Giusti v. Wentworth

2009 UT 2
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Stephen A. Giusti, 	Nos. 20070648
Plaintiff, Appellant, and 	20070720
Cross-Appellee,
v.
Sterling Wentworth Corporation,
a Utah corporation; SunGard
Data Systems; John Hyde; and
Paul Erickson; 	F I L E D
Defendants, Appellees, and
Cross-Appellants. 	January 16, 2009
---
Third District, Salt Lake
The Honorable L. A. Dever
No. 000905359
Attorneys: 	Kathryn Collard, Salt Lake City, for plaintiff
Lois A. Baar, Cecilia M. Romero, Salt Lake City,
Laurence S. Shtasel, Philadelphia, PA, for defendants
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Sterling Wentworth Corporation (“SWC”) terminated
Stephen A. Giusti’s employment. 	Giusti sued, asserting six
claims against SWC and its parent corporation SunGard: 	(1)
fraudulent inducement, (2) breach of contract, (3) breach of the
implied covenant of good faith and fair dealing, (4) promissory
estoppel (claims two through four, collectively, the “contract
claims”), (5) tortious interference and defamation, and (6)
intentional infliction of emotional distress.
¶2 	Between January 2001 and November 2006, all of Giusti’s
claims were resolved. 	Giusti voluntarily dismissed his claim for
intentional infliction of emotional distress. 	The district court
dismissed defendant SunGard for lack of personal jurisdiction
and, in a series of orders, granted SWC’s motion for summary

1 See Chapman v. Primary Children’s Hosp., 784 P.2d 1181,
1182-83 (Utah 1989).
Nos. 20070648, 20070720 	2
judgment on each of Giusti’s remaining claims. 	The court then
denied SWC’s motion for attorney fees and limited its recovery of
costs to $55.
¶3 	Giusti appeals, claiming that the district court erred
in dismissing SunGard for lack of personal jurisdiction and in
granting summary judgment to SWC on each of his claims.
¶4 	SWC asserts that Giusti’s appeal was untimely and that
we therefore lack jurisdiction to consider it. 	SWC also cross-
appeals, claiming that the district court erred in denying it
attorney fees and in limiting its recovery of costs to $55.
¶5 	We conclude that Giusti’s appeal was timely. 	We also
hold that the district court was correct in granting summary
judgment to SWC on each of Giusti’s claims, and therefore, we do
not reach the issue of whether SunGard was properly dismissed for
lack of personal jurisdiction. 	We further conclude that the
district court correctly denied SWC’s claim for attorney fees and
correctly limited its request for costs. 	We thus affirm each of
the district court’s decisions.
BACKGROUND
¶6 	In reviewing a grant of summary judgment, we view the
facts in the light most favorable to the nonmoving party. 1
Applying that standard, we recite the facts as follows. 	In
February 1999, SunGard, a computer software and services company
incorporated in Delaware, purchased, as a wholly owned
subsidiary, SWC, a Utah corporation located in Salt Lake City.
During the fall of 1999, John Hyde and Paul Erickson--SWC’s
President and Vice President of Operations, respectively--
recruited Giusti for the position of Vice President of Sales.
¶7 	At the time of his recruitment, Giusti was employed as
Senior Vice President of Marketing at Cambric Corporation in Salt
Lake City. 	He had an annual base salary of $125,000, which was
due to increase to $135,000 on January 1, 2000. 	He also had an
$800 per month car allowance, other benefits, and had received
the first $25,000 of a $100,000 performance bonus, the remainder
to be paid in installments based on Cambric’s financial
performance and Giusti’s performance.
¶8 	Giusti claims that, during negotiations, he and Hyde
orally agreed that Giusti would be guaranteed twelve months of

3 	Nos. 20070648, 20070720
employment at SWC and that this guaranty was incorporated into an
offer letter (“November offer letter”). 	Giusti signed and
returned the November offer letter to SWC and began work as Vice
President of Sales on December 1, 1999.
¶9 	According to Giusti, a few days after beginning work,
Pat Black, the Human Resources Director at SWC, brought into
Giusti’s office the Sterling Wentworth Employment Agreement (“SWC
employment agreement” or “employment agreement”) for him to sign.
The SWC employment agreement provided that Giusti’s employment
could be terminated at any time “with or without cause.” 	Giusti
claims that he told Black that this provision did not apply to
him per his agreement with Hyde, and that, in reply, Black
informed him that she had no knowledge of such an arrangement and
that he was required to sign the form so she could process his
benefit enrollment. 	Giusti signed the SWC employment agreement
on December 6, 1999.
¶10 	Giusti claims that, within his first two weeks of
employment at SWC, he observed a high level of organizational
chaos within the company and confronted Hyde, questioning him
about his previous representations that SWC and its client
revenue base were strong. 	Giusti asserts that, in response, Hyde
promised him a new level of compensation. 	Hyde amended the
November offer letter to reflect this change, and the change
appeared in a letter dated December 13, 1999 (“December
contract”). 	Where the November offer letter provided that Giusti
would receive a “1% override of revenue produced by the sales
people you manage,” the December contract provided that he would
receive “1% on corporate revenue.” 	This change was handwritten
on the December version of the November offer letter. 	Both
parties initialed the change.
¶11 	On April 26, 2000, Giusti indicated to SWC’s financial
personnel that he might exercise his one-time election to move
from the monthly subsidy plan to the commission and override plan
whereby he would receive a 1% override on all corporate sales as
promised to him in the December contract. 	Within a few days, and
after only five months of employment at SWC, Giusti’s employment
was terminated.
¶12 	Giusti filed suit on July 10, 2000, claiming six causes
of action against SWC and SunGard: 	(1) fraudulent inducement of
employment, (2) breach of contract, (3) breach of the implied
covenant of good faith and fair dealing, (4) promissory estoppel,
(5) tortious interference and defamation, and (6) intentional
infliction of emotional distress.

