April 25, 2013, Utah Court of Appeals Case Summaries

April 25, 2013

Utah Court of Appeals Cases

State v. Ortiz, 2013 UT App 100, No. 20120198-CA (April 25, 2013)

ISSUE: Fair trial; Scope of the Utah Rules of Evidence

Judge Davis,

Daniel Martinez Ortiz appeals his conviction for aggravated robbery, a first degree felony, see Utah Code Ann. § 76‐6‐302 (LexisNexis 2012), on the ground that he was unfairly prejudiced by the trial court’s denial of his motion for permission to cover his facial tattoos at trial.   We affirm.

At ¶ 1.

The Court rules that Defendant’s tattoos were not “evidence” in the trial merely because they were visible.  Accordingly, the Rules of Evidence do not apply in this case.

At ¶¶ 2-4.

State v. Williams, 2013 UT App 101, No. 20110525-CA (April 25, 2013)

ISSUE: Parol Evidence in Criminal Cases; Definition of "Material Fact"; Motions to Withdraw; and Restitution

Judge Davis,

Dike Williams appeals his convictions of three counts of securities fraud, second degree felonies, see Utah Code Ann. §§ 61‐1‐1, ‐21(2)(b) (LexisNexis 2011), and the related order of restitution. We affirm Williams’s convictions but remand for modification of the restitution order as set forth herein.

At ¶ 1.

Parol Evidence

We are aware of no cases, and Williams directs us to none, that have excluded parol evidence in the context of a criminal proceeding. Nonetheless, we are not prepared to adopt the State’s position that the parol evidence rule could never apply in the criminal context. That is a question for another day.

At n. 1.

The court determines that Defendant has not adequately briefed this issue and declines to address it.

At ¶¶3.

Jury Instruction Defining “Material Fact”

The instructions . . . directed the jury to consider the standard definition of a “material fact”—“something which a buyer of ordinary intelligence and prudence would think to be of importance in determining whether to buy or sell a security.” See generally S&F Supply Co. v. Hunter, 527 P.2d 217, 221 (Utah 1974) (defining a material fact for purposes of securities fraud).

Williams asserts that these instructions were erroneous because the investors involved in this case were accredited and had greater business acumen than a “buyer of ordinary intelligence and prudence,” see id. Accordingly, he asserts that the jury instructions should have defined a material fact as something that “a sophisticated person with ‘business and investment acumen’ would find important in determining whether or not to make [an] investment.” However, Williams does not explain what facts material to an investor of ordinary intelligence and prudence would not be material to a more sophisticated investor and, once again, provides no authority in support of his assertion that the definition of material fact should differ as concerns these two types of investors. Further, he fails to identify any misrepresentations on which the prosecution relied that would not have been considered material to a more sophisticated investor, as opposed to one of ordinary intelligence and prudence. Thus, Williams has not established how he could have been prejudiced by the jury instructions, even assuming that they were erroneous or that counsel was ineffective for failing to object to them. See generally Litherland, 2000 UT 76, ¶ 19 (identifying prejudice as an element of ineffective assistance); Dunn, 850 P.2d at 1208 (stating that a defendant must demonstrate harm in order to achieve reversal on plain error grounds).

At ¶¶ 4-5.

The Court declines to address Defendant’s challenge regarding his trial counsel’s failure to implement certain strategies and failure to object to the admissibility of certain evidence because the matters were not adequately briefed.

At ¶¶ 6-7.

Denial of Trial Counsel’s Motion to Withdraw

[T]he Utah Rules of Criminal Procedure explicitly require a defendant’s presence when a motion to withdraw is made unless the court orders otherwise. Utah R. Crim. P. 36(a)(2) . . . Thus, Williams’s absence alone could have justified the court in denying the motion. . . . Furthermore, because “‘[a] defendant’s right to retain counsel of his choice . . . may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice,’” see State v. Barber, 2009

UT App 91, ¶ 42, 206 P.3d 1223 (omission in original) (quoting United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990)), the denial was also justified by the fact that the motion was not made until the morning of trial and was part of a series of tactics employed by Williams to delay the court proceedings, cf. Wadsworth, 2012 UT App 175, ¶ 10 (determining that the trial court did not violate a defendant’s right to counsel of his choice by requiring substitute counsel to make an appearance before permitting the defendant’s hired counsel to withdraw so that the trial would not be delayed).

At ¶ 9.

Restitution

Finally, Williams challenges the trial court’s restitution award, which ordered him to repay sums associated with the earlier $250,000 investment in addition to sums associated with the charges in this case. The State concedes that the portion of the restitution award stemming from the $250,000 investment was improper because Williams was not “convicted of criminal activity” and did not admit any wrongdoing in connection with that investment. See Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2012); id. 77-38A-302(1), (5)(a). We therefore find it necessary to remand for the trial court to modify the June 10, 2011 Order of Restitution accordingly.

At ¶ 10.

State v. Brady, 2013 UT App 102, No. 20110901-CA (April 25, 2013)

ISSUE: Revocation of Probation

Judge Davis,

The conditions of his probation included paying restitution of $479,123.13 to his victims. On June 14, 2011, nearly one year after Brady entered his guilty plea and was put on probation, the State filed a motion for an order to show cause, arguing that Brady violated the terms of his probation by failing to pay “anything toward his restitution amounts.” The trial court granted the motion, and held a hearing on September 9, 2011

During the hearing, Brady admitted to violating his probation by failing to pay anything toward the restitution, but described his efforts to find a job and his overwhelming financial obligations in an effort to mitigate the impact of his violation. The trial court concluded that Brady’s mitigating evidence failed to “show [that he had made] at least a good faith effort to address the restitution” and noted that there were “any number of things” he could have done to satisfy this requirement. Accordingly, the trial court revoked Brady’s probation and reinstated his prison sentence. Brady appeals, arguing that the trial court abused its discretion by failing to consider his mitigating evidence, to explicitly find that his probation violation was willful, and to consider alternative means of punishment other than reinstating his prison sentence. Brady alternatively argues that the Order to Show Cause hearing did not comport with the minimum requirements of due process.

At ¶¶ 2-3.

“After the hearing the court shall make findings of fact,” id. § 77‐18‐1(12)(e)(i), and if a violation is found, the trial court “must determine by a preponderance of the evidence that the violation was willful,” State v. Maestas, 2000 UT App 22, ¶ 24, 997 P.2d 314 (citation and internal quotation marks omitted). “[T]he requirement of willfulness in the context of probation revocation proceedings for failure to pay a court-ordered payment merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation.” State v. Archuleta, 812 P.2d 80, 84 (Utah Ct. App. 1991). If the trial court determines that a probationer’s violation was not willful, the trial court is then required to “consider ‘whether adequate alternative methods of punishing the defendant are available.’” Orr, 2005 UT 92, ¶ 34 (quoting Bearden v. Georgia, 461 U.S. 660, 669 (1983)).

