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Appellate Highlights

Editor's Note: The following appellate cases of interest were decided by the United States Tenth Circuit Court of Appeals, Utah Supreme Court, and Utah Court of Appeals.

To view the appellate summaries, select the year and month of interest:

On appeal from a conviction and sentence under 28 U.S.C. § 924(c), the Tenth Circuit held, as a matter of first impression, that the residual clause in the definition of “crime of violence” is unconstitutionally vague.  That clause refers to “a felony that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In this medical malpractice claim against the State, the court of appeals held that filing a pre-litigation claim, as required by the Utah Health Care Malpractice Act, prior to filing a complaint does not toll the one-year statute of limitations applicable to claims under the Governmental Immunity Act.

This appeal arose out of the defendant’s convictions for rape and aggravated sexual abuse.  Reversing, the court of appeals clarified the appropriate bounds of expert testimony in a sexual abuse case.  While the expert could offer an opinion that certain symptoms were consistent with sexual abuse, the district court erred by allowing the expert to improperly bolster the victim’s credibility by testifying that only a small percentage of children make false allegations.

In this appeal following a bench trial, which involved several challenges to the district court’s rulings prior and during trial, the court of appeals held that many of the appellant’s arguments were inadequately briefed.  Among those were the appellant’s challenges to two of the district court’s findings of fact.  The Court of Appeals reaffirmed that “[w]hen challenging factual findings on appeal, appellants are expected to carry a heavy burden.”  It explained, “Recasting the evidence that was in front of the trial court is insufficient to demonstrate that a court’s factual finding was clearly erroneous.”

While a summary judgment motion was pending at the district court, counsel for Ultimate Auto Body filed an improper notice of intent to withdraw. Although arguing that the notice of intent to withdraw was improper, Basin proceeded to serve subsequent filings directly to Ultimate Autobody.  Ultimate Autobody did not respond to the summary judgment motion, which was then granted by the district court due to the lack of a response.  The court of appeals held that the failure to serve a notice to appear or appoint, combined with failure to serve counsel who attempted to withdraw, deprived the other party of proper notice and fundamental fairness.

The plaintiffs were arrested based on outstanding warrants and detained in a county jail for 30 days or more prior to their arraignments.  The arraignment delays violated New Mexico law requiring arraignment of a defendant within 15 days of arrest.  The plaintiffs asserted supervisory liability claims against the sheriff and wardens of the jail.  The Tenth Circuit affirmed the district’s court’s dismissal of these § 1983 claims because the state trial court’s failure to schedule timely arraignments could not be attributed to the sheriff or to the wardens.

In this criminal case, the State attempted to offer an expert opinion without providing an expert report, as required by Utah Code § 77-17-13.  Reversing the convictions, the court of appeals held that the trial court abused its discretion by admitting the expert testimony offered by the State, because the State failed to provide the report and, as a result, the district court lacked sufficient information to make a determination as to admissibility under Rule 702.

Appellant was in default of his mortgage agreement in 2008 for failing to make payments.  The mortgage company began the foreclosure process by accelerating the payment due under the agreement in 2016. At issue was whether the triggering event for the six-year statute of limitations period was the breach of the agreement or the accelerated due date.  The Court of Appeals held that although an action on a written agreement usually begins to run at the time of the breach, a more specific statutory provision under the U.C.C. provided that the triggering event was the accelerated due date.

In this post-conviction relief act appeal, the Court of Appeals held that the petitioner’s ineffective assistance of counsel challenges to his guilty plea were not procedurally barred even though he had not moved to withdraw his guilty plea in the criminal case.

While the defendant’s appeal of the revocation of his probation was in process, he completed the sentence the revocation required and was released from prison.  The Court of Appeals then dismissed the appeal as moot because of the release, despite the presence of two of its prior decisions with contradictory holdings.  The Supreme Court affirmed the dismissal of the defendant’s appeal as moot and held: (1) the Court of Appeals has the same authority to overturn its own precedent as the Supreme Court does; and (2) collateral legal consequences are not presumed when an appeal from a probation revocation has otherwise become moot.

This dispute centered on the termination of an employment agreement.  Distinguishing a prior case in which the court had applied an objective reasonableness standard because the contract did not define “just cause,” the Court of Appeals held that where an employment agreement described specific instances that could provide a basis for early termination, the district court erred in incorporating an objective reasonableness standard in the jury instructions.  The Court of Appeals also reversed the trial court’s denial of prejudgment interest and held that the unpaid wages and benefits under the employment agreement qualified for prejudgment interest because they were  “ascertainable by calculation,” even though the jury awarded less than the plaintiff claimed at trial.

The district court dismissed a petition for habeas corpus filed by a man seeking release from Immigration and Customs Enforcement custody following ICE’s reinstatement of an order of removal.  The petitioner alleged specific facts which, if proven, demonstrated he was a U.S. citizen.  The district court concluded that the petitioner had failed to exhaust administrative remedies, and that jurisdiction was barred by the REAL ID Act.  The Tenth Circuit concluded that the exhaustion provision at issue does not govern facially valid citizenship claims, and that the REAL ID Act’s jurisdiction stripping provisions raised serious Suspension Clause concerns because the petitioner must be granted some path to advance his facially valid claim of citizenship in federal court.

Before the defendant was served with a summons and complaint in this § 1983 case arising from a traffic stop, he offered to settle the case by paying the driver $20,000 and the passengers $2,500 each.  The defendant titled his offer “Defendant’s Rule 68 Offer of Judgment.” At trial, the jury awarded $15,000 to the driver and $1 each to the passengers.  The Tenth Circuit nevertheless affirmed an award of costs, concluding Rule 68 requires that a defendant be made a party to the litigation, by service of a summons and the complaint, or waiver of service, before that defendant can make a valid Rule 68 offer of judgment.

In this interlocutory appeal, the Court of Appeals reversed the district court’s denial of two parties’ motions to amend that had been shortly after the close of fact discovery, before any expert discovery began, and before a trial date was in place.  The court held that all Rule 15(a) factors weighed in favor of amendment, and the district court had exceeded its discretion in denying the proposed amendments.

The defendant was convicted of multiple felonies, including a first-degree felony conviction for aggravated murder.  The defendant argued on appeal that the aggravator (knowingly creating a great risk of death to the victim’s father) was unsupported by evidence.  Based on analysis of the two previous Utah cases in which the aggravator was at issue, as well as persuasive authority from other jurisdictions, the Court identified three main factors that should influence the decision as to whether the “great risk of death” aggravator applies: (1) the chronological relationship between the defendant’s actions towards the victim and the third-party; (2) the proximity of the third-party and the victim at the time of the acts constituting the murder; and (3) whether and to what extent the third-party was actually threatened.   Applying these factors, the Court found all three weighed in favor of applying the aggravator, and that there was therefore sufficient evidence for the jury to find the defendant had placed the victim’s father at great risk of death.

After the criminal defendant pled guilty to two counts of aggravated sexual abuse of a child, the district court entered orders for complete and court-ordered restitution for, among other things, the anticipated cost of mental health treatment for the remainder of the victim’s life.  The defendant appealed these orders.  In evaluating this appeal, the Utah Supreme Court addressed, as a matter of first impression, the level of causation required by the Crime Victims Restitution Act.  It held that the Act requires a district court to include in its complete restitution determination the losses that a defendant proximately causes.  Because the district court applied a different causation standard, the Court remanded for further proceedings.  In doing so, it further instructed that a restitution calculation cannot be based on speculative evidence of losses a victim has incurred or is likely to incur. 

In this appeal from a denial of a motion to suppress, the Tenth Circuit joined the Seventh and Ninth Circuits and held that a district court’s assessment of an officer’s good-faith reliance on a warrant under United States v. Leon should be limited to the four-corners of the warrant affidavit, actual information submitted under oath to the issuing judge, and information related to the warrant application process.

In this suit filed to collect a debt purportedly owed to a condominium owners association, the defendant—debtor asserted a counterclaim against the law firm representing the association, arguing the law firm had violated § 1692e of the Fair Debt Collection Practices Act by misrepresenting the amount owed in demand letters the firm had sent to her.  The district court dismissed this claim on summary judgment.  On appeal, the Supreme Court, abrogating a prior Court of Appeals decision, held a law firm is not entitled to reasonably rely upon its client’s representation of the debt owed and must instead have procedures reasonably adapted to avoid this type of error or face liability under § 1692e.

The plaintiff—creditors sought to recover funds that debtors paid to a law firm under a theory of fraudulent transfer.  The court of appeals affirmed the district court’s grant of summary judgment to the law firm and one if its lawyers, holding the law firm was not a “transferee” of the funds at issue under Utah’s Uniform Fraudulent Transfer Act because it held the funds in its trust account in a fiduciary capacity and did not have legal dominion or control over the funds.  

The Court disavowed any prior suggestion in Orvis v. Johnson, 2008 UT 2, that the Utah summary judgment standard is distinct from the federal standard stated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and held that when the burden of production falls on the nonmoving party, the movant can carry its burden of persuasion without putting on any evidence of its own by showing that the nonmoving party has no evidence to support an essential element of a claim.  Applying this standard, the court affirmed summary judgment granted to the defendants, dismissing the plaintiff’s claims for defamation and intentional interference. 

In an opinion emphasizing the importance of a clear record that a criminal defendant understands the consequences of waiving the right to counsel at sentencing, the Court of Appeals vacated a sentence entered without counsel for the defendant present.  Although the Court concluded the criminal defendant clearly expressed a desire to be sentenced without counsel, it held his waiver was not sufficiently knowing and intelligent to be valid.  This was true despite the district court’s attempts to conduct a colloquy with the defendant. 

The criminal defendant appealed his murder conviction, arguing the district court erred by admitting the State’s expert testimony and in admitting evidence of prior acts.  The Supreme Court reversed, agreeing on both counts.  With respect to the expert testimony, the Court held the district court abused its discretion in admitting the State’s expert testimony about whether the victim was suicidal.  The State had not satisfied its threshold burden of demonstrating the method of evaluating suicidal risk used by the expert was generally accepted as a means of assessing the risk of suicide in someone who had passed away or that it was reliable when used to assess suicide risk post-mortem. 

After problems emerged with homes located within a planned unit development, the homeowners association asserted claims against the developer, the builders, and their principals.  In reviewing the district court’s grant of a directed verdict in favor of the developer, the Utah Supreme Court was asked to decide, as a matter of first impression, whether expert testimony is required to establish the standard of care in actions claiming a developer breached the limited fiduciary duties recognized in Davencourt at Pilgrims Landing Homeowners Association v. Davencourt at Pilgrims Landing, 2009 UT 65, 221 P.3d 234.  It held the general framework for analyzing the necessity of expert testimony in negligence claims applies in the breach of fiduciary duty context.  Applying that framework to the claims in this case, the Court affirmed the directed verdict on the basis that expert testimony was required to establish the relevant standard of care and the plaintiff did not produce any such testimony.  The Court further reversed the district court’s award of attorney fees to the developer, awarded in response to a post-trial motion for indemnification based on a provision in the homeowners association’s articles of incorporation.  It held that a post-trial motion was not the appropriate vehicle to litigate this claim, which had been asserted as a counterclaim and was not based upon a statute or prevailing party attorney fee clause.  By not litigating its counterclaim, the developer had waived its claim for indemnification. 

UDOT appealed the district court’s award of $2.3 million in severance damages in connection with UDOT’s condemnation of a portion of property owned by the claimants.  In evaluating the claim for severance damages based on a loss of visibility, the Court of Appeals held the presumption of causation that exists when visibility issues stem from a “structure” built on the taken property does not require the view-impairing structure to be entirely constructed within the taken parcel.  It further held the appropriate “structure” for purposes of this analysis was the freeway interchange, rather than only the component parts constructed on the taken property as UDOT maintained.  Based on these and other rulings, the Court affirmed the entire award of severance damages.  

A jury found the defendant guilty of in-flight assault or intimidation of a flight attendant.  In an interesting analysis of the differences between general and specific intent statutes, the Tenth Circuit rejected the defendant’s argument that Elonis v. United States, --- U.S. ---, 135 S. Ct. 2001 (2015), required specific intent for in-flight intimidation and held a general intent mens rea requirement was consistent with the plain language and purpose of the statute.   

The plaintiff ordered from a wine vendor with Chase Bank credit cards.  He then paid off the balance on the credit cards.  While delivery was pending, the wine vendor filed for bankruptcy and failed to deliver almost $1 million worth of goods.  The plaintiff filed suit against Chase Bank, arguing that under the Fair Credit Billing Act, it was required to refund the money he had paid toward the purchase.  The complaint was dismissed, and the plaintiff appealed.  On appeal, the Tenth Circuit interpreted the plain language of the Act as limiting recovery to those amounts outstanding at the time the claim is filed.  Because the plaintiff had paid off the balance prior to asserting a claim, he was not entitled to recover the money he had already paid. 

This case involved an unsuccessful assertion of privilege.  The district court ordered production, notwithstanding a party’s claim that the care-review privilege applied.  The Court of Appeals affirmed, clarifying that Rule 26 of the Rules of Civil Procedure requires a party to provide a privilege log setting forth sufficient information to evaluate an assertion of the claim-review privilege.  Because the party asserting the privilege failed to provide an adequate privilege log or affidavit, the district court did not abuse its discretion in concluding the party failed to carry its burden of demonstrating a privilege protected the documents from discovery.      

The district court dismissed the plaintiff’s medical malpractice claim on statute of limitations grounds after the jury found she knew that she “might have sustained an injury” more than two years before she filed her complaint. The Court of Appeals reversed and remanded for a new trial.  Among the various issues addressed on appeal, the Court held it was error for the district court to instruct the jury that “discovery of an injury from medical malpractice occurs when an ordinary person through reasonable diligence knows or should know that she might have sustained an injury.”  The addition of the words “might have” impermissibly relaxed the burden of proof that defendants were required to meet for their statute of limitations defense.  The Court also held the defendants’ pre-trial ex parte contact with a nurse who had treated the plaintiff was improper and warranted a sanction under Sorensen v. Barbuto, 2008 UT 8, regardless of whether confidential details of the plaintiff’s care were in fact discussed and regardless of whether actual prejudice resulted from the contact.  

In this appeal from a conviction following a jury trial, the Utah Supreme Court addressed the circumstances required to render a witness unavailable under Rule 804 of the Utah Rules of Evidence.  It held the district court erred in determining a witness who refused to attend trial because she had given birth a week before, several weeks prematurely, and her baby had come home from the hospital just three days before the trial began was “unavailable.”  In order to be “unavailable” under Rule 804(a)(4) based on an illness, the illness must be “of sufficient severity and duration that the witness is unable to be present over a period of time within which the trial reasonably could be held.”  There was no such showing in this case. 

In this case, the Utah Supreme Court declined to answer two questions certified by the United States District Court for the District of Utah.  Both questions implicated the free speech clause of the Utah Constitution.  Expressing concern about the briefing, the Court declined to exercise its discretionary authority to answer certified questions because the parties failed to address the precise constitutional issues. 

In this civil rights appeal, the Tenth Circuit clarified the standard that applies to a motion to set aside a consent decree under the equity prong of Rule 60(b)(5) of the Federal Rules of Civil Procedure.  The Tenth Circuit held the district court erred by focusing on the narrow issue of a party’s past compliance without broader consideration of whether there was an ongoing violation of federal law, and it remanded for additional findings.  

The Tenth Circuit held, as a matter of first impression, that entities engaged in non-judicial foreclosures are not considered “debt collectors” and are not governed by the Fair Debt Collections Practices Act.

This case arose out of an advocacy group’s request for documents relating to a land exchange proposal under the Freedom of Information Act.  On appeal, the Tenth Circuit held that the district court correctly denied the records request under FOIA, because (a) a private contractor created the materials, (b) the Forest Service never obtained the materials, and (c) the materials should not be classified as agency records merely because the private contractor maintained the materials pursuant an agreement with the Forest Service.

The Labor Commission issued a notice of violation of regulations to the plaintiff by sending the notice via FedEx with return receipt requested.  The plaintiff argued the use of FedEx rendered the notice insufficient to trigger the applicable thirty-day statute of limitations, as the Utah Occupational Safety and Health Act expressly stated the notice must be sent by certified mail. The Court of Appeals agreed, holding the legislature intended the term “certified mail” to refer only to items sent via certified mail through the United States Postal Service, and that service by FedEx was therefore insufficient. 

The Court of Appeals reversed the district court’s determination that it had personal jurisdiction over the nonresident defendant, a manufacturer of a helicopter motor, in this lawsuit arising from a deadly crash.  After a thorough analysis of the “stream of commerce” theory of specific jurisdiction applicable in product defect cases, the Court held that the nonresident manufacturer’s general business activities in Utah, which were unrelated to the subject of the lawsuit, were insufficient to establish specific personal jurisdiction. 

In this product liability case, the supreme court rejected the “passive retailer” immunity doctrine of Sanns v. Butterfield Ford, 2004 UT App 203, 94 P.3d 301, as a misreading of the Liability Reform Act. It held that, because the Act preserves the doctrine of strict liability, all parties in the product’s chain of distribution remain strictly liable for sale of a dangerously defective product. To prevent total fault from exceeding 100%, the court held that fault should be allocated on the basis of duty. Since all strictly liable parties have breached the same duty, they should be treated as a single unit for purposes of fault apportionment. The passive retailer then has an implied indemnity claim against the manufacturer for any amount it might be required to pay under the strict liability claim.

The Utah Worker’s Compensation Act has a provision that limits the time an injured worker has to prove a claim to twelve years from the date of the accident. Petitioners, two workers who sought permanent disability benefits more than twelve years after the accident leading to their injury, argued that the provision was an unconstitutional statute of repose under the Open Courts Clause of the Utah Constitution. The Utah Supreme Court agreed that the statute acted as a statute of repose, as it was capable of cutting off a claimant’s right to assert a claim. However, the statute of repose was not unconstitutional because the statute was enacted for the valid legislative purpose of ending prolonged liability for insurance companies and employers, and the twelve-year cut-off was not arbitrary or unreasonable.

The defendant filed a petition for extraordinary relief arguing that the parole board violated his due process rights by classifying him as a sex offender and requiring that he complete sex offender treatment as a condition of his parole. The supreme court held that before it can take the refusal of an inmate to participate in sex offender treatment into consideration in deciding whether to grant parole, the parole board must provide timely written notice of the allegations, the opportunity to call witnesses, and a written decision explaining the basis for the determination.

In this appeal from the district court’s dismissal for lack of personal jurisdiction, the Tenth Circuit provides a thorough overview of specific personal jurisdiction jurisprudence, including the three means by which a plaintiff may establish the requisite “personal direction” by the defendant. The case involved claims against the manufacturer of an aircraft’s engine parts following a crash on a flight from Colorado to Idaho. The defendant-manufacturer is a Delaware corporation with its principal place of business in Alabama. The case was brought in Colorado. The defendant-appellant’s website allowed fixed-base operators (FBOs) to obtain unlimited access to its online service manuals in exchange for an annual fee. A Colorado-based FBO who participated in the program serviced the aircraft involved in the crash. The Tenth Circuit held the defendant-appellant’s website, its online service manuals, and the service company’s participation in the FBO program wereinsufficient to establish specific personal jurisdiction under any of the three “purposeful direction” tests – continuing relationships, market exploration, or harmful effects.

Farrell argued that Officer Montoya had violated her Fourth Amendment Rights by firing three shots at her minivan as she drove away from a traffic stop. The Tenth Circuit held that the officer was entitled to qualified immunity against a claim of excessive force. Under the Fourth Amendment, a claim for excessive force requires a seizure of the suspect. A seizure can only occur if the suspect submits to police authority, and it must be more than a temporary halt. Because the minivan was fleeing when Montoya fired the shots, no seizure occurred, and a claim for excessive force could not succeed.

In this case, the Utah Supreme Court held the doctrine of equitable conversion protects a buyer’s interests in land when a land sale contract becomes capable of specific enforcement by the buyer, including where buyer-friendly conditions have yet to be satisfied.

The defendant conditionally pled guilty to possession of unauthorized credit cards with intent to defraud. Reversing the denial of the motion to suppress, the Tenth Circuit held that an officer unreasonably expanded the scope of an otherwise permissible traffic stop when the officer took credit cards out of the defendant’s bag and examined them without probable cause to support a credit-card offense.

The court vacated a restitution order against the defendant who was convicted of computer crimes for stealing and disseminating his bosses’ emails. The court held it was plain error for the district court to include in the restitution figure some amount for time spent by the company’s employees while participating in the criminal case against the defendant – regardless of whether they appeared voluntarily or pursuant to a subpoena.

Bajio was required to indemnify Hofheins for lease payments pursuant to their asset purchase agreement. Bajio failed to make the lease payments, and the property owner sued Hofheins. Hofheins then brought a third party action against Bajio for indemnification. Bajio argued that the Hofheins’ failure to tender the defense precluded Bajio from being required to indemnify the Hofheins, and the third party action should have been dismissed under Rule 41(b). The court of appeals disagreed, holding that the failure to tender a defense imposes on the indemnitee the necessity of establishing that it is entitled to indemnity from the indemnitor, but it does not release the indemnitor from its obligation.

Plaintiffs asserted a civil rights claim based on a warrantless search of Utah’s prescription drug database in the course of a theft investigation.  On appeal, the Tenth Circuit held that a detective who accessed a state-run prescription drug database without a warrant was entitled to qualified immunity because the right to privacy in prescription records was neither absolute nor clearly established at the time of the alleged conduct.      

The Utah Supreme Court dismissed this appeal for lack of appellate jurisdiction. The timeliness of the notice of appeal hinged on the timeliness of a Rule 59 motion for new trial, which appellant relied on to toll the time for appeal. Appellant had filed his memorandum in support just before midnight on the deadline to do so, but the motion was not filed until just after midnight the following day. Utah’s electronic filing system and its guidelines establish that the filing date and time is when a filing is received and posted in the electronic system, even if there are technical difficulties that created a delay from the actual filing. The court held that the motion filed shortly after midnight was untimely, even though the memorandum was filed before midnight. The memorandum did not constitute a “motion”; and Rule 6(b)(2) prohibited the district court from extending the time for father to file his Rule 59 motion.

In the midst of divorce proceedings, Husband transferred the couple’s marital home to his mother, intending to void Wife’s claim to the home. Before the divorce was finalized, Husband died. At trial, the court held that the transfer was fraudulent, and awarded the home to Wife. Mother appealed, arguing there was no ongoing debtor-creditor relationship as required under the Utah Fraudulent Transfer Act (UFTA) as this relationship was extinguished upon Husband’s death. Affirming the trial court’s holding, the Utah Supreme Court held that although the UFTA does require an ongoing debtor-creditor relationship, the death of a spouse during a divorce proceeding does not abate the action in regards to property rights that have been determined by the court, and therefore the debtor-creditor relationship was not extinguished upon Husband’s death, and the claim survived against Husband’s estate.

Two juvenile defendants accused of aggravated sexual assault appealed the denial of a motion to suppress post-Miranda statements to detective. The supreme court held that the juveniles knowingly, voluntarily, and intelligently waived their Miranda rights, given the totality of the circumstances, even though parents were not present during the interview. In a footnote, the court observed that best practices might include videotaping the interview, notifying parents, inviting a parent to be present, and taking additional steps to ensure that the juvenile understood the import of the Miranda warning. 

The juvenile court granted a request for an order of protective supervision, based on its finding that the mother exhibited hatred of and disgust toward the father, which caused emotional harm to the children. Reversing in part and remanding, the court of appeals held that insufficient evidence supported a finding of abuse, where there was no indication that a disagreement over a prom dress or purported custodial interference caused the child to suffer emotional harm that resulted in a “serious impairment in [their] growth, development, behavior, or psychological functioning.” Utah Code Ann. § 78A-6-105(24)(b).

Under the Plea Withdrawal Statute, a defendant must move to withdraw his or her guilty plea prior to sentencing or pursue relief under the Post-Conviction Remedies Act. In this case, the defendant argued that the Plea Withdrawal Statute infringed upon his right to appeal a criminal case under the Utah Constitution. The supreme court held that the Plea Withdrawal Statute does not unconstitutionally foreclose a defendant’s right to appeal, because it merely set out procedural requirements for preserving a direct appeal of a motion to withdraw a guilty plea.

Following the mother’s death, a stepfather filed a petition requesting custody of three minor children under Utah’s Custody and Visitation of Persons Other Than Parents Act, which allows a non-family member to seek custody if the biological parent “is absent” or “is found by a court to have abused or neglected the child.” Utah Code Ann. § 30-5a-103(2)(g). The district court dismissed based on its conclusion that the father alleged a pattern of visiting the children once a month. Reversing, the court of appeals concluded that the statutory language implied a present-tense inquiry. Where the stepfather alleged sufficient facts for a factfinder to conclude that the biological father was not presently present on the exact date of the filing of the petition, the district court erred in dismissing the petition.

In this contractual dispute, the defendant argued that the first breach rule excused its non-performance under a royalty payment provision. Giving effect to each part of the contract, the court of appeals held that the defendant could not invoke the first breach rule to excuse its non-performance, where the contract contained specific dispute resolution provisions, which the defendant failed to follow.

In this appeal, the Utah Court of Appeals was asked to interpret the interplay between the Governmental Immunity Act’s (1) waiver of immunity for injuries proximately caused by the negligent act or omission of a governmental employee and (2) retention of immunity for injuries that arise out of or in connection with certain enumerated conduct, including assault or battery. The case involved claims by a student against his school district for negligent hiring, supervision, and retention of a former teacher who had initiated a sexual relationship with him. The court of appeals held that if an immunity-invoking condition is at least “a proximate cause” of the claimed injury, then the government entity is immune from suit.

The court of appeals concluded that in appropriate cases, the probable cause standard required for bindover can be satisfied by circumstantial evidence regarding drug identity, and that it is not always necessary to present evidence of drug identity at a preliminary hearing.  The State had not presented scientific evidence as to the identity of the drug.  

A shareholder brought this action against the company’s board of directors and several of its officers for authorizing and receiving spring-loaded, stock-settled stock appreciation rights.  Because there was no allegation the defendants intended to circumvent the company’s compensation plan, the district court dismissed the complaint under Rule 12(b)(6).  On appeal, the Utah Supreme Court engaged in a detailed analysis of what is required to state a claim against directors and officers under Utah’s Revised Business Corporation Act.  Applying that standard to this case, the court affirmed the dismissal.  

In its January 12, 2017 opinion in this matter, the court reversed summary judgment granted to the defendant in the underlying contract dispute on statute of limitations grounds.  The court reasoned that plaintiff’s complaint was not time-barred because the statute began to run on the maturity date of the loan of the installment contract.  The court granted a petition for rehearing and changed the result from a reversal to an affirmance of the summary judgment.  The court concluded that its reasoning for the earlier decision was sound, but that it could not consider the winning argument because the appellant had not preserved it and had not raised it on appeal. 

Pedestrians that were struck by a car on an unlit street alleged the city was negligent in failing to repair its streetlights. After dismissal on summary judgment, the plaintiff’s filed a Rule 59 motion to alter or amend the judgment. The district court ruled against the motion, and held that it was an inappropriate motion to reconsider. Plaintiffs then appealed the summary judgment decision. Defendants argued that because the Rule 59 motion was deemed an inappropriate motion to reconsider, it had not tolled the time to appeal, and the appeal was therefore untimely. The Utah Court of Appeals held that because the motion for relief was styled as a Rule 59 motion, and it plausibly requested the relevant relief, the motion, was procedurally proper and tolled the time for appeal. 

The federal court certified the question whether a company that had purchased liability coverage for an employee’s vehicle was also required to purchase underinsured motorist insurance. The Utah Supreme Court held that any vehicle that is covered by a policy’s liability insurance must also be covered by underinsured motorist insurance, unless the coverage is waived by a formal acknowledgment.

This appeal arose out of a city’s denial of a billboard owner’s sign relocation request.  Affirming, the supreme court clarified that it would no longer defer to a local agency’s interpretation of its own ordinances and would instead review for correctness.  

Neighboring landowners each filed suit to quiet title to a strip of land adjoining their respective properties.  On appeal, the prevailing landowner argued the appellants lacked standing because they had failed to demonstrate an interest in the property.  Because the trust raised this challenge to the appellants’ standing, appellants had the burden of “demonstrat[ing] how they are aggrieved by the district court’s judgment and how possession of [the] quitclaim deed [they relied on] provides sufficient interest in the matter to invoke th[e] court’s jurisdiction.”  The appellants’ limited briefing on this issue was insufficient to carry this burden.  As a result, the court of appeals dismissed the appeal of the district court’s summary judgment ruling for lack of jurisdiction.  

In this appeal from the issuance of a preliminary injunction, the Tenth Circuit applied its recent holding in Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) and reversed.  Under Fish, issued six weeks after the district court’s issuance of the preliminary injunction, it was error to relieve the plaintiff of the obligation to establish irreparable injury on the basis that the two statutes at issue provided for, but did not mandate, injunctive relief as a remedy.  

A buyer purchased the property at issue at a foreclosure sale resulting from an order authorizing the sale entered in a prior proceeding.  The original owner had appealed that order but did not seek to stay it pending appeal, and the sale occurred while the appeal was pending.  In the present case, the Utah Supreme Court held that the buyer did not take the property subject to the resolution of the first appeal.  “[A]n appellant who takes no action to preserve his interests in property at issue on appeal has no recourse against a lawful third-party purchaser.” 

