Breese v Barton

Breese appealed summary judgment to Barton in their boundary dispute and irrigation rights case, denial of their motion to amend and an award of attorney fees to Barton for bad faith litigation. The panel, with one judge dissenting in part, affirmed. As to summary judgment, the panel held that there was no due process violation in deciding the summary judgment motion without Breese or tis attorney being present due to a calendaring error by the attorney as Breese had presented their arguments in affidavit and briefing before the district court and was allowed to challenge the ruling through a rule of Civil Procedure 59 motion and Breese failed to identify any argument or evident they would have presented if they had attended the hearing. On the merits, the panel held that summary judgment on the irrigation right of way claim under Utah Code 73-16 was properly granted as Baton provided evidence of considerable interference with their rights in that the water available in the mainline under his property was insufficient for their needs let alone their and Breese’s needs, the “facts’ which Breese argue provide a genuine dispute were stricken form their affidavit as legal conclusions or lacking foundation and the argument that there were inferences drawn from Barton’s affidavit to support the opposite conclusion of sufficient water was not preserved as Dreese did not raise it below and a majority also held that in any event would not have been obvious to the district court. The panel affirmed the denial of the motion to amend as it was filed after the deadline for amended pleadings, three months after the briefing on the summary judgment motion was done, Breese undertook not discovery before filing the motion and waited almost a year to bring the motion to the district court’s attention for decision. It affirmed the attorney fee award holding the irrigation right of way claim was meritless as Breese made no effort to ascertain whether their claim interfered with Baton’s rights and provided no evidence on the issue whatever and even tapped Barton’s mainline without permission just a few weeks before filing suit and was done in bad faith because Breese had no basis other than their common sense belief that they had an easement for irrigation water and knew they had no claim to a small strip of land and thus could not have an honest belief their claims were valid. The case was remanded to calculate fees incurred by Barton on appeal as they prevailed on the irrigation claim. The partial dissent argued that the plain error discussion about the inference of sufficient water was improper as Dreese did not raise it in briefing.

In re M.W. (M.W. v State)

M.W. appealed the order finding him delinquent. The panel affirmed. It held there was no error in allowing a physician witness to state the victim identified M.W. as the assailant here as M.W. submitted a taped interview where a detective told M.W. the same information and several other witnesses testified to the same accusation and the later testimony was sufficient to support the finding of delinquency.

Price v Sprague

Sprague appealed judgment to Price in this landlord tenant dispute. The panel affirmed based on inadequate briefing as Sprague did not cite to the record in support of her fact assertions and made no meaningful development of relevant authority.

Salt Lake City v Howe

Howe appealed the denial of his motion for directed verdict in his lewd conduct involving a child case. The panel affirmed. It held the testimony of three adult witnesses that Howe sat under a tree ten to fifteen feet form children ages 2 to 13 in a park, covered himself with a coat and that they could observe his arm move in a manner consistent with masturbation for about 15 minutes while staring at the children was sufficient to support the conviction as the jury could infer Howe masturbated, could infer this was done knowingly or intentionally and “presence” in 76-9-702.5(1) means in the same place as the child in question which was satisfied here by Howe’s being ten to fifteen feet from the children in the park.

Sandy City v Anderson

Anderson appealed her conviction for being an escort without a license. The panel held her arguments against Utah Code 10-8-41.5 were identical to those recently rejected in the court’s Lawless decision and affirmed based on Lawless holding that the arguments were abandoned in the district court and thus unpreserved.

Petersen v Labor Commission

Petersen sought judicial review of Commission’s denial of her claim for workers compensation coverage of two neck surgeries. The panel affirmed holding substantial evidence supported the decision because two treating physicians and a three physician medical panel all concluded the surgery was unnecessary to treat the work related injury to her neck and upper body but was needed to treat an underlying preexisting condition and thus there was no causal connection allowing workers compensation benefits to be awarded.