2024 UT App 33

THE UTAH COURT OF APPEALS

LOIS SMITH,

Appellee,

v.

VOLKSWAGEN SOUTHTOWNE, INC.,

Appellant.

Opinion

No. 20220957-CA

Filed March 14, 2024

Third District Court, Salt Lake Department

The Honorable Barry G. Lawrence

No. 130908362

Rodney R. Parker and Nathanael J. Mitchell, 

Attorneys for Appellant

Michael A. Worel, Colin P. King, and Walter M. 

Mason, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 A plaintiff in a personal injury case, Lois Smith, obtained a 

verdict of $2,700,000, but that verdict and judgment were set aside 

by the trial court. Three years later, the Utah Supreme Court 

determined that the trial court had erred in setting aside the 

verdict. On remand, the trial court awarded over $400,000 in 

postjudgment interest. The defendant, Volkswagen SouthTowne, 

Inc. (Volkswagen) appeals the award of interest. We affirm.
Smith v. Volkswagen SouthTowne

20220957-CA 2 2024 UT App 33

BACKGROUND

¶2 In December 2013, Lois Smith sued Volkswagen for, 

among other claims, product liability and negligence after a 

cracked fuel line in the car she purchased resulted in her suffering 

carbon monoxide poisoning.

¶3 In June 2018, following an eight-day trial, the jury returned 

a verdict in favor of Smith. The jury awarded Smith $2,700,000 in 

general damages. On August 27, 2018, the trial court entered 

judgment on the verdict (2018 Judgment) for $2,700,000 in general 

damages plus $10,030.35 in costs, see Utah R. Civ. P. 54(d)

(providing for an award of costs to the prevailing party), as well 

as “[postjudgment] interest at the rate of 3.76%” pursuant to Utah 

Code section 15-1-4.

¶4 Volkswagen filed motions for judgment as a matter of law,0F

1

see id. Utah R. Civ. P. 50, and a new trial, see R. 59.1F

2 In April 2019, 

the trial court granted Volkswagen’s motion for judgment as a 

matter of law and conditionally granted the motion for a new trial.

Smith appealed.

¶5 Three years later, in June 2022, the Utah Supreme Court 

reversed the trial court’s decision. See Smith v. Volkswagen 

1. Throughout the briefing, the parties refer to the motion as one 

for judgment notwithstanding the verdict. However, the motion 

was a rule 50 motion for judgment as a matter of law. See Smith v. 

Volkswagen SouthTowne, Inc., 2022 UT 29, ¶¶ 2–4, 513 P.3d 729. To 

avoid perpetuating the use of old terminology, we use the 

language consistent with the current Utah Rules of Civil 

Procedure. See Utah R. Civ. P. 50 advisory committee notes to 2016 

amendment (noting the change in terminology).

2. Volkswagen also filed a motion for relief from judgment, see 

Utah R. Civ. P. 60(b), which the court determined was moot in 

light of its decision on the other two motions.
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20220957-CA 3 2024 UT App 33

SouthTowne, Inc., 2022 UT 29, ¶ 4, 513 P.3d 729. Our supreme court 

ordered “the jury’s verdict reinstated.” Id. ¶ 150.

¶6 Following the remand, on September 19, 2022, the trial 

court entered a new judgment (2022 Judgment) identical to the 

2018 Judgment except that it included accrued interest “beginning 

August 27, 2018 in the amount of $407,588.56 with a per diem of 

$279.17 after August 26, 2022.” This brought the total judgment 

entered to $3,117,618.91. The trial court also noted that it denied 

Volkswagen’s objection to the proposed judgment, an objection 

which Volkswagen made to the award of postjudgment interest 

from August 28, 2018, to the date of the 2022 Judgment.2F

3

Volkswagen appeals.