The court overruled its prior holding in State v. Brooks and held that Utah R. Evid. 804 precludes the admission of preliminary hearing testimony at trial as a matter of law because defense counsel does not have a similar motive to develop testimony at the preliminary hearing as they do at trial.  Regardless, the court affirmed the appellant’s felony conviction, finding that the admission of preliminary hearing testimony at trial was harmless. 

Plaintiffs asserted a First Amendment challenge to a Wyoming statute prohibiting trespass on private land while in the course of collecting resource data from public land.  As a matter of first impression, the Tenth Circuit held that the statute was subject to First Amendment protection because the statute regulated the creation of speech.

This appeal arose out of a class action suit alleging that Cox Communications, a cable service provider, had illegally tied its premium cable services, such as interactive program guides, pay-per view programming, and recording or rewinding capabilities, to its own set top box, in violation of the Sherman Act. The Tenth Circuit affirmed, holding that there was insufficient evidence that the tie of services to the set top box had foreclosed a substantial volume of commerce, as the tie didn’t foreclose any commerce, nor did it prevent or discourage other competitors from entering the market.  

In this appeal of an agency action, the supreme court reminded administrative tribunals of their “independent obligation” to assess a party’s standing before reaching the merits.  Conducting an independent review on appeal, the court held that an environmental organization possessed standing as an association, where its director and members made a sufficient showing that their recreational, aesthetic, and other interests in the land would be harmed by the expansion of mining operations in the absence of relief.       

This case arose out of a challenge to fracking regulations promulgated by the Bureau of Land Management.  The Tenth Circuit abstained from exercising its jurisdiction based on the prudential ripeness doctrine because (a) the current administration had announced its intent to rescind the regulations, and (b) withholding review did not impose a hardship on the parties seeking review of the lower court’s decision.     

This appeal arose from a city council’s denial of a conditional use permit to operate a bed and breakfast in a residential neighborhood.  The plaintiff appealed the council’s decision to the district court, which reversed it, and the council sought review from the Utah Supreme Court.  The Court clarified that, contrary to what it had suggested in some cases, in cases like this one it reviews the decision of the district court and not that of the underlying administrative body.  On the merits, the Court vacated the district court’s decision and remanded with instructions to the district court to remand to the council to generate more detailed findings of fact and conclusions of law. 

In this case, Husband sought termination of alimony because Wife had cohabited with her boyfriend, although she was not cohabiting with him at the time of filing of the motion to terminate. Utah Code § 30-3-5(10) provides, “alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.”  The Utah Supreme Court held that the plain language of the cohabitation statute, and particularly the word “is,”  requires that the former spouse be cohabitating at the time of filing.

In an appeal from a criminal conviction, the defendant challenged the district court’s refusal to allow him to question the victim about her plea in abeyance and uncharged arrest for giving a false name to a police officer under Rule 608 of the Utah Rules of Evidence. The court of appeals held that the limitations placed on defendant’s cross-examination were harmless, because defendant was able to question the victim about the facts underlying the arrest, and her testimony was corroborated by other witnesses whose credibility was not attacked.  

The plaintiffs in this suit all received parking tickets from Salt Lake and brought suit alleging that the notice provided was insufficient to apprise them of the right to challenge the ticket. Affirming dismissal, the Utah Supreme Court held that, although the City’s parking violation notices contained certain misstatements, they were sufficient to apprise the plaintiffs of their rights and opportunity for a hearing. Because the plaintiffs had received adequate notice, they were required to exhaust their administrative remedies, which they had failed to do. 

The Utah Court of Appeals dismissed an insurance company’s subrogation action for lack of standing. The Utah Supreme Court granted certiorari and held that an insurance company had the right to file the subrogation action in its own name pursuant to the express terms of the insurance policy, and it clarified the distinction between a right of subrogation arising under contract and one arising under the right of equitable subrogation.  

After a divorce, the husband placed ownership of his home into a single member LLC, and then failed to pay certain judgments.  The court of appeals held that under the plain meaning of the statutory homestead exemption, the exemption could not be claimed by the LLC.

The court of appeals held that it was an abuse of discretion for the district court to make its alimony determination by assessing the wife’s needs and calculating her actual expenses at the time of trial, rather than the standard of living established during the marriage.  The district court’s conclusion that the parties’ combined resources were insufficient to sustain the marital standard was not a sufficient justification to bypass the traditional needs analysis which requires consideration of the marital standard.

The supreme court held that the juvenile court erred by adopting a per se rule that striking a child with an object (in this case, a belt), without any additional evidence of harm, constituted abuse.  

As a matter of first impression, the Tenth Circuit held obtaining historical cell-service location information under the Stored Communications Act did not require a warrant, because cell-phone users do not have a reasonable expectation of privacy in location data voluntarily conveyed to cell-service providers.  

Holm was convicted of negligent homicide resulting from a traffic accident. During voir dire, Holm was not allowed to ask follow-up questions of individuals who had indicated they or someone close to them had been involved in a serious car accident.  The court of appeals reversed the conviction, holding that as proposed voir dire questions draw closer to probing potential bias, the court’s discretion in deciding whether to allow the questioning narrows, and when requested voir dire questions go directly to the existence of actual bias, the court’s discretion disappears. 

This case involved a claim arising under the Reimbursement Act, which allows public employees to recover fees and costs for criminal charges arising out of or in connection with acts under color of the employee’s authority.  The supreme court held a teacher was entitled to reimbursement of fees and costs incurred in successfully defending charges of aggravated sexual abuse, because the criminal information alleged that the former employee committed the acts while acting in a position of special trust as a teacher.     

The defendant and the State had entered a plea agreement the weekend before trial was set to begin.  Before presenting that agreement to the district court, the State withdrew it on the basis the alleged victim objected to the agreement.   Relying on contract law principles, the court held that “[t]he State may withdraw from a plea bargain agreement at any time prior to, but not after, the actual entry of defendant’s guilty plea or other action by defendant constituting detrimental reliance on the agreement.”  Because there was not sufficient evidence of detrimental reliance in this case, the State could properly withdraw the agreement. 

This appeal centered on whether a payment error affected the timeliness of a personal injury claim against a municipality.  The supreme court reiterated that failure to file a timely undertaking did not present a jurisdictional issue, and held that dishonor of payment did not affect the timeliness of the undertaking under the Governmental Immunity Act.

In this appeal of a criminal conviction, the supreme court held that trial counsel’s assent to an erroneous jury instruction prejudiced the defendant, but that prejudice cannot be presumed in the case of an erroneous jury instruction.  The court also rejected the defendant’s argument that the phrase “an unlawful user of a controlled substance”—the basis of the charge of possession of a firearm by a restricted person—was unconstitutionally vague with respect to him.  In doing so, it adopted an interpretation that has been accepted by many federal courts in connection with the similar federal statute: that there must be a “temporal nexus between the gun possession and regular drug use.”

In this appeal from the juvenile court’s order terminating parental rights of the child, the mother argued, among other things, that the child should have been placed with family or a member of her tribe as prescribed in the Indian Child Welfare Act.  The court of appeals affirmed the termination order, holding that bonding with a foster family can qualify as “good cause” where, as here, the initial placement did not violate the ICWA.

Plaintiff petitioned for a writ of certiorari to resolve whether a court may grant summary judgment on a gross negligence claim in the absence of a standard fixed by law. The Utah Supreme Court affirmed the decision of the Court of Appeals, holding that summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances, regardless of whether the standard is fixed by law. 

The defendant social worker appealed from the district court’s denial of her motion for summary judgment on the basis of qualified immunity in this case involving a substantive due process claim under 42 U.S.C. § 1983.  The plaintiff asserted that claim under the “state-created danger” theory, on the basis the social worker had temporarily placed him with his biological father – a registered sex offender who sexually and physically assaulted him – as a dependent or neglected child while in his mother’s custody.  After providing a useful discussion of the state-created danger theory, the Tenth Circuit held the social worker’s conduct violated clearly established law, such that she was not entitled to qualified immunity.

On a petition for certiorari from the Utah Court of Appeals in a case previously mentioned in these appellate highlights, the Utah Supreme Court reversed the Court of Appeals’ decision that it lacked jurisdiction to divide fees between a lawyer and his former law firm because the law firm had failed to properly intervene in the case.  The supreme court assumed the law firm had failed to properly intervene, but held the lawyer had waived any objection to the propriety of the intervention by “essentially acquiescing in the litigation over the merits of the firm's fee claim and by actively advancing his own competing claim to an award of fees.”

The district court revoked the defendant’s supervised release in part because it found, by a preponderance of the evidence, that the defendant had knowingly been in possession of child pornography. Under 18 U.S.C. § 3583, revocation of parole for possession of child pornography triggers a mandatory minimum sentence of five years’ re-incarceration. The 10th Circuit overturned the sentence, holding that § 3583 violates the Sixth Amendment because it punishes the defendant with re-incarceration for conduct of which he has not been found guilty by a jury beyond a reasonable doubt.

In an interpretation of the Indian Child Welfare Act (ICWA), the Court rejected the application of state law for acknowledging or establishing paternity, and held that a federal standard applies. Specifically, the Court held that a standard of reasonability applies to the time and manner in which an unwed father may acknowledge or establish his paternity, as ICWA is silent both as to these requirements, and a reasonable standard is consistent with ICWA’s liberal administration. 

The plaintiff–employee appealed the district court’s grant of summary judgment in favor of the defendants on her failure-to-accommodate claim under the American’s with Disabilities Act and her genetic information discrimination claim under the Genetic Information Nondiscrimination Act.  In evaluating the employee’s ADA claim, the Tenth Circuit held that a failure-to-accommodate claim does not required any evidence of discriminatory intent and, thus, is not properly characterized as a circumstantial evidence claim subject to the McDonnell Douglas burden-shifting framework or a direct evidence claim.

In this divorce case, the wife had estimated her housing needs for the purpose of alimony.  The trial court rejected her estimate based on its concern that she may not be able to continue living with a friend and, as a result, her figures were neither credible nor relevant.  Relying on Dahl v. Dahl, 2015 UT 79, the trial court imputed needs based upon the amount claimed by the husband.  On appeal, the husband argued the court should have been bound by the wife’s estimate.  The court of appeals held the trial court did not abuse its discretion by imputing a housing amount equal to that claimed by husband for the purposes of determining alimony, where there was no credible and relevant evidence of wife’s need.

The court of appeals reversed the district court’s decision not to terminate alimony, which was based on the district court’s conclusion that the wife was not “cohabitating” with her boyfriend, with whom she lived.  The district court erred in considering whether the wife and her boyfriend held themselves out as husband and wife or had a reputation for being married, because those were legally irrelevant considerations.

This case involved a dispute over the interpretation of Utah’s Permanent Disability Statute (Utah Code § 34A-2-413). The statute requires an employee to satisfy six elements to be considered permanently disabled. One of the elements is that the injury “limit the employee’s ability to do basic work activities.” The court of appeals interpreted this to mean any limitation, no matter how slight.  The supreme court overturned, holding that the element is satisfied only when “the impairment meaningfully inhibits the employee from exercising a common core of capabilities.”

This was an appeal from a district court’s decision to remand a case after concluding that the defendant had waived its rights to remove. The 10th Circuit affirmed, holding that by filing a motion to dismiss in state court, even only an hour prior to filing a notice of removal, the Defendant had waived its rights to remove.

The court answered a certified question from the federal district court regarding whether Utah Code § 78B-2-201(1) and its predecessors are statutes of limitations or statutes of repose.  The court held that these statutes are statutes of repose by their plain language, but it construed them as statutes of limitations with respect to the State’s right of way claims under Revised Statute 2477, because to do otherwise would lead to the absurd result of the State automatically losing title to its rights of way without any opportunity to prevent the loss. 

The defendant asked to withdraw his guilty plea, arguing that it was not knowingly and voluntarily made due to misleading statements made by the prosecution that had undermined the voluntariness of the plea.  The court of appeals agreed, holding that the district court too narrowly focused on Rule 11 requirements, and should have considered the totality of the circumstances, including the defendant’s reasonable reliance on the prosecutor’s misleading statements

After the husband obtained a judgment against his ex-wife in their divorce proceeding due to her failure to convey real property the divorce court had awarded to him, the husband brought this suit against his wife and daughters alleging fraudulent conveyance and seeking to quiet title.  Upon motion by the husband, the Court ordered alternative service by publication.  When the wife did not appear, the district court entered default judgment and a writ of execution on three of the wife’s properties, including the property at issue.  The wife appeared through counsel later that month and moved to set aside the default under Rule 60(b).  The district court denied this motion.  The three properties were then sold at a sheriff’s sale.  The court of appeals held that the wife did not receive the notice required by due process because the husband had not acted diligently and taken all reasonably practical steps to give the wife actual notice.  The district court therefore lacked jurisdiction over the wife and the judgment, as well as the sheriff’s sale and deed based on that judgment, was void.  

An acquaintance of the defendant told police that the defendant admitted to killing the victim, but at trial the acquaintance testified that he had no recollection of making this statement.  The trial court admitted a recording of the acquaintance’s statement into evidence, and the jury ultimately convicted the defendant of aggravated murder.  The defendant argued on appeal that the admission of the recorded statement violated his Sixth Amendment right of confrontation because the acquaintance was unavailable for examination due to his amnesia. The court rejected this argument, concluding that unavailability under the confrontation clause is narrow and literal.  A witness is unavailable if he does not testify but is available if he does.  The court also rejected the defendant’s constitutional challenges to Utah’s aggravated murder sentencing scheme, and accordingly affirmed his conviction. 

The court here affirmed a decision allowing the joinder of a co-holder of a promissory note after the statute of limitations had expired because there was identity of interest between the plaintiffs and the debtor did not suffer any prejudice.  Although the court recognized that privity of contract is not alone sufficient to create identity of interest, here, where RADC and Utah First were co-holders of a single note, and the action was to recover the entire amount on the note, there was sufficient identity of interest for relation back.

The court of appeals held the district court erred in applying Utah R. Civ. P. 26(a)(1)(C) to exclude evidence of damages at trial.  The court concluded that the initial disclosure provided adequate notice of plaintiff’s method for computing damages because the disclosure indicated that plaintiff was entitled to 30% of the price of a company based upon his ownership interest.

The Tenth Circuit held that the plaintiffs have the burden to prove losses to a retirement plan resulting from an alleged breach of fiduciary duties under ERISA, and rejected the argument that a burden-shifting framework should be applied.  Accordingly, the court affirmed summary judgment granted to the defendants because plaintiffs failed to present non-speculative evidence of losses to the plan.  

The Utah Supreme Court announced a “strong presumption that legal malpractice claims are voluntarily assignable.”  It explained that the public policy rationales relied on in other jurisdictions to support non-assignability are largely inapplicable or are not persuasive in this state given developments to Utah’s Rules of Civil Procedure and Rules of Professional Conduct.  The Court did not foreclose the possibility that certain assignments of malpractice claims would present such public policy concerns such that they would not be valid.  However, this case did not present any circumstances to rebut the strong presumption in favor of validity. 

In resolving two separate actions involving challenges to Amendment 64 of the Colorado Constitution (which legalized recreational use of marijuana), the 10th Circuit did not reach the question of whether Amendment 64 was preempted by the Federal Controlled Substances Act (CSA), stating that private landowners had no viable cause of action to privately enforce the CSA’s alleged preemption.

The court held that “[a] person violates Utah Code section 41-6a-517 if he or she operates or is in actual physical control of a motor vehicle with any measurable amount or metabolite of a controlled substance in his or her body.”  Section 41-6a-517 does not require an additional finding of impairment, the statute does not create a status offense that violates the Eight and Fourteenth Amendments of the United States Constitution, and the statute does not violate the Utah Constitution’s uniform operation of laws provision.  Id.

In this petition for judicial review of the Retirement Board’s order denying the petitioner retirement benefits, the Utah Court of Appeals interpreted the Utah Retirement System forfeiture statute, Utah Code § 49-11-501.  It held that because “service credit requires both types of contribution, all of the service credit earned during the period of member contributions is ‘based on’ the member contributions.”  Accordingly, the Board correctly held that by withdrawing all of his member contributions, the petitioner forfeited all of his service credits earned during that employment.

In this appeal of denial of a post-conviction petition challenging a conviction for dealing in materials harmful to minors, the supreme court held the defendant had been deprived of effective assistance of counsel where his attorney failed to raise a First Amendment defense.  Discussing the First Amendment at length, the supreme court concluded that the drawings sent to defendant’s daughter were not obscene, because the drawings were not aimed at appealing to a prurient interest in sex of a minor.

The plaintiff prisoner was forbidden from participating in group prayer with other inmates due to prior terrorist activity. The Tenth Circuit held that the Government cannot rely on Special Administrative Measures to demonstrate the state’s compelling interest required by RFRA, because the furtherance of a compelling governmental interest is an affirmative defense and the burden is placed on the government to demonstrate the interest.

A criminal suspect involuntarily committed to a mental health facility by the state for reasons unrelated to the investigation is not in custody for Miranda purposes, because a reasonable suspect would feel free to end the interrogation, even if he or she could not leave the facility, and was not subject to coercive pressures usually present when officers take someone into custody.

The Utah Supreme Court held that an order of complete restitution as part of a plea in abeyance was a final, appealable order and the court of appeals had jurisdiction to hear such an appeal.  The court emphasized the difference between a complete order of restitution and court-ordered restitution, the former being the entire amount necessary for complete restitution, and the latter taking into account the defendant’s circumstances and ability to pay.  The court stated that a court must make separate determinations for the two kinds of restitution, and that to merge them into one order constitutes error.

The plaintiff, who was paid above minimum wage, argued that her employer was required to turn over to her a share of all tips collected paid by catering customers.  In support of this argument, she relied on a Department of Labor regulation purporting to interpret the tip-credit provision of the FLSA.  The Tenth Circuit held that the DOL lacked authority to promulgate the regulation because there was no “gap” in the statute to fill.   

The court held that officer safety concerns justified a voluntary interaction during a traffic stop, in which the officer requested a passenger’s identification, and the seconds-long extension of the traffic stop resulting from running the identification did not unreasonably prolong the stop.

On remand from the Court’s prior ruling in Veysey v. Veysey, 2014 UT App 264, 339 P.3d 131, the district court held that laches barred the majority of the mother’s claim for reimbursement of daycare expenses even though the statute of limitations had not yet run.

In this discrimination case, the employer argued that employee failed to exhaust administrative remedies because the complaint contained a quid pro quo harassment claim that was absent from the charge of discrimination.  The Tenth Circuit held that the discrimination charge satisfied the exhaustion requirement where it placed the employer on notice of a claim based on sex-based remarks and discrimination, even though it did not specifically mention a quid pro quo harassment.

Overruling a prior interpretation of Utah Code section 76-1-404, the court formally abandoned the “dual sovereignty doctrine,” which had permitted subsequent criminal prosecutions by different sovereigns for the same offense.  In doing so, the court determined that the Blockburger-Sosa test was the appropriate standard for determining whether section 76-1-404 operated as a bar to subsequent prosecution.  The court then held that 76-1-404 barred a state prosecution for sexual exploitation of a minor where the federal government had already convicted the defendant based on the same offense and same conduct.

The court set aside a civil penalty of $413,750 assessed against the petitioner for securities fraud, and returned the case to the agency to reconsider the fine amount.  The court held that although the Utah Securities Commission had authority to impose a fine, it could not impose a fine plus targeted assessments for other issues (in this case, investor losses and investigation costs).

The defendant was convicted of violating 18 U.S.C. § 922(g)(9) by possessing a firearm after having previously been convicted of a misdemeanor crime for domestic violence.  The Tenth Circuit held that a misdemeanor violation of a municipal ordinance did not qualify as a “misdemeanor under… State… law” for the purposes of applying the statute, and accordingly reversed and instructed the district court to vacate the defendant’s conviction and sentence and to dismiss the indictment.  

The court affirmed the Utah Motor Vehicle Enforcement’s decision to deny Tesla Motor UT, Inc.’s application for a license to sell new motor vehicles, holding that Utah Code §§ 41-3-101 (licensing act) and 13-14-101 (franchise act), when read together, prohibit a wholly owned subsidiary of a motor vehicle manufacturer from obtaining a license to sell the manufacturer’s new motor vehicles in stores in Utah.

The Unanimous Verdict Clause of the Utah Constitution does not require unanimity as to theories, methods, or modes of the crime.  Rather, all that is required is unanimity as to guilt—that the prosecutor has proven each element of the crime beyond a reasonable doubt.

A member of the jury venire made comments that prejudiced the entire jury pool.  The court held that trial counsel’s failure to timely move for a mistrial, before the jury was sworn, constituted ineffective assistance of counsel.

Utah Code § 76-1-401 prohibits the State from prosecuting a defendant in separate actions for conduct that may establish separate offenses under a single criminal episode.  The court adopted a totality of the circumstances test with enumerated factors to determine whether conduct aims at a single criminal objective.  Applying this new test, the court concluded that the petitioner’s wage and tax crimes did not have a single criminal objective.

The district court dismissed three section 1983 claims and five state-law claims for lack of standing.  On appeal, the Tenth Circuit held that (a) the plaintiff lacked prudential standing to assert due process or takings claims that belonged to a prior owner of the property, and (b) the district court should have simply declined to exercise supplemental jurisdiction over remaining state law claims after dismissing the federal claims.

After filing suit against BOSC in state court, the Board voluntarily dismissed the suit and sought to enforce an agreement to arbitrate.  BOSC opposed, arguing the Board had waived its right to arbitrate by filing the suit.  The Court held that the Board had not waived its right to arbitrate, because it was not improperly manipulating the judicial process, litigation had not proceeded too far, significant inefficiencies would not result, and neither party was prejudiced by the delay.

The court of appeals affirmed the dismissal of the appellants’ claims for premises liability and negligence arising from an accident in a West Valley City swimming pool, concluding that the appellant failed to sufficiently plead a waiver of immunity under the Governmental Immunity Act.  On the premises liability claim, the court concluded that governmental immunity is only waived for defective or dangerous conditions of a building, which does not extend to the conditions inside the building or conditions unrelated to the structure of the building, such as the condition alleged by the appellant (another teenager obstructing her swim lane).  The court concluded that the negligence claim was barred by the public duty doctrine, and that the appellant had not established the special relationship with West Valley City necessary to support her claim.

The defendant pled guilty to a felony drug charge, and agreed to be sentenced in accordance with a sentencing range established by the Sentencing Commission.  After the sentencing, the Sentencing Commission lowered the sentence range.  The 10th Circuit held that if a plea agreement calls for a defendant to be sentenced within a particular sentencing range, “the district court’s acceptance of the agreement obligates the court to sentence the defendant accordingly,” and the court has authority to reduce the sentence under 18 U.S.C. § 3582(c)(2).

Discussing experiential expert testimony, the court of appeals held the district court did not abuse its discretion in excluding excerpts of an expert’s deposition, where the expert failed to explain how prior experience supported the particular opinion at issue.

The court of appeals affirmed the dismissal of an attorney’s defamation complaint against a former client who posted an unfavorable review online.  The court analyzed the review in detail and concluded that the majority of the statements in it could not be objectively verified, which weighed in favor of the court’s ultimate determination that the unfavorable online review expressed an opinion and was not defamatory under Utah law.

This appeal arose out of a conditional plea entered after the district court concluded that evidence of similar prior acts involving the defendant and other victims was admissible under the doctrine of chances.  The supreme court held that the doctrine of chances was not limited to rebutting charges of fabrication, but instead could be used to prove elements of the offense.  In doing so, the court clarified that courts should first evaluate whether the four foundational requirements of the doctrine have been met and, if so, independently analyze whether the evidence is admissible under rule 403.

In this direct criminal appeal, the defendant argued that the loss or destruction of video footage of the assault for which she was charged violated her due process rights.  The court applied the due process analysis applicable to such a claim, outlined in State v. Tiedemann, 2007 UT 49, ¶ 44, 162 P.3d 1106.  In doing so, the court reaffirmed that the Tiedemann test encompasses a threshold requirement that the defendant demonstrate there is a reasonable probability that the lost or destroyed evidence would have been exculpatory.

The court reconciled two seemingly conflicting provisions of Utah’s underinsured motorist coverage statute: one saying that underinsured motorist coverage is “secondary to the benefits provided by” workers’ compensation; and the other saying that underinsured motorist coverage “may not be reduced by benefits provided by workers’ compensation insurance.”  The court held that under these provisions the UIM insurer was required to fully compensate the injured driver within its policy limits, but only for damages in excess of what workers’ compensation paid, so as to avoid an inappropriate double recovery.

In this suit over an employment contract, the defendant asserted a counterclaim, seeking a setoff (but no net damage award).  Neither party prevailed on their claims at trial.  The court of appeals held that, although he had not prevailed on his claims, Olson was the prevailing party for purposes of a contractual attorney’s fee award, because he had achieved his optimal outcome: zero recovery.

In this divorce case, the district court concluded, on summary judgment, that husband’s business interests were separate property.  Surveying the exceptions to the general presumption that separate property will not be divided, the court of appeals affirmed, holding that wife’s maintenance of the marital household, standing alone, was insufficient to demonstrate contribution to the opposing party’s pre-marital business interests.  The court left open the issue of whether a correctness or deference standard of review would apply to a district court’s pre-trial categorization of marital property.

A Utah resident agreed to construct two gazebos and a shed on defendant’s property in Montana.  The court of appeals rejected the defendant’s claim that the Utah forum selection clause in the contract was unenforceable.  The court held that, although one of the parties was a business entity and the other an individual, there was no reason to conclude that the forum selection clause was unreasonable or unfair; and that Utah’s exercise of jurisdiction over the subject matter only requires a rational nexus to the case or parties.

This appeal presented the question of whether a state employee who acts without state authority can nevertheless be entitled to qualified immunity in a claim under 42 U.S.C. § 1983.  In this divided opinion, the three judges agreed that the district court’s decision holding the defendant district attorney was not entitled to qualified immunity must be reversed.  They disagreed, however, as to whether and to what extent the court should adopt the “scope-of-authority” exception to qualified immunity, and whether to even reach that issue in this case.  Judge Hartz, who drafted the lead opinion, concluded the exception should apply, if at all, only when the authority under state law is clearly established.  Because the district attorney’s authority under New Mexico law was not clearly established, the exception would not apply even under Judge Hartz’s reasoning.

In this appeal of a dispute arising out of the use of a driveway in Big Cottonwood Canyon, the court of appeals held that the district court correctly awarded the claimant a prescriptive easement for the purpose of using the driveway to access the claimant’s property, but erred in determining that the claimant was entitled to use the driveway for parking purposes.  In doing so, the court engages in a thorough discussion of the standards governing prescriptive easements, adverse possession, and continuous use.

The central issue here was whether the juvenile court had subject matter jurisdiction to adjudicate parentage after the mother had voluntarily relinquished her parental rights.  The court of appeals denied the State’s petition, concluding that the juvenile court’s jurisdiction extended to the father’s petition to adjudicate parentage pursuant to the joinder provision of the Utah Uniform Parentage Act because the petition had been joined with the child welfare proceeding before the Mother relinquished her parental rights.

Affirming a summary judgment, the court of appeals held that the district court did not abuse its discretion by striking a declaration that (a) directly contradicted the declarant’s sworn deposition testimony and (b) contained conclusory and speculative statements that lacked specificity or foundation.

The parties’ handwritten settlement agreement after mediation stated that it was subject to drafting a final agreement that would include a non-disparagement provision and other terms.  One party sent the other a draft of a more formal agreement shortly after the mediation, and roughly a month later, the other party responded that they could not agree to the terms as drafted and that they were terminating the proposed mediation agreement.  The court of appeals affirmed enforcement of the settlement agreement, noting that the repudiating party could not rely on its own failure to follow through with reasonable efforts to craft the contemplated written agreement to defeat the condition of drafting a more formal agreement.

The defendant challenged the district court’s grant of summary judgment to the plaintiff on the first two elements of his slander of title claim—publication of a slanderous statement disparaging the claimant’s title and that the statement was false.  The defendant claimed, among other things, that he had a valid attorney’s lien on the plaintiff’s property.  The court affirmed the district court’s holding that the defendant attorney did not have a valid statutory attorney’s lien.  It explained, “An attorney’s single comment concerning property not at issue in the divorce and not owned by the client, made in the course of performing extensive divorce-related work for the client, is too tenuous to connect the legal work to the Property.”

Decedent was required under a divorce decree to designate petitioner as his life insurance beneficiary until their minor children reached the age of 18, but he had violated the order and changed the beneficiary to his current spouse shortly before he died.  The insurer paid the death benefit to the designated beneficiary, and six years later the ex-wife sought an order requiring benefits to be paid to her.  The court held that the plain language of the applicable statute required PEHP to pay life insurance benefits to the man’s last named beneficiary, which it had done, and the divorce decree was not part of the insurance contract, so no second payment was required.

The United States argued for the first time on appeal that evidence of a firearm was admissible under the attenuation doctrine, as established in Utah v. Strieff, a 2016 United States Supreme Court decision issued after the appeal was filed.  Although the 10th Circuit recognized that the Strieff decision came out after the appeal was filed, it held that the attenuation argument was waived, as the United States could have raised the argument below, just as the State of Utah had done in the Supreme Court case.

The validity of a contractual provision that released a business broker from any liability for the buyer’s reliance on its statements depends on allegations or proof of fraud, not on the breadth of the clause, repudiating a prior memorandum decision of the court that suggested otherwise.

