State v. Bruun , 443 P.3d 756 ( 2019 )

2019 UT App 77THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ALLAN BRUUN,
Appellant.
Opinion
No. 20160466-CA
Filed May 9, 2019
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 111903468
Clifton W. Thompson, Attorney for Appellant
Sean D. Reyes, Jeffrey S. Gray, and Jacob S. Taylor,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 This case presents the question of whether a civil
settlement between a victim and a defendant, entered into prior
to entry of an order of complete restitution in a related criminal
case, precludes the victim from enforcing that restitution order
once it is entered as a judgment on the civil docket. In light of the
plain language of, and the well­recognized purposes for, the
Crime Victims Restitution Act, we conclude that a prior civil
settlement does not preclude enforcement of a restitution
judgment provided that the victim does not obtain a double
recovery.
State v. Bruun
BACKGROUND 1
¶2 Following a jury trial in 2013, Allan Bruun and James
Diderickson (collectively, Defendants) were convicted of twelve
counts of theft and one count of engaging in a pattern of
unlawful activity, growing out of their criminal conduct
perpetrated against Utah County landowners (Victims). 2 In 2007,
Defendants and Victims entered into a joint business venture to
develop 29 acres of land in Saratoga Springs (the Property) that
Victims had purchased decades earlier to fund their retirement.
Victims partnered with an entity owned by Defendants, Equity
Partners LLC, to form Tivoli Properties LLC, whose purpose was
to “carry[] on the business of acquiring, managing, improving,
subdividing, developing, leasing and selling the Property or any
other enterprise that members may mutually agree upon.”
Victims held a 25% interest in Tivoli, and Equity Partners owned
the remainder.
¶3 As part of the joint venture, Victims also agreed to sell the
Property to Equity Partners for $3.5 million, with $750,000 due as
a down payment. Prior to closing on the sale of the Property,
Defendants informed Victims that they were unable to make the
$750,000 down payment and convinced Victims to take out a
loan secured by the Property for that amount to enable
commencement of the Property’s development. Approximately
$350,000 of the loan proceeds was used to pay off existing
mortgages and taxes on the Property, and the remaining
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. A more detailed account of the facts underlying Defendants’
convictions is provided in our prior decision in this case. See
State v. Bruun, 2017 UT App 182, ¶¶ 2–13, 405 P.3d 905.
20160466-CA 2 2019 UT App 77State v. Bruun
$400,000 was transferred to Tivoli’s business checking account,
whereupon that sum became the company’s only operating
funds.
¶4 Approximately six months later, Victims discovered that
Defendants had written a host of checks on Tivoli’s account that
did not appear to be related to the development of the Property.
Following Victims’ complaints and ensuing negotiations,
Victims and Defendants entered into a settlement agreement (the
Settlement Agreement) in which Defendants agreed to transfer
title to all but .6 acres of the Property back to Victims.
Defendants had already sold the remaining .6 acres to the Utah
Department of Transportation, but they agreed to also transfer
the proceeds from that sale, $174,000, to Victims. In exchange,
Victims paid Equity Partners $25,000 and agreed to “waive any
claim or right to assert any cause of action” against Defendants
related to their management of Tivoli. The checks that later gave
rise to the theft charges against Defendants were identified in the
Settlement Agreement, which recited that Victims released any
claims they had concerning the checks.
¶5 Two years later, the State charged Defendants with 28
counts of theft and one count of engaging in a pattern of
unlawful activity for writing unauthorized checks on Tivoli’s
account. A jury determined that 12 of the 28 checks were
unauthorized by Tivoli’s operating agreement and convicted
Defendants on twelve counts of theft and one count of engaging
in a pattern of unlawful activity. As part of their sentence, the
district court ordered Defendants to jointly and severally pay
Victims $189,574.33 in complete and court-ordered restitution—
the aggregate sum of the 12 checks underlying the theft
convictions.
¶6 Defendants previously appealed their convictions and the
district court’s order of restitution, resulting in our decision in
State v. Bruun (Bruun I), 2017 UT App 182, 405 P.3d 905. In
challenging the restitution order, Defendants argued (1) “that
20160466-CA 3 2019 UT App 77State v. Bruun
the release of claims in the Settlement [Agreement], signed by
both Defendants and the Victims, precluded restitution as a
matter of law”; and (2) “that the consideration the Victims
received as part of the Settlement [Agreement] should have been
taken into account in the court’s restitution order.” Id. ¶ 80. We
were persuaded by neither argument and affirmed the
restitution order. Id. ¶ 99.
