June 13, 2013, Utah Court of Appeals Case Summaries

Utah Court of Appeals Case Summaries

June 13, 2013

Hadley v. Department of Workforce Services, 2013 UT App 145, No. 20120282-CA

(June 13, 2013)

ISSUE: Unemplyment Benefits Equity and Good Conscience Standard

Per Curiam,

Petitioner Kim M. Hadley seeks judicial review of orders of the Workforce Appeals Board (the Board) affirming a denial of unemployment insurance benefits, see Utah Code Ann. § 35A-4- 405(1)(b) (LexisNexis Supp. 2012), and imposing an overpayment and civil penalty for fraud, see id. § 35A-4-405(5)(c). The Board concluded that Hadley had voluntarily quit her job without good cause and that it would not be contrary to equity and good conscience to deny unemployment benefits to her. We decline to disturb the Board’s ruling.

At ¶ 1.

On appeal, Hadley does not challenge the Board’s determination that she voluntarily quit without good cause. Instead, Hadley argues that the Board acted arbitrarily and capriciously and abused its discretion in determining that she did not satisfy the equity and good conscience standard. The Utah Legislature has provided that “[a] claimant may not be denied eligibility for benefits if the claimant leaves work under circumstances where it would be contrary to equity and good conscience to impose a disqualification.” Utah Code Ann. § 35A-4-405(1)(b) (LexisNexis Supp. 2012); see also Utah Admin. Code R994-405-103(1) (“If the good cause standard has not been met, the equity and good conscience standard must be considered in all cases . . . .”). Specifically, Hadley alleges that the Board minimized or failed to consider substantial evidence justifying her decision to quit and that such evidence establishes that it would be unreasonably harsh or an affront to fairness to deny her benefits. See Utah Admin. Code R994-405-103(1) (“If there are mitigating circumstances, and a denial of benefits would be unreasonably harsh or an affront to fairness, benefits may be allowed under the provisions of the equity and good conscience standard . . . .”).

At ¶ 8.

“‘Determining what constitutes equity and good conscience presents a mixed question of law and fact on which we defer to the Board, so long as its decision falls within the limits of reasonableness and rationality.’” Davis v. Department of Workforce Servs., 2012 UT App 158, ¶ 7, 280 P.3d 442 (mem.) (quoting Wright v. Workforce Appeals Bd., 2011 UT App 137, ¶ 9, 254 P.3d 767 (mem.)). To establish that a denial of unemployment insurance benefits would be against equity and good conscience, the claimant must demonstrate that, among other things, she acted reasonably in deciding to quit. See Utah Admin. Code R994-405-103(1)(a). A claimant acts reasonably where “the decision to quit [is] logical, sensible, or practical” and “[t]here [is] evidence of circumstances

which, although not sufficiently compelling to establish good cause, would have motivated a reasonable person to take similar action . . . .” Id.

At ¶ 9.

we conclude that the Board acted within the bounds of reason and rationality in concluding that Hadley’s decision to quit was not “logical, sensible, or practical.” See Utah Admin. Code R994-405-103(1)(a). Although the Board acknowledged Hadley’s professional and ethical concerns, it concluded that Hadley had provided no evidence that USDB’s policy actually discriminated against her students or their parents or that the policy is, in fact, illegal. To the contrary, Hadley admitted at the hearing that she was never asked to do anything illegal and she opined that IEP meetings with the students’ parents satisfied the requirements of the federal Individuals with Disabilities Education Act, despite the pre-IEP meetings. Under these circumstances, the Board concluded that it was unreasonable for Hadley to quit before finding alternative employment.

We cannot say that it was irrational or unreasonable for the Board to conclude that Hadley could have continued working for USDB until she was able to find other employment.3 Accordingly, the Board’s determination that denying Hadley unemployment benefits was not contrary to equity and good conscience “falls within the limits of reasonableness and rationality.” See Davis v. Department of Workforce Servs., 2012 UT App 158, ¶ 7, 280 P.3d 442 (mem.) (citation and internal quotation marks omitted). We therefore decline to disturb the Board’s rulings.

