Stokes v. TLCAS, LLC , 348 P.3d 739 ( 2015 )

2015 UT App 98_________________________________________________________
THE UTAH COURT OF APPEALS
GARY STOKES AND PAULINE STOKES,
Plaintiffs and Appellees,
v.
TLCAS, LLC; GARY GEE; NANCY GEE;
AND AUTO-OWNERS INSURANCE COMPANY,
Defendants and Appellants.
AUTO-OWNERS INSURANCE COMPANY,
Third-party Plaintiff and Appellee,
v.
MARVA GEE,
Third-party Defendant and Appellant.
Memorandum Decision
No. 20130829-CA
Filed April 23, 2015
Third District Court, West Jordan Department
The Honorable Barry G. Lawrence
No. 070400758
Denver C. Snuffer Jr., Steven R. Paul, and
Daniel B. Garriott, Attorneys for Appellants
TLCAS, LLC; Gary Gee; Marva Gee; and Nancy Gee
Richard K. Glauser and Michael W. Wright,
Attorneys for Appellee Auto-Owners Insurance
Company
P. Bryan Fishburn, Attorney for Appellees
Gary Stokes and Pauline Stokes
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.
Stokes v. TLCAS, LLC
TOOMEY, Judge:
¶1 TLCAS, LLC, together with Gary Gee, Marva Gee, and
Nancy Gee (collectively, TLCAS) appeals from the trial court’s
ruling that TLCAS engaged in deceptive and unconscionable
practices under the Utah Consumer Sales Practices Act (the
UCSPA) and is liable to Auto-Owners Insurance Company
(Auto-Owners) for costs related to a dealer’s bond and
reasonable attorney fees under the terms of an indemnification
agreement. Specifically, it contends the court erred by (1) relying
on the lay opinions of Gary and Pauline Stokes to conclude that
TLCAS had forged the Stokeses’ signatures on a document; (2)
finding TLCAS’s sale of a truck with an odometer showing
substantially different mileage from the actual mileage travelled
was a deceptive practice; and (3) inappropriately considering
hearsay evidence that the Stokeses paid for the truck. Finally,
TLCAS argues Auto-Owners settled its claim with the Stokeses
in bad faith and Auto-Owners’ participation in the trial after the
settlement was improper. We affirm.
¶2 TLCAS, LLC, a licensed used car dealership owned by
Gary and Marva Gee, is bonded by Auto-Owners.1 In May 2006,
TLCAS bought a 1996 Dodge truck with certified mileage of
189,041. Sometime between May and August 2006, TLCAS re-
placed the truck’s dashboard and instrument panel with one
from another vehicle. The replacement odometer showed only
103,510 miles—at least 85,000 fewer miles than the truck had
actually been driven.
1. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings . . . .‛ Alvey Dev. Corp.
v. Mackelprang, 2002 UT App 220, ¶ 2, 51 P.3d 45 (citation and
internal quotation marks omitted).
20130829-CA 2 2015 UT App 98Stokes v. TLCAS, LLC
¶3 In October 2006, Gary Stokes decided to purchase the
truck—in part because of its relatively low mileage. Gary Stokes
contacted an account manager at his bank for advice about
whether he should pay for the truck by applying for a loan or
with cash from the proceeds of a recent trailer sale. The account
manager advised Gary Stokes to pay for the truck with cash.
¶4 On October 2, 2006, Gary Stokes drove to TLCAS where
he negotiated the purchase of the truck. During negotiations, no
one at TLCAS disclosed that the dashboard had been replaced or
that the mileage on the odometer was inaccurate. After agreeing
on a purchase price of $3,900, Gary Stokes informed Gary Gee
that he would return with his wife later that day to purchase the
truck.
¶5 That evening, the Stokeses met with Gary Gee to complete
the purchase. With sales tax and fees, the purchase price totaled
$4,548.74, but the Stokeses had only $4,500 in cash with them.
