Utah Appellate Decisions, September 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
Thomas v. Hillyard
2019 UT 29 (July 2, 2019)
As a matter of first impression, the court held that the statute of limitations for a legal malpractice claim arising from a criminal case begins to run when the underlying action has concluded and there is no appeal of right available.
Biesele v. Mattena
2019 UT 30 (July 10, 2019)
In this appeal from a jury verdict involved tort claims arising out of an inheritance, the court held that, absent a request for apportionment of fault by a party, the Liability Reform Act does not preclude the district court from imposing joint and several liability. The court also held that bifurcation punitive damages is not required in a case in which no party sought to introduce evidence of wealth or financial condition.
Rocky Ford v. Kents Lake
2019 UT 31 (July 11, 2019)
Rocky Ford is a downstream user of water rights from the Bear River. Kents Lake is an upstream user. The two entities had entered into various agreements over several decades. With the advent of sprinkler irrigation, as compared to traditional irrigation, Kents Lake was using less of its upstream flow rights and therefore could store more of its water shares in a reservoir, which deprived Rocky Ford of downstream flow. The supreme court held that Kents Lake was entitled to use its water in the most efficient manner within the bounds of its rights, and that downstream users, even with senior water rights, only have a right to water run-off to the extent it returns to the source; upstream users can benefit from efficiency gains and capture their own seepage.
Nixon v. Clay
2019 UT 32 (July 11, 2019)
Adopting a new framework for assessing liability for sport injuries, the supreme court held that “participants in sports generally have no duty to avoid conduct that is inherent in the sport.” Because the plaintiff’s injuries arose out of contact that occurred while the defendant was reaching in and swiping for the ball—common moves in basketball—the district court did not err in granting summary judgment in the defendant’s favor.
Bradburn v. Alarm Protection Technology, LLC
2019 UT 33 (July 17, 2019)
Plaintiff took an advance on his sales commissions and signed a confession of judgment which included his choses in action against the company. When he quit, he sued the company for unpaid commissions, among other things. The company, meanwhile, executed on the confession of judgment, held a constable sale, purchased plaintiff’s choses in action against itself, moved to substitute itself as plaintiff, and dismissed the case. On appeal from the order granting substitution, the Utah Supreme Court affirmed, concluding that plaintiff’s failure to appeal either the underlying judgment or the constable sale meant the court could not address his argument that the confession of judgment was against public policy. Instead, the court was jurisdictionally limited to evaluation of the substitution order, which was proper.
Vega v. Jordan Valley Medical Center
2019 UT 35 (July 19, 2019)
The Utah Health Care Malpractice Act requires a plaintiff to obtain a certificate of compliance from the Division of Occupational and Professional Licensing (DOPL) before filing suit. The court held that this requirement of the Malpractice Act is unconstitutional because it violates the judicial power provision, by allowing DOPL to exercise the core judicial function of ordering the final disposition of claims without judicial review. Accordingly, the court reversed and remanded the case to be tried on its merits.
State v. Silva
2019 UT 36 (July 23, 2019)
In this direct appeal from a criminal conviction, the court repudiated language in prior case law limiting the review of an attorney’s performance to the law in effect at the time of trial, and held that “‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’”
In re Gestational Agreement
2019 UT 40 (August 1, 2019)
As a matter of first impression, the court held that a provision of the Uniform Parentage Act, Utah Code § 78B-15-803, that a gestational agreement is unenforceable unless at least one of the intended parents is female, is unconstitutional under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, and that it is severable from the remainder of the Act. Accordingly, the court reversed and remanded the district court denial of a petition for court approval of a gestational agreement where both of the intended parents were male.