At ¶ 4.

The Court reviews the trial court’s findings and holds that “[t]hese comments by the trial court illustrate its implicit finding of willfulness” and rejects Brady’s argument that that an explicit finding is mandatory. Further the Court finds that “the trial court’s implicit determination that Brady’s violation was willful was not an abuse of discretion, and because of this finding, the trial court was not required to consider alternative punishments before reinstating Brady’s prison sentence.”

At ¶¶ 5-7

The Court considers Brady’s argument that the revocation hearing did not satisfy the minimum requirements of due process because he was not given an adequate opportunity to be heard and rejects it.

At ¶¶ 8-10.

Judge Thorne, Concurring,

Judge Thorne concurs and presents an argument for imposing strict liability on defendants that fail to pay restitution as a condition of probation in some circumstances.

At ¶¶ 11-18.

Bhatia v. Retirement Board, 2013 UT App 103, No. 20120096-CA (April 25, 2013)

ISSUE: Appellate review of State Retirement Board’s Determination Denying Long-term Disability; “Total Disability”

Original Proceeding

Judge McHugh,

The Court outlines the evidence presented at the hearing and determines that the Board’s conclusion that Bhatia had not submitted sufficient objective evidence of “total disability” was supported by “substantial evidence.”

At ¶¶ 6-17.

Mr. Bhatia makes two statutory arguments asserting that the Board misinterpreted the Act. First, Mr. Bhatia contends that the Act does not require him to prove “total disability” by objective medical evidence; rather, he argues that he was required to prove only the fact of “impairment” by objective medical evidence. According to Mr. Bhatia, the Board could consider his subjective reports and complaints in determining “total disability.”

At ¶ 18.

Contrary to Mr. Bhatia’s argument, the statute requires the claimant to demonstrate his complete inability to work by proving “physical objective medical impairment.” See id. § 49-21-102(11)(b). In turn, section 49-21-102(6) limits “objective medical impairment” to impairment “based on accepted objective medical tests or findings rather than subjective complaints.” Id. § 49-21-102(6).  Thus, the plain language of the statute provides LTD Program benefits only where objective medical tests or findings establish that the claimant is completely unable to engage in any gainful employment. See Hilton v. State Retirement Bd., 2005 UT App 408U, para. 2 (mem.) (“Not every impairment or disability qualifies a state employee for benefits under the Act . . . .”). Accordingly, the Board did not misinterpret the Act’s definition of “total disability” when it denied Mr. Bhatia’s claim for ongoing permanent disability benefits.

At ¶ 20.

Mr. Bhatia argues that the Act does not require him to show that he cannot work at all. Instead, he argues that the statute requires him to show only that “he cannot perform the type of work that is suitable for him.” According to Mr. Bhatia, suitability is measured by the likelihood that he will be hired and can succeed in an occupation, considering his age, education, training, experience, and other vocational factors.

At ¶ 21.

[T]he plain language of the Act belies Mr. Bhatia’s argument. It instructs the Board to determine whether an employee is unable “to engage in any gainful occupation which is reasonable, considering the eligible employee’s education, training, and experience.” See Utah Code Ann. § 49-21-102(11)(b) (emphasis added). Nothing in this statute requires the Board to speculate as to whether an employer would actually hire Mr. Bhatia or the likelihood that he would be retained in the position.

At ¶ 22.

State v. Beckstrom, 2013 UT App 104, No. 20110227-CA (April 25, 2013)

ISSUE: Scope of an investigatory stop in the context of performing field society test.

Judge Orme,

Defedant was involved in an accident which seriously injured passengers in another vehicle.  While on scene the officer desired to conduct field sobriety test on Defendant because she exhibited signs of intoxication.  Due to the cold stormy weather, and defendant’s lack of adequate winter weather, the officer asked Defendant if he could take her to the nearby police station to perform the tests, and she agreed.  He informed he that she was not under arrest, and while traveling to the station she was not restrained in any manner.  The officer testified that he could not do the test outside because the cold and wind could have significantly affected the tests.  The officer performed the tests in the police stations garage.  Defendant failed the tests and was placed under arrest. She later tested an alcohol level of .228.

Defendant filed a motion to suppress, arguing that the results of the field sobriety testing, intoxilyzer testing, and other evidence should be suppressed because her detention amounted to a de facto arrest without probable cause or because the scope of her detention exceeded the permissible limits of an investigatory detention. The trial court denied the motion, concluding that transporting Defendant to the police station to conduct the sobriety tests did not exceed the permissible scope of an investigative detention under all the circumstances.  Defendant appeals.

At ¶¶ 2-6.

We conclude that the brief further detention of Defendant to facilitate field sobriety testing was permissible under all the circumstances, including the harsh weather conditions and Defendant’s expressed consent to move to a more protected setting less than two minutes away.3 “In evaluating the scope of a stop, the court should foremost consider ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.’” Id. ¶ 28 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). In doing so, officers do not have to employ the least intrusive means available; they must merely act reasonably in choosing an alternative. See id. Reasonableness is determined by evaluating the “totality of the circumstances facing the officer.” Id. Among the circumstances that can be taken into account are an “officer’s concerns about safety and security,” id. ¶ 29, as well as physical conditions that would prevent accurate sobriety testing, see id. ¶ 31.

At ¶ 11.

Transporting a suspect can increase the intrusiveness of an investigative detention and potentially escalate it to the level of a de facto arrest. See id. ¶ 30. For instance, transporting a suspect can be “benign when the movement does not change the level of coercion involved in the stop,” but moving a suspect “from a public place to an enclosed, police-dominated location can change the level of justification required from reasonable suspicion to probable cause.” Id. In Worwood, the Utah Supreme Court determined that transporting a suspect from the side of the road to a police officer’s private residence located more than a mile away where the suspect was met by additional law enforcement officers exceeded the permissible scope of an investigatory detention because there was “no indication that [the officer] was concerned about his safety.” Id. ¶ 31. See id. ¶ 5. Additionally, the Worwood court noted that the record before it was silent regarding physical factors that could have impacted sobriety testing such as the grade and pitch of the dirt road, weather conditions, or time of day. See id. ¶ 31. Worwood held that if just one of those factors had been present, “a more expansive detention may have been justified under reasonable suspicion.” Id.

At ¶ 13.

