LD III LLC v. Beverly Jean Black Davis

2016 UT App 206

THE UTAH COURT OF APPEALS

LD III LLC,
Appellant,
v.
BEVERLY JEAN BLACK DAVIS,
Appellee.

Amended Opinion1
No. 20140926-CA
Filed September 29, 2016

Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 080400318

Denver C. Snuffer Jr., Steven R. Paul, Daniel B.
Garriott, and Tahnee L. Hamilton, Attorneys
for Appellant
Michael N. Zundel and James A. Boevers, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
J. FREDERIC VOROS JR. and JUSTICE JOHN A. PEARCE concurred.2

1. This Amended Opinion replaces the Opinion in Case No.
20140926-CA issued on July 8, 2016. In response to Appellant’s
petition for rehearing and Appellee’s response thereto, revisions
were made to footnote 4.

2. Justice John A. Pearce began his work on this case as a judge
of the Utah Court of Appeals. He became a member of the Utah
Supreme Court thereafter and completed his work on the case
sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
LD III LLC v. Beverly Jean Black Davis

ORME, Judge:

¶1 LD III LLC appeals the district court’s finding of contempt
and the associated award of damages and attorney fees. We
affirm.

BACKGROUND

¶2 This case and these parties are before us for the third time.
See LD III, LLC v. BBRD, LC (LD III One), 2009 UT App 301, 221
P.3d 867; LD III, LLC v. BBRD, LC (LD III Two), 2013 UT App 115,
303 P.3d 1017. This case has its origins in a real estate purchase
contract entered into in 2007 and LD III’s ensuing lawsuit. Early
in the course of litigation, the defendants sought to enforce a
settlement agreement. LD III argued that no such agreement
existed because there was no meeting of the minds. LD III One,
2009 UT App 301, ¶ 1. The district court granted the defendants’
“motion to enforce the settlement agreement and ordered LD III
to close the real estate transaction.” Id. ¶ 12. LD III appealed, and
we affirmed. Id. ¶ 23.

¶3 In October 2008, prior to our resolution of LD III One, one
of the defendants, Richard W. Davis,3 requested that LD III be
held in contempt for failure to comply with the district court’s
order enforcing the settlement agreement. See LD III Two, 2013
UT App 115, ¶ 2. A convoluted series of court proceedings
ensued, during which our decision in LD III One issued, and at
the end of which the district court indicated “that it had
previously found LD III in contempt” and awarded damages in
favor of Davis. LD III Two, 2013 UT App 115, ¶¶ 2–10. LD III
again appealed, and we reversed, concluding that the “contempt
ruling against LD III deprived LD III of its due process rights to

3. Davis is now deceased. The personal representative of his
estate, Beverly Jean Black Davis, replaces him in this appeal.

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confront witnesses and present evidence and testimony, and
[that] the district court failed to enter adequate factual findings
on LD III’s knowledge, ability to comply with the district court’s
order, and intentional failure to do so.” Id. ¶ 21. We remanded
for further proceedings. Id.

¶4 In April 2014, the district court held an evidentiary
hearing, and in June 2014, the court entered findings of fact and
conclusions of law in accordance with our instructions in LD III
Two. See id. ¶ 20. The district court found that on September 23,
2008, it had entered a verbal order granting the motion to
enforce the settlement agreement and requiring LD III to comply
with that agreement (the September 23 order), which also
required LD III to complete its closing obligations by September
30, 2008. The district court further found that the terms of the
September 23 order were memorialized in a written order that
was served on LD III on September 23, 2008.

¶5 The written order stated, “If LD III does not close the real
estate transaction by September 30, 2008, the Court shall quiet
title to the subject real property and water rights in Davis.” The
district court commented in its June 2014 findings that “*b+y
advising LD III of a consequence that would follow if it failed to
comply with *the district court’s+ Order, the Court did not mean
to give LD III an option not to comply and this was made clear
to LD III.”

¶6 The district court’s June 2014 findings also addressed
LD III’s knowledge and understanding of the September 23
order. LD III’s attorneys received an email from opposing
counsel stating, “We are assuming that LD III will close by
September 30, as ordered by the Court. If not, LD III will be in
contempt of court and we will seek appropriate remedies, along
with the remedy set forth in the order.” This was just one of
several communications between the parties that addressed the

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requirements of the September 23 order and the consequences if
LD III failed to comply.

¶7 In October 2008, LD III filed a motion to stay pending the
appeal in LD III One. At a hearing that same month, the district
court “observed that because LD III had been ordered to close by
September 30, 2008, had failed to do so, and had not sought to
stay the order until after the September 30 deadline had expired,
LD III could be subject to a contempt citation.” The district court,
in its June 2014 findings, determined that LD III clearly
understood that Davis “could be damaged by a failure to close
and, if damage was later proven, that LD III would stand liable
for the same” and concluded that “*t+here was no reasonable
basis . . . to believe otherwise.” So while the district court
“granted a stay pending appeal,” it “did not make the stay
retroactive so as to purge LD III’s contempt for earlier refusing
to close as ordered.”

