Utah Appellate Highlights, 2023

Snow Christensen & Martineau Appellate Highlights

As seen in the Utah Bar Journal 

Authored by Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, and Andrew Roth


Utah Supreme Court

Utah Sage, Inc. v. Pleasant Grove City

2023 UT 2 (Feb. 23, 2023)

This appeal arose out of a challenge to a municipality’s transportation utility fee (TUF). The supreme court held that the municipality acted within its authority under the General Welfare Statute in enacting a TUF to address deteriorating street conditions. Reversing the district court’s classification of the TUF as a tax, the supreme court held the TUF, as a specific charge for specific service, was characteristic of a fee and remanded for a determination of reasonableness under the V-1 Oil test.

State v. Miller

2023 UT 3, 527 P.3d 1087 (March 16, 2023)

Rule 4(c) saves State’s premature notice of appeal, filed three years before final judgment. The court reasoned that there was “no doubt” that the order finalized the court’s oral ruling from three years prior, even though that order had been decided by a different judge. The court also held that a victim of stalking need not know that the defendant is the source of the emotional distress the stalking is causing.

Hi-Country Ests. Homeowners Assoc. v. Frank, 2023 UT 7 Hi-Country Ests. Homeowners Assoc. v. Mountaintop Props., LLC,

2023 UT 8, 529 P.3d 337(March 16, 2023)

An HOA formed in 1973 sued homeowners for past-due assessments. When the HOA was formed, it owned only eight of the 2,000 acres included in the HOA today. The court held that the lot owners ratified the defective HOA documents and therefore owed the HOA past-due assessments. Rejecting a statute of frauds challenge, the court held that the HOA members’ decades-long treatment of the HOA as a legitimate governing entity constitutes ratification of the HOA’s authority and satisfies the statute of frauds.

Matter of Discipline of Kinikini

2023 UT 17, 533 P.3d 1156 (July 20, 2023)

In this attorney discipline case, the Supreme Court rejected the attorney’s argument that, where the basis for discipline is the attorney’s criminal conduct, the court must evaluate the actual conduct, not just the elements of the crime. The Rules of Professional Practice direct a court to consider only the elements of the crime itself when determining whether that crime reflects adversely on an attorney’s honesty, trustworthiness, or fitness to practice law.


Utah Court of Appeals

State v. Graydon

2023 UT App 4, 524 P.3d 1034 (Jan. 20, 2023)

Graydon was charged with aggravated assault in connection with a road rage incident. To prove aggravated assault, the prosecution was required to establish, among other things, that Graydon made “a threat” and that the threat was “accompanied by a show of immediate force or violence.” At trial, the prosecution told the jury that Graydon’s display of a firearm during the incident amounted to both a threat and a show of immediate force. On appeal from his conviction, Graydon argued that the prosecution could not use a single act to prove more than one element of the crime of aggravated assault. The court of appeals disagreed, holding as a matter of first impression that “a single act or single series of acts may be used to prove more than one element of a crime.”

Mower v. Mower

2023 UT App 10, 525 P.3d 110 (Jan. 20, 2023)

After the trial court had entered a bifurcated decree of divorce, the husband died. The bifurcated decree had left all financial matters for later resolution. When husband died, the trial court believed the divorce case abated, and dismissed it. The court of appeals reversed, holding that abatement upon death does not apply when a bifurcated divorce decree has been entered and that the court retained jurisdiction to resolve the reserved matters.

Mintz v. Mintz

2023 UT App 17, 525 P.3d 534 (Feb. 9, 2023)

In this appeal from a divorce decree, the trial court erred in excluding an allowance for investment from its alimony calculation, where the evidence showed that the parties had a standard practice of annually investing marital assets and doing so contributed to the marital standard of living. However, the court did not abuse its discretion in rejecting one party’s argument that unmet needs should be reduced to reflect the other party’s potential ability to earn income from awarded investment accounts.

Myers v. Myers

2023 UT App 20 (Mar. 2, 2023)

In the context of a petition to modify an alimony award, once the court finds a material change in circumstances, it is required to conduct a complete analysis of all of the statutory and Jones alimony factors. Even if the change of circumstances indicates that the payor can pay more, the amount remains limited by the recipient’s demonstrated need – including earning capacity – at the time of modification.