Nevertheless, Gary Gee agreed to take this sum as payment in
full. As part of the purchase, the Stokeses signed a number of
documents, including a Motor Vehicle Contract of Sale, a Vehicle
‚As Is‛ Agreement, a customer-choice statement, and an
‚Odometer Disclosure Statement.‛ On the ‚As Is‛ Agreement,
below the seller and buyer information boxes, the word
‚exempt‛ was typed in the box for noting the odometer reading.
Moreover, the Odometer Disclosure Statement contained the
typed word ‚exempt‛ in the odometer reading box.
¶6 After signing the documents, Pauline Stokes asked Gary
Gee to give her a receipt for the $4,500 purchase. He replied that
the contract was her receipt. Pauline Stokes insisted, but Gary
Gee offered several excuses for not providing it and told her ‚a
receipt written by hand on a piece of paper would not be legal.‛
Pauline Stokes then demanded the return of the $4,500 payment,
before Gary Gee relented and ‚gave her a hand written receipt
and included it with the copies of papers they had signed.‛ After
they received the receipt, the Stokeses’ ‚attention was diverted
20130829-CA 3 2015 UT App 98Stokes v. TLCAS, LLC
by another customer who was loudly airing a complaint.‛ A few
days later Pauline Stokes noticed the receipt was no longer in the
pile of papers.
¶7 The Stokeses left the dealership without the truck,
explaining that Gary Stokes would return to pick it up. The next
day, just after he took possession of the truck, its ‚tail pipe and
muffler broke loose and dropped to the street.‛ While wiring the
muffler and exhaust pipes in place to get home, Gary Stokes
noticed they were heavily rusted and had holes in them.
¶8 After unsuccessfully trying to convince TLCAS to pay
part of the cost of a new muffler and repairs, Gary Stokes con-
tacted the Utah Highway Patrol. A patrolman investigated First
Choice Emissions, Gary Gee’s other business, to determine how
the truck had passed the most recent safety and emissions
inspection in its unsafe condition. The patrolman concluded that
the truck’s ‚prior safety and emission inspection . . . had been
improperly conducted, and he gave a written warning to First
*Choice+ Emissions.‛
¶9 In November 2006, claiming the Stokeses had failed to
pay for the truck, TLCAS submitted to the Division of Motor
Vehicles (the DMV) an Application for Certificate of Title for the
truck (Application for Title). The application listed TLCAS as a
lienholder. Nancy Gee, Gary and Marva Gee’s daughter,
completed the Application for Title. This document was
purportedly signed by the Stokeses on October 2, 2006, but in
contrast to all other documents signed by them on that date, the
signatures were clearly in someone else’s handwriting. The trial
court noted that while the Stokeses’ handwritten signatures on
all other documents were ‚remarkably consistent,‛ the
signatures on this application were ‚markedly different.‛
Moreover, Gary Stokes’s name was misspelled ‚Gay R. Stokes.‛
¶10 The DMV responded to TLCAS’s Application for Title
and notified it that the truck’s title had already been issued to a
20130829-CA 4 2015 UT App 98Stokes v. TLCAS, LLC
local credit union as the lienholder.2 Because it could not obtain
the title, TLCAS obtained a duplicate title showing itself as a
lienholder with an application completed by Marva Gee. Marva
Gee signed the document ‚Gary R. Stokes by TLCAS Marva
Gee‛ without Gary Stokes’s permission.
¶11 In January 2007, the Stokeses filed a complaint against
TLCAS, LLC, Gary Gee, Nancy Gee, and Auto-Owners3 alleging
that they owned the truck free of any liens claimed by TLCAS.
The Stokeses sought damages under various theories, including
violations of the UCSPA for deceptive and unconscionable
practices, breach of contract, and fraud. Moreover, the Stokeses
sought payment from Auto-Owners under the dealer’s bond.4
On February 26, 2007, when it filed its answer to the Stokeses’
complaint, Auto-Owners filed a cross-complaint against TLCAS
seeking enforcement of the terms of an indemnity agreement.5
2. It is unclear why the credit union was listed as a lienholder,
but it later released the lien on the truck and gave title to the
Stokeses.
