Utah Bar Journal

CIVIL CASES1
Pratt v. Nelson, 2007 UT 41, 164 P.3d 366 (Remanded) MBD*2 When the defendant was 16 years old, her father allegedly forced her to marry her uncle. She subsequently filed suit against plaintiffs and others, alleging that they had ties with a polygamous organization and that they were negligent and had assisted, encouraged, conspired, or knew of and failed to prevent or report, the abuses alleged to have been committed by her father and uncle. Plaintiffs filed suit against defendant, alleging that she had defamed plaintiffs at a press conference and through the resulting publicity. The court held that through excessive publication, the defendant’s statements lost any immunity they might have otherwise enjoyed under the judicial proceeding privilege. The court also held that the group defamation rule did not preclude plaintiffs’ defamation claim.

Carbaugh v. Asbestos Corp. Ltd., 2007 UT 65, 167 P.3d 1063 (Reversed and Remanded) REN* The court held that the “expert testimony” exception to Utah’s medical licensing statutes allowed experts who were licensed to practice medicine in other states but not in Utah to conduct pre-testimony medical evaluations in preparation for their forthcoming testimony as expert witnesses. While the doctor undoubtedly practiced medicine in Utah without a license when he held himself out as a physician, he performed those “practices or acts” as “an individual providing expert testimony in a legal proceeding” and thus did not violate the Act.

Colosimo v. Roman Catholic Bishop, 2007 UT 25, 156 P.3d 806 (Affirmed) JNP* Two brothers alleged that their former teacher, who was also their priest, sexually abused them on repeated occasions from approximately 1970 to 1975. In 2002, they filed suit, alleging that defendants knew that the teacher had sexually abused children but deliberately concealed it from them to protect their own interests. In affirming the dismissal of the brothers’ action, the court held that the students’ action was barred by the one to four years’ statute of limitations provided by Utah Code Ann. § 78-12-25(3), 78-12-26(3), 78-12-29(4) (2002). The discovery rule provided in section -26(3) did not apply because the students knew that they had been abused by the teacher and that the teacher was employed by defendants; this knowledge was sufficient to trigger a duty to inquire into claims against defendants.

Munson v. Chamberlain, 2007 UT 91, 2007 Utah LEXIS 199 (Reversed and Remanded) JNP* Defendants argued that a notice of intent and opinion letter submitted to a pre-litigation panel were transformed into confidential documents by virtue of being presented to the panel. The court held that neither the plain language of Utah Code Ann. § 78-14-12(1)(d) nor the statutory purpose supported the broad interpretation of the confidentiality requirement that the court had recognized in that previous case law. Because the patient had independent access to the notice of intent and the opinion letter, their use in the pretrial proceeding did not render them confidential. The court overruled the last paragraph of Doe v. Maret, 984 P.2d 980 (Utah 1999) because it erroneously suggested that all documents submitted to a pre-litigation panel were confidential.

Rothstein v. Snowbird Corp., 2007 UT 96, 2007 Utah LEXIS 219 (Vacated and Remanded) (J. Wilkins dissenting) REN*, CMD, JNP–concur in REN’s opinion. MJW*, MBD – dissenting An expert skier sustained serious injuries when he collided with a retaining wall while skiing at the resort. The resort claimed that the skier waived his ability to sue the resort for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence. The court concluded that the release and indemnify agreements the skier signed were contrary to the public policy of the State of Utah and were, therefore, unenforceable. The court also held that the core purpose of Utah’s Inherent Risks of Skiing Act, see Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007), was not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned by their negligence.

Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442 (Affirmed in part/Reversed in part) REN* Before being allowed to participate in a ski race, a skier was required to sign a release of liability and indemnity agreement. The court held that the release was enforceable. Assuming that skiercross racing was an abnormally dangerous activity, the skier’s role as a participant in that activity also excluded him from eligibility to recover under a theory of strict liability.

Mountain W. Surgical Ctr. v. Hosp. Corp. Of Utah, 2007 UT 92, 2007 Utah LEXIS 212 (Affirmed) MBD* To block construction of a new medical complex adjacent to the hospital, the hospital filed a lawsuit against the property owner and recorded a notice of lis pendens on the property. The company claimed that by filing the first lawsuit and the lis pendens, the hospital caused the complex to be built in a different location, resulting in increased costs and delays. The court noted that the company offered no testimony other than the affidavit of an employee, that the lis pendens caused them to refuse to proceed with the sale of the property. Instead, the employee’s affidavit was insufficient because: (1) it was not based on the employee’s personal knowledge, as required by Utah R. Evid. 602, and (2) even if a proper foundation for the employee’s statements were assumed, they were factually insufficient to establish causation.

Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99, 2007 Utah LEXIS 222 (Affirmed) JNP* Decedent’s sister sought to recover damages from the Pete Suazo Utah Athletic Commission for negligently allowing her brother to fight in a boxing match, even though his physical condition and boxing record violated certain commission rules. The court held that the commission was immune from suit under Utah Code Ann. § 63-30-1 to -38 (2004), the Utah Governmental Immunity Act, because the actions in question fell within the exception articulated in section 63-30-10(3). Section 63-30-10(3) states that immunity is not waived for “the issuance, denial, suspension, or revocation of or by the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.” Since petitioner’s allegations of negligence were directed to “licensing decisions” for which immunity had not been waived, her claim failed.

Utahns for Better Dental Health-Davis v. Rawlings, 2007 UT 97, 2007 Utah LEXIS 220 (Reversed and Remanded) CMD*, MBD, JNP–concur in CMD’s opinion MJW*, REN–dissenting The court held that de novo review is the appropriate standard of review for attorney fee awards under the private attorney general doctrine. Further, the court held that an award of attorney fees was appropriate in this case because it involved vindication of a strong or societally important public policy concerning the misuse of the constitutionally-based initiative power and the integrity of a public election.

Bilanzich v. Lonetti, 2007 UT 26, 160 P.3d 1041 (Reversed and Remanded) JNP*, MBD, CMD–concur in JNP’s opinion MJW*, REN–dissenting In an action seeking to have a personal guaranty declared unenforceable, petitioner guarantor filed a motion seeking his attorney fees under Utah Code Ann. § 78-27-56.5 (2002). Petitioner argued that the statute allowed an award of attorney fees pursuant to a contract, where a party successfully claimed the same contract was unenforceable due to the failure of a condition precedent. The court held that Utah Code Ann. § 78-27-56.5 granted the district court discretion to award attorney fees and costs to a prevailing party if the writing that formed the basis of the lawsuit provided attorney fees for at least one party. Although the guaranty itself was rendered unenforceable by the failure of a condition precedent, the statute focused on the provisions of the writing rather than its legal effect. Under the statute, it was immaterial that events outside of the writing rendered the guaranty ineffectual because the guaranty allowed at least one party to recover attorney’s fees.

Quaid v. U.S. Healthcare, Inc., 2007 UT 27, 158 P.3d 525 (Reversed and Remanded) JNP*, MJW, MBD–majority REN*–concurring with separate opinion. MJW–joining in REN’s concurrence The adoptive parents appealed summary judgment in their action involving benefit coverage for their newly adopted son. U.S. Healthcare argued that it was not liable for covering the medical expenses of the newly adopted child because he was also covered under his birth parents’ HMO policy provided by the health insurer. The court held that the health insurer’s policy coverage of the son effectively ceased when the parental rights of his birth parents were terminated. Consequently, the benefit plan’s coordination-of-benefits (COB) provision did not operate to deny the son coverage.

Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, 158 P.3d 1088 (Affirmed) MJW* The insured was struck by an automobile as he walked across a parking lot. He later claimed that his damages exceeded the amount obtained from the driver’s insurance company and sought additional coverage under the underinsured motorist provisions of his insurance policy, which was written in the name of the insured’s corporation. Even though the policy excluded coverage because the insured was a pedestrian, he contended that equitable estoppel should extend coverage based on representations made by the insurance agent in selling him the policy. The court noted that in some factual circumstances, principles of equitable estoppel may enlarge the scope of an insurance policy’s coverage where the company’s agent materially misstates the scope of coverage prior to the purchase of the policy.

Grappendorf v. Pleasant Grove City, 2007 UT 84, 2007 Utah LEXIS 187 (Reversed and Remanded) JNP* The court held that atmospheric conditions, such as gusts of wind, heat from the sun, or fog, did not fall under the natural condition exception to the waiver of governmental immunity, see Utah Code Ann. §63-30-10(11) (repealed 2004). Considering the plain language of the statute, the appellate court concluded that a natural condition “on” the land had to be topographical in nature, that is, in physical contact with the land, supported by the surface of the land, or part of the land.

Jones v. Egan, 2007 UT 85, 2007 Utah LEXIS 190 (Reversed and Remanded) JNP* The insured, an eight-year-old, struck the injured party with a hockey stick. The insurer refused to pay. The court determined that the term “accident” in relation to the policy described means which produced effects that were not their natural and probable consequences and that the insured’s age was relevant in this determination because this was judged from the insured’s perspective. Furthermore, the court focused on the resulting injury, rather than the actions of the insured, as being accidental in nature. The test was not whether the result was foreseeable, but whether it was expected.

Bissland v. Bankhead, 2007 UT 86, 171 P.3d 430 (Affirmed) REN* The residents wanted to overturn an ordinance, but the city refused to approve a proposed referendum for placement on the ballot for the November 2007 vote. The city recorder determined that the residents failed to submit their petition within 45 days of the passage of the ordinance. The court held that because the ordinance completed the deliberative process required of the city council on October 24, this was the date of the ordinance’s passage. Furthermore, the court determined that there was no evidence that the city council failed to comply with or circumvented any of the requirements. Thus, passage occurred when three of the five members of the city council voted for the annexation ordinance, not when the law was posted or signed on November 15. Accordingly, the events of the October 24 meeting triggered the forty-five-day time line contained in Utah Code Ann. §20A-7-601(3)(a). Finally, the October 24 meeting imparted adequate notice, and the twenty-one-day span between the November 16 posting and the December 8 deadline was adequate.

Duke v. Graham, 2007 UT 31, 158 P.3d 540 (Affirmed) JNP* Two of the members of an LLC were expelled and one member, who was also a manager, was removed as a manager. The members argued that the arbitrator had exceeded his authority by expelling the members and the manager, pursuant to Utah Code Ann. §§ 48-2c-710(3) and 48-2c-809(1), which provided that only a court could remove members and managers of an LLC. The court concluded that although sections -710(3) and -809(1) provided for judicial removal of members and managers, the legislature did not forbid removal through other means. Accordingly, members and managers could be removed through arbitration.

Tschaggeny v. Milkbank Ins. Co., 2007 UT 37, 163 P.3d 615 (Affirmed) JNP* The parties were unable to agree on the insurer’s obligation to cover certain medical expenses. The insurer’s motion in limine to exclude medical expenses that were written off by the insured’s health insurance policy was granted. The court held that Utah Code Ann. § 78-27-44 (2002) did not require the trial court to award prejudgment interest for the period after the pretrial payment was made. A new trial under Utah R. Civ. P. 59 was denied for the written-off medical bills because there was no legal error at trial. Finally, the supreme court refused to review the denial of a new trial on the issue of replacement services because the insured failed to marshal the evidence.

Wasatch Crest Ins. Co. V. LWP Claims Adm’rs. Corp., 2007 UT 32, 158 P.2d 548 (Affirmed) MJW* In granting the corporation’s motion for summary judgment, the trial court determined that although the corporation was an affiliate of the subsidiary, the liquidator could not recover on behalf of the holding company and its subsidiary for the claims handling services the corporation provided. The court held that although Utah Code Ann. § 31A-27-322 allowed a liquidator to recover “distributions” made to “affiliates that controlled” a liquidating insurer, the corporation was not an affiliate that controlled the holding company or its subsidiary because the corporation did not control either the subsidiary or the holding company as required by Utah Code Ann. § 31A-27-322 (2005), and the payments were fees for services rendered, not distributions within the meaning of the statute. Furthermore, the term “distributions” referred only to dividends or other transfers of equity, not to payments for services.

United States Bank Nat’l Ass’n v. HMA, L.C., 2007 UT 40, 169 P.3d 433 (Affirmed) REN* A company deposited a check and then wrote a check to pay obligations owed to a third party. The bank paid that check. Meanwhile, the maker of the check that the company deposited stopped payment. When the check was returned to the bank, the bank swept remaining funds from the company’s account and subseqently filed suit. At issue on appeal was the company assertion that the bank was prohibited from charging-back the check and placing its account in an overdraft condition because the check’s paying bank failed to timely return it to plaintiff bank. The court held that the paying bank was not prohibited from charging-back the check and was eligible for an extension of the midnight deadline pursuant to 12 C.F.R. § 229, because the paying bank used a “highly expeditious” means of transporting the check. In addition, venue was proper in Salt Lake County pursuant to Utah Code Ann. § 78-13-1 (2001) because the action sought foreclosure on property that was located in Salt Lake County.

