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Important Utah Decisions, 2002

EDITOR'S NOTE: Supreme Court Justice Michael J. Wilkins and Court of Appeals Judge Gregory K. Orme addressed some of last year's important Utah appellate decisions at a Salt Lake County Bar Luncheon on February 26, 2003. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers' permission. Especially because readers will not have the benefit of the narrative commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

Selected Cases Decided by the Utah Supreme Court in 2002
by Justice Michael J. Wilkins

Common Law

Riddle v. Perry, 2002 UT 10
A witness in a legislative hearing has a common law privilege to speak unmolested, even if the comments amount to defamatory statements, so long as the testimony given has some relation to the proceedings in which they are made.

Trespass:
Breiggar Properties v. H. E. Davis & Sons, 2002 UT 53
Road debris was dumped on adjoining property. Suit for trespass was dismissed under the three year statute of limitations. The court clarified that "permanent trespass" means that the act of trespass has ceased, and the statute of limitation has begun to run from the date of the last act of trespass. Similarly, "continuing trespass" means that the acts of trespass have not ceased, and that the statute of limitations begins to run anew from each new act of trespass for damages arising from that new act.

Juvenile Court Cases

Search and seizure:
State in the interests of A.C.C., 2002 UT 22
A juvenile court probation order providing for random searches of the juvenile deprived the juvenile of any reasonable expectation of privacy, as a matter of law, and the drug paraphernalia seized was not subject to suppression as the result. The search did not violate the Fourth Amendment, or Article I, Section 14 of the Utah Constitution. The order was a lesser intrusion than secure confinement, which the court could have imposed.

Juvenile Court jurisdiction:
State v. Houskeeper, 2002 UT 118
State v. Tunzi, 2002 UT 119
Once certified to stand trial as an adult, the district court retains jurisdiction for all purposes unless the juvenile is acquitted on the charged offense, and on all related charges arising from the same incident.

State in the interests of W.A., 2002 UT 126
State in the interests of W.A., 2002 UT 127
Termination of parental rights actions involving child legally in Utah, and parents located in two other states. Parents challenge personal jurisdiction. The court affirmed juvenile court's finding of jurisdiction on two basis: 78-3a-110(13) specifically grants the juvenile court jurisdiction over the absent parents; and the status of the child vis-a-vis the parents constitutes an exception to the ordinary requirements of the due process clause of the Fourteenth Amendment.

State v. Schofield, 2002 UT 132
A person over the age of 21, no matter at what age the offense occurred, is subject to the jurisdiction of the district court, and not eligible for the 'exclusive' jurisdiction of the juvenile court. Juvenile court jurisdiction is an aid in reforming juveniles prior to adulthood, not a lesser penalty for adults whose crimes occurred while they were juveniles.

Criminal Cases

State v. Martinez, 2002 UT 80
Nineteen-year-old defendant had sexual intercourse with a fifteen-year-old girl. Defendant sought to introduce evidence that girl had represented herself as seventeen-years-old to address question of intent to have sex with 14 or 15 year old. In affirming the conviction, and the exclusion of the proffered age evidence, the Court held crime of sexual activity with a minor is one of strict liability, and the only intent necessary has to do with the act, not the age of partner.

Victims Rights:
State v. Casey, 2002 UT 29
The child victim of sexual abuse asked the prosecutor to be heard by the court at the defendant's change of plea hearing. The prosecutor failed to inform the court, and the change of plea was accepted without comment from the victim. The victim appealed. The court held that the victim had a right to appeal the denial of opportunity to be heard, that the change of plea hearing qualified under the victims' rights laws as one during which the victim was entitled to be heard, and that the prosecutor had a duty to inform the court of the victim's request.

Discovery of rape victim records:
State v. Blake, 2002 UT 113
Defendant sought juvenile victim's juvenile court records and counseling records seeking evidence of prior reports of rape by the victim. The court held that juvenile court records are governed by statute, and not subject to Rule 16. Counseling records of a rape victim are only available after defendant has satisfied the "reasonable certainty" test of State v. Cardall 1999 UT 51, 982 P.2d 79.

State v. Hansen, 2002 UT 114
Defendant sought trial court in camera review of rape victim's mental health records "to determine if any of them were material to his defense." The trial court directed the prosecutor to review the records and report back, inviting the defendant to raise the issue again if unsatisfied. Defendant failed to raise the issue thereafter, and court held the matter had been waived for purpose of appeal.

State v. Gomez, 2002 UT 120
The absolute privilege accorded communications between a rape victim and the rape crisis center under 78-3c-4 (1996) is constitutional.

Civil Cases

Rule 41(a) dismiss:
First Equity Federal v. Phillips Development, 2002 UT 56
Two voluntary dismissals under Rule 41(a)(1) of a civil action constitute dismissal with prejudice. However, a dismissal resulting from a motion to dismiss that is granted does not trigger the consequences of the rule.

Open Courts:
Laney v. Fairview City, 2002 UT 79
Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) is still good law.

