August 27, 2013 Supreme Court Case Summaries

State v. Arriaga-Luna, 2013 UT 56, No. 20110718 (August 27, 2013)

ISSUE: Use of a Suspect’s Children as an Interrogation Technique; Voluntariness of Confession

The State appeals the district court’s grant of defendant Delfino Arriaga-Luna’s motion to suppress his confession to murder. The district court held that this confession was coerced because of the interrogating officers’ “invocation of Mr. Arriaga-Luna’s children as a method to get a confession.” We reverse.

At ¶ 1.

Mr. Arriaga-Luna moved the district court to suppress his confession on the grounds that it was coerced. In ruling on this motion, the court focused its analysis on three aspects of Mr. Arriaga-Luna’s interrogation: (1) the threat of a possible life sentence; (2) the use of the false-friend technique, and (3) references to Mr. Arriaga-Luna’s children. The district court rejected the defense arguments regarding the possible life sentence and the falsefriend technique. However, the district court granted the motion to suppress Mr. Arriaga-Luna’s confession based on “[t]he detectives’ invocation of Mr. Arriaga-Luna’s children as a method to get a confession.” The State appealed this ruling, and we have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

At ¶ 6.

The due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution protect individuals from being compelled to incriminate themselves. U.S. CONST. amends. V, XIV; Malloy v. Hogan, 378 U.S. 1, 6 (1964). The ultimate goal of analyzing whether a confession was coerced is to determine “whether, considering the totality of the circumstances, the free will of the witness was overborne.” United States v. Washington, 431 U.S. 181, 188 (1977).

At ¶ 9.

The totality of the circumstances includes “both the characteristics of the accused and the details of the interrogation.” State v. Rettenberger, 1999 UT 80, ¶ 14, 984 P.2d 1009 (internal quotation marks omitted). Details of the interrogation include external factors, such as “the duration of the interrogation, the persistence of the officers, police trickery, absence of family and counsel, and threats and promises made to the defendant by the officers.” Id. The subjective characteristics of the accused that may affect susceptibility to “more subtle forms of psychological persuasion” include “the defendant’s mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system.” Id. ¶ 15 (internal quotation marks omitted). Additionally, for a confession to be involuntary there must be a causal connection between the coercion and the confession. State v. Mabe, 864 P.2d 890, 894 (Utah 1993).

At ¶ 10.

Threats or promises render a confession involuntary if, in light of the totality of the circumstances, they overcome a defendant’s free will. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991) . . . For example, we have held that “an interrogation can be impermissibly coercive because [it] carried a threat of greater punishment or a promise for lesser punishment depending on whether [a defendant] confessed.” Rettenberger, 1999 UT 80, ¶ 29, 984 P.2d 1009 (alterations in original) (internal quotation marks omitted). Police may, however, give a suspect realistic estimates about probable sentences. State v. Montero, 2008 UT App 285, ¶ 14, 191 P.3d 828.

At ¶ 11.

In Lynumn v. Illinois, 372 U.S. 528, 534 (1963) and United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), the defendants’ confessions were held to have been coerced because the interrogating officers made threats regarding the defendants’ children. The police officers in Lynumn encircled a single mother and told her that she would not see her children again unless she admitted to being a drug dealer. 372 U.S. at 531–32. The officers also told Lynumn that her children’s government assistance would be withdrawn unless she confessed. Id. at 534. The U.S. Supreme Court held that the threats regarding Lynumn’s children, viewed in light of her lack of experience with criminal law and lack of counsel, overcame her free will and produced an involuntary confession. Id. at 534.

At ¶ 12.

Although we recognize that the intense loyalty and emotion present in most parent-child relationships does provide an opportunity for coercion, we do not adopt any per se rule regarding the effect of references to a defendant’s children on the voluntariness of a confession. The ultimate test in any case involving the voluntariness of a confession is whether the defendant’s will has been overcome under the totality of the circumstances.

At ¶ 14.

We recognize that implicit threats can constitute psychological coercion and overcome a defendant’s free will. However, here, the context of the detective’s statement clarifies that the statements were not implicit threats but rather factual communications that if Mr. Arriaga-Luna implicated his brother and his brother was found to be the sole murderer, Mr. Arriaga-Luna would not “be locked in prison for the rest of [his] life.” Similarly, if the killing were entirely accidental, Mr. Arriaga-Luna would likely be set free. We also note that Mr. Arriaga-Luna did not confess during this interview, which suggests that the officer’s statements did not overcome his free will.

At ¶ 17.

When defendants are concerned for the safety and welfare of their families, law enforcement can inform defendants of public and charitable resources. However, officers should limit themselves to factual statements and not imply that aid for defendants’ families is contingent on a confession. Here, Detective Hamideh strayed close to the line by making a personal offer to help Mr. Arriaga-Luna when he said “I can bring resources.” However, it is clear from the full transcript that the officer made the statement about resources in response to Mr. Arriaga-Luna’s inquiry about what would happen to his daughters, and not in exchange for a confession.

At ¶ 19.

. . . [T]he detective urged him to confess to earn the respect of his daughters.

Such appeals to a defendant’s sense of morality and responsibility are usually non-coercive. See United States v. Miller, . . .

. . . “pointing out such considerations— possibilities over which the police clearly exercise no control—[does not amount] to a threat or promise of the kind pertinent to our inquiry.” Id. Here, as in Prows, Detective Hamideh’s suggestion to Mr. Arriaga-Luna that his daughters would respect him if he told the truth does not constitute a threat or promise because Detective Hamideh was merely appealing to Mr. Arriaga-Luna’s sense of personal dignity and responsibility and speculating about how his daughters may feel about him in the future.

At ¶¶ 20-22.

The totality of the circumstances show that Mr. Arriaga-Luna’s free will was not overborne. Accordingly, the trial court erred in granting Mr. Arriaga-Luna’s motion to suppress his confession. We reverse and remand for further proceedings consistent with this opinion.

At ¶ ¶ 26.

August 22, 2013 Utah Court of Appeal Case Summaries

Washington Cnty. Sch. Dist. v. Labor Comm’n, 2013 UT App 205, No. 20110228-CA (August 22, 2013)

ISSUE: Medical Causation; Sufficiency of Evidence;

Per my new policy, I will not be summarizing this decision because it is a review of an agency decision.

Sweat v. Boeder, 2013 UT App 206, No. 20120397-CA (August 22, 2013)

ISSUE: Relation back of Amended Pleadings (Rule 15(c))

Judge Thorne,

Plaintiff Lou Anne Sweat appeals from the district court’s decision granting Defendants Jess Boeder (Father) and Schafer Boeder’s (Son) (collectively, the Boeders) motion to dismiss for failure to state a claim. We affirm.

At ¶ 1.

Sweat filed a complaint against Father on January 10, 2011, alleging that he was the driver who had crashed into the back of Sweat’s vehicle when it was stopped at a traffic light on January 12, 2007. On April 14, 2011, Sweat filed an amended complaint adding Son in the case caption as a defendant but again alleging that Father was the driver in the automobile accident. On October 27, 2011, the Boeders filed a motion to dismiss for failure to state a claim stating that Father was not the driver and that the four-year statute of limitations had expired as to Son, who was the actual driver of the vehicle. The district court granted the Boeders’ motion to dismiss.

At ¶ 2.

Generally, an amended pleading that adds new parties will not relate back to the original filing. Penrose v. Ross, 2003 UT App 157, ¶ 9, 71 P.3d 631. There are, however, two types of cases where relation back under rule 15(c) permits amended complaints with new parties: “misnomer” and “identity of interest” cases. Id. ¶ 11 (internal quotation marks omitted).

At ¶ 4.

“A misnomer is involved when the correct party was served so that the party before the Court is the one Plaintiff intended to sue, but the name or description of the party in the Complaint is deficient in some respect.” Tan v. Ohio Cas. Ins. Co., 2007 UT App 93, ¶ 12, 157 P.3d 367 (citation and internal quotation marks omitted). Additionally, courts will generally allow an amendment under rule 15 to correct technical defects in the naming or identification of a party “[i]f the body of the complaint correctly identifies the party, or if the proper person has actually been served with process.” Id. (citation and internal quotation marks omitted); see also Penrose, 2003 UT App 157, ¶¶ 12, 14.

At ¶ 6.

This is not the case presented here. Sweat neither identified Son in any capacity in the original complaint nor served Son until after the expiration of the statute of limitations. Father and Son are two distinct defendants, each identified in different documents provided to Sweat prior to the running of the statute of limitations. Because Son’s identity as the driver was ascertainable and Son was neither served nor identified in the original complaint, this case does not involve a technical mistake. The addition or substitution of Son as a defendant would amount to a substantial change and not merely a formality or technicality allowed under the relation back doctrine. Thus, this case does not involve a misnomer. Having so determined, we next consider whether Father and Son have an identity of interest permitting the amended complaint to relate back.

At ¶ 7.

