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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.\"}"
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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.\"}"
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diff --git a/utah/10362390.json b/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.\"}"
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diff --git a/utah/10362560.json b/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.\"}"
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diff --git a/utah/10364207.json b/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).\"}"
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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).\"}"
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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.\"}"
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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).\"}"
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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).\"}"
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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.\"}"
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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.\\\").\"}"
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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).\"}"
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diff --git a/utah/10398937.json b/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.\"}"
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+"{\"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).\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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diff --git a/utah/10412837.json b/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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/utah/10423193.json b/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.\"}"
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diff --git a/utah/10428005.json b/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).\"}"
\ No newline at end of file
diff --git a/utah/10435672.json b/utah/10435672.json
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index 0000000000000000000000000000000000000000..351013cef2e835816aab4b11591873dcaf73a9c8
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+++ b/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.\"}"
\ No newline at end of file
diff --git a/utah/10436125.json b/utah/10436125.json
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index 0000000000000000000000000000000000000000..6b5b252c3fd20852e5ae1c5e60201dd985f19a1e
--- /dev/null
+++ b/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).\"}"
\ No newline at end of file
diff --git a/utah/10447587.json b/utah/10447587.json
new file mode 100644
index 0000000000000000000000000000000000000000..12cb82f86fbd66732e356a6e27d3c77c6b6be6af
--- /dev/null
+++ b/utah/10447587.json
@@ -0,0 +1 @@
+"{\"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).\"}"
\ No newline at end of file
diff --git a/utah/10448208.json b/utah/10448208.json
new file mode 100644
index 0000000000000000000000000000000000000000..dcf8db04fbc96dcdc1015b7d2e81a0dc341407f5
--- /dev/null
+++ b/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.\"}"
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+"{\"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).\"}"
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diff --git a/utah/10456363.json b/utah/10456363.json
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+"{\"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).\"}"
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diff --git a/utah/10457936.json b/utah/10457936.json
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--- /dev/null
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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).\"}"
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diff --git a/utah/10462910.json b/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).\"}"
\ No newline at end of file
diff --git a/utah/10464757.json b/utah/10464757.json
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index 0000000000000000000000000000000000000000..d64f651de7b520f24231d2c7aa0875ff05b3285d
--- /dev/null
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@@ -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.\"}"
\ No newline at end of file
diff --git a/utah/10468423.json b/utah/10468423.json
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+"{\"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).\"}"
\ No newline at end of file
diff --git a/utah/10472769.json b/utah/10472769.json
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/utah/10476297.json b/utah/10476297.json
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index 0000000000000000000000000000000000000000..34d7a9bd8ca30b08f532bc2222fa51fb32d6fe4d
--- /dev/null
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@@ -0,0 +1 @@
+"{\"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).\"}"
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diff --git a/utah/11303050.json b/utah/11303050.json
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index 0000000000000000000000000000000000000000..2224e81cd45f5e4463fc3a02701d4c8be714862f
--- /dev/null
+++ b/utah/11303050.json
@@ -0,0 +1 @@
+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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).\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"id\": \"6997299\", \"name\": \"STATE of Utah, Plaintiff and Appellee, v. Wolfgango RUIZ, Defendant and Appellant\", \"name_abbreviation\": \"State v. Ruiz\", \"decision_date\": \"2009-05-07\", \"docket_number\": \"No. 20071003-CA\", \"first_page\": \"955\", \"last_page\": \"962\", \"citations\": \"210 P.3d 955\", \"volume\": \"210\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:05:45.097320+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges GREENWOOD, THORNE, and ORME.\", \"parties\": \"STATE of Utah, Plaintiff and Appellee, v. Wolfgango RUIZ, Defendant and Appellant.\", \"head_matter\": \"2009 UT App 121\\nSTATE of Utah, Plaintiff and Appellee, v. Wolfgango RUIZ, Defendant and Appellant.\\nNo. 20071003-CA.\\nCourt of Appeals of Utah.\\nMay 7, 2009.\\nHakeem Ishola, West Valley City, for Appellant.\\nMark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.\\nBefore Judges GREENWOOD, THORNE, and ORME.\", \"word_count\": \"4064\", \"char_count\": \"24622\", \"text\": \"AMENDED OPINION\\nORME, Judge:\\n1 1 Wolfgango Ruiz timely sought to withdraw his guilty plea. His motion was granted. On reconsideration by a different judge, that disposition was rescinded and the motion was denied. We reverse that denial.\\nBACKGROUND\\nT2 Ruiz is an illegal alien. He was charged with sexual abuse of a child, a see-ond degree felony. Ruiz retained counsel to represent him, and he pled guilty to a reduced count of attempted sexual abuse of a child, a third degree felony. The written plea agreement executed by Ruiz indicated that the potential sentence was a term of zero-to-five years in prison.\\nT3 Two months after pleading guilty, Ruiz retained his current counsel. His new attorney filed a motion to withdraw Ruiz's guilty plea, alleging that former counsel's ineffectiveness rendered the plea involuntary. Ruiz alleged in an affidavit that his former counsel misled him into believing that the original second degree felony he was facing required a minimum mandatory sentence of five years and that he only entered a guilty plea to the third degree felony because his counsel told him he might get no jail time. Further, Ruiz alleged that his former counsel dissuaded him from seeking the advice of an immigration attorney before he pled guilty and told him that he would not be deported. The affidavit additionally claimed that upon later seeking the advice of an immigration attorney, that attorney told him he would most certainly be deported as a consequence of his plea. Ruiz asserts that had his former counsel correctly advised him of the immigration consequences of the guilty plea, he would not have pled guilty.\\nT4 Judge Fuchs ruled that Ruiz's former counsel misadvised him of the immigration consequences of his guilty plea and that this was a legitimate basis for withdrawing his guilty plea. At the hearing on the motion, the State requested additional time to present testimony from Ruiz's former counsel. Judge Fuchs denied this request, specifically stating that \\\"everybody's been given an opportunity to respond to this and we're stuck with the evidence as it exists and the affidavits or the memorandums as they exist.\\\"\\n5 Notwithstanding Judge Fuchs's ruling, the State filed a motion to reconsider in which it claimed that the prosecutor had spoken to Ruiz's former counsel, who denied misrepresenting the immigration consequences of the guilty plea and, predictably, denied being ineffective. The State argued that Ruiz had \\\"misrepresented the facts by failing to produce testimony from [former counsel] at the motion [to withdraw] hearing, even though [Ruiz] was aware that [former counsel] denied making the statements at issue.\\\" The State attached to its motion an affidavit from Ruiz's former counsel, as well as a letter that former counsel had sent to Ruiz's current counsel months earlier, which affidavit and letter generally denied any wrongdoing.\\nT6 Ruiz opposed the motion, arguing that the State had been given several opportunities to present evidence to counter Ruig's affidavit but failed to do so. Judge Fuchs set a hearing on the motion to reconsider but retired before the hearing was held. Judge Skanchy was then assigned to the case.\\nT7 Judge Skanchy heard the motion to reconsider over Ruiz's objection that the matter had already been litigated numerous times and decided by Judge Fuchs and that the State had had ample opportunity to present its evidence in a timely fashion but failed to do so. Judge Skanchy decided to hear Ruiz's former counsel's testimony.\\nT8 Judge Skanchy then heard Ruig's former counsel's testimony. Counsel claimed that he and Ruiz discussed the immigration consequences of the plea some thirty to fifty times, that they discussed \\\"immigration from day one,\\\" and that he consistently told Ruiz \\\"he would almost certainly be deported\\\" if he pled guilty. Based on this testimony, Judge Skanchy granted the motion to reconsider, rescinded Judge Fuchs's order granting the motion to withdraw the guilty plea, and denied Ruig's motion to withdraw his guilty plea.\\nT9 Ruiz thereafter filed a motion to arrest judgment on the basis that the prosecutor in this case had been arrested at the Salt Lake City Airport for possession of cocaine, asserting that the prosecutor's handling of the instant case was somehow linked to his cocaine use. Ruiz also claimed that, under the \\\"law of the case\\\" doctrine, Judge Skanchy lacked jurisdiction to overrule Judge Fuchs's decision allowing withdrawal of Ruiz's guilty plea. Judge Skanchy denied the motion to arrest judgment. Ruiz was then sentenced to a zero-to-five-year prison term, which was suspended in favor of 365 days in jail and thirty-six months of probation. He now appeals.