Warner v. Warner, 2013 UT App 225, No.
20110078-CA (September 19, 2013)
ISSUES:
Subject Matter Jurisdiction, Correction of Proposed Orders, Bad Faith Attorneys
Fees, Briefing Appeals.
Judge
Roth,
This
appeal arises from litigation that has been ongoing for more than fifteen years
over a family trust. The Defendants Albert “Skip” Heber Warner Jr. (Skip),
Vernon S. Warner, and Valeen W. Peterson (collectively, the Trustees) appeal
from the district court’s order that certain trust property be removed from the
trust. They also challenge the court’s decision to require the Trustees to pay
some of the Plaintiffs’ attorney fees, as well as the court’s denial of their
own requests that their attorney fees be paid by the Plaintiffs, rather than by
the trust. The Plaintiffs Charles Albert Warner, Alan Smith Warner, and Theron C. Warner (collectively,
the Beneficiaries) cross-appeal
the district court’s grant of summary judgment to the Trustees on all of the
Beneficiaries’ claims and the court’s denial of the Beneficiaries’ subsequent
motions to amend their pleadings. We reverse the district court’s order that
the Trustees remove what the parties refer to as the Smith Property from the
trust and the court’s denial of that portion of the Beneficiaries’ last motion
to amend related to the Smith Property and remand for further consideration. We
affirm on all other issues.
At ¶
1.
The
Court outlines the factual and procedural background of this case. The facts outlined are mostly procedural
At ¶¶
2-13.
The
Court outlines the issues presented and the standards of review.
At ¶¶
14-18.
Jurisdiction over the Trust dispute
The
Trustees contend that the district court erred in ordering that they divest the
Smith Property because the court no longer had subject matter jurisdiction
after it denied the Beneficiaries’ third motion to amend the pleadings in May
2009. The Trustees rely on the fact that all of the causes of action the
Beneficiaries raised in their original complaint had already been resolved on
summary judgment and all of the Beneficiaries’ subsequent motions to amend the
complaint to include a claim to remove the Smith Property from the Trust had
been denied.
At ¶
19.
Resolution
of disputes regarding trust administration fall within the district court’s
original jurisdiction. Utah Code Ann. § 75-1-302(1)(c) (Michie 1993) (“[T]he
court has jurisdiction over all subject matter relating to . . . trusts.”). The
district court therefore had subject matter jurisdiction over the
Beneficiaries’ trust claim with regard to the Smith Property. But “[t]he
concept of subject matter jurisdiction does not embrace all cases where the
court’s competence is at issue.” Johnson, 2010 UT 28, ¶ 9; see also
In re Adoption of Baby E.Z., 2011 UT 38, ¶ 31, 266 P.3d 702 (“[T]he concept
of subject matter jurisdiction [is limited] to those cases in which the court
lacks authority to hear a class of cases, rather than when it simply lacks the
authority to grant relief in an individual case.”). The question before us then
is whether the Smith Property claim was ever properly brought within the scope
of the issues actually before the court for resolution.
At ¶
21.
The
Beneficiaries made a motion to amend the complaint that, if granted, permitted
the district court to allow the Trust. If the court denied the motion,
however—as it certainly appeared to do at the May 2009 hearing—then there was
no claim before the court over which it could exercise authority to provide the
requested relief. Yet the court did in fact provide the relief the Beneficiaries
requested when it ultimately ordered the Trustees to divest the Trust of the
Smith Property. In so doing, it appears that the court fashioned a practical
solution to the quandary created by the Trustees’ misrepresentation during the
May 2009 hearing that the Smith Property was not held in the Trust, a
misrepresentation on which the court appeared to have based its earlier
decision to deny the Beneficiaries’ motion to amend. Essentially, the court
told the Trustees to make their misrepresentation true by doing “whatever
you’ve got to do to get that Smith [Property] out of there.”
At ¶
22.
The
court’s decision, however, bypassed an important mechanism of the judicial
system, which requires a demonstration of the merits of a claim through the
adversary process before relief can be granted. This omission was prejudicial
because the Trustees assert that notwithstanding the Trust provision that “all
assets, except [the eighty‐acre recreational property and the
securities] . . . be divided into equal shares and distributed,” another
provision of the Trust endowed the Trustees with certain “powers over
investments,” including the right “to retain any asset or property received by
[the Trust] at any time from any source” for investment purposes. (Emphasis
added.) The Trustees thus claim that the Trust, read more broadly, permits
retention of the Smith Property. But this issue was never taken up by the
district court because it was never made a part of the proceedings through the
process initiated by the Beneficiaries, i.e., amendment of their complaint. The
mechanisms of due process set out in our rules of civil procedure were thus
never put into play; rather, the court simply ordered the Smith Property
divested, essentially without a hearing on the merits or any of the other
procedures our rules provide for the orderly resolution of disputes. While the
complicated dynamics in which the order of removal occurred might explain the
omission, they cannot legally justify it. We therefore remand this issue to the
district court to determine whether it should have granted the motion to amend,
given that the Smith Property appeared to have remained in the Trust contrary
to counsel’s representations, or whether it is still properly denied.
At ¶
23.
Court’s inherent powers to correct
proposed orders
The
Trustees contend that the court erred by—implicitly—granting the Beneficiaries’
motion to enlarge the time for filing their objection when it ruled on the
Beneficiaries’ objections to the Trustees’ proposed order on the May 2009 oral
ruling.10 The Beneficiaries
originally responded to the June 5, 2009 proposed order on June 18, after the
five-day period for objecting to a proposed order had expired. See Utah
R. Civ. P. 7(f)(2) (requiring any “[o]bjections to . . . be filed within five
days after service” of the proposed order). They filed a motion to enlarge time
on June 24 that outlined the reasons for the Beneficiaries’ delayed response to
the Trustees’ proposed order and requested an extension
until June 30 to file a timely objection. Their June 30 objection addressed
more fully the Beneficiaries’ concerns with the proposed order, including the
order’s statement that the Trust properly held the Smith Property and its award
of attorney fees to the Trustees. The Trustees assert that neither the motion
to enlarge nor the objection demonstrated excusable neglect to justify
extending the time period for filing an objection.
At ¶
26.
The
Trustees’ focus on details of the requirements for a motion for enlargement of
time misses the larger point: A judge has the inherent authority to ensure that
his or her rulings are accurately memorialized and can correct misstatements of
those rulings at any time, no matter how the error might come to his or her
attention. All courts of general jurisdiction have the discretionary authority
“to make, modify, and enforce rules for the regulation
of the business before the court, . . . to recall and control its process, to
direct and control its officers, including attorneys as such,” for the purposes
of “maintain[ing] and protect[ing] the integrity and dignity of the court, . .
. secur[ing] obedience to its rules and process, and . . . rebuk[ing] interference
with the conduct of its business.” Barnard v. Wassermann, 855 P.2d 243,
249 (Utah 1993) (first omission in original) (emphasis omitted) (citation and
internal quotation marks omitted).
At ¶
27.