Utah Code § 31A-22-303(1), which requires motor vehicle liability insurance policies to cover damages or injuries to third parties resulting from a driver’s unforeseeable loss of consciousness while driving, overrides the common law “sudden incapacity” defense and imposes strict liability in circumstances where a driver suddenly and unforeseeably becomes incapacitated.  The driver’s liability under these circumstances is capped by the limits set forth in the applicable insurance policy.

An employee of the IRS was struck by a co-employee while walking into work in the employer’s parking lot.  The court held that because the accident occurred on the employer’s premises, in a parking lot dedicated to its employees, workers’ compensation provided the exclusive remedy.

Appealing a conviction for aggravated robbery, the defendant argued that the juvenile judge should have been required to recuse herself for lack of impartiality under Utah’s Code of Judicial Conduct prior to binding the defendant over to stand trial as an adult.  The court held that the judge’s marriage to the chief criminal deputy in the prosecuting entity’s office gave rise to an appearance of impropriety, and that the defendant was entitled to another bindover hearing, even in the absence of a showing of prejudice.

In this appeal involving admissibility of evidence of the defendant’s past misconduct, the Supreme Court repudiated the “scrupulous examination” line of cases previously used to review decisions under Rule 404(b) of the Utah Rules of Evidence.  Instead, “appellate courts should simply assess whether the district judge made an error in admitting or excluding the evidence in question.”

Faced with clear evidence that the defendant was evading service of process, the court of appeals upheld service by publication against a due process challenge, holding the plaintiff had been reasonably diligent in its efforts to serve the defendant.

Discussing the disclosure requirements for non-retained experts for the first time since the 2011 revision to the Utah Rules of Civil Procedure, the court of appeals held that the district court abused its discretion by allowing a party to present opinions of a non-retained expert, because the party failed to provide a summary of the witness’s testimony, as required by Rule 26, until four days prior to trial.

In this bankruptcy appeal, the Tenth Circuit adopted the minority view that only affirmative acts to gain possession of, or to exercise control over, property of the estate violate the automatic stay.

In this appeal from an order of dismissal on the basis of qualified immunity, the Tenth Circuit held as a matter of first impression that the Fifth Amendment right against self-incrimination applies when the self-incriminating statements are used during a probable cause hearing.  However, because this was not clearly established at the time the plaintiff’s statements were obtained and used against him during the probable cause hearing, the court affirmed the district court’s ruling that the officer defendants were entitled to qualified immunity.

A convicted serial bank robber asked to attend in-patient drug treatment prior to sentencing. after undergoing inpatient treatment.  The defendant’s apparent success in the treatment program led the district court to sentence him to the 33 days he previously served in pretrial detention.  The government appealed, arguing that the sentence was subjectively unreasonable.  The Tenth Circuit Court agreed, holding that the sentence was unreasonably short based on the statutory sentencing factors.  The district court, in its commendation of the defendant’s sobriety, gave too little value to deterrence, incapacitation, and respect for the law.

This appeal arose from two district court orders awarding millions of dollars of attorney’s fees against the man who filed a qui tam case that lasted over 20 years and involved more than 300 natural gas industry defendants.  The Tenth Circuit affirmed the award of attorney fees against the plaintiff under the fee-shifting provision of the False Claims Act, finding that the complaint was clearly frivolous and lacking in evidentiary support.  However, the court reversed the district court’s award of attorney fees related to an earlier appeal, explaining that the district court lacked jurisdiction to award appellate-related fees and noting that defendants failed to request the fees from the Tenth Circuit.

The plaintiff had signed an agreement with one of the defendants that contained the following provision regarding arbitration:  ”The arbitration shall be administered by JAMS and conducted in accordance with its Streamlined Arbitration Rules and Procedures, except as provided otherwise herein.”  The Tenth Circuit held that the parties to the agreement clearly and unmistakably intended to arbitrate arbitrability of the claims when they incorporated the JAMS Rules into the agreement.

After defendants’ convictions for failure to file tax returns were overturned, the district court denied their request for a refund of tax penalties and interest they had paid pursuant to a restitution order.  The court held that the order of acquittal eliminated the court’s jurisdiction to impose restitution, and the Steeds were entitled to a refund.  However, because the Steeds voluntarily entered into a private pay-to-stay contract with the Wasatch County Jail, they were not entitled to a refund of the costs of incarceration.  In addition, they were not entitled to a refund of supervision fees paid to Adult Probation and Parole, as the Steeds actually received the State’s supervision services—a result the court characterized as “troubling at an intuitive level.”

Uintah County sold property at a tax sale without providing the required notice of the sale to the holder of mineral rights on the property.  The mineral interest owner filed suit challenging the validity of the tax sale 13 years later, and the new owners of the property raised a four-year statute of limitations defense under Utah Code § 78B-2-206.  The Court held that the statute of limitations did not apply because the sale was conducted in violation of the mineral right owner’s due process rights, and the tax title was void to the extent it purported to convey the mineral rights on the property.

The Utah Supreme Court answered the question left open in Federal National Mortgage Association v. Sundquist, as to the appropriate remedy for a violation of Utah Code § 57-1-21, which requires a trustee of a nonjudicial foreclosure sale to maintain an office within the state of Utah.  In doing so, the Court distinguished between void, voidable, and valid trustee’s deeds.  Because the defendants had not presented any evidence the trustee’s deeds violated public policy, the district court erred in holding that it was void.  And, because the defendants had not shown that they suffered prejudice as a result of Recon Trust’s failure to have an in-state office, the trustee’s deed was valid, not voidable.

In a dispute over election results, the court held that Utah Code § 20A-4-403(2)(a)(ii) unconstitutionally extended the Court’s original jurisdiction, because the Legislature cannot alter the Court’s original jurisdiction by statute.

This appeal arose out of a dispute over the proceeds of a life insurance policy.  Before his death, the policy owner disinherited and divorced his spouse, but he failed to change the beneficiary designation.  The Supreme Court held that, in the absence of express terms that reference divorce in a life insurance policy, there is a statutory presumption that a beneficiary designation of a former spouse is revoked upon divorce.  The presumption may be rebutted by the express incorporation of language from Utah Code § 30-3-5(1)(e) in the divorce decree.

Trial counsel’s failure to provide the defendant a meaningful opportunity to participate in the in-chambers voir dire of potential jurors, either by being physically present or through discussion after, constituted deficient performance.  Without deciding whether voir dire is, as a general matter, a critical stage of trial at which a defendant has a right to be present at all times, the court held that the in-chambers voir dire in this case was sufficiently important that the defendant had a right to participate.

Thornton appealed a district court’s decision basing the length of Thornton’s sentence, in part, on the treatment and vocational services he would receive in jail.  The Tenth Circuit held that the district court erred by improperly relying on the availability of in-custody rehabilitation as a justification for the denial of a downward variance, in violation of clearly established precedent forbidding judges from using imprisonment as a means to promote correction or rehabilitation.

In this child abuse conviction, the court held that it was error to allow a video recording of a Children’s Justice Center interview of the victim into the jury room during deliberations, reasoning that the recording was testimonial in nature.  The court determined, however, that the error was harmless as the jury did not appear to give overemphasis to the interviews.

The court held that denial of counsel to the indigent father in this appeal from a parental-rights termination order violated the father’s federal due process rights.  The father did not preserve the constitutional argument for appeal, but the court found that the exceptional circumstances exception to the preservation rule applied in the narrow circumstances of this case.

In this privately-initiated parental termination proceeding, the mother had requested appointed counsel.  The court held that Utah Code § 78A-6-1111(2), which prohibits the appointment of counsel in private proceedings, was not facially unconstitutional, but agreed that the district court erred by relying on the statute to deny the mother’s request for court-appointed counsel, rather than considering the mother’s due process rights as set forth in Lassiter v. Department of Social Services, 452 U.S. 18, 27-32 (1981).

New York Ave. LLC entered into a contract to purchase land from the Harrisons.  New York Ave. exercised an option to extend the closing date of the contract by making monthly payments, and argued that the contract allowed these extension payments to continue indefinitely.  The court held that to allow New York Ave. to postpone the closing date indefinitely would defeat the purpose of the contract, and that, in the absence of a specified date, “the law implies that it shall be done within a reasonable time.”

After reconsidering prior precedent in light of intervening Supreme Court authority, the Tenth Circuit “departed from” Salco Corp. v. Gen. Motors Corp., 517 F.2d 567 (10th Cir. 1975), and held instead that to prove a conspiracy to monopolize under Section 2 of the Sherman Act, the plaintiff must identify the relevant market.

The court reversed the defendant’s conviction and remanded the case for a new trial, finding that the trial court’s admission into evidence of details of the defendant’s prior conviction for unemployment fraud was an abuse of discretion that prejudiced him.

Appealing convictions of aggravated burglary and aggravated assault, the defendant argued an order authorizing force in obtaining a DNA sample violated his right to be free of unreasonable searches and seizures.  Affirming, the Court of Appeals held the district court acted within its discretion when it authorized use of force in obtaining a buccal swab under Rule 16, where probable cause supported retrieval of the DNA.

In this appeal of an order remanding a class action, the Tenth Circuit broadly defined the term “in controversy” for the purposes of the Class Action Fairness Act, and held that federal jurisdiction existed when the defendant explains plausibly how a class may lawfully recover in excess of the statutory minimum under the plaintiff’s own allegations.

The defendant argued that the district court erred in revoking probation, in part because Adult Probation & Parole was not supervising him at the time of the violation.  The Court of Appeals affirmed, holding (a) inaction of the agency charged with supervision did not terminate probation, because the authority to terminate probation rests with the judiciary, and (b) the lower court did not err in finding the violation was willful, because the defendant could not have reasonably believed that he was no longer on probation under the facts of the case.

The Tenth Circuit held that the exercise of authority by SEC administrative law judges was unconstitutional in violation of the Appointment Clause.  Citing the ALJ’s significant discretion when presiding over enforcement hearings, the Court held that ALJs are inferior officers, rather than employees, and are thus required to be appointed.

Reversing and remanding a sentence, the Tenth Circuit held the district court committed plain error when it applied a discretionary downward variance for the purpose of making the defendant eligible for a rehabilitative drug program.

In a dispute over water and boundaries, the Utah Court of Appeals upheld an award of attorney fees as a sanction for bad faith in instigating the litigation without an honest belief in its merits.  The court held that a prevailing party under the bad faith litigation statute is able to recover its fees incurred at the appellate level to defend its award of fees in the district court, as well as fees incurred in defense of the original claim.

Extending a prior decision, the Tenth Circuit concluded that a defendant may knowingly and voluntarily waive his or her right to seek a reduction in sentence pursuant to 18 U.S.C.A. § 3582(c)(2) by entering into a plea agreement with the United States.

The court affirmed the district court’s holding that the University, as an arm of the State, had sovereign immunity for the plaintiffs’ claim under the Trafficking Victims Protection Reauthorization Act.  It rejected the plaintiffs’ argument that the Act itself waived the State’s sovereign immunity, and rejected their argument that the Act was enacted pursuant to the Thirteenth Amendment, such that sovereign immunity did not apply.

This appeal arose from a dispute over a real estate sales commission.  The defendant who lost at trial filed several Rule 60(b) motions seeking to vacate the judgment, including an argument that the court lacked jurisdiction because the principal broker of the real estate agency (which operated under an assumed name) was not a plaintiff, and therefore the plaintiffs lacked standing to sue for the commission.  The court rejected these arguments, holding that the plaintiffs had traditional standing to sue, and that their lack of legal capacity to sue under the Assumed Name statute did not deprive the court of jurisdiction.

The Utah Supreme Court held that, under Utah R. Evid. 505, when the government invokes the confidential informant privilege, all charges for which that testimony is necessary must be dismissed.  The court abandoned a common-law multi-factor test governing the admission of testimony from a confidential informant.  The inquiry is limited to “whether an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case.”

The court affirmed the defendants’ felony convictions for child kidnapping and aggravated murder.  Among other things, the court abandoned the factors test described in prior case law and held that Utah R. Evid. 403’s balancing test is the standard that a district court should employ to assess the admissibility of allegedly gruesome photographs.

In an appeal from a denial of a motion seeking relief from court order under Utah Rules of Civil Procedure 60(b), the Utah Supreme Court held that Rule 60(b) motions must be filed under their appropriate headings.  Specifically, Rule 60(b)(6) is not a catch-all when the grounds for setting aside the judgment are covered under 60(b)(1)-(5).  The court affirmed the denial of the motion.

This is the second appeal from the district court’s order of contempt issued against the defendants based on their failure to comply with an order requiring them to deposit all rents collected with the court.  In this appeal, defendants sought, among other things, to challenge the validity of the underlying district court order.  The court of appeals agreed with the district court that the collateral bar doctrine precludes defendants from waiting until after they violated the order to challenge its validity.  In doing so, the court made clear that the collateral bar doctrine is part of Utah jurisprudence.

The Supreme Court analyzed whether a parolee could assert a Fifth Amendment challenge to the revocation of his parole based upon his participation in a sex offender treatment program that required the disclosure of past charged or uncharged sex offenses.  Reversing the district court, the Supreme Court held that genuine issues of material fact precluded summary judgment in favor of the State on the Fifth Amendment claim.  Among other things, the Supreme Court recognized that “a threat to revoke a defendant’s parole constitutes compulsion for purposes of the Fifth Amendment.”

In a suit by landowners against a board of county commissioners, the landowners alleged that their due process rights had been violated, as they had been required to rezone their property prior to the adoption of the regulation. The 10th Circuit held that a board of commissioners is not required to hold public hearings prior to adopting zoning regulations so there was no procedural due process violation, and the behavior of the board was not sufficient to shock the conscience, and thus there was no substantive due process violation.

The Utah Supreme Court reaffirmed that in order to qualify for certification under Rule 54(b), a decision must constitute a “judgment as to one or more but fewer than all of the claims or parties” at issue in the case.  Because the district court’s order granting partial summary judgment in favor of the defendant did not finally dispose of any claim and did not finally adjudicate the interests of a party, the court held that Rule 54(b) certification was improper.  It accordingly dismissed the appeal for lack of jurisdiction.

A group of unsuccessful voter registration applicants brought suit against the state of Kansas, alleging that the state’s law requiring documentary proof of citizenship was preempted by the National Voter Registration Act (NVRA).  The Tenth Circuit agreed, holding that the NVRA’s attestation requirement established the presumptive minimum amount of information that a state needed to carry out its eligibility-assessment and registration duties.  In order to rebut this presumption and require documentary proof of citizenship, the state must make a factual showing that the attestation requirement is insufficient for these purposes.  Kansas failed to make this showing, and thus the NVRA preempted the state law.

This appeal involved a post-judgment motion to modify the 1910 Morse Decree, the final decree that adjudicated the right to use the waters of Little Cottonwood Creek.  The district court denied the post-judgment motion to modify, holding it did not have authority to reopen the hundred-year-old case to modify the final judgment.  The Utah Supreme Court affirmed, holding that the district court did not have common law authority to modify the Morse Decree through a post-judgment motion, and the Morse Decree itself did not authorize the motion.

The district court granted a motion to suppress evidence obtained while a warrant application remained pending.  The Court of Appeals reversed based upon the inevitable discovery doctrine and a four-factor test articulated by the Tenth Circuit.  Reversing the Court of Appeals, the Supreme Court held that the City failed to carry its burden of showing, by a preponderance of the evidence, that evidence would have been inevitably discovered in the absence of a warrant.  In doing so, the Supreme Court declined to apply the Tenth Circuit’s four-factor test.

After taking his ex-girlfriend’s purse, the defendant fled the scene.  His ex-girlfriend dove into his vehicle’s passenger window and climbed in while the defendant continued to drive.  The defendant was subsequently convicted of aggravated robbery based upon the use of the car as a deadly weapon.  On appeal, the Supreme Court held that a defendant may be convicted of aggravated robbery for using an object in a manner capable of causing serious bodily injury or death, even if the object is not ordinarily considered a weapon.

The Tenth Circuit held that the testimony of a Rule 30(b)(6) witness is merely an evidentiary admission, rather than a judicial admission.  The plaintiff challenged the district court’s refusal to instruct the jury that it was required to reject the trial testimony of the defendant’s former CEO because that testimony was inconsistent with his deposition testimony under Rule 30(b)(6).  The court rejected this argument, as the proposed jury instruction was not an accurate statement with respect to the “binding” nature of 30(b)(6) deposition testimony.

An individual, acting as personal representative and sole heir of her deceased husband, brought an action against herself for negligently causing her husband’s death.  The Utah Supreme Court held that the wrongful death and survival action statutes unambiguously allow a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.

The Executive Director of the Utah Department of Environmental Quality dismissed a request for agency action.  Rather than addressing alleged deficiencies in the Executive Director’s final order in their opening brief, the petitioners instead challenged underlying steps in the agency process.  The court struck the portions of the petitioners’ reply brief in which they, for the first time, addressed the Executive Director’s final order.  The petitioners’ failure to challenge the appropriate decision in their principal brief led the court to dismiss the appeal on the basis that the petitioners had not met their burden of persuasion.

Prior to this case, a party could receive a preliminary injunction by showing that the case presents a serious and important question, if a strong showing is made that the other elements of the preliminary injunction test are met.  In response to a Supreme Court decision, the court held that a showing of likelihood of success is always required, and the relaxed “serious question” test is no longer permissible.

Appealing the grant of a civil stalking injunction, the defendant argued the district court erred in considering an incident involving the defendant brandishing a gun against a non-party with connections to the plaintiff.  Affirming, the Court of Appeals held that the statutory grounds for issuing a civil stalking injunction may include a threat against a business associate, even if the victim was not physically present at the time of the incident.

The Court of Appeals rejected defendant’s argument that exhibits submitted by an opposing party in the context of Rule 60(b) must be accompanied by a sworn affidavit. At the same time, however, the Court of Appeals reiterated that the district court could consider evidence only if the evidence had been properly authenticated under Utah Rule of Evidence 901 and qualified for a hearsay exception.

In an appeal from convictions for murder and obstruction of justice, defendant argued the lower court erred in excluding portions of a police interview in which defendant stated he fought with victim based on victim’s statements about an affair with his brother. Affirming, the Court of Appeals held, as a matter of first impression, that Rule of Evidence 106 permits admission of hearsay statements that do not otherwise qualify for exception to the hearsay rule, so long as the hearsay statement satisfies Rule 106’s fairness standard.

In this consolidated case, the Utah Supreme Court held that an enforceable forum selection clause does not preclude application of Utah’s borrowing statute. The forum selection clause required that the case be governed by all of Utah’s law, both procedural and substantive. The Court rejected the plaintiff’s argument that the borrowing statute applies only when the claim is not actionable in the foreign jurisdiction solely because of the lapse of time.

The court overruled Panos v. Smith’s Food & Drug Centers, Inc., 913 P.2d 363 (Utah Ct. App. 1996), and held that a dismissal for failure to prosecute under Utah R. Civ. P. 41(b) is with prejudice unless the judge specifies otherwise in the order.

The court concluded that the claims procedure provided in the Unclaimed Property Act, Utah Code §§ 67-4a-101 et seq., is the exclusive method for a judgment creditor to obtain a judgment debtor’s unclaimed property that is held by the State.

A lawful permanent resident appealed an order of removal based upon his conviction for failure to stop at the command of a police officer. Extending the Supreme Court’s decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015), the Tenth Circuit vacated the order of removal and held that the Immigration and Nationality Act’s residual definition of “crime of violence” was unconstitutionally vague.

The Tenth Circuit dismissed this appeal for lack of jurisdiction. The defendants’ motion for reconsideration of the denial of their motion to dismiss, which was filed eight months after that decision, did not toll the time for appeal of that decision. By identifying the denial of the motion to dismiss as the order being appealed, the defendants did not sufficiently express an intent to appeal the denial of the motion for reconsideration. The appeal was therefore untimely and the court lacked jurisdiction.

In this appeal from the denial of an ex-husband’s motion to dismiss a protective order that his ex-wife had obtained against him, the Utah Court of Appeals considered whether the ex-husband had properly preserved his arguments for appeal. The ex-husband had failed to object to the commissioner’s recommendation that the protective order remain in place. The court agreed with the ex-husband that the procedure for filing an objection to a commissioner’s order outlined in Utah R. Civ. P. 108 is optional. The husband accordingly was not required to file an objection in order to preserve his right to appeal. But, the failure to file an objection limited the ex-husband’s ability to challenge the factual basis of the commissioner’s decision on appeal.

In this appeal from the denial of an ex-husband’s motion to dismiss a protective order that his ex-wife had obtained against him, the Utah Court of Appeals considered whether the ex-husband had properly preserved his arguments for appeal.  The ex-husband had failed to object to the commissioner’s recommendation that the protective order remain in place.  The court agreed with the ex-husband that the procedure for filing an objection to a commissioner’s order outlined in Utah R. Civ. P. 108 is optional.  The husband accordingly was not required to file an objection in order to preserve his right to appeal.  But, the failure to file an objection limited the ex-husband’s ability to challenge the factual basis of the commissioner’s decision on appeal.

This suit involved a dispute over an assignment of the right to receive rental payments. Wolf Mountain, as payment for attorney fees, had assigned its rights to receive rent from a property in Summit County to Kirton McConkie. The property was being leased by ASC Utah. In a separate suit, ASC Utah obtained a $60 million judgment against Wolf Mountain, which ASC Utah then used to set off its rent payments under the lease. The Court of Appeals held that even though Kirton McConkie’s interest was assigned prior to the setoff, the assignment did not sever the right to receive rent from the other obligations under the lease, so Kirton McConkie’s assignment was subject to ASC Utah’s right to set off the rent.

The court rejected a constitutional challenge and reaffirmed its case law holding that Utah’s Plea Withdrawal Statute, Utah Code § 77-13-6, procedurally cuts off a defendant’s right to a direct appeal post-sentencing. The court explained that a defendant may pursue claims challenging an invalid plea collaterally through post- conviction proceedings.

This appeal arose from the district court’s denial of a petition under admiralty jurisdiction to limit a boat rental company’s liability for a recreational boating accident under the Limitation of Liability Act, 46 U.S.C. §§ 30501-12. The Tenth Circuit held that the boat rental company owed no duty to its customers to monitor and report weather forecasts, or to monitor the weather and make the decision for its customers as to whether it is advisable to venture onto the lake.

UDOT’s condemnation of 65 acres of land in order to resolve litigation by private litigants challenging the Legacy Parkway environmental assessment was upheld as fulfilling a state transportation purpose, but because the land was being banked for “future mitigation credits” for non-Legacy projects, the court held that the trial court should have considered the enhancive value attributable to the completion of the Legacy Highway in determining just compensation for the taking. The court also addressed the effect of an appellee’s failure to brief an issue, holding that while failure to brief does not result in a technical default, it nevertheless may be treated as an acknowledgement of the correctness of the appellant’s arguments.

Defendant appealed the district court’s decision to revoke his probation. At issue was whether the appeal was moot, as defendant had already served his sentence. The Court of Appeals held that the presumption in criminal convictions of collateral legal consequences, which allows an otherwise moot case to be appealed, does not apply to the revocation of probation. Defendant must demonstrate actual and adverse collateral legal consequences to survive mootness.

Defense counsel argued that his client was denied his Sixth Amendment right to effective assistance of counsel, because counsel was not allowed to review classified documents prior to his client’s sentencing. The Tenth Circuit held that where defense counsel’s conduct has only been partially restricted by the trial court there is no presumptive Sixth Amendment violation. Because there was no presumption, the burden was on counsel to demonstrate the prejudice caused by his inability to review the classified documents.

The court affirmed the dismissal of this lawsuit against a resident of Japan for lack of general personal jurisdiction. The court held that the defendant’s pro se response to the complaint was not a responsive pleading, and therefore the defendant did not waive his objection to personal jurisdiction by failing to raise it in the response. The court further held that, although the defendant owned property in Utah, he was domiciled in Japan and the property was unrelated to the plaintiff’s cause of action, so the defendant lacked sufficient contacts with the State of Utah to support the exercise of general personal jurisdiction over him.

The Tenth Circuit rejected the defense of qualified immunity in this case brought under 42 U.S.C. § 1983, involving the search of a vehicle following a traffic stop. The officers’ reliance on the fact the plaintiff was from Aurora, Colorado, a “drug source” and “home to medicinal marijuana dispensaries,” was impermissible.

In an action to decide whether a trust deed survived when the trustee accepted title to the subject property in lieu of foreclosure, the Utah Court of Appeals held that once the trust deed has been released, the ancillary obligations of the trust deed cannot be enforced, as the trust deed ceases to exist. The trust deed cannot survive without the debt obligations, even though other obligations, such as the duty to defend against other interests, have not been met.

In this case, the Utah Supreme Court adopted a cause of action for parents’ right of filial consortium due to tortious injury to their minor child. The cause of action is derivative of the child’s cause of action. In order to recover under such a claim, the injury to the child must meet the requirements of Utah Code  § 30-2-11(5).

The plaintiffs’ suit against Provo City was timely when initially filed, but the complaint was dismissed without prejudice because the plaintiffs failed to submit an “undertaking” or bond as required by statute. By the time the plaintiffs refiled, it was beyond the one-year filing requirement of the Governmental Immunity Act. The Court held that Utah Code  § 78B-2-111 (the Savings Statute) could not sustain the timeliness of a re-filed suit against a governmental entity, because the Governmental Immunity Act speaks comprehensively to the timing of such a suit in a manner precluding operation of the Savings Statute.

In this appeal of a paternity dispute, the Supreme Court held the district court lacked jurisdiction to determine paternity under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), where the child lived in Utah for eight days after being born within the state, relocated to Illinois with the adoptive parents before the filing of the petition, the adoptive parents resided in Illinois for longer than five years, neither of the biological parents lived in Utah, and an Illinois court was capable of exercising jurisdiction under the uniform act.-

This appeal arose from a trademark dispute over whether a manufacturer’s use of colors in its product packaging is a protected mark under section 43(a) of the Lanham Act. The Tenth Circuit held that the use of color in product packaging can be inherently distinctive only if specific colors are used in combination with a well-defined shape, pattern, or other distinctive design.

Evaluating whether notice of removal was timely, the Tenth Circuit held, as a matter of first impression, that a pre-suit communication referencing the amount of purported damages does not trigger the notice period for seeking removal from state to federal court, unless the communication is clearly incorporated into the complaint. At the same time, however, the Tenth Circuit held a state civil cover sheet indicating damages exceeded $100,000 triggered the time for filing a notice of removal.

A biological father appealed the denial of his motion to intervene in the adoption proceedings for his baby daughter. The Utah Supreme Court held that the pre-birth notice that the mother intended to place the baby up for adoption was inadequate because it provided that the father may lose certain rights rather than informing him that certain rights, including the right to contest the adoption, would be irrevocably lost.

While the appeal was pending in this case, the Supreme Court revised the common law requirements of intentional interference with economic relations in the case of Eldridge v. Johndrow,2015 UT 21. The new standard is that” [i]n the absence of any improper means, an improper purpose is not grounds for tortuous interference liability.” Although the jury instruction incorporating the improper purpose standard was correct when given, this case was pending on appeal when Eldridge was decided. The Supreme Court applied Eldridge retroactively on the basis that “parties to other cases pending on appeal are also entitled to the benefit of such a change in the law.” Id. ¶ 6 (emphasis added).

As a matter of first impression, the Utah Supreme Court held article I, section 10 of the Utah Constitution guaranteed a party the right to a jury in a de novo trial at the district court on appeal from a small claims judgment, so long as the party seeking the jury makes a timely demand under Utah Rule of Civil Procedure 38(b).

In this commercial real estate dispute, the Court of Appeals held the district court did not abuse its discretion when it excluded an expert as a Rule 37 sanction for willful non-compliance with a prior scheduling order and Rule 26’s expert designation requirements. The Court of Appeals then held, as a matter of first impression, that the district court correctly concluded expert testimony was necessary for the calculation of square footage of commercial real property.

On a certified question from the Tenth Circuit, the Utah Supreme Court clarified the measure of damages for breach of an oil and gas lease. The Court held expectation damages for breach of an oil or gas lease should be treated the same as any other lease. The Court also concluded that trial courts may, in their discretion, allow parties to submit post-breach evidence for the purpose of establishing and measuring expectation damages arising out of the breach of an oil and gas lease.

The board of an owners’ association for an industrial park sued some of its members for breach of the governing CC&Rs after they built a cell phone tower on their lot, despite having been denied permission from the board to do so. The district court applied a presumption that restrictive covenants are not favored in the law and are strictly construed in favor of the free and unrestricted use of property, and held that the association did not have the right to limit the number of cell phone towers in the park. Reversing, the Court held that the district court erred in strictly construing the CC&Rs rather than applying neutral principles of contract construction.

This case serves as a warning and reminder to litigants about the effect of the two dismissal rule under Utah R. Civ. P. 41(a). Yknot voluntarily dismissed claims that it filed against Stellia twice - once in federal district court and the second time in state court. Stellia then sued Yknot in a new state court action, and Yknot attempted to assert as counterclaims the claims it had previously dismissed. The Court of Appeals affirmed dismissal of the counterclaims based on Rule 41(a), which provides that “a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court . . . an action based on or including the same claim.”

