March 7, 2013, Utah Court of Appeals Cases

March 7, 2013

Utah Court of Appeals Cases

Cook v. Cook, 2013 UT App 57, No. 20120035‐CA (March 7, 2013)

Affirming Judge Ben Hadfield’s First District, Brigham City Department, divorce decree.

Husband appeals the adequacy of the trial court’s findings.  Husband also challenges the substance of the trial court’s ruling.

Judge Voros,

The Court declines to consider the merits of Husband’s challenges to the adequacy of the trial court findings because Husband did not preserve the issue at the trial court level.

At ¶¶ 3-4.

The Court determines that the trial court’s other rulings were not an abuse of discretion, even though they departed from the custody evaluator’s recommendation.

“[i]t is well settled that the present value . . . of retirement accounts accrued during the marriage[] are marital assets and, whenever possible, should be valued as of the time of the divorce.” Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct. App.

1990).

At ¶ 11.

Livingston Financial, LLC v. Migliore, 2013 UT App. 58, No. 20120551‐CA (March 7, 2013)

Affirming Judge Robert Adkins, Third District, Tooele Department.

The Court dismisses two issues on appeal for lack of jurisdiction due to untimely notice of appeal.  The Court affirms the trial court’s denial of attorney fees sought pursuant to Utah Code Ann. § 78B-5-825.

Judge Orme,

A rule 60(b) motion does not toll the time for appeal from a final judgment under rule 4(b), but an order denying relief under rule 60(b) is an appealable order. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989) (“It is well settled under Utah law [that] an order denying relief under Rule 60(b) is a final appealable order.”).

At ¶ 3.

In the May 12, 2012 order awarding attorney fees, the district court found that Livingston prevailed in the matter; that the renewed motion to set aside the judgment was frivolous for the reasons stated in the December 2011 ruling; and that the renewed motion was brought to hinder and/or delay Livingston in collecting on the judgment. After finding that the affidavit of Livingston’s counsel was sufficient and the fees sought were reasonable, the district court awarded Livingston $5,035 in attorney fees. Thus, the district court made the required findings to support an award under section 78B‐5‐825. See Hermes Assocs. v. Park’s Sportsman, 813 P.2d 1221, 1225 (Utah Ct. App. 1991) (stating that the statute requires that the party seeking fees must prevail, the claim asserted by the opposing party must be without merit, and the claim must not be asserted in good faith).

At ¶ 8.

A party acts in bad faith when he brings an action and either (1) lacks an honest belief in the propriety of the activities in question, (2) intends to take unconscionable advantage of others, or (3) intends to or has knowledge of the fact that his actions will hinder, delay, or defraud others. Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (citations and internal quotation marks omitted).

At ¶ 9.

Dinger v. Dept. of Workforce Services, 2013 UT App 59. No. 20120093‐CA (March 7, 2013)

Original Proceeding.

Judge McHugh,

Dinger challenges the Department of Workforce Service’s determination that he is ineligible for unemployment benefits.  The Court determines that Dinger failed to marshal the evidence and that the Department’s findings were supported by substantial evidence and declines to disturb the ruling.

“Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d 746, 758 (Utah Ct. App. 1997) (citations and internal quotation marks omitted).

At ¶ 12.

The Court outlines some rules governing conduct which may constitute insubordination.

At ¶ 16.

Antion Financial v. Christensen, 2013 UT App. 60, No. 20100750‐CA (March 7, 2013)

Affirming in part and reversing in part Judge Denise Lindberg, Third District, Salt Lake Department.

The Court interprets Utah Code section 57‐1‐27, which governs the public sale of property under a trust deed

Judge Christiansen,

Background:

During a trust sale for a piece of property there were three bidders.  The top bidder failed to meet the terms to purchase the property and revoked its bid.  Accordingly, the Trustee offered to sell to the second highest bidder, defendant.  Defendant “resubmitted” its bid and agreed to purchase, but was unable to meet the terms to purchase the property and revoked the ”resubmitted” bid. The third bidder, Antion Finanacial, also the beneficiary of the trust deed, took the property, and sued the first two bidders for the sum lost due to their failure to purchase the property.  The trial court entered a judgment against Christensen and he appeals.

Our reading of the plain language of the statute, in conjunction with our analysis of a prior version of the statute, leads us to conclude that the legislature intended for the trustee’s acceptance of the highest bid to constitute a rejection of all lower bids. Thus, each bid is considered an irrevocable offer, but only until the highest bid has been accepted. At that point, the trustee rejects all of the lower bids. If the highest bidder fails to perform, as occurred in this case, the trustee may either renotice the sale or sell to the next highest bidder who remains willing to purchase at his or her bid price. The next highest bidder, in other words, the original, second highest bidder—here, Christensen—may resubmit his or her offer, which likewise then becomes irrevocable until the trustee accepts it. If the next highest bidder (the original second highest bidder) does not resubmit his or her bid, then the trustee shall sell to the third highest bidder, who would become the next highest bidder. Or, if the next highest bidder (here, the second highest bidder) fails to perform, the trustee shall again have a choice between renoticing the sale or selling to the next highest bidder (the original third highest bidder).

