May 23, 2013 Utah Court of Appeals Case Summaries

May 23, 2013 

Utah Court of Appeals Cases

State v. Martinez, 2013 UT App 128, No. 20120487-CA (May 23, 2013)

ISSUE: Abuse of Discretion During Sentencing

Per Curiam,

Angelo Noe Martinez appeals his sentence after a conviction on a third degree felony charge. We affirm.

At ¶ 1.

A trial court’s sentencing decision is reviewed for abuse of discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. “This includes the decision to grant or deny probation.” Id. “A defendant is not entitled to probation, but rather the trial court is empowered to place the defendant on probation if [the court] thinks that will best serve the ends of justice and is compatible with the public interest.” Id. ¶ 23. An appellate court may find an abuse of discretion only “if it can be said that no reasonable person would take the view adopted by the trial court.” Id. ¶ 14.

Martinez argues that the trial court plainly erred in failing to place him on probation. He contends that because the trial court stated that probation was the appropriate sentence for this particular case, the trial court erred when it sentenced him to prison instead. Martinez overstates the trial court’s comments.

At ¶¶ 2-3.

The trial court noted that if the instant case had been the only felony conviction that Martinez had, the trial court would have considered probation in this case. This statement does not entitle Martinez to probation. Rather, it highlights the fact that Martinez already had two other felony convictions. Given that the current case was Martinez’s third felony conviction in less than one year, he cannot show that the trial court abused its discretion in sentencing him to a concurrent prison term rather than probation.

At ¶ 4.

Horne Family Trust v. Wardley/McLachlan, 2013 UT App 129, No. 20120263-CA

(May 23, 2013)

ISSUE: Challenging Alternative Rulings on Appeal & Attorney Fees

Judge McHugh,

The Wm. Douglas Horne Family Revocable Trust (the Trust) appeals from the district court’s order granting summary judgment in favor of Wardley/McLachlan Development, LLC, Lynn Wardley, and Scott McLachlan (collectively, the Wardley Parties). On crossappeal, the Wardley Parties challenge the district court’s denial of their request for attorney fees. We affirm, in part, and reverse and remand, in part.

At ¶ 1.

The Court reviews that facts of the case which focuses on a contractual agreement.

At ¶¶ 2-6.

“This court will not reverse a ruling of the trial court that rests on independent alternative grounds where the appellant challenges only one of those grounds.” Salt Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38; see also Republic Outdoor Adver., LC v. Utah Dep’t of Transp., 2011 UT App 198, ¶ 32, 258 P.3d 619 (declining to consider a challenge to an alternative basis for the court’s grant of summary judgment where appellant failed to adequately challenge an independent basis for the court’s ruling). Consequently, we may affirm if the Trust failed to challenge each of the grounds for the district court’s grant of summary judgment.

At ¶ 9.

The Court reviews the lower court’s finding and determines that it was based on two alternative theories: (1) Accord and Satisfaction, and (2) payment.

At ¶¶ 10-13.

[I]n its briefing to this court, the Trust challenges only the district court’s ruling on accord and satisfaction. Accordingly, we affirm the district court’s judgment on the unchallenged alternative ground of payment without reaching the merits of that decision.

At ¶ 13.

Attorney Fees

[T]he Trust contends that the Wardley Parties are not entitled to attorney fees because the district court granted summary judgment only on the basis of a purported accord and satisfaction. Because an accord and satisfaction is a separate contract from the Agreement and did not have its own attorney fee provision, the Trust contends that the Agreement’s attorney fee provision is not applicable. . . . In this case, however, we have concluded that the district court also granted summary judgment on the ground that the Wardley Parties had fully performed because the Trust accepted the $473,422.96 as final payment. The district court denied fees on the basis that the acceptance of that amount as final payment also created a new contract. On appeal, the Wardley Parties argue that the district court “improperly conflated” their defenses by suggesting that both payment and accord and satisfaction created a new contract unconnected with the Agreement.

At ¶ 16.

Where the parties are certain as to the amount owed, but are actually mistaken, the acceptance of the payment “represent[s] merely the conclusion of the parties’ original contract . . . .” See id. The Wardley Parties argued both payment and accord and satisfaction, and the district court ruled in favor of the Wardley Parties on each. Under the payment theory, the parties merely concluded their original Agreement and the attorney fees provision therein remains applicable. See id.

At ¶ 17.

The Wardley Parties prevailed in the Trust’s breach of contract action and are entitled to recover their attorney fees under the plain language of the Agreement. Because the Wardley Parties “have also prevailed on appeal, they are entitled to their reasonable attorney fees incurred in this court.” See Gilbert Dev. Corp. v. Wardley Corp., 2010 UT App 361, ¶ 58, 246 P.3d 131. We remand to the district court for a calculation of those fees.

At ¶ 18.

Peyton v. Department of Workforce Services, 2013 UT App 130, No. 20120652-CA (May 23, 2013)

ISSUE: Just Cause for Termination

Per Curiam,

DeAndra Peyton petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of benefits and finding that Peyton was discharged for just cause. We decline to disturb the Board’s decision.

At ¶ 1.

To establish just cause for a termination, the elements of culpability, knowledge, and control must be shown. See Utah Admin. Code R994-405-202. The Board determined that each of those elements had been met. Peyton contends that based upon the evidence presented, there was no just cause to terminate her.

At ¶ 3.

The Court reviews the Board’s decision that the elements of just cause were established by the employer, and determines that Board’s findings were supported by substantial evidence. Accordingly, the Court declines to disturb the Board’s ruling.

At ¶¶ 4-7.

State v. Coleman, 2013 UT App 131, No. 20120957-CA (May 23, 2013)

ISSUE: Reinstatement of Right to Appeal After Guilty Plea

Per Curiam,

By pleading guilty, a defendant is “deemed to have admitted all of the essential elements of the crime charged and thereby waives all non-jurisdictional defects, including alleged preplea constitutional violations.” State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046. Accordingly, a guilty plea operates as a waiver of the right to a direct appeal of the conviction on the crime charged. If a defendant wishes to challenge a guilty plea on direct appeal, he must first move to withdraw the plea before the sentence is announced. See Utah Code Ann. § 77-13-6(2)(b) (LexisNexis 2012). Absent a timely motion to withdraw a guilty plea, this court does not have jurisdiction to review the validity of the plea on direct appeal. See State v. Merrill, 2005 UT 34, ¶¶ 13–20, 114 P.3d 585. Coleman did not move to withdraw his guilty pleas prior to sentencing. As a result, this court would have no jurisdiction over an appeal of his convictions even if the time to file a direct appeal had been reinstated.

At ¶ 3.

Hanson v. Bank of New York Mellon, 2013 UT App 132, Case No. 20120010-CA (May 23, 2013)

ISSUE: Claim Preclusion and Privity 

Judge Roth

Plaintiff Kris Hansen appeals the district court’s decision to grant the respective motions to dismiss filed by Defendants The Bank of New York Mellon (the Bank) and Marlon L. Bates on the basis that Hansen’s claims are barred by res judicata. We affirm.

