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State v. Bruun

Court of Appeals of Utah

September 28, 2017

State of Utah, Appellee,
v.
Allan Bruun and James Diderickson, Appellants.

         Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman Nos. 111903468 and 111903467

          Clifton W. Thompson, Attorney for Appellant Allan Bruun

          Karra J. Porter and J.D. Lauritzen, Attorneys for Appellant James Diderickson

          Sean D. Reyes, Ryan D. Tenney, and Jeffrey S. Gray, Attorneys for Appellee

          Judge Stephen L. Roth authored this Opinion, in which Judge Gregory K. Orme and Senior Judge Pamela T. Greenwood concurred. [1]

          ROTH, JUDGE.

         ¶1 Allan Bruun and James Diderickson appeal their convictions on multiple counts of theft and one count each of a pattern of unlawful activity. They further appeal the restitution the district court ordered for those convictions. We affirm.[2]

         BACKGROUND[3]

         ¶2 In 1989, a Utah County couple (the Victims) bought forty-two acres of land in Saratoga Springs. Although they sold approximately thirteen acres over the years, they retained twenty-nine acres (the Property) as a "nest egg" to fund their retirement.

         ¶3 In August 2007, the Victims entered into two agreements with Bruun and Diderickson (collectively, Defendants) to develop the Property. First, pursuant to a Real Estate Purchase Agreement (REPC), the Victims agreed to sell the Property to Equity Partners LLC, a company in which Defendants held interests through another company, Four Winds Development Group LLC (Four Winds).[4] The purchase price was $3.5 million, with $750, 000 to be paid to the Victims up front. Second, the Victims and Defendants formed Tivoli Properties LLC (Tivoli) to develop the Property, with Equity Partners owning a 75% interest in the company and the Victims together owning the remaining 25% interest. In connection with the formation of Tivoli, the parties executed an operating agreement (the Operating Agreement or the Agreement) setting out their respective interests and describing, among other things, the purpose, structure, and powers of Tivoli. Equity Partners was designated as Tivoli's Managing Member.

         ¶4 Although under the REPC the Victims were to be paid $750, 000 as a down payment toward the purchase of the Property, once the Operating Agreement was signed, Defendants informed the Victims that they were not able to "come up with the money to make the purchase price and continue with [the] purchase agreement as it was." Defendants persuaded the Victims to put the Property up as collateral for a "hard-money loan" to "create some revenue" to begin development. Defendants then entered into a short-term, high-interest loan for the $750, 000, which was secured by the Property. Approximately $350, 000 of the $750, 000 was used to pay off existing mortgages and taxes on the Property, and the remaining money was "put into a checking account . . . for Tivoli Properties." This deposit constituted Tivoli's only operating funds and, according to the prosecution, was intended to fund the initial development, which primarily consisted of completing the "entitlement" process through which the city of Saratoga Springs would approve the development of the Property. The Victims understood that once entitlement was obtained from Saratoga Springs, Tivoli would secure a construction loan with better terms to replace the hard-money loan and fund the actual development of the Property. In accordance with the Operating Agreement, the Victims began receiving monthly distributions from Tivoli's funds as this process went forward.

         ¶5 Unbeknownst to the Victims, Equity Partners entered into a joint venture agreement between Tivoli and Hidden Acres LLC, another of Defendants' companies, for development of property located in Centerville, Utah. The Victims were aware of a Hidden Acres project because Defendants had taken them to visit the property at one point, but they were not told that Tivoli had entered into an agreement to develop the Hidden Acres property, nor did they consent to it. In May 2008, Defendants informed the Victims that they were not able to pay the Victims their regular distributions. When asked why, Defendants responded with a "rough draft of what was spent on what" but they did not provide any receipts. The Victims then accessed the Tivoli account themselves and discovered that the remaining balance had been reduced to only $1, 083. They reviewed the check-payment history over the previous six months and discovered that Defendants had spent thousands of dollars on expenses that appeared to be unrelated to the development of the Property. For example, there were several checks written to Four Winds for thousands of dollars in management fees; a check for more than $30, 000 related to a lot closing at the Hidden Acres development; an earnest money check for purchase of another property; and payments for equipment, landscaping, and dump fees unrelated to the Property. Defendants had not sought the Victims' consent for any of these expenditures, nor were the Victims aware of them until their own investigation.