At ¶¶ 13-14.

Sunridge Development v. RB&G Engineering, 2013 UT App 146, No. 201110490-CA (June 13, 2013)

ISSUE: Rule 56(f); Proof of Lost Profits, Best Evidence Rule and Summaries of Voluminous Original Documents

Judge Voros,

Sunridge Enterprises, LLC, appeals the trial court’s entry of summary judgment in favor of RB&G Engineering, Inc (RB&G). We affirm.

At ¶ 1.

The Court reviews the record of the case and concludes that the trial court did not abuse its discretion by denying Sunridge Enterproses’ rule 56(f) motion for additional discovery.

At ¶¶ 5-9.

Sunridge Enterprises claims that the trial court erred by ruling that it had not provided sufficient evidence to create a genuine issue of material fact as to the amount of damages. To succeed on a breach of contract claim, “[a] plaintiff is required to prove both the fact of damages and the amount of damages.” Id. ¶ 16. To prove the amount of damages, the plaintiff must produce “evidence that rises above speculation and provides a reasonable, even though not necessarily precise, estimate of damages.” TruGreen Cos. v. Mower Bros., Inc., 2008 UT 81, ¶ 15, 199 P.3d 929 (citation and internal quotation marks omitted). “[M]ere conclusions and conjecture” will not suffice. Stevens-Henager College, 2011 UT App 37, ¶ 29. Rather, the plaintiff must provide “supporting evidence” from which the factfinder may derive a reasonable estimate of the amount of damages. See Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986) (per curiam); Stevens-Henager College, 2011 UT App 37, ¶ 28.

When the alleged damages include lost profits, the plaintiff must prove net loss. See Stevens-Henager College, 2011 UT App 37, ¶¶ 26–28; see also Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 1985). “Net profits are determined by computing the difference between the gross profits and the expenses that would be incurred in acquiring such profits.” Sawyers, 722 P.2d at 774. Therefore, “[r]easonable certainty requires more than a mere estimate of net profits. In addition to proof of gross profits, there must generally be supporting evidence of overhead expenses, or other costs of producing income from which a net figure can be derived.” Id.

At ¶¶ 13-14.

The Court reviews the damages evidence presented by Suridge Enterprises and determines that

The facts Sunridge Enterprises points to are insufficient to create a genuine issue of material fact because they do not include any admissible evidence as to net loss, see Bowers v. Call, 2011 UT App 143, ¶ 2, 257 P.3d 433; Stevens-Henager College, 2011 UT App 37, ¶¶ 26–28, and the supporting evidence is insufficient to “permit the trier of fact to determine with reasonable certainty the amount of lost net profits,” Sawyers, 722 P.2d at 774; see also TruGreen, 2008 UT 81, ¶ 15.

At ¶ 16.

One document Sunridge Enterprises relied on below was a Cost/Loss Analysis prepared by Stewart and four other individuals. The Cost/Loss Analysis listed the building cost for four representative buildings, the sales price for the units in those buildings, an average unit cost, an average unit sales price, and, using the averages, a per-unit loss and total loss for the fourteen unbuilt units. The Cost/Loss Analysis was presented as a summary of voluminous documentary evidence under Utah Rule of Evidence 1006. However, the trial court ruled that the Cost/Loss Analysis was inadmissible because it did not meet the requirements of rule 1006.

. . .

. . . Sunridge Enterprises does not challenge this ruling on appeal. Therefore, the Cost/Loss Analysis is inadmissible, and Sunridge Enterprises may not rely on it to show that a genuine issue of material fact exists. See Bowers v. Call, 2011 UT App 143, ¶ 2, 257 P.3d 433.

At ¶¶ 18-21.

