State v. Ricks, 2013 UT App 238, No.
20111115-CA (October 18, 2013)
ISSUES:
Depraved indifference murder, sufficiency of the evidence, ineffective
assistance of counsel, prosecutorial misconduct
Judge
Voros,
Defendant Brad R. Ricks and his friend Maurice Lee were drinking together one night in 2009. They got into what Ricks later called “a pissing match about who had the balls big enough to do something.” At Lee’s urging, Ricks fetched his semiautomatic pistol from the bedroom, placed it against Lee’s forehead, and pulled the trigger. Ricks later testified that he expected to hear a clicking sound. Instead, the gun discharged. The principal question on appeal is whether the facts established at trial are sufficient to support the jury’s verdict of depraved indifference murder. We hold that they are.
At ¶
1.
Ricks contends that the evidence at trial was insufficient to support his murder conviction. Specifically, he argues that the State “failed to carry its burden in attempting to establish that [he] did more than just act recklessly.”
At ¶
7.
We begin by considering whether the evidence was sufficient to support the third statutory variant of murder: that the killing was committed with a depraved indifference to human life.(2) Criminal homicide constitutes murder if:. . .(c) acting under circumstances evidencing a depraved indifference to human life, the actor knowingly engages in conduct which creates a grave risk of death to another and thereby causes the death of another; . . . .Id. § 76-5-203(2)(c). To be found guilty of depraved indifference murder under this section, “a defendant must know the nature of his conduct, must know the circumstances that give rise to the risk of death, and must know that the risk constitutes a grave risk of death.” State v. Standiford, 769 P.2d 254, 263 (Utah 1988); see also State v. Powell, 872 P.2d 1027, 1030 (Utah 1994).
At ¶
10.
. . .Criminal homicide constitutes manslaughter if the actor:(a) recklessly causes the death of another; . . . .Utah Code Ann. § 76‐5‐205(1)(a) (LexisNexis 2008). . . . As our supreme court has explained, “[d]epraved [indifference] murder requires greater culpability than reckless manslaughter.” Standiford, 769 P.2d at 263. This is because “the probability of the risk of death must be higher for depraved murder than for manslaughter.” Id. at 264. A “grave risk of death” is a “highly likely probability that death will result,” which is greater than the “substantial and unjustifiable risk” required to convict of manslaughter. Id.
At ¶
11.
The
Court differentiates this case from Boggess v. State, 655 P.2d 654 (Utah
1982), stating,
[W]e are not persuaded that Boggess represents an upper limit on jury verdicts in “dry‐firing” cases. The Boggess court did not reverse a conviction for depraved indifference murder; it affirmed a conviction for reckless manslaughter. Whether it would have affirmed a conviction for depraved indifference murder on the same facts is a matter of speculation.Moreover, this case is not as factually similar to Boggess as Ricks’s argument assumes. While Ricks may not have believed an unexpended shell was in the firing position, he did know that his pistol was “loaded” as that term is commonly understood. . . . Accordingly, while Boggess believed the gun he fired was unloaded, Ricks knew the gun he fired was loaded but believed that no round was chambered. He believed this after having checked the chamber by pulling back the slide—the same action, albeit to a lesser degree, required to chamber a round. He performed this check while intoxicated and apparently in marginal light. Accordingly, even if the facts of Boggess could not support a conviction for depraved indifference murder, the facts of the present case demonstrate greater culpability.
At ¶¶
13-14.
As our supreme court has made clear, the risk of death involved in depraved indifference murder “must be so great as to evidence such an indifference to life as to be tantamount to that evidenced by an intent to kill.” State v. Standiford, 769 P.2d 254, 259 (Utah 1988). Risk has two dimensions: the likelihood of the potential harm and the magnitude of that harm. Id. at 263 n.9 . . . . Here, the magnitude of the harm was extreme: death was virtually certain to result if the gun discharged. The likelihood of harm was also great: as explained above, the gun was loaded and Ricks knew it was loaded, yet he placed the gun to Lee’s forehead and pulled the trigger. The participants themselves regarded this act as proof that Ricks had “the balls big enough to do something”—they understood they were flirting with death.
