After today's summaries, I will no longer summarize appeals of agency decisions for sufficiency of evidence or appeals of juvenile court determinations to terminate parental rights. Such decisions are inherently fact sensitive and difficult to meaningfully summarize. Further, the Court nearly always defers to the trial court's or agency's factual determinations.
I will continue to list the case, but will simply indicate the nature of the appeal in the "ISSUE" heading.
In re L.M., 2013 UT App. 190, No.
20120556-CA (August 1, 2013)
Judge
Davis,
M.V-L. (Father) appeals the juvenile court’s ruling terminating his parental rights to his two daughters, L.M. (Older Sister) and L.M. (Younger Sister). We affirm the juvenile court’s ruling.
At ¶
1.
The
Court ouitlines the background of this case.
At ¶¶
2-9.
Father challenges the sufficiency of the evidence supporting the juvenile court’s determinations that he is an unfit parent, that he neglected his children, and that it is in the children’s best interests for his parental rights to be terminated.
At ¶
10.
Father argues that the juvenile court’s finding that he failed to take any action to protect his children from M.A.—i.e., that he failed to call the police, file for a protective order, or contact DCFS—is insufficient to support the termination of his parental rights. Father contends that the actions enumerated by the juvenile court “would [not] have ensured the protection and safety of his children from the risks and harms of being exposed to domestic violence presented to them,” particularly because the police were already aware of the situation, Mother had assured him that the children could not hear the violence being perpetrated through the garage walls, and the children had not disclosed to Father that they knew of the domestic violence. Therefore, he contends, he “violated no legal duties” by opting against pursuing such futile protective measures. Father also asserts that he and the children shared a loving and bonded relationship and that the children were “subject to gross neglect in the foster home due to obvious risks of ongoing sexually reactive behaviors being ignored and perpetuated.”
At ¶
11.
We agree with the juvenile court. Father’s arguments as to the futility of the protective actions suggested by the juvenile court do not exonerate him from his duty to protect his children from the violence occurring in their home.
At ¶
14.
Father attempts to undermine the import of his inaction by focusing on other measures of his parenting ability, i.e., by pointing out that his “parenting was not found to fall below any cognizable legal standard in 2009” and that he pays child support, buys the children clothes, spends time with his children, talks to them regularly on the telephone, and otherwise has positive, loving relationships with his children, as well as with Son and Half Sister. Father also notes that he had made one offer to take the children and conducted a brief and fruitless search for more suitable housing to facilitate their moving in with him. Father’s positive relationship and other strengths as a parent, as well as his fleeting efforts to have the children move in with him, however, do not outweigh the severity of his overall failure to act. The knowledge that a violent gang member with a lengthy criminal record, whom Father described as adept at eluding authorities, was regularly breaking into the home in which his children lived and assaulting their mother should have prompted any reasonable parent to take actions that would ensure the safety and best interests of his or her children. Father was also aware that during at least one of these incidents, M.A. threatened Mother with a knife. Allowing children to continue living under these conditions based primarily on the belief that they will remain blind to and unharmed by reality if they “hear no evil” and “see no evil” decidedly does not ensure the children’s safety. Accordingly, the juvenile court had sufficient evidence to determine that Father neglected his children.
At ¶
15.
We agree with the State that, if anything, “the children’s physical and emotional condition when they came in to foster care is actually further evidence of parental neglect” and, we would add, further evidence that termination of Father’s parental rights is in the children’s best interests. Accordingly, sufficient evidence supported the juvenile court’s determination that it is in the children’s best interests to terminate Father’s parental rights and allow the children “to be adopted by [the foster] parents into a home where they will be secure, stable, loved, and protected from neglect and abuse.”
At ¶
17.
In re L.M., 2013 UT App 191, No.
20120520-CA (August 1, 2013)
ISSUE:
Termination of Parental Rights; Hearsay
Judge
Davis,
J.P. (Mother) appeals the juvenile court’s termination of her parental rights in four of her children. We affirm.
