Duennebeil v. Paramount Financial Services

2025 UT App 141

THE UTAH COURT OF APPEALS

ROXANNE DUENNEBEIL, PETER DUENNEBEIL, JAMES WHEELER, JOHN
SYLVESTER, PATRICK HASLAM, SUSAN HASLAM, MICHAL KARPINSKI,
KENT BOOTH, ANN HALLADAY, GARY WAGGONER, MICHAEL
MOLACEK, DOROTHY YEUNG, AND ARLENE WALKER,
Appellees and Cross-appellants,
v.
PARAMOUNT FINANCIAL SERVICES, INC. DBA LIVE ABUNDANT,
DOUGLAS R. ANDREW, AARON ANDREW, KARL NELSON, JEREMY
WATSON, AND MARCUS MAXFIELD,
Appellants and Cross-appellees.

Opinion
No. 20230756-CA
Filed September 25, 2025

Third District Court, Salt Lake Department
The Honorable Coral Sanchez
The Honorable Su Chon
No. 180903806

Brennan H. Moss and Casey E. Waughn,
Attorneys for Appellants and Cross-appellees
D. Craig Parry, Chaunceton Bird, Sarah Childs,
Claire McGuire, and Mark O. Van Wagoner,
Attorneys for Appellees and Cross-appellants

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Roxanne Duennebeil, Peter Duennebeil, James Wheeler,
John Sylvester, Patrick Haslam, Susan Haslam, Michal Karpinski,
Kent Booth, Ann Halladay, Gary Waggoner, Michael Molacek,
Dorothy Yeung, and Arlene Walker (collectively, Investors) sued
Duennebeil v. Paramount Financial

Paramount Financial Services, Inc.—a company selling life
insurance products under the business name Live Abundant—as
well as the company’s founder—Douglas R. Andrew—and
certain licensed insurance agents that sold insurance products for
the company—Aaron Andrew, Karl Nelson, Jeremy Watson, and
Marcus Maxfield (collectively, the Live Abundant Parties).
Investors sought to hold the Live Abundant Parties liable for
introducing and recommending a real estate investment product
that ultimately failed and caused Investors to lose significant
funds. After a trial, a jury found in favor of Investors on several of
their claims. On appeal, the Live Abundant Parties argue that the
trial court should have granted judgment as a matter of law in
their favor on Investors’ claims because Investors failed to
provide expert testimony as to the relevant standard of care. We
agree and therefore reverse the decision of the court, vacate the
jury’s verdict, and direct the entry of judgment in favor of the Live
Abundant Parties.

BACKGROUND

¶2 The Live Abundant Parties were primarily engaged in the
business of selling life insurance products. However, they also
participated in the sale of certain non-insurance investment
products in conjunction with their sale of insurance products. One
such product was a real estate investment offered by the
Woodbridge Group of Companies (the Woodbridge Product). The
Live Abundant Parties introduced Investors to the Woodbridge
Product, representing it as a sound investment. Investors made
significant investments in the Woodbridge Product, with the
understanding that they would begin earning monthly
distributions as a result of their investments. While Investors did
initially receive monthly distributions, at some point those
distributions started dropping off, and shortly after that,
Woodbridge declared bankruptcy. It eventually came to light that

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Woodbridge was a large-scale Ponzi scheme that used “only new
investor funds as the source of existing investors’ returns.”

¶3 Investors thereafter filed this lawsuit against the Live
Abundant Parties, asserting claims of breach of fiduciary duty,
negligence, negligent misrepresentation, and unjust enrichment.
Investors argued that the Live Abundant Parties “knew, or in
the exercise of reasonable care should have known, that
[the Woodbridge Product was] inappropriate and inadvisable
for [Investors]” and that the Woodbridge Product was “not in
fact backed by a dollar-for-dollar investment in real property”
as the Live Abundant Parties had represented. Investors thus
argued that “[b]y failing to adequately investigate and
understand the risks associated with [the Woodbridge Product]
and failing to inform [Investors] of the same” (and instead
representing that the investments were “safe” and “secure”), the
Live Abundant Parties violated fiduciary duties and acted
negligently, resulting in Investors “suffer[ing] dramatic losses to
their retirement savings.”

¶4 The case proceeded to a jury trial. In their case in chief,
Investors presented testimony from several individual investors
as well as from certain other individuals affiliated with Live
Abundant. At the close of Investors’ evidence, the Live Abundant
Parties moved for judgment as a matter of law pursuant to rule
50(a) of the Utah Rules of Civil Procedure. They argued that
Investors’ breach of fiduciary duty, negligence, and negligent
misrepresentation claims each failed because Investors had not
“established the requisite standard of care that governs these
claims.” Specifically, the Live Abundant Parties argued that
because “[i]nvestment suitability and adequacy of due diligence
in complex real estate transactions are not matters within the
common knowledge of an ordinary juror,” Investors were
required to provide expert testimony as to the applicable standard
of care.

