Saturday, November 8, 2008

Increase in the Federal Minimum Wage

The federal minimum wage for covered nonexempt employees is $6.55 per hour effective July 24, 2008. This is important to keep in mind when calculating child support and alimony. Many divorce litigants and their attorneys are not aware that the minimum wage increased from $5.85 to $6.55.

Effective July 24, 2009, the federal minimum wage will be $7.25 per hour.

Sunday, October 12, 2008

What would you change in Utah Divorce Law?

What would you change in Utah Divorce Law? Please share with me your substantive criticism and what you propose be done to remedy the problem(s)?

Allow me to start the process with some criticisms and proposals of my own (these are in no particular order of importance):

1. Simplify the Utah Code sections governing or pertaining to divorce

2. Eliminate contradictory provisions of the Utah Code

3. Eliminate patronizing, paternalistic, parochial provisions of the code

4. Speed the divorce process without sacrificing factual discovery, accuracy, and procedural fairness

5. Get rid of Rule 26(a) and (f) of the Utah Rules of Civil Procedure

6. Get rid of Rule 101 of the Utah Rules of Civil Procedure and have motion practice before domestic relations commissioners follow the procedure of URCP Rule 7.

7. Make it clear that custody evaluations are not mandatory where child custody is at issue.

8. Allow children to testify (sure, impose reasonable restrictions to prevent abuses of this right, but don't completely bar child testimony)

9. Do not force a party who does not want a custody evaluation to pay for any part of one at the commencement of the custody evaluation (sure, reserve the possibility of apportioning costs at trial, if you must).

10. Eliminate mandatory mediation

11. Make the divorce orientation course and the divorce education course for parents available in a cheap or free book form, and eliminate the requirement that one attend it on person.

1. Eliminate appointment of a guardian ad litem unless there is a prima facie showing that the children are abused or in substantial danger of being abused.

1. Enact a presumption that a divorce litigant who seeks divorce on a no-fault basis is rebuttably presumed not to be entitled to seek an award of alimony or any other form of spousal support.

I will touch on each of these in future postings, but again, as I mentioned at the beginning of this posting, I want to know what YOU suggest. No topic is too small or too big, no topic is too obscure or too sacred to be raised. The idea is to generate ideas for improving the divorce process (and improving is not synonymous with "enlarging" or "complicating").

