May 9, 2013 Utah Court of Appeals Case Summaries

May 9, 2013

Utah Court of Appeals Cases

Dickman Family Properties v. White, 2013 UT App 116, No. 20110126-CA (May 9, 2013)

ISSUE: Standard of Proof in Contempt Proceedings

Judge Roth,

This decision was initially issued on October 25, 2012.

Defendants appeal the district court’s decision that a third-party witness should not be held in contempt. In particular, the Whites challenge the court’s determination that the contempt proceeding was criminal in nature and, thus, required application of the beyond a reasonable doubt standard of proof. According to the Whites, the court should have treated the matter as a civil contempt proceeding and applied a clear and convincing evidence standard of proof. Because the Whites failed to preserve this issue in the district court, we affirm.

At ¶ 2

A contempt proceeding may be civil or criminal in nature. “‘The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.’” Shipman v. Evans, 2004 UT 44, ¶ 40, 100 P.3d 1151 (quoting Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991)). “[I]t is the purpose, not the method of the punishment, that serves to distinguish the two types of [contempt] proceedings.” Von Hake, 759 P.2d at 1168. “‘A contempt order is criminal if its purpose is to vindicate the court’s authority, as by punishing an individual for disobeying an order, even if the order arises from civil proceedings.’” Shipman, 2004 UT 44, ¶ 40 (quoting Von Hake, 759 P.2d at 1168). “A contempt order is civil if it has a remedial purpose, either to coerce an individual to comply with a court order given for the benefit of another party or to compensate an aggrieved party for injuries resulting from the failure to comply with an order.” Von Hake, 759 P.2d at 1168. The characterization of a contempt proceeding determines the applicable standard of proof: criminal contempt must be proven beyond a reasonable doubt; civil contempt must be proven by clear and convincing evidence. See id. at 1172-73.

At ¶ 3

“The decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (internal quotation marks omitted); Shipman, 2004 UT 44, ¶ 39 (explaining that the district court’s exercise of its contempt power is reviewed for an abuse of discretion). That discretion “includes not just the power to decide whether a party should be held in contempt, but the power to determine whether [the purpose of] a particular contempt order is civil or criminal.” Shipman, 2004 UT 44, ¶ 40 (citing Von Hake, 759 P.2d at 1168). “Only rarely will we reverse the [district] court’s decision in this matter” and only in circumstances where the court’s decision “is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of . . . discretion.” Id. ¶ 39 (omission in original) (internal quotation marks omitted).

At ¶ 8

The Court did not reach Defendant’s argument concerning the contempt issue because the Defendants did not preserve it for appeal.

At ¶ 12

Here, the district court explicitly “f[ound] that what is at stake [in this case] is the authority and integrity of court processes,” and therefore “conclude[d] that these [we]re criminal contempt proceedings.” The “court’s decision to treat [the contempt] proceeding as an action for criminal contempt [i]s . . . conclusive evidence of its purpose” in entertaining this contempt proceeding. See id. ¶ 41.

At ¶ 13

Following the original decision the court issued this Amended Memorandum Decision on May 9, 2013, holding that appellants arguments raised on rehearing did not alter the analysis.

Lucas v. Wells Fargo Bank, 2013 UT App. 117, No. 20120106-CA (May 9, 2013)

ISSUE: Considering Extra-pleadings Matters on a Motion for Judgment on the Pleadings

Judge Voros,

Lucas sued the Bank, Freddie Mac (purchaser of the home), eTitle Insurance Agency, and the Klungervik defendants, (builders of the home). The trial court granted judgment on the pleadings in favor of the Bank and Freddie Mac, and dismissed Lucas’s claims against the remaining defendants. Lucas appeals; the court affirms.

At ¶¶1-3

The Court finds that Lucas has not preserved his “slander of title claim” for appeal and dismisses it.

At ¶¶4-5

The Court dismisses Lucas’ argument that the trial court erred in setting aside a default certificate Lucas obtained against Freddie Mac because “Lucas has not explained the controlling legal rules on this question or established that the trial court proceedings contravened them.”

At ¶7

The Court dismisses Lucas’ res judicata argument because he failed to “carr[y] his burden of demonstrating that the trial court erred . . . .“

At ¶8

Finally, Lucas contends that his due process rights were violated because the Bank acquired his property without in fact conducting a trustee’s sale. Lucas cites his affidavit, in which he alleged that he went to “the courthouse” at the appointed time and observed no auction.