At ¶ 1

The Court reviews the facts of the case.

At ¶ 2–4

“The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Mack v. Utah State Dep’t of Commerce, 2009 UT 47, ¶ 29, 221 P.3d 194 (citation and internal quotation marks omitted). Only claim preclusion is at issue here. “[C]laim preclusion corresponds to causes of action,” id. (alteration in original) (citation and internal quotation marks omitted), and “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously,” In re D.A., 2009 UT 83, ¶ 33, 222 P.3d 1172 (citation and internal quotation marks omitted). A claim is precluded in a subsequent action if (1) “both cases . . . involve the same parties or their privies,” (2) “the claim that is alleged to be barred” was “presented in the first suit” or “could and should have been raised in the first action,” and (3) “the first suit . . . resulted in a final judgment on the merits.” Mack, 2009 UT 47, ¶ 29 (citation and internal quotation marks omitted).

At ¶ 5

Hansen does not dispute that the federal lawsuit resulted in a final judgment on the merits or that he and the Bank were both parties in the federal lawsuit. He argues, however, that Bates, who was not a party to the federal lawsuit, is not in privity with any of the parties to the federal lawsuit, so res judicata cannot bar his claims against Bates. He also argues that the claims he brings in this case against both Bates and the Bank are not barred under claim preclusion because those claims could not have been raised in the federal lawsuit.

At ¶ 6

 Privity

“‘The legal definition of a person in privity with another, is a person so identified in interest with another that he represents the same legal right.’” Press Publ’g, Ltd. v. Matol Botanical Int’l, Ltd., 2001 UT 106, ¶ 20, 37 P.3d 1121 (quoting Searle Bros. v. Searle, 588 P.2d 689, 691 (Utah 1978)). “[P]rivity depends mostly [on the parties’] relationship to the subject matter of the litigation.” Id. Thus, the issue is whether Bates, as the trustee under the trust deed, represents the same legal interest as the Bank in its capacity as the beneficiary under the trust deed in the federal suit.

At ¶ 7

In arguing whether Bates and the Bank are privies, the parties rely on the statutory definitions of a trust deed, trustee, and beneficiary. A trust deed is a “deed . . . conveying real property to a trustee in trust to secure the performance of an obligation of the trustor . . . to a beneficiary.” Utah Code Ann. § 57-1-19(3) (LexisNexis 2010). The beneficiary is “the person . . . designated in a trust deed as the person for whose benefit a trust deed is given,” while the trustee is “a person to whom title to real property is conveyed by trust deed.” Id. § 57-1-19(1), (4).

At ¶ 8

Hansen argues that a “trustee is not a simple employee, agent or assign of the beneficiary but . . . has duties to the trustor or homeowner.” (Citing Russell v. Lundberg, 2005 UT App 315, ¶ 19, 120 P.3d 541 . . . The Bank and Bates point out, however, that a trustee holds property for the benefit of the beneficiary, namely to secure the debt owed to the beneficiary, and that this is particularly true in the case of foreclosure where the trustee acts at the instance and in the interest of the beneficiary to foreclose the secured property in order “to assure the payment of the debt secured by the trust deed.” See id. (“A trustee’s primary obligation is to assure the payment of the debt secured by the trust deed.”). Foreclosure is therefore a circumstance in which the duties and interests of the trustee align with the interests of the beneficiary and not with the trustor property owner.

At ¶ 9

The court agrees with the Bank and Bates that the Bank’s legal interest as the beneficiary and Bates’s legal interest as the trustee are aligned in these lawsuits. In both the federal lawsuit and this lawsuit, Hansen has attempted to prevent foreclosure on his property by arguing that the Bank does not have a beneficial interest in the trust deed. Bates has acted in his capacity as the trustee under the trust deed to foreclose on the property for the benefit of the Bank. Accordingly, we conclude that for purposes of this case, the Bank and Bates represent the same legal interest and are therefore in privity. See, e.g., Brunson v. Bank of N.Y. Mellon, 2012 UT App 222, ¶ 4, 286 P.3d 934

At ¶ 10

Claims could have been raised in the federal suit

Hansen next argues that the claims alleged in this case could not have been brought in the federal lawsuit because the facts that establish the basis for these claims only occurred after the federal lawsuit was filed.

At ¶ 11

Hansen claims that the Bank did not have authority to execute and record the Substitution of Trustee appointing Bates as trustee, and consequently, Bates lacked authority to execute and record the Notice of Default because the beneficial interest in the trust deed was not assigned to the Bank until months later.

At ¶ 12

However, the Court notes that Hansen’s claims actually depend on the allegation that the Bank and Bates lacked the authority in May 2010, and that this fact was in existence prior to the filing of the federal claim. Therefore, the claims alleged in the present case could have been brought in the federal case.

At ¶ 13

State v. Gedi, 2013 UT App 133, No. 20111099‐CA (May 23, 2013)

ISSUE: Claim for ineffective assistance

Judge Roth,

Defendant Hussein Gedi appeals his convictions by jury for violation of a domestic violence protective order and threat of domestic violence. Gedi argues that his trial counsel rendered ineffective assistance by opening the door to testimony about Gedi’s prior domestic violence conviction. We affirm.

At ¶ 1

The Court reviews the facts of the case.

At ¶ 2–7

In order to prevail on a claim for ineffective assistance, the defendant “‘must show that counsel’s performance was deficient’” and that counsel’s “‘deficient performance prejudiced the defense.’” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish that counsel’s performance was deficient, the defendant “‘must show that counsel’s representation fell below an objective standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). And in order to do so, the defendant must “overcome the strong presumption that counsel’s performance fell ‘within the wide range of reasonable professional assistance’ and that ‘under the circumstances, the challenged action might be considered sound trial strategy.’” Id. (quoting Strickland, 466 U.S. at 689). In this regard, a reviewing court “need not come to a conclusion that counsel, in fact, had a specific strategy in mind” but instead “need only articulate some plausible strategic explanation for counsel’s behavior.” Id. at 468. To establish that counsel’s performance was prejudicial, defendant must show that “there is a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at 466 (quoting Strickland, 466 U.S. at 694). Failure to establish either prong is fatal to a claim for ineffective assistance. See id.

At ¶ 8

The Court concludes that Gedi’s trial counsel’s performance was not deficient because the chosen defense of contradicting testimony put the counsel in a very difficult place. While disclosure of a defendant’s prior conviction is generally something that a defense counsel usually will not do, under these circumstances it could be seen as part of a trial strategy to make the defendant’s testimony more credible. Given the strong presumption that counsel’s performance might be considered sound trial strategy the court concludes that Gedi’s trial counsel’s performance was not deficient, and that Gedi was not prejudiced by his counsel’s performance.

