Scott v Scott

Wife appealed the district court’s order terminating alimony on the grounds of cohabitation. The panel affirmed but modified the date of termination. It held that wife admitted her relationship with her boyfriend was sexual in nature, wife and boyfriend worked together to select a house in California to live together and made plans to move personal items from Utah to the new house and had a two year relationship of increasing intimacy evidenced by becoming engaged, traveling together, including extended family in their relationship and finally planning to live together in California and grow old together and the 6 weeks of actual occupation of a common home in California was sufficient under the circumstances to find cohabitation as of the date wife moved into the California home, but, not back to the date of a family Christmas party as found by the district court.. The panel rejected wife’s contrary arguments holding precedent rejects the need for a current cohabitation relationship the language of the cohabitation statute when read as requiring only the proof of a cohabitation relationship is consistent with the provisions for termination on remarriage particularly as alimony terminates instead of suspends and requiring present cohabitation would lead to unintended consequences of favoring cohabitation over remarriage  and there is no workable rule as to when the present relationship would need to be proven to exist. The panela acknowledged tension between the termination of alimony upon the establishment of a cohabitation relationship and the economic purposes of alimony, but, noted wife entered into such a relationship and bears the consequences of her choice and in any event the balance of competing policy goals is a legislative not judicial matter. The case was remand to recalculate the alimony refund owed husband using the correct date.

Robinson v Robinson

Husband sued wife and several other defendants alleging fraud and other civil claims relating to the real estate portion of the property settlement in his divorce action. Wife cross appealed the denial of attorney fee motion. The panel, with on judge concurring in part and concurring in result in part, affirmed. The panel held this action was independent from the divorce action and thus rule 60 time limits did not apply while the statute of limitations on fraud actions did. The majority held that  the district court erred in considering materials outside the complaint in ruling on the motion to dismiss, but this was harmless as the complaint failed to plead fraud with particularity as it failed to point any false statement about eh ability to refinance a commercial building or reliance on any such statement, failed to identify any factual basis for an allegation of misuse of marital funds , and failed entirely to identify the accounts wife allegedly placed marital funds in for the benefit of the other defendants. The majority held that husband field to adequately plead two fiduciary duty claims as he failed to allege wife exercised influence over husband or that husband reposed trust in wife’s skill and integrity. The majority held the civil conspiracy claims were inadequately pled as lacking any allegations of facts proving an agreement to commit fraud. The majority declined to consider res judicata issues based on its earlier adequacy analysis. On cross appeal the majority held that there was no contractual basis for attorney fees because this case alleged invalidity rather breach. The panel held there was no statutory basis for an award either at trail or on appeal because wife failed to demonstrate the case was meritless or brought in bad faith.

Robinson v Robinson

Husband appealed the parties’ property division, a contempt finding and other orders in the parties’ divorce action. The panel affirmed. It held that the contempt sanction imposed, 30 days in jail suspended, was not excessive and the amount ordered paid was the amount husband agreed to pay in the stipulated property division. It held that the contempt finding was based on husband’s failure to apply for refinancing at any point and for failure to make any payments on the judgment in favor of wife not for failure to “go back in time”. It held there was no error in the district court’s ruling that mistake and impossibility were not defenses to contempt here as they had been rejected in an earlier challenge to the stipulation and in any event were meritless. It held that fraud could not be argued here as a defense to contempt as the factual issue of fraud and the stipulation was decided in the earlier challenge to the stipulation and law of the case barred relitigation of the issue now and the same reasoning applied to the earlier implicit ruling the stipulation was fair and reasonable. It held the wrongful lien statute applied to lis pendis and husband’s pendis was properly released for failure include notice of claim or interest as required by statute. It held the attorney fee ward to wife was proper as fee awards were authorized in the stipulation and the litigation has been to enforce the decree not establish a court order. It ordered fees to wife for eth appeal. It affirmed denial of husband’s fee motion as the contempt proceeding saw four issue where both parties were in contempt, two not proven and two where husband only was in contempt and thus there was no abuse of discretion in finding husband had not prevailed.


Robinson v Jones, Waldo, Holbrook & McDonough, PC

Robinson appealed the denial of his motion for additional discovery and summary judgment to Jones Waldo. The panel affirmed. It held there was no abuse in discretion in denying the discovery motion as Robinson’s first attorney had several months to do discovery and didn’t, Robinson took several months to find a new attorney, did not move to extend deadlines and Jones Waldo waited until deadlines to designate experts passed to file its summary judgment motion and Robinson failed to explain what facts he would develop if discovery was allowed. The panel affirmed summary judgment holding an expert witness was necessary to establish the standard of care, Robinson failed to provide such expert testimony and there was no evidence of causation as Robinson failed to apply for refinance and thus could not have been harmed by the lack of language about what should happen if an application was denied.

Reynolds v Gentry Finance Corporation

Reynolds appealed summary judgment to gentry on her wrongful discharge claim. The panel affirmed in part, reversed in part and remanded. It held that a genuine issue of fact existed as to whether Reynolds’ at will status was modified by employment manuals which had inconspicuous disclaimers and conspicuous bold promises no one would be discharged if they reported misconduct and the parole evidence rule did not bar admission of the manuals as they were issued after Reynolds signed her contract. It affirmed judgment on a claim of public policy protection s Reynolds did not explain how the laws banning certain phone calls constituted Utah public policy. It also held that Gentry’s order to make calls barred by law created a genuine issue as to whether the stated grounds for termination were pretext and thus judgment was improperly granted.

Christensen IRA v American Heritage Title Agency, Inc.

Christensen added foreclosure claims to its suit against heritage. The district court dismissed those claims on statute of limitations grounds. The panel affirmed. It held the amended complaint did not relate back to the original complaint as it added parties and Christensen offered no reason to depart from the rule that adding parties means no relation back. It held tolling and estoppel did not apply as Christensen’s own records showed the notes secured by the real property in question weren’t paid and foreclosure defendants did not make any statements or do anything else which mislead Christensen or otherwise prevented him from bringing suit.

Atlas Van Lines, Inc. v The Dinosaur Museum

Atlas appealed summary judgment to Museum on Atlas’ claim for shipping costs. The panel affirmed holding Atlas was equitably estopped as it affirmatively disclaimed Museum’s liability in emails and Museum relied on those emails to allow certain items to be shipped to an exhibition in New Jersey.