Citizen Initiative:
Gallivan v. Walker, 2002 UT 89
Multi-county signature requirement for placing a citizen initiative on the general election ballot is unconstitutional under both the fundamental rights provision and the Equal Protection Clause.

Appellate Practice

Civility:
"We feel it necessary to comment on the briefs in this case. Appellant's counsel has submitted briefs that are replete with pejorative remarks and epithets regarding opposing counsel, the trial court, [a witness], and indirectly, this court. Statements such as [Appellee's] arguments are 'supercilious,' 'absolutely foolish and asinine,' and 'ridiculous,' that [Appellee] is 'ignorant,' that the trial court 'ignored . . . every opinion every written by this [c]ourt' and 'fail[ed] to read and comprehend the actual language' of the applicable statute, that [the witness] is 'notorious' and a 'charlatan,' and that [the witness's] opinion is 'inarticulate' and an 'absurd legal opinion' are wholly inappropriate in an appellate brief. Statements that small claims judges are not 'real judge[s]' and that this court disregards the truth by prefacing an argument with '[o]n the outside chance that the truth matters' are likewise inappropriate. Such remarks are merely argumentative and repugnant to fundamental and rudimentary notions of civility and decorum expected of attorneys, and as we have stated before, '[d]erogatory references to others . . . ha[ve] no place in an appellate brief and [are] of no assistance to this [c]ourt in attempting to resolve any legitimate issues presented on appeal.'" Prince v. Bear River Mutual Insurance, 2002 UT 68, citations omitted.

Marshaling the facts:
"When challenging a jury's verdict [or findings made by a trial court], a party must 'marshal the evidence in support of the verdict [or finding] and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict [or judgment].' Put differently, a party incurs an obligation to marshal all of the evidence that arguably supports the jury's conclusion. This means that it must marshal 'every scrap' of evidence that supports the jury's finding. It also requires that the party contesting the verdict assume the role of 'devil's advocate.' The party challenging the jury's verdict must therefore temporarily remove its own prejudices and fully embrace 'the adversary's position.'" Harding v. Bell, 2002 UT 108, at Para. 19, citations omitted.

Selected Cases Decided by the Utah Court of Appeals in 2002
by Judge Gregory K. Orme

Civil Cases

Macris & Assocs. v. Neways, Inc., 2002 UT App 406, 60 P.2d 1176.
Common law third-party litigation exception, allowing recovery of attorney fees as consequential damages where defendant's wrongful conduct foreseeably caused plaintiff to incur attorney fees through litigation with third party, may be applied to causes of action that arise under the Uniform Fraudulent Transfer Act, Utah Code Ann. ¤¤ 25-6-1 to -13 (1998 & Supp. 2002).

Dowling v. Bullen, 2002 UT App 372, 58 P.3d 877.
Therapist's affair with former husband did not arise out of "health care" rendered to wife where both husband and wife were in individual therapy with therapist. Thus, the Utah Health Care Malpractice Act's two year statute of limitations did not apply, and wife could bring alienation of affection cause of action under the generally applicable four year statute.

Alvey Dev. Corp. v. Mackelprang, 2002 UT App 220, 51 P.3d 45.
An appurtenant easement is extinguished when, after the division of the dominant tenement, the newly created parcel does not abut the servient tenement. Utah is among the minority of jurisdictions that follow this view.

American Interstate Mortgage Co. v. Edwards, 2002 UT App 16, 41 P.3d 1142.
It is not an abuse of discretion to refuse evidence of a party's attorney fees as a sanction where the party failed to properly supplement discovery requests regarding documents it intended to use in trial. Additionally, the holder of a sheriff's deed to property has an ownership interest in the property, thus giving the holder standing to intervene in a foreclosure action.

Premier Van Schaack Realty, Inc. v. Sieg, 2002 UT App 173, 51 P.3d 24.
It is not a sale or exchange of property where the owner "retains essentially the same ownership interest in the property as he had prior to the conveyance, with plans to develop the property by improving it with the possibility of future gains or losses, and can prevent the record owner from encumbering the property without his permission."

Nunez v. Albo, 2002 UT App 247, 53 P.3d 2, cert. granted, 59 P.3d 603 (Utah 2002).
Medical doctor employed by University of Utah was acting within the scope of his employment when conducting activities of the type he was employed to perform, within the hours and "spatial boundaries" he was assigned, and that served the interests of his employer. Additionally, amending complaint to include the University was proper because notice to governmental entity was sufficient, amendment properly related back to the original complaint, and amendment was not so late in the litigation process as to be prejudicial.

Salt Lake County v. Metro West Ready Mix, Inc., 2002 UT App 257, 53 P.3d 499, cert. granted, 59 P.3d 603 (Utah 2002).
A purchaser of property was found to be a BFP even where the seller had no legal title to the property because the purchaser was legally justified in concluding that the seller was the owner of the property based on the lack of record evidence, the seller's possession of the property, and the County's failure to post signs or carry on any activity that would raise questions about the seller's title to the property.