This appeal centered on a notice of claim provision contained in the Governmental Immunity Act of Utah. The district court held that “it is not unreasonable that [the plaintiff] might take a month or more to identify the entity responsible for maintaining the parking structure,” and highlighted the importance of reasonable diligence in searching out the parties. The Utah Court of Appeals affirmed, stating that “the statute affords some limited latitude where the identity of the responsible party as a governmental entity is in question.” The claimant must know 1) that they had a claim against the governmental entity and 2) the identity of the governmental entity.

In this divorce case, the Court of Appeals reversed the temporary support order and alimony award because the district court failed to make specific, detailed findings regarding expenses. The Court also held a property division order which set no minimum monthly payment, contained a “meager” interest rate, and allowed the judgment creditor to wait a significant period before beginning substantive payments, was inequitably structured.

After observing a probationer step into the defendant’s car in violation of her 11:00 p.m. curfew, two police officers called the probation officer. The probation officer asked the officers to approach the probationer to “find out what’s going on,” which they did by pulling over the defendant. Incident to the officer’s investigation of the probationer’s probation violation, the officers discovered the defendant had drug paraphernalia on her person. The Utah Court of Appeals held (1) “police officers may investigate, search, and seize probationers under the direction of probation officers,” and (2) “a driver may be lawfully detained incident to a traffic stop initiated for the purpose of investigating a passenger’s parole or probation violation.”

In this appeal from the denial of a petition for post-conviction relief, the court held that a sexual assault nurse examiner was a member of the prosecution team for Brady purposes because she acted at the request of law enforcement in the pre-arrest investigation of a crime when she examined the victim.
The court considered whether the Anti-Injunction Act prohibits enjoining parties from pursuing a state-court action challenging state officials’ authority to pursue a federal quiet-title action. The court limited the statutory exception for cases where an injunction is “necessary in aid of [the federal district court’s] jurisdiction” to cases where both the federal and state are in rem or quasi in rem. Because the parties in the state case sought an adjudication of state officials’ legal authority, as opposed to an adjudication of property interests, the exception did not apply.

The defendant was sentenced to 121 months in prison and three years of supervised release for receipt and distribution of child pornography. The conditions of his supervised release were later modified to require that he submit to a sexual history polygraph answering whether he had committed sexual crimes for which he was never charged. The defendant refused this condition, subjecting him to potential revocation of his supervised release. The Tenth Circuit reversed the district court’s order compelling the defendant to submit to the sexual history polygraph, holding that he faced real danger of self-incrimination if he answered the polygraph questions, and that the government had compelled him to be a witness against himself in violation of his Fifth Amendment rights.

In this criminal case, the defendant appealed a denial of a motion to set aside an order of restitution entered by the Utah Board of Pardons and Parole. The Court of Appeals held that Utah Code § 77-27-6(4) does not give the trial court jurisdiction to review a Board of Pardons’ restitution order.
Juvenile court concluded previous guardian lacked standing to request reunification. The Court of Appeals disagreed, concluding that a permanent guardian possesses standing to seek reunification services under Utah Code § 78A-6-312.

After first assisting USA Power in obtaining water rights for its bid for a contract to build a power plant, a lawyer later assisted PacifiCorp in obtaining different water rights for its own bid, and PacifiCorp was ultimately awarded the contract. USA Power sued the lawyer for malpractice, alleging she had breached her fiduciary duties and damaged USA Power by helping PacifiCorp obtain water rights that were critical to PacifiCorp’s proposal winning out over USA Power’s. The court applied a high standard of causation, requiring USA Power to not only show that the lawyer disadvantaged it in the bidding process, but also that it would have benefitted in the specific way it claimed. This included requiring proof that, had the lawyer declined to assist PacifiCorp, PacifiCorp would either not have hired another lawyer or that another reasonably skilled and diligent lawyer would not have been able to duplicate the lawyer’s work for in locating water.

Upon moving to Oklahoma ten years after a conviction for sexual assault in Texas, the plaintiff became subject to the Oklahoma Sex Offender Registration Act, which requires regular reporting and limited the places that the plaintiff can live and be.  Applying the intent-effects test, the Tenth Circuit held that the plaintiff had not shown the “clearest of proof” of a punitive effect of the restrictions and obligations, rejecting a claim that registration constituted retroactive punishment in violation of the United States Constitution’s ex post facto clause.

The Injured Workers Association of Utah and several of its member attorneys challenged the constitutionality of the statute delegating to the Labor Commission authority to regulate fees awarded out of a compensation award to attorneys representing injured workers in a worker’s compensation case and the sliding-scale fee schedule and cap adopted by the Labor Commission under that statute. The Utah Supreme Court held that both the statute and schedule are unconstitutional because the regulation of attorney fees falls within the power to regulate the practice of law, which belongs exclusively to the Utah Supreme Court and cannot be delegated.

Defendant appealed his conviction for discharging a firearm causing serious bodily injury. The victim of the gunshot wound testified at a preliminary hearing but left the country prior to trial. The Court of Appeals held the admission of victim’s preliminary hearing testimony at trial did not result in a violation of the Confrontation Clause because defendant failed to show that the structure of the preliminary hearing limited his opportunity to cross-examine the victim. The Court of Appeals acknowledged that a preliminary hearing may not afford an adequate opportunity for cross-examination in every case.

The Court of Appeals held that it was clear error for the trial court to determine that the parties’ negotiations created an enforceable settlement agreement based on a signed term sheet, where a recording of the meeting evidenced that the parties understood a settlement would not be entered into until the agreement was put into writing at some point in the future.

The Utah Court of Appeals held that Salt Lake City did not have the necessary notice to be liable for a pothole in a residential city-owned street that the plaintiff tripped over. Despite evidence that the pothole had existed for four months, City street sweepers had passed the pothole five times, and City sanitation workers collected garbage sixteen times before the plaintiff’s accident, the Court found that the City employees and the City did not have actual or constructive notice of the pothole. Specifically, the Court held that an employee’s notice will not be imputed to the City “without evidence that an employee had actual or constructive notice of the pothole.” To impute constructive notice on the City’s employees and therefore the City, the plaintiff had to do more than merely demonstrate that the pothole existed long enough that the City should have discovered it.-

The plaintiff was represented by a lawyer who worked for two different law firms while the case was pending. After the lawyer switched firms, the first firm asserted a lien on a portion of the settlement funds by filing a notice of lien. However, the firm never moved to intervene in the action. After the case settled, the firm objected to dismissal until its lien issues were resolved. The court entertained motions from both firms and the lawyer, and ultimately awarded a portion of the funds to the firm. The Court of Appeals reversed, concluding that the district court lacked jurisdiction to make orders with regard to these post-judgment motions brought by non-parties in the underlying case.

In this boundary dispute case, the Utah Supreme Court held that Utah’s boundary by acquiescence doctrine does not require a claimant to prove occupancy on both sides of a visible line, so the non-claimant’s occupancy is “immaterial to the occupation element.“ The doctrine requires a claimant to show: “(1) a visible line marked by monuments, fences, buildings, or natural features treated as a boundary; (2) the claimant’s occupation of his or her property up to the visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary; (3) mutual acquiescence in the line as a boundary by adjoining landowners; (4) for a period of at least 20 years.”

Tenant successfully sued defendants for CO poisoning from malfunctioning furnace, and was awarded $1.95 MM in compensatory damages, and $22.5 MM in punitive damages. The court of appeals remitted punitive damages from $22.5 MM to $1.95 MM, finding the reduced amount of punitive damages was “reasonable and proportionate” to the harm suffered, and that a higher amount would have been “greater than reasonably necessary to punish and deter.”
The parties’ settlement agreement provided for division of the husband’s 401(k) plan based on the formula articulated in Woodward v. Woodward, 656 P.2d 431 (Utah 1982). Woodward, however, involved a defined benefit plan, not a 401(k) defined contribution plan, and the formula could not be applied without modification. The court held that the parties’ agreement to apply the Woodward formula to this 401(k) plan yielded an inequitable result and remanded for equitable apportionment of the account.
This case involves a challenge to Utah’s bigamy statute. The Utah County Attorney appealed the district court’s order granting summary judgment in favor of the plaintiffs. The court held that because the Utah County Attorney’s Office had closed its file on the plaintiffs and adopted a policy under which it would only pursue bigamy charges against those who induce a partner to marry through misrepresentation or are suspected of committing a collateral crime such as fraud or abuse, the case was moot.
Plaintiff suffered severe burns after laser hair removal treatment. She timely brought claims against the technician operating the machine, but did not bring claims against the manufacturer until 10 months after the statute of limitations had run. The court affirmed summary judgment in favor of the manufacturer because, while plaintiff “was ignorant of the existence of her potential cause of action against [the manufacturer] until hearing from her expert, it is clear that a personal injury caused by the operation of a machine will routinely entail possible liability on the part of both the operator and the manufacturer of the machine.”

A state employee claimed her former employer violated her right to free political association under the First Amendment. Among other things, the court held the McDonnell Douglas burden-shifting framework does not apply to First Amendment retaliation claims.

The plaintiffs in the wage dispute underlying this appeal are commercial truck drivers who claimed that their employer failed to pay them overtime wages under the Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage Order (Wage Order). The court held that drivers who transported materials on an intra-state route that was the final leg of an interstate journey were moving goods in interstate commerce, subject to the power of the Secretary of Transportation, and thus were exempt from the FLSA’s overtime provisions.
RADC was the successor coholder of the note that plaintiff Utah First had sued on. RADC had not been named as a plaintiff in the original complaint and was not added as a plaintiff until after the three-month statute of limitations had run. The court held that because the case involved a single note, the original complaint had provided the defendant-borrowers with sufficient notice to satisfy the rationale of Rule 15(c)’s relation-back provision.
Plaintiff pursued § 1983 claims for malicious prosecution, excessive force, and interference with the right of familial association. Discussing the malicious prosecution claim, the Tenth Circuit held dismissal of an underlying case on speedy trial grounds after five years of delay was not a favorable termination sufficient to support a claim for malicious prosecution, where the circumstances surrounding dismissal were not indicative of the party’s innocence. Separately, the Tenth Circuit affirmed summary judgment on the familial association claim, holding that no constitutional violation occurred, where officers imposed a blanket restriction on visitors, and plaintiff failed to present sufficient evidence that officers intended to interfere with a protected relationship.
UDOT did not respond to the plaintiff’s notice of claim within 60 days, which is deemed to be an automatic denial under the Utah Governmental Immunity Act. However, UDOT sent the plaintiff an actual denial letter several months later. The plaintiff filed suit within one year of the letter, but not within one year of the 60 day automatic denial. The court held that the one year limitations period to file a claim expired one year after the 60 day automatic denial, and not one year after the date of the later denial letter.
On appeal from the denial of a motion to suppress, defendant argued that a “No Trespassing” sign effectively revoked the officer’s implied license to approach the residence for a knock and talk. Evaluating the overall context and the message that would have been communicated to an objective officer or member of the public, the court held the mere presence of a “No Trespassing” sign was not sufficient to convey to an officer that he or she lacked a license to approach and knock on the front door of a residence.
Massachusetts company that recruited Texas employee of Utah company lacked sufficient contacts with Utah to support specific or general jurisdiction here. The court scaled back the “effects” test of Pohl, Inc. of America v. Webelhuth, 2008 UT 889, 201 P.3d 944, to require that the effects be broader than just impact on the plaintiff who resides here, and that instead they create a “substantial connection” with the state. The court also rejected a general “doing business” argument that was based primarily on an Internet presence here.
Employee of subcontractor was hurt when scaffolding fell on him. He filed civil claims against the general contractor. The general contractor asserted Workers’ Compensation Act immunity pursuant to the “eligible employer” statute, which requires that the contractor “secure[] the payment of workers’ compensation benefits.” The court held that a contractor “secures the payment of workers’ compensation benefits” and is immune if it provides its subcontractors and their employees with a qualifying insurance policy, regardless of who actually pays the workers’ compensation benefits.

This lengthy decision arose out of various tort claims brought against the UEP Trust. Among other things, the Court (a) held a trust could be liable for the acts of a trustee acting within the scope of the trustee’s responsibility under the Uniform Trust Act, and (b) endorsed the doctrine of reverse-veil piercing. In a notable departure from a prior case law, the Court also concluded that an employer may be liable under a theory of respondeat superior even when the agent’s conduct occurs away from the work space or outside a work shift under a standard articulated in the Restatement (Third) of Agency § 7.07(2).

The plaintiff in this negligence action sued a four-year-old child she was babysitting for throwing a toy at her and striking her in the eye. The court followed the Restatement (Third) of Torts and held that children under the age of five may not be held liable for negligence. Accordingly, the court reversed the district court’s order denying summary judgment in favor of the four-year old defendant, and remanded with instructions to grant summary judgment.
Rocky Mountain Power did not wish to sell land the City needed to complete its Westside Railroad Realignment Project, but agreed to transfer the land to the City if the City would make alternative property available. The City condemned Evans’ land to satisfy its obligations under the agreement. The court held that the exchange agreement did not satisfy the statutory requirements that the condemnor be in charge of the public use to which the property will be put and to oversee construction of the public use, and ordered the property returned to Evans.
The court affirmed the lower court’s decision that arguments in a reply brief were proper rebuttal because they addressed a subject matter raised in the opposition, even though the reply did not rebut any specific arguments. The court declined to decide whether Utah recognizes a cause of action for anticipatory nuisance because the plaintiff’s complaint did not put the defendant on notice that such a claim was intended.
Although acknowledging that the Utah Supreme Court has never recognized a reverse-piercing claim, the court predicted that Utah courts would apply reverse veil-piercing against corporate defendants to hold them liable as alter egos of the defendant, who failed to pay a consent judgment under which he agreed to disgorge profits from a securities fraud scheme.
Plaintiff attempted to serve two supplemental disclosures addressing damages and naming witnesses over a year after the discovery cutoff. The district court struck both disclosures. Affirming, the Court of Appeals held Utah R. Civ. P. 26(a) and 37(f) govern the sanction when a party fails to timely make or supplement an initial disclosure, as opposed to Rule 16.
The Utah Court of Appeals affirmed the district court’s order quashing a writ of garnishment against the Utah Unclaimed Property Division to obtain property held by the division but purportedly belonging to the debtor, holding that it was barred by the Utah Governmental Immunity Act. The court went on to explain that the proper way for appellant to access the unclaimed property was to file an administrative claim with the division.
In the underlying case a patient sued her plastic surgeon for publication of private facts and other claims when pre- and post-operative photographs of her were aired on the evening news. The Utah Supreme Court adopted a new element from section 652D(b) of the Restatement (Second) of Torts, which requires a plaintiff suing for publication of private facts to show that the matter publicized is not of legitimate concern to the public. This element is normally a jury question if reasonable minds can differ concerning the newsworthiness of the information. The court affirmed the Utah Court of Appeals’ decision reversing summary judgment that was granted to the plastic surgeon, concluding that there were disputed issues of fact over the public interest in viewing the photographs.
The Utah Supreme Court reaffirmed the implication of its prior decisions regarding how and when a party acquires title under the doctrine of boundary by acquiescence, and expressly held that the doctrine confers title by operation of law at the time the elements of the doctrine are satisfied. A judicial adjudication of a boundary by acquiescence does not grant title, but merely recognizes the title that has already vested.
Parallel to the parties’ divorce proceeding, husband sued wife and third parties for fraud, breach of fiduciary duty, and civil conspiracy. The district court granted defendants’ motion to dismiss and motion for summary judgment. The Utah Court of Appeals affirmed. The decision touches on fraud claims in post-divorce actions, the standard for pleading fraud with particularity, and the applicable statute of limitations. Of interesting note, husband argued wife owed a fiduciary duty, because she provided accounting services. The appellate court disagreed. Assuming without deciding whether a fiduciary relationship can arise in a marriage, the Court of Appeals applied the traditional test and held husband failed to state a claim for breach of fiduciary duty, where his Complaint only alleged wife provided accounting services.
The district court granted summary judgment in favor of defendant law firm in this malpractice action. Plaintiff attempted to oppose the motion by seeking additional time under Rule of Civil Procedure 56(d). Affirming, the Utah Court of Appeals held that the district court did not abuse its discretion in denying plaintiff’s request for time, where plaintiff failed to “explain what facts would likely be uncovered by further discovery” or discuss whether there had been adequate opportunities and a conscientious effort by the party for pursuing discovery.
In this employment dispute, the district court held that the plaintiff’s discharge was not unlawful because she was an at-will employee. The Court of Appeals reversed, holding (1) the company’s employee manuals created a triable issue of fact whether it “intended to be contractually bound by its repeated statements that no employee would be terminated for submitting a complaint or grievance,” and (2) the district court erred in holding the parol evidence barred the plaintiff’s efforts to rely on the employee manual as having created an implied-in-fact contract because the manual could be offered to show that the parties modified the at-will employment after the plaintiff signed her employment agreement.
In what appears to be a matter of first impression, the Court of Appeals held that an insurance company does not have standing to bring a subrogation action in its own name. Any such action must be brought in the name of its insured or its insured’s estate.
The Supreme Court confirmed an arbitration panel’s award of reasonable attorney’s fees to the prevailing party under the Utah Pattern of Unlawful Activity Act, even though the fee award was greater than the amount the party contracted to pay its attorneys. The Court held that the arbitration panel did not commit an obvious error in its calculation of reasonable fees because the UPUAA does not expressly limit a plaintiff’s reasonable attorney fees to those actually incurred.
The petitioner was convicted of assault based on testimony about phone records admitted at trial through the declaration of a dead detective. He appealed the conviction on the grounds of plain error and ineffective assistance of counsel, because his counsel initially objected that the testimony about the records was hearsay, but withdrew the objection when the judge told him it was not. The Utah Supreme Court held that defense counsel’s withdrawal of the objection and acquiescence with the trial court’s statement that the testimony was not hearsay was not invited error. Instead, it was merely a failure to preserve the objection, and remained subject to plain error review. Nonetheless, the court found that the defendant was not prejudiced by the error and affirmed the conviction because it concluded that the phone records would have been admitted at trial by other means if the hearsay objection had been sustained.
While driving with methamphetamine in his system, defendant collided with another vehicle, resulting in serious injuries to two adults and the death of their eighteen-month-old child. The State charged defendant with three second-degree felonies under Utah’s Measurable Amount Statute. At the district court and on appeal, defendant argued the statute violated his rights under uniform operations of law provision of the Utah Constitution. The Utah Court of Appeals held the Measurable Amount Statute was unconstitutional because there appeared to be no rational basis for treating individuals with a measurable amount of an illegal substance more harshly than individuals who drove under the influence of an incapacitating amount.
The Utah Court of Appeals affirmed the district court’s denial of a mistrial, holding that even though the prosecution committed constitutional error by commenting on the defendant’s silence, that error was harmless. In holding that there was error, the Court rejected the State’s argument that the prosecutor did not commit constitutional error because he merely commented on the defendant’s statements that he did not know what had happened, not the defendant’s actual silence. Applying two United States Supreme Court cases, the Court held that it was appropriate to analyze the prosecutor’s comments as if the defendant had remained silent because the defendant’s statements were “post-arrest statements about [his] involvement in the interrogation itself” as compared to statements about involvement in the crime. Under this analysis the prosecutor committed error by commenting on the defendant’s “silence.”
The Tenth Circuit affirmed the district court’s finding that a default judgment against the plaintiff was not dischargeable in bankruptcy because it fell within 11 U.S.C. § 523(a)(19), which renders debts nondischargeable when they arise in connection with a violation of state or federal securities law. In doing so, the Court rejected the plaintiff’s argument that it should extend the principle that default judgments generally are not given preclusive effect in bankruptcy to Section 523(a)(19). That section “sought to close [t]his loophole in the law’ and ‘hold accountable those who violate securities laws after a government unit or private suit results in a judgment or settlement against the wrongdoer.’”
The City appealed from the district court’s exclusion at trial of the victim’s preliminary hearing testimony. After the preliminary hearing, the court had received two letters purportedly written by the victim in which she stated that she wanted to withdraw her prior statements, had made false accusations, and wanted the charges dropped. On appeal, the Court of Appeals held that the district court abused its discretion in (1) relying solely on the differences between a preliminary hearing and trial to conclude the defendant did not have the same motive to cross examine the victim, and (2) holding that the intervening letters made the preliminary hearing testimony inadmissible without considering the factors set out in State v. Menzies, 889 P.2d 383 (Utah 1994).
A Saudi national was arrested and charged with rape. The Royal Consulate of Saudi Arabia posted $100.000 bail. Shortly after, the defendant was detained trying to cross the border into Tijuana, Mexico. The court ordered bail forfeited. The defendant was extradited to Utah and moved to set aside the forfeiture, arguing in part that the Consulate was entitled to notice as a surety. The Consulate appealed on the basis that it was a surety and was entitled to notice. The Supreme Court held the Consulate was not a surety for the purposes of Utah Code § 77-20-4(1)(b).
Utah Alunite Corp. and the School and Institutional Trust Lands Administration appealed the district court’s dismissal of their petition for judicial review from an order of the State Engineer on a different entity’s application to appropriate water. Utah Alunite and SITLA were not parties to the informal adjudication on the application and had not exhausted their administrative remedies. On appeal, the Court rejected Utah Alunite and SITLA’s argument that under Utah Code § 73-3-14, they need only be “persons aggrieved” to seek judicial review. That section further requires the person to comply with Utah’s Administrative Procedures Act, which limits the availability of judicial review to a “party aggrieved.” Thus, in order to obtain judicial review of an order of the State Engineer, the petitioner must not only be aggrieved by the order, but must also have been a party to the proceeding sought to be reviewed. Because neither Utah Alunite nor SITLA was a party to the proceedings before the State Engineer on the application they sought to have reviewed, the Court dismissed the appeal for lack of jurisdiction.
This decision affirming the district court’s grant of summary judgment to a physician in a wrongful death case discusses several hearsay exceptions, and illustrates the interplay between the hearsay rule and a plaintiff’s burden at the summary judgment stage. Among other things, the Utah Court of Appeals held a party seeking to create an issue of fact based on the absence of a record under Utah Rule of Evidence 803(7) must lay adequate foundation under Utah Rule of Evidence 803(6) as to actual record-keeping practices.
Defendant was charged with and convicted of aggravated assault, among other crimes, following a gruesome night of abuse the victim endured partly at defendant’s hands. The abuse ended with Defendant leaving victim at the side of a rural road in the cold with very little clothing. The jury was instructed as to the elements of aggravated assault, but during deliberations, the jury sent a note to the court asking whether leaving the victim at the road side constituted aggravated assault. The court referred the jury back to the instructions, and further directed “[i]t is for the jury to decide” whether leaving the victim at the roadside constituted aggravated assault. The jury convicted defendant of aggravated assault. Defendant appealed on the basis that the jury may have confused the court’s instruction that it was to decide whether leaving the victim at the roadside substituted the required elements of aggravated assault, thereby misstating the law. The Court of Appeals held that “it is reasonably possible that the jury interpreted the court’s response as a new instruction, despite the court’s apparent intent to simply refer the jury back to the earlier instructions (which would normally be prudent), and [] the new instruction had the potential to confuse the jury in a way that misstated the law,” and vacated and remanded the conviction.
Satellite companies brought constitutional challenges against a statute that created a tax credit favoring cable companies. Surveying constitutional jurisprudence, the Utah Supreme Court held the tax credit statute did not trigger strict scrutiny under the dormant Commerce Clause, where the statute did not discriminate on the basis of geographic connection, but instead on the basis of differing business models. In doing so, the Court rejected an argument that differences in “the economic footprint of competing models is sufficient” to trigger strict scrutiny.
Even though fulfillment of the provision depended on something outside the contracting party’s control, the Court held that a provision in a real estate purchase contract that required a plat to be recorded was unambiguously a mandatory covenant because the parties used explicitly mandatory language to characterize it, while using explicitly conditional language elsewhere in the agreement.
This appeal arises out of a Chapter 7 bankruptcy petition where the debtor’s ex-wife filed a proof of claim in the bankruptcy proceedings for a “domestic support obligation” in the amount of nearly $350,000. The Tenth Circuit held that a judgment creditor has standing to intervene in a debtor’s state-court divorce proceedings to seek a declaration that the divorce decree underlying the ex-wife’s proof of claim was obtained by fraud on the court.
The appellants filed a post-judgment motion to amend the district court’s findings and judgment under Utah R. Civ. P. 52 and 59, which the district court denied and concluded was, in substance, a disfavored post-judgment motion to reconsider. Appellants filed their notice of appeal within thirty days of that order. The Utah Court of Appeals treated the post-judgment motion as a properly filed motion that tolls the time for appeal under Utah R. App. P. 4(b) and held that it had jurisdiction to hear the case. The court noted that nothing in the record suggested that the appellants filed their motion in bad faith, or with knowledge that the district court would recast it as a motion to reconsider.
The district court excluded expert testimony proffered in support of a personal injury claim failed to meet the requirements of Rule 702, because it merely established a chronology between the accident and injury without sufficiently analyzing the causal relationship. While recognizing the foundation was “somewhat thin,” the Court of Appeals held the lower court exceeded its discretion when it excluded the expert opinion of treating physicians.
The Court of Appeals held that the district court applied the wrong legal standard when it dismissed a complaint based on a plain-language reading of the forum-selection clause without considering whether alleged fraud or overreaching made it unfair or unreasonable to enforce the forum-selection clause.
In this criminal appeal, the Utah Supreme Court extended its holding in State v. Lucero, 2014 UT 15, 328 P.3d 841 to the examination of Rule 404(c) evidence under Rule 403 of the Utah Rules of Evidence. In Lucero, the Court had held that while the factors announced in State v. Shickles, 760 P.2d 291 (Utah 1988) may be useful in evaluating whether Rule 404(b) evidence satisfies Rule 403, the plain language of Rule 403 controls and not all Shickles factors need be considered. The Court makes clear that the same analysis applies to Rule 404(c) evidence.
The Tenth Circuit affirmed the dismissal of the lawsuit for lack of diversity jurisdiction, holding as a matter of first impression that a master limited partnership’s citizenship is the citizenship of all of its unit holders, and not its state of incorporation or principal place of business.

Former county sheriff appealed criminal conviction for violating victim’s constitutional rights. On appeal, the Tenth Circuit considered whether the sheriff used unreasonable force or conducted a lawful arrest when the sheriff, who was not in uniform, chased the victim in an unmarked vehicle, brandished a firearm, pulled the victim from his vehicle, threw him to the ground, and slammed a badge into the victim’s cheek. As a matter of first impression, the Tenth Circuit held that the sheriff lacked probable cause for the stop, notwithstanding the victim’s flight and ensuing traffic violations, where the sheriff not only provoked the flight but also placed the victim in reasonable fear of harm. The Tenth Circuit went on to clarify that language in prior cases requiring more than a de minimis injury to establish excessive force applied narrowly to handcuffing claims.

A criminal defendant appealed from an order of restitution following a plea in abeyance. The Court of Appeals held that a plea in abeyance is not a final, appealable judgment, and that an order of restitution following a plea in abeyance does not constitute an exception to the final judgment rule. As a result, the Court dismissed the appeal for lack of jurisdiction.
A DEA agent boarded a train at a stop, went to a luggage car, pulled a bag with no name tag, then carried it through the passenger car asking people if it was theirs. Everyone, including the defendant, denied ownership. Deeming it abandoned, the agent searched it and found 500 grams of cocaine. The Court held that the agent’s actions amounted to a “meaningful interference with Defendant’s possessory interests” in the bag, and that the seizure was at odds with the expectation of the reasonable traveler.
Appealing the denial of a motion to compel arbitration, appellant argued that appellee should be estopped from avoiding arbitration, because appellant’s counterclaims were based on the same facts, relationships, and dispute as appellee’s claims. The Court of Appeals rejected the argument that the intertwined nature of the claims and counterclaims supplied a basis for compelling arbitration and instead applied the non-signatory exception to the general rule recognized in Ellsworth v. American Arbitration Ass’n, 2006 UT 77, 148 P.3d 983.
The Supreme Court interpreted Utah Code § 78B-5-202(7)(a), regarding when a judgment entered by a district court or justice court becomes a lien upon real property. The Court held that only a final judgment qualifies as a lien under this provision. The Court also clarified the requisite elements of information which must be included in a recorded judgment or abstract to create a valid lien.
The Tenth Circuit held a class-action defendant lacked Article III standing to challenge an award of $40 million in attorney fees to plaintiffs’ counsel.
In a case alleging violation of the Controlled Substance Enforcement Act, it was plain error to allow the jury to infer that defendants had knowledge of the chemical structure of incense from their knowledge that the incense had similar effects as marijuana.
The provision of reunification services by the Department of Child and Family Services is subject to the Americans with Disabilities Act, and an alleged violation of the ADA in connection with reunification services may be raised as a defense or other means of altering a service plan in a parental rights termination proceeding. The court nevertheless affirmed, agreeing with the juvenile court’s determination that there were no additional services DCFS could have provided to accommodate the mother’s disabilities.
In this murder case, the defendant asserted the right to use force to defend his home pursuant to Utah Code § 76-2-405. The Court of Appeals held that the statutory presumption of reasonableness of the force used is rebuttable by a showing of evidence of objective reasonableness, and that defendant’s subjective beliefs of whether his actions were reasonable do not control.
The court of appeals held that the Uniform Prudent Management of Institutional Funds Act does not change the common law rule that charitable donors lack standing to enforce their donative intent.
A divorce decree, which awarded wife one-half of the proceeds from a sale of land owned by an LLC, did not give wife a vested ownership in the land sufficient to support an attorney’s lien, because (a) neither the defendant nor spouse had a personal ownership interest in property owned by an LLC under the Act in effect, and (b) while the land was not subject to division in the divorce decree, even though proceeds from the sale of the property could be subject to distribution.
This appeal arose out of a longstanding dispute between the Osguthorpe family and ASC Utah, Inc., which operated the Canyons ski resort on land adjacent to that owned by the Osguthorpes. The Court held that it lacked jurisdiction to consider several of the Osguthorpe’s arguments relating to the jury trial in the underlying matter - including the argument that additional claims should have been allowed to go to the jury, and objections to jury instructions that were given. The Court explained that the jury verdict was certified as a final judgment under Utah R. Civ. P. 54(b), which also rendered final and appealable all interlocutory decisions that led up to that judgment. The Osguthorpe’s failure to file a notice of appeal within 30 days of the Rule 54(b) certification deprived the Court of jurisdiction to consider those claims on appeal.
The district court dismissed an individual’s petition to probate a will twenty-five years after his father’s death. Affirming, the Utah Court of Appeals held that the three-year limitation contained in the Probate Code was a statute of repose and, as a result, equitable tolling doctrines did not apply.
The criminal defendant appealed the denial of a motion to suppress following conviction by a jury. The Utah Supreme Court held that the defendant was seized when the police pulled up and parked directly behind him on the side of the road with their lights activated, because a reasonable person would not have felt free to leave. It then evaluated whether the seizure was justified by the community caretaking doctrine. In doing so, it abandoned the court’s previous requirement that there be imminent danger to life or limb. The current test for application of the community caretaking doctrine requires courts to first evaluate the degree to which an officer intrudes upon a citizen’s freedom of movement and privacy and then determine whether the degree of the public interest and the exigency of the situation justified the seizure for community caretaking purposes.
Plaintiff filed tier 1 claims for contract damages, limiting him to five requests for production, five requests for admission, and no interrogatories. Utah R. Civ. P. 26(c)(5). Plaintiff served 30 requests for admissions, 13 interrogatories, and 13 requests for discovery. On defendant’s objection, the trial Court ordered vaguely that he respond. Defendant answered the first five requests for production and admission. Plaintiff moved for summary judgment on the basis the remaining requests were admitted. The trial court granted summary judgment, explaining that defendant should have asked for clarification, not merely assumed his interpretation of the rule would govern. Defendant appealed. The court of appeals held that Rule 26 puts the burden on the requesting party to demonstrate a need for extraordinary discovery, even if the requests go without objection. Therefore, a failure to answer requests that exceed the discovery tier is not an automatic admission.