Wilcox v. Anchor Wate, Co., 2007 UT 39, 164 P.3d 353 (Affirmed in part/Reversed in part) JNP* The insured received payments from a settlement under an insurance policy, and various reinsurers indemnified the insurer for the payments. After the liquidator placed the insurer into involuntary liquidation, the insured received partial payment of its claim. The court held that the payments constituted a voidable preference because the insured had no direct claim to the reinsurance proceeds or any cause of action against the reinsurers. Also, the earmark doctrine was inapplicable because the transfer of funds diminished the insurer’s estate and the insurer had the right to disburse the funds to whomever it wished.

Sill v. Hart, 2007 UT 45, 162 P.3d 1099 (Reversed and Remanded) CMD* The parties contracted regarding the construction of a residence, and the owner subsequently filed a breach of contract claim. The contractor responded with a counterclaim, which included a request to foreclose on a mechanics’ lien. The court held that Utah Code Ann. § 38-1-11(4)(a) (2001) was not triggered when the contractor sought to enforce a lien by filing a counterclaim, rather than an initial complaint. Further, since the owner had no rights available under the Utah Residence Lien Restriction and Lien Recovery Fund Act, see Utah Code Ann. §§ 38-11-101 to -302 (amended 2005 & Supp. 2006), compliance with the notice requirements of section -11(4)(a) was not required.

Elder v. Nephi City, 2007 UT 46, 164 P.3d 1238 (Affirmed) REN* A widow’s husband was killed when the truck he was driving was hit by a freight train. The widow asserted that her husband’s line of vision was obscured by a line of trees located parallel to the tracks, and the he would not have died if they had not been there. The trees were located on land owned by the city, and the railroad had no recorded property interest in that land. Instead, the railroad only owned the tracks and operated the train. The court held that the ground over which the railroad’s tracks passed had already been granted to the city at the time the tracks were laid; thus, the property was not subject to transfer under the Railroad Rights of Way Acts, ch. 152, 18 Stat. 482. Further, the court would not permit the widow to claim a prescriptive easement on the railroad’s behalf so that she could hold the railroad liable for her husband’s death.

Crestwood Cove v. Turner, 2007 UT 48, 164 P.3d 1247 (Affirmed) JNP* The client’s property was sold at a sheriff’s sale to satisfy a judgment. When the client was given notice to quit the property, it retained an attorney to handle the case. The client entered into a settlement agreement to retake the property, but then it filed a legal malpractice case. The court held that the client had not abandoned the right to pursue its malpractice action when it settled the redemption lawsuit before the appeal was completed. The court also declined to adopt a categorical rule foreclosing malpractice suits arising from cases where a party settled instead of pursuing an appeal.

Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, 167 P.3d 1011 (Affirmed) MBD*, MJW, REN–majority CMD*, JNP–dissenting As the result of a car accident in which he was involved, the injured party was disabled and left unable to perform the types of jobs that he held before the accident. The other driver’s policy had a limit of $25,000 for bodily injuries. The driver’s wife contended that an additional $25,000 of coverage should have been available to cover her loss of consortium claim. The court determined that the mandatory liability coverage obligation in Utah Code Ann. § 31A-22-304 was tied to the number of persons who sustained a bodily injury or died in an accident involving a motor vehicle, not the number of claims that arose from that accident. Because the wife’s loss of consortium claim under Utah Code Ann. § 30-2-11 (2005) arose from the injury suffered by her husband and did not involve a bodily injury to her, her claim was subject to a single $25,000 limit and did not have its own $25,000 limit over and above that covering her husband’s claim.

Bluffdale Mountain Homes, L.L.C. v. Bluffdale Cityz, 2007 UT 57, 167 P.3d 1016 (Affirmed) MBD* The city refused to disconnect certain property. Two property owners then filed a petition seeking disconnection in the district court under Utah Code Ann. § 10-2-502.5 (2003). The court noted that the disconnection was viable and that the city failed to marshal the evidence on the issue of whether the disconnection materially increased the cost of providing municipal services. Also, the disconnection did not make it unfeasible for the city to function as a municipality. As to the justice and equity requirement under Utah Code Ann. § 10-2-502.7(3)(b), substantial deference was the standard of review, but not so much that a decision was reversed only if it was clearly erroneous.

O’Connor v. Burningham, 2007 UT 58, 165 P.3d 1214 (Reversed and Remanded) REN* After being fired from his position as the high school basketball coach, he sued the parents for defamation. The court held that the coach was not a public official because high school athletics could claim no “apparent importance,” as the policies and actions of the coach of any high school athletic team did not affect in any material way the civic affairs of a community. Therefore, he was not required to show that the parents made their statements with actual malice.

Nicholas v. A.G., 2007 UT 62, 168 P.3d 809 (Affirmed) REN*, MBD, JNP–majority MJW*, Judge Russell Bench (for CMD)–dissenting The court concluded that the self-care provision of the FMLA under 29 U.S.C.S. § 2612 (a)(1)(D) was unconstitutional and an invalid attempt to abrogate states’ Eleventh Amendment immunity. Congress’ stated purpose in passing the self-care provision of the FMLA was to protect the disabled against discrimination. Because the provision was not clearly directed at remedying past gender discrimination, the U.S. Supreme Court’s decision in Nev. Dep’t of Human Res. v. Hibbs did not apply. In addition, Congress failed to establish the requisite history of state discrimination against the disabled necessary to pass prophylactic legislation intended to curb such discrimination. Accordingly, the provision could not rest on § 5 of the Fourteenth Amendment and was therefore invalid.

Snow v. Office of Leg. Research & General Counsel, 2007 UT 63, 2007 Utah LEXIS 147 (Challenge rejected and Petition for Extraordinary Writ) MJW* Citizens argued that a ballot title was patently false because it gave no clear indication of whether the referendum vote on House Bill (HB) 148 would prevent the implementation of a voucher program under HB 174. Because the court found no patent falsity or clear bias in the ballot title presented by the Office of Legislative Research and General Counsel, it stated that it need not strain to reach an accommodation between the clear restrictions of Utah Code Ann. § 20A-7-308 and the desire of the parties that the court exceed those restrictions. The court determined that HB 174 was intended by the legislature to amend HB 148, not supplant it. Nothing in the ballot title was substantively false; nothing in the title suggested bias; and nothing need be added to reflect the impact of HB 174.

Egbert v. Nissan N. Am., Inc., 2007 UT 64, 167 P.3d 1058 (Certified questions of law answered) MBD* The parents were involved in a car accident and the mother, who was pregnant, went through the windshield and sustained serious injuries; as a result, the child was born with a brain injury. The parents argued that the child’s brain injury was proximately caused by the accident, and they filed a products liability action in federal court based on the failure to use laminated glass in the windshield. The federal court certified two questions to the court. The court determined that the jury should have been instructed as to the presumption established by Utah Code Ann. § 78-15-6(3)(2002) and that the jury should have also been instructed that a preponderance of the evidence was sufficient to rebut this presumption. The fact that this same burden was already imposed by common law did not mean that the Utah Legislature intended to impose a higher burden when it enacted section -6(3). The statute was not rendered a nullity because the presumption highlighted the significance of compliance with federal standards. Finally, the supreme court noted that Utah recognized the “enhanced injury” theory of liability.

Tabor v. Metal Ware Corp., 2007 UT 71, 168 P.3d 814 (Certified question of law was answered) CMD* The court determined that the general rule of successor liability, together with the four exceptions provided by the Restatement (Third) of Torts § 12, afforded adequate protection to consumers, and it declined to expand the exceptions. Utah did impose an independent post-sale duty on successor corporations to warn customers of defects in products manufactured and sold by the predecessor corporation as outlined in the Restatement (Third) of Torts § 13. The federal court had to apply the duty to warn standard outlined in § 13. If a successor corporation had a duty to warn under § 13, one factor in determining whether a successor corporation had discharged its duty to warn was whether it provided warning to the end user, not just an intermediary like a distributor or retailer.

Emergency Physicians Integrated Care v. Salt Lake County, 2007 UT 72, 167 P.3d 1080 (Reversed and Remanded) JNP* The court concluded that Utah Code Ann. § 17-50-319 (2005) rendered the county liable for the cost of inmates’ medical care. Medical care was logically included in subsection (c)’s broad requirement that the county pay the expenses “necessarily incurred in the support” of pretrial or convicted inmates.

Fordham v. Oldroyd, 2007 UT 74, 171 P.3d 411 (Affirmed) REN*, CMD, JNP, MBD–majority MJW*–concurring and dissenting In concluding that the driver owed no duty to the state trooper who he hit with his car, the court inquired into whether the injury was derived from the negligence that occasioned the professional rescuer’s response, and whether the injury was within the scope of those risks inherent in the professional rescuer’s duties. The court determined that where it was beyond dispute that the trooper’s presence at the accident scene satisfied both inquiries, the driver owed the trooper no duty of care.

Ellis v. Estate of Steven Ellis, 2007 UT 77, 169 P.3d 441 (Affirmed in part/Reversed in part) MBD* The court held that interspousal immunity had been abrogated in Utah with respect to all claims, including claims for negligence. The court also concluded that the statute of limitations on the wife’s claim was tolled by Utah Code Ann. § 78-12-36, which tolled the statute if a person was “mentally incompetent,” which the wife demonstrated she was.

Hoggan v. Hoggan, 2007 UT 78, 169 P.3d 750 (Affirmed) JNP* The brother argued that a 2002 trust amendment was invalid. The court held that the decedent retained the right to amend the trust amendment where she had reserved the right to amend, modify, or revoke the trust. She could not amend the trust to completely divest one of the beneficiaries of his or her interest without first revoking the trust. The court found that because the brother’s interest in the trust was not completely divested but only modified, the amendment did not violate the terms of the trust and was therefore not valid.

Ivers v. Utah Dept. of Transp., 2007 UT 19, 154 P.3d 802 (Affirmed in part/Reversed in part) MJW* UDOT condemned a portion of private property for the construction of a frontage road adjacent to a highway. The construction of the frontage road was part of a larger project to widen and elevate the highway. The State condemned a portion of a restaurant’s lot. UDOT agreed to pay the restaurant for the condemned property. The court held that property owners have no protectable property interest in visibility and therefore, the restaurant was not entitled to damages for loss of view or visibility because the raised highway was not built on condemned land, unless the use of the condemned land was essential to the construction of the raised highway.

Wintergreen Group, L.C. v. Utah Dep’t of Transp., 2007 UT 75, 171 P.3d 418 REN* The court determined that the district court erred in granting UDOT’s motion to dismiss because the dismissal was premature. The property owner sufficiently alleged six claims for inverse condemnation. The court held that the district court erred when it dismissed the claims based solely on the fact that UDOT had already filed direct condemnation actions, which had been consolidated to more accurately account for severance damages.

Swenson v. Erickson, 2007 UT 76, 171 P.3d 423 (Affirmed) REN* The landowners argued that the time for an effective vote to terminate the restrictive covenants was limited to the sixty seconds after the beginning of 2004 but before the automatic extension of the covenants at 12:01 a.m. The court found that hyper-attentiveness to automatic renewal and voting eligibility rendered the covenants impossible to modify and therefore offended the clear intentions of the parties to the covenants. The court indicated in the first appeal that it assumed that the property owners could modify or terminate the covenants on January 1, 2004. The property owners had twenty-four hours available to them every ten years to conduct the business associated with modifying or terminating the covenants.

Massey v. Griffiths, 2007 UT 10, 152 P.3d 312 (Affirmed) CMD* At all times, defendants or their predecessors occupied the land up to a fence that separated two properties for at least twenty years before plaintiffs filed their complaint. In addition, defendants or their predecessors timely paid and discharged all real property taxes that were levied upon their properties. The legal description of the property conveyed by the tax deeds purportedly straddled the fence line establishing the boundary between two properties. On appeal, the court held that defendants successfully rebutted the presumption of Utah Code Ann. section 59-2-1351.1(9)(b) (2004) that plaintiffs’ tax deeds were valid. Once defendants rebutted the presumption, plaintiffs failed to produce evidence that the tax sales were valid by showing that there was a tax delinquency on the property they claimed under the tax deeds.

Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, 156 P.3d 782 (District Court’s Supplemental Order Vacated) REN* Brigham Young University developed a software product, and then entered into a series of licensing agreements with the judgment debtor. The judgment debtor was later dissolved and its stock was acquired by a word processing corporation. The consulting firm signed an indemnification agreement with the judgment debtor. In an earlier opinion, the court held that the university could not summarily extend liability to the consulting firm for the judgment. In this case, the court held that the university could not pursue the associates for the debt of the judgment debtor using only post-judgment collection procedures. Those procedures did not afford the associates a constitutionally permissible degree of due process of law.

Duncan v. Fourth Judicial Dist. Court, 2007 UT 18 REN* In conjunction with the Tremco case above, the court granted consolidated petitions brought under Utah R. Civil P. 65B, vacating a supplemental order and ordering the cessation of collection activities by BYU against the Petitioners.

Glew v. Ohio Sav. Bank, 2007 UT 56, 2007 Utah LEXIS 135 (Affirmed) REN* The debtors acquired a bridge loan from a lender, who also provided the financing for a mortgage on their new home in the form of a 30-year note. At the closing, the lender executed, in favor of the bank, assignments of the trust deeds that secured the bridge loan and the 30-year note. Despite receiving payment from the bank for the bridge loan, the lender did not forward the bank the final payment of the loan. The bank commenced a non-judicial foreclosure of the trust deed on the bridge loan against the debtors’ former home. The new owners of the home demanded that the bank release the trust deed. The bank refused, and plaintiffs sued. The court held that in the area of equitable estoppel and apparent authority, it did not matter whether the bank expressly instructed the debtors to pay the lender or whether it merely insisted on multiple occasions that payment not be directed to it and that the debtors should contact the originating lender for more information; the debtors reasonably relied on the bank’s communications.

CRIMINAL CASES
State v. Barzee, 2007 UT 95, 2007 Utah LEXIS 218 (Affirmed) CMD* with REN concurring in entire result MBD*–writing for majority, with JNP and MJW joining him MJW–concurring with majority, but writing separate opinion Defendant was charged with six felony offenses, each potentially punishable by life sentences, and one second degree felony, punishable by up to 15 years in prison. Thus, she was charged with serious crimes creating an important State interest in timely prosecution that was not undermined by her confinement in the state hospital. Experts in the case found that treatment with antipsychotic medication was appropriate. Although certain side effects were possible, the administration of such medication was unlikely to produce side effects that would interfere with her right to a fair trial and less intrusive means of treatment were unlikely to accomplish the restoration to competency. The court held that finding that the administration of antipsychotic medication was substantially likely to render defendant competent to stand trial was not clearly erroneous; the testimony of the defense experts was not ignored; the State’s experts did not disregard defendant’s particular case; and the district court’s decision was well-reasoned and supported by the record.

State ex rel Z.C., 2007 UT 54, 165 P.3d 1206 (Reversed and Remanded) JNP*, CMD, MBD, REN–majority MJW–concurring in result only Two children under age 14 engaged in consensual intercourse and delinquency petitions were subsequently filed for sexual abuse of a child under Utah Code Ann. § 76-5-404.1 (2003). The court held that although the plain language of section 76-5-404.1 allowed the child to be adjudicated delinquent for child sex abuse, applying the statute to treat her as both a victim and a perpetrator of child sex abuse for the same act lead to an absurd result not intended by the legislature. Like all sexual assault crimes, section 76-5-404.1 presupposed a perpetrator and a victim; thus, the court’s holding was narrowly confined to apply to situations where no true victim or perpetrator could be identified.

State v. Gallegos, 2007 UT 81, 171 P.3d 426 (Reversed) CMD* Both defendants were bound over by a magistrate on charges of child endangerment, which arose from their alleged exposure of children to drugs. They sought review of those decisions. The court reversed, holding that the “exposed to” language of Utah Code Ann. § 76-5-112.5(1)(2003) required a real, physical risk of harm to a child. The child had to have the reasonable capacity to access the substance or paraphernalia or to be subject to its harmful effects, such as by inhalation. The exposure had to go beyond visual or auditory exposure because the child must have had a reasonable capacity to access the substance in order for real harm to exist. To the extent that State v. Nieberger, 2006 UT App 4, 128 P.3d 1223 held differently, it was overruled.

State v. Williams, 2007 UT 98, 2007 Utah LEXIS 221 (Reversed and Remanded) REN* The court considered and clarified the scope of the Shondel doctrine, see State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (Utah 1969), and concluded that the court of appeals erred in applying the doctrine in defendant’s case. As evidenced by the intention of the legislature, Utah’s felony possession statute and misdemeanor possession of paraphernalia statute do not sufficiently overlap to trigger the protections afforded by the Shondel doctrine. The statutes were obviously intended to be fully and separately enforceable.

State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (Reversed) REN* A blood sample was taken from defendant while she was being treated at the hospital, which revealed that she had a blood-alcohol level of nearly five times the legal limit. The court held that the totality of the circumstances justified the extraction of blood from defendant without a warrant, and therefore the court of appeals’ decision was reversed. The evidence supported the conclusion that probable cause existed to believe that defendant was intoxicated at the time of the accident was overwhelming: (1) a vodka bottle was found in defendant’s vehicle; (2) the officer noted that defendant had slurred speech, bloodshot eyes, and smelled of alcohol when he encountered her in the hospital; (3) the likelihood that the blood draw would detect alcohol was great; and (4) the passenger was expected to die of her injuries. The court declined, however, to grant per se exigent circumstances status to warrantless seizures of blood evidence.

Lafferty v. State, 2007 UT 73, 2007 Utah LEXIS 176 (Affirmed) JNP* The inmate was convicted for the slitting the throats of the two victims, his sister-in-law and her 15-month-old daughter. The inmate later appealed on several grounds. The court held that trial counsel was not ineffective for failing to request that the jury be sequestered because the inmate offered no support for his proposition that reasonable counsel “surely” would have moved to sequester the jury in such a high profile case. The fact that an initially sympathetic juror was excused did not establish prejudice. Furthermore, the court rejected the inmate’s claim that trial counsel was ineffective for failing to conduct an adequate mitigation investigation because the inmate presented no proof of evidence tampering or undiscovered exculpatory evidence that would have resulted from a more extensive mitigation investigation. Finally, the court held that trial counsel was not ineffective for failing to object to the prosecutor’s statement that punishment for the murder of a 15-month-old baby should be greater than that for murdering an adult.

State v. Eyre, 2007 UT 94, 2007 Utah LEXIS 213 (Reversed and Remanded) MBD*, CMD, JNP, REN–majority MJW*–dissenting The court held that to prevail on a felony tax evasion claim, the State needed to show that a tax was, in fact, due and owing; merely establishing income did not suffice. The existence of a tax deficiency was an element of felony tax evasion under Utah Code Ann. § 76-8-1101(1)(d)(I) (2003 & Supp. 2007). Furthermore, defense counsel was ineffective for failing to object to the absence of a jury instruction identifying a tax deficiency as an element of tax evasion, and the defendant was prejudiced because his defense at trial was that he failed to file his tax returns, not because he was trying to evade a tax but rather because he did not believe he had any tax due and owing. Reversed and remanded for new trial.

State ex rel K.M., 2007 UT 93, 2007 Utah LEXIS 214 (Reversed and Remanded) REN*, CMD, MBD, JNP–majority MJW*–concurring in the result with opinion The petitioner, a juvenile, gave birth to a child and then placed him in her window well. The juvenile court subsequently accepted an admission by petitioner to child abuse homicide. The court held that Utah R. Juv. P. 25, upon which the juvenile court relied in accepting petitioner’s admission, failed to afford due process of law to juveniles because it did not mandate that the juveniles understood the nature and elements of the offense to which they were admitting. The inadequate communication of the nature and elements of the offense, which Rule 25 permitted, led the juvenile court to accept a plea that was at odds with the contents of petitioner’s admission – she never admitted that the baby was born alive – and was therefore not entered into knowingly. Because the juvenile court did not take steps to ensure an understanding of the nature and elements of the offense and because petitioner did not obtain such an understanding, her admission was not knowing and voluntary.

State v. Haltom, 2007 UT 22, 156 P.3d 792 (Affirmed) REN* Defendant was convicted of distributing material harmful to a minor when he sold an adult video to an underage customer without using “reasonable care in ascertaining the proper age of [the] minor.” Utah Code Ann. § 76-10-1206 (2000). The court held that Utah Code Ann. § 76-2-101 allowed the Legislature to specify a mental state that was different from the most commonly used ones like knowing, reckless, or criminal negligence. The Legislature exercised this power legitimately when it inserted the “reasonable care” standard into the text of Utah Code Ann. § 76-10-1206. The domain of ordinary negligence was not limited to civil actions.

State v. Duran, 2007 UT 23, 156 P.3d 795 (Affirmed) REN*, CMD, MBD, JNP–majority MJW*–dissenting Police were called to a complaint that people were smoking marijuana in a trailer. As the officers approached, they were able to detect a faint smell of marijuana. The officers entered without obtaining a warrant because they determined that the evidence was being destroyed since it was being smoked. The court held that the detectable odor of burning marijuana was inadequate, standing alone, to support a reasonable belief that the destruction of evidence was sufficiently certain as to justify a warrantless entry. The aroma of burning marijuana had to be accompanied by some evidence of destruction, as opposed to just casual consumption.

State v. Santana-Ruiz, 2007 UT 34, 2007 Utah LEXIS 70 (Affirmed) REN* Defendant and the victim were quarreling at a party, and the argument resulted in an exchange of blows. Defendant stabbed the victim multiple times, killing him. At trial, defendant’s attorney attempted to argue that defendant was legally justified in using deadly force against the victim because he was acting in self-defense. Counsel engaged in misconduct by, inter alia, referencing the victim’s excluded toxicology report, referring to nonexistent threats of violence, and attempting to tear a piece of evidence during closing argument. The supreme court determined that defendant did not receive ineffective assistance of counsel under the Sixth Amendment because counsel’s actions did not prejudice defendant. Counsel’s misconduct (1) was offset by the overwhelming nature of the quality and quantity of evidence presented against defendant, (2) was diminished in its effect because the trial court took great care not to censure counsel before the jury, (3) did not make the State’s evidence stronger, but rather improperly bolstered the defense, and (4) did not evoke a reaction from the trial judge that impaired his impartiality.

State v. Reber, 2007 UT 36, 171 P.3d 406 (Reversed and Remanded) MJW* Defendant’s son shot and killed a deer and Defendant was convicted of aiding and assisting in the wanton destruction of protected wildlife. The court concluded that defendants were non-Indians who committed victimless crimes within Indian country but not on Indian land and that, therefore, the State had jurisdiction over defendants. Although defendants’ crimes took place in Indian country, the land on which those crimes took place was not owned by any Indian or Indian tribe. Because the Ute Tribe neither had, nor claimed, authority to regulate hunting on the land within Indian country at issue in the case, and because the Tribe had no protected property interest in wildlife, the Tribe was not a victim. Defendants failed to establish that they were Indians. Although defendants claimed to be members of the Uintah Tribe, under federal law, the Uintah Tribe did not have a separate existence apart from the Ute Tribe.

State v. Worwood, 2007 UT 47, 164 P.3d 397 (Reversed) JNP*, CMD, MBD, REN–majority MJW*–dissenting An off-duty highway patrolman stopped defendant’s vehicle on suspicion that he was driving under the influence of alcohol. The patrolman detained defendant in the patrolman’s truck, drove defendant to the patrolman’s home, and conducted field sobriety tests. When defendant failed the tests, the officer arrested him. Although the patrolman’s initial stop of defendant was justified under reasonable suspicion, the subsequent detention was needlessly extended when defendant was confined in the truck. Accordingly, the court held that under the Fourth Amendment, the scope of the patrolman’s detention exceeded the bounds of a constitutional investigative stop. Because the field sobriety tests were discovered because of the unconstitutional detention, the test results had to be suppressed.

State v. Tiedeman, 2007 UT 49, 162 P.3d 1106 (Affirmed) CMD* MBD*, JNP, REN–writing separately and concurring, but joining all other parts of CMD’s opinion MJW*–dissenting Defendant was charged with three counts of murder. The court held that during his interrogation, the officers did not use coercive tactics to gain defendant’s Miranda waiver and although he was admittedly intoxicated at the time and was later found to be incompetent to stand trial, his mental state alone, absent some abuse by the officers, was not enough to render his waiver invalid. Defendant’s reinvocation of his right to remain silent was ambiguous and the officers were entitled to seek clarification; however, as to the topic about which defendant made it clear that he wanted to remain silent, any statements made in response to questions about that topic were suppressed.