State v. Elkface

2023 UT App 24, 527 P.3d 820 (March 9, 2023)

Vacating sentences based upon ineffective assistance of counsel, the court of appeals held counsel performed deficiently by failing to seek disqualification of the judge or obtain a valid waiver, where the judge would have been subject to disqualification under Rule 2.11(A) due to his prior involvement with the defendant.

Nielsen v. LeBaron

2023 UT App 29, 527 P.3d 1133 (March 23, 2023)

This appeal arose out of a legal malpractice action stemming from allegations that counsel failed to deposit settlement funds in a minor’s trust account. The lower court dismissed after concluding that counsel did not owe continuing duties to ensure that conservators appropriately applied the funds. Reversing, the court of appeals held that, although the statute and case-specific facts may be relevant to the issue of breach, the Uniform Probate Code did not negate an attorney’s common law duty of reasonable diligence with respect to management of client funds.

Barker v. Labor Comm’n

2023 UT App 31, 528 P.3d 1260 (April 6, 2023)

The Labor Commission attributed 75% of appellant’s chronic obstructive pulmonary disease (COPD) with emphysema to his history of smoking, and the balance to industrial causes, and reduced his award of disability benefits accordingly. The court of appeals held that the employer bears the burden of proof when it comes to the apportionment of benefits – an issue not specifically addressed in the Occupational Disease Act. But because the employee’s disability was caused by only one disease – COPD with emphysema – apportionment was not appropriate except in limited circumstances not present here.

RainFocus v. Cvent

2023 UT App 32, 528 P.3d 1221 (April 6, 2023)

Cvent filed a federal lawsuit against RainFocus alleging trade secret misappropriation, tortious interference, and related claims. RainFocus then sued Cvent in state court alleging that Cvent’s repeating of allegations in the federal lawsuit to customers and others amounted to defamation. The court of appeals held that Cvent’s repeating the federal lawsuit allegations to others amounted to excessive publication removing the statements from the  absolute privilege.

Nelson v. Nelson

2023 UT App 38 (April 13, 2023)

In this appeal, the court of appeals discussed the distinction between doctrines of res judicata and the law of the case in a divorce case, concluding proceedings seeking to modify the decree and an order to show cause based upon the original decree would be treated as separate cases for res judicata purposes. It further held that claim preclusion did not bar subsequent claims for unpaid child support, where the first case did not involve an affirmative claim for arrears, and such a claim did not arise out of the same transaction as those giving rise to the petition to modify.

Brown v. City of Fruit Heights

2023 UT App 39 (April 13, 2023)

In reviewing the district court’s grant of summary judgment to the defendant in this slip-and-fall case, the court of appeals concluded that the district court did not impermissibly weigh evidence despite the use of phrases such as “I do not find” or “not enough evidence” in its oral ruling. The court of appeals clarified that “[i]t is nevertheless good practice, even in oral rulings, for district courts to be cognizant of word choice when making rulings, in order to head off unnecessary appellate wrangling.”


Use of “cleaned up” or “quotation simplified”

In three opinions issued in April 2023, the Utah Court of Appeals included a footnote addressing the proper use of the parentheticals “(cleaned up)” and “(quotation simplified).” The court explained, “These parentheticals are powerful editing tools because they make legal writing less tedious, more streamlined, and more concise. But their appeal begets a temptation to misuse them.” Proper use includes to “indicate the omission of internal  quotation marks, brackets, ellipses, emphases, internal citations, and footnote signals in published sources, as well as the traditional parenthetical notation referencing a prior case or cases being quoted.” They should not be used “with (1) quotations from unpublished sources not readily available to the public (namely, briefs, lower court documents, and transcripts) and (2) quotations of parenthetical language from cases citing other cases.” The Court noted it “expect[s] practitioners who choose to employ these devices to abide by these . . . strictures.” See Rain Focus Inc. v. Cvent Inc., 2023 UT App 32, ¶ 6 n.7; State v. Patton, 2023 UT App 33, ¶ 10 n.3; Fernwood Place LC v. Layton Partners Holding LP, 2023 UT App 43, ¶ 9 n.4.