\\nANALYSIS\\n110 We are not convinced that the law of the case doctrine precluded Judge Skanchy from overruling Judge Fuchs's decision. The law of the case doctrine is essentially a matter of judicial economy rather than jurisdiction. See Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 969 (Utah Ct.App.1989), cert. denied, 109 Utah Adv. Rep. 39 (1993). The rationale underlying the doe trine \\\"is that in the interest of economy of time and efficiency of procedure, it is desirable to avoid the delays and the difficulties involved in repetitious contentions and rulings upon the same proposition in the same case.\\\" Id. (citation and internal quotation marks omitted). Moreover, a judge can change his or her mind any time up until the entry of final judgment, which is true even if the judge has taken over the case from another judge, see Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310-11 (Utah Ct.App.1994), as \\\"a trial court is not inexorably bound by its own precedents.\\\" Salt Lake City Corp. v. James Constructors, Inc., 761 P.2d 42, 45 (Utah Ct.App.1988) (citation and internal quotation marks omitted). See Trembly, 884 P.2d at 1311. The doctrine \\\"does] not prevent a different judge from revisiting an interim order issued in a case by a prior judge,\\\" Interlake Distribs., Inc. v. Old Mill Towne, 954 P.2d 1295, 1299 (Utah Ct.App.1998), because, as correctly pointed out by the State, \\\"'the two judges, while different persons, constitute a single judicial office for law of the case purposes.\\\"\\\" Trembly, 884 P.2d at 1311 n. 4 (quoting Gillmor v. Wright, 850 P.2d 431, 439-40 (Utah 1993) (Orme, J., concurring). Thus, Judge Skanchy had the jurisdiction to entertain the State's motion to reconsider. Whether he ruled properly in granting it is another matter.\\n111 Because \\\"[the entry of a guilty plea involves the waiver of several important constitutional rights\\\" and \\\"because the prosecution will generally be unable to show that it will suffer any significant prejudice if the plea is withdrawn, a presentence motion to withdraw a guilty plea should, in general, be liberally granted.\\\" State v. Gallegos, 738 P.2d 1040, 1041-42 (Utah 1987). See Grimmett v. State, 2007 UT 11, \\u00b6 10, 152 P.3d 306. It is true that Ruiz had the burden to establish that there were grounds to withdraw his plea. See State v. Thurston, 781 P.2d 1296, 1301 (Utah Ct.App.1989) (stating that the party \\\"who would set a plea aside has the burden of proving that there is a legal ground for doing so\\\"). But that burden is relatively low in a presentence setting. Cf. Gallegos, 738 P.2d at 1042 (suggesting that the decision for granting leave to withdraw a plea should turn on whether there is \\\"a fair and just reason for granting leave to withdraw the plea\\\"). Ruiz met his burden by setting forth in his affidavit that he was not informed of the immigration consequences of his plea.\\n112 Therefore, the narrow question before us is whether Judge Skanchy erred in hearing the State's motion to reconsider and then allowing the State to put on new evidence after Judge Fuchs had already ruled that Ruiz could withdraw his plea and that no more evidence could be presented. A trial court's decision to address the merits of a motion to reconsider is reviewed for an abuse of discretion, see Tschaggeny v. Milbank Ins. Co., 2007 UT 37, \\u00b6 15-16, 163 P.3d 615, as is its decision to deny a motion to withdraw a guilty plea, see State v. Martinez, 2001 UT 12, \\u00b6 14, 26 P.3d 203.\\nT13 \\\"While trial judges generally are not required to give reasons for discretionary rulings, some explanation, however brief, greatly assists in appellate review, and may prevent unnecessary reversal where facts are close and support for a ruling is not patent from the record.\\\" City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073, 1079 n. 3 (1985). For instance, in cases involving attorney fees awards, \\\"Iwle have consistently encouraged trial courts to make findings to explain the factors which they considered relevant.\\\" Bell v. Bell, 810 P.2d 489, 494 (Utah Ct.App.1991) (citation and internal quotation marks omitted) (alteration in original). \\\"To permit meaningful [appellate] review of [a] trial court's discretionary ruling,\\\" id., a trial judge's explanation is helpful in evaluating whether discretion has been abused or soundly exercised because it is hard to tell just from an unexplained act whether a judge has acted arbitrarily or properly, see Geyler, 697 P.2d at 1079 n. 3.\\n{14 When a second judge announces a reversal of a prior judge's order, it is doubly important for the second judge to articulate a reason for the change. This is all the more true in the instant context, given the many directives that presentence motions to withdraw guilty pleas should be liberally granted. In this case, Judge Skanchy did not articulate why he was allowing the State to present new evidence, after the State had been given multiple opportunities to present such evidence and after Judge Fuchs had rebuffed the State's request for yet a further opportunity to do so. When Judge Fuchs had specifically ruled that \\\"everybody's been given an opportunity to respond to this and we're stuck with the evidence as it exists and the affidavits or the memorandums as they exist,\\\" it was especially incumbent on Judge Skanchy to explain why a change was in order and why new evidence could be belatedly put on by the State. Absent such explanation on the record, we have no assurance that the change was not merely a function of personal preference on Judge Skanchy's part.\\nCONCLUSION\\n\\u20ac15 The order denying Ruiz's motion to withdraw his guilty plea is vacated, and the prior order granting leave to withdraw the guilty plea stands. The case is remanded to the district court for trial or such other proceedings as may now be in order.\\n. This Amended Opinion replaces our Opinion issued on December 26, 2008, see State v. Ruiz, 2008 UT App 470, 620 Utah Adv. Rep. 41. We address the State's arguments raised in its petition for rehearing, see infra 1M 16-23, and decline to delete the language to which the State takes exception for the reasons outlined in the final section of this opinion. See Utah R.App. P. 35(c) (\\\"If a petition for rehearing is granted, the court may make a final disposition of the cause without reargument, or may restore it to the calendar for reargument or resubmission, or may make such other orders as are deemed appropriate under the circumstances of the particular case.\\\"). Aside from this explanatory footnote, our opinion resolving this appeal remains exactly the same except for the addition of the section entitled \\\"On Petition for Rehearing.\\\"\\n. We note that on the date the hearing was first scheduled, the hearing was continued because the State was not ready to proceed.\\n. The State's argument that Ruiz was obligated to put on evidence supporting the State's position as well as evidence supporting his position was not supported with citation to any authority.\\n. The anomalous nature of a lawyer telling a client the same thing as many as fifty times, in a span of five months or so, was noted at oral argument before this court.\\n. Given our disposition, we need not consider the other issues raised by Ruiz.\"}"
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+"{\"id\": \"8185380\", \"name\": \"STATE of Utah, Plaintiff and Appellee, v. Susan TRIPP, Defendant and Appellant\", \"name_abbreviation\": \"State v. Tripp\", \"decision_date\": \"2008-10-30\", \"docket_number\": \"No. 20060972-CA\", \"first_page\": \"99\", \"last_page\": \"107\", \"citations\": \"197 P.3d 99\", \"volume\": \"197\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:20:33.118483+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges GREENWOOD, BILLINGS, and ORME.\", \"parties\": \"STATE of Utah, Plaintiff and Appellee, v. Susan TRIPP, Defendant and Appellant.\", \"head_matter\": \"2008 UT App 388\\nSTATE of Utah, Plaintiff and Appellee, v. Susan TRIPP, Defendant and Appellant.\\nNo. 20060972-CA.\\nCourt of Appeals of Utah.\\nOct. 30, 2008.\\nRonald J. Y\\u00a5engich, Salt Lake City, for Appellant.\\nMark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.\\nBefore Judges GREENWOOD, BILLINGS, and ORME.\", \"word_count\": \"4221\", \"char_count\": \"25167\", \"text\": \"OPINION\\nORME, Judge:\\nT1 Alleging error in the denial of her pretrial motion to suppress evidence, Susan Tripp appeals from her jury conviction of automobile homicide. We conclude that the appeal is well-taken, reverse the trial court's denial of the motion to suppress evidence, and remand for a new trial.\\nBACKGROUND\\nT2 \\\"The legal analysis of search and seizure cases is highly fact dependent.\\\" State v. Brake, 2004 UT 95, \\u00b6 2, 103 P.3d 699. We therefore recite the facts in some detail.\\nT3 On April 23, 2004, Tripp was driving eastbound on the Old Bingham Highway in Salt Lake County, Utah. She stopped at the stop sign at the U-111 intersection and, after stopping, pulled out and collided with a mo-toreyclist traveling southbound on U-111. The motorcyclist died soon after from injuries sustained in the crash.\\n4 4 Police and emergency personnel immediately arrived on the scene, including West Jordan Police Officer Saunders, who asked Tripp if he could obtain a blood sample from her. Although Officer Saunders testified at trial that he did not observe any signs indicating that Tripp was impaired and that he did not have any reasonable suspicion that she was under the influence of any substance, he testified that he seeks blood draws in serious accidents as a matter of course. And the trial court, in its findings, indicated that \\\"[nlo officer detected the odor of aleohol on the defendant, nor did they observe any obvious signs of impairment, such as poor balance or slurred speech.\\\" Tripp denied consuming alcohol or prescription drugs when asked by Officer Saunders.\\n15 Tripp told Officer Saunders that she did not want to submit to a blood test because she did not like needles but that she was willing to consent to a urinalysis. Officer Saunders then conferred with an automobile homicide investigator, Detective Roberts, informing him that Tripp was unwilling to submit to a blood draw because she was seared of needles. After some discussion, the two officers determined that a blood sample was necessary and decided to renew the effort to obtain Tripp's consent for a blood draw.\\nT6 Detective Roberts then approached Tripp and again asked for her consent to a blood draw, which she refused to provide-again citing her fear of needles. She renewed the offer to furnish a urine sample and, indeed, a blood sample-provided a needle was not used to obtain it. Detective Roberts told Tripp that he did not know of any other way to obtain blood and suggested that her fear of needles was something that could be worked around. Detective Roberts explained that the department's blood technician was highly skilled and would be able to do the draw quickly and relatively painlessly. During this exchange, Detective Roberts observed that Tripp appeared nervous, was shaking, and had red eyes without any tears. Detective Roberts testified that he began to believe that Tripp was impaired, based on her apparent lack of concern for the victim, her continual smoking, and the fact that the redness in her eyes was not dissipating. He also acknowledged that it was normal for an individual involved in a serious accident to be shaky and nervous.