March 7, 2013, Utah Court of Appeals Cases

March 7, 2013

Utah Court of Appeals Cases

Cook v. Cook, 2013 UT App 57, No. 20120035‐CA (March 7, 2013)

Affirming Judge Ben Hadfield’s First District, Brigham City Department, divorce decree.

Husband appeals the adequacy of the trial court’s findings.  Husband also challenges the substance of the trial court’s ruling.

Judge Voros,

The Court declines to consider the merits of Husband’s challenges to the adequacy of the trial court findings because Husband did not preserve the issue at the trial court level.

At ¶¶ 3-4.

The Court determines that the trial court’s other rulings were not an abuse of discretion, even though they departed from the custody evaluator’s recommendation.

“[i]t is well settled that the present value . . . of retirement accounts accrued during the marriage[] are marital assets and, whenever possible, should be valued as of the time of the divorce.” Dunn v. Dunn, 802 P.2d 1314, 1319 (Utah Ct. App.

1990).

At ¶ 11.

Livingston Financial, LLC v. Migliore, 2013 UT App. 58, No. 20120551‐CA (March 7, 2013)

Affirming Judge Robert Adkins, Third District, Tooele Department.

The Court dismisses two issues on appeal for lack of jurisdiction due to untimely notice of appeal.  The Court affirms the trial court’s denial of attorney fees sought pursuant to Utah Code Ann. § 78B-5-825.

Judge Orme,

A rule 60(b) motion does not toll the time for appeal from a final judgment under rule 4(b), but an order denying relief under rule 60(b) is an appealable order. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989) (“It is well settled under Utah law [that] an order denying relief under Rule 60(b) is a final appealable order.”).

At ¶ 3.

In the May 12, 2012 order awarding attorney fees, the district court found that Livingston prevailed in the matter; that the renewed motion to set aside the judgment was frivolous for the reasons stated in the December 2011 ruling; and that the renewed motion was brought to hinder and/or delay Livingston in collecting on the judgment. After finding that the affidavit of Livingston’s counsel was sufficient and the fees sought were reasonable, the district court awarded Livingston $5,035 in attorney fees. Thus, the district court made the required findings to support an award under section 78B‐5‐825. See Hermes Assocs. v. Park’s Sportsman, 813 P.2d 1221, 1225 (Utah Ct. App. 1991) (stating that the statute requires that the party seeking fees must prevail, the claim asserted by the opposing party must be without merit, and the claim must not be asserted in good faith).

At ¶ 8.

A party acts in bad faith when he brings an action and either (1) lacks an honest belief in the propriety of the activities in question, (2) intends to take unconscionable advantage of others, or (3) intends to or has knowledge of the fact that his actions will hinder, delay, or defraud others. Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (citations and internal quotation marks omitted).

At ¶ 9.

Dinger v. Dept. of Workforce Services, 2013 UT App 59. No. 20120093‐CA (March 7, 2013)

Original Proceeding.

Judge McHugh,

Dinger challenges the Department of Workforce Service’s determination that he is ineligible for unemployment benefits.  The Court determines that Dinger failed to marshal the evidence and that the Department’s findings were supported by substantial evidence and declines to disturb the ruling.

“Substantial evidence is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d 746, 758 (Utah Ct. App. 1997) (citations and internal quotation marks omitted).

At ¶ 12.

The Court outlines some rules governing conduct which may constitute insubordination.

At ¶ 16.

Antion Financial v. Christensen, 2013 UT App. 60, No. 20100750‐CA (March 7, 2013)

Affirming in part and reversing in part Judge Denise Lindberg, Third District, Salt Lake Department.

The Court interprets Utah Code section 57‐1‐27, which governs the public sale of property under a trust deed

Judge Christiansen,

Background:

During a trust sale for a piece of property there were three bidders.  The top bidder failed to meet the terms to purchase the property and revoked its bid.  Accordingly, the Trustee offered to sell to the second highest bidder, defendant.  Defendant “resubmitted” its bid and agreed to purchase, but was unable to meet the terms to purchase the property and revoked the ”resubmitted” bid. The third bidder, Antion Finanacial, also the beneficiary of the trust deed, took the property, and sued the first two bidders for the sum lost due to their failure to purchase the property.  The trial court entered a judgment against Christensen and he appeals.

Our reading of the plain language of the statute, in conjunction with our analysis of a prior version of the statute, leads us to conclude that the legislature intended for the trustee’s acceptance of the highest bid to constitute a rejection of all lower bids. Thus, each bid is considered an irrevocable offer, but only until the highest bid has been accepted. At that point, the trustee rejects all of the lower bids. If the highest bidder fails to perform, as occurred in this case, the trustee may either renotice the sale or sell to the next highest bidder who remains willing to purchase at his or her bid price. The next highest bidder, in other words, the original, second highest bidder—here, Christensen—may resubmit his or her offer, which likewise then becomes irrevocable until the trustee accepts it. If the next highest bidder (the original second highest bidder) does not resubmit his or her bid, then the trustee shall sell to the third highest bidder, who would become the next highest bidder. Or, if the next highest bidder (here, the second highest bidder) fails to perform, the trustee shall again have a choice between renoticing the sale or selling to the next highest bidder (the original third highest bidder).

