Francis v. National DME

2015 UT App 119

THE UTAH COURT OF APPEALS

DAVID A. FRANCIS,
Plaintiff, Appellee, and Cross-appellant,
v.
NATIONAL DME, JOSEPH COTTIS, AND J. SCOTT COTTIS,
Defendants, Appellants, and Cross-appellees.

Opinion
No. 20120605-CA
Filed May 7, 2015

Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 090912839

Gary R. Guelker and Janet I. Jenson, Attorneys
for Appellants
April L. Hollingsworth and Elizabeth M. Peck,
Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGE JAMES Z. DAVIS and SENIOR JUDGE RUSSELL W. BENCH
concurred.1

ROTH, Judge:

¶1 In this employment dispute, National DME, Joseph Cottis,
and J. Scott Cottis (collectively, DME) seek appellate review of
various rulings made by the trial court. Specifically, DME seeks
reversal of the trial court’s decisions to deny its motion for a new
trial or, alternatively, to reduce the judgment to $9,700; to
exclude certain evidence as unduly prejudicial under rule 403 of

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
Francis v. National DME

the Utah Rules of Evidence; and to award attorney fees and
prejudgment interest at the rate of 10% to the plaintiff, David A.
Francis. Francis cross-appeals, arguing that the trial court erred
by entering a directed verdict that dismissed his counterclaim
for intentional interference with economic relations and by
denying on hearsay grounds the admission of certain evidence
relevant to that counterclaim.

¶2 With respect to the issues raised by DME, we reverse the
trial court’s decision to deny DME’s motion to amend the
judgment and we reduce the judgment to $9,700. This decision
means that we must vacate the award of statutory attorney fees.
We affirm, however, the trial court’s award of prejudgment
interest and its decision to exclude evidence regarding the
circumstances of DME’s termination of Francis. With respect to
the issues raised by Francis on cross-appeal, we affirm the trial
court’s ruling regarding the exclusion of certain evidence on
hearsay grounds, but we reverse the trial court’s ruling as to his
counterclaim for intentional interference with economic relations
and remand for further proceedings.

BACKGROUND

I. Francis’s Employment at DME

¶3 DME is a Utah company that sells durable medical
equipment such as canes, crutches, splints, wheelchairs, custom
braces, sleep therapy oxygen devices, and other breathing
equipment. DME sells its products in three ways: an inventory
outsourcing program, direct sales to patients, and sales through
a website. DME maintains two branches that are responsible for
distributing its products, regardless of how they are sold: the
Salt Lake branch and the St. George branch.

¶4 DME hired Francis as its national sales manager on April
1, 2003. As part of the hiring process, DME provided Francis

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with an employee handbook. Francis acknowledged receipt of
the handbook by signing an ‚Acknowledgement Form.‛
Although the Acknowledgement Form does not reference a
noncompete agreement, DME’s president testified at trial that
a noncompete agreement form was included as part of the
handbook and that Francis agreed to be bound by the
noncompete agreement by signing the Acknowledgement Form.
Francis denied that he had ever seen, been presented with, or
signed a noncompete agreement.

¶5 DME terminated Francis’s employment one year later
after Francis failed to report to work for three consecutive days.
Shortly thereafter, Francis began work at a similar company,
BSN Medical, as an independent sales representative. After
starting work at BSN, Francis filed a wage claim against DME
with the Utah Labor Commission (the Commission) to recover
unpaid commissions. The Commission notified DME of the
wage claim on June 15, 2004.

¶6 In the meantime, DME learned that Francis had begun
working for BSN. According to DME, it believed that Francis
was bound by a noncompete agreement and therefore instructed
its attorney to send Francis a letter alleging that his employment
at BSN was ‚in direct violation‛ of that agreement. The letter
threatened legal action if Francis did not ‚terminate *his]
employment with BSN Medical immediately and provide
evidence satisfactory to National DME‛ that he had ceased
competing with it. The letter to Francis was dated June 17, 2004,
and was copied to BSN.

¶7 After receiving DME’s letter, BSN contacted Francis about
the alleged noncompete agreement. Francis denied ever signing
or agreeing to a noncompete agreement and voiced his belief
that the June 17 letter was written in retaliation for his wage
claim. On July 14, 2004, BSN formally responded to DME’s June
17 letter with a letter of its own to DME, indicating that it had
tried unsuccessfully to contact DME’s attorney ‚to discuss

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*DME’s+ concerns and the background and documents relating
to‛ Francis’s alleged noncompete agreement. Over a month
passed without a response from either DME or DME’s attorney.

¶8 The next communication Francis received regarding the
noncompete issue was a voicemail left by Francis’s BSN
supervisor on August 11, 2004. According to Francis, the
supervisor informed him that ‚because we’re going to an
employee/employer relationship,‛ as opposed to having the
sales representatives work as independent contractors, ‚human
resources feels like the noncompete agreement precludes my
being able to keep you in your territory.‛ (Emphasis omitted.)
The next day, BSN sent Francis a formal termination letter via
email.

¶9 A week later, on August 19, 2004, DME sent a letter to
Francis’s BSN supervisor stating that DME had ‚reached a
‘settlement’ agreement with Dave Francis regarding his
employment with BSN‛ and that DME would not pursue
enforcement of the noncompete agreement. By this time,
however, BSN had already terminated Francis. Nevertheless, the
BSN supervisor forwarded DME’s August 19 letter to another
BSN representative, stating that ‚this should close the Dave
Francis issue.‛

II. Procedural History

¶10 After leaving BSN, Francis continued to pursue his wage
claim against DME. On April 6, 2005, he sent a demand letter to
DME setting forth a number of claims under federal and state
law and offering to settle all of them for $150,000. He specifically
addressed the wage claim, stating that DME ‚still owes Mr.
Francis approximately $15,000 in commissions that were owed
to him for sales he made while still employed with the
company.‛ The parties were unable to settle the matter, and
Francis filed suit against DME and certain individuals associated
with DME in federal district court.

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¶11 In his complaint, Francis set out federal claims under the
Americans with Disabilities Act of 1990, the Consolidated
Omnibus Budget Reconciliation Act, the Employee Retirement
Income Security Act, and the Family Medical Leave Act of 1993.
Additionally, Francis alleged several state-law claims, including
intentional interference with economic relations, equitable
estoppel, and breach of contract. He also requested attorney fees.