At ¶ 11

State v. McNeil, 2013 UT App 134, No. 20100695-CA (May 23, 2013)

ISSUE: The Invited Error Doctrine; Hearsay, Prejudice Element of Plain Error and Ineffective Assistance of Counsel Arguments

Judge Voros,

Roland McNeil appeals his conviction for aggravated assault. McNeil contends that the trial court committed reversible error by improperly admitting three pieces of evidence: paraphrased portions of telephone records, a statement made by the victim’s daughter, and testimony regarding an unavailable witness’s prior inconsistent statements. We affirm.

At ¶ 1.

Telephone Records

A detective’s preliminary hearing testimony was . . . read into the trial record. At McNeil’s preliminary hearing, this detective had testified without objection that, according to telephone records summarized in his police report, McNeil and Quentin had called each other several times immediately before and immediately after the crime. The telephone records and police report were not introduced into evidence at the preliminary hearing. Because the detective died before trial, the trial court allowed his preliminary hearing testimony to be read into the record at McNeil’s trial. Defense counsel initially objected on hearsay grounds; the parties differ as to whether that objection was withdrawn.

At ¶ 9.

[McNeil] contends that admission of the detective’s preliminary hearing testimony about the telephone records violated the hearsay rule, the Confrontation Clause of the United States Constitution, and the best evidence rule.

At ¶ 12.

            Hearsay Objection

The Court finds the Hearsay Issue was not Preserved for Appeal Because of the Invited Error Doctrine

The invited error doctrine ensures that “a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” State v. Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (citations and internal quotation marks omitted). Counsel’s stipulation that no error has been committed “represents a classic example of invited error.” State v. Moa, 2012 UT 28, ¶ 31, 282 P.3d 985. This is so even when the party stipulates in a later hearing and not in the hearing where the alleged error occurs. Id. ¶ 32; see also Braun v. Nevada Chems., Inc., 2010 UT App 188, ¶ 15, 236 P.3d 176. The doctrine also extends to counsel’s failure to object in response to a specific question from the court. See State v. Geukgeuzian, 2004 UT 16, ¶ 10, 86 P.3d 742.

At ¶ 19.

A claim is not preserved for appeal if a party initially objects but later, while “the wheel’s still in spin,”3 abandons the objection and stipulates to the court’s intended action. See Braun, 2010 UT App 188, ¶ 13 (holding that, by retracting his stated concern upon recognition that “the tide is rolling against me on this issue,” counsel invited any error). We conclude that to present an issue “to the trial court in such a way that the trial court has an opportunity to rule on that issue,” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted), a party must communicate to the court that he or she believes—not merely believed—that the court is heading down the wrong track. Here, McNeil opened the discussion by asserting that the detective’s preliminary hearing testimony was hearsay but, by the end of the discussion, led the court to believe that he was “stipulating to the fact that it’s not hearsay.” Thus, any error was invited.

At ¶ 23.

The Court declines to review the hearsay objection fro plain error because “invited error precludes appellate review of an issue.”

At ¶ 24.

While invited error precludes a plain error claim, it does not preclude a claim for ineffective assistance of counsel. State v. Sellers, 2011 UT App 38, ¶ 13, 248 P.3d 70 (citing State v. Geukgeuzian, 2004 UT 16, ¶¶ 1, 13, 86 P.3d 742).

At ¶ 25.

The Court reviews MCNeil’s ineffective assistance of counsel claim for his counsel’s failure to raise a hearsay objection to the telephone records because “McNeil has not established that counsel’s hearsay objection would have prevented the jury from learning that Quentin was in telephone contact with McNeil immediately before and immediately after the crime. He has not, in a word, shown prejudice. We deny his ineffective assistance of counsel claim on this basis.”

At ¶ 32.

Confrontation Clause

The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” U.S. Const. amend. VI. Accordingly, testimonial hearsay is admissible in a criminal case only when the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). “To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (alterations in original) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).

Here, McNeil complains that he “was never given an opportunity to cross-examine the phone company’s records custodian to determine if [the detective’s] summary of the records was accurate, whether they were kept in the regular course of business, or whether they were prepared for investigation or prosecution of Mr. McNeil.” In sum, he argues, “[W]hen the trial court overruled defense counsel’s objection that the admission of the hearsay phone records violated Mr. McNeil’s rights under the Confrontation Clause, the ruling was not based on adequate evidence because there was no foundation to suggest that the phone records were not testimonial.” The State responds that, as with his hearsay claim, McNeil invited any Confrontation Clause error.

At ¶¶ 34-35.

We conclude that any error was invited. First, as explained above, the trial court did not “overrule” defense counsel’s objection; it discussed the objection, after which defense counsel agreed that the court’s view of the matter was correct. Second, we do not agree that defense counsel “was never given an opportunity to cross-examine the phone company’s records custodian” to determine whether the records fit within the business records exception. Defense counsel never sought this opportunity at trial. Rather, he focused on his ability to cross-examine the detective: “We don’t have the opportunity of asking [the detective] if he could verify the conversations actually took place or if they were simply playing phone tag the entire time or if the phone was left on . . . .” When asked by the court if he did not have this opportunity at the preliminary hearing, defense counsel acknowledged, “Yes sir, we did.

At ¶ 36.

In sum, McNeil bundled his Crawford objection with his hearsay objection, agreed that the detective’s preliminary hearing testimony was “not hearsay,” and acquiesced in the trial court’s characterization of his position as a stipulation that the detective’s preliminary hearing testimony was not hearsay. As a result, any Confrontation Clause error was invited. See State v. Bullock, 791 P.2d 155, 158 (Utah 1989)

At ¶ 38.

            Best Evidence Rule

McNeil further argues that by allowing the prosecution to read the detective’s preliminary hearing testimony into evidence at trial, the trial court violated the best evidence rule. McNeil asserts that “if the State wants to use the contents of phone records as evidence against a defendant, the State needs to use the records themselves.” Rule 1002 of the Utah Rules of Evidence provides that “[a]n original writing, recording, or photograph is required in order to prove its content, except as otherwise provided in these rules or by other rules adopted by the [Utah Supreme Court] or by statute.” Utah R. Evid. 1002; see also id. R.1003 to R.1007 (exceptions). McNeil asserts that we may review for preserved error, plain error, and ineffective assistance of counsel.

At ¶ 39.

The Court concludes that McNeil did not preserve his Best Evidence Rule Objection for appeal

At ¶ 40.

The Court holds that even if they did review under the plain error or ineffective assistance of counsel analysis, McNeil could not show the error caused prejudice.

At ¶¶ 41-42.

Daughter’s Hearsay Statement

At trial the victim testified that after

[he] was taken to a hospital and visited by detectives and family members. He had not recognized Quentin as McNeil’s son and had no idea who his assailant was. [The victim] asked his daughter, whom he thought was “pure as snow,” about the [attacker’s] drug allegations. She replied, “Dad, if you don’t know me by now, you never will.”

At ¶ 5.

McNeil contends that [the victim’s] daughter’s statement, “[I]f you don’t know me by now, you never will,” was admitted in violation of the hearsay rule.

