Appellate Highlights from the Utah Appellate Courts and Tenth Circuit, February 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
Castro v. Lemus,
2019 UT 71 (Dec. 19, 2019)
Hinkle v. Jacobsen,
2019 UT 72 (Dec. 19, 2019)
Olguin v. Anderton,
2019 UT 73 (Dec. 19, 2019)
Mackley v. Openshaw,
2019 UT 74 (Dec. 19, 2019)
Under Utah’s Uniform Parentage Act (“UUPA”), Utah Code § 78B-15-204(1)(a), a man is presumed to be the father of any child born during the course of his marriage to the child’s mother. A series of companion cases recently issued by the Utah Supreme Court—Castro v. Lemus, Hinkle v. Jacobsen, Olguin v. Anderton, and Mackley v. Openshaw—dealt with the standing of an alleged father to challenge this presumption and establish his own paternity.
Castro, the lead opinion, reviewed the dismissal of an alleged father’s challenge to the presumed paternity of a child conceived during a period of separation between the child’s mother and the presumed father. Under R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, such a challenge could only be raised by the presumed father or the child’s mother. The Castro court unanimously overruled R.P., holding instead that the UUPA unambiguously grants standing to an alleged father to establish his own paternity, even where the child at issue has a presumed father.
Noting constitutional challenges raised in each of the companion cases, the Castro court observed that any contrary interpretation “raises questions as to the UUPA’s constitutionality.” Thus, even if the UUPA were ambiguous as to the standing of an alleged father, the canon of constitutional avoidance would demand the same result.
Timothy v. Pia Anderson Dorius Reynard Moss,
2019 UT 69 (Dec. 16, 2019)
The supreme court “granted certiorari in this case to address whether a law firm that deposited funds from a client into its trust account is a ‘transferee’ under the” Uniform Fraudulent Transfer Act. The court of appeals had answered the question in the negative. The supreme court, however, did not reach the issue because while the appeal was pending, the petitioners allowed the judgment from the trial court to expire. Upon expiration of the judgment, the plaintiffs no longer had a right to payment under the judgment, thereby depriving them of status as a creditor, which is required for a UFTA claim. Because the judgment expired prior to the court of appeals issuing its opinion, the supreme court vacated the court of appeals’ decision as well.
Utah Court of Appeals
Howe v. Momentum LLC,
2020 UT App 6 (Jan. 3, 2020)
In this interlocutory appeal, the defendant climbing gym appealed the denial of its motion for summary judgment. The court of appeals held the district court did not abuse its discretion in denying the defendant’s motion, which was based in part on a challenge to an expert’s qualifications. The court held that the expert’s “training as a professional engineer with experience in ‘forensic engineering and accident analysis in recreational settings,’ ‘slip and fall accident analysis,’ and ‘warnings, design, and standard of care issues’ qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry,” despite the lack of any training or experience with indoor climbing gyms.
First Interstate Fin. LLC v. Savage,
2020 UT App 1 (Jan. 3, 2020)
This appeal resulted from the dismissal of a legal malpractice case based upon the running of the statute of limitations. First Interstate alleged that Savage failed to identify as trial exhibits 19,000 documents necessary for the defense. Although the complaint was filed more than four years after judgment was entered, the court of appeals allowed the case to go forward, holding that tolling on the basis of concealment does not “necessarily require[e] active concealment by the defendant” and that the reasonableness of the plaintiff’s actions under the circumstances must be considered. Because First Interstate pled that Savage remained as its attorney in another case, among other things, the court reversed and remanded for further proceedings.
Pioneer Home Owners Association v. TaxHawk, Inc.,
2019 UT App 213 (Dec. 27, 2019)
In this appeal, the court of appeals clarified the application of the “transactional test” used to determine whether claims are the “same claims” for purposes of claim preclusion: “the relevant question [for claim preclusion] under the transactional test is whether a party could and therefore should have brought a claim at the time the lawsuit was filed, not whether a party could and therefore should have done more before or during its lawsuit to better its claim.” The second case was based on “new and material operative facts sufficient to form a new, distinct transaction.”
Chard v. Chard,
2019 UT App 209 (Dec. 19, 2019)
This appeal was the result of the demise of Training Table restaurants in Utah. In the trial court, Stephanie Chard and her father, Kent Chard, filed competing claims relating to corporate control over the restaurants, among other things. Relevant here, Stephanie identified her attorneys, whom also represented the company, as witnesses having general “knowledge concerning matters in the pleadings[.]” Based upon the broad disclosure, Kent argued trhat Stephanie had waived attorney/client privilege. The court of appeals agreed, holding “[w]hen Stephanie identified her two attorneys as witnesses whom she planned to call at trial to testify about ‘matters in the pleadings,’ she placed the attorneys’ knowledge – about all matters raised in the pleadings – at issue in the litigation[,]” thereby waiving the privilege.
Peeples v. Peeples,
2019 UT App 207 (Dec. 19, 2019)
This appeal arose from the district court’s denial of a mother’s petition to modify a stipulated divorce decree to give her sole custody of her daughters. The mother argued that the district court erred by not accepting a lesser showing of changed circumstances, where there decree was stipulated and not adjudicated. In affirming the district court’s ruling, the court of appeals reasoned that the stipulated/adjudicated dichotomy is not entirely binary, and that the stipulated decree in this case was more akin to an adjudicated decree than a non-adjudicated decree, because it was the result of a negotiated agreement after the parties fully and robustly participated in litigation for more than four years.
