September 2022 – December 2022 Appellate Highlights
Snow Christensen & Martineau Appellate Highlights
As seen in the Utah Bar Journal Sept-Dec ’22
By Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth
Utah Supreme Court
Kingston v. Kingston
2022 UT 43 (Dec. 22, 2022)
In this case, the trial court prohibited the father, who was a member of the Kingston polygamist group, from encouraging the children “to adopt the teachings of any religion” without the mother’s consent. The court held that the father has a fundamental right to encourage his children in the practice of religion despite the court’s award of sole legal custody to the mother. It held that the award of legal custody to the mother limits the father’s parental right only to the extent necessary to provide mother with the authority to make major decisions for the children, and that the trial court’s prohibition was not narrowly tailored to address potential harms the trial court identified.
In re A.B.
2022 UT 39 (Nov. 25, 2022)
The supreme court affirmed the court of appeals’ reversal of a juvenile court’s decision to place the mother’s child in the custody of her aunt and uncle. On appeal, the guardian ad litem and the aunt and uncle argued that the courts should apply a deferential standard of review not just to best interest determinations, but “to ‘all aspects’ of juvenile court determinations.” In affirming the court of appeals, the Supreme Court held that “[u]nlike the best interest determination . . . with nearly unlimited possible scenarios and factors for the juvenile court to consider, a neglect determination requires a court to operate within a closed universe. Once the facts have been established, the juvenile court is limited to determining whether the statutory criteria for neglect have been met. Doing so is primarily a law-like endeavor.” Therefore, the court held that the proper standard of review was a non-deferential mixed question of fact and law standard.
Williamson v. MGS by Design, Inc.
2022 UT 40 (Nov. 25, 2022)
A sales agent alleged her former employer violated state statute by failing to pay commissions. The company successfully moved to dismiss, arguing a provision in the statute referencing an agreement required a signed writing as a condition of recovery. Reversing the dismissal, the supreme court held the plain language of the Utah Sales Representative Commission Payment Act did not condition recovery on the existence of a signed writing.
Utah Court of Appeals
Oldroyd v. Oldroyd
2022 UT App 145 (Dec. 22, 2022)
The court of appeals held that work done on a home prior to marriage could not be treated as “contribution” of marital effort or expense that enhances marital property. It also rejected application of the “extraordinary circumstances” exception to allow husband to reach wife’s premarital assets to compensate him for his premarital contribution to the home.
In re H.C.
2022 UT App 146 (Dec. 22, 2022)
The court of appeals affirmed the juvenile court’s termination of reunification services with mother and award of permanent custody of the minor child to his father. In doing so, the court rejected the mother’s arguments that the permanent custody order “‘overstepped the statutory distinctions between juvenile courts and district courts’” and “‘overstepped the statutes that direct when and how permanency plans should be changed.’” The court explained, the juvenile “court’s grant of permanent custody and guardianship to Father was both appropriate and necessary given the mandate of the applicable statutory scheme.” It had acquired original jurisdiction over the child when the State filed a petition for protective supervision services, alleging abuse and neglect. It continued to exercise jurisdiction over the child following his removal. And, because the juvenile court had ordered reunification services, it was required to hold a permanency hearing within 12 months. Having found the child could not be safely returned to mother, the juvenile court was required by statute to order termination of reunification services and “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for [the child],” Utah Code § 80-3-409(4)(a)–(b).
Zubiate v. American Family Insurance Company
2022 UT App 144 (Dec. 22, 2022)
Analyzing an arguably “inartful” complaint under Utah R. Civ. P. 8 and 12(b)(6), the court of appeals adopted the reasoning of federal authorities holding that, while a complaint must “allege facts supporting the claim, a plaintiff is not required to specifically describe the legal theories upon which the claim rests.” “Thus, as long as the plaintiff has set forth facts that allege ‘a legal right, the invasion of which by defendant has caused damage to the plaintiff,’ . . . that pleading is sufficient.”
In re K.Y.