At ¶
1.
Challenge To
Hearsay Statements of a Child in a Trial to Determine Termination of Parental
Rights
The hearsay exception provides, “For the purpose of establishing the fact of abuse, neglect, or dependency, the court may, in its discretion, consider evidence of statements made by a child under eight years of age to a person in a trust relationship.” Utah Code Ann. § 78A-6-115(6) (LexisNexis 2012). Mother distinguishes between adjudication hearings conducted pursuant to a petition filed under Utah Code section 78A-6-304, id. § 78A-6-304, and termination hearings conducted pursuant to petitions filed under Utah Code section 78A-6-504, id. § 78A-6-504. She asserts that the relaxed admissibility standard permitted under the hearsay exception applies only in the context of adjudication hearings and not in the context of termination hearings.
At ¶
8.
We disagree with Mother’s analysis. The hearsay exception falls under “Part 1 General Provisions” of the Juvenile Court Act. See Utah Code Ann. tit. 78A, ch. 6, tbl. of contents, at 104–05 (LexisNexis 2012). Had the legislature intended it to apply only to adjudication hearings, it would presumably have included the rule in “Part 3 Abuse, Neglect, and Dependency Proceedings,” which contains additional procedural rules for such non-termination hearings. See id. at 105–06. Furthermore, the existence of several explicit references to termination proceedings in section 78A-6-115, the section containing the hearsay exception, suggests that the section as a whole was intended to address both adjudication and termination proceedings. See Utah Code Ann. § 78A-6-115(2)(b)(ii), (4)(a), (5)(b)(ii).
At ¶
9.
The
Court declines to address Mother’s constitutional arguments because she failed
to preserve them.
At ¶¶
12-13.
Mother next asserts that even if the hearsay exception can appropriately be applied in termination proceedings, the juvenile court erred in finding that the therapist and the foster mother had trust relationships with the two children to whose statements they testified. In order to determine whether a child has a trust relationship with an individual, the juvenile court must consider not only the type of relationship at issue—e.g., parent–child, teacher–student—but also whether the child “in fact trusted” that individual. In re L.N., 2004 UT App 120, ¶ 19, 91 P.3d 836.
At ¶
14.
The
Court reviews the trial court’s finding concerning the existence of a trust
relationship, and declines to second guess the finding of fact.
At ¶¶
15-16.
The
Court reviews the juvenile court’s findings and determines that they supported
its decision to termination Mother’s parental rights.
At ¶¶
17-19.
State v. Denos, 2013 UT App 192, No.
20110959-CA (August 1, 2013)
ISSUE:
Evidence of sexual history of the victim in a rape case
Judge
Davis,
Thomas Wayne Denos appeals his conviction of one count of rape, a first degree felony, see Utah Code Ann. § 76-5-402(1), (3) (LexisNexis 2012); one count of forcible sodomy, a first degree felony, see id. § 76-5-403(2), (4); and one count of forcible sexual abuse, a second degree felony, see id. § 76-5-404(1), (2)(a). We affirm.
At ¶
1.
The
Court reviews the background of this case; specifically: (1) the trial court’s
refusal to allow Defendant to cross examine victim regarding a specific
instance of sexual activity; and (2) the trial court’s admission of three
stories by women that alleged previous non-consensual sexual encounters with
Defendant.
At ¶¶
2-11.
Denos asserts that the trial court violated his Sixth Amendment right to confront witnesses when it excluded evidence related to E.M.’s encounters with Boyfriend and Guest under rule 412 of the Utah Rules of Evidence. Rule 412 provides, with limited exceptions, that “evidence offered to prove that a victim engaged in other sexual behavior” and “evidence offered to prove a victim’s sexual predisposition” is “not admissible in a criminal proceeding involving alleged sexual misconduct.” Utah R. Evid. 412(a). One exception to this rule permits the trial court to admit such evidence, where otherwise admissible under the rules, if its “exclusion would violate the defendant’s constitutional rights.” Id. R. 412(b).[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witnesses.Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (omission in original); accord State v. Clark, 2009 UT App 252, ¶ 16, 219 P.3d 631.