Graves v. Utah County Government

2023 UT App 73 (July 6, 2023)

Graves, a former commissioner for Utah County, sued the county, his fellow commissioners, and a county employee, claiming they defamed him in connection with the disclosure to the media of internal reports of alleged harassment. The court of appeals affirmed dismissal of Graves’ vicarious liability claims against the county on the basis of governmental immunity, holding that Utah’s Governmental Immunity Act does not waive the “broad, background” immunity of a governmental entity for intentional torts, including deliberate defamation. However, the appellate court reversed dismissal of the underlying claims against the individual defendants, reasoning that the Act waives immunity for individual governmental employees who engage in “willful misconduct.” Because Graves adequately alleged that the individual defendants engaged in “willful” defamation, the individual defendants were not immune and Graves’ claims against them could proceed past the pleading stage.

Anderson v. Daggett School District

2023 UT App 76 (July 20, 2023)

In this appeal from a hearing officer’s determination upholding the termination of a teacher, the court of appeals addressed its jurisdiction over the matter. The court of appeals had previously transferred the plaintiff’s petition filed in that court to the district court. The district court dismissed for lack of jurisdiction. On appeal, the court first evaluated its jurisdiction, which turned on the interplay between two versions of the statute governing appeals from final decisions of a school board. After discussing the law regarding retroactivity and applying the distinction set out in Hughes Aircraft Co. v. United States ex. rel. Schumer, 520 U.S. 939, 951 (1997), the court held that the amended statute is procedural because it addresses which court has jurisdiction as opposed to creating jurisdiction. Under the amended statute, the court of appeals has jurisdiction. The court additionally held the hearing officer had applied the wrong standard and should have reviewed the case under the consistency and proportionality standard. Even though that standard had not been specifically applied to public educators, such individuals are public employees and the standard applies equally to cases involving their termination.

Mariani v. Dep’t of Pub. Safety – Driver License Div.

2023 UT App 79 (July 20, 2023)

The defendant retained immunity for a claim based upon personal injuries sustained incident to a motorcycle skills test under the licensing exception of the Governmental Immunity Act. The court of appeals concluded that statutory changes had abrogated the proximate cause approach set forth in Barneck v. Utah Department of Transportation, 2015 UT 50, 353 P.3d 140.

State v. James

2023 UT App 80 (August 3, 2023)

In this criminal appeal, the Utah Court of Appeals addressed a trial court’s failure to invite the defendant to exercise his right of allocution under Article I, Section 12 of the Utah Constitution and Utah R. Crim. P. 22(a). The trial court’s failure to “address the defendant personally” and “permit [him] to address the court” in line with the right of allocution was not only an error, but an obvious one that prejudiced the defendant. Adopting the approach laid out by the Tenth Circuit in United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017), the appellate court explained that denial of the right to allocution is “presumptively prejudicial” and warrants reversal absent a showing of “extraordinary circumstances.”

Kendall v. Utah Est. Planners PLLC

2023 UT App 82 (August 3, 2023)

In this legal malpractice case, the court held that the requirement for expert testimony applies equally in cases tried to the bench and to a jury. It rejected an argument that a different (and more lenient) standard for evaluating the necessity of expert testimony should have applied because the trial judge operates as a “sophisticated trier of fact” for whom expert testimony is not always necessary. 

Knight v. Knight

2023 UT App 86 (August 10, 2023)

This case contains a detailed analysis of several alimony issues. The court held that a spouse cannot include expenses in an alimony claim that are to replace services previously performed by the other spouse during the marriage – in this case, pool and yard maintenance. It held that the wife’s health insurance expense should be limited to the cost of a high deductible plan. Although the parties had such a plan during the marriage, the husband’s family had funded an HSA to cover the deductible. The HSA funding, however, was not part of the marital lifestyle because it was a gift from husband’s parents. The trial court erred by adopting a personal grooming figure for wife that was supplied by husband’s counsel, who asserted without evidence that it “makes ‘quite a nice budget.’” The court also erred by rejecting wife’s claimed grooming and savings expenses on the sole basis that husband did not claim a need for a comparable expense, finding that such an approach simply invites parties to game the system.