The Tenth Circuit held, as a matter of first impression, that <strong>Federal Rule of Criminal Procedure 11(e) is jurisdictional. </strong>Because the lower court lacked jurisdiction to entertain a motion to withdraw the defendant’s guilty plea after the imposition of a sentence, the Tenth Circuit vacated the judgment and remanded with instructions to reinstate the original sentence.

Granting summary judgment, the district court excluded deposition testimony because it lacked foundation and was nonresponsive to the question posed by the employers counsel during the deposition. The Utah Supreme Court concluded that it was error to exclude the testimony on this basis. The Court held that counsel who was asking a question in a deposition had an obligation to object to the deponent’s non-responsive answer in order to avoid waiver of the objection.
The court held, as a matter of first impression, that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not require the jury to make factual determination underlying a restitution order beyond a reasonable doubt.
The Utah Supreme Court held that a grandparent visitation order under Utah Code § 30-5-2 overriding a parent’s decision is subject to strict scrutiny review, requiring proof that the order is narrowly tailored to advance a compelling governmental interest. In order for the governmental interest to be compelling, there must be circumstances involving the avoidance of “substantial harm.” The Court did not further define what is required to establish “substantial harm,” finding there was no evidence of such harm in the present case.
This case involves claims for wrongful termination by former Wal-Mart employees who were fired for being involved in physical altercations with shoplifters. The employees filed suit in federal district court, and the court certified the question to the Utah Supreme Court of whether self-defense is a substantial public policy exception to the at-will employment doctrine, thus providing a basis for a wrongful termination action. The Court answered yes - concluding that an at-will employee who is fired for exercising the right of self-defense may maintain a wrongful termination action, but only if the employee faced an imminent threat of serious bodily harm in circumstances where he or she was unable to safely withdraw.
Father moved to modify custody two months after the parties resolved a dispute over the amount of child support. Concluding the father failed to show a substantial change in circumstances in the intervening two months since it had accepted the parties’ child support stipulation, the district court dismissed the petition. The Utah Court of Appeals reversed and held the lower court erred when it required the father to show a material change in circumstances in the preceding two months, because the last order addressing the issue of custody occurred years prior to the father’s recent petition.
In this foreclosure action, the prior lien holder (defendant) gave the subordinate lien holder (plaintiff) an inflated calculation of the amount required to pay off the prior lien. Defendant subsequently outbid the plaintiff at the sale. Plaintiff asserted that defendant’s inflation of the payoff and subsequent outbidding at its own foreclosure sale amounted to a substantive violation of Utah Code § 57-1-31 by depriving plaintiff of the opportunity to cure the default. The court of appeals declined to hold that a statutory right to redeem imposed upon defendant a duty not to inflate the payoff amount. Even if it did, no remedy is available that would set aside the valid trustee’s sale, as the beneficiary is not restricted from outbidding plaintiff at the subsequent sale.
This case involves a public utility’s demand for indemnification from an employer under the High Voltage Overhead Lines Act (HVOLA) for all liability the public utility incurred when an employee came into contact with an overhead power line. The court held that a three-year statute of limitations applies to HVOLA indemnity claims, which begins to run when the public utility incurs liability as a result of the contact with the line. The Court also rejected the employer’s argument that the HVOLA indemnity claim was barred by the exclusive remedy provision of the Workers Compensation Act. The Court explained that an HVOLA indemnity claim does not implicate the WCA because it arises under a statutory obligation created by HVOLA, and is not brought on account of or based on the employee’s injuries.
In this criminal appeal, the Utah Supreme Court clarified that unpreserved federal constitutional claims are not subject to heightened review but are to be reviewed under the plain error doctrine.
The court rejected a First-Amendment compelled speech claim over the Oklahoma standard license plate which depicts a Native American shooting an arrow towards the sky. After a bench trial, the district court concluded that a reasonable person would not understand the license plate image to convey the pantheistic message to which appellant objected, and therefore that appellant was not compelled to speak. The Tenth Circuit affirmed, reasoning that appellant’s lack of objection to the only message that a reasonable observer of the license plate would discern (relating to Oklahoma’s Native American History) was fatal to his claim.
Plaintiff, who was in-house counsel, sued his employer alleging he was terminated for refusing to ignore the company’s violation of several states’ usury laws. The trial court dismissed his complaint without hearing on the basis that plaintiff was an at-will employee, and had failed to demonstrate a substantial public policy exception to at-will employment. The Supreme Court affirmed, holding Rule of Professional Conduct 1.13(b) “does not constitute a clear and substantial public policy that prevents the termination of an at-will employee.” It further reasoned, “other rules of professional conduct evince strong policy choices that favor allowing clients to terminate the attorney-client relationship at any time, including firing an in-house lawyer with whom an organizational client disagrees.”
A first time transaction between debtor and creditor can still meet the ordinary course of business exception,when viewed in the context of other, similarly-situated entities.
The Court reversed a magistrate’s decision refusal to bind over the defendant for trial. The Court found that the magistrate abused her discretion by disregarding the victim’s testimony, even if it appeared facially implausible. At a preliminary hearing, the state need only produce evidence sufficient to support a reasonable belief that the defendant committed the crime charged, not evidence that would support a conviction beyond a reasonable doubt.
This case arose out of allegations of medical malpractice and wrongful death. The federal district court certified two questions relating to the applicability and constitutionality of a cap on non-economic damages contained in Utah’s Malpractice Act. Addressing the constitutional question at the outset, the Supreme Court concluded that article XVI, section 5 of the Utah Constitution protected economic damages and certain noneconomic damages available at the time of statehood, a time in which parties could not recover for mental anguish or suffering of survivors, but could recover other non-economic damages, such as loss of assistance or support of the deceased. The Supreme Court narrowly construed the “compensation” exception to the constitutional provision, holding that it referred to a system akin to worker’s compensation. Turning to its Malpractice Act analysis, the Supreme Court held a statutory cap on that amount of non-economic damages was unconstitutional as applied in a wrongful-death case.
The Court held, as a matter of first impression, that conduct resulting in a criminal conviction is inadmissible as impeachment evidence under Utah R. Evid. 608(b). Rather, the admissibility of that evidence is governed solely by Rule 609.
The Tenth Circuit held that a district court order remanding a case to state court on the basis that the defendants did not unanimously join or consent to removal is patently unreviewable.
A criminal defendant sought to withdraw his plea in abeyance under the Post-Conviction Relief Act based on his counsel’s alleged ineffective assistance in advising him that the abeyance plea had no immigration consequences. The Utah Supreme Court affirmed, holding that both a conviction and a sentence are prerequisites to relief under the PCRA and the defendant’s plea in abeyance was not a conviction. The Court also declined to exercise its authority to issue an extraordinary writ because the defendant had an adequate remedy for his claim of ineffective assistance of counsel: the defendant’s claim, which involved the Sixth Amendment right to counsel and the serious consequence of deportation, qualifies as sufficiently unusual and exceptional circumstances allowing for relief under Rule 60(b)(6).
This case arose out of the severe sexual assault of plaintiff by an inmate participating in a work-release program operated by Utah County. The Utah Supreme Court held the Governmental Immunity Act barred the claim because the operation of a non-traditional rehabilitation program was essential to the core governmental activity of maintaining a state prison system, even if the program generated revenue for Utah County.
Defendant fired plaintiff, a salesman, on account of missing inventory, and withheld payment of commissions. The Supreme Court held that withholding is permissible if there is enough evidence to warrant an offset, and that such a finding of a hearing officer can occur after the fact. The court cautioned that employers withhold unilaterally at their own peril; if a hearing officer finds against the employer, the employer would then be subject to statutory penalties.
In this worker’s compensation case, a bus driver suffered two injuries, approximately four-and-a-half years apart, both of which required spinal surgery. To show a causal connection between an industrial accident and subsequent injury, the claimant must show that the workplace injury was a “significant contributing cause of the subsequent non-workplace injury, not merely a cause or a minor cause.”
This lengthy opinion addresses multiple substantive and procedural rules arising from a complicated divorce. Among other things, the court held “it is improper to allow one spouse access to marital funds to pay for reasonable and ordinary living expenses while the divorce is pending, while denying the other spouse the same access.”

The Court of Appeals held, based on the language of the Restitution Act, that <strong>an order of restitution must be entered at the time of sentencing or within one year of sentencing. </strong>Concluding the statutory provision was mandatory and therefore jurisdictional, the Court of Appeals vacated a restitution order entered 15 months after conviction.

The Utah Supreme Court held, as a matter of first impression, that a presumption of harm attaches when a party makes a prima facie showing of misappropriation of trade secret, even if the party opposing summary judgment fails to submit proof of actual monetary damages.
The Court of Appeals held that an award of attorney fees to the prevailing party is mandatory under the mechanics lien attorney’s fee statute, Utah Code § 38-1-18.
Defendant was convicted of various drug offenses and appealed the denial of his motion to suppress. The district court had found that the affidavit that had formed the basis of the warrant failed to show probable cause, but applied the good faith exception to the warrant requirement. The Tenth Circuit reversed, finding that the information in the affidavit was so tenuously linked to the Defendant and his home at the time of the search that no reasonable officer could have relied on it. The fact that the only relevant information in the affidavit was stale and only incidentally related to the Defendant overcame even the “deferential” good faith standard.
In a trial for felony murder, a jury returned a verdict with the box for felony murder marked as guilty, but the box for the predicate robbery charge marked as not guilty. The state appeals court reversed and remanded for a new trial, but on retrial he was convicted again of felony murder. He then argued that acquittal of the lesser-included offense precluded retrial of the greater included charge because they were the same charge for the purposes of double jeopardy. Focusing on the apparent inconsistency of the verdicts, the Court observed that a jury may be convinced of guilt but arrive at a logically inconsistent verdict “through mistake, compromise, or lenity[.]” The test for identifying a “truly inconsistent verdict” is whether there is any conceivable path by which to reconcile the verdicts.
Landowners sued Wasatch County and the Wasatch County Fire Protection Special Service District for collecting service fees. The Court of Appeals upheld a service fee that bore a reasonable relationship to services provided by a special use district, where the fee, while partly arbitrary and inexactly apportioned, conferred economic and unquantifiable benefits, such as “increased safety and peace of mind.” At the same time, the Court of Appeals concluded that the District could not collect lump-sum fees that had never been approved or passed by the County.
Confirming the two-part test for alter ego analysis (formalities test and fairness test), the Court held that the second part of the alter ego test is not a self-fulfilling inquiry dependent upon the first part, but a consideration under the court’s equitable powers. The court found that even where defendant corporation’s only owner took a loan from defendant corporation which he had not paid back, and where accounting records were substantially incomplete, plaintiff had not carried her burden, and defendants were entitled to summary judgment on the issue of alter ego.
The Court rejected Greyhound’s argument that contractual provisions requiring one party to procure insurance for the benefit of another must be strictly construed in the same manner as contracts for indemnification. The Court affirmed the district court’s holding that traditional principles of contractual interpretation should be used in assessing agreements to procure insurance.
The Tenth Circuit affirmed the district court’s denial of a preliminary injunction to the plaintiffs, concluding that the mandate and accommodation scheme of the Affordable Care Act do not substantially burden the plaintiffs’ religious exercise under the RFRA or infringe upon their First Amendment rights.
Petitioner’s statements obtained during an interview in which a detective made representations about leniency and promised to find shelter for the petitioner and her two children, who were homeless at the time were involuntary and the state court’s admission of those statements was not harmless error.
The plaintiffs’ claims were irretrievably subject to arbitration because the election to arbitrate was not rescinded within 90 days.
The Supreme Court held that the plaintiff was entitled to a jury trial of a quantum meruit claim involving payment of attorney’s fees. The Court also held, as a matter of first impression, that the appropriate measure of damages for quantum meruit is the benefit to the defendant, rather than the value of professional services.
The Utah Court of Appeals held, as a matter of first impression, that a violation of a government regulation on land constitutes an encumbrance if it exists at the time of the conveyance and the seller either is aware or should be aware of it.
Grandmother brought an action seeking grandparent visitation after her son passed away and the maternal grandparents adopted the child. The Utah Court of Appeals concluded that grandparent visitation rights survive adoption only when a stepparent adopts the child or a court has ordered grandparent visitation before the adoption.
Following a bench trial, a personal injury plaintiff appealed the denial of his motion for a new trial. Among other things, the plaintiff argued a new trial was warranted because the district judge’s law clerk had a conflict of interest, and the judge failed to adequately screen the law clerk. The Tenth Circuit disagreed. Acknowledging that provisions of the Code of Judicial Conduct applied to law clerks, the Tenth Circuit held that no actual conflict of interest existed where the clerk’s husband attended the trial as an informal observer on behalf of a non-party insurer. The Tenth Circuit then analyzed whether the judge should have recused under 28 U.S.C. § 455(a), which governs judicial disqualification. The Tenth Circuit acknowledged that a clerk’s relationships or conflict of interest may be imputed to the judge and jeopardize the appearance of impartiality if the clerk is allowed to continue substantively working on the case. Analogizing to similar cases in other jurisdictions, the Tenth Circuit held that the trial court did not abuse its discretion in denying the motion for a new trial where the law clerk’s husband had limited involvement in the proceeding, the clerk promptly notified the court of her husband’s involvement, and the judge screened the clerk from any additional substantive work.
Plaintiff’s complaint alleged that off-duty police officer inexplicably “used his official squad car and activated its emergency lights and proceeded to speed through surface city streets at more than 60 miles per hour over 8.8 miles through eleven city intersections and at least one red light - all for his personal pleasure, on no governmental business of any kind[,]” eventually colliding with and killing plaintiff. Defendant moved to dismiss plaintiff’s 42 U.S.C. § 1983 claim on grounds of qualified immunity. The Court held that a § 1983 claim survives a motion to dismiss for qualified immunity where the officer exhibits a conscience-shocking deliberate indifference to the lives around him, and this constitutes a deprivation of substantive due process.
The Utah Court of Appeals held that the savings statute, Utah Code § 78B-2-111, which allows commencement of a second action within one year, applies to claims filed against governmental entities under Utah’s Governmental Immunity Act.
The Salt Lake Tribune appealed the district court’s denial of its motion to intervene to challenge classification of court records as private in a defamation case. The plaintiff argued that the motion to intervene was moot because the underlying action was dismissed during the pendency of the appeal. The court held the motion to intervene was not rendered moot by the dismissal because the disposition of the motion to intervene would dictate whether the Tribune may challenge the district court’s classification order on appeal, and therefore the requested relief of intervention continued to affect the legal rights of the Tribune. This issue was not resolved or extinguished by the dismissal.
Defendant, convicted of theft, appealed the amount of restitution required by the court. The prosecution had introduced only evidence of the purchase price of the stolen items, and the Defendant presented no alternative evidence of fair market value. The lower court awarded the purchase price of the items as restitution. The Utah Court of Appeals reversed, holding that it was the prosecutor’s burden to demonstrate an appropriate amount of restitution, and that if the States fails to meet that burden, the court should calculate the value of the items for which purchase price provides a fair estimate of value, and then grant nominal value for any item whose value is not reasonably reflected in the purchase price. The court further included discussion of the circumstances in which purchase price is or isn’t an appropriate approximation of fair market value.
Plaintiff brought claims for negligence and wrongful death. The plaintiff argued that that the Utah Department of Transportation fix to resolve an obstructed culvert following a sudden rainstorm and flooding led to the collapse of the road and a tragic motor vehicle accident. The district court concluded the Department was entitled to immunity under Utah’s Governmental Immunity Act. Reversing, the Utah Supreme Court devoted significant attention to interpreting statutory language relating to defective culverts and governmental management of flood waters. The Court further held that governmental entities may invoke a statutory exception to the waiver of immunity only if the condition articulated in the statutory exception is the proximate cause of a plaintiff’s injuries. In doing so, the Court repudiated prior decisions where the Court had applied a “but for” causation analysis.
In this latest episode in a nearly 40-year long battle between the Ute tribe and the State of Utah over local governments displacing tribal authority on tribal lands, the Tenth Circuit enjoined Uintah County officials from pursuing criminal convictions for offenses in areas declared to be Indian Country, and also ordered dismissal of the State’s counterclaims against the Tribe on the grounds of sovereign immunity.
The Utah Court of Appeals confirmed that the requirement of Utah Code § 78B-6-807(3) that “[a] judge, court clerk, or plaintiff’s counsel shall endorse on the summons the number of days within which the defendant is required to appear and defend the action” requires the number of days for response to be written in handwriting, not typed. This is true even though, as the court had explained in a prior case, strict adherence to the requirement “may seem somewhat silly.” Because in the present case the number of days was typed rather than handwritten, the district court’s authority under the unlawful detainer claim was never invoked.
In this complex wire fraud and money laundering case, the Tenth Circuit affirmed the convictions of two individuals who had created or participated in a fraudulent real estate scheme. On appeal, the defendants argued that the district court incorrectly instructed the jury on the elements of wire fraud, because the court removed the phrase “defraud or” from its instructions. The Tenth Circuit disagreed and held the instruction did not omit an essential element of the crime of wire fraud, because the remaining language, which required the jury to find the defendants “devised, intended to devise, or joined a scheme to obtain money or property,” described a specific type of fraudulent scheme within the statute.
The Price-Anderson Act does not preempt state law claims for alleged releases of plutonium and other hazardous releases. The Court “consider[ed] how far Congress went in reshaping state tort claims involving what the Act delicately refers to as nuclear ‘incidents’ and ‘occurrences.’” The Court found that a nuclear “incident” was defined plainly enough in the statutory language as an “occurrence” that causes “bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property.”
The court rejected a postal worker’s challenge to a federal regulation that prohibited him from carrying his firearm onto USPS property. First, the court held that the parking lot should be considered a single unit with the federal building, for which prohibition of firearms is clearly allowed. As an alternative grounds, it upheld the regulation under an intermediate scrutiny analysis, which it held was appropriate in the context of Second Amendment challenges.
In a detailed opinion on the nature and history of aboriginal rights, the Tenth Circuit concluded that the district court erred in dismissing quiet title claims brought by an Indian tribe. In doing so, the Tenth Circuit reiterated that, absent a clear and unequivocal intent to extinguish pre-existing aboriginal rights, the Jemez Pueblo’s aboriginal right of occupancy survived a grant to a private landowner. The Tenth Circuit further held that a private landowner’s occupation, standing alone, may not be sufficient to extinguish aboriginal title, because fee title and aboriginal title could exist simultaneously. The Tenth Circuit remanded for consideration of whether the Jemez Pueblo had exercised its right of aboriginal occupancy and clarified that the test was whether Jemez Pueblo had “actual, exclusive, and continuous use and occupancy.” For an Indian tribe, this factual determination depends on proof that (a) the tribe occupied the land exclusive of other tribes, and (b) the tribe used the land consistent with its traditional purposes, which may include “hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like.”
In this construction defect case, the district court dismissed the homeowners’ contractual claims against a construction company after finding the homeowners had knowledge of their claims and were not entitled to equitable tolling. The Court of Appeals affirmed on alternative grounds. It concluded that Utah Code § 78B-2-225(3)(a), which provides that contractual and warranty claims against certain providers of construction services “shall be commenced within six years of the date of completion or abandonment,” is a statute of repose. As a result, a homeowner seeking to recover against a construction company under a theory of contract or warranty outside the six-year time limit cannot invoke equitable tolling.
The plaintiff, the husband of an active-duty service member in the Air Force, filed suit against the United States seeking compensation for their child’s injuries resulting from an in utero deprivation of oxygen during a Caesarean section. The Tenth Circuit held that it lacked jurisdiction over the plaintiff’s claim under the Feres doctrine, which represents a limited judicial exception to the federal government’s broad waiver of sovereign immunity under the Federal Tort Claims Act for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The Feres doctrine had previously been applied broadly to preclude suits by third parties that derive, directly or indirectly, from injuries to service members incident to military duty. As a matter of first impression, the Tenth Circuit held that it was bound to apply the “genesis test,” and specifically the injury-focused approach to that test, as opposed to the treatment-focused approach, for in utero cases. Applying the appropriate test, the Tenth Circuit held that the child’s injury was derivative of an injury to the mother.
-Section 16 of the Federal Arbitration Act, 9 U.S.C. § 16(a)(1)(A), confers jurisdiction over an appeal from an order lifting a stay of litigation, not simply “refusing a stay” as stated in the statute.
The defendant appealed from a restitution order entered following his conviction for sexual exploitation of a minor. The crimes occurred in 2003 and the defendant was convicted but failed to appear at sentencing in 2005. He was finally apprehended in 2009, after which the district court held a sentencing and restitution hearing. The district court ordered the defendant to pay restitution for the victim’s counseling costs and for the victim’s lost wages. On appeal, the defendant argued that the restitution award to the victim for lost wages was inappropriate because the causal connection between his conduct in 2003 and the victim’s lost wages in 2009 and 2010 is too attenuated and because the lost wages are more appropriately classified as pain and suffering damages, which are not awardable under the restitution statute. The Court of Appeals affirmed the restitution order, holding the causal connection was sufficiently established and that the victim’s lost wages are pecuniary damages recoverable by statute.
A trial court refused to award attorney fees to a debtor who successfully raised a statute of limitations defense in a collection action. Importing the standard used to determine whether attorney fees are warranted under the terms of a contract, the Court of Appeals held that attorneys fees under the reciprocal fee statute “‘should ordinarily be honored’ unless ‘compelling reasons appear otherwise.’” Id. ¶ 14. On appeal, the creditor argued that attorney fees would create a windfall for the debtor. Because the trial court failed to make factual findings in support of its conclusion that attorney fees would unjustly enrich the debtor, the Court of Appeals reversed and remanded.
The defendant, who was 17 at the time of the crime, pled guilty to aggravated murder in exchange for the prosecution dropping other charges and agreed to a sentencing hearing by jury to determine his sentence that would range between 20 years and life. The jury returned a life sentence without the possibility of parole. The boy made a number of constitutional challenges to his sentence. The prosecution countered that he failed to preserve those challenges. The court held that Rule 22(e) of the Utah Rules of Criminal Procedure can be used to challenge the sentence regardless of whether the challenge was properly preserved for appeal, because “an illegal sentence is void and, like issues of jurisdiction [may be raised] at any time.” The court denied his constitutional challenges on other grounds.
The Utah Court of Appeals certified to the Utah Supreme Court an appeal by Provo City and the Workers’ Compensation Fund of a Labor Commission’s order affirming an administrative law judge’s determination that a Provo City employee was permanently and totally disabled. The Utah Supreme Court addressed the appropriate standard of review for each of the six elements required to establish permanent, total disability. The court held that the standard for each element differs depending on whether the issue is one purely of fact or a mixed question of law and fact.
Defendant used peer-to-peer file-sharing software Limewire to download child pornography. The software’s default settings make the user’s files available for search and download by other Limewire users. Defendant argued that making files available as a result of the software’s default settings does not support a conviction for distribution of child pornography. The Tenth Circuit rejected that assertion and affirmed his conviction, reasoning that passively making files available on the Internet satisfies intent requirement of the crime of distribution of child pornography.
This medical malpractice appeal serves as a cautionary tale to co-defendants who plan a joint defense. A widow pursued negligence claims against the doctors and hospital that allegedly failed to diagnose her husband’s throat cancer. The defendants maintained a unified front all the way up to pre-trial, denying negligence by anyone. Then, on the eve of trial, some of the defendants settled, leaving one doctor to stand trial by himself. The Tenth Circuit held that the district court did not abuse its discretion in refusing to allow the doctor to amend his pre-trial order to revamp his trial strategy with new witnesses and exhibits to pin the blame on the absent settling defendants.
The Utah Court of Appeals was called upon to interpret Utah’s wrongful death statute, Utah Code Ann. § 78B-3-107 (LexisNexis Supp. 2014), and decide whether a woman could sue herself for damages that would be potentially covered under an insurance policy. The woman was the plaintiff, acting as heir and personal representative for her deceased husband’s estate, and also the defendant, acting as the driver alleged to have caused the accident that killed her husband. The Utah Court of Appeals analyzed the plain language of the statute and concluded that it did not, by its express language, bar the woman’s wrongful death claim against herself. The court commented that if this result is misaligned with public policy, it is the province of the legislature to correct it.
Utah Rule of Criminal Procedure 22(e) provides that the court may correct an illegal sentence. The Utah Supreme Court held the rule encompasses facial constitutional challenges to a sentence that do not arise at the trial. The court’s holding creates a limited exception to the preservation doctrine to preserve appellant’s right to raise constitutional issues on appeal that appellant otherwise failed to preserve. Thus, a defendant may bring constitutional challenges that attack the sentence itself and not the underlying conviction and which do so as a facial challenge, rather than an as-applied inquiry.
The plaintiff company appealed from the denial of a preliminary injunction to prevent the defendant, the company’s former director, from selling shares of the company’s stock. The Utah Court of Appeals held that the district court abused its discretion in denying the preliminary injunction. Specifically, it held that the district court’s narrow focus on whether the company would ultimately be able to collect on the note overlooked the value to the company of the bargained-for leverage of the prohibition on the sale of “encumbered shares.”
Applying Cope v. Utah Valley State College, 2014 UT 53, decided just six weeks earlier, the Court of Appeals held that the public duty doctrine exception to liability for public entities applies only if the actor has not established a special relationship “that imposes a specific duty of care toward the plaintiff as an individual distinguishable from a public duty owed to the general public.” The court lists four circumstances creating a special relationship, one of which is “when a government agent undertakes specific action to protect a person or property.” The plaintiff/husband had called police because he believed his wife was suicidal. Police arrived and the wife denied overdosing, saying she took the pills as prescribed and that the powder was from making pancakes. Police tucked the wife into bed and told the husband that his wife did not overdose and just needed to sleep it off. The husband asked police to take his wife to the hospital, and the police told him to leave the wife alone and if he called again, they would arrest him. The court held these facts sufficient to describe a special relationship, but stated the holding only “imposes on police officers the duty to act reasonably when they enter a person’s home, undertake specific action to protect that person, and prevent others in the home from taking protective action.”
”To survive a motion for summary judgment on an alter ego theory, the party alleging alter ego liability must present evidence creating a genuine issue of disputed material fact with respect to both the “formalities requirement,” which assesses whether the personalities of the two entities demonstrate a degree of the unity of interest and ownership such that they are one; and the “fairness requirement,” which requires the movant show observance of the corporate form would sanction a fraud, promote injustice, or condone an inequitable result. “[T]he possibility that a plaintiff may have difficulty enforcing a judgment against [the corporate entity] alone is not the type of injustice that warrants piercing the corporate veil.”
In a breach of contract case, the defendant’s claim that the plaintiff had not provided evidence to support its damages claim did not qualify as a showing that the defendant was entitled to summary judgment, given that the motion was filed before the end of fact discovery. “Considering that discovery has not yet closed, there is nothing unusual or inappropriate about the fact that [the plaintiff] had not yet proved its damages.” Unless the defendant had submitted a well-supported motion establishing that the plaintiff had suffered no damages, the plaintiff did not yet need to prove its damages to avoid summary judgment.
The children of a man who shot and killed his wife, their mother, while under the influence of medications prescribed to him filed suit against the nurse practitioner who had prescribed the medication as well as the consulting physician. In B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the Utah Supreme Court reversed the dismissal of the childrens’ tort claims against the nurse practitioner, holding she had a duty of reasonableness that extended to third parties who might be injured as a foreseeable result of her negligence. In this case, the Court affirmed the dismissal of the childrens’ claims against the consulting physician, holding that the provision of the Nurse Practice Act allowing a nurse practitioner to prescribe schedule II-III controlled substances “in accordance with a consultation and referral plan,” Utah Code § 58-31b-102(13)(c)(iii), does not impose a duty on a physician to consult with the nurse practitioner on each individual prescription of a controlled substance.
The Utah Supreme Court analyzed the applicability of the “attenuation doctrine” exception to the exclusionary rule in this case where the police’s unlawful detention of the defendant led to the discovery of an arrest warrant and was followed by a search incident to arrest. The court noted the lack of controlling authority from the United States Supreme Court, analyzed how other lower courts have handled the issue, and ultimately adopted its own new approach limiting application of the attenuation doctrine to factual scenarios involving intervening acts of a defendant’s free will, such as a confession or consent to a search. Applying this new standard, the court found that the attenuation doctrine was not implicated and therefore reversed the court of appeals’ decision upholding the district court’s denial of the defendant’s motion to suppress.
The Utah Supreme Court held that it lacked jurisdiction over an appeal taken from an order compelling arbitration. Such an order is a final order, so the notice of appeal procedure applies. Here, the appellant filed a petition for interlocutory appeal directly with the appellate court and did not file anything with the district court. The only notice that the district court received of the appeal was a routine letter sent from the Utah Supreme Court. The Utah Supreme Court held that this form letter could not substitute as the “notice of appeal” that is required under Rule 3 and that it could not treat the interlocutory appeal as sufficient notice because the appellant had not filed a copy of it in the district court.
In the context of legislative amendments to the Indigent Defense Act, the Utah Supreme Court rejected the government’s argument that there is a “clarification” exception to the general rule against retroactivity. Although prior cases alluded to such an exception, the Utah Supreme Court had never applied it as a freestanding exception, and more recent cases had repudiated it as such. As a result, the law that applied to the defendant’s conduct was the law as written at the time of his offense, not as later amended by the legislature.
The Utah Supreme Court changed the standard for determining when an order is final for purposes of filing an appeal when a Rule 11 motion is pending. In Clark v. Booth, 821 P.2d 1146 (Utah 1991), the Utah Supreme Court had held that Rule 11 sanctions were collateral and did not affect the finality of a court’s order. Subsequently, in ProMax Development Corp. v. Raile, 2000 UT 4, 998 P.2d 254, the Utah Supreme Court adopted a rule that a judgment is not final until resolution of any outstanding requests for attorney’s fees. Reversing the Utah Court of Appeals, the Utah Supreme Court repudiated Clark and held that requests for Rule 11 sanctions raised before or contemporaneously with the entry of a final, appealable judgment must be resolved in order for the judgment to be final and appealable.
Defendant was convicted of various drug-trafficking offenses. For the purposes of sentencing, the trial court found defendant’s offenses included a higher quantity than the jury convicted him for and increased his sentence within the statutory range for the offenses the jury convicted him of. The Tenth Circuit affirmed the sentence based on the trial court’s finding, holding that as long as it does not alter the statutory sentencing range, the finding is not subject to the jury’s standard of beyond a reasonable doubt, and therefore, there is no error.
Religious organization brought suit under Utah Constitution after dismissal of federal constitutional claims by United States Supreme Court. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009). The Utah Supreme Court held that the religious liberty clause of the Utah Constitution does not require Pleasant Grove City to install a proposed Summum religious monument in a park where a Ten Commandments monument is already situated. The court reasoned that even assuming that the Ten Commandments monument amounts to religious exercise or instruction, an injunction requiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The court further reasoned that the neutrality test articulated in Society of Separationists, Inc. v. Whitehead, 870 P.2d 916, 935 (Utah 1993), has no application in the context of government monuments and that Summum could not rely on it to facilitate the placement of its own proposed monument.
Party host showed his guest his gun collection. Guest was extremely intoxicated with a Blood Alcohol Content of 0.25. Guest then picked up host’s handgun out of curiosity. Host warned guest to handle it with care as it was loaded. Guest shot herself in the head and died. Her estate claimed negligence, and trial court dismissed on summary judgment claiming the host owed guest no cognizable duty under Utah law. The Utah Supreme Court reversed and remanded, creating a new duty that requires gun owners to exercise reasonable care in supplying their guns to incompetent or impaired individuals, whom they know, or should know, are likely to use the gun in a manner that creates a foreseeable risk of injury to themselves or third parties.
A former reserve deputy sued the county sheriff’s department under 42 U.S.C. §§ 1983 and 1985 for violation of his First Amendment rights to free speech. The deputy alleged that the department retaliated against him for testifying in support of a criminal defendant in a civil rights trial about mistreatment by federal law enforcement officers. The district court granted summary judgment to the City, supported in part by the conclusion that the deputy’s testimony was part of his official duty as a public employee and therefore was not legally protected speech. The Tenth Circuit reversed, holding that the deputy’s courtroom testimony was protected by the First Amendment because it involved the “very kind of speech necessary to prosecute corruption by public officials.” Id. [21] (emphasis added)
Thirteen days after a jury awarded her $5.26 million in damages for mesothelioma, the plaintiff died. Her estate then brought wrongful death claims under the same theories of negligence, strict product liability, and failure to warn. Defendants moved to dismiss on the grounds that plaintiff’s personal injury verdict precluded her estate’s wrongful death claim. In this interlocutory appeal from the denial of the motion, the Utah Supreme Court held the personal injury judgment does not preclude a wrongful death suit based on clear statutory language that a personal injury claim and a wrongful death claim aim to compensate for two distinct types of losses. The court was careful to “emphasize that double recovery is impermissible.”
The Utah Supreme Court held that the Utah Payment of Wages Act does not impose personal liability on the managers of a limited liability company for unpaid wages, reasoning that the act’s definition of “employer” does not include managers of limited liability companies.
The district court dismissed this case involving enforcement of a guarantee agreement, concluding that it should have been asserted as a compulsory counterclaim in an earlier suit between the parties. The Utah Supreme Court reversed, holding that Rule 13(a) of the Utah Rules of Civil Procedure does not extend to a counterclaim that has not yet matured at the time of a civil proceeding.
This case involves allegations of negligence in the hiring, training, and supervision of employees at a business providing services to the disabled, which resulted in the sexual assault of a minor by one of the defendant’s employees. The Utah Supreme Court’s ruling on an interlocutory appeal from the denial of a defense motion for summary judgment is significant in two respects. First, the court adopted Section 317 of the Restatement (Second) of Torts, which recognizes a “special relationship” basis for a duty of an employer to exercise reasonable care in preventing an employee from acting outside the scope of employment in “intentionally harming others.” Second, the court held that Utah’s comparative negligence regime calls for apportionment of responsibility for intentional torts.
A woman petitioned for and obtained a declaration of unsolemnized marriage between herself and her deceased partner. The district court allowed several of the partner’s cousins to intervene in the action, granted their Rule 60(b) motion to set aside the marriage declaration, and then dismissed the case on its own initiative for untimely service under Rule 4(b)(i) of the Utah Rules of Civil Procedure. The Supreme Court reinstated the marriage declaration, agreeing with the woman’s arguments on appeal that she had waived service of process on behalf of her partner’s estate during the time she served as its personal representative. The Court also noted that it was improper for the district court to dismiss the case on its own initiative without giving the woman notice and an opportunity to respond to its determination on service.