         ¶6 Around the time the Victims discovered the expenditures from the Tivoli capital account, they found out Tivoli had not made a single payment on the hard-money loan, which was then coming due. To keep the lender from foreclosing on the Property, Defendants asked the Victims to sign an agreement to increase the balance on the short-term loan by another $100, 000. One of the Victims refused to sign and instead filed a notice of default in an attempt to get the Property back and to keep it from being auctioned by the hard-money lender.

         ¶7 In November 2008, the Victims and Defendants, along with Equity Partners, Four Winds, Tivoli, and other interested parties, entered into a settlement agreement (the Settlement). As part of the Settlement, the Victims received title to the Property and $174, 000, which represented proceeds from the sale of .60 acres of the Property to the Utah Department of Transportation (UDOT). In return, the Victims paid $25, 000 to Equity Partners and agreed to release that company from all claims related to its management of Tivoli.

         ¶8 About two and a half years later, in May 2011, the State charged Defendants with a number of criminal offenses related to their dealings with the Victims-twenty-eight counts of theft of varying degrees, targeting individual checks written from the Tivoli operating account, and one count of engaging in a pattern of unlawful activity.

         ¶9 Of central importance in the case was whether Defendants were authorized to make the expenditures represented in the checks. During preliminary hearing proceedings, Defendants argued that the Operating Agreement authorized the expenditures as a matter of law. The magistrate determined, however, that "believable evidence exists to support a conclusion that the checks were unauthorized" under the Operating Agreement and bound Defendants over on the charges.

         ¶10 At trial, Defendants repeated their argument that the Operating Agreement authorized the expenditures, and they note on appeal that "much of the trial was consumed with witnesses reading aloud, and then offering their interpretations of, various language of the Operating Agreement." Indeed, Defendants explained to the jury that the Operating Agreement was "the brains, . . . the rules, . . . the code book for how [members] conduct [themselves]" and that the jurors would read the Agreement and see for themselves that the "purpose of [Tivoli] . . . wasn't just to do the entitlement on [the Property]." Bruun also testified that he believed Defendants were authorized to make the contested expenditures as well as enter into the Hidden Acres joint venture on the basis of their management authority under the Operating Agreement's terms. The State countered that "Tivoli Properties was established with the express purpose of developing [the Property]" and that Defendants spent "nearly a quarter million dollars" "for other purposes, " such as "landscaping, dumping, [and] heavy equipment" unrelated to the Property, as well as "other real estate development projects that the Defendants had up in Davis County." The State elicited extensive testimony from the Victims regarding their understanding of particular provisions of the Operating Agreement relevant to the question of whether the disputed checks were authorized. The State also presented an expert forensic accountant, who opined that the Operating Agreement and other representations made during the parties' association did not authorize the majority of the expenditures at issue.

         ¶11 The trial court admitted the Operating Agreement as an exhibit at trial and provided it to the jurors to use, together with other evidence adduced at trial, to determine whether the various contested expenditures amounted to thefts. Defendants did not request that the court provide a jury instruction construing the Operating Agreement and did not object to the lack of any contract interpretation instructions.

         ¶12 Each of the twenty-eight counts of theft the State brought against Defendants related to individual checks drawn on the Tivoli account. For each of Defendants, the State voluntarily dismissed two counts during trial, and the jury returned not-guilty verdicts on fourteen counts and guilty verdicts on twelve counts. The checks the jury determined to be thefts all represented expenditures for development projects other than the Property. For example, the jury determined that the lot closing payment and the equipment, landscaping, and dump fee expenditures were thefts. The jury also convicted Defendants on the one count of pattern of unlawful activity. As part of their sentences, the trial court ordered Defendants to jointly and severally pay restitution in an amount equal to the value of the checks the jury determined constituted thefts-$189, 574.33.

         ¶13 Defendants appeal their convictions and the restitution order.

