State v. Chadwick , 2021 UT App 40 ( 2021 )

2021 UT App 40THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KRISTOPHER BLAKE CHADWICK,
Appellant.
Opinion
No. 20190786-CA
Filed April 8, 2021
First District Court, Logan Department
The Honorable Thomas Willmore
No. 171101238
Paul H. Johnson, Attorney for Appellant
John D. Luthy and Spencer D. Walsh,Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY
concurred. 1
HARRIS, Judge:
¶1 The owners of a house (Homeowners) hired Kristopher
Blake Chadwick to remodel two bathrooms for a bid price of
$7,270. Unbeknownst to Homeowners, Chadwick had only a
“handyman license” and was therefore not licensed to work on
projects valued over $3,000. Homeowners also did not know that
Chadwick had been convicted, on three prior occasions, of
criminal misdemeanors for contracting without a license.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Chadwick
¶2 Chadwick’s work for Homeowners was, in many
respects, not of high quality. He ordered a bathroom vanity that
was too large to accommodate installation of a toilet, and his tile
work was poor—tile laid on the bathroom floors could be lifted
up by hand, and there were large holes in the grout between the
tiles affixed to the walls and ceilings of the showers. Dissatisfied
with Chadwick’s work, Homeowners contacted the Utah
Division of Occupational and Professional Licensing (DOPL)
and discovered that Chadwick was licensed only as a
handyman. At that point, Homeowners terminated their contract
with Chadwick.
¶3 Shortly thereafter, Homeowners sent a letter to DOPL
complaining about Chadwick and detailing the poor quality of
the work he had done for them. At the end of that letter,
Homeowners asserted that, as a consequence of Chadwick’s
substandard work, “[t]he bathroom floor tiles will need to be
removed and re-tiled” and “the grout in both showers will need
to be removed and re-grouted.” Homeowners stated that they
had obtained “estimates for redoing the floors in both bathrooms
and removing the defective grout” on the walls and ceilings of
the showers and “redoing” that grout.
¶4 After investigation, the State charged Chadwick with
communications fraud, a third-degree felony, and contracting
without a license, a class A misdemeanor. Later, Chadwick
entered into a plea agreement in which he pled guilty to the
misdemeanor charge and the State agreed to dismiss the felony
charge. As part of the agreement, Chadwick agreed to “pay
restitution as ordered by the court after a restitution hearing.”
¶5 At the restitution hearing, the State presented testimony
from one of the Homeowners and introduced several exhibits
into evidence, including the letter Homeowners sent to DOPL, as
well as a video and several photos depicting Chadwick’s shoddy
work. In particular, the State presented evidence that the
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bathroom vanity was too big for the space; that the tile
Chadwick laid on the bathroom floors had been improperly
installed, could be pulled up by hand, and needed to be
removed and replaced in its entirety; and that, according to the
“estimates” referred to in the DOPL letter, the grouting on the
shower walls and ceilings was substandard and needed to be
redone. On appeal, Chadwick does not contest the restitution
order as to these three components of restitution.
¶6 But the order included one additional component: that
Chadwick pay for the complete retiling of the shower walls and
ceilings, and not merely for their regrouting. Chadwick appeals
only that portion of the court’s restitution order, and contends
that the State presented insufficient evidence that the tile (as
opposed to the grouting) on the shower walls and ceilings was
improperly installed and needed to be removed and replaced.
“We will not disturb a district court’s restitution determination
unless the court exceeds the authority prescribed by law or
abuses its discretion.” State v. Ogden, 2018 UT 8, ¶ 25, 416 P.3d
1132 (quotation simplified). A restitution determination
constitutes an abuse of discretion if “no reasonable person
would take the view adopted by the [district] court.” State v.
Bird, 2017 UT App 147, ¶ 14, 405 P.3d 726 (quotation simplified).
And when a defendant “argues that the evidence was
insufficient to support [a] restitution order,” the defendant
“must demonstrate that the clear weight of the evidence
contradicts” the court’s ruling. See id. ¶ 15 (quotation simplified).
¶7 In our view, Chadwick is correct in pointing out that the
State presented no direct evidence that the tile itself—as opposed
to the grout—on the shower walls and ceilings was improperly
installed. For his part, Chadwick testified at the restitution
hearing that, even though there were problems with the way he
grouted the tile on the shower walls and ceilings, he properly
installed the tile itself. And the State introduced no direct
evidence to rebut Chadwick’s testimony on this point. The
20190786-CA 3 2021 UT App 40State v. Chadwick
testifying Homeowner indicated only that, “[b]ased on the
quality of” the overall tile work done by Chadwick,
Homeowners “decided that” the tile on the shower walls and
ceilings “needed to be redone.” But the Homeowner did not
testify that the tile on the shower walls and ceilings was
improperly installed, and implied that Homeowners made the
decision to tear out the tile, rather than just the grout, on their
own; indeed, the testifying Homeowner did not indicate that any
contractor had told him that the tile on the shower walls and
ceilings needed to be removed. And the State did not introduce
even any indirect evidence (for example, a bid or estimate) of a
contractor’s opinion that the shower tile needed to be replaced;
notably, the only evidence of any “estimate” regarding the
shower was the one mentioned in Homeowners’ letter to DOPL,
in which they indicated that only the grout—and not the tile—in
the shower walls and ceilings needed to be replaced, and that
they had obtained a bid from a contractor willing to do that
more limited work. 2
¶8 In the absence of any direct evidence supporting the
State’s request that Chadwick pay for a complete retiling of the
shower walls and ceilings, the district court grounded its order
in two separate notions. First, the court declared that, because of
the overall poor quality of Chadwick’s work, Homeowners’
“confidence in the quality of [Chadwick’s] work was completely
shaken,” and on that basis determined that Homeowners were
entitled to “do whatever they want[ed] as far as having [the
shower tile torn] out and be made whole.” And second, the court
2. During closing argument, the prosecutor asserted that
Homeowners determined, after consulting with “a new tile
expert,” that all the tile work in the showers needed to be
redone. But no actual evidence—in the form of testimony or
documents—that would support the prosecutor’s assertion is
present in the record.