¶12 DME moved for summary judgment on Francis’s claims,
and the federal district court granted it in part, dismissing all of
Francis’s federal claims and his equitable estoppel claim, leaving
only his claims for intentional interference with economic
relations and breach of contract and his request for attorney fees.
The federal court declined to exercise supplemental jurisdiction
over the remaining claims and instead dismissed them without
prejudice, informing Francis that he was free to refile in state
court.

¶13 Francis did so on August 5, 2009. Due to the extensive
discovery that had already occurred in federal court, the parties
agreed to proceed immediately to trial. Several motions in limine
were filed ahead of trial, two of which are pertinent to this
appeal. In the first, Francis moved to exclude any evidence
regarding the circumstances of DME’s termination of his
employment. The trial court granted the motion, reasoning that
the evidence regarding his termination was not relevant and
that, even if relevant, it would be substantially more prejudicial
than probative under rule 403 of the Utah Rules of Evidence. In
the second motion, DME moved to exclude evidence of the
voicemail that BSN left for Francis, arguing that Francis’s
testimony concerning the voicemail would be inadmissible
hearsay. The trial court agreed and granted the motion.

¶14 At trial, the parties sharply contested the terms of
Francis’s employment contract with DME. First, Francis testified
that in addition to his salary of $60,000 per year plus benefits
(which had been paid), DME promised him commissions equal

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to 4% of the Salt Lake branch’s net profits (excluding any profits
from oxygen sales). He further testified that DME’s president
had expressly acknowledged that Francis had earned $15,000 in
commissions for the first quarter of his employment. Francis
admitted that DME had paid him $5,300 of that amount, $2,300
to cover repairs he had incurred on his truck and another $3,000
to fund Christmas bonuses to DME warehouse employees under
Francis’s supervision.

¶15 DME responded with testimony that it had never agreed
to pay Francis commissions in addition to salary and it had
never acknowledged owing him $15,000 in commissions for the
first quarter of his employment or otherwise. DME did admit,
however, that during the final three months of Francis’s
employment, it had paid him $2,3002 in addition to his salary
and that the W-2 form it had issued to Francis reflected that fact.
Francis then testified that the $2,300 represented a portion of the
$15,000 he was owed for his commissions, namely the portion he
was given in order to repair his truck.

¶16 Other than his own testimony regarding commissions
owed for the first quarter of his employment, Francis did not
offer any specific evidence about the amount of commissions he
had earned during the time he was employed at DME. That is,
he did not offer any specific evidence regarding the net profits of
the Salt Lake branch between April 2003 and March 2004.
Instead, he elicited testimony from DME’s executives that its net
profits company-wide for 2003 and 2004 were $600,000 and that
the company’s sales remained steady during that time period.

2. There was a discrepancy about whether the amount was
$2,300 or $2,500. At one point in the trial, Francis seemed to
concede that DME had actually paid $2,500. Because DME has
indicated its willingness to be bound by the $2,300 figure, we
will use it throughout this decision.

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¶17 At the close of Francis’s case-in-chief, DME moved for a
directed verdict on Francis’s claim for intentional interference
with economic relations, arguing that he had failed to establish
causation. The trial court agreed and dismissed the claim. At the
same time, DME moved for a directed verdict on DME’s alleged
breach of Francis’s employment contract, arguing that Francis
had failed to establish damages. Specifically, DME argued that
because there was no evidence of the net profits for the Salt Lake
branch, Francis could not prove damages with reasonable
certainty. Initially, the trial court agreed to limit the question of
damages to the $9,700 that Francis claimed he was still owed for
the first quarter of his employment. Prior to closing arguments
and at the request of Francis’s counsel, however, the trial court
revisited this ruling. It ultimately accepted Francis’s argument
that because there was testimony about DME’s net profits
during 2003 and 2004 (the years that encompassed Francis’s year
of employment with DME) and there was also testimony that the
company’s sales remained steady during that time, the jury
could ‚extrapolate‛ from those facts that Francis’s commissions
also would have remained steady. Based on this reasoning, the
court reversed its prior ruling and allowed Francis to present
this extrapolation argument to the jury during closing
arguments.

¶18 The jury found for Francis on the breach of contract claim
and awarded him $24,000 for unpaid commissions. The trial
court subsequently awarded Francis $46,870.07 for attorney fees
pursuant to Utah Code section 34-27-1 and prejudgment interest
on the $24,000 from April 1, 2004, to June 25, 2010, at a statutory
rate of 10% under Utah Code section 15-1-1. DME then moved
for a new trial or, alternatively, to reduce the amount of the
judgment, arguing that there was insufficient evidence to
support the jury’s verdict. The court denied this motion,
reasoning that the jury’s award was ‚well within the realm of a
reasonable award.‛ Final judgment was entered, and both
parties filed timely appeals.

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ISSUES AND STANDARDS OF REVIEW

¶19 DME raises four issues in its appeal. First, it argues that
there was insufficient evidence to support the jury’s verdict.
When a party challenges a verdict based on insufficiency of the
evidence, ‚[w]e reverse only if, viewing the evidence in the light
most favorable to the prevailing party, we conclude that the
evidence is insufficient to support the verdict.‛ Scudder v.
Kennecott Copper Corp., 886 P.2d 48, 52 (Utah 1994) (citation and
internal quotation marks omitted).

¶20 Second, DME argues that the trial court should have
allowed it to present evidence regarding the circumstances
surrounding Francis’s termination. ‚Trial court rulings on the
admissibility of evidence generally entail a good deal of
discretion, and we review those rulings for an abuse of that
discretion.‛ State v. Havatone, 2008 UT App 133, ¶ 6, 183 P.3d 257
(citation and internal quotation marks omitted).

¶21 The third and fourth issues raised by DME involve the
trial court’s interpretation and application of two statutes.
Specifically, DME argues that the trial court misinterpreted
sections 34-27-1 and 15-1-1 of the Utah Code when it awarded
Francis his attorney fees and prejudgment interest. ‚When our
review requires us to examine statutory language, we look first
to the plain meaning of the statute and then review [the] district
court’s interpretation of a statute for correctness.‛ State v. Steed,
2014 UT 16, ¶ 14, 325 P.3d 87 (alteration in original) (citations
and internal quotation marks omitted).

