June 27, 2013, Utah Court of Appeals Case Summaries

June 27, 2013

Utah Court of Appeals

Williams v. Department of Corrections, 2013 UT App 159, No. 20120025-CA (June 27, 2013)

ISSUE: Rule 65B Motions; Interpreting Pleadings

Judge Voros,

Reginald Williams appeals the dismissal of his rule 65B petition and associated claims against the Utah Department of Corrections (the Department). We reverse and remand.

At ¶ 1.

Williams initiated this action by filing a document entitled “Petition for Extraordinary Relief, Independent Action, Petition for Review of Records Denial.” The Department moved to dismiss. Williams opposed the motion to dismiss and moved to disqualify the entire Utah Attorney General’s Office (the Attorney General). As grounds for his disqualification motion, he alleged that Department officials had confiscated all of his legal materials at the direction of an Assistant Attorney General (the Assistant AG), that the Assistant AG had read his legal materials related to this lawsuit, and that this exposure of his work product gave the Department an unfair advantage in defending against his claims. Consequently, he argued, all attorneys employed by the Attorney General were “required to be screened.” The Attorney General did not respond to this motion and the trial court did not rule on it. Rather, the trial court dismissed the petition.

At ¶ 3.

The Department does not respond to the merits of this claim. Rather, it asserts that “Williams did not raise the issue of shared confidences in any recognized pleading below.” It is true that Williams did not use the exact phrase “shared confidences” in his trial court motion, nor did he cite to McClellan, from which that phrase derives. But a “litigant has no obligation to ‘preserve’ his citation to legal authority.” Torian v. Craig, 2012 UT 63, ¶ 20, 289 P.3d 479 (citation omitted). “If the foundation of a claim or argument is presented in a manner that allows the district court to rule on it, a party challenging the lower court’s resolution of that matter is free to marshal any legal authority that may be relevant to its consideration on appeal.” Id. (footnote citations omitted). That is all that Williams has sought to do here.

At ¶ 5.

The parties do not claim, and the record does not reflect, that the trial court ruled on Williams’s disqualification motion. To allow a case to progress while potentially conflicted counsel continues to represent a party “threatens to taint all further proceedings in the case.” Cade v. Zions First Nat’l Bank, 956 P.2d 1073, 1081 (Utah Ct. App. 1998) (citations and internal quotation marks omitted) (identifying three factors used in deciding a motion to disqualify for breach of confidentiality). Consequently, undue delay in ruling on a disqualification motion, like “undue delay in filing a disqualification motion[,] is costly, wasteful, and prevents the speedy resolution of matters.” See Camco Constr., Inc. v. Utah Baseball Acad., Inc., 2010 UT 63, ¶ 17, 243 P.3d 1269 (footnote citation and internal quotation marks omitted) (referring to judicial disqualification). Accordingly, a court should dispose of a motion to disqualify counsel before proceeding to the merits of the case.

That did not happen here. The trial court granted the Attorney General’s motion to dismiss without having determined whether the Attorney General should be disqualified from representing the Department against Williams. We therefore reverse and remand this case for the trial court to rule on Williams’s disqualification motion.

At ¶¶ 6-7.

A proceeding under rule 65B is an extraordinary proceeding with idiosyncratic procedural rules. See Utah R. Civ. P. 65B(b) (governing the commencement of proceedings, the requisite elements of a petition, dismissal of frivolous petitions, responsive pleadings, and service); id. R. 65B(a) (relief may be granted only when “no other plain, speedy and adequate remedy is available.”) A hybrid complaint would thus require the trial court to simultaneously apply two different procedural regimes. Because this approach is unworkable, the trial court had discretion to dismiss from a petition for extraordinary relief any claims seeking ordinary relief.

At ¶ 10.

State v. Wimberly, 2013 UT App 160, No. 20110946-CA (June 27, 2013)

ISSUE: Entering a conviction after a plea held in abeyance;

Judge Voros,

Elbert Clint Wimberly entered a plea in abeyance to one count of aggravated assault. See Utah Code Ann. § 76-5-103 (LexisNexis 2012).1 After determining that Wimberly had violated the terms of the plea in abeyance agreement, the trial court terminated the agreement, entered the guilty plea previously held in abeyance, and sentenced him to prison. Wimberly appeals both the entry of the guilty plea and the sentence. We affirm.

At ¶ 1.

The Court outlines the background of this case.

At ¶¶ 2-4.

