In re K.C., 2013 UT App 201, No.
20120280-CA (August 15, 2013)
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.
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 (5th 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)
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.
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