Mower v. Simpson , 278 P.3d 1076 ( 2012 )


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  •                         IN THE UTAH COURT OF APPEALS
    ‐‐‐‐ooOoo‐‐‐‐
    Leslie D. Mower; LD SQ, LLC; LD III,        )               OPINION
    LLC; LD Purpose, LLC; and Navona,           )
    LC,                                         )          Case No. 20100532‐CA
    )
    Plaintiffs and Appellants,            )
    )               FILED
    v.                                          )             (May 17, 2012)
    )
    David R. Simpson; Nathan R. Simpson;        )            
    2012 UT App 149
    Michael K. Thompson; Todd Dorny;            )
    Brandon Dente; David N. Nemelka;            )
    Dallas M. Hakes; Chad D. Carlson;           )
    Michael A. Marx; Allen R. Hakes;            )
    Michael W. Aviano; ALS Properties,          )
    LLC; Mai Ke Kula, LLC; Hanalei Kai          )
    Holdings, LLC; Ka Mahina, LLC; He           )
    Kiakolu, LLC; Koamalu Plantation, LLC;      )
    Landmark Real Estate, Inc.; Wood            )
    Springs, LLC; Oak Leaf, LLC; Dente,         )
    LLC; Sunny Ridge, LLC; KNDJ                 )
    Development, LLC; DN Simpson                )
    Holdings, LLC; SOS Mapleton                 )
    Development, LLC; DN Simpson                )
    Mapleton Holdings, LLC; The Preserve        )
    at Mapleton Development Company,            )
    LLC; Pheasant Meadows, LLC;                 )
    Carnesecca Orchard Estates, LLC;            )
    Spanish Vista Plat I, LLC; Landmark         )
    Homes of Utah, LLC; Maple Mountain          )
    Water Tank, LLC; Lonestar Gutters,          )
    LLC; 2 Brothers Communications; and         )
    Lonestar Builders, Inc.,                    )
    )
    Defendants and Appellees.             )
    ‐‐‐‐‐
    Fourth District, Provo Department, 090403844
    The Honorable Samuel D. McVey
    Attorneys:      Bart J. Bailey and William T. Jennings, Orem; and Denver C. Snuffer Jr.,
    Sandy, for Appellants
    Caleb J. Frischknecht, Salt Lake City; Craig Carlile; Provo; and Mark D.
    Eddy and Morgan L. Cummings, Pleasant Grove, for Appellees
    ‐‐‐‐‐
    Before Judges Orme, Thorne, and Roth.
    THORNE, Judge:
    ¶1      Leslie D. Mower; LD SQ, LLC; LD III, LLC; LD Purpose, LLC; and Navona, LC
    (collectively, Plaintiffs) bring this interlocutory appeal challenging the district court’s
    dismissal of several of their numerous causes of action against David R. Simpson and
    his codefendants (collectively, Defendants). Specifically, Plaintiffs argue that the district
    court erred in dismissing their fraud and fraud‐based claims for failure to plead them
    with particularity; erred in dismissing their fraud claims after determining that
    Mower’s deceased husband, Ken Dolezsar, was a necessary and indispensable party to
    those claims; and erred in dismissing their claims alleging aiding and abetting a breach
    of fiduciary duty on the ground that Utah law does not recognize such a cause of action.
    We reverse the district court and remand this matter for further proceedings consistent
    with this opinion.
    BACKGROUND
    ¶2     Plaintiffs filed their initial Complaint in this matter on October 20, 2009. The
    Complaint was 212 pages long, asserted twenty‐six claims against multiple defendants
    in 701 numbered paragraphs, and was supported by 183 exhibits comprising an
    additional 1100‐some pages of material. Many of the paragraphs in the individual
    causes of action referred to specific earlier paragraphs in the factual section of the
    20100532‐CA                                  2
    Complaint.1 The Complaint alleged fraud and other claims arising out of the
    development and funding of various real estate projects in Hawaii and Utah. In
    November 2009, after several defendants had filed motions to dismiss, Plaintiffs filed a
    First Amended Complaint spanning 216 pages and asserting twenty‐eight claims in 713
    numbered paragraphs. The First Amended Complaint prompted several more motions
    to dismiss.
    ¶3      On January 22, 2010, the district court dismissed Plaintiffs’ fraud claims for
    failure to plead them with particularity. In regard to the fraud claims, the district court
    stated,
    [T]hey do not contain the required level of
    particularity—who in particular said or represented what to
    whom in particular, when, where, and how such
    representations occurred, the specific terminology used, why
    reliance was reasonable and what particular damages were
    caused by each discrete action. Defendants are entitled to
    know the precise events on which plaintiffs rely without
    having to infer what happened through assembling pieces of
    a puzzle contained throughout a voluminous complaint.
    The district court then granted Plaintiffs twenty days in which to plead their fraud
    claims “concisely and with particularity.” On March 5, 2010, Plaintiffs filed a 361‐page
    Second Amended Complaint asserting forty‐eight claims over 1362 numbered
    paragraphs and continuing Plaintiffs’ previous convention of stating claims by
    reference to prior paragraphs. The Second Amended Complaint resulted in yet another
    wave of motions to dismiss.
    ¶4     In June 2010, the district court issued two written rulings on the various motions
    to dismiss. The effects of these two rulings included the dismissal of Plaintiffs’ fraud
    1
    For example, in the Complaint’s first fraud claim, Plaintiffs alleged in paragraph
    541 that certain defendants had made intentional false “promises and representations,
    as described in paragraphs 83, 256, 314, 315, 316, 357, 434 and elsewhere in this
    Complaint.”