“Parties have an identity of interest when the real parties in interest were sufficiently alerted to the proceedings, or were involved in them unofficially, from an early stage.” Sulzen v. Williams, 1999 UT App 76, ¶ 14, 977 P.2d 497 (citation and internal quotation marks omitted). To qualify as an identity of interest case, Sweat must establish that

(1) the amended pleading alleged only claims that arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading and (2) the added party had received (actual or constructive) notice that it would have been a proper party to the original pleading such that no prejudice would result from preventing the new

party from using a statute of limitations defense that otherwise would have been available.

Ottens v. McNeil, 2010 UT App 237, ¶ 43, 239 P.3d 308 (citation and internal quotation marks omitted). One of the ways to establish constructive notice is to prove “that the original and new party share ‘the same interest’ concerning the litigation, including their legal defenses and positions such that ‘notice of the action against one serves to provide notice of the action to the other.’” Id. ¶ 45 (quoting Penrose, 2003 UT App 157, ¶¶ 15–19). This method of proving constructive notice is known as the “Notice Transfer Test.” Id. (citation and internal quotation marks omitted).

At ¶ 8.

. . . As in Penrose, Father’s defense is that he was not negligent or liable because he was not the driver and Son’s affirmative defense focuses on the running of the statute of limitations. The legal position and defenses of the two parties are not the same and a disposition of either party does not affect the claims or defenses available to the other. See id. ¶ 19. Because the parties do not have the same legal interest there is no identity of interest. See id.

At ¶ 9.

Since this case does not involve either a misnomer or an identity of interest, we conclude that the district court correctly declined to permit Sweat’s amended complaint to relate back to the original complaint and therefore properly dismissed the case against Son based on the running of the statute of limitations. Affirmed.

At ¶ 10.

Stepsaver v. Department of Workforce Services, 2013 UT App 207, No. 20120149-CA (August 22, 2013)

ISSUE: Sufficiency of Evidence; Hearsay

Per my new policy, I will not be summarizing this decision because it is a review of an agency decision.

Howard v. Manes, 2013 UT App 208, No. 20120070-CA (August 22, 2013)

ISSUE: Oral Express Trusts in Property; Dying Declarations; Unjust Enrichment

Judge Roth,

Plaintiff Angeline Howard (Angie), in her capacity as the personal representative of the estate of her mother, Thelma Manes Kolendrianos (the estate), appeals the district court’s decision to grant summary judgment to Thelma’s brother, Defendant Spyros Manes (Sam). We affirm.

At ¶ 1.

Oral Express Trusts

“Oral express trusts have certain fundamental characteristics in common with traditional trusts because, like traditional trusts, they are the manifestation of a settlor’s intent with regard to property.” Id. ¶ 26 (citation and internal quotation marks omitted). The main characteristic they share is “the imposition of obligations on a trustee to act for the benefit of [beneficiaries] as to matters within the scope of the [trust].” Id. (alterations in original) (citation and internal quotation marks omitted). “Like trusts created by a valid writing, constructive trusts imposed to give effect to oral express trusts” can be characterized as creating “a fiduciary relationship with respect to property, arising as a result of a manifestation of an intention to create it and subjecting the person in whom the title is vested to equitable duties to deal with it for the benefit of others.” Id. (citation and internal quotation marks omitted).

At ¶ 12.

Nevertheless, even “[w]here the transfer of land was made with the intent to create such a trust, the trust will generally fail unless evidenced by a writing that complies with the Statute of Frauds.” Id. ¶ 27. “Because oral express trusts do not meet these requirements, they will only be given effect in certain circumstances.” Id. (citation and internal quotation marks omitted). And if the circumstances are found, “the constructive trusts are deemed to arise[] by operation of law and are not within the statute of frauds.” Id. (alteration in original) (citation and internal quotation marks omitted). In this regard, our supreme court has adopted section 45 of the Restatement (Second) of Trusts, which applies when the transferor of land intends for the transfer to benefit someone other than the transferor or the transferee: 

“(1) Where the owner of an interest in land transfers it inter vivos to another in trust for a third person, but no memorandum properly evidencing the intention to create a trust is signed, as required by the Statute of Frauds, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the third person, if, but

only if (a) the transferee by fraud, duress or undue influence prevented the transferor from creating an enforceable interest in the third person, or (b) the transferee at the time of the transfer was in a confidential relation to the transferor, or (c) the transfer was made by the transferor in anticipation of death.”

Id. ¶ 28 (emphasis added) (quoting Restatement (Second) of Trusts § 45(1) (1959)). “In short, the imposition of a constructive trust [by way of an oral express trust] under this section of the Restatement . . . requires proof that the transferor of land intended to create a trust and that” other circumstances exist, such as the existence of a confidential relationship between the transferee and transferor at the time of the transfer. Id. “And where proving this intent will be contrary to an otherwise valid deed, the evidence of the trust must be clear and convincing.” Id.

At ¶ 13.

The trust argues that Thelma’s statements made preceding her death are probative of a confidential relationship between her and Sam, thus, raising a material question of fact concerning the elements of enforcing an Oral Express Trust.  The trial court ruled the evidence was inadmissible hearsay.

At ¶ 14.

One exception to the hearsay rule allows the admission of statements made under belief of impending death. Id. R. 804(b)(2). Specifically, rule 804(b)(2) provides that “a statement made by the declarant while believing the declarant’s death to be imminent” is “not excluded by the rule against hearsay.” Id. R. 804(b)(2). That belief need not approach “absolute knowledge” of impending death but “must be more than a mere possibility or probability of death.” State v. St. Clair, 282 P.2d 323, 325–26 (Utah 1955). The test is “whether the declarant at the time of the declaration so fully expected to die from an existing affliction that he [or she] had in fact abandoned all hope of recovery.” Id. at 326. We review a district court’s ruling on admissibility of evidence for abuse of discretion. Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 10, 94 P.3d 193; McKelvey v. Hamilton, 2009 UT App 126, ¶¶ 16–18, 211 P.3d 390.

At ¶ 15.

The Court reviews the evidence related to the context of Thelma’s statements and determines that because the evidence does not support a determination that Thelma “so fully expected to die from an existing affliction that [she] had in fact abandoned all hope of recovery,” St. Clair, 282 P.2d at 326, we conclude that the district court acted within its discretion in ruling that Thelma’s statements are inadmissible hearsay and not subject to the dying declaration exception.

At ¶ 17.

Because Thelma’s statements are inadmissible, the estate is left to rely on Sam’s statements, the parties’ conduct, and the deeds to establish a question of material fact about the existence of an oral trust. On appeal, the estate argues that Sam’s statements and the improvements Thelma made to Parcel 136 are sufficient to create such a fact question as to whether Yia Yia, Thelma, and Sam intended to create a trust. However, we need not decide whether that evidence would be sufficient to survive summary judgment, because without Thelma’s statements, the estate has failed to provide sufficient evidence of the existence of a confidential relationship to take the claimed oral trust outside the constraints of the statute of frauds.

At ¶ 18.

In granting summary judgment, the district court concluded that “[t]he familial relationship among Yia Yia, Thelma . . . , and Sam . . . , by itself, is insufficient to establish a confidential relationship at the times of the conveyances of Parcel 136” and that the estate “has not presented any additional competent evidence regarding a confidential relationship.” On appeal, the estate argues that the district court erred in reaching that conclusion. In particular, the estate argues that “a confidential relation is (i) presumed as to [Sam’s] mother; (ii) similarly presumed as to his nieces and nephews—Thelma’s children—as beneficiaries of the oral trust; and (iii) at a bare minimum, a question of fact for the jury.” We conclude that the estate has failed to demonstrate an issue of fact on this question; Sam’s familial relationships are inadequate by themselves to show a confidential relationship, and the estate has not alleged enough additional facts to survive summary judgment.

At ¶ 20.

[T]he requisite confidential relationship cannot be based on a trustee–beneficiary relationship between Sam and the grandchildren. If it were otherwise, every oral trust would be excepted from the statute of frauds because of the resulting confidential relationship of trustee and beneficiary, and the other factors addressed by section 45 of the Restatement (Second) of Trusts would be superfluous.

At ¶ 21.

“[Although] kinship may be a factor in determining the existence of a legally significant confidential relationship, there must be a showing, in addition to the kinship, [of] a reposal of confidence by one party and the resulting superiority and influence on the

other party . . . . Mere confidence in one person by another is not sufficient alone to constitute such a relationship.”

[In re Estate of Ioupe, 878 P.2d 1168, 1174 (Utah Ct. App. 1994)] (alteration and  mission in original) (quoting In re Estate of Jones, 759 P.2d at 347–48). Accordingly, the district court correctly concluded that “[t]he familial relationship . . . , by itself, is insufficient to establish a confidential relationship.”

At ¶ 24.