The
court’s decision to correct the order despite the untimeliness of the
Beneficiaries’ objection seems to be a quintessential exercise of the inherent
power of the court “to maintain and protect the integrity and dignity of the
court, to secure obedience to its rules and process, and to rebuke interference
with the conduct of its business.” See Barnard, 855 P.2d at 249
(citation and internal quotation marks omitted). Therefore, we affirm the
district court’s rejection of the Smith Property and attorney fees provisions
of the Trustees’ proposed order as an appropriate and necessary exercise of the
district court’s inherent powers without reaching the Trustees’ claim that the
Beneficiaries’ filing of an objection a few days late was inexcusable.
At ¶
30.
Bad Faith Attorneys Fees
The
district court then awarded the Beneficiaries $37,210 in attorney fees incurred
in connection with the dispute over the Trustees’ proposed order from the May
2009 hearing on the basis that the Trustees had acted in “bad faith” in
preparing a written “ruling . . . that was 180 degrees different than” the
court’s oral decision. The Trustees contend that the award was in error because
the Beneficiaries failed to establish a basis for an award of bad faith
attorney fees and because the court ordered the fees to be paid by the Trustees
individually rather than from the Trust.
At ¶ 31.
To
prevail on a claim for attorney fees under the bad faith statute, a party must
demonstrate that (1) it was the prevailing party, (2) the other party’s actions
were without merit, and (3) those actions were not done in good faith. Utah
Code Ann. § 78B-5-825(1) (LexisNexis 2012); Still Standing Stable, LLC v.
Allen, 2005 UT 46, ¶ 7, 122 P.3d 556. A lack of good faith can be found
when the circumstances demonstrate that a party does not have “[a]n honest belief
in the propriety of the activities in question.” Still Standing Stable,
2005 UT 46, ¶ 12. Once a party has made a showing that it is entitled to bad
faith attorney fees, the court may award the reasonable attorney fees incurred
by the prevailing party in responding to the other party’s bad faith conduct. .
. .
At ¶
32.
The
Court confirms that the Court’s award of attorney fees was limited in scope to
the prevailing party on the Beneficiaries’ Objection to the Proposed Order.
At ¶¶
33-34.
The
Court summarizes the Trustees’ explanation for including an order completely
different than what the Court said in their Proposed order.
At ¶
35.
“Without
merit” is a mild description for an action by a party that purports to correct
a perceived (or even actual) error in a way that undermines the authority of
the court and the integrity of the judicial process. The Trustees’ conduct
clearly falls within the scope of what is considered to be bad faith: the
Trustees could not have held “[a]n honest belief in the propriety of the
activities in question.” See Still Standing Stable, LLC v. Allen, 2005
UT 46, ¶ 12, 122 P.3d 556. The impropriety of the Trustees’ decision to
unilaterally “correct” the district court’s purported error, rather than
pursuing readily available procedural alternatives, is apparent. The district
court’s findings that the Trustees’ action was both without merit and in bad
faith are therefore well supported. Because the Trustees acted in bad faith by
submitting proposed orders for the May 2009 hearing that lacked merit and the
Beneficiaries were the prevailing party in correcting the Trustees’ errors, the
award of attorney fees to the Beneficiaries under the bad faith statute was
appropriate.
At ¶
37.
The
Court declines to address the Trustees’ objection to tha amount of the fees
because it is inadequately briefed.
At ¶¶
38-39.
Trustees’ Individual Liability for Bad Faith Fees
The
Trustees assert that the district court erred when it prohibited them from
“us[ing] funds from the . . . Trust to pay attorneys’ fees and costs incurred
in connection with the actions the Court has found [the Trustees] took in bad
faith in this litigation, including . . . the award of [the Beneficiaries’]
fees and costs incurred as a result of [the] May [2009] Order.” They complain
that the court, in effect, required the Trustees to bear the costs themselves
despite the fact that the court never “found wrongdoing or a violation of
fiduciary duties” on their part. See generally Utah Code Ann. §
75-7-1004(2) (LexisNexis Supp. 2013) (allowing trustees reimbursement from the
trust when they “defend[] or prosecute[] any proceeding in good faith”). They
thus contend that “[t]o assess attorneys’ fees against the[m] . . . as
individuals punishes them for attempting to protect the Trust.”
At ¶
41.
. . .
Because trustees are only entitled to reimbursement from the trust when they
defend in good faith, see Utah Code Ann. § 75-7-1004(2), the court’s
refusal to allow the Trustees to use Trust funds to pay the fees incurred due
to their bad faith conduct was appropriate.
At ¶
42.
Trustees’ Claim for Attorneys Fees
The
Trustees’ next contention is that the district court wrongly denied their
requests for an award of attorney fees against the Beneficiaries. Generally, a
party is entitled to attorney fees only “when authorized by contract or by
statute.” Bilanzich v. Lonetti, 2007 UT 26, ¶ 11, 160 P.3d 1041. The
Trustees assert two statutory bases for attorney fees: the bad faith statute
and section 1004(1).
At ¶
43.
. . .
Attorney fees can be awarded against a party under section 1004(1) when
“justice and equity”
so require. Utah Code Ann. § 75-7-1004(1) (LexisNexis Supp. 2013) (“In a
judicial proceeding involving the administration of a trust, the court may, as
justice and equity may require, award costs and expenses, including reasonable
attorney’s fees, to any party, to be paid by another party or from the trust
that is the subject of the controversy.”).
At ¶
44.
The
Court rejects the Trustees’ arguments that the trial court’s bad faith finding
was clearly erroneous because the Trustees failed to marshal the evidence.
At ¶¶
47-48.
. . .
A finding that a party acted in good faith is necessarily fatal to the other
party’s claim for bad faith attorney fees. We therefore affirm the district
court’s decision to deny the Trustees’ request for an award of attorney fees
against the Beneficiaries under the bad faith statute. And because the Trustees
cite only the Beneficiaries’ purported bad faith as the basis for an award of
attorney fees based on “justice and equity” under section 1004(1) of the trust
statute, the district court’s decision on this ground must be upheld as well.
At ¶
48.
Appellate Briefing
The
Court declines to address the Beneficiaries’ appeal of the trial Court’s summary
judgment ruling and denial of their motions to amend because of inadequate
briefing.
At ¶
51-57.
Proctor v. Costco, 2013 UT App 226, No.
20120122-CA (September 19, 2013)
ISSUES: Directed Verdicts, Personal Injury,
Proximate Cause, Merchant’s Duty of Care,
Judge
Roth,
Robert
Proctor appeals from the unfavorable result in his negligence suit against
Costco Wholesale Corporation. Specifically, Proctor asserts that the trial
court improperly granted a partial directed verdict in favor of Costco on two
of his allegations of negligence and abused its discretion when it declined to
reinstate one of the two allegations after Costco elicited testimony on the
issue during the presentation of its defense. Proctor also challenges the trial
court’s denial of his own motion for directed verdict. Finally, Proctor claims
that there was insufficient evidence to support the jury’s verdict in favor of
Costco. We affirm.
At ¶
1.
The
Court outlines the facts of the case.
Specifically, (1) Proctor’s injury helping a Costco Employee list cones,
(2) Proctor’s five theories of negligence, (3) the trial court’s directed
verdict on the 2 of the 5 theories, (4) the trial court’s denial of Proctor’s
request for directed verdict, and (5) the jury’s determination that Costco was
not negligent with respect to the remaining theories.
