Smith v. Volkswagen Southtowne

2024 UT App 33

THE UTAH COURT OF APPEALS

LOIS SMITH,
Appellee,
v.
VOLKSWAGEN SOUTHTOWNE, INC.,
Appellant.

Opinion
No. 20220957-CA
Filed March 14, 2024

Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 130908362

Rodney R. Parker and Nathanael J. Mitchell,
Attorneys for Appellant
Michael A. Worel, Colin P. King, and Walter M.
Mason, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 A plaintiff in a personal injury case, Lois Smith, obtained a
verdict of $2,700,000, but that verdict and judgment were set aside
by the trial court. Three years later, the Utah Supreme Court
determined that the trial court had erred in setting aside the
verdict. On remand, the trial court awarded over $400,000 in
postjudgment interest. The defendant, Volkswagen SouthTowne,
Inc. (Volkswagen) appeals the award of interest. We affirm.
Smith v. Volkswagen SouthTowne

BACKGROUND

¶2 In December 2013, Lois Smith sued Volkswagen for,
among other claims, product liability and negligence after a
cracked fuel line in the car she purchased resulted in her suffering
carbon monoxide poisoning.

¶3 In June 2018, following an eight-day trial, the jury returned
a verdict in favor of Smith. The jury awarded Smith $2,700,000 in
general damages. On August 27, 2018, the trial court entered
judgment on the verdict (2018 Judgment) for $2,700,000 in general
damages plus $10,030.35 in costs, see Utah R. Civ. P. 54(d)
(providing for an award of costs to the prevailing party), as well
as “[postjudgment] interest at the rate of 3.76%” pursuant to Utah
Code section 15-1-4.

¶4 Volkswagen filed motions for judgment as a matter of law, 1 0F

see id. Utah R. Civ. P. 50, and a new trial, see R. 59. 2 In April 2019,
1F

the trial court granted Volkswagen’s motion for judgment as a
matter of law and conditionally granted the motion for a new trial.
Smith appealed.

¶5 Three years later, in June 2022, the Utah Supreme Court
reversed the trial court’s decision. See Smith v. Volkswagen

1. Throughout the briefing, the parties refer to the motion as one
for judgment notwithstanding the verdict. However, the motion
was a rule 50 motion for judgment as a matter of law. See Smith v.
Volkswagen SouthTowne, Inc., 2022 UT 29, ¶¶ 2–4, 513 P.3d 729. To
avoid perpetuating the use of old terminology, we use the
language consistent with the current Utah Rules of Civil
Procedure. See Utah R. Civ. P. 50 advisory committee notes to 2016
amendment (noting the change in terminology).

2. Volkswagen also filed a motion for relief from judgment, see
Utah R. Civ. P. 60(b), which the court determined was moot in
light of its decision on the other two motions.

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SouthTowne, Inc., 2022 UT 29, ¶ 4, 513 P.3d 729. Our supreme court
ordered “the jury’s verdict reinstated.” Id. ¶ 150.

¶6 Following the remand, on September 19, 2022, the trial
court entered a new judgment (2022 Judgment) identical to the
2018 Judgment except that it included accrued interest “beginning
August 27, 2018 in the amount of $407,588.56 with a per diem of
$279.17 after August 26, 2022.” This brought the total judgment
entered to $3,117,618.91. The trial court also noted that it denied
Volkswagen’s objection to the proposed judgment, an objection
which Volkswagen made to the award of postjudgment interest
from August 28, 2018, to the date of the 2022 Judgment. 3 2F

Volkswagen appeals.

ISSUE AND STANDARD OF REVIEW

¶7 On appeal, Volkswagen argues that the trial court erred by
awarding Smith postjudgment interest from the date of the 2018
Judgment. “We review the award of postjudgment interest, a
question of law,” for correctness. Bailey-Allen Co. v. Kurzet, 876
P.2d 421, 427 (Utah Ct. App. 1994).

ANALYSIS

¶8 Volkswagen’s argument against the trial court’s order of
postjudgment interest is twofold—first, that the court
misinterpreted the postjudgment interest statute and second, that
the court violated the mandate rule. We address each argument
in turn.

3. Recognizing that the principal amount of the judgment was no
longer subject to challenge, Volkswagen paid Smith $2,710,030.35
in August 2022, withholding only the postjudgment interest
amount.

