June 6, 2013, Utah Court of Appeals Case Summaries

Utah Court of Appeals Case Summaries

June 6, 2013

State v. Gunter, 2013 UT App 140, No. 081502053-CA (June 6, 2013)

ISSUE: Remand for Findings of Fact Concerning Ineffective Assistance of Counsel

Judge McHugh,

David Alexander Gunter appeals from convictions for aggravated sexual abuse of a child, see Utah Code Ann. § 76‐5‐404.1(4)–(5) (LexisNexis 2012), and four counts of lewdness involving a child, see id. § 76-9-702.5. We affirm.

At ¶ 1.

Background of the case.

At ¶¶ 2-12.

Gunter requests that we remand this case to the trial court under rule 23B of the Utah Rules of Appellate Procedure to create a record regarding his ineffective assistance of counsel claim. See generally Utah R. App. P. 23B(a) (“A party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel. The motion shall be available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.”).

At  ¶13.

Whether a trial court properly tried a defendant in absentia is a mixed question of law and fact. See State v. Pando, 2005 UT App 384, ¶ 13, 122 P.3d 672. “The initial question—whether ‘the trial court’s inquiry regarding the voluntariness of [a defendant’s] absence was properly conducted’—is a question of law reviewed for correctness.” Id. (alteration in original) (quoting State v. Wanosik (Wanosik I), 2001 UT App 241, ¶ 8, 31 P.3d 615, affʹd, 2003 UT 46, 79 P.3d 937). “If the first question is answered in the affirmative, we next consider whether [the d]efendant was voluntarily absent, a question of fact.” Id. (citing State v. Wanosik (Wanosik II), 2003 UT 46, ¶ 15, 79 P.3d 937 (noting that “the question of voluntariness is highly fact-dependent”)).

At ¶ 14. 

Rule 23B Motion for Remand

“The purpose of [r]ule 23B is for appellate counsel to put on evidence he or she now has, not to amass evidence that might help prove an ineffectiveness of counsel claim.” State v. Johnston, 2000 UT App 290, ¶ 7, 13 P.3d 175 (per curiam). “The rule was adopted to provide a ‘procedural solution to the dilemma created by an inadequate record of trial counsel’s ineffectiveness.’” Id. (quoting State v. Litherland, 2000 UT 76, ¶ 13, 12 P.3d 92). A defendant must meet four basic requirements to obtain a rule 23B remand. “First, the motion must be supported by affidavits setting forth ‘facts not fully appearing in the record on appeal  that  show  the  claimed  deficient  performance  of  the attorney.’” Id. ¶ 8 (quoting Utah R. App. P. 23B(b)). “Second, the facts  alleged  in  support  of  a  [r]ule  23B  motion  may  not  be speculative.” Id. ¶ 10. “Third, the allegations must show deficient performance. In other words, the nonspeculative facts must focus on why counsel’s performance was deficient.” Id. ¶ 12. “Finally, the affidavits supporting the motion must ‘also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance.’” Id. ¶ 13 (quoting Utah R. App. P. 23B(b)). “These facts must demonstrate prejudice, i.e., that the result would have been different had counsel’s performance not been deficient.” Id.

At ¶ 16.    

A. Remand to Establish Cramer’s Ineffectiveness is Unnecessary.

Gunter first seeks a remand to develop the evidentiary record to support his allegation that Cramer failed to exercise reasonable professional judgment when he stipulated to continuances of the preliminary hearing without obtaining Gunter’s consent. In support, he relies on rule 7(h)(2) of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 7(h)(2) (“If the defendant does not waive a preliminary examination, the magistrate shall schedule the preliminary examination . . . [to] be held within a reasonable time, but not later than ten days if the defendant is in custody for the offense charged . . . .”).

At ¶ 17.   

