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+"{\"id\": \"10327932\", \"name\": \"CITY OF SOUTH SALT LAKE, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton, Petitioners, v. SALT LAKE COUNTY, Respondent; MIDVALE CITY, a municipal corporation, City of West Jordan, a municipal corporation, and Liane Stillman, Petitioners and Appellees, v. SALT LAKE COUNTY, a body politic, Sherrie Swensen, Salt Lake County Clerk, and Douglas R. Short, Salt Lake County Attorney, Respondents and Appellees; Sherrie SWENSEN, Salt Lake County Clerk, and Salt Lake County, a body politic, Petitioners, v. The Honorable J. Dennis FREDERICK of the Third District Court in his official capacity; City of West Jordan, a municipal corporation; Midvale City, a municipal corporation; and Liane Stillman, an individual, Respondents\", \"name_abbreviation\": \"City of South Salt Lake v. Salt Lake County\", \"decision_date\": \"1996-10-18\", \"docket_number\": \"Nos. 960325, 960330, 960391, 960392 and 960331\", \"first_page\": \"954\", \"last_page\": \"960\", \"citations\": \"925 P.2d 954\", \"volume\": \"925\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:28:56.318043+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOWE, DURHAM, and RUSSON, JJ., concur in Chief Justice ZIMMERMAN\\u2019S opinion.\", \"parties\": \"CITY OF SOUTH SALT LAKE, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton, Petitioners, v. SALT LAKE COUNTY, Respondent. MIDVALE CITY, a municipal corporation, City of West Jordan, a municipal corporation, and Liane Stillman, Petitioners and Appellees, v. SALT LAKE COUNTY, a body politic, Sherrie Swensen, Salt Lake County Clerk, and Douglas R. Short, Salt Lake County Attorney, Respondents and Appellees. Sherrie SWENSEN, Salt Lake County Clerk, and Salt Lake County, a body politic, Petitioners, v. The Honorable J. Dennis FREDERICK of the Third District Court in his official capacity; City of West Jordan, a municipal corporation; Midvale City, a municipal corporation; and Liane Stillman, an individual, Respondents.\", \"head_matter\": \"CITY OF SOUTH SALT LAKE, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton, Petitioners, v. SALT LAKE COUNTY, Respondent. MIDVALE CITY, a municipal corporation, City of West Jordan, a municipal corporation, and Liane Stillman, Petitioners and Appellees, v. SALT LAKE COUNTY, a body politic, Sherrie Swensen, Salt Lake County Clerk, and Douglas R. Short, Salt Lake County Attorney, Respondents and Appellees. Sherrie SWENSEN, Salt Lake County Clerk, and Salt Lake County, a body politic, Petitioners, v. The Honorable J. Dennis FREDERICK of the Third District Court in his official capacity; City of West Jordan, a municipal corporation; Midvale City, a municipal corporation; and Liane Stillman, an individual, Respondents.\\nNos. 960325, 960330, 960391, 960392 and 960331.\\nSupreme Court of Utah.\\nOct. 18, 1996.\\nRehearing Denied Nov. 11, 1996.\\nKevin R. Watkins, South Salt Lake, and David L. Church, Salt Lake City, for South Salt Lake, City of Draper, Sandy City, City of Riverton, Murray City, Town of Alta, Sharon Brinton, and Linda Norton.\\nDouglas R. Short, Gavin J. Anderson, Kent S. Lewis, Dahnelle Burton-Lee, Patrick F. Holden, Salt Lake City, for Salt Lake County parties.\\nJody K. Burnett, George A. Hunt, Salt Lake City, and Martin Pezely, Midvale, and Greg Curtis, West Jordan, for Midvale City and City of West Jordan.\\nKent B. Linebaugh, Jeffrey Devashrayee, Salt Lake City, for Liane Stillman.\\nEarl D. Tanner, Sr., Earl D. Tanner, Jr., Anthony L. Rampton, Robert A. Garda, Jr., E. Craig Smay, Salt Lake City, for numerous intervenors.\", \"word_count\": \"3584\", \"char_count\": \"22013\", \"text\": \"ZIMMERMAN, Chief Justice:\\nThese matters involve an appeal from a remand to the trial court of a question of statutory interpretation initially brought before this court by a combination of interlocutory appeals and extraordinary writs filed in early August of this year seeking review of a decision of the trial court staying township elections scheduled for August 6, 1996. Although the parties are varied, for purposes of discussion the cases may be lumped into two categories: (i) the Holladay and Kearns Township election litigation, involving the City of West Jordan and those aligned with it, i.e., those with pending annexation or incorporation petitions in the proposed Holla-day and Kearns Township elections; and Salt Lake County and those aligned with it; and (ii) the other eight township elections, involving the City of South Salt Lake and those aligned with it; and Salt Lake County. One issue was common to all ten township elections: as to eight of them, it was the only issue. That question is the class of persons from which a majority must be drawn for the township proposal to carry. Does section 17-27a-104(2) of the Utah Code, enacted in 1996, require a majority of all the registered voters within the area proposed for township status or only a majority of the registered voters in the area who actually voted? In the Holladay Township election, the Kearns Township election, and the litigation pertaining to them, other questions were raised regarding the propriety of Salt Lake County's failure to deal with the following issues prior to the township elections: (i) Midvale City's proposed annexation of a part of the proposed Holladay Township; (ii) a petition to incorporate the city of \\\"The Cottonwoods\\\" in a part of the proposed Holladay Township; and (iii) the City of West Jordan's proposed annexation of a part of the proposed Kearns Township.\\nIn an order issued on August 6, this court granted an interlocutory appeal; treated a petition for extraordinary relief as a petition for declaratory judgment; stayed the trial court's order blocking the August 6, 1996, eleetions; and directed that the elections proceed in the ten Salt Lake County township areas which were the subject of the legal actions, but that the ballots pertaining to all ten elections be sealed, stored, and not counted until further order of this court. The interlocutory appeal and the petition for extraordinary relief were both remanded to the trial court for further proceedings and a determination of all claims. We directed that these cases be consolidated before a single judge. We also directed that the one question common to all ten township elections be decided within thirty days so that the matter could be brought back to this court for resolution.\\nThe elections were held and the ballots sealed as directed by this court. On remand, the district court concluded that the language of section 17-27a-104(2) was ambiguous and that it should be interpreted to require a simple majority of those actually voting to form a township. The City of West Jordan, Midvale City, and those representing the proposed city of The Cottonwoods filed petitions for interlocutory appeal in this court; the Holladay Township petitioners filed a motion to lift stay; the Emigration Township Committee filed a motion to amend interim order; the Magna, Granite, White City, and Emigration Community Councils filed a motion to open and count ballots; and Salt Lake County filed a motion to amend order. Because the district court's ruling applied to all ten township elections, interlocutory appeals were taken in the cases of the proposed Holladay Township and the proposed Kearns Township, where other issues still remain before the trial court. Consequently, we have before us a direct appeal in those cases where no other issues remain and an interlocutory appeal in the cases of the proposed Kearns and Holladay Townships. This court then directed that the question of the appropriate interpretation of 17-27a-104(2) be briefed on an expedited basis and heard as quickly as possible. The matter was argued on October 1,1996.\\nWe now hold that section 17-27a-104(2) is not ambiguous and requires that a majority of all registered voters within the area proposed for township status must vote in favor of the proposal. A simple majority of those casting ballots is insufficient under the statute. Accordingly, we reverse the district court and remand for further proceedings the matters involving the proposed annexations by Midvale and West Jordan and the proposed Cottonwood incorporation. Our order of August 6, 1996, is modified to direct that the county clerk proceed to count the ballots in the township elections concerning which no legal issues remain before the district court. We further direct the district court to consider whether it wishes to permit the ballots to be counted in the two township elections which still remain before it, to wit, those involving the Midvale and West Jordan annexations and the proposed Cottonwood incorporation. If the trial court concludes that those ballots should be counted before this litigation is entirely resolved, it may so order. Our order of August 6 will remain in effect as to the Holladay and Kearns township elections until the matter is addressed by the district court.\\n[1,2] Moving to the merits: The district court granted the County's motion for summary judgment. In reviewing a grant of summary judgment, '\\\"we accord no deference to the trial court's resolution of the legal issues presented.' \\\" Harline v. Barker, 912 P.2d 433, 438 (Utah 1996) (quoting K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994)). The proper interpretation of section 17-27a-104(2) is a matter of law to be resolved by this court. State v. Pena, 869 P.2d 932, 936 (Utah 1994); Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). That statute provides that \\\"[i]f a majority of the registered voters within the area proposed for township status vote in favor of the proposal, the area shall immediately acquire township status as provided in this part.\\\" The City of West Jordan contends that the statute is clear: It requires affirmative votes of a majority of all registered voters within the area proposed for township status.\\nThe County contends that these words should not be read literally because in virtually all situations, elections are determined by a majority of the votes actually cast, not by a majority of those entitled to vote. The County argues that we should therefore interpret the statute as though it read that \\\"[i]f a majority of the registered voters within the area proposed for township status [who actually cast ballots ] vote in favor of the proposal, the area shall immediately acquire township status as provided in this part.\\\" (Proposed additional language bracketed.) In support of its arguments, the County cites some expressions of sentiment by selected legislators made during the final part of the 1996 session, when this provision was first proposed and quickly enacted. The County also argues that its interpretation accords with our decision in Nowers v. Oakden, 110 Utah 25, 169 P.2d 108 (1946), where we interpreted a statute requiring the passage of a county fence ordinance by a \\\"majority of all the legal voters\\\" in the county to include only a majority of those actually voting. For the reasons described below, we reject both arguments.\\nThe applicable principles of statutory construction are clear. 'We look first to the plain language of the statute to discern the legislative intent.... 'Only when we find ambiguity in the statute's plain language need we seek guidance from the legislative history and relevant policy consideration.'\\\" Gohler v. Wood, 919 P.2d 561, 562-63 (Utah 1996) (quoting World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994)); accord Schurtz, 814 P.2d at 1112. A review of the plain language of the statute in question reveals no ambiguity. The words \\\"a majority of registered voters within the area proposed for township status\\\" are clear and unambiguous. Black's Law Dictionary defines \\\"registered voters\\\" as \\\"[p]ersons whose names are placed upon the registration books provided by law as the record or memorial of the duly qualified voters of the state or county.\\\" Black's Law Dictionary 1284 (6th ed.1990). The term \\\"registered voters\\\" is not of uncertain meaning and is used in many of our statutes to define a class of persons. See, e.g., Utah Code Ann. \\u00a7 10-2-109, 10-3-1203, 17A-2-409, 17A-2-1166, 20A-9-404. Because the statute is unambiguous on its face, no inquiry into the legislative history or policy concerns underlying the statute is necessary.\\nThe County contends that applying the statute as written would create an absurd result. Specifically, it contends that because of deaths and moves on any given day, it may be impossible to be absolutely certain whether the registration rolls actually reflect the names of those entitled to vote. Therefore, it argues that we must conclude that there is ambiguity here and reach a construction that the County would prefer, to wit, a simple majority of those casting ballots. We find nothing inherently absurd in the result dictated by the plain language of the statute. \\\"Registered voters\\\" means those registered, not those eligible to register. The term fixes with reasonable certainty the membership of the class. Any inadequacy in county record keeping cannot be used to justify rejecting the legislature's choice of the class of persons to be counted.\\nThere are other situations in the context of the creation or modification of boundaries of local government units where the outcome is, at some stages, determined by reference to a majority of registered voters, as opposed to those actually voting. For example, the statute providing for the creation of a town requires a petition signed by a majority of the registered voters of an unincorporated area proposed for incorporation as a town. Utah Code Ann. \\u00a7 10-2-109. The difficulties the County raises are equally applicable and equally irrelevant to the validity of that statute and to this. We therefore find nothing inherently infeasible in the legislature's choice of all registered voters as the class of persons from among whom a majority must be garnered to create a township.\\nAnd there are other instances in statute where the creation or enlargement of local government units depends upon the favorable opinions of a class of persons other than a simple majority of those casting ballots. For example, House Bill 120, which passed during the 1996 session and which contained not only the language at issue in this ease but also provisions amending other portions of the incorporation and annexation statutes, contains a provision adding section 10-2-102.3 to the Code. This section pertains to the exclusion of certain property from an area proposed for annexation. Exclusion can be obtained by a petition containing \\\"the legal signatures of over 50% of the owners of real property and the owners of at least 1/3 of the value of real property, as shown on the last assessment rolls, in each voting precinct within the area to be excluded.\\\" Plainly, the legislature has by this section permitted a group of property owners which is likely to be far smaller than a majority of the registered voters in the area in question to determine the outcome of a selection of the mode of government affecting that area.\\nAccordingly, it is equally appropriate that we defer to the legislature's choice of language in section 17-27a-104(2), defining the class from which a majority of votes must be drawn to create a township. The legislature is entitled to a range of choices as to how issues concerning the formation or expansion of local government units are to be decided. There is no rule that a majority of those voting wins. It is not our place to conclude that because the choice of all registered voters as the relevant class in section 17-27a-104(2) is somewhat unusual, the legislature must have made a mistake. Moreover, easily presuming a mistake, as the County does, seems particularly inappropriate when the legislature's creation of this new form of local government unit \\u2014 the township \\u2014 was done in the context of what we ean judicially notice was intense debate and discussion, within the legislature and without, over the relative roles of citizens in unincorporated areas, the county government, and the local municipalities, and their relative orders of priority in local government matters. This debate ensued after our decision in Nelson v. Salt Lake County, 905 P.2d 872 (Utah 1995), where we declared inoperative certain provisions of section 10-2-102.8, which pertained to the incorporation of new municipalities. Id. at 876. In light of this intense political debate, it would be presumptuous of us to assume that the resulting legislation did not reflect the intention of the legislature.\\nThe County relies heavily on this court's decision in Nowers v. Oakden, 110 Utah 25, 169 P.2d 108 (1946), where we interpreted a county ordinance that required a vote of \\\"the majority of all the legal voters\\\" in the county before a local fence law could be enacted. In that case, we held valid a county election, the results of which established a fence law by a majority of those voting, despite the plaintiffs contention that the statute providing for such elections required approval by a majority of all voters in the county qualified to register to vote. Id. 169 P.2d at 114, 118. The County argues that our opinion in that case requires us to hold today that the term \\\"registered voters\\\" means \\\"registered voters voting in the election,\\\" just as we held the term \\\"legal voters\\\" to mean \\\"legal voters voting in the election\\\" in Nowers. We conclude that Nowers is distinguishable from the present case.\\nThe term \\\"legal voters\\\" was one capable of multiple interpretations. The plaintiff in Nowers contended that the county was required to hold a special-election registration so that all voters who met the requirements for registration (\\\"legal voters\\\") could vote in the special election. Id. at 117. The county had simply used the voter registration lists in effect at the time of the last general election. Id. The court resolved this ambiguity in favor of the county, determining that \\\"[n]o showing was made in the court below that non-registered legal voters in sufficient number to change the result, or at all, were deprived of the right to vote at the election in question.\\\" Id. at 118. Thus, the court in Nowers was presented with a statutory ambiguity which is not present here. The statute here uses the term \\\"registered voters,\\\" a term that is common and of clear meaning.\\nThe remaining issue before the court is raised by the City of West Jordan. It argues that if we hold for the County, we must reach the question of whether the notice of election issued by the County misled voters. Specifically, it is argued that the notice incorporated by reference section 17-27a-104(2) and thereby informed potential voters that unless a majority of all registered voters approved the petition, it would fail. This may have induced some voters to stay home and thereby distort the results of the actual balloting. Because we resolve this case against the County's claims, we find no defects in the notice of election. It properly referred to the statute which required a majority of all registered voters to approve the petition. This notice was not defective.\\nIn light of the foregoing, we rescind that portion of our August 6, 1996, order to the extent that it forbade the counting of the ballots in those township elections where the only issue in litigation was the class of persons from whom a majority of votes needed to be obtained. However, as to the cases involving the Holladay and Kearns township elections, which raise questions regarding the proper processing of the annexation and incorporation petitions pending at the time the township elections were held, cases numbered 960325, 960330, and 960331, we leave our order of August 6, 1996, in place. All eases before us are remanded to the Third District Court. The judge of that court to whom these matters are assigned may, following consideration of the question whether the stay should remain in effect for the duration of that litigation, modify or lift the provisions of our August 6, 1996, order as it applies to the Holladay and Kearns township elections.\\nWe wish to take this opportunity to thank the district court and the parties and their counsel for the speedy and cooperative manner in which this litigation has proceeded. Although feelings plainly ran high, all behaved with courtesy and acted with celerity.\\nHOWE, DURHAM, and RUSSON, JJ., concur in Chief Justice ZIMMERMAN'S opinion.\\nSTEWART, Associate C.J., concurs in the result.\\n. The parties to this case, all consolidated under Supreme Court No. 960325, are as follows:\\nPre-election cases\\nNo. 960325, Petition for Extraordinary Relief: City of South Salt Lake, Town of Alta, City of Draper, Midvale City, Murray City, City of Riverton, Sandy City, West Jordan City, Sharon Brinton, and Linda Norton v. Salt Lake County, with intervenors Delpha A. Baird, Kent H. Saxey, and Janet Geyser for Holladay Township; White City, for North White City Township and South White City Township; Kearns Township Committee; and various candidates for the Kearns Township Planning and Zoning Board.\\nNo. 960330, Petition for Interlocutory Appeal: City of West Jordan, Midvale City, and Liane Stillman v. Sherrie Swensen, Salt Lake County Clerk, Douglas R. Short, Salt Lake County Attorney, and Salt Lake County, with interve-nor Kearns Township Committee.\\nNo. 960331, Petition for Extraordinary Relief: Sherrie Swensen, Salt Lake County Clerk, and Salt Lake County v. The Honorable Judge J. Dennis Frederick, in his official capacity, City of West Jordan, Midvale City, and Liane Still-man.\\nPost-election cases\\nNo. 960391, Petition for Interlocutory Appeal: Liane Stillman v. Salt Lake County; Sherrie Swensen, Salt Lake Counly Clerk; and Douglas R. Short, Salt Lake County Attorney.\\nNo. 960392, Petition for Interlocutory Appeal: City of West Jordan and Midvale City v. Sherrie Swensen, Salt Lake County Clerk, and Salt Lake County.\\nFurther, after the election, the parties filed various motions, including Holladay Township's motion to lift stay; Emigration Township's motion to amend interim order; a motion to open and count ballots or expedite appeal filed by the community councils of Magna, Granite, White City, and Emigration; and Salt Lake County's motion to amend order.\\n. This category includes Midvale City and Liane Stillman, sponsor of the proposed city \\\"The Cottonwoods.\\\"\\n. This category includes the various township committees and township sponsors who have intervened in these matters; Kearns Township Committee, Candidates for Kearns Township Planning and Zoning Board, Emigration Township Committee, Emigration Community Council, Holladay Township Petitioners, Magna Community Council, Granite Community Council, and White City Community Council.\\n. This category includes the proposed townships in Copperton, Emigration Canyon, Granite, South Granite, Magna, Southwestern, North White City, and South White City.\\n. This section was misnumbered in the enrolled copy of HB 120 but was correctly designated as Utah Code Ann. \\u00a7 17-27a-104(2) in the 1996 Supplement to the Utah Code. Compare Local Government Changes, ch. 308, \\u00a7 11, 1996 Utah Laws_with Utah Code Ann. \\u00a7 17-27a-104(2) (Supp.1996).\\n. See Local Government Changes, ch. 308, \\u00a7 3, 1996 Utah Laws_This legislation was enacted in response to our 1995 decision in Nelson v. Salt Lake County, 905 P.2d 872 (Utah 1995), in which we declared certain provisions of section 10-2-102.8 inoperable. Id. at 876.\\n. We also note that in Nowers, the issue before the court was only the mechanism for approving a fencing ordinance, not the creation of a new form of local government. Moreover, in Nowers we were asked to set aside an election that had already been held so that more voters could be qualified in an attempt to change the result. In the present case, the balloting has occurred but no one is aware of the results. Therefore, we are not being asked to set aside an election by the losers.\"}"

utah/10356757.json

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+"{\"id\": \"10356757\", \"name\": \"STATE of Utah, Plaintiff and Appellee, v. Pierre ADAMS, Defendant and Appellant\", \"name_abbreviation\": \"State v. Adams\", \"decision_date\": \"1992-04-09\", \"docket_number\": \"No. 910437-CA\", \"first_page\": \"310\", \"last_page\": \"314\", \"citations\": \"830 P.2d 310\", \"volume\": \"830\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:10:35.798162+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BENCH, GREENWOOD and ORME, JJ.\", \"parties\": \"STATE of Utah, Plaintiff and Appellee, v. Pierre ADAMS, Defendant and Appellant.\", \"head_matter\": \"STATE of Utah, Plaintiff and Appellee, v. Pierre ADAMS, Defendant and Appellant.\\nNo. 910437-CA.\\nCourt of Appeals of Utah.\\nApril 9, 1992.\\nJoan C. Watt (argued), Lynn R. Brown, Salt Lake Legal Defender Ass\\u2019n, Salt Lake City, for defendant and appellant.\\nR. Paul Van Dam, Atty. Gen., Judith S.H. Atherton (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.\\nBefore BENCH, GREENWOOD and ORME, JJ.\", \"word_count\": \"2046\", \"char_count\": \"12560\", \"text\": \"OPINION\\nGREENWOOD, Judge:\\nDefendant Pierre Adams appeals his conviction of aggravated robbery, a first degree felony, in violation of Utah Code Ann. \\u00a7 76-6-302 (1990). We affirm.\\nBACKGROUND\\nAt approximately 4:30 p.m. on August 3, 1990, a man approached the drive-up window at the Taco Time restaurant on 1000 West and North Temple in Salt Lake City, and ordered two tacos. He then told the clerk he had changed his mind and would come in the restaurant and order. Two young women', Robyn. Maestas and Jennifer Greenwell, were working at the restaurant at the time. Maestas was at the counter pouring punch when the man walked in. Greenwell, who had helped him at the drive-up window, was in the office talking to her father on the telephone. The office is approximately five feet from the counter and the office door was open.\\nThe man stood across the counter, about twelve inches from Maestas, and demanded all of the money in the store. Maestas opened the cash registers and gave him the money. Still on the telephone, Greenwell was unaware the store was being robbed. The man repeatedly asked Maestas to whom Greenwell was talking on the telephone. He became upset and told Maestas that if she did not find out, he would shoot her. He also told her not to tell Greenwell about the robbery or call the police or he would come back and shoot her. Maestas never saw a gun but testified that the man touched a bulge in his pocket and said he had a gun. He remained in the restaurant a total of ten to fifteen minutes. When he left, he walked slowly south on 1000 West. Maestas and Greenwell immediately wrote down a description of the robber and Greenwell called the police. The police officers did not save the written description, however.\\nApproximately ten to twenty minutes after Greenwell called the police, police officers arrested defendant about a half block away from the Taco Time. A police officer then took Maestas and Greenwell to identify defendant, whom they said fit the women's description of the robber. Defendant was handcuffed and standing between two police officers in the doorway of a police van. Both women sat together in the back of the police car and identified defendant from a distance of about thirty feet. Defendant was arrested and charged with aggravated robbery. He did not have a gun when the officers arrested him.\\nBefore trial, defendant made a motion to suppress testimony regarding the eyewitness identification, claiming the procedure violated his due process rights. The trial court denied the motion. Following a jury trial, defendant was convicted of aggravated robbery.\\nISSUES\\nDefendant appeals his conviction on the basis that the witness identification process was improper and that the aggravated robbery charge should have been reduced to simple robbery.\\nWITNESS IDENTIFICATION\\nThe constitutionality of an identification procedure is a mixed question of law \\u2022and fact. Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982). The trial court's conclusion that defendant's due process rights were not violated is reviewed de novo. Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir.1989). The factual findings underlying the conclusion are, however, entitled to a presumption of correctness. Id.\\nDefendant's motion to suppress the identification was based on both the Fourteenth Amendment to the United States Constitution and Article I, Section 7 of the Utah Constitution. However, at the hearing on the motion, defense counsel did not make separate arguments under each constitutional provision or differentiate between them.\\nDetermining the constitutionality of an out-of-court eyewitness identification procedure under the Federal Constitution involves a two-step analysis. Archuleta, 864 F.2d at 711. First, the court must determine whether the identification procedure was unnecessarily suggestive so as to give rise to the possibility of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 970-71, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).\\nSecond, the court must determine \\\"whether under the totality of the circumstances, the identification was reliable.\\\" Biggers, 409 U.S. at 199, 93 S.Ct. at 382; see also Mason v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977) (\\\"reliability is the linchpin in determining the admissibility of identification testimony\\\"). The Supreme Court set forth five factors to be considered when evaluating the reliability of an identification procedure:\\n1. The opportunity of the witness to view the criminal at the time of the crime;\\n2. The witness's degree of attention;\\n3. The accuracy of the witness's prior description of the criminal;\\n4. The level of certainty demonstrated by the witness at the confrontation; and\\n5. The length of time between the crime and the confrontation.\\nBiggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83 (1972). \\\"The court must balance these five factors against the 'corruptive effect' of the identification procedures in order to determine whether the identification testimony should have been suppressed.\\\" Archuleta, 864 F.2d at 711 (quoting Mason, 432 U.S. at 114, 97 S.Ct. at 2253); United States v. Thurston, 771 F.2d 449, 453 (10th Cir.1985).\\nApplying the Biggers factors to the facts of this case, we find that the identification procedure was not unnecessarily suggestive. We also conclude that the procedure was reliable under the totality of the circumstances. The identification occurred a short time after the robbery took place. Both women had the opportunity to observe the robber. Greenwell observed him when he approached the drive-up window. Maestas observed him from a twelve inch distance for ten to fifteen minutes while he was robbing the restaurant. Maestas testified that she was looking \\\"at him most of the time.\\\" Immediately after the robber left, Greenwell and Maestas together wrote down a description of him. At the suppression hearing, Maestas testified that the man was black and was wearing a navy blue or black shirt that was open in the front and a baseball cap. She testified that Adams \\\"had the same clothing on, and the same ball cap on, and everything,\\\" when she first identified him for the police. Both Greenwell's and Maes-tas's testimony at the suppression hearing and at trial indicate that they were certain Adams was the robber. We conclude that the eyewitness identification procedure did not violate defendant's due process rights under the Federal Constitution.\\nThis court has frequently stated we will not analyze issues under the Utah Constitution when the trial court did not have the opportunity to do so. \\\"[T]he proper forum in which to commence thoughtful and probing analysis of state constitutional interpretation is before the trial court, not . for the first time on appeal.\\\" State v. Bobo, 803 P.2d 1268, 1273 (Utah App.1990) (citation omitted). \\\"Nominally alluding to such different constitutional guarantees without any analysis before the trial court does not sufficiently raise the issue to permit consideration by this court on appeal.\\\" State v. Johnson, 771 P.2d 326, 328 (Utah App.1989) rev'd on other grounds (citing James v. Preston, 746 P.2d 799, 801 (Utah App.1987)).\\nWe note, however, that in State v. Ramirez, 817 P.2d 774 (Utah 1991), the Utah Supreme Court, applying the Utah Constitution, affirmed the denial of defendant's motion to suppress an out-of-court eyewitness identification that was much less reliable than that in the instant case. In Ramirez, the defendant was convicted of aggravated robbery. The incident occurred out of doors at about 1:00 a.m. Defendant was one of two robbers and wore a mask which covered most of his face. The eyewitness was one of the victims. He was held at gun point and had only a few minutes to observe defendant. When defendant arrived with the police to identify him, defendant was handcuffed to a chain link fence. He was the only suspect present and was surrounded by police officers. The eyewitness identified him from the back seat of the police car. The eyewitness was the only one of three victims who was able to identify defendant. The supreme court held that the eyewitness identification procedure did not violate defendant's due process rights under either the Utah or federal constitutions. Id. at 784.\\nThe facts of the present case present a more trustworthy procedure than did Ramirez. As discussed above, both women had a good opportunity to view the robber. Maestas's attention, in particular, was focused on him throughout the event. The record indicates the women each remembered details of the man's clothing and both appear to be quite observant. The women's descriptions of the man to the police after the robbery, at the motion to suppress hearing and at trial are basically consistent. We conclude that these facts constitute a reliable identification under the Utah Constitution.\\nAGGRAVATED ROBBERY CHARGE\\nDefendant argues the trial court erred in failing to dismiss the aggravated robbery charge. He claims that because he was not in possession of a dangerous weapon during the robbery, he could only be charged with and convicted of simple robbery. The elements of aggravated robbery are codified in Utah Code Ann. section 76-6-302 (Supp.1990) which reads in pertinent part:\\n(1) A person commits aggravated robbery if in the course of committing robbery, he:\\n(a) uses or threatens to use a dangerous weapon....\\nSimple robbery is defined in Utah Code Ann. section 76-6-301 (1990) as:\\n[T]he unlawful and intentional taking of personal property in the possession of another from his person, or immediate presence, against his will accomplished by means of force or fear.\\nDefendant argues one must actually possess an item which is a dangerous weapon in order to be charged with and convicted of aggravated robbery.\\n\\\"The appropriate standard of review for a trial court's interpretation of statutory law is correction of error.\\\" State v. James, 819 P.2d 781, 796 (Utah 1991); State v. Swapp, 808 P.2d 115, 120 (Utah App.1991).\\nWe find State v. Hartman, 783 P.2d 544 (Utah 1989), dispositive of this issue. In Hartman, the supreme court held that threatening to use a dangerous weapon while committing a burglary or an assault is sufficient to fit within the aggravated burglary or aggravated assault statutes respectively. \\\"Use or display of such a weapon is not required; threat of such use is sufficient.\\\" Id. at 547.\\nIn enacting section 76-6-302, the legislature specified the crime of aggravated robbery included robberies during which the robber \\\"uses or threatens to use a dangerous weapon.\\\" Utah Code Ann. \\u00a7 76-6-302(1)(a). Threatening to use a dangerous weapon during the commission of a robbery, regardless of whether one actually possesses such a weapon, is sufficient for a charge of aggravated robbery under section 76-6-302. Such a construction reflects the legislative intent in enacting the statute. See Hartman, 783 P.2d at 547.\\nIn the instant case, defendant told Maestas that he would shoot her if she told Greenwell of the robbery, called the police, or if she did not find out to whom Green-well was speaking on the phone. While he made these threats, he put his hand on his bulging pocket, leading Maestas to believe he had a gun and reasonably fear for her physical safety. It is not clear whether defendant actually had a gun at the time of the robbery, although he did not have a gun when he was arrested. Because defendant threatened the use of deadly force, we conclude that the trial court did not err in failing to dismiss the aggravated robbery charge.\\nCONCLUSION\\nFor the foregoing reasons, we find that the eyewitness identification procedure did not violate defendant's due process rights under either the federal or Utah constitutions. We also conclude that the trial court did not err in failing to dismiss the aggravated robbery charge. Defendant's conviction is affirmed.\\nORME, J., concurs.\\nBENCH, J., concurs in result only.\"}"

utah/10362390.json

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+"{\"id\": \"10362390\", \"name\": \"Carl W. BARNEY, Petitioner, v. DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, DEPARTMENT OF COMMERCE, State of Utah, Respondent\", \"name_abbreviation\": \"Barney v. Division of Occupational & Professional Licensing, Department of Commerce\", \"decision_date\": \"1992-03-26\", \"docket_number\": \"No. 910755-CA\", \"first_page\": \"542\", \"last_page\": \"544\", \"citations\": \"828 P.2d 542\", \"volume\": \"828\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:06:12.519015+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GREENWOOD, BENCH and ORME, JJ.\", \"parties\": \"Carl W. BARNEY, Petitioner, v. DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, DEPARTMENT OF COMMERCE, State of Utah, Respondent.\", \"head_matter\": \"Carl W. BARNEY, Petitioner, v. DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, DEPARTMENT OF COMMERCE, State of Utah, Respondent.\\nNo. 910755-CA.\\nCourt of Appeals of Utah.\\nMarch 26, 1992.\\nCertiorari Denied June 19, 1992.\\nDale E. Stratford, Ogden, for petitioner.\\nR. Paul Van Dam and Melissa M. Hub-bell, Salt Lake City, for respondent.\\nBefore GREENWOOD, BENCH and ORME, JJ.\", \"word_count\": \"960\", \"char_count\": \"5967\", \"text\": \"PER CURIAM:\\nThis case is before the court on respondent Division of Occupational and Professional Licensing's motion for summary dismissal of the petition for judicial review. We dismiss the petition for lack of jurisdiction.\\nPetitioner is licensed by the Division of Occupational and Professional Licensing to administer a health facility pursuant to Utah Code Ann. \\u00a7 58-15-1 to -11 (1990). The Division is empowered to suspend, revoke or place on probation the license of any licensee who \\\"is or has been guilty of unprofessional conduct, as defined by statute or rule.\\\" Utah Code Ann. \\u00a7 58-1-15 (Supp.1991). On May 2, 1991, the Division filed its initial petition alleging that the petitioner engaged in unprofessional conduct including physically abusing four patients and administering contaminated medicines, both in violation of Utah Code Ann. \\u00a7 58-15-2(9)(a), and administering medication without a physician's order, in violation of Utah Code Ann. \\u00a7 58-l-10(l)(a) (Supp.1991). On July 22, 1991, the Division filed an amended petition alleging basically the same conduct.\\nOn May 14, 1991, petitioner was found by the Second Circuit Court to be not guilty of assault of one of the four patients. On May 7, 1991, charges of \\\"Abuse of a Disabled Adult\\\" were dismissed. In two separate motions, petitioner moved to dismiss the Division's petitions on grounds that the proceeding constituted double jeopardy under the federal and state constitutions, and on a claim that the Division did not have subject matter jurisdiction under the Utah Administrative Procedures Act. An administrative law judge denied the initial motion to dismiss on August 2, 1991, and denied the motion to dismiss the amended petition on October 30, 1991. On November 21, 1991, the petitioner filed a petition for agency review, requesting a review of the denial of the motion to dismiss. On December 18, 1991, the agency issued an order denying petitioner's request for agency review of the denial of the motion to dismiss, based upon Utah Code Ann. \\u00a7 13-1-12(l)(a) (Supp.1991), which permits agency review of \\\"final\\\" orders issued at the close of an adjudicative proceeding. Petitioner filed the present petition for judicial review, requesting this court to review the denial of his motions to dismiss and request for agency review.\\nThe Division contends that this court does not have jurisdiction to consider the petition for review because it is taken from an interlocutory order of an administrative agency. We agree and dismiss the petition.\\nThe Utah Court of Appeals has appellate jurisdiction over \\\"the final orders and decrees resulting from formal adjudicative proceedings of state agencies.\\\" Utah Code Ann. \\u00a7 78-2a-3(2)(a) (Supp.1991). This statute does not authorize the court to review the orders of every admin istrative agency, but allows judicial review of agency decisions \\\"when the legislature expressly authorizes a right of review.\\\" DeBry v. Salt Lake County Bd. of Appeals, 764 P.2d 627, 628 (Utah App.1988). Proceedings in the Division are governed by the Utah Administrative Procedures Act. Utah Code Ann. \\u00a7 13-1-8.5(1) (Supp.1991). Utah Code Ann. \\u00a7 63-46b-16(1) (1989) grants this court jurisdiction to review final agency actions resulting from formal adjudicative proceedings.\\nIn Sloan v. Board of Review, 781 P.2d 463 (Utah App.1989) (per curiam), the court concluded that \\\"an order of [an] agency is not final so long as it reserves something for the agency for further decision.\\\" Id. at 464. In Sloan, the court held that an order remanding a case to the administrative law judge for further proceedings was not a final order for purposes of judicial review. Id. Petitioner contends that the order he seeks to have this court review is final because he has petitioned to have the order reviewed by the agency following denial of his motion to dismiss. He relies upon Heinecke v. Dep't of Commerce, 810 P.2d 459 (Utah App.1991), for the proposition that because departmental review of the administrative law judge's order is optional under Utah Code Ann. \\u00a7 13-1-12, the refusal of the agency to review the administrative law judge's ruling allows judicial review of the administrative law judge's order. The argument does not have merit. Petitioner confuses the requirement for exhaustion of administrative remedies with the requirement for finality. The order in Heinecke revoking petitioner's license was clearly final because it reflected the determination on all issues before the agency, and the issue before this court was whether all levels of agency review were complete at the time judicial review was sought. In contrast, as noted in Sloan, the requirement of finality contemplates that the agency proceedings have been brought to their conclusion by disposition of all issues before the agency. The denial of a motion to dismiss allows the proceeding to continue in the agency and is not a final order for purposes of judicial review.\\nPetitioner also urges this court to defer a ruling on the jurisdictional issue until consideration of the merits of the appeal. Under the circumstances of this case, deferral is inappropriate. It is a court's first duty to determine if it has jurisdiction. Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah App.1989). If the court concludes that it does not have jurisdiction, \\\"it retains only the authority to dismiss the action.\\\" Id.\\nWe dismiss the petition for lack of jurisdiction. The dismissal is not a determination on the merits and is without prejudice to a petition brought at the culmination of the agency proceedings.\"}"

utah/10362560.json

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+"{\"id\": \"10362560\", \"name\": \"HERCULES INCORPORATED, Plaintiff, Appellee, and Cross-Appellant, v. UTAH STATE TAX COMMISSION, Defendant, Appellant, and Cross-Appellee\", \"name_abbreviation\": \"Hercules Inc. v. Utah State Tax Commission\", \"decision_date\": \"1992-12-31\", \"docket_number\": \"No. 920548-CA\", \"first_page\": \"941\", \"last_page\": \"944\", \"citations\": \"845 P.2d 941\", \"volume\": \"845\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:29:34.274849+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BILLINGS, JACKSON and RUSSON, JJ.\", \"parties\": \"HERCULES INCORPORATED, Plaintiff, Appellee, and Cross-Appellant, v. UTAH STATE TAX COMMISSION, Defendant, Appellant, and Cross-Appellee.\", \"head_matter\": \"HERCULES INCORPORATED, Plaintiff, Appellee, and Cross-Appellant, v. UTAH STATE TAX COMMISSION, Defendant, Appellant, and Cross-Appellee.\\nNo. 920548-CA.\\nCourt of Appeals of Utah.\\nDec. 31, 1992.\\nR. Paul Van Dam and Brian L. Tarbet, Salt Lake City, for defendant, appellant, and cross-appellee.\\nKeith E. Taylor, Maxwell A. Miller, and Randy M. Grimshaw, Salt Lake City, for plaintiff, appellee, and cross-appellant.\\nBefore BILLINGS, JACKSON and RUSSON, JJ.\", \"word_count\": \"2000\", \"char_count\": \"12606\", \"text\": \"OPINION\\nJACKSON, Judge:\\nAppellant (Tax Commission) appeals a decision of the Third Judicial District Court Tax Division entitling appellee (Hercules) to recover the tax in controversy plus interest. We reverse.\\nFACTS\\nDuring the years 1977 through 1980, the United States Government had a contract with Lockheed Missiles & Space Company (Lockheed) to build Trident missiles. Lockheed subcontracted with Hercules to build the missile motors. Hercules manufactured the motors at its Bacchus, Utah facility. Upon completion of the manufacturing process, Lockheed, who had a business presence in Utah, inspected the motors and received title to them at the Bacchus facility. At this point, the subcontract items consisted of the unconnected first, second, and third stage motors of the missile\\u2014 three canisters containing an explosive propellant in an inert form. The units were then shipped from Utah via common carrier, on a government bill of lading, to a military assembly facility at a seaport in one of several destination states. It was Lockheed's contractual obligation at each of these facilities to assemble the components of the missile. Hercules, under its subcontract, provided many support services at these facilities. Hercules was compensated by a cost-plan, fixed fee contract calling for partial payment upon delivery to Lockheed at Bacchus, as well as additional payment for services performed at the destination facilities. Payment was also based on component performance. The contract provided for incentives rewarding good performance and penalties discouraging bad performance.\\nIn 1982, the Auditing Division of the Tax Commission issued a \\\"Notice of Deficiency\\\" to Hercules claiming additional Utah Corporate Franchise taxes were due for the years 1977 through 1980. On October 4, 1988, the Tax Commission, after a formal hearing, affirmed the audit deficiency. On November 2, 1988, Hercules paid $890,-462.00 as a prerequisite to appealing the decision to the Third Judicial District Court. See Utah Code Ann. \\u00a7 59-1-505 (1987). Of that amount, $456,512.00 was paid under protest. On February 1, 1991, the district court reversed the Tax Commission's Final Decision and held that Hercules was entitled to a refund with interest on the taxes paid under protest. The Tax Commission appealed the case to the Utah Supreme Court, which transferred the case to us.\\nISSUE\\nThis appeal involves the application of Utah' Code Ann. \\u00a7 59-13-93 (1967) to Hercules' sale of missile motors to Lockheed. The Uniform Division of Income for Tax Purposes Act (UDITPA), governs the amount of taxes payable to Utah when income is derived from both within and without the state. Utah Code Ann. \\u00a7 59-13-79 (1967). The business income to be apportioned to this state is determined by \\\"multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.\\\" Utah Code Ann. \\u00a7 59-13-86 (1967). The sales factor is a fraction, \\\"the numerator of which is the total sales of the taxpayer in this state during the tax period, and the denominator of which is the total sales of the taxpayer everywhere during the tax period.\\\" Utah Code Ann. \\u00a7 59-13-92 (1967). Sales of tangible personal property are \\\"in this state\\\" if the property is \\\"delivered or shipped to a purchaser within this state regardless of the f.o.b. point or other conditions of the sale.\\\" Utah Code Ann. \\u00a7 59-13-93 (1967). The issue in this case is what tangible personal property was sold by Hercules to Lockheed.\\nANALYSIS\\nThe trial court made several findings of fact concerning the subject matter of the sale. The trial court found that the \\\"property\\\" to be sold by Hercules to Lockheed under the subcontract was \\\"a functional rocket motor, which could be fired when the manufacturing process was completed.\\\" The trial court found that upon the completion of manufacturing in Utah, the subcontract items \\\"were not a 'rocket motor' or functional unit that could be fired,\\\" and at that point \\\"the total manufacturing process of the motors being purchased was approximately 60% complete.\\\" The trial court further found \\\"the manufacturing process was completed at the destination assembly facility.\\\"\\nWe review a trial court's findings of fact under a clearly erroneous standard, giving great deference to the trial court's findings. Grayson Roper Ltd. v. Finlinson, 782 P.2d 467, 470 (Utah 1989); Utah R.Civ.P. 52(a). To successfully attack a trial court's findings of fact, an appellant must \\\"demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the findings.\\\" Grayson, 782 P.2d at 470.\\nWe find the evidence insufficient to support the trial court's findings. The record clearly demonstrates that the subject of the Hercules-Lockheed subcontract was a missile motor with accompanying services. The motor is not functional when it leaves Hercules' Bacchus facility. It is only functional when it is assembled into a missile. The court erred when it found the subject matter of the Hercules sale to Lockheed was a functional or usable motor that could be fired. In essence, the court found the subject matter of the sale to be a completed missile. This simply is not the case. Lockheed, as the prime contractor, sold completed missiles to the government. Hercules, as a subcontractor, sold a motor that was a component of the missile's propulsion subsystem.\\nThe trial court found that the motor was not functional when it left Hercules' Bacchus facility, that the manufacturing process was only 60% complete, and that the manufacturing process would not be fully complete until further work was performed at the destination facility. It is clear from the record that the trial court has confused the missile motor with the missile propulsion subsystem. The motor was 100% complete in Utah and comprised approximately 60% of the propulsion subsystem. The director of contract policy implementation for Hercules testified at the formal hearing before the Tax Commission that \\\"[wjhen we finish a motor, we complete it to a drawing. It's not a usable motor at that point, but we complete all the operations that Bacchus is responsible for. Then Lockheed will sign off and say, 'We accept this motor.' \\\" No motor is functional without some way to \\\"turn it on.\\\" Hercules sold Lockheed a completed missile motor. Lockheed combined it with other components necessary to \\\"turn it on.\\\" The manufacturing of the missile motor was completed at Hercules' Bacchus facility. The manufacturing of the propulsion subsystem and ultimately the entire missile was completed at the destination facility. The tangible personal property contracted for by Hercules and Lockheed, and the subject matter of the sale generating the business income to be apportioned, was the missile motor as it left Hercules' Bacchus facility. The trial court's findings with respect to the property are clearly erroneous.\\nSection 59-13-93 of UDITPA states that sales of tangible personal property are in this state if \\\"the property is delivered or shipped to a purchaser within this state regardless of the f.o.b. point or other conditions of the sale.\\\" Utah Code Ann. \\u00a7 59-13-93 (1967). Giving no regard to the f.o.b. point or other conditions of the sale, the sale in this case is a Utah sale if \\\"the property is delivered or shipped to a purchaser within this state.\\\"\\nThe trial court applied this statutory language to erroneous facts incorrectly concluding the sale at issue in this case was not a Utah sale. Applying section 59-13-93 to the motor as it left Hercules' Bacchus facility leads to only one reasonable conclusion: the sale of the missile motor was a Utah sale. Lockheed received the completed missile motors in Utah and is a Utah purchaser. Under section 59-13-93, Hercules' sale of missile motors to Lockheed is a sale, within this state. The trial court's conclusion to the contrary is incorrect.\\nCONCLUSION\\nThe Auditing Division of the Tax Commission properly assessed additional Utah Corporate Franchise taxes on Hercules for the years 1977 through 1980. During that period, Hercules sold missile motors to Lockheed. The motors contracted for were the motors as they left Hercules' Bacchus, Utah facility. The buyer, Lockheed, was doing business in Utah and was a Utah purchaser. The sale was hence a Utah sale under Utah Code Ann. \\u00a7 59-13-93 (1967), and properly included in the sales factor used to apportion business income under Utah Code Ann. \\u00a7 59-13-92 (1967). The Tax Commission's apportionment of Hercules' business income generated from the sale of the missile motor was proper under Utah Code Ann. \\u00a7 59-13-86 (1967).\\nAccordingly, we reverse the trial court's decision to the contrary.\\nBILLINGS and RUSSON, JJ., concur.\\n.Much confusion exists over the definition of \\\"missile motor.\\\" Thus, it is important at the outset to distinguish between the missile motor, the missile propulsion subsystem, and the completed missile. The record and the subcontract show that the motor is essentially three large canisters filled with \\\"tooled\\\" explosives. The motor is a component of the propulsion subsystem. In addition to the motor, the propulsion subsystem consists of firing units, actuators, adaptor sections, and various other components. The propulsion subsystem, together with the re-entry bodies, the nose fairing and the nose cap, make up the completed missile.\\n. A missile motor is not like a car motor. The missile motor is capable of being fired one time only. Once the motor is ignited the \\\"tooled\\\" explosives burn at a steady pace until they burn out. The missile cannot be test-fired to check performance. Consequently, performance-based payments are not received until the missile is actually deployed.\\n. Lockheed had supervisors at the Hercules facility and Hercules had supervisors at the destination facility. Each had to \\\"sign off\\\" on the work completed by the other. This arrangement is necessary considering both stood to benefit financially from work done by the other if the missile performed successfully.\\n. We reemphasize the difference between the missile motor and the missile propulsion subsystem. The propulsion subsystem consists of the first, second, and third stage motors, firing units, and various other components. Without these additional components, the motor is just as unusable as a car motor before adding the starter, ignition switch, and other components.\\n. Hercules bases most of its arguments on the fact that its contractual obligations continued after the motor left the Bacchus facility. The subcontract between Hercules and Lockheed was for the sale of property and services. Hercules' post-sale contractual obligations were mainly for services and are listed in the subcontract under the heading \\\"Technical Support Services.\\\" The only issue before us is the apportionment of business income generated by the sale of property. The issue of income generated by the sale of services is not properly before us and we do not decide that issue.\\n. Hercules cites several cases for the proposition that for purposes of determining in which state a sale takes place, the destination or consumption rule should be applied. See Dep't of Revenue v. Parker Banana Co., 391 So.2d 762, 764 (Fla.Ct.App.1980) (a purchaser from outside the state does not become a purchaser within the state merely by sending a representative to pick up the goods); Olympia Brewing Co. v. Comm'r of Revenue, 326 N.W.2d 642, 647 (Minn.1982) (delivery terminates' where initial purchaser is located); Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 545 (1983) (court applied destination test to determine where sale to out-of-state customer took place). Each of these cases, however, deals with an out-of-state purchaser coming in state to pick up the subject matter of the sale. In the case before us, it is undisputed that Lockheed is a corporation present and doing business within the state of Utah. Lockheed is a Utah purchaser. Accordingly, we do not reach appellee's Commerce Clause argument because no interstate sale occurred.\"}"

utah/10364207.json

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+"{\"id\": \"10364207\", \"name\": \"Duane WILLETT, Plaintiff and Appellant, v. Eldon BARNES, Warden, Utah State Prison, Defendant and Appellee\", \"name_abbreviation\": \"Willett v. Barnes\", \"decision_date\": \"1992-10-28\", \"docket_number\": \"No. 900344\", \"first_page\": \"860\", \"last_page\": \"863\", \"citations\": \"842 P.2d 860\", \"volume\": \"842\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:22:10.974062+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., HOWE, Associate C.J., and STEWART and ZIMMERMAN, JJ\\u201e concur.\", \"parties\": \"Duane WILLETT, Plaintiff and Appellant, v. Eldon BARNES, Warden, Utah State Prison, Defendant and Appellee.\", \"head_matter\": \"Duane WILLETT, Plaintiff and Appellant, v. Eldon BARNES, Warden, Utah State Prison, Defendant and Appellee.\\nNo. 900344.\\nSupreme Court of Utah.\\nOct. 28, 1992.\\nJ. Frederic Yoros, Jr., Salt Lake City, for Willett.\\nR. Paul Van Dam, David F. Bryant, Salt Lake City, for Barnes.\", \"word_count\": \"1445\", \"char_count\": \"8839\", \"text\": \"DURHAM, Justice:\\nPlaintiff Duane Willett sought a writ of habeas corpus in the Fourth District Court in Utah County and also sought leave to withdraw his 1983 guilty plea to a charge of first degree murder. After an evidentia-ry hearing, the district court denied Wil-lett's petitions. This appeal followed. We vacate the district court's ruling and remand for further proceedings.\\nIn 1983, the State charged plaintiff and his son, Harley Willett, with first degree murder. Following plea negotiations, the State agreed to charge Harley Willett with second degree murder in exchange for Duane Willett's guilty plea on a first degree murder charge. Duane Willett now challenges the plea proceeding, contending among other things that the trial court failed to establish a factual basis for the plea. Because we grant plaintiff's requested relief on this ground, we do not address his other claims.\\nThis court's decision in State v. Breckenridge, 688 P.2d 440 (Utah 1983), established that before accepting a guilty plea, a trial court must develop a factual basis upon which to base a conviction of the charged crime. Id. at 443. In Breckenridge, we concluded that even though the plea colloquy did include a recitation of the surrounding facts, as a matter of law those facts were insufficient to support the charge. Id. at 442-44. In this case, the colloquy contains no recitation of any facts surrounding the death of the victim. We therefore conclude that the plea colloquy failed to develop the factual basis necessary for the court to properly accept Wil-lett's plea.\\nOn appeal, the State contends, however, as the district court concluded, that the \\\"record as a whole\\\" established a sufficient factual basis to accept the guilty plea, even if the plea hearing did not. Willett's plea occurred before our decision in State v. Gibbons, 740 P.2d 1309 (Utah 1987), and the pre-Gibbons rule required reviewing courts to uphold guilty pleas as long as the record as a whole demonstrated \\\"substantial compliance\\\" with constitutional and procedural requirements. State v. Hoff, 814 P.2d 1119, 1123-24 (Utah 1991).\\nApplying the substantial compliance test, we conclude that the court below erred. In the entire record, nothing supports a finding that an adequate factual basis existed at the time Willett entered his plea. The State has not adverted to any facts regarding the events themselves that could form the basis of a conviction. The closest anything in the record comes to establishing a factual basis is a brief colloquy, prompted by Mr. Watson, a deputy county attorney, during the entry of Harley Willett's guilty plea on the second degree murder charge:\\nMR. WATSON: Perhaps the court would want to inquire whether or not there is a factual basis from this particular defendant with regard to the entry of this plea Your Honor.\\nTHE COURT: Suppose you state for the court briefly Mr. Willett how exactly it happened on the 20th of November?\\nMR. HARLEY WILLETT: Well, I aided and abetted my father.\\nTHE COURT: In doing what?\\nMR. HARLEY WILLETT: In the commission of killing Mr. Dan Okleberry.\\nTHE COURT: I suppose that is adequate Mr. Watson.\\nThe court then accepted Harley Willett's plea. Yet Harley Willett's statement of \\\"how exactly it happened\\\" is merely a legal conclusion, parroting the statutory elements of the crime charged against him. Whether or not it established an adequate factual basis for Harley Willett's plea, it certainly did not validate the guilty plea that Duane Willett had already entered. We thus reverse the district court's conclusion \\\"[t]hat a factual basis for the charge made against the defendant is evident from the record, even though not succinctly stated by or to the Court.\\\"\\nThe district court also upheld the validity of Duane Willett's plea on a finding \\\"[t]hat although he knew in his own mind that he was not guilty ., he wanted to save his son from any jeopardy to the death penalty.\\\" To the extent the court treated this finding as a sufficient factual basis' to uphold the plea as intelligently and voluntarily made, it misread Breckenridge. In Breckenridge, we suggested that a valid guilty plea required a \\\"record of facts\\\" showing either \\\"that the charged crime was actually committed by the defendant, or that the defendant has for some other legitimate reason intelligently and voluntarily entered such a plea.\\\" 688 P.2d at 440. But by \\\"record of facts\\\" showing some other legitimate reason for the plea, we meant facts that would substantiate the prosecution of the charge at trial, not merely facts establishing the defendant's motivation for entering the plea.\\nBreckenridge cited North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), as an example of other legitimate reasons for pleading guilty. In Alford, the defendant maintained his innocence yet pleaded guilty because he acknowledged the strength of the state's case against him and because by pleading guilty, he avoided risking the death penalty. Id. at 27-29, 91 S.Ct. at 162-163. In denying Willett's petitions, the district court below similarly concluded that Willett believed he had a legitimate reason to plead guilty because he desired to spare his son the risk of the death penalty and he therefore entered his plea intelligently and voluntarily. But in Alford, the record before the trial court documented facts establishing the strength of the state's case, facts that would have placed the defendant at a serious risk of conviction had he proceeded to trial. Id. Critically, in Willett's case the record reveals no facts that would support the prosecution of the charge or suggest that either Duane Willett or Harley Willett faced a substantial risk of conviction at trial. A court cannot be satisfied that a guilty plea is knowing and voluntary unless the record establishes facts that would place the defendant at risk of conviction should the matter proceed to trial. Therefore, Alford is inapposite, and the factual basis requirement of Breckenridge remains unsatisfied.\\nFinally, the State contends that we should take judicial notice of the contents of the preliminary hearing transcript and that the record thus augmented provides an adequate factual basis for plaintiff's plea.\\nWe have acceded to the State's request and received a partial copy of the preliminary hearing transcript (the parties have stipulated that no transcript of the second day of the hearing is available). Unfortunately, the partial transcript before us contains no direct evidence of plaintiff's participation in the homicide, and the circumstantial evidence is extremely tenuous, especially as it relates to the degree of the conviction (first degree murder). As the transcript stands, its contents are insufficient to remedy the inadequacies of the plea proceeding.\\nNevertheless, we are reluctant without further proceedings to set aside a plea of guilty to premeditated murder entered some nine years ago. It is obvious that another prosecution of plaintiff will be difficult after the passage of this much time. If, in fact, plaintiff's plea was not knowing and voluntary, any increased difficulty resulting from the lapse of time cannot, of course, bar the setting aside of his plea. No legitimate interest of the state can be served by the continued incarceration of a man on the strength of a guilty plea that does not satisfy the requirements of the law.\\nHowever, we do not know that the plea was defective. We do not have a complete copy of the preliminary hearing transcript before us, and for that reason, we cannot determine whether what occurred at the preliminary hearing was sufficient to provide a factual basis for plaintiffs later plea. We therefore remand the matter to the trial court to permit the State an opportunity to produce a proper transcript of the preliminary hearing or to otherwise prove what occurred there. If it cannot or if what occurred is insufficient to remedy the defects in the plea proceeding, the trial court should permit plaintiff to withdraw his plea. See Jolivet v. Cook, 784 P.2d 1148 (Utah 1989), cert. denied sub nom. Jolivet v. Barnes, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990).\\nReversed and remanded.\\nHALL, C.J., HOWE, Associate C.J., and STEWART and ZIMMERMAN, JJ\\\" concur.\\n. The rules of practice in effect in the Utah district courts at the time of Willett's plea also required the court to determine \\\"that there is factual basis for the plea.\\\" Rules of Practice, Utah District and Circuit Courts, Rule 3.6(c) (now superseded by The Code of Judicial Administration).\"}"

utah/10365819.json

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+"{\"id\": \"10365819\", \"name\": \"In the Matter of the ESTATE OF Clarence I. JUSTHEIM, deceased. Priscilla KNIGHT, Madelaine L. Harris, Patricia J. Brown, St. Mark's Episcopal Cathedral and The Very Reverend Dean Maxwell, Defendants and Appellants, v. Raymond A. EBERT, Plaintiff and Appellee\", \"name_abbreviation\": \"Knight v. Ebert\", \"decision_date\": \"1991-11-29\", \"docket_number\": \"No. 910244-CA\", \"first_page\": \"432\", \"last_page\": \"439\", \"citations\": \"824 P.2d 432\", \"volume\": \"824\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:42:09.191149+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BILLINGS, JACKSON and ORME, JJ.\", \"parties\": \"In the Matter of the ESTATE OF Clarence I. JUSTHEIM, deceased. Priscilla KNIGHT, Madelaine L. Harris, Patricia J. Brown, St. Mark\\u2019s Episcopal Cathedral and The Very Reverend Dean Maxwell, Defendants and Appellants, v. Raymond A. EBERT, Plaintiff and Appellee.\", \"head_matter\": \"In the Matter of the ESTATE OF Clarence I. JUSTHEIM, deceased. Priscilla KNIGHT, Madelaine L. Harris, Patricia J. Brown, St. Mark\\u2019s Episcopal Cathedral and The Very Reverend Dean Maxwell, Defendants and Appellants, v. Raymond A. EBERT, Plaintiff and Appellee.\\nNo. 910244-CA.\\nCourt of Appeals of Utah.\\nNov. 29, 1991.\\nRehearing Denied Dec. 16, 1991.\\nJ. Richard Bell and Jacque B. Bell, Salt Lake City, for defendants and appellants.\\nJoseph J. Palmer, Jeffrey Robinson, and E. Jay Sheen, Salt Lake City, for plaintiff and appellee.\\nBefore BILLINGS, JACKSON and ORME, JJ.\", \"word_count\": \"4249\", \"char_count\": \"25563\", \"text\": \"JACKSON, Judge:\\nAppellants, beneficiaries of the last will and testament of the deceased, appeal the denial of their motion seeking a new trial. Appellants' motion came after a jury, verdict held the deceased had given certain certificates of corporate stock to Ray Ebert during his lifetime. We affirm.\\nISSUES\\nAppellants have raised three issues which were contained in their motion for a new trial under Rule 59(a)(7), Utah Rules of Civil Procedure: (1) error of law in admitting certain parol evidence, (2) error of law in not applying the doctrine of estop-pel against Ebert's claims of inter vivos gifts of the stock certificates, and (3) error of law in ruling that four letters were not admissible evidence under Rule 403 of the Utah Rules of Evidence. Appellants have raised a fourth issue for the first time on appeal: error of law in not allowing evidence of claims that Ebert exercised undue influence on Justheim in obtaining the certificates.\\nSTANDARD OF REVIEW\\nA trial court's grant or denial of a motion for a new trial will not be overturned on appeal absent an abuse of discretion. Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988); Erickson v. Wasatch Manor, Inc., 802 P.2d 1323, 1326-27 (Utah App.1990). The general rule concerning abuse of discretion is that the appellate court \\\"will presume that the discretion of the trial court was properly exercised unless the record clearly shows to the contrary.\\\" Goddard v. Hickman, 685 P.2d 530, 534-35 (Utah 1984), quoted with approval in Donohue v. Intermountain Health Care, Inc., 748 P.2d 1067, 1068 (Utah 1987). But the trial court has no discretion to grant a new trial absent a showing of at least one of the grounds set forth in Rule 59(a) of the Utah Rules of Civil Procedure. Moonlake Elec. Ass'n. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 128 (Utah App.1988).\\nBACKGROUND\\nClarence I. Justheim died on July 3,1983. Sometime later, Ray Ebert asserted that Justheim had completed two life-time gifts to Ebert consisting of all of Justheim's stock in Wyoming Petroleum Corporation. Justheim designated Ebert, long-time friend, business associate, and caretaker of Justheim, as personal representative in Justheim's will and as trustee of an inter vivos trust created by Justheim as part of his estate plan. Ebert had possession of Justheim's stock certificates and testified that 120,431 shares were delivered to him about two weeks prior to May 29, 1981 and that the remaining 30,712 shares were delivered to him prior to Justheim's death. The certificates Ebert claimed by the first delivery were duly endorsed by Justheim. The certificates Ebert claimed by the sec ond delivery were not endorsed. The certificates in Ebert's possession represented about fifty percent of the corporate stock. Ebert also produced a document entitled \\\"Codicil\\\" which bears the date May 29, 1981. The Codicil also bears Justheim's signature but admittedly has no legal effect since it was not witnessed. Ebert testified he typed the document pursuant to instructions from Justheim. Language in the document states that Justheim has \\\"interest and stockholdings in the Wyoming Petroleum Corp., of which I own approximately fifty percent (50%).\\\" The document further states that \\\"I hereby give, bequeath, and devise to Raymond W. Ebert . all of my interest and stockholdings in the Wyoming Petroleum Corp., .\\\"\\nThe beneficiaries requested and received a jury trial. The jury was asked to determine whether Justheim during his lifetime had made two separate gifts of stock to Ebert, as Ebert claimed. The above described stock certificates, Codicil, and many other documents were admitted as evidence. The above described and other testimony of Ebert was received as evidence, along with testimony of Ebert's wife and his attorney. Ebert's attorney had also been Justheim's legal counsel and prepared his estate plan. Ebert testified of conversations with Justheim, his attorney and his wife. Ebert's wife testified of conversations with Ebert. The attorney testified of separate conversations with Justheim and Ebert. The testimony of these witnesses related to Justheim's inter vivos and testamentary intentions and the circumstances under which Ebert obtained possession of the stock certificates from Justheim. The beneficiaries did not object to this testimony. The jury was instructed concerning applicable law without objection or exception by the beneficiaries. The jury returned separate verdicts finding that Justh-eim had indeed made two inter vivos gifts of the stock certificates to Ebert. The trial court entered its own separate findings of fact and conclusions of law in accord with the jury verdicts.\\nOn appeal, the beneficiaries have not challenged the sufficiency of the evidence, the findings of fact nor the conclusions of law. Rather, they have raised the four issues outlined above.\\nANALYSIS\\nI. Waiver of Issues\\nEbert asserts that the beneficiaries waived their claims of error based on admission of parol evidence and the doctrine of equitable estoppel. Thus, we will address those issues in turn.\\nA. Parol Evidence\\nThe appellants assert that the trial court erred in admitting \\\"Ebert's evidence that he had received Justheim's stock interest in Wyoming Petroleum by way of two inter vivos gifts in derogation to Justheim's Codicil.\\\" Appellants' brief agrees that the evidence was admitted without assertion of the parol evidence rule and that the \\\"rule was first raised by the appellants in post-trial motions before the trial court.\\\" \\\"The parol evidence rule as a principle of contract interpretation has a very narrow application.\\\" Union Bank v. Swenson, 707 P.2d 663, 665 (Utah 1985). Assuming arguendo that the parol evidence rule is applicable, we address the question of appellants' waiver of the rule by failure to object at trial.\\nRule 103 of the Utah Rules of Evidence provides:\\n(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and\\n(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....\\nThe advisory committee note indicates that this subsection is in accord with Rule 4 of the Utah Rules of Evidence and Stagmeyer v. Leatham Bros., 20 Utah 2d 421, 439 P.2d 279 (1968). Stagmeyer states that \\\"in order to complain of the admission of evidence, there must be a clear and definite objection stating the grounds therefor.\\\" Id. 439 P.2d at 282. See also State v. Eldredge, 773 P.2d 29, 34-35 (Utah) (subdivision (a) requires a clear and definite objection at trial to preserve an evidentiary error for appeal), cert. denied 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). In Co-Vest Corp. v. Corbett, 735 P.2d 1308 (Utah 1987), the only issue at trial was the construction of a written document. Both sides offered parol evidence without objection. The trial court ruled against Corbett concerning the meaning of the document. Id. at 1309. On appeal, he claimed the document was clear and unambiguous and not subject to interpretation with extrinsic evidence. Our supreme court ruled that because Corbett did not object to the parol evidence at trial, he could not assert that ground as error on appeal. Id. Peterson v. Hansen-Niederhauser, Inc., 13 Utah 2d 355, 374 P.2d 513 (1962), involved a motion to strike testimony after the witness had been excused. The trial court denied the motion. On appeal of that ruling, the supreme court held the motion was not timely. Id. 374 P.2d at 515. Likewise, we do not consider a motion for a new trial to be a substitute for an objection to evidence. \\\"One who has thus taken his chances of advantage has not, when he finds the testimony prejudicial, the legal right to exclude it.\\\" Id. See also State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986) (to preserve for appeal a contention of error in the admission of evidence, appellant must raise a timely objection to the trial court in clear and specific terms). Since appellants made no objection here, the trial judge had no opportunity to correct the alleged error before submitting the matter to the jury. Based on the foregoing, we cannot say that the trial court abused its discretion or acted unreasonably in denying appellants' motion for a new trial based on the ground of admission of parol evidence when that evidence was admitted without any objection from appellants.\\nB. Equitable Estoppel\\nAppellants assert that \\\"Ebert, by his silence [regarding the inter vivos gifts] when he ought to have spoken, induced and created an apparent situation that Justheim owned 50% of the stock at the time he executed his Codicil. Now he wants to deny the existence of the facts he created to the detriment of the beneficiaries.\\\" Assuming arguendo that equitable estoppel is applicable, we address the question of appellants' waiver of that doctrine by failure to plead or raise it at trial.\\nAppellants did not plead estoppel at any time, nor assert it as an issue in the pretrial order. Their estoppel theory was first mentioned in their post-trial \\\"motion for judgment notwithstanding the verdict and oral judgment of the court.\\\" Appellants' estoppel ground was incorporated by reference into their motion for a new trial. Estoppel must be pleaded or it is waived. Manger v. Davis, 619 P.2d 687, 696 (Utah 1980) (failure to plead an estoppel waives the defense under Rule 12(h) of the Utah Rules of Civil Procedure). Thus, we cannot say that the trial court abused its discretion or acted unreasonably in denying appellants' motion for a new trial on the ground of estoppel when that doctrine was not raised before or during the trial.\\nII. Admission of Four Letters\\nAppellants wanted to introduce into evidence a series of four letters written to Ebert by John Morgan, Jr., the other major shareholder in Wyoming Petroleum Corporation. Morgan sent the letters to Ebert between October 10, 1983 and January 21, 1984, that is, long after the transactions in question and several months after Justheim's death. Appellants assert that \\\"the letters show a constant reliance by Ebert on the Codicil, as well as the failure to ever allege a gift or gifts, for more than six months after Justheim's death and commencement of probate proceedings.\\\" Appellants do not articulate whether they offered the letters as evidence that the \\\"gifts\\\" were not intended to be presently effective inter vivos transfers or to impeach Ebert's testimony due to an alleged change of position, or both. In any event, the court held that the letters were not admissible under Rule 403 of the Utah Rules of Evidence, although the court said some portions might be admissible. After the court ruled that the letters were not admissible evidence, it urged the parties to stipulate that portions of the letters could be submitted to the jury. Accordingly, the parties entered into a written stipulation providing for submission to the jury of the following material from three of the letters:\\n10/10/83: In my recent discussions with you, you have indicated to me that Clarence, by his Will or a Codicil, had given you all of his stock of Wyoming Petroleum Corporation.\\n11/21/83: I have a copy of Clarence's Will, which Frank Allen gave me; it doesn't mention Wyoming Petroleum stock. Yet you tell me you have an Amendment to the Will which gives you all of the stock.\\n1/8/84: The Codicil is not witnessed; a Codicil requires two witnesses to be valid, so I doubt Frank Allen prepared it. Who prepared the Codicil?\\nThe fourth letter was excluded because the trial court considered the relevant portion to be merely cumulative in relation to the others.\\nEbert argues that the trial court did not abuse its discretion in excluding the contents of the letters. On review of eviden-tiary rulings by the trial court, we will not reverse unless it is shown that the trial court has abused its discretion. Whitehead v. American Motor Sales Corp., 801 P.2d 920, 923 (Utah 1990). Our review of the contents of the letters reveals that they had little, if any relevant information bearing on the issues of whether Justheim intended to make a gift or a devise of the stock certificates or how Ebert came to have possession of them. At the same time, the letters contained much that was self-serving, rhetorical, argumentative and speculative. The above quoted material was submitted into evidence. Further, both the author of the letters and the recipient testified concerning the pertinent facts. Accordingly, we cannot say that the trial court abused its discretion in excluding the letters except for the excerpts quoted above.\\nIII. Undue Influence Claims\\nAppellants filed a motion to amend their brief nine days after appellee's brief was filed. Our supreme court permitted the parties to file ten page supplemental briefs and required that \\\"all parties shall address whether the additional issue briefed by appellant has been properly preserved by appellant and can now be presented on appeal.\\\" After the supplemental briefs were filed, the supreme court transferred the case to us for disposition.\\nThe additional issue as stated by appellants is that they were denied \\\"any opportunity to lay before the jury [evidence of] the significant issue of Ebert's confidential relationship with Justheim\\\" and \\\"Ebert's fiduciary duty of loyalty to the Justheim Trust.\\\" As noted, appellants had presented only two issues in their docketing statement: (1) The trial court failed to exclude all evidence at the trial which was violative of the parol evidence rule; and (2) the court further erred by its refusal to receive into evidence the four Morgan letters. Later, appellants' main brief identified three is sues: the two above, plus failure to grant relief on the basis of equitable estoppel. Then after briefing was completed, appellants requested addition of this fourth issue, i.e., exclusion of evidence of Ebert's confidential relationship and fiduciary duty. That evidence was excluded by the trial court's grant of Ebert's pre-trial motion in limine in the present proceeding. Appellants cite only Romrell v. Zions First Nat'l Bank, N.A., 611 P.2d 392 (Utah 1980), as authority that these undue influence issues have been preserved for appeal and ought to be considered by us. We do not find Romrell persuasive in this case. Romrell involved the failure of the trial court to comply with the mandatory requirement of Rule 52(a) of the Utah Rules of Civil Procedure to make findings of fact. On appeal, failure of the trial court to comply could not be waived. Id. at 394. Here, we are not dealing with failure of the trial court to follow a mandatory rule of procedure following trial. We are dealing with a discretionary ruling made at the beginning of trial to which appellants failed to object. Further, appellants did not mention this issue in their docketing statement nor in their main brief. The claimed error was not timely specified to the trial court, so it could be considered there, nor was it timely specified on appeal pursuant to Utah Rules of Appellate Procedure 9, 11 and 24.\\nMoreover, our review of the record convinces us that the issue was waived by appellants at trial. The pre-trial order entered before the bifurcation stipulation contained the following claim by appellants:\\n(4) that in the event Justheim did give all or part of said stock to Ebert, such gift or gifts were made as a result of undue influence by Ebert in his position as trustee, confidential advisor or fiduciary to Justheim, or that said gift or gifts were given to Ebert not in his individual capacity, but as trustee of the Justheim Trust, or that such gift or gifts were not intended by Justheim to take effect until after Justheim's death; _\\n(Emphasis added).\\nAppellants asserted undue influence of Ebert in obtaining the stock as one ground for his removal as personal representative and presented evidence in support of that theory.\\nFollowing the removal proceeding, the trial court entered the following finding of fact on this issue:\\nThat petitioners [appellants] failed to prove the following allegations by a preponderance of the evidence:\\nC. That these gifts were made as a result of undue influence by Ebert in his position as Trustee, confidential advisor or fiduciary to Clarence.\\nFurther, the court's conclusions of law stated that there was no confidential relationship. At the beginning of this inter vivos gift proceeding, the court and counsel considered at length on the record the question of admitting further undue influence evidence. Ebert had filed a motion in limine to exclude such evidence based on the pre-trial order and the earlier stipulation of the parties to bifurcate the case into separate \\\"removal\\\" and \\\"gift\\\" proceedings which stated:\\nThe parties stipulated that the court would reserve and not now determine the issue of the validity of the inter vivos gifts of 151,143 shares of Wyoming Petroleum Company, Wyco, common stock to Ebert, and that the parties might offer further evidence on that issue.\\n(Emphasis added).\\nThe trial court and counsel discussed the motion in chambers and then on the record as follows:\\nTHE COURT: The record should indicate that the Jury has now gone. The plaintiffs, if I may \\u2014 or plaintiff, if I may call him that, Mr. Ebert, has filed a Motion in Limine.\\nThis matter was discussed in Chambers among counsel, and my inquiry to Mr. Bell was whether or not there was any further evidence regarding undue influence, fiduciary obligation, confidential relationship, and the like, which he intends to put on as evidence, which was not previously presented at the removal trial.\\nMr. Bell?\\nMR. BELL: Yes, Your Honor. What is that?\\nTHE COURT: My understanding was there was no further evidence.\\nMR. BELL: As I said to the Court in Chambers, I have very little additional evidence along those lines, but that evidence will come in as part of my case related to the gifts. It's just part of it. I don't think it's directed \\u2014 directly to those, but is part of the gift situation.\\nTHE COURT: What is precisely the evidence that you expect to come before the Court that was not before the Court in the removal action?\\nMR. BELL: I don't think I have any, Your Honor, . I do not intend to put on direct evidence of undue influence, I think the Jury, by virtue of some of the conversations and other things that will come into evidence will get overtones of undue influence.\\nIt's not my purpose to put those in on undue influence, but it's my purpose to give a full picture of the gifts, and it's in that area in which I think that the Court ought not to stop me from putting on that kind of evidence.\\nI will not put on any evidence in view of the stipulation [to bifurcate] that says that he unduly influenced him, or questioning of that nature. There may be some overtones of undue influence just by virtue of what I'm going to bring out with regard to the gifts.\\n(Emphasis added).\\nFollowing additional colloquy with counsel, to clarify the understanding of both parties, the trial court ruled:\\nTHE COURT: All right. Well, based on that, then, the Motion in Limine will be granted. I think the record is clear as to what the nature of your motion is and what the nature of my order is on that, so there will not be any evidence allowed in the trial that the relevance is premised solely upon undue influence, fiduciary obligation, or confidential relationship.\\nNor will any reference be allowed to such evidence or to such theories in opening statement or in closing statement or in anything else that comes before this jury-\\nThereafter, as a precaution, in the event any such evidence did come in, the court asked Ebert's counsel to prepare a jury instruction to advise the jury \\\"that that's not an issue they need to worry about.\\\" That jury instruction was prepared as Number Eighteen and with appellants' consent was submitted to the jury. The instruction provided:\\nFrom time to time in this trial, you may have heard evidence or arguments of counsel which characterize Mr. Ebert as Mr. Justheim's confidant, right-hand man or similar characterizations. You may have also heard evidence or arguments of counsel which express that Mr. Justheim relied on Mr. Ebert for assistance in his personal or business affairs. Those references may suggest to you a possibility of superiority or dominance over Mr. Justheim, or the improper use of Mr. Ebert's influence over Mr. Justh-eim. I instruct you that Mr. Ebert did not possess a position of superiority or dominance over Mr. Justheim and that Mr. Ebert did not improperly influence Mr. Justheim as to whether or not Mr. Justheim made gifts of Wyoming Petroleum stock. Those are not issues before you and any such suggestion should not influence your decision in this case.\\nIn State v. Kotz, 758 P.2d 463 (Utah App.1988), we held that failure to object to a jury instruction of which appellant was fully aware precluded raising an objection on appeal. Appellants' counsel made the following statements to the court before the court ruled: \\\"I have very little additional evidence along those lines,\\\" \\\"I don't think I have any [evidence];\\\" \\\"I do not intend to put on direct evidence of undue influence,\\\" and \\\"I will not put on any evidence . that says he [Ebert] unduly influenced him [Justheim], or questioning of that nature.\\\" Due to counsel's statements and his acquiescence in the above jury instruction, we conclude appellants are precluded from raising this issue on appeal. See Coronado Mining Corp. v. Marathon Oil Co., 577 P.2d 957, 960 (Utah 1978).\\nThe judgment of the trial court is affirmed. Appellee's request for an award of costs and fees under Rule 33, Utah Rules of Appellate Procedure, has been considered and is denied. Appellee is entitled to costs as the prevailing party.\\nBILLINGS and ORME, JJ., concur.\\n. Rule 59(a) of the Utah Rules of Civil Procedure provides seven causes or grounds for a new trial. Appellants rely on subsection (7), error in law.\\n. In a prior proceeding in this case for removal of Ebert as personal representative of Justh-eim's estate, the trial court ruled that their relationship was not a confidential relationship in law.\\n. We note that it was appellants who requested that the evidence be heard by a jury and allowed the jurors to hear the parol evidence without objection.\\n. Appellants argue on appeal that the parol evidence rule is one of substantive law rather than an evidentiary rule. Thus, they claim waiver based on lack of timeliness in asserting the rule should not be applied. In West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1313 & n. 2 (Utah App.1991), we rejected this argument. See also State v. Morgan, 813 P.2d 1207, 1211 (Utah App.1991) (party not entitled to both benefit of not objecting at trial and appellate review of issue).\\n. Rule 403 of the Utah Rules of Evidence provides:\\nAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.\\n. The trial court and counsel have characterized the ruling in the prior removal proceeding, that Ebert did not exercise undue influence on Justheim, as being res judicata in the gift proceeding. Actually, the ruling is applied as the \\\"law of the case,\\\" the doctrine that a court should not reconsider and overrule a decision made by a coequal court or judge in the same case. Mascaro v. Davis, 741 P.2d 938, 946-47 (Utah 1987); Sittner v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735, 736 (Utah 1984). Appellants attempt to bring the gift issue under the \\\"different light\\\" exception to the doctrine by arguing that Ebert \\\"becomes two people in the eyes of the law rather than one person wearing two hats.\\\" See Salt Lake City Corp. v. James Constructors, 761 P.2d 42, 45 (Utah App.1988) (law of the case doctrine applicable when subsequent motion fails to present case in a different light). They assert that Ebert is an \\\"individual\\\" person here whereas he was a \\\"personal representative\\\" person there. See Pepper v. Zions First Nat'l Bank, N.A., 801 P.2d 144, 151-52 (Utah 1990). They want Ebert to now be tried on the same evidence by recasting him in an allegedly different role. But we think the doctrine still applies, regardless of the appellants' recasting suggestions, because appellants have not identified or proffered any new or different evidence as to Ebert's roles or how he performed them. Accordingly, Ebert remains \\\"the same mannikin, in the same costume, with a few inconsequential accessories added\\\" and the trial judge remains bound by the previous judge's conclusion of law. Hammer v. Slive, 35 Ill.App.2d 447, 183 N.E.2d 49, 50 (1962). See also Richardson v. Grand Cent. Corp., 572 P.2d 395 (Utah 1977).\"}"

