September 12, 2013 Utah Court of Appeals Case Summaries

Sundial v. The Villages at Wolf Hollow, 2013 UT App 223, No. 20121026-CA (September 12, 2013)

ISSUES: Pre-Judgment Interest

Judge McHugh,

Sundial Inc.(Sundial) appeals from a judgment awarding it damages for unjust enrichment on the ground that the trial court failed to include prejudgment interest. We affirm.

At ¶ 1.

“[T]he legal rate of [prejudgment] interest for . . . any . . . chose in action shall be 10% per annum.” Utah Code Ann. § 15-1-1(2) (LexisNexis 2009). Sundial does not dispute that its unjust enrichment claim against the HOA was a “chose in action.” See Snow, Nuffer, Engstrom & Drake v. Tanasse, 1999 UT 49, ¶ 9, 980 P.2d 208 (“A ‘chose in action’ has been defined as ‘a claim or debt upon which a recovery may be made in a lawsuit. It is not a present possession, but merely a right to sue; it becomes a “possessory thing” only upon successful completion of a lawsuit.’” (quoting Barron’s Law Dictionary 71 (3d ed. 1991))). However, an award of prejudgment interest pursuant to section 15-1-1(2) is not automatic. Prejudgment interest is appropriate only “when the loss ha[s] been fixed as of a definite time and the amount of the loss can be calculated with mathematical accuracy in accordance with well-established rules of damages.” Iron Head Constr., Inc. v. Gurney, 2009 UT 25, ¶ 11, 207 P.3d 1231 (alteration in original) (citation and internal quotation marks omitted). “[W]here damages are incomplete or cannot be calculated with mathematical accuracy, . . . the amount of the damages must be ascertained and assessed by the trier of . . . fact at the trial, and in such cases prejudgment interest is not allowed.” Cornia, 898 P.2d at 1387 (citation and internal quotation marks omitted). Accordingly, “equitable claims typically do not support an award of prejudgment interest because in most equitable cases the damages are not readily calculable to a mathematical certainty.” Kimball v. Kimball, 2009 UT App 233, ¶ 41, 217 P.3d 733. Notwithstanding that general rule, this court has cautioned that “rel[ying] on the nature of the claim” to determine whether prejudgment interest is allowed is inappropriate. Shoreline Dev., Inc. v. Utah Cnty., 835 P.2d 207, 211 (Utah Ct. App. 1992).

At ¶ 8.

In the present case, the amount of damages could not have been determined with mathematical certainty prior to the trial court’s ruling. Tellingly, Sundial calculated its unjust enrichment damages at $30,064.66 before trial, yet the trial court awarded only $5,403. This discrepancy occurred, in large part, because there are no “well‐established rules” for calculating the unjust benefit that was conferred on the HOA. See Iron Head, 2009 UT 25, ¶ 11 (citation and internal quotation marks omitted). . . .

At ¶ 9.

. . . Until the trial court selected a methodology, the amount of damages could not be ascertained with precision. As the trial court correctly noted, “three or four different judges could have heard this same case and maybe come up with different numbers.” Another judge calculating damages might have concluded that the full amount of the overpayment, none of it, or some different percentage constituted the value of the unjust benefit enjoyed by the HOA. Thus, the damage amount here was determined by the broad discretion of the trier of fact. See Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 53, 210 P.3d 263 (“[L]osses that cannot be calculated with mathematical accuracy are those in which the damage amounts are to be determined by the broad discretion of the trier of fact . . . .” (citation and internal quotation marks omitted)).

At ¶ 10.

Allied Construction v. Labor Commission, 2013 UT App 224 No. 20120729-CA (September 12, 2013)

This decision reviews an agency decision for sufficiency of the evidence; accordingly, I will not be summarizing it.

September 6, 2013 Utah Court of Appeals Case Summaries

In re Z.Z., 2013 UT App 215, No. 20110678-CA (September 6, 2013)

I will not be summarizing this opinion because it is affirming a ruling terminating parental rights.

State v. Binkerd, 2013 UT App 216, No. 20100978-CA (September 6, 2013)

ISSUE: Manslaughter; Lesser-Included Offenses; Accomplice Liability

Judge Orme,

Defendant Joshua Binkerd appeals from a conviction for manslaughter, a second degree felony. See Utah Code Ann. § 76-5-205(2) (LexisNexis 2012). We affirm.

At ¶ 1.

The Court reviews the background of this case.

At ¶¶ 2-20.

Given the applicable statutory scheme, Defendant argues that he cannot be convicted as an accomplice to manslaughter. We review statutory interpretations for correctness, granting no deference to the trial court. See Jeffs v. Stubbs, 970 P.2d 1234, 1240 (Utah 1998). Defendant argues that it was plain error for the court to include the instruction on manslaughter, a general intent crime, as a lesser included offense of murder and aggravated murder, both specific intent crimes, under the theory of accomplice liability.

At ¶ 21.

The accomplice liability statute provides that “[e]very person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.” Utah Code Ann. § 76-2-202 (LexisNexis 2012). Defendant argues that he “cannot be tried as an accomplice for a crime that is different from the conviction of the original actor.” We disagree.

At ¶ 24.

In State v. Crick, 675 P.2d 527 (Utah 1983), our Supreme Court explained that

[a] defendant can be criminally responsible for an act committed by another, but the degree of his responsibility is determined by his own mental state in the acts that subject him to such responsibility, not by the mental state of the actor. This is clear from the language of § 76-2-202 . . . . Otherwise, a designing person could use a madman to kill another and mitigate his own responsibility by reference to the derangements of the person he had used to accomplish his purposes.

Id. at 534 (emphasis in original).  . . . Additionally, the Utah Supreme Court has held that 

it is not necessary for the accomplice to have the same intent that the principal actor possessed as long as the accomplice intended that an offense be committed. An accomplice will be held criminally responsible to the degree of his own mental state, not that of the principal. This prevents an individual who is charged as an accomplice from escaping criminal liability by arguing that the principal actor had a lower intent or diminished capacity when the crime was committed. Therefore, the first step in applying accomplice liability is to determine whether the individual charged as an accomplice had the intent that an underlying offense be committed.

State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628.

At ¶ 25.

[State v. Jeffs, 2010 UT 49, ¶ 50, 243 P.3d 1250] states that 

[i]n those cases where the defendant solicits, requests, commands, or encourages another to commit an offense, the accomplice liability statute incorporates the default mental state of recklessly, knowingly, or intentionally. However, in those cases where the defendant is charged with aiding another in the commission of the offense, the accomplice liability statute requires that the defendant’s aiding be “intentional.” 

At ¶ 26.

In the instant case, there is ample evidence to support a determination that Defendant acted recklessly. . . .

At ¶ 28.

Defendant also argues that “[i]f [Defendant]’s acts were only ‘reckless,’ without intent that the murder occur, then he is not an accomplice to the underlying crime of murder” because murder is a specific intent crime. We do not view this argument as persuasive because “it is not necessary for the accomplice to have the same intent that the principal actor possessed as long as the accomplice intended that an offense be committed.” See State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628 (emphasis added). Nothing in the case law suggests that this standard applies only when the principal and the accomplice are both charged with crimes requiring the same intent, as Defendant contends. 

At ¶ 29.

Defense counsel’s decision to request or not request a lesser included offense instruction at trial is afforded this same deference, in recognition of the fact that counsel is in the best position to gauge the defendant’s likelihood of defeating a charge outright and to weigh the possibility that acquittal is not in the cards but that a jury might be satisfied with a conviction on a lesser charge.

At ¶ 31.

. . . Requesting the instruction was not ineffective, even if the request then opened the door to an instruction for manslaughter. We agree with the trial court that “[b]y requesting this instruction on a lesser included offense, Defendant expanded the scope of possible ‘underlying offenses’ to include criminal homicide in all of its pertinent variations.” The critical issue in Defendant’s trial was his mental state. Once Defendant opened the door with the request for the negligent homicide instruction, it was a logical step for the court to include the intermediate mental state required of manslaughter. The evidence of record simply was not amenable to resolution only at the two extremes of the spectrum—i.e., either Defendant intended that his comments to Alvey would lead to the victim’s murder or he was merely negligent with respect to where his comments might lead. On the contrary, and as shown by the verdict actually reached by the jury, the evidence was also amenable to the conclusion that Defendant was reckless with respect to the end result of his remarks.

At ¶ 32.

Defendant argues that his trial counsel was ineffective for failing to argue that the prosecutor’s oral request for a manslaughter jury instruction violated rule 19 of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 19 (“At the final pretrial conference or at such other time as the court directs, a party may file a written request that the court instruct the jury on the law as set forth in the request. . . . The court shall inform the parties of its action upon a requested instruction prior to instructing the jury, and it shall furnish the parties with a copy of its proposed instructions, unless the parties waive this requirement.”). Counsel was not ineffective in this regard because the State had already submitted a written request for a manslaughter instruction prior to trial, thereby providing Defendant with pretrial written notice. Furthermore, rule 19 does not require written notice. See Utah R. Crim. P. 19. In any event, a court “may, over the objection of the defendant’s counsel, give any instruction that is in proper form, states the law correctly, and does not prejudice the defendant.” State v. Hansen, 734 P.2d 421, 428 (Utah 1986).

At ¶ 33.

State v. Baker, 671 P.2d 152 (Utah 1983), recognizes that different tests apply when the defendant requests an instruction for a lesser included offense as opposed to when the State makes such a request. See id. at 156–59. The State is entitled to a lesser included offense instruction when the elements of the lesser included offense are “necessarily . . . included within the original charged offense.” See id. at 156. Defendant could not have committed depraved indifference murder—the offense originally charged by the State—without having also committed reckless manslaughter. . . . Therefore, counsel was not ineffective for failing to argue that the State’s requested instruction violated Baker. . . .