At ¶¶
2-5.
Proximate
cause
Proctor
is correct that, in light of the parties’ stipulation and Costco’s withdrawal
of its motion regarding allegation one, the trial court should have waited to rule
on Costco’s motion for partial directed verdict until after Proctor finished
presenting his case, including anticipated cross-examination of certain of
Costco’s own witnesses. Proctor
has not demonstrated, however, that this error prejudiced him, and a harmless
error does not require reversal. . . . We conclude that Proctor was not
prejudiced by the court’s error in directing a verdict on the first two
allegations because he cannot establish, as a matter of law, that any
negligence by Costco in assigning Holtkamp the task of setting out the cones or
any negligence by Holtkamp in spilling the cones was a legal, or proximate,
cause of his injury.
At ¶
9.
Proximate
cause is “[a] cause that directly produces an event and without which the event
would not have occurred.” Black’s Law Dictionary 250 (9th ed. 2009). To
prove proximate cause, however, it is not enough to show that a negligent act
brought about the injury; rather, a plaintiff must demonstrate that the act was
the “efficient, producing cause” of the injury, CSX Transp., Inc. v. McBride,
131 S. Ct. 2630, 2642 (2011) (internal quotation marks omitted), meaning “that
cause which, in a natural and continuous sequence, unbroken by any new cause,
produced the injury, and without which the injury would not have occurred,” Bunker
v. Union Pacific R.R. Co., 114 P. 764, 775 (Utah 1911). See also
Holmstrom v. C.R. England, Inc., 2000 UT App 239, ¶ 36, 8 P.3d 281
(explaining that the defendant’s negligence is a proximate cause only if the
negligence “played a substantial role in causing the [plaintiff’s] injuries”).
In other words, “[p]roximate cause refers to the basic requirement that before
recovery is allowed in tort, there must be some direct relation between the
injury asserted and the injurious conduct alleged,” i.e., “it limits liability
at some point before the want of a nail leads to the loss of the kingdom.” . .
.
At ¶
10.
As a
natural corollary, an “actor’s negligent conduct is not a [proximate cause] in
bringing about harm to another if the harm would have been sustained even if
the actor had not been negligent.” Holmstrom, 2000 UT App 239, ¶ 46
(citing Restatement (Second) of Torts § 432(1) (1965)) . . . . “Furthermore,
foreseeability is an element of proximate cause” that requires an “inquiry” into
“‘the specifics of the alleged tortious conduct,’ such as ‘whether the specific
mechanism of the harm could be foreseen.’” Dee v. Johnson, 2012 UT App
237 . . . .
At ¶
11.
As in
Dee, Costco’s assignment of the task of setting out the cones to
Holtkamp and Holtkamp’s conduct in performing that task produced a sequence of
events that led to Holtkamp requesting assistance from Proctor and ultimately
to Proctor’s injury. However, regardless of how the stack of cones came to be
on the ground—through either the negligence of Holtkamp or Costco or
otherwise—the spilling of the cones was only a type of “causation in fact,”
which is not the equivalent of “legal causation.” The type of injury to be
expected from any such negligence on Holtkamp’s or Costco’s part would be from
the stack of cones hitting Proctor as they fell over or perhaps from Proctor
instinctively rushing over to steady the cones as they began to fall. But the
falling cones did not injure Proctor nor did he try to steady them, and once
the cones were on the ground, they posed no threat of injury to Proctor until
Holtkamp asked him to help her by lifting them back onto the wheel base.
“[I]ndeed, had [the cones] remained [on the pavement], presumably the [injury]
would never have occurred.” See Dee, 2012 UT App 237, ¶ 6. Thus, at the
point when the cones ended up on the ground, “the legal separation” between
Proctor’s injury and the acts of Costco or Holtkamp that resulted in the cones
falling to the ground, however negligent they might have been, “is too great”
to render those acts the proximate cause of Proctor’s injury. . . .
At ¶
13.
Thus,
no matter how the cones ended up on the ground, the act of their falling and
the circumstances leading up to their falling, did not legally cause Proctor’s
shoulder injury. Rather, the potential proximate causes of Proctor’s injury
occurred only after the cones were on the ground and involved Proctor’s
allegations that Holtkamp requested that he help her by picking up the cones
and then failed to provide any warning about their weight or any instruction on
proper lifting technique. See Holmstrom, 2000 UT App 239, ¶ 46 (“‘[An]
actor’s negligent conduct is not [a proximate cause] . . . in bringing about
harm to another if the harm would have been sustained even if the actor had not
been negligent.’” (quoting Restatement (Second) of Torts § 432(1) (1965))).
These are the claims that survived Costco’s motion for partial directed verdict
and were ultimately resolved by the jury in Costco’s favor. Because Proctor could
not have established that his first two allegations were a proximate cause of
his injuries even if they had survived the motion, the court’s error in
directing a verdict was harmless. . . . .
At ¶
14.
The
Court holds that exclusion of evidence, as the result of the directed verdicts
did not prejudice Proctor because he was still able to present “a reasonably
full picture of the circumstances that resulted in his injury.”
At ¶¶
15-16.
Duty of Care
Proctor
argues that Costco admitted at trial that Holtkamp was negligent in asking
Proctor to help her pick up the cones and that this admission required that the
trial court direct a verdict against Costco on liability. The testimony which
Proctor contends amounts to an admission of negligence, however, establishes
only that Costco believed that asking a non-employee to assist an employee in
carrying out her duties was contrary to its tenets of good customer service.
For example, the store manager testified that “Holtkamp should not have asked a
non-employee to lift the cones” because “[i]t’s just not giving good member
service” to “ask members for help” and because “the customers can be injured.”
. . .
At ¶
19.
Costco’s
acknowledgment that Holtkamp acted contrary to Costco’s member service rules,
however, does not necessarily establish a breach of duty, a necessary element
of a successful negligence claim. . . . The duty of a business is simply to
“exercise due care and prudence for the safety of business invitees,” Dwiggins
v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991), and “that duty cannot be
altered by higher standards prescribed by a merchant for his or her employees,”
Steffenson v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1345 (Utah 1993).
Whether Holtkamp’s request that Proctor assist her in picking up the cones
constituted a violation of that duty thus does not depend on Costco’s internal
rules established to ensure customer satisfaction and to avoid injury as a
general matter, but instead on whether the request for customer assistance
constituted a breach of the duty to “exercise due care and prudence for the
safety” of customers under the particular circumstances. See Dwiggins,
811 P.2d at 183. A finding that Holtkamp’s request was a breach is not a
foregone conclusion on the evidence presented at trial, particularly given that
several witnesses, including Proctor himself, testified that it was not
unreasonable or inappropriate, under the circumstances, for Holtkamp to ask
Proctor to help pick up the cones and given that he was, of course, free to decline
the request for assistance. Thus, whether Holtkamp’s request that Proctor
assist her amounted to a breach of duty was not conclusively resolved simply by
testimony that her supervisors generally thought it was not a good idea to ask
customers for help, but rather was a question of fact for the jury. See B.R.
ex rel. Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228 (“[B]reach . . . [is
a] question[] for the fact finder determined on a case‐specific basis.”). A
directed verdict would therefore have been inappropriate. . . .
