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Decisions from the Utah Court of Appeals, 2008

by Judge Carolyn B. McHugh

Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of last year’s important Utah appellate decisions at an Appellate Practice Section luncheon on April 20, 2009. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, Judge McHugh’s handout is reprinted here, with her permission. (Justice Nehring’s handout will be published in a future issue of the Bar Journal.) Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

State v. McClellan, 2008 UT App 48 (Cert. Granted) (Conflicts of Interest, Ineffective Assistance of Counsel, Admissibility of Evidence)

McClellan was convicted of first-degree rape. Before trial, his attorney terminated his representation of McClellan and took a position with the Utah County Attorney’s Office. McClellan’s new counsel filed a motion to continue, but that motion was denied because McClellan refused to waive his right to a speedy trial. McClellan appealed, arguing that the trial court committed plain error when it failed to disqualify the entire prosecutor’s office after his former attorney joined the office and failed to remove a juror with a conflict of interest. McClellan also argued that he received ineffective assistance of counsel because his counsel neither moved to disqualify the prosecutor’s office nor to disqualify a juror. Finally, McClellan appealed from the trial court’s decision to admit audiotape containing his confession.

The Utah Court of Appeals rejected McClellan’s argument that he was entitled to a new trial due to his conflict of interest with the prosecutor’s office. Whether employment of a defendant’s former attorney should per se disqualify an entire prosecutor’s office was an issue of first impression, and the court of appeals adopted the rule used by the majority of other jurisdictions. The majority rule presumes that the entire office was privy to confidential information held by McClellan’s former attorney, but the presumption can be rebutted if the office shows that the attorney with the conflict was properly screened and did not work on the matter in question. In McClellan’s appeal, the record was incomplete. Because the defendant carries the burden of ensuring an adequate record is available for review, the record was construed against him in favor of finding effective assistance of counsel and the regularity of the proceedings in the trial court. Accordingly, McClellan’s claims of ineffective assistance and plain error were rejected.

The court of appeals also concluded that the trial court did not commit plain error in refusing to disqualify a juror, who worked for a circuit court and had briefly worked for the prosecutor in the past. The juror informed the trial court that her employment would not affect her ability to be impartial, and McClellan failed to show that the juror had such a bias that the proceedings would be tainted. McClellan’s ineffective assistance of counsel claim based on counsel’s actions concerning that juror also failed. To make a showing of ineffectiveness, McClellan had to overcome presumptions that counsel’s failure to object was deliberate and that the choice was strategic. The court of appeals determined that McClellan could not overcome these presumptions because the juror did not exhibit a strong bias or conflict of interest. The court also addressed an alternative means for McClellan to demonstrate that his attorney was ineffective; McClellan could show that the attorney was inattentive during jury selection. But, the court found that there was no such inattentiveness, because during the voir dire, McClellan’s attorney tried to disqualify another juror for cause and eventually used a peremptory challenge to do so.

McClellan’s final argument regarding the admissibility of the audiotape containing his interrogation was dismissed because McClellan failed to preserve the issue for appeal. Trial counsel originally moved to suppress the tape due to surprise and failure to instruct McClellan of his Miranda rights. However, once the trial court denied his motion, counsel continued to argue unfair surprise but conceded that he did not object to the tape’s admission as a rebuttal tool. Counsel also did not seek a continuance to prepare a response to the new evidence. Failure to seek a continuance constitutes a waiver of a claim of unfair surprise on appeal.

Disposition: Affirmed.

State v. Garner, 2008 UT App 32 (Cert. Denied) (Elevated minimum sentences – Rule 22(e), Utah Rules of Criminal Procedure; Sixth Amendment)

Garner was convicted of three counts of aggravated sexual assault, which were each punishable by a prison term of six, ten, or fifteen years to life. At Garner’s sentencing hearing, the trial court considered a variety of mitigating and aggravating factors submitted by the parties to support an upward or downward departure from the statutory default, middle minimum prison term of ten years to life. The trial court sentenced Garner to an indeterminate term of fifteen years to life – the maximum minimum sentence available under the statute – on each count.

Garner’s claim that the trial court failed to consider proper factors before imposing an elevated minimum sentence did not qualify for review under rule 22(e) of the Utah Rules of Criminal Procedure because this claim involved ordinary, run-of-the-mill error that does not fit into the narrow category of claims permitted under rule 22(e). However, Garner’s claim that his sentence was illegal because it violated his Sixth Amendment right to have a jury, rather than a judge, make certain findings that would elevate his sentence was reviewable under rule 22(e). Nonetheless, Garner’s sentence did not violate his Sixth Amendment right to have a jury make factual findings that could expose him to a greater sentence. Under Utah’s statutory scheme, judicial fact-finding at sentencing cannot expose a defendant to a greater sentence because the judge’s fact-finding can alter only the minimum term of an indeterminate sentence.

Disposition: Affirmed.

State v. Yount, 2008 UT App 102 (Suppression of Evidence)

After being involved in a car accident, Yount was charged with several offenses, including driving under the influence. The prosecutor subpoenaed medical records from the hospital that treated Yount immediately after the accident, but Yount did not receive notice of the subpoenas until after the hospital produced the records. Yount’s motion to suppress evidence obtained through the subpoenas was denied.

Yount had the right to notice of subpoenas sent to third parties even where the requested records allegedly contained communications that would be admissible, such as communications that qualify as an exception to the physician-patient privilege. Where a search and seizure of records violates a defendant’s rights under article I, section 14 of the Utah Constitution and no exception to the exclusionary rule applies, the evidence must be suppressed.

Disposition: Reversed.

