Wilson v. Sanders

2019 UT App 126
THE UTAH COURT OF APPEALS
GARY WILSON ,
Appellee,
v.
ELISABETH W. S ANDERS AND HIRAM S ANDERS,
Appellants.
Amended Opinion1
No. 20180048-CA
Filed July 18, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
The Honorable Patrick Corum
No. 160901482
Richard Lee Sanders, Attorney for Appellants
Clinton Justin Cutler, Attorney for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
F ORSTER concurred.
HARRIS, Judge:
¶1 	After 	Elizabeth 	Wilson 	(Mother) 	died, 	her 	two 	adult
children ended up in litigation over her estate. Gary Wilson
(Plaintiff) sued his sister Elisabeth W. Sanders (Sister) and her
1. This Amended Opinion replaces the Opinion in Case No.
20180048-CA that was issued on June 27, 2019. After our original
opinion issued, we noted a matter in Paragraph 25 that required
clarification, 	and 	we 	amended 	that 	paragraph 	and 	added
footnote 4. This Amended Opinion does not alter any of the
conclusions reached in our original opinion.

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husband Hiram Sanders (collectively, Defendants), seeking an
order 	invalidating 	Mother’s 	most 	recent 	testamentary
instrument on the grounds that Defendants had subjected her to
undue influence, and alleging that Defendants had intentionally
inflicted emotional distress upon him. The case was eventually
tried to a jury, which was persuaded by Plaintiff’s arguments
and not only found that Defendants had unduly influenced
Mother, but also awarded Plaintiff $170,000 on his emotional
distress 	claim, 	most 	of 	which 	was 	for 	punitive 	damages.
Defendants now appeal, and raise various arguments assailing
the jury’s verdict. We affirm.
BACKGROUND2
¶2 	In December 2000, Plaintiff permanently relocated from
Colorado to Utah to help care for his aging parents, and moved
into their house. Plaintiff paid monthly rent and lived in the
basement, 	while 	his 	parents 	lived 	upstairs. 	Plaintiff 	was
employed as a school bus driver, which allowed him to spend
time at home caring for his parents and maintaining the house.
Plaintiff testified that, during this time, Defendants—who lived
in Utah—came to the house to visit only once or twice a year,
usually on major holidays. In 2006, Mother created a revocable
trust 	(First 	Trust) 	that 	listed 	both 	Plaintiff 	and 	Sister 	as
beneficiaries, each slated to receive an equal distribution of trust
assets. In 2008, Plaintiff and Sister’s father passed away.
¶3 	In February 2015, at the age of eighty-five, Mother fell in a
parking 	lot 	and 	hit 	her 	head, 	requiring 	emergency 	cranial
surgery. Following the surgery, Mother had difficulty speaking
2. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc.,
2003 UT 41, ¶ 3, 82 P.3d 1064 (quotation simplified).

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and forming sentences, and even had a hard time recognizing
her 	children. 	According 	to 	Plaintiff, 	she 	seemed 	“eager 	to
please” and “very susceptible to suggestion and manipulation.”
¶4 	In April 2015, at Defendants’ suggestion, Mother revoked
the 	First 	Trust 	and 	created 	a 	second 	trust 	(Second 	Trust),
changing the identity of the trustee to an attorney selected
by Sister, but not changing the identity of the beneficiaries.
One month later, Mother amended the Second Trust to alter
the percentage of assets her children would receive, changing
the 	arrangement 	from 	fifty-fifty 	to 	sixty-forty 	in 	favor
of Plaintiff.
¶5 	In July 2015, without informing Plaintiff, Defendants took
Mother out of her home and placed her in a hotel room, where
she resided for six weeks. During this time, Defendants did not
allow Mother to make or receive phone calls and Plaintiff was
unable to contact her. While still living in the hotel and out of
contact with Plaintiff, Mother met with the attorney/trustee and
again revised her trust (Third Trust), this time removing Plaintiff
as a beneficiary entirely and leaving everything to Sister and
Sister’s children. At the time, Plaintiff was unaware that Mother
had disinherited him.
¶6 	Defendants finally allowed Mother to return to her home
on the condition that Plaintiff vacate the basement apartment.
Plaintiff complied, and Defendants moved into the basement
apartment, 	a 	series 	of 	events 	that 	caused 	the 	relationship
between Plaintiff and Defendants to become even more tense.
After they moved into Mother’s house, Defendants continued to
deny Plaintiff visits with Mother, and on multiple occasions they
called the police when Plaintiff tried to visit Mother in her home.
However, on each such occasion Plaintiff was allowed to see
Mother after the officers spoke to her and confirmed that, as far
as she was concerned, Plaintiff was welcome in her home.