At ¶
20.
Nor
has Proctor convinced us that he was entitled to a directed verdict of
negligence on his allegations that Holtkamp failed to warn him of the weight of
the cones or to instruct him on how to lift the cones. . . .
. . .
even assuming for purposes of appeal that Proctor has demonstrated a duty on
Costco’s part to warn and to instruct due to its superior knowledge, there are
conflicting facts as to whether Holtkamp actually issued a warning about the
weight of the cones and instructed Proctor on how to properly lift them prior
to his attempt to pick up the cones.
At ¶
21-22.
Sufficiency of the Evidence
. . .
Proctor, as the party challenging the verdict, must carry the heavy burden of
establishing “that the evidence so clearly preponderates in [his] favor . . .
that reasonable people would not differ on” concluding that Costco was
negligent. . . .
At ¶
24.
The
Court reviews the evidence and concludes that the Jury was not unreasonable.
At ¶
25-26.
In re the Estate of Dick E.
Bastian, 2013 UT App 227, No. 20120686-CA (September 19, 2013)
ISSUES:
Judgment Notwithstanding the Verdict, Wrongful Use of Civil Proceedings, Intentional
Infliction of Emotional Distress
Judge
Orme,
Susan
Bastian and her daughter, Mariann Hamby, appeal from the trial court’s decision
to set aside a jury verdict against Chelsea and Jessica Bastian. We affirm.
At ¶
1.
Appellants
asserted several claims against Plaintiffs, including Jessica and Chelsea, at
trial: (1) wrongful use of civil proceedings, (2) abuse of process, and (3)
intentional infliction of emotional distress. We will affirm the trial court’s
decision to set aside the verdict in this case only if we conclude that the
evidence “so clearly preponderates in favor” of Jessica and Chelsea “that
reasonable people would not differ on the outcome of the case.” See Hess v.
Canberra Dev. Co., 2011 UT 22, ¶ 28, 254 P.3d 161 (footnote citation
and internal quotation marks omitted). “[We will] review all of the evidence
presented at trial in the light most favorable to the verdict to determine
whether that evidence is sufficient to support the jury’s verdict.” Id. If
the evidence supports the verdict, then we will reinstate the verdict and
reverse the trial court’s decision to set it aside. See id.
At ¶
6.
Wrongful Use of Civil Proceedings
To
prevail on their claims of wrongful use of civil proceedings, the jury
instructions required Appellants to show that the person initiating or
continuing the wrongful death claim did not “reasonably believe[] in the
existence of the facts upon which the claim is based” and did not “correctly or
reasonably believe[] that under those facts the claim may be valid under
applicable law.” Appellants argue that two pieces of evidence support the jury’s
verdict that Jessica and Chelsea initiated or continued the wrongful death
claim and that they did so knowing that the claim was invalid: (1) Jessica and
Chelsea met with the attorney their father had hired to represent them in the
probate matters during his investigation of the wrongful death claim and (2)
Jessica and Chelsea were aware that their father thought something about their
grandfather’s death was suspicious.
At ¶
7.
We
agree with Jessica and Chelsea that neither of these facts support the jury’s
verdict as to them. The record is devoid of any evidence that Jessica and
Chelsea used the meetings with their attorney prior to the probate proceedings
to encourage or initiate the filing of the wrongful death claim. And the most
that their knowledge of their father’s concerns can show is an awareness of a
general dispute. Even viewing this evidence in the “light most favorable to the
verdict,” id., it is insufficient.
At ¶
8.
Abuse of Process
To
prevail on their abuse of process claims, the jury instructions required
Appellants to establish at trial that Jessica and Chelsea initiated or
maintained the claim for “a purpose for which it was not designed.” Appellants
were also required to show that Jessica and Chelsea furthered that improper
purpose through “a willful act independent of the legal process.” In other
words, the jury must have had before it evidence that Jessica and Chelsea were
involved in an act other than the filing of the wrongful death claim that was
performed with the intent to misuse the legal system. We agree with Jessica and
Chelsea that the evidence does not support the verdict on these claims. . . .
At ¶
11.
Finally,
we consider the jury’s favorable verdicts on Appellants’ claims of intentional
infliction of emotional distress. According to the jury instructions,
Appellants were required to show, among other things, that “an actor
intentionally engaged in some conduct toward the claimant [i.e., the filing of
the wrongful death claim] . . . with the purpose of inflicting emotional
distress, or, where any reasonable person would have known that such would
result.” Having already determined that Jessica and Chelsea were not involved
in the filing of the wrongful death claim, we never get to the question of
whether Jessica and Chelsea filed it with the intent to inflict severe
emotional distress upon Appellants.
At ¶
12.
State v. Davis, 2013 UT App 228, No.
20110204-CA (September 19, 2013)
ISSUES:
Prosecutorial Misconduct, Relevance, Responding to Jury Questions
Judge
Voros,
Eric
Joseph Davis appeals from his convictions for object rape and forcible sodomy.
Utah Code Ann. §§ 76-5-402.2, -403(2) (LexisNexis 2012). He raises three
grounds for reversing his convictions: (1) alleged prosecutorial misconduct in
crossexamining Davis
and in closing argument, (2) evidence concerning a post-offense order and
protective measures, and (3) a supplemental jury instruction concerning the
prosecutor’s charging discretion. We affirm.
At ¶
1.
The
Court outlines the facts of the rape committed in this case.
At ¶¶
2-7.
The
Court sets for the issues and standards of review.
At ¶¶
8-16.
Prosecutorial Misconduct
We
apply a two-part test to determine whether the remarks made by counsel are so
objectionable as to merit a reversal in a criminal case. We first consider
whether “the remarks call[ed] to the attention of the jurors matters which they
would not be justified in considering in determining their verdict.” State
v. Troy, 688 P.2d 483, 486 (Utah 1984) (citation and internal quotation
marks omitted). If so, we then determine whether the remarks were harmless
beyond a reasonable doubt. See State v. Wright, 2013 UT App 142, ¶ 41
n.6, 304 P.3d 887 (as explained supra ¶ 12).
At ¶
18.
“A
prosecutor has the duty and right to argue the case based on the total picture
shown by the evidence or the lack thereof . . . .” State v. Hales, 652
P.2d 1290, 1291 (Utah 1982) (citation and internal quotation marks omitted). And
in closing, counsel has “considerable latitude” to argue his or her view of the
evidence and “the inferences and deductions arising therefrom.” State v.
Tillman, 750 P.2d 546, 560 (Utah 1987) (citation omitted). Nevertheless, a
prosecutor may not argue a case based on facts not admitted into evidence. See
State v. Palmer, 860 P.2d 339, 344 (Utah Ct. App. 1993) (“A comment by a
prosecutor during closing argument that the jury consider matters outside the
evidence is prosecutorial misconduct.”).
At ¶
19.
The
court sets forth the prosecutors “sarcastic comments” about defendant’s
testimony and the trial court’s admonitions to the prosecutor not to comment on
the evidence.
At ¶
21.
