SCM NEWS & OPINIONS

Recent Utah Appellate Decisions June/July 2019

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

 

Utah Supreme Court

State v. Hon. Ann Boyden,
2019 UT 11 (March 20, 2019)

The State convicted Bela Fritz of criminal drug charges and he was sentenced to prison using Bela Fritz’s criminal history.  Then, during the prison intake process, a corrections officer discovered that the man was not Bela Fritz after all.  The State moved to vacate the conviction and sentence under Rule 60(b) and the man opposed the motion.  The district court denied the motion, holding that the State’s only avenue for relief was the PCRA.  On a Rule 65B petition for extraordinary relief, the Supreme Court held that in this “somewhat unconventional” case, the district court had jurisdiction to entertain the Rule 60(b) motion “because neither the PCRA nor any other statute or rule governs this aspect of criminal proceedings.”

Sumsion v. J. Lyne Roberts & Sons, Inc.,
2019 UT 14 (April 26, 2019)

The Supreme Court held that a contractor that created an artificial condition on land of another may owe a duty of reasonable care to the employees of the land owner.  The Supreme Court held that Restatement (Second) of Torts §§ 385, 394-398, and 403-404 provided the proper framework for the analysis.

 

Utah Court of Appeals

In re CCW,
2019 UT App 34 (March 7, 2019)

Mother petitioned to terminate parental rights of father, who had abandoned the children and twice been incarcerated for violently attacking the mother along with another woman.  For purposes of the best interest analysis, the Court of Appeals held that simply because there is no history of domestic violence toward children, district courts cannot compartmentalize and ignore domestic violence against others, including the mother in the instant case, and must carefully weigh the potential impact of that violence on the children even if not visited upon the children.

McCloud v. State,
2019 UT App 35 (March 14, 2019)

The Court of Appeals recognized a new exception to the procedural rule barring PCRA claims that could have been raised on direct appeal.  The court held that claims that could have been raised in a Rule 23B motion will not be barred post-conviction when, as here, the record on appeal did not indicate a reasonable probability that developing those claims would have resulted in reversal.

California College v. UCN,
2019 UT App 39 (March 21, 2019)

In a dispute between a telephone system provider and for-profit colleges, the Court of Appeals granted interlocutory review to decide whether the trial court properly denied a motion to exclude the plaintiffs’ two experts.  The district court reasoned that issues of conflicting data went to the weight of the evidence.  Because both sides agreed that the underlying data was flawed, the Court of Appeals reversed, holding that the district court had abused its discretion by admitting the experts’ testimony where their opinions were developed from a data set both parties agreed was unreliable.

Williams v. Kingdom Hall,
2019 UT App 40 (March 21, 2019)

The plaintiff sued her church for negligent and intentional infliction of emotional distress after she was subjected to church disciplinary proceedings and forced to listen to an audio recording of her being raped by another church member for several hours, while church leaders questioned whether she consented to various acts on the tape.  The Court of Appeals affirmed the district court’s dismissal of these claims under the Establishment Clause of the First Amendment, because they would require inquiry into the appropriateness of the church’s conduct in applying a religious practice.

Windsor Mobile Estate v. Seazy,
2019 UT App 44 (March 21, 2019)

In this appeal from an order dismissing claims for failure to prosecute, the Court of Appeals addressed “the misuse of a third-party action,” which it described as a common mistake, and took an “opportunity to remind practitioners of the quite limited proper usage of third-party complaints.”  It explained, “a third-party claim may be asserted under Rule 14(a) only when the third party’s liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defending party.”

State v. Miller,
2019 UT App 46  (March 28, 2019)

The Court of Appeals reversed the district court’s order arresting the defendant’s conviction for stalking, holding that the State need not prove the defendant knew or should have known that his emails about the victim would be shared with her in order to establish the elements of a stalking charge.  The defendant had sent several emails to the attorney for his former employer about the victim, a former coworker.  As long as the State proved beyond a reasonable doubt that at the time the defendant sent the emails, he knew or should have known that a reasonable person in the victim’s circumstances would suffer significant mental or psychological suffering, the knowledge element of stalking is established.