\\nT7 Because Detective Roberts's further attempts to obtain Tripp's consent were unsuccessful, he approached the department's victims' rights advocates, whose presence is often requested at the scene of serious accidents, for assistance, to see \\\"if they could calm [Tripp] down and . have her become more relaxed to the idea of having a blood draw.\\\" In the presence of Tripp's family-who had arrived at the scene a few minutes after the accident-and the advocates, Detective Roberts again asked Tripp to submit to a blood draw, and Tripp \\\"adamantly refused to submit.\\\" Based on this refusal and protestations from Tripp's family at his repeated requests for a blood draw, Detective Roberts took Tripp into custody, removing her from her vehicle and placing her in the back of a police vehicle. Detective Roberts told Tripp that she was now in custody and that he was going to obtain a warrant and foree the blood draw. Detective Roberts, however, never tried to secure the warrant because the blood technician, Brian Davis, arrived on the scene immediately after this exchange.\\n18 Detective Roberts explained the situation to Davis-that Tripp would not consent, that it was going to take several hours to obtain a warrant, and that he would call Davis back onee the warrant had been obtained. Upon learning that Tripp refused consent only because of her fear of needles, Davis replied, \\\"[WJell, if that's all it is, let me talk to her. I'm usually pretty good at getting them to work around their fear of needles.\\\" Davis then went to talk with Tripp in the back of Officer Monson's patrol car.\\n19 Davis tried to reassure Tripp of the relative ease and painlessness of the blood draw procedure. Tripp insisted that she was afraid and that even her own doctor would not draw her blood because of her fear. Davis testified that he thought he would be able to obtain her consent based on his reassurances, told this to Detective Roberts, and said, \\\"I really think we can probably go ahead and do this. We've got her reassured and talked into this[.]\\\" Davis then put a tourniquet on Tripp's arm to see \\\"if we can find a spot that would be easy to do this,\\\" to which Tripp responded, \\\"Okay, we'll go ahead and do that.\\\" Tripp stuck her arm out for Davis to apply the tourniquet. Davis told her that he found an easy site and that \\\"we can go ahead and [take] care of this.\\\" Davis testified that Tripp probably did not know that he had his equipment ready and that he was prepared to draw her blood and that he \\\"just kind of stuck her with the needle as quick as [he] could and got the blood done.\\\" During the draw, Tripp was in a police car with an officer outside the door covering her eyes, a victims' rights advocate kneeling in front of her holding one of her hands, and Davis outside the car door holding her arm in such a way that she could not see it. Cecilia Budd, the victims' rights advocate who was with her, consistently reassured Tripp and told her that she had seen Davis draw blood before and that he was very good. After the draw, Tripp became calm and was surprised that the blood draw was done.\\nOfficer Monson, who witnessed the blood draw, testified that \\\"[Tripp] looked terrified. She had talked to us about her fear of needles and she looked terrified.\\\" He also testified that she was \\\"pulling away. She was crying,\\\" but that she had \\\"offered her arm.\\\" Budd testified that, at times, Tripp was uncontrollably crying. The blood draw showed a metabolite of cocaine and a blood aleohol level just above the legal limit.\\nT 11 The State charged Tripp with automobile homicide, a third degree felony, in violation of Utah Code section 76-5-207(2), see Utah Code Ann. \\u00a7 76-5-207(2) (Supp.2007), and with failure to yield the right of way, a class C misdemeanor, in violation of Utah Code section 41-6-72.10(8), see Utah Code Ann. \\u00a7 41-6-72.10(8) (1998) (current version at Utah Code Ann. \\u00a7 41-62a-902 (2005)). Tripp moved to suppress the blood test results. After an evidentiary hearing, the motion to suppress was denied. The trial court found that Tripp voluntarily consented to the blood draw, that her initial refusal was based \\\"solely on her fear of needles, and [that] the evidence demonstrates that at the time of the blood draw the defendant's fear was resolved.\\\" Having been convicted following a jury trial, Tripp now appeals.\\nISSUE AND STANDARDS OF REVIEW\\n1 12 Tripp argues that the trial court erred in denying her motion to suppress. Specifically, Tripp challenges the trial court's finding that she consented to the blood draw. \\\"We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard. However, we review the trial court's conclusions of law based on these findings for correctness[.]\\\" State v. Veteto, 2000 UT 62, \\u00b6 8, 6 P.3d 1133 (citation and internal quotation marks omitted). Further, we grant no deference to the trial court in its application of the law to its factual findings. See State v. Brake, 2004 UT 95, \\u00b6 15, 103 P.3d 699.\\nANALYSIS\\n113 The Fourth Amendment prohibits unreasonable searches and seizures, including in situations where blood is drawn from a suspect and then analyzed. See State v. Bredehoft, 966 P.2d 285, 292 (Utah Ct.App.1998) (citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)), cert. denied, 982 P.2d 88 (Utah 1999). \\\"[Slearches conducted . without [warrants] . are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.\\\" Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted). Such exceptions include searches based on valid consent, see State v. Arroyo, 796 P.2d 684, 687 (Utah 1990), and searches based on probable cause where exigent circumstances obviate the need for a warrant, see State v. Rodriguez, 2007 UT 15, \\u00b6 16, 156 P.3d 771.\\nI. Consent\\n114 We start with consideration of whether Tripp consented voluntarily to the blood draw. \\\"[Clonsent which is not voluntarily given is invalid.\\\" Arroyo, 796 P.2d at 688. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bredehoft, 966 P.2d at 292-98. The appropriate standard to determine whether consent is voluntary \\\"is the totality of the circumstances test.\\\" State v. Hansen, 2002 UT 125, \\u00b6 56, 63 P.3d 650. \\\"Under the totality of the cireumstances test, a court should carefully serutinize both the details of the detention, and the characteristics of the defendant.\\\" Id. (citing Schneckloth, 412 U.S. at 248, 93 S.Ct. 2041). \\\"Consent is not voluntary if it is obtained as 'the product of duress or coercion, express or implied.\\\" State v. Bisner, 2001 UT 99, \\u00b6 47, 37 P.3d 1073 (citation omitted). \\\"'[Wle further look to see if there is clear and positive testimony that the consent was unequivocal and freely given.\\\" Bredehoft, 966 P.2d at 298 (citation omitted). \\\"In other words, a person's will cannot be overborne, nor may his 'capacity for self-determination [be] critically impaired.\\\" Hansen, 2002 UT 125, \\u00b6 57, 63 P.3d 650 (alteration in original) (citation omitted). The State, of course, has the burden of establishing that consent was validly given. See Arroyo, 796 P.2d at 687.\\n$15 \\\"Voluntariness is primarily a factual question, and the analysis used to determine voluntariness is the same without regard to whether the consent was obtained after illegal police conduct.\\\" State v. Thurman, 846 P.2d 1256, 1262 (Utah 1998) (citation omitted). Thus, if we determine that Tripp did not voluntarily consent to having her blood drawn, we need not reach the issue of \\\"whether the consent was obtained by police exploitation of [a] prior illegality.\\\" Arroyo, 796 P.2d at 688. See also Thurman, 846 P.2d at 1262. The State argues that Tripp voluntarily consented to a warrantless blood draw in light of the totality of the circumstances. We disagree.\\n(16 Given the totality of the cireum-stances, we cannot say that there is \\\"clear and positive testimony\\\" that Tripp \\\"unequivocal[ly] and freely\\\" consented to having her blood drawn. See Bredehoft, 966 P.2d at 293 (citation omitted). After refusing to submit to a blood draw several times-to Officer Saunders, to Detective Roberts, and to Brian Davis-Tripp was informed that she was in custody, removed from the presence of her family, and placed in a police car. Detective Roberts testified that she was arrested because \\\"the more [the officers] tried to convince her, the more defiant she became . and we were losing control of the situation.\\\" She was told that if she did not submit, a warrant would be obtained and she would be forced to give a blood sample. A warrant was never sought, however, because the blood technician, Brian Davis, told Detective Roberts, \\\"I really think we can probably go ahead and do this.\\\" When Tripp extended her arm prior to the blood test, to the extent the gesture was voluntary at all under the cireumstances, it was in response to Davis's telling her that he was going to apply the tourniquet and see if he could find an easy spot to draw blood. Davis even testified that he was not sure that Tripp knew that he had his blood drawing equipment ready and was prepared to draw her blood when she extended her arm. Once he found an easy site to draw from, he told her \\\"we can go ahead and [take] care of this,\\\" and he proceeded to immediately draw her blood without an express indication of her consent and without first allowing her to reaffirm, yet again, her refusal to consent.\\n117 The State contends that Tripp's failure to immediately withdraw her arm must be taken as a clear indication of her consent. We cannot agree. During the blood draw, Tripp was surrounded by people working for the State-she was in a police car with an officer outside the door covering her eyes, a victims' advocate kneeling in front of her holding one of her hands, and the blood technician outside the car holding her arm where she could not see it. All the while Tripp was, according to the witnesses, terrified, erying, and panicked. Given the context of the threat of a forced blood draw, her arrest by the police, and the presence and participation of the State's many actors during the blood draw, we cannot say that Tripp voluntarily consented to have her blood drawn simply because she failed to retract her arm in the instant between when Davis said \\\"we can go ahead and [take] care of this\\\"-an ambiguous comment as concerns the timing of the intended blood draw in any event-and when he inserted the needle. Indeed, Officer Monson, the officer who witnessed the draw, testified that although Tripp initially offered her arm to Davis, \\\"Islhe was pulling away,\\\" and \\\"[she was crying. I tried to shield her eyes so [shel wouldn't look at the needle.\\\" The State argues that this is a natural response from someone who fears needles. We think, however, that given the context of her continuous refusals to submit to a blood draw, her expressed fear of needles, her arrest, the threat that she would be forced to provide the blood as soon as a warrant was obtained, and her erying and pulling away during the blood draw, the State has failed to meet its burden and to demonstrate that Tripp voluntarily gave consent under the totality of the cireumstances. See generally Arroyo, 796 P.2d at 687.