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.