Saturday, September 20, 2008

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board
From Eric K. Johnson
Introductory Note: At the Utah State Bar 2008 Spring Convention in St. George, the Utah Supreme Court announced issuance of Utah Supreme Court Standing Order No. 7 (effective April 1, 2008), establishing a program of “professionalism counseling” for members of the Utah State Bar, overseen by “a board of five counselors (the “Board”) to: (1) to counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) provide counseling to members of the Bar who request advice on their own obligations under the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”).; (3) provide CLE on the Standards; and (4) publish advice and information relating to the work of the Board).
Members of the Board:
Before proceeding further, full disclosure: while I endorse professionalism and civility (in lower case letters), I dislike the “Standards of Professionalism and Civility.” I wrote an article in the Utah Bar Journal on the subject, “Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility.” You can review it on the Utah State Bar’s website at this link:
I realize that there are few who publicly disagree with the party line regarding 1) the alleged sorry state of professionalism and civility in the legal profession; and 2) the proclaimed crucial need for improvement, but I believe my sentiments actually reflect, at least for the most part, the private opinions of most, active attorneys in Utah.
Allow me to clarify my critique of the Standards and the newly created professionalism Counseling Program (and) Board in greater detail by revisiting portions of my article and by posing some questions that the Standards raise in my mind.
The Standards consist of twenty (20) normative, yet aspirational provisions. While I respectfully submit that most of these provisions are duplicative of existing norms governing Utah attorneys and/or sophomoric[1] (See Standard No. 11: “Lawyers shall avoid impermissible ex parte communications”) some are either beyond reproach (See Standards No. 12 and 20) or truisms not worthy or in need of further discussion (or any discussion, come to think of it; see Standard Nos. 2 and 7). Accordingly, I will question only those Standards I perceive to be most substantially flawed and/or accepted without much thought.
Standards 1 and 3
1. Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that clients may have for their adversaries, even if called upon to do so by another. Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.
3. Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.
Is it inherently discourteous, undignified, demeaning or disparaging, hostile, demeaning, humiliating, or otherwise improper:
- to express to opposing counsel your honest belief that his case is frivolous, without merit, or filed or pursued in bad faith?
- to state to opposing counsel your honest belief that her behavior is dilatory, burdensome, unduly expensive, or harassing?
- to tell opposing counsel honestly that if he does not withdraw the false representations in his pleadings you will seek Rule 11 and/or other sanctions?
If so, when did litigators, who chose a profession based on an adversarial system of conflict resolution, become so thin-skinned that arguing—even heated arguing—over such points between them became unprofessional?
How does one address the misconduct of the opposing side without either risking running afoul of Standards 1 and/or 3 or being a wimp?
Where does one man’s honesty and candor become another’s incivility and offensiveness, especially if the ostensibly “offended” party can make hay out of it?
Are Standards 1 and 3 akin to the U.S. Supreme Court Justice Stewart’s standard for identifying hard-core pornography?, i.e., “I know it when I see it.”[2] If not, then what is it?
Won’t the Professionalism Counseling Program Board take every complaint it receives and lavish on each one “serious” and “careful” consideration merely by virtue of its being made?
You know what I mean: to avoid being labeled insensitive or inattentive to the supposedly wretched state of professionalism and civility in the profession[3] and to justify the Board’s existence, won’t you feel compelled to treat everything but the most obvious and petty alleged affronts as worthy of solemn consideration? And how will you then resist the temptation to view every situation with self-righteous 20-20 hindsight and offer advice as to how the accused “might have handled the situation better” irrespective of whether you conclude he/she violated a Standard?
While quotations such as, “Credibility is often directly tied to civility and professionalism”[4] sound Lincolnesque, they are as misleading as “Perception is reality.” Credibility is a matter of being honest and reliable; one can be a boorish jerk, yet be perfectly credible. By the same token, “killing them with kindness” is still murder, albeit with a healthy dose of civility.
If you are angered or wronged by a fellow attorney or the actions of her client, what are you to do?[5] Hug it out? Mediate? Increasingly, if you are frustrated and correspond with counsel to express that frustration or outrage, you are dismissed as uncivil and/or unprofessional (or Thomas Paine). Where lawyers (particularly litigators) operate within an adversarial system civility frequently must take a back seat to the messy, intransigent pursuit of truth and justice.
The way to diminish and marginalize you and dismiss your message these days is to label you uncivil. Labeling one uncivil is a clever, effective, and virtually effortless way to destroy ones message, or at least divert attention from the message to the messenger. One successfully painted as uncivil is seen (or not seen at all, as the case may be) as a mindless savage not worthy of consideration.[6]
One need only call a fool a fool to be attacked for being an uncivil extremist.[7]
Standard 4
4. Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to create a "record" that has not occurred.
How can one ever effectively and reliably determine/conclude that opposing counsel “knowingly”:
1) attributed to other counsel a position or claim that counsel has not taken?; or
2) sought to create an unjustified inference that other counsel took a position or claim that counsel has not taken?
Just try to call opposing counsel on this during a hearing or in a memorandum and see how the judge reacts, you arrogant, whiney, upstart.
And even if you were to prove such misconduct, what are the odds of that attorney being effectively sanctioned (as opposed be being merely “counseled”) for it? After all, don’t you now have Standards 3 and 5 to contend with when contemplating making a complaint?
Standard 5
5. Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.
Isn’t it hard enough to earnestly seek and obtain seek sanctions for any proper purpose without Standard 5 throwing up additional barriers?
If you add to the sorry state of doormat attorneys the new rule of Standard 5, do you not provide but more defenses for the hacks? Imagine this not so hypothetical scenario:
“Your Honor, opposing counsel’s request for sanctions on the ground that I counseled my client to lie under oath are lightly sought and for an improper purpose, in violation of Standard 5. Unless he can prove otherwise, I ask that the request for sanctions be dismissed and opposing counsel admonished for disparaging and humiliating me in violation of Standard 3.”
How would you handle such a situation, were you the judge?
I’ll tell you (because I’ve experienced similar situations, as I am sure many of us have): you would likely do very little.
Would you not hesitate, if not outright refuse, to stick your neck out, call a spade a spade, or take a position as to which attorney was in the wrong, and admonish and/or sanction the wrongdoer?
Or would you instead (be honest), on the pretext of maintaining that ever-so-paramount image of impartiality and detachment:
1) admonish both attorneys equally for being unprofessional—and even then not for inappropriate behavior, but for simply not getting along and causing you to address thorny matters you’d prefer to avoid?;
and then
2) direct both attorneys not to bring their “personal disputes” before you?;
and then
3) make it clear to the poor attorney who had the guts to complain that he’d think twice before ever seeking redress before you again?
If so, how will your approach as Board members differ from that of the hypothetical judge, who is right there in the thick of it, but refuses to take any substantive action to remedy the problem?
Standard 6
6. Lawyers shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.
How and why did the second clause of this Standard arise?
Can you give me an example of a promise or agreement that one could objectively identify as “reasonably implied by the circumstances or by local custom?”
Quick, within 30 seconds, can you:
- describe any “commitment reasonably implied by local custom?”
- identify any “local custom” by which “commitments are reasonably implied”?
If an attorney who is not a local does not infer what the local customs are, is she nevertheless bound by “commitments reasonably implied by local custom” and worthy of admonition if she inadvertently does not follow them? What if she deliberately rejects them as provincial or obsolete?
While the second clause of Standard 6 is well-meaning, isn’t it so amorphous and subjective as to:
1) the equivalent of “I know it when I see it?,” and as a consequence,
2) have the same normative force, i.e., virtually none?
Finally, when do “commitments reasonably implied by the circumstances or by local custom” hold sway over the universal and mandatory provisions of statutes and rules?
Standard 9
9. Lawyers shall not hold out the potential of settlement for the purpose of foreclosing discovery, delaying trial, or obtaining other unfair advantage, and lawyers shall timely respond to any offer of settlement or inform opposing counsel that a response has not been authorized by the client.
Can any new rule or combination of rules ever do away with this time-tested trick?
Would any savvy attorney suggest that an offer of settlement was used against him to hold up discovery or delay trial?