ISSUE AND STANDARD OF REVIEW

¶7 On appeal, Volkswagen argues that the trial court erred by 

awarding Smith postjudgment interest from the date of the 2018 

Judgment. “We review the award of postjudgment interest, a 

question of law,” for correctness. Bailey-Allen Co. v. Kurzet, 876 

P.2d 421, 427 (Utah Ct. App. 1994).

ANALYSIS

¶8 Volkswagen’s argument against the trial court’s order of 

postjudgment interest is twofold—first, that the court 

misinterpreted the postjudgment interest statute and second, that 

the court violated the mandate rule. We address each argument 

in turn.

3. Recognizing that the principal amount of the judgment was no 

longer subject to challenge, Volkswagen paid Smith $2,710,030.35

in August 2022, withholding only the postjudgment interest 

amount.
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20220957-CA 4 2024 UT App 33

I. Postjudgment Interest Statute

¶9 In Utah, “final civil and criminal judgments of the district 

court and justice court shall bear interest at the federal 

postjudgment interest rate . . . plus 2%.” Utah Code § 15-1-4(3)(a). 

The parties’ dispute on appeal is not over whether postjudgment 

interest applies here; rather, the disagreement is over what point 

in time the court had statutory authority to apply the interest. In 

reaching its decision to award postjudgment interest from the 

2018 Judgment date to the present, the trial court relied on Hewitt 

v. General Tire & Rubber Co., 302 P.2d 712 (Utah 1956), where our 

supreme court stated that it could not “see any good reason why 

[a] plaintiff should lose [postjudgment] interest because [a]

defendant was able to convince the trial court to make an 

erroneous ruling.” Id. at 714.

¶10 Volkswagen argues that the trial court erred in relying on 

Hewitt as the statutory scheme has since changed. At the time of 

the decision in Hewitt, the postjudgment interest statute stated 

that “any judgment rendered on a lawful contract” was subject to 

postjudgment interest. Id. at 713 (cleaned up). The statute was 

amended in 1999 to more broadly address other civil and criminal 

judgments. See Act of Feb. 23, 1999, ch. 279, § 1, 1999 Utah Laws 

919, 919. Then in 2014, the legislature added the modifier “final” 

to judgments which fell under subsection 3(a), and it defined 

“[f]inal judgment” as “the judgment rendered when all avenues 

of appeal have been exhausted.” See Act of Mar. 13, 2014, ch. 281, 

§ 1, 2014 Utah Laws 1174, 1174. In 2017, the legislature deleted the 

definition for final judgment but kept “final” as a modifier for 

judgments in subsection (3)(a). See Act of Mar. 9, 2017, ch. 379, § 1, 

2017 Utah Laws 2090, 2090. The legislature also added subsection 

(4) to outline postjudgment interest for a “judgment under $10,000

in an action regarding the purchase of goods and services,” but 

that subsection did not employ the “final” modifier. Id. Any

amendments since that time do not include changes relevant here. 

See Utah Code § 15-1-4. Volkswagen would have this court apply 

the definition for final judgment deleted from the 2014 version of 
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20220957-CA 5 2024 UT App 33

the statute, arguing that despite this deletion, there is “no 

indication that the legislature intended” the statute as amended 

today “to change the nature of the finality requirement for 

judgments over $10,000.” Volkswagen further contends, in 

reference to subsections (3)(a) and (4), that “reading the statute to 

permit interest from the date of entry of both ‘final’ judgments 

over $10,000 and ‘judgments’ under $10,000 violates the principle 

that readings should be avoided that render portions of the statute 

redundant.” We disagree.

¶11 The statute is not redundant under its express terms, as 

subsection (3)(a) applies to judgments not covered by subsection 

(4) while subsection (4) applies only to certain judgments under

$10,000. See id. § 15-1-4(3)(a)–(4). We acknowledge that 

throughout the statute’s evolution, the legislature could have 

chosen to amend the statute to combine the two subsections into 

a single subsection, but the legislature did not do so, nor did it 

have to.