2 This ruling was confirmed in an order dated September 3,
2003.
3 Giusti’s counsel, Kathryn Collard, submitted an affidavit
with her brief. 	In it, she recounts her conversations with the
district court clerks who, according to Collard, informed her
that the judge wanted Collard to prepare the July order for
entry. 	SWC claims that this affidavit should be stricken as
beyond the record on appeal. 	In reaching our conclusion that
Giusti’s appeal was timely, we did not rely on the contents of
that affidavit. 	Nor does the existence of the affidavit or its
contents affect our analysis in any way. 	Thus, we decline to
(continued...)
Nos. 20070648, 20070720 	4
¶13 	Between January 2001 and November 2006, all six of
Giusti’s claims were resolved in SWC’s favor. 	In January 2001,
the district court dismissed defendant SunGard for lack of
personal jurisdiction. 	In March 2002, the court granted SWC’s
motion for summary judgment on Giusti’s three contract claims. 2
In April 2003, Giusti voluntarily dismissed his claim for
intentional infliction of emotional distress. 	In September 2005,
the court granted SWC’s motion for summary judgment on Giusti’s
tortious interference and defamation claims. 	In November 2006,
the court dismissed Giusti’s claim for fraudulent inducement, his
only remaining claim. 	The November 2006 order (“November order”)
was entitled “Order Granting Summary Judgment and Dismissal of
Plaintiff’s Complaint with Prejudice” and contained the following
language:
[H]aving made a Minute Entry/Order dated
April 21, 2006, containing the Court’s
thinking and its decision on the matter, now,
the Court HEREBY FINDS, ADJUDGES, and ORDERS
AND DECREES that: 	Summary Judgment is
GRANTED on Plaintiff’s claim for fraudulent
inducement and Plaintiff’s Complaint, in its
entirety, is DISMISSED WITH PREJUDICE.
¶14 	The November order also provided that SWC could submit
a request for attorney fees. 	In December 2006, SWC submitted its
motion for attorney fees, and the court denied the request in a
final order dated June 8, 2007 (“June order”). 	A separate
judgment, combining the November and June orders, was entered on
July 10, 2007 (“July judgment”).
¶15 	The parties dispute some of the events that followed
the entry of the June order and led up to the entry of the July
judgment. 3 	It is undisputed that Giusti’s counsel prepared for

3 (...continued)
reach the issue of whether the affidavit was beyond the record on
appeal.
4 Utah Rule of Appellate Procedure 4(a) requires appeals to
be filed “within 30 days after the date of entry of the judgment
or order appealed from.”
5 Swan Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22,
¶ 16, 134 P.3d 1122 (citation and internal quotation marks
omitted); see also Fenn v. Mleads Enters., Inc., 2006 UT 8, ¶ 2,
137 P.3d 706.
6 Utah R. Civ. P. 56(c).
5 	Nos. 20070648, 20070720
entry a final judgment combining the contents of the November and
June orders. 	The district court entered that judgment on July
10, 2007. 	Giusti filed his notice of appeal on August 6, 2007.
¶16 	SWC argues that Giusti’s appeal was ripe as of June 8,
2007, the date of the final order denying attorney fees, because
“Plaintiff’s Complaint had already been dismissed in its entirety
. . . and Defendants’ fee request had been denied.” 	According to
SWC, Giusti’s appeal, filed on August 6, 2007--well over 30 days
later--is therefore untimely. 4
¶17 	Giusti, on the other hand, contends that his appeal was
timely because, according to Utah Rule of Civil Procedure
7(f)(2), the July judgment was necessary and the appeal period
did not begin running until the July judgment was entered on July
10, 2007.
¶18 	Because the parties dispute which decision--the June
order or the July judgment--triggered the appeal period, as a
threshold matter, we must address that question to determine
whether Giusti’s appeal was timely. 	We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j) (2008).
STANDARDS OF REVIEW
¶19 	“We review a district court’s decision to grant summary
judgment for correctness,” giving no deference to the court
below. 5 	Summary judgment is appropriate if there is “no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” 6

7 Paul deGroot Bldg. Servs., LLC v. Gallacher, 2005 UT 20, ¶
18, 112 P.3d 490.
8 Young v. State, 2000 UT 91, ¶ 4, 16 P.3d 549.
9 2007 UT 43, ¶ 4, 162 P.3d 1097.
10 Giusti also argues that rule 54(b) of the Utah Rules of
Civil Procedure applies to save his claim from a challenge to its
timeliness. 	Because we hold that rule 7(f)(2) controls this
issue, we do not address Giusti’s arguments based on rule 54(b).
Nos. 20070648, 20070720 	6
¶20 	We review a district court’s denial of attorney fees
for correctness, 7 while we review a district court’s denial of
costs for abuse of discretion. 8
ANALYSIS
¶21 	We first discuss whether Giusti’s appeal was timely.
Because we conclude that it was, we then discuss Giusti’s claim
that the district court erred in granting summary judgment to SWC
on Giusti’s (1) contract claims, (2) fraudulent inducement claim,
and (3) tortious interference claim. 	We affirm the district
court’s grant of summary judgment on all issues, and we therefore
do not reach Giusti’s claim that the district court erred in
dismissing SunGard for lack of personal jurisdiction.
¶22 	Finally, we discuss the issues raised in SWC’s cross-
appeal: 	that the district court erred in denying SWC attorney
fees and in limiting its recovery of costs to $55. 	We affirm the
district court’s decision on this issue as well.
I. 	GIUSTI’S APPEAL WAS TIMELY
¶23 	In arguing that his appeal was timely, Giusti relies on
rule 7(f)(2) of the Utah Rules of Civil Procedure. 	That rule,
along with our recent holding in Code v. Utah Dep’t of Health,9
establish that the July judgment was necessary, and therefore,
Giusti’s appeal was timely. 10
¶24 	Giusti contends that under rule 7(f)(2) his appeal was
timely because the rule requires that a separate order--in
addition to the November and June orders--be entered. 	Rule
7(f)(2) provides that
[u]nless the court approves the proposed
order submitted with an initial memorandum,
or unless otherwise directed by the court,