         ISSUES

         ¶14 Defendants raise five claims of error. First, they argue that the trial court should have determined as a matter of law that the Operating Agreement authorized Defendants' use of the funds in the Tivoli operating accounts for other development projects or, if the question of authorization was not clear as a matter of law, the court erred when it failed to instruct the jury regarding the Operating Agreement's provisions and effect. In the alternative, Defendants argue that their use of Tivoli's funds was authorized as a matter of law by relevant provisions of the Utah Revised Limited Liability Company Act, see Utah Code Ann. §§ 48-2c-101 to -1902 (LexisNexis 2010), [5] and that the jury should have been instructed accordingly.

         ¶15 Second, Defendants argue that the trial court incorrectly interpreted the theft statute when it allowed the State to charge Defendants with theft of the full value of each of the twelve checks written on the Tivoli operating account rather than limiting the value of the thefts to the Victims' combined 25% interest in the company.

         ¶16 Third, Defendants argue that the trial court failed to instruct the jury on the lesser included offense of wrongful appropriation for each theft count.

         ¶17 Fourth, Defendants argue that the trial court failed to correctly instruct the jury that there was a minimum time frame required to establish a pattern of unlawful activity and that, in any event, the maximum time period encompassing the offenses charged in this case-nine months-was insufficient as a matter of law to support Defendants' convictions.

         ¶18 Fifth, Defendants argue that, in determining restitution, the trial court failed to take into account the effect of the Settlement between Defendants and the Victims.

         ¶19 Finally, Defendants argue that we should reverse under the cumulative error doctrine.

         ANALYSIS

         I. Authorization Under the Operating Agreement and the LLC Act

         ¶20 Defendants were charged with multiple counts of theft under Utah Code section 76-6-404, which requires the State to prove that a defendant "obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." They were charged on the basis of certain checks they wrote from Tivoli's account for expenses that the State claimed were unrelated to development of the Property. Defendants acknowledged that the majority of the disputed checks on the Tivoli account went toward expenses related to Defendants' other development projects-in particular, the Hidden Acres development.

         ¶21 On appeal, Defendants argue that their convictions should be reversed because, as a matter of law, their actions "were expressly authorized by two sources that should have been interpreted, and applied, by the trial court"-the Operating Agreement and Utah's Revised Limited Liability Company Act (the LLC Act or the Act). They contend that the Operating Agreement's provisions-particularly those related to managerial powers-authorized them to enter into joint ventures and make expenditures unrelated to the Property's development, and that, on this basis, the court should have decided that their actions were authorized as a matter of law. In the alternative, they contend that even if the Operating Agreement was ambiguous about the issue of authorization, the court should have sua sponte identified the precise nature of the ambiguity for the jury and appropriately instructed the jury regarding its role in interpreting the Operating Agreement. And although Defendants concede that the issue was not raised below, they argue that the LLC Act also authorized their actions as a matter of law and request that we review the issue under the doctrines of plain error, ineffective assistance of counsel, and manifest injustice. We first address whether the Operating Agreement authorized Defendants' actions and whether the court erred in not instructing the jury regarding contract interpretation. We then address whether the LLC Act authorized their actions.

         A. The Operating Agreement

         ¶22 Defendants argue that the question of whether their actions were authorized should have been decided by the court as a matter of law, not as a question of fact to be sent to the jury.[6] Certainly, if the Operating Agreement unambiguously authorized the expenditures for which Defendants were convicted, the theft counts would have been susceptible to dismissal by the court as a matter of law because the State could not have proved the "unauthorized control" element of the theft offenses. See State v. Burton, 800 P.2d 817, 819 (Utah Ct. App. 1990). In Burton, for example, we reversed the defendant's theft conviction because we determined that "[t]he terms of the contract underlying [the] transaction are unambiguous and create no express duty requiring Burton to pay over the sums received from [the alleged victim]." Id. And we noted in a later case that "we reversed Burton's theft conviction because there was no legal basis for finding that Burton exercised 'unauthorized control' over the funds paid by [the alleged victim] to Burton." State v. Larsen, 834 P.2d 586, 591 (Utah Ct. App. 1992). However, we determined that the agreement at issue in Larsen could not be read to authorize the defendant in that case charged with theft of partnership property "to deal with partnership property as he wished." Id. We reasoned that, "[a]lthough the partnership agreement granted the general partners numerous powers, " it "did not authorize defendant to deal with partnership property in a manner that he knew was not in the partnership's best interests." Id. We concluded that, as a consequence, "there was a legal basis for finding 'unauthorized control', and it was for the jury to decide whether a theft was committed." Id.; cf. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (explaining that, pursuant to the Sixth Amendment's right to trial by jury, "although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence").

