Hill v. Allred

2009 UT 28
216 P.3d 929
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Virginia Hill, 	Nos. 20030980
Plaintiff, Appellant, 	20060752
and Cross-Appellee,
v.
Estate of Owen A. Allred; Corporation
of the Presiding Elder of the
Apostolic United Brethren; J. LaMoine
Jenson; Jenson Lumber Corporation,
Inc.; and Estate of John C. Putvin,
Defendants, Appellees, and
Cross-Appellants,
Dennis E. Matthews; Jeffrey J.
Norman; James E. Sandmire;
Diamond Auto Specialists, Inc.;
Diamond Recreational Rentals, Inc.;
Pacific Rim Mortgage and Loan
Services, Inc.; Pacific Rim Mortgage
Brokers, Inc.; Diamond Auto Body and
Paint; Brisan Imports; and Last 	F I L E D
Resort Enterprises, Inc.,
Defendants and Appellee. 	May 1, 2009
---
Fourth District, Nephi Dep’t
The Honorable Donald J. Eyre, Jr.
No. 970400153
Attorneys: 	Clark R. Nielsen, Kathryn J. Steffey, Salt Lake City,
Don S. Redd, Layton, for appellant
Drew Briney, Spanish Fork, for appellees Estate of
Owen A. Allred, Corp. of the Presiding Elder of the
Apostolic United Brethren, J. LaMoine Jenson, and
Jenson Lumber Corp.
Estate of John C. Putvin, Bingham Canyon, pro se
appellee
Dennis E. Matthews, Eagle Mountain, pro se appellee
---

Nos. 20030980, 20060752 	2
NEHRING, Justice:
¶1 	Virginia Hill appeals the order of the district court
awarding her damages on her claims of civil conspiracy,
conversion, and fraudulent misrepresentation and denying her
claims of money laundering and racketeering. 	Defendants cross-
appeal, challenging the district court’s award of damages. 	We
affirm in part and reverse in part.
FACTUAL BACKGROUND
¶2 	The district court made extensive findings of fact
below, on which we base the following recitation of the pertinent
facts.
¶3 	Virginia Hill moved to southern Utah from Michigan,
seeking a fresh start in life following marital difficulties.
While visiting St. George, Ms. Hill became acquainted with John
Shugart, the leader of a small religious group, and asked Mr.
Shugart for help purchasing real property known as the Desert Inn
Ranch. 	The owner of the ranch had set a purchase price of $1.5
million, which Ms. Hill could have paid in cash. 	A friend of Mr.
Shugart, Dennis Matthews, agreed to help Ms. Hill negotiate with
the owner to purchase the ranch. 	The owner of the ranch told Mr.
Matthews that he did not want to receive payments in cash and did
not want to receive payment as a lump sum. 	To further facilitate
the purchase of the ranch, Mr. Matthews suggested that Ms. Hill
hire John Putvin, a former real estate agent, which she did.
¶4 	Mr. Shugart then delivered $1 million in cash,
belonging to Ms. Hill, to Mr. Putvin and Mr. Matthews and
directed them to proceed with the purchase of the ranch. 	Mr.
Shugart, Mr. Matthews, and Mr. Putvin decided to invest some of
Ms. Hill’s money to generate cash flow to make payments on the
ranch and to increase the amount of the principal. 	Ms. Hill
agreed, in general, to the plan of investing her money.
¶5 	Once Mr. Matthews and Mr. Putvin received Ms. Hill’s
money, they became concerned about how the purchase of the ranch
would affect their relationship with the Corporation of the
Presiding Elder of the Apostolic United Brethren, a religious
group with which they were affiliated. 	Mr. Shugart had
previously attempted to purchase the ranch with the help of the
AUB, but the ranch had been foreclosed upon. 	The AUB lost a
significant amount of money as a result, and it blamed Mr.
Shugart for its loss. 	Additionally, the leader of the AUB, Owen
Allred, considered Mr. Shugart to be a threat to his

1 In the briefs and in the record, J. LaMoine Jenson is
variously referred to as J. Lamoine Jensen; Jenson Lumber Corp.
is also referred to as Jenson Lumber Corp., Jensen Lumber Co.,
and Jenson Lumber Co. 	Counsel for Mr. Jenson, in the appellate
briefs, uses J. LaMoine Jenson and Jenson Lumber Corp., and we do
the same.
3 	Nos. 20030980, 20060752
ecclesiastical leadership. 	Mr. Matthews feared that they would
be compromising their loyalty to Mr. Allred, who he believed to
hold authority of divine origin, by helping Mr. Shugart purchase
the ranch, so they decided that they should discuss the matter of
Ms. Hill and the ranch with Mr. Allred.
¶6 	When Mr. Matthews and Mr. Putvin met with Mr. Allred,
they represented that the money came from Ms. Hill with “no
strings attached.” 	Ms. Hill was described as a woman who wanted
“to atone for . . . past sins.” 	The men revealed, however, that
Mr. Shugart was involved in the ranch acquisition discussions and
that Mr. Shugart wished to grant Mr. Matthews operational control
over the ranch under the title of “bishop.” 	Mr. Allred told Mr.
Matthews and Mr. Putvin to proceed with the purchase of the
ranch, and Mr. Matthews agreed to side with Mr. Allred in the
event that Mr. Allred’s instructions regarding the ranch
conflicted with those of Mr. Shugart. 	Later, Mr. Matthews met
with Mr. Allred, unaccompanied by Mr. Putvin. 	At this meeting,
Mr. Allred ordained Mr. Matthews as the bishop of the ranch in
order to preempt any attempt by Mr. Shugart to do so.
¶7 	In addition to the $1 million already given to Mr.
Matthews and Mr. Putvin, Ms. Hill provided them, through Mr.
Shugart, with another $500,000 for the purchase of the ranch and
paid Mr. Putvin $40,000 for his services.
¶8 	Mr. Matthews and Mr. Putvin received $1.54 million of
Ms. Hill’s money in total but never delivered the promised ranch
or repaid any of the money. 	They had other individuals use the
cash (in amounts less than $10,000 to avoid IRS reporting
requirements) to open bank accounts and then write checks back to
Mr. Putvin. 	They gave a bag of cash to J. LaMoine Jenson, the
owner of Jenson Lumber Corporation, Inc., 1 who deposited portions
of the money along with his regular deposits and eventually
returned a check for $30,000 to Mr. Putvin. 	Mr. Putvin paid some
of the money to the AUB, which he characterized as tithing. 	A
check was later delivered back to Mr. Putvin by Mr. Allred. 	Mr.
Matthews used some of the money to conduct home improvements and
to pay federal tax liens.