At ¶ 20.

In providing for the next highest bidder to resubmit his or her bid, the statute creates a scenario where the identical bid information sheet utilized in the original trustee sale carries over and provides the required writing to satisfy the statute of frauds. Thus, in a trustee’s sale context, as long as the terms of sale remain the same, a bidder information sheet continues to be a written memorialization of the sale of the foreclosed property.

At ¶ 28.

The Court next determines how to calculate damages.  The statute provides that a bidder refusing to pay is liable for any loss occasioned by the refusal, including interests [and] costs . . . .”  Urah Code § 57-1-27(1)b).

At its most basic level, the parties’ dispute over the calculation of Antion’s damages comes down to whether the trial court erred by not calculating Antion’s damages as the difference between Christensen’s bid price and the fair market value of the property on the date of the credit sale, or if the trial court instead correctly measured damages in the amount it would take to put Antion back in the position it would have been in had Christensen performed. We find Christensen’s argument compelling.

At ¶ 31.

Because section 57‐1‐27 is not more specific concerning the determination of the amount of “any loss occasioned by the refusal,” we look to the deficiency statute to discern the legislature’s intent.

At ¶ 33.

The parties agree that the fair market value of the property is $1,500,000. The measure of Antion’s loss is the difference between Christensen’s bid of $1,500,002 and the amount for which the property actually sold, so long as the sale price exceeds the fair market value. Here, the sale price, represented by Antion’s credit bid, was $1,500,001, an amount that exceeded the agreed‐upon fair market value. Accordingly, Antion’s “loss occasioned by the refusal” of Christensen to honor his bid was one dollar.

At ¶ 35.

[T]he statute’s plain language leaves no doubt that the legislature intended to award only those attorney fees and costs, “occasioned by the refusal” of the winning bidder to perform. See id. The intent of the statute is not to award attorney fees incurred in litigating those damages.

At ¶ 37.

State v. Augustine, 2013 UT App 61, No. 20110454‐CA (March 7, 2013)

Judge Davis,

Exclusion of Expert Testimony Regarding “Extreme Emotional Distress”

The trial court . . . excluded [Augustine’s] expert testimony [about “significant issues in [Augustine’s] background, childhood and onward, that would affect his ability to deal with certain stressors”] on relevance grounds, explaining that extreme emotional distress involves “an objective, . . . reasonable person” standard and, as proffered, the expert testimony would address only a subjective standard of whether the behavior “was reasonable for this individual.”

At ¶ 2.

We affirm the trial court’s exclusion of the expert testimony, but we do so on slightly different grounds than those cited by the trial court.

At ¶ 3.

The [extreme emotional distress] defense cannot be based on emotions and stress a defendant brought about himself; rather, “a person suffers from an extreme emotional disturbance when he is exposed to extremely unusual and overwhelming stress.” Shumway, 2002 UT 124, ¶ 9 (citation and internal quotation marks omitted). This distinction of “exposed” versus “self‐imposed” “guide[s] the evaluative process of extreme emotional distress claims in our courts.” White, 2011 UT 21, ¶¶ 22–23 (recognizing that because “all intentional homicides, with the exception of those by cold‐blooded killers or in the course of a felony, are abnormal acts for the perpetrators and the result of strong emotions and stresses[,] . . . a distinction must be drawn so that this defense will only be applicable to those homicides which appropriately qualify under the underlying purpose of this mitigating defense and not en masse to all acts constituting murder, in the second degree” (citation and internal quotation marks omitted)).

At ¶ 5.

The Court does not review the trial court’s exclusion of expert testimony or jury instruction on the extreme emotional distress issue because Augustine was not entitled to the defense.

At ¶ 7.

The triggering stressors that Augustine enumerates are largely self‐imposed—he sought out J.E. for retribution for what was an assumption that J.E. indirectly passed along an STD to Augustine. Augustine went to J.E.’s house looking for a fight. Thus, the ensuing fight and adrenaline spiking are products of his own behavior. . . . “Thus, defendant’s emotional disturbance was a product of his knowingly or intentionally involving himself in the commission of a crime and [is not] excusable [under the extreme emotional distress defense].” See State v. Gardner, 789 P.2d 273, 276, 283 (Utah 1989)

At ¶ 7.

Mens Rea Element of Accomplice Liability

Augustine argues that the accomplice liability jury instruction did not adequately explain the mens rea requirement for the underlying offense, attempted murder.  The Court reviews both the accomplice liability instruction and the attempted murder instruction together, and determines that when read together the instructions accurately informed the jury of the mens rea requirement for attempted murder on an accomplice liability theory.

At ¶ 10.

Compelled Testimony

Last, Augustine contends that after Stapley informed the court of his intention to remain silent, having Stapley subsequently refuse to testify in the presence of the jury allowed the State to support its case with the inferences that could be drawn from Stapley’s refusal, thereby denying Augustine his constitutional right to a fair trial.

At ¶ 11.