    20100532‐CA                                  3
    and fraud‐based claims for failure to plead them concisely and with particularity. The
    district court explained,
    Despite Plaintiffs’ addition of 145 more pages, the Second
    Amended Complaint still does not provide the particularity
    mandated by Rule 9(b). Instead, Plaintiffs’ “much too long
    and involved” Second Amended Complaint merely “dumps
    upon the [Court] . . . the burden of sifting through the
    hundreds of paragraphs of alleged facts to ascertain whether
    Plaintiffs have allege[d] . . . , the facts necessary to make all
    their elements of fraud.”
    (Alterations and omissions in original.) (Quoting Coroles v. Sabey, 
    2003 UT App 339
    ,
    ¶¶ 23, 27, 
    79 P.3d 974
    .) The district court also dismissed Plaintiffs’ fraud claims
    pursuant to rule 19 of the Utah Rules of Civil Procedure, ruling that Mower’s deceased
    husband was a necessary and indispensable party to those claims. Finally, the district
    court dismissed Plaintiffs’ claims for aiding and abetting a breach of fiduciary duty and
    aiding and abetting fraudulent nondisclosure, reasoning that Utah law does not
    recognize these causes of action. Plaintiffs sought and received permission to bring this
    interlocutory appeal from the district court’s dismissal orders.
    ISSUES AND STANDARDS OF REVIEW
    ¶5     Plaintiffs first argue that the district court erred when it dismissed their fraud
    and fraud‐based claims for failure to plead them with particularity. “‘Because the
    propriety of a motion to dismiss is a question of law, we review for correctness, giving
    no deference to the decision of the trial court.’” Coroles v. Sabey, 
    2003 UT App 339
    , ¶ 15,
    
    79 P.3d 974
     (quoting Krouse v. Bower, 
    2001 UT 28
    , ¶ 2, 
    20 P.3d 895
    ).
    ¶6     Next, Plaintiffs argue that the district court erred when it dismissed their fraud
    claims based on its determination that Mower’s deceased husband was a necessary and
    indispensable party to those claims. “[A] trial court’s determination properly entered
    under Rule 19[, which governs the joinder of indispensable parties,] will not be
    disturbed absent an abuse of discretion.” Werner‐Jacobsen v. Bednarik, 
    946 P.2d 744
    , 746
    (Utah Ct. App. 1997) (first alteration in original) (internal quotation marks omitted).
    20100532‐CA                                   4
    ¶7      Finally, Plaintiffs argue that Utah law recognizes causes of action for aiding and
    abetting the breach of a fiduciary duty and aiding and abetting fraudulent
    nondisclosure. Whether a cause of action is recognized in Utah is a question of law, and
    we therefore review the district court’s ruling on this issue for correctness. See Jacob v.
    Bezzant, 
    2009 UT 37
    , ¶ 18, 
    212 P.3d 535
     (“We review these rulings under a correctness
    standard because whether a particular array of allegations set[s] out a cognizable cause
    of action is purely a question of law.”).
    ANALYSIS
    I. Adequacy of Pleading of Fraud Claims
    ¶8      Plaintiffs argue that the district court erred in dismissing their fraud and fraud‐
    based claims for failure to plead them with particularity. Reading the district court’s
    January 2010 and June 2010 rulings together, we can ascertain three grounds for the
    district court’s ultimate dismissal of Plaintiffs’ fraud and fraud‐based claims: (1)
    Plaintiffs failed to state their claims with the required level of particularity; (2)
    notwithstanding this lack of particularity, Plaintiffs’ Second Amended Complaint was
    too long and involved; and (3) Plaintiffs employed internal cross‐referencing of
    paragraphs in the Second Amended Complaint rather than repeating every factual
    allegation in every claim. We conclude that the district court’s dismissal of Plaintiffs’
    fraud and fraud‐based claims on these grounds constitutes error.
    A. The Second Amended Complaint’s Length and Complexity
    ¶9      We first address the district court’s concerns about the length and complexity of
    the Second Amended Complaint, as well as Plaintiff’s cross‐referencing of paragraphs
    within the Second Amended Complaint. In finding fault with Plaintiffs on these
    grounds, the district court appears to have relied primarily on Coroles v. Sabey, 
    2003 UT App 339
    , 
    79 P.3d 974
    . Coroles states that rule 9(b) of the Utah Rules of Civil Procedure
    imposes a “basic and fundamental requirement” of “clarity and conciseness.” See 
    id. ¶ 23
    ; see also Utah R. Civ. P. 9(b). The reasons for this requirement are to ensure
    “that the essential facts upon which redress is sought be set
    forth with simplicity, brevity, clarity and certainty so that it
    can be determined whether there exists a legal basis for the
    20100532‐CA                                   5
    relief claimed; and, if so, so that there will be a clearly
    defined foundation upon which further proceedings by way
    of responsive pleadings and/or trial can go forward in an
    orderly manner.”
    Coroles, 
    2003 UT App 339
    , ¶ 23 (quoting Heathman v. Hatch, 
    13 Utah 2d 266
    , 
    372 P.2d 990
    , 992 (1962)).
    ¶10 Coroles also determined that the particulars necessary to plead a claim of fraud
    may not generally be supplied merely by incorporating all preceding factual allegations
    into a fraud claim. See 
    id. ¶¶ 25
    –27. In Coroles, the plaintiffs attempted to plead a
    common law fraud claim with no specific factual allegations besides the bare
    incorporation of 660 preceding paragraphs. See 
    id. ¶ 25
    . In light of the burdens that this
    method of pleading placed on the district court, we rejected it as “unacceptable.” See 
    id. ¶ 27
    .