State v. Greuber, 2007 UT 50, 165 P.3d 1185 (Affirmed) CMD* The court held that defendant was not prejudiced by his counsel’s failure to investigate certain evidence that might have militated in favor of accepting a plea bargain. Furthermore, defendant suffered no prejudice because he received a fair trial and the trial court did not clearly err in finding that he would not have accepted a plea to murder even if the evidence had been fully investigated. The court found that defendant was aware of the facts that counsel failed to uncover and that his attorneys testified that they did not believe that he would have accepted a plea because he expressed that he did not want to plead guilty to murder and dropping the kidnapping charge would have had only a nominal impact on his sentence.

Benevenuto v. State, 2007 UT 53, 165 P.3d 1195 (Affirmed) MBD* An inmate, a Uruguayan citizen, shot two people, killing one. While in police custody, he confessed to the crimes, but at no point did he inform authorities that he was Uruguayan because he believed he was a U.S. citizen. He was later sentenced to life in prison without parole. In 2002, he learned he was not a U.S. citizen and sought post-conviction relief, which was denied. On appeal, the court held that the inmate’s post-conviction request was procedurally barred under the Post-Conviction Remedies Act, Utah Code Ann. §§ 78-35a-101 to -304 (2002 & Supp. 2006). Furthermore, the inmate’s trial, post-plea, and appellate counsel were not ineffective under the Sixth Amendment because a reasonable capital defense attorney would not have investigated the inmate’s citizenship status, absent the slightest indication that he might not have been a U.S. citizen. Further, the inmate failed to show prejudice, i.e., that, but-for not being notified he could exercise his rights under the Convention, he would have not pleaded guilty.

State v. Austin, 2007 IT 55, 165 P.3d 1191 (Affirmed) CMD* The court determined that the jury instruction given at defendants’ trials, read as a whole, properly conveyed the concept of reasonable doubt. There was not a reasonable likelihood that the jury understood the instruction to allow conviction based on proof below beyond a reasonable doubt. Although the court did not think the terms “eliminate” and “obviate” were advisable, their use within an instruction that, taken as a whole, properly communicated the concept of reasonable doubt did not create a constitutional error.

State v. Gardner, 2007 UT 70. 167 P.3d 1074 (Affirmed) REN* Defendant claimed entrapment relating to his conviction for participating in a scheme to smuggle drugs into a prison where he was an inmate. A portion of an informant’s cross-examination was missing from the record on appeal. The court of appeals conducted a sufficiency review of the case, despite the fact that some of the record was missing, and did not refer to a reconstructed record under Utah R. App. P. 11(h). After his conviction was affirmed, defendant filed another appeal. The court affirmed and held that the court of appeals did not err in reviewing the case for sufficiency of the evidence without reference to the reconstructed record because the missing evidence was, at best, contradictory impeachment evidence, rather than substantive evidence.

State v. Alinas, 2007 UT 83, 171 P.3d 1046 (Affirmed) MJW* Defendant was convicted of seven counts of Sexual Exploitation of a Minor after he downloaded child pornography on a public computer at the University of Utah Marriott Library. Defendant appealed on several grounds. The court held that the jury instructions were proper in that they only allowed conviction upon a finding that the pornographic pictures contained actual, and not virtual, children. The court also concluded that the images possessed by defendant were clearly of real children, far below the age of majority, and that the pictures were being distributed for the purpose of sexual arousal. Furthermore, the court held that the definition of “sexually explicit conduct” contained in the jury instructions was not erroneous. Additionally, the court held that the prosecution properly limited the scope within which the jury was to consider the adult exhibits; that they were only there to show defendant’s sexual attraction to women, contrary to his testimony. Finally, the court held that enlarging the exhibits, while prejudicial, was helpful to the jury in determining whether the subjects were real and were they minors.

State v. Ross, 2007 UT 89, 2007 Utah LEXIS 193 (Affirmed in part/Vacated in part) CMD*, MBD, JNP–concurring in CMD’s opinion REN*, MJW–concurring in REN’s opinion Defendant was convicted for shooting and killing his ex-girlfriend and shooting and injuring her boyfriend. The court held that when the jury convicted defendant of aggravated murder, the attempted murder of the boyfriend, a necessary element to prove the aggravated murder, merged with the capital felony. Therefore, defendant could only be convicted of aggravated murder, and his conviction of attempted aggravated murder was vacated. The court held that Utah Code Ann. § 76-5-202(1)(b) (2003) was not unconstitutionally vague as applied to defendant because its language was sufficiently clear to give defendant notice that the behavior engaged in was prohibited.

Bluemel v. State, 2007 UT 90, 2007 Utah LEXIS 194 (Reversed and Remanded) MBD* Petitioner pleaded guilty to supplying alcohol to a minor and three counts of rape. Two years after sentencing, petitioner filed an untimely petition for post-conviction relief, claiming that the conviction obtained by the guilty pleas was unlawfully induced because she was taking a number of medications. The court held that error in the Utah R. Crim. P. 11 colloquy during the plea proceeding did not cause the petition for post-conviction relief to fall within the interests of justice exception to the one-year statute of limitations because the failure to strictly comply with Rule 11 was not sufficient to prove that a guilty plea was unconstitutional.

State v. Hales, 2007 UT 14, 152 P.3d 321 (Defendant’s conviction vacated and new trial ordered) MBD* Defendant was convicted for shaking the victim, a five-month-old infant, causing him severe brain injuries. Defendant was charged 14 years later, two years after the victim died. On appeal, the court held that defendant’s trial attorneys provided ineffective assistance of counsel in failing to retain a qualified expert to examine CT scans of the victim’s brain injuries and that failure was prejudicial; therefore defendant was entitled to a new trial. The expert the attorneys called, a forensic pathologist, who was not qualified to testify regarding the CT scans as he admitted that he did not read CT scans in his work. The expert defendant subsequently found opined that the CT scan showed a change in cell structure that took time to develop; if believed by a jury, this evidence would establish that the victim’s injury occurred before he was in defendant’s care and may have happened while he was in his mother’s care.

State v. Ferguson, 2007 UT 1, 169 P.3d 423 (Affirmed) JNP* A previously uncounseled conviction imposing a suspended sentence could not have been used to enhance a subsequent criminal charge unless defendant had knowingly and intelligently waived his right to counsel. The previous conviction was presumed valid unless defendant was able to rebut it by offering evidence that he did not validly waive the right to counsel.

State v. Norris, 2007 UT 6, 152 P.3d 293 (Affirmed) MJW* The court held that the Communications Fraud statute, Utah Code Ann. § 76-10-1801 (2003), was neither overbroad nor vague. In order to be actionable, the statute required that the communication be made intentionally, knowingly, or with reckless disregard. Further, the statute required that the communication be made in connection with and for the purpose of executing or concealing a scheme or artifice to defraud another, a type of speech not protected by the First Amendment. The court held that not all false speech was criminalized, only speech both knowingly false and part of a scheme to defraud.

State v. Mattinson, 2007 UT 7, 152 P.3d 300 (Reversed and Remanded) MJW* The court found that defendant’s knowingly false or fraudulent statements “for the purpose of executing or concealing” a scheme to defraud another did not enjoy any constitutional protection. Therefore, the Communications Fraud statute was not unconstitutionally overbroad. The court held, however, that Utah Code Ann § 76-10-1081(1)(e) was impermissibly vague so as to leave an individual without knowledge of the nature of the activity that was prohibited, and was therefore unconstitutional. The court found problematic the language “other than the obtaining of something of monetary value” in that it was unable to determine what activities or conduct this language was intended to encompass.

Grimmet v. State, 2007 UT 11, 152 P.3d 306 (Affirmed) JNP* The Johnson nunc pro tunc resentencing remedy, which was no longer available to criminal defendants, did not permit the inmate to file a motion to withdraw a guilty plea after the jurisdictional deadline established by Utah Code Ann. § 77-13-6(2)(b) (2003). Because the inmate’s motion to withdraw was untimely under section 77-13-6(2)(b), the court lacked jurisdiction to consider his challenge to the validity of his guilty pleas.

Taylor v. State, 2007 UT 12, 156 P.3d 739 (Affirmed) CMD* Death row inmate appealed the grant of summary judgment to the State on the inmate’s petition for post-conviction relief from his guilty pleas to two counts of criminal homicide. The inmate argued, inter alia, that trial counsel was ineffective for failing to conduct an adequate mitigation investigation. Although the court agreed that trial counsel was ineffective, the error was harmless given the horrendous circumstances of the crime. It was not likely that the jury would have concluded that the mitigating circumstances outweighed the aggravating circumstances.

State v. Spillers, 2007 UT 13, 152 P.3d 315 (Affirmed) CMD* The defendant shot a victim and later argued that he was entitled to have the jury instructed on imperfect legal justification manslaughter. The court held that there was evidence from which a jury reasonably could conclude that defendant was under the influence of extreme emotional distress at the time of the shooting. This evidence included defendant’s testimony that he felt nervous and that a blow to his head left him feeling cloudy, dazed, uncomfortable, and scared. Based on the evidence, a jury could choose to believe defendant’s version of events and conclude that he was experiencing extreme emotional distress at the time of the shooting for which there was a reasonable explanation or excuse. The failure to instruct on the lesser included offense presumptively affected the outcome of the trial and undermined the court’s confidence in the verdict.

State v. Beck, 2007 UT 60, 165 P.3d 1225 (Affirmed) MJW* Defendant was convicted by a jury on three counts of forcible sexual abuse and other lesser charges. The court held that in questioning the defendant about weak points in her testimony in front of the jury exceeded the range of discretion permitted by the rules of evidence and case law. Accordingly, the court held that the trial court committed obvious error by engaging in extensive questioning of defendant before the jury that cast doubt upon defendant’s credibility and compromised the judge’s role as an impartial, neutral official.

State v. Rhinehart, 2007 UT 61, 167 P.3d 1046 (Affirmed) REN* Defendant argued that the ineffectiveness of her trial counsel caused her to enter her plea and to fail to bring a timely motion to withdraw it. The court found that the relevant statutory requirement contained in Utah Code Ann. § 77-13-6 (2004), i.e., that an attempt to withdraw a guilty plea on appeal must be preceded by a motion before the district court, was constitutional and had jurisdictional effect. Claims of ineffective assistance of counsel raised in the context of challenges to the lawfulness of guilty pleas were governed by section 77-13-6, and the court was without jurisdiction to consider defendant’s claim.

State v. Powell, 2007 UT 9, 154 P.3d 788 (Affirmed) MBD* The court rejected each of defendant’s three arguments on appeal. First, the court held that the erroneous jury instruction given at trial was harmless error. The uncontested evidence demonstrated that defendant attacked a woman with the specific intent to kill. The uncontested evidence would allow the jury only one reasonable conclusion: that defendant intentionally attempted to cause the woman’s death. Second, the court held that the district court properly refused to grant defendant’s request for a lesser included offense instruction because the State’s evidence overwhelmingly supported an attempted murder conviction, so there was no rational basis in the evidence presented at trial for the district court to grant the request for a lesser included offense instruction for assault or aggravated assault. Finally, the court held that there was no cumulative error.

ADMINISTRATIVE CASES
Sindt v. Retirement Bd., 2007 UT 16, 157 P.3d 197 (Reversed and Remanded) CMD* The constable argued that he was entitled to participation in the state retirement system for all years in which he acted as an elected or appointed constable for the county. The court held that constables were eligible for participation in the state retirement system under the Utah Public Employees’ Retirement Act (1965 Act), Utah Code Ann. §§ 49-1-32 to -73 (Supp. 1965, repealed 1967), if they received “compensation,” as defined in the act.

Dep’t of Human Servs. v. Hughes, 2007 UT 30, 156 P.3d 820 (Reversed and Remanded) MBD* Department of Human Services employee was fired after it was determined that he violated the Hatch Act by running for a seat on the Utah House of Representatives while working for the department. The court found that the Department may voluntarily comply with the Hatch Act and make personnel decisions accordingly, and the State Board had authority to review such decisions made by the Department or any other state agency. The Hatch Act contained no explicit statement that reflected an intent to preempt state law, and the Department did not have to first obtain an advisory opinion from the Office of Special Counsel officially determining that the employee had violated the Hatch Act before terminating employment.