utah/10367123.json

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+"{\"id\": \"10367123\", \"name\": \"MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent; MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent\", \"name_abbreviation\": \"Millard County v. Utah State Tax Commission ex rel. Intermountain Power Agency\", \"decision_date\": \"1991-12-16\", \"docket_number\": \"Nos. 890100, 900285\", \"first_page\": \"459\", \"last_page\": \"464\", \"citations\": \"823 P.2d 459\", \"volume\": \"823\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:54:33.217185+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\", \"parties\": \"MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent. MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent.\", \"head_matter\": \"MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent. MILLARD COUNTY, a legal and political subdivision, Petitioner, v. UTAH STATE TAX COMMISSION ex rel. INTERMOUNTAIN POWER AGENCY, Respondent.\\nNos. 890100, 900285.\\nSupreme Court of Utah.\\nDec. 16, 1991.\\nR. Paul Van Dam, Leon A. Dever, Salt Lake City, for Utah State Tax Com\\u2019n.\\nMark K. Buchi, Richie D. Haddock, Richard G. Wilkins, Salt Lake City, for Inter-mountain Power Agency.\\nLeRay G. Jackson, Fillmore, Bill Thomas Peters, Salt Lake City, and Warren H. Peterson, Delta, for Millard County.\", \"word_count\": \"2632\", \"char_count\": \"16346\", \"text\": \"STEWART, Justice:\\nMillard County seeks a writ of review of an order of the Utah State Tax Commission (1) denying the County's motion to intervene in a proceeding before the Commission to redetermine the sales tax liability of Intermountain Power Agency (\\\"IPA\\\"), and (2) denying the County's request to review certain Commission records concerning IPA. Millard County also seeks review of the Commission's final order fixing IPA's sales tax liability. These cases have been consolidated.\\nUtah's Local Sales and Use Tax Act allows any county, city, or town to impose a local option sales and use tax, or \\\"piggyback\\\" tax, up to \\u00be of 1% on all sales subject to the state sales tax within the jurisdiction of the local governmental entity. Utah Code Ann. \\u00a7 59-12-201 to -208 (1987 & Supp.1991); see also Salt Lake City v. Tax Comm'n, 813 P.2d 1174, 1175 (Utah 1991). Although the tax is imposed only at the option of local government, the state collects the local option tax along with the state sales tax and remits the proceeds of the local tax to the governmental entity imposing it. Millard County elected to impose a local option sales and use tax.\\nIPA pays substantial sales taxes on transactions that occur in Millard County. In May 1988, IPA filed a petition with the Commission for a redetermination of its sales and use tax liability. In June 1988, the County filed a motion to intervene in the redetermination proceeding and to review certain records pertaining to IPA's tax liability. In August 1988, the Commission and IPA stipulated to the amount of IPA's tax liability, and in February 1989, the Commission denied the County's motion to intervene and its request to review records.\\nIn this Court, the County argues that it was entitled to review the tax records because of a contractual provision between the County and the Commission. The terms of the contract are statutorily mandated. The contract provides in part: \\\"The Commission agrees to permit authorized personnel of the Political Subdivision to examine the records and procedures of the Commission concerning the local tax law, the ordinance and the records of taxpayers subject thereto.\\\" The Commission responds that Utah Code Ann. \\u00a7 59-1-403(1) (1987) requires that sales tax returns be kept confidential and, therefore, the County is not entitled to review the records.\\nWe turn first to that issue. Utah Code Ann. \\u00a7 59-1-403(3)(b) provides that the Commission may by rule share information gathered from returns with a political subdivision of the state if the political subdivision grants substantially similar privileges to the state. This Court recently held that contractual provisions that are almost identical to the instant provisions accorded Salt Lake County the right of access to relevant records concerning the local tax law. See Salt Lake City v. Tax Comm'n, 813 P.2d 1174 (Utah 1991). Since the instant case is not distinguishable, Salt Lake City is controlling. We hold that the Commission erred in denying Millard County's request to review the records.\\nMillard County next asserts that the Commission erred in denying the motion to intervene. We first note that an order denying a motion to intervene is a final disposition of the claims asserted by the applicant for intervention and is appeal-able. See Tracy v. University of Utah Hosp., 619 P.2d 340, 342 (Utah 1980); Commercial Block Realty Co. v. United States Fidelity & Guaranty Co., 83 Utah 414, 28 P.2d 1081, 1082 (1934). We have previously held that counties have standing to challenge determinations by the Commission which directly affect the counties' budgeting and taxing functions. See Kennecott Corp. v. Salt Lake County, 702 P.2d 451, 454 (Utah 1985). It follows that Millard County has standing to intervene based on its direct interest in the proceeds of the local option sales tax that the Commission collected on the County's behalf.\\nBefore we reach the question of the County's entitlement to intervene, we address the argument advanced by the Commission and IPA that their stipulated resolution of IPA's tax liability renders the County's petition to intervene moot. The general rule under the rules of civil procedure is that final settlement of all issues by all parties to a controversy renders a permissive intervenor's motion to intervene moot. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure \\u00a7 3533.2, at 236 (2d ed.1984); Horn v. Eltra Corp., 686 F.2d 439, 440-42 (6th Cir. 1982). The rule is different, however, with respect to a motion to intervene as of right. The settlement of a controversy by the parties before a motion to intervene as of right has been adjudicated does not constitute a final settlement and does not render moot either the motion or an appeal from a denial of that motion. In Federal Deposit Ins. Corp. v. Jennings, 816 F.2d 1488, 1491 (10th Cir.1987), the court stated: \\\"To allow a settlement between parties to moot an extant appeal concerning intervention of right might well provide incentives for settlement that would run contrary to the interests of justice.\\\" These principles governing mootness with respect to intervention also appropriately apply where intervention is governed by statute.\\nTo permit the settlement of a controversy by stipulation to moot an extant motion to intervene under a statute or to moot an appeal from an order denying a motion to intervene could destroy the legal right on which the motion to intervene is based and, in this case, allow procedural strategies to defeat the statutory policy allowing for intervention. Furthermore, an appeal from a denial of motion to intervene of right is not mooted just because no party to the case takes an appeal from the final judgment or order in the case in which the putative intervenor sought to intervene. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 688, 81 S.Ct. 1309, 1312, 6 L.Ed.2d 604 (1961). The same rule applies even when one of the parties to the litigation is a governmental agency and the putative in-tervenor is a governmental entity.\\nThe County's motion to intervene was filed before the Commission and IPA reached a settlement. The Commission denied the motion six months after the settlement of the tax liability issue. Here, the Commission was both the agency responsible for ruling on the motion to intervene and a party to the settlement. Were we to hold the County's motion to intervene moot, we would enable the Commission to circumvent the statutory right of intervention. The Commission cannot deal with such motions in a fashion that undermines the purpose of the statutory scheme for intervention.\\nIn sum, the Commission's settlement with IPA did not moot either the motion to intervene or the County's appeal from the order denying the motion to intervene.\\nWe turn now to the merits of the County's motion to intervene. Utah Code Ann. \\u00a7 63-46b-9(2) provides that a petition for intervention \\\"shall be granted,\\\" first, if a petitioner's legal interest may be \\\"substantially affected\\\" and, second, if the \\\"interests of justice and the orderly and prompt conduct\\\" of the proceedings will not be materially impaired.\\nThus, although \\u00a7 63-46b-9(2) does not grant an absolute right to intervene, it does establish a conditional right to intervene if the requisite legal interest is present. That right is subject only to the condition that the interests of justice and orderly conduct of the administrative proceedings will not be impaired.\\nAs to the first part of the statutory standard, it is clear that the County has a legitimate legal interest in IPA's sales tax liability, and consequently in the Commission's settlement of the controversy, because the County's legal interest in the proceeds of the local option tax could have been \\\"substantially affected\\\" by the resolution of the issues in the final settlement.\\nWith respect to the second part of the statutory standard, the Commission cannot simply deny a motion to intervene on the ground that its discretion is unlimited and therefore unreviewable. The Commission's discretion is limited, and to deny a motion to intervene, the Commission must rely on substantial reasons.\\nIn its denial of the County's motion to intervene, the Commission stated that the County's intervention would \\\"create an administrative nightmare, greatly increase the cost of administering the system, clog the entire system including the appeal and hearing system, unduly complicate all sales tax proceedings, and substantially delay the receipt of . revenues.\\\" The basis for these conclusions was that if the County were allowed to intervene, then approximately 250 other taxing districts would also have the same rights. That conclusion is plainly incorrect.\\nMillard County has sought to intervene with respect to only one taxpayer and with respect to limited transactions, the taxability of which may be legally arguable. The County has not sought to review the validity of all sales tax collections within its borders. If such were the case, the Commission's fears would have a sounder basis. But here, the Commission's contention that allowing intervention would clog the entire administrative system is highly exaggerated.\\nIt does not necessarily follow, however, that every local governmental agency that adopts a local option sales tax must be allowed to intervene in all Commission proceedings dealing with the collection of local sales and use taxes. Clearly, there is a vast difference between Millard County's interest in intervening in a proceeding against IPA and the interest of a city or county in intervening in routine proceedings involving sales tax audits of all businesses located in that city or county. The issues the County sought to raise here are much more complex from a legal point of view and have a much greater potential impact on the local government than routine sales tax audits. Here, the Commission settled with IPA for substantially less than the Commission initially claimed IPA owed. We certainly do not impute either improper motives or conduct to the Commission in compromising the claims against IPA. Nevertheless, the County does have an interest in the amount of the taxes compromised. Its participation in the proceedings may have resulted in a different, more favorable settlement of IPA's tax liability. Indeed, the Legislature may have thought that local governmental agency participation in significant cases such as this would assure better enforcement of tax liabilities of major taxpayers than the Commission could otherwise accomplish because of the Commission's broad responsibilities and limited resources and the more particularized interest of the local agency.\\nFurthermore, although intervention may complicate proceedings to a degree, the Commission can and should devise procedures to minimize the burden without undermining the right of local governments to intervene in appropriate cases. In cases in which a number of political subdivisions have a legitimate legal interest in a proceeding, the Commission might, for example, allow one local taxing agency to act on behalf of other similarly situated agencies if intervention and full participation of all would be unduly burdensome to the Commission. When there is an identity of interests among a number of taxing agencies, it is unlikely, in any event, that multiple interventions would be sought. Even if they were, the interests of the agencies can be adequately accommodated in most instances by a procedure that allows one party, or perhaps a few, to act on behalf of others.\\nIn sum, Millard County has met both the statute's and the Commission's requirements for intervention. The disputed tax assessment against IPA necessarily turns on facts and legal issues that are identical with respect to the County and the Commission. The County's legal interests may have been substantially affected. The Commission's conclusion that the interests of justice and the orderly and prompt conduct of the proceedings would be impaired by intervention is not realistic. Here, there is only one taxpayer; only one local entity seeks to intervene; and the amount of tax revenue at stake is large in terms of its significance to the County. This is not a run-of-the-mill sales tax audit case. To disallow intervention in this case would justify disallowing it in every case and render the intervention statute a nullity.\\nTherefore, the Commission erred in denying the County's motion to intervene. Millard County is entitled to participate in a reopened proceeding before the Commission to determine the amount of IPA's tax liability.\\nFinally, we turn to the County's assertion that the Commission has no authority to compromise or settle IPA's tax liability. In response, the Commission argues that it has exclusive authority to ascertain, assess, and collect sales and use taxes. Utah Code Ann. \\u00a7 59-12-203 permits counties and other taxing districts to levy sales and use taxes, but \\u00a7 59-12-204(5) requires a county or taxing district to contract \\\"with the commission to perform all functions incident to the administration or operation of the ordinance.\\\" See also Utah Code Ann. \\u00a7 59-12-204(4). Section 59-12-118 provides: \\\"The administration of this chapter is vested in and shall be exercised by the commission which may prescribe forms and rules to conform with this chapter for the making of returns and for the ascertainment, assessment, and collection of the taxes imposed under this chapter.\\\"\\nAs a general proposition, \\u00a7 59-12-204(5) and \\u00a7 59-12-118 authorize the Commission to determine the amount of a taxpayer's sales tax liability and, in appropriate cases, to compromise and settle disputes with taxpayers. However, we need not now decide whether, after intervention has been allowed in a local option sales tax case, the Commission may settle a case over an in-tervenor's objection.\\nThe Commission's order denying the County's motion to intervene and the County's request to review tax records is reversed, and the case is remanded for further proceedings.\\nHALL, C.J., HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\\n. In Jennings, the court distinguished Tosco Corp. v. Hodel, 804 F.2d 590 (10th Cir.1986), which held that when a motion to intervene is filed after settlement, a court lacks jurisdiction to decide the motion because there was no existing case in which to intervene. Jennings, 816 F.2d at 1491 n. 4. However, some courts, in considering the issue of timeliness of a motion to intervene, have held that parties who have knowledge of contemplated intervention cannot cut off a right of intervention by a settlement. See Annotation, Time Within Which Right to Intervene May Be Exercised, 37 A.L.R.2d 1306, \\u00a7 18[b], at 1362 (1954).\\n. Utah Code Ann. \\u00a7 63-46b-9(2) states in full:\\nThe presiding officer shall grant a petition for intervention if he determines that:\\n(a) the petitioner's legal interests may be substantially affected by the formal adjudicative proceeding: and\\n(b) the interests of justice and the orderly and prompt conduct of the adjudicative proceedings will not be materially impaired by allowing the intervention.\\nUtah Administrative Rule 861-1-5A(J), promulgated by the Commission, also provides for intervention. Rule 861 \\u2014 1\\u20145A(I) provides, with respect to motions for consolidation, and by reference, motions for intervention, that the \\\"presiding officer\\\" has \\\"wide discretion\\\" in granting or denying motions.\\n. The Tax Commission expresses the concern that it will have to give all governmental agencies that have some legal interest in a given proceeding prior notice of their statutory right to intervene. We fail to see any reason why such a notice would have to be given.\"}"

utah/10381912.json

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+"{\"id\": \"10381912\", \"name\": \"ESTATE LANDSCAPE AND SNOW REMOVAL SPECIALISTS, INC., Plaintiff and Appellee, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant and Appellant\", \"name_abbreviation\": \"Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Telephone & Telegraph Co.\", \"decision_date\": \"1990-05-24\", \"docket_number\": \"No. 880428-CA\", \"first_page\": \"415\", \"last_page\": \"421\", \"citations\": \"793 P.2d 414\", \"volume\": \"793\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:02:32.245381+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DAVIDSON, JACKSON and LARSON, JJ.\", \"parties\": \"ESTATE LANDSCAPE AND SNOW REMOVAL SPECIALISTS, INC., Plaintiff and Appellee, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant and Appellant.\", \"head_matter\": \"ESTATE LANDSCAPE AND SNOW REMOVAL SPECIALISTS, INC., Plaintiff and Appellee, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant and Appellant.\\nNo. 880428-CA.\\nCourt of Appeals of Utah.\\nMay 24, 1990.\\nFloyd A. Jensen, Salt Lake City, for defendant and appellant.\\nDavid D. Loreman and Lowell V. Sum-merhays, Murray, for plaintiff and appel-lee.\\nBefore DAVIDSON, JACKSON and LARSON, JJ.\\n. John Farr Larson, Senior Juvenile Court Judge, sitting by special appointment pursuant to Utah Code Ann. \\u00a7 78-3-24(10) (Supp.1989).\", \"word_count\": \"3478\", \"char_count\": \"21144\", \"text\": \"OPINION\\nLARSON, Judge:\\nThis is an action seeking to collect amounts alleged to be due under a contract for snow removal services rendered by Estate Landscape and Snow Removal Specialists, Inc. (Estate Landscape). Defendant Mountain States Telephone and Telegraph Company (Mountain Bell) appeals from a judgment in favor of Estate Landscape.\\nEstate Landscape and Mountain Bell entered into a written contract which provided that Estate Landscape would remove snow from certain buildings occupied by Mountain Bell in return for payment at a specified rate. Estate Landscape performed its work suitably, and billed Mountain Bell twice, once for work through December 27 and again at the end of the snow season. The billing separately listed each snow removal item by date.\\nMountain Bell paid the first bill, but considered the $30,162.90 total of the second bill to be excessive for the services at its Alta office. It therefore sent Estate Landscape a check for only $8,613. The check did not contain a restrictive endorsement or a waiver on its face. Upon receipt of the check, Estate Landscape responded by acknowledging partial payment and requesting the balance remaining, but Mountain Bell refused to pay the balance. Next, Mountain Beil sent Estate Landscape a letter explaining its position concerning the bill for the Alta office. According to the letter, the contract for the Alta office provided that Estate Landscape would remove snow when it reached a depth of four inches. From snowfall records for Alta, it appeared that Estate Landscape had billed for snow removal on days when the snowfall was less than four inches. On the basis of the snowfall records, therefore, Mountain Bell refused to pay for snow removal on certain days for which Estate Landscape had charged for its services. The letter specifically detailed all contested snow removal services by date. Mountain Bell's letter concluded:\\nBased on the above identified billing discrepancies we have enclosed[ ] check for $8613.00 which is payment in full for satisfaction of contracted services. If you are not willing to accept that sum, $8613.00 in full satisfaction of sums due, DO NOT negotiate the check, for upon your negotiation of that check, we will treat the matter as fully paid.\\n(Emphasis in original).\\nWhen Estate Landscape received the letter, the check it had earlier received from Mountain Bell had not been cashed. Estate Landscape responded to Mountain Bell's letter by commencing this action against Mountain Bell. Initially, Estate Landscape complained for the entire $30,-162.90 of its second bill for the winter of 1984-85. About two weeks after filing suit, Estate Landscape endorsed the check from Mountain Bell and cashed it, then amended its complaint against Mountain Bell to seek only the difference between the amount of the check and the amount billed.\\nMountain Bell moved for summary judgment on the grounds that its letter and check tendered to Estate Landscape were an accord and satisfaction of its obligation under the snow removal contract. The district court, per Judge Michael R. Murphy, denied the motion, noting that Mountain Bell admitted that it owed the amounts tendered in the check. The case proceeded to trial before the bench.\\nAt trial, Judge Timothy R. Hanson considered the earlier denial of summary judgment to have resolved the question of accord and satisfaction, and granted judgment to Estate Landscape for the amount of its bill, less certain charges for work not mentioned in the contract. The judgment included interest accruing before judgment, compounded annually. Mountain Bell appeals.\\nFactual Standard of Review in Summary Judgment\\nMountain Bell now argues that the trial court erred in treating its motion for summary judgment as dispositive of its accord and satisfaction defense and thereafter refusing to reopen that issue at trial on the grounds that it was law of the case. Mountain Bell argues that the combined effect of the dispositive summary judgment and the refusal to try the issue was an unfairly skewed view of the facts in the district court. Mountain Bell argues that the court views the facts for summary judgment purposes in a light unfavorable to the moving party, and therefore, because the summary judgment was treated as conclusive against the movant, the mov-ant here, Mountain Bell, never had a chance for a fair view of the facts on the issue.\\nMountain Bell, however, is not precisely correct in thus describing a court's factual viewpoint in deciding a motion for summary judgment. Although it may be true for most summary judgments that the court views the facts in favor of the non-movant, that formulation takes into account only perhaps the most common outcomes of a motion for summary judgment, in which the moving party either receives the judgment it seeks, or all judgment is denied and the issue reserved for further consideration. However, in this case, Mountain Bell moved for summary judgment, and its motion was denied on the merits, and that denial effectively disposed of Mountain Bell's accord and satisfaction defense. Later, that disposition was regarded as the law of the case, and the accord and satisfaction issue was not reopened.\\nRecognizing that the party adversely affected by the summary judgment has not had an opportunity for trial, the court views the facts in the light most favorable to that party. In situations in which summary judgment is granted, the party adversely affected would be the party who did not move for summary judgment. If summary judgment is denied on the merits and a claim or defense of the movant thereby eliminated, then the facts are viewed in the light most favorable to the moving party. Summary judgment may also be denied without reaching the merits of any claim or defense, often because the court cannot reconcile the material elements of the parties' versions of the facts, and thus cannot grant a summary judgment under Utah R.Civ.P. 56(c). Since any material difference in the parties' versions of the facts will preclude summary judgment, the shadings of light in which the facts are viewed cannot make a substantial difference in the result, even if the shading applied is erroneous.\\nIn this case, Mountain Bell was the mov-ant for summary judgment on the accord and satisfaction issue. The district court's memorandum decision on Mountain Bell's motion was clearly intended to lay the defense of accord and satisfaction to rest. Since a defense of Mountain Bell's was thereby eliminated, the facts should be viewed in the light favorable to Mountain Bell. The record does not explicitly note whether the district court thus viewed the facts; however on appeal, we view the facts supporting a summary judgment through the same lens filter as the trial court. Therefore, since the issue of correctness of the summary judgment on its merits is before us, we proceed to review it in the light most favorable to Mountain Bell.\\nLack of an Accord\\nIn denying summary judgment on the merits, the district court reasoned that the contract for snow removal in this case was severable, and that the scope of the accord was therefore limited to only part of the contract. According to this reasoning, the accord and satisfaction did not fully discharge the contract.\\nIdentifying which claim or claims are the subject of an accord and satisfaction depends on the manifested intent of the parties. However, before we can determine the contractual intent of the parties, we must have a contract. There is no contractual intent to be discovered where there has been no mutual assent. In this case, the mutual assent for the would-be accord is lacking.\\nFrom Mountain Bell's point of view, the accord is contained essentially in its letter of June 14, 1985, to Estate Landscape. However, this letter is entirely unilateral; there is no indication that Estate Landscape assented to the letter as an accord. Its signature on the check is not an assent to an accord not found on the face of the check as a restrictive endorsement, where the party to whom the accord is offered has expressly rejected the proposed accord, continued the dispute, and filed litigation to resolve it adversarially in court. It is therefore apparent that an accord was offered, a check tendered in anticipation that an accord would be reached, and a letter sent indicating what Mountain Bell intended and would do if the check were negotiated, but there is no indication of Estate Landscape's assent to the accord. Even in the light most favorable to Mountain Bell, the evidence simply falls short of demonstrating Estate Landscape's acceptance of Mountain Bell's offer to settle the account. It would, perhaps, be possible to offer an accord and provide in the offer that cashing an accompanying check would be acceptance of the offer, since the offer- or can, within reason, specify the act that shall constitute acceptance. However, the offeree can also reject the offer, after which there is nothing left to accept. We believe that the telephone conference continuing the dispute and the filing of litigation amount to a rejection of the offered accord. After the litigation was underway, there remained the question of what to do with Mountain Bell's tendered check in Estate Landscape's possession. Estate Landscape acted within its rights in cashing check as payment of the portion of its claim that Mountain Bell agreed was owing; in fact, it may have had a duty so to act in order to properly mitigate its damages. Thus, even if we resolve any immaterial factual doubt in Mountain Bell's favor, this appears to be a situation in which one party asserts an accord to which the other party, for all that appears, never agreed. In such a case, accord and satisfaction is not a defense for lack of a binding accord.\\nCompounding of Interest\\nMountain Bell's final argument is that, even if it is liable for the amount of the judgment, the interest on the judgment should not have been compounded. The general rule is that simple, not compound, interest accrues on a judgment, unless the parties contract otherwise, which they have not in this case, or unless the statute providing for interest on judgments expressly requires compounding, which ours does not.\\nThis rule against compound interest on judgments is consistent with the general judicial disfavor of interest on interest. It is also of long standing and forms part of the backdrop against which the Legislature has statutorily provided for interest on judgments. We see no compelling reason to alter this longstanding gloss on the judgment interest statute. We therefore decline the invitation to engraft onto the statute judicial discretion to allow compound interest and reverse as to the award of compound interest.\\nExcept in regard to the interest provided in the judgment, the trial court's decision is affirmed. We vacate the provisions of the judgment relating to interest and remand for amendment of the judgment to provide for simple, rather than compound, interest.\\nDAVIDSON, J., concurs.\\n. The contract required monthly statements, rather than a single statement at the end of the season. Mountain Bell claimed that Estate's failure to provide monthly billings was a breach, but the trial court found that the breach was not material, and thus, it did not excuse Mountain Bell from its obligations. See Nielson v. Droubay, 652 P.2d 1293, 1297 (Utah 1982); Darrell J. Didericksen & Sons, Inc. v. Magna Water and Sewer Improvement Dist., 613 P.2d 1116, 1119 (Utah 1980); 4 A. Corbin, Corbin on Contracts \\u00a7 946 (1951). That finding is not contested on appeal.\\n. The check for $8,613 was to have been sent with the letter; however, Mountain Bell's accounting department mailed the check without the letter. Upon learning that the check had already been mailed, Mountain Bell sent its letter, which reached Estate Landscape before it cashed the check from Mountain Bell. Estate Landscape admits that it knew that the letter was in reference to the check it had received from Mountain Bell but had not as yet cashed.\\n. Note that the check was not enclosed, but rather had erroneously been sent earlier. Estate Landscape admitted, however, that it recognized that the letter referred to the check it had earlier received from Mountain Bell.\\n. This course of action was not erroneous. See National Expositions v. Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987); British Caledonian Airways Ltd. v. First State Bank, 819 F.2d 593, 595 (5th Cir.1987); Pueblo of Santa Ana v. Mountain States Tel. & Tel. Co., 734 F.2d 1402, 1408 (10th Cir.1984), reversed on other grounds, 472 U.S. 237, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985); Giovanelli v. First Fed. Savs. & Loan Ass'n, 120 Ariz. 577, 587 P.2d 763, 768 (1978); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure \\u00a7 2720 at 29-35 (1983); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice \\u00b6 56.12 (1987).\\nIn the absence of a cross-motion, the trial court should', on its own initiative, assure that the moving party has had a fair opportunity to address the grounds for the adverse judgment. See Bonilla v. Nazario, 843 F.2d 34, 37 (1st Cir.1988). A careful practitioner would therefore file a cross-motion in an appropriate case, to avoid concerns over the adequacy of the movant's opportunity to address all of the material issues. In this case, the district court, and this court as well, hold that Mountain Bell failed to carry its burden in establishing an accord. Mountain Bell bore in essence that same burden both in seeking summary judgment in its favor and in avoiding an adverse summary judgment. We therefore conclude that it had ample opportunity to establish an accord but has not succeeded in doing so.\\n. Mascaro v. Davis, 741 P.2d 938 (Utah 1987); Sittner v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735, 736 (Utah 1984); Salt Lake City Corp. v. James Constructors, Inc., 761 P.2d 42, 44-45 (Utah Ct.App.1988); Conder v. A.L. Williams & Assocs., 739 P.2d 634, 636 (Utah Ct.App.1987); see also State v. Lamper, 779 P.2d 1125, 1129 (Utah 1989) (extraordinary intervening circumstances justifying reconsideration of a decided issue).\\n. See Branham v. Provo School Dist., 780 P.2d 810 (Utah 1989); Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989); Atlas Corp. v. Clovis Nat'l Bank, Til P.2d 225, 299 (Utah 1987); Lantz v. National Semiconductor Corp., 775 P.2d 937 (Utah Ct.App.1989).\\n. Because a summary judgment motion can be denied for at least two reasons, either because judgment is not merited or because factual issues preclude a grant of summary judgment, a trial court decision denying summary judgment should be expressed in a brief, written statement, identifying the grounds for denying summary judgment. See Utah R. Civ.P. 52(a). In part because of the tentatively slanted view on the facts, findings are not ordinarily made in resolving a motion for summary judgment, even if the motion is resolved on the merits. The main purpose of findings is to resolve material factual issues, Acton v. J.B. Deliran, 737 P.2d 996 (Utah 1987), and summary judgment cannot be granted if such issues exist. See Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah Ct.App.1989). Moreover, since the favorable factual viewpoint applied for summary judgment purposes is valid only for the motion at hand, the finality attributed to findings would perhaps tend to give too general a validity to a view of the facts that is entirely ad hoc.\\n. Wycalis v. Guardian Title of Utah, 780 P.2d 821, 824 (Utah Ct.App.1989), cert. denied, 789 P.2d 33 (1990).\\n. See Bennett v. Robinson's Medical Mart, Inc., 18 Utah 2d 186, 417 P.2d 761 (1966); Dillman v. Massey Ferguson, Inc., 13 Utah 2d 142, 369 P.2d 296 (1962); cf. Marton Remodeling v. lensen, 706 P.2d 607, 608-09 (Utah 1985); Allen-Howe Specialties v. U.S. Constr., Inc., 611 P.2d 705 (Utah 1980). While we recognize that Mountain Bell's letter may have had the effect of severing the contract, we do not reach that question, because, for lack of mutual assent, there was no contract to be severed.\\n.Quealy v. Anderson, 714 P.2d 667, 669 (Utah 1986) (\\\"The scope of an accord and satisfaction is determined by the intention of the parties. .\\\"); see Petersen v. Petersen, 709 P.2d 372, 375 (Utah 1985).\\n. We therefore affirm, but for a reason differing somewhat from the trial court's grounds for its decision. See Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988).\\n. Cf. Cove View Excavating & Constr. Co. v. Flynn, 758 P.2d 474 (Utah Ct.App.1988), in which the acceptance of the accord was effected by negotiating a check bearing an assent to the accord on its face.\\n. Crane v. Timberbrook Village, Ltd., 774 P.2d 3, 4 (Utah Ct.App.1989).\\n. See Mountain States Broadcasting Co. v. Neale, 783 P.2d 551, 554-55 (Utah Ct.App.1989) (construing a note as not providing for compound interest).\\n. See Utah Code Ann. \\u00a7 15-1-4 (1987); 47 CJ.S. Interest and Usury \\u00a7 24 (1982).\\n. Watkins & Faber v. Whiteley, 592 P.2d 613, 616 (Utah 1979); Mountain States Broadcasting Co., 783 P.2d at 555.\\n. See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1283 (Utah 1987).\\n. See Stroud v. Stroud, 758 P.2d 905 (Utah 1988), aff'g 738 P.2d 649 (Utah Ct.App.1987).\"}"

utah/10382316.json

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+"{\"id\": \"10382316\", \"name\": \"STATE of Utah, Plaintiff and Respondent, v. Ranala Leimani MANE, Defendant and Appellant\", \"name_abbreviation\": \"State v. Mane\", \"decision_date\": \"1989-11-14\", \"docket_number\": \"No. 890330-CA\", \"first_page\": \"61\", \"last_page\": \"67\", \"citations\": \"783 P.2d 61\", \"volume\": \"783\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:58:57.834017+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BENCH, BULLOCK and GREENWOOD, JJ.\", \"parties\": \"STATE of Utah, Plaintiff and Respondent, v. Ranala Leimani MANE, Defendant and Appellant.\", \"head_matter\": \"STATE of Utah, Plaintiff and Respondent, v. Ranala Leimani MANE, Defendant and Appellant.\\nNo. 890330-CA.\\nCourt of Appeals of Utah.\\nNov. 14, 1989.\\nMarla C. Jones and Stott P. Harston, Provo, for defendant and appellant.\\nR. Paul Van Dam and Charlene Barlow, Salt Lake City, for plaintiff and respondent.\\nBefore BENCH, BULLOCK and GREENWOOD, JJ.\\n. J. Robert Bullock, Senior District Judge, sitting by special appointment pursuant to Utah Code Ann. \\u00a7 78-3-24(10) (1989).\", \"word_count\": \"3678\", \"char_count\": \"22650\", \"text\": \"OPINION\\nGREENWOOD, Judge:\\nDefendant Ranala Leimani Mane appeals his conviction of murder in the second degree, in violation of Utah Code Ann. \\u00a7 76-5-203 (Supp.1989); attempted murder in the second degree, in violation of Utah Code Ann. \\u00a7 76-5-203, 76-4-101 and 76-4-102 (Supp.1989); and two counts of aggravated assault, in violation of Utah Code Ann. \\u00a7 76-5-103 (Supp.1989). Defendant urges reversal of his convictions, contending that he was erroneously charged, convicted, and sentenced for all four offenses, and that the trial court erred by improperly imposing sentencing enhancements for the use of a firearm, and by refusing to accept his pleas of guilty during the trial. We affirm.\\nOn December 19, 1987, defendant and Savelio Fuga went to the Silver Spur bar in Provo, Utah. Because of an altercation, they were ejected from the bar by Tom Tromley and Poponatui Fifita, who were employed as bouncers at the bar. Once outside the bar, defendant and Fuga threatened Tromley and Fifita. Defendant said he was going to get a gun and return to kill Tromley. Defendant and Fuga went to Fuga's house and picked up Fuga's .45 caliber semi-automatic pistol. Defendant and Fuga then picked up Lene Tauiliili. The threesome returned to the bar at approximately 12:45 a.m. The bar was then closing and bar patrons were leaving. While Fuga and Tauiliili stayed in the vehicle, defendant walked towards the bar's entrance with the gun.\\nTromley, who saw defendant approaching the bar, told Mike Brown, another bouncer employed at the bar, that the guy who had threatened to shoot Tromley was outside. Brown opened the door. Tromley was standing behind Brown with his hand on Brown's right shoulder. Scott Orr, a bar patron, was standing in the doorway along with several other people, preparing to leave the bar. Tromley told defendant he could not come in. Defendant smiled, raised the gun chest high, and fired. Brown was struck four times by gunshots and died soon thereafter. When defendant raised the gun, Tromley dove for the bar. After the initial shots, Tromley looked over his shoulder and saw defendant level the gun at him. He heard two more shots as he dove behind a video arcade machine at the bar. Tromley was not struck by the firing. Orr, who was directly behind Brown, was struck near his armpit. After firing the shots in the bar, defendant ran outside towards a group of patrons. When he reached the group, defendant, at approximately one foot's distance, pointed and fired his gun, striking Cliff Argyle in the back.\\nDefendant was charged with murder in the first degree for Brown's death, attempted murder for knowingly or intentionally attempting to cause Tromley's death, and two counts of aggravated assault for assaulting Argyle and Orr with a deadly weapon. The jury found defendant guilty of murder in the second degree, attempted murder, and both counts of aggravated assault. The trial court sentenced defendant to consecutive prison terms for the four convictions. The trial court also imposed consecutive sentence enhancements for each offense for defendant's use of a firearm.\\nI. MULTIPLE CHARGES, CONVICTIONS, AND SENTENCES\\nDefendant first contends that he was improperly charged, convicted, and sentenced for attempted murder and two counts of aggravated assault, in addition to the murder of Brown. Defendant argues that because the shootings were part of a single criminal episode, they should be treated as one act. He also contends that the offenses of attempted homicide and aggravated assault are lesser included offenses of the homicide offense. Defendant argues, therefore, that the trial court erred in refusing to dismiss the \\\"lesser charges\\\" during trial and in sentencing defendant for the lesser included offenses as well as for the greater crime of homicide. Although the State concedes the shootings were part of a single criminal episode, it insists the shootings were separate acts involving different victims and constitute offenses which do not stand in the relationship of greater and lesser offenses. The State 'asserts, therefore, that defendant was appropriately charged, convicted, and punished for the four offenses. We agree.\\na. Multiple victims of a single criminal episode and/or act.\\nUtah Code Ann. \\u00a7 76-1-402(1) (1978) states in pertinent part:\\nA defendant may be prosecuted in a single criminal action for all separate offenses arising out of a single criminal episode; however, when'the same act of a defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision....\\nFurther, Utah Code Ann. \\u00a7 76-1-601 (1978) includes several general definitions applicable to the criminal code, with the caveat that those definitions apply \\\"[u]nless otherwise provided or a different meaning plainly is required.\\\" Subsection (1) defines \\\"Act\\\" as \\\"a voluntary bodily movement.\\\" Therefore, we must determine if \\\"same act\\\" as used in section 76-1-402(1) means that defendant should have been prosecuted and convicted of less than all four offenses. In this case, intentionally shooting and killing Brown; firing at Tromley in an attempt to kill him; and then turning and running, stopping to fire at Argyle, were distinct voluntary bodily movements, or acts. As a result, section 76-1-402(1) permits separate charging and convictions for each of these separate acts, although they were committed within the same criminal episode.\\nHowever, characterizing the shooting of Orr as a separate act poses a somewhat different question. The record is unclear as to whether or not the bullet that struck Orr had already passed through the body of Brown. Consequently, it is possible that the same physical act of pulling the trigger of the gun once and discharging one bullet resulted in both Brown's death and Orr's injury. Defendant argues that because the same act resulted in both, he could be charged and prosecuted for only one offense, either homicide or assault.\\nHistorically, there has been disagreement among jurisdictions considering whether a single criminal act resulting in multiple victims constitutes a single offense or multiple offenses. R. Owens, Alabama's Minority Status: A Single Criminal Act Injuring Multiple Persons Con stitutes Only a Single Offense, 16 Cumb. L.Rev. 85 (1985-1986). Owens reported that as of 1985, thirty-three jurisdictions \\\"specifically endorse multiple convictions\\\" where there are multiple victims of a single criminal act, while only four disallowed such multiple convictions. Id. at 89-90. Since that time, at least two of the minority states have adopted the majority view. The Utah case cited by Owens as adopting the majority view is State v. James, 631 P.2d 854 (Utah 1981). In James, the Utah Supreme Court held that offenses committed against multiple victims are not the same for double jeopardy purposes. The court stated that \\\"[i]n crimes against the person (as contrasted with crimes against property), a single criminal act or episode may constitute as many offenses as there are victims.\\\" Id. at 855 (footnote omitted). The court explained as follows:\\nA defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled.\\nId. (quoting Neal v. State, 55 Cal.2d 11, 20, 357 P.2d 839, 844, 9 Cal.Rptr. 607, 612 (1960), cert. denied 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700 (1961)). The court noted that the kidnapping statute at issue referred to a singular victim, and therefore each kidnap victim gave rise to a separate offense. Id. The court did not, however, specifically address the language of section 76-1-402(1). In State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984), a case with facts similar to those herein, the Arizona Supreme Court determined that a defendant could properly be given separate consecutive sentences where he fired a single bullet which travelled through the body of one victim and hit another. The Arizona court held that the reasoning precluding application of double jeopardy also\\napplies when determining culpability for multiple aggravated assaults.... When the act of firing one bullet results in two persons being injured, the person firing the bullet is responsible for two separate and distinct injuries and therefore has committed two assaults. This is so even though he has only committed one act and may only have had one \\\"original\\\" intent.\\nId. at 1222.\\nDefendant in this case, as in James, was convicted in each instance of violating a statute referring to \\\"another,\\\" a singular victim. Also, the term \\\"same act\\\" as used in section 76-1-402(1) should be read in conjunction with the later statutory language in the same section, pertaining to offenses under different provisions of the code which may be violated by a single act. As implied in James, for example, the single act of shooting Brown could be chargeable as first degree homicide, negligent homicide, or manslaughter. However, the shooting of a second victim, albeit with the same bullet, is not an offense \\\"which may be punished in different ways under different provisions of this code,\\\" but is punishable as a separate offense. We do not believe that the legislature intended to preclude greater punishment where multiple victims exist. It is more reasonable to assume the legislature intended that culpability have a relationship to the magnitude of the crime committed, including consideration of the number of victims. Otherwise, one who placed a bomb in an airline resulting in the deaths of dozens of people would be less severely punished than one who repeatedly fired, a gun at a number of persons, with a similar resulting casualty figure. We, therefore, hold that \\\"act\\\" as used in section 76-1-402(1) includes not only volitional acts of a defendant, but also the number of victims, as each is acted upon by a defendant. In this case, a single bullet may have struck both Orr and Brown. Each striking was an \\\"act\\\" constituting a separate offense, allowing separate charges and convictions. Our holding is consistent with the majority rule that allows for multiple convictions when more than one person is injured or killed regardless of whether the injury or death resulted from an original intent or from a single act. State v. Couture, 194 Conn. 530, 482 A.2d 300, 319 (1984), cert. denied 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971; Vigil v. State, 563 P.2d 1344, 1351-53 (Wyo.1977); R. Owens, supra, at 106-07.\\nb. Lesser Included Offenses.\\nDefendant further argues that the multiple convictions violate Utah Code Ann. \\u00a7 76-1-402(3) (1978), which provides:\\nA defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:\\n(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.\\nDefendant urges that convicting him of all four offenses was error because the attempted homicide and assaults were lesser included offenses of homicide. However, it is clear that the attempted homicide and aggravated assaults are not lesser included offenses of either the capital homicide charge or defendant's second degree murder conviction. Commenting on section 76-1-402(3), the Utah Supreme Court stated that \\\"where the two crimes are 'such that the greater cannot be committed without necessarily having committed the lesser,' then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both.\\\" State v. Branch, 743 P.2d 1187, 1191 (Utah 1987), cert. denied, \\u2014 U.S. -, 108 S.Ct. 1597, 99 L.Ed.2d 911 (quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)). See also State v. Elliott, 641 P.2d 122, 123 (Utah 1982); State v. Williams, 636 P.2d 1092, 1096 (Utah 1981). In Branch, the court determined that aggravated assault was not a lesser included offense of aggravated robbery because \\\"[i]n this case, aggravated robbery and aggravated assault were simply two offenses committed within the same criminal episode. The crimes required proof by different evidence and had two different victims.\\\" Id. at 1191 (emphasis added). In Branch, as in the present case, defendant's crimes required proof by different evidence and there was more than one victim.\\nc. Merger Doctrine.\\nDefendant also argues that because the attempted homicide and aggravated assault charges against him were part of the aggravating circumstances which the State alleged elevated the homicide charge to first degree, he should not have been convicted and sentenced of both, as they were lesser and greater degrees of the same offense. Defendant, in effect, argues that the circumstances \\\"merge\\\" so that defendant should only have been convicted and sentenced for the most serious offenses.\\nDefendant cites State v. Shaffer, 725 P.2d 1301 (Utah 1986) in support of his claim regarding lesser included offenses. While the court discusses lesser included offenses in Shaffer, the companion doctrine of merger is determinative. In Shaffer, defendant was convicted and sentenced for both aggravated robbery and capital homicide. The court held that the aggravated robbery offense merged into the capital homicide, stating as follows:\\nThere can be no doubt that, standing alone, the crimes of aggravated robbery and first degree murder are separate offenses . However, under the test for separateness found in section 76-1-402(3), aggravated robbery becomes a lesser included offense of first degree felony murder where, in the situation such as the case at bar, the predicate felony for first degree murder is aggravated robbery. No additional facts or separate elements are required to prove aggravated robbery after first degree murder based on the predicate offense of aggravated robbery is shown.... If the greater crime is proven, then the lesser crime merges into it. Consequently, U.G.A., 1958, \\u00a7 76-1-402(3) prevents the defendant from being convicted and sentenced for aggravated robbery in addition to first degree murder where the aggravating circumstance is aggravated robbery.\\nId. at 1313-14 (footnote omitted). Shaffer is inapplicable to the present case because defendant was not convicted of capital homicide as charged, but instead, of second degree murder. Consequently, no predicate offense was required for that conviction and there is no appropriate conviction with which to merge.\\nd. Separate Sentences.\\nDefendant next urges that he should not have received separate sentences for each of the convictions. Utah Code Ann. \\u00a7 76-3-401(3) (1989) provides: \\\"A court may impose consecutive sentences for offenses arising out of a single criminal episode-\\\" In State v. O'Brien, 721 P.2d 896 (Utah 1986), defendant argued that his convictions stemmed from one criminal episode so he should have only been given one sentence. The court said:\\nA defendant may not be punished twice for a single act. Although defendants' crimes were committed during a single criminal episode, the crimes were a result of separate and distinct crimes. Thus, under . \\u00a7 76-3-401(3) . the trial judge was well within his discretion in sentencing defendants for four separate crimes.\\nId. at 900 (footnote omitted). We have already concluded that defendant committed four separate and distinct crimes. The court did not, therefore, err by imposing four consecutive sentences.\\nII. GUILTY PLEA\\nDefendant also maintains that the trial court erred by refusing to accept his pleas of guilty. After the State's case-in-chief, defendant offered to plead guilty to the aggravated assault charge involving Orr. The court rejected defendant's plea, stating the defendant could plead guilty only after he presented his defense to the jury but prior to the verdict. Defendant renewed the motion at the close of his case-in-chief, but the court denied the motion because defendant had just testified that he had no memory of any of his actions. Defendant then offered to plead guilty to the attempted homicide charge involving Tromley as victim on grounds that it was a lesser included offense of the capital charge involving Brown. The court denied this motion as well because defendant testified that he had no memory of his actions.\\nDefendant incorrectly insists the court was obligated to accept his guilty plea. Rule 11(e) of the Utah Rules of Criminal Procedure provides that \\\"[t]he court may refuse to accept a plea of guilty or no contest.\\\" Utah Code Ann. \\u00a7 77-35-ll(e) (Supp.1988) (repealed effective July 1, 1990). Nothing in the statute requires a court to accept a guilty plea and defendant has cited no case authority for that proposition. We conclude, therefore, the trial court did not abuse its discretion by refusing to accept defendant's guilty plea.\\nIII. SENTENCING ENHANCEMENT\\nFinally, defendant maintains the trial court erred in imposing sentencing enhancements for the use of a firearm for each of the felony convictions. The court imposed additional one year sentences for use of a firearm in the commission of the second degree murder and the attempted murder and additional indeterminate terms not to exceed five years for the use of a firearm in the commission of the aggravated assaults. Each enhancement for the four convictions was to run consecutively and not concurrently. Defendant argues that enhancing his sentences for offenses arising out of the same criminal episode is fundamentally unfair because it imposes double punishment. Consequently, defendant reasons that only a single enhancement ought to be imposed.\\nDefendant concedes that Utah law is not supportive of his position, but urges the court to follow other jurisdictional law, as a more fair approach. See, e.g., In re Culbreth, 17 Cal.3d 330, 551 P.2d 23, 130 Cal.Rptr. 719 (1976); State v. Howe, 26 Or.App. 743, 554 P.2d 605, 607 (1976). The cases defendant cites, however, rely on statutory provisions which are different from Utah's.\\nUtah Code Ann. \\u00a7 76-3-203 (Supp.1988) mandates sentencing enhancement for the use of a firearm in each first and second degree felony conviction and gives the court discretion to impose a sentencing enhancement for the use of a firearm in each third degree felony conviction. The statute provides in pertinent part:\\nA person who has been convicted of a felony may be sentenced to imprisonment for an indeterminate term as follows:\\n(1) In the case of a felony of the first degree, for a term at not less than five years, . and which may be for life but if the trier of fact finds a firearm . was used in the commission or furtherance of the felony, the court shall additionally sentence the person convicted for a term of one year to run consecutively and not concurrently; and the court may additionally sentence the person convicted for an indeterminate term not to exceed five years to run consecutively and not concurrently;\\n(2) In the case of a felony of the second degree, for a term at not less than one year nor more than 15 years but if the trier of fact finds a firearm . was used in the commission or furtherance of the felony, the court shall additionally sentence the person convicted for a term of one year to run consecutively and not concurrently; and the court may additionally sentence the person convicted for an indeterminate term not to exceed five years to run consecutively and not concurrently;\\n(3)In the case of a felony of the third degree, for a term not to exceed five years but if the trier of fact finds a firearm . was used in the commission or furtherance of the felony, the court may additionally sentence the person convicted for an indeterminate term not to exceed five years to run consecutively and not concurrently.\\nThe statute does not limit the firearm enhancement to only one enhancement for all crimes arising out of a single criminal episode. We cannot adopt the law of other jurisdictions in derogation of our legislature's clear sentencing procedure requirements. \\\"It is the prerogative of the legislature to prescribe the punishment for crimes. Included therein is the authority to increase the degree of crime, where instruments of violence, such as explosives or firearms are used.\\\" State v. Angus, 581 P.2d 992, 994-95 (Utah 1978) (footnote omitted). Because the jury found that a firearm had been used in the commission of each felony committed by defendant in this case, the trial court correctly imposed the enhancement.\\nAffirmed.\\nBULLOCK, J., concurs.\\nBENCH, J., concurs in the result.\\n. Utah Code Ann. \\u00a7 76-1-401 (1978) defines a \\\"single criminal episode\\\" as \\\"all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.\\\" In this case, the shootings were all part of a single criminal episode. They occurred in close proximity to each other and were incident to the attempt to murder Trom-ley.\\n. McKinney v. State, 511 So.2d 220, 225 (Ala.1987); Ex parte Rathmell, 717 S.W.2d 33, 36 (Tex.Crim.App.1986).\\n. Examples of lesser included offenses to criminal homicide, murder in the first degree, are found in the jury instructions given in this case. Instruction 4 gave the elements of the lesser included offense of criminal homicide, murder in the second degree. Instruction 8 gave the elements of manslaughter. These are correctly termed lesser included offenses of the capital charge because they involve the same victim and their elements could be established by proof of the same or less than all the facts required for commission of the capital offense. See Utah Code Ann. \\u00a7 76-1-402(3) (1978).\"}"

utah/10384281.json

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+"{\"id\": \"10384281\", \"name\": \"Robert D. IRVINE, Plaintiff and Appellant, v. SALT LAKE COUNTY, Sam Kastanis and John Does I-V, Defendants and Appellees\", \"name_abbreviation\": \"Irvine v. Salt Lake County\", \"decision_date\": \"1989-12-11\", \"docket_number\": \"No. 21053\", \"first_page\": \"411\", \"last_page\": \"414\", \"citations\": \"785 P.2d 411\", \"volume\": \"785\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:27:46.034586+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\", \"parties\": \"Robert D. IRVINE, Plaintiff and Appellant, v. SALT LAKE COUNTY, Sam Kastanis and John Does I-V, Defendants and Appellees.\", \"head_matter\": \"Robert D. IRVINE, Plaintiff and Appellant, v. SALT LAKE COUNTY, Sam Kastanis and John Does I-V, Defendants and Appellees.\\nNo. 21053.\\nSupreme Court of Utah.\\nDec. 11, 1989.\\nMichael J. Mazuran, Michael Z. Hayes, Alan B. Asay, Mark F. Bell, Salt Lake City, for plaintiff and appellant.\\nDavid E. Yocum, Kevan F. Smith, Salt Lake City, for defendants and appellees.\", \"word_count\": \"1167\", \"char_count\": \"7102\", \"text\": \"STEWART, Justice:\\nOn March 30, 1983, Sam Kastanis, an employee of Salt Lake County, was engaged in dredging a creek in Little Cottonwood Canyon near Salt Lake City with a backhoe. Kastanis operated the backhoe on Irvine's property with Irvine's consent. While Kastanis was clearing the stream, the backhoe struck and damaged Irvine's water line under the creek bed. Irvine filed a complaint against the County and Kastanis, seeking damages of $10,188.41. The complaint was dismissed after a one-day bench trial, and Irvine appeals.\\nKastanis was acting pursuant to a regular program of dredging stream channels to clear away silt, gravel deposits, debris, and other matter which obstruct the flow of water in the creek. The trial court found that the County was \\\"dredging Little Cottonwood Creek in order to prepare it for the snowmelt runoff expected in the spring of 1983.\\\"\\nConflicting testimony was presented at trial as to whose negligence produced the damages. Irvine claims that the County through its employee, knew of the location and depth of the line and negligently struck it. The County and Kastanis deny negligence and allege that Irvine, the landowner, gave improper instructions as to the location of the pipeline. The trial court made no findings of fact and conclusions of law regarding the negligence of the defendants.\\nAt trial, the defendants relied primarily upon the defense of governmental immunity for flood control activities, as found in the 1984 amendment to Utah Code Ann. \\u00a7 63-30-3 (1989). The trial court ruled that the amendment to \\u00a7 63-30-3 should be applied retroactively and that the County's conduct was immune under that amendment. On that ground, the trial court dismissed the complaint.\\nThe conduct giving rise to this cause of action occurred March 30, 1983. The amendment to \\u00a7 63-30-3 relating to the management of flood waters became effective on March 29, 1984. 1984 Utah Laws ch. 33. Whatever additional protection the 1984 amendment to \\u00a7 63-30-3 gave Salt Lake County as to future acts cannot be applied retroactively to bar a valid cause of action that had already arisen when the amendment went into effect.\\nIt is well established that a statute or an amendment to a statute will not be applied retroactively to deprive a party of substantive rights or to impose on a party a greater liability. In Okland Construction Co. v. Industrial Commission, 520 P.2d 208 (Utah 1974), we stated:\\nIt is true, as the employer Okland contends: that it is entitled to have its rights determined on the basis of the law as it existed at the time of the occurrence; and that a later statute or amendment should not be applied in a retroactive manner to deprive a party of his rights or impose greater liability upon him.\\n520 P.2d at 210; see Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah 1985) (once a cause of action accrues under one rule, the right to that cause of action vests); State Dep't of Social Services v. Higgs, 656 P.2d 998, 1000 (Utah 1982) (\\\"[T]he substantive law to be applied throughout an action is the law in effect at the date the action was initiated.\\\"); State v. Kelbach, 569 P.2d 1100, 1102 (Utah 1977) (\\\"[F]airness and good conscience require that [a law] should not be applied retroactively to adversely affect rights as they existed at the time a particular controversy arose.\\\"). Accordingly, we apply the law of governmental immunity as it existed in March of 1983, the time this cause of action arose.\\nOn remand, the only real question under the Governmental Immunity Act is whether there has been a waiver of immunity. Section 63-30-10(1) will be disposi-tive of that issue. Hence, we will address that question here.\\nThe County's immunity from suit is waived by Utah Code Ann. \\u00a7 63-30-10(1)(a) (1989). That subsection provides:\\n(1) Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury:\\n(a) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused; .\\nPlaintiff's claim falls within the scope of subsection (1), unless one of the exceptions to that provision applies. The County contends that its alleged negligence \\\"arises out of . a discretionary function\\\" in subsection (1)(a) of \\u00a7 63-30-10 and that it is immune, notwithstanding the waiver in subsection (1).\\nIn Frank v. State, 613 P.2d 517 (Utah 1980), the Court stated that the discretionary exception to immunity for negligent governmental acts was intended to provide immunity for policy-making decisions rather than for policy implementation or operational acts. Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983), adopted the following four-element test in defining \\\"discretionary function\\\":\\n(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?\\n(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?\\n(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?\\n(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?\\nThe alleged negligent conduct in this case \\u2014 the manner of dredging the creek\\u2014 was not part of a policy-making decision. There was nothing in the manner in which the creek was dredged that was essential to a governmental objective, and the act complained of did not require a basic policy evaluation. In short, this case does not fall within the discretionary function exception.\\nPursuant to the Court's request, Irvine and the defendants filed supplemental briefs and argued the applicability of the eminent domain provision in the Utah Constitution, Article I, section 22: \\\"Private property shall not be taken or damaged for public use without just compensation.\\\" Since the issue may be decided on statutory construction grounds, we need not reach the constitutional issue.\\nIn sum, this action is not barred by the amendment to \\u00a7 63-30-3, and the discretionary function exception . of \\u00a7 63\\u201430\\u201410(1)(a) does not apply.\\nReversed and remanded.\\nHALL, C.J., HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\\n. We state no opinion as to what additional immunity the second paragraph of \\u00a7 63-30-3 would provide if it applied to this action.\"}"

utah/10392560.json

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+"{\"id\": \"10392560\", \"name\": \"PROVO CITY CORPORATION, Plaintiff and Appellee, v. Rulon Duane WILLDEN, Defendant and Appellant\", \"name_abbreviation\": \"Provo City Corp. v. Willden\", \"decision_date\": \"1989-01-23\", \"docket_number\": \"No. 20983\", \"first_page\": \"455\", \"last_page\": \"461\", \"citations\": \"768 P.2d 455\", \"volume\": \"768\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:10:20.309118+00:00\", \"provenance\": \"CAP\", \"judges\": \"STEWART and DURHAM, JJ., concur.\", \"parties\": \"PROVO CITY CORPORATION, Plaintiff and Appellee, v. Rulon Duane WILLDEN, Defendant and Appellant.\", \"head_matter\": \"PROVO CITY CORPORATION, Plaintiff and Appellee, v. Rulon Duane WILLDEN, Defendant and Appellant.\\nNo. 20983.\\nSupreme Court of Utah.\\nJan. 23, 1989.\\nW. Andrew McCullough, Orem, for defendant and appellant.\\nJames Brady, Vernon F. (Rick) Romney, Provo, for plaintiff and appellee.\", \"word_count\": \"3977\", \"char_count\": \"24633\", \"text\": \"ZIMMERMAN, Justice:\\nDefendant Rulon Duane Willden appeals his conviction of soliciting sexual conduct in violation of section 12.45.010 of the Provo City ordinances. He claims that section 12.45.010 is unconstitutionally overbroad. We agree that the ordinance violates the free speech clause of the first amendment to the United States Constitution, U.S. Const, amend. I, and we reverse the conviction.\\nWillden placed written notices in several public restrooms stating that he wanted others interested in engaging in homosexual acts to call him. A Provo police officer called the posted telephone number and made arrangements to meet with Willden at his home. At the meeting, the officer arrested Willden for soliciting sexual conduct in violation of section 12.45.010.\\nWillden was tried before an Eighth Circuit Court judge sitting without a jury and was convicted. He appealed to the Fourth District Court, which affirmed. The district court rejected Willden's first amendment challenge to the ordinance, holding that he lacked standing to attack it as facially unconstitutional, that even if Willden had standing, the ordinance is constitutionally sound, and that, in any event, Willden's conduct fit squarely within the legitimate proscriptions of the ordinance.\\nOn appeal, Willden again mounts a facial challenge to the ordinance. He contends that the ordinance is overbroad in that its language plainly prohibits speech protected by the first amendment to the United States Constitution; consequently, Willden argues, the ordinance must be struck down in its entirety, even though a properly drawn statute might be constitutionally applied to prohibit his conduct. Provo City (\\\"the City\\\") argues that Willden lacks standing to mount a facial challenge to the ordinance and, in any event, that the ordinance, if properly construed, does not prohibit speech protected by the first amendment.\\nWe note the appropriate standard of review at the outset. Because the resolution of this case depends entirely on questions of law, we accord no particular deference to the rulings of the circuit and district courts on any of the points presented. E.g., Scharf v. BMG Cong., 700 P.2d 1068, 1070 (Utah 1985).\\nThe first question is whether Willden has standing to mount a facial challenge to the ordinance. At least in the free speech area, some of our prior cases on standing appear to have generally followed the rather narrow standing doctrines developed by the federal courts and may appear to be premised on the assumption that we are bound by those federal rules. See, e.g., State v. Jordan, 665 P.2d 1280, 1283-84 (Utah), appeal dismissed sub nom., Fullmer v. Utah, 464 U.S. 910, 104 S.Ct. 266, 78 L.Ed.2d 249 (1983). However, the federal rules on standing, as such, are not binding on state courts, and the article III constitutional restrictions and federalistic prudential considerations that have guided the evolution of federal court standing law are not necessarily relevant to the development of the standing rules that apply in Utah's state courts. See, e.g., Jenkins v. Swan, 675 P.2d 1145, 1149 (Utah 1983); Utah Restaurant Ass'n v. Davis County Bd. of Health, 709 P.2d 1159, 1162-63 (Utah 1985); cf. Society of Prof Journalists v. Bullock, 743 P.2d 1166, 1170-77 (Utah 1987) (developing special standing rules for persons seeking appellate review by writ rather than by direct appeal). As the United States Supreme Court recently stated:\\n[T]he special limitations that Article III of the Constitution imposes on the jurisdiction of the federal courts are not binding on the state courts. {See Pennell v. San Jose, 485 U.S. 1, 108 S.Ct. 849, 855-56, 99 L.Ed.2d 1 (1988) ]. The States are thus left free as a matter of their own procedural law to determine whether their courts may issue advisory opinions or to determine matters that would not satisfy the more stringent requirement in the federal courts that an actual \\\"case\\\" or \\\"controversy\\\" be presented for resolution.\\nNew York State Club Ass'n v. City of New York, \\u2014 U.S.-, 108 S.Ct. 2225, 2231 n. 2, 101 L.Ed.2d 1 (1988); see also L. Tribe, American Constitutional Law \\u00a7 3-15, at 111-13 & n. 10 (2d ed. 1988); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction 2d \\u00a7 3531, at 339 n. 1 (2d ed. 1984) [hereinafter \\\"Wright, Miller & Cooper\\\"].\\nWhile we are not bound to adhere strictly to the warp and woof of federal standing rules, the federal courts have developed \\\"useful principles\\\" from which we can profitably borrow in fashioning standing rules suited to the needs of the courts of this state. Utah Restaurant Ass'n, 709 P.2d at 1162-63; see, e.g., Jenkins, 675 P.2d at 1149-50; Society of Prof. Journalists, 743 P.2d at 1175 n. 10. One aspect of general standing doctrine we share with the federal courts is the basic requirement that the complainant show \\\" 'some distinct and palpable injury that gives him [or her] a personal stake in the outcome of the legal dispute.' \\\" Society of Prof. Journalists, 743 P.2d at 1170 (quoting Jenkins, 675 P.2d at 1148). There is no question that Willden meets this standing test. He has been convicted and sentenced under the ordinance he challenges. He indisputably has standing to challenge the ordinance, at least as it has been applied to him.\\nHowever, Willden's challenge is more sweeping. He contends that the ordinance as written sweeps so broadly in its prohibitions that it criminalizes behavior protected by the first amendment and, therefore, should be struck down as being invalid on its face, even if his particular conduct could properly be criminalized. In support of his claim of standing to challenge the ordinance on its face \\u2014 in effect, to assert the first amendment rights of others not before the court whose conduct could not properly be criminalized consistent with the first amendment \\u2014 Willden relies on the federal first amendment \\\"overbreadth\\\" standing doctrine, designed to give standing to anyone who is subject to an overbroad statute that chills the exercise of first amendment rights of others. The rationale for granting such standing is that the constitutionally protected interests infringed by such statutes are so important that their protection need not await the perfect plaintiff. See, e.g., New York v. Ferber, 458 U.S. 747, 768-69, 102 S.Ct. 3348, 3360-61, 73 L.Ed.2d 1113 (1982); cf. Jenkins, 675 P.2d at 1150-51 (stating that we may allow standing to an otherwise inappropriate litigant if the issues are sufficiently important). However, an interest in comity and a concern for federalism have prompted the federal courts to limit this broadened standing to cases where a statute's deterrent effect on protected speech is real and substantial and the challenged statute is not \\\" 'readily subject to a narrowing construction by the state courts.' \\\" State v. Jordan, 665 P.2d at 1284 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975)); accord Young v. American Mini Theatres, Inc., 427 U.S. 50, 59-60, 96 S.Ct. 2440, 2446-2447, 49 L.Ed.2d 310, reh'g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976).\\nThe City assumes that the \\\"overbreadth\\\" doctrine applies in Utah courts, but argues that the ordinance in question can be narrowly construed to avoid impinging on first amendment freedoms while still prohibiting Willden's behavior. Assuming for pur poses of argument the general applicability of these federal first amendment standing principles under Utah law, see State v. Jordan, 665 P.2d at 1283-84; Jenkins, 675 P.2d at 1149-50, Willden's standing to challenge the ordinance on its face hinges upon whether the ordinance is susceptible to such a narrowing construction.\\nThis Court seeks to construe laws so as to carry out the legislative intent while avoiding constitutional conflicts. In re a Criminal Investigation, 7th Dist. Ct. No. CS-1, 754 P.2d 633, 640 (Utah 1988). However, in seeking a constitutional construction, we will not rewrite a statute or ignore its plain intent. Id. \\\"A fundamental principle of statutory construction is that unambiguous language in the statute itself may not be interpreted so as to contradict its plain meaning.\\\" Johnson v. Utah State Retirement Bd., 770 P.2d 93, 95, 91 Utah Adv.Rep. 8, 9 (1988).\\nThe ordinance at issue purports to make illegal solicitation to engage in, as well as actually engaging in, a wide variety of conduct, much of which is constitutionally protected. The City contends that this ordinance can be construed so as to eliminate its patent constitutional inadequacies while still carrying out the expressed intent of the drafters. It has been suggested that the ordinance can be read to prohibit only public solicitation of \\\"unlawful\\\" sexual conduct to be carried out in a public place. We think such a construction would do impermissible violence to the clear language of the ordinance.\\nAs Willden points out, the ordinance quite plainly prohibits a husband or wife from discreetly suggesting to his or her spouse in whispers while strolling in a public park that they later engage in sexual intercourse in the privacy of their own home. In addition, the solicitation of a wide variety of other activities the ordinance defines as \\\"sexual conduct\\\" is also prohibited. That definition includes, inter alia, \\\"any touching of the covered or uncovered genitals, human female breast, pubic areas or buttocks of the human male or female . between members of the . opposite sex . in an act of apparent sexual stimulation or gratification.\\\" To our knowledge, this state has no statutes that purport to make the wide variety of conduct described by the quoted language illegal between married couples or, for that matter, between unmarried adults, when carried out in private. It follows that a municipality's flat ban on the public solicitation of all such private activity is a content-based speech regulation that runs afoul of the first amendment. See, e.g., American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 327-32, 334 (7th Cir.1985), aff'd, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291, reh'g denied, 475 U.S. 1132, 106 S.Ct. 1664, 90 L.Ed.2d 206 (1986). No matter how we strain, we cannot find a legitimate construction of the ordinance's clear and explicit language that will bring it within constitutional limits. The ordinance plainly is one that involves substantial overbreadth and is invalid on its face under the New York v. Ferber rationale. 458 U.S. at 768-72, 102 S.Ct. at 3360-63. It also follows that since the ordinance cannot be given a limiting construction that will apply only to unprotected activity, Willden has standing to attack it facially. See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954-59, 104 S.Ct. 2839, 2845-48, 81 L.Ed.2d 786 (1984); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-04, 105 S.Ct. 2794, 2801-02, 86 L.Ed.2d 394 (1985) (stating that a substantially overbroad law may not be enforced against anyone).\\nWe sympathize with the City's interest in maintaining decorous public conduct, particularly its interest in preventing the publicly offensive behavior that led to Willden's arrest. Unfortunately, in its zeal to eliminate such offensive behavior, the City has chosen to fashion a tool that sweeps far too deeply into the protected province of the first amendment. See, e.g., State v. Tusek, 52 Or.App. 997, 630 P.2d 892 (1981) (holding that an Oregon statute that clearly criminalized public solicitation of private noncriminal sexual activity violated the first amendment).\\nThe ordinance is struck down as unconstitutional,. and the conviction is reversed.\\nSTEWART and DURHAM, JJ., concur.\\n. Section 12.45.010 of the Revised Ordinances of Provo City provides:\\nUnlawful Sex Acts, (a) It shall be unlawful for any person, in public or in a public place, to exhibit or expose his or her genitals, or to engage in, or to solicit another to engage in, any sexual conduct as defined herein.\\n(b) \\\"Sexual conduct\\\" means human masturbation, sexual intercourse, or any touching of the covered or uncovered genitals,- human female breast, pubic areas or buttocks of the human male or female, whether alone or between members of the same or opposite sex or between humans and animals, in an act of apparent sexual stimulation or gratification, which terms shall include, but not be limited to fellatio, cunnilingus, pederasty and bestiality-\\nSection 12.44.020(16) defines \\\"public place\\\" as:\\nA place accessible or visible to members of the public or to casual passersby; or any place where a fee or charge is made for entrance or membership.\\n. Willden also cites the free speech guarantees of the Utah Constitution, Utah Const, art. I, \\u00a7 15. However, he makes no argument that the state provision should be interpreted any differently than the federal provision, and he cites no authorities addressing the state provision. Therefore, we choose to confine our analysis to his arguments based on the first amendment. See State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988); State v. Bingham, 684 P.2d 43, 45 (Utah 1984). We leave for another day the question of how we might treat the merits of a challenge to the ordinance under article I, section 15, which, by its terms, is somewhat broader than the federal clause. Article I, section 15 provides in relevant part: \\\"No law shall be passed to abridge or restrain the freedom of speech or of the press.\\\" Utah Const, art. I, \\u00a7 15.\\n. Only if the ordinance is susceptible to such a narrowing construction need we consider an issue our cases such as Jordan have yet to fully address: whether this precondition to over-breadth standing makes sense in the context of our emerging state law of standing.\\nIn reviewing the federal cases, it is apparent that to some degree, their restrictive standing rules reflect a desire to avoid undue federal interference with state government and a desire to give deference to the final authority of state courts to construe state statutes in a manner that may eliminate federal constitutional defects. See Wright, Miller & Cooper, \\u00a7 3531.3, at 412 & n. 20. A state court forging its own law of standing would, of course, have a significantly different perspective on those federalism and comity concerns.\"}"

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+"{\"id\": \"10395852\", \"name\": \"STATE of Utah, Plaintiff and Respondent, v. Scott BRAUN, Defendant and Appellant\", \"name_abbreviation\": \"State v. Braun\", \"decision_date\": \"1990-02-20\", \"docket_number\": \"No. 890150-CA\", \"first_page\": \"1336\", \"last_page\": \"1343\", \"citations\": \"787 P.2d 1336\", \"volume\": \"787\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:20:32.898824+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DAVIDSON, BILLINGS and ORME, JJ.\", \"parties\": \"STATE of Utah, Plaintiff and Respondent, v. Scott BRAUN, Defendant and Appellant.\", \"head_matter\": \"STATE of Utah, Plaintiff and Respondent, v. Scott BRAUN, Defendant and Appellant.\\nNo. 890150-CA.\\nCourt of Appeals of Utah.\\nFeb. 20, 1990.\\nMichael J. Petro, Provo, for defendant and appellant.\\nR. Paul Van Dam and David Thompson, Salt Lake City, for plaintiff and respondent.\\nBefore DAVIDSON, BILLINGS and ORME, JJ.\", \"word_count\": \"4516\", \"char_count\": \"27325\", \"text\": \"BILLINGS, Judge:\\nDefendant Scott Braun was charged with one count of object rape of a child, a first degree felony, in violation of Utah Code Ann. \\u00a7 76-5-402.3 (1989), and two counts of sexual abuse of a child, a second degree felony, under Utah Code Ann. \\u00a7 76-5-404.1 (1989), all counts involving his two daughters. A jury found defendant guilty of one count of sexual abuse of a child and acquitted him of the other two charges. Defendant appeals his conviction. We affirm.\\nWe focus on the facts surrounding defendant's conviction of one count of sexual abuse of his daughter (\\\"A.B.\\\"), as he was acquitted on the other counts.\\nA.B. was five years old at the time of the alleged abuse. At trial, she testified that her father took her into his bedroom and placed her on his bed. She testified she had no pants on, only a T-shirt. A.B. then testified that her father played a \\\"game\\\" called \\\"Beep Beep,\\\" where he would touch her \\\"belly button\\\" twice and then touch her vagina. She testified that her father told her that he would \\\"smack\\\" her if she told anyone what had happened.\\nIn addition to A.B.'s testimony, the state relied upon the expert testimony of Dr. William Palmer, a physician, and Dr. Ann Tyler, a psychologist. Dr. Palmer repeated what A.B. had told him about the abuse and then described the findings of his physical examination of A.B. He then testified that the results of his physical examination of A.B. were consistent with her story as to the object rape charge.\\nDr. Tyler related the substance of her interviews with A.B. and commented on A.B.'s affect, compared A.B. to profiles of typical sexual abuse victims, and expressed her opinion that A.B. was a victim of sexual abuse.\\nPrior to trial, defendant requested an independent psychological evaluation of A.B. After hearing testimony concerning the possible trauma the child might suffer if examined by yet another expert, the trial court denied the request. However, the trial court allowed defendant's expert to comment on the video testimony of A.B.'s interview by the state's expert and to testify at length about the techniques used by the state's expert.\\nIn addition to the expert witnesses, A.B.'s testimony was corroborated by her mother, Betsy Braun, and Betsy's friend, Cheryl Dagang, who both testified about conversations with A.B. and observations of A.B. and her sister which were consistent with the child's version of the events.\\nBased on this testimony, a jury convicted defendant of one count of sexual abuse. The trial judge sentenced defendant to a term of one to fifteen years in prison, but stayed the sentence and placed defendant on eighteen months' probation. This appeal followed. On appeal, defendant claims the trial court erred in (1) allowing expert opinion testimony on the credibility of A.B. and on whether A.B. had been sexually abused; and (2) denying defendant's motion to have an independent or court-appointed psychiatric or psychological evaluation of A.B.\\nI. EXPERT OPINION TESTIMONY\\nDefendant contends the trial court erred in admitting expert testimony (1) on the credibility of the child, and (2) that the child was a victim of sexual abuse. The state answers that even if it was error, defendant did not object to the improper testimony at trial and, thus, cannot raise these issues on appeal. Defendant responds that he properly preserved his objections or, alternatively, that the admission of this defective expert opinion testimony was plain error and, thus, we should address the issues for the first time on appeal.\\nAt the outset we note that \\\"[w]e will not disturb the trial court's rulings regarding the admissibility of evidence unless it clearly appears that the lower court was in error.\\\" Beldon v. Dalbo, Inc., 752 P.2d 1317, 1319 (Utah Ct.App.1988); see also State v. Gray, 717 P.2d 1313, 1316 (Utah 1986). Guided by this standard, we first determine if the admission of the expert opinion testimony was error.\\nThe seminal case in this area is State v. Rimmasch, 775 P.2d 388 (Utah 1989). In Rimmasch, the defendant was convicted of forcible sexual abuse, rape, forcible sodomy, and incest of a child, based, in part, on expert opinion testimony, objected to by defendant at trial, that the child had been abused. In analyzing the challenged expert testimony, the Rimmasch court discussed three distinct categories: (1) testimony concerning the truthfulness of a child witness on a particular occasion, (2) testimony that there is a psychological and behavioral profile of the typical child sexual abuse victim, and that the victim conformed to the profile and therefore had been abused; and (3) testimony that, based on the expert's subjective \\\"credibility appraisal\\\" of the child during an interview, the child had truthfully described the abuse and therefore had been abused.\\nFocusing on the first area, the Rim-masch court held Dr. Tyler's testimony ran \\\"afoul of Rule 608(a),\\\" id. at 392, since she commented on the truthfulness of the child victim on a particular occasion. The court specifically condemned Dr. Tyler's testimony that a child typically does not give such detailed information as the victim gave unless the child had experienced the abuse. Id. at 393. The court also expressed concern about her statement that she thought the child victim had nothing to gain by lying about the abuse. Id.\\nThe court rejected the second and third type of \\\"scientific\\\" opinion testimony, con-eluding the state had not laid an adequate foundation to establish the reliability of the expert testimony to the effect that the child matched the profile of an abused child or, based on their expert \\\"credibility appraisal,\\\" that she had truthfully described incidents of abuse and, therefore, had been abused. The Rimmasch court concluded that neither \\\"credibility assessment\\\" testimony nor child abuse profile testimony has been generally accepted by the legal or scientific communities, nor could the court say it was nevertheless inherently reliable and, therefore, judicial notice of the reliability of such opinion evidence would be inappropriate. Id. at 403. The court found the admission of this unreliable expert testimony violated Utah Rule of Evidence 702. Id.\\nIn discussing the \\\"scientific\\\" expert testimony concerning the profile of a typical sexual abuse victim offered by Dr. Palmer and Dr. Tyler, the same experts who testified in this case, the court found \\\"little foundation was offered or demanded by the court as to the scientific basis for the profile of the typical sexually abused child, [or] the ability of the profile to sort the abused from the nonabused with any degree of accuracy.\\\" Id. at 395.\\nFinally, in discussing the \\\"credibility appraisal\\\" of the child victim made by the experts, the court concluded that \\\"nothing has come to our attention suggesting a general acceptance of the proposition that those who regularly treat symptoms of sexual abuse are capable of determining with a high degree of reliability the truthfulness of allegations that one has been abused.\\\" Id. at 406. The court ultimately concluded that the cumulative evidentiary errors were harmful error and, thus, reversed and remanded the case for retrial. Id. at 407-08.\\nIn State v. Van Matre, 777 P.2d 459 (Utah 1989), the Utah Supreme Court again reversed a conviction for sexual abuse of a child and sodomy based upon the improper admission of expert opinion evidence. The court concluded that, under Rimmasch, \\\"it was reversible error to permit the experts to assess [the child's] credibility and to testify that [the child] matched certain profile characteristics of a typical sex abuse victim.\\\" Id. at 461. Summarizing its holding in Rimmasch, the court stated:\\nWe concluded . that experts may not give a direct opinion about the truthfulness of a child's description of the incidents of sexual abuse. We determined also that the inherent reliability of the scientific principles and techniques upon which credibility appraisals and profile-based opinion testimony are predicated must be determined before a trial court can admit that evidence.\\nId. Interestingly, the court does not comment on whether defendant had objected to this testimony at trial.\\nIn State v. Nelson, 777 P.2d 479 (Utah 1989), the court reversed a sodomy on a child conviction because it found error in the admission of expert testimony evaluating the credibility of the victim's out-of-court statements. The expert witness attempted to satisfy the foundational requirements subsequently delineated in Rim-masch for a \\\"credibility assessment\\\" by detailing the methodology he used in determining whether a person was telling the truth. He testified that he considered internal consistency, external consistency, the amount of detail, and the child's motivation. Id. at 480-81. He applied these factors to the victim's statements and concluded the child was telling the truth. Id. at 481. The court concluded, however, that under Rimmasch, there was inadequate foundation as to the reliability of the expert's methodology. Id.\\nWe now measure the expert opinion testimony admitted in this ease against the yardstick provided by Rimmasch and its progeny to determine whether the expert opinion testimony was admitted in violation of rules 608(a) or 702.\\nA. Dr. Palmer's Testimony\\nIn his brief on appeal, defendant contends Dr. Palmer testified that A.B. had been sexually abused. The record does not support his claim. At trial, defense counsel objected when Dr. Palmer was asked if he believed the child had been sexually abused and Dr. Palmer never responded to the question. The question actually asked and answered by Dr. Palmer, without objection, was rather whether the doctor's findings, based on his physical examination of A.B., were consistent with her out-of-court statements to him. Furthermore, the testiinony defendant complains about on appeal was' directed to the object rape charge of A.B. of which defendant was acquitted and which is not at issue on appeal.\\nB. Dr. Tyler's Testimony\\nDefendant also claims that the court erred in admitting the testimony of Dr. Tyler concerning the credibility of the child and that the child exhibited characteristics which matched the profile of a sexually abused child and, thus, had been abused. Defendant asserts that the state did not lay a proper foundation for Dr. Tyler's testimony under rule 702 as required by Rim-masch.\\nDr. Tyler did not comment directly on whether A.B. was telling the truth and we therefore find no rule 608(a) problem. However, she did, through the use of a \\\"scientific credibility assessment,\\\" conclude A.B. had truthfully described the incidents of abuse. In her \\\"credibility assessment,\\\" Dr. Tyler considered many of the nebulous psychological criteria condemned in Rimmasch. Dr. Tyler also testified extensively on the profile of a sexually abused child and baldly asserted these profiles are generally accepted in her profes sion. Dr. Tyler ultimately testified that A.B. matched the profile of a sexually abused child and, thus, she concluded A.B. had been sexually abused. The state offered no foundational testimony as to the scientific reliability or general acceptability for the use of either the sexual abuse profile or the \\\"credibility assessment\\\" testimony. See Rimmasch, 115 P.2d at 403. In sum, Dr. Tyler's testimony in this case was substantially the same as her opinion testimony condemned as lacking foundation under rule 702 in Rimmasch. Therefore, we conclude it was error for the trial court to have admitted her testimony.\\nII. CONSIDERATION OP ERROR ON APPEAL\\nA. Proper Objections\\nDefendant contends that his counsel made timely, specific objections to the testimony of both of the state's expert witnesses. We do not discuss the objections to Dr. Palmer's testimony as we have previously found that any error in admitting Dr. Palmer's testimony was not relevant to defendant's conviction of sexual abuse of A.B.\\nUpon a careful review of the trial record, we also find that defendant failed to lodge a timely and specific objection to the inadmissible testimony 'of Dr. Tyler. Defendant requested the trial court to bar Dr. Tyler from testifying. However, defendant's motion was based upon the state's failure to provide the defense with an updated statement of her testimony as a result of her interview with the child just prior to trial.\\nDefendant also claims that, during the earlier testimony of Dr. Palmer, he had preserved a continuing objection to any expert testimony on whether the child had been sexually abused. The precise exchange, with our emphasis, follows:\\nQ [MR. HANSEN]: After the results of your examination and your interview with [A.B.] do you have an opinion as to whether or not she was sexually abused?\\nMR. PETRO: Your Honor I object to that question. He has never laid any foundation that he is qualified to answer that question and I would object to it. He is certainly not qualified. He has not been trained as a psychologist and not qualified to answer that question? That issue has been before the Supreme Court?\\nTHE COURT: Mr. Hansen?\\nMR. HANSEN: He testified about the number of examinations he had the clinical experience that he had that he is the director now of the Child Protection Team at the Primary Children's Hospital. That in the course of his employment and his duties he conducts numerous interviews and evaluations and examinations of sexually abused children. He went into his qualifications in this particular area. He has had an opportunity now to conduct physical evaluations of this girl and also an interview with her. She now has indicated to him what has happened to her. Based on the results of his evaluations and his interviews I am now asking him what his opinion is?\\nMR. PETRO: Your Honor that issue has gone up before the Supreme Court on the same exact issue and they laid exactly the same foundation and asked exactly the same question of Dr. Palmer and the Supreme Court said that he was not qualified to do it based on the foundation they had laid. He is not a trained psychologist to interpret all the responses of the child set forth and he cannot render an opinion on whether or not the child has been abused. All he can really say is that the physical findings are consistent with what the child said. He is not qualified to examine the statements of the child and determine whether or not the child is telling the truth or not.\\nWe cannot read this as a continuing objection to all expert testimony as to whether the child had been abused. Defense counsel did not point out to the court that he objected generally to this type of opinion testimony or ask that his objection apply to any expert witness testifying as to whether the child had been sexually abused. In fact, defense counsel specifically stated that Dr. Palmer was not a psychologist so he could not answer the question, inferring that he believed a psychologist, such as Dr. Tyler, could testify in this area.\\nThus, defendant objected to the admission of Dr. Tyler's testimony solely on the basis of a discovery violation. Defendant's objection certainly cannot be said to have alerted the trial court to the foundational problem of Dr. Tyler's testimony under rule 702 and, thus, he did not preserve the objections he now asserts on appeal. See State v. Eldredge, 773 P.2d 29, 35 (Utah 1989), cert. denied, \\u2014 U.S. -, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989) (\\\"[a]n objection based on competency does not call the trial court's attention to the reliability issue\\\").\\nB. Plain Error\\nHowever, this does not end our inquiry since we can still cure the error on appeal if we believe the trial court committed plain error. See Eldredge, 773 P.2d at 35. See also State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Steggell, 660 P.2d 252, 254 (Utah 1983). Defendant contends that the errors constitute plain error, pointing to the policy underlying plain error \\u2014 to allow the court to reach justice in a given case. Eldredge, 773 P.2d at 35 n. 8. The state answers that any error made in the admission of Dr. Tyler's testimony cannot be dealt with under the plain error doctrine because the errors would not have been obvious to the trial court.\\nIn Eldredge, also a child sexual abuse case, the supreme court discussed the doctrine of plain error in depth. In Eldredge, the defendant had failed to object to the admission of hearsay statements by a child victim or to request findings on the admissibility of the hearsay statements by the child victim under Utah Code Ann. \\u00a7 76-5-411 (1983). On appeal, defendant argued that the Utah Supreme Court should reach the issue under the plain error doctrine. The court set out a two-step test for the application of the plain error doctrine on appeal. First, the error must be \\\"plain,\\\" which means that \\\"from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error.\\\" Eldredge, 773 P.2d at 35. Second, the error \\\"must affect the substantial rights of the accused, i.e., that the error be harmful.\\\" Id.\\nThe Eldredge court, in determining not to apply the plain error doctrine, noted that the \\\"language of section 76-5-411 does not expressly require written findings regarding reliability, and the trial court did not have the benefit of [a later] appellate decision interpreting the statute's requirement\\\" and, thus, the error could not have been obvious to the trial court. Id. at 36.\\nThis is precisely the situation presented here as the trial court did not have the benefit of Rimmasch and its progeny to guide it when faced with the admissibility of the expert testimony, nor does the language of rule 702 point to an inherent reliability requirement for this type of expert testimony.\\nIn fact, as the state points out, the controlling authority at the time of the trial in this case supported the admission of the testimony. In State v. Lairby, 699 P.2d 1187 (Utah 1984) (decided under the old rules of evidence, but with language substantially similar), overruled on other grounds, State v. Ossana, 739 P.2d 628, 631 n. 8 (Utah 1987), the court in dicta suggested that expert testimony on the issue of whether a child had been sexually abused was admissible. Id. at 1200-01. The Rimmasch court spoke of the confusion in the Lairby language and stated that Lairby did not resolve any \\\"threshold reliability doubts\\\" of the admissibility of expert testimony concerning whether a child had been sexually abused. Rimmasch, 775 P.2d at 400.\\nEven the Rimmasch court, before tackling this difficult evidentiary question, acknowledged the new and controversial ground it was breaking, noting that \\\"[Resolution of this question requires an examination of the interrelationship of the new rules of evidence and our old case law and raises issues that are the subject of continuing debate across the nation in states that have used the Federal Rules of Evidence as a model.\\\" Id. at 396. We, like the Eldredge court, cannot say the error of admitting Dr. Tyler's testimony should have been plain to the trial judge.\\nDefendant argues that even though the error of admitting Dr. Tyler's testimony would not have been obvious to the trial judge, this does not prevent us from applying the doctrine of plain error to prevent an \\\"obvious injustice.\\\" He points to dicta contained in footnote 8 in Eldredge, claiming we should ignore the \\\"obviousness\\\" requirement. Footnote 8 provides:\\nWe note that the two plain error requirements of obviousness and harmfulness are related and that the obviousness requirement poses no rigid and insurmountable barrier to review. For example, the more harmful an error is, the more likely an appellate court is to conclude that it was objectively obvious, because a high degree of harmfulness might be expected to attract a trial court's attention. On the other hand, in appropriate cases we can exercise our discretion to dispense with the requirement of obviousness so that justice can be done, as when an error not readily apparent to the court or counsel proves harmful in retrospect.\\n. At bottom, the plain error rule's purpose is to permit us to avoid injustice. No statement of the factors that are important to our deliberations on the point should be read to limit our power to achieve that end.\\nId. at 35 n. 8.\\nWe acknowledge that the Utah Supreme Court in dicta, alluded to a possible narrow exception to the obviousness requirement of the plain error doctrine. However, we do not find the situation described in footnote 8 applicable in this case. We need not decide whether the admission of Dr. Tyler's testimony might have constituted harmful error if properly objected to at trial. When we look at the record as a whole, the admission of her testimony does not present the \\\"high degree of harmfulness\\\" required in order to warrant our waiver of the obviousness requirement. Substantial corroborative testimony was admitted at trial which supported defendant's conviction and we therefore do not believe an \\\"obvious injustice\\\" occurred.\\nBetsy Braun, the child's mother, testified that (1) A.B. told her that defendant was kissing her with his tongue, (2) that A.B. told her that her father had hurt her, (3) that A.B.'s vagina was often sore and red, and (4) that A.B. had once put her head in between her younger sister'g legs and the child had wrapped her legs around A.B.'s head and \\\"started saying [A.B.] loves me, [A.B.] loves me.\\\"\\nA friend of the mother's, Cheryl Dagang, testified that A.B. told her about playing \\\"Beep Beep\\\" with defendant, that she witnessed the episode where A.B. put her head between her sister's legs, and that A.B. said defendant kissed her with his tongue.\\nThus, based upon the record as a whole, we conclude that in balancing the obviousness requirement against the egregiousness of the error, the plain error doctrine should not be applied to reverse defendant's conviction.\\nIII. INDEPENDENT PSYCHOLOGICAL EXAMINATION\\nDefendant's final claim is that the trial court erred in denying his motion for an independent psychological examination of A.B. The trial court had the discretion to order that A.B. be produced for a psychological examination. Utah Rule of Civil Procedure 35(a). In Stone v. Stone, 19 Utah 2d 378, 431 P.2d 802, 803 (1967), the court ruled that rule 35(a) \\\"applies to any action in which the mental or physical condition of a party is in controversy.\\\" The Stone court noted, however, that the decision to make such an order is not mandatory, but is within the sound discretion of the court. Id. 431 P.2d at 803-04. In State v. Lairby, 699 P.2d 1187 (Utah 1984), overruled on other grounds, State v. Ossana, 739 P.2d 628, 631 n. 8 (Utah 1987), the court reaffirmed its position. \\\"[T]he determination as to whether such an examination should be had must necessarily rest largely within the discretion of the trial judge.\\\" Id. at 1197 (quoting State v. Hubbard, 601 P.2d 929, 930 (Utah 1979)). Thus, we must determine whether the trial court abused its discretion when it refused to allow an independent evaluation of the child.\\nThe trial judge denied the examination as cumulative and because he found A.B. would be unnecessarily traumatized by yet another interview by an expert. The judge did allow defendant's expert witness, Dr. Golding, to testify at length concerning the mistakes he believed Dr. Tyler made in interviewing the child. Dr. Golding studied all of the reports and video tapes relied upon by the state and step by step at trial attacked the techniques used. He further testified that those techniques were not accepted by a majority of the members of his profession. Dr. Golding testified, over the state's objection, that, in his professional opinion, using the information available to the experts, he could not conclude, nor did he believe any other expert could have concluded, that A.B. had been sexually abused. In light of Dr. Golding's testimony, we conclude that defendant accomplished his goal of discrediting Dr. Tyler's testimony by utilizing Dr. Golding and, thus, the trial court did not abuse its discretion in refusing to allow Dr. Golding to personally interview the child.\\nIn conclusion, we find that defendant did not preserve his objection to the Rim-masch expert opinion testimony he now complains about on appeal nor did the admission of this testimony constitute plain error. Finally, the trial court did not abuse its discretion when it refused to order an additional independent interview of A.B. Defendant's conviction is affirmed.\\nDAVIDSON and ORME, JJ., concur.\\n. Utah Rule of Evidence 608(a) provides:\\nOpinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.\\n. Utah Rule of Evidence 702 provides:\\nIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\\n. Utah Rule of Evidence 103(d) provides: \\\"Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.\\\"\\n. In State v. Bullock, 791 P.2d 155 (Utah 1989), the Utah Supreme Court also addressed the issue of plain error. The court did not reach the issue of plain error, however, concluding that \\\"we do not appraise all rulings objected to for the first time on appeal under the plain error doctrine. For example, if trial counsel's actions amounted to an active, as opposed to a passive, waiver of objection, we may decline to consider the claim of plain error.\\\" Id. at 158. The court concluded that defense counsel had failed to object to the testimony as part of his trial strategy and, thus, denied his request to apply the plain error doctrine.\\n. Had we reached this issue, we would have been required to determine whether the error of admitting Dr. Tyler's testimony was prejudicial. \\\"Unless our confidence in the outcome is undermined by the error, prejudicial error has not been shown.\\\" State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988). See, e.g., State v. Bates, 784 P.2d 1126, 1128 (Utah 1989) (\\\"The other evidence against defendant was not overwhelming. The jury acquitted him of one of the three counts.\\\"); State v. Ramsey, 782 P.2d 480, 485 (Utah 1989) (There was substantial evidence supporting the conviction for sexual abuse: the two children testified and there was also physical evidence to support their testimony. \\\"Thus, the experts' testimony was not crucial, since the testimony of the children was sufficient to convict.\\\").\"}"

