October 10, 2013 Utah Court of Appeals Case Summaries

In re H.S., 2013 UT App 239, No. 20120891-CA (October 10, 2013)

ISSUE: Effect of Mediation Settlement

Judge Christiansen,

A.S. (Mother) appeals from the juvenile court’s permanency order granting custody of H.S. (Child) to D.K.W. (Father). Mother argues that the court erred in interpreting and applying the permanency statute. See Utah Code Ann. § 78A-6-314(1)(a), (2)(a) (LexisNexis 2012). Mother also appeals the juvenile court’s denial of what Mother characterizes as her “custody motion,” arguing that the court violated her due process rights. We determine that the issues Mother raises on appeal are mooted by the parties’ stipulation. Accordingly, we dismiss Mother’s appeal.

At ¶ 1.

The Court outlines the facts, finds that Mother entered into a settlement agreement after filing the instant appeal, and that the settlement agreement moots the appeal.

At ¶¶ 2-13.

Cromwell v. A & S Construction, Inc., 2013 UT App 240, No. 20110385-CA (October 10, 2013)

ISSUES: Negligence, Subcontractor’s Duty to Another Subcontractor, General Contractor’s Duty of Care

Judge Christiansen,

Plaintiff Michael Cromwell challenges the district court’s grant of summary judgment to defendant Guns and Hoses, Inc. (Guns & Hoses) on Cromwell’s negligence claim. We affirm.

At ¶ 1.

The Court outlines the undisputed facts. Particularly, (1) Defendant A & S Construction, Inc. (A&S)’s status as general contractor building a home, (2) Defendant Guns & Hoses’ status as a subcontractor hired to install doors at the top of an elevator shaft, (3) Guns & Hoses’ installation of doors, (4) Plaintiff’s fall down the shaft, (5) Cromwell’s allegation that Gunes & Hoses owed a duty to secure the elevator shaft doors and warn of the danger of the elevator shaft,” (6) “Guns & Hoses secured the elevator shaft doors after installing them,” (7) “A&S confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell’s] fall,” (8) “[the homeowners] also confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell’s] fall, and (9) the trial court’s award of summary judgment to Guns & Hoses.

At ¶¶ 2-7

. . . our first inquiry is whether Guns & Hoses owed a duty to Cromwell at the time of his injury.

At ¶ 10.

“The creator of an artificial condition on land may be liable to others . . . for physical harm caused by its dangerous nature.” Id. ¶¶ 8–9 (adopting Restatement (Second) of Torts § 385 (1965)). Where a contractor is engaged to perform work without direct supervision and control by the owner, the contractor is responsible for preventing the risk arising out of the work, and administering and distributing it. See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322. Thus, so long as the work remains in his control, a contractor “is subject to liability ‘as though he were the possessor of the land.’” See Gonzalez v. Russell Sorensen Constr., 2012 UT App 154, ¶ 23, 279 P.3d 422 (quoting Restatement (Second) of Torts § 384 (1965)); see also id. ¶ 30 (concluding that section 384 of the Restatement is an accurate statement of Utah law “governing the liability of general contractors for harm caused to others by conditions at a job site”). Where a general contractor hires a subcontractor to perform a part of the work, the subcontractor is liable in the same manner but “for only such harm as is done by the particular work entrusted to him.” See Restatement (Second) of Torts § 384 cmt. d (1965).

At ¶ 11.

Thus, a general contractor bears the risk of harm caused to others, including employees of a subcontractor, by the dangerous character of the structure being built while the work remains in the general contractor’s charge. See Gonzalez, 2012 UT App 154, ¶¶ 21, 30 (concluding that a subcontractor’s employee had pleaded sufficient facts supporting a direct negligence claim against the general contractor under section 384 of the Restatement to preclude summary judgment). While no Utah case specifically addresses a subcontractor’s duties to the employees of another subcontractor, we conclude that under Thompson v. Jess and section 384 of the Restatement, a subcontractor owes the same duty to employees of another subcontractor as it owes to any other person. See Thompson, 1999 UT 22, ¶ 13; Restatement (Second) of Torts § 384 & cmt. d; cf. Tallman, 1999 UT 55, ¶ 30 (holding that a subcontractor may have a duty under section 385 of the Restatement to employees of a general contractor). . . .

At ¶ 12.

However, a subcontractor’s liability to employees of another subcontractor is limited to “only such harm as is done by the particular work entrusted to him.” See Restatement (Second) of Torts § 384 cmt. d; accord Gonzales, 2012 UT App 154, ¶ 26 (“[S]ection 384 of the Restatement (Second) of Torts correctly states Utah law.”).

At ¶ 13.

The Court outlines the facts and holding in Weiser v. Bethlehem Steel Corp., 508 A.2d 1241 (Pa. Super. Ct. 1986), and finds it persuasive.

At ¶¶ 13-14.

Guns & Hoses contracted to perform door framing and installation of doors throughout the home, including the installation of doors at the access to the elevator shaft. Guns & Hoses therefore had a duty to exercise reasonable care to protect other workers from dangerous conditions in the work that Guns & Hoses had contracted to perform—installation of doors. Cf. id. at 1245. Thus, Guns & Hoses would be liable for injuries caused by deficient installation or other flaws in its own work that rendered that work dangerous to others. However, Guns & Hoses did not create the dangerous condition of the empty elevator shaft, nor did it exercise any control over the condition of the shaft. Cromwell concedes in his complaint that A&S “was solely responsible for maintaining an open empty elevator shaft behind a hinged bedroom door.” A&S controlled all work in and around the elevator shaft both before and after Guns & Hoses completed its work and turned it over to A&S. A&S directed Guns & Hoses to install the doors at the access to the empty elevator shaft. While Guns & Hoses had a duty to exercise reasonable care in installing the doors, that duty did not extend to ensuring the safety of other workers around the dangerous condition created by A&S.

At ¶ 15.

“Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.” Stuckman ex rel. Nelson v. Salt Lake City, 919 P.2d 568, 573 (Utah 1996) (citation and internal quotation marks omitted).

At ¶ 16.

We do not reach the question of whether Guns & Hoses owed a duty on this basis because Cromwell has not properly presented the issue to this court. . . . [and] Because Cromwell failed to preserve this issue before the district court . . . .

At ¶ 17.

[T]he disputed facts identified by Cromwell relate only to whether Guns & Hoses breached any duty it owed to him. Because Cromwell has not demonstrated that Guns & Hoses owed a duty to protect him from the injuries he sustained in the fall, any disputed facts relating to whether Cromwell breached a duty are not material.

At ¶ 19.

Guns & Hoses’ duty to exercise reasonable care in hanging doors at the access to an empty elevator shaft did not extend to securing that shaft to prevent harm to other workers on the site. Cromwell has not demonstrated that Guns & Hoses owed to him any other duty that would support his claim of negligence. The district court’s grant of summary judgment was therefore correct, and any error in the district court’s consideration of the facts was harmless.

At ¶ 21.

Card v. Card, 2013 UT App 241, No. 20120837-CA (October 10, 2013)

ISSUES: Consideration of “Supplemental Memorandum”; Identifying issues on appeal, amended notices of appeal

Per Curaim,

The sole issue raised in Card’s brief that relates to the order denying the motion to vacate is his claim that the trial court abused its discretion in striking his supplemental memorandum. The trial court noted that it struck the memorandum because it did not comply with rule 7(c)(1) of the Utah Rules of Civil Procedure. Card does not address the court’s reason for striking the memorandum and, as a result, has not demonstrated that the trial court erred.

At ¶ 4.

The rest of the issues raised in Card’s brief challenge the August 29 order dismissing the complaint. However, issues regarding the dismissal order are beyond the scope of this appeal, and this court lacks jurisdiction to consider them. An appeal may be taken from final judgments or orders “by filing a notice of appeal with the clerk of the trial court within the time allowed by rule 4.” Utah R. App. P. 3(a). The notice of appeal “shall designate the judgment or order, or part thereof,” from which the appeal is taken. Id. R. 3(d). “This requirement is jurisdictional because the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case.” In re B.B., 2002 UT App 82, ¶ 9, 45 P.3d 527. In this case, the notice of appeal identified the order denying Card’s motion to vacate the dismissal as the subject of the appeal.