2 Sometime during the litigation/appeal, Mr. Allred died and
his estate was substituted in his place. 	Throughout this
opinion, however, we will refer to the substituted estate as Mr.
Allred.
3 Sometime during the litigation/appeal, Mr. Putvin died and
his estate was substituted in his place. 	Throughout this
opinion, however, we will refer to the substituted estate as Mr.
(continued...)
Nos. 20030980, 20060752 	4
¶9 	Mr. Putvin also used Ms. Hill’s money to establish
various businesses with James Sandmire. 	These businesses then
purchased inventory and facilities using the money. 	Diamond Auto
Specialties, Inc., one of the businesses Mr. Putvin and Mr.
Sandmire founded with Ms. Hill’s money, used Ms. Hill’s money to
purchase real property. 	Mr. Putvin loaned Ms. Hill’s money to
Diamond Auto and structured the repayment of the money so that
repayment would be made to the AUB. 	Mr. Putvin assigned his
rights under the trust deed for the real property to the AUB, and
payments were made to them.
¶10 	Mr. Putvin did make some effort to purchase the ranch
after he and Mr. Matthews assumed control of Ms. Hill’s money.
An option agreement was drafted, but never executed, and Mr.
Putvin never made the required $500,000 down payment on the
ranch.
¶11 	Ms. Hill soon became concerned about the status of her
money. 	She and Mr. Shugart met with both Mr. Matthews and Mr.
Allred. 	Mr. Matthews told her that Mr. Putvin had all her money
and was nowhere to be found. 	Mr. Allred denied knowing anything
about her money. 	Ms. Hill eventually hired private
investigators, who attempted to locate Mr. Putvin. 	They were
unsuccessful. 	All the people they interviewed, including Mr.
Matthews and Mr. Sandmire, told them they were unaware of Mr.
Putvin’s whereabouts. 	During this time, Mr. Shugart informed Ms.
Hill that he had received divine revelations that it was God’s
will that she not pursue litigation to recover her money.
Finally, one of Ms. Hill’s investigators received a tape of the
initial meeting between Mr. Putvin, Mr. Matthews, and Mr. Allred.
She was thereafter able to learn what had happened to her money.
Upon learning that none of her money remained in Mr. Putvin’s
possession and could not be returned to her, she filed suit.
PROCEDURAL BACKGROUND
¶12 	Suit was filed in August 1997 against Mr. Allred, 2 Mr.
Matthews, Mr. Putvin, 3 the AUB, Mr. Jenson, Jenson Lumber Corp.,

3 (...continued)
Putvin.
4 Because of the number of parties named as defendants and
because some of the defendant parties are appellees on some
issues and also cross-appellants on other issues, we will refer
to them collectively throughout this opinion as Defendants.
5 	Nos. 20030980, 20060752
Mr. Sandmire, and several other defendants, alleging claims of
civil conspiracy, constructive fraud, conversion, unjust
enrichment, money laundering, fraudulent misrepresentation,
racketeering, and intentional infliction of emotional distress. 4
¶13 	Defendants denied all the allegations, asserting that
the statute of limitations had run on all of Ms. Hill’s claims.
Ms. Hill argued that her claims were timely because she was
unaware of them until November 1994 due to the misrepresentations
made by Defendants. 	Further, Ms. Hill showed that Mr. Putvin was
out of the state for substantial periods of time between 1990 and
1996. 	The Fourth District Court held that Ms. Hill’s claims were
not timely filed and dismissed them, with the exception of those
against Mr. Putvin. 	Ms. Hill appealed, and we reversed and
remanded. 	Hill v. Allred, 2001 UT 16, ¶ 1, 28 P.3d 1271.
¶14 	Following a bench trial, the district court found that
Mr. Allred, Mr. Matthews, Mr. Putvin, the AUB, Mr. Jenson, Jenson
Lumber Corp., and Mr. Sandmire all engaged in a civil conspiracy
to deprive Ms. Hill of $1.54 million. 	Further, the district
court held that Defendants converted Ms. Hill’s money and that
they made fraudulent misrepresentations to her. 	The court also
found that although there were instances where Defendants engaged
in money laundering, Ms. Hill could not bring a cause of action
for money laundering as a private citizen. 	Finally, the district
court held that Ms. Hill did not meet her burden of proof on her
claims of racketeering and intentional infliction of emotional
distress.
¶15 	The district court awarded Ms. Hill $1.54 million in
actual damages plus prejudgment interest and costs. 	The court
declined Ms. Hill’s request for punitive damages, holding that
punitive damages were not available because Ms. Hill came to the
court with unclean hands. 	The district court held the parties
jointly liable for the damages awarded; however, it apportioned
that amount as follows: 	Mr. Matthews and Mr. Putvin were held
personally liable for the entire amount of damages, to be reduced
by the amounts other defendants were held liable for; Mr. Allred
was held liable for only $30,000; Mr. Jenson and Jenson Lumber