At ¶ 34.

The trial court admitted at the hearing addressing Defendant’s motion for a new trial that it had originally misinterpreted the dangerous weapon enhancement. See Utah Code Ann. § 76-3-203.8 (LexisNexis 2012). While the court sentenced Defendant to a one-to-five-year increase on his sentence as a result of the enhancement, it acknowledged the error after Defendant raised the issue that the court had the discretion not to impose the full five-year enhancement. The court explained, however, that had it correctly understood the statute at the time of sentencing, it would have imposed the same sentence regardless—a sentiment that is entirely credible given the record before us. Therefore, the error was harmless. See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (holding that an error is harmless if “there is no reasonable likelihood that the error affected the outcome of the proceedings”). The trial court has already accounted for its error, and there is no need to remand for resentencing.

At ¶ 35.

Bel Courtyard Investments v. Wolfe, 2013 UT App 217, No. 20110483-CA (September 6, 2013)

ISSUE: Personal Jurisdiction; Forcible Detainer; Candor to the Court; Alternative Service

Judge Roth,

Bel Courtyard Investments, Inc. (BCI) and Mark Bellini (collectively, the landlords) appeal the district court’s judgment in favor of Josh Wolfe and Maarie Isaacson (the tenants) for forcible detainer. We affirm and remand for calculation of attorney fees.

At ¶ 1.

In support of his argument that the district court lacked personal jurisdiction, Bellini cites Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, 238 P.3d 1035. The issue in Arbogast was what actions a party must take to “appear” under rule 5(a) of the Utah Rules of Civil Procedure. Id. ¶¶ 16–17. Rule 5(a) entitles any party who has made a formal appearance to receive notice of “all pleadings and papers” filed in the litigation. Utah R. Civ. P. 5(a)(1), (a)(2)(B). In resolving the issue, the Utah Supreme Court held that a party must make a formal filing or submission to a district court in order to “appear” for purposes of rule 5(a). Arbogast, 2010 UT 40, ¶¶ 33–34. Bellini argues that because he never filed an answer or other formal submission with the court in his individual capacity, “he made no appearance to grant the district court jurisdiction over him.”

At ¶ 12.

Arbogast, however, does not control the result in this case because whether a party has triggered its right to notice under rule 5(a) is analytically distinct from the broader issue of personal jurisdiction presented here. “It is axiomatic that a court acquires power to adjudicate by proper service of process[,] which imparts notice that the defendant is being sued and must appear and defend or suffer a default judgment.” Meyers v. Interwest Corp., 632 P.2d 879, 880 (Utah 1981). Indeed, “‘it is service of process, not actual knowledge of the commencement of the action, which confers jurisdiction.’” Saysavanh v. Saysavanh, 2006 UT App 385, ¶ 25, 145 P.3d 1166 (quoting Murdock v. Blake, 484 P.2d 164, 167 (Utah 1971)). But even where a party has not been adequately served with process, a defect in service can be waived if the party makes a general appearance. See Chen v. Stewart, 2004 UT 82, ¶¶ 66, 70, 100 P.3d 1177; see also Barber v. Calder, 522 P.2d 700, 702 n.4 (Utah 1974). Utah courts have recognized that “an appearance by the defendant for any purpose except to object to personal jurisdiction constitutes a general appearance.” Barlow v. Cappo, 821 P.2d 465, 466 (Utah Ct. App. 1991) (emphasis omitted); see also RM Lifestyles, LLC v. Ellison, 2011 UT App 290, ¶ 20, 263 P.3d 1152 (noting that defendants who “argue[d] the merits . . . waiv[ed] any argument related to lack of personal jurisdiction”).

At ¶ 13.

. . . , Bellini, as president of BCI, had been involved in the litigation since its inception. He also knew as early as December 2009 that the tenants intended to assert claims against him at trial. And . . .  never raised an objection to personal jurisdiction, the district court here found that Bellini “litigated the merits,” “never objected to . . . jurisdiction,” and “had a full and fair opportunity to defend [against the tenants’ claims] . . . in his personal capacity.” Additionally, . . . Bellini himself admits he was properly served before trial. See Utah R. Civ. P. 4(b)(ii) (“. . . ”). Consequently, Bellini voluntarily submitted to the district court’s jurisdiction, and the district court did not err when it issued a judgment against him individually. 

At ¶ 15.

The landlords’ arguments challenging the district court’s forcible detainer judgment are also unpersuasive. First, the landlords cannot rely on the restitution order as a shield to liability where they failed to disclose material facts to the district court and thereby undermined the rule meant to ensure that alternative process is adequate. Second, the district court’s findings of fact—which the landlords do not challenge on appeal—provide adequate support for a forcible detainer judgment. We therefore affirm the district court’s judgment on this issue.

At ¶ 16.

The landlords cannot rely on the restitution order to protect them from liability. Unlawful detainer is “a summary proceeding” that provides “a severe remedy.” Parkside Salt Lake Corp. v. Insure-Rite, Inc., 2001 UT App 347, ¶ 18, 37 P.3d 1202 (citation and internal quotation marks omitted). Consequently, Utah courts have required strict compliance with the unlawful detainer statute to carry out the legislature’s goal of “quickly and clearly resolving conflicts over lawful possession of property between landowners and tenants.” Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 22, 232 P.3d 999. More importantly, requiring strict compliance “obviate[s the temptation to] resort to self-help and violence,” Lindsey v. Normet, 405 U.S. 56, 71 (1972), and prevents landlords from disturbing actual possession of property “except by legal process,” Kassan v. Stout, 507 P.2d 87, 89 (Cal. 1973) (in bank) (internal quotation marks omitted).

At ¶ 17.

Given the fast pace of unlawful detainer proceedings and the nature of the interests at stake, it is essential that the judicial process leading to eviction be as well informed and reliable as possible. For this reason, some courts have concluded that resort to legal process alone will not protect landlords from forcible detainer liability where there is a significant underlying irregularity implicating the integrity of the process. Compare Glass v. Najafi, 92 Cal. Rptr. 2d 606 (Ct. App. 2000), with Bedi v. McMullan, 206 Cal. Rptr. 578 (Ct. App. 1984). For example . . .

At ¶ 18.

We are persuaded that under the circumstances of this case, the landlords are not entitled to invoke the court’s restitution order as a shield against forcible detainer liability. The district court’s findings of fact establish that the landlords failed to disclose material facts that called into question not only their entitlement to an order of alternative service but also whether the alternative service they convinced the court to authorize was “reasonably calculated, under all the circumstances, to apprise the [tenants]” of the eviction proceeding, Utah R. Civ. P. 4(d)(4)(B). Alternative service is justified “[w]here the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence . . . or where there exists good cause to believe that the person to be served is avoiding service of process.” Id. R. 4(d)(4)(A). While rule 4 “does not require a plaintiff to exhaust all possibilities to locate and serve a defendant,” it does“require more than perfunctory performance,” and a plaintiff cannot “turn[] a blind eye” to readily available information. Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶¶ 19–20, 100 P.3d 1211 (citation and internal quotation marks omitted). A plaintiff who “‘stops just short of the place where if [he] . . . continued might reasonably be expected to uncover an address’” has not exercised reasonable diligence and is not entitled to an order authorizing alternative service. Bonneville Billing v. Whatley, 949 P.2d 768, 775 (Utah Ct. App. 1997) (quoting Parker v. Ross, 217 P.2d 373, 379 (Utah 1950) (Wolfe, J., concurring specially)).

At ¶ 19.

As we have already discussed, BCI moved the district court to authorize alternative service based on an affidavit suggesting that the tenants were avoiding service without revealing that the service attempts had been during daytime hours over only two consecutive days. In addition, the landlords requested service by mail to an address where they knew the tenants had no mailbox, while at the same time failing to disclose the Lehi mailing address the tenants had given them. When the tenants then failed to respond, BCI obtained a default judgment and restitution order knowing that the tenants contested BCI’s right to do so under the PTFA. Having procured the order through a process that involved material nondisclosure at a significant stage of the proceedings, BCI cannot rely on the resulting order of restitution as a shield against forcible detainer liability. See id. at 773 . . .

At ¶ 20.

Without that shield, the district court’s findings of fact support the conclusion that the landlords committed forcible detainer. Forcible detainer occurs when (1) one party “hold[s] and keep[s] by force, or by menaces and threats of violence, the possession of any real property, whether acquired peaceably or otherwise,” Utah Code Ann. § 78B-6-801(2)(a) (LexisNexis 2012), and (2) the tenant is “peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer,” id. § 78B-6-809(1). A landlord who “turns a tenant in peaceable possession out by means of force, fraud, intimidation, stealth, or by any kind of violence . . . makes himself liable to that tenant for damages.” Freeway Park Bldg., Inc. v. Western States Wholesale Supply, 451 P.2d 778, 781 (Utah 1969). And under the statute, “[t]his is true even if that tenant’s possession is wrongful.” Pentecost v. Harward, 699 P.2d 696, 700 (Utah 1985). This court has previously held that a landlord committed forcible detainer when he wrongfully changed locks and threatened to call the police if his tenant did not leave the premises. See Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt., Inc., 2005 UT App 326, ¶¶ 23–24, 121 P.3d 24, aff’d, 2006 UT 45, 143 P.3d 278.

At ¶ 21.