At ¶ 20.

In providing for the next highest bidder to resubmit his or her bid, the statute creates a scenario where the identical bid information sheet utilized in the original trustee sale carries over and provides the required writing to satisfy the statute of frauds. Thus, in a trustee’s sale context, as long as the terms of sale remain the same, a bidder information sheet continues to be a written memorialization of the sale of the foreclosed property.

At ¶ 28.

The Court next determines how to calculate damages.  The statute provides that a bidder refusing to pay is liable for any loss occasioned by the refusal, including interests [and] costs . . . .”  Urah Code § 57-1-27(1)b).

At its most basic level, the parties’ dispute over the calculation of Antion’s damages comes down to whether the trial court erred by not calculating Antion’s damages as the difference between Christensen’s bid price and the fair market value of the property on the date of the credit sale, or if the trial court instead correctly measured damages in the amount it would take to put Antion back in the position it would have been in had Christensen performed. We find Christensen’s argument compelling.

At ¶ 31.

Because section 57‐1‐27 is not more specific concerning the determination of the amount of “any loss occasioned by the refusal,” we look to the deficiency statute to discern the legislature’s intent.

At ¶ 33.

The parties agree that the fair market value of the property is $1,500,000. The measure of Antion’s loss is the difference between Christensen’s bid of $1,500,002 and the amount for which the property actually sold, so long as the sale price exceeds the fair market value. Here, the sale price, represented by Antion’s credit bid, was $1,500,001, an amount that exceeded the agreed‐upon fair market value. Accordingly, Antion’s “loss occasioned by the refusal” of Christensen to honor his bid was one dollar.

At ¶ 35.

[T]he statute’s plain language leaves no doubt that the legislature intended to award only those attorney fees and costs, “occasioned by the refusal” of the winning bidder to perform. See id. The intent of the statute is not to award attorney fees incurred in litigating those damages.

At ¶ 37.

State v. Augustine, 2013 UT App 61, No. 20110454‐CA (March 7, 2013)

Judge Davis,

Exclusion of Expert Testimony Regarding “Extreme Emotional Distress”

The trial court . . . excluded [Augustine’s] expert testimony [about “significant issues in [Augustine’s] background, childhood and onward, that would affect his ability to deal with certain stressors”] on relevance grounds, explaining that extreme emotional distress involves “an objective, . . . reasonable person” standard and, as proffered, the expert testimony would address only a subjective standard of whether the behavior “was reasonable for this individual.”

At ¶ 2.

We affirm the trial court’s exclusion of the expert testimony, but we do so on slightly different grounds than those cited by the trial court.

At ¶ 3.

The [extreme emotional distress] defense cannot be based on emotions and stress a defendant brought about himself; rather, “a person suffers from an extreme emotional disturbance when he is exposed to extremely unusual and overwhelming stress.” Shumway, 2002 UT 124, ¶ 9 (citation and internal quotation marks omitted). This distinction of “exposed” versus “self‐imposed” “guide[s] the evaluative process of extreme emotional distress claims in our courts.” White, 2011 UT 21, ¶¶ 22–23 (recognizing that because “all intentional homicides, with the exception of those by cold‐blooded killers or in the course of a felony, are abnormal acts for the perpetrators and the result of strong emotions and stresses[,] . . . a distinction must be drawn so that this defense will only be applicable to those homicides which appropriately qualify under the underlying purpose of this mitigating defense and not en masse to all acts constituting murder, in the second degree” (citation and internal quotation marks omitted)).

At ¶ 5.

The Court does not review the trial court’s exclusion of expert testimony or jury instruction on the extreme emotional distress issue because Augustine was not entitled to the defense.

At ¶ 7.

The triggering stressors that Augustine enumerates are largely self‐imposed—he sought out J.E. for retribution for what was an assumption that J.E. indirectly passed along an STD to Augustine. Augustine went to J.E.’s house looking for a fight. Thus, the ensuing fight and adrenaline spiking are products of his own behavior. . . . “Thus, defendant’s emotional disturbance was a product of his knowingly or intentionally involving himself in the commission of a crime and [is not] excusable [under the extreme emotional distress defense].” See State v. Gardner, 789 P.2d 273, 276, 283 (Utah 1989)

At ¶ 7.

Mens Rea Element of Accomplice Liability

Augustine argues that the accomplice liability jury instruction did not adequately explain the mens rea requirement for the underlying offense, attempted murder.  The Court reviews both the accomplice liability instruction and the attempted murder instruction together, and determines that when read together the instructions accurately informed the jury of the mens rea requirement for attempted murder on an accomplice liability theory.

At ¶ 10.

Compelled Testimony

Last, Augustine contends that after Stapley informed the court of his intention to remain silent, having Stapley subsequently refuse to testify in the presence of the jury allowed the State to support its case with the inferences that could be drawn from Stapley’s refusal, thereby denying Augustine his constitutional right to a fair trial.