At ¶
15.
. . . Here, reasonable minds could conclude that Ricks’s actions created not merely the “substantial and unjustifiable risk” required to convict of reckless manslaughter, but the “grave risk of death” and “depraved indifference to human life” required to convict of depraved indifference murder. . . .
At ¶
17.
Ricks contends that his trial counsel was deficient because he did “not [request] an appropriate jury instruction” or object to the jury instruction defining all three variants of the crime of murder. Specifically, Ricks complains that his trial counsel failed to object to a jury instruction that allowed the jury to convict him of murder if it found that he killed Lee knowingly or intentionally or while intending serious bodily injury. This failure to object was deficient, Ricks argues, because mid‐trial the prosecutor conceded—and the trial court ruled—that no evidence supported those variants of the crime. That is not how we read the record.
At ¶
20.
Because the trial court had already ruled that whether the evidence supported any of these three variants of murder was a jury question, an objection to the murder instruction on the ground that the evidence did not support the first two variants of the crime would have been futile. The Sixth Amendment does not require counsel to make futile objections. State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52.
At ¶
22.
Finally, Ricks argues that his trial counsel was deficient for failing “to object to the prosecutor’s incorrect statement of law” during the State’s closing argument.
At ¶
24.
Because this ineffective assistance of counsel claim assumes misconduct by the prosecutor, we first consider whether any objectionable prosecutorial misconduct occurred. Under State v. Troy, prosecutorial misconduct claims are analyzed under a two step test. 688 P.2d 483, 486 (Utah 1984) (citation and internal quotation marks omitted). Courts first ask whether “the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict.” Id. If so, courts then consider whether jurors were, “under the circumstances of the particular case, probably influenced by those remarks.” Id. “When the prosecution misstates the law during closing argument, it necessarily calls the jurors’ attention to matters that they are not justified in considering, thus satisfying the first prong of the prosecutorial misconduct test.” State v. Todd, 2007 UT App 349, ¶ 28, 173 P.3d 170 (citations omitted).
At ¶
25.
Here, Ricks contends that the prosecutor misstated the law by in effect asserting that Ricks “didn’t have to intend to cause the death, but if he simply knowingly and intentionally pulled the trigger, he was guilty of murder.” Again, this is not how we read the record.
At ¶
26.
Because Ricks has not shown that the prosecutor misstated the law, he has also failed to show that any objection by his trial counsel would have been well taken. Accordingly, he has not demonstrated that his trial counsel was ineffective. See State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52.
At ¶
29.
McGinn v. Cannon, 2013 UT App 246, No.
20120739-CA (October 18, 2013)
ISSUES:
Wrongful use of civil proceedings, Punitive damages
Judge
Orme,
Plaintiff Gregory McGinn appeals from the district court’s decision granting summary judgment in favor of defendants—a law firm and two of its attorneys—on his claim of wrongful use of civil proceedings and his request for punitive damages. We affirm.
At ¶
1.
. . . In order to prevail on a wrongful use of civil proceedings claim, McGinn must show that the Cannons pursued their claim against him “‘without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based.’” Gilbert v. Ince, 1999 UT 65, ¶ 19, 981 P.2d 841 (quoting Restatement (Second) of Torts § 674 (1977)). In such cases, a plaintiff must show that the claim was brought “for the purpose of harassment or annoyance; and it is usually said to require malice.” Baird v. Intermountain Sch. Fed. Credit Union, 555 P.2d 877, 878 (Utah 1976).
At ¶
6.
McGinn argues that there are genuine issues of material fact regarding both the Cannons’ purpose in bringing the claim and whether there was probable cause for the claim. McGinn points to evidence that the Cannons failed to verify his connection with the defaulted account prior to filing suit and argues that “[a] jury could easily believe from [the Cannons’] testimony that the failure to take time and make a reasonable effort to determine that only persons connected to a debt by objective evidence are named as defendants in collection suits is a law firm policy designed to enhance profits.”
At ¶
7.
