November 15, 2013 Utah Court of Appeals Case Summaries

In re Z.M., 2013 UT App 267, No. 20130615-CA (November 15, 2013)

ISSUES:  Termination of Parental Rights

I have not summarized this opinion, per my existing policy on summarizing appeals of a decision terminating parental rights.

In re C.U., 2013 UT App 268, No. 20130620-CA (November 15, 2013)

ISSUES:  Termination of Parental Rights

I have not summarized this opinion, per my existing policy on summarizing appeals of a decision terminating parental rights.

Rayner v. Rayner, 2013 UT App 269, No. 20120307-CA (November 15, 2013)

ISSUES: Divorce, Voluntary Underemployment Determination, Dissipation of Marital Assets

Judge Christiansen,

Paul Thomas Rayner (Husband) appeals the trial court’s decree of divorce, challenging the trial court’s property distribution and alimony award. We reverse and remand.

At ¶ 1.

The Court sets forth the factual background of this case.

At ¶¶ 2-3.

On appeal, Husband contends that the trial court exceeded its discretion by misapplying the law and that its findings of underemployment and dissipation are not supported by the evidence. “The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation and internal quotation marks omitted). However, we will reverse if “(1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the evidence clearly preponderated against the finding; or (3) such a serious inequity has resulted as to manifest a clear abuse of discretion.” Id. (citation and internal quotation marks omitted). Furthermore, “we cannot affirm its determination when the trial court abuses its discretion” by failing to enter “specific, detailed findings supporting its financial determinations.” Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct. App. 1993).

At ¶ 4.

Imputed Income

Husband first contends that the trial court’s finding of voluntary underemployment was unsupported by the evidence. . . .

At ¶ 5

. . . A spouse is “‘voluntarily unemployed or underemployed’ when [he or she] intentionally chooses of his or her own free will to become unemployed or underemployed.” [Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748.] . . . .

At ¶ 7.

In Busche, we recently explained what is required under the first step of the imputation analysis to support a finding of voluntary underemployment following the loss of a job. If the trial court determines that a spouse has been involuntarily terminated, the trial court “must then consider what the [spouse] has done in the aftermath of termination to determine whether he or she has become voluntarily underemployed by virtue of his or her failure to then make reasonable efforts to obtain employment at a pay rate comparable to that of the lost employment.” Id. ¶ 21. In addition to considering the spouse’s efforts, the trial court must consider the spouse’s “employment capacity and earnings potential.” Hall v. Hall, 858 P.2d 1018, 1026 (Utah Ct. App. 1993). Employment capacity involves consideration of the spouse’s abilities and limitations, qualifications, experience, and skills. Busche, 2012 UT App 16, ¶¶ 21–22; Hall, 858 P.2d at 1026. An earning potential determination involves comparison of the spouse’s current earnings with his or her historical income, “the prevailing wages for a person with his or her qualifications” and consideration of whether there are jobs reasonably available “in the relevant market for a person with the party’s qualifications and experience.” Busche, 2012 UT App 16, ¶¶ 21–23; Hall, 858 P.2d at 1026. In sum, “a finding of voluntary underemployment must be based on evidence that the party could be earning more with reasonable effort.” Busche, 2012 UT App 16, ¶ 22.

At ¶ 8.

. . . we read the statute as emphasizing the detailed findings of fact necessary to support a decision to impute income, as well as implicitly recognizing that whether a party is voluntarily underemployed or unemployed is really an ultimate fact or a legal conclusion which turns on the subsidiary facts found by the trial court. “Imputation is troubling when the obligor is charged with obligations that he may not be able to pay, even with the best of efforts.” Busche, 2012 UT App 16, ¶ 17 (citation and internal quotation marks omitted). Indeed, in the alimony context, the imputation analysis is a component of determining the obligor’s ability to pay and the recipient spouse’s ability to support himself or herself. Fish, 2010 UT App 292, ¶¶ 14, 22; Willey v. Willey, 866 P.2d 547, 554 (Utah Ct. App. 1993). Imputation “cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Willey, 866 P.2d at 554. Therefore, the trial court must enter not just a finding of voluntary unemployment or underemployment but specific, detailed findings “as to the evidentiary basis for the imputation,” Utah Code Ann. § 78B-12-203(7)(a). . . .

At ¶ 10.

“Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Hall, 858 P.2d at 1021 (citation and internal quotation marks omitted) . . .  “Unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Id. . . . “Findings may not be implied, however, when the ambiguity of the facts makes such an assumption unreasonable.”

At ¶ 11.

Husband argues both that the evidence was insufficient to support the underemployment determination and that the trial court abused its discretion by disregarding the imputation analysis required by Busche and the statute. However, we are unable to review Husband’s arguments due to the inadequacy of the trial court’s findings. “‘[W]here the inadequacy of the trial court’s findings of fact and conclusions of law results in our inability to ascertain the basis of the trial court’s decision, [we are] prevented from effectively reviewing the trial court’s decision and may remand for the entry of more-detailed findings.’” Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425 (second alteration in original) (quoting Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 12, 257 P.3d 1073). We follow that course here.

At ¶ 12.

. . . The trial court included findings on Husband’s minimal efforts to search for a job following his termination and Husband’s ultimate decision to work with a low-paying multi-level marketing company. However, the trial court’s findings of Husband’s employment capacity are sparse. It stated that Husband had degrees “in the computer field” and had the ability to work “regardless of the health concerns that he has.” Extensive evidence was presented at trial that Husband suffered from significant health problems that prevented him from maintaining rigorous or stressful employment or employment with a restrictive schedule. The only contradictory testimony provided at trial was that Wife saw Husband doing physical labor in March 2011. The trial court may have determined that Husband’s testimony was not credible. On the other hand, it could have concluded that the testimony was credible but that the health limitations did not preclude certain types of employment in the fields of computers or teaching, in which he had previously worked. The trial court never identified which types of employment for which Husband was qualified and able to do.

At ¶ 13.

The trial court’s findings on earning potential are equally sparse. . . . [the Court explains].

At ¶ 14.

While the trial court’s subsidiary findings on Husband’s job search efforts may contribute to a conclusion of voluntary underemployment, Husband’s employment capacity and earning potential are necessary elements of that analysis. Given the inadequacy of the trial court’s findings on these elements, we are unable to review the merits of the trial court’s decision to impute income to Husband. We therefore reverse and remand for the entry of adequately detailed findings on the relevant factors and for such recalculations or redeterminations as may then be in order.