State v. Baker, 2008 UT App 115 (Cert. Granted) (Search and Seizure)

Because of an unilluminated license plate, police pulled over a car, in which Baker was a passenger. During the check of the driver’s license, the officer realized that the driver had her license suspended for drugs. The officer requested a canine unit to check the car for drugs, and he returned to the car and arrested the driver. Other officers arrived and began to deal with the several passengers. The first officer had initially seen a knife sitting on the thigh of one of the back-seat passengers. Thus, one of the newly arrived officers confiscated the knife and asked the passengers if they had any other knives. Approximately twelve other knives were produced. The officers testified that after they had the knives there was nothing any of the passengers said or did to make them fear for their safety, yet the passengers were not free to leave until the canine unit arrived. The unit arrived and a dog indicated that it smelled drugs. The officers then frisked the passengers, finding drug paraphernalia on Baker. Baker moved to suppress the evidence of the paraphernalia (plus drugs found on him upon arrival at the jail), and the district court denied the motion, determining that Baker was not “detained” and that the officers reasonably believed that the passengers were armed and dangerous. Baker moved for suppression of the evidence, but the trial court denied that motion.

The court of appeals held that because the driver was arrested long before the canine unit arrived (notwithstanding that she was not actually put in the patrol car until right before the unit’s arrival), there was no legal reason to detain the passengers while awaiting the canine unit’s search for drugs. Requiring the passengers to remain required some reasonable articulable suspicion. Yet nothing in the officers’ testimony indicated any particularized suspicion of criminal activity on the part of the passengers. Thus, this detention while awaiting the canine search was a violation of Baker’s Fourth Amendment rights and the resulting evidence must be excluded.

Additionally, the frisk was not warranted as a Terry frisk, i.e., for the purpose of protecting the officers. When looking at the totality of the circumstances, the court of appeals determined that there was no reason for the frisk. (Although the stop occurred late at night and there were four passengers that possessed about thirteen knives, there was other evidence that the knives were voluntarily produced and surrendered well before the canine unit arrived, that the officers had no fear for their safety, that one of the officers admitted they frisked to search for contraband, and that the frisk was not done until after the canine unit arrived and signaled the presence of drugs, which was long after the encounter began.)

Disposition: Reversed and remanded.

State v. Clopten, 2008 UT App 205 (Cert. Granted) (Eyewitness Identification, Ineffective Assistance of Counsel)

Clopten was convicted of murder, failure to respond to a police command, and possession of a dangerous weapon by a restricted person, after three eyewitnesses and a former cellmate testified against him. Clopten’s defense was based on the theory of misidentification or mistaken identity. The trial court excluded the defense’s expert testimony on the fallibility of eyewitness identification but did instruct the jury about the issue. Clopten appealed, arguing that the trial court erred when it excluded the expert’s testimony and that he received ineffective assistance of counsel.

With respect to the exclusion of the expert’s testimony, the court of appeals followed precedent from the Utah Supreme Court to hold that significant deference should be afforded to the trial court in its decision to exclude an expert’s testimony. The supreme court has held that a jury instruction on the fallibility of eyewitness identification adequately conveys to the jury the weaknesses of such identification. Although the court of appeals noted the ongoing concern among courts and legal commentators about substituting jury instructions for expert testimony, it distinguished the current case from the cases that have fostered such concern. Here, Clopten was dressed completely in red, was known, in some capacity, by the three eyewitnesses, and was identified in several different settings and at various time periods after the shooting. The trial court also carefully considered the testimony, the instruction, and the facts before determining that the instructions were adequate and that expert testimony would confuse the jury.

The court of appeals also held that defense counsel’s performance was not ineffective. Defense counsel questioned the cellmate witness, who received a reduced sentence in exchange for his testimony against Clopten, at length about the circumstances leading to his testimony. Defense counsel’s failure to request a jury instruction on manslaughter was also not deficient or prejudicial. The evidence at trial indicated that the shooter, whether it was Clopten or another, had intentionally murdered the victim, and an instruction on manslaughter, which requires recklessness, would be futile.

Disposition: Affirmed. Judge Thorne concurred separately, urging the Utah Supreme Court to consider mandating the admission of expert testimony on the issue of eyewitness identification.

State v. Palmer, 2008 UT App 206 (Cert. Granted) (Utah Code section 41-6-44(6)(a))

Palmer was convicted in absentia of DUI after he failed to appear at trial. Upon stipulation by the parties, the jury was removed before the prosecution presented evidence of Palmer’s prior DUI convictions to the trial judge. After hearing prior conviction evidence, the court enhanced Palmer’s sentence pursuant to Utah Code section 41-6-44(6)(a), which declared DUI a third degree felony when the defendant had two or more convictions within the past ten years. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 2004).

On appeal, Palmer argued he was denied his constitutional right to have a jury consider his prior DUI convictions because subsection (6)(a) defined a separate element of the crime of DUI, not a sentence enhancement. See id. The Utah Court of Appeals determined that subsection (6)(a) was a sentence enhancement to be applied after a conviction under Utah Code section 41-6-44(2) had been obtained. Therefore, Palmer had no constitutional right to submit evidence of prior DUI convictions to a jury. See Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).

Disposition: Affirmed.

State v. Harry, 2008 UT App 224 (Allen Instruction)

The Utah Court of Appeals found that the modified Allen instruction used by the trial court was not coercive per se because it did not demand that jurors reach a verdict or encourage them to abandon their conscious convictions, reminded jurors that the State held the burden of proof, and directed jurors to consider all of the court’s instructions – not just the modified Allen charge. Furthermore, on its face, the modified Allen instruction did not place any undue pressure on the minority. Additionally, references by the trial court to the time and expense associated with trying the case did not render the instruction coercive per se, nor did the trial court improperly comment on the evidence. However, the court determined that the modified Allen instruction was coercive under the specific circumstances of the case because the jury foreperson indicted that the jurors were deadlocked seven to one and the charge was directed to the lone holdout juror. Moreover, the fact that the jury deliberated for only twenty-six minutes after receiving supplemental instruction implied that the minority juror was actually coerced.
The court of appeals also declined to reject all Allen and modified Allen instructions and expressly adopt the ABA model as the exclusive choice for trial courts in Utah. However, the court did express a preference for the ABA model and urged trial courts to use it as a “safe harbor” in the event of appellate review.

Disposition: Reversed and remanded for a new trial.