Faucheaux v. Provo City
2019 UT 41 (Aug. 6, 2019)
On a petition for writ of certiorari, the supreme court affirmed the court of appeals’ reversal of a dismissal of a case against Provo City, but on alternative grounds. The court of appeals had held that although a wrongful death claim brought by the estate of a decedent is void, an objection to the capacity of the estate to bring suit is an affirmative defense that can be waived. The supreme court held this case does not actually present a capacity issue, because the substance of the complaint revealed the claims were asserted by the personal representative of the estate for the benefit of the heirs of the decedent. The court noted that a true capacity challenge may present a question of standing, which would not be subject to waiver. Without resolving this issue, the court offered a second basis for affirming the court of appeals’ reversal. It held, “A mere lack of capacity makes a case voidable, not void. And when faced with this defect, the proper remedy is substitution under rule 17(a) of the Utah Rules of Civil Procedure.”
Raser Techs., Inc. ex rel. Houston Phoenix Grp., LLC v. Morgan Stanley & Co., LLC
2019 UT 44 (Aug. 13, 2019)
The district court declined to assert personal jurisdiction over multiple defendants for alleged violations of the Utah Pattern of Unlawful Activity Act. Reversing, the supreme court held that the district court should have separately analyzed the elements of personal jurisdiction for each plaintiff, defendant, and claim. The court also adopted a conspiracy theory of jurisdiction and identified the elements that a party must plead with particularity to establish personal jurisdiction under such a theory: “(1) the defendant is a member of a conspiracy, (2) the acts of the defendant’s co-conspirators create minimum contacts with the forum, and (3) the defendant could have reasonably anticipated that her co-conspirator’s actions would connect the conspiracy to the forum state in a meaningful way, such that she could expect to defend herself in that forum.”
WDIS v. Hi-Country
2019 UT 45 (Aug. 13, 2019)
In this dispute between homeowners and an HOA, the homeowners asserted a quiet title claim. The district court dismissed the quiet title claim on statute of limitation grounds. The court of appeals addressed whether the homeowners’ quiet title claim was a “true quiet title claim” thereby having no applicable statute of limitation. Ultimately, the court clarified two prior cases – In re Hoopiiaina Trust, 2006 UT 53 and Bangerter v. Petty, 2009 UT 67 – and held that “a plaintiff’s quiet title claim is not barred by a statute of limitations if the plaintiff is able to establish a prima facie quiet title case without first receiving some other relief from the court.”
Moshier v. Fisher
2019 UT 46 (Aug. 13, 2019)
In this legal malpractice case, the district court concluded the claims were barred by the statute of limitations. The supreme court reiterated that a malpractice claim, if informed by an ongoing proceeding, does not accrue until the other proceeding has concluded. Reversing the dismissal, the court held that the malpractice claim accrued when the bankruptcy court, in the related proceeding, confirmed the final bankruptcy plan, which made the damages and harm sufficiently final for the plaintiffs to understand that their attorney’s failure to timely pursue the claim in that case had prejudiced them.
Ross v. State
2019 UT 48 (Aug. 15, 2019)
The district court initially granted summary judgment to the State dismissing this PCRA petition, but that ruling was reversed and remanded for an evidentiary hearing to determine whether appellate counsel was ineffective for not raising the argument that trial counsel was ineffective for not raising an extreme emotional distress defense at trial. After this hearing, the district court concluded that appellate counsel was ineffective, but that defendant had not suffered any prejudice. The district court based its ruling on rebuttal evidence the State contended it would have presented at trial had the defense of emotional distress been raised. On appeal, the petitioner argued that it was improper for the district court to consider evidence outside of the direct record on appeal in determining whether he suffered prejudice from appellate counsel’s ineffective representation. The court rejected this argument, holding that the Strickland inquiry into ineffective assistance of counsel requires that court to consider all relevant evidence that the jury would have had before it if trial counsel had pursued a different path, including evidence not in the original appellate record.