11 Utah R. Civ. P. 7(f)(2).
12 Id.
7 	Nos. 20070648, 20070720
the prevailing party shall, within fifteen
days after the court’s decision, serve upon
the other parties a proposed order in
conformity with the court’s decision.
Objections to the proposed order shall be
filed within five days after service. 	The
party preparing the order shall file the
proposed order upon being served with an
objection or upon expiration of the time to
object. 11
¶25 	Giusti argues that because “no order in conformity with
the district court’s [June order] was submitted by either party,”
the appeal period was not triggered until the entry of such an
order in the form of the July judgment. 	The plain language of
the rule, along with our decision in Code, support Giusti’s
argument.
¶26 	Rule 7(f)(2) provides in pertinent part that “[u]nless
the court approves the proposed order submitted with an initial
memorandum, or unless otherwise directed by the court, the
prevailing party shall . . . serve upon the other parties a
proposed order in conformity with the court’s decision.” 12
¶27 	The rule is clear. 	A prevailing party shall prepare
for entry a proposed order in conformity with the court’s
decision. 	There are only two exceptions to this mandate. 	First,
if the court approves a proposed order that is submitted with an
initial memorandum, then no additional order is necessary.
Second, if the court directs that no additional order is
necessary, then none is.
¶28 	In this case, neither exception was satisfied. 	No
proposed order was submitted with an initial memorandum, and the
court did not direct the parties that no additional order was
necessary. 	The court did not, for example, tell the parties that
its June order was final for purposes of appeal and that no
additional order need be prepared. 	In the absence of such a
directive, rule 7(f)(2) could only be satisfied if one of the
parties prepared an order for entry. 	The burden was on SWC, as
the prevailing party, to prepare the order. 	When SWC failed to
meet its burden, Giusti acted appropriately in preparing the

13 Code, 2007 UT 43, ¶ 7 (when the prevailing party fails to
prepare an order for entry according to rule 7(f)(2), “any party
interested in finality--generally, the nonprevailing party--may
submit an order”).
14 Id.
15 Id. ¶ 1.
16 Id.
17 Id. ¶ 2.
18 Id. ¶ 4.
19 Id. ¶ 6 (emphases added).
Nos. 20070648, 20070720 	8
order, 13 and the court entered it on July 10. 	Because the entry
of the July judgment satisfied the requirements of rule 7(f)(2),
the July judgment triggered the appeal period, and Giusti’s
appeal, taken on August 6, was timely.
¶29 	This result is supported by our recent decision in
Code,14 in which we explained the correct application of rule
7(f)(2). 	In Code, the district court issued a memorandum
decision in January dismissing plaintiff’s claim. 15 	When
defendants, the prevailing party, failed to prepare a separate
order for entry as required by rule 7(f)(2), plaintiff prepared
the order, and the court entered it in February. 16 	Plaintiff
appealed in March, and the court of appeals dismissed her case
for lack of jurisdiction, holding that her appeal was untimely. 17
We reversed and held that “the [February] order, and not the
[January] memorandum decision, constituted the district court’s
entry of judgment for appeal purposes.” 18
¶30 	In our opinion, we emphasized the broad and mandatory
nature of rule 7(f)(2): 	“[a] court should include [an] explicit
direction whenever it intends a document--a memorandum decision,
minute entry, or other document--to constitute its final action.
Otherwise, rule 7(f)(2) requires the preparation and filing of an
order to trigger finality for purposes of appeal.” 19
¶31 	Because the issue in Code turned on whether a
memorandum decision constituted a final judgment, SWC argues that
our holding “is limited to memorandum decisions or minute entries
where finality is not discernible.” 	SWC thus argues that our
mandate in Code does not apply to Giusti because (1) the district
court issued a final order rather than a memorandum decision, (2)

20 Id.
21 Id.
22 We have defined a final judgment as one that “ends the
controversy between the parties.” 	Salt Lake City Corp. v.
Layton, 600 P.2d 538, 539 (Utah 1979).
23 Utah R. App. P. 3(a).
9 	Nos. 20070648, 20070720
the finality of that order was clearly discernable, and (3) the
July judgment was unnecessary because it was “merely a compact
summary of the two prior orders and did nothing more than restate
what had already been resolved in the prior orders.” 	We address
each argument in turn.
¶32 	First, our broad holding in Code is inclusive of all
final district court decisions, regardless of how they are
styled. 	We held that “whenever” a court intends any “document”
to constitute its final action, the court must explicitly direct
that no additional order is necessary. 20 	Otherwise, rule 7(f)(2)
“requires” the preparation and entry of a separate order in
conformity with the court’s decision. 21 	Thus the requirements of
rule 7(f)(2) apply to every final decision issued by a district
court, not just memorandum decisions or minute entries, as SWC
claims.
¶33 	Second, our holding in Code removes the burden from
litigants of discerning when the appeal period has been
triggered. 	SWC argues that litigants retain this burden, and
because the finality of the June order was “discernible,” in that
it “unequivocally ended the controversy between the parties[,]”
the June order triggered the appeal period.
¶34 	SWC is correct that a decision is final when it ends
the controversy between the parties. 22 	SWC is also correct that,
pursuant to rule 3 of the Utah Rules of Appellate Procedure, an
appeal of right may be taken only from “final orders and
judgments.” 23 	But rule 3 does not trump rule 7(f)(2). 	That is,
while rule 3 provides the substantive requirement for a
decision’s finality--that it end the controversy between the
parties--rule 3 does not eviscerate the procedural requirements
of rule 7 for triggering the appeal period once a final decision
is rendered.
¶35 	The rules work in concert: 	pursuant to rule 3, parties
may take an appeal of right only from a final decision. 	And
pursuant to rule 7(f)(2), that decision triggers the appeal