Martinez v. Media Paymaster, 2007 UT 42, 2007 Utah LEXIS 107 (Reversed and Remanded) JNP* In reviewing a disability action, the court concluded that the proper standard for reviewing the Commission’s findings that the employee could perform the essential functions of his prior employment and that other work was reasonably available to him was a “substantial evidence” standard. Further, the court held that under the plain language of Utah Code Ann. section 34A-2-413(1), the employee bears the burden of proof because, when section 34A-2-413(1)(b) and (c) were read in context, it was clear that section 34A-2-413(1)(c) delineated the elements an employee was required to prove to meet his section 34A-2-413(1)(b)(ii) burden of establishing that he was permanently totally disabled.

In re Questar Gas, 2007 UT 79, 2007 Utah LEXIS 184 (Affirmed) MBD* Petitioners filed their request to intervene over a year after the parties initiated proceedings and after they entered into a settlement agreement, and their failure to intervene earlier was not for lack of knowledge or notice of the proceedings. The court held that the Public Service Commission properly denied petitioners’ motion to intervene under Utah Code Ann. section 63-46b-9(2) because petitioners’ request would materially impair the interests of justice and the orderly and prompt conduct of the Commission’s proceedings. Furthermore, the court concluded that the petitioners lacked appellate standing to challenge the stipulation and therefore their petition was dismissed because: (1) although ratepayers were aggrieved by the increase to their gas bill resulting from the Commission’s decision, they lacked appellate standing because they had no pecuniary interest in the public utility under Utah Code Ann. section 54-7-15(1) and therefore did not fall within the classes of persons to whom standing was granted; and (2) the stockholders lacked appellate standing because they were not aggrieved or substantially prejudiced by the Commission’s decision.

Salt Lake City Corp. v. Ross, 2007 UT 4, 153 P.3d 179 (Affirmed) REN* A police officer’s participation in the take-a-car-home program conferred sufficient benefits on the city to make participating officers eligible for workers’ compensation benefits under most circumstances, and those benefits had not ebbed away by the time the officer’s patrol car struck another vehicle outside the boundaries of the city.

Ameritemps, Inc. v. Utah Labor Comm’n, 2007 UT 8, 152 P.3d 298 (Affirmed) MJW* The court held that a finding of permanent disability under Utah Code Ann. § 34A-2-413 (2004) constituted a final agency action for purposes of appellate review. Specifically, the court concluded that although a Commission finding pursuant to section -413 of permanent total disability was not final under that statute until certain second-step proceedings took place, such a finding did constitute a final agency action within the meaning of Utah Code Ann. section 63-46b-14 for purposes of appellate judicial review.

PROCEDURAL CASES
State ex rel S.M., 2007 UT 21, 154 P.3d 835 (Affirmed) MBD* Because of abuse and neglect, the mother’s 11 children were removed from her custody. Nine of the children were subsequently returned to her. On appeal, the Guardian ad Litem (GAL) contended that the juvenile court applied the wrong legal standard and erred by excluding an expert witness. The court first determined that the permanency order was final for purposes of appellate review because it terminated the custody of the state agency over the children and awarded custody to the mother. With respect to the legal standard, the court agreed with the GAL that the juvenile court was required to determine in accordance with Utah Code Ann. section 79-3a-312(2)(a) whether the children could safely be returned to the mother. Finally, the court held that the juvenile court erred in excluding the GAL’s expert witness as untimely under Utah R. Juv. P. 20A(h)(1), but that the error was harmless and not a violation of the children’s due process rights because the testimony was cumulative.

Aaron & Morey Bonds & Bail v. Third Dist. Court, 2007 UT 24, 156 P.3d 801 (Petition Denied) JNP* A notice of non-appearance was sent to the surety regarding a bail bond that had been posted. The notice, however, did not contain the fax number of the prosecutor’s office. The surety argued that this was required under Utah Code Ann. § 77-20b-101(1)(b) (2003). The court determined that section 77-20b-101(1)(b) merely required substantial compliance with its terms; the fax number requirements set forth therein were directory rather than mandatory. The statute’s plain language did not require that number in the notice, the provision requiring the number was not in the section dealing with relief from the obligation, and the fact that alternative notice was permitted showed that strict compliance was not necessary to fulfill the statute’s purpose.

Olseth v. Larsen, 2007 UT 29, 158 P.3d 532 (Certified question answered in the affirmative) MBD* Appellant was shot by a police officer while trying to steal his police vehicle. Appellant claimed an alleged 42 U.S.C.S. § 1983 violation based on her allegation of unlawful use of deadly force. On certification from the Tenth Circuit, the court determined that the plain language of the tolling statute, Utah Code Ann. § 78-12-35 (2003), provided that the applicable statute of limitations was tolled where a defendant had left the state, or was absent. As a result, the tolling statute did toll the four-year statute of limitations even where the officer was amenable to service of process pursuant to Utah’s long-arm statute.

Beddoes v. Giffin, 2007 UT 35, 158 P.3d 1102 (Affirmed) MBD* The court held that a motion for an award of costs, filed after the entry of judgment, delays the entry of judgment for the purposes of appeal until the motion is resolved.

Code v. Dep’t of Health, 2007 UT 43, 162 P.3d 1097 (Reversed) CMD* The court held that the order signed by the district court was the entry of final judgment for appeal purposes. The plain language of Utah R. Civ. P. 7(f)(2) (2006) required that an order be filed, unless a court explicitly directed that no order needed to be submitted. Accordingly, no finality was ascribed to a memorandum decision or minute entry for purposes of triggering the appeal period.

State ex rel A.F., 2007 UT 69, 167 P.3d 1070 (Affirmed) CMD* The court held that the juvenile court’s order terminating reunification services and setting a permanency goal of adoption was not a final, appealable order.

State ex rel C.L., 2007 UT 51, 166 P.3d 608 (Reversed) JNP* The court held that a failed adoption did not qualify as “newly discovered evidence” because it was not evidence of facts in existence at the time of trial. Future developments relating to predictive testimony given at trial were facts occurring subsequent to trial and therefore could not constitute a basis for a rule 59(a)(4) motion for a new trial.

Gardner v. Galetka, 2007 UT 3, 151 P.3d 968 (Affirmed) MBD* An inmate was convicted of, inter alia, first-degree murder. The trial court wrongly defined the term “knowingly” in a jury instruction about mens rea, but the inmate failed to raise the issue until he filed a federal habeas corpus petition where he claimed that his counsel was ineffective for failing to challenge the instruction. The court held that in 1990, the inmate’s successive post-conviction claim regarding the ineffective assistance of counsel would have been procedurally barred because it could have been brought in the prior post-conviction proceeding. The good cause common law exceptions to the procedural bar were unavailable to the inmate because his successive post-conviction claim was facially implausible and therefore would have been summarily dismissed without substantive review on its merits.

FAMILY LAW CASES
Jones v. Barlow, 2007 UT 20, 154 P.3d 808 (Reversed) JNP*, MJW, MBD, REN–majority CMD*–dissenting Defendant and plaintiff, who were domestic partners, had a child through artificial insemination. They later ended their relationship. Defendant objected to the district court’s order granting plaintiff visitation of defendant’s daughter because plaintiff had no biological or legal relationship with the child, and therefore had no standing to seek visitation. The court held that the doctrine of in loco parentis, as recognized by Utah courts, did not independently grant standing to seek visitation after the in loco parentis relationship had ended. The court also declined to extend the common law doctrine of in loco parentis to create standing where it did not arise out of statute. The supreme court accordingly overturned the grant of visitation rights and held that the common law doctrine of in loco parentis did not independently grant standing to seek visitation against the wishes of a fit legal parent.

In re Connor, 2007 UT 33, 158 P.3d 1097 (Affirmed in part/vacated in part) MJW* The court held that the trial court acted within its discretion when it concluded that the father had strictly complied with the requirements of Utah Code Ann. § 78-30-4.14 (2003) and that he therefore had standing to contest the adoption. The court also concluded that absent a determination that the father was an unfit parent, he had a right to full legal and physical custody of the child that was superior to rights of the adoptive parents. With the status of failed-adoptive parents, the adoptive parents became legal strangers to the child, and the trial court had no authority to vest in them anything other than the most transitory custody and guardianship of the child.

State ex rel B.R., 2007 UT 82, 171 P.3d 435 (Vacated the opinion of the Court of Appeals) CMD* The mother had her parental rights terminated due to neglect and unfitness resulting from her struggle with methamphetamine abuse. The court found that the juvenile court acted within its discretion in terminating the mother’s parental rights. The court also held that the juvenile court’s use of the clear and convincing evidentiary standard at the permanency hearing was proper.

Thurnwold v. A.E., 2007 UT 38, 163 P.3d 623 (Affirmed) MBD*, JNP, REN, Judge William A. Barrett (for CMD)–majority MJW*–dissenting The parties’ child was born prematurely on Saturday morning of Labor Day weekend, and the mother relinquished the child for adoption on Sunday morning. The father did not file his paternity petition and register notice prior to the child’s birth, and was unable to do so after the birth until Tuesday because the court offices were closed for the holiday. The court held that unwed fathers had a constitutional right to a post-birth opportunity to assert paternity. The court held that Utah R. Civ. P. 6 applied to enlarge the filing period until the end of the next business day in cases where the unwed father would not otherwise receive a full business day to file post-birth because part or all of the 24-hour period fells on a holiday or weekend.

PROFESSIONAL MISCONDUCT CASES
In re Discipline of Crawley, 2007 UT 44, 164 P.3d 1232 MBD* The court declined to adopt specific guidelines regarding the use of probation as a sanction for attorney disciplinary matters because the district courts had the discretion to impose probation as they saw fit under the Standards for Imposing Lawyer Sanctions. The court concluded that the the standards permitted flexibility and creativity in assigning sanctions.

Fugal v. Howard, 2007 UT 88, 171 P.3d 451 (Per Curiam) The court held that because other legal remedies were available, the petition for a writ of extraordinary relief was denied.

Peters v. Pine Meadow Ranch Home Ass’n, 2007 UT 2, 151 P.3d 962 MBD* Petitioners’ counsel accused the court of appeals panel of judicial misconduct. The court noted that to make bald and unfounded accusations of judicial impropriety in briefs filed with the court was not the appropriate avenue should a lawyer be faced with genuine judicial misconduct. Counsel’s unfounded accusations regarding the supposed improper motives of the court of appeals panel were irrelevant to the questions upon which the court granted certiorari. Further, those accusations were scandalous in that they were defamatory and offensive to propriety. Counsel’s briefs included a substantial amount of material that was offensive, inappropriate, and disrespectful, and his conduct violated Utah R. App. P. 24(k) and warranted sanctions.

1. Case summaries are provided for the convenience of the reader, to identify what each case generally involves. They are not a definitive statement of the court’s holding, nor can they substitute for a careful reading of the opinion.

2. Asterisk indicates the author of the opinion. Chief Justice Christine M. Durham–CMD, Associate Chief Justice Michael J. Wilkins–MJW, Justice Ronald E. Nehring–REN, Justice Jill N. Parrish–JNP, Justice Matthew B. Durrant–MBD. Unless otherwise noted, all decisions are unanimous.

