State v Gray

Gray appealed the consecutive sentences imposed in his child sex abuse case. The panel, with one judge concurring, affirmed. The majority first held that there was no plain error in the district court not finding a breach of the plea agreement both because the prosecutors statements in the context of the entire hearing accurately conveyed a recommendation of concurrent sentences on five counts and consecutive for eth final count and, in any event, any breach would not have been obvious given the recommendation was exactly what the plea agreement stated. The majority affirmed the consecutive sentences holding Utah statutes allow consecutive sentences and do not impose limits on either minimums or maximums for felonies with life sentences such as the crimes involved here and noting the legislature has increased minimums for sex crimes with child victims without changing the law on consecutive sentences; holding Utah precedent allows multiple consecutive sentences in appropriate circumstances and none of the considerations in those cases, such as one criminal episode, young offender, lack of injury to victims and a three year period of being a law abiding citizen, were present here and under the totality of the circumstances here of two victims abused hundreds of items for ten years with no remorse on Gray’s part demonstrate the 70 year minimum here is not clearly excessive; and the parole board now has authority to release prisoner before serving the minimum imposed sentence if sufficient mitigating circumstances exist to persuade the board to release a prisoner thus moderating concerns about interfering with board authority. The concurrence argued that the Board’s enhanced authority eliminates any need to consider its role when imposing sentence and argued there should have been no analysis of whether the sentences here are subject to any attack other than the one argument made by Gray.

Mitchel v ReconTrust Company, N.A.

Mitchel sued ReconTrust, several financial institutions and a lawyer alleging tort claims for attempting to foreclose the mortgage on his house. The district court dismissed sot of the claims and granted summary judgment on the remaining claims to ReconTrust and the other defendants. The panel affirmed. It held the claims that ReconTrust was improperly appointed were properly dismissed as the trust deed allowed the entity to act on behalf of the lender or its successor in interest. It held the claims against ReconTrust arising from filing a notice of default were correctly dismissed as moot as the notice was withdrawn, ReconTrust promised not to initiate any further foreclosure action and has been replaced as trustee under the trust deed. It held claims based on the theory that the debt and trust deed had been severed were properly dismissed as the trust deed continued to secure the mortgage after the debt was securitized and sold. The panel held that claims the debt was paid off were correctly dismissed as evidence third parties have been paid does not mean Mitchel has paid off his mortgage debt. The panel held the quiet title claim was correctly dismissed because Mitchel admitted there is a cloud on his title namely the trust deed at issue here. It held the punitive damages claim was correctly dismissed as the bank defendants had the right under the trust deed to seek foreclosure when Mitchel failed to pay monthly installments. The panel held that there was no prejudice in the district court’s evidentiary rulings as it did not consider the affidavit Mitchel wanted excluded and considered his affidavit even after excluding it. The panel affirmed summary judgment for a bank defendant as Mitchel failed to prove the existence of a clear promise to renegotiate the terms of the loan if Mitchel would skip two payments and thus failed to carry his burden of proof. It affirmed summary judgment to bank defendants on the bad faith claim as nothing bank defends did made it impossible for Mitchel to pay the monthly installments on the loan. Summary judgment for the lawyer was affirmed as the claims against him were based on alleged misconduct of the banks. The panel finally rejected Mitchel’s claim for attorney fees as he did not prevail below or on appeal. One judge added a concurrence noting that Mitchel’s brief was inadequate as to all issues and that this was an alternative ground to affirm.

Needles, Inc. v Department of Workforce Services, Workforce Appeals Board

Needles appealed Board’s determination that online product advocates were employees of Needles for purposes of paying unemployment insurance purposes. The panel affirmed. It held that Board reasonably concluded that the fact the advocates worked form home was not particularly important given they do chat online with people interested in products; that there was no substantial investment by the advocates given the probability they had computers and Internet access before becoming advocates and the fact that all the chats took place using Needles proprietary software; that there was no evidence that the advocates actually worked for other clients doing online chat or product advocacy; that there was no evidence that the advocates had any risk of loss as they were paid per chat and the fat they could make more money by doing more chats did not demonstrate risk of loss; that merely having a presence on Facebook or a blog did mean the advocates were advertising their advocacy services; that issuing a 1099 did not necessarily indicate independent contractor status as it was issued by Needles and not at the advocates request; and that on balance Needles failed to rebut the presumption of employee status.