Howick v. Salt Lake City Corp., 2013 UT App 218, No. 20110848-CA (September 6, 2013)

ISSUES:  Merit Employees in Municipal Government; Freedom to Waive Merit Employment

Judge Voros,

Jodi Howick was employed by Salt Lake City Corporation as general counsel to the Salt Lake City International Airport. The principal questions on appeal are (1) whether Howick was a merit employee under the Utah Municipal Code, (2) if so, whether she could legally forfeit merit protection, and (3) if so, whether she did. We answer the first and second questions in the affirmative. We remand for the district court to answer the third question. 

At ¶ 1.

In 1992, the City hired Howick as counsel for the Salt Lake City International Airport. In 1998, the City created a new position, “Appointed Senior City Attorney,” in response to the salary dissatisfaction of some city attorneys. The position came with a significant pay increase, but the City required employees applying for the position to sign a document titled “Salt Lake City Corporation At-Will Employment Disclaimer.” The Disclaimer purported to terminate the signer’s merit employee status: . . .

At  ¶ 2.

The City contends that the district court erred by failing to fully analyze the issues before it, ruling that Howick’s claims were not time-barred, concluding that Howick was a merit employee, and rejecting the City’s defenses of waiver and estoppel based on the Disclaimer. Howick counters that the district court should have granted her summary judgment motion in its entirety and reinstated her as an employee of the City.

At ¶ 6.

At the heart of this dispute is what we will refer to as the Merit Protection Statute, as it existed in 1998. The statute mandates merit protection for all municipal employees, subject to several enumerated exceptions. See Utah Code Ann. § 10-3-1105 (Michie 1996). The next statutory section provides that no protected municipal employee may be discharged or demoted “because of his politics or religious belief, or incident to, or through changes, either in the elective officers, governing body, or heads of departments.” Id. § 10-3-1106(1). That section also sets forth a termination and appeals procedure applicable to protected employees. See id. § 10-3-1106(2)–(7).

At ¶ 8.

The main substantive questions raised by this appeal are (1) whether Howick qualified as a merit employee under the Merit Protection Statute and (2) if so, whether she forfeited its protections by accepting a promotion to an “at‐will professional position” and signing the Disclaimer. However, before we reach these questions we must address threshold procedural issues concerning (1) whether the district court made all rulings necessitated by our decision in Howick II and (2) whether Howick’s claim is barred by the statute of limitations.

At ¶ 9.

The district court ruled that the question of liability “comes down to an issue of statutory construction.” It read the Merit Protection Statute as mandatory, “meaning that the provisions of the merit system apply to all employees except those that are specifically exempted.” The court further determined that “there are simply no facts in the record from which to conclude that Ms. Howick was either a department head or a superintendent”; thus, it concluded, she was not specifically exempted by the statute. Finally, the court ruled that “because of the language of the statute, the parties cannot create an exception to the statute by contract, waiver, or estoppel.” Allowing a city and its employee to expand the statutory exceptions to merit protection, the court reasoned, would permit a city to “pressure employees to enter into a contract giving up their rights as merit employees, while paying them only minimal compensation for doing so. This could effectively end merit employment as mandated by the legislature.”

At ¶ 11.

The Court rejects the City’s statute of limitations arguments

At ¶¶ 13-18.

The Merit Protection Statute provided that all municipal employees are merit employees except for those holding positions specifically enumerated:

All appointive officers and employees of municipalities, other than members of the police departments, fire departments, heads of departments, and superintendents, shall hold their employment without limitation of time, being subject to discharge or dismissal only as hereinafter provided.

Utah Code Ann. § 10-3-1105 (Michie 1996).

At ¶ 20.

The question before us is whether Howick fit within the exceptions for “heads of departments” or “superintendents” who are exempt from this protection. See Utah Code Ann. § 10-3-1105. This question is governed by her actual duties, not her job title. See Pearson v. South Jordan City, 2012 UT App 88, ¶ 25, 275 P.3d 1035.

At ¶ 22.

The Court reviews the evidence and determines that the trial court did not error in determining that Petitioner was a merit employee prior to signing the waiver.

At ¶¶ 23-28.

Having determined that Howick was covered by the protections of the Merit Protection Statute, we must now decide whether those protections may be forfeited by contract, waiver, or estoppel. Howick contends that permitting cities to contract around the Merit Protection Statute would undermine the important public policy it advances.

At ¶ 29.

“People are generally free to bind themselves pursuant to any contract, barring such things as illegality of subject matter or legal incapacity.” Ockey v. Lehmer, 2008 UT 37, ¶ 21 n.12, 189 P.3d 51 (brackets, citation, and internal quotation marks omitted). Accordingly, “an enforceable contract can coexist with a statute that may conflict with its terms so long as the contract does not offend the public policy to which the statute gives voice.” Lee v. Thorpe, 2006 UT 66, ¶ 22, 147 P.3d 443. “For a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Ockey, 2008 UT 37, ¶ 21 (citation and internal quotation marks omitted). Our supreme court in Ockey considered two factors in determining whether a contract was against public policy. The first was whether the statute specifically declared contrary contracts to be void; the second was whether the contract offended public policy or harmed the public as a whole, as opposed to the contracting party only. Id. ¶¶ 19, 23.

At ¶ 34.

With respect to the first factor, the City rightly observes that unlike many Utah statutes, the Merit Protection Statute contains no express anti-waiver provision. . . . The first Ockey factor thus weighs in favor of permitting merit employees to contract away their merit protection.

At ¶ 35.

The second factor is whether the contract offends public policy or harms the public as a whole. See Ockey, 2008 UT 37, ¶¶ 21–23. As explained above, civil service systems generally, and merit protection statutes of the type at issue here specifically, were designed to end the “patronage practice” or “spoils system” in government. In addition, merit-protected government attorneys are likely to feel greater freedom than at-will attorneys to candidly advise their clients or take other actions as required by the Utah Rules of Professional Conduct. These protections benefit the public as a whole, not merely the protected employee.

At ¶ 36.

The Court rejects application of the 2012 amendment to the Merit Protection Statute to this case because it does not apply retroactively.

At ¶¶ 37-41.

But neither is the 2012 amendment irrelevant. Although it is “inapplicable to this case,” we regard it “as a reflection of current legislative views on public policy.” Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1246 n.2 (Utah 1990). We can  hardly agree that Howick has made “a showing free from doubt that the contract is against public policy,” see Ockey v. Lehmer, 2008 UT 37, ¶ 21, 189 P.3d 51, when current statutory law expressly authorizes the contract, see Utah Code Ann. § 10-3-1105(2)(e) (LexisNexis 2012). While Utah may in the past have had a consistent public policy against permitting municipalities to induce their employees to waive merit protection, it no longer does. On the contrary, our statutory law now expressly permits such waivers within stated limits.

At ¶ 42.

In sum, neither Ockey factor is satisfied here. The Merit Protection Statute does not specifically declare contrary contracts to be void, nor does this case present a showing free from doubt that the contract offends public policy. See Ockey, 2008 UT 37, ¶¶ 21, 23. Accordingly, the Merit Protection Statute did not prohibit Howick from contracting away her merit protection.

At ¶ 43.

The district court understandably concluded that no contract, waiver, or estoppel could circumvent the protections afforded by the Merit Protection Statute. It therefore did not adjudicate those issues. But because we conclude that the Merit Protection Statute does not foreclose those defenses, we remand to the district court for plenary resolution of those issues.

At ¶ 44.

McCloud v. State, 2013 UT App 219, No. 20110794-CA (September 6, 2013)

ISSUES: Physician-Patient Privilege

Judge Thorne,

This matter originated in the district court in 2007 when appellee Larry McCloud sought postconviction relief from his 2001 convictions for sexually abusing a child (Victim). Upon McCloud’s motion, the district court authorized the issuance of subpoenas for the production and in camera review of certain records from Victim’s treatment with various medical and psychiatric care providers. The State brings this interlocutory appeal challenging the district court’s order authorizing the subpoenas. We reverse the district court’s order and remand this matter for further proceedings.

At ¶ 1.

In 2007, McCloud filed a petition for relief in the district court pursuant to Utah’s Post-Conviction Remedies Act. See Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2012 & Supp. 2013). After a series of summary judgment motions and resulting amendments to McCloud’s petition, three arguments for relief remained. One of these arguments was that McCloud had received ineffective assistance of appellate counsel following his 2001 trial because appellate counsel had failed to argue that McCloud’s trial counsel provided ineffective assistance by failing to obtain records from various doctors and therapists to whom Victim had disclosed the abuse.

At ¶ 4.

In 2011, McCloud renewed a previous discovery motion for the issuance of subpoenas duces tecum directing the production of Victim’s records from various doctors and therapists for an in camera review by the district court. McCloud’s discovery motion asserted that the records “pertain to a substantive claim in the Petition” and “are necessary for the full presentation of the prejudice prong of the Sixth Amendment claim in this case.” The State opposed the motion, as did Victim, who had intervened in the

case.

At ¶ 5.

After a hearing, the district court granted McCloud’s motion. . . .

At ¶ 6.

The State challenges the district court’s conclusion that McCloud established his entitlement to the production and in camera review of Victim’s records. Specifically, the State argues that the district court erred in concluding that the possibility of inconsistent statements by Victim to her various doctors, therapists, and counselors constituted an exception to her patient privilege. See Utah R. Evid. 506(d)(1)(A) (stating that no privilege exists in proceedings where a patient’s condition is an element of a claim or defense). The State further argues that McCloud failed to provide adequate extrinsic evidence to demonstrate the required “reasonable certainty” that Victim’s records contained exculpatory evidence. See State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144 (citation and internal quotation marks omitted).

