Appellate Highlights from the Utah Appellate Courts and Tenth Circuit, April 2020

The following summaries have been prepared by authoring attorneys Rodney R. Parker, Dani Cepernich, Robert Cummings, Nate Mitchell, Adam Pace, and Andrew Roth.


Utah Supreme Court

McDonald v. Fidelity & Deposit Co. of Maryland,
2020 UT 11 (Feb. 28, 2020)

When a subcontractor failed to make contributions to various trust funds for its employees’ work on a state construction project and then declared bankruptcy, the trusts sued to recover the unpaid contributions from a public payment bond associated with the project.  On appeal from summary judgment in favor of the trusts, the supreme court adopted the reasoning of Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, to conclude that the trusts had a general right to sue on behalf of beneficiary employees under Utah’s public payment bond statute, Utah Code § 63G-6-505(4) (2010).  The court also held that the trusts (and individual employees) could pursue only those “traceable amounts that are ultimately ‘due’ an individual employee” under the statute.  Thus, individual wages or contributions to a 401(k) are recoverable under the statute, but other contributions that benefit employees only as a collective are not.

Utah Dep’t of Transportation v. Target Corp.,
2020 UT 10 (Feb. 28, 2020)

In this eminent domain case, the supreme court clarified the standard for severance damages in cases involving partially condemned property by grounding the operative test in the terms of the statute as originally understood.  In doing so, the court discussed interplay between judicial gloss in case law and “the importance of sticking to the text of governing rules and statutes.”

Hand v. State,
2020 UT 8 (Feb. 19, 2019)

The supreme court reversed the dismissal of the petitioner’s petition under the Post-Conviction Remedies Act, holding his prior petition that he had voluntarily dismissed did not constitute a “previous request for post-conviction relief.”  The court applied the “settled view of the effect of a voluntary dismissal under civil rule 41(a)(1)(A)”; that “such a dismissal renders the proceedings a nullity and leaves the parties as if the action had never been brought.”

Bright v. Sorensen,
2020 UT 7 (Feb. 18, 2020)

In this consolidated interlocutory appeal of three district court orders denying motions to dismiss medical malpractice lawsuits, the court held: 1) that the fraudulent concealment and foreign object tolling exceptions in Utah Code § 78B-3-404 can extend either the limitations or repose periods; 2) that when a plaintiff pleads fraudulent concealment as a response to an anticipated affirmative defense, he or she is not required to plead with particularity under Utah R. Civ. P. 9(c); 3) that the foreign object exception applies in cases in which “foreign” material is wrongfully left in a patient, not where the material left is what was intended by a surgery; and 4) that the Act did not retroactively bar one of the plaintiff’s negligent credentialing claims.

State v. Lujan,
2020 UT 5 (Feb. 11, 2020)

Abrogating State v. Ramirez, 817 P.2d 774 (Utah 1991), the supreme court held that the admissibility of eyewitness identification testimony should be analyzed first under the rules of evidence, but noted that the state and federal due process clauses may operate as a backstop in cases of suggestive police activity.

In re GJP,
2020 UT 4 (Feb. 5, 2020)

The juvenile court appointed a Guardian Ad Litem (“GAL”) for a mother defending against termination of parental rights proceedings.  The Office of Public Guardian (“OPG”) objected to the appointment arguing that the court had no authority to appoint a GAL for the mother, or that the court abused its discretion in doing so.  The supreme court held that the juvenile court has inherent authority to appoint a GAL, but the OPG cannot be compelled to assign a GAL for the mother without OPG’s consent as required by statute.

State v. Badikyan,
2020 UT 3 (Jan. 30, 2020)


State v. Flora,
2020 UT 2 (Jan. 30, 2020)

In these concurrently issued opinions the supreme court held that the plea withdrawal statute, Utah Code § 77-13-6, creates its own preservation rule that is not subject to the common-law preservation exceptions, and it bars appellate review of unpreserved claims raised as part of an appeal of a timely motion to withdraw a guilty plea.  Defendants seeking to raise such claims much do so under the Post-Conviction Remedies Act.

State v. Hatfield,
2020 UT 1 (Jan. 9, 2020)

Defendant entered a Sery plea in the trial court to four counts under Utah’s Sexual Exploitation Act.  The court of appeals affirmed two counts but dismissed two finding that as to the dismissed counts, the materials in defendant’s possession did not amount to “simulated” sexual acts.  In doing so, the court interpreted “simulated” under Section 103(11) of the Act holding: “Simulated conduct requires the duplication of an actual act such that the average person would believe that the activity appears to have occurred.”  Moreover, while the Court previously cited the Dost factors as instructive in determining whether a depiction was designed “for the purpose of sexual arousal of any person,” the court noted that its prior reliance on Dost was “with a healthy dose of caveat” explaining the “inquiry will always be case-specific” and that there “may be other factors that are equally if not more important” in determining whether an image violates the Act.