    ¶11 In the present case, despite the substantial length and complexity of the Second
    Amended Complaint, we are not convinced that it is automatically too long or involved
    in light of the number and complexity of Plaintiffs’ claims. Coroles recognized that
    “[w]hether a complaint is ‘much too long and involved’ is . . . dependent upon the
    complexity of each individual case.” 
    Id. ¶ 23 n.11
    . Here, as described in Plaintiffs’
    appellate brief, the Second Amended Complaint “detail[s] five major theaters of activity
    where fraudulent acts occurred, [and names] thirty‐five primary defendants, involved
    in various fraudulent acts described in twenty‐one causes of action relating to
    fraudulent activity.”
    ¶12 Assuming that all such claims and defendants are properly joined together in
    this single action—a question that is not before us in this interlocutory appeal—it is to
    be expected that the Second Amended Complaint would be much longer and more
    involved than the typical civil complaint. The legal question before us is whether it is
    too long as a matter of law in light of the number and complexity of Plaintiffs’ claims.
    We determine that it is not. Coroles makes clear that there is no per se rule as to the
    maximum length of pleadings. See 
    2003 UT App 339
    , ¶ 23 n.11 (“[W]e do not mean to
    imply that all complaints consisting of thirty‐three or more pages are necessarily ‘much
    too long and involved,’ nor do we believe that the Utah Supreme Court intended to
    create such a per se rule . . . .” (citation omitted)). Here, Plaintiffs allege an amazingly
    complex series of frauds against numerous defendants. In light of the number and
    20100532‐CA                                  6
    complexity of Plaintiffs’ claims, we cannot say as a matter of law that the Second
    Amended Complaint is too long or involved.2 See 
    id. ¶13
     Our holding that the Second Amended Complaint is not too long as a legal matter
    should not be confused with a determination that it is not too long as a practical matter.
    Pleadings of such enormous length place great burdens on the courts and defendants
    alike. We emphasize that our holding that the Second Amended Complaint is not so
    long as to justify its dismissal is not intended in any way to limit the district court’s
    considerable discretion to manage its own docket and caseload. See, e.g., Welsh v.
    Hospital Corp. of Utah, 
    2010 UT App 171
    , ¶ 9, 
    235 P.3d 791
     (“Trial courts have broad
    discretion in managing the cases assigned to their courts.” (internal quotation marks
    omitted)). To that end, we note that the district court retains the authority and
    discretion to take reasonable steps to make this case more manageable for everyone
    involved. Such steps could include requiring Plaintiffs to shorten their complaint, so
    long as they are allowed to plead their claims with the required degree of particularity.
    ¶14 As to Plaintiffs’ use of internal cross‐referencing, the pleading methods
    employed in the Second Amended Complaint are readily distinguishable from the
    technique that the Coroles court deemed to be unacceptable. In Coroles, this court
    described the plaintiffs’ fraud pleading as follows:
    The section of the complaint that is devoted to common law
    fraud consists of eleven paragraphs. The first of these
    paragraphs, paragraph 661 of the complaint, simply reads:
    “The foregoing paragraphs numbered 1–660 are
    incorporated into this Count.” The remaining ten
    paragraphs of this section merely recite the elements of
    2
    We stress that Plaintiffs allege an extraordinarily complex series of frauds in this
    case and that pleadings of such enormous length—or even a fraction thereof—are
    appropriate in only the rarest of cases. Dismissal of overlength complaints remains a
    completely appropriate option when a carefully reasoned analysis demonstrates that a
    particular complaint, or portion thereof, is indeed “much too long and involved” under
    the circumstances. See Coroles v. Sabey, 
    2003 UT App 339
    , ¶ 23 n.11, 
    79 P.3d 974
     (internal
    quotation marks omitted).
    20100532‐CA                                  7
    fraud and allege that [the d]efendants committed each
    element.
    Coroles v. Sabey, 
    2003 UT App 339
    , ¶ 25, 
    79 P.3d 974
    . The court determined that the bulk
    citation to all preceding paragraphs was an “unacceptable” approach to meeting the
    pleading requirements, “especially in a complaint of such enormous length,” as it
    “essentially dumps upon the trial court, and now upon this court, the burden of sifting
    through the hundreds of paragraphs of alleged facts” to determine whether a claim has
    been adequately pleaded. See 
    id. ¶¶ 26
    –27.
    ¶15 By contrast, the Second Amended Complaint does not rely exclusively on the
    bulk incorporation of preceding paragraphs to make its claims but rather links those
    claims to specific, identifiable facts. Per longstanding practice, each of Plaintiffs’ claims
    does begin with a paragraph incorporating all prior paragraphs. See generally 
    id. ¶ 27 n.13
     (acknowledging that “it is very routine for plaintiffs to incorporate preceding
    paragraphs into the various counts of their complaints”). However, Plaintiffs have gone
    much further by way of identifying the factual allegations in support of each of their
    claims. A typical supporting paragraph from one of Plaintiffs’ fraud claims contains
    both a summary of the factual allegation contained therein and a citation to one or more
    specific prior paragraphs containing the underlying facts in greater detail.3
    ¶16 This specific cross‐referencing of relevant paragraphs does not violate the
    pleading principle set forth in Coroles, which seems to have expressly foreseen and
    approved such a method of pleading. See 
    id.
