State v. Bruun

2019 UT App 77
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A LLAN BRUUN ,
Appellant.
Opinion
No. 20160466-CA
Filed May 9, 2019
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. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
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.

State v. Bruun
20160466-CA 	2 	2019 UT App 77
BACKGROUND1
¶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
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. A more detailed account of the facts underlying Defendants’
convictions is provided in our prior decision in this case. See
State v. Bruun, 2017 UT App 182, ¶¶ 2–13, 405 P.3d 905.

State v. Bruun
20160466-CA 	3 	2019 UT App 77
$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

State v. Bruun
20160466-CA 	4 	2019 UT App 77
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. § 77-38a-401(1) (LexisNexis Supp. 2018).
After recognizing that Defendants’ motion involved “issues of
law which are of first impression,” the district court denied the
motion. 	The 	court’s 	denial 	of 	this 	motion 	is 	the 	target 	of
Defendants’ current appeal.

State v. Bruun
20160466-CA 	5 	2019 UT App 77
ISSUE AND STANDARD OF REVIEW
¶9 	Whether a prior settlement agreement can satisfy an order
of complete restitution after the restitution order is entered as a
judgment on the civil docket presents a question of law, which
we review for correctness. See Pilot v. Hill, 2019 UT 10, ¶ 9, 437
P.3d 	362 	(“[P]ure 	question[s] 	of 	law” 	are 	reviewed 	“for
correctness.”).
ANALYSIS
¶10 	The Crime Victims Restitution Act (the Act) requires a
district 	court 	to 	“determine 	complete 	restitution 	and
court-ordered 	restitution,”3 Utah 	Code 	Ann. 	§ 	77-38a-302(2)
(LexisNexis 	2017), 	and 	to 	subsequently 	“enter 	an 	order 	of
complete restitution . . . on the civil judgment docket,” id.
§ 77-38a-401(1) (Supp. 2018). Such an order “shall be considered
3. “Complete restitution is restitution necessary to compensate a
victim for all losses caused by the defendant, taking into account
all relevant facts,” including those facts enumerated in Utah
Code section 77-38a-302(5)(b). State v. Mooers, 2017 UT 36, ¶ 9,
424 P.3d 1 (emphasis added) (quotation simplified). In contrast,
court-ordered restitution “is the restitution the court having
criminal jurisdiction orders the defendant to pay as a part of the
criminal sentence.” Id. ¶ 10 (quotation simplified). In addition to
considering the factors for complete restitution, district courts
take the defendant’s particular circumstances into consideration
when 	determining 	the 	amount 	of 	court-ordered 	restitution.
Id. ¶ 11. See also Utah Code Ann. § 77-38a-302(5)(c) (LexisNexis
2017) (listing the additional factors a district court must consider
when determining court-ordered restitution). As a subset of
complete restitution, court-ordered restitution must be either
equal to or less than the complete restitution amount. See Mooers,
2017 UT 36, ¶¶ 11, 19 n.4.