Wimberly contends that the trial court “erred when it revoked Wimberly’s probation because there is insufficient evidence to support a finding that Wimberly’s violations were willful.” This framing of the issue assumes that Wimberly was placed on probation, that his probation was revoked, and consequently that the State was required to show that his violations were willful. We do not share these assumptions.

At ¶ 7.

While a plea in abeyance agreement is not probation, “[t]he court may require the Department of Corrections to assist in the administration of the plea in abeyance agreement as if the defendant were on probation to the court under Section 77-18-1.” Id. § 77-2a-3(4) (emphasis added).

At ¶ 9.

If the court learns from AP&P or otherwise that the defendant may have violated the terms of the plea in abeyance agreement, the court “may issue an order requiring the defendant to appear before the court at a designated time and place to show cause why the court should not find the terms of the agreement to have been violated and why the agreement should not be terminated.” Id. § 77-2a-4(1) (LexisNexis 2012). If after an evidentiary hearing “the court finds that the defendant has failed to substantially comply with any term or condition of the plea in abeyance agreement, it may terminate the agreement and enter judgment of conviction and impose sentence against the defendant for the offense to which the original plea was entered.” Id. (emphasis added).

At ¶ 10.

A plea in abeyance is thus analytically distinct from probation. . . .

At ¶ 11.

Although at various times the trial court, AP&P, and counsel all referred to the plea in abeyance agreement as “probation,” Wimberly was in fact never placed on probation. Rather, the trial court directed AP&P “to assist in the administration of the plea in abeyance agreement as if [Wimberly] were on probation.” See Utah Code Ann. § 77-2a-3(4). We detect no fundamental confusion on the trial court’s part. It issued an order to show cause and scheduled an evidentiary hearing. At the conclusion of the hearing it found that Wimberly was “in violation of the terms of his plea [in] abeyance” and accordingly “enter[ed] the plea,” with the result that “he now has a third degree felony on his record.” The trial court then scheduled the matter for sentencing. All this was in keeping with Utah Code section 77-2a-4(1).

At ¶ 12.

. . . No Utah case has ever held or implied that a finding of willfulness is required before a trial court may terminate a plea in abeyance agreement, enter a conviction, and impose a sentence, including incarceration. The standard specified by the controlling statute, and uniformly applied by our case law, is substantial compliance.

At ¶ 13.

Wimberly did not contend below, nor does he contend on appeal, that the evidence was insufficient to demonstrate that he “failed to substantially comply with any term or condition of the plea in abeyance agreement.” Utah Code Ann. § 77-2a-4(1) (LexisNexis 2012). Because he has not shown, or indeed undertaken to show, that the trial court violated the applicable standard in ruling that he violated the plea in abeyance agreement, Wimberly’s challenge to the trial court’s entry of his guilty plea fails.

At ¶ 17.

The Court rejects Defendant’s contention that the trial court erred in sentencing him to jail time rather than probation, because a Defendant does not have a right to probation and the judge’s determination was within the “wide latitude and discretion” granted in sentenceing.

At ¶¶ 18-22.

Paget v. UDOT, 2013 UT App 161, No. 20120481-CA (June 27, 2013)

ISSUE: Admissibility of Expert Testimony; Insufficiency of evidence to establish that UDOT’s construction was reasonably safe as a matter of law.

Judge Orme,

Timothy and Annette Paget initiated this negligence action against the Utah Department of Transportation (UDOT) after a horrific car crash in which Annette was severely injured and their daughter was killed. The district court granted summary judgment in favor of UDOT, and the Pagets now appeal from that decision. While we affirm the court’s ruling on the inadmissibility of expert testimony, we reverse the summary judgment.

At ¶ 1.

The Court outlines the background og this case.  Specifically, the testimony of UDOT’s expert witness that UDOT’s failure to build a barrier between eastbound and westbound traffic at the accident site was with the industries standard of care, and Plaintiffs’ expert testimony that the failure violated the standard care.

At ¶¶ 2-5.

Admissibility of Expert Testimony

The Court discusses what is required for an expert to satisfy the necessary “indicia of reliability” to be admissible, as outlines in the Utah Supreme Court’s seminal case on the issue, Gunn Hill Dairy Properties, LLC v. Los Angeles Department of Water & Power, 2012 UT App 20, 269 P.3d 980.

At ¶¶ 8-10.