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¶7 	Also during this time, Plaintiff claimed that his emotional
and mental health went into decline. According to Plaintiff, not
being able to contact Mother caused him “significant emotional
distress” and “affected his work performance in such a way that
his job was in jeopardy.” Indeed, Plaintiff’s supervisor testified
that, on one occasion, Plaintiff appeared so distraught at work
that she feared he could not perform his job safely, so she sent
him home for the day. In addition, his coworker and neighbor
testified that his lighthearted personality disappeared and that
he began to vocalize suicidal thoughts. Plaintiff testified that he
ended up in the hospital on two occasions, and underwent
“numerous therapy sessions” in an effort to restore his mental
health. On one occasion, Plaintiff drew a bullet on a calendar,
indicating the date on which he planned to commit suicide.
Plaintiff’s neighbor was so concerned about Plaintiff that he
called both the police and Defendants to inform them about
Plaintiff’s 	suicidal 	comments. 	When 	the 	neighbor 	told
Defendants about the calendar, Sister remarked, “Wouldn’t that
make things easier?”
¶8 	In 	January 	2016, 	Mother 	slipped 	into 	a 	coma, 	but
Defendants did not promptly notify Plaintiff about Mother’s
declining condition; Plaintiff did not learn about her condition
until three days later. Shortly thereafter, Mother passed away.
Plaintiff first heard the news from Sister when he called to check
on Mother. Although Plaintiff was at work only a few minutes
away at the time of Mother’s passing, Defendants did not inform
him when Mother had “only hours to live.” Plaintiff testified
that 	not 	being 	with 	Mother 	at 	the 	time 	of 	her 	death 	was
traumatic—something “[t]hat’s going to mess with [him] the rest
of [his] life.”
¶9 	After Mother’s passing, Plaintiff discovered that he had
been completely disinherited under the Third Trust. Plaintiff
then filed suit seeking to invalidate the Third Trust on the basis
of undue influence. He also brought a claim against Defendants

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for intentional infliction of emotional distress (IIED). Following a
three-day trial, Defendants’ counsel moved for a directed verdict
as to Plaintiff’s undue influence claim. The trial court denied the
motion and the case was sent to the jury, which found in favor of
Plaintiff and invalidated the Third Trust on the basis of undue
influence. The jury also found in favor of Plaintiff on his IIED
claim, awarding him both non-economic and punitive damages.
The jury found Defendants each separately liable to Plaintiff for
$10,000 	in 	compensatory 	non-economic 	damages, 	and 	in
addition awarded Plaintiff $150,000—for which Defendants were
jointly and severally liable—in punitive damages.
¶10 	Following the trial, Defendants timely filed a motion,
grounded in rule 60 of the Utah Rules of Civil Procedure, to
vacate the judgment. On March 29, 2018, the court entered final
judgment on the verdict, and a few days later, on April 8, 2018,
the trial court issued a written minute entry denying the rule 60
motion. Then, on April 24, 2018, Defendants filed a notice of
appeal (Notice), which states as follows:
The 	Appeal 	is 	taken 	from 	the 	Final 	Judgment
entered March 29th, 2018, and against orders or
rulings 	upon 	motions 	such 	that 	if 	the 	Final
Judgment be reversed . . . that necessarily shall be
of 	same 	effect 	on 	any 	such 	irrevocably 	linked
byproduct of the Judgment.
Defendants now appeal from the trial court’s entry of judgment
on the jury verdict and from its post-judgment denial of their
rule 60 motion.
ISSUES AND STANDARDS OF REVIEW
¶11 	Defendants raise five issues for our review. The first two
issues consist of challenges to the sufficiency of the evidence.

