White v White

Husband appealed the denial of his objection to the recommendation that proceeds from a land sale go to wife arguing the homestead exemption applies. The panel, with one judge adding a concurrence, affirmed. It held that under Utah Code 78B-5-503(2)(a), the homestead exemption is limited to human beings as the plain language and context of the statute demonstrate that “individual” is an individual human being, the limited liability company that owned the property was not an individual as it is a business entity and cannot meet the requirement of living together with people related by blood or marriage and husband’s claim of right under possession failed as possession alone is insufficient in Utah absent some legal right to title independent of possession. It held an argument about failure of wife to verify service of certain documents failed as husband did not argue any harm or request any relief. It denied husband’s motion for attorney fees as was appearing pro se and awarded fees to wife as she was awarded fees below for husband’s bad faith and prevailed on appeal. Judge Voros added a  concurrence arguing husband had no interest that could be executed on as he did not present evidence his tenancy at will had value and the charging order on his interest in the company was a claim against personal property to which the homestead exemption does not apply.

Sterling Fiduciaries, LLC et al. v JPMorgan Chace Bank NA

Sterling appealed summary judgment to Bank on declaratory judgment and foreclosure claims. The panel affirmed. It held that Sterling’s claim to be a bona fide purchaser of the real property in question and claims that a default judgment against Bank quieted title in the initial borrowers had both been rejected in an appeal in another case between Sterling and bank and thus was barred by res judicata; that any gaps in the chain of title is irrelevant because bank has physical possession of the original note and trust deed and in any event proved the chain by declaration; and a default judgment entered against another party was not within the certified final order under rule of civil procedure 54 and an argument about whether the purchase contract was executed was not preserved.

MacDonald v MacDonald

Husband appealed the denial of his petition to modify alimony. The panel affirmed. It held that under the pain language of Utah Ode 30-3-5(8)(i)(i), a change in circumstances is “not foreseeable’” when it was not reasonably anticipated at the time of divorce and that wife’s sale of property and investment of the proceeds was reasonably anticipated as landholders act to protect their interests by, among other things, selling property and investing the proceeds and the negotiations and decree here explicitly mentioned the treatment of expenses from the potential sale of the property.

State v Yazzie

Yazzie appealed his aggravated assault conviction. The panel affirmed. Applying plain error review, it held there was sufficient evidence including a statement by victim to the treating nurse she was hit by a hammer and nurse’s observation of bruises and marks consistent with being hit by a hammer and testimony by victim she was hit with a stick to sustain the conviction on the ground of using a dangerous weapon and there was sufficient evidence to sustain conviction on the theory of other means or force likely to cause serious bodily injury given the testimony of the beating which lasted 30 minutes and injuries from the beating were inflicted on victim’s head, face, back arms and genitals which the jury could find was sufficient force.

Carmichael and Moss v Higginson and Burdge

Higginson and Burdge appealed summary judgment to Carmichael and Moss arguing the promissory note at issue was a negotiable instrument. The panel affirmed holding the note here did not have the magic words “pay to the order of bearer” or anything similar and thus was not a negotiable instrument and Higginson and Burdge did not challenge the district court ruling that the note was valid and they breached the promise to pay. It remanded for calculation of appellate attorney fees.

Lindstrom v Custom Floor Covering, Inc.

Lindstrom appeal the district court rejection her wrongful lien claim. The panel affirmed. It first held the notice of appeal was timely as Lindstrom field a Rule of Civil procedure 59 motion and the motion plausible requested the district court alter the judgment and thus the 30-day clack was tolled. It affirmed as to the wrongful lien argument holding the Utah precedential standard for evaluating statutory wrongful liens, whether the lien claimant had a plausible good faith basis for claim the lien at the time of filing, applies to contractual or consensual liens also and here Custom had a plausible claim of good faith at the time it filed the lien as Lindstrom’s counsel conceded the point at oral argument, ex-husband signed the lien and his name was on the title of the property as of the time of the agreement and facts occurring  after the filing are irrelevant under the wrongful lien statute.

State v Gibson

Gibson appeal the restitution order portion of his sentence. The panela reversed holding that while Utah has a consolidated theft statute, proof of one violation of that statue by one means does not make the defendant liable for all potential violations of the statute, Gibson admitted to selling stolen goods but did not admit participation in the original theft, the victim here suffered no damages separate from those incurred because of the initial theft and thus there was no but for connection between Gibson’s actions and the restitution sought and mere speculation that thieves use others to facilitate sale of stolen goods is not proof that Gibson participated in the criminal acts which caused the damages claimed as restitution.

Rule v Rule

Wife appealed the alimony award component of the divorce decree. The panel reversed and remanded for fact-finding. It held that Utah law requires consideration of the parties living standard during marriage in order to provide representative expenses, makes sense in light of the continuing jurisdiction of the district court, it is difficult to see how to leave the parties as close to their marriage living standard without first establish what the living standard was and here the district curt erred by not first establishing the parties living standard and then equitably setting alimony which resulted in an undervaluing of wife’s legitimate expenses and the case was remanded to do the proper needs analysis based on the standard of living during the marriage.