Strand v Nupetco Associates, LLC

Nupetco appealed the district court’s denial of its rule of Civil Procedure 83 motion to declare strand a vexatious litigant arguing the court erred in limiting the scope of rule 83 to the current action. The panel reversed and remanded. It held that the district court erred in limiting 83 to the current action because 83(a)(1)(b) contains no language limiting the ground of relitigation to the current case and 83(a)(1)(c) provides that certain tactics can occur in “any action” not “this action” or “the current action”. It held that the district court’s concerns about trying to judge a litigants behavior in cases before other judges is mitigated by the requirement that vexatiousness be proven by clear and convincing evidence and that 83(a)(1(c) can only be proven in the tactics occurred in one action not over the course of several actions.

In the interests of M.L. (Division of Child and family Services v Brazzell)

Division petition for extraordinary relief arguing Brazzell, the juvenile court judge assigned to this case, exceeded the court’s subject matter jurisdiction by adjudicating putative father’s paternity claim after mother voluntarily relinquished her parental rights. The panel denied the petition. It held that under Utah code 78A-6-104(1(b), juvenile courts have continuing jurisdiction over paternity proceedings when the paternity proceeding is part of a state initiated child welfare case and joined pursuant to Utah Code 78B-15-610(1) and field before the mothers rights are relinquished or terminated, all of which occurred here and thus there was subject matter jurisdiction to grant the paternity petition. It also held that the Utah Supreme Court case relied upon by Division did not control as there was no petition for paternity field in that case and thus no holding on the issue of jurisdiction.

State v Courtney

Courtney appealed his drug conviction arguing his trial counsel was ineffective for not immediately moving for a mistral when a potential juror who was part of law enforcement drug task force said she knew Courtney form her work. The panel reversed, vacated the conviction and remanded for further proceedings. It held that trial counsel could have raised the motion for mistrial based on the potential jurors statements un Rule of Criminal Procedure 24, failure to do so here was deficient performance because he had several opportunities to make the motion before the jury was empaneled and there were no valid tactical reasons not to do so and this was prejudicial because the statements strongly suggested Courtney had been involved in other drug sales, corroborated witness testimony and the trial judge recognized that Courtney was harmed by the statements and the judge’s follow up question did not focus on the bias created all of which creates a likelihood of a different outcome.

State v Jepson

Jepson appealed her conviction for possessing a stolen credit card arguing the prosecution was barred by Utah Code 76-1-403(1) as it was art of the same criminal episode as her shoplifting conviction in justice court. The panel affirmed. It held that the citation issued in the shoplifting case was not an information as it was filed in lieu of or in the place of an information and thus the citation did not trigger 403(1) and also held the waiver form signed by Jepson at the shoplifting hearing was not a waiver of an information as it did not mention waiver of the information and Jepson pled guilty and thus the form did not trigger 403(1).


Valdez v Labor Commission

Valdez appealed commission’s order denying his application for permanent disability benefits. The panel affirmed. The panel noted that under Utah case law, aggravation of a preexisting condition by an industrial accident is compensable only to the extent that the aggravation is caused by the accident and when the causal connection ends so does compensation. Applying here, it held substantial evidence supported Commission’s finding of no compensable injury as the independent medical panel stated its opinion that the auto accident here temporarily aggravated an underlying back condition, but, had resolved before the onset of the symptoms which made it impossible for Valdez to continue work as a police officer, and additional evidence was presented including the fact that Valdez was able to return to work without limitation after the initial back issues resolved, the underlying condition was progressive and thus would have arrived at the same condition even without the accident and an independent physician also testified the aggravation resolved before the onset of the debilitation.

Perea v State

Perea appealed the dismissal of his post-conviction relief petition and motion for relief from judgment. The panel affirmed in part and dismissed in part. It affirmed the dismissal as Perea did not present any briefing on the issue and dismissed on the relief motion as Perea did not file a notice of appeal as to that issue.

CORA USA LLC v Quick Change Artist LLC

Quick Change appealed the judgment and attorney fee award to CORA in its breach of contract claim. The panel affirmed holding CORA failed to adequately brief any of the issues and awarded Quick Change fees and costs on appeal.

Miller v West Valley City

Miller appealed the dismissal of her negligence and premises liability claim against City. The panel affirmed. It held that the district court applied the correct standard because it ruled that even if Miller’s pleaded facts were true the claim failed. It affirmed dismissal on two grounds namely Miller failed to address the district court’s ruling that Utah Code 63G-7-301(3)(a)(ii) only waives immunity for conditions of the physical structure of a government building not conditions in the building and that the district court’s construction of the statute was correct because the waiver is limited to dangerous conditions of a building and silent as to conditions within the building and Utah Supreme Court precedent defines dangerous condition as a property defect. It affirmed dismissal of the negligence as failure to prevent the collision between Miller and another swimmer was an omission as the lifeguard did not act or give directions which resulted in the collision and the public duty doctrine thus barred the claim as Miller did not allege any facts which show a special relation instead of a duty to the general public.

State v Nicholls

Nicholls appealed the denial of his motion to reinstate time to directly appeal his guilty plea and sentence. The panel affirmed. It held teat under Utah Supreme Court precedent, Nicholls as applied challenge to Utah’s statutory requirement that motion to withdraw a guilty plea must be done before sentencing must be rejected as that precedent stands for the principal that guilty plea challenges made after sentencing must to be raised in a post-conviction relief proceeding. It held that Nicholls claim that he should be allowed to obtain assistance of counsel in his current post conviction action was not reviewable as the panel lacked jurisdiction to review because of the statutory requirement to raise the post sentencing challenge to his guilty plea in a post-conviction relief proceeding and because the Utah Supreme Court has already rejected Nicholls’ ineffective assistance claim and collateral attack of that holding in the Court of Appeals is therefore improper. It finally held that Nicholls failed to brief his claim that he should be allowed to appeal his sentence and also failed to point to any evidence he would have done so at the time of his sentencing and thus cannot demonstrate prejudice.

