Utah Appellate Highlights, Utah Appeals Court, February 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.

In re K.B.,
2017 UT App 210, 407 P.3d 1084 (Nov. 16, 2017)
The juvenile court granted a request for an order of protective supervision, based on its finding that the mother exhibited hatred of and disgust toward the father, which caused emotional harm to the children. Reversing in part and remanding, the court of appeals held that insufficient evidence supported a finding of abuse, where there was no indication that a disagreement over a prom dress or purported custodial interference caused the child to suffer emotional harm that resulted in a “serious impairment in [their] growth, development, behavior, or psychological functioning.” Utah Code Ann. § 78A-6-105(24)(b).

O’Hearon v. Hansen,
2017 UT App 214 (Nov. 24, 2017)

Following the mother’s death, a stepfather filed a petition requesting custody of three minor children under Utah’s Custody and Visitation of Persons Other Than Parents Act, which allows a non-family member to seek custody if the biological parent “is absent” or “is found by a court to have abused or neglected the child.” Utah Code Ann. § 30-5a-103(2)(g). The district court dismissed based on its conclusion that the father alleged a pattern of visiting the children once a month. Reversing, the court of appeals concluded that the statutory language implied a present-tense inquiry. Where the stepfather alleged sufficient facts for a factfinder to conclude that the biological father was not presently present on the exact date of the filing of the petition, the district court erred in dismissing the petition.

Desert Mountain Gold LLC v. Amnor Energy Corp.,
2017 UT App 218 (Nov. 24, 2017)
In this contractual dispute, the defendant argued that the first breach rule excused its non-performance under a royalty payment provision. Giving effect to each part of the contract, the court of appeals held that the defendant could not invoke the first breach rule to excuse its non-performance, where the contract contained specific dispute resolution provisions, which the defendant failed to follow.

Larsen v. Davis Cnty. Sch. Dist.,
2017 UT App 221 (Nov. 30, 2017)

In this appeal, the Utah Court of Appeals was asked to interpret the interplay between the Governmental Immunity Act’s (1) waiver of immunity for injuries proximately caused by the negligent act or omission of a governmental employee and (2) retention of immunity for injuries that arise out of or in connection with certain enumerated conduct, including assault or battery. The case involved claims by a student against his school district for negligent hiring, supervision, and retention of a former teacher who had initiated a sexual relationship with him. The court of appeals held that if an immunity-invoking condition is at least “a proximate cause” of the claimed injury, then the government entity is immune from suit.

Hofheins v. Bajio Mt. W., LLC,
2017 UT App 238 (Dec. 29, 2017)

Bajio was required to indemnify Hofheins for lease payments pursuant to their asset purchase agreement. Bajio failed to make the lease payments, and the property owner sued Hofheins. Hofheins then brought a third party action against Bajio for indemnification. Bajio argued that the Hofheins’ failure to tender the defense precluded Bajio from being required to indemnify the Hofheins, and the third party action should have been dismissed under Rule 41(b). The court of appeals disagreed, holding that the failure to tender a defense imposes on the indemnitee the necessity of establishing that it is entitled to indemnity from the indemnitor, but it does not release the indemnitor from its obligation.

State v. Jamieson,
2017 UT App 236 (Dec. 29, 2017)

The court vacated a restitution order against the defendant who was convicted of computer crimes for stealing and disseminating his bosses’ emails. The court held it was plain error for the district court to include in the restitution figure some amount for time spent by the company’s employees while participating in the criminal case against the defendant – regardless of whether they appeared voluntarily or pursuant to a subpoena.