Asset Acceptance LLC v Stocks

Stocks appealed the denial of his rule of Civil Procedure 60(b) motion to set aside the default judgment in this case. The panel, 2-1, affirmed. The majority, while acknowledging that what the limitations period is in a collection case involving a credit card is an important question of first impression in Utah, held that the rule 60(b) motion was properly granted because Stocks failed to exercise due diligence as he either did not read the discovery paperwork or ignored the warnings therein and in any event chose to not respond to the discovery requests after receiving written notice that the factual allegations would be deemed admitted and thus he did not qualify for Rule 60(b) relief. The dissent argued that the district court implicitly found excusable neglect and the issue of which statute of limitations applies should be answered in this case.

In the Matter of the estate of Gordon Womack (Womack v Leavitt and Hendrickson)

Womack appealed the denial of his petition to reopen the estate and change the distribution of mineral rights to conform to decedent’s intent. The panel affirmed. It held that the district court correctly characterized the petition as one to reopen or vacate as the petition sought to revisit the meaning of the mineral rights provision of the will which was already construed by the district court in proceedings in 1990s and followed the common law rule that life estates in the mineral rights do not include rights to the proceeds from new extractions which belong to remaindermen which are decedent’s grandchildren in this case. Thus, whether applying the limitations period for reopening an estate or the catch all four year period, the limitations period ran from the entry the estate closing order in the 1990s and even if communications form a mineral company could trigger the period, Womack failed to provide evidence the communications occurred within the limitations period. The panel denied Leavitt and Hendrickson’s motion for attorney fees finding the appeal was not frivolous for Rule of Appellate procedure 33 purposes.

2010-1 RADC/CADC Venture, LLC v Dos Logos, LLC

Dos Lagos and other defendants appealed summary judgment granted to Venture. The panel affirmed. It held that Venture’s claim was not time barred as a coholder of the note brought suit within three months of the trustee sale, Dos Lagos having been sued was given all the notice of Venture’s claim it was entitled to and the original plaintiff and Venture had an identity of interests. The panel held the award of judgment for full deficiency was correct as the correct amount was added through amendment to the complaint and Dos Lagos pointed to no inaction on their part which the incorrect amount induced from them. The panel finally held it was correct to award Venture the full amount of the deficiency as it is no business of Dos Lagos how the deficiency is divided between the two plaintiffs and Dos Lagos also failed to cite any authority for their argument.

Brenner v Department of Workforce Services

Brenner appealed the denial of his application for unemployment benefits. The panel affirmed holding there was no abuse of discretion in finding opening a suspicious email after instructions to not open it which resulted in infection to the employer’s computer system and requiring hours of work to undo the damage was good cause to fire Brenner.

Schur v Department of Workforce Services

Schur appealed the dismissal of his administrative appeal of the denial of application for unemployment befits. The panela affirmed holding there was no abuse of discretion in the dismissal given Schur had three opportunities for a hearing, was provided correct contact information and Department permissibly found his explanations for missing the three hearings not credible.

Porter v EB Golf LLC

Porter appealed summary judgment granted to EB. The panel affirmed holding Porter failed to provide any evidence or even citations to evidence supporting damages on appeal.

Stuart v State

Stuart appealed the denial of actual innocence petition. The panel affirmed holding Stuart was merely raising issues already litigated in prior proceedings.

State v Howell

Howell challenged his convictions and sentence. The panel affirmed. It held Howell’s challenge to his racketeering conviction was not preserved. It held there was no ineffective assistance of counsel as the codefendant would have testified about his existing plea deal which did not include protection form deportation and victim testimony Howell’s own statements to police were sufficient in any event to support guilty verdicts. The panel held the willfulness element in the securities fraud counts was proved as Howell did not disclose his codefendant’s plan to siphon off funds to investors and made affirmative misrepresentations about the status of projects to investors. It held there was no plain error in the state not disclosing codefendant’s Canadian citizenship as codefendant’s testimony would have been that there was no protection in place against deportation in his plea agreement would have bolstered his credibility. It finally rejected Howell’s proportionality argument as Utah law prohibits comparisons among those convicted of a crime and there is no reason not to extend that rule to bar comparison between codefendants.