Nos. 20030980, 20060752 	6
Corp. for $30,000, collectively; the AUB for $250,000; and Mr.
Sandmire for $500,000.
¶16 	The parties filed an array of post-trial motions. 	Ms.
Hill filed a motion to reconsider and modify the decision
regarding punitive damages, a motion to amend the judgment
regarding the holding that she did not meet her burden of proving
racketeering activity, and a motion to amend the pleadings to
include a claim of receiving stolen property and for treble
damages. 	Defendants filed an objection to the award of
prejudgment interest, a motion to vacate the judgment based on
errors in the findings of fact, and a motion to amend the
judgment to deny the entire award of damages based on unclean
hands. 	The district court denied all of the parties’ post-trial
motions. 	Ms. Hill appealed and Defendants cross-appealed.
¶17 	Ms. Hill makes the following five arguments on appeal:
(1) The district court erred as a matter of law in denying her
punitive damages because she had unclean hands; (2) The district
court erred in refusing to hold all of the defendants jointly and
severally liable for civil conspiracy; (3) The district court
erred in holding that she did not meet her burden of proving a
pattern of unlawful activity under her racketeering claim;
(4) The district court erred in denying her motion to amend the
pleadings to include a claim for receiving stolen property and
for treble damages; and (5) The district court erred in finding
that the assignment of a trust deed to Mr. Jenson and the
assignment of a trust deed to the AUB were actually only the
assignment of one trust deed.
¶18 	In their cross-appeal, Defendants make the following
seven arguments: 	(1) The district court erred by awarding Ms.
Hill damages after finding that she had unclean hands; (2) The
district court erred by failing to award the AUB attorney fees
for prevailing on the racketeering claim; (3) The district court
erred in refusing to apportion liability to Mr. Shugart; (4) The
district court erred because it did not make findings of fact and
conclusions of law for each of Defendants’ affirmative defenses;
(5) The district court’s award of damages constituted punitive
damages and should not have been allowed because Ms. Hill had
unclean hands; (6) The district court erred in awarding
prejudgment interest; and (7) The district court erred in
awarding damages against the AUB in the amount of $30,000.
We will first address Ms. Hill’s arguments in the order listed
above. 	Our holdings on several of these claims resolve cross-
appeal arguments brought by Defendants. 	We will then address the
Defendants’ remaining arguments.

7 	Nos. 20030980, 20060752
ANALYSIS
I. 	THE DOCTRINE OF UNCLEAN HANDS DOES NOT PREVENT AN AWARD OF
PUNITIVE DAMAGES IN THIS CASE
¶19 	The district court awarded Ms. Hill $1.54 million in
actual damages, which compensated her for the total amount she
claimed was taken from her. 	Despite this victory, the district
court denied her request for attorney fees and punitive damages
because it found that she had “unclean hands.” 	It based its
finding that Ms. Hill had unclean hands on her failure to produce
tax returns showing she had paid income taxes on the money that
Defendants converted. 	Ms. Hill argues that the district court
erred as a matter of law when it placed the burden of proving
clean hands on her. 	She argues that since unclean hands was an
affirmative defense raised by Defendants, they had the burden of
proving it. 	She also argues that they did not meet that burden
and therefore punitive damages should have been awarded. 	We find
that the district court erred when it placed the burden of
proving clean hands on Ms. Hill.
¶20 	We review for correctness whether the doctrine of
unclean hands applies to Ms. Hill’s claim for punitive damages.
RHN Corp. v. Veibell, 2004 UT 60, ¶ 35, 96 P.3d 935. 	We hold
that it does not and therefore reverse the district court’s
ruling.
¶21 	The district court determined that “[Ms.] Hill has not
come before the court with clean hands.” 	The court justified
this ruling with the statement: 	“The clean hands doctrine finds
expression in the maxim that ‘he who seeks equity must do
equity.’” (quoting Rosenthyne v. Matthews-McCulloch Co., 168 P.
957, 960 (Utah 1917)).
¶22 	Utah courts have long recognized that “he who seeks
equity must do equity.” 	Horton v. Horton, 695 P.2d 102, 107
(Utah 1984). 	We do not question the legitimacy of these
statements. 	Our concern lies instead with the application of the
doctrine to Ms. Hill’s claims. 	The district court ruled on six
of Ms. Hill’s causes of action. 	Tellingly, none of the six
rulings were made on equitable grounds. 	Ms. Hill only sought
equitable relief as an alternative to her fraudulent conversion
claim, and the district court did not address her alternative
claim because it found that Defendants converted Ms. Hill’s
money. 	Therefore, the hygiene of her hands was never at issue.
Because the court never invoked equitable powers to award Ms.
Hill damages, it was not justified when it turned to an equitable
principle to defeat her claims for punitive damages and attorney

Nos. 20030980, 20060752 	8
fees. 	As we recently noted, “The right to an equitable remedy is
an exceptional one, and absent statutory mandate, equitable
relief should be granted only when a court determines that
damages are inadequate and that equitable relief will result in
more perfect and complete justice.” 	Ockey v. Lehmer, 2008 UT 37,
¶ 44, 189 P.3d 51 (alteration omitted) (internal quotation marks
omitted). 	Based on the foregoing, we need not reach the question
of whether the district court properly assigned to Ms. Hill the
burden of proving clean hands. 	We find that because Ms. Hill was
not awarded damages on equitable grounds, the district court
erred in denying Ms. Hill punitive damages based on unclean
hands.
II. 	THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN REFUSING TO
HOLD DEFENDANTS JOINTLY AND SEVERALLY LIABLE
¶23 	Ms. Hill urges us to reverse the district court’s
ruling apportioning liability between Defendants. 	She argues
that Jedrziewski v. Smith requires liability in civil conspiracy
cases to be joint and several and does not allow the apportioning
of liability in such cases. 	2005 UT 85, 128 P.3d 1146. 	This is
a correct reading of Jedrziewski; however, Ms. Hill failed to
preserve this argument below. 	Ms. Hill admits that the issue of
joint and several liability was not preserved below, but she
argues that Jedrziewski’s clarification of the Liability Reform
Act’s applicability presented an exceptional circumstance that
allows us to review the issue despite the lack of preservation.
Alternatively, Ms. Hill argues that even though the apportionment
issue was not preserved, we should reverse the holding of the
district court because it was plain error.
¶24 	Where an argument is not preserved below, we will only
review the issue if exceptional circumstances exist or if the
lower court committed plain error. 	State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346. 	We will examine Ms. Hill’s exceptional
circumstances argument first, followed by her plain error
argument.
¶25 	Exceptional circumstances is an exception to the
preservation requirement that is used infrequently and usually
requires “rare procedural anomalies.” 	State v. Dunn, 850 P.2d
1201, 1209 n.3 (Utah 1993). 	Ms. Hill bases her exceptional
circumstances argument on the court of appeals’ characterization
of our holding in State v. Lopez, 873 P.2d 1127 (Utah 1994). 	In
State v. Irwin, the court of appeals stated that in Lopez, we
“employed the ‘exceptional circumstances’ rubric where a change
in law or the settled interpretation of law colored the failure
to have raised an issue at trial.” 	924 P.2d 5, 10 (Utah Ct. App.