At ¶ 15

Dissipation of Marital Assets

Husband next challenges the sufficiency of the evidence supporting the trial court’s finding that Husband dissipated marital assets. In the alternative, he argues that, at most, the evidence supports only a finding that he spent $29,364 of the marital assets on non-family expenses and investments. Husband also argues that the trial court abused its discretion by not making adequate findings and by misapplying the law on the issue of dissipation.

At ¶ 16.

. . . as with Husband’s challenge to the trial court’s imputation of income, we are “prevented from effectively reviewing the trial court’s decision” regarding dissipation given the inadequacy of the trial court’s findings. See Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425 (citation and internal quotation marks omitted).

At ¶ 17.

. . . Utah case law suggests a number of factors that may be relevant to determining whether a party should be held accountable for the dissipation of marital assets: how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses, . . . ; the parties’ historical practices, . . . ; the magnitude of any depletion, . . . ; the timing of the challenged actions in relation to the separation and divorce, . . . ; and any obstructive efforts that hinder the valuation of the assets, . . . . After an “initial showing of apparent dissipation” by one party, the burden shifts to the other party “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” . . . .

At ¶ 19.

Because the principle of dissipation represents a deviation from the general rule, its use “must be supported by sufficiently detailed findings of fact that explain the trial court’s basis for such deviation.” . . . .

At ¶ 21.

Here, the trial court’s findings are inadequate to explain its deviation from the general rules governing the valuation of marital property. The parties did not dispute that the assets were liquidated and spent. But the evidence addressing the use of the liquidated assets was disputed, and subsidiary findings cannot be reasonably implied. See Hall v. Hall, 858 P.2d 1018, 1025 (Utah Ct. App. 1993). The trial court did not explain why it concluded that the liquidation and spending of the assets qualified as dissipation. The trial court stated only that Husband had “spent a lot of money on himself, on trips, on entertainment[,] on doing things that were not by way of family expenses.” This finding does not provide “sufficiently detailed” support for the trial court’s conclusion. See Rappleye, 855 P.2d at 262–63. Furthermore, rather than calculating the amount of assets actually dissipated, the trial court based its valuation on an assumption of legitimate family expenses. A trial court may “estimate, to the best of its ability, the upper limit of the amount of assets that the spouse may have dissipated.” Goggin, 2013 UT 16, ¶ 49. But such an approach is appropriate only “when a spouse’s behavior prevents the court from determining the precise amount of dissipated assets.” Id. ¶ 53; see also Andrus, 2007 UT App 291, ¶ 13. The trial court did not enter any findings suggesting that Husband’s behavior in any way prevented it from determining the precise amount of dissipated assets.5 In fact, as the trial court acknowledged, extensive testimony and exhibits were presented regarding how the liquidated funds were spent. The trial court stated, “There were many documents filed and statement[s] as to what income and expenses were. There was much that would have taken a forensic accountant to analyze.” When insufficient evidence is presented to the court to support a finding of dissipation, the general rules governing the valuation of marital property apply. See Parker, 2000 UT App 30, ¶¶ 13, 15 (explaining the burdens of production and persuasion attending a claim of dissipation). However, if sufficient evidence is presented to the court to support a finding of dissipation, the trial court must explain any deviation from the general rule with “sufficiently detailed findings.” See Rappleye, 855 P.2d at 262–63.

At ¶ 22.

We therefore reverse and remand for the trial court to enter more detailed findings determining whether the liquidated assets were in fact dissipated and what the precise amount of any dissipated assets was or why the amount of any dissipated assets must be estimated. We also direct the trial court to enter any recalculations and redeterminations as may then be in order, such as an updated division of the marital estate, including redivision of the marital home, Husband’s annuity plan, and Husband’s retirement account.

At ¶ 23.

State v. Guard, 2013 UT App 270, No. 20100720-CA (November 15, 2013)

ISSUES: Expert Evidence About the Reliability of Eyewitness Identification; Applicability of New Rule

Judge Roth,

Jimmy D. Guard appeals from his conviction for child kidnapping. Guard asserts that the trial court abused its discretion when it excluded his expert’s testimony on the reliability of eyewitness identification from trial. We vacate the conviction and remand for a new trial.

At ¶ 1.

The Court reviews the factual and procedural history of this case.

At ¶¶ 2-9.

After Guard’s trial, the Utah Supreme Court issued State v. Clopten, 2009 UT 84, 223 P.3d 1103, which addresses the precise issue Guard raises here. In Clopten, the supreme court held that eyewitness expert testimony should be routinely admitted in most stranger identification cases. Id. ¶¶ 30, 49. . . .

At ¶ 10.

The Court states the similarities and differences this case has with Clopten.

At ¶¶ 10-14.

Overall, we believe that the facts of this case substantially parallel the facts that led the supreme court to be concerned about the conviction in Clopten in the absence of expert testimony to educate the jury on the fallibility of eyewitness testimony. This conclusion, coupled with the similarity of the issue presented, the commonality of the proposed expert, and the proximity of the trials, thus confronts us with the question of whether our resolution of Guard’s case should follow Clopten.

At ¶ 14.

Applicability of Clopten

Following oral argument, we requested supplemental briefing from the parties to address the question of whether Clopten should apply to the decision before us [because it was decided after the trial in this case.]

At ¶ 15.

In Griffith v. Kentucky, 479 U.S. 314 (1987), the United States Supreme Court discussed the application of the clear break exception to questions of retroactivity when a conviction is not yet final, meaning the appeal period has not expired and the appeal process has not been exhausted. . . . The Court concluded that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review and not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328 (emphasis added). The United States Supreme Court and the Utah Supreme Court have since limited Griffith’s holding to its context, cases involving rule changes of constitutional dimension. . . . Clopten was not decided on a constitutional basis, and the reasoning of Griffith is therefore not controlling.

At ¶ 16.