¶7 Relying on our Supreme Court’s decision in State v.
Laycock, 2009 UT 53, 214 P.3d 104, we determined Defendants’
first argument to be unavailing because the State was not a party
to the Settlement Agreement, and therefore “the State’s interests
[in seeking restitution] were not foreclosed by the release.”
Bruun I, 2017 UT App 182, ¶ 86. And regarding Defendants’
second argument, we held it was not an abuse of discretion for
the district court to determine that evidence of the Property’s
value was too speculative and unreliable to conclude that return
of the Property necessarily compensated Victims in full for the
unauthorized checks, id. ¶ 98, and that “Defendants ha[d] also
failed to persuade us that the trial court’s actual restitution
award amounted to a double recovery,” id. ¶ 94.
¶8 During the pendency of Bruun I, Defendants moved the
district court for an order of satisfaction of judgment pursuant to
rule 58B of the Utah Rules of Civil Procedure. They argued that
because the Settlement Agreement referenced the 12 checks that
were the subject of the restitution order and included an express
release of Victims’ claims concerning the same, they were
entitled to an order of satisfaction of judgment once the complete
restitution order was entered as a judgment on the civil docket.
See Utah Code Ann. § 77­38a­401(1) (LexisNexis Supp. 2018).
After recognizing that Defendants’ motion involved “issues of
law which are of first impression,” the district court denied the
motion. The court’s denial of this motion is the target of
Defendants’ current appeal.
20160466-CA 4 2019 UT App 77State v. Bruun
ISSUE AND STANDARD OF REVIEW
¶9 Whether a prior settlement agreement can satisfy an order
of complete restitution after the restitution order is entered as a
judgment on the civil docket presents a question of law, which
we review for correctness. See Pilot v. Hill, 2019 UT 10, ¶ 9, 437
P.3d 362 (“[P]ure question[s] of law” are reviewed “for
correctness.”).
ANALYSIS
¶10 The Crime Victims Restitution Act (the Act) requires a
district court to “determine complete restitution and
court­ordered restitution,” 3 Utah Code Ann. § 77-38a-302(2)
(LexisNexis 2017), and to subsequently “enter an order of
complete restitution . . . on the civil judgment docket,” id.
§ 77­38a­401(1) (Supp. 2018). Such an order “shall be considered
3. “Complete restitution is restitution necessary to compensate a
victim for all losses caused by the defendant, taking into account
all relevant facts,” including those facts enumerated in Utah
Code section 77­38a­302(5)(b). State v. Mooers, 2017 UT 36, ¶ 9,
424 P.3d 1 (emphasis added) (quotation simplified). In contrast,
court-ordered restitution “is the restitution the court having
criminal jurisdiction orders the defendant to pay as a part of the
criminal sentence.” Id. ¶ 10 (quotation simplified). In addition to
considering the factors for complete restitution, district courts
take the defendant’s particular circumstances into consideration
when determining the amount of court-ordered restitution.
Id. ¶ 11. See also Utah Code Ann. § 77­38a­302(5)(c) (LexisNexis
2017) (listing the additional factors a district court must consider
when determining court-ordered restitution). As a subset of
complete restitution, court-ordered restitution must be either
equal to or less than the complete restitution amount. See Mooers,
2017 UT 36, ¶¶ 11, 19 n.4.
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a legal judgment, enforceable under the Utah Rules of Civil
Procedure,” thereby affording the victim or the Department of
Corrections the rights to “enforce the restitution order as
judgment creditor under [those same rules].” Id. § 77­38a­401(2)
(emphasis added). 4
¶11 Citing this provision of the Act and relying on rule
58B(b) of the Utah Rules of Civil Procedure, Defendants
argue that once the complete restitution order was reduced to
a civil judgment, they were entitled to an order of satisfaction
of that judgment. See Utah R. Civ. P. 58B(b) (providing that
a district court “may, upon motion and satisfactory proof,
enter an order declaring [a] judgment satisfied”). Specifically,
Defendants contend that their compliance with the terms of
the Settlement Agreement—the one they and Victims
executed two years prior to the commencement of criminal
proceedings and which referenced the 12 checks Defendants
wrote on the Tivoli account—served as “satisfactory proof”
that the judgment had been satisfied. Defendants assert
that through their efforts to re-zone the Property, its value
increased between the time Victims sold it to Equity Partners
and the time it was conveyed back to Victims pursuant to the
Settlement Agreement, and that this increase in value was
sufficient to satisfy the complete restitution amount of
$189,574.33. 5
4. In contrast, unlike complete restitution orders that are
enforceable as civil judgments, “a violation of court-ordered
restitution subjects the defendant to criminal enforcement
mechanisms such as contempt of court.” Mooers, 2017 UT 36,
¶ 18 n.3.
