2018 UT App 199

THE UTAH COURT OF APPEALS

BODELL CONSTRUCTION COMPANY,

Appellee,

v.

FIRST INTERSTATE FINANCIAL LLC, FIRST INTERSTATE FINANCIAL 

UTAH LLC, FIRST INTERSTATE FINANCIAL LLC, AND 

PAUL THURSTON,

Appellants.

Opinion

No. 20160855-CA

Filed October 18, 2018

Third District Court, Salt Lake Department

The Honorable Mark S. Kouris

No. 120901496

Karra J. Porter, Kristen C. Kiburtz, and James C. 

Lewis, Attorneys for Appellants

Jeffrey L. Silvestrini, Stephen T. Hester, and Bradley 

M. Strassberg, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and 

DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1 A jury found that First Interstate Financial LLC, First 

Interstate Financial Utah LLC, First Interstate Financial LLC, and 

Paul Thurston (Thurston),1 defrauded Bodell Construction 

Company (Bodell) by misrepresenting a real estate investment. 

 

1. Because we use “Thurston” interchangeably to refer to both 

Paul Thurston individually and the appellants collectively, we 

use singular, masculine pronouns for convenience.
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Bodell discovered the misrepresentations after learning that 

McGillis Investment Company (McGillis) had sued Thurston 

over the same investment (the McGillis Litigation). The McGillis 

Litigation is central to each claim of error presented on appeal. 

First, Thurston challenges the admission of evidence relating to 

the McGillis Litigation, claiming that any probative value was 

substantially outweighed by the risk of unfair prejudice. Second, 

Thurston contends that he was entitled to a directed verdict 

because the undisputed facts established that the statute of 

limitations on Bodell’s fraud claims began to run as a matter of 

law before Bodell discovered the McGillis Litigation. Third, 

Thurston challenges the jury’s punitive damages award on due 

process grounds, claiming that the award was intended to 

punish him for conduct that formed the basis of the McGillis 

Litigation. We affirm.

BACKGROUND

¶2 In 2006, Thurston persuaded Bodell to invest $1.2 million 

in the development of condominiums in San Francisco, 

known as 310 Townsend (the 310 Townsend Project). Thurston 

represented to Bodell that the 310 Townsend Project did 

not have any current or foreseeable problems. Thurston also 

told Bodell that he had personally invested over $4 million of 

his own “cash equity” in the project. Bodell considered it 

significant that Thurston had “skin in the game” by placing his 

own money at risk and relied upon that representation in 

deciding to invest.

¶3 In truth, Thurston had bought his interest in the 310 

Townsend Project by borrowing over $4 million from McGillis. 

To obtain the loan, Thurston misrepresented to McGillis that he 

was acting on behalf of a group of developers from southern 

California. McGillis believed that Thurston had vetted the 

borrowers and paid him a fee for finding and underwriting the 

loan.
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¶4 Before approaching Bodell, Thurston had told McGillis 

that the southern California developers needed more time to 

repay the loan because the project was experiencing permit 

delays and cost overruns. McGillis agreed to extend the loan for 

a $1.2 million payment. Thurston then asked Bodell to contribute 

the $1.2 million without disclosing the current problems with the 

310 Townsend Project, the existence of the McGillis loan, or the 

fact that Bodell’s investment was needed to extend the McGillis 

loan.

¶5 After Bodell invested, Thurston provided Bodell’s 

representative with a letter explaining that the 310 Townsend 

Project was experiencing delays, permit problems, and cost 

overruns. When Bodell’s representative questioned why the 

project was not as Thurston had represented, Thurston claimed 

that he was as surprised as Bodell and “had no idea that there 

were issues like this” when he encouraged Bodell to invest. 

Thurston told Bodell that they had both been misled. Believing 

that they were “teammates” and “on the same side,” Bodell’s 

representative continued to work with Thurston for several 

months in an attempt to salvage the investment. But, in 2007, 

Bodell asked Thurston for its money back. Thurston apologized 

for not realizing the problems with the 310 Townsend Project 

and returned a $50,000 premium that Bodell had paid for the 

opportunity to invest.