At ¶9

The trial court held a hearing on defendants’ motion for judgment on the pleadings. At that hearing, Lucas’s trial counsel asserted that “[t]he auction actually never took place, as far as on the steps.” The trial court cut off counsel’s argument, stating, “That really isn’t the issue today. . . . It’s not even in the papers,” i.e., the pleadings. At the conclusion of the hearing, the court ruled that “there is no allegation in the complaint, at all, that Wells Fargo did anything other than follow the statute as it is outlined in Title 57 and the other related sections of the Utah code.”

At ¶10

“If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” Id. R. 12(c). Lucas appeals from a judgment on the pleadings. Even if the allegations in Lucas’s affidavit were presented, they were excluded by the court. Thus, although Lucas does not frame his challenge in these terms, according him “every consideration that may reasonably be indulged,” State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171, we construe his appellate claim as a challenge to the trial court’s exclusion of his proffered evidence that no sale took place.

At ¶11

Lucas offers no basis to conclude that the trial court erred in so doing. His assertions—that the power of sale is circumscribed by strict requirements, that due process must be observed when government action deprives a person of liberty or property, and that the federal government is one of delegated powers—are beyond dispute. However, they do not support his claim that the trial court erroneously excluded matters outside the pleadings in ruling on a motion for judgment on the pleadings.

At ¶12

Nor do we believe the trial court erred. “[I]t is well-settled that it is within the district court’s discretion whether to accept extra-pleading matter on a motion for judgment on the pleadings and treat it as one for summary judgment or to reject it and maintain the character of the motion as one under Rule 12(c).” 5C Charles Alan Wright et al., Federal Practice and Procedure: Civil § 1371, at 273 (3d ed. 2004).

At ¶13

Johnson v. WSFV, 2013 UT App. 118, No. 20130115-CA (May 9, 2013)

ISSUE: Voluntary Cessation of Employment Without Good Cause

Per Curiam,

Robert Johnson seeks judicial review of a decision of the Workforce Appeals Board (the Board) denying him unemployment benefits because he voluntarily quit his job without good cause. “To establish good cause, a claimant must show that continuing the employment would have caused an adverse effect which the claimant could not control or prevent” and “that an immediate severance of the employment relationship was necessary.” Utah Admin. Code R 994-405-102. Johnson did not file a response to our sua sponte motion for summary disposition. We do not disturb the Board’s decision.

At  ¶1

Background of the case is given. Johnson’s testimony is found less credible than the employer’s testimony.  Johnson threatened to leave his work after his employer criticized him. The employer replied “maybe you should leave.” Johnson then left and never returned. The employer later stated he would not have fired Johnson because he was needed to complete the job.

At ¶2

The Board concluded that Johnson was the moving party in the separation and that he voluntarily quit his employment without good cause. Johnson did not demonstrate that he would suffer an adverse effect from his continued employment that was so serious that it outweighed the benefits of remaining employed. The Board also found no mitigating circumstances that would cause the denial of benefits to be unduly harsh or contrary to equity or good conscience.

At ¶3

We disturb the Board’s findings of fact only if the findings are “not supported by substantial evidence when viewed in light of the whole record before the court.” Utah Code Ann. § 63G-4-403(4)(g). “It is not our role to judge the relative credibility of witnesses.” Albertsons, Inc. v. Department of Emp’t. Sec., 854 P.2d 570, 575 (Utah Ct. App. 1993); see also Prosper Team, Inc. v. Department of Workforce Servs., 2011 UT App 246, ¶ 10, 262 P.3d 462 (deferring to the Board’s advantaged position to assess the claimant’s credibility). We will not disturb the Board’s application of the law to the facts as long as it is “within the realm of reasonableness and rationality.” EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334.

At ¶4

The Board’s factual findings are supported by substantial evidence in the record as a whole, and the Board’s determinations that Johnson quit his employment without good cause and he did not demonstrate that a denial of benefits was contrary to equity and good conscience are both reasonable and rational. Accordingly, we do not disturb the Board’s decision.

At ¶5

Hatch v. Kane Cnty. Bd. of Adjustment, 2013 UT App 119, No. 20110199-CA (May 9, 2013).

ISSUE:  Non-conforming Use Permits

Judge Roth,

Petitioner Howard Hatch appeals the district court’s grant of summary judgment to Defendants Kane County (the County) and the Kane County Board of Adjustment (the Board). In granting summary judgment, the court declined to disturb the Board’s decision to deny Mr. Hatch’s application for a building permit on the basis that the property on which Mr. Hatch intended to build had been improperly subdivided. We similarly decline to disturb the Board’s decision.