Where a rule change is not constitutional, Utah appellate courts have ordinarily not applied “a new rule . . . retroactively if it constitutes a clear break with the past.”8 State v. Lovell, 2011 UT 36, ¶ 73, 262 P.3d 803 (citation and internal quotation marks omitted). “A new rule is a clear break with the past if it caused an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced the older one.” Id. (citation and internal quotation marks omitted). . . . We assume, without deciding, that Clopten is a clear break from prior law. Thus, because Griffith does not control, the general rule precluding retroactive application of a rule change that amounts to a clear break with prior precedent applies here.

At ¶ 17.

Despite our conclusion that Clopten is not retroactive, we believe that the unusual circumstances of Guard’s case nevertheless require application of Clopten’s analysis. Clopten was tried and convicted in February 2006, id. ¶ 2, and Guard’s trial and conviction occurred in May 2006. Both filed timely appeals. Guard’s initial appeal was dismissed due to defense counsel’s failure to file a docketing statement, and his appeal rights were duly reinstated four years later. Had Guard’s initial appeal gone forward in a timely manner, it would have been at roughly the same stage of proceedings on appeal as Clopten. Given the similarities of both the facts and the issues in each case, as well as both defendants’ intention to call the same expert witness, it seems almost inevitable that the two cases would have been either consolidated on appeal or treated as companion cases. . . . Under the circumstances, we conclude that had Guard’s case proceeded on appeal as it would have without his counsel’s default, the result would have been identical to the result in Clopten.

At ¶ 18.

. . . Thus, we conclude that the same analysis that the supreme court applied in Clopten should be applied here. Applying that analysis, we conclude that Dr. Dodd’s testimony should have been admitted.

At ¶ 19.

Clopten Analysis

It is in this kind of stranger identification-plus situation that the Utah Supreme Court determined that expert testimony is critical to ensuring that jurors understand the limitations of an eyewitness identification. As the court explained in Clopten, in the absence of expert testimony, defense attorneys have only two tools for conveying to the jury the possibility that an identification is mistaken: cross-examination and cautionary jury instructions. 2009 UT 84, ¶ 16. These tools, however, “suffer from serious shortcomings when it comes to addressing the merits of eyewitness identifications” of a stranger because an eyewitness may appear confident even when his or her identification is mistaken, a juror may be unwilling to alter his or her belief that the eyewitness is reliable when a cautionary instruction is received only at the close of trial, and such instructions “tend to touch only generally on the empirical evidence . . . that certain factors are known to influence perception and memory” without “explain[ing] how this occurs or to what extent.” Id. ¶¶ 15–16, 24. Expert testimony, on the other hand, “quantif[ies]” the problems that can arise in eyewitness identifications and “teaches jurors about certain factors . . . that have a strong but counterintuitive impact on the reliability of an eyewitness” while the evidence is still being presented, ensuring a better likelihood that “a jury . . . is . . . able to reach a just decision.” Id. ¶ 20. In addition, such testimony can focus more specifically on circumstances generally influencing the accuracy of identifications that are also present in the particular case.

At ¶ 21.

In Clopten, the Utah Supreme Court recognized the shortcomings of the Long instruction for the first time and held that expert testimony is preferable in the stranger identification-plus situation. State v. Clopten, 2009 UT 84, ¶¶ 32–34, 223 P.3d 1103. In the course of its analysis, the court recognized that testimony on the factors that generally affect the accuracy of eyewitness identification is “sufficiently reliable” to be admissible under rule 702 of the Utah Rules of Evidence, id. ¶¶ 35, 38, provided that the witness is “qualified as an expert by knowledge, skill, experience, training, or education,”  Utah R. Evid. 702(a). . . . The [Utah Supreme] court therefore concluded that under either test, the reliability of eyewitness identification expert testimony is so widely acknowledged that it should be considered routinely admissible in cases where the evidence would be helpful to the jury. Clopten, 2009 UT 84, ¶¶ 35–38. . . And “[i]n cases where an eyewitness is identifying a stranger and in which various factors that can affect accuracy are present”—the stranger identification-plus situation—“eyewitness expert testimony is helpful to the jury and thus admissible.” Id. ¶ 38.

At ¶ 22.

The circumstances of Guard’s case fit the stranger identification-plus model. Guard was unknown to the child and the other witnesses prior to their identifying him as the child’s abductor, and there were additional factors that raised questions about the accuracy of the identification. For instance, the child’s opportunity to view her abductor was of very short duration while she was also attempting to escape by fighting him off. When the child later identified Guard as the abductor, he was the only suspect in the photograph lineup who had curly hair, a prominent attribute in her description of the abductor. The child testified that upon seeing Guard’s picture, she told the detective that “that was the person . . . ‘for sure.’” The presence of this factor is important because “juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy.” See id. ¶ 15. Yet the jury did not receive any information regarding this weak correlation, even in the Long instruction.

At ¶ 23.

The Court rejects the State’s argument that this case is procedurally distinct from Clopten.

At ¶¶ 24-26.

Because Guard’s conviction is based solely on eyewitnesses who identified him as the abductor, the reliability of those identifications is “of paramount importance.” See State v. Clopten, 2009 UT 84, ¶ 48, 223 P.3d 1103. Yet several circumstances are present that potentially undercut the reliability of the child’s identification of Guard as her abductor, including the child’s limited opportunity to view the abductor, a stranger; her focus on defending herself from his attack; the possible implications of a cross-racial identification; the photograph lineup only containing one suspect—Guard—who had curly hair, a prominent attribute of the child’s abductor; and the child’s belief that her abductor would be in the lineup. The concern about reliability is underscored by the fact that the child was the only eyewitness to the kidnapping who could identify the perpetrator. The schoolmate witnessed the kidnapping and could describe the person who kidnapped the child but could not identify Guard. And the two neighbors, neither of whom had witnessed the kidnapping or knew Guard, claimed to have seen Guard in the neighborhood only after being shown his picture. Yet both neighbors’ opportunity to view the person they identified as Guard had limitations: one neighbor’s primary focus was on the arrival of her children from school and the other had only seen the person he thought was Guard at a significant distance. In the absence of independent corroborating evidence to support the conviction, we are persuaded that there is a reasonable likelihood that had the jury heard Dr. Dodd’s testimony, it may have assessed the reliability of the eyewitnesses’ identifications differently. . . . At the very least, in the absence of Dr. Dodd’s testimony, our “confidence in the verdict . . . is undermined.” See State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d . . . . Accordingly, we vacate Guard’s conviction and remand for a new trial.

