January 30, 2014, Utah Court of Appeals Case Summaries

Unifund CCR v. Chan, 2014 UT App 25 (January 30, 2014)

            This is a Per Curiam decision in a debt collection matter.  Essentially the court holds that there is not a substantial issue for appellate review because the Appellees corrected a purported dispute of fact by filing a second Motion for Summary Judgment that addressed Appellants concerns and Appellant failed to file a rule 59 motion within the required ten days.

Jessop v. Hardman, 2014 UT App 28 (January 30, 2014)

Issues: Sufficiency of the Evidence; Irregularity in the Proceedings; Utah R. Evid. 606.

            This case involves a tort claim and appeals from the trial court’s denial of a motion for new trial alleging insufficient evidence to support the verdict and “irregularit[ies] in the proceedings.”  The facts of the case are essentially that an Hardman left a hot iron on an ironing board and left the room closing the door behind him.  Hardman’s friend puts a baby in a car seat next to the ironing board without telling Hardman.  The baby pulls the iron’s cord and severely burns itself.

            The irregularity in the proceedings was the court bailiff’s refusal to let two jurors call family to let them know the trial ran longer than expected and to make new arrangements for previously scheduled events.

            Appellant also challenges the trial court’s striking a paragraph from a juror’s declaration that was submitted in support of her Motion for New Trial.

            The Court rejects the insufficient evidence to support the verdict because there is no duty to warn a visitor of an open and obvious danger, and there was sufficient evidence for the jury to find that the iron was an open and obvious danger.

            The Court rejects the irregularities argument because it did not see any sign of coercion relating to the verdict.  The jurors were free to communicate with the judge about any concerns they had and they did not express any feelings of time constraints.

            The Court holds that the trial court did not abuse its discretion in striking a portion of the juror’s affidavit pursuant to Utah R. of Evid. 606.  The opinion contains a basic outline of the purpose of rule 606 and the importance of keeping jury deliberations confidential.

            Some important statements by the court are as follows:

“The trial court’s denial of a motion for a new trial will be reversed only if ‘the evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust.’” Mann v. Fredrickson, 2006 UT App 475, ¶ 8, 153 P.3d 768 (quoting Nelson v. Trujillo, 657 P.2d 730, 732 (Utah 1982)).

At ¶ 5

The trial judge did not give an Allen instruction, impose time limits on the jury, or otherwise urge the jurors to deliberate quickly. Indeed, no act of the trial judge is even at issue here. Moreover, the jurors knew how to communicate with the judge and in fact did so twice during deliberations, yet they never expressed concern over the timing of their deliberations. They deliberated for two hours. The judge stated that he met with all the jurors afterward and none mentioned a time constraint.4 We see no abuse of discretion here.

At ¶ 21.

We conclude that the trial court’s rulings were well within its discretion. The court refused to strike paragraph 4 of the declaration, which describes actions of the bailiff and other facts outside the jury’s deliberations. But the court struck paragraph 6, which describes the deliberations themselves and one juror’s opinion of other jurors’ mental states and voting motivations

At ¶ 29.

January 28, 2014 Utah Supreme Court Case Summaries

MacGregor v. Walker, 2014 UT 2, No. 20120452 (January 28, 2014)

Issue: voluntary assumption of a duty to aid abuse victims.

            In this case, the Supreme Court determines that The Church Of Jesus Chirst of Latter-day Saints did not voluntarily assume a duty to aid abuse victims by setting up a “Help Line” for clergymen who become aware of an abusive situation because 1) regardless of whether the Church voluntarily undertook to render a service to abuse victims by virtue of the Help Line, a clergy member’s failure to use the Help Line does not increase a victim’s risk of harm; and 2) public policy disfavors the imposition of a duty where it would discourage organizations from providing services that may ultimately benefit victims of abuse.  The following statements contain the most relevant language:

            Here, MacGregor argues that the Church Defendants owed her an affirmative duty to act under section 323 of the Restatement (Second) of Torts. Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.

At ¶ 12.