3. The Stokeses also named First Choice Emissions in the
complaint, but those claims are not relevant to this appeal.
4. Before trial and after completing formal mediation, Auto-
Owners and the Stokeses negotiated a settlement of $5,000 for
the release of their claim. Auto-Owners’ only remaining claim
during trial was against TLCAS.
5. The trial court found, ‚As a condition for the issuance of the
bond, [TLCAS] signed an application for bond which contained
an indemnity agreement . . . promis[ing] to completely
indemnify [Auto-Owners] against any liability, loss, cost,
attorney’s fees and expenses . . . which *Auto-Owners] shall at
any time sustain as a surety.‛
20130829-CA 5 2015 UT App 98Stokes v. TLCAS, LLC
Furthermore, on March 12, 2007, TLCAS filed a counterclaim
against the Stokeses.6
¶12 A bench trial was held in May 2013, during which the
Stokeses testified regarding their recollection of the events. They
also testified that the signatures on the Application for Title were
not theirs. Pauline Stokes testified about her dispute with Gary
Gee over the receipt. The Stokeses called several witnesses, in-
cluding their account manager, who described his discussion
with Gary Stokes about using cash to make the purchase, and
another witness, who testified that he purchased one of Gary
Stokes’s trailers for $8,500 cash on October 1, 2006. Likewise,
Gary Gee, Marva Gee, and their children Nancy Gee and Dale
Gee, testified regarding their recollections of the truck sale and
subsequent events. Marva Gee testified that she signed Gary
Stokes’s name on the application for duplicate title without his
permission.7 Moreover, Gary Gee testified that the Stokeses did
not pay for the truck but did sign the Application for Title.
¶13 The trial court ruled in favor of the Stokeses and Auto-
Owners. It concluded that TLCAS’s sale of the truck with ‚an
odometer that displayed approxima[tely] 85,000 miles less than
actual miles, without disclosing to [the Stokeses] the discrepancy
6. TLCAS’s counterclaim alleged seven causes of action against
the Stokeses, including fraud and conversion for not obtaining
financing for the truck and taking the truck without paying for
it. The trial court eventually dismissed with prejudice TLCAS’s
counterclaim for lack of merit. TLCAS does not challenge the
dismissal.
7. Marva Gee acknowledged she did not contact Gary Stokes
when she signed his name. When asked why she signed Gary
Stokes’s name without first contacting him, she claimed that an
independent form processing service directed her to do so.
20130829-CA 6 2015 UT App 98Stokes v. TLCAS, LLC
or its cause, is a deceptive act as well as an unconscionable prac-
tice.‛ The court also found that submitting a forged document to
the DMV and requesting a lien on the truck notwithstanding the
Stokeses’ payment was an unconscionable practice. Moreover,
the court concluded that Auto-Owners acted in good faith in
settling its claim with the Stokeses.
¶14 Because the Stokeses were unable to provide proof of a
substantial reduction in the truck’s value as a result of TLCAS’s
conduct and calculating the damages was therefore problematic,
the court awarded only statutory damages of $2,000 and reason-
able attorney fees. See Utah Code Ann. § 13-11-19(2), (5)(a)
(LexisNexis 2013). The court also ordered TLCAS to release the
lien recorded on the duplicate title and surrender it to the
Stokeses. Finally, consistent with the findings, the court entered
judgment in favor of Auto-Owners against TLCAS, Gary Gee,
and Marva Gee, ‚each of whom is jointly and [severally] liable
for the debt,‛ including the $5,000 paid to the Stokeses and
reasonable attorney fees, under the terms of the indemnity
agreement. TLCAS appeals.