¶22 In his cross-appeal, Francis raises two issues. First, he
argues that the trial court erred when it granted DME’s motion
for a directed verdict with respect to his claim for intentional
interference with economic relations and that it erred again
when it refused to reconsider its ruling on that claim later in the
trial. We review the trial court’s ‚grant or denial of a motion for
directed verdict for correctness.‛ Proctor v. Costco Wholesale Corp.,

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2013 UT App 226, ¶ 6, 311 P.3d 564. ‚Accordingly, we will
sustain a directed verdict if[,] after examining all evidence in a
light most favorable to the non-moving party, there is no
competent evidence that would support a verdict in the non-
moving party’s favor.‛ Id. (alteration in original) (citation and
internal quotation marks omitted).

¶23 Second, Francis argues that the trial court erroneously
excluded his testimony about the voicemail left by BSN as
inadmissible hearsay. ‚The determination of whether evidence
constitutes hearsay is a question of law that we review for
correctness.‛ Stepsaver, Inc., v. Department of Workforce Servs.,
2013 UT App 207, ¶ 8, 309 P.3d 290 (citation and internal
quotation marks omitted). We review ‚the ultimate ruling on
admissibility,‛ however, for ‚an abuse of discretion.‛ State v.
Stewart, 2014 UT App 112, ¶ 7, 327 P.3d 595 (citation and internal
quotation marks omitted).

ANALYSIS

I. DME’s Appeal

A. The Trial Court Erred by Denying DME’s Motion for a
Reduction in Judgment Because the Evidence Was
Sufficient Only to Support a Verdict of $9,700.

¶24 DME argues that the trial court should have granted
either its motion for a new trial or its motion to amend the
judgment amount because there was insufficient evidence to
support the jury’s $24,000 verdict, even under Francis’s
extrapolation theory. See Utah R. Civ. P. 59(a), (b), (e) (explaining
that a party may move for a new trial or seek to alter or amend a
judgment when the evidence is insufficient to support the
verdict). Specifically, DME argues that Francis presented no
evidence regarding the net profits of the Salt Lake branch and,
because those profits cannot be determined based solely on the

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net profits of the company as a whole, there was no way for the
jury to reliably decide how much, if anything, Francis was owed
in commissions. Hence, DME urges us to conclude that the jury’s
verdict was based upon speculation and was therefore
unsupported by the evidence. We agree that there was
insufficient evidence to support an award greater than $9,700.

¶25 DME relies on Price–Orem Investment Co. v. Rollins, Brown
& Gunnell, Inc., 784 P.2d 475 (Utah Ct. App. 1989), to support its
contention that Francis had not sufficiently proven $24,000 in
damages. Price–Orem states that a plaintiff must demonstrate the
amount of damages suffered with ‚reasonable certainty.‛ Id. at
478, overruled on other grounds by Smith v. Fairfax Realty, Inc., 2003
UT 41, 82 P.3d 1064. DME argues that Francis failed to meet this
burden because he failed to ‚provide supporting evidence of
overhead expenses and other costs of producing income from
which a net income figure can be derived,‛ see id. at 479, and that
therefore the jury’s verdict was ‚necessarily . . . based on
speculation.‛

¶26 Price–Orem establishes the standards for proving both the
fact of damages and the amount of damages, recognizing that
‚the level of certainty required to establish the amount of loss is
generally lower than that required to establish the fact of loss.‛
Id. To prove the fact of damages, ‚*t+he evidence must do more
than merely give rise to speculation that damages in fact
occurred; it must give rise to a reasonable probability that the
plaintiff suffered damage as result of a breach.‛ Atkin Wright &
Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah
1985). Proving the amount of damages does not require
‚absolute precision.‛ Price–Orem, 784 P.2d at 478. Instead, ‚*t+he
certainty requirement is met as to the amount of lost profits if
there is sufficient evidence to enable the trier of fact to make a
reasonable approximation.‛ Cook Assocs., Inc. v. Warnick, 664 P.2d
1161, 1167 (Utah 1983). But ‚*w+hat constitutes such an
approximation will vary with the circumstances. Greater

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accuracy is required in cases where highly probative evidence is
easy to obtain than in cases where such evidence is unavailable.‛
Id.

¶27 In this case, Francis provided sufficient evidence for a jury
to reasonably conclude that DME failed to pay him commissions
that were part of his compensation structure. For instance,
though DME denied it, Francis testified that DME had agreed to
pay him a commission of 4% of the Salt Lake branch’s net profits
(excluding oxygen sales) and that the company then had refused
to pay him all the commissions that he was owed. And Francis
also provided a W-2 form showing that DME had made an
additional payment beyond what Francis was owed in salary
during that period. Although DME had no explanation for the
discrepancy, Francis testified that the additional payment was a
portion of the commissions he was owed and that it was paid to
him in order to get his truck repaired. Thus, there was sufficient
evidence before the jury for it to conclude that there was a
‚reasonable probability‛ that DME had breached its
employment contract with Francis and that Francis had suffered
damages as a result of that breach. See Atkin Wright & Miles, 709
P.2d at 336.

¶28 We are not persuaded, however, that Francis put on
evidence sufficient to sustain a damages award of $24,000.
Though ‚*t+he amount of damages may be based upon
approximations,‛ those approximations must be ‚based upon
reasonable assumptions or projections.‛ Price–Orem, 784 P.2d at
479 (alteration in original) (citation and internal quotation marks
omitted). And a reasonable approximation in this case requires
some ‚*g+reater accuracy‛ because ‚highly probative evidence
*of the amount of damages+ is easy to obtain.‛ Cook Assocs., 664
P.2d at 1167. This is because unlike cases such as Price–Orem,
where the plaintiff claimed damages based on the loss of
unrealized (and unrealizable) future events, Francis claimed loss
of commissions owed for profits already made, a matter much

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more susceptible to historic analysis. As a consequence,
something more tangible in the way of ‚approximation‛ was
both required and available in this case than what Francis
presented. See Cook Assocs., 664 P.2d at 1167.