Luna v. Luna,
2019 UT App 57 (April 11, 2019)

The plaintiff was injured in a car accident while his sister was giving him a ride to work. He sued his sister and the other driver, claiming both were negligent.  The plaintiff testified unequivocally in his deposition that his sister had the green light.  The court held that a party’s deposition testimony constitutes a binding judicial admission if four factors are present: 1) the statement is made under oath in the course of the current judicial proceeding; 2) the testimony is unequivocal; 3) the statement is about a factual issue within the party’s knowledge; and 4) giving conclusive effect to the testimony is consistent with the public policies of conserving judicial resources.  Applying this test, the court held that the plaintiff’s testimony about the color of the light was a binding judicial admission that he could not dispute using the other driver’s testimony.

Cox v. Hefley,
2019 UT App 60 (April 18, 2019)

In this domestic case, the appellant argued the district court erred in entering a modified decree of divorce contained provisions authorizing a third party neutral to restrict parent time.  The court of appeals rejected this argument, and it held that the appointment of a neutral third-party to act as buffer between the parties and ensure compliance with an existing court order was not contrary to Utah law, where the district court retained continuing jurisdiction and the neutral’s decisions were reviewable by the court.

Bloom Master Inc. v. Bloom Master LLC,
2019 UT App 63 (April 25, 2019)

In this case involving a claim the buyer breached a promissory note by underpaying, the Court of Appeals reversed the district court’s order granting summary judgment to the buyer based on a provision of a promissory note allowing an unspecified reduction in payments if the subject product “failed to generate expected sales numbers.”  The Court of Appeals held that the provision was an unenforceable agreement to agree despite the fact that it contained mandatory language concerning the obligation to accept reduced payments.

State v. Ahmed,
2019 UT App 65 (April 25, 2019)

This appeal arose out of the intersection between privilege and the Confrontation Clause.  Provisionally reversing the conviction, the Court of Appeals held that the district court erred in denying the defendant access to a surveillance location, which was not privileged.  Although a trial court may impose reasonable limitations on cross-examination concerning privileged material under the Confrontation Clause, the trial court can may impose those limitations only if the evidence sought by the defendant is privileged.

Ghidotti v. Waldron,
2019 UT App 67 (May 2, 2019)

The plaintiffs sued the sellers and their real estate agent and broker for failing to disclose that property was subject to restrictive covenants that prevented plaintiffs from operating a dog training business.  The plaintiffs did not disclose an expert to support their damages in accordance with Rule 26, but they argued that they implicitly and sufficiently designated one of the plaintiffs as a non-retained expert when they listed her as a potential fact witness in their initial disclosures, when she testified about their damages during a deposition, and when they disclosed the financial documents that she intended to testify about in supplemental disclosures.  The Court of Appeals held that plaintiffs’ “implicit disclosure” argument is contrary to its precedent, and plaintiffs failed to properly disclose the non-retained expert under Rule 26.

Pino v. Entity # 4812420-0140,
2019 UT App 69 (May 2, 2019)

A non-profit water corporation, TWC 2000, failed to renew its registration and was administratively dissolved.  The board of TWC 2000 formed TWC 2013, and caused TWC 2000 to transfer all of its assets to TWC 2013 along with granting all shareholders in TWC 2000 equal shares in TWC 2013.  The Division of Corporations reinstated TWC 2000, after which 95% of the TWC 2000 shareholders ratified the forming of TWC 2013 to act as a successor corporation.  A group of dissenting minority shareholders contended that the assets of TWC 2000 should have been distributed to the shareholders upon dissolution based upon the corporation’s bylaws.  The Court of Appeals affirmed transfer of TWC 2000’s assets to TWC 2013 under the bylaws because, among other reasons, the shareholders of both companies were the same.

State v. Gavette,
2019 UT App 73 (May 2, 2019)

The Court of Appeals vacated the defendant’s conviction and remanded for a new trial in light of the district court’s failure to comply with Utah R. Crim. P. 29 by presiding over the defendant’s trial while a motion to disqualify the judge was pending.  Under the rule, when a motion to disqualify is filed, the district court has two options: grant the motion or certify the motion to a reviewing judge for decision.  The rule explicitly provides, “‘[t]he judge shall take no further action in the case until the motion is decided.’”  “Failure to comply with this rule renders void any further proceedings presided over by that judge.”