We
conclude that the trial court did not plainly err. We agree with Davis that the
prosecutor’s comments were inappropriate—they expressed the prosecutor’s
opinion of the evidence and projected a disrespectful attitude toward Davis. We
commend the trial court for intervening to rein in the prosecutor. However,
Davis has not shown that the prosecutor’s sarcastic statements were so
obviously prejudicial as to require a mistrial.
At ¶
26.
- Commenting on Defendant’s truthfulness
. . .
Davis asserts that “[a]sking a defendant whether he lied, commenting on the
veracity of the defendant, or calling the defendant a liar is . . .
misconduct.” . . . However, in [State v. Johnson, 2007 UT App 184, 163
P.3d 695] this court did not hold or state that calling the defendant a
liar constitutes prosecutorial misconduct. We stated that “courts are split on
whether it is improper to characterize a defendant as a liar during closing
arguments.” Id. ¶ 45. . . . We resolved the issue on appeal in Johnson
by “assum[ing], without deciding, that the prosecutor’s statement that [the
d]efendant was a liar was improper,” but concluded that “no prejudice resulted
from this error because the trial record is replete with [the d]efendant’s
inconsistent statements.” Id. ¶ 46.
At ¶
33.
To be
clear, “the evil to be guarded against” in such cases is that “a juror would
consider [such] statements to be factual testimony from the prosecutor.” State
v. Lafferty, 749 P.2d 1239, 1256 (Utah 1988). Consequently, “a prosecutor
engages in misconduct when he or she expresses personal opinion or asserts
personal knowledge of the facts.” State v. Bakalov, 1999 UT 45, ¶ 57.
“However, a prosecutor may draw permissible deductions from the evidence and
make assertions about what the jury may reasonably conclude from those
deductions.” Id.
At ¶
35.
Here,
while Davis complains that the prosecutor called him a liar, he has not
undertaken to show that a juror would consider the statement to be factual
testimony from the prosecutor rather than permissible deductions from the
evidence. Consequently, he has not demonstrated that it should have been
obvious to the trial court that it was required to intervene. Furthermore, we
conclude that any error was harmless beyond a reasonable doubt.
At ¶
36.
- Asking Defendant to testify regarding another witness’
truthfulness
Asking
a defendant to comment on the veracity of another witness is improper. Such a
question is argumentative and seeks information beyond the defendant’s
competence. State v. Emmett, 839 P.2d 781, 787 (Utah 1992). “The
prejudicial effect of such a question lies in the fact that it suggests to the
jury that a witness is committing perjury even though there are other
explanations for the inconsistency.” Id. Moreover, “it puts the
defendant in the untenable position of commenting on the character and
motivations of another witness,” whom the jury may find sympathetic. Id. Nonetheless,
we will not reverse when no prejudice results. See State v. Stevenson,
884 P.2d 1287, 1291 (Utah Ct. App. 1994).
At ¶ 38.
The
prosecutor should not have asked Davis whether the store clerk was lying.
However, the trial court reframed the question as a request for Davis to repeat
his own account of the disputed conversation without speculating on why his
account differed from that of the store clerk. Davis followed the trial court’s
guidance and did not comment on whether the store clerk was lying. Accordingly,
Davis did not speculate beyond his competence and did not comment “on the
character and motivations of another witness.” Emmett, 839 P.2d 781,
787. Moreover, neither the prosecutor’s question (as reframed by the court) nor
Davis’s answer suggested “to the jury that a witness [was] committing perjury.”
Id. Rather, they merely highlighted that a discrepancy existed.
Consequently, viewed in isolation or in combination with the previous allegations
of prosecutorial misconduct, we conclude that any misconduct here was either
cured or harmless beyond a reasonable doubt.
At ¶ 39.
- Description
of Reasonable Doubt Standard
The Court quotes the prosecutor’s reasonable doubt comments
but concludes that “to the extent the prosecutor’s statement of the reasonable
doubt standard was erroneous, any prejudicial effect was neutralized by the
judge’s direction to the jury, echoed by the prosecutor, to follow the
reasonable doubt instruction. See Dunn, 850 P.2d at 1225.
At ¶
45.
- Commentary
on Prosecutor’s Past Experience
Davis
next contends that the prosecutor improperly discussed what other defendants
typically claim. Davis argues that this statement was based on information that
was not admitted into evidence and that this discussion was “irrelevant and
unduly prejudicial since anecdotal statistical evidence as to what defendants
usually do has no bearing on whether this particular defendant did the same
thing.”
At ¶
46.
The
State admits that “the prosecutor’s experience in other cases was not a fact in
evidence.” However, the State argues that, read in context, the prosecutor’s
statement was innocuous because it “did not refer to the kind of extra‐record
experience that might improperly sway the jury’s verdict.” Indeed, the
transcript strongly suggests that the prosecutor was explaining why the next
topic in her closing argument was lack of consent: . . .
At ¶
48.
The
prosecutor did not use her statement about her experience to bolster the
State’s argument on any issue before the jury or as evidence of what defendants
usually do. Like the statement, “[I]t’s rare that you get a murder with
eyewitnesses”— found unobjectionable in State v. Cummins, 839 P.2d 848,
854 n.12 (Utah App. 1992)—the prosecutor’s statement here was “a self-evident
proposition well within the common understanding of lay jurors.” Id.5 And, after the statement, she
reminded the jury that their decision must be based on the evidence introduced
at trial.
At ¶
49.
In
sum, Davis has not demonstrated that the prosecutor’s comment was so likely to
prejudice the jury that it was “plain error for the trial court not to have
intervened.” State v. Ross, 2007 UT 89, ¶ 58, 174 P.3d 628. We also do
not ascribe any prejudicial effect to the challenged comment.
At ¶
50.
Davis
also contends that the prosecutor’s closing argument was improper because “she
. . . suggest[ed that Davis] was guilty because he had not established a reason
for [C.D.] to lie, thereby giving the false impression that the jury must
convict if [Davis] had not established a reason for [C.D.] to falsely accuse
him.”
At ¶
51.
“In
the criminal justice system, a defendant is presumed innocent and the
prosecution must prove guilt beyond a reasonable doubt.” State v. Maestas,
2012 UT 46, ¶ 167, 299 P.3d 892 (citations omitted). “But it is not improper
for the prosecution to argue the case based on the total picture shown by the
evidence or the lack thereof or to fully discuss from [its]
perspective[] the evidence and all inferences and deductions it supports.” Id.
(emphasis added; other alterations in original) (citation and internal
quotation marks omitted). “Thus, in determining whether the prosecution’s
comments improperly shifted the burden of proof to a defendant, we must assess
the comment in context of the arguments advanced by both sides as well as in
context of all the evidence.” Id. (citation and internal quotation marks
omitted). A prosecutor’s remark that was “prompted by” a defendant’s claim or
that “simply countered the defendant’s arguments” does not shift the burden of
proof. Id. ¶ 168.
At ¶
55.
In
addition, so long as the prosecutor makes no remarks that “can fairly be
characterized as an overt reference to a defendant’s failure to testify,” the prosecutor
is “free to highlight an overall shortfall of defense evidence.” State v.