The Office of Professional Conduct (OPC) investigated allegations of professional misconduct against an attorney, and referred the matter to a screening panel of the Ethics and Discipline Committee of the Utah Supreme Court (Committee). The screening panel provided a notice of informal complaint (NOIC) to the attorney notifying him that the OPC believed he may have violated certain rules. At the hearing, the screening panel determined that the attorney had violated another rule (Rule 1.2-representation), which the attorney was unprepared to address because it was not listed in the NOIC. The attorney filed an exception to the screening panel’s determination and presented additional evidence that he had not violated Rule 1.2, but did not request a hearing. The Committee chair did not consider the additional evidence in ruling on the exception, and affirmed the screening panel’s determination. On appeal, the Supreme Court considered the additional evidence and reversed the Committee’s determination that the attorney violated the rules, finding that it was not supported by substantial evidence. The Court instructed the rules committee to propose changes to the rules to address its concerns over the procedural fairness and efficiency of new charges arising in screening panel hearings.

Property owners secured a construction loan through defendant, which they used to make periodic draws to pay a contractor for the development of two residential properties. Defendant required plaintiff to hand write lien waivers on the requests for draws. Upon the owners’ default, contractor attempted to enforce the lien against the defendant. Defendant asserted the contractor waived his liens. The contractor challenged the handwritten waivers as insufficient to effect a release under the Utah Mechanic’s Lien Act. The trial court held the waivers constituted substantial compliance, but the Court of Appeals reversed, holding the language was missing essential elements set out in the Act. The Supreme Court held that the statute is a safe-harbor, not a requirement, and the handwritten terms alone were not sufficient to effect a lien release. For an effective lien release, the defendant must demonstrate both a knowledge of a right in a lien, and the intentional relinquishment of that right.
Utah Department of Transportation’s parade permitting requirements, which include insurance and indemnification requirements, were not unconstitutional as applied even though Utah does not exempt indigent applicants from the requirements. The court held, however, that the insurance and indemnification requirements were not narrowly tailored to serve Utah’s significant public interests of promoting public safety. There was no evidence that the requirements addressed public safety or had any effect on the direct expenses Utah incurs in hosting a parade, and the requirements were not narrowly tailored to serve the state’s interest in protecting itself from liability.

A Rule 7 appeal bond cannot cover costs of notifying class members of an appeal, or administrative costs in maintaining a settlement pending appeal. Several class members had objected to a settlement of claims against Western Union relating to how it handled failed wire transfers. The district court overruled their objections, certified the class, approved the settlement, and entered final judgment. The district court’s order required the objectors to post a bond of over $1 million in order to pursue an appeal of their objections, covering three categories of costs: $647,674 to send class members notice of the appeal, $334,620 in administrative costs to maintain the settlement pending appeal, and $25 for “printing and copying.” The Court decreased the amount of the bond to $5,000, which it deemed to be the reasonable cost of printing and copying.

These companion cases involve the same underlying fair value proceedings initiated by dissenting minority shareholders. In 2014 UT 60, the court affirmed the district court’s refusal to rule on URI’s motion for abatement of interest on the judgment under Rules 60(b) and 62. The court explained that district courts are not empowered to abate interest under those rules, and that the proper way to abate interest pending appeal would be to tender payment and then seek a satisfaction of judgment under Rule 58B.

In 2014 UT 59, the court addressed the related issue of whether a judgment debtor waives his right to appeal by voluntarily paying a judgment. The general rule is that “if a judgment is voluntarily paid, which is accepted, and a judgment satisfied, the controversy has become moot and the right to appeal is waived.” The Court clarified that while this general rule remains valid, a judgment debtor may preserve his right to appeal as long as the intention of preserving the right to appeal is “made to appear” clearly on the record.The case also contains a useful discussion of the circumstances under which various valuation discounts may be applied in valuing dissenters’ shares.

Defendant was convicted of murder and robbery. Several months after his conviction, he filed for reinstatement of his right to appeal pursuant to Manning v. State and Rule 4(f) of the Utah Rules of Appellate Procedure. He claimed neither counsel nor the trial court informed him of the 30-day deadline to appeal. The court held that <strong>reinstatement of the right to appeal must be based on a showing by a preponderance of the evidence that neither the court nor counsel properly advised of right to appeal, and but for that failure, the defendant would have appealed.</strong>

State employees, representing a class of New Mexico state and local government employees, commenced action in state court alleging that they paid for insurance coverage through payroll deductions and premiums pursuant to a policy issued by their insurer, but did not receive the coverage for which they paid. Defendants removed to federal court under the Class Action Fairness Act (CAFA). The district court remanded to state court, finding that the local controversy exception to CAFA required it to decline jurisdiction. The Tenth Circuit reversed. Although plaintiffs could not satisfy the “local defendant” requirement of CAFA’s local controversy exception (28 U.S.C. § 1332(d)(4)(A)) simply by naming the insurance company’s local agent as a defendant, the local agent’s conduct did not form a significant basis for the plaintiff’s claims, and the plaintiffs did not seek significant relief from her.
Participants and employers in multiple states sued the Millennium Multiple Employer Welfare Benefit Plan (the “Plan”) and multiple insurance companies that held their life insurance policies. The plaintiffs alleged tort claims and sought a declaratory judgment over ownership of their policies. The Plan declared Chapter 11 bankruptcy, and one insurance company sought to interplead the cash value of the policies it held into the court and enjoin the plaintiffs from prosecuting any state tort claims against it. The bankruptcy court granted the interpleader petition in part, but denied injunctive relief relating to the state tort claims. The Tenth Circuit affirmed, holding that interpleader relief does not permit the insurance company to shield itself from its tort liability or to limit its total liability in tort to the value of the policies.
The Shondel doctrine requires the lesser of sentences when two crimes impose “disparate penalties for identical conduct [same elements for two different crimes].” State v. Williams, 2007 UT 98, ¶ 12. In this arson case, defendant argued that the elements of solicitation and accomplice liability are one in the same. The court disagreed, holding that accomplice liability is not a crime in itself, but an extension of liability for the underlying crime. Therefore, , one cannot be convicted of accomplice liability without the completion of the underlying crime, whereas one can be convicted of solicitation without completion of the underlying crime. “[T]he accomplice-liability and criminal-solicitation statutes do not require proof of the same elements and [] the Shondel doctrine is therefore inapplicable.”
In a case involving a claim for reimbursement for the father’s share of preschool expenses more than eight years before the claim was asserted, the court held that the statute of limitations applicable to child support orders (four years after the child reaches majority) controls claims for reimbursement of child care expenses, even though the applicable code section seems to exclude child care expenses from the definition of “child support.”
The trial court failed to conduct a scrupulous examination of the evidence that 404(b) analysis requires. The trial court erroneously “took two separate categories of bad acts - drug dealing and encouragement of prostitution - and analyzed them as a single unit,” potentially preventing the jury from accounting for marked differences between the acts that lead to improper inferences.
A member of an LLC held a first-position deed of trust on property owned by the LLC, and a non-member creditor held a mechanics lien, junior to the deed of trust, on the same property. The court held that § 48-2c-1308 of the Revised Limited Liability Company Act gives the non-member creditor priority over the member creditor, irrespective of the deed of trust. The court also rejected the member creditor’s argument that the LLC had altered the priority scheme of § 48-2c-1308 in its operating agreement. The law requiring this result has been repealed, but it remains in effect for limited liability companies formed before January 1, 2014 until the newly enacted Utah Revised Uniform Limited Liability Company Act fully replaces the old law on January 1, 2016.
Parents’ custody agreement provided that mother would have physical custody of the son until he entered seventh grade, at which point custody would switch to the father. The agreement also provided that a custody evaluator would be retained at that time to assess whether the change in custody to the father until tenth grade remained in the child’s best interest. Although the evaluator agreed that the change was in the child’s best interest, the district court nevertheless allowed the mother to retain custody. In response to the father’s argument that the court should have been reluctant to set aside the stipulated-to change-of-custody provision, the Court of Appeals held that the district court did not err by ruling it had the statutory authority to conduct a best-interest analysis. The parents could not by stipulation divest the court of its statutory charge to ensure that any custody arrangement or change of custody serves the child’s best interest.
Defendant moved to dismiss based on lack of personal jurisdiction, the district court agreed, and the Court of Appeals reversed. Hunsaker goes into detail on personal jurisdiction requirements, and it is significant for its reminder that personal jurisdiction must be examined at the beginning of every lawsuit and that contacts with Utah via the internet can be sufficient to establish personal jurisdiction. The court held that an out-of-state company subjected itself to personal jurisdiction in Utah by: (1) advertising on a website that it was available to serve Utah clients; (2) contracting with a Utah resident to determine the value of her Utah company using Utah-based data; (3) researching the company’s value; (4) receiving payment from the resident; and (5) sending the resulting appraisal to the resident.

In this case dealing with the common law public duty doctrine, the Supreme Court reversed in part prior case law and clarified that doctrine. Plaintiff was injured while she was a dancer on defendant college’s ballroom dancing team and was practicing with a partner. She sued the college, and the district court granted summary judgment on grounds that under the common law public duty doctrine, defendant college owed no duty of care to plaintiff because there was no special relationship. In Cope v. Utah Valley State College, 2012 UT App 319, the Court of Appeals reversed, finding there was a special relationship so that this exception to the public duty doctrine applied. In a significant decision, the Supreme Court upheld the Court of Appeals but for different reasons. The Supreme Court held that the doctrine does not even apply to ballroom dancing instruction because that instruction is not a public duty “owed to the general public at large” or in the instant situation to the college’s student body and faculty. In the decision, however, the Court examined the common law public duty doctrine in depth, and affirmed its continued applicability in Utah despite the later adoption of the Utah Governmental Immunity Act. It also reversed a prior public duty case, Webb v. University of Utah, 2005 UT 80, 125 P.3d 906, to the extent that Webb states or implies the public duty doctrine applies to acts of a public entity, finding that the doctrine applies only a public entity’s omissions.

Applying the mandate rule to an effort by insurers to file post-appeal motions for summary judgment raising additional policy-based challenges to the insured’s claim that the insurers had a duty to defend, the court held that the remand language, which “directed the district court ‘to address . . . in the first instance’ the additional arguments that were asserted by the Insurers in their original summary judgment motions but not resolved by the district court in granting those motions,” did not limit the district court from considering other arguments the insurers might have regarding the duty to defend.
This case involved whether language, and lack of language, in a Corporate Management Policy Manual can create an implied contract that “core” employees could not be terminated without cause and/or certain procedures. One policy in the manual designated “tactical” employees as at-will, but said nothing about core employees. Another policy contained language on performance improvement but did not state employees were at-will. Relying on language in Cabaness v. Thomas, 2010 UT 23, 232 P.3d 486, the Court of Appeals had reversed the district court’s grant of summary judgment to the employer and concluded the lack of language about core employees as well as the performance improvement language raised factual question about at-will status of a core employee such as plaintiff. In reversing the Court of Appeals and finding plaintiff’s employment was at-will, the Supreme Court examined prior cases, distinguished Cabaness, and once again reiterated the strong presumption of at-will employment in Utah.
The parties initially had a joint development agreement to develop three parcels in which they each owned partial interests. The parties could not agree on how to develop the property, so they settled their differences by having one party take Parcel A and the other party take Parcels B and C. With approval from the county, the owner of parcels B and C proceeded to develop its properties under a development plan that was previously approved for all three parcels. The owner of Parcel A (which by itself did not meet the requirements of the originally-approved plan) sued for breach of contract and other tort claims, claiming that she was entitled to her proportional share of the development rights because they were vested rights acquired through her deed for Parcel A. The Utah Supreme Court affirmed summary judgment dismissing the owner of Parcel A’s claims, holding that the conditional development rights granted by the county were not included in the deed’s general terms of conveyance giving a grantee the “rights and privileges” belonging to a piece of real property.
The Utah Court of Appeals held that strict compliance with the notice provisions of GRAMA is not required to put a requester on notice of the basis for which a government entity denies access to certain records. The plaintiff made a request to Salt Lake City for records of the city’s private counsel retained to advise upon matters related to water exchange agreements. The city denied the request asserting attorney - client privilege, but it cited the incorrect statute in its denial. The plaintiff appealed to the Salt Lake City Record Appeals Board, which determined that the plaintiff was entitled to the records because they were not protected under the cited provisions. The city appealed to the district court, which overturned the board, finding that the denial citing to the incorrect statute was sufficient to put the plaintiff on notice of the basis for the denial. The court of appeals affirmed, finding that while the statute says the denial “shall contain” citations to the appropriate GRAMA provisions, “the result will nevertheless effectuate the policy behind the statute.” Id. ¶ ¶ 22 - 23 (internal quotation marks and citation omitted).
The Utah Court of Appeals reversed the defendant’s conviction for attempted kidnapping based on trial counsel’s ineffective assistance of counsel in failing to object to the expert testimony of a detective. Although the court identified three ways in which trial counsel was ineffective, the most notable was the failure to object to the detective offering expert testimony on the same day that he had served as the escort and narrator for the jury’s view of the crime scene. The court explained that trial counsel “should have been sensitive to the impression this unusual situation might have made on the jury.” Id. ¶ 16. The dual role of the detective was an impermissible irregularity that might tend to influence the trier of fact. This was particularly true given that the judge told the jury that none of the witnesses would be at the jury view; the detective was the only witness privileged to be there; and the detective was able to answer the State’s questions during trial by referencing how things appeared earlier that day during the jury view, even though as the court-appointed guide for the jury view, he was supposed to point out landmarks impartially.
The defendant in this real-estate dispute made an offer of judgment under Utah Rule of Civil Procedure 68 to resolve the matter by transferring four feet of a disputed five-foot strip of land to the plaintiff. The defendant attempted to revoke the offer three days before the the deadline stated in the offer, but the plaintiff accepted the offer on the last day. The court affirmed the district court’s order compelling the defendant to transfer the four feet of land, holding that the Rule 68 offer was enforceable and irrevocable.
The Utah Supreme Court held that while it is error for a district court to accept a guilty plea without holding a preliminary hearing or obtaining an express waiver from the defendant of the right to a preliminary hearing, that error does not deprive the court of subject matter jurisdiction. The defendant, who entered a guilty plea without a preliminary hearing or having waived a preliminary hearing, argued that the failure of a district court to bind over a defendant following a preliminary hearing or express waiver of the right to a preliminary hearing is jurisdictional. The court rejected this argument for two reasons. First, the case on which the defendant relied was decided under a prior jurisdictional framework, and intervening large-scale structural changes to Utah’s district court system rendered it inapplicable. In July 1996, the legislature merged the former circuit court into the district court and gave the district court jurisdiction over all matters previously filed in the circuit court. Under the current framework, in criminal cases, the information is now always filed directly with the district court. Second, district courts have broad subject matter jurisdiction over criminal cases, and neither the Utah Constitution nor the Utah Code makes that jurisdiction contingent upon a preliminary hearing, its waiver, or a bindover order.
The petitioner sought to challenge a previous justice court lewdness conviction when that conviction led to subsequent lewdness charges being charged as felonies. The petitioner argued that he had been deprived of his right to appeal the original justice court decision under the standards set forth in Manning v. State, 2005 UT 61, 122 P.3d 628, and Utah Rule of Appellate Procedure 4(f). On a petition for extraordinary relief, the Utah Supreme Court held that the procedures set forth in Manning and confirmed in Rule 4(f) extend to de novo appeal of a justice court decision. The court disagreed with the district court’s conclusion that the petitioner had waived his right to assert the denial of his right to appeal by waiting too long. Because neither Manning nor Rule 4(f) contains a time limitation on a motion to reinstate an appeal, the petitioner could not be deemed to have forfeited his right to file such a motion by his delay in filing it. The court flagged the lack of time limitation as a concern for consideration by the advisory committee on the rules of appellate procedure, suggesting the committee could amend the rule to add a time limitation going forward.
”The [Inherent Risks of Skiing] Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child.” Id. ¶ 30. A ten-year-old boy was practicing skiing as a member of a racing club affiliated with the U.S. Ski and Snowboard Association (USSA). While skiing very fast, he hit a patch of artificial snow that was of a wetter consistency and fell, sustaining injuries. His parents filed a complaint on his behalf. At issue were (1) whether Utah’s Inherent Risks of Skiing Act (Act) contemplated the man-made snow that caused the boy’s crash and (2) whether his father could effectively waive liability for negligence on the boy’s behalf. The Act was a compromise tool to bring insurance premiums down for resorts and incentivize resorts to carry insurance. The court placed the “inherent” hazards the Act precludes from liability into two categories: (1) the type of hazards which skiers endeavor to encounter (powder, moguls, steep grades) and (2) the fact that those skiers do not want to encounter but cannot be alleviated by ordinary care (sudden changes in weather). Whether the artificial snow was within the second category was an issue of fact, and the test is whether the plaintiffs could prove the accident could have been prevented through the use of ordinary care. The liability waiver had two sub-issues: (1) whether the choice of law provision selecting Colorado law as governing was enforceable and (2) whether the Act allowed for a pre-injury waiver on behalf of a minor. The court found that the Restatement’s (Second) of Conflicts of Laws § 188(2) several factors governed this determination and that Utah has a clear interest in the case. Next, the court held that the policy behind the Act did not allow for a parent to waive a child’s pre-injury claim.
The plaintiff appealed the district court’s order granting summary judgment in favor of the defendant on the basis that the plaintiff’s claims required expert medical testimony. The Utah Court of Appeals affirmed, holding that the plaintiff was required to provide expert testimony from which the jury could find, without speculation, that he would have avoided the injuries he complained of if he had received the recommended treatment. The court additionally rejected the plaintiff’s argument that even if expert testimony were required, he could show causation through the physicians he designated as fact witnesses. Although a treating physician does not fall within the category of “retained or specially employed” expert witness and therefore does not need to comply with the expert report requirements of former Utah Rule of Civil Procedure 26(a)(3)(B) (2010), treating physicians must still be disclosed as expert witnesses under subsection (a)(3)(A) if they will provide opinion testimony based on their experience or training.
The Tenth Circuit addressed an issue of first impression in this circuit: whether an expert witness may offer expert opinion testimony under rule 702 of the Federal Rules of Evidence about the connection between so-called “narco saint” iconography and drug trafficking. The district court had allowed a government expert to offer opinion testimony about the connection between veneration of Santa Muerte and drug trafficking. The Tenth Circuit held that the district court abused its discretion in allowing this testimony. First, the district court failed to consider whether a prayer constitutes a “tool of the trade,” as the Tenth Circuit has used that phrase. Second, it allowed the expert to testify based on his experience without considering the relevance and breadth of that experience, thereby ignoring the “facts or data” requirements of rule 702. Finally, the district court failed to consider the manner in which the expert’s techniques and methodology led to his opinions, instead relying on other courts’ treatment of similar testimony in different contexts. Given the significance of the expert’s opinions to the government’s case, the Tenth Circuit held that the erroneous admission of the expert’s opinion testimony regarding Santa Muerte was not harmless.
In a divided opinion, the Utah Court of Appeals reversed a conviction for murder on an issue that was not preserved for appeal based on “exceptional circumstances.” On appeal, the court asked the parties for supplemental briefing to address for the first time whether a jury instruction “misstated the mens rea element of the lesser included offense” of homicide by assault, effectively removing this offense from the jury’s consideration. Id. ¶ 12. The court determined that while that issue could not be considered under the doctrine of ineffective assistance of counsel and was likely barred by invited error, it could nonetheless address the issue because the jury instruction presented an “astonishingly erroneous but undetected ruling” and it allowed the parties to provide supplemental briefing on the issue. Id. (citation and internal quotation marks omitted). On the merits, the court concluded that “[b]y defining homicide by assault as requiring the same mens rea as criminal homicide, [the instruction] essentially removed from the jury the ability to meaningfully consider the lesser included offense.” Id. ¶ 22. The court concluded the error was harmful “[g]iven how close the causation evidence is,” and that a conviction of the greater offense did not indicate the error pertaining to the lesser offense was harmless. Id. ¶ 27. Accordingly, the court reversed the conviction. A concurrence defended the majority’s consideration of the issue based on exceptional circumstances. In a dissent, Judge Bench, sitting as a senior judge, argued that any error in the instruction was invited and the other members of the panel “abandoned their adjudicative responsibilities and improperly bec[a]me advocates for a party.” Id. ¶ 41 (Bench, J., dissenting).
The Utah Supreme Court held that a BYU traffic cadet was an “employee” of Provo City, thus barring the plaintiff’s claims under the Governmental Immunity Act of Utah. The plaintiff was injured when his motorcycle collided with another vehicle after a BYU football scrimmage. He alleged a BYU traffic cadet under the supervision of a BYU peace officer was negligent. The trial court determined that the traffic cadet was an agent of Provo City and thus an employee under the Act. This meant that the plaintiff was required to file a notice of claim within one-year after the accident. Because he did not do so, the court dismissed his claim. The Utah Court of Appeals reversed, concluding that an agent will only be considered an employee under the Act if the governmental entity “exercises control” over the purported employee. The Utah Supreme Court reversed the Utah Court of Appeals, holding that while an agent is not necessarily encompassed within the Act’s definition of “employee,” the Act does not impose a requirement that an individual must be “under the control of the governmental entity.” Id. ¶ 12. Nonetheless, the supreme court determined that if a “right to control,” even without an exercise of that control, is present, an individual will qualify as an employee. With that determination, the supreme court held that the BYU traffic cadet was under the control of Provo City and thus an employee. It reasoned that sufficient control existed because the Provo City Code “strictly regulate[d]” how BYU could perform traffic control, permitted the City to discharge BYU at will, and because the city council could rescind or amend the statute from which BYU derived its authority at any time. A dissent suggested that the court’s holding could open the door for a number of private actors to be entitled to governmental immunity.
The Utah Supreme Court held that a reservoir is not a “natural condition” within the meaning of Utah’s Governmental Immunity Act, Utah Code section 63G-7-301(5)(k). It reversed the Utah Court of Appeals’ decision because the court of appeals had erred in interpreting “natural condition” too broadly. Because the Jordanelle Reservoir was designed and created by human activity, it is not “natural” and does not fall within the natural condition exception to the waiver of immunity. Justice Lee concurred in the decision, explaining that he would interpret “natural condition” as used in the Governmental Immunity Act based on its premises liability counterpart, in which a “natural condition” is a “condition of land [that] has not been changed by any act of a human being.” Id. ¶ 36 (internal citation omitted) (J. Lee concurring).
”[M]embers of a state legislature may have standing to sue in order to vindicate the ‘plain, direct and adequate interest in maintaining the effectiveness of their votes.’” Id. at 1163 (citation omitted). The Tenth Circuit Court of Appeals held that legislator - plaintiffs have Article III standing to bring suit to enjoin enforcement of an act that could violate the Guarantee Clause of the United States Constitution, withstanding the political question doctrine and challenges to prudential standing. Colorado’s Taxpayer’s Bill of Rights (TABOR) requires referendum approval of most tax increases. State legislators challenged the constitutionality of TABOR. The court only considered the issues of standing and the political question doctrine, avoiding the merits of the case. Article III standing requires that the plaintiff demonstrate (1) a concrete injury, (2) causation, and (3) redressability. The court found that “nullifying a legislator’s vote or depriving a legislator of an opportunity to vote is an injury in fact,” id. at 1166 (citation omitted), that the enforcement of the act is sufficient causation, and that barring enforcement is sufficient redressability. The court distinguished TABOR from situations where a legislator might have been “[s]eeking to obtain a result in a courtroom which he failed to gain in the halls of the legislature.” Id. at 1167 (citation omitted).
Plaintiffs were traveling on a stretch of highway that was under heavy construction. The construction resulted in lane closures and temporarily redirecting traffic. Plaintiffs’ vehicle drove off an unfinished embankment, and plaintiffs sustained injuries. There was a dispute as to whether the construction hazards were marked with signs at all. Following the close of discovery, the defense moved for summary judgment on the basis that the plaintiffs had not designated an expert to speak on some 1,000 pages worth of UDOT traffic control guidelines, and so could not establish for the fact-finder what the ordinary standard of care was for its negligence claim. The court of appeals held that an expert would not be required to determine that the ordinary standard of care was breached if there was a complete absence of signs, as was the plaintiffs’ position but that if there were signs, the plaintiffs would need an expert to establish an ordinary standard of care. The court reversed the summary judgment and remanded for further proceedings.
A legal immigrant to the U.S. faced deportation proceedings after pleading guilty to theft charges. He sought to avoid deportation by withdrawing his guilty plea through a petition under the Utah Post-Conviction Remedies Act (UPRA), or alternatively, through an extraordinary writ. The Utah Supreme Court denied the UPRA petition, founded on alleged ineffective assistance of counsel in making affirmative misstatements about the immigration consequences of the plea agreement because the man failed to preserve the argument for appeal by raising it in the district court. The court also affirmed denial of the extraordinary writ, holding that the Writ of Coram Nobis, used to correct fundamental errors in criminal proceedings, was not available because the UPRA provided an adequate remedy of which the petitioner had already availed himself.
The Tenth Circuit affirmed the denial of qualified immunity to prison officials in this Eighth Amendment case brought pursuant to 42 U.S.C. § 1983, where a prisoner with kidney stones alleged that he was not given prompt medical treatment and that his requests for medical attention were ignored. The court held that the prisoner’s several hours of untreated severe pain satisfied the objective element of the “deliberate indifference” test. It further held that the law was clearly established that a deliberate indifference claim arises when medical professionals deny care even though they are presented with recognizable symptoms that potentially create a medical emergency.
As a matter of first impression, the Tenth Circuit held that the stay and abeyance of a federal habeas petition, as approved in Rhines v. Weber, 544 U.S. 269 (2005), applies to mixed as well as unmixed petitions. However, because the petitioner’s claim of actual innocence would be a basis for equitable tolling of the federal limitations period, he was unable to establish the “good cause” required under Rhines. The court accordingly affirmed the district court’s denial of the stay and its dismissal of the petitioner’s habeas petition.
The Tenth Circuit held that the one-year statute of limitations for habeas petitions was tolled during the pendency of the petitioner’s state court application for post-conviction relief, even though it took the state court over eight years to resolve the petition. The fact that the petition could have been, but was not, dismissed on the ground of abandonment did not mean that the matter was not still pending for tolling purposes.
The Utah Court of Appeals reversed and remanded a summary judgment that was improperly granted to a creditor seeking a deficiency judgment on a debt secured by a deed of trust. The creditor sued for breach of contract but failed to present facts to establish that its claim was not barred by the one-action rule. The court held that the creditor was not entitled to pursue a breach of contract claim for a debt secured by a deed of trust unless it first established that it was an unsecured junior creditor having lost its security interest when a senior creditor foreclosed on the property.
As a matter of first impression, the Utah Court of Appeals adopted the Fifth Circuit’s rule that the discharge of a debtor in a reorganization proceeding does not affect a guarantor’s liability. The defendant - guarantors of a promissory note to the plaintiff bank - appealed the district court’s grant of partial summary judgment in favor of the bank. The guarantors argued that there were material facts in dispute regarding whether the guarantees were altered when the borrower created and commenced performance under a bankruptcy reorganization plan. Adopting the Fifth Circuit’s rule, the court rejected the guarantors’ argument that an existing dispute of fact precluded summary judgment because the issue was resolved as a matter of law.
The defendant appealed the district court’s issuance of an injunction against him, arguing that the court erred in concluding he promoted an abusive tax shelter through his Church of Compassionate Service. The court addressed, as a matter of first impression, the test used to determine whether a minister is acting as an agent of the church such that his earnings are tax-exempt. The court adopted a flexible approach under which courts may consider various factors pertinent to the relationships between the religious order and the minister, between the minister and the third-party employer, and between the employer and the order. In doing so, it rejected the requirement imposed by some courts, of a contractual relationship between the secular employer and the religious order. The court additionally rejected the defendant’s argument that the injunction was improper because he did not believe that his representations were false or fraudulent. The test for injunctive relief under § 7408 is satisfied if the defendant had reason to know his statements were false or fraudulent, regardless of what he actually knew or believed.
This appeal from a default judgment was dismissed on procedural grounds, and the default judgment was allowed to stand because the appellants chose the incorrect vehicle for relief. The controversy arose when the United Effort Plan Trust (UEPT) sued Hildale and a co-defendant (collectively, Hildale) seeking a writ of mandamus to compel subdivision of UEPT property within city limits. Hildale did not respond, and a default judgment was entered. Hildale then filed a rule 60(b) motion to set aside the default judgment and, while that motion was pending, filed a direct appeal of the default judgment. The district court denied the rule 60(b) motion, and Hildale did not appeal that denial. The court dismissed the direct appeal of the default judgment because Hildale relied exclusively on rule 60(b) in the appeal. The Utah Supreme Court explained that its review on a direct appeal of the default judgment was necessarily limited to whether the prerequisites for entry of default were satisfied. Hildale should have appealed the district court’s denial of the rule 60(b) motion.
The plaintiff in this negligence action was injured in a head-on car collision while driving through a Utah Department of Transportation (UDOT) work zone that was limited to one lane of traffic. A UDOT worker controlling access to the lane had signaled the plaintiff to enter, and she was struck by a driver travelling in the opposite direction who had also been signaled to enter by the UDOT worker on the other end of the lane. The district court dismissed the case, finding that UDOT was exempt from liability under the licensing exception to the waiver of governmental immunity found in Utah Code section 63G-7-301(5)(c), which provides that immunity is not waived for injuries resulting from “the issuance, denial, suspension or revocation of . . . any permit, license, certificate, approval, order, or similar authorization.” Utah Code Ann. § 63G-7-301(5)(c) (LexisNexis 2011). The Utah Court of Appeals reversed and remanded for further proceedings, holding that UDOT had failed to demonstrate that the employee’s signal to the plaintiff possessed the level of formality necessary to trigger the licensing exception.