utah/10397550.json

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+"{\"id\": \"10397550\", \"name\": \"Henry G. CLARKE, Jr., and Janice Clarke, Plaintiffs and Appellants, v. AMERICAN CONCEPT INSURANCE COMPANY, Defendant and Respondent\", \"name_abbreviation\": \"Clarke v. American Concept Insurance Co.\", \"decision_date\": \"1988-07-27\", \"docket_number\": \"No. 870193-CA\", \"first_page\": \"470\", \"last_page\": \"474\", \"citations\": \"758 P.2d 470\", \"volume\": \"758\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:19:47.464935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ORME, GARFF and BILLINGS, JJ.\", \"parties\": \"Henry G. CLARKE, Jr., and Janice Clarke, Plaintiffs and Appellants, v. AMERICAN CONCEPT INSURANCE COMPANY, Defendant and Respondent.\", \"head_matter\": \"Henry G. CLARKE, Jr., and Janice Clarke, Plaintiffs and Appellants, v. AMERICAN CONCEPT INSURANCE COMPANY, Defendant and Respondent.\\nNo. 870193-CA.\\nCourt of Appeals of Utah.\\nJuly 27, 1988.\\nJohn Walsh (argued), Salt Lake City, for plaintiffs and appellants.\\nJan P. Malmberg (argued), Christensen, Jensen and Powell, Salt Lake City, for defendant and respondent.\\nBefore ORME, GARFF and BILLINGS, JJ.\", \"word_count\": \"1799\", \"char_count\": \"11098\", \"text\": \"OPINION\\nORME, Judge:\\nPlaintiffs appeal from the grant of summary judgment in favor of defendant, American Concept Insurance Company. Plaintiffs seek reversal of the judgment and remand for a trial on the merits. We affirm.\\nFACTS\\nPlaintiffs entered into an automobile insurance contract with American Concept. The policy period extended from September 12, 1984, at 12:01 a.m. standard time, until September 12, 1985, at 12:01 a.m. standard time. The insurance contract included this provision:\\nAutomatic Termination. If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer.\\nThe contract permitted the annual premium to be paid in installments. An installment was due on April 23, 1985. On April 20, plaintiff sent a check to American Concept which was received April 25. American Concept accepted the payment without a lapse in coverage and did not cancel the policy. On August 13, 1985, American Concept sent plaintiffs a renewal billing and notice of expiration of coverage, stating that coverage would be terminated on September 12, 1985, unless payment was made to American Concept prior to the due date. Plaintiffs deposited the premium payment in their own mailbox during the day on September 12. The payment was postmarked on September 13 and received by American Concept on September 16.\\nPlaintiffs were involved in an automobile accident on September 14. By letter dated September 16, American Concept returned plaintiffs' check for the renewal premium stating that the policy had expired on September 12 at 12:01 a.m. Upon learning of the accident, on September 17 American Concept sent a letter to plaintiffs denying coverage for the accident because the policy had expired on September 12.\\nPlaintiffs brought this action against American Concept alleging breach of contract, estoppel and waiver. In due course, the court granted American Concept's motion for summary judgment concluding, as a matter of law, that there was no insurance coverage available under the policy at the time of the accident.\\nOn appeal, plaintiffs argue that the trial court erred in granting American Concept's motion for summary judgment because there were questions of fact as to whether the payment was timely and, even if the payment was not timely, as to whether American Concept had waived or was es-topped from asserting its right to cancel the policy by its conduct in connection with the April premium installment.\\nTIMELY PAYMENT\\nWhere an insurance contract provides that premiums be paid by a certain time, payment is regarded as timely if it is mailed by the time specified, unless the contract clearly provides to the contrary. See 6 G. Couch, Couch on Insurance \\u00a7 31:106 (2d ed. 1985). Where premiums are due on a specified day, and no particular hour is specified, the insured has the whole of such day, until midnight, within which to pay. See id. \\u00a7 31:26.\\nThe insurance contract in this case specified that the policy expired on September 12,1985 at 12:01 a.m. Thus, for payment to be timely, it had to be mailed not later than September 11 \\u2014 or during the first sixty seconds of September 12. According to plaintiff Janice Clarke, the payment was simply put in plaintiffs' own personal mailbox at their residence at some point on September 12 and picked up by the postal service on September 13. Even making the doubtful assumption that placing a payment in one's home mailbox is considered a mailing as of that time, payment was not timely in this case because the policy had expired by its own terms one minute into September 12, 1985. When plaintiffs placed the payment in their mail box, then, the policy had already expired. If a check is mailed after termination, the mailing is not effective as payment and the insurer may refuse to accept it. Id. \\u00a7 31:109.\\nPlaintiffs argue that American Concept nonetheless waived or was estopped from asserting its right to refuse payment and deny coverage by its conduct in previously accepting a late payment and continuing coverage in that instance.\\nWAIVER\\nAlthough often alleged interchangeably, waiver and estoppel are different doctrines. E.g., Barnes v. Wood, 750 P.2d 1226, 1230 (Utah Ct.App.1988). Waiver is \\\"the intentional relinquishment of a known right.\\\" Id. See B.R. Woodward Marketing, Inc. v. Collins Food Serv., Inc., 754 P.2d 99, 101 (Utah Ct.App.1988). To waive a right, there must be an existing right, benefit, or advantage; knowledge of its existence; and an intention to relinquish it. Barnes v. Wood, 750 P.2d at 1230. The party's actions or conduct must unequivocally evince an intent to waive or must at least be inconsistent with any other intent. Id.\\nPlaintiffs claim that American Concept waived its right to terminate the policy upon receipt of the late September payment because it previously accepted a late payment the prior April and nonetheless continued coverage. With respect to the April payment, it should be recalled that plaintiffs placed an installment payment due on April 23 in the mail on April 20, which was not received by American Concept until April 25. American Concept accepted the payment, did not return the check, and continued the policy without a lapse in coverage.\\nPlaintiffs suggest that American Concept's conduct in accepting the \\\"late\\\" April payment at least suggests a factual question concerning its intent to waive its right to refuse future late payments. This argument fails for at least two reasons. First, although the April payment was not received by the due date, the payment was at least mailed prior to the due date and thus was a timely payment under the general rule previously recognized in this opinion. By contrast, the September payment was not deposited in the mail until after the policy had expired and was not received until four days following expiration. It therefore was not, in any sense, a timely payment and nothing about the events of April evinces any intention on the part of American Concept not to insist on strict compliance with the policy's payment terms.\\nIn addition, because plaintiffs' policy was for a one-year term, the installment payment due in April and the renewal payment due in September are on somewhat different legal footings. Even if the April payment had been made late, the insurance policy would not have automatically terminated. Late payment would only have resulted in a possible cancellation of the policy. In order for cancellation to be valid, defendant was statutorily required to give ten days notice, accompanied by the reason for the cancellation. Utah Code Ann. \\u00a7 31-41-16 (1974) (repealed, 1985 Utah Laws ch. 242, \\u00a7 58).\\nBy contrast, since September 12 at 12:01 a.m. marked the end of the one-year policy term, the policy would automatically terminate upon nonpayment of the renewal premium. Unlike in the case with cancellation for nonpayment, there was no statutory requirement for notice with respect to non-renewal for nonpayment of premium. See Utah Code Ann. \\u00a7 31-41-17 (1974) (repealed, 1985 Utah Laws ch. 242, \\u00a7 58). Thus, American Concept's conduct with regard to the April installment payment, which involved different consequences for late payment, says nothing about its intent to waive strict compliance with the requirements of the contract involving automatic termination upon untimely payment of the premium to extend coverage for an additional year. As a matter of law, American Concept did not waive its right to refuse the late September renewal payment and deny coverage by its conduct in accepting the April installment payment.\\nESTOPPEL\\nWe likewise find American Concept was not estopped from asserting, its right to terminate coverage for lack of timely payment of the renewal premium. \\\"The elements of estoppel are: 'conduct by one party which leads another party, in reliance thereon, to adopt a course of action resulting in detriment or damage if the first party is permitted to repudiate his conduct.'\\\" Scheller v. Dixie Six Corp., 753 P.2d 971, 973 (Utah Ct.App.1988) (quoting Blackhurst v. Transamerica Ins. Co., 699 P.2d 688, 691 (Utah 1985)). American Concept's acceptance of the April payment cannot form the basis of an estoppel relative to the September premium for largely the same reasons just discussed. American Concept's acceptance of the April payment, mailed prior to the due date, is not conduct which could reasonably lead plaintiffs to believe that it would likewise accept a payment mailed after its due date. Moreover, American Concept's conduct with respect to an installment payment made midway through the policy term would not reasonably lead plaintiffs to rely on the same conduct with respect to making the payment necessary to renew the policy at the expiration of its one-year term.\\nCONCLUSION\\nThe trial court ruled correctly in granting American Concept's motion for summary judgment. There is no material dispute as to when plaintiffs' payment was mailed, which was clearly after the time it was due. As a matter of law, American Concept is not precluded, under the doctrine of waiver or estoppel, from asserting its right to refuse the untimely renewal payment and deny coverage for plaintiffs' accident. Accordingly, the judgment of the trial court is affirmed.\\nGARFF and BILLINGS, JJ., concur.\\n. Plaintiffs' resistance to the motion for summary judgment was partly directed at showing the premium was mailed before the accident occurred. Janice Clarke's explanation was accordingly couched in terms of payment being \\\"mailed\\\" two days before the accident and being picked up from her mailbox one day before the accident. The September 13 postmark, September 14 accident date, and clarification offered at oral argument establish September 12 as the day when the premium payment was set out for pick-up by the postal service.\\n. Utah Code Ann. \\u00a7 31-41-15 provided that \\\"[a] notice of cancellation of a policy shall be valid only if it is based on one or more of' several reasons, including \\\"[n]onpayment of premium.\\\" Utah Code Ann. \\u00a7 31-41-16 provided, with our emphasis, in relevant part:\\n(1) No notice of cancellation of a policy to which section 31-41-15 applies shall be valid unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation. Where cancellation is for nonpayment of premium, at least ten days'notice of cancellation accompanied by the reason therefor must be given.\\nEquivalent provisions of the new insurance code are found in Utah Code Ann. \\u00a7 31A-21-303 (1986).\"}"

utah/10398937.json

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+"{\"id\": \"10398937\", \"name\": \"Robert C. LARGE, Plaintiff, v. INDUSTRIAL COMMISSION OF UTAH, Howard Trucking of Utah, Inc., and/or Workers' Compensation Fund of Utah and the Second Injury Fund, Defendants\", \"name_abbreviation\": \"Large v. Industrial Commission\", \"decision_date\": \"1988-08-03\", \"docket_number\": \"No. 870437-CA\", \"first_page\": \"954\", \"last_page\": \"957\", \"citations\": \"758 P.2d 954\", \"volume\": \"758\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:19:47.464935+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GREENWOOD, BILLINGS and DAVIDSON, JJ.\", \"parties\": \"Robert C. LARGE, Plaintiff, v. INDUSTRIAL COMMISSION OF UTAH, Howard Trucking of Utah, Inc., and/or Workers\\u2019 Compensation Fund of Utah and the Second Injury Fund, Defendants.\", \"head_matter\": \"Robert C. LARGE, Plaintiff, v. INDUSTRIAL COMMISSION OF UTAH, Howard Trucking of Utah, Inc., and/or Workers\\u2019 Compensation Fund of Utah and the Second Injury Fund, Defendants.\\nNo. 870437-CA.\\nCourt of Appeals of Utah.\\nAug. 3, 1988.\\nJack C. Helgesen (argued), Helgesen & Waterfall, Ogden, for plaintiff.\\nJames R. Black (argued), Wendy B. Moseley, Black & Moore, Salt Lake City, for defendants.\\nBarbara Elicerio, Legal Counsel, Industrial Com\\u2019n, Salt Lake City, for Industrial Com\\u2019n of Utah.\\nBefore GREENWOOD, BILLINGS and DAVIDSON, JJ.\", \"word_count\": \"2148\", \"char_count\": \"13765\", \"text\": \"OPINION\\nGREENWOOD, Judge:\\nRobert C. Large appeals an Industrial Commission order which denied him permanent total disability benefits. We affirm.\\nOn March 25, 1985, Large applied for a job as a truck driver with Howard Trucking. For about two and one-half years before applying for the job, Large was self-employed. Prior to that time, he had been a truck driver for forty years.\\nAs part of the job application process, Large was required to take a driving test. He climbed into a truck but discovered the truck's clutch was not working properly. As Large stepped out of the truck, he slipped and fell on his back. At the time of the accident, Large was sixty-one years old, about six feet two and one-half inches tall and weighed 376 pounds. He was transported to Dixie Medical Center where X-rays were taken. The X-rays did not reveal a fracture, and the emergency room physician prescribed twenty-four hours bed rest. Large drove to his home in Phoenix, Arizona the following day and made an appointment with Dr. Delbridge, an osteopathic physician. Dr. Delbridge had seen Large six months earlier and had noted at that time that Large's past history included back problems. Dr. Delbridge examined Large and diagnosed his condition as acute lumbosacral sprain and arthritis and fibro-sitis of the lumbosacral spine. Dr. Del-bridge stated that Large had difficulty walking due to his weight and back injuries and that, in his opinion, Large was unem ployable but might be trainable for work he could perform while sitting. In April 1985, Dr. Ditchek examined Large and stated that \\\"[r]eactive sclerosis is present and suggests that this may be of some age, but the possibility of new compression superimposed on old changes must be considered.\\\" In December 1985, Large saw Dr. Robert S. Barbosa who reported that Large's X-rays revealed evidence of advanced arthro-sis and a suggestion of a compression fracture. Dr. Barbosa attributed 5% of Large's disability to his previous injury and 5% to the present injury. Dr. Barbosa also recommended that Large undergo a CT scan to determine the extent of the fracture and if it extended into the spinal canal.\\nOn April 22,1986, an Administrative Law Judge (A.L.J.) held a hearing on Large's application for temporary benefits. After the hearing, the A.L.J. wrote to Dr. Barbo-sa and asked if the 10% permanent physical impairment was attributable to the March 25, 1985 injury, if that injury aggravated Large's pre-existing condition and what percentage impairment rating he would assign to Large's condition prior to March 25, 1985. Dr. Barbosa responded, stating:\\nAt this point, to answer your 4 questions, I feel that the fall in March directly aggravated the patient's preexisting condition, although, according to his testimony he was quite active. The patient also has a 10% permanent physical impairment judging from his previous laminec-tomy surgery which certainly contributes to what I feel is now a permanent physical impairment since the patient does have a loss of strength, especially of the right lower extremity, rather severe discomfort extending from the lumbar spine. I would give it approximately 5% due to the patient's previous lumbar surgery, performed in 1958. This surgery was done for herniated lumbar disc.\\nBased on this letter and the medical reports submitted at the hearing, the A.L.J. entered findings of fact and conclusions of law in September 1986 awarding Large temporary total disability benefits. Specifically, the A.L.J. found that some of Large's impairment related to an earlier back injury Large sustained in 1953 and that further medical work was needed to determine the relationship between the present and the prior injury. The A.L.J. also stated that even though no Utah case addressed whether workers' compensation should cover those injured during a \\\"try-out\\\" period, the statute should be construed liberally in favor of coverage. Neither party appealed the award of temporary total disability benefits.\\nIn April 1987, Large requested permanent total disability benefits. Attached to his request was a medical report prepared by Dr. David Plone. The report, based on an X-ray examination, noted moderate degenerative changes throughout the lumbar spine, facet joint hypertrophy and arthritic disease. Further, the report stated, \\\"There is compression of the superior vertebral body plate of L3, but this appears to be an old compression fracture.\\\" Without holding a further hearing, the A.L.J. entered supplemental findings and conclusions, stating that Large had a 10% disability, 5% attributable to the 1953 injury and 5% attributable to the 1985 injury. The A.L.J. also stated that although Large was an employee for purposes of temporary total and permanent partial disability, he was not an employee for purposes of permanent total disability. The A.L.J. then found that Large's age, obesity, lack of transferrable skills and prior back surgery constituted the proximate or dominant cause of his disability. The A.L.J. concluded that Large was entitled to permanent partial disability benefits but not permanent total disability benefits because the proximate or dominant cause of his unemployability was not the March 25, 1985 accident. Large subsequently filed a motion for review, which the Industrial Commission denied. The Commission noted that the only issue on review was whether Large was entitled to permanent total disability benefits and agreed with the A.L. J. that Utah Code Ann. \\u00a7 35-1-67 (1985) implies a causal connection between the injury and the permanent total disability. The Commission further stated, \\\"The concept of proximate cause serves the purpose of allowing those whose disabilities are truly the result of the industrial injury to be properly compensated.\\\" This appeal followed.\\nOn appeal, Large claims that the Commission erred in finding that factors other than the 1985 accident were the proximate or dominant cause of his permanent total disability, and concluding, as a result of that finding, that he was not entitled to permanent total disability benefits. We agree that a \\\"proximate cause\\\" analysis, as that term is commonly used, is not appropriate in workers' compensation cases. Proximate cause is used primarily in tort law and involves analysis of foreseeability, negligence and intervening causes. These factors are not present in the statutory workers' compensation system, which excludes consideration of fault. A. Larson, 1 Workmen's Compensation Law \\u00a7 6.60 (1985).\\nAlthough proximate cause is not an appropriate standard, the Utah Supreme Court has, nevertheless, required proof of a causal relationship as a prerequisite to awarding workers' compensation benefits. Allen v. Industrial Comm'n, 729 P.2d 15 (Utah 1986). In Allen, the Utah Supreme Court interpreted Utah Code Ann. \\u00a7 35-1-45 (1986) , and explained that \\\"by accident arising out of or in the course of employment\\\" requires: (1) proof that the injury occurred \\\"by accident\\\"; and (2) proof of a causal connection between the accident and the activities or exertions required in the workplace. Id. at 18. In analyzing the causal connection, the Court adopted a two-part test which requires a claimant to establish legal cause and medical cause. Under the legal cause test \\\"a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition.\\\" Id. at 27. Further, under the medical cause test, the claimant must prove \\\"the disability is medically the result of an exertion or injury that occurred during a work-related activity.\\\" Id. at 26. The standard of proof for causation is by a preponderance of the evidence. Id. at 23. In Hodges v. Western Piling & Sheeting Co., 717 P.2d 718 (Utah 1986), the Court considered an Industrial Commission determination which awarded permanent partial disability benefits but denied permanent total disability benefits to a sixty-eight year old worker who injured his arm in an industrial accident. The Court affirmed, finding that \\\"[w]hile it is unquestioned that the medical panel found petitioner to be one hundred percent physically impaired, the panel also found that the total impairment was due to the onset of severe arthritic problems.\\\" Id. at 721. The petitioner had a prior asymptomatic arthritic condition which flared up after the accident, but which was found to have no causal relationship to the industrial accident. Professor Larson has also observed that there is a distinction \\\"between a preexisting disability that independently produces all or part of the final disability, and a pre-existing condition that in some way combines with or is acted upon by the industrial injury.\\\" A. Larson, 2 Workmen's Compensation Law \\u00a7 59.22(b) (1987). Therefore, a claimant for permanent total disability benefits must prove medically that his disability was caused by an industrial accident.\\nThe critical inquiry in this case, therefore, is whether the Commission's decision should be affirmed because Large did not prove by a preponderance of the evidence that the industrial accident was the medical cause of his disability. In reviewing the Industrial Commission's factual findings, we will not disturb those findings unless they are \\\" 'arbitrary and capricious,' or 'wholly without cause,' or 'contrary to the one [inevitable] conclusion from the evidence,' or 'without any substantial evidence to support them.'\\\" Lancaster v. Gilbert Dev., 736 P.2d 237, 238 (Utah 1987) (quoting Kaiser Steel Corp. v. Monfredi, 631 P.2d 888, 890 (Utah 1981)). The medical reports in this case indicate that prior to the accident Large had back problems relating to a 1953 injury and herniated lumbar disc surgery. In addition, Dr. Delbridge's letter stated that Large had difficulty walking due to his weight and back injuries. Dr. Barbosa's medical report stated that Large's X-rays suggested a compression fracture but that a CT scan was required to determine the extent of the fracture. Subsequently, Dr. Plone stated that the compression fracture \\\"appears to be an old compression fracture.\\\" Although the Industrial Commission erroneously applied the proximate cause test rather than the causation test articulated in Allen and Hodges, we find substantial evidence in the record to support a finding that the 1985 injury was not the medical cause of Large's permanent total disability status and that Large's age, obesity, lack of transferable skills and prior back surgery resulted in his disability.\\nLarge also asserts that the A.L.J. erred in finding that he was not an employee for purposes of permanent total disability benefits. However, the A.L.J.'s findings of fact and conclusions of law and the Commission's denial of the motion for review are based on the inadequate causal link between the disability and the injury and not on Large's employee status. Therefore, the issue of whether Large was injured \\\"in the course of his employment,\\\" while performing \\\"try-out\\\" tasks, is not before us and is not addressed in this opinion.\\nFinally, Large claims that he is entitled to permanent total disability benefits under Utah Code Ann. \\u00a7 35-1-69 (1985) because the accident aggravated his pre-existing injury. We disagree. Section 35-1-69 determines the apportionment of compensation between the Second Injury Fund and the employer or its insurance carrier and does not address entitlement to permanent total disability benefits. Entitlement to benefits is a prerequisite to consideration of apportionment. Where the disability is the result of pre-existing conditions and not an industrial accident, a claimant is not entitled to disability benefits.\\nAffirmed.\\nBILLINGS and DAVIDSON, JJ., concur.\\n. This section governs procedures and payments for permanent total disability.\\n. The statute provides that \\\"Every employee . who is injured . by accident arising out of or in the course of his employment . shall be paid compensation for loss sustained on account of the injury_\\\"\\n. The version of section 35-1-69 which was in effect in 1985 when Large was injured stated:\\nIf any employee who has previously incurred a permanent incapacity by accidental injury . sustains an industrial injury for which either compensation or medical care, or both, is provided by this chapter that results in permanent incapacity which is substantially greater than he would have incurred if he had not had the pre-existing incapacity, or which aggravates or is aggravated by such pre-exist-ing incapacity, compensation shall be awarded on the basis of the combined injuries, but the liability of the employer for such compensation . shall be for the industrial injury only. The remainder shall be paid out of the Second Injury Fund....\\nThe statute also provides that any aggravation of a pre-existing condition shall be deemed \\\"substantially greater.\\\" Recently, section 35-1-69 was repealed and reenacted. Under the current version of section 35-1-69, the test for apportioning liability for compensation is not the \\\"substantially greater\\\" test. Instead, the statute requires a 10% pre-existing whole person permanent impairment before liability for compensation is apportioned.\"}"

utah/10405217.json

@@ -0,0 +1 @@
+"{\"id\": \"10405217\", \"name\": \"AMERICAN SALT COMPANY, a Delaware corporation, Plaintiff, v. W.S. HATCH COMPANY, a Utah corporation; the Public Service Commission of Utah; Brent H. Cameron; James M. Byrne; and Brian T. Stewart, Defendants\", \"name_abbreviation\": \"American Salt Co. v. W.S. Hatch Co.\", \"decision_date\": \"1987-12-31\", \"docket_number\": \"No. 860048\", \"first_page\": \"1060\", \"last_page\": \"1067\", \"citations\": \"748 P.2d 1060\", \"volume\": \"748\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:29:15.852335+00:00\", \"provenance\": \"CAP\", \"judges\": \"STEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\", \"parties\": \"AMERICAN SALT COMPANY, a Delaware corporation, Plaintiff, v. W.S. HATCH COMPANY, a Utah corporation; the Public Service Commission of Utah; Brent H. Cameron; James M. Byrne; and Brian T. Stewart, Defendants.\", \"head_matter\": \"AMERICAN SALT COMPANY, a Delaware corporation, Plaintiff, v. W.S. HATCH COMPANY, a Utah corporation; the Public Service Commission of Utah; Brent H. Cameron; James M. Byrne; and Brian T. Stewart, Defendants.\\nNo. 860048.\\nSupreme Court of Utah.\\nDec. 31, 1987.\\nCharles M. Bennett, Salt Lake City, for plaintiff.\\nMerlin O. Baker, Salt Lake City, for W.S. Hatch Co.\\nDavid L. Wilkinson and Bernard M. Tanner, Salt Lake City, for Public Service Comm\\u2019n.\", \"word_count\": \"3529\", \"char_count\": \"21796\", \"text\": \"HALL, Chief Justice:\\nAmerican Salt seeks review of a Public Service Commission (PSC) order dismissing its verified complaint.\\nAmerican Salt harvests salt from the Great Salt Lake. By early 1984, the surface of the lake had risen to such a level as to endanger American Salt's ability to recover sufficient amounts of salt to satisfy its markets. In order to supplement its inventory, American Salt purchased additional salt from Amax.\\nIn April 1984, American Salt contacted W.S. Hatch Co. (Hatch), a Utah common carrier, about transporting the purchased salt from Amax to American Salt's processing plant. After physically inspecting the hauling route, Hatch entered into an agreement with American Salt pursuant to which Hatch would be paid less than its applicable general tariff (its general commodity tariff) for each of the eleven-mile hauls.\\nApproximately four miles of the eleven-mile route were over a public road. Accordingly, the hauls were subject to the jurisdiction of the PSC. However, Hatch neither requested nor received PSC approval prior to the hauling to charge a point-to-point rate (a special commodity rate).\\nPursuant to the parties' agreement, Hatch hauled salt from April 16 until May 2, 1984. Subsequently, a dispute arose between the parties, and Hatch brought suit in federal district court to recover hauling charges based upon its general commodity tariff.\\nAmerican Salt then filed a verified complaint with the PSC that sought relief from the imposition of Hatch's general commodity tariff. This request for relief was based in part on the fact that Hatch had made several special commodity rate salt hauls for American Salt's competitor, Morton Salt. The thirty-mile Morton Salt hauls followed a route that included the eleven-mile American Salt route. Hatch charged Morton Salt less than its general commodity tariff.\\nHatch in turn filed a motion with supporting affidavits seeking dismissal of the complaint. In September 1985, the administrative law judge who heard Hatch's motion filed his report and proposed order, which included findings of fact and conclusions of law. The report and order, which granted Hatch's motion, were adopted by the PSC, and a subsequent application for rehearing was denied.\\nAmerican Salt contends that the PSC had the authority and duty to grant its requested rate relief. It first claims that application of Hatch's general commodity tariff in this case is unreasonable and unjust because (1) Hatch will recover a windfall profit, (2) having Hatch haul the salt at the general commodity rate makes no \\\"economic sense\\\" since the hauling charges will cause the cost of the salt to exceed its retail value, and (3) Hatch told the PSC that a lower rate was just and reasonable with respect to the Morton Salt hauls, and the PSC allowed Hatch to charge Morton Salt a special commodity rate. American Salt claims that by denying its requested relief, the PSC allowed Hatch to charge an unjust and unreasonable rate in violation of state law.\\nThe findings of fact and conclusions of law provide in part:\\nFINDINGS OF FACT\\nThe Commission finds that there is no genuine issue as to the following material facts:\\n1. The haul performed by Hatch for American Salt was made, in part, over a public road of the state of Utah.\\n4.At the time of the haul, Hatch had a salt tariff on file that had been properly submitted to and approved by this Commission.[ ] The Public Service Commission has examined and approved Hatch's salt tariff on numerous occasions. The Commission has found the salt tariff to be just and reasonable.\\n7. No application was made to this Commission to change the tariff rate applicable to this haul.\\nCONCLUSIONS OF LAW\\n3. Under the law, American Salt is charged with the knowledge that any haul over the Utah public highways is subject to the laws of the state of Utah and, therefore, to the applicable tariff provisions on file with and approved by this Commission.\\n4. The salt tariff on file with the Commission is fair and reasonable, and Hatch is legally required to collect the charges for transportation services as provided in said tariff.\\n5. Any oral or written agreements to charge a rate higher or lower than the published tariff rate, even assuming that such was agreed to by Hatch and American Salt, is void and unenforceable.\\n6. Any agreement or representation by Hatch that it would accept less than the applicable tariff rate in payment for its services, assuming such agreement or representation was made, is also void and unenforceable.\\n7. American Salt is required under the laws of the [sjtate of Utah to pay the tariff rate for the transportation services performed and other charges as set forth in said tariff....\\nThe real question before us is whether these findings and conclusions should be disturbed. Since American Salt does not contest the three quoted findings that control the resolution of this case, we turn to the question of whether Hatch was entitled to judgment as a matter of law.\\nBecause the basic responsibility for controlling utility rates is vested in the Commission and not in the courts, the legislature has narrowly prescribed our review of Commission orders that are attacked as allowing unreasonable or discriminatory rates. Of course, if the Commission is without jurisdiction to grant a petitioner's requested relief based on a claim of unfair, unjust, and discriminatory rate practices, we will not disturb its order denying relief.\\nAll charges made, demanded, or received by Hatch for hauling services performed over public roads must be just and reasonable. The PSC has broad power and authority to regulate Hatch and control its rates with respect to the hauls in this case since the hauling took place over a public road.\\nA just and reasonable rate is one that is sufficient to permit a utility to recover its costs of service and earn a reasonable return for its enterprise. When investigating the reasonableness of a rate, the PSC considers the utility's historical income and cost data, as well as predictions of future costs and revenues. Other factors are involved in the balancing process as well. Thus, whether a general tariff is just and reasonable under title 54 turns on many factors, not on the facts surrounding a given shipment viewed in isolation.\\nWhen a shipper requires a special rate due to irregular circumstances surrounding an isolated shipment, the proper course of action is for the common carrier to apply for a special commodity rate. Indeed, Hatch sought special commodity rates for the Morton Salt hauls, and special rates were approved.\\nA common motor carrier's request for a special commodity rate predicated upon irregular circumstances must be sought and approved prior to the hauling for which the tariff is requested. This concept was thoroughly explained in Utah Department of Business Regulation v. Public Service Commission, where we analyzed the PSC's authority to control utility rates in light of the general purpose underlying Utah's general utility ratemak-ing provisions. There, we held that \\\"all ratemaking must be prospective in effect\\\" in order to protect the balance of risk between utilities and consumers, and we overturned a PSC order that effectively granted Utah Power & Light Company a retroactive rate increase. This principle is equally applicable to special tariffs in the common motor carrier context as well. Thus, granting the relief requested by American Salt would have been beyond the PSC's authority and therefore improper since an application for a special commodity rate was not made prior to the hauling in question.\\nThe PSC properly observed this principle in its order denying rehearing:\\nWe do not disagree with Complainant's characterization of the result in this case as being harsh and, at least from its perspective, unfair. Complainant contracted to pay \\u2014 and doubtless budgeted accordingly \\u2014 one amount only to find that when time came for payment, it owed three or four times what it had anticipated. The only basis for the increase in charges is the fact that the service was performed over a public and not a private roadway; the increase was not based upon increased costs to Respondent.\\nNotwithstanding our sympathy for Complainant's predicament, we are constrained by the force of case law relevant to the issues here to sustain our earlier order; nothing offered in the Application for Rehearing suggests that the case law has changed. The tariff rates must be charged, and collected unless prior specific authorization from this Commission is obtained. In the event that it is demonstrated that a carrier is intentionally misleading shippers to his pecuniary advantage, the Commission could and certainly would reconsider the fitness of such a carrier to hold an operating authority; however, that does not change the policy and requirement of law concerning tariffs and Complainant cannot be helped.\\n(Emphasis added.)\\nAmerican Salt, however, relies on Utah Code Ann. \\u00a7 54-7-20(1) (1986) to support its contention that the PSC had the power to grant what is, in effect, retroactive rate relief. Our decisions concerning the prohibition against retroactive rate relief undermine this position. Furthermore, this Court, in an opinion construing section 54-7-20's predecessor statute, disallowed reparations where the applicable general tariff had been charged. In Denver & Rio Grande Railroad v. Public Utilities Commission, the Public Utilities Commission, relying on language substantively identical to section 54-7-20, ordered the petitioner/utility to pay reparations to a shipper. The Commission's order was based in part on a finding that one of the petitioner's competitors had a lower tariff to move the same commodity between the same general locations. Since the competitor was moving property between the same general areas for a rate below that of the petitioner's, the Commission found the petitioner's higher tariff unreasonable and unjust and ordered the petitioner to make reparations. In reversing that order, this Court stated:\\nWe think it plain from the language of the statute that the power of the commission to order reparations is limited to cases where charges have been made in excess of the schedules, rates, and tariffs on file with the commission, or discrimi-nations made under such schedules. That was the view [previously] taken by the commission itself, and approved by this court.\\nThe case of Bonfils v. Public Utilities Commission, relied upon by counsel for American Salt at oral argument, supports this view. In that case, two orders had been entered by the Colorado Public Utilities Commission's predecessor, the Colorado Railroad Commission. The orders established rates for hauling coal by rail between two areas. Bonfils petitioned the Colorado Public Utilities Commission, claiming that a railroad had charged it in excess of the tariff specified in the two orders and requesting reparations. The Commission's order held, in relevant part, \\\"that the amount of reparation to be granted should be the difference between the rates charged and the rates which the commission should find to have been reasonable at the time the transportation services were rendered_\\\" The order also stated \\\"that the orders made by the Railroad Commission in two cases hereinafter mentioned do not establish rates which the commission must accept as reasonable rates for the periods covered by said orders....\\\" In reversing the Commission's order, a majority of the Colorado Supreme Court held:\\nThe commission erred, also, in denying that the rates established by the Railroad Commission for the said two periods must be accepted as the reasonable rates for those terms. The law creating said commission determines the question.\\nThese orders are findings or decisions of the commission, and are clearly within this section, and thus binding upon the successor of the old commission.\\nIt follows that the orders fixing rates were binding upon respondents....\\nCertainly, Bonfils is not authority for the proposition that section 54-7-20 grants the PSC authority to allow retroactive rate relief.\\nIn passing, we note that as for the proposition that it is entitled to rate relief, American Salt's reliance on Mountain States Legal Foundation v. Utah Public Service Commission is misplaced. In tha,t case, the plaintiffs sought review of an order granting Utah Power & Light a general rate increase and establishing a \\\"senior citizen rate.\\\" Since that case did not involve retroactive rate relief, it has no application in this case.\\nIn this case, the general commodity tariff was the only tariff on file which could properly be applied to the shipments in question. The Commission could not order reparations under the statute.\\nAmerican Salt next claims that despite the PSC's authority to act, the PSC violated its duty to prevent discriminatory rate practices by denying the requested relief. The argument is that by denying such relief, the PSC allowed Hatch to charge American Salt more than it charged Morton Salt for essentially the same hauling service. American Salt relies upon Utah Code Ann. \\u00a7 54-3-8 (preferences and discriminatory practices prohibited), 54-3-6(2), and 54-3-7 (1986) (common carriers must extend uniform contracts to shippers).\\nThe problem with American Salt's argument is that it bases its claim of discrimination on the difference between Hatch's general commodity tariff and the special commodity rate approved for the Morton Salt hauls. When a shipper is subject to the same circumstances underlying a special commodity rate, it cannot claim it has been discriminated against because it is charged a general commodity tariff where the shipper's carrier has not applied for a special commodity rate prior to the hauling in question. Ruling otherwise would create a loophole in the fundamental principle underlying the statutory scheme pursuant to which the PSC controls utility rates: all ratemaking must be prospective.\\nMoreover, a ruling in favor of American Salt would be at variance with the broad authority granted the PSC to police utility rates and might encourage carriers to ignore the mandates of title 54. Adoption of American Salt's proposition could easily prompt common carriers to negotiate cut-rate contracts for regulated hauls. If subsequent to such a haul a competitor could show some unfairness or discrimination in being charged a general tariff based upon the similarities between its business and the business of the shipper who received the cut-rate hauling services, the cut rate would automatically become an enforceable rate, despite the fact that it was not approved prior to the hauling. In short, a ruling in favor of American Salt would allow what in effect would be tariffs by estoppel.\\nOther shortfalls in American Salt's position become clear when it is analyzed under the facts of this case. At oral argument, counsel for American Salt explained that salt is a very competitive commodity. Were we to rule in favor of American Salt, every other salt haul transacted pursuant to Hatch's general commodity tariff would be subject to a claim of discrimination based upon the cut rate offered American Salt. After each salt shipment conducted by Hatch, the shipper could claim that it was discriminated against based upon the competitive nature of salt. When the common carrier sued in a court of law to recover its published and approved tariff, the shipper could turn to the PSC, where it would be entitled to a hearing and a review of the PSC's decision while the common carrier suit languished in court. It is totally unreasonable to suggest that the legislature intended such a state of affairs under title 54. Were it so, the PSC would in effect have to establish individual rates for each salt shipper, \\\"a wholly uneconomic and impracticable, if not impossible, task.\\\"\\nThe fact that the Commission did not make a finding concerning discrimination is insignificant. As stated above, the Commission recognized the principle of law controlling this case and properly applied the same. Thus, this is not a case where the findings are not \\\"sufficiently detailed to demonstrate that the Commission has properly arrived at the ultimate factual findings and has properly applied the governing rules of law to those findings.\\\"\\nThe hauls made by Hatch for American Salt were made over a public road and were therefore regulated. The law clearly requires that Hatch charge and receive the applicable general tariff absent an order to the contrary. Here, no such order was sought prior to the hauling in question, so Hatch is entitled to collect the general tariff. Because the PSC had no authority to grant the relief requested, Hatch was entitled to judgment below. Therefore, we do not disturb the Commission's findings, conclusions, or order.\\nAmerican Salt also contends that Hatch contracted to obtain a special tariff and breached the covenant to American Salt's detriment and suggests that Hatch misrepresented or misled American Salt concerning the applicable charges. Because the PSC did not have the authority to grant American Salt's requested relief, we need not address these issues.\\nAffirmed. No costs awarded.\\nWE CONCUR:\\nSTEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\\n. Utah Code Ann. \\u00a7 54-2-1 (Supp.1984) (amended 1985, 1986 & 1987), -6-1 (Supp.1985) (repealed 1986).\\n. Utah Code Ann. \\u00a7 54-6-3 (1974) (repealed 1986).\\n. Utah Code Ann. \\u00a7 54-3-6 (1986) provides in part that a common carrier subject to title 54 may not engage in hauling \\\"until its schedules of rates, fares[,] charges and classifications . have been filed and published_\\\"\\n. See Mountain States Legal Found, v. Public Serv. Comm'n, 636 P.2d 1047, 1051 (Utah 1981).\\n. Cf. id. at 1051.\\n. See Utah Code Ann. \\u00a7 54-2-1(30) (Supp.1984) (amended 1985, 1986 & 1987), -3-1 (1986), -6-1 (Supp.1985) (repealed 1986), -6-2 to -3 (1974) (repealed 1986); see also Utah Code Ann. \\u00a7 54-4-4(1), (3), -7-20 (1986).\\n. See Utah Code Ann. \\u00a7 54-2-1(30) (Supp.1984) (amended 1985, 1986 & 1987), -4-1, -4-4 (1986), -6-1 to -4 (1974 & Supp.1985) (repealed 1986); see also Utah Power & Light Co. v. Public Serv. Comm'n, 712 P.2d 251, 252 (Utah 1985); Fuller-Toponce Truck Co. v. Public Serv. Comm'n, 99 Utah 28, 33, 96 P.2d 722, 724 (1939).\\n. See Utah Dep't of Business Regulation v. Public Serv. Comm'n, 614 P.2d 1242, 1248 (Utah 1980).\\n. Utah Dep't of Business Regulation v. Public Serv. Comm'n, 720 P.2d 420 (Utah 1986); see also Utah Dep't of Business Regulation, 614 P.2d at 1248; Utah Code Ann. \\u00a7 54-4-4(3) (1986); but see Utah Code Ann. \\u00a7 54-7-1 (1986) (amended 1987).\\n. See Mountain States Legal Found., 636 P.2d at 1054-55, 1057; Utah Code Ann. \\u00a7 54-3-1 (1986).\\n. See Utah Code Ann. \\u00a7 54-3-3, -7, -4-1 (1986), \\u20147\\u201412(4)(b)(i) (1986) (amended 1987).\\n. 720 P.2d 420.\\n. Id. at 423-24.\\n.The provision provides:\\n(1) When complaint has been made to the commission concerning any rate, fare, toll, rental or charge for any product or commodity furnished or service performed by any public utility, and the commission has found, after investigation, that the public utility has charged an amount for such product, commodity or service in excess of the schedules, rates and tariffs on file with the commission, or has charged an unjust, unreasonable or discriminatory amount against the complainant, the commission may order that the public utility make due reparation to the complainant therefor, with interest from the date of collection.\\n. 73 Utah 139, 272 P. 939 (1928).\\n. Id. at 141-42, 272 P. at 940 (citations omitted); see also Utah-Idaho Cent. Ry. v. Public Util. Comm'n, 64 Utah 54, 57-59, 227 P. 1025, 1026-27 (1924).\\n. 67 Colo. 563, 189 P. 775 (1920).\\n. Id. at 564, 189 P. at 775 (emphasis added).\\n. Id. at 574, 189 P. at 779.\\n. 636 P.2d 1047.\\n. See Denver & Rio Grande R.R., 73 Utah at 142, 272 P. at 940.\\n. Utah Code Ann. \\u00a7 54-4-1 (1986).\\n. Mountain States Legal Found., 636 P.2d at 1053.\\n. Id. at 1052.\\n. See Utah Code Ann. \\u00a7 54-6-3 (1974) (repealed 1986).\\n. Utah Code Ann. \\u00a7 54-3-6(2) (1986) provides, in pertinent part:\\nNo common carrier shall charge, demand, collect or receive a greater or less or different compensation for the transportation of . property, or for any service in connection therewith, than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit, in any manner or by any device, any portion of the rates, fares or charges so specified, except upon order of the commission as hereinafter provided, or extend to any person any privilege or facility in the transportation of . property except such as are regularly and uniformly extended to all persons.\\nSee also Union Pac. R.R. v. Sterling H. Nelson & Sons, Inc., 552 P.2d 649 (Utah 1976).\"}"

utah/10408339.json

@@ -0,0 +1 @@
+"{\"id\": \"10408339\", \"name\": \"The STATE of Utah, Plaintiff and Respondent, v. James Christopher WACEK, Defendant and Appellant\", \"name_abbreviation\": \"State v. Wacek\", \"decision_date\": \"1985-06-25\", \"docket_number\": \"No. 20462\", \"first_page\": \"296\", \"last_page\": \"298\", \"citations\": \"703 P.2d 296\", \"volume\": \"703\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:38:10.444640+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The STATE of Utah, Plaintiff and Respondent, v. James Christopher WACEK, Defendant and Appellant.\", \"head_matter\": \"The STATE of Utah, Plaintiff and Respondent, v. James Christopher WACEK, Defendant and Appellant.\\nNo. 20462.\\nSupreme Court of Utah.\\nJune 25, 1985.\\nRehearing Denied July 30, 1985.\\nGregory M. Warner, Provo, for defendant and appellant.\\nDavid L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.\", \"word_count\": \"543\", \"char_count\": \"3267\", \"text\": \"PER CURIAM:\\nDefendant was convicted of the crime of possession of a dangerous weapon by a restricted person in violation of U.C.A., 1953, \\u00a7 76-10-503(1). On appeal, he seeks reversal of his conviction on the ground that the statute is unconstitutional.\\nThe case was submitted to the trial court on stipulated facts. On July 3, 1984, police officers in Utah County stopped a vehicle they suspected was being driven by a person under the influence of alcohol. Defendant, sitting in the right front seat of the vehicle, was also believed to be in an intoxicated condition. When an officer approached and asked defendant to exit the vehicle, he did not respond. The officer repeated the request, and when defendant still did not respond, the officer opened the passenger door. Between the passenger seat and the passenger door, in the immediate area of defendant's right hand, the officer observed a shotgun. The hammer on the shotgun was pulled back completely, and it was later determined that the shotgun was loaded and the safety was off. When searched, defendant was found to have two shotgun shells in his pocket. Other firearms were found on the back seat and in the trunk of the vehicle.\\nDefendant previously had been convicted of aggravated assault, a crime of violence. He was charged with possession of a dangerous weapon by a restricted person in violation of U.C.A., 1953, \\u00a7 76-10-503(1). Said statute provides, in part, that \\\"any person who has been convicted of any crime of violence . shall not own or have in his possession or under his custody or control any dangerous weapon_\\\" Defendant moved to dismiss the charge, arguing that the statute is repugnant to article I, section 6 of the Utah Constitution (pertaining to the right to bear arms). After a hearing, defendant's motion was denied, and he was found guilty as charged.\\nOn appeal, defendant urges that the statute is unconstitutional by virtue of a change in the language of article I, section 6. The constitutional amendment was approved by the electorate in November 1984 and took effect on January 1, 1985. Even assuming that the amendment changed substantive rights under the Utah Constitution, defendant is not in a position to advance a claim under the amendment. A constitutional amendment is to be given only prospective application, unless the in tent to make it retrospective clearly appears from its terms. Torvinen v. Rollins, 93 Nev. 92, 560 P.2d 915, 917 (1977); People v. Elliott, 186 Colo. 65, 68, 525 P.2d 457, 458 (1974). See also Snow v. Keddington, 113 Utah 325, 336, 195 P.2d 234, 239 (1948). Defendant was charged by information dated July 6, 1984, for the commission of an offense on July 3, 1984. Under the constitutional language then in effect, the challenged statute was clearly constitutional. State v. Beorchia, Utah, 530 P.2d 813 (1974). See also State v. Vlacil, Utah, 645 P.2d 677 (1982).\\nDefendant's conviction therefore must be, and is, affirmed.\"}"

utah/10409808.json

@@ -0,0 +1 @@
+"{\"id\": \"10409808\", \"name\": \"Barbara CLARK and Alan V. Clark, the sole and only heirs of Vernon Earl Clark, deceased, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent\", \"name_abbreviation\": \"Clark v. State Farm Mutual Automobile Insurance Co.\", \"decision_date\": \"1987-10-06\", \"docket_number\": \"No. 19692\", \"first_page\": \"1227\", \"last_page\": \"1230\", \"citations\": \"743 P.2d 1227\", \"volume\": \"743\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:54:19.517955+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., STEWART, Associate C.J., and HOWE and ZIMMERMAN, JJ., concur.\", \"parties\": \"Barbara CLARK and Alan V. Clark, the sole and only heirs of Vernon Earl Clark, deceased, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent.\", \"head_matter\": \"Barbara CLARK and Alan V. Clark, the sole and only heirs of Vernon Earl Clark, deceased, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Respondent.\\nNo. 19692.\\nSupreme Court of Utah.\\nOct. 6, 1987.\\nS. Rex Lewis, Provo, for plaintiffs and appellants.\\nRay Phillips Ivie, Provo, for defendant and respondent.\", \"word_count\": \"1391\", \"char_count\": \"8874\", \"text\": \"DURHAM, Justice:\\nThe family of Earl Clark appeals a summary judgment in favor of State Farm (insurer). Clark was killed by an uninsured motorist who negligently hit the motorcycle Clark was driving. Clark had not insured his motorcycle, but had purchased insurance for his car from insurer. Clark's family sued insurer, attempting to collect under an uninsured motorist clause in the insurance policy issued for the car. We affirm the summary judgment in favor of insurer.\\nThe policy issued by insurer for the car contains an uninsured motorist clause, which is limited by another clause stating that the uninsured motorist insurance does not apply if the insured is driving a vehicle owned by him or a resident of the same household and the vehicle is not an \\\"owned motor vehicle\\\" under the policy. The policy defines \\\"owned motor vehicle\\\" as vehicles described in the declarations on the policy, temporary substitutes for those vehicles, and newly acquired vehicles. The parties agree that the motorcycle was not a temporary substitute or a newly acquired vehicle. Therefore, under the terms of the contract, the uninsured motorist clause does not apply to the motorcycle.\\nClark's family argues that the district court judge erred in giving the contractual language its plain meaning because Utah Code Ann. \\u00a7 41-12-21.1 (1981) (recodified in Utah Code Ann. \\u00a7 31A-22-302, 31A-22-305 (1986)) creates a personal right to uninsured motorist coverage and expresses a legislative statement of a public policy that forbids exceptions to uninsured motorist coverage.\\nThis case presents us with an issue that has received considerable judicial attention, but upon which the authority is divided. See, e.g., Calvert v. Farmers Insurance Co., 144 Ariz. 291, 294-95, 697 P.2d 684, 687-88 (1985) (providing an excellent summary of appellate cases on the issue). While a significant majority of courts has accepted the argument that uninsured motorist vehicle coverage is personal and an insurer cannot restrict it without violating public policy, see, e.g., Calvert, 144 Ariz. 291, 697 P.2d 684 (1985); Otto v. Farmers Insurance Co., 558 S.W.2d 713 (Mo.Ct.App.1977), other courts have found exclusionary clauses permissible. Holcomb v. Farmers Insurance Exchange, 254 Ark. 514, 495 S.W.2d 155 (1973); Herrick v. Liberty Mutual Fire Insurance Co., 202 Neb. 116, 274 N.W.2d 147 (1979); Employers' Fire Insurance Co. v. Baker, 119 R.I. 734, 383 A.2d 1005 (1978).\\nWe think the latter cases are more harmonious with the language of our statute and represent a better-reasoned approach. Utah Code Ann. \\u00a7 41-12-21.1 (1981) provides:\\n[N]o automobile liability insurance policy insuring against loss resulting from liability imposed by law for bodily injury or death or property damage suffered by any person arising out of the ownership, maintenance or use of a motor vehicle, shall be delivered, issued for delivery, or renewed in this state, with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or in a supplement to it, in limits for bodily injury or death set forth in section 41-12-5, under provisions filed with and approved by the state insurance commission for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. The named insured shall have the right to reject such coverage, and unless the named insured requests such coverage in writing, such coverage need not be provided in a renewal policy or a supplement to it where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.\\n(Emphasis added.)\\nWe do not think that the statute, which merely requires insurers to offer uninsured motorist coverage and authorizes motorists to waive the coverage, evinces a legislative intent to allow an individual to purchase insurance on one vehicle and obtain coverage on all the other vehicles in his household. Cf. Calvert v. Farmers Insurance Co., 144 Ariz. 291, 697 P.2d 684 (1985) (finding an exclusion clause invalid under an Arizona statute, which, unlike Utah's statute, mandates uninsured vehicle coverage without possibility of waiver). The legislative requirement that the coverage be offered on any motor vehicle in the state contradicts the Clarks' argument. If the legislature had intended to require uninsured motorist coverage only on one vehicle per household, it would have drafted the statute accordingly and would not have required that insurers offer the coverage on all vehicles. We agree with the Rhode Island Supreme Court, which interpreted statutory language nearly identical to that of section 41-12-21.1 and concluded:\\n[A]n insurance policy is a contract between the insured and the insurer.... There is nothing in the plain language of [our statute] which mandates the extension of that contract, as it relates to uninsured motorist or any other type of coverage, to other vehicles owned by [claimant] but not insured by her. [The statute] requires uninsured motorist coverage, unless specifically rejected by the insured, for all motor vehicle insurance policies in this state; the inclusion of this coverage within such policies is \\\"for the protection of persons insured thereunder.\\\" The [insurance] policy provided [claimant] the required uninsured motorist coverage under the policy-contract between parties. Under the terms of the . policy, [claimant's] ownership, maintenance or use of a motor vehicle other than the [car] covered by the policy is not insured. [Claimant] chose not to include coverage of her motorcycle within her . policy. This court will not extend uninsured motorist coverage to the motorcycle on the basis of [claimant's] unilateral attempt to modify the existing contract, . through her ownership of a second vehicle of which [insurer] had no constructive knowledge within the terms of their policy. We see in [our statute] neither the discretion nor the authority to do so.\\nEmployers' Fire Insurance Co., 119 R.I. at 741, 383 A.2d at 1008-09; see also Bergera v. Ideal National Life Insurance Co., 524 P.2d 599 (Utah 1974) (insurance policies are contracts).\\nAdditionally, we think that the statutory provision allowing a motorist to waive uninsured motorist coverage also requires a rejection of the Clark family's position. The legislature, in drafting the statute in question, required that each insured vehicle be offered uninsured motorist coverage, but simultaneously allowed each named insured to reject the coverage. Thus, coverage was intended to rest with the vehicle and not with the named insured, since owners can opt in favor of uninsured motorist coverage on some vehicles and against it on others. The statute, as written, does not exempt uninsured motorist coverage from \\\"other owned motor vehicle\\\" exclusions. We agree with the Nebraska Supreme Court, which interpreted a statute containing a nearly identical waiver provision and stated:\\n[The statute] requires that uninsured motorist coverage be included in any such policy delivered or issued for delivery in this state unless rejected by the insured. The purpose of the coverage is to protect the insured from uninsured motorists, motorists who do not have liability insurance on their vehicle. It is difficult to find a policy in the statute to protect one uninsured motorist from another uninsured motorist. This is what the Shipley [v. American Standard Ins. Co., 183 Neb. 109, 158 N.W.2d 238 (1968),] case referred to when it stated: \\\"An overriding public policy of protecting an owner-operator who inexcusably has no applicable bodily injury liability coverage is not presently discernible.\\\"\\nHerrick v. Liberty Mutual Fire Insurance Co., 202 Neb. 116, 118-19, 274 N.W.2d 147, 149 (1979) (emphasis added).\\nOur holding is also in harmony with our decision in Lyon v. Hartford Accident and Indemnity Co., 25 Utah 2d 311, 480 P.2d 739 (1971), overruled on other grounds, Beck v. Farmers Insurance Exchange, 701 P.2d 795 (Utah 1985), where we found valid an excess coverage escape clause that allowed an insurer to limit the amount it paid on uninsured motorists' claims to the policy limit minus any insurance payments collected from another source.\\nThe judgment of the trial court is affirmed.\\nHALL, C.J., STEWART, Associate C.J., and HOWE and ZIMMERMAN, JJ., concur.\"}"

utah/10412837.json

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+"{\"id\": \"10412837\", \"name\": \"Greg HACKFORD and Sherrie Hackford, Plaintiffs and Appellants, v. UTAH POWER & LIGHT CO., a Utah corporation, Western Petroleum, Inc., a Utah corporation, and Does I through X, Defendants and Respondents\", \"name_abbreviation\": \"Hackford v. Utah Power & Light Co.\", \"decision_date\": \"1987-06-09\", \"docket_number\": \"No. 20208\", \"first_page\": \"1281\", \"last_page\": \"1295\", \"citations\": \"740 P.2d 1281\", \"volume\": \"740\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:43:14.099706+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., concurs in the concurring opinion of HOWE, J.\", \"parties\": \"Greg HACKFORD and Sherrie Hackford, Plaintiffs and Appellants, v. UTAH POWER & LIGHT CO., a Utah corporation, Western Petroleum, Inc., a Utah corporation, and Does I through X, Defendants and Respondents.\", \"head_matter\": \"Greg HACKFORD and Sherrie Hackford, Plaintiffs and Appellants, v. UTAH POWER & LIGHT CO., a Utah corporation, Western Petroleum, Inc., a Utah corporation, and Does I through X, Defendants and Respondents.\\nNo. 20208.\\nSupreme Court of Utah.\\nJune 9, 1987.\\nC. Richard Henriksen, Jr., and David Michael Jorgensen, Salt Lake City, for plaintiffs and appellants.\\nRobert Gordon and David A. Westerby, Salt Lake City, for Utah Power & Light.\\nGary D. Stott and Michael K. Mohrman, Salt Lake City, for Western Petroleum.\", \"word_count\": \"10419\", \"char_count\": \"62265\", \"text\": \"ZIMMERMAN, Justice:\\nAppellant Sherrie Hackford appeals from a Rule 12(b)(6) dismissal of her claim for loss of consortium. The issue presented on appeal is whether in Utah a wife may maintain an action for loss of consortium for an injury to her husband caused by a third party's alleged negligence. We adhere to our prior decisions and hold that neither spouse has a right to recover for the loss of consortium under Utah law. The judgment below is affirmed.\\nSherrie Hackford alleges in her complaint that her husband, Greg Hackford, suffered an incapacitating injury when his head came in contact with a high-tension electrical power line maintained by defendant Utah Power & Light Company. She further alleges that as a result of her husband's severe and permanent injuries, she has lost the services, society, companionship, advice, and conjugal fellowship her husband otherwise would have been able to provide. Utah Power & Light Company filed a Rule 12(b)(6) motion to dismiss Hackford's claim. The trial court granted the motion to dismiss based on the authority of Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985 (1972), and Tjas v. Proctor, 591 P.2d 438 (Utah 1978). Those cases held that the common law cause of action for loss of consortium had been abolished in Utah by the Married Woman's Act of 1898.\\nOn appeal, Hackford's principal argument is that Ellis and Tjas were wrongly decided, as was the earlier decision on the same issue by United States District Judge Sherman Christensen in Black v. United States, 263 F.Supp. 470 (D. Utah 1967). She contends that the common law right of a husband to sue for loss of consortium does exist in Utah and that it should be made equally available to wives.\\nAs a preliminary matter, it is necessary to briefly review the Married Woman's Act and the Ellis, Tjas, and Black decisions. At common law, \\\"a husband had a claim for loss of consortium against one who negligently injured his wife, though the wife had no corresponding right.\\\" Black v. United States, 263 F.Supp. at 471. In 1898, the common law of England was expressly adopted as the law that should govern in the Utah courts,\\nso far as it is not repugnant to, or in conflict with, the constitution or laws of the United States, or the constitution or the laws of this state and so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people hereof....\\nR.S.1898 ch. 1907, \\u00a7 2488; Utah Code Ann. \\u00a7 68-3-1 (1986). In 1898, the Utah legislature also passed the Married Woman's Act, which provides in pertinent part:\\nThere shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.\\nUtah Code Ann. \\u00a7 30-2-4 (1984).\\nThe effect of this statute on the common law right to sue for loss of consortium was not considered in a judicial opinion until 69 years later, when Judge Christensen wrote his lengthy opinion in Black. Judge Christensen was confronted with a complaint seeking damages for loss of consortium. The action was in federal court by reason of diversity jurisdiction, and the governing law was that of Utah. Judge Christensen thought that the Married Woman's Act could be read as abolishing the loss-of-consortium cause of action because a loss-of-consortium cause of action could be characterized as a husband's right of recovery \\\"on account of personal injury or wrong to his wife,\\\" but he also conceded that the Act's intent was less than clear. He then made an extensive analysis of the law as it was apparently understood by the Utah courts and bar. He found that the loss-of-consortium cause of action was entirely unknown to the Utah courts and bar from the turn of the century until the 1960s. Given this fact and the wording of the Married Woman's Act, Judge Christensen concluded that the existence of the cause of action was sufficiently problematic that he would not permit such a claim to be presented in federal court.\\nThe Utah Supreme Court did not consider the impact of the Married Woman's Act on the loss-of-consortium cause of action until five years after Black. In Ellis, the Court summarily disposed of a husband's claim for loss of consortium by stating that the Married Woman's Act had placed a husband and a wife on equal footing: neither had such a claim.. In Tjas, the Court similarly disposed of a woman's cause of action for loss of consortium. Neither Ellis nor Tjas contains any detailed explication of the Act's rather uncertain language.\\nIn asking that we hold that a loss-of-consortium cause of action does exist in Utah and that it extends to wives as well as husbands, Hackford argues that a careful reading of the Married Woman's Act in context shows that it had no impact on the loss-of-consortium cause of action. Specifically, she contends that the right to sue for loss of consortium is a .right to sue for harm done not to the wife, but to the interest the husband has in his relationship with his wife. Therefore, the Married Woman's Act is best read as simply empowering a married woman to sue in her own name for physical injuries done to her. At common law, she had no such right; only a husband could sue for injuries suffered by his wife. This construction of the Married Woman's Act leaves the loss-of-consortium cause of action alive and well and available to vindicate a spouse's relational interest that is harmed when the other spouse is disabled from fulfilling his or her role in the relationship.\\nHackford suggests that if we agree with her reading of the statute, we should not feel bound to follow our contrary decisions in Ellis and Tjas, but should consider the matter as though it were presented to us for the first time. As a basis for disregarding Ellis and Tjas, she argues that in those cases, this Court blindly followed the federal court decision in Black v. United States, 263 F.Supp. 470 (D. Utah 1967), which was wrongly decided. Therefore Ellis and Tjas do not represent an independent determination of the issue by this Court and ought not be accorded any real precedential weight.\\nWhatever merit there might be to Hack-ford's interpretation of the Married Woman's Act in the abstract, we do not think that Ellis and Tjas can be so easily ignored. First, despite Hackford's suggestion to the contrary, Black did not purport to settle Utah law on the question of whether the loss-of-consortium cause of action had been abolished by the passage of the Married Woman's Act. All Judge Christensen did was decide that in the absence of any decision from this Court on the point, his duty was to attempt to determine the law of Utah and follow it. Because he believed the matter to be in doubt, Judge Christensen decided that it was inappropriate for a federal court to declare the existence of the cause of action. He expressly stated that if the cause of action existed in Utah, that fact would have to be announced by the legislature or by this Court. This hardly amounts, to a definitive statement of Utah law.\\nSecond, Ellis and Tjas do not represent a blind following of Black. The Court in Ellis did not rely, uncritically or otherwise, on Black. Although Black was decided in 1967, five years before Ellis, Black was not mentioned in the briefs filed with this Court by the parties to the Ellis appeal, and it was not mentioned by the Court in the Ellis opinion. Therefore, Ellis must be considered to be an independent interpretation of the Married Woman's Act.\\nThe briefs in Tjas did cite Black, and the opinion cited Black. However, Ellis was not cited to or by the Tjas Court. Tjas, then, amounted to a second and independent interpretation of the Married Woman's Act by this Court that conforms in result to that in Ellis. This conclusion is not negated by the fact that Black was cited by the Tjas Court. Given the fact that Judge Christensen did not purport to answer definitively the question of what the Utah law was on the loss-of-consortium issue, the mere fact that the Tjas Court cited Black does not mean that one can fairly imply, as does Hackford, that the Tjas Court did not reach or independently consider the arguments of the parties on the loss-of-consortium question.\\nWhat we have, then, are two relatively recent decisions of this Court interpreting an 1898 statute and holding that the loss-of-consortium cause of action does not exist in Utah. Should we accept Hackford's arguably \\\"better\\\" interpretation of the Married Woman's Act and overturn those decisions simply because neither represents a long-settled judicial interpretation of the statute and neither contains a particularly persuasive analysis of the issue? The answer must take into account the fact that we are not dealing with an interpretation of the common law, which this Court may alter to conform with evolving standards and changing times. Rather, we are dealing with an interpretation of a statute.\\nAsa general proposition, a judicial interpretation of a statute becomes a gloss on that statute that is, in effect, part of the statute. Ordinarily, changes in statutes and their glosses are best left to the legislature. However, there are no absolutes in this area. As a practical matter, we can and do, on occasion, depart from a prior statutory interpretation. The real question is whether, in a given case, we should take this rather unusual step. Several factors are pertinent to that determination, among which are the plausibility of the existing interpretation given the statute, the degree to which that interpretation has worked itself into the state of the law, and the strength of the arguments for changing that interpretation.\\nBefore discussing the plausibility of the interpretation Ellis, Tjas, and Black gave to Utah's Married Woman's Act, a rather lengthy digression is necessary to set the stage. The traditional common law justification for the loss-of-consortium cause of action that a husband had for the injury of his wife was that the husband had lost the services of his wife and was entitled to recover their value. See, e.g., W. Prosser & W. Keeton, The Law of Torts \\u00a7 125, at 931-32 (5th ed. 1984). The concept of the services owed to the husband by the wife came to include affection, society, and sexual relations. See, e.g., Holbrook, The Change in the Meaning of Consortium, 22 Mich.L.Rev. 1, 2 (1923); Prosser & Keeton, supra, at 931. However, this broader concept of services was still treated as a characteristic of the husband's \\\"interest\\\" in his wife, rather than as an aspect of a \\\"relationship\\\" participated in by both parties. See Holbrook, supra, 22 Mich.L.Rev. at 2-4; Comment, Negligent Injury to Family Relationships: A Reevaluation of the Logic of Liability, 77 Nw.U.L.Rev. 794, 796-97 (1983).\\nAround the turn of this century, many states, including Utah, passed married women's acts. In the years that followed, the courts almost unanimously held that these acts did not confer upon a wife the right to sue one who negligently injured her husband for any resulting loss of consortium, although the husband was generally held to have retained his right to sue. See Holbrook, supra, 22 Mich.L.Rev. at 4-7. The reasons given for this disparate treatment of husband and wife varied; to avoid it, some courts went so far as to abolish the husband's right to sue for loss of consortium. Id. at 7; Comment, supra, 77 Nw.U.L.Rev. at 797-98. It appears that courts refused to recognize a wife's right to sue for a loss of consortium largely for two reasons. First, they had misgivings about the consequences of expanding the availability of the cause of action, such as the possibility of double recovery by a husband and a wife for the same harm. Second, their thinking on the issue was bounded by the common law's conceptualization of the cause of action as being based on a husband's right to his wife's services. Since the wife had no analogous right to her husband's services, she had no theoretical grounding for a loss-of-consortium cause of action. See Prosser & Keeton, supra p. 5, at 931; Comment, supra p. 1284, 77 Nw.U.L.Rev. at 797-98.\\nIn 1950, this conceptual barrier to expansion of the cause of action was shattered by the United States Court of Appeals for the District of Columbia Circuit in Hitaffer v. Argonne Co., 183 F.2d 811 (D.C.Cir.), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), overruled on other grounds sub nom., Smither and Co. v. Coles, 242 F.2d 220 (D.C.Cir.1957). The Hitaffer court discarded the traditional right-to-services basis for the cause of action and adopted Prosser's statement that \\\"[t]he loss of 'services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband.\\\" 183 F.2d at 818 (quoting W. Prosser, Handbook of the Law of Torts, at 948 (1941)). The court held that the wife had an equal interest in the marital relationship and an equal right to sue for loss of consortium. The logic of Hitaffer was apparently irresistible, for it quickly resulted in the almost universal extension to the wife of a loss-of-consortium cause of action. See Prosser & Keeton, supra p. 1284, at 932; Comment, supra p. 1284,77 Nw.U.L.Rev. at 798.\\nThis background is necessary because it serves to place Utah's 1898 Married Woman's Act in historical perspective. In appraising the plausibility of the interpretation given the Married Woman's Act in Ellis and Tjas, Hackford argues as though the Hitaffer view of the cause of action was in vogue at the time Utah's statute was passed. In fact, it was not. She also argues as though it is utterly unreasonable to interpret the Married Woman's Act as having abolished the husband's loss-of-consortium cause of action. We disagree.\\nThe Act provides that \\\"[tjhere shall be no right of recovery by the husband on account of personal injury or wrong to his wife_\\\" Utah Code Ann. \\u00a7 30-2-4 (1984). In 1898, the cause of action was understood to rest on the husband's common law right to his wife's services, rather than the post-Hitaffer view that the action is for harm to the more intimate and personal interest in the relationship between husband and wife. Against this common law conceptualization of the cause of action, it does not seem entirely illogical to construe the language of the Married Woman's Act as eliminating the husband's right to recover for the loss of his wife's services \\\"on account of personal injury or wrong\\\" done to her by a third party. And that may be exactly the reading Judge Christensen found that the members of the Utah Bar had given the provision during the first half of this century before Hitaf-fer was decided. This would account for the rather surprising lack of any decisions by this Court on the issue until comparatively recently and for the observation of Judge Christensen in Black that the cause of action was essentially unknown to the Utah Bar.\\nAs demonstrated above, then, there is a measure of plausibility to the interpretation given the Act by Ellis Tjas, and Black, although the treatment given the issue in Ellis and Tjas are certainly not models of analysis or persuasion.\\nThe next question in determining whether we should depart from the existing interpretation of the Married Woman's Act is whether that interpretation has become so fixed in the fabric of the law that it is beyond our reach. This aspect of the inquiry raises several subsidiary issues. The first is whether the interpretation in question has become settled in the minds of the bench and bar. Here we are confronted with an unusual situation. Normally, an interpretation of a statute achieves a \\\"settled\\\" status only after this Court decides the issue and that interpretation then remains unchallenged for many years. See Mountain States Telephone and Telegraph Co. v. Salt Lake County, 702 P.2d 113 (Utah 1985). However, here the law has followed a somewhat different course. The bar and bench first informally construed the Married Woman's Act as having modified the common law; only later did this Court recognize that construction. We see no fundamental reason why the order of events should make any difference in deciding whether we should depart from the decisions in question. Without regard to the order of proceeding, the fact remains that if we depart from Ellis and Tjas, we will change an interpretation of the Married Woman's Act that has been settled insofar as the bar is concerned for almost 90 years. This certainly argues for adhering to Ellis and Tjas on the ground that the interpretation they reflect has become a part of the law. See id.\\nBut it is not enough to say that an interpretation is settled. Whether we should deem it to be beyond our reach to change also should depend on the degree to which the interpretation, however old, has been woven into the fabric of the law. See id. at 118-19 (Zimmerman, J., concurring). Here, there were no cases on the question until relatively recently, and the legislature has not amended the Married Woman's Act since its passage; therefore, we have no strong reason to believe that it has adopted the interpretation set forth in Ellis and Tjas. See id. This argues that we accord the interpretation less reverence because while the interpretation is settled, it is not so enmeshed in the substance of the law that it could not easily be changed without having many unanticipated ramifications and without conflicting with real or presumed legislative intentions. Another related factor relevant to the weight to be accorded the interpretation set out in Ellis and Tjas is that it operates to modify a common law cause of action, not to construe a statute that operates in an area of the law which is largely the province of the legislature. Cf. id. This factor, too, argues for less reverence for the interpretation at issue.\\nOverall, then, the principal argument for letting the Ellis and Tjas interpretation stand is its settled nature. However, we judge that alone to be an insufficient reason to place a reappraisal of its correctness beyond our reach. But even under these circumstances, persuasive policy reasons must exist which would justify taking that step. We do not find them here.\\nHackford argues that the loss-of-consortium cause of action is necessary to vindicate the interests of the parties in their mutual relationship and to compensate them for harm done to that interest, a la Hitaffer. But it is not enough to rely on the perceived need to compensate someone for a harm suffered. There are other equally weighty practical factors that must be taken into account in evaluating claims for expanded tort causes of action. Beck v. Farmers Insurance Exchange, 701 P.2d 795, 798-800 (Utah 1985); see, e.g., Sugarman, Doing Away with Tort Law, 73 Calif. L.Rev. 555 (1985); Comment, supra p. 5, 77 Nw.U.L.Rev. 794 (1983). For example, we should consider very carefully where we may later be led by the adoption of such a cause of action and endorsement of its current conceptual foundation.\\nAs the previous discussion of Hitaffer suggests, the new \\\"relationship\\\" conceptual ground for the loss-of-consortium cause of action is quite different from that upon which the cause of action was based at the time of the passage of our Married Woman's Act. This means that by announcing the existence of this cause of action in Utah, we would, in effect, be establishing a cause of action that has the potential to evolve into something quite different from the cause of action Ellis and Tjas held was abolished by the Act. There is nothing inherent in the logic of the cause of action as it is now recognized around the country that limits its availability to spouses. It could as easily be extended to all negligent infliction of emotional harm upon children, in-laws, lovers, and close friends. In recent years, courts and commentators have struggled mightily to find limiting principles for claims based on such relational interests, but appear to have failed. See, e.g., Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 525 P.2d 669, 115 Cal.Rptr. 765 (1974); Borer v. American Airlines, Inc., 19 Cal. 3d 441, 563 P.2d 858, 138 Cal.Rptr 302 (1977); Butcher v. Superior Court, 139 Cal.App.3d 58, 188 Cal.Rptr 503 (4th Dist.1983); Grant v. Avis Rent A Car System, Inc., 158 Cal.App.3d 813, 204 Cal.Rptr 869 (Cal.Ct.App.2d Dist.1984); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982); Note, Loss of Consortium: Should California Protect Cohabitants' Relational Interest?, 58 S.Cal.L.Rev. 1467 (1985); Note, Limiting the Cause of Action for Loss of Consortium, 66 Calif.L.Rev. 178, 430-46 (1978); Note, The Child's Right to Sue for Loss of a Parent's Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722 (1976); cf. Developments in the Law \\u2014 The Constitution and the Family, 93 Harv.L. Rev. 1156, 1270-95 (1980). As review of these sources demonstrates, the result is profound confusion about where the limits of the cause of action lie and rather arbitrary line-drawing.\\nUnder these circumstances, we do not find persuasive the policy reasons for departing from Ellis and Tjas. If the cause of action argued for by the appellant is to be created anew in Utah, it should be done by the legislature.\\nThe trial court is affirmed.\\n. Having said that it is not unreasonable to interpret the Act as abolishing the loss-of-consortium cause of action, we recognize that this is not the only reasonable construction of the Act. If we were considering the Act today on a clean slate, we might follow Hackford's reading. Her construction does seem to accord with the plain meaning of the statute.\\n. Of central importance here is the fact, noted by Judge Christensen in Black, that from the turn of the century until the mid-1960s, the bench and bar of Utah assumed that the cause of action did not exist, a fact confirmed by Ellis and Tjas. Nothing in the appellant's briefs contests Judge Christensen's statement of the assumed status quo.\\n. Utah's statutory recognition of recovery for wrongful death and this Court's recognition of an action for alienation of affection do not argue for recognition of the loss-of-consortium cause of action. The wrongful death action seems distinguishable from a loss-of-consortium claim. See Comment, supra p. 5, 77 Nw.U.L. Rev. at 810-12. But even if logic cannot entirely support the distinction, see Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318, 331 (1982); Borer v. American Airlines, Inc., 19 Cal.3d 441, 563 P.2d 858, 866, 138 Cal.Rptr. 302, 310 (1977) (Mosk, J., dissenting), logic is not the sole measure by which the extension of a cause of action is to be judged. The fact that the constitution and the legislature have recognized one cause of action does not mean that we must adopt any cause of action that can cast itself in a similar light.\\nAs for this Court's recognition of the alienation-of-affection cause of action in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983), its contin ued existence is a historical anomaly and should not be relied on to create new causes of action.\"}"