2022 UT App 142 (Dec. 15, 2022)
After the failure of an extended period of reunification therapy, the juvenile court terminated mother’s parental rights. The court of appeals reversed, holding that the lower court had failed to consider feasible alternatives to termination, including the possibility of a permanent custody and guardianship arrangement. Instead, the court had only considered the feasibility of returning the children to mother.
Fuja v. Woodland Hills
2022 UT App 140 (Dec. 8, 2022)
The Fujas sent demand letters to Woodland Hills complaining about a building permit issued to their neighbors. Not receiving a response, the Fujas appealed the City’s lack of response to the Board of Appeals, which rejected their appeal because a city’s inaction was not a reviewable land use decision, and it was otherwise untimely based on the building permit being issued long before the appeal. The district court affirmed as did the court of appeals, holding that inaction did not amount to an appealable “land use decision” pursuant to Utah Code § 10-9a-802. The only land use decision at issue – the issuance of the initial building permit – was unreviewable as time-barred.
State v. Calata
2022 UT App 127 (Nov. 17, 2022)
In this appeal of restitution awarded following a conviction arising out of a high-speed chase, the court of appeals held that the defendant failed to establish ineffective assistance of counsel based on claims that his attorney should have argued for apportionment of fault between the defendant and officers for damages caused by the chase. The decision has an interesting discussion of arguments for and against applying apportionment of fault in criminal restitution cases.
Tooele County v. Erda Community Association
2022 UT App 123, 521 P.3d 872 (Nov. 10, 2022)
The Erda Community Association sued Tooele County, petitioning for judicial review of a county planning commission decision. The County moved to dismiss the petition, asserting the Association failed to exhaust its administrative remedies. The district court denied the motion, concluding that the Association was not required to exhaust its administrative remedies because it properly alleged that the County “acted outside the scope of its defined, statutory authority.” On interlocutory appeal, the court of appeals reversed, holding that, regardless of whether the County’s approval of a particular land-use decision was erroneous or in contravention of a statute or ordinance, the County had a “defined, statutory authority” to consider such applications. Accordingly, the “outside the scope” exception to the exhaustion requirement did not apply.
In re A.G.
2022 UT App 126 (Nov. 10, 2022)
The issue presented here was “whether, under the language of [Utah Code § 80-4-307], parents who intend to relinquish their parental rights in connection with a child welfare proceeding may effectuate that relinquishment under oath orally in court, without ever signing anything, or whether they must at some point sign a document effectuating that relinquishment.” In reversing the trial court’s decision, the supreme court held that the plain language of the statute requires a signed document to relinquish parental rights and an oral relinquishment in court is insufficient. The statute requires the relinquishing parent to “certify” that the parent “executing the . . . relinquishment has read and understands the . . . relinquishment and has signed” it “freely and voluntarily,” with the relinquishment being “effective when the voluntary relinquishment . . . is signed.”
Jordan Credit Union v. Sullivan
2022 UT App 120 (Oct. 27, 2022)
The Utah Court of Appeals reversed the district court’s denial of the defendant’s motion to set aside a default judgment entered against him, holding that the district court lacked personal jurisdiction over the defendant because he was not properly served. The defendant had been personally served by a Utah County deputy constable while he was incarcerated in the Utah County Jail. Rule 4(d)(1)(D), however, requires service of a person incarcerated to be made “by delivering a copy of the summons and complaint to the person who has the care, custody, or control of the individual,” who must then “promptly deliver[ the summons and complaint] to the individual.” Because the defendant was not served in this manner, the district court lacked personal jurisdiction. In a concurring opinion, Judge Orme suggests the Utah Supreme amend Rule 4(d)(1)(D) to include the prescribed method applies only “if personal service cannot be effected on such individual.”
State v. Hintze
2022 UT App 117 (Oct. 14, 2022)
The court of appeals held that the State violated the defendant’s right to a speedy trial under the Sixth Amendment, reversed his conviction, and remanded with instructions to dismiss one count of violation by a sex offender of protected area. In doing so, the majority rejected an argument that an invocation of the speedy trial right must specifically reference trial to put the State on notice, and it clarified the framework for assessing prejudice for the purposes of a speedy trial analysis.