State v. Bruun
20160466-CA 	6 	2019 UT App 77
a legal judgment, enforceable under the Utah Rules of Civil
Procedure,” thereby affording the victim or the Department of
Corrections 	the 	rights 	to 	“enforce 	the 	restitution 	order 	as
judgment creditor under [those same rules].” Id. § 77-38a-401(2)
(emphasis added).4
¶11 	Citing this provision 	of the Act and relying on rule
58B(b) 	of 	the 	Utah 	Rules 	of 	Civil 	Procedure, 	Defendants
argue that once the complete restitution order was reduced to
a civil judgment, they were entitled to an order of satisfaction
of that judgment. See Utah R. Civ. P. 58B(b) (providing that
a 	district 	court 	“may, 	upon 	motion 	and 	satisfactory 	proof,
enter an order declaring [a] judgment satisfied”). Specifically,
Defendants contend that their compliance with the terms of
the 	Settlement 	Agreement—the 	one 	they 	and 	Victims
executed two years prior to the commencement of criminal
proceedings and which referenced the 12 checks Defendants
wrote on the Tivoli account—served as “satisfactory proof”
that 	the 	judgment 	had 	been 	satisfied. 	Defendants 	assert
that through their efforts to re-zone the Property, its value
increased between the time Victims sold it to Equity Partners
and the time it was conveyed back to Victims pursuant to the
Settlement 	Agreement, 	and 	that 	this 	increase 	in 	value 	was
sufficient 	to 	satisfy 	the 	complete 	restitution 	amount 	of
$189,574.33.5
4. 	In 	contrast, 	unlike 	complete 	restitution 	orders 	that 	are
enforceable as civil judgments, “a violation of court-ordered
restitution 	subjects 	the 	defendant 	to 	criminal 	enforcement
mechanisms such as contempt of court.” Mooers, 2017 UT 36,
¶ 18 n.3.
5. But as we will discuss infra, the district court expressly
rejected 	this 	contention 	when 	determining 	the 	complete
restitution amount, deeming the evidence presented regarding
(continued…)

State v. Bruun
20160466-CA 	7 	2019 UT App 77
¶12 	Defendants correctly state that upon agreement between
the parties, a judgment debtor’s obligation to the judgment
creditor may be satisfied under rule 58B(b) of the Utah Rules of
Civil Procedure by means other than direct monetary payment.
See Red Bridge Capital LLC v. Dos Lagos LLC, 2016 UT App 162,
¶ 10 n.2, 381 P.3d 1147 (stating that rule 58B(b) “require[s] only
‘satisfactory proof’ that a judgment has been satisfied,” and
“[w]here [a] judgment debtor can demonstrate that . . . the
parties had agreed to satisfaction by means other than simple
payment, evidence that the judgment debtor met its obligations
under the parties’ agreement may provide satisfactory proof that
the judgment has been satisfied”). But that rule contemplates
agreement between the parties after judgment is entered. We are
still left with the task of determining whether the Act permits a
settlement entered into prior to entry of a restitution judgment on
the civil docket to satisfy that judgment. See infra ¶ 16.
¶13 	In 	support 	of 	their 	position, 	Defendants 	cite 	State 	v.
Laycock, 2009 UT 53, 214 P.3d 104. In Laycock, our Supreme Court
addressed the issue of whether a civil settlement between a
defendant and a victim barred the imposition of restitution in a
subsequent criminal action arising from the same incident. See id.
¶ 12. The Court determined that such civil settlements did not
bar the imposition of restitution by the district court because the
controversy 	between 	the 	State 	and 	the 	defendant 	was 	not
finished and the twin purposes of restitution, i.e., to compensate
the victim and to act as a deterrent, had not been satisfied. See id.
¶ 18. But, without expressly deciding, the Court concluded by
musing as to the effect the settlement agreement would have on
the order of complete restitution once it 	was entered as a
judgment on the civil docket, stating:
(…continued)
the pre- and post-settlement values of the Property to be too
speculative.

State v. Bruun
20160466-CA 	8 	2019 UT App 77
In the context of this case, once [the district court]
completes the task assigned to [it] on remand—to
determine complete restitution—that sum will be
reduced to a civil judgment, a judgment that may
only be enforced through the Utah Rules of Civil
Procedure. At that point, a serious question will
arise over whether [the victim] may execute on her
judgment when she has released [the defendant]
from all of her claims against him. While this
question is one we need not answer today, we
likely will be required to answer it someday. It
would appear that under our statutory scheme, the
rationale we used to reject [the defendant’s] mootness
claim may lose much of its persuasive force after a civil
judgment is entered.
Id. ¶ 33 (emphasis added). Defendants rely on the emphasized
language to support the contention that the discharge of their
responsibilities 	under 	the 	Settlement 	Agreement 	likewise
satisfied 	the 	civil 	judgment 	entered 	against 	them 	at 	the
conclusion of their criminal case.
¶14 	But, as Defendants acknowledge, the comments shared by
our Supreme Court amount to nonbinding dicta. Specifically,
because the Court merely speculated on the legal issue and
expressly reserved it for future resolution, the comments to
which Defendants direct our attention represent no more than “a
remark or expression of opinion that [the C]ourt uttered as an
aside,” 	rendering 	it 	nonbinding 	obiter 	dicta.6 See 	Ortega 	v.
6. “Dicta normally comes in two varieties: obiter dicta and
judicial dicta.” Ortega v. Ridgewood Estates LLC, 2016 UT App 131,
¶ 14 n.4, 379 P.3d 18 (quotation simplified). Although “[b]oth
terms refer to judicial statements that are unnecessary to the
resolution 	of 	the 	case,” 	obiter 	dicta 	is nonbinding 	whereas
(continued…)

