Bauman v The Kroger Company and Taylor

Bauman appealed summary judgment for Kroger and Taylor. The panel affirmed. It held that Bauman failed to preserve her argument about a medical expert report as to Taylor by not seeking a ruling below and only raising the issue in her reply brief. As to Kroger, the panel held Rule of Civil Procedure 26(d)(4) applied as it governs disclosure of expert witnesses at the summary judgment stage, disclosure is supported by sound policy of just but efficient and timely resolution of cases and here, Bauman brought her action initially in 2007 and thus had nearly 7 years to disclose and failed to do so.

Landry v State

Landry appealed the dismissal of his petition for post-conviction relief. The panel reversed and remanded for appropriate remedies. It held that trail counsel’s performance was deficient on two points. First, counsel failed to object to evidence that canine accelerant detection is better than laboratory detection equipment as Court of Appels precedent at the time of trial required either confirming laboratory results or expert testimony before canine detection evidence could be admitted neither of which were proffered at trial and the only reason no objection was made was lack of preparation on the issue. Second, trial counsel failed to consult an independent fire expert even though this was her first arson defense, she had minimal knowledge of the subject, only consulted the state’s expert who was the lead investigator, the fire investigation had significant flaws and the alternative defenses offered at trial had significant weaknesses. the panel held these deficiencies were prejudicial because counsel did not attack the whole evidentiary support for the arson charge despite significant weaknesses in the investigation, the canine alert testimony would have been excluded and the jury was deadlocked on the verdict and only returned one after being informed they would have to return the next day which would have been a hardship for at least one juror. Thus, the panel concluded an audial was likely in the absence of the ineffective assistance. As trial counsel was ineffective, direct appeal counsel was sine effective for not arguing that issue and that failure was prejudicial as reversal was likely. The case was reminded for approached remedy as Landry was out of prison and had moved to Texas and therefore ordering retrial may not be the right approach in this matter.

Tangren Family Trust v Tangren

Tangren appealed summary judgment to Trust. The panel, with one judge concurring, affirmed. The majority held that the district court had subject matter jurisdiction over the breach of lease case filed here, that Tangren’s Full Faith and Credit argument was waived for failure to argue it below and the case was not collaterally estopped as the Nevada court where Trust and Tangren litigate other issues entered only an interim order and later concluded it lacked jurisdiction over the lease in question here. It held the district court properly denied Tangren’s Rule of Civil Procedure 60(b) motion as the incorrect 10 day response period was harmless given the 80 days allowed by the district court before default was ordered and Tangren did not appear in the breach of lease case even though he attended the hearing on a temporary restraining order as he did not file a pleading and Utah case law has a bright line rule that filing a pleading is the way a party appears in a civil case. The concurrence expressed concern that appearing at a hearing is not enough to “appear’ in a civil case as doing so formally presents the person before court and subjects the person to the court’s jurisdiction and argued that such a physical appearance is consistent with the reasoning in Utah case law adopting the bright line filing rule.

Red Bridge Capital, LLC v Dos Lagos, LLC

Dos Lagos appealed summary denial of its motion to record a satisfaction of judgment. The panel reversed and remanded. It held the district court failed to explain the basis of its decision and erroneously refused to consider extrinsic evidence on Dos Logos’ mistake defenses. The panel also vacated an attorney fee award for Red Bridge based on the reversal.

Hutchings v Labor Commission

Hutchings petitioned for review of the denial of her application for permanent total disability benefits. The panel, with one judge concurring only in result, denied her petition. The majority held the medical panel here was instructed in a way that did not distort or neglect the governing aggravation rule and considered the lifting incident Hutchings argued caused her back pain as part of its report. It held Commission’s determination that there was no medical causal link between the lifting incident and her back pain was supported by substantial evidence because the medical report rejected the connection between incident and back pain based on the orthopedic surgeons examination of Hutchison and their review of the medical records and Hutchings did not report the incident and had no significant change in her back for a significant period after the incident and was diagnosed with degenerative spinal problems.

Smith v Honorable Hruby-Mills

Smith petitions for extraordinary relief arguing Hruby-Mills was required to hold a new hearing on his motion to suppress as part of his trial de novo on appeal from eth justice court. The panel denied his petition. It held that while the trial de novo is part of the same proceeding and thus issue preclusion does not apply, law of the case does apply and judges are allowed but are not required to rehear motions to suppress or any other issues that have been decided as part of the case. It held relief was not proper here as Hruby-Mills did not abuse her discretion in ruling a new hearing was not necessary given the earlier hearing on the motion and the lack of any change in law or evidence since that time.

MacFarlane v Applebee’s Restaurant

MacFarlane appealed summary judgment to Applebee’s in her slip and fall case arguing Applebee’s owed a duty to keep the parking lot safe. The panel affirmed. It held that only possessors of land owe duties to invitees and Applebee’s was not a possessor of the parking lot where MacFarlane slipped and fell because the lease here limited Applebee’s right to exclude others from the lot as it had to share space with other stores in the mall and the landlord retained duty to maintain the lot. The panel noted this outcome is consistent with the case law from other states a federal appeals court.

Marziale v Spanish Fork City

Marziale appealed summary judgment for City in her slip and fall case arguing her complaint was filed within the limitations period. The panel agreed and reversed. It held one of two complaints filed within the period was “accepted” by the electronic filing service and there is no jurisdictional requirement payment of filing fees be paid before a pleading can be accepted. It also held that Marziale corrected the credit card error the same day her attorney’s office was notified and refusal of a credit card, like dishonor of a check, only triggers 10 day period to pay not automatic rejection.

Checketts v Providence City

Checketts appealed the district court’s dismissal of their action for failure to exhaust administrative remedies. The panel dismissed as moot and barred by res judicata. It held the appeal was moot as Checketts actually pursued administrative remedies to a final order and obtained district court review of that order and thus the appeal here is moot as Checketts obtained review of its arguments. The panel held that reviewing this appeal is barred by issue preclusion as the issues have been argued to a final judgement in the review of City’s zoning decisions. It finally awarded City attorney fees as pursuing the appeal after administrative proceedings had concluded was frivolous and done to delay the decision on the issues to allow continued operation of business in a place where the zoning code does allow operations.