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First, Defendants contend that “the jury’s award of damages for
[IIED should] be vacated” because it was not supported by
sufficient evidence. Second, Defendants contend that “the jury’s
award of punitive damages [should] be vacated because it was
not based on sufficient evidence,” and it “exceeds established
limits for punitive damages awards.” When considering an
insufficiency of the evidence claim on appeal, “we do not weigh
the evidence de novo.” Water & Energy Sys. Tech., Inc. v. Keil,
2002 UT 32, ¶ 15, 48 P.3d 888 (quotation simplified). Rather, we
view “the evidence in the light most favorable to the prevailing
party,” Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991),
and 	we 	reverse 	a 	jury’s 	verdict 	only 	when 	“the 	evidence
presented at trial is so lacking that reasonable minds could not
have reached the conclusion that the jury reached,” Harding v.
Bell, 2002 UT 108, ¶ 14, 57 P.3d 1093.
¶12 	Third, Defendants contend that the trial court erred in
denying their motion for a directed verdict on Plaintiff’s undue
influence claim. We review a trial court’s decision on a motion
for a directed verdict for correctness, and a trial court may enter
a directed verdict “only if, after looking at the evidence and all
reasonable inferences in a light most favorable to the nonmoving
party,” it “concludes that there is no competent evidence which
would support a verdict in the nonmoving party’s favor.” USA
Power, 	LLC 	v. 	PacifiCorp, 	2016 	UT 	20, 	¶ 	34, 	372 	P.3d 	629
(quotation simplified).
¶13 	Fourth, Defendants contend that the trial court erred in
denying their rule 60 motion to vacate the judgment. Ordinarily,
we review the denial of a motion to vacate a judgment for abuse
of discretion. Bodell Constr. Co. v. Robbins, 2014 UT App 203, ¶ 5,
334 P.3d 1004. However, in this case, we lack jurisdiction to
consider the merits of this issue, because Defendants did not
specifically include it in their Notice. Jensen v. Intermountain
Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474; see also Perea v. State,
2017 UT App 67, ¶ 6, 397 P.3d 770 (stating that “a ruling on a

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rule 60(b) motion culminates in a separate, appealable order”
that usually “may not be included in an existing appeal because
the issues raised in the appeal predated the ruling on the rule
60(b) motion” (quotation simplified)).
¶14 	Fifth, Defendants contend that the trial court erred “in
permitting inadmissible and prejudicial testimony throughout
the trial.” “We grant a trial court broad discretion to admit or
exclude evidence and will disturb its ruling only for abuse of
discretion.” Robinson v. Taylor, 2015 UT 69, ¶ 8, 356 P.3d 1230
(quotation simplified).
¶15 	Additionally, pursuant to rule 33 of the Utah Rules of
Appellate Procedure, Plaintiff seeks an award of attorney fees
and costs incurred in defending this appeal on the grounds that
Defendants’ appeal is frivolous or brought for delay.
ANALYSIS
I. Sufficiency of the Evidence
A. 	Jury’s Award of Damages for IIED
¶16 	Defendants first challenge the jury’s award of damages
for IIED, contending that the award should be set aside because
it was not supported by sufficient evidence. We disagree.
¶17 	When 	challenging 	the 	sufficiency 	of 	the 	evidence
underlying a jury’s verdict, the party making the claim must
demonstrate “that the [verdict] lack[s] substantial evidentiary
support.” Water & Energy System Tech., Inc. v. Keil, 2002 UT 32,
¶ 15, 48 P.3d 888. Accordingly, the appealing party should
“marshal 	the 	evidence 	in 	support 	of 	the 	verdict 	and 	then
demonstrate that the evidence is insufficient when viewed in the
light most favorable to the verdict.” Chapman v. Uintah County,

