November 29, 2013 Utah Court of Appeals Case Summaries

Cook v. Labor Commission, 2013 UT App 286, No. 20111030-CA (November 29, 2013)

ISSUES: Utah Workers’ Compensation Act, Medical Causation

Judge Christiansen,

     Petitioners Tysha R. Cook and Tristan Ritchie seek review of a final order entered by the Labor Commission Appeals Board denying their claims for compensation based upon the Utah Workers Compensation Act and the Utah Occupational Disease Act. We decline to disturb the Appeals Board’s decision.

At ¶ 1.

The Court reviews the factual background and procedural history of this case: Importantly; (1) Cook’s contraction of a “lump” on her lip, (2) her employer’s repeated denials of time off to see medical professionals which delayed biopsy of the lump, (3) the eventual discovery that the lump was malignant melanoma; (4) Cook’s death from the cancer; (5) Petitioners’ claim for dependant benefits from the Utah Labor Commission; and (6) the Labor Commission’s determination that the Utah Workers’ Compensation Act does not apply to this situation, and even if it did, Petitioners had failed to show medical causation.

At ¶¶ 2-9.

     The central issue for our review is whether the Board’s determination that Petitioners failed to establish medical causation linking the Bank’s conduct to Cook’s cancer and death was adequately supported by substantial evidence. Because “[m]edical causation is an issue of fact,” we “review the Commission’s findings under the substantial evidence standard” and “will sustain the Commission’s factual determination concerning medical causation only if its finding is adequately supported by the record.”  . . .  In other words, the Board’s factual findings are “accorded substantial deference and will not be overturned if based on substantial evidence, even if another conclusion from the evidence is permissible.” See Hurley v. Board of Review of the Indus. Comm'n, 767 P.2d 524, 526–27 (Utah 1988).

At ¶ 10.

     Under the UWCA, “[a]n employee . . . who is injured . . . by accident arising out of and in the course of the employee’s employment . . . shall be paid . . . compensation for loss sustained on account of the injury . . . .” Utah Code Ann. § 34A-2-401(1) (LexisNexis 2011). “This statute creates two prerequisites for a finding of a compensable injury. First, the injury must be ‘by accident.’ Second, the language ‘arising out of or in the course of employment’ requires that there be a causal connection between the injury and the employment.” Allen v. Industrial Comm’n, 729 P.2d 15, 18 (Utah 1986). To demonstrate the requisite causal connection, the petitioning party must prove both legal causation and medical causation. See id. at 25. However, if a party fails to establish medical causation, analysis of the legal causation element is unnecessary. Hymas v. Labor Comm’n, 2008 UT App 471, ¶ 8, 200 P.3d 218; see also Lancaster v. Gilbert Dev., 736 P.2d 237, 239 (Utah 1987). To establish medical causation, a “claimant must show by evidence, opinion, or otherwise that the stress, strain, or exertion required by his or her occupation led to the resulting injury or disability.” Allen, 729 P.2d at 27.

At ¶ 12.

The Court reviews the evidence presented to the Board and determines that they lack of causation determination was supported by substantial evidence.

At ¶¶ 12-20.

Lilley v. JP Morgan Chase, 2013 UT App 285, No. 20120625-CA (November 29, 2013)

ISSUES: Breach of Contract, Third-Party Beneficiary Claims, Applicability of Negligence Statute of Limitations vs. Breach of Contract Statute of Limitations

Judge Christiansen,

     Keith and Sharon Lilley (Plaintiffs) appeal from the district court’s order dismissing their breach of contract and negligence causes of action against Defendant Blake Ingram. We affirm.

At ¶ 1.