\\nII. Exigent Cireumstances\\n118 The State next asks us to affirm Tripp's conviction because Detective Roberts was justified in \\\"foreing a blood draw under the exigent cireumstances exception to the warrant requirement.\\\" While this court \\\"may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record,\\\" State v. Despain, 2007 UT App 367, \\u00b6 11, 173 P.3d 213 (citation and internal quotation marks omitted), we do not agree that the exigent cireumstances exception to the warrant requirement justified the warrantless blood draw in this case.\\n119 A generally recognized exception to the warrant requirement is the one referred to as \\\"exigent circumstances.\\\" See State v. Rodrigues, 2007 UT 15, \\u00b6 16, 156 P.3d 771. But to justify a warrantless search based on exigent cireumstances, there must still be probable cause. See State v. Vallasenor-Meza, 2005 UT App 65, \\u00b6 9, 108 P.3d 123 (\\\"[A] warrantless search . is constitutionally permissible where probable cause and exigent cireumstances are proven.\\\") (first alteration in original) (citation and internal quotation marks omitted); State v. Comer, 2002 UT App 219, \\u00b6 21, 24, 51 P.3d 55 (same), cert. denied, 59 P.3d 608 (Utah 2002). In other words, the exigencies of a situation may excuse the Fourth Amendment's requirement that a warrant be obtained, but not the requirement that a search be premised on probable cause.\\n%20 Probable cause exists when \\\"an officer . believe[s] that the suspect has committed or is committing an offense.\\\" Despain, 2007 UT App 367, \\u00b6 9, 173 P.3d 213 (citation and internal quotation marks omitted). The facts surrounding a probable cause determination are examined in light of the totality of the cireumstances. See id.\\n121 Exigent circumstances may exist when there is \\\"an urgency to acquire evidence that falls outside the ordinary course of law enforcement,\\\" Rodriguez, 2007 UT 15, \\u00b6 16, 156 P.3d 771, such as situations where obtaining a warrant would place officers or the public at an unacceptable risk or where the destruction of essential evidence is imminent, see id. And where what is sought to be searched is a person's body, \\\"sufficient probable cause exists only [when there is] 'a clear indication that evidence will be found as H a result of the search. State v. Alverez, 2006 UT 61, \\u00b6 22, 147 P.3d 425 (quoting Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).\\nT22 On the record before us, we cannot say that the totality of the cireumstances established probable cause to search Tripp's body for incriminating evidence, ie., to effect the blood draw. Officer Saunders testified that he did not have a reasonable suspicion or belief that Tripp was intoxicated or under the influence of drugs or alcohol. Detective Roberts testified that he was only asked by Officer Saunders to help obtain consent and that he was not given any information that rose to the level of probable cause. Detective Roberts further testified that while he observed that Tripp had red eyes, possibly from erying, and that she was nervous and shaking, he did not observe slurred speech, smell the odor of alcohol, or conduct any field sobriety tests. Officer Monson testified that he did not smell alcohol or observe any signs of impairment. Significantly, in its findings of fact, the trial court found that \\\"Injo officer detected the odor of alcohol on the defendant, nor did they observe any obvious signs of impairment, such as poor balance or slurred speech.\\\" Thus, the State has not met its burden of demonstrating that there was probable cause to believe that Tripp had committed an alcohol-related offense at the time her blood was drawn without her consent, and we thus have no occasion to determine whether sufficient exigent cireumstances existed to excuse obtaining a warrant. See Alverez, 2006 UT 61, \\u00b6 21, 147 P.3d 425.\\nIII. Inevitable Discovery\\nAdditionally, the State contends that Tripp's blood alcohol content would inevitably have been discovered and that we should therefore affirm the denial of the motion to suppress. The crux of the inevitable discovery doctrine is that since \\\" 'tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.'\\\" State v. Topanotes, 2008 UT 30, \\u00b6 14, 76 P.3d 1159 (citation omitted). However, \\\"there must be some 'independent basis for discovery, and 'the investigation that inevitably would have led to the evidence [must] be independent of the constitutional violation.'\\\" Id. \\u00b6 16 (alteration in original) (citations omitted).\\n124 The State's argument that it would inevitably have discovered the blood alcohol evidence is conjectural at best. The record does not indicate that a warrant would actually have been issued in this case or that the desired blood test results would actually have been obtained thereby. \\\"For courts confidently to predict what would have occurred, . there must be persuasive evidence of events or cireumstances apart from those resulting in illegal police activity that would have inevitably led to discovery.\\\" Id.\\n1 25 There is no such persuasive evidence here. Indeed, the only evidence relevant to securing a warrant was that Officer Saunders did not believe a warrant was required in serious accidents, that Detective Roberts threatened to obtain a warrant and force a blood draw, and that Detective Roberts thought obtaining a warrant would take a few hours. In any event, we have already held that the record before us does not establish a basis for concluding that there was probable cause to justify a forcible blood draw. We therefore cannot say that Detective Roberts would have necessarily been able to obtain a warrant based on the available evidence, and thus we decline to affirm on the basis of the inevitable discovery doe-trine.\\nCONCLUSION\\n{26 We reverse the trial court's denial of Tripp's motion to suppress the blood test results because the State did not meet its burden of proving that her consent was voluntary. We also decline to affirm on the exigent cireumstances rationale offered by the State because the State did not demonstrate that there was probable cause for a forcible blood draw. Nor does the inevitable discovery doctrine provide a proper basis on which to affirm. Accordingly, we reverse the denial of the motion to suppress and remand for a new trial or such other proceedings as may now be appropriate.\\n127 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and JUDITH M. BILLINGS, Judge.\\n. Trial testimony by experts put the motorcyclist's speed just prior to impact at about sixty miles per hour, the posted speed limit.\\n. The record is devoid of any indication that a Breathalyzer or Intoxilyzer test was considered a rather curious fact given that Tripp was not generally uncooperative and stood ready to provide a urine sample or even a blood sample, provided a needle was not used. One might surmise that a suspect ready to provide a roadside urine sample would readily provide a breath sample instead, if given that choice. Nor did Officer Saunders or Detective Roberts at any time request that Tripp undergo any alternative tests, such as field sobriety tests.\\n. Throughout the briefs, both parties seem to use the concepts of \\\"arrest\\\" and \\\"custody\\\" interchangeably. Indeed, at the suppression hearing, Detective Roberts testified both that he took Tripp into \\\"custody\\\" and that he put her under arrest. Because the parties consistently characterize Tripp's custody as amounting to an arrest, we have no occasion to consider whether her detention was only a \\\"level two\\\" investigative detention. See generally State v. Worwood, 2007 UT 47, \\u00b6 21, 164 P.3d 397.\\n. It was suggested from the bench during oral argument before this court that perhaps Tripp had consented to providing a blood sample, just not to the method employed in extracting it, and that given that her articulated concern was on that basis rather than protections enshrined in the Fourth or Fifth Amendments, the blood draw might constitute a battery but should not trigger evidentiary suppression. That angle was not pursued by the State, perhaps because of the reality that blood can only be extracted by means of a needle, and we are aware of no authority supporting the notion that it is conceptually possible to consent to a blood draw while withholding consent to being pricked with a needle.\\n. Tripp also argues that the trial court erred in not allowing the jurors to consider whether the motorcyclist's conduct was a superseding cause of the accident. Given our disposition, we need not address this issue.\\n. Although in many cases such a \\\"threat\\\" would be neither inaccurate nor coercive, see, e.g., State v. Harmon, 910 P.2d 1196, 1207 (Utah 1995); State v. Bobo, 803 P.2d 1268, 1273-74 (Utah Ct.App.1990), this is not such a case. Here, as discussed in Part II, there was no demonstrated probable cause to justify an involuntary blood draw.\\n. This case stands in stark contrast to State v. Bredehoft, 966 P.2d 285 (Utah Ct.App.1998), cert. denied, 982 P.2d 88 (Utah 1999), where we readily agreed with the State that a defendant who offered his arm to a blood technician had consented to the blood draw. See id. at 293. In that case, the defendant offered no resistance, the defendant did not say \\\"no\\\" or object in any way, and the defendant's blood was taken in a much less coercive environment, ie., the defendant was in the back of an ambulance with only one officer present.\\n. Neither, apparently, did the trial court, which premised its decision entirely on consent.\\n. Whether or not sufficient evidence to establish probable cause for a blood draw could have been garnered is an entirely different matter. Given the investigating officers' single-minded focus on getting Tripp to consent to have her blood drawn, amassing facts to establish probable cause was simply not their objective. Had it been, they could have employed field sobriety tests and perhaps a Breathalyzer or Intoxilyzer test to develop probable cause for taking a sample of Tripp's blood.\\n. Detective Roberts told Brian Davis it would be several hours before a warrant could be obtained, during which time the alcohol in Tripp's system would be dissipating.\"}"
