Fort Pierce Industrial Park Phases II, III, and IV Owners Association v Shakespeare

Association appealed summary judgment and the attorney fee award in favor of Shakespeare in its suit to enforce the covenants conditions and restrictions. The Court reversed a vacated the fee award. It held that review was available because the district court actually ruled on whether CCRs should be strictly construed because they are unfavored at law and mere inaction is not invited error. It held that CCRs are not subject to special rules of construction but are to be construed like any other contract term. The Court held the district court’s factual findings were clearly erroneous given its improper strict construction of the CCRs and held Association’s board had authority to consider Shakespeare’s request to put up a cell phone tower, authority to reject it and properly considered city ordinances and the existing tower in the development, aesthetic concerns and could ban a third business on Shakespeare’s lot. The Court held that the board here satisfied the business judgment rule as it acted within its powers and in good faith. It held that the 60 day clock to decide was restarted when Shakespeare submitted additional materials and the decision was within the 60 day limit. The Court vacated the fee award and remanded for calculation of an award to Association under the CCRs.

Larsen v Utah State Bar

Larsen appealed his seven month suspension for making a false statement at a hearing and for failure to disclose that he showed photos of a defendant to witnesses in a timely manner. The Court affirmed in part and reversed in part. The Court reversed his suspension for violation of Rule of Professional Responsibility 3.3 as that rule requires a knowing violation meaning actual knowledge that the statement at issue is false and here the district court only found reckless violation. The Court repudiated Comment 3 to 3.3 which equates failure to make a reasonably diligent inquiry with knowing violation as it is not law and contrary to the plain language of the rule. The Court affirmed the six month suspension for violation of Rule 3.8 holding admitting a failure to disclose at trial is not timely as 3.8 requires disclosure as soon as practicable and trial is not as soon as practicable when a prosecutor knows the information before trial and 3.8’s requirements are different form the constitutional Brady duties as 3.8 aims to get the information into defense hands at a time it can assist the defense. It held the district court did not clearly error in finding an intentional violation. It finally upheld the six month suspension as that is what should generally be imposed, there were both aggravating and mitigating circumstances which essentially cancelled out, reducing the sanction was not appropriate given the intentional violation and a greater sanction was inappropriate given the mitigating circumstances and no Utah precedent with a greater sanction for violating 3.8. It finally rejected Bar’s argument that a single consolidated sanction in multi-count situations holding that would impair the Court’s ability to perform its review functions.

Trans-Western Petroleum, Inc. v United States Gypsum Company

The 10th Circuit certified the question of how to measure expectation damagers when an oil or gas lease is breached. The Court held that o the narrow context of expectation damages in a breach of contract claim, oil and gas leases are treated the same as other contracts and thus both general and consequential damages are available. The Court adopted the rule for a contract for an interest in property and set the measure of general damages as the difference between the contract and market values at the time of breach. As to consequential damages, the Court held lost profit from the sale of Trans-Western interest could be consequential damages, but, Trans-Western would need to plead them and prove causation, foreseeability and reasonable certainty of the loss. The Court finally answered whether or not post-breach evidence was admissible to prove damages in the affirmative.