July 26, 2013, Utah Court of Appeals Case Summaries

Bennett v. Bigelow, 2013 UT App 180, No. 20111047-CA (July 26, 2013)

ISSUES: Excusable Neglect

Judge Thorne,

Brendt Thomas Bennett appeals from the district court’s denial of his motion for enlargement of time in which to appeal the dismissal of his petition for extraordinary relief. See generally Utah R. App. P. 4(e). We reverse the district court’s order denying Bennett’s motion and remand this matter for further proceedings consistent with this opinion.

At ¶ 1.

[T]he district court issued a memorandum decision granting summary judgment to Respondents on the two remaining claims and dismissing Bennett’s petition. The memorandum decision directed Respondents to “submit an implementing order.” Respondents prepared and filed an order for the district court’s signature and served it on Bennett on February 28. The district court signed Respondents’ order on March 16, but Respondents did not serve a copy of the executed order on Bennett as required by the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 58A(d) (“A copy of the signed judgment shall be promptly served by the party preparing it . . . .”). The thirty-day period in which Bennett could appeal the dismissal order expired on April 15, 2011. See Utah R. App. P. 4(a).

At ¶ 5.

On May 11, 2011, Bennett filed a verified motion for enlargement of time to appeal the March 16 dismissal order pursuant to rule 4(e) of the Utah Rules of Appellate Procedure. See id. R. 4(e) (governing extensions of time to appeal a judgment or order). According to Bennett’s motion, he had “waited on pins and needles” for notice that the district court had signed the dismissal order, but none was forthcoming. After more than a month of waiting, Bennett enlisted the help of his out-of-state parents to track down the status of the order. This process was made more difficult by what Bennett described as “restrictions” imposed upon him at CUCF. Bennett’s parents succeeded in providing him a copy of the order on May 4, and he filed his motion for enlargement of time one week later.

At ¶ 6.

Bennett challenges the district court’s denial of his motion for relief under rule 4(e) of the Utah Rules of Appellate Procedure, arguing that the district court erred by disregarding several factors supporting a finding of good cause or excusable neglect. See generally Utah R. App. P. 4(e). Specifically, Bennett argues that Respondents’ failure to serve him with a copy of the dismissal order in violation of civil rule 58A(d), see Utah R. Civ. P. 58A(d) (“A copy of the signed judgment shall be promptly served by the party preparing it . . . .”), along with his own efforts to perfect his appeal despite his incarceration and alleged restricted status, demonstrate both good cause and excusable neglect. Both Bennett and Respondents invite us to make our own determination of whether Bennett is entitled to relief under rule 4(e). We decline those invitations, but we conclude that under the circumstances the district court failed to support its denial of Bennett’s motion with adequate factual findings and analysis.

At ¶ 9.

Rule 4(e) provides that the district court may extend the time for filing a notice of appeal “upon a showing of excusable neglect or good cause.” Utah R. App. P. 4(e).  Generally speaking, “[e]xcusable neglect ‘is an admittedly neglectful delay that is nevertheless excused by special circumstances,’ whereas good cause ‘pertains to special circumstances that are essentially beyond a party’s control.’” Serrato, 2000 UT App 299, ¶ 7 (quoting Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 13, 2 P.3d 447).

At ¶ 10.

Utah case law has identified four factors of general relevance to a determination of excusable neglect: “‘[i] the danger of prejudice to [the nonmoving party], [ii] the length of the delay and its potential impact on judicial proceedings, [iii] the reason for the delay, including whether it was within the reasonable control of the movant, and [iv] whether the movant acted in good faith.’” Reighard, 2012 UT 45, ¶ 17 (alterations in original) (quoting Serrato, 2000 UT App 299, ¶ 9). Nevertheless, “[t]he equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.” Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d 859.

At ¶ 11.

Despite this mix of “aspects both within and beyond the moving party’s control,” Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 14, 2 P.3d 447, the district court provided no explanation of which test it was applying to each factor, nor did it make factual findings in support of its denial of Bennett’s motion. Instead, the district court stated merely that it was acting after “[h]aving carefully reviewed all of the pleadings submitted by both parties, being fully advised in the premises, and good cause appearing.”4 This boilerplate language provides us with no basis upon which to evaluate whether the district court applied the appropriate standard to the various factors within and beyond Bennett’s control or to provide “meaningful appellate review” of the district court’s decision. See Busche v. Busche, 2012 UT App 16, ¶ 26, 272 P.3d 748; cf. Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 20, 243 P.3d 1275 (“The only reasoning given in the order is that the district court denied leave based on the oral arguments, the briefs, and for good cause. This level of detail is simply insufficient to permit meaningful appellate review.”); Busche, 2012 UT App 16, ¶ 26 (“To allow meaningful appellate review, . . . the decision to award attorney fees must be supported by detailed findings of fact.”).