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¶5 The trial court denied the motion. The court explained that
because the Live Abundant Parties “were not acting within their
duties as . . . life insurance agents” but “were doing something
that was outside of that,” the court did not “know what the
industry standard could be or . . . who the appropriate person
would be for an expert.” The court concluded, “[T]he jurors can,
on their own common knowledge and common sense, decide this
case as to whether or not [the Live Abundant Parties] breached
their duties in presenting these investment opportunities that
were unregulated.”

¶6 The jury ultimately found none of the Live Abundant
Parties liable on the breach of fiduciary duty claim. But the jury
did find several of the Live Abundant Parties liable for negligence
and several of them liable for negligent misrepresentation. The
jury also determined that each of the Live Abundant Parties was
unjustly enriched.

¶7 The Live Abundant Parties thereafter submitted a renewed
motion for judgment as a matter of law under rule 50(b) of the
Utah Rules of Civil Procedure, again arguing that Investors were
required to provide expert testimony as to the standard of care
and that their failure to do so was “fatal to [their] case.” After a
hearing, the court denied the renewed motion, again determining
that expert testimony was not required under the circumstances
of this case. 1 The Live Abundant Parties thereafter timely
appealed.

ISSUE AND STANDARD OF REVIEW

¶8 The Live Abundant Parties argue that the trial court erred
in denying their motions for judgment as a matter of law and in

1. Judge Chon presided over the trial and denied the first motion
for judgment as a matter of law, and subsequently Judge Sanchez
denied the renewed posttrial motion.

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determining that Investors did not need to present expert
testimony to establish the standard of care for their claims. “We
review a denial of a motion for judgment as a matter of law for
correctness.” UMIA Ins. v. Saltz, 2022 UT 21, ¶ 26, 515 P.3d 406
(quotation simplified). Likewise, “[w]hether expert testimony is
required to establish the applicable standard of care in a particular
case presents a question of law, which we review for correctness.”
Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 39, 513 P.3d
729. 2

ANALYSIS

¶9 “In order to prevail under [a negligence or a negligent
misrepresentation claim], a plaintiff must demonstrate the
existence of a duty running between the parties.” Smith v.
Frandsen, 2004 UT 55, ¶ 9, 94 P.3d 919. “In a negligence claim, a
plaintiff must show a duty of reasonable care owed by the
defendant to the plaintiff.” Gables at Sterling Village Homeowners
Ass’n v. Castlewood-Sterling Village I, LLC, 2018 UT 04, ¶ 56, 417
P.3d 95 (quotation simplified). And “under negligent
misrepresentation, the duty is to exercise reasonable care or
competence in determining the information to be supplied to
others for guidance in business transactions.” 3 Rawson v. Conover,
2001 UT 24, ¶ 31, 20 P.3d 876.

2. The Live Abundant Parties raise two other claims on appeal,
and Investors raise two claims on cross-appeal. But because our
resolution of the first issue on appeal is dispositive, we need not
address any of these additional issues.

3. The Live Abundant Parties did not squarely address Investors’
unjust enrichment claim in either of their motions for judgment as
a matter of law, but they did tacitly suggest that establishing a
standard of care through expert testimony was crucial to the
(continued…)

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¶10 “To determine the relevant standard of care in negligence
cases, the essential question is the care that a reasonable person
would undertake in the defendant’s circumstances.” Gables at
Sterling Village, 2018 UT 04, ¶ 57 (quotation simplified). “[I]n a
typical negligence case we ask a jury of reasonable people to draw
upon their collective expertise to conclude how a reasonable
person would have acted in that circumstance.” Id. But when the
standard of care implicates matters “that would lie beyond the
capacity of an ordinary juror,” a plaintiff generally must provide

viability of Investors’ case overall. And this seems in line with the
stipulated jury instructions, which explained the dependent
nature of Investors’ unjust enrichment claim:
[Investors] contend that each of [the Live Abundant
Parties] breached a fiduciary duty . . . by failing to
conduct due diligence into [the Woodbridge
Product] . . . . They further claim that each [of the
Live Abundant Parties] failed to exercise reasonable
care in connection with [the Woodbridge Product]
by failing to properly understand and investigate
the risks of [the Woodbridge Product]. They also
claim that each of [the Live Abundant Parties] made
misrepresentations and omissions about [the
Woodbridge Product] . . . , including that the real
estate investments were safe and secure and that
they were backed by an interest in real property.
Finally, each of [Investors] asserts that it would be
unjust for [the Live Abundant Parties] to retain the
commissions they earned from selling [the
Woodbridge Product] in these circumstances.
(Emphasis added.) Thus, we agree that Investors’ failure to
present a standard of care to prove the asserted claims is
ultimately fatal to their unjust enrichment clam as well. Proving
unjust enrichment would have required Investors to demonstrate
wrongful conduct or a breach of duty for the Live Abundant
Parties’ financial gains.