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I. Postjudgment Interest Statute

¶9 In Utah, “final civil and criminal judgments of the district
court and justice court shall bear interest at the federal
postjudgment interest rate . . . plus 2%.” Utah Code § 15-1-4(3)(a).
The parties’ dispute on appeal is not over whether postjudgment
interest applies here; rather, the disagreement is over what point
in time the court had statutory authority to apply the interest. In
reaching its decision to award postjudgment interest from the
2018 Judgment date to the present, the trial court relied on Hewitt
v. General Tire & Rubber Co., 302 P.2d 712 (Utah 1956), where our
supreme court stated that it could not “see any good reason why
[a] plaintiff should lose [postjudgment] interest because [a]
defendant was able to convince the trial court to make an
erroneous ruling.” Id. at 714.

¶10 Volkswagen argues that the trial court erred in relying on
Hewitt as the statutory scheme has since changed. At the time of
the decision in Hewitt, the postjudgment interest statute stated
that “any judgment rendered on a lawful contract” was subject to
postjudgment interest. Id. at 713 (cleaned up). The statute was
amended in 1999 to more broadly address other civil and criminal
judgments. See Act of Feb. 23, 1999, ch. 279, § 1, 1999 Utah Laws
919, 919. Then in 2014, the legislature added the modifier “final”
to judgments which fell under subsection 3(a), and it defined
“[f]inal judgment” as “the judgment rendered when all avenues
of appeal have been exhausted.” See Act of Mar. 13, 2014, ch. 281,
§ 1, 2014 Utah Laws 1174, 1174. In 2017, the legislature deleted the
definition for final judgment but kept “final” as a modifier for
judgments in subsection (3)(a). See Act of Mar. 9, 2017, ch. 379, § 1,
2017 Utah Laws 2090, 2090. The legislature also added subsection
(4) to outline postjudgment interest for a “judgment under $10,000
in an action regarding the purchase of goods and services,” but
that subsection did not employ the “final” modifier. Id. Any
amendments since that time do not include changes relevant here.
See Utah Code § 15-1-4. Volkswagen would have this court apply
the definition for final judgment deleted from the 2014 version of

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the statute, arguing that despite this deletion, there is “no
indication that the legislature intended” the statute as amended
today “to change the nature of the finality requirement for
judgments over $10,000.” Volkswagen further contends, in
reference to subsections (3)(a) and (4), that “reading the statute to
permit interest from the date of entry of both ‘final’ judgments
over $10,000 and ‘judgments’ under $10,000 violates the principle
that readings should be avoided that render portions of the statute
redundant.” We disagree.

¶11 The statute is not redundant under its express terms, as
subsection (3)(a) applies to judgments not covered by subsection
(4) while subsection (4) applies only to certain judgments under
$10,000. See id. § 15-1-4(3)(a)–(4). We acknowledge that
throughout the statute’s evolution, the legislature could have
chosen to amend the statute to combine the two subsections into
a single subsection, but the legislature did not do so, nor did it
have to.

¶12 More importantly, we cannot ignore the legislature’s
choice to leave final judgment undefined when it deleted the
definition from the current postjudgment interest statute. When
interpreting a statute, “we presume that the legislature was
deliberate in its choice of words.” 2 Ton Plumbing, LLC v.
Thorgaard, 2015 UT 29, ¶ 31, 345 P.3d 675 (cleaned up). If the
legislature removes or replaces language in a statute, “in the
absence of any clear legislative indication to the contrary, we take
the [l]egislature at its word.” State v. Wallace, 2006 UT 86, ¶¶ 10–
12, 150 P.3d 540; see id. ¶ 16 (concluding that courts cannot insert
terms that the legislature “explicitly removed by amendment”);
accord Joe v. Lebow, 670 N.E.2d 9, 19 (Ind. Ct. App. 1996) (“When a
statute contains language which is deleted by the legislature, we
presume that the legislature intended the deletion to represent a
change in the law.”); State v. Eversole, 889 S.W.2d 418, 425 (Tex.
App. 1994) (“It is a general rule of statutory construction that
when the legislature amends a particular statute and omits certain
language of the former statute in its amended version, the

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legislature specifically intended that the omitted portion is no
longer the law. Every word excluded from a statute must be
presumed to have been excluded for a reason.”); Nello L. Teer Co.
v. North Carolina Dep't of Transp., 625 S.E.2d 135, 138 (N.C. Ct. App.
2006) (“[I]f the legislature deletes specific words or phrases from
a statute, it is presumed that the legislature intended that the
deleted portion should no longer be the law.”). So, quite the
opposite of Volkswagen’s argument is true here, as the choice to
delete the final judgment definition is in fact a clear indication that
the legislature intended the nature of the finality requirement to
change. Following our practice for statutory interpretation, we
presume the legislature’s choices to delete the final judgment
definition and add subsection (4) for postjudgment interest on
certain judgments under $10,000—noticeably excluding the
modifier “final” in that subsection—was deliberate. See 2 Ton
Plumbing, 2015 UT 29, ¶ 31. As Smith points out, with the word
“final” appearing only in subsection (3)(a), the sole effect of the
definition’s deletion was to alter the meaning of subsection (3)(a)
rather than subsection (4). Thus, having determined that the
deleted definition of final judgment no longer applies, we are left
to determine how to define the term in the context of this case.