9 	Nos. 20030980, 20060752
1996). 	In Lopez, we found that exceptional circumstances existed
that allowed us to address an argument raised by the defendant
for the first time on appeal; however, the procedural posture of
Lopez was more unusual than a failure to object to an action by
the district court. 	Lopez, 873 P.2d at 1134 n.2. 	The defendant
in Lopez successfully moved to suppress evidence obtained
following a traffic stop. 	He based his motion to suppress on an
argument that the stop was an unconstitutional pretext stop under
the Fourth Amendment of the United States Constitution. 	The
state petitioned for interlocutory review, and the court of
appeals maintained the pretext stop doctrine. 	The defendant and
the state both filed petitions for writ of certiorari, the state
arguing that the pretext stop doctrine should be rejected and the
defendant arguing that it should be adopted under the Utah State
Constitution.
¶26 	The defendant had not previously raised the argument
that the pretext stop doctrine should be adopted under the Utah
Constitution, and the state argued that the defendant waived the
argument by failing to raise it below. 	We allowed the defendant
to raise the argument for the first time on appeal because of
exceptional circumstances, noting that
[a]t the time of the suppression hearing, the
pretext doctrine was the controlling rule of
Fourth Amendment law as interpreted by the
court of appeals. 	Defendant had no reason to
argue that the doctrine be adopted under
article I, section 14 until the State
challenged the doctrine on appeal. 	Likewise,
arguments under article I, section 24 did not
appear applicable until the court of appeals
ruled that “equal protection policies
constrain us to uphold the pretext doctrine.”
Id. (quoting State v. Lopez, 831 P.2d 1040, 1046 (Utah Ct. App.
1992)).
¶27 	The circumstances in this case are not exceptional in
the way that the circumstances in Lopez were. 	In Lopez, the
settled interpretation of the law favored the defendant. 	There
was no need for him to argue for a different interpretation of
the law below because the existing interpretation produced the
outcome he desired. 	The defendant had no reason to raise a state
constitutional argument until it became apparent that the settled
law on which he had relied was under attack. 	In contrast, in Ms.
Hill’s case, the interpretation of the law that the district

Nos. 20030980, 20060752 	10
court used did not favor Ms. Hill. 	She had every reason to argue
for a different allocation of damages but did not.
¶28 	Furthermore, although there was case law stating that
joint and several liability was abolished for codefendants on
fault grounds, Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 25, 48
P.3d 941, prior to Jedrziewski, there was no case law that
specifically stated that civil conspiracy claims were governed by
the LRA. 	In fact, joint and several liability for civil
conspiracy was what the defendants in Jedrziewski were trying to
avoid when they advanced their argument that “the LRA preempted
the common law doctrine of civil conspiracy.” 	Jedrziewski, 2005
UT 85, ¶ 10. 	Since there was no clear statement regarding the
LRA’s application to civil conspiracy claims at the time judgment
was entered in Ms. Hill’s case, she could have advanced the same
argument that ultimately carried the day in Jedrziewski, that the
LRA has no effect on a civil conspiracy cause of action. 	That
she failed to recognize that such an argument existed does not
present an exceptional circumstance.
¶29 	Finally, Ms. Hill’s argument that an exceptional
circumstance exists because Jedrziewski changed a settled
interpretation of law fails because that argument is premised on
an assumption that the district court relied on the LRA in
refusing to impose joint and several liability. 	No such reliance
is apparent in the district court’s order. 	In the section of the
order titled Measure of Damages, the district court finds
Defendants jointly liable for $1.54 million plus prejudgment
interest and costs, but it makes no mention of the LRA. 	As there
was no mention of the LRA, Ms. Hill had no reason to believe that
the award of damages was constrained by the LRA and could have
argued for joint and several liability under the common law civil
conspiracy cause of action.
¶30 	As Ms. Hill’s failure to raise the issue of joint and
several liability is not excused by an exceptional circumstance,
we will examine whether it was plain error for the district court
to apportion liability.
[T]o establish the existence of plain error
and to obtain appellate relief from an
alleged error that was not properly objected
to, the appellant must show the following:
(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a
more favorable outcome for the appellant, or

11 	Nos. 20030980, 20060752
phrased differently, our confidence in the
verdict is undermined.
Dunn, 850 P.2d at 1208-09. 	Our holding in Jedrziewski makes
clear that an error occurred in Ms. Hill’s case and that
liability for civil conspiracy should have been joint and
several. 	Also, although it may be possible to recover from Mr.
Putvin and Mr. Matthews personally and through their businesses,
it would be more favorable to Ms. Hill to be able to recover from
all of the defendants who participated in the civil conspiracy
against her. 	Therefore, the key question in this case is whether
the error should have been obvious to the district court.
¶31 	As Ms. Hill points out, prior opinions have included
general statements that the LRA abolished joint and several
liability. 	See Peterson, 2002 UT 42, ¶ 25; Sanns v. Butterfield
Ford, 2004 UT App 203, ¶ 13, 94 P.3d 301; Nat’l Serv. Indus.,
Inc. v. B.W. Norton Mfg. Co., Inc., 937 P.2d 551, 554-55 (Utah
Ct. App. 1997). 	The case of Field v. Boyer Co., 952 P.2d 1078
(Utah 1998), somewhat confused the issue of the application of
the LRA, as demonstrated by both parties in Jedrziewski claiming
that Field supported their positions on whether the LRA applied
to civil conspiracy. 	Jedrziewski, 2005 UT 85, ¶¶ 17-24
(describing the “riddle of Field v. Boyer” presented by the
plurality opinion in that case and determining that the question
of whether the LRA applies to intentional torts had not yet been
decided). 	Although in Jedrziewski we held that the LRA did not
apply to civil conspiracy, given the confusion caused by Field,
that conclusion was not so apparent that it should have been
obvious to the district court. 	Even though the district court
did not expressly state that it was relying on the LRA in
apportioning liability, the state of the law regarding the LRA’s
application did not make it obvious that the LRA did not apply to
civil conspiracy; therefore, the district court did not commit
plain error.
¶32 	Because we find that there were no exceptional
circumstances and that the district court did not commit plain
error in apportioning liability, we affirm the district court’s
apportionment of liability.
III. 	THE DISTRICT COURT ERRED IN HOLDING THAT THE AUB’S
ACTIVITIES DID NOT CONSTITUTE A PATTERN OF UNLAWFUL ACTIVITY
¶33 	The Pattern of Unlawful Activity Act, which we will
refer to as the Act, allows a person injured by a pattern of
unlawful activity to bring a civil suit against the parties
engaged in the prohibited conduct even if no criminal action is