5. But as we will discuss infra, the district court expressly
rejected this contention when determining the complete
restitution amount, deeming the evidence presented regarding
(continued…)
20160466-CA 6 2019 UT App 77State v. Bruun
¶12 Defendants correctly state that upon agreement between
the parties, a judgment debtor’s obligation to the judgment
creditor may be satisfied under rule 58B(b) of the Utah Rules of
Civil Procedure by means other than direct monetary payment.
See Red Bridge Capital LLC v. Dos Lagos LLC, 2016 UT App 162,
¶ 10 n.2, 381 P.3d 1147 (stating that rule 58B(b) “require[s] only
‘satisfactory proof’ that a judgment has been satisfied,” and
“[w]here [a] judgment debtor can demonstrate that . . . the
parties had agreed to satisfaction by means other than simple
payment, evidence that the judgment debtor met its obligations
under the parties’ agreement may provide satisfactory proof that
the judgment has been satisfied”). But that rule contemplates
agreement between the parties after judgment is entered. We are
still left with the task of determining whether the Act permits a
settlement entered into prior to entry of a restitution judgment on
the civil docket to satisfy that judgment. See infra ¶ 16.
¶13 In support of their position, Defendants cite State v.
Laycock, 2009 UT 53, 214 P.3d 104. In Laycock, our Supreme Court
addressed the issue of whether a civil settlement between a
defendant and a victim barred the imposition of restitution in a
subsequent criminal action arising from the same incident. See id.
¶ 12. The Court determined that such civil settlements did not
bar the imposition of restitution by the district court because the
controversy between the State and the defendant was not
finished and the twin purposes of restitution, i.e., to compensate
the victim and to act as a deterrent, had not been satisfied. See id.
¶ 18. But, without expressly deciding, the Court concluded by
musing as to the effect the settlement agreement would have on
the order of complete restitution once it was entered as a
judgment on the civil docket, stating:
(…continued)
the pre- and post-settlement values of the Property to be too
speculative.
20160466-CA 7 2019 UT App 77State v. Bruun
In the context of this case, once [the district court]
completes the task assigned to [it] on remand—to
determine complete restitution—that sum will be
reduced to a civil judgment, a judgment that may
only be enforced through the Utah Rules of Civil
Procedure. At that point, a serious question will
arise over whether [the victim] may execute on her
judgment when she has released [the defendant]
from all of her claims against him. While this
question is one we need not answer today, we
likely will be required to answer it someday. It
would appear that under our statutory scheme, the
rationale we used to reject [the defendant’s] mootness
claim may lose much of its persuasive force after a civil
judgment is entered.
Id. ¶ 33 (emphasis added). Defendants rely on the emphasized
language to support the contention that the discharge of their
responsibilities under the Settlement Agreement likewise
satisfied the civil judgment entered against them at the
conclusion of their criminal case.
¶14 But, as Defendants acknowledge, the comments shared by
our Supreme Court amount to nonbinding dicta. Specifically,
because the Court merely speculated on the legal issue and
expressly reserved it for future resolution, the comments to
which Defendants direct our attention represent no more than “a
remark or expression of opinion that [the C]ourt uttered as an
aside,” rendering it nonbinding obiter dicta. 6 See Ortega v.
6. “Dicta normally comes in two varieties: obiter dicta and
judicial dicta.” Ortega v. Ridgewood Estates LLC, 2016 UT App 131,
¶ 14 n.4, 379 P.3d 18 (quotation simplified). Although “[b]oth
terms refer to judicial statements that are unnecessary to the
resolution of the case,” obiter dicta is nonbinding whereas
(continued…)
20160466-CA 8 2019 UT App 77State v. Bruun
Ridgewood Estates LLC, 2016 UT App 131, ¶ 14 n.4, 379 P.3d 18(quotation simplified). Cf. State v. Ogden, 2018 UT 8, ¶ 42, 416
P.3d 1132 (stating that another of its observations in Laycock—
“that matters of negligence, proximate cause and the amount of
resulting damages are best left to civil litigation”—was not an
issue the Court was asked to address in Laycock, rendering the
statement dicta, and explaining that, as a result, “that statement
should not be read to suggest that [the Court] had concluded the
[Act] requires something other than proximate causation” when
determining the complete restitution amount) (quotation
simplified). And having considered the merits of the parties’
arguments, we now conclude that prior settlement agreements
that do not result in a double recovery by the victim cannot
preclude enforcement of restitution judgments.