At ¶ 8.

Rule 506 of the Utah Rules of Evidence provides that “[a] patient has a privilege, during the patient’s life, to refuse to disclose and to prevent any other person from disclosing information that is communicated in confidence to a physician or mental health therapist for the purpose of diagnosing or treating the patient.” Utah R. Evid. 506(b). However, rule 506 contains certain exceptions to the patient privilege, one of which is rule 506(d)(1)(A)’s directive that “[n]o privilege exists . . . [f]or communications relevant to an issue of the physical, mental, or emotional condition of the patient . . . in any proceeding in which that condition is an element of any claim or defense.” Id. R. 506(d)(1)(A). Rule 506(d)(1)(A) was the only privilege exception argued to the district court, and the district court apparently relied on that exception when it concluded that inconsistencies in Victim’s statements to her various care providers qualified as an exception to the patient privilege because they may have provided McCloud with a defense at his 2001 trial. 

At ¶ 9.

In determining the applicability of rule 506(d)(1)(A), a district court must first “determine whether the patient suffers from a physical, mental, or emotional condition as opposed to mental or emotional problems that do not rise to the level of a condition.” State v. Lenkart, 2011 UT 27, ¶ 48, 262 P.3d 1. A qualifying condition “is not transitory or ephemeral.” Worthen, 2009 UT 79, ¶ 21. Rather, a condition must be “a state that persists over time and significantly affects a person’s perceptions, behavior, or decision making in a way that is relevant to the reliability of the person’s testimony.” Id.

At ¶ 10.

The district court did not expressly identify a specific “physical, mental, or emotional condition” to support its ruling. Rather, the district court stated only that “[i]nconsistencies in [Victim’s] disclosures may have provided a defense to the petitioner at the time of trial.” We cannot agree with the district court that the possibility that patient records contain inconsistent statements made by the patient qualifies as an exception under rule 506(d)(1)(A).

At ¶ 11.

. . . The district court’s stated rationale suggests only that inconsistent statements were possible because Victim had spoken to multiple caregivers over a lengthy period of time. While that possibility certainly exists, it does not constitute a physical, mental, or emotional condition for purposes of rule 506(d)(1)(A).

At ¶ 12.

The State also argues that McCloud failed to provide the district court with extrinsic evidence demonstrating a reasonable certainty that Victim’s records contain exculpatory information. A party seeking to obtain in camera review of records governed by rule 506 “must show with reasonable certainty that the records contain exculpatory evidence that will be favorable to [a claim or] defense.” State v. King, 2012 UT App 203, ¶ 32, 283 P.3d 980 (citation and internal quotation marks omitted). This is a stringent test, necessarily requiring some type of extrinsic indication that the evidence within the records exists and will, in fact, be exculpatory. The difficulty in meeting this test is deliberate and prudent in light of the sensitivity of these types of records and the worsening of under-reporting problems in the absence of a strong privilege.

State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56 (footnote omitted).

At ¶ 14.

Here, McCloud presented the district court with several different types of extrinsic evidence to show that Victim’s records would contain statements pertaining to the abuse. He provided billing records showing the specific times that Victim had met with various care providers. He also presented a March 13, 1989 diary entry, allegedly written by Victim’s grandmother, stating that Victim told her therapist that McCloud had “touched her (while in the pool) where he shouldn’t.” Finally, he relied on Victim’s own statements from the preliminary hearing and trial indicating that she had revealed his abuse to several care providers.

At ¶ 15.

This extrinsic evidence is likely sufficient to demonstrate a reasonable certainty that Victim did disclose McCloud’s abuse to one or more care providers. But that alone is not enough to overcome Victim’s patient privilege. Rather, McCloud was required to “show with reasonable certainty that the records contain exculpatory evidence.” King, 2012 UT App 203, ¶ 32 (emphasis added) (citation and internal quotation marks omitted).

At ¶ 16.

. . . the mere possibility that the multiple reports contained material inconsistencies is too speculative to meet the “reasonable certainty” requirement. 

At ¶ 17.

In re D.M., 2013 UT App 220, No. 20120085-CA (September 6, 2013)

ISSUES:  Sexual Abuse of a Child; Amendment of Information; Evidence of Intent

D.M. appeals from the juvenile court’s order adjudicating him delinquent on one count of sexual abuse of a child (Allegation III), a second degree felony when committed by an adult. See generally Utah Code Ann. § 76-5-404.1(3) (LexisNexis Supp. 2013). We affirm.

At ¶ 1.

It is undisputed that the State failed to present evidence of oral–genital contact in support of Allegation III, and thus the allegation could not survive D.M.’s motion to dismiss as originally charged. However, the State responded to D.M.’s motion by asking the juvenile court to amend the charge to sexual abuse of a child, which has no element of oral–genital contact, and the juvenile court granted the State’s request. D.M.’s appellate brief does not address the effect of the juvenile court’s amendment of Allegation III on his motion to dismiss, nor does it raise any argument that the amendment was improper. Because the juvenile court amended Allegation III to charge sexual abuse of a child, we see no error in the juvenile court’s denial of D.M.’s motion to dismiss that allegation altogether. 

At ¶ 6.

D.M. had multiple opportunities to address and resolve the alleged confusion over the amendment to Allegation III prior to his adjudication for sexual abuse of a child as alleged in the amended allegation. Under these circumstances, D.M.’s complaint of unfair surprise that he was ultimately adjudicated for sexual abuse of a child is unavailing. . . .

At ¶ 8.

Although D.M. is correct that there was no direct evidence of his intent to gratify or arouse a sexual desire, intent “is a state of mind, which is rarely susceptible of direct proof.” State v. Robertson, 2005 UT App 419, ¶ 15, 122 P.3d 895 (citation and internal quotation marks omitted). In the absence of direct proof, intent “can be inferred from conduct and attendant circumstances in the light of human behavior and experience.” Id. (citation and internal quotation marks omitted). Such inferences are routinely employed in cases requiring proof of sexual intent. . . .

At ¶ 10.

. . . In light of D.M.’s conduct in exposing and touching T.I.’s testicles and the “attendant circumstances,” see Robertson, 2005 UT App 419, ¶ 15 (citation and internal quotation marks omitted), we cannot say that the juvenile court’s inference that D.M. possessed a sexual intent “is so flawed as to render the inference clearly erroneous,” see In re K.O., 2010 UT App 155, ¶ 5 (citation and internal quotation marks omitted). 

At ¶ 11.

. . . we see no indication that the juvenile court failed to consider D.M.’s young age in determining that he possessed the requisite intent. Further, D.M. presents no Utah authority for the proposition that an eleven-year-old cannot possess sexual intent as a matter of law, nor did he present evidence below that eleven-year-olds in general—or himself in particular—are incapable of forming sexual intent. . . .

At ¶ 12.

Maguire v. Bigelow, 2013 UT App 221, No. 20130597-CA (September 6, 2013)

ISSUE: Appeal of Probation Board’s decision regarding full term of sentence.

I will not summarize this decision as it reviews and agency decision for abuse of discretion.

In re E.S..., 2013 UT App 222, No. 20130461-CA (September 6, 2013)

ISSUES: Termination of Parental Rights

I will not summarize this decision as it deals with the sufficiency of evidence in a termination of parental rights.

August 30, 2013 Utah Supreme Court Case Summaries

Burr v. Orem City, 2013 UT 57, No. 20120982 (August 30, 2013)

ISSUES: Referendum Petitions; Ballot Titles

Justice Nehring,

Via a referendum petition, Petitioners obtained sufficient signatures to challenge a proposed tax increase approved by the Orem City Council in Resolution 2012-0014. The measure will now go before the voters of Orem City in the November 2013 election. Petitioners challenge the Orem City Attorney’s proposed language that will appear as the referendum ballot title. We disagree with Petitioners’ objections to the wording of the ballot title, having found that the drafter did not abuse his discretion.

At ¶ 1.

The Court outlines the background of this case.  Specifically, Orem’s debt obligation to UTOPIA, the city counsel’s approval of a tax increase to help satisfy the debt, the Petitioner’s referendum petition, the City Attorney’s proposed ballot title and the Petitioner’s Petition for Extraordinary relief because they oppose the language in the ballot title.

At ¶ 6.

Utah Code section 20A-7-608(6) sets forth the scope of our review of referendum ballot titles in the face of a challenge. It reads:

(a) If the ballot title furnished by the local attorney is unsatisfactory or does not comply with the requirements of this section, the decision of the local attorney may be appealed by a petition to the Supreme Court that is brought by:

(i) at least three sponsors of the referendum petition; or

(ii) a majority of the local legislative body for the jurisdiction where the referendum petition was circulated.

(b) The Supreme Court shall examine the measures and consider arguments, and, in its decision, may certify to the local clerk a ballot title for the measure that fulfills the intent of this section.

The operative question posed by the language of the statute is whether the ballot title “is unsatisfactory or does not comply with the requirements of this section.” In order to give meaning to this standard, we look to the requirements of the section in drafting the ballot title. Section 608(3) reads:

(a) The ballot title may be distinct from the title of the law that is the subject of the petition, and shall express, in not exceeding 100 words, the purpose of the measure.

(b) In preparing a ballot title, the local attorney shall, to the best of his ability, give a true and impartial statement of the purpose of the measure.

(c) The ballot title may not intentionally be an argument, or likely to create prejudice, for or against the measure.

