April 18, 2013
Utah Court of Appeals Cases
State
v. Hooker, 2013 UT App 91, No. 20110290-CA (April 18, 2013)
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)
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 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.
“[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.
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.
The
Court finds that Brady’s argument that the 20% default interest rate is
unenforceable is unpreserved.
At ¶¶
37-42.
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.
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