Cook v Department of Commerce

Cook appealed the revocation of nursing license, license to dispense medicines and a fine levied for incorrectly stating she was qualified to review her license when she had in fact allowed her national certification to lapse. The panel affirmed in part and reversed in part. It held that submitting false information in a license renewal violates Utah Code 58-1-501(2)(h), that the common meaning of false is statement not in accord with reality and Cook’s certification she was eligible for renewal was not in accord with reality because she had allowed her required national certification to lapse. The panel reviewed the sanctions for reasonableness and held that the fine and the posting of the disciplinary findings on databases were reasonable as the fine was within the limits set by the legislature and the reporting was mandated by federal law. However, the panel held that revoking the licenses here was beyond the bounds of reason as Department has revoked licenses in the past for violations of 501(2)(h) only for egregious conduct like molesting clients while imposing lesser penalties for outright dishonesty. As Cook’s conduct is more like dishonest conduct, the sanction should be similar and just as past sanctioned nurses should have been given time to correct errors and have the revocations suspended. The case was remanded to craft a remedy consistent with the opinion.

Fullmer v Fullmer

Husband appealed the child custody provision in the divorce decree and argued the district court should have recused itself. The panel affirmed. It held that while the district court should not have stated personal offense at a motion in liminie filed by husband, seen in context, the comments on wide’s expert were part of the rationale for denying the motion and did not reveal any bias in favor of the expert. As there was no duty to recuse, there can be no plain error in failing to recuse sua sponte. The panel also held changing primary physical custody from husband under the temporary order to wife in the permanent order was appropriate given the district court’s findings about the parties’ employment situations, husband’s emotional challenges and the children’s need for more time with wife.

Evolocity, Inc. v Department of Workforce Services

Evolocity appealed Department’s determination that claimant was an employee and not an independent contractor. The panel affirmed. It held that the determination was supported by substantial evidence as claimant’s tools and equipment (software and a headset), claimant worked exclusively for Evolocity, claimant did not advertise her services and could not realize a profit or loss as she was paid a set salary and not exposed to risk of loss. The panel also held Department’s total employment situation approach to determining if a claimant is an employee or independent contractor did not make the statute or regulations unconstitutionally vague.

Evolocity, Inc. v Department of Workforce Services 2

Evolocity appealed Department’s determination that claimant was discharged without good cause. The panel affirmed holding the determination was supported by substantial evidence as Evolocity gave a notice of separation which did not include any performance related reasoning.

Andersen v Department of Corrections

Andersen and other officers sued Department arguing they were entitled to a three step differential in pay throughout their careers under a modified agreement between Department and transportation unit officers. The district court granted summary judgment to Department and the panel affirmed. It held that the modified agreement cannot be read to require perpetual three step differential as the language only guarantees that officers who work for three years in the transportation unit will not lose pay already earned when they leave the unit and the officers in the unit will be treated equally with other officers all of which is consistent with the Department wide pay structure applicable to all officers.

Evans v Nielson

Evans appealed the district court’s confirmation of an arbitration award arguing that the award was irrational and in manifest disregard of law. The panel affirmed. Under the narrow scope of review in arbitration cases, the panel held the arbitrator had a rational basis to allow set off and not apply the uniform Commercial Code as the parties agreed in the promissory note that Neilson could do a set off and, leaving for another day whether manifest disregard is a ground recognized by Utah law, none occurred here as the correct law was applied and the panel is not allowed to review whether the application was correct or erroneous. The panel also held the issue of whether Evans was in default ion the note was within the scope of the arbitration clause and there was no refusal to her relevant evidence on this issue as the arbitrator in fact considered the facts Evans wanted considered and found them inadequate to change the finding of default. The panel finally declined to award attorney fees to Nielson as the district court had denied them below.

In the Interests of T.H., T.H., and T.H. (D.H. v State)

D.H. appealed the termination of services to him and the award of custody of the three children to their mother. The panel affirmed. It held closing the case was supported by substantial evidence as the environmental reason the case was initiated was resolved and mother was going to continue to receive services through a private party. It further held that custody was properly given to mother as she was willing to facilitate visitation by D.H. and D.H. had violated a protective order repeatedly and will not be allowed to contact mother until the order expires.

Begum v Begum

Wife appealed the modified divorcee decree. The panel affirmed. It first held there was no error for the family court commissioner to make a recommendation on husband’s Rule 60 motion as district court action was anticipated and took place. The panel held that wife failed to prove error in the district court allowing husband to submit additional evidence as none of the evidence had any effect whatever on the key findings of cohabitation by wife and that only one child still remained in her care. The panel held that there was no error in the district court signing the amended decree at the status conference particularly as wife made no effort to submit evidence of her own as invited by the court. Finally, the panel remanded for an award of attorney fees to husband.