The case at hand meets the requirements of Worwood. Severe weather was the primary impetus for the officer’s decision to relocate the testing venue. Concerns about harsh weather, Defendant’s inadequate clothing for the conditions, and the infeasibility of using the convenience store as a testing site all reasonably informed the officer’s decision to transport Defendant—with her permission and with the assurance that she was not under arrest—for less than 90 seconds to a better testing location. And any concern about intrusiveness and coercion is minimal in this case, given that Defendant consented both to being transported and to having the testing completed at the police station. While the new location could be characterized as an “enclosed, police‐dominated location,” there is no evidence that the level of coercion or intrusiveness increased once Defendant arrived at the parking garage. . . . We conclude that under the totality of the circumstances, the officer “diligently pursued a means of investigation that was likely to confirm or dispel” his suspicion quickly, Worwood, 2007 UT 47, ¶ 28 (citation and internal quotation marks omitted), and that Defendant’s brief additional detention, with her permission, did not exceed the permissible scope of an investigative detention.

At ¶ 14.

Beal v. Beal, 2013 UT App 105, No. 20110903-CA (April 25, 2013)

ISSUE: Alimony

Judge Orme,

After a series of three review hearings in 2010, the district court determined that Nanette Beal was not entitled to alimony from her ex-husband, Patrick Beal, under the terms of their 2007 divorce decree. Nanette appeals that determination, and we affirm.

At ¶ 1. 

The Court reviews the proceedings at the trial court level.  Specifically, the temporary award of alimony that lasted for two years; the trial court’s repeated orders requiring Nanette to produce an accounting of a trust to which she was a beneficiary when the time for reevaluation arrived;  Nanette’s repeated failure to provide an adequate accounting; and the trial court’s determination that based on her failure he could not adequate determine her financial income, and she was not entitled to alimony.

At ¶¶ 2-8.

Nanette asserts two errors: (1) the initial award of alimony was not “temporary” and couldonly be changed if Patrick proved a change in circumstances; (2) the court erred in requiring her to produce all of the trust documents and in factoring the documents she did provide into its alimony determination

At ¶¶ 9-10.

The Court reviews the original divorce decree and agrees with the trial court that the initial alimony award was temporary.

At ¶¶ 11-13.

In making its determination, the district court was required to consider “the recipient’s earning capacity or ability to produce income.” Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2012). Without question, a trust of which Nanette is a beneficiary and that was created “for [her] personal protection and welfare” is both an asset and a potential source of income.

At ¶ 14.

Nanette was in a position to timely produce all of the requested trust documentation to Patrick and to the court via a demand for copies from her father, the trustee. Rather thancomplying with multiple production requests and court orders, however, Nanette chose not to produce any documents for well over a year without any explanation. Even after she finally produced a copy of the original trust instrument, Nanette did not provide an accounting of the trust’s activities, generating more concerns and questions from the district court. The court was ultimately saddled with numerous abnormalities and discrepancies, including the ever-increasing debt allegedly owed to Nanette’s father and the fact that she had apparently become entitled to the trust proceeds. With the limited information before it, the court simply had no way to accurately calculate Nanette’s income stream.

At ¶ 15.

[W]e cannot conclude that the district court abused its discretion in determining that Nanette had not demonstrated that she was entitled to an award of permanent alimony.

At ¶ 16.

State v. Jones, 2013 UT App 106, No. 20110273-CA (April 25, 2013)

ISSUE: Rule 22(e) Motions to vacate an “illegal sentence”

Judge Orme,

While rule 22(e) of the Utah Rules of Criminal Procedure permits this court to correct an illegal sentence at any time, Utah courts have carefully circumscribed the application of this rule in order to prevent abuse. See State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. Defendants cannot use rule 22(e) as “a veiled attempt to challenge the underlying conviction by challenging the sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. Instead, rule 22(e) applies only when a sentence is “patently” or “manifestly” illegal. Id. “A ‘patently’ or ‘manifestly’ illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction or (2) where the sentence is beyond the authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15. The Utah Supreme Court has determined that a sentence is also illegal if it is “ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.” State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (citation and internal quotation marks omitted).

At ¶ 3.

Defendant first argues that his sentence is illegal because “neither the plea colloquy nor the plea affidavit established or identified the criminal offense and severity of conduct that constituted a crime.” Essentially, Defendant argues that the documents and procedure leading up to his guilty plea were insufficient to identify a specific violation of law or justify a penalty

greater than a class A misdemeanor. Therefore, he concludes, the sentence was illegal because it was based upon a plea in which the “underlying ‘conduct that constitutes a criminal offense’ and the level of severity were not established,” in violation of case law and rule 11 of the Utah Rules of Criminal Procedure.

This is exactly the type of argument that Utah courts have determined is not permissible under rule 22(e). See Candedo, 2010 UT 32, ¶ 9. In support of his claim of an illegal sentence, Defendant attacks the plea affidavit, the plea colloquy, and the district court’s adherence to rule 11 prior to sentencing. These complaints regarding the district court’s conduct during the plea process do not establish that the sentence was “manifestly” or “patently” illegal, i.e., that the sentencing court was without jurisdiction or exceeded the permitted statutory range in imposing sentence. See Thorkelson, 2004 UT App 9, ¶ 15. Nor does Defendant demonstrate that the sentence imposed is ambiguous, contradictory, incomplete, uncertain, or unauthorized by the judgment. See Yazzie, 2009 UT 14, ¶ 13. Rather, his complaints focus exclusively on the validity of his plea and resulting conviction.

At ¶¶ 4-5

Defendant next argues that his sentence was illegal because it exceeded the maximum penalty permitted by statute. Defendant pled guilty to obstruction of justice, a second degree felony given the underlying conduct. See Utah Code Ann. § 76-8-306(1) (LexisNexis 2008). However, the amended information, which was the focus of the plea colloquy, was reviewed by Defendant, and was incorporated into the plea agreement, clearly stated that the offense was subject to an in-concert enhancement under section 76-3-203.1, elevating Defendant’s crime to a first degree felony. See id. § 76-3-203.1(3). Defendant was then sentenced to five years to life—a sentence permissible under Utah law for a first degree felony conviction. See id. § 76-3-203(1) (LexisNexis 2012). Defendant pled guilty to an offense subject to enhancement, signed a plea agreement clearly identifying his crime as a first degree felony, and received a sentence appropriate for a first degree felony conviction. We therefore see no illegality in Defendant’s sentence.

At ¶ 7.