At ¶ 16.

In sum, the district court’s order denying Bennett’s rule 4(e) motion is “simply insufficient to permit meaningful appellate review,” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 20, 243 P.3d 1275, and we cannot say with any certainty that the district court acted within its admittedly broad discretion in denying Bennett’s motion. However, we are also not in the position to make our own determination that Bennett’s motion should have been granted or denied. Under these circumstances, we reverse the district court’s order denying Bennett’s motion and remand this matter for further proceedings.

At ¶ 21.

Phillips v. South Jordan City, 2013 UT App 183, No. 20110895-CA (July 26, 2013)

ISSUE: Appellate Review of Employment Termination, Abuse of Discretion

Judge Thorne,

Petitioner Rion Phillips seeks judicial review of the South Jordan City Appeal Board’s (the Board) decision affirming South Jordan City Police Chief Lindsay Shepherd’s termination of Phillips’s employment with the South Jordan City Police Department. We decline to disturb the Board’s decision.

At ¶ 1.

The Court reviews the factual background regarding Phillips’ termination.

At ¶¶ 2-6.

Phillips first argues that the Board erred in upholding Chief Shepherd’s determination that Phillips operated his vehicle in violation of General Order 41.2.1 during his June 2 emergency response. Phillips asserts that the Board abused its discretion because General Order 41.2.1 does not identify a specific or maximum speed limit for an emergency response.

At ¶ 9.

Phillips is correct that General Order 41.2.1 does not identify a specific maximum speed. This does not, however, mean that there are no limits upon his speed when responding to a call. Instead, Phillips’s maximum speed is specifically limited by the provision requiring him to limit his speed by road and weather conditions, ability to stop at intersections with a semaphore or stop sign, and to drive with due regard for the safety of all persons. In this instance there is sufficient evidence to support the Board’s finding that Phillips violated this policy by responding to an emergency without “due regard for the safety of all persons” as required by General Order 41.2.1 by driving at excessive speeds, i.e., speeds well in excess of 100 mph.

At ¶ 11.

. . . Because the evidence adequately supports the Board’s decision to affirm Phillips’s termination based on his violation of General Order 41.2.1, we conclude that the Board did not abuse its discretion in this regard.

At ¶ 12.

. . . Because the evidence demonstrates that Phillips was trained in the policies outlined in General Order 41.2.1, we see no abuse of discretion in the Board’s determination that Phillips violated said order.

At ¶ 14.

Phillips next argues that the Board erred in concluding that the City’s termination of Phillips’s employment was proportionate to his allegedly unreasonable conduct and consistent with sanctions imposed on other officers in similar circumstances. We review both the proportionality and consistency aspects of the Board’s determination for an abuse of discretion. Nelson v. Orem City, Dep’t of Pub. Safety, 2012 UT App 147, ¶ 16, 278 P.3d 1089, cert. granted, 288 P.3d 1045 (Utah 2012).

At ¶ 15.

Because Phillips’s argument contains only conclusory statements and fails to fully develop his argument with a discussion on why the remaining five incidents are insufficient to support the City’s termination of Phillips, or even why the other three did not implicate bad judgment, he does not convince us that the City’s termination of his employment was disproportionate to his conduct.

At ¶ 17.

Phillips also asserts that the City’s termination of his employment is inconsistent with sanctions imposed on other officers in similar circumstances. In so arguing, Phillips describes instances of conduct by six other officers, which resulted in lesser discipline than Phillips’s termination. Phillips does not, however, include in his proportionality of discipline analysis the performance histories or length of service with the City for each of the six officers, which information may explain or justify the lesser discipline. And, as the City points out, in at least one instance, Phillips fails to include a fully accurate disciplinary record for one of the officers, Officer Brett Perez, who was terminated for allegedly violating the City’s high-speed chase policy.

At ¶ 18.

In re A.T. and J.B.J., 2013 UT App 184, No. 20120329-CA (July 26, 2013)

ISSUES: Reunification Services for an Incarcerated Parent.