Would any judge take seriously an allegation that Settlement (the all-important objective of litigation in the 21st century) could ever be broached for any improper purpose?
Doesn’t the potential for a legitimate settlement—no matter how remote it may be—always exist? Who has the guts to brand a settlement offer a sham (after all, if you do that, aren’t you violating Standards 1 and 3)?
Thus, even in the most hotly contested matters is it not virtually impossible to show a lawyer held out the potential of settlement for illegitimate purposes?
Isn’t a violation of Standard 9, as with the other Standards, on a practical basis virtually impossible to identify, much less sanction?
I mean really, who would ever accuse another lawyer of acting unprofessionally because he offered to settle? The complainant would catch more heat than the attorney complained of, no?
Standard 10
10. Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy basis for not doing so.
Can you find the “obvious” flaw in this rule that renders it all but completely impotent? This is not a rhetorical question.
Standard 13
13. Lawyers shall not knowingly file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel's opportunity to respond or to take other unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer's unavailability.
Should an attorney ever be formally admonished under the Standards for following the letter of the law? If so, what effect would such a policy have on respect for the rules? How can one fairly be found at fault for following the letter of the law?
Furthermore, if compliance with rules constitutes “incivility” or unprofessional conduct what does that mean for the rule of law generally?
Are we to place civility above compliance with and enforcement of court rules and the law? If so, to what degree and to what end?
Standards 14 and 15
14. . . . Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.
15. . . . Lawyers shall never request a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments.
“Lawyers shall never request an extension for the purpose of delay or tactical advantage?” Yeah, right. And throwing cigarette butts on the ground is littering. Which of these offenses—littering or violating Standard 14 and/or 15 is likely to be punished first?
(And did you notice the peculiar wording of Standard 14: “Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.” So does this mean that if you have a legitimate reason for seeking an extension you can tack on delay and/or tactical advantage? Why include “solely” in the wording at all?)
Have you ever asked an attorney claiming to have a scheduling conflict to provide corroborating evidence of the scheduling conflict? Most of you will probably answer, “No.” But why?
I’ll tell you why: because a convention has arisen that if an attorney claims a scheduling conflict, we are to accept it as gospel, and somewhere along the line it became received wisdom challenging a claimed scheduling conflict is worse than exploiting a fellow attorney’s good will by lying about a scheduling conflict.
Now many (if not all) of us know when we’re being hustled by a chronic scheduling-conflict-claiming shyster, but we’ve been taught (or more accurately, shamed into accepting) that challenging a request for an extension is worse than simply giving in and granting continuance after ill-gotten continuance. What principled basis is there for this?
Unless a lawyer is willing to ferret out false claims of need for extensions or schedule changes, are Standards 14 and 15 are of any practical benefit anyway?
Standard 16
16. Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely affected.
(Actually, a comment first: To its credit, here’s a standard that, if violated, has at least a better than even a chance of being proven it was violated.)
What’s so terribly wrong about defaulting a party worthy of default, and doing so without flagging the inattentive opposing attorney?
Besides, Rule 4 of the Utah Rules of Procedure already provides, in subparagraph (c)(1):
The summons . . . shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant.
(emphasis added)
Why, when Rule 4 already mandates notice to the defendant of the possibility of default, was it felt necessary to create essentially another notice requirement with Standard 16?
Additionally, does Standard 16 create a possible conflict between it and Utah Rules of Civil Procedure, Rule 55, which contains no requirement that notice be given to opposing counsel in advance of seeking default?
If so, why not repeal Standard 16 and amend Rule 55 to include a notice provision?
Moreover, wouldn’t obeying Standard 16 basically allow an ethically bankrupt opposing side to delay proceedings by failing to participate in the case and relying on the opposing attorney’s Rule 16 obligation of “notifying other counsel,” in advance, at which point the scheming “lazy” attorney finally files his responsive pleading so that the case is decided on the precious merits?
Rule 55 is already honored in the breach. Did we really need to eviscerate it even more with Standard 16?
Standards 17, 18, and 19
17. Lawyers shall not use or oppose discovery for the purpose of harassment or to burden an opponent with increased litigation expense. Lawyers shall not object to discovery or inappropriately assert a privilege for the purpose of withholding or delaying the disclosure of relevant and non-protected information.
18. During depositions lawyers shall not attempt to obstruct the interrogator or object to questions unless reasonably intended to preserve an objection or protect a privilege for resolution by the court. "Speaking objections" designed to coach a witness are impermissible. During depositions or conferences, lawyers shall engage only in conduct that would be appropriate in the presence of a judge.
19. In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.
With respect to Standards 17 through 19, lawyers are already subject to provisions of the Utah Rules of Civil Procedure, the Utah Rules of Evidence, and even the Utah Code when engaging in the discovery process, and these rules already arguably prescribe the same conduct (and proscribe misconduct) for which Standards 17 through 19 were promulgated, do they not?
Moreover, would you not agree that Standards 17 through 19, like the rules of civil procedure and evidence, are so vulnerable to self-serving interpretation and construction that promulgating even more subjective rules on discovery abuses will do nothing more to curtail discovery abuses than the Rules of Civil Procedure and the Rules of Evidence already do (or don’t, as the case may be)?
I’ve seen attorneys rail against those who serve 26 interrogatories, who serve 80 requests for admission, and request a copy of a party’s driver license (front and back). Who’s right? Who’s wrong? Is it a question of deciding on a case by case basis? If so, then what good are general standards in a case-by-case setting?
And just what is an “artificially restrictive manner” anyway? Is that Justice Stewart I hear?
This new Professionalism and Civility Board is one of those things that every attorney will agree is needed, but for other attorneys, not for themselves. Such sentiments give rise to a stone thrower’s paradise. Am I wrong? Let me know if and when a member of the Bar complains of himself to the Board.
With due respect, yet candidly, any time anything is organized for “others’ benefit” (read: “Well, guys, how can we describe ourselves and our purpose without using the term ‘busybodies’?”[8]) you’re—we’re—in trouble.
I’ve gone on record before, and I’ll state it again:
“In reviewing the Standards of Professionalism and Civility, I see no pre-existing need that is filled by their passage, no flaw in the existing rules of professional conduct that the Standards remedy.” (Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility, Utah Bar Journal, June 2005)
The same can be said of the Board.
“Most, if not all, of the Standards, as currently constituted, do little to lead good lawyers or bad lawyers to be any better than they would have been in their absence. In this regard the Standards of Professionalism and Civility do little to address or cure any lack of professionalism and civility in the profession.” (Id.)
The same can be said of the Board. There’s no point in sugar-coating it.
Why is all this attention being focused on professionalism and civility when there are so many other issues more worthy of our attention as lawyers? I could contend (sincerely) that the fashion sense of Utah attorneys is deplorable and needs to be addressed and rehabilitated by having the Supreme Court and/or Bar establish:
a program of “dress and grooming counseling” for members of the Utah State Bar, overseen by “a board of five stylists to: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals from judges of attorneys who wear belts with suspenders (ahem—braces), brown shoes with blue suits, too much perfume, fishnet stockings, etc.; (2) provide counseling to members of the Bar who request advice on their own fashion blunders; (3) provide CLE on contemporary tie widths and hairstyles; and (4) publish advice and information relating thereto.
I mean, come on. Some “problems” are best left to themselves because the cure is worse (or at least no better) than the disease. And just as it won’t kill me if I see another crew neck sweater and tie combination, will the profession really suffer a fatal blow if I criticize or disagree in the strongest terms without fear that it will be taken as disrespect or a personal attack?
In all seriousness, the Standards of Professionalism and Civility are about as effective a means of fostering the principles of Professionalism and Civility as are warning labels on cigarettes as a means of discouraging smoking. Professionalism and Civility problems do not stem from a lack of rules or counseling, for Pete’s sake.
If your best solution to the perceived professionalism and civility problem—and such a “problem” is insoluble on so many levels—turn your attentions and energies toward more pressing and substantive matters. Before we get any more caught up in professionalism and civility concerns, let’s focus on justice and equity for all first, and then see how much attention professionalism and civility still need.

