Recent Utah Appellate Decisions July 2019
Case summaries are authored by members of Snow Christensen & Martineau’s Appellate Practice Group. For more information, visit our Appellate Highlights page.
Utah Supreme Court
Keystone Insurance Agency, LLC v. Inside Insurance, LLC
2019 UT 20 (May 29, 2019)
In this dispute over an operating agreement, the Utah Supreme Court affirmed the district court’s grant of a motion in limine excluding the plaintiff’s damages evidence. The plaintiff failed to comply with the damages disclosure requirements of Rule 26, where it did not provide any damages computation or identify a theory or methodology of damages during fact discovery, and disclosed the same for the first time at the end of expert discovery.
Kuchcinski v. Box Elder County
2019 UT 21 (June 3, 2019)
Following dismissal of Section 1983 claims in federal court, a state court dismissed claims against a county and county sheriff’s office alleging violation of right to bail and due process based upon failing to show a flagrant violation or to identify a specific employee that violated his rights. In reversing and remanding the due process claim, the Supreme Court held that a plaintiff need not identify a specific employee in order to demonstrate a flagrant violation of his or her constitutional rights. A plaintiff need only “plead and prove against the municipality that municipal actors committed a flagrant violation against the plaintiff and that the violation resulted from a policy or custom of the municipality.”
Rutherford v. Talisker Canyons Finance Co.
2019 UT 27 (June 27, 2019)
In reviewing a denial of summary judgment for the owners of the Canyons Resort, the Utah Supreme Court took the opportunity to evaluate two prior decisions dealing with personal injury liability arising from recreational activities. First, although the decision was technically superseded by a subsequent statute, the court unanimously upheld the reasoning of Hawkins ex rel. Hawkins v. Peart, 2001 UT 94. The court held that, absent specific legislative enactments to the contrary, preinjury releases signed by parents on behalf of minors are against public policy and unenforceable as a matter of law.
A majority of the court also reaffirmed the interpretation of Utah’s Inherent Risks of Skiing Act laid out in Clover v. Snowbird Ski Resort, 808 P.2d 1037, but “streamline[d]” Clover’s two-step interpretive test by collapsing it into a single reasonableness inquiry. In a lengthy partial dissent, Associate Chief Justice Lee argued that Clover’s test is incompatible with the plain statutory text, unworkable in practical terms, and ripe for overruling.
Gardner v. Gardner
2019 UT 28 (June 27, 2019)
The district court reduced the amount of alimony awarded to the wife based on wife’s “fault” that “substantially contributed” to the demise of the marriage. The Utah Supreme Court interpreted the statutory requirement that the fault “substantially contributed to the breakup of the marriage” to mean that the conduct at issue must be an important or significant factor in the divorce, but it does not have to be the first cause or the only cause. Applying this definition, the court held that the district court did not abuse its discretion in reducing the alimony awarded to the wife, even though there were other potential causes of the divorce.
Utah Court of Appeals
Nave-Free v. Free
2019 UT App 83 (May 16, 2019)
In this domestic case, the appellant argued that a post-decree reduction in medical expenses should result in a decrease of child support. The court of appeals clarified that the statute at issue, which allowed an adjustment to child support based on material changes in medical needs of a child, was directed at changes to “underlying medical conditions.” Id. ¶¶ 17-18. Because the appellant addressed only costs of care, as opposed to changes in the children’s medical needs, the district court did not err in denying his petition to modify child support.
Willis v. Adams & Smith, Inc.
2019 UT App 84 (May 16, 2019)
The defendant argued that the testimony of plaintiffs’ non-retained expert on the issue of valuation should have been excluded at trial because the expert was not properly disclosed under Utah R. Civ. P. 26(a)(4)(E). In rejecting this argument, the court of appeals noted that the plaintiffs had listed the witness in their initial disclosures as a fact witness likely to testify on valuation, attached a summary of his valuations and supporting documentation to the initial disclosures, and further described his methodology in response to an interrogatory. The court held that these steps, taken together, provided “fair notice” of the plaintiffs’ intent to call the witness as a non-retained expert and satisfied Rule 26(a)(4)(E).
State v. Lane
2019 UT App 86 (May 23, 2019)
The court of appeals reversed the defendant’s conviction for assault and possession of a dangerous weapon by a restricted person on the basis the district court applied the wrong standard in admitting prior act evidence under the doctrine of chances. The district court’s analysis was limited to “mechanically applying Verde’s foundational requirements under Rule 404(b)” and did not involve a separate rule 403 analysis. In this case, the prejudicial inference that the defendant’s character predisposed him to get in knife fights and then claim self-defense substantially outweighed the State’s justifications for admitting the evidence. In a concurring opinion, Judge Harris raised the question – not presented by the defendant – whether it could ever be appropriate for the doctrine of chances to be applied to admit prior acts evidence to rebut a defendant’s claim he acted in self-defense, noting it would be worthwhile for a future litigant to raise this issue.
Nielsen v. Retirement Board
2019 UT App 89 (May 23, 2019)
In this administrative appeal, Nielsen argued that the Utah Retirement Board erred when it concluded that she could not continue participating in a non-contributory plan offered through Utah Retirement Systems, because she failed to make an election at the time that she accepted a new position at the University of Utah. Reversing, the court held that the board erroneously interpreted the term “one-time irrevocable election” to impose a time limit for making an election. Instead, the phrase simply meant that an individual could make a non-reversible decision to continue participating in the plan.
Ross v. Ross
2019 UT App 104 (June 13, 2019)
Intending to move from Salt Lake County to Uintah County with her two children, the appellee filed a notice of relocation pursuant to Utah Code § 30-3-37. After a two-day evidentiary hearing, the district court granted the relocation request, which resulted in a change to the physical custody arrangement and the primary physical custodian. Analyzing the interplay between the relocation statute and Rule 106, the court of appeals reversed and held that a party seeking to relocate cannot simply file the statutory notice, but instead must file a petition to modify if the relocation will effectuate a change in custody in favor of the relocating party.