On certiorari, the Utah Supreme Court considered whether a panel majority of the Utah Court of Appeals erred in applying the “marital foundation” approach to determine the amount of a military pension that constitutes marital property. The Utah Supreme Court addressed, as a matter of first impression, how to determine the employee spouse’s monthly benefit subject to equitable distribution. The court considered the two approaches at the ends of the spectrum: the bright line approach and the marital foundation approach. Under the bright line approach, post-divorce increases in pension benefits are treated as post-divorce earnings and categorized as separate property. The marital foundation approach, on the other hand, treats all post-divorce increases in marital pension benefits as marital property. Given the district court’s role of making an equitable distribution of property, the court refused to adopt either approach, instead adopting a context-specific approach. Under this approach, district courts should evaluate all relevant factors and circumstances in making a determination as to the most equitable distribution of pension benefits.

In this negligence action, the surviving family of a man killed in a car accident sued the man’s co-worker who was driving the vehicle. The accident occurred outside of normal work hours, when the man and his co-worker were travelling from one work site to another in a company vehicle. The co-worker’s employment contract also stated that he would not be paid for such travel. Despite these facts and the general rule that travel to and from work is not considered to be within the scope and course of one’s employment, the district court found that the “special errand” exception applied and therefore dismissed the suit under the Workers’ Compensation Act’s (WCA) exclusive remedy provision. The Utah Supreme Court affirmed, explaining that although an employment contract is relevant in defining the parameters of the employer - employee relationship, it is not determinative of whether a particular task arises out of or is performed in the course of a worker’s employment for the purpose of determining the existence of coverage under the WCA. Instead, the actual facts and circumstances surrounding the task must be examined. The trip met the requirements of the special errand exception to the going-and-coming rule (therefore barring plaintiffs’ claims under the exclusive remedy provision) because of the unusual, onerous, and sudden nature of the travel.
The Utah Supreme Court held that a petition for review of an administrative determination of the Utah Board of Water Quality (BWQ) was untimely, even though filed within thirty days of a 2011 decision, because in substance it was a collateral attack of an earlier 2008 decision. In 2008, the Utah Division of Water Quality (DWQ) granted a discharge permit to U.S. Oil Sands, which was not challenged within thirty days. In 2011, U.S. Oil Sands informed DWQ of proposed changes, which DWQ determined did not affect the original permit. Living River then intervened and sought a timely review of that decision from an administrative law judge (ALJ), which focused on the basis of the 2008 decision. The ALJ recommended that both permit decisions stand, and BWQ approved. On appeal, the court held that it lacked jurisdiction because the substance of the petition was a collateral attack on the 2008 permit, rather than an attack on the 2011 reaffirmance of the permit, which would have been permissible.
This appeal addressed whether a claimant in a boundary by acquiescence case must show active use on both sides of the disputed boundary in order to satisfy the occupation element of the doctrine. The doctrine of boundary by acquiescence allows a landowner to establish a property line that differs from the legal description of her property by satisfying four elements: (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for a long period of time; (4) by adjoining landowners. The Utah Court of Appeals held that a claimant satisfies the occupation element when her use of land up to a visible line would put a reasonable party on notice that the given line was being treated as a boundary between the properties.
After affirming the district court’s judgments in the plaintiff’s favor in all respects, the Utah Court of Appeals considered the plaintiff’s request for reasonable attorney fees under rule 24 of the Utah Rules of Appellate Procedure. The court awarded fees to the plaintiff, holding that the defendants’ appellate brief failed in several respects to meet rule 24’s requirement that briefs be “presented with accuracy” and “free from burdensome . . . matters.” Id. ¶ 48 (citation and internal quotation marks omitted). These violations “placed a tremendous burden of factual and legal research” on the plaintiff, entitling it to reasonable attorney fees. Id. (citation and internal quotation marks omitted).
A woman sued her plastic surgeon after he gave before and after photos of her to a television news reporter and the photos were broadcasted on television and the Internet. The district court granted summary judgment to the plastic surgeon, based partly on the conclusion that the photographs did not reveal private facts about the woman because they showed portions of her body that she had previously disclosed while wearing a bikini in public. This was based on an extension of the Restatements (Second) of Torts, which states that “there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye.” Id. ¶ 26 (citation and internal quotation marks omitted). The Utah Court of Appeals reversed, holding that the district court stretched the Restatement too far. Although the woman may have been willing to make a public fact of what she looked like in a certain bikini on a certain day in a certain context, by doing so she did not lose her ability to argue that whatever parts of her body that bikini revealed were private facts on different days in different contexts. The court reversed summary judgment and remanded for further proceedings.
Clarifying the doctrine of apparent authority in the context of LLCs, the Utah Court of Appeals determined that regardless of whether an individual has actual knowledge of an LLC manager’s authority to bind the LLC, notice is presumed if limitations on a manager’s authority are contained in the LLC’s articles of organization on file with the State. As applied, one manager of an LLC purported to enter into a long-term lease with a tenant, but the other manager did not sign the lease. The LLC’s articles of organization required the approval of both managers to bind the LLC, thus limiting the authority of a manager to act unilaterally. The LLC later sought to invalidate the lease because it was only signed by one manager. At trial, the tenant moved for summary judgment on the grounds of apparent authority, or alternatively, ratification. The trial court agreed with the tenant. The Court of Appeals reversed. The Court noted that, pursuant to Utah Code § 48-2c-121(1), articles of organization filed with the state “constitute notice to third persons...of all statements set forth in the articles of organization.” Thus, regardless of whether the tenant actually knew of the limitations on the manager’s authority, such knowledge was presumed by statute, and there could be no apparent authority. Moreover, because material issues of fact existed on the issue of ratification, the Court reversed the grant of summary judgment.
The Tenth Circuit dismissed the petition for review of the EPA’s rejection of a revised Clean Air Act plan for lack of jurisdiction. The petitioners failed to file within 60 days of the date the EPA’s action appeared in the Federal Register, as required by statute. This failure was the result of the EPA’s initial failure to alert the parties to the 60-day deadlines, as is its usual practice, which led the EPA to, more than a month later, inform the parties that they would have 60 days from that date to file a petition for review. Relying on this statement, the parties filed their petition within the extended 60-day period, but after the true 60-day period had run. The Tenth Circuit rejected the parties’ (including the EPA) argument that the EPA had, through its statement, implicitly changed the date of its decision. Under its regulations, the EPA’s action is considered the date of publication unless the Administrator otherwise explicitly provides in a promulgation, approval, or action. There was no such explicit change in this case. Although recognizing the inequity to the petitioners created by the application of the jurisdictional bar, the Tenth Circuit held that it cannot expand its jurisdiction to avoid hardships even when they are inequitable.
In this personal jurisdiction case, a Utah lender obtained an opinion letter from a New Hampshire law firm. The lender later sued the law firm in Utah federal court. Relying in part on Walden v. Fiore, 134 S. Ct. 1115 (2014), the Tenth Circuit held personal jurisdiction cannot be based solely on interaction with a “plaintiff known to bear a strong connection to the forum state.” Sending an opinion letter to a Utah address and participating in telephone communications with a Utah resident were also insufficient.
Defendant appealed a denial of a motion to suppress evidence after a GPS device was placed on an accomplice’s car and resulted in the seizure of evidence from that car. The Tenth Circuit determined he did not have standing to challenge the validity of the seaach because he did not own or use the car regularly and did not have a reasonable expectation of privacy in the car.
In this per curiam opinion, the Utah Court of Appeals dismissed the appeal for lack of jurisdiction because rule 4(c) of the Utah Rules of Appellate Procedure applies only to an order that, once entered, will become final and appealable. The rule does not apply to perfect a notice of appeal filed prior to the district court’s entry of a written order in which it certified the order for interlocutory appeal. Although in its oral ruling, the district court expressed its intention that the order dismissing some, but not all, of the plaintiff’s claims would be appealable, this did not satisfy the requirements of rule 54 for certifying an order for interlocutory appeal.
A foreign corporation filed suit in Utah asserting the rights of a defunct Utah company (as its assignee) against the company’s former directors, all of whom reside outside of Utah. The district court dismissed the case on the bases of forum non conveniens and improper venue, and the court of appeals affirmed. The court reversed and remanded, concluding that the district court should have given deference to the foreign corporation’s choice of forum in the forum non conveniens analysis because it was asserting a Utah company’s rights in Utah. The Utah Supreme Court also adopted the minority position from other jurisdictions and held, as a matter of first impression, that a plaintiff’s claim that a contract was entered into fraudulently is sufficient to render a forum selection clause in the contract unenforceable. The court instructed the district court on remand to first determine whether the forum selection clause in a contract with one of the defendants is enforceable, and then to perform a forum non conveniens analysis under the correct standard.

The Tenth Circuit rejected the defendant’s argument that the sentencing guidelines’ use of the term “imprisonment for a term exceeding one year” impermissibly deviated from 18 U.S.C. § 921(a)(20)’s definition of “crime punishable by imprisonment for a term exceeding one year.” The latter expressly excludes convictions that have been expunged, or set aside, or for which the defendant has had his civil rights restored; whereas the former includes such convictions. The Tenth Circuit held that the sentencing guidelines’ definition and the statutory definition have different purposes and need not be consistent.

Adopting the majority rule with respect to the admission of conditionally relevant evidence, the Utah Supreme Court upheld the admission of prior child abuse evidence. The defendant was charged with the murder of her son “after his back was bent backwards.” The State sought to introduce evidence of a prior similar injury, which the court admitted over objections that it did not satisfy rule 404(b), that it was irrelevant, and that the probative value was substantially outweighed by the danger of unfair prejudice. The court clarified that to admit evidence of prior bad acts for the purpose of identity under rule 404(b) there must be “‘(1) a very high degree of similarity between the charged and uncharged acts, and (2) a unique or singular methodology.’” Id. ¶ 15 (footnote citation omitted). Finding these criteria satisfied, the court then addressed whether the evidence was relevant, noting that it had not been definitively established that the defendant committed the prior abuse. On this point, the court acknowledged that under rule 104(b), the admissibility of prior abuse was conditional on whether the defendant committed the abuse, i.e., conditional relevance. The court explained that under rule 104(b), “it is the duty of the court to decide whether there is sufficient evidence upon which the jury could make such a determination” that the “condition of fact” is satisfied. Adopting the majority rule, the court held “that a preponderance of the evidence is required to admit evidence of prior bad acts.” Id. ¶ 2. Next, the court held that the prior evidence of abuse was not substantially outweighed by the danger of unfair prejudice given the similarity of injuries, short length of time between each injury, and the importance of the issue to the case.
The Court affirmed summary judgment for the plaintiffs on their claims that the trust deed encumbering their property was invalid, that the defendant had slandered their title, and that the defendant was liable for damages under Utah Code § 57-1-38(3) and the trust deed. The Court clarified that in order to satisfy the malice element of a slander of title claim, the plaintiff must prove that the defendant had actual knowledge that the statements at issue were false. The Court then considered whether the district court erred in trebling the attorney fee award under Utah Code § 57-1-38(3)(a), which provides for “treble actual damages incurred . . . including all expenses incurred in completing a quite title action.” The Court rejected the plaintiffs’ argument that “all expenses incurred” includes attorney’s fees. Such an interpretation would render subsection (3)(b), which provides for attorney’s fees, superfluous. Finally, as a matter of first impression, the Court held that the plaintiffs were entitled to attorney’s fees even though a non-party title insurance company had paid all of the fees. To hold otherwise would give the nonprevailing party an undeserved windfall.

The Utah Supreme Court’s Ethics and Discipline Committee’s private admonishment of an attorney for failing to obtain informed consent for third-party payment of legal fees under rule 1.8(f) of the Utah Rules of Professional Conduct was reversed as unsupported by substantial evidence. While the court acknowledged substantial evidence would support a finding that no written consent was obtained, it held that “informed consent” may be oral. Because the Office of Professional Conduct bore the burden of showing noncompliance, its failure to inquire as to whether oral consent was obtained warranted reversal.

The defendant, who had pled guilty to unlawful sexual contact with a minor, appealed the denial of his motion to set aside his guilty plea. He had argued that his plea was not knowing and voluntary or that he received ineffective assistance of counsel because neither the court nor his lawyer had informed him of the sex offender registration requirement associated with his plea. The Utah Supreme Court rejected the defendant’s argument that the United States Supreme Court’s opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), abolished the distinction between direct and collateral consequences in contexts outside of deportation. The court then held that the sex offender registration requirement is a collateral, not direct, consequence of the defendant’s plea. Therefore, neither the court nor the defendant’s lawyer was required to advise the defendant of the registration requirement.

A man with a knack for “obtaining” vehicles without paying for them was convicted of aggravated robbery and theft by receiving stolen property in connection with two vehicles in his collection. The first was a car he obtained from a rental company in Florida in 2007, which he used as his personal car for several years until he had put approximately 100,000 miles on it. The second was a BMW that he obtained after a test drive with a salesman from the dealership, when he dropped the salesman off on the side of the freeway after showing him his gun. The Utah Court of Appeals affirmed the aggravated robbery conviction but remanded the theft conviction for a new trial because the State supported that charge with hearsay from the rental company’s manager and from the National Crime Information Center database.
In this administrative appeal, the Utah Court of Appeals declined to disturb the decision of the Workforce Appeals Board that a man working for a delivery business was an employee, and not an independent contractor, and was therefore eligible for unemployment benefits under Utah’s Employment Security Act. The company hired the man under an independent contractor agreement that stated that he would function as an independent contractor. The Board concluded, however, that under the totality of the circumstances, the man was an employee because he was not independently established in the delivery business before starting work with the company.

In the context of underinsured motorist (“UIM”) coverage, the Tenth Circuit held that UPS was not a self-insurer under Utah law, despite the fact that UPS maintained a “fronting” insurance policy where its deductible equaled its policy limits, essentially limiting the insurer’s obligation to pay any claim unless UPS was insolvent. The heirs of a deceased UPS driver argued that this type of policy constituted self-insurance because they could not gain UIM coverage from UPS if UPS was self-insured. The Court first held that the issue of whether a company is self-insured is an issue of law, not fact, an issue both parties missed. Next, the Court held that even though UPS’s deductible equaled its policy limits, it still qualified as an insured under Utah law. In reaching this conclusion, the Court looked to the definition of insurance under Utah Code § 31A-1-301(82), and concluded that because the agreement between UPS and its insurer involved “an arrangement for the distribution of a risk,” it qualified as insurance. Accordingly, because status “as an ‘ insured’ and ‘ self-insurer’ are mutually exclusive,” UPS could not be considered a self-insurer because it was an insured under its “fronting” policy.