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+"{\"id\": \"8210812\", \"name\": \"STATE of Utah, Plaintiff and Appellee, v. Ozwald BALFOUR, Defendant and Appellant\", \"name_abbreviation\": \"State v. Balfour\", \"decision_date\": \"2008-11-14\", \"docket_number\": \"No. 20070902-CA\", \"first_page\": \"471\", \"last_page\": \"482\", \"citations\": \"198 P.3d 471\", \"volume\": \"198\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:40:58.098468+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges GREENWOOD, DAVIS, and MeHUGH.\", \"parties\": \"STATE of Utah, Plaintiff and Appellee, v. Ozwald BALFOUR, Defendant and Appellant.\", \"head_matter\": \"2008 UT App 410\\nSTATE of Utah, Plaintiff and Appellee, v. Ozwald BALFOUR, Defendant and Appellant.\\nNo. 20070902-CA.\\nCourt of Appeals of Utah.\\nNov. 14, 2008.\\nRehearing Denied Dec. 5, 2008.\\nBenjamin A. Hamilton, Salt Lake City, for Appellant.\\nMark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.\\nBefore Judges GREENWOOD, DAVIS, and MeHUGH.\", \"word_count\": \"6408\", \"char_count\": \"38849\", \"text\": \"OPINION\\nMcHUGH, Judge:\\n1 Defendant Ozwald Balfour seeks interlocutory review of the trial court's denial of his three motions: (1) Motion to Quash Bind-over; (2) Motion to Sever Counts; and (8) Motion to Disqualify District Attorney's Office. We affirm the trial court's rulings on the first and third motions, and we affirm in part and reverse in part its ruling on the second motion.\\nBACKGROUND\\n1 2 On February 8, 2005, the State charged Balfour by information with two counts of forcible sexual abuse, a second degree felony, see Utah Code Ann. \\u00a7 76-5-404 (2008) (current version as amended at Utah Code Ann. \\u00a7 76-5-404 (Supp.2008)), and one count of attempted forcible sexual abuse, a third degree felony, see id. The State amended the information on April 21, 2005, to add an additional count of forcible sexual abuse. At the preliminary hearing, held on March 7, 2006, Balfour was bound over for trial on all four counts, which arise from the following allegations.\\nI. Count I\\n\\u00b6 8 On January 21, 2005, M.L. went to the vocational school operated by Balfour to register for classes. Balfour invited M.L. to his office but instead led her into an adjacent room and locked the door. When ML. asked Balfour why he locked the door, Balfour grabbed M.L.'s shirt and said, \\\"You have two minutes or two seconds to take me or prove to me....\\\" ML. pushed his hands away and indicated that his advances were unwelcome. Balfour tried to lift M.L.'s shirt while ML. repeatedly \\\"push[ed] his hands awayl,] telling him this wasn't the kind of schooling my father was going to finance.\\\" The encounter lasted approximately five minutes, during which time Balfour managed to lift ML 's shirt \\\"[elnough to show [her] flesh\\\" and put his \\\"hand . across [her] breast.\\\" Onee M.L. broke free, she pounded on the door and yelled, \\\"Let me out of here\\\" or \\\"Can anybody hear me?\\\" Balfour then unlocked the door, and M.L . left.\\nIL Count II\\nT4 R.O. accompanied ML. to Balfour's office on January 21, 2005, for what R.O. believed to be an acting job interview. Balfour took R.O. back to his office where they talked about acting and her family for a few minutes. Balfour then took R.O. to an unlit room and shut the door. Balfour said, \\\"You have so many minutes\\\" to \\\"show me how a love seene goes.\\\" R.O. refused, stating she was \\\"happily married\\\" and she was \\\"not going to sleep [her] way to the top or to get a job.\\\" Balfour then grabbed R.O.'s arm above the elbow with one hand and squeezed her breast over her shirt with the other. R.O. pushed him away and walked out the door.\\nIII. Count IH\\nT5 In August or September 2008, D.J. applied for a web design class at Balfour's media production school. During the application process, Balfour asked D.J. to stand up and turn around so he could look at her. When D.J. questioned Balfour's intentions, he asked D.J. if she was interested in film. D.J. said no and left. Approximately one week later, D.J. began attending classes. When D .J. had difficulty obtaining financial aid, Balfour suggested she earn money by \\\"beling] in lingerie and on film\\\" and \\\"doing} sexual things.\\\" D.J. was uncomfortable with these comments and left the school.\\nT6 On September 15, 2008, Balfour called D.J. to inquire whether he could bring her some financial aid paperwork that needed to be completed by the next morning. Balfour arrived at D.J.'s home around 8:00 or 9:00 pm., she invited him in, and they sat on separate couches. After greeting D.J. and placing the paperwork on the coffee table, Balfour walked over to D.J., pinned her shoulders against the couch, and pressed his inner thighs against her outer thighs. Balfour asked if D.J. \\\"was interested in doing anything for the money for the school.\\\" D.J. said no and asked Balfour to leave. Instead of leaving, Balfour \\\"dropped his pants,\\\" moved his legs between hers, and said, \\\"Come on, come on.... Let me, let me.\\\" Again D.J. resisted and asked Balfour to leave. Balfour began rubbing his penis against D.J.'s vagina over her spandex shorts, simulating intercourse. Balfour attempted to remove D.J.'s shorts and shirt, but D.J. held on to her clothing. Balfour finally retreated when D.J.'s screams awakened her fourteen-month-old daughter who was asleep in the same room.\\nIV. Count IV\\nT7 On January 21, 2005, R.G. met Balfour while she was shopping at a Wal-Mart near Balfour's office. Learning that R.G. had quit her job, Balfour invited her to his office for employment information. R.G. stopped by Balfour's office that afternoon and completed an application. Balfour then took R.G. to his office, shut the door, and asked if she wanted to take off her jacket. R.G. refused. Balfour asked R.G. to turn around and made comments such as \\\"[nlice package\\\" and \\\"[ylou're pretty\\\" while she did so. He then repeated his invitation for her to take off her jacket. When R .G. again declined, Balfour unzipped her jacket, pushed it off her shoulders, pulled her towards him, and tried to lift the tank top she was wearing underneath the jacket. Balfour managed to pull the shirt high enough to expose R.(G.'s bra before R.G. was able to push it back down and zip her jacket. R.G. backed away. Following the incident, R.G. chatted briefly with Balfour and had some photographs taken. R.G. then left the facility.\\nV. Balfour's Prior Relationship with the District Attorney\\n8 During the course of plea negotiations, Balfour requested a meeting between his counsel, District Attorney Lohra Miller (the District Attorney), and the assigned state prosecutor. During this meeting, the District Attorney recognized Balfour's name and realized his business was the media company she used, free of charge, during her election campaign. She also realized Balfour was an active member of the Salt Lake County Republican Party, which had campaigned for her election. In response, the District Attorney immediately removed herself from further discussion of the charges. Balfour and his counsel later requested that the entire office be disqualified from prosecuting the case. The District Attorney declined, instead assigning supervisory authority over the prosecution to an assistant district attorney. Balfour's counsel suggested that the issue of whether the entire office should be disqualified be submitted to the Utah State Bar's Ethics Advisory Committee. The assigned assistant district attorney indicated that he would need the District Attorney's approval to bind his office to the committee's decision.\\nISSUES AND STANDARDS OF REVIEW\\nT9 Balfour relies on this court's interpretation of the forcible sexual abuse statute in State v. Jacobs, 2006 UT App 356, 144 P.3d 226, to argue that the district court erred in denying his motion to quash the bindover. To bind over a defendant for trial, the magistrate need only find probable cause for each element of the charge. See State v. Clark, 2001 UT 9, \\u00b6 10, 15, 20 P.3d 300. The bindover standard is intentionally low so that the credibility of witnesses and the truthfulness of the facts are left to the fact-finder. See State v. Virgin, 2006 UT 29, \\u00b6 21, 137 P.3d 787 (citing State v. Talbot, 972 P.2d 435, 438 (Utah 1998)). \\\"[In reviewing a magistrate's bindover decision, an appellate court should afford the decision limited deference.\\\" Id. 126.\\nT10 Next, Balfour argues that the district court erred in denying his motion to sever the four counts of the amended information. \\\"[TJhe grant or denial of severance is a matter within the discretion of the trial judge, so we reverse [a denial] only if the trial judge's refusal to sever charges \\\"is a clear abuse of discretion in that it sacrifices the defendant's right to a fundamentally fair trial.\\\"\\\" State v. Lopez, 789 P.2d 39, 42 (Utah Ct.App.1990) (quoting State v. Pierre, 572 P.2d 1338, 1350 (Utah 1977)). \\\"Under [the abuse of discretion] standard, we will not reverse . unless the decision exceeds the limits of reasonability.\\\" State v. Clopten, 2008 UT App 205, \\u00b6 12, 186 P.3d 1004 (internal quotation marks omitted).\\n111 Finally, Balfour challenges the trial court's decision to deny his motion to disqualify the entire Salt Lake County District Attorney's Office. Trial courts are generally allowed considerable discretion in granting or denying motions to disqualify counsel, and such decisions will only be overturned when that discretion is exceeded. See State v. Wareham, 2006 UT App 327, \\u00b6 10, 143 P.3d 302. \\\"However, due to the 'special interest in administering the law governing attorney ethical rules, a trial court's discretion in situations implicating those rules is limited\\\"\\\" Id. (quoting Houghton v. Utah Dep't of Health, 962 P.2d 58, 61 (Utah 1998)). Thus, attorney disqualifications are reviewed as mixed questions of law and fact. See United States v. Bolden, 353 F.3d 870, 878 (10th Cir.2003). \\\"First, we review the district court's factual conclusions under a clear error standard. Second, we review the district court's legal interpretation of particular ethical norms under a de novo standard when that interpretation implicates important constitutional rights.\\\" Id. (citation omitted).\\nANALYSIS\\nI. Motion to Quash Bindover\\n$12 To issue a bindover, the magistrate must find \\\"probable cause to believe that the crime charged has been committed and that the defendant has committed it.\\\" Utah R.Crim. P. 70)(2). The bindover standard, however, \\\"'is not that of a rubber stamp for the prosecution.\\\" \\\" Clark, 2001 UT 9, \\u00b6 10, 20 P.3d 300 (quoting State v. Hester, 2000 UT App 159, \\u00b6 7, 3 P.3d 725). The prosecution must still show \\\"believable evidence of all the elements of the crime charged.\\\" Id. 115 (internal quotation marks omitted). Although the evidence must be credible, the evidence need not establish guilt beyond a reasonable doubt. See id.\\n1 13 Balfour was charged under Utah Code section 76-5-404 with three counts of forcible sexual abuse and one count of attempted forcible sexual abuse.\\nA person commits forcible sexual abuse if the victim is 14 years of age or older and, under cireumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breast of a female, or otherwise takes indecent liberties with another, or causes another to take indecent liberties with the actor or another, 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, without the consent of the other, regardless of the sex of any participant.\\nUtah Code Ann. \\u00a7 76-5404 (2008) (current version as amended at Utah Code Ann. \\u00a7 76-5-404 (Supp.2008)) (emphasis added).