I. The Application for Title
¶15 The court found that the Stokeses had not signed the
Application for Title and ‚that someone with TLCAS forged the
signatures of Gary Stokes and Pauline Stokes that appear on the
Application for Title.‛8 TLCAS does not explicitly challenge the
finding that the signatures were forged; instead it contends ‚the
court erred by relying exclusively on the testimony of the
8. Based on the record, we determine that the court did not
conclude that TLCAS committed the crime of forgery. Rather it
found that the Stokeses signatures were ‚forged‛ in the
colloquial sense—the signatures were imitated on the
application.
20130829-CA 7 2015 UT App 98Stokes v. TLCAS, LLC
Stokes[es] to conclude the signature in question was a forgery.‛
TLCAS also argues the court erred by relying on lay opinions to
support its finding that the signatures on the Application for
Title was forged. It argues ‚[a] forged signature generally falls
outside the scope of lay opinion.‛
¶16 The Stokeses’ testimony was used to determine facts in
issue—whether they actually signed the document. The trial
court has wide discretion in determining the admissibility of lay
opinion testimony and we review such decisions under an abuse
of discretion standard. Cf. State v. Larsen, 865 P.2d 1355, 1361
(Utah 1993).
¶17 Pursuant to rule 901 of the Utah Rules of Evidence, a non-
expert’s opinion may be used as evidence to authenticate or
identify handwriting if the witness has ‚a familiarity with it that
was not acquired for the current litigation.‛ Utah R. Evid.
901(b)(2). A lay witness may offer opinion testimony if it is ‚(a)
rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.‛ Id. R. 701
(emphasis added). Furthermore, ‚no expert testimony is
required [i]f the matter at issue in the case . . . is within the
knowledge of the average trier of fact.‛ State v. Payne, 964 P.2d
327, 332 (Utah Ct. App. 1998) (alteration and omission in
original) (citation and internal quotation marks omitted).
Because the Stokeses’ testimonies regarding the signatures on
the Application for Title were based on their perception and
familiarity with their own and each other’s signatures, not a
specialized knowledge of signatures, it was not improper for the
court to use their testimonies as a basis for finding that the
Stokeses did not sign the application. The trial court did not
abuse its discretion in allowing the Stokeses to testify concerning
their own and each other’s signatures.
20130829-CA 8 2015 UT App 98Stokes v. TLCAS, LLC
¶18 In finding that the signatures were forged, the trial judge
compared the signatures on the Application for Title with the
other documents purported to be signed by the Stokeses. The
judge concluded, ‚Clearly, those were not their signatures and I
believe that it doesn’t take an expert to make a determination
that those were so different so as not to be the Stokes*es’+ signa-
ture[s] and the . . . testimony in that regard supports that.‛ In a
civil context, the court’s finding that the signatures on the
Application for Title were forged is a factual finding, not a legal
determination. Cf. Valcarce v. Valcarce (In re Estate of Valcarce),
2013 UT App 95, ¶ 11, 301 P.3d 1031 (applying the clearly
erroneous standard in reviewing whether a will was properly
executed). Accordingly, we review this decision for clear error.
See id. ¶¶ 11, 27–33.
¶19 The signatures on the Application for Title differ mark-
edly from those on the other documents signed by the Stokeses
on October 2, 2006. Moreover, the Stokeses testified that they did
not sign the Application for Title. This documentary evidence
and lay testimony sufficiently supports the trial court’s finding.
Accordingly, we conclude that the judge’s finding was ‚not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702,‛ see Utah R. Evid. 701, and
consequently the matter was ‚within the knowledge of the
average trier of fact,‛ see Payne, 964 P.2d at 332 (citation and
internal quotation marks omitted). In sum, the court did not
abuse its discretion in allowing the Stokeses to testify regarding
their signatures, and it was not a clear error to find without the
help of an expert that the signatures were forged.