At ¶ 5.

Furthermore, the amended notice of appeal filed on October 18, 2012, had no effect. In that notice, Card “amended” his initial notice of appeal to change the order appealed to the August 29 order and to change the scope of the appeal to “the entire judgment.” However, because the final order dismissing the complaint and the final order denying rule 60(b) relief are separate, final, and appealable orders, the orders require separate notices of appeal. The purported amendment to the notice of appeal from one order therefore was insufficient to independently invoke jurisdiction to appeal from a separate final order. In addition, even if the October amended notice were treated as a new notice, the appeal from the August 29 order would be untimely, and thus would not confer jurisdiction.

At ¶ 7.

State v. Youngblood, 2013 UT App 242, No. 20120440-CA (October 10, 2013)

ISSUES: Consecutive Sentences

Per Curiam,

Christopher Robert Youngblood appeals the sentence on his convictions of two counts of automobile homicide, a third degree felony. . . .

At ¶ 1.

“In determining whether state offenses are to run concurrently or consecutively, the court shall consider the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant.” Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). “The sentencing decision of a trial court is reviewed for abuse of discretion.” State State v. Youngblood v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. A court abuses its discretion in sentencing “when it fails to consider all legally relevant factors or if the sentence imposed is clearly excessive.” See id. ¶ 28 (citations and internal quotation marks omitted). On appeal, a defendant has the burden to show that the trial court did not properly consider all of the factors in section 76-3-401(2). See id. Alternatively, a defendant may demonstrate an abuse of discretion on appeal if he or she can show “that no reasonable [person] would take the view adopted by the trial court.” Id. (alternation in original) (citation and internal quotation marks omitted).

At ¶ 2.

Youngblood has not demonstrated that the district court failed to consider all legally relevant factors. . . .

. . . Accordingly, Youngblood has not demonstrated that the district court abused its discretion in imposing a legal sentence of two consecutive terms of five years to life. Neither has Youngblood demonstrated that the district court imposed a sentence that was so inherently unfair or excessive under the circumstances of this case that no reasonable person would take the view adopted by the district court.

At ¶¶ 3-4.

State v. Gibson, 2013 UT App 243, No. 20120129-CA (October 10, 2013)

ISSUES: Sufficiency of the Evidence, Credibility of Witness Testimony

Judge Bench,

Jeremy Andrew Gibson appeals from his convictions for one count of theft by deception and one count of theft by receiving stolen property, both third degree felonies. . . .

At ¶ 1.

The Court summarizes the standard for determining whether the evidence is sufficient to support a conviction.

At ¶ 2.

This is ample evidence from which the jury could reasonably have found that Gibson pawned Victim’s wedding ring, and it is therefore adequate to defeat Gibson’s sufficiency of the evidence argument. . . . Nevertheless, Gibson argues that the case should not have been submitted to the jury due to insufficient physical evidence and unreliable witness testimony. We disagree.

At ¶ 4.

As to the physical evidence, Gibson argues that the pawn ticket contained only a generic description of the pawned items and that the State’s photographs of Victim’s wedding ring were too grainy and unfocused to allow for a positive identification. Gibson argues that, in light of these deficiencies in the physical evidence, the State failed to prove that the ring presented by the State at trial “was actually the ring that belonged to [Victim] or the ring Gibson pawned in August, 2009.” However, both Victim and her exhusband testified that the ring recovered from Big Dog Pawn and presented at trial was Victim’s wedding ring. The photographic evidence was not inconsistent with this testimony, and we agree with the State that the evidentiary value of the pawn ticket was not to establish that the ring belonged to Victim but rather to establish that it was Gibson who had pawned the ring. For these reasons, we reject Gibson’s argument that there was insufficient physical evidence to support his convictions.

At ¶ 5.

Gibson also argues that Victim’s testimony should be disregarded as inherently improbable. See generally State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288 (“Though the court must ordinarily accept the jury’s determination of witness credibility, when the witness’s testimony is inherently improbable, the court may choose to disregard it.”). Specifically, Gibson argues that despite Victim’s identification of the recovered ring as her wedding ring, her description of her wedding ring as “gold, [with] a center diamond, a round diamond with three diamonds on either side” was too generic to positively identify the recovered ring as her own. Gibson also argues that Victim’s testimony about dates was inconsistent because she initially testified that she still possessed the ring in December 2009 and could ultimately only identify a six-month span from June to December 2009 during which the ring had gone missing. These alleged deficiencies in Victim’s testimony notwithstanding, we cannot say that Victim’s ultimate identification of the recovered ring as her missing wedding ring was either “physically impossible” or “apparently false,” and we must therefore “accept the jury’s determination of [Victim’s] credibility.” See id.

At ¶ 6.

Taken as a whole, the State’s evidence in this case was not so “inconclusive or inherently improbable . . . that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime[s] for which he or she was convicted.” . . .

At ¶ 7.

Burningham v. Westgate Resorts, 2013 UT App 244, No. 20120469-CA (October 10, 2013)

ISSUES: Integrated Agreements, Parol Evidence, Mutual Mistake, Scrivener’s Error, Meeting of the Minds

Judge Bench,

Westgate Resorts, Ltd. (Westgate) appeals from the district court’s entry of summary judgment in favor of Jeff Burningham in Burningham’s action for the return of $89,900 that he had paid to Westgate as a deposit on the purchase of a condominium unit. We affirm.

At ¶ 1.

The Court outlines the background of this case, specifically the terms of the REPC entered between Plaintiff and Defendant, a dispute regarding the return of the deposit when Plaintiff sought to back out of the purchase, a second agreement which purported to be the entire agreement, and Plaintiff’s decision to opt out of performance and demand return of his deposit under the second agreement. 

At ¶¶ 2-9.

Westgate argues that the district court erred in granting summary judgment to Burningham because there were material fact questions as to the parties’ intent on the refundability of the $89,900. Specifically, Westgate argues that evidence of mutual mistake, scrivener’s error, and the lack of a meeting of the minds each raise a material fact question on the parties’ intent so as to preclude summary judgment. . . . .

At ¶ 10.

The district court concluded that, pursuant to paragraph 38.1 of the Agreement, Burningham timely terminated the Agreement and was entitled to a refund of his $89,900 deposit as a matter of law. Notwithstanding the language of paragraph 38.1, Westgate argues that extrinsic evidence—primarily the declaration of its sales agent—creates material questions of fact on its arguments of mutual mistake, scrivener’s error, and the parties’ failure to reach a “meeting of the minds.” We address each of these arguments in turn.

At ¶ 11.

Mutual Mistake

. . . A mutual mistake of fact can provide the basis for equitable rescission or reformation of a contract even when the contract appears on its face to be a “complete and binding integrated agreement.” West One Trust Co. v. Morrison, 861 P.2d 1058, 1061 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). “A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain.” The Cantamar, LLC v. Champagne, 2006 UT App 321, ¶ 38, 142 P.3d 140 (citation and internal quotation marks omitted). Westgate argues that its sales agent’s declaration, viewed in light of the parties’ course of conduct leading up to the Agreement, raises a fact question as to whether the inclusion of paragraph 38.1’s refund language in the Agreement was a mutual mistake.

At ¶ 12.

What the sales agent’s declaration does not do is provide evidence of Burningham’s intent, as opposed to Westgate’s understanding of that intent. The declaration does not provide the substance of any of the sales agent’s “discussions and interactions” with Burningham that would provide evidence of Burningham’s intent. Instead, the declaration relies on Burningham’s silence, stating that “[a]t no time did Burningham indicate . . . that he intended the [$89,900] to be a refundable deposit under the [Agreement] or that he interpreted it to be the ‘deposit’ referenced in Paragraph 38.1 of the [Agreement].”

At ¶ 14.

We agree with the district court that the sales agent’s declaration “does not show that Mr. Burningham was also mistaken on [the deposit] issue.” The declaration provides evidence only of unilateral mistake by Westgate, not the mutual mistake required to establish grounds for equitable rescission of the Agreement. We therefore conclude that the declaration did not raise a material question of fact on mutual mistake so as to preclude summary judgment.

At ¶ 15.