State v. Bruun
20160466-CA 	9 	2019 UT App 77
Ridgewood Estates LLC, 2016 UT App 131, ¶ 14 n.4, 379 P.3d 18
(quotation simplified). Cf. State v. Ogden, 2018 UT 8, ¶ 42, 416
P.3d 1132 (stating that another of its observations in Laycock—
“that matters of negligence, proximate cause and the amount of
resulting damages are best left to civil litigation”—was not an
issue the Court was asked to address in Laycock, rendering the
statement dicta, and explaining that, as a result, “that statement
should not be read to suggest that [the Court] had concluded the
[Act] requires something other than proximate causation” when
determining 	the 	complete 	restitution 	amount) 	(quotation
simplified). And having considered the merits of the parties’
arguments, we now conclude that prior settlement agreements
that do not result in a double recovery by the victim cannot
preclude enforcement of restitution judgments.
¶15 	We begin by turning to the plain language of the Act. See
Ogden, 2018 UT 8, ¶ 31. Section 401 provides that after the
district court enters an order of complete restitution on the civil
docket, 	“[t]he 	order 	shall 	be 	considered 	a 	legal 	judgment,
enforceable under the Utah Rules of Civil Procedure.” Utah Code
Ann. § 77-38a-401(2) (LexisNexis Supp. 2018) (emphasis added).
The Legislature’s choice of the word “enforceable”—as opposed
to a more neutral word, such as “governed”—provides guidance
(…continued)
“lower courts are obliged to follow any judicial dicta that may be
announced 	by 	the 	higher 	court.” 	Id. 	(quotation 	simplified).
“Obiter dicta refers to a remark or expression of opinion that a
court uttered as an aside,” and includes “statement[s] made by a
court for use in argument, illustration, analogy or suggestion.”
Id. (quotation simplified). Judicial dicta, on the other hand,
encompasses “statement[s] deliberately made for the guidance of
the bench and bar upon a point of statutory construction not
theretofore 	considered” 	by 	the 	higher 	court. 	Id. 	(quotation
simplified).

State v. Bruun
20160466-CA 	10 	2019 UT App 77
to our resolution of this issue. “Enforceable” is an adjective that
stems from the verb “to enforce,” which means “to compel
obedience to [something]” or “[l]oosely, to compel a person to
pay damages.” Enforce, Black’s Law Dictionary 608 (9th ed.
2009). See also Enforce, New Oxford American Dictionary 574 (3d
ed. 	2010) 	(defining 	“enforce” 	as 	the 	act 	of 	“compel[ling]
observance of or compliance with [something]” or “caus[ing]
(something) 	to 	happen 	by 	necessity 	or 	force”); 	Enforcement,
Black’s 	Law 	Dictionary 	608 	(9th 	ed. 	2009) 	(defining
“enforcement” 	as 	“[t]he 	act 	or 	process 	of 	compelling
compliance”). The Legislature’s choice of the word “enforceable”
therefore emphasizes the victim’s right to seek to collect on
the civil judgment under the Utah Rules of Civil Procedure
rather than recognizing the defendant’s right to seek relief from
the judgment under the rules or to have them more generally
apply.7
¶16 	And insofar as the Act directs us to the Utah Rules of
Civil Procedure, those rules do not contemplate the situation
presented by this case. Although parties in a civil proceeding
may certainly enter into settlement agreements after a plaintiff
has obtained a judgment against a defendant,8 see Utah R. Civ. P.
7. As a natural corollary, the Legislature’s choice of the word
“enforceable” suggests that rather than the entirety of the Utah
Rules of Civil Procedure, the Legislature intended only the rules
that specifically govern the enforcement of judgments to apply
to complete restitution judgments. See, e.g., Utah R. Civ. P. 64C,
64D, 64E, 66, 69A, & 69C.
8. A plaintiff might opt to settle with a defendant after a district
court’s entry of judgment for less than the judgment amount in
order to obtain a prompt payment rather than having to proceed
with enforcement efforts. The plaintiff might also wish to avoid
any potential costs that the plaintiff might incur as a result of
(continued…)