Judge Thorne,

L.G. (Mother) appeals the juvenile court’s termination of her parental rights in A.T. and J.B.J. (the Children). Mother argues that she is entitled to reunification services pursuant to Utah Code section 78A-6-312(25)(a). . . .  We reverse and remand.

At ¶ 1.

Mother argues that she is entitled to reunification services because the juvenile court failed to comply with Utah Code section 78A-6-312(25)(a), which section provides that when a parent is incarcerated, “the court shall order reasonable services unless it determines that those services would be detrimental to the minor.” Utah Code Ann. § 78A-6-312(25)(a) (LexisNexis 2012). Mother also argues that the juvenile court erred by failing to order reasonable reunification services. A decision to order reunification services lies within the sound discretion of the juvenile court. See In re N.R., 967 P.2d 951, 956 (Utah Ct. App. 1998). Accordingly, we review the juvenile court’s decision not to order reunification services for an abuse of discretion. However, “we review the district court’s decision for correctness to the extent it involves questions of statutory interpretation” of section 78A-6-312(25). Diener v. Diener, 2004 UT App 314, ¶ 4, 98 P.3d 1178 (citation and internal quotation marks omitted).

At ¶ 7.

Mother asserts that the juvenile court erred in determining that she was not entitled to reunification services because at the time of the Children’s removal Father was the custodial parent and Mother was serving a long-term prison sentence. Specifically, Mother argues that the juvenile court was required, under Utah Code section 78A-6-312(25)(a), to order reasonable services to her while she was in prison unless the court “determine[d] that those services would be detrimental to the [Children].” See Utah Code Ann. § 78A-6-312(25)(a). Mother contends that because the juvenile court had not determined that reunification services would be detrimental to the Children, it erred in deciding that she was not entitled to services while in prison.

At ¶ 8.

Relying on the plain language of the statute, we agree with Mother that the statute requires the juvenile court to order reasonable services to Mother unless it makes an actual determination that those services would be detrimental to the Children. Utah Code section 78A-6-312(25)(a) expressly states that “the court shall order reasonable services unless it determines that those services would be detrimental to the minor.” Utah Code Ann. § 78A-6-312(25)(a) (LexisNexis 2012) (emphases added).

At ¶ 12.

Considering the factors in subsection (25)(b), without making an actual determination, does not comport with the plain language requirement of subsection (25)(a) that the court “shall order reasonable services unless it determines that those services would be detrimental to the minor.”

At ¶ 13.

Judge David (concurring in part and dissenting in part),

Under the facts and circumstances of this case, the juvenile court made more than adequate findings to support that determination. I would exercise this court’s power to modify the juvenile court’s order accordingly, rather than reverse and remand for further proceedings. See Utah R. App. P. 30(a) (“The court may reverse, affirm, modify, or otherwise dispose of any order or judgment appealed from.”).

At ¶ 17.

McCleve Properties v. D. Ray Hult Family, 2013 UT App 185, No. 20110594-CA (July 26, 2013)

ISSUES: Waiver of Contractual Rights; Damages

Judge Roth,

D. Ray Hult Family Ltd. Partnership and D. Ray Hult (collectively, Hult) appeal from the district court’s entry of partial summary judgment in favor of McCleve Properties, LLC (McCleve) and its subsequent award of income tax-related damages to McCleve. McCleve cross-appeals, asserting that the district court erroneously denied its request for additional damages for loss of use and delayed amortization. We affirm the grant of summary judgment and the district court’s denial of loss of use and amortization damages. We reverse the award of tax-related damages and remand for further proceedings consistent with this decision.

At ¶ 1.

The Court reviews the background of the case.  Specifically, the terms of the lease agreement between Hult and Marshall; Marshall’s unapproved assignment of the option to purchase to McCleve, Hult’s letters regarding McCleve’s exercise of that option; Hult’s later refusal to sell the property; the trial court’s determination that Hult waived strict compliance with the terms of the lease agreement; the trial court’s award of summary judgment and order for specific performance; and the challenged damages determinations.

At ¶ 2-8.