Griffin v. Snow Christensen and Martineau

2023 UT App 88 (August 17, 2023)

In this case, the trial court held after an evidentiary hearing that the person served with a summons was not a “managing agent” and that service was therefore defective under Rule 4. The court of appeals reversed and held that, in In re Schwenke, 2004 UT 17, 89 P.3d 117, the supreme court departed from the strict language of Rule 4 and “directed courts to apply this rule ‘in a manner that will best effectuate’ its ‘purpose of giving the defendant adequate notice,’ such that service would be considered ‘fair in light of all the surrounding circumstances.’” Judge Oliver dissented, asserting that the supreme court has not adopted a test that departs from the text of the rule and that the decision “risks actual notice becoming the test.”

Christensen v. Labor Comm’n

2023 UT App 100 (August 31, 2023)

Affirming the administrative board’s decision on retaliation, the court clarified the standard for proving an adverse action under the Utah Antidiscrimination Act and held the statute does not permit recovery of noneconomic damages. The court also held that neither back pay nor reinstatement were appropriate remedies in the absence of constructive discharge or job loss.


10th Circuit

Bruce v. City and County of Denver

57 F.4th 738 (Jan. 10, 2023)

Affirming dismissal of section 1983 claims, the Tenth Circuit held the Rooker-Feldman doctrine (which ordinarily bars federal courts from exercising jurisdiction over cases arising out of state-court judgments) applied, even though plaintiff was not a named defendant, because he was a claimant in the state-court receivership proceedings and possessed the right to appeal.

Citizens for Constitutional Integrity v. United States

57 F.4th 750 (Jan. 10, 2023)

The Congressional Review Act does not violate the separation of powers, equal protection, or due process. Every CRA resolution is enacted by a majority vote of both houses of Congress and signed by the President. And, the subject at issue – regulation of surface coal mining – is not one of the Executive’s exclusive powers.

In re Doll

57 F.4th 1129 (Jan. 18, 2023)

In this bankruptcy appeal, the Tenth Circuit addressed whether a Chapter 13 trustee may deduct and keep the trustee’s fee for disbursing payments to creditors when a Chapter 13 plan is not confirmed. If such a plan is confirmed, the trustee receives a percentage of each disbursed payment as the trustee’s fee. If a plan is not confirmed, however, the relevant statutes “unambiguously require[] a Chapter 13 standing trustee to return pre-confirmation payments to the debtor without deducting the trustee’s fee.”

United States v. Salti

59 F.4th 1050 (Feb. 6, 2023)

Salti was ordered to pay the victim of his case $35,000 in restitution, owed jointly and severally with a co-defendant. The co-defendant, in turn, was ordered to pay $72,000 to the victim, owed jointly and severally with Salti. Salti deposited $35,000 with the court, but the clerk had already split the co-defendant’s first payment of $5,117.92 and applied half to Salit’s account and half to the co-defendant’s account. The issue on appeal was whether Salti was owed a refund of $2,487.87 because the co-defendant’s payment already paid a part of Salti’s restitution. Holding the district court did not err in granting the government’s motion to prevent the clerk from paying  Salti a refund, the court held, in line with other courts that have addressed the issue, that the restitution obligation is not satisfied until a defendant has paid the amount apportioned to that defendant individually or the victim has been made whole for the entire harm.

United States v. Wesley

60 F.4th 1277 (Feb. 28, 2023)

Siding with the Second, Fourth, Sixth, Seventh, Eighth, and D.C. Circuits, the Tenth Circuit held that a challenge to a defendant’s conviction or sentence is not a proper ground for compassionate release under 18 U.S.C. § 3582(c)(1), which provides for a discretionary sentencing reduction upon a showing of “extraordinary and compelling reasons.” Instead, a challenge to a defendant’s conviction or sentence may be raised solely via a motion to vacate sentence under 28 U.S.C. § 2255. Wesley’s claim that prosecutorial misconduct tainted his conviction, therefore, was not an “extraordinary and compelling reason” for a sentencing reduction under Section 3582(c)(1) but a challenge under Section 2255.