McKeon v. Crump, 2002 UT App 258, 53 P.3d 494.
Retention of earnest money by a seller constitutes an election to retain the deposit as liquidated damages. Once a seller has elected a remedy, it cannot be waived.

Trench Shoring Services, Inc. v. Saratoga Springs Development, L.L.C., 2002 UT App 300, 57 P.3d 241.
Utah's Payment Bond Statute entitles an equipment lessor to recover rent for equipment supplied to a construction site from a property owner who fails to secure a payment bond, given statutory reference to "equipment supplied." The lessor is entitled to recover the reasonable value of the equipment furnished, up to but not exceeding the contract price. Improvement of the owner's land is not a condition for recovery under the statute.

Bank One Utah, N.A. v. West Jordan City, 2002 UT App 271, 54 P.3d 135.
For purposes of determining when the one-year window for filing a notice of claim against a political subdivision begins, a plaintiff's claim is considered to have "arisen" when both of the following have occurred (1) the plaintiff's interests are harmed and (2) the responsible party's identity is determined.

Criminal Cases

State v. Schultz, 2002 UT App 297, 56 P.3d 974.
The Utah Board of Pardons and Parole has authority to issue restitution orders, but only while the offender is under its jurisdiction. Jurisdiction over an offender is terminated when the offender's sentence and parole are terminated.

State v. Schultz, 2002 UT App 366, 58 P.3d 879.
The admissibility of expert testimony concerning canine accelerant detection as an investigative tool is subject to rule 702 of the Utah Rules of Evidence. But the admissibility of expert testimony concerning canine accelerant detection as substantive proof that an accelerant was used in a fire, without laboratory confirmation, is subject to the heightened standards of State v. Rimmasch, 775 P.2d 388 (Utah 1989).

State v. Collins, 2002 UT App 253, 53 P.3d 953, cert. denied, 2003 Utah Lexis 8.
There is a statutorily implied authorization to conduct a search when taking someone into protective custody due to mental illness pursuant to Utah Code Ann. ¤¤ 62A-12-231 to -232. Such protective custody searches do not violate the Fourth Amendment prohibition against unreasonable searches and seizures.

State v. Hardy, 2002 UT App 244, 54 P.3d 645.
Protective order statute is not overbroad in proscribing all contact, including "innocent contact." State has significant interest in protecting citizens from domestic violence, and statute is narrowly drafted to burden speech no more than is necessary to accomplish this goal.

State v. Pooler, 2002 UT App 299, 56 P.3d 979.
State's evidence of prior convictions for purposes of enhancement are entitled to a presumption of regularity. To rebut that presumption, a defendant must present some evidence that the prior proceedings were irregular.

State v. Mogen, 2002 UT App 235, 52 P.3d 462.
In the course of a routine traffic stop, defendant remained seized within the meaning of the Fourth Amendment when the police officer kept his overhead emergency lights on, returned defendant's license, issued a verbal warning for speeding, turned around and headed toward his patrol vehicle, stopped, returned back to defendant's vehicle, and then asked to search his trunk.

State v. Johnson, 2002 UT App 431, 463 Utah Adv. Rep. 3.
Utah has jurisdiction to prosecute resident fathers for criminal nonsupport of nonresident children

State v. Chavez, 2002 UT App 9, 41 P.3d 1137.
Defendant's Confrontation Clause rights were violated when trial court, based on State's generalized references to safety concerns, denied defense counsel the opportunity to cross examine State's witness about his ongoing relationship as a DEA informant and the fact that he was currently incarcerated awaiting sentencing. Such error was prejudicial because it was likely the witness's testimony heavily influenced the jury.

State v. Comer, 2002 UT App 219, 51 P.3d 55, cert. denied, 59 P.3d 603 (Utah 2002).
Reliable domestic disturbance report, by itself, did not suggest an immediate medical emergency of the degree necessary to trigger the emergency aid exception to the Fourth Amendment's warrant requirement.

Family Law Cases

Garcia v. Garcia, 2002 UT App 381, 60 P.3d 1174.
Former wife's homosexual relationship fit legal definition of cohabitation for purposes of terminating husband's duty to pay alimony.

Elman v. Elman, 2002 UT App 83, 45 P.3d 176.
The trial court did not exceed its discretion in concluding a wife who managed marital properties was entitled to share in appreciation on husband's premarital partnership assets based on the number of years the husband actively managed the partnership assets during the marriage to the exclusion of helping manage the marital estate. The trial court appropriately accounted for appreciation due to inflation by subtracting a reasonable rate of return. The trial court did not exceed its discretion in basing its valuation of marital property upon evidence presented by one spouse where the other spouse failed to present any contrary evidence.

In re D.B., 2002 UT App 314, 57 P.3d 1102.
Before terminating parental rights, a court must find both that the parent is unfit and that it is in the child's best interest to terminate the parent's rights. Although a parent's incarceration alone probably does not justify a finding of unfitness, the additional factors of the child being in DCFS custody and the child being deprived of a normal home for more than one year may justify such a finding.

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