¶12 More importantly, we cannot ignore the legislature’s 

choice to leave final judgment undefined when it deleted the 

definition from the current postjudgment interest statute. When

interpreting a statute, “we presume that the legislature was 

deliberate in its choice of words.” 2 Ton Plumbing, LLC v. 

Thorgaard, 2015 UT 29, ¶ 31, 345 P.3d 675 (cleaned up). If the 

legislature removes or replaces language in a statute, “in the 

absence of any clear legislative indication to the contrary, we take 

the [l]egislature at its word.” State v. Wallace, 2006 UT 86, ¶¶ 10–

12, 150 P.3d 540; see id. ¶ 16 (concluding that courts cannot insert 

terms that the legislature “explicitly removed by amendment”); 

accord Joe v. Lebow, 670 N.E.2d 9, 19 (Ind. Ct. App. 1996) (“When a 

statute contains language which is deleted by the legislature, we 

presume that the legislature intended the deletion to represent a 

change in the law.”); State v. Eversole, 889 S.W.2d 418, 425 (Tex. 

App. 1994) (“It is a general rule of statutory construction that 

when the legislature amends a particular statute and omits certain 

language of the former statute in its amended version, the 
Smith v. Volkswagen SouthTowne

20220957-CA 6 2024 UT App 33

legislature specifically intended that the omitted portion is no 

longer the law. Every word excluded from a statute must be 

presumed to have been excluded for a reason.”); Nello L. Teer Co. 

v. North Carolina Dep't of Transp., 625 S.E.2d 135, 138 (N.C. Ct. App. 

2006) (“[I]f the legislature deletes specific words or phrases from 

a statute, it is presumed that the legislature intended that the 

deleted portion should no longer be the law.”). So, quite the 

opposite of Volkswagen’s argument is true here, as the choice to 

delete the final judgment definition is in fact a clear indication that 

the legislature intended the nature of the finality requirement to 

change. Following our practice for statutory interpretation, we 

presume the legislature’s choices to delete the final judgment 

definition and add subsection (4) for postjudgment interest on 

certain judgments under $10,000—noticeably excluding the 

modifier “final” in that subsection—was deliberate. See 2 Ton 

Plumbing, 2015 UT 29, ¶ 31. As Smith points out, with the word 

“final” appearing only in subsection (3)(a), the sole effect of the 

definition’s deletion was to alter the meaning of subsection (3)(a)

rather than subsection (4). Thus, having determined that the 

deleted definition of final judgment no longer applies, we are left 

to determine how to define the term in the context of this case.

¶13 “When the legislature borrows terms of art in which are 

accumulated the legal tradition and meaning of centuries of 

practice, it presumably knows and adopts the cluster of ideas that 

were attached to each borrowed word in the body of learning 

from which it was taken.” Oliver v. Utah Labor Comm’n, 2017 UT 

39, ¶ 33, 424 P.3d 22 (cleaned up); see also Rueda v. Utah Labor 

Comm’n, 2017 UT 58, ¶ 33, 423 P.3d 1175 (“The legislature is 

entitled to invoke specialized legal terms that carry an 

extraordinary meaning. And when it does so we credit the legal 

term of art, not the common understanding of the words.”

(cleaned up)); id. ¶ 107 (“[W]e presume that the legislature is 

aware of legal terms and their meanings . . . .”). As the legislature 

chose not to define final judgment, which is a legal term of art, we 

will use the traditional legal definition. Based on the legal 

tradition of centuries of practice in our judicial system, a final 
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20220957-CA 7 2024 UT App 33

judgment “ends the controversy between the parties” prior to 

appeal. Salt Lake City Corp. v. Layton, 600 P.2d 538, 539 (Utah 1979) 

(“As a general rule an appeal may be taken to this court only from 

a final order or judgment. A judgment is final when it ends the 

controversy between the parties litigant.” (cleaned up)); see also 

Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 34 n.22, 201 P.3d 

966 (“We have defined a final judgment as one that ends the 

controversy between the parties.” (cleaned up)); Bradbury v. 

Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (“An appeal is improper if it 

is taken from an order or judgment that is not final . . . . For an 

order or judgment to be final, it must dispose of the case as to all 

the parties, and finally dispose of the subject-matter of the 

litigation on the merits of the case. In other words, a judgment is 

final when it ends the controversy between the parties litigant.”

(cleaned up)).

¶14 Here, the 2018 Judgment came when, at the conclusion of 

an eight-day trial, the jury returned a verdict in favor of Smith and

the trial court entered judgment on the verdict. There was nothing 

left to be decided beyond whether to file an appeal and later 

whether to grant a motion for judgment as a matter of law; 

therefore, the 2018 Judgment was a final judgment to which 

postjudgment interest statutorily applied. See Utah Code § 15-1-

4(3)(a). Thus, though the statute has gone through numerous 

iterations since the time of the Hewitt decision, the statutory 

scheme as it stands today does not impact the applicability of

Hewitt, and postjudgment interest applies from the date of the 

2018 Judgment. Smith should not lose her interest because 

Volkswagen “was able to convince the trial court to make an 

erroneous ruling.” Hewitt, 302 P.2d at 714.3F

4

4. Volkswagen points to Mason v. Western Mortgage Loan Corp., 754 

P.2d 984 (Utah Ct. App. 1988), which this court distinguished 

from Hewitt. However, while Hewitt provides a near precise 

factual and procedural comparison to the present case, the 

(continued...)
Smith v. Volkswagen SouthTowne

20220957-CA 8 2024 UT App 33

II. Mandate Rule

¶15 Volkswagen further argues that the trial court’s violation 

of the mandate rule led it to erroneously rely on Hewitt v. General 

Tire & Rubber Co., 302 P.2d 712 (Utah 1956). “Under the mandate 

rule, issues resolved by an appellate court bind the trial court on 

remand, and generally bind this court should the case return on 

appeal after remand.” Wasatch County v. Okelberry, 2015 UT App 

192, ¶ 30, 357 P.3d 586, (cleaned up), cert. denied, 364 P.3d 48 (Utah 

2015). As noted by the trial court, the facts in Hewitt and the case 

before us are “materially similar.” In Hewitt, the jury returned a 

verdict in favor of the plaintiff. 302 P.2d at 712. The clerk signed 

and entered the judgment on the verdict. Id. The defendant 

“renewed its motion for directed verdict,” which the trial court 

granted, thereby setting aside the verdict and judgment entered. 

Id. The court then entered a new judgment in favor of the 

defendant. Id. On appeal, our supreme court reversed the 

judgment, ordering that the trial court’s judgment be set aside. Id. 

The only relevant discrepancy between Hewitt and this case is that 

in Hewitt the supreme court ordered “the judgment upon the jury 

verdict be reinstated.” Id. In the present case, the supreme court 

ordered “the jury’s verdict reinstated.” Smith v. Volkswagen 

SouthTowne, Inc., 2022 UT 29, ¶ 150, 513 P.3d 729. Volkswagen 

clings to this slight difference by arguing that because of it, Hewitt 

is not controlling, and the trial court violated the mandate rule as

“the supreme court did not order the original judgment 

‘revitalized.’”

¶16 While our supreme court used the language of “jury’s 

verdict” rather than “judgment upon the jury verdict” when it 

procedural differences in Mason make it unhelpful. Mason

involved a bench trial after which the judge entered the original 

judgment in favor of the defendant rather than the plaintiff. Id. at 

985–86. Therefore, as Volkswagen acknowledges, nothing was 

being reinstated, and thus Mason is too procedurally askew from 

the issue before us to persuade us that it is applicable here.
Smith v. Volkswagen SouthTowne

20220957-CA 9 2024 UT App 33

remanded after reversing the trial court’s grant of judgment as a 

matter of law, the supreme court gave no indication that it 

intended any different result on remand from that which occurred 

in Hewitt. Smith points out that other courts addressing this issue 

have recognized that it is necessary “to consider not merely the 

literate form but the substance of the reversal on the previous 

appeal,” see Espinoza v. Rossini, 257 Cal. App. 2d 567, 572–73 (Ct. 