Even if Gunter is correct that Cramer never discussed the continuances with him, he cannot establish that Cramer’s conduct fell below an acceptable level of performance. First, Gunter fails to cite any authority that would require defense counsel to obtain the consent of a defendant to a continuance of the preliminary hearing. Cf. Taylor v. Illinois, 484 U.S. 400, 417–18 (1988)  . . . Second,  at  least  one  of  the continuances was due to the unavailability of the State’s witnesses on the scheduled dates, which constituted good cause for the continuances under  rule  7(h)(2).  See  Utah  R.  Crim. P.  7(h)(2) (“These time periods may be extended by the magistrate for good cause shown.”); State v. Rogers, 2006 UT 85, ¶¶ 19–21, 151 P.3d 171 (determining that good cause includes efforts by the prosecution to secure the presence of critical witnesses). Thus, even assuming that Cramer stipulated to the State’s requests for continuance without Gunter’s consent, Gunter cannot establish deficient performance. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile  objections  does  not  constitute  ineffective  assistance  of counsel.”).

At ¶ 18.    

Additionally, Gunter has failed to explain how he was prejudiced by Cramer’s decisions. To the contrary, Gunter concedes that part of the reason Cramer did not object to the State’s motion for a continuance was so that he could use the additional time to obtain discovery from the State. Under these circumstances, Gunter has failed to convince us that a remand under rule 23B is necessary to establish Cramer’s ineffectiveness. 

At ¶ 19.

   

B.   Remand to Establish Chamberlain’s Ineffectiveness is Unnecessary.

Gunter also contends that a remand is necessary to establish that Chamberlain ineffectively failed to notify the trial court that Gunter was involuntarily absent from trial and similarly failed to seek a continuance so that Gunter could be present at trial. He also argues that a remand will establish that Chamberlain was unprepared and unauthorized to represent him at trial.

At ¶ 20. 

The trial court rejected these arguments, determining that Gunter lacked credibility. In support of his motion for a rule 23B remand, Gunter attaches a second affidavit from himself and an affidavit from Chamberlain. Most of the facts alleged in these affidavits are cumulative of facts Gunter alleged in his motion for a new trial and are therefore not supportive of a rule 23B remand. See State v. Johnston, 2000 UT App 290, ¶ 8, 13 P.3d 175 (“[Rule 23B] is a means to supplement the record with facts not known, even though not previously elicited in the record.”).

At ¶ 21.   

These statements fail to establish prejudice because Gunter never identifies the witnesses that his counsel allegedly failed to investigate, what those witnesses would have said, or how that testimony would have affected the outcome of the trial. This court has previously instructed that a “defendant must specifically identify uncalled witnesses and identify specific facts of their testimony that might have helped his case” in justifying a rule 23B remand.  See  id.  ¶  10  (citation  and  internal  quotation  marks omitted). Here, Gunter states that he produced “a list of witnesses [he] wanted to be interviewed and subpoenaed for trial,” without providing the identity of those witnesses or describing the specific testimony they would have given in support of his defense. Thus, Gunter has failed to allege “facts not fully appearing in the record” that would establish prejudicially deficient performance. See Utah R. App. P. 23B(b). Accordingly, we deny his request for a rule 23B remand based on his second affidavit. See State v. Garrett, 849 P.2d 578,  581 (Utah Ct. App. 1993) (“Given [rule 23B’s] clear emphasis on specific factual allegations, it  would be improper to remand a claim under rule 23B for a fishing expedition.”).

At ¶ 22.    

Although Chamberlain also indicates that if Gunter had been present he would have called him as a witness, he does not elaborate concerning the content of the testimony he expected to elicit from Gunter in his defense. See Johnston, 2000 UT App 290, ¶ 10 (requiring the defendant to identify specific facts that an uncalled witness would have provided in support of the defense).

At ¶ 23.    

With respect to Chamberlain’s alleged failure to disabuse the trial court of the notion that Gunter was voluntarily absent, his affidavit indicates that he was in contact with Gunter throughout the trial court proceedings but that Chamberlain did not share the circumstances  of  Gunter’s  absence  with  the  trial  court.  This information is cumulative of Gunter’s new trial affidavit. And even if Chamberlain’s affidavit would have convinced the trial court that Gunter was credible when he reported that he was in contact with his trial counsel, it does not establish that Gunter was involuntarily absent.   Gunter   has   pointed   us   to   no   evidence,  including Chamberlain’s affidavit, that explains why he was out of state shortly before his trial or how he managed to travel to Mexico immediately after a verdict was rendered against him but was unable to return to Utah to participate in his defense. Accordingly, Gunter has not convinced us that a remand under rule 23B is appropriate. 