State v. Washington, 2013 UT App 107, No. 20130070-CA (April 25, 2013)

ISSUE: Post-Conviction Remedies Act

Per Curiam,

Darrell Eugene Washington appeals the trial court’s order denying his motions to compel discovery, which were filed in his criminal case. This appeal is before the court on its own motion for summary disposition based on the lack of a substantial question for review. We affirm.

At ¶ 1.

The trial court determined that it lacked jurisdiction over Washington’s requests because he had filed the motions seeking civil relief in his criminal case. Generally, once a trial court in a criminal proceeding “imposes a valid sentence, it loses subject matter jurisdiction over the case.” State v. Montoya, 825 P.2d 676, 670 (Utah 1991). We see no error in the trial court’s determination, particularly given that the relief Washington appears to be seeking is within the scope of the PCRA.

At ¶ 3.

In re R.T. and B.T., 2013 UT App 108, No. 20120877-CA (April 25, 2013)

ISSUE: Termination of Parental Rights

Per Curiam,

R.T. (Father) appeals the juvenile court’s termination of his parental rights in his children R.T. and B.T. We affirm.

At ¶ 1.

[T]his court “will not disturb the juvenile court’s findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.” In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

At ¶ 2.

The Court reviews the evidence in support of the Juvenile Court’s findings and finds it adequate to support its findings.

At ¶¶ 3-4.

The court refuses to address an evidentiary challenge because was not properly preserved.

At ¶ 5.

To warrant termination of parental rights, a parent must be found to be below a minimum level of fitness and the termination must be in the children’s best interests. In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118. Although these two separate findings must be made, “evidence of unfitness may be probative of both factors of the termination analysis.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062. There was sufficient evidence in the record to support that termination was in the children’s best interests.

At ¶ 7.

April 18, 2013, Utah Court of Appeals Case Summaries

April 18, 2013

Utah Court of Appeals Cases

State v. Hooker, 2013 UT App 91, No. 20110290-CA (April 18, 2013)

ISSUE: Mootness of an Appeal

Judge Davis,

“An appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.” Richards v. Baum, 914 P.2d 719, 720 (Utah 1996) (citation and internal quotation marks omitted). In this case, Hooker has already served the ninety-day sentence, he has been released from jail, and his case has been closed. Thus, reinstating his probation at this point would have “no legal effect.” . . .

A moot appeal “must be dismissed . . . unless it can be shown to fit within a recognized exception to the mootness principle.” Duran v. Morris, 635 P.2d 43, 45–46 (Utah 1981) (discussing the collateral consequences exception and the public interest exception to mootness). Hooker has not alleged, much less demonstrated, that any such exception is applicable here. Accordingly, we dismiss his appeal.

At ¶¶ 2-3.

State v. Ginter, 2013 UT App 92, No. 20110332-CA (April 18, 2013)

ISSUE: The Allen Jury Instruction for Deadlocked Juries

Judge Davis,

Allen instructions originated in Allen v. United States, 164 U.S. 492 (1896). In that case, the United States Supreme Court approved the use of supplemental jury instructions to help a deadlocked jury reach a unanimous verdict. Id. at 501–02. This type of jury instruction is also referred to as a “dynamite” instruction, “verdict urging” instruction, see State v. Lactod, 761 P.2d 23, 29 & n.2 (Utah Ct. App. 1988), or “hammer” instruction, see Stallings v. Delo, 117 F.3d 378, 380 (8th Cir. 1997). When the text of the instruction given varies from that given in Allen, the instruction is referred to as a “‘modified’ Allen instruction.” United States v. McElhiney, 275 F.3d 928, 936 (10th Cir. 2001).

At n 2.

“[T]he non-coercive use of Allen charges” is permitted in Utah because “such charges [are] a reasonable and proper exercise of the court’s power to guide the jury to a fair and impartial verdict.” State v. Lactod, 761 P.2d 23, 30 (Utah Ct. App. 1988). An Allen instruction will be deemed coercive if (1) “the language of the supplemental charge can properly be said to be coercive [per se],”5 or (2) “it is coercive under the specific circumstances of the case.” State v. Harry, 2008 UT App 224, ¶ 7, 189 P.3d 98 (alteration in original) (citations and internal quotation marks omitted). Under the second part of the test, we may consider factors such as “any colloquy between the judge and the jury fore[person], circumstances surrounding the giving of the instruction, and consideration of the American Bar Association Standards on Criminal Justice Relating to Trial by Jury.” Lactod, 761 P.2d at 31 (citation and internal quotation marks omitted). Ultimately, “‘the correctness of the charge must be determined by the consideration of the facts of each case and the exact words used by the trial court.’” United States v. McElhiney, 275 F.3d 928, 940 (10th Cir. 2001) (quoting Powell v. United States, 297 F.2d 318, 322 (5th Cir. 1961)).

At ¶ 6.

The fact that the jury knew the trial court had been informed “that a single juror was not in agreement with the majority” made “the focus of the modified Allen charge on that single juror . . . particularly acute, creating the possibility that the holdout juror might have the mistaken impression that she was being directly and individually instructed by the trial judge to defer to the conclusions of the majority.” [State v. Harry, 2008 UT App 224, ¶ 32] . . . In other words, once the jury made the trial judge aware that they were split seven to one, “the use of an instruction asking only that dissenting juror to reconsider her view became unacceptably coercive.” Id. Although the trial court intended to counterbalance the “statements urging acquiescence” by including language in the instruction such as, “‘no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence,’” this cautionary language was insufficient to outweigh the coercive effect of “the knowledge [that] one juror stood alone against the others.” Id. ¶ 31.

At ¶ 8

Although “the addition of a comment on expense does not ‘necessarily’ make a charge more coercive[,] . . . it [nonetheless] can.” See United States v. McElhiney, 275 F.3d 928, 945 (10th Cir. 2001) (citing United States v. Mason, 658 F.2d 1263, 1267 (9th Cir. 1981)) . . . [W]e . . . consider this language to contribute to the creation of an atmosphere of coercion.

At ¶ 12.

The State, on the other hand, argues that the physical circumstances surrounding the giving of Instruction 46 were not coercive. We disagree. Having the bailiff deliver dinner order forms to the jury in response to the jury’s question of how much longer they would be required to deliberate implied, at the very least, that the jury was not going to be dismissed any time soon and left open the question of whether the jury would be held overnight. That the trial court’s actual intent was expressed outside of the jury’s presence does not mean that the gesture did not effectively send the court’s message that it was “not intending to let them go.” The State also describes as noncoercive the fact that the jury deliberated for what the court considered a normal amount of time (four hours) before communicating their impasse and the fact that Instruction 46 was not given on a weekend or late at night. Additionally, the State contends that when the jury instructions are read as a whole, Instruction 22, directing the jurors to consider each other’s opinions, be respectful, and keep an open mind, counterbalances any coercive effect that Instruction 46 may have had. Last, the State argues that the jury’s submission of a question to the court after receiving Instruction 46 “shows that the jury in this case continued deliberating.” While these latter three arguments tend to weigh in favor of the State, “we cannot say that, given all of the factors [discussed], we do not have substantial doubts as to the integrity of the deliberation process.” See McElhiney, 275 F.3d at 948.