Westgate also argues that it was clearly entitled to retain the $89,900 under the REPC and that it would therefore “def[y] all logic and common sense” to make the money refundable under the terms of the Agreement. To the extent that this argument even bears on the question of mutual mistake, we observe that the proper disposition of the $89,900 under the REPC was disputed at the time the parties entered into the Agreement. By entering into the Agreement, Westgate obtained the release of Burningham’s fraud and related claims—which, if successful, would likely have entitled Burningham to an award of attorney fees in addition to the $89,900. Further, the Agreement did not only address the $89,900 but also provided another opportunity for Westgate to sell the condominium unit, which had lost substantial value over the course of the parties’ dealings. It may well have been in Westgate’s business interest to risk losing the deposit in order to divest itself of the devalued condominium unit for the price stated in the Agreement. Under these circumstances, we see nothing in the course of the parties’ conduct to support Westgate’s argument that both Westgate and Burningham were mistaken as to the Agreement’s refund language.

At ¶ 16.

Scrivener’s Error

Next, Westgate argues that there is a material issue of fact as to whether the Agreement contains a scrivener’s error. The alleged scrivener’s error is contained in the refund language of paragraph 38.1 of the Agreement, which states, “If Buyer timely terminates this Agreement under this Section 39.1, the deposit(s) paid shall be returned to Buyer . . . .” (Emphasis added.) Westgate argues that the district court erred when it failed to consider extrinsic evidence regarding the effect of the alleged scrivener’s error.

At ¶ 17.

We see no error by the district court because Westgate failed to present any extrinsic evidence that the reference to “this Section 39.1” was intended to refer to any section or paragraph other than the existing paragraph 38.1 of the Agreement. For example, Westgate presented no testimony from the sales agent or anyone else that the Agreement was actually intended to refer to another section. . . .

At ¶ 18.

Under these circumstances, we see no material issue of fact on whether paragraph 38.1’s reference to “this Section 39.1” was a scrivener’s error. Accordingly, the district court did not err in characterizing the reference as an “obvious typographical error” that did not preclude summary judgment.

At ¶ 19.

Meeting of the Minds

Westgate’s final argument is that there is a disputed issue of material fact as to whether the parties reached a “meeting of the minds” on the meaning of “deposit(s) paid” as that term is used in paragraph 38.1 of the Agreement. Under paragraph 38.1, deposits paid were to be refunded to Burningham upon his timely termination of the Agreement. However, Westgate argues that the parties had very different intentions as to whether the $89,900 constituted a refundable deposit “paid” under the Agreement—as opposed to money “already deposited” under the REPC—and, thus, that there was never a meeting of the minds on this issue.

At ¶ 20.

Westgate correctly identifies a “meeting of the minds” as a necessary element of contract formation. See, e.g., Terry v. Bacon, 2011 UT App 432 , ¶ 21, 269 P.3d 188 (“Under general contract law, it is fundamental that there be a meeting of the minds as to all essential features of a contract.”). “[T]his meeting of the minds must be spelled out, either expressly or implicitly, with sufficient detail to be enforced.” Republic Grp., Inc. v. Won-Door Corp., 883 P.2d 285, 294 (Utah Ct. App. 1994). Here, the terms of the parties’ agreement are contained in a written contract, the Agreement, and we look to that document to evaluate whether the parties reached the required meeting of the minds on the deposit issue. . . .

At ¶ 21.

The Agreement clearly states that the purchase price for the condominium unit was $462,500, and it identifies only one deposit—the “Initial Deposit” of $89,900. The due date for the deposit is expressed as “Already deposited.” The Agreement then identifies multiple circumstances in which the deposit would be refunded to Burningham, including Burningham’s inability to obtain financing, Westgate’s inability to provide clear title, default by Westgate, unremedied casualty loss to the condominium unit prior to closing, and termination of the Agreement by Burningham under paragraph 38.1. These provisions all use slightly different terminology to describe the deposit refund: “deposit(s) hereunder shall be returned to Buyer,” “a full refund of Buyer’s deposit,” “the return of Buyer’s deposits,” “all deposits shall be returned to the Buyer,” and paragraph 38.1’s “deposit(s) paid shall be returned to Buyer.”

At ¶ 22.

Even on summary judgment, Westgate’s meeting of the minds argument must be evaluated against these provisions of the Agreement. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶¶ 11–14, 307 P.3d 650 (affirming summary judgment because affidavit of party’s intent was insufficient to create fact question in light of unambiguous writings to the contrary). Westgate’s argument, supported by the sales agent’s declaration, is that Westgate always understood the $89,900 to represent a nonrefundable credit against the price of the condominium unit. This understanding is flatly contradicted by the Agreement, which states that $89,900 was a deposit rather than a credit and was refundable in multiple circumstances, including Burningham’s timely termination of the contract pursuant to paragraph 38.1.

At ¶ 23.

. . . Given these principles [that all parties are deemed to have read an understood a contract they sign] and the clear refund language contained in the Agreement, we have no difficulty in concluding that, legally speaking, Westgate and Burningham reached a meeting of the minds on the deposit issue when they both executed the Agreement.

At ¶ 24.

State v. Garrido, 2013 UT App 245, No. 20100789-CA (October 10, 2013)

ISSUES: Sixth Amendment Confrontation Rights, Hearsay, Admissibility of Pretrial Testimony, Unavailability of a Witness, Inquiry into New Defense Counsel, Merger

Judge Orme,

Defendant Gustavo Demetrio Garrido appeals from convictions for one count of assault, a third degree felony, see Utah Code Ann. § 76-5-102 (LexisNexis 2012); five counts of domestic violence in the presence of a child (three third degree felonies and two class B misdemeanors), see id. § 76-5-109.1(2), (3); one count of aggravated burglary, a first degree felony, see id. § 76-6-203; one count of aggravated kidnapping, a first degree felony, see id. § 76-5-302; one count of aggravated assault, a third degree felony, see id. § 76-5-103 (2008); and one count of violating a protective order, a class A misdemeanor, see id. § 76-5-108 (2012). Defendant argues that (1) this court improperly remanded his case back to the trial court to supplement the record, (2) the trial court erred in determining that a witness was unavailable and subsequently violated his Sixth Amendment rights by permitting preliminary testimony to be admitted, (3) the trial court admitted irrelevant and prejudicial hearsay statements, (4) the trial court failed to adequately inquire into Defendant’s request for new counsel, and (5) the trial court improperly instructed the jury by failing to merge some of the offenses. We affirm.

At ¶ 1.

The Court outlines the facts of this case, including Defendant’s violent crimes, victim’s refusal to testify, the trial court’s admission of victim’s preliminary hearing testimony, and a paralegal’s testimony of what victim told the prosecutor into evidence.

At ¶ 2-7.

The Court presents the issues and standards of review.

At ¶¶ 8-12.

The Court summarizes its previous ruling granting the State’s Rule 11 motion to supplement the record and refuses to revisit its determination.

At ¶¶ 13-15.

Sixth Amendment Rights

Prior testimony, such as that offered at a preliminary hearing, is admissible when a witness is found to be unavailable. Utah R. Evid. 804(b)(1). A witness is unavailable when, among other circumstances, the witness “refuses to testify” or “is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the [witness’s] attendance.” Id. R. 804(a). We conclude that Victim was unavailable. Victim persistently refused to testify prior to trial, was resistant to service, and was absent when called. The trial court made a finding that Victim was unavailable and asked that a standin witness come forward to read Victim’s preliminary hearing testimony. Although Victim then suddenly appeared, she did so only to shout from the gallery that she would not be testifying. A bailiff went after her when she then fled the courtroom, but she had already disappeared. The trial court’s statement—“I’m not going to continue with this charade. We’re just going to take her testimony as it’s written.”—appears to be a simple affirmation of its prior, formal ruling of unavailability. But even if it was not, the “clear, uncontroverted” facts support a determination that she was not available to testify. . . .