2007 Decisions from the Utah Court of Appeals
CRIMINAL
State v. Davis, 2007 UT App 13 (Improper Jury Instructions and Improper Testimony as to Statutory Elements of the Crime) Defendant was convicted of possession of drugs and drug paraphernalia, and for possession of a dangerous weapon by a restricted person. Acting on a tip from an informant, agents of Adult Probation and Parole went to a hotel room in St. George, Utah. The agents found drug residue, drug paraphernalia, and an unloaded SKS assault rifle – but no ammunition – in the room. Defendant was present in the hotel room and admitted to using drugs and that his fingerprints would be on the gun, although it was not his. After a jury trial, defendant was convicted of all three offenses. Defendant’s sentence was enhanced because the drug crimes were committed in a “drug free zone.” See Utah Code Ann. § 58-37-8.
On appeal, defendant claimed, among other things, that the trial court erred: (1) by instructing the jury that a bicycle path is a “public park” as a matter of law; and (2) by allowing defendant’s parole officer to testify that defendant’s handling the riffle met the definition of “possession” for purposes of the criminal statute.
The Utah Court of Appeals agreed that the jury should have been permitted to decide whether the predicate drug crime occurred in a protected area as defined by the statute. Consequently, it was improper to instruct the jury, as a matter of law, that the bicycle path was a public park and the appellate court reversed the enhancement of defendant’s drug convictions. The court of appeals also agreed with defendant that the trial court had exceeded its discretion by permitting the parole officer to render an impermissible legal conclusion related to the statutory definition of “possession” of the firearm. By testifying that defendant’s fingerprints on the riffle “obviously mean he handled it” and that possession is “to hold or to have it in your hands under your control,” the officer applied the facts of the case to the statutory elements of the crime and rendered an improper legal conclusion.
Disposition: Reversed and remanded for a new trial on all three charges.
West Valley City v. Fieeiki, 2007 UT App 62 (Rule 410, Utah Rules of Evidence) This is the first Utah case to establish the proper standard of review when considering a trial court’s decision whether statements were made “during plea discussions” for the purposes of Utah Rule of Evidence 410. The Utah Court of Appeals concluded that it would defer to the trial court’s factual determinations but grant no deference to the ultimate conclusion. Thus, the trial court’s decision that statements were or were not made during plea discussions is reviewed for correctness.
This is also a case of first impression for how a court should analyze whether statements were made during plea discussions. The court of appeals adopted the Robertson test, which holds that whether a statement is made during plea discussions turns on “[1] whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and [2] whether the accused’s expectation was reasonable given the totality of the objective circumstances.” See United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978). The less apparent a defendant’s subjective intent is under the test’s first prong, the more carefully the court must review whether the defendant’s expectation was reasonable under the second prong. The court of appeals agreed with the trial court – that defendant did not show an actual subjective expectation of plea discussions – and therefore did not reach the second prong, the reasonableness of defendant’s expectation.
Disposition: Affirmed.
Pleasant Grove City v. Orvis, 2007 UT App 74 (Jurisdiction from Justice Court) Orvis was convicted in a justice court of operating a business without a license. The trial court affirmed. Orvis then appealed to the Utah Court of Appeals. He argued the city had selectively enforced the ordinance in violation of the Fourteenth Amendment and Section 24 of the Utah Constitution.
The court of appeals dismissed for lack of jurisdiction. Under Utah Code section 78-5-120(7), the court of appeals only has jurisdiction over proceedings originating in the justice court if the constitutionality of the ordinance is at issue. Orvis’s appeal did not challenge the city’s ordinance. Instead, it “challenged only the constitutionality of the City’s” enforcement. Accordingly, the court of appeals lacked jurisdiction.
Disposition: Dismissed.
State v. Doran, 2007 UT App 119 (Custodial Interrogation) Defendant was convicted of aggravated sexual abuse of a child, based in part on his own confession. On appeal, defendant claimed the trial court erred when it refused to exclude his confession on Fifth Amendment grounds. The Utah Court of Appeals upheld the trial court’s ruling, specifically concluding that the confession was not obtained during custodial interrogation. The court emphasized that defendant had voluntarily entered the police station, was interviewed in an unlocked room by a plain-clothes officer, was asked only a few clarifying questions, and was free to leave after the interview.
Disposition: Affirmed.
State v. Cabrera, 2007 UT App 194 (Right to Counsel) Defendant pleaded guilty to two counts of Driving Under the Influence (DUI) with injuries, a class A misdemeanor. At sentencing, the trial court suspended the majority of the jail time and placed defendant on probation for thirty-six months. The conditions of probation included a requirement that defendant pay restitution. Defendant was represented at all times, except for a final restitution hearing.
On appeal, defendant argued that the trial court violated his Sixth Amendment right to counsel by going forward with the final restitution hearing despite his lack of counsel. The court of appeals emphasized that sentencing is a critical stage of the criminal proceedings and that restitution hearings are part of sentencing. Accordingly, the court ruled that “a criminal defendant has the right to counsel at a separate restitution hearing when restitution is ordered as part of a sentence that also includes actual or suspended jail time.” The restitution order was, therefore, held invalid.
Disposition: Affirmed in part, reversed in part, and remanded.
State v. Vos, 2007 UT App 215 (Cert. Denied) (Miranda) Defendant was suspected of murder, retained an attorney (Butcher), and surrendered to the police. Defendant was not questioned or given Miranda warnings at the time of his arrest. Five days later, Butcher informed the police that defendant wanted to make a statement and was waiving his Miranda rights. Defendant then confessed to the murder. He subsequently obtained new counsel and moved to suppress the confession under Miranda. The judge denied suppression, and defendant was convicted of murder.
The court of appeals affirmed. Miranda limits police use of statements obtained during custodial interrogation. However, the court recognized that “Miranda warnings” are not the only means of safeguarding an individual’s protected rights. Another sufficient safeguard is the presence of legal counsel. In this case, defendant’s counsel was present during the custodial interrogation. Accordingly, defendant’s rights were protected and suppression was not necessary.
Disposition: Affirmed.
State v. Mitchell, 2007 UT App 216 (Rule 24(b), Utah Rules of Criminal Procedure) Defendant was convicted of theft and filed a one-paragraph motion for a new trial. He did not support his motion with affidavits or other documentation. One month later, defendant filed a request for an extension of time in order to submit evidentiary support. He then submitted two affidavits. The trial court denied defendant’s motion, based in part on its untimely filing. Defendant appealed.
The court of appeals concluded that defendant failed to comply with rule 24 of the Utah Rules of Criminal Procedure and, therefore, affirmed. Rule 24(b) provides that “a motion for a new trial…shall be accompanied by affidavits or evidence.” Additionally, “[a] motion for a new trial shall be made no later than 10 days after entry of the sentence.” A party can seek an extension of the ten-day period, but must do so prior to its expiration. Defendant filed a motion that lacked the evidentiary support dictated by Rule 24(b). He then failed to request an extension until weeks after the deadline had passed.
Disposition: Affirmed.
Salt Lake City v. Christensen, 2007 UT App 254 (Defining Instances When Assault of an Off-Duty Police Officer Will Constitute a Crime) The Utah Court of Appeals reviewed whether an officer – who was privately employed as a hospital security guard – was acting within the scope of his authority as a peace officer at the time he was assaulted by defendant – who had come into the emergency room as a result of a domestic violence incident. The court concluded that the officer was acting within the scope of his authority at the time. In so doing, the court rejected a bright-line rule and adopted the test that there is a strong presumption that if a person assaults a uniformed officer, he or she will be responsible under Utah Code section 76-5-102.4. Specifically, the court reasoned that when defendant took a defensive stance, clenched his fists, and threatened violence, the officer’s role as a hospital security guard changed into that of a peace officer. He was acting as an officer when he subdued defendant and stopped things from escalating – even though he was “off duty” – because his response was meant to preserve law and order, and to prevent the occurrence of a crime.
Disposition: Affirmed.
State v. Biggs, 2007 UT App 261 (Reasonable Articulable Suspicion for a Traffic Stop) This case presented the issue of whether a computer check revealing the possibility that one’s car is uninsured sufficiently supports the necessary “reasonable, articulable suspicion” under the Fourth Amendment that allows an officer to stop that vehicle. Defendant – the owner who was riding as a passenger in her car at the time of the incident – argued that the officer did not have reasonable suspicion because the computer check did not reveal whether the then – unknown driver was legally insured by way of an operator’s policy.
The Utah Court of Appeals disagreed, holding that Utah law requires a car owner to maintain an owner’s insurance policy on his or her car, regardless of whether the driver of said car has an operator’s insurance policy. See Utah Code Ann. §§ 31A-22-303(1)(a), 41-12a-301(2)(a), -302(1)-(2). Therefore, the officer had a reasonable, articulable suspicion that owner defendant had committed an offense based on the fact that the computer check – which has an accuracy of up to approximately 98% – revealed that she most likely did not have an owner’s insurance policy. The fact that the officer was uncertain about whether defendant was driving her car or whether the driver had an operator’s policy only meant that the officer did not have probable cause. Despite the uncertainty, reasonable, articulable suspicion did exist to support the officer’s level – two investigatory stop of defendant’s car so that the officer could dispel or confirm that suspicion.
Disposition: Affirmed.
State v. Wengreen, 2007 UT App 264 (Cert. Denied) (Defendant’s Motions Based Upon Failure of Alleged Victim to Produce Medical Records) Defendant was convicted of sexual abuse of a minor (K.S.). On appeal, defendant claimed that the trial court erred in denying, among other things: (1) his motion for compelling compliance with a subpoena duces tecum seeking K.S.’s medical records, and (2) his motion for a new trial based on newly discovered evidence.
The Utah Court of Appeals decided that defendant could not compel production of K.S.’s medical records because he did not meet the reasonable certainty test – that (1) records existed, and (2) they were reasonably certain to contain exculpatory material – based upon defendant’s general claim that the evidence in K.S.’s medical records might be exculpatory. The court also determined that the test for new evidence, see State v. James, 819 P.2d 781 (Utah 1991), was not met even though some of the evidence could not have been discovered with due diligence before trial – prong one of the James test – and there was no indication that the evidence would have been cumulative – prong two of the James test. However, the third prong was not satisfied because the evidence defendant was seeking would not make a different outcome probable upon retrial.
Disposition: Affirmed.
State v. Dennis, 2007 UT App 266 (Reasonable Articulable Suspicion for Search of Purse) Officers saw a black truck roll through a stop sign at 3:00 a.m. The truck had previously been at a motel frequented by drug dealers. Officers stopped the truck and ran warrant checks on the driver and the passenger (defendant). Neither occupant had a warrant, although both had been involved in previous drug and burglary offenses. When the officers returned to the truck, they noticed a disconnected stereo amplifier, rolling papers, a drug pipe, and loose baggies. Defendant also concealed a black item that looked like the handle of a gun or knife. Officers then ordered defendant out of the truck and obtained the black item – a coin purse full of marijuana. Defendant moved to suppress the evidence obtained during the stop. The trial court denied the motion, and defendant appealed.
The court of appeals ruled that “officers may permissibly detain a stopped driver for investigative questioning unrelated to the traffic stop if the further detention and questioning is supported by reasonable suspicion of more serious criminal conduct.” The court acknowledged that, viewed separately, the facts in this case would not create reasonable suspicion. However, when taken in combination they could support a finding of reasonable suspicion. Nevertheless, the court did not determine whether probable cause actually existed in this case because defendant failed to adequately brief the issue. Accordingly, the trial court’s ruling was affirmed.
Disposition: Affirmed and remanded.
State v. Cahoon, 2007 UT App 269 (Cert. Granted) (Double Jeopardy) The State charged defendant with aggravated sexual abuse of a child. Defendant then filed a motion to dismiss based on the running of the applicable statute of limitations. The trial court dismissed these charges with prejudice, but also allowed the State to file an amended information, which charged defendant with simple sexual abuse of a child, a lesser included offense for which the statute of limitations had not run based on the very same conduct. Defendant then pleaded guilty.
On appeal, defendant argued that the charges in the amended information should have been dismissed on grounds of due process and double jeopardy under the Utah and United States constitutions. The Utah Court of Appeals agreed, holding that under double jeopardy jurisprudence, the dismissal of the original information “was a decision of substantive law” and the acquittal on the originally filed charges barred later prosecution of the lesser included offenses.
Disposition: Reversed.