At ¶ 15.

Ginter’s due process rights were violated by the coerciveness of this instruction. The trial court “may not coerce the jury into returning a verdict because this amounts to a denial of a fair and impartial jury trial and is, therefore, a denial of due process.” Lactod, 761 P.2d at 31 (citing Mills v. Tinsley, 314 F.2d 311, 313 (10th Cir. 1963)).

At ¶ 16.

State v. Wyman, 2013 UT App 93, No. 20120293‐CA (April 18, 2013)

ISSUE: Ineffective Assistance of Counsel for Failing to Object to a Prosecutor’s Participation in the Sentencing Hearing that Had an Alleged Conflict of Interest

Judge McHugh,

Wyman argues that he received constitutionally deficient assistance of counsel at his sentencing hearing when his defense counsel failed to object to Prosecutor’s participation at the sentencing hearing because Prosecutor and his father are alfalfa farmers and members of the community harmed by Wyman’s acts.

At ¶ 5.

In order to show that he was deprived of his right to effective assistance of counsel, Wyman must establish “(1) ‘that counsel’s performance was so deficient as to fall below an objective standard of reasonableness’ and (2) ‘that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.’” See State v. King, 2012 UT App 203, ¶ 13, 283 P.3d 980 (quoting State v. Hales, 2007 UT 14, ¶ 68, 152 P.3d 321). “Failure to satisfy either component of this test is fatal to an ineffective assistance of counsel claim.” Id. (citation and internal quotation marks omitted). Defense counsel’s performance is “presumed to be part of a sound trial strategy . . . within the wide range of reasonable professional assistance.” Id. ¶ 14 (omission in original) (citation and internal quotation marks omitted). This presumption of effective assistance of counsel “may be overcome only if there is a lack of any conceivable tactical basis for counsel’s actions.” Id. (citation and internal quotation marks omitted).

At ¶ 6.

The Court reviews the record and determined that there is no evidence that the Prosecutor had a conflict of interest, and defense counsel had no legitimate reason to object to his participation. 

At ¶¶ 8-10.

Nolin v. S&S Construction, 2013 UT App 94, No. 20110663‐CA (April 18, 2013)

ISSUE: Attorney Fees and Costs; Contract Interpretation

Judge McHugh,

BACKGROUND:

After several years of litigation [concerning a “defective construction” claim] , the parties entered into a settlement agreement under which the Homeowners dismissed their complaint in return for S&S’s $20,000 contribution to the estimated $60,000 cost of removing and replacing the Retaining Wall. Because the parties could not reach an agreement on whether the Homeowners were entitled to recover their attorney fees under the REPC, they reserved that issue for resolution by the district court. The settlement agreement provides,

The Parties agree the issue of attorney[] fees and costs against S&S shall be reserved and submitted to the [c]ourt by motion pursuant to Utah Rules of Civil Procedure [rule] 7 and other governing Utah law and that for the purposes of the motion for attorney[] fees and costs, the [Homeowners] shall be considered prevailing parties.

At ¶ 4.

In support of their Motion for Attorney Fees and Costs, Plaintiffs submitted an affidavit containing facts and an expert opinion.  The Court denied Defendant’s request for time to conduct discovery and cross-examine the expert.  The Court granted Plaintiff’s request for attorney fees based on the Real Estate Purchase Contract’s (REPC) attorney fees provision and warranties.

At ¶¶ 5-11.

ANALYSIS:

“As a general rule, attorney fees are recoverable only if authorized by contract or statute.” Anderson & Karrenberg v. Warnick, 2012 UT App 275, ¶ 9, 289 P.3d 600. “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Jones v. Riche, 2009 UT App 196, ¶ 2, 216 P.3d 357 (mem.).

At ¶ 9.

Our review of the contracts as a whole convinces us that the REPCs differentiate between the terms “Lot” and “Residence,” and use each advisedly. Section 1.1 of the REPCs indicates that “[t]he Purchase Price for the Residence . . . includes . . . the Lot.” Section 11.1 of the REPCs states, in pertinent part, “[The Homeowners] agree[] that during the period of construction [S&S] shall have the unrestricted right to access the Lot for the purpose of construction of the Residence and any necessary subdivision improvements.” Generally, a “residence” is defined as “[a] house or other fixed abode; a dwelling.” Black’s Law Dictionary 1423 (9th ed. 2009). Likewise, a “lot” is generally defined as “[a] tract of land, esp[ecially] one having specific boundaries or being used for a given purpose.” Black’s Law Dictionary 1032 (9th ed. 2009). The REPCs’ precise use of the terms “residence” and “lot” convince us that if the warranty was intended to cover structural elements of the lots, as well as of the residences, it would have said so. Accordingly, the express warranty in the REPCs does not cover the Retaining Wall. See Daines, 2008 UT 51, ¶ 30 n.5 (holding that Utah courts will not find “ambiguity based on usage of a term that is not reasonable or is the product of ‘forced or strained construction’” (quoting Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 17, 133 P.3d 428)).

At ¶ 16.

Nevertheless, the Homeowners argue that a warranty covering the Retaining Wall should be implied. In support, they cite the Utah Supreme Court’s decision in Davencourt at Pilgrims Landing Homeowners Association v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234. There, the supreme court held for the first time that “[u]nder Utah law, in every contract for the sale of a new residence, a vendor in the business of building or selling such residences makes an implied warranty to the vendee that the residence is constructed in a workmanlike manner and fit for habitation.” Id. ¶ 55 (emphases added). However, the court limited the scope of the implied warranty to situations where the plaintiff can show

(1) the purchase of a new residence from a defendant builder-vendor/developer-vendor; (2) the residence contained a latent defect; (3) the defect manifested itself after purchase; (4) the defect was caused by improper design, material, or workmanship; and (5) the defect created a question of safety or made the house unfit for human habitation.

Id. ¶ 60. As discussed, the Homeowners have not alleged that their residences contain a latent defect. Furthermore, they do not contend that their homes were rendered uninhabitable or unsafe as a result of the collapse of the Retaining Wall on the common area. Accordingly, the requirements of Davencourt cannot be met.

At ¶ 17.