¶6 Several years later, Bodell filed this action against 

Thurston for an accounting and breach of the covenant of good 

faith and fair dealing. As part of his initial disclosures, Thurston 

produced documents that referenced the McGillis Litigation. 

Bodell obtained transcripts from the McGillis Litigation and 

discovered the existence of the McGillis loan, Thurston’s 

representations to McGillis that the 310 Townsend Project was

experiencing delays and cost overruns before Bodell invested, 

and that Thurston needed $1.2 million to extend the McGillis 

loan. Upon learning these additional facts, Bodell amended its 

complaint to allege fraud and fraudulent concealment. 

Specifically, Bodell alleged that it had been fraudulently induced 
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into investing in the 310 Townsend Project and would not have 

invested if Thurston had disclosed all material aspects of the 

deal.

¶7 Before trial, Thurston filed a motion in limine seeking to 

exclude “any reference” to the McGillis Litigation. Bodell 

opposed the motion, arguing that the McGillis Litigation was 

relevant to its fraud and fraudulent concealment claims. 

Specifically, in reviewing the McGillis Litigation transcripts, 

Bodell had learned that Thurston knew of the problems with the 

310 Townsend Project at the time he asked Bodell to invest and 

that Thurston had not invested his own cash equity but instead 

needed Bodell’s investment to secure an extension on the 

McGillis loan. Bodell argued that this evidence was also relevant 

to refute Thurston’s statute-of-limitations defense because it 

would show it could not have reasonably discovered the fraud 

before obtaining the McGillis Litigation transcripts.

¶8 At the pretrial motion hearing, Thurston conceded that 

evidence of the McGillis Litigation, as it pertained to the 310 

Townsend Project and the McGillis loan, was relevant to Bodell’s 

fraud claims and statute-of-limitations argument. Accordingly, 

Thurston narrowed his motion in limine and sought to exclude

only two categories of evidence relating to the McGillis 

Litigation: (1) the “dozens and dozens” of other transactions at 

issue in the McGillis Litigation that were unrelated to the 310 

Townsend Project and (2) “information concerning the outcome 

of that case, the verdict, [and] the findings of fact.” Bodell 

indicated that the parties were “largely in agreement on the 

scope of an order in limine if there’s going to be one” but argued 

that it was unnecessary at this point. The court agreed, 

indicating that it would rule on objections to the evidence at 

trial.

¶9 Thurston expressed concern that, without an order in 

limine, some of Bodell’s witnesses, who harbored animus 

against him, might intentionally blurt out prejudicial 

information. The court indicated that Thurston’s concern could 

be addressed by having Bodell instruct its witnesses about 
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“staying on track” and answering only the question posed. 

Bodell indicated it had already talked to its witnesses and they 

understood that. Based on those representations, the court 

denied the motion.

¶10 Bodell’s representative was the first witness at trial. When 

he was asked about the McGillis Litigation, Thurston objected, 

claiming the evidence was irrelevant and prejudicial. In 

response, Bodell argued that the testimony was relevant because 

“[i]t goes to how he discovered the fraud.” The court overruled 

Thurston’s objections and allowed the representative to testify as 

to what “he learned about through the lawsuit,” but it directed 

Bodell’s counsel to “be very shallow” in discussing the lawsuit 

itself.

¶11 Bodell’s representative went on to testify that he learned 

from the McGillis Litigation that Thurston had not invested his 

own money in the 310 Townsend Project as he represented, that 

the McGillis loan was the source of the funds, and that Bodell’s 

investment was used to get an extension on that loan. The 

representative further testified that he learned Thurston had told 

McGillis that there were problems with the 310 Townsend 

Project that required an extension of the loan even though 

Thurston had represented to Bodell that there were no such 

problems. Thurston objected to this testimony on hearsay 

grounds, but the court overruled those objections.

¶12 On cross-examination, Thurston questioned the 

representative about Bodell’s responses to certain 

interrogatories. Specifically, he asked what information Bodell 

had to support the claim that Thurston had defaulted on the 

McGillis loan. The representative answered:

That he was perhaps going to default. I don’t know 

exactly, but yes. I learned through that trial, 

learned that—that’s where I learned about—one of 

the sources of learning about the big default, I 

mean the cheating McGillis out of $2 million that 
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he was successful in winning, a fraud against Mr. 