At ¶
14.
First, we are not convinced that evidence relating to E.M.’s encounter with Guest fell within the ambit of rule 412, which excludes only evidence of a victim’s “sexual behavior” and “sexual predisposition.” See Utah R. Evid. 412(a). “Past sexual behavior connotes all activities that involve actual physical conduct (i.e. sexual intercourse and sexual contact) or that imply sexual intercourse or sexual contact,” such as the birth of an illegitimate child, evidence of venereal disease, or use of contraceptives, as well as “mental activities, such as fantasies or dreams.” Id. R. 412 advisory committee note. Evidence relating to a victim’s sexual predisposition includes “evidence of the alleged victim’s dress, speech, or life-style.” Id.
At ¶
15.
Evidence that Denos entered the room where E.M. was sleeping in order to remove Guest, who was attempting to assault E.M., does not relate to E.M.’s sexual behavior or predisposition. If anything, this evidence makes E.M. appear less sexually promiscuous because it portrays her rejecting a man who was attempting to have sex with her. As Denos observes, this evidence “certainly might reflect on [Guest]’s sexual proclivities” but does not reflect on E.M.’s. Accordingly, it is not subject to exclusion under rule 412.
At ¶
16.
Nevertheless, the trial court’s exclusion of this evidence was harmless beyond a reasonable doubt because the evidence was of little, if any, probative value. [The Court explains]
At ¶
17.
The evidence relating to Boyfriend clearly related to E.M.’s sexual behavior and was therefore subject to the dictates of rule 412. A party who seeks to offer rule 412 evidence must “file a motion that specifically describes the evidence and states the purpose for which it is to be offered . . . at least 14 days before trial unless the court, for good cause, sets a different time.” Utah R. Evid. 412(c)(1). The motion is to be served on all parties, and notice given to the alleged victim. Id. R. 412(c)(1)(C), (c)(2). The trial court then conducts an in camera review of the evidence to evaluate its admissibility. Id. R. 412(c)(3). Denos filed no such motion, and no hearing was ever held.3 Therefore, Denos waived his right to confront the witnesses about the encounter with Boyfriend.
At ¶
18.
In part due to the incomplete record, which fails to provide any insight into what Friend and E.M. would have testified to had they been cross-examined as Denos requested, see supra note 3, we agree with the trial court that there is nothing to indicate that E.M. felt guilty or was crying “mostly because of [having had] sex with her best friend’s boyfriend.” And while “[t]here may have been other things that factored into [her demeanor], . . . it was [not] sufficient to allow [the court] to go against [rule] 412,” particularly where “[t]he issue [was] not whether the intercourse happened” but whether E.M. consented to the intercourse. . . . The fact that E.M. felt guilty and cried about the decisions she had made the night before did not have a significant impact on the consent issue one way or the other because it could just as easily have been explained by E.M. feeling regret about having consented to sex with Denos in her inebriated state as by trauma over having been raped. In other words, Denos did not need to introduce evidence regarding the incident with Boyfriend in order to provide the jury with an alternative explanation for E.M.’s emotions, and the testimony about E.M.’s demeanor did not inappropriately mislead the jury in such a way as to require that the evidence about Boyfriend be admitted out of concern for “fundamental fairness.”
At ¶
20.
Denos next contends that the trial court erred in permitting the rule 404(b) witnesses to testify. Evidence sought to be admitted under rule 404(b) must withstand a three-part inquiry. State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 18–20, 6 P.3d 1120. First, it must be “offered for a proper, noncharacter purpose,” id. ¶ 18, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” Utah R. Evid. 404(b)(2). Second, the evidence must be admissible under rule 402, that is, it must be relevant to the noncharacter purpose identified. See Nelson-Waggoner, 2000 UT 59, ¶ 19; see also Utah R. Evid. 402. See generally id. R. 401 (defining relevant evidence as evidence having “any tendency to make a fact more or less probable than it would be without the evidence” where “the fact is of consequence in determining the action”). Finally, the evidence must be admissible under rule 403, that is, its probative value may not be “‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’” Nelson-Waggoner, 2000 UT 59, ¶ 20 (quoting Utah R. Evid. 403).
