November 7, 2013 Utah Court of Appeals case Summaries

Olsen v. Park City, 2013 UT App 262, No. 20120490-CA (November 7, 2013)

ISSUES: Timeliness of appeal of city ordinance under the Municipal Land Use, Development, and Management Act (MLUDMA).

Judge Orme,

David and Rosemary Olsen, Dianne and William Newland, and Rick Margolis (collectively, Landowners) appeal from a district court order dismissing their complaint as untimely under section 10-9a-801 of the Utah Code. We reverse and remand for consideration of the merits of Landowners’ complaint. 

At ¶ 1.

The Court outlines the facts of this case: Specifically, (1) Park City’s approval of an ordinance on Feb 25, 2010; (2) the effective date of the ordinance on March 3, 2010; (3) Plaintiffs’ Complaint challenging the ordinance filed on March 31, 2010; (4) The trial Court’s dismissal of the Complaint as untimely; (5) Plaintiffs’ new complaint filed on October 13, 2011, pursuant to the Savings Statute, see Utah Code Ann. § 78B-2-111(1) (LexisNexis 2012); and the trial court’s dismissal of the new complaint as untimely because the Savings Statute only grants a right to commence a new action if the original action was “timely filed” and Plaintiff’s original complaint was not filed within 30 days of when the city “passed and adopted” the ordinance.

At ¶¶ 2-5.

“a challenge to the enactment of a land use ordinance or general plan may not be filed with the district court more than 30 days after the enactment.” Id. § 10-9a-801(5) (emphasis added). Landowners contend that “the Park City Council’s single act of assage of the Ordinance was not ‘enactment,’” so that the thirty-day limitations period “did not begin to run until the Ordinance became final and effective by its own terms.” We agree.

At ¶ 7.

The definition of “enactment” is “the act or action of enacting: passing.” Webster’s Third New International Dictionary 745 (1993). Although “pass” can be regarded as a synonym of “enact,” in actuality to “pass” means to “secure the allowance or approval of a legislature or other body that has power to sanction or reject a bill or proposal,” id. at 1649, while to “enact” means “to establish by legal and authoritative act: make into law; [especially] to perform the last act of legislation upon (a bill) that gives the validity of law,” id. at 745. Thus, while “passage” is an important step in “enactment,” passage alone was not enough in this case to give the Ordinance “the validity of law.” See id.

At ¶ 9.

Based on a plain reading of the statute, in conjunction with a plain reading of the Ordinance, we conclude that in this case publication is the required final step in the enactment of the Ordinance. Indeed, the Ordinance expressly stated that it would “take effect upon publication.” Thus, while passage by the city council was a necessary and pivotal step in the enactment of the Ordinance, it was not the final step that made the Ordinance effective and enforceable as law. After passage of the Ordinance by the City Council, there were still a number of necessary conditions before the Ordinance would become effective: signature by the mayor, attestation by the city recorder, approval as to form by the city attorney, and publication. In fact, had the Ordinance never been published, it would never have come into effect and never would have had the force of law. It is illogical to think of an ordinance that has been passed, but has never become enforceable, as having been enacted. Because Landowners filed their original complaint within thirty days of the March 3, 2010 publication of the Ordinance, the last step necessary for its enactment, we conclude that their complaint was timely filed.

At ¶ 10.

State v. Goodluck, 2013 UT App 263, No. 20121034-CA (November 7, 2013)

ISSUES: Sentencing

Per Curiam,

Markus Goodluck appeals his sentence on a conviction of aggravated assault, a third degree felony. We affirm.

At ¶ 1.

“The sentencing decision of a trial court is reviewed for abuse of discretion.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. A court abuses its discretion in sentencing “when it fails to consider all legally relevant factors or if the sentence imposed is clearly excessive.” See id. ¶ 28 (citation and internal quotation marks omitted). On appeal, a defendant has the burden to show that the district court did not properly consider all of the factors in Utah Code section 76-3-401(4). See id. ¶ 28. Alternatively, a defendant may demonstrate an abuse of discretion if he or she can show “that no reasonable [person] would take the view adopted by the trial court.” Id. (alteration in original) (citation and internal quotation marks omitted).

At ¶2.

The Court reviews the evidence before the court at sentencing and determines that the trial court did not abuse its discretion.

At ¶¶ 3-4.

A Healthy Choice v. Brown, 2013 UT App 264, No. 20120647-CA (November 7, 2013)

ISSUES: Sufficiency of affidavit to raise a material question of fact in an intentional interference with economic relations claim

Per Curiam,

A Healthy Choice (Healthy Choice) appeals the trial court’s order granting summary judgment in favor of Michelle, Kelly, and Kelsey Brown and dismissing the action. We affirm. 

At ¶ 1.

The Court sets forth the procedural posture of Defendants’ Motion to Dismiss Plaintiff’s claim of intentional interference with economic relations.  Specifically, the Court emphasizes that the trial court elected to treat Defendants’ motion as a motion for summary judgment and gave Plaintiffs additional time to present evidence sufficient to raise a material question of fact.

At ¶ 2. 

Healthy Choice provided two affidavits in an attempt to support its claim. The trial court determined that the affidavits failed to create a dispute of material fact and that, regardless, they were untimely based on the closure of discovery. Accordingly, the trial court granted the summary judgment motion.

At ¶ 3.