Unjust Enrichment

“As with claims based on an oral express trust, claims of unjust enrichment can support the imposition of a constructive trust.” Rawlings v. Rawlings, 2010 UT 52, ¶ 29, 240 P.3d 754. In particular, “‘a constructive trust may arise where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.’” Id. (quoting Parks v. Zions First Nat’l Bank, 673 P.2d 590, 599 (Utah 1983)). An unjust enrichment claim has three elements: “(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” Id. (citation and internal quotation marks omitted).

At ¶ 30.

The estate’s unjust enrichment claim cannot survive summary judgment because it has not demonstrated an issue of material fact regarding the third element, inequitable circumstances. In discussing what constitutes inequitable circumstances in the context of an unjust enrichment claim, Utah courts have recognized that “an owner cannot retain a benefit which knowingly he has permitted another to confer upon him by mistake.” Id. ¶ 49 (citation and internal quotation marks omitted); accord Jeffs v. Stubbs, 970 P.2d 1234, 1247 (Utah 1998). By contrast, one who receives “[m]oney or benefits that have been officiously or gratuitously furnished” has no obligation to disgorge them. Hess v. Johnston, 2007 UT App 213, ¶ 21, 163 P.3d 747 (citation and internal quotation marks omitted).

At ¶ 31.

[T]he facts it identifies to show inequitable circumstances are legally insufficient. First, although Thelma’s discussions with Angie and Jeannie in 1999 about the oral trust might imply that Sam intentionally benefitted from the estate’s mistaken belief that an oral trust existed, we have already held that these statements are inadmissible hearsay. See supra ¶¶ 15–17. Second, Sam’s statements after Thelma’s death in 2001 might create a disputed issue of fact as to whether Sam entered into an oral agreement with Thelma or exploited her children’s belief that such an agreement existed. But the estate has provided no evidence that any of these statements predated the estate’s efforts to improve Parcel 136. According to the estate, Thelma obtained financing to construct the barn in about 1999, and her family built the other improvements during the same general time frame before Thelma’s death. The earliest admissible statement that the estate identifies to show Sam allowed the estate to “confer [a benefit] upon him by mistake,” see Rawlings, 2010 UT 52, ¶ 49 (citation and internal quotation marks omitted), occurred “[f]ollowing Thelma’s death” in “two discussions with Sam [and Jeannie]” after the improvements were already built. Thus, unlike the plaintiffs in either Jeffs or Rawlings, who improved or transferred property in reliance on misleading statements and omissions, the estate cannot argue that Sam’s statements encouraged Thelma and her children to build improvements on Parcel 136 under a mistaken belief that an oral trust existed, because the only statements on which the estate relies occurred after the improvements were made.

At ¶ 33.

Nor can the estate show that Thelma built the improvements with any “expectation of a return benefit, compensation, or consideration.” See Hess, 2007 UT App 213, ¶ 21 (citation and internal quotation marks omitted). Utah courts have rejected unjust enrichment claims where benefits are “officiously or gratuitously furnished” with no expectation of compensation. Jeffs, 970 P.2d at 1248 (citation and internal quotation marks omitted); Hess, 2007 UT App 213, ¶ 21. All of the improvements that the estate identifies were constructed during Thelma’s joint tenancy with Yia Yia and Sam. As a joint tenant of Parcel 136, Thelma held “a concurrent ownership . . . with a right of survivorship, i.e., . . . the eventuality of a full ownership interest, conditioned upon the tenancy remaining unsevered, and [Thelma] out‐living the other” joint tenants. See Shiba v. Shiba, 2008 UT 33, ¶ 17, 186 P.3d 329 (emphasis, citation, and internal quotation marks omitted). Under Utah law, one joint tenant generally has no obligation to compensate the other for ordinary repairs or improvements to the property, see David A. Thomas & James H. Backman, Utah Real Property Law § 2.03(a)(3)(iii) (LexisNexis 2010), and the estate has not alleged any admissible facts that show Sam’s conduct led Thelma to expect otherwise, see Hess, 2007 UT App 213, ¶ 21. As a result, Thelma appears to have constructed the improvements under circumstances that do not support an inference that she expected any compensation from Sam for her efforts.

At ¶ 34.

The estate therefore fails to create an issue of material fact regarding whether it would be inequitable for Sam to retain any benefit Thelma may have conferred on him. Accordingly, we are not persuaded that the district court erred in concluding that the estate failed to demonstrate the existence of a genuine issue of material fact as to whether Sam has been unjustly enriched by the transfer of Parcel 136.

At ¶ 35.

Dennett v. Ferber, 2013 UT App 209, No. 20120413-CA (August 22, 2013)

ISSUE: Appeal of Rule 60(b) Motions; Purpose of Rule 60(b)

Per Curaim.

A ruling on a rule 60(b) motion culminates in a separate, appealable order and, thus, may not be included in an existing appeal because the issues raised in the appeal predated the ruling on the rule 60(b) motion. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989). Accordingly, this court lacks jurisdiction to resolve issues raised in a ruling on a rule 60(b) motion unless a new notice of appeal has been filed. See Utah R. App. P. 4(a) (requiring a notice of appeal to be filed within thirty days of a final, appealable order). Here, Wakara should have filed a new notice of appeal after the district court issued its order on the rule 60(b) motion and then sought consolidation of its newly opened appeal with this pre-existing appeal. However, Wakara adequately evidenced an intent to appeal those issues by filing an amended notice of appeal, which was timely filed after entry of the order. Accordingly, we have jurisdiction to resolve the issues raised by Wakara from the order on the rule 60(b) motion. For the convenience of the parties and the court, we then consolidated the issues raised in the appeal of the rule 60(b) order into this preexisting appeal.

At ¶ 3.

However, we do not have jurisdiction over those same issues raised by Dennett because Dennett did not file a notice of appeal, or even an amended notice of appeal, after entry of the order resolving the rule 60(b) motion. Accordingly, this court lacks jurisdiction to resolve any issues raised by Dennett concerning the rule 60(b) motion. See Amica Mut. Ins., 768 P.2d at 970. Thus, we have jurisdiction over only the two issues Dennett raises in his timely appeal from the district court’s April 17, 2012 order denying a post-judgment motion to dismiss and granting a motion for sanctions.

At ¶ 4

The Court refuses to address the Appellant’s complaints about filing requirements enforced by the District Court because the issue was not adequately briefed.

At ¶ 5.

The Court refuses to address the argument that the trial court interfered with their right to appeal by making an incorrect statement regarding the time to file an appeal because the issue was not adequately briefed.

At ¶ 6.

The Court refuses to address issued raised by Wakara on Dennet’s behalf.

At ¶ 7.

“The remedies provided by rule 60(b) should not be understood to be ‘a substitute for appeal.’ Subsection (6), particularly, ‘should be very cautiously and sparingly invoked by

the court only in unusual and exceptional circumstances.’” Kell v. State, 2012 UT 25, ¶ 18, 285 P.3d 1133 (citations omitted). Furthermore,

“an appeal or motion for new trial, rather than a [Rule] 60(b) motion, is the proper avenue to redress mistakes of law committed by the trial judge, as distinguished from clerical mistakes caused by inadvertence, especially where the [Rule] 60(b) motion is filed after the time for appeal has expired. . . . The policy behind such a reading of [Rule] 60(b) is clear; parties should not be allowed to escape the consequences of their failure to file a timely appeal by addressing questions of law to the trial court for reconsideration. That is the function of appellate courts. If allowed to raise the same questions in a [Rule] 60(b) motion that would have been raised in an appeal from the merits, a party would be able to effect an indirect extension of the time for appeal by appealing the [Rule] 60(b) motion within thirty days of its disposition.”

Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 21, 2 P.3d 451 (alterations in original) (quoting Parke–Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989)).

At ¶ 9.

Wakara fails to demonstrate that the district court abused its discretion in denying Wakara’s motion for relief from the judgment under rule 60(b)(6). It has not explained why the alleged legal errors raised were not raised in a direct appeal. Instead, Wakara merely argues why the district court’s original decisions were incorrect. Thus, Wakara was attempting to escape its previous failure to file a direct appeal after entry of the original judgment in 2011. Because this is not the function of rule 60(b), the district court did not abuse its discretion in denying the motion. See id.

At ¶ 10.

August 16, 2013, Utah Supreme Court Case Summaries

Turner v. U of U Hospitals, 2013 UT 52, No. 20120120 (August 16, 2013)

ISSUE: Alternative Medical Treatments Instruction; and Rejection of the “Cure or Waive” Rule Pertaining to Peremptory Challenges

Justice Durrant,

In 2002, Ella Turner was severely injured in an automobile accident. She received treatment for her injuries at the University Hospital (Hospital), where she claims she was rendered a paraplegic due to the Hospital’s negligence. At trial, the jury found unanimously that the Hospital was not negligent. Ms. Turner appealed to the court of appeals, which upheld the jury’s verdict. Ms. Turner then petitioned for certiorari, which we granted.

At ¶ 1.