utah/10412953.json

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+"{\"id\": \"10412953\", \"name\": \"H.C. HENINGER and Doris W. Heninger, Plaintiffs and Respondents, v. NINTH CIRCUIT COURT, STATE OF UTAH, WASHINGTON COUNTY, St. George Department, and Robert F. Owens, Circuit Judge, Defendants and Appellants\", \"name_abbreviation\": \"Heninger v. Ninth Circuit Court\", \"decision_date\": \"1987-07-09\", \"docket_number\": \"No. 20976\", \"first_page\": \"1108\", \"last_page\": \"1111\", \"citations\": \"739 P.2d 1108\", \"volume\": \"739\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:21:22.136533+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., STEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\", \"parties\": \"H.C. HENINGER and Doris W. Heninger, Plaintiffs and Respondents, v. NINTH CIRCUIT COURT, STATE OF UTAH, WASHINGTON COUNTY, St. George Department, and Robert F. Owens, Circuit Judge, Defendants and Appellants.\", \"head_matter\": \"H.C. HENINGER and Doris W. Heninger, Plaintiffs and Respondents, v. NINTH CIRCUIT COURT, STATE OF UTAH, WASHINGTON COUNTY, St. George Department, and Robert F. Owens, Circuit Judge, Defendants and Appellants.\\nNo. 20976.\\nSupreme Court of Utah.\\nJuly 9, 1987.\\nDavid L. Wilkinson and Diane Wilkins, Salt Lake City, for defendants and appellants.\\nGary Pendleton and Paul Graf, St. George, for plaintiffs and respondents.\", \"word_count\": \"1508\", \"char_count\": \"9467\", \"text\": \"HOWE, Justice:\\nThis is an appeal of a summary judgment granted by the Fifth District Court on a petition for an extraordinary writ. In granting the writ, the district court reversed the Ninth Circuit Court's forfeiture of four bail bonds and enjoined the circuit court's revocation of respondents' bonding authority.\\nRespondents H. C. and Doris Heninger were authorized bondsmen for the Ninth Circuit Court. They filed undertakings of bail with that court in four separate drunk driving cases. Each of the defendants pleaded guilty and were sentenced to sixty days in the county jail and to pay a fine and a surcharge. In each case, fifty-eight days of the sentence were suspended and the defendant was put on probation. Three of the four defendants surrendered themselves to the Washington County Jail to serve the remaining two days. The fourth failed to appear for execution of the sentence. Not one of the four defendants paid the fine.\\nBond forfeiture hearings were held, and all four bonds were forfeited. The circuit court ruled that the bonds continued in force during probation until all terms of the sentences had been satisfied. Respondents sought review of the forfeiture order in Fifth District Court by extraordinary writ. They also sought a declaration of the duration of a bondsman's liability. The day after respondents' petition was filed, the circuit judge sent a letter to the Washington County sheriff instructing him to no longer accept bonds from respondents. Respondents amended their petition to seek a writ of prohibition barring enforcement of the revocation of their bonding authority-\\nOn motion for summary judgment, the district court held that an order revoking respondents' bonding authority was prohibited unless and until they were provided notice of the basis for the revocation and were given a full hearing on their qualifications to act as bondsmen in the circuit court. The court further decreed by way of declaratory judgment that the obligation of a bondsman is fulfilled by the production of the defendant at all times required by the court, up to and including the imposition of sentence, at which time the bond is exonerated by operation of law. Based on this reasoning, respondents were released from liability on the four bonds.\\nThe first issue is whether the district court erred in granting extraordinary relief. Appellants maintain that the proper avenue for relief would have been by direct appeal of the forfeiture ruling to the district court, and since respondents did not lodge such an appeal, they should have been precluded from seeking extraordinary relief. This argument must fail. Under our case law, a bond forfeiture order is reviewable on appeal from a final judgment, but standing alone, the order is not appealable. People v. Tremayne, 3 Utah 331, 3 P. 85 (1884). Where no appeal of the conviction was sought and no direct appeal of the forfeiture order was thus available, the district court did not err in allowing respondents to proceed by petition for an extraordinary writ.\\nAppellants also claim that the district court improperly exercised supervisory power over the circuit court by issuing the writ. Both article VIII of the Utah Constitution (the judicial article) and title 78 of the Utah Code (the judicial code) have undergone substantial revisions since this action was filed. Among the many amendments that have been made, the language specifically granting the district court supervisory control over inferior courts was eliminated from article VIII and title 78. Appellants argue that the elimination of that language prevents the district court from granting the extraordinary relief sought in this case. We do not agree. Under the law at the time this action was commenced, the district court clearly had power to issue extraordinary writs. Nothing in the amendments to the judicial article of the constitution or the judicial code stripped the court of that power. The power of the district court to issue \\\"all extraordinary writs\\\" is found in the language of the constitution and statutes both prior and subsequent to the recent amendments. The elimination of the \\\"supervisory control\\\" language was made in preparation of the shifting of direct appeals of circuit court judgments from the district court to the court of appeals. However, eliminating the supervisory control of the district court over circuit courts does not curtail the exercise of powers granted the district court, by constitutional provision (article VIII, section 5) and statute (Utah Code Ann. \\u00a7 78-3-4 (1987)), to issue \\\"all extraordinary writs.\\\"\\nAppellants next contend that the district court misread Utah Code Ann. \\u00a7 77-20-7(1) (1982), which defines the duration of liability on an undertaking of bail. It provides:\\nThe principal and the sureties on the written undertaking are liable thereon during all proceedings and for all appearances required of the defendant up to and including the surrender of the defendant in execution of any sentence imposed irrespective of any contrary provision in the undertaking.\\n(Emphasis added.)\\nThe district court in the declaratory judgment portion of its order held that \\\"the obligation of the bondsman is fulfilled by the producing of the person . up to and including the time of sentence and that the bail bond is exonerated upon the imposition of the Court's sentence.\\\" (Emphasis added.) This interpretation of the above statute is in error. The statute extends liability for all appearances \\\"up to and including surrender of the defendant in execution of any sentence imposed.\\\" This phrase clearly indicates an intent to extend liability beyond the imposition of sentence. It contemplates the defendant's appearing and surrendering himself to serve his sentence.\\nAppellants urge that all the terms of the sentence, including payments of any fine imposed, and any other terms of probation must be fulfilled before the bond is exonerated. We disagree. City of Atlanta v. Turner, 8 Ga.App. 213, 68 S.E. 847 (1910), is illustrative of the problem in the instant case. There the defendant was sentenced to one week on the chain gang and to pay a fine. He served the sentence but failed to pay the fine. In affirming the lower court's refusal to order forfeiture of the bond, the Georgia Court held that \\\"the prisoner having personally appeared and surrendered himself into custody for punishment in accordance with the sentence, the bondsman was discharged from further liability. The other obligor, the prisoner, remains liable for the fine.\\\"\\nIf a defendant is sentenced to incarceration and ordered to surrender himself at a particular time and place to a court-designated authority, the bond remains in force to assure \\\"surrender in execution of sentence.\\\" However, the bondsman is liable only for \\\"all appearances required of the defendant.\\\" He is not liable for payment of the defendant's fine, nor is he liable for the defendant's fidelity to the terms of his probation. While the bondsman is given power to arrest the defendant in order to insure his appearance, he is not given powers that would allow him to enforce payment of a fine or coerce particular behavior required by the terms of probation. Where no further appearance is required of the defendant, the bondsman has fulfilled his contractual and statutory obligation and is entitled to exoneration of the bond.\\nIn the instant case, when defendants Samuel Benally, Jonathan Marshall, and Dennis Ashcroft appeared and served their two-day sentences, the bondsmen were entitled to exoneration of the bonds since those defendants appeared \\\"in execution of sentence.\\\" Conversely, when Jeffrey Greening failed to appear as required by the court, his bond was properly forfeited.\\nLastly, appellants correctly observe that circuit courts have the inherent power and right to authorize and regulate under takings of bail in their courts. In the exercise of that power, appellants argue, notice of and hearing on the revocation of respondents' bonding authority was not required. We disagree. The inherent power of the court to authorize and regulate bondsmen should be exercised in a fair and open manner, avoiding any appearance of arbitrariness. This can only be accomplished by notice to affected persons, giving them an opportunity to be heard, and a reasoned explanation of the court's decision. Any procedure short of this could adversely reflect upon the judiciary and its processes.\\nWe hold that the circuit court abused its discretion in not providing notice and hearing prior to termination of respondents' bonding authority. We consequently affirm that part of the summary judgment barring termination of respondents' bonding authority without notice and hearing. We reverse that part dealing with bondsman's liability. The order exonerating the bonds is also reversed and remanded with directions to exonerate only the bonds of Benally, Marshall, and Ashcroft, who appeared to serve their jail sentences.\\nHALL, C.J., STEWART, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.\"}"

utah/10413262.json

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+"{\"id\": \"10413262\", \"name\": \"STATE of Utah, Plaintiff and Respondent, v. Jerry Joe MEDINA, Defendant and Appellant\", \"name_abbreviation\": \"State v. Medina\", \"decision_date\": \"1987-04-23\", \"docket_number\": \"No. 20629\", \"first_page\": \"1021\", \"last_page\": \"1024\", \"citations\": \"738 P.2d 1021\", \"volume\": \"738\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:30:26.267325+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., STEWART, Associate C.J., and HOWE and DURHAM, JJ\\u201e concur.\", \"parties\": \"STATE of Utah, Plaintiff and Respondent, v. Jerry Joe MEDINA, Defendant and Appellant.\", \"head_matter\": \"STATE of Utah, Plaintiff and Respondent, v. Jerry Joe MEDINA, Defendant and Appellant.\\nNo. 20629.\\nSupreme Court of Utah.\\nApril 23, 1987.\\nKenneth R. Brown, Jerold D. McPhie, for defendant and appellant.\\nDavid L. Wilkinson, Earl F. Dorius, for plaintiff and respondent.\", \"word_count\": \"1480\", \"char_count\": \"8856\", \"text\": \"ZIMMERMAN, Justice:\\nDefendant Jerry Joe Medina appeals from a conviction of murder in the second degree. He contends that the trial court impermissibly interfered with his right to a jury trial when it gave the jury a modified version of the \\\"dynamite\\\" or \\\"Allen \\\" charge. He also argues that his trial counsel's failure to object to the giving of the charge was so improper as to deny him the effective assistance of counsel. We affirm.\\nThere is no need to discuss the circumstances of the crime with which defendant was charged. For purposes of this appeal, only the circumstances surrounding the giving of the modified Allen charge are pertinent.\\nThe jury began its deliberations at 10:30 a.m. on Friday, March 1, 1985. At approximately 6:10 p.m., after deliberating for almost eight hours, the jury sent the following question to the judge: \\\"What procedure do we follow if because of lack of evidence either way we keep coming up with an uneven vote. At what point are we hung?\\\" The judge recalled the jury to the courtroom at 6:30 p.m. for the purpose of giving it a modified Allen charge. The court had previously distributed copies of the proposed instruction to counsel for the prosecution and defense. It then asked if either side had any objection to the proposed instruction. Defense counsel replied, \\\"I have no objection. I have read it,\\\" and the State also answered, \\\"I have no objection.\\\" The court then gave the charge. The jury returned to deliberate at 6:35 p.m., and at 8:30 p.m., it returned a verdict of guilty.\\nDefendant Medina's brief sets forth additional facts taken from his own affidavit, which accompanied a motion filed with this Court to remand the matter for an eviden-tiary hearing. In the affidavit, Medina asserts that after the jury sent out its question and the possibility of a hung jury became apparent, a discussion ensued between Medina and his counsel over the wisdom of permitting the court to give the Allen charge. Medina states that his counsel did not want to object to the instruction, but Medina clearly instructed his 'counsel that he wanted a new trial and did not want further instructions given to the jury. The affidavit asserts that Medina was betrayed when his counsel registered no objection to the giving of the Allen charge.\\nMost of the arguments before this Court are directed to whether any form of dynamite charge is permissible and, if so, whether the modified Allen charge given below was acceptable. We do not have occasion to reach that issue today because it was not properly preserved below.\\nThe usual rule is that \\\"[n]o party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the ground of his objection.\\\" Utah R.Crim.P. 19(c) (codified at Utah Code Ann. \\u00a7 77-35-19(c) (1982)). In the present case, defense counsel not only failed to object to the proposed instruction, but she affirmatively stated that after reading it, she had \\\"no objection.\\\" Only at this point did the judge give the jury the instruction.\\nMedina recognizes that the failure to object to the instruction presents a barrier to our consideration of the propriety of the modified Allen charge. See, e.g., State v. Malmrose, 649 P.2d 56 (Utah 1982). However, he attempts to overcome this obstacle by relying on an exception to the general rule of Utah Rule of Criminal Procedure 19(c), which is contained in the last sentence of that rule. That sentence reads: \\\"Notwithstanding a party's failure to object, error may be assigned to instructions in order to avoid a manifest injustice.\\\" Utah Code Ann. \\u00a7 77-35-19(c) (1982).\\nIt is true that in reliance on this provision, we have considered the propriety of instructions with respect to which an objection has not been made below. However, uniformly these have been situations where counsel for the party complaining on appeal merely remained silent at trial. See, e.g., State v. Lesley, 672 P.2d 79, 81 (Utah 1983); State v. Smith, 90 Utah 482, 62 P.2d 1110 (1936). The instant case presents a very different situation. Here, defense counsel did not remain silent; rather, she actively represented to the court that she had read the instruction and had no objection to it. Apparently, Medina's counsel considered the issue and consciously decided that it was in Medina's interest to have the instruction given. Although in retrospect this decision may appear to have been ill-advised, the fact remains that counsel consciously chose not to assert any objection that might have been raised and affirmatively led the trial court to believe that there was nothing wrong with the instruction. Under such circumstances, we decline to review the instruction under the manifest error exception to Rule 19(c).\\nMedina also seeks reversal on the ground that he was denied effective assistance of counsel when his lawyer violated his express instructions and refused to object to the Allen charge. This contention must be rejected for two reasons. First, it is based almost entirely on self-serving affidavits that are not part of the record. For obvious reasons, we cannot accept after-the-fact claims that there was a conflict with counsel, unless the defendant has made his disagreement with counsel apparent on the record. See State v. Wood, 648 P.2d 71, 91 (Utah 1982) (conflict between defendant and trial counsel was apparent on the record), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982); State v. Cook, 714 P.2d 296, 297 (Utah 1986) (references to matters outside the record will not be considered); State v. Wulffenstein, 657 P.2d 289, 292-93 (Utah 1982), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983).\\nSecond, defense counsel's decision to approve the Allen charge was a trial tactic or strategy and, as such, was \\\"within the prerogative of trial counsel and [could] not be dictated by [the] client. Decisions as to . what objections to make . are generally left to the professional judgment of counsel.\\\" State v. Wood, 648 P.2d at 91 (citing State v. Gray, 601 P.2d 918 (Utah 1979); State v. Pierren, 583 P.2d 69 (Utah 1978); State v. McNicol, 554 P.2d 203 (Utah 1976)). If the minority of jurors had been for conviction, the proffered charge might have encouraged them to reconsider their position and to acquit defendant. Defense counsel apparently thought it tactically wise to refrain from objecting to the charge. The fact that counsel's strategy appears ineffective in hindsight is of no consequence.\\nDefendant's remaining contentions are without merit. We affirm the conviction.\\nHALL, C.J., STEWART, Associate C.J., and HOWE and DURHAM, JJ\\\" concur.\\n. The Allen charge takes its name from a United States Supreme Court case, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). In that case, the Court approved a supplemental instruction or charge which was given to a jury that was having difficulty arriving at a unanimous verdict. The Allen charge was summarized by the Court as follows:\\nThese instructions were quite lengthy, and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.\\nId. at 501, 17 S.Ct. at 157. In the years since Allen was decided, many courts have expressed concern about the continued propriety of the instruction because of its perceived tendency to pressure jurors to give up their sincere convictions simply because a majority takes a different view. See, e.g., People v. Gainer, 19 Cal.3d 835, 566 P.2d 997, 139 Cal.Rptr. 861 (1977); State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959). Whatever merit there may be to these concerns, we do not address them today.\"}"

utah/10423193.json

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+"{\"id\": \"10423193\", \"name\": \"ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. William J. BLISS and Veora Bliss, Defendants and Respondents, v. D. Dale WILLIAMS, Executive Director, Department of Administrative Services, State of Utah, as Administrator of the Utah State Insurance Fund, Defendant and Appellant\", \"name_abbreviation\": \"Allstate Insurance Co. v. Bliss\", \"decision_date\": \"1986-09-11\", \"docket_number\": \"No. 19289\", \"first_page\": \"1330\", \"last_page\": \"1334\", \"citations\": \"725 P.2d 1330\", \"volume\": \"725\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:15:16.484730+00:00\", \"provenance\": \"CAP\", \"judges\": \"HALL, C.J., and HOWE, STEWART and DURHAM, JJ., concur.\", \"parties\": \"ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. William J. BLISS and Veora Bliss, Defendants and Respondents, v. D. Dale WILLIAMS, Executive Director, Department of Administrative Services, State of Utah, as Administrator of the Utah State Insurance Fund, Defendant and Appellant.\", \"head_matter\": \"ALLSTATE INSURANCE COMPANY, Plaintiff and Respondent, v. William J. BLISS and Veora Bliss, Defendants and Respondents, v. D. Dale WILLIAMS, Executive Director, Department of Administrative Services, State of Utah, as Administrator of the Utah State Insurance Fund, Defendant and Appellant.\\nNo. 19289.\\nSupreme Court of Utah.\\nSept. 11, 1986.\\nDavid L. Wilkinson, Atty. Gen., Frank V. Nelson, Asst. Atty. Gen., Salt Lake City, for State.\\nJames R. Black, Susan B. Diana, Salt Lake City, for State Ins. Fund.\\nGary B. Ferguson, Salt Lake City, for Allstate.\\nRussell J. Hadley, Salt Lake City, for Bliss.\", \"word_count\": \"1831\", \"char_count\": \"11272\", \"text\": \"ZIMMERMAN, Justice.\\nDefendant Utah State Insurance Fund (\\\"the Insurance Fund\\\") appeals from the grant of a summary judgment denying its claim for reimbursement of money it was required to pay into the Second Injury Fund under section 35-l-68(2)(a) of the Code by reason of the job-related death of one Karen Bliss. U.C.A., 1953, \\u00a7 35-1-68(2)(a) (Repl.Vol. 4B, 1974, Supp.1986). The Insurance Fund had sought reimbursement from settlement proceeds received by Karen's parents, William and Veora Bliss (\\\"the Blisses\\\") in a related wrongful death action against Allstate Insurance Company. The trial court ruled that the Insurance Fund could neither invade the Blisses' recovery nor pursue a separate claim against Allstate in order to recover the amount paid into the Second Injury Fund. We affirm both rulings.\\nThe facts of this case are relatively simple, but its procedural history is rather convoluted. The Blisses' daughter, Karen, was a driver for Airport Shuttle Parking. She died in March of 1980 as a result of a work-related automobile accident. Airport Shuttle Parking was insured by the Insurance Fund for workers' compensation purposes. On behalf of Karen Bliss, the Fund paid $10,131.45 in funeral and medical benefits to Mr. and Mrs. Bliss and $18,700 into the Second Injury Fund as required by section 35-l-68(2)(a) of the Code. That section mandates payment of a fixed amount into the Second Injury Fund whenever there is a determination made that there are no dependents of the deceased person covered by workers' compensation. The parties in this case have stipulated to the Insurance Fund's right to reimbursement of the funeral and medical expenses and to the fact that the Blisses are not dependents of their daughter. Thus, the dispute centers on the Insurance Fund's entitlement to repayment of the amount given the Second Injury Fund.\\nIn March of 1982, the Blisses filed a wrongful death claim against Sue Ellen Dart, the driver of the car that struck Karen's car, and Dart's insurance carrier, Allstate. During settlement negotiations between Allstate and the Blisses, the Insurance Fund notified the Blisses that because of the $18,720 it paid into the Second Injury Fund, it was claiming a right to be reimbursed for this amount from anything paid to the Blisses by or on behalf of Dart. To resolve the issue of whether the Insurance Fund had any such right, Allstate filed a declaratory action against the Blisses and the Insurance Fund. Allstate contended that because the Blisses were not dependent on their daughter and could not possibly receive workers' compensation benefits, the Insurance Fund could make no claim for reimbursement against the wrongful death recovery. In answering the declaratory complaint, the Blisses agreed with Allstate that the Insurance Fund should have no such rights. The Insurance Fund responded that it had such rights because section 35-1-62 of the Code gives the Insurance Fund the right to be reimbursed from any wrongful death recovery when the Insurance Fund is \\\"liable for compensation payments\\\" and payments to the Sec ond Injury Fund are \\\"compensation,\\\" as this Court has defined the term in Star v. Industrial Commission, 615 P.2d 436, 438 (Utah 1980).\\nThe trial court granted summary judgment for Allstate, stating in its memorandum opinion that \\\"the Fund has no claim to the payment of this $18,720 from any recovery the Blisses may receive as a result of the wrongful death action.\\\" The court's order contained wording somewhat different than the memorandum opinion and concluded that the Insurance Fund \\\"has no right to reimbursement in the form of a lien, subrogation, or any other claim, for the $18,720....\\\" (Emphasis added.)\\nThe Insurance Fund appealed. However, various factors have combined to leave the appeal in a confused state. While the appeal was pending, Allstate and the Blisses settled the wrongful death action. Allstate then did not file a brief with this Court. Its interests were purportedly rep? resented by the Blisses, who claimed that because of the settlement, they were now the real partios in interest inasmuch as they were defending the settlement from the Insurance Fund's claims. However, counsel for the Insurance Fund conceded at oral argument that the Fund makes no claim against the Blisses' settlement recovery. Instead, the Insurance Fund argues that it has an independent right to claim special damages from Allstate as a result of the Insurance Fund's payment into the Second Injury Fund. Because the Blisses' posture on appeal is only to protect the settlement, and because of Allstate's nonappearance, no one before this Court has directly responded to the Insurance Fund's claim. Despite these problems, we conclude that we have been adequately informed regarding the issue and reach it, principally because the trial court's actual order, which is broader than its memorandum opinion, plainly denies the Insurance Fund a \\\"right to reimbursement or any other claim for the $18,720....\\\" (Emphasis added.)\\nOn the merits, the Insurance Fund argues that the term \\\"compensation,\\\" as used in section 35-1-62, was defined in Star v. Industrial Commission, 615 P.2d at 438, to include payments made to the state treasurer as the custodian of the Second Injury Fund. The Insurance Fund asserts that the payments it made pursuant to section 35-1-68 are compensation. Therefore, section 35-1-62 makes the Insurance Fund, as an insurer \\\"obligated to pay compensation,\\\" the trustee of the Blisses' wrongful death action against the third-party tort-feasor and her insurer, Allstate. The Insurance Fund concludes by arguing that since section 35-1-62 also gives priority in disbursement of any recovery to the \\\"person liable for compensation payments\\\" and defines that priority as a right to \\\"be reimbursed in full for all payments made,\\\" this section, in effect, creates a cause of action in the Insurance Fund for the amount of such payments as special damages, and the Fund may recover those damages directly from the tort-feasor or her insurer.\\nWe do not agree. First, Star v. Industrial Commission did not construe the term \\\"compensation\\\" as it is used in section 35-1-62; rather, that case dealt with the entirely different question of what the term meant as found in section 35-1-68. While the use of a term in one section may have relevance to its usage in another, the plain language of each section must first be considered. When that is done, the Insurance Fund's construction of section 35-1-62 plainly cannot prevail. Under section 35-1-62, \\\"the injured employee, or in the case of death, his dependents, may claim compensation\\\"; the Insurance Fund becomes trustee of a wrongful death action only \\\"if compensation is claimed.\\\" Given the explicit limitation of the term \\\"compensation\\\" in section 35-1-62 to amounts claimed by the employee or the dependents, the statutorily required payment by the Insurance Fund into the Second Injury Fund cannot be categorized as compensation. Clearly, the purpose of the right of reimbursement established by this section is only to prevent double recovery by the employee or his or her dependents. See Oliveras v. Caribou-Four Corners Inc., 598 P.2d at 1323-25.\\nIn the present case, no compensation was or could be claimed by the Blisses or anyone else. Therefore, section 35-1-62 was not triggered, and the Insurance Fund can claim no rights under that section's priority of disbursement provisions. Since we conclude that the Insurance Fund has no claim for reimbursement of the payment into the Second Injury Fund, the summary judgment granted by the trial court is affirmed.\\nHALL, C.J., and HOWE, STEWART and DURHAM, JJ., concur.\\n. The relevant portion of section 35-l-68(2)(a), in effect at the time, stated:\\nIf the commission has made a determination that there are no dependents of the deceased, it may, prior to a lapse of one year from the date of death of a deceased employee, issue a temporary order for the employer or insurance carrier to pay into the second injury fund the sum of $18,720....\\n1979 Utah Laws ch. 138, \\u00a7 3, at 777.\\n. The Second Injury Fund is used to compensate other workers for various previously existing injuries. See generally Second Injury Fund v. Streator Chevrolet, 709 P.2d 1176 (Utah 1985).\\n. Section 35-1-62 states:\\nWhen any injury or death for which compensation is payable under this title shall have been caused by the wrongful act or neglect of a person other than an employer, officer, agent, or employee of said employer, the injured employee, or in case of death his dependents, may claim compensation and the injured employee or his heirs or personal representative may also have an action for damages against such third person. If compensation is claimed and the employer or insurance carrier becomes obligated to pay compensation, the employer or insurance carrier shall become trustee of the cause of action against the third party and may bring and maintain the action either in its own name or in the name of the injured employee, or his heirs or the personal representative of the deceased, provided the employer or carrier may not settle and release the cause of action without the consent of the commission....\\nIf any recovery is obtained against such third person it shall be disbursed as follows:\\n(1) The reasonable expense of the action, including attorneys' fees, shall be paid and charged proportionately against the parties as their interests may appear. Any such fee chargeable to the employer or carrier is to be a credit upon any fee payable by the injured employee or, in the case of death, by the dependents, for any recovery had against the third party.\\n(2) The person liable for compensation payments shall be reimbursed in full for all payments made less the proportionate share of costs and attorneys' fees provided for in subsection (I).\\n(3) The balance shall be paid to the injured employee or his heirs in case of death, to be applied to reduce or satisfy in full any obligation thereafter accruing against the person liable for compensation.\\nU.C.A., 1953, \\u00a7 35-1-62 (Repl.Vol. 4B, 1974, Supp.1986) (emphasis added).\\n. We agree with the Insurance Fund's concession: the wrongful death recovery of an heir who does not receive workers' compensation benefits cannot be reached by the Insurance Fund. See Oliveras v. Caribou-Four Corners Inc., 598 P.2d 1320, 1324-25 (Utah 1979).\\n. A fortiori, we reject the Insurance Fund's assertion that section 35-1-62 gives the Insurance Fund a separate claim for special damages that can be asserted against a tort-feasor, even though that claim could not be asserted against the nondependent heirs of a decedent.\"}"

utah/10428005.json

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+"{\"id\": \"10428005\", \"name\": \"HAGEN TRUCK LINES, Plaintiff and Respondent, v. SHERIFF OF WEBER COUNTY and Weber County Commission, Defendants and Appellants\", \"name_abbreviation\": \"Hagen Truck Lines v. Sheriff of Weber County\", \"decision_date\": \"1983-08-29\", \"docket_number\": \"No. 18301\", \"first_page\": \"871\", \"last_page\": \"873\", \"citations\": \"669 P.2d 871\", \"volume\": \"669\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:46:12.260610+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HAGEN TRUCK LINES, Plaintiff and Respondent, v. SHERIFF OF WEBER COUNTY and Weber County Commission, Defendants and Appellants.\", \"head_matter\": \"HAGEN TRUCK LINES, Plaintiff and Respondent, v. SHERIFF OF WEBER COUNTY and Weber County Commission, Defendants and Appellants.\\nNo. 18301.\\nSupreme Court of Utah.\\nAug. 29, 1983.\\nScott Daniels, Salt Lake City, for defendants and appellants.\\nTodd S. Winegar, Salt Lake City, for plaintiff and respondent.\", \"word_count\": \"626\", \"char_count\": \"3640\", \"text\": \"PER CURIAM:\\nThis is an appeal from a jury verdict which awarded damages for the negligent destruction of property.\\nIn the early morning hours of December 11, 1977, one of plaintiff's rigs was passing through Weber County, carrying a load of prime cuts of meat valued at approximately $60,000. For an unknown reason, the rig crashed through the guardrail on an overpass and landed on the- roadway below. One of the occupants of the rig was injured as he was thrown clear of the accident; the driver was killed when the rig caught fire.\\nWeber County officials arrived on the scene. After several hours, the fire was extinguished and the officer in charge directed that the cargo be disposed of at the county landfill. The officer believed that the meat could not be salvaged because of the diesel spill, the intense heat from the fire, and the water which had been used to extinguish the fire.\\nPlaintiff was contacted and immediately dispatched a representative to the scene. Plaintiff's representative, one Hicks, went first to the accident site and then to the landfill. He noticed that the meat had been dumped on top of some dead animals but otherwise appeared to be in fairly good condition. The next morning, Hicks returned to the landfill and made a more thorough inspection. He testified at trial that he looked at 150 to 200 pieces of meat to get an idea as to its condition. Testimony was that the meat had been vacuum packed in three-ply plastic containers and then placed in cardboard boxes. Under the supervision of the Department of Agriculture, the damaged meat would typically be unpacked, trimmed, tested and repackaged. Some of that deemed not fit for human consumption would be used in pet food or fertilizer. Once dumped on top of the dead animals at the landfill, however, none of the meat was salvageable.\\nWhen Hicks was asked how much of the meat was salvageable, counsel for defendants objected. The court ruled that Hicks could answer the question but only as to that he had inspected and not the entire load. Hicks said that of the meat he inspected, 40% was salvageable for human consumption but for the contamination at the landfill.\\nThe jury returned a general verdict finding defendants liable for damages in the amount of $19,377. On appeal, defendants seek to have the case remanded on the issue of damages. Defendants' theory is that there was no evidence that the 150 to 200 pieces of meat inspected by Hicks were representative of the rest of the load and hence, that the evidence is insufficient to support the jury verdict.\\nA jury verdict will be sustained where the findings are supported by direct evidence and inferences to be drawn therefrom. In order to award damages for the entire load, the jury therefore needed only to be convinced that the meat inspected by Hicks was a fair sampling of the load. Hicks testified that he took his samples from a \\\"cross-section\\\" of the load and that he \\\"dug through\\\" the meat from \\\"one end of it to the other.\\\" Such evidence provided sufficient basis for the jury to award damages for the entire load.\\nAffirmed.\\n. This was apparently 40% of the original value of the meat less the costs of recovery.\\n. Corporation of the President v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (1970); Morris v. Farmers Home Mutual Insurance Co., 28 Utah 2d 206, 500 P.2d 505 (1972).\"}"

utah/10435672.json

@@ -0,0 +1 @@
+"{\"id\": \"10435672\", \"name\": \"Michael J. COOPER, Plaintiff and Respondent, v. Walter DeLAND, Richard Vigor, et al., Defendants and Appellants\", \"name_abbreviation\": \"Cooper v. DeLand\", \"decision_date\": \"1982-07-26\", \"docket_number\": \"No. 18101\", \"first_page\": \"907\", \"last_page\": \"909\", \"citations\": \"652 P.2d 907\", \"volume\": \"652\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:59:17.791527+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michael J. COOPER, Plaintiff and Respondent, v. Walter DeLAND, Richard Vigor, et al., Defendants and Appellants.\", \"head_matter\": \"Michael J. COOPER, Plaintiff and Respondent, v. Walter DeLAND, Richard Vigor, et al., Defendants and Appellants.\\nNo. 18101.\\nSupreme Court of Utah.\\nJuly 26, 1982.\\nDavid S. Dolowitz of Parsons, Behle & Latimer, Salt Lake City, for defendants and appellants.\\nPhil L. Hansen of Hansen & Hansen, Salt Lake City, for plaintiff and respondent.\", \"word_count\": \"702\", \"char_count\": \"4330\", \"text\": \"PER CURIAM:\\nThis case involves a custody dispute between a minor child's natural father and stepfather.\\nPlaintiff-respondent, Michael J. Cooper, is the natural father of a minor child, born July 22, 1973, as the issue of his marriage with Lisa DeLand. The marriage terminated in divorce in 1975, and Lisa DeLand was granted custody of the minor child. Lisa DeLand married the defendant-appellant, Richard Vigor, on July 24, 1980. Lisa De-Land Vigor died on October 13, 1980. The respondent initiated this action against the minor's maternal grandparents, maternal uncles and aunts, and appellant, seeking custody of his son. The defendants filed a counterclaim, seeking to have the appellant appointed as the guardian of the minor.\\nThe trial court determined that neither the appellant nor the respondent was unfit to have custody of the minor child. However, the court ruled that the appellant had failed to show, by clear and convincing evidence, that it was not in the best interests of the minor to be placed in the custody of his natural father. Thus, the trial court granted custody to the minor's natural father, with an order that the minor's maternal grandparents be granted reasonable visitation privileges. On appeal, the appellant alleges that the trial court erred when it required the defendants to meet the \\\"clear and convincing evidence\\\" standard set out in In re Castillo, Utah, 632 P.2d 855 (1981).\\nThis Court stated in Castillo that a party seeking to deprive the natural parent of his parental rights must prove by \\\"clear and convincing evidence\\\" that it is not in the best interests of the child to reside with his natural parent. Id. at 857. Appellant claims that since the present case involves a custody dispute rather than a permanent termination of parental rights, the Castillo standard does not apply here.\\nAfter this appeal was filed, this Court refined the standard adopted in Castillo in regard to cases involving permanent termination of all parental rights. In In re J.P., Utah, 648 P.2d 1364 (1982), we stated that before a natural parent can be permanently deprived of all parental rights, it must be shown by clear and convincing evidence that the parent is unfit, abandoning, or substantially neglectful. However, In re J.P. was carefully limited to cases involving permanent termination of parental rights, and does not extend to cases involving custody disputes.\\nIn another recent case, Hutchison v. Hutchison, Utah, 649 P.2d 38 (1982), this Court set out the standard to be applied in custody disputes. In Hutchison, we reaffirmed the position that a child's best interests are of paramount importance in a custody dispute, and that those interests are presumed to be most adequately served by granting custody to the natural parent. However, as stated in Hutchison, the parental presumption is not conclusive.\\nA party seeking to deprive a natural parent of custody of a minor child can rebut the parental presumption only by evidence establishing that: \\\"no strong mutual bond exists, that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.\\\" Only after the parental presumption has been rebutted, will the parties compete on equal footing, and custody shall then be granted to the party who will most adequately protect and promote the best interests of the child. For the factors that may be considered in determining the child's best interests, see Hut-chison.\\nThe standard applied by the trial court in the instant case is not in conformity with that adopted in Hutchison. The case is therefore remanded to the trial court with instructions to enter findings consistent with the holding in Hutchison. Pending further disposition of this matter in the trial court, custody of the minor child shall remain with his natural father, the respondent herein.\\nNo costs awarded.\"}"

utah/10436125.json

@@ -0,0 +1 @@
+"{\"id\": \"10436125\", \"name\": \"Edward R. SALZETTI and Paula Salzetti, Plaintiffs and Respondents, v. Thomas K. BACKMAN and Nickole Backman, Defendants and Appellants\", \"name_abbreviation\": \"Salzetti v. Backman\", \"decision_date\": \"1981-11-18\", \"docket_number\": \"No. 17671\", \"first_page\": \"543\", \"last_page\": \"544\", \"citations\": \"638 P.2d 543\", \"volume\": \"638\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:52:46.863984+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward R. SALZETTI and Paula Salzetti, Plaintiffs and Respondents, v. Thomas K. BACKMAN and Nickole Backman, Defendants and Appellants.\", \"head_matter\": \"Edward R. SALZETTI and Paula Salzetti, Plaintiffs and Respondents, v. Thomas K. BACKMAN and Nickole Backman, Defendants and Appellants.\\nNo. 17671.\\nSupreme Court of Utah.\\nNov. 18, 1981.\\nBrent D. Ward, Salt Lake City, for defendants and appellants.\\nBoyd L. Jentzsch, Salt Lake City, for plaintiffs and respondents.\", \"word_count\": \"423\", \"char_count\": \"2556\", \"text\": \"PER CURIAM:\\nThis is an appeal from an order finding the defendants in contempt for failure to deposit rentals in a case involving a lease which wound up in a receivership. The defendants, by affidavit, pleaded inability to make the deposit because their assets were frozen, and the trial court refused to lift the contempt order for any period, temporary or permanent.\\nDefendants on appeal urge three points to support their request that this Court order the vacation of the contempt finding and decision:\\n1. That the order finding defendants in contempt is a \\\"final\\\" appealable order. No one on appeal has urged otherwise. Defendants raise the issue apparently in anticipation that, being an \\\"order,\\\" the question of whether it was appealable might be raised. Such concern is dispelled by Peterson v. Peterson. The order is appealable.\\n2. That the evidence did not support the order of contempt. The proof standard in a case such as this was set forth in Thomas v. Thomas as follows:\\n[I]n order to justify a finding of contempt and the imposition of a jail sentence, it must appear by clear and convincing proof that: (1), the party knew what was required of him; (2), that he had the ability to comply; and (3), that he wilfully and knowingly failed and refused to do so. [Citations omitted]\\nThese three elements are factual questions which arguably could have been decided either way in the instant case, particularly the \\\"ability to comply.\\\" Unless the evidence was clear and convincing that defendants had the ability to comply, reversal would be justified. We need not reach that question, however, because of the dis-positive nature of defendants' third point on appeal.\\n3.That the court did not memorialize its judgment by entering written findings of fact and conclusions, which was fatal to the enforceability of the contempt order. We agree. Based on the authority of Adams v. Adams, we reverse the contempt order of March 2, 1981, and order its dismissal without prejudice.\\nReversed and remanded. Costs on appeal to defendants.\\n. Under U.C.A., 1953, 78-2-2.\\n. Utah, 530 P.2d 821 (1974), and cases cited therein.\\n. Utah, 569 P.2d 1119 (1977).\\n. Bradshaw v. Kershaw, Utah, 627 P.2d 528 (1981).\\n. 30 Utah 2d 121, 514 P.2d 536 (1973).\"}"

utah/10447587.json

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+"{\"id\": \"10447587\", \"name\": \"STUCKI-MILLER, INC., Plaintiff and Appellant, v. SANTA FE ENGINEERS, INC., Defendant and Respondent\", \"name_abbreviation\": \"Stucki-Miller, Inc. v. Santa Fe Engineers, Inc.\", \"decision_date\": \"1979-03-16\", \"docket_number\": \"No. 15601\", \"first_page\": \"133\", \"last_page\": \"137\", \"citations\": \"593 P.2d 133\", \"volume\": \"593\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:30:44.739366+00:00\", \"provenance\": \"CAP\", \"judges\": \"WILKINS, HALL, and STEWART, JJ., concur.\", \"parties\": \"STUCKI-MILLER, INC., Plaintiff and Appellant, v. SANTA FE ENGINEERS, INC., Defendant and Respondent.\", \"head_matter\": \"STUCKI-MILLER, INC., Plaintiff and Appellant, v. SANTA FE ENGINEERS, INC., Defendant and Respondent.\\nNo. 15601.\\nSupreme Court of Utah.\\nMarch 16, 1979.\\nEarl S. Spafford of Spafford & Nixon, Salt Lake City, for plaintiff and appellant.\\nRoy G. Haslam, Salt Lake City, for defendant and respondent.\", \"word_count\": \"1491\", \"char_count\": \"9616\", \"text\": \"MAUGHAN, Justice:\\nPlaintiff, a roofing subcontractor, initiated this action to recover from defendant, general contractor, payment for work and materials claimed by plaintiff to constitute extra work not included under the subcontract. The disputed work involved the construction of roof drainage crickets. Defendant successfully urged before the trial court the installation of crickets was specified in the plans, and the subcontract required plaintiff to construct them. Plaintiff appeals from', the adverse ruling. The judgment of the trial court is affirmed. No costs awarded.\\nThe United States Army accepted defendant's bid to construct a reserve facility in Ogden, Utah; the contract price was $1,501,141. Plaintiff's bid for the roofing was incorporated in defendant's bid for the project. Subsequently, plaintiff and defendant entered into a subcontract agreement, whereby plaintiff agreed to perform fully and completely in accordance with the terms of the general contract, the following:\\nAll bituminous dampproofing, thermal insulation for built-up roofing, and built up roofing in accordance with General Provisions and Special Provisions as applicable to roofing, Division 1 \\u2014 General Requirements as applicable to roofing, Section 7A \\u2014 Bituminous Dampproofing, Section 7B \\u2014 Thermal Insulation for Built-up Roofing, and Section 7C \\u2014 Built-Up Roofing for Application Directly on Decks and on Insulation.\\nThe subcontract further recited:\\nThis Subcontract specifically excludes (1) Preparation of surfaces to be waterproofed, roofed, or dampproofed, (2) Sheet metal work, (3) Caulking and sealing, (4) Wood nailers Paragraph 8 of Section 7B, (5) Wood vents for parapet walls, Paragraph 9 of Section 7B.\\nThe subcontract incorporated as part of the agreement the original proposal and its terms and conditions submitted by plaintiff on Builders Bid Service Form. The subcontract incorporated by reference the plans and specifications of the general contract. The subcontract price was $66,181, which defendant paid to plaintiff. In this action, plaintiff sought to recover an additional $3,229.\\nThe trial court found that plaintiff, prior to the execution of the contract, had an opportunity to examine fully the plans and specifications designating the materials to be used in constructing the roof and the manner and method by which the work was to be completed. After execution of the subcontract plaintiff complained to defendant that roof drainage was not a job requirement under the contract; and if such were to be furnished by plaintiff, extra compensation should be paid. After an exchange of correspondence defendant notified plaintiff to proceed with the installation of the roof according to the contract, including installation of drainage materials, or the contract would be deemed terminated. Plaintiff proceeded with the construction and completed the roof in accordance with the plans and specifications. Plaintiff constructed the drainage crickets from fiberboard roof insulation material, expending therefor the sum of $3,229.\\nThe trial court found two of the drawings, A5 and A14, included in the plans incorporated into the contract, contained plain views of the roof structure. On those plain views, lines were drawn between the roof drains, indicating drainage requirements. On drawing A14, there was a notation pertaining to one of these lines: \\\"Crickett (type).\\\" The detailed drawings upon A5 and A14 indicated the type of materials to be used by plaintiff in constructing the roof. Drawings A5, A6, and A14 designate the cants and slopes to the roof drains were to be constructed from insulation material. No other material was designated in the plans and specifications. The trial court further found that the fiberboard material from which plaintiff constructed the drainage crickets might be used as insulation material in constructing the roof in accordance with the plans and specifications.\\nBased on the foregoing, the trial court concluded as a matter of law the installation of drainage materials to construct the roof in conformity with the plans and specifications was clearly a job requirement included in the subcontract. Thus, plaintiff was not entitled to extra compensation.\\nOn appeal, plaintiff contends the evidence was insufficient to support the findings and conclusions of the trial court. In assessing plaintiff's contentions, this Court surveys the whole of the evidence, and any inferences drawn therefrom, in the light most favorable to sustaining the decision of the trial court.\\nAs a matter of clarification, it should be observed that a cricket is more of a concept or design that an object, for it is the design of the slope of a roof so water will drain in a particular direction. Plaintiff's claim, in essence, is there was not included in the plans, a specific drawing of a cross-section of a cricket, indicating precisely the material of which it was to be constructed. The plans do indicate that plaintiff was to install insulation on top of either a flat steel or concrete roof, and above the insulation plaintiff was to construct a built up roof. The plans further indicate the drainage crickets were to be constructed on the roof. Furthermore, the plans indicate another drainage structure, the cants, were to be constructed of the insulation material. Although plaintiff presented evidence indicating crickets may be built of wood, steel, or concrete as well as insulation material, the plans do not indicate these suggested materials. Only insulating materials are indicated in the plans above the steel or concrete roof, and below the built up roofing. A witness for the defense, who had had considerable experience reading plans, testified he would interpret the plans as requiring the roofer to build the crickets of insulation material. All of the foregoing evidence sustains the findings of the trial court.\\nPlaintiff further contends a provision (a condition) in its bid, which was incorporated into the subcontract specifically excluded plaintiff's responsibility for the drainage. Plaintiff cites this provision to support two points. First, this condition rendered it unnecessary to include under the express exclusions in the subcontract the drainage crickets. Second, plaintiff contends the findings of the trial court were inconsistent, since the trial court found both the original bid was part of the subcontract, and installation of drainage materials was the responsibility of plaintiff under the subcontract.\\nThe condition in the bid stated:\\n24 Roof Drain Locations. Subcontractor shall not be responsible for roof drainage, and will install extra crickets, cants, etc. necessary to change drain elevations only on written change orders and at additional cost.\\nThis condition cannot be construed as urged by plaintiff. The condition has reference to the location of the roof drains and relieves the roofer of responsibility if there be improper drainage by adhering to the plans and specifications. One may further properly infer it is the responsibility of the roofer to install the cants and crickets, and, if extras be required to change the drain elevations, a written change order is required.\\nFinally, plaintiff contends the trial court erred by refusing to permit plaintiff to introduce into evidence building plans, other than the ones involved in the contract, to show the custom in the building trade, of indicating crickets, and the method of construction. Plaintiff argues the trial court deprived plaintiff of the opportunity to show, by comparison with typical building plans, the plans involved here were, at least, deficient in detail. Thus, plaintiff could not have been expected to draw from the plans the responsibility for the omitted detail.\\nThe trial court properly excluded this evidence which was not relevant to prove the material fact in issue. Under Rule 1(2), U.R.E., \\\"relevant evidence\\\" is defined as \\\"evidence having any tendency in reason to prove or disprove the existence of any material fact.\\\" The material issue in this case was whether under the terms of the contract, construing all the documents which constituted the agreement between the parties, it was plaintiff's responsibility to install the materials which would provide drainage in accordance with the plans. Plaintiff's proffer of evidence was for the purpose of excusing its performance on the ground of unilateral mistake and not to resolve the specific duties undertaken by the terms of the agreement.\\nWILKINS, HALL, and STEWART, JJ., concur.\\nCROCKETT, C. J., concurring with comment by separate opinion.\\n. Oberhansly v. Earle, Utah, 572 P.2d 1384(1977); Hanover Limited v. Fields, Utah, 568 P.2d 751 (1977).\"}"

utah/10448208.json

@@ -0,0 +1 @@
+"{\"id\": \"10448208\", \"name\": \"MOTIVATED MANAGEMENT INTERNATIONAL, a Utah Corporation, Plaintiff and Appellant, v. Robert L. FINNEY and Isabelle Finney, his wife, Defendant and Respondent\", \"name_abbreviation\": \"Motivated Management International v. Finney\", \"decision_date\": \"1979-11-19\", \"docket_number\": \"No. 16131\", \"first_page\": \"467\", \"last_page\": \"468\", \"citations\": \"604 P.2d 467\", \"volume\": \"604\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:32:39.271715+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, C. J., and MAUGHAN, WILKINS and HALL, JJ., concur.\", \"parties\": \"MOTIVATED MANAGEMENT INTERNATIONAL, a Utah Corporation, Plaintiff and Appellant, v. Robert L. FINNEY and Isabelle Finney, his wife, Defendant and Respondent.\", \"head_matter\": \"MOTIVATED MANAGEMENT INTERNATIONAL, a Utah Corporation, Plaintiff and Appellant, v. Robert L. FINNEY and Isabelle Finney, his wife, Defendant and Respondent.\\nNo. 16131.\\nSupreme Court of Utah.\\nNov. 19, 1979.\\nDavid Lloyd of Watkins & Faber, Salt Lake City, for plaintiff and appellant.\\nJackson B. Howard of Howard, Lewis & Petersen, Provo, for defendant and respondent.\", \"word_count\": \"711\", \"char_count\": \"4411\", \"text\": \"STEWART, Justice:\\nThe principal issue in this case is whether the complaint was properly dismissed for failure to state a claim because plaintiff performed the work of a contractor without being licensed as a contractor. We reverse and remand.\\nOn September 19, 1977, the plaintiff filed an action to foreclose a materialmen's lien. Plaintiff had sold defendants material for a \\\"package home,\\\" which contains all the parts necessary to complete a house. Plaintiff also agreed to perform certain aspects of the actual construction. On October 5, 1977, a motion to dismiss for failure to state a claim was filed, and on October 27, 1977, the plaintiff lodged a motion for leave to amend and an amended complaint with the court. The trial court did not formally act on the motion to amend. The heart of the controversy is whether this action was properly dismissed because the plaintiff performed the duties of a contractor as defined by \\u00a7 58-23-3(3), U.C.A. (1953), as amended, and therefore was barred from recovery because it is not a licensed contractor. See Olsen v. Reese, 114 Utah 411, 200 P.2d 733 (1948). The Finneys also contend that plaintiff is entitled to no relief, in any event, because the complaint sought only to foreclose an alleged materialmen's lien which defendants claim is defective and did not seek a judgment of personal liability against defendants.\\nAt the hearing on the motion to dismiss, and at oral argument before this Court, counsel for defendants indicated that it would be appropriate to consider this matter on the basis of the amended complaint, despite the absence of a formal order permitting the complaint to be filed. On that basis, we take the trial court's dismissal to apply to the amended complaint as if an order had been entered substituting it for the original complaint.\\nThe amended complaint alleges that at least part of the construction was performed by a licensed contractor, Eco Development and Construction Co., or through subcontractors obtained by defendants and that substantial change orders were made by defendants to the licensed contractor and plaintiff or to defendants' own materi-almen or subcontractors. The complaint also alleges that, \\\"Pursuant to agreements with defendants, plaintiff supplied materi-' ais, and paid for labor performed by Eco Development or subcontractors obtained by Eco Development or defendants . . . .\\\" On the face of the complaint it appears that defendants, by virtue of Eco's contractual involvement, would have the protection which presumably would be afforded by a licensed contractor. On that basis we hold that Fillmore Products, Inc. v. Western States Paving, Inc., Utah, 561 P.2d 687 (1977), controls this case. Since the allegations of the complaint do not compel the conclusion that no claim for relief has been stated, it was not appropriate to dismiss the complaint. Liquor Control Commission v. Athas, 121 Utah 457, 243 P.2d 441 (1952); see also, Christensen v. Lelis Automatic Transmission Service, Inc., 24 Utah 2d 165, 467 P.2d 605 (1970).\\nFinally, the defendants claim that the action was to foreclose a lien and that the alleged lien was invalid. They further contend that the complaint did not demand judgment against the defendants for personal liability on the contract, and therefore the plaintiff has no basis for' maintaining this action. Plaintiff now concedes there was no valid lien because of failure to comply with the statutory requirements. But the amended complaint clearly does seek a judgment for money damages against the defendants. In any event, Rule 54(c)(1) provides that a judgment shall grant the relief to which a party is entitled, even though it has not been demanded in the pleadings. Clearly the complaint was not defective because of the nature of the relief sought.\\nCosts to Appellant.\\nCROCKETT, C. J., and MAUGHAN, WILKINS and HALL, JJ., concur.\\n. Plaintiff has not contended that Olsen v. Reese, 114 Utah 411, 200 P.2d 733 (1948), should be overruled. That issue should therefore be left for another day.\"}"

utah/10454891.json

@@ -0,0 +1 @@
+"{\"id\": \"10454891\", \"name\": \"Lynn A. JENKINS, Wayne A. Jensen, Raymond J. Height, Rodney D. Bullock, F. Merrill Warnick, Plaintiffs, v. Robert BISHOP et al., David S. Monson, Lt. Governor and Secretary of State, et al., K. B. Olsen, Box Elder County Clerk, et al., Defendants\", \"name_abbreviation\": \"Jenkins v. Bishop\", \"decision_date\": \"1978-12-29\", \"docket_number\": \"No. 16070\", \"first_page\": \"770\", \"last_page\": \"777\", \"citations\": \"589 P.2d 770\", \"volume\": \"589\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:14:04.484372+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lynn A. JENKINS, Wayne A. Jensen, Raymond J. Height, Rodney D. Bullock, F. Merrill Warnick, Plaintiffs, v. Robert BISHOP et al., David S. Monson, Lt. Governor and Secretary of State, et al., K. B. Olsen, Box Elder County Clerk, et al., Defendants.\", \"head_matter\": \"Lynn A. JENKINS, Wayne A. Jensen, Raymond J. Height, Rodney D. Bullock, F. Merrill Warnick, Plaintiffs, v. Robert BISHOP et al., David S. Monson, Lt. Governor and Secretary of State, et al., K. B. Olsen, Box Elder County Clerk, et al., Defendants.\\nNo. 16070.\\nSupreme Court of Utah.\\nDec. 29, 1978.\\nJames B. Lee and James M. Elegante, of Parsons, Behle & Latimer, Salt Lake City, for plaintiffs.\\nRobert B. Hansen, Atty. Gen., Michael L. Deamer, Asst. Atty. Gen., Melvin E. Leslie, Legislative Gen. Counsel, Salt Lake City, for defendants.\", \"word_count\": \"4127\", \"char_count\": \"24919\", \"text\": \"PER CURIAM:\\nThe majority of the court agree:\\nThat the defendants (as school administrators and teachers) were not disqualified to become candidates, nor from being elected as members of the Legislature.\\nThat similarly, they are not disqualified from being sworn in as members of the Legislature.\\nThe question is not presented in this proceeding, and the court does not decide, what status the defendants must occupy in relation to their respective school districts during the time they serve in the Legislature (or during the term for which they were elected).\"}"

utah/10456363.json

@@ -0,0 +1 @@
+"{\"id\": \"10456363\", \"name\": \"WILLARD M. MILNE INVESTMENT COMPANY, Plaintiff and Respondent, v. Paul COX, Defendant and Appellant, v. Andrew O. McARTHUR et al., Third-Party Defendants and Respondents\", \"name_abbreviation\": \"Willard M. Milne Investment Co. v. Cox\", \"decision_date\": \"1978-05-31\", \"docket_number\": \"No. 15190\", \"first_page\": \"607\", \"last_page\": \"610\", \"citations\": \"580 P.2d 607\", \"volume\": \"580\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:16:23.775817+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, MAUGHAN and HALL, JJ., concur.\", \"parties\": \"WILLARD M. MILNE INVESTMENT COMPANY, Plaintiff and Respondent, v. Paul COX, Defendant and Appellant, v. Andrew O. McARTHUR et al., Third-Party Defendants and Respondents.\", \"head_matter\": \"WILLARD M. MILNE INVESTMENT COMPANY, Plaintiff and Respondent, v. Paul COX, Defendant and Appellant, v. Andrew O. McARTHUR et al., Third-Party Defendants and Respondents.\\nNo. 15190.\\nSupreme Court of Utah.\\nMay 31, 1978.\\nJim R. Scarth, St. George, for defendant and appellant.\\nRalph V. Benson, Cedar City, V. Pershing Nelson, Provo, for plaintiff and respondent.\", \"word_count\": \"1376\", \"char_count\": \"8340\", \"text\": \"WILKINS, Justice:\\nDefendant Cox appeals from judgment entered in the District Court for Washington County upon a directed verdict in favor of plaintiff and third-party defendants, and against defendant.\\nCox owned two parcels of land; one containing approximately six acres, located in St. George, and another smaller tract in Cedar City, Utah. The Cedar City property had been sold at foreclosure sale, and the six month redemption period thereon was due to expire at midnight on December 12, 1970. On that date defendant called upon Third-Party Defendant McArthur, seeking to borrow money to redeem this property. McArthur lacked sufficient funds himself, so he called Willard Milne to join him in the transaction. As a result of these negotiations, an agreement was entered into between Cox and McArthur whereby McAr-thur agreed to purchase the Cedar City property, together with the St. George property, for $37,800, the amount needed by Cox to redeem the Cedar City property. McArthur gave Cox a check in the full amount and Cox delivered an executed warranty deed to the Cedar City property, which deed was absolute and unconditional in form. By a separate written instrument, Cox agreed to convey the St. George property at the conclusion of condemnation proceedings to which part of that property was then subject, and McArthur granted Cox an option to repurchase the two properties within eighteen months for $44,604. Subsequently, McArthur assigned all of his interest in the agreement as well as an undivided one-half interest in the Cedar City property to plaintiff.\\nCox failed to exercise his option within the eighteen month period and also failed and refused to convey the St. George property.\\nPlaintiff brought this action for specific performance of the agreement to convey the St. George property, or in the alternative, for judgment of foreclosure, on the theory that the agreement constituted a note and mortgage.\\nCox answered, denying that the agreement was an absolute sale and an option to repurchase, asserting that the agreement was a mortgage. Cox counterclaimed against plaintiff, and joined McArthur and all of the individual partners of Willard M. Milne Investment Co., (a limited partnership) as defendants in a third-party complaint, praying, inter alia, that the Court quiet title to both parcels of property in defendant and that he be \\\"afforded all rights of a mortgagor.\\\" McArthur answered and counterclaimed, maintaining that the agreement was an absolute sale and not a mortgage.\\nThe case was tried before the court, sitting with a jury, but at the close of evidence, the court directed the jury to find that the transaction was an absolute sale and not a mortgage, upon the motion of the plaintiff.\\nIn the case of Kjar v. Brimley, 27 Utah 2d 411, 497 P.2d 23 (1972), this Court reversed the summary judgment entered against the grantor of an absolute deed, on the ground that there were facts at issue precluding summary judgment and said:\\nWhether a transaction in the form of a sale with an option to repurchase is in fact a sale, or a loan disguised as a sale to cover up a scheme to collect usurious interest is an issue for the trier of fact. The controlling question is what was the intention of the parties as it existed at the time of the execution and delivery of the instrument? 497 P.2d at p. 25.\\nDefendant's argument on appeal is that the evidence is conflicting with regard to the parties' intent; that there was sufficient evidence to support defendant's position, and that the court erred in refusing to submit the question of the parties intent to the jury.\\nA number of circumstances relevant to determining whether the parties intended instruments in the form of a deed and an option to repurchase to be considered a mortgage are set forth in the case of Kjar v. Brimley, ante, including, (1) the adequacy or inadequacy of consideration compared to the value of the property; (2) whether the grantee or the grantor was in possession of the premises after the transaction; (3) the conduct of the parties before and after the execution of the instruments; (4) the financial condition of grantor at the time of execution of the instruments; (5) the overall relationship of the parties \\u2014 financial, business, debtor-creditor, etc., and (6) whether the grantee of the grantor paid the taxes, etc.\\nDefendant's evidence disclosed: (1) defendant received only the amount needed to redeem the Cedar City property, but agreed to convey the St. George property in addition-there'to. And he paid $500 by check to plaintiff as consideration for the option; (2) defendant remained in possession during the option period, and he was required under the agreement to continue to pay real estate taxes and insurance on the property. Moreover, rents were collected by the defendant, and were not demanded by plaintiff until after the option period expired; (3) defendant was under financial pressure at the time of the transaction and was about to lose the property in Cedar City. He explains that title was conveyed to plaintiff in an effort to avoid further encumbrances and judgments against the property due to court actions then pending against defendant; and (4) the difference between the amount advanced and the repurchase price agreed to constitutes 12% interest on the amount advanced for the eighteen month period, which is the amount of interest the defendant alleges plaintiff demanded. The written agreement contains language indicating that the repurchase price would be reduced pro rata for interest, if the option to repurchase was exercised within the eighteen month period. Defendant points out that any provision for interest indicates a security arrangement and not a sale.\\nOn the other hand, plaintiff's evidence discloses that no note was executed, and plaintiff therefore contends that there was no debtor-creditor relationship as plaintiff had no right to compel repayment. Plaintiff also argues that the intent of the parties is controlling in this case, and of the three persons present at the time the instruments were executed, two of them, Third-Party Defendant McArthur and the attorney who drew the papers, testified that the parties intended an absolute sale, while only the defendant testified otherwise.\\nIt appears that this case is essentially one in equity, as the plaintiff has prayed for specific performance, and defendant, in asking the court to give the deed and option to repurchase the effect of a mortgage is also seeking equity. The parties do not contend, however, that this case was not properly tried before a jury, and as there is no indication in the record that the Judge considered the jury as being merely advisory, we assume that the parties have consented to presenting their case to a jury whose verdict would have \\\"the same effect as if trial by jury had been a matter of right\\\", under Rule 39(c), U.R.C.P. Thus the determination of whether a directed verdict is proper must be tested by the rules governing cases at law; viz., whether reasonable minds would disagree on the evidence presented so as to provide a question of fact for the jury. As the question of the parties' intent is a question of fact, and as the evidence recited, above, is in conflict, the question should properly have been presented to the jury, and the Court erred in directing the verdict.\\nReversed and remanded for further proceedings not inconsistent with this opinion. Costs to defendant.\\nCROCKETT, MAUGHAN and HALL, JJ., concur.\\nELLETT, C. J., dissents.\\n.In Kjar, supra, this Court stated: \\\"A mortgage may exist, although the mortgagee has no right to compel payment. The law may imply a promise to repay a debt under particular circumstances of any case, where it is clear that the lender had relied on the property for his security . .' 497 P.2d at p. 25.\\n. Kjar v. Brimley, supra.\\n. Finlayson v. Brady, 121 Utah 204, 240 P.2d 491 (1952); Boskovich v. Utah Constr. Co., 123 Utah 387, 259 P.2d 885 (1953).\"}"

utah/10457936.json

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+"{\"id\": \"10457936\", \"name\": \"TRIANGLE OIL, INC., a corporation, Plaintiff and Appellant, v. NORTH SALT LAKE CORPORATION et al., Defendants and Respondents\", \"name_abbreviation\": \"Triangle Oil, Inc. v. North Salt Lake Corp.\", \"decision_date\": \"1980-03-27\", \"docket_number\": \"No. 16269\", \"first_page\": \"1338\", \"last_page\": \"1340\", \"citations\": \"609 P.2d 1338\", \"volume\": \"609\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:36:07.459450+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAUGHAN, WILKINS, HALL and STEWART, JJ., concur.\", \"parties\": \"TRIANGLE OIL, INC., a corporation, Plaintiff and Appellant, v. NORTH SALT LAKE CORPORATION et al., Defendants and Respondents.\", \"head_matter\": \"TRIANGLE OIL, INC., a corporation, Plaintiff and Appellant, v. NORTH SALT LAKE CORPORATION et al., Defendants and Respondents.\\nNo. 16269.\\nSupreme Court of Utah.\\nMarch 27, 1980.\\nGeorge K. Fadel, Bountiful, for plaintiff and appellant.\\nMichael T. McCoy, Salt Lake City, for defendants and respondents.\", \"word_count\": \"1152\", \"char_count\": \"6984\", \"text\": \"CROCKETT, Chief Justice:\\nPlaintiff, Triangle Oil, Inc., sought to mandamus the North Salt Lake city council to issue a Class A beer license to its multipurpose gas station and grocery store. From the district court's rejection of its petition, plaintiff appeals.\\nPlaintiff contends that the action of the city was in excess of any authority granted it by statute; that since beer can be purchased from other licensees in the city, the denial of plaintiff a license does not come within the police power to safeguard the health, safety and morals; and that its action is arbitrary and discriminatory.\\nIn explanation of the city council's refusal to grant plaintiff's application, the mayor sent plaintiff a letter on September 6, 1978. The pertinent part stated:\\nDue to the size of North Salt Lake and to the fact that there are now seven active beer licenses in the city, the council voted unanimously to disapprove your request. Their action in no way reflects upon you or your business. It merely reflects the council's feelings that there are now sufficient beer outlets within the city.\\nThe statute whence the city derives its authority is Sec. 32-4-17, U.C.A. 1953, which provides that:\\nCities and towns within their corporate limits . . . shall have power to license, tax, regulate or prohibit the sale of light beer, at retail, in bottles or draft. . . .\\nActing pursuant to that statute, the city has by ordinance provided for granting licenses for the sale of beer. The section of its ordinance dealing with the number of licenses to be issued states:\\nThe total number of businesses licensed to sell beer in the city of North Salt Lake shall not exceed four, provided that this ordinance shall not operate to reduce the number of businesses now licensed to sell beer whether issued by this municipality or by the county if such business is annexed nor shall it affect reapplications for such licenses.\\nPlaintiff urges that there should be strict construction of the grant of authority to the city; and that inasmuch as the statute does not expressly grant authority to restrict the number of licenses to be issued, the city is without power to do so. We agree with the proposition that cities are political subdivisions of the state created by statute and that the only powers they have must be found in the statutes which create them. However, that statement is subject to the elaboration that they have the powers expressly set forth and those necessarily implied therefrom which are essential to carrying out the duties and purposes of the city government.\\nIn this, as in most controversies, there are two sides to the coin, neither wholly irrational. On the one hand, we observe with some seriousness, that it is difficult to see how licensing one more outlet for the sale of beer in containers, not to be consumed on the premises, could have any substantial effect upon the health, morals or safety of the community. On the other hand, in Sec. 32-4-17 quoted above, the legislature has expressly given the city a broad grant of authority to \\\"regulate or prohibit\\\" the sale of beer. The axiom of logic is that the whole includes all of its parts. Therefore, if a city can regulate or prohibit the sale entirely, certainly it can impose any reasonable regulations thereon. In relation to the problem dealt with herein, it is generally recognized that because beer is a beverage containing alcohol its sale is sufficiently related to the public health, morals and safety that it is subject to regulation under the police power; and this extends to limitation on the number of retail outlets.\\nIt appears that there are presently seven such licenses in a relatively small community. If each new applicant could successfully insist that just one more would not make any substantial difference, that would effectively prevent the city from regulating the number of licenses at all, and the matter could get beyond control entirely.\\nPlaintiff makes the alternative argument that if the city limits the number of beer licenses they should be rotated among qualified applicants with no preference given those seeking renewals. In response thereto, the city counters that it is essential to the stability and continuance of existing businesses that they be given preference over new applicants. Consistent with that position, we have heretofore had occasion to say that:\\n. because beer licenses are available on a quota system it seems especially reasonable and proper that a business which has had a license and has been in operation should have some preference over any new application ; and that the operating business should have its license renewed unless there is some reasonable basis for denying it. [All emphasis herein is added.]\\nWhatever else may be said about this point, the proposal as to the adoption of a rotating system of licensing is a problem for city management.\\nWe are sensitive of the responsibility of courts to be receptive to the consideration of alleged grievances and oppressions, or the denial of rights. Nevertheless, be cause of the seriousness of judicial responsibility in having the final word in its interrelationship with other departments and institutions of government, it has been found to be wise and proper judicial policy to exercise its powers with restraint, and not to intrude into or interfere with the discretionary functions or the policies of other departments of government. Accordingly, the courts generally will not so interfere with the actions of a city council unless its action is outside of its authority or is so wholly discordant to reason and justice that its action must be deemed capricious and arbitrary and thus in violation of the complainant's rights.\\nIn harmony with those principles, it is our conclusion that the trial court properly refused to grant the petition to mandamus the defendant city council.\\nAffirmed. No costs awarded.\\nMAUGHAN, WILKINS, HALL and STEWART, JJ., concur.\\n. A license to sell beer in original containers for consumption off the premises.\\n. The city indicates that there are three holdover licenses in existence.\\n. Johnson v. Sandy City Corp., 28 Utah 2d 22, 497 P.2d 644 (1972).\\n. Salt Lake City v. Revene, 101 Utah 504, 124 P.2d 537 (1942); Ritholz v. City of Salt Lake, 3 Utah 2d 385, 284 P.2d 702 (1955).\\n. Winther v. Village of Weippe, 91 Idaho 798, 430 P.2d 689 (1967).\\n. Winther v. Village of Weippe, supra, note 5; 45 Am.Jur.2d, Intoxicating Liquors, Sec. 135.\\n. Current population is about 5,000.\\n. Anderson v. Utah County Bd. of County Commissioners, Utah, 589 P.2d 1214, 1216 (1979).\\n. Article I, Sec. 11, Utah Constitution.\\n. Mantua Town v. Carr, Utah, 584 P.2d at 912 (1978).\"}"

utah/10462910.json

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+"{\"id\": \"10462910\", \"name\": \"Jeannette U. SWAN, Plaintiff and Appellant, v. Dr. Robert H. LAMB and Dr. Dennis D. Thoen, Defendants and Respondents\", \"name_abbreviation\": \"Swan v. Lamb\", \"decision_date\": \"1978-08-16\", \"docket_number\": \"No. 14823\", \"first_page\": \"814\", \"last_page\": \"823\", \"citations\": \"584 P.2d 814\", \"volume\": \"584\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:35:25.580797+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAUGHAN, J., having disqualified himself does not participate herein.\", \"parties\": \"Jeannette U. SWAN, Plaintiff and Appellant, v. Dr. Robert H. LAMB and Dr. Dennis D. Thoen, Defendants and Respondents.\", \"head_matter\": \"Jeannette U. SWAN, Plaintiff and Appellant, v. Dr. Robert H. LAMB and Dr. Dennis D. Thoen, Defendants and Respondents.\\nNo. 14823.\\nSupreme Court of Utah.\\nAug. 16, 1978.\\nW. Eugene Hansen and Ralph L. Dewsn-up of Hansen & Orton, Salt Lake City, for plaintiff and appellant.\\nRex J. Hanson, Ray R. Christensen, Salt Lake City, for defendants and respondents.\", \"word_count\": \"5120\", \"char_count\": \"30907\", \"text\": \"ELLETT, Chief Justice:\\nThe respondents are doctors and were sued by appellant for injuries due to alleged malpractice. The jury found in favor of the doctors and the appellant has appealed, relying solely on one claim of error, viz: The refusal of the court to permit her expert medical witness to testify as to the standard of care required of the doctors who operated upon her. That witness had been permitted to testify in the courts of Utah on prior occasions. He was a neurosurgeon from Los Angeles, California, and had the following qualifications:\\n[He] received his M.D.' degree from St. Louis University School of Medicine in 1942, after which he interned at Huntington Memorial Hospital in Pasadena, California. For three years, from 1943-1946, he was a general surgeon in the U.S. Army in the European theatre. Following his military service he fulfilled his residency requirements in neurosurgery at White Memorial Hospital which was associated with the Loma Linda Medical College. In 1948-1949 he served as instructor of resident neurological surgery at Albany Medical College in New York. In that assignment, he was charged with instructing and training in the fields of neurology and neurosurgery. In 1949, the doctor returned to California and started private practice where he has continued to the present. For 25 years [he] has headed a neurological and neurosurgical clinic at the Orthopedic Hospital of Los Angeles. The Orthopedic Hospital affiliates with the University of Southern California Medical School and is involved in teaching and training resident physicians from all over the United States. [He] was also the head of the Department of Neurosurgery at the Queen of Angels Hospital in Los Angeles for 12 years and served for a time on the faculty school of nursing. During such time, said hospital had a complete training program for interns and residents as well as a medical school affiliation. [He] is a member of numerous medical societies, both national and regional, including the American Medical College, Western States Federa tion of Neurological Sciences, California Medical Association, Southern California Neurosurgical Society, and Los Angeles County Medical Association.\\nIn addition to the above mentioned credentials, the witness testified that, over the course of his professional career he personally had performed over a thousand lumbar decompression laminectomies and over a thousand myelograms of the types that were performed upon Mrs. Swan. He was asked whether he was acquainted with standards of skill and care for neurosurgeons practicing in any states outside of California. His affirmative response was followed by the following explanation:\\nFrom my education background, from the individual education background, from being a graduate of a grade A medical school, from being trained in various parts of the country at different times, from being accepted into the Army and with other men, other doctors from all over the states of the union and all on the same equal level \\u2014 in the Army, from my practice in \\u2014 well, in the large communities where you have medical schools and where you have hospitals, where you have training programs, and you have communications and you have books, you have publications, you have the competition of one area against the other. This establishes the practice throughout the whole country and it's on the same level.\\nWhen the witness was asked if he had an opinion as to whether or not there was a different standard of care for various types of doctors who operate to enter the spinal canal, objections by respondents were sustained for lack of proper foundation. Appellant offered to prove that the standard of care for all doctors entering the spinal canal area was the same. Appellant further offered to prove that myelogram and decompression laminectomy procedures of the types to which she had been subjected were routinely performed by persons in respondents' fields and, as such, were standardized in much the same way as the treatment of a broken arm.\\nAfter considering the issue of what standard of medical care to apply, the court rejected appellant's arguments for application of a similar community standard, as well as a standard of the entire medical profession; and ruled that Utah law required a doctor to exercise only that degree of skill and care required of the average competent medical practitioner in the defendant's same locality; and that in order for the witness to testify in the case, he had to demonstrate \\\"personal contact or experience within the State of Utah.\\\" The judge ruled that since the witness had not practiced his profession in Utah, he could not testify as to the standard of care required of a doctor practicing here.\\nThe respondents performed a myelogram on the appellant and, thereafter, a lumbar decompression laminectomy. The condition of the appellant worsened considerably, and she claims that it was due to improper and negligent procedures in connection with the operation. She was not permitted to have her expert testify to that effect; and, therefore, claims she should have a new trial with directions to the trial court as to the guidelines for admitting testimony of expert witnesses in connection with malpractice cases.\\nDespite the court's preclusion of his opinion concerning the standard of care, appellant's expert was deemed qualified to express an opinion with probable medical certainty as to what caused the injuries. He stated that Mrs. Swan's paraplegia was due to trauma which occurred principally at the time of surgery. As described by this witness, the irritation to the nerve roots caused by nonremoval of the pantopaque caused them to be inflamed or injured. Said injury was compounded when the nerve roots were traumatized upon surgical removal of the posterior arch, thus producing immediate paralysis.\\nAppellant's evidence of causation, stripped of the benefit of her expert's testimony as to the standard of care, was deemed insufficient to survive respondents' motion to dismiss as to the negligence count of her complaint; and the complaint as to that matter was dismissed.\\nThe experience of the expert witness was such as to make him eminently qualified to testify as to whether or not the respondents acted negligently and used improper procedures in operating on the appellant. The question of whether or not the local doctors know better and, therefore, do not have to be as good as doctors in other areas of the country has been treated by the courts of other states. Our own Court has considered the problem on several occasions.\\nIn the case of Baxter v. Snow this Court said:\\n. To recover, the plaintiff was required affirmatively to show that the defendant in the treatment did not exercise such reasonable care, skill, and diligence as ordinarily is exercised by skilled otologists in the same vicinity .\\nThe same holding was made in 1938 in the case of Edwards v. Clark, et al., where physicians in general practice were involved. In Anderson v. Nixon our Court, in addressing the requirement of a physician's competence, stated:\\nIn malpractice cases, whether a physician or surgeon is negligent depends upon whether he has used or failed to use the ordinary care and skill required of doctors in the community which he serves .\\nThere are many other Utah cases holding that the physician is held to the standard of care of physicians doing the same type of work in the vicinity.\\nIn the case of Baird v. National Health Foundation it was stated that it was negligence for physicians to fail to apprise themselves of symptoms that are present and to diagnose and correctly treat the patient on the basis of those symptoms. This statement was cited in the Utah case of Anderson v. Nixon, supra.\\nIt thus appears that in the past, this Court has stated that the doctor in treating a patient cannot be held to be negligent unless it is shown that he did not comply with the standards used and approved by other doctors in the same vicinity. Those holdings were proper at the times when they were made; however, there is no reason to hold that doctors in Salt Lake City who profess to be experts in a field of surgery or medicine should not be held to the standard of care exercised by experts in the same field in cities of comparable size and throughout the medical profession.\\nOur quality of medical care in Utah rates with the best in the nation. Our hospitals are among the finest with the most recent technology, and the medical college at the University of Utah enjoys an outstanding reputation. In addition, doctors practicing their profession here come from various medical colleges throughout the nation. Medical journals are available nationally as are seminars and workshops. There is no need for doctors here to have a lower standard of care than that of other doctors who are practicing in similar localities. Indeed, it is doubtful that any physician in the State of Utah would be willing to admit that his skill and knowledge is not equal to any other physician trained in his field, or that his ability is less than that of doctors trained and practicing in other cities.\\nTrue it may be that doctors practicing in small rural communities cannot be expected to have the facilities or the equipment to perform equally as well as can physicians in Salt Lake City; however, they have the same quality of training and should know enough to refuse to undertake operations or to treat patients if they are not in a position to successfully administer the needed treatment \\u2014 save perhaps in emergency cases.\\nIf surgeons throughout the nation consider it improper to allow foreign substances that have been injected into the spinal canal to remain there after completing a myelogram, it beggars the imagination to think a doctor in Salt Lake City could escape responsibility for harm done to his patient by failing to remove the substance merely because the local custom is to leave the substance in the canal so that it will be absorbed by the body. If this procedure is generally regarded to be unsatisfactory or dangerous, no doctor should escape responsibility merely because the local practice has not yet adopted it.\\nComplaint is made by the respondents against permitting the witness to testify as an expert because he is not certified in his field by a national board. That would merely go to the weight of his testimony but would not prevent his testifying to matters about which he was qualified to give an expert opinion.\\nWe think the trial court should have permitted the testimony and, therefore, reverse the case for a new trial on the issue of negligence. However, since the trial court correctly followed the prior holdings of this Court, no costs are allowed for this appeal. To whatever extent the prior holdings of this Court are contrary to the rulings made herein they are expressly overruled and shall have no further force or effect in this state.\\n. 78 Utah 217, 232, 2 P.2d 257, 263 (1931).\\n. 96 Utah 121, 83 P.2d 1021 (1938).\\n. 104 Utah 262, 266, 139 P.2d 216, 218 (1943).\\n. See Fredrickson v. Maw, 119 Utah 385, 227 P.2d 772 (1951); Marsh v. Pemberton, 10 Utah 2d 40, 347 P.2d 1108 (1959); Paull v. Zions First Nat'l Bank, 18 Utah 2d 183, 417 P.2d 759 (1966); Posnien v. Rogers, Utah, 533 P.2d 120 (1975) [veterinarian case].\\n.235 Mo.App. 594, 144 S.W.2d 850 (1940).\"}"

utah/10464757.json

@@ -0,0 +1 @@
+"{\"id\": \"10464757\", \"name\": \"John C. HILL, Plaintiff and Respondent, v. Jacob WALSTRA et al., Defendants and Appellants\", \"name_abbreviation\": \"Hill v. Walstra\", \"decision_date\": \"1976-04-01\", \"docket_number\": \"No. 14104\", \"first_page\": \"628\", \"last_page\": \"628\", \"citations\": \"548 P.2d 628\", \"volume\": \"548\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:08:46.626956+00:00\", \"provenance\": \"CAP\", \"judges\": \"ELLETT, CROCKETT and TUCK-ETT, JJ., concur.\", \"parties\": \"John C. HILL, Plaintiff and Respondent, v. Jacob WALSTRA et al., Defendants and Appellants.\", \"head_matter\": \"John C. HILL, Plaintiff and Respondent, v. Jacob WALSTRA et al., Defendants and Appellants.\\nNo. 14104.\\nSupreme Court of Utah.\\nApril 1, 1976.\\nGeorge H. Searle, Salt Lake City, for defendants and appellants.\\nLouis E. Midgley, Salt Lake City, for plaintiff and respondent.\", \"word_count\": \"243\", \"char_count\": \"1536\", \"text\": \"HENRIOD, Chief Justice.\\nAppeal from a judgment for plaintiff contractor, on a construction contract involving two duplexes. Affirmed with costs to plaintiff.\\nDefendants say the evidence does not support the judgment of the trial court, and apparently to prove it, at great length and in almost greater detail, present the facts and, based thereon, urge this court to indulge a sort of trial de novo scenario. Although we do not do this, but simply review the record and affirm if substantial, admissible and competent evidence supports such conclusion, or reverse if the record clearly reflects that the trial judge played the role of arbiter of the facts capriciously and irresponsibly, with utter disregard of the uncontradicted facts, we are constrained to affirm, which we do in this instance.\\nHaving examined the record, we cannot say the trial judge indulged the luxury of such indolence, \\u2014 particularly since he insisted, over plaintiff's objection, on appointing a data-and-duty-bound referee to determine salient facts, \\u2014 in a case where the matter of the contract's terms was not involved, but only that of the bona fides of a rather unorthodox group of discordant litigants.\\nELLETT, CROCKETT and TUCK-ETT, JJ., concur.\\nMAUGHAN, J., concurs in the result.\"}"

utah/10468423.json

@@ -0,0 +1 @@
+"{\"id\": \"10468423\", \"name\": \"STATE of Utah, Plaintiff and Appellant, v. Joseph MORGAN, Defendant and Respondent\", \"name_abbreviation\": \"State v. Morgan\", \"decision_date\": \"1974-10-08\", \"docket_number\": \"No. 13451\", \"first_page\": \"225\", \"last_page\": \"226\", \"citations\": \"527 P.2d 225\", \"volume\": \"527\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:28:42.330390+00:00\", \"provenance\": \"CAP\", \"judges\": \"CALLISTER, C. J., and ELLETT, CROCKETT and TUCKETT, JJ., concur.\", \"parties\": \"STATE of Utah, Plaintiff and Appellant, v. Joseph MORGAN, Defendant and Respondent.\", \"head_matter\": \"STATE of Utah, Plaintiff and Appellant, v. Joseph MORGAN, Defendant and Respondent.\\nNo. 13451.\\nSupreme Court of Utah.\\nOct. 8, 1974.\\nVernon B. Romney, Atty. Gen., William T. Evans, Earl F. Dorius, Asst. Attys. Gen., Salt Lake City, for plaintiff and appellant.\\nRobert Van Sciver, D. Gilbert Athay, Salt Lake City, for defendant and respondent.\", \"word_count\": \"635\", \"char_count\": \"3800\", \"text\": \"HENRIOD, Justice:\\nAppeal from an order of the trial court, resentencing defendant to a lesser penalty in a possession of narcotics case. Reversed.\\nMorgan was convicted and sentenced by trial Judge S for aiding and abetting in the possession by his wife, the principal, of a controlled substance for distribution. He appealed to this court. While the appeal still was pending, his wife was faced with the same offense, was tried and convicted by a jury of mere possession of such a substance, \\u2014 a lesser offense. Still during the pendency of the appeal, the defendant filed a habeas corpus proceeding in the lower court which the record reflects may not have been treated as such by trial Judge H, \\u2014 who believed that Morgan, as aider and abetter, should receive no greater penalty than his wife. Judge H transferred the matter for resentencing to Judge S. The latter, considering himself right in the first place, declined to resen-tence Morgan to a lesser sentence. Counsel for both sides, bag and baggage, brief cases, papers and all, traipsed down the hall to H's courtroom, did a bit of arguing, after which Judge H reversed his neighbor and colleague, Judge S, and resentenced Morgan to a lesser jail term, he already having served such period, and for which he was given credit, and released him outright.\\nThe record does not reflect any rumpled feelings or praise by S, but the former well may have been without empathy in the judicial breast. Nonetheless, the action of Judge H was in error here for three principal reasons:\\nI. Judge H was without jurisdiction to entertain Morgan's petition,- \\u2014 whatever it was, \\u2014 then sentence him to some other penalty, while the sentence, the subject of Morgan's appeal, still was pending in this court, \\u2014 and which, in truth this court affirmed after such abortive resentencing.\\nII. Generally, one District Judge cannot overrule another acting District Judge having identical authority and stature. We subscribe to such a salutary principle. If a person feels aggrieved by one judge's doings he may attack such conclusion in a proper, but different proceeding than that indulged here, \\u2014 usually by the extraordinary writ route.\\nIII. The writ of habeas corpus cannot be used for the purpose of procuring what in substance and effect is a second appeal, whether it is prosecuted pending the appeal or thereafter. The reason for such rule seems sufficiently obvious as to require no further treatment here.\\nThe State attempted to interject in this appeal the substantive question of whether an aider and abetter can have imposed upon him a greater penalty than the principal. That matter is not germane to this particular proceeding, being moot, since we take the position the lower court's action had no validity, having been accomplished during pendency of appeal. Hence we pass that matter without further comment.\\nCALLISTER, C. J., and ELLETT, CROCKETT and TUCKETT, JJ., concur.\\n. Title 58-37-8(1) (a) (ii), Utah Code Annotated 1953.\\n. State v. Morgan, Case No. 13218 (Sept. 1973) this court.\\n. Id.\\n. Peterson v. Ohio Copper, 71 Utah 444, 452, 266 P. 1050 (1928) ; Nat. Am. Life v. Baxter, 73 N.M. 94, 385 P.2d 956 (1963) ; Coeur D'Alene v. Cogswell, 93 Ida. 324, 461 P.2d 107 (1969) ; Malott v. Randall, 7 Wash.App. 753, 502 P.2d 1249 (1972).\\n. Atwood v. Cox, 88 Utah 437, 55 P.2d 377 (1936)-\\n. Johnson v. Turner, 24 Utah 2d 439, 473 P. 2d 901 (1970) ; Sullivan v. Turner, 22 Utah 2d 85, 448 P.2d 907 (1968).\"}"