JP Landscaping v Labor Commission

JP petitioned for review of Commission’s decision upholding workers compensation benefits for a former employee. The panel affirmed. It held that the employees testimony about injuring his knee when a full wheelbarrow tipped over and his doctor’s report that stated an injury occurred and the wheelbarrow incident was the cause provided substantial evidence to support Commission’s decision to award benefits and while the actual mechanism of injury was not what the employee stated happened, there was evidence that his knee was subjected to significant stress and suffered a meniscus tear. It held the medial panel reports were properly considered by Commission as the totality of the medical evidence supports the conclusion that employee’s knee was stressed and a meniscus tear occurred including treating physician’s objective findings and the consistency of employee’s testimony with the normal symptoms of a tear including a pop in the knee and lingering pain and swelling and further held that JP failed to demonstrate that Commission erred in relying on the report once the initial mechanism f injury was disproven. It finally affirmed Commission’s denial of JP’s motion for discovery form employee’s wife and son holding JP provided no evidence that employee was involved in fraud.

ConocoPhillips Company v Utah Department of Transportation

Department appealed the breach of contract and negligence verdict in favor of ConocoPhillips arguing the district court erred in excluding certain parts of its expert witness’ deposition and not instructing the jury to disregard improper expert testimony by one of ConocoPhillips witnesses. The panel affirmed. It held the portions of the deposition were properly excluded as the witness made no connection between his experience coating areas of pipes with damaged coating with his experience watching the type of drains installed here which were alleged to have damaged the pipes and thus did not lay a foundation for his testimony about the installation and damage alleged here. It held that any error from the ConocoPhillips witness was invited as Department’s attorney agreed to have the district court not give an instruction but instead order the parties to not mention the testimony during closing argument and held Department’s alternative ground involving Rule of Evidence 103 was not raised until the reply brief and was thus rejected. It held Department’s cumulative error argument was both inadequately briefed and no more than one possible error was present here.

Spencer v Glover

Spencer appealed the dismissal of his defamation and other torts claims against Glover arising from a negative online review of Spencer and his law firm. The panel affirmed. It held that under the factors set out in Utah Supreme Court precedent, the online review was protected opinion not factual assertion as most of the comments cannot be objectively verified and placing the review on the Yelp website communicates to the reader that the post is most likely opinion not hard news. It also held that the actual facts in the review, that Spencer charged for his services, Spencer telling Glover to google his question, that Glover filed a bar complaint and that Glover was considering sing Spencer were not defamatory and thus dismissal was proper.

In the interests of B.J.V. (B.A.V. v State and B.J.)

B.A.V. appealed the order awarding permanent custody and guardianship of B.J.V. to his father B.J. The panel affirmed. It held that the undisputed facts support terminating reunification services for B.A.V. as she left a residential drug treatment program in violation of the juvenile court’s order, denied her substance abuse problem and failed to go through drug court and even if she was entailed to a hearing, there was no prejudice as the decision was based on her won admissions. The panel also noted that B.A.V.’s rights have not been terminated so her best interests arguments are premature.

In the Interests of K.K. J.R.K, and A.K. (L.K. v State)

L.K. appealed the termination of his parental rights. The panel affirmed. It held unfitness was proven by evidence of L.K.’s continued drug use, his commission of acts of domestic violence involving the mother of the children here and their continued relationship which places the children at risk as mother has unresolved mental health, drug and domestic violence issues none of which L.K. acknowledges. It held that reasonable reunification efforts took place as the state provide appointments for psychological and domestic violence assessments, provided financial assistance and placed L.K. and the mother in a shelter which they left within a week and L.K. tested positive for drugs after completing a treatment program. It finally held that L.K. failed to preserve his arguments about spousal privilege.

Judd v Bowen

Bowen appealed the district court’s order recognizing Judd’s prescriptive easement for use of and parking on the driveway of Bowen’s mountain cabin and further argued the easements were too large in scope. The panel, with one judge concurring in part and dissenting in part, affirmed in part and reversed in part. As to use of the driveway for access, the panel held the factual findings that Judd and his predecessors drove on the driveway to get to their cabin for over 70 years with at most infrequent incidents of inability to use was sufficient to support a finding of continuous use; that the driveway was visible to Bowen and his predecessors and they observed Judd and others use the driveway for over 70 years and the parties and predecessors had a history of cooperation on the sue of the driveway all of which supports a finding of open and notorious use; and Bowen failed to overcome the presumption of hostility as the district court’s finding that the driveway was built conterminously as the two cabins and that both parties and predecessors sued it points away from permissive use particularly as no evidence of license or other special relationship was introduced. The majority reversed as to parking holding that parking on a narrow driveway in the mountains is more of a possessory interest that a use interest as open-ended first come first parking by Judd will exclude Bowen form the driveway and thus the analysis here is for adverse possession. The panel upheld the access portion of the order as Judd’s access rights are the ones being interfered with by Bowen’s parking and the scope of relief was consistent with the evidence of past use, but, the majority reversed as to order changes in landscaping as those changes all related to the district court’s parking order which was reversed on appeal. The case was remanded to adjust the orders to reflect the panel’s decision. The partial dissent argued that parking is transitory and thus eh prescriptive right was correctly found here and any changes to the order would be to limit the scope of the parking right to historical practice.