State v. Smith,
2019 UT App 75 (May 2, 2019)

This appeal centered on the court’s application of the community caretaking doctrine.  Police officers found the defendant sleeping in his vehicle in a restaurant parking lot in the early morning.  Affirming the denial of a motion to suppress, the court of appeals held that the community caretaking doctrine justified the warrantless seizure, because the officers were checking on the defendant’s welfare on a cold evening, the circumstances suggested that the defendant did not intend to leave, the seizure was brief duration, and it appeared to be motivated by the safety of the defendant and members of the community.  The dissent framed the community caretaking doctrine more narrowly and would have held that the manner in which the seizure was conducted could not be justified by the doctrine.

State v. Brunn,
2019 UT App 77 (May 9, 2019)

As a matter of first impression, the Court of Appeals held that a criminal defendant’s prior settlement agreement with the victim did not preclude a restitution judgment for a greater amount under the Crime Victims Restitution Act, except to the extent that the settlements and judgment would demonstrably result in double recovery.

 

10th Circuit

United States v. Bowline,
917 F.3d 1227 (March 11, 2019)

In this criminal appeal, the Tenth Circuit joined a majority of circuits and held that prior precedent establishing appellate courts cannot review an untimely motion to dismiss under Fed. R. Crim. P. 12 absent a showing of good cause remains good law despite the 2014 amendments to that rule.  The criminal defendant filed his motion to dismiss for vindictive prosecution days before trial was set to start.  On appeal, he acknowledged that he could not establish good cause for the untimeliness, but argued that the court could nevertheless review the district court’s denial under a plain error standard.

United States v. Dalton,
918 F.3d 1117 (10th Cir. March 21, 2019)

In what appears to be a case of first impression, the Tenth Circuit held evidence obtained during a search pursuant to a search warrant was seized in violation of the Fourth Amendment because the warrant had become stale, not due to the passage of time but because of the officer’s subsequent discovery of additional information.  The court held that “probable cause becomes stale when new information received by the police nullifies information critical to the earlier probable cause determination before the warrant is executed.”  Here, the probable cause had become stale because the officers had become aware the defendant was not the driver of the car in which officers had observed a firearm, a fact that had served as the basis for the probable cause he was illegally possessing a firearm in the house.

Sacchi v. IHC Health Servs., Inc.,
918 F.3d 1155 (10th Cir. Mar. 26, 2019)

In this employment case, an intern argued that she should be treated as an employee under federal discrimination laws, even though she received no pay, because she received benefits from the internship program, including completing requirements of education program and advancing her professional certification.  Applying the “threshold remuneration” test used in other circuits, the Tenth Circuit held that the intern was not an employee, where the benefits alleged were not provided by the hospital, were different from traditional benefits, such as a pension or insurance, and were too attenuated to give rise to an employment relationship.

Butler v. Bd. of Cty. Commissioners for San Miguel Cty.,
920 F.3d 651 (10th Cir. Mar. 29, 2019)

A county employee sued his former employer for demoting him after he testified as a character witness at his sister-in-law’s custody hearing.  The plaintiff urged the Tenth Circuit to adopt a per se rule that treated all truthful testimony given by a public employee as a matter of public concern.  Instead, as a matter of first impression, the Tenth Circuit clarified that a case-by-case approach applies to assessing whether a government employee’s speech involves a matter of public concern and affirmed the district court’s dismissal of the individual claims, because the employee’s motive was primarily personal and did not concern the community at large.

Nelson v. City of Albuquerque,
921 F.3d 925 (10th Cir. April 16, 2019)

The defendants filed two motions to alter or amend a civil judgment under Fed. R. Civ. P. 59(e) that were decided by different judges.  After the first judge denied the first motion, he retired and the court reassigned the case to another judge.  The defendants then filed their second motion, reurging or elaborating on what they had argued in their prior motion.  The second judge granted the motion.  The Tenth Circuit reversed, holding that parties cannot invoke Rule 59(e) to reurge or elaborate on arguments already decided in earlier Rule 59(e) proceedings.