¶15 We begin by turning to the plain language of the Act. See
Ogden, 2018 UT 8, ¶ 31. Section 401 provides that after the
district court enters an order of complete restitution on the civil
docket, “[t]he order shall be considered a legal judgment,
enforceable under the Utah Rules of Civil Procedure.” Utah Code
Ann. § 77-38a-401(2) (LexisNexis Supp. 2018) (emphasis added).
The Legislature’s choice of the word “enforceable”—as opposed
to a more neutral word, such as “governed”—provides guidance
(…continued)
“lower courts are obliged to follow any judicial dicta that may be
announced by the higher court.” Id. (quotation simplified).
“Obiter dicta refers to a remark or expression of opinion that a
court uttered as an aside,” and includes “statement[s] made by a
court for use in argument, illustration, analogy or suggestion.”
Id. (quotation simplified). Judicial dicta, on the other hand,
encompasses “statement[s] deliberately made for the guidance of
the bench and bar upon a point of statutory construction not
theretofore considered” by the higher court. Id. (quotation
simplified).
20160466-CA 9 2019 UT App 77State v. Bruun
to our resolution of this issue. “Enforceable” is an adjective that
stems from the verb “to enforce,” which means “to compel
obedience to [something]” or “[l]oosely, to compel a person to
pay damages.” Enforce, Black’s Law Dictionary 608 (9th ed.
2009). See also Enforce, New Oxford American Dictionary 574 (3d
ed. 2010) (defining “enforce” as the act of “compel[ling]
observance of or compliance with [something]” or “caus[ing]
(something) to happen by necessity or force”); Enforcement,
Black’s Law Dictionary 608 (9th ed. 2009) (defining
“enforcement” as “[t]he act or process of compelling
compliance”). The Legislature’s choice of the word “enforceable”
therefore emphasizes the victim’s right to seek to collect on
the civil judgment under the Utah Rules of Civil Procedure
rather than recognizing the defendant’s right to seek relief from
the judgment under the rules or to have them more generally
apply. 7
¶16 And insofar as the Act directs us to the Utah Rules of
Civil Procedure, those rules do not contemplate the situation
presented by this case. Although parties in a civil proceeding
may certainly enter into settlement agreements after a plaintiff
has obtained a judgment against a defendant, 8 see Utah R. Civ. P.
7. As a natural corollary, the Legislature’s choice of the word
“enforceable” suggests that rather than the entirety of the Utah
Rules of Civil Procedure, the Legislature intended only the rules
that specifically govern the enforcement of judgments to apply
to complete restitution judgments. See, e.g., Utah R. Civ. P. 64C,
64D, 64E, 66, 69A, & 69C.
8. A plaintiff might opt to settle with a defendant after a district
court’s entry of judgment for less than the judgment amount in
order to obtain a prompt payment rather than having to proceed
with enforcement efforts. The plaintiff might also wish to avoid
any potential costs that the plaintiff might incur as a result of
(continued…)
20160466-CA 10 2019 UT App 77State v. Bruun
58B(b), a settlement between the parties prior to formal, judicial
resolution of a civil case would result in dismissal of the case
should an action thereafter be brought and should the defendant
choose to raise settlement as an affirmative defense, see id. R. 8(c)
(including “accord and satisfaction” and “release” as among the
available affirmative defenses), thereby necessarily foreclosing
an entry of judgment. The present case involves both an executed
settlement agreement that expressly referenced the 12 checks
that formed the basis of the restitution award and the
subsequent entry of judgment for the complete restitution
amount. Other than in the restitution context, which represents
“a unique animal, existing at the convergence of the civil and
criminal worlds,” State v. Mooers, 2017 UT 36, ¶ 7, 424 P.3d 1, we
are hard­pressed to envision in the civil context a situation that
encompasses a prior settlement agreement that has been fully
satisfied and a subsequent civil judgment, both of which purport
to fully resolve the same claims between the same parties. As
such, the Utah Rules of Civil Procedure provide little assistance
to our resolution of this case.