. . . [A] ballot title challenge encompasses three requirements: “1. that the ballot title give a true and impartial statement of the purpose of the measure; 2. that the ballot title not exceed 100 words in length; and 3. that the ballot title be submitted by [the stated deadline].”

At ¶ 7.

. . . In creating the ballot title, the statute gives broad instructions as to content, requiring only that the product be “a true and impartial statement of the purpose of the measure” and not be an argument for or against the measure.8 As a result, the City Attorney is allotted a wide range of permissible terminology and has broad discretion in his choice of wording. Indeed, there are numerous satisfactory alternatives from which the City Attorney must have chosen in arriving at the final product in this case. In deciding among the various alternatives, the City Attorney must draw on his experience, expertise, and familiarity with the measure. In reviewing the City Attorney’s final product, it is not our task to determine whether he has chosen the best possible wording, but only whether the chosen wording meets the requirements of the statute. In other words, we may not substitute our “editorial judgment” for that of the drafter.9 Therefore, we hold that in the creation of ballot titles, the drafter is entitled to considerable deference, and we will apply an abuse of discretion standard in conducting our review.

At ¶ 9.

The parties agree that the timing and word limit requirements were both met in this case. It is solely the content of the proposed title that is the subject of our review.

At ¶ 11.

The Court quotes the language of the Ballot measure

At ¶ 12.

Petitioners assert three challenges to use of this language: (1) the language fails to give a true and impartial statement of the purpose of the measure by failing to mention UTOPIA, (2) the title creates an argument for the measure by minimizing the perceived burden on businesses, and (3) the wording is otherwise “unsatisfactory” in that it seeks to hide from the voters the causal connection between the UTOPIA bond obligation and the requested tax rate increase. We address each challenge in turn.

At ¶ 13.

Petitioners take issue with the “for municipal operations” language. They allege that the real purpose of the tax increase is to pay the obligation on the UTOPIA debt guarantee. Indeed, based on the minutes of the various public hearings held on the matter, the City Council stated that the need for the tax increase was a result of the UTOPIA bond obligation. Respondents do not dispute that approximately $2.8 million of the City of Orem’s $88 million budget will be paid toward the UTOPIA bond obligation. But where Petitioners’ argument fails is that they have not shown that the language “for municipal operations” is either untrue or partial in some way. Even the language proposed by Petitioners does not eliminate the “for municipal operations” wording. Instead, it adds additional language, proposing “for municipal operations and for payment on the UTOPIA bond obligation.”

At ¶ 16.

In short, Petitioners argue that their proposed language would make the ballot title more true or more impartial. This is precisely the kind of substitution of judgment that our deferential standard of review does not permit. . . . Given our deferential standard of review, we see nothing untrue or partial about the City Attorney’s summarizing the proposed tax increase’s purpose as “for municipal operations.” Therefore, we hold that the language “for municipal operations” satisfies the requirements of truth and impartiality absent mention of UTOPIA.

At ¶ 17. 

Petitioners next argue that the City Attorney’s use of the language mandated by the truth-in-taxation hearing creates an argument in favor of the measure by minimizing the impact of the proposed tax on businesses. For the purpose of our review, Petitioners argue, in essence, that the proposed language, while true, is not impartial. The proposed ballot language reads as follows:

The Orem property tax on a $187,000 residence would change from $192 to $242, which is $50 per year. The Orem property tax on a $187,000 business would change from $350 to $440, which is $90 per year.

Again, we find nothing untrue or partial about the proposed wording. While the ballot title does not say from where these figures originate (likely due to the word limit), $187,000 is the average value of a residential home in Orem City in 2013. For purposes of the truth-in-taxation hearing, the City Council was required to use this figure as an example of the impact of the proposed tax increase on both residences and businesses. Nowhere does it purport to represent the average value of a business, nor do Petitioners provide us with the data of what the average value of a business in the City of Orem was in 2013. What the language does is provide an “apples to apples” comparison of the proposed increase on residences compared to businesses, which accounts for the 45 percent exemption on the taxation of primary residences in the state of Utah. Again, while there are certainly multiple ways to depict the impact of the proposed increase, our job is not to determine whether the City Attorney utilized the best possible method of communicating the impact and we will not substitute our editorial judgment for that of the drafter. In sum, we conclude that the City Attorney did not abuse his discretion by including the truth-in-taxation language in the ballot title.

At ¶ 18.

Utah Code section 20A-7-608(6)(a), which defines our review as whether the proposed language is “unsatisfactory or does not comply with the requirements of this section.” Petitioners argue that inclusion of the word “unsatisfactory” dictates a separate standard of review, one distinct from strict compliance with the terms of the statute. We disagree.

At ¶ 19.

August 29, 2013 Utah Court of Appeals Case Summaries

State v. Grant, 2013 UT App. 210, No. 20120295-CA (August 29, 2013)

ISSUE: Sentencing for Attempted Aggravated Sexual Abuse of a Child Not subject to Section 76-5-406.5

Per Curiam,

Defendant Trevor R. Grant appeals his sentence on a conviction of attempted aggravated sexual abuse of a child, a first degree felony. Grant argues that his trial counsel rendered ineffective assistance of counsel by failing to present evidence on all of the circumstances enumerated in Utah Code section 76-5-406.5. See Utah Code Ann. § 76-5-406.5 (LexisNexis 2012). We affirm.

At ¶ 1.

Grant argues that his trial counsel was ineffective “by failing to investigate and present evidence of the circumstances justifying probation or suspension of sentence pursuant to Utah Code [section] 76-5-406.5.” However, an “attempt” to commit aggravated sexual abuse of a child is not among the offenses listed in section 76-5-406.5(1). . . .

At ¶ 3.

. . . Because it was not necessary to demonstrate all of the circumstances listed in section 76-5- 406.5(1) in order to sentence Grant to probation, trial counsel did not render deficient performance by failing to address all of the enumerated circumstances.

At ¶ 4.

The Court evaluates defense counsel’s performance at sentencing and determines it was not ineffective.

At ¶ 5.

In re G.P..., 2013 UT App. 211, No. 20130347-CA (August 29, 2013)

ISSUE: Termination of Parental Rights

I will not be summarizing this case, because it deals with the sufficiency of evidence to terminate parental rights.

State v. Fowers, 2013 UT App. 212, No. 201109360-CA (August 29, 2013)

ISSUE: Sufficiency of Evidence Regarding Attempted Kidnapping

Judge Thorne,

Roger Scott Fowers appeals his conviction for attempted kidnapping. See Utah Code Ann. § 76‐5‐301 (LexisNexis 2012); see also id. § 76‐4‐101.  Fowers argues that the evidence presented by the State was insufficient to support his conviction and that the district court therefore erred in denying his motion to dismiss. We affirm.

At ¶ 1.

The State’s primary theory in support of the kidnapping charge was that Fowers “detain[ed] or restrain[ed]” a minor between the ages of fourteen and eighteen without the consent of the minor’s parent. See Utah Code Ann. § 76-5-301(1)(d) (LexisNexis 2012).4 The State was further required to prove that Fowers did so “intentionally or knowingly, without authority of law, and against the will of the victim.” Id. § 76-5-301(1). A person is guilty of an attempt to commit a crime if he or she engages in conduct constituting a substantial step toward the commission of that crime that strongly corroborates his or her intent to commit the crime. See id. § 76-4-101. Thus, to affirm Fowers’s conviction of attempted kidnapping, we need only determine that there was sufficient evidence presented to show that Fowers engaged in conduct constituting a substantial step towards detaining or restraining T.H. and strongly corroborating his intent to detain or restrain her.

At ¶ 6.

At trial, T.H. testified for the State that Fowers blocked her path with his car, got out of the car, and told her to “just get in” after she had twice refused his offer of a ride. T.H. further testified that he grabbed her forearm hard enough to leave red marks and only released her arm when she kicked him. Additionally, the State presented testimony from the police officer who had interviewed Fowers after his arrest. The officer testified that Fowers himself partially corroborated T.H.’s version of events by admitting that he was in the area looking for prostitutes at the time of the incident and that he twice asked a young woman walking along Main Street if she needed a ride.6 Viewing this evidence in the light most favorable to the jury’s verdict, we cannot say that it is “sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt” that Fowers committed the crime of attempted kidnapping. Dunn, 850 P.2d at 1212.

At ¶ 7.

The Court declines to address Defendants alleged inconsistencies with the evidence because “it is not . . . our prerogative to weigh conflicting evidence or to determine the credibility of witnesses. See State v. Romero, 554 P.2d 216, 218 (Utah 1976). Rather, that is the role of the jury. See State v. Goddard, 871 P.2d 540, 543 (Utah 1994).

At ¶ 8-9.

State v. Campos, 2013 UT App 213, No. 20101042-CA (August 29, 2013)

ISSUES: Ineffective Assistance of Counsel; Special Mitigation Instruction in Attempted Murder Cases; Imperfect Self-defense instructions; Prosecutorial Misconduct During Closing Arguments; Lesser Included Instructions; Expert Testimony; and Character Evidence

Judge Voros,

Campos challenges his convictions [for attempted murder and aggravated assault], alleging a number of errors in the trial and arguing that he was denied a fair trial because he was deprived of his constitutional right to effective assistance of counsel. We conclude that Campos’s trial counsel performed deficiently in three instances. While each instance alone might not be sufficiently prejudicial to require reversal in this case, taken as a whole trial counsel’s deficient performance undermines our confidence in the verdict on the attempted murder charge. We therefore reverse the conviction for attempted murder. We affirm the conviction for aggravated assault.

At ¶ 2.