The Court outlines that background and procedural background of this case. Most importantly: (1) Defendant Ingram’s appraisal of property Plaintiffs intended to construct, pursuant to a contract with the lender, JP Morgan Chase; (2) Plaintiffs’ borrowing of money from JP Morgan Chase to construct the appraised home; (3) Plaintiffs’ default on the loan; (4) Plaintiff’s claims against Ingram asserting that Ingram breached the contract by performing a faulty appraisal causing them to borrow too much money and, alternatively, that Ingram performed a negligent appraisal causing them to borrow too much money; and (5) the trial court’s dismissal of both claims.

At ¶¶ 2-4.

Third-Party Beneficiary Status

     Plaintiffs first challenge the district court’s dismissal of their breach of contract claim. Because only Lender and Ingram are direct parties to the appraisal contract, Plaintiffs must establish that they are third-party beneficiaries of that contract in order to pursue an alleged breach. “The existence of third party beneficiary status is determined by examining a written contract.” Wagner v. Clifton, 2002 UT 109, ¶ 11, 62 P.3d 440 (citation and internal quotation marks omitted). “The written contract must show that the contracting parties clearly intended to confer a separate and distinct benefit upon the third party.” Id. (citation and internal quotation marks omitted). Indeed, “[i]t is not enough that the parties to the contract know, expect or even intend that others will benefit from the [contract] . . . . The contract must be undertaken for the plaintiff’s direct benefit and the contract itself must affirmatively make this intention clear.” SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 47, 28 P.3d 669 (alterations in original) (citation and internal quotation marks omitted). And “only if the written contract’s clear intent is to confer rights upon a third party may that third party enforce rights and obligations of the contract.” Wagner, 2002 UT 109, ¶ 13. Finally, “[a] third party who benefits only incidentally from the performance of a contract has no right to recover under that contract.” American Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182, 1188 (Utah 1996) . . . .

At ¶ 5.

     Plaintiffs argue that the “only reason Mr. Ingram performed an appraisal was for [Plaintiffs’] financial lending decision.” (Emphasis omitted.) However, the plain language of the appraisal report indicates that the function and purpose of the report was to assist Lender in “evaluating the subject property for mortgage lending purposes.” Plaintiffs have failed to identify any provision in the appraisal report suggesting that the appraisal was for their benefit. Instead, the written language of the appraisal report expressly states the opposite—that the report was not to be used by “any other party or for any other purpose.” (Emphasis added.) Therefore, the plain language of the appraisal report does not demonstrate a “clear intent . . . to confer rights” upon Plaintiffs such that they may “enforce rights and obligations of the contract.” See Wagner, 2002 UT 109, ¶ 13. Indeed, the plain language of the report expressly rejects such an intent.

At ¶ 7.

. . . Any knowledge on Ingram’s part that Plaintiffs would subsequently use the appraisal report is insufficient to create third-party beneficiary status in Plaintiffs because the appraisal report was not “undertaken for [Plaintiffs’] direct benefit,” nor did the appraisal report itself “affirmatively make this intention clear.” Id. (citation and internal quotation marks omitted). Accordingly, we conclude that the district court correctly dismissed Plaintiffs’ breach of contract claim as a matter of law because Plaintiffs are not third-party beneficiaries of the appraisal report.

At ¶ 9.

Statute of Limitations

     The district court also determined that Plaintiffs’ negligence claim was barred by the four-year statute of limitations. Utah Code section 78B-2-307(1)(a) provides that an “action may be brought within four years . . . after the last charge is made or the last payment is received . . . upon a contract, obligation, or liability not founded upon an instrument in writing.” Utah Code Ann. § 78B-2-307(1)(a) (LexisNexis 2012) (emphasis added). The final phrase of section 78B-2-307(1)(a) is a catch-all provision that includes negligence actions.

At ¶ 10.

