hold
someone in contempt must demonstrate that, viewed in the light
most favorable to the trial court, the evidence was insufficient to
support the court’s decision.” Id. (quotation simplified).

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Ameritech College v. Aiken

Once a court finds the existence of facts necessary to
support a contempt sanction, the decision to hold a
party in contempt of court rests within the sound
discretion of the trial court and will not be disturbed
on appeal unless the trial court’s action is so
unreasonable as to be classified as capricious and
arbitrary, or a clear abuse of discretion.

TKS Co-Pack Mfg., LLC v. Wilson, 2024 UT App 87, ¶ 36, 552 P.3d
258 (quotation simplified).

¶63 As discussed, the district court concluded that there had
been a lack of clarity about what was and was not permissible
before October 20, and for purposes of the rule 59 analysis, we’ve
declined to disturb that decision. We see no basis for treating the
question any differently for purposes of the contempt issue. Since
most of the alleged violations occurred prior to October 20—
which was, in the district court’s view, something of a
demarcation point after which Defense Counsel had “clear notice
. . . of what constituted a violation”— the district court had ample
basis to conclude that Defense Counsel had not knowingly
disobeyed a court order for those prior alleged violations.

¶64 This leaves the violations that occurred after October 20.
But with respect to these violations, the district concluded that
sanctions for contempt were not warranted. In challenging that
conclusion on appeal, Ameritech cites several cases in which
appellate courts affirmed decisions from district courts that
imposed sanctions for contempt. See, e.g., Foreman v. Foreman, 176
P.2d 144, 149–50 (Utah 1946); State v. C.H., 2008 UT App 404U,
para. 7; Envirotech Corp. v. Callahan, 872 P.2d 487, 497–99 (Utah Ct.
App. 1994). In Ameritech’s view, what’s significant about these
cases is that the district courts held parties in contempt and
imposed sanctions for violating court orders. But in our view,
what’s just as significant about these cases is that appellate courts
were affirming the district courts’ decisions to use their discretion

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and sanction a party for contempt. In this sense, these decisions
can be seen as being grounded in the deference that appellate
courts give to a district court’s prerogative with respect to
contempt rulings.

¶65 But what Ameritech is asking for here is something
altogether different—namely, a decision from an appellate court
holding that a district court was required to sanction a party for
contempt, even though the district court itself considered the
matter and concluded that the conduct in question did not rise to
the level of contempt. We’re aware of no case, and Ameritech has
not pointed to one, in which an appellate court overruled a district
court’s decision to not hold a party in contempt. And in light of
the circumstances discussed above—including the initial lack of
clarity and then the “evolution” in the court’s rulings, the fact that
much of the evidence in question was going to be admitted
anyway, and the issuance of a curative instruction—we cannot
conclude that the district court’s decision in this case was “so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion.” TKS Co-Pack Mfg., 2024 UT App 87, ¶ 36
(quotation simplified). We therefore reject this argument.

CONCLUSION

¶66 For the reasons set forth above, we affirm the district
court’s decisions not to grant Ameritech a new trial or award
sanctions for contempt. 5

5. Aiken and Hansen filed a conditional cross-appeal arguing that
if we concluded that Ameritech was entitled to either a new trial
or sanctions for contempt, we should then review and reverse the
court’s conclusion that the tethering evidence was inadmissible.
Because we rule in Aiken and Hansen’s favor on both decisions,
we need not reach the issue raised in the conditional cross-appeal.

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