[A]n opinion based on principles or methodologies that are not generally accepted by the relevant expert community or that offers an unconventional perspective does not meet the necessary threshold simply because that opinion was rendered by a qualified expert. See Gunn Hill, 2012 UT App 20, ¶ 30 (explaining that rule 702 requires a bifurcated analysis of admissibility and that a reliability determination under rule 702(b) is separate and distinct from an assessment of the expert’s qualifications under rule 702(a)). On the contrary, when an expert opinion is based on principles or methodologies that are not generally accepted in the relevant expert community, a proponent of that opinion can meet the requisite “threshold showing” only by demonstrating other indicia of reliability. See Utah R. Evid. 702 advisory committee note (noting that a failure to show general acceptance in the relevant expert community does not make the opinion inadmissible but does require that the threshold be satisfied by “other means”). Accordingly, if an expert opinion is not based on generally accepted principles or methodologies and is also devoid of other indicia of reliability, a trial court is well within its gatekeeping discretion to exclude the proposed testimony. See id.

We conclude that the district court did not abuse its gatekeeping function by excluding Ruzak’s proposed testimony. The AASHTO standards are generally accepted as the benchmark for designing and constructing highways in Utah. By his own admission, Ruzak is not aware of a generally accepted standard that substantiates his recommendation to go above and beyond or deviate from the AASHTO guidelines, and the Pagets have not pointed to one. Therefore, Ruzak’s methodology is not based on a generally accepted standard, and it was incumbent upon the Pagets to provide other indicia demonstrating the reliability of his methodology.

At ¶¶ 11-12.

The Court review’s Plaintiffs’ expert’s testimony for other indicia of reliability and determines that

Ruzak’s opinion is based on evaluations that contain incorrect measurements and inadmissible data. The Pagets have not pointed to any generally accepted standard that substantiates his methods, and they have failed to provide any other indicia that his proposed testimony is reliable. We conclude that the district court properly excluded his testimony.

At ¶¶ 13-15.

Summary Judgment

UDOT contends that once Ruzak’s testimony is excluded, the Pagets’ claim fails as a matter of law and UDOT is entitled to summary judgment. We disagree. Regardless of whether Ruzak’s testimony is excluded, summary judgment is not appropriate unless UDOT, as the moving party, has demonstrated that it is entitled to judgment as a matter of law. See [Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600 (“A summary judgment movant must show both that there is no material issue of fact and that the movant is entitled to judgment as a matter of law.”]  Thus, we turn to the relevant standard of care and the report from Alcorn, UDOT’s expert.

At ¶ 16.

AASHTO’s tripartite median barrier recommendation scheme provides no guidance on whether and under what circumstances a median barrier should reasonably be installed, especially when a location falls within the “Barrier Optional” category. Other than the direction to consider the “history of crossmedian crashes,” the Roadside Design Guide does not provide any criteria whatsoever, and the categories on either side of this nebulous “Barrier Optional” category are of little help. On the one hand, if a barrier is “Not Normally Considered,” the logical implication is that typically a barrier will not be necessary, but in atypical or abnormal circumstances it will be. Conversely, the “Evaluate Need For Barrier” category suggests, at the very least, that a barrier will not always be necessary—hence the need to evaluate its necessity. Unfortunately, the Roadside Design Guide does not state any factors or unusual circumstances that should be considered in evaluating necessity. Given the confusing nature of what should be the more predictable categories on either side of it, the “Barrier Optional” category appears to countenance little more than a free-for-all, affording highway designers carte blanche discretion to build or not to build barriers based, apparently, on little more than whim.

UDOT’s decision not to construct a median barrier appears to be based solely upon section 6.2’s unsatisfying matrix. And from what appears in his report, Alcorn’s conclusion that a median barrier was not warranted at the crash site also stems purely from the crash site’s “Barrier Optional” categorization. After entering the average daily traffic volume and median width into the matrix, and without any additional explanation or consideration of the crash site’s “history of cross‐median crashes,” Alcorn arrived at the conclusion that a median barrier was “not warranted” when the road was designed or constructed and was “optional” at the time of the accident. His report does not list any factors, other than the matrix, that may have guided UDOT’s actual decision not to build a barrier initially or later. More importantly, the report does not provide any meaningful analysis about whether the decision not to construct a barrier was reasonable. Instead, it merely recited that a barrier was “optional” at the time of the crash and then jumped to the unexplained conclusion that a barrier was “not warranted.” Indeed, the report’s reasoning appears to be entirely circular: The AASHTO matrix defines the applicable standard of care, and because construction of a median at the crash site was optional, the standard was satisfied because UDOT opted not to construct a median. Such an approach, much like the matrix itself, begs the question of whether opting not to install a median barrier at the crash site was a reasonable choice even when taking into account the premise that the decision was optional rather than mandatory.