In this case, even if the trial court had not struck the affidavits provided by Healthy Choice as untimely, the affidavits failed to establish any specific material fact that would preclude summary judgment. The complaint alleged, upon information and belief, that the Browns had provided information to the Consumer Protection Agency which caused an administrative action to be pursued against Healthy Choice. Faced with affidavits specifically denying that allegation, Healthy Choice was required to provide some evidence based on personal knowledge that the Browns had in fact provided that information. At the motion hearing, counsel represented that such evidence could be obtained in the form of an affidavit from an employee of the Consumer Protection Agency. However, no affidavit from the Consumer Protection Agency was presented. Rather, the affidavits submitted by Healthy Choice were from a part-owner of Healthy Choice and one of its employees. Nothing in those affidavits supported the allegation that the Browns provided information to the Consumer Protection Agency. Most of the allegations in the affidavit of Healthy Choice’s employee related to a divorce action and were not relevant to the allegations or cause of action in the complaint. Accordingly, there was no genuine issue of material fact established regarding whether the Browns provided information to the Consumer Protection Agency. 

At ¶ 5.

Van Denburgh v. Sweeney Land, 2013 UT App 265, No. 20120030-CA (November 7, 2013)

ISSUES: Prescriptive Easement;

Judge Davis,

David S. Van Denburgh, individually and in his capacity as the trustee of the David S. Van Denburgh Revocable Living Trust, appeal the trial court’s summary judgment ruling rejecting his claim to a prescriptive easement over a strip of land located on property jointly owned by Sweeney Land Company and Park City II, LLC (collectively, Sweeney). We affirm.

At ¶ 1.

“[T]he question of whether or not an easement exists is a conclusion of law.” Potter v. Chadaz, 1999 UT App 95, ¶ 7, 977 P.2d 533. To establish a prescriptive easement, a party must show, “by clear and convincing evidence,” Buckley v. Cox, 247 P.2d 277, 279 (Utah 1952), that its use of the area in question has been “(1) open, (2) notorious, (3) adverse, and (4) continuous for at least 20 years,” Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990). “[O]nce a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse.” Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998). The burden then shifts to the landowner opposing the easement to “establish[] that the use was initially permissive.” Id. at 311–12; cf. Buckley, 247 P.2d at 279; Harkness v. Woodmansee, 26 P. 291, 293 (Utah 1891) (“Where a person opens a way for the use of his own premises, and another person uses it also without causing damage, the presumption is, in the absence of evidence to the contrary, th[at] such use by the latter was permissive, and not under a claim of right.”). Additionally, “[t]he use by individual persons in common with the public generally is regarded as permissive, and by such common use no individual person can acquire a right by prescription as against the owner of the fee.” Thurman v. Byram, 626 P.2d 447, 450 (Utah 1981) (citation and internal quotation marks omitted); accord Kohler v. Martin, 916 P.2d 910, 914 (Utah Ct. App. 1996).

At ¶ 3.

Here, the trial court assumed, without deciding, that Van Denburgh’s use of the Path “was open and notorious for a continuous period of twenty years, and therefore, presumptively adverse” but determined that Sweeney defeated the presumption of adverse use with evidence that Van Denburgh’s use was permissive. . . .

At ¶ 5.

The Court reviews the evidence and finds that the evidence supports the trial court’s conclusion that Van Denburgh’s use was permissive.  Accordingly, no prescriptive easement is awarded.

At ¶¶ 5-13.

Koerber v. Robert J. DeBry, 2013 UT App 266, No. 20130567-CA (November 7, 2013)

ISSUES:  Sufficiency of Complaint to Establish a Landlord’s Employer as a Party to a Lease Agreement with a Tenant.

Per Curiam,

Claud R. Koerber and Jewel K. Skousen (Tenants) appeal the trial court’s order granting summary judgment in favor of Nancy A. Mismash (Landlord) and its previously entered order granting Robert J. DeBry & Associates, PC’s (DeBry) motion to dismiss. This is before the court on DeBry’s motion for partial summary disposition, which requests summary affirmance of the order dismissing the case as against DeBry, entered in October 2011. 

At ¶ 1.

Tenants asserted several causes of action against Landlord and her employer, DeBry. Although the causes of action varied in specifics, all were founded on the lease agreement and the disputes arising therefrom. Tenants attempted to assert their claims against DeBry, but only vaguely alleged what actions DeBry took to render it a party to the complaint against Landlord. The trial court dismissed the complaint against DeBry, determining that Tenants had failed to state a claim against DeBry for which relief could be granted.

At ¶ 2.

The allegations related to DeBry are insufficient to state a claim against it as a party. Some of the allegations are legal conclusions, such as the allegation that DeBry became a party to the contract based on vaguely asserted acts. Other allegations are merely conclusory and are unsupported by relevant surrounding facts. The statements alleged to have been made by Landlord, even if true, lack specifics to support a claim against DeBry. Tenants attempt to show that Landlord was acting on behalf of DeBry, but the allegations indicate the opposite—that DeBry was “assisting” Landlord and helped enforce the terms of the agreement. There is no factual allegation that DeBry had any direct role in the lease agreement, the predicate to the complaint. Overall, the few allegations regarding DeBry are either vague and conclusory or amount to legal conclusions, and are accordingly insufficient to preclude dismissal.

At ¶ 4.