Thurston.

Thurston did not object or move to strike the answer as 

nonresponsive but instead asked the witness to “limit [his] 

answer to [the] question.”

¶13 Bodell requested a sidebar at which it suggested that 

Thurston “opened the door with that question. He has asked 

him about the result of the trial however you look at it.” The 

court agreed, stating, “That’s precisely what you’re 

doing . . . . You’re opening the door to let them bring the trial 

in.” Thurston conceded, “It’s in.” Thurston explained that this 

line of questioning was designed to show that there was no 

support for some of the claims made in Bodell’s answers to 

interrogatories. The court surmised that “this area that [Thurston 

was] getting into now probably doesn’t require [further 

discussion of] the [McGillis] trial” and allowed Thurston to 

finish his cross-examination. The court indicated that it would 

address the matter the following morning outside of the jury’s 

presence.

¶14 When testimony resumed, Thurston again asked about 

the basis for Bodell’s assertion that Thurston was in default on 

the McGillis loan, specifically asking whether Bodell had any 

documentation to that effect. Bodell’s representative answered, 

“Well, I’m not aware of anything directly, just what I understood 

occurred in the McGillis case where they won the fraud 

judgment against [Thurston] related to this and other 

investments.” Thurston did not object or move to strike this 

testimony.

¶15 The following morning, Thurston argued that the 

testimony regarding the outcome of the McGillis Litigation was 

not only prejudicial but false. He explained that the verdict in 

the McGillis Litigation was for breach of fiduciary duty, not 

fraud, and that it was impossible to determine whether the jury’s 

verdict even related to the 310 Townsend Project given the 
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number of transactions at issue in that case. Thurston explained 

that he did not move to strike the testimony because he did not 

want to draw attention to it, but that he did not “know how to 

unring that bell.” The court indicated that it could be remedied 

with a curative instruction. Going forward, the court ruled:

I think the other trial certainly does come in, the 

other trial in terms of discovering what happened 

and what you discovered from the trial I think 

comes in. I don’t think there’s any need to bring 

the verdict in not the verdict form or anything like 

that, but if in fact we have to determine when it 

was that [Bodell] discovered that there were some 

improprieties, at least the first time he learned that, 

that’s highly relevant with regard to the statute of 

limitations.

The court reiterated that it would issue a curative instruction 

regarding the testimony about the McGillis Litigation verdict, 

stating, “I don’t think the result has any relevance here. That 

said, the proceedings certainly do have relevance because that 

was when [Bodell] made the discovery” of the alleged fraud. 

Accordingly, the court ruled that “the details of that trial 

certainly can come in. The only thing that’s not going to come in 

will be the verdict.” Bodell clarified that it could “talk about the 

parties to the case, the allegations of the case, but not the results 

of the case.” The court confirmed, “Yes. I think that’s fair.”

¶16 When the jury reconvened, the district court gave the 

following curative instruction:

And maybe since it’s fresh on the jury’s mind, 

there was a reference yesterday to the result of the 

other trial we’re talking about and that reference 

not only doesn’t appear accurate, but quite frankly 

it wasn’t even supposed to come in this trial. So I 

would ask you to disregard that. That is not what 
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happened. So just so you know, if you recall the 

reference yesterday, please disregard. If you don’t 

recall, that’s fine.

Thurston did not object to this instruction or request further 

relief.

¶17 During the remainder of trial, Bodell elicited testimony on 

three occasions regarding the nature of the allegations in the 

McGillis Litigation. First, Bodell asked McGillis’s managing 

partner what claims had been alleged in the lawsuit:

A: There were many and I might be missing 

some. One of them was elder abuse. The other was 

contract fraud, fiduciary—

Q: Breach of fiduciary duty?

A: Breach of fiduciary duty, fraud, contract, 

elder abuse, maybe misrepresentation. Those are 

the ones that are prevalent in my mind.