¶29 Francis failed to provide the evidence necessary to
support the $24,000 award. Although he worked for DME for
about one year, he provided specific testimony only about the
first quarter of his employment at DME, stating that DME had
acknowledged owing him $15,000 in commissions for that
period. And despite his claim that DME’s agreement was to pay
him commissions in the amount of 4% of the Salt Lake branch’s
net profits less oxygen sales, he provided no direct evidence of
those profits for the subsequent three quarters of the year that he
managed that branch or the amount of commission he should
have earned in that period. Francis offers no explanation for why
specific information about the net profits earned by his branch
would not have been available, either from his own personal
knowledge as branch manager or from sources within DME
itself.

¶30 Francis contends, however, that the $24,000 damages
award is nevertheless supported by the evidence under the
extrapolation theory the trial court allowed him to argue to the
jury in closing. Francis urged the jury to infer the amount of
commissions DME owed him by extrapolating his first quarter
commissions ($15,000) over the entire year, based on DME
testimony that profits and sales for the company as a whole had
remained steady during the relevant time frame. According to
Francis, using this method, the jury could reasonably have
concluded that he would have earned $60,000 in commissions
during the entire year. And because this theory supported a
higher award, a $24,000 damages award was justified. Indeed,
Francis contends, the $24,000 award is appropriate because
$24,000 is exactly 4% of the company’s net sales of $600,000. But
even viewing the evidence in the light most favorable to Francis,

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the evidence simply does not support Francis’s claim that he
could be imputed the $24,000 awarded, much less the $60,000 he
argued could have been awarded. See Wilson Supply, Inc. v.
Fradan Mfg. Corp., 2002 UT 94, ¶ 21, 54 P.3d 1177 (explaining that
when considering a claim that the evidence is insufficient,
appellate courts must view the evidence in a light most favorable
to the verdict).

¶31 Although the evidence favorable to Francis demonstrated
that he had earned $15,000 in commissions for the first quarter
and that DME’s sales had remained steady throughout the year,
the jury could not reasonably have extrapolated from this that
Francis would have earned the same amount in commissions for
the remaining three quarters, or $60,000 for the year. Francis’s
employment agreement entitled him to commissions equal to 4%
of the Salt Lake branch’s net profits, excluding profits from sales
of oxygen. Using the $600,000 net-profits figure presented at trial
and even if that entire amount came from the Salt Lake branch
(and none of it was from sales of oxygen), a $60,000 commission
would be equivalent to 10% of those profits, a percentage well
above the 4% maximum allowed by contract. As a result, the
evidence does not support a straight-line extrapolation of his
$15,000 first-quarter commission through the rest of the year.

¶32 As we noted, Francis argues that $24,000 is a particularly
appropriate award because it is precisely 4% of DME’s entire
profits. But for Francis to be entitled to receive $24,000 in
commissions, he would have had to put on evidence to show
that the Salt Lake branch generated all company profits and
none of those profits came from oxygen sales. In the absence of
evidence of this sort, the jury simply could not have assumed
that DME’s entire annual profit was attributable to the sole
source of revenue that benefitted Francis. See Price–Orem
Investment Co. v. Rollins, Brown & Gunnell, Inc., 784 P.2d 475, 478
(Utah Ct. App. 1989) (recognizing that the plaintiff bears the
burden of proving damages). Consequently, Francis’s damages

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must be limited to actual damages demonstrated at trial. In this
regard, although Francis testified that his first quarter
commissions amounted to $15,000, he conceded that DME had
already paid him $5,300 and that the balance owed for the first
quarter was therefore $9,700. Accordingly, we reduce the
judgment to $9,700, the amount actually proved at trial.3

B. The Trial Court Did Not Abuse Its Discretion in Excluding
Evidence Regarding the Circumstances of Francis’s
Termination from DME.

¶33 DME next argues that the trial court erred when it
excluded evidence of the circumstances surrounding DME’s
termination of Francis’s employment. Specifically, DME argues
that the evidence should have been admitted because without it,
the jury would have been left to speculate about the reasons for
Francis’s termination, which may have resulted in prejudice to
DME if the jury assumed that Francis ‚was the victim of a
greedy employer interested in maximizing its profits at the
expense of its employees.‛ DME further argues that the evidence
would have allowed it to argue that Francis had a motive to
retaliate against DME and that it was also probative of Francis’s
character for truthfulness. We disagree.

3. DME also argues that it was prejudiced by the trial court’s
decision to alter its ruling with respect to the damages issue.
Specifically, DME argues that it relied on the trial court’s first
ruling, which appeared to cap Francis’s damages at $9,700, and,
as a consequence, withheld evidence during its case-in-chief that
would have rebutted the extrapolation theory that the court
subsequently allowed Francis to present to the jury during
closing arguments. Because we have reduced the judgment to
$9,700 on DME’s insufficient evidence argument, we need not
reach DME’s prejudice argument.

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¶34 Rule 403 of the Utah Rules of Evidence provides that
‚*t+he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.‛4 In interpreting this rule, we have held
that ‚the trial court is granted broad discretion when weighing
the probative value of evidence against the reasons for exclusion
enumerated in rule 403.‛ Glacier Land Co. v. Claudia Klawe &
Assocs., LLC, 2006 UT App 516, ¶ 24, 154 P.3d 852. Such
discretion is appropriate because ‚the trial court is in the best
position to make evidentiary rulings as they arise because it can
review, among other things, the claims and the evidence already
admitted or proffered.‛ Id.

¶35 Here, the trial court determined that the evidence
concerning the circumstances of Francis’s termination was both
irrelevant and unfairly prejudicial. Such a determination is well
within the court’s discretion. This is not a wrongful termination
claim where the particular circumstances supporting termination
might be pertinent to the outcome; rather, the issue is whether
Francis was in fact entitled to commission payments for the
work that he performed while he was actually employed.
Furthermore, as the trial court noted, the circumstances of the
termination have no bearing on Francis’s character for
truthfulness. It is ‚too far of a stretch‛ to argue that Francis’s
behavior equates to dishonesty. Finally, we are not persuaded
that this evidence was necessary to prevent the jury from
imputing evil motives to DME. Accordingly, we conclude that

4. Because changes made to the Utah Rules of Evidence since the
time this lawsuit was filed are stylistic only, we cite the current
version of the rules throughout this opinion as a courtesy to the
reader.