At ¶ 11.

The issue here boils down to whether the conversation that occurred outside of the jury’s presence during which Stapley indicated that he had been planning on refusing to testify amounted to his having actually invoked a Fifth Amendment privilege. A witness’s “exercise of the [Fifth Amendment] privilege is not evidence to be used in the case by any party.” State v. Travis, 541 P.2d 797, 799 (Utah 1975) . . . It “is sufficient to defeat [the] suggestion [that a witness is being called for an] improper . . . purpose” when the attorney calling the witness has “a colorable—albeit ultimately invalid—argument” that the witness could not validly claim the privilege. See id. Compare Namet, 373 U.S. at 188 . . . . Thus, “reversible error is [not] invariably committed whenever a witness” is called before the jury and “claims his privilege not to answer.” Namet, 373 U.S. at 186; accord State v. Boyland, 495 P.2d 315, 317 (Utah 1972).

At ¶ 12.

Under the facts and circumstances of this case, we do not believe that error, let alone reversible error, occurred or that Augustine’s constitutional rights were violated when the trial court permitted the State to call Stapley as a witness simply because there was a likelihood that Stapley would refuse to testify regardless of whether he could validly do so. The parties and the trial court were unsure whether Stapley could validly claim the privilege. Stapley was present when both his trial counsel and the trial court expressed their hesitation as to whether Stapley could validly claim a Fifth Amendment privilege in this case and he was reminded by his counsel and the court what the ramifications of remaining silent would be if the privilege was deemed inapplicable. Given the emphasis on the uncertainty as to what Stapley’s rights were in this case, it was reasonable for the State to call Stapley to allow him the opportunity to change his mind and to determine if the trial court would accept Stapley’s exercise of the privilege. This is far from a situation where the prosecutor “call[ed] a witness who he kn[ew would] claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.” See Travis, 541 P.2d at 799 (citation and internal quotation marks omitted). The State did not pose any questions to Stapley before he was excused, Stapleyuttered four words on the witness stand, and the trial court denied the State’s attempt to recall Stapley as a rebuttal witness after the defense rested. Without more, we are not convinced that the prosecution’s actions amount to what Augustine describes as a “flagrant . . . attempt[] to improperly influence the jury.” (Internal quotation marks omitted.) Accordingly, we conclude that it was not reversible error or a violation of Augustine’s constitutional rights for the State to request and the trial court to require that Stapley refuse to testify in the presence of the jury.

At ¶ 14.

Hollenbach v. Salt Lake City Civil Service Commission, 2013 UT App 62, No. 20121073‐CA (March 7, 2013)

Original Proceeding

Per Curiam Decision,

Greg Hollenbach seeks review of the Salt Lake City Civil Service Commission’s December 13, 2012 discovery and prehearing order. The Court determines that the order was not a final resolution of the matter and it lacks jurisdiction.

State v. Knowlden, 2013 UT App. 63, No. 20120311‐CA (March 7, 2013)

Affirming Judge Derek Pullan’s, Fourth District, Heber Department, order denying Defendant’s motion to withdraw a no contest plea.

Per Curiam Decision,

A “plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made.” Utah Code Ann. § 77‐13‐6(2)(a) (LexisNexis 2012). “A plea is knowing and voluntary if it is made ‘with sufficient awareness of the relevant circumstances and likely consequences.’” State v. Moa, 2012 UT 28, ¶ 29, 282 P.3d 985 (quoting Bradshaw v. Stump, 545 U.S. 175, 183 (2005)). Further, “[t]o show that a plea was not knowing and voluntary, a defendant must show either that he did not in fact understand the nature of the constitutional protections that he was waiving by pleading guilty, or that he had ‘such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.’” State v. Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371 (quoting Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976)).

At ¶ 3.

Knowlden acknowledges that the district court complied with rule 11 of the Utah Rules of Criminal Procedure. During his plea colloquy, Knowlden represented that he had sufficient time to speak with his counsel. Further, he acknowledged that he understood all of the rights he was waiving by entering his plea. This included the right to prepare a defense and confront the witnesses against him. Thus, Knowlden understood that he was giving up the right to conduct more discovery and develop additional defenses by entering his pleas. Further, while Knowlden indicated during the colloquy that he did not agree with the factual basis supporting the charges he does not allege that he failed to understand those facts. Accordingly, Knowlden fails to demonstrate that he did not understand the constitutional protections he was waiving or the factual basis for the charges against him. Thus, he has failed to demonstrate that his pleas was not knowing.

At ¶ 5.

Knowlden also fails to demonstrate that his pleas were not voluntary. Knowlden’s expressed desire to assert his right to delay sentencing in order to think about the proceedings does not demonstrate that the pleas were not voluntary. Nothing in that statement demonstrates a lack of voluntariness. At most, it shows trepidation or second thoughts, but trepidation or second thoughts do not make no contest pleas involuntary. See United States v. Isom, 85 F.3d 831, 837 (1st Cir. 1996) (stating that a motion to withdraw must rest on more than “defendant’s second thoughts about some fact or point of law”). Therefore, Knowlden has failed to demonstrate that his pleas were not voluntary.