     As explained in Coroles,
    due to the enormous length and lack of conciseness in [the
    plaintiffs’] description of the facts of this case, it was
    incumbent upon [the plaintiffs] to do more than simply refer
    the trial court to all 660 of the paragraphs preceding the
    discussion of their common law fraud claim. At a minimum,
    3
    For example, in paragraph 539 of the Second Amended Complaint, in support of
    Plaintiffs’ first cause of action for fraud, Plaintiffs state, “As described in paragraph 74
    herein, Michael Thompson told Todd Dorny about the scheme and recruited Dorny to
    participate, on the condition that Dorny would find a wealthy investor to fund the
    multiple conveyances of the real property[.]”
    20100532‐CA                                  8
    they should have listed specific paragraphs from their facts
    section that supported each element of their common law
    fraud claim.
    
    Id.
     (emphasis added). Further, contrary to the district court’s reasoning in the present
    case, Coroles indicated that the cross‐referencing of specific paragraphs does not place
    any undue burden on the reviewing court,4 particularly where the cross‐referenced
    factual allegations are also summarized. See 
    id.
     (“By [cross‐referencing specific
    paragraphs, the plaintiffs] would have spared the courts the burden, identified in the
    text above, of sifting through the hundreds of paragraphs of the complaint to verify that
    they alleged facts supporting each element of their claim.” (emphasis added)). Plaintiffs
    went considerably further than the minimum required by Coroles, as they not only listed
    “specific paragraphs from their facts section that supported each element of their
    common law fraud claim,” 
    id.,
     but also accompanied each cross‐reference with a short,
    clear summary of what would be found there.
    ¶17 We acknowledge the unusual length and complexity of the Second Amended
    Complaint, and we reiterate Coroles’s sage advice warning against “equating
    ‘particularity’ with unnecessary detail, if not minutia.” See 
    id. ¶ 23 n.11
    . But we also
    recognize the tension between the competing requirements of pleading fraud “‘with
    particularity’” and doing so with “clarity and conciseness,” see 
    id. ¶¶ 21
    –23. This
    tension is aggravated in this case by the large number of claims and defendants and the
    breadth of the factual allegations underlying those claims.5 In light of Coroles’s approval
    4
    And, of course, Plaintiffs are correct when they argue that avoiding cross‐
    referencing by repeating every factual allegation in every claim would create yet
    another problem—much greater overall length of a document that already exceeds 360
    pages.
    5
    We observe that the district court imposed conflicting obligations on Plaintiffs
    when it dismissed the fraud claims contained in their First Amended Complaint. In
    regard to those claims, the district court stated that the already voluminous First
    Amended Complaint was nevertheless insufficiently particular and failed to inform
    Defendants “who in particular said or represented what to whom in particular, when,
    where, and how such representations occurred, the specific terminology used, why
    reliance was reasonable and what particular damages were caused by each discrete
    20100532‐CA                                  9
    of specific internal cross‐referencing, the number and complexity of Plaintiffs’ claims,
    and our conclusion that the Second Amended Complaint is not as a matter of law
    “much too long and involved” under the circumstances, we determine that the district
    court erred in relying on the raw length of the Second Amended Complaint and
    Plaintiffs’ use of specific cross‐referencing as grounds to dismiss Plaintiffs’ fraud and
    fraud‐based claims. However, as to measures short of dismissal, we reaffirm the
    district court’s discretion to manage its docket and ensure that the cases before it are
    litigated with efficiency and in such a manner as to not place undue burdens on parties
    or the courts.
    B. The Second Amended Complaint’s Particularity
    ¶18 Having determined that Plaintiffs’ use of specific cross‐referencing is an
    acceptable pleading method, we turn to the question of whether Plaintiffs’ fraud and
    fraud‐based claims are stated with sufficient particularity when Plaintiffs’ cross‐
    referenced paragraphs are properly considered in support of those claims. The
    adequacy of a complaint presents a question of law that we review for correctness,
    giving the district court’s decision no deference. See Sullivan v. Sullivan, 
    2004 UT App 485
    , ¶ 5, 
    105 P.3d 963
     (“Review of a grant of a motion to dismiss presents questions of
    law that we review for correctness, giving no deference to the decision of the [district]
    court.” (internal quotation marks omitted)). Thus, we would ordinarily conduct our
    own review of Plaintiffs’ claims for adequate particularity.
    ¶19 However, due to its incorrect cross‐reference ruling, the district court never fully
    analyzed the particularity of Plaintiffs’ fraud claims on a claim‐by‐claim basis. Nor
    have the parties provided us with such a claim‐by‐claim analysis in their briefing on
    appeal. Moreover, this appeal is before us on an interlocutory basis and the case is
    subject to further development on remand. In light of these considerations, we decline
    to undertake a claim‐by‐claim analysis of the fraud and fraud‐based claims contained in
    the Second Amended Complaint. Rather, we leave that task in the first instance to the
    district court, with the assistance of the parties, on remand.
    5
    (...continued)
    action.”
    20100532‐CA                                 10
    ¶20 Nevertheless, even a cursory review of those claims suggests that many, if not
    all, of them have been adequately pleaded. To “bring a claim sounding in fraud,” a
    party must allege the following elements:
    (1) that a representation was made (2) concerning a presently
    existing material fact (3) which was false and (4) which the
    representor either (a) knew to be false or (b) made recklessly,
    knowing that there was insufficient knowledge upon which
    to base such a representation, (5) for the purpose of inducing
    the other party to act upon it and (6) that the other party,
    acting reasonably and in ignorance of its falsity, (7) did in
    fact rely upon it (8) and was thereby induced to act (9) to
    that party’s injury and damage.