         ¶23 Here, because the trial court sent the Operating Agreement to the jury along with all other evidence pertaining to the thefts charged, the court implicitly determined that the Operating Agreement's provisions were either ambiguous as to the element of authorization, see Holladay Bank & Trust v. Gunnison Valley Bank, 2014 UT App 17, ¶ 12, 319 P.3d 747 (explaining what constitutes ambiguity in a contract), or that the Agreement unambiguously did not allow Defendants' actions, cf. Sullivan, 508 U.S. at 277. Either way, the court determined that it was proper for the jury to determine the element of authorization and that the case could not be dismissed on the basis of the Operating Agreement's provisions. Cf. State v. Walker, 2017 UT App 2, ¶ 24, 391 P.3d 380 (explaining that "a fact question, or a mixed question of law and fact, does not morph into a pure legal question for Sixth Amendment purposes merely because the evidence is overwhelming and might be characterized as supporting only one reasonable conclusion as a matter of law"). We conclude that the trial court did not err in submitting the issue of authorization to the jury. In particular, we are not persuaded by Defendants' argument that the Operating Agreement unambiguously authorized Defendants' actions and that, as a result, the trial court ought to have decided the element of authorization in Defendants' favor as a matter of law and dismissed the theft charges against them.

         ¶24 "A contract's interpretation may be either a question of law, determined by the words of the agreement, or a question of fact, determined by extrinsic evidence of intent." Peterson v. Sunrider Corp., 2002 UT 43, ¶ 14, 48 P.3d 918 (citation and internal quotation marks omitted). Thus, it does not follow, as Defendants seem to contend, that contractual language pertinent to an element of a criminal charge must always be construed as a matter of law. Rather, as emphasized in Burton, "[w]e construe unambiguous contracts as a matter of law." 800 P.2d at 819 (emphasis added). "The underlying purpose in construing or interpreting a contract is to ascertain the intentions of the parties to the contract." WebBank v. American Gen. Annuity Service Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139. As a first step, "[w]e look to the writing itself to ascertain the parties' intentions, and we consider [e]ach contract provision . . . in relation to all of the others, with a view toward giving effect to all and ignoring none." Jones v. ERA Brokers Consol., 2000 UT 61, ¶ 12, 6 P.3d 1129 (second alteration and omission in original) (citation and internal quotation marks omitted). "If the language within the four corners of the contract is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law." WebBank, 2002 UT 88, ¶ 19 (citation and internal quotation marks omitted). "However, if the language of the contract is ambiguous such that the intentions of the parties cannot be determined by the plain language of the agreement, " the contract's interpretation becomes a question of fact, and "extrinsic evidence must be looked to in order to determine the intentions of the parties." See id. (citation and internal quotation marks omitted). "A contract is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." Holladay Bank & Trust, 2014 UT App 17, ¶ 12 (citation and internal quotation marks omitted).

         ¶25 Among the major questions at trial related to the authorization element of the theft charges was whether the Operating Agreement limited Tivoli's activities-and hence its expenditures-solely to the Property. The State elicited testimony suggesting that, properly interpreted, the Agreement did just that, while Defendants contended that there was no such constraint. The Operating Agreement contains provisions that appear to support both sides of the question. For example, the Agreement's recitals explain that Tivoli was formed "to and for the sole purpose of investing in, purchasing, selling, granting, or taking an option on lands for investment purposes and/or development, " a relatively expansive statement of the scope of Tivoli's business purpose. See Recital, Black's Law Dictionary (10th ed. 2014) (explaining that a recital is "[a] preliminary statement in a contract or deed explaining the reasons for entering into it or the background of the transaction"). Similarly, as Defendants point out, the "Business of the Company" section provides "an express limitation" on the nature of Tivoli's business and the managerial powers, stating that "the Company is intended to purchase and develop, hold and [sell] real estate for investment purposes only, and no activities inconsistent with such limited purposes shall be undertaken." Finally, the "Formation of Company" subsection similarly explains that "[t]he Company was formed as a new venture for the purpose of acquiring real property for development." These provisions are broad enough to suggest that the Operating Agreement could be read to authorize investments and expenditures on real estate development projects apart from the Property.