Nelson-Waggoner, 2004 UT 29, ¶¶ 31, 33, 94 P.3d 186. Thus, statements such
as “[N]o one has told you where the defendant was or what he was doing on the
17th,” and “[T]he defendant’s brother and his two good friends took the stand,
they were here available, and not once did they dispute [the State’s] evidence”
are permissible. Id. ¶ 32 (ellipses and internal quotation marks
omitted).
At ¶
56.
Indeed,
we have approved statements virtually identical to those at issue here against
a challenge that they constituted a comment on the defendant’s silence. See
State v. Nguyen, 2011 UT App 2, ¶ 28, 246 P.3d 535, (rejecting a challenge
to the prosecutor’s comments including, “Not a single motivation has been
raised to show why she would possibly lie in these circumstances”; “There is
the complete absence of any evidence of coaching”; and “[There is a c]omplete
lack of any evidence of any motivation to lie in this case”), aff’d 2012
UT 80, 293 P.2d 236.
At ¶
57.
Here,
the prosecutor’s comments responded directly to testimony given by Davis under
cross-examination. He agreed that he had called his family and asked them to
drive by C.D.’s house and get a picture of another man’s car in order to
demonstrate a motive because he “was still trying to figure out why [she] would
accuse [him] of rape.” The prosecutor’s statement—“Did you hear anything about
any reason for [C.D.] to make this up? Nothing was offered. Nothing was
offered. Nothing was in evidence”— responded to this testimony. We conclude
that the purpose and effect of the challenged comments was merely to stress the
paucity of evidence to support a defense theory, not to shift the burden of
persuasion onto the defense. Accordingly, the trial court did not commit plain
error by not intervening.
At ¶
58.
- Inference
of a False Defense
Davis
further asserts that the prosecutor’s closing argument denigrated the defense
by suggesting that Davis “was making up a defense because he had nothing else
to work with.” Specifically, he objects to the prosecutor’s characterization of
his thoughts as, “I don’t know of a guy that she’s seeing, cause there hasn’t
been one. But let me just see if I can get lucky, because I have got to get a
defense going. I’ve got nothing.”
At ¶
59.
Davis
does not cite any Utah rule specifically addressing the extent to which a
prosecutor may imply that a defense is made up. Instead, he relies primarily on cases from other states. . . .
At ¶
61.
Here,
the prosecutor’s comment was not so direct or inflammatory as to fall within
the purview of these cases or relevant Utah precedents. See, e.g., State v.
Cummins, 839 P.2d 848 (Utah 1992). State v. Campos, 2013 UT App 213,
---- P.3d ----; Accordingly, no plain error occurred.
At ¶
62.
Evidentiary Errors?
Davis
first challenges admission of Supervisor’s statement, “She presented me with a
protective order against [Davis].” He argues that this testimony was admitted
in violation of rules 402, 403, and 404(b) of the Utah Rules of Evidence.
At ¶
65.
Davis
maintains that the “fact [that C.D.] had obtained a protective order did not
make it any more or less likely that [she] had consented to the sexual activity
at issue.” The State responds that “evidence that [C.D.] obtained a protective
order after the sexual encounter tended to show that she now feared [Davis]
because the encounter was not the consensual experience that he described.”
At ¶
68.
We
conclude that it was not beyond the limits of reasonability for the trial court
to conclude that the protective order evidence was relevant. The fact that C.D.
went to the trouble of obtaining the protective order and was willing to reveal
it to her colleagues tends to make C.D.’s account—that the encounter was
non‐consensual— marginally more probable. Therefore, because the existence and
disclosure of the protective order had a “tendency to make a fact [of
consequence] more or less probable,” Utah R. Evid. 401, the trial court’s
determination that testimony about C.D. presenting a copy of her protective
order to Supervisor was relevant was within the “broad discretion [afforded to
the trial court] in deciding whether evidence is relevant,” see Fedorowicz,
2002 UT 67, ¶ 32.
At ¶
69.
Davis
next contends that because “any probative value of the evidence was outweighed
by its prejudicial effect,” the challenged evidence should have been excluded
under rule 403 of the Utah Rules of Evidence. . . .
At ¶
70.
. . .
we conclude that Supervisor’s mention of the protective order was not so
inflammatory as to require the trial court to sua sponte conduct a rule 403
weighing and
further to rule that the danger of unfair prejudice substantially outweighed
the testimony’s probative value. Moreover, for the reasons explained below in
connection with the testimony concerning precautionary measures, see infra ¶¶
77–84, even if admission of the reference to the protective order was
erroneous, “‘we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.’”
At ¶
73.
Davis
further argues that the trial court should have excluded the protective order
testimony under rule 404(b) of the Utah Rules of Evidence. He maintains that
none “of the conditions which allow admission under [rule] 404(b) [were] present.”
Rule 404(b)
governs the admissibility of evidence of a defendant’s other crimes, wrongs, or
acts. Id. “Rule 404(b) forbids the use of other bad acts to prove the
character of the defendant and to show the defendant acted in conformity with
his character.” United States v. Gorman, 312 F.3d 1159, 1162 (10th Cir.
2002) (referring to the analogous federal rule). “‘Other bad acts’ means acts
that are not part of the events giving rise to the present charges.” Id.
At ¶
74.
Nothing
in Supervisor’s testimony suggested that the protective order arose from “other
acts,” that is, “acts that [were] not part of the events giving rise to the
present charges.” Gorman, 312 F.3d at 1162. . . .
At ¶
76.
We
agree with Davis that evidence of the workplace precautionary measures was
erroneously admitted. Any possible relevance lay in the fact that Supervisor
may have believed C.D.’s story—in other words, it constituted improper
bolstering.8 The trial court
seems to have recognized as much when it initially cut off the precautions
testimony and limited the testimony to the fact that C.D.’s workplace “received
a copy of the protective order and they took precautions.” Accordingly,
admitting the precautions testimony into evidence over a relevance objection
was not within the “broad discretion [afforded to a trial court] in deciding
whether evidence is relevant.” State
v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.
At ¶
79.
Despite
our conclusion that the testimony concerning precautionary measures was
erroneously admitted, we will not overturn a jury verdict “if the admission of
the evidence did not reasonably affect the likelihood of a different verdict.” See
State v. High,
2012 UT App 180, ¶ 50, 282 P.3d 1046 (brackets, citation, and internal
quotation marks omitted).
At ¶
80.
We
recognize “that this is not a case where the evidence of guilt was
overwhelming.” Id. Nevertheless, any facts the jury could reasonably
have inferred from the existence of the protective order and the ensuing
precautions were presented to the jury directly in other testimony. . . .
At ¶
81.
Given
the detailed evidence presented that Davis was dangerous and violent, the
bolstering effect of the precautions testimony was not prejudicial. . . .
At ¶
82.
In
addition, the State did not refer to the precautions testimony in closing, and
the improper evidence is confined to ten lines of testimony over a three‐day
trial consuming over 500 transcript pages. . . .
At ¶
83.
Jury Instruction
A. Adequacy
of Record
Davis
next contends that the “the trial court’s failure to follow required procedure
for responding to jury notes violated constitutional protections and the rules
of criminal procedure.” He argues that the trial court violated his “right to a
record of sufficient completeness to permit proper consideration of [his]
claims” when it failed to preserve notes from the jury and the court’s
responses.