While we are required to view the facts in the light most favorable to McGinn, we are “not required to draw every possible inference of fact, no matter how remote or improbable, in favor of the nonmoving party. Instead, [we are] required to draw all reasonable inferences in favor of the nonmoving party.” See IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588 (emphasis in original).
At ¶
8.
The Cannons presented evidence that they believed McGinn was involved with the defaulted account because of the shared business name and that their failure to dismiss the case was a result of poor communication with one of their legal secretaries and uncertainty regarding their ability to dismiss with prejudice without permission from their client. McGinn presented neither affirmative evidence of an intention on the Cannons’ part to harass or annoy through the continuance of their suit nor evidence of malice. The only facts that McGinn relies on to support his argument are the existence of the claim and the Cannons’ failure to verify a connection, beyond the shared business name, between McGinn and the delinquent account. An inference that the Cannons’ primary purpose was to harass and annoy is unreasonable in light of the undisputed evidence advanced by the Cannons and the absence of any affirmative evidence supporting McGinn’s theory. McGinn’s assertions, therefore, go beyond inference and are more a matter of conjecture and speculation. We conclude that there are no facts in dispute that would impact the “rights or liabilities of the parties” and that summary judgment was therefore appropriate. See Alliant Techsystems, Inc. v. Salt Lake Cnty. Bd. of Equalization, 2012 UT 4, ¶ 31, 270 P.3d 441 (citation and internal quotation marks omitted).
At ¶
9.
. . . Punitive damages may be awarded only if “it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann. § 78B-8-201(1)(a) (LexisNexis 2012). “‘Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.’” Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1186 (Utah 1983) (quoting Restatement (Second) of Torts § 908 cmt. B (1979)).
At ¶
10.
We conclude that there are no facts of record that would support a finding that the Cannons’ suit against McGinn went beyond an inadvertent mistake or error of judgment and was instead conduct of a malicious or knowing and reckless nature. . . .
At ¶
11.
M.F. v. J.F., 2013 UT App 247, No.
20121010-CA (October 18, 2013)
Judge
Voros,
This is a divorce case. However, this appeal is brought by grandparents seeking to enforce a no-contact order issued by a juvenile court. The central question before us is whether the grandparents had standing in a district court action to seek enforcement of the juvenile court’s order. We agree with the district court that they did not
At ¶
1.
Grandparents concede that they “did not have standing to intervene” in the Divorce Case. However, they argue that the district court “improperly denied [the Second OSC Motion] by forcing them to file in the divorce case” and then improperly denied the Renumbering Motion. In essence, Grandparents contend that the district court’s rulings prevented them from filing the Second OSC Motion as a separate case in which they would have had standing.
At ¶
8.
However, the basis for the district court’s ruling was not that Grandparents were improper parties to the Divorce Case. Rather, the district court ruled that Grandparents lacked standing because the no-contact provision [in the Juvenile Court’s order] was “void and unenforceable.” According to the district court’s apparent rationale, because the no-contact provision was void, no legally protectible interest was at stake. And because there was no “legally protectible interest in the controversy,” id., Grandparents lacked standing to enforce the provision.
At ¶
9.
We agree with the district court that the juvenile court’s order was void and unenforceable because the juvenile court lacked jurisdiction. “A court must have subject matter jurisdiction to have the power and authority to decide a controversy. Without subject matter jurisdiction a court cannot proceed.” Burns Chiropractic Clinic v. Allstate Ins. Co., 851 P.2d 1209, 1211 (Utah Ct. App. 1993). The juvenile courts “have limited jurisdiction. Their powers are limited to those specifically conferred by the statute.” In re B.B., 2004 UT 39, ¶ 13, 94 P.3d 252 (citations omitted). The scope of the juvenile court’s jurisdiction is established in sections 103 and 104 of the Juvenile Court Act. See Utah Code Ann. § 78A-6-103 (LexisNexis 2012) (setting forth the situations in which a juvenile court has exclusive jurisdiction); id. § 78A-6-104 (defining when a juvenile court has concurrent jurisdiction with a district court). Under section 103(1)(c) of the Juvenile Court Act, a juvenile court has exclusive original jurisdiction in proceedings concerning “a child who is an abused child, a neglected child, or dependent child.” Id. § 78A-6-103(1)(c); see also In re M.J., 2011 UT App 398, ¶ 49, 266 P.3d 850.