At ¶ 14.

Because the relevance of the daughter’s statement depended on its truth, and the prosecutor in fact used the statement for its truth, we agree with McNeil that the statement was hearsay. As the State does not contend that any hearsay exception applies, admission of the statement was error.

At ¶ 49.

The State’s third counter-argument is that McNeil has not shown harm. It maintains that the daughter’s statement “was ambiguous in that she did not directly deny being involved in drugs” and that, because the “ambiguous response was just as consistent with Defendant’s trial theory as it was the State’s, Defendant fails to show any unfair prejudice.” McNeil asserts that the statement was prejudicial because it “was inconsistent with a defense theory of the case.” On this point, we agree with the State.

At ¶ 50.

Here, the hearsay statement was not central to the State’s case. The daughter’s out-of-court statement was, at most, weak evidence of guilt because it was ambiguous. When a daughter is asked point blank by her father if she is involved with drugs, the response, “[I]f you don’t know me by now, you never will,” could be read as an implied denial coupled with a gentle daughterly reproof for the father’s having asked the question. But it could also be read as an evasion in a circumstance calling for a categorical denial and thus by implication almost an admission. As noted above, the prosecutor adopted the former reading in closing. But defense counsel adopted the latter. He stated flatly that there was “no evidence” that the daughter and her husband did not do drugs; noted that neither testified, “No, we don’t do drugs”; and observed that Allen’s daughter and her husband were conspicuously absent from trial. Thus, while the testimony did weigh against McNeil at trial, its weight was slight.

At ¶ 53.

The Court reviews some of the evidence against McNeil at trial and determines that

in reviewing the factors relevant to a determination of prejudice, we conclude that, while admitting the hearsay statement was error, McNeil has not shown a “reasonable likelihood that the error affected the outcome in the trial court.” See State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991) (citation and internal quotation marks omitted).

At ¶ 57.

Prosecutor’s Statement

At trial, Crandall, a prosecutor in the attacker’s case, testified that she had not written the promised letter for Quentin, the attacker, because he had not told the whole truth at McNeil’s preliminary hearing.

At ¶ 8.

McNeil contends that Crandall’s statement that Quentin had not testified truthfully at McNeil’s preliminary hearing was admitted in violation of the hearsay rule, the Confrontation Clause, and rule 608(a) of the Utah Rules of Evidence. He concedes that this claim of error was not preserved and thus argues plain error and ineffective assistance of counsel.

At ¶ 15.

[P]lain error claims and ineffective assistance of counsel claims share a “common standard” of prejudice. State v. Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92; State v. Verde, 770 P.2d 116, 124 n.15 (Utah 1989). Under either theory, a defendant must demonstrate that, absent the error or deficient performance, “there is a reasonable probability of a more favorable result.”

At ¶ 63.

The jury knew that Quentin had originally implicated McNeil in his statement to investigators, then recanted that statement in the preliminary hearing. These are the crucial facts. That a prosecutor did not write a letter to the Board of Pardons commending Quentin for having told the truth when he recanted his earlier statement to police adds little. This is not a case where the prosecutor’s statements might “convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant.” United States v. Young, 470 U.S. 1, 18 (1985) (referring to the prosecutor’s vouching for a witness in closing argument). Here, the jury was well aware of the evidence—including Quentin’s own statement to investigators and the telephone records showing his communications with McNeil before and after the attack—supporting the prosecutor’s decision.

At ¶ 66.

[A]ssuming without deciding that the trial court obviously erred in not stepping in to exclude the testimony and that any objectively reasonable counsel would have successfully objected to the testimony, McNeil has nevertheless failed to show a “reasonable likelihood that the error affected the outcome in the trial court.”

At ¶ 69.

Cumulative Error?

“Under the cumulative error doctrine, we will reverse only if ‘the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.’” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in original) (quoting Whitehead v. American Motors Sales Corp., 801 P.2d 920, 928 (Utah 1990)). “[W]e consider all the identified errors, as well as any errors we assume may have occurred.” Id.

At ¶ 70.

Here, we have discussed numerous claims of error presented by McNeil. We have determined that the admission of one hearsay statement was error, and we have assumed without deciding that admission of another was error. For the same reasons that neither statement individually was likely to have affected the outcome of the trial, we conclude that the admission of the statements in combination was similarly not likely to have affected the outcome of the trial.

At ¶ 71.

Cross v. Olsen, 2013 UT App 135, No. 20120107-CA (May 23, 2013)

ISSUE: First Breach Rule; Materiality of Breach

Judge Voros,

Plaintiffs Lake Forest Properties LLC and Colco Development, Inc. (Lake Forest) appeal the trial court’s grant of summary judgment in favor of Defendants David W. Olsen and Hearthstone Development, Inc. (collectively, Defendants). We reverse and remand for further proceedings.

At ¶ 1.

The Court reviews a complex procedural and factual background of this case.  First, Lake Forest sued Olsen, Jerrold L. Cross, and Painted Horse Holdings, LC for breach of a water purchase agreement (the Lake Forest Action); second, Cross and Defendants entered a settlement agreement regarding other claims in which Defendants promised to indemnify Cross for the Lake Forest Action; third, Lake Forest obtained a judgment against Cross in the Lake Forest Action; fourth, Cross filed this suit against the Defendants to enforce the settlement agreement and assigned his rights to Lake Forest in satisfaction of the judgment against him in the Lake Forest Action; fifth, the trial court granted Defendants summary judgment because Cross violated the confidentiality provision of the agreement by failing to file this action under seal and making certain oral statements to Lake Forest. The trial court concluded that these breaches were material and excused any performance under the Indemnity Provision by Defendants.

At ¶¶ 2-11.

Breach of the Confidentiality Provision

Lake Forest first challenges the trial court’s ruling that it breached the Settlement Agreement by violating the Confidentiality Provision.

At ¶ 13.

The Court reviews the oral disclosures Cross made to Lake Forest and determines that two of the alleged disclosures did are not supported by the evidence.  The only purported disclosure that occurred was the disclosure of the existence of a confidentiality provision.

At ¶¶ 15-19.

The Court reviews the filing of settlement agreement with the court, and concludes that whether the filing constituted a breach is a legitimate question but Lake Forest has not adequately briefed the issue.

At ¶¶ 20-23

We therefore conclude that, to the extent the summary judgment rests on the filing of the complaint not under seal, Lake Forest has shown no error in it. In sum, we affirm the trial court’s ruling that Cross breached the Confidentiality Provision of the Settlement Agreement insofar as that ruling rests on Cross’s disclosure of the Confidentiality Provision and Cross’s filing of the complaint not under seal.

At ¶ 23.

First Breach Rule

Next, Lake Forest challenges the trial court’s ruling that, under the first breach rule, Cross’s breach of the Confidentiality Provision “excus[ed D]efendants from future performance and entitl[ed] defendants to summary judgment as a matter of law.” Lake Forest challenges the trial court’s reliance on the first breach rule on two grounds: (1) that any breach by Cross was at most a technical breach, not a substantial and material breach as required by the rule, and (2) that any breach by Cross was not “first,” but instead was preceded by Defendants’ breach of the Notification Provision.