Bodell also asked McGillis’s bookkeeper whether she knew what 

claims were at issue in the McGillis Litigation:

A: Claims of fraud, and elder abuse and breach 

of fiduciary duty. Those were a few of them. I think 

there were maybe some more, but those were the 

main ones.

. . .

Q: But with respect to the other transaction that 

counsel asked you about that were part of that 

lawsuit, were there similar problems with alleged 

fraud?

A: Yes.
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Finally, in response to Bodell’s questions on cross-examination, 

Thurston acknowledged that he had been “sued for fraud by Mr. 

McGillis.” In all three instances, Thurston raised no 

contemporaneous objection.

¶18 At the close of Bodell’s case-in-chief, Thurston moved for 

a directed verdict on the ground that the three-year statute of 

limitations barred Bodell’s claims. The court denied the motion. 

The question was submitted to the jury.

¶19 By special verdict, the jury found that the statute of 

limitations did not bar Bodell’s claims. It also found that 

Thurston had committed fraud against Bodell, had fraudulently 

concealed important facts from Bodell, and had made negligent 

representations to Bodell. Finally, the jury found, by clear and 

convincing evidence, that Bodell should be awarded punitive 

damages. The jury awarded Bodell $356,141 in compensatory 

damages and $7.5 million in punitive damages.

¶20 Thurston filed a motion for judgment notwithstanding the 

verdict, a new trial, and remittitur. Relevant here, Thurston 

sought a new trial based on prejudicial evidence admitted 

regarding the McGillis Litigation; judgment notwithstanding the 

verdict based on his statute-of-limitations defense; and judgment 

as a matter of law, a new trial, or remittitur on the punitive 

damages. The district court denied the motion except as to the 

remittitur of punitive damages. The district court found the 

punitive damages excessive, and Bodell accepted a remittitur of 

punitive damages to $356,141, an amount equal to actual 

damages. Thurston appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 Thurston first asks this court to determine whether he 

was deprived of a fair trial when the district court admitted 

evidence concerning allegations made against him in the 

McGillis Litigation. “We review a [district] court’s decision to 

admit or exclude evidence under Rule 403 of the Utah Rules of 
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Evidence under an abuse of discretion standard, and will not 

overturn a lower court’s determination of admissibility unless it 

is beyond the limits of reasonability.” Gregory & Swapp, PLLC v. 

Kranendonk, 2018 UT 36, ¶ 20, 424 P.3d 897 (quotation 

simplified).

¶22 We next consider whether Thurston was entitled to 

judgment as a matter of law based on the statute of limitations. 

“When reviewing any challenge to a trial court’s denial of a 

motion for directed verdict, we review the evidence and all 

reasonable inferences that may fairly be drawn therefrom in the 

light most favorable to the party moved against, and will sustain 

the denial if reasonable minds could disagree with the ground 

asserted for directing a verdict.” Barrientos ex rel. Nelson v. Jones, 

2012 UT 33, ¶ 9, 282 P.3d 50 (quotation simplified). If the denial 

of a directed verdict relies upon any underlying legal 

conclusions, those conclusions are reviewed for correctness. See 

Liley v. Cedar Springs Ranch Inc., 2017 UT App 166, ¶ 12, 405 P.3d 

817.

¶23 Finally, we are asked to determine whether the district 

court erred in failing to grant a new trial with regard to punitive 

damages. Failure to grant a new trial is reviewed for an abuse of 

discretion. See Barrientos, 2012 UT 33, ¶ 7 (noting that “because 

the grant of a new trial is ordinarily left to the sound discretion 

of the trial court,” we review the district court’s decision to deny 

a new trial “under an abuse of discretion standard” (quotation 

simplified)).

ANALYSIS

I. Evidence Regarding the McGillis Litigation

¶24 Thurston contends that he is entitled to a new trial 

because the court admitted prejudicial testimony regarding the 

McGillis Litigation. Specifically, Thurston challenges the 

admission of testimony concerning (1) the outcome of the 

McGillis Litigation and (2) the allegations of elder abuse, fraud, 
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and other claims in the McGillis Litigation. Although Thurston 

raised these arguments below in a rule 59 motion for a new trial, 

he has not appealed the district court’s denial of that motion. 

