Utah Department of Transportation v Boggess-Draper Company LLC

Company appealed the district court’s order granting Department’s motion in limine barring evidence of severance damages in its condemnation proceeding. The panel, with one judge concurring in result, reversed and remanded. The majority held the motion in limine was timely as it was made within the time allowed in the scheduling order and there was no appellate mandate limiting defenses as in the Utah Supreme Court case relied upon by Company. The majority  reversed the grant of the motion because an earlier judgment in a previous condemnation proceeding may have  a latent ambiguity as it is unclear whether Company transferred the rights it was trying to enforce in this case in the judgment as Department did not own a certain part of a roadway at the time the judgment was entered and thus there may have been no intent to transfer the rights and the district court did not consider the extrinsic evidence Company offered in support of its argument that there is a latent ambiguity. The concurrence in result argued that there is a different latent ambiguity in the judgment namely what the term “remaining property” in the release of rights means.

Nelson v Liberty Acquisitions Servicing LLC

Nelson sued Liberty and some of its employees alleging fair debt collection violations. Liberty moved to compel arbitration under the underlying credit card contract. The district court denied the motion ruling that Liberty pursued a collection action against Nelson and thus waived its right to arbitrate. The panel affirmed. It held as a matter of fist impression that “underlying litigation” for purposes of arbitration waiver analysis when a subsequent case is brought means the precious case or cases just as in the context of legal malpractice or spoliation of evidence. Thus, Liberty’s collection action which resulted in a determination the claim was time barred is the underlying litigation for waiver analysis here and Liberty failed to show the district court’s decision that bringing the collection suit waived arbitration rights was erroneous. The panel held that Liberty and the employs failed to raise the issue of prejudice to Nelson in the proceedings below and thus appellate review was unavailable.

State v Otvos

Otvos appealed his sentence. The panel affirmed. It held the district court made provision for Otvos to be returned to the state mental hospital in the sentencing order and thus there was no plain error or ineffective assistance of counsel.