At ¶ 24.

II. Trial In Absentia

1. The Trial Court Inadequately Inquired Into Whether Gunter was Voluntarily Absent.

Gunter contends that the trial court committed reversible error by proceeding with trial in absentia because it failed to conduct an adequate inquiry into whether his absence was voluntary. “‘[D]efendants have the right to be present at all stages of the criminal proceedings against them and . . . it is the burden of the prosecution to show that an absent defendant has knowingly and voluntarily waived that right’ before trying him or her in absentia.” . . . “In light of the State’s burden, ‘absent any direct evidence’ explaining the defendant’s whereabouts, the trial court will ordinarily postpone the  proceedings ‘to  permit  both  the  prosecution and  defense counsel to seek additional information.’” Pando, 2005 UT App 384, ¶ 16 (quoting Wanosik II, 2003 UT 46, ¶ 12). Where there is no explanation for the defendant’s absence, resolving the question of voluntariness “requires some form of inquiry by the trial court.” Wanosik II, 2003 UT 46, ¶ 15.

At ¶ 25.     .    

The State concedes that “no direct inquiry by the trial court appears in the record.” Thus, the record reflects that the trial court erred by failing to make an adequate inquiry into whether Gunter was voluntarily absent before proceeding with trial in absentia. . . .

At ¶ 26.

Harmless Error

“A trial court’s error in failing to conduct an adequate inquiry into whether a defendant’s absence was voluntary does not merit reversal, however, unless the defendant was prejudiced by the lack of adequate inquiry.” Wanosik I, 2001 UT App 241, ¶ 26;7 see also State v. Anderson, 929 P.2d 1107, 1111 (Utah 1996) (“It stands to reason that a defendant cannot demand repetition of a trial . . . in which he suffered no unfairness.”). Gunter argues that he was prejudiced by the proceedings in absentia because he “was represented by an attorney who was neither authorized, nor prepared, to represent” him and because he was “denied his right to be present at, and participate in, the trial proceedings.”

At ¶ 27.    .   

Despite his reliance on the new trial proceedings for establishing that he preserved his objection to trial in absentia, Gunter completely ignores on appeal the trial court’s finding that he was voluntarily absent, made after considering the evidence offered in support of a new trial. Because he has not challenged that finding, we accept it as true. See C & Y Corp. v. General Biometrics, Inc., 896 P.2d 47, 52 (Utah Ct. App. 1995) (stating that, because the appellant did not challenge the trial court’s finding, this court was required to accept the finding as true). As a result, Gunter cannot establish prejudice based on the trial in absentia. If the trial court had made appropriate inquiry on the first day of trial, it would have reached the same conclusion that it did after hearing the evidence on the new trial motion—that Gunter intentionally absented himself from the trial proceedings. Accordingly, the trial court’s error in proceeding with trial without making an adequate inquiry into Gunter’s absence was harmless. Cf. Wanosik I, 2001 UT App 241, ¶ 26. 

At ¶ 29

.     

III. Ineffective Assistance of Counsel

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). “To support an ineffective assistance of counsel claim, a defendant must demonstrate, first, ‘that counsel’s performance was deficient’ and, second, ‘that counsel’s deficient performance was prejudicial.’” State v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766 (quoting State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92). “To satisfy the first part of the test, [a] defendant must overcome the strong presumption that [his] trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (second alteration in original) (emphasis, citations, and internal quotation marks omitted). “The court give[s] trial counsel wide latitude in making tactical decisions and will not question  such  decisions  unless  there  is  no  reasonable  basis supporting them.” Id. (alteration in original) (citation and internal quotation  marks  omitted);  see  also  Strickland,  466  U.S.  at  689 (indicating that counsel should be given wide latitude in making tactical decisions). “To show prejudice, a defendant must establishthat ‘there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’” Walker, 2010 UT App 157, ¶ 13 (quoting Strickland, 466 U.S. at 695). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 

At ¶ 30.