Although a summary under rule 1006 “should be reduced to writing,” International Harvester, 626 P.2d at 422, a witness with independent firsthand knowledge of facts may testify even if those facts also appear in an inadmissible writing, recording, or photograph, see 2 Kenneth S. Broun et al., McCormick on Evidence § 234 at 135, 138 (7th ed. 2013); see also Shurtleff v. Jay Tuft & Co., 622 P.2d 1168, 1174 (Utah 1980) (noting that even though a summary was properly excluded at trial, the witness who prepared the summary was allowed to testify as to the facts reflected in the summary and use the exhibit to refresh her memory). But if the witness’s testimony “depends upon the writing, not firsthand knowledge acquired separate[ly] from the writing,” the testimony is inadmissible. R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 842–43 (2012–2013 ed.) (emphasis added); see also Utah R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); id. R. 1002 (“An original writing, recording, or photograph is required in order to prove its content, except as otherwise provided in these rules . . . .”).

At ¶ 23.

. . . “In sum, any witness with knowledge of facts that exist independent of the contents of a writing, recording, or photograph may testify without raising an issue under Rule 1002. . . . But where the witness has knowledge only of the contents of such an item, testimony may be excluded under Rule 1002.” 31 Charles Alan Wright et al., Federal Practice and Procedure: Evidence § 7184 & n.45 at 391–92 (1st ed. 2000) (discussing the substantially similar federal equivalent to Utah Rule of Evidence 1002).

We question whether Stewart had personal knowledge of the net loss independent of the inadmissible summary. In his deposition, Stewart identified the loss per unit as $75,570 and the total loss as roughly $1,057,000. However, Stewart identified these figures using the Cost/Loss Analysis. Stewart stated in his deposition that he participated in the preparation of the Cost/Loss Analysis in some unspecified way along with four other individuals. Stewart’s involvement in the preparation of the summary may have given him personal knowledge sufficient to lay foundation for the underlying business records and the summary. But it appears that Stewart merely testified based on the contents of the inadmissible summary, and not based on his independent knowledge of the facts reflected in the summary. Allowing Sunridge Enterprises to raise a genuine issue of material fact through such testimony would circumvent the requirements of rules 1002 and 1006 by placing the contents of the summary before the court through other means. See Utah R. Evid. 1002; id. R. 1006; Intermountain Farmers, 574 P.2d at 1165.

At ¶¶ 24-25.

However, even if Stewart’s conclusions as to lost income are accepted, Stewart’s deposition testimony is insufficient to create a genuine issue of material fact, because Stewart provides no basis for calculating net loss. See Stevens-Henager College, 2011 UT App 37, ¶¶ 26–29. The fact that the number Stewart identified in his deposition reflects net loss can only be gleaned by reference to the inadmissible Cost/Loss Analysis, not from the deposition testimony alone. Stewart discusses costs in general terms but never provides any figures, either for the total cost of building the additional units or for building an average unit. Nor does Sunridge Enterprises cite any passage where he states that the figures he identified as lost income took costs into account, let alone explain what those costs might have included. Rather, the testimony simply provides an unsubstantiated and unexplained conclusion as to lost income. See Id. ¶ 29. Stewart’s deposition testimony thus fails to provide any “supporting evidence of overhead expenses, or other costs of producing income from which a net figure can be derived.” See Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986) (per curiam). Without such information, Sunridge Enterprises has not “provided sufficient information for the jury to . . . calculate the amount of damages” without speculation. See Stevens-Henager College, 2011 UT App 37, ¶ 28.

At ¶ 26.

Sunridge Enterprises has not shown that the trial court erred in finding that Sunridge Enterprises had a full opportunity to conduct discovery. The trial court acted within its discretion in denying Sunridge Enterprises’ request for additional discovery. Sunridge Enterprises has also failed to show that it produced sufficient admissible evidence of the amount of alleged damages to survive summary judgment.

At ¶ 31.

Woodward v. LaFranca, 2013 UT App 147, No. 20120545-CA (June 13, 2013)

ISSUE: Credibility Determinations & Best Interest of the Child

Judge Davis,

James Woodward (Father) challenges the trial court’s denial of his petition to modify the custody provisions of his and Julie LaFranca’s (Mother) divorce decree. We reverse and remand for further proceedings.

At ¶ 1.