At ¶ 24.

“[U]nder the first breach rule a party first guilty of a substantial or material breach of contract cannot complain if the other party thereafter refuses to perform. He can neither insist on performance by the other party nor maintain an action against the other party for a subsequent failure to perform.” CCD, LC v. Millsap, 2005 UT 42, ¶ 29, 116 P.3d 366 (citation and internal quotation marks omitted).

Only a material breach will excuse further performance by the non-breaching party. McArthur v. State Farm Mut. Auto. Ins. Co., 2012 UT 22, ¶ 28 n.7, 274 P.3d 981. Therefore, “[n]ot every minor failure justifies nonperformance and rescission of the contract.” Saunders v. Sharp, 840 P.2d 796, 806 (Utah Ct. App. 1992). “‘It must be something so substantial that it could be reasonably deemed to vindicate the other’s refusal to perform.’” Id. (quoting Zion’s Props.,

Inc. v. Holt, 538 P.2d 1319, 1321 (Utah 1975))

“What constitutes so serious a breach as to justify rescission is not easily reduced to precise statement . . . .” Polyglycoat Corp. v. Holcomb, 591 P.2d 449, 451 (Utah 1979). But Utah courts have given guidance on what may constitute a material breach. “[C]ertainly a failure of performance which defeats the very object of the contract or [is] of such prime importance that the contract would not have been made if default in that particular had been contemplated is a material failure.” Id. (citation and internal quotation marks omitted). Furthermore, “[a] breach which goes to only a part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract . . . . A rescission is not warranted by a mere breach of contract not so substantial and fundamental as to defeat the object of the parties in making the agreement.” Coalville City v. Lundgren, 930 P.2d 1206, 1210 (Utah Ct. App. 1997) (citation and internal quotation marks omitted).

The relevant question is not whether the breach goes to the heart of the provision breached, but whether it goes to the heart of the contract itself. . . .  Therefore, whether a breach is material is a question of degree. Id. § 43:6, at 577–78. It turns on a number of factors:

“(a) the extent to which the injured party will be deprived of the benefit which he reasonably

expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.”

Cache County v. Beus, 1999 UT App 134, ¶ 37, 978 P.2d 1043 (quoting Restatement (Second) of Contracts § 241 (1981)); see also GeoNan Props., LLC

At ¶¶ 25-28.

The Court rules that “[w]hether a breach of a contract constitutes a material breach

is a question of fact . . . .” and that the trial court, in this case, should not have granted summary judgment on the issue of material breach.

At ¶¶ 29-30.

Breach of Notification Provision

The court declines to address Lake Forest’s contention that any breach by Cross was preceded by a breach by Defendants. Thus, Lake Forest argues, the defense of excuse is unavailable to Defendants 

At ¶¶ 31-33.

May 16, 2013 Utah Court of Appeals Case Summaries

May 16, 2013

Utah Court of Appeals Cases

Fu v. Rhodes, 2013 UT App 120, No. 20110081-CA (May 16, 2013)

ISSUE: Striking Answer and Entering Default Judgment as  Rule 37 Sanctions 

Judge Davis,

[Defendants] appeal from an Order and Judgment, claiming that the trial court abused its discretion by striking their Answer and entering judgment against them as a discovery sanction pursuant to rule 37 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 37(e)(2). [Alternatively], Defendants contend that even if the sanction was otherwise appropriate, the trial court erred by entering judgment because [Plaintiff]’s Complaint fails to set forth factual allegations supporting the relief requested.

Affirmed and remanded for calculation of fees on appeal.

At ¶ 1

The Court details the claims and allegations contained in the original Complaint.

At ¶ 2

The Court outlines the facts of the case.

¶ 3-7.

ISSUES AND STANDARDS OF REVIEW

Defendants argue that the rule 37 sanctions the trial court imposed in this case—striking their Answer and entering default judgment—were unduly severe and therefore constituted an abuse of the trial court’s discretion. See generally Utah R. Civ. P. 37(e)(2). “As a general rule, district courts are granted a great deal of deference in selecting discovery sanctions, and we overturn a sanction only in cases evidencing a clear abuse of discretion.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957.

Defendants also contend that even if it was otherwise appropriate for the trial court to strike their Answer, the trial court erred when it entered default judgment because the facts alleged in the Complaint do not support recovery under the stated legal theories. Defendants concede that this issue was not preserved but assert that supreme court precedent belies the necessity of preserving this type of claim for appeal. See infra ¶ 14. We generally do not consider claims raised for the first time on appeal unless they fall under a recognized exception to the preservation rule. See Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870, 880 (Utah 1996).

At ¶¶ 8-9.

ANALYSIS—Severity of Sanctions

In reviewing a challenge to rule 37 sanctions, we first “consider whether the district court was justified in ordering sanctions” and “then review the type and amount of sanctions for abuse of discretion.” PC Crane Serv., LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 32, 273 P.3d 396. . . . “Even though dismissing an action is ‘one of the most severe of the potential sanctions that can be imposed, it is clear from the language of rule 37 that it is within a trial court’s discretion to impose such a sanction.’” Allen v.Ciokewicz, 2012 UT App 162, ¶ 32, 280 P.3d 425 (quoting Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)); see also Utah R. Civ. P. 37(e)(2). Accordingly, Defendants undertake a significant

burden in attempting to show that the trial court abused its discretion in striking their Answer and entering default judgment. To meet that burden, Defendants “must show either that the sanction is based on an erroneous conclusion of law or that the sanction lacks an evidentiary basis.” SFR, Inc. v. Comtrol, Inc., 2008

UT App 31, ¶ 14, 177 P.3d 629 (citation and internal quotation marks omitted). Defendants have failed to identify any error of law, and the record supports the trial court’s decision.

The trial court expressly warned Defendants…they were at risk of having judgment entered against them…if they “fail[ed] to provide all requested discovery within ten days… .Not only did they fail to meet this deadline, but they failed to provide the requested discovery even by the extended…deadline stipulated to in the amended case management order. By the time the trial court entered judgment against Defendants…nearly sixteen months had passed since the trial court’s initial deadline and the discovery requests were still outstanding. The trial court afforded Defendants two opportunities to be heard before striking their Answer and entering default. Ultimately… the court found that [Plaintiff’s] motion for entry of judgment was “based on good cause and should be granted” due to “[D]efendants’ continued failures to comply with timely discovery, their failure to comply with the Court’s previously entered Order to Compel, and their failure to comply with the Case Management Orders.” Under these circumstances, we are not convinced that it was an abuse of the trial court’s discretion to strike the Answer and enter default judgment. See Morton, 938 P.2d at 275–76… .

At ¶¶ 10-11.