At ¶ 17,

Defendant argues that even if Victim was unavailable, his Sixth Amendment rights were still violated. “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. But see State v. Timmerman, 2009 UT 58, ¶¶ 13, 16, 218 P.3d 590 (noting that there is no constitutional right to confrontation of witnesses at preliminary hearings). However, when a witness is unavailable, preliminary hearing testimony is admissible in a criminal trial if the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). Defendant argues that he was denied his Sixth Amendment rights because trial counsel did not ask Victim any questions on cross-examination at the preliminary hearing. However, “[i]t is the opportunity to crossexamine that is guaranteed by the state and federal constitutions, not whether that opportunity is exercised.” State v. Nelson, 725 P.2d 1353, 1357 (Utah 1986) (emphasis added). While “[d]efense counsel may have elected to forego cross-examination[,] . . . that does not mean that the opportunity was not available.” Id.

At ¶ 18.

. . . While Defendant has assailed trial counsel’s refusal to cross-examine Victim at the preliminary hearing, we determine that it was a logical and routine choice, made to avoid to avoid the possibility of disturbing favorable testimony. Defendant’s Sixth Amendment rights were not violated when the preliminary hearing testimony was admitted because Defendant was provided the requisite opportunity for cross-examination at that stage of the proceedings. 

At ¶ 20.

Defendant also argues that the preliminary hearing testimony lacks the necessary constitutional protections of the Sixth Amendment because certain evidence was not discovered by trial counsel until after the preliminary hearing. Specifically, trial counsel became aware of Victim’s prior criminal convictions, vindictive statements Victim made about Defendant to the effect that she may have set him up or falsified charges against him, and other credibility and character evidence that trial counsel asserted he would have questioned her on during cross-examination had he known about it. However, even if the evidence discovered after the preliminary hearing means the preliminary hearing testimony was not as complete as it might have been, we conclude that any dereliction on counsel’s part did not prejudice Defendant. Counsel introduced the vindictive statements and attacked Victim’s credibility through another witness at trial, and the jury learned of Victim’s convictions through a stipulation. Although it may have been more convenient for Defendant had trial counsel discovered the evidence sooner, Defendant was not harmed by counsel’s ignorance of this information at the preliminary hearing because the evidence was discovered in time to be used at trial.

At ¶ 22.

Hearsay Statements

The State made a motion at trial to admit the out-of-court statements made by Victim to the prosecutor that were overheard on speakerphone by a paralegal. The trial court admitted the statements over Defendant’s objections under the state-of-mind exception found in rule 803 of the Utah Rules of Evidence. Defendant argues that the admission of these statements violated Defendant’s Sixth Amendment rights to confrontation. “[N]ontestimonial hearsay can be admitted under generally accepted exceptions to the hearsay rule without running afoul of the Sixth Amendment.” Salt Lake City v. Williams, 2005 UT App 493, ¶ 14, 128 P.3d 47. “The focus of the Confrontation Clause is on witnesses who bear testimony against the accused.” Id. ¶ 15. Here, Victim’s statements were not accusatory nor did they amount to bearing witness against Defendant. The statements repeated by the paralegal were simply declarations of Victim’s intention not to testify, with reference to her fear of Defendant as a reason for not doing so.

At ¶ 23.

Defendant argues that limiting instructions are a per se requirement to admitting out-of-court statements regarding the fear a victim has of a defendant. It is true that in homicide cases when a deceased victim’s mental state is not directly at issue, a limiting instruction must be given before statements related to a victim’s state of mind or his or her fear of the defendant can be admitted. State v. Wetzel, 868 P.2d 64, 68–69 (Utah 1993); State v. Auble, 754 P.2d 935, 937 (Utah 1988). And when a curative instruction is not deemed to be sufficient to overcome the potential for prejudice, the out-of-court statements simply will not be admitted. Wetzel, 868 P.2d at 68–69; Auble, 754 P.2d at 937. However, this case does not involve a homicide, and the statements were not related to Victim’s state of mind at or near the time of the attack.

At ¶ 24.

Further, out-of-court statements related to a victim’s state of mind are admissible when a victim’s mental condition is at issue in the trial or is “relevant to prove or explain her subsequent acts or conduct.” See State v. Wauneka, 560 P.2d 1377, 1379 (Utah 1977). . . . Because Victim’s credibility had become an issue at trial, it was not error for the trial court to admit nontestimonial out-of-court statements that would provide an explanation for her inconsistent statements and her failure to appear.

At ¶ 25.

Nor was trial counsel ineffective for failing to request a limiting instruction concerning the out-of-court statements. Choosing to forgo a limiting instruction can be a reasonable decision to avoid drawing attention to unfavorable testimony. . . .

At ¶ 26.

Inquiry into Request for New Defense Counsel

When an indigent defendant expresses dissatisfaction with his appointed attorney, the trial court must make “some reasonable, non-suggestive efforts to determine the nature of the defendant’s complaints” and inquire sufficiently to “determine whether the defendant’s relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution or even to such an extent that his or her Sixth Amendment right to counsel would be violated but for substitution.” State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987). “[P]erfunctory questioning is not sufficient,” and a trial court’s inquiry will generally meet the standard if it unearths the specific, rather than general, concern a defendant has about his counsel’s performance. Id. Here, the trial court inquired into Defendant’s request by asking for a written motion and then repeating back to Defendant the trial court’s interpretation of the concern to make sure the court understood it fully. Once the court was assured it understood Defendant’s specific concern, it then explained the applicable legal concepts and inquired as to what Defendant would have asked Victim had he fully understood his right to cross-examine her at the preliminary hearing. This kind of thoughtful inquiry certainly meets the “reasonable, non-suggestive” standard. See id.

At ¶ 28.

Substitute counsel is mandatory when a trial court’s inquiry uncovers good cause, but absent such good cause, a decision to grant or deny a defendant’s request for new counsel is discretionary. Id. at 272. Trial courts are afforded “particularly broad deference” when a motion for new counsel is made by a defendant “at the threshold of the trial.” State v. Vessey, 967 P.2d 960, 962 n.1 (Utah Ct. App. 1998). Here, the court’s inquiry uncovered no good cause for replacing counsel. Thus, we conclude that it was not an abuse of discretion for the trial court to deny Defendant’s request for new counsel, made just four days before trial was to begin, when the conduct complained of was properly deemed to have been sound trial strategy.

At ¶ 29.

Merger

Defendant’s final argument is that the jury instructions improperly allowed Defendant to be convicted of aggravated assault in addition to aggravated kidnapping and aggravated burglary. Although couched in terms of a challenge to the jury instructions, Defendant’s argument is, at its core, an argument about merger. Defendant argues that his conviction for aggravated assault should be vacated because of the crime’s statutory overlap with aggravated burglary and aggravated kidnapping.

At ¶ 30.

A defendant may not be convicted “of both the offense charged and [a lesser] included offense. An offense is so included when . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Utah Code Ann. § 76-1-402(3) (LexisNexis 2012). When “crimes standing in a greater-lesser relationship have multiple variations,” we must “consider the evidence to determine whether that relationship existed between the specific variations of the crimes actually proved” at trial. State v. Bradley, 752 P.2d 874, 877 (Utah 1985). Even if there is overlap in the statutory elements, if the convictions rely on “materially different acts,” then one crime will not be a lesser included offense of another. See State v. Smith, 2003 UT App 179, ¶ 16, 72 P.3d 692. In making this evaluation, we will view the evidence in the light most favorable to the jury’s verdict. State v. Sherard, 818 P.2d 554, 557 (Utah Ct. App. 1991).

At ¶ 31.

A conviction for aggravated burglary requires proof of burglary plus one of the following variations: (1) bodily injury, (2) the use or threatened use of a dangerous weapon, or (3) the possession or attempted use of a dangerous weapon or explosive. Utah Code Ann. § 76-6-203 (LexisNexis 2012). Aggravated assault, at the time of these events, required one of the following variations of assault: (1) attempting to do bodily injury with unlawful force or violence, (2) threatening to do bodily injury accompanied by a show of immediate force or violence, or (3) acting with unlawful force or violence and causing bodily injury or creating a substantial risk of bodily injury, plus the intentional infliction of serious bodily injury or the use of a dangerous weapon or other means likely to produce death or serious bodily injury. Id. § 76-5-102; id. § 76-5-103 (2008). The jury had before it evidence to support multiple variants of each crime. Indeed, there was enough evidence to support four separate aggravated assaults, but the State charged only one.

At ¶ 32.