The Court outlines the facts of the case, which involves an altercation on a public street between Campos and the victim.  The victim had been patrolling the neighborhood as an unofficial neighborhood watch, and begun following a girl because he suspected the car was stolen.  The girl was Campos’ daughter.  There were differing accounts of the events leading to Campos shooting the victim.  Campos argued he shot the victim in self defense.

At ¶¶ 3-21.

The Court recounts the required elements of an ineffective assistance of counsel claim as set forth in Strickland v. Washington, 466 U.S. 668, 684–86 (1984).

At ¶¶ 23-24.

Special Mitigation Instruction

Campos first contends that his trial counsel performed deficiently by failing to request a special mitigation jury instruction on extreme emotional distress. 

At ¶ 25.

. . . “Special mitigation exists when the actor causes the death of another or attempts to cause the death of another . . . under the influence of extreme emotional distress for which there is a reasonable explanation or excuse.” Utah Code Ann. § 76-5-205.5(1)(b). 

At ¶ 26.

If the trier of fact finds that each element of attempted murder has been established beyond a reasonable doubt “and also that the existence of special mitigation . . . is established by a preponderance of the evidence,” “the defendant shall instead be found guilty of attempted manslaughter.” Id. § 76-5-205.5(5)(a), (5)(b)(iv). However, a jury’s determination on special mitigation must be unanimous. See id. § 76-5-205.5(6). “If the jury is unable to unanimously agree whether or not special mitigation has been established, the result is a hung jury.” Id. § 76-5-205.5(6)(d).

At ¶ 27.

Our supreme court has explained that “a person acts under the influence of extreme emotional distress when he is exposed to extremely unusual and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control, and be overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions.” Id. ¶ 26 (citation and internal quotation marks omitted). However, the statute excludes from the purview of emotional distress “mental illness” and “distress that is substantially caused by the defendant’s own conduct.” Utah Code Ann. § 76-5-205.5(3). Thus, “an external triggering event is also required.” White, 2011 UT 21, ¶ 32. “In many cases this triggering event will naturally occur just before the criminal act; however, we find no language in our precedent that requires the triggering event be contemporaneous with the defendant’s loss of self-control.” Id. 

At ¶ 30.

The State argues that Campos “substantially caused” his own emotional distress when he retrieved his gun, drove with his daughter to find Serbeck, forced Serbeck to stop by pulling in front of him, and confronted Serbeck with his gun in hand. However, this argument ignores the initial triggering event that led Campos to take the actions described by the State: Campos’s teenage daughter and her friends arrived at Campos’s house in a panic after being followed late at night. By the time Campos confronted Serbeck, Serbeck testified that Campos was “[en]raged,” “mad,” and “screaming something about somebody following his daughter.” Based on this  evidence, a rational jury might conclude that Campos was under “extremely unusual and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control, and be overborne by intense feelings, such as passion [and] anger.” See id. ¶ 26 (citation and internal quotation marks omitted). That Campos could have called 911 rather than pursuing and shooting Serbeck—in other words, that Campos acted in a way that arguably exhibited “loss of self-control” and his being “overborne by intense feelings”—does not necessarily mean that Campos substantially caused his own emotional distress. Although the jury may not have ultimately concluded that Campos was acting “under the influence of extreme emotional distress” or that the circumstances presented “a reasonable explanation or excuse” for that emotional distress, see Utah Code Ann. § 76-5-205.5(1)(b) (LexisNexis 2012), the evidence provides some basis for such a conclusion and Campos would have been entitled to a jury instruction on extreme emotional distress had his counsel requested one.

At ¶ 32.

However, given the “heavy measure of deference” we apply to counsel’s judgments, Strickland v. Washington, 466 U.S. 668, 691 (1984), we cannot say that Campos’s trial counsel acted unreasonably in pursuing a different trial strategy. If Campos had prevailed on self-defense, he would have been entitled to acquittal. See Utah Code Ann. § 76-2-402(1) (LexisNexis 2008). Extreme emotional distress would have provided the jury with a middle ground, conviction for attempted manslaughter. See id. § 76-5-205.5(5)(b)(iv) (2012). But Campos had already provided the jury with a middle ground—imperfect self-defense—that was consistent with his version of events. See id. § 76-5-203(4)(a), (c) (2012) (providing that imperfect self-defense reduces attempted murder charge to attempted manslaughter). Trial counsel is given a wide latitude of discretion in making strategic decisions at trial, Strickland, 466 U.S. at 689; State v. Tennyson, 850 P.2d 461, 465, 468 (Utah Ct. App. 1993), and we cannot say that Campos’s trial counsel acted unreasonably in this case by pursuing one middleground defense and choosing to forego another that was arguably inconsistent with Campos’s version of events.

At ¶ 36.

Imperfect Self-defense

Campos next challenges his trial counsel’s failure to object to the verdict form’s description of imperfect self‐defense. Imperfect self-defense is an affirmative defense to a charge of attempted murder. Utah Code Ann. § 76-5-203(4)(a); State v. Low, 2008 UT 58, ¶¶ 22–24, 192 P.3d 867. This affirmative defense is available if the defendant “attempted to cause the death of another under a reasonable belief that the circumstances provided a legal justification or excuse for the conduct although the conduct was not legally justifiable or excusable under the existing circumstances.” Utah Code Ann. § 76-5-203(4)(a).

At ¶ 37. 

. . . once a defendant has produced some evidence of imperfect self-defense, the prosecution is required to disprove imperfect self-defense beyond a reasonable doubt. If the prosecution does not meet this burden, the charge of attempted murder is reduced to attempted manslaughter. See Utah Code Ann. § 76-5-203(4)(c).

At ¶ 38.

. . . Campos argues that by asking the jury [in the Verdict Form] whether it found beyond a reasonable doubt that the affirmative defense applied, the verdict form effectively shifted the burden of proof from the State to Campos.

At ¶ 39.

The fundamental problem with the verdict form used in this case is that it requires an affirmative defense to be established beyond a reasonable doubt. This is contrary to Utah law. A defendant need only produce enough evidence to raise a reasonable basis for the affirmative defense. See State v. Sellers, 2011 UT App 38, ¶ 16, 248 P.3d 70. “Once that initial showing is made, the burden shifts to the state to prove to the jury, beyond a reasonable doubt, that the defense lacks merit.” Id. In other words, once a defendant—or even the prosecution for that matter—has produced enough evidence to warrant the giving of an instruction on an affirmative defense, the defendant is entitled to acquittal or, as in the case of imperfect self-defense, reduction of the charge unless the prosecution carries its burden of disproving the defense beyond a reasonable doubt. See State v. Knoll, 712 P.2d 211, 214–15 (Utah 1985); Sellers, 2011 UT App 38, ¶¶ 15, 17; see also Utah Code Ann. § 76-5-203(4)(c). Thus, a jury may reduce an attempted murder charge to attempted manslaughter “even though the evidence of [imperfect] self-defense fell ‘far short of establishing the [defense] by a preponderance of the evidence upon the subject.’” See Knoll, 712 P.2d at 214 (quoting State v. Vacos, 120 P. 497, 502 (Utah 1911)).

At ¶ 41.

Here, sufficient evidence was presented to warrant a jury instruction on imperfect self‐defense. The judge gave a jury instruction on imperfect self-defense, and the instruction properly described the burden of proof. However, the verdict form directly contradicted that instruction by asking the jury to find either that the affirmative defense had been disproved beyond a reasonable doubt, or that it had been proved beyond a reasonable doubt. This was error.

At ¶ 43.

Campos’s trial counsel did not object to the verdict form, and in fact proposed a similarly flawed form—as did the prosecution. Campos therefore argues that he was deprived of his constitutional right to effective assistance of counsel. To show that his trial counsel’s assistance “fell below an objective standard of reasonableness,” Campos “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 687–89 (1984) (citation and internal quotation marks omitted).

At ¶ 44.

. . . Campos’s trial counsel thus had a duty to ensure that the jury was clearly and properly instructed on the burden of proof relevant to imperfect self-defense. The State has not argued that failure to fulfill that duty may be considered sound trial strategy, and we do not see how it could be. . . .

At ¶ 45.

To demonstrate that he is entitled to relief on appeal, Campos must show not only that his trial counsel performed deficiently, but also that he was prejudiced by his trial counsel’s deficient performance. See Strickland, 466 U.S. at 694. We will address the prejudice relevant to the verdict form in conjunction with the next allegation: prosecutorial misconduct.

At ¶ 46.

Prosecutorial Misconduct

 Campos challenges his trial counsel’s failure to object to several statements made by the prosecutor in closing arguments. While most of the statements Campos challenges do not rise to the level of prosecutorial misconduct, two statements do.

At ¶ 47.

To determine whether a prosecutor’s remarks are “so objectionable as to merit a reversal,” we must determine whether the remarks “call to the attention of the jurors matters which they would not be justified in considering in determining their verdict.” State v. Valdez, 513 P.2d 422, 426 (Utah 1973); accord State v. Todd, 2007 UT App 349, ¶¶ 15–16, 173 P.3d 170. “Counsel for both sides have considerable latitude in their arguments to the jury . . . .” Valdez, 513 P.2d at 426. However, a prosecutor “exceed[s] the bounds of propriety” when he or she “unfairly appeals to the sympathies,” “passions and prejudices of the jury.” Todd, 2007 UT App 349, ¶¶ 19–20 (citations and internal quotation marks omitted). “[T]he determination of guilt must not be the product of fear or vengeance but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that has been presented.” Id. ¶ 21 (citation and internal quotation marks omitted). Such arguments are inappropriate because they “divert the jury from its duty to decide the case on the evidence.” Id. ¶ 18 (citation and internal quotation marks omitted).