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2003 UT App 383, ¶ 31, 81 P.3d 761 (quotation simplified).
Although 	recent 	case 	law 	dictates 	that 	a 	challenge 	to 	the
sufficiency of the evidence will no longer fail solely because of a
“technical 	deficiency 	in 	marshaling,” 	a 	party 	“will 	almost
certainly fail to carry its burden of persuasion on appeal if it fails
to marshal.” State v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645.
Here, 	Defendants 	have 	“made 	no 	attempt 	to 	marshal 	the
evidence 	in 	support 	of 	the 	jury[’s] 	finding 	of 	[IIED],” 	see
Crookston v. Fire Ins. Exch., 817 P.2d 789, 800 (Utah 1991), nor
have they otherwise persuasively demonstrated why the verdict
should be set aside, see Nielsen, 2014 UT 10, ¶¶ 41–42.
¶18 	After a three-day trial, the jury found that Defendants had
intentionally 	inflicted 	emotional 	distress 	on 	Plaintiff, 	and
awarded him both compensatory and punitive damages. “In
Utah, a claim for [IIED] is actionable if: (i) the defendant’s
conduct is outrageous and intolerable . . . ; (ii) the defendant
intends to cause . . . emotional distress; (iii) the plaintiff suffers
severe 	emotional 	distress; 	and 	(iv) 	the 	defendant’s 	conduct
proximately causes the plaintiff’s emotional distress.” Hatch v.
Davis, 2004 UT App 378, ¶ 40, 102 P.3d 774. Here, although the
evidence was certainly conflicting, the record contains evidence
sufficient to support each element of an IIED claim.
¶19 	First, there was evidence that Defendants’ conduct was
“outrageous and intolerable.” See id. For example, there was
evidence that it was not until after Mother had suffered a head
injury that Defendants began to take much of an interest in her,
and that, after the injury, Defendants attempted to take control
of Mother’s care by removing her from her home and cutting her
off from Plaintiff. During this period, they refused to allow
Mother to use her phone and they brought about Plaintiff’s
eviction from the home he had been sharing with Mother for the
past fifteen years. After Mother returned home, Defendants
sometimes called the police on Plaintiff when he tried to visit
Mother. But the police reports contain evidence that the calls

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were frivolous and that Plaintiff was not actually a threat to
Mother. And although Plaintiff worked in close proximity to
Mother’s house, he was not able to be with her at the time she
passed, because Defendants did not inform him that she had
“only hours to live.”
¶20 	Second, there is evidence that Defendants intended their
actions to cause Plaintiff emotional distress. See id. At trial, both
Defendants 	admitted 	to 	being 	aware 	that 	Plaintiff 	was
apparently depressed and suicidal, and the jury heard evidence
from which it could reasonably infer that Plaintiff’s depression
stemmed from the turmoil within his family. Furthermore, after
learning that Plaintiff was contemplating suicide, Defendants
remarked to a neighbor that Plaintiff’s suicide would “make
things easier.”
¶21 	Third, 	there 	was 	evidence 	presented 	to 	support 	the
conclusion that Plaintiff did indeed suffer severe emotional
distress. See id. Among other things, Plaintiff was unable to
perform his job safely and was sent home from work; he was
hospitalized and needed multiple therapy sessions; and his
coworkers 	and 	close 	friends 	observed 	that 	he 	had 	become
increasingly depressed and suicidal.
¶22 	Fourth, the record supports the conclusion that Plaintiff’s
emotional 	distress 	was 	proximately 	caused 	by 	Defendants’
actions. See id. Notably, Plaintiff’s coworkers and friends noticed
that 	his 	behavior 	changed 	and 	he 	became 	depressed 	and
potentially suicidal after Defendants began to interfere with his
relationship with Mother.
¶23 	In sum, Defendants have not demonstrated a reason for
us to overcome the “healthy dose of deference owed to . . . jury
verdicts.” See Nielsen, 2014 UT 10, ¶ 41. There existed evidence
on both sides of this question, and the jury could readily have
returned a verdict in favor of Defendants on the IIED claim. But

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the jury apparently found Plaintiff’s version of events more
credible and, on these facts, that was its decision to make. See
Carlton 	v. 	Brown, 	2014 	UT 	6, 	¶ 	51, 	323 	P.3d 	571 	(“Where
reasonable men may differ, it is for the jury . . . to determine
whether, in the particular case, the conduct has been sufficiently
extreme 	and 	outrageous 	to 	result 	in 	liability.” 	(quotation
simplified)). We are therefore unpersuaded that there existed
insufficient evidence to support the jury’s determination that
Defendants intentionally caused Plaintiff emotional distress.
B. 	Jury’s Award of Punitive Damages
¶24 	Defendants next argue that the jury’s award of punitive
damages 	should 	be 	vacated 	because 	“it 	was 	not 	based 	on
sufficient 	evidence” 	and 	it 	“exceeds 	established 	limits 	for
punitive damages awards.”3 We disagree. Here, Defendants
3. Defendants also assert that the jury’s punitive damages award
was 	inappropriate 	because 	it 	held 	Defendants 	“jointly 	and
severally liable for punitive damages.” But Defendants invited
the trial court to adopt a special verdict form that provided only
one “joint and several” line for any punitive damages award,
and 	therefore 	any 	error 	on 	this 	point—if 	error 	exists, 	a
conclusion 	we 	stop 	short 	of 	drawing—constitutes 	“invited
error,” which “preclud[es] appellate review.” See Pratt v. Nelson,
2007 UT 41, ¶ 17, 164 P.3d 366 (quotation simplified); see also
State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (“[A] party
cannot take advantage of an error committed at trial when that
party led the trial court into committing the error.” (quotation
simplified)). 	During 	trial, 	the 	court 	reviewed 	the 	proposed
special jury verdict form with both parties and, of its own
accord, noted that the form provided for just “one award of
punitive damages” with no provision for “decid[ing what] each
one owes,” and asked whether it needed to “separate this out” to
allow the jury to make clear which defendant would owe what
(continued…)