Amundsen v. University of Utah
2019 UT 49 (Aug. 15, 2019)
The supreme court affirmed the district court’s dismissal of the plaintiff’s medical malpractice claim against the University of Utah based on the plaintiff’s failure to timely file a notice of claim as required by Utah’s Governmental Immunity Act. The Court held the plaintiff’s notice of claim, filed nearly three years after she received the medical services, was untimely because she knew or should have known at the time of her services that her doctor was a governmental employee.
Cheek v. Iron County
2019 UT 50 (Aug. 16, 2019)
Plaintiff filed a civil rights lawsuit in federal court against Iron County and Iron County’s attorney in his official capacity. On a motion to dismiss, the federal court dismissed the federal claims with prejudice and the state claims without prejudice. Plaintiff refiled her case in state court against Iron County’s attorney, and the district court dismissed the claims on res judicata grounds. The supreme court held that a dismissal is presumptively on the merits, with limited exceptions which apply when the dismissal addresses an “initial bar” to the court’s authority, such as lack of jurisdiction, improper venue, or failure to join an indispensable party. Because the federal court dismissal was “not driven by limitations on the court’s authority,” res judicata barred the plaintiff’s state lawsuit.
Latham v. Office of Recovery Servs.
2019 UT 51 (Aug. 22, 2019)
As a matter of first impression, the supreme court held that the Office of Recovery Services could assert a lien only on the portion of a personal injury settlement that reflected past medical expenses. In doing so, the court observed that the assessment of funds allocable to past medical expenses was a fact-intensive inquiry, and it left to the discretion of the district court the determination of “the appropriate methodology, based on the information at the court’s disposal.”
Utah Court of Appeals
Williamson v. Farrell
2019 UT App 123 (July 18, 2019)
The plaintiffs filed this action seeking a judicial declaration they had not committed elder abuse or breached any fiduciary duties to the husband’s elderly mother, as his siblings had publicly accused them of doing. The district court dismissed the case on the basis there was litigation pending between the parties elsewhere, and the dispute could more effectively be litigated there. The court of appeals reversed, holding that under the Declaratory Judgments Act, a court may only decline to hear an otherwise proper declaratory judgment action where entry of the sought-after declaration would not end the controversy giving rise to the specific lawsuit pending before them. In this case, the district court had taken an overly broad view of this exception, reading it as applying if the declaratory judgment action would not terminate all the underlying disputes encircling the parties.
AGTC Inc. v. CoBon Energy
2019 UT App 124 (July 18, 2019)
CoBon Energy entered into a consulting agreement with Appellants regarding pursuing certain tax credits related to the manufacture of synthetic fuels from coal. Appellants’ principals had significant training and education in mining engineering but were not licensed as professional engineers. CoBon’s principals, however, were licensed professional engineers. Appellants sued for unpaid fees pursuant to the consulting agreement. CoBon asserted Appellants could not recover under the consulting agreement because Utah’s “non-recovery rule” bars unlicensed professionals from seeking enforcement of contracts for professional services where the licensing requirements have been enacted with the purpose of protecting the public. The court of appeals held that CoBon could not invoke the non-recovery rule because its principals were engineers, and “professional engineers of any type may be classified within the same trade or profession,” removing CoBon from the class of individuals intended to be protected by licensing requirements.
Bridge BLOQ NAC LLC v. Sorf
2019 UT App 132 (Aug. 1, 2019)
As a matter of first impression, the court adopted a test for defining the scope of an implied easement, holding that it is based on the parties’ probable expectations at the time of severance. Applying this approach, the court affirmed the district court’s ruling (based on factual findings by the jury at trial) that plaintiff had an implied easement to continue using an alleyway for parking.
McGraw v. University of Utah
2019 UT App 144 (August 22, 2019)
A former employee seeking to sue the University of Utah delivered a putative notice of claim to the University’s general counsel and, two months later, delivered another to the Attorney General’s authorized agent as required by the Utah Governmental Immunity Act. The employee then filed suit against the University two weeks later. On interlocutory appeal from denial of the University’s motion to dismiss, the Utah Court of Appeals emphasized that the Governmental Immunity Act’s claim-initiation procedures require strict compliance and reversed. The first notice of claim was not properly filed with the Attorney General as required by the Act, and the employee failed to allow sixty days to lapse from the time the second notice was delivered before filing her complaint, necessitating dismissal of her suit for lack of jurisdiction.