Wallace v. Niels Fugal Sons Co.
2022 UT App 111 (Sept. 22, 2022)
An attorney for the plaintiff moved to withdraw before a pretrial disclosure deadline but the motion was not granted until after the deadline passed. The plaintiff’s pretrial disclosures were not filed until one week after the deadline when new counsel entered an appearance. The trial court granted the defendant’s motion to exclude all of the plaintiff’s untimely disclosed witnesses and evidence and dismissed the case. The court of appeals affirmed the dismissal, reasoning that the plaintiff could not show good cause excused the late disclosures because she was represented at the time the deadline passed. The appellate court emphasized that an attorney seeking to withdraw as counsel under Utah R. Civ. P. 74(a) once a trial date is set is not excused from representation of the client until the trial court grants the motion to withdraw.
Rocky Mountain Wild v. U.S. Forest Service
56 F.4th 913 (10th Cir. Dec. 30, 2022)
The Tenth Circuit affirmed summary judgment in favor of the U.S. Forest Service in this Freedom of Information Act case. Among other things, the court held the Forest Service had put forth reasonable efforts to comply with the FOIA request. This included joining the Seventh Circuit in holding it was not inherently unreasonable for the Forest Service to allow employees to customize the terms they used to search their own records, particularly given the Forest Service identified the particular terms used.
Sumpter v. Kansas
56 F.4th 871 (10th Cir. Dec. 28, 2022)
After exhausting an appeal of a state conviction, the petitioner sought a writ of habeas corpus in federal court. The Tenth Circuit held, as a matter of first impression, petitioner was required to obtain a certificate of appealability on claims raised in his cross-appeal before the state appellate court. Because he could not obtain the certificate on the issues raised in his cross-appeal, the court dismissed those claims for lack of jurisdiction.
United States v. Maldonado-Passage
56 F.4th 830 (10th Cir. Dec. 23, 2022)
For “all you cool cats and kittens” who are interested in the interpretation of the murder-for-hire statute, 18 U.S.C. § 1958(a), in this sentencing appeal the Tenth Circuit, as a matter of first impression, adopted the “plot-centric” interpretation. Under that interpretation, the statute criminalizes each plot or scheme to murder an individual rather than each use of the facilities of interstate commerce in service of a murder-for-hire scheme. Even under this interpretation, however, the court affirmed the district court’s order sentencing the Tiger King to separate sentences for two violations of § 1958(a). The evidence established two independently operating plots to kill Carol Baskin.
United States v. Nevarez
55 F.4th 1261 (Dec. 19, 2022)
On appeal from denial of a motion to dismiss based on a Speedy Trial Act violation, the Tenth Circuit affirmed, holding that defense counsel’s objection before the deadline for trial was premature and therefore ineffectual. The appellate court emphasized that “[a]n actual violation of the Speedy Trial Act must exist at the time the motion is made.”
Wells Fargo Bank v. Stewart Title Guaranty Company
55 F.4th 801 (Dec. 12, 2022)
Wells Fargo sued Stewart Title alleging that the bank’s defaulting debtor had not been able to deliver good title to one parcel of property securing the loan. Following trial, the district court agreed with the bank and awarded it the amount of its loss, based on the value of the parcel. These decisions were affirmed as factual findings supported by the evidence. The court erred, however, in failing to award prejudgment interest. Applying Utah law, the court of appeals held that damages were calculated based on “known standards of value”—generally accepted methods of appraising real property. Even though the appraisers disagreed on value, there were no inherent uncertainties, such as need for repairs, that would require the factfinder to make discretionary decisions. Thus, prejudgment interest should have been awarded.
Bledsoe v. Carreno
53 F.4th 589 (10th Cir. Nov. 15, 2022)
After DNA evidence and a suicide note exonerated an individual convicted of murder, he sued under § 1983 alleging officers fabricated and suppressed evidence. Resolving an issue of first impression, the Tenth Circuit held Parratt abstention, which operates as a bar to procedural due process claims if there are adequate state post-deprivation remedies, did not apply to substantive due process claims. As a result, an individual may state a claim for deprivation of substantive due process regardless of state-law tort remedies.