20190786-CA 4 2021 UT App 40State v. Chadwick
declared that “[t]here is no subcontractor, there is no tile man
that’s going to come in and want to use” the materials that
Chadwick “messed up,” and on that basis determined that
Homeowners were entitled to restitution for all of Chadwick’s
bathroom tile work. Neither of these rationales adequately
supports the court’s restitution order.
¶9 First, the court’s “no confidence” rationale is insufficient.
To be sure, Chadwick’s work was poor in many respects. But
both the State and the district court acknowledged that some of
his work was just fine, including work Chadwick had done on
doors, shelving, and molding, and the court refused to award
restitution relating to that work. The court correctly analyzed
these other areas of Chadwick’s work. After all, Chadwick
should be ordered to pay restitution only for those portions of
his work that the State proved were poorly done; even if his
work was shoddy in some areas, that alone cannot justify a
restitution order that compels him to pay for other work that the
State did not prove was inadequate. See Ogden, 2018 UT 8, ¶ 54
(stating that the State is required “to demonstrate that the
expenses are necessary and that the amount needed to cover
those expenses is firmly established in the record”).
Homeowners likely did have no confidence in Chadwick’s work,
after all was said and done, and almost certainly will not hire
him again. But Homeowners’ lack of confidence in Chadwick’s
work in general, standing alone, cannot justify a restitution
award for every aspect of that work, absent evidence that each
aspect of that work was poorly done. 3 See State v. Mooers, 2018
3. Citing Homer v. Smith, 866 P.2d 622 (Utah Ct. App. 1993), the
State points out that the court is entitled to “draw reasonable
inferences” in making its restitution determination, and asserts
that the court’s “no confidence” rationale represented a
reasonable inference. But reasonable inferences must be drawn
from actual evidence, and may not be speculative. See State v.
(continued…)
20190786-CA 5 2021 UT App 40State v. Chadwick
UT App 74, ¶¶ 15–16, 424 P.3d 1126 (determining that the court
abused its discretion in awarding restitution for purchases made
by the victims without evidence that the purchases were tied to
factors listed in the relevant statute).
¶10 Second, the “no self-respecting tile contractor” rationale
does not support the court’s order either, at least not on the facts
of this case. Certainly, such logic could support a restitution
order, in a case where evidence in the record supported it. For
example, had a contractor in this case testified that he or she
would not touch the tile in the showers without being allowed to
start from scratch, a restitution order compelling Chadwick to
pay for a complete retile would be supported by evidence. But
here, there is no such evidence. The record is devoid of a bid
from any contractor for the complete retiling of the showers. In
fact, the only bid even referenced in the record is the one
referred to in Homeowners’ letter to DOPL, in which they
represented that they had procured a bid for the regrouting
alone. Thus, the only evidence present in the record, far from
supporting the district court’s order, actually suggests the
opposite: that there exist tile contractors who would agree to
regrout someone else’s tile job.
(…continued)
Granados, 2019 UT App 158, ¶ 26, 451 P.3d 289 (“A reasonable
inference is a conclusion that can be drawn from the evidence
. . . .” (quotation simplified)); see also Salt Lake City v. Carrera,
2015 UT 73, ¶ 12, 358 P.3d 1067 (“[T]he difference between an
inference and speculation depends on whether the underlying
facts support the conclusion.”). In this instance, the record
contains no actual evidence that the tile on the walls and ceilings
of the showers needed to be replaced, and therefore there exists
no evidence from which a reasonable inference in that direction
might be drawn.
20190786-CA 6 2021 UT App 40State v. Chadwick
¶11 Perhaps recognizing the evidentiary gaps, the State
contends that the district court’s statements can be “viewed as”
the court tacitly or impliedly taking “judicial notice of the fact
that no other contractor is going to simply re-do the grout in the
showers.” Pursuant to our rules of evidence, a “court may
judicially notice a fact that is not subject to reasonable dispute
because it” is well known in the area or “can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Utah R. Evid. 201(b). But the sort of
facts that are subject to judicial notice are matters of “common
and general knowledge,” and matters that are “disputable” do
not “fall under the head of common knowledge and so will not
be judicially recognized.” See DeFusion Co. v. Utah Liquor Control
Comm’n, 613 P.2d 1120, 1124 (Utah 1980) (quotation simplified).
We do not construe the district court’s statements as having
incorporated—even impliedly—concepts of judicial notice, and
in any event it would have been inappropriate for the court to
have applied those concepts in this context, because the question
of whether contractors will agree to regrout another contractor’s
tile work is not the sort of thing that is subject to judicial notice.
¶12 Ultimately, neither of the court’s rationales for ordering
Chadwick to pay for the complete retiling of the shower walls
and ceilings was supported by sufficient evidence. Accordingly,
we conclude that the court abused its discretion by ordering
Chadwick to pay for complete retiling, as opposed to merely
regrouting, of the shower walls and ceilings. On that basis, we
vacate the district court’s restitution order and remand this
matter for further proceedings, in which the court will need to
determine the amount of restitution to be awarded to
Homeowners for (a) replacement of the bathroom vanity, (b)
complete retiling of the bathroom floors, and (c) regrouting (but
not complete retiling) of the walls and ceilings in the showers.
20190786-CA 7 2021 UT App 40