At ¶ 6.

Utah Supreme Court Cases, March 5, 2013

March 5, 2013

Utah Supreme Court Cases

Van De Grift v. State, 2013 UT 11, No. 20110994 (March 5, 2013)

Affirming Judge Paul Maughn’s, Third District, Salt Lake Department decision that the Governmental Immunity Act barred Plaintiff’s claim alleging negligent supervision of a parolee.

Justice Nehring,

Background:

UTAH CODE § 63G-7-301(5)(b) provides an exception to the waiver of governmental immunity for any “injury [that] arises out of, in connection with, or results from . . . assault, battery, false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation of civil rights.” 

Appellants argue that the deceit exception to immunity should apply only to deceit by a government employee, not to deceit by a third party.

Holding:

[T]he plain language of [Utah Code § 63G-7-301(5)(b)] forecloses Appellants’ argument that the intentional torts listed must be committed by an employee of the State.

At. ¶ 9.

We clarify that subsection (b) contemplates only the intentional tort of deceit. It appears in a list of other intentional torts. . . . In the Governmental Immunity Act, subsection (f) is broader than subsection (b). Subsection (f) covers misrepresentation by a government employee, even if it is negligent or does not amount to deceit. Deceit in subsection (b) refers to the intentional tort of deceit, not any action that could colloquially be described as deceitful.

At ¶ 13.

Osguthorpe v. Wolf Mountain, 2013 UT 12, Nos. 20100928 March 5, 2013)

Affirming Judge Robert Hilder, Third District., Salt Lake Department

The D.A. Osguthorpe Family Partnership (Osguthorpe) appeals the district court’s denial of its motion to compel arbitration of claims between ASC Utah, Inc., (ASCU) and Wolf Mountain Resorts, L.C. (Wolf Mountain).

Justice Durham,

The Court reviews the provisions of the contract and determines:

Upon close examination of the default and arbitration provisions of the SPA Agreement, we conclude that the SPA disputes between ASCU and Wolf Mountain are not within the scope of the arbitration provision and that even if they were, Osguthorpe would not have a right to compel arbitration of claims between two other parties.

At. ¶ 9.

In response to Appellants complaint that its due process rights were violated when the trial court ruled on its motion without allowing oral argument, the Court states:

We have held that “due process requires that those with an interest in a proceeding be given notice and an opportunity to be heard in a meaningful manner before their interests are adjudicated by a court.” Salt Lake Legal Defender Ass’n v. Atherton, 2011 UT 58, ¶ 2, 267 P.3d 227. Here, Osguthorpe fully briefed the matter to the district court, and the court noted in its written order that it “read all of the briefing.” The district court complied with rule 7(e) in ruling on the motion without a hearing, see supra ¶ 18, and Osguthorpe has not argued that rule 7(e) is constitutionally inadequate.

At ¶ 19.

Summary Judgment: Five Tips for a Better Statement of Undisputed Facts

As a judicial law clerk, I am regularly analyzing motions for summary judgment.  I often commiserate with judges concerning attorneys’ shocking lack of understanding on how to write a good motion for summary judgment.  This post will focus of the most common complaint - the Statement of Undisputed Facts.

Tip One: Don’t Blend Conclusions of Law With The Facts

Perhaps the most common complaint about a movant’s statement of undisputed facts is that it blends conclusions of law with facts.  This practice invites objection to the statement based solely on the statement’s imbedded legal conclusion, rather than a dispute based on the fact asserted.  Remember, the purpose of the statement of undisputed facts is solely to establish the facts, reserve legal argument for the analysis portion of your memorandum.

Bad Example

“On January 4, 2013, Peter filed notice of his claim with the Department of Transportation satisfying the notice requirements of the Governmental Immunity Act. (Exhibit A, Peter’s Deposition at 5)”

Good Example

“On January 4, 2013, Peter filed notice of his claim with the Department of Transportation. (Exhibit A, Peter’s Deposition at 5)”

Ideally, the statement of undisputed facts will be completely void of statements that invite dispute based on imbedded legal conclusions.  This is difficult.  Even the above “good example” could invite legal objection if there is an argument concerning what constitutes filing or notice.

Better Example

“On January 4, 2013, Peter mailed Exhibit B (attached hereto) to the Department of Transportation via the United States Postal Service (Exhibit A, Peter’s Deposition at 5) (Exhibit C, United States Postal Service Receipt)”

“The Department of Transportation received Exhibit B on January 7, 2013. (Exhibit D, Delivery Confirmation).” 

Tip Two: Only One Fact Per Numbered Paragraph

Utah R. Civ. P. 7(c) states: “Each fact shall be separately stated and numbered . . . .”  Obey this rule to the greatest extent possible.  Placing multiple facts in a single numbered paragraph invites dispute regarding facts that may not be disputed otherwise.