ANALYSIS—Sufficiency of the Complaint

Next, Defendants argue that even if striking their Answer was appropriate, the facts alleged in the Complaint do not support recovery under the legal theories pleaded . . . . As discussed, rule 37 provides that “the court in which the action is pending may impose appropriate sanctions for the failure to follow its orders, including . . . render judgment by default on all or part of the action.” See Utah R. Civ. P. 37(e)(2)(D) (emphasis added); see also Knouff v. United States, 74 F.R.D. 555, 557… . Nevertheless, as Defendants point out, that power is tempered by the requirement that the entry of judgment be supported by the well‐pleaded allegations of the complaint. As the Utah Supreme Court has explained,

[A d]efendant’s failure to answer and ensuing default . . . require the court to accept the factual allegations as true, but the court [should] enter judgment as requested only if it determined those facts established an actionable claim. Were the rule otherwise, a court could be obligated to enter a money judgment on a complaint as frivolous as a refusal to share recipes with a neighbor. Thus, the court must determine whether an actionable claim exists.

American Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182,

1194 (Utah 1996)…, abrogated on other grounds by Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234.

Accordingly, “[a] trial court asked to render a judgment by default must first conclude that the uncontroverted allegations of an applicant’s petition are, on their face, legally sufficient to establish a valid claim against the defaulting party.” Stevens v. Collard, 837 P.2d 593, 595 (Utah Ct. App. 1992); see also id. at 598… . Defendants contend that the same requirements must be met before judgment can be entered as a discovery sanction. See, e.g., Microsoft Corp. v. Computer Care Ctr., Inc., 2008 WL 4179653, at *6 (E.D.N.Y. Sept. 10, 2008)… . [Plaintiff] argues that we should not evaluate the sufficiency of the Complaint on appeal because Defendants did not raise this issue in the trial court. The defense of “failure to state a claim can[not] be raised for the first time on appeal.” Smith v. Vuicich, 699 P.2d 763, 765 (Utah 1985) (per curiam)… . Nevertheless, Defendants insist that when a trial court strikes a party’s pleading and enters a default judgment, the party may challenge the sufficiency of the complaint to support the judgment for the first time on appeal. Defendants’ position is not supported by our jurisprudence.

At ¶ 12-14.

Despite our precedent directly addressing the preservation rule in the context of a default judgment, Defendants point us to the supreme court’s statement in Skanchy v. Calcados Ortope SA, 952 P.2d 1071 (Utah 1998), that “[o]n appeal from a default judgment, a defendant may contest ‘the sufficiency of the complaint and its allegations to support the judgment.’” Id. at 1076… . Taken out of context, this statement appears to suggest an exception to the preservation rule.

At ¶ 16

The Court analyzes Skanchy and the case on which it relies, Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5^th Cir. 1975).

At ¶ 17.

[T]he Skanchy opinion does not refer to the preservation rule at all and does not seem to view the challenge to the sufficiency of the complaint as being raised for the first time on appeal. [Skanchy, 952 P.2d] at 1076–77. We are unwilling to take the Skanchy court’s isolated statement…as a definitive ruling carving out an exception to the preservation requirement, especially in light of our undisturbed precedent in Sixteen Thousand explicitly requiring preservation. See Sixteen Thousand, 914 P.2d at 1178–79.

At ¶ 18.

[E]ven if a defense of failure to state a claim could be raised for the first time on appeal in the context of a default judgment entered for failure to appear, it is not reasonable for such a rule to extend to an appeal of a default judgment entered pursuant to rule 37. […] [A] defendant who has a default judgment entered against him as a discovery sanction will have had every opportunity to raise a defense for failure to state a claim before the trial court. Accordingly, any rationale that might exist for permitting a defendant to bypass the trial court and raise such a challenge for the first time on appeal in the context of a default judgment entered for failure to appear does not support such a rule with respect to a default judgment entered as a discovery sanction. […] Because trial courts should generally be afforded “an opportunity to correct error and to end controversies before an appeal becomes necessary,”6 id. at 1179, we decline to take upon ourselves the burden of weighing the sufficiency of the pleadings on appeal without the benefit of the trial court’s analysis where Defendants had every opportunity to raise the issue in the trial court.

At ¶ 19

ANALYSIS—Attorney Fees on Appeal

The Court briefly discussed liability for Attorney Fees on Appeal.

.At ¶ 20.

CONCLUSION

The trial court did not abuse its discretion by striking Defendants’ Answer and entering default judgment against Defendants as a discovery sanction. Furthermore, because Defendants have failed to preserve their claim that the facts alleged in the Complaint do not support recovery under the stated legal theories, we do not address that issue on appeal. Accordingly, we affirm the trial court’s Order and Judgment. We also award Fu attorney fees and costs reasonably incurred on appeal, to be calculated by the trial court on remand.

At ¶ 21

Concurring in part, dissenting in part

Judge McHugh,

I concur with part I of the majority’s decision, but I respectfully dissent from part II regarding whether a party may challenge the sufficiency of the complaint to support a default judgment for the first time on appeal. Accordingly, I would consider whether [Plaintiff’s] Complaint states a claim upon which relief can be granted against each of the Defendants. Upon review of the Complaint, I would conclude that it does so as to Rhodes but fails to state a claim against Naso and Evans. As a result, I would affirm the default judgment against Rhodes but reverse as to Naso and Evans.

At ¶ 22-56.

Johnson v. Weber County, 2013 UT App 121, No.20120368-CA (May 16, 2013)

ISSUE: Definition of a “School” of Zoning Purposes

Judge Davis,

Susan D. Johnson, Chris L. Johnson, Christina Granath, and Lonnie Cassidy Verhaal (the Residents) appeal the grant of summary judgment in favor of Weber County (the County). We affirm.

At ¶ 1

This is an appeal from the district court’s affirmance of the Weber County Board of Adjustment’s (the BOA) decision approving that Planning Commission’s determination that a proposed “specialty school” was a “school” under the Weber County Zoning Ordinance (the Ordinance) and is therefore a permitted use within the proposed AV-3 Zone.

At ¶ 2–5

The Residents contend that the BOA’s decision was arbitrary, capricious, illegal, and not supported by substantial evidence, thereby rendering summary judgment in favor of Green Valley inappropriate. “A final decision of a land use authority or an  appeal  authority  is  valid  if  the  decision  is  supported  by substantial evidence in the record and is not arbitrary, capricious, or illegal.” Utah Code Ann. §17-27a-801(3)(c) (LexisNexis 2009). “A determination of illegality requires a determination that the decision, ordinance, or regulation violates a law, statute, or ordinance in effect at the time the decision was made or the ordinance or regulation adopted.” Id. § 17-27a-801(3)(d).

