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.