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the trial court did not exceed its discretion when it excluded this
evidence.

C. The Trial Court’s Interpretation of Section 34-27-1 of the
Utah Code Was Correct, but Because Francis’s Judgment Is
Less than His Demand, He Is Not Entitled to Attorney
Fees.

¶36 DME’s next argument is that the trial court erred in
awarding Francis the attorney fees he incurred in pursuing his
claim for wages. Francis requested fees under section 34-27-1,
which reads as follows:

Whenever a mechanic, artisan, miner, laborer,
servant, or other employee shall have cause to
bring suit for wages earned and due according to
the terms of his employment and shall establish by
the decision of the court that the amount for which
he has brought suit is justly due, and that a
demand has been made in writing at least fifteen
days before suit was brought for a sum not to
exceed the amount so found due, then it shall be
the duty of the court before which the case shall be
tried to allow to the plaintiff a reasonable attorneys’
fee in addition to the amount found due for wages,
to be taxed as costs of suit.

Utah Code Ann. § 34-27-1 (LexisNexis 2011).5 DME argues that
Francis’s claim must fail because he failed to make a written
demand for his wages at least fifteen days prior to filing suit. We
need not resolve this specific claim because we conclude that
Francis’s claim fails on a different ground.

5. Because the current versions of the statutes cited in this
opinion do not differ from the versions in effect at the time of
trial, we cite the current versions as a courtesy to the reader.

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¶37 In order to recover attorney fees under section 34-27-1, an
employee must make a demand for unpaid wages ‚in writing at
least fifteen days before suit was brought for a sum not to exceed
the amount‛ that is later established by the court to be ‚justly
due.‛ Id. (emphasis added). Neither party contends that this
language is ambiguous. Thus, ‚we look to the plain meaning of
[the] unambiguous statutory language.‛ Pickett v. Utah Dep’t of
Commerce, 858 P.2d 187, 191 (Utah Ct. App. 1993). ‚And [w]hen
discerning the plain meaning of the statute, terms that are used
in common, daily, nontechnical speech, should, in the absence of
evidence of a contrary intent, be given the meaning which they
have for laymen in such daily usage.‛ Francis v. State, 2013 UT
65, ¶ 41, 321 P.3d 1089 (alteration in original) (citation and
internal quotation marks omitted). Using this plain meaning
approach, we conclude that section 34-27-1 requires a demand
for unpaid wages not to exceed the ultimate judgment. In other
words, recovery of attorney fees is authorized only when the
employee has obtained a judgment in an amount equivalent to
or higher than the amount he or she sought to recover.

¶38 Francis sent DME a letter on April 6, 2005, claiming that
DME owed him ‚approximately $15,000 in commissions . . . for
sales he made while still employed with the company.‛ For
purposes of appeal, we will assume without deciding that this
letter constitutes a written demand for unpaid wages that
complies with section 34-27-1. But because Francis’s ‚demand‛
letter sought $15,000 and he has recovered just $9,700, he has
failed to meet the statute’s requirement that his demand be in ‚a
sum not to exceed the amount so found *to be+ due.‛ See Utah
Code Ann. § 34-27-1. Thus, we vacate the award of attorney fees.

D. DME Has Not Shown the Trial Court Erred in Applying
Section 15-1-1 of the Utah Code.

¶39 DME’s final argument is that the trial court erred in
awarding Francis prejudgment interest at the rate set in Utah
Code section 15-1-1. That statute provides that ‚*u+nless parties

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Francis v. National DME

to a lawful contract specify a different rate of interest, the legal
rate of interest for the loan or forbearance of any money, goods,
or chose in action shall be 10% per annum.‛ Utah Code Ann.
§ 15-1-1(2) (LexisNexis 2013).

¶40 The parties offer competing interpretations of this statute.
DME argues that because this case does not concern a ‚loan or
forbearance,‛ the statute does not apply. In other words, DME
claims that the ‚money, goods, or chose in action‛ clause is
simply a list of the types of loans or forbearances that fall under
this statute. In support of this interpretation, DME points to a
footnote in Consolidation Coal Co. v. Utah Division of State Lands &
Forestry, 886 P.2d 514 (Utah 1994), abrogated on other grounds by
State ex rel. School & Inst. Trust Land Admin. v. Mathis, 2009 UT 85,
223 P.3d 1119, where Chief Justice Zimmerman expressed, in
dicta and individually rather than as part of the panel, ‚serious
reservations‛ about precedent that ‚purports to tie prejudgment
interest rates in all contract cases to the section 15-1-1 rate in
effect at the time the contract was signed.‛ Id. at 524 n.13. Chief
Justice Zimmerman stated that, in his view, the plain language
of the statute ‚seems to indicate that the section was intended to
apply only to a ‘loan or forbearance’ of ‘money, goods or chose
in action’‛ and noted the subject of Consolidation Coal was ‚the
sale of mineral rights, not a loan or forbearance.‛ Id. (citation
omitted); see also Wilcox v. Anchor Wate Co., 2007 UT 39, ¶ 45, 164
P.3d 353 (acknowledging that Consolidation Coal implied in dicta
that section 15-1-1 ‚does not necessarily even apply in all
contract cases‛). DME argues that, as in Consolidation Coal, this
case also does not include a ‚loan or forbearance‛ and so a rate
of interest other than the 10% rate provided in section 15-1-1
should apply. Specifically, it advocates for application of a 3.28%
interest rate because that was ‚the post judgment rate of interest
for 2004, which is the year that National DME failed to pay
commissions to Mr. Francis.‛

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¶41 Francis, on the other hand, asserts that section 15-1-1
applies generally to all choses in action and that the absence of a
‚loan or forbearance‛ does not matter. He points us to Sundial
Inc. v. Villages at Wolf Hollow Condominium Homeowner’s Ass’n,
Inc., 2013 UT App 223, 310 P.3d 1233. In that case, the court
quoted section 15-1-1 with the following alterations: ‚‘*T]he legal
rate of [prejudgment] interest for . . . any . . . chose in action shall
be 10% per annum.’‛ Id. ¶ 8. This recitation of the statute implies
that choses of action qualify for the statutory rate regardless of
whether a loan or forbearance is involved and that ‚loan or
forbearance‛ applies only to the word ‚money.‛ See id. Though
the question before us now was not before those courts, section
15-1-1 has been applied in other cases involving a chose in action
instead of a loan or forbearance. See, e.g., Encon Utah, LLC v. Fluor
Ames Kraemer, LLC, 2009 UT 7, ¶¶ 50–55 & n.20, 210 P.3d 263
(affirming the trial court’s application of section 15-1-1 to a
breach of contract claim); Mont Trucking, Inc. v. Entrada Indus.,
Inc., 802 P.2d 779, 782 (Utah Ct. App. 1990) (same); Fitzgerald v.
Critchfield, 744 P.2d 301, 304 (Utah Ct. App. 1987) (same).