Nos. 20030980, 20060752 	12
pursued. 	Utah Code Ann. § 76-10-1605(1) (2003). 	In such a civil
suit, the Act provides for an award of double damages, costs, and
attorney fees to the individual who was injured by the pattern of
unlawful activity. 	Id. § 76-10-1605(1)-(2).
¶34 	Under the Act,
“Pattern of unlawful activity” means
engaging in conduct which constitutes the
commission of at least three episodes of
unlawful activity, which episodes are not
isolated, but have the same or similar
purposes, results, participants, victims, or
methods of commission, or otherwise are
interrelated by distinguishing
characteristics. 	Taken together, the
episodes shall demonstrate continuing
unlawful conduct and be related either to
each other or to the enterprise.
Id. § 76-10-1602(2).
¶35 	Ms. Hill argues that each unlawful act by Defendants in
furtherance of the conversion of her money constitutes an episode
of unlawful activity and therefore a pattern exists. 	Defendants
argue that the conversion of Ms. Hill’s money, though not
accomplished in one single act, was only one episode of criminal
activity and, therefore, does not constitute a pattern of
unlawful activity. 	The district court agreed with Defendants and
held that their actions did not constitute a pattern of unlawful
activity because there was only one episode of criminal activity,
the conversion of Ms. Hill’s money.
¶36 	“[M]atters of statutory construction are questions of
law that are reviewed for correctness.” 	Esquivel v. Labor
Comm’n, 2000 UT 66, ¶ 13, 7 P.3d 777 (internal quotation marks
omitted). 	We therefore give no deference to the district court’s
interpretation of pattern under the Act.
¶37 	The district court relied exclusively on a federal
district court case, Cook v. Zions First Nat’l Bank, 645 F. Supp.
423 (D. Utah 1986), to determine what was required to form a
pattern of unlawful activity. 	In Cook, the federal district
court relied on the United States Supreme Court’s interpretation
of the term pattern as used in the Racketeer Influenced and
Corrupt Organizations Act to interpret the term pattern in the
Utah Act. 	Id. at 425-27. 	Though we have looked in the past to
federal interpretations of RICO provisions when interpreting the

13 	Nos. 20030980, 20060752
Act, the Supreme Court precedent relied upon by the Cook court is
no longer a correct statement of the test for determining whether
a pattern of racketeering exists.
¶38 	Although we are not obligated to give pattern of
unlawful activity the same interpretation as pattern of
racketeering activity under RICO, the extent to which section 76-
10-1602(2) borrows from RICO and cases interpreting the RICO
provision suggests that in this case the terms should be
interpreted to mean the same thing. 	The first sentence under the
Act’s definition of a “pattern of unlawful activity” includes
“engaging in conduct which constitutes the commission of at least
three episodes of unlawful activity, which episodes are not
isolated, but have the same or similar purposes, results,
participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics.” 	Utah Code Ann.
§ 76-10-1602(2). 	The United States Supreme Court in Sedima,
S.P.R.L. v. Imrex Co. recognized that similar language informs
the meaning of “pattern of racketeering activity” under the
federal RICO scheme. 	473 U.S. 479, 497 n.14 (1985) (recognizing
that “conduct forms a pattern if it embraces criminal acts that
have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated
by distinguishing characteristics and are not isolated events”).
In Sedima, the Court also quoted congressional history that
stated that a pattern required “‘continuity plus relationship.’”
Id. (emphasis omitted) (quoting S. Rep. No. 91-617, p. 158
(1969)). 	The continuity plus relationship element was also
adopted as part of the definition of pattern under the Act. 	The
second sentence of Utah Code section 76-10-1602(2) states,
“Taken together, the episodes shall demonstrate continuing
unlawful conduct and be related either to each other or to the
enterprise.” 	It was added to the statutory definition shortly
after the Sedima case. 	Cf. Utah Code Ann. § 76-10-1602(4) (Supp.
1983); Utah Code Ann. § 76-10-1602 (1987). 	As the Legislature
has specifically included the concept of continuity plus
relationship in the Act’s definition of pattern of unlawful
activity in response to the congressional history pointed out in
Sedima, it makes sense to use the Supreme Court’s clarification
of that phrase as the test for whether there is a pattern of
unlawful activity.
¶39 	In H.J. Inc. v. Northwestern Bell Telephone Co., the
Supreme Court clarified what was required for continuity plus
relationship and therefore what constituted a pattern of
racketeering activity under RICO. 	492 U.S. 229 (1989). 	Prior to
H.J., the federal circuit courts used different tests to
determine if a pattern of racketeering activity existed. 	In

Nos. 20030980, 20060752 	14
particular, the Eighth Circuit ruled that “a single fraudulent
effort or scheme is insufficient to establish a pattern of
racketeering activity,” and multiple schemes must be present.
H.J., 492 U.S. at 234-35 (alteration omitted) (internal quotation
marks omitted). 	It held that multiple bribes paid by
Northwestern Bell Telephone Company to the agency in charge of
rate setting, which resulted in the agency setting an
unreasonably high rate, were only in furtherance of one scheme
and therefore did not constitute a pattern of racketeering
activity. 	The Supreme Court reversed. 	It reasoned that proof of
multiple schemes was unnecessary and that “to prove a pattern of
racketeering activity a plaintiff or prosecutor must show that
the racketeering predicates are related, and that they amount to
or pose a threat of continued criminal activity.” 	Id. at 239
(emphasis omitted). 	The Court further stated that “[c]ontinuity
is both a closed- and open-ended concept, referring either to a
closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition.”
Id. at 241 (internal quotation marks omitted). 	Continuity may be
demonstrated “over a closed period by proving a series of related
predicates extending over a substantial period of time,” and if a
RICO action is “brought before continuity can be established in
this way,” continuity can be shown if “the threat of continuity
is demonstrated.” 	Id. at 242 (emphasis omitted).
¶40 	Use of the H.J. test is proper because we previously
upheld a criminal conviction “where the defendant engaged in a
pattern of unlawful activity by participating in seventy-four
wholesale illicit drug transactions with one other person.” 	Alta
Indus., Ltd. v. Hurst, 846 P.2d 1282, 1289 n.14 (Utah 1993); see
also State v. McGrath, 749 P.2d 631, 635-36 (Utah 1988). 	Under
the multiple scheme test, this could have been viewed as one
scheme to wholesale drugs. 	It was not, however, and each sale
was viewed as one episode despite the fact that all the sales
contributed to the same objective of selling drugs. 	McGrath, 749
P.2d at 635-36.
¶41 	The proper test for determining whether there was a
pattern of unlawful activity is whether there was “a series of
related predicates extending over a substantial period of time”
or a demonstrated threat of continuing unlawful activity and not
whether there were multiple schemes. 	H.J., 492 U.S. at 242. 	In
this case, the district court acknowledged that there were
several incidents of unlawful activity. 	It found that “[t]he
defendants made fraudulent misrepresentations, converted Hill’s
money, received stolen property, and conspired to prevent Hill’s
recovery.” 	These acts had a similar purpose in that they were
committed by Defendants in order to keep Ms. Hill’s money for

