Dickman Family Properties, Inc. v. White

IN THE UTAH COURT OF APPEALS

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Dickman Family Properties, Inc., ) MEMORANDUM DECISION
)
Plaintiff, ) Case No. 20110126‐CA
)
v. )
) FILED
Donald J. White and Sheila White, ) (October 25, 2012)
)
Defendants and Appellants. ) 2012 UT App 299
____________________________________ )
)
Mark Wright, )
)
Witness and Appellee. )

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Fourth District, Heber Department, 070500276
The Honorable Derek P. Pullan

Attorneys: Steven W. Call and Elaine A. Monson, Salt Lake City, for Appellants
L. Benson Mabey, Salt Lake City, for Appellee

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Before Judges Orme, Roth, and Christiansen.

ROTH, Judge:

¶1 Defendants Donald J. White and Sheila White appeal the district court’s decision
that a third‐party witness, Mark Wright, should not be held in contempt. In particular,
the Whites challenge the court’s determination that the contempt proceeding was
criminal in nature and, thus, required application of the beyond a reasonable doubt
standard of proof. According to the Whites, the court should have treated the matter as
a civil contempt proceeding and applied a clear and convincing evidence standard of
proof. Because the Whites failed to preserve this issue in the district court, we affirm.

¶2 Among other things, “unlawful interference with the process or proceedings of a
court” is a “contempt[] of the authority of the court.” Utah Code Ann. § 78B‐6‐301(9)
(2008). If a person is found to be in contempt, the court may impose various sanctions,
including a fine, incarceration, or a compensatory monetary award to a party aggrieved
by another’s contempt. See id. §§ 78B‐6‐310, ‐311. A contempt proceeding may be civil
or criminal in nature. “‘The primary determinant of whether a particular contempt
order is to be labeled civil or criminal is the trial court’s purpose in entering the order.’”
Shipman v. Evans, 2004 UT 44, ¶ 40, 100 P.3d 1151 (quoting Von Hake v. Thomas, 759 P.2d
1162, 1168 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467
(Utah Ct. App. 1991)). “[I]t is the purpose, not the method of the punishment, that
serves to distinguish the two types of [contempt] proceedings.” Von Hake, 759 P.2d at
1168. “‘A contempt order is criminal if its purpose is to vindicate the court’s authority,
as by punishing an individual for disobeying an order, even if the order arises from
civil proceedings.’” Shipman, 2004 UT 44, ¶ 40 (quoting Von Hake, 759 P.2d at 1168). “A
contempt order is civil if it has a remedial purpose, either to coerce an individual to
comply with a court order given for the benefit of another party or to compensate an
aggrieved party for injuries resulting from the failure to comply with an order.” Von
Hake, 759 P.2d at 1168. The characterization of a contempt proceeding determines the
applicable standard of proof: criminal contempt must be proven beyond a reasonable
doubt; civil contempt must be proven by clear and convincing evidence. See id. at 1172‐
73.

¶3 “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.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (internal
quotation marks omitted); Shipman, 2004 UT 44, ¶ 39 (explaining that the district court’s
exercise of its contempt power is reviewed for an abuse of discretion). That discretion
“includes not just the power to decide whether a party should be held in contempt, but
the power to determine whether [the purpose of] a particular contempt order is civil or
criminal.” Shipman, 2004 UT 44, ¶ 40 (citing Von Hake, 759 P.2d at 1168). “Only rarely
will we reverse the [district] court’s decision in this matter” and only in circumstances
where the court’s decision “is so unreasonable as to be classified as capricious and

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arbitrary, or a clear abuse of . . . discretion.” Id. ¶ 39 (omission in original) (internal
quotation marks omitted).

¶4 During the course of the underlying litigation, the Whites moved for summary
judgment against the plaintiff, Dickman Family Properties, Inc. In opposing the Whites’
summary judgment motion, the plaintiff submitted a declaration (the Declaration) from
the witness. The district court denied the Whites’ motion for summary judgment.