¶8 The June 2014 findings explicitly state “that LD III knew
and understood that the September 23 order required it to close
by September 30, 2008.” Especially in light of the fact that LD III
had originally objected to the quiet title portion of the written
order, the district court further found that “*t+here was no
reasonable basis for doubt about the meaning of the September
23 Order, and LD III could not reasonably rely, and in fact did
not actually rely, upon the quiet title provision as an alternative
acceptable to this Court if LD III refused to close by September
30, 2008 as ordered.”

¶9 The district court then turned its attention to LD III’s
ability to comply with the September 23 order. Despite evidence
of the minor inconvenience that closing might bring, it found
that “LD III had the ability to comply with the September 23,
2008 Order by closing by September 30, 2008 and also after that
date.”

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¶10 Finally, the district court found that LD III’s failure to
comply with the September 23 order by refusing to close “was
willful and intentional.” It reinstated the contempt citation
against LD III; confirmed the original damages award, see supra
¶ 3; and allowed Davis to augment the award with attorney fees,
costs, and expenses incurred following our remand in LD III
Two.

¶11 LD III again appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 We must decide whether the district court properly found
LD III in contempt of court and appropriately awarded damages
in conjunction with that finding. “An order relating to contempt
of court is a matter that rests within the sound discretion of the
district court. We accordingly review the sanctions imposed by
the district court for an abuse of that discretion.” Wolferts v.
Wolferts, 2013 UT App 235, ¶ 8, 315 P.3d 448 (citations, brackets,
and internal quotation marks omitted). “*W]e review [the]
district court’s findings of fact for clear error” and its legal
determinations for correctness. Valerios Corp. v. Macias, 2015 UT
App 4, ¶ 10, 342 P.3d 1127. Some of the district court’s factual
findings rely on its conclusion that two witnesses for LD III were
not credible. “We will not reverse a trial court’s credibility
determination unless it is against the clear weight of the
evidence or our review leads to a definite and firm conviction
that a mistake has been made.” Allen v. Allen, 2014 UT App 27,
¶ 11, 319 P.3d 770 (citation and internal quotation marks
omitted).

ANALYSIS

¶13 We begin by noting that a finding of contempt is proper
only when “the person cited for contempt knew what was

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required, had the ability to comply, and intentionally failed or
refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah
1988). LD III challenges, on several grounds, the district court’s
order including the underlying finding of contempt and the
amount of damages and attorney fees awarded. We turn now to
a consideration of each of LD III’s arguments.

I. The September 23 Order Did Not Give LD III the Choice Not to
Close the Real Property Sale.

¶14 LD III begins its arguments on appeal with the premise
that, on remand, “*t+he District Court clarified LD III had the
option to close or allow quiet title.” It contends that it could not
have been in contempt by choosing the latter option and
allowing the district court to quiet title. The relevant portion of
the September 23 order provides, “If LD III does not close the
real estate transaction by September 30, 2008, the Court shall
quiet title to the subject real property and water rights in Davis.”
LD III claims that this language was “mandatory and self
effectuating.” We are not persuaded.

¶15 In its June 2014 findings, the district court explicitly
foreclosed any contention that the September 23 order allowed
LD III the option not to close. Instead, the quoted language from
the order was meant to “advis*e+ LD III of a consequence that
would follow if it failed to comply.” Our inquiry must therefore
focus on whether LD III “knew what was required.” See Von
Hake, 759 P.2d at 1172. The district court found that LD III knew
and understood the requirements of the September 23 order, and
we cannot say that this finding was clearly erroneous.

¶16 As a preliminary matter, we note that LD III has failed to
properly challenge the district court’s finding. In fact, LD III’s
briefs ignore the fact that the district court’s finding on this point
is contrary to LD III’s position. Furthermore, LD III fails to
marshal the evidence supporting this finding. See Utah R. App.
P. 24(a)(9) (“A party challenging a fact finding must first marshal

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all record evidence that supports the challenged finding.”).
Instead, LD III attempts to challenge the finding by simply
asserting, “It was never proven that LD III knew what was
required or intentionally failed or refused to comply with the
September 23 Order. Rather, LD III understood the Order
mandated the Court would quiet title.” But the district court
found that this was not the case, pointing to evidence that LD
III’s attorney had received an email explaining that if LD III did
not “close by September 30, as ordered by the Court[,] . . . LD III
will be in contempt of court.” Additionally, when LD III elected
not to close, it did not indicate that it was choosing a second
option, purportedly given to it by the district court, “to object to
the proposed order and to appeal the decision.”