App. 1967), and provides us with a helpful, factually similar case 

from the Missouri Court of Appeals, see Redican v. K Mart Corp., 

785 S.W.2d 578 (Mo. Ct. App. 1990). In Redican, as in Hewitt and 

the case before us, the jury returned a verdict in favor of the 

plaintiff, which the trial court then set aside, granting the 

defendant’s motion for judgment as a matter of law. Id. at 578. The 

appellate court reversed the trial court’s ruling and reinstated the 

jury’s verdict for the plaintiff. Id. at 580. In Redican, the court 

anticipated a question would arise about when postjudgment 

interest should run and addressed it by stating, 

The judgment is reversed and this cause is 

remanded with directions to enter judgment on the 

verdict returned on January 25, 1989. The judgment 

entered pursuant to this remand shall be effective 

from January 25, 1989, and shall bear interest from 

that date.

Id. Smith’s argument is well taken: the language in the appellate 

court’s mandate in Redican to “enter judgment on the verdict,” id., 

is equivalent to the court’s mandate in the present case ordering 

the “jury’s verdict reinstated,” Smith, 2022 UT 29, ¶ 150.4F

5 While it 

is helpful that the Redican court explicitly stated that 

postjudgment interest applied from the date of the original 

judgment, see 785 S.W.2d at 580, it was not necessary for our 

5. As further evidence that Redican v. K Mart Corp., 785 S.W.2d 578 

(Mo. Ct. App. 1990), is an appropriate illustrative case here, both 

Redican and Hewitt rely on Reimers v. Frank B. Connet Lumber Co., 

273 S.W.2d 348, 349 (Mo. 1954). 
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20220957-CA 10 2024 UT App 33

supreme court to do the same given Utah’s prevailing caselaw. 

Under Hewitt, postjudgment interest runs from the date of the 

original judgment as there is no “good reason why [a plaintiff] 

should lose [postjudgment] interest because [a defendant] was 

able to convince the trial court to make an erroneous ruling.” 302 

P.2d at 714. And Hewitt applies because, again, there is no 

indication that the supreme court here intended a different result 

than what occurred in Hewitt by reinstating the verdict rather than 

by explicitly reinstating the judgment on the verdict. This slight 

difference in language is immaterial as its effect is to revitalize 

both the verdict and judgment when a judgment as a matter of 

law is reversed. See, e.g., Brown v. Medical Mutual Liab. Ins. Society 

of Md., 599 A.2d 1201, 1204–05 (Md. Ct. Spec. App. 1992) (“Here, 

the [judgment as a matter of law] was, in fact, reversed on appeal, 

which means that the original jury verdict must be reinstated as if 

it had never been eliminated by the trial court. . . . Simply 

mandating that judgment be entered ‘on the verdict of the jury,’ 

was sufficient to trigger the award of [postjudgment] interest 

from that date.” (cleaned up)).

¶17 Thus, the mandate rule was not violated because whether 

the supreme court’s mandate is to reinstate the verdict or judgment 

on the verdict is inconsequential, and the result is the same—the 

original judgment is revitalized.

CONCLUSION

¶18 The trial court properly awarded Smith postjudgment 

interest from the date of the 2018 Judgment, as the court acted 

within its statutory authority and in line with the applicable 

caselaw. Furthermore, the trial court did not violate the mandate 

rule as there is no indication that our supreme court intended any 

different result from that which occurred on remand when the 

trial court awarded the postjudgment interest. We affirm.