United States v. Diaz-Menera

60 F.4th 1289 (Feb. 28, 2023)

As a matter of first impression, the Tenth Circuit held the district court did not err in applying the base-level offense for drug conspiracy, even though the defendant did not personally possess or distribute drugs and only pleaded guilty to conspiracy to launder money, where the defendant was a member of the underlying drug conspiracy.

High Lonesome Ranch v. Board of County Commissioners

61 F.4th 1225 (Mar. 6, 2023)

The owner of ranch property through which two intersecting roads ran brought an action in state court against the county in which the property is situated seeking declaratory and injunctive relief that the disputed portions of the roads are private. The county moved to dismiss in light of the plaintiff’s failure to name the U.S. Bureau of Land Management (BLM) as a party. The state district court ordered the plaintiff to join the BLM, which the plaintiff did. The BLM then removed the case to federal court. For the first time on appeal, the plaintiff advanced various arguments as to why the district court did not have subject matter jurisdiction, including challenging the district court’s removal jurisdiction under the “derivative jurisdiction” doctrine. That doctrine “generally provides that federal courts lack jurisdiction if the state court lacked jurisdiction before removal.” As a matter of first impression, the Tenth Circuit joined six other circuits that hold derivative jurisdiction issues are waivable. This reflects the view that derivative jurisdiction is a procedural bar and does not concern Article III subject matter jurisdiction.

United States v. Braxton

61 F.4th 830 (Mar. 7, 2023)

The Tenth Circuit reversed the district court’s order denying the criminal defendant’s motion to suppress a gun found in his backpack after he was arrested. The government had conceded that the warrantless search of the backpack was not a valid search incident to arrest but invoked the inevitable-discovery doctrine, arguing that law enforcement would have validly impounded the backpack as a matter of community caretaking and searched the backpack as part of a standard inventory search. Applying the factors identified in United States v. Sanders, 796 F.3d 1241 (10th Cir. 2015) as relevant to whether there was a reasonable and  legitimate, non-pretextual community-caretaking rationale, the Tenth Circuit held the factors “cut significantly against a community-caretaking rationale.” The defendant’s girlfriend, who had asked to take the backpack, was an alternative to impoundment; the backpack was not implicated in the defendant’s crime; and, the defendant did not consent to the impoundment. Under these facts, the government had not met its burden of proving that it was inevitable the officers would have impounded the backpack under a reasonable community-caretaking rationale.

United States v. Orduno-Ramirez

61 F.4th 1263 (March 10, 2023)

The issue before the panel in this appeal was whether a post-plea intrusion into a criminal defendant’s 6th Amendment rights amounts to a per se violation. Following Orduno-Rameriz’s plea, he learned that five jailhouse recordings of conversations with his lawyers were produced to the government in response to an overly broad subpoena in an unrelated case. The Tenth Circuit previously held in Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) that a pre-plea and pre-conviction intrusion was a per se violation thereby negating the need to prove prejudice. Here, the Tenth Circuit held that a post-plea intrusion does not amount to a per se violation because it did not raise the same concerns as a pre-plea intrusion.

United States v. Slinkard

61 F.4th 1290 (March 14, 2023)


United States v. Jimenez

61 F.4th 1281 (March 14, 2023)

Fed. R. Crim. P. 32 codifies a criminal defendant’s right to “allocution” at sentencing, including the right to “to make a statement in his own behalf” and “to present any information in mitigation of punishment.” In Slinkard and Jimenez, the Tenth Circuit held that a district court is prohibited from interfering with the right to allocution by “conveying to the defendant that allocuting would be a waste of time.” In each case, before allowing the defendant to speak, the district court announced that it would not vary from the sentencing guideline range in passing sentence. In explicitly or implicitly suggesting it had already made up its mind on the variance issue, the district court impermissibly limited the scope of the defendant’s allocution.

Safeway Stores 46 Inc. v. WY Plaza LC

65 F.4th 474 (April 7, 2023) – DNC

In this lease dispute, the Tenth Circuit held the district court erred in sua sponte granting summary judgment to the defendant on the plaintiff’s declaratory judgment claim on the basis of laches. Although the defendant had raised laches in opposition to the plaintiff’s motion for summary judgment, it did not assert it as a basis for summary judgment in its favor. Thus, the plaintiff did not have notice that it needed to come forward with all of its evidence on this issue.