The Court outlines the background of this case. Specifically, (1) Planitiff’s injury to her spine, (2) the suspicion that some jurors were biased, (3) the trial judge’s refusal to dismiss them for cause, (4) Plaintiff’s attorneys choice to use two of her three peremptory challenges on jurors challenged for cause, and a third on a juror she suspected harbored hidden bias; (5) the result of two juror on the panel that she suspected were biased; (6) the evidence at trial, and (7) the trial judge’s jury instruction regarding alternative approved treatment methods of medical care.

At ¶¶ 4-12.

Alternative Treatment Methods Instruction

We first address Ms. Turner’s argument that she is entitled to a new trial because the district court erroneously issued Instruction No. 30. Specifically, Ms. Turner argues that this instruction was unwarranted and prejudicial because there was no evidence presented at trial of an “alternative treatment method.”  She also argues that the court of appeals misapplied our decision in Butler v. Naylor to the facts of this case. For the reasons stated below, we agree and remand this case to the district court for a new trial.

At ¶ 14.

Butler is distinguishable from the facts of this case because, unlike Butler and the subsequent cases applying it, here there was only one claim asserted, a claim for medical malpractice, and Instruction No. 30 expressly stated that “it is not medical malpractice for a provider to select one of the approved methods . . . [w]hen there is more than one method of treatment.” (Emphasis added.) Be-cause we believe that jurors take jury instructions seriously, we are troubled by the fact that this Instruction explicitly directs the jury to return a “no negligence” verdict if it finds that there was “more than one method of treatment.” Given the way this Instruction is worded, therefore, it is reasonable to assume that the jury would have ad-dressed the issue of alternative treatment plans first, rather than going straight to the issue articulated by Instruction No. 27, as the court of appeals assumed.24 And because Ms. Turner advanced only one theory for recovery, namely medical malpractice, our confidence in the jury’s verdict is undermined because Instruction No. 30 expressly forecloses the avenue of recovery set forth in Instruction No. 27 if the jury found that there were alternative, approved methods of treatment. Thus, we agree with Ms. Turner that the court of appeals’ reliance on Butler in this case is misplaced.

At ¶ 22.

We also note that even if the court of appeals was correct in assuming that the jury could have relied on the theory presented in Instruction No. 27 to support its verdict, Instruction No. 30 was still erroneous because there was no evidence supporting the existence of an alternative, approved treatment method. The Hospital argues that the evidence regarding the placing of a sign was sufficient to support this instruction, asserting that “the trial testimony established two potential treatment methods. The first method is to post a sign . . . [while] [t]he second method is not to post a sign and rely on shift re-ports and the patient’s medical records to pass information regarding spine precautions.”

At ¶ 23.

We are not persuaded by this argument. While it is true that the evidence regarding the procedure of posting a sign on the patient’s bed was conflicting, in our view this is not sufficient to sup-port the conclusion that posting a sign is a “method of treatment.” As the Hospital admits, when Ms. Turner was admitted her doctors had to choose between three “treatment options”: surgery, a back brace, or bed rest under spinal precautions. These sorts of options are what is contemplated by the term “method of treatment,” as would the procedures involved for a patient under spinal precautions (e.g., the log rolling procedure). Signs and shift reports, however, are not “methods of treatment,” but means of carrying out the method selected by the doctor, which, in this case, was bed rest under spinal precautions. We conclude that the decision of whether or not to post a sign does not qualify as a “method of treatment” and that, therefore, there was no evidence that supported the inclusion of Instruction No. 30. The potential confusion created by this mislabeling is significant in that this instruction could have led the jury to erroneously conclude that if it was acceptable to either post or not post a sign, they should find no medical negligence. Accordingly, we hold that the district court erred in giving Instruction No. 30 and that Ms. Turner is entitled to a new trial due to its prejudicial nature.

At ¶ 24.

“Cure or Waive” Rule Rejected

Because Ms. Turner is entitled to a new trial due to the erroneous inclusion of Instruction No. 30, we take this opportunity to clarify for the litigants and the district court the applicable standard for preserving an argument based on jury bias for appeal. In this case, the court of appeals applied the cure-or-waive rule and concluded that Ms. Turner had failed to preserve the issue of jury bias for appeal. Ms. Turner argues that the application of the cure-or-waive rule to the facts of this case yielded an unfair result. We agree. Accordingly, we abandon the cure-or-waive rule in favor of the standard articulated below and remand this case to the district court for further proceedings consistent with this opinion.

At ¶ 25.

In addition to the shaky foundations of this rule, we are also concerned about the results its application yielded in this case. While we agree with the observation made in Baker that the right to peremptory challenges is not constitutional, we disagree with the reasoning in Baker that places the burden on the defendant to utilize these challenges in order to correct what could be perceived as judicial error. While it is true that “[b]oth parties and the court share a duty to help ensure a fair trial - a trial in which a jury impartially weighs the evidence,” it is nevertheless a reality that both parties view their peremptory challenges as a tactical tool and desire to use them accordingly. This reality is illustrated clearly in this case, where Ms. Turner had to determine whether to expend her peremptory challenges on jurors whom she had already challenged for cause, or on a juror whom she suspected of harboring hidden biases. She chose the latter option, and consequently the previously challenged jurors were seated on the jury. Thus, under the cure-or-waive rule, Ms. Turner was prevented from raising the issue of jury bias on appeal because the rule required her to expend that final peremptory challenge on one of the other two jurors who had been challenged for cause.

At ¶ 27.

This result strikes us as unduly harsh to the appellant. Furthermore, it seems to us that, in the end, this issue boils down to a pure policy determination. On the one hand, there is the constitutional right to a fair trial, while on the other is the fact that peremptory challenges are merely a means to ensure that end. The question, therefore, is whether attorneys should be allowed to use peremptory challenges on jurors whom they would otherwise be unable to challenge for cause without thereby losing the ability to raise the issue of jury bias on appeal. In Baker, we expressed the concern that “if a defendant needs to show only that he used all of his peremptories and that a biased juror sat . . . there is a great temptation to sow error.”  That is, “[a] defendant whose for-cause challenge is erroneously denied by the trial court could always generate reversible error merely by expending all of his peremptories on other jurors, adverse or not.”

At ¶ 28.

We find this reasoning unpersuasive and insufficient to justify continued adherence to the cure-or-waive rule for several reasons. First, it is simply not the case under the rule articulated below that a party could “create reversible error” merely by expending all of their peremptory challenges on jurors other than those who were previously challenged for cause. Under the rule we adopt today, such a course of action would merely preserve the issue of jury bias for appeal. It would not automatically create reversible error, however, since the party would still have to demonstrate that (a) a juror who was previously challenged for cause sat on the jury, and (b) that juror was, in fact, biased. Only then would an appellate court be justified in reversing based on jury bias.

At ¶ 29.

Second, the concerns expressed in Baker ignore the fact that there are cases where attorneys have good reason to suspect bias, but lack sufficient grounds to challenge those jurors for cause. In such a situation, the attorney should be allowed to use a peremptory challenge on that juror without losing the ability to raise the issue of jury bias on appeal. And this case is a perfect illustration of such a situation. . . .

At ¶ 30.

Accordingly, we reject the cure-or-waive rule and adopt the rule stated in People v. Hopt in its stead.  In that case, a defendant had peremptory challenges available but failed to use them to dismiss a previously challenged juror. When the defendant then attempted to argue jury bias on appeal, we held that “[u]ntil [the defendant] had exhausted his peremptory challenges, he could not complain” about possible jury bias.

At ¶ 31.

We conclude that this rule strikes the right balance between the competing interests mentioned above. On the one hand, it re-quires that the parties utilize all available peremptory challenges be-fore the issue of jury bias can be raised on appeal, thereby encouraging them to use their challenges in order to achieve the goal of a fair trial. But as opposed to the cure-or-waive rule, it does not require the parties to use those challenges in a particular way, thus leaving the door open to their tactical use. That is, parties need not use all of their challenges on jurors who were previously challenged for cause in order to preserve the issue of jury bias for appeal. Rather, as long as (a) all of the party’s peremptory challenges were used and (b) a juror who was previously challenged for cause ends up being seated on the jury, the issue of jury bias has been preserved, which is precisely what has occurred in this case. . . .

At ¶ 32.

Nelson v. City of Orem, 2013 UT 53, No. 20120626 (August 16, 2013)

ISSUE: Employment Termination; Abuse of Discretion

Per my new policy, I will not summarize this case, because it focuses of an abuse of discretion standard related to an agency decision.

Delta v. Vincent, 2013 UT 54, No. 20120470 (August 16, 2013)

ISSUE: Forfeiture and Abandonment of Water Rights

Justice Durham,

Appellants Delta Canal Company, Melville Irrigation Company, Abraham Irrigation Company, Deseret Irrigation Company, and Central Utah Water Company (collectively, Irrigation Companies) and Appellee Frank Vincent Family Ranch, LC (Vincent) are water-rights holders on the Sevier River system. The Irrigation Companies claim that Vincent’s water right has been partially forfeited and partially abandoned. The district court granted summary judgment to Vincent. We reverse and remand.