[1] To borrow from the field of intellectual property, I utilize this word as “merely descriptive” and not for any other purpose. I considered “oxymoronic” in place of “sophomoric,” but that term does not express the full, precise meaning I wish to convey.
[2] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
[3] On what objective evidence does everyone who bemoans the professed decline of professionalism and civility base their conclusion?
[4] Peters v. Pine Meadow Ranch Home Ass'n,
151 P.3d 962, 967 (Utah 2007).
[6]; Peters v. Pine Meadow Ranch Home Ass'n,
151 P.3d 962(Utah 2007).
[8] Please don’t take this personally, Board (your intentions are pure, but your means are wanting). If you do, such is an indictment of the Standards of Professionalism and Civility. If satire is deemed violative of the Standards, then satire and the Standards cannot co-exist, and one must be discarded. Don’t let the door hit you on the way out, Standards.

Tuesday, July 29, 2008

Break Your Engagement, Win $150,000? Not Likely in Utah.

Recently, I came across the following news item (a good summary of which is found at

In what sounds like the plot of a Julia Roberts movie, a jury in Georgia this week awarded a woman $150,000 after she sued her fiancé for breaking off their engagement three days before the wedding.

Adding insult to injury, the groom-to-be, Wayne Gibbs, informed his intended, RoseMary Shell, of his decision by leaving her a note in the bathroom.

Shell said she left her friends and a $81,000-a-year job in Florida to move to Georgia to be with Gibbs, and that she also suffered emotionally since the wedding was called off last year.

Speaking to Meredith Vieira on Friday's Today show, where she appeared with her attorney Lydia J. Sartain, Shell refuted Gibbs's claim that she was swimming in debt. The allegation, she said, is "simply not true."

While Gibbs did not appear on Today, his attorney, Hammond Law, reportedly told jurors in his closing arguments for the breach-of-contract suit: "You would be sending the message that if you have a dispute with somebody and you think they have been a scoundrel, go get a lawyer and hope the Brink's truck backs up to the jury room."

He added, "If you award one penny, you're saying, 'File frivolous lawsuits.' "

So what impact might the RoseMary Shell case have on Utah? Not much. Her verdict is not likely to be as well received in Utah as it was in Florida. Utah, as well as other states, has abolished the cause of action for breach of promise to marry. See the Utah case of Hess v. Johnston (not cited in its entirety) below.

Court of Appeals of Utah.

Layne D. HESS, an individual, Plaintiff, Appellant, and Cross-appellee,
Jody JOHNSTON, an individual, Defendant, Appellee, and Cross-appellant.

No. 20060497-CA.

June 21, 2007.
Rehearing Denied July 12, 2007.

