Pulham v Kirsling

Kirsling appealed the amended decree filed in this divorce case and the denial of his motion to amend the decree. The panel affirmed. It held that the panel only had jurisdiction over the three paragraphs of the decree identified in the notice of appeal and thus declined to consider arguments pertaining to child custody. It held any error in determining Pulham’s income favored Kirsling and Kirsling did not preserve the issue of imputed income through a new trial motion or otherwise. It rejected Kirsling’s argument about past due child support as he did not challenge the district court’s rationale. It affirmed on the modification petition as the district court considered it on the merits, concluded Kirsling’s move closer to the parties’ child was done for tactical advantage and is lily transitory given Kirsling’s history of frequent moves and also held the argument concerning the change of circumstances standard was unpreserved dn indeed any error was likely invited. The panel finally denied both parties’ motions for attorney fees.

State v Gonzales-Bejarano

Gonzales-Bejarano appealed his seven convictions arguing ineffective assistance of counsel. The panel affirmed in part and vacated in part. It held the concurrent representation of Gonzales-Bejarano and his fiancée was not prejudicial as counsel pointed to fiancée as the person who actually possessed the identification documents in question and did not try to pin responsibility for the drugs found in the car in question because Gonzales-Bejarano admitted they were his. It held that there was no prejudice as to hearsay testimony from a police officer that the owners of the identification documents did not give Gonzales-Bejarano permission to possess the documents as no evidence was presented that the owners were unavailable to testify or could have been impeached and there is tactical reason to not force the state to call the owners namely the testimony from the owners would have been more powerful than the testimony of the officer. It vacated two convictions for possessing debit cards as the state did not present evidence that Gonzales -Bejarano had the intent to use them which is an element of the possession of a financial transaction card offense.

Newton v Stoneridge Apartments et al.

Newton appealed the disqualification of their attorney and his law firm. The panel reversed and remanded. It held that traditional standing is not required to bring a disqualification motion and thus Stoneridge could assist the district court in employing its inherent power to correct violations of the ethics rules. It held the district court erred in finding disqualification was required under Rule of Professional Responsibility 1.9(b) as it made no explanation for its finding that an earlier custody case involving a defendant in this case and this case were substantially related and further there was no factual nexus between the two cases. It held that the district court also erred in not reevaluating disqualification once the defendant in question was dismissed from the case.

State v Matheson

Matheson appealed the denial of her motion to suppress. The panel affirmed. It held the supporting affidavit for the warrant which authorized the search of Matheson’s person established probable cause based on confidential informant tips Matheson was dealing drugs, drug paraphernalia in the grange of a house connected to Matheson, the unusual traffic patterns and hours of people visiting the house plus drugs were found in cars shortly after leaving the house. It held the warrant personally identified Matheson and authorized search at the house or anywhere else officers could serve the warrant and thus authorized the search at eh police station after Matheson was pulled over by detectives after leaving the house. It held seizure of Matheson’s truck was authorized by the warrant as the warrant authorized seizure of vehicles present when the warrant was executed and the truck was present when Matheson was seized. It finally held that a warrant to search the truck was properly obtained based on a drug dog alert obtained after the truck was seized pursuant to the first warrant.

Deleeuw v Nationstar Mortgage, LLC

Deleeuw appealed the denial of his motion to dismiss Nationstar’s foreclosure action. The panel affirmed holding Utah’ version the Uniform Commercial Code’s limitation period for accelerated notes payable controls here as its limitations period is more specific than the general limitations period for written contracts, this conclusion is consistent with recent decision of the federal district court for Utah and the fact the note was secured by real property did not transform the note payable into a real estate transaction.

State v Parkinson

Parkinson appealed his assault on police officer and failure to stop convictions arguing ineffective assistance of counsel. The panel affirmed holding there was no prejudice form the faulty jury instructions as to the mens rea elements of knowing he was assaulting or failing to stop for police officers  because Parkinson pulled over when emergency lights were activated, turned over his license, registration and insurance information and Parkinson testified he learned one sergeant’s name and that the men involved were Murray police officers and had been in touch with Parkinson’s parole officer and Parkinson fled the scene , stayed away from his home for four days and made no effort to report the incident if he truly believed imposters had pulled him over.

May v Bigelow et al.

May appealed summary judgment to the Utah Board of Pardons and Parole on his writ for extraordinary relief. The panel affirmed holding Board had no duty to obtain a toxicology report before revoking parole as May admitted to using heroin on several occasions, his ineffective assistance claim and two statutory claims about setting his rehearing date were unpreserved and review of the rehearing date was unavailable as the process was sufficient given the rehearing date is within his original sentence, May’s parole had  been revoked four previous times and he was given a copy of the material relied upon by the Board and he attend the hearing with counsel.