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expert testimony to assist the jury. Id. ¶ 60. “This testimony may
be unnecessary, however, if the professional task is so common or
the alleged breach is so egregious that specialized knowledge is
not required to conclude that the conduct fell below the applicable
standard of care, whatever that standard might be.” Id.; see also
Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶¶ 87–91, 513
P.3d 729 (concluding that expert testimony “was unnecessary” on
a claim that a car dealership was negligent in selling a car covered
by “a mandatory stop-sale order” that prohibited the sale of
recalled vehicles until a fuel line was replaced); Nixdorf v. Hicken,
612 P.2d 348, 352 (Utah 1980) (stating that “[t]he loss of a surgical
instrument or other paraphernalia[] in the operating site” is a
situation in which “the propriety of the treatment received is
within the common knowledge and experience of the
lay[person]”); Nguyen v. IHC Health Services, Inc., 2010 UT App 85,
¶ 18, 232 P.3d 529 (holding that an expert was not needed to
establish that a patient put on a ventilator “should have been
informed that the ventilator was in the hospital on a trial basis for
experimental purposes; that it was still under evaluation; that it
was actually intended for ‘life flight’ transport; and, most
importantly, that the ventilator had not once been used on a
patient”). “Accordingly, the question of whether expert testimony
is required will necessarily occur on a case by case basis . . . .”
Gables at Sterling Village, 2018 UT 04, ¶ 60.

¶11 Both the Live Abundant Parties and Investors consider this
court’s decision in White v. Jeppson, 2014 UT App 90, 325 P.3d 888,
instructive here. In White, the district court granted summary
judgment in favor of the defendants based on the plaintiffs’ failure
to timely designate an expert witness. See id. ¶ 19. The district
court had reasoned that expert testimony was necessary in that
case because it concerned “complex real estate investments that
involved multiple parties and types of properties, and various
financing arrangements spanning a period of several years.” Id.
¶ 21.

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¶12 On appeal, this court agreed that “where the average
person has little understanding of the duties owed by particular
trades or professions, expert testimony must ordinarily be
presented to establish the standard of care,” and we recognized
that courts have often required expert testimony in cases dealing
with certain professions, such as insurance brokers and
investment trading advisors. Id. ¶ 20 (quotation simplified). We
further agreed that the White case “involve[d] some issues that
[went] beyond the common knowledge and understanding of a
layperson.” Id. ¶ 21. Nonetheless, we reversed the district court’s
grant of summary judgment because “the district court’s broad
brush approach did not adequately assess the need for an expert
on each claim, or, more precisely, on each element of [the
plaintiffs’] claims.” Id. We recognized that there was at least one
claim asserted—that the investment advisors “lied about having
invested in the [product] and having received ‘big checks’ from
the investment”—that was “a clear example of where expert
testimony is not needed.” Id. ¶ 23. This was so because “the
gravity of investment advisors misrepresenting their
participation in an investment and the consequence of lying
about, or even exaggerating, the return they have received on
their investment is certainly within the common knowledge and
experience of the lay[person].” Id. (quotation simplified). We
therefore remanded the case to the district court with instructions
“to analyze the need for expert testimony on each of [the
plaintiffs’] claims.” Id.

¶13 Here, each side argues that White supports its position. The
Live Abundant Parties argue that White clearly provides “that
expert testimony is required to establish the standard of care for
complex real estate investments and for breaches of duty by
financial or insurance professionals, where, as here, the putative
breaches go beyond lying to clients.” Investors, on the other hand,
argue that their claims are similar to the one highlighted in White
where the jury was “adequately equipped to evaluate [the]
evidence . . . without expert testimony.” Thus, the question before

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us focuses on exactly what kinds of failings were alleged by
Investors in their claims against the Live Abundant Parties, that
is, whether the alleged failings of the Live Abundant Parties could
be described as lying about certain material information or
whether their alleged failings are based on a lack of due diligence,
whatever that entails. We agree with the Live Abundant Parties
that Investors’ claims fall into the latter category.