utah/10472769.json

@@ -0,0 +1 @@
+"{\"id\": \"10472769\", \"name\": \"BENNION INSURANCE COMPANY, a Utah Corporation, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, Shell Oil Co., a corporation and Sevier County, Defendants and Respondents; Milton D. HENDRICKSON, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, and Utah Title and Abstract Company, a Utah Corporation, Defendants and Respondents\", \"name_abbreviation\": \"Bennion Insurance Co. v. 1st OK Corp.\", \"decision_date\": \"1977-11-08\", \"docket_number\": \"Nos. 14848, 14849\", \"first_page\": \"1339\", \"last_page\": \"1343\", \"citations\": \"571 P.2d 1339\", \"volume\": \"571\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:44:31.080743+00:00\", \"provenance\": \"CAP\", \"judges\": \"ELLETT, C. J., and CROCKETT, MAU-GHAN and HALL, JJ., concur.\", \"parties\": \"BENNION INSURANCE COMPANY, a Utah Corporation, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, Shell Oil Co., a corporation and Sevier County, Defendants and Respondents. Milton D. HENDRICKSON, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, and Utah Title and Abstract Company, a Utah Corporation, Defendants and Respondents.\", \"head_matter\": \"BENNION INSURANCE COMPANY, a Utah Corporation, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, Shell Oil Co., a corporation and Sevier County, Defendants and Respondents. Milton D. HENDRICKSON, Plaintiff and Appellant, v. 1ST OK CORPORATION, a Utah Corporation, Morris H. Curtis, and Sadie P. Curtis, his wife, and Utah Title and Abstract Company, a Utah Corporation, Defendants and Respondents.\\nNos. 14848, 14849.\\nSupreme Court of Utah.\\nNov. 8, 1977.\\nGrant M. Prisbrey, Salt Lake City, for plaintiffs and appellants.\\nJohn H. Allen, Salt Lake City, Tex R. Olsen of Olsen & Chamberlain, Richfield, for defendants and respondents.\", \"word_count\": \"1688\", \"char_count\": \"10090\", \"text\": \"WILKINS, Justice:\\nTwo actions of foreclosure of mortgages are consolidated here as the material facts and law are applicable to both cases. Summary judgment was granted to the Defendants Curtis in each case by the District Court for the County of Sevier on the ground that the deed on which plaintiffs' mortgagor, 1st OK Corporation, depended for title was void ab initio. Plaintiffs appeal, and only Defendants Curtis responded herein.\\nPlaintiffs in each case brought action to foreclose a mortgage received from 1st OK Corporation. The mortgages were secured by different parcels of real property, each approximately one acre in size and both originally part of a larger tract of land containing some 91 acres conveyed by Defendant Curtis to Utah Title and Abstract Company, as trustee, under a trust agreement authorizing the trustee to convey title to 1st OK Corporation in accordance with the terms of a real estate contract entered into between Defendants Curtis, as sellers, and 1st OK Corporation, as buyer.\\nPrior to the time these foreclosure actions were filed, but after the subject mortgages were recorded, litigation developed among 1st OK Corporation, Utah Title and Abstract Company, and Morris H. Curtis and Sadie P. Curtis, in which the Curtises sought rescission of the contracts and deed on the ground of fraud practiced on them by the president of 1st OK Corporation, Orlando Fiandaca. That litigation was resolved in favor of the Curtises, and judgment was entered declaring all of the contracts involved, including the deed, void, and quieting title to the entire tract of real property in the Curtises. Upon appeal to this Court, that judgment was affirmed.\\nPlaintiffs here, the mortgagees, were not parties to the former action, and are not bound by that judgment. And the distinctions urged upon us, infra, by plaintiffs were not involved in the prior action, and therefore not ruled upon by this Court.\\nPlaintiffs argue that the fraud practiced by Orlando Fiandaca, (which is recited in the affidavit of the Curtises on file in this action) was fraud in the inducement but not fraud in factum, which must be shown if the deed was void ab initio, and that the District Court erred in granting summary judgment to the Curtises on that basis. Plaintiffs' main contention is that as a matter of law, the judgment entered in the prior action did not terminate the rights of the mortgagees as bona fide purchasers who purchased interests in the real property prior to the time the deed was voided.\\nFurther, the plaintiffs argue that fraud in factum is found only where forgery is proved, or where the fraud is tantamount to forgery, such as where an incompetent person is induced to sign a deed, or where the deed is surreptitiously substituted for another instrument the grantor believes he is signing; in other words, where it is proved that the deed was not the deed of the grantor. A deed void ab initio carries no title on which a bona fide purchaser may rely, whereas a deed voidable in equity may be the basis of good title in the hands of a bona fide purchaser who gave value prior to the time the deed was avoided by the grant- or.\\nIt appears from the affidavit filed by the Curtises themselves that Fiandaca, after establishing a confidential relationship between himself and the Curtises, induced them to sign the deed by false representations. The Curtises relied upon his purported greater knowledge and expertise, and his promises, subsequently broken, to so develop the property which he was purchasing from them as to substantially enhance the value of the property they retained. Fian-daca, discouraged the Curtises from seeing an attorney, and drew the deed himself, as well as all of the other documents which the Curtises signed, and which were invalidated in the former action. In drawing the deed, Fiandaca described 91 acres of real property, and represented to the Curtises that they were selling him only 70 acres.\\nDefendants Curtis maintain that this last fact especially establishes fraud in factum, arguing that they would never have signed the deed had they known the true fact, and therefore the deed was not the deed of the grantors, and hence was void ab initio.\\nWe cannot agree. The fraud proved in the prior case was not forgery and was not tantamount to forgery. It appears that the Curtises knew they were signing a deed, and understood that the instrument conveyed all of their interest in the property described. This is buttressed by the fact that they signed it not once but twice; first on December 15,1972, and again on May 25, 1973, the latter having been, executed to correct the description of the real property. While it is arguable that the Curtises might not have agreed to the same consideration under the contract for the sale had they known that the deed described 91 acres rather than 70, it cannot be said that the deed was not the deed of the grantors, when they understood and intended that it should be a deed. We therefore hold that the Court erred in ruling that the deed was void ab initio, as this was not fraud in factum.\\nPlaintiffs further urge this Court to render judgment in their favor, and to instruct the District Court to proceed with the foreclosures. This we cannot do inasmuch as this appeal arises from summary judgment. In the Bennion Insurance Company case, there is insufficient evidence in the record to show that the plaintiff is in fact a bona fide purchaser and had no notice, actual or constructive, of the fraud or the precarious state of title. Further, the Bennion mortgage was executed by 1st OK Corporation, and there is nothing in the record to show that 1st OK Corporation, had a deed to the real property described, at the time it executed the mortgage. If there was in fact no such deed, Plaintiff Bennion must have had notice that 1st OK Corporation had no mortgageable interest.\\nDefendants argue that Plaintiff Hendrickson is not a bona fide purchaser and cannot prevail under any theory. We agree. Utah Title and Abstract Co., as trustee of Defendants Curtis had instructions to transfer title to 1st OK Corporation upon the performance of certain conditions. Prior to the Plaintiff Hendrickson transaction, the Curtises sent notice to the said trustee that a condition under the contract had not been met, and that they intended to elect to terminate the contract unless the annual payment, then delinquent for thirty days, was received from 1st OK Corporation within five days. 1st OK Corporation was served with the same notice on February 7, 1974. On the 12th day of February, Plaintiff Hendrickson delivered $15,250 to Utah Title and Abstract Co., acting also as his escrow agent, with instructions to disburse the funds on behalf of 1st OK Corporation when the title company could \\\"insure and record the attached mortgage as a first mortgage.\\\" Two days thereafter, on the 14th of February, the Curtises delivered notice to their trustee of their election to terminate the contract, and ordered the trustee to reconvey the property to them. The trustee placed the proceeds in an escrow account, and, without insuring title, recorded the mortgage on February 19, 1974. The first litigation in this matter then ensued, as noted supra, resulting in an avoidance of the contract and the deed granting title to the trustee. The trustee, it is admitted by all parties, still holds the funds deposited by Plaintiff Hendrickson in its escrow account.\\nIt is clear that the funds deposited by Plaintiff Hendrickson were to be released to the mortgagor, 1st OK Corporation, only upon the performance of a condition imposed by plaintiff and that that condition has never been met. 1st OK Corporation never became entitled to the funds, and sufficient time has elapsed to enable Plaintiff Hendrickson to revoke the escrow and demand the return of the funds for failure of a condition. There is no debt owed by 1st OK Corporation to Plaintiff Hendrick-son since the corporation never received the funds. In order to invoke equity to protect his interest as a bona fide purchaser, Plaintiff Hendrickson must first prove that he has given value for his interest. Where the funds deposited by him are still accessible to said plaintiff merely by revoking the escrow for failure of a condition imposed by him, the plaintiff has parted with nothing of value.\\nThe judgment entered by the District Court is reversed and the case of Bennion Insurance Co. v. 1st OK Corporation, et al., District Court No. 7274, is remanded to the District Court for Sevier County for further proceedings. The case of Milton D. Hendrickson v. 1st OK Corporation, et al., District Court No. 7111, is remanded to the District Court for Sevier County with instructions to enter judgment in favor of plaintiff and against Defendant Utah Title and Abstract Company ordering that defendant to release the escrowed funds to Plaintiff Hendrickson in accordance with the prayer of plaintiff's complaint, and dis missing the complaint against all other parties.\\nELLETT, C. J., and CROCKETT, MAU-GHAN and HALL, JJ., concur.\\n. 1st OK Corporation v. Curtis, Utah, 550 P.2d 157 (1976).\\n. Federal Land Bank of Berkeley v. Pace, 87 Utah 156, 48 P.2d 480 (1935).\\n. See generally 23 Am.Jur.2d, Deeds, Sections 144 and 145.\\n. See generally 23 Am.Jur.2d, Deeds, Section 137; 26 C.J.S. Deeds \\u00a7 67 and 68, and the cases cited therein.\"}"

utah/10476297.json

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+"{\"id\": \"10476297\", \"name\": \"DESERT LIVESTOCK COMPANY, a corporation, and Anschutz Land And Livestock Company, Inc., a corporation, Plaintiffs and Appellants, v. UTAH POWER & LIGHT COMPANY, a Public Utility Corporation, Defendant and Respondent\", \"name_abbreviation\": \"Desert Livestock Co. v. Utah Power & Light Co.\", \"decision_date\": \"1975-10-30\", \"docket_number\": \"No. 14008\", \"first_page\": \"1111\", \"last_page\": \"1113\", \"citations\": \"541 P.2d 1111\", \"volume\": \"541\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:26:56.723621+00:00\", \"provenance\": \"CAP\", \"judges\": \"ELLETT, CROCKETT, TUCKETT and MAUGHAN, JJ., concur.\", \"parties\": \"DESERT LIVESTOCK COMPANY, a corporation, and Anschutz Land And Livestock Company, Inc., a corporation, Plaintiffs and Appellants, v. UTAH POWER & LIGHT COMPANY, a Public Utility Corporation, Defendant and Respondent.\", \"head_matter\": \"DESERT LIVESTOCK COMPANY, a corporation, and Anschutz Land And Livestock Company, Inc., a corporation, Plaintiffs and Appellants, v. UTAH POWER & LIGHT COMPANY, a Public Utility Corporation, Defendant and Respondent.\\nNo. 14008.\\nSupreme Court of Utah.\\nOct. 30, 1975.\\nRichard L. Bird, Jr., of Richards, Bird & Kump, David A. Robinson, Salt Lake City, for plaintiffs-appellants.\\nS. G. Baucom, Robert Gordon, Salt Lake City, for defendant-respondent.\", \"word_count\": \"939\", \"char_count\": \"5768\", \"text\": \"HENRIOD, Chief Justice:\\nAppeal from an order dismissing plaintiff's cause of action. Affirmed, with costs to defendant.\\nPlaintiffs were individual, unassociated ranchers and customers of defendant, along with 65 others, in a remote area of Tooele County, Utah. Defendant delivered electric power to both at a specified point, where each of plaintiffs accepted such power into its own individual transmission and equipment system, that was employed for irrigation and other purposes, under an agreement which incorporated certain Public Service Commission Regulations.\\nRegulation 18 provides that the Power Company will furnish continuous services but \\\"does no guarantee it against irregularities and interruptions.\\\" Regulation 22 provides that the customer \\\"assumes all responsibility on Customer's side of point of Delivery for service supplied or taken, as well as for the electrical installation and appliances used in connection therewith,\\\" indemnifying and saving the Company harmless from all claims, etc. for injury to person or property resulting from the transmission or use of the power on that side.\\nOn about the 18th-20th of June, 1970, Deseret's manager found one of its irrigation pumps not operating. He called a repairman, who came the same day, but the manager did not notify the defendant of the difficulty. At that time three other pumps were operating. The repairman said the \\\"damage to the pump was caused by a sustained outage followed by a phase reversal (switch in lines) which had to be caused and corrected by man.\\\"\\nAt about the same time in June, 1970, the foreman of plaintiff, Anschutz, called the latter's manager and reported a similar failure, because of phase reversal, of a similar pump, which occurred five days before, that was repaired, for which repair an invoice amount dated August 4, 1970, duly was paid in September, 1970, by plaintiff. There was another pump on the ranch that was not damaged. A witness for the plaintiff said such a reversal would have to take place above the ranch and \\\"toward the sub-station or generating plant.\\\"\\nIt was not until February 11, 1971, more than seven months after the pump failures, that plaintiff's attorney finally notified defendant of the damages claimed by his clients, which, to his knowledge, was the first notification given.\\nAt the time of and after the pump failures, no complaint was lodged with or reported to defendant by any of the numerous other customers. The plaintiffs suggested such circumstances might be reconciled by the fact that the damage may have occurred at night when the customers were asleep, \\u2014but at least no damage was reported.\\nAt the close of plaintiff's case the defendant moved for a dismissal, which was taken under advisement.\\nAt that time the trial judge told defendants' counsel, \\\"You can stop now or you can proceed without waiving your motion.\\\" Counsel proceeded, introduced his evidence, and rested his case, at which time the court granted the motion to dismiss and entered a memorandum order to that effect. Upon objection by plaintiffs that he had not entered findings of fact and conclusions, he did so without further adieu. Having done all this, particularly in withholding action on the motion to dismiss, we believe the judge was not only justified procedurally in granting the motion under Rule 41(b), Utah Rules of Civil Procedure, but exercised a discretion reserved to himself irrespective of such rule. All of which leads us to conclude that plaintiffs' Points I and II on appeal, having to do with plaintiffs' urgence that the trial court was required to look solely to plaintiffs' evidence in acting on the motion, is without merit.\\nPlaintiffs contend that Finding No. 14, having to do with canvassing evidence that the power company had no record of complaint, was erroneous. We do not agree with such contention since it assumes something might have been in the record which was not there, upon which we cannot speculate. We think the evidence in the record amply supports the court's finding.\\nAs to Point IV, which urges that the doctrine of res ipsa loquitur applies, such contention is not borne out in the brief by anything said in plaintiffs' statement of facts, or by the record. Plaintiffs suggest a theory and conclusion in their argument that are not only gratuitous, but unwarranted in the evidence and not consonant with the interdictions of Regulations 18 and 22 incorporated in their agreement, \\u2014all of which seems to wash out any suggested application of that doctrine here. We believe and conclude that our pronouncements in Loos v. Mtn. Fuel Supply and Wightman v. Mtn. Fuel Supply to be dispositive here.\\nAs to Points V, VI, and VII, having to do with breach of 1) express, and 2) implied warranties, and 3) the courts' comment on the damages, respectively: The claims that defendant furnished defective electric power is speculative and devoid of any proof whatever, and this court having affirmed the trial court's judgment of non-liability, the matter of comment about the damages by the court needs no comment here.\\nELLETT, CROCKETT, TUCKETT and MAUGHAN, JJ., concur.\\n. Charles v. Judge, 263 F.2d 864 (1959) only case cited for such contention, does not stand for it at all, \\u2014 which see.\\n. 99 Utah 496, 108 P.2d 254 (1940).\\n. 5 Utah 2d 373, 302 P.2d 471 (1956).\"}"

utah/11303050.json

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+"{\"id\": \"11303050\", \"name\": \"ALLEN AND ASSOCIATES, Plaintiff, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant\", \"name_abbreviation\": \"Allen & Associates v. Board of Review of the Industrial Commission, Department of Employment Security\", \"decision_date\": \"1987-01-20\", \"docket_number\": \"No. 860318\", \"first_page\": \"508\", \"last_page\": \"509\", \"citations\": \"732 P.2d 508\", \"volume\": \"732\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:36:58.327505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ALLEN AND ASSOCIATES, Plaintiff, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant.\", \"head_matter\": \"ALLEN AND ASSOCIATES, Plaintiff, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH, DEPARTMENT OF EMPLOYMENT SECURITY, Defendant.\\nNo. 860318.\\nSupreme Court of Utah.\\nJan. 20, 1987.\\nSteven C. Tycksen, Midvale, for plaintiff.\\nLinda Wheat Field, Salt Lake City, for defendant.\", \"word_count\": \"760\", \"char_count\": \"4830\", \"text\": \"PER CURIAM:\\nPetitioner Allen and Associates Membership Development Company (hereafter \\\"Allen\\\") engages in the solicitation and development of memberships for the Salt Lake area chamber of commerce. Allen employs sales personnel who make direct contact with local Salt Lake businesses to solicit their memberships. These sales people are claimed by Allen to be \\\"independent contractors\\\" and not subject to unemployment insurance contributions under our Utah Employment Security Act, U.C.A., 1953, \\u00a7 35-4-1, et seq. (1974 ed.) (as amended).\\nThe Utah Department of Employment Security determined that Allen's sales personnel were employees covered under the Employment Security Act and that Allen was subject to unemployment insurance reporting and contributions. On administrative appeal, the decision was affirmed by an administrative law judge and by the Board of Review. Before this Court, Allen argues that it meets the \\\"ABC\\\" test of section 35 \\u2014 4\\u201422(j)(5) that excludes its sales employees from unemployment coverage. Allen also claims that because its employees are outside salespersons who are paid commissions, they are excluded under section 35-4-22(r).\\nClaiming that the decision of the Board of Review is unreasonable and irrational, Allen relies only upon its view of the evidence before the administrative tribunals and ignores contradictory evidence which supports the rulings below. We give maxi mum deference to the basic facts determined by the agency, which will be sustained if there is evidence of any substance that can reasonably be regarded as supporting the determination made. Because we give such great deference to the Commission's findings of basic facts and find substantial evidence to support them, we disregard Allen's conflicting evidence to the contrary.\\nWithout an unnecessary recitation of the evidence, we consider it more than ample to support the Board's findings that services of Allen's sales employees were not all performed outside of Allen's business office and that Allen fails to meet the exception of section 35-4-22(r). Also, these employees were not shown to be engaged in independently established sales businesses. Consequently, Allen fails to meet the requirement of subsection \\\"C\\\" of the \\\"ABC\\\" test in section 35-4-22(j)(5). The decision of the Board of Review that Allen is subject to unemployment contributions and reporting is consistent with Superior Cablevision Installers, Inc. v. Industrial Commission, 688 P.2d 444, 448 (Utah 1984); New Sleep, Inc. v. Department of Employment Security, 703 P.2d 289, 290 (Utah 1985); and Leach v. Board of Review, 123 Utah 423, 260 P.2d 744 (1953). We affirm.\\n. All statutory citations herein are to provisions of the Utah Employment Security Act, U.C.A., 1953, \\u00a7 35-4-1, etseq. (1974 ed.) (as amended).\\n. The Department's determination came after John James, a former Allen employee, provided his employment history to the Department in connection with an unemployment claim filed against a subsequent employer. No unemployment benefit claim was filed by an employee against Allen.\\n.Section 35-4-22(r) provides: \\\"Unless services would constitute employment at common law, the term 'employment' shall not include services as an outside salesman paid solely by way of commission, and such services must have been performed outside of all places of business of the enterprises for which such services are performed.\\\"\\n. Utah Dep't of Admin. Servs. v. Public Serv. Comm'n, 658 P.2d 601, 608-09 (Utah 1983); Kennecott Copper Corp. Employees v. Department of Employment Sec., 13 Utah 2d 262, 372 P.2d 987 (1962).\\n. Williams v. Public Serv. Comm'n, 29 Utah 2d 9, 504 P.2d 34 (1972); cf. 658 P.2d at 609.\\n. Section 35-4-22(j)(5) provides, in part:\\nServices performed by an individual for wages or under any contract of hire, written or oral, express or implied, shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that:\\n(C) Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service.\\nThis section was amended in 1986 to delete subsection (B) of the \\\"ABC\\\" test and rename the above-quoted (C) as the new subsection (B). See U.C.A., 1953, \\u00a7 35-4-22(j)(5) (Supp.1986) (as amended). Consequently, the former \\\"ABC\\\" test is now an \\\"AB\\\" test. Although our decision is based upon the \\\"ABC\\\" test prior to its amendment, the result here would not be different under the amended statute.\"}"

utah/11435999.json

@@ -0,0 +1 @@
+"{\"id\": \"11435999\", \"name\": \"DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, Plaintiff and Appellee, v. CITY OF BOUNTIFUL, Defendant and Appellant\", \"name_abbreviation\": \"Davis County Solid Waste Management v. City of Bountiful\", \"decision_date\": \"2002-07-02\", \"docket_number\": \"No. 20010318\", \"first_page\": \"1174\", \"last_page\": \"1179\", \"citations\": \"52 P.3d 1174\", \"volume\": \"52\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:52:11.235743+00:00\", \"provenance\": \"CAP\", \"judges\": \"121 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.\", \"parties\": \"DAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, Plaintiff and Appellee, v. CITY OF BOUNTIFUL, Defendant and Appellant.\", \"head_matter\": \"2002 UT 60\\nDAVIS COUNTY SOLID WASTE MANAGEMENT and Energy Recovery Special Service District, Plaintiff and Appellee, v. CITY OF BOUNTIFUL, Defendant and Appellant.\\nNo. 20010318.\\nSupreme Court of Utah.\\nJuly 2, 2002.\\nRussell L. Mahan, John C. Ynchausti, Bountiful, for defendant.\\nLarry S8. Jenkins, Sheri A. Mower, Salt Lake City, for plaintiff.\", \"word_count\": \"3084\", \"char_count\": \"19420\", \"text\": \"WILKINS, Justice:\\n{1 This appeal requires us to interpret a section of the Utah Code that has since been superseded, Utah Code Ann. \\u00a7 10-2415 (1986). Specifically, we must determine whether, under the statute, annexation occurred (1) when an annexation resolution was passed, or (2) when the resolution and plat were filed with the county recorder's office. The district court concluded that the statute provided for annexation upon filing. We affirm.\\nFACTUAL AND PROCEDURAL - BACKGROUND\\n12 The facts are undisputed. Bountiful City passed an annexation resolution on August 29, 1984, annexing an area of land in Davis County. However, the annexation resolution and an accompanying boundary de-seription were not filed with the Davis County Recorder until November 9, 1984. Before the resolution and boundary description were filed, the Davis County Solid Waste Management and Energy Recovery Service District (\\\"Service District\\\"), a special service district under Utah law, see Utah Code Ann. \\u00a7 11-23-1 to -30 (1986), was created by the Davis County Commission on September 24, 1984. The Service District was created to provide waste management services in Davis County, specifically to households in unincorporated areas and households in municipalities that wished to be part of the special service district. Bountiful City opted not to be part of the Service District.\\n13 Pursuant to state law, the Service District is entitled to impose and collect a usage fee for the services or facilities it provides. Utah Code Ann. \\u00a7 11-28-19 (1986) (amended 1988, 1990, and 2001, and renumbered as \\u00a7 17A-2-1820). The Service District adopted, by resolution, a monthly household usage fee for those households serviced within the district. This fee took effect on July 1, 1995. The resolution was later amended on April 3, 1996, and further changes became effective on July 1, 1996, to include the imposition of a commercial use fee, also by resolution. Following a 1997 audit, the Service District concluded that Bountiful City had not remunerated it for fees to which the Service District considered itself entitled. The Service District made verbal and written demands for fees allegedly accrued since July 1, 1995, but Bountiful City refused to pay.\\n1 4 Consequently, the Service District sued Bountiful City seeking, among other things, a declaratory judgment that the geographical area in question was, and still is, actually part of the Service District, and not exelu-sively part of Bountiful City. The Service District insists that annexation of the territory did not occur when the resolution was passed because annexation could not have occurred until the annexation resolution and boundary description were filed with the county recorder. As a result, according to the Service District, because the Service District was created before the annexation resolution was filed on November 9, 1984, the territory was, and still is, part of the Service District.\\n5 Both parties moved for partial summary judgment. The district court granted partial summary judgment in favor of the Service District, concluding that, pursuant to section 10-4-415, annexation could not have occurred until the appropriate documents were filed with the county recorder, and therefore the disputed area became part of the Service District as of September 24, 1984. Eventually, the parties entered into a settlement agreement, settling some issues in dispute, but leaving open Bountiful City's right to appeal the district court's decision regarding when the disputed territory was annexed. Bountiful City appeals this ruling.\\nISSUE PRESENTED\\nT 6 The only issue on appeal is whether, in granting summary judgment, the district court. correctly interpreted section 10-2-415 as it read in 1984 when the annexation resolution was passed and later recorded. The statute in question, Utah Code Ann. \\u00a7 10-2-415 (1986), was enacted in 1979, see 1979 Utah Laws ch. 25 \\u00a7 16, and amended in 1983, see 1983 Utah Laws ch. 69 \\u00a7 1. It read as follows in 1984;\\nIf: (1) an annexation proposed in the policy declaration, in the judgment of the municipality, meets the standards set forth in this chapter; and (2) no protest has been filed by written application by an affected entity within five days following the public hearing, the members of the governing body may by two-thirds vote adopt a resolution or ordinance of annexation in accordance with the terms of the policy declaration adopted by the governing body, and the territory shall then and there be annexed. If an annexation proposed in the policy declaration has been protested within the allowable time by application to the local boundary commission, the governing body is subject to the decisions of that commission unless overturned by an appeal to the district court. After receiving notification of approval of the proposed action from the commission or after complying with the terms of a conditional approval, the governing body may by two-thirds vote adopt a resolution or ordinance of annexation. If the territory is annexed, a copy of the duly certified transparent reproducible plat or map shall at onee be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annexation. On filing the maps or plats, the annexation shall be deemed and held to be part of the annexing municipality, and the inhabitants thereof shall enjoy the privileges of the annexing municipality.\\nUtah Code Ann. \\u00a7 10-2415 (1986).\\n117 Bountiful City argues annexation of the geographical area in question occurred on August 29, 1984, when the city adopted the annexation resolution. Therefore, they reason, when the Service District was created on September 24, 1984, the Service District did not include the disputed territory because that area was already part of Bountiful City, having been annexed on August 29. Bountiful City contends that under the plain language of the statute, the territory was \\\"then and there\\\" annexed when the Bountiful City Council passed the annexation resolution, which Bountiful City deems the determinative legislative act. The recording of the annexation plat, according to the city, was merely a ministerial step. Bountiful City also insists that the court should attempt to harmonize the apparent contradictory language in the statute, but that if the statute cannot be harmonized, the annexation resolution must be given primacy over the ministerial act of recording.\\n18 The Service District claims that the statute required the annexation resolution, together with the required plat, to be filed for annexation to be complete. Therefore, according to the Service District, the unincorporated territory, including the disputed territory, became part of the Service District on September 24, 1984, because the district was created before the resolution and plat were filed with the Davis County Recorder on November 9, 1984. The Service District insists that under the plain language of the statute, annexation could not have occurred until the resolution and plat were filed. The Service District further contends that Utah case law supports its position, to which Bountiful City counters that the case law relied upon by the Service District is inapposite because it deals with statutes in effect before the statute at issue was enacted.\\nSTANDARD OF REVIEW\\n\\u00b6 9 We review the district court's grant of summary judgment for correctness. Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); see also, e.g., Kearns-Tribune Corp. v. Salt Lake County Comm'n, 2001 UT 55, \\u00b6 7, 28 P.3d 686. In reviewing a grant of summary judgment, we give the court's legal decisions no deference, reviewing for correctness. Kearns-Tribune Corp., 2001 UT 55 at \\u00b6 7, 28 P.3d 686. Specifically, a district court's interpretation of a statutory provision is a question of law that we review for correctness. State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, \\u00b6 8, 44 P.3d 680.\\nANALYSIS\\n\\u00b6 10 When we interpret statutes, our primary goal is to give effect to the legislature's intent. E.g., Day v. Meek, 1999 UT 28, \\u00b6 6, 976 P.2d 1202. To determine the legislature's intent, we look first to the statute's plain language. Id. We analyze the language of a statutory provision in light of other provisions within the same statute or act, and we attempt to harmonize the provisions in accordance with the legislative intent so as to give meaning to each provision. See id. One could claim that the interpretations argued by both Bountiful City and the Service District are reasonable, and therefore the statute is ambiguous. However, in considering the structure of this statute, and in order to give effect to each of the three sections of the statute as explained below, we conclude that only one interpretation, that annexation occurs upon filing, is reasonable.\\n1 11 Given the structure of the statute, we conclude that the legislature required a two-step annexation process. The first step of the process found in section 10-2415 specifies two alternate procedures imposed on the governing bodies of municipalities that must be followed to adopt an annexation resolution or ordinance. This first step differs depending on whether the annexation is protested. Second, regardless of whether or not the annexation was protested, the statute requires the resolution or ordinance declaring the annexation to be filed, together with the required plats or maps. Clearly the legislature intended filing to occur regardless of whether the annexation was protested.\\n\\u00b6 12 Thus, our reading divides the statute into the following three sections:\\n[I.] If: (1) an annexation proposed in the policy declaration, in the judgment of the municipality, meets the standards set forth in this chapter; and (2) no protest has been filed by written application by an affected entity within five days following the public hearing, the members of the governing body may by two-thirds vote adopt a resolution or ordinance of annexation in accordance with the terms of the policy declaration adopted by the governing body, and the territory shall then and there be annexed.\\n[IL] If an annexation proposed in the policy declaration has been protested within the allowable time by application to the local boundary commission, the governing body is subject to the decisions of that commission unless overturned by an appeal to the district court. After receiving notification of approval of the proposed action from the commission or after complying with the terms of a conditional approval, the governing body may by two-thirds vote adopt a resolution or ordinance of annexation.\\n[III] If the territory is annexed, a copy of the duly certified transparent reproducible plat or map shall at onee be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annex ation. On filing the maps or plats, the annexation shall be deemed and held to be part of the annexing municipality, and the inhabitants thereof shall enjoy the privileges of the annexing municipality.\\nUtah Code Ann. \\u00a7 10-2415 (1986). In order to give effect to the third section, the filing section, the statute must be construed so that annexation occurs upon filing. To construe the statute otherwise, so that annexation occurs upon passage of the annexation resolution or ordinance, would render the filing requirement virtually meaningless.\\n113 First, the statutory language mandates immediate filing and indicates that filing is necessary before the annexation process is complete. Under the statute, the first step of annexation oceurs upon adoption of a resolution or ordinance of annexation. If annexation is not protested, a two-thirds vote from the local governing body is necessary to adopt an annexation resolution. Likewise, even if annexation is protested and a boundary commission must approve the annexation, the local governing body must still resolve to annex by a two-thirds vote. Therefore, regardless of whether a proposed annexation was protested, in order for a geographical area to be annexed, the local governing body must, by two-thirds vote, adopt a resolution or ordinance of annexation.\\n1 14 Then, once the local governing body- and the boundary commission, if necessary-has approved the annexation, the second step of annexation requires filing with the county recorder. The language explicitly requires that \\\"a copy of the duly certified transparent reproducible plat or map shall at once be filed in the office of the county recorder, together with a certified copy of the resolution or ordinance declaring the annexation.\\\" \\u00a7 10-2415 (1986) (emphasis added). The legislature mandated that the resolution and plats or maps be filed immediately following the passage of the resolution.\\n{15 Second, specific statutory language states that filing is necessary before the \\\"privileges\\\" of annexation can be enjoyed, and further language states that annexation \\\"shall be deemed and held to be part of the annexing municipality\\\" only after filing. \\u00a7 10-2-415 (1986). Under the statute, whatever privileges or benefits were to be had from annexation could not be taken advantage of until filing. Indeed, the statutory language indicates that \\\"the inhabitants [of the annexation] shall enjoy the privileges of the annexing municipality [upon filing].\\\" \\u00a7 10-2-415 (1986). The plain language also indicates that not until \\\"filing [of] the maps or plats [shall] the annexation . be deemed and held to be part of the annexing municipality.\\\" \\u00a7 10-2-415 (1986). These two clauses, suggesting that the annexed area was not \\\"deemed and held to [have been] part of the annexing municipality,\\\" and that privileges of the annexation were not to be enjoyed until filing occurred, persuade us that the legislature did not intend annexation to be final until filing.\\n1 16 Third, interpreting the statute so that annexation occurs upon filing gives effect to the concept of public notice. The statute encourages immediate filing in order to place the public on notice that the territory had been annexed under the statutory scheme. Thus, Bountiful City had to file the resolution and the required plats or maps in order for the public to be on notice that the area in dispute had been incorporated into Bountiful City. If we were to interpret the statute so that annexation occurred upon passage of the resolution, the public would be unaware that the land had been annexed until the proper documents were filed, unless they were present at the meeting. Interpreting the statute to make annexation effective upon filing gives effect to this notion of public notice.\\n1 17 Bountiful City argues that to interpret the statute so that annexation occurs upon filing does not give effect to the clause in the first section that \\\"the territory shall then and there be annexed\\\" upon passage of an annexation resolution by the governing body. However, we interpret this \\\"then and there\\\" language to mean that annexation, as it pertains to the governing body, has occurred upon passage of an annexation resolution or ordinance, but annexation as it pertains to the public has not. In other words, as applied to the governing body that passed the annexation resolution, the territory is then and there annexed; but as to the public, the territory is not yet annexed until filing. The property is annexed as to the governing body because the governing body is then required to continue to follow the annexation statute and file the resolution or ordinance with the required plats: or maps. Thus, in order to disconnect a territory from a municipality, the statutory process must be followed. See Utah Code Ann. \\u00a7 10-2-501 to -509 (1986) (setting forth the process by which territory within a municipality could be disconnected from the municipality). The governing body cannot simply fail to file the required doeu-ments to then prevent annexation. Thus, as to the governing 'body, the territory is \\\"then and there\\\" annexed upon passage of the annexation resolution, and the annexation is binding upon it. The annexation is not binding on the public, however, until the required documents are filed, thereby placing the public on notice of the annexation.\\nT18 This holding, that annexation occurred upon filing, is consistent with other parts of chapter 2, title 10 of the Utah Code in effect in 1984 that also required filing before incorporation, disconnection, and consolidation of municipalities-actions that also impact municipal boundaries-were deemed complete. See Utah Code Ann. \\u00a7 10-2-109 (1986) (explaining that towns containing more than 100 but less than 800 people may incorporate by filing a petition with the board of county commissioners, and requiring that the petition include the \\\"legal de-seription and the boundaries of the territory\\\" and be filed with the county recorder before the incorporation \\\"shall be complete\\\"); Utah Code Ann. \\u00a7 10-2-508 (1986) (\\\"On filing of the articles of amendment required by \\u00a7 10-2-507 with the county recorder and lHeuten-ant governor, disconnection shall be complete.\\\"); Utah Code Ann. \\u00a7 10-2-611 (1986) (\\\"On filing the articles of consolidation with the lieutenant governor, the incorporation of the new municipality shall be complete and the original municipalities involved in the consolidation shall be deemed to be disincor-porated.\\\").\\n{19 Finally, Bountiful City claims that annexation should occur upon passage of the annexation resolution because passage of the annexation resolution was the determinative legislative act and filing is merely a ministerial function. We disagree with this reasoning. The determination of municipal boundaries is indeed a legislative function. \\\"More accurately, [however,] the determination of municipal boundaries is a function of the state legislature, as opposed to a local legislative body.\\\" Kearns-Tribune Corp., 2001 UT 55 at T21, 28 P.3d 686. \\\"This is because local governmental bodies, as political subdivisions of the state, have no inherent control over their own boundaries as they derive their powers from the State.\\\" Id. (citations omitted). Thus, it is not the alleged municipal legislative act that is determinative. Rather, when the state legislature enacted the statutory framework that controlled the annexation process in 1984, the legislature delegated, to a certain extent, the authority over annexation, see, eg., Sandy City v. City of South Jordan, 652 P.2d 1816, 1318-19 (Utah 1982), and it is the interpretation of the statute delegating the annexation process to local municipalities that controls this case.\\nCONCLUSION\\n1 20 The district court was correct to conclude that under the statute, Utah Code Ann. \\u00a7 10-2415 (1986), annexation occurred upon filing. The decision of the district court is affirmed.\\n121 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.\"}"

utah/11504360.json

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+"{\"id\": \"11504360\", \"name\": \"David PUGH, Plaintiff and Appellee, v. NORTH AMERICAN WARRANTY SERVICES, INC., Defendant and Appellant\", \"name_abbreviation\": \"Pugh v. North American Warranty Services, Inc.\", \"decision_date\": \"2000-05-04\", \"docket_number\": \"No. 981712-CA\", \"first_page\": \"570\", \"last_page\": \"577\", \"citations\": \"1 P.3d 570\", \"volume\": \"1\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:34:46.359891+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GREENWOOD, P.J., ORME, and WILKINS, JJ.\", \"parties\": \"David PUGH, Plaintiff and Appellee, v. NORTH AMERICAN WARRANTY SERVICES, INC., Defendant and Appellant.\", \"head_matter\": \"2000 Utah Ct. App. 121\\nDavid PUGH, Plaintiff and Appellee, v. NORTH AMERICAN WARRANTY SERVICES, INC., Defendant and Appellant.\\nNo. 981712-CA.\\nCourt of Appeals of Utah.\\nMay 4, 2000.\\nRobert W. Hughes, Salt Lake City, and Mark P. Cohen, Oak Brook, Illinois, for Appellant.\\nKendall S. Peterson, Peterson, Reed, LLC, Salt Lake City, for Appellee.\\nBefore GREENWOOD, P.J., ORME, and WILKINS, JJ.\\n. Justice Wilkins heard the arguments in this case and participated in its resolution prior to his swearing-in as a member of the Utah Supreme Court.\", \"word_count\": \"3793\", \"char_count\": \"23350\", \"text\": \"OPINION\\nORME, Judge:\\n{1 Defendant North American Warranty Services, Inc. appeals the trial court's judgment awarding plaintiff David Pugh damages and attorney fees for North American's breach of its vehicle service contract with Pugh. We affirm and remand so that Pugh may additionally recover attorney fees incurred on appeal.\\nBACKGROUND\\nT2 Plaintiff Pugh purchased a used 1990 Ford Thunderbird automobile on November 16, 1995. At the same time, Pugh purchased a Vehicle Service Contract from North American. This contract covered any breakdown for two years or 24,000 miles, whichever came first. Under the terms of the contract, North American agreed to fix each breakdown that should occur during the warranty period by \\\"provid[ing] such repair or replacement (plus labor) [itself, or reim-burs[ing] an authorized repair facility to do so.\\\"\\nT3 On May 26, 1997, with only five miles remaining on the service contract, Pugh experienced transmission trouble on the road between St. George and Cedar City. Pugh's Thunderbird was towed to Parkway Motors in Cedar City. Parkway inspected the vehicle's transmission pan and discovered metal shavings or filings, discolored transmission fluid: that smelled burnt, and evidence that transmission fluid had leaked out of the rear housing seal.\\nT4 Pugh immediately reported the breakdown to North American, which sent its agent to inspect the vehicle. Parkway's me-chaniecs informed the agent of the metal flecks found in the transmission pan, the burnt fluid, and the leaks in the rear housing seal.\\n15 The agent, pursuant to instructions given to him by North American, instructed Parkway's mechanics to reinstall the transmission pan so that be could test drive the vehicle. After driving the vehicle for 11 miles, the agent noted only that the transmission shifted roughly into overdrive. In his report to North American, he indicated that the cause of the car's failure was \\\"{olil leaked from trans seal.\\\" Based on the agent's investigation and report, North American authorized only the replacement of the rear transmission seal.\\n16 Pugh, through his attorney, wrote to North American on June 11, 1997, informing it that both he and Parkway's mechanics felt that the repairs authorized by North American were inadequate and that the entire transmission needed to be repaired or replaced. In spite of this, North American continued to refuse to authorize any further repairs, during which time Pugh's vehicle remained at Parkway's garage.\\n17 On November 24, 1997, the parties entered into an \\\"Interim Agreement,\\\" in which they agreed to share the cost of tearing down and inspecting the transmission. North American further agreed to pay all inspection and repair costs if it was deter mined that the transmission was in need of repair.\\nT8 Two days later, Parkway's mechanics tore down the transmission, and the agent, again sent by North American to inspect the vehicle, concluded that the transmission was, indeed, in need of substantial repairs. On January 15, 1998, North American gave Parkway authorization to repair Pugh's transmission, but only on the condition that Pugh pay for the repairs himself, after which North American would reimburse him. This procedure was directly contrary to that outlined in the Vehicle Service Contract, requiring North American to do the repairs itself or directly pay a third-party repair facility, such as Parkway. Pugh refused to pay for the repair costs out of his own pocket, and the parties remained deadlocked. Meanwhile, Pugh's Thunderbird remained in something of a vehicle purgatory in Parkway's garage.\\n9 On April 22, 1998, nearly a year after the transmission failure first occurred, North American finally agreed to pay Parkway for the repair costs. North American sent a check to Parkway, but withheld one-half of the tear down costs ($165.00) and $60.00 for a freight charge for a part needed for the repair. These deductions violated the parties' 1997 \\\"Interim Agreement,\\\" in which North American had agreed to pay all of the tear down and repair costs if it were shown that the transmission itself needed repairs. During this entire ordeal, Pugh continued to make payments on the vehicle.\\n1 10 Pugh filed this action for breach of the service contract soon after North American first denied his demand to have the transmission repaired in 1997. After a bench trial some months later, the court determined that North American had breached its service contract with Pugh and awarded him $225.00 in repair costs; $185.00 in towing and emer-geney travel costs, minus any such amounts already paid by North American; $6,750.00 for Pugh's loss of the vehicle's use; and $6,739.75 in attorney fees and costs. North American appeals.\\nISSUES AND STANDARDS OF REVIEW\\nT11 Initially, North American challenges several of the trial court's Findings of Fact supporting its award of damages to Pugh for loss of the use of his vehicle. However, North American has failed to provide us with a transeript of the proceedings below. As a result, we are unable to review the evidence presented and thus cannot determine whether the trial court's challenged findings were based on sufficient evidence. See Horton v. Gem State Mut., 794 P.2d 847, 849 (Utah Ct.App.1990). Appellant bears the burden of \\\"providing us with an adequate record to preserve its arguments for review.\\\" Id. Absent such a record, we will \\\" 'presume that the judgment was supported by sufficient evidence.\\\"\\\" Id. (quoting State v. Nine Thousand One Hundred Ninety-Nine Dollars, 791 P.2d 218, 217 (Utah Ct.App.1990)).\\nT12 Although the parties submitted a set of stipulated facts to the trial court, which is in the record, the court also heard Pugh's testimony, heard opening and closing arguments by counsel, and held discussions with counsel. In fact, the court stated, with our emphasis, that it based its Findings of Fact and Conclusions of Law on \\\"the stipulated facts, and also on the evidence at trial, the applicable law, and the arguments of counsel.\\\" While there are admittedly some gaps between the stipulated facts and the facts found by the trial court, we have no choice but to assume they were filled by Pugh's testimony, documentary evidence received during his testimony, or concessions made by North American.\\n113 The only two remaining issues concern North American's contention that awarding attorney fees to Pugh was improper. First, North American argues the trial court incorrectly classified the Vehicle Service Contract between North American and Pugh as an insurance contract. We review a trial court's interpretation of an unambiguous contract under the correctness standard, giving no particular deference to the trial court's ruling. See LMV Leasing, Inc. v. Conlin, 805 P.2d 189, 192 (Utah Ct.App. 1991). Second, North American argues the award of attorney fees was improper because the court failed to make the necessary finding that it had breached the implied duty to perform in good faith,. \\\"Whether attorney fees are recoverable in an action is a question of law, which we review for correctness.\\\" AK. & R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87, \\u00b6 11, 977 P.2d 518, cert. denied, 994 P.2d 1271 (Utah 1999).\\nVEHICLE SERVICE CONTRACT AS CONTRACT OF INSURANCE\\n114 The general rule in Utah is that a party may recover attorney fees only when provided for by statute or contract. See, e.g., Turtle Management, Inc. v. Haggis Management,Inc., 645 P.2d 667, 671 (Utah 1982); Collier v. Heing, 827 P.2d 982, 983 (Utah Ct.App.1992). Our courts have carved out a narrow exception to this rule in the insurance context. See Canyon Country Store v. Bracey, 781 P.2d 414, 420 (Utah 1989); Zions First Nat'l Bank v. National Am. Title Ins. Co., 749 P.2d 651, 657 (Utah 1988) (citing Beck v. Farmers Ins. Exch., 701 P.2d 795, 802 (Utah 1985)); Collier, 827 P.2d at 984. When an insurance company breaches the implied covenant to perform its obligations in good faith, the insured can recover his or her attorney fees as consequential damages of the breach. See Collier, 827 P.2d at 984; Zions, 749 P.2d at 657. North American challenges the trial court's conclusion that the service contract was a contract of insurance.\\n$15 The question of what makes a contract a \\\"contract of insurance\\\" for purposes of this narrow exception has never been answered by Utah's appellate courts. The Utah Insurance Code defines insurance as \\\"an arrangement, contract, or plan for the transfer of a risk or risks from one or more persons to one or more other persons.\\\" Utah Code Ann. \\u00a7 81A-1-801(48)(a)@G) (Supp. 1999). Black's Law Dictionary defines insurance as, inter alia, \\\"(aln agreement by which one party for a consideration promises to pay money or its equivalent or to do an act valuable to other party upon destruction, loss, or injury of something in which other party has an interest.\\\" Black's Law Dictionary T21 (5th ed.1979).\\nI 16 Under either of these definitions, the Vehicle Service Contract issued by North American to Pugh was an insurance contract. Both parties agree that the sole purpose of the contract was to shift the risk of financial loss due to vehicle breakdown from Pugh to North American. Pugh paid North American to obtain this peace of mind: If his car should break down during the warranty period, North American would absorb the cost of any necessary repairs. It is all but conceded by North American that the contract served the exact same purpose as an insurance contract, although styled as a Vehicle Service Contract rather than as \\\"Automobile Repair Insurance.\\\"\\n117 North American primarily relies on a statutory argument in an effort to persuade us that its service contract should not be treated as an insurance contract. It ar gues that because service contracts are defined distinctly from insurance contracts in the Utah Insurance Code, they are exempted from the provisions of the Code. See Utah Code Ann. \\u00a7 31A-1-103(8)() (1999) According to North American, this means a service contract cannot be considered an insurance contract for purposes of awarding attorney fees. This argument is not persuasive.\\n18 The Utah Insurance Code was \\\"enacted primarily for the purpose of regulating insurance companies, agents, brokers, solicitors and adjusters.\\\" Farrington v. Granite State Fire Ins. Co., 120 'Utah 109, 282 P.2d 754, 756 (1951) (decided under prior version of statute). The Insurance Code does not attempt to provide an exhaustive definition of what is and what is not insurance for purposes beyond the regulatory scheme contained in the Code. On the contrary, the Code itself explicitly recognizes that there is insurance which is not encompassed by the Code.\\n119 For example, the Utah Insurance Code specifically exempts from its purview \\\"ocean marine insurance\\\" and many types of \\\"employee and labor union group or blanket insurance.\\\" Utah Code Ann. \\u00a7 814-1, 103(8)(b) & (h) (1999) (emphasis added). Of course, this does not mean that these types of insurance policies are somehow not \\\"insurance.\\\" Rather, like any other insurance, these types of policies shift risk from the insured to the insurer and meet the criteria of \\\"insurance\\\" as defined by both the Utah Insurance Code and Black's Law Dictionary. Exclusion of such types of insurance from the seope of the Code merely indicates that, for various policy reasons, the Legislature has determined they do not require comprehensive regulation under Utah's Insurance Code. The fact that a service contract is not subject to such regulation, then, is completely unrelated to the policy concerns surrounding whether or not a service contract is an insurance contract for purposes of awarding attorney fees as consequential damages and has no bearing on our determination.\\nT20 Although there is no Utah opinion which has been called to our attention that provides a definitive definition of an insurance contract, the case law does clearly set out the policy reasons for allowing attorney fees to be collected as consequential damages for a breach of the covenant of good faith implicit in such a contract. See Beck, 701 P.2d at 802. Our Supreme Court in Beck stated that insurance contracts are to be treated differently than other contracts for the simple reason that '\\n[aln insured frequently faces catastrophic consequences if funds are not available within a reasonable period of time to cover an insured loss; damages for losses well in excess of the policy limit, such as for home or business, may therefore be foreseeable and provable.\\nId.\\n4 21 The policy concerns that led the Utah Supreme Court to allow for recovery of attorney fees applies with equal vigor to North American's breach of the service contract in this case. Pugh's vehicle was stranded in Cedar City for an entire year due to North American's refusal to pay for the necessary repairs. North American's actions resulted in foreseeable and provable consequential damages to Pugh, including the attorney fees he had to incur in an ultimately successful effort to recover his due. See Zions, 749 P.2d at 657 (\\\"Attorney fees incurred by an insured in suing its insurer because of such a breach [of the implied covenant of good faith performance] would be recoverable consequential damages because they plainly are reasonably foreseeable by the parties at the time the contract is made.\\\"). We therefore affirm the trial court's conclusion that the Vehicle Service Contract between North American and Pugh was a contract of insurance for purposes of awarding attorney fees to Pugh.\\nBREACH OF IMPLIED DUTY OF GOOD FAITH PERFORMANCE\\n122 North American argues that, in any event, the award of attorney fees was erroneous because the trial court never made a specific finding that the company had breached its implied duty to perform its obligations under the insurance contract in good faith. Of course, to recover attorney fees for breach of an insurance contract, the insured must demonstrate that the insurer has breached the implied covenant to act in good faith in its performance of the insurance contract. See Collier v. Heing, 827 P.2d 982, 984 (Utah Ct.App.1992). Given this duty, the insurer will \\\"at the very least . investigate the facts to enable it to determine whether a claim is valid, will fairly evaluate the claim, and will thereafter act promptly and reasonably in rejecting or settling the claim.\\\" Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985).\\n$28 Whether the implied covenant of good faith performance was breached by North American is a fact-intensive inquiry, ordinarily left for the fact-finder. See Brown v. Weis, 871 P.2d 552, 564-65 (Utah Ct.App.1994). When the trial court is the fact-finder, as in the instant case, and the underlying historical facts as found by the court clearly show that a breach of the implied covenant has occurred, then the determination of whether the covenant has been breached is more akin to a finding of ultimate fact or a conclusion of law. Cf. id. at 565 (holding question of whether breach occurred is for the finder of fact if \\\"many of the key historical facts . are in dispute\\\"). See also Arthur L. Corbin, Corbin on Contracts, \\u00a7 654B (Supp.1993) (noting that while \\\"good faith always involves questions of fact, it often involves questions of law\\\"). Here, the findings made by the trial court concerning North American's performance leave no room for doubt that it breached the implied duty of good faith performance. For example, the court's Finding 20 states:\\nThere was substantial evidence that the transmission needed to be replaced from the first inspection by defendant's agent . but defendant refused to either accept the evidence or pursue additional investigation{.]\\nFinding 21 recites:\\nDefendant delayed unreasonably in both investigating the loss and in authorizing and paying for covered repairs when the need was established.\\nFinally, Finding 22 states:\\nEven after the repair need was established . defendant first delayed in authorizing the repairs, then defendant authorized the repairs, but refused to follow the payment procedure required by the contract and, finally, when defendant proffered payment (almost eleven months after the loss), it deducted sums without justification and in direct contravention of the Interim Agreement. *\\nThese findings by the trial court make it clear that North American did not \\\"diligently investigate the facts,\\\" \\\"fairly evaluate the claim,\\\" or \\\"act promptly and reasonably in rejecting or settling the claim\\\" in its dealings with Pugh. Even though it never expressly stated the purpose for which such findings were made and did not state its conclusions of law in terms of this exact phraseology, the court made numerous detailed findings concerning North American's lack of good faith performance. We therefore uphold the trial court's award of attorney fees to Pugh.\\nATTORNEY FEES ON APPEAL\\n124 Pugh was awarded his attorney fees and costs at trial and, as should be clear, he has prevailed on appeal. \\\"[When a party who received attorney fees below prevails on appeal, 'the party is also entitled to fees reasonably incurred on appeal.\\\"\\\" Valcarce v. Fitzgerald, 961 P.2d 805, 319 (Utah 1998) (quoting Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1198, 1197 (Utah Ct.App.1991)). Accordingly, we remand the case for the limited purpose of calculating and awarding Pugh the attorney fees and costs he has reasonably incurred on appeal.\\nCONCLUSION\\n125 In the absence of a transcript, we uphold the trial court's award of damages to Pugh for loss of the use of his vehicle. We also uphold the trial court's determination that the Vehicle Service Contract between Pugh and North American was a contract of insurance for purposes of awarding attorney fees as consequential damages. In addition, we conclude that the court made adequate findings establishing that North American breached the implied covenant of good faith performance, and we therefore uphold the court's award of attorney fees to Pugh,. We remand only for the trial court to additionally award the fees and costs Pugh reasonably incurred in bringing this appeal.\\n26 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and MICHAEL J. WILKINS, Judge.\\n. As aptly noted by Pugh's counsel, this occurrence is in direct contradiction to that portion of Murphy's Law which recognizes that major vehicle breakdowns occur right after-not right before-the warranty runs out.\\n. By the time of the trial, North American had already paid $2,467.47 in repair costs on the Thunderbird. The remaining $225.00 that the court ordered North American to pay was the amount the company had wrongfully withheld from the initial payment, including half of the tear down cost and the $60.00 freight charge.\\n. North American did make one other challenge to the trial court's award of attorney fees to Pugh. As we understand the argument, North American contends the trial court's award was improper because the court failed to make a finding that Pugh's claim for payment by North American was not at least \\\"fairly debatable.\\\"\\nThis argument is unavailing for two reasons. First, the bulk of this argument is made for the first time in the reply brief, An issue raised for the first time in the reply brief will generally not be considered on appeal. See Romrell v. Zions First Nat'l Bank, 611 P.2d 392, 395 (Utah 1980). Second, the question of whether Pugh's claim was \\\"fairly debatable\\\" is a legal conclusion to be drawn from the trial court's findings rather than a finding in its own right. See Billings v. Union Bankers Ins. Co., 918 P.2d 461, 464 (Utah 1996). The trial court found that the transmission breakdown was \\\"covered by the warranty agreement'\\\" and that North American \\\"delayed unreasonably in . paying for covered repairs when the need was established.\\\" These findings compel the legal conclusion that North American's liability was crystal clear under the warranty contract and was in no sense debatable. Failure of the trial court to make a legal conclusion, when its findings are adequate, is harmless error. See Kinkella v. Baugh, 660 P.2d 233, 236 (Utah 1983).\\n. Section 31A-1-103(3)(J) (1999) provides:\\n(3) Except as otherwise provided, this title does not apply to:\\n(}) manufacturer's warranties or service contracts paid for with separate or additional consideration.,\\n. If anything, the lack of state regulation might strengthen, rather than weaken, the case for allowing attorney fees to be awarded as consequential damages. The Insurance Department has at its disposal a variety of measures for promoting good behavior by regulated insurers. See, e.g., Utah Code Ann \\u00a7 31A-2-202 (1999) (authority to request reports from any person subject to regulation under the Insurance Code); id. \\u00a7 31A-2-203 (authority to examine records of any licensee under the Insurance Code); id. \\u00a7 31A-2-308 (Supp.1999) (authority to impose monetary penalties for violations of the Insurance Code). Awarding attorney fees as consequential damages for breach of an unregulated insurer's duties may be one of the few ways to get its attention and promote its good behavior.\\n. Our decision does not expand this exception regarding attorney fees beyond its narrow application to insurance contracts. As we previously noted, an expansive view of the exception \\\"is not reasonable because it would eviscerate the general rule; attorney fees would be awarded virtually every time a party is found in breach of its contract.\\\" Collier v. Heinz, 827 P.2d 982, 984 (Utah Ct.App.1992). This concern, while valid, does not apply in this case. Unlike Collier, which involved the breach of a settlement agreement, this case involved the breach of a contract of insurance. The sole purpose of the contract was to shift the risk of a covered vehicle breakdown from Pugh to North American. By upholding the trial court's conclusion that the service contract is an insurance contract for purposes of awarding attorney fees, we are simply following the law as laid out by Beck and its progeny. Our decision in no way endorses the expansion of this narrow exception beyond the realm of contracts fairly characterized as insurance contracts.\\n. Even if the determination that the implied covenant of good faith performance has been breached is itself properly viewed as a finding of fact, the result in this case would be the same. Although the trial court did not make a specific factual finding that North American breached the implied covenant, this specific finding is implicit in Findings 11, 12, 16, 17, 20, 21, and 22. See infra note 9 and accompanying text.\\n. In addition to the findings quoted in the text, Findings 11, 12, 16, and 17 also address the lack of timely and fair performance by North American and further demonstrate that it did breach the implied covenant of good faith performance.\"}"

utah/11582153.json

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+"{\"id\": \"11582153\", \"name\": \"Steven COLLINS, Plaintiff and Appellant, v. Merrill L. WILSON, M.D., and LDS Hospital, a division of Intermountain Health Care, Inc., Defendants and Appellee\", \"name_abbreviation\": \"Collins v. Wilson\", \"decision_date\": \"1999-06-04\", \"docket_number\": \"No. 970257\", \"first_page\": \"960\", \"last_page\": \"967\", \"citations\": \"984 P.2d 960\", \"volume\": \"984\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T16:59:12.804513+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u00b6 27 Associate Chief Justice DURHAM, Justice ZIMMERMAN, and Justice RUSSON concur in Chief Justice HOWE\\u2019s opinion.\", \"parties\": \"Steven COLLINS, Plaintiff and Appellant, v. Merrill L. WILSON, M.D., and LDS Hospital, a division of Intermountain Health Care, Inc., Defendants and Appellee.\", \"head_matter\": \"1999 UT 56\\nSteven COLLINS, Plaintiff and Appellant, v. Merrill L. WILSON, M.D., and LDS Hospital, a division of Intermountain Health Care, Inc., Defendants and Appellee.\\nNo. 970257.\\nSupreme Court of Utah.\\nJune 4, 1999.\\nJohn L. Black, Sr., John L. Black, Jr., Salt Lake City, for plaintiff\\nDavid H. Epperson, Jaryl L. Rencher, Stephen W. Owens, Salt Lake City, for Merrill L. Wilson, M.D.\", \"word_count\": \"4151\", \"char_count\": \"26107\", \"text\": \"HOWE, Chief Justice:\\n\\u00b6 1 Plaintiff Steven Collins appeals from a judgment entered pursuant to a jury verdict against him and in favor of defendant Merrill L. Wilson, M.D., in a medical malpractice action arising out of an abdominal surgery.\\nBACKGROUND\\n\\u00b6 2 Collins initially sought treatment from Dr. Wilson, a general surgeon, on February 2, 1988, on the referral of an ear, nose, and throat specialist for the treatment and eventual surgical removal of enlarged lymph nodes from Collins' neck. At that time, as part of a comprehensive medical history and physical examination, Collins reported suffering frequent recurrent nausea and vomiting. Collins' digestive complaints steadily worsened; in September of 1988, Dr. Wilson referred Collins to Dr. John H. Bowers, a gastroenterologist. Dr. Bowers performed an esophagogastroduodenoscopy (\\\"EGD\\\") on Collins; during this EGD, Dr. Bowers found numerous ulcerations and erosions in Collins' stomach lining which Dr. Bowers attributed to acid secretion.\\n\\u00b6 3 As a result of these EGD findings, and a history suggesting Collins had a possible genetic predisposition to ulcer disease, Dr. Bowers followed a conservative treatment plan using an acid blocker and avoiding substances likely to irritate the stomach, such as aspirin, ibuprofen, and caffeine. Dr. Bowers also advised Collins to quit smoking. This treatment plan failed to produce favorable results and Collins' digestive problems became more serious, including increased vomiting, vomiting blood-streaked material, heartburn, and nocturnal dyspnea. After an endoscopic procedure in March 1989, Dr. Bowers recommended that Collins return to Dr. Wilson for a hiatal hernia surgical repair, and a vagotomy.\\n\\u00b6 4 Prior to his surgery on May 11, 1989, Collins signed an \\\"authorization and consent\\\" form. The form stated that Dr. Wilson planned to perform a \\\"repair of hiatus hernia, antrectomy, [and] vagotomy\\\"; by signing the form, Collins also consented to \\\"additional or different procedures\\\" as required in Dr. Wilson's professional judgment by any unforeseen conditions. During the surgery at LDS Hospital in Salt Lake City, Dr. Wilson determined that the hiatal hernia surgery was not necessary, but that a truncal vagotomy and antrectomy, as predicted, were necessary and performed the procedures accordingly. Following the surgery, Dr. Wilson reported to Mrs. Collins \\\"that everything went well [with] no complications.\\\" He further informed her that he \\\"found no evidence of [a hiatal hernia], and therefore . did not need to do it, but that [he] went ahead and did the antrectomy and vagotomy as previously discussed.\\\"\\n\\u00b6 5 Post-operatively, Collins experienced multiple serious and severe complications, including abdominal abscesses and additional digestive problems. For eighteen months following the surgery, from August 1989 to March 1991, Dr. Wilson was not actively involved in treating Collins; his assistance was limited to authorizing prescription refills. During this period, Collins instead saw two gastroenterology specialists for treatment of his continuing digestive problems. These specialists, Dr. William Hutson and Dr. Terry Box, diagnosed Collins with motility problems, specifically chronic idiopathic intestinal pseudo-obstruction of the neurogenic type. In various consultations in 1989 and 1990, both doctors discussed with Collins the possible relationship between his continuing-problems and Dr. Wilson's surgery. For example, Collins contacted Dr. Hutson on or shortly after September 25, 1990, and asked if \\\"something [was] done wrong during [Dr. Wilson's] surgery?\\\" to which Dr. Hutson replied that \\\"the surgery probably had something to do with his whole condition.\\\"\\n\\u00b66 On March 24, 1993, after discussing the case with attorneys and looking over medical records from his surgery and subsequent care, Collins filed a notice of intent to commence a malpractice action against Dr. Wilson and LDS Hospital. In his notice of intent, Collins asserted several instances of malpractice. Specifically, he alleged that Dr. Wilson and the staff of LDS Hospital (1) performed surgical procedures (the antrecto-my and vagotomy) to which Collins had not given an informed consent; (2) performed the allegedly unauthorized procedures in a negligent manner; (3) falsified Collins' consent form post-operatively to make it appear he had consented to the procedures; and (4) misrepresented the necessary treatment and the treatments they rendered.\\n\\u00b6 7 On September 16,1994, following Collins' deposition, both Dr. Wilson and LDS Hospital moved for summary judgment, asserting that Collins had failed to comply with section 78-14-4 of the Utah Code, which dictates in pertinent part:\\nNo malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence .\\nUtah Code Ann. \\u00a7 78-14-4(1) (1996). The district court denied both defendants' motions. Dr. Wilson subsequently moved for a bifurcated trial pursuant to Utah Code Ann. \\u00a7 78-12-47 (1996).\\n\\u00b68 The trial court granted the motion, and accordingly, a three-day jury trial on the applicability of the statute of limitations was held on July 25-27,1995, resulting in a unanimous verdict for Dr. Wilson and LDS Hospital. The jury found that Collins discovered or should have discovered his injury prior to March 24, 1991 \\u2014 more than two years prior to filing a notice of intent to commence the malpractice action. Following the verdict, Collins moved for a judgment notwithstanding the verdict \\u2014 citing a \\\"lack of substantial evidence to support the jury verdict\\\" \\u2014 or, alternatively, for a new trial. The court rejected the motion for judgment notwithstanding the verdict (\\\"j.n.o.v.\\\") and denied Collins' motion for a new trial as to LDS Hospital. However, the court granted a new trial as to Dr. Wilson on the ground that Collins had discovered new evidence.\\n\\u00b6 9 The second trial on the statute of limitations issue began on February 24,1997. Immediately prior to trial, Collins changed his theory of the case, conceding that it was possible the procedures performed were properly listed on the consent form, thereby doing away with his \\\"fraudulent alteration\\\" allegation. Following four days of trial, the second jury returned a verdict for Dr. Wilson, finding that Collins discovered or should have discovered the injury prior to March 24, 1991. Collins again moved for j.n.o.v., once again arguing the \\\"fact that there is an absence of any substantial evidence to support the Jury Verdict and Judgment . that [he] had discovered or should have discovered his legal injury prior to March 24, 1991.\\\" The district court denied this second motion for j.n.o.v. Collins appeals from the judgment in favor of Dr. Wilson, contending that the trial court erred in (1) refusing to instruct the jury on the \\\"continuous treatment\\\" rule, (2) denying Collins' motion for judgment notwithstanding the verdict, and (3) refusing to use a special verdict form.\\nANALYSIS\\nI. TRIAL COURT'S REFUSAL TO GIVE PROPOSED JURY INSTRUCTION\\n\\u00b6 10 Collins first contends that the trial court erred in its refusal to give his proposed jury instruction addressing the \\\"continuous treatment\\\" rule. The proposed instruction reads as follows:\\nIf the treatment of the physician is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute of limitations does not commence running until treatment by the doctor has terminated, unless during treatment the plaintiff learns or should have learned of the malpractice, in which case the statute runs from the time of discovery.\\nSee also 1 David W. Louisell & Harold Williams, Medical Malpractice \\u00b6 13.02(3) at 13-43 to -45 (defining rule in similar terms). In sum, this rule would allow the statute of limitations to begin running only after the termination of treatment by the doctor for the particular disease or condition involved. If the patient learns of the negligence during the time of treatment, however, the discovery rule applies and the statute of limitations begins to run accordingly. Under this rule, the applicable statute of limitations is tolled in part because the trust inherent in a doctor-patient relationship may inhibit a patient's ability to discover acts that amount to malpractice. See Haberle v. Buchwald, 480 N.W.2d 351, 354 (Minn.Ct.App.1992) (finding need for continuous treatment rule because trust-based relationship may inhibit patient's ability to discover malpractice); Miller v. United States, 932 F.2d 301, 304 (4th Cir. 1991) (holding that discovery rule may deprive patient of right to place trust and confidence in physician).\\n\\u00b6 11 In his brief, Collins has correctly noted that Utah courts have not yet considered the continuous treatment rule. The time may come when a Utah appellate court must examine this rule in depth. However, we need not do so today.\\n\\u00b6 12 Even assuming that we recognized the continuous treatment rule, the facts of this case would not satisfy the rule's requirements. The post-surgery interaction between Dr. Wilson and Collins was minimal. For an eighteen-month period, Dr. Wilson was not actively involved in treating Collins except to authorize prescription refills. Merely continuing to authorize prescription refills is in no way indicative of a doctor-patient relationship that suppresses a potential plaintiffs opportunity to become aware of the alleged malpractice. That policy justification for a continuous treatment rule is absent here.\\n\\u00b6 13 During the eighteen-month period, Collins instead consulted two gastroenterolo-gy specialists for treatment of his continuing digestive problems. It was these doctors, Drs. Hutson and Box, to whom Collins expressed his dissatisfaction with the results of Dr. Wilson's surgery. Furthermore, it was these doctors who indicated that the surgery may have played some part in Collins' continuing problems. Based on the foregoing, we reject Collins' first assignment of error.\\nII. DENIAL OF MOTION FOR J.N.O.V.,\\n\\u00b6 14 Collins next assigns as error the trial court's denial of his motion for j.n.o.v., arguing that ,the evidence presented to the jury was insufficient to sustain its verdict. A trial court is justified in granting a motion for j.n.o.v. only when the court concludes, that there is no competent evidence to support the verdict after examining the evidence and all reasonable inferences therefrom in a light most favorable to the nonmoving party. See Gustaveson v. Gregg, 655 P.2d 693, 695 (Utah 1982). When, as here, a party challenges a court's denial of a j.n.o.v. motion with an insufficiency of the evidence argument, we undertake an analysis analogo\\u00fas to the trial court's, and '\\\"reverse only if, viewing the evidence in the light most favorable to the prevailing party, we conclude that the evidence is insufficient to support the verdict.' \\\" Seale v. Gowans, 923 P.2d 1361, 1363 (Utah 1996) (quoting Heslop v. Bank of Utah, 839 P.2d 828, 839 (Utah 1992)) (citations omitted). In a sufficiency determination, an appellate court accepts as true any testimony \\u2014 and all reasonable inferences derived therefrom \\u2014 that tends to prove the prevailing party's case and disregards any conflicting evidence or evidence that tends to disprove the prevailing party's case. See Turner v. General Adjustment Bureau, Inc,, 832 P.2d 62, 65 (Utah Ct.App.1992).\\n\\u00b6 15 We turn now to the evidence at hand. In late 1989, Collins contacted Dr. William Hutson, a gastroenterologist. Dr. Hutson conducted numerous tests to identify Collins' problem. In discussing his diagnosis, Dr. Hutson testified as follows:\\nA. Clinically it suggested one of two things, in all likelihood. One is that Mr. Collins may have had an abnormal result from the surgery that was performed on him, the initial surgery performed in 1989; or the other alternative is that Mr. Collins already had an underlying motility disorder . that then may have been unmasked by a surgery, which is not an uncommon condition.\\nQ. Had you ever discussed these two possibilities as you've just expressed it [sic] to us, as best you can recall, with either of the Collinses here, either Mr. or Mrs. Collins?\\nA. Yes.\\nQ. And do you recall when you did that?\\nA. I mean, it must have been about the same time in November, December of 1989. I recall \\u2014 the first visit I recall with them was in the office of the initial visit in October of 1989. I think I gave them my opinion as to what I thought was probably going on at this time.\\nIn a discussion with Dr. Hutson nearly a year later, the Collinses asked if \\\"something was done wrong during that surgery,\\\" referring to the truncal vagotomy and antrectomy Dr. Wilson performed. Again, Dr. Hutson replied that \\\"the surgery probably had something to do with [Collins'] whole condition, because that's when he really got sick.\\\" Hutson also testified that he had explained on at least one occasion that Collins' condition was incurable \\\"no matter what the cause [of his condition], whether surgery was largely responsible or whether it unmasked the condition.\\\" Collins supported this testimony during his cross-examination:\\nQ. In fact, Mr. Collins, in December of 1989, isn't it true that Dr. Hutson told you that your problems either were an abnormal result from the vagotomy and an-trectomy surgery,' or you already had an underlying motility disorder that was unmasked by the surgery?\\nA. Yeah, I heard that.\\nQ. So you're not suggesting that Dr. Hutson is not telling the truth about conversations he had with you about those conditions and about being questioned about Dr. Wilson's operation and procedure?\\nA. No.\\nOn cross-examination, Mrs. Collins originally contradicted Dr. Hutson's testimony. However, upon counsel's refreshing her memory with the transcript of Dr. Hudson's testimony, Mrs. Collins admitted that his testimony concerning their discussions was correct.\\nQ. Did Dr. Hutson tell you or your husband in your presence that the surgery probably had something to do with his whole condition, because that's when he really got sick?\\nA. Yes.\\nQ. You also recall Dr. Hutson telling you and your husband in a December, 1989, conversation that your husband's problems were \\\"abnormal results\\\" from the vagotomy and antrectomy surgery?\\nA. That he specifically said he had an abnormal result from the antrectomy and vagotomy?\\nQ. Yes.\\nA. I don't recall those words specifically. We did discuss having a poor result.\\nQ. From Dr. Wilson's surgery, correct?\\nA. From surgery.\\nQ. That Dr. Wilson performed, correct?\\nA. Yes.\\n\\u00b6 16 Similarly, Dr. Terry Box testified, both on direct examination and on cross-examination, that he assumed Collins' problems were \\\"related to the stress of the surgery\\\" and that he was \\\"sure that we [he and Collins] discussed the possible relationship and possible cause and effect\\\" between the vagotomy/antrectomy surgery and Collins' motility problems. When asked what possible causes would have been discussed, Dr. Box replied: \\\"An underlying motility disturbance that was brought out by the vagotomy [and] the possibility that the vagotomy in and of itself is the primary cause of this problem. Those are the two most likely possibilities of it.\\\" At first, Collins contradicted this testimony under cross-examination, but then could not completely rule out that Dr. Box's having pointed out the connection between the original surgery and the continuing motility difficulties:\\nQ. Would you agree that Dr. Box discussed with you, by August of 1989, the possible cause and effect between the va-gotomy and the antrectomy surgery, and the problems that you were experiencing?\\nA. He never said it was the vagotomy and the antrectomy.\\nQ. So if he testified to the contrary, then he would not be telling the truth, are you suggesting?\\nA. I can't remember. He might have told my wife, because every time he talked when I got out of the endoscopy, I was under anesthetic.\\nUnlike her husband, however, Mrs. Collins supported Dr. Box's testimony. When Dr. Wilson's counsel asked her, \\\"Do you disagree with Dr. Box that before the'end of 1990, he told you and your husband that the vagotomy surgery was a possible cause of your husband's continuing problems?\\\" she replied, \\\"I don't recall him specifically saying it was because of the vagotomy, but we talked about that it ivould be a poor result or a complicar tion of the surgery, that we weren't sure why this complication had happened.\\\" (Emphasis added.)\\n\\u00b6 17 While it is true that both specialists also testified that they did not ever specifically tell the Collinses that Dr. Wilson was negligent or performed the wrong surgery, we must accept as true the testimony presented and all that this testimony implies; namely, that Collins' treating physicians provided him with information suggesting that Dr. Wilson's surgery may have caused or aggravated his continuing motility problems. Even the testimony that the surgery may have uncovered or exacerbated an existing ailment should have been enough to raise the specter of causation in Collins' mind.\\n\\u00b6 18 By his own admission and the admission of his wife, Collins was aware \\u2014 or should have been aware \\u2014 of a possible connection between Dr. Wilson's surgery and Collins' continuing motility problems, whether because of the specialists' testimony, medical records, or some other reason. On cross-examination, Collins admitted they had suspicions over two years before they commenced this lawsuit that something had gone wrong in Dr. Wilson's surgery. We note that when Dr. Wilson's attorney asked, \\\"From September of 1990 when you were questioning, along with your wife, if something was done wrong with that surgery, why didn't you do anything about it then?\\\" Collins did not deny knowing or suspecting. Instead, he simply responded, \\\"Because I wasn't blaming nobody [sic].\\\" In addition, Collins began suffering from the severe complications soon after Dr. Wilson's surgery. These complications forced a seven-week hospital stay, as opposed to the three- to five-day stay Collins expected. In fact, many of Collins' expectations were dashed soon after the surgery; he admits that the lack of timely recovery, his inability to digest food normally, his extended hospital stay, and his continuing difficulties and medical problems were all contrary to his expectations.\\n\\u00b6 19 We have long held that the two-year statute of limitations period commences to run only when the injured person knew or should have known of an injury and that the injury was caused by a negligent act. See Seale, 923 P.2d at 1363; Foil v. Ballinger, 601 P.2d 144, 147-48 (Utah 1979). Furthermore, \\\"[discovery of legal injury, therefore, encompasses both awareness of physical injury and knowledge that the injury is or may be attributable to negligence.\\\" Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1184 (Utah 1989) (emphasis added). There is evidence that Collins had the requisite \\\"awareness of physical injury\\\" almost immediately following the initial surgery. It is reasonable for a jury to assume that as time progressed and his poor condition continued, Collins' awareness grew as well.\\n\\u00b620 Because the Collinses' discussions with Drs. Hutson and Box took place between 1989 and 1990 \\u2014 over two years prior to the filing of this lawsuit \\u2014 and because these discussions involved, in part, the possible connections between the original vago-tomy/antrectomy surgery and the post-operative motility difficulties, and because the aftermath of the surgery was so vastly different from Collins' expectations, Collins reasonably should have had knowledge that his injury \\\"may be attributable to negligence.\\\"\\n\\u00b6 21 Thus, we conclude that the jury had evidence before it to find that Collins \\\"discovered or should have discovered\\\" the injury prior to March 24, 1991. Accordingly, we affirm the trial court's denial of Collins' j.n.o.v. motion.\\nIII. TRIAL COURT'S REFUSAL TO USE A SPECIAL VERDICT FORM\\n\\u00b622 Collins' third assignment of error is the trial court's refusal -to employ his proposed special verdict form. Whether a trial court correctly refused to give a special verdict form is a question of law. See State v. Carter, 888 P.2d 629, 655 (Utah 1995). However, a court has considerable discretion in accepting proposed special verdict forms. See, e.g., Canyon Country Store v. Bracey, 781 P.2d 414, 420 (Utah 1989).\\n\\u00b6 23 The form Collins proposed consisted of two questions:\\n1. Based upon a preponderance of the evidence, did Plaintiff discover, or should he have discovered, his legal injury prior to March 24,1991.\\n2. State the date, or describe the event, upon which you determine that Plaintiff discovered or should have discovered his legal injury.\\nInstead, the trial court presented the jury with a special verdict form Dr. Wilson proposed, which was substantively similar to question 1 of Collins' proposed form: \\\"Based upon a preponderance of the evidence as against Dr. Wilson, did plaintiff discover or should he have discovered prior to March 24, 1991, his legal injury as the phrase 'discovery of injury' is defined in these instructions?\\\"\\n\\u00b6 24 Collins asserts that the jury was required under Utah law to specify exactly what event they determined should have placed him on notice of his legal injury. However, this is not the legal test accepted in Utah. The statute of limitations does not require a plaintiff to receive full enlightenment concerning the cause and date of his legal injury. Instead, it is enough that the jury determined, in Collins' own proposed language, \\\"[b]ased upon a preponderance of the evidence,\\\" that Collins discovered or should have discovered \\\"his legal injury prior to March 24, 1991.\\\" Collins argues that, absent the jury's identifying a specific date of discovery, the trial court and the appellate courts are left \\\"to guess what the jury was thinking.\\\" However, in this case the evidence is sufficiently straightforward to eliminate such guesswork.\\n\\u00b625 The jury did not experience some mystical epiphany in reaching their verdict; rather, their verdict was based upon the totality of the evidence, following four days of testimony and evidence, including evidence of numerous conversations and letters between the Collinses and their doctors discussing the possible connection between the surgery and Collins' motility problems. We therefore cannot say that the trial court abused its discretion in refusing to use Collins' proposed verdict form.\\nCONCLUSION\\n\\u00b6 26 In view of the foregoing analysis, we reject each of Collins' three assignments of eiTor and uphold the jury's verdict barring Collins' allegations under the statute of limitations governing medical malpractice. The judgment of the trial court is hereby affirmed.\\n\\u00b6 27 Associate Chief Justice DURHAM, Justice ZIMMERMAN, and Justice RUSSON concur in Chief Justice HOWE's opinion.\\n\\u00b6 28 Justice STEWART concurs in the result.\\n. An EGD is a visual examination of the esophagus, stomach, and duodenum through the use of an endoscope introduced through the mouth of the patient.\\n. Nocturnal dyspnea is \\\"[l]abored breathing or shortness of breath that gets progressively worse during the day and reaches a climax at night.\\\" 4 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder N-l 14 (1998).\\n.A vagotomy is \\\"[t]he surgical cutting of the vagus nerve or nerves.\\\" 6 J.E. Schmidt, supra note 2, at V-9. The vagus nerve \\\"increases the secretion of the [stomach] glands and the contractions of the muscular walls of the digestive tract, including the stomach.\\\" Id. at V-10.\\n. An antrectomy involves \\\"[t]he surgical removal of the antrum of the stomach (the part near the outlet), in the treatment of . ulcer.\\\" 1 J.E. Schmidt, supra note 2, at A-456 to -457.\\n. A truncal vagotomy is \\\"[t]he cutting of the two main trunks of the abdominal vagus nerves.\\\" 6 J.E. Schmidt, supra note 2, at T-265.\\n. Gastric motility is \\\"[l]he movements of the walls of the stomach which aid in mixing the food and in expelling it from the stomach into the intestine.\\\" 4 J.E. Schmidt, supra note 2, at G-26.\\n.This is \\\"[a] condition of intestinal obstruction which is not mechanical but is the result of impaired peristalsis which normally moves the intestinal content forward.\\\" 2 J.E. Schmidt, supra note 2, at 21 (Supp. Feb. 1998). \\\"Neurogenic\\\" involves a dysfunction of the nerves.\\n. Utah Code Ann. \\u00a7 78-12-47 states in pertinent part:\\nIn any action against a physician and surgeon . , or a licensed hospital, . for professional negligence ., if the responsive pleading of the defendant pleads that the action is barred by the statute of limitations, and if either party so moves the court, the issue raised thereby may be tried separately and before any other issues in the case are tried.\\n. Collins also notes, and we agree, that Utah courts have addressed a similar doctrine; namely, the \\\"continuous negligent treatment\\\" rule. See, e.g., Petelerv. Robison, 81 Utah 535, 17 P.2d 244 (1932). The continuous negligent treatment rule addresses a course of treatment that is allegedly negligent. The entire negligent course of treatment constitutes. a single cause of action and, as such, the statute of limitations would not begin to run until the' completion of the act giving rise to the cause of action, i.e., the negligent course of treatment. Such is not the case here, \\\"where the only negligence alleged was the negligent and unskillful operation . and nothing more.\\\" Peteler, 81 Utah at 549, 17 P.2d at 249.\"}"