24 Code, 2007 UT 43, ¶ 6 n.1.
25 Id. ¶ 6 (alterations in original) (citation omitted).
Nos. 20070648, 20070720 	10
period only upon the occurrence of one of the following events:
(1) the court approves an order submitted with an initial
memorandum, (2) the court directs that no additional order need
be entered, or (3) a party prepares an order for entry that is
consistent with the court’s final decision. 	It is the entry of
the final order according to rule 7(f)(2) that triggers the
appeal period. 	If the court fails to satisfy rule 7(f)(2)’s
exceptions and if the prevailing party fails to prepare an order
for entry, “the appeal rights of the nonprevailing party will
extend indefinitely.” 24
¶36 	The strict application of rule 7(f)(2) supports the
judicial policy favoring finality, and it prevents the confusion
that often leads--as it has here--to additional litigation when
parties are left to divine when a court’s decision has triggered
the appeal period. 	In Code, we explained that “[w]e see no
benefit to a system in which parties must guess, on a case-by-
case basis, whether a judge’s language in a memorandum decision
‘implie[s],’ ‘invite[s],’ or ‘contemplate[s]’ further action by
the parties.” 25 	While we spoke in terms of a memorandum decision
because that was the issue before us in Code, we take this
opportunity to clarify that the rule’s requirements and the
policy supporting the rule apply to all final decisions,
regardless of how they are styled.
¶37 	We reject SWC’s argument that the July judgment was
unnecessary and therefore the appeal period was triggered by the
June order. 	In this regard, SWC argues that the July judgment
was unnecessary because it was “merely a compact summary of the
[November and June] orders and did nothing more than restate what
had already been resolved in the prior orders.” 	Even if, as SWC
claims, the July judgment was a duplication of the November
and/or June orders, that does not change our analysis that the
July judgment was nevertheless necessary to trigger the appeal
period. 	That is, because the requirements of rule 7(f)(2) were
not satisfied with the November or June order, the July judgment
was the only order that satisfied rule 7(f)(2). 	Therefore, it
triggered the appeal period.
¶38 	Rule 7(f)(2) applies to every final decision issued by
a district court. 	It therefore applies to the June order issued
by the district court in Giusti’s case. 	Because the district
court did not direct that no additional order was necessary, SWC,
as the prevailing party, had the obligation to prepare an order

26 Giusti seeks attorney fees on the ground that SWC’s
motion to dismiss his appeal as untimely was frivolous under Utah
Rule of Appellate Procedure 33(b). 	A frivolous claim under rule
33 “is one that is not grounded in fact, not warranted by
existing law, or not based on a good faith argument to extend,
modify, or reverse existing law.” 	While SWC’s interpretation of
the law is incorrect, we cannot say that its claim was groundless
or made in bad faith. 	Accordingly, there is no basis on which to
award attorney fees to Giusti.
27 While Giusti does not clearly state the particular basis
of each of his contract claims, it appears that his argument is
that SWC (1) breached his employment contract by terminating his
employment after only five months, (2) breached the covenant of
good faith and fair dealing that was implied in the agreement by
terminating his employment early, and (3) should be estopped from
denying its promise of employment given Giusti’s reliance on that
promise.
11 	Nos. 20070648, 20070720
in conformity with the court’s decision. 	When SWC failed to do
so, Giusti acted appropriately in preparing the order, and the
appeal period was triggered when that order, in the form of the
July judgment, was entered on July 10. 	Thus, Giusti’s appeal was
timely. 26
II. 	THE DISTRICT COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT
TO SWC ON EACH OF GIUSTI’S CLAIMS
¶39 	We now review Giusti’s claim that the district court
erred in granting summary judgment to SWC on Giusti’s (1)
contract claims, (2) fraudulent inducement claim, and (3)
tortious interference claim.
A. 	The District Court Did Not Err in Granting Summary Judgment
to SWC on Giusti’s Contract Claims
¶40 	Giusti first argues that the district court erred in
granting SWC’s motion for summary judgment on Giusti’s three
contract claims: 	breach of contract, breach of the covenant of
good faith and fair dealing, and promissory estoppel. 	Each of
these claims is based on Giusti’s assertion that the November
offer letter, operating as an employment contract, guaranteed him
a minimum of twelve months of employment. 27 	Because we hold that
the November offer letter provided no guaranty of employment, the
district court correctly granted summary judgment to SWC on each
of Giusti’s contract claims.

28 See Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008
UT 3, ¶ 15, 178 P.3d 886.
29 Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d
1134 (citations and internal quotation marks omitted).
30 Deep Creek Ranch, 2008 UT 3, ¶ 16.
Nos. 20070648, 20070720 	12
¶41 	Giusti signed three contracts in November and December
1999. 	First, he signed the November offer letter accepting
employment with SWC. 	Second, he signed the December 5 SWC
employment agreement containing an explicit provision that
Giusti’s employment could be terminated “without cause at any
time.” 	Third, Giusti initialed the December 13 contract, which
was a duplication of the November offer letter with only one
change to his compensation scheme.
¶42 	Giusti argues that the November offer letter--and, by
extension, the December contract--contained a provision
guarantying him twelve months of employment with SWC. 	SWC
contends that the November offer letter merely “covered the terms
of Plaintiff’s compensation, including base salary, override,
commissions, the amount of a draw, stock options, vacation, and
benefits.” 	It did not “provide[] him with ‘a minimum term’ of
twelve months employment at SWC.” 	Additionally, SWC argues that
because Giusti signed the SWC employment agreement containing the
at-will provision, he agreed to the at-will nature of his
employment.
¶43 	Because the November offer letter provided no guaranty
of employment, and because Giusti was an at-will employee, SWC
argues that Giusti’s contract claims--all based on his assertion
that he was guaranteed twelve months employment--must fail. 	The
district court agreed, and we affirm.
¶44 	Under basic rules of contract interpretation, courts
first look to the writing alone to determine its meaning and the
intent of the contracting parties. 28 	“If the language within the
four corners of the contract is unambiguous, the parties’
intentions are determined from the plain meaning of the
contractual language, and the contract may be interpreted as a
matter of law.” 29 	Only where there is ambiguity in the terms of
the contract may the parties’ intent “be ascertained from
extrinsic evidence.” 30 	“A contractual term or provision is
ambiguous if it is capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing

31 Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269
(citations and internal quotation marks omitted).
32 Uintah Basin Med Ctr. v. Hardy, 2002 UT 92, ¶ 21, 54 P.3d
1165; see also Evans v. GTE Health Sys. Inc., 857 P.2d 974, 975
(Utah Ct. App. 1993).
13 	Nos. 20070648, 20070720
terms, or other facial deficiencies.” 31 	The question here is
whether the November offer letter is ambiguous such that we may
consider extrinsic evidence, including conversations between
Giusti and Hyde. 	We conclude that it is not ambiguous. 	It reads
as follows:
SWC will also provide you with a monthly
subsidy payment or non-recoverable draw for a
12 month period to allow you to build the
staff in the product area and grow your
personal book of business and start receiving
overrides and commission. 	For the first 12
months of employment SWC will provide you
with a payment of $7,500 per month. 	Your
commission and overrides during that ramp up
period will be applied to the subsidy
payment. 	At anytime during the 12 month
period you can make a one time election to
move from the subsidy plan to the commission
and override plan if you desire. 	(Emphases
added.)
¶45 	This language plainly does not guarantee Giusti’s
employment. 	There is no statement implying that his employment
cannot be terminated or that it is guaranteed for any period.
The language indicates only the level of compensation and
benefits Giusti is to receive during the first twelve months of
his employment, should it last that long. 	The contract does not
guarantee that his employment will last that long. 	Because there
is no ambiguity in the language of the contract, we need not, and
must not, consider extrinsic evidence to determine its meaning.
¶46 	Additionally, in Utah, we presume that employment
contracts are at-will. 32 	When an employer intends to alter the
at-will arrangement and guarantee employment for a specified
period, we require the employer to make that promise clear and
definite: 	“There must be a manifestation of the employer’s
intent [to guarantee employment] that is communicated to the
employee and sufficiently definite to operate as a contract

33 Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1002 (Utah
1991).
34 Evans, 857 P.2d at 978.
35 Giusti also argues that Black fraudulently induced him to
sign the SWC employment agreement by telling him that his
signature was a prerequisite to her processing his benefit
enrollment. 	Giusti presented no evidence that her statement was
fraudulent. 	We therefore decline to address his argument on this
point.
Nos. 20070648, 20070720 	14
provision.” 33 	Otherwise, as the court of appeals has held, “an
employer could never tell a potential employee in a job interview
what was expected of him or her over the next few months or years
without creating [a guaranty of employment] contract.” 34 	Here,
the language in the November offer letter does not guarantee
Giusti employment for twelve months. 	And we will not infer such
a promise where it clearly does not exist.
¶47 	Additionally, a month after signing the November offer
letter, Giusti signed the SWC employment agreement that contained
an at-will employment provision. 	Section 6.2 of the agreement
provides as follows:
6.2 Termination With or Without Cause
Employer may terminate Employee’s employment
with Employer without cause at any time upon
two (2) weeks advance written notice to
Employee.
¶48 	According to Giusti, he reviewed this provision with
Pat Black, the Human Resources Director, and told her that the
provision did not apply to him. 	When Black responded that she
had no knowledge of any other arrangement Giusti may have had
with Hyde, Giusti signed the document. 	He did not strike out any
provision of the agreement or ask to sign it later so that he
could speak with Hyde prior to signing it. 	Given that Giusti is
a sophisticated executive who was savvy enough to recognize and
question the at-will provision, he clearly could have noted his
concerns on the document or refused to sign it until he could
clarify his concerns. 	He did neither. 	And because the terms of
the SWC employment agreement are clear, the conversation he
claims he had with Black is inadmissable parol evidence. 35 	The
SWC employment agreement clearly provides, as does the November
offer letter, that Giusti’s employment was at-will.

36 Utah Rule of Appellate Procedure 24(a)(8)-(9) requires
adequate briefing of the arguments, including, “the contentions
and reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and
parts of the record relied on.”
37 Utah R. Civ. P. 56(c).
38 The elements of a fraud claim include the following:
(continued...)
15 	Nos. 20070648, 20070720
¶49 	Giusti next argues that the November offer letter
supersedes the SWC employment agreement and, therefore, his
employment was not at-will. 	As with his other claims, this claim
is based on Giusti’s assertion that the November offer letter
contained a guaranty of employment. 	Because the November offer
letter contained no such guaranty, this argument fails.
¶50 	Finally, Giusti argues that the district court erred in
dismissing his contract claims that are unrelated to the
termination of his employment. 	He fails, however, to adequately
brief those claims. 36 	His entire argument consists of two
sentences and a footnote containing a six-item laundry list of
Giusti’s allegations against SWC and Hyde. 	We therefore decline
to address this argument.
¶51 	For all the foregoing reasons, the district court did
not err in granting summary judgment to SWC on Giusti’s contract
claims.
B. 	The District Court Did Not Err in Granting Summary Judgment
to SWC on Giusti’s Fraudulent Inducement Claim
¶52 	Giusti next argues that the district court erred in
granting summary judgment to SWC on his claim that SWC
“fraudulently induc[ed] him to leave his secure executive
employment at Cambric and accept employment and employment
contracts at SWC.” 	The district court granted summary judgment
to SWC on this claim because it found that Giusti made “no
showing of damages, a crucial element of [the] claim.” 	The court
was correct.
¶53 	As the party moving for summary judgment, SWC had the
burden of demonstrating that there was no genuine issue of
material fact. 37 	SWC asserted that Giusti had not demonstrated
that he suffered damages--an essential element of his fraudulent
inducement claim--and, therefore, there was no issue of material
fact on the question of damages. 38 	When, as here, the moving

38 (...continued)
(1) a representation; (2) concerning a
presently existing material fact; (3) which
was false; (4) which the representor either
(a) knew to be false, or (b) made recklessly,
knowing that he had insufficient knowledge
upon which to base such representation; (5)
for the purpose of inducing the other party
to act upon it; (6) that the other party,
acting reasonably and in ignorance of its
falsity; (7) did in fact rely upon it; (8)
and was thereby induced to act; (9) to his
injury and damage.
Dugan v. Jones, 615 P.2d 1239, 1246 (Utah 1980) (emphasis added).
39 Eager v. Burrows, 2008 UT 42, ¶ 15, 191 P.3d 9 (internal
citations and quotation marks omitted).
40 Giusti accepted employment at Callware shortly after his
employment was terminated at SWC.
Nos. 20070648, 20070720 	16
party “challenges an element of the nonmoving party’s case on the
basis that no genuine issue of material fact exists, the burden
then shifts to the nonmoving party to present evidence that is
sufficient to establish a genuine issue of material fact.” 39 	The
district court found that Giusti failed to satisfy this burden.
Specifically, the court found that Giusti failed to raise a
genuine issue of material fact regarding his damages, and the
court granted summary judgment to SWC. 	We affirm.
¶54 	Giusti asserts that the district court erred in
measuring his damages by comparing his Cambric compensation with
his post-Cambric compensation. 	Giusti claims that in measuring
his damages, the court should have considered the value of the
SWC employment agreement and awarded him its full value. 	As we
have held, however, the SWC employment agreement was not
breached. 	Therefore, Giusti is not entitled to the benefit of
that bargained-for agreement.
¶55 	Rather, Giusti is limited to those damages necessary to
compensate him for having been, as he claims, fraudulently
induced to leave Cambric. 	Accordingly, the court measured
Giusti’s damages by comparing what he earned at Cambric, in base
salary and commissions, with what he earned at SWC, and later, at
Callware. 40 	Under this measure, if Giusti suffered a loss in
compensation after leaving Cambric, he suffered damages. 	Because
Giusti failed to raise a genuine issue of material fact as to