At ¶ 1.

The district court held that Utah law did not provide for partial forfeiture or partial abandonment before 2002, and that Vincent was protected from partial forfeiture and partial abandonment after 2002 by an exception located in Utah Code section 73-1-4(3)(f)(i) (subsequent to 2002 amendments). See 2002 Utah Laws 120. This exception stated that “[t]he provisions of this section shall not apply . . . to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought.” The court held that because Vincent did not receive an uninterrupted flow of twenty-two cubic feet of water per second during any years between 2002 and the filing of the complaint, the Irrigation Companies were “precluded from claiming either a partial forfeiture, or a partial abandonment.” The court granted summary judgment to Vincent, and the Irrigation Companies appealed.

At ¶ 9.

Availability of Partial Forfeiture pre-2002

The parties dispute whether partial forfeiture was available in Utah before 2002. Vincent argues that it was not available, relying in part on Eskelsen v. Town of Perry, 819 P.2d 770, 775 n.9 (Utah 1991), where we stated in dicta that “[t]he question of partial forfeiture is not addressed in our statutes and has never been directly before this court. . . .” But closer investigation of our case law reveals that this court has always assumed that partial forfeiture was an available remedy.

At ¶ 12.

The court reviews pre-2002 case law to illustrate the availability of partial forfeiture prior to 2002.

At ¶¶ 13-15.

The court engages in statutory analysis of the pre-2002 forfeiture statute, determines that in isolation it is ambiguous, but that in conjunction with other statutes it becomes clear that partial forfeiture was available.

At ¶¶ 16-18.

The Court describes and evaluates the “beneficial use” doctrine in Utah water law

At ¶¶ 19-25.

Vincent would have us hold that under the Forfeiture Statute, a water right can be fully maintained through partial use. This rule would be inconsistent with the concept of beneficial use. See Hagerman, 947 P.2d at 407–08 (holding that the statutory interpretation advanced by the party opposing partial forfeiture would be inconsistent with the beneficial use policies underlying Idaho’s forfeiture statute). As we explained in Eskelsen, the policy underlying Utah water law is to prevent the state’s water from being “allowed to run to waste or go without being applied to a beneficial use for any great number of years.” 819 P.2d at 775–76 (internal quotation marks omitted). This policy “would be furthered by, and hindered without, partial forfeiture.” Id. at 775 n.9. Vincent’s rule would effect the opposite result: appropriators would be able to maintain their entire water rights while wasting or otherwise failing to beneficially use material amounts of that water.

At ¶ 26

Under the principle that we interpret statutes in harmony with neighboring provisions, Harker, 2010 UT 56, ¶ 12, we interpret the Beneficial Use Statute and the Forfeiture Statute in harmony with one another. If beneficial use is to be “the basis, the measure and the limit” of water rights in Utah, as required by the Beneficial Use Statute, then partial forfeiture must be available. We agree with all the other western state courts that have addressed this question and found that forfeiture and partial forfeiture are inherent in the very concept of beneficial use. . . .

At ¶ 27.

We hold that the only plausible reading of the Forfeiture Statute, when viewed in conjunction with the Beneficial Use Statute, is that a water right may be forfeited either in whole or in part. Under pre-2002 versions of the Forfeiture Statute, a water right has been partially forfeited if, during the statutory period, the appropriator “failed to use material amounts of available water” without securing an extension of time from the state engineer. Rocky Ford, 135 P.2d at 112; UTAH CODE § 73-1-4(1)(a) (prior to 2002 amendments) (permitting an appropriator to file for an extension of time). Accordingly, we reverse the district court’s grant of summary judgment as to the pre-2002 partial forfeiture claim and remand for the claim to be reconsidered in a manner consistent with this opinion.

At ¶ 28.

Post 2002 Forfeiture Exception

The Irrigation Companies also appeal the district court’s interpretation of the following exemption in the post-2002 Forfeiture Statute: “The provisions of this section shall not apply . . . to those periods of time when a surface water source fails to yield sufficient water to satisfy the water right, or when groundwater is not available because of a sustained drought.” UTAH CODE § 73-1-4(3)(f)(i) (2002). The district court interpreted this exemption to mean that no forfeiture of any amount can occur during periods when a water right is not fully satisfied. Although this interpretation is reasonable when the text of the exemption is viewed in isolation, it is unreasonable when the exemption is viewed in conjunction with the Beneficial Use Statute.

At ¶ 29.

Under the district court’s interpretation of the exemption, a small deficit in available water could protect a water right from forfeiture even if most of the water were actually available but not put to beneficial use. This result is inconsistent with the Beneficial Use Statute, under which the continuing validity of a water right depends on its being used. See supra ¶¶ 19–25. Thus, we reject the district court’s interpretation and hold that this exemption is a codification the common-law physical-causes exception we applied in Rocky Ford.

At ¶ 30.

. . . Even during a shortage, if an appropriator fails to beneficially use material amounts of available water, the amount of available but unused water may be forfeited. The district court’s contrary view would create a safe harbor for waste and non-use during times of shortage, which is precisely when efficiency and conservation are most imperative. We therefore reverse the grant of summary judgment as to the post-2002 partial-forfeiture claim and remand for the claim to be reconsidered in a manner consistent with this opinion.

At ¶ 32.

Common Law Nature of Abandonmnet Action

The Irrigation Companies also allege that Vincent abandoned part of its water right. The district court treated the abandonment claim as a claim under the Forfeiture Statute, which states that forfeiture occurs when an appropriator “abandons or ceases to use” a water right. UTAH CODE § 73-1-4(3)(a) (2002) (emphasis added.) The district court granted Vincent summary judgment on the abandonment claim based on Utah Code section 73- 1-4(3)(f)(i) (subsequent to 2002 amendments)—the exemption that we hold to be a codification of the physical-causes exception. See supra ¶ 30. Summary judgment on that basis was improper for two reasons. First, the district court erred in interpreting this exemption. See supra ¶¶ 29–32. Second, abandonment of a water right is not a statutory claim. Although a form of the word “abandon” has been present in the Forfeiture Statute since it was originally promulgated in 1903, our jurisprudence has treated abandonment as a commonlaw claim, independent of the Forfeiture Statute.

At ¶ 33.

In 1943, we observed,

Abandonment is a separate and distinct concept from that of forfeiture. . . . While upon the one hand, abandonment is the relinquishment of the right by the owner with the intention to forsake and desert it, forfeiture upon the other hand, is the involuntary or forced loss of the right, caused by the failure of the appropriator or owner to do or perform some act required by the statute.

Wellsville E. Field Irrigation Co. v. Lindsay Land & Livestock Co., 137 P.2d 634, 643 (Utah 1943) (internal quotation marks omitted). A few years later, we addressed the presence of the term “abandon” in the Forfeiture Statute:

Although the statute uses the term “abandon or cease to use water for a period of five years,” we have recognized that abandonment is a separate and distinct concept from that of forfeiture in that an abandonment requires a definite intent to relinquish the right to use and ownership of such water right and does not require any particular period of time, but the forfeiture herein provided for requires that the appropriator cease to use the water for a period of five years before it is complete. . . . The abandonment of a water right to the public the same as the abandonment of any other property or right requires that a prior appropriator intentionally release or surrender such right to the public. To thus lose a water right does not necessarily depend on this statute nor require nonuse of such right for any particular length of time.

Rich County-Otter Creek Irrigation Co. v. Lamborn, 361 P.2d 407, 409 (Utah 1961) (footnote omitted). We see no reason to depart from this long-standing precedent.

At ¶ 34.

We reverse the grant of summary judgment on the abandonment claim and remand for the claim to be considered under our common-law precedents. Unlike forfeiture, abandonment has no time element. Instead, it has an intent requirement. To succeed in this claim, the Irrigation Companies must show that Vincent or its predecessor intentionally relinquished a portion of the water right. See id.

At ¶ 35.

The court determines the proper measure of Vincent’s water rights.

At ¶¶ 36-38.

Forfeiture occurs when an appropriator fails to use material amounts of a water allowance during five or seven consecutive years10 without securing an extension of time from the state engineer. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 135 P.2d 108, 112 (Utah 1943); UTAH CODE § 73-1-4(2)(a). Because most flow allowances are not “continuous awards,” supra ¶ 37, appropriators do not forfeit any part of their right by failing to divert water at the maximum flow allowance. A forfeiture analysis should instead focus on volume. If during five consecutive irrigation seasons, an appropriator has failed to use material amounts of its volume allowance, a forfeiture has occurred. The volume component of the water right should be reduced by the unused amount. The flow component may be reduced in proportion to the volume reduction, at the district court’s discretion.

At ¶ 39.