At ¶
10.
Based on the foregoing, Grandparents, seeking dispositional orders protecting their grandchildren, properly petitioned the juvenile court to adjudicate the children as neglected, abused, or dependent. However, so far as the record before us shows, the children were never adjudicated as neglected, abused, or dependent under section 103(1)(c), and the juvenile court did not determine any alternative basis for exercising jurisdiction. On the contrary, it dismissed the case based on the parties’ stipulation. As we have previously noted, “where the juvenile court makes a ruling incompatible with a continuation of its authority, the court’s jurisdiction ends.” In re S.F., 2012 UT App 10, ¶ 34, 268 P.3d 831.
At ¶
12.
Accordingly, when it dismissed the case, the juvenile court relinquished any jurisdiction it might have had, regardless of whether it had ever established the jurisdiction necessary to enter dispositional orders. And once “the jurisdiction of the juvenile court terminates, then so does the effect of its orders.” See Shedron-Easley v. Easley, 2011 UT App 42, ¶ 6, 248 P.3d 67 (per curiam). Here, the juvenile court did not adjudicate a basis for exercising jurisdiction over the children. As a result, it had authority only to dismiss the action and could not enter or enforce any other orders. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989)
At ¶
13.
“If a court acts beyond its authority those acts are null and void.” Id. Accordingly, the district court correctly ruled that the no-contact provision was void. “It is fundamental that disobedience of an order of court which was issued without jurisdiction cannot be the basis of a finding and judgment for contempt.” Mellor v. Cook, 597 P.2d 882, 884 (Utah 1979). Therefore, because the Second OSC Motion was predicated on the void no-contact provision, the district court properly denied that motion.
At ¶
14.
Grandparents also contend that the Guardian ad Litem “wants to ignore the 1200 years of common law that a signed contract (stipulated agreement) is enforceable” and that the law “should not allow [Mother or the Guardian ad Litem] to disregard the stipulation they signed.” However, these claims relate to the enforceability of the stipulation as a contract, not to the enforceability of the juvenile court’s order. It is true that the order incorporated the terms of the stipulation. But the fact that the juvenile court’s order is void for lack of jurisdiction has no bearing on whether the stipulation may be enforced as a matter of contract law. Insofar as Grandparents frame a breach of contract claim, that question is not before us, and we decline to express any opinion on it.
At ¶
16.
Bell v. Bell, 2013 UT App 248, No.
20110716-CA (October 18, 2013)
ISSUES:
Divorce, Trial Court’s Duty to Provide Complete Findings of Fact
Judge
Bench,
Stephanie Wadsworth Bell (Wife), pro se, appeals from the trial court’s Findings of Facts and Conclusions of Law and Order Granting Decree of Divorce. We affirm in part and reverse and remand in part.
At ¶
1.
The
Court outlines the trial court’s divorce decree.
At ¶¶
2-8.
Wife maintains, and Husband agrees, that the trial court erred in awarding joint legal custody of the minor children to the parties in this matter because neither party filed a parenting plan as required by Utah Code section 30-3-10.2(1). In support of her argument, Wife cites Trubetzkoy v. Trubetzkoy, 2009 UT App 77, 205 P.3d 891, a case that she argues requires the filing of a parenting plan by one or both parties as a prerequisite to an award of joint legal custody. See id. ¶ 13 . .
At ¶
14.
. . . The Trubetzkoy case Wife cites is controlling authority for the proposition that the court may not award joint legal custody to the parties absent the filing of a parenting plan. The parties concede that neither filed a parenting plan. Because neither party filed a parenting plan, the trial court exceeded its discretion in awarding joint legal custody to the parties. As a result, we reverse the trial court’s custody award and remand this issue to the court.
At ¶
15.