State v. Leber, 2007 UT App 273 (Cert. Granted) (Rules 404 and 405, Utah Rules of Evidence) Leber was convicted of child abuse, a second degree felony. On appeal, defendant claimed that the trial court exceeded its discretion by admitting his prior crimes and bad acts in response to defendant’s introduction of evidence concerning the victim’s propensity for violence. In addressing the question of whether the trial court complied with the requirements of Utah Rule of Evidence 404(b) before admitting testimony of defendant’s prior bad acts under rule 405, the Utah Court of Appeals explained that defendant misunderstood the relationship between rules 404(a) and (b), and 405(a) and (b). Because this was an issue of first impression for Utah, the court of appeals referred to federal cases interpreting rules 404 and 405. See State v. Webster, 2000 UT App 238, ¶ 22 n.1, 32 P.3d 976. The court determined that there is no requirement that the trial court engage in a rule 404(b) analysis prior to addressing rule 405 where evidence is admitted under rule 404(a).
Disposition: Affirmed.
State v. Irvin, 2007 UT App 319 (Victim in a Robbery Must Be a Person) Defendant was convicted of two counts of aggravated robbery for holding up a convenience store. He took money and small items from the store, as well as the store clerk’s car keys. He then fled in the clerk’s car. The trial court ruled that two robberies had occurred because one form of property belonged to the convenience store, and one form belonged to the store clerk. Thus, there were two victims and two acts of aggravated robbery.
On appeal, the Utah Court of Appeals agreed with defendant that only one robbery occurred because the victim in a robbery must be a person. The robbery statute, Utah Code Ann. § 76-6-301, requires that property be taken from a person’s “immediate presence” and “against his will.” Further, a person or robbery victim must suffer “force or fear,” and a convenience store cannot. The court also rejected the State’s argument that two aggravated robberies occurred because two separate aggravating circumstances were met. Specifically, defendant used a dangerous weapon and took an “operable motor vehicle.” See id. § 76-6-302. The court noted that “the fact that a defendant may commit more than one aggravating act does not mean that two aggravated robberies occurred.”
Disposition: Reversed.
State v. Worthen, 2007 UT App 370 (Cert. Filed) (Rule 506(b), Utah Rules of Evidence) Defendant was charged with sexual abuse of his adoptive daughter. He denied that he had committed the crime and requested that his daughter’s privileged mental health records be reviewed by the trial court in camera, which was granted. The State appealed the trial court’s ruling, contending that (1) the court failed to determine that the records fell within an exception to the physician-patient privilege, (2) the records do not in fact pertain to an element or claim of the defense and therefore are not excepted under Utah Rule of Evidence 506(b), and (3) defendant did not establish with reasonable certainty that the records contained exculpatory material evidence.
The Utah Court of Appeals held that the trial court correctly followed State v. Cardall, 1999 UT 51, 982 P.2d 79, which requires that a defendant show an exception to rule 506(b) and establish with reasonable certainty that the records contain exculpatory evidence. The court next concluded that a motive for daughter to fabricate the abuse was an element of defendant’s defense because it would bring doubt to the State’s contention that he committed the crime, even if such a motive is not an element of the offense charged and even though defendant may have been seeking the records for impeachment purposes. Also, the court explained that it is more likely than not that the evidence of motive exists and the records will contain exculpatory evidence favorable to defendant.
Finally, the court held that defendant does not have to prove that the evidence he seeks is material, he merely has to show that the records he seeks exist and more likely than not contain favorable exculpatory evidence.
Disposition: Affirmed (except that the trial court should personally review the records).
CIVIL
Bluffdale City v. Smith, 2007 UT App 25 (Rule 7(c)(3)(B), Utah Rules of Civil Procedure) Bluffdale moved for summary judgment. In contravention of rule 7(c)(3)(b) of the Utah Rules of Civil Procedure, Smith’s memorandum in opposition “failed to contain a verbatim restatement of Bluffdale’s stated facts…and did not cite to any relevant materials, such as affidavits or discovery materials.” Accordingly, the trial court accepted Bluffdale’s statement of facts and granted summary judgment. Smith appealed.
The court of appeals acknowledged that rule 7 violations are deemed harmless when the “disputed facts [a]re clearly provided in the body of the memorandum with applicable record references.” However, Smith’s memorandum failed to provide “a coherent explanation” of any factual dispute and also failed to provide citations to supporting affidavits or evidence. Accordingly, Smith’s violations of rule 7 were not harmless, and the trial court’s grant of summary judgment was affirmed.
Disposition: Affirmed.
White v. Randall, 2007 UT App 45 (Failure to Object/Admission by Acquiescence) White owned the lower portion of a thirty-seven-acre area; Randall owned the upper portion. White’s irrigation water flowed across Randall’s land. Randall’s land also contained a pond in which White used to store his irrigation water. Randall removed the pond, and White sued for violation of his easement rights. The trial court ruled in Randall’s favor. However, the court relied on maps that had not been introduced by either party. White appealed.
On appeal, the court cautioned that a trial court cannot go outside of the evidence when making its findings. In this case, however, White consented to the trial court’s use of the maps. The trial judge had expressly informed the parties of the maps and intimated that an objection from either party would be sustained. White did not object and, in fact, used the maps to present his arguments during the hearing. Because of White’s acquiescence, the trial court’s ruling was affirmed.
Disposition: Affirmed.
Woods v. Zeluff, 2007 UT App 84 (Rule 403, Utah Rules of Evidence) After an unsuccessful foot surgery, defendant (doctor) told plaintiff (patient), “I jumped the gun,” “I’ve missed something,” and “I don’t think we should have done this surgery.” Doctor requested that patient’s testimony about these statements be excluded at trial, and the trial court granted doctor’s motion pursuant to rule 403 of the Utah Rules of Evidence.
The Utah Court of Appeals reversed, on the ground that the testimony regarding the statements was not unfairly prejudicial and was highly probative. Furthermore, the statements would not likely shift the fact finder’s attention toward an improper method or reason for making its determination, i.e., based on bias or emotion. See State v. Maurer, 770 P.2d 981, 984 (Utah 1989). Thus, there was no more than a slight risk of unfair prejudice, which did not substantially outweigh the evidence’s clear probative value. Given that the statements were central to patient’s case, the error in excluding them was prejudicial.
Disposition: Reversed and remanded for a new trial.
Smith v. Bank of Utah, Inc., 2007 UT App 89 (Negligence/Duty of Care) The issue in this case was whether defendant (bank) owed Smith an affirmative duty to ensure that its customers’ use of a drive-through exit did not create an unsafe condition for those using the sidewalk. The Utah Court of Appeals addressed whether the special-use driveway duty – that an abutting landowner has a duty to keep a public sidewalk safe for the public when it makes special use of that sidewalk – applied to the bank.
The court concluded that the special-use driveway duty did not apply where it was the bank’s customer’s negligence that caused injury rather than an actual physical sidewalk defect created or maintained by the bank. Therefore, the bank did not have a duty to keep Smith safe from its customer’s negligence where no special relationship between Smith and the bank existed.
Disposition: Affirmed.
Sachs v. Lesser, 2007 UT App 169 (Cert. Granted) (Finder’s Fee for Sale of Real Estate Company’s Stock Through Unlicensed Broker) Sachs brought an action claiming he was entitled to a finder’s fee for a transaction culminating in the purchase of all the outstanding stock of a publically-traded company involved in leasing, developing, and selling real property. The trial court granted summary judgment in favor of defendants, in part, on the grounds that Sachs’s action was barred by the Utah Real Estate Brokers Act (UREBA), Utah Code Ann. §§ 61-2-1 to -27, because he was not licensed as a Utah real estate broker at the time of the sale. The trial court concluded that the company’s only significant assets were real property and therefore only a licensed real estate broker could collect a commission related to its sale. The trial court also granted summary judgment on the alternative ground that the commission claim was barred by the statute of frauds. See Utah Code Ann. § 25-5-4(1)(e) (stating that “every agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation” is “void unless the agreement, or some note or memorandum of the agreement, is in writing, signed by the party to be charged with the agreement”).
The Utah Court of Appeals agreed with the trial court that an express contract for a finder’s fee was not enforceable where the parties did not have a meeting of the minds on the essential term of the commission or fee to be paid and that summary judgment was appropriate on that claim. The appellate court held, however, that summary judgment was inappropriately granted on the claim for contract implied in fact because, taking the evidence in the light most favorable to the nonmoving party, the disputed facts could support each of the elements of that claim: (1) defendants requested performance, (2) Sachs expected to be paid, and (3) defendants knew or should have known that Sachs expected to be compensated. The court of appeals also held that the breach of contract claim was not barred by UREBA, which did not apply to a transaction involving the sale of corporate stock as opposed to real property. Likewise, because corporate stock is personal rather than real property, the court of appeals held that Sachs’s claim for a finder’s fee was not barred by the statute of frauds.
Disposition: Affirmed in part, reversed in part, and remanded.
Volvo Commercial Fin., LLC v. Wells Fargo Bank, NA, 2007 UT App 209 (Cert. Denied) (Lowest Intermediate Balance Rule) Volvo financed Debtor’s purchase of vehicles and obtained a security interest in the vehicles and the proceeds. Debtor’s funds, which included the vehicle proceeds, were held in a Wells Fargo account. Debtor experienced financial difficulties and transferred a total of $2,000,000 from the Wells Fargo account to a different bank. Debtor later transferred $900,000 back into the Wells Fargo account to cover a negative balance. Volvo filed suit against Wells Fargo, claiming a secured interest in the $900,000 transfer.
The trial court granted Wells Fargo’s motion for summary judgment on the ground that the Lowest Intermediate Balance Rule (LIBR) generally presumes that funds withdrawn from a commingled account are the trustee’s personal funds. Accordingly, the trial court found the $2,000,000 transferred out of the Wells Fargo account and the $900,000 which was transferred back into the account were not identifiable as proceeds belonging to Volvo. The court of appeals reversed and ruled that the LIBR is not applicable when the withdrawn funds remain in the trustee’s control.
Disposition: Reversed and remanded.
Evans v. Langston, 2007 UT App 240 (Cert. Denied) (Rule 32, Utah Rules of Civil Procedure) The Evanses brought a wrongful death claim against Langston, a certified registered nurse anesthetist. At trial, the court denied the Evanses’ request to read from the deposition of their designated expert because they had the responsibility of bringing the witness to court. Langston, however, was permitted to read from the same witness’s deposition transcript because the witness was “unavailable” to Langston. The trial court also refused to allow a second expert to testify on causation of death for the Evanses.
On appeal, the Evanses claimed that the trial court erred by (1) by refusing to allow them to read from the deposition of their expert, and (2) by precluding a second expert from testifying on causation. The Utah Court of Appeals disagreed. First, under rule 32 of the Utah Rules of Civil Procedure, a party may not use a deposition if “it appears that the absence of the witness was procured by the party offering the deposition.” Here, the Evanses had “affirmatively caused their expert witness not to appear.” The court noted that this holding comported “with a trend among courts interpreting rule 32 of the Federal Rules of Civil Procedure…to require litigants to make a reasonable effort to bring out-of-state expert witnesses to trial.” Second, the trial court did not err by precluding the Evanses’ expert witness from testifying on causation. The witness was an anesthesiologist, and the decedent died of a “cardiac event.” The court followed the general rule that “a practitioner of one school of medicine is not competent to testify as an expert in a malpractice action against a practitioner in another school.”
Disposition: Affirmed.
Eldridge v. Farnsworth, 2007 UT App 243 (Cert. Denied) (Lis Pendens Not a Wrongful Lien) The buyers signed a real estate purchase contract to purchase the sellers’ ranch contingent on obtaining financing. Buyers claimed that the agreement later changed to an oral lease with an option to buy, because the buyers could not get a favorable loan. Before either the sale or the lease took place, the sellers sold the ranch to a third party at a higher price. The buyers recorded a lis pendens against the ranch and sued for specific performance or damages. The sellers counterclaimed for damages, arguing that the lis pendens was a wrongful lien.
On appeal, the Utah Court of Appeals upheld the trial court’s finding that, by their actions, the parties had abandoned the original sales contract, making specific performance, damages, and attorney fees unavailable. The appellate court also affirmed the trial court’s conclusion that the statute of frauds barred the buyers’ claim for specific performance of the oral lease option and further held that the trial court properly denied as untimely the buyers’ third motion, under Utah R. Civ. P. 15(b), to amend the pleadings to conform to the evidence. Finally, the court of appeals rejected sellers’ argument that sections 78-40-2 and 78-40-2.5 of the wrongful lien statute conflict, explaining that section 78-40-2 applies from the time the complain is filed until a lis pendens is initially recorded and that section 78-40-2.5 governs lien removal after that point. Finally, the court held that the lis pendens was authorized because the requirements under section 78-40-2 had been met: (1) there was an action pending, which (2) affected the title to or possessory right of the property. Therefore, the lis pendens was not a wrongful lien and the sellers were not entitled to treble damages, attorney fees, or costs.
Disposition: Affirmed.
Tom Heal Commercial Real Estate, Inc. v. York, 2007 UT App 265 (Real Estate Commission Under Lease-Purchase Agreement) Defendants entered into a listing agreement with Heal to sell or lease a commercial property. The agreement provided that if “the Property is sold to a tenant during the term of the lease,” defendants were to pay Heal a 6% commission. Two years into its lease, Mountainland Advanced Technology Center (MATC) decided to purchase the property. However, MATC did not have legislative authority to own property, so Alpine School District (Alpine) actually made the purchase. Alpine then leased the property to MATC on a lease-to-own basis. Heal filed suit seeking a 6% commission from the sale. The trial court ruled in Heal’s favor, determining that MATC was, in substance, the actual purchaser of the property. York appealed.