Bad Example

“1. On March 21, 2013, Daniel invited Peter to have dinner and watch a movie at his home in Park City on March 30, 2013. (Peter’s Deposition at 8)”

This “bad example” mixes too many facts into a single sentence.  If opposing counsel disputes a single portion of the statement, they will likely dispute the entire statement.

Good Example

“1. Daniel owns a home in Park City. (Exhibit A, Daniel’s Deposition at 1)”

“2. Daniel does not live in any other home. (Exhibit A, Daniel’s Deposition at 1)”

“3. On March 21, 2013, Daniel called Peter. (Exhibit B, Peter’s Deposition at 3)”

“4. Daniel invited Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition at 3)”

“5. Peter received Daniel’s invitation during the March 21, 2013, telephone conversation. (Exhibit B, Peter’s Deposition at 3)”

“6. Daniel told Peter that the event would be on March 30, 2013. (Exhibit B, Peter’s Deposition at 3)”

By separating each fact into a separately numbered paragraph, the movant forces opposing counsel to clearly indicate which fact they dispute, if any.

It is nearly impossible to separate each individual fact into a separate statement.  This “good example” might be a little extreme.  You should anticipate which facts might be in dispute, and craft your statements based on your understanding of the opposing party’s case.

Tip Three: Exclude Immaterial Facts, But Be Cautious

Disputes concerning immaterial facts do not preclude summary judgment.  Accordingly, it is not necessary to include them in your statement of undisputed facts.  It is wise, however, to provide facts sufficient to give the judge a complete understanding of the case, even if it includes some immaterial information.

Bad Example

“1. On March, 21, 2013, Daniel called Peter. (Exhibit B, Peter’s Deposition at 3)”

“2. Daniel invited Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition at 3)”

“3. Peter received Daniel’s invitation during the march 21, 2013, telephone conversation. (Exhibit B, Peter’s Deposition at 3)”

Notice that this “bad example” is drawn directly for tip two’s “good example.”  By separating each fact into a separately numbered paragraph, it became easier to identify immaterial facts.  Here, facts one and three are most likely immaterial.  They also do not add any background information that could be helpful to the judge.

Good Example

“1. Daniel invited Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition at 3)”

Tip Four: Cite to Admissible Evidence

Utah R. Civ. P. 7(c) states: “Each fact shall be . . . supported by citation to relevant materials, such as affidavits or discovery material.”  Utah R. Civ. P. 56(e) further requires:

[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

In other words, you must cite to relevant admissible evidence.  That includes building a foundation for any submitted documents via affidavit.  Don’t just attach a copy of a contract.  Attach an affidavit laying the foundation for admissibility of the contract, and attach the contract to the affidavit.  Don’t rely on hearsay statements in your client’s deposition or affidavit, go to the source.

Tip Five: Quote the Material Provisions of Any Documents Referred To

Attorneys often refer to contracts or other documents in their statement of undisputed facts, but do not state the material provisions of that document.  Some attorneys have told me that they choose not to quote the relevant provisions of the contract because the contract speaks for itself.

While the contract is the best evidence of what the contract states, failing to include its material terms in the statement of undisputed facts provides the judge with an incomplete picture of the case and forces the judge to sort through the contract to determine the relevant provisions.

The material terms of the contract are material facts, and they are most often undisputed.  Providing direct quotations of these terms in the statement of undisputed facts helps the court gain a full understanding of the case and directs the judge to the provisions in the contract you deem most important.

You should not quickly summaries the terms of the contract, because opposing counsel will likely object based on the best evidence rule.  Instead, directly quote the contract’s material provisions.

Bad Example

“1. Daniel promised to pay Peter one million dollars for one million pounds of flour. (Exhibit A, Contract at 1).

Good Example

“1. Peter and Daniel signed a contract dated March 18, 2012. (Exhibit A, Contract at 1)”

“2. The contract designates Peter as “Seller” (Exhibit A, Contract at 1)”

“3. The contract designates Daniel as “Buyer” (Exhibit A, Contract at 1)”

“4. The contract states: “Buyer will pay Seller one million dollars for one million pounds of flour.” (Exhibit A, Contract at 1)”

There are times that summarizing the terms of the contract will be sufficient.  You should anticipate opposing counsel’s arguments.  If interpretation of a contract is an issue in the case, it is better to quote directly from the contract itself, otherwise summaries will invite objection.

I hope you find these five tips help you write better statements of undisputed facts.

Utah Court of Appeals Cases, February 28, 2013

February 28, 2013

Utah Court of Appeals Cases

State v. Lievanos, 2013 UT App 49, No. 20110432 CA (February 28, 2013)

Affirming Judge Royal Hansen’s, Third District, Salt Lake City Department, denial of Defendant’s Motion to Exclude two days of expert DNA analysis testimony.

Background:

During investigation of a crime, police found DNA evidence and asked the Utah State Crime Lab to analyze it.  The analyst produced a report on August 3, 2009.  A few days later the produced a second report with some corrections.  Before trial, new recommendations for how statistical chances of DNA matches should be calculated were issued by the Scientific Working Group on DNA Analysis Methods.  The prosecutor called the analyst to ask if the new guidelines would affect the report.  The analyst ran the new numbers and determined that there would be a change and sent the new numbers to the prosecutor in an email.  A new report was not issued.