At ¶
85.
Rule
17(n) of the Utah Rules of Criminal Procedure specifies that a court must
follow one of two courses of action upon receiving a question of law from the
jury. The court may “direct that the jury be brought before the court where, in
the presence of the defendant and both counsel, the court shall respond to the
inquiry or advise the jury that no further instructions shall be given.” Utah
R. Crim. P. 17(n). “Such response shall be recorded.” Id. Alternatively,
the court has discretion to “respond to the inquiry in writing without having
the jury brought before the court, in which case the inquiry and the response
thereto shall be entered in the record.” Id.
At ¶
86.
Here,
the jury submitted two questions to the trial court during deliberations, and
the court chose to respond in writing. Defense counsel objected to one of these
responses and, after the jury returned its verdict, made a record of the
objection: . . .
At ¶
87.
“Due
process ‘requires that there be a record adequate to review specific claims of
error already raised.’” West Valley City v. Roberts, 1999 UT App 358, ¶
11, 993 P.2d 252 (quoting State v. Russell, 917 P.2d 557, 559 (Utah Ct.
App. 1996)). Moreover, rule 17(n)
of the Utah Rules of Appellate Procedure explicitly states that when the court
responds to a jury inquiry “in writing without having the jury brought before
the court,” the court’s response “shall be entered in the record.” Utah R.
Crim. P. 17(n). Accordingly, the trial court erred in not entering the note
into the record.
At ¶
88.
However,
applicable rules also dictate how to proceed “[i]f no report of the evidence or
proceedings at a hearing or trial was made, or if a transcript is unavailable.”
Utah R. App. P. 11(g). For example, “[i]f anything material to either party is
omitted from the record by error or accident or is misstated, the parties by
stipulation, the trial court, or the appellate court, either before or after
the record is transmitted, may direct that the omission or misstatement be
corrected and if necessary that a supplemental record be certified and
transmitted.” Id. R. 11(h). Rule 11(h) “provides a reliable method for
the reconstruction of events when the record has failed in some limited
respect.” Olsen v. Park-Craig-Olsen, Inc., 815 P.2d 1356, 1359 (Utah Ct.
App. 1991).
At ¶
89.
Consequently,
“lack of an adequate record constitutes a basis for remand and a new hearing
only where: (1) the absence or incompleteness of the record prejudices the
appellant; (2) the record cannot be satisfactorily reconstructed (i.e., by
affidavits or other
documentary evidence); and, (3) the appellant timely requests the relevant
portion of the record.” Roberts, 1999 UT App 358, ¶ 11 (emphasis
omitted).
At ¶
90.
Our
supreme court has noted that “the almost complete absence of a trial transcript
makes appellate review impossible because it precludes a meaningful review of
the lower court’s decision.” State v. Verikokides, 925 P.2d 1255, 1256
(Utah 1996). That was the situation in Roberts. But unlike Roberts,
the present case does not involve the almost complete absence of a record of
trial, but rather the absence of two notes.
At ¶ 94.
We
therefore follow the general rule that “lack of an adequate record constitutes
a basis for remand and a new hearing only where . . . the record cannot be
satisfactorily reconstructed.” See Roberts, 1999 UT App 358, ¶ 11. Davis
has not demonstrated or asserted that the record cannot be satisfactorily
reconstructed. Consequently, the lack of an adequate record in this case does
not constitute a basis for remand and a new hearing. Our review of Davis’s claim challenging the court’s supplemental
jury instruction will proceed on the existing record on appeal.
At ¶ 95.
B.
Analysis
Davis
argues that insofar as the general tenor of the trial court’s response to the
jury question may be determined from the record made, the response constituted
an improper comment on the strength of the State’s case. Specifically, he
asserts—and we agree—that the record fairly suggests the court’s response. In
making a record of his objection, defense counsel paraphrased the jury’s
question as, “[I]f someone files a charge, is the prosecution then obligated to
file a case? Something along those lines.” The trial court agreed with that characterization.
Counsel then stated that he would have preferred a limited response telling the
jury to “review their jury instructions.” We infer from this exchange that the
court’s supplemental instruction informed the jury that the prosecution is not
obligated to file a criminal case every time someone claims to be the victim of
a crime.
At ¶
96.
Davis
argues here that “[t]he trial court’s response informing the jury that the
State is not required to file all cases characterized the evidence, bolstered the
State’s case, and gave added weight to [C.D.’s] credibility.” “The response
told the jury that the State believed [C.D.] since it was not required to file
charges,” Davis asserts, “thereby suggesting that [C.D.] was credible and that
the State might have other information.” Davis does not further elaborate on
the potential harm he believes the instruction may have caused.
At ¶
99.
Assuming
without deciding that the judge’s comment was improper, Davis has not
demonstrated any resulting prejudice. The instruction did little more than to
acknowledge a commonplace feature of our justice system well known to any
consumer of local news. Although at least one juror was apparently unaware of
this practice, it is no secret in our society that the decision of whether to
charge a crime lies with the prosecutor, not the complainant. Consequently,
declining to answer the jury’s question would apparently have left at least one
juror with the false impression that prosecutors lack discretion to decline
prosecutions.
At ¶
100.
. . .
Nothing in the record before us indicates that the supplemental instruction
suggested either the existence of extra‐record evidence or that the
prosecutor’s decision to charge the defendant was based on a personal belief in
defendant’s guilt rather than an assessment that the evidence rose to a level
requiring that a jury should determine the defendant’s guilt.
At ¶
103.
. . .
Here, the trial judge instructed the jury, “[N]either the lawyers nor I
actually decide the case, because that is your role. Don’t be influenced by
what you think our personal opinions are; rather, you decide the case based
upon the law explained in these instructions and the evidence presented in
court.”
At ¶
104.
In
sum, Davis has not demonstrated that the supplemental instruction created a
reasonable likelihood of a different result.
At ¶
105.
Cumulative Error
In
this opinion, we have determined that the trial court committed several errors,
although we have concluded that no error alone was sufficiently prejudicial to
require reversal. After considering the limited prejudicial effect of these
errors and the relative strength of the case against Davis, our confidence in
the fairness of the trial has not been undermined. See State v. Havatone,
2008 UT App 133, ¶¶ 8, 17, 183 P.3d 257 (reversing when errors that were not
individually prejudicial were combined and considered in light of the weakness
of the evidence supporting the conviction, because our confidence that
defendant received a fair trial was undermined). Here, the jury was presented
with a relatively strong case against Davis, including photographic evidence of
injuries, testimony from numerous lay and expert witnesses, and C.D.’s detailed
testimony. In addition, Davis demonstrated no motive for C.D. to fabricate her
account. Therefore, despite several errors, our confidence in the fairness of
the trial is not undermined and we decline to reverse under the cumulative
error doctrine.
At ¶
107.
Judge
Thorne (Concurring),
. . .
I disagree with the majority’s assumption that the trial court erred—albeit
harmlessly—when it answered the jury’s inquiry about the prosecutor’s
discretion to bring charges against Davis. I see no abuse of discretion in the
trial court’s handling of the jury’s question, and I therefore conclude that
the trial court’s answer does not constitute error.
