Utah Appellate Highlights, Utah Appeals Court, April 2018

Case summaries for Appellate Highlights are authored by members of Snow Christensen & Martineau’s Appellate Practice Group.  For more information, visit our Appellate Highlights page.

State v. Sosa-Hurtado, 
2018 UT App 35 (Mar. 1, 2018)

The defendant was convicted of multiple felonies, including a first-degree felony conviction for aggravated murder.  The defendant argued on appeal that the aggravator (knowingly creating a great risk of death to the victim’s father) was unsupported by evidence.  Based on analysis of the two previous Utah cases in which the aggravator was at issue, as well as persuasive authority from other jurisdictions, the Court identified three main factors that should influence the decision as to whether the “great risk of death” aggravator applies: (1) the chronological relationship between the defendant’s actions towards the victim and the third-party; (2) the proximity of the third-party and the victim at the time of the acts constituting the murder; and (3) whether and to what extent the third-party was actually threatened.   Applying these factors, the Court found all three weighed in favor of applying the aggravator, and that there was therefore sufficient evidence for the jury to find the defendant had placed the victim’s father at great risk of death.    

Timothy v. Pia, Anderson, Dorius, Reynard & Moss LLC, 
2018 UT App 31 (Feb. 23, 2018)

The plaintiff—creditors sought to recover funds that debtors paid to a law firm under a theory of fraudulent transfer.  The court of appeals affirmed the district court’s grant of summary judgment to the law firm and one if its lawyers, holding the law firm was not a “transferee” of the funds at issue under Utah’s Uniform Fraudulent Transfer Act because it held the funds in its trust account in a fiduciary capacity and did not have legal dominion or control over the funds.  

State v. Smith,
2018 UT App 28 (Feb. 15, 2018) 

In an opinion emphasizing the importance of a clear record that a criminal defendant understands the consequences of waiving the right to counsel at sentencing, the Court of Appeals vacated a sentence entered without counsel for the defendant present.  Although the Court concluded the criminal defendant clearly expressed a desire to be sentenced without counsel, it held his waiver was not sufficiently knowing and intelligent to be valid.  This was true despite the district court’s attempts to conduct a colloquy with the defendant. 

Utah Dep’t of Transp. v. Target Corp.,
2018 UT App 24 (Feb. 8, 2018) 

UDOT appealed the district court’s award of $2.3 million in severance damages in connection with UDOT’s condemnation of a portion of property owned by the claimants.  In evaluating the claim for severance damages based on a loss of visibility, the Court of Appeals held the presumption of causation that exists when visibility issues stem from a “structure” built on the taken property does not require the view-impairing structure to be entirely constructed within the taken parcel.  It further held the appropriate “structure” for purposes of this analysis was the freeway interchange, rather than only the component parts constructed on the taken property as UDOT maintained.  Based on these and other rulings, the Court affirmed the entire award of severance damages.     

Vered v. Tooele Hosp. Corp.,
2018 UT App 15 (Jan. 25, 2018) 

This case involved an unsuccessful assertion of privilege.  The district court ordered production, notwithstanding a party’s claim that the care-review privilege applied.  The Court of Appeals affirmed, clarifying that Rule 26 of the Rules of Civil Procedure requires a party to provide a privilege log setting forth sufficient information to evaluate an assertion of the claim-review privilege.  Because the party asserting the privilege failed to provide an adequate privilege log or affidavit, the district court did not abuse its discretion in concluding the party failed to carry its burden of demonstrating a privilege protected the documents from discovery.      

Lee v. Williams,
2018 UT App 16 (Jan. 25, 2018) 

The district court dismissed the plaintiff’s medical malpractice claim on statute of limitations grounds after the jury found she knew that she “might have sustained an injury” more than two years before she filed her complaint. The Court of Appeals reversed and remanded for a new trial.  Among the various issues addressed on appeal, the Court held it was error for the district court to instruct the jury that “discovery of an injury from medical malpractice occurs when an ordinary person through reasonable diligence knows or should know that she might have sustained an injury.”  The addition of the words “might have” impermissibly relaxed the burden of proof that defendants were required to meet for their statute of limitations defense.  The Court also held the defendants’ pre-trial ex parte contact with a nurse who had treated the plaintiff was improper and warranted a sanction under Sorensen v. Barbuto, 2008 UT 8, regardless of whether confidential details of the plaintiff’s care were in fact discussed and regardless of whether actual prejudice resulted from the contact.  

Lane v. Provo Rehab. & Nursing,
2018 UT App 10 (Jan. 19, 2018) 

The plaintiff asserted a claim that the defendant residential nursing facility was vicariously liable for both its nurse’s error in administering medication and subsequent concealment of that error.  At trial, the jury found the defendant was not liable for the act of concealment and allocated fault to it only for the initial error.  The plaintiff appealed, arguing knowledge of the mistake should have been imputed to the defendant under the principles of agency.  The Court of Appeals agreed, holding that because the nurse was acting in the course and scope of her employment when she committed the error, knowledge of the error was imputed to the employer.

John Kuhni & Sons v. Labor Comm’n,
2018 UT App 6 (Jan. 5, 2018) 

The Labor Commission issued a notice of violation of regulations to the plaintiff by sending the notice via FedEx with return receipt requested.  The plaintiff argued the use of FedEx rendered the notice insufficient to trigger the applicable thirty-day statute of limitations, as the Utah Occupational Safety and Health Act expressly stated the notice must be sent by certified mail. The Court of Appeals agreed, holding the legislature intended the term “certified mail” to refer only to items sent via certified mail through the United States Postal Service, and that service by FedEx was therefore insufficient. 

Venuti v. Cont’l Motors Inc.,
2018 UT App 4 (Jan. 5, 2018)

The Court of Appeals reversed the district court’s determination that it had personal jurisdiction over the nonresident defendant, a manufacturer of a helicopter motor, in this lawsuit arising from a deadly crash.  After a thorough analysis of the “stream of commerce” theory of specific jurisdiction applicable in product defect cases, the Court held that the nonresident manufacturer’s general business activities in Utah, which were unrelated to the subject of the lawsuit, were insufficient to establish specific personal jurisdiction.