¶17 Admittedly, although the Act’s plain language provides
some guidance, such guidance is limited and the Act is largely
silent on the particular issue presented in this case. “When a
statute is silent regarding particular circumstances and we
determine that such a gap was not the intent of the legislature,
we must determine the best rule of law to ensure that the statute
is applied uniformly.” Cox v. Laycock, 2015 UT 20, ¶ 42, 345 P.3d
689 (quotation simplified). In doing so, we must “analyze the act
in its entirety and harmonize its provisions in accordance with
the legislative intent and purpose.” Id. (quotation simplified). See
also Ogden, 2018 UT 8, ¶ 31 (“When interpreting a statute, it is
(…continued)
collecting on the judgment or even to avoid altogether the
uncertainties that surround the collection process.
20160466-CA 11 2019 UT App 77State v. Bruun
axiomatic that this court’s primary goal is to give effect to the
legislature’s intent in light of the purpose that the statute was
meant to achieve.”) (quotation simplified).
¶18 The Act was enacted to serve two well-recognized
purposes. The first is “to compensate the victim for pecuniary
damages.” 9 State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. See
State v. England, 2017 UT App 170, ¶ 13, 405 P.3d 848 (“The
well­settled remedial purpose of our restitution statute is to
compensate victims for the harm caused by a defendant and to
spare victims the time, expense, and emotional difficulties of
9. The current version of the Act defines “pecuniary damages” as
all demonstrable economic injury, whether or not
yet incurred, including those which a person could
recover in a civil action arising out of the facts or
events constituting the defendant’s criminal
activities and includes the fair market value of
property taken, destroyed, broken, or otherwise
harmed, and losses, including lost earnings,
including those and other travel expenses
reasonably incurred as a result of participation in
criminal proceedings, and medical and other
expenses, but excludes punitive or exemplary
damages and pain and suffering.
Utah Code Ann. § 77-38a-102(6) (LexisNexis 2017).
As we recognized in Bruun I, this definition differs
slightly from the one in effect at the time the district court
determined the restitution amounts in the current case. See State
v. Bruun, 2017 UT App 182, ¶ 81, 405 P.3d 905. But because
Defendants’ argument that the district court’s restitution award
amounted to a double recovery for Victims is barred by the
doctrine of res judicata, as hereinafter explained, any change to
the definition of “pecuniary damages” is of no import in this
case.
20160466-CA 12 2019 UT App 77State v. Bruun
separate civil litigation to recover their damages from the
defendant.”) (quotation simplified). However, in promoting that
purpose, courts should limit restitution “to that amount which is
necessary to compensate a victim for losses caused by the
defendant” and be careful not “to grant a windfall to the victim.”
England, 2017 UT App 170, ¶ 15 (quotation simplified). And the
second purpose, “as a part of a criminal sanction, is to
rehabilitate and deter the defendant, and others, from future
illegal behavior.” Laycock, 2009 UT 53, ¶ 18. We conclude that
neither purpose is served by permitting a prior settlement
agreement that does not fully compensate a victim for the
pecuniary damages caused by a defendant to satisfy a
subsequent judgment for complete restitution.
¶19 In Laycock, our Supreme Court relied heavily on the dual
purposes of the Act in holding that a prior settlement agreement
between defendant and victim could not foreclose the imposition
of complete restitution by the district court. See id. (rejecting the
defendant’s argument of mootness “because the controversy
between the parties [was] not over and the dual purposes of
restitution ha[d] not been fulfilled”) (quotation simplified). And
we struggle to see how the dual purposes of restitution would be
fulfilled by the entry of an order of complete restitution as a
judgment on the civil docket if it were to immediately be
deemed satisfied by an earlier settlement that compensated the
victim for a sum less than the victim’s total loss. Quite the
contrary, any compensatory, rehabilitative, or deterrent aims of
the Act would be only symbolically met, if not undermined, by
such a scheme.
¶20 It must be noted that settlement agreements, typically the
result of negotiation and compromise, often will not fully
compensate victims for the pecuniary damages suffered by
them, which complete restitution, by its very terms, is intended
to do. See Utah Code Ann. § 77-38a-302(2)(a) (LexisNexis 2017)
(“‘Complete restitution’ means restitution necessary to
compensate a victim for all losses caused by the defendant.”)