¶13 “When the legislature borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning
from which it was taken.” Oliver v. Utah Labor Comm’n, 2017 UT
39, ¶ 33, 424 P.3d 22 (cleaned up); see also Rueda v. Utah Labor
Comm’n, 2017 UT 58, ¶ 33, 423 P.3d 1175 (“The legislature is
entitled to invoke specialized legal terms that carry an
extraordinary meaning. And when it does so we credit the legal
term of art, not the common understanding of the words.”
(cleaned up)); id. ¶ 107 (“[W]e presume that the legislature is
aware of legal terms and their meanings . . . .”). As the legislature
chose not to define final judgment, which is a legal term of art, we
will use the traditional legal definition. Based on the legal
tradition of centuries of practice in our judicial system, a final

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judgment “ends the controversy between the parties” prior to
appeal. Salt Lake City Corp. v. Layton, 600 P.2d 538, 539 (Utah 1979)
(“As a general rule an appeal may be taken to this court only from
a final order or judgment. A judgment is final when it ends the
controversy between the parties litigant.” (cleaned up)); see also
Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 34 n.22, 201 P.3d
966 (“We have defined a final judgment as one that ends the
controversy between the parties.” (cleaned up)); Bradbury v.
Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (“An appeal is improper if it
is taken from an order or judgment that is not final . . . . For an
order or judgment to be final, it must dispose of the case as to all
the parties, and finally dispose of the subject-matter of the
litigation on the merits of the case. In other words, a judgment is
final when it ends the controversy between the parties litigant.”
(cleaned up)).

¶14 Here, the 2018 Judgment came when, at the conclusion of
an eight-day trial, the jury returned a verdict in favor of Smith and
the trial court entered judgment on the verdict. There was nothing
left to be decided beyond whether to file an appeal and later
whether to grant a motion for judgment as a matter of law;
therefore, the 2018 Judgment was a final judgment to which
postjudgment interest statutorily applied. See Utah Code § 15-1-
4(3)(a). Thus, though the statute has gone through numerous
iterations since the time of the Hewitt decision, the statutory
scheme as it stands today does not impact the applicability of
Hewitt, and postjudgment interest applies from the date of the
2018 Judgment. Smith should not lose her interest because
Volkswagen “was able to convince the trial court to make an
erroneous ruling.” Hewitt, 302 P.2d at 714. 4
3F

4. Volkswagen points to Mason v. Western Mortgage Loan Corp., 754
P.2d 984 (Utah Ct. App. 1988), which this court distinguished
from Hewitt. However, while Hewitt provides a near precise
factual and procedural comparison to the present case, the
(continued…)

20220957-CA 7 2024 UT App 33
Smith v. Volkswagen SouthTowne

II. Mandate Rule

¶15 Volkswagen further argues that the trial court’s violation
of the mandate rule led it to erroneously rely on Hewitt v. General
Tire & Rubber Co., 302 P.2d 712 (Utah 1956). “Under the mandate
rule, issues resolved by an appellate court bind the trial court on
remand, and generally bind this court should the case return on
appeal after remand.” Wasatch County v. Okelberry, 2015 UT App
192, ¶ 30, 357 P.3d 586, (cleaned up), cert. denied, 364 P.3d 48 (Utah
2015). As noted by the trial court, the facts in Hewitt and the case
before us are “materially similar.” In Hewitt, the jury returned a
verdict in favor of the plaintiff. 302 P.2d at 712. The clerk signed
and entered the judgment on the verdict. Id. The defendant
“renewed its motion for directed verdict,” which the trial court
granted, thereby setting aside the verdict and judgment entered.
Id. The court then entered a new judgment in favor of the
defendant. Id. On appeal, our supreme court reversed the
judgment, ordering that the trial court’s judgment be set aside. Id.
The only relevant discrepancy between Hewitt and this case is that
in Hewitt the supreme court ordered “the judgment upon the jury
verdict be reinstated.” Id. In the present case, the supreme court
ordered “the jury’s verdict reinstated.” Smith v. Volkswagen
SouthTowne, Inc., 2022 UT 29, ¶ 150, 513 P.3d 729. Volkswagen
clings to this slight difference by arguing that because of it, Hewitt
is not controlling, and the trial court violated the mandate rule as
“the supreme court did not order the original judgment
‘revitalized.’”