Instead, he asks us to directly review the district court’s legal 

errors at trial. However, he has failed to identify any legal error 

committed by the district court, much less show that any alleged 

error was preserved for appellate review.

¶25 With respect to the testimony regarding the outcome of 

the McGillis Litigation, Thurston has not identified any adverse 

ruling by the district court for our review on appeal. Before trial, 

the district court declined to enter a categorical order in limine, 

but it agreed with Thurston that the results of the McGillis 

Litigation were inadmissible and cautioned Bodell to instruct its 

witnesses accordingly. When Bodell’s representative 

unexpectedly testified that McGillis had prevailed against 

Thurston on its fraud claim, Thurston made no objection or other 

motion on which the court could rule. Thurston’s counsel later 

explained that his failure to object was a tactical decision to 

avoid drawing undue attention to the testimony. On appeal, he 

does not claim that the court plainly erred in declining to 

intervene sua sponte.

¶26 When the matter was later discussed outside the jury’s 

presence, Thurston did not move the court to strike the 

testimony, issue a curative instruction, grant a mistrial, or 

provide any other relief. The court confirmed that the McGillis 

Litigation verdict was inadmissible and decided, sua sponte, to 

issue a curative instruction. That instruction not only informed 

the jury that the testimony regarding the McGillis verdict was 

inadmissible and should be disregarded but also stated that the 

testimony “doesn’t appear to be accurate” and “is not what 

happened.” Thurston did not object to this curative instruction 

as insufficient or request any other relief. Thurston does not 

allege that the district court plainly erred in failing to do more.

¶27 Rather than take issue with the district court’s rulings, 

Thurston suggests that the “error” arose when Bodell’s 

representative violated the district court’s directive not to 
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discuss the outcome of the McGillis Litigation.2 He asks us to 

review the prejudicial effect of that violation without regard to 

the district court’s rulings.3 “Appellate courts review the 

decisions of lower courts. We do not review the actions of 

counsel—at least not directly.” State v. Hummel, 2017 UT 19, 

¶ 107, 393 P.3d 314. Nor do we “review the trial record in a 

search for an idealized paradigm of justice.” State v. Thornton, 

2017 UT 9, ¶ 49, 391 P.3d 1016 (explaining that “American courts 

have long followed the ‘writ of error’ approach to appellate 

 

2. On appeal, Thurston also alleges that Bodell “doubled down” 

by referring to this stricken testimony when counsel argued in 

closing that Thurston “defrauded Mr. McGillis and lied to him 

about being the borrower on the 310 Townsend loan” and when 

he urged the jury not to let Thurston “do to you what he did to 

Mr. McGillis to the tune of $2.4 million.” Bodell maintains that 

this argument was based on Thurston’s own admissions during 

the trial in this case. We need not decide whether this was 

proper argument, because Thurston made no contemporaneous 

objection and has not argued on appeal that the court plainly 

erred by not intervening sua sponte.

3. Thurston asserts that Wilson v. IHC Hospitals, Inc., 2012 UT 43, 

289 P.3d 369, supports such an approach. We disagree. In Wilson, 

the Utah Supreme Court held that counsel’s repeated violation 

of an order in limine categorically excluding evidence of 

collateral source benefits was sufficiently prejudicial to warrant a 

new trial. Id. ¶ 29. But, unlike in this case, the issue in Wilson was 

properly preserved. As the court noted, “[o]n the fourth day of 

trial, when IHC asked Mr. Wilson about the amount of 

out-of-pocket expenses his family had incurred in purchasing 

Jared’s wheelchair, the Wilsons objected, arguing ‘this [is] a 

direct violation of the Court’s order.’” Id. ¶ 29 n.6. The court held 

that “[t]his objection was both timely and sufficient to preserve 

the collateral source issue for appeal.” Id. In contrast, Thurston 

failed to make a timely objection to the testimony in such a way 

that the court could rule on it.
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review”). Our role as an appellate court is to review “specific 

rulings made by the trial court.” Wing v. Still Standing Stable LLC, 

2016 UT App 229, ¶ 17, 387 P.3d 605 (quotation simplified). In 

other words, “[w]e ask only whether the trial court committed a 

reversible error in resolving a question presented for its 

determination.” Thornton, 2017 UT 9, ¶ 49.