The Court summarizes the various acts committed by Defendant that could constitute separate violations of the crimes charged.

At ¶¶ 33-34.

October 3, 2013 Utah Court of Appeals Case Summaries

Wolferts v. Wolferts, 2013 UT App 235, No. 20110646-CA (October 3, 2013)

ISSUES: Contempt, Preservation of Issues for Appeal

Judge Thorne,

Appellant Sonja Michelle Wolferts (Mother) appeals from three of the district court’s orders: the May 5, 2010 order enforcing contempt provisions; the Findings of Fact, Conclusions of Law, and Order of Modification modifying child custody; and the Ruling and Order on Petitioner’s Request for Fees and Costs awarding attorney fees and costs to Appellee Brian Wolferts (Father). We affirm.

At ¶ 1.

The Court sets forth the background of this case.

At ¶¶ 2-6.

The Court sets forth the issues and standards of review.

At ¶¶ 7-9.

Contempt

Mother argues that the district court erred when it punished her for contempt of court without conducting an evidentiary hearing. . . .

At ¶ 10.

. . . Because Mother never sought to call any witnesses or to testify at the contempt hearing, we do not agree with Mother that the commissioner deprived her of her right to confront witnesses or to testify on her own behalf before finding her in contempt. Instead, Mother merely failed to call her own witnesses or to testify herself. Cf. Gardiner v. York, 2010 UT App 108, ¶ 44, 233 P.3d 500 . . . 

At ¶ 13.

In addition to this failure, Mother did not object or otherwise inform the district court of any dissatisfaction with the contempt proceeding conducted by the commissioner, i.e., that the commissioner had failed to conduct an evidentiary hearing. “A recommendation of a court commissioner is the order of the court until modified by the court.” Utah R. Civ. P. 108(a). Because Mother did not object to the contempt proceeding procedure, the district court accepted the commissioner’s recommendation and countersigned the contempt order. Based on these circumstances, we cannot conclude that Mother was denied an opportunity to fully address the contempt allegations against her.

At ¶ 14.

The Court rejects Mother’s alternative arguments because they were inadequately briefed.

At ¶¶ 15-17.

Mother claims that the district court abused its discretion by striking her pleading as a sanction for her failure to comply with a custody evaluation order. Mother maintains that the court-ordered custody evaluation is not a discovery order and therefore the court had authority to enforce the custody evaluation order only through contempt proceedings, which authority she asserts does not allow a court to strike pleadings and enter a default against a noncompliant party. In the alternative, Mother argues that even if the custody evaluation order is considered a discovery order, the court abused its discretion by failing to notify her in advance that any violation of the custody evaluation order could result in a discovery sanction. Father counters that Mother failed to preserve these arguments in the district court.

At ¶ 18.

. . . Because Mother neither preserved her arguments related to whether the district court abused its discretion by striking her pleading, as a sanction for contempt of court, nor timely asserted any exception to the preservation rule on appeal, we do not consider these issues further. 

At ¶ 20.

Custody Determination

Mother next argues that the district court deprived her of her constitutional right to testify and present evidence at the hearing to determine the best interests of the Children. Father urges this court to uphold the court’s modification of the divorce decree, arguing that Mother waived her right to testify and invited error by her conduct and counsel’s statements affirmatively representing that Mother would not be prejudiced by her inability to call witnesses and to testify on her own behalf at the best interests hearing. We decline to consider whether Mother waived or invited any error because we conclude, instead, that Mother failed to preserve the issue.

At ¶ 21.

. . . Although Mother requested that she be permitted to call her own witnesses and testify herself at the best interests hearing, she did not assert that she had a constitutional right to do so, nor did she argue she would be prejudiced by such a restriction. As such, Mother  did not present her constitutional argument to the district court in such a way that it had an opportunity to rule on that issue. . . . Mother does not assert any exceptions to the preservation rule. As a result, we do not consider Mother’s constitutional argument.

At ¶ 22.

Attorney Fees

The Court awards Father his attorney fees for the appeal.

At ¶ 23.

Westmont Maintenance v. Vance, 2013 UT App 236, No. 20120369-CA (October 3, 2013)

ISSUES: Defamation (Judicial Proceedings Privilege), Rule 11 Sanctions

Judge Thorne,

Westmont Maintenance Corporation and Westmont Mirador, LLC (collectively Westmont) appeal from the district court’s order dismissing their defamation complaint against attorney Dwayne A. Vance and imposing sanctions against Westmont in the amount of $2,600 to be paid to Vance to compensate him for the time he spent defending the case on his own behalf. We affirm.

At ¶ 1.

The Court sets forth the background of this case.

At ¶¶ 2-9.

Judicial Proceedings Privilege

The judicial proceedings privilege is an absolute privilege protecting attorneys and others involved in litigation against suits arising from statements made related to the litigation. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) . . . “To establish the judicial proceeding privilege, the statements must be (1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant, or counsel.” Krouse v. Bower, 2001 UT 28, ¶ 8, 20 P.3d 895 (citation and internal quotation marks omitted). Westmont’s specific arguments against the application of the privilege in this case focus on the first and second prongs of this test. 

At ¶ 13.

. . . “[T]he publication of defamatory matter by an attorney is protected not only when made in the institution of proceeding or in the conduct of litigation before a judicial tribunal, but in conferences and in communications preliminary thereto.” Id. (emphasis added) (citation and internal quotation marks omitted). It is clear that Vance’s statements regarding the contested second lease pertained to an existing legal dispute between the Shurtliffs and Westmont that ultimately ripened into formal litigation. Vance’s final letter expressly stated that the parties’ dispute would have to be resolved in court. Cf. id. . . . Further, the forgery question was actually litigated in the Shurtliff–Westmont case, resulting in a determination that there was no evidence that Westmont forged the lease. Under these circumstances, we agree with the district court that Vance’s communications were made “preliminary to a proposed judicial proceeding” and were therefore “made during or in the course of a judicial proceeding” for purposes of the privilege. Id.

At ¶ 15.

Westmont also argues that the allegedly defamatory statements in Vance’s letters lack “some reference to the subject matter of the proceeding.” Id. ¶ 8 (citation and internal quotation marks omitted). The thrust of Westmont’s argument in this regard is that the Shurtliffs never alleged a formal claim of forgery, fraud, or extortion in the subsequent Shurtliff–Westmont litigation. However, “[a] statement need not be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply.” DeBry v. Godbe, 1999 UT 111, ¶ 16, 992 P.2d 979. Rather, “[s]tatements are relevant for purposes of the privilege if they simply have ‘some relationship to the cause or subject matter involved.’” Krouse, 2001 UT 28, ¶ 12 (quoting DeBry, 1999 UT 111, ¶ 16). In this case, Vance’s statements relate broadly to the overall dispute between the Shurtliffs and Westmont and specifically to the question of whether the second lease was valid. This is sufficient to satisfy the requirement that statements “have some reference to the subject matter of the proceeding.” Id. ¶ 8 (citation and internal quotation marks omitted).

At ¶ 16.

Sanctions

Westmont also challenges the district court’s award of $2,600 in sanctions against it to compensate Vance for the time he spent defending himself in this matter. Westmont argues that the district court erred in awarding Vance his own attorney fees because he failed to request such fees in his motion to dismiss and because Utah law prohibits attorney fee awards to licensed attorneys for representing themselves pro se. Westmont also argues that the award cannot be upheld as a sanction because the district court failed to give Westmont notice and an opportunity to respond, in violation of its due process rights.

At ¶ 18.

. . . the district court did not award Vance prevailing party attorney fees, but rather awarded those fees to Vance as a sanction against Westmont. This is suggested by the district court’s oral ruling, but any doubt was removed by the dismissal order’s specific language awarding fees “[p]ursuant to the Court’s inherent power to sanction.” Thus, Westmont’s only argument on appeal that actually challenges the basis for the district court’s attorney fee award is Westmont’s argument that the district court violated Westmont’s due process rights by imposing sanctions without giving Westmont notice and an opportunity to respond.

At ¶ 20.

We conclude that Westmont failed to preserve its due process issue for appeal because it failed to apprise the district court that the court had erred by imposing sanctions without the required notice and hearing. . . . Westmont’s failure to raise the issue to the district court despite multiple appropriate opportunities to do so constitutes a waiver of that issue, and we decline to address it on appeal. . . .