State v. Bruun
20160466-CA 	11 	2019 UT App 77
58B(b), a settlement between the parties prior to formal, judicial
resolution of a civil case would result in dismissal of the case
should an action thereafter be brought and should the defendant
choose to raise settlement as an affirmative defense, see id. R. 8(c)
(including “accord and satisfaction” and “release” as among the
available affirmative defenses), thereby necessarily foreclosing
an entry of judgment. The present case involves both an executed
settlement agreement that expressly referenced the 12 checks
that 	formed 	the 	basis 	of 	the 	restitution 	award 	and 	the
subsequent 	entry 	of 	judgment 	for 	the 	complete 	restitution
amount. Other than in the restitution context, which represents
“a unique animal, existing at the convergence of the civil and
criminal worlds,” State v. Mooers, 2017 UT 36, ¶ 7, 424 P.3d 1, we
are hard-pressed to envision in the civil context a situation that
encompasses a prior settlement agreement that has been fully
satisfied and a subsequent civil judgment, both of which purport
to fully resolve the same claims between the same parties. As
such, the Utah Rules of Civil Procedure provide little assistance
to our resolution of this case.
¶17 	Admittedly, although the Act’s plain language provides
some guidance, such guidance is limited and the Act is largely
silent on the particular issue presented in this case. “When a
statute 	is 	silent 	regarding 	particular 	circumstances 	and 	we
determine that such a gap was not the intent of the legislature,
we must determine the best rule of law to ensure that the statute
is applied uniformly.” Cox v. Laycock, 2015 UT 20, ¶ 42, 345 P.3d
689 (quotation simplified). In doing so, we must “analyze the act
in its entirety and harmonize its provisions in accordance with
the legislative intent and purpose.” Id. (quotation simplified). See
also Ogden, 2018 UT 8, ¶ 31 (“When interpreting a statute, it is
(…continued)
collecting on the judgment or even to avoid altogether the
uncertainties that surround the collection process.

State v. Bruun
20160466-CA 	12 	2019 UT App 77
axiomatic that this court’s primary goal is to give effect to the
legislature’s intent in light of the purpose that the statute was
meant to achieve.”) (quotation simplified).
¶18 	The 	Act 	was 	enacted 	to 	serve 	two 	well-recognized
purposes. The first is “to compensate the victim for pecuniary
damages.”9 State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. See
State v. England, 2017 UT App 170, ¶ 13, 405 P.3d 848 (“The
well-settled remedial purpose of our restitution statute is to
compensate victims for the harm caused by a defendant and to
spare victims the time, expense, and emotional difficulties of
9. The current version of the Act defines “pecuniary damages” as
all demonstrable economic injury, whether or not
yet incurred, including those which a person could
recover in a civil action arising out of the facts or
events 	constituting 	the 	defendant’s 	criminal
activities and includes the fair market value of
property taken, destroyed, broken, or otherwise
harmed, 	and 	losses, 	including 	lost 	earnings,
including 	those 	and 	other 	travel 	expenses
reasonably incurred as a result of participation in
criminal 	proceedings, 	and 	medical 	and 	other
expenses, 	but 	excludes 	punitive 	or 	exemplary
damages and pain and suffering.
Utah Code Ann. § 77-38a-102(6) (LexisNexis 2017).
As 	we 	recognized 	in 	Bruun 	I, 	this 	definition 	differs
slightly from the one in effect at the time the district court
determined the restitution amounts in the current case. See State
v. Bruun, 2017 UT App 182, ¶ 81, 405 P.3d 905. But because
Defendants’ argument that the district court’s restitution award
amounted to a double recovery for Victims is barred by the
doctrine of res judicata, as hereinafter explained, any change to
the definition of “pecuniary damages” is of no import in this
case.