¶42 A third possible interpretation of section 15-1-1 reveals
itself in Judge Bench’s separate opinion on the prejudgment
interest issue in Consolidation Coal. See 886 P.2d at 529 n.1 (Bench,
J., concurring and dissenting). In response to Chief Justice
Zimmerman’s concern that section 15-1-1 does not apply to all
contract claims, Judge Bench reasoned that ‚*p+rejudgment
interest is designed to compensate the nonbreaching party that
finds itself, by virtue of the breach, in the position of loaning
money or forbearing what is owed by the breaching party.‛ Id.
(emphasis added). And ‚because of the underpayment of
royalties by [one party], the [responding party] found itself in
the position of loaning or forbearing money it was owed.‛ Id.
Judge Bench’s interpretation of ‚loan or forbearance‛ to include
the natural result of withholding by one party of funds it legally
owes to another seems to find support in the general policy
underlying the concept of prejudgment interest. See, e.g., Trail

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Francis v. National DME

Mountain Coal Co. v. Utah Div. of State Lands & Forestry, 921 P.2d
1365, 1370 (Utah 1996) (‚As a matter of public policy, an award
of prejudgment interest simply serves to compensate a party for
the depreciating value of the amount owed over time and, as a
corollary, deters parties from intentionally withholding an
amount that is liquidated and owing.‛); see also L & A Drywall,
Inc. v. Whitmore Constr. Co., 608 P.2d 626, 629 (Utah 1980) (stating
that prejudgment interest ‚represents an amount awarded as
damages due‛ to a party’s failure or delay in paying the amount
owed under a contract).

¶43 The question of whether an action must specifically be a
‚loan or forbearance‛ was not at issue in either Consolidation Coal
or Sundial. See Consolidation Coal, 886 P.2d at 524 n.13; Sundial,
2013 UT App 223, ¶¶ 7–10. Indeed, Chief Justice Zimmerman
noted in Consolidation Coal that ‚because *the responding party+
has failed to raise this issue and its resolution is not necessary for
a disposition of this case, we decline to address it.‛ 886 P.2d at
524 n.13. We have found no case that squarely addresses the
correct interpretation of the phrase ‚loan or forbearance of any
money, goods, or chose in action.‛ See Utah Code Ann.
§ 15-1-1(2).

¶44 Normally, ‚*w+hen interpreting statutory language, we
first examine the statute’s plain language and resort to other
methods of statutory interpretation only if the language is
ambiguous.‛ State v. Masciantonio, 850 P.2d 492, 493 (Utah Ct.
App. 1993). Here, the fact that varying interpretations exist in
other cases suggests that interpreting this statute requires a more
complex analysis on our part than DME’s sparse briefing seems
to justify. DME references only two authorities in support of its
position—Chief Justice Zimmerman’s individual footnote in
Consolidation Coal, 886 P.2d at 524 n.13, and a case that merely
recognizes the possibility that all contracts might not be
governed by section 15-1-1, see Wilcox, 2007 UT 39, ¶ 45. DME
fails to engage with the authority raised by Francis and does not

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Francis v. National DME

acknowledge any of the other ways in which this statute has
been applied or interpreted. We conclude that DME’s analysis is
simply not sufficient to convince us that the trial court erred
when it applied section 15-1-1 in accordance with at least one of
the interpretations of that statute available to it, and we have not
been placed in a position to adequately address the issue of
interpretation on the case before us. See Nebeker v. Summit
County, 2014 UT App 244, ¶ 27, 338 P.3d 203 (‚Even if a careful
analysis of [pertinent case law] might convince us that the facts
of this case mandate one result or the other, we will not conduct
that analysis on a party’s behalf.‛ (citation and internal
quotation marks omitted)). Accordingly, we affirm the trial
court’s application of the 10% interest rate established in section
15-1-1.

II. Francis’s Cross-Appeal

¶45 We now turn to the two issues raised by Francis in his
cross-appeal. First, he argues that the trial court erred in
granting DME’s motion for a directed verdict with respect to his
intentional interference with economic relations claim (the
interference claim). Second, Francis argues that the court should
have allowed him to testify to the contents of a voicemail
message he says he received from his BSN supervisor about the
reason BSN let him go.

A. The Trial Court Erred in Entering a Directed Verdict on
Francis’s Interference Claim.

¶46 Francis asserts that he introduced enough evidence to
support a verdict in his favor on the interference claim and that
therefore it ought to have been submitted to the jury. We agree.

¶47 Our supreme court has explained that ‚*a+ trial court is
justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in

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Francis v. National DME

the non-moving party’s favor.‛ Merino v. Albertsons, Inc., 1999
UT 14, ¶ 3, 975 P.2d 467. Thus, we will affirm the trial court’s
grant of DME’s motion for a directed verdict on the interference
claim only if there was ‚no competent evidence that would
support a verdict‛ in Francis’s favor. See id. Because we conclude
that there was competent evidence that could have supported a
verdict for Francis on the interference claim, we reverse.

¶48 In order to recover for intentional interference with
economic relations, one of the elements the plaintiff must prove
is that the defendant ‚caus[ed] injury to the plaintiff.‛ Eldridge v.
Johndrow, 2015 UT 21, ¶ 13, 345 P.3d 553 (citation and internal
quotation marks omitted). The trial court granted DME’s motion
because it concluded that Francis had failed to present sufficient
evidence regarding causation. That is, it did not believe that
Francis had presented evidence regarding the causal link
between the communications between BSN and DME regarding
the alleged noncompete agreement and Francis’s termination
from BSN.