15 	Nos. 20030980, 20060752
their own uses. 	Similar parties participated in each act and all
of the acts had the same victim, Ms. Hill. 	The acts were related
to one another in that the misrepresentation, conspiracy, and
money laundering were attempts to conceal the theft of Ms. Hill’s
money. 	The unlawful acts occurred over a five-year period, thus
demonstrating continuing unlawful activity. 	Under the proper
test for pattern of unlawful activity, we find that Defendants’
conduct constituted a pattern of unlawful activity. 	Therefore,
we reverse the holding of the district court.
¶42 	In their cross-appeal, Defendants seek attorney fees as
the prevailing party on the Pattern of Unlawful Activity claim.
Since there was in fact a pattern of unlawful activity,
Defendants are not entitled to attorney fees on this issue.
IV. 	THE DISTRICT COURT DID NOT ERR IN DENYING MS. HILL’S RULE
15(b) MOTION
¶43 	Ms. Hill argues that the district court erred in
denying her rule 15(b) motion to amend the pleadings. 	Ms. Hill
moved to amend the pleadings under Utah Rule of Civil Procedure
15(b) to pray for treble damages and attorney fees under Utah
Code section 76-6-412, arguing that the parties impliedly tried
the issue of receiving stolen property because its elements are
essentially the same as the elements of conversion. 	The district
court denied Ms. Hill’s motion. 	First, the district court held
that conversion and receiving stolen property had different
elements, notably, receiving stolen property requires knowledge
that the property is stolen whereas conversion does not require
conscious wrongdoing. 	The district court held that the parties
did not impliedly try the issue of receiving stolen goods because
the question of whether Defendants knew the money was stolen was
never answered. 	Second, the district court held that even if the
elements were the same, Defendants did not impliedly consent to
try the issue because there was no mention of receiving stolen
property or the damages associated with it. 	Finally, the
district court held that the pleadings should not be amended
because Defendants would be prejudiced by a remedy that would
result in significant monetary damages.
¶44 	We review the district court’s application of rule
15(b) for correctness. 	Keller v. Southwood N. Med. Pavilion,
Inc., 959 P.2d 102, 105 (Utah 1998). 	“However, because the trial
court’s determination of whether the issues were tried with all
parties’ implied consent is highly fact intensive, we grant the
trial court a fairly broad measure of discretion in making that
determination under a given set of facts.” 	Id. (internal
quotation marks omitted).

Nos. 20030980, 20060752 	16
¶45 	On appeal, Ms. Hill argues she should have been allowed
to amend the pleadings because the district court found that
Defendants received stolen goods. 	She also points out that she
presented evidence at trial that demonstrated Defendants were
informed that the money was stolen. 	As to the district court’s
second reason for denying her motion, Ms. Hill asserts that
Defendants impliedly consented to try the issue of receiving
stolen property because they presented evidence that they were
unaware Ms. Hill’s money was stolen and were unaware of Mr.
Putvin’s scheme. 	Finally, Ms. Hill urges that the district
court’s consideration of prejudice was improper because
Defendants did not object to the introduction of evidence
regarding receiving stolen property. 	In response, Defendants
assert that while Ms. Hill points out evidence supporting
elements of statutory theft that was introduced without
objection, she fails to provide evidence that the parties
understood the evidence was aimed at the issue of receiving
stolen property.
¶46 	Utah Rule of Civil Procedure 15(b) reads as follows:
When issues not raised by the pleading are
tried by express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised in the
pleadings. 	Such amendments of the pleadings
as may be necessary to cause them to conform
to the evidence and to raise these issues may
be made upon motion of any party at any time,
even after judgment; but failure so to amend
does not affect the result of the trial of
these issues. 	If evidence is objected to at
the trial on the ground that it is not within
the issues made by the pleadings, the court
may allow the pleadings to be amended when
the presentation of the merits of the action
will be subserved thereby and the objecting
party fails to satisfy the court that the
admission of such evidence would prejudice
him in maintaining his action or defense upon
the merits.
¶47 	Rule 15(b) has two parts, one mandatory and one
discretionary. 	Gen. Ins. Co. of Am. v. Carnicero Dynasty Corp.,
545 P.2d 502, 505-06 (Utah 1976). 	Where the court finds that the
issue was tried by implied consent, it must “treat the issues in
all respects as if they had been raised in the pleadings.”