utah/11682197.json

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+"{\"id\": \"11682197\", \"name\": \"STATE of Utah, Plaintiff and Appellee, v. Douglas Robert PAYNE, Defendant and Appellant\", \"name_abbreviation\": \"State v. Payne\", \"decision_date\": \"1998-08-06\", \"docket_number\": \"No. 971207-CA\", \"first_page\": \"327\", \"last_page\": \"335\", \"citations\": \"964 P.2d 327\", \"volume\": \"964\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:04:49.072060+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DAVIS, WILKINS and ORME, JJ.\", \"parties\": \"STATE of Utah, Plaintiff and Appellee, v. Douglas Robert PAYNE, Defendant and Appellant.\", \"head_matter\": \"STATE of Utah, Plaintiff and Appellee, v. Douglas Robert PAYNE, Defendant and Appellant.\\nNo. 971207-CA.\\nCourt of Appeals of Utah.\\nAug. 6, 1998.\\nCatherine L. Begic, Susanne Gustin-Fur-gis, John O\\u2019Connell, Jr., Salt Lake Legal Defender Association, Salt Lake City, for Defendant and Appellant.\\nJan Graham, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appel-lee.\\nBefore DAVIS, WILKINS and ORME, JJ.\", \"word_count\": \"4035\", \"char_count\": \"25293\", \"text\": \"OPINION\\nORME, Judge:\\nDouglas Robert Payne appeals his conviction for lewdness involving a child, a class A misdemeanor, in violation of Utah Code Ann. \\u00a7 76-9-702.5 (1995). His primary challenge concerns the trial court's refusal to instruct the jury on lesser included offenses. Because the trial court's only errors were harmless, we affirm.\\nFACTS\\nPayne appeals from a jury verdict. Accordingly, \\\"we recite the facts in a light most favorable to the jury's verdict, 'but present conflicting evidence to the extent necessary to clarify the issues raised on appeal.' \\\" State v. Vigil, 922 P.2d 15, 18 (Utah Ct.App.1996) (quoting State v. Winward, 909 P.2d 909, 910 (Utah Ct.App.1995)).\\nBefore July 15, 1994, Payne had been a close family friend of the six-year-old victim and her mother. On that evening, Payne attended an informal gathering hosted by friends of Payne and the victim's mother. Also present at this gathering were the victim, her mother, and the hosts' children, including their twelve-year-old son. During the evening, Payne, the twelve-year-old, and the victim were alone in the living room, when Payne began to tickle and wrestle with the victim. Payne then held the victim upside down by her feet with his left hand. While watching this, the twelve-year-old saw Payne rub the victim's genital area, over her clothing, for four to five seconds. Unsure what to do, he went to his bedroom where he stayed until Payne left.\\nAfter the twelve-year-old left the living room, Payne and the victim sat beside each other on the couch to watch a movie. While sitting next to the victim, Payne reached underneath her shorts and underwear and, using two fingers, fondled her vagina for four to five minutes. The victim testified that it stung when Payne'did this.\\nAfter Payne touched her, the victim went to the dining room and told her mother that she was tired and wanted to go home. Once they were outside the house, the victim told her mother what Payne had done. Shortly thereafter, Payne approached the victim and her mother, asking them if they wanted a ride home. The mother confronted Payne with what the victim had told her, and Payne denied any wrongdoing and drove off. Minutes after Payne left, the twelve-year-old told his mother what he had witnessed Payne doing to the victim.\\nWhen she and the victim arrived at their home, the victim's mother called a female friend, who then came over. Later that evening, the mother called the police. One of the responding police officers was Officer Karen Gilbert, who drove the victim, her mother, and her mother's friend to Primary Children's Medical Center. At the hospital, Gilbert took the victim to a private room and asked the mother and her friend to leave them alone to talk. When they were alone, Gilbert asked the victim why she was at the hospital and what had happened to her. In response, the victim recounted what Payne had done. To confirm her understanding of the victim's account, Gilbert repeated it, allowing the victim to make any corrections. Although she later prepared a written report of this interview, Gilbert did not record the interview. Gilbert took a few notes during the interview, writing them on her hand or arm. Immediately after Gilbert finished her interview, Dr. Douglas Nelson examined the victim. The victim complained of soreness around her genital area and told Nelson that someone had touched her private parts. Nelson's examination revealed that the victim's genital area was reddened, irritated, and painful to the touch. At trial, Nelson testified that these symptoms were on an area of the genitalia that is easily injured. He acknowledged that such an injury could be caused by physical activities in which straddling occurs.\\nOn July 26, 1994, Detective Carl Voyles interviewed the victim to verify Gilbert's interview report and the pertinent portions of the victim's medical records. Voyles conducted the interview at the victim's home, in the presence of others, and did not record the interview. At trial, Voyles testified about the general course of his investigation but did not testify as to what the victim told him during the interview.\\nOn August 4, 1994, the State charged Payne with sexual abuse of a child, a second degree felony, in violation of Utah Code Ann. \\u00a7 76-5-404.1 (Supp.1997). Before trial, Payne notified the prosecution that he would be calling Dr. Vickie R. Gregory, a forensic neuropsychologist, to offer expert testimony that Gilbert and Voyles used improper techniques while interviewing the victim.\\nAt a hearing held during trial, but outside the jury's presence, the prosecution asked that the trial court exclude Gregory's testimony. The prosecution argued that Gregory's testimony was irrelevant, was of questionable evidentiary value, and impermissibly commented on the victim's veracity. In response, Payne called Gregory to proffer her testimony. Gregory testified that, when interviewing children who might be victims of sexual abuse, an interviewer should make an audio or video recording of the interview, and assess the child's mental ability, knowledge of sexuality, and candor. Gregory also testified that an interviewer should avoid leading questions and conduct the interview alone with the child to avoid parental cues. On cross-examination, Gregory conceded that she had not directly evaluated the victim, and that she based her opinions on her general knowledge and her observations at trial.\\nThe trial court granted the prosecution's motion to exclude Gregory's testimony. The court based this decision on its findings that the testimony (1) would not be helpful as required by Rule 702 of the Utah Rules of Evidence, (2) lacked the scientific basis.required by Utah case law, and (3) would be more prejudicial than probative and thus inadmissible under Rule 403 of the Utah Rules of Evidence.\\nAt trial, Payne's counsel cross-examined both Gilbert and Voyles about the shortcomings of their interviews with the victim. In particular, Payne's counsel scrutinized Gilbert's failure to take written notes of her interview, other than on her hand or arm, and her failure to follow any specific procedures for interviewing child witnesses, such as ascertaining the victim's intelligence and candor. Payne's counsel also questioned Voyles about his allowing others to be present during his interview with the victim. Finally, Payne's counsel questioned both Gilbert and Voyles regarding their failure to record their interviews, emphasizing that this failure prevented a determination of whether, and in what respects, the interviews were properly conducted.\\nPayne again sought to elicit Gregory's testimony in rebuttal to Gilbert's testimony regarding her interview with the victim and to Nelson's testimony regarding statements the victim made during his examination. The trial court denied Payne's requests, standing by its original decision to exclude Gregory's testimony. Payne called no other witnesses.\\nIn closing argument, Payne's counsel recounted the shortcomings of Voyles's and Gilbert's interviews with the victim, denouncing both their failure to assess the victim's intelligence and candor and their failure to record the interview. These foibles, Payne's counsel urged, created sufficient reasonable doubt of Payne's guilt. Also creating reasonable doubt, Payne's counsel argued, was Nelson's testimony that the victim's contusions were in an easily injured location and sustained during a time when Payne and the victim had been roughhousing. Payne's counsel asserted that inadvertent contact during this vigorous play session could easily have caused these injuries.\\nThe trial court instructed the jury that it could find Payne guilty or not guilty of sexual abuse of a child, or the lesser included offense of lewdness involving a child. Payne objected, arguing that the crimes of gross lewdness and child abuse also qualify as lesser included offenses of sexual abuse of a child, and that the court should additionally instruct the jury on these offenses. The court declined to instruct the jury on gross lewdness or child abuse. The jury convicted Payne of lewdness involving a child.\\nISSUES ON APPEAL\\nPayne appeals his conviction, arguing the trial court erroneously excluded Gregory's testimony under Rules 403 and 702 of the Utah Rules of Evidence. Payne also contends the trial court erroneously failed to instruct the jury on the offenses of gross lewdness and child abuse.\\nSTANDARDS OF REVIEW\\n\\\"The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard.\\\" State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993). In contrast, \\u2022 \\\"whenever a defendant requests a jury instruction on a lesser included offense,\\\" specific legal standards must be followed and \\\"the trial court has no discretion in the matter.\\\" State v. Simpson, 904 P.2d 709, 711 (Utah Ct.App.1995). Accordingly, \\\"[t]he refusal to give a requested jury instruction on a claimed lesser included offense is a legal determination, which we review for correctness,\\\" without deference to the trial court. Id.\\nEXCLUSION OF GREGORY'S TESTIMONY\\nTo be admissible, expert testimony must \\\"assist the trier of fact to understand the evidence or to determine a fact in issue.\\\" Utah R. Evid. 702. Under this rule, no expert testimony is required \\\"[i]f the matter at issue in the case is one which . is within the knowledge of the average trier of fact, [or] 'if the other evidence is such as to present the issues in terms which the jury can be expected to understand.'\\\" Salt Lake City Sch. Dist. v. Galbraith & Green, Inc., 740 P.2d 284, 289 (Utah Ct.App.1987) (quoting Hall v. State, 290 Or. 19, 619 P.2d 256, 261 (1980)).\\nGregory's testimony concerned the preferability of a recorded interview that accommodates the child-interviewee's mental ability, sexual knowledge, and candor, and that is free from leading questions and parental cues. The jury could reasonably be expected to appreciate these concerns, which were adequately called to its attention through cross-examination and closing-argument, without the assistance of expert testimony. Under these circumstances, and especially because the court heard the testimony Gregory proposed to offer before making its decision, we cannot say the trial court abused its discretion in excluding Gregory's testimony as unhelpful under Rule 702.\\nREFUSAL OF LESSER INCLUDED ' OFFENSE INSTRUCTIONS\\nIn State v. Baker, 671 P.2d 152 (Utah 1983), the Utah Supreme Court formulated a two-part \\\"evidence-based\\\" analysis for determining whether to grant a defendant's request for jury instructions on a claimed lesser included offense. First, the trial court must determine whether the offense for which the defendant seeks instruction is a lesser included offense of the crime charged. See id. at 158-59. See also Utah Code Ann. .\\u00a7 76-l-402(3)(a) (1995). Second, the trial court must determine whether a rational basis exists on which the jury could acquit the defendant of the offense charged and convict of the lesser offense. See Baker, 671 P.2d at 159. See also Utah Code Ann. \\u00a7 76-1-402(4) (1995). Payne argues that, under the two-part Baker analysis, he was entitled to jury instructions on both gross lewdness and child abuse.\\nA. Gross Lewdness\\nRegarding gross lewdness, Payne contends that both prongs of the Baker test were satisfied. The State agrees, but asserts the trial court was not required to instruct the jury on gross lewdness because the court's, lewdness-involving-a-child instruction gave Payne the full benefit of reasonable doubt and applied more specifically to his conduct. The State is essentially correct.\\nA person is guilty of lewdness involving a child if the person commits certain enumerated acts, not applicable here, or \\\"performs any other act of gross lewdness, under circumstances which he or she should know will likely cause affront or alarm, to, on, or in the presence of another who is under 14 years of age.\\\" Utah Code Ann. \\u00a7 76-9-702.5(l)(f) (1995). A person is guilty of gross lewdness if the person \\\"intentionally touches . any part of the genitals of another person . and the actor's conduct is under circumstances the person knows or should know will likely cause affront or alarm to the person touched.\\\" Id. \\u00a7 76-9-702(3) (Supp.1997).\\nFor the purposes of this case, lewdness involving a child under section 76-9-702.5(l)(f) and gross lewdness under section 76-9-702(3) concern the same mens rea and conduct. The only difference between the two offenses is the victim's age \\u2014 section 76-9-702(3) prohibits touching any person's genitals and section 76-9-702.5(1) prohibits touching the genitals of a child under fourteen. Consequently, faced with both offenses and a juvenile victim, and absent a bona fide dispute as to whether the victim was under fourteen, a jury would have no rational basis to convict Payne of gross lewdness and acquit of lewdness involving a child. Thus, having already instructed the jury on lewdness involving a child, the trial court did not err in refusing to instruct the jury on gross lewdness.\\nB. Child Abuse\\nIn comparing the elements of an allegedly included offense and the charged offense under the first Baker prong, \\\"our supreme court has recognized that 'some crimes have multiple variations, so that a greater-lesser relationship exists between some variations of these crimes, but not between others.' \\\" State v. Simpson, 904 P.2d 709, 713 (Utah Ct.App.1995) (quoting State v. Hill, 674 P.2d 96, 97 (Utah 1983)).\\n\\\"A person commits sexual abuse of a child if . the actor touches the . genitalia of any child . with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person....\\\" Utah Code Ann. \\u00a7 76-5-404.1(1) (Supp.1997). A person commits child abuse if he or she intentionally, recklessly, or negligently inflicts upon a \\u2022 child \\\"a bruise or other contusion of the skin . [or] any other condition which imperils the child's health or welfare.\\\" Id. \\u00a7 76-5-109(l)(c) (i), (iv). See id. \\u00a7 76-5-109(3). Although there are variations in the elements of these two offenses, a greater-lesser relationship clearly exists between some of these variations.\\nFor instance, in this case the State offered evidence showing that, due to Payne's actions, the victim's genital area was reddened, irritated, and painful to the touch. Consequently, under these facts, establishing that Payne touched the victim's genitalia with intent to cause substantial emotional or bodily pain \\u2014 a variation of the elements of sexual abuse of a child \\u2014 also tends to prove Payne intentionally inflicted a bruise, contusion, or other deleterious condition on the victim \\u2014 a variation of the elements of child abuse. In other words, in this case, the same or less than all the facts necessary to prove sexual abuse tend to prove the elements of child abuse, and the offenses thus have the necessary overlap to satisfy the first Baker factor. Cf. State v. Jones, 878 P.2d 1175, 1177-78 (Utah Ct.App.1994) (holding assault is lesser included offense of forcible sexual abuse).\\nWe now turn to the second Baker factor. In doing so, we examine whether the evidence presented a rational basis for convicting Payne of child abuse while acquitting him of both child sexual abuse (with which he was charged) and lewdness involving a child (of which he was actually convicted). See Baker, 671 P.2d at 157-58. In making this determination, trial courts have little or no leeway. If\\nthe evidence is ambiguous and susceptible to alternative explanations, the trial court must give the lesser included offense instruction if any one of the alternative interpretations provides both a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.\\n. [T]his standard does not allow the court in jury cases to weight ] the credibility of the evidence offered by a defendant in support of his or her request for a lesser included offense instruction.... It follows that in determining whether a rational jury could acquit on the greater charge and find guilt on the lesser charge, the court must view the evidence and the inferences that can be drawn from it in the light most favorable to the defendant.\\nState v. Velarde, 734 P.2d 449, 451 (Utah 1986) (footnotes omitted).\\nIt was undisputed that Payne and the victim had been wrestling, tickling, and otherwise roughhousing. At trial, Payne postulated that the victim's injuries were accidentally caused by roughhousing or wrestling, rather than by improper touching. This theory found support in Dr. Nelson's testimony that the victim's injuries were in a location that can be easily injured during physical activities, such as straddling.\\nThis evidence, while not compelling such a result, would permit the jury to infer that, rather than touching the victim's genitalia knowing it would cause her affront or alarm, Payne intentionally, recklessly, or negligently inflicted a contusion or other condition which imperiled the victim's health or welfare. We draw this conclusion, as we must, without weighing the evidence supporting Payne's request for a child abuse instruction, and viewing this evidence in the light most favorable to Payne. Viewed in this way, the evidence \\u2014 or at least inferences which could be drawn from it \\u2014 provides a rational basis for a verdict acquitting Payne of lewdness involving a child and convicting him of the lesser included offense of child abuse. Therefore, the trial court erroneously refused to instruct the jury on child abuse.\\nHowever, even if a trial court errs in refusing to instruct a jury on a lesser included offense, reversal is appropriate only where the error is prejudicial. See State v. Piansiaksone, 954 P.2d 861, 871-72 (Utah 1998) (concluding that any error in refusing lesser included offense instruction was harmless); State v. Pearson, 943 P.2d 1347, 1350-51 (Utah 1997) (same); State v. Gotschall, 782 P.2d 459, 464 (Utah 1989) (same). \\\"For an error to require reversal, 'the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict.'\\\" State v. Jacques, 924 P.2d 898, 902 (Utah Ct.App.1996) (quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).\\nIn applying this standard in other contexts, we have reversed when the defendant and the State presented conflicting testimony, especially when no physical evidence corroborated the State's case. See, e.g., State v. Iorg, 801 P.2d 938, 941-42 (Utah Ct.App.1990). In contrast, reversal is inappropriate when, for example, compelling evidence supports the defendant's conviction. See State v. Willett, 909 P.2d 218, 224 (Utah 1995). In this case, then, we must decide whether, even though there was a rational basis in the evidence for giving the requested child abuse instruction, the evidence of the greater offense was so strong that there is no substantial likelihood of a different outcome had the requested instruction been given.\\nThe victim testified that Payne rubbed her genital area and that this touching was outside the course of wrestling or other roughhousing with Payne. The twelve-year-old independently reported his observations to his mother and his eyewitness testimony corroborated the victim's account, as did the testimony of the victim's mother and the physical evidence described by Dr. Nelson. Payne presented no contradictory evidence. Instead, he argues that the jury could have convicted him of child abuse based on inferences that could be drawn from the victim's testimony, i.e. that some straddling or similar conduct might have occurred during his wrestling with the victim, and from Nelson's testimony regarding the location, severity, and possible causes of the victim's injuries. But to find Payne guilty of child abuse rather than lewdness involving a child, the jury would have to reject the consistent testimony of two witnesses who independently registered their concerns with adults immediately after the incident and who, as described by other witnesses, consistently stuck by their stories. The jury would have to reject the credibility of these witnesses in favor of mere inferences that are conceivable from the evidence but are by no means compelled by it. Under these circumstances, we see no reasonable likelihood that, had the court properly instructed it on child abuse, the jury would have convicted Payne of this offense rather than lewdness involving a child. In other words, the likelihood of a different outcome is not sufficiently high to undermine our confidence in the verdict. Therefore, the trial court's refusal to instruct the jury on child abuse, while incorrect, was harmless error.\\nCONCLUSION\\nThe trial court did not abuse its discretion in excluding Gregory's testimony, and we therefore affirm the court's decision to do so. Also, because no rational basis exists on which the jury could convict Payne of gross lewdness, we affirm the trial court's refusal to instruct the jury on this offense. Finally, although both Baker factors were met for child abuse, the trial court's refusal to instruct the jury on that offense, while erroneous, was harmless.\\nAffirmed.\\nDAVIS, P.J., and WILKINS, Associate P.J., concur.\\n. Because it materially differs from the version currently in effect, we cite the codification of section 76-9-702.5 in effect at the time of the incident in question. For all other statutory provisions, we cite the most recent codifications.\\n. Although it gave no reason for refusing to instruct the jury on child abuse, the trial court based its refusal to instruct the jury on gross lewdness on a mistake of law. When Payne requested an instruction on gross lewdness, both he and the prosecution mistakenly represented to the court that, at the time in question, the gross lewdness statute applied only to victims older than the age of fourteen. The court based its refusal to give a gross lewdness instruction on this misstatement.\\nHowever, an amendment that was effective on May 2, 1994 \\u2014 two months before the evening in question \\u2014 removed from the crime of gross lewdness the element that the victim be over fourteen. See 1994 .Utah Laws, ch. 131, \\u00a7 1, 593, 593; Utah Code Ann. \\u00a7 76-9-702(3) (Supp. 1997). This amendment was likely in response to language in this court's ruling in State v. Vogt, 824 P.2d 455 (Utah Ct.App.1991), which restricted lewdness involving a child-under Utah Code Ann. \\u00a7 76-9-702.5 to \\\"the exposing of a child to sexual activity\\\" while excluding \\\"the actual touching of the victim\\\" from the statute's scope. Id. at 458 (emphasis in original). Realizing that this interpretation of the 'lewdness involving a child statute \\\"would protect children fourteen or older from being [improperly] touched . but children under fourteen would not be protected against this same behavior,\\\" this court later disavowed \\\"any language in Vogt that can be read to exclude touching conduct from those behaviors actionable under section 76-9-702.5.\\\" State v. Perry, 871 P.2d 576, 580 (Utah Ct.App.1994). Consequently, given the Legislature's amendment to section 76-9-702 and this court's ruling in Perry, the same conduct \\u2014 touching the genitals of a child under fourteen \\u2014 may be criminally actionable under two different lewdness statutes.\\nOn appeal, Payne, perhaps mindful of the invited error doctrine, does not raise the trial court's erroneous basis for refusing to instruct the jury on gross lewdness. Because he does not, and because we \\\"may affirm the trial court's decision on any proper grounds, even though the trial court assigned, another reason for its ruling,\\\" State v. Bryan, 709 P.2d 257, 260 (Utah 1985), we need not further address the trial court's erroneous basis for refusing to give a gross lewdness instruction.\\n. We have considered Payne's other objections to the trial court's exclusion of Gregory's testimony and determine them to be without merit. \\\"An appellate court has discretion as to the nature and extent of the opinions it renders and we need not 'address in writing each and every argument, issue, or claim raised and properly before us on appeal.' \\\" State v. Tucker, 800 P.2d 819, 824 n. 9 (Utah Ct.App.1990) (quoting State v. Carter, 776 P.2d 886, 888 (Utah 1989)).\\n. The State claims Payne sought only an instruction for reckless child abuse at trial and thus waived an instruction for intentional or negligent child abuse. However, the record indicates that, although Payne's counsel was unsure of the mental states encompassed by the child abuse statute, both Payne and the State contemplated intentional, reckless, and negligent child abuse when Payne requested an instruction for this offense. See Utah Code Ann. \\u00a7 76-5-109(3) (Supp.1997).\"}"

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+"{\"id\": \"11682314\", \"name\": \"Larry JULIAN, Plaintiff and Appellee, v. STATE of Utah, Defendant and Appellant\", \"name_abbreviation\": \"Julian v. State\", \"decision_date\": \"1998-08-04\", \"docket_number\": \"No. 970163\", \"first_page\": \"249\", \"last_page\": \"260\", \"citations\": \"966 P.2d 249\", \"volume\": \"966\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:13:52.700047+00:00\", \"provenance\": \"CAP\", \"judges\": \"DURHAM Associate C.J., concurs in Justice RUSSON\\u2019S opinion.\", \"parties\": \"Larry JULIAN, Plaintiff and Appellee, v. STATE of Utah, Defendant and Appellant.\", \"head_matter\": \"Larry JULIAN, Plaintiff and Appellee, v. STATE of Utah, Defendant and Appellant.\\nNo. 970163.\\nSupreme Court of Utah.\\nAug. 4, 1998.\\nJ. Thomas Bowen, Jennifer Gowans, Mid-vale, for plaintiff.\\nJan Graham, Att\\u2019y Gen., Laura Dupaix, Asst. Att\\u2019y Gen., for defendant.\", \"word_count\": \"6975\", \"char_count\": \"44570\", \"text\": \"RUSSON, Justice:\\nINTRODUCTION\\nThe State appeals from a district court's grant of Larry Julian's petition for extraordinary relief in which Julian challenged his 1987 convictions of two counts of sodomy upon a child, first degree felonies, in violation of Utah Code Ann. \\u00a7 76-5-403.1. The court vacated his convictions, ruhng that errors which Julian alleged took place at trial constituted plain and harmful error. We reverse and remand for further proceedings.\\nBACKGROUND\\nOn July 27,1987, a jury convicted Julian of committing sodomy upon his two daughters, ages eight and ten. The court sentenced Julian to two concurrent prison terms of fifteen years to life. This court affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989).\\nOn December 18, 1995, Julian filed a petition in the district court for extraordinary relief (\\\"habeas corpus\\\" petition) pursuant to rule 65B of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 65B (1995). In a memorandum supporting his petition, Julian alleged that (1) the trial court committed plain and harmful error by admitting into evidence adult witnesses' testimony regarding the children's out-of-court statements of the alleged sexual abuse without first determining that those statements were reliable, as required by Utah Code Ann. \\u00a7 76-5-411 (1995); (2) trial counsel were ineffective for fading to object to the unreliable hearsay and for failing to request that the court make reliability findings; and (3) appellate counsel was ineffective for failing to raise the trial court's reversible errors on direct appeal.\\nOn February 12,1996, the State moved for an extension of time to respond to the petition. The habeas court granted that motion, and the State then filed a timely motion to dismiss the petition on the ground that it was time-barred by Utah Code Ann. \\u00a7 78-12-25(3) (1992), the four-year limitations provi sion for civil claims not otherwise provided for by law (the \\\"catch-all\\\" statute). According to the State, that statute took effect when the court of appeals declared unconstitutional Utah Code Ann. \\u00a7 78-12-31.1 (1992) (the former \\\"ninety-day\\\" statute of limitations provision applicable to habeas corpus petitions). See Currier v. Holden, 862 P.2d 1357 (Utah Ct.App.1993). After the ninety-day statute was declared unconstitutional, the legislature enacted Utah Code Ann. \\u00a7 78-35a-107 (1996) (the new \\\"one-year\\\" statute of limitations provision for post-conviction relief), which became effective May 1, 1995, approximately eight months before Julian filed his petition. However, the State asserted that it elected not to invoke the one-year statute because it had adopted a policy of not invoking the new statute to the detriment of a defendant until May 1, 1996, to give defendants an opportunity to learn of the statute before they were penalized by its application.\\nJulian filed a memorandum in opposition to the State's motion to dismiss, arguing, inter aha, that the catch-all statute could not be constitutionally applied to bar his petition. After considering the parties' memoranda, the habeas court denied the State's motion to dismiss. In a written order dated May 30, 1996, the court ruled that the four-year catch-all statute did not apply to Julian's petition for two reasons. First, the court concluded that the catch-all statute applied only where relief was not otherwise provided for by law and that relief was provided for by the one-year statute in section 78-35a-107. Thus, according to the court, the State's decision not to invoke the appropriate statute of limitations was an attempt to circumvent the intent of the legislature. Second, the court concluded that while the catch-all statute's four-year limitations period was noticeably longer than the period prescribed by the ninety-day statute struck down in Currier, it was equally inflexible. Nevertheless, because the one-year statute applied to Julian's petition, the court declined to reach the issue of whether application of the catch-all statute would be constitutional. The court then considered Julian's petition in light of the one-year statute. While it did not determine whether Julian's petition was filed within the one-year limitations period, the court concluded that even if his petition was untimely, given the gravity of his claims the court would excuse such untimeliness under the \\\"interests of justice\\\" exception of the said statute and consider the merits of the petition.\\nThereafter, on July 12, 1996, Julian filed a request for a ruling on his petition, asserting that the State had not filed an answer. However, on August 5,1996, the State filed a second motion to dismiss the petition, alleging that (1) the trial court was not required to make reliability findings pursuant to section 76-5-411 before admitting the children's out-of-court statements into evidence because those statements were properly admissible under the Utah Rules of Evidence; (2) trial and appellate counsel were not ineffective in failing to raise the section 76-5-411 issue because the children's statements were admissible under evidentiary rules; and (3) even if the trial court should have made reliability findings pursuant to section 76-5-411, its failure to do so did not violate Julian's constitutional rights and was harmless error.\\nOn September 20, 1996, Julian filed a memorandum in opposition to the State's second motion to dismiss. Neither party requested a hearing, but both filed requests for a ruling on the petition. The habeas court did not rule on the State's second motion to dismiss but instead treated it as a response to Julian's petition.\\nOn March 10, 1997, the habeas court issued a written order setting aside Julian's convictions. In the findings of fact and conclusions of law supporting its order, the court made the following legal conclusions: (1) The trial court erred in failing to make reliability findings under section 76-5-411; (2) Julian's trial and appellate counsel failed to provide adequate representation because they did not request reliability findings at trial or raise the reliability issue on appeal; and (3) there was a \\\"reasonable probability that, absent improperly admitted adult testimony, the outcome of the trial would have been different.\\\" The court subsequently denied the State's request for a stay of its order pending appeal and released Julian from prison on bond.\\nOn appeal, the State asserts three main arguments to support its claim that the court erred in granting the relief Julian sought in his petition: (1) the petition was time-barred by section 78-12-25(3)'s four-year catch-all statute of limitations period, and the one-year statute could not be applied retroactively to Julian's petition; (2) even if the court correctly applied the one-year statute, it erred in excusing Julian's untimeliness under the statute's \\\"interests of justice\\\" exception; and (3) reliability findings under section 76-5-411 were not required because the challenged testimony was otherwise admissible under the Utah Rules of Evidence; therefore, the court erred in concluding that the lack of reliability findings constituted plain eiTor and that Julian's counsel were ineffective.\\nJulian, on the other hand, asserts that the four-year catch-all statute may not be constitutionally applied to bar his habeas petition. Furthermore, he maintains his position \\u2014 as set forth in his petition \\u2014 that the trial court's failure to make reliability findings pursuant to section 76-5-411 constituted plain and harmful error, violated his substantive rights, and resulted in substantial prejudice and that defense counsels' failure to raise the reliability issue constituted ineffective assistance of counsel. He also asserts, for the first time, that expert testimony regarding the child victims' veracity was prejudicial and constituted plain and reversible error.\\nSTANDARD OF REVIEW\\nWhen reviewing an appeal from an order dismissing a petition for extraordinary relief or granting the relief requested in such a petition, we accord no deference to the lower court's conclusions of law but review them for correctness. See Monson v. Carver, 928 P.2d 1017, 1022-23 (Utah 1996).\\nANALYSIS\\nI. THE FOUR-YEAR CATCH-ALL STATUTE OF LIMITATIONS PROVISION \\u2014 UTAH CODE ANN. \\u00a7 78-12-25(3)\\nThe first issue is whether the four-year catch-all statute of limitations period in section 78-12-25(3) may be applied to bar Julian's petition for extraordinary relief. That section provides that an action may be brought within four years for relief \\\"not otherwise provided for by law.\\\" The application of a statute of limitations is a question of law, which we review for correctness. See Gramlich v. Munsey, 838 P.2d 1131, 1132 (Utah 1992).\\nThe State's reasoning for applying the catch-all statute may be summarized as follows: When the court of appeals in Currier struck section 78-12-31.1 (the ninety-day statute) as unconstitutional, the four-year catch-all statute became applicable to petitions for post-conviction relief. This is so because post-conviction proceedings, including petitions for writs of habeas corpus, are civil actions. See Andrews v. Morris, 607 P.2d 816, 822 (Utah 1980). The catch-all's four-year period began to run from the time Julian's cause of action accrued, which was March 28, 1989, the date on which this court affirmed his convictions. See State v. Julian, 771 P.2d 1061 (Utah 1989). Because Julian's cause of action expired on March 28, 1993, the one-year statute \\u2014 which became effective on May 1, 1995 \\u2014 could not be retroactively applied to his petition. See Roark v. Crabtree, 893 P.2d 1058, 1062 (Utah 1995) (holding that once claim has expired under applicable statute of limitations, claim cannot be revived by subsequently enacted statute of limitations).\\nThe habeas court ruled that the catch-all statute did not apply because relief was otherwise provided for by the one-year statute. However, the court's ruling did not consider the State's claim that the catch-all statute had barred Julian's petition before the one-year statute was even enacted. If the State is correct, Julian's allegedly stale claim arguably could not be revived by the one-year statute. We must therefore determine whether the catch-all statute applied to bar Julian's petition.\\nJulian argues on appeal that the catch-all statute cannot be constitutionally applied to bar a habeas corpus petition. We agree. While the State correctly notes that a habeas corpus petition is a civil action, this fact does not undermine the petition's importance of protecting fundamental constitutional rights. This court has referred to the \\\"writ\\\" as \\\"the precious safeguard of personal liberty,\\\" Hurst v. Cook, 777 P.2d 1029, 1033 (Utah 1989), because it is often the only remedy available to a person who has been imprisoned in violation of due process of law. See Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968, 969 (Utah 1968). Moreover, we have recognized that \\\"[q]uintessentially, the Writ belongs to the judicial branch of government\\\" and that \\\"the writ of habeas corpus is one of the most important of all judicial tools for the protection of individual liberty.\\\" Hurst, 777 P.2d at 1033, 1034. In fact, the Utah Constitution provides, \\\"The privilege of the writ of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety requires it.\\\" Utah Const, art. I, \\u00a7 5.\\nHence, the legislature may not impose restrictions which limit the writ as a judicial rale of procedure, except as provided in the constitution. As we have stated, \\\"[T]he separation of powers provision, Article V, Section 1 of the Utah Constitution, requires, and the Open Courts Provision of the Declaration of Rights, Article I, Section 11, presupposes, a judicial department armed with process sufficient to fulfill its role as the third branch 'of government.\\\" Hurst, 777 P.2d at 1033. Thus, in striking section 78-12-31.1 as unconstitutional, the court of appeals aptly noted that the statute \\\"remove[d] flexibility and discretion from state judicial procedure, thereby diminishing the court's ability to guarantee fairness and equity in particular cases.\\\" Currier, 862 P.2d at 1368 n. 18.\\nWe therefore hold that section 78-12-25(3), the four-year statute of limitations provision, may not be constitutionally applied to bar a habeas corpus petition. As the habeas court correctly noted, although the four-year catch-all statute is noticeably longer than the ninety-day statute struck down by Currier, it is equally inflexible. Applying the catchall statute to bar habeas petitions not only violates the Utah Constitution's open courts provision in article I, section 11, but also violates the separation of powers provision in article V, section 1. Hence, the court correctly ruled \\u2014 albeit on other grounds \\u2014 that section 78-12-25(3) did not apply to Julian's petition.\\nII. THE ONE-YEAR STATUTE'S \\\"INTERESTS OF JUSTICE\\\" EXCEPTION \\u2014 UTAH CODE ANN. \\u00a7 78-35a-107(3)\\nThe State's second argument is that even if the one-year statute applied, the ha-beas court erred in excusing the petition's timeliness under the statute's \\\"interests of justice\\\" exception. The one-year statute provides in pertinent part:\\n(1) A petitioner is entitled to relief only if the petition is filed within one year after the cause of action has accrued.\\n(3) If the court finds that the interests of justice require, a court may excuse a petitioner's failure to file within the time limitations.\\nUtah Code Ann. \\u00a7 78-35a-107(l) & (3) (1996). Under this statute, the decision whether to excuse an untimely petition pursuant to the \\\"interests of justice\\\" exception is a matter within the court's discretion. The habeas court in the instant action excused the untimely filing of Julian's petition under the exception, and we will reverse that court's decision in this regard only if the court abused its discretion. See 39 Am. Jur.2d Habeas Corpus \\u00a7 129 (1968).\\nThe State argues that the habeas court misinterpreted the purpose and meaning of the \\\"interests of justice\\\" exception, which should be read narrowly to apply only under truly exceptional circumstances. According to the State, the purpose of statutes of limitations is to encourage litigants to diligently seek out and file their claims early so as to promote finality and to protect defendants from having to defend stale claims. See Horton v. Goldminer's Daughter, 785 P.2d 1087, 1091 (Utah 1989). That policy, the State asserts, is equally important in post-conviction proceedings, in which the State has an interest in keeping persons convicted of serious crimes incarcerated. Thus, the State maintains that allowing attacks on legitimate convictions many years later makes it difficult, if not impossible, for the State to defend against those claims.\\nWe fully appreciate the State's concerns. We emphasize, however, that when a court grants relief pursuant to a habeas corpus petition, it does so on the ground that the petitioner has been wrongfully incarcerated. See Utah R. Civ. P. 65B & 65C. That is to say, a court should grant relief if the petitioner establishes that he or she has been deprived of due process of law or that \\\"it would be unconscionable not to re-examine the conviction.\\\" Brown, 440 P.2d at 969. Therefore, if the proper showing is made, the mere passage of time can never justify continued imprisonment of one who has been deprived of fundamental rights, regardless of how difficult it may be for the State to reprosecute that individual.\\nWe note that while Julian does not directly challenge the constitutionality of section 78-35a-107 (the one-year statute), he argues that if the State's narrow construction regarding the \\\"interests of justice\\\" exception has any merit, then that statute also unconstitutionally limits habeas corpus actions. Under our reasoning in this case, proper consideration of meritorious claims raised in a habeas corpus petition will always be in the interests of justice. It necessarily follows that no statute of limitations may be constitutionally applied to bar a habeas petition.\\nThis does not mean that a petitioner has an unconditional right to have his petition considered fully on its merits. It means only that a petitioner has a right to have the claims set forth in his petition reviewed by a judge for determination as to whether the petition warrants further proceedings or whether it should be dismissed for reasons set forth in the Utah Rules of Civil Procedure governing petitions for extraordinary relief. See Utah R.Civ.P. 65B(b). If a statute of limitations alone could be applied to dismiss such a petition, a person who has spent years in prison who could show his innocence \\u2014 e.g., by new DNA evidence or confessions of others \\u2014 could never be exonerated and obtain freedom from wrongful incarceration.\\nIn the case at bar, the habeas court apparently considered Julian's petition because his claims undermined the court's confidence in the trial's outcome. Because there is no evidence to the contrary, we conclude that the court did not abuse its discretion in considering the petition.\\nIII. SECTION 76-5-411'S RELIABILITY REQUIREMENTS\\nWe turn next to the State's third main issue \\u2014 whether the habeas court erred in ruling that section 76-5-411 requires a trial court to make reliability findings before it may admit a child victim's out-of-court statements regarding sexual abuse of that child, even if those statements are admissible un der some other rule of evidence. The State argues that section 76-5-41 l's purpose is to make it easier to admit children's testimony in child sexual abuse cases and that the statute does not displace normal rules of evidence but rather acts as a secondary rule that allows the admission of otherwise inadmissible evidence. However, in granting the relief Julian requested, the court stated: \\\"As this Court reads the ease law regarding section 76-5-411, it appears that the statute overrides the hearsay rules. In other words, even if statements qualify as a hearsay exception, section 76-5-411 findings must also be made before admission.\\\"\\nThe habeas court's conclusion that the trial court committed plain and harmful error by failing to make reliability findings pursuant to section 76-5-411 is a legal conclusion, based upon its interpretation of the statute, which we review for correctness. See State v. Anderson, 929 P.2d 1107, 1108 (Utah 1996); Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995).\\nWe begin our analysis by setting forth the relevant provisions of section 76-5-411:\\n(1) Notwithstanding any rule of evidence, a child victim's out-of-court statement regarding sexual abuse of that child is admissible as evidence although it does not qualify under an existing hearsay exception, if:\\n(a) the child is available to testify in court or under Rule 15.5(2) or (3), Utah Rules of Criminal Procedure;\\n(b) if the child is not available to testify in court or under Rule 15.5(2) or (3), Utah Rules of Criminal Procedure, there is other corroborative evidence of the abuse; or\\n(c) the statement qualifies for admission under Rule 15.5(1), Utah Rules of Criminal Procedure.\\n(2) Prior to admission of any statement into evidence under this section, the judge shall determine whether the interest of justice will best be served by admission of that statement. In making this determination the judge shall consider the age and maturity of the child, the nature and duration of the abuse, the relationship of the child to the offender, and the reliability of the assertion and of the child.\\nUtah Code Ann. \\u00a7 76-5-411 (1995).\\nThe statute's plain language clearly indicates that the statute applies only to a child victim's out-of-court statements that are not otherwise admissible under existing evi-dentiary rules. Subsection (1) simply states that such statements may be admitted into evidence even though they would not be admissible under an existing hearsay exception, so long as (a), (b), or (c) is satisfied. Subsection (2) adds one more requirement for admissibility under the statute: if the statements are admissible under subsection (1), the court must then determine whether the interest of justice will best be served by admission of the statements. Reason dictates that if the statements are admissible under some other rule of evidence rather than \\\"under this section,\\\" then the court need not make the findings required by subsection (2).\\nMoreover, our case law has consistently recognized that section 76-5-411 applies only when the child victim's statements would be inadmissible under our evidentiary rules. See, e.g., State v. Eldredge, 773 P.2d 29, 32 (Utah 1989) (\\\"[Sjection 76-5-411 appears to do no more than allow the admission of otherwise inadmissible hearsay statements.\\\" (emphasis added)); State v. Lamper, 779 P.2d 1125, 1131 n. 1 (Utah 1989) (Durham, J., concurring in the result) (\\\"Section 76-5-411 applies only to hearsay statements which do not qualify for admission under existing hearsay exceptions.\\\" (emphasis added)); State v. Loughton, 747 P.2d 426, 430 (Utah 1987) (stating that sections 76-5-410 and - 411 are \\\"extraordinary rules of evidence [that] allow otherwise-inadmissible evidence to be used in trying a person charged with sexual abuse of a child\\\" (emphasis added)).\\nWe also note that section 76-5-411 appears to have been enacted to facilitate the admission of child victims' out-of-court statements while at the same time satisfying constitutional requirements. Were the statute to apply to otherwise admissible statements, it would effectively create additional burdens, thereby making admission of those statements more difficult. Such a result contra venes the statute's plain language as well as other statutory provisions that facilitate the admission of evidence in child sexual abuse cases.\\nFor example, section 76-5-410 provides that a \\\"child victim of sexual abuse under the age of ten is a competent witness and shall be allowed to testify without prior qualification in any judicial proceeding. The trier of fact shall determine the weight and credibility of the testimony.\\\" Utah Code Ann. \\u00a7 76-5-410 (1995) (emphasis added). If child victims are competent witnesses, their out-of-court statements that would be admissible under evidentiary rules should not be subject to the additional reliability requirements of section 76-5-411, which are necessary to keep the admission of such statements from violating the confrontation clauses of the state and federal constitutions. See State v. Nelson, 725 P.2d 1353, 1355-56 n. 3 (Utah 1986).\\nAs we stated in Nelson, the admission of hearsay statements may offend the confrontation clauses unless those statements contain sufficient indicia of reliability, or \\\" 'particularized guarantees of trustworthiness.' \\\" Id. (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)); see also Idaho v. Wright, 497 U.S. 805, 815, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). \\\"Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.\\\" Wright, 497 U.S. at 815, 110 S.Ct. 3139. However, because hearsay statements subject to section 76-5-All do not fall within firmly rooted hearsay exceptions, the court must make findings regarding their reliability for trustworthiness before admitting them into evidence. See Nelson, 725 P.2d at 1355-56 n. 3; State v. Matsamas, 808 P.2d 1048, 1051 (Utah 1991) (\\\"[O]ur post-Nelson decisions [stress] the critical nature of the requirement of findings on reliability.\\\").\\nIn light of the foregoing, we hold that section 76-5-411 does not apply to child victims' out-of-court statements regarding sexual abuse that may be admitted as substantive evidence under existing evidentiary rules. We therefore conclude that the habeas court erred in ruling that section 76-5-411 overrides the hearsay exceptions.\\nIV. THE ADMISSIBILITY OF THE CHILDREN'S OUT-OF-COURT STATEMENTS UNDER THE UTAH RULES OF EVIDENCE\\nOur conclusion above does not end our inquiry, because the habeas court concluded that some of the adult witnesses' testimony regarding the children's out-of-court statements would have qualified for admission under the hearsay exceptions of the Utah Rules of Evidence. However, the parties dispute whether those statements admitted at trial qualified for admission under the hearsay exceptions. We must therefore address whether the statements were admissible and whether the habeas court was correct in so holding.\\nThe State argues that the testimony of Dr. Mary Beard \\u2014 an obstetrician/gynecologist\\u2014 regarding the children's out-of-court statements of sexual abuse would have been admissible under rule 803(4) of the Utah Rules of Evidence (the \\\"treating physician\\\" exception). In contrast, Julian asserts that Dr. Beard conducted physical examinations of the children for the purpose of investigating Susan Julian's claim that the children had been sexually abused by their father. Because the children's out-of-court statements were elicited during an interview preceding the physical examination in which Mrs. Julian provided assistance and input, Julian argues that those statements were not spontaneous, were not elicited during the course of diagnosis or treatment, and were not reliable or trustworthy.\\nThe other adult witnesses who testified regarding the children's out-of-court statements of sexual abuse were Susan Julian, Susan Dollarhide (the director of Parents United, who interviewed the children), and Kathryn Patterson (a licensed social worker who interviewed the children). The State argues that their testimony regarding the children's statements did not constitute hearsay as defined by rule 801(d)(1), which allows certain out-of-court statements to be admitted as nonhearsay for the purpose of rehabilitating a witness's credibility. According to the State, defense counsel throughout trial suggested that the children had been improperly influenced by their mother and the two social workers to fabricate their allegations that their father had sexually abused them. Hence, the State argues, it was permitted under rule 801(d)(1) to allow Susan Julian, Susan Dollarhide, and Kathryn Patterson to testify regarding the children's out-of-court statements and the circumstances surrounding those statements.\\nIn contrast, Julian argues that the State should not be allowed to circumvent reliability requirements by applying alternative theories for admission beyond the proximity of the trial court. According to Julian, the State initially applied rule 803(4) to the hearsay testimony of three of the four adult witnesses at trial but takes the position on appeal that all of the challenged testimony was nonhearsay under rule 801(d)(1)(B). However, Julian maintains, such testimony could be considered only for the limited purpose of rehabilitating witness credibility and the jury was never given a limiting instruction in this regard. See State v. Speer, 718 P.2d 383, 385 (Utah 1986) (relying upon trial court's jury instruction that out-of-court statements were admitted for sole purpose of rehabilitating victim's credibility by showing prior consistent statements). Hence, Julian argues that without a limiting jury instruction, the out-of-court statements were presented and received as direct evidence of the truth of the matter asserted.\\nGiven the scant information before us, we have no basis upon which we can determine whether the State or Julian is correct. In granting the relief Julian sought, the habeas court made the following legal conclusions:\\n2. Some of the statements of the adult witnesses would have qualified for admission under the hearsay exception, Rule 803(4), Utah Rules of Evidence [the \\\"treating physician\\\" exception]. Specifically, certain statements the victims made to Dr. Beard at their first diagnostic examinations constituted statements made in the course of medical treatment or diagnosis. Additionally, other statements witnesses made did not even constitute hearsay as defined under Rule 801, Utah Rules of Evidence.\\n3. Due to the length of time since the trial, the Court cannot now apply section \\u00a7 [sic] 76-5^111 to all the statements the adult witnesses made; however, in reviewing the requirements of that statute, the Court believes the victims' mother's testimony and statements the victims allegedly made during group therapy would not have met those reliability standards. Therefore, had the statute been applied, they would not have been admitted.\\n(Emphasis added.) The court's conclusions are mere generalities and do not indicate specifically which statements would have been admissible or inadmissible under our rules of evidence. Presumably, the court did not make specific determinations in this re gard because it concluded that section 76-5-411 overrides the hearsay exceptions. However, because the court did not sufficiently address whether specific statements would have been admissible or inadmissible, we cannot adequately review the court's conclusions regarding the admissibility of those statements. We therefore must remand this case to the habeas court so that it may determine whether the statements Julian challenges were admissible or inadmissible under the rules of evidence. If it determines that the statements were admissible, the court must still determine whether they were admissible as substantive evidence or only for a limited purpose. Finally, if the court concludes that an error occurred regarding admissibility, it must determine whether the eiTor constituted reversible error.\\nAs a final matter, Julian argues that Kathryn Patterson's testimony regarding the veracity of the children's statements violated this court's ruling in State v. Rimmasch, 775 P.2d 388, 392 (Utah 1989). However, Julian did not raise this issue in his petition, and the habeas court did not consider it in granting the petition. Julian cites State v. Brown, 853 P.2d 851 (Utah 1992), for the proposition that this court may consider issues raised for the first time on appeal if the trial court committed plain error; he also cites State v. Malmrose, 649 P.2d 56, 58 (Utah 1982), for the proposition that this court may consider errors which were not objected to at trial if they bear upon a claim of ineffective assistance of counsel. Nevertheless, those cases do not apply to Julian's action. Julian does not assert that the trial court admitted Patterson's testimony regarding the children's veracity in an improper manner \\u2014 e.g., over defense counsel's objection. Julian argues only that the court permitted Kathryn Patterson to testify as to the children's truthfulness. Because the trial court was not required to bar the admission of such testimony absent a proper motion, the court did not commit plain error at trial. Moreover, because Julian did not assert in his petition that trial counsel were ineffective for failing to object to Patterson's testimony or that appellate counsel was ineffective for failing to raise the issue on appeal, we cannot conclude that the alleged error bears upon Julian's claims of ineffectiveness. We therefore follow our longstanding rule that we will not consider issues raised for the first time on appeal. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (\\\" '[I]ssues not raised at trial cannot be argued for the first time on appeal.' This rule applies to all claims, including constitutional questions, unless the petitioner demonstrates that 'plain error' occurred or 'exceptional circumstances' exist . \\\" (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994))).\\nCONCLUSION\\nThe habeas court correctly concluded that section 78-12-25(3) (the four-year catch-all statute) cannot be applied to bar a habeas corpus petition. Moreover, the court acted within its discretion when it concluded that the interests of justice exception in section 78-35a-107(3) (the one-year statute) excused Julian's failure to comply with the one-year limitations period. However, the habeas court erred in concluding that section 78-5-411 overrides the hearsay exceptions and that child victims' out-of-court statements regarding sexual abuse must satisfy the statute's requirements, even though those statements are otherwise admissible under existing evidentiary rules. It necessarily follows that the court could not correctly conclude that trial and appellate counsel were ineffective for failing to raise the section 76-5-411 reliability issue.\\nNevertheless, the court also concluded that some of the adult witnesses' testimony regarding the children's out-of-court statements would have been admissible under the hearsay exceptions of the Utah Rules of Evidence. However, because the court had concluded that section 76-5-411 overrides the hearsay exceptions, the court did not determine whether specific statements would be admissible or inadmissible. In the absence of such a determination, we have no basis for reviewing the court's conclusions in this regard.\\nWe therefore reverse the court's order and remand this case to the habeas court for further proceedings consistent with this opinion.\\nDURHAM Associate C.J., concurs in Justice RUSSON'S opinion.\\nHOWE, C.J., concurs in the result.\\n. We note that while our rules of civil procedure set forth the requirements for asserting a petition for extraordinary relief, an extraordinary relief proceeding such as the one in this case is substantively a form of the petition for a writ of habeas corpus and has been referred to as such in many past cases. See Tillman v. Cook, 855 P.2d 211, 225 n. 1 (Utah 1993).\\nWe further note that the 1996 amendments to the Utah Rules of Civil Procedure substantially changed rule 65B. One change was the deletion of former subdivision (b), concerning wrongful imprisonment, the provisions of which were transferred to rule 65C. See Utah R. Civ. P. 65B, amendment notes.\\n. The judge who presided over Julian's habeas petition was the same judge who presided over his trial. To clearly distinguish the district courts involved in this case, we will refer to the court hearing Julian's petition as the \\\"habeas\\\" court and to the court presiding over his trial as the \\\"trial\\\" court.\\n. Section 78-12-31.1 prescribed a rigid ninety-day limitations period that did not provide for judicial discretion. In section 78-35a-107, the legislature increased the limitations period to one year and also provided that a court may excuse a petitioner's failure to file within the time limitation \\\"if the court finds that the interests of justice require.\\\" Utah Code Ann. \\u00a7 78-35a-107(3) (1996).\\n. The one-year statute of limitations was originally codified at Utah Code Ann. \\u00a7 78-12-31.1 (1995), to which the district court referred in its rulings. That provision was subsequently renumbered as Utah Code Ann. \\u00a7 78-35a-107 (1996). We cite to the statute at its current location in the Code.\\n. The 1996 amendment modified the wording of section 78-12-25 but did not change the substance of the statute.\\n. We realize that we allowed section 78-12-25(3) to be applied to a habeas petition in Johnson v. State, 945 P.2d 673 (Utah 1997). However, the defendant in that case never challenged the constitutionality of the catch-all statute. Thus, in the absence of such a challenge, we upheld the district court's finding that the four-year limitations period applied. 945 P.2d at 676.\\n. We note that our holding uses the term \\\"substantive evidence.\\\" We do so because some out-of-court statements may be admissible only for certain limited purposes and not as substantive evidence, which is evidence adduced for the purpose of proving a fact in issue. See Black's Law Dictionary 1429 (6th ed.1990). In such instances, section 76-5-411 findings are unnecessary so long as the statements are considered only for the purposes for which they were admitted. If, however, those statements would not be admissible as substantive evidence under existing evi-dentiary rules and a party wishes to admit them as such, then the requirements of section 76-5-411 must be met.\\n. Rule 803(4) is an exception to the hearsay rule and allows the admission of statements \\\"made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.\\\" Utah R. Evid. 803(4) (1998). The 1992 amendments to the rules of evidence did not change rule 803(4).\\n. Rule 801(d)(1) provides that a statement is not hearsay if\\n[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . (B) consistent with the declarant's testimony and \\u00eds offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motivef.]\\nUtah R. Evid. 801(d)(1) (1998). The 1992 amendments to the rules of evidence changed the wording of rule 801(d)(1) but not its substance.\"}"

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+"{\"id\": \"11716101\", \"name\": \"Kendall Q. NORTHERN, Plaintiff and Appellant, v. N. Eldon BARNES, Warden, Utah State Prison and the Department of Corrections through the Board of Pardons, Defendants and Appellees\", \"name_abbreviation\": \"Northern v. Barnes\", \"decision_date\": \"1992-01-24\", \"docket_number\": \"No. 900566-CA\", \"first_page\": \"696\", \"last_page\": \"699\", \"citations\": \"825 P.2d 696\", \"volume\": \"825\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:59:07.157757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BENCH, P.J., and BILLINGS and GARFF, JJ.\", \"parties\": \"Kendall Q. NORTHERN, Plaintiff and Appellant, v. N. Eldon BARNES, Warden, Utah State Prison and the Department of Corrections through the Board of Pardons, Defendants and Appellees.\", \"head_matter\": \"Kendall Q. NORTHERN, Plaintiff and Appellant, v. N. Eldon BARNES, Warden, Utah State Prison and the Department of Corrections through the Board of Pardons, Defendants and Appellees.\\nNo. 900566-CA.\\nCourt of Appeals of Utah.\\nJan. 24, 1992.\\nSee also 814 P.2d 1148.\\nJo Carol Nesset-Sale, Salt Lake City, for plaintiff and appellant.\\nR. Paul Van Dam, Lorenzo K. Miller, and Kirk M. Torgensen, Salt Lake City, for defendants and appellees.\\nBefore BENCH, P.J., and BILLINGS and GARFF, JJ.\", \"word_count\": \"1769\", \"char_count\": \"10871\", \"text\": \"OPINION\\nBENCH, Presiding Judge:\\nKendall Q. Northern unsuccessfully petitioned the trial court for a writ of habeas corpus following a decision of the Board of Pardons (the Board) to rescind his original parole date. Northern appealed the trial court's decision, but was subsequently paroled during the pendency of this appeal. We affirm.\\nFACTS\\nIn 1980, Northern, an eighteen-year-old drifter, pleaded guilty to second degree murder and aggravated robbery for his participation in the shooting death of a cab driver earlier that same year. Northern was sentenced to two five-to-life sentences at the Utah State Prison. He later admitted he was under the influence of LSD at the time of the shooting, and had been deeply involved in drugs.\\nAfter Northern had been imprisoned for a year, the Board met and granted him a May 10, 1988 parole date. The Board reconsidered Northern's status in 1984, and determined that the 1988 parole date would remain intact despite evidence that Northern had used drugs at the prison during his incarceration.\\nIn 1986, Northern was transferred to the Duchesne County Jail where he attained trustee status. Over the next two years, Northern was allowed to work unsupervised outside the jail. In early 1988, with only a few months remaining before his projected parole, jail authorities discovered that Northern was again using drugs. This information was reported to the prison and received by the Board before his parole date.\\nTwo months before his parole date, a psychological assessment of Northern was made at the request of the Board. The report indicated that Northern had been a heavy drug user, and had been unable to deal with life's stresses without drugs. The report also said Northern acknowledged that his drug dependence was a major factor contributing to his antisocial behavior. Before the report was published, the Board also attempted to obtain Northern's consent to additional terms of release that would have included drug testing. On the advice of his father, however, Northern refused to consent to the new conditions.\\nOn May 9, 1988, the Board rescinded Northern's May 10 parole date, pending further review, and ordered another psychological evaluation. The need for another psychological evaluation and complete prison progress report was listed in the written notice by the Board as the ground for rescinding Northern's original parole date. The supplemental assessment focused on potential problems affecting Northern's adjustment into society posed by his relationship with his father. A full rescission hearing was then scheduled for July 8, 1988.\\nAt that hearing, the Board determined that Northern continued to be a risk to society, and refused to grant him parole at that. time. The Board scheduled a rehearing for May 1990, and Northern was returned to the Duchesne County Jail. Two months later, however, he escaped and fled to Canada. The Board then rescinded the rehearing scheduled for May 1990. Northern was captured and returned to prison on October 6, 1989.\\nNorthern petitioned for extraordinary relief and habeas corpus under Rule 65B(b)(2) and (4), and (f) of the Utah Rules of Civil Procedure. The petition prayed for (1) declaratory relief as to the unlawfulness of Northern's confinement since May 10, 1988, (2) a demand for his immediate release, and (3) damages in excess of $10,000 for \\\"breach of contract\\\" on the ground that a parole date created a legally binding agreement on the State. After a hearing, the trial court denied the petition, and Northern filed a notice of appeal. The Board subsequently set a July 1991 parole date, and required restitution of $26,350 by Northern as a condition of parole. Northern agreed to the new conditions, and was paroled on July 9, 1991, while this appeal was pending.\\nANALYSIS\\nIn general, the purpose of extraordinary relief under Rule 65B is to test the lawfulness of imprisonment, and the propriety of any related proceedings, by forcing a judicial hearing. See Ziegler v. Miliken, 583 P.2d 1175, 1176 (Utah 1978). Northern presents no authority, however, for extending the purposes of extraordinary writs as a procedure to bring contract claims. We also conclude that the demand for Northern's immediate parole is moot because parole was granted subsequent to the filing of this appeal. Spain v. Stewart, 639 P.2d 166, 168 (Utah 1981). We are therefore left only with Northern's prayer for declaratory relief as to the unlawfulness of his \\\"confinement.\\\"\\nInasmuch as Northern is no longer incarcerated, we must consider whether his request for declaratory relief is also moot. Courts have reviewed habeas corpus petitions that would have been otherwise rendered moot by the release of a prisoner when the prisoner suffers \\\"collateral legal consequences\\\" from a conviction, such as \\\"the use of the conviction to impeach the petitioner's character or as a factor in determining a sentence in a future trial, as well as petitioner's inability to vote, engage in certain businesses, or serve on a jury.\\\" Duran v. Morris, 635 P.2d 43, 45 (Utah 1981).\\nNorthern argues. that he would have completed his parole in May 1991, if the Board had not violated his due process rights in rescinding his original parole date. Thus, the request for declaratory relief becomes a question of whether Northern's extended parole status was a collateral legal consequence of alleged due process violations. In Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963), the United States Supreme Court held that release on parole does not render a petition for habeas corpus moot because parole \\\"imposes conditions which significantly confine and restrain [a parolee's] freedom.\\\" Since parole imposes conditions of confinement and Northern's parole status past May 1991 is a consequence of rescinding his original parole date, we proceed to address his claim for credit against his parole period for time served while incarcerated after his original parole date.\\nIn prior cases, discretion to give credit for time served was determined to lie solely with the Board. In State v. Schreuder, 712 P.2d 264, 277 (Utah 1985), the reason given for rejecting a similar argument demanding credit for time served was the Board's discretion to determine the period of time to be served. Likewise, in State v. Alvillar, 748 P.2d 207, 208-09 (Utah App.1988), we held that Utah courts have no authority to grant credit for time served prior to conviction since the power to reduce or terminate sentences is vested exclusively with the Board under Utah Code Ann. \\u00a7 77-27-5(3) (1990).\\nNorthern suggests that the Board's exercise of this discretionary authority is now subject to judicial review under the recent case of Foote v. Utah Board of Pardons, 808 P.2d 734 (Utah 1991). We disagree. In Foote, a prisoner sought an extraordinary writ, contending \\\"that the manner in which his parole hearings have been conducted [had] deprived him of procedural due process.\\\" Id. The Utah Supreme Court held that, under the Utah Constitution, an inmate is entitled to due process in proceedings before the Board. Id. at 735. The supreme court then referred the case to a trial court to .ascertain factually \\\"the procedures followed by the board\\\" and to decide what is procedurally required in \\\"the conduct of the parole hearings.\\\" Id. Since Northern was afforded full procedural due process by the July 8, 1988 hearing, any of the alleged procedural deficiencies in rescinding his original parole date were remedied before this petition was filed. Northern's claim relates, therefore, not to the procedural due process issues outlined in Foote, but to the reasonableness of the Board's decision in not granting Northern credit for the time served beyond his original parole date.\\nTermination of Northern's sentence is triggered by \\\"completion of three years on parole outside of confinement and without violation . unless the person is earlier terminated by the Board of Pardons.\\\" Utah Code Ann. \\u00a7 76-3-202(1) (1990). \\\"Any time spent in confinement awaiting a hearing . concerning revocation of parole constitutes service of sentence\\\" rather than time on parole. Section 76-3-202(3)(c). Since the Board has discretion to parole or discharge an inmate at any time, see section 76-3-202(5), it could have given Northern a parole period of less than three years and thereby credited him for the time served while incarcerated beyond his original parole date. We deem the Board's decision to not give Northern an earlier release date an exercise of its discretion.\\nThe Board's right to rely on any factors known in May 1988, or later adduced at the July 1988 hearing, and the weight to be afforded such factors in deciding whether Northern posed a societal risk, as well as whether an order of restitution was appropriate, are all matters within the discretion of the Board. They are precisely the kinds of issues that are not subject to judicial, review under section 77-27-5(3). Accordingly, we hold that habeas corpus is not available in this case as a post release remedy to modify the release date ordered by the Board.\\nWe have reviewed the remaining issues raised on appeal and deem them to be without merit. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (it is within our discretion to \\\"analyze and address in writing each and every argument, issue, or claim raised\\\").\\nCONCLUSION\\nThe trial court's denial of the writ is affirmed.\\nGARPF, J., concurs.\\nBILLINGS, J., concurs in the result.\\n. The administrative rules of the Board state, as policy, that \\\"[a]n offender shall be notified at least seven calendar days in advance of a hearing, except in extraordinary circumstances, and shall be specifically advised as to the purpose of the hearing.\\\" See Utah Admin.R. 655-202 (1991).\\n. Rule 65B was completely reorganized after Northern's petition was filed. See Utah R.Civ.P. 65B (amended effective September 1, 1991) and advisory committee note.\\n. Although moot questions are generally not considered on appeal due to the judicial policy against advisory opinions, courts have reached the merits of an issue that is technically moot, but is \\\"of wide concern, affects the public interest, is likely to recur in a similar manner, and, because of the brief time any one person is affected, would otherwise likely escape judicial review_\\\" Wickham v. Fisher, 629 P.2d 896, 899 (Utah 1981).\"}"

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+"{\"id\": \"11820465\", \"name\": \"Jane Ann TAYLOR, Plaintiff and Appellant, v. Marc Richard HANSEN, Defendant and Appellee\", \"name_abbreviation\": \"Taylor v. Hansen\", \"decision_date\": \"1998-05-07\", \"docket_number\": \"No. 960774-CA\", \"first_page\": \"923\", \"last_page\": \"931\", \"citations\": \"958 P.2d 923\", \"volume\": \"958\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:00:19.617486+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DAVIS, WILKINS and GREENWOOD, JJ.\", \"parties\": \"Jane Ann TAYLOR, Plaintiff and Appellant, v. Marc Richard HANSEN, Defendant and Appellee.\", \"head_matter\": \"Jane Ann TAYLOR, Plaintiff and Appellant, v. Marc Richard HANSEN, Defendant and Appellee.\\nNo. 960774-CA.\\nCourt of Appeals of Utah.\\nMay 7, 1998.\\nA. Howard Lundgren and Keith E. Taylor, Salt Lake City, for Plaintiff and Appellant.\\nPatricia A. O\\u2019Rorke, Midvale, for Defendant and Appellee.\\nBefore DAVIS, WILKINS and GREENWOOD, JJ.\", \"word_count\": \"4733\", \"char_count\": \"28912\", \"text\": \"OPINION\\nGREENWOOD, Judge:\\nJane Ann Taylor appeals the trial court's denial of her Motion to Compel Defendant to Sign Trust Agreement and her Motion for Judgment for Delinquent Child Care Costs and for Certain Other Relief. She also appeals the trial court's imposition of Rule 11 sanctions against her. We affirm in part and reverse in part.\\nBACKGROUND\\nJane Ann Taylor and Marc Hansen were married in 1989. They had two children. On August 1, 1995, Taylor filed for divorce from Hansen. In January 1996, Taylor filed an affidavit with the court, in which she averred that both parties \\\"endorse[] the stipulation and motion for entry upon Findings and Decree.\\\" The affidavit stated that \\\"[t]he Findings and Decree are consistent in every respect with the Complaint on file . and with our agreed settlement of the matter.\\\" The divorce court's Findings of Fact stated that \\\"[a]ll matters relating to . property division . have been agreed to by the parties and are set forth in detail in the judgment and decree of divorce . entered contemporaneously herewith.\\\"\\nThe portions of the divorce decree pertinent to issues on appeal include Paragraph 4(c), which ordered Hansen, \\\"per the applicable statutes,\\\" to reimburse Taylor for one-half of any child care costs or expenses incurred by her because of her career or occupational training and/or employment. The decree included no requirements for documentation and proof.\\nParagraph 12 of the decree awarded to Hansen \\\"in his capacity as a Trustee\\\" 214,639 shares of Cambric Graphics common stock. That paragraph ordered Hansen to\\nhold and deal with [the stock] as Trustee for the sole and exclusive use and benefit of the two minor children . pursuant to the terms of a Trust Agreement to be prepared agreed to and executed by [the parties] pursuant to this Judgment and Decree of Divorce. The . Agreement shall, in addition to normal and usual provisions with respect to investing and preserving the assets and income of the trust for the me and benefit of the children, provide (i) for annual accountings to be made by [Hansen] to [Taylor] ., (ii) for disbursement for the benefit of the children for their health, education, welfare, missions . and for their post-high school -education, with the corpus to be distributed to the children in equal shares upon their -respective 25th birthdays, and (iii) in the event of [Hansen's] death, Zion's Bank and Trust Company shall become the substitute trustee.\\n(Emphasis added.)\\nAfter entry of the divorce decree, Taylor mailed Hansen a proposed draft of the \\\"Marc Richard Hansen Irrevocable Trust Agreement and Declaration of Trust.\\\" Hansen rejected the proposed trust agreement, stating it diverged from the terms provided in the parties' settlement agreement and divorce decree.\\nHansen then sent Taylor a proposed draft of the trust agreement. Hansen's proposed trust agreement was consistent with the decree and included statutory provisions regarding powers of a trustee. See Utah Code Ann. \\u00a7 75-7-402 (1993). .\\nTaylor rejected Hansen's proposed trust agreement and filed a Motion to Compel Defendant to Sign Trust Agreement, or alternatively, to Amend the Judgment and Decree of Divorce. Taylor claimed her proposed trust agreement was more closely aligned with the requirements of the divorce decree. She asked that the court either order Hansen to sign her proposed trust agreement or, \\\"in the alternative, to award [the stock] to [Taylor] as her separate property representing her equal share of this portion of the marital estate.\\\" Taylor also requested her attorney fees and costs associated with bringing the motion.\\nHansen opposed Taylor's motion, claiming it was procedurally defective. Hansen argued that Taylor's proposed trust agreement contained provisions not contemplated by the divorce decree and that Taylor was effectively asking the court to modify the decree without first having filed a petition to modify under Rule 6-404(1) of the Utah Code of Judicial Administration. Hansen asked the court to deny Taylor's request for attorney fees and costs and instead asked that he be awarded his attorney fees and costs pursuant to Rule 11 of the Utah Rules of Civil Procedure because, he argued, Taylor's motion to compel was \\\"not warranted by existing law\\\" and because he had been required to respond to Taylor's \\\"procedurally defective motion to modify the divorce decree.\\\"\\n' Taylor filed a Reply Memorandum, withdrawing her alternate prayer for relief \\\"to amend the Judgment and Decree of Divorce.\\\" Taylor also filed a second motion with the court, seeking reimbursement of delinquent child care costs. Hansen's response to the motion claimed Taylor had complied with neither the statutory nor decree requirements for verification of child care costs.\\nThe trial court entered an order basically denying both of Taylor's motions. In this order, the trial court also denied Taylor her request for attorney fees and costs and awarded Hansen attorney'fees and costs pursuant to Rule 11. Hansen subsequently filed a motion for an award of attorney fees, seeking judgment in a specific amount. Prior to the trial court acting on that motion, Taylor filed a notice of appeal. Thereafter, the trial court entered an order granting fees to Hansen, fixing the dollar award amount.\\nISSUES\\nHansen initially challenges this court's jurisdiction to hear the appeal, claiming that because the trial court had not determined the amount of the attorney fee award before Taylor brought her appeal, the appeal was not taken from a \\\"final order\\\" as required by Rule 3 of the Utah Rules of Appellate Procedure. Taylor claims on appeal that the trial court erred in (1) denying her motion to compel Hansen to sign her proposed trust agreement, (2) denying her Motion for Reimbursement of Child Care Costs, (3) imposing Rule 11 sanctions upon her, and (4) denying her motion for attorney fees. Hansen requests his attorney fees on appeal pursuant to Rule 33 of the Utah Rules of Appellate Procedure.\\nANALYSIS\\n. Jurisdiction\\nAs a threshold issue, we must determine if Taylor's appeal is from a \\\"final order\\\" as required under Rule 3 of the Utah Rules of Appellate Procedure. That is, when attorney fees have been awarded to a party but the amount of those fees has not yet been determined by court order, is the case sufficiently final to permit filing of an appeal?\\nThe United States Supreme Court has held that proceedings for attorney fees and those under Rule 11 are collateral matters that do not address the merits of a party's cause of action, enabling federal courts to consider them after an order on the merits has been issued. See Cooter & Gell v. Hartmax, 496 U.S. 384, 395-96, 110 S.Ct. 2447, 2455-56, 110 L.Ed.2d 359 (1990). The Court noted that \\\"motions for costs or attorney's fees are 'independent proceedings supplemental to the original proceeding and not a request for a modification of the original decree.' \\\" Id. at 395, 110 S.Ct. at 2455 (citation omitted). The Utah Supreme Court has similarly held that Rule 11 sanctions are collateral and do not go to the merits of a case. See Barton v. Utah Transit Auth., 872 P.2d 1036, 1040 (Utah 1994); see also Saunders v. Sharp, 818 P.2d 574, 578 (Utah Ct.App.1991) (\\\"Most appellate courts that have addressed the propriety of a post-judgment motion for attorney fees have concluded that the issue of attorney fees involved a collater al matter, and thus the matter was appropriately considered by the trial court after an appeal was filed.\\\" (footnote omitted)).\\nNo Utah appellate decision has squarely addressed the issue before us, although its resolution was implied in dicta in Bunch v. Englehorn, 906 P.2d 918, 919-20 & n. 1 (Utah Ct.App.1995) (accepting jurisdiction over appeal even though issue of attorney fees was still pending and noting that during oral argument, defendant conceded trial court's order was final judgment even if he chose never to request attorney fees). We therefore look to federal cases construing comparable rules of appellate procedure. See Gold Standard, Inc. v. American Barrick Resources Corp., 805 P.2d 164, 168 (Utah 1990) (\\\"In construing our rule, we freely refer to authorities which interpreted the federal rule.\\\").\\nThe issue before us was addressed by the United States Supreme Court in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The Court accepted the case because oft a split on the issue in the circuit courts, typified in the cases of Holmes v. J. Ray McDermott & Co., 682 F.2d 1143, 1146 (5th Cir.1982), and International Ass'n. of Bridge, Structural, Ornamental, & Reinforcing Ironworkers' Local Union 75 v. Madison Indus., Inc., 733 F.2d 656, 658 (9th Cir.1984). See Budinich, 486 U.S. at 198, 108 S.Ct. at 1719-20. The Court stated,\\nThe question before us, therefore, is whether a decision on the merits is a \\\"final decision\\\" as a matter of federal law under [the federal procedural statute] when the recoverability or amount of attorney's fees for the litigation remains to be determined. . A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order .\\n. [W]e think it indisputable that a claim for attorney's fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the. injury giving rise to the action, and indeed is often available to the party defending against the action.\\nId. at 199-200, 108 S.Ct. at 1720-21. The Court recognized the need for a uniform rule to clarify the jurisdictional consequences. The Court then enunciated the following bright-line rule: \\\"[A] decision on the merits is a 'final decision' for purposes of [the federal procedural statute] whether or not there remains for adjudication a request for attorney's fees attributable to the ease.\\\" Id. at 202-03, 108 S.Ct. at 1722.\\nThe Tenth Circuit had been one of the circuits previously holding that \\\"if an award of attorney's fees is not reduced to a sum certain, it is not final.\\\" Phelps v. Washburn Univ. of Topeka, 807 F.2d 153, 154 (10th Cir.1986). We believe, however, that Budi-nich addressed the ability to appeal when the amount of fees is pending, as much as when recoverability has yet to be determined. Therefore, whether it is the application for fees, the amount, or both which are pending, the finality of a decision on the merits is unaffected. See Dunn v. Truck World, Inc., 929 F.2d 311, 312 (7th Cir.1991). In Dunn, the trial court had entered judgment for plaintiff of $50,000 plus legal fees and costs. Several months later, the court entered judgment for a specific dollar amount of $16,666 for legal fees and $241 in costs. Defendants filed an appeal shortly thereafter. The Dunn court constru\\u00e9d the Budinich opinion as holding that \\\"a decision on the merits is final, and the time for appeal begins running, even though questions concerning attorneys' fees remain open. One who waits for the award of fees accordingly may forfeit review of the merits.\\\" Id. at 312. The fact that fees were awarded but not quantified is \\\"an irrelevant detail.\\\" Id. Dunn observed that the rule will eliminate a case-by-case analysis, so that \\\"both the parties and the court of appeals . know with certainty when the time for appeal begins and ends.\\\" Id.\\nWe are persuaded that the rule established by the Budinich ease, and as clarified in Dunn, is- sound and will provide clear guidance for appellate practice in Utah. Our adoption of this rule will eliminate uncertainty about the propriety of filing a notice of appeal when attorney fee issues are unre solved and avoid problematic situations when a party may delay or never apply for a quantification of fees. Therefore, the appeal before us is from a final order under Rule 3, even though the issue of the amount of fees to be awarded was still pending before the trial court as of the date the notice of appeal was filed. We accordingly turn to the merits of Taylor's appeal.\\nTrust Agreement\\nTaylor contends the trial court erred in finding the divorce decree to be an integrated contract that contained the final and complete expression of the parties' agreement regarding the Cambric stock held in trust by Hansen. Taylor claims the decree is ambiguous in its allocation of trustee powers and that the trial court erred in turning to Utah Code Ann. \\u00a7 75-7-402 (1993) to interpret the decree's requirement that the trust contain \\\"normal and usual provisions [respecting] investing and preserving the assets and income of the .trust for [the children's benefit].\\\" Taylor asserts that the parties' intent in signing the stipulation to the divorce decree should have been considered by the trial court. Hansen, however, claims that because the decree is clear and unambiguous, the trial court correctly excluded parol evidence and determined the parties' intent from the language of the decree itself.\\nWe interpret a divorce decree according to established rules of contract interpretation. Cf. Whitehouse v. Whitehouse, 790 P.2d 57, 60 (Utah Ct.App.1990). In Ward v. Intermountain Farmers Association, 907 P.2d 264 (Utah 1995), the Utah Supreme Court reviewed the analysis that 'courts must use in determining whether a contract is ambiguous: \\\"When determining whether a contract is ambiguous, any relevant evidence must be considered.\\\" Id. at 268. A court must \\\"consider the writing in light of the surrounding circumstances.\\\" Id. However, if the court considers such evidence and determines that the language of the contract is unambiguous, \\\"then the parties' intentions must be determined solely from the language of the contract.\\\" Id. \\\"Language in a written document is ambiguous if the words used may be understood to support two or more plausible meanings.\\\" Whitehouse, 790 P.2d at 60 (emphasis added); see also R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah 1997) (\\\"'To demonstrate ambiguity, the contrary positions of the parties must each be tenable.' \\\" (citation omitted)). Finally, whether a contract is ambiguous is a question of law, which we review for correctness. See Interwest Constr. v. Palmer, 923 P.2d 1350, 1358-59 (Utah 1996).\\nThe trial court found that all matters relating to property division had been agreed to by the parties and were detailed in the Judgment and Decree of Divorce. The decree itself provides that Hansen, as Trustee, will manage the Trust for the \\\"exclusive use and benefit of [the children.]\\\" The decree further provides that Zion's Bank will become substitute trustee in the event of Hansen's death. Taylor is named only once in reference to the Trust: Hansen is to execute annual accountings to Taylor regarding the Trust's status.\\nTaylor's proposed trust agreement, in contrast, provides that cash dividends are to be immediately paid and distributed to the children's custodial parent/guardian. It also names Taylor as alternate trustee in the event that Hansen is unable to fulfill his trustee duties. Furthermore, it requires written consent of Taylor or the court prior to any sale, transfer, encumbrance, or disposition by the trustee of the stock. Last, it provides that rights of survivorship, should the children die before age 25 and leave no issue, will revert to Taylor.\\nThere is no support in the decree for Taylor's proposed trust agreement. The decree makes provision neither for payment of cash dividends to Taylor nor for reversion of the trust corpus to Taylor under rights of surviv-orship. Furthermore, nothing in the decree references the need for Taylor or the court to consent to any sale, transfer, encumbrance or disposition of stock by Hansen in his capacity as trustee. Accordingly, we do not find Taylor's assertions .regarding intent \\\"tenable.\\\" See R & R Energies, 936 P.2d at 1074. Because the decree is unambiguous in its assignment of duties to the trustee, the trial court correctly denied Taylor's motion to compel Hansen to execute her proposed trust agreement.\\nReimbursement of Child Care Costs\\nTaylor next argues the trial court erroneously denied her Motion for Reimbursement of Child Care Costs, claiming the court wrongly interpreted Utah Code Ann. \\u00a7 78-45-7.16 (1996) regarding the documentation required to prove child care expenses and to receive reimbursement therefor.\\nWe review a trial court's findings of fact under a clearly erroneous standard. State v. Pena, 869 P.2d 932, 935 (Utah 1994). \\\"For a reviewing court to find clear error, it must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination.\\\" Id. at 935-36. Statutory interpretation presents a question of law which we review for correctness. See Gull Labs., Inc. v. Utah State Tax Comm'n, 936 P.2d 1082, 1084 (Utah Ct.App.1997).\\nSection 78-45-7.16 of the Utah Code provides:\\n(2)(a) If an actual expense for child care is incurred, a parent shall begin paying his share . immediately upon presentation of proof of the child care expense....\\n,(b)(i) In the absence of a court order to the contrary, a parent who incurs child care expense shall provide written verification of the cost and identity of a child care provider to the other parent upon initial engagement of a provider and thereafter on the request of the other parent.\\n(3) [A] parent incurring child care expenses may be denied the right to receive credit.for the expenses or to recover the other parent's share of the expenses if the parent incurring the expenses fails to comply with Subsection (2)(b).\\nUtah Code Ann. \\u00a7 78-45-7.16 (1996) (emphasis added). The \\\"proof' of child care expenses that Taylor submitted was, in the trial court's words, merely \\\"a photocopied collage of various pieces of information,\\\" mostly consisting of handwritten dates without names or addresses, a typewritten notation that appeared to be a receipt but that had \\\"no reference as to its origin or for what the payment was made,\\\" a \\\"signed receipt from Sunshine Kids Daycare for July 9, 1996, in the amount of $27.00,\\\" and \\\"some other typewritten notation with no information at all, [other than] two amounts shown, $126.00 and $140.00.\\\" As proof of her full-time student status, Taylor submitted to the court a \\\"computer generated verification of information\\\" from her official University of Utah record. The verification form gave Taylor's name and social security number, and stated that she was enrolled full time between September 25, 1996, and December 13, 1996. ' The trial court found these combined documents to be insufficient to verify Taylor's actual child care expenses, stating that because the statute clearly required payment for those child care costs related to employment or education, \\\"it would seem inequitable that [Hansen] not at least be provided with some means by which he can verify the fact that they were so incurred, and that they were in fact 'reasonable.' \\\" Our review of the record ' persuades us there is ample support for such a finding.\\nThe trial court's requirements for what Taylor must do to verify her child care expenses are consistent with the need for \\\"written verification\\\" set forth in section 78-45-7.16. Thus, we disagree with Taylor's assertion that the court misinterpreted that statute. Furthermore, because Taylor's documentation failed to meet the verification requirements, the trial court did not abuse its discretion in denying Taylor's Motion for Reimbursement of Child Care Expenses. Finally, we note that the trial court's ruling provided that Taylor was not precluded from filing a future motion for the same or similar relief, so long as she complied with the court's established guidelines for verification. We accordingly affirm the trial court's denial of Taylor's motion.\\nRule 11 Sanctions\\nIn Barnard v. Sutliff, 846 P.2d 1229,1233-35 (Utah 1992), the Utah Supreme Court adopted a three-tiered standard of review for trial court rulings under Rule 11. Under this standard,\\n[t]he trial court's findings of fact are reviewed under the clearly erroneous standard. The trial court's ultimate conclusion that rule 11 was violated and any subsidiary legal conclusions are reviewed under the correction of error standard. And the trial court's determination as to the type and amount of sanction to be imposed is reviewed under the abuse of discretion standard.\\nId. at 1234. In addition, this court \\\"grant[s] a measure of discretion to the trial court's application of the legal principle to the facts.\\\" In re Adoption of R.N.L., 913 P.2d 761, 763 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 938-39 (Utah 1994)).\\nRule 11 of the Utah Rules of Civil Procedure provides, in pertinent part:\\nThe signature of an attorney or party constitutes a certification by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry[,] it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.... If a pleading, motion, or other paper is signed in violation of this rule, the court . shall impose upon the person who signed it, . an appropriate sanction, which may include . a reasonable attorney's fee.\\nUtah R.Civ.P. 11. In determining whether conduct violates Rule 11, the court must focus on whether the alleged violator's research into the law and facts surrounding a filing is \\\"objectively reasonable under all the circumstances.\\\" Sutliff, 846 P.2d at 1236; accord R.N.L., 913 P.2d at 763; Taylor v. Estate of Taylor, 770 P.2d 163, 171 (Utah Ct.App.1989).\\nIn this case, the trial court awarded sanctions on the basis that Taylor's \\\"behavior [was] absolutely unreasonable\\\" and that her motion to compel was \\\"improper and groundless.\\\" The court found Taylor's motion to compel \\\"wholly without any merit whatsoever in law or fact\\\" because her proposed trust agreement \\\"completely ignore[d] and deviated from the plain, unambiguous and clear language\\\" of the decree and her motion \\\"[brought] up marital property issues that for all legal purposes were completely disposed of by the Decree, . [and was an attempt] to couch an obvious petition to modify . as a Motion to Compel.\\\"\\nAfter reviewing the record, we are persuaded that the trial court's conclusion that Taylor violated Rule 11 is error. Taylor's request that the trial court interpret the terms of the divorce decree was neither mer-itless nor objectively unreasonable under the circumstances. Moreover, before the trial court's hearing on the motions, Taylor withdrew her alternative prayer for relief \\\"to amend the Judgment and Decree of Divorce.\\\" See Utah R.Civ.P. 15 (permitting parties to amend pleadings). Thus, Taylor's motion was not procedurally defective, and Hansen was not required to respond to a \\\"groundless\\\" claim; accordingly, Rule 11 sanctions were not warranted. We therefore reverse the trial court's Rule 11 award of attorney fees and costs to Hansen.\\nAttorney Fees\\nBoth parties raise additional arguments for an award of attorney fees. Taylor claims the trial court erred in denying her request for attorney fees and costs under Utah Code Ann. \\u00a7 30-3-3 (1995). Hansen, however, urges us to affirm the trial court's denial of Taylor's request and to award him attorney fees and costs incurred on appeal, pursuant to Rule 33 of the Utah Rules of Appellate Procedure. ,\\nSection 30-3-3 of the Utah Code \\\"grants trial courts the power to award attorney fees in divorce eases\\\" but the award \\\"must be based on evidence of the reasonableness of the requested fees, as well as the financial need of the receiving spouse.\\\" Crouse v. Crouse, 817 P.2d 836, 840 (Utah Ct.App.1991). Still, the decision whether or not to award attorney fees is within the sound discretion of the trial court, see id., and we review a trial court's denial of fees under an abuse of discretion standard; see Peterson v. Peterson, 818 P.2d 1305, 1310 (Utah Ct.App.1991).\\nBecause Taylor's motions were denied in their entirety, she was not entitled to an award of costs or fees, and the trial court did not abuse its discretion in refusing to award attorney fees or costs to Taylor under section 30-3-3. See Haumont v. Haumont, 793 P.2d 421, 427 (Utah Ct.App.1990) (denying attorney fees to wife who did not prevail on any issues and did not establish financial need on record).\\nRegarding Hansen's request for attorney fees incurred on appeal, \\\\ye note that although this court is authorized under Rule 33 of the Utah Rules of Appellate Procedure to award attorney fees in frivolo.us- appeals, we impose such sanctions only in egregious cases, \\\"lest there be an improper chilling of the right to appeal erroneous. lower court decisions.\\\" Porco v. Porco, 752 P.2d 365, 369 (Utah Ct.App.1988) (defining egregious cases as those in which appeal is \\\" 'obviously without any merit' \\\" and \\\" 'taken with no reasonable likelihood of prevailing' \\\" (citation omitted)). Because we do: not believe Taylor's action in bringing .this appeal reflects such conduct and because Taylor was successful in reversing the Rule 11 sanctions, we deny Hansen's request for attorney fees. See id. at 368-69.\\nCONCLUSION\\nWe hold that Taylor's appeal is from a \\\"final order\\\" under Rule 3 of th\\u00e9 Utah Rules of Appellate Procedure and that this court has jurisdiction to hear an appeal even when attorney fee issues remain unresolved. We further hold that the trial court did not abuse its discretion in: (1) denying Taylor's motion to compel Hansen to sign her proposed trust agreement; (2) denying Taylor's Motion for Reimbursement of Child Care Costs; or (3) refusing to award attorney fees to Taylor. Accordingly, we affirm the trial court's rulings on those issues. We do, however, reverse the imposition of Rule 11 sanctions and, in addition, deny Hansen's request for attorney fees on appeal.\\nDAVIS, P.J., and WILKINS, Associate P.J., concur.\\n. Rule 6-404 provides, in pertinent part:\\n(1) Proceedings to modify a divorce decree shall be commenced by the filing of a petition to modify in the original divorce action. Service of the petition and summons upon the opposing party shall be in accordance with the requirements of Rule 4 of the Utah Rules of Civil Procedure. No request for a modification of an existing decree shall be raised by way- of an order to show cause.\\nUtah Code Jud. Admin. R6-404(l).\\n.Rule 3 provides, in pertinent part:\\n(a) An appeal may be taken from a district or juvenile court to the appellate court with jurisdiction over the appeal from all final orders and judgments, except as otherwise provided by law, by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.\\nUtah R.App.P. 3(a).\\n.We note that this question is not resolved by Rule 4(b), which provides that when certain types of postjudgment motions are brought, a notice of appeal filed after the motion but prior to its disposition is ineffective, or by Rule 4(c), which provides that a notice of appeal filed after the announcement of a decision but before its entry will be treated as though filed after such entry and on the day thereof. See Utah R.App.P. 4.\\n. A party may wish to deliberately postpone these matters pending a final determination of the merits on appeal.\\n. We note that the trial court appropriately looked to Utah Code Ann. \\u00a7 75-7-402 (1993) to determine \\\"normal and usual\\\" trust provisions. Section 75-7-402(1) provides that \\\"a trustee has the power to perform, without court authorization, every act which a prudent man- would perform for the purposes of the trust.\\\" Id. \\u00a7 75-7-402(1). Furthermore, section 75-7-402(2) states that, a trustee \\\"has a duty to act with due regard to his obligation as a fiduciary.\\\" Id. \\u00a7 75-7-402(2). Finally, section 75-7-402(3) generally allows a trustee to hold and dispose of assets for the benefit of the trust. See id. \\u00a7 75-7-402(3).\\n. Rule 33 provides:\\n(a) [I]f the court determines that a motion made or appeal taken under these rules is either frivolous or for delay, it shall award just damages, which may include single or double costs . and/or reasonable attorney fees, to the prevailing party....\\n(b) . For the purposes of these rules, a frivolous appeal, motion, brief, or other paper is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.\\nUtah R.App.P. 33.\"}"