¶5 Subsequently, during discovery, the Whites deposed the witness, and his
deposition testimony called into question the accuracy of many of the statements he
made in the Declaration. As a result, the Whites moved for an order to show cause,
asserting that the witness should be held in contempt for making a false declaration in a
court proceeding. See generally Utah Code Ann. § 78B‐6‐301(9) (“[U]nlawful
interference with the process or proceedings of a court” is an “act[] . . . in respect to a
court or its proceedings [that is a] contempt[] of the authority of the court.”). In moving
for an order to show cause, the Whites emphasized the criminal nature of the witness’s
conduct, asserting in particular that in making a false declaration, the witness
committed an act of perjury. In addition, the Whites requested an award of attorney
fees for the efforts they had made in responding to the Declaration and in bringing the
contempt proceeding. See id. § 78B‐6‐311 (permitting an award of “costs and expenses”
to a party affected by another’s contempt). In response to the Whites’ motion, the
district court issued an order to show cause and scheduled a hearing.

¶6 At the conclusion of the hearing, the court ruled from the bench, reasoning that
the contempt proceeding before it was for the purpose of protecting “the authority and
integrity of court processes” and was therefore criminal in nature. The court thus
determined that “to prevail, [the Whites] must prove beyond a reasonable doubt that
[the witness] willfully and intentionally testified falsely in his Declaration.” Applying
that burden of proof, the court concluded that “[o]n the evidence presented, [it] c[ould
]not find beyond a reasonable doubt that [the witness] willfully and intentionally
testified falsely in [the] . . . Declaration.” The court then made factual findings in
support of its conclusion:

The Declaration arose out of communication between [the
witness] and counsel for Plaintiff[s]. [The witness] e‐mailed
counsel regarding his memories that he deemed to be

20110126‐CA 3
relevant. Counsel prepared a written declaration, which was
forwarded to [the witness, who] testified that he reviewed
the Declaration . . . and believed [it] to be consistent with his
memory to the best of his knowledge.

The Declaration was prepared early in the case, the
reliability of [the witness’]s memory has now been tested at
deposition. That process has disclosed significant
inconsistencies between the Declaration and the
[d]eposition, and [the witness] now concedes that the
[d]eposition is the better record of his memory.

The events described span decades. [The nature of the case]
. . . require[d the witness] to parse through the deep recesses
of memory. [The witness] is attempting to recall memories
of his boyhood, from even before he turned ten years of age.
That inaccuracies are identified after cross‐examination is
not surprising. Having said that, clearly, in this case more
care should have been taken by both counsel and [the
witness] in the preparation and ultimate execution of the
Declaration. The Declaration submitted to the [c]ourt is the
same as the witness taking the oath and testifying in open
court, and all legal counsel have a duty to insure that false
testimony is not knowingly offered.

The district court accordingly ordered that the contempt proceeding be dismissed.1

1
In conjunction with the order to show cause, the district court also considered
the Whites’ motion to strike the Declaration. Concluding that the witness’s deposition
was a more accurate record of his memory, the district court granted the motion to
strike. In light of the inaccuracies within the Declaration that had been stricken, the
Whites renewed their motion for summary judgment, which the district court denied,
concluding that, despite the inaccuracies, there were material issues of fact still in
dispute.

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¶7 At the court’s request, the witness submitted a proposed order for dismissal of
the contempt proceeding, to which the Whites filed a written objection. In that
objection, among other things not at issue here, the Whites complained that the
proposed order did not contain a more detailed explanation of the analysis that the
court “undertook to determine whether the contempt proceeding[] . . . w[as] civil or
criminal in nature.” The Whites then specified a few particular statements that they
requested be included in the order. The court denied the objection.