Wilson v. Sanders
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have failed to persuade us that there is insufficient evidence to
support the jury’s award of punitive damages. First, Defendants
have “made no attempt to marshal the evidence in support of
the jury[’s] finding of [punitive damages].” See Crookston v. Fire
Ins. Exch., 817 P.2d 789, 800 (Utah 1991). While, as noted, this
failure to marshal no longer merits an automatic default, see State
v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645, Defendants make
no attempt to address the evidence supporting the award, as
outlined above. In short, after reviewing the record, we are
convinced that the punitive damages verdict was supported by
sufficient evidence.
¶25 	With 	regard 	to 	excessiveness, 	the 	only 	argument
Defendants make is one grounded in constitutionality, citing our
supreme court’s pronouncement that “ratios exceeding single-
(…continued)
amount of punitive damages. However, both attorneys indicated
that 	they 	would 	prefer 	to 	keep 	just 	one 	line 	for 	punitive
damages. As we have previously recognized, an “affirmative
representation” that a party has no further objection to a jury
instruction “falls within the ambit of the invited-error doctrine.”
ConocoPhillips Co. v. Utah Dep't of Transp., 2017 UT App 68, ¶ 20,
397 P.3d 772; see also State v. Chaney, 1999 UT App 309, ¶ 55, 989
P.2d 1091 (finding invited error when a defendant objected to
the 	trial 	court’s use 	of 	a 	correct jury 	instruction 	and 	later
challenged the substituted erroneous jury instruction on appeal);
State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct. App. 1991) (finding
invited error where a defendant challenged an instruction that
he had submitted to the trial court). Because Defendants’ counsel
was given an opportunity to object to the one-line entry on the
special verdict form for punitive damages and indicated his
assent, any error in the verdict form on this point was invited.
Accordingly, we do not consider this issue further.

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digits . . . mark the outer limits of due process.” See Campbell v.
State Farm Mut. Auto Ins. Co., 2004 UT 34, ¶ 39, 98 P.3d 409.4
Indeed, in State Farm Mutual Automobile Insurance Co. v. Campbell,
538 U.S. 408 (2003), the United States Supreme Court recognized
that punitive damages awards that do not exceed a single-digit
ratio between punitive and compensatory damages will likely
comport with due process. Id. at 425. Here, the jury awarded
Plaintiff 	$20,000 	in 	compensatory 	damages 	and 	$150,000 	in
punitive damages, a ratio of 7.5 to 1. Such an award therefore
falls within the constitutionally acceptable bounds recognized by
the 	United 	States 	Supreme 	Court. 	We 	therefore 	reject
Defendants’ arguments to the contrary.
II. Denial of Directed Verdict
¶26 	Defendants next contend that the trial court erred in
denying their motion for a directed verdict on Plaintiff’s undue
influence claim. This claim fails for the same reasons articulated
above; namely, Defendants have failed to meet their burden of
persuasion. Our “standard of review of a directed verdict is the
same as that imposed upon a trial court.” Gables at Sterling Village
Homeowners Ass’n, Inc. v. Castlewood-Sterling Village I, LLC, 2018
UT 04, ¶ 21, 417 P.3d 95 (quotation simplified). “A trial court is
4. Defendants make no other argument with regard to the ratio
between the award of compensatory damages and the award of
punitive damages, and specifically raise no argument that the
ratios 	involved 	in 	this 	award 	were 	excessive 	under 	the
framework articulated by our supreme court in Crookston v. Fire
Insurance Exchange, 817 P.2d 789 (Utah 1991). Id. at 810 (stating
that “[t]he general rule” is “where the punitives are well below
$100,000, punitive damage awards beyond a 3 to 1 ratio to actual
damages have seldom been upheld,” and that for punitive
damages awards over $100,000 “the acceptable ratio appears
lower”). We therefore do not address any such argument.