Salt Lake City v. George, 2008 UT App 257 (Cert. Denied) (Documents in Lieu of Testimony & Sixth Amendment Right to Confrontation)

Officers observed Frederick George in the driver’s seat of a car parked in the lot of a neighborhood park. The officers noticed bottles of alcohol in the car, conducted field sobriety tests on George, and subsequently arrested him and took him to the police station where he submitted to a breath test. Salt Lake City charged George with driving under the influence of alcohol. A jury trial was held wherein the City attempted to admit two calibration certificates in lieu of testimony from the calibration technician, who was unavailable to testify. The City argued that the certificates were self-authenticating documents under rule 902 of the Utah Rules of Evidence. The trial court ruled that the certificates were not testimonial and that the documents were admissible under Utah Code section 41-6a-515.

George appealed, arguing that admission of the certificates violated his Sixth Amendment right to confrontation. The court of appeals determined that the certificates were prepared in the course of carrying out routine calibration testing as required by rule 714-500-4 of the Utah Administrative Code and were not testimonial in nature. The court of appeals also determined that the certificates admitted pursuant to section 41-6a-515 invoked a rebuttable presumption and as a result are not self-authenticating documents. Thus, they were not admissible without the testimony of the technician.

Disposition: Affirmed.

State v. Wilkinson, 2008 UT App 395 (Search and Seizure)

Wilkinson was a passenger in a vehicle that was stopped for speeding. The driver was also operating the vehicle on a suspended driver license. As the officer was processing these violations, he called for a canine unit. The canine unit arrived, the officers briefly conferred, and a dog sniff indicated that there were drugs in the vehicle. Wilkinson was removed from the vehicle, at which point it was determined that there was a warrant for his arrest. The officers arrested Wilkinson, and a search incident to that arrest revealed drugs on his person.

Wilkinson moved to suppress this evidence on the grounds that the initial officer’s request for a canine unit, without reasonable suspicion of drug activity, was an impermissible expansion of the scope and duration of the traffic stop. The district court denied Wilkinson’s motion.

On appeal, the court of appeals also rejected Wilkinson’s scope and duration arguments. As to scope, the court relied on Illinois v. Caballes, 543 U.S. 405 (2005), for the proposition that a dog sniff reveals only contraband in which there is no reasonable expectation of privacy and therefore does not expand the scope of a traffic stop. As to duration, the court held that, so long as the overall duration of a traffic stop is not unreasonable, particular actions by police that are unsupported by reasonable suspicion do not render the stop unreasonable merely because they incrementally increase its duration. Accordingly, the court of appeals affirmed the denial of Wilkinson’s motion to suppress.

Disposition: Affirmed.

In re M.B., 2008 UT App 433 (Accomplice Liability to Vehicular Burglary/Theft and Possession of Burglary Tools)

M.B., a minor, sat in the passenger seat of a vehicle while two older male passengers, including a relative, burglarized a truck and camper. There was no affirmative evidence he acted as a lookout, was the getaway driver, or otherwise assisted in the crime. The juvenile court convicted M.B. of accomplice liability and possession of burglary tools.

The Utah Court of Appeals held that M.B.’s mere presence, even though he was in dark clothes, was not enough to establish accomplice liability when there was no evidence of active involvement. Further, M.B.’s presence in the vehicle, where there were gloves in the console and a screwdriver lodged between the console and the passenger seat, was insufficient to establish possession of burglary tools. There was no evidence of actual possession, and constructive possession could occur only when there was a “sufficient nexus” between the defendant and the tools to infer intent plus ability to control those tools. The State failed to show that M.B. handled or intended to control the screwdriver or the gloves. Accordingly, the convictions were reversed.

Disposition: Reversed

Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 41 (Implied-in-fact Contracts and Mechanics’ Liens)

The Hopkins hired Uhrhahn Construction (Uhrhahn) to partially construct their home. The Hopkins received several proposals from Uhrhahn estimating the costs and specifications for the projects. Each proposal stated that alterations that involved an increase in costs must be made in writing. The Hopkins signed the proposals. The Hopkins subsequently made an oral request for additional work, to which request Uhrhahn complied. The Hopkins then refused to pay. Uhrhahn sued, seeking damages and to foreclose on a mechanics’ lien. The trial court ruled in favor of Uhrhahn, holding that the Hopkins had waived the provision requiring changes in writing. Accordingly, it allowed Uhrhahn to recover under both its mechanics’ lien and implied contract claims. The trial court failed, however, to address whether the mechanics’ lien was timely filed.

The court of appeals affirmed the trial court’s finding of an implied-in-fact contract, which made the Hopkins liable for the cost of the extra work. Regarding the mechanics’ lien, however, it held that because the mechanics’ lien action was not timely filed, it was not enforceable. The reversal of the mechanics’ lien determination also required reversal of the trial court’s award of attorney fees to Uhrhahn. The Hopkins, then, would be entitled to their attorney fees in resisting the mechanics’ lien claim “even though the homeowners’ success…was a result of the errors or inaction of others.” 2008 UT App 41, ¶ 35. The appellate court noted, however, that such fees would be “comparatively minimal,” given that homeowners did not prevail on ancillary contract claims.

Disposition: Affirmed in part, and reversed and remanded in part.

Arnold v. Grigsby, 2008 UT App 58 (Cert. Granted) (Statue of Limitations – Utah Health Care Malpractice Act)

The Arnolds filed a complaint against Dr. Grigsby, among others, for his participation in surgeries to repair Mrs. Arnold’s colon, which was perforated during a colonoscopy performed by another doctor. The Arnolds failed to serve Dr. Grigsby with a summons and complaint. Dr. Grigsby was deposed, and then the Arnolds moved for dismissal without prejudice. Five years later, the Arnolds filed an amended complaint and served Dr. Grigsby in Tennessee, where he then resided. Dr. Grigsby moved for summary judgment, arguing that the action was barred by the Utah Health Care Malpractice Act’s two-year statute of limitations. See Utah Code Ann. § 78-14-4(1) (2002). The trial court agreed and granted summary judgment in favor of Dr. Grigsby.