41 See, e.g., Helmer v. Bingham Toyota Isuzu, 29 Cal. Rptr.
3d 136, 143-44 (Ct. App. 2005); Prokopeas v. Rapp Collins World
Wide, Inc., No 3:03-CV-1994-D, 2004 U.S. Dist. LEXIS 20507, at *2
(N.D. Tex. Oct. 13, 2004).
42 Lokay v. Lehigh Valley Coop. Farmers, Inc., 492 A.2d 405,
410, 411 (Pa. Super. Ct. 1985).
17 	Nos. 20070648, 20070720
whether he incurred such damages, the court correctly granted
SWC’s motion for summary judgment.
¶56 	The approach employed by the district court has been
adopted by other jurisdictions. 41 	In Pennsylvania, for example,
the Superior Court concluded that the plaintiff-employee was
entitled to distinct damages for his fraudulent inducement claim.
The court noted that “[d]amages for fraud are limited to what
losses were immediately and proximately caused by the fraud” and
held that it was the “loss of [the employee’s] salary and
benefits from [his prior employer that] was the injury caused by
appellant’s fraudulent misrepresentation.” 42
¶57 	We agree with this approach and clarify that in the
employment context, damages for fraudulent inducement consist of
the losses that are “immediately and proximately caused” by the
fraud. 	That is, the employee is entitled to recover the
difference between the compensation provided by the employer whom
the employee was induced to leave and the compensation that
follows. 	The district court was correct in applying this measure
to Giusti’s claim.
¶58 	Giusti also argues that, even if the court applied the
correct measure of damages, it erred in calculating those
damages. 	The district court found that Giusti’s employment at
Cambric provided him the following: 	$125,000 annual salary, an
$800 per month car allowance, and a future periodic bonus based
on the company’s economic performance and Giusti’s performance.
The court then compared that compensation with Giusti’s
compensation at SWC, which provided Giusti the following:
$180,000 annual salary plus bonuses and other benefits. 	Finally,
the court reviewed Giusti’s compensation from Callware and found
that it constitutes the following: 	$125,000 annual salary plus
commissions and bonuses.
¶59 	In comparing these figures, the court reviewed the
annual salaries and commission and bonus structures at Cambric,
SWC, and Callware. 	The court concluded that Giusti earned the
same annual salary at Callware as he did at Cambric ($125,000),
and that he earned more at SWC ($180,000) than at Cambric. 	Thus,

43 State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888.
(“[H]armless error is an error that is sufficiently
inconsequential that there is no reasonable likelihood that it
affected the outcome of the proceedings.”).
44 The district court quoted Republic Group v. Won-Door
Corp., 883 P.2d 285, 292 (Utah Ct. App. 1994).
Nos. 20070648, 20070720 	18
he suffered no damages in his annual salary as a result of
leaving Cambric. 	Giusti disputes this finding, claiming that his
base salary at Cambric was due to increase to $135,000 in January
2000. 	Thus, according to Giusti, the court made a $10,000 error
in its calculations.
¶60 	But even if the district court had determined that
Giusti’s annual salary was $135,000 at Cambric, that
determination would not have changed the court’s conclusion that
Giusti suffered no damages. 	That is, Giusti’s annual salary at
SWC was also a factor, and it far exceeded $135,000--it was
$180,000. 	Based on these figures, Giusti earned $45,000 more at
SWC than at Cambric. 	Therefore, even if Giusti earned $10,000
less at Callware than at Cambric ($125,000 versus $135,000
respectively), his total annual salary following his employment
at Cambric still exceeded that of what he earned at Cambric, and
any claimed error in the court’s calculation of his annual salary
was harmless. 43
¶61 	Based on its comparison of Giusti’s bonus and
commission structure at Cambric and Callware, the court rejected
his claim that his bonuses at Cambric far exceeded those at
Callware. 	Giusti claimed that he would have received $75,000 in
bonuses at Cambric. 	The court found that such a claim was
“speculative at best and cannot be proven with requisite
‘reasonable certainty’ because [Giusti’s future bonuses] are tied
to [Cambric’s] future economic performance as well as [Giusti’s]
future performance.” 	As to his commissions at Callware, Giusti
testified only that he received commissions, but that he could
not remember how much.
¶62 	Because Giusti claimed future bonuses at Cambric but
failed to provide current commission figures from Callware, the
court could not accurately compare the numbers to determine
whether Giusti suffered any damages by leaving Cambric. 	And it
correctly held that “[s]ummary judgment is warranted if a
plaintiff fails ‘to supply evidence, which, if accepted as true,
would clearly and convincingly support each element of a fraud
claim.’” 44