At ¶ 1

Sufficient Evidence

The Court reviews the facts of the case and determines that the Board’s findings were supported by substantial evidence.

At ¶ 2-10

Mr. Hatch relies on the concept of nonconformity to assert that the 1972 ordinance continues to exempt the Stevens Canyon Estates property from any regulation by the County, allowing him to perpetually reconfigure and redraw the subdivided parcels without any official oversight or approval by the County so long as the newly-created parcels are 10 acres or greater, as provided in the 1972 ordinance.

At ¶ 10

Non-conforming Use Permits

Generally, a nonconforming use is “a use of land that” “legally existed before its current land use designation,” “has been maintained continuously since the time the land use ordinance regulation governing the land changed,” and, “because of one or more subsequent land use ordinance changes, does not conform to the regulations that now govern the use of the land.” Utah Code Ann. § 17-27a-103(36) (LexisNexis Supp. 2012); see also Black’s Law Dictionary 1682 (9th ed. 2009) (defining “nonconforming use” as a “[l]and use that is impermissible under current zoning restrictions but that is allowed because the use existed lawfully before the restrictions took effect”). Based on this definition, in order for a nonconforming use to retain its lawful character once the applicable law changes, it must continue in essentially the same form as when it began. Thus, a change to or abandonment of a nonconforming use may result in the property becoming subject to the version of the law currently in effect. See, e.g., Harris v. Springville City, 712 P.2d 188, 188–89 (Utah 1984)

At ¶ 11 

It is the lots identified in the subdivision at that time that fall under the ongoing protection of the principle of nonconformity, not the process of subdivision that initially resulted in their creation. Rather, the process of subdivision that was used to create the nonconforming lots is relevant only to determine whether those lots were, in fact, lawfully created at the time they were created. That those lots remain legal now, even though they could not be created under current law in the same way they were under the prior law, does not mean that the property can be divided into new lots indefinitely, irrespective of current ordinances. Instead, division of the property into new lot configurations subsequent to the original creation of the subdivision would be subject to whatever ordinance was in effect at the time of the proposed change, as would the creation of a new and materially different lot within the subdivision boundaries.

At ¶ 12 

As a consequence, the creation of the new, much larger lot and the resulting internal reconfiguration of the subdivision does not fall within whatever grandfathered status the subdivision may have had up to that point, but is subject to the current ordinance governing the subdivision of such property.

At ¶ 13 

Evidentiary Challenge

Mr. Hatch makes a broader argument that the district court should have conducted an evidentiary hearing to “clarify” the issues raised by Mr. Hatch.

At ¶ 14-15

Judicial review of the Board’s decision “is limited to the record” of the proceedings that were held before the Board. Id. § 17-27a- 801(8)(a)(i); see also id. § 17-27a-801(7) . . . In conducting a judicial review of the Board’s decision, “[t]he court may not accept or consider any evidence outside the record . . . unless that evidence was offered . . . and the court determines that it was improperly excluded.” Id. § 17-27a-801(8)(a)(ii). For these reasons, the district court declined to hold an evidentiary hearing, and Mr. Hatch has not challenged the basis for that decision. More importantly, he has not shown that any evidence he offered to the Board was actually excluded. Therefore, the district court did not err in declining to admit new evidence.

At ¶ 16 

Sufficiency of Written Findings

Mr. Hatch challenges the legitimacy of the Board’s written findings and conclusions.

At ¶ 18-22  

The Utah Code provides that the Board’s decision “takes effect on the date when [it] issues a written decision.” Utah Code Ann. § 17-27a-708(1) (LexisNexis 2009). That “written decision . . . constitutes a final decision.” Id. § 17-27a-708(2). And “[a]ny person adversely affected by [that] final decision” “may file a petition for review of the decision with the district court within 30 days after the . . . decision is final,” i.e., after a written decision is issued. Id. § 17‐27a‐801(2)(a).

At ¶ 19  

Mr. Hatch also takes issue with the fact that the County drafted the findings and conclusions for the Board. It is not uncommon, however, for a party (usually the prevailing party) to draft a written decision. That decision is then subject to review by the opposing party and acceptance or modification by the decision-making body before it is made final. Cf. Utah R. Civ. P. 7(f)(2) (“Unless the court approves the proposed order submitted with an initial memorandum, or unless otherwise directed by the court, the prevailing party shall . . . serve upon the other parties a proposed order in conformity with the court’s decision.”).

At ¶ 22