At ¶
21.
In this case, the State sought to introduce rule 404(b) testimony for the proper noncharacter purpose of proving lack of consent. See generally id. ¶ 24 (explaining that rule 404(b) evidence could be “admitted for the noncharacter purpose of proving the element of lack of consent in certain rape trials”). This evidence was relevant to lack of consent because it suggested that Denos had victimized other women “in a strikingly similar manner.” See id. As our supreme court recently explained,When one person claims rape, the unusual and abnormal element of lying by the complaining witness may be present. But when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story.State v. Verde, 2012 UT 60, ¶ 48, 296 P.3d 673 (citation and internal quotation marks omitted). . . . The low probability that all of these women would independently, but falsely, have reported such similar experiences makes the evidence relevant for the noncharacter purpose of proving lack of consent.
At ¶
22.
We next turn to the question of whether the danger of unfair prejudice substantially outweighed the probative value of the rule 404(b) evidence. In analyzing this question, we employ what have come to be known as the Shickles factors, which includethe strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988). We address each factor in turn.
At ¶
23.
First, the evidence was generally strong because the witnesses “testified in person at trial and were available for crossexamination,” see State v. Marchet (Marchet I), 2009 UT App 262, ¶ 45, 219 P.3d 75. However, the strength of B.E.’s testimony was undermined by the fact that Denos had been acquitted of raping her only two weeks before the trial in this case, though any prejudice was mitigated by the fact that the jury was informed of the acquittal. Cf. Nelson-Waggoner, 2000 UT 59, ¶ 31 (indicating that a defendant’s acquittal on an alleged rape to which a rule 404(b) witness testified made her testimony “suspect”); State v. Hildreth, 2010 UT App 209, ¶ 44, 238 P.3d 444 (explaining that acquittal on charges relating to the testimony of a rule 404(b) witness “undercut[s] the credibility of the [witness’s] testimony”). Thus, while this factor weighs in favor of admitting K.L.’s and B.A.’s testimony, it may weigh against admitting B.E.’s testimony.
At ¶
24.
Second, as discussed above, the events were strikingly similar. In particular, they demonstrate that Denos had a habit of assaulting women while they were unconscious or asleep. The likelihood that four different women would independently and falsely assert this particular modus operandi is low.
At ¶
25.
Third, at least as to B.E., the interval of time between the two crimes was small. The assault on E.M. took place less than five months after the assault on B.E., and even Denos concedes that this “would not be considered particularly lengthy.” However, the incidents with K.L. and B.A. took place more than three-and-a-half years before Denos’s assault of E.M. and more than three years before his alleged assault of B.E., which leads this factor to weigh against admission as to those two witnesses’ testimonies. Cf. Hildreth, 2010 UT App 209, ¶ 44 & n.12 (holding that a three-year interval was “undoubtedly” lengthy). But cf. Marchet I, 2009 UT App 262, ¶ 45 (holding that a nearly two-and-a-half-year interval was “sufficiently proximate to warrant . . . admission”).
At ¶
26.
Fourth, the need for the evidence was great; without it, “the jury would be left to resolve a contest of credibility between” Denos and E.M. See Marchet I, 2009 UT App 262, ¶ 45 (internal quotation marks omitted). And fifth, there was no alternative means of proving lack of consent that would be similarly effective. See id.
At ¶
27.