State v. Bruun
20160466-CA 	13 	2019 UT App 77
separate 	civil 	litigation 	to 	recover 	their 	damages 	from 	the
defendant.”) (quotation simplified). However, in promoting that
purpose, courts should limit restitution “to that amount which is
necessary to compensate a victim for losses caused by the
defendant” and be careful not “to grant a windfall to the victim.”
England, 2017 UT App 170, ¶ 15 (quotation simplified). And the
second 	purpose, 	“as 	a 	part 	of 	a 	criminal 	sanction, 	is 	to
rehabilitate and deter the defendant, and others, from future
illegal behavior.” Laycock, 2009 UT 53, ¶ 18. We conclude that
neither 	purpose 	is 	served 	by 	permitting 	a 	prior 	settlement
agreement that does not fully compensate a victim for the
pecuniary 	damages 	caused 	by 	a 	defendant 	to 	satisfy 	a
subsequent judgment for complete restitution.
¶19 	In Laycock, our Supreme Court relied heavily on the dual
purposes of the Act in holding that a prior settlement agreement
between defendant and victim could not foreclose the imposition
of complete restitution by the district court. See id. (rejecting the
defendant’s argument of mootness “because the controversy
between the parties [was] not over and the dual purposes of
restitution ha[d] not been fulfilled”) (quotation simplified). And
we struggle to see how the dual purposes of restitution would be
fulfilled by the entry of an order of complete restitution as a
judgment on the civil docket if it were to immediately be
deemed satisfied by an earlier settlement that compensated the
victim for a sum less than the victim’s total loss. Quite the
contrary, any compensatory, rehabilitative, or deterrent aims of
the Act would be only symbolically met, if not undermined, by
such a scheme.
¶20 	It must be noted that settlement agreements, typically the
result 	of 	negotiation 	and 	compromise, 	often 	will 	not 	fully
compensate 	victims for 	the 	pecuniary 	damages suffered 	by
them, which complete restitution, by its very terms, is intended
to do. See Utah Code Ann. § 77-38a-302(2)(a) (LexisNexis 2017)
(“‘Complete 	restitution’ 	means 	restitution 	necessary 	to
compensate a victim for all losses caused by the defendant.”)

State v. Bruun
20160466-CA 	14 	2019 UT App 77
(emphasis added). As the State points out, “[p]arties settle for
many reasons,” including to avoid the cost and unpredictability
of litigation, “to achieve the peace of mind that comes with
finality sooner, rather than later,” and to avoid the additional
emotional toll a victim would potentially suffer by reason of
ongoing civil litigation. As a result, victims might choose to cut
their 	losses 	and 	agree 	to 	settlements 	that 	do 	not 	fully
compensate them for their damages, thereby defeating the first
purpose of the Act.
¶21 	The second purpose of the Act—that of rehabilitation and
deterrence—is 	likewise 	not 	fulfilled 	by 	Defendants’
interpretation 	of 	the 	Act. 	“[O]rders 	of 	complete 	restitution,
though technically entered on the civil docket, flow entirely from
the criminal cases that give rise to them; they are not separate
civil cases with a life outside of the criminal case.” State v.
Mooers, 2017 UT 36, ¶ 17, 424 P.3d 1. And by permitting a prior
settlement agreement for less than the victims’ total pecuniary
loss to satisfy a complete restitution judgment, defendants could
effectively avoid the full consequences of their crimes by cajoling
vulnerable victims into entering into unfavorable settlement
agreements prior to the district court’s restitution determination.
And given the purposes of the Act, it is highly unlikely that the
Legislature intended such an outcome.
¶22 	Based on the language of the Act providing that victims
can enforce their restitution judgments pursuant to the Utah
Rules of Civil Procedure, the lack of guidance from the rules
themselves, 	and 	the 	well-recognized 	purposes 	the 	Act 	was
enacted to promote, we hold that the Settlement Agreement will
offset the district court’s complete restitution award only to the
extent that the settlement demonstrably compensated Victims
for the pecuniary losses occasioned by the thefts of which
Defendants were convicted. It is insufficient that the Settlement
Agreement expressly referenced the 12 checks that provided the
basis for Defendants’ criminal convictions and restitution order.
Even though the Settlement Agreement contained a purported