¶28 Here, Thurston has not challenged any specific district 

court ruling nor has he invoked an exception to the preservation 

requirement by arguing that the district court plainly erred in 

failing to take further action sua sponte. Instead, by asking us to 

directly review the prejudicial effect of the testimony without 

regard to the district court’s rulings, Thurston attempts “an 

end-run around the law of preservation (and the doctrine of 

plain error review).” Hummel, 2017 UT 19, ¶ 112.

¶29 Thurston takes a similar approach in challenging 

testimony identifying the specific claims at issue in the McGillis 

Litigation. Although Thurston originally moved for an order in 

limine excluding “any reference” to the McGillis Litigation, he 

later conceded that evidence of the McGillis Litigation was 

relevant and admissible so long as it concerned the 310 

Townsend Project. By the time of trial, Thurston had abandoned 

his motion in limine except with respect to evidence regarding 

the McGillis Litigation verdict and information about unrelated 

investments at issue in that case.4

¶30 The court’s midtrial ruling was consistent with Thurston’s 

modified position. While the court excluded evidence regarding 

the verdict, it ruled that the allegations in the McGillis Litigation 

were admissible to prove what Thurston knew and represented 

to others at the time he induced Bodell’s investment and when 

 

4. Thurston does not argue that the claims of fraud, elder abuse, 

and misrepresentation in the McGillis Litigation were unrelated 

to the 310 Townsend Project.
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Bodell learned of those facts. Thurston voiced no objection and 

sought no clarification of the court’s ruling.

¶31 Nor did he object when Bodell asked witnesses to name 

the specific legal claims at issue in the McGillis Litigation. Three 

witnesses each testified that the lawsuit involved fraud claims, 

and two of those witnesses mentioned additional claims of elder 

abuse and breach of fiduciary duty. The district court had no 

opportunity to rule on the relevance of this specific testimony 

because Thurston made no contemporaneous objection.

¶32 “When an issue is not preserved in the trial court, but a 

party seeks to raise it on appeal, the party must establish the 

applicability of [the preservation] exceptions to persuade an 

appellate court to reach that issue.” State v. Johnson, 2017 UT 76, 

¶ 19, 416 P.3d 443. Here, Thurston has not argued, let alone 

established, a valid exception to the preservation requirement 

that would justify reaching this unpreserved issue.

II. Statute of Limitations

¶33 Thurston challenges the district court order denying his 

motion for a directed verdict. He argues that he was entitled to 

judgment on Bodell’s fraud and fraudulent concealment claims 

because the undisputed facts established that the statute of 

limitations barred those claims. Specifically, Thurston contends 

that the three-year limitation period for fraud claims began to 

run in 2007 when Bodell, having determined that the 310 

Townsend Project was not proceeding as represented, 

demanded a return of its investment. Thurston argues that 

Bodell admittedly had knowledge of facts that could form the 

basis of a cause of action, triggering the statute of limitations as a 

matter of law. Because this action was not brought within three 

years of that date, Thurston contends that he was entitled to a 

directed verdict.

¶34 The relevant statute of limitations for fraud claims 

provides that the “cause of action does not accrue until the 

discovery by the aggrieved party of the facts constituting the 
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fraud or mistake.” Utah Code Ann. § 78B-2-305(3) (LexisNexis 

2012). This statutory discovery rule tolls the running of the 

three-year limitations period until the date a plaintiff either 

discovers or should have discovered the fraud claim. See Russell 

Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 23, 108 P.3d 741. “[T]he 

determination of when the aggrieved party reasonably should 

have known of the facts forming the basis of the party’s fraud 

claim is a question of fact.” Shiozawa v. Duke, 2015 UT App 40, 

¶ 14, 344 P.3d 1174. “Indeed, at what point a party should have 

reasonably discovered its claim is a fact-intensive inquiry that 

precludes judgment as a matter of law in all but the clearest of 

cases.” Id. (quotation simplified).