On appeal, the court of appeals held that the Utah Health Care Malpractice Act’s two-year statute of limitations, see id., is not exempt from the tolling statute, see id. § 78-12-35, which suspends the running of a statute of limitations when a defendant departs from Utah after a cause of action has accrued against him or her. And this is true even though Dr. Grigsby would be amenable to service of process under Utah’s long-arm statute.

Disposition: Reversed.

Foothill Park, LC v. Judston, Inc., 2008 UT App 113 (Mechanics’ Lien and Wrongful Lien Statute)

Judston contracted with Foothill to perform land development services on Foothill’s property. Judston stopped work on the property and filed notice to hold and claim a lien in August 2004. Although Judston filed an amended notice in January 2005, he did not initiate a lien foreclosure action within the time provided by statute. Subsequently, in July 2006, Judston filed a third notice of lien, seeking the amounts due for the work performed prior to August 2004. The trial court found Judston’s third lien was wrongful and granted Foothill statutory damages and attorney fees. Judston appealed, claiming the trial court erred in ruling that by failing to enforce its lien within 180 days of the first notice, the third notice was rendered invalid. Judston further argued that the provisions of the wrongful lien statute were inapplicable to mechanics’ liens.

The Utah Court of Appeals held that the language of Utah Code section 38-1-11(4)(a) served to void the underlying lien, not simply the notice of claim. See Utah Code Ann. § 38-1-11(4)(a) (Supp. (2007) (voiding a “filed” lien if no action is taken to enforce the lien within the statutory time frame). Thus, upon expiration of 180 days after the first notice of lien was filed without initiation of a foreclosure action, the right to lien Foothill’s property for that same work expired. Because Judston’s lien was void, the court lacked jurisdiction to adjudicate claims under the lien statute. The question of whether Judston was entitled to a lien under section 38-1-3 at the time it filed its third notice of claim was one of first impression. Since Judston’s entitlement at the time of filing was unresolved, the court determined that the wrongful lien statute was inapplicable in this case.

Disposition: Affirmed in part, reversed in part, and remanded

Young v. Fire Ins. Exch., 2008 UT App 114 (Breach of Contract/Bad Faith)

Fire Insurance Exchange (FIE) stopped paying Leigh Young’s living expenses and denied her claim for damages under her insurance policy when it concluded that the fire, which damaged Young’s home, was the result of arson. Young sued, alleging breach of contract and bad faith. The trial court granted FIE’s motion for a directed verdict after Young’s expert witness was unavailable to testify. The trial court also granted summary judgment in favor of FIE on Young’s bad faith claim.

The court of appeals upheld the trial court’s grant of summary judgment on the bad faith issue. The court determined that when an insurer receives a claim from an insured for benefits, the insurer must respond reasonably and objectively, diligently investigate the facts, fairly evaluate the claim, and promptly settle or reject that claim. However, where an investigation creates a factual issue about the claim’s validity, there is a debatable reason for denial. Debatable reasons for denial eliminate bad faith claims. The trial court did not exceed its discretion in finding that FIE had a debatable defense.

With respect to the motion for directed verdict, the court of appeals reversed and remanded because Young had established a prima facie case of liability. Once a prima facie case is established, the burden shifts to FIE to prove arson. Although Young had not presented expert testimony, the court held that she had presented enough of an issue of material fact for the jury. Accordingly, directed verdict was improper.

The court also agreed with Young that the trial court exceeded its discretion by refusing to allow Young’s expert to testify. Although FIE argued that the expert was merely a rebuttal witness and that there was no evidence for him to rebut, the court noted that FIE referred to the witness as a rebuttal witness for the first time at trial. The court also rejected FIE’s argument that it would be prejudiced by the expert’s testimony because FIE had access to the expert’s report for over a year before the trial began and the report was prepared in response to several of FIE’s fact witnesses’ reports.

Disposition: Affirmed in part, and reversed and remanded in part.

Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146 (Cert. Denied) (ERISA)

The Hospital contracted with Bovis, a general contractor, to complete a Hospital expansion project. Bovis subcontracted with Western States Electric (WSE). According to its collective bargaining agreement, WSE was required to make trust fund contributions and pay wage assessments (fringe benefits) on behalf of its employees. WSE was perpetually late on those payments, and in June 2002, most of the Appellants, which included the ERISA trust fund, union employees, and the Administration Fee Fund, filed suit in federal court. They were successful in obtaining a judgment against WSE and a Garnishee Order, which required Bovis to credit over $49,000 from WSE’s earnings to the funds. Despite WSE’s history, the Union continued to allow its employees to work for WSE. The Union also failed to obtain a surety bond from WSE, as required by the collective bargaining agreement. WSE paid the employees their wages but neglected to pay the fringe benefits.

WSE subsequently filed for bankruptcy, and Appellants filed a mechanics’ lien against the Hospital’s property. Bovis and Travelers Casualty & Surety Company of America executed a bond to release the lien. Appellants then filed a lawsuit to recover the delinquent fringe benefits through foreclosure of the mechanics’ lien and collection under the contractors’ private payment bond (private bond) statute. The parties filed cross-motions for summary judgment. The trial court granted partial summary judgment in favor of Appellees – Bovis, Travelers, and the Hospital – and denied Appellant’s motion for summary judgment.

Appellants brought an interlocutory appeal, claiming (1) the trial court erred when it granted Appellees’ partial motion for summary judgment and denied Appellants’ on the grounds that Appellants did not have standing; (2) the trial court erred in concluding that the claims were preempted by ERISA; and (3) the fringe benefits could be recovered under both the mechanics’ lien and the private bond statutes.