A. Cramer’s Assistance was Not Deficient.

Gunter’s ineffective assistance arguments based on Cramer’s pretrial performance fail because Gunter replaced Cramer with Chamberlain before trial. See generally State v. Barber, 2009 UT App 91,  ¶  17,  206  P.3d  1223  . . .  Thus, Cramer’s alleged inadequate preparation had no effect on the outcome of the trial in which he did not participate. Furthermore, Gunter’s claims are directly contradicted by his argument to the trial court in support of his motion for a new trial. There, he asserted that the trial court should have sua sponte reappointed Cramer because while Chamberlain was not adequately prepared for trial, “Cramer . . . was prepared. He had an investigator, . . . [and t]hey had prepared a defense . . . .”

At ¶ 32.

As previously discussed, Gunter’s argument that Cramer should have interviewed or subpoenaed witnesses fails to establish deficiency or prejudice because Gunter does not identify the witnesses or the content of their expected testimony. See generally Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) (“[P]roof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality.”). Additionally, for the same reasons we denied Gunter’s request for a rule 23B remand, Gunter has not established that Cramer acted deficiently or that he was prejudiced by Cramer’s failure to obtain Gunter’s consent to the continuances of the preliminary hearing. See supra ¶¶ 18–19. 

At ¶ 33.

    

B. Chamberlain’s Assistance was Not Deficient.

There is no requirement that counsel engage in futile acts. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.”). Based on Gunter’s prior voluntary absences and the absence of any explanation for why he was out of the state immediately before his scheduled trial date, Chamberlain could have reasonably concluded that the trial court would not continue the proceedings. Furthermore, even if Chamberlain performed deficiently by not notifying the trial court of Gunter’s reported stranding, Gunter cannot meet his “burden of proving that [Chamberlain’s presumed] errors actually had an adverse effect on the defense and that there is a reasonable probability that, but for counsel’s . . . errors, the result of the proceeding would have been different.” See State v. Ott, 2010 UT 1, ¶ 40, 247 P.3d 344 (omission in original) (citation and internal quotation marks omitted). After the trial court was fully apprised of Gunter’s explanation for being absent, it concluded that his absence was voluntary, and Gunter has not challenged that finding on appeal. Accordingly, the result would have been the same if Chamberlain had informed the trial court of Gunter’s telephone calls—the trial court would have proceeded with the trial in absentia based on its finding that Gunter was voluntarily absent.

At ¶ 35.    

Gunter next asserts that Chamberlain rendered ineffective assistance by failing to call any witnesses at trial and by failing “to inform the trial court that he was not hired, nor prepared, to provide effective representation.” As we have previously determined, Gunter’s claims regarding the failure to call other witnesses is too speculative to establish prejudice because he has identified neither the witnesses nor the content of their testimony. See State v. Chacon, 962 P.2d 48, 50 (Utah 1998) (holding that proof of ineffective assistance must be based on “a demonstrable reality and not a speculative matter” (citation and internal quotation marks omitted)).

At ¶ 36.    

Additionally, the record shows that contrary to the limited fee agreement, Chamberlain filed a general substitution of counsel. Based on Chamberlain’s appearance, Cramer withdrew. Although this left Chamberlain as the only counsel of record, Gunter points to no evidence that he objected to Cramer’s withdrawal. As counsel of record, Chamberlain immediately filed the suppression motion and, when it was denied, he participated in all aspects of the trial. Although Gunter claims he was in contact with Chamberlain during trial, he does not assert that he instructed Chamberlain not to participate on his behalf. 