Wife next argues that the trial court erred in its child support determination by imputing income to her for purposes of calculating child support. She asserts that the court’s imputed monthly income determination to her of $1,260 is not adequately supported by the evidence. Husband argues that Wife has failed to marshal the evidence. “‘[T]o properly discharge the [marshaling] duty . . . , the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists.’” Oneida/SLIC v. Oneida Cold Storage & Warehouse, Inc., 872 P.2d 1051, 1053 (Utah Ct. App. 1994) (second alteration and omission in original) (quoting West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991)).
At ¶
16.
The
Court reviews the evidence supporting the trial court’s imputation of income
and determines,
. . . The evidence pertaining to Wife’s ability to teach music in her home demonstrates that she is capable of earning approximately $65 per month per student. The evidence does not, however, reveal the length or the number of lessons Wife would be required to teach each student to earn $65 a month. Therefore, it is unclear how many students Wife would have to teach, how many hours she would have to work per week, and whether it would be feasible given her responsibilities as the primary caregiver for a severely disabled child. As such, without the benefit of the reasoning and additional findings by the trial court, we conclude that the trial court’s findings are inadequate to support its imputation of income determination, and we remand the child support matter to the trial court.
At ¶
19.
Wife contends that the trial court erred in its division of the marital estate. Wife asserts that the court did not divide the marital property equally and failed to make adequate findings to support its unequal distribution of the parties’ marital property
At ¶
20.
. . .Failure of the trial court to make findings on all material issues is reversible error unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment. . . . The findings of fact must show that the court’s judgment or decree follows logically from, and is supported by, the evidence. The findings should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.Id. at 1078 (omission in original) (citations and internal quotation marks omitted).
At ¶
21.
The
Court reviews the trial court’s written explanation for the division of the
marital estate and finds that
Unfortunately, these findings provide this court with neither enough detail nor enough subsidiary facts to disclose the steps by which the ultimate property distribution was reached.
At ¶
22.
In particular, the trial court assigned no value to the musical instruments awarded to Wife. In addition, it did not provide any explanation for the apparent unequal property division which awards $94,000 in home equity to Wife but $119,000 of 401(k) and 457 accounts to Husband. Nor did the court list what, if any, exceptional circumstances the court considered that were sufficient to overcome the general presumption that marital property be divided equally between the parties. . . .
At ¶
23.
. . .“[T]he trial court’s award or denial of attorney fees must be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees.” Leppert v. Leppert, 2009 UT App 10, ¶ 25, 200 P.3d 223 (alteration in original) (citation and internal quotation marks omitted)
At ¶
25.
Here, the trial court simply ordered attorney fees “in light of all the relevant financial and other circumstances.” The court failed to include specific findings on the financial need of Wife and the ability of Husband to pay. Because the trial court does not provide us with the requisite findings pertaining to the extent of Wife’s need and Husband’s ability to pay, we are unable to determine whether Wife was awarded sufficient attorney fees below. As such, we remand the matter.
At ¶
26.
. . . Although we give Wife every reasonable indulgence due to her pro se status, her brief fails to meet even lenient standards for briefing, as explained below, on Wife’s arguments pertaining to the court’s alimony decision, contempt of court finding, visitation determination, bifurcation ruling, and child tax exemption decision. As such, we decline to consider these arguments.
At ¶
27.
Salt Lake City v. Maloch, 2013 UT App 249, No.
20120654-CA (October 18, 2013)
ISSUES:
Sufficiency of the Evidence, Possession of a Dangerous Weapon with Intent to
Assault
Judge
Davis,
Timothy Michael Maloch appeals from his conviction under Utah Code section 76-10-507, which states, “Every person having upon his person any dangerous weapon with intent to unlawfully assault another is guilty of a class A misdemeanor,” Utah Code Ann. § 76-10-507 (LexisNexis 2012). “Assault” in this context includes “a threat, accompanied by a show of immediate force or violence, to do bodily injury to another.” Id. § 76-5-102(1)(b). Maloch argues that Salt Lake City did not present sufficient evidence during the bench trial to show that he had the intent to commit an assault. We affirm.
At ¶
1.