     A third party may bring a tort action against an appraiser for negligent preparation of an appraisal report, regardless of thirdparty beneficiary status. In West v. Inter-Financial, Inc., 2006 UT App 222, 139 P.3d 1059, this court held that “[r]eal estate appraisers have an independent duty of care to persons with whom they have no contractual relationship when performing an appraisal.” Id. ¶ 22. However, such a negligence action must be filed within the four-year statute of limitations period. See Ladd, 2011 UT App 355, ¶ 4 n.1. Because Plaintiffs obtained financing from Lender in reliance on the appraisal report on December 16, 2005, any alleged injury resulting from that report must have occurred on that date. See Clark v. Deloitte & Touche LLP, 2001 UT 90, ¶ 22, 34 P.3d 209. Thus, the four-year limitations period had began to run as of December 16, 2005, and Plaintiffs’ negligence action must have been filed as of December 16, 2009. Plaintiffs filed their first complaint on March 11, 2011. Accordingly, the district court correctly determined that any negligence claim brought by Plaintiffs was clearly barred by the four-year statute of limitations imposed by section 78B-2-307(1)(a).

At ¶ 11.

     Alternatively, Plaintiffs argue that the four-year statute of limitations does not bar their claims because Ingram’s liability arose from “written instruments,” as opposed to an independent tort duty. Under this theory, they argue that the six-year statute of limitations set forth in Utah Code section 78B-2-309(2) applies because that statute allows for causes of action to be brought within six years “upon any contract, obligation, or liability founded upon an instrument in writing.” Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012) (emphasis added). 

At ¶ 12.

     However, the language of the relevant written documents is not sufficiently connected with Plaintiffs’ cause of action for the six-year statute of limitations to apply in this instance. Our supreme court has observed that Bracklein v. Realty Insurance Co. sets forth “the test for determining whether the six-year [statute of limitations] applies to a particular case.” Brigham Young University v. Paulsen Construction Co., 744 P.2d 1370, 1372 (Utah 1987). Under Bracklein, “if the fact of liability arises or is assumed or imposed from the instrument itself, or its recitals, the liability is founded upon an instrument in writing.” Bracklein v. Realty Insurance Co., 80 P.2d 471 (Utah 1938); see also Paulsen, 744 P.2d at 1372. The liability must “grow[] out of written instruments, not remotely or ultimately, but immediately.” Bracklein, 80 P.2d at 476 (emphasis, citation, and internal quotation marks omitted). The Bracklein court further explained,

If the instrument acknowledges or states a fact from which the law implies an obligation to pay, such obligation is founded upon a written instrument within the statute. If the writing upon its face shows a liability to pay, such liability is on a written instrument within the statute of limitations.

Id.

At ¶ 13.

     Again, the only document available for our review is Ingram’s appraisal report. Nothing in this report suggests, either implicitly or on its face, that “liability arises or is assumed or imposed” upon Ingram with respect to Plaintiffs. . . .

At ¶ 14.

. . . Thus, Plaintiffs have no cognizable claim that would fall within the six-year statute of limitations.

At ¶ 15.

     Accordingly, we conclude that the district court correctly dismissed all of Plaintiffs’ claims against Ingram. Affirmed.

At ¶ 16.

In re C.J., 2013 UT App 284, No. 20130885-CA (November 29, 2013)

Per my previously established policy, I will not outline this decision because Appellant challenges the sufficiency of evidence supporting a juvenile court’s determination to terminate parental rights.

Salt Lake City v. Christensen, 2013 UT App 283, No. 20121017-CA (November 29, 2013)

Per my previously established policy, I will not outline this decision because Appellant challenges the sufficiency of evidence supporting his convictions for assault on a police officer and interfering with an arrest.

State v. Bragg, 2013 UT App 282, No. 20120304-CA (November 29, 2013)

ISSUES, Ineffective Assistance of Counsel, Rule 23B remand, Prosecutorial Misconduct, Credibility Evidence, Trial Bifurcation, Prior Acts Evidence, Due Process Notice of Charged Conduct

Senior Judge Billings,

     Troy Bragg appeals from his convictions on three counts of aggravated sexual abuse of a child, each a first degree felony, see Utah Code Ann. § 76-5-404.1 (LexisNexis Supp. 2013). For the reasons stated herein, we reject Bragg’s arguments on appeal and affirm his convictions.