17 	Nos. 20030980, 20060752
Keller, 959 P.2d at 105. 	When an objection is made to evidence
on the ground that it is outside the scope of the pleadings, then
the court may take into account whether amendment will serve the
merits of the action and whether amendment will prejudice the
nonmoving party. 	Gen. Ins. Co., 545 P.2d at 506.
¶48 	Implied consent to try an issue “may be found where one
party raises an issue material to the other party’s case or where
evidence is introduced without objection, where it appear[s] that
the parties understood the evidence [is] to be aimed at the
unpleaded issue.” 	Colman v. Colman, 743 P.2d 782, 785 (Utah Ct.
App. 1987) (first alteration in original) (citation and internal
quotation marks omitted). 	Further, the “test for determining
whether pleadings should be deemed amended under Utah R. Civ. P.
15(b) is whether the opposing party had a fair opportunity to
defend and whether it could offer additional evidence if the case
were [retried] on a different theory.” 	Id. at 785 (internal
quotation marks omitted). 	“[W]hen evidence is introduced that is
relevant to a pleaded issue and the party against whom the
amendment is urged has no reason to believe a new issue is being
injected into the case, that party cannot be said to have
impliedly consented to trial of that issue.” 	Keller, 959 P.2d at
105 (internal quotation marks omitted).
¶49 	Although the district court found in its Amended
Findings of Fact and Conclusions of Law that “[t]he active
concealment by the defendants as to any involvement or knowledge
concerning Hill’s money [is] simply inconsistent with the
defendants’ statements . . . that Putvin’s true purposes were
always unknown to the rest of the defendants,” there was no
finding that Defendants in fact knew the money was stolen. 	Thus,
there was no finding as to whether the knowledge necessary to a
claim of receiving stolen property was present. 	Additionally,
the evidence was relevant to the conversion issue, and since
there was no mention of receiving stolen property, Defendants
would have had no reason to believe that a new issue was being
introduced into the case.
¶50 	We find that the record supports the district court’s
holding that the issue of receiving stolen property was not tried
by implied consent. 	We therefore affirm the district court’s
denial of Ms. Hill’s rule 15(b) motion.
V. 	THE DISTRICT COURT ERRED IN HOLDING THAT THERE WAS ONLY ONE
TRUST DEED
¶51 	Ms. Hill argues that the district court erred in
finding that there was only one assignment of trust deed made to

Nos. 20030980, 20060752 	18
the AUB. 	The district court held that the AUB was liable to Ms.
Hill for $250,000, representing the amount of one trust deed
assigned to Mr. Jenson as sole trustee of the AUB. 	Ms. Hill
argues that the facts do not support this finding and that there
were actually two assignments of trust deed executed on behalf of
the AUB. 	The district court acknowledged that there were two
assignments of trust deed, but it found that they were duplicates
and “not two beneficial interests.” 	In support of this
conclusion, the district court stated that “in the language of
the assignment AUB was to receive 100 payments of $2,500.00,” and
that the monthly payments actually made were only for $2,500, not
the $5,000 that should have been paid if there were two
assignments.
¶52 	We review the district court’s finding of fact for
clear error. 	State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096.
Upon review of the documents in the record, it is clear that
there were two assignments of trust deed, not one.
¶53 	The record contains two documents titled Assignment of
Trust Deed. 	These assignments each reference separate underlying
trust deeds, although both trust deeds are secured by the same
parcel of real property. 	Both assignments were executed on
December 12, 1990, and they both use Exhibit A to describe their
terms. 	Exhibit A states that it is an attachment to “Assignment
of Trust Deed (with reservations) recorded as Entry #5001564 and
Assignment of Trust Deed (with reservations) recorded as Entry
#5001565 executed this 12th day of December, 1990.” 	Although
Exhibit A states identical terms for both assignments, it is
stating terms for two assignments of the right to collect on two
different debts. 	The first assignment assigned an interest in a
trust deed executed on December 5, 1989, securing a debt of
$250,000. 	The second assignment assigned an interest in a trust
deed executed on March 5, 1990, securing a debt of $175,000. 	The
district court appears to have interpreted Exhibit A’s
application to both assignments as requiring only one monthly
payment of $2,500 to cover both assignments. 	In fact, because
Exhibit A is an attachment to both of the assignments, two
monthly payments of $2,500 were required. 	Just because the
attached terms of both assignments were identical does not undo
their status as the assignment of two separate rights to be paid
under two separate trust deeds. 	The AUB’s March deposit slip
included in Ms. Hill’s trial exhibit number fifty-five
illustrates that this was in fact the case. 	It shows that two
checks for $2,500 were received that month.
¶54 	Because the assignments of trust deed reference
distinct trust deeds and deposits were received representing two

19 	Nos. 20030980, 20060752
monthly payments of $2,500, it is clear that the district court
erred in finding that there was only one assignment of trust
deed.
VI. 	THE DISTRICT COURT DID NOT ERR IN DECLINING TO ADDRESS THE
THIRD-PARTY COMPLAINT
¶55 	Defendants brought a cross-appeal alleging that the
district court should have addressed a third-party complaint
against Mr. Shugart and Mr. Jackson and should have apportioned
some of the liability to them. 	The district court held that
since Defendants did not pursue any of their claims against Mr.
Shugart and Mr. Jackson, no liability should be apportioned to
them.
¶56 	To challenge the district court’s finding of fact that
the third-party complaint against Mr. Shugart was not pursued,
Defendants must “marshal the evidence in support of the findings
and then demonstrate that, despite this evidence, the trial
court’s findings are so lacking in support as to be against the
clear weight of the evidence.” 	Gray v. Oxford Worldwide Group,
Inc., 2006 UT App 241, ¶ 8, 139 P.3d 267.
¶57 	In support of their claim that liability should have
been apportioned to Mr. Shugart and Mr. Jackson, Defendants point
out that they filed a third-party complaint against Mr. Shugart
and Mr. Jackson in 1997. 	They also list several facts in the
record that indicate that Mr. Shugart and Mr. Jackson were
involved in transferring Ms. Hill’s money to Mr. Matthews and Mr.
Putvin. 	They do not, however, marshal the evidence in support of
the district court’s finding that the third-party complaint was
not pursued. 	Specifically, they do not discuss Defendants’
failure to mention the third-party complaint in their closing
argument or Defendants’ statement to the district court that Mr.
Shugart is “forgiven and gone, from what we know.” 	The evidence
Defendants proffer in support of their claim that Mr. Shugart and
Mr. Jackson should be apportioned some of the liability does not
demonstrate that the district court’s finding was against the
weight of the evidence. 	At most, the evidence they presented
demonstrates that Mr. Shugart and Mr. Jackson made poor decisions
regarding who to trust with Ms. Hill’s money. 	The evidence
presented does not demonstrate that Defendants pursued claims of
civil conspiracy, conversion, money laundering, fraudulent
misrepresentation, and intentional infliction of emotional
distress against Mr. Shugart and Mr. Jackson.
¶58 	Because the district court’s finding that Defendants
did not pursue the third-party claim is not against the weight of