The question regarding Appellants’ standing was one of first impression in Utah. Appellants clearly had an interest in the recovery of the fringe benefits. Notwithstanding, Appellees argued that the mechanics’ lien and private bond statutes only protected persons who performed services or provided materials to the construction project. Although the court of appeals recognized that Appellants did not personally provide labor or materials to WSE or the project, it concluded that the Appellants were standing in the shoes of the employees and were entitled to enforce their rights. The standing decision was guided by the United States Supreme Court decision of United States v. Carter, 353 U.S. 210 (1957), in which a trustee of an employee benefits trust fund brought suit against the surety of a contractor’s payment bond. There, the Supreme Court held that the trustee’s relationship to the employee was analogous to an assignor-assignee relationship; like an assignee, the trustee has standing. Actual assignment, however, is not required and accordingly, the participation of individual plaintiffs, in addition to the funds and the union, in the trial court suit did not defeat the entities’ standing. The court of appeals also joined a number of other jurisdictions in rejecting Appellees’ argument that the owner or the general contractor to the project must be a party to the collective bargaining agreement. In Utah, neither the mechanics’ lien nor the private bond statutes require such action by the owner.

With respect to the preemption question, the court of appeals relied upon New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995), where the United States Supreme Court announced a strong presumption that ERISA is not intended to preempt laws of general application affecting areas traditionally within state control and concern. See also Harmon City, Inc. v. Nielsen & Senior, 907 P.2d 1162 (Utah 1995) (limiting scope of ERISA’s preemption). Appellees could not overcome that presumption here. Both the mechanics’ lien and private bond statutes are statutes of general application that operate irrespective of ERISA. Neither mentions ERISA or any employee benefit plans or trust funds, and both regulate areas that are traditionally of state concern. Further, Appellants’ claims under either statute do not affect the relationship between ERISA entities but instead involve outside parties. Enforcement of these statutes does not create alternative remedies to those provided under ERISA. Accordingly, the mechanics’ lien and private bond statutes are not preempted by ERISA.

The court of appeals also determined that fringe benefits were recoverable under both the mechanics’ lien statute and the private bond statute. This issue also presented a question of first impression. The court concluded that the use of the phrase “value of service rendered” in the mechanics’ lien statute, see Utah Code Ann. § 38-1-3 (2005), included the benefit package, not just wages. Such an interpretation was consistent with the purpose of the statute: to protect persons who provide labor or materials. Similarly, the Utah private bond statute uses the phrase “reasonable value of the labor…performed” to describe what an owner is liable for when he fails to purchase a payment bond. See Utah Code Ann. § 14-2-1. The court of appeals concluded that this phrase also included fringe benefits because the purpose of this statute was also to protect the employees.

Disposition: Reversed.

Bangerter v. Petty, 2008 UT App 153 (Cert. Granted) (Statute of Limitations; Sheriff’s Sale)

Bangerter had an outstanding bill to her dentist, which was turned over to a collection agency. A judgment was entered against her for $307.46. The trial judge signed a writ of execution commanding the sheriff to collect the judgment and to sell enough of Bangerter’s real property to satisfy the judgment. Accordingly, Bangerter’s house was sold to Petty et. al. (the Buyers) at a sheriff’s auction in 1998. In 2004, Bangerter sued the Buyers to quiet title in the house. The trial court granted summary judgment in favor of Bangerter because the sheriff’s sale was void.

The case was before the court of appeals on a question of the statute of limitations. First, the court of appeals determined that the Buyers had properly pleaded the statutes of limitations even though they were not specifically cited in the original answer. The Buyers fully cited and explained the statutes of limitations on which they were relying in subsequent motions, and the trial court relied on these arguments.

Second, there is no statute of limitations for a quiet title claim. See In Re Hoopiiaina Trust, 2006 UT 53, ¶ 26, 144 P.3d 1129. However, here, the claim was not a “true” quiet title claim, but a claim to invalidate the sheriff’s sale. Accordingly, some statute of limitations applied. The parties argued several possibly relevant statutes of limitations, but all had passed. Thus, the court of appeals directed the trial court to enter summary judgment in favor of the Buyers.

Disposition: Reversed.

Ashton v. Learnframe, 2008 UT App 172 (Cert. Denied) (Jurisdiction)

Learnframe borrowed $1.5 million from American Pension Services (APS). Later, to satisfy its debt, Learnframe transferred ownership of all of its assets to APS. Kirt Ashton, et al., who were employees of Learnframe, filed for a writ of execution against all personal property in the employer’s possession, arguing that the transfer was fraudulent and seeking payment for unpaid wages and benefits via an execution sale of all the property in Learnframe’s possession. APS was not a party to the employees’ action.

Following a hearing at which APS and Learnframe both objected to the sale, the district court concluded that the transfer from Learnframe to APS was fraudulent and that the employees were entitled to proceed with the sale. APS appealed, challenging the propriety of the writ. The employees, however, argued that the court of appeals had no jurisdiction and therefore that the case should be dismissed.

The court of appeals held that because APS was not a named party in the trial court proceedings, APS could not appeal that decision. The court of appeals also commented that APS could have remedied the jurisdiction problem by filing a motion to intervene in the trial court proceedings or a petition for an extraordinary writ.

Disposition: Dismissed for lack of jurisdiction.

Soriano v. Graul, 2008 UT App 188 (Medical Arbitration Agreements)

Gloria Soriano sued Dr. Graul for medical malpractice. Dr. Graul filed a motion to stay the litigation and compel arbitration pursuant to a binding arbitration agreement signed by the parties. The trial court denied Dr. Graul’s motion.

Soriano sought medical attention from Dr. Graul on April 28, 2004. That same day, the parties executed the arbitration agreement, which was governed by statute. See Utah Code Ann. § 78-14-17 (Supp. 2003). Shortly thereafter, the medical malpractice arbitration statute was amended to include requirements for valid execution of a binding arbitration agreement. See id. (Supp. 2007). At trial, Soriano asserted, that the amendments were retroactive and therefore applied to her arbitration agreement even though it was signed prior to the statute’s amendment. The trial court agreed. On appeal, Dr. Graul argued that the trial court incorrectly determined that the amendments to the statute were retroactive.

The court of appeals recognized the general rule that a statute does not have retroactive application unless the statute clearly expresses such an intent. However, the court held that the plain language of the statute clearly showed that it was intended to apply retroactively to all medical arbitration agreements entered into after May 2, 1999. Such an intent was also corroborated by the legislative history. The court held that this language was enough to expressly declare that the statute’s requirements were to be applied retroactively. Because the agreement did not comply with the requirements of the arbitration statute, it was not enforceable. Dr. Graul’s constitutional contract claim was not adequately preserved for review.