At ¶ 27.

State v. Ekstrom, 2013 UT App 271, No. 20111111-CA (November 15, 2013)

ISSUES: Aggravated Assault, Sufficiency of Evidence, Necessity of Jury Instruction on the Definition of “Serious Bodily Injury”, Ineffective Assistance of Counsel

Judge McHugh,

Angela Dawn Ekstrom appeals from her conviction for aggravated assault, a third degree felony, see Utah Code Ann. § 76-5-103 (LexisNexis 2008) (current version at id. (2012)). Ekstrom claims that there was insufficient evidence of “serious bodily injury,” that trial counsel performed deficiently in approving jury instructions that failed to define “serious bodily injury,” that a police officer improperly opined on the ultimate issue as an undisclosed expert, and that trial counsel performed ineffectively by failing to call an eyewitness identification expert. We conclude that there was sufficient evidence presented to support the jury’s verdict but that the jury was not properly instructed on the definition of “serious bodily injury.” As a result, we reverse Ekstrom’s conviction and remand for a new trial, without considering the other issues she advances on appeal.

At ¶ 1.

The Court describes the facts of this case.

At ¶¶ 2- 6.

The Court sets for the issues on appeal

At ¶¶ 7-9.

Sufficiency of the Evidence

Ekstrom first challenges the sufficiency of the evidence to support the conviction of aggravated assault. In particular, Ekstrom claims that the evidence did not establish the required elements of “serious bodily injury” and the “use of a dangerous weapon,” because Victim did not actually suffer serious bodily injury. Ekstrom’s argument misconstrues the elements of aggravated assault.

At ¶ 10.

Utah Code section 76-5-103 provides in part,

(1) A person commits aggravated assault if he commits assault as defined in Section 76-5-102[5] and he:

(a) intentionally causes serious bodily injury to another; or

(b) under circumstances not amounting to a violation of Subsection (1)(a), uses a dangerous weapon as defined in Section 76-1-601 or other means or force likely to produce death or serious bodily injury.

Utah Code Ann. § 76-5-103(1) (LexisNexis 2008) (current version at id. (2012)). Here, the State argues that the facts supported a conviction for aggravated assault because the pipe used by Ekstrom to hit Victim is a dangerous weapon. The Utah Legislature has defined “dangerous weapon” to include “any item capable of causing death or serious bodily injury.” Id. § 76-1-601(5) (LexisNexis 2012).

At ¶ 11.

Thus, to prove aggravated assault, the State was not required to establish that Victim actually suffered “serious bodily injury.” State v. Peterson, 681 P.2d 1210, 1219 (Utah 1984) . . . . Instead, Ekstrom could be found guilty of aggravated assault if she used an item capable of causing serious bodily injury during the altercation. . . . . Accordingly, we examine the “evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict” to determine if there is sufficient evidence to support a finding that Ekstrom used an item capable of causing serious bodily injury during her altercation with Victim. . . .

At ¶ 12.

. . . we agree with the State and the trial court that irrespective of whether the pipe was metal or plastic, the jury could have found that the pipe was capable of causing serious bodily injury when used to strike Victim repeatedly. . . . While the jury need not have found that the pipe used by Ekstrom was a dangerous weapon, there was evidence in the record from which it could have made such a finding. Therefore, Ekstrom is not entitled to relief on the basis that the evidence was insufficient to support the jury’s verdict.

At ¶ 13.

Ineffective Assistance of Counsel

Ekstrom next argues that her trial counsel was ineffective for failing to object to the absence of a jury instruction defining “serious bodily injury,” which she claims is an essential component of aggravated assault. . . .

At ¶ 14.

. . . [A]n instruction defining a term is necessary when the term “has a technical legal meaning so different from its ordinary meaning that the jury, without further explanation, would misunderstand its import in relation to the factual circumstances.” . . .  urthermore, trial counsel’s performance may be deficient if counsel fails to object or otherwise act to remove the ambiguity of two jury instructions where, although individually correct as a matter of law, the jury instructions used together, “with no explanation or clarification as to their applicability[,] created the potential for confusion and could have misled the jury.” See State v. Hutchings, 2012 UT 50, ¶¶ 19–23, 285 P.3d 1183.

At ¶ 15.

As the State concedes, the jury instructions fail to provide the statutory definition of “serious bodily injury,” the type of injury a dangerous weapon must be capable of inflicting.9 At oral argument, the State also conceded that trial counsel’s failure to object to that omission was deficient performance. Thus, the only dispute here is whether trial counsel’s deficient performance prejudiced Ekstrom. See generally Strickland, 466 U.S. at 687–88; State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.

At ¶ 18.

“To show prejudice, a defendant must establish that ‘there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’” State v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766 (quoting Strickland v. Washington, 466 U.S. 668, 695 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; see also State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1. Therefore, the question here “is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695; see also State v. Fowers, 2011 UT App 383, ¶ 21, 265 P.3d 832.

At ¶ 19.

To convict Ekstrom of aggravated assault, the jury had to find that Ekstrom committed an assault—which requires actual, threatened, or attempted bodily injury—and, under the variant argued by the State, also find that Ekstrom used a weapon capable of inflicting death or serious bodily injury or used other means or force likely to produce death or serious bodily injury. . . . Where the jury was not provided with a definition for “serious bodily injury,” it may have applied the bodily injury definition to both the question of whether Ekstrom had assaulted Victim and the determination of whether the pipe was a dangerous weapon or whether Ekstrom used other means or force likely to produce serious bodily injury. Because the jury was not instructed on the elements of simple assault under section 76-5-102, which is the only requirement of aggravated assault that involves “bodily injury,” it is more likely that the jurors applied the sole injury definition provided to the questions of whether the pipe was a dangerous weapon and what level of force Ekstrom used. Moreover, trial counsel further confused the issue by telling the jury during closing arguments, “Serious bodily injury was defined and told [to] you by the Judge and you’ll have a chance to look at that instruction as you deliberate,” and “[Y]ou can determine what that is when you read that jury instruction.” This inaccurate statement reinforced the likely impression that the only type of injury defined in the instructions should be used to determine whether Ekstrom was guilty of aggravated assault due to the use of a dangerous weapon or the level of force used.

At ¶ 20.