Burggraaf v. Burggraaf,
2019 UT App 195 (Nov. 29, 2019)
In this appeal from a divorce decree, the court of appeals held that the district court did not abuse its discretion when imputing income based on a high earnings for several months, declining to use self-employment income as a measure for imputing income, awarding unpaid child support, determining that the majority of student loan debt was husband’s separate obligation, and dividing property. The modest alimony award was vacated, however, because the district court did not consider the husband’s obligation to service student loan debt when assessing ability to pay.
State v. Rivera,
2019 UT App 213 (Nov. 21, 2019)
In this appeal from a conviction for three counts of child abuse, the defendant argued that the district court should have rejected the children-victims’ testimony as inherently improbable. The court of appeals discussed and applied the “inherent improbability exception” articulated in State v. Robbins, 2009 UT 23, and State v. Prater, 2017 UT 13, and held that the defendant had not satisfied the requirements for the exception, such that the district court could not have reconsidered the victims’ credibility. The defendant had failed to show that one of the three required elements of the exception was present: that there was no corroboration of the victims’ testimony.
Raas Brothers Inc. v. Rass,
2019 UT App 183, 454 P.3d 83 (Nov. 15, 2019)
In this appeal from the imposition of discovery sanctions, the court of appeals addressed whether documents the plaintiff had submitted to the federal Small Business Association were within the plaintiff’s custody and control. Although the holding was based on the particular facts of the case, including the plaintiff’s refusal to request the documents after being asked by the defendant and informed that the SBA could not release complete copies absent such a request, the court provided guidance on the ‘possession and control” component of Rule 35. It explained, “Especially in today’s world of cloud-based server storage, a party need not have a document in its actual physical possession in order for the document to be deemed within the party’s control.” The court referenced a case from the Territory of Utah, a footnote from a Utah Court of Appeals decision, and federal cases that indicate a document is in a party’s possession and control if the party has the legal right to it and could obtain it through a request.
Edwards v. Carey,
2019 UT App 182 (Nov. 15, 2019)
The court of appeals held that the district court abused its discretion in granting the defendant’s motion to dismiss on forum non conveniens grounds, where the district court reduced the degree of deference owed to the plaintiff’s choice of forum, and erroneously concluded that the balance of its analysis did not need to strongly outweigh this deference.
10th Circuit
Mountain Dudes v. Split Rock Holdings, Inc.,
— F.3d —, 2019 WL 7207447 (10th Cir. Dec. 27, 2019)
In this action under Utah’s Fraudulent Transfer Act, a judgment creditor sought to undo the purportedly fraudulent modification of an agreement between the judgment debtor and its successor. After trial, the jury deadlocked and both parties renewed their prior Fed. R. Civ. P. 50(a) motions for judgment as a matter of law under Rule 50(b). The district court granted judgment to the defendants as a matter of law on grounds neither party had raised. On appeal, the Tenth Circuit reversed this ruling and vacated the judgment, holding that the district court erred in granting judgment as a matter of law on grounds raised sua sponte, since Rule 50’s structure requires both notice and an opportunity to correct any evidentiary deficiency before judgment can be entered. Further concluding that neither party was entitled to judgment as a matter of law, the Tenth Circuit remanded for a new trial.
Caballero v. Fuerzas Armadas Revolucionarias de Colombia,
— F.3d —, 2019 WL 7204932 (10th Cir. Dec. 27, 2019)
The Tenth Circuit held as a matter of first impression that 28 U.S.C. § 1963 applies only to registration of federal court judgments in federal courts—not to state court judgments. Accordingly, the court reversed the district court’s judgment registering a Florida state judgment in Utah federal court.
United States v. Rodriguez,
— F.3d —, 2019 WL 7207303 (10th Cir. Dec. 23, 2019)
For the first time in a published decision, the Tenth Circuit held that a district court assessing a violation of a supervised release during sentencing may consider recidivist enhancements. In doing so, the Tenth Circuit clarified that the maximum punishment that could have been imposed for the supervised release violation determines the grade for sentencing purposes.
United States v. Leffler,
942 F.3d 1192 (10th Cir. Nov. 19, 2019)
In this appeal of a conviction, the Tenth Circuit analyzed the interplay between the forfeiture and waiver in criminal cases at length. Because the defendant failed to analyze plain error on an unpreserved sufficiency of the evidence challenge in his opening brief, the Tenth Circuit treated the argument as waived on appeal and declined to exercise its discretion to address the issue.
Tesone v. Empire Mktg. Strategies,
942 F.3d 979, 984 (10th Cir. Nov. 8, 2019)
The district court granted summary judgment on a claim arising under the Americans with Disabilities Act, because the plaintiff failed to timely designate an expert to prove disability. The Tenth Circuit clarified that the necessity of expert testimony on the issue of disability under the ADA should be consider on a case-by-case basis, depending on the nature of the impairment. Because the district court did not perform a case-specific analysis, summary judgment was reversed and the case remanded. Left open was the issue of whether, on remand, the district court should consider an unsigned doctor’s note when assessing disability.