20160466-CA 13 2019 UT App 77State v. Bruun
(emphasis added). As the State points out, “[p]arties settle for
many reasons,” including to avoid the cost and unpredictability
of litigation, “to achieve the peace of mind that comes with
finality sooner, rather than later,” and to avoid the additional
emotional toll a victim would potentially suffer by reason of
ongoing civil litigation. As a result, victims might choose to cut
their losses and agree to settlements that do not fully
compensate them for their damages, thereby defeating the first
purpose of the Act.
¶21 The second purpose of the Act—that of rehabilitation and
deterrence—is likewise not fulfilled by Defendants’
interpretation of the Act. “[O]rders of complete restitution,
though technically entered on the civil docket, flow entirely from
the criminal cases that give rise to them; they are not separate
civil cases with a life outside of the criminal case.” State v.
Mooers, 2017 UT 36, ¶ 17, 424 P.3d 1. And by permitting a prior
settlement agreement for less than the victims’ total pecuniary
loss to satisfy a complete restitution judgment, defendants could
effectively avoid the full consequences of their crimes by cajoling
vulnerable victims into entering into unfavorable settlement
agreements prior to the district court’s restitution determination.
And given the purposes of the Act, it is highly unlikely that the
Legislature intended such an outcome.
¶22 Based on the language of the Act providing that victims
can enforce their restitution judgments pursuant to the Utah
Rules of Civil Procedure, the lack of guidance from the rules
themselves, and the well-recognized purposes the Act was
enacted to promote, we hold that the Settlement Agreement will
offset the district court’s complete restitution award only to the
extent that the settlement demonstrably compensated Victims
for the pecuniary losses occasioned by the thefts of which
Defendants were convicted. It is insufficient that the Settlement
Agreement expressly referenced the 12 checks that provided the
basis for Defendants’ criminal convictions and restitution order.
Even though the Settlement Agreement contained a purported
20160466-CA 14 2019 UT App 77State v. Bruun
release of any claims Victims had resulting from the checks, 10 the
Settlement Agreement must have actually compensated them for
the pecuniary losses they suffered as a result of those
unauthorized checks. As such, we next determine whether and
to what extent the Settlement Agreement did so.
¶23 In their earlier appeal, Defendants argued that the
Settlement Agreement and the restitution order amounted to
double recovery for Victims. See Bruun I, 2017 UT App 182, ¶ 87,
405 P.3d 905. We held that the district court did not abuse its
discretion in determining that evidence of the Property’s value
was too speculative and unreliable to form the basis for
restitution. See id. ¶¶ 91–95, 98. See also State v. Ogden, 2018 UT 8,
¶ 52, 416 P.3d 1132 (“A trial court’s restitution award must rely
on a sufficient evidentiary basis. . . . [A]n award of damages
based only on speculation cannot be upheld.”) (quotation
simplified). As such, “Defendants ha[d] . . . failed to persuade us
that the trial court’s actual restitution award amounted to a
double recovery.” Bruun I, 2017 UT App 182, ¶ 94. In light of our
prior determination that the Settlement Agreement and
restitution judgment did not doubly compensate Victims,
Defendants are not entitled to offset the judgment by any
10. And to the extent the Settlement Agreement was used in an
effort to curb Victims’ participation in subsequent criminal
proceedings, it would be void as against public policy. See 15
Grace McLane Giesel, Corbin on Contracts § 83.1, at 251 (Joseph
M. Perillo ed., rev. ed. 2003) (“[A]ny bargain for the purpose of
stifling a criminal prosecution, whether or not the bargain is
criminal, is always contrary to public policy and
unenforceable.”). While the release may well have precluded
Victims from bringing a civil action to recover the amount of the
unauthorized checks, the release was not effective to preclude
Victims from complaining to the criminal authorities or
benefitting from their rights under the Act.
20160466-CA 15 2019 UT App 77State v. Bruun
amount and are jointly and severally obligated to pay Victims
the full restitution judgment in the amount of $189,574.33.
CONCLUSION
¶24 Having considered the language and purposes of the
Crime Victims Restitution Act, we conclude that prior settlement
agreements do not satisfy complete restitution judgments, except
to the extent that the settlements and judgments would
demonstrably result in double recovery. Because the Settlement
Agreement Victims entered into with Defendants has not been
shown to be duplicative of the restitution judgment, Defendants
are not entitled to satisfaction of the judgment, partial or
otherwise.
¶25 Affirmed.
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