In the present case, our confidence in the jury’s verdict is undermined because there is a reasonable probability that, had a proper instruction on “serious bodily injury” been given, the jury would have determined that the pipe Ekstrom used to attack Victim was not a dangerous weapon capable of causing death or “serious bodily injury” and the force Ekstrom used was not likely to produce such injury. The prosecutor did not proceed on a theory that Ekstrom had caused serious bodily injury to Victim, but instead on the theory that Ekstrom had used a dangerous weapon or force likely to produce serious bodily injury. Indeed, both parties acknowledge that Victim had not suffered serious bodily injury. Thus, to support a conviction for aggravated assault the jury had to find that the pipe Ekstrom used to strike Victim was a dangerous weapon or that Ekstrom used other means or force likely to produce death or serious bodily injury. See Utah Code Ann. § 76-5-103 (LexisNexis 2008) (current version at id. (2012)). Although sufficient, the record evidence is not overwhelming on this point.

At ¶ 22.

Had the record strongly established that Ekstrom used a metal pipe to strike Victim, we would agree with the State that trial counsel’s failure to object to jury instructions that did not define “serious bodily injury” was harmless. Cf. State v. Lambert, 612 N.W.2d 810, 814–15 (Iowa 2000) (holding that there was not a reasonable probability of a different result even if counsel performed ineffectively in failing to object to a jury instruction stating that a metal pipe was a dangerous weapon as a matter of law). Under those circumstances, we could not conclude that there was a reasonable probability that, if instructed properly, the jury would have found that Ekstrom did not use a dangerous weapon on Victim. . . .

At ¶ 24.

Considering the record as a whole, our confidence in the verdict has been undermined by the error in the jury instructions, which may have confused or misled the jury into believing that the pipe was a dangerous weapon simply because it was capable of causing “physical pain, illness or any impairment of physical condition.” See id. § 76-1-601(3) (defining “bodily injury”). Similarly, the jury may have been confused or misled into believing Ekstrom committed aggravated assault simply because she used force likely to cause “physical pain, illness or any impairment of physical condition.” See id. Had the jury been properly instructed on the meaning of “serious bodily injury,” there is a reasonable probability that it would have found that Ekstrom’s actions did not rise to the level of an aggravated assault. See State v. Lenkart, 2011 UT 27, ¶ 38, 262 P.3d 1. Therefore, we reverse Ekstrom’s conviction and remand for a new trial.

At ¶ 26.

November 7, 2013 Utah Court of Appeals case Summaries

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

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

Judge Orme,

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

At ¶ 1.

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

At ¶¶ 2-5.

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

At ¶ 7.

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

At ¶ 9.

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

At ¶ 10.

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

ISSUES: Sentencing

Per Curiam,

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

At ¶ 1.

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

At ¶2.

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

At ¶¶ 3-4.

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

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

Per Curiam,

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

At ¶ 1.

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

At ¶ 2. 

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

At ¶ 3.

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

At ¶ 5.

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

ISSUES: Prescriptive Easement;

Judge Davis,

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

At ¶ 1.

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

At ¶ 3.

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

At ¶ 5.

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

At ¶¶ 5-13.

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

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

Per Curiam,

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

At ¶ 1.

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

At ¶ 2.

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

At ¶ 4.

November 1, 2013 Utah Supreme Court Case Summaries

Waddoups v. Noorda, 2013 UT 64, No. 20120310 (November 1, 2013)

ISSUES: Negligent Credentialing, Retroactive Application of a Statute

Justice Nehring,

The Federal District Court for the District of Utah has certified the following question to this court:

Does section 78B-3-425 of the Utah Code clarify existing law and therefore retroactively apply to bar negligent credentialing claims that arose prior to its enactment?

Utah Code section 78B-3-425 reads:

Prohibition on cause of action for negligent credentialing. It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.

We hold that Utah Code section 78B-3-425, because it is a substantive amendment and contains no expression of retroactivity, does not apply retroactively (to its effective date), and therefore does not bar Plaintiffs’ claim which arose prior to its enactment. 

At ¶ 1.

It is well established that “[t]he courts of this state operate under a statutory bar against the retroactive application of newly codified laws,” and therefore “parties’ substantive rights and liabilities are determined by the law in place at the time when a cause of action arises.” The statute barring retroactive application of new laws contains a single exception, “[a] provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive. “Thus, absent clear legislative intent to the contrary, we generally presume that a statute applies only prospectively.” “The intent to have a statute operate retroactively may be indicated by explicit [statutory] statements” to that effect, “or by clear and unavoidable implication that the statute operates on events already past.” . . .

At ¶ 6.

The statutory language in this case is a single sentence: “It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.” This phrase contains no words indicative of retroactive application, nor does any language appear that evinces a “clear and unavoidable implication that the statute operates on events already past.” Both of the verbs which appear in the sentence are in present tense: “is” and “is not recognized.” It simply cannot be said that the use of the present tense communicates a clear and unavoidable implication that the statute operates on events already past. If anything, use of the present tense implies an intent that the statute apply to the present, as of its effective date, and continuing forward. There is nothing ambiguous about the statute that would necessitate further analysis beyond the plain language. However, that does not end our analysis.

At ¶ 7.

In addition to the single statutory exception, we have long recognized a distinction between substantive and procedural laws as it relates to retroactive application of newly enacted statutes. Laws that “enlarge, eliminate, or destroy vested or contractual rights” are substantive and are barred from retroactive application absent express legislative intent. However, laws which “merely pertain[] to and prescribe[] the practice and procedure or the legal machinery by which the substantive law is determined or made effective” are procedural and “may be given retrospective effect.” In purporting to eliminate the cause of action of negligent credentialing, section 78B-3-425 cannot be said to be merely procedural, but rather is clearly substantive in nature. IHC concedes this point. 

At ¶ 8.

The Court repudiates the clarifying amendments exception to the general rule that statutes do not apply retroactively.

At ¶¶ 9-11.

Garza v. Burnett, 2013 UT 66, No. 20120180 (November 1, 2013)

ISSUES: Equitable Tolling of Statute of Limitations for § 1983 Claims

Justice Nehring,

We have agreed to answer the following question certified to us by the United States Court of Appeals for the Tenth Circuit:

Under Tenth Circuit decisions at the time Gerardo Thomas Garza filed his complaint, approximately two years remained in [the] limitations period [before his claim would become time-barred]. A Supreme Court decision soon after filing, however, overturned those decisions and rendered his complaint approximately ten months late. Under Utah law, does an intervening change in controlling circuit law merit equitable tolling under these circumstances?