At ¶ 1.

The Court outlines the background of this case.

At ¶¶ 2-11.

Ineffective Assistance of Counsel

     Bragg argues that his trial counsel provided him with ineffective assistance of counsel based on multiple allegations of counsel’s deficient performance at trial. These allegations include counsel’s failure to respond to the State’s pretrial motion to admit prior act evidence under rule 404 of the Utah Rules of Evidence, failure to respond to the State’s motion to admit the recorded testimony of B.M. and his older brother pursuant to rule 15.5 of the Utah Rules of Criminal Procedure, and “opening the door” to rebuttal testimony from Bragg’s son (Son) by eliciting Bragg’s testimony denying his previous abuse of Son.3 To establish ineffective assistance of counsel, Bragg must show “(1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d 310 (citation and internal quotation marks omitted); see also Strickland v. Washington, 466 U.S. 668 (1984).

At ¶ 19.

     We disagree with Bragg that counsel performed ineffectively by failing to oppose the State’s motions to allow prior bad acts evidence and to admit the recorded testimony of B.M. and his older brother. It appears that the State’s motions were well taken, and Bragg has not established on appeal that the motions would not have been granted in large part even if his counsel had formally opposed the motions. Rule 404(c) of the Utah Rules of Evidence provides for the admission of “evidence that the defendant committed any other acts of child molestation” to prove propensity in child molestation cases. Utah R. Evid. 404(c)(1). Further, rule 15.5 of the Utah Rules of Criminal Procedure provides a procedure whereby the recorded testimony of children under the age of fourteen may be played to a jury. See Utah R. Crim. P. 15.5(a). To the extent that the State’s motions sought to admit evidence that was clearly allowed under these rules, counsel’s failure to formally oppose the motions cannot be deemed deficient performance by counsel. See State v. Gunter, 2013 UT App 140, ¶ 35, 304 P.3d 866 (“There is no requirement that counsel engage in futile acts.”). 

At ¶ 20.

     Bragg also argues that his trial counsel provided ineffective assistance when he “opened the door” to rebuttal testimony from Son that Bragg had sexually abused him in a manner similar to how Bragg was accused of abusing B.M. The allegations that Bragg had previously abused Son only came to light on the first day of trial, during the hearing on the admission of evidence under rule 404. At the hearing, while Daughter was describing her own childhood abuse by Bragg, she was asked if she had ever witnessed Bragg sexually abusing anyone else. She responded that she had witnessed Bragg abusing her younger brother, Son, when he was about B.M.’s age. Daughter repeated this information during her subsequent testimony before the jury. Prior to Bragg taking the witness stand, the prosecutor warned Bragg’s counsel that if Bragg denied abusing Son, the prosecutor would seek to introduce Son’s own testimony about the alleged abuse.

At ¶ 22.

     Thus, by the time Bragg took the stand, his counsel was faced with two bad options: fail to question Bragg about his abuse of Son, leaving unchallenged an allegation of abuse very similar to Bragg’s charged abuse of B.M.; or have Bragg deny the abuse, knowing that the State would then likely put Son on the witness stand as a rebuttal witness. Even if counsel’s necessary election between these two bad options does constitute deficient performance, we are unconvinced that counsel’s election prejudiced Bragg in light of the multitude of other evidence against him, which included testimony from both B.M. and his brother describing Bragg’s abuse of B.M. as well as Daughter’s descriptions of Bragg abusing both her and Son.

At ¶ 23.

     In sum, we conclude that Bragg has failed to demonstrate actions or omissions by his trial counsel that were both deficient and prejudicial. See generally State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d 310. For these reasons, we reject Bragg’s ineffective assistance of counsel claims.

At ¶ 24.