¶49 Our supreme court has indicated that an interference
claim requires proof of ‚proximate cause.‛ Pratt v. Prodata, Inc.,
885 P.2d 786, 789 (Utah 1994), overruled on other grounds by
Eldridge, 2015 UT 21. Generally, ‚the question of proximate cause
raises an issue of fact to be submitted to the jury for its
determination.‛ Harline v. Barker, 912 P.2d 433, 439 (Utah 1996)
(citation and internal quotation marks omitted). Proximate cause
is defined as ‚that cause which, in natural and continuous
sequence[] (unbroken by an efficient intervening cause),
produces the injury and without which the result would not
have occurred. It is the efficient cause—the one that necessarily
sets in operation the factors that accomplish the injury.‛ Id.
(alteration in original) (citation and internal quotation marks
omitted). And the court has held that proximate cause may be
demonstrated by circumstantial evidence: ‚Jurors may not
speculate as to possibilities; they may, however, make justifiable

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Francis v. National DME

inferences from circumstantial evidence to find negligence or
proximate cause.‛ Lindsay v. Gibbons & Reed, 497 P.2d 28, 31
(Utah 1972).

¶50 In Harding v. Atlas Title Insurance Agency, Inc., 2012 UT
App 236, 285 P.3d 1260, we discussed the issue of using
circumstantial evidence (i.e., inferences) to show proximate
cause. Id. ¶¶ 7–8. In that case, we observed that

[w]hile it is sometimes subtle, there is in fact a
difference between drawing a reasonable inference
and merely speculating about possibilities. [A]n
inference is a deduction as to the existence of a fact
which human experience teaches us can reasonably
and logically be drawn from proof of other facts.
On the other hand, speculation is defined as the act
or practice of theorizing about matters over which
there is no certain knowledge. The difference lies in
the existence of underlying facts supporting the
conclusion. In the case of a reasonable inference,
there is at least a foundation in the evidence upon
which the ultimate conclusion is based; in the case
of speculation, there is no underlying evidence to
support the conclusion. Thus, so long as there
exists sufficient evidence upon which a reasonable
inference regarding proximate cause may be drawn,
summary judgment is inappropriate.

Id. ¶ 7 (second alteration in original) (emphasis added) (citations
and internal quotation marks omitted).

¶51 In this case, when the evidence is viewed in a light most
favorable to Francis, there was ‚at least a foundation in the
evidence upon which the ultimate conclusion‛ of proximate
cause could have been based. See id. DME sent a letter to Francis
on June 17, 2004, threatening to sue to enforce an alleged
noncompete agreement if Francis did not leave his employment

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at BSN. DME also sent a copy of the letter to BSN. BSN was
concerned enough to then question Francis about the alleged
noncompete. But Francis’s assurances that he had never signed a
noncompete agreement with DME were apparently insufficient
to allay BSN’s concerns, as the company wrote directly to DME
on July 14, 2004, in order to ‚coordinate . . . regarding Mr.
Francis’[s] status and obligations.‛ DME never responded to this
letter, and the next written communication Francis received from
BSN was the termination email dated August 12, 2004.

¶52 Thus, BSN terminated Francis just two months after it
received notice that DME was threatening legal action against
Francis for violation of a noncompete agreement precipitated by
BSN’s hiring him. In addition, BSN had also been concerned
enough to approach both Francis and DME to discuss the
noncompete agreement and its implications for the relationship
between BSN and Francis. The discussion with Francis failed to
resolve BSN’s concerns, and the lack of any response from DME
could not have been reassuring. We believe that the jury
reasonably could have inferred from this evidence that the
alleged noncompete agreement was the proximate cause of
BSN’s decision to terminate Francis. Although alternative
explanations are possible, ‚*a+ directed verdict is only
appropriate when the court is able to conclude, as a matter of
law, that reasonable minds would not differ on the facts to be
determined from the evidence presented.‛ Management Comm. of
Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652
P.2d 896, 897–98 (Utah 1982). As we have discussed, that is not
the case here: the inferences that could reasonably have been
drawn from the evidence presented at trial were sufficient to
raise an issue of fact as to whether DME’s actions caused BSN to
terminate Francis. Accordingly, a directed verdict was
inappropriate. Cf. Kerr v. City of Salt Lake, 2013 UT 75, ¶ 38, 322
P.3d 669 (‚We uphold a trial court’s denial of a directed verdict
if the evidence at trial raised a question of material fact which
precluded judgment as a matter of law.‛ (citation and internal

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quotation marks omitted)). We therefore reverse the trial court’s
grant of a directed verdict on the interference claim and remand
this case for further proceedings consistent with this decision. 6

B. The Trial Court Correctly Determined that Evidence
Regarding the Voicemail Was Inadmissible Hearsay.

¶53 Francis sought to testify at trial about the contents of a
voicemail message he received from his BSN supervisor
concerning the circumstances of his termination. According to
Francis, his supervisor told him in a voicemail that ‚because
we’re going to an employee/employer relationship, human
resources feels like the noncompete agreement precludes my
being able to keep you on in your territory‛ and that ‚he had
sent *Francis+ a letter of release.‛ (Emphasis omitted.) DME filed
a motion in limine to exclude Francis’s testimony because it was
hearsay. The trial court agreed. Francis argues that the trial court
abused its discretion in ruling that his testimony regarding the
voicemail’s content was inadmissible hearsay. He argues this
error was prejudicial because the evidence was ‚material to the
issue of causation‛ in that it tied his firing to DME’s actions with
respect to the alleged noncompete agreement. In the alternative,
Francis argues that even if his testimony was hearsay, it was
admissible under the state of mind exception to the hearsay rule.
See Utah R. Evid. 803(3). As this issue might arise again on
remand, we address it in order to provide the trial court with
some guidance.

¶54 The Utah Rules of Evidence define ‚hearsay‛ as ‚a
statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence

6. Because we conclude that DME’s motion for a directed verdict
was granted in error, we need not address Francis’s argument
that the trial court also erred when it later refused to reconsider
its decision to grant the motion.