At ¶ 37 

There is also nothing in the record that demonstrates Chamberlain was unprepared. He participated in jury selection; cross-examined witnesses, making objections during their testimony; participated in drafting the jury instructions; successfully moved for dismissal of one charge of aggravated sexual abuse of a child after the State rested its case-in-chief; and made a closing argument to the jury. Other than the general complaint that Chamberlain was unprepared and inexperienced, Gunter identifies no specific deficiencies in his trial performance. See State v. Classon, 935 P.2d 524, 532 (Utah Ct. App. 1997) (“[A] defendant must identify counsel’s specific acts or omissions that fall outside the wide range of professionally competent assistance.” (citation and internal quotation marks omitted)). Accordingly, Gunter has failed to identify how Chamberlain’s actions were deficient or how he was prejudiced by that deficient performance.See Kell v. State, 2008 UT 62, ¶ 27, 194 P.3d 913 (“[A] defendant alleging ineffective assistant of counsel must establish both that counsel’s  performance  was  deficient  and  that  the  deficient performance  prejudiced  the  defense.”  (citation  and  internal quotation marks omitted)).

At ¶ 38.  

  

CONCLUSION

We deny Gunter’s request for a rule 23B remand because Gunter has failed to articulate specific factual allegations that would demonstrate that he was prejudiced by counsel’s performance. Although the trial court erred in proceeding with trial in absentia without conducting an adequate inquiry into whether Gunter’s absence was voluntary, the error was harmless due to the trial court’s posttrial consideration of further evidence on that issue and its unchallenged finding that Gunter was voluntarily absent from trial. Gunter has failed to establish that either his pretrial counsel or trial counsel rendered ineffective assistance. 

At ¶ 39.    

Createrra v. Sundial, 2013 UT App 141, No. 20120049-CA (June 6, 2013)

ISSUE: Modification of Notice Requirements in Arbitration Proceedings

Judge Roth,

Createrra, Inc. appeals from the district court’s decision to deny Createrra’s motion to vacate an arbitration award in favor of Sundial, LC, on the basis that Createrra’s motion to vacate was untimely when it was filed more than ninety days after Createrra had received notice of the award. Createrra asserts that its motion to vacate was not untimely because the arbitrator’s decisions had not been served in accordance with the notice requirements of the parties’ operating agreement. Createrra also contends that the court wrongly concluded that the parties had orally modified the notice provision of the operating agreement. We affirm.

At ¶ 1.

. . . In the course of forming the LLC, the parties executed an operating agreement, in which they agreed to serve in writing “any notice, election, or communication” required by the agreement, with delivery either by hand or through certified mail with courtesy copies via email. . . .

At ¶ 2.

The first arbitration was held in fall 2009, and the arbitrator issued a written decision, in which he noted that “[a]t the conclusion of the hearing, the parties agreed to service of the arbitration decision via email.” Createrra did not challenge the accuracy of this statement, nor did it register any objection to the arbitrator’s delivery of his decision by email. The parties arbitrated two subsequent disputes. The arbitrator issued a decision on the second arbitration in December 2009. Because he believed that the parties had agreed to electronic service, the arbitrator delivered the decision only via email. Createrra did not object to the electronic delivery of the arbitrator’s second decision. On October 19, 2010, the arbitrator issued a final arbitration decision ordering dissolution of the LLC. This decision was also served only by email. It is undisputed that both parties received the email, and Createrra again voiced no objection to the use of email for this purpose. The notice of award was never served in accordance with the notice provision of the parties’ operating agreement. A supplemental arbitration decision which included an award to Sundial of $52,731 in attorney fees, was issued on November 3, 2010.  It too was emailed to the parties. Again, Createrra made no objection to the method of service.

At ¶ 3.

Ninety-one days after the arbitrator issued the supplemental decision on November 3, 2010, Createrra moved to vacate the arbitration decisions. The trial court, afterholding an evidentiary hearing ruled that Createrra had orally modified the notification requirements and agreed to service by email

At ¶¶  4-5.

For purposes of appeal, we accept Createrra’s position that the operating agreement required that notice of an arbitration award be served either by hand delivery or by certified mail with email copies to both the party and its attorney. Sundial asserts that “[t]he district court made a factual finding that Createrra agreed to receive arbitration awards via email” and that Createrra has not challenged that finding on appeal. Sundial contends that, as a result, even if notice of the arbitration award was required to be hand delivered or sent via certified mail and email under the operating agreement, Createrra orally modified that requirement when it verbally assented to receipt of the arbitration award through email. Createrra counters that its verbal agreement to accept notice by email was void because arbitration agreements cannot be orally modified. Thus, the crux of the inquiry on appeal is whether a term in an arbitration agreement governing how notice is to be served is subject to oral modification.