¶17 The only evidence LD III referenced to support its
assertion that it did not understand the September 23 order as
the district court later interpreted it was the testimony of two
witnesses, which the district court found to be “not credible.”
Given this determination, other evidence cited by the district
court, and LD III’s failure to effectively challenge the other
evidence or the finding of incredibility, we cannot say that the
district court’s finding was erroneous. See Nunley v. Westates
Casing Servs., Inc., 1999 UT 100, ¶ 17, 989 P.2d 1077 (“A trial
court’s finding of fact is not clearly erroneous unless it is against
the clear weight of the evidence or we reach a definite and clear
conclusion that a mistake has been made.”).

II. LD III Did Not Purge Its Contempt by Later Offering to Close.

¶18 LD III offers an interesting, albeit self-serving,
interpretation of the lengthy proceedings in this case by
suggesting that once this court issued its opinion in LD III One,
“LD III attempted to comply and requested to close the
transaction.” But any good will that LD III might have displayed
following the issuance of our October 2009 decision is
immaterial to our present decision.

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¶19 The district court’s contempt finding and the associated
damages award were predicated on LD III’s conduct between
September 30, 2008, and October 22, 2008. Specifically, LD III
refused to close by the September 30, 2008 deadline and
continued to refuse until the October 22, 2008 hearing. Then, at
that hearing, the district court

advised LD III that Mr. Davis was still ready,
willing and able to close, but LD III nevertheless
declined to do so, electing instead to pursue its
appeal of the October 9, 2008 Order, to obtain a
stay of the quiet title provision of that Order, and
to pledge the Property as security for any and all
damages Mr. Davis might incur as the result of LD
III’s decision not to close as ordered.

The district court, “*b+ased on LD III’s promise, supported by a
bond, to hold Mr. Davis harmless from any damages arising out
of LD III’s failure to close as ordered . . . granted a stay pending
appeal.” Importantly, the district court “did not make the stay
retroactive so as to purge LD III’s contempt for earlier refusing
to close as ordered.” In the district court’s view, then, LD III was
in contempt from the moment it failed to close on September 30,
2008, until it obtained a stay pending appeal.

¶20 We reiterate that a district court’s finding of contempt is
entitled to deference. See Race v. Race, 740 P.2d 253, 256 (Utah
1987). In Race, the plaintiff was found in contempt for refusing to
allow the defendant to visit their children in accordance with the
court’s order. Id. The court informed the plaintiff that she could
purge herself of the contempt if she allowed the defendant to
visit the children within ten days. Id. She did not allow such a
visit until eight months had passed. Id. The plaintiff argued on
appeal that the district court should have dismissed the
contempt finding because she had eventually purged her
contempt. Id. Our Supreme Court affirmed the district court’s

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refusal to do so, concluding that there was no abuse of discretion
given the belated effort at compliance. See id.

¶21 In the present case, the district court found that “LD III
could have purged itself of the contempt by immediately closing
even if closing were later than the September 30 deadline. But
LD III resolutely refused to close and also continued to object to
the Court quieting title in Mr. Davis.” The Supreme Court
concluded in Race that a district court could acknowledge the
contemptuous party’s ability to purge her contempt and then
find that the party had not done so. See id. Similarly, we
conclude that it was not error for the district court to find that
LD III had not purged its contempt after it continued to refuse to
close, having the ability to do so, nor was it improper for the
court to then award damages for the period of time before the
court issued a stay.4

4. To clarify, Davis’s damages are two-fold. First, he was
damaged by LD III’s contempt. For this failure, the district court
awarded damages tied to the period when LD III was in
contempt, namely from September 30, 2008, to October 22, 2008.
Second, Davis was further damaged “as the result of LD III’s
decision not to close as ordered.” LD III agreed to indemnify
Davis against these damages by pledging the subject property as
security “for any and all damages Mr. Davis might incur as the
result of LD III’s decision not to close as ordered.” LD III
challenged the first category of damages in LD III Two and again
in the present appeal. It has not separately challenged the second
category of damages, which in any event were not awarded as a
contempt sanction, are therefore not before us, and were always
intended to be covered pursuant to “LD III’s promise, supported
by a bond, to hold Mr. Davis harmless from any damages arising
out of LD III’s failure to close as ordered.”

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III. LD III’s Contempt Is Not Excused by Its Claimed Reliance on
the Advice of Its Attorneys.