\\n\\u00ab 14 Balfour argues that the State failed to put on evidence to prove that Balfour touched the bare skin of his victims. See generally State v. Jacobs, 2006 UT App 356, \\u00b6 6-9, 14, 144 P.3d 226 (holding that the forcible sexual abuse touching standard requires nonconsensual contact with the vice-tim's bare skin). The State, in the instant case, presented no evidence of bare-skin contact with the proscribed body parts. Balfour therefore claims that the bindover should be quashed. The amended information, however, charged Balfour with both touching and taking indecent liberties. While the State concedes it did not present evidence to satisfy the touching prong in light of Jacobs, it argues that it presented sufficient evidence to bind Balfour over under the taking indecent liberties prong. We agree.\\n$15 The phrase \\\"otherwise takes indecent liberties\\\" has not been defined by the Utah Legislature. Applying the doctrine of ejusdem generis, the Utah Supreme Court interpreted this phrase to mean activities of the \\\"same magnitude of gravity as that specifically described in the statute.\\\" In re J.L.S., 610 P.2d 1294, 1296 (Utah 1980); see also State v. Kennedy, 616 P.2d 594, 597 & n. 4 (Utah 1980) (noting the supreme court's invocation, in In re J.L.S., 610 P.2d 1294 (Utah 1980), of the doctrine of ejusdem gen-eris to define the phrase \\\"or otherwise takes indecent liberties\\\"). To determine whether the conduct is of equal gravity to the touching prong, the court must consider the totality of the facts, see State v. Peters, 796 P.2d 708, 711 (Utah Ct.App.1990), including the five factors identified in State v. Bishop, 753 P.2d 439, 482 (Utah 1988), overruled in part on other grounds by State v. Menzies, 889 P.2d 393 (Utah 1994). The Bishop factors are \\\"(1) the nature of the victim's participation (whether the defendant required the victim's participation), (2) the duration of the defendant's acts, (8) the defendant's willingness to terminate his conduct at the victim's request, (4) the relationship between the vie-tim and the defendant, and (5) the age of the victim.\\\" Bishop, 753 P.2d at 482. If, after \\\"considering all the surrounding cireum-stances, the conduct is comparable to the touching that is specifically prohibited,\\\" the defendant \\\"may still be punished under the indecent liberties prong\\\" of Utah Code seetion 76-5-404. Jacobs, 2006 UT App 356, \\u00b6 9, 144 P.3d 226.\\nT 16 In State v. Peters, 796 P.2d 708 (Utah Ct.App.1990), we considered a charge based on taking indecent liberties. There, defendant offered the seventeen-year-old female victim a ride home from school, took her to an abandoned house on the pretext of showing her artwork, grabbed the victim by her jacket, pushed her down the hallway, see id. at 709-10, and told her repeatedly that \\\"he wanted to have sexual relations with her,\\\" id. at 710. For approximately twenty minutes, the victim pleaded with the defendant to desist. See id. After defendant placed his hand on the victim's breast over her clothing, he changed his mind and released her. See id. He was convicted of forcible sexual abuse. See id. at 709. On appeal, this court held that the totality of the facts supported the defendant's conviction for taking indecent liberties. See id. at 711-12.\\n117 Here, as in Peters, three of the complainants were drawn into an unfamiliar area by pretense. Balfour obtained admission into the fourth complainant's home also by pretext, this time by delivering financial aid papers. In all four incidents, Balfour restrained the women against their will, either by closing and locking the door or by physically holding them. Moreover, none of the complainants encouraged or participated in Balfour's conduct. And despite the fact that the complainants were adults, the relationship between Balfour and each woman was unequal. Balfour was the proprietor of a vocational school they wished to attend and the source of potential employment. Furthermore, although the episodes were of shorter duration than the encounter in Peters, during each, Balfour ignored the complainants' explicit and repeated demands that he desist. Nor did Balfour voluntarily terminate his advances. In the three incidents at his office, Balfour persisted until the women managed to pull away from him. In the episode involving D.J., Balfour continued his advances until D.J.'s screaming woke her daughter. Balfour placed his hand on the covered breasts of two of the women, rubbed his naked penis against the covered vagina of another, and attempted to lift the shirt to touch the breasts of the fourth. Under both the Bishop factors and the totality of the facts, we hold that the trial court did not abuse its discretion in denying Balfour's motion to quash the bindover.\\nII. Motion to Sever Counts\\n118 Utah Code section 77-8a-1 permits the State to join charges against a defendant into a single trial when certain criteria are met.\\n(1) Two or more felonies, misdemeanors, or both, may be charged in the same indictment or information if each offense is a separate count and if the offenses charged are:\\n(a) based on the same conduct or are otherwise connected together in their commission; or\\n(b) alleged to have been part of a common scheme or plan.\\n(4)(a) If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.\\nUtah Code Ann. \\u00a7 77-8a-l(a)-(b), (4)(a) (2003). Thus, joinder of multiple offenses is appropriate if the requirements of Utah Code section 77-8a-1(1) are met and neither the defendant nor the prosecution is prejudiced as a result of the joinder. See id.\\nT19 The amended information charged Balfour with three separate counts of forcible sexual abuse and one separate count of attempted forcible sexual abuse. Therefore, the initial inquiry of section 77-8a-1(1), requiring that each offense constitute a separate count, see id. \\u00a7 T7-8a-1(1), is satisfied.\\n120 The trial court further held that the four counts \\\"are part of a common scheme or plan.\\\" This court has interpreted the phrase \\\"common scheme or plan\\\" to apply when the crimes involve a similar fact pattern and proximity in time. See State v. Lee, 881 P2d 114, 117-18 (Utah Ct.App. 1992). \\\"'[Tlo be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the two crimes.? \\\" Id. at 117 (quoting State v. Tipton, 119 Ariz. 886, 581 P.2d 281, 238 (1978)).\\nA. Counts I, II, and IV\\n121 The trial court properly determined that counts I, II, and IV are part of a common scheme or plan. All three counts involved strikingly similar fact patterns that we have already discussed in detail. Balfour argues, however, that joinder here cannot meet the prejudice prong of section 77-8a-1, see Utah Code Ann. \\u00a7 In analyzing the prejudice prong, the trial court must determine \\\"whether evidence of the other erime would have been admissible in a separate trial.\\\" Lee, 831 P.2d at 118. The admissibility of other crimes or prior bad acts is governed by rule 404(b) of the Utah Rules of Evidence, which states:\\nEvidence of other erimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....\\nUtah R. Evid. 404(b).\\n22 The Utah Supreme Court has established a three-part test for assessing whether evidence of other crimes, wrongs, or acts is admissible under rule 404(b). See State v. Nelson-Waggoner, 2000 UT 59, \\u00b6 18-20, 6 P.3d 1120. First, the evidence must be presented for a proper, noncharacter purpose. See id. 118; see also Utah R. Evid. 404(b). Second, the evidence must be relevant to the offense being prosecuted. See Nelson-Waggoner, 2000 UT 59, \\u00b6 19, 6 P.3d 1120; see also Utah R. Evid. 402. Finally, the evidence of other crimes, wrongs, or acts must be admissible under rule 408. See Nelson-Waggoner, 2000 UT 59, \\u00b6 20, 6 P.3d 1120; see also Utah R. Evid. 408. Rule 403 permits exclusion of relevant evidence \\\"if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\\\" Utah R. Eivid. 408.\\n$28 We first consider whether the evidence of the other crimes in this case is admissible for a noncharacter purpose. See Nelson-Waggoner, 2000 UT 59, \\u00b6 18, 6 P.3d 1120. The State argues that the evidence of the other counts was relevant to demonstrate Balfour's intent, Balfour's lack of accident or mistake, and the complainants' lack of consent. In a criminal proceeding, the State carries the burden of proving the elements of the charge beyond a reasonable doubt. See State v. Whitely, 100 Utah 14, 110 P.2d 337, 339-40 (1941). The forcible sexual abuse statute requires the State to prove (1) Balfour took indecent liberties with another over age fourteen, (2) with intent to cause substantial emotional or bodily pain or to arouse or gratify the sexual desire of any person, (8) without consent. See Utah Code Ann. \\u00a7 76-5-404 (2008). While admissibility depends, in part, upon the defenses raised, the general assumption is that \\\"(bly pleading not guilty, defendant placed all elements of the crime at issue, including . intent.\\\" State v. Widdison, 2000 UT App 185, \\u00b6 33, 4 P.3d 100; accord State v. Teuscher, 883 P.2d 922, 926-27 (Utah Ct.App.1994). Thus, we agree with the trial court that evidence from all three counts would be admissible in a trial of any one of them for the noncharacter purpose of showing intent.\\n124 We must next examine whether the evidence of the other counts would be relevant. See Nelson-Waggoner, 2000 UT 59, \\u00b6 19, 6 P.3d 1120. Evidence is relevant if it \\\"tends to prove some fact that is material to the crime charged[,] other than the defendant's propensity to commit crime.\\\" State v. Decorso, 1999 UT 57, \\u00b6 22, 993 P.2d 837. Here, evidence pertaining to the other counts is relevant because it tends to show Balfour's intent. Cf. Nelson-Waggoner, 2000 UT 59, \\u00b6 27, 6 P.3d 1120 (finding evidence of defendant's other unconviected rapes relevant to the issue of lack of consent). \\\"While the bad acts evidence [does] not conclusively prove defendant [intended to commit forcible sexual abuse], the evidence made 'the existence of [that material, consequential] fact . more probable . than it would be without the evidence'\\\" Id. (third alteration and omissions in original) (quoting Utah R. Evid. 401). The evidence is therefore relevant.\\n$25 Last, we must determine whether the evidence meets the requirements of rule 408. See id. 120. Rule 408 prohibits the admission of otherwise relevant evidence when its probative value is significantly outweighed by the risk of prejudice to the defendant. See Utah R. Evid. 408. To determine whether the evidence's probative value is substantially outweighed by the prejudicial effect,\\n\\\"a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.\\\"\\nState v. Shickles, 760 P.2d 291, 295-96 (Utah 1988) (quoting E. Cleary, McCormick on Evidence \\u00a7 190, at 565 (8d ed.1984)). In weighing the probative value against the risk of unfair prejudice, the trial court acted within its discretion in finding that these Shickles factors weigh in favor of a finding of admissibility. Of particular significance are the facts that the three alleged crimes occurred within the same calendar day and that the cireumstances surrounding each incident are strikingly similar. Likewise, the testimony from all three women makes it significantly more likely that Balfour acted with intent. Cf. Nelson-Waggoner, 2000 UT 59, \\u00b6 27-30, 6 P.3d 1120 (admitting evidence of other rapes where that evidence went to the element of consent). Without that corroborating evidence, the \\\"trial resolvels] into a contest of credibility between [the] defendant and [the complainant].\\\" Id. \\u00b6 80.