The court of appeals agreed that MATC was, in substance, the purchaser of the property. MATC acted as the party purchasing the property by: negotiating the terms of the purchase, asking Alpine to act as financier, facilitating the purchase through the Lease-Purchase Agreement with Alpine, etc. On the other hand, Alpine’s actions were consistent with those of a financier. For example, Alpine never exercised a possessory right in the property. Accordingly, the trial court’s ruling was affirmed.
Disposition: Affirmed.
Suazo v. Salt Lake City Corp., 2007 UT App 282 (Governmental Immunity Act) Suazo fell and was injured while hiking on city property. In an effort to comply with the Governmental Immunity Act (the Act), Suazo mailed notice of the claim to Rowley – the agent listed by Salt Lake City (city) with the Utah Department of Commerce (department). However, three days before Suazo’s notice was served, the city designated a new agent with the department. The city moved to dismiss Suazo’s claim under the Act. The trial court denied the motion, and the city appealed.
The court of appeals reversed. The Act mandates that “[a]ny person having a claim against a governmental entity…shall file a written notice of claim with the entity before maintaining an action.” Utah Code Ann. § 63-30d-401(2). Under the Act, notice may be sent either to the city clerk or to the city’s agent, as listed in the department’s database. If sent to the agent actually listed with the department, the city cannot claim notice was sent to the wrong person. However, Rowley was not the city’s designated agent at the time Suazo’s notice was served. Accordingly, the court reversed and directed the trial court to dismiss the action.
Disposition: Reversed and remanded with directions to dismiss.
Maak v. IHC Health Servs., Inc., 2007 UT App 244 (Cert. Denied) (Duty to Pay Coinsurance) Maak received $11,396.11 worth of treatment at one of IHC’s hospitals. IHC billed Maak’s insurance, Regence, which paid IHC $12,310.36 pursuant to an existing reimbursement contract. IHC then billed Maak $986.63 as a coinsurance payment. Maak paid IHC under protest and then filed suit for, inter alia, breach of contract. The trial court found IHC was entitled to recover Maak’s coinsurance amount and, therefore, granted IHC’s motion for summary judgment.
The Utah Court of Appeals reversed. The court examined the contract between IHC and Maak, the contract between Maak and Regence, and the contract between Regence and IHC. After construing any ambiguities in these contracts against the drafting party, the court held “that as a matter of contract law, IHC could not bill Maak for medical services after it had collected the full amount chargeable for those services from Maak’s insurer.” Accordingly, the trial court’s grant of summary judgment on this issue was reversed.
Disposition: Reversed in part and affirmed in part.
Olsen v. Olsen, 2007 UT App 296 (Social Security Benefits as Marital Assets) After a twenty-five-year marriage, the Olsens divorced. The trial court included the present value of wife’s social security benefits as a marital asset. Wife appealed.
The Utah Court of Appeals held that while Congress preempted state courts from including social security benefits as a marital asset, trial courts may still consider the benefits along with the other marital circumstances when determining a property division. In other words, trial courts may consider “social security benefits when fashioning a property division, although they [cannot] classify and divide the social security benefits as marital property.” Because the trial court classified and divided wife’s social security benefits as marital property, the court reversed and remanded.
Disposition: Reversed and remanded.
Centennial Inv. Co. v. Nuttall, 2007 UT App 321 (Cert. Filed) (Notice of Interest/Wrongful Lien) A formerly married couple owned property in joint tenancy. The former husband entered into a Real Estate Purchase Contract (REPC) with buyer. The former wife (wife) was not involved in the negotiations and did not execute the REPC. Nevertheless, the former husband (husband) represented to buyer that he had the authority to enter into the contract on behalf of his wife. When buyer learned that the parties had divorced, it tried unsuccessfully to obtain former wife’s signature on the REPC. Subsequently, husband and wife sold the property to a third party at a slightly higher price in a transaction that paid a real estate commission to husband’s sister. Buyer sued for fraud and breach of contract against both of the former spouses and filed a notice of interest against the property. Wife filed a motion to dismiss the complaint and also sent a letter to buyer’s counsel demanding release of the notice of interest.
The trial court treated the motion to dismiss as one for summary judgment, entering judgment in favor of both former spouses on the breach of contract claim and in favor of wife on the fraud claim. The court also granted wife’s motion to nullify the notice of interest as a wrongful lien pursuant to Utah Code Ann. § 38-9-7, awarding wife treble damages and attorneys fees. Upon certification of the order in favor of wife as final under rule 54 of the Utah Rules of Civil Procedure, buyer appealed.
The Utah Court of Appeals affirmed the trial court’s judgment on the breach of contract claim, explaining that buyer offered to purchase and husband offered to sell the joint interest in the property. Consequently, the REPC was ineffective to convey that interest without wife’s signature and therefore no binding contract was formed. The court of appeals also agreed with the trial court that the notice of interest was a wrongful lien because buyer filed a notice claiming an interest in the entire property rather than an interest only in husband’s divided interest.
With respect to whether wife was entitled to treble damages and attorneys fees, the court of appeals panel was split. The majority held that service of notice to remove the lien on counsel for buyer was sufficient to trigger treble damage and attorneys fees. See Utah Code Ann. § 38-9-4(2). The dissent would not have awarded treble damages or attorneys fees because the letter requesting removal of the notice of interest was served on counsel for buyer, rather than “delivered personally or mailed to the last-known address of the lien claimant.” Id.
Disposition: Affirmed.
Specht v. Big Water Town, 2007 UT App 335 (Standing) The Pyles applied for and obtained a variance of certain zoning requirements in order to construct a garage. Shortly thereafter, the town revised one of its zoning ordinances without publishing notice of the town meeting. Specht filed suit, challenging both the Pyles’ building permit and the new ordinance. However, Specht did not allege or prove that he suffered a distinct injury. The Utah Court of Appeals ruled that ownership of property located in the municipality, by itself, did not confer standing and dismissed the appeal.
Disposition: Dismissed.
Ward v. IHC Health Servs., Inc., 2007 UT App 362 (Cert. Denied) (Circular Indemnity and Lack of Meaningful Relief) Ward’s husband suffered brain injuries while undergoing an operation. Ward settled with the anesthesiologist’s employer, Mountain West. As part of the settlement, Ward agreed to indemnify Mountain West for any future claims regarding the operation. Ward then brought claims against the hospital, which were based on the anesthesiologist’s negligence. The hospital filed a third-party complaint against Mountain West, seeking indemnity. Mountain West moved for summary judgment, claiming that the two indemnity agreements made it so Ward could not obtain meaningful recovery. The Utah Court of Appeals affirmed the trial court’s grant of summary judgment after determining that “[w]hen such circular patterns of indemnity develop…courts resolve the matter by denying recovery to [the] plaintiffs.”
Disposition: Affirmed.
Markham v. Bradley, 2007 UT App 379 (Objective Reasonableness Standard for Covenant of Good Faith and Fair Dealing) This is the first case to address the extent to which the express language of a seller-financing provision in a real estate purchase contract negates the protections afforded by the covenant of good faith and fair dealing. Where such a provision gives the sellers discretion to reject the buyers’ financial information, but does not provide any express standard for exercising that discretion, the Utah Court of Appeals held that the covenant imposes an objective standard of reasonableness. Thus, the trial court correctly applied that standard when it determined that sellers breached the covenant by refusing to accept buyers’ financial information the day before it was due to sellers under the parties’ contract. The court also held that the trial court did not exceed its discretion in denying sellers’ motion for a new trial because the unchallenged findings of fact supported the trial court’s conclusion that sellers breached the covenant when they first refused buyers’ financial information and later evaluated but still rejected it as a pretext to cancel the contract.
Disposition: Affirmed.
Nature’s Sunshine Prods., Inc. v. Watson, 2007 UT App 383 (Trust Deed Dragnet Clause) This is the first case to address the extent to which a trust deed’s dragnet clause will secure new indebtedness. The dragnet clause in defendant’s First Trust Deed (original trust deed) secured “payment of all obligations now or hereafter arising pursuant to or otherwise related or connected to [the original trust deed].”
The Utah Court of Appeals concluded that the dragnet clause – when read with the modification clause – clearly limits the right to modify the original trust deed and, thus, subsection 7.0(b) of the Restatement (Third) of Property: Mortgages applied rather than subsection 7.0(c). Therefore, the court held, when the debtor entered into a new loan with a new lender in an amount more than sixteen times greater than the original home equity line of credit, it was too remote from the original trust deed to be considered a mere extension or modification. Because the new loan was not related to the original trust deed, nor did it arise pursuant to the original trust deed, that new loan did not have priority over either the original trust deed, or plaintiff’s trust deed (which was subordinate to the original trust deed). The court reached its conclusion by applying section 7.0(b) of the Restatement (Third) of Property because the new loan was outside the scope of the modification clause and materially prejudiced plaintiff.
Disposition: Affirmed.
Fox v. Brigham Young Univ., Inc., 2007 UT App 406 (Rule 803(4), Utah Rules of Evidence) Fox fell down the stairs located at BYU’s Harman Building. Fox indicated to BYU’s emergency medical technicians (EMTs) that she felt her right knee go out and that she had previously been diagnosed with osteoarthritis. These statements were transcribed in a report, which Fox signed. Fox brought suit against BYU, and the parties disagreed about the admissibility of the EMTs’ reports.
On appeal, the court acknowledged an inconsistency between Utah Code section 78-27-33, which limits an adverse party’s ability to obtain a statement from an injured person, and Rule 803(4) of the Utah Rules of Evidence. Because the supreme court has the constitutional authority to adopt rules of evidence, the court of appeals determined that section 78-27-33 was repealed to the extent that it was inconsistent with the Utah Rules of Evidence. Accordingly, the court held that the statements Fox made for the purposes of medical diagnosis and treatment were admissible.
Disposition: Affirmed.
ADMINISTRATIVE
Merrill v. Labor Comm’n, 2007 UT App 214 (Cert. Granted) (Workers’ Compensation Offset Provision Is Constitutional) As a matter of first impression for the Utah appellate courts, the Utah Court of Appeals reviewed the constitutionality of an offset provision of the Workers’ Compensation Act. Petitioner (Merrill) became permanently disabled before he turned sixty-five. At that time, Merrill’s social security disability benefits automatically converted to social security retirement benefits, although the amount he was receiving remained the same. However, in August 2007, Merrill was set to receive $550 less in combined workers’ compensation and social security benefits. See Utah Code Ann. § 34A-2-413(5) (requiring that after six years, workers’ compensation disability benefits must be reduced by half of the dollar amount of social security retirement benefits received by the individual during the same period).
Merrill then filed a Motion for Review concerning the constitutionality of Utah Code section 34A-2-413(5), which the Utah Labor Commission denied. He argued that section 34A-2-413(5) is only triggered by a disabled individual’s receipt of social security retirement benefits at age sixty-five and, therefore, it reduces workers’ compensation benefits based solely on age.
The court affirmed the Commission’s denial, holding that section 34A-2-413(5) does not violate the equal protection clause of either the Federal or Utah Constitution because (1) it creates a reasonable classification given that disabled sixty-five-year-olds receive overlapping wage replacement awards for one lost wage, and employers fully contribute to fund workers’ compensation and contribute equally with employees to fund social security; and (2) that classification is rationally related to legitimate legislative objectives – i.e., avoiding duplication of disability benefits and reducing employers’ workers’ compensation insurance premiums.
Disposition: Affirmed.
Blauer v. Dep’t of Workforce Servs., 2007 UT App 280 (Requests for Reconsideration and Time for Appeal) In 2004, DWS terminated Blauer’s employment. A DWS hearing officer and the Career Services Review Board (CSRB) both reviewed and affirmed Blauer’s dismissal. Twenty-two days after CSRB issued its final decision, Blauer submitted a request for reconsideration which was denied as untimely. Five days after this denial, and thirty-four days after CSRB’s original order, Blauer filed a petition for judicial review.
On appeal, Blauer argued the court had jurisdiction because Blauer filed his petition for judicial review within thirty days after receiving the denial of his request for reconsideration. The court of appeals acknowledged that requests for agency reconsideration generally toll the time period for seeking judicial review, but ruled that an untimely request for agency review will not be given this same effect. Accordingly, Blauer’s petition was dismissed as untimely.
Disposition: Affirmed and dismissed.
Prosper, Inc. v. Dep’t of Workforce Servs., 2007 UT App 281 (Clarification of the Residuum Rule) After her termination from employment, Katrina Iversen filed for unemployment benefits, which were denied on the ground that her employer showed she was fired for just cause. Iversen appealed, and the administrative law judge reversed and awarded benefits. The Workforce Appeals Board subsequently approved the award of benefits, refusing to consider employee testimony and written records as evidence of customer complaints against Iversen on the basis that such evid