The analyst provided two days of testimony at trial, including cross examination on the analyst’s reporting methods.  At the close of her testimony, Defendant moved to exclude her testimony under Rule 702.  The trial court denied the motion stating: “[The analyst] appears to be qualified and satisfies the requirements of Rule 702.”  The trial court further stated: “the Defense has every right to raise questions regarding the adequacy of that report,” and ruled that its credibility was an issue for the jury.  Defendant appeals.

Judge Orme,

Trial courts . . . have only a “preliminary . . . obligation to determine whether the proposed expert testimony satisfies a ‘threshold showing’ of reliability.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 33, 269 P.3d 980. This court has adopted the definition of “threshold showing” found in the advisory committee note to rule 702 of the Utah Rules of Evidence, i.e., “‘a basic foundational showing of reliability.’” Id. (quoting Utah R. Evid. 702 advisory committee note) (emphasis in original). Meeting this threshold is only the “beginning of a reliability determination,” however, . . . once the trial court has determined expert testimony meets this initial showing of reliability, “[i]t is up to the trier of fact to determine the ultimate reliability of the evidence.” Id. (emphasis in original).

At ¶ 12.

While her testimony may have raised some questions of ultimate reliability, as noted by the trial court, it was not unreasonable for the trial court to find that the analyst’s testimony demonstrated enough reliability to meet the “basic foundational showing” required by Gunn Hill Dairy. See id. It was therefore also entirely appropriate, and not an abandonment of its gatekeeping function, for the trial court to leave the ultimate question of credibility regarding the analyst’s testimony to the jury.

At ¶ 15.

First National Bank of Layton v. Palmer, 2013 UT App. 50, No. 20110338-CA (February 28, 2013).

Reversing Judge Lyle Anderson’s, Utah Seventh District Court, Monticello Department, decision granting of First National’s Motion for Partial Summary Judgment and Denying Palmer’s.

Background:

Ray Palmer and First National Bank of Layton dispute the priority of their competing lien interests in a parcel of commercial real estate.  At all times both parties knew both parties had an interest in the property secured by a trust deed.  Originally, First National was in first priority position, but because they reconveyed the trust deed for insurance purposes, it was moved to second priority position.  Relying on an incorrect title report showing First National’s trust deed as the only outstanding lien on the property, even though Palmer’s trust deed was properly recorded and they had actual knowledge of it, First National did not take any action to subrogate Palmer’s first priority position.

Upon default, Palmer initiated foreclosure proceedings.  First National filed this suit seeking equitable reinstatement and/or “subrogation” of its trust deed back into first priority position.  The trial court granted First National’s request on a motion for summary judgment.  Palmer appeals.

Judge Orme,

First National Presents two theories for why the trial court should be upheld (1) equitable subrogation, and (2) Equitable Reinstatement.

Equitable Subrogation

[There are] two forms of equitable subrogation: legal subrogation and conventional subrogation. See Martin v. Hickenlooper, 59 P.2d 1139, 1141 (Utah 1936). Legal subrogation “arises ‘where the person who pays the debt of another stands in the situation of a surety or is compelled to pay to protect his own right or property.’” Id. (quoting Bingham v. Walker Bros., Bankers, 283 P. 1055, 1063 (Utah 1929)). This form of subrogation is commonplace in insurance litigation, where an insurer will step into the shoes of its insured to bring an action against a tortfeasor. See, e.g., State Farm Mut. Auto. Ins. Co. v. Northwestern Nat’l Ins. Co., 912 P.2d 983, 985 (Utah 1996) (“Utah law clearly recognizes an insurer’s right to bring a subrogation action on behalf of its insured against a tortfeasor.”). Legal subrogation is not applicable here because First National is not a surety and has not stepped into the shoes of another party. First National was not compelled to pay to protect its rights, and there are not, in fact, any shoes, other than its own, for First National to step into.

Conventional subrogation is also not an appropriate mechanism for placing First National’s trust deed back into first priority position. Conventional subrogation “occurs where the one who is under no obligation to make . . . payment, and who has no right or interest to protect, pays the debt of another under an agreement, express or implied, that he will be subrogated to [the] rights of the original creditor.” Bingham, 283 P. at 1063. First National did not advance any money to pay off the original trust deed with the understanding or agreement that its new trust deed would be subrogated to first priority position. Instead, First National merely released its trust deed and subsequently recorded a new trust deed reflecting a different loan amount. No money changed hands and none of the already existing liens were paid off. By definition, First National’s trust deed cannot move to first priority position on a theory of conventional subrogation because the money secured by the second trust deed was not used to pay off the released and reconveyed first trust deed. Because First National is not aiming to stand in the shoes of another and did not pay off a prior lien with the expectation of subrogating to the prior lien’s priority position, we conclude that First National’s trust deed is incapable of being elevated to first priority position through the doctrine of equitable subrogation.

