State v Rettig

Rettig appealed arguing he should, be allowed to withdraw his guilty plea. The Court, with Durham concurring in result, affirmed. The majority  held that the withdrawal of guilty plea statute, Utah Code 77-13-6, was held constitutional in the 2016 Gailey case and held Rettig’s as applied challenge failed as 77-13-6 is a rule of preservation with a waiver penalty, such rules and consequences have never been held constitutional violations of the right to appeal, the rule of preservation with waiver consequence is found in many other parts of the civil and criminal codes and the legislature had power to create the post-conviction relief remedy for untimely withdrawal motions as it is a substantive act not a procedural one, but, expressed doubt about the legislatures authority to enact procedural provision in 13-6-(2)(c) while noting Rettig didn’t challenge those provisions. Durham argued that 13-6 is jurisdictional as it withdraws the power of the Court to hear claims about the withdrawal motions made after sentence, that eh majority overturned precedent on preservation rules without conducting proper analysis, that Utah courts’ jurisdiction is set out in the Utah constitution and statutes not preservation rules, that the right to appeal may be violated here as some ineffective assistance claims are shielded from review, but, argued Gailey should be followed to hold the claim as not ripe and that 13-6(2)(c) is substantive as withdrawing it would undermine the whole guilty pela scheme and thus is inextricably intertwined with eh procedural elements of 13-6.

State v Allgier

Allgier appealed the denial of his motion to withdraw his guilty pleas. The Court, with Durham concurring in result, dismissed. The majority held that the Gailey and Rettig decisions foreclosed all of Allgier’s constitutional arguments, Allgier’s motion was filed after sentence was announced, Utah Code 77-123-6 bared review here and the appeal must therefore be dismissed. Durham concurred in result for the reasons set out in her Rettig opinion.

Fire Insurance Exchange v Otlmanns

Oltmanns appealed the denial of his motion for bad faith attorney fees and costs. The Court, with Durham concurring in part and in judgment, affirmed. The majority held that Oltmanns argument that the term “jet ski” was unambiguous in the circumstances of the accident here was unavailing given the different treatment of the term in other states, the fact the term was surrounded by generic terms related to watercraft in the policy and the Court of Appels decision otherwise in an earlier phase of litigation was questionable at best. Thus, it was fairly debatable that Exchange was liable for litigation costs and there was no bad faith. The majority also rejected the concurrence’s arguments holding Oltmanns made his unambiguous meaning claim at the district court and the case was litigated as first party claim not a third party claim. Durham argued that this a third party claim case as Oltmanns was sued for injuring his brother in law while operating a watercraft, Exchange owed a fiduciary duty in this context and its actions were reasonable under the circumstances as it relied on outside counsel and had a right to seek a declaratory judgment and the fairly debatable standard is reserved in Utah for first party claims and thus does not apply here.

Utah Stream Access Coalition v Orange Street Development and State of Utah

Orange Street appealed the judgment ruling a stretch of the Weber River was navigable water and thus the pubic had recreational use rights. The court, with Durham dissenting in part, affirmed in part and vacated in part. The majority vacated the declaration that State held title to the riverbed as no party sought a quiet title remedy. It held that Utah Code 73-29-102 adopted the federal standard for deriving if waters are navigable as the state law definition has the same operative terms as the federal standard and the time of analysis is the time of Utah statehood and thus any error in using federal law by the district court was not plain. It held evidence of log drives, floating mining timber and delivery of logs to saw mills was sufficient to sustain the finding of navigability as that demonstrated the stretch of river was used for commerce on a regular basis. Durham argued the quiet title judgment was required here as state took title at the commencement of statehood and cannot avoid the duties of ownership by declining to file a quiet title action and that Coalition had standing as beneficiaries of the public trust over navigable waters and Orange Street’s denial of access to the stretch of river satisfies the injury requirement.

Baumann v The Kroger Company and Taylor

Bauman sought review of the Court of Appeals decision affirming summary judgment on her over prescription claim. The Court, with Lee and Durrant concurring in part and in judgment, affirmed on different grounds. The majority held that Baumann did not preserve her argument that her late expert disclosure should be evaluated under rule of civil procedure 16 instead of 26 and did not argue plain erro and thus the court of Appeals should not have reached the issue and waived her argument allowing late disclosure would have been harmless. The majority vacated the substitutive rule announced by the Court of Appeals that rule 26 requires a showing of good cause and lack of prejudice to avoid sanctions and affirmed on preservation alone as Kroger all but argued that ground and won below and Baumann failed to argue plain error. However, that Majority reached this issue and held either good case or lack of prejudice will suffice. Lee and Durrant concurred in part an in judgment arguing the vacating of the substantive decision of the Court of Appels improperly reaches an unpreserved issue.