DIRTT Envtl. Sols., Inc. v. Falkbuilt, Ltd.

65 F.4th 547 (April 11, 2023)

In this trade secret case involving a Colorado corporation, a Canadian competitor, and individuals based in Utah, the court held as a matter of first impression that it was abuse of discretion to dismiss the action on forum non conveniens grounds while at the same time allowing the action to proceed against other defendants.

Valdez v. Macdonald

66 F.4th 796 (April 24, 2023)

In this 42 U.S.C. § 1983 action alleging excessive force against a municipality and its police officers, the trial court denied the municipal defendant’s motion for summary judgment and its subsequent motion for judgment as a matter of law. After an adverse verdict, the municipal defendant elected to appeal only the district court’s denial of its motion for summary judgment. Because the municipal defendant failed to appeal the district court’s denial of its Rule 50(a) motion, the Tenth Circuit declined to review any mixed questions of law and fact raised on appeal. Citing the Haberman rule, which holds that “[p]ost-trial appeals of summary judgment denials are proper only if they concern pure issues of law,” the Tenth Circuit explained that it simply could not “engage with the facts of the case or examine the summary judgment record” on appeal.

Crow Tribe of Indians v. Repsis

74 F.4th 1208 (10th Cir. July 24, 2023)

In this lengthy dispute between the Tribe and Wyoming regarding the Tribe’s treaty hunting rights, the Tribe filed a motion for relief from the Tenth Circuit’s judgment entered in 1995 under Rule 60(b) based on a Supreme Court decision issued in Herrera v. Wyoming, 139 S. Ct. 1686 in 2019. The district court held it lacked jurisdiction to grant relief from the judgment because the Tenth Circuit had relied on alternative grounds for affirmance from the basis of the district court’s order. After concluding the motion was timely, the Tenth Circuit reversed, holding that the district court abused its discretion in holding it lacked jurisdiction. The district court had misapplied the Supreme Court’s decision in Standard Oil Co. v. U.S., 429 U.S. 17 (1976). Under that case, “a district court acting on a Rule 60(b) motion does not  disrespect an appellate court’s mandate because the motion implicates possible later events unrelated to the prior mandate issued by the appellate court.”

Chase Manufacturing, Inc. v. Johns Manville Corp.

79 F.4th 1185, No. 22-1164 (10th Cir. August 21, 2023)

The district court dismissed Chase Manufacturing’s claims of monopolization and unlawful tying arrangements under the Sherman Antitrust Act. The Tenth Circuit reversed and remanded Chase’s monopolization claim. Such a claim requires, in short, the plaintiff prove “(1) monopoly power, (2) exclusionary conduct, and (3) antitrust injury.” In assessing whether a monopolist’s actions satisfy the exclusionary conduct prong, the court adopted the
Eleventh Circuit’s standard in McWane, Inc. v. FTC, 783 F.3d 814, 834 (11th Cir. 2015): “[t]he test is not total foreclosure [of the competitor from the monopolist’s market], but whether the challenged practices bar a  substantial number of rivals [from entering] or severely restrict the market’s ambit.”

Matney, et al. v. Barrick Gold of North America, et al. 

80 F.4th 1136, 22-4045 (10th Cir. September 6, 2023)

Participants in an employer-sponsored defined-contribution retirement plan sued under ERISA, alleging that the employer’s benefits committee breached the duty of prudence by offering high-cost funds and incurring high recordkeeping fees, and that employer and board of directors breached their duty to monitor fiduciaries by failing to oversee committee’s actions. In an issue of first impression, the Tenth Circuit joined the Third, Sixth, Seventh, and Eighth Circuits in finding that claims for imprudence can be based upon fees being too high compared “to available cheaper options.” But the court, adopting the Eighth Circuit’s pleading standard, held that for a plaintiff “to raise an inference of imprudence through price disparity, a plaintiff has the burden to allege a ‘meaningful benchmark.’” Whether a comparison is “meaningful” will be “context specific.” “A court cannot reasonably draw an inference of imprudence simply from the allegation that a cost disparity exists; rather, the complaint must state facts to show the funds or services being compared are, indeed, comparable. The allegations must permit an apples-to-apples comparison.”