We cannot expect farmers to predict the weather with more certainty than climatologists, and the materiality exemption protects them when they fail to do so. The materiality exemption also serves to deter forfeiture claims premised on de minimis nonuse.

At ¶ 40.

Finally, the number of acres irrigated is not determinative in a forfeiture analysis, though it may be relevant insofar as it indicates whether water usage is beneficial. Farmers may reduce the total acres irrigated to grow a more water-intensive crop, or vice versa, so long as they beneficially use their full entitlement. The number of acres irrigated need not match the number listed on a proposed determination or a final decree from a general adjudication.11 The central question in any forfeiture proceeding is whether the appropriator used all of its water allowance in a reasonable manner and for a beneficial purpose.

At ¶ 41.

State v. Candland, 2013 UT 55, No. 20110738 (August 16, 2013)

ISSUE: Withdrawal of Guilty Plea

Justice Durham,

Mr. Candland pled guilty to aggravated murder and now appeals his conviction and sentence. We hold that Mr. Candland received constitutionally adequate notice of the nature of the charge and of his limited appeal rights. We also hold that the district court did not abuse its discretion in determining that Mr. Candland entered his plea knowingly and voluntarily. We therefore affirm his conviction and sentence.

At ¶ 1.

The Court reviews the background of this case. Specifically, the trial court’s plea colloquy.

At ¶¶ 2-8.

The Court describes the Constitutional requirement that a guilty plea be made “knowingly and voluntarily,” the beneficial purpose of Rule 11, and the standard of review.

At ¶¶ 9-16.

Mr. Candland first asserts that he did not understand how the facts related to the elements of the crime of aggravated murder. He does not seem to dispute that his notice of the charges and their factual bases were constitutionally adequate. Indeed, it would be nearly impossible to make such an argument because both the plea colloquy and the plea agreement, which was incorporated into the plea hearing record,2 clearly set forth the charges and the alleged conduct by Mr. Candland that corresponded with the elements of the charges, in compliance with rule 11. See supra ¶¶ 2–5. Rather, Mr. Candland alleges that his subjective understanding of the facts and the law was inadequate.

At ¶ 18.

Mr. Candland supports his argument by pointing to his silence following the court’s question, “Are you pleading guilty because you did these things?” Mr. Candland contends that his failure to immediately respond demonstrates that he was confused. However, in context, the transcript shows that Mr. Candland was confused only about the aggravated assault charge, not about the aggravated murder charge.

At ¶ 19

When Mr. Candland did not immediately respond to the court’s question, the court suggested that defense counsel confer with Mr. Candland. Following a brief discussion off the record, defense counsel explained that Mr. Candland was uncomfortable with the prosecutor’s description of the assault. Although he admitted to punching the victim, he did not admit to holding him down and punching him repeatedly. Thus, Mr. Candland’s hesitancy was entirely unrelated to the aggravated murder case, and the district court did not abuse its discretion in determining that Mr. Candland knowingly and voluntarily entered a guilty plea to the aggravated murder charge.

At ¶ 20.

The Court rejects Candland’s argument that he was not adequately informed of his plea would limit his appeal rights.

At ¶¶ 21-25.

August 15, 2013, Utah Court of Appeal Case Summaries

In re K.C., 2013 UT App 201, No. 20120280-CA (August 15, 2013)

ISSUE: Abuse; Admissibility of Evidence

Judge Voros,

First, Father contends that the juvenile court abused its discretion by admitting a photograph into evidence that was of higher quality and clarity than the same photograph provided to Father through discovery. “[W]e review a trial court’s refusal to impose sanctions, such as a failure to exclude evidence under rule 37 of the Utah Rules of Civil Procedure, for an abuse of discretion.” Glacier Land Co. v. Claudia Klawe & Associates, 2006 UT App 516, ¶ 13, 154 P.3d 852 (citation and internal quotation marks omitted). However, “an erroneous decision to admit or exclude evidence does not constitute reversible error unless the error is harmful.” Butler v. Naylor, 1999 UT 85, ¶ 9, 987 P.2d 41 (citation and internal quotation marks omitted). An error is harmful if “absent the error there is a reasonable likelihood of an outcome more favorable to the [appellant].” State v. Dunn, 850 P.2d 1201, 1221 (Utah 1993). Here, even if the higher resolution version of the photograph was erroneously admitted, any error was harmless.

At ¶ 3.

Father asserts that State v. Knight controls this issue, shifting to the State the burden to persuade the court that the error did not unfairly prejudice the defense. See 734 P.2d 913, 920–21 (Utah 1987). However, Knight is distinguishable on multiple grounds. Knight involved a criminal case where the prosecution withheld evidence in its possession that was devastating to the defendant’s alibi defense; when the defense learned of the evidence on the first day of trial, the trial court denied the defendant “all requested relief,” including a continuance. See id. at 917–21. The present case does not involve a criminal offense, the difference in quality between the two photographs was not similar to the devastating evidence in Knight, the State did not have the higher quality photograph in its possession until one business day before the hearing, and Father was granted a two-month continuance so that his expert witness, Dr. Frasier, could review the higher quality photograph. Thus, Knight does not shift the burden of showing the absence of unfair prejudice to the State in this case.

At ¶ 4.

other than conclusory assertions that he was prejudiced, Father does not explain how his hearing preparation was affected. In Knight, which Father urges us to follow, the supreme court stated that a continuance “would have mitigated the prejudice [the defendant] suffered” from the prosecutor’s withholding of the critically damaging information. See id. at 919. Father does not explain how the two-month continuance failed to mitigate any prejudice he claims here. His expert had the opportunity to review the higher quality photograph and testify based on that photograph.

At ¶ 6.

Furthermore, the juvenile court’s final determination rested on substantial evidence in addition to the photograph and Dr. Frasier’s testimony, including Son’s interview, a separate set of photographs, the testimony of Son’s mother (Mother), Father’s testimony, and the Child Protective Services investigator’s observations when he inspected Son’s buttocks. Thus, even if the juvenile court had rejected the higher quality photograph, the court still had ample evidence to find abuse. Moreover, had the higher quality photograph been rejected, the lower quality paper reproduction of the photograph would still have entered the case as evidence. A reduction in the clarity of the photograph does not create a “reasonable likelihood of an outcome more favorable to [Father].” See Dunn, 850 P.2d at 1221. Because Father has not shown that the admission of the higher quality photograph was harmful despite the continuance, he is not entitled to reversal of the juvenile court’s ruling. See id.

At ¶ 7.

The Court affirms the trial court’s refusal to grant a new trial based on new evidence allegedly contradicting Mother’s trial testimony, because (1) the evidence did not actually contradict her testimony, and (2) although the new evidence went to Mother’s possible motive for her testimony, the evidence of her potential motive was already before the court during the initial trial and the new evidence would create no likelihood of a different result.

At ¶¶ 8-10.

The Court rejects Father’s contention that “the juvenile court improperly discredited expert testimony that stood uncontroverted at trial” by “not mention[ing]” the testimony of his expert, Dr. Honts, in the court order, which Father contends “presumptively indicat[es] that the juvenile court gave [Dr. Honts’s] testimony no weight” stating:

The record demonstrates that the juvenile court, when weighing the evidence, properly took Dr. Honts’s assessment of the interview into account. . . .

The juvenile court was not required to accept Dr. Honts’s ultimate conclusion. “[U]ltimately, courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” State v. Maestas, 2012 UT 46, ¶ 200, 299 P.3d 892 (brackets, citation, and internal quotation marks omitted). In addition to being “free to accept or reject an expert’s opinion,” the juvenile court, as a trier of fact, “may accord that opinion whatever weight it deems proper.” In re G.Y., 962 P.2d 78, 83 (Utah Ct. App. 1998); see also Tucker v. Tucker, 910 P.2d 1209, 1216 (Utah 1996) (“[T]he trial court, as trier of fact, [is] entitled to weigh the evidence and reject all or part of any witness’s testimony, even that of an expert.” (citation omitted)).

At ¶¶ 11-13.

The Court rejects Father’s argument that expert testimony establishing that the mark in the picture of son was a “bruise” was required stating:

expert testimony is not required when an issue is “within the common experience of laypersons.” See Beard v. K-Mart Corp., 2000 UT App 285, ¶ 16, 12 P.3d 1015. . .

whether the mark constituted a “bruise” and what caused it did not involve obscure medical factors but was within the common experience of laypersons. Cf. State v. London, 2010 WI App 46U, ¶ 7 (per curiam) (holding that there is no need for expert medical testimony to identify the lack of a bruise). Thus, the determination of whether a bruise was present on Son is not one that required expert testimony

At ¶¶ 14-18.

