District Court, Salt Lake Department The Honorable Katie
Bernards-Goodman No. 111903468
Clifton W. Thompson, Attorney for Appellant
D. Reyes, Jeffrey S. Gray, and Jacob S. Taylor, Attorneys for
Gregory K. Orme authored this Opinion, in which Judges Kate
Appleby and Jill M. Pohlman concurred.
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.
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). 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.
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.
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.
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.
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.
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.
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. § 77-38a-401(1) (LexisNexis Supp. 2018).
After recognizing that Defendants' motion involved