McQuarrie v. McQuarrie
2019 UT App 147 (Aug. 29, 2019)
Applying principles of contract interpretation, the court of appeals held that the presumption of automatic termination of alimony upon remarriage did not apply, because the decree not only omitted remarriage as a terminating event, but also contained a series of provisions that contemplated its occurrence. These provisions included termination of other types of payments upon remarriage, a prohibition on providing information to future spouses, a limitation on designating a future spouse as beneficiary on an annuity, and continued payoff of a mortgage, even in the event that a party remarried.
Evans v. Sandy City
928 F.3d 1171 (10th Circuit July 5, 2019)
The court held that a panhandling ordinance prohibiting standing or sitting on unpaved medians was not an unconstitutional restriction on free speech because it was a content-neutral restriction, narrowly tailored to the City’s interest in protecting pedestrian safety.
A.N. v. Syling
928 F.3d 1191 (10th Cir. July 8, 2019)
Police officer defendants appealed the district court’s denial of their motion to dismiss the plaintiff’s class-of-one equal protection claim on the basis of qualified immunity. The Tenth Circuit rejected the defendants’ argument that the plaintiff had failed to establish a violation of clearly established law because, even though there was no factually similar precedent, the claim fell within the category of cases for which the United States Supreme Court has held that general rules of clearly established law can suffice. Specifically, “the clearly established rule prohibiting intentional, arbitrary and unequal treatment of similarly situated individuals under the law applies with obvious clarity to Defendants’ alleged actions and policy of discriminating between [the plaintiff] and other” similarly situated individuals.”
United States v. Hansen
929 F.3d 1238 (10th Cir. July 15, 2019)
Hansen appealed his conviction for tax evasion and obstruction asserting his waiver of his right to counsel was not made knowingly and intelligently. The district court asked Hansen, among other things, if he understood that he would need to follow the rules of evidence and procedure if he proceeded to trial without counsel. “Hansen’s response was at best ambiguous and unclear; at one juncture, he specifically told the court that he did not understand that he would be required to abide by these rules.” Nonetheless, the district court accepted the waiver. The court held that the district court failed to engage in a sufficiently thorough colloquy to “properly warn him under the circumstances of this case that – if he proceeded pro se – he would be obliged to adhere to federal procedural and evidentiary rules.”
Burke v. Regalado
— F.3d —, 2019 WL 3938633 (10th Cir. Aug. 20, 2019)
Defendants appealed a multi-million dollar verdict based on violations of 42 U.S.C. § 1983. The court reversed and remanded for a determination of the appropriate setoff based on settlement amount paid by a former co-defendant. In doing so, the court held that the district court abused its discretion when it (a) denied the defendants’ setoff request without knowing the terms of the settlement and (b) denied the defendant’s request for discovery of a settlement agreement with a co-defendant necessary to resolving the setoff issue.
United States v. Garcia
— F.3d — (1oth Circuit September 4, 2019)
Defendant moved to withdraw his guilty plea after it was accepted by a federal magistrate judge on the grounds that the Federal Magistrates Act of 1968 did not permit a magistrate judge to accept a felony guilty plea if the plea is considered a “dispositive matter” under Fed. R. Crim. P. 59. On appeal from denial of his motion, the Tenth Circuit called Mr. Garcia’s arguments “persuasive” and noted that at least three other circuits have embraced similar interpretations of Rule 59’s limitations on magistrate judges as to felony guilty pleas. Though “sympathetic” to such reasoning, the Tenth Circuit nevertheless held that it was bound by prior precedent which “squarely held that magistrate judges can accept guilty pleas.”