Walker v. Anderson-Oliver Title Insurance, 2013 UT App 202, No. 20111048-CA (August 15, 2013)

ISSUE: Title Insurer Not Subject to Abstractor Liability; Title Insurer’s Actions Related to Title Search did Not Impose an Independent Duty Under Either a Theory of Intentional Interference with Economic Relations or Negligence

Judge Roth,

Plaintiff Jack Walker appeals the district court’s grant of summary judgment in favor of Defendants Anderson‐Oliver Title Insurance Agency, Inc. (A‐O Title), Stewart Title Guaranty Company (Stewart Title), and Daniel G. Anderson (collectively, the Defendants) on various tort claims. We affirm.

At ¶ 1.

The Court outlines the background of the this case:; particularly, (1) Buyer’s request that Defendants provide him with title insurance on a piece of property he was thinking of buying; (2) Defendants’ discovery of two special warranty deeds claiming an easement for access over the property; (3) Defendants’ determination that the special warranty deeds were invalid and decision not to include them as exceptions on the title insurance or in any other manner disclose them to Buyer; (4) Buyer’s purchase of the property, discovery of the claimed easements, and failure to foreclose the easements after filing suit against the claimant; and (5) Buyer’s instigation of this action alleging causes of action against Defendants sounding in tort.

At ¶¶ 2-5.

The Defendants moved for summary judgment on Walker’s claims, arguing that in preparing and issuing the Commitment and the Title Insurance Policy they had acted only as title insurers, not as abstractors, and therefore were subject to liability only under the terms of the insurance contract and not in tort. In opposition to the Defendants’ motion, Walker argued that there were genuine issues of material fact as to whether the Defendants had acted as abstractors rather than title insurers in preparing and issuing the Commitment and the Title Insurance Policy. Walker also argued that the Defendants “owed a separate duty to Walker,” regardless of whether they had acted as abstractors. The district court granted the Defendants’ motion for summary judgment, concluding that, as a matter of law, they had acted as title insurers, not as abstractors, and had no duty to Walker. Walker appeals.

At ¶ 6.

Title Insurance Company did not Assume the Duties of an Abstractor

Walker argues that the district court erred in granting summary judgment on his claims for negligence and tortious interference. In particular, he challenges the district court’s determination that there were no genuine issues of material fact as to whether the Defendants assumed and negligently breached the duties of an abstractor. He also argues that the district court improperly disposed of his claim for tortious interference and an alternative theory of negligence because the court ignored his argument that these claims depended on a duty distinct from that of an abstractor. We conclude that under Utah case law, except in unusual circumstances not present here, title insurers are not held liable as abstractors. We also conclude that Walker’s other tort claims fail because they attempt to impose abstractor liability on title insurers contrary to Utah law.

At ¶ 8.

. . . Title insurers have a statutory duty “to make a reasonable search and examination of title for the purpose of determining insurability.” Id. at 654 (citing Utah Code Ann. § 31A-20-110(1) (Michie 1986) (current version at id. § 31A-20-110(1) (LexisNexis 2010))). Indeed, “[n]o title insurance policy may be written until the title insurer or its agent has conducted a reasonable search and examination of the title and has made a determination of insurability of title under sound underwriting principles.” Id. (citation and internal quotation marks omitted). Nevertheless, this duty to perform “a reasonable search and examination” is “for the purpose of determining the insurability of title” and does not extend so far as to “impose a duty to abstract titles upon title insurance companies.” Id.

At ¶ 9.

Accordingly, “‘[t]he function, form, and character of a title insurer is different from that of an abstractor.’” Chapman, 2003 UT App 383, ¶ 16 (quoting Culp, 795 P.2d at 654). “‘A title insurance company’s function is generally confined to the practice of insurance, not to the practice of abstracting.’” Id. (quoting Culp, 795 P.2d at 654). “‘One who hires a title insurance company does so for the purpose of obtaining the assurance or guarantee of obtaining a certain position in the chain of title rather than for the purpose of discovering the title status’” or the history of title. Id. (quoting Culp, 795 P.2d at 654). Thus, “preliminary title reports and commitments for title insurance” are considered to be “no more than a statement of the terms and conditions upon which the insurer is willing to issue its title policy.” Culp, 795 P.2d at 653 (citation and internal quotation marks omitted). “A commitment is not an abstract of title” and therefore cannot reasonably be relied upon “as a comprehensive statement of the status of title,” even by the insured. Id. at 655. As a result, a title insurance company generally is not subject to liability in tort3 for omitting the kind of information in a commitment or title insurance policy that would typically be included in an abstract of title. Id. at 653; Chapman, 2003 UT App 383, ¶ 16.

At ¶ 10.

In granting summary judgment, the district court concluded that the Defendants had acted as title insurers and not abstractors, emphasizing that they were not asked to prepare an abstract of title nor did they agree to prepare an abstract of title and that neither of the documents they issued purported to be abstracts of title. Rather, the Defendants agreed only to prepare and to issue the Commitment and the Title Insurance Policy. Walker, however, argues that despite what the Defendants agreed to do, the district court erred in granting summary judgment because there are genuine issues of material fact as to whether the Defendants acted as abstractors and, therefore, assumed the duties of abstractors in preparing and issuing the Commitment and the Title Insurance Policy.

At ¶ 11.

The Court discusses Chapman v. Uintah County, 2003 UT App 383, 81 P.3d 761, and Culp Construction Co. v. Buildmart Mall, 795 P.2d 650 (Utah 1990), which discuss when a title insurer assumes an additional role as an abstractor of title.

At ¶¶ 13-14.

The Court reviews the undisputed evidence and determines that,

there is nothing to indicate that the Defendants had reason to think that the Buyers were relying on either the Commitment or the Title Insurance Policy as a comprehensive statement of the history or state of the title as opposed to “a statement of the terms and conditions upon which [the Defendants were] willing to issue [title insurance].”

At ¶ 15.

The Court rejects Walker’s argument that certain statement on Defendants’ website and underwriting agreement are evidence that they assumed the role of an abstractor because

Walker does not allege that the Buyers saw any of this information—let alone relied on it—before requesting the Commitment and Title Insurance Policy from the Defendants, nor does he establish that the website statements somehow modified the Commitment and the Title Insurance Policy, the Defendants’ only written undertakings.

At ¶ 15.

Rather, consistent with their obligations under Utah law, the Defendants reviewed public records to identify potential encumbrances or liens on the title in order to determine the extent to which they would or would not insure the Bank Property. During this process, the Defendants discovered the Access Deeds but ultimately determined that they were invalid. Whatever legal conclusion the Defendants made in the course of this determination was within the scope of the “reasonable search and examination of title for the purpose of determining insurability” required of a title insurer under Utah law and did not move them into the very distinct realm of the abstractor. See id. at 654. Because the Defendants did not assume the duties of an abstractor, they are not subject to liability in tort as an abstractor. Accordingly, we conclude that the district court correctly determined that there are no genuine issues of material fact as to whether the Defendants acted as abstractors rather than title insurers and appropriately granted summary judgment in favor of the Defendants on that issue.

At ¶ 16.

Separate Duty?

Walker next argues that the district court erroneously granted summary judgment to the Defendants on his claims for tortious interference and negligence because the court limited its analysis to abstractor liability and did not consider his argument that the Defendants had breached another separate duty they owed to Walker. We conclude, as did the district court, that the separate duty upon which Walker’s tortious interference and negligence claims both depend is simply the duty of an abstractor in a different guise. Because we have already ruled that Walker has failed to create a genuine issue of material fact to support his claim that the Defendants acted as abstractors, the district court was correct to dismiss the tort claims along with Walker’s claim for abstractor liability.

At ¶ 17.

Intentional Interference with Economic Relations

To prevail on a claim for intentional interference with economic relations, “the plaintiff must prove that (1) the defendant intentionally interfered with the plaintiff’s existing or potential economic relations, (2) for an improper purpose or by improper means, (3) causing injury to the plaintiff.” Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 18, 192 P.3d 858. According to Walker, even if the Defendants did not act as abstractors, there is at least a question of fact as to whether the Defendants interfered with his economic relations through improper means.  Walker explains that to prove improper means, he may show that the Defendants’ conduct violated an established standard in the title insurance industry. . . .

At ¶ 18.

We conclude that the tortious interference claim cannot survive summary judgment for two reasons. First, the evidence Walker offers is legally insufficient to establish a title insurance industry standard. And second, Walker’s improper means argument, if accepted, would impose the duties of an abstractor on all title insurers contrary to Culp and Chapman.

At ¶ 19.

Walker has failed to establish a genuine issue of material fact regarding the existence of an industry standard. Establishing an industry standard requires more than evidence of a particular company’s rules and policies. See, e.g., Wessel v. Erickson Landscaping Co., 711 P.2d 250, 253–54 (Utah 1985) (relying on the Uniform Building Code to establish an industry standard for construction of a retaining wall); Crandall v. Ed Gardner Plumbing & Heating, 405 P.2d 611, 612 (Utah 1965) (relying on testimony from other plumbers about general practices to establish that a defendant‐plumber violated industry standards); see also Wal–Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 894 (Ind. 2002) (noting that the mere existence of a company’s internal corporate policy did not create a legal duty to a plaintiff). Rather, “‘the standard of conduct which the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor.’” Wal–Mart Stores, 774 N.E.2d at 895 (quoting W. Page Keeton, Prosser & Keeton on the Law of Torts § 32, at 173–74 (5^th ed. 1984)).