“‘A waiver is the intentional relinquishment of a known right. To constitute waiver, there must be [(1)] an existing right, benefit or advantage, [(2)] a knowledge of its existence, and [(3)] an intention to relinquish it.’” Geisdorf v. Doughty, 972 P.2d 67, 72 (Utah 1998) (quoting Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 940 (Utah 1993)). A waiver may be express or implied, but it must be distinctly made under the totality of the circumstances. Id. In the contract context, a waiver “occurs when a party to a contract intentionally acts in a manner inconsistent with its contractual rights, and, as a result, prejudice accrues to the opposing party or parties to the contract.” Mid– America Pipeline Co. v. Four–Four, Inc., 2009 UT 43, ¶ 17, 216 P.3d 352 (citation and internal quotation marks omitted). The Utah Supreme Court, however, has cautioned “trial courts to be especially careful in their examination of the evidence in questions of waiver and option performances, especially where . . . waiver is merely implied.” Geisdorf, 972 P.2d at 72. Nevertheless, even though the optionee ordinarily must act “precisely according to the terms of the option” when it seeks to exercise a purchase option, id. at 70 (citation and internal quotation marks omitted), strict compliance may be excused by the optionor’s waiver so long as that waiver is distinctly made in a manner that is “unambiguous,” id. at 72.

At ¶ 10.

[W]e are presented with a question of whether Hult’s unambiguous acceptance of the Marshall letter assigning the Lease purchase option to McCleve and the McCleve letter’s terms for exercising that option can be overcome by Hult’s purported lack of actual intention to waive strict compliance with the Lease terms. See generally id. (requiring a waiver to be intentional, although it may be implied).

At ¶ 11.

The Court determines that Hult cannot rely on an affidavit stating that it did not know what the contract terms provided as evindence that they did not relinquish a known right because parties are deemed to have knowledge of the contents of their contracts, especially sophisticated parties.

At ¶¶ 12-13.

“as a result” of Hult’s unambiguous acceptance of McCleve’s terms for exercise of the purchase option, which did not conform to the requirements of the Lease, “prejudice accrue[d] to” McCleve when Hult later attempted to enforce the Lease as written. See id. Under these facts, the district court correctly determined that Hult had waived its right to strictly enforce the pertinent Lease provisions. Waiver eliminated Hult’s defense to McCleve’s breach of contract claims, rendering summary judgment in favor of McCleve appropriate. We therefore affirm the district court’s summary judgment in favor of McCleve and denial of Hult’s motion for summary judgment.

At ¶ 14.

Damages

Hult contends that the district court erred in awarding McCleve $52,096 in general damages for income taxes it owed as a result of the failed tax-deferred section 1031 exchange. Hult argues that such damages were not general damages, but consequential damages, which required a showing by McCleve that the damages were “within the contemplation of the parties at the time they contracted,” see Castillo v. Atlanta Gas Co., 939 P.2d 1204, 1209 (Utah Ct. App. 1997) (citation and internal quotation marks omitted). Hult contends that “any damages flowing from the failed exchange could not have been contemplated by the parties to the contract” because “the purported assignee of the contract wasn’t a party to the agreement when it was entered.” McCleve does not challenge Hult’s contention that the income tax liability it incurred was more in the nature of consequential damages than general damages, but it nevertheless contends that the award was proper because Hult was told that McCleve planned to acquire the Premises as part of a section 1031 exchange when McCleve notified Hult of its intent to exercise the purchase option.

At ¶ 16.

Therefore, to recover its tax losses as consequential damages, McCleve had to prove “(1) that [the tax loss] damages were caused by the contract breach; (2) that [those] damages ought to be allowed because they were foreseeable at the time the parties contracted; and (3) the amount of consequential damages within a reasonable certainty.” See Mahmood v. Ross, 1999 UT 104, ¶ 20, 990 P.2d 933. Although the briefing suggests that McCleve satisfied its burden as to the first and third factors, the parties present conflicting facts on the question of whether McCleve’s tax liability was foreseeable at the time the parties contracted. See Ranch Homes, 592 P.2d at 624 (explaining that for damages to be foreseeable, “[m]ere knowledge of possible harm is not enough; the defendant must have reason to foresee, as a probable result of the breach, the damages claimed”). And because the district court awarded the tax liability as general damages, it did not undertake any analysis of foreseeability in its written minute entries or order regarding damages. Without any findings relating to the foreseeability of the tax consequences if Hult failed to perform the purchase option agreement, this court is not equipped to assess the propriety of the award for tax liability as consequential damages. Accordingly, we remand the case to the district court for the limited purpose of assessing whether McCleve’s tax liability as a consequence of the failed 1031 exchange ought to be assessed against Hult as consequential damages.

At ¶. 18.

The Court declines to provide direction to the trial court on the issue of “when the contemplation of tax consequences from a failed option contract had to occur in order to meet the foreseeability prong of the consequential damages analysis” because the parties did not brief it.

At ¶ 19.

