Bohman Aggregates LLC v. Gilbert

486 P.3d 77

BOHMAN AGGREGATES LLC, et al.,¹ Appellants,

v.Steve L. GILBERT and Crusher Rental & Sales Inc., Appellees.

No. 20190867-CA

Court of Appeals of Utah.

Filed April 1, 2021

Jerome Romero, Salt Lake City, and Brent A. Bohman, Attorneys for Appellants

Bryan J. Pattison, St. George, and Dana T. Farmer, Ogden, Attorneys for Appellees

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 After hearing opening and closing statements riddled with first-person narrative and personal opinions from a pro se attorney-party-witness, the trial court found that Appellees had been deprived of a fair trial and granted a new trial. Appellants contend that by so ruling, the trial court misinterpreted the Rules of Professional Conduct and abused its discretion. Because we agree with the trial court's rule interpretation, and where the record demonstrates obvious and consistent violations, Appellants fail to show that the trial court abused its discretion in granting a new trial. Therefore, we affirm.

BACKGROUND

¶2 Some years back, Bohman Aggregates LLC assumed control of an ongoing mining operation and, along with it, Crusher Rental & Sales, Inc.’s (Crusher) onsite mining equipment. Eventually, Crusher and Bohman Aggregates initiated negotiations about the rights to the equipment. During this negotiation period, attorney Brent Bohman (Attorney Bohman) assisted with drafting and negotiations. Attorney Bohman was the brother of Bohman Aggregates’ owner and lived on the land Bohman Aggregates used for its mining operation. Allegedly, Attorney Bohman had authority to execute agreements on Bohman Aggregates’ behalf. But the truth about what happened next is clear as mud. Bohman Aggregates (and Attorney Bohman as its representative) and Crusher had disparate ideas about new equipment issuance, various payments, and the proposed contracts’ purpose, meaning, and scope. Despite the parties’ efforts to clarify their contractual relationship, they disagreed about which documents, as potentially informed by other communications, became enforceable contracts and what those supposed contracts even meant.

¶3 The central dispute revolved around a meeting between Attorney Bohman and Steve Gilbert, Crusher's president. Attorney Bohman alleged that at that meeting he signed an agreement and wrote the words "subject to addendum" next to his signature. Attorney Bohman claimed that he "expressly told" this to Gilbert and wrote "subject to addendum" to ensure the contract's "four corners" indicated his conditional acceptance. Gilbert, meanwhile, maintained that the contract itself constituted the entirety of the parties’ agreement. Gilbert claimed that Attorney Bohman snuck "subject to addendum" onto the contract after he left the room. When Attorney Bohman sent an addendum, Crusher rejected it, sent its own proposed addendum, and filed a mining lien against Bohman Aggregates. Bohman Aggregates filed a claim against Crusher, seeking to invalidate the signed agreement. Crusher counterclaimed. And, in this counterclaim, Crusher sued Attorney Bohman personally as part of the joint venture.

¶4 The contract's enforceability, and Attorney Bohman's personal liability, hinged, in large part, on whether Attorney Bohman or Gilbert told the truth about their meeting. Thus, the jury's witness-credibility assessment took front and center in the case. Despite the fact that Attorney Bohman would be a critical witness, he decided to represent himself. Appellees thus expressed concerns, both in a motion and at a hearing held four weeks before trial, about Attorney Bohman abiding by Utah Rule of Professional Conduct 3.4 (rule 3.4 ).² Appellees’ counsel asserted,

My concern is Rule 3.4. As an advocate, [Attorney] Bohman simply can't help himself. ... He gives his opinion; accuses me of things; he calls testimony false, unreputable; my client's a liar; we're acting in bad faith. He cannot help but give his opinion as an advocate. And there's no constitutional right to violate Rule 3.4.

¶5 Attorney Bohman never directly responded to the rule 3.4 concerns (instead arguing about the extent to which his personal defense arguments could overlap with his co-defendants’ arguments). Attorney Jerome Romero (Attorney Romero), who represented all Appellants except Attorney Bohman at trial, joined the discussion, stating, as co-counsel with Attorney Bohman, "We understand Rule 3.4."³

¶6 Although the trial court denied a motion to disqualify Attorney Bohman from representing himself, during the motion hearing it warned,

I'm also going to make a general caution to all counsel in this case, particularly in as much as issues of credibility have become a fairly substantial focus in this matter. And that is a very severe caution against any conduct by counsel that would vouch for the credibility or suggest a lack of credibility of any witness or party in the case.