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justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in
the 	non-moving 	party’s 	favor.” 	Id. 	(quotation 	simplified).
Defendants 	have 	failed 	to 	demonstrate 	that 	there 	was 	“no
competent evidence” to support the jury’s finding that Mother
disinherited 	Plaintiff 	while 	under 	the 	undue 	influence 	of
Defendants. See id. (quotation simplified). In fact, as discussed
above, there was evidence that Mother amended her trust after
sustaining a head injury, which left her disoriented, and during
the time when Defendants had sequestered Mother in a hotel
where she was cut off from all contact with the outside world.
While 	a 	jury 	could 	reasonably 	have 	reached 	the 	opposite
conclusion, and found in favor of Defendants on this point, the
jury’s 	decision 	to 	believe 	Plaintiff’s 	version 	of 	events 	over
Defendants’ 	was 	not 	unreasonable 	and 	was 	supported 	by
competent evidence. The trial court therefore did not err in
denying Defendants’ motion for a directed verdict.
III. Denial of Rule 60 Motion
¶27 	Defendants also challenge the trial court’s denial of their
rule 60 motion. But this challenge falls outside the scope of our
jurisdiction because Defendants did not identify this issue in
their Notice. Rule 3(d) of the Utah Rules of Appellate Procedure
requires that a notice of appeal “designate the judgment or
order, or part thereof, appealed from.” Utah R. App. P. 3(d).
Defendants’ Notice, which was filed on April 24, 2018, states that
the “Appeal is taken from the Final Judgment entered March
29th, 2018, and against orders or rulings upon motions” that are
bound up with the final judgment. But the Notice does not
identify the trial court’s later order denying their rule 60 motion.
¶28 	Our appellate jurisdiction is limited to considering only
the orders and judgments specified in the notice of appeal. If the
notice fails to identify the specific order sought to be appealed,

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we cannot assume jurisdiction over the appeal. See Jensen v.
Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474
(holding that “rule 3(d)’s requirement is jurisdictional” and that
“the object of a notice of appeal is to advise the opposite party
that an appeal has been taken from a specific judgment in a
particular 	case” 	(quotation 	simplified)); 	see 	also 	Pulham 	v.
Kirsling, 2019 UT 18, ¶ 27 (exercising appellate jurisdiction over
only the three issues specifically referenced in the notice of
appeal). However, our supreme court has recognized “that the
language of rule 3(d) [does] not require a party appealing from
an entire final judgment to specify each interlocutory order of
which the appellant seeks review.” Zions First Nat’l Bank, NA v.
Rocky Mountain Irrigation, Inc., 931 P.2d 142, 144 (Utah 1997)
(quotation simplified). Thus, “when an appeal is taken from a
final judgment, there is no requirement that the notice designate
intermediate orders which are to be raised as issues on appeal.”
U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d
945 (quotation simplified); see also 16A Charles Alan Wright et.
al., Federal Practice & Procedure Jurisdiction § 3949.4 (4th ed. 2019)
(“A notice of appeal that names the final judgment suffices to
support review of all earlier orders that merge in the final
judgment 	under 	the 	general 	rule 	that 	appeal 	from 	a 	final
judgment supports review of all earlier interlocutory orders, at
least if the earlier orders are part of the progression that led up
to 	the 	judgment 	rather 	than 	being 	separate 	from 	that
progression.”). Because Defendants referenced the entire final
judgment in their Notice rather than merely discrete parts of it,
see Pulham, 2019 UT 18, ¶¶ 25–27, we have jurisdiction to
consider a challenge to the final judgment itself as well as any
earlier intermediate orders bound up or subsumed in the final
judgment.
¶29 	Accordingly, the question we must address is whether the
trial court’s order denying Defendants’ rule 60 motion was
subsumed in the final judgment. Defendants’ Notice states that