McCleve now challenges the district court’s ruling on the basis that its [consequential damages for loss of rents] were foreseeable at the time the contract was made and reasonably certain. The district court’s ruling, however, rejected McCleve’s claim not because the loss of use damages it claimed were not recoverable as consequential damages, but because McCleve failed to provide an evidentiary foundation for those damages. Because McCleve failed to challenge the basis of the court’s ruling and because such an evidentiary decision appears to be within the court’s discretion, we affirm the court’s denial of the loss of use damages.

At ¶ 21.

Finally, McCleve contends that the district court inappropriately denied its claim for consequential damages resulting from the loss of amortization benefits it would have enjoyed had the sale occurred in March 2007 rather than sixteen months later as it actually did. . . . McCleve, however, has not lost any of the benefit of amortization but merely has had the benefit delayed, i.e., it reduced the loan balance and built up equity between July 2008 and November 2009 as it would have between March 2007 and July 2008. Even if such damages were recoverable in principle, an issue that we do not decide, McCleve did not provide any evidence to the district court to demonstrate any loss caused by the delay, for example that the later interest rate was higher or even that there was a net loss based on present value principles. We therefore affirm the district court’s denial of amortization damages.

At ¶ 22.

State v. Beckstrom, 2013 UT App 186, No. 20111081-CA (July 26, 2013)

ISSUE: Waiver of appeal on stipulated facts regarding complete restitution

Judge Christiansen,

Defendant Tanga Beckstrom appeals from an order of restitution entered after her felony conviction for driving under the influence of alcohol (DUI) that resulted in serious bodily injury to another.  We affirm.

At ¶ 1.

Defendant plead guilty and “was sentenced to probation for thirty six months, a jail term of 180 days, and a fine of $2,883. The issue of restitution was to be “held open.”

At ¶ 4.

At the June 16 restitution hearing, Defendant, acting on the advice of Trial Counsel, stipulated to complete restitution in the amount of $5,442.24 for Wife and $92,036.03 for Husband. The court then scheduled a review hearing to determine the amount of court-ordered restitution and instructed Defendant to complete a financial affidavit in preparation for that hearing.

At ¶ 5.

Prior to the review hearing, Defendant filed a motion to reconsider and vacate the order of complete restitution. Defendant argued that despite her stipulation, the complete restitution order violated her due process rights because it was an unconstitutional taking and because it became a civil judgment against her even though a determination of comparative fault was never made. On November 17, 2011, the day of the restitution review hearing, the trial court denied Defendant’s motion to vacate, thereby binding her to the stipulated amount. In addition, the court ruled that based on the evidence presented at the hearing, Defendant was capable of paying $300 per month in court-ordered  restitution over the course of her probation. The court also extended Defendant’s probationary period to ninety-six months. Thus, the court’s amended order of restitution required Defendant to pay court-ordered restitution in the amount of $28,800, with $1,607 to be paid to Wife and $27,193 to be paid to Husband. Defendant appeals.

At ¶ 6.

Defendant is estopped from raising her complete restitution claims on appeal because she stipulated to the amount of complete restitution and did not properly challenge the trial court’s denial of her motion to vacate that stipulation. . . . Thus, “[a] party who stipulates to a court’s actions ‘may not . . . complain about them on appeal.’” Prinsburg State Bank, 2012 UT 94, ¶ 13 (omission in original) (quoting DLB Collection Trust v. Harris, 893 P.2d 593, 595 (Utah Ct. App. 1995)).

At ¶ 9.

There are instances where a trial court “may exercise its discretion to set aside a stipulation,” assuming certain conditions are met. Prinsburg State Bank, 2012 UT 94, ¶ 14. “‘First, the party seeking relief from the stipulation must request it by motion from the trial court. Second, the motion . . . must be timely filed. Third, [the motion] must show that the stipulation was entered into inadvertently’ or that it should be set aside ‘for justifiable cause.’” Id. (omission in original) (quoting Yeargin, 2001 UT 11, ¶ 21). A finding of inadvertence or justifiable cause is available only “‘if the mistake is not due to failure to exercise due diligence and it could not have been avoided by the exercise of ordinary care.’” Id. (quoting Rivera, 2000 UT 36, ¶ 11). However, “‘it is unlikely that a stipulation signed by counsel and filed with the court was entered into inadvertently.’” Id. (quoting Yeargin, 2001 UT 11, ¶ 21).

At ¶ 11.