¶35 This is not one of those rare cases in which the defendant 

was entitled to judgment as a matter of law. Bodell presented 

sufficient evidence to support a finding that it did not reasonably 

discover its fraud claims until after it learned of the McGillis 

Litigation from Thurston’s initial disclosures. Bodell’s 

representative testified that he first discovered the facts 

underlying the fraud claims by reviewing the transcripts of the 

McGillis Litigation. Specifically, he learned that Thurston had 

not invested his own cash equity in the 310 Townsend Project 

but instead had funded his investment by borrowing money 

from McGillis, that Thurston knew that the 310 Townsend 

Project was experiencing cost overruns and delays in obtaining 

permits and had cited those problems as justification for an 

extension on the McGillis loan, and that Thurston needed $1.2 

million to secure the extension when he approached Bodell 

about investing. Based on this evidence, the jury could have 

reasonably concluded that until Bodell learned of these facts 

from the McGillis Litigation, Bodell could not have reasonably 

discovered that Thurston had concealed and misrepresented 

these facts to induce the investment.

¶36 Thurston maintains that Bodell’s admission that, “by 

2007, [it] had determined that the project was not as represented 

to [it] by Thurston” placed it on notice that it had some type 

of claim for misrepresentation. Thurston argues that, “[w]hile 
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Bodell might not have known all of the alleged 

misrepresentations, or whether they were intentional or not, 

it knew that it had a potential claim—hence the demand 

for return of funds.” But Bodell’s discovery that the 310 

Townsend Project was not as represented did not necessarily 

put it on notice that it had a claim against Thurston. Bodell’s 

representative testified that Thurston denied prior knowledge 

of the problems and claimed that he had also been misled. In 

fact, Bodell’s representative testified that he continued to work 

with Thurston because Thurston led him to believe that 

they were “on the same side” and had both been similarly 

wronged. Based on this evidence, the jury could have reasonably 

concluded that Bodell had no basis to question Thurston’s 

representation or to suspect him of any wrongdoing until 

Bodell learned from the McGillis Litigation transcripts that 

Thurston had cited the permit problems and cash overruns as 

justification to extend the McGillis loan before approaching 

Bodell to invest.

¶37 The facts of this case were susceptible to different 

interpretations that precluded judgment as a matter of law 

on whether the discovery rule tolled the statute of limitations 

for fraud. The district court properly submitted to the jury

the factual question of when Bodell should have reasonably 

discovered the basis for its claims. Accordingly, we affirm 

the denial of Thurston’s motion for a directed verdict.5

III. Punitive Damages

¶38 Thurston contends that the punitive damages award 

violates due process because the award was designed to punish 

Thurston for his actions toward McGillis, a nonparty, rather than 

for his actions toward Bodell. Thurston argues that there was a 

 

5. To the extent Thurston also challenges the district court’s 

denial of its motion for judgment notwithstanding the verdict, 

we affirm that ruling for the same reasons.
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“steady drumbeat throughout trial regarding Thurston lying to 

Mr. McGillis, abusing Mr. McGillis, [and] getting rich off of Mr. 

McGillis,” which “could not have been ignored by the jury.” 

Thurston contends that because the district court did not protect 

him against the risk that the jury would punish him for the 

alleged injury inflicted upon McGillis, “the award of punitive 

damages cannot stand and a new trial must be granted.”

¶39 Under Utah law, a jury may award punitive damages if it 

awards compensatory damages and finds “by clear and 

convincing evidence that the acts or omissions of the tortfeasor 

are the result of willful and malicious or intentionally fraudulent 

conduct, or conduct that manifests a knowing and reckless 

indifference toward, and a disregard of, the rights of others.” 

Utah Code Ann. § 78B-8-201(1)(a) (LexisNexis 2012) (emphasis 

added). In finding by clear and convincing evidence that 

Thurston committed fraud on Bodell, the jury necessarily made a 

finding of intentionally fraudulent conduct sufficient to support 

an award of punitive damages. But, to satisfy due process, such 

an award must relate to the harm Bodell suffered and cannot be 

used to punish Thurston for harm caused to others.

¶40 In Philip Morris USA v. Williams, 549 U.S. 346 (2007), the 

United States Supreme Court held that allowing punitive 

damage awards to punish a defendant for injury inflicted on a 

nonparty would violate procedural due process. Id. at 356–57. 