45 Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304
(Utah 1982) (citation omitted).
46 See Lichtie v. U.S. Home Corp., 655 F. Supp. 1026, 1028
(D. Utah 1987).
47 See Birkner v. Salt Lake County, 771 P.2d 1053, 1057
(Utah 1989).
48 At his deposition, Hyde claimed that Giusti’s employment
was terminated because Giusti (1) failed to actively drive
(continued...)
19 	Nos. 20070648, 20070720
¶63 	The district court was correct in (1) distinguishing
between breach of contract and fraudulent inducement damages, (2)
measuring damages by comparing Giusti’s Cambric compensation with
his post-Cambric compensation, and (3) granting summary judgment
because Giusti failed to raise a genuine issue of material fact
regarding his damages. 	Therefore, the district court did not err
in granting summary judgment to SWC on Giusti’s fraudulent
inducement claim.
C. 	The District Court Did Not Err in Granting Summary Judgment
to SWC on Giusti’s Tortious Interference Claim
¶64 	Giusti next argues that the district court erred in
granting summary judgment to SWC on Giusti’s tortious
interference claim. 	Giusti claims that “Hyde and Erickson
maliciously and intentionally interfered with [Giusti’s] existing
and prospective economic relations with SWC [by terminating his
employment] for the wholly personal reason of saving their own
jobs and not for any legitimate business purpose of their
employer.” 	The district court correctly rejected this claim.
¶65 	To recover damages for tortious interference, “a
plaintiff must prove (1) that the defendant intentionally
interfered with the plaintiff’s existing or potential economic
relations, (2) for an improper purpose or by improper means, (3)
causing injury to the plaintiff.” 45 	When the defendants are also
employees, however, the plaintiff must establish that the
defendants were acting outside the scope of their employment for
purely personal reasons. 46 	Employees act for purely personal
motives when their actions are in no way connected with the
employer’s interests.47
¶66 	The two sides submitted conflicting evidence as to the
reason for Giusti’s termination. 	SWC cited numerous performance-
based reasons, 48 while Giusti cited non-performance based

48 (...continued)
revenue and close deals for SWC, (2) was not sufficiently
familiar with SWC’s products, (3) created disharmony among the
salesforce who worked for him, and (4) was not effective in
promoting SWC products, training the sales organization, dealing
with customers, helping close deals, or interacting with team
members.
49 See Christensen v. Swenson, 874 P.2d 125, 127 (Utah
1994).
50 The court of appeals has explained that duties within the
scope of employment include those that are “generally directed
toward the accomplishment of objectives within the scope of the
employee’s duties and authority, or reasonably incidental
thereto.” 	Nunez v. Albo, M.D., 2002 UT App 247, ¶ 12, 53 P.3d 2.
51 See Lichtie, 655 F. Supp. at 1027 (“[I]f an agent acts
with mixed motives his or her conduct will be within the scope of
employment[,]” and summary judgment is appropriate.).
Nos. 20070648, 20070720 	20
reasons. 	Specifically, Giusti claims that because SWC failed to
meet its revenue targets for the year, Hyde engaged in a
“malicious plan to divert attention from his own failures to meet
SWC’s revenue targets by blaming Giusti.” 	Based on these claims,
Giusti argues that there was a genuine issue of fact regarding
the motive of Hyde, and therefore, summary judgment was
inappropriate.
¶67 	The district court correctly noted, however, that “when
an employee’s activity is so clearly within the scope of
employment that reasonable minds cannot differ, the court may
decide the issue as a matter of law.” 49
¶68 	Here, the court correctly found that, as high level
executives with the responsibility for the operation of SWC, “the
right to terminate is an activity clearly within the scope of
employment of Erickson and Hyde.” 50 	The court also noted that
even if Hyde had mixed motives for terminating Giusti’s
employment, that does not prevent a grant of summary judgment. 51
¶69 	The district court was correct on all points. 	Giusti
presented no evidence that Hyde and/or Erickson acted beyond the
scope of employment and terminated Giusti’s employment for purely
personal reasons that were in no way connected with their
employer’s interests. 	Thus, Giusti failed to raise a genuine
issue of material fact regarding Hyde’s and Erickson’s motives,

52 The district court quoted Foote v. Clarke, 962 P.2d 52,
54 (Utah 1998).
53 Foote, 962 P.2d at 54.
21 	Nos. 20070648, 20070720
and the court correctly granted summary judgment to SWC on
Giusti’s tortious interference claim.
III. 	THE DISTRICT COURT DID NOT ERR IN DENYING SWC’S REQUEST FOR
ATTORNEY FEES OR IN LIMITING ITS RECOVERY OF COSTS
¶70 	We now address SWC’s cross-appeal, in which it claims
that the district court erred in denying it attorney fees and in
limiting its award of costs to $55. 	We hold that the district
court did not err in either regard. 	We address each argument
below.
A. 	The District Court Did Not Err in Denying SWC Attorney Fees
¶71 	SWC first argues that the district court erred in
denying it attorney fees. 	In its order, the court noted that
“attorney fees in Utah are awarded only as a matter of right
under a contract or statute.” 52 	The court then reviewed section
7.3 of the SWC employment agreement and found that it did not
provide for an award of fees to SWC under the facts of this case.
The court was correct.
¶72 	Section 7.3 provides in relevant part the following:
In the event either party defaults in any of
the terms or provisions of this Agreement the
non-defaulting party shall be entitled to
recover its, his or her reasonable attorney’s
fees and costs incurred, whether or not suit
is commenced or final judgment obtained.
(Emphasis added.)
¶73 	“Fees provided for by contract . . . are allowed only
in strict accordance with the terms of the contract.” 53 	The
terms of section 7.3 require that there be a defaulting party in
order for an award of fees to be triggered. 	The district court
correctly noted--and SWC has never claimed otherwise--that
“[Giusti] is not a defaulting party.” 	The court then ruled that
section 7.3 was never triggered, and therefore, could not serve
as the basis for an award of fees to SWC.
¶74 	On appeal, SWC contends that while the precise terms of
section 7.3 were unmet, SWC is nevertheless entitled to an award