Nos. 20030980, 20060752 	20
the evidence, we find that the district court did not abuse its
discretion and affirm the holding of the district court.
VII. 	THE DISTRICT COURT’S FINDINGS OF FACT WERE ADEQUATE
¶59 	On cross-appeal, Defendants argue that the district
court failed to make findings of fact and conclusions of law on
their affirmative defenses six through nine, fifteen, twenty-two,
twenty-six, and twenty-seven. 	“Failure of the trial court to
make findings on all material issues is reversible error.”
Romrell v. Zions First Nat’l Bank, N.A., 611 P.2d 392, 394-
95 (Utah 1980).
Although it is error for a court to fail
to make findings on all material issues
raised by the pleadings[,] this does not mean
that the court must negative every allegation
contained in the pleadings. 	It is sufficient
if from the findings it makes there can be no
reasonable inference other than that it must
have found against such allegations.
Patton v. Kirkman, 167 P.2d 282, 283 (Utah 1946).
¶60 	The affirmative defenses on which Defendants allege the
district court failed to make findings of fact and conclusions of
law are the following: 	(a) Ms. Hill’s complaint should be barred
because she has unclean hands; (b) Ms. Hill’s complaint should be
barred because she brought the action in bad faith; (c) the
racketeering claims and the other claims are without merit;
(d) Ms. Hill cannot recover because she participated in the
illegal acts; (e) Ms. Hill’s claims should be dismissed for
failure to join indispensable parties; (f) Ms. Hill’s claims
should be dismissed because she has no personal knowledge of
them; (g) Ms. Hill failed to allege a link or fiduciary
relationship between herself and any of the defendants; and
(h) Ms. Hill has failed to mitigate her damages.
¶61 	The district court’s award of damages to Ms. Hill for
the conversion of her money can result in no conclusion other
than that the district court found against Defendants on their
affirmative defenses of unclean hands and bad faith. 	The
district court addressed the racketeering issue at length; its
refusal to award attorney fees under the Act implies that it
found that Defendants were not the prevailing party. 	By finding
that Ms. Hill could recover, the district court impliedly found
that Ms. Hill had not participated in the illegal acts. 	Also, by
allowing Ms. Hill’s claims to proceed to trial, the district

21 	Nos. 20030980, 20060752
court also impliedly ruled on Defendants’ affirmative defenses of
failure to join an indispensable party and lack of personal
knowledge of the claims. 	The district court’s holding that
Defendants made fraudulent misrepresentations to Ms. Hill can
result in no conclusion but that there was a link between Ms.
Hill and Defendants. 	Finally, the district court’s award of the
full amount of damages claimed requires that it found that Ms.
Hill had no obligation to mitigate her damages. 	By making the
findings that it did, the district court impliedly ruled on the
affirmative defenses raised by Defendants.
¶62 	Because the district court’s findings support no
inference other than that it found against Defendants’
affirmative defenses, we find its findings of fact and
conclusions of law were adequate.
VIII. 	DEFENDANTS’ CLAIM THAT THE AWARD OF PREJUDGMENT INTEREST
WAS IN ERROR WAS NOT PRESERVED
¶63 	Defendants argue that the district court erred in
awarding Ms. Hill prejudgment interest because there was no
contractual basis for Ms. Hill’s damages.
¶64 	“As a general rule, claims not raised before the trial
court may not be raised on appeal.” 	State v. Cruz, 2005 UT
45, ¶ 33, 122 P.3d 543 (internal quotation marks omitted).
¶65 	Below, Defendants objected to the district court’s
award of prejudgment interest, but only on the grounds that the
district court could not determine the amount of damages with
specificity because it was unclear when Defendants had received
the money or the amount of money actually received. 	Defendants
never objected to application of the statute on the grounds that
there was no underlying contract; therefore, Defendants failed to
preserve their claim, and we will not address its merits.
IX. 	THE DISTRICT COURT DID NOT ERR IN AWARDING PRINCIPAL DAMAGES
OF $30,000 AGAINST THE AUB
¶66 	Defendants argue that the district court incorrectly
awarded principal damages against the AUB in the amount of
$30,000. 	They allege that trial exhibit number sixty-three
demonstrates that the AUB only received $20,000 and not the
$30,000 found by the district court.
¶67 	We will not set aside a lower court’s findings of fact
unless they are clearly erroneous. 	Chen v. Stewart, 2004 UT 82,
¶ 19, 100 P.3d 1177. 	“In order to establish that a particular

Nos. 20030980, 20060752 	22
finding of fact is clearly erroneous, an appellant must marshal
the evidence in support of the findings and then demonstrate that
despite this evidence, the trial court’s findings are so lacking
in support as to be against the clear weight of the evidence.”
Id. (internal quotation marks omitted).
¶68 	Trial exhibit number sixty-three is the only piece of
evidence Defendants provide to support their argument that the
AUB did not receive $30,000 of Ms. Hill’s money. 	They do not
marshal the evidence that supported the district court’s
conclusion. 	On its own, the exhibit only shows that the AUB
received a minimum of $20,000. 	Defendants fail to present any
evidence that the extensive trial record in this case does not
support the district court’s finding that the AUB received
$30,000.
¶69 	Because Defendants failed to marshal the evidence to
show that the district court’s holding was against the clear
weight of the evidence, we affirm the district court’s award of
damages against the AUB.
CONCLUSION
¶70 	On Ms. Hill’s appeal of the district court’s holding
that punitive damages could not be awarded because she had
unclean hands, we hold that application of the equitable doctrine
of unclean hands was in error when damages were not awarded based
on equity and reverse the holding of the district court. 	On Ms.
Hill’s claim that the district court erred in apportioning
damages, we hold that she failed to preserve the argument and
that neither exceptional circumstances nor plain error excused
this failure. 	On Ms. Hill’s claim that the district court erred
in holding that there was no pattern of unlawful activity under
the Act, we hold that there was a pattern and reverse the holding
of the district court. 	We also find that the district court did
not err in denying Ms. Hill’s rule 15(b) motion. 	On Ms. Hill’s
final issue, that the district court erred in holding that there
was an assignment of only one trust deed, we hold that the
district court clearly erred and that two trust deeds were
assigned.
¶71 	On Defendants’ issues on cross-appeal, we find that the
district court did not err in declining to address the third-
party complaint and that its findings of fact and conclusions of
law were adequate. 	We also find that Defendants failed to
preserve their argument that prejudgment interest should not be
awarded because there was no underlying contract and that they

23 	Nos. 20030980, 20060752
failed to marshal the evidence on their claim that the award of
$30,000 in damages against the AUB was in error.
¶72 	Based on our conclusions above, we remand this case to
the district court for action consistent with this opinion.
---
¶73 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.