II. The Utah Consumer Sales Practice Act
¶20 TLCAS contends the trial court erred when it found that
TLCAS violated the UCSPA, because ‚the *Stokeses+ have failed
to establish that [TLCAS] knowingly or intentionally‛
misrepresented the mileage on the truck. TLCAS also argues the
court erred because the ‚As Is‛ Agreement and similar waivers
20130829-CA 9 2015 UT App 98Stokes v. TLCAS, LLC
prohibited the Stokeses from filing suit regarding any express or
implied warranties about the truck.
¶21 We do not address the merits of these arguments. ‚This
court will not reverse a ruling of the trial court that rests on in-
dependent alternative grounds where the appellant challenges
only one of those grounds.‛ Salt Lake County v. Butler, Crockett &
Walsh Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38. That is the
case here. Even if the court erred in finding that TLCAS had
engaged in an unconscionable or deceptive practice by
misrepresenting the truck’s actual mileage, the trial court found
that TLCAS violated the UCSPA on two alternative grounds that
TLCAS has not shown to be erroneous. The court also found that
TLCAS engaged in unconscionable practices by forging the
Application for Title and then submitting the forged document
to the DMV in order to procure a title showing itself as a
lienholder. Moreover, the court found it unconscionable to claim
a lien on the truck notwithstanding the Stokeses’ payment, as
discussed below. See infra ¶¶ 22–23. And as discussed above,
TLCAS has not demonstrated error in the court’s determination
that the signatures on the Application for Title were forged.
Therefore, the court did not err when it found TLCAS engaged
in deceptive and unconscionable practices under the UCSPA.
III. Other Issues
¶22 TLCAS also contends the trial court erred in finding that
the Stokeses paid for the truck and in finding in favor of Auto-
Owners, but TLCAS has failed to carry its burden on appeal.
‚*A+ reviewing court is entitled to have the issues clearly defined
with pertinent authority cited and is not simply a depository in
which the appealing party may dump the burden of argument
and research.‛ State v. Thomas, 1999 UT 2, ¶ 11, 974 P.2d 269(alteration in original) (citation and internal quotation marks
omitted). Rule 24 of the Utah Rules of Appellate Procedure
requires that the appellant’s brief ‚‘contain the contentions and
reasons of the appellant with respect to the issues presented . . .
20130829-CA 10 2015 UT App 98Stokes v. TLCAS, LLC
with citations to the authorities, statutes, and parts of the record
relied on.’‛ State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d 977 (quoting
Utah R. App. P. 24(a)(9)). Moreover, the rule also requires a brief
to be ‚concise, presented with accuracy, logically arranged with
proper headings and free from burdensome, irrelevant,
immaterial or scandalous matters.‛ Utah R. App. P. 24(k).
¶23 First, TLCAS inadequately briefs the argument that the
trial court erred in relying on the testimonies of Gary Stokes, the
Stokeses’ account manager, and another witness to determine
the Stokeses paid for the truck. At trial, the account manager
testified that he and Gary Stokes discussed whether Gary Stokes
would use cash to purchase a new truck as opposed to obtaining
a loan and another witness testified that he purchased one of
Gary Stokes’s trailers for $8,500 cash on October 1, 2006. TLCAS
implicitly contends that the account manager’s and the other
witness’s testimonies were offered to prove that the Stokeses
paid for the truck, but it does not explicitly state this. Moreover,
TLCAS fails to explain how the account manager’s or the other
witness’s testimonies are irrelevant or hearsay. Instead, TLCAS
merely offers conclusory statements supported by two citations
to the trial transcript that could support a finding that the
Stokeses did not pay for the truck. TLCAS offers no hearsay
framework or authorities to analyze this argument and fails to
cite relevant parts of the trial court’s actual findings.