Prosecutorial Misconduct

     Bragg argues that he is entitled to a new trial due to misconduct by the prosecutor during his cross-examination of Bragg. At one point during the lengthy cross-examination, after Bragg had provided an explanation of one of the alleged instances of abuse, the prosecutor stated, “Would it surprise you that I don’t believe a word you just told me?” Bragg’s counsel immediately sought to object to the prosecutor’s comment, but the district court anticipated and sustained the objection on the grounds that the prosecutor’s comment was “argumentative.” The prosecutor replied, “I’ll withdraw that, your Honor. I’m sorry,” and continued the cross-examination without further incident.

At ¶ 25.

     To obtain a new trial based on prosecutorial misconduct, Bragg must show that “‘the actions or remarks of . . . counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict’” and that, under the circumstances of the particular case, “‘the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.’” State v. Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7 (quoting State v. Longshaw, 961 P.2d 925, 928 (Utah Ct. App. 1998)).  We agree with Bragg that the prosecutor’s comment expressing his own disbelief of Bragg’s testimony was improper. Cf. State v. Davis, 2013 UT App 228, ¶ 102, 311 P.3d 538 . . . However, under the circumstances, we see no prejudice to Bragg resulting from the comment.

At ¶ 26.

The Court explains that there was no prejudice because the Court immediately responded by sustaining an objection, the prosecutor withdrew the remark, and the judge informed the jury two times that it was to consider only the evidence admitted in the case and that statements by the attorneys did not constitute evidence.  Further, the Court explains that “the effect of the prosecutor’s comment must be weighed against the other evidence in the case” and that the evidence of guilt is so extensive that the single improper comment could not have prejudiced the case.

At ¶¶ 27-28.

Testimony Bolstering B.M.’s Credibility

     Bragg argues that the district court committed plain error when it allowed the detective who had conducted the recorded interview of B.M. to testify that B.M.’s interview statements seemed “genuine” and that B.M. did not appear to have been coached. . . .

At ¶ 29.

. . . We agree with Bragg that the admission of this testimony constituted error that should have been obvious to the district court.

At ¶ 30.

     Rule 608(a) of the Utah Rules of Evidence “prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642; see also Utah R. Evid. 608(a). The detective’s testimony that B.M. appeared “to be genuine” during his interview was a direct comment on B.M.’s truthfulness and, as such, clearly violated rule 608. See Adams, 2000 UT 42, ¶ 14. Additionally, testimony that a sexual abuse victim’s interview statements were consistent and did not appear to be coached has been held to constitute both error and obvious error. See id. ¶¶ 19–20. Here, the district  court’s admission of the detective’s testimony that B.M. was consistent and genuine and did not appear to have been coached similarly constitutes obvious error.

At ¶ 31.

     However, even obvious error by the district court will not result in the reversal of a criminal conviction unless the error was prejudicial, i.e., unless it created “a sufficiently high likelihood of a different result such that our confidence in the outcome is undermined.” Id. ¶ 20. Here, as in State v. Adams, 2000 UT 42, 5 P.3d 642, there was “ample evidence” of Bragg’s guilt above and beyond the improperly bolstered testimony. See id. ¶ 21. In addition to B.M.’s interview testimony, the State presented Mother’s testimony about events occurring between Bragg and B.M., Daughter’s testimony of Bragg’s prior sexual abuse of both herself and Son, and evidence of Bragg’s own inculpatory statements. In light of this ample evidence, our confidence in the jury’s verdict is not undermined by the detective’s testimony improperly bolstering B.M.’s credibility.

At ¶ 32.

Bifurcation

     Bragg argues that the district court committed plain error when it failed to sua sponte bifurcate his trial into a guilt phase and an aggravation phase. Under such a scheme, the State would have had to prove Bragg’s sexual abuse of B.M. before the jury heard evidence of the aggravating factor—Bragg’s prior convictions for sexually abusing Daughter. Bragg relies on State v. Reed, 2000 UT 68, ¶ 22, 8 P.3d 1025, as establishing that bifurcation was required.