Counsel may ask questions, but questions or determinations of credibility are ultimately questions for the jury. And if an attorney, in argument, argues that "This witness should be believed over some other witness" or "I believe this witness" or "I've worked with this witness for years and he's credible and you should believe him because I believe him," any conduct like that will result in a mistrial. That is absolutely prohibited.

The court explained that the parties would be able to juxtapose testimony and invite the jury to consider witness credibility but reiterated that "counsel may not cross that line to express a personal opinion as to the credibility of any witness." The attorneys did not object nor seek any clarification. Again, the trial court repeated the warning: "And so it is abundantly clear, if that happens, the Court will declare a mistrial." Once more, the trial court warned that such conduct "needs to be significantly guarded against ... [and] simply cannot occur." Finally, the trial court made clear that its instruction was "on the record, [and] if that happen[ed], the consequences [would] be as indicated."

¶7 With the scene set, by both the Utah Rules of Professional Conduct and the trial court's unequivocal statements, Attorney Bohman pursued his course of self-representation in a case where he would also serve as a critical witness. He began his opening statement boldly:

I've been living this case for three years, and I think I have a hard time listening to it. I always used to tell my clients when I practiced law full time that I, as a lawyer, will never know the case as well as they do. And having been sued for the first time as an individual, I find that experience and statement to be true.

He continued,

Let me be as clear as I can possibly be. At no time was I ever an owner of the mining operations being conducted at Bohman ranch.... [But] [m]y claim to fame is that I live on the ranch. And given that [my brother] doesn't live there, I became [his] eyes, I became his ears, and I was asked to perform specific tasks from time to time on his behalf, which I did. As members of a family, you do things for each other.

¶8 Attorney Bohman's opening statement continued in direct, first-person narrative. He stated that during negotiations he meant to "move the ball forward in good faith" and that his "concern was that [the other party] not misconstrue what [they] were doing." Attorney Bohman recounted conversations in detail and described his thoughts and feelings about them with phrases like, "to my shock and horror," and, "I must have looked like a deer caught in the headlights."

¶9 Attorney Bohman also described his impression of the negotiations by saying, "[I]t was at that point in time that I realized I was probably dealing with an absolute crook." Attorney Bohman was referring to Gilbert, the only other individual in the room during the crucial events—naturally, a pivotal witness in the case. Speaking of Gilbert, Attorney Bohman declared, "Either this man doesn't understand his own contract or he thinks I'm an idiot and that I'm going to rely on a prior writing that would be wiped out." Attorney Bohman pressed forward comparing his and Gilbert's versions of events and providing legal analysis of Gilbert's position. After all the foregoing, opposing counsel finally objected, and the trial court sustained the objection before opposing counsel even stated grounds.

¶10 But Attorney Bohman was undeterred, asserting that Gilbert started "to fabricate a false narrative" and that "what he's done through this period as he [weaves] his false narrative is he started to—" Opposing counsel again objected, and the trial court immediately sustained. After the trial court ruled on the objection, opposing counsel clarified the objection's basis—that Attorney Bohman had given "argument and opinion."

¶11 During an ensuing sidebar conference, the trial court reiterated the instructions from the pretrial conference:

Expressions of your opinion, [Attorney] Bohman, about the truth or falsity of statements made by another party or another witness are not appropriate. I've already made that very clear in my instructions previously, and I will not permit that kind of conduct.

If you want to state what you believe the facts are, that's fine. If you want to state what you believe the other party may allege the facts to be, that's fine. But you may not characterize as "false" or "fabricated" or other adjectives of that nature a characterization of the opponent's testimony. You can articulate the facts, but you may not express your opinion as to the credibility or believability of any other witness or the facts that are going to be presented by those witnesses. Those issues are exclusively within the purview of the jury, and I will not permit that conduct.

Attorney Bohman's opening statement ended shortly thereafter.

¶12 Attorney Bohman's closing argument was much the same. He began by referencing his testimony on the stand but then he launched into...