At ¶ 7.

The requirement that the scope of an arbitration agreement, including any modifications thereof, be in writing is a deviation from a widely-accepted principle of contract law. Ordinarily, “‘[p]arties to a written contract are free to modify that contract by oral or verbal agreement.’” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 13 n.4, 40 P.3d 1119 (quoting a jury instruction that the supreme court concluded “accords with Utah law”). This is true, “notwithstanding recitals in a prior contract restricting changes or modification in its terms.” Prince v. R.C. Tolman Constr. Co., 610 P.2d 1267, 1269 (Utah 1980); see also 2 Corbin on Contracts § 7.14 at 404 (1995) (“Apart from statute, the common law rule is that [e]ven where the contract specifically states that no non-written modification will be recognized, the parties may yet alter their agreement by parol negotiation.” (alteration in original) (citation and internal quotation marks omitted)). Rather, it is the parties’ intentions, not the form of the modification, that controls. See Central Fla. Invs., 2002 UT 3, ¶ 12. In other words, an oral modification to a contract may be enforceable so long as the modification reflects the parties’ intent.

At ¶ 12.

The legislature, however, deemed it appropriate to except arbitration agreements from the general rule because an agreement to arbitrate deprives a party of many of the protections of the judicial process. Arbitration is considered a “speedy and inexpensive method[] of adjudicating disputes,” compared to the traditional legal process, because it resolves disputes outside of the court system with little opportunity for judicial review. Pacific Dev., LC v. Orton, 2001 UT 36, ¶ 12, 23 P.3d 1035 (citation and internal quotation marks omitted). And because arbitration’s benefits come at a significant cost, the legislature has provided that the parties’ core understanding must be written out to ensure that the extent of their commitment to arbitration is clearly defined so that the parties and the court are informed of what disputes are the subject of binding arbitration and to make clear “that the parties are deliberately waiving their substantial rights to judicial review” of those issues. Id. ¶ 11. The same concerns do not seem to arise, however, with respect to the modification of a notice procedure where the arbitration act itself requires no more than that notice be provided “in ordinary course,” a concept the act describes in practical, rather than technical, terms. See Utah Code Ann. § 78B-11-103(1[-3]) . . .  There seems to be no reason, therefore, why the notice provisions of an arbitration agreement should not be governed by the ordinary principles applicable to modifications of written contracts, that is, “[p]arties to a written contract are free to modify that contract by oral or verbal agreement,” R.T. Nielson Co., 2002 UT 11, ¶ 13 n.4 (internal quotation marks omitted).

At ¶ 13.

Further, the terms of the operating agreement itself do not preclude the parties from modifying it [orally]. 

At ¶ 14.

Jensen v. Jensen, 2013 UT App 143, No. 20130317-CA (June 6, 2013)

ISSUE: Motion to Modify Child Support: preservation of issue for appeal, notice of appeal, Rule 59 motion for new trial

Before Judges Davis, Thorne, and Voros

Per Curiam,

Jared J. Jensen appeals from the trial court’s order granting Heather M. Jensen’s motion to modify child support, entered on February 25, 2013. This appeal is before the court on its own motion for summary disposition based on the lack of a substantial question for review. In his response to the motion, Mr. Jensen has failed to identify a substantial issue warranting further proceedings by this court.

At ¶ 1.

Mr. Jensen asserts that the trial court erred in granting the motion to modify child support. However, he did not oppose the motion in the trial court. He filed no timely response in the trial court and the order was entered by default. To preserve an issue for appeal, the issue must first be raised in the trial court in such a way that the trial court has an opportunity to rule on the issue. 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. By failing to respond to the motion, Mr. Jensen failed to give the trial court the opportunity to rule on any issue regarding the motion to modify. Accordingly, there is no issue  preserved for appeal regarding the order granting the motion to modify child support.

At ¶ 2..      