At ¶ 21.

In re K.J., 2013 UT App 237, No. 20111113-CA (October 3, 2013)

ISSUES: Termination of Parental Rights

Per my previously announced policy, I will not be summarizing this case, because it deals with the sufficiency of evidence supporting a determination to terminate parental rights.

October 1, 2013 Utah Supreme Court Case Summaries

State v. Gurule, 2013 UT 58, No. 20111053 (October 1, 2013)

ISSUES: Fourth Amendment, Reasonable Suspicion, Duration of Investigatory Stops, Stop-and-frisk

Justice Parrish,

On appeal, Gurule argues that the search was unlawful because the officers did not possess reasonable suspicion that there were drugs in his vehicle when they stopped him for a minor traffic infraction. He further argues that the officers manipulated his Adult Probation and Parole (AP&P) agent into requesting that they conduct a warrantless parole search of Gurule’s vehicle. Gurule argues that this search violated both his parole agreement and his state and federal constitutional rights. The State responds that the officers had reasonable suspicion that Gurule possessed illegal drugs, justifying Gurule’s detention. The State further responds that Gurule’s AP&P agent possessed reasonable suspicion that Gurule had violated his parole and therefore reasonably requested that the officers search Gurule’s truck on the agent’s behalf.

At ¶ 2.

We hold that the officers lacked reasonable suspicion that Gurule was engaged in or about to be engaged in criminal activity. They improperly extended the duration of Gurule’s stop when they abandoned the original purpose of the stop—to investigate a minor traffic infraction—and instead undertook a prolonged investigation into Gurule’s possible drug activity. The district court therefore erred when it denied Gurule’s motion to suppress the evidence obtained through the officers’ improper detention and search.

At ¶ 3.

The Court outlines the factual circumstances of the challenged search and detention.

At ¶¶ 4-19.

Gurule argues that his detention was unconstitutional under both the federal and Utah constitutions because the officers improperly extended the duration of his detention. The State argues that the extension of Gurule’s detention was permissible because the officers had reasonable suspicion to justify an investigation into Gurule’s possible drug activity. While we conclude that the officers were justified in initially detaining Gurule for a traffic infraction and undertaking a protective frisk, we agree with Gurule that the officers unconstitutionally extended his detention when the encounter transitioned from a traffic stop to a drug investigation without reasonable suspicion.

At ¶ 21.

. . . Under the Fourth Amendment, we apply a two-part test to determine whether the duration and purpose of a detention is reasonable. Id. ¶ 12. “The first step is to determine whether the [traffic stop] was justified at its inception.” Id. (internal quotation marks omitted). If so, we proceed to the second step, in which we “determine whether the detention following the stop was reasonably related in scope to the circumstances that justified the interference in the first place.” Id. (internal quotation marks omitted).

At ¶ 22.

Stop & Frisk

. . . Gurule’s traffic infraction [failing to stay within lane] . . . provided the officers with justification for the initial stop.  The officers were also justified in requesting Gurule’s driver’s license and vehicle registration, conducting a computer check, and issuing a citation. State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650. Because the only justification for the initial detention was a traffic infraction, however, the officers were required to “remain focused on the original purpose of the stop in the absence of reasonable suspicion justifying an expanded investigation.” Simons, 2013 UT 3, ¶ 38.

At ¶ 23.

Almost immediately after Gurule brought his truck to a stop, Officer Flores asked Gurule to exit the vehicle. While he performed a plain-view search of the area around the driver’s seat, Detective Anderson performed a protective frisk of Gurule. Gurule contends that this frisk and plain-view search were unconstitutional. We disagree.

At ¶ 24.

. . . “Due to this inherent dangerousness, courts allow officers to take certain precautions to protect themselves without having to justify their actions based on reasonable suspicion.” State v. Warren, 2003 UT 36, ¶ 24, 78 P.3d 590. One of these precautions is to allow officers to ask the driver and passengers to exit the vehicle during the pendency of the stop. Id. . . .

At ¶ 24.

Although an officer may order a driver from his vehicle during a traffic stop, the officer is not automatically entitled to conduct a protective search for weapons. Rather, the officer must “point[] to ‘specific and articulable facts which, taken together with the rational inferences from those facts,’ would lead a reasonable person to conclude that the suspect may be armed and presently dangerous.” Warren, 2003 UT 36, ¶ 29 . . . .

 At ¶ 25.

. . . Because “[t]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security,” Mimms, 434 U.S. at 108–09 (internal quotation marks omitted), we evaluate the propriety of Officer Flores’s frisk based on the totality of the circumstances, Terry, 392 U.S. at 21.

At ¶ 26.

The Court outlines the information available to the police at the time they performed the frisk and determines that

Under a totality of the circumstances analysis, . . . the officers observed “specific and articulable facts which, taken together with the rational inferences from those facts,” would lead an officer to the reasonable conclusion that Gurule was armed and dangerous. Terry, 392 U.S. at 21. Our conclusion is bolstered by the fact that “the inherent dangerousness of all traffic stops . . . should be considered under the totality of the circumstances analysis.” Warren, 2003 UT 36, ¶ 25. We hold that the officers were therefore justified in asking Gurule to exit his vehicle to perform a minimally invasive protective search before continuing on with the original purpose of the traffic stop.

At ¶¶ 27-28.

Extending the Duration of the Search?

During the pendency of a traffic stop, if officers gain reasonable suspicion of additional criminal activity, they may turn their attention from the original purpose of the traffic stop to “expediently investigate [their] new suspicion.” Baker, 2010 UT 18, ¶ 13. But “officers must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly.” State v. Morris, 2011 UT 40, ¶ 18, . . .

At ¶ 30.

The State argues in its brief that even before the officers stopped Gurule for a traffic infraction, they possessed reasonable suspicion that Gurule was involved in drug dealing. The State supports its arguments with the following facts: (1) Gurule was seen leaving the location of a reported drug exchange, (2) the license plate reported to dispatch belonged to someone involved in the drug trade, (3) Gurule was Hispanic, (4) Gurule was in Officer Flores’s “special attention folders,” and (5) Gurule was on parole. We disagree that these facts are sufficient to give rise to a “reasonable, articulable suspicion” that Gurule had been, was then, or was “about to be engaged in criminal activity.” Markland, 2005 UT 26, ¶ 10 (internal quotation marks omitted).

At ¶ 34.

The Court rejects the State’s argument that the anonymous phone call and Gurule’s movements upon being followed by police give rise to reasonable suspicion of drug activity.

At ¶¶ 35-36.

Finally, even assuming that the officers possessed reasonable suspicion at the initiation of the traffic stop, that suspicion was dispelled by the officers’ protective frisk and plain view search of the vehicle. The officers saw nothing to indicate that Gurule was armed or involved in the possession or distribution of illegal drugs. Therefore, after the completion of the protective frisk and plain-view search, the officers were obliged to return their focus to the original purpose of the traffic stop. But they did not. Instead, they undertook a prolonged investigation into Gurule’s possible drug activity.

At ¶ 37.

De Minimus Exception?

In Arizona v. Johnson, the U.S. Supreme Court ruled that “[a]n officer's inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” 555 U.S. 323, 333 (2009). In State v. Simons, we relied on Johnson in holding that an officer’s single, unrelated question to the defendant did not present an unconstitutional extension of an otherwise lawful traffic stop. 2013 UT 3, ¶ 39, 296 P.3d 721. But we cautioned “that while some unrelated questioning may be tolerated, officers must remain focused on the original purpose of the stop in the absence of reasonable suspicion justifying an expanded investigation.” Id. ¶ 38.

At ¶ 38.

Here, the officers’ actions “bespoke an utter lack of diligence in pursuing the original purpose of the traffic stop.” Id. ¶ 33 (internal quotation marks omitted). After the officers completed their protective frisk and plain-view search, they did not return to the original purpose of the stop. Instead, the officers made two calls. They first made a call to request a canine unit to assist in their drug investigation. Second, they called AP&P to describe their observations. Neither of these calls had any relation to Gurule’s traffic infraction and they did not constitute a de minimus extension of the stop. Indeed, these calls, and the officers’ subsequent search constituted the bulk of Gurule’s detention. Because the officers did not possess reasonable suspicion that Gurule was engaged in or about to engage in illegal drug activity, we hold that their search of Gurule’s vehicle was unlawful and the evidence obtained as a result should have been suppressed.