At ¶ 50.

Here, the prosecutor’s comments called attention to matters the jury should not have considered in reaching its verdict. We are most troubled by the prosecutor’s reference to Campos’s “stealing from [Serbeck] his ability to run, his ability to bike, his ability to walk his daughter down the aisle.” The statement was a direct appeal to the passions of the jury. It suggested to the jury that it should find Campos guilty out of vengeance or sympathy for the victim rather than based on what the facts and the law required.

At ¶ 52.

Taken as a whole, the prosecutor’s statements in the present case constituted prosecutorial misconduct. The prosecutor appealed to the passions of the jury and the jury’s duty to society to argue that Campos should be found guilty because of the tragic consequences suffered by Serbeck. The jury’s guilty verdict must be based on an impartial determination that the State proved each element of the charged crimes beyond a reasonable doubt, see Todd, 2007 UT App 349, ¶ 21, and disproved each affirmative defense beyond a reasonable doubt, see State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476. It must not be based on a desire to punish the defendant because of the victim’s tragic loss of “his ability to run, his ability to bike, his ability to walk his daughter down the aisle.”

At ¶ 53.

. . . A prosecutor diverts the jury from its duty to decide the case on the evidence when he is “permitted to make unfounded and inflammatory attacks on the opposing advocate.” United States v. Young, 470 U.S. 1, 9 (1985). Thus, remarks intended to “disparage the defense or otherwise impugn the forthrightness of the defense strategy” constitute misconduct. . . . However, referring to defense counsel’s theory as a red herring would not be inappropriate so long as the reference could be classified as a comment on the strength of “the evidence and the inferences and deductions arising therefrom,”

At ¶ 56.

The prosecutor’s comments here crossed the line from permissible argument of the evidence to an impermissible attack on defense counsel’s character. The prosecutor argued not only that the claim of self‐defense was a distraction, but also that it was a technique or ploy to confuse and distract the jury. That is, the prosecutor argued that defense counsel intended to mislead the jury. Arguing that the evidence does not support the defense theory and that the theory is thus a distraction from the ultimate issue is fundamentally different from arguing that defense counsel is intentionally trying to distract and mislead the jury.

At ¶ 57.

Campos argues that his trial counsel’s failure to alert the trial court to both instances of prosecutorial misconduct “fell below an objective standard of reasonableness”  and thus constituted deficient performance. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). We agree. The inappropriate and unchecked appeal to the sympathy of the jury created a “risk that jurors [would] feel obligated to seek revenge for the victim.” See Todd, 2007 UT App 349, ¶ 21. The suggestions that defense counsel was intentionally misleading the jury exacerbated “the possibility that the jury [would] give special weight to the prosecutor’s arguments.” Id. ¶ 17 (citation and internal quotation marks omitted). Such misconduct thus merited action on the part of defense counsel.

At ¶ 58.

. . . We acknowledge that “interruptions of arguments, either by an opposing counsel or the presiding judge, are matters to be approached cautiously.” Young, 470 U.S. at 13. However, in this case, “[a]t the very least, a bench conference might have been convened out of the hearing of the jury . . . and an appropriate instruction given.” See id. at 13–14. Defense counsel’s failure to request such a remedy or otherwise object constituted deficient performance.

At ¶ 59.

Each of the three instances of deficient performance identified above requires a showing of prejudice to merit reversal. See Strickland, 466 U.S. at 687; State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993); State v. Troy, 688 P.2d 483, 486 (Utah 1984). Under the doctrine of cumulative prejudice, we will reverse “if the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.” Dunn, 850 P.2d at 1224 (omission in original) (citation and internal quotation marks omitted). Campos argues that taken together, the cumulative effect of his trial counsel’s lapses was sufficiently prejudicial to warrant reversal. We agree.

At ¶ 61.

The Court discusses the likelihood that the incorrect instruction on the verdict form and prosecutorial misconduct were prejudicial to the defense, and determines that they undermine the verdict.

At ¶¶ 62-72.

Aggravated Assault

Expert Testimony

Campos challenges his aggravated assault conviction by contending that the trial court abused its discretion when it excluded expert testimony relevant to self‐defense.

At ¶ 73.

The State moved to exclude Campos’s expert. The expert intended to testify that if a police officer were in Campos’s situation, having shot one individual and facing a second individual who may or may not be armed, standard police safety training would teach the officer to hold his gun on the second individual until the scene was secure. Campos intended to offer this evidence in support of his argument that he acted in selfdefense, and that his actions were reasonable, when he pointed his gun at Serbeck’s neighbor. The trial court granted the State’s motion on several grounds, including that the expert testimony would not be helpful to the jury.

At ¶ 74.

Although the average juror would not have had direct experience with the situation Campos faced, the average Utah juror arguably has the requisite knowledge of handguns to assess the danger of the situation and the reasonableness of Campos’s belief that force was necessary to defend himself. Furthermore, testimony about police standards had at least some potential to confuse the issues when the jury was tasked to decide the reasonableness of Campos’s belief from the standpoint of a reasonable civilian (not a peace officer) under the circumstances. Although the trial court was not required to exclude the expert testimony on the basis that it was not helpful, we cannot say that doing so exceeded the limits of reasonability.

At ¶ 76.

Lesser Included Offense

Campos contends that the trial court erred by denying his request for an instruction on threatening with a dangerous weapon as a lesser included offense for his aggravated assault charge. The State responds that the evidence does not provide a rational basis for a verdict acquitting Campos of aggravated assault and convicting him of the lesser included offense.

At ¶ 77.

To obtain an instruction on a lesser included offense, “a defendant must show (1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence ‘provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); see also Utah Code Ann. § 76‐1‐402(3), (4) (LexisNexis 2012). The parties agree that the first element of the test is met here. Our supreme court held in State v. Oldroyd that threatening with a dangerous weapon qualifies as a lesser included offense of aggravated assault. See 685 P.2d 551, 554 (Utah 1984). Thus, the remaining question is whether the evidence presented at trial provides a rational basis for acquitting Campos of aggravated assault and convicting him of threatening with a dangerous weapon.

At ¶ 78.

In undertaking this analysis, we “must only decide whether there is a sufficient quantum of evidence presented to justify sending the question to the jury.” Baker, 671 P.2d at 159. “[W]hen the evidence is ambiguous and therefore susceptible to alternative interpretations, and one alternative would permit acquittal of the greater offense and conviction of the lesser, a jury question exists and the court must give a lesser included offense instruction at the request of the defendant.” Id. Furthermore, we “view[] the evidence in the light most favorable to the defendant requesting the instruction.” Powell, 2007 UT 9, ¶ 27.

At ¶ 79.

The Court discusses Campos’ arguments regarding the evidence and determines that “Campos has not carried his burden on appeal to demonstrate that the trial court’s ruling was erroneous.”

At ¶ 80.

Admissibility of victim’s prior bad acts on remand

On appeal, Campos fails to explain how evidence of Serbeck’s prior lies and violent actions serves a non‐character purpose. Indeed, in arguing that such evidence is relevant, Campos emphasizes that the evidence is “highly probative” because it would establish Serbeck’s “propensity for violence” and make it more probable that Serbeck lied on the witness stand. To establish that specific evidence is admissible under rule 404(b), Campos must show that the evidence “has independent relevance that does not depend on . . . propensity.”

At ¶ 85.

Because Campos has not established that the evidence was offered for a non‐character purpose, its admission is governed by rules 404(a), 405, and 608 of the Utah Rules of Evidence. “Rule 404(a) of the Utah Rules of Evidence acts as a general bar to ‘[e]vidence of a person’s character . . . for the purpose of proving action in conformity therewith on a particular occasion.’” State v. Leber, 2009 UT 59, ¶ 13, 216 P.3d 964 (omission in original) (quoting a prior but substantively similar version of rule 404(a)); see also Utah R. Evid. 404(a)(1); id. R. 404(b)(1). One exception to this general rule “allow[s] an accused to offer evidence of a ‘pertinent trait of character’ either of himself or of an alleged victim.” Leber, 2009 UT 59, ¶ 13 (quoting a prior but substantively similar version of rule 404(a)). A victim’s propensity for violence is “pertinent” to self‐defense under this exception and is therefore admissible under rule 404(a). See Utah R. Evid. 404(a)(2)(B); Leber, 2009 UT 59, ¶¶ 13, 15 n.3.

At ¶ 86.

“Once character evidence is deemed admissible under rule 404(a), the methods of proving character are limited by rule 405.” Leber, 2009 UT 59, ¶ 13. Rule 405(a) generally limits character evidence to “testimony about the person’s reputation” and “testimony in the form of an opinion.” Utah R. Evid. 405(a). However, “[o]n cross‐examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.” Id. Thus, “[r]eputation and opinion witnesses may only be asked about specific instances of conduct on cross‐examination for the purpose of challenging the credibility of the reputation or opinion testimony.” Leber, 2009 UT 59, ¶ 20. “On the other hand, rule 405(b) allows for proof of character through the use of ‘[s]pecific instances of conduct,’” but “only where character is an ‘essential element of a charge, claim, or defense.’” Id. ¶ 13 (quoting a prior but substantively similar version of rule 405(b)). “However, 405(b) seldom applies in criminal cases, and ‘self defense does not place . . . character at issue.’” . . .

At ¶ 87.