163 P.3d 747, 580 Utah Adv. Rep. 29, 2007 UT App 213

Plaintiff Layne D. Hess appeals the trial court's order dismissing his complaint, with prejudice, for failure to state a claim upon which relief can be granted, see Utah R. Civ. P. 12(b)(6). Defendant Jody Johnston cross-appeals, arguing that the trial court committed error when it denied her motion for sanctions under rule 11 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 11. We affirm.


Hess and Johnston started dating in mid-April 2004 and within three months, they decided to marry. Johnston found an engagement ring she liked, and Hess commissioned a jeweler to craft one like it. The couple planned to marry sometime in November 2004, but mutually decided that they would take their time in planning the wedding to ensure their finances were in order.

About this time, Johnston told Hess that, during their engagement, she wanted to go on some trips and wanted Hess to have a vasectomy . Hess complied with these requests. Hess began by paying for the couple to take a seven-day cruise to Alaska at the end of July. In August, Hess underwent the vasectomy procedure requested by Johnston. And in September, after Johnston expressed an interest in traveling to France to introduce Hess to friends she had met while living there years earlier, Hess paid for the couple to travel to France for three weeks. Before leaving on the trip, Hess paid the balance on the custom engagement ring so that he could present Johnston with it while in France. After returning from France, Hess and Johnston twice rescheduled the wedding, first, from November 2004 to May 5, 2005, and then to July 9, 2005. In October 2004, Johnston also asked Hess to help purchase a vehicle for her son. Hess contributed $2400 toward the automobile.

In late April 2005, without any forewarning or explanation, Johnston returned the engagement ring to Hess and informed him that she would not be his wife. Hess attempted, numerous times, to obtain an explanation from Johnston, but she refused to offer any excuse for breaking off the engagement.

In November 2005, Hess brought suit against Johnston seeking restitution under four different legal theories: (1) conditional gift, (2) unjust enrichment, (3) promissory estoppel or reasonable reliance, and (4) breach of contract. Central to all the claims is the argument that but for Johnston's promise to marry him, Hess would not have paid for the engagement ring, the Alaskan cruise, the trip to France, or the vehicle for Johnston's son. Hess sought restitution in the form of reimbursement for Johnston's portion of the travel expenses, the medical costs of the vasectomy and a reversal procedure, the money given toward the vehicle, and the difference between the purchase price of the engagement ring and its eventual sale price. In response, Johnston sought sanctions under rule 11 of the Utah Rules of Civil Procedure and moved to dismiss the complaint, with prejudice, for failure to state a claim upon which relief can be granted. The trial court denied the motion for sanctions but dismissed the complaint on the ground that Utah has abolished the common law cause of action for breach of a promise to marry. Both parties appeal.

* * * * *

Johnston argues that Jackson v. Brown, 904 P.2d 685 (Utah 1995), clearly abolished the cause of action for breach of a promise to marry, including claims of the type asserted by Hess. Therefore, she reasons that sanctions were proper because, given the settled state of the law, Hess would not have brought his claims had he first made the reasonable inquiry required by rule 11.2 We disagree. First, we begin by noting that “the reasonable inquiry analysis does not hinge solely on whether the law is clear. [Instead, t]he focus should be on what the attorney actually did in researching the law.” Barnard, 846 P.2d at 1236-37. Second, and perhaps more importantly, we disagree with Johnston's contention that Jackson clearly bars Hess's claims. Instead, we read Jackson as expressly acknowledging the possibility that some economic claims arising out of a failed engagement may still be viable.

In Jackson, the Utah Supreme Court examined the common law cause of action for breach of a promise to marry. See 904 P.2d at 686-87. In abolishing that claim from Utah's common law, the court first examined the history of the cause of action, noting that it “arose over four hundred years ago,” when marriage was viewed primarily as an economic transaction. Id. at 686. Because of the economic nature of matrimony, the cause of action for breach of promise provided an economic remedy to persons who had relied to their detriment on a recanted promise of marriage. See id. The court noted, however, that over time “American marriage customs ha[ve] so changed as to be totally unlike those prevailing when breach of promise first became actionable.” Id. The court reasoned that because modern concepts of marriage focus primarily on emotion-not economics-the breach of promise cause of action had lost its historical moorings such that “an action developed to remedy the economic losses resulting from the withdrawal of a marriage promise ... [was being] used in this day and age to redress the emotional losses that follow[ed].” Id. at 687 (emphasis added). The supreme court found this use of a breach of promise claim antithetical to modern policy considerations and held that the cause of action was no longer “the proper vehicle” to recover for emotional damages where the “losses complained of are pride, love, and esteem.” Id. Rather, the court held that recovery for emotional damages was properly pursued only through a claim for intentional infliction of emotional distress and only if the strict elements of such a claim could be established. See id. at 687-88.

Despite abolishing the cause of action for breach of a promise to marry, the Jackson court specifically left open the question of whether economic damages arising from a broken engagement could ever be recovered under alternate legal theories. All the justices agreed that, despite abolishing the cause of action for breach of a promise to marry, “no injury to a plaintiff, upon proper showing, goes unremedied.” Id. at 687. A majority of the court, however, postponed deciding which legal theories would support recovery of economic damages stemming from a broken engagement. See id. at 688 (Stewart, J., concurring, joined by Zimmerman, C.J. & Russon, J.) (stating that the issue of what theories would support a recovery of economic damages “should be addressed ... only when it is properly presented to [the c]ourt and properly argued by the parties”). Alternatively, Justice Durham, joined by Justice Howe, anticipated the question and suggested that “any economic losses suffered because of [plaintiff's] reasonable reliance upon [defendant's] promise to marry ... may be recoverable under a theory of reasonable reliance or breach of contract.” Id. at 687 (Durham, J., concurring, joined by Howe, J.).

