Holbrook v. Holbrook

----ooOoo----

Kurt N. Holbrook, an individual;
and Tracy H. Bigelow, an individual,
Plaintiffs and Appellees,

v.

West N. Holbrook, an individual,
trustee of the B.G. Holbrook Family Trust,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000931-CA

F I L E D
June 13, 2002 2002 UT App 206 -----

Third District, Salt Lake Department
The Honorable Tyrone E. Medley

Attorneys:
James A. McIntyre and Richard R. Golden, Salt Lake City, for Appellant
James S. Jardine and D. Zachary Wiseman, Salt Lake City, for Appellees

-----

Before Judges Bench, Greenwood, and Thorne.

GREENWOOD, Judge:

Defendant argues that the trial court committed plain error in holding a temporary restraining order (TRO) hearing without first complying with Rule 4-506(4) of the Utah Code of Judicial Administration. Because Defendant did not raise this issue in the trial court, he argues plain error on appeal.

For Defendant to succeed on his plain error claim, he must show, among other things, that the trial court's error was harmful. See State v. Adams, 2000 UT 42,¶20, 5 P.3d 642. "For an error to be harmful, 'the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.'" City of Hildale v. Cooke, 2001 UT 56,¶30, 28 P.3d 697 (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)). Since we review the lawfulness of the underlying TRO in a contempt case, see Utah Farm Prod. Credit Ass'n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988), the issue is whether the outcome of the TRO hearing would have been more favorable to Defendant had he been served with the Notice to Appear or Appoint Counsel and provided with a twenty-day waiting period. We note that Defendant obtained counsel the day following the TRO hearing and therefore had ample opportunity to object to the TRO. Further, even if Defendant had obtained counsel for the TRO hearing, it is difficult to see how the presence of an attorney would have changed the outcome, considering the overwhelming evidence that Defendant was quickly depleting the assets of the B.G. Holbrook Family Trust. Defendant's arguments regarding harm are purely speculative and not supported by the record. Therefore, Defendant has failed to show harm.

Defendant also contends that the trial court's contempt ruling was not supported by sufficient evidence because there is no evidence showing that the 100 violations occurred during the term of the TRO--March 30 to April 9.(1) The trial court's ruling was sound in light of Defendant's admissions and documentary evidence in support of the trial court's ruling. First, Defendant conceded that he had committed at least 150 separate violations of the TRO. For example, Trial Court: [Defendant] had the ability to comply with the Court's order and that he acted in contravention of the Court's order in this case as apparently described in the course of conduct which contains at least 150 transactions that we are referencing here; is that a fair description?

Defendant's Counsel: I think--I would think that's accurate, that he should not have continued to--

Trial Court: Is that--is that what you are stipulating to or not? I mean, that's pretty simple.

Defendant's Counsel: I think the facts would establish that, Your Honor.

Another concession occurred when the trial court asked Defendant directly whether he would stipulate to having committed 150 separate transactions in violation of the TRO. Defendant responded:

Defendant: Your Honor, I'm just trying to understand what that means, "150 separate transactions."

Trial Court: I can tell you right now what it means--

Defendant: But my answer is "yes," I will stipulate to that, that in the course of conduct, when I was managing that account, I told brokers to buy and sell. I don't know how many times, but it was probably 150 times. The trial court accepted this stipulation to mean that Defendant had committed 150 violations of the TRO, but that Defendant still wanted to argue that he did not know that the TRO prohibited the type of conduct in which he had engaged, and that his conduct was not willful or intentional. However, because the trial court found Defendant's testimony as to lack of knowledge and intent to be "tantamount to . . . [a] falsehood and a lie," Defendant cannot reargue evidence in support of his defense theory since we defer to the trial court's determinations of credibility. See State v. Visser, 2001 UT App 215,¶12, 31 P.3d 584.

In addition to Defendant's admissions, account statements from Fidelity Investments (Fidelity) show that during the period from March 31 to April 9, Defendant engaged in over 100 stock trades involving Trust assets. Defendant argues that these records do not show that Defendant violated the TRO because the Fidelity statements show only the settlement dates and not the days on which the actual trades took place. Defendant claims that the settlement date is not the correct date to determine whether he violated the TRO since settlement may have occurred several days after the actual trade was requested. However, Defendant's argument as to the significance of settlement dates fails because Defendant never raised this argument in the trial court. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. Therefore, Defendant's challenge to the sufficiency of the evidence fails.

Defendant also challenges the sufficiency of the trial court's findings of fact.

As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so. . . .

The trial court must enter written findings of fact and conclusions of law with respect to each of the three substantive elements.

Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). In the Order containing the findings of fact and conclusions of law, the trial court found that: (1) Defendant had sufficient knowledge of the TRO, since the trial court explained it to him and provided him with a written copy; (2) Defendant had the ability to comply with the TRO by refraining from investing; and (3) Defendant intentionally violated the TRO over 100 times. The trial court concluded that all of these elements were proved beyond a reasonable doubt given Defendant's admissions and the documentary evidence presented at trial. Therefore, the trial court's findings are adequate since they include all of the required elements.

Finally, Defendant challenges the trial court's imposition of consecutive sentences for contempt, arguing that the trial court should not have considered each violation of the TRO as separate, but rather as one course of conduct. In Department of Registration v. Stone, 587 P.2d 137 (Utah 1978) (per curiam), the supreme court defined the "charge" under Utah Code Ann. § 78-32-10 (1977) as all of the "formal documents served on the person accused of contempt and in response to which he made his appearance." Stone, 587 P.2d at 139. Thus, in Stone, the trial court should have sentenced the defendant for only one charge of contempt since the motion for the order to show cause, the affidavit in support of the motion, and the order to show cause charged the defendant with only one course of conduct instead of 120 separate violations of the trial court's order. See id.

In this case, Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Order to Show Cause and Plaintiffs' Reply Memorandum In Support of Plaintiffs' Motion for Order to Show Cause charge Defendant with violating the TRO over 154 times. These are both formal documents "in response to which [Defendant] made his appearance." Id. Therefore, the trial court acted within its discretion in sentencing Defendant separately for each violation of the TRO.

Accordingly, we affirm.
 
 

______________________________
Pamela T. Greenwood, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. Plaintiffs claim that Defendant requested that the TRO be extended until the preliminary injunction issued. However, because the record does not include Defendant's request, we consider only the original term of the TRO.