Because a defendant’s or victim’s violent character is “pertinent” to self‐defense under rule 404(a) but not “at issue” under rule 405(b), see Leber, 2009 UT 59, ¶¶ 15 n.3, 23, evidence is limited to reputation and opinion testimony on direct examination, and inquiry into relevant specific instances on cross‐examination. See Utah R. Evid. 404(a); id. R. 405. However, inquiry into specific instances on cross‐examination is limited to “character witness[es]”—that is, witnesses who offer “testimony about the person’s reputation” or “testimony in the form of an opinion” relevant to the pertinent character trait. See id. R. 405(a); Leber, 2009 UT 59, ¶ 20 & nn.4–5.

At ¶ 88.

In the present case, therefore, Campos was free to present witnesses to offer reputation or opinion testimony as to Serbeck’s character for violence. But, as the trial court correctly noted, Campos could not use his character witnesses to provide testimony of specific instances showing Serbeck’s character for violence. Nor could Campos cross‐examine Serbeck about such specific instances, because Serbeck did not testify as a character witness concerning his own character for peacefulness.

At ¶ 89.

On crossexamination of Serbeck, rule 608 would allow Campos to inquire into specific instances probative of Serbeck’s character for untruthfulness. But the trial court has discretion to allow or disallow such cross‐examination. See id. R. 608(b). If the issue arises again in a new trial, the court should make this determination based on relevance and the principles of rule 403.

At ¶ 91.

Blosch v. Natixis, 2013 UT App. 214, No. 20110315-CA (August 29, 2013)

ISSUES: Third-party Beneficiary Status

Judge Christiansen,

Kirk Blosch, Martin W. Merrill, and David O’Bagy appeal from a jury verdict finding that Blosch was not a third‐party beneficiary of a loan agreement between Natixis Real Estate Capital, Inc. (Natixis), Schoolhouse Downtown, LLC, and Schoolhouse Downtown’s principal (Borrower). Blosch also challenges the trial court’s denial of his pretrial motion for summary judgment. We affirm.

At ¶ 1.

The Court reviews the background of this case. Specifically, Blosch’s loan to Borrower contingent on Nextaxis’ willingness to release escrow funds to borrower and Blosch via a joint check;  Nextaxis’ agreement to do so; Nextaxis’ assignment of Borrowers’ loan agreement, including the escrow funds, to a third party; the third party’s direct transfer of the escrow funds to Borrower, and Borrower’s failure to repay Blosch.

At ¶¶ 2-10.

Timeliness of Appeal

Nextaxis argues that Blosch’s appeal is untimely because its Rule 59 motion did not have a memorandum attached, and therefore, it did not toll the 30 time period.  The Court rules:

Tolling of the time to appeal under rule 4 is triggered when a party “timely files in the trial court” one of the motions enumerated under rule 4(b), such as a rule 59 motion for a new trial. Id. Failure to submit a supporting memorandum as required by rule 7 of the Utah Rules of Civil Procedure may render such a motion insufficient. Menzies v. Galetka, 2006 UT 81, ¶ 68, 150 P.3d 480. However, “[a] party can timely move the court for relief despite the fact that its motion may be insufficient.”

At ¶ 17.

Summary Judgment

We agree that the trial court’s denial of Blosch’s motion for summary judgment was based on a purely legal issue. However, we disagree that the trial court never determined that the Joint Check Letter was ambiguous. It is well established that “[b]efore the [trial] court may consider extrinsic evidence of the parties’ intent . . . it must first conclude that the contract is facially ambiguous.” Wilson v. Johnson, 2010 UT App 137, ¶ 8, 234 P.3d 1156 (citing Daines v. Vincent, 2008 UT 51, ¶ 51, 190 P.3d 1269). If the trial court determines that the language of an agreement is facially ambiguous as a matter of law, “the intent of the parties is a question of fact.” Id. In light of this rule, we interpret the trial court’s ruling as implicitly finding the Joint Check Letter ambiguous as a matter of law as to whether the parties intended that agreement to modify the Loan Agreement so as to make Blosch a third‐party beneficiary. . . . As a result of its ruling, the trial court denied summary judgment because the disputed material facts concerning the intent of the Joint Check Letter could only be determined by the jury, and Blosch was therefore not entitled to judgment as a matter of law. . . .

At ¶ 22.

. . . “A contractual term or provision is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies.” Strohm v. ClearOne Communications, Inc., 2013 UT 21, ¶ 34 (citation and internal quotation marks omitted). “[F]acial ambiguity with regard to the language of the contract . . . is a question of law, while the intent of the parties is a question of fact.” Wilson, 2010 UT App 137, ¶ 8.

At ¶ 25.

With respect to Blosch’s status as a third‐party beneficiary of the Loan Agreement, “[a] third party may claim a contract benefit only if the parties to the contract clearly express an intention to confer a separate and distinct benefit on the third party.” Bybee v. Abdulla, 2008 UT 35, ¶ 36, 189 P.3d 40 (citation and internal quotation marks omitted). For the Joint Check Letter to unambiguously show that the parties intended to make Blosch a third‐party beneficiary of the Loan Agreement, “[t]he contract must be undertaken for the plaintiff’s direct benefit and the contract itself must affirmatively make this intention clear.” See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 50, 28 P.3d 669 (emphasis added).

At ¶ 26.

The operative language of the Joint Check Letter provides, “Upon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth’s Chris restaurant via a check issued to both [Borrower] and Mr. Blosch.” Blosch argues that this language unambiguously demonstrates Natixis’s and Borrower’s intent to make Blosch a third‐party beneficiary of the Loan Agreement. However, we see nothing in the language of the Joint Check Letter from which Natixis and Borrower’s intent in entering into the agreement can be ascertained. Whether or not Natixis and Borrower intended the Joint Check Letter for Blosch’s “direct benefit,” the language of the Joint Check Letter itself does not “affirmatively make this intention clear.” See id. ¶ 50. This “facial deficiency” is highlighted when compared with joint payment agreements held to unambiguously create a third‐party beneficiary status.

At ¶ 27.

We conclude that the Joint Check Letter is ambiguous as to whether the intent of the parties in entering into the agreement was to directly benefit Blosch as a third‐party beneficiary. The operative language of the Joint Check Letter contains no expression of intent to benefit Blosch, and instead merely directs that “[u]pon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth’s Chris restaurant via a check issued to both [Borrower] and Mr. Blosch.” By comparison, the language of the joint payment agreement in Gender [an Oregon case discussed in paragraph 28] demonstrated the parties’ intent to enter into the agreement to “allow[ Gender] to collect the sum of $225,000.00 for work performed by their group on this project,” due to the “substantial amount of work” performed by Gender, and the “financing needs” of Eidal. 929 P.2d at 1036. Absent a similarly specific and clear expression of the parties’ intent to benefit a third party by entering into the agreement, we cannot read the plain language of the Joint Check Letter, which merely directs the manner in which payment under a contract shall be made, as clearly expressing an intent by the parties to assume an enforceable obligation to the third‐party joint payee. See Eastern Aviation, 8 Cal. Rptr. 2d at 358; Bybee, 2008 UT 35, ¶ 36. While there may be other evidence extrinsic to the Joint Check Letter from which the parties’ intent could be determined, that is a factual question and is inappropriate for decision on summary judgment. Thus, the trial court properly concluded that the Joint Check Letter was ambiguous as a matter of law, and the trial court’s denial of summary judgment was therefore correct.

At ¶ 30.

Sufficiency of Evidence

Blosch primarily attacks the sufficiency of the Loan Officer’s testimony at trial regarding the Loan Officer’s knowledge and intent—and therefore Natixis’s knowledge and intent—in drafting the Joint Check Letter. Blosch argues that this evidence of Natixis’s intent is legally insufficient for the jury to find that Blosch was not a third‐party beneficiary of the Loan Agreement because the language of the Joint Check Letter unambiguously establishes Natixis and Borrower’s intent to make Blosch a third‐party beneficiary, and Natixis and Borrower had the right to modify the provision of the Loan Agreement prohibiting third‐party beneficiaries. We have determined that the Joint Check Letter did not unambiguously establish Natixis and Borrower’s intent to make Blosch a third‐party beneficiary of the Loan Agreement. Therefore, because the Joint Check Letter is ambiguous as to the parties’ intent, evidence that Natixis did not intend to make Blosch a third‐party beneficiary of the Loan Agreement, if believed by the jury, would be sufficient to support the jury’s verdict.

At ¶ 32.

Here, the Loan Officer’s testimony that he believed the Loan Agreement prohibited third‐party beneficiaries, that he did not intend to modify the Loan Agreement by entering into the Joint Check Letter, that he drafted the Joint Check Letter to accommodate Borrower, and that he did not know that Borrower had asked for the Joint Check Letter to be drafted in order to facilitate a loan from Blosch, all tend to demonstrate that Natixis did not intend to make Blosch a third‐party beneficiary of the Loan Agreement. Additionally, the Loan Officer’s testimony that he believed Borrower could revoke the Joint Check Letter or otherwise direct the disbursement of funds notwithstanding the Joint Check Letter, can be understood to show that Natixis did not believe or intend the Joint Check Letter to create in Blosch an enforceable right to receive payment of the Escrowed Funds from Natixis once the terms of the Loan Agreement were satisfied. Based on this evidence regarding Natixis’s intent, we do not believe that the evidence so clearly preponderates against the jury’s verdict that reasonable people could not differ on the outcome of the case. See Watts, 2009 UT App 137, ¶ 26.

At ¶ 33.

The Court assumes a jury instruction regarding assignment of a loan was erroneous, but determines it could not have affected the verdict.

At ¶¶ 35-38.