\\n126 Furthermore, it is unlikely the evidence will rouse the jury to overmastering hostility. While Balfour argues he \\\"will be greatly prejudiced in that the evidence will be considered in the aggregate, the testimony of one alleged victim will supplement that of another, and the four counts will be wrongfully commingled and inappropriately considered,\\\" the Utah Supreme Court has held that \\\"[sluch evidence of multiple acts of similar or identical abuse is unlikely to prejudice a jury.\\\" State v. Reed, 2000 UT 68, \\u00b6 31, 8 P.3d 1025 (stating that juries rely on witness credibility, not the number of incidents, to determine a defendant's guilt). Moreover, the trial court expressly found the following:\\nThe evidence in this case involves the touching of protected body parts. It does not involve allegations of more intrusive conduct, such as rape or forcible sodomy. The Court finds that the charged conduct does not rise to the level where a jury would be unable to be fair simply because the evidence comes from a number of different witnesses....\\n27 For the reasons stated above, we see no abuse of discretion in the trial court's denial of Balfour's motion to sever counts I, I1, and IV.\\nB. Count III\\n$28 The trial court also found count III to be sufficiently similar in facts and proximate in time to the other counts to warrant its joinder with counts I, II, and IV. Although we acknowledge the trial court's careful consideration of this issue, we do not interpret factual similarity and temporal proximity so broadly. In reaching our conclusion, we find informative the Utah Supreme Court's ruling in State v. Gotfrey, 598 P.2d 1325 (Utah 1979).\\nT 29 In Goifrey, the defendant was convict, ed of raping his stepdaughter in September 1975, sodomizing his stepson in October 1976, and raping a second stepdaughter in March 1977. See id. at 1827. The defendant appealed the trial court's denial of his motion to quash the information for improper joinder. See id. Although the circumstances surrounding the rapes of his two stepdaughters were nearly identical, the supreme court held the incidents were \\\"not of such similarity . [that] they should have been joined . [because] the two charges of rape relate to incidents several months apart and with different victims.\\\" Id. at 1828. The supreme court held that the sodomy count was likewise inappropriately joined because it was \\\"a separate and distinct offense with different elements.\\\" Id.; see also State v. McCumber, 622 P.2d 353, 355-56 & n. 4 (Utah 1980) (holding that it was improper to join in one trial two counts of aggravated sexual assault, one count of aggravated burglary, one count of attempted burglary, and one count of attempted rape, where \\\"while four of the five counts charged in the information were indeed of similar character, they did not form part of the same criminal transaction, nor were they so nearly identical to evince a common design or scheme\\\").\\n130 Using these cases as guidance, we hold that the trial court exceeded its disceretion in finding that count III meets Utah Code section 77-8a-1(1)'s requirement that the offenses be part of a common scheme or plan, see Utah Code Ann. \\u00a7 T7-8a-1(1) (2008). Count III occurred on September 15, 2008, while the other three counts occurred on January 21, 2005--a full sixteen months later. Count III involved an incident at the home of the complaining witness rather than an encounter in Balfour's office. Finally, unlike the other cases, D.J. alleges that Balfour rubbed his naked penis against her covered vagina but makes no allegations that Balfour touched or attempted to touch her breasts.\\n181 We agree with the State that whether this count should be joined presents a more difficult issue. Nevertheless, we resolve the issue in favor of assuring the defendant a fair trial. \\\"The purpose of [Utah Code section 77-8a-1] is to allow join-der of offenses and thus eliminate multiple prosecutions in the interest of efficiency and economy of time and effort when the interests of justice can best be served thereby.\\\" Gotfrey, 598 P.2d at 1328. However,\\ncare must be taken that [section 77-8a-1] is not misused to deprive an accused of a fair trial upon an offense by joining different offenses so that evidence concerning charges unrelated in time and nature . could be admitted as to the multiple offenses in an effort to stigmatize the defendant and thus make it questionable that the jury would give a fair and dispassionate consideration to the evidence on the first charge.\\nId. For the reasons stated above, we hold that the trial court exceeded its discretion in denying Balfour's motion to sever count III.\\nIII. Motion to Disqualify District Attorney's Office\\n132 Balfour contends that the trial court erred by refusing to disqualify the entire Salt Lake County District Attorney's Office due to the preexisting political relationship between the District Attorney and Balfour. The record demonstrates that upon learning of her relationship with Balfour, the District Attorney immediately removed herself from further involvement with the case and assigned supervisory authority to an assistant district attorney. Balfour argues that these screening actions are insufficient for three reasons: (1) he is entitled to supervisory review by an elected prosecutor; (2) the assignment of supervisory authority to an assistant district attorney was merely illusory; and (@) he is unlikely to receive any lenient treatment or have the charges dismissed due to the District Attorney's fear of an appearance of impropriety.\\nT83 In Utah, a conflict of interest exists when \\\"'counsel [may] make choices advancing other interests to the detriment of his client'\\\" State v. Maughan, 2008 UT 27, \\u00b6 26, 182 P.3d 903 (alteration and omission in original) (quoting Taylor v. State, 2007 UT 12, \\u00b6 124, 156 P.3d 739). The duties and prohibitions of a district attorney are outlined in Utah Code section 17-18-1.7. See Utah Code Ann. \\u00a7 17-18-1.7 (2005). While the statute prohibits a district attorney from prosecuting or dismissing any charges against a person the district attorney previously represented, see id. \\u00a7 17-18-1.7(6)(d), it does not expressly restrict her from partic ipating in a case where she has had a personal or business relationship with the accused, see id. \\u00a7 17-18-1.7. Nevertheless, Utah courts have found disqualification proper whenever the prosecutor has a conflict of interest with the charges or the defendant. See State v. Nickles, 728 P.2d 123, 131 (Utah 1986); State v. McClellan, 2008 UT App 48, \\u00b6 19, 179 P.3d 825, cert. granted, 2008 Utah LEXIS 127 (Utah July 11, 2008). In this case, the District Attorney voluntarily re-cused herself from Balfour's prosecution to avoid even an appearance of impropriety.\\n$34 Despite the District Attorney's withdrawal, Balfour claims that the entire prosecutor's office should have been removed. When disqualification is appropriate, it is usually sufficient to disqualify the particular attorney with a conflict rather than the entire office. See United States v. Bolden, 353 F.3d 870, 879 (10th Cir.2008); see also People v. Vasquez, 39 Cal.4th 47, 45 Cal.Rptr.3d 372, 137 P.3d 199, 205 (2006) (\\\"In most cireumstances, the fact one or two employees of a large district attorney's office have a personal interest in a case would not warrant disqualifying the entire office.\\\" (footnote omitted)); People v. Rupp, 75 Misc.2d 683, 348 N.Y.S.2d 649, 652 (Sup.Ct.1973) (\\\"[The District Attorney should not have disqualified his entire staff, since none of his assistants has an[y] connection with the tenuous conflict of interest.\\\"). In Utah, when the conflicted attorney represented the defendant in the same or a related matter, \\\"the entire prosecutor's office will be assumed to be privy to the confidences obtained by [that conflicted attorney].\\\" McClellan, 2008 UT App 48, \\u00b6 22, 179 P.3d 825. Even in those cases, however, the State may rebut the presumption by demonstrating that the conflicted attorney has been sereened from involvement in the prosecution. See id. The Rules of Professional Conduct also suggest that screening is the most appropriate means of protecting the defendant when the prosecutor has a conflict of interest. See Utah R. Profl Conduct 1.1(\\u00a2) (2007); see also id. R. 1 .7, 1.9 (mandating that attorneys not represent another in the same or a substantially related matter involving a current or former client).\\n135 Here, the District Attorney immediately removed herself from the case and transferred supervisory authority to an assistant district attorney. Thus, even if a presumption of prejudice were imposed, the State has carried its burden of rebuttal. See McClellan, 2008 UT App 48, \\u00b6 22, 179 P.3d 825. We hold that the trial court was correct in finding that disqualification of the entire Salt Lake County District Attorney's Office is unnecessary. See Bolden, 353 F.3d at 875 (noting that disqualification of the entire prosecutor's office is a \\\"drastic measure\\\" (internal quotation marks omitted)).\\n36 We are also unpersuaded by Balfour's claim that he is entitled to supervisory review by an elected official in the prosecution of the charges against him. Balfour has not referenced any authority to support this proposition. Moreover, the Utah Constitution requires the legislature to establish a system of public prosecutors \\\"'who shall have primary responsibility for the prosecution of criminal actions brought in the name of the State'\\\" State v. Robertson, 924 P.2d 889, 890 (Utah 1996) (quoting Utah Const. art. VIII, \\u00a7 16). While the Utah Constitution refers to public prosecutors as elected officials, the Utah Supreme Court has noted that the constitution only confers primary responsibility on the elected prosecutor. See id. at 890-91. Thus, the District Attorney \\\"has the authority to delegate the duties and powers conferred by such a provision to subordinates.\\\" Id. at 892.\\n(37 Balfour's contention that the transfer of authority from the District Attorney to an assistant district attorney was illusory is also unpersuasive. His claim is based on the assistant district attorney's need to consult the District Attorney before agreeing to be bound by a state bar ethics opinion. The decision to be bound by the opinion, however, has policy implications beyond the prosecution of the case against Balfour. Consultation with the District Attorney on that issue does not negate the delegation of all substantive, case-specific decisions to the assistant.\\n1 38 Finally, we reject Balfour's claim that due to the District Attorney's attempt to avoid even an appearance of impropriety, he may not receive \\\"lenient or special\\\" treatment that might otherwise be available. There is ample authority in analogous cases to demonstrate that a criminal defendant has no right to favorable treatment. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (finding defendant not entitled to windfall resulting from counsel's error); State v. Greuber, 2007 UT 50, \\u00b6 13, 165 P.3d 1185 (\\\"'There is no right to a plea offer or to a successful plea bargain.\\\"). We therefore see no merit in Balfour's argument.