At 7

The Residents contend that the BOA’s decision was illegal and arbitrary and capricious because it was made in violation of the Ordinance and was not supported by substantial evidence. Though the Residents “concede that the instruction and education” aspect of Green Valley “would, in fact, qualify as a school . . . under Weber County’s Ordinance and under the Crist [v. Bishop, 520-P.2d 196 (Utah 1974)] decision,” they argue that Green Valley nonetheless fails to qualify as a school because its “residential component . . . [is] otherwise not” permitted in the AV-3 Zone. The Residents assert that Green Valley’s main use is as a residence for troubled youth and that by calling it a school, Green Valley attempts to make “an end run around the [O]rdinance.” In other words, the Residents argue that the school is not enough of a school. We disagree.

At ¶ 8

The Ordinance defines a school as follows:

A public elementary or secondary school, charter, seminary, parochial school, or private educational institution having a curriculum similar to that ordinarily given in grades one through twelve in the public school system. The term “education institution” for the purpose of this Ordinance does not include post high school educational facilities.

Weber County, Utah, Zoning Ordinance, § 1-6, available at http://www.co.weber.ut.us/mediawiki/index.php/General_Provi sions_%26_Definitions (last visited May 13, 2013). The term “schools” was also defined in Crist, in which the supreme court was asked to construe a zoning ordinance that did not define that term. See Crist, 520 P.2d at 197. The Crist court noted “that it is not the name used that determines the character of an institution[;] . . . this is to be ascertained from what it actually consists of and its method of operation.” Id. The court interpreted “schools” to mean, “institutions for education and training[,  t]he requisites of [which] . . . are: some physical facility, teachers, a curriculum for study or

At ¶ 9

However, as stated above, because schools are a type of permitted use in the AV-3 Zone and Green Valley meets the definition of “school” provided in the Ordinance, the fact that GreenValley also includes amenities and programs not specifically identified in the Ordinance does not, under the facts and circumstances of this case, mean it no longer qualifies as a school. As observed in Crist, despite variations in teaching style, discipline, or amenities available for students, certain requisites are “present in greater or lesser degree in practically all schools; and they may vary greatly without preventing one from being properly so characterized.” Crist v. Bishop, 520 P.2d 196, 199 (Utah 1974).Thus, while the Ordinance does contain the limitation that “uses not listed are not allowed,” we do not interpret that to mean that every type of school that is actually permitted by the Ordinance must be enumerated, rather than evaluated on a case-by-case basis in accordance with the definition provided in the Ordinance. Additionally, the Residents’ assertion that boarding schools are permitted in other zones is incorrect; no part of the Ordinance specifically provides for boarding schools, though boarding houses are permitted in different zones. Likewise, the multi-unit residential facilities permitted in the AV-3 Zone are not all limited to eight residents; convalescent or rest homes are a conditional use allowed in the zone, and the Ordinance does not explicitly cap the number of people such facilities can house. In other words, it is not clear how large the Green Valley housing facility would have to be for the district court to necessarily conclude that it is not in keeping with the purpose of the AV-3 Zone.

At ¶ 14

In re M.J. and T.J., 2013 UT App 122, Case No. 20120560-CA (May 16, 2013)

ISSUE: Termination of parental rights

Judge McHugh,

J.J. (Mother) appeals the juvenile court’s order terminating her parental rights in M.J. and T.J. (collectively, the Children), claiming that there was insufficient evidence to demonstrate that termination was in the Children’s best interests. We affirm.

At ¶1

The Court reviews the facts of the case.

At ¶ 2–19

Mother first argues that the juvenile court’s decision not to place the Children with the Adoptive Parents denied her “due process regarding her residual parental rights.” However, she failed to preserve this issue for appeal.

At  ¶ 22–23

In determining whether termination of a parent’s rights is in the best interest of a child, the juvenile court must, at a minimum, consider “the physical, mental, or emotional condition and needs of the child . . . ,” as well as “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return him to his home after a reasonable length of time.”

In re D.R.A., 2011 UT App 397, ¶ 10, 266 P.3d 844 (quoting Utah Code Ann. § 78A-6-509(1) (2008) (current version at id. (LexisNexis 2012))). Although Utah Code section 78A-6-509 sets forth certain factors that the juvenile court must consider, it “is not limited to” those factors in determining whether the parental rights of a parent who is not in physical custody of a child should be terminated. See Utah Code Ann. § 78A-6-509(1). Furthermore, while “evidence of unfitness may be probative of both factors of the termination analysis,” “the best interest analysis includes consideration of the impact of termination on the child, rather than simply on evaluating whether the statutory grounds for termination have been met.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062.

At ¶ 26

The Court reviews the Juvenile Court’s findings regarding the best interest of the chld and determines that they were supported by substantial evidence.

At ¶ 28.

Mother argues that the best interests determination is erroneous because DCFS and the juvenile court failed to investigate placing the Children with their older siblings as required by Utah Code section 78A-6-312(19). See Utah Code Ann. § 78A-6-312(19) (LexisNexis 2012) (“When a court conducts a permanency hearing for a minor . . . , the court shall attempt to keep the minor’s sibling group together if keeping the sibling group together is: (a) practicable; and (b) in accordance with the best interest of the minor.”) Mother also contends that the best interests analysis is erroneous because the juvenile court failed to apply the permanency considerations of section 78A-6-312(19) when it considered the bond between the Children and the Foster Parents for purposes of the 78A-6-510 factors. See id. § 78A-6-510 (describing specific factors the juvenile court should consider during a termination proceeding where a child has been placed in a foster home). Mother claims that the two statutes must be read harmoniously and that the preferences must first be determined at permanency hearings prior to a consideration of best interests at termination.

At ¶ 29

To the extent the sibling placement issue has any relevance to these proceedings, it is limited to the weight the juvenile court should give the strength of the bond between Foster Parents and the Children. . . . We are convinced that the juvenile court did not exceed its discretion in considering the Children’s bond with Foster Parents in its best interests determination.

At ¶ 30.

We also reject Mother’s assertion that the juvenile court should not have considered the bond between the Children and the Foster Parents because sibling placement in section 78A-6-312(19) requires the Children to be placed with their older siblings. See id. § 78A‐6‐312(19). . . . Although the Utah Code does not define what constitutes a “sibling group,” the use of the term “group,” rather than just “sibling,” suggests an affiliation based on more than genetics.

Furthermore, section 78A-6-312(19) permits a placement by its plain terms that separates a “sibling group” when it is not “practicable” or it is not “in accordance with the best interest of the minor.” See Utah Code Ann. § 78A-6-312(19).

At ¶¶ 33- 34

The Court reviews that facts and determines that “the juvenile court could properly

conclude that it was in the Children’s best interests to place them with the Foster Parents rather than with the Adoptive Parents and the older children.”

At ¶ 34.

Clawson v. Labor Commission, 2013 UT App 123, Case No. 20120560-CA (May 16, 2013)

ISSUE: Permanent Disability

Judge Roth,

Petitioner Randy James Clawson petitions for review of a Utah Labor Commission Appeals Board (the Board) decision to deny his claim for permanent total disability compensation. See generally Utah Code Ann. § 34A‐2‐413(1) (LexisNexis 2011). We set aside the Board’s decision and direct the Board to reconsider Clawson’s claim.