         ¶26 On the other hand, a number of provisions in the Operating Agreement appear to limit Tivoli's activities to the Property itself. In the definitions section, "Property" is defined as the "approximately 29 acres of real property located in Utah County, . . . which real property is the subject of the Purchase Agreement, " and "Developer" is defined as "Tivoli Properties, LLC, a Utah Limited Liability Company established to manage, improve, subdivide, develop, lease, and sell the Property and to perform all other activities reasonably related thereto." The "Purposes of the Company" subsection then explains that Tivoli "is organized for the purpose of carrying on the business of acquiring, managing, improving, subdividing, developing, leasing and selling the Property or any other enterprise that members may mutually agree upon." (Emphasis added.) And although the "Business of the Company" provision considered in isolation is broadly written, it could reasonably be construed to incorporate the more specific "Purposes of the Company" provision to limit its breadth: "Equity Partners, LLC . . . shall have full, exclusive and complete authority and discretion in the management and control of the business of the Company for the purposes herein stated . . . ." (Emphasis added.) Cf. Nephi City v. Hansen, 779 P.2d 673, 675 (Utah 1989) (explaining that, "where general terms follow specific ones, the rules of construction . . . require that the general terms be given a meaning that is restricted to a sense analogous to the preceding specific terms"); New York Ave. LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d 268 (explaining that we "interpret the contract as a whole, considering each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none" (brackets, ellipsis, citations, and internal quotation marks omitted)).

         ¶27 Thus, the Operating Agreement's descriptions of Tivoli's business purpose do not appear to clearly authorize Tivoli (or Equity Partners, on its behalf) to engage in real estate related activities apart from the Property itself. In fact, as the State argued below and on appeal, there appears to be a reasonable basis in the Agreement from which to conclude that, unless the members "mutually" agreed otherwise, Tivoli's authorized business activities were limited to development of only the Property. See Holladay Bank & Trust, 2014 UT App 17, ¶ 12. Accordingly, we conclude that the Operating Agreement did not unambiguously authorize joint ventures between Tivoli and other entities for investment in and development of property other than the Property.

         ¶28 A related issue at trial was whether Defendants had managerial authority to make the expenditures they did on Tivoli's behalf. Defendants argued that the broad powers the Operating Agreement gave to Tivoli's managers encompassed the contested expenditures, while the State argued that the Agreement curtailed the managers' authority to make those expenditures without consent of all the members-including the Victims. For example, Defendants argue that the "General Powers of Managers" subsection gave the managers authority to, among other things, "[p]urchase, lease, or otherwise acquire any real or personal property" as well as "[p]articipate with others in partnerships, joint ventures, and other associations and strategic alliances." However, they fail to acknowledge the caveat that managers may participate in such partnerships, joint ventures, associations, and alliances "only where same are directly in pursuit of the Business, as defined above, " which seems arguably limited to development of the Property, as we have discussed. In addition, Defendants argue that the "Policies" subsection explains that in instances where the members do not agree "with reference to the policies to be followed by the company, the managing members shall have the right to decide what policy or policies shall be followed" and that their decision shall be considered "as final." And a section addressing "Conduct of the Company" provides that "[a]ny questions regarding the conduct of the Company business shall be determined by a vote of 100% of the Managing Members of the Company." Defendants contend that these management-related provisions allowed them broad latitude to extend Tivoli's business-and its capital expenditures-beyond the Property.

         ¶29 But the State contends that other sections of the Agreement significantly limit the managers' authority to take certain actions, and a reasonable argument can be made that several of those limitations apply to the expenditures and investments that underlay the theft counts on which the jury convicted. The "Limitations" on managers' powers subsection of the Operating Agreement provides that "no act shall be taken, sum expended, decision made, obligation incurred or power exercised by any Manager on behalf of the Company except by the consent of One Hundred percent (100%) of all Membership Interests with respect to" "[a]ny significant and material purchase, receipt, lease, exchange, or other acquisition of any real or personal property or business"; "[a]ny matter which could result in a change in the amount or character of the Company's capital"; "[t]he commission of any act which would make it impossible for the Company to carry on its ordinary business and affairs"; and "[a]ny act that would contravene any provision of the Articles or of this Operating Agreement." (Emphasis added.) These restraints can reasonably be interpreted to apply to Defendants' actions. As a result, given that the Operating Agreement's broad grant of authority to the company's managers is qualified by specific restraints, we are not persuaded that it unambiguously authorized Defendants to make the non-Property-related expenditures underlying the charges against Defendants.