    Armed Forces Ins. Exch. v. Harrison, 
    2003 UT 14
    , ¶ 16, 
    70 P.3d 35
     (internal quotation
    marks omitted). As stated above, we decline to analyze each of Plaintiffs’ fraud claims
    against this pleading standard. However, we will analyze one of Plaintiffs’ claims as an
    example and illustration of the pleading standard at issue in this case.
    ¶21 Plaintiffs’ first fraud claim is their very first cause of action, commencing at
    paragraph 537 on page 178 of the Second Amended Complaint. This cause of action
    alleges fraud and intentional misrepresentation against five individuals—David
    Simpson, Nathan Simpson, Michael Thompson, Todd Dorny, and Brandon Dente—and
    multiple business entities associated with them. According to Plaintiffs’ allegations,
    Thompson devised a plan to skim funds from a wealthy investor in a fraudulent real
    property development scheme. The scheme involved multiple conveyances of the real
    property and the taking of management and consulting fees by Thompson and others.
    Thompson recruited Dorny to locate a victim for the scheme, and to this end Dorny
    contacted Dente, who in turn contacted David Simpson. Thompson then
    communicated with both of the Simpsons, either directly or through Dorny and Dente,
    and instructed them to make certain representations to Ken Dolezsar, who Thompson
    and the Simpsons knew was Leslie Mower’s agent.
    ¶22 Communicating through Dolezsar, Thompson and the Simpsons are alleged to
    have made the following statements of presently existing fact and intent to Mower, as
    described in paragraph 83 of the Second Amended Complaint:
    20100532‐CA                                 11
    a. That the Koamalu Plantation development project was a
    very unique and tremendously profitable real estate
    investment opportunity that required an immediate
    investment or the opportunity would be offered to another
    investor;
    b. That the Koamalu Plantation development project
    involved 11 acres, near the beach, on the Island of Kauai in
    Hawaii;
    c. That the project was zoned to allow construction of 20
    condominium units per acre—or approximately 220
    condominium units plus common area club houses,
    swimming pools, etc.;
    d. That only $5,000,000.00 was needed to acquire the land
    and do the preliminary development work, because all
    construction costs would be totally funded with proceeds
    from condominium pre‐sales;
    e. That condominium pre‐sales would start in four to six
    months;
    f. That there was a huge demand for vacation housing in
    Kauai so the condominium units would sell quickly;
    g. That the project would be completed and sold out in less
    than three years—probably in less than two years;
    h. That the Koamalu Plantation development project
    included a seasoned contractor and developer [(Thompson)]
    and his partner/associate [(Dorny)] who had built and sold
    hundreds of condominiums in Kauai;
    i. That [Mower] would get all of her $5,000,000.00 back,
    plus, a profit of $10,000,000.00 (200%) on her investment if
    she was willing to invest immediately; and,
    j. That [Mower’s] investment would be secure because she
    would own the real property until the condominium units
    were built and sold.
    Plaintiffs then allege, in paragraph 545, that these representations were false in the
    following respects:
    20100532‐CA                                 12
    a. The Koamalu Plantation development project was not
    unique and as designed could never be profitable;
    b. The Koamalu Plantation development project was not
    near the beach and would only have approximately 8 acres
    of real property left after the State of Hawaii took
    approximately 3 acres to widen the highway;
    c. The construction costs could not be paid from pre‐sales of
    condominium units because of the thirty percent (30%)
    affordable housing requirement imposed by Kauaii County;
    d. More than $5,000,000.00 was needed to acquire the land
    and do the preliminary development work;
    e. They could not get the needed permits and work
    performed to pre‐sell condominiums within four to six
    months;
    f. Any demand for vacation housing was not related to the
    condominiums because they were not designed, nor could
    they be sold, as vacation homes. Rather, they were homes
    for permanent residents of Kauai;
    g. The project could not be completed and sold out in less
    than three years;
    h. Michael Thompson and Todd Dorny had not built and
    sold hundreds of condominiums in Kauai;
    i. It was impossible for [Mower] to get her $5,000,000.00
    back plus a profit of $10,000,000.00 on her investment; and
    j. Michael Thompson, David Simpson, Nathan Simpson,
    Todd Dorny and Brandon Dente never intended for [Mower]
    to own the real property.
    Plaintiffs also allege the existence of an email, attributed to Thompson, that was
    communicated to Mower through Dorny, David Simpson, and Dolezsar. Plaintiffs
    identify several allegedly false statements in the email, similar to those listed above.
    ¶23 Plaintiffs further allege that Thompson and the others knew that these
    representations were false or made them recklessly, knowing that there was insufficient
    knowledge upon which to base such representations, and made the representations for
    the purpose of inducing Plaintiffs to invest in the scheme. Plaintiffs allege that they had
    no reason to know of the falsity of the representations and that they invested in
    20100532‐CA                                  13
    reasonable reliance on the representations. According to Plaintiffs, Thompson then
    funded multiple real property conveyances, identified in the Second Amended
    Complaint, with Plaintiffs’ investment moneys. Thompson skimmed funds from these
    conveyances as management and consulting fees, resulting in a loss to Plaintiffs of
    $7,186,139.41. Plaintiffs also allege the intermingling of the named individual
    defendants’ affairs with those of their respective business entities, so as to allege joint
    and several liability for the individuals and the business entities.