At ¶ 1

The court reviews the facts and the procedural posture of the case.

At ¶ 2–6

Under the Workers’ Compensation Act, “[t]o establish entitlement to permanent total disability compensation, the employee shall prove by a preponderance of the evidence that (i) the employee sustained a significant impairment . . . as a result of the . . . occupational disease that gives rise to the permanent total disability entitlement; (ii) the employee has a permanent, total disability; and (iii) the . . . occupational disease is the direct cause of the employee’s permanent total disability.” Utah Code Ann. § 34A‐2‐413(1)(b) (LexisNexis 2011). “To establish that an employee has a permanent, total disability,” the act requires that the employee “prove by a preponderance of the evidence that” the employee is unable to work. Id. § 34A‐2‐413(1)(c)(i)–(iv).

At ¶ 7

The Court reviews the Board’s procedure.

At ¶ 8–12

The Court instructs the Board to reconsider the issue because it finds that Clawson’s occupational disease may constitute a significant impairment and that Clawson’s silicosis may be the direct cause of a permanent total disability that renders him unable to work.

At ¶¶ 13–24

Roper v. Shovan, 2013 UT App 124, No. 20130134-CA (May 16, 2013)

ISSUE: Civil Stalking Injunction

Per Curiam,

Appellant Jacob Michael Shovan appeals the district court’s issuance of a civil stalking injunction. Accordingly, the issues before this court are limited to a determination whether the district court erred in issuing the civil stalking injunction. . . . This case is before the court on a sua sponte motion for summary disposition.

At ¶ 1

“In order to enter a civil stalking injunction, the district court must conclude that ‘an offense of stalking has occurred’ that meets the criteria for the ‘crime of stalking as defined by [Utah Code] section 76-5-106.5(2)’—the criminal stalking statute.” Coombs v. Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (quoting Utah Code Ann. § 77-3a-101(1), (5) (2008)).

A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person or . . . to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012). “Course of conduct” includes “two or more acts directed at or toward a specific person, including . . . acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to . . . a person . . . directly” or “approaches or confronts a person.” Id. § 76-5-106.5(1)(b)(i),(ii).

At ¶ 2

The Court reviews the facts of the case.

At ¶¶ 3–4

Shovan contends that the district court in the civil stalking case incorrectly considered how Roper “felt” in ruling on the civil stalking injunction. “A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person” to fear for her safety or the safety of a third person or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2). “‘Reasonable person’ means a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(e). Roper alleged two incidents in which Shovan confronted her at the children’s school or in her neighborhood and acted in a confrontational or harassing manner toward her. Under the civil stalking statute, the district court appropriately considered Roper’s reaction to Shovan’s behavior as a reasonable person under the victim’s circumstances. The district court’s findings are not clearly erroneous and support the civil stalking injunction.

At ¶ 5

The court discusses Shovan’s claim that the district court prevented him from presenting all relevant evidence regarding the two alleged incidents of stalking. The court finds that Shovan had multiple opportunities to present all evidence to the court.

At ¶ 6–7

Shovan also claims that the district court exhibited bias or prejudice towards him. A claim of judicial bias or prejudice must be raised in a timely manner by a motion filed in the district court under rule 63 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 63(b). Shovan did not file such a motion. Accordingly, we also do not consider that claim because it is raised for the first time on appeal.

At ¶ 8

Finally, Shovan claims that Roper was generally untruthful in her testimony and therefore this court should disregard it on appeal. However, we defer to the advantaged position of the district court to make credibility determinations and will not substitute our judgment for that of the district court. Salt Lake City v. Hughes, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (“It is the province of the trier of fact to assess the credibility of witnesses, and we will not second-guess the trial court where there is a reasonable basis to support its findings.”).

At  ¶ 9

State v. Nacey, 2013 UT App 125, No. 20110622-CA (May 16, 2013, 2013)

ISSUE: Preservation of Issue for Appeal

Per Curiam,

Patrick Robert Nacey appeals his conviction of attempted rape. He argues that there was insufficient evidence to support the conviction. We affirm.

At ¶ 1

Nacey argues that he preserved his sufficiency of the evidence claim through motions for a directed verdict, which he made both at the close of the State’s case-in-chief and before the case was submitted to the jury. However, the record demonstrates that Nacey’s motions for a directed verdict only raised the issue concerning whether there was sufficient evidence to support the rape charge, i.e., whether there was evidence of penetration. Nacey’s argument on appeal is that there was insufficient evidence to support the conviction of attempted rape because the victim’s testimony was too unreliable to establish attempted rape beyond a reasonable doubt. Nacey’s motions to the district court were insufficient to preserve the issue he now raises on appeal.

At ¶ 2

The court explains that Nacey must show that the district court committed plain error when it submitted the case to the jury. However, the court found that Nacey could not provide sufficient evidence to show that the district court committed plain error when it submitted the case to the jury. Affirmed.

At ¶ 3–6

In re K.K. and K.K., 2013 UT App 126, No. 20120868-CA (May 16, 2013)

ISSUE: Appeal for Order Terminating Parental Rights

Per Curiam,

R.W.K. (Father) appeals the September 27, 2012 order terminating his parental rights. We affirm.

At ¶ 1

Father asserts that there was insufficient evidence to support the juvenile court’s determination that there were adequate grounds to terminate his parental rights under Utah Code section 78-6-507 given his recent efforts to cure the issues which caused K.K. and K.K. (children) to be in an out of home placement. In order to overturn the juvenile court’s decision as to the sufficiency of the evidence, “[t]he result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

At ¶ 2

The court found that the record supports the juvenile court’s determination that Father neglected his children, thereby justifying the termination of his parental rights.

At ¶ 3–4

Father next asserts that rules 55 and 58 of the Utah Rules of Appellate Procedure unconstitutionally deny his right to a meaningful appeal by permitting appellate review absent full briefing. The Utah Supreme Court has resolved this issue and determined that an appellate court may constitutionally render a decision on the merits with only a presentation of the issues along with an appellate court’s independent examination of the record. See In re B.A.P., 2006 UT 68, ¶ 20, 148 P.3d 934.

At ¶ 5

In re R. D. (B. H. v. State), 2013 UT App 127, No. 20130270-CA (May 16, 2013, 2013)

ISSUE: Appeal for Order Terminating Parental Rights

Per Curiam,

B. H. appeals the juvenile court’s order terminating her parental rights in R.D. She first asserts that the court committed plain error when it permitted the father’s counsel to represent him when counsel had a conflict of interest. To demonstrate plain error, a party must show that an error exists, that the error should have been obvious to the court, and that there is a reasonable likelihood that the error affected the outcome of the case. In this case, there is nothing in the record to indicate that the court was aware of a conflict of interest. Therefore, B. H. cannot establish plain error. Next, B. H. asserts that there was insufficient evidence to terminate her parental rights. The Court finds that there was sufficient evidence, and affirmed the termination B. H.’s parental rights.