            Before a duty arises under section 323, a plaintiff must establish not only the existence of a voluntary undertaking, but also that (a) the undertaking increased plaintiff’s risk of harm, or (b) the harm suffered by the plaintiff resulted from plaintiff’s reliance on the undertaking. MacGregor does not claim that she relied on the Help Line. We therefore consider whether the Church’s creation of the Help Line increased her risk of harm.

At ¶ 19.

            MacGregor’s claim does not satisfy subsection (a) because neither the creation of the Help Line nor Walker’s alleged failure to use it increased the risk of harm to MacGregor. In other words, Walker’s alleged negligent performance did not put MacGregor in a worse position than she would have been in had the Church never created the Help Line.

At ¶ 24.

January 24, 2014, Utah Court of Appeals Case Summaries

Austin v. Bingham, 2014 UT App 15, No. 20120765-CA (January 24, 2014)

Issue: Findings of Fact Concerning Damages

            This case is about a land dispute between neighbors about a right-of-way that escalated into verbal threats, abusive behavior, and restrictions to the right-of-way.  The appellant challenges several findings of fact regarding damages.

            Basically the court emphasizes the duty to marshal evidence supporting the trial court’s findings and that they will defer to the trial court. The court finds that documentary proof of medical bills is not required for a court to make a finding if it finds testimony concerning the medical bills credible.

            At paragraph 19 the court states:

            Proof of the amount of damages does not require precision. Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1166 (Utah 1983). Rather, a plaintiff need only put on “evidence that rises above speculation and provides a reasonable, even though not necessarily precise, estimate of damages.” Atkin, 709 P.2d at 336. Proof of damages may therefore “be based upon approximations, if . . . the approximations are based upon reasonable assumptions or projections.” Id. This is because once the fact of damages has been established, any uncertainty in the amount of damages must be borne by the wrongdoer. Id.; see also Cook, 664 P.2d at 1166.

            The Court also rejects several arguments because the appellants failed to preserve them below.

Holladay v. Gunnison, 2014 UT App 17, No. 20120400-CA (January 24, 2014)

Issue: Contract Interpretation

            This case involves interpretation of a contract between two banks.  Both banks owned an interest in a defaulted loan and the property was not sufficient collateral for the loan.  The banks disagreed on how to apportion the proceeds of the collateral.  The trial court ruled that the contract was unambiguous and refused to consider extrinsic evidence support one bank’s argument.

            The Court of Appeals concludes that the provisions of the contract are ambiguous and that the extrinsic evidence should have been considered to determine the parties’ intent.

            At paragraph 12 the Court states:

      In interpreting a contract, appellate courts “look to the writing itself to ascertain the parties’ intentions.” Jones v. ERA Brokers Consol., 2000 UT 61, ¶ 12, 6 P.3d 1129. A contract is ambiguous “if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies.” Daines, 2008 UT 51, ¶ 25 (citations and internal quotation marks omitted). But terms are not ambiguous “simply because one party seeks to endow them with a different interpretation according to his or her own interests.” Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 17, 133 P.3d 428. Rather, “the proffered alternate interpretation . . . must be based upon the usual and natural meaning of the language used and may not be the result of a forced or strained construction.” Id. (citation and internal quotation marks omitted). “When an ambiguity exists [in a contract], the intent of the parties becomes a question of fact,” WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 22, 54 P.3d 1139 (citation and internal quotation marks omitted), and courts “may consider extrinsic evidence to determine” the contract’s meaning, Interwest Constr. v. Palmer, 923 P.2d 1350, 1359 (Utah 1996).

 Q-2, LLC v. Hughes, 2014 UT App 19, No. 20120607-CA (January 24, 2014)

Issue: Adverse Possession and Boundary by Acquiescence

            This case is about 1) when legal title to property transfers under the boundary by acquiescence doctrine; 2) the effect this decision has on subsequent adverse possession claims

A boundary by acquiescence is established when, for a period of at least twenty years, adjacent landowners mutually acquiesce to a visible boundary line and occupy the property up to that line.  See Jacobs v. Hafen, 917 P.2d 1078, 1080 (Utah 1996). The determination of when, for purposes of adjudicating the rights of later possessors, the legal title to property transfers under the boundary by acquiescence doctrine appears to be an issue of first impression for Utah Courts.