For the reasons set forth below, we hold that an intervening change in law does merit equitable tolling.

At ¶¶ 1-2.

. . . “Under our traditional principles of equitable tolling, the party seeking equitable tolling must first show that he was indeed disabled . . . from protecting his claim.” We have heretofore only found disability sufficient to warrant equitable tolling through application of the discovery rule. Today, we hold that an intervening change in controlling law that extinguishes a cause of action also constitutes disability sufficient to meet the high bar to warrant equitable tolling.

At ¶ 11.

It is not often that a timely filed claim retroactively becomes untimely because of a judicial decision. We recognize that “[t]hese shifting authorities have placed . . . [Mr.] Garza in an unusual position.” Officer Burnett argues that Mr. Garza is not entitled to equitable tolling because he has failed to show that he could not reasonably have complied with the limitations period. Officer Burnett’s argument is premised on the fact that at the time Mr. Garza’s conviction was reversed, Mr. Garza still had over fourteen months in which to timely file his complaint under Wallace, but failed to do so. Instead, Mr. Garza waited two years to do so. The flaw in Officer Burnett’s argument can be traced to the fact that when Mr. Garza filed his complaint, it was timely under then-controlling circuit precedent. Statutes of limitations do not differentiate between plaintiffs who file as soon as their claims accrue and those who wait until the end of the limitations period. At bottom, Officer Burnett does not argue that Mr. Garza should have been more timely, but rather he is arguing that Mr. Garza should have been more prophetic. The law does not penalize parties for prophetic inadequacy. Neither does the law punish people for circumstances that are completely out of their control.28 Refusing to equitably toll the statute of limitations under these circumstances would be manifestly unjust because Mr. Garza would lose his cause of action due to circumstances beyond his control and through no fault of his own.

At ¶ 12.

In consideration of the rationale underlying equitable tolling, we hold that when a change in controlling law extinguishes an individual’s cause of action, equity will toll the statute of limitations to afford the plaintiff a reasonable period of time after the change in law to bring his claim. Indeed, this is precisely the type of circumstance that merits equitable tolling. 

At ¶ 14.

Accordingly, a plaintiff that files timely before the change in law renders the claim untimely will uniformly satisfy this reasonable period of time. As such, Mr. Garza is entitled to equitable tolling because his claim was timely under Tenth Circuit precedent as it existed at the time of filing but was rendered untimely retroactively by the intervening change in law effectuated by the Supreme Court’s Wallace decision.

At ¶ 15.

Francis v. State, 2013 UT 65 No. 20111027 (November 1, 2013)

This is an amendment to 2013 UT 43.  The Court rewrites the 3^rd sentence in paragraph 47.  It does not appear to be a substantive change.

October 31, 2013 Utah Court of Appeals Case Summaries

Harper v. Harper, 2013 UT App 258, No. 20120994-CA (October 31, 2013)

ISSUES: Divorce Findings

Per Curiam,

Bruce A. Harper (Husband) seeks to appeal a March 29, 2012 order on his petition to modify the parties’ divorce decree and an October 26, 2012 order on his motion to set aside the judgment on his petition to modify.. . .

At ¶ 1.

Only issues challenging the October 26, 2012 order on the motion to set aside the judgment are before us in this appeal. Those issues are whether the district court erred in denying the motion to set aside its orders regarding (1) the parties’ life insurance policy, (2) Husband’s claim for reimbursement of amounts paid for the children’s medical expenses, (3) child custody, and (4) amounts claimed by Husband related to the marital residence. When an order on a motion to set aside a judgment is appealed, the appeal is limited to review of the motion to set aside and is not an appeal from the underlying judgment. See Franklin Covey Client Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451. The district court is afforded broad discretion in ruling on a motion for relief from a judgment, and its determination will not be disturbed absent an abuse of discretion. See Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989).

At ¶ 2.

The Court reviews the trial Court’s findings and finds that it did not abuse its discretion on any of the issues raised by appellant.

At ¶¶ 3-10.

Partlow Investment Properties v. Yamamoto, 2013 UT App 259, No. 20130382‐CA (October 31, 2013)

 

ISSUES: Untimely Motion to Amend Judgment did not toll time period to file appeal, necessity of signed proposed order

Per Curiam,

Tomoaki Yamamoto appeals the district court’s April 3, 2013 order denying his motion to amend the judgment and to stay execution of the judgment. . . .

At ¶ 1.

[T]he February 22, 2013 order fully resolved the motion for a new trial and other assorted orders, thereby starting the thirty-day notice of appeal period for both the original judgment and the order denying the motion for a new trial. Yamamoto did not file a notice of appeal. Instead, he filed a motion to amend the judgment. This did not stay the notice of appeal period because it was not filed within ten days of the judgment; it was filed within ten days of an order resolving the post-judgment motion. See Utah R. Civ. P. 59(e) (requiring a motion to amend to be filed within “10 days after entry of the judgment”). Thus, it could not operate to toll the period to file a notice of appeal. See Utah R. App. P. 4(b)(1)(D) (stating that time to appeal is extended if a timely motion under rule 59 is filed).

At ¶ 3. 

Further, this court has no jurisdiction over that part of the order granting Partlow Investment Properties’ request for an augmented judgment because the court ordered Partlow to prepare a proposed judgment and that order has not yet been signed and entered by the district court. Accordingly, no final, appealable order exists concerning any issues involving the proposed augmented judgment. See Utah R. App. P. 3(a) (stating that appeals may only be taken from final orders).

At ¶ 4.

Everett v. Department of Workforce Services, 2013 UT App 260, No. 20130063-CA (October 31, 2013)

ISSUES: Fraudulent Receipt of Unemployment Benefits

Per Curaim,

A claimant for unemployment benefits is ineligible to receive benefits for any particular week in which the claimant obtains a benefit “by willfully making a false statement or representation or by knowingly failing to report a material fact.” Utah Code Ann. § 35A-4-405(5)(a) (LexisNexis Supp. 2012). As a result, if a claimant obtains unemployment benefits based upon false information to which he was not entitled, the claimant must repay any amounts received. See id. § 35A-4-405(5)(c)(i). Further, the claimant must pay, as a civil penalty, an amount equal to the amounts received as a result of the fraud. See id.