Without more, we are unconvinced that UDOT’s decision not to construct a median barrier was reasonable as a matter of law. While we understand that, under AASHTO, the decision whether to erect a barrier was optional, both Alcorn and UDOT have wholly failed to explain why UDOT’s decision was reasonable. UDOT seems to suggest that because a barrier was optional it would have been reasonable either to construct a barrier or not to construct a barrier. But without any sort of explanation as to how UDOT actually came to its decision, there is no way of knowing whether UDOT’s decision was grounded in reasonable and prudent judgement or whether it all boiled down to something as arbitrary as a design engineer’s mental flip of a coin.

At ¶¶ 19-21.

AASHTO’s rudderless median barrier requirements cannot, without more, serve as the standard of care by which the reasonable and prudent construction of highway median barriers is measured. Because UDOT has failed to demonstrate anything other than that a median barrier was optional under AASHTO, it has failed in its burden to prove that its actions in selecting the option it did were reasonable as a matter of law and that it is entitled to judgment as a matter of law. We therefore conclude that the district court erred in granting summary judgment in favor of UDOT

At ¶ 22.

In re P.D., 2013 UT App 162, No. 20120227-CA (June 27, 2013)

ISSUE: Mandatory Evidentiary Hearing in Custody Modification Proceedings and Harmless Error

Judge Orme,

Appellant E.D. (Father) appeals an order from the juvenile court that awarded full custody and guardianship of their son to Mother. Father argues that he was improperly denied an evidentiary hearing as required by rule 47 of the Utah Rules of Juvenile Procedure. We agree with Father, but we decline to reverse because Father has failed to meet his burden to show that the error was harmful.

At ¶ 1.

The Court outlines the background of this case.  Specifically, Father’s admissions that he had sexually abused his son, P.D., the juvenile court’s determination to award Mother full custody, and the juvenile court’s denial of Father’s request for an evidentiary hearing.

At ¶¶ 2-4

Rule 47 of the Utah Rules of Juvenile Procedure provides: The court shall not modify a prior order in a review hearing that would further restrict the rights of the parent, guardian, custodian or minor if the modification is objected to by any party prior to or in the review hearing. The court shall schedule the case for an evidentiary hearing and require that a motion for modification be filed with notice to all parties in accordance with Section 78A-6-1103.

At ¶ 6.

Because the plain language of the rule permits the objection to be made “in” the review hearing, it rather clearly allows the objection to be made at any time before the hearing ends. Thus, Father’s objection was timely.

At ¶ 7.

While the practical effect of the February 2012 order was merely to continue the custody arrangement ordered in November 2011, Father’s rights were still significantly restricted when compared with the permanent custody order included in the couple’s divorce decree. Indeed, the divorce decree appears to be the order that the juvenile court was referring to when it stated, “The prior order that [Father] and [Mother] have joint legal custody of [P.D.] is vacated. Full custody and guardianship of [P.D.] is awarded to [Mother].” Moreover, while the February 2012 order did not tinker much with the quantum of custody and visitation that had been decreed in the November 2011 order, the new order moved the disposition from temporary to permanent—a momentous change in Father’s view. Father’s rights had been in a state of flux following the allegations of abuse and petition for a protective order. We determine that the modification made at the February 2012 hearing was a change that, if for no other reason than it moved the custody arrangement from being temporary to permanent, “further restrict[ed]” Father’s parental rights. See id. Therefore, we conclude that rule 47 does apply.

At ¶ 10.  

Father has failed to meet his burden to show that had an evidentiary hearing been granted, “‘the likelihood of a different outcome [would have been] sufficiently high as to undermine our confidence in the [judgment].’” Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991)). Mother was given full custody, on a temporary basis, after the allegations of sexual and other abuse were made against Father. These allegations were later deemed by the court to be true after Father entered a plea under rule 34(e). As the juvenile court pointed out, “There’s a court finding in place he sexually abused his son. And so I take that and determine . . . what I need to do, given this information.” While the juvenile court expressed concern that Father had not fully understood the consequences of a rule 34(e) plea, the court also made it clear that the consequences were fully explained to and acknowledged by Father before the plea was entered. The findings of sexual abuse against Father have not been vacated or modified, and Father has failed to demonstrate how an evidentiary hearing would have elicited evidence that would convince the court that requiring P.D. to spend more time with an adjudicated sex offender—an adjudicated sex offender who had abused him—was in the child’s best interest.

At ¶ 12.