utah/11822434.json

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+"{\"id\": \"11822434\", \"name\": \"Thomas S. \\\"Steve\\\" and Nancy C. BROWN, Dennis K. Cloward, and Joseph T. Bowers, Plaintiffs and Appellants, v. SANDY CITY BOARD OF ADJUSTMENT; and Sandy, a political subdivision of Utah, Defendants and Appellees\", \"name_abbreviation\": \"Brown v. Sandy City Board of Adjustment\", \"decision_date\": \"1998-03-26\", \"docket_number\": \"No. 970156-CA\", \"first_page\": \"207\", \"last_page\": \"213\", \"citations\": \"957 P.2d 207\", \"volume\": \"957\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:56:55.185638+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BENCH, BILLINGS and JACKSON, JJ.\", \"parties\": \"Thomas S. \\u201cSteve\\u201d and Nancy C. BROWN, Dennis K. Cloward, and Joseph T. Bowers, Plaintiffs and Appellants, v. SANDY CITY BOARD OF ADJUSTMENT; and Sandy, a political subdivision of Utah, Defendants and Appellees.\", \"head_matter\": \"Thomas S. \\u201cSteve\\u201d and Nancy C. BROWN, Dennis K. Cloward, and Joseph T. Bowers, Plaintiffs and Appellants, v. SANDY CITY BOARD OF ADJUSTMENT; and Sandy, a political subdivision of Utah, Defendants and Appellees.\\nNo. 970156-CA.\\nCourt of Appeals of Utah.\\nMarch 26, 1998.\\nJ. Craig Smith and Scott M. Ellsworth, Salt Lake City, for Appellants.\\nJody K. Burnett, Salt Lake City, Steven C. Osborn, Sandy, for Appellees.\\nBefore BENCH, BILLINGS and JACKSON, JJ.\", \"word_count\": \"3967\", \"char_count\": \"24571\", \"text\": \"OPINION\\nJACKSON, Judge:\\nThis appeal comes to us from the trial court's order granting summary judgment to the Sandy City Board of Adjustment (Board). The trial court affirmed the Board determination that Sandy City's interpretation of the Sandy City Development Code (Code) prohibiting leases of less than thirty days in residential zones was correct. We reverse.\\nBACKGROUND\\nThomas and Nancy Brown, Dennis Clo-ward, and Joseph Bowers (the owners) owned homes in Sandy City. The homes owned by the Browns and Cloward were in areas zoned R-l-8 Residential. Bowers's home was in an area zoned R-l-10 Residential.\\nBoth R-l-8 and R-l-10 residential zones permit the use of single-family dwelling structures, Sandy City, Utah, Dev.Code \\u00a7 15-7-5(b)(2), 15-7-3(b)(2) (1996), and contemplate the establishment of \\\"a residential environment . that is characterized by moderate densities, . a minimum of vehicular traffic and quiet residential neighborhoods favorable for family life,\\\" id. \\u00a7 15-7-3(a), 15-7-5(a). The Code further states that:\\nNo building or part thereof or other structure shall be erected, altered, added to or enlarged, nor shall any land, building, structure, or premises be used, designated, or intended to be used for any purpose or in any manner other than is included among the uses hereinafter listed as permitted or conditional uses in the district in which such building, land or premises are located.\\nId. \\u00a7 15-6-2.\\nThe Code defines a single-family dwelling as follows: \\\"Dwelling, Single Family. A detached housing unit within a structure with kitchen and sleeping facilities, designed for occupancy by one family, excluding accessory apartments and extended living areas which may be approved as provided for in [this Code].\\\" Id. \\u00a7 15-2-2. The Code also defines a family as \\\"[a]n individual or two or more persons related by blood, marriage or adoption, or a group not to exceed four unrelated persons living together as a single housekeeping unit.\\\" Id.\\nAll the owners' homes were single-family dwellings as defined by the Code. Each of the owners leased their homes to families for periods of several days to several months.\\nIn December 1995, the Sandy City Community Development Staff (staff) began interpreting the Code to prohibit rental of any single-family dwelling for fewer than thirty days. Accordingly, the staff told the owners that any rental of their single-family dwelling for fewer than thirty days in the R-l-8 or R-1-10 zones was prohibited and asked them to refrain from any further short term rentals. The owners appealed the staffs interpretation of the Code to the Board pursuant to Utah Code Ann. \\u00a7 10-9-704(1)(a)(i) (1996) and Sandy City, Utah, Dev.Code \\u00a7 15-5-5(A)(1) (1996). Applying a \\\"rational basis\\\" test on review, the Board upheld the staffs interpretation of the ordinance. The owners then filed an appeal of the Board's determination to the district court. On cross-motions for summary judgment, the district court entered summary judgment against the owners, upholding the Board's determination.\\nThe owners filed this appeal.\\nISSUES\\nThere are two interrelated issues for review. The first issue is whether the Board used the proper standard of review in its review of the staff interpretation of the Code and whether the standard requires us to give any deference to the Board's determination. The second issue for review is whether the Board erred when it determined that leasing of a single-family dwelling for a period of fewer than thirty days is prohibited in the R-1-8 and R-l-10 zones.\\nANALYSIS\\nI. Board Review of Staff Interpretation\\nThe question of what standard a board of adjustment must apply in reviewing staff interpretation is a matter of first impression with this court. When the Board reviewed the staffs interpretation of the zoning ordinance, it applied a \\\"rational basis\\\" test. Under this \\\"rationality\\\" test, the owners were required to \\\"establish that the staff had no rational basis for its\\\" interpretation that residential zones excluded , leasing single-family dwellings for a period shorter than thirty days. Pointing to Utah Code Ann. \\u00a7 10-9-704 (1996), the owners argue that the proper standard of review was a correctness standard.\\nIt is clear that \\u00a7 10-9-704 requires the Board to review the staffs interpretation for correctness, giving it no deference. Although \\\"[t]he person or entity making the appeal has the burden of proving that an error has been made,\\\" Utah Code Ann. \\u00a7 10-9-704(3) (1996), the person need show only an \\\"error in an[] order, requirement, decision, or determination made by an official in the administration or interpretation of the zoning ordinance.\\\" Id. \\u00a7 10 \\u2014 9\\u2014704(1)(a)(i). There is no requirement that the Board give any deference to the administrator or executive official making the determination.\\nSandy contends that because board members are not legally trained individuals, we need not \\\"impose rigid technical requirements upon their procedure.\\\" It further argues that, because the Board was not comprised of lawyers, the Board was \\\"not intuitively aware of the significance of terms such as \\\"'reasonable [or] rational.'\\\" Thus, the fact that they used the rational basis standard of review was \\\"really immaterial . [s]o long as the procedure afforded [the owners] was 'orderly, impartial, judicious and fundamentally fair.' \\\"\\nWe cannot agree. Athough many individuals not trained in legal procedure may not understand the concept of a standard of review, it is clear to this court that a person of ordinary intelligence can easily understand the difference between the questions, \\\"Was the staffs interpretation correct?\\\" and 'Was the staffs interpretation rational?\\\" It is also clear to us that the Board used the rational basis standard in its review of the staffs interpretation.\\nContrary to Sandy's contention, the fact that the Board used the rational basis test is material to the outcome of the deci sion. First, a rational interpretation may be one that, although not completely correct, has a basis in reason. Thus, in this case the Board may have had some rationale to conclude that short-term rental was precluded by the zoning ordinance, though that rationale may have been incorrect. Second, the Board's scope of review necessarily affects the scope of review of this court. If the Board's standard of review is to simply determine whether the staffs interpretation was rational, we would review the Board's decision to determine whether the Board acted illegally, see Utah Code Ann. \\u00a7 10-9-1001(3)(b) (1996), in concluding that the decision was rational. On the other hand, if the Board's standard of review is a correctness review, we review the Board's decision to determine whether the Board acted illegally in concluding that the decision was correct.\\nII. Rental of Single-Family Dwelling for Periods Shorter than Thirty Days\\nThe sole issue for review on the merits is whether the Board's affirmation of the staffs interpretation of the Code to prohibit leasing of property for less than thirty days is correct. The question is one of interpretation of an ordinance, and, thus, we review it under a correctness standard. Because the Board's standard of review as to the staff interpretation was also a correctness standard, we review the Board's determination as follows: whether the Board correctly concluded that the staffs interpretation of the ordinance was correct.\\n\\\"In interpreting the meaning of . [o]rdinance[s], we are guided by the standard rules of statutory construction.\\\" Brendle v. City of Draper, 937 P.2d 1044, 1047 (Utah Ct.App.1997). However, \\\"because zoning ordinances are in derogation of a property owner's common-law right to unrestricted use of his or her property, provisions therein restricting property uses should be strictly construed, and provisions permitting property uses should be liberally construed in favor of the property owner.\\\" Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 606 (Utah Ct.App.1995). We first look to the plain language of the ordinance to guide our interpretation. See Brendle, 937 P.2d at 1047. Only if the ordinance is ambiguous need we look to legislative history to ascertain legislative intent. See id.\\nAccordingly, we first look at the language of the Code. The Code permits use of a \\\"housing unit within a structure with kitchen and sleeping facilities, . for occupancy by one family.\\\" Id. \\u00a7 15-2-2. A family is \\\"[a]n individual or two or more persons related by blood, marriage or adoption, or a group not to exceed four unrelated persons living together as a single housekeeping unit.\\\" Id. The Code prohibits a building to \\\"be used, designated, or intended to be used for any purpose or in any manner other than is included among the uses . listed as permitted or conditional uses.\\\" Id. \\u00a7 15-6-2. Thus, the ordinance unambiguously requires that a single-family dwelling located in the two residential zones at issue be used as a building for occupancy by either related people or no more than four unrelated people operating as a household.\\nBoth parties agree that the Code never places an express durational limit on the use of any property. Even so, Sandy submits two arguments that, despite the absence of a durational limitation on occupancy of single-family dwellings, short-term leases are prohibited. It argues that (1) the Code does not specifically permit short-term leases of property and (2) the short-term lease of residential property is inconsistent with the purposes of residential zoning.\\nThe first objection is untenable. The Code specifically permits use of a dwelling for occupancy by a single family. Thus, if a single family occupies a home, the structure is being used as permitted. However, Sandy contends that, because the Code does not specifically permit occupancy by a single tenant family for less than thirty days, occupancy by a single tenant family for less than thirty days is proscribed by the ordinance. We are not willing to import such a restriction. The Code does not limit the permitted use by referencing the type of estate the occupying family holds in the property or the duration of the occupancy. Thus, it is irrelevant what type of estate, if any estate at all, the occupying family has in the dwelling, i.e., whether the family holds a fee simple estate, a leasehold estate, a license, or no legal interest in the dwelling. It is equally irrelevant whether the occupying family stays for one year or ten days. The only relevant inquiry is whether the dwelling is being used for occupancy by a single family; if it is, the ordinance has not been violated. Sandy's argument, taken to its logical conclusion, would mean that the staff could restrict any use without limitation by simply arguing that the use was one not specifically mentioned in the general permitted use provisions. For instance, it would allow the staff to prohibit an owner from leasing the property under any conditions because the ordinance does not specifically permit occupancy by a single family leasing the dwelling. It would also allow the staff to prohibit tenancy-in-common time-share arrangements since the ordinance does not permit occupancy by a single family not owning as joint tenants.\\nSandy's second argument is more substantial. It contends that, given the express purpose of the residential zones, to establish \\\"a residential environment\\\" and \\\"quiet residential neighborhoods favorable for family life,\\\" Sandy City, Utah, Dev.Code \\u00a7 15-7-3(a), 15-7-5(a) (1996), the Board was correct in concluding that short-term property rental was prohibited by the ordinance. Sandy, citing Ewing v. City of Carmel-by-the-Sea, 234 Cal.App.3d 1579, 286 Cal.Rptr. 382 (1991), argues that it has the authority to prohibit transient occupancy in residential zones because transient occupants erode the residential quality of a neighborhood. See, e.g., id., 286 Cal.Rptr. at 388 (stating \\\"[transient] rentals undoubtedly affect the essential character of a neighborhood and the stability of a community\\\"). The Ewing appeal involved a zoning ordinance that specifically prohibited transient occupancy. See id. at 383-84. The Ewing plaintiffs argued that their civil rights were violated because Car-mel-by-the-Sea had passed an ordinance prohibiting leasing of residential property for less than thirty days to transient renters. See id. In this case, the owners do not dispute that Sandy could pass a similar ordinance, cf., e.g., Town of Alta v. Ben Hame Corp., 836 P.2d 797, 800 (Utah Ct.App.1992) (citing ordinance prohibiting short-term leas ing), they argue only that the ordinance as it now reads does not prohibit such a practice. Thus, they argue that Ewing is not relevant to this case. We agree.\\nDespite Sandy's ability to pass an ordinance to restrict short-term leasing, as discussed above, we must construe existing zoning ordinances strictly against the city. Thus, we must conclude that short-term leases of residential properties are not prohibited by the zoning ordinance. Sections 15-7-3(a) and 15-7-5(a) of the Code \\\"represent[ ] [only] the broad goal sought to be achieved by the [city] in enacting regulations governing\\\" uses of properties in these zones. Patterson, 893 P.2d at 610. Through the purpose declaration, Sandy explained what its goal was in establishing the residential zones. It then enumerated specific regulations to meet that goal. \\\"By satisfying the actual regulations enumerated in [\\u00a7\\u00a7 15 \\u2014 Y\\u20143(b)(2) and 15 \\u2014 7\\u20145(b)(2) ] the [use of the properties] has met the legal requirements of th[ose] section[s],\\\" id. (emphasis added), and, thus, met the general purpose of the statute. Although we recognize that short-term leases may disrupt the residential environment of a neighborhood in some instances, by failing to prohibit short-term leases, Sandy City has implicitly determined that such practices are conducive to a residential environment. In other words, \\\"[w]e will not find a violation of law simply because [the permitted use may appear] inconsistent with the general intent statement . when [the use] is in compliance with the substantive provisions of the ordinance.\\\" Id.\\nAccordingly, we conclude that the Board erred when it concluded that the staff \\\"rationally\\\" interpreted the zoning ordinance to prohibit leasing of property for less than thirty days in the residential zones.\\nCONCLUSION\\nWe conclude that the Board incorrectly applied a \\\"rational basis\\\" standard of review when it reviewed the staffs interpretation of the Code. We also conclude that the Board committed legal error when it affirmed the staffs interpretation of the Code prohibiting short-term leases of single-family dwellings in residential zones. Accordingly, we reverse.\\nBILLINGS, J., concurs.\\n. Sandy also cites a similar provision found elsewhere in the Code to establish that the ordinance prohibits uses not authorized on zoned lands. The provision states:\\nNo land shall be used or occupied and no building or structure shall be designed, erected, altered, used or occupied for any use except those uses specifically permitted on the land upon which the building or structure is located or erected or use established as permitted in the regulations for the district in which said land is located.\\nSandy City, Utah, Dev.Code \\u00a7 15-21-11 (1996). Although there are slight differences in the wording of these two sections, the effect of each is the same in the context of this case.\\n. The letters sent to the owners identified these homes as \\\"transitory lodging facilities.\\\" Although the use of this term could be construed as an indication that Sandy had determined that the facilities were being used as hotels or boarding facilities, no such determination was made before or during the hearing. The staff apparendy used the terms \\\"transitory lodging facility\\\" and \\\"place of public accommodation\\\" to indicate a home that had been leased for fewer than thirty days. Further, Sandy concedes that the sole reason for its action on these properties was that they were being leased for periods less than 30 days.\\n. Although the board members variously referred to their duty to interpret the statute, in several comments by board members the fact that they were making a determination as to the reasonableness of the interpretation, rather than the correctness of the interpretation, was clear. The motion upon which the Board voted was \\\"that the Sandy City staff did not err and that there is substantial, rationale] basis for the City's determination that the use of a dwelling as a place of public accommodation, such as renting it on a daily or weekly basis, is not an allowed use in a single[-]family R-l zone.\\\" The board member making the motion further stated, \\\"it is very rational[] to me, being a member of a family, that these nightly rentals are not housekeeping units.\\\"\\n. Both parties agree that this is the sole issue for review. The issue before the Board was not whether the particular use of the specific properties involved in this case was properly determined to be in violation of the Code. Thus, although there is evidence in the record relating to the nature of the individuals leasing the properties, i.e., whether they were related or not and the numbers of people renting a house at one time, and the condition of the properties at issue, that evidence is irrelevant to our determination.\\n. The parties argued at considerable length in their briefs about the level of deference the Board's interpretation should be given on review. Utah Code Ann. \\u00a7 10-9-1001 states that in reviewing land use decisions \\\"[t]he courts shall . determine only whether or not the decision is arbitrary, capricious, or illegal.\\\" Utah Code Ann. \\u00a7 10-9-100l(3)(b) (1996). Although this statutory provision expressly applies only to the district court, \\\"the standard for our review of [a] [b]oard's decision is the same standard established in the Utah Code for the district court's review.\\\" Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 603 (Utah Ct.App.1995).\\nThere are times where deference is due the Board's decision. For example, we have explained that a board of adjustment's \\\"actions are accorded substantial deference and will be rejected on appeal only if they are so unreasonable as to be arbitrary and capricious or if they violate the law.\\\" Id. We have also explained that \\\"we will not substitute our judgment on matters of public policy normally left to [a] [bjoard's discretion.\\\" Id. at 604. Thus, a board's decision to permit or reject a proposed land use is entitled to deferential treatment to the extent that it will be affirmed if the evidence is adequate \\\" 'to convince a reasonable mind to support' ' the decision. Id. at 604 n. 6 (citation omitted).\\nHowever, there are times when no deference is due. For example, \\\"whether or not [a] [bjoard's decision is illegal depends on a proper interpretation and application of the law. These are matters for our determination, and we accord no deference to the district court or [a] [bjoard.\\\" Id. at 604. Thus, if a board determines that it will allow a particular land use, we will not defer to that decision where the board failed to base the decision on evidence that could reasonably support the use, or where the decision was made based on an incorrect understanding or application of a statute or ordinance, even if the incorrect understanding or application was reasonable or consistent with prior board application.\\nIt is true that some other jurisdictions give some discretion to boards of adjustment on interpretations of the zoning ordinances which they administer. However, the law in Utah is clear that interpretation of the meaning of zoning ordinances by a board of adjustment is not entitled to deference. See id. at 604; Town of Alta v. Ben Hame Corp., 836 P.2d 797, 800-01 (Utah Ct.App.1992).\\n. Although on a cursory reading, our decision in Ben Hame, 836 P.2d at 797, may appear inconsistent with our holding in this case, it clearly is not. In Ben Hame we concluded that use of a building \\\"as a 'lodging facility' \\\" was \\\"not an accessory use customarily incidental to the main use\\\" of a single-family dwelling. Id. at 802. Our decision was largely premised on two grounds: First, the zoning ordinance in question defined permitted use of single-family dwellings to exclude use of the dwellings as \\\"hotels, apartment hotels, boarding houses, lodging houses, mobile homes, tourist courts or apartment courts,\\\" id. at 799 (emphasis omitted); second, Ben Hame conceded that the building was being used as a lodging facility, i.e., the home was advertised to accommodate 12 to 20 people, provide an on-site chef, and provide airport shuttle services. Id. at 799, 802.\\nIn this case, the zoning ordinance does not prohibit use of a single-family dwelling as a lodging facility. Even if it did prohibit such use, the owners have not conceded that the homes are used as lodging facilities, and the single question before us is whether the Board correctly concluded that all short-term leases are prohibited by the ordinance. Thus, the sole issue on review before us is whether one can imply dura-tional restrictions on the use of a single-family dwelling. This issue was the sole issue of review before the Board as well.\\n. This is not a case where the permitted use is wholly inconsistent with the stated purpose \\u2014 one may lease property to another for a short term and still maintain the residential quality of a neighborhood.\\n. Sandy concedes that \\\"[i]f a single[-]family residence were rented for two weeks to a traditional family \\u2014 father, mother and accompanying children \\u2014 the use would nonetheless be prohibited as a rental for 30 days or less.\\\" Although short-term leases to traditional families may still disrupt a neighborhood, it seems to be less disruptive than running a hotel might be.\\nThis concession also points to what seems to be the pragmatic reason for this case \\u2014 that the long-term residents do not like the type of people who lease the homes on a short-term basis. However, Sandy is not arguing that specific violations, besides the short-term nature of the leases, have been alleged and that Sandy has determined the owners have therefore violated the zoning ordinances. Rather, Sandy is only arguing that the interpretation of the statute prohibiting all short-term leases is correct.\\n. Our conclusion is consistent with the case law of other jurisdictions. See City of Portland v. Carriage Inn, 67 Or.App. 44, 676 P.2d 943, 945 (1984) (holding transient occupancy permitted in zone when no durational requirement was expressed); Strauss v. Zoning Hearing Bd., 147 Pa.Cmwlth. 603, 608 A.2d 1105, 1106, 1109 (1992) (holding students were \\\"family\\\" despite short duration of lease).\\n. Because our resolution of this issue is disposi-tive of the case, we need not consider the owners' remaining arguments.\"}"

utah/11937000.json

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+"{\"id\": \"11937000\", \"name\": \"UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. 6200 SOUTH ASSOCIATES, a General Partnership; H. Roger Boyer; Kem C. Gardner; and Valley Mortgage Corporation, Beneficiary, Defendants and Appellants\", \"name_abbreviation\": \"Utah Department of Transportation v. 6200 South Associates\", \"decision_date\": \"1994-03-23\", \"docket_number\": \"No. 920268-CA\", \"first_page\": \"462\", \"last_page\": \"470\", \"citations\": \"872 P.2d 462\", \"volume\": \"872\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:26:08.040485+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BILLINGS, DAVIS and GREENWOOD, JJ.\", \"parties\": \"UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. 6200 SOUTH ASSOCIATES, a General Partnership; H. Roger Boyer; Kem C. Gardner; and Valley Mortgage Corporation, Beneficiary, Defendants and Appellants.\", \"head_matter\": \"UTAH DEPARTMENT OF TRANSPORTATION, Plaintiff and Appellee, v. 6200 SOUTH ASSOCIATES, a General Partnership; H. Roger Boyer; Kem C. Gardner; and Valley Mortgage Corporation, Beneficiary, Defendants and Appellants.\\nNo. 920268-CA.\\nCourt of Appeals of Utah.\\nMarch 23, 1994.\\nRobert S. Campbell (argued), Kevin Egan \\u25a0Anderson, Mark A. Larsen, Campbell, Maack & Sessions, Salt Lake City, for defendants and appellants.\\nJan Graham, State Atty. Gen., Donald S. Coleman, Chief Physical Resources Div. (argued), Salt Lake City, for plaintiff and appel-lee.\\nBefore BILLINGS, DAVIS and GREENWOOD, JJ.\", \"word_count\": \"4621\", \"char_count\": \"28871\", \"text\": \"OPINION\\nGREENWOOD, Judge:\\nAppellant, 6200 South Associates (Associates), appeals the trial court's Judgment of Just Compensation determining the fair market value of a portion of Associates's land condemned by the State and severance damages to the remaining property. Associates claims the trial court made erroneous rulings with respect to the scope of cross-examination and the admissibility of certain evidence and that both the individual and cumulative effects of these errors warrant reversal for a new trial. We affirm.\\nFACTS\\nOn February 5, 1988, the Utah Department of Transportation (UDOT) filed a complaint in this action to condemn 1.73 acres of a 21.23 acre unimproved parcel of land (the property) owned by Associates, for construction of a freeway interchange and connecting road to Wasatch Boulevard in Salt Lake City. The property, roughly rectangular in shape, is located in what is now the southeast quadrant of the 1-215 freeway interchange (commonly referred to as the Knudsen's Corner Interchange) located just east of Holla-day Boulevard and south of 6200 South. This was the third condemnation action brought by UDOT or its predecessor, the Utah State Road Commission, to condemn parcels of and access rights to the property. The first two condemnation actions occurred in 1963 and 1973. At that time, the State intended to construct a \\\"diamond\\\" interchange at the same location as the current interchange. Plans for the diamond interchange included construction of a frontage road along the western edge of the property, and relocation and widening of a portion of 6200 South so that it would align with the interchange. If the diamond interchange had been constructed as planned, the property would have been accessible from the west by the frontage road, from the north by 6200 South, and from the east by 3000 East.\\nIn 1986, the Federal Highway Administration approved a design change sought by UDOT for the Knudsen's Corner Interchange. UDOT was concerned about the capacity and accompanying safety problems of a diamond interchange due to revisions in traffic volume estimates for future years and determined that an \\\"urban\\\" interchange would be better suited to handle traffic anticipated on this interchange. An urban interchange permits smoother and freer movement of traffic in peak hours.\\nThe change in plans resulted in this third condemnation action in which UDOT acquired three parcels of land totalling 1.73 acres, along with all access rights to the property from the west and north. The new urban design interchange plans eliminated the frontage road and extended the nonac-cess line along 6200 South along the full length of the property. As a result, the property is currently accessible only from 3000 East.\\nAt trial, the sole matter before the jury was the appropriate compensation due Associates for the condemned property. The amount of compensation included two separate, but related, components \\u2014 the value of the taken property itself and severance compensation for the effect of the loss of access rights on the remaining parcel of land. This determination was made by comparing the value of the property before and after the taking. At an in limine hearing, the trial court ruled that the property's appraisal in its \\\"before\\\" condition should assume that the diamond interchange was in existence, and therefore that there was access to the property from the north, west, and east. The basis for this in limine order was that the plans for the diamond interchange had been finalized, and Associates was thus entitled to rely on this fact at the time it purchased the property in 1980.\\nAt trial, Associates's experts claimed that the fair market value of the land taken was between $294,069 and $324,230, while UDOT's experts placed the condemned land's fair market value at between $233,746 and $282,800.- The main point of contention, however, concerned the value of Associates's lost access to the remaining property. Associates's experts alleged that the value of the loss of access to the remaining property was between $1,189,127 and $1,316,534. UDOT, on the other hand, argued that the property actually benefitted by the changed design of the interchange due to the smoother flow of traffic and the intersection created at 3000 East. Accordingly, UDOT asserted that damages for lost access rights to the property should be measured by the cost to improve access roads from 3000 East. The State estimated this cost at between $28,800 and $30,870. The jury found the fair market value of the taken property to be $271,447.20 and damage to the remaining property caused by the loss of access to be $144,-607.60.\\nAt the conclusion of the trial, Associates filed a Motion for Additur or in the Alternative a New Trial. The trial court denied the motion, and this appeal followed. Associates has framed the four issues on appeal as follows: (1) Did the trial court err when it refused to strike impermissible testimony concerning an alleged offer to purchase a portion of the property? (2) Did the trial court err when it permitted UDOT's expert to testify about access to other freeway interchange properties without establishing the requisite foundation of comparability? (3) Are hypothetical questions to expert witnesses on cross-examination limited to facts in evidence in the case? (4) Did the trial court err by permitting UDOT to introduce evidence \\u2014 allegedly inconsistent with the in li-mine ruling \\u2014 regarding the flaws of the approved diamond interchange?\\nSTANDARD OF REVIEW\\nIn reviewing questions of admissibility of evidence at trial, we employ two standards of review. State v. Horton, 848 P.2d 708, 713 (Utah App.), cert. denied, 857 P.2d 948 (Utah 1993). With respect to the trial court's selection, interpretation, and application of a particular rule of evidence, we apply a correction of error standard. Id. (citing State v. Thurman, 846 P.2d 1256, 1268-72 (Utah 1993)). When the rule of evidence requires the trial court to balance specified factors to determine admissibility, \\\"[a]buse of discretion or reasonability is the appropriate standard.\\\" Id. (citing Thurman, 846 P.2d at 1270 n. 11). Further, even where error is found, reversal is appropriate only in those cases where, after review of all of the evidence presented at trial, it appears that \\\" 'absent the error, there is a reasonable likelihood that a different result would have been reached.' \\\" Belden v. Dalbo, Inc., 752 P.2d 1317, 1319 (Utah App.1988) (quoting State v. Speer, 750 P.2d 186, 189 (Utah 1988)); accord Joseph v. W.H. Groves Latter Day Saints Hosp., 7 Utah 2d 39, 44, 318 P.2d 330, 333 (1957).\\nANALYSIS\\nAdmissibility of Offers to Purchase\\nJohn C. Brown, an appraisal witness for Associates, stated that \\\"all of the developable access to the subject property, [has] been acquired by the government in the action. . It is a piece of property that no longer has any commercial development potential.\\\" UDOT rebutted this testimony with testimony by its expert appraisal witness, David VanDrimmelen, who claimed that there were other comparable properties that had been developed commercially. Further, he said that he knew this property could be used for commercial purposes because one of Associates's partners had told him that Chevron was interested in purchasing some of the property in the northeast corner of the site for a convenience store. VanDrimmelen stated that Chevron had offered to purchase the land for $18 per square foot if there were access to the property from 6200 South, and for $10-12 per square foot if the access were via 3000 East. These figures were from 250% to 450% higher than any appraisal of the property presented during trial.\\nAssociates promptly objected to VanDrimmelen's testimony as an inadmissible offer to purchase, and the trial court sustained the objection, ruling that \\\"the portion of the answer that related to a negotiated offer will be stricken from the record.\\\" Associates renewed the objection outside the presence of the jury a short while later, arguing that \\\"the entire area ought to go out, not just the area with regard to the offers, but \\u2014 specifically, as to those, it ought to\\u2014 but also the entire area of examination ought to go out.\\\" The court declined to strike all of VanDrimmelen's testimony regarding commercial development of comparable properties, and instructed the jury:\\nTHE COURT: There has been some testimony given by the witness now on the stand regarding statements made by a Mr. Jacobsen, and confirmed by Chevron Oil, regarding the value of the questioned property per square foot. Specifically, there was a reference of $18 per square foot with access, $12 per square foot without access. Supposedly, that value was confirmed by a representative of Chevron Oil. Disregard the portion of the expert witness' testimony that referred to that subject matter.\\n(Emphasis added.)\\nAssociates asserts that the trial court only ordered the dollar amount of the offer to be stricken, arguing that if the alleged offering price is inadmissible, then the fact of the offer, and related evidence, is equally inadmissible. Associates has not cited any authority for this position and there appears to be at least some contrary case law. In City of St. Louis v. Vasquez, 341 S.W.2d 839 (Mo.1960), the court distinguished between inquiries and offers to purchase property. The court ruled that an inquiry is \\\"not the equivalent of an offer to buy, and was not inadmissible for the reasons . that an offer to buy is inadmissible.\\\" Id. at 848. The basis for this conclusion was that\\n[t]his testimony [inquiries made by persons who wanted to purchase the property], indicating an active interest in the land in question on the part of prospective buyers, was relevant on the question of the general desirability of and demand for this land. An ordinarily prudent person would take into consideration the demand or lack of demand for the land, as a basic element in reaching a conclusion, upon the basis of other evidence, as to its fair market value.\\nId.; see also Commonwealth v. Turner, 497 S.W.2d 57, 59-60 (Ky.App.1973) (while evidence of prices or terms of offers is not admissible, inquiries concerning possible purchase or lease of property were admissible to show that property was suitable for business purposes); Kelly v. Redevelopment Auth., 407 Pa. 415, 180 A.2d 39, 45 (1962) (\\\"Testimony that offers were made for condemned property is admissible to show that the same is desirable and marketable.\\\").\\nHowever, we need not decide whether an offer to purchase property is admissible for the limited purpose of establishing interest in the property for a particular use as this is not the situation presented in the instant case. After careful review of the record and the trial court's statements and orders, we conclude that the court struck from the record all of VanDrimmelen's testimony concerning Associates's employee's conversation with the Chevron representative about an offer to purchase the property. \\\"[T]he rule [is] that [an] appellant cannot complain of testimony stricken from the record as prejudicial.\\\" Baldwin v. Mittry, 61 Idaho 427, 430, 102 P.2d 643, 646 (1940); see also State v. Humphrey, 793 P.2d 918, 925 (Utah App.1990) (\\\"We find the trial court's immediate admonition that the statement be stricken and that no further reference be made to the statement, rendered harmless the otherwise improper testimony.\\\"). Therefore, we conclude that Associates's first claim of error is without merit.\\nFoundation for Admission of Aerial Photographs\\nBryce Clinger, an appraisal witness for UDOT, testified that his evaluation of the property's fair market value considered whether access to the property after condemnation was sufficient for the type of development he thought feasible. Accordingly, he surveyed other locations along major traffic routes and interstate freeways in the Salt Lake valley to find properties with similar access restrictions and compared their development with his proposals for development of the subject property. Clinger photographed six of these properties from an airplane and testified about similarity-of-aecess at trial. Throughout his testimony, Clinger emphasized that the photos he used in making a decision about the subject property's highest and best use represented properties with similar access restrictions \\u2014 -not comparable sales.\\nAssociates objected to admission of the six photos, claiming that \\\"[tjhere is no foundation laid to show . any relevancy at all to the subject property, either in terms of the geography of the area \\u2014 of the location of the property, or the dynamics of the market in that area. There is no foundation laid to show any transaction or sale affected by access restriction.\\\" The trial court overruled the objection, stating that it went to weight, not to admissibility, and admitted the photos into evidence because they were the basis, in part, of the expert witness's opinion.\\nOn appeal, Associates claims that it was error to admit the six aerial photographs of properties located near interchanges with access restrictions similar to the property because .there was no showing that the properties were \\\"comparable\\\" in every way to the property at issue in this case. The requirement of \\\"comparability\\\" is set forth in Redevelopment Agency v. Mitsui Investment, Inc., 522 P.2d 1370 (Utah 1974):\\nReal estate has always been regarded as unique because no two parcels can be exactly alike. It is certainly not to be supposed that there will be found sales which are identical as to time, location, quantity and various characteristics of the property. The requirement is that it meet the test of \\\"reasonable comparability.\\\" That is, that these factors exist in sufficient similarity that the sale can fairly be regarded as having some probative value in arriving at a proper appraisal of the property.\\nId. at 1373 (emphasis added).\\nWhile Mitsui recites the well established law with respect to evidence of comparable sales, UDOT's expert witness introduced the six photographs only as evidence of development of other properties with similar access limitations and thus Mitsui is arguably inapplicable. Even assuming, however, that the Mitsui standard does apply, the expert's testimony satisfied that standard by establishing \\\"reasonable comparability\\\" of access and configuration. Further, the testimony is well within the range of appropriate considerations made by appraisers. As the court noted in Mitsui,\\n[T]he appraiser should take into account all facts and circumstances relating to the property which he thinks has a bearing on value; and . this may include any potential use or development which is to be expected with reasonable certainty. But the work of an appraiser, though it can be in a sense factual and scientific in some of its aspects, is also an art, in that it reflects the creative talents, the experience, the integrity, and in sum, the personalized judgment of the individual appraiser. It is his prerogative to select and analyze the various factors which seem important to him in arriving at his estimate as to value. Therefore no one should be able to put him in a straightjacket as to his method; much less should they compel him to speculate as to what may happen in the future with respect to the property.\\nId. at 1373 (emphasis added).\\nGiven the wide latitude accorded appraisers in their endeavors to determine a property's fair market value under Mitsui, along with the specific reference to \\\"potential use or development\\\" among the facts and circumstances to be considered, we conclude that the trial court did not err in admitting the six photographs into evidence. As in Mitsui, if Clinger \\\"fail[ed] to give proper consideration or weight to any particular faetor[,] that goes to the credibility and not to the admissibility of his evidence. If it has deficiencies, they are subject to exposure on cross-examination and the weight to be given it is for the jury.\\\" Id. (footnotes omitted).\\nScope of Hypothetical Questions\\nOn two separate occasions, the trial court prevented Associates from asking hypothetical questions of an expert witness. On the first occasion, Associates asked David Van-Drimmelen, UDOT's real estate appraiser, to assume that the north portion of the property had been severed from the remaining property and sold before the taking. UDOT objected to the question on the grounds that it assumed facts not in evidence, and the court sustained the objection. On the second occasion, Associates asked VanDrimme-len to assume that before the taking there was only one access to the property from 3000 East. UDOT again objected and the court sustained this objection, stating that \\\"[t]he Court's position is that the witness should not assume facts not in evidence.\\\"\\nAssociates contends that it is well established that the scope of hypothetical questions on cross-examination is extremely broad. \\\"[Ajlthough on direct examination the hypothetical questions must be based upon facts which the evidence tends to prove, no such limit is ordinarily imposed upon cross-examination.\\\" Burr W. Jones, Jones on Evidence Civil and Criminal \\u00a7 14.29, at 665-66 (6th ed. Supp.1991). UDOT concedes that this is a correct statement of the majority rule, but further responds that Utah follows the minority view that hypothetical questions on cross-examination are limited to facts in evidence:\\n\\\"It is a proposition too simple to require any citation of authorities that the material facts assumed in a hypothetical question [on cross-examination] must be proven on the trial, or rather, that there must be evidence on the trial tending to prove them; otherwise it is error to allow them to be answered.\\\"\\nNichols v. Oregon Short Line R.R. Co., 25 Utah 240, 247, 70 P. 996, 998 (1902) (citations omitted).\\nWhile Nichols addresses this issue, a subsequent case calls into question the continued vitality of the Nichols holding. In State v. Peek, 1 Utah 2d 263, 265 P.2d 630 (1953), the supreme court quoted extensively from 5 Nichols, Law of Eminent Domain \\u00a7 18.45(2), at 183 (1992), which states:\\n\\\"The scope of the cross-examination of experts and other witnesses who have testified to value in land damage cases is very broad, since cross-examination is often the only protection of the opposing party against the unwarranted estimates that a certain class of mercenary experts is wont to indulge in. A witness may be asked on cross-examination any facts which would be admissible on direct examination.... A witness who has given an opinion of value may, however, in the discretion of the court, be asked questions on cross-examination, for the purpose of testing his opinion, which would be improper upon direct examination. He may, for example, be asked how far certain assumed facts would modify his judgment.... \\\"\\nPeek, 265 P.2d at 637-38 (emphasis added). Therefore, it appears that the supreme court has effectively overruled the holding in Nichols, and hypothetical questions assuming facts not in evidence are permissible in the discretion of the court during cross-examination.\\nBased upon our reading of Peek, we conclude that the trial court erred when it prevented Associates from posing hypothetical questions to VanDrimmelen that did not include facts in evidence. The trial court's ruling was apparently based on an inaccurate view of the law rather than an exercise of permissible judicial discretion. However, it is not enough to show error \\u2014 Associates also has the burden of establishing that this error was prejudicial. Joseph v. W.H. Groves Latter Day Saints Hosp., 7 Utah 2d 39, 44, 318 P.2d 330, 333 (1957). Associates has not carried this burden. While Associates was not permitted to pose a question assuming that the north portion had been sold before the taking and was therefore landlocked after the taking, the court did allow Associates to ask VanDrimmelen whether it was true that the landowner no longer had the same flexibility in dividing the property for sale in parcels since access was so limited after the taking. As for the second disallowed hypothetical involving the assumption that there was originally access to the property only from 3000 East, the court later permitted Associates to pose the same question using a hypothetical piece of property. Therefore, there was no prejudice resulting from the trial court's erroneous application of the law concerning hypothetical questions on cross-examination because Associates was ultimately permitted to ask the expert witness the desired questions.\\nIn Limine Ruling\\nThe narrow issue on appeal is whether UDOT disregarded the trial court's in limine order that, for purposes of determining the \\\"before\\\" value of the property, the parties were to assume that the diamond interchange was constructed as planned. The trial court ruled at the hearing on the motion in limine that the property's value before condemnation was to be determined by assuming the presence of the 1-215 diamond interchange and attendant frontage and feeder roads as set forth in the UDOT plans attached to the complaint.\\nAt trial, the UDOT expert witnesses testified that the planned diamond interchange's benefit to Associates's property was limited because the feeder road, 6200 South, was too narrow to efficiently feed and receive traffic and therefore traffic would be congested around the access points to the property. To support this contention, UDOT pointed out that the final plans for the interchange filed with the court indicate that 6200 South would be relocated and widened just before the interchange, but in all other respects would remain the same.\\nAssociates's witnesses conceded that the plans for the diamond interchange did not include a connector road to Wasatch Boulevard and did not provide for any changes to 6200 South beyond those necessary to align this road with the interchange. Associates argued, however, that the diamond interchange plan would necessarily include widening and improving 6200 South up to the connection with Wasatch Boulevard because it would not make sense to build a new interchange and leave an old and problematic feeder road in place. Further, Associates provided testimony that the State had tentative plans to build a connector road from the interchange to Wasatch Boulevard that were separate from the interchange plans at issue in this case.\\nAlthough the State may have had separate plans to build some form of connector road at an undetermined point in the future, these plans were not before the court at the time of the in limine hearing and were not part of the court's ruling. Indeed, these additional plans were not presented as part of either of the two earlier condemnation proceedings for the Knudsen's Corner Interchange. For these reasons, we conclude that UDOT did not contravene the court's in limine ruling by introducing evidence concerning limitations of the diamond interchange as designed.\\nCONCLUSION\\nAfter review of each of Associates's four assertions of error, we conclude that only one has merit. The trial court incorrectly stated the law in eminent domain cases regarding the use of assumed facts in cross-examination and therefore improperly disallowed two lines of questioning. However, because the trial court later permitted Associates to ask essentially the same questions, Associates cannot establish the prejudice required to reverse and remand for a new trial. Accordingly, we affirm the judgment.\\nBILLINGS and DAVIS, JJ., concur.\\n. The \\\"diamond\\\" interchange takes its name from the fact that when viewed from above, the north and south bound on-ramps and off-ramps form a diamond-shaped configuration.\\n. An urban interchange is a modified diamond interchange with off-ramps that circle under the interstate and separate traffic headed left and right so that there is less congestion at traffic lights.\\n. As a general rule, offers to purchase are inadmissible to prove the value of the property in a condemnation action because the offeror may have \\\"so slight a knowledge on the subject as to render his opinion of no value.\\\" Sharp v. United States, 191 U.S. 341, 348, 24 S.Ct. 114, 115, 48 L.Ed. 211 (1903); accord County Sanitation v. Watson Land Co., 17 Cal.App.4th 1268, 22 Cal.Rptr.2d 117, 122 (1993); Costello Profit Sharing Trust v. State Roads Comm'n, 315 Md. 693, 556 A.2d 1102, 1104, cert. denied, 493 U.S. 854, 110 S.Ct. 157, 107 L.Ed.2d 115 (1989); City of Fort Worth v. Beaupre, 617 S.W.2d 828, 831 (Tex.Civ.App.1981); Continental Pipe Line Co. v. Irwin Livestock Co., 625 P.2d 214, 217 n. 5 (Wyo.1981). But see State Toll Highway Auth. v. Heritage Standard Bank & Trust, 250 Ill.App.3d 665, 189 Ill.Dec. 272, 285, 619 N.E.2d 1321, 1334 (1993) (stating that offers to purchase admissible if offer is bona fide and for cash); Hardaway v. City of Des Moines, 166 N.W.2d 578, 581 (Iowa 1969) (giving exception to general rule excluding price of offers in \\\"exceptional case[] in which the evidence establishes a foundation for a bona fide offer so firmly and completely that the trial court would not abuse its discretion in receiving evidence of such offer\\\"). In addition, offers are excluded because they are \\\"of a nature entirely too uncertain, shadowy, and speculative to form any solid foundation for determining the value of the land.\\\" Sharp, 191 U.S. at 348-49, 24 S.Ct. at 115.\\n. Clinger did testify earlier about five comparable sales that he considered in arriving at a figure for the fair market value of the property after condemnation. The properties involved in the five sales were determined to be reasonably comparable to the property in this case based upon such factors as accessibility, size, location, visibility from major traffic routes, and use.\\n. Associates argues that Carpet Barn v. Department of Transportation, 786 P.2d 770 (Utah App.1990) is dispositive of this issue. Carpet Bam was an inverse condemnation case in which Carpet Barn claimed that it was prejudiced by the trial court's exclusion of evidence of access allowed to other comparable properties. This court held that\\n[b]ecause appellants failed to demonstrate complete similarity between the other properties and their own circumstances, the court did not abuse its discretion in refusing to allow evidence of access afforded other properties, especially since such evidence would have little bearing on the question of the diminished value of this property as a result of the severance.\\nId. at 775 (emphasis added). We agree that the phrase \\\"complete similarity\\\" is problematic, but conclude that when examined in the context of the opinion and in light of other Utah Supreme Court opinions, it does not require the result urged by Associates.\\nIn the same paragraph and just prior to the language quoted above, this court relied on the supreme court case of State Road Commission v. Christensen, 13 Utah 2d 224, 229, 371 P.2d 552, 556 (1962), for the proposition that \\\"the issue of reasonable access as it affects a determination of severance damages is dependent on the particular facts and circumstances of each case.\\\" Carpet Barn, 786 P.2d at 774. Christensen, therefore, approved a flexible, fact-intensive approach to admissibility of evidence regarding access, which is consistent with Mitsui's requirement of \\\"reasonable comparability.\\\" This approach is further bolstered by the standard of review analysis in the recent case of State v. Pena, 869 P.2d 932, 938-40 (Utah 1994), in which the Utah Supreme Court observed that while admissibility of evidence is generally a question of law, it is a relatively large \\\"pasture\\\" where trial courts are still accorded a considerable amount of discretion. Consistent with that notion, the Carpet Bam opinion found no abuse of discretion by the trial court in excluding the disputed evidence and, we believe, should be limited to the particular facts of that case. To the extent that the opinion appears to require \\\"complete similarity\\\" of comparable properties, it is contrary to controlling case law from the Utah Supreme Court.\\n. Associates's subsequent attempt to rephrase the question resulted in virtually the same question being asked, and the objection that the question assumed facts not in evidence was again sustained.\"}"

utah/12025380.json

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+"{\"id\": \"12025380\", \"name\": \"The STATE of Utah, Plaintiff and Respondent, v. Gloria DANKER, Defendant and Appellant\", \"name_abbreviation\": \"State v. Danker\", \"decision_date\": \"1979-08-22\", \"docket_number\": \"No. 16200\", \"first_page\": \"518\", \"last_page\": \"521\", \"citations\": \"599 P.2d 518\", \"volume\": \"599\", \"reporter\": \"Pacific Reporter 2d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:34:25.704482+00:00\", \"provenance\": \"CAP\", \"judges\": \"WILKINS, HALL and STEWART, JJ., concur.\", \"parties\": \"The STATE of Utah, Plaintiff and Respondent, v. Gloria DANKER, Defendant and Appellant.\", \"head_matter\": \"The STATE of Utah, Plaintiff and Respondent, v. Gloria DANKER, Defendant and Appellant.\\nNo. 16200.\\nSupreme Court of Utah.\\nAug. 22, 1979.\\nMark W. Nash, Vernal, for defendant and appellant.\\nRobert B. Hansen, Atty. Gen., William W. Barrett, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.\", \"word_count\": \"1436\", \"char_count\": \"8680\", \"text\": \"CROCKETT, Chief Justice:\\nDefendant Gloria Danker was convicted by a jury of witness tampering, for dissuading her seven-year old daughter from testifying in a proceeding against one Kenneth D'Anza, who was living with the defendant, and who was charged with committing forcible sodomy upon the daughter. The defendant was fined $250, her sentence was suspended and she was placed on probation for two years.\\nDefendant contends that allowing testimony of details concerning the alleged at tack upon her daughter so prejudiced the jury that she was deprived of a fair trial.\\nAbout 4:00 a. m. on August 6, 1978, the defendant called the Vernal Police Department to report a disturbance. When Officers Mel Curtis and Reed Merrill arrived at her home, the defendant and D'Anza were arguing on the front porch. When D'Anza started to leave, the defendant asked the officers to stop him, stating that she had caught him in bed with her daughter a short while earlier. The officers arrested D'Anza; and then took the defendant and her daughter to the hospital.\\nEn route, the defendant instructed her daughter to tell the officers what had happened, which she did. At the hospital, Detective Robert Downard told the defendant that D'Anza would be charged and that he (Downard) would come to her home the next day to continue the investigation. On August 7, Detective Downard informed the defendant that an investigation of the offense was in progress and that her daughter would be called to testify concerning the matter.\\nLater that afternoon, the defendant took her daughter to a health center in Vernal for further physical examination and was met there by Officer John Parker. While there, Officer Parker told the defendant that her daughter would be placed in a temporary home through the State Division of Family Services. He testified that the defendant then told her daughter not to testify against D'Anza and not to talk to any more police officers about the case; and that he and Detective Darrell Lance took the defendant and her daughter to the Division of Family Services office. Both officers testified that the defendant again instructed her daughter to forget what she had told the police about D'Anza.\\nA temporary care order was issued and the defendant's daughter was removed from her custody. As the officers were leaving, Officer Parker testified that the defendant stated: \\\"There goes your case, suckers. You haven't got a case, suckers.\\\" The defendant was subsequently arrested.\\nSection 76-8-508, U.C.A., 1953, under which the defendant was charged, provides that a person is guilty of the offense if:\\n(1) Believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise causes a person to:\\na) Testify or inform falsely; or\\nb) Withhold any testimony, information . . . [Emphasis added.]\\nIt will be noted that under that statute the state has the burden of proving beyond a reasonable doubt: that the defendant knew an official investigation was in progress; that she knew her daughter would be a witness in any subsequent proceedings; and that she told her daughter not to testify.\\nThe defendant does not contend that the evidence was insufficient as to any of those elements. Her argument is that permitting the officers to testify as to details of the alleged assault as related by the little girl, was designed to inflame the jury by easting the defendant in the role of \\\"a mother who defended a man accused of abusing her own daughter.\\\" She asserts that this evidence was unnecessary and that its prejudicial effect so far outweighed its probative value that the trial court should have excluded it.\\nRule 45(b) of the Utah Rules of Evidence provides that a judge may, in his discretion, exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create a substantial danger of undue prejudice. The general rule is that if evidence is relevant and competent, the mere fact that it may be inflammatory does not render it inadmissible. The reason for this is that the jury is entitled to know the truth of the situation in order to arrive at a just verdict; and notwithstanding the prerogative of the court to exclude evidence, he should only do so if he thinks it will cause the processes of justice to go awry. This Court respects his prerogative in that regard and will not interfere with his ruling unless it clearly appears that he so abused his discretion that there is likelihood that an injustice resulted.\\nWhen the prosecutor referred to the events surrounding the forcible sodomy in his opening statement, the defendant's counsel objected, raising the question as to a possible later introduction of prejudicial evidence. At that time, the court advised the jury that:\\n. any other offense, other than the witness tampering case that we have here this morning, is not before you at this time. The only way that that may become relevant at all is just as a background or a setting in which other witnesses may testify that something may have occurred.\\nDuring the trial, defense counsel again objected to testimony relating to that other offense as not being relevant; and the trial judge overruled the objection.\\nSignificantly, after the evidentiary phase of the trial had been completed and, at the request of the defendant's counsel, the court submitted the following cautionary instruction to the jury:\\nthe defendant is charged with the specific offense of witness tampering, as set forth in these instructions . you should not allow yourselves to be prejudiced against her by any relationship she may have had with Mr. D'Anza or by the fact that he has been charged.\\nIt is plainly apparent from the record that Judge Ballif manifested great concern and acted with scrupulous care in safeguarding the defendant's right to have her guilt or innocence determined only on this particular charge, and solely upon the evidence relating thereto. This conclusion finds support in the fact that the defendant's counsel himself stated to the court that the cautionary instruction given was satisfactory to him.\\nIn the absence of anything appearing to the contrary, we think it is proper to assume the jurors adhered to their oath and performed their duties in a conscientious manner, without letting passion or prejudice influence their decision: and that the trial court similarly discharged his responsibilities.\\nAffirmed. No costs awarded.\\nWILKINS, HALL and STEWART, JJ., concur.\\n. In violation of 76-8-508, U.C.A.1953.\\n. State v. Renzo, 21 Utah 2d 205, 443 P.2d 392 (1968); State v. Harris, 21 Or.App. 174, 534 P.2d 202 (1975); State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (1977).\\n. State v. Pierre, Utah, 572 P.2d 1338, 1352-53 (1977). See also State v. Flett, 234 Or. 124, 380 P.2d 634 (1963); State v. Gallo, 20 Wash.App. 717, 582 P.2d 558 (1978).\\n. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966). See State v. Seymour, 18 Utah 2d 153, 417 P.2d 655 (1966).\"}"

utah/12340179.json

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+"{\"id\": \"12340179\", \"name\": \"STATE of Utah, Appellee, v. Douglas Ewald ISAACSON, Appellant\", \"name_abbreviation\": \"State v. Isaacson\", \"decision_date\": \"2017-01-06\", \"docket_number\": \"No. 20150591-CA\", \"first_page\": \"364\", \"last_page\": \"367\", \"citations\": \"391 P.3d 364\", \"volume\": \"391\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:54:32.888742+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Michele M. Christiansen authored this Memorandum Decision, in which Judge Gregory K. Orme concurred. Judge J. Frederic Voros Jr. concurred in the result, \\u25a0with opinion.\", \"parties\": \"STATE of Utah, Appellee, v. Douglas Ewald ISAACSON, Appellant.\", \"head_matter\": \"2017 UT App 1\\nSTATE of Utah, Appellee, v. Douglas Ewald ISAACSON, Appellant.\\nNo. 20150591-CA\\nCourt of Appeals of Utah.\\nFiled January 6, 2017\\nNathalie S. Skibine and Heather J. Ches-nut, Attorneys for Appellant.\\nSimaijit S. Gill and Colleen K. Magee, Attorneys for Appellee.\\nJudge Michele M. Christiansen authored this Memorandum Decision, in which Judge Gregory K. Orme concurred. Judge J. Frederic Voros Jr. concurred in the result, \\u25a0with opinion.\", \"word_count\": \"1711\", \"char_count\": \"10417\", \"text\": \"Memorandum Decision\\nCHRISTIANSEN, Judge:\\n\\u00b61 Douglas Ewald Isaacson (Defendant) appeals his conviction for one count of carrying a loaded and concealed dangerous weapon, a class A misdemeanor. See Utah Code Ann. \\u00a7 76-10-504(2) (LexisNexis Supp. 2013). We affirm.\\n\\u00b62 In October 2013, the Draper City police received a tip from a local library that Defendant was carrying a concealed weapon and that the library staff knew he did not have a concealed-carry permit. While en route to the library, the responding officers learned that Defendant had left the library and was likely headed to a nearby senior center. The officers found Defendant in the senior center's cafeteria. Defendant admitted to the officers that he had a gun concealed inside his jacket, and he allowed one of the officers to remove the gun from his jacket. The gun was fully loaded.\\n\\u00b63 At a bench trial, Defendant stipulated that he did not have a concealed-carry permit. According to Defendant, he believed he did not need a concealed-carry permit because he had \\\"a Second Amendment right to bear arms.\\\"\\n\\u00b64 Before the first witness was called to testify, Defendant indicated that he planned to call two \\\"reputation or . character witnesses.\\\" The State objected, observing that the witnesses were not present at the time the offense occurred and that their testimony \\\"would not be relevant to proving the ease as far as any of the elements that the State need[ed] to prove since they were not present.\\\" Defendant indicated that the witnesses would be testifying as to his reputation for truthfulness and his \\\"comprehension abilities and propensities related to the concealed carry permit law and also relating to carrying a weapon.\\\" The trial court reserved ruling on the issue.\\n\\u00b65 One of the responding police officers testified for the State, and a body-camera video was introduced and admitted into evidence. The video showed that Defendant was carrying a concealed gun inside his jacket. Based on this evidence and the testimony presented at trial, the court found that the gun was fully loaded and could be fired \\\"simply by pulling the trigger one time.\\\"\\n\\u00b66 Defendant testified that he had taken the concealed-carry class twice but that he had never obtained a concealed-carry permit. He also testified that he did not have a holster to carry his gun. Defendant further testified regarding his limited finances, explaining that he had \\\"economized\\\" to purchase his gun and to pay for the concealed-carry classes.\\n\\u00b67 After Defendant testified, he again asked to call the two witnesses to testify regarding his reputation for truthfulness. The trial court ruled that the witnesses could not testify because \\\"there ha[d] been no attack on [Defendant's] reputation for truthfulness and so pursuant to the rule it would be hearsay to have any witness come in and testify further about [Defendant's] reputation for truthfulness.\\\" The court also ruled that further testimony concerning Defendant's \\\"knowledge of needing a concealed weapons permit and his feeling on the law\\\" was neither relevant nor admissible.\\n\\u00b68 Ultimately, the trial court found Defendant guilty of carrying a loaded and concealed dangerous weapon, see Utah Code Ann. \\u00a7 76-10-504(2) (LexisNexis Supp. 2013), and sentenced him to one year in jail. The court suspended Defendant's sentence, placed him on probation, ordered him to complete twenty-four hours of community service, and ordered him to pay a $ 100 re-coupment fee. Defendant appeals.\\n\\u00b69 On appeal, Defendant contends that \\\"the court erred when it did not allow [him] to call two witnesses who would have testi- fled about [his] character for truthfulness.\\\" We review a trial court's evidentiary rulings for an abuse of discretion and its interpretation of evidentiary rales for correctness. State v. Alzaga, 2015 UT App 133, \\u00b6 31, 352 P.3d 107.\\n\\u00b610 Rule 608 of the Utah Rules of Evidence provides:\\nA witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.\\nUtah R. Evid. 608(a).\\n\\u00b611 Here, Defendant testified in his own defense. Defendant testified that he had paid $300 for his gun. He testified that he had twice taken the concealed-carry class but that he had never obtained a concealed-carry permit, even though he had \\\"heard about the need to have a permit.\\\" Defendant further testified that it was difficult for him to save the money to take the classes and that he lived \\\"paycheck to paycheck.\\\" According to Defendant, after he took the concealed-cany classes he \\\"was saving at the time to get the extra 50 bucks\\\" for a concealed-carry permit, but he was hoping the concealed-carry law would change.\\n\\u00b612 The prosecution cross-examined Defendant on various aspects of his testimony. The prosecution asked Defendant about his \\\"restricted income,\\\" and Defendant testified that he had been living on a Social Security-based restricted income for almost fourteen years. The following exchange occurred during the prosecution's cross-examination of Defendant:\\nQ. And after the previous weapon was stolen you were able to pay $300 to buy this new [gun]; is that correct?\\nA. It took some time to save the money and he took it on time and\\u2014\\nQ. But you did manage to scrape up $ 300 to buy the [gun]?\\nA. Yep, took me some time, some months.\\nQ. And then, .,. how much did you pay for . the first concealed carry class?\\nA. I think 50 bucks, maybe 60. I don't know.\\nQ. And you stated you had to take it again?\\nA. Well, it runs out after six months or a year, I can't remember what the time limit was. So [the instructor] let me do it again for 10 bucks.\\nQ. And you had been told that you needed to have a holster?\\nA. Yeah, that was months earlier.\\nQ. And you couldn't afford a holster at that time?\\nA. No.\\n\\u00b613 On redirect examination, defense counsel asked Defendant to further explain how he acquired the gun. Defendant testified that he had \\\"basically economized\\\" to purchase the gun and that it took \\\"four or five months of economizing to buy the gun.\\\" According to Defendant, he \\\"stopped going to [Utah] Jazz games,\\\" started eating at McDonald's \\\"[instead of going to [a sports bar],\\\" and stopped going to movies. He also stated that it only took \\\"a couple months of saving\\\" to attend the classes.\\n\\u00b614 On recross-examination, the prosecution asked Defendant about \\\"how much it . cost to go to a Jazz game\\\" and whether he purchased food at the games he attended. Defendant testified that it cost \\\"$ 19 for the nose bleed [section]\\\" but that he \\\"almost never\\\" paid that much and that he did not eat at the games. The prosecution also confirmed with Defendant that he had \\\"economized\\\" to purchase his gun and that it took four to five months \\\"to get the money for that\\\" and \\\"a couple months\\\" to get the $ 50 for the concealed-carry class. Defendant further testified that he thought it cost around $ 50 or $ 60 to get a concealed-carry permit in Utah, but he was not sure as to the exact amount.\\n\\u00b615 Based on the foregoing, Defendant contends that \\\"[t]he prosecution attacked [his] character for truthfulness when it cross-examined him concerning his fi nances after he testified that he could not afford a permit or a holster.\\\" We disagree,\\n\\u00b616 We see no evidence of an attack upon Defendant's character for truthfulness. The prosecution did not suggest that Defendant was lying about his finances or, for that matter, that he was being untruthful about anything. Rather, the prosecution's cross-examination questions merely reiterated Defendant's responses to defense counsel's questions regarding his finances. The prosecution's questions also generally highlighted the fact that Defendant would often \\\"economize!;]\\\" when he wanted to make a larger purchase and that he had not done so in order to obtain a concealed-carry permit. In sum, the prosecution's questions fell well short of attacking Defendant's character for truthfulness.\\n\\u00b617 Because the prosecution did not attack Defendant's reputation for truthfulness, we conclude that the trial court did not abuse its discretion in excluding the testimony of Defendant's proposed character witnesses.\\n\\u00b618 Affirmed.\\n. During the relevant time frame, Utah Code subsection 76-10-504(2) provided that \\\"[a] person who carries a concealed dangerous weapon which is a loaded firearm in violation of Subsection (1) is guilty of a class A misdemeanor.\\\" Utah Code Ann. \\u00a7 76-10-504(2) (LexisNexis Supp. 2013).\\n. \\\"On appeal from a bench trial, we view the evidence in a light most favorable to the trial court's findings, and therefore recite the facts consistent with that standard.\\\" State v. Davie, 2011 UT App 380, \\u00b6 2 n.1, 264 P.3d 770 (citation and internal quotation marks omitted).\"}"

utah/12340789.json

@@ -0,0 +1 @@
+"{\"id\": \"12340789\", \"name\": \"RUSK v. UNIVERSITY OF UTAH RISK MGMT\", \"name_abbreviation\": \"Rusk v. University of Utah Risk Mgmt\", \"decision_date\": \"2017-02-22\", \"docket_number\": \"20170021; 20160850\", \"first_page\": \"727\", \"last_page\": \"727\", \"citations\": \"390 P.3d 727\", \"volume\": \"390\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:16:45.527983+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RUSK v. UNIVERSITY OF UTAH RISK MGMT\", \"head_matter\": \"RUSK v. UNIVERSITY OF UTAH RISK MGMT\\n20170021\\nSupreme Court of Utah.\\n02-22-2017\\n20160850\", \"word_count\": \"20\", \"char_count\": \"129\", \"text\": \"Petition for Writ of Certiorari Denied.\"}"