Disposition: Affirmed.

Kenny v. Rich, 2008 UT App 209 (Cert. Denied) (Contractual Agreements to Arbitrate)

Rich attempted to build an addition to his home that would violate the setback provisions of his subdivision’s Declaration of Protective Covenants (the Declaration). The Homeowners Association (the HOA) refused to grant Rich a waiver or variance. The Declaration gave Rich the right to arbitrate the HOA’s decision, but Rich did not invoke this right within the time frame specified by the Declaration. The court nonetheless ordered the parties to arbitrate the dispute, but it subsequently canceled the arbitration when Rich placed conditions on his participation in the arbitration. Rich and the arbitration panel went ahead with the arbitration despite the cancellation and the HOA’s absence, and an arbitration award was produced in Rich’s favor. The trial court vacated the arbitration award, conducted a bench trial, and ruled against Rich.

Where a party is contractually bound to follow certain procedures and timelines to invoke specified contractual rights – such as the right to arbitrate a dispute – and the party fails to do so, the party has waived those rights. A trial court, not the arbitration panel, is to decide whether an agreement to arbitrate exists or whether a controversy is subject to an agreement to arbitrate. The presumption in favor of arbitration does not create a presumption in favor of finding that an agreement to arbitrate actually exists. An engagement letter signed after a trial court orders the parties to submit to arbitration is not the equivalent of an independent agreement to arbitrate. In such circumstances, a party does not waive its right to challenge the arbitration award on the basis that no agreement to arbitrate exists.

Disposition: Affirmed.

Puttuck v. Gendron, 2008 UT App 362 (Wrongful Use of Civil Proceedings, Abuse of Process)

Plaintiffs sued Defendants for, among other things, wrongful use of civil proceedings and abuse of process. Plaintiffs’ complaint alleged that Defendants had asserted a counterclaim against Plaintiffs in previous litigation between the parties, that Defendants knew that this counterclaim was false, and that the previous litigation had settled in favor of Plaintiffs. The trial court dismissed Plaintiffs’ complaint on the ground that the complaint failed to state a claim for which relief could be granted.

Plaintiffs failed to state a claim for wrongful use of civil proceedings because the settlement of the parties’ prior litigation did not qualify as a “proceeding terminated on the merits” as required for that claim. Plaintiffs failed to state a claim for abuse of process because they made no allegations regarding an ulterior purpose, or in other words, a collateral advantage that Defendants hoped to gain through the use of process. Plaintiffs’ allegations of Defendants’ intent to intimidate Plaintiffs and their desire to do harm to Plaintiffs’ business reputation alone do not suggest an advantage or gain to Defendants collateral to the proceedings. Additionally, complicating the course of litigation and increasing the costs of defense is not a collateral advantage or ulterior purpose relevant to an abuse of process claim.

Disposition: Affirmed.

Rhodes v. Deptartment of Transp., 2008 UT App 374 (Statute of Frauds)

Rhodes sued the Utah Department of Transportation (UDOT) for breach of contract and other relief, alleging that UDOT had contracted to sell Rhodes a portion of a 6.7-acre parcel of real property. Rhodes asserted that UDOT had agreed to sell him whatever remained of the parcel after UDOT conducted two land trades with third parties. The district court entered summary judgment in favor of UDOT, ruling that the alleged contract’s description of the property to be sold was inadequately specific to satisfy the statute of frauds.

The court of appeals reversed, holding that because a specified parcel was to be reduced by land trades to be conducted by the seller without the buyer’s participation or approval, determination of the land to be sold to Rhodes rested entirely within UDOT’s control and did not require any further negotiation or agreement between the parties. Accordingly, the court of appeals deemed the land description adequate to satisfy the statue of frauds.

Disposition: Reversed and remanded.

Miller Family Real Estate, LLC, v. Hajizadeh, 2008 UT App 475 (Contractual Arbitration Provisions and Substantive Claims)

Miller Family Real Estate, LLC (Miller Family) and Saied Hajizadeh entered into a Real Estate Purchase Contract (REPC) for Miller Family to purchase land owned by Hajizadeh. On the day of closing, Hajizadeh refused to sell the property. Approximately one week later, Miller Family filed a complaint, alleging breach of contract and seeking specific performance, and recorded a lis pendens against the property. Forty-two days after he refused to sell the property, Hajizadeh moved to dismiss Miller Family’s complaint because Miller Family failed to comply with the alternative dispute resolution provision in the REPC.

The alternative dispute resolution provision stated that any disputes be submitted to mediation and that mediation occur within thirty days of notice of a dispute. It did not, however, prohibit Miller Family from seeking specific performance from Hajizadeh through the judicial process, provided that Miller Family allowed Hajizadeh to file an answer pending mediation. Miller Family made an offer of mediation upon receiving notice of Hajizadeh’s motion to dismiss, but Hajizadeh refused to mediate.

The trial court found that the parties had agreed to mediation and ordered dismissal of Miller Family’s complaint without prejudice. Hajizadeh appealed, arguing that dismissal should have been with prejudice because Miller Family’s substantive claims were barred due to its failure to comply with the condition precedent of mediation.

The court of appeals refused to conclude that Miller Family’s substantive claims were barred by the failure to comply with the alternative dispute resolution provision because that provision was promissory rather than conditional. The preferred rule of contract construction interprets contracts to avoid forfeiture unless the parties expressly articulate or clearly implicate such an intent. Absent a clear intent to forfeit substantive rights if mediation did not occur within thirty days, the appeals court declined to interpret the alternative dispute resolution provision as anything other than a deadline by which mediation must be conducted.