    ¶24 We determine that the totality of the allegations incorporated into Plaintiffs’ first
    cause of action more than adequately pleads a claim for fraud. Plaintiffs describe a
    fraudulent development scheme, identify specific false representations of presently
    existing fact made to induce Plaintiffs to invest in that scheme, and state the resulting
    reliance of and losses to Plaintiffs. Plaintiffs also allege the various intents, purposes,
    and states of mind of both themselves and Defendants that are required to state a fraud
    claim. Read as a whole, Plaintiffs’ first cause of action for fraud sets forth “[t]he
    relevant surrounding facts . . . with sufficient particularity to show what facts are
    claimed to constitute [the claim],” Armed Forces Ins. Exch. v. Harrison, 
    2003 UT 14
    , ¶ 16,
    
    70 P.3d 35
     (internal quotation marks omitted).
    ¶25 Whether Defendants can ultimately establish one or more pleading defects in any
    of Plaintiffs’ other claims is a question we leave to the district court on remand, and we
    do not intend this opinion to foreclose Defendants’ opportunity to make such a
    showing. However, the dismissal of any particular claim should not occur without an
    analysis of the claim as a whole, including the supporting paragraphs specifically cross‐
    referenced by Plaintiffs. We therefore reverse the district court’s order of dismissal and
    remand the matter for consideration of Defendants’ various motions to dismiss under
    the principles announced herein.
    II. Dolezsar as a Necessary and Indispensable Party
    ¶26 Plaintiffs next challenge the district court’s dismissal of their fraud claims for
    failure to join Mower’s deceased husband, Ken Dolezsar, as a party. The district court
    agreed with Defendants that Dolezsar was a necessary and indispensable party to those
    claims. Accordingly, the district court ruled that joinder of Dolezsar was mandatory
    20100532‐CA                                  14
    and that Plaintiffs’ fraud claims could not proceed in the absence of Doleszar or his
    estate.6
    ¶27 The mandatory joinder of parties is governed by rule 19 of the Utah Rules of
    Civil Procedure. See Utah R. Civ. P. 19. “Under rule 19, a court must engage in a two‐
    part inquiry.” Turville v. J & J Props., LC, 
    2006 UT App 305
    , ¶ 36, 
    145 P.3d 1146
    . “First,
    the court must ascertain whether a party has sufficient interest in the action to make it a
    necessary party.” 
    Id.
     (internal quotation marks omitted). “Second, if the court indeed
    deems the party necessary to the action, and joinder is unfeasible, the court must then
    determine whether the party is indispensable.” 
    Id. ¶ 37
    . “The burden of presenting
    specific facts and reasoning that lead to the conclusion that a party is a necessary or
    indispensable party is on the party attempting to persuade the court that parties are
    necessary.” Jennings Inv., LC v. Dixie Riding Club, Inc., 
    2009 UT App 119
    , ¶ 38, 
    208 P.3d 1077
    .
    ¶28 Both “necessary” and “indispensable” are further defined by multi‐factor tests.
    A party is necessary to an action if the party’s joinder will not deprive the court of its
    subject matter jurisdiction and
    “(1) in [the party’s] absence complete relief cannot be
    accorded among those already parties, or (2) [the party]
    claims an interest relating to the subject of the action and is
    so situated that the disposition of the action in [the party’s]
    absence may (i) as a practical matter impair or impede [the
    party’s] ability to protect that interest or (ii) leave any of the
    persons already parties subject to a substantial risk of
    incurring double, multiple, or otherwise inconsistent
    obligations by reason of [the party’s] claimed interest.”
    Turville, 
    2006 UT App 305
    , ¶ 36 (alterations in original) (quoting Utah R. Civ. P.
    19(a)(1)–(2)). The indispensability of a party is then determined by examining
    (1) to what extent a judgment rendered in the [party’s]
    absence will prejudice [the party] or those already parties;
    6
    By the time the district court issued its ruling, the statute of limitations for
    bringing a claim against Doleszar’s estate had apparently expired.
    20100532‐CA                                   15
    (2) the likelihood of reducing or avoiding prejudice by
    protective measures or provisions in the judgment; (3) the
    adequacy of the judgment which might be entered in the
    [party’s] absence; and (4) the adequacy of the plaintiff’s
    remedy if the action is dismissed for nonjoinder.
    
    Id. ¶ 37
     (internal quotation marks omitted); see also Utah R. Civ. P. 19(b).
    ¶29 Here, the district court determined that Dolezsar was both necessary and
    indispensable. The district court deemed Dolezsar a necessary party because “the
    Second Amended Complaint alleges, at least in the alternative, [that] Dolezsar acted as
    more than a simple go‐between. He occupied a pivotal representative role in the
    alleged fraud.” The district court concluded that, in Dolezsar’s absence, complete relief
    would not be available to the existing parties because of the inability to hold Dolezsar
    accountable and that, accordingly, Dolezsar was a necessary party to Plaintiffs’ fraud
    claims. The district court concluded that Dolezsar was indispensable based on its
    findings that Defendants would be prejudiced by his absence; that this prejudice could
    be mitigated by dismissing Plaintiffs’ fraud claims; that a judgment rendered in
    Dolezsar’s absence would be inadequate because, among other reasons, Defendants
    could bring no cross‐claims against Dolezsar’s estate; and that Plaintiffs alleged several
    other claims against Defendants that “must suffice” to protect Plaintiffs’ interests.