¶8 The Whites appeal the district court’s ruling, arguing that the court
inappropriately categorized the contempt proceeding as criminal rather than civil in
nature. In support of this position, the Whites assert a relatively novel legal argument
that they, rather than the district court, have the right to determine the purpose of a
contempt proceeding that they initiated, contending that as “an aggrieved party[, they
have] a civil remedy against a wrongdoer in a contempt proceeding.” (Citing Utah
Code Ann. § 78B‐6‐311 (2008); Clover Leaf Dairy Co. v. Van Gerven, 73 Utah 471, 275 P. 9,
10 (1929).) In other words, according to the Whites, because they sought attorney fees
the contempt proceeding was for a compensatory purpose, making it civil in nature,
and the district court therefore was required to treat the proceeding as civil rather than
criminal and apply the clear and convincing evidence standard of proof rather than the
higher beyond a reasonable doubt standard. According to the Whites, if the clear and
convincing evidence standard had been applied, the district court would have had
sufficient evidence to find the witness in contempt for filing a false declaration.2

2
In arguing that the district court should have applied the clear and convincing
evidence standard of proof, the Whites invite this court to apply that standard to the
facts and to reach its own conclusion that the witness acted in contempt of court by
filing a false declaration. However, were this court to conclude that the district court
should have applied the clear and convincing evidence standard, the appropriate
remedy would be to remand the issue to the district court so that it could apply the
correct standard to the applicable facts in exercise of its discretion. This is because the
assessment and weighing of facts inherent in reaching a judgment based on the
application of any standard of proof is particularly within the province of the trial court
and not a proper subject for appellate court decision‐making in the first instance. See
generally Willey v. Willey, 951 P.2d 226, 230 (Utah 1997) (“It is inappropriate in most
instances for an appellate court to . . . assume the task of weighing evidence and making
(continued...)

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¶9 We do not reach the legal issue the Whites have presented to us, however,
because they have not preserved it for appeal. “[I]n order to preserve an issue for
appeal[,] the issue must be presented to the trial court in such a way that the trial court
has an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (alterations in original) (internal quotation marks omitted). “This
requirement puts the trial judge on notice of the asserted error and allows for correction
at that time in the course of the proceeding.” Id. “For a trial court to be afforded an
opportunity to correct the error (1) the issue must be raised in a timely fashion[,] (2) the
issue must be specifically raised[,] and (3) the challenging party must introduce
supporting evidence or relevant legal authority.” Id. (alterations in original) (internal
quotation marks omitted). “Issues that are not raised [in the trial court] are usually
deemed waived.” Id.

¶10 In the section of their appellate brief where the Whites must identify the location
in the record where the issue raised on appeal was preserved, the Whites generally
direct us to their motion for an order to show cause and its supporting memoranda. See
generally Utah R. App. P. 24(a)(5)(A) (requiring an appellate brief to contain “[a]
statement of the issues presented for review . . . [including] citation to the record
showing that the issue was preserved in the trial court”). However, we have been
unable to identify any place in these written submissions where the Whites mention the
distinction between civil and criminal contempt proceedings or refer to this proceeding
as either civil or criminal. Indeed, the request for an award of attorney fees itself is the
only thing that suggests that the contempt proceeding might have a civil purpose. On
the other hand, the Whites argued that by filing a false declaration, the witness

2
(...continued)
its own findings of fact.” Rather, “[t]he appellate court . . . . grant[s] considerable
deference to the trial court [in regard to fact‐intensive matters] due to its familiarity
with the facts and the evidence.”).
In addition, in a single footnote, the Whites argue that the “evidence shows that
even [the beyond a reasonable doubt] standard of proof was satisfied through the
evidence presented at trial.” This single sentence is insufficient to challenge the district
court’s findings and conclusions. Notably, the Whites do not mention, let alone
challenge, the factual findings the district court made in support of its decision. See
supra ¶ 6.