¶16 While our supreme court used the language of “jury’s
verdict” rather than “judgment upon the jury verdict” when it

procedural differences in Mason make it unhelpful. Mason
involved a bench trial after which the judge entered the original
judgment in favor of the defendant rather than the plaintiff. Id. at
985–86. Therefore, as Volkswagen acknowledges, nothing was
being reinstated, and thus Mason is too procedurally askew from
the issue before us to persuade us that it is applicable here.

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remanded after reversing the trial court’s grant of judgment as a
matter of law, the supreme court gave no indication that it
intended any different result on remand from that which occurred
in Hewitt. Smith points out that other courts addressing this issue
have recognized that it is necessary “to consider not merely the
literate form but the substance of the reversal on the previous
appeal,” see Espinoza v. Rossini, 257 Cal. App. 2d 567, 572–73 (Ct.
App. 1967), and provides us with a helpful, factually similar case
from the Missouri Court of Appeals, see Redican v. K Mart Corp.,
785 S.W.2d 578 (Mo. Ct. App. 1990). In Redican, as in Hewitt and
the case before us, the jury returned a verdict in favor of the
plaintiff, which the trial court then set aside, granting the
defendant’s motion for judgment as a matter of law. Id. at 578. The
appellate court reversed the trial court’s ruling and reinstated the
jury’s verdict for the plaintiff. Id. at 580. In Redican, the court
anticipated a question would arise about when postjudgment
interest should run and addressed it by stating,

The judgment is reversed and this cause is
remanded with directions to enter judgment on the
verdict returned on January 25, 1989. The judgment
entered pursuant to this remand shall be effective
from January 25, 1989, and shall bear interest from
that date.

Id. Smith’s argument is well taken: the language in the appellate
court’s mandate in Redican to “enter judgment on the verdict,” id.,
is equivalent to the court’s mandate in the present case ordering
the “jury’s verdict reinstated,” Smith, 2022 UT 29, ¶ 150. 5 While it
4F

is helpful that the Redican court explicitly stated that
postjudgment interest applied from the date of the original
judgment, see 785 S.W.2d at 580, it was not necessary for our

5. As further evidence that Redican v. K Mart Corp., 785 S.W.2d 578
(Mo. Ct. App. 1990), is an appropriate illustrative case here, both
Redican and Hewitt rely on Reimers v. Frank B. Connet Lumber Co.,
273 S.W.2d 348, 349 (Mo. 1954).

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Smith v. Volkswagen SouthTowne

supreme court to do the same given Utah’s prevailing caselaw.
Under Hewitt, postjudgment interest runs from the date of the
original judgment as there is no “good reason why [a plaintiff]
should lose [postjudgment] interest because [a defendant] was
able to convince the trial court to make an erroneous ruling.” 302
P.2d at 714. And Hewitt applies because, again, there is no
indication that the supreme court here intended a different result
than what occurred in Hewitt by reinstating the verdict rather than
by explicitly reinstating the judgment on the verdict. This slight
difference in language is immaterial as its effect is to revitalize
both the verdict and judgment when a judgment as a matter of
law is reversed. See, e.g., Brown v. Medical Mutual Liab. Ins. Society
of Md., 599 A.2d 1201, 1204–05 (Md. Ct. Spec. App. 1992) (“Here,
the [judgment as a matter of law] was, in fact, reversed on appeal,
which means that the original jury verdict must be reinstated as if
it had never been eliminated by the trial court. . . . Simply
mandating that judgment be entered ‘on the verdict of the jury,’
was sufficient to trigger the award of [postjudgment] interest
from that date.” (cleaned up)).

¶17 Thus, the mandate rule was not violated because whether
the supreme court’s mandate is to reinstate the verdict or judgment
on the verdict is inconsequential, and the result is the same—the
original judgment is revitalized.

CONCLUSION

¶18 The trial court properly awarded Smith postjudgment
interest from the date of the 2018 Judgment, as the court acted
within its statutory authority and in line with the applicable
caselaw. Furthermore, the trial court did not violate the mandate
rule as there is no indication that our supreme court intended any
different result from that which occurred on remand when the
trial court awarded the postjudgment interest. We affirm.

20220957-CA 10 2024 UT App 33