September 2022 – November 2022 Appellate Highlights

Snow Christensen & Martineau Appellate Group Highlights

As seen in the Utah Bar Journal Oct-Nov’22

By Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth

Utah Court of Appeals

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.

10th Circuit

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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