54 2007 UT 26, 160 P.3d 1041.
55 Utah Code Ann. § 78B-5-826 (2008).
56 2007 UT 26, ¶ 19.
57 “[T]he language of the statute is not mandatory but
allows courts to exercise discretion in awarding attorney fees
and costs.” 	Id. ¶ 17.
Nos. 20070648, 20070720 	22
of fees. 	SWC cites Utah Code section 78B-5-826 and our holding
in Bilanzich v. Lonetti, 54 wherein we interpreted and applied
section 78B-5-826.
¶75 	Section 78B-5-826 provides the following:
A court may award costs and attorney fees to
either party that prevails in a civil action
based upon any promissory note, written
contract, or other writing executed after
April 28, 1986, when the provisions of the
promissory note, written contract, or other
writing allow at least one party to recover
attorney fees. 55
¶76 	SWC argues that in Bilanzich, we interpreted this
section broadly to mean that whenever litigation is based on a
writing that contains a provision allowing at least one party to
recover attorney fees, the precise terms of the provision are
irrelevant, and district courts should liberally award fees to
prevailing parties. 	Bilanzich, however, is inapplicable.
¶77 	In Bilanzich, we held that when a contract creates “an
unequal exposure to the risk of contractual liability for
attorney fees,” 56 district courts may apply section 78B-5-826 to
ensure that both parties are subject to the attorney fee
provision. 57 	Here, section 7.3 of the SWC employment agreement
provided attorney fees to the “non-defaulting party.” 	Thus, as
to attorney fees, neither party had a contractual advantage or
assumed more contractual liability than the other; SWC and Giusti
were subject to the provision equally. 	Accordingly, Bilanzich
does not apply. 	SWC is entitled to fees only under the terms of
section 7.3. 	That section requires a defaulting party. 	In this
case, there was none, and the district court correctly denied
SWC’s claim for fees.

58 SWC also argues that it is entitled to costs under
section 7.3 of the SWC employment agreement. 	Because we conclude
that there was no defaulting party, section 7.3 was never
triggered, and we do not address this argument.
59 See, e.g., Pennington v. Allstate Ins. Co., 973 P.2d 932
(Utah 1998).
60 Frampton v. Wilson, 605 P.2d 771, 778 (Utah 1980).
61 See Utah R. Civ. P. 54(d)(2).
23 	Nos. 20070648, 20070720
B. 	The District Court Did Not Err in Limiting SWC’s Recovery of
Costs
¶78 	SWC next argues that the district court erred in
limiting its recovery of costs. 	The district court ruled that
rule 54(d) did not provide for costs except for $55 in witness
costs. 58 	We review the district court’s denial of costs for
abuse of discretion, granting a high degree of deference to the
court’s decision. 	We hold that the court did not abuse its
discretion in limiting SWC’s award of costs. 59
¶79 	Rule 54(d) of the Utah Rules of Civil Procedure
provides in pertinent part that
costs shall be allowed as of course to the
prevailing party unless the court otherwise
directs; provided, however, where an appeal
or other proceeding for review is taken,
costs of the action, other than costs in
connection with such appeal or other
proceeding for review, shall abide the final
determination of the cause.
¶80 	“Costs” as used in rule 54 refers to fees that are paid
to the court, fees that are paid to witnesses, costs that are
authorized by statute, and costs incurred in taking depositions,
subject to the limitation that they were taken in good faith and
appear to be essential for the development and presentation of
the case. 60
¶81 	SWC’s Verified Memorandum of Costs, which it timely
submitted pursuant to rule 54(d), 61 requested total costs of
$13,329.56. 	Of that amount, $2,039.60 was for photocopy costs,
Westlaw charges, and witness fees. 	The remaining amount--
$11,289.96--was for deposition costs for ten individuals,

62 Utah R. Civ. P. 54(d)(1) (emphasis added).
63 Frampton, 605 P.2d at 774.
Nos. 20070648, 20070720 	24
including Giusti, whose deposition was taken over the course of
seven sessions.
¶82 	The court limited SWC’s award to $55 in witness costs
and found that SWC’s request for “copying costs and overnight
delivery charges is not within the definition of costs.” 	Turning
to the deposition costs, the court found that, while SWC’s
depositions were taken in good faith, the case was decided on
legal rather than factual grounds, and therefore, SWC failed to
establish that the extensive deposition of Giusti was “essential
for the development of the case[,] and since there is no method
to parse out what portion may have been essential from the
overall claim, the claim is denied.”
¶83 	SWC argues that due to the factually intensive nature
of Giusti’s claims, all the depositions SWC conducted were
essential to defending against each claim, and the depositions
allowed SWC to “successfully move for dismissal of every one of
[Giusti’s] claims except one that [he] voluntarily dismissed.”
Additionally, SWC points out that the court did not explain why
it denied costs regarding the other nine depositions. 	Thus, it
claims, the district court erred.
¶84 	In reviewing a district court’s denial or award of
costs, we apply a highly deferential standard. 	We also recognize
that rule 54(d) is discretionary: 	“costs shall be allowed as of
course to the prevailing party unless the court otherwise
directs.” 62 	And there are two requirements for awarding
deposition costs: 	the trial court must be persuaded that (1) the
depositions were taken in good faith, and (2) they must appear to
be essential to the development of the case. 63
¶85 	Given these considerations, the district court did not
abuse its discretion in limiting SWC’s award of costs. 	The
district court specifically addressed the two requirements for
awarding deposition costs and found that, while the depositions
were taken in good faith, the court was unpersuaded that the
“extensive length of [Giusti’s] deposition” was necessary.
¶86 	SWC argues that Giusti’s extensive deposition was
necessary because of the factually intensive nature of his claims
and because he was prone to giving long, speech-like answers.
But such an argument is insufficient to demonstrate that the
court abused its discretion. 	The court applied the correct

25 	Nos. 20070648, 20070720
standard, gave a legitimate reason for its decision, and
therefore, did not abuse its discretion. 	We therefore affirm the
court’s decision to limit SWC’s award of costs to $55.
CONCLUSION
¶87 	First, rule 7(f)(2) and our decision in Code
demonstrate that the July judgment was necessary, and therefore,
Giusti’s appeal was timely. 	Second, the district court did not
err in granting summary judgment to SWC on each of Giusti’s
claims: 	(1) his contract claims fail because the November offer
letter did not guarantee Giusti’s employment; (2) his fraudulent
inducement claim fails because Giusti failed to raise a genuine
issue of material fact regarding his damages; and (3) his
tortious interference claim fails because Giusti failed to raise
a genuine issue of material fact regarding Hyde’s and Erickson’s
motives in terminating his employment.
¶88 	Finally, the district court did not err in denying SWC
attorney fees because the SWC employment agreement does not
provide for them on the facts of this case. 	The district court
also did not abuse its discretion in limiting SWC’s award of
costs. 	We therefore affirm each of the district court’s
decisions.
---
¶89 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.