Finally, it is unlikely that the jury would have been roused to overmastering hostility by the rule 404(b) evidence. K.L.’s and B.A.’s testimonies revealed less disturbing behavior than that alleged in the case at hand, and B.E.’s testimony revealed more or less equally disturbing behavior. See generally State v. Reed, 2000 UT 68, ¶ 31, 8 P.3d 1025 (“[E]vidence of multiple acts of similar or identical abuse is unlikely to prejudice a jury.”); State v. Northcutt, 2008 UT App 357, ¶ 15, 195 P.3d 499 (explaining that where the incident at issue is “more disturbing” than the ones described by the rule 404(b) evidence, that evidence is “not likely to rouse the jury to overmastering hostility” (citation and internal quotation marks omitted)).
At ¶
28.
Thus, at least five of the six Shickles factors weigh in favor of admitting each rule 404(b) witness’s testimony. Because this testimony complies with the requirements of rules 402, 403, and 404 of the Utah Rules of Evidence, we cannot say that the trial court abused its discretion in admitting it.
At ¶
29.
Judge
Orme, (Concurring in part ; dissenting in part)
I concur in the lead opinion except for its conclusion that Denos’s failure to file a timely rule 412 motion precluded him from Cross-examining E.M., who was only seventeen at the time of the incident, about why she felt “‘guilty’ and ‘stupid’ because she had ‘been reckless and done bad things’” and from cross-examining Friend about the circumstances of E.M.’s crying “when she encountered Friend the next morning.” These were topics introduced by the State’s witnesses and Denos had every right to examine E.M. and Friend about their testimony.
At ¶
31.
It was categorically unfair to permit the witnesses to trot these characterizations out yet preclude Denos from subjecting them to cross-examination, thereby leaving the jury to speculate about what explained the behaviors vaguely touched upon by E.M. and Friend. Because Denos’s right to cross-examine this testimony was preempted completely, and not just to the extent of his asking directly about E.M.’s prior sexual conduct, his confrontation rights were violated. For this reason, I would reverse his convictions and remand for a new trial.
At ¶
34.
Carnagie v. Department of
Workforce Services, 2013 UT App 193, No. 20120258-CA (August 1, 2013)
ISSUE
Voluntary resignation
Judge
Thorne,
Scott Carnagie seeks judicial review of a decision of the Workforce Appeals Board (the Board) affirming the denial of his claim for unemployment benefits. We decline to disturb the Board’s decision.
At ¶
1.
Carnagie
challenges the Board’s determination that he voluntarily quit his
employment. The Court reviews the
evidence and determines that it supports the Board’s determiation.
At ¶¶
2-16.
Packer v. Attorney General’s
Office, 2013 UT App 194, No. 20110774-CA (August 1, 2013)
ISSUE:
Standing
Judge
Thorne,
Lynn Kenneth Packer filed several motions in the district court pertaining to a criminal investigation in which he was the complaining witness. The district court dismissed Packer’s motions for lack of standing, and Packer appeals. We agree with the district court that Packer lacks standing, and we therefore dismiss his appeal.
At ¶
1.
The Court
reviews the background of this case.
At ¶¶
2-6.
The district court concluded that Packer lacked standing to bring his motions seeking to require the Attorney General to comply with the Subpoena Act, to disqualify counsel, and to appoint a special prosecutor.
At ¶
8.
The traditional test for standing has three parts. Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 8, 207 P.3d 1221.First, the party must assert that it has been or will be adversely affected by the [challenged] actions. Second, the party must allege a causal relationship between the injury to the party, the [challenged] actions and the relief requested. Third, the relief requested must be substantially likely to redress the injury claimed.Id. (alterations in original) (citation and internal quotation marks omitted). “The traditional test is often referred to as the ‘distinct and palpable injury’ requirement,” Utah Chapter of Sierra Club, 2006 UT 74, ¶ 19, because a party asserting traditional standing must allege “some distinct and palpable injury that gives [him] a personal stake in the outcome of the legal dispute,” id. (citation and internal quotation marks omitted).
At ¶
9.