¶14 Investors assert a plethora of failings on the part of the Live
Abundant Parties, but establishing negligence based on such
failings requires an understanding of what steps the Live
Abundant Parties reasonably should have taken before
encouraging investment in the Woodbridge Product. For
example, Investors assert that the Live Abundant Parties “never
looked at an appraisal of the Woodbridge Property,” “did not
seek or look at any title reports,” “did not know the actual
potential return on Woodbridge investments,” “failed to vet” the
Woodbridge Product, and did not have “any insurance or
financial accreditation.” Whether such failings were negligent
simply cannot be assessed without an understanding of what
kind of due diligence was required under the circumstances.
Although the average person understands that material lies or
exaggerations are a breach of duty, the average person has little
understanding of what level of investigation or depth of vetting
is required before recommending the purchase of a real-estate
investment product.

¶15 Investors also assert that the Live Abundant Parties made
certain representations that qualify as negligent
misrepresentations—namely, that the Live Abundant Parties
(1) assured Investors that the Woodbridge Product was “‘safe’
and ‘secure,’” (2) exaggerated or omitted information regarding
potential returns, and (3) misrepresented or exaggerated the
accreditation of some of the Live Abundant Parties. But the
gravity of such statements, even if they did amount to actual

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Duennebeil v. Paramount Financial

misrepresentations, 4 is not clear without knowing more.
Specifically, to assess these claims, the fact finder would need to
know (1) what type of due diligence was required before it would
have been reasonable to call these investments “safe,” (2) what

4. The one affirmative lie that Investors specifically assert in their
briefing is that the Live Abundant Parties “advertised that they
had ‘obtain[ed] a title policy for each [Woodbridge] property’
when, in reality, they never reviewed these policies and never
conducted a title search.” However, the record citation given to
support this assertion is the following exchange during the
testimony of a Live Abundant employee (who was not a party to
this case):
Q. Did you ever review a title policy for any of
these properties?
A. I don’t—I don’t believe so.
Q. Did you ever request that a title search be
performed on any of the properties that were
part of the Woodbridge notes your clients
invested in?
A. Not that I recall.
Q. Do you have any knowledge of anyone at
Live Abundant doing that?
A. I believe—I remember someone doing that,
but I can’t recall the specifics. But I—I believe
that did happen with someone.
Q. You believe it happened, but do you know
that it happened?
A. I can’t recall the specifics, no.
Q. Okay. Do you—did you ever request an
independent appraisal of any of these
properties?
A. I personally did not, no.
This exchange does little to support Investors’ assertion that the
Live Abundant Parties did not review the title polices or conduct
title searches as represented.

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Duennebeil v. Paramount Financial

constitutes an appropriate assessment of potential future returns
(which are never guaranteed and must involve at least some level
of uncertainty and estimation), and (3) whether accreditation even
mattered here in the sale of unregulated investment products. In
other words, the fact finder needed to be able to assess whether
the Live Abundant Parties were dishonest in some way that
would have amounted to a violation of the duty “to exercise
reasonable care or competence in determining the information to
be supplied to others for guidance in business transactions.”
Rawson v. Conover, 2001 UT 24, ¶ 31, 20 P.3d 876; see also White,
2014 UT App 90, ¶ 23 (determining that expert testimony was not
required where “the gravity of” the misrepresentations and “the
consequence of” the misrepresentations were “within the
common knowledge and experience of the lay[person]”
(quotation simplified)); Reperex Inc. v. Child, Van Wagoner
& Bradshaw, 2017 UT App 25, ¶ 49, 392 P.3d 905 (determining that
the claims brought against a business broker were “not so
complex as to require expert testimony” when those claims
asserted that the broker lied about things that would clearly
impact the value of the business being sold, including
misrepresentations that the business’s profits were several times
what they actually were, significant misrepresentations about the
time required to secure the appropriate business licenses, and a
failure to disclose that the business’s largest client had filed
bankruptcy), aff’d in part, rev’d in part sub nom., Reperex, Inc. v.
Coldwell Banker Com., 2018 UT 51, 428 P.3d 1082.

¶16 Without expert testimony on what reasonable due
diligence was required, Investors did not prove that the Live
Abundant Parties failed to reasonably investigate the
Woodbridge Product before recommending Investors invest or
that the Live Abundant Parties affirmatively lied about something
of sufficient gravity that it clearly amounted to negligence under
any standard of care. Expert testimony was necessary to establish
the standard of care the Live Abundant Parties owed to Investors

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to investigate and vet the product recommended. And the trial
court’s determination to the contrary was in error.

CONCLUSION

¶17 Because expert testimony was required for Investors to
prevail on their claims and because no such testimony was
presented to the jury, the trial court erred in denying the Live
Abundant Parties’ motions for judgment as a matter of law. We
therefore reverse those determinations, vacate the verdict, and
direct the entry of judgment in favor of the Live Abundant Parties.

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