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Francis v. National DME

to prove the truth of the matter asserted in the statement.‛ Utah
R. Evid. 801(c). Hearsay evidence is generally inadmissible
unless an exception applies. Id. R. 802; id. R. 803 (identifying
hearsay exceptions).

¶55 We agree with DME that the proffered statements
constitute hearsay. Francis contends the statements are not
hearsay because he was not offering the contents of the
voicemail to prove that a non-compete agreement existed, but to
provide a ‚context *for+ the termination,‛ i.e., ‚to show that BSN
had knowledge of a non-compete agreement.‛ But his proposed
use of the evidence goes beyond that; he argues that the
statements aid in ‚understanding . . . the reason for his
termination,‛ in particular that ‚BSN connected the noncompete
to its [dis]continuation of Mr. Francis’s contract.‛ Thus, it is
apparent that Francis offered the voicemail statements for their
truth. Accordingly, we conclude the trial court did not err in
concluding that the testimony, as presented, was ‚being offered
to prove exactly what’s contained therein*,+ [t]hat [BSN]
terminated him because [it was] told that he was subject to a
noncompete clause.‛ In short, the court properly classified
Francis’s proposed testimony as hearsay because, according to
Francis himself, the voicemail statements would only be relevant
if offered to prove the truth of the matter asserted in the
statement—that Francis was fired by BSN because of DME’s
assertions that Francis’s employment with BSN violated a
noncompete agreement between DME and Francis.

¶56 Francis claims in the alternative that his testimony about
the voicemail should have been admitted under the state of
mind exception to the hearsay rule. The state of mind exception
is described in rule 803 as a ‚statement of the declarant’s then-
existing state of mind . . . or emotional, sensory, or physical
condition . . . but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.‛ Utah R. Evid. 803(3). To

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Francis v. National DME

fall within the state of mind exception, a statement must be
‚expressly assertive of the present state of mind or bodily
condition . . . of the declarant.‛ R. Collin Mangrum & Dee
Benson, Mangrum & Benson on Utah Evidence 768 (2013–14). Such
a statement is admissible if

(i) the statement was made under circumstances
that indicate its reliability and (ii) it is relevant to
show intent, plan, motive, design, malice, or ill will
when the defendant’s state of mind is an issue in
the case or (iii) it is relevant to prove or explain acts
or conduct of the defendant.

Id. at 783 (citation and internal quotation marks omitted); see also
State v. Dibello, 780 P.2d 1221, 1225, 1228 (Utah 1989) (allowing
testimony that an alleged murderer threatened to kill the victim
if she ever left him because a jury could infer the defendant’s
intent from his threats).

¶57 And if a statement is ‚offered to prove conduct, then the
statement . . . must relate to the intent (rather than memory) of
the declarant‛ to commit an act in the future rather than a past
act. R. Collin Mangrum & Dee Benson, Mangrum & Benson on
Utah Evidence 783–84, 788 (2013–14); see also Shepard v. United
States, 290 U.S. 96, 98, 103, 106 (1933) (holding a victim’s
statement inadmissible under this exception because the
statement ‚faced backward and not forward‛ and ‚spoke to a
past act‛); Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295–96
(1892) (allowing hearsay evidence under the state of mind
exception because the evidence showed the future intentions of a
potential victim). In other words, hearsay statements
demonstrating future intent are admissible under this exception
but statements explaining past actions are not.

¶58 Francis argues that his statements about the voicemail fit
into the state of mind exception because they show the
‚motivation and state of mind‛ behind BSN’s decision to

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Francis v. National DME

terminate his employment contract. However, the trial court
correctly determined that the state of mind exception does not
apply here because the voicemail stated the motivation for a past
action rather than a present state of mind or an intended future
act. Indeed, Francis’s proffer explicitly stated that the supervisor
had already sent Francis the termination letter. Because the
supervisor’s call came after BSN had sent the termination letter,
the trial court could reasonably have concluded that BSN had
already made the decision to terminate Francis’s employment
before the voicemail and that the statements were therefore
about BSN’s motivation for a past action rather than a present or
future intention.

¶59 We conclude it was thus within the trial court’s discretion
to decide that the contents of the voicemail related to conduct
that had already occurred, as opposed to a ‚statement of the
declarant’s then-existing state of mind,‛ and that, accordingly,
the proffered statement did not fall within the state of mind
exception to the hearsay rule. See Utah R. Evid. 803(3). As the
circumstances under which this evidence might be offered might
differ on remand, however, nothing in our analysis here is meant
to restrict the trial court’s evaluation of the issue when faced
with it anew.

III. Attorney Fees on Appeal

¶60 The final matter before us is Francis’s request for attorney
fees incurred in this appeal. ‚A party who is awarded fees below
and prevails on appeal is entitled to recover its attorney fees
reasonably incurred on appeal.‛ Osmond Lane Homeowners Ass'n
v. Landrith, 2013 UT App 20, ¶ 33, 295 P.3d 704. Here, the trial
court determined that Francis was entitled to attorney fees for
his unpaid wage claim pursuant to section 34-27-1 of the Utah
Code. However, because we have concluded that the trial court’s
award of fees on Francis’s wage claim must be vacated, see supra
¶ 38, there is no longer a basis for an award of fees on appeal. See
Osmond Lane, 2013 UT App 20, ¶ 33.

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Francis v. National DME

CONCLUSION

¶61 The trial court acted within its discretion when it excluded
evidence regarding the circumstances of DME’s termination of
Francis’s employment. The trial court also acted within its
discretion when it excluded as inadmissible hearsay Francis’s
testimony regarding the contents of the voicemail he received
from his BSN supervisor. And we affirm the trial court’s
application of the interest rate set forth in section 15-1-1.

¶62 We conclude, however, that the trial court erred when it
denied DME’s motion to reduce the $24,000 judgment for past
commissions, and we order the amount of that judgment
reduced to $9,700. The trial court also erred in its interpretation
and application of section 34-27-1. We therefore vacate the
award of attorney fees. We further conclude that the trial court
erred when it granted DME’s motion for a directed verdict with
respect to Francis’s interference claim. Accordingly, we reverse
and remand for further appropriate proceedings on that claim
for relief.

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