We agree with the district court that Packer lacks traditional standing. None of his motions allege any “distinct and palpable injury that gives [him] a personal stake in the outcome.” Utah Chapter of Sierra Club, 2006 UT 74, ¶ 19 (citation and internal quotation marks omitted). To the extent that the motions can be read as an attempt to obtain the documents sought in Packer’s second GRAMA request—a reading that Packer objects to on appeal—the district court correctly concluded that the relief sought in Packer’s motions would not result in any earlier production of those documents. See Hogs R Us, 2009 UT 21, ¶ 8 (“[T]he relief requested must be substantially likely to redress the injury claimed.” (citation and internal quotation marks omitted)).
At ¶
12.
Packer takes issue with the district court’s treatment of his motions as relating solely to his second GRAMA request, arguing that his “‘real interest’ in connection with the court proceedings is to achieve what his motions sought.” However, his motions sought to assert and rectify an alleged conflict of interest between counsel for the Attorney General and Weber State and to require the Attorney General to comply with Packer’s interpretation of the Subpoena Act. As Packer is not the target of the criminal investigation, he has no “personal stake in the outcome” of questions pertaining to the Attorney General’s or Weber State’s choice of counsel or the Attorney General’s compliance with the Subpoena Act in this matter. See Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (citation and internal quotation marks omitted). Rather, under the circumstances, his motions “amount to ‘generalized grievances that are more appropriately directed to the legislative and executive branches of the state government.’” Society of Prof’l Journalists, Utah Chapter v. Bullock, 743 P.2d 1166, 1170 (Utah 1987) (quoting Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983)). Thus, no matter how we read Packer’s motions, he lacks traditional standing to seek the relief sought therein.
At ¶
13.
Assuming for purposes of Packer’s argument that Utah does grant adverse parties, including unlicensed pro se parties, standing to assert ethical violations by opposing counsel—an issue we do not decide today—we ultimately agree with the district court that such standing is unavailable here because Packer “is not a party to or target of the investigation.” In other words, Packer is not an “adverse party” to either the Attorney General or Weber State, see Booth, 634 N.Y.S.2d at 653, and is thus not in a position to challenge the qualifications of those parties’ choice of counsel.
At ¶
15.
Packer also argues that he has standing under the alternative standing test, see Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 36, 148 P.3d 960, sometimes referred to as the public interest standing doctrine, see Gregory v. Shurtleff, 2013 UT 18, ¶ 16, 299 P.3d 1098 (“Our public‐interest standing doctrine is not unusual in state jurisprudence.”). . . .
At ¶
16.
Alternative standing requires a showing that one is “an appropriate party raising issues of significant public importance.” Utah Chapter of Sierra Club, 2006 UT 74, ¶ 35. Even if we accept Packer’s implicit argument that the issues he raises in his motions are, at least in a general sense, “issues of significant public importance,” Packer fails to demonstrate that he is “an appropriate party” to raise those issues. See id. To be an appropriate party, one must “show ‘a real and personal interest in the dispute,’” id. ¶ 38 (quoting Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983)), and Packer has shown no real and personal interest in the general enforcement of either the Subpoena Act or the Utah Rules of Professional Conduct. Instead, his interest appears to be in enforcing his interpretation of those provisions as the complaining witness and putative victim in this particular case, an issue of much narrower public significance.
At ¶
19.
In re Z.H., 2013 UT App 195, No.
20130338-CA (August 1, 2013)
ISSUE:
Termination of Parental Rights
Per
Curiam,
H.M. (Mother) appeals the juvenile court’s March 25, 2013 order terminating her parental rights. We affirm.
At ¶
1.
At ¶
2- 6.
Velander v. LOL of Utah, LLC
and Richards, 2013 UT 196, No. 20130391-CA (August 1, 2013)
ISSUE:
Appealable Orders; Rule 7(f) & Time Period for Rule 59.
Per
Curiam,
D. Douglas Velander appeals the district court’s April 4, 2013 order. We reverse and remand.
At ¶
1.
