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.