Utah Court of Appeals Cases, February 22, 2013

February 22, 2013

Utah Court of Appeals Cases

Helfrich v. Adams, 2013 UT App 37, No. 20110459-CA (February 22, 2013).

Affirming Judge John R. Morris of the Second District, Farmington Department.

Judge Davis,

Issues:

1)      Did the six year breach of contract statute of limitations pass before the action was filed?

2)      Did the “equitable discovery rule” toll the statute of limitations?

3)      Should the Ruling have been reconsidered upon the discovery of new evidence?

Ruling:

Issue 1:

“In a breach of contract action the statute of limitations ordinarily begins to run when the breach occurs.” Butcher v. Gilroy, 744 P.2d 311, 313 (Utah Ct. App. 1987).

At. ¶ 8.  Interpreting the contract (a Promissory Note), the Court determines that breach occurred in 1999.  Seven years before the complaint was filed.

Issue 2:

There are two circumstances where the “equitable discovery rule may operate to toll an otherwise fixed statute of limitations period”:

(1) where a plaintiff does not become aware of the cause of action because of the defendant’s concealment or misleading conduct, and (2) where the case presents exceptional circumstances and the application of the general rule would be irrational or unjust, regardless of any showing that the defendant has prevented the discovery of the cause of action.

Russell Packard Dev., Inc. v. Carson, 2005 UT 14, 25, 108 P.3d 741 (citation and internal quotation marks omitted).

At ¶ 9.

In order to successfully toll the statute of limitations under the concealment branch of the equitable discovery rule, Plaintiffs must demonstrate that Finan did “not become aware of the cause of action because of [Adams’s] concealment or misleading conduct.” See Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25, 108 P.3d 741 (emphasis added).

At ¶ 14.

Failure to disclose the transfer is not the “concealment or misleading conduct” contemplated by the equitable discovery rule.  Plaintiffs did not present any evidence to suggest Defendant was engaged in misleading conduct.

At ¶ 15.

“before a statute of limitations may be tolled under [the equitable discovery rule], the plaintiff must make an initial showing that he did not know nor should have reasonably known the facts underlying the cause of action in time to reasonably comply with the limitations period.”

At ¶ 9 (quoting Berneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128).

Given that the transfers [triggering Defendant’s obligation under the contract] were a matter of public record, we agree with the trial court that Finan had constructive notice that the transfers had occurred and, through the exercise of reasonable diligence, could have discovered her claims within the limitations period.

At ¶ 12.

Issue 3:

A Rule 60 Motion does allow reconsideration of a ruling if new evidence would change the result, but in this case the new evidence was a statement made by the Defendant after the statute of limitations had already expired.  Accordingly, it could not have changed the result.

T3 Properties v. Persimmon Investments, 2013 UT App. 38, 20110445-CA (February 22, 2013)

Affirming Judge L.A. Dever of the Third District, Salt Lake Department.

This opinion deals with the interpretation of the 2001 statutes regarding the creation of judgment liens.  In June 2001, Defendant obtained a judgment against a prior owner of a piece of property.  In January 2002, the prior owner transferred the subject property to a third party.  The third party later sold the property to Plaintiff in 2006.  In 2009 Defendant attempted to collect the judgment by placing a judgment lien on the property.  Plaintiff sued for a declaratory judgment that Defendant did not have a lien on the property.  The trial court granted Plaintiff’s Motion for Summary Judgment.

Judge Roth,

Interpreting the 2001 version of the judgment liens statute, the Court holds that the statute requires the judgment be both recorded in the Registry of Judgments and accompanied by an information statement before the property is transferred for a judgment lien to take effect.

At. ¶ 18.

State v. Martinez, 2013 UT App. 39, No. 20110015-CA (February 22, 2013)

Affirming Judge Himonas, Third District, Salt Lake City

Criminal Law: Defendant appeals the denial of his Motion for New Trial and Motion to Appoint New Counsel alleging that his attorney labored under a conflict of interest (i.e. his attorney admitted being intimidated by him).