The court of appeals then concluded that even if the alternative dispute resolution provision were a condition precedent, dismissal with prejudice was not warranted. The court of appeals relied upon the Utah Supreme Court decisions in State v. Ison, 2006 UT 26, 135 P.3d 864, and Foil v. Ballinger, 601 P.2d 144 (Utah 1979). In Ison, the supreme court refused to interpret the failure to use an agreed-upon alternative dispute resolution method as a forfeiture of substantive rights. The supreme court also held in Foil that “[t]here are numerous instances in which the law requires fulfillment of a condition precedent before the filing of a complaint, and failure to comply with the condition may result in a dismissal, but not on the merits.” 601 P.2d at 150. Instead, the parties must express their intent to forfeit substantive claims for failure to comply with the agreed-upon alternative dispute resolution method. Utah’s adoption of Costello v. United States, 365 U.S. 265 (1961), which held that dismissals where the merits were not considered because the parties failed to satisfy a precondition generally do not prohibit subsequent suits, and the Utah Supreme Court’s general aversion to dismissal with prejudice without consideration of the merits further supported the decision to affirm the dismissal without prejudice.

Disposition: Affirmed.

Rawlings v. Rawlings, 2008 UT App 478 (Cert. Granted) (Requirements for Constructive Trust)

A group of siblings (the Siblings) sued their brother Donald Rawlings, alleging that their father’s 1967 transfer of the family farm into Donald’s name created a constructive trust for the benefit of the entire family. At trial, the Siblings argued that the district court could create a constructive trust under purely equitable principles to avoid unjust enrichment to Donald. Donald argued that a constructive trust could be imposed, if at all, only if the legal requirements for the enforcement of a failed express trust were met. The district court agreed with the Siblings and imposed an equitable constructive trust. The court of appeals reversed, holding that the circumstances of the case supported only a finding of a failed express trust and that equity cannot rescue a failed express trust if established legal requirements are not met. The court further held that a district court finding of fact that the parties’ father did not intend his 1967 deed to transfer ownership of the farm to Donald was incompatible with the creation of an express trust. Accordingly, the matter was remanded to the district court with instructions to enter judgment in favor of Donald.

In a separate issue, the court of appeals reversed a district court contempt ruling against Donald. The district court held Donald in contempt due to his failure to participate in court-ordered mediation in good faith, and awarded costs related to the failed mediation to the Siblings. Donald had attended the mediation session, but had refused to compromise his legal position that he owned the farm in fee simple. The court of appeals held that, by rule, contempt sanctions are available only as to parties who fail to attend a scheduled court-ordered mediation session and not merely because a parties’ actions at mediation result in the failure of the mediation.

Disposition: Reversed and remanded.

Frito-Lay v. Labor Comm’n, 2008 UT App 314 (Cert. Granted). (URCP 60 and UAPA)

Respondent Clausing had suffered a job-related injury and filed for workers’ compensation benefits. In relation to one set of claims, the parties had stipulated to Clausing’s work history (she was able to work during some periods). The Administrative Law Judge (ALJ) then issued an order awarding benefits but did not specifically exclude from the award the weeks that the parties had stipulated that Clausing had worked (and was thus not eligible for benefits). Clausing later made demand for a full amount of payments, including the weeks she had worked. Frito-Lay refused to pay and sought relief pursuant to rule 60(b) of the Utah Rules of Civil Procedure. Although Clausing recognized that her interpretation of the award was inconsistent with the stipulation, the ALJ denied the motion, not finding “mistake, surprise, or excusable neglect” sufficient for relief under rule 60. Upon review by the Labor Commission Review Board, the Board dismissed the motion, determining simply that rule 60(b) is not cognizable in Labor Commission Proceedings. The Board stated that, instead, the Utah Administrative Procedures Act (UAPA), which does not expressly incorporate rule 60(b) but provides other methods for agency review of ALJ decisions if a request is filed within thirty days, governs.

The Utah Court of Appeals held that UAPA does not preclude the application of rule 60. The error could have been corrected with rule 60(a) because it was a clerical error resulting in the miscalculation of the total award. And the purpose of rule 60(b) is to avoid unnecessary appeals when errors can be easily corrected by the fact finder. Further, Frito-Lay’s motion could have been characterized as a timely motion for agency review since the discovery rule would be applicable here, where until Clausing made her request, Frito-Lay was not aware the order would be construed to include the days that were stipulated that she had worked.

Disposition: Reversed and remanded.

Kramer v. State Ret. Bd., 2008 UT App 351 (Standing and Contract Interpretation)

Mr. Kramer signed an enrollment form for insurance through PEHP for his wife and himself, in which he agreed to the terms of the Master Policy, which included a subrogation clause. Mrs. Kramer was in an automobile accident. PEHP paid over $30,000 of Mrs. Kramer’s medical expenses resulting from the accident. The Kramers sued the tortfeasor. PEHP notified the Kramers’ counsel of their subrogation rights. The Kramers settled their claim for $100,000 without notifying PEHP or allowing it to be involved in the process. PEHP tried to collect the $30,000 it had paid from the Kramers, but they refused to pay. The Utah Retirement Board (the Board) eventually granted summary judgment in favor of PEHP.

The court of appeals concluded that PEHP had standing to prosecute this case before the Board because PEHP comes within the broad definition of the statutory term “person” and PEHP has suffered a distinct and palpable injury. Summary judgment was appropriate because there are no disputed facts here, and the court of appeals can easily see how the hearing officer reached the conclusions he did based on the undisputed facts. The Master Policy was also a valid and binding contract for the following reasons: there is no ambiguity shown because the Kramers did not argue any alternate interpretations for terms they claim are ambiguous; there was no improper incorporation by reference; the reasonable expectations doctrine is not law in Utah; the Kramers were responsible for reviewing the policy prior to enrollment; and the common law doctrine that the tort victim must be made whole before subrogration rights are triggered can be modified by contract, which it was here.

Disposition: Affirmed.

Corwell v. Corwell, 2008 UT App 49 (Cohabitant Abuse Act)

Stacey Hall, formerly Stacey Corwell, filed a verified petition for protective order against Rocky Corwell, which the district court granted. Corwell objected arguing that he and Hall were not cohabitants as defined in the Cohabitant Abuse Act since they never lived together and their marriage had been annulled. The district court overruled Corwell’s objection and determined that the parties previous marital status was sufficient to confer jurisdiction under the Act.

