2019 UT App 126

THE UTAH COURT OF APPEALS

GARY WILSON,

Appellee,

v.

ELISABETH W. SANDERS AND HIRAM SANDERS,

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 RYAN M. HARRIS authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER 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...)
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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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20180048-CA 12 2019 UT App 126

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, postjudgment 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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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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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.