Fresquez v. BNSF Railway
52 F.4th 1280 (10th Cir. Nov. 10, 2022)
The Tenth Circuit addressed, for the first time, the difference between front pay in lieu of reinstatement and damages for loss of future earnings capacity. Front pay compensates a plaintiff “‘for the immediate effects of [defendant’s] unlawful termination of her employment’ and ‘approximate[s] the benefit [plaintiff]s would have received had she been able to return to her old job,’” whereas lost future earnings compensate a plaintiff “‘for a lifetime of diminished earnings resulting from the reputational harms she suffered as a result of’” the defendant’s unlawful conduct.
Hennessey v. University of Kansas Hospital
53 F.4th 517 (Nov. 9, 2022)
In this appeal, the Tenth Circuit joined the other circuits that have addressed the issue in holding that an entity asserting it is an arm of the state for purposes of sovereign immunity has the burden on this issue. The defendant did not carry this burden in its motion to dismiss, having failed to identify the four factors considered at the first step of the analysis, Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250 (10th Cir. 2007), and provided no evidence or analysis relevant to those factors. While a district court can raise and resolve the issue of sovereign immunity sua sponte “where judicially noticeable evidence clearly resolves an entity’s arm-of-the-state status and entitlement to sovereign immunity,” that was not the case here. The Tenth Circuit vacated the district court’s order granting the defendant’s motion to dismiss and remanded so that the district court could receive evidence from the defendant on remand and reevaluate whether it is an arm of the state.
United States v. Herrera
51 F.4th 1226 (Oct. 27, 2022)
Joining the First, Second, Sixth, and D.C. Circuits, the Tenth Circuit held that a facial challenge to the constitutionality of a criminal statute does not implicate the district court’s subject-matter jurisdiction and therefore may be waived if not raised in a pretrial motion under Fed. R. Civ. P. 12(b).
Vincent v. Nelson
51 F.4th 1200 (Oct. 27, 2022)
This personal injury lawsuit arose from a collision between two coal-mining trucks as they were passing each other. After the plaintiff lost at trial, he filed several post-trial motions, including a motion for new trial. His primary argument was that the trial court erred by allowing the defendants’ non-retained experts to point out the location of the accident on an aerial photograph of the mine which the experts had not discussed in their Rule 26 designations or their depositions. The Tenth Circuit affirmed the trial court’s denial of the plaintiff’s post-trial motions, holding that the experts’ testimony about the photograph and location of the accident was lay opinion testimony that did not have to be disclosed under Rule 26; that the testimony was within the scope of the experts’ designations; and that even if it wasn’t, the trial court did not abuse its discretion in permitting the testimony to be admitted under the framework established in Smith v. Ford Motor Co.
Energy West Mining Co. v. Dir., Office of Workers’ Comp. Programs
49 F.4th 1362 (Sept. 27, 2022)
The claimant in the underlying administrative action had smoked for 40 years but worked in coal mines for 6½ years. He developed pneumoconiosis, which the administrative law judge found to be legal pneumoconiosis under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. Energy West appealed arguing the ALJ applied the wrong causation standard. As a matter of first impression, the Tenth Circuit affirmed and joined the Sixth, Seventh, and Eleventh Circuits in holding that under the Act, in order for a claimant to receive compensation, “the work in the coal mines had to bear a significant or substantial relation to at least part of the reason for [the claimant]’s COPD.”
United States v. Williams
48 F.4th 1125 (Sept. 8, 2022)
As a matter of first impression, the Tenth Circuit held a state conviction would not categorically qualify as a “serious drug offense” under the Armed Career Criminal Act if the state sentence included substances that were not federally controlled at the time of the federal offense. The court rejected the government’s contention that the appropriate point of comparison for the purposes of the ACCA was federal law in effect at the time of the prior state offenses.
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