“[t]he mere existence of inconsistencies is not a sufficient basis to question credibility determinations,” State v. Davie, 2011 UT App 380, ¶ 20, 264 P.3d 770 (mem.). In any event, not only was the trial court apprised of these inconsistencies and the explanations behind them, but it was also in a better position to assess the credibility of the witnesses than is this court, see id. ¶ 18. Accordingly, we defer to the credibility the court necessarily attributed to Clerk for it to have reached the decision it did.
At ¶
3.
Next, Maloch contends that his actions did not amount to a “show of immediate force or violence,” see Utah Code Ann. § 76-5-102(1)(b), because he displayed the knife when he was ten to fifteen feet away from Clerk and “retreating from the situation,” and because “[h]e never threatened to use the knife, never made any demands, never made any movement toward [Clerk], . . . and never even pointed the knife at [her] or in her direction.” We disagree. Although Maloch’s “proximity [to Clerk] has some relevance in determining the immediacy of the threat,” see State v. Brown, 853 P.2d 851, 860 (Utah 1992), the surrounding circumstances support the trial court’s finding that Maloch intended to threaten Clerk with “bodily injury” “by a show of immediate force or violence,” see Utah Code Ann. § 76-5-102(1)(b), when he removed the knife from his pocket, flipped out its blade, and called Clerk a “fucking bitch” as she followed him out of the store to retrieve the candy bar that she accused him of stealing.. . . The trial court’s findings are not clearly erroneous. See Briggs, 2008 UT 75, ¶ 10. Accordingly, we affirm.
At ¶
4.
Richards v. Cook, 2013 UT App 250, No.
20120764-CA (October 18, 2013)
ISSUES:
Rule 41 Involuntary Dismissal, Fraudulent Nondisclosure
Judge
Davis,
Alexander Richards appeals the trial court’s grant of Defendants’ motion for involuntary dismissal of Richards’s breach of contract and fraudulent nondisclosure claims. We affirm.
At ¶
1.
The Court outlines Plaintiff’s purchase of a home from D’s, including D’s disclosure of a toilet leak, and Plaintiff’s efforts to inspect the home. After buying the home, Plaintiff discovered substantial water damages in the home’s basement that was caused by a crack in the foundation and a faulty land drainage system.
At ¶¶
2-3.
A bench trial was held on April 23, 2012. After Richards presented his case, which included calling one of the Defendants as a witness, Defendants moved for involuntary dismissal pursuant to rule 41(b) of the Utah Rules of Civil Procedure. The trial court granted the motion, finding that Defendants did not have actual knowledge of the water damage and that Richards had failed to exercise due diligence in inspecting the house. The trial court made detailed subsidiary findings in support of this determination. The trial court also awarded Defendants attorney fees in the amount of $18,027.30 in accordance with the provisions of the REPC. Richards appeals.
At ¶
4.
. . . A trial court may grant a motion for involuntary dismissal under rule 41(b) “when the trial judge finds that the claimant has either failed to make out a prima facie case or when the trial judge is not persuaded by the evidence presented by the claimant.” Lemon v. Coates, 735 P.2d 58, 60 (Utah 1987).The trial court is not precluded from granting [a rule 41(b)] motion merely because the plaintiff has made out a prima facie case, as it is when ruling upon a . . . motion for a directed verdict in a case tried to a jury. Rather, the rule expressly states that once the motion is made, “[t]he court as trier of the facts may then determine [the facts] and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.Wessel v. Erickson Landscaping Co., 711 P.2d 250, 252 (Utah 1985) (second and third alterations in original) (citations omitted) (quoting Utah R. Civ. P. 41(b)). Because the trial court in this case made findings of fact and granted the rule 41(b) motion based on its determination that it was unpersuaded by the evidence, we defer to the court’s decision insofar as its findings are not clearly erroneous. . . .
At ¶
5.
In order to prove fraudulent nondisclosure, a plaintiff must demonstrate by clear and convincing evidence, see Anderson v. Kriser, 2011 UT 66, ¶ 22, 266 P.3d 819, that “(1) there is a legal duty to communicate information, (2) the nondisclosed information is known to the party failing to disclose, and (3) the nondisclosed information is material,” Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 35, 143 P.3d 283. A seller’s legal duty to disclose is limited to defects “not discoverable by reasonable care.” Mitchell v. Christensen, 2001 UT 80, ¶ 11, 31 P.3d 572 (citation and internal quotation marks omitted). Moreover, the second element of fraudulent nondisclosure requires actual knowledge on the part of the seller. See Anderson, 2011 UT 66, ¶ 24.