At ¶ 3.

The Department of Workforce Services’s (the Department) rules state that “[f]raud requires a willful misrepresentation or concealment of information for the purpose of obtaining unemployment benefits.” Utah Admin. Code R994-406-401(2). Thus, in order to establish fraud, the Department must establish materiality of the statement, knowledge, and willfulness. See id. R994-406-401(1). “Materiality is established when a claimant makes false statements or fails to provide accurate information for the purpose of obtaining . . . any benefit payment to which the claimant is not entitled.” Id. R994-406-401(1)(a)(i)(A). Knowledge is established when the claimant knew or should have known that the information submitted to the Department was incorrect or that the claimant failed to provide required information. See id. R994-406-401(1)(b). Finally, “[w]illfulness is established when a claimant files claims or other documents containing false statements, responses or deliberate omissions.” Id. R994-406-401(1)(c).

At ¶ 4.

Here, the evidence supports the Board’s findings and ultimate conclusions. During the two weeks in question, Everett obtained paid employment and worked for forty hours each of those weeks. However, in submitting his weekly claim for benefits, Everett answered “no” to the Department’s question, “During the week, did you work or attend paid training?” Because these statements were false and were made for the purpose of obtaining benefits for which Everett was not eligible, they support findings of materiality and willfulness. Further, because Everett knew or should have known that his statements were false, the statements also support a finding of knowledge.

At ¶ 5.

Everett argues that he did not commit fraud because upon obtaining his employment he contacted an employee of the Department. He explained to the employee that he had to go through testing during the first two weeks of his job, and that if he did not pass those tests, he would not be retained. Everett asserts that after being told this information, the employee told Everett to continue filing claims until his employment was secure. Everett contends that this is exactly what he did. However, the employee merely told him to continue submitting claims; he did not tell Everett how to answer the questions in submitting that claim or to include false information in his claim.

At ¶ 6.

Shah v. IHC, 2013 UT App 261, No. 20120402-CA (October 31, 2013)

ISSUES: Motion to Amend, Special pleading requirements (Fraud),  Expert Testimony, Breach of Contract, and Breach of the Implied Covenant of Good Faith and Fair Dealing

Judge Davis,

Aruna G. Shah and Ghanshyam B. Shah appeal the trial court’s denial of their motion for leave to amend their complaint against [Defendants].

At ¶ 1.

[The Shah’s] assert . . . that the trial court erred in refusing to grant them leave to amend their complaint with respect to [adding] the following claims: “fraudulent concealment, fraud, negligent misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of the UCSPA.

At ¶ 5.

The Shahs assert that the trial court erred in denying them leave to amend their complaint because it failed to individually analyze the legal sufficiency of each of the Shahs’ claims and because the claims were sufficient to withstand a motion to dismiss. “The granting or denial of leave to amend a pleading is within the broad discretion of the trial court, and we will not disturb such a ruling absent a showing of an abuse of that discretion.” Smith v. Grand Canyon Expeditions Co., 2003 UT 82, ¶ 31, 84 P.3d 1154. However, in this case, the trial court denied leave to amend on grounds of futility because it determined that the “proposed amendment would not withstand a motion to dismiss.” See Jensen v. IHC Hosps., Inc. (Jensen II), 2003 UT 51, ¶ 139, 82 P.3d 1076 (citation and internal quotation marks omitted). Whether a claim can withstand a motion to dismiss is a question of law, and we therefore review the trial court’s underlying determination regarding the legal sufficiency of the claim for correctness.

At ¶ 6.

The Shahs first assert that the trial court erred in determining that leave to amend was “an all‐or‐nothing proposition” and rejecting their proposed Second Amended Complaint in its entirety despite having analyzed the legal sufficiency of only some of their claims. . . . Given that “[t]he purpose of [rule 15] is to provide litigants the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties,” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (emphasis added) (citation and internal quotation marks omitted) (interpreting the analogous rule 15 of the Federal Rules of Civil Procedure), we are not convinced that the trial court’s all‐or-nothing approach was appropriate. Rather, in the absence of some other justification for denying leave to amend, the trial court should have analyzed the futility of each individual claim and then, if there were no other grounds for precluding an amendment, granted leave to amend as to those claims that were legally viable, if any. . . .

At ¶ 7,

. . . We therefore turn to the question of whether the trial court correctly determined that the six claims that are the subject of this appeal were legally insufficient and therefore futile.

At ¶ 8.

Fraud Based Claims

The trial court determined that the Shahs’ “fraud‐based claims” lacked specificity and failed to “connect[] specific Defendants to specific fraudulent misconduct or misrepresentations.” Rule 9(b) of the Utah Rules of Civil Procedure mandates that “circumstances constituting fraud . . . shall be stated with particularity.” Utah R. Civ. P. 9(b). “[T]he mere recitation by a plaintiff of the elements of fraud in a complaint does not satisfy the particularity requirement.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d 35. “The relevant surrounding facts must be set forth with sufficient particularity to show what facts are claimed to constitute such charges.” Id. (citations and internal quotation marks omitted). Additionally, in order to plead fraud with particularity, the plaintiff must “identify the offender” rather than simply describe misrepresentations in the passive voice. . . . With respect to the Shahs’ fraud‐based claims (fraudulent concealment, fraud, and negligent misrepresentation) against most of the Defendants, we agree with the trial court that the claims do not comply with the particularity requirement.

At ¶ 10.

“Fraudulent concealment requires that one with a legal duty or obligation to communicate certain facts remain silent or otherwise act to conceal material facts known to him.” Jensen v. IHC Hosps., Inc. (Jensen I), 944 P.2d 327, 333 (Utah 1997); see also Nixdorf v. Hicken, 612 P.2d 348, 354 (Utah 1980). . . .  Fraud requires proof

(1) that a representation was made (2) concerning a presently existing material fact (3) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such a representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party’s injury and damage.

Armed Forces Ins. Exch., 2003 UT 14, ¶ 16 (citation and internal quotation marks omitted). The elements of negligent misrepresentation are similar to those of fraud except that negligent misrepresentation “does not require the intentional mental state necessary to establish fraud.” Price–Orem Inv. Co. v. Rollins, Brown & Gunnel, Inc., 713 P.2d 55, 59 n.2 (Utah 1986); see also Smith v. Frandsen, 2004 UT 55, ¶ 9, 94 P.3d 919. . . .

