Utah Appellate Highlights, Utah Supreme 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. Ogden, 
2018 UT 8 (Feb. 27, 2018)

After the criminal defendant pled guilty to two counts of aggravated sexual abuse of a child, the district court entered orders for complete and court-ordered restitution for, among other things, the anticipated cost of mental health treatment for the remainder of the victim’s life.  The defendant appealed these orders.  In evaluating this appeal, the Utah Supreme Court addressed, as a matter of first impression, the level of causation required by the Crime Victims Restitution Act.  It held that the Act requires a district court to include in its complete restitution determination the losses that a defendant proximately causes.  Because the district court applied a different causation standard, the Court remanded for further proceedings.  In doing so, it further instructed that a restitution calculation cannot be based on speculative evidence of losses a victim has incurred or is likely to incur.

Gonzalez v. Cullimore,
2018 UT 9 (Feb. 26, 2018)

In this suit filed to collect a debt purportedly owed to a condominium owners association, the defendant—debtor asserted a counterclaim against the law firm representing the association, arguing the law firm had violated § 1692e of the Fair Debt Collection Practices Act by misrepresenting the amount owed in demand letters the firm had sent to her.  The district court dismissed this claim on summary judgment.  On appeal, the Supreme Court, abrogating a prior Court of Appeals decision, held a law firm is not entitled to reasonably rely upon its client’s representation of the debt owed and must instead have procedures reasonably adapted to avoid this type of error or face liability under § 1692e.

Salo v. Tyler, 
2018 UT 7 (Feb. 22, 2018)

The Court disavowed any prior suggestion in Orvis v. Johnson, 2008 UT 2, that the Utah summary judgment standard is distinct from the federal standard stated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and held that when the burden of production falls on the nonmoving party, the movant can carry its burden of persuasion without putting on any evidence of its own by showing that the nonmoving party has no evidence to support an essential element of a claim.  Applying this standard, the court affirmed summary judgment granted to the defendants, dismissing the plaintiff’s claims for defamation and intentional interference.

State v. Lopez, 
2018 UT 5 (Feb. 9, 2018)

The criminal defendant appealed his murder conviction, arguing the district court erred by admitting the State’s expert testimony and in admitting evidence of prior acts.  The Supreme Court reversed, agreeing on both counts.  With respect to the expert testimony, the Court held the district court abused its discretion in admitting the State’s expert testimony about whether the victim was suicidal.  The State had not satisfied its threshold burden of demonstrating the method of evaluating suicidal risk used by the expert was generally accepted as a means of assessing the risk of suicide in someone who had passed away or that it was reliable when used to assess suicide risk post-mortem.

Gables at Sterling Village Homeowners Association, Inc. v. Castlewood-SterlingVillage I, LLC, 
2018 UT 4 (Feb. 9, 2018) 

After problems emerged with homes located within a planned unit development, the homeowners association asserted claims against the developer, the builders, and their principals.  In reviewing the district court’s grant of a directed verdict in favor of the developer, the Utah Supreme Court was asked to decide, as a matter of first impression, whether expert testimony is required to establish the standard of care in actions claiming a developer breached the limited fiduciary duties recognized in Davencourt at Pilgrims Landing Homeowners Association v. Davencourt at Pilgrims Landing, 2009 UT 65, 221 P.3d 234.  It held the general framework for analyzing the necessity of expert testimony in negligence claims applies in the breach of fiduciary duty context.  Applying that framework to the claims in this case, the Court affirmed the directed verdict on the basis that expert testimony was required to establish the relevant standard of care and the plaintiff did not produce any such testimony.  The Court further reversed the district court’s award of attorney fees to the developer, awarded in response to a post-trial motion for indemnification based on a provision in the homeowners association’s articles of incorporation.  It held that a post-trial motion was not the appropriate vehicle to litigate this claim, which had been asserted as a counterclaim and was not based upon a statute or prevailing party attorney fee clause.  By not litigating its counterclaim, the developer had waived its claim for indemnification.

State v. Ellis, 
2018 UT 2 (Jan. 23, 2018)

In this appeal from a conviction following a jury trial, the Utah Supreme Court addressed the circumstances required to render a witness unavailable under Rule 804 of the Utah Rules of Evidence.  It held the district court erred in determining a witness who refused to attend trial because she had given birth a week before, several weeks prematurely, and her baby had come home from the hospital just three days before the trial began was “unavailable.”  In order to be “unavailable” under Rule 804(a)(4) based on an illness, the illness must be “of sufficient severity and duration that the witness is unable to be present over a period of time within which the trial reasonably could be held.”  There was no such showing in this case.

Zimmerman v. Univ. of Utah, 
2018 UT 1 (Jan. 23, 2018) 

In this case, the Utah Supreme Court declined to answer two questions certified by the United States District Court for the District of Utah.  Both questions implicated the free speech clause of the Utah Constitution.  Expressing concern about the briefing, the Court declined to exercise its discretionary authority to answer certified questions because the parties failed to address the precise constitutional issues.