Judge Orme,

The Court reviews all of the efforts made by counsel to defend Defendant.  The alleged conflict of interest involves counsel’s admission that he feels intimidated by the client and it has caused him to do things that are otherwise against his professional judgment.

The trial court ruled that Defendant could not get new counsel by creating an intimidating situation and denied the Defendant’s Motion to Appoint New Counsel.

“the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.  If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client’s evaluation of his performance.” United States v. Cronic, 466 U.S. 648, 657 n.21 (1984).

At ¶ 24.

Defendant has not demonstrated how counsel failed to represent his best interests at trial. Therefore, we are not persuaded that defense counsel actually labored under a conflict of interest. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)

At ¶ 29.

“[W]hen a defendant expresses dissatisfaction with counsel, a trial court must make some reasonable, non‐suggestive efforts to determine the nature of the defendant’s complaints.” State v. Pando, 2005 UT App 384, ¶ 24, 122 P.3d 672 (citations and internal quotation marks omitted) (alteration in original).

At ¶ 30.

Because we determine that Defendant’s attorneys did not have a conflict of interest and that the trial court adequately inquired into Defendant’s dissatisfaction within his counsel, we review the court’s ultimate denial of his motion for substitution of counsel only for an abuse of discretion. See State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997).

At ¶ 32.

Judge Thorne Jr. (Dissenting)

I respectfully dissent from the majority’s decision determining that the trial court was adequately apprised of Defendant’s complaints before it denied Defendant’s motion for substitution of counsel.

At ¶ 34.

The events of this case present several troubling conflict of interest issues pertaining to whether defense counsel’s actions violated their duty of loyalty to their client and whether the trial court properly performed its duty of inquiry. The first task is to consider whether defense counsel breached their duty of loyalty and then consider whether the trial court properly inquired into the potential conflict of interest issues.

At ¶ 38.

Because defense counsel failed to consult with Defendant, or even inform him of their actions on the conflict of interest issue, Defendant was uninformed and unprepared to present his request for substitute counsel. Based on defense counsel’s actions, I conclude that counsel’s personal interests diverted their efforts away from Defendant’s interest and may well have impaired their abilities to represent Defendant, thereby violating their duty of loyalty to Defendant.

At ¶ 40.

Here, the trial court did not conduct a proper inquiry with defense counsel regarding their conflict of interest claim during the initial in chambers discussion of the matter, nor did the court inquire with Defendant about his relationship with his counsel after disclosure of the potential conflict. Without such an inquiry the trial court was unable to assess the situation and determine whether an actual conflict of interest existed.

At ¶ 41.

I would conclude that the trial court erred in not conducting a more meaningful inquiry into the conflict of interest issue.

At ¶ 46.

State v. Sommerville, 2013 UT App. 40, No. 20081042-CA (February 22, 2013)

Affirming Judge Paul Maughan’s, Third District, Salt Lake Department, denial of a Motion to Dismissed based on double jeopardy.

This is a good outline of Utah’s Single Criminal Episode Statute, Double Jeopardy, and Res Judicata.

Judge Roth,

In Justice Court, Defendant was charged with several misdemeanors including following too closely and misdemeanor DUI.  He paid the fine for following too closely (because notice of the fine was sent separately) and the city moved to dismiss the remaining charges believing that they arose from the same criminal episode.

Two months later, Salt Lake County charged Defendant with felony DUI in the district court based on the same incident.  The information also included the remaining misdemeanor charges that the Justice Court had dismissed.  Defendant moved to dismiss based on double jeopardy and res judicata.

The district court dismissed the misdemeanor offenses but declined to dismiss the felony DUI offense, concluding that further prosecution of the DUI offense was not barred by the Single Criminal Episode Statute or by double jeopardy or res judicata.  Sommerville appeals this decision.