At ¶ 8.

We . . . conclude that once adjacent landowners have acquiesced to a visible boundary other than the recorded property line for the requisite twenty years, the encroaching landowner’s possession “ripen[s] into legal title” by operation of law, extinguishing the other landowner’s legal title to any part of the disputed land and leaving the previous owner with only “bare record title.” See Brown, 622 P.2d at 1177. Thus, a judicial determination of a boundary by acquiescence and quieting of title merely recognizes what has already occurred by operation of law: the transfer of legal title of the disputed land to the occupying landowner.

At ¶ 11.

            To establish a claim of adverse possession under color of title, the Hugheses must establish that they held and possessed the property adversely to the legal title for at least seven years prior to commencement of litigation. See Utah Code Ann. § 78B-2-208 (LexisNexis 2008). While occupation of real property is generally presumed to be “under and in subordination to the legal title,” id. property will be “considered to have been adversely held if a person in possession of the property . . . possesses a written document purporting to convey title,” id. § 78B-2-210(1). “In order to establish title by adverse possession, the party claiming adverse possession has the burden of proving that possession was open, notorious, and hostile and that taxes were paid for the entire statutory period.” Marchant v. Park City, 788 P.2d 520, 523–24 (Utah 1990).

At ¶ 15.

Because legal title passed to Q-2’s predecessor-in-interest by 1971, the Hugheses’ predecessor-in-interest could convey only “bare record title” to the disputed property to the Hugheses by the 1998 warranty deed, and legal title rested with Q-2 or its predecessor-in-interest at that time. Thus, the Hugheses’ possession of the entire property described by their warranty deed was adverse to the legal title of the disputed property. See Utah Code Ann. § 78B-2-210.

At ¶ 16.

            Judge Orme concurs in the decision, but writes concurrently to express his strong concern that the legal transfer of title prior to judicial declaration will have a bad effect upon the transferability of title and the trust citizens put in their deeds.  He asks the Supreme Court to accept certiorari and to reconsider the precedents that compelled this decision.

Red Bridge v. JAR Family Investment, 2014 UT App 21, No. 20130365-CA (January 24, 2014)

Issue: Unconscionability

            Appellants appeal the trial court’s order dismissing their contract dispute, which was based on an argument that the contract was substantively unconscionable, because in issuing its order the trial court made the mistaken statement that there must be both procedural and substantive unconscionability for an unconscionability case to prevail.

            The Court notes the mistake, in some circumstances substantive unconscionability alone is enough, but finds that it does not matter because the trial court found the contract at issue was not substantively unconscionable.  Appellants’ challenge to that finding was not adequately briefed.

January 16, 2014, Utah Court of Appeals Case Summaries

Four of the six opinions published on January 16, 2014, dealt with family law or criminal law.  Pursuant to my new policy, I have not summarized those cases.

Winegar v. Springville City, 2014 UT App 9, No. 20120898-CA (January 16, 2014)

ISSUE: Timeliness under the Utah Governmental Immunity Act; Denial of Claim; restriction of additional information in a reply memorandum

Judge Roth,

            The [Utah Governmental Immunity] Act provides that‚ “within 60 days of the filing of a notice of claim, the governmental entity or its insurance carrier shall inform the claimant in writing that the claim has either been approved or denied.” Id. § 63G-7-403(1)(a). “A claim is considered to be denied if, at the end of the 60-day period, the governmental entity or its insurance carrier has failed to approve or deny the claim.” Id. § 63G-7-403(1)(b). Then, “the claimant shall begin the action [in the district court] within one year after the denial of the claim or within one year after the denial period . . . has expired.” Id. § 63G-7-403(2)(b). On March 20, 2006—fifty-two days after the filing of the notice of claim—URMMA [Springville City’s Insurance Carrier] wrote the Winegars that it “must respectfully decline to make any voluntary payments on [the] claim.” The issue presented to us on appeal is whether the City established as a matter of law that the March 20 letter denied the Winegars’ claim so as to entitle the City to judgment on the basis that the complaint, filed in April 2007, was untimely. We agree with the Winegars that the City did not.