¶22 LD III’s next argument is somewhat unclear, but we take
it to be that any contempt was defensible because LD III relied
on the advice of its attorneys in acting as it did.5 LD III argues
that there was insufficient support for a contempt finding. It
argues that two of its witnesses established that LD III’s
attorneys had advised it not to close and instead to allow the
district court to quiet title. What LD III fails to mention is that
these are the same two witnesses the district court determined
not to be credible. So while there might conceivably be a
situation in which a party is excused for its contempt because of
its reliance on the advice of counsel, this is not such a case. LD III
presented no reliable evidence that established this rationale as a
defense available to it, and the district court therefore did not err
in rejecting the defense.

IV. The Damages and Attorney Fees Award Will Not Be
Disturbed.

¶23 Finally, LD III argues that the district court erroneously
awarded speculative damages and unreasonable attorney fees.
Because LD III failed to marshal the evidence supporting the
district court’s relevant findings, and has otherwise failed to

5. At first blush, this argument seems to focus on the sufficiency
of the evidence supporting the district court’s June 2014
contempt finding. But such an argument would be duplicative
of, and thus suffer from the same defects as, the first argument
addressed in this opinion. See supra ¶¶ 14–17. Instead, with the
help of oral argument, we understand this particular challenge
to focus more on the defenses asserted by LD III to the contempt
charge against it.

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meet its burden of persuasion, we decline to disturb the court’s
award of damages and attorney fees.

A. Damages Caused by LD III’s Contempt

¶24 An award of damages is a function of factual findings
and, as such, can be effectively challenged only by negating the
evidence supporting the award. See Lamar v. Lamar, 2012 UT App
326, ¶ 2, 292 P.3d 86 (per curiam). A party does not meaningfully
marshal the evidence by trotting out a litany of the evidence it
presented below or otherwise “reargu*ing+ the facts that were
before the trial court.” See Hi-Country Estates Homeowners Ass’n v.
Bagley & Co., 2008 UT App 105, ¶ 19, 182 P.3d 417. Rather, the
proper focus is on the evidence that supports the challenged
findings. See id. Although LD III has thoroughly summarized the
evidence that supports its position, it neglects to mention any
evidence that supports the district court’s decision. And LD III
cannot discharge its burden of persuasion on appeal without
candidly acknowledging the evidence in favor of Davis’s
position and then demonstrating the inadequacy of that
evidence. See State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645
(explaining that “a party who fails to identify and deal with
supportive evidence will never persuade an appellate court to
reverse under the deferential standard of review that applies”
when an appellant challenges “the sufficiency of the evidence to
support a factual finding or a verdict”).

¶25 This case readily demonstrates the necessity of the
precept that the party seeking to show that the findings are
inadequately supported by the record bears the burden of
leading the tour through the record, which in this case is now a
veritable jungle of old briefs, transcripts, affidavits, pleadings,
orders, and related ephemera. We will not venture into that
jungle unguided, to see if there is some possibility that one or
more of the challenged findings might lack evidentiary support.
Instead, primarily due to the lack of marshaling, LD III has not

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carried its burden of persuasion, and “we affirm the trial court’s
findings and conclusions regarding . . . damages.” Hi-Country
Estates, 2008 UT App 105, ¶ 20.

B. Davis’s Attorney Fees

¶26 As with the challenge to the district court’s award of
damages, LD III neglects to marshal the evidence supporting the
district court’s key findings underlying its award of attorney
fees. In addition, its argument on the matter is inadequately
briefed. LD III’s bald statement that “*t+he billing time and rates
were excessive” shifts the burden of research and argument to
this court. See generally State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d 977
(“*A+ reviewing court is not simply a depository in which the
appealing party may dump the burden of argument and
research.”). What rate was excessive? How much time was
billed? How much of that time was excessive? We do not know
because LD III has not shown us. Instead, we are left to our own
devices to peruse the record and see if we can discern some
problem with the district court’s analysis. This we decline to do.
“An appellate court should not be asked to scour the record to
save an appeal by remedying the deficiencies of an appellant’s
brief.” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 6, 330 P.3d 762.
See Utah R. App. P. 24(a)(9) (“The argument shall contain the
contentions and reasons of the appellant with respect to the
issues presented, including the . . . parts of the record relied
on.”).

CONCLUSION

¶27 We affirm. The district court did not abuse its discretion
by finding LD III in contempt. On appeal, LD III fails to
successfully challenge the district court’s underlying factual
findings, and we decline to disturb the award of damages and
attorney fees. Because Davis was awarded attorney fees below
and is the prevailing party on appeal, he is entitled to an award

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of attorney fees reasonably incurred on appeal. See Hi-Country
Estates Homeowners Ass'n v. Jesse Rodney Dansie Living Trust, 2015
UT App 218, ¶ 12, 359 P.3d 655. We therefore remand to the
district court for the limited purpose of calculating the amount
of such an award.

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