“It is well settled that ‘issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.’” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (quoting Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540); see also Utah R. App. P. 24(c) (“Reply briefs shall be limited to answering any new matter set forth in the opposing brief.”).  Because Defendant did not properly appeal the court’s denial of her motion to vacate, we decline to consider whether justifiable cause existed to set aside her stipulation

At ¶ 12.

The Court reviews Defense counsels actions in advising Defendant to stipulate to the amount of complete restitution and finds that counsel’s conduct was not deficient.

At ¶¶ 13-18

Utah Code section 77-38a-302(5)(c) lists factors that courts “shall consider” in “determining the monetary sum and other conditions for court-ordered restitution.” Utah Code Ann. § 77-38a-302(5)(c). These factors include

(i) the financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant;

(ii) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;

(iii) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and

(iv) other circumstances which the court determines may make restitution inappropriate.

At ¶ 19.

The Court reviews the trial court’s court-ordered restitution determination and finds that it was not an abuse of discretion.

At ¶¶ 20-21.

Wintle-Butts v. CSRO, 2013 UT App 187, No. 20110574-CA (July 26, 2013)

ISSUE: Career Service Review Office’s Jurisdiction

Judge Christiansen,

Petitioner Dori Wintle-Butts seeks review of the Career Service Review Office (CSRO) Administrator’s (the Administrator) determination that CSRO lacked jurisdiction to consider Wintle-Butts’s employment grievance. We approve the Administrator’s decision.

At ¶ 1.

The Court outlines the background of this case.  Specifically, Petitioner’s obtaining employment with DTS, Petitioner’s receiving notice that she was being placed on paid administrative leave because she failed a background check, Petitioner’s request to be transferred back to her old position, Petitioner’s request for review of DTS’s determination that she could not hold her position with DTS, and the CSRO’s determination that it did not have jurisdiction over the matter because Petitioner transferred to her old position.

At ¶¶ 2-6.

 The scope of CSRO’s authority to review grievances is strictly limited to the personnel matters enumerated in Utah Code section 67-19a-202(1)(a). Id. § 67-19a-202(1)(b) (“The office may not review or take action on . . . a personnel matter not listed in Subsection (1)(a) . . . .”). CSRO may therefore review only grievances founded upon

(i) a dismissal;

(ii) a demotion;

(iii) a suspension;

(iv) a reduction in force;

(v) a dispute concerning abandonment of position;

(vi) a wage grievance if an employee is not placed

within the salary range of the employee’s current position;

(vii) a violation of a rule adopted under Chapter 19,

Utah State Personnel Management Act; or

(viii) [the equitable administration of certain benefits].

Id. § 67-19a-202(1)(a). Because CSRO is a tribunal of limited subject matter jurisdiction, Wintle-Butts bore the burden of “present[ing] sufficient facts to invoke the limited jurisdiction of [CSRO].” See Olson, 2009 UT App 303, ¶ 13 (citation and internal quotation marks omitted). Wintle-Butts now argues that CSRO has jurisdiction because she was either demoted or dismissed by DTS, or because DTS violated a rule guaranteeing to her certain procedural rights.

At ¶ 12.

We agree with the Administrator that Wintle-Butts’s transfer back to DHS fits squarely within the agency’s definition of a transfer and was not a disciplinary action taken by DTS under R477-11.  See id. R477-1-1(36). Indeed, Wintle-Butts’s request to transfer back to DHS was not in any sense an action “taken by management” and therefore cannot be the basis for a demotion. See id. R477-1-1(31), (36). Wintle-Butts also repeatedly argued to the Administrator that she was not grieving her transfer back to DHS,but was grieving only what she then characterized as her dismissal from DTS. For purposes of Wintle-Butts’s demotion argument, we therefore consider only the action taken by DTS—placement of Wintle-Butts on paid administrative leave.

At ¶ 15.

Wintle-Butts contends that DTS’s action in placing her on administrative leave when she failed her background check was disciplinary because the action was taken when she no longer met the requirements of her position. See Utah Admin. Code R477-11-1(1) (“Agency management may discipline any employee for . . . no longer meet[ing] the requirements of the position . . . .”). Indeed, disciplinary action is defined as “[a]ction taken by management under Rule R477-11.” Id. R477-1-1(36). However, placement on paid administrative leave is not one of the disciplinary actions provided for in R477-11, but rather administrative leave is governed by R477-7-7. Compare id. R477-11-1(4)(a)–(d) (providing for disciplinary action by reprimand, suspension without pay, demotion, or dismissal), with id. R477-7-7(1), (1)(a)(iv), (1)(b)(v) (providing for paid administrative leave for reasons “consistent with agency policy”). Moreover, in his letter placing Wintle-Butts on paid administrative leave, Wintle-Butts’s supervisor specifically explained, “This leave is in accordance with [rule] R477-7-7.”

