In the mater of Water Rights within the discharge area of Utah Lake and the Jordan River in Utah, Salt Lake, Summit, Wasatch, Sanpete and Juab Counties in Utah (Utah state engineer et al. v Johnson)

Johnson appealed Summary judgment to Engineer on his rejection of Johnson’s amendment to a water claim for a subdivision. The panel affirmed. It held the additional claim to water was barred under Utah code 73-4-9 as Johnson’s predecessor in title did not include the water right in its original claim and failed to object when Engineer’s predecessor in office proposed a determination of rights which excluded the water rights in Johnson’s new claim. It held there was no due process violation here because Utah Supreme Court has held the notice and opportunity to object provisions in the general water rights adjudication statute meet the requirements of due process. It finally affirmed rejection of Johnson’s laches and failure to prosecute argeutmns given the unusual nature of general adjudication proceedings, Johnson’s opportunity to litigate, the lengthy negotiation between Johnson and Engineer and other circumstances plus the lack of prejudice.

State v Chapman

Chapman appealed the denial of his motion to have a codefendant’s restitution payments apply to the restitution amount in this case and the denial of Chapman’s motion to reconsider. The panel affirmed. It held law of the case did not apply here as the district court never ordered codefendant’s payment be applied to the restitution amount in this case, the district court repeatedly affirmed the joint and several liability portion of Chapman’s restitution order dn held the jury verdict here found Chapman liable for the loss in this case and the order only orders restitution in that amount.

State v Padilla

Padilla appealed his firearm discharge and obstruction of justice convictions. The panel affirmed. It held that Padilla’s argument that the district court erred in not giving a certain instruction on accomplice testimony was unpreserved as he failed to notify the district court through his argument that the instruction was mandatory and Padilla failed to develop a plain error argument on appeal. It held there was no ineffective assistance of counsel when Padilla’s attorney did not renew a motion for mistrial as there was no evidence the jury remained confused after a second curative instruction was given and there was a strategic explanation for the decision namely that the jury appeared to be sympathetic to Padilla or at least concerned about providing him a fair trial.

State v jones

Jones appealed his child rape conviction. The panel affirmed. It held the child rape statute, Utah code 76-5-402.1 when read in conjunction with Utah code 76-5-407(2)(b)(v), is not unconstitutionally overbroad because there is no constitutional right to touch a child’s genitals and Jones’s vagueness challenge fails as vaginal penetration is clearly within the scope of the statute.

State v Bryson

Bryson appealed his stalking conviction and an evidentiary ruling. The panel affirmed. It held there was no abuse of discretion in not redacting portions of letter sent to victim as mentions of certain scriptures, information about local ecclesiastical leaders and to two deceased relatives of victim all tended to show Bryson wrote the letter and sent it to victim in violation of a stalking injunction and the references did not result in unfair prejudice particularly as the district court raised the issues of anti-Mormon prejudice in voir dire and dismissed a juror who indicated he had such prejudice. It held the evidence as sufficient as victim’s testimony was not inherently improbable as the inconsistencies identified by Bryson have nothing to do with his mailing a letter to victim which he confessed to doing.

State v Gallegos

Gallegos appealed her assault conviction. The panel affirmed. It held the sufficiency of the evidence issue was preserved as Gallegos made a motion for directed verdict, both trial and appellate counsel argue there was no meeting of the minds to support conviction and the trial motion was supported by appropriate authority. It held evidence that Gallegos helped form a semicircle around victim, advanced in unison with others to coral victim near a wall, the Gallegos swung her arms during the melee and that security threw Gallegos from the fight supported an inference that Gallegos intended to aid the assault and this is sufficient to affirm. It rejected Gallegos’ prosecutorial misconduct argument holding the evidence supported characterizing the assault as a group or gang beating and references to sentencing at closing argument were not prejudicial as it was immediately recanted and the district court gave a corrective instruction and the evidence against Gallegos was strong.

Grimm v DxNA LLC

DxNA appealed the judgment in Grimm’s favor in his breach of employment contract claim and Grimm cross- appealed the denial of his motion for statutory penalties and attorney fees. It held that DxNA failed to marshal the evidence in support of the district court’s finding that the parties intended to enter into an employment contract and thus its challenge failed. It held DxNA’s challenge to the prejudgment interest portion of the judgment was unpreserved as it did not raise the issue even though the Utah Supreme Court precedent it relies upon on appeal was decided before judgment was entered and it had 28 days to raise eh issue after entry of judgment as well. It affirmed on cross appeal holding that the “demand” under Utah Code 34-27-1 and 34-28-5 which trigger the right for statutory penalties and attorney fee is a writing that insists all wages be paid immediately and Grimm’s email here did not mention wages and invited DxNA to negotiate.

State v Torres

Torres appealed his aggravated assault conviction arguing ineffective assistance of counsel. The panel affirmed. It held there was no deficient performance in trial counsel not moving for a directed verdict or otherwise challenging the sufficiency of eh evidence as the state introduced evidence that Torres struck victim several times in the legs with his car, struck her with the car with enough force to put victim on the hood of the car and threatened several times to kill her, that Torres apologized for actions, his sister saw part of the argument between Torres and victim and victim had bruises on her body consistent with her account of the attack. It held there was no prejudice in trial counsel’s failure to object to certain Facebook Messenger statements in which Torres admitted to abusing victim in the past as Torres did not dispute that he hit and otherwise abused victim in an apartment shortly before hitting her with a car, Utah Supreme Court precedent holds evidence of past similar acts of abuse is generally not prejudicial and none of the statements dealt with attacking victim with a car on previous occasions.

Cheek v Iron County, Iron County Attorney and Cedar City.

Cheek appealed dismissal of her unnecessary rigor claims. The panel affirmed in part and reversed in part. It reversed as to City as it concede dismissal was improper and there is no requirement that responsible agents of City be named as parties. It firmed as to Attorney as the federal district court in an earlier suit involving the same facts dismissed Cheek’s claims for failure to state a claim and this has claim preclusive effect under Utah Supreme Court precedent. It affirmed as to County as Cheek did not properly serve county under Rule of Civil Procedure 4 and under Utah Supreme Court precedent Cheek had 120 days after City and Attorney were dismissed to correct the inadequate service and did not do so.

Sumsion v Bay Harbor Farms, LC

Sumsion appealed summary judgment to Farms on his claim for attorney fees. The panel affirmed. It affirmed as to Sumsion’s contract claim holding he was not retained by Farms because the then applicable default rule for limited liability companies required approval by 2/3 of the profit interests to do action outside the normal scope of business, Sumsion inadequately briefed the issue of whether hiring an attorney to defend a worker’s compensation claim was outside the scope here and the rule was not altered by the members’ actions as Utah Code 48-2c-102(16) requires such changes in operating procedure to be done in writing, and even if the actions of a  company member could show assent to his hiring the record here demonstrates the company member who did to sign the representation agreement did not even know Sumison had been retained and thus could not assent by conduct. It held the unjust enrichment claim was time barred as it was field more than four years after it accrued and Sumsion’s counterarguments failed as the promissory note relied upon was neither signed by an agent of farms or entered into the record, that the prior litigation between the parties on an attorney lien did not started until after the limitations period ran and laches and waiver were not raised below. It held that the lien claim failed as Farms does not owe Sumsion anything and finally awarded Farms attorney fees on appeal as it prevailed below and on appeal.