At ¶ 13.

            The Winegars disputed only the City’s representation as to when it had denied their claim and did so on two grounds. First, the Winegars disputed that the March 20 letter was actually a denial of their claim because the letter did not explicitly say the claim was denied but rather stated that URMMA “must respectfully decline to make any voluntary payments on [the] claim.” Second, they asserted that URMMA, not the City, wrote the March 20 letter and the letter did not identify URMMA as the City’s insurer. The Winegars further contend that the City did not explain that discrepancy in Fact Number 2, where the City simply alleged that it had “denied the claim by letter,” which was attached with no affidavit and no explanation of who URMMA was—“A claims adjusting company? An agent of Springville’s insurer? Springville’s insurer itself?” Thus, the Winegars argued that even if the letter amounted to a denial of their claim, the City had failed to establish that either the City or its insurer sent the March 20 letter, as the Act required, see Utah Code Ann. § 63G-7-403(1) (providing that only the governmental entity or its insurance carrier may approve or deny a claim).

At ¶ 15.

            The City’s initial statement of undisputed facts alleges that “Springville City” denied the Winegars’ claim by letter on March 20, 2006. This statement is called into question, at least on its face, by the attached March 20 letter, which is on URMMA letterhead and signed only by a “claims adjuster.” And while the letter itself refers to “the claim you have made against Springville City,” it does not contain any information that supports a reasonable evidentiary inference that although the City said it denied the claim, the City actually meant that it complied with the statutory denial requirements by having its insurer deny the claim. While one might reach the conclusion that URMMA was the City’s insurer by a series of logical steps—e.g., the City asserts that it denied the claim; under Utah law, the City could only deny the claim itself or through its insurer; the City itself did not write the March 20 letter; therefore, URMMA must be the City’s insurer—those steps require assumptions not supported by actual evidence and the conclusion they lead to is necessarily speculative. See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 (. . . ) In considering whether an inference may reasonably be drawn, a “reviewing court will stretch the evidentiary fabric as far it will go. But this does not mean [we] can take a speculative leap across a remaining gap . . . .” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (citation and internal quotation marks omitted). For the City to establish that it had denied the claim on March 20 in accordance with the Act, it must have introduced evidence establishing that URMMA was its insurer at the time, and the letter itself does not accomplish that.

At ¶ 20.

            The City acknowledged this problem in its reply memorandum supporting its motion for summary judgment by purporting to amend the original Fact Number 2 to read, “On March 20, 2006, City, through its insurer, the Utah Risk Management Mutual Association (“URMMA”), denied [the Winegars’] Notice of Claim.” (Emphasis added.) This is insufficient. A reply memorandum is “limited to rebuttal of matters raised in the memorandum in opposition.” Utah R. Civ. P. 7(c)(1). “Where a party first raises an issue in his reply memorandum, it is not properly before the trial court” unless the party has received leave of the court to raise a new issue. Soriano v. Graul, 2008 UT App 188, ¶ 12, 186 P.3d 960 (citations and internal quotation marks omitted). Moreover, even if the City’s amendment of Fact Number 2 could be construed as “rebuttal of matters raised in the [Winegars’] . . . opposition,” see Utah R. Civ. P. 7(c)(1), the amendment of Fact Number 2 alone does not demonstrate that the City is entitled to summary judgment as a matter of law, see id. R. 56(c). To prevail on summary judgment, the moving party must produce some factual evidence to demonstrate that there is no genuine issue of material fact. See Orvis v. Johnson, 2008 UT 2, ¶¶ 16, 18, 177 P.3d 600 ( . . . ). The City’s fact statement is not adequately supported. It amounts to a bare allegation, the truth and sufficiency of which have been called into question by the Winegars’ opposition. Without a supporting affidavit or some other evidence establishing that the City’s insurer was, in fact, URMMA, the City has failed to demonstrate that it is entitled to judgment as a matter of law.

At ¶21.