utah/12345869.json

@@ -0,0 +1 @@
+"{\"id\": \"12345869\", \"name\": \"Patrick LILEY, Appellee, v. CEDAR SPRINGS RANCH INC., Appellant\", \"name_abbreviation\": \"Liley v. Cedar Springs Ranch Inc.\", \"decision_date\": \"2017-08-31\", \"docket_number\": \"No. 20150267-CA\", \"first_page\": \"817\", \"last_page\": \"825\", \"citations\": \"405 P.3d 817\", \"volume\": \"405\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:50:11.958175+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge David N. Mortensen authored this Opinion, in which Judges Stephen L. Roth and Kate A. Toomey concurred.\", \"parties\": \"Patrick LILEY, Appellee, v. CEDAR SPRINGS RANCH INC., Appellant.\", \"head_matter\": \"2017 UT App 166\\nPatrick LILEY, Appellee, v. CEDAR SPRINGS RANCH INC., Appellant.\\nNo. 20150267-CA\\nCourt of Appeals of Utah.\\nFiled August 31, 2017\\nBrent D. Wride, Salt Lake City, Attorney for Appellant\\nJoseph E. Wrona and Jared C. Bowman, Park City, Attorneys for Appellee\\nJudge David N. Mortensen authored this Opinion, in which Judges Stephen L. Roth and Kate A. Toomey concurred.\\n. Judge Stephen L. Roth participated in this case as a member of the Utah Court of Appeals. He retired from the court before this decision issued.\", \"word_count\": \"4673\", \"char_count\": \"27625\", \"text\": \"Opinion\\nMORTENSEN, Judge:\\n\\u00b6 1 A Black Angus cow strayed from the safety of its herd on property owned by Cedar Springs Ranch Inc., wandered through a hole in a poorly maintained fence, and found its way onto Highway 28 near Levan, Utah, While returning home one night, Patrick Liley collided with the cow, killing it and suffering injuries himself. Liley brought a negligence claim against Cedar Springs.and prevailed at trial despite Cedar Springs' insistence that Warm Creek Ranch, which leased Cedar Springs' property and owned the cows at the time of the accident, was responsible for Liley's injuries. Cedar Springs appeals the trial court's decisions on its summary judgment and directed verdict motions. We reverse.\\nBACKGROUND\\n- \\u00b62 Dale Dorius and his wife own Cedar Springs Ranch. Dorius is also one of six shareholders in Warm Creek Ranch. Dorius testified that in 1972, while acting on behalf of both entities, Dorius entered into an oral lease between Cedar Springs and Warm Creek. The lease allowed Warm Creek to use Cedar Springs' land to graze cattle for approximately four months of every year. Warm Creek was running cattle on Cedar Springs' property in October 2009 \\u2014 the time of Liley's accident, Liley admitted that Cedar Springs did not own the cattle. .\\n\\u00b6 3 At 2:00 a.m. on October 4, 2009, Liley was driving home from an elk hunting trip, heading, north on 'Highway 28 near Levan, Utah. Liley's truck collided with a cow that had wandered onto the road. Liley pulled over and called 911. He heard a number of cows bellowing on the east side of the freeway \\u2014 the direction of Cedar Springs' property. Liley also noted large holes in the fence along Cedar Springs' property and observed a tag on the cow's ear, which read \\\"Dorius Bamily.\\\"\\n\\u00b6 4 In November 2011 Liley filed this action for negligence, naming Cedar Springs, Dorius, the Utah Department of Transportation (UDOT), Juab County, and Sanpete County as defendants. Dorius, Juab County, and Sanpete County were dismissed from the action and their dismissal is not the subject of this appeal. UDOT prevailed on a directed verdict motion at trial, leaving Cedar Springs as the last remaining defendant. Liley never brought a claim against Warm Creek.\\n\\u00b6 5 Before trial, Cedar Springs filed a motion for summary judgment. Cedar Springs argued that Liley failed to establish that it owed him any duty. In his response, Liley admitted that \\\"Warm Creek . is a Corpo ration [that] owns and operates cattle and leases property from Cedar Springs.\\\" Liley argued that Cedar Springs owed him a duty under section 41-6a-407 of the Utah Code, which states,\\nA person who owns or is in possession or control of any livestock may not -yvillfully or negligently permit any of the livestock to stray or remain unaccompanied on a highway[.]\\nUtah Code Ann. \\u00a7 41-6a-407(l)(a) (LexisNex-is Supp. 2016), The thrust of Liley's argument was that \\\"Dorius[ ] fits the definition as either 'owning ;or controlling the. possession of any livestock' under the statute and it[ ] therefore has a duty.\\\"\\n\\u00b6 6 The trial court did not issue a written ruling on Cedar Springs' motion for summary judgment. On the first day of trial, the trial court met with counsel in chambers. The minute entry reflects that the trial court made \\\"findings\\\" and denied Cedar Springs' motion for summary judgment. The in-chambers meeting, however, was held off the record, meaning the trial court's findings and basis for denying Cedar Springs' summary judgment motion are not available to us.\\n\\u00b67 The jury, trial commenced, and, at the close of Liley's case-in-chief, Cedar Springs moved for a directed verdict. Cedar Springs again argued that Liley had not established that Cedar Springs owed Liley any duty. Liley again argued that Cedar Springs owed him a statutory duty under section 41-6a-407. Liley additionally argued that Cedar Springs had a duty to use reasonable care in controlling Warm Creek as its lessee.\\n\\u00b6 8 The trial court, this time on the record, denied Cedar Springs' motion for a directed verdict. The trial court concluded,\\nThere is a landlord/tenant relationship based upon his own testimony, and I do find that a landlord does have some duty to control the actions of its tenant, and I would say that at least in this case I would think that duty, perhaps is slightly greater given the close interrelationship of the parties. And so . I am going to find that there is sufficient competent evidence to go to the-jury on the issue of negligence with regard to Cedar Springs[.]\\n\\u00b6 9 Following the trial court's ruling, Cedar Springs presented additional evidence as part of its defense. At the conclusion of the trial the jury returned a special verdict form in which it allocated 86% fault -for the accident to Cedar Springs, 15% to Liley, and no fault to Warm Creek. The trial court entered judgment on- the special verdict. Cedar Springs appeals.\\nISSUES AND STANDARDS OF REVIEW\\n\\u00b6 10 Cedar Springs - appeals the trial court's denial of its motions for summary judgment and directed verdict that it owed Liley a duty. We review whether the trial court erred in denying those motions.\\n\\u00b6 11 The grant or denial of summary judgment presents a question of law and is reviewed for correctness. See Lyman v. Solomon, 2011 UT App 204, \\u00b6 3, 258 P.3d 647. Liley argues we should not review the summary judgment motion because the case proceeded to trial where the parties fairly litigated the facts. This premise applies when the issue on appeal is \\\"whether a dispute of material fact existed at the summary judgment stage.\\\" See Kerr v. City of Salt Lake, 2013 UT 75, \\u00b6 29, 322 P.3d 669 (stating that we \\\"do not review on appeal . whether a dispute of material fact existed at the summary judgment stage of a litigation if the tidal court denies summary judgment\\\"). But appellate review is available \\\"when a motion for summary judgment is denied on a purely legal basis.\\\" See ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, \\u00b6 12, 309 P.3d 201. As this court has explained, \\\"[m]ost cases involving claims of negligence are not susceptible to summary disposition, but the initial question of the existence of a legal duty in tort cases is a question of law for the court to determine.\\\" Lyman, 2011 UT App 204, \\u00b6 3, 258 P.3d 647 (citation and internal quotation markg omitted). \\\"[Whether a duty exists is a question of law which we review for correctness,\\\" Wood v. Salt Lake City Corp., 2016 UT App 112, \\u00b6 8, 374 P.3d 1080 (alteration in original) (citation and internal quotation marks omitted).\\n\\u00b6 12 The grant or denial of a directed verdict is also a question of law reviewed for correctness. See Proctor v. Costco Wholesale Corp., 2013 UT App 226, \\u00b66, 311 P.3d 564. Liley argues that our review of the directed verdict motion must be highly deferential in favor of the trial court's determination. See State v. Hawkins, 2016 UT App 9, \\u00b6 32, 366 P.3d 884 (\\\"When an appellant challenges the denial of a motion for a directed verdict based on the sufficiency of the evidence, [t]he applicable standard of review is ,.. highly deferential.\\\" (alterations in original) (citation and internal quotation' marks omitted)). Again, this is true when the basis of our review involves facts and the sufficiency of the evidence; howeyer, \\\"[w]hether a duty exists is a question of law which we review for correctness,\\\" Wood, 2016 UT App 112, \\u00b6 8, 374 P.3d 1080 (citation and internal quotation-marks omitted), and we give \\\"no particular deference to the trial court's, legal conclusions,\\\" State v. Skousen, 2012 UT App 325, \\u00b6 6, 290 P.3d 919 (citation and internal quotation marks omitted).\\nANALYSIS\\n\\u00b6 13 Cedar Springs challenges the trial court's summary judgment and directed verdict rulings, specifically regarding whether a duty exists. \\\"In order to recover for negligence, the plaintiff must affirmatively establish . that the defendant -owed the plaintiff a duty.\\\" Callister v. Snowbird Corp., 2014 UT App 243, \\u00b611, 337 P.3d 1044 (citation and internal quotation marks omitted). We first examine the trial court's ruling on summary judgment.\\nI. Summary Judgment\\n\\u00b6 14 Where a motion for summary judgment is denied, and the parties go to trial, \\\"[a]ppellate review is available only when [the] motion for summary judgment .is denied on a purely legal basis.\\\" See ASC Utah, Inc., 2013 UT 24, \\u00b6 12, 309 P.3d 201. A record of the trial court's reason for denying Cedar Springs' summary judgment motion is not available to us, but the trial court could not have permitted the claim to proceed to trial without first concluding that Cedar Springs owed Liley a duty. Further, the parties' moving papers are available for our review, and we can ascertain the purported duty that Liley advanced before the trial court. Because \\\"[w]hether a duty exists is a question of law,\\\" Wood, 2016 UT App 112, \\u00b6 8, 374 P.3d 1080 (citation and internal quotation marks omitted), appellate review is available on this issue even in the absence of a complete record.\\n\\u00b6 15 In arguing against Cedar Springs' motion for summary judgment, Liley claimed that Cedar Springs owed him a duty under section 41-6a-407(l)(a) of the Utah Code, which states,\\nA person who owns or is in possession or control of any livestock may not willfully or negligently permit any of the livestock to stray or remain unaccompanied on a highway!.]\\nUtah Code Ann. \\u00a7 41-6a-407 (LexisNexis Supp. 2016). In its response to the motion, Liley admitted that Cedar Springs does not own any cattle and that \\\"Warm Creek . is a Corporation [that] owns and operates cattle and leases property from Cedar Springs.\\\" The question is, then, whether a landlord is \\\"in possession or control of any livestock\\\" when it leases its property to a tenant that brings livestock onto the property. See id. Moreover, for liability to attach, the owner or the person in possession or control of the livestock must \\\"permit\\\" the livestock to stray or remain on a highway. See id.\\n\\u00b6 16 Section 41-6a-407 makes no mention of a landlord or any other third party, nor does it contain a definition for \\\"possession\\\" or \\\"control.\\\" We interpret statutory language \\\"according to its ordinary and usually accepted meaning.\\\" Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, \\u00b6 14, 267 P.3d 863 (citation and internal quotation marks omitted). A statute is ambiguous when \\\"its terms remain susceptible to two or more reasonable interpretations after we have conducted a plain language analysis.\\\" Id \\u00b6 15. When a statute is unambiguous \\\"no other interpretive tools are- needed.\\\" Id. (citation and internal quotation marks omitted).\\n\\u00b6 17 Section 41-6a-407 is unambiguous. \\\"A person who . is in possession or control of any livestock,\\\" whether or not he or she is the owner of the animals, may not permit the livestock to be on certain highways. We first look to the plain meaning of the specific terms \\\"possession\\\" and \\\"control.\\\" Possession means \\\"actual holding or occupancy, either with or without rights of ownership.\\\" Possession, Dictionary.com, http:// www.dictionary.com/browse/possession [https://perma.cc/NZF7-CLM6?typ.e=image]. The plain meaning of the term \\\"possession\\\" is unambiguous. See In re M.B., 2008 UT App 433, \\u00b6 19, 198 P.3d 1007 (concluding that the term \\\"possession\\\" is unambiguous while deciding whether the term encompassed both actual and constructive possession in a burglary statute). Control means \\\"to exercise restraint or direction over; dominate; command.\\\" Control, Dictionaiy.com, http://www. dictionary.com/browse/ control [https:// perma.cc/KL6X-U24W?type=image]. The term \\\"control\\\" is also unambiguous. See Turner v. Staker & Parson Cos., 2012 UT 30, \\u00b6 13, 284 P.3d 600 (conducting a plain language analysis of the term \\\"actual possession or control\\\" and discerning no ambiguity). Mere status as a landlord does not make the landlord a possessor or a person in control of the tenant's personal property, in this case the cows. Liability under the statute flows only from, possession or control of the livestock, not possession or control of the land. As such, the statute does not apply to Cedar Springs merely by virtue of its status as a lessor.\\n\\u00b6 18 By the plain meaning of the statute, and under the undisputed facts of this case, Cedar Springs did not have possession or control over the cattle owned by Warm Creek. A landlord does not actually hold its tenant's property, as would be indicative of having possession. Nor does a landlord direct or command its tenant's property, as would be indicative of control, except by some term of the lease. Here, Cedar Springs owns no cattle and leases its property to Warm Creek, which uses the land to run cattle. There is no evidence of any lease term \\u00e1llowing Cedar Springs to dispose of or manage the cattle belonging to Warm Creek. Therefore, the unambiguous statutory' language, as applied to the undisputed facts, provides no support for 'a claim that Cedar Springs owed any duty to Liley under section 41-6a-407.\\n\\u00b6 19 Liley's failure to show a duty means he' did not meet his burden on summary judgment.\\nA summary judgment movant, on an issue where the nonmoving party will bear the burden of proof at trial, may satisfy its burden on summary judgment by showing, by reference to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that there is no genuine issue of material fact. Upon such a showing, whether or not supported by additional affirmative factual evidence, the burden then shifts to the nonmoving party, who may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial.\\nOrvis v. Johnson, 2008 UT 2, \\u00b6 18, 177 P.3d 600 (citations and internal quotation marks omitted).\\n\\u00b6 20 Here, Liley ultimately bore the burden at trial to demonstrate that Cedar Springs owed him a duty. See Callister v. Snowbird Corp., 2014 UT App 243, \\u00b6 11, 337 P.3d 1044. Cedar Springs demonstrated by Dorius's testimony that Warm Creek had leased the property and was using the property to graze cows \\u2014 and Liley admitted as much. Thus, Cedar Springs carried its initial burden on summary judgment, and the burden then shifted to Liley as the party ultimately bearing the burden of proof at trial to show that Cedar Springs had possession or control of the cattle. The mere fact that Doiius is a principal of both Cedar Springs and Warm Creek is not enough, While legal doctrines exist, such as piercing the corporate veil, which can impose a company's liability personally on its principal, see, e.g., Lodges at Bear Hollow Condo. Homeowners Ass'n, Inc. v. Bear Hollow Restoration, LLC, 2015 UT App 6, \\u00b6 13, 344 P.3d 145, we are aware of no doctrine that imposes the liabilities of one company onto another solely by virtue of a shared principal. And Liley points to none. The fact that Dorius is a principal of both Warm Creek and Cedar Springs does not establish a duty held by Cedar Springs with respect to the activities of Warm Creek's cattle.\\n\\u00b6 21 Ultimately, Liley's arguments in support of affirmance miss the mark. He focuses on the existence of disputes of material facts that should be decided by the jury. But these arguments ignore that \\\"[wjhether a duty exists is a question of law.\\\" Wood v. Salt Lake City Corp., 2016 UT App 112, \\u00b6 8, 374 P.3d 1080 (citation and internal quotation marks omitted). In his own words, Liley asserts, \\\"[Wjhether [Cedar Springs] had a duty to control the cattle . was a question of fact for the jury.\\\" This assertion ignores that \\\"appellate courts have consistently held that '[t]he determination of whether a legal duty exists falls to the court.'\\\" Normandeau v. Hanson Equip., Inc., 2009 UT 44, \\u00b6 18, 215 P.3d 152 (alteration in original) (quoting Yazd v. Woodside Homes Corp., 2006 UT 47, \\u00b6 14, 143 P.3d 283). Liley's contention confirms the very error that Cedar Springs argues on appeal \\u2014 that the trial court erroneously denied its motion for summary judgment.\\n\\u00b6 22 In \\u00e1um, under the plain language of the statute, the landlord-tenant relationship here does not establish that Cedar Springs was in possession or control of cattle owned by Warm Creek. Insofar as the trial court ruled that Cedar Springs owed Liley a duty stemming from the statute, such ruling was in error. From the record we have before us, it appears summary judgment should have been granted. However, because the complete record of the trial court's findings and ruling on summary judgment is not before us, and because we typically presume the regularity of the proceedings, we are loath to base .a reversal on the incomplete record of the summary judgment motion alone. Therefore, we turn to the motion for directed verdict where the issue was essentially presented anew.\\nII. Directed Verdict\\n\\u00b6 23 A court may grant a directed verdict motion \\\"[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.\\\" Utah R. Civ. P. 50(a)(1). Cedar Springs moved for a directed verdict and, just as it did in its summary judgment motion, argued that Liley did not establish that Cedar Springs owed him any duty. Liley asserted again that Cedar Springs owed him a statutory duty under section 41-6a-407 of the Utah Code. Liley additionally argued that Cedar, Springs had a duty to use reasonable care in controlling Warm Creek as its lessee. But Liley articulated to the trial court no legal basis for this alleged latter duty during the arguments on the motion,\\n\\u00b6 24 On directed verdict, however, the trial court ruled that a duty arose from the relationship of landlord and tenant:\\nThere is a . landlord/tenant relationship based upon [Dorius's] own testimony, and I do find that a landlord does have some duty to control the actions of its tenant, and I would say that at least in this case I would think that duty perhaps is slightly greater given the close interrelationship of the parties. And so . I am going to find that there is sufficient competent evidence to go to the jury on the issue of negligence with regard to Cedar Springs[.]\\n\\u00b625 Thus, the, basis of Cedar Springs' duty, as articulated by the trial court, stems solely from its relationship as landlord with Warm Creek and imposes a duty, not to use reasonable care in controlling the cattle, but to control its tenant. Liley has identified no such duty in Utah jurisprudence that applies to the facts of this case, and, our review of applicable law does not support the trial court's conclusion. ,\\n\\u00b6 26 The law generally imposes a duty on a landlord to tenants and third parties for portions of property over which it maintaihs possession or control, such as common areas, that pose a danger. See Wilson v. Woodruff, 65 Utah 118, 235 P. 368, 369 (1925). The law also generally imposes a duty on a landlord to -ensure the leased premises intended for housing are suitable for habitation. See, e.g., Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, \\u00b6 56, 221 P.3d 234. A landlord that leases property for purposes .of public admission is responsible \\\"to at least inspect the property and make reasonable efforts to ensure that conditions creating a reasonably foreseeable risk of harm are corrected before the property is delivered to a tenant.\\\" See Darrington v. Wade, 812 P.2d 452, 458-59 (Utah Ct. App. 1991). Lastly, a landlord may be liable for injury where it knows of a dangerous condition on the property before leasing the property. See English v. Kienke, 848 P.2d 153, 155 (Utah 1993). Absent these exceptions, a landlord is under no obligation to make repairs, even where the property becomes hazardous. See id. at 156 (explaining that a landlord is not liable for an injury caused by a dangerous condition created by the tenant). Liley has not demonstrated that, under the circumstances of this case, any of these exceptions apply here or provide support for the trial court's ruling that a landlord must use reasonable care to control its tenant.\\n\\u00b6 27 \\\"[A] landlord is not deemed to be the principal \\u00f3f his tenant merely because of the landlord-tenant relationship^]\\\" Stephenson v. Warner, 581 P.2d 567, 568 (Utah 1978). Furthermore, a landlord is \\\"not responsible for the tenant's torts, nor for the tenant's failure to keep the premises reasonably safe and in good repair.\\\" Id. \\\"On the contrary, . it is the tenant who is liable for any dangerous condition on the premises which he creates or permits to come into existence after he has taken possession.\\\" Id. at 568-69. Thus, while there is a general duty for a landlord to exercise reasonable care over areas in which it has retained control, see MacFarlane v. Applebee's Rest., 2016 UT App 158, \\u00b6 21, 378 P.3d 1286 (explaining that a lessor was not a possessor of land in relation to a parking lot because the landlord retained the responsibility to maintain common areas in the lease agreement), no general duty exists for a lessor to control a lessee.\\n\\u00b6 28 Much was made at trial about the condition of the fence and whether the fence was in disrepair before or after Warm Creek took possession- of the land. Liley essentially argued that because the fence had not been maintained in years, a dangerous condition existed on the land prior to Warm Creek taking possession of the land and that Cedar Springs had a duty to repair; the fence. However, a derelict fence on rural property is not itself a dangerous condition. And here, the allegedly dangerous condition that Liley relies on \\u2014 the potential for cattle to escape through an unrepaired fence \\u2014 did not exist when the leasehold. was delivered; Warm Creek created the dangerous condition when it brought livestock to the property. In any event, whether the fence was broken before or after Warm Creek took possession of the land is not pertinent to the basis upon which the trial court allowed the case to proceed\\u2014 that a landlord has a duty to control its tenant.\\n\\u00b6 29 Further, as discussed abov\\u00e9' in the analysis of summary judgment, Utah Code section 41-6a-407 does not impose liability upon a landlord who leases its property to a tenant who in turn grazes cattle on the property. Supra Part I. Insofar as the court's ruling on directed verdict can be read as an extension of a duty based on section 41-6a-407, we reject that reasoning for the same reasons stated above.\\n\\u00b6 30 Liley asserts, while rearticulating what he believes is the question presented for our review, that Cedar Springs' issue statement \\\"should read: Did the district court err by finding that the question of [Cedar Springs'] duty to ensure that cattle on its property were properly fenced involved questions of fact for the jury to decide?\\\" The question-of whether a duty has been breached usually involves questions of fact. See, e.g., Normandeau v. Hanson Equip., Inc., 2009 UT 44, \\u00b6 21 n.2, 215 P.3d 152 (\\\"[W]hen there is a dispute about the foreseeability of an injury occurring, the questions relating to negligence and proximate cause are generally for the fact-trier, court or jury, to determine.\\\" (citation and internal quotation marks omitted)). But \\\"appellate courts have consistently held that '[t]he determination of whether a legal duty exists falls to the court,' \\\" id. \\u00b6 18 (alteration in original) (quoting Yazd v. Woodside Homes Corp.,, 2006 UT 47, \\u00b6 14, 143 P.3d 283). Like his argument against summary judgment, this argument confirms the very error that Cedar Springs argues on appeal\\u2014 that the trial court erroneously denied its motion for a directed verdict.\\n\\u2022\\u00b6 31 We conclude that the trial court incorrectly determined that Cedar Springs owed a duty to control its tenant and thus owed a duty to Liley.\\n.CONCLUSION\\n\\u00b6 32 The trial court erred in its rulings on summary judgment and directed v.erdict. Li-ley failed to establish below that Cedar Springs owed him a duty under the law. Under the plain language of the statute, Cedar Springs did not have possession or control of the cow merely because it owns the land from which the cow wandered. Further, there is no general duty, under the law for a landlord to use reasonable care in controlling its tenants, even where entities share a principal. .\\n\\u00b633 Reversed.\\n. The tag, along with the cow's head, went miss- ' ing sometime between the night of the accident and a follow-up investigation one or two days later.\\n. We cite the, most current version of the Utah Code. The statute has not substantively changed since the time of the accident. Compare Utah Code Ann. \\u00a7 41-6a-407 (LexisNexis Supp. 2016), with id, (LexisNexis 2005).\\n. Presumably, \\\"it\\\" refers to Cedar Springs.\\n. The parties give us some clues as to the basis of the trial court's ruling on summary judgment from the context of the arguments on appeal. Cedar Springs states its first issue presented for review is whether the trial court erred \\\"in essentially ruling that, as a matter of law, a landlord that owns real property on which a tenant's cows are grazing is 'in possession or control' of the livestock [under- Utah Code section 41-6a-407(l)(a)].\\\" Liley responds to Cedar Springs' issue statement, explaining,\\nThe trial court made no such ruling. The trial court found that evidence exjsted to suggest that [Cedar Springs] had \\\"some duty to control the actions of its tenant,\\\" and the trial court opined that [Cedar Springs'] duty could be impacted by the fact [Cedar Springs] and tenant [Warm Creek] are both owned and controlled, by .Dale Dorius. The trial court therefore denied summary judgment on the question of duty and allowed trial to proceed on the question of the scope of [Cedar Springs'] duty versus [Warm Creek's] duty.\\nLiley does not cite tire quoted language in his explanation, though it appears to be a quote from the trial court's ruling on Cedar Springs' motion for a directed verdict; not summary judgment. In any event, without a record of the trial court's ruling, we'are left in the dark, and neither party has attempted to supplement the record as permitted under the appellate procedure rules. We also note that trial courts are not required to specify the grounds on which they deny summary judgment. See Normandeau v. Hanson Equip., Inc., 2009 UT 44, \\u00b6 9, 215 P.3d 152. Either way, a trial court's decision on summary judgment is reviewed for correctness. See Lyman v. Solomon, 2011 UT App 204, \\u00b6 3, 258 P.3d 647.\\n. Cedar Springs also challenges the internal consistency of the jury's findings on its special verdict. Because we reverse the trial court's legal determinations on duty, we do not reach the jury's findings on the special verdict.\\n. We note that Liley disputed whether the lease contained a provision charging Warm Creek with the obligation to maintain the fences. But this dispute does not alter our analysis of Liley's argument that a.landlord has a duty under Utah Code section 41-6a-407,\\n. Here, the trial court expressly held that the piercing-the-corporate-veil doctrine did not apply, and no one challenges this conclusion on appeal.\"}"

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+"{\"id\": \"12569668\", \"name\": \"STATE of Utah, Appellee, v. Meagan GRUNWALD, Appellant.\", \"name_abbreviation\": \"State v. Grunwald\", \"decision_date\": \"2018-03-22\", \"docket_number\": \"No. 20160079-CA\", \"first_page\": \"990\", \"last_page\": \"1005\", \"citations\": \"424 P.3d 990\", \"volume\": \"424\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of Utah\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-27T21:04:00.673051+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Utah, Appellee,\\nv.\\nMeagan GRUNWALD, Appellant.\", \"head_matter\": \"STATE of Utah, Appellee,\\nv.\\nMeagan GRUNWALD, Appellant.\\nNo. 20160079-CA\\nCourt of Appeals of Utah.\\nFiled March 22, 2018\\nMargaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant\\nSean D. Reyes and Christopher D. Ballard, Attorneys for Appellee\\nJudge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.\\nOpinion\", \"word_count\": \"8946\", \"char_count\": \"55655\", \"text\": \"HAGEN, Judge:\\n\\u00b61 This appeal arises from a crime spree that left one police officer dead and another gravely injured. The deadly rampage ended when Jose Angel Garcia Juaregi (Garcia) was shot and killed by police. His teenaged girlfriend, Meagan Grunwald, was charged and convicted as an accomplice to the aggravated murder of Sergeant Cory Wride (Count One); the attempted aggravated murder of Deputy Greg Sherwood and felony discharge of a firearm resulting in serious bodily injury (Counts Two and Three); felony discharge of a firearm for shooting at Trooper Jeff Blankenagel (Count Five); felony discharge of a firearm and criminal mischief for shooting and damaging a semi-trailer truck (Counts Six and Seven); and aggravated robbery for carjacking a vehicle from another motorist (Count Eleven).\\n\\u00b62 At trial, the jury was incorrectly instructed on the elements of accomplice liability. After carefully reviewing the evidence presented at trial, we hold that the error was harmless with respect to Counts One and Eleven and therefore affirm those convictions. With respect to Counts Two, Three, Five, Six, and Seven, however, there is a reasonable probability that the result would have been different if the jury had been correctly instructed on the law. As a result, we must vacate those convictions and remand for a new trial on those counts.\\nBACKGROUND\\n\\u00b63 In June 2013, when Grunwald was sixteen years old, she was introduced to Garcia by a mutual friend. Garcia had been previously convicted of manslaughter and was on parole. Although Garcia was almost ten years older than Grunwald, they became romantically involved. By September, Garcia had moved into the Grunwald family home in Draper, Utah. Garcia's presence in the home and his intimate relationship with Grunwald resulted in friction between Grunwald's parents.\\n\\u00b64 In January 2014, Grunwald's parents decided to separate, and Grunwald planned to move with her mother to St. George, Utah. Garcia told his parole officer that he wanted to transfer his supervision to St. George so that he could stay with Grunwald. His parole officer directed Garcia to stay with his brother in Provo, Utah and to report in on January 27. When Garcia failed to report, the parole officer applied for an arrest warrant.\\n\\u00b65 On January 30, Grunwald and her mother were packing their belongings when Garcia asked Grunwald to \\\"go on a ride\\\" with him so they could talk. Grunwald agreed, and she and Garcia drove away in her truck, with Grunwald behind the wheel.\\n\\u00b66 At some point during the drive, Garcia told Grunwald that there was a warrant out for his arrest. The circumstances surrounding this announcement were disputed at trial, but Grunwald became sufficiently upset to pull off to the side of Highway 73 and turn on her hazard lights.\\n\\u00b67 Sergeant Cory Wride, with the Utah County Sheriff's Office, noticed the truck on the side of the road and notified dispatch that he was conducting a \\\"motorist assist.\\\" He approached the driver's window and asked Grunwald if she was okay. Although she was crying and her face was red, Grunwald told him she was fine. He asked for her identification and car registration and then went back to his vehicle to confirm her information with a police dispatcher. When Sergeant Wride returned to the truck, he gave the documents back to Grunwald and asked her again if she was sure she was okay. When she assured him that she was, he turned his attention to Garcia. Garcia provided a false name and birthdate, and Sergeant Wride again returned to his vehicle to verify the information.\\n\\u00b68 According to Grunwald, Garcia told her to put her foot on the brake while he shifted the truck into drive. With a gun in hand, Garcia announced to Grunwald that he was \\\"going to buck [the officer] in the fucking head.\\\" Grunwald held her foot on the brake with the car in drive for more than three-and-a-half minutes. During this time, a passing motorist noticed that Grunwald was checking her driver's side mirror. When there was a significant lull in traffic, Garcia slid open the truck's back window and fired seven shots at Sergeant Wride as he sat in is patrol vehicle. Immediately after Garcia fired the shots, Grunwald accelerated back onto the road and drove away.\\n\\u00b69 Two bullets struck Sergeant Wride, one piercing his forehead and the other puncturing his neck. When Sergeant Wride did not answer his radio or calls to his mobile phone, another officer drove to his last known location. The officer found Sergeant Wride dead. He notified the dispatch center, and other officers began searching for Grunwald's truck.\\n\\u00b610 About an hour and a half after the shooting, police first spotted the truck travelling southbound on I-15 between the two Santaquin exits. When police gave chase, Grunwald pulled into an emergency turnaround and made a U-turn to head northbound on I-15.\\n\\u00b611 Another officer, Utah County Sheriff's Deputy Greg Sherwood, spotted Grunwald's truck as she exited the interstate at the Santaquin Main Street exit and began to follow. When Deputy Sherwood activated his siren and overhead lights, Grunwald suddenly reduced her speed, which closed the gap between the two vehicles. In that instant, Garcia fired at Deputy Sherwood through the truck's back window. One bullet struck Deputy Sherwood in the head, causing serious injury. Fortunately, Deputy Sherwood survived the shooting.\\n\\u00b612 Immediately after Garcia fired at Deputy Sherwood, Grunwald made another abrupt U-turn and headed back to the I-15 on-ramp. Utah Highway Patrol Trooper Jeff Blankenagel spotted Grunwald's truck once it was back on the interstate. As Trooper Blankenagel followed the truck, Garcia fired two shots in his direction from the truck's back window. Trooper Blankenagel reduced his speed to create a safe following distance between his vehicle and Grunwald's truck. Ahead on I-15, other officers had deployed a spike strip to stop the truck. Grunwald maneuvered around it, but the spike strip disabled Trooper Blankenagel's vehicle. As Grunwald continued driving, she crashed into another vehicle, resulting in damage to the front end of the truck that impaired her ability to steer and brake.\\n\\u00b613 Undeterred, Grunwald continued driving and passed a semi-trailer truck traveling southbound on I-15. As they went by, the truck driver saw Garcia lean out of the truck's passenger window and fire shots at his semi-trailer. The truck driver pulled over to examine his vehicle and found that the gun shots had damaged parts of the truck.\\n\\u00b614 Shortly after passing the semi-trailer truck, Grunwald took the Nephi Main Street exit off of I-15, and she and Garcia abandoned the disabled truck. Garcia ran down the middle of the road away from the truck, and Grunwald followed. Officers yelled at them to \\\"stop\\\" and \\\"[g]et down.\\\" Ignoring these commands, Garcia fired at an officer while Grunwald ran directly toward a moving car waving her arms. The driver saw Grunwald flagging her down and stopped her vehicle. While Grunwald opened the passenger side door and climbed in, Garcia opened the driver's door, waved his gun at the driver, and ordered her to get out. The driver asked if she could get her daughter out of the back seat, to which Garcia replied, \\\"[Y]ou better hurry.\\\" As soon as the driver retrieved her daughter, Garcia drove away with Grunwald in the passenger seat.\\n\\u00b615 Garcia returned to I-15, but police successfully deployed tire spikes, slowing the vehicle and eventually causing a tire to become dislodged. When the disabled vehicle came to a stop, Garcia abandoned it, running toward another vehicle with Grunwald following him. Officers yelled at them to stop and get down. As Garcia neared the other vehicle, gunfire erupted. Grunwald stopped and dropped to her knees.\\n\\u00b616 Garcia continued to flee and aimed his gun at an approaching officer. The officer yelled, \\\"Show me your hands.\\\" When Garcia failed to do so, the officer fired two shots. Grunwald saw one bullet strike Garcia in the head, and she began to scream. The officer who fired heard her yell, \\\"You shot him in the fucking head.\\\" A bystander saw Grunwald pacing frantically, acting distraught and hysterical. She appeared angry at the police and screamed, \\\"You fucking ass holes, you didn't have to shoot him. You fucking shot him. Oh, my God, you fucking shot him.\\\"\\n\\u00b617 Garcia, on the ground but still conscious, continued to struggle as officers wrestled away his gun and placed him in handcuffs. Once he was subdued, officers attempted to administer first aid. Garcia asked them for water then said, \\\"Why don't you let me kiss my girlfriend with my last dying breath?\\\" Garcia died later that day.\\n\\u00b618 After Grunwald was arrested and placed in a patrol vehicle, she claimed that Garcia had threatened to shoot her and her family if she refused to go with him and that she \\\"tried to get him to stop.\\\"\\n\\u00b619 The State charged Grunwald with twelve counts associated with these events. On Counts One through Seven and Count Eleven, the State charged Grunwald as an accomplice. She pled not guilty to all charges and the case proceeded to trial. Between April 28 and May 9, 2015, the district court held a nine-day trial, during which Grunwald raised the affirmative defense of compulsion. At the end of trial, the jury convicted Grunwald of eleven of the twelve counts, acquitting her of Count Four, attempted aggravated murder for Garcia's shooting at Trooper Blankenagel.\\n\\u00b620 On July 8, 2015, the court sentenced Grunwald to various prison terms of zero-to-five years to twenty-five years to life. The court imposed a sentence of twenty-five years to life on Count One (aggravated murder) to run consecutively with a sentence of five years to life on Count Eleven (aggravated robbery). The court ordered the sentences on the remaining counts to run concurrently with all other counts.\\n\\u00b621 Grunwald appealed. Pursuant to Utah Code section 78A-3-102(4), the Utah Supreme Court transferred the appeal to this court. Utah Code Ann. \\u00a7 78A-3-102(4) (LexisNexis 2017).\\nISSUE AND STANDARD OF REVIEW\\n\\u00b622 Grunwald contends that she received ineffective assistance of counsel because her attorney failed to object to erroneous jury instructions on accomplice liability. \\\"When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether [the] defendant was deprived of the effective assistance of counsel as a matter of law.\\\" Layton City v. Carr , 2014 UT App 227, \\u00b6 6, 336 P.3d 587 (alteration in original).\\nANALYSIS\\n\\u00b623 An accused is guaranteed assistance of counsel for his or her defense under the Sixth Amendment to the United States Constitution and article 1, section 12 of the Utah Constitution. \\\"[T]he right to counsel is the right to the effective assistance of counsel.\\\" Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citation and internal quotation marks omitted). To establish a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate both \\\"that counsel's performance was deficient\\\" and \\\"that the deficient performance prejudiced the defense.\\\" Id. at 687, 104 S.Ct. 2052 ; see also State v. Litherland , 2000 UT 76, \\u00b6 19, 12 P.3d 92 (following Strickland 's two-prong test for ineffective assistance of counsel). To satisfy the first element, a defendant must show that \\\"counsel's representation fell below an objective standard of reasonableness,\\\" which \\\"overcome[s] the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.\\\" Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052 (citation and internal quotation marks omitted). The second element requires that the defendant establish that \\\"a reasonable probability exists that, but for counsel's error, the result would have been different.\\\" State v. Millard , 2010 UT App 355, \\u00b6 18, 246 P.3d 151 (citation and internal quotation marks omitted).\\n\\u00b624 In this case, counsel's performance was deficient because counsel failed to object to serious errors in the jury instructions relating to accomplice liability. As to prejudice, we conclude that there is a reasonable probability that the result would have been different on some counts but not others.\\nI. Deficient Performance\\n\\u00b625 To assess deficient performance in this case, we must evaluate whether the instructions provided to the jury correctly stated the law. Because the jury instructions at issue concerned accomplice liability, we begin with a review of Utah law on that subject.\\n\\u00b626 Under section 76-2-202 of the Utah Code, \\\"[e]very person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.\\\" Utah Code Ann. \\u00a7 76-2-202 (LexisNexis 2017). Under this statute, \\\"accomplice liability adheres only when the accused acts with the mens rea to commit the principal offense.\\\" State v. Calliham , 2002 UT 86, \\u00b6 64, 55 P.3d 573. To prove the requisite mens rea, \\\"the State must show that an individual acted with both the intent that the underlying offense be committed and the intent to aid the principal actor in the offense.\\\" State v. Briggs , 2008 UT 75, \\u00b6 13, 197 P.3d 628.\\n\\u00b627 \\\"[T]he first step in applying accomplice liability is to determine whether the individual charged as an accomplice had the intent that an underlying offense be committed.\\\" Id. \\u00b6 14. In this context, \\\"intent\\\" means \\\"[t]he state of mind accompanying an act,\\\" and it is not to be confused with the mental state \\\"intentionally.\\\" State v. Jeffs , 2010 UT 49, \\u00b6 43, 243 P.3d 1250 (alteration in original) (citations and internal quotation marks omitted). Regardless of the mental state required, the accomplice must possess that mental state with respect to the commission of the principal crime. See id. \\u00b6 44. Second, under the \\\"intentionally aids\\\" portion of accomplice liability, the \\\"accomplice must intentionally aid in the commission of a crime to be held criminally liable.\\\" Briggs , 2008 UT 75, \\u00b6 13, 15, 197 P.3d 628. In other words, the accomplice must intentionally provide aid directed to accomplishing the crime. See Jeffs , 2010 UT 49, \\u00b6 44, 243 P.3d 1250.\\n\\u00b628 The Utah Supreme Court's decision in Jeffs , illustrates these principles. Jeffs was charged as an accomplice to rape for his role in performing a coerced marriage between the principal and an underage girl. See id. \\u00b6 4-13. At trial, Jeffs unsuccessfully requested a jury instruction requiring the State to prove that he \\\"intended that the result of his conduct would be that [the principal] rape [the victim].\\\" Id. \\u00b6 40. The Utah Supreme Court held that he was entitled to this instruction for two reasons.\\n\\u00b629 First, the provided instructions failed to connect the required mental state to the commission of the principal crime. Because the principal offense of rape could be committed \\\"intentionally, knowingly or recklessly,\\\" the State had to prove that Jeffs acted \\\"intentionally, knowingly, or recklessly\\\" to convict him as an accomplice. Id. \\u00b6 44\\\"But,\\\" the court asked rhetorically, \\\"intentionally, knowingly, or recklessly in regard to what?\\\" Id. The instruction provided to the jury \\\"only indicated that the reckless, knowing, or intentional mental state attached to the actions of 'solicited, requested, commanded, or encouraged,' not to the underlying criminal conduct of rape.\\\" Id. \\u00b6 42. This was error. The Jeffs court explained that in order for an accomplice to act \\\"with the mental state required for the commission of [the] offense,\\\" the accomplice \\\"must act intentionally, knowingly, or recklessly as to the results of his conduct. And in order for criminal liability to attach, the results of his conduct must be a criminal offense.\\\" Id. \\u00b6 44 (alteration in original) (citation and internal quotation marks omitted). An accomplice to rape would act intentionally if he \\\"desires to cause rape,\\\" knowingly if he \\\"knows that his conduct will most likely cause rape,\\\" and recklessly if he \\\"recognizes that his conduct could result in rape but chooses to proceed anyway.\\\" Id. \\u00b6 45.\\n\\u00b630 Second, the jury instructions in Jeffs failed to clarify the \\\"intentionally aided\\\" portion of the accomplice liability statute. Where \\\"the defendant is charged with aiding another in the commission of the offense, the accomplice liability statute requires that the defendant's aiding be 'intentional,' \\\" meaning that the accomplice must intend to aid the principal in committing the offense. Id. \\u00b6 50-51 (quoting Utah Code Ann. \\u00a7 76-2-202 (2008) ). \\\"Without Jeffs' proposed instruction as to intent, the jury could have convicted Jeffs if it found that Jeffs 'intentionally' did some act, and such intentional act unintentionally 'aided' \\\" the principal in raping the victim. Id. \\u00b6 52. As a result, the jury could have convicted Jeffs as an accomplice \\\"simply because he intentionally performed the marriage ceremony and the existence of the marriage aided [the principal] in raping [the victim].\\\" Id. In short, the instructions failed to require the State to prove that Jeffs \\\"acted with both the intent that the underlying offense be committed and the intent to aid the principal actor in the offense.\\\" Id. \\u00b6 51 (citation and internal quotation marks omitted).\\n\\u00b631 With these principles in mind, we turn to the accomplice liability instructions in this case. Instructions 33, 38, 40, 44, 45, 46, and 50 each contain identical language, replacing only the name and elements of the principal crime. In relevant part, these instructions required the jury to find:\\n1. That the defendant, Meagan Dakota Grunwald,\\n2. \\\"Intentionally,\\\" \\\"knowingly,\\\" or \\\"recklessly\\\" solicited, requested, commanded, encouraged, or\\\"intentionally\\\" aided [Garcia] who:\\n[elements of principal crime]\\n3. And that the defendant, Meagan Dakota Grunwald,\\na. Intended that [Garcia] commit the [principal crime], or\\nb. Was aware that [Garcia's] conduct was reasonably certain to result in [Garcia] committing the [principal crime], or\\nc. Recognized that her conduct could result in [Garcia] committing the [principal crime] but chose to act anyway;\\n4. And that the defense of Compulsion does not apply.\\nThis instruction appears to be based on the Utah Model Jury Instruction on accomplice liability, which reverses the order in which the elements appear in the statute. The first statutory element-\\\"acting with the mental state required for the principal offense\\\"-is addressed in paragraph 3 of the instruction. The second element-\\\"solicits, requests, commands, encourages, or intentionally aids another person to engage\\\" in the principal offense-is addressed in paragraph 2.\\n\\u00b632 Grunwald has identified three distinct errors in this jury instruction, which we address in the following order. First, by including paragraph 3(c), the instruction incorrectly permitted the jury to convict if it found that Grunwald acted recklessly, when each of the underlying offenses-unlike the offenses in Jeffs -require either an intentional or knowing mental state. Second, instead of tracking the statutory language that requires an accomplice to solicit, request, command, encourage, or intentionally aid another to commit a crime, paragraph 2 mistakenly replaced \\\"to\\\" with \\\"who,\\\" effectively eliminating the requirement that the accomplice's conduct be directed to the accomplishment of the crime. Third, in defining the \\\"knowing\\\" mental state in paragraph 3(b), the instruction focuses on Garcia's conduct rather than Grunwald's. We agree with Grunwald that the instruction misstated the law on accomplice liability in all three respects.\\nA. The Accomplice Must Have the Mental State Required for the Commission of the Principal Offense.\\n\\u00b633 The most obvious error in the accomplice liability instruction is that it permits a conviction based on a reckless mental state. Accomplice liability requires that the defendant act \\\"with the mental state required for the commission of [the principal] offense.\\\" Utah Code Ann. \\u00a7 76-2-202 (LexisNexis 2017). It is unnecessary for the accomplice to act \\\"with the same intent, or mental state, as the principal.\\\" State v. Jeffs , 2010 UT 49, \\u00b6 49, 243 P.3d 1250. But an accomplice cannot be convicted based on a lesser mental state than that required to commit the underlying offense. See State v. Calliham , 2002 UT 86, \\u00b6 64, 55 P.3d 573 (noting that \\\"accomplice liability adheres only when the accused acts with the mens rea to commit the principal offense\\\").\\n\\u00b634 This statutory element was addressed in paragraph 3 of the accomplice liability instruction. Paragraph 3 allowed the State to prove one of three alternative mental states. Paragraph 3(a) and 3(b), respectively, instructed the jury that a finding of an intentional or knowing mental state would support a guilty verdict. Paragraph 3(c) allowed the jury to convict if Grunwald acted recklessly, that is, if Grunwald recognized that her conduct could result in Garcia committing the underlying crime but chose to act anyway.\\n\\u00b635 In this case, none of the underlying crimes charged could be committed recklessly. See Utah Code Ann. \\u00a7 76-5-202 (aggravated murder requires intentionally or knowingly causing death); id. \\u00a7 76-10-508.1(1) (felony discharge of a firearm requires knowingly endangering a person or intent to intimidate or harass); id. \\u00a7 76-6-106(2)(c) (criminal mischief requires intentional property damage); id. \\u00a7 76-6-301-302 (aggravated robbery requires intentional taking by means of force or fear or intentionally or knowingly using force or fear during theft). As a result, the State properly concedes that \\\"including the reckless mental state was erroneous because, as [Grunwald] correctly argues, all of the accomplice liability crimes required the jury to find either an intentional or knowing mental state.\\\"\\n\\u00b636 It was error to instruct the jury in paragraph 3(c) that it could convict Grunwald as an accomplice if she \\\"[r]ecognized that her conduct could result in [Garcia] committing the [principal crime] but chose to act anyway.\\\" Instead, Grunwald could not be held liable as an accomplice unless she either intended or knew that her conduct-i.e., intentionally, knowingly, or recklessly soliciting, requesting, commanding encouraging or intentionally aiding Garcia-would result in the commission of the principal crime. By allowing the jury to convict if it found Grunwald acted recklessly as to the results of her conduct, the instructions impermissibly reduced the State's burden with respect to the mental state element.\\nB. The Accomplice's Conduct Must Be Directed at Committing the Principal Offense.\\n\\u00b637 The second error Grunwald identified relates to the requirement that an accomplice's conduct must be directed toward accomplishing the principal offense. Paragraph 2 of the accomplice liability instructions allowed the jury to find Grunwald guilty if she \\\"intentionally, knowingly, or recklessly solicited, requested, commanded or intentionally aided [Garcia] who \\\" committed the principal crime. The State concedes that the instruction misstates the statutory language, which imposes accomplice liability on one \\\"who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense.\\\" Utah Code Ann. \\u00a7 76-2-202 (LexisNexis 2017) (emphasis added). However, the State argues that the substitution of the word \\\"who\\\" for the word \\\"to\\\" does not render the jury instructions erroneous when read as a whole.\\n\\u00b638 While the substitution of a single word might seem insignificant and might be so in other contexts, substituting \\\"who\\\" for \\\"to\\\" fundamentally changed what the State was required to prove to convict Grunwald as an accomplice. As explained in Jeffs , an accomplice must act with the requisite mental state \\\"as to the results of his conduct\\\" and \\\"the results of his conduct must be a criminal offense.\\\" State v. Jeffs , 2010 UT 49, \\u00b6 44, 243 P.3d 1250. In other words, an accomplice's conduct must be directed at accomplishing the principal crime. Here, to convict Grunwald as an accomplice, she had to either intend for her conduct to result in Garcia's commission of the underlying crimes or know that her conduct was reasonably certain to cause that result. See Utah Code Ann. \\u00a7 76-2-103(1) - (2) (defining \\\"intentionally\\\" and \\\"knowingly\\\" mens rea).\\n\\u00b639 To adequately convey this requirement to the jury, the instruction should have required the State to prove that Grunwald solicited, requested, commanded, encouraged, or aided Garcia to commit the crime. By substituting the word \\\"who,\\\" the instruction permitted the jury to find Grunwald guilty if she solicited, requested, commanded, encouraged, or aided Garcia in any way, so long as Garcia committed the principal crimes. The instructions thus failed to convey the statutory requirement that an accomplice must have the requisite mens rea to commit the principal offense.\\nC. The Accomplice's Mental State Must Relate to the Results of the Accomplice's Conduct.\\n\\u00b640 The third error identified by Grunwald relates to the requirement that an accomplice act with the requisite mental state as to the results of her own conduct. Paragraph 3(b) of the jury instruction, which addresses the \\\"knowing\\\" mental state, allowed the jury to convict her as an accomplice if she \\\"[w]as aware that the principal actor's . conduct was reasonably certain to result in the principal actor . committing the [underlying crime].\\\" Grunwald contends that \\\"the instructions defined the knowing mental state with regard to Garcia's conduct, not her own.\\\" We agree.\\n\\u00b641 A person acts \\\"knowingly\\\" if \\\"he is aware that his conduct is reasonably certain to cause the result.\\\" Utah Code Ann. \\u00a7 76-2-103(2) (LexisNexis 2017). Thus, an accomplice acts knowingly if \\\"the accomplice knows that his conduct will most likely cause\\\" the principal crime. State v. Jeffs , 2010 UT 49, \\u00b6 45, 243 P.3d 1250. The accomplice liability instructions misstated the law by permitting a conviction if Grunwald knew that Garcia's conduct-rather than her own-was reasonably certain to result in the commission of the principal crimes. The jury should have been instructed to find Grunwald not guilty unless the State proved that she acted intentionally or knowingly as to the results of her own conduct in accomplishing the principal crime.\\n\\u00b642 Through this combination of errors, the jury instructions improperly allowed the jury to convict Grunwald as an accomplice under three impermissible scenarios: (1) if she acted recklessly as to the results of her conduct, rather than intentionally or knowingly; (2) if she directed her actions to some purpose other than the commission of the principal crime; or (3) if she acted knowing that Garcia's actions, rather than her own, were reasonably certain to result in the commission of the principal crime. These errors had the effect of reducing the State's burden of proof at trial. While we recognize that Grunwald's primary defense was compulsion, no reasonable trial strategy would justify trial counsel's failure to object to instructions misstating the elements of accomplice liability in a way that reduced the State's burden of proof. See State v. Barela , 2015 UT 22, \\u00b6 27, 349 P.3d 676 (holding that \\\"no reasonable lawyer would have found an advantage in understating the mens rea requirement\\\" regardless of whether the error related to the defense theory). As a result, trial counsel was deficient for failing to object to the instructions on Counts One through Seven and Count Eleven.\\nII. Prejudice\\n\\u00b643 Deficient performance does not require reversal unless the defendant establishes that \\\"a reasonable probability exists that, but for counsel's error, the result would have been different.\\\" State v. Millard , 2010 UT App 355, \\u00b6 18, 246 P.3d 151 (citation and internal quotation marks omitted). Grunwald contends that \\\"if the jury had been properly instructed on the law of accomplice liability and the mental states required to prove [that she] acted as an accomplice, . there is a reasonable probability the jury would have had a reasonable doubt.\\\" The State asserts that the errors in this case were not prejudicial because (1) \\\"none of the errors [Grunwald] identifies affected her primary defense-compulsion,\\\" and (2) \\\"the objective evidence overwhelmingly demonstrated that [Grunwald] and [Garcia] worked in concert and that she was his loyal teammate.\\\"\\n\\u00b644 To be clear, the burden is on the defendant to affirmatively prove prejudice. See State v. Garcia , 2017 UT 53, \\u00b6 36, 424 P.3d 171. \\\"It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.\\\" Strickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Instead, \\\"[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Id. at 694, 104 S.Ct. 2052. \\\"A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. This is \\\"a relatively high hurdle to overcome.\\\" Garcia , 2017 UT 53, \\u00b6 44, 424 P.3d 171.\\n\\u00b645 To determine whether a defendant has met this burden, a reviewing court \\\"needs to focus on the evidence before the jury and whether the jury could reasonably have found\\\" the facts in the defendant's favor \\\"such that a failure to instruct the jury properly undermines confidence in the verdict.\\\" Id. \\u00b6 42. Here, because there were three errors in the jury instructions, we must assess whether there is a reasonable probability that the jury convicted due to any one of those errors and otherwise \\\"would have had a reasonable doubt respecting guilt.\\\" Strickland , 466 U.S. at 695, 104 S.Ct. 2052.\\n\\u00b646 In assessing each conviction, we assume that the jury found beyond a reasonable doubt both that Garcia committed the principal crimes and that Grunwald \\\"intentionally, knowingly, or recklessly solicited, requested, commanded, encouraged, or intentionally aided\\\" Garcia. Grunwald does not challenge these aspects of the accomplice jury instructions or the sufficiency of the evidence to support these findings. We refer to the act of soliciting, requesting, commanding, encouraging, or intentionally aiding Garcia as Grunwald's \\\"conduct,\\\" or as \\\"intentionally aiding\\\" because that variant is most applicable to the facts of this case. With those assumptions in mind, we ask the following questions to determine whether Grunwald suffered prejudice based on any one of the three errors in the jury instructions:\\n\\u2022 Is there a reasonable probability that the jury found Grunwald acted recklessly, rather than knowingly or intentionally, as to whether her conduct would result in the commission of the principal crime?\\n\\u2022 Is there a reasonable probability that the jury found that Grunwald's conduct was not directed to Garcia's commission of the crime?\\n\\u2022 Is there a reasonable probability that the jury found that Grunwald knew that Garcia's conduct, but not necessarily her own, was reasonably certain to result in the crime?\\n\\u00b647 We first address those convictions where there is no reasonable probability that the erroneous jury instructions affected the outcome of the trial. We then turn to those convictions where there is a reasonable probability that the jury might well have acquitted Grunwald if it had been properly instructed.\\nA. Grunwald Has Not Established Prejudice with Respect to Counts One and Eleven.\\n\\u00b648 Based on our review of the evidence presented at trial, we conclude there is no reasonable probability that the jury would have acquitted Grunwald on Counts One and Eleven but for the erroneous instructions on accomplice liability.\\n1. Aggravated Murder of Sergeant Wride (Count One)\\n\\u00b649 Count One charged Grunwald as an accomplice to the crime of aggravated murder arising from the shooting death of Sergeant Wride. To convict Grunwald of this charge, the State had to prove that Grunwald either intended that her conduct would result in Garcia committing the crime of aggravated murder or that she was aware that her conduct was reasonably certain to result in Garcia committing that crime. See Utah Code Ann. \\u00a7 76-2-202 (LexisNexis 2017) (accomplice liability); see also id. \\u00a7 76-5-202(1) (aggravated murder); id. \\u00a7 76-2-103(1) - (2) (mens rea definitions). Based on the evidence presented at trial, we conclude that there is no reasonable probability that the jury would have acquitted Grunwald of this count if it had been correctly instructed on accomplice liability.\\n\\u00b650 First, there is no reasonable probability that the jury based its verdict on a finding that Grunwald was merely reckless as to the results of her conduct. It was undisputed that Garcia was holding a gun and looking back at Sergeant Wride's patrol car when Garcia stated that he was \\\"going to buck [the officer] in the fucking head.\\\" Although Grunwald claimed that she did not know the meaning of the term \\\"buck\\\" and assumed police cars had bulletproof windshields, no reasonable person could have misinterpreted Garcia's objective under the circumstances. If Garcia had not been holding the gun when he stated his intent to do something to Sergeant Wride \\\"in the head,\\\" the situation might have been more ambiguous, creating a real possibility that the jury convicted Grunwald for recklessly disregarding the risk that her conduct would result in the murder. But under the circumstances, there is no reasonable probability that the jury convicted on this basis.\\n\\u00b651 Second, there is no reasonable probability that the jury convicted Grunwald because she aided Garcia in some way other than to commit the crime of aggravated murder. The undisputed evidence showed that, after Garcia announced his intention, Grunwald applied the brake, enabling the truck to shift into drive. It is unclear whether Grunwald or Garcia shifted the truck into drive, see supra \\u00b6 8 n.3, but there is no dispute that she did not immediately attempt to drive away or to shift back into park. Instead, she held her foot on the brake for three-and-a-half minutes while Garcia shifted in his seat to get into position to fire. Grunwald was observed watching traffic behind the truck from her side view mirror, which allowed her to see around Sergeant Wride's vehicle and to monitor the traffic approaching from behind. Garcia waited to open fire until there was a significant lull in traffic, leading to a reasonable inference that Grunwald was helping Garcia time the shooting to avoid witnesses and to ensure a safe and speedy getaway. In addition, Grunwald did not accelerate until after several shots were fired, strongly suggesting that she waited to flee until after the murder had been accomplished. By remaining stationary, keeping a lookout, and acting as the getaway driver, Grunwald enabled Garcia to fire the shots that killed Sergeant Wride.\\n\\u00b652 Grunwald argues that \\\"this evidence, the brake lights, the gear shifting, watching the traffic and eventually driving away,\\\" was \\\"not the only evidence the jury heard of [Grunwald] soliciting, requesting, commanding, or aiding Garcia,\\\" and thus the jury could have relied on a different factual basis in reaching its verdict. For example, Grunwald argues that the jury might have convicted her because she failed to tell Sergeant Wride that there was a warrant for Garcia's arrest, or that Garcia had just provided false information or even because she had aided Garcia in various ways in the past. We consider it highly improbable that the jury convicted on such a theory. In closing argument, the State asked the jury to find that Grunwald \\\"intentionally aided the principal actor\\\" when she prepared for the shooting by \\\"shift[ing] her car into drive, and [putting] the brakes on, holding on until they're ready\\\"; watched her mirror for a break in traffic so that \\\"others would not witness the murder\\\" and so that there would be no cars around to \\\"preclude their getaway\\\"; and then drove away to safety, \\\"protecting herself and her man from apprehension.\\\" Given that the State focused solely on these actions in arguing that Grunwald was guilty on Count One, it is highly improbable that the jury would have convicted Grunwald based on other conduct.\\n\\u00b653 Third, there is no reasonable probability that the jury convicted Grunwald on the theory that she knew Garcia was going to shoot Sergeant Wride but did not know that her conduct would result in Garcia committing that crime. As detailed above, the State presented persuasive evidence that Grunwald's own actions were designed to help Garcia commit the crime. Consequently, Grunwald's defense at trial depended on the jury believing her claim that Garcia pointed his gun at her head, compelling her to assist him. In returning a guilty verdict, the jury necessarily rejected the compulsion defense. Once it did so, the only reasonable conclusion from the evidence was that Grunwald intended or knew that her conduct in keeping the truck in drive with her foot on the brake, watching for a lull in traffic, and preparing to flee, would result in Garcia committing the crime of aggravated murder.\\n\\u00b654 Even if the jury had been correctly instructed on accomplice liability, there is no reasonable probability that it would have acquitted on Count One. Accordingly, we affirm Grunwald's aggravated murder conviction.\\n2. The Carjacking (Count Eleven)\\n\\u00b655 Similarly, there is no reasonable probability that but for the erroneous instructions the jury would have reached a different result on Count Eleven, which charged Grunwald as an accomplice to aggravated robbery based on the carjacking. To convict Grunwald of this crime, the State had to prove that Grunwald either intended that her conduct would result in Garcia committing the crime of aggravated robbery or that she was aware that her conduct was reasonably certain to result in Garcia committing that crime. See Utah Code Ann. \\u00a7 76-2-202 (LexisNexis 2017) (accomplice liability); id. \\u00a7 76-6-301 (robbery); id. \\u00a7 76-6-302 (aggravated robbery); id. \\u00a7 76-2-103(1) - (2) (mens rea definitions).\\n\\u00b656 The evidence at trial showed that Grunwald and Garcia abandoned her disabled truck after exiting I-15 at the Nephi Main Street exit. The videotape introduced at trial shows Garcia running away from the truck and Grunwald following. Grunwald testified that as soon as they left the truck, Garcia told her \\\"to find a fucking car.\\\" Grunwald ran toward a passing motorist's vehicle, waving the motorist down. On cross-examination, Grunwald acknowledged that she stopped the driver, enabling Garcia to \\\"point his gun at her and get her out.\\\" As soon as the vehicle came to a stop, Grunwald opened the passenger side door and climbed in as Garcia ordered the driver out of the driver's seat at gunpoint.\\n\\u00b657 In her testimony, Grunwald claimed that Garcia threatened her, at one point turning the gun on her and telling her \\\"to fucking hurry.\\\" She testified that she \\\"was scared for dear life\\\" and had \\\"no choice\\\" but to participate in the carjacking. But once the jury had rejected her compulsion defense, the evidence left no room for any other conclusion except that Grunwald intentionally aided Garcia to commit the carjacking.\\n\\u00b658 Based on this evidence, there is no reasonable probability that the jury convicted Grunwald because she was merely reckless as to whether her conduct could result in a carjacking. Nor is there any question that she intentionally aided Garcia in committing the carjacking itself, as opposed to intentionally aiding him in some other manner. Finally, because Grunwald's mens rea with respect to the carjacking cannot be characterized as anything less than intentional, there is no reasonable probability that the jury convicted her based on the erroneous \\\"knowingly\\\" instruction. The evidence permitted no conclusion other than that Grunwald intended her own conduct in waving down a passing motorist to result in the carjacking. Accordingly, we affirm Grunwald's aggravated robbery conviction.\\nB. Grunwald Has Established Prejudice on the Remaining Counts.\\n\\u00b659 On the remaining counts, we conclude that there is a reasonable probability that Grunwald may have received a more favorable outcome but for the erroneous jury instructions. We begin with those counts arising from the shots fired at Trooper Blankenagel and at the semi-trailer truck, where the evidence suggesting that Grunwald intended or knew that her conduct would result in the principal crimes was weakest. We then turn to the convictions relating to the shooting of Deputy Sherwood. Although the State presented stronger evidence relating to those counts, our confidence in those convictions is ultimately undermined by the erroneous jury instructions.\\n1. Shooting at Trooper Blankenagel (Count Five)\\n\\u00b660 Count Five charged Grunwald as an accomplice to felony unlawful discharge of a firearm based on the shots Garcia fired at Trooper Blankenagel. The evidence presented at trial showed that Trooper Blankenagel spotted Grunwald's truck on I-15 and gave chase. Grunwald saw Trooper Blankenagel following the truck with the patrol vehicle's overhead lights on, but she continued driving up to 110 miles per hour. After a few miles, Garcia fired at Trooper Blankenagel from the back window of the truck. The bullet did not strike the vehicle, but the pursuit ended when Trooper Blankenagel hit a spike strip that had been deployed to stop Grunwald.\\n\\u00b661 At trial, the State argued that Grunwald intentionally aided Garcia \\\"by driving and enabling him to shoot.\\\" The State argued that, by the time Garcia fired at Trooper Blankenagel, Grunwald was \\\"more than aware of what [Garcia] could and would do,\\\" suggesting that she knew Garcia would fire at any officer who attempted to apprehend them but chose to continue driving anyway. On appeal, the State does not specifically address whether Grunwald suffered prejudice with respect to this count, other than to argue generally that the evidence overwhelmingly refuted Grunwald's compulsion defense and established that she was Garcia's willing partner throughout the crime spree.\\n\\u00b662 In finding Grunwald guilty, the jury clearly rejected her attempt to distance herself from Garcia and found that she was a willing participant. But a willing participant as to what? As Jeffs makes clear, an accomplice must act with the requisite mental state \\\"as to the results of [her] conduct\\\" and \\\"the results of [her] conduct must be a criminal offense.\\\" State v. Jeffs , 2010 UT 49, \\u00b6 44, 243 P.3d 1250.\\n\\u00b663 Based on the evidence presented at trial, it is certainly possible the jury found that Grunwald intended or reasonably knew that her conduct-that is, continuing to drive, leaving Garcia free to aim and fire his gun-would result in Garcia shooting at Trooper Blankenagel. Garcia had demonstrated that he would open fire on law enforcement and the jury could have reasonably inferred that Grunwald intended or knew that her conduct was reasonably certain to result in Garcia shooting at other pursuing officers. However, it is at least equally likely that the jury convicted because Grunwald intentionally aided Garcia by continuing to drive, even though she did not have the mental state required for the commission of the underlying crime-unlawful discharge of a firearm. Unlike the evidence supporting Count One, there was no evidence that Garcia announced his intention to discharge the firearm at Trooper Blankenagel or that Grunwald undertook some action specifically designed to accomplish that crime, such as holding her foot on the brake, watching for traffic, and fleeing as soon as the crime was accomplished.\\n\\u00b664 There is a reasonable probability that the jury convicted on Count Five based on one or more of the three errors in the jury instructions. First, the jury may have improperly convicted Grunwald based on a reckless mental state, finding that Grunwald recognized that her conduct could result in Garcia discharging the firearm but chose to continue driving anyway. Second, there is a reasonable probability that the jury convicted even though it found that Grunwald's conduct in continuing to drive was directed to helping Garcia evade law enforcement, a different and uncharged crime, not to the commission of unlawfully discharging his firearm. And, third, there is a reasonable probability that the jury may have convicted without finding that Grunwald knew that her own conduct in driving the truck was reasonably certain to result in the crime. Because of the likelihood of a more favorable outcome if the jury had been correctly instructed, we must vacate Grunwald's conviction on Count Five.\\n2. The Shooting at the Semi-Trailer Truck (Counts Six and Seven)\\n\\u00b665 Counts Six and Seven charged Grunwald as an accomplice to the crimes of felony discharge of a firearm and criminal mischief, respectively, based on the shooting that damaged the semi-trailer truck. As in Count Five, the trial evidence relating to this event was sparse. Shortly after evading Trooper Blankenagel, as Grunwald continued to drive down I-15, Garcia fired three shots out the passenger side window at the semi-trailer truck.\\n\\u00b666 Like Count Five, the State's theory of accomplice liability on Counts Six and Seven is based on Grunwald intentionally aiding Garcia by driving the truck. As a result, our analysis of Count Five applies equally here. There is a reasonable probability that the jury convicted Grunwald on Counts Six and Seven because she intentionally aided Garcia by continuing to drive, even though she did not intend or know that her conduct would result in Garcia firing at the semi-trailer truck. Given the lack of evidence showing that Grunwald acted with the requisite mental state to commit the underlying crimes, there is a reasonable probability that the jury would have had a reasonable doubt regarding Grunwald's guilt if it had been properly instructed. Therefore, we must vacate the convictions on Counts Six and Seven.\\n3. The Shooting of Deputy Sherwood (Counts Two and Three)\\n\\u00b667 Counts Two and Three charged Grunwald as an accomplice to the crimes of attempted aggravated murder and felony unlawful discharge of a firearm causing serious bodily injury, respectively. Both counts related to the shooting of Deputy Sherwood.\\n\\u00b668 The evidence at trial showed that, as Deputy Sherwood approached the truck on Main Street in Santaquin, Grunwald initially accelerated and maneuvered past cars in an apparent attempt to outrun him. But then Grunwald suddenly applied her brakes, reducing the distance between her truck and Deputy Sherwood. At that point, Garcia fired through the truck's back window, striking Deputy Sherwood in the head and causing serious bodily injury. Immediately after the shooting, Grunwald accelerated and then quickly made a U-turn to head back onto I-15.\\n\\u00b669 In contrast to Counts Five through Seven, which relied solely on Grunwald's continued driving, the State presented evidence suggesting that she took additional action designed to enable the commission of these crimes. Specifically, the videotape from Deputy Sherwood's dash camera shows that Grunwald abruptly applied the brakes right before Garcia began firing. In closing argument, the State focused on Grunwald's conduct, arguing that \\\"she hits her brakes, slows down, closes the gap between [her truck] and Deputy Sherwood\\\" thereby \\\"helping [Garcia] accomplish the attempted aggravated murder\\\" and the felony discharge of a firearm resulting in serious bodily injury.\\n\\u00b670 However, the evidence leaves significant doubt as to whether Grunwald intended that conduct to result in Garcia committing these crimes or knew it was reasonably certain to have such a result. At trial, Grunwald testified that she slowed down because of the traffic in front of her. This explanation was supported by the video from Deputy Sherwood's patrol car, showing slower vehicles ahead in Grunwald's lane. In addition, Deputy Sherwood testified that Grunwald would have had to slow down to avoid hitting the car in front of her.\\n\\u00b671 On the other hand, there was also evidence to suggest that Grunwald did have the requisite intent to aid in the commission of these crimes. Grunwald knew that Garcia had previously fired at an officer, knew that they were being pursued by a police car, and knew that Garcia still had the gun. Grunwald admitted at trial that she could have used the left turn lane to swerve around the cars in her path. Immediately after Garcia fired at Deputy Sherwood, Grunwald sped up again. Based on this evidence, the jury reasonably might have inferred that she chose to suddenly brake at that moment, intending or knowing that her conduct would give Garcia the opportunity to shoot at the officer in pursuit. Even without the braking, the jury could have reasonably inferred that Grunwald continued to drive the truck for the purpose of ensuring that Garcia's hands would be free to shoot at any pursuing officers. Had the jury been correctly instructed, this evidence would be sufficient to support the convictions on Counts Two and Three.\\n\\u00b672 However, we lack confidence that the jury would have reached the same result but for the errors in the accomplice liability instructions. Once the jury rejected the compulsion defense, there was no question that Grunwald had intentionally aided Garcia by driving the truck. But the instructions failed to explain how that intentional aid must relate to the commission of the underlying offenses.\\n\\u00b673 As in Counts Five through Seven, there is a reasonable probability that the jury convicted Grunwald of Counts Two and Three based on one or more of the errors in the jury instructions. First, the jury may have improperly convicted Grunwald because she intentionally aided Garcia by driving the truck even though she was merely reckless as to whether her continued driving would result in Garcia shooting at Deputy Sherwood. Second, the instructions allowed the jury to convict if Grunwald's purpose in driving the truck was to aid Garcia in avoiding apprehension or to achieve some objective other than the commission of the charged crimes. Third, the jury may have convicted Grunwald because she knew that Garcia's conduct, but not her own, was reasonably certain to result in Garcia firing at Deputy Sherwood.\\n\\u00b674 In sum, given the evidence presented, there is a reasonable probability that the jury convicted on these counts without finding that Grunwald intentionally or knowingly directed her conduct to aid Garcia in committing the principal crimes. Accordingly, we vacate the convictions on these counts.\\nCONCLUSION\\n\\u00b675 By failing to object to jury instructions that misstated the law regarding accomplice liability, Grunwald's trial counsel's performance fell below the level of representation guaranteed by the federal and state constitutions. Having carefully reviewed the evidence at trial, we conclude that there is no reasonable probability that the deficient performance affected the verdict on Counts One and Eleven, and therefore, we affirm those convictions. However, there is a reasonable probability that Grunwald may have secured an acquittal on the remaining counts had the jury been correctly instructed on the law. As a result, we vacate and remand for a new trial on Counts Two, Three, Five, Six, and Seven.\\n\\\"This court typically does not include the names of crime victims, witnesses, or other innocent parties in its decisions. We make an exception in this case due to the considerable notoriety this criminal episode has attracted. The . identity [of the officers involved in this case] is well known, and obscuring [their] identit[ies] in this decision would serve no purpose.\\\" State v. Chavez-Reyes , 2015 UT App 202, \\u00b6 2 n.2, 357 P.3d 1012.\\nOn appeal, Grunwald does not challenge her convictions for fleeing an accident scene (Count Nine), failure to respond to an officer's signal to stop (Count Ten), and possession of a controlled substance (Count Twelve), in which she was charged as a principal. She was additionally charged as an accomplice to attempted aggravated murder for the shots fired at Trooper Blankenagel (Count Four), but she was acquitted of that charge.\\nWhile Grunwald testified that Garcia shifted the truck into drive, the State's theory at trial was that Grunwald herself shifted the truck into drive in preparation for the subsequent shooting. Our analysis does not turn on whether the jury believed that Garcia or Grunwald operated the gearshift.\\n\\\"Mens rea\\\" means \\\"[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.\\\" Mens Rea , Black's Law Dictionary (10th ed. 2014).\\nThe inclusion of recklessness in paragraph 3 is not to be confused with the use of the term \\\"recklessly\\\" in paragraph 2. Paragraph 3 deals with the element that the accomplice must have the mental state required to commit the principal offense. On the other hand, paragraph 2 deals with the separate element that the accomplice must solicit, request, command, encourage, or intentionally aid the principal. As Grunwald acknowledges, \\\"Because the statute does not designate what mental state is required for these acts [of soliciting, requesting, commanding, or encouraging] and because it is not a strict liability statute, any of the three recognized mental states apply.\\\" See Utah Code \\u00a7 76-2-101 (LexisNexis 2017). As a result, paragraph 2 correctly required the jury to find that Grunwald \\\" '[i]ntentionally,' 'knowingly,' or 'recklessly' solicited, requested, commanded, encouraged, or'intentionally' aided\\\" Garcia. The error was the inclusion of paragraph 3(c), which allowed the jury to convict Grunwald if she \\\"[r]ecognized that her conduct could result in [Garcia] committing the [principal crime] but chose to act anyway.\\\"\\nThe State argues that the accomplice liability instructions remedied any ambiguity created by the \\\"who\\\"/\\\"to\\\" error in paragraph 2 because paragraph 3 required the jury to find that Grunwald either intended that Garcia commit the charged crimes, knew that he would do so, or was reckless as to whether he would do so. The State contends that, when read as a whole, the instruction required the jury not only to find that Grunwald aided Garcia but to find that she intended, through her aid, to assist him in committing the crimes. However, as explained in this opinion, paragraph 3(b) incorrectly focused on the results of Garcia's actions, rather than the results of Grunwald's actions, and paragraph 3(c) erroneously allowed the jury to convict based on recklessness. Given these additional errors, we cannot say that the jury instructions, when read as a whole, adequately stated the law.\\nIn so ruling, we recognize that Grunwald stands convicted of aggravated murder and aggravated robbery, for which she is serving consecutive sentences of twenty-five years to life and five years to life, respectively. Our remand for a new trial on the counts requiring reversal is the relief to which she is entitled for her partial success on appeal. Whether she will be retried on those counts is, of course, a judgment call for the State.\"}"

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+"{\"id\": \"62919\", \"name\": \"BARLOW v. CLEARFIELD CITY CORP. et al.\", \"name_abbreviation\": \"Barlow v. Clearfield City Corp.\", \"decision_date\": \"1954-03-26\", \"docket_number\": \"No. 8136\", \"first_page\": \"419\", \"last_page\": \"429\", \"citations\": \"1 Utah 2d 419\", \"volume\": \"1\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:23:14.814959+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonough and crockett, jj., and WM. STANLEY DUNFORD, District Judge, concur.\", \"parties\": \"BARLOW v. CLEARFIELD CITY CORP. et al.\", \"head_matter\": \"268 P.2d 682\\nBARLOW v. CLEARFIELD CITY CORP. et al.\\nNo. 8136.\\nSupreme Court of Utah.\\nMarch 26, 1954.\\nGeorge B. Handy, Ogden, for plaintiff. Howell, Stine & Olmstead, Ogden, Wm. H. King, Clearfield, for defendant.\", \"word_count\": \"4503\", \"char_count\": \"26611\", \"text\": \"WADE, Justice.\\nPlaintiff, Barlow, a resident and taxpayer of defendant Clearfield, a third-class city in Davis County, Utah, petitions this court for a writ against that city and the defendant Weber Basin Water Conservancy District enjoining them from performing a contract between them whereby the district undertakes to supply the city a perpetual right to the use of 1,000 acre-feet of culinary water per annum. Plaintiff claims that such contract is void. The writ was issued and the defendants filed their return without raising any issue of fact praying that the writ be recalled and the petition dismissed because it fails to state a claim on which relief can be granted.\\nOn August 29, 1949, Congress authorized the Bureau of Reclamation to construct the Weber Basin Project as outlined in a report by the Regional Director of the Bureau of Reclamation to the Department of Interior dated July 15, 1949. Thereafter the Weber Basin Water Conservancy District, encompassing Weber, Davis and Morgan Counties and most of Summit, was organized under the Utah Water Conservancy Act, to conserve the waters of the Weber River and its tributaries by contracting with the United States for the construction of such project and by selling to consumers the water rights thereby created and by other appropriate actions. On December 6, 1952, an election throughout the district was held to authorize the district to enter into such a contract with the United States for the construction of the project at the overall cost of $70,385,000, of which $57,694,000 would be repaid by the district in annual installments over a 60 year period, and to issue $6,500,000 in bonds to finance the -cost of constructing filtration plants, water lines and other facilities for the treatment and delivery of culinary water to municipalities. The vote was overwhelmingly in favor of both propositions and on December 12, 1952, the district entered into the contract with the United States and since then has been proceeding to provide for the bond issue and to contract for the sale of the water rights to be created under such project.\\nThe project contemplates the appropriation and conservation for culinary, irrigation and other beneficial use of the Weber River system's remaining unappropriated waters. The natural flow of the waters of this system is erratic and fluctuates widely from season to season and year to year, with a large spring run-off and a very greatly reduced flow during the other seasons of the year. Before the turn of the century most of the flow except for the spring floods had been appropriated mostly for the irrigation of crops but because of the re-occurrence of dry years crop failures were not uncommon. To correct this situation storage reservoirs were constructed on the system beginning in 1896 with the East Canyon Reservoir which was enlarged in 1916, and the construction in 1929 of the Echo Reservoir and the Pineview Reservoir in 1936, which with several smaller ones have a combined storage capacity of 150,000 acre-feet. At present an average of only about 60 per cent of the total make of the system is utilized; the other 40 per cent runs to waste into the Great Salt Lake during the spring and winter run-off, often flooding over the river banks and causing great damage.\\nThe Weber Basin area is a highly developed agricultural and industrial section in which the population is increasing rapidly. There are about 33 municipalities requiring additional culinary water supply for their normal growth and development, each of which is proceeding along the same lines as Clearfield to obtain such additional water supply and is interested in the outcome of this action. Nearly all the land under cultivation requires a supplemental water supply and there is much undeveloped land for lack of available water. This is the only available source from which such water can be supplied.\\nThe project contemplates the construction of at least five new reservoirs and the enlargement of two. In all, 418,000 acre-feet of new storage capacity is contemplated with an increase of useful water supply for the area at canal heads of an average of 285.000 acre-feet annually, of which 245,000 acre-feet will be used for irrigation and 40.000 acre-feet for municipal purposes. It is expected to provide full season supply to irrigate 100,400 acres, including 70,400 acres of new lands now unirrigated. The construction of an aqueduct from the mouth of Weber Canyon about eight miles to the north onto the bench lands south of Ogden, and one to the south of the mouth of that canyon for about 23 miles to Bountiful City is contemplated, together with several new gravity canals, pumping plants, infiltration plants for culinary water with transmission lines to the various municipalities and many other features.\\nAs provided by law on October 27, 1953, Clearfield petitioned the district for allotment to it of 1,000 acre-feet of water annually. After it was noticed for hearing, plaintiff filed written objections but the petition was granted by resolution of its Board of Directors on November 27, 1953. This petition and the resolution granting it constitute the contract which plaintiff seeks to nullify. Further details of this contract will be noted in later discussions.\\nThe plaintiff contends that the contract is void because:\\n1. It requires the city to pay a specified amount annually whether it calls for or uses all or any part of the water allotted to it, and the city thereby loans its credit to the district contrary'to Article 6, section 31, of the Constitution of Utah.\\n2. The terms of the contract are so unreasonable that they are void.\\n3. The contract creates a debt by the city in excess of the taxes for the current year without the approval of a majority of the taxpaying voters of such city, and it creates a debt in excess of 12 per cent of the city's assessed valuation contrary to the provisions of Article 14, sections 3 and 4 of the Constitution of Utah. We will consider these points in the order above stated:\\n1. This contract does not provide for a loan of the city's credit to the District. The basis of this contention is that this contract is a subterfuge under which the city purports to purchase a water right which it has no use for and thereby loans it credit to the District. Under the contract the city is allotted 1,000 acre-feet per year of water which is presently in the average year more than enought to satisfy its requirements. For this water right the contract requires a total payment of $20,500 annually for the first three years in which water is available for use by the ctiy, of $22,500 annually for the next three years, of $25,500 annually for the next four years, of $31,000 annually for the next thirty years and of $15,000 annually for the next twenty years, making a total of $1,461,000. It further provides that the annual amount specified \\\"shall be paid whether or not all or any part of the water allotted is called for or used by the City\\\"; and that in the event of a water shortage \\\"no liability shall accrue against the District, or the United States, or any of their officers, agents or employees\\\" and that \\\"the payment to the District provided for herein shall not be reduced because of such shortage\\\" and that during \\\"periods of water shortage allocations of municipal water shall have first priority.\\\" There is no claim that the contract was not made in good faith to supply a genuine need of the city or that the city will not receive and use a substantial portion of the allotted water or that the amount of water allotted and to be paid for is more than a reasonable reserve supply to provide against times of extreme drouth and for the future growth and development of the city. Since the project contemplates the creation of 418,000 acre-feet of new storage capacity with an average annual increase of 285,000 acre-feet of water for use at the canal heads, of which 245,000 acre-feet will be used for irrigation and only 40,000 acre-feet for municipal use which has first priority in times of shortage, the possibility of a shortage of municipal water seems quite remote. Nor can we assume that the city will fail to call for or use any part of this water which it needs, or fail to advantageously dispose of to others, where possible, any surplus which it does not need.\\nUnder statute the city may \\\"acquire, purchase or lease all or any part of any water, waterworks system, water supply or property connected therewith, It may \\\"construct, purchase or lease and maintain canals, ditches, artesian wells and reservoirs, may appropriate, purchase or lease springs, streams or sources of water supply for the purpose of providing water for irrigation, domestic or other useful purposes; and \\\"may construct, maintain and operate waterworks, or purchase or lease such works and they may sell and deliver the surplus product or service of any such works, not required by the city or its inhabitants .\\\" These statutes clearly authorize the city to acquire by any lawful means sufficient water to satisfy its reasonably anticipated needs in view of probable periods of drouth and the normal future growth and development of the city. It is expressly authorized to sell and deliver to others any surplus product not required by the city or its inhabitants, thus clearly authorizing the city to provide a reserve supply for emergencies and future growth and development. Since there is no indication that the allotment is greater than necessary to supply the reasonably anticipated future needs of the city, or that there is any likelihood that substantially more water will be paid for than used, this is not a case of lending the city's credit, but a bona fide con tract to supply the city's culinary water needs.\\n2. The terms of the contract are not so unreasonable as to make it void. To support his contention plaintiff cites the terms discussed above with some additional ones, to wit: 1. That the city does not need all the water allotted. 2. That the full annual payment is required even though the water is not called for or used or is unavailable. 3. That the price is exorbitant and 4. That the payments are strung out over too long a period. We have already pointed out that the surplus supply is merely a reasonable reserve to provide against drouth periods and for the future growth of the city and that although the full annual payments must be made whether the full 1,000. acre-feet are used or not, it is quite improbable that a substantial portion of that water will not be used. Also the annual installments are not merely a payment for the water allotted for the year the payment is made but all of the installments together constitute the full payment for making the water permanently available, and after the sixty annual installments are paid only small operating . and repair costs will continue. Periodic installments of the purchase price of property seldom are reduced on account of the failure of the purchaser to use the article purchased. As to the claim that the price is high and strung out over too long a . time, there is no claim that an adequate water supply can be obtained for less money or is other wise obtainable at any price. This is a large project, it looks to the conservation of all of the waters of the Weber River System, it would be impossible for a part of this District to undertake the development of only sufficient water for its use and impractical to require the payment to be made over a substantially shorter period. Water is the life stream of this western country, the territory covered by this district will have its growth stunted without this development and that is particularly true of this city. In view of all these facts the terms of this contract are not unreasonable.\\n3. The last point raises the question whether the total of the sixty installments is a \\\"debt\\\" or \\\"indebtedness\\\" of Clearfield City as those terms are used in Article 14, sections 3 and 4 of our Constitution. Such total exceeds the taxes for the current year and is more than 12 per cent of the assessed valuation of the taxable property of the city, so such total exceeds any possible debt which the city can incur. The obligation to make such payments is created from the petition of the city approved by the District for a perpetual allotment of 1,000 acre-feet annually of culinary water for the use of the inhabitants of the city, under which \\\"taxes shall be levied annually by the Board of Directors of the District upon the property within the city as provided by section 73-9-17, Utah Code Annotated, 1953, as amended by Chapter 132, Laws of Utah 1953, at a rate sufficient to produce the annual amount specified less any amount paid from water revenues, and from any other source.\\\" Thereunder the city will distribute the water and collect revenues for its use. It may out of such revenues and from other sources voluntarily pay all or part of the annual installments but it assumes no obligation and cannot be coerced into making any payment thereon. Under these circumstances does the total of these installments constitute a \\\"debt\\\" or \\\"indebtedness\\\" of the city ?\\nWe have decided' related problems but never directly decided this question. In Barnes v. Lehi City, we held with most jurisdictions that the terms \\\" 'debt' \\\" and \\\" 'indebtedness' \\\" as used in constitutional debt limitations of municipalities \\\" 'is given a meaning much less broad and comprehensive than it bears in general usage.' \\\" We further said:\\n\\\" It has now become a well-recognized principle of law that these constitutional provisions do not apply to a case where public property is purchased or constructed, and payment therefor is to be made, exclusively from the revenues derived from the property. The credit of the city is not extended, nor is any money which is derived from taxation or other existing sources of revenue expended, in the purchase price or maintenance cost of the plant. The city cannot be coerced into applying any part of its general revenue for the payment of the purchase price of the plant or for any part of the cost of maintenance thereof.\\\"\\nIn later cases we have limited this doctrine so as not \\\"to exclude an obligation, where the city cannot escape the obligation and may be compelled to make payment, even though payment be limited to a special fund, where the special fund is made up of revenues from property now owned by the city.\\\"\\nLater, in Conder v. University of Utah, we refused to apply the \\\"restricted special fund theory\\\" without which we said \\\" In the event of failure to pay the indebtedness the state would be under no obligation to appropriate money from general taxes to pay it. Such an obligation is not a debt in the contemplation of the constitutional limitations and further quoted with approval the following: \\\" If the validity of the special fund doctrine be assumed, the debt affected by constitutional limitations is an obligation for the payment of which the levy of taxes may be required. It is inconsistent with that assumption to treat as debt an obligation for the payment of which taxation cannot be required.' \\\"\\nThus it is clear that whether or not the city can be coerced into levying a tax to pay the obligation either directly or indirectly is held to be a strong factor in determining whether an obligation is a debt of the city. Here it is clear that the city cannot be coerced into levying a tax to meet this obligation although it may pay the whole or a part thereof from the water revenues or other sources. If the city fails to make any part of such payment the balance must be collected through a tax levied by the Board of Directors of the District upon the property within the city. The water was allotted to the city upon its petition, the city will distribute the water delivered under such allotment and collect the revenues for the use thereof. We hold that these facts do not make this a debt of the city.\\nThe levy is made only on property within the city because that area has been selected for a special benefit from the District of having culinary water made available from this project. The fact that the area covered by this special benefit is the same as that covered by the city does not make the tax levied by the District the obligation of the city, nor do the additional facts that the allotment was made on the petition of the City Council and that the water will be distributed by the city which will collect revenue for the use of such water. All of these rights and duties are conferred upon the city as a convenient instrumentality for accomplishing the purposes of the District. The city and the District are two separate and distinct entities organized generally for separate and distinct purposes but whose purposes converge and cover some of the same objectives. Sometimes the purposes of one dovetail and coordinate with those of the other. The city is a convenient instrumentality for doing these things which are necessary to be done in order to accomplish the objectives of the District and the area of the city is an appropriate part of the district to receive special benefits from the district which provides the special benefits and levies and collects the taxes to pay for such benefits. Thus it is an obligation of the district. The functions which the city performs and the rights which it acquires are merely incidental in assisting the district to accomplish its purposes. The city may collect all or a part of the required payments from the water revenues and other sources and pay them to the district, but it is not obligated and cannot be coreced into paying anything thereon. So we hold that' this is an obligation of the district and not a debt of the city.\\nThe legislature enacted the Water Conservancy Act under which the district was created for the purpose of conserving all the water resources of the state and putting them to a beneficial use. At this stage of the state's development, when all the water which can be diverted and used with little expense has long been appropriated, the expenditure of large sums will be required to accomplish such purposes. Although the new lands which will be brought under cultivation and irrigation eventually will be very valuable, they presently have little or no value. With this in mind the legislature in authorizing the creation of Water Conservancy Districts intended to make them free from debt limitations, and to require them to assume the debts which must be incurred in accomplishing their purposes. The legislature intentionally placed on the District the power and duty to levy taxes on the property of the district and different subdivisions thereof to pay the costs of the projects which it undertakes,, rather than to place such powers and duties on the various cities, towns and other govermental subdivisions which have debt limitations. Without this the districts would be greatly hampered and in many instances would be unable to accomplish their purposes. The conservation of the water resources of this state is of vital importance to the growth and development of the state and have the potentiality of increasing its wealth. Since there is no constitutional provision which prevents the legislature from creating this kind of a corporate entity and making the obligations incurred in accomplishing such purposes its debts this statute is not unconstitutional.\\nThe permanent writ is denied, the alternative writ recalled and the petition dismissed. Each party shall bear its own costs.\\nMcDonough and crockett, jj., and WM. STANLEY DUNFORD, District Judge, concur.\\n. See Utah Code Annotated 1953, Title 73, Chapter 9.\\n. See section 73-9-17, U.O.A.1953.\\n. Constitution of Utah, Article 6, section 31, provides : \\\"The Legislature shall not authorize the State, or any county, city, town, township, district or other political subdivision of the State to lend its credit or subscribe to stock or bonds in aid of any railroad, telegraph or other private individual or corporate enterprise or undertaking.\\\"\\n. Constitution of Utah, Article 14, section 3, provides: \\\"No debt in excess of the taxes for the current year shall be created by any county or subdivision thereof, or by any school district therein, or by any city, town or village, or any subdivision thereof in this State; unless the proposition to create such debt, shall have been submitted to a vote of such qualified electors as shall have paid a property tax therein, in the year preceding such election, and a majority of those voting thereon shall have voted in favor of incurring such debt.\\\"\\nConstitution of Utah, Article 14, section 4, provides: \\\"When authorized to create indebtedness as provided in section 3 of this Article, no county shall become indebted to an amount, including existing indebtedness exceeding two per centum. No city, town, school district or other municipal corporation, shall become indebted to an amount, including existing indebtedness, exceeding four per centum of the value of the taxable property therein, the value to be ascertained by the last assessment for State and County purposes, previous to the incurring of such indebtedness; except that in incorporated cities the assessment shall be taken from the last assessment for city purposes, provided, that no part of the indebtedness allowed in this section shall be incurred for other than strictly county, city, town or school district purposes; provided further, that any city of the first and second class when authorized as provided in Section three of this article, may be allowed to incur a larger indebtedness, not to exceed four per centum and any city of the third class, or town, not to exceed eight per centum additional, for supplying such city or town with water, artificial lights or sewers, when the works for supplying such water, light and sewers, shall be owned and controlled by the municipality.\\\"\\n. See section 10-7 \\u2014 4, U.C.A.1953.\\n. See section 10-8-18, U.C.A.1953.\\n.See section 10-8-14, U.C.A.1953.\\n. See note 4.\\n. 74 Utah 321, 279 P. 878. The first quotation is quoted with approval at pages 337-338 of 74 Utah, at page 884 of 279 P., from Swanson v. City of Ottumwa, 118 Iowa 161, 170, 91 N.W. 1048, 1051, 59 L.R.A. 620, the second quotation is taken from 74 Utah 340, 341, 279 P. 885.\\n. Fjeldsted v. Ogden City, 83 Utah 278, at page 297, 28 P.2d 144, at page 152, and see also Wadsworth v. Santaquin. City, 83 Utah 321, 28 P.2d 161.\\n. Utah, 257 P.2d 367, at pages 370 and 371.\\n. \\\"Municipal Improvements as Affected by Constitutional Debt Limitations\\\" 37 Columbia Law Review, pages 192 to 197.\\n. See note 1 and section 73-9-1, \\u00dc.C.A. 1953.\\n. See Lehi City v. Meiling, 87 Utah 237, 48 P.2d 530; Patterick v. Carbon Water Conservancy District, 106 Utah 55, 145 P.2d 503; Tygesen v. Magna Water Co., Utah, 226 P.2d 127.\"}"