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essentially committed perjury, and “if a witness commits perjury, he or she can be
reached by contempt proceedings.”3

¶11 The first time that the nature of the contempt proceeding was directly addressed
below by any participant was when the district court itself ruled from the bench that
this proceeding was criminal in nature and therefore required application of the beyond
a reasonable doubt standard of proof. At that time, the Whites raised no objection. The
court’s oral ruling was memorialized in a proposed order submitted by the witness,
which reiterated that the contempt proceeding was for the purpose of protecting “the
authority and integrity of court processes” and was therefore criminal in nature and
required that the Whites “prove beyond a reasonable doubt that [the witness] willfully
and intentionally testified falsely in his Declaration.” The Whites filed a written
objection to the order but took no exception to the conclusion regarding the criminal
nature of the contempt proceeding and the applicable burden or proof. Rather, the
Whites objected that the proposed order did not contain a more detailed explanation of
the analysis that the court “undertook to determine whether the contempt proceeding[]
. . . w[as] civil or criminal in nature” and requested inclusion in the order of a few
additional statements made by the court in entering its oral ruling. Essentially, the
Whites’ objection simply asked the court to expand the discussion of the basis for the
court’s conclusion that the proceeding was criminal, but without alerting the court to
the seemingly more critical fact that they disagreed with that decision in any way.

¶12 The question of whether the Whites adequately raised this issue to the district
court is important given the applicable standard of review. See Shipman v. Evans, 2004
UT 44, ¶¶ 39‐40, 100 P.3d 1151 (explaining that the district court’s exercise of its
contempt power is reviewed for an abuse of discretion and that discretion “includes not
just the power to decide whether a party should be held in contempt, but the power to
determine whether [the purpose of] a particular contempt order is civil or criminal”
(citing Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as

3
In the witness’s response to the Whites’ motion for an order to show cause, he
explains that contempt proceedings may be either criminal or civil in nature, but he
does so without asserting or suggesting that this proceeding is one or the other. This
appears to be the only mention of the distinction between civil and criminal contempt
proceedings in the Whites’ and the witness’s memoranda prior to the district court’s
oral ruling on this matter.

20110126‐CA 7
stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991))). Here, the district court
explicitly “f[ound] that what is at stake [in this case] is the authority and integrity of
court processes,” and therefore “conclude[d] that these [we]re criminal contempt
proceedings.” The “court’s decision to treat [the contempt] proceeding as an action for
criminal contempt [i]s . . . conclusive evidence of its purpose” in entertaining this
contempt proceeding. See id. ¶ 41. If the Whites intended the contempt proceeding to
be for a compensatory purpose‐‐thus making the proceeding civil, rather than criminal‐‐
they should have made that clear to the district court from the beginning so the court
could understand exactly what the Whites perceived to be the boundaries of the court’s
authority. This is particularly pertinent in this situation where the Whites assert that
they are entitled to control the purpose of the contempt proceeding by having initiated
it‐‐an argument they make in the face of much precedent that suggests that such a
determination is within the discretion of the district court. In any event, at the time the
court ruled from the bench, the Whites were unambiguously alerted to the fact that
their conception of the purpose of the contempt proceeding was very different from the
court’s in a way that had a significant effect on the applicable standard of proof and, in
their view, could be determinative of the outcome of the proceeding itself. At that time,
the Whites should have brought this issue to the court’s attention. The Whites then let
pass another opportunity to bring this issue to the court’s attention when they objected
to the proposed order without advising the court that, in their view, it had erred by
misapprehending the nature of the proceeding and applying the wrong standard of
proof.

¶13 Thus, the Whites did not raise this issue to the district court “in such a way that”
it would put the court “on notice of the asserted error” and give the court “an
opportunity to rule on that issue” and “allow[] for correction at that time in the course
of the proceeding.” See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. As
a consequence, the district court was never given the opportunity to consider the
question the Whites raise on appeal, i.e., whether their request for compensation in the
form of attorney fees required that the district court treat the contempt proceeding as
civil rather than criminal. Its decision that the proceeding was criminal in nature is

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otherwise well within the scope of the district court’s discretion under established law,
and we see no basis for disturbing it.

¶14 Accordingly, we affirm.

____________________________________
Stephen L. Roth, Judge

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¶15 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
Michele M. Christiansen, Judge

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