The Court clarified that the jury is allowed to consider harm to 

others in determining the reprehensibility of the defendant’s 

conduct, but “a jury may not go further than this and use a 

punitive damages verdict to punish a defendant directly on 

account of harms it is alleged to have visited on nonparties.” Id.

at 355. Where the risk of jury confusion is significant, “a court, 

upon request, must protect against that risk.” Id. at 357. While 

the Supreme Court allowed the states “some flexibility to 

determine what kind of procedures they will implement, federal 

constitutional law obligates them to provide some form of 

protection in appropriate cases.” Id.
Bodell Construction Company v. First Interstate Financial

20160855-CA 18 2018 UT App 199

¶41 In response to Philip Morris, the Utah Supreme Court 

modified its long-standing rules on punitive damages. See

Westgate Resorts, Ltd. v. Consumer Prot. Group, LLC, 2012 UT 55, 

¶¶ 13–14, 285 P.3d 1219. Previously, in Crookston v. Fire Insurance 

Exchange, 817 P.2d 789 (Utah 1991), the court had articulated 

factors to be considered in assessing punitive damages. Id. at 

808. Relevant here, the fourth Crookston factor was “the effect [of 

the alleged misconduct] on the lives of the plaintiff and others.” 

Westgate Resorts, 2012 UT 55, ¶ 13 (quotation simplified). The 

Westgate court held that this factor “must be modified to be 

constitutionally accurate,” by clarifying that harm to others 

“may only be used to assess reprehensibility,” not “to directly 

punish a defendant for harm caused to nonparties.” Id. ¶¶ 14, 23. 

To implement that decision, our supreme court directed that 

“[j]ury instructions should now include an explanation that 

‘harm to others’ may be considered for reprehensibility only, 

and not for punishment.” Id. ¶ 23.

¶42 In accordance with Philip Morris and Westgate Resorts, the 

jury instructions in this case protected against the risk that the 

jury would improperly award punitive damages to punish 

Thurston for harm allegedly caused to McGillis. Thurston 

proposed the punitive damages instructions that were given to 

the jury. Those instructions specifically advised the jury that the 

amount of punitive damages “must bear some relationship to 

Plaintiff’s harm.” The exclusive list of factors that the jury was 

allowed to consider in determining the amount of punitive 

damages omitted any reference to “harm to others.” Instead, the 

fourth Crookston factor was limited to “the effects of the 

Defendant’s conduct on the Plaintiff.” By entirely eliminating 

“harm to others” as a permissible consideration, the instructions 

protected against any confusion regarding the permissible use of 

that factor.

¶43 Thurston does not address how the jury instructions were 

inadequate to “protect against the risk that the jury might 

improperly consider harm to McGillis in deciding to award 

punitive damages.” The court did not explicitly instruct the jury 
Bodell Construction Company v. First Interstate Financial

20160855-CA 19 2018 UT App 199

that it could not punish Thurston for harm he caused to others. 

But, unlike the defendant in Philip Morris, Thurston did not 

request such an instruction. 549 U.S. at 356; see also Westgate 

Resorts, 2012 UT 55, ¶ 22 (holding that “an objection lodged with 

a trial court based on a plaintiff’s suggestion that the jury 

calculate punitive damages by assessing the damage caused to 

nonparties suffices to serve as a ‘request’ under Philip Morris”). 

In the absence of such a request, there was no need for the court 

to go beyond the law as correctly stated in the jury instructions 

Thurston proposed.

¶44 There was no significant risk that the jury based the 

punitive damages award on the harm Thurston allegedly caused 

McGillis. Because Thurston failed to establish a procedural due 

process claim, the court acted within its discretion in denying his 

motion for a new trial.

CONCLUSION

¶45 Thurston has failed to establish any error in the district 

court’s evidentiary rulings or in its denial of his motion for a 

directed verdict. He has also failed to show a significant risk that 

the jury improperly based its punitive damages award on harm 

Thurston allegedly caused against a nonparty. Accordingly, we 

affirm the judgment.