Beckman v Cybertary Franchising, LLC et al.

Beckman appealed the denial of her motion to amend, the exclusion of certain evidence, a jury instruction, the denial of pretrial interest motion and the award of attorney fees to defendants. The panel affirmed in part, reversed in part, vacated in part and remanded. It affirm on the motion amend as the motion was untimely being filed after the deadline for discovery and the case was making to progress, there was no good radon Beckman delayed filing the motion to amend based on her bankruptcy filing, and there was no clear error in finding prejudice against defendants if amendment was allowed. It affirmed on the exclusion order as the parties both agreed their recorded conversation was done for purposes of settling their dispute and none of the exceptions to the Rule of Evidence 408 bar applied. It reversed on the jury instruction defining cause to terminate as it went beyond the plain language of the employment contract which set out seven grounds to terminate for cause, the instruction allowed the jury to find for defendants with only a finding of objective good faith without any finding one or more ground set out in the contract occurred and thus remand for a new trial is necessary. It reversed as to prejudgment interest as Beckman successful prosecuted her claim for unpaid wages, those damages were mathematically calculable as of the date of her termination, the fact her unsuccessful claim about tarnation would not be calculable does not change things nor does Utah Code 15-1-1(2) change the rule for when prejudgment interest is allowed. It vacated and remanded the attorney fee award to Cybertary as the fee provision at issue was ambiguous as to how the total amount at issue is to recalculated, the district courts approach of treating Beckman’s amount claimed and defendants amount claimed was supported by the agreement and extrinsic evidence is necessary to determine if the amount at issue is found by subtracting claims from each other or adding all claims together. It reversed the fee award to the other defendants holding Beckman’s claim against them was for bad faith not breach of contract and thus the reciprocal fee statute did not apply. It finally denied fees on appeal as neither Beckman nor Cybertary provided any analysis about why fees should be awarded here.

Edwards v Utah’s Johnny Appleseed Inc.

Edwards appealed summary judgment to Appleseed in her slip and fall case. The panel reversed and remanded holding both parties presented evidence as to whether an agent of Appleseed created a temporary hazardous condition, Edwards thus met her burden of production and summary judgment was thus improper.

State v Parades

Parades appealed the denial of his motion to withdraw his guilty plea. The panel affirmed. It held there was no clear error in the district court’s determination based on the plea hearing recording that Parades had read his plea agreement including the provision about deportation and understood its contents. It held the deportation provision was identical to one held adequate by a panel of the Court in 2014 and thus adequately informed Parades of the immigration consequences of his plea.

The Frugal Flamingo Quick Stop v Farm Bureau Mutual insurance Company

Frugal appealed the denial of its motion to amend its complaint. The panel affirmed holding there was no plain error here as relation back under Rule of Civil Procedure 15 did not apply as the claims against an employee arose from thefts and the claim against Company arose afterword during claim processing and there was no notice to Company about the claims Frugal sough to add, and in any event the motion was untimely and no good reason exits to excuse the tardiness.

In the Interest of K.W. and A.W. (A.W. v State)

Father appealed the termination of his parental rights. The panel affirmed. It held that the juvenile court did not clearly error in finding father’s disabilities were reasonably accommodated and father failed to request additional accommodations, failed to take advantage of the offered accommodations and stated repeatedly he did nothing wrong and resented the kidnapping of his children. It affirmed the best interests decision as father did not present his proposed custody plan at any point before appeal , the foster parents seeking to adopt the children are open to continuing visits by father and the state proved father has not and is not capable of rectifying the circumstances which led to removing the children. It finally held father inadequately briefed his argument about whether termination was strictly necessary.

State v Grunwald

Grunwald appealed her convictions for aggravated murder, attempted aggravated murder, felony discharge of a firearm and carjacking. The panel affirmed in part and reversed and remanded in part. It held Grunwald’s attorney deficiently performed as the jury instruction on accomplice liability misstated the law in three ways (allowing conviction on a finding or recklessness when the actual mens rea is intentional or knowing; failed to require a connection between the charged act and the accomplishment of the underlying crime; and focusing on the actions of the other accomplice involved rather than Grunwald’s conduct and counsel failed to object to the instruction. It found no prejudice as to the aggravated murder and carjacking convictions because the accomplice stated he was going to buck a police officer in the head while holding a gun, Grunwald pushed on the break allowing the car to be put into drive and then stayed at the roadside until the accomplice fired at the officer and the gun was fired when Grunwald indicated there was no traffic and thus no witnesses and the carjacking occurred because Grunwald flagged down a  car allowing the accomplice to point a gun at the driver and steel the car. It reversed on the other convictions because there was no evidence that the accomplice announced his intention to shoot and evidence Grunwald applied the brakes supports a theory she did so to avoid traffic not to allow tea accomplice to shoot another police offer and the instructions did not require a connection between actions and the crimes charged.

Winegar v Springville City et al.

Winegar appealed the summary judgment dismissal of their tort claim act case. It rejected Winegar’s estopel argument as he inadequately briefed the withholding information ground, there was no specific written representation form City that Winegar had complied with tort claim act, claims against employees individually were not included in the original notice and no evidence exists that Winegar sought to learn the identity of the employees before filing the tort claim act notice, and the claim was denied more than one year before suit was filed  even under Winegar’s own theory of when denial happened. It rejected Winegar’s argument that City did not strictly comply with the tort claim act as no specific words of denial are required and there is no requirement City’s insurance company identify itself when denying the claim.

Checketts v Providence City

Checketts appealed the district court decision affirming City’s denial of their application for nonconforming use of their property and awarding attorney fees. The panel affirmed in part and reversed in part. It affirmed City’s nonconforming use decision because the tabletop manufacturing use in question was never a permitted use under City’s zoning laws and zoning estoppel did not apply as City repeatedly told Checketts that the tabletop manufacturing business violated the ordinance. It reversed the attorney fee award holding Utah Code 13-43-206(12) was not triggered here because there was no litigation originating in court as of the time the advisory opinion involved here was issued and 206(12) is connected to impact fee challenges not regular zoning disputes.