The issue here boils down to whether the conversation that occurred outside of the jury’s presence during which Stapley indicated that he had been planning on refusing to testify amounted to his having actually invoked a Fifth Amendment privilege. A witness’s “exercise of the [Fifth Amendment] privilege is not evidence to be used in the case by any party.” State v. Travis, 541 P.2d 797, 799 (Utah 1975) . . . It “is sufficient to defeat [the] suggestion [that a witness is being called for an] improper . . . purpose” when the attorney calling the witness has “a colorable—albeit ultimately invalid—argument” that the witness could not validly claim the privilege. See id. Compare Namet, 373 U.S. at 188 . . . . Thus, “reversible error is [not] invariably committed whenever a witness” is called before the jury and “claims his privilege not to answer.” Namet, 373 U.S. at 186; accord State v. Boyland, 495 P.2d 315, 317 (Utah 1972).

At ¶ 12.

Under the facts and circumstances of this case, we do not believe that error, let alone reversible error, occurred or that Augustine’s constitutional rights were violated when the trial court permitted the State to call Stapley as a witness simply because there was a likelihood that Stapley would refuse to testify regardless of whether he could validly do so. The parties and the trial court were unsure whether Stapley could validly claim the privilege. Stapley was present when both his trial counsel and the trial court expressed their hesitation as to whether Stapley could validly claim a Fifth Amendment privilege in this case and he was reminded by his counsel and the court what the ramifications of remaining silent would be if the privilege was deemed inapplicable. Given the emphasis on the uncertainty as to what Stapley’s rights were in this case, it was reasonable for the State to call Stapley to allow him the opportunity to change his mind and to determine if the trial court would accept Stapley’s exercise of the privilege. This is far from a situation where the prosecutor “call[ed] a witness who he kn[ew would] claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.” See Travis, 541 P.2d at 799 (citation and internal quotation marks omitted). The State did not pose any questions to Stapley before he was excused, Stapleyuttered four words on the witness stand, and the trial court denied the State’s attempt to recall Stapley as a rebuttal witness after the defense rested. Without more, we are not convinced that the prosecution’s actions amount to what Augustine describes as a “flagrant . . . attempt[] to improperly influence the jury.” (Internal quotation marks omitted.) Accordingly, we conclude that it was not reversible error or a violation of Augustine’s constitutional rights for the State to request and the trial court to require that Stapley refuse to testify in the presence of the jury.

At ¶ 14.

Hollenbach v. Salt Lake City Civil Service Commission, 2013 UT App 62, No. 20121073‐CA (March 7, 2013)

Original Proceeding

Per Curiam Decision,

Greg Hollenbach seeks review of the Salt Lake City Civil Service Commission’s December 13, 2012 discovery and prehearing order. The Court determines that the order was not a final resolution of the matter and it lacks jurisdiction.

State v. Knowlden, 2013 UT App. 63, No. 20120311‐CA (March 7, 2013)

Affirming Judge Derek Pullan’s, Fourth District, Heber Department, order denying Defendant’s motion to withdraw a no contest plea.

Per Curiam Decision,

A “plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made.” Utah Code Ann. § 77‐13‐6(2)(a) (LexisNexis 2012). “A plea is knowing and voluntary if it is made ‘with sufficient awareness of the relevant circumstances and likely consequences.’” State v. Moa, 2012 UT 28, ¶ 29, 282 P.3d 985 (quoting Bradshaw v. Stump, 545 U.S. 175, 183 (2005)). Further, “[t]o show that a plea was not knowing and voluntary, a defendant must show either that he did not in fact understand the nature of the constitutional protections that he was waiving by pleading guilty, or that he had ‘such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.’” State v. Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371 (quoting Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976)).

At ¶ 3.

Knowlden acknowledges that the district court complied with rule 11 of the Utah Rules of Criminal Procedure. During his plea colloquy, Knowlden represented that he had sufficient time to speak with his counsel. Further, he acknowledged that he understood all of the rights he was waiving by entering his plea. This included the right to prepare a defense and confront the witnesses against him. Thus, Knowlden understood that he was giving up the right to conduct more discovery and develop additional defenses by entering his pleas. Further, while Knowlden indicated during the colloquy that he did not agree with the factual basis supporting the charges he does not allege that he failed to understand those facts. Accordingly, Knowlden fails to demonstrate that he did not understand the constitutional protections he was waiving or the factual basis for the charges against him. Thus, he has failed to demonstrate that his pleas was not knowing.

At ¶ 5.

Knowlden also fails to demonstrate that his pleas were not voluntary. Knowlden’s expressed desire to assert his right to delay sentencing in order to think about the proceedings does not demonstrate that the pleas were not voluntary. Nothing in that statement demonstrates a lack of voluntariness. At most, it shows trepidation or second thoughts, but trepidation or second thoughts do not make no contest pleas involuntary. See United States v. Isom, 85 F.3d 831, 837 (1st Cir. 1996) (stating that a motion to withdraw must rest on more than “defendant’s second thoughts about some fact or point of law”). Therefore, Knowlden has failed to demonstrate that his pleas were not voluntary.

At ¶ 6.