State v. Bruun
20160466-CA 	15 	2019 UT App 77
release of any claims Victims had resulting from the checks,10 the
Settlement Agreement must have actually compensated them for
the 	pecuniary 	losses 	they 	suffered 	as 	a 	result 	of 	those
unauthorized checks. As such, we next determine whether and
to what extent the Settlement Agreement did so.
¶23 	In 	their 	earlier 	appeal, 	Defendants 	argued 	that 	the
Settlement Agreement and the restitution order amounted to
double recovery for Victims. See Bruun I, 2017 UT App 182, ¶ 87,
405 P.3d 905. We held that the district court did not abuse its
discretion in determining that evidence of the Property’s value
was 	too 	speculative 	and 	unreliable 	to 	form 	the 	basis 	for
restitution. See id. ¶¶ 91–95, 98. See also State v. Ogden, 2018 UT 8,
¶ 52, 416 P.3d 1132 (“A trial court’s restitution award must rely
on a sufficient evidentiary basis. . . . [A]n award of damages
based 	only 	on 	speculation 	cannot 	be 	upheld.”) 	(quotation
simplified). As such, “Defendants ha[d] . . . failed to persuade us
that the trial court’s actual restitution award amounted to a
double recovery.” Bruun I, 2017 UT App 182, ¶ 94. In light of our
prior 	determination 	that 	the 	Settlement 	Agreement 	and
restitution 	judgment 	did 	not 	doubly 	compensate 	Victims,
Defendants are 	not 	entitled 	to 	offset 	the 	judgment 	by 	any
10. And to the extent the Settlement Agreement was used in an
effort 	to 	curb 	Victims’ 	participation 	in 	subsequent 	criminal
proceedings, it would be void as against public policy. See 15
Grace McLane Giesel, Corbin on Contracts § 83.1, at 251 (Joseph
M. Perillo ed., rev. ed. 2003) (“[A]ny bargain for the purpose of
stifling a criminal prosecution, whether or not the bargain is
criminal, 	is 	always 	contrary 	to 	public 	policy 	and
unenforceable.”). While the release may well have precluded
Victims from bringing a civil action to recover the amount of the
unauthorized checks, the release was not effective to preclude
Victims 	from 	complaining 	to 	the 	criminal 	authorities 	or
benefitting from their rights under the Act.

State v. Bruun
20160466-CA 	16 	2019 UT App 77
amount and are jointly and severally obligated to pay Victims
the full restitution judgment in the amount of $189,574.33.
CONCLUSION
¶24 	Having considered the language and purposes of the
Crime Victims Restitution Act, we conclude that prior settlement
agreements do not satisfy complete restitution judgments, except
to 	the 	extent 	that 	the 	settlements 	and 	judgments 	would
demonstrably result in double recovery. Because the Settlement
Agreement Victims entered into with Defendants has not been
shown to be duplicative of the restitution judgment, Defendants
are 	not 	entitled 	to 	satisfaction 	of 	the 	judgment, 	partial 	or
otherwise.
¶25 	Affirmed.