In re the Estate of Juanita Marie Valcarce, 2013 UT App 95, No. 20110863-CA (April 18, 2013)

ISSUE: Due Process; Probating a Lost Will; Disqualification of a Judge 

Judge McHugh,

The court reviews the evidence presented at trial and the trial court’s findings that a 1991 Will governed a decedent’s estate.

At ¶¶ 3-7

Appellant and Merrill filed a motion for a new trial on August 3, 2011, alleging that Appellant was denied his constitutional rights of due process and confrontation because “[Appellant] was unable to hear what was said, what was asked, and any rulings made by the [c]ourt during the trial . . . because the bailiffs made him turn the volume down on the hearing device, given [to] him by the clerks.” On August 5, 2011, Appellant and Merrill also filed a motion to alter or amend judgment, claiming that the trial court “failed to consider . . . controlling case law when it entered its decision admitting the unsigned, undated, and unattested alleged copy of [Decedent’s] will into probate.”

At ¶ 8.

The trial court denied both of Appellant’s motions as raising due process challenges in an untimely manner and that the evidence was sufficient to support its findings.

At ¶ 9. 

Appellant filed a timely notice of appeal. In his docketing statement, Appellant challenges for the first time the trial judge’s impartiality. According to Appellant, he learned only after judgment that, when Thorne drafted the 1991 Will, Thorne and the trial judge were partners in the law firm of Mann, Hadfield & Thorne. As a result, Appellant seeks reversal and a new trial on the ground that the trial judge should have recused himself.

At ¶ 10

[W]hen “the original will is neither in the possession of the court nor accompanies the petition” and is “lost, destroyed, or otherwise unavailable.” See id. § 75-3-402(2).

Appellee, as proponent of the 1991 Will, has the “burden of establishing prima facie proof of due execution in all cases . . . .” See id. § 75-3-407(1).

           The proof necessary to establish due execution is discussed in section 75-3-406, which provides,

(1) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state, competent, and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.

(2) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto . . . .

Id. § 75-3-406.

At ¶¶ 14-15.

Here, Appellee argues that the 1991 Will “was self-proved in compliance with Utah Code [section] 75-2-504 allowing the [1991 Will] to be admitted to probate without the testimony of any subscribing witness.” See generally id. § 75-2-504 (LexisNexis Supp. 2012) (“A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs, whether or not that officer is also a witness to the will, and evidenced by the officer’s certificate, under official seal . . . .”). Although Appellant does not challenge the inclusion of a selfproving affidavit in the body of the 1991 Will, he claims that the submission of an unsigned copy of that affidavit cannot satisfy section 75-3-406(2). Therefore, he contends that the trial court erred by not requiring the testimony of at least one attesting witness. We need not determine if the 1991 Will was self‐proved, however, because we conclude that Thorne’s testimony regarding its execution fulfills the requirement of section 75-3-406(1) that “at least one of the attesting witnesses” testify concerning execution.  See id. § 75-3-406(1) (Michie 1993).

At ¶ 16. 

[T]here is nothing in the plain language of the UUPC that prohibits [the notary] from serving as an attesting witness for purposes of proving execution under section 75-3-406(1).

At ¶ 17. 

Utah case law has not addressed whether “attesting witness” refers only to the individuals who serve as official witnesses to the execution of a will or whether it encompasses any individuals who could personally attest to the execution of the will, including the notary who was present during its execution.

At ¶ 18. 

We agree with the approach taken by other jurisdictions that a notary, who is otherwise competent to be a witness, can testify as an “attesting witness” to prove proper execution of a will when he or she was present during execution and had an opportunity to assess the competency of the testator.

At ¶ 23.

By testifying, Thorne fulfilled the UUPC’s mandate that “the testimony of at least one of the attesting witnesses, if within the state, competent, and able to testify, is required” in contested cases of formal testacy proceedings. See id. § 75-3-406(1). Therefore, we reject Appellant’s argument that the trial court failed to comply with the statutory requirements of section 75-3-406(1).

At ¶ 24.

With respect to execution of an attested will that is not self-proved, the Utah Legislature did not displace the preponderance standard existing under pre-UUPC decisions. Accordingly, Appellee had the burden of proving that “the greater weight of the evidence” supported a finding that the 1991 Will had been properly executed.

At ¶ 27.

Under the circumstances of this case, we cannot say that the trial court abused its discretion in denying Appellant’s motion for a new trial. In its decision, the trial court provided three distinct reasons to support decision. First, the trial court determined that Appellant’s objection was untimely because “[Appellant] made the decision to not raise this issue with his counsel or the [c]ourt before, during, and immediately after the hearing. [Appellant] waited approximately two months after the decision was rendered in this matter before raising this issue.” Second, the trial court indicated that “[Appellant] was fully represented by counsel at trial” and “[Appellant’s] counsel could fully hear the proceedings and was able to fully present [Appellant’s] case and defense in this matter.” Third, the trial court determined that “[Appellant’s] attorney made the tactical decision to allow his client not to testify” and “[t]he [c]ourt will not now allow a second bite at the apple because [Appellant] and his attorney regret th[at] decision.” Because the trial court’s rationale for denying the motion for new trial reasonably supports its decision, see Crookston, 817 P.2d at 805, and because the Appellant has failed to show how his attorney’s actions or the trial outcome would have been any different if he were able to hear the proceedings or if he chose to testify, see Child, 972 P.2d at 429, the trial court did not abuse its discretion in denying Appellant’s motion for a new trial.

At ¶ 37.

Appellant acknowledges that his disqualification claim is being raised for the first time on appeal, which typically would be fatal. See State v. Tueller, 2001 UT App 317, ¶ 8, 37 P.3d 1180 (“[Appellant] acknowledges that he raises the issue of recusal for the first time on appeal. Therefore, he has not properly preserved it for review.”). Nevertheless, he argues that we should consider this issue because he was unaware of the trial judge’s alleged employment at Thorne’s law firm until after his appeal was filed.

Rule 63(b) of the Utah Rules of Civil Procedure governs the disqualification of a judge. See generally Utah R. Civ. P. 63(b). It provides that “[a] party to any action . . . may file a motion to disqualify a judge,” and that the motion must be “accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias . . . or conflict of interest.” Id. R. 63(b)(1)(A). The rule further provides that the motion must be filed “after commencement of the action, but not later than [twenty] days after . . . the date on which the moving party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based.” Id. R. 63(b)(1)(B)(iii). Appellant has filed neither a motion nor an affidavit setting forth the basis for his belief that the trial judge was a member of the same law firm at the time Thorne prepared the 1991 Will. See Campbell, Maack & Sessions v. Debry, 2001 UT App 397, ¶ 27, 38 P.3d 984 (holding that the failure to file an affidavit was fatal to the party’s disqualification claim).