[We] affirm the district court’s decision not to dismiss the felony DUI offense because we are persuaded that prosecution of that offense is not barred by the Single Criminal Episode Statute, double jeopardy, or res judicata.

At ¶ 2.

Single Criminal Episode Statute

The issue is whether the disposition of the following too closely offense on the citation and the dismissal of the remaining misdemeanor offenses, including the DUI offense, in the justice court bars subsequent prosecution of the DUI offense as a felony in the district court.

At ¶ 8.

First, the issuance and disposition of the citation does not constitute a prosecution under the Single Criminal Episode Statute. And second, the prosecution of the misdemeanor DUI offense in the justice court was not concluded in a manner that bars subsequent prosecution.

At ¶ 11.

the justice court simply granted the City’s voluntary motion to dismiss the misdemeanor DUI. Thus, that dismissal did not involve any “determination inconsistent with a fact that must be established to secure conviction in the subsequent prosecution.” Id. § 76-1-403(1)(b)(iv). Therefore, because the misdemeanor DUI offense was not resolved in a way that implicates the Single Criminal Episode Statute, the prosecution in the justice court does not bar the subsequent prosecution of the felony DUI offense in the district court.

At ¶ 20.

Double Jeopardy

Double jeopardy . . . protects a criminal “defendant from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Rudolph, 970 P.2d 1221, 1230 (Utah 1998).

At ¶ 23.

Because “‘jeopardy does not attach until a defendant is put to trial before the trier of the facts,’” State v. Cahoon, 2009 UT 9, ¶ 12, 203 P.3d 957 (quoting Serfass v. United States, 420 U.S. 377, 391 (1975)), double jeopardy “does not attach at pretrial proceedings,” id. ¶ 13; see also id. ¶ 13 n.15

At ¶ 24

At the time of dismissal, jeopardy had not attached to the DUI offense, whether classified as a misdemeanor or a felony, because it was dismissed during pretrial proceedings, before Sommerville had been put to trial before the finder of fact.  See Cahoon, 2009 UT 9, ¶¶ 12–13.

At ¶ 25.

Res Judicata

The Court outlines the law regarding “claim preclusion” and “issue preclusion.”

both claim preclusion and issue preclusion require that “the first suit must have resulted in a final judgment on the merits.” Mack, 2009 UT 47, ¶ 29. . . . Sommerville has not convinced us that the City’s voluntary dismissal of the misdemeanor DUI offense in the justice court was a final judgment on the merits.

At ¶ 31.

State v. Collins, 2013 UT App 42, No. 20110164-CA (February 22, 2013)

Reversing and Remanding Judge Judith Atherton’s, Third District, Salt Lake Department, denial of Defendant’s Motion to Reinstate the Time for Appeal.

Judge Voros,

At sentencing the trial judge did not advise the Defendant of his right to appeal.  Defense counsel did advise Defendant of the right to appeal, but not the 30 day deadline.  Instead defense counsel told Defendant that if he wanted to appeal he needed to let him know within two weeks.  Defendant did not timely appeal and moved for reinstatement of the time.  The motion was denied.

a defendant is entitled to have the trial court reinstate the thirty-day time frame for filing an appeal where the defendant can prove by a preponderance of the evidence “that he has been unconstitutionally deprived, through no fault of his own, of his right to appeal.”

At ¶ 7.

We . . . conclude that properly advising a defendant of his right to appeal includes advising him of the time within which an appeal must be filed. Accordingly, neither the sentencing court nor Collins’s attorney properly informed Collins of his right to appeal. Consequently, under Manning and Johnson v. State, Collins has “a valid claim for reinstatement of that right,” Johnson v. State, 2006 UT 21, ¶ 26.

At ¶ 9.

a defendant is not required to show in addition that, had he been informed of his rights, he would have appealed.

At ¶ 15.

Express Recovery Services v. Cochron, 2013 UT App. 43, No. 20120882-CA (February 22, 2013)

Affirming Judges Andrew Stone and Su Chon, Third District, West Jordan Department.