At ¶ 33.

     However, Reed expressly recognized that bifurcation is not required when the aggravating conviction is otherwise admissible at trial. See id. ¶¶ 25–31 (holding that trial court did not err in failing to bifurcate trial where aggravating offense was admissible under rule 404(b) of the Utah Rules of Evidence). In this case, the district court correctly determined that Bragg’s prior convictions, as well as Daughter’s testimony about the conduct giving rise to those convictions, were admissible under rule 404(c) of the Utah Rules of Evidence. Thus, under Reed, Bragg has not demonstrated any error by the district court in failing to bifurcate his trial.

At ¶ 34.

Rule 404 Issues

     Bragg argues that the district court committed plain error in admitting evidence of Bragg’s prior bad acts under rules 404(b) and 404(c) of the Utah Rules of Evidence. Bragg also argues that the district court’s jury instructions regarding this evidence were insufficient and constituted plain error. We disagree.

At ¶ 35.

     As to the admission of prior act evidence, Bragg acknowledges that the district court did not admit any evidence pursuant to rule 404(b). On appeal, Bragg fails to identify any particular evidence that was admitted under rule 404(c) but should not have been.9 Further, the interpretation and application of rule 404(c) appears to be a matter of first impression in Utah, making a challenge to rule 404(c) evidence particularly unsuited for a plain error analysis. See State v. Davis, 2013 UT App 228, ¶ 32, 311 P.3d 538 (“[A]n error is not obvious if there is no settled appellate law to guide the trial court.” (citation and internal quotation marks omitted)). For these reasons, we reject Bragg’s argument that the court committed plain error in admitting prior bad act evidence.

At ¶ 36.

     As to the rule 404 instructions, Bragg’s counsel invited any error in the instructions by affirmatively approving them. See State v. Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804 (“A defendant invites error where he affirmatively approve[s] of the jury instructions at trial.” (alteration in original) (citation and internal quotation marks omitted)). During the jury instruction colloquy, defense counsel asked if the district court would be “keeping” the proposed rule 404 instructions. The district court stated that it would do so if the parties agreed that keeping the proposed instructions was appropriate, to which defense counsel responded, “I think that’s acceptable.” This affirmative representation to the district court that the rule 404 instructions were acceptable to defense counsel invited any error in the content of the instructions and precludes plain error review.

At ¶ 37.

Due Process Notice of Charged Conduct

     Bragg argues that his due process and statutory rights to adequate notice of the charges against him were violated because “the Information was unclear as to what conduct was charged, and what conduct the State purported to use as ‘prior bad acts’ evidence.” . . . We disagree.

At ¶ 38.

     It appears that Bragg’s claimed confusion about the exact nature of the charges arose in part from the format of the information, which merely alleged as to each count that Bragg “did commit sexual abuse of a child” without enumerating the specific acts that constituted the charged offense. In addition, each count listed potentially applicable aggravating factors, which included that Bragg “used, showed, or displayed pornography” during the offense.

At ¶ 39.

The Court finds that Bragg’s notice or other due process rights were not violated, despite any lack of clarity in the information, because Defendant had several opportunities to seek clarification on the Prosecution’s theory of the case.  Particularly,

Bragg waived his right to a preliminary hearing, foregoing one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed. Bragg could also have filed a pretrial motion for a bill ofparticulars, but elected not to. . . .  Nor is there any other indication in the record that, in the weeks and months leading up to trial, Bragg was concerned about inadequate notice of the charges against him. 

Further,

the prosecutor outlined the State’s theory of the case at both the rule 404 hearing and in opening arguments. In each instance, the prosecutor identified the factual basis of the three charged counts . . . . To the extent that these factual allegations constituted a surprise to Bragg or his counsel, Bragg could have requested a continuance, but he did not do so.

At ¶¶ 40-41.

The Court rejects Bragg’s Cumulative Error argument.

At ¶¶ 43-44.