Corwell appealed. The court of appeals reversed the district court and determined that a marriage annulled prior to the events giving rise to the protective order petition would not support cohabitant status.

Disposition: Reversed.

A.B. v. State (In re V.L. and P.L.), 2008 UT App 88 (Termination of Parental Rights)

Mother was the biological parent of four children. Husband was the biological father of two of those children, and A.B. was the biological father of the other two children (the Children), both of whom were born while Mother was married to Husband. Mother’s, Husband’s, and A.B.’s parental rights were all terminated. This appeal concerned the termination of A.B.’s parental rights in the Children.

The court of appeals affirmed the juvenile court’s decision terminating A.B.’s parental rights on the basis of the Utah Supreme Court’s recent decision In re B.R., 2007 UT 82, 171 P.3d 435, in which the supreme court emphasized “the juvenile court’s broad discretion to evaluate the totality of the evidence regarding both the parent’s past behavior and present circumstances.” 2008 UT App 88, ¶ 21. We concluded that the juvenile court’s decision was sufficiently supported by the evidence and that it did not exceed its discretion in discrediting the testimony of Mother and A.B. to find that A.B. had abandoned the Children and was an unfit parent.

The court of appeals also concluded that the juvenile court’s denial of A.B.’s motion for a continuance, which was filed when A.B. was appointed new counsel two weeks before the termination proceedings, was not an abuse of discretion. The Utah Supreme Court has granted trial courts substantial discretion in determining whether to grant a continuance. Here, A.B. did not show that the failure to provide a continuance was prejudicial to his case. Rather, he merely made vague allegations that he was attempting to obtain new evidence and the short time frame would not allow his counsel to make timely objections. Granting the continuance, on the other hand, would inconvenience the other parties.

With respect to A.B.’s ineffective assistance of counsel claim, the court of appeals concluded that counsel’s performance was not deficient where he failed to seek custody of the Children because the juvenile court had previously denied A.B.’s petition for visitation. Accordingly, a request for custody of the Children would likely have been denied.

Disposition: Affirmed.

In re C.D., 2008 UT App 477 (Cert. Filed) (Indian Child Welfare Act)

The Division of Child and Family Services (DCFS) originally obtained custody of C.D. and three of her siblings (the Children) due to Mother’s mental health issues. Mother agreed to transfer guardianship and custody of the Children to Grandfather, but Mother’s parental rights were not terminated. Mother, Grandfather, and the Children are members of the Navajo Nation and therefore any child custody proceedings involving the Children are governed by the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901-63 (2000) (the ICWA). After Mother, Grandfather, and the Children had been living together for approximately four years, the State removed the Children and again initiated child custody proceedings due to allegations that Grandfather was mentally and physically abusing the Children.

After a combined adjudication and dispositional hearing, the juvenile court found that DCFS had made active efforts to prevent the breakup of the Indian family as required by the ICWA, see 25 U.S.C. § 1912, but that those efforts were unsuccessful and further efforts would be futile. The juvenile court granted custody and guardianship of the Children to DCFS and changed the goal for the Children to permanent custody and guardianship. DCFS separated the Children, placing them with two non-Indian foster families. The juvenile court entered its written Findings of Fact, Conclusions of Law, and Adjudication Order on December 5, 2007, and Mother and Grandfather appealed.

Mother and Grandfather presented two issues for decision on appeal: (1) whether the juvenile court properly determined that DCFS made active efforts to prevent the breakup of the Indian family as required by the ICWA, see 25 U.S.C. § 1912; and (2) whether the juvenile court complied with the ICWA provisions requiring that Indian children be placed according to certain placement preferences or that good cause be shown for deviation from those preferences, see 25 U.S.C. § 1915(b). In addition, the State and the Guardian Ad Litem (GAL) for the Children both challenged the court of appeals’ jurisdiction to consider the placement preference issue and the GAL also challenged the court’s jurisdiction to consider whether DCFS had satisfied the active efforts requirement.

Active Efforts: The court of appeals held that it had jurisdiction to consider whether the juvenile court’s determination that the active efforts requirement of the ICWA had been satisfied and was correct, rejecting the GAL’s argument that such a determination could not be appealed until after the final permanency hearing. The appellate court then held that “the State must demonstrate that active efforts have been made with respect to the specific parent or Indian custodian from whom the Indian children are being removed or provide evidence that such efforts would be futile.” 2008 UT App 477, ¶ 30. The court then held that “the phrase active efforts [as used in the ICWA, see 25 U.S.C. § 1912(d),] connotes a more involved and less passive standard than that of reasonable efforts [as used in Utah’s child welfare statutes, see Utah Code Ann. § 78A-6-306(10) ].” 2008 UT App, 477, ¶ 34. Applying that more demanding standard, the court of appeals affirmed the juvenile court’s conclusion that further efforts with Grandfather would be futile.

Placement Preferences: Although the threshold question of jurisdiction was more difficult in the context of enforcement of the ICWA placement preferences, the court of appeals concluded that under the facts of this case, a final, appealable determination of that issue should have been reached by the juvenile court. The appellate court noted that Congress and the United States Supreme Court have stated that the placement preferences were intended as a protection of both the Indian children and of the tribe, and that those preferences form the most important substantive requirement of the ICWA, see id. ¶ 40. The court of appeals then held that

the State must begin its attempts to comply with the ICWA’s placement preferences immediately after the shelter hearing and that, by the dispositional hearing, it must demonstrate compliance with those preferences, good cause for deviating from them, or evidence of its prior attempts and a plan for compliance within a specified, reasonable time.

Id. ¶ 50.

Disposition: Affirmed in part, reversed in part, and remanded for further proceedings.

  1. For many of these cases, Judge McHugh was not the author or even a member of the panel that issued the opinion. The actual decisions are the best statement of their facts and holdings. Judge McHugh acknowledges the invaluable assistance of her law clerks, Andrea Valenti Arthur and Leslie Barron, and her intern from the University of Utah College of Law, Brian Nicholls, in preparing these summaries.


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