Father first challenges the trial court’s determination that the Therapist and the Evaluator were not credible and that the Special Master’s testimony was unpersuasive. “[A]lthough the trial court [is] not bound to accept” an expert’s recommendation, the court is expected to articulate “some reason for rejecting the recommendation.” Tuckey v. Tuckey, 649 P.2d 88, 91 (Utah 1982) (remanding for additional findings where the trial court rejected, without explanation, the recommendations of the Department of Social Services); accord Sukin, 842 P.2d at 925–26 (remanding for additional findings where the trial court failed to explain its rejection of a custody evaluator’s recommendation). In this case, even though the trial court articulated several reasons for rejecting the experts’ testimonies, Father maintains that those reasons were unsupported by the evidence and insufficient to undermine the experts’ credibility. “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.” Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991). Nevertheless, a finder of fact “is [not] at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt.” Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 216 (1931). Thus, we may reverse a trial court’s credibility determination if its findings in support of that determination are “clearly erroneous,” that is, if they “are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987); cf. State v. Krukowski, 2004 UT 94, ¶¶ 23–24, 100 P.3d 1222 (ordering that, unless the court of appeals could affirm on alternative grounds, the case should be remanded for the trial court to reconsider a witness’s credibility where the trial court’s original credibility determination was premised on its erroneous view that the witness had failed to comply with a duty to disclose certain information to the magistrate).

At ¶ 7.

The Court reviews the trial court’s credibility determinations and determines that the trial court abused its discretion in determining that the expert witnesses lacked credibility and dismissing all of their testimony.

At ¶¶ 8-20.

Father next contends that the trial court abused its discretion in determining that it was in Child’s best interests for Mother to be awarded custody because its analysis of the best interests factors focused on whether “Mother is an acceptable parent” rather than whether “Mother is more acceptable than Father, in light of all the facts and circumstances of the case.” We agree.

At ¶ 21.

The best interests determination affords no special presumption in favor of the status quo except to the extent that “a child’s interest in the stability of his or her present environment” may be considered as “one of numerous factors” impacting the child’s best interests. Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982); see also Utah Code Ann. § 30‐3‐10.4(2)(c) (LexisNexis Supp. 2012) (directing courts to “give substantial weight to the existing . . . custody order when the child is thriving, happy, and welladjusted”). Accordingly, a change in custody based on best interests does not require a determination that the custodial parent has been somehow derelict, but only that, weighing all of the circumstances, a change in custody will be “better” for the child. Hogge, 649 P.2d at 55.

At ¶ 23.

To the extent that the trial court’s determinations regarding the best interests factors were premised on its erroneous determinations regarding the experts’ credibility, they should be reexamined on remand to take into account evidence that was discounted on that basis. Furthermore, the persuasiveness of the experts’ testimonies should not be considered in isolation, but in the context of the other experts’ observations and opinions, as well as any other evidence bearing on the best interests factors. Finally, in weighing the best interests factors, the trial court must consider the parties’ relative strengths so as to base its best interests determination not on Mother’s ability as a parent, but on the parties’ relative ability to serve the best interests of the Child. In analyzing the evidence relating to each of these factors, the trial court should specifically explain its reasons for rejecting relevant expert testimony regarding those factors. Accordingly, we reverse and remand for additional proceedings consistent with this opinion.

At ¶ 34.

State v. Stone, 2013 UT App 148, No. 20110818-CA (June 13, 2013)

ISSUE: Lack of Jurisdiction for failure to file timely Motion to Withdraw Guilty Plea

Judge McHugh,

Jerod Stone appeals from his convictions of aggravated kidnapping and robbery. We dismiss for lack of jurisdiction.

At ¶ 1.

On appeal, Stone argues that he was denied effective assistance of counsel and that the district court committed plain error by accepting his guilty pleas. The State contends that we lack jurisdiction to review Stone’s claims because Stone did not move to withdraw his guilty pleas pursuant to Utah Code section 77-13-6. Whether a court has subject matter jurisdiction is “a question of law, which we review for correctness, granting no deference to the district court.” State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990.

At ¶ 4.

