D.T.O. v State

At the child welfare hearing in his case, D.T.O. moved to exclude evidence seized pursuant to a warrant, objected to an expert testifying without proper notice being given and challenged the chain of custody of a thumb drive. The juvenile court ruled the exclusionary rule did not apply, granted a continuance to allow proper notice and admitted the thumb drive after additional testimony as to how the thumb drive was recovered and stored. The court ruled D.T.O. neglected his children and exploited one child and placed all six children in state custody. The panel affirmed. It held the Utah constitutional exclusionary rule did not apply in child welfare cases as parents are not punished at such proceedings and any limited deterrence value was substantially outweighed by the need to protect children. It affirmed as to the expert holding the juvenile court properly ordered a modification under Juvenile Procedure Rule 20A and thus the testimony was properly allowed. It finally held that the additional testimony satisfied the chain of custody requirement as the actual location of recovery in this case did not matter.

Peterson v Armstrong

Peterson sought a civil stalking injunction in Fourth District Court. That court found she failed to prove stalking occurred and dismissed sua sponte. Peterson then field another civil stalking action in Fourth District Court which granted an injunction based on the same conduct First district found inadequate. The panel, 2-1, reversed and remanded. The majority held that claim preclusion applies in the civil stalking setting relying on the general principles of preclusion and the cases law of other states. It held preclusion applied here as the facts were same, the parties were the same and the dismissal was a final order on the merits as the first District applied the law to facts alleged and rendered a final decision. The case was remanded for determination of whether to award attorney fees to Armstrong. The dissent argued that Armstrong failed to prove the First District decision was a final judgment given the form order included a statement that Peterson could seek other legal remedies for the conduct. Given that statement is ambiguous, Armstrong failed to prove the order was final more likely than not. The dissenting judge added his concern that pro se stalking petitioners will now be forced to undergo additional events of stalking before filing a second petition.

Rippey v State

Rippey filed a petition for post-conviction relief. The district court dismissed his petition. The panel affirmed. It held the procedural argument raised by Rippey’s attorney was waived as the argument was not made below and that there was no ineffective assistance of counsel as it would have been irrational for Rippey to go to trial as he had confessed to two people that he molested a young girl and his plea resulted in three other felonies being dismissed.

State v Lewis

At Lewis’ trial for child sex abuse, his attorney failed to object to a jury instruction which failed to limit the phrase “indecent liberties” to its legal meaning. After his conviction as to one child and acquittal as to another, Lewis moved for a new trial based on the instruction error. The district court denied his motion. The panel reversed his conviction and remanded for a new trial. It held the attorney’s performance was deficient as there was no possible tactical advantage to leaving the jury to determine under its own sense of morality whether telling a girl she is pretty, asking her to show her stomach and then poking her stomach was indecent. The panel held this deficient performance was prejudicial as the improper instruction effectively allowed the jury to disbelieve the girl as it did her sister yet still convict based on its view of what is indecent. As a properly instructed jury could convict Lewis based on his own testimony, the case was remanded for new trial.

Callister v Snowbird Corporation

The district court denied Callister’s motion to extend time to designate an expert and granted summary judgment to Snowbird for lack of expert testimony on any duty owed Callister in the operation of a ski lift. The panel affirmed. It held that under Utah tort law, when the scope of a duty is outside the knowledge of an average jury, expert testimony is required to prevent speculation by the jury and the operation of ski lift is outside the knowledge of an average jury. As Callister failed to file any expert report, judgment was proper. The panel held the belated invocation of res ipsa loquitur did not change the outcome as Callister only raised it at oral argument on the summary judgment motion and thus failed to preserve the issue for review. The panel finally held there was no abuse of discretion in not extending the time to designate an expert as the case had dragged on for years and had twice nearly been dismissed for failure to prosecute.

Nebeker v Summit County

Nebeker obtained judgment against County based on the sheriff’s failure to include a required legal description in a prejudgment writ of attachment, but, his damages were capped at the property damages limit in the claims absent government entity statute. Both parties appealed. The panel issued an opinion in June, 2014 affirming. It issued a modified opinion today. Both opinions held that Nebeker’s claim was timely as the last act necessary for the claim to ripen was obtaining a judgment in the underlying probate case which happened less than one year prior to notice to County. Further, the panel held that because district courts have jurisdiction to hear probate cases, any judgment in the probate case would only be voidable and thus not subject to collateral attack in this proceeding. The panel held that it would not do county’s job of analyzing the case law as to duty and breach and thus affirmed. It held the sheriff’s negligence was proximate cause of the damages here as sale of property to third parties is the very foreseeable harm the attachment statute seeks to prevent. As to damages, the panel held county failed to overcome the district court’s findings of fact as to Nebeker’s loss and Nebeker’s claim was for property damage under Utah Code 63G-7-102(8) as attachment is akin to a judgment lien which is clearly property. On rehearing, the panel struck a footnote which discussed County’s position on what pro rata share of estate property Nebeker would have been entitled to as County did not properly raise the issue and the proper course in those circumstances is to decline o consider the issue.

J.L.C. v K.A.A.

J.L.C. filed a paternity suit claiming to be the father of K.A.A. child. K.A.A. and her husband reconciled and she moved to dismiss for lack of standing. The district court granted the motion and the panel affirmed. It held an earlier decided case held the governing statute, Utah Code 78B-15-607(1), bars claims of paternity to a married woman’s child in order to effectuate the legislative intent to encourage intact families. Thus, J.L.C.’s claim was barred.

Rand v KOA Campgrounds

Rand brought personal injury and conversion claims against KOA. The district court granted summary judgment to KOA and the panel affirmed. It held Rand failed to prove her claim that an agent of KOA dropped a garbage can on her and that KOA reasonably believed Rand abandoned her mobile home as Rand gave them no notice as to how long she would be gone or when payment of rent would be made.