         ¶30 Thus, we conclude that the Operating Agreement did not unambiguously authorize Defendants to use Tivoli's capital for the expenditures that underlay the theft charges against them. Rather, while there are provisions in the Agreement from which the jury might reasonably have concluded that the parties intended Tivoli to engage broadly in real estate acquisition and development and that Defendants were authorized to engage in joint ventures and make the sorts of expenditures represented by the checks, there are also provisions reasonably supporting a conclusion that the parties intended Tivoli's business to be limited to development of the Property and that the Agreement limited the managers' ability to make the disputed purchases and payments. See Holladay Bank & Trust v. Gunnison Valley Bank, 2014 UT App 17, ¶ 12, 319 P.3d 747 ("A contract is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." (citation and internal quotation marks omitted)); see also Daines v. Vincent, 2008 UT 51, ¶ 29, 190 P.3d 1269 (explaining that when there is ambiguity, "contrary [contract] interpretations [are] reasonably supported by the language of the contract" (citation and internal quotation marks omitted)). When a contract is "determined to be ambiguous in some respect[, ] . . . the parties' intended meaning . . . [becomes] a question of fact to be determined by extrinsic evidence of intent." Florence v. Colbert, 2011 UT App 72, ¶ 2, 251 P.3d 246 (citation and internal quotation marks omitted).

         ¶31 And, as the State points out, the court could reasonably have determined that there was sufficient evidence to send the theft counts to the jury and let the jury decide whether the Operating Agreement's constraints on Tivoli's business and the managers' authority precluded Defendants from making the expenditures at issue. The parties presented extensive evidence on the meaning of the Operating Agreement during trial. As Defendants concede, "much of the trial was consumed with witnesses reading aloud, and then offering their interpretations of, various language in the Operating Agreement" regarding whether they had authority under the Agreement to make the expenditures at issue in the case. The State elicited testimony and argued that Defendants lacked authority to make the expenditures they were charged with, while Defendants attempted to demonstrate that under the Agreement they were not limited to making expenditures related only to the Property and that they had authority as managers to involve Tivoli in their other development projects and make the expenditures. As a result, the evidence presented at trial on the issue of whether the Operating Agreement authorized Defendants' actions was conflicting at best, but certainly not insufficient to submit to the jury for decision. For example, as the State argues, the jury could have decided that the dollar amount of some of the checks qualified them as "significant purchases" and that several of the larger checks were sufficiently "significant and material" to have resulted in "a change in the amount" of Tivoli's capital-both of which required the consent of all of Tivoli's members under the Operating Agreement. Similarly, the jury could have decided, based on the Operating Agreement's language and related testimony, that Tivoli's business was limited to activities related solely to the Property absent the "mutual agreement" of the members and that certain checks involving investments or expenditures in aid of other business ventures, such as Hidden Acres LLC, were contrary to the "Purposes of the Company" provision of the Operating Agreement. Thus, given the ambiguity of the Operating Agreement and substantial conflicting evidence about its meaning, we are not persuaded that the trial court was required to interpret the Operating Agreement to have authorized Defendants' conduct as a matter of law and dismiss the theft counts on that basis. See State v. Clark, 2001 UT 9, ¶ 13, 20 P.3d 300 ("We will uphold the trial court's decision to submit a case to the jury if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, the court concludes that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." (citation and internal quotation marks omitted)).

         ¶32 In sum, because we are not persuaded that the Operating Agreement unambiguously authorized Defendants' actions, the issue of whether Defendants were authorized to use Tivoli's capital as they did was properly submitted to the jury to decide based on the Agreement's language and the other evidence presented of the parties' intent. Cf. State v. Larsen, 834 P.2d 586, 591 (Utah Ct. App. 1992) (concluding that, because there was a legal basis for the jury to find that the ...


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