At ¶ 39.

Jenkins v. Jordan Valley Water Conservancy District, 2013 UT 59, No. 20120705 (October 1, 2013)

ISSUES: Negligence, Duty of Care, Expert Witnesses

Justice Lee,

The plaintiffs in this case sued Jordan Valley Water Conservancy District (the District) after one of its water pipelines broke and damaged their home. Following discovery, the District moved for summary judgment, asserting, among other things, that the plaintiff homeowners could not prevail on their negligence claim because they had failed to designate an expert to testify regarding the applicable standard of care. The district court granted that motion, and the homeowners appealed. The court of appeals reversed, concluding that expert testimony was unnecessary because the District itself had previously determined that the pipeline should be replaced—a determination that in the court’s view sustained a standard of care calling for replacement.

At ¶ 1.

We granted certiorari and now reverse the decision of the court of appeals. The District’s internal decision recommending replacement did not establish that such a move was required by a standard of care. And because the question whether a pipeline needs to be replaced is outside the knowledge and experience of average lay persons, the homeowners had an obligation to designate an expert to establish a basis for such a duty. Their failure to do so was fatal to their negligence claim, and the district court was right to dismiss it on summary judgment. We reverse the court of appeals on that basis, while vacating—without reaching—the other grounds for its decision.

At ¶ 2.

The court of appeals’ determination that expert testimony was unnecessary rested on a simple premise: that an internal recommendation of replacement sustained a tort law duty to do so. See id. ¶ 40 (characterizing the pipeline as “obsolete”). We find that premise problematic.

At ¶ 13.

An internal determination that a pipeline should be re-placed does not establish a tort law duty to do so. Internal decisions may be made for any number of reasons—convenience, caution, maximization of budget, mistake—having little to do with the standard of care. Thus, the resolution of this issue cannot be “narrowly focused,” as the court of appeals put it, “on the decision to delay three years before replacing the [pipeline].” Id. ¶ 37.

At ¶ 14.

Instead, the critical issue is whether the applicable standard of care required the District to replace the pipeline near the Jenkins home. See Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 10, 979 P. 2d 317 (“In order to prevail on a negligence claim, there must be evidence of a duty breached.”). And we cannot see how the Jenkinses could show that it did without expert testimony.

At ¶ 15.

A history of breakage is not a mandate for replacement.4 Often the prudent response will be repair, not outright replacement. And the repair/replace decision is inherently complex and case-specific, requiring the detail necessary to perform the cost-benefit calculus and the sophistication necessary to interpret it.

At ¶ 19.

In the absence of expert assistance, jurors would not likely possess the information or understanding necessary to make such assessments.  . . .

At ¶ 20.

[L]eft to their own devices, jurors would be forced to speculate about how a reasonable water conservancy district would act, and about whether the District failed to conform to that standard by failing to replace the 3300 South pipeline earli-er.10 Such speculation has no place in our courtrooms—on matters of duty, breach, or otherwise. See Slisze, 1999 UT 20, ¶ 10 (“In order to prevail on a negligence claim, there must be evidence of a duty breached.”).

At ¶ 21.

The court of appeals accordingly erred in concluding that the Jenkinses needed no expert testimony to establish a standard of care requiring replacement of the District’s pipeline. We therefore reverse. In so doing, we also vacate the remainder of the court of appeals’ decision.. . .

At ¶ 22.

September 26, 2013 Utah Court of Appeals Case Summaries

State v. Todd, 2013 UT App 231, No. 20110885-CA (September 26, 2013)

ISSUES: Correction of an Illegal Sentence, Parole Board “sentencing power”

Judge Orme,

Shayne Todd appeals the district court’s denial of his motion to correct an illegal sentence under rule 22(e) of the Utah Rules of Criminal Procedure. We affirm. 

At ¶ 1.

In 2001 Todd was sentenced for “five year to life” for murder.

At ¶ 2.

. . . Nine years later, the Board of Pardons issued an order entitled “Special Attention Review,” which determined that no change would be made to Todd’s sentence and that his 2029 parole hearing date would remain in place. The Board’s order listed the length of Todd’s sentence for murder as “5–100 years.” Todd filed a pro se motion under rule 22(e) of the Utah Rules of Criminal Procedure, arguing that the Board had altered his sentence and that the sentence was therefore illegal. The district court denied the motion. Todd appeals. We review the legality of a sentence for correctness. State v. Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d 854.

At ¶ 3.

Rule 22(e) allows us to “correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” Utah R. Crim. P. 22(e). Because there is no time bar under the rule, its use is “narrowly circumscribed,” State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228 (per curiam), and it cannot be used as “a veiled attempt to challenge the underlying conviction by challenging the sentence,” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. An “illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction or (2) where the sentence is beyond the authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15.

At ¶ 4.

. . . We agree with the district court’s assessment that listing Todd’s sentence as “5–100 years” for his murder conviction “is merely the numerical designation used by the Board of Pardons to reflect” his five-year-to-life sentence. . . . [T]he courts of this state have deferred to the Board when it comes to computing the actual numerical terms of a sentence to be served. 

At ¶ 5.

We see no error in the Board’s use of its numerical computation when calculating Todd’s parole eligibility on his life sentence. In our view, such a designation appears to be one of “practical common sense.” See Jaramillo, 481 P.2d at 395. The record is clear that the Board was not altering or modifying Todd’s sentence. In fact, in the Board’s order setting forth its numerical computation, the Board itself stated that “no change” had been made to Todd’s custodial status. Because we determine that the Board did not alter Todd’s sentence, there is no illegal sentence for us to correct and no due process concerns for us to address.

At ¶ 6. 

The Court held that

the fact that the Board has been given this power [to fix a parole date] does not mean that the Board exercises a “sentencing” power. Rather, the Board merely exercises its constitutional authority to commute or terminate an indeterminate sentence that, but for the Board’s discretion, would run until the maximum period is reached.

[Padilla v. Board of Pardons, 947 P.2d 664, 669 (Utah 1997)]  The Court also determined that “while the courts have the power to sentence, the Board has been given the power to pardon and parole. These are two separate and distinct powers, neither of which invades the province of the other.” . . . “the Board’s exercise of its parole power in setting determinate parole dates does not violate . . . the Utah Constitution” and that Todd’s sentence is therefore not illegal on those grounds. Padilla, 947 P.2d at 669.

At ¶ 7.

Woolums v. Woolums, 2013 UT App 232, No. 20120591-CA (September 26, 2013)

ISSUES: Alimony, standard of living determinations,

Judge Thorne,

Jason Douglas Woolums (Husband) appeals the district court’s order awarding alimony of $579 per month to Christine Woolums (Wife) for a period of time equal to the duration of the parties’ marriage. We affirm.

At ¶ 1.

The Court outlines the trial court’s findings regarding the parties’ financial situation

At ¶¶ 2-5.

In light of this and other evidence, the district court determined that Wife had an unmet monthly need of $1,045 and that Husband had the ability to pay $579 per month in alimony. Accordingly, the court ordered Husband to pay $579 in monthly alimony. Husband argued that the alimony should be rehabilitative in nature and last for some period less than the fourteen-year duration of the marriage. However, the district court awarded traditional alimony for a period equal to the entire duration of the marriage, reasoning that the couple had been married for fourteen years, Wife was thirty-four years old, and Wife had not received any specialized job training or education beyond the high school level. Husband appeals the district court’s alimony award.

At ¶ 6.

Husband’s first argument is that the district court abused its discretion when it accepted Wife’s testimony as to many of her claimed expenses even though those expenses were not yet being incurred at the time of trial and Wife did not provide documentary evidence in support of her testimony. . . .

At ¶ 8.