We agree with the State that we lack jurisdiction to review the validity of Stone’s guilty pleas. Utah Code section 77-13-6 governs the withdrawal of guilty pleas, providing, in relevant part, that “[a] request to withdraw a plea of guilty . . . shall be made by motion before sentence is announced.” Utah Code Ann. § 77-13- 6(2)(b) (LexisNexis 2012). It further provides that “[a]ny challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under Title 78B, Chapter 9, Post- Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure.” Id. § 77-13-6(2)(c). “Section 77-13-6(2)(b) imposes a jurisdictional bar on late-filed motions to withdraw guilty pleas, and failure to comply with its requirements extinguishes a defendant’s right to challenge the validity of the guilty plea on appeal.” Grimmett v. State, 2007 UT 11, ¶ 8, 152 P.3d 306 (citations and internal quotation marks omitted). “When a defendant pleads guilty, he ‘waives all nonjurisdictional defects, including alleged pre-plea constitutional violations.’” State v. Smith, 2013 UT App 52, ¶ 6 (quoting State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046). “Thus, ‘failure to withdraw a guilty plea within the time frame dictated by [Utah Code] section 77‐13‐6 deprives [both] the trial court and appellate courts of jurisdiction to review the validity of the plea.’” Id. (alterations in original) (quoting State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344).

At ¶ 5.

Stone argues that the jurisdictional bar in section 77-13-6 is unconstitutional because it requires him to attack the validity of his pleas pursuant to rule 65C of the Utah Rules of Civil Procedure and the Post-Conviction Remedies Act (PCRA), see Utah Code Ann. §§ 78B-9-101 to 405 (LexisNexis 2012), which are inadequate because they do not guarantee him a right to competent legal counsel “in what may be considered the most critical stage of the post-conviction proceeding—the filing of the petition itself,” see id. § 78B-9-109(1) (“If any portion of the petition is not summarily dismissed, the court may, upon the request of an indigent petitioner, appoint counsel on a pro bono basis to represent the petitioner in the post-conviction court or on post-conviction appeal.” (emphasis added)); Utah R. Civ. P. 65C(j) (same).

At ¶ 8.

The Court recounts the caselaw established in State v. Merrill, 2005 UT 34, 114 P.3d 585, and State v. Rhinehart, 2007 UT 61, 167 P.3d 1046, and determines that

For the reasons expressed by our supreme court in Merrill and Rhinehart, we reject Stone’s argument that section 77‐13‐6 violates his constitutional right to the effective assistance of counsel. Stone’s right to pursue a challenge to the validity of his guilty pleas is preserved in spite of his failure to file a timely motion to withdraw, thus satisfying “the demands of due process.” See Merrill, 2005 UT 34, ¶ 30.

At ¶¶ 9-11.

Tolbert v. Kelly, 2013 UT App 149, No. 20120777-CA (June 13, 2013)

ISSUE: Scope of a Settlement Agreement

Per Curiam,

David and Judy Kelly appeal the trial court’s order dismissing their claim against Kay E. Tolbert pursuant to a settlement agreement entered into in October 2008. We affirm.

At ¶ 1.

The Kellys argue that there was no meeting of the minds regarding the dismissal of their claim against Mrs. Tolbert because she did not attend the mediation at which the settlement was reached. They contend that, as a result, the agreement did not apply to their claim against Mrs. Tolbert and that the trial court erred in determining that the claim was within the scope of the agreement. 

At ¶ 2.

Settlement agreements are governed by the same principles that apply to general contract actions. LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867. An essential component of the formation of an agreement is a meeting of the minds regarding the integral terms. Id. Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact which appellate courts review for clear error. Id. ¶ 13. Where the language of an agreement is unambiguous, the agreement may be interpreted as a matter of law. Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134.

At ¶ 3.

The Kellys fail to show that there was no meeting of the minds between the parties to the settlement agreement—Mr. Tolbert and the Kellys. The language of the agreement is unambiguous as to the dismissal of all claims. The Kellys undertake no analysis of the language of the agreement to show otherwise. The claim against Mrs. Tolbert is certainly a claim “arising under” the case below. The assertion that there is no agreement with Mrs. Tolbert is simply irrelevant to the agreement actually made given the broad scope of the release.

At ¶ 5.