In this dispute over $110,000 of cabinetry work, the Court interpreted the statutory scheme establishing the Residence Lien Recovery Fund and determined that claims for recovery against the fund are assignable.
Affirming the denial of a motion to suppress, the Tenth Circuit held that the presumption regarding a parent’s authority to consent to a search on his or her child’s behalf applies equally to a stepparent.
The trial court granted summary judgment to Orem City on various claims related to a land sale contract. The Court of Appeals held material issues of fact existed on the contract issue and that the contract contained ambiguities. The Court also held that while a party is free to alternatively plead equitable and contract claims at the pleading stage, if the trial court eventually determines that a contract covers the issues subject to the equitable claims, the equitable claims are precluded. Thus, while the trial court arguably erred in dismissing claims for unjust enrichment and restitution on a motion to dismiss, the error was harmless where the issue was covered by a valid contract.
The plaintiff amended his complaint to name additional defendants in this negligence action a year and half after the statute of limitations expired. He argued that his new claims related back to the date of the original complaint under Utah R. Civ. P. 15(c) because one of the original defendants was an agent of the new defendants, and therefore his knowledge of the claim should be imputed to establish the actual notice and identity of interest. The Court affirmed summary judgment for the defendants dismissing the claims, noting that although the original defendant was the agent of the new defendants at the time of the underlying accident, there was no evidence that he was an agent at the time the complaint was filed.
Several investors sued their financial advisors for breach of fiduciary duty and violations of state securities laws. The district court granted the financial advisors’ motion and dismissed the claim for failure to join other financial advisors who were also involved, concluding that they were necessary and indispensable parties under Utah R. Civ. P. 19. The Court reversed, explaining that joint tortfeasors are not necessary or indispensable parties, and that it is not necessary to name them all in a single lawsuit if the plaintiff has not asserted claims against the unjoined parties.
In his second of three challenges to his conviction, the defendant argued the trial court erred in proceeding to trial after one of his defense witnesses failed to appear. The Court of Appeals held that the defendant had failed to preserve this claim. The defendant failed to request a continuance or otherwise ask the court to procure the witness’s appearance. The trial court’s statement that “[W]e’ll just go on with the trial, it is what it is . . . , it happens” was insufficient to establish that such motions would have been futile. This statement was in response to defense counsel’s statement that he was “in a bit of a quandary” about what to do, not in response to a motion or a request to continue.
The Court affirmed the district court’s denial of a motion to suppress, based on its determination that the language in Utah’s eWarrant application system satisfies the Utah and U.S. Constitutional requirements that a warrant be supported by an “Oath or affirmation.”
In a significant departure from prior case law, the Utah Supreme Court explained that the marshaling requirement for challenging a factual finding is no longer grounds for a procedural default on appeal, but is rather “a natural extension of an appellant’s burden of persuasion.” The Court emphasized the continuing importance of marshaling, explaining that a “party who fails to identify and deal with supportive evidence will never persuade an appellate court to reverse under the deferential standard of review that applies to such issues.” However, the Court explained that appellants are not required to play “‘ devil’s advocate’” and present “‘ every scrap of competent evidence’ in a ‘ comprehensive and fastidious order.’” Rather, appellants and the courts should focus “on the merits, not on some arguable deficiency in the appellant’s duty of marshaling.” On this basis, the Court rejected the state’s argument in a criminal appeal from charges of kidnapping that the defendant’s failure to marshal in itself warranted a rejection of the appeal. Nonetheless, the Court ruled sufficient evidence was presented to convict the defendant, even though the State’s evidence was entirely circumstantial.
The Utah Supreme Court reversed a defendant’s conviction for various charges on double jeopardy grounds because the legal necessity for a mistrial “was not established on the record.” During the first trial, the defendant’s wife brought him a suit jacket that contained a pocket knife, and the trial court excluded her from trial as a result. After the jury was sworn, defense counsel requested that defendant’s wife be allowed to reenter the courtroom, to which the state objected. The trial court allowed the wife to return. After taking a recess, the judge explained that the knife incident “was affecting her more than she had previously thought,” and she declared a mistrial, despite objections from the State and the defense. At a second trial, the defendant moved to dismiss the case on double-jeopardy grounds, but the court rejected this claim, and he was convicted. On appeal, the Utah Supreme Court reversed, holding that after a mistrial a second trial may only proceed without violating the Utah Constitution if “(1) the defendant consents to the mistrial or (2) there is ‘ legal necessity’ for the mistrial.” Where the defendant does not consent, “legal necessity is established only if a mistrial is the ‘ only reasonable alternative to insure justice under the circumstances.’” A mistrial is considered the only reasonable alternative only if (1) upon a careful evaluation the trial judge considers alternatives to mistrial and concludes no alternative exists and (2) the trial court establishes a factual record for its determination of legal necessity. Because the trial court did not consider alternatives to a mistrial and did not create a record to establish there was no reasonable alternative, the Utah Supreme Court could not decide whether the mistrial was legally necessary. Accordingly, the Court held the first trial served as an acquittal, and the second trial violated double-jeopardy.
The Tenth Circuit dismissed the defendants’ interlocutory appeal for lack of jurisdiction. Defendants appealed the district court’s denial of their motion to dismiss the indictment and suppress grand jury testimony, which was based on the Fifth Amendment right to be indicted by a grand jury, the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to effective assistance of counsel. The Tenth Circuit held the collateral order exception to the final judgment requirement was inapplicable to the district court’s order. Only the third Cohen factor - whether the order would be effectively unreviewable on an appeal from final judgment - was at issue. The district court’s order did not fall within the three categories of criminal cases in which the Supreme Court has applied the collateral order exception: appeals from (1) motions to reduce bail; (2) motions to dismiss based on double jeopardy grounds; and (3) motions to assert immunity under the Speech or Debate Clause of the Constitution. Nor did the order otherwise satisfy Cohen’s “effectively unreviewable” requirement. The defendants’ Fifth Amendment challenges would be reviewable on direct appeal, and their Sixth Amendment challenge could be brought in a habeas petition for post-conviction relief under 28 U.S.C. § 2255.
The Tenth Circuit had previously granted the pro se petitioner a certificate of appealability on the question of whether the petitioner’s ongoing registration obligations under Colorado’s Sex Offender Registration Act satisfy the custody requirement of 28 U.S.C. § 2254. The court, as a matter of first impression, held that Colorado’s sex offender registration requirements are collateral consequences of the petitioner’s conviction and not restraints on his liberty. In doing so, the Tenth Circuit joined other circuits that have held sex registration requirements do not satisfy the custody requirement of § 2254.
In this quiet title action, the district court granted defendant’s Rule 12(b)(6) motion to dismiss after considering a deed and note that plaintiff had failed to attach to the Complaint. The Court affirmed, explaining that the district court’s consideration of the deed and note did not require the motion to be converted into one for summary judgment, because those documents were referred to in the Complaint and were central to plaintiff’s claim.
In a per curiam opinion, the Court of Appeals affirmed the district court’s denial of a Rule 60(b)(1) motion. The respondent had asserted that the district court’s underlying order was based on a mistake of law. The Court of Appeals held that the proper avenue to raise such a challenge is an appeal or a motion for a new trial. Mistakes of law are excluded from the narrow realm of “mistakes” recognized in Rule 60(b)(1), so the motion did not toll the time for appealing the underlying order.
The Utah Court of Appeals clarified that if an expert witness is appointed by a juvenile court, the juvenile court is the proper forum to decide the reasonableness of the expert’s fees and which party is responsible for paying such fees. Specifically, in a termination of parental rights proceeding, the juvenile court appointed an expert custody evaluator and ordered Uintah County to pay the expert’s fees. The County did not object at the time, but after trial challenged the reasonableness of the expert’s fees in the juvenile court. The expert later filed suit against the County in the district court to recover his fees. The County argued the proceeding should be heard in the juvenile court, but the district court disagreed and ordered the County to pay the expert’s fees. On appeal, the Court of Appeals sided with the County, holding that “the court that heard the underlying case and appointed the expert in the first place was the appropriate court to determine the reasonableness of the work.”
The Utah Supreme Court addressed for the first time the conditions under which an estranged spouse may burglarize the family home in the absence of a court order excluding him/her. A spouse had been removed from the home by police and was prohibited from returning under a protective order. Several weeks after the protective order expired, the spouse returned to the home and was found by his 16-year-old son and wife, brandishing a rifle. The court held that the proper focus of the inquiry was not on who held title to the home, but was whether the spouse/cotenant had voluntarily surrendered his possessory rights to the family home prior to his entry, creating an implied-in-fact contract relinquishing possession. Relying in part on the language of Utah Code section 30-2-10, the court held that such a relinquishment could only be achieved through mutual consent, and a spouse/cotenant cannot unilaterally revoke the other spouse/cotenant’s possessory right to the home. The court affirmed the consideration of several conditions in determining whether such an implied-in-fact contract exists from the totality of the circumstances, including whether the spouse/cotenant: voluntarily moved out and established a separate residence; removed his personal belongings; willingly relinquished keys; and entered through surreptitious or violent means, supporting an inference that the spouse/cotenant understood he had relinquished possession. The court upheld the magistrate’s determination that the State had presented insufficient evidence at a preliminary hearing to support any such relinquishment in this case because there was no evidence that the spouse voluntarily moved out of the home, and the fact that the removed spouse did not try to reestablish residence in the home for three weeks after expiration of the restraining order was insufficient by itself to support an inference of mutual agreement to relinquish possession. The court concluded that affirmative acts are more indicative of an implied agreement as opposed to failures to act.
The Utah Supreme Court reaffirmed the “wide latitude to trial counsel to make tactical decisions” in representing a criminal defendant when it reversed a decision by the Utah Court of Appeals. Id. ¶ 23. The Utah Court of Appeals had reversed the conviction of a doctor on a lesser-included misdemeanor charge of sexual battery against a patient on the ground of ineffective assistance of counsel. The Utah Court of Appeals determined that defense counsel should not have allowed evidence of similar charges by other patients against the doctor to come in because the trial judge had ruled before trial that the evidence was inadmissible unless defense counsel opened the door. Describing the trial proceedings in some detail, the Utah Supreme Court observed that defense counsel had not only opened the door to this evidence, defense counsel consciously made this evidence part of a legitimate, and ultimately effective, strategic decision to undermine the veracity of the victim’s accusations against the doctor. Specifically, defense counsel raised the other instances in opening statement by saying that the victim brought her allegation only after learning from a fellow inmate that other patients were accusing the doctor of inappropriate touching. Defense counsel then cross examined the detective who interviewed the victim after she brought her allegation, suggesting that he readily accepted her accusations without any scrutiny because “you had those other allegations and you had done all that work of investigation.” Id. ¶ 10. Defense counsel continued this theme in closing argument, contending the case came down to “whether or not someone that knew of Dr. Bedell’s plight would use that to their own advantage when nothing happened to them.” Id. ¶ 14. The Utah Supreme Court concluded that defense counsel chose to use this evidence and did not render ineffective assistance by not objecting to the State’s use of that evidence. Because the jury acquitted the doctor of two charged felonies but convicted him on the misdemeanor charge, the court surmised, defense counsel’s strategy was not only legitimate, but likely advantageous to the client.
The Utah Supreme Court addressed the constitutional question of whether site-specific rezoning is administrative or legislative action, and consequently whether a site-specific rezoning decision is subject to a citizen petition to place the issue on the ballot for referendum. The citizens of Saratoga Springs sought to place the city’s rezoning decision on the ballot after the city granted a landowner’s request to rezone its property to allow for development of the land into mansion-style town homes. The landowner sued and obtained an injunction from the district court against the city. The Utah Supreme Court granted a petition for extraordinary writ from the citizens and directed the city to place the referendum on the ballot. In doing so, the court overruled its prior precedent and held that specific rezoning decisions are legislative action, subject to referendum. The court explained that specific rezoning decisions are legislative actions because they create new law that calls for the broad weighing of all relevant public policy considerations. They do not involve the application of existing law to a new set of facts such as granting a variance or conditional use permit, which are recognized administrative actions.
The Utah Court of Appeals addressed whether the common area of a planned unit development could be considered an “insured location” under a homeowners insurance policy. An individual was injured when the ATV he was riding tipped over and landed on his leg. The individual sued the ATV’s owner, who made a claim against her homeowner’s insurance policy. The insurance company denied coverage on the ground that the ATV accident and resulting injuries were subject to the policy’s motor vehicle exclusion. The trial court disagreed, concluding that the motor vehicle exclusion only applied to ATV’s operated “while off an insured location.” Id. ¶ 4. Because the accident occurred in a common area of the planned unit development, the trial court reasoned this was “on” an insured location, thus precluding application of the exclusion. The court of appeals agreed. Relying on authority from other states, the court found the insured’s ownership interest in the common area determinative. Moreover, it concluded the definition of “insured location,” which included “‘any premises used . . . in connection with’ the residence premises,” id. ¶ 16, was susceptible to several interpretations. Because that definition was contained in exclusion, the court strictly construed it against the insurer and liberally construed the policy in favor of the insured. The court concluded “the common area [was] an insured location,” thus triggering coverage. Id. ¶ 24.
The Tenth Circuit addressed the operation of a “safe harbor” provision exempting from the trustee’s power of avoidance, certain transfers to religious organizations. Under § 548 of the bankruptcy code, the trustee may avoid transfers of property in the two years preceding a bankruptcy filing where the debtor “received less than a reasonably equivalent value in exchange” or where the debtor was insolvent or made insolvent by the transfer. An exemption exists for donations to religious or charitable organizations, so long as the contribution does not exceed 15% of the debtor’s gross adjusted income (GAI). The narrow issue before the court was whether the trustee could “recover the entire amount of a charitable contribution if it exceed[ed] 15% of GAI or only the amount in excess of 15%.” Id. at 1272. The court determined “the only reasonable reading of the statute is that the amount of the transfer to be avoided is the entire amount. Nothing in the plain language of the statute indicates that, if the transfer exceeds 15% of GAI, only the portion exceeding 15% is avoidable.” Id. at 1274.
The Utah Supreme Court held, with Justice Lee dissenting from this portion of the decision, that an appellate court may not review an order granting a new trial where a jury did not enter a verdict in the first trial. Following the first trial on the city’s alleged failure to repair a sidewalk, the trial court granted a directed verdict to the city, but thereafter granted the sidewalk patron’s motion for new trial. A second trial occurred, after which a jury returned a verdict against the city. The court held that for the same reasons it declines to review denials of summary judgments granted on evidentiary grounds, it declined to review the grant of a new trial because the jury did not enter a verdict after the first trial. Thus, there was no danger that the trial court granted a new trial in order to negate a result it simply disagreed with in derogation of the litigants’ rights to a trial by jury. Instead, the grant of a new trial in these circumstances was akin to a reconsideration of the trial court’s prior directed verdict ruling, placing the litigants in the same procedural position as if the prior aborted trial had never occurred. Because the litigants had a full and fair opportunity to litigate the facts in the second trial, the court held that it need not evaluate the sufficiency of the evidence at the truncated first trial.
The Tenth Circuit rejected the minority interpretation of 17 U.S.C. § 507(b)’s limitation period for copyright infringement claims, which adopts a “continuing wrong” exception. Nothing in the language of § 507(b) supports a special limitation for continuing wrongs. The court further reasoned that the majority accrual rule and tolling principles adequately protect copyright owners’ rights in such situations because under the majority approach, the limitation period does not begin to run until the plaintiff knows or has reason to know of the infringement. Accordingly, the “continuing wrong” doctrine is unnecessary in the copyright infringement context.
The Utah Court of Appeals determined the Labor Commission Board of Appeals had applied the wrong legal standard in evaluating the employee’s claim for permanent total disability benefits. The Board interpreted the standard for permanent total disability benefits set forth in United Park City Mines Co. v. Prescott, 393 P.2d 800 (Utah 1964), to mean that because the employee was able to return to work after her original injury, she was forever barred from bringing permanent total disability claims based on that accident. The court held that return to the workforce does not preclude claiming permanent total disability based on an original compensable injury. Rather, the question of additional compensation hinges on whether the subsequent injury was a natural result of the original compensable injury.
In answering a certified question from the Tenth Circuit, the Utah Supreme Court held that when an intervening change in law “extinguishes a previously timely cause of action,” the doctrine of equitable tolling will “afford the plaintiff a reasonable period of time after the change in law to bring his claim.” Garza, 2013 UT 66, ¶ ¶ 14 - 15. Previously, the court only applied equitable tolling in cases where the “discovery rule” was implicated. Id. ¶ ¶ 10 - 11. The court explained that this was not because equitable tolling was limited to such cases, but because there is a high bar that litigants must meet in order to obtain such “extraordinary relief.” Id. ¶ 10. In this § 1983 case, the court held that failure to apply equitable tolling “would be manifestly unjust because [the plaintiff] would lose his cause of action due to circumstances beyond his control and through no fault of his own.” Id. ¶ 12.
The Utah Court of Appeals held that a challenge to a municipal land use ordinance is timely when filed within thirty days after the ordinance becomes effective. The Municipal Land Use, Development, and Management Act provides that a challenge to an ordinance must be filed no later than “thirty days after the enactment.” Utah Code Ann. § 10-9a-801(5) (LexisNexis 2012). The court rejected a city’s argument that “enactment” meant passage by the city council, concluding that the term means “all necessary steps to give an ordinance the validity of law.” Olsen, 2013 UT App 262, ¶ 13.
The Tenth Circuit discussed whether the work-product doctrine contained in Rule 26(b)(3)(A) extends to a party’s expert witness. It concluded that neither the plain language of Rule 26(b)(3)(A) nor traditional understandings of the work-product doctrine supported the respondent’s assertion that expert materials are protected under Rule 26(b)(3). The court then rejected the contention that the 2010 amendments to Rule 26(a)(2) and (b)(4) restored broad protection to expert materials. Rule 26(b)(3) does not provide protection for documents provided to an expert by a party. Rather, Rule 26(a) requires disclosure of “any material considered by the expert, from whatever source, that contains factual ingredients.” Id. 1187 (internal quotation marks and citation omitted). The only exceptions to disclosure are those expressly set forth in Rule 26(b)(4) - draft reports and attorney - expert communications.
The defendant was convicted on two counts of aggravated murder and two counts of attempted murder and sentenced to life without parole. On appeal, the Utah Supreme Court determined that the trial court erred in refusing to allow a defense expert to testify about false confessions. The defendant sought to introduce such testimony arguing that juries “do not understand the prevalence of false confessions, the aggressive and persuasive techniques employed by police to elicit confessions from suspects, or other factors that contribute to false confessions.” Id. ¶ 59. The court agreed with the defendant explaining that the value of cautionary jury instructions on such issues is limited and that “research has shown that the potential infirmities of confessions are largely unknown to jurors.” Id. ¶ 69. Accordingly, it concluded expert testimony on false confessions “should be admitted so long as it meets the standards set out in rule 702 of the Utah Rules of Evidence and it is relevant to the facts of the specific case.” Id. ¶ 72. Next, the court decided that the trial court did not err in denying the defendant’s request to suppress his confession due to alleged Miranda violations. Defendant argued that he anticipatorily invoked his right to counsel two days before he was arrested and that his confession post-arrest without the presence of counsel could not be used against him. The court disagreed, explaining that even if defendants could anticipatorily invoke their right to counsel prior to custodial interrogations, such right was subject to waiver, and that defendant did in fact waive his Miranda rights once in custody. The court also decided that Utah’s life without parole statute was constitutional and left for another day whether all station-house confessions should be recorded. The court determined any errors were harmless and affirmed the conviction.
The Utah Supreme Court addressed whether partial abandonment and partial forfeiture of water rights were available prior to 2002. In 2002, the Legislature amended Utah Code section 73-1-4 to clarify that partial forfeiture was an available remedy by providing “the water right or the unused portion of that water right” could be forfeited. Id. ¶ 8 (citation and internal quotation marks omitted). After a review of case law, the court concluded that it had recognized and applied the doctrine of partial forfeiture long before 2002. It then concluded that, although the pre-2002 forfeiture statute was ambiguous, it did provide for partial forfeiture. To reach this conclusion, the court turned to Utah’s common law and statutory requirement that all water be put to “beneficial use,” which requires a beneficial purpose and reasonable amount. The defendant’s position - that a water right could be maintained in full through partial use - would be inconsistent with the beneficial use requirement. Accordingly, the court held that under pre-2002 versions of the forfeiture statute, a water right may be forfeited either in whole or in part. Partial forfeiture occurs when, during the statutory period, the appropriator fails to use material amounts of available water without securing an extension of time from the state engineer.
In 2000, four years after an unsolved sexual assault case, state prosecutors filed information identifying the unknown attacker by his DNA profile only. Two years later, the attacker’s DNA sample was matched with an individual incarcerated in Illinois. Shortly thereafter, the State filed amended information adding that individual’s name. In February 2009, charges pending in Illinois against the defendant were dropped. Utah requested extradition, and he was booked into Salt Lake County jail in March 2009. He was convicted at a jury trial nine months later. On appeal, the defendant challenged his conviction on statute of limitations and speedy trial grounds. First, the Utah Supreme Court determined it did not need to address the statute of limitations issue because the information filed in 2000 was valid and filed within the applicable statute of limitations. The court reasoned that even though the defendant was not identified by name in the initial information, identification by DNA profile was sufficient. Moreover, the court determined the defendant’s due process right to notice was not violated because a statute of limitations is “not a source of constitutional liberties,” id. ¶ 15, and notice is not required before a prosecution is commenced. Second, the court determined the defendant’s right to a speedy trial was not violated. It weighed four factors set forth by the U.S. Supreme Court: “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. ¶ 17 (alteration in original) (citation and internal quotation marks omitted). It concluded that his right to a speedy trial was not violated because even though the length of delay between the filing of the information and trial was “extraordinary,” the remaining factors weighed in the State’s favor.
Plaintiffs defaulted on their home construction loan. They sued the appraiser who provided an appraisal to the bank to support their loan for breach of contract under a third party beneficiary theory. Plaintiffs alleged that the appraisal was over-inflated, which led them to borrow too much for the construction, which led to their default. The court affirmed the dismissal of the complaint, finding that plaintiffs were not third party beneficiaries of the appraisal as a matter of law. The court explained that the appraisal between the bank and the appraiser did not indicate a direct intent to benefit the plaintiffs - to the contrary, it clearly stated that it was “intended for use [] only by [Lender] for loan purposes only and is not intended for use by any other party or for any other purpose.” Id. ¶ 7 (alterations in original). The court found that the appraiser’s knowledge that the appraisal was going to be used to support plaintiffs’ home construction loan was insufficient to confer third party beneficiary status on them.
Avoiding the issue of whether portions of the Utah Governmental Immunity Act violate the open courts clause of the Utah Constitution, the Utah Supreme Court reversed and vacated the Utah Court of Appeals’ opinion, 2012 UT App 204, 283 P.3d 1009, which held it did, on the ground that expert testimony was necessary to establish the relevant standard of care. 2013 UT 59, ¶ 22. The Utah Court of Appeals had determined that “[t]he all-inclusive definition of governmental function” in the Act abrogated a preexisting remedy, did not offer a reasonable alternative remedy, and was not narrowly tailored, thus violating the open courts clause. 2012 UT App 204, ¶ 117. Prior to reaching this issue, it had determined that expert testimony was not needed to establish the relevant standard of care because “[t]he issue of whether three years was a reasonable time to delay replacing” a water pipe after the Water Conservancy District identified it for replacement was “not beyond the knowledge and analytical ability of the average juror.” Id. ¶ 41. The Utah Supreme Court reversed on this issue of expert testimony and vacated the remainder of the court of appeal’s opinion. See 2013 UT 59, ¶ 22. It reasoned that an internal decision by the District to replace the water pipe did “not establish a tort law duty to do so.” Id. ¶ 14. Specifically, the court concluded that without expert testimony, “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 [water pipe] earlier.” Id. ¶ 21.
The Utah Court of Appeals rejected a mother’s appeal from contempt sanctions because she had not preserved the issue for appeal, and the court refused to consider arguments of plain error and exceptional circumstance doctrine that the mother raised for the first time in her reply brief. Wolferts, 2013 UT App 235, ¶ ¶ 20, 24. The court similarly rejected the mother’s claim that the trial court denied her due process by not allowing her to testify or present witnesses at a hearing to determine the children’s best interests because she had not raised the constitutional issue before the trial court. Id. ¶ 22. Although the mother had filed a motion with the trial court seeking permission to testify and call witnesses, she did not assert she had a constitutional right to do so, nor did she argue she would be prejudiced if her participation was limited to cross-examining witnesses. Id. Therefore, the court refused to consider her constitutional argument. Id.
In an action where an attorney was sued for defamation based on letters he wrote to plaintiffs and their counsel before formal proceedings were instituted, the Utah Court of Appeals soundly affirmed the applicability of the judicial proceedings privilege and awarded sanctions. Westmont Maintenance, 2013 UT App 236, ¶ 22. Although the attorney wrote several letters asserting fraud, extortion, and forgery before any action was filed, because these letters were “preliminary to a proposed judicial proceeding,” and “broadly” related to the underlying dispute between the litigants, the judicial proceedings privilege applied, barring the defamation action. Id. ¶ ¶ 15 - 17. Moreover, even though the accused attorney was acting pro se and Utah law precludes prevailing-party attorney fees in such instances, the court affirmed an award of attorney fees based on the trial court’s inherent ability to sanction. Id. ¶ 20.
The Tenth Circuit clarified that whether a “note” is a “security” in a civil case should be determined as a matter of law, except in “rare instances.” Thompson, 732 F.3d at 1161. The court reasoned that where the Supreme Court had set forth a rebuttable presumption that a note is a security, prescribed a “comparison of the subject instrument to a judicially crafted list of non-security instruments, and [prescribed] an inquiry into the existence and adequacy of alternate regulatory schemes,” this strongly suggested that the issue was one of law. Id. The court recognized that the determination included “factual and legal components,” and the court also implied a different application might be warranted in the criminal context. Id. (citation and internal quotation marks omitted).
The Utah Supreme Court affirmed summary judgment in favor of a property maintenance company, finding that the company owed no duty towards a condominium resident who tripped on tree root offshoots concealed in the grassy common area of her complex. Hill, 2013 UT 60, ¶ 9. The court rejected all three of plaintiff’s theories for imposing tort liability on the company. Id. First, the court concluded that the company’s maintenance contract with the complex did not create a duty towards plaintiff because it did not say anything specifically about trimming tree roots. Id. ¶ 15. Second, the court found that the company did not “possess” the land, for the purposes of imposing premises liability, because it had no right to exclude persons from the property, and had only limited authority to perform authorized repair and maintenance services, while other services were contracted out to other companies. Id. ¶ ¶ 19 - 20. Finally, the court held that the company had not voluntarily undertaken maintenance of the tree root hazard, even though it had mowed over them on occasion, because it did voluntarily do anything meaningfully aimed at remedying the tree roots. Id. ¶ ¶ 40 - 41.
In this personal injury case, the plaintiff secured a default judgment against an oil and lube business owned by a sole proprietor approximately one month after it served the complaint and summons on an employee of the business. Sewell, 2013 UT 61, ¶ 8. The district court denied the business’s motion to have the default judgment set aside and awarded the plaintiff the full $600,000 he requested for medical bills, lost wages, and pain and suffering without holding an evidentiary hearing. Id. ¶ 9. The Utah Supreme Court vacated the default judgment on three independent and alternative grounds. Id. ¶ 41. First, the court held that the default judgment was void for lack of proper service under rule 4(d)(1)(A) of the Utah Rules of Civil Procedure because the plaintiff served the complaint and summons on an employee rather than on the sole proprietor himself. Id. Second, the court held that the district court abused its discretion in failing to grant the business’s rule 60(b)(1) motion to have the default judgment set aside after the business had shown that its failure to answer the complaint was the result of mistake, inadvertence, or excusable neglect. Id. And finally, the court held that the district court abused its discretion by awarding damages without holding a hearing because rule 55(b)(2) requires a damages hearing when damages are unliquidated, regardless of the allegations in the complaint. Id.
The Utah Court of Appeals reversed the trial court’s award of joint custody because the court had not required the parties to file the parenting plan required by Utah Code section 30-3-10.2(1). Bell, 2013 UT App 248, ¶ 34. Even though the issue was not properly preserved in the trial court, the court refused to “disregard controlling authority” and held the award of joint custody to have been an abuse of discretion. Id. ¶ 15. The court also held that the assumptions behind the trial court’s imputation of income to wife were flawed, were inadequately explained, and failed to take into account wife’s status as caregiver for a severely disabled child. Id. ¶ 19. The property division was reversed because of inadequate findings concerning valuations or exceptional circumstances supporting an unequal property division. Id. ¶ 23. The attorney fee award was also inadequately explained in the trial court’s findings, and was reversed despite apparent failure to preserve the issue in the lower court. Id. ¶ 24. (Wife was a pro se litigant.)
The Utah Supreme Court vacated an injunction against a street gang because the County’s service by publication was insufficient. Ogden Trece, 2013 UT 62, ¶ 64. Under a public nuisance theory, the County sought an injunction prohibiting the gang from engaging in certain acts. Id. ¶ 2. After the complaint was filed, the County personally served five members. Id. ¶ 8. As an additional precaution, the County sought and was authorized to serve the gang by publication, which it did. Id. ¶ 9. The trial court then granted a preliminary and permanent injunction. Id. ¶ ¶ 11, 16. On appeal, the court first held that it lacked appellate jurisdiction because the individual members of the gang raising the appeal were not parties to the trial court action - only the street gang was. Id. ¶ 28. Nonetheless, several individual members filed a petition for extraordinary writ, which the court concluded was the proper means for the nonparties to challenge the district court’s order. Id. ¶ 29. Next, the court concluded that the street gang was amenable to suit as an unincorporated association, even though it was a criminal organization, because it transacted business under a common name. Id. ¶ 33. The court then held that in order to properly serve the gang, the County needed to serve its “officers or managing or general agents or their functional equivalent” or “establish a sufficient factual basis for service by publication.” Id. ¶ 60. Because a proper officer of the street gang was not served, and the County did not show it “exercised reasonable diligence in attempting to identify” the appropriate agent “before requesting alternative service,” the trial court lacked jurisdiction to issue the injunction. Id. ¶ 64.
The Utah Court of Appeals held that a general contractor could not turn to its stone veneer subcontractor’s commercial general liability policy for coverage in a lawsuit brought against the general contractor by the owner for the subcontractor’s allegedly defective work. America First, 2013 UT App 256, ¶ ¶ 17 - 19. The ruling hinged upon the policy’s definition of “your.” Id. ¶ ¶ 9 - 10. The policy limited the definition of “your” to the “Named Insured.” Id. ¶ ¶ 10, 18 - 19. The subcontractor was the only named insured in the policy; the general contractor had been added to the policy as an “Additional Insured.” Id. Therefore, the exclusions for “your work” and “your product” were exclusions for the subcontractor’s work, and the exclusions applied to bar coverage. Id. As to the general contractor’s argument that the subcontractor was required by its contract with the general contractor to provide insurance coverage for its defective work, the general contractor’s remedy would be to bring a claim for breach of contract against the subcontractor. Id. ¶ 19.
The Utah Court of Appeals held that a City employee can contract away the right to be treated as a merit employee. Howick, 2013 UT App 218, ¶ 46. Howick was hired by the City as a lawyer in 1992. Id. ¶ 2. In 1998, the City created a new position in response to some lawyers’ dissatisfaction with salaries. Id. The new position came with a significant salary increase, but applicants were required to sign a disclaimer stating their employment was at-will even though under Utah Code section 10-3-1105 they would otherwise have been merit employees. Id. After her termination, Howick argued that she continued to be a merit employee under section 10-3-1105 and that permitting cities to contract around that statute’s merit protection violated public policy. Id. ¶ 30. Using the analysis in Ockey v. Lehmer, 2008 UT 37, 189 P.3d 51, the court concluded that public policy did not prevent such a waiver. Id. ¶ ¶ 34 - 43. Addressing the two Ockey factors, the court stated: (1) the statute contains no “express anti-waiver provision,” and (2) although the 2012 amendment to section 10-3-1105, which allows employees to waive merit protection in writing, could not be applied retroactively it could be considered “as a reflection of current legislative views on public policy.” Id. ¶ ¶ 35, 42.
The Utah Court of Appeals determined there was no error in convicting an individual of manslaughter, a general intent crime, even though the lead actor was convicted of aggravated murder, a specific intent crime. Binkerd, 2013 UT App 216, ¶ 29. The court recognized that under Utah precedent, an accomplice to a crime need not have the same intent as the principal. Id. Specifically, it relied on a quote from State v. Jeffs, stating that “‘ accomplice liability adheres only when the accused acts with the mens rea to commit the principal offense.’” Id. ¶ 26 (quoting State v. Jeffs, 2010 UT 49, ¶ 44, 243 P.3d 1250). The court explained that its understanding of the term “‘ principal offense’ [meant] the offense of which the defendant is convicted under a theory of accomplice liability.” Id. Because defendant “was found guilty of acting as an accomplice to manslaughter, not murder . . . it is manslaughter, not murder, which is the ‘ principal offense.’” Id. Accordingly, because the defendant acted with the mental state necessary for a conviction of manslaughter, i.e., his intentional acts and statements “disregarded the distinct possibility that [the lead actor] would interpret them to be a directive to murder the victim,” there was no error. Id. ¶ 28.
In this wrongful discharge case, an employee sued his employer for “pretaliatory” discharge, claiming that his employer fired him after he stated his intention to file a workers’ compensation claim, but before he actually filed the claim. Stone, 2013 UT App 233, ¶ 1. The district court granted summary judgment in favor of the employer dismissing the claim, finding that the employee’s termination could not have been in retaliation for filing a workers’ compensation claim because he was fired eight months before he filed the claim. Id. ¶ 5. The Utah Court of Appeals reversed, finding that an employee did not have to have actually filed a workers’ compensation claim to be protected from retaliatory termination. Id. ¶ ¶ 11 - 12. The court explained that to find otherwise 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.” Id. ¶ 11.
A 3-to-2 majority held that the doctrine of equitable adoption, which it recognized in In re Williams’ Estates, 348 P.2d 683 (Utah 1960), has been preempted by “the detailed provisions of Utah’s Probate Code.” In re Hannifin’s Estate, 2013 UT 46, ¶ 2. In a lengthy discussion of preemption, equitable adoption, definitions of “child” and “parent” in the Probate Code, the majority concluded that it is “impossible to comply with both the Probate Code and with the principles of equitable adoption.” Id. ¶ 21. In particular, the majority found that the doctrine of equitable adoption undermines the Code’s “detailed intestate succession scheme” by “introducing uncertainty, complexity, and inefficiency - the very evils the Probate Code was designed to avoid.” Id. ¶ 29.
The appellant was convicted of attempted murder and aggravated assault after he and an unofficial neighborhood watch volunteer each armed with semi-automatic pistols “squared off near midnight in their Bluffdale neighborhood.” Campos, 2013 UT App 213, ¶ 1. The Utah Court of Appeals overturned the attempted murder conviction on the basis of ineffective assistance of counsel due to the cumulative effect of three errors. Id. ¶ ¶ 92 - 93. First, the court determined that the verdict form improperly shifted the burden of proof on imperfect self-defense to the defendant. Id. ¶ 45. Second, the court determined that the prosecutor’s statements had “prompted the jury to put themselves in the shoes of the victim and to consider matters outside the evidence,” and so constituted prosecutorial misconduct. Id. ¶ ¶ 49 - 53. Third, the court determined the prosecutor’s statements during closing arguments “crossed the line from permissible argument of the evidence to an impermissible attack on defense counsel’s character.” Id. ¶ 57. Specifically, the court noted that “[a]rguing that the evidence does not support the defense theory and that the theory is thus a distraction from the ultimate issue is fundamentally different from arguing that defense counsel is intentionally trying to distract and mislead the jury.” Id. Because defense counsel did not object on these three issues, the court determined that the cumulative effect of the errors undermined its confidence in the verdict. Id. ¶ 72.

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Rodney R. Parker

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Dani N. Cepernich

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Adam M. Pace

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Adam M. Pace

Scott A. Elder

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