Sprague v. Avalon Care Center
2019 UT App 107 (June 20, 2019)
An expert witness is not required to expressly state that each of his opinions on the standard of care was given within “a reasonable degree of medical certainty.” Instead, the expert’s testimony should be viewed as a whole and analyzed on its substance to determine whether it is sufficiently reliable. Applying this standard, the court concluded that the expert’s testimony was offered either expressly or impliedly to a reasonable degree of medical certainty, and therefore the directed verdict was properly denied.
Wilson v. Sanders
2019 UT App 111 (June 26, 2019)
The appellants sought to challenge the trial court’s denial of their Rule 60 motion to vacate a judgment that was entered after a jury trial. The court of appeals concluded that it lacked jurisdiction to consider the appeal because the notice of appeal did not specifically identify the order denying the Rule 60 motion. Although the notice of appeal included language stating that the appeal was taken from the final judgment and orders subsumed in it, the Rule 60 motion was not subsumed in the final judgment because it was decided a week after the judgment was entered.
Hayes v. Intermountain GeoEnvironmental Servs. Inc.
2019 UT App 112 (June 27, 2019)
The court of appeals affirmed the dismissal of tort claims brought by a home owner against a geotechnical engineering company under the statutory economic loss rule found in Utah Code § 78B-4-513(1). The court concluded that the tort claims were “an action for defective design and construction,” within the meaning of the statute, and were therefore barred by it, because each category of damages the plaintiff sought were related to allegations of defective design or construction. The court further concluded that the “other property” exception did not apply to permit tort claims for damage to the home that was built upon the land that the company tested.
State v. Squires
2019 UT App 113 (June 20, 2019)
The defendant was convicted of four communications fraud counts and one count of pattern of unlawful activity related to enticing his uncle to post property as collateral on a real estate investment hard money loan with the collateral ultimately lost. The court held that the State could not establish “closed ended continuity” for purposes of the pattern count “because Squire’s predicate acts of communications fraud extended over a short period of seven to eight months” and Squires’ interactions with this uncle “did not ‘by its nature project into the future with a threat of repetition.’”
United States v. Loera
923 F.3d 907 (10th Cir. May 13, 2019)
While executing a search warrant for evidence of computer fraud, federal agents discovered child pornography on certain disks in the defendant’s home. Setting those disks aside, the agents continued their search for evidence of computer fraud. The Tenth Circuit affirmed denial of the defendant’s motion to suppress the evidence of child pornography, holding that law enforcement need not stop a lawful search when evidence of crimes outside the scope of the warrant is discovered, so long as the search continues only to fulfill the original purpose of the warrant. However, the court also held that the agents unreasonably exceeded the scope of the original warrant when they later reviewed the seized disks to prepare a second warrant to search for more child pornography. That second search, although unlawful, was nevertheless upheld under the inevitable discovery doctrine.
Hamer v. City of Trinidad
924 F.3d 1093 (10th Cir. May 15. 2019)
The Tenth Circuit considered when and how a government entity violates Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act: whether only when it initially constructs or creates a non-compliant service, program, or activity; or repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity. The court held it is the latter. It then explained the differences between the continuing violation doctrine and repeated violations doctrine, holding the repeated violations doctrine applies to claims under these two statutes. Under that doctrine, the statute of limitations bars recovery only for those injuries the plaintiff incurred outside of the limitations period immediately preceding the day of suit; it does not bar recovery for injuries the plaintiff suffered within the limitations period or after the plaintiff filed suit.
Petersen v. Comm’r of Internal Revenue
924 F.3d 1111 (10th Cir. May 15, 2019)
Majority shareholders of a closely-held S corporation appealed an adverse tax decision. The Internal Revenue Service disallowed deductions based on contributions to an employee stock ownership plan (ESOP). Discussing general principles applicable to trusts and ERISA, the Tenth Circuit affirmed and held an ESOP constitutes a trust within the meaning of I.R.C. § 267, which meant that the corporation could not claim a deduction for contributions to its ESOP in 2009, even though expenses were incurred that year, if the corporation did not actually pay the amounts until 2010.
Kell v. Benzon
— F.3d —, Case No. 17-4191 (May 28, 2019)
On a habeas petition, Kell asserted two new claims after his initial petition was filed. The district court stayed one of the new claims to allow exhaustion in state court while the remaining claims proceeded. The Government filed a notice of appeal asserting that the collateral-order doctrine applied to the stay order. The Tenth Circuit held, over a dissent by Judge Baldock, that the collateral-order doctrine did not apply to so-called Rhines stays in the habeas context, and dismissed the appeal for lack of jurisdiction.
Kane County, Utah v. United States
— F.3d —, Case No. 18-4122 (June 25, 2019)
The Tenth Circuit addressed the U.S. Supreme Court’s recent holding, in Town of Chester, New York v. Laroe Estates, Inc., 137 S.Ct. 1645 (2017), that an intervenor as of right under Fed. R. Civ. P. 24 must meet the requirements of Article III standing if the intervenor seeks relief not already requested by an existing party. Applying this rule, a majority of the panel held that SUWA need not show independent Article III standing because it sought the same relief as the United States, an existing party. As part of its Rule 24 analysis, however, the majority also held that SUWA’s interests may not be adequately represented by the United States, citing the government’s duty to represent broad public interests, rather than specific environmental interests, in the litigation. Writing in dissent, Judge Tymkovich argued that these two holdings were fundamentally inconsistent, and that SUWA lacked the imminent injury-in-fact necessary to establish Article III standing.