At ¶ 16.

Wintle-Butts argues that the denial letter from the Director proves that DTS’s actions were disciplinary because the letter refers to R477-11 and states that Wintle-Butts “no longer meet[s] the requirements of the position.” We do not agree that the letter conclusively demonstrates that Wintle-Butts was subject to disciplinary action. Rather, the letter explains the Director’s view that any procedural errors in the handling of Wintle-Butts’s conditional employment with DTS were moot because Wintle-Butts “no longer [met] the requirements of the position” under R477-11. However, this recognition by the Director that Wintle-Butts could have been disciplined under R477-11 does not demonstrate that she was disciplined. See Utah Admin. Code R477-11-1(1) (“Agency management may discipline any employee for . . . no longer meet[ing] the requirements of the position . . . .” (emphasis added)). Rather, Wintle-Butts’s supervisor indicated that Wintle-Butts was placed on leave in accordance with R477-7-7 and made no mention of disciplinary action or R477-11. Because the evidence Wintle-Butts has advanced does not demonstrate otherwise, we conclude that her placement on administrative leave was not an action taken by management under R477-11. Accordingly, Wintle-Butts has failed to demonstrate that she was subject to a “disciplinary action” within the meaning of Utah Administrative Code R477-1-1(36).

At ¶ 17.

The record also shows that DTS’s placement of Wintle-Butts on paid administrative leave did not result “in a reduction of [Wintle-Butts]’s current actual wage.” See id. R477-1-1(31). Wintle-Butts’s hourly rate was increased to $46.27 on September 20, 2010, when she transferred to DTS. Her hourly rate was not reduced until September 28, 2010, when she transferred back to DHS. It does not appear from the record that DTS’s placement of Wintle-Butts on paid administrative leave on September 23, 2010, had any effect on her then-current actual wage, and she has introduced no evidence to the contrary. Thus, Wintle-Butts cannot demonstrate that DTS’s actions resulted in a reduction of her then-current actual wage.

At ¶ 18.

Because Wintle-Butts has not demonstrated either that she was subject to disciplinary action or that such action resulted in a reduction in her current actual wage, we conclude that Wintle-Butts was not demoted when DTS placed her on paid administrative leave. Thus, the Administrator did not err in determining that Wintle-Butts was not demoted, and that CSRO did not have jurisdiction over Wintle-Butts’s grievance on this basis.

At  ¶ 19.

DiMeo v. Nupetco Associates, 2013 UT App 188, No. 20120395-CA (July 26, 2013)

ISSUES: Statute of Limitations of Security of a Note; Foreclosure on a Trust-Deed

Judge Orme,

Nupetco Associates, LLC (Nupetco) appeals rulings by the district court granting partial summary judgment in favor of Diane DiMeo, denying Nupetco’s motion for partial summary judgment, and dismissing its counterclaim. The case revolves around a trust deed conveyed over thirty years ago by DiMeo’s predecessors in interest, who died in 1987. We reverse and remand for further proceedings.

At ¶ 1.

A trust deed secures the obligations due under a note by transferring a security interest in real property to a trustee to be held until the debt is repaid. Utah Code Ann. § 57-1-19 (LexisNexis 2010); First Sec. Bank of Utah, NA v. Banberry Crossing, 780 P.2d 1253, 1256 (Utah 1989). In other words, the pledged property is used as collateral for the obligation and can be foreclosed in the event of default. See Black’s Law Dictionary 476 (9th ed. 2009); Restatement (Third) of Property: Mortgages Introduction (1997). Here, Michael has failed to meet his obligations under the note now held by Nupetco—a note secured by a trust deed that grants a security interest in the property formerly owned by Vern and Eleanor and now owned by Eleanor’s estate. Because Michael has failed to repay the loan, Nupetco is entitled to foreclose the trust deed. Indeed, this is the remedy the law requires Nupetco to pursue because the “one action” or “security first” rule prevents Nupetco from pursuing a judgment against Michael personally until the security interest in real property has been first applied against the amount due. See Utah Code Ann. § 78B-6-901(1)

At ¶ 7.