¶24 Second, TLCAS mistakenly argues that Auto-Owners had
a duty to defend it under the bond contract and it asserts that
Auto-Owners’ settlement with the Stokeses was done in bad
faith. TLCAS’s argument erroneously relies on case law about a
liability insurance company’s duty to defend its insured. Auto-
Owners does not insure TLCAS. Auto-Owners holds a surety
bond for TLCAS and, in consideration for the bond, TLCAS
agreed to indemnify it for any costs incurred relating to the
bond. The indemnity agreement’s language is undisputed and
clear: ‚To completely INDEMNIFY *Auto-Owners] from and
against any liability, loss, cost, attorney’s fees and expenses
20130829-CA 11 2015 UT App 98Stokes v. TLCAS, LLC
whatsoever which [Auto-Owners] shall at any time sustain as
surety or by reason of having been surety on the bond.‛
¶25 Then, TLCAS provides two paragraphs of conclusory
statements attempting to argue that Auto-Owners’ settlement
with the Stokeses was in bad faith and its attorney fees were
unreasonably high because it should not have participated in
trial and pre-trial activities. TLCAS overlooks the fact that Auto-
Owners’ cross claim against TLCAS for enforcement of the
indemnity agreement remained at issue during trial. Moreover,
TLCAS fails to offer any case law to support this proposition.
¶26 Finally, TLCAS’s brief generally fails to meet several as-
pects of rule 24’s requirement that it be ‚presented with
accuracy‛ and ‚free from burdensome *or+ irrelevant . . . mat-
ters.‛ Utah R. App. P. 24(k). For example, TLCAS’s articulation
of the ‚Facts established in the District Court Record‛ differs
significantly from the Findings of Fact made by the trial court. It
often makes assertions contrary to the court’s findings and
portrays those assertions as if they reflected the court’s findings
by citing the trial transcript in support. For instance, TLCAS
states, ‚*TLCAS+ allowed *the Stokeses+ to take the truck,
believing [the Stokeses] would return promptly with payment.
(TR. 239, ll. 9–16). This did not happen. (TR. 237–240).‛ The trial
court, however, clearly found that ‚Mr. and Mrs. Stokes handed
over to Gary Gee approximately $4,500 cash in payment of the
Dodge truck.‛
¶27 Moreover, TLCAS fails to include the court’s findings of
fact and conclusions of law as an addendum to its brief. See Utah
R. App. P. 24(a)(11)(C). Instead, TLCAS attached self-serving
portions of the trial transcript, copies of the truck purchase doc-
uments, and a copy of the Application for Title. TLCAS often
implicitly challenges the court’s findings of fact, but it does not
clearly identify the specific findings it seeks to have set aside,
fails to support the argument with adequate case law, and fails
to marshal the evidence that supports such findings. See id
20130829-CA 12 2015 UT App 98Stokes v. TLCAS, LLC
R. 24(a)(9). This inadequate briefing ‚placed a tremendous bur-
den of factual and legal research on [the court].‛ See Ninow v.
Lowe (In re Estate of Pahl), 2007 UT App 389, ¶ 17, 174 P.3d 642(internal quotation marks omitted). Accordingly, ‚*w+e decline
to assume the role of advocate regarding these remaining con-
tentions.‛ See State v. Honie, 2002 UT 4, ¶ 68, 57 P.3d 977.
Therefore, because of the inadequacies of its brief, TLCAS has
failed to carry its burden of persuasion on appeal.
IV. Conclusion
¶28 The trial court did not err in finding that the signatures on
the Application for Title were forged or in concluding TLCAS
violated the UCSPA. Furthermore, we are not persuaded that the
court erred in finding that the Stokeses paid for the truck and
concluding that TLCAS was liable to Auto-Owners under the
indemnity agreement. The Stokeses and Auto-Owners have
requested attorney fees and costs incurred on appeal. We award
the Stokeses and Auto-Owners their costs pursuant to rule 34(a)
of the Utah Rules of Appellate Procedure. But, as they have
failed to ‚set forth the legal basis for such an award‛ in the
argument, we decline to award attorney fees to the Stokeses and
Auto-Owners. See Utah R. App. P. 24(a)(9).
¶29 We affirm the judgment of the trial court in all respects.
20130829-CA 13 2015 UT App 98