Husband’s argument that expenses must be current expenses that are actually being incurred at the time of trial is foreclosed by Utah case law addressing this exact issue. This court has disavowed the notion that “standard of living is determined by actual expenses alone.” Howell v. Howell, 806 P.2d 1209, 1212 (Utah Ct. App. 1991). A party’s current, actual expenses “may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including, possibly, lack of income.” Id. It is thus incumbent upon the district court to determine the amount necessary to maintain the standard of living established over the course of the marriage rather than the amount that is actually being spent at the time of trial. . . .

At ¶ 9.

We are similarly unpersuaded by Husband’s argument that Wife was required to provide documentary evidence in support of her claimed expenses. Wife provided bills documenting many of her current expenses, including her water, electricity, and cell phone. As to her other claimed expenses, Wife testified as to the amounts she was claiming and why. The district court largely accepted Wife’s testimony, reducing only her claimed residential maintenance expense while increasing her claimed incidental expenses. The district court’s evaluation of and reliance on Wife’s testimony, along with its own determinations of the reasonableness of the claimed expenses, fell squarely within its broad discretion to determine an appropriate alimony award. . . .

At ¶ 10.

. . . the district court’s discretion clearly encompasses basing its alimony determinations on testimony as to both existing expenses and future expenses that are necessary to maintain an appropriate standard of living. Here, the district court relied on Wife’s testimony, along with some documentary evidence, to determine Wife’s financial need. We affirm the district court’s determination as falling well within the boundaries of its discretion.

At ¶ 11.

Husband argues that the court abused its discretion when it imputed additional part‐time income to Wife at the minimum wage of $7.25 per hour rather than the $10 per hour she could make with her floral experience. Husband also argues that the district court failed to consider all sources of Wife’s income because her religious tithing suggested an annual income greater than that reflected on her W‐2 form. We see no abuse of discretion in the district court’s determinations regarding Wife’s income. . . .

At ¶ 12.

The Court reviews the evidence and finds the trial court did not abuse its fact finding discretion in setting the amount of wife’s yearly income.

At ¶¶ 13-15.

Husband next raises two arguments pertaining to the district court’s treatment of the parties’ marital debt for purposes of determining alimony. Husband argues that the district court’s alimony award failed to adequately account for his voluntary assumption of 93% of the marital debt and that the district court abused its discretion in reducing his monthly debt service expense on a loan from his mother from $500 to $100.

At ¶ 16.

Husband argues that he was entitled to receive some unspecified accommodation in the district court’s alimony award in exchange for his assumption of the vast majority of the marital debt. See Boyer v. Boyer, 2011 UT App 141, ¶ 11, 259 P.3d 1063 (balancing the district court’s allocation of marital debt to husband against its unequal property division in favor of husband). Assuming that this argument is not completely foreclosed by Husband’s voluntary assumption of the debt, we observe that Husband did receive a benefit from the debt allocation—the ability to ensure the payment of the debt and avoid any negative impact on the security clearance required by his current employment. See id. (affirming unequal debt allocation where district court “made Husband responsible for the debt to decrease the likelihood of a bankruptcy, which could result in adverse professional consequences for Husband”). We see no abuse of discretion in the district court’s decision not to further accommodate Husband’s voluntary debt assumption in the alimony award.

At ¶ 17.

. . . In light of the lack of a promissory note, the parties’ informal and sporadic payment history, and the district court’s recognition that Husband’s ability to pay off the loan would increase over time, we see no abuse of discretion in the decision to allow Husband only a $100 monthly allocation for servicing the flexible loan from his mother.

At ¶ 18.

Finally, Husband challenges the district court’s decision to award traditional alimony for a period of time equal to the duration of the parties’ marriage, arguing that Wife’s circumstances are more amenable to a shorter-term award of rehabilitative alimony.  Compare Bell v. Bell, 810 P.2d 489, 491–92 (Utah Ct. App. 1991) (“The most important function of [traditional] alimony is to provide support for the wife as nearly as possible at the standard of living she enjoyed during the marriage, and to prevent the wife from becoming a public charge.” (citation and internal quotation marks omitted)), with Mark v. Mark, 2009 UT App 374, ¶ 12, 223 P.3d 476 (stating that the purpose of rehabilitative alimony is to close the immediate gap between expenses and income and to enable the recipient spouse to become more self-sufficient by the end of the rehabilitative period). Husband argues that the facts of this case are comparable to those in Boyer v. Boyer, 2011 UT App 141, 259 P.3d 1063, which this court described as “precisely the context in which a rehabilitative alimony award may be appropriate.” Id. ¶ 17.

At ¶ 19.

However, while Husband correctly cites Boyer for the proposition that these facts would support an award of rehabilitative alimony, Boyer expressly recognized that the same facts would also support a traditional alimony award. See id. ¶ 19 (“Given the circumstances of this case, neither ruling would be an abuse of the trial court’s discretion.”). In light of this express language of approval based on roughly similar facts, we cannot say that the district court abused its discretion by awarding traditional alimony to Wife in the present case.

At ¶ 21.

Judge Orme, (dissenting in part)

I concur in the court’s opinion in all respects but one. The loan from Husband’s mother seems to have been on a much firmer footing than the intra‐family “loans” that sometimes surface in divorce cases. See generally Finlayson v. Finlayson, 874 P.2d 843, 848 (Utah Ct. App. 1994) (“Whether moneys received from close family members represent a gift or a debt can be problematic.”). While there may not have been a note memorializing the loan in the instant case, there was a firmly established payment schedule of $500 per month. Cf. Baker v. Baker, 866 P.2d 540, 543 (Utah Ct. App. 1993) (holding that evidence was sufficient to support trial court’s finding that loan from husband’s parents was not a gift, even though no note memorialized debt, where husband and his parents had always viewed the money as a loan and there was evidence of payment history). Thirty such payments were made. And the one $1500 payment was presumably just a single check covering three months. The fact that seven payments were missed as the marriage was winding down did not mean the debt had vaporized; rather, it meant that the family was readjusting to the financial realities of divorce and that Husband’s mother was inclined to cut them a little slack.

At ¶ 23.

I would remand the case for the limited purpose of having the district court recompute the monthly alimony amount payable by Husband, taking into account the full amount of this $500 per month expense for debt payment.

At ¶ 25.

Stone v. M&M Welding, 2013 UT App 233, No. 20120359-CA (September 26, 2013)

ISSUES: Employment Law, “pretaliatory discharge”

Judge Voros,

This appeal involves a “pretaliatory” discharge—an employee alleges that his employer discharged him not because he had filed a workers’ compensation claim but because he was about to. The district court granted summary judgment in favor of the employer. We reverse and remand for further proceedings.

At ¶ 1.

. . . M&M moved for summary judgment, arguing that because Stone had been terminated in May 2010 and did not file a workers’ compensation claim until February 2011, his termination could not have been in retaliation for filing the claim. The district court agreed and granted M&M’s motion, ruling that “[Stone] could not have been fired in retaliation for filing a workers[’] compensation claim since he was fired 8 months before he filed the claim.” Stone appeals that judgment.

At ¶ 5.

“To make out a prima facie case of wrongful discharge, an employee must show (i) that his employer terminated him; (ii) that a clear and substantial public policy existed; (iii) that the employee’s conduct brought the policy into play; and (iv) that the discharge and the conduct bringing the policy into play are causally connected.”

At ¶ 9.

The test is broadly worded. While the filing of a workers’ compensation claim is obviously relevant, we conclude that the public policy embodied in the Workers’ Compensation Act may be “brought into play” by conduct short of actually filing a workers’ compensation claim. Such conduct could include preparing a claim, notifying the employer of the intent to file a claim, or discussing the claim with coworkers—although, as [Touchard v. La-Z-Boy Inc. 2006 UT 71, 148 P.3d 945] holds, opposing an employer’s treatment of other employees who are entitled to claim workers’ compensation benefits is insufficient.

At ¶ 10.

A rule protecting employees only after filing would create a perverse incentive for an employer to discharge an injured employee as soon as the employer learns of the employee’s intention to file a claim. Such a rule would be inimical to the “policy of overarching importance to the public” embodied by the Workers’ Compensation Act.

At ¶ 11.

In re D.M., 2013 UT App 234, No. 20130593-CA (September 26, 2013)

I will not be summarizing this case because it reviews the sufficiency of evidence supporting a juvenile court judge’s determination to terminate parental rights.