Because Jackson did not clearly foreclose claims for purely economic damages, we cannot say that Hess's reading of the law, alone, supports the conclusion that he did not make a reasonable inquiry into the claims, defenses, and other legal contentions contained in the complaint. Rule 11 does not “require the attorney to reach the correct legal position from the research. It is enough that the attorney's reading of the law is a reasonable one.” Barnard, 846 P.2d at 1236. Therefore, we affirm the trial court's denial of Johnston's motion for rule 11 sanctions.

II. Failure to State a Claim

Despite finding that Jackson does not clearly bar his claims, we nonetheless affirm the trial court's dismissal of Hess's complaint because the facts as alleged cannot support recovery under any of the theories pleaded. Cf. Griffith v. Griffith, 1999 UT 78, ¶ 8, 985 P.2d 255 (affirming on alternative grounds).

A. Conditional Gift

Assuming, without deciding, that Utah would allow recovery of engagement gifts under a theory of conditional gift, Hess's claims fail as a matter of law because he has not alleged facts that could establish that the travel, vasectomy,3 or money for the vehicle were conditioned on the marriage taking place.4 Instead, Hess urges this court to adopt the position that any gift given during the engagement period carries an implied condition of marriage. We decline to do so. If we were to imply a condition on all gifts given during the engagement period, every gift would be recoverable regardless of the size, cost, significance, or nature of the gift, and without regard to the surrounding circumstances under which the gift was given.

Surely, the donor will give some gifts during the engagement period that are intended as absolute gifts. However, with an implied condition, the donor would have to expressly indicate that he does not expect the gift back in order to make an absolute gift .... turn[ing] traditional gift law on its head.

Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 26.

Because we do not accept Hess's contention that all gifts given during the engagement period carry an implied condition of marriage, and because “one asserting the delivery [of a gift] was made on some condition ... has the burden of establishing such condition” as an element of recovery under a conditional gift theory, Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990), we examine Hess's complaint for allegations that could support his contention that the gifts were conditional.

Hess's complaint states that, in retrospect, Hess would not have made the expenditures but for Johnston's promise to marry him. But this assertion, relying on hindsight, even if true, is not sufficient to establish that the gifts were conditioned on the marriage taking place. “Whether a gift is conditional or absolute is a question of the donor's intent, to be determined from any express declaration by the donor at the time of the making of the gift or from the circumstances.” 38 Am.Jur.2d Gifts § 72 (1999) (emphasis added).

Here, Hess's complaint fails to include any facts that could demonstrate, either expressly, by the circumstances, or by the nature of the gifts that his intent was to condition the gifts on the marriage taking place. Cf. Mace v. Tingey, 106 Utah 420, 149 P.2d 832, 834 (1944) (evaluating “the intention of the donor, the situation and relationship of the parties, the kind and character of the property, and the things said, written or done” in determining whether an irrevocable gift was given (emphasis omitted)). First, Hess does not allege that he expressly conditioned the gifts when he gave them. Second, the alleged circumstances existing at the time the gifts were made do not imply that the gifts were conditional. See, e.g., Maiorana v. Rojas, 787 N.Y.S.2d 678, 3 Misc.3d 1107, No. 94988KCV2003, 2004 WL 1258073, 2004 N.Y. Misc. LEXIS 669 (N.Y. Civ.Ct. June 3, 2004) (concluding that ring was not conditional gift when circumstances showed it was given on donee's birthday). But see, e.g., Fanning v. Iversen, 535 N.W.2d 770, 772 (S.D.1995) (holding that circumstances surrounding gift of money implied a condition of marriage where check memo indicated money was for wedding expenses). When evaluating the circumstances surrounding the gift, some jurisdictions will examine the purpose of the gift and inquire whether that purpose can be achieved only by the marriage taking place. See, e.g., Wagener v. Papie, 242 Ill.App.3d 354, 182 Ill.Dec. 417, 609 N.E.2d 951, 953-54 (1993) (examining circumstances surrounding gift/sale of family home to future son-in-law and finding that purpose of gift-to use home as marital home-would be frustrated when the marriage did not ensue); Cooper, 155 Ohio App.3d 218, 800 N.E.2d 372, at ¶¶ 25-27, 32 (finding gift of improvements to the donee's home were not conditional where donor “merely presumed” but did not articulate the intention that they would live in the improved home after they wed); Restatement of Restitution § 58 cmt. c & illus. 5 (1937) (noting that the gift of a car to a putative future son-in-law for the purpose of a honeymoon road trip may be recoverable because the purpose may only be achieved if the marriage ensues). Here, the facts alleged cannot support the conclusion that the purposes of the gifts were frustrated when the wedding did not take place. The complaint states that the purpose of the Alaskan cruise was to travel for pleasure before the wedding. The same purpose applied to the Paris trip, which also had the added purpose of allowing Johnston an opportunity to introduce Hess to her friends. The vasectomy was for the purpose of mutuality in birth control.5 And, the gift of money to Johnston's son was for the purpose of allowing him to purchase a vehicle. All of these purposes were achieved despite the fact that the parties did not marry. Thus, Hess's complaint fails to state any facts that suggest the circumstances surrounding these gifts implied they were conditioned on the marriage.