At ¶ 11.

The Shahs assert generally that all of the Defendants failed to provide them with complete and accurate information regarding Aruna’s health and treatment after she received that treatment and therefore breached their fiduciary duty to her and conducted acts of fraud or negligent misrepresentation. However, as to all causes of action other than fraud and negligent misrepresentation against Dr. Bauman, see infra ¶ 13, the Shahs fail to explain which defendants had what knowledge, which defendants made what statements, or how the Defendants specifically breached their individual fiduciary duties. The Shahs assert that additional discovery is necessary in order to identify which individuals did what. But “a plaintiff alleging fraud must know what his claim is when he files it.” Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 990 (10th Cir. 1992) (interpreting rule 9(b) of the Federal Rules of Civil Procedure), overruled on other grounds by Central Bank v. First Interstate Bank, 511 U.S. 164 (1994), as recognized by Seolas v. Bilzerian, 951 F. Supp. 978, 982 (D. Utah 1997). “[A] complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972); cf. Downtown Athletic Club v. Horman, 740 P.2d 275, 278 (Utah Ct. App. 1987) (explaining that in determining whether to grant an extension to permit discovery prior to hearing a motion for summary judgment, the trial court should consider whether the facts sought through discovery are merely speculative). Thus, the Shahs’ general assertion of wrongdoing against the Defendants does not meet the particularity requirement as to the three fraud based claims.

At ¶ 12.

The Shahs do plead with particularity their claims of fraud and negligent misrepresentation against Dr. Bauman. They cite a number of allegedly knowing false statements made to them by Dr. Bauman, which they maintain “induce[d them] to undergo the expensive, elective spinal stabilization surgery at LDS Hospital instead of deciding to transport [Aruna] to [a hospital near her home in] Colorado or opting for a less expensive, non‐surgical course of treatment such as bed rest.” Dr. Bauman argues that any alleged falsity of his statements, particularly regarding Aruna’s risk of paralysis, her stability prior to surgery, and the allergic reaction she suffered during surgery were beyond the ken of a lay person and needed to be established by expert testimony. We agree. . . . Dr. Bauman asserts that the Shahs’ fraud and negligent misrepresentation claims required expert testimony on the same facts that were the subject of the negligence claims and that because the trial court prohibited expert testimony on those facts due to the Shahs’ failure to timely disclose experts, we should affirm the trial court’s determination that the claims would have been futile.

At ¶ 13.

The Shahs respond that summary judgment was granted only as to the negligence claims and that it therefore did nothing to preclude the proposed claims in the motion for leave to amend. While the summary judgment resolved different claims than those the Shahs now seek to bring, many of those claims are based on the same underlying facts as the negligence claims. The trial court’s ruling that the Shahs’ lack of expert testimony precluded them from establishing facts necessary to their prima facie case of negligence implicitly adjudicated the Shahs’ ability to establish those same facts with respect to any other claims as well. . . . Thus, to the extent that the same factual issues that were relevant to the negligence claims are relevant to the Shahs other claims, the propriety of the trial court’s denial of their motion for leave to amend is moot; permitting the Shahs to amend their complaint would be futile because they could not present expert testimony pertaining to any factual issues that were necessary to the negligence claims. . . .

At ¶ 14.

Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing

“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.” Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. “An implied covenant of good faith and fair dealing inheres in every contract,” and a party breaches the covenant by intentionally injuring “the other party’s right to receive the benefits of the contract.” Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 14, 94 P.3d 193.

At ¶ 16.

To the extent that the Shahs’ claims allege that the Defendants breached their contractual obligations to Aruna “by failing to provide professional health care services in accordance with generally accepted standards of professionalism and good faith,” we agree with the Defendants that the proposed amendment is simply an effort to clothe the negligence claims in contractual language. See Utah Code Ann. § 78B‐3‐403(17) (“‘Malpractice action against a health care provider’ means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.”) . . . Because the same facts necessary to prove medical negligence are necessary to prove breach of contract based on the failure to provide adequate professional health services, the Shahs’ failure to timely file their expert disclosures makes the trial court’s denial of their motion to amend on this issue moot, and amendment now would be futile.

At ¶ 18.

To the extent that the Shahs’ claims are based on the Defendants’ alleged contractual obligations to provide the Shahs with Aruna’s complete medical chart and to inform them of “material information concerning [her] physical condition,” the Shahs have failed to allege that any contracts between the Shahs and the Defendants gave rise to a duty to provide medical information or complete medical records. The duty to provide such information is a common law fiduciary duty arising out of the physician–patient relationship and does not necessarily inhere as a result of a contract to provide medical services. . . .

At ¶ 19.

Violations of the UCSPA

Finally, we agree with the trial court that the Shahs’ UCSPA claim is merely another attempt to litigate the negligence claims under another name. The UCSPA establishes a cause of action for consumers against suppliers for deceptive and unconscionable acts and practices in connection with consumer transactions. See Utah Code Ann. §§ 13‐11‐4 to ‐5 (LexisNexis 2009 & Supp. 2013). The Shahs’ proposed Second Amended Complaint asserts that the “Defendants knowingly and intentionally engaged in deceptive acts and fraudulent practices . . . by indicating to [the Shahs] that the subject of the consumer transactions was of a particular standard, quality and quantity, when it was not” and “by failing to disclose material information concerning [Aruna’s] physical condition.” In other words, the Shahs claim that the Defendants did not provide them with appropriate and professional medical care. This claim falls squarely within the purview of the medical malpractice statute. See id. § 78B‐3‐403(17) (Supp. 2013). The Shahs assert that they are entitled to bring a UCSPA claim even if it overlaps with their negligence claims. See id. § 13‐11‐19(1), (3) (indicating that “[w]hether he seeks or is entitled to damages or otherwise has an adequate remedy at law,” a consumer may bring an individual or class action “for declaratory judgment, an injunction, and appropriate ancillary relief”). However, even accepting this assertion as true, the Shahs’ lack of expert testimony once again precludes them from establishing that the Defendants provided Aruna with inadequate medical care.

At ¶ 20.