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their “[a]ppeal is taken from the Final Judgment entered March
29th, 2018.” But the trial court did not deny the rule 60 motion
until April 8, 2018, more than a week after the entry of the final
judgment. Because they are issued after final judgment, post-
judgment 	orders 	are 	ordinarily 	not 	subsumed 	in 	the 	final
judgment, and generally parties must either file a separate notice
of appeal regarding those orders or, if they are entered before
the filing of the notice of appeal, at least specifically mention
them in the notice of appeal being taken from the final judgment.
See Dennett v. Ferber, 2013 UT App 209, ¶ 3, 309 P.3d 313 (per
curiam) (finding that because a “ruling on a rule 60(b) motion
culminates in a separate, appealable order . . . this court lacks
jurisdiction to resolve issues raised in a ruling on a rule 60(b)
motion unless a new notice of appeal has been filed”). Here,
entry of the trial court’s order denying Defendants’ rule 60
motion 	occurred 	post-judgment, 	and 	Defendants 	offer 	no
argument for how such an order could possibly have been
subsumed within the earlier entered final judgment, or been part
of 	the 	progression 	that 	led 	to 	it. 	Accordingly, 	because
Defendants did not specifically state, in their Notice, that they
intended to appeal from that order, we lack jurisdiction to
consider an appeal from the order denying the rule 60 motion.
IV. Impermissible and Prejudicial Trial Testimony
¶30 	Next, Defendants contend that the trial court erred in
“permitting inadmissible and prejudicial testimony throughout
the 	trial.” 	But 	Defendants 	failed 	to 	object 	at 	trial 	to 	any
testimony as being “prejudicial,” and therefore did not present
the issue to the trial court “in such a way that the court ha[d] an
opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (“When a party fails to raise and argue an issue in the
trial court, it has failed to preserve the issue, and an appellate
court will not typically reach that issue absent a valid exception
to 	preservation.”). 	Accordingly, 	this 	issue 	has 	not 	been
preserved for our review. A party that “wishes an appellate

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20180048-CA 	16 	2019 UT App 126
court to address” an unpreserved issue “must argue that an
exception to preservation applies.” Id. ¶ 27. Here, Defendants do
not argue for the applicability of any particular exception to our
preservation rules. Accordingly, we do not discuss the matter
further. See, e.g., Federated Capital Corp. v. Deutsch, 2018 UT App
118, ¶ 21, 428 P.3d 51 (declining to “reach the merits” of an issue
because it was not preserved for appellate review, and the
appellant did “not assert that an exception to the preservation
rule applies”).
V. Attorney Fees
¶31 	Finally, Plaintiff asks us, pursuant to rule 33 of the Utah
Rules of Appellate Procedure, to award him the attorney fees he
has incurred in defending against this appeal. Although we
affirm the judgment in favor of Plaintiff, we deny his request for
attorney fees.
¶32 	Pursuant to rule 33, if we determine that a motion or
appeal 	is 	“either 	frivolous 	or 	for 	delay,” 	we 	must 	award
“reasonable attorney fees to the prevailing party.” Utah R. App.
P. 33(a). Although Plaintiff is the prevailing party on appeal, we
cannot conclude that Defendants’ appeal, taken as a whole, was
“frivolous” or intended for “any improper purpose.” See id. R.
33(b) (defining a frivolous appeal as “not grounded in fact, not
warranted 	by 	existing 	law, 	or 	not 	based 	on 	a 	good 	faith
argument to extend, modify, or reverse existing law,” and an
appeal for delay as “one interposed for any improper purpose
such as to harass, cause needless increase in the cost of litigation,
or gain time that will benefit only the party filing the appeal”);
see also Tobler v. Tobler, 2014 UT App 239, ¶ 47, 337 P.3d 296
(holding that “the imposition of rule 33 sanctions is a serious
matter and only to be used in egregious cases, lest the threat of
such sanctions should chill litigants’ rights to appeal lower court
decisions” (quotation simplified)). As such, we conclude that an
award of attorney fees under this rule would be inappropriate.

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20180048-CA 	17 	2019 UT App 126
CONCLUSION
¶33 	For the reasons articulated above, we affirm the ruling of
the trial court in all respects, but decline to award Plaintiff the
attorney fees he incurred in defending the appeal.5
5. For the reasons set forth herein, we also deny Defendants’
pending Motion for Extraordinary Relief or Other Appropriate
Relief, as well as Defendants’ pending Motion for Summary
Reversal of Clear and Prejudicial Errors.