At ¶
6.
“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.” Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. Richards maintains that Defendants breached the REPC by failing to disclose the existence of the water damage in accordance with paragraph 10.3 of the REPC, which provides, “Seller agrees to . . . disclose in writing to Buyer defects in the Property known to Seller that materially affect the value of the Property that cannot be discovered by a reasonable inspection by an ordinary prudent Buyer . . . .” (Emphasis added.)
At ¶
7.
Thus, both of Richards’s causes of action required him to demonstrate that Defendants had actual knowledge of the water damage and that the damage could not have been discovered through his exercise of due diligence in inspecting the house. The trial court found that Richards had failed to establish either of these factors and that he had therefore failed to establish either fraudulent nondisclosure or breach of contract. Richards does not challenge the evidentiary basis for the trial court’s factual findings. Rather, Richards attempts to reargue the facts on appeal, asserting that his inspection of the house was reasonable and that Defendants had actual knowledge of the water damage. We are required to defer to the trial court’s findings unless they are clearly erroneous. See Lemon, 735 P.2d at 60. Because we see no error in the trial court’s findings, and because those findings support a determination that Richards failed to establish essential elements of his claims, the trial court’s decision to grant Defendants’ rule 41(b) motion is not clearly erroneous.
At ¶
8.
In sum, the trial court found that Richards failed to establish essential elements of his claims, and its findings are supported by the evidence. Accordingly, we affirm the trial court’s grant of Defendants’ rule 41(b) motion to dismiss. . . . .
At ¶
11.
State v. Mitchell, 2013 UT App 251, No.
20120849-CA (October 18, 2013)
ISSUES:
Sentencing
Per
Curiam,
Mitchell does not assert that her sentences exceed statutory or constitutional limits, or that the district court failed to consider all of the legally relevant factors. Instead, Mitchell asserts, without further analysis or argument, that her sentences are excessive “in light of [her] background and the crime committed,” as well as “the interests of society which underlie the criminal justice system.” These generalized complaints do not establish that her sentences are so inherently unfair as to constitute an abuse of discretion.
At ¶
3.
In re K.M., 2013 UT App 252, No.
20130549CA (October 18, 2013)
Per
Establish policy, I will not be summarizing this case because it challenges the
sufficiency of evidence in a determination to terminate parental rights.
American Fork City v.
Proctor, 2013 UT App 253, No. 20130738-CA (October 18, 2013)
ISSUES:
Speeding Prima Facie Evidence
Per
Curiam,
Benjamen George Proctor appeals his July 10, 2013 conviction for speeding. This matter is before the court on a sua sponte motion for summary disposition. We affirm.
At ¶
1.
Proctor asserts that the district court erred by determining that he was guilty of speeding pursuant to Utah Code section 41-6a-601, and that the district court’s decision did not conform to the evidence presented at trial. . . .
At ¶
2.
. . . [A]ny speed in excess of the posted limits provided in section 41-6a-604, or established by the Department of Transportation or counties, and municipalities is prima facie evidence that a speed is not reasonable and prudent and that it is unlawful. See id. § 41-6a-601(3).
At ¶
3.
Proctor does not dispute that his speed exceeded the posted speed limit. Thus, there was prima facie evidence that his speed was not reasonable or prudent and that it was unlawful under section 41-6a-601(3). See id. Proctor attempted to rebut the prima facie evidence that his speed was unlawful by arguing that his speed was reasonable and prudent given the existing road conditions. . . .
At ¶
4.
At ¶ 5.The district court determined that there was prima facie evidence that Proctor’s speed was unlawful. The district court also determined that, given the urban environment, Proctor failed to rebut the presumption that he was speeding. The record supports the district court’s determination that Proctor’s speed was not reasonable and prudent under section 41-6a-601(1), given the potential hazards associated with the traffic in the urban setting.
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