At ¶¶ 10-11

Equitable Reinstatement

[W]hen a mortgage is released by accident, mistake, or in ignorance of intervening lien rights, a court can equitably reinstate that mortgage to its original priority position.

At ¶ 12.

Equitable reinstatement will be denied, however, if the party seeking reinstatement was negligent in failing to discover the lien that elevated to senior position.

At ¶ 12.

Given its possession of documents stating that a “second trust deed [was to be] held by the seller,” we conclude that First National was at the very least on inquiry notice of Palmer’s trust deed and was, consequently, negligent in failing to inquire about the potential existence of Palmer’s outstanding lien after the title report did not disclose it.

At ¶ 13.

In determining whether a party is on inquiry notice, we first perform “a subjective inquiry to determine what actual knowledge” the subsequent party in interest had. See Pioneer Builders Co. v. KDA Corp., 2012 UT 74, ¶ 26, 292 P.3d 672. We then “conduct an objective inquiry to determine whether those facts would lead a reasonable person to inquire further.” Id.

At ¶ 13.

Under more typical circumstances, a lender’s sole reliance on a title report might not be considered negligent. . . . But when a title report following so soon on the heels of the original transaction does not list a trust deed the lender would expect to see, the lender cannot simply turn a blind eye to what it knows, has reason to know, or has a duty to inquire about further.

At ¶ 15.

Migliaccio v. Labor Commission, 2013 UT App 51, No. 20110690-CA (February 28, 2013)

Original Proceeding

Judge Davis,

Tommy Migliaccio seeks judicial review of the Utah Labor Commission’s decision to deny his request for workers’ compensation benefits for a cervical-spine injury that he asserts was caused or aggravated by an industrial accident that occurred in September 2006.  The Court does not disturb the Commission’s decision.

Migliaccio argues that the Utah Labor Commission erred in convening a medical panel to evaluate his disability claim because the issue of medical causation was not dispute.  Further, Migliaccio argues that the medical panel’s decision was not supported by substantial evidence.

[T]he Utah Administrative Code requires an ALJ to utilize a medical panel “where one or more significant medical issues may be involved” and notes that such a circumstance “[g]enerally [involves] . . . conflicting medical reports.” See Utah Admin. Code R602‐2‐2.A.

At ¶ 3.

“[a]lthough [rule] 602-2-2[.A] provides specific instances in which a claim must be referred to a medical panel, the statute does not preclude claims from being referred to medical panels for other medical questions.” We agree.

At ¶ 4 (quoting the trial court).

The Court reviews the record and finds that medical causation was in dispute, and that there were significant questions regarding the severity of Migliaccio’s injury.  The Court also finds that there was substantial evidence supporting the panel’s decision that Migliaccio’s injury was not caused by a work accident.

State v. Smith, 2013 UT App 52, No. 20110319-CA (February 28, 2013)

Reversing Defendant’s Guilty Plea.  Judge Michael Westfall, Fifth District, Cedar City Department

Background:

Smith was charged with possession of a controlled substance in a drug-free zone.  He reached a pleas agreement with the State and appeared at the time scheduled for his preliminary hearing.  When Smith appeared at that hearing, counsel and the court immediately proceeded with the business of discussing his guilty plea. The district court never asked Smith whether he was willing to waive his right to a preliminary hearing, and Smith’s written plea statement did not refer to this right.  Smith pled guilty without having had a preliminary hearing or waiving his right to one.

Smith argues that the trial court lacked jurisdiction to accept his guilty plea because he had not waived his right to a preliminary hearing and was not bound over.

Judge Davis,

[A] failure to bind over a defendant following either a preliminary hearing or the waiver of the right to a preliminary hearing is a jurisdictional defect that renders his guilty plea void.

At ¶ 7.

[W]hile the district court may have original jurisdiction over criminal cases, there are procedural limits on its ability to exercise that jurisdiction. Specifically, in criminal cases in which a defendant is entitled to a preliminary hearing, “the district court does not acquire jurisdiction until after a bindover order issues and the information and all other records are transferred to the district court.” State v. Humphrey, 823 P.2d 464, 465 n.2 (Utah 1991).

At ¶ 9.

While we agree that constitutional and other defects in the preliminary hearing or waiver thereof are nonjurisdictional, . . . the complete lack of a bindover order in this case—based on either a determination of probable cause following a preliminary hearing or a determination that the defendant waived the right to a preliminary hearing,. . . deprived the district court of jurisdiction to entertain Smith’s guilty plea.

At ¶ 10.

McQueen v. Jordan Pines Townhomes, 2013 UT App 53, No. 20110312-CA (February 28, 2013)

Affirming Judge Joseph Fratto’s, Third District, decision plaintiff’s Motion for Partial Summary Judgment, but denying Plaintiff’s request for attorney fees.

Background:

McQueen, an owner of a townhome at Jordan Pines Townhomes, signed a declaration obligating him to pay the home association’s assessments.  If the required assessments were not paid, the condominium declaration provided for the creation of a lien that may be enforced through foreclosure or sale in accordance with the law of “deeds of trust or mortgages or in any other manner permitted by law.”