At ¶¶ 40-41.

[W]hen a party discovers facts supporting the disqualification of the trial judge after judgment is entered, the proper procedure is to file a motion for relief from judgment, similar to the relief available under Utah Rule of Civil Procedure 60(b). See Utah R. Civ. P. 60(b) (providing grounds for relief from judgment);

At ¶ 43.

Ashworth v. Bullock, 2013 UT App 96, No. 20120278‐CA (April 18, 2013)

ISSUE: Statute of Frauds

Judge McHugh,

Background:  In 1976, Bates, a joint tenant owning property, and Bullock entered a written and signed agreement for Bullock to purchase the property.  Harris, the other joint tenant, did not sign the agreement and did not know about it.  Harris died seven moths later.  In October 2010 Bates died.  Ashworth, the executor of Bates’ estate seeks a judgment that the contract is void due to the statute of frauds.

At ¶¶ 2-7. 

The trial court correctly noted that “Utah courts have, over the years, consistently determined that the Statute of Frauds requires the signature of both owners for the transfer of real property held in joint tenancy.” See, e.g., Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991) . . . In this case, Harris [a joint interest holder] did not execute the Writing and therefore, no enforceable contract was formed in 1976.

At ¶ 10.

[I]f the Writing severed the joint tenancy, it was converted to a tenancy in common and Harris’s interest passed to her heirs.

At ¶ 12.

Because Bates attempted to contract to sell the entire Property but could not validly agree to convey more than his own joint interest, the Writing did not ripen into a contract before Harris’s death. See Williams, 723 P.2d at 425. As a result, it did not sever the joint tenancy and Harris’s interest in the Property passed to Bates by operation of law when she died.

At ¶ 13.

Even though Ashworth is correct that the Writing did not comport with the requirements of the statute of frauds in 1976, we agree with the trial court’s determination that it became an enforceable contract when Harris’s interest passed to Bates. In reaching this conclusion, we find instructive the Utah Supreme Court’s decision in Williams v. Singleton, 723 P.2d 421 (Utah 1986) (per curiam). There, the buyers made an offer to purchase real property held in joint tenancy by the sellers, a husband and wife. Id. at 422. By its terms, the offer expired if not accepted in one day. Id. The husband provided written authorization to the sellers’ real estate agent to accept the offer on his behalf, but the wife did not execute the authorization. Id. at 423. After the real estate agent accepted the offer, the buyers decided not to purchase the property and the sellers refused to return their $5,000 earnest money. Id. The sellers sued, and the district court ruled in favor of the buyers, despite the wife’s belated attempt to ratify the husband’s actions in writing. Id. On appeal, the Utah Supreme Court held that no enforceable contract had been formed because the husband could not accept the buyers’ offer without written authorization from the wife. Id. at 423–24; see also id. (“[A]n offer to purchase when accepted creates an interest in real estate and is within the statute of frauds.” (citations omitted)).

Of significance to the issue before us, the Williams court also held that the wife’s attempt to ratify the husband’s acceptance in writing was “ineffectual to revive the contract” because it was made after the offer had expired according to the one-day deadline. Id. at 424 (emphasis added) (citing Burg v. Betty Gay of Wash., Inc., 225 A.2d 85, 86 (Pa. 1966) (holding that ratification “must be in writing and executed prior to any effective renunciation by [the other party to the agreement]”)); see also Centennial Inv. Co. v. Nuttall, 2007 UT App 321, ¶ 12, 171 P.3d 458 (holding that a Real Estate Purchase Contract (REPC) executed by only one joint tenant never ripened into a contract and therefore a subsequent REPC by which both joint tenants agreed to convey the property to a third party did not breach the prior REPC). By implication, our supreme court’s analysis indicates that had the wife ratified within the deadline for acceptance, the statute of frauds would have been satisfied and the contract, which was initially void and  unenforceable, would have ripened into an enforceable contract.

. . . Although the contract was unenforceable when originally signed, Bates’s acquisition of full title “revived” it because Harris’s signature was no longer necessary to satisfy the statute of frauds and the Writing had not been repudiated. See Williams, 723 P.2d at 424.

At ¶ 14-16.

Brady v. Park, 2013 UT App 97, No. 20110208-CA (April 18, 2013)

ISSUE: Contract Interpretation; Relevant Evidence; Implied Covenant of Good Faith and Fair Dealing 

Judge Voros,

This is a dispute over a $675,000 promissory note. The note was amortized over thirty years, but a balloon payment was due in about ten years. Although Appellees (the Bradys) made every monthly payment for nearly ten years—albeit some late— Appellants (Park) won a judgment against them for more than $2.4 million.

On appeal, both parties contest the trial court’s reading of the note. For different reasons, both challenge the trial court’s ruling with respect to compound interest. In addition, Park challenges the trial court’s refusal to enforce the note’s 10% late fee, while the Bradys challenge the trial court’s enforcement of the 20% default interest rate. Finally, the Bradys challenge the trial court’s exclusion of evidence and dismissal of their claim for breach of the implied covenant of good faith and fair dealing. We affirm in part, reverse in part, and remand for further proceedings.

At ¶¶ 1-2

The reviews the background concerning the promissory note subject to litigation and the trial court’s rulings.

At ¶¶ 3-7

Park appeals. He contends that the trial court erred (1) in calculating compound interest on an annual rather than a monthly basis and (2) in concluding that the 10% late fee provision was an unenforceable penalty.

As appellees and cross-appellants, the Bradys argue that the trial court erred (1) in ruling that the Note calls for compound interest at all, (2) in ruling that the Note requires all accrued default interest to be paid for the Note to be brought current, (3) in ruling that the 20% default interest provision is enforceable, (4) in excluding evidence of tender, and (5) in dismissing their claim for breach of the implied covenant of good faith and fair dealing.

At ¶¶ 8-9.

Compound Interest?

“Compound interest is not favored by the law.” Watkins & Faber v. Whiteley, 592 P.2d 613, 616 (Utah 1979) (per curiam); . . . Accordingly, compound interest will be awarded only where “the parties expressly agreed to compound interest.” [Mountain States Broadcasting Co. v. Neale, 783 P.2d 551, 555 (Utah Ct. App. 1989)].

At ¶ 17

The court reviews the language and holds that “the Note falls short of an express agreement for compound interest.  The Note thus bears simple interest only. This holding moots the question of whether the compounding period is annual or monthly.

At ¶¶ 18-21.