At ¶
112.
Here,
the trial court apparently informed the jury, after receiving the jury’s
inquiry, that the prosecutor was not required to file a criminal case every
time someone claims to be the victim of a crime. This response did not comment
on the evidence of the case, nor was it an inaccurate statement of law. See
State v. Geer, 765 P.2d 1, 3 (Utah Ct. App. 1988) (“Prosecutors are given
broad discretion in determining whether to prosecute.”). Nevertheless, the
majority opinion assumes that the trial court’s response to the jury inquiry
was error. I cannot join in that assumption because it is clear to me that the
trial court’s response fell within the appropriate range of its discretion.
At ¶
115.
Skypark Airport v. Jensen, 2013 UT App 229, No.
20110648-CA (September 19, 2013)
ISSUES:
Land Use, Covenants, and Interpretation of Land Use Declarations, Wrongful
Liens
Judge
Davis,
The
Court outlines the Declarations containing land use restrictions and the
factual history of this case.
At ¶¶
1-11.
Defendants
first challenge the trial court’s February 7, 2007 grant of partial summary
judgment to SAA. The trial court determined that SAA is the successor to the
Developer as used in the 1979 Declaration and . . . that, subject to other
defenses yet to be resolved in this matter, SAA is entitled to enforce the 1979
Declaration both as to the use restrictions and as to the assessment powers
granted to the Developer, its successors and assigns.
At ¶
14.
Defendants
first assert that the trial court’s summary judgment ruling was erroneous
because any mutual easements or servitudes created by the 1979 Declaration were
extinguished when Woods Cross acquired both the Airport and seventy of the
eighty three Skypark lots. See Restatement (Third) of Prop.: Servitudes
§ 7.5 (2000) (“A servitude is terminated when all the benefits and burdens come
into a single ownership.”). However, the trial court’s summary judgment ruling
determined only that SAA was “the successor to the Developer” and specifically
concluded that SAA’s right
“to enforce the 1979 Declaration” was “subject to other defenses yet to be
resolved.” Accordingly, even accepting Defendants’ merger/unification argument
as applicable, that argument is irrelevant to the trial court’s summary
judgment ruling because
the question of whether SAA is a successor to the Developer does not depend on
whether the 1979 Declaration’s CCRs remain enforceable.
At ¶
15.
Defendants
also raise other arguments relating to the continuing validity of the 1979
Declaration in support of their argument against the trial court’s summary
judgment ruling, including that the covenants in the 1979 Declaration were
abandoned as a result of both the 1985 Declaration and a document they refer to
as the Mendenhall Amendment. However,
like the merger/unification argument, these arguments are irrelevant to the
trial court’s partial summary judgment determination and were not foreclosed
by that determination.
At ¶
16.
Defendants
next assert that the 1979 Declaration unambiguously conferred the authority to
enforce the 1979 Declaration exclusively on Skypark Landowners Association and
provided for the termination of that authority within ten years of the 1979
Declaration’s filing. Defendants maintain that SAA therefore cannot succeed the
Developer as the entity entitled to enforce the 1979 Declaration. Defendants’
assertion relies on Section V of the 1979 Declaration, . . .
At ¶
17.
The
Court analyzes the Declaration and finds Defendants’ interpretation is
unsupported.
At ¶
18.
. . .
Because the trial court denied Defendants’ motion [for Summary Judgment] based
on the existence of disputed factual issues rather than on purely legal
grounds, the trial court’s ruling is not reviewable on appeal.
At ¶
20.
Defendants
next challenge the trial court’s grant of SAA’s second motion for partial
summary judgment on the issue of whether the 1985 Declaration was a validly
executed amendment to the 1979 Declaration. Defendants assert that the 1985
Declaration was invalid because it was executed by only two signatories—Woods
Cross and Mountain Fuel Supply Company. Defendants
further argue that the 1985 Declaration cannot be construed
as an amendment to the 1979 Declaration because language in the 1985
Declaration indicated that its provisions were to be “in lieu of, rather than
in addition to” certain provisions of the 1979 Declaration.
At ¶
21.
Because
the 1979 Declaration states that it “may be amended in whole or in part at any
time by a 2/3rds vote of all the total of the Class A and Class B votes which
may be in existence at the time,” and because Woods Cross owned seventy of the
eighty-three Skypark lots at the time it executed the 1985 Declaration (or
approximately 84%), the trial court determined that Woods Cross clearly had the
votes to amend the 1979 Declaration. The trial court determined, based on our
supreme court’s decision in Swenson v. Erickson, 2000 UT 16, 998 P.2d
807, that signatures may be used in lieu of a formal vote and that,
“[t]herefore, because Woods Cross . . . had enough voting power to control the
outcome of the vote, it was entitled to unilaterally amend the 1979 Declaration
by executing the 1985 Declaration.” See id. ¶ 34 (suggesting that a
petition signed by a majority of the owners in a homeowners association could
potentially represent a majority vote of those owners). The trial court also
pointed out that where a single voter constitutes a necessary majority, as in
this case, “[t]here is simply no reason to require [a formal vote].” Defendants
have not adequately challenged the trial court’s analysis, having only vaguely
asserted that the trial court employed “erroneous methodology.” Because
Defendants have failed to explain why Woods Cross could not unilaterally amend
the 1979 Declaration, we do not further consider Defendants’ argument regarding
the execution of the 1985 Declaration. See generally State v. Thomas,
961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court
will not address arguments that are not adequately briefed.”).
At ¶
22.
We
also reject Defendants’ argument that the “in lieu of” language in the 1985
Declaration precluded it from being an amendment to the 1979 Declaration. . . .
At ¶
23.
Wrongful Lien
Defendants
assert that the trial court denied their right to a jury trial by refusing to
let the jury hear their wrongful lien claims. . . .
At ¶
24.
On
appeal, Defendants assert that the jury should have been allowed to assess
whether certain portions of the annual assessments levied against them by SAA
were permissible under the Declarations. However, this is a different question
than whether SAA filed a wrongful lien.
At ¶
25.
As
the trial court pointed out, “Defendants have cited no authority supporting
their argument that errors in the determination of the amount of the underlying
obligation render any lien based thereon wrongful.” Indeed, whether a lien is wrongful depends only on whether the
lienor has the authority to record it. Utah Code Ann. § 38-9-1(6) (LexisNexis
2010). Thus, the fact that a lien may “ultimately prove unenforceable” does not
make it wrongful. See Hutter
v. Dig-It, Inc., 2009 UT 69, ¶ 52, 219 P.3d 918. Furthermore, “[t]he
question of what constitutes a wrongful lien . . . is a legal question of
statutory interpretation,” id. ¶ 8, and is therefore a question that
should be determined by the trial court rather than by a jury, see Durham v.
Duchesne Cnty., 893 P.2d 581, 584 (Utah 1995).
At ¶
26.
A&B Mechanical v. Labor
Commission, 2013 UT App 230, No. 20110923-CA (September 19, 2013)
Because this decision in an original proceeding
reviewing a Labor Commission decision, I have elected not to summarize it. This case contains significant discussion of
the ALJ’s interpretation of party stipulations and their affect on the
employee’s obligation to establish his permanent disability.