Mr.  Jensen  also  asserts  that  the  trial  court  abused  its discretion when it declined to consider his untimely response to the motion, which was filed eleven days after the order was entered. This issue is not properly before this court for two reasons. First, Mr. Jensen appealed the order granting the motion to modify child support entered on February 25, 2013. That is the only order identified in the notice of appeal. A notice of appeal must designate the order or judgment appealed. “This requirement is jurisdictional because the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case.” In re B.B., 2002 UT App 82, ¶ 9, 45 P.3d 527. The trial court’s memorandum decision and order denying Mr. Jensen’s postjudgment objection and his untimely notice to submit was entered on March 25, 2013, after the entry of the final appealable order, and is not identified as an order on appeal in the notice of appeal. Accordingly, the order is not within the scope of this appeal.

At ¶ 3 

Second, although Mr. Jensen asserts that the trial court should have sua sponte ordered a new trial pursuant to rule 59 of the Utah Rules of Civil Procedure after considering his response, such an action was barred under the time constraints of rule 59. A court may exercise its discretion under rule 59(d) only within ten days after the entry of the final judgment. Utah R. Civ. P. 59(d). Mr. Jensen did not file his response until March 8, and did not file his notice to submit until March 18. The time for the trial court to entertain a rule 59 motion had passed. Accordingly, the trial court had no discretion to consider ordering a new trial under rule 59. See id.

At ¶ 4.      

Mr. Jensen’s response to this court’s motion did not identify a substantial issue for review but rather argued that this court should consider the pending motion to set aside as a motion for new trial under rule 59. However, the motion was filed more than ten days after the entry of the final order, and thus is untimely as a rule 59 motion. See id. R. 59(b). Furthermore, it is the party’s obligation to identify whether and what type of relief may be available under the rules. Gillett v. Price, 2006 UT 24, ¶ 8, 135 P.3d 861.  “[T]he  rules  provide  the  source  of  available  relief.”  Id. “Accordingly, the form of a motion does matter because it directs the court and litigants to the specific, and available, relief sought.”

Id.

At ¶ 5.        .      

In sum, Mr. Jensen has failed to identify a substantial issue for review warranting further proceedings by this court. The trial court’s order granting the motion to modify child support is affirmed.

At ¶ 6.

Farmington City v. Wade Lake, 2013 UT App 144, No. 20130325-CA (June 6, 2013)

ISSUE: Constitutionality of Driver License Statute

Before Judges Orme, Roth, and Christiansen

Per Curiam:

Wade Lake appeals his conviction of driving without a valid driver license, an infraction, following a trial de novo in the district court on appeal from a conviction originating in the Davis County Justice Court. This case is before the court on a sua sponte motion for summary disposition.

At ¶ 1.  

When a case originates in a justice court, a defendant may appeal the judgment and conviction from the justice court and obtain a trial de novo in the district court. See Utah Code Ann. § 78A-7-118(1) . . .  Utah Code section 78A-7-118(8) states, “The decision of the district court [following a trial de novo] is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance.” Id. § 78A-7-118(8). By enacting section 78A-7-118(8), “the Utah Legislature . . . specifically and intentionally limited the issues that may be appealed from a district court’s judgment.” State v. Hinson, 966 P.2d 273, 276 (Utah Ct. App. 1998). Accordingly, “absent an issue regarding the constitutionality of a statute or ordinance, the decision of the district court is final and this court has no jurisdiction to hear an appeal thereof.” Id. at 277– 78. Our “appellate jurisdiction is limited to only those issues attacking the validity or constitutionality of an ordinance or statute.” Id. at 277.

At ¶ 2.            

Accordingly, while we have no jurisdiction over other claims Lake raised, we have jurisdiction to consider Lake’s argument that the right to travel upon public highways cannot be restricted by a state statute requiring a driver license.

At ¶ 3.

This argument has been repeatedly rejected and does not merit plenary consideration. . . . Lake’s challenge to the State’s constitutional authority to enact and enforce traffic laws is without merit. Even case law principally relied upon by Lake recognizes that the right to travel on public highways may be regulated by the state. See Thompson v. Smith, 154 S.E. 579, 583 (Va. 1930).

At ¶ 4.