Utah Court of Appeals

Robertson v. Stevens,
2020 UT App 29 (Feb. 21, 2020)

In affirming the denial of a petition to modify a divorce decree, the court of appeals held that the district court lacked continuing jurisdiction to modify or expand a stipulated non-child-related nondisparagement clause contained in a final decree of divorce.

State v. Richins,
2020 UT App 27 (Feb. 21, 2020)

After the defendant asserted that the victim mistakenly accused him of public lewdness at trial, the prosecution introduced evidence of four strikingly similar prior instances of lewdness perpetrated by the defendant under the doctrine of chances.  That doctrine permits the introduction of previous comparable misconduct by a defendant to show that a witness has not made a mistake or fabricated an accusation based on “the objective improbability of the same misfortune”—repeated false accusations—“befalling one individual over and over.”  Although the court of appeals unanimously upheld the defendant’s conviction on public lewdness, two judges on the panel echoed concern expressed in prior opinions that the doctrine of chances permits introduction of evidence that is ultimately indistinguishable from “straight-up propensity evidence.”  In a special concurrence, Judge Orme rejected his colleagues’ concern and defended “established jurisprudence concerning the doctrine of chances.”

Redden v. Redden,
2020 UT App 22 (Feb. 13, 2020)

The trial court made the payor spouse responsible for student and vehicle loans, but then disallowed the loan obligations when considering the payor spouse’s ability to pay alimony.  Reversing and remanding for further consideration, the court of appeals held that the trial court exceeded its discretion by declining to disallow loans allocated to the payor spouse for alimony purposes, primarily because its decision failed to explain the bases for its decision.

Heartwood Home Health & Hospice, LLC v. Huber,
2020 UT App 13 (Jan. 24, 2020)

In affirming the district court’s grant of summary judgment to the defendants in this case involving alleged breaches of a confidentiality agreement and fiduciary duties, the court of appeals addressed the effect of a Rule 30(b)(6) ’s representative’s position testimony at the summary judgment stage.  “[T]he organization is generally bound by its representative’s testimony at the summary judgment stage of litigation.”  “The binding nature of the representative’s deposition, however, is limited to the summary judgment stage and, even then, the evidentiary limitation does not extend to the representative’s legal conclusions; to answers to questions that do not fall within the noticed scope of the deposition; or to facts that supplement, correct, or explain the representative’s testimony.”

Peck v. Peck,
2020 UT App 14 (Jan. 24, 2020)

In this divorce action, husband’s attorney in the trial court did not object to a proposed order that incorrectly identified the length of the marriage for a QDRO calculation.  Husband filed a Rule 60(b) motion relying on the residual clause, which the district court denied.  The court of appeals reversed.  As the court explained: “Gross attorney negligence that is ‘too egregious and exceptional to be encompassed by Rule 60(b)(1)’ may be assessed under the residuary clause.”  The court remanded the case to allow the district court to determine in the first instance whether the mistake fit within the court’s stated standard.

Wallingford v. Moab City’
2020 UT App 12 (Jan. 24, 2020)

This appeal arose from a lawsuit filed by a group of citizens challenging Moab City’s modification of a previously approved land development project.  The City initially classified the modification as “major changes” which required a public hearing under a local ordinance, but later entered into a contract with the developer and SITLA whereby the City agreed to treat the modifications as “minor changes” that would not require a public hearing.  The court of appeals held that this was unlawful “contract zoning,” and that the City could not enter into this contract without first holding a public hearing.  Accordingly, the court reversed the district court’s order granting summary judgment to the City and remanded the matter for further proceedings.

State v. Hutchinson,
2020 UT App 10 (Jan. 9, 2020)

Citing efforts to reform probation statutes in recent years, the defendant argued the trial court lacked authority to revoke his probation.  While the legislature’s adoption of the Justice Reinvestment Initiative changed the probation landscape in 2015, district courts retain statutory authority to revoke probation and impose the original sentence in certain cases.  Because the defendant had 24 probation violations, committed new offenses while on probation, and had been given several opportunities to address his drug addiction but failed to do so, the court did not abuse its discretion in revoking probation and imposing the original sentence.

