Utah Appellate Highlights, Utah Court of Appeals, December 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.

Armendariz v. Armendariz,
2018 UT App 175 (Sept. 7, 2018)

In this appeal of a denial of a motion to modify a divorce decree to terminate the alimony award to the wife in light of the husband’s recent retirement, Judge Harris concurred in the affirmance.  He wrote separately in part to “urge family law practitioners and district judges, when negotiating and drafting alimony provisions in decrees of divorce, to make a practice of taking into account the parties’ likely future retirement, and making appropriate ex ante adjustments to the pay or spouse’s future payment obligations to account for significant foreseeable post-retirement changes in the parties’ financial situation.”

Chaparro v. Torero,
2018 UT App 181 (Sept. 20, 2018)

Analyzing the scope of revisions to Rule 4(b) of the Utah Rules of Appellate Procedure, the court of appeals held that the appellant could not appeal as of right from the divorce decree under Rule 4, because the decree contemplated additional determination of the amount of attorney fees.  However, because the district court modified custody as a sanction without considering the best interests of the minor child, the court of appeals concluded that it presented an extraordinary case where it would be appropriate to exercise jurisdiction under Rule 5.

State v. King,
2018, UT App 190 (Oct. 4, 2018)

Vacating a $400 restitution order, the court of appeals held defendant was deprived of effective assistance of counsel, because counsel failed to object to a restitution request after filing a notice of withdrawal.  In doing so, the court noted that proper withdrawal in a criminal case requires approval of the court.  See Utah R. Crim. P. 36.

Wasatch County v. Utility Facility Review Board,
2018 UT App 191 (Oct. 4, 2018)

Wasatch County appealed a decision by the Utility Facility Review Board ordering the County to issue a conditional use permit to Rocky Mountain Power for construction of transmission towers and lines, but the County failed to seek a stay of the decision or construction with the appeals court. By the time the parties had briefed and argued the issues on appeal, the permit was issued and the towers and lines were constructed and in use. Because the County failed to seek a stay of construction during the pendency of the appeal process, the court held that the issues on appeal were moot and dismissed the appeal.

Dole v. Dole,
2018 UT App 195 (Oct. 12, 2018)

In this appeal of a judgment arising from a divorce proceeding, the court held that it lacked jurisdiction to address appellant’s argument that the lower court erroneously denied his post-trial motion because he filed his notice of appeal before the post-trial motion was decided and failed to amend the notice of appeal after the decision was rendered.

Warrick v. Property Reserve,
2018 UT App 197 (Oct. 12, 2018)

In affirming the summary judgment dismissal of a slip and fall claim, the court of appeals held that constructive notice of a dangerous condition should not be imputed when conjecture and speculation are the only ways to determine the length of time the condition existed.  Here, in order to demonstrate that a store owner had constructive notice of an icy sidewalk, the plaintiff had an affirmative duty to present evidence of approximately when the ice formed.  Because plaintiff had presented no evidence demonstrating when the ice had formed, such as temperatures on the preceding days or nights or how long ice takes to form, summary judgment was appropriate.

Bodell Constr. Co. v. First Interstate Fin. LLC,
2018 UT App 199 (Oct. 18, 2018)

A jury found that the defendants defrauded the plaintiff by misrepresenting a real estate investment.  On appeal, the defendants argued that they were entitled to a new trial because the court admitted prejudicial testimony regarding the details of a different fraud lawsuit against them. The court refused to consider this argument because the defendants made no contemporaneous objection or other motion regarding the evidence at trial on which the trial court could rule, and therefore failed to preserve the issue for appeal.  The court affirmed the judgment, concluding that defendants failed to establish any error in the district court’s rulings, and failed to show a significant risk that the jury improperly based its punitive damages award on harm allegedly caused to a non-party.

State v. Hamilton,
2018 UT App 202 (Oct. 25, 2018)

In this securities fraud case, the State and defendant stipulated to $38,000 in restitution and a recommendation of no time in jail, based largely on defendant’s cooperation.  The district court ordered defendant to serve jail time and pay restitution in the amount of $382,085.  Affirming, the court of appeals held the parties’ stipulation regarding restitution was not binding on the district court, and that the district court did not exceed its discretion in ordering restitution in excess of the parties’ stipulation, where the district court relied the presentence report to determine the appropriate amount and applied relevant statutory factors.

Pioneer Builders Company v. KDA Corporation,
2018 UT App 206 (Nov. 1, 2018)

At issue in this appeal was whether a broad provision that terminated and extinguished the rights of a subordinate trust deed holder included a waiver of the statutory right of redemption. In reversing the district court, the court of appeals held that, because the right of redemption was statutorily guaranteed, the broad language of the provision was not sufficient to clearly and unmistakably wave this statutory right because it did not mention redemption rights nor did it refer to the statutory provision.