    ¶30 Both the district court and the parties appear to have made their analyses of
    Dolezsar’s necessary and indispensable status based largely on a comparison between
    Dolezsar and the deceased defendant in Turville v. J & J Properties, LC, 
    2006 UT App 305
    ,
    
    145 P.3d 1146
    . Turville involved a piece of real property that was originally purchased
    by a limited liability company, Tri‐J. See 
    id. ¶ 2
    . John Clark, whose corporation CPI was
    a principal of Tri‐J, was alleged to have improperly transferred most of the property to
    CPI rather than to Tri‐J. See 
    id.
     Then, acting individually, Clark sold the property,
    including fourteen acres that remained in Tri‐J’s name, to Turville without Tri‐J’s
    consent. See 
    id. ¶ 4
    . Turville brought fraud and other claims against Tri‐J and its
    principals, including CPI and Clark, but Clark died before the matter could be litigated.
    See 
    id. ¶¶ 8
    –9. Once it became clear that Clark’s estate would not be joined in the
    litigation, see 
    id. ¶¶ 13
    –15, several of the remaining defendants sought to dismiss
    Turville’s complaint on the ground that Clark or his estate was a necessary and
    indispensable party, see 
    id. ¶ 17
    . The district court agreed and granted the motion to
    dismiss. See 
    id. ¶ 19
    .
    20100532‐CA                                 16
    ¶31 This court affirmed the district court’s decision. See 
    id. ¶¶ 36
    –42. In addition to
    the district court’s rationale that Clark was a necessary party because of the plaintiff’s
    “‘claims of alter ego and the alleged pivotal representative role Mr. Clark occupied in
    the transactions at issue,’” see 
    id. ¶ 39,
     this court reasoned that “it was primarily, if not
    solely, the actions of Mr. Clark in his individual capacity that led to [Turville’s] alleged
    damages,” 
    id. ¶ 40,
     and that Turville “named or included Mr. Clark in his claims as the
    major, if not the sole, actor responsible,” 
    id. ¶ 42
    . In light of Clark’s central and
    potentially exclusive role in Turville’s claim for damages, this court held that the district
    court had not abused its discretion in determining that Turville’s action could not
    proceed in Clark’s absence. See 
    id. ¶32
     In the present case, the district court determined that Plaintiffs’ Second Amended
    Complaint alleged, at least in the alternative, that Dolezsar occupied a “pivotal
    representational role in the alleged fraud.” However, we are unable to discern such a
    role for Dolezsar under any portion of the Second Amended Complaint that has been
    brought to our attention. Plaintiffs cite to paragraphs in the Second Amended
    Complaint suggesting that their primary argument is that Defendants used Dolezsar as
    an unwitting conduit to relay fraudulent communications between themselves and
    Plaintiffs. Plaintiffs also cite to other paragraphs that identify their alternative
    argument—that it was unknown to them whether Dolezsar was innocently duped by
    Defendants or had some complicity with them. Neither the district court nor
    Defendants point us to any portion of the Second Amended Complaint alleging that
    Dolezsar was the “major, if not the sole, actor responsible” for Plaintiffs damages, such
    as would render him analogous to Mr. Clark in Turville. See generally 
    2006 UT App 305
    ,
    ¶ 42.
    ¶33 Relying on the only portions of the voluminous Second Amended Complaint
    that have been identified as bearing on this issue, we determine that the district court
    exceeded its permitted discretion when it concluded that Plaintiffs’ claims rendered
    Dolezsar a necessary and indispensable party. Under Plaintiffs’ primary theory,
    Dolezsar is most accurately described as a fellow victim of Defendants’ alleged fraud.
    However, even under a broad reading of Plaintiffs’ alternative theory, Dolezsar might
    also become liable to Plaintiffs as a codefendant, but Defendants would remain the
    20100532‐CA                                  17
    primary bad actors with whom Dolezsar conspired.7 Neither theory renders Dolezsar
    the sole or major actor in Plaintiffs’ fraud claims. In light of the allegations contained in
    the Second Amended Complaint, we hold that Dolezsar’s actions are meaningfully
    distinguishable from the actions of Mr. Clark in Turville, and we reverse the district
    court’s ruling dismissing Plaintiffs’ fraud claims for failure to join Dolezsar or his estate
    as a necessary and indispensable party.8
    III. Claims for Aiding and Abetting Breach of Fiduciary Duty
    ¶34 Finally, Plaintiffs argue that the district court erred in concluding that Utah does
    not recognize causes of action for aiding and abetting the breach of a fiduciary duty and
    aiding and abetting fraudulent nondisclosure. As to aiding and abetting the breach of a
    fiduciary duty, we agree with Plaintiffs that Utah law does recognize such a cause of
    action. However, we decline to address the question of whether Utah recognizes the
    aiding and abetting of fraudulent nondisclosure because Plaintiffs have failed to
    adequately brief that argument.
    ¶35 The district court premised its dismissal of Plaintiffs’ aiding and abetting breach
    of fiduciary duty claims on its conclusion that the Utah Supreme Court has yet to
    recognize such claims under Utah law. In so doing, the district court correctly observed
    that this court, on at least one occasion, declined to address the issue of whether Utah
    recognizes these types of claims. See Coroles v. Sabey, 
    2003 UT App 339
    , ¶ 34 n.19, 
    79 P.3d 974
    . However, we conclude that claims for aiding and abetting the breach of a
    fiduciary duty have been recognized, at least implicitly, in other cases from both the
    supreme court and this court.
    7
    Defendants have also failed to identify how they would be prejudiced if
    Plaintiffs were to prevail on either of these theories in Dolezsar’s absence.
    8
    We also note that this litigation is still in its early stages and that the facts will
    likely become more fully developed over the course of discovery. If those facts reveal a
    substantially larger role for Dolezsar than is currently alleged in the Second Amended
    Complaint, then it may become appropriate for the district court to revisit this issue.