McQueen rented the townhome to tenants and soon was in arrears on the association assessments.  Jordan Pines Townhomes’ attorney initiated the non-judicial foreclosure process.  The home was sold to Exchange Properties, Inc. (“Exchange”), and McQueen’s tenants were evicted.  McQueen sued to quiet title alleging that the non-judicial foreclosure procedure was ineffective and void because the attorney was not appointed as a trustee.

McQueen regained possession of the property only after bringing an unlawful detainer action against Exchange.  McQueen then amended his complaint in the current action alleging Exchange had committed waste and requesting attorney fees.  After a bench trial on the remaining issues, the district court denied McQueen’s request for attorney fees.

Judge Christiansen,

The Condominium Ownership Act requires that nonjudicial assessment lien foreclosures and sales be carried out pursuant to the requirements set forth in the Trust Deed Act. The Trust Deed Act, in addition to other procedural requirements like proper notice, requires the creation of a trust relationship and the appointment of a qualified trustee.6 The extent to which these requirements apply to the Condominium Ownership Act is the subject of the Association’s appeal.

At ¶ 11.

Our analysis of the plain language of the Condominium Ownership Act and Trust Deed Act leads us to conclude that more than just the Trust Deed Act provisions relating to timing and notice, as argued by the Association, should apply to a nonjudicial foreclosure of an assessment lien. In construing the two statutes together, we determine that the Condominium Ownership Act forms a foundational base for the foreclosure of an assessment lien on a condominium unit, which base is supplemented by the Trust Deed Act. In other words, just because elements of the Trust Deed Act are incorporated by reference in the Condominium Ownership Act does not mean that the two statutes conflict. As a result, themanager or management committee that pursues foreclosure without involving the court must appoint a qualified trustee to conduct the sale or foreclosure of a condominium owner’s interest in the unit. This interpretation harmonizes the Condominium Ownership Act with the Trust Deed Act and avoids the conflicts envisioned by the Association.

At ¶ 17.

the plain language of subsection 57‐8‐20(4)(b) does not extend the power of sale to the Association’s attorney without appointment as a qualified trustee.

At ¶ 20.

The Court also determines that McQueen was not entitled to attorney fees because his claim did not arise under a contract, the condominium declaration, under another applicable statute, or as consequential damages.

none of the five counts listed in McQueen’s second amended complaint expressly or substantively alleged a breach of the condominium declaration.

At ¶ 24.

Recovery of attorney fees as consequential damages generally applies in just two situations. The first is when the litigation is based on an insurance contract. See Pugh v. North Am. Warranty Servs., Inc., 2000 UT App 121, ¶ 14, 1 P.3d 570 (“Our courts have carved out a narrow exception to [the] rule [requiring statutory or contractual authorization for attorney fees] in the insurance context.”). This case is clearly not based on an insurance contract. Second, “[a] well-established exception to this general rule allows recovery of attorney fees as consequential damages, but only in the limited situation where the defendant’s breach of contract foreseeably caused the plaintiff to incur attorney fees through litigation with a third party.” Collier, 827 P.2d at 984; see also Lewiston State Bank v. Greenline Equip., LLC, 2006 UT App 446, ¶ 22, 147 P.3d 951. This exception refers to the third-party tort rule and does not apply in this case.

At ¶ 26.

Judge Voros (Concurring),

Judge Voros concurs in the result, but argues that the home owners’ associate can not nonjudicially foreclose on the property without the actual transfer of a trust deed.  Here, the home owners’ associate was seeking to foreclose based merely on a lien.

State v. Garcia, 2013 UT App 54, No. 20120147-CA (February 28, 2013)

Affirming Judge Vernice Trease, Third District, Salt Lake Department

Per Curiam,

Defendant challenges the sufficiency of evidence supporting her conviction for distribution of a controlled substance.  The Court reviews the evidence and affirms.

In re A.A.J., 2013 UT App 55, No. 20121090-CA (February 28, 2013)

Affirming Judge Fredric Oddone, Third District, Salt Lake Department

Per Curiam,

Mother asserts that there was insufficient evidence that she was an unfit or incompetent parent, and that the juvenile court erred by declining to offer her further reunification services.

We “review the juvenile court’s factual findings based upon the clearly erroneous standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence. See id. Furthermore, we give the juvenile court a “‘wide latitude of discretion as to the judgments arrived at’ based upon not only the court’s opportunity to judge credibility firsthand, but also based on the juvenile court judges’ ‘special training, experience and interest in this field.’” Id. Finally, “[w]hen a foundation for the court’s decision exists in the evidence, an appellate court may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12.

At ¶ 2.

The Court reviews the evidence and affirms

In re B.H.-J. and B.H., 2013 UT App 56, No. 20120940-CA (February 28, 2013)

Affirming Judge Thomas Higbee, Fifth District, Beaver Department

Per Curiam,

Father challenges the sufficiency of evidence to support the court’s findings that he abandoned his children, neglected the children and is an unfit parent.  The Court reviews the evidence and affirms.