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State v. Bruun

Court of Appeals of Utah

May 9, 2019

State of Utah, Appellee,
v.
Allan Bruun, Appellant.

          Third District Court, Salt Lake Department The Honorable Katie Bernards-Goodman No. 111903468

          Clifton W. Thompson, Attorney for Appellant

          Sean D. Reyes, Jeffrey S. Gray, and Jacob S. Taylor, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.

          OPINION

          ORME, JUDGE

         ¶1 This case presents the question of whether a civil settlement between a victim and a defendant, entered into prior to entry of an order of complete restitution in a related criminal case, precludes the victim from enforcing that restitution order once it is entered as a judgment on the civil docket. In light of the plain language of, and the well-recognized purposes for, the Crime Victims Restitution Act, we conclude that a prior civil settlement does not preclude enforcement of a restitution judgment provided that the victim does not obtain a double recovery.

          BACKGROUND[1]

         ¶2 Following a jury trial in 2013, Allan Bruun and James Diderickson (collectively, Defendants) were convicted of twelve counts of theft and one count of engaging in a pattern of unlawful activity, growing out of their criminal conduct perpetrated against Utah County landowners (Victims).[2] In 2007, Defendants and Victims entered into a joint business venture to develop 29 acres of land in Saratoga Springs (the Property) that Victims had purchased decades earlier to fund their retirement. Victims partnered with an entity owned by Defendants, Equity Partners LLC, to form Tivoli Properties LLC, whose purpose was to "carry[] on the business of acquiring, managing, improving, subdividing, developing, leasing and selling the Property or any other enterprise that members may mutually agree upon." Victims held a 25% interest in Tivoli, and Equity Partners owned the remainder.

         ¶3 As part of the joint venture, Victims also agreed to sell the Property to Equity Partners for $3.5 million, with $750, 000 due as a down payment. Prior to closing on the sale of the Property, Defendants informed Victims that they were unable to make the $750, 000 down payment and convinced Victims to take out a loan secured by the Property for that amount to enable commencement of the Property's development. Approximately $350, 000 of the loan proceeds was used to pay off existing mortgages and taxes on the Property, and the remaining $400, 000 was transferred to Tivoli's business checking account, whereupon that sum became the company's only operating funds.

         ¶4 Approximately six months later, Victims discovered that Defendants had written a host of checks on Tivoli's account that did not appear to be related to the development of the Property. Following Victims' complaints and ensuing negotiations, Victims and Defendants entered into a settlement agreement (the Settlement Agreement) in which Defendants agreed to transfer title to all but .6 acres of the Property back to Victims. Defendants had already sold the remaining .6 acres to the Utah Department of Transportation, but they agreed to also transfer the proceeds from that sale, $174, 000, to Victims. In exchange, Victims paid Equity Partners $25, 000 and agreed to "waive any claim or right to assert any cause of action" against Defendants related to their management of Tivoli. The checks that later gave rise to the theft charges against Defendants were identified in the Settlement Agreement, which recited that Victims released any claims they had concerning the checks.

         ¶5 Two years later, the State charged Defendants with 28 counts of theft and one count of engaging in a pattern of unlawful activity for writing unauthorized checks on Tivoli's account. A jury determined that 12 of the 28 checks were unauthorized by Tivoli's operating agreement and convicted Defendants on twelve counts of theft and one count of engaging in a pattern of unlawful activity. As part of their sentence, the district court ordered Defendants to jointly and severally pay Victims $189, 574.33 in complete and court-ordered restitution- the aggregate sum of the 12 checks underlying the theft convictions.

         ¶6 Defendants previously appealed their convictions and the district court's order of restitution, resulting in our decision in State v. Bruun (Bruun I), 2017 UT App 182, 405 P.3d 905. In challenging the restitution order, Defendants argued (1) "that the release of claims in the Settlement [Agreement], signed by both Defendants and the Victims, precluded restitution as a matter of law"; and (2) "that the consideration the Victims received as part of the Settlement [Agreement] should have been taken into account in the court's restitution order." Id. ¶ 80. We were persuaded by neither argument and affirmed the restitution order. Id. ¶ 99.

         ¶7 Relying on our Supreme Court's decision in State v. Laycock, 2009 UT 53, 214 P.3d 104, we determined Defendants' first argument to be unavailing because the State was not a party to the Settlement Agreement, and therefore "the State's interests [in seeking restitution] were not foreclosed by the release." Bruun I, 2017 UT App 182, ¶ 86. And regarding Defendants' second argument, we held it was not an abuse of discretion for the district court to determine that evidence of the Property's value was too speculative and unreliable to conclude that return of the Property necessarily compensated Victims in full for the unauthorized checks, id. ¶ 98, and that "Defendants ha[d] also failed to persuade us that the trial court's actual restitution award amounted to a double recovery," id. ¶ 94.

         ¶8 During the pendency of Bruun I, Defendants moved the district court for an order of satisfaction of judgment pursuant to rule 58B of the Utah Rules of Civil Procedure. They argued that because the Settlement Agreement referenced the 12 checks that were the subject of the restitution order and included an express release of Victims' claims concerning the same, they were entitled to an order of satisfaction of judgment once the complete restitution order was entered as a judgment on the civil docket. See Utah Code Ann. ยง 77-38a-401(1) (LexisNexis Supp. 2018). After recognizing that Defendants' motion involved ...


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