    However, we cannot say that Dolezsar is a necessary and indispensable party to
    Plaintiffs’ fraud claims as they are currently pleaded.
    20100532‐CA                                   18
    ¶36 In United Park City Mines Co. v. Greater Park City Co., 
    870 P.2d 880
     (Utah 1993), the
    plaintiff had brought claims for aiding and abetting breach of fiduciary duty. See 
    id. at 890
    . The supreme court affirmed the district court’s conclusion that the plaintiff’s
    claims were barred by the applicable statute of limitations. See 
    id.
     By applying the
    statute of limitations to the plaintiff’s claims, without reservation or language
    suggesting a remaining question as to the claims’ viability, the supreme court implicitly
    acknowledged that such claims exist under Utah law.
    ¶37 This court provided even more direct recognition in Russell/Packard Development,
    Inc. v. Carson, 
    2003 UT App 316
    , 
    78 P.3d 616
    , aff’d on other grounds, 
    2005 UT 14
    , 
    108 P.3d 741
    . In Russell/Packard, we stated that “‘[p]arties who knowingly join a fiduciary in
    fraudulent acts, whereby the fiduciary breaches his or her fiduciary duties, are jointly
    and severally liable with that fiduciary.’” 
    Id. ¶ 33
     (quoting 37 Am. Jur. 2d Fraud and
    Deceit § 306 (2001)). In a parenthetical supporting this statement, we observed that
    “‘[t]he gravamen of the claim [of aiding and abetting a breach of fiduciary duty] is the
    defendant’s knowing participation in the fiduciary’s breach.’” Id. (quoting Future
    Group, II v. Nationsbank, 
    478 S.E.2d 45
    , 49 (S.C. 1996)).
    ¶38 In light of United Park City Mines Co. and Russell/Packard, we agree with Plaintiffs
    that Utah law recognizes a cause of action for aiding and abetting the breach of a
    fiduciary duty.9 The district court’s conclusion to the contrary was error, and we
    reverse the dismissal of Plaintiffs’ claims.
    ¶39 Plaintiffs also purport to challenge the district court’s determination that Utah
    does not recognize a cause of action for aiding and abetting fraudulent nondisclosure.
    However, the argument contained in Plaintiffs’ brief only addresses aiding and abetting
    a breach of fiduciary duty. Because Plaintiffs’ brief fails to present an argument that
    Utah recognizes a cause of action for aiding and abetting fraudulent nondisclosure, we
    9
    We also note that multiple Utah cases have relied on section 874 of the
    Restatement (Second) of Torts, governing violations of fiduciary duty. See Neff v. Neff,
    
    2011 UT 6
    , ¶ 87 n.70, 
    247 P.3d 380
    ; Stevensen 3rd E., LC v. Watts, 
    2009 UT App 137
    , ¶ 33,
    
    210 P.3d 977
    ; d’Elia v. Rice Dev., Inc., 
    2006 UT App 416
    , ¶ 36, 
    147 P.3d 515
    . The
    comments to section 874 state that “[a] person who knowingly assists a fiduciary in
    committing a breach of trust is himself guilty of tortious conduct and is subject to
    liability for the harm thereby caused.” Restatement (Second) of Torts § 874 cmt. c
    (1979).
    20100532‐CA                                 19
    do not disturb the district court’s ruling on that issue. See Utah R. App. P. 24(a)(9)
    (requiring an appellant’s argument section to “contain the contentions and reasons of
    the appellant with respect to the issues presented”). We recognize that Plaintiffs’ reply
    brief does present a more developed argument regarding Utah’s recognition of this
    cause of action, but we do not consider arguments raised for the first time in an
    appellant’s reply brief. See Brown v. Glover, 
    2000 UT 89
    , ¶ 23, 
    16 P.3d 540
     (“Generally,
    issues raised by an appellant in the reply brief that were not presented in the opening
    brief are considered waived and will not be considered by the appellate court.”). In
    declining to address this issue due to Plaintiffs’ inadequate briefing, we express no
    opinion on the underlying question of whether Utah recognizes a cause of action for
    aiding and abetting fraudulent nondisclosure.
    CONCLUSION
    ¶40 We conclude that the district court erred when it dismissed Plaintiffs’ fraud and
    fraud‐based claims for failure to plead them with particularity. Although Plaintiffs’
    claims are numerous, lengthy, and complex, neither the length of the Second Amended
    Complaint nor Plaintiffs’ use of internal cross‐referencing justifies the conclusion that
    Plaintiffs have failed to plead with the required particularity. On remand, the district
    court may require the parties to assist it with a claim‐by‐claim analysis of Plaintiff’s
    fraud and fraud‐based claims for adequate particularity. The district court may also
    take reasonable steps, within its discretion, to ensure that the litigation of this matter
    remains manageable and efficient.
    ¶41 We also determine that the district court erred when it concluded that Mower’s
    deceased husband was an indispensable party to this litigation, and that the district
    court erred in dismissing Plaintiffs’ claims for aiding and abetting the breach of a
    fiduciary duty. For all of these reasons, we reverse the district court’s June 2010 rulings
    on these grounds and remand this matter to the district court for further proceedings.
    ____________________________________
    William A. Thorne Jr., Judge
    ‐‐‐‐‐
    ¶42    WE CONCUR:
    20100532‐CA                                 20
    ____________________________________
    Gregory K. Orme, Judge
    ____________________________________
    Stephen L. Roth, Judge
    20100532‐CA                            21