            Furthermore, the City’s attempt to add a crucial fact demonstrating its entitlement to summary judgment in the reply memorandum deprived the Winegars of an opportunity to fully challenge the summary judgment motion, either by contesting the new statement of undisputed facts or by raising other defenses, such as the estoppel defenses they raise on appeal. The Winegars took appropriate action under rule 7 by filing a motion for leave to file a response, but the district court did not resolve that motion prior to granting summary judgment. Indeed, it is not apparent from the record whether the court even saw the Winegars’ motion, as it was filed the day before the grant of summary judgment and was not yet ripe for the district court to resolve. See Utah R. Civ. P. 7(c)(1) (allowing the other party ten days to file an opposition to a motion); id. R. 7(d) (providing for submission to the district court for decision after briefing is complete). We therefore conclude that the Winegars were prejudiced by the lack of an opportunity to respond to the City’s reply memorandum.

At ¶ 22.

            Accordingly, we vacate the grant of summary judgment and remand for further proceedings. Because of the nature of our decision, we do not reach any of the other issues the Winegars raised regarding the district court’s decision.

At ¶ 23.

Porter v. Farmington City, 2014 UT App 12, No. 20120911-CA (January 16, 2014)

ISSUES: Premises liability

Senior Judge Greenwood,

Generally, a landowner is liable for injuries resulting from a temporary hazard only if it “knew, or in the exercise of reasonable care should have known, of any hazardous condition and had a reasonable opportunity to remedy the same.” Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992) (citation and internal quotation marks omitted). It is undisputed that the City did not have actual knowledge of the hole that injured Porter. Thus, the arguments on appeal center on whether the City should be deemed to have had knowledge of the hole’s existence because it created the hole [by using the sprinkling system that caused it] or, in the alternative, whether the City could be found to have had constructive knowledge of the hole due to the length of time it had existed [about three months].

At ¶5. 

If a plaintiff alleges that a defendant negligently failed to remedy a dangerous condition that the defendant did not create (as in Schnuphase), negligently failed to repair a dangerous malfunction in an otherwise safe system (as in Fishbaugh), or negligently allowed an otherwise safe condition to degrade over time into a dangerous condition (as in the instant case), then evidence of notice and a reasonable time to remedy are required to survive a motion for summary judgment or directed verdict. These requirements do not apply where the negligence claim requires the plaintiff to establish that the defendant actually created the dangerous condition or purposefully built the dangerous condition into the system for which the defendant is responsible. The rationale behind these distinct rules is that it is reasonable to presume that a party has notice of conditions that the party itself creates, but it is not reasonable to presume notice of conditions that someone else creates (as in Schnuphase), that arise from malfunctions (as in Fishbaugh), or that gradually evolve on their own.

[Goebel v. Salt Lake City S. R.R., 2004 UT 80, ¶ 22.]

At ¶ 7.

At most, the City “failed to repair a dangerous malfunction in an otherwise safe system” or “allowed an otherwise safe condition to degrade over time into a dangerous condition.” See id. ¶ 22. However, under such circumstances, “it is not reasonable to presume notice,” id., and the trial court’s refusal to impute notice to the City in this case was correct as a matter of law.

At ¶ 8.

Constructive Notice?

A landowner has constructive notice of a dangerous condition when the condition has “existed long enough that [the landowner] should have discovered it.” Jex v. JRA, Inc., 2008 UT 67, ¶ 16, 196 P.3d 576 (citation and internal quotation marks omitted). To establish constructive notice of an unsafe temporary condition, “a plaintiff must present evidence that would show . . . that it had been there for an appreciable time.” Id. ¶ 19 (omission in original) (citation and internal quotation marks omitted).

At ¶ 10.

The parties’ stipulated facts include no evidence that . . . reasonable inspection could have discovered the concealed hole. On appeal, Porter argues only that the City was “solely responsible for the maintenance, repair, and inspection of the sprinkling system” and that the City’s agents “routinely drive lawn mowers and trucks over the cemetery grounds.” However, the mere possibility that a City vehicle might have eventually revealed the hole by driving across it does not provide a reasonable basis for a jury to conclude that the City “should have discovered” the hole. See Jex, 2008 UT 67, ¶ 16.

At ¶ 12.

The Court affirms summary judgment in the city’s favor.

At ¶ 13.