DiMeo does not dispute these general precepts but argues that the district court was correct in denying Nupetco summary judgment because it determined that the trust deed was unenforceable. The district court arrived at this conclusion by first determining that the statute of limitations barred Nupetco from seeking a remedy against Vern and Eleanor personally. The court pointed to Holloway v. Wetzel, 45 P.2d 565 (Utah 1935), which states that “a part payment . . . by one of two or more joint and several obligors does not of itself suspend the running of the statute of limitations against the other co-obligor.” Id. at 568. The district court concluded that under Holloway, Michael Strand’s periodic and continued payments on the note did not suspend the six-year statute of limitations as to Vern and Eleanor, and that because neither Vern nor Eleanor ever made any payment, the ability of Nupetco to recover against them expired, at the latest, in 1998. We agree with the district court’s conclusion that Nupetco’s ability to obtain a deficiency judgment against Vern, Eleanor, or their estates has long since expired due to their longstanding failure to make any payments due under the note. While some may have misgivings about the continued relevance of a Depression-era case in adjusting the rights as between co-obligors, it appears that Holloway is still good law and that it was applied correctly by the district court to excuse Vern, Eleanor, and their estates from any personal liability for the amounts due under the note. Our agreement with the district court’s analysis, however, ends there.

At ¶ 8.

The surety issue seized upon by the district court simply does not hold water. Neither the district court nor DiMeo cite any legal precedent to support the conclusion that when the statute of limitations ran, Vern’s and Eleanor’s legal status changed from that of obligors to sureties—a change that would have occurred outside of any writing and after the couple’s death. The district court’s analysis is at odds with the basic maxim of contract interpretation, namely that contracts are interpreted in accordance with the plain meaning of their terms, absent some ambiguity. See, e.g., Central Florida Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599 . . . The trust deed does not mention or contemplate any type of suretyship. See 74 Am. Jur. 2d Suretyship § 9 (2012) (“[T]o determine suretyship status, the court first looks to the substance of the entire transaction rather than its form. Generally, an agreement of suretyship must be in writing and must be explicit.”). More fundamentally, neither DiMeo nor the district court explains how the mere fact that some obligors on the note can no longer be held personally liable undercuts the continued vitality of the trust deed as security for the note. It is clear to us that the running of the statute of limitations only prevents Nupetco from imposing liability on Vern and Eleanor personally for amounts still due after the security is sold and the proceeds applied to the debt. It had no legal effect on the pair’s status as co-obligors on the note, much less did it transform them into sureties.

At ¶ 9.

[H]aving determined that the district court erred in ruling that Vern and Eleanor had become sureties and that the trust deed was unenforceable, we conclude that the dismissal of the counterclaim was also in error. Because the trust deed can still be foreclosed—and must be before Nupetco may seek a deficiency judgment against Michael—both Michael’s liability and foreclosure of the trust deed were absolutely relevant, and the answer and counterclaim should not have been dismissed. And the amendment sought by Nupetco should have been permitted.

At ¶ 10.

Collins v. State, 2013 UT App 189, No. 20120664-CA (July 26, 2013)

ISSUE: Retroactive application of Padilla for Post Conviction Relief.

Per Curiam,

The State of Utah appeals the denial of its motion to dismiss a petition for post-conviction relief as untimely and the subsequent grant of that petition, which vacated two 1996 convictions. This case is before the court on the State’s motion to summarily reverse both the denial of its motion to dismiss the petition as untimely and the grant of post-conviction relief.

At ¶ 1.

When Collins filed his post-conviction petition, it was an open question whether Padilla applied retroactively to persons whose convictions became final before Padilla was decided. Chaidez v. United States, 133 S. Ct. 1103 (2013), resolved that issue. The Chaidez decision states that “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 133 S. Ct. at 1107. The United States Supreme Court determined in Chaidez that “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment” announced a new rule that was not dictated by existing precedent. See id. at 1111. Therefore, Collins was not entitled to bring a post-conviction petition under the PCRA after Padilla because that decision was not based upon precedent existing at the time his convictions became final. See Collins v. State, 2013 UT App 182, ¶ 3; see also Utah Code Ann. § 78B-9-104(1)(f)(i). Furthermore, Collins was not entitled to postconviction relief under Padilla because Chaidez held that Padilla does not have retroactive application to convictions that became final before Padilla was decided. See Chaidez, 113 S.Ct. at 1113.

At ¶ 3.

Collins argues that there is a basis in Utah law for retroactive application of the Padilla decision. This argument was not raised before the post-conviction court and is not appropriately before this court. See id.; Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259.

At ¶ 4.