A motion filed pursuant to rule 59 of the Utah Rules of Civil Procedure “shall be served not later than ten days after the entry of the judgment.” Utah R. Civ. P. 59(b). When a rule 59 motion is not filed timely, the district court is required to deny the motion. Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982). The district court granted Richards’s motion to dismiss on December 21, 2012. On January 10, 2013, Velander filed a rule 59 motion to amend the judgment. On April 4, 2013, the district court denied the rule 59 motion on the ground that it was not filed within ten days after the entry of the judgment.
At ¶
2.
However, rule 54 of the Utah Rules of Civil Procedure defines a judgment as “any order from which an appeal lies.” Utah R. Civ. P. 54(a). To be appealable, an order contemplated as a final, appealable order by the district court “must explicitly direct that no additional order is necessary.” See Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶¶ 30–36, 201 P.3d 966. Otherwise, when the district court does not expressly direct that its order is the final order of the court, rule 7(f)(2) of the Utah Rules of Civil Procedure requires the prevailing party to prepare and file an order to trigger finality for purposes of appeal. See id. ¶ 30. If the prevailing party does not prepare and file an order in accordance with rule 7(f)(2), the non-prevailing party may do so. See id. ¶ 38.
At ¶
3.
The time period for filing a rule 59 motion runs from the date of entry of an appealable order. See Utah R. Civ. P. 54(a). The December 21, 2012 order was not appealable because it failed to comply with the requirements set forth in Giusti and rule 7(f)(2). Thus, the district court erred by denying the rule 59 motion on the basis that it was untimely, as the ten-day time period for filing the rule 59 motion did not commence on December 21, 2012, and, indeed, has yet to commence.
At ¶
4.
BACT Limited Partnership v.
Binks, 2013 UT App 197, No. 20120706-CA (August 1, 2013)
ISSUE:
Rule 37(e)(2) Sanction of deeming allegations established; Civil Conspiracy
Per
Curiam,
[Appellants] (collectively, the Binkses) appeal the trial court’s entry of judgment against them. We affirm.
At ¶
1.
BACT served discovery requests on the Binkses in June 2011. The Binkses did not respond to the discovery requests. Over the course of several months and despite two court orders requiring them to provide discovery, the Binkses failed to fully respond to the requests. As a result, in March 2012, BACT filed a motion for sanctions pursuant to rule 37(e) of the Utah Rules of Civil Procedure.
At ¶
4.
The trial court granted the motion for sanctions. Pursuant to rule 37(e)(2), the court deemed the allegations in the complaint to be established and prohibited the Binkses from opposing the claims. Utah R. Civ. P. 37(e)(2). With the claims for fraudulent transfer and civil conspiracy established, the trial court entered judgment against the Binkses jointly and severally for the amount of the judgment in the initial case. The Binkses appeal.
At ¶
5.
The Binkses have not shown that the trial court abused its discretion by not holding an evidentiary hearing where the court awarded damages in an amount identified in the complaint that was the undisputed amount of the prior judgment against Mary Ann Binks. Considering the allegations in the complaint as true, the fraudulent conveyances and the civil conspiracy to conceal assets prevented BACT from collecting the prior judgment, an established sum. As a result, it was within the trial court’s discretion to enter that prior judgment amount as the damages in this case without a hearing.
At ¶
7.
At ¶ 8The Binkses also argue that the cause of action for civil conspiracy was not sufficiently pleaded in the complaint. Civil conspiracy is comprised of five elements: “(1) a combination of two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.” Pohl v. Webelhuth, 2008 UT 89, ¶ 29, 201 P.3d 944. On review of the complaint, the allegations were sufficient to plead a cause of action for civil conspiracy. The Binkses combined to act with the objective of concealing assets from a creditor by means of fraudulent transfers of property, the properties were actually transferred, and BACT incurred damages as a result because it was unable to collect on its outstanding judgment, an amount certain. Allegations to meet each element of civil conspiracy were presented in the complaint.
No comments:
Post a Comment