The evidence Walker offers, by contrast, focuses almost exclusively on the Defendants’ internal company policies, not general practices in the title insurance industry. . . .

Moreover, Walker’s purported industry standard is inconsistent with Utah statutes and case law governing the title insurance industry. . . . In other words, Walker’s argument that industry standards required the Defendants to list the Access Deeds on the Commitment or the Title Insurance Policy simply recasts title insurers as abstractors. We have already rejected this argument as contrary to Culp and Chapman.

At ¶ 20-22.

Negligence

Walker also argues that the district court erred in granting summary judgment on his negligence claim because it failed to recognize an independent basis for negligence separate from abstractor liability. According to Walker, instead of expressly identifying the Access Deeds in the Commitment and the Title Insurance Policy, the Defendants made a legal determination about the validity of the Access Deeds and decided to insure over them without disclosing their existence. In so doing, Walker argues, the Defendants undertook an act “that gave rise to a duty to Walker . . . separate and distinct from any duty related to whether the [D]efendants acted as abstractors.” (Citing Stuckman ex rel. Nelson v. Salt Lake City, 919 P.2d 568, 573 (Utah 1996).) “In other words,” Walker asserts, “by failing to disclose the existence of the [Access Deeds], the . . . Defendants did not act with ordinary care” and thereby breached a duty owed to Walker. In support, Walker cites the same evidence upon which he relied to establish abstractor liability and improper means. See supra ¶¶ 12, 21. According to Walker, this evidence creates an issue of material fact with respect to whether the Defendants assumed a tort duty requiring disclosure of the Access Deeds distinct from that of an abstractor.

At ¶ 23.

We conclude, however, as did the district court, that the negligence claim “boil[s] down to whether . . . the nature of the [D]efendants’ work in this case amounted to abstracting title.” This is because the negligence claim has no merit unless tort law requires title insurers to provide an accurate title history when issuing insurance—a duty our case law imposes only on abstractors and on title companies that assume certain duties outside the context of issuing title insurance. See Chapman, 2003 UT App 383, ¶¶ 17–18; see also supra ¶¶ 13–14. But we have already determined that the Defendants did not act as abstractors by virtue of issuing title insurance, and none of the evidence Walker provides creates a genuine issue of material fact regarding whether the Defendants assumed duties distinct from those of a title insurance company as Chapman requires. See 2003 UT App 383, ¶¶ 17–18.

At ¶ 24.

The Court distinguishes other cases where a plaintiff was able to sue a title insurer in tort.

At ¶¶ 27-28.

Hoffer v. Hoffer, 2013 UT App 203, No. 20110703-CA (August 15, 2013)

ISSUE: Briefing on Appeal

Per Curiam,

“As an appellate court, our ‘power of review is strictly limited to the record presented on appeal.’ . . . ‘Parties claiming error below and seeking appellate review have the duty and responsibility to support their allegations with an adequate record.’” Gorostieta v. Parkinson, 2000 UT 99, ¶ 16, 17 P.3d 1110 (citations omitted); see also State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982) (stating that absent an adequate record on appeal an appellant’s “assignment of error stands as a unilateral allegation which the reviewing court has no power to determine”); Call v. City of W. Jordan, 788 P.2d 1049, 1052 (Utah Ct. App. 1990) (stating that “the appellant has the burden of providing the reviewing court with an adequate record on appeal to prove his allegations”). Accordingly, if an appellant seeks review of rulings, findings, and conclusions made during the course of trial or as a result of a trial, the appellant must include a transcript of the proceeding in the record on appeal. In the absence of the transcript on appeal, this court presumes the regularity of the proceedings below. See State v. Jones, 657 P.2d 1263, 1267 (Utah 1982). Because Wife did not provide us with a copy of the trial transcript, we must presume the regularity of that proceeding, including that ample evidence was introduced that supports the determinations Wife seeks to challenge. As a result, this court cannot review the claims of error set forth in her brief because all such claims rely, at least in part, on testimony and evidence elicited during the trial.

At ¶ 3.

Irving Place v. 628 Park Ave, 2013 UT App 204, No. 20120031-CA (August 15, 2013)

ISSUE: Validity of a Judgment Lien

Judge Davis,

Irving Place Associates (Irving Place) appeals from the district court’s ruling that 628 Park Ave, LLC (628 Park Ave) possesses a valid judgment lien on certain real property (the Property) owned by Irving Place. We affirm.

At ¶ 1.

Irving Place first argues that the district court erred when it concluded that a final judgment was not required to create a judgment lien under Utah Code sections 78B-5-201 and -202. We agree with the district court that the plain language of those sections does not require a final judgment for the creation of a judgment lien.

At ¶ 9.

We also note that while a nonfinal judgment is sufficient for the creation of a lien, the lien may not be enforced through a writ of execution until the judgment has become final. See Utah R. Civ. P. 64E(a) (“A writ of execution is available to seize property in the possession or under the control of the defendant following entry of a final judgment or order requiring the delivery of property or the payment of money.” . . .

At ¶ 11.

Irving Place also argues that the district court erred in concluding that 628 Park Ave’s recorded judgment satisfied Utah Code section 78B‐5‐201(4)(a)’s requirement that the judgment include “the information identifying the judgment debtor” because the judgment identified Ring, the judgment debtor, only by name. See Utah Code Ann. § 78B‐5‐201(4)(a). Irving Place argues that when read in the context of the statute as a whole, “the information identifying the judgment debtor” necessarily refers to the much more detailed information specified in section 78B‐5‐201(4)(b). See id. § 78B‐5‐201(4)(b) (specifying the information that must be contained in a separate information statement, including a judgment debtor’s last‐known address and, if known, the debtor’s Social Security number, date of birth, and driver license number).

At ¶ 13.

[A]ny judgment or abstract of judgment that is recorded in the office of a county recorder after July1, 2002, shall include:

(a) the information identifying the judgment debtor on the judgment or abstract of judgment; or

(b) a copy of the separate information statement of the judgment creditor that contains:

(i) the correct name and last‐known address of each judgment debtor and the address at which each judgment debtor received service of process;

(ii) the name and address of the judgment creditor;

(iii) the amount of the judgment as filed in the Registry of Judgments;

(iv) if known, the judgment debtor’s Social Security number, date of birth, and driver’s license number if a natural person; and

(v) whether or not a stay of enforcement has been ordered by the court and the date the stay expires.

[Utah Code Ann.] § 78B‐5‐201(4).

At ¶ 14.

Here, it is undisputed that 628 Park Ave’s recorded judgment did not include a separate information statement pursuant to subsection (4)(b). Therefore, the judgment would create a lien upon Ring’s real property only if it “include[d] the information identifying the judgment debtor on the judgment,” Utah Code Ann. § 78B‐5‐201(4)(a) (LexisNexis 2012). The district court concluded that because of the disjunctive “or” between subsections (4)(a) and (4)(b), a judgment creditor need satisfy only one of the subsections. The district court further concluded that the recorded judgment repeatedly identified Ring as the subject of the judgment and that the recorded judgment satisfied subsection 4(a) “because it is clear that the judgment debtor is identified in the Original Judgment itself.”

At ¶ 15.

We agree with the district court that the statute’s use of the word “or” clearly indicates that an information statement identifying the information listed in subsection (4)(b) is not necessary where the judgment or abstract of judgment contains “the information identifying the judgment debtor,” id. § 78B‐5‐201(4)(a). The question, then, is what minimum identifying information must be included on the judgment in order for it to satisfy subsection (4)(a). While the phrase “the information identifying the judgment debtor,” id., is by no means a model of clarity, we disagree with Irving Place’s assertion that the extensive information outlined in subsection (4)(b) must be provided in order for a creditor to create a judgment lien under subsection (4)(a).

At ¶ 16.

Judge Thorne (dissenting),

I agree with the majority opinion’s conclusion that a judgment lien may be created by a nonfinal judgment pursuant to Utah Code sections 78B-5-201 and 78B-5-202. However, I disagree with the majority opinion as to its conclusion that a judgment recorded without an included copy of a separate information statement need only identify a judgment debtor by name in order to create a judgment lien against real property. To the contrary, section 78B-5-201(4) enumerates the specific pieces of information that must be included on either the judgment itself or an included or later‐recorded separate information statement before a lien against real property is created. It is undisputed that the judgment 628 Park Ave recorded does not contain the required information, and I would reverse the district court’s ruling that the recorded judgment created a lien against the Property. For these reasons, I respectfully dissent from the majority opinion.

At ¶ 19.

Judge Thorne explains.

At ¶¶ 20-27.