Liquidated Damages: 10% late fee

“[L]liquidated damages clauses should be reviewed in the same manner as other contractual provisions.” [Commercial Real Estate Inv., LC v. Comcast of Utah II, Inc., 2012 UT 49, ¶38.] They “are not subject to any form of heightened judicial scrutiny,” and “courts should begin with the longstanding presumption that liquidated damages clauses are enforceable.” Id. ¶ 40. Courts should thus “invalidate liquidated damages clauses only with great reluctance and when the facts clearly demonstrate that it would be unconscionable to decree enforcement of the terms of the contract.” Id. ¶ 38 (citation and internal quotation marks omitted). The [Commercial Real Estate Inc. LC] court noted that unconscionability involves a twopronged analysis addressing substantive unconscionability and procedural unconscionability. Id. ¶ 42. Finally, the court reiterated a point at issue here, that the burden of persuasion lies with the party challenging the enforceability of the clause. Id. ¶ 41.

At ¶ 25.

[W]e vacate the trial court’s ruling on the enforceability of the 10% late fee provision and remand for a determination of (1) whether the challenged provision is unconscionable under Commercial Real Estate as applied to installment payments, (2) if not, which installment payments generated a late fee, (3) whether late fee provision applies to the balloon payment, and (4) if so, whether that application of the late fee is unconscionable.  Finally, on remand, the Bradys, as the parties challenging the provision, bear the burden of demonstrating that the provision is unconscionable.

At ¶ 27.

Currentness of Payments

The Court outlines the parties arguments concerning whether the Brady’s were current on the loan, the promissory note’s language on the issue, and the rules regarding evaluation of extrinsic evidence.

At ¶¶  25-35.

While we do not regard Park’s interpretation and the Bradys’ interpretation as equally plausible, we nevertheless agree with the Bradys that the text of the Note forecloses neither. Furthermore, extrinsic evidence introduced at trial does not dispel the ambiguity. Accordingly, as a “last resort,” we construe the provision against the drafter of the provision. Fire Ins. Exch., 2012 UT App 230, ¶ 7. It is undisputed that the default interest provision was included “at the instructions of Dr. Park.” We therefore adopt the Bradys’ interpretation of the term brought current.

At ¶ 35.

Brady’s argument concerning unenforceability of the 20% interest rate

The Court finds that Brady’s argument that the 20% default interest rate is unenforceable is unpreserved.

At ¶¶ 37-42.

The Bradys’ Purported Evidence of Tender Was Reasonably Excluded

The court reviews the excluded evidence allegedly relevant to a purported tender and determines:

[W]e are not persuaded that the Bank One Fax necessarily makes the existence of a tender more probable than it would be without the evidence. We thus conclude that the trial court did not abuse its discretion in excluding the Bank One Fax.

At ¶¶ 43-46.

Directed Verdict on Brady’s Covenant of Good faith and Fair Dealing Claim

“An implied covenant of good faith and fair dealing inheres in every contract.” Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 14, 94 P.3d 193. The covenant implies “as a term of every contract a duty to perform in the good faith manner that the parties surely would have agreed to if they had foreseen and addressed the circumstance giving rise to their dispute.” Young Living Essential Oils, LC v. Marin, 2011 UT 64, ¶ 8, 266 P.3d 814. Although the scope of the covenant is limited, it encompasses “an implied duty that contracting parties refrain from actions that will intentionally destroy or injure the other party’s right to receive the fruits of the contract.” Id. ¶¶ 9, 16 (citations and internal quotation marks omitted). Thus, the covenant “‘prevent[s] either party from impeding the other’s performance of his obligations [under the contract].’” Markham v. Bradley, 2007 UT App 379, ¶ 18, 173 P.3d 865 (second alteration in original) (quoting Zion’s Props., Inc. v. Holt, 538 P.2d 1319, 1321 (Utah 1975)).

At ¶ 49.

Here, when asked by the trial court what evidence supported their cause of action for breach of the implied covenant of good faith and fair dealing, the Bradys cited Park’s actions in 2005 and 2006, not his inaction in 2000 that they point to on appeal. We conclude that by not putting the trial court on notice of the evidence they now claim it should have considered at trial, the Bradys failed to preserve the claim for appeal.

At ¶ 52.

“Generally, whether a party to a contract has acted reasonably ‘is an objective question to be determined without considering the [party’s] subjective state of mind.’” Markham v. Bradley, 2007 UT App 379, ¶ 18, 173 P.3d 865 (quoting Billings v. Union Bankers Ins. Co., 918 P.2d 461, 465 n. 2 (Utah 1996) (considering whether an insurer acted in bad faith)).

At ¶ 56.

State v. Ring, 2013 UT App 98, No. 20120116-CA (April 18, 2013)

ISSUE: Sufficiency of Evidence on Assault and Robbery Convictions

Per Curaim,

Utah Code section 76-6-301 provides that a person commits robbery if he takes personal property from another person by force “with a purpose or intent to deprive the person permanently or temporarily of the personal property.” Utah Code Ann. § 76-6-301(1)(a) (LexisNexis 2012) (emphasis added). Accordingly, Ring’s argument that he did not intend to permanently keep the cell phone does not defeat the element of intent.

At ¶ 4.

The reviews the evidence and determines that it is sufficient to support the assault conviction.

At ¶ 6.

State v. Brown, 2013 UT App 99, No. 20130095-CA (April 18, 2013)

ISSUE: Timeliness of Motions to Withdraw a Guilty Plea

Per Curiam,

Failure to file a motion to withdraw a guilty plea within the time frame required by section 77-13-6 deprives the trial court and appellate courts of jurisdiction to review the validity of the plea. See State v. Rhinehart, 2007 UT 61, ¶¶ 12–14, 167 P.3d 1046; see also Grimmett v. State, 2007 UT 11, ¶ 8, 152 P.3d 306 (“Utah Code section 77-13-6(2)(b) establishes the filing limitations that govern a criminal defendant’s right to withdraw a guilty plea. These filing limitations are jurisdictional.”). The failure to file a timely motion to withdraw a guilty plea “extinguishes a defendant’s right to challenge the validity of the guilty plea on appeal.” Grimmett, 2007 UT 11, ¶ 8. “Any challenge to a guilty plea not made within the time period specified in [section 77-13-6(2)(b)] shall be pursued under Title 78B, Chapter 9, Post-Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure.” Utah Code Ann. § 77-6-13(2)(c).

At ¶ 3.

“[T]he misplea doctrine . . . cannot be used to circumvent juridictional [sic] requirements.” [State v. Ott, 2010 UT 1, ¶ 20].

At ¶ 4.