Per Curiam,

This matter is before the court on its own motion for summary disposition. This court cannot review the issues raised because Cochron has not provided an adequate record on appeal. See Utah R. App. P. 11 (discussing the record requirements on appeal).

At ¶ 1.

All issues raised by Cochron in his docketing statement and in his response to this court’s motion for summary disposition involve rulings made during the course of his trial. Cochron has failed to provide this court with a transcript of those proceedings. Without such a transcript, we must presume the correctness of the underlying decisions

At ¶ 3.

In Re K.K. and K.K, 2013 UT App 44, No. 20120868-CA (February 22, 2013)

Judge Scott Johansen, Fourth District Juvenile, American Fork Department

Per Curiam,

Appeal dismissed for failing to file petition for appeal within 15 days of notice of appeal.

Durbin v. Dept. of Workforce Services, 2013 UT App 45, No. 20120966-CA (February 22, 2013)

Original Proceeding in this Court.

Per Curiam,

John Durbin petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of unemployment benefits based on a finding that Durbin was discharged for just cause. We decline to disturb the Board’s decision.

At ¶ 1.

This court will uphold the Board’s decision applying law to facts “so long as it is within the realm of reasonableness and rationality.” See Arrow Legal Solutions Grp., PC v. Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830.

At ¶ 2.

The Court finds the decision rational.

Munoz v. Dept. of Workforce Services, 2013 UT App 46, No. 20121036-CA (February 22, 2013)

Original Jurisdiction

Per Curiam,

Betty Munoz petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of unemployment benefits based on a finding that Munoz was discharged for just cause. We decline to disturb the Board’s decision.

At ¶ 1.

This court will uphold the Board’s decision applying law to facts “so long as it is within the realm of reasonableness and rationality.” See Arrow Legal Solutions Grp., PC v. Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830.

At ¶ 2.

The Court finds the decision rational.

State v. Scott, 2013 UT App. 47, No. 20130035-CA (February 22, 2013)

Affirming Judge Kevin Allen’s, First District, Logan Department, denial of a motion to reinstate the time to file a direct appeal.

Per Curiam,

Scott filed an appeal and pursued it to disposition. Under these circumstances, Scott was not deprived of his constitutional right to direct appeal.

Scott subsequently filed a Manning motion claiming that he was denied his right to appeal because his appellate counsel was ineffective both in briefing his direct appeal and in failing to file a petition for writ of certiorari by the Utah Supreme Court.

“[d]efendants who gain entry to appellate courts and have their appeals concluded either by a ruling on the merits or involuntary dismissal have exhausted their remedy of direct appeal and are thereby drawn into the ambit of the [Post‐Conviction Remedies Act (PCRA)].”

At ¶ 3 (quoting State v. Rees, 2005 UT 69 ¶ 18, 125 P.3d 874).

Jensen v. Skypark Landowners, 2013 UT App 48 No. 20110756-CA (February 22, 2013)

Affirming Judge Thomas Kay’s, Second District, Farmington Department grant of summary judgment in favor of Skypark, the denial of Jensen’s Motion for partial summary judgment, and an award of attorney fees.

Per Curiam,

The trial court was correct that there were no material issues of fact. 

Furthermore, after review of the proceedings, it is apparent that the “dispute” asserted in response was not an issue properly before the trial court in the summary judgment posture. Skypark moved for summary judgment seeking dismissal of the claims asserted in the amended complaint. Those were the only claims before the court for disposition. The matter of whether Skypark was a valid organization formed under the governing 1979 Declarations was not a claim in the amended complaint but was raised for the first time in response to the summary judgment motion.  Accordingly, the issue was not relevant to the matters on summary judgment and thus did not raise any material factual dispute regarding the claims before the trial court. See Eldridge, 2007 UT App 243, ¶ 33. The trial court correctly declined to consider claims raised for the first time in response to a summary judgment motion. See, e.g., id. ¶ 40.

At ¶ 4.