Finally, the nature of the gifts does not give rise to an inference that they were inherently conditional. Some jurisdictions have recognized that gifts, like engagement rings, carry with them an implied condition of marriage due to the inherent symbolism of the gift. See, e.g., Fierro, 465 N.W.2d at 671 (“The inherent symbolism of [an engagement ring] forecloses the need to establish an express condition that marriage will ensue.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) (“[E]ngagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage.”); see also Restatement of Restitution § 58 cmt. c (noting that a donor may be entitled to restitution “if the gift is an engagement ring, a family heirloom or some other thing intimately connected with the marriage”). Here, the nature of the gifts-trips, a vasectomy, and cash given to a third party-carry no inherent inference that they were conditioned on the marriage.

Thus, even if Utah recognized recovery under a theory of conditional gift, which we do not decide today, Hess's claim for recovery would be barred because none of the alleged facts support the conclusion that at the time he made the gifts, he did not intend for them to take effect until the marriage ensued. Instead, the facts alleged in the complaint can only be read to support the conclusion that Hess intended an unconditional gift. We do recognize that the alleged facts suggest that the reason Hess gave the unconditional gifts was because he and Johnston were engaged. However, the reason for a gift should not be confused with a donor's intent that the gift be revokable. “ ‘Many gifts are made for reasons that sour with the passage of time.’ Unfortunately, gift law does not allow a donor to recover/revoke an inter vivos gift simply because his or her reasons for giving it have ‘soured.’ ” Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at ¶ 25 (quoting Albanese v. Indelicato, 25 N.J. Misc. 144, 51 A.2d 110 (1947)); see also Restatement of Restitution § 58 (1937) ( “A person who has conferred a benefit upon another, manifesting that he does not expect compensation therefor, is not entitled to restitution merely because his expectation that an existing relation will continue or that a future relation will come into existence is not realized, unless the conferring of the benefit is conditioned thereon.”). We therefore affirm the trial court's dismissal of Hess's cause of action for recovery under a theory of conditional gift.

B. Unjust Enrichment

Hess's complaint does not allege facts sufficient to sustain a claim for restitution under a theory of unjust enrichment. To state a claim for unjust enrichment, a plaintiff must allege facts supporting three elements: “(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” Jeffs v. Stubbs, 970 P.2d 1234, 1248 (Utah 1998) (quotations omitted). Although Hess has pleaded facts that support the first two of these elements, his complaint fails to allege facts that can support the conclusion that it would be inequitable for Johnston to retain the benefits of the gifts without payment.

Unjust enrichment occurs when a person has and retains money or benefits that in justice and equity belong to another; however, “[t]he fact that a person benefits another is not itself sufficient to require the other to make restitution.” Fowler v. Taylor, 554 P.2d 205, 209 (Utah 1976). Money or benefits that have been “officiously or gratuitously furnished are not recoverable.” Jeffs, 970 P.2d at 1248 (quotation omitted). A person acts gratuitously when, at the time he conferred the benefit, “there was no expectation of a return benefit, compensation, or consideration.” Id. at 1246. As previously discussed, Hess's complaint fails to allege that, at the time the vacations, vasectomy, and money for the vehicle were given, he intended anything other than an unconditional gift. “[E]nrichment of the donee is the intended purpose of a gift, [therefore,] there is nothing ‘unjust’ about allowing [the donee] to retain the gifts she received ... in the absence of fraud, overreaching or some other circumstance.”6 Cooper, 155 Ohio App.3d 218, 800 N.E.2d 372, at ¶ 15. Thus, the benefits were gratuitously bestowed on Johnston, and the trial court properly dismissed Hess's unjust enrichment claim.

C. Promissory Estoppel7

Like unjust enrichment, promissory estoppel is an equitable remedy and should be employed where injustice can be avoided only by enforcement of the promise. To state a claim for promissory estoppel, Hess must allege four elements:

(1) [t]he plaintiff acted with prudence and in reasonable reliance on a promise made by the defendant; (2) the defendant knew that the plaintiff had relied on the promise which the defendant should reasonably expect to induce action or forbearance on the part of the plaintiff or a third person; (3) the defendant was aware of all material facts; and (4) the plaintiff relied on the promise and the reliance resulted in a loss to the plaintiff.

Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 16, 158 P.3d 1088 (quotations omitted). Here, Hess has failed to allege facts that would support the first element, that he acted with prudence and reasonable reliance on Johnston's promise to marry.

A promise to marry is unique in that it is not generally considered enforceable, but instead is made for the purpose of “allow[ing] a couple time to test the permanency of their feelings.” Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct.App.1990). Thus, the fact that the engagement period is, in essence, a test period makes reliance on the promise of marriage inherently problematic because “[w]hen either party lacks ... assurance, for whatever reason, the engagement should be broken.” Id.; see also Jackson v. Brown, 904 P.2d 685, 687 (Utah 1995) (“It is certainly the policy of the state to uphold marriage vows. However, we see no benefit in discouraging or penalizing persons who realize, before making these vows, that for whatever reason, they are unprepared to take such an important step.”).8 This is especially true when, as here, the couple had not even set an actual date for their nuptials.9 Cf. Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky.1999) (holding that recovery was unavailable because where no wedding date is set, the plaintiff could not “affirmatively demonstrate the parties' final and serious intent to enter into marriage”). Without foreclosing the possibility that, in some instances, the acts undertaken in reliance on a promise of marriage can be so intertwined with the promise itself that reliance may be reasonable,10 in this instance, Hess's complaint fails to allege facts that can support the conclusion that he was acting prudently and reasonably on Johnston's promise of marriage. All that can be inferred from the facts alleged in the complaint is that Hess made several irrevocable gifts during the engagement period. Thus, this is not a situation where “injustice can be avoided” only by awarding restitution damages, Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1077 (Utah 1998), and Hess's promissory estoppel claim fails as a matter of law.

Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct.App.1990).

D. Breach of Contract

Similarly, even assuming without deciding that Jackson v. Brown, 904 P.2d 685 (Utah 1995), does not preclude a claim for breach of contract based on reciprocal promises to marry, Hess's claim fails because his allegations cannot support a conclusion that the damages were causally related to the breach.

Hess does not allege that Johnston made any promise to repay him if the marriage did not ensue; she never promised to pay for half of the travel, or to bear the cost of the vehicle herself. The only promise Johnston made was to marry Hess. Thus, in order to recover general damages, Hess would be required to show that the damages or injuries he sustained “flow[ed] naturally from the breach” of that promise. Machan v. UNUM Life Ins. Co. of Am., 2005 UT 37, ¶ 15, 116 P.3d 342 (quotations omitted). Or, to recover consequential damages, Hess must demonstrate that the damages he sustained were “reasonably within the contemplation of, or reasonably foreseeable, by the parties at the time the contract was made.” Id. (quotations omitted). Under the circumstances of this case, none of the allegations show how restitution for gifts of travel, a vasectomy, and money to a third party flow naturally from a breach of a promise to marry or were reasonably contemplated by the parties at the time they decided to wed. As previously discussed, none of these gifts or the circumstances under which they were given suggest that they were in any way conditioned on the promise to marry being fulfilled. Additionally, neither the travel, the vasectomy , nor the gift of money to Johnston's son were preparatory acts required to be performed under the contract to marry. To hold otherwise would give rise to a claim for breach of contract-albeit for economic damages instead of emotional damages-“any time a person, for whatever reason, cancels or indefinitely postpones wedding plans.” Jackson, 904 P.2d at 687. This result is clearly “contrary to the public policy of this state” because “such an action [would] be readily amenable to abuse [and] would discourage individuals with legitimate doubts or concerns about a planned wedding from cancelling the event.” Id. Therefore, Hess's claims for restitution under a breach of contract theory were properly dismissed as a matter of law.


Rule 11 sanctions are inappropriate where, as here, counsel's interpretation of existing law is reasonable and there is no other evidence demonstrating counsel's failure to make a reasonable inquiry required by rule 11. Therefore, the trial court's denial of Johnston's motion for sanctions was proper. It was also proper for the trial court to dismiss Hess's complaint because the facts alleged could not support recovery of restitution under any of the grounds pleaded.


1In considering the correctness of an order dismissing a complaint, we assume the truthfulness of each of the facts alleged by plaintiff. See Oakwood Vill. L.L.C. v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226.

2Because Johnston's argument raises a question of law, we review it for correctness under the second tier of the rule 11 standard of review. See Barnard v. Sutliff, 846 P.2d 1229, 1236 (Utah 1992) (reviewing, for correctness, whether existing law was clear such that attorney's decision to proceed with claims demonstrated a failure to make a reasonable inquiry under rule 11).

3Under the facts of this case, it is not necessary to address whether a vasectomy, undertaken by one person in a relationship, can ever be a “gift” to the other person in the relationship.

4We note the possible exception of the engagement ring. See, e.g., Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa Ct.App.1990) (“An engagement ring given in contemplation of marriage is an impliedly conditional gift.”); Heiman v. Parrish, 262 Kan. 926, 942 P.2d 631, 634 (1997) ( “Once it is established the ring is an engagement ring, it is a conditional gift.”). However, because Johnston returned the ring, Hess received back exactly that which he gave. Consequently, he has already received restitution, and this court need not address whether the gift of an engagement ring carries with it an implied condition of marriage requiring its return when the wedding does not ensue.

5Johnston had already undergone a tubal ligation, but remained concerned about the possibility of pregnancy.

6Hess has not alleged that Johnston fraudulently promised to marry him.

7Hess also characterizes his claim for promissory estoppel as a claim of reasonable reliance. We, therefore, treat them together under the rubric of promissory estoppel.

8After all,[w]hat fact justifies the breaking of an engagement? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully learned fact that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen without a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justification is needed. Either party may act. Fault, impossible to fix, does not count.

9Hess does allege that in late 2004 the couple eventually set an actual wedding date for May 5, 2005. However, at the time the trips were taken, the vasectomy was performed, and the money was given to Johnston's son, the couple had not yet set an actual date for a wedding but were, instead, tentatively planning to marry sometime in November 2004.

10As noted in Jackson v. Brown, 904 P.2d 685 (Utah 1995), it may be reasonable, under certain circumstances, to rely on another's promise of marriage when undertaking “normal expenses attendant to a wedding.” Id. at 687. However, we do not reach that question because Hess is not seeking recovery of expenses directly related to a wedding.