Keaty LLC v. Blueprint Summer Programs, Inc.,
2020 UT App 9 (Jan. 9, 2020)

On appeal from the lower court’s dismissal for lack of personal jurisdiction, the court of appeals held that the district court properly concluded that it lacked personal jurisdiction over a North Carolina corporation, Blueprint.  The plaintiffs, including a consulting company headquartered in Nevada and Utah, asserted that the court could exercise specific personal jurisdiction over Blueprint because Blueprint allegedly enticed a Utah-based employee away from a Utah-based company in violation of the parties’ contract.  The court disagreed, holding that, under Walden v. Fiore, 571 U.S. 277 (2014), grounding personal jurisdiction over Blueprint based upon the plaintiffs’ connections to Utah would “impermissibly allow[] a plaintiff’s contacts with the defendant and the forum to drive the jurisdictional analysis.”  Although the court could “imagine specific acts directed at Utah that Blueprint might have taken to recruit the employee,” the plaintiff failed to make any such allegations.


10th Circuit

United States v. Lovato,
950 F.3d 1337 (10th Cir. Feb. 27, 2020)

In affirming the defendant’s convictions for being a felon in possession of a firearm, the Tenth Circuit upheld the district court’s admission of a 13-minute 911 call under the present sense impression exception to the rule against hearsay.  The court concluded that it was not necessary to examine each statement within the call to address credibility concerns because the caller was a disinterested observer; no substantial change in circumstances occurred during the call; and the caller provided his full name, phone number, and address during the call.  The court further concluded that the statement was sufficiently contemporaneous to qualify as a present sense impression.

United States v. Bacon,
950 F.3d 1286 (10th Cir. Feb. 21, 2020)

In this criminal appeal, the Tenth Circuit held that the district court’s denial of the criminal defendant’s challenge to filing the supplement to his plea agreement under seal was plain error.  The court detailed the burden that a party seeking to have a court record sealed must carry to overcome the presumption that court records are available to the public.  It was plain error for the district court not to apply these requirements.  The court refused to modify the common law to create an exception for plea supplements and held that the District of Utah’s local rule providing for such documents to be sealed as a matter of course could not supplant the common law.

United States v. Gonzalez-Fierr0,
949 F.3d 512 (10th Cir. Feb. 4, 2020)

As a matter of first impression, the Tenth Circuit held that 8 U.S.C. § 12225(b)(1)(D) unconstitutionally deprives a defendant who had a previous expedited removal under 8 U.S.C. § 1225(b)(1) and is charged with unlawful reentry under 8 U.S.C. § 1326(a) of due process because it allows the government to use that unreviewed expedited removal order to convict the defendant of the § 1326(a) criminal offense.  In doing so, the court relied on the Supreme Court’s decision in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which, although involving different circumstances, “applies here with equal force.”

Aguilar v. Mgmt. & Training Corp.
948 F.3d 1270 (10th Cir. Feb. 4, 2020)

The lawsuit underlying this appeal was filed by 122 detention officers who claimed that their employer violated the Fair Labor Standards Act and state law by failing to pay them for certain activities that they engaged in before they arrived at, when they arrived at, and after they left their posts within the prison. The Tenth Circuit held that the alleged pre- and post-shift activity is compensable work under the FLSA, and therefore reversed the district court’s order granting summary judgment to the prison.

United States v. Tony,
948 F.3d 1259 (10th Cir. Jan. 27, 2020)

The Tenth Circuit held that the district court abused its discretion in excluding evidence of the victim’s use of drugs, because it had been offered for a permissible purpose—namely, to show that the victim was the first aggressor and self-defense.  Rather than remand to the trial court for consideration of an alternative basis for excluding the evidence, the Tenth Circuit vacated the first-degree murder conviction in its entirely, citing the fact that the trial occurred two years earlier, as well as concerns that remand would create a dilemma for the trial court, which would face the temptation to rationalize the exclusion of the evidence on other grounds.

Walker v. Corizon Health,
947 F.3d 1244 (10th Cir. Jan. 14, 2020)

In this 42 U.S.C. § 1983 action, the plaintiff, the estate of a deceased inmate, sued Corizon, which was the medical entity providing care to the institution, along with numerous healthcare professionals.  One defendant, Dr. Mohiuddin, filed a motion to dismiss based on qualified immunity arguing that the complaint only made collective allegations against all defendants and nothing particular as to him.  The district court denied the motion.  The Tenth Circuit reversed noting that the allegations in the complaint, if true, were “disturbing and reprehensible,” but “[m]erely lumping Mohiuddin in with fifteen other medical professionals under the generic label ‘defendants’ or ‘Corizon healthcare providers’ does not adequately plead a § 1983 claim against him.”