\\nCONCLUSION\\n{39 We affirm the trial court's denial of Balfour's motion to quash the bindover, its denial of Balfour's motion to sever as to counts I, II, and IV, and its denial of Balfour's motion to disqualify the Salt Lake County District Attorney's Office. We reverse the district court's refusal to sever count IIL.\\n140 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge and JAMES Z. DAVIS, Judge.\\n. Although the amendment did not change the language we are reviewing on appeal, we refer to the code in effect at the time Balfour was charged because the revised statute now includes minimum mandatory sentences not in effect during the time relevant to Balfour.\\n. Balfour has not yet been tried or convicted and is presumed innocent. Nevertheless, at the preliminary bearing, \\\"[the magistrate . view[s] the evidence in a light most favorable to the prosecution and resolvels] all inferences in favor of the prosecution.\\\" State v. Hawatmeh, 2001 UT 51, \\u00b6 3, 26 P.3d 223 (internal quotation marks omitted). The background facts are therefore recited accordingly.\\n. D.J. returned on one occasion because \\\"[shel was trying to look past it, and go to school.\\\"\\n. The record contains conflicting evidence as to whether R.G.'s encounter with Balfour occurred on January 20, 2005, or January 21, 2005. Because the amended information alleges that the incident occurred on January 21, 2005, we use that date in this decision. For purposes of this appeal, however, it is sufficient to note that the incident occurred within twenty-four hours of counts I and IL.\\n. In State v. Jacobs, 2006 UT App 356, 144 P.3d 226, we did not address whether touching the clothed vaginal area of a fifteen-year-old female constituted taking indecent liberties because the State did not charge the defendant under that element of the statute. See id. 192, 10.\\n. The doctrine of ejusdem generis restricts the definition of a general phrase at the end of a statutory list of more specifically proscribed acts to conduct of the \\\"same kind, class, character, or nature as those specifically enumerated, unless there is something to show a contrary intent.\\\" In re A.T., 2001 UT 82, \\u00b6 12, 34 P.3d 228; accord State v. Piep, 2004 UT App 7, \\u00b6 10, 84 P.3d 850.\\n. Balfour also attempts to challenge the trial court's denial of his motion for a new preliminary hearing. However, Balfour makes no arguments and references no law regarding this point. In his reply brief, Balfour merely states \\\"the law requires the Court to remand for an additional preliminary hearing where testimony can be ferreted out to determine if sufficient evidence exists to bind the charges over to trial.\\\" This argument is not adequately briefed, and we do not consider it. See Utah R.App. P. 24; Valcarce v. Fitzgerald, 961 P.2d 305, 313 (1998).\\n. At oral argument, Balfour cited State v. Gentry, 747 P.2d 1032 (Utah 1987), and State v. Banner, 717 P.2d 1325 (Utah 1986), as support for his argument that the counts should not have been joined. Both of these decisions address the application of rule 609 of the Utah Rules of Evidence to impeachment by evidence of a prior conviction. See Gentry, 747 P.2d at 1036-37; Banner, 717 P.2d at 1331-35. The test for join-der of charges, however, utilizes an analysis under rule 404(b), see State v. Lee, 831 P.2d 114, 118 (Utah Ct.App.1992), which prohibits the use of character evidence to prove conduct, except under limited circumstances, see Utah R. Evid. 404(b).\\n. The amended information alleges Balfour put his hand under D.J.'s shirt and touched her breast. However, D.J. expressly refuted this allegation in her testimony at the preliminary hearing.\\n. Because we hold that count III is not part of a common scheme or plan, see Utah Code Ann. \\u00a7 77-8a-1(1) (2003), we need not consider whether Balfour would be prejudiced by joining it for trial with the other counts, see id. \\u00a7 77-82-1(4).\\n. Because the District Attorney voluntarily removed herself from the prosecution of Balfour, we do not consider whether such recusal was necessary.\"}"
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+"{\"id\": \"8219605\", \"name\": \"Kiley MILLER and John Rzeczycki, Plaintiffs and Appellants, v. SAN JUAN COUNTY, a Utah political subdivision; Red Rock 4-Wheelers, Inc.; et al., Defendants and Appellees\", \"name_abbreviation\": \"Miller v. San Juan County\", \"decision_date\": \"2008-05-22\", \"docket_number\": \"No. 20070546-CA\", \"first_page\": \"965\", \"last_page\": \"968\", \"citations\": \"186 P.3d 965\", \"volume\": \"186\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:19:36.857948+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Judges GREENWOOD, BILLINGS, and DAVIS.\", \"parties\": \"Kiley MILLER and John Rzeczycki, Plaintiffs and Appellants, v. SAN JUAN COUNTY, a Utah political subdivision; Red Rock 4-Wheelers, Inc.; et al., Defendants and Appellees.\", \"head_matter\": \"2008 UT App 186\\nKiley MILLER and John Rzeczycki, Plaintiffs and Appellants, v. SAN JUAN COUNTY, a Utah political subdivision; Red Rock 4-Wheelers, Inc.; et al., Defendants and Appellees.\\nNo. 20070546-CA.\\nCourt of Appeals of Utah.\\nMay 22, 2008.\\nBruce R. Baird and Alain C. Balmanno, Sandy, for Appellants.\\nPaul W. Mortensen, Salt Lake City; and Walter Bird, Monticello, for Appellees.\\nBefore Judges GREENWOOD, BILLINGS, and DAVIS.\", \"word_count\": \"1349\", \"char_count\": \"8140\", \"text\": \"OPINION\\nBILLINGS, Judge:\\n1 1 Kiley Miller and John Rzeezycki (Plaintiffs) appeal the trial court's determination that their claim is barred by res judicata. We affirm.\\nBACKGROUND\\nT2 The underlying facts of this case are not relevant on appeal, and we summarize them only for context. Plaintiffs undertook to purchase 160 acres from the Utah School and Institutional Trust Lands Administration (SITLA),. Certain roads pass over the property, including one known as the Strike Ravine Trail that is commonly used for recreation by participants in the Jeep Safari, an annual off-roading event. Prior to the 2004 Jeep Safari, Plaintiffs filed for an injunction (the First Action) against San Juan County, Red Rock 4-Wheelers Inc., and the State of Utah (collectively, Defendants). In essence, Plaintiffs hoped to prevent participants in the 2004 Jeep Safari from using the Strike Ravine Trail where it passes over their property. On March 8, 2005, the trial court granted summary judgment in favor of Defendants, determining that they had a temporary easement of indefinite duration in the Strike Ravine Trail. On March 22, 2006, the trial court signed an order that modified the March 3, 2005 order and added the following paragraph (paragraph 2.C):\\nThis ruling applies only to this action and, except in this action, shall have no [elffect of legal or factual precedent, res judicata, collateral estoppel or other issue preclusion on the parties hereto, those in privity with them, or on any other persons or action.\\n13 On April 6, 2006, Plaintiffs filed a notice of appeal, which was dismissed because the trial court had not yet ruled on all causes of action. Subsequently, the parties filed a stipulation to dismiss the remaining causes of action without prejudice. The trial court entered an order dismissing the remaining claims without prejudice on June 19, 2006. Plaintiffs then filed an untimely notice of appeal, which was also dismissed.\\n1 4 Plaintiffs then brought a second action (the Second Action) that involved the same parties and the same claims that were adjudicated in the First Action. The trial court dismissed the Second Action with prejudice as barred by res judicata. Plaintiffs appeal.\\nISSUES AND STANDARD OF REVIEW\\n15 Plaintiffs argue that the trial court erred in barring the Second Action on the basis of res judicata. This is a decision that we review for correctness. See Buckner v. Kennard, 2004 UT 78, \\u00b6 10, 99 P.3d 842.\\n16 Plaintiffs also argue that the trial court incorrectly relied on rule 41(b) of the Utah Rules of Civil Procedure to dismiss the Second Action with prejudice. We review a trial court's application of rule 41(b) for correctness. See C & Y Corp. v. General Biometrics, Inc., 896 P.2d 47, 53 (Utah Ct.App.1995).\\nANALYSIS\\n17 We first consider Plaintiffs' argument that the trial court erred in barring the Second Action on the bases of res judicata and claim preclusion. Plaintiffs argue that the plain language of paragraph 2.C does not bar the Second Action. Specifically, Plaintiffs rely on the language \\\"[this ruling applies only to this action.\\\" They argue that this refers only to the First Action and plainly does not include the Second Action.\\nT8 We disagree. The language of paragraph 2.C indicates that res judicata, collateral estoppel, and other issue preclusion apply to the First Action-a statement which is necessarily forward-looking. Res judicata and claim preclusion, by definition, apply to future actions that attempt to relitigate claims already addressed in a prior action.\\nT9 Paragraph 2.C states that \\\"except in this action, [the ruling] . shall have no [elffect of legal or factual precedent, res judi-cata, collateral estoppel or other issue preclusion.\\\" (Emphasis added.) Res judicata, collateral estoppel, and other issue preclusion in this action necessarily means that those legal theories will bar a second action involving the same parties and same claims as in the First Action. The fact that paragraph 2.C states that \\\"[the] ruling . shall have no [elffect . on any other action\\\" does not change the meaning of the paragraph. We therefore affirm the trial court's dismissal of the See-ond Action as barred by res judicata.\\n10 Plaintiffs next challenge the trial court's use of rule 41(b) of the Utah Rules of Civil Procedure, to dismiss the case, see Utah R. Civ. P. 41(b). Rule 41(b) states:\\nFor failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in [rule Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.\\nId. (emphasis added).\\n{11 Plaintiffs argue that the March 22, 2006 order was only a grant of summary judgment, not an adjudication on the merits, so rule 41(b) does not apply. A full review of the facts indicates otherwise. The March 22, 2006 order itself was only the result of the parties' stipulation that the March 8, 2005 order would be modified. On June 19, 2006, the parties stipulated to the dismissal without prejudice of the remaining claims and counterclaims the trial court entered another order to this effect, stating that the March 22, 2006 order was an adjudication on the merits. Furthermore, because the June 19, 2006 order eliminated any potential remaining claims and counterclaims, the March 22, 2006 order effectively became the endpoint of the case.\\nT12 Defendants point out that Plaintiffs must have understood this because they filed a notice of appeal, an action which necessitates an underlying final order. Presumably, Plaintiffs would not have filed a notice of appeal if they did not consider themselves bound by the trial court's previous orders. Thus, we conclude that the March 22, 2006 order was a final adjudication on the merits and that the trial court correctly applied rule 41(b) of the Utah Rules of Civil Procedure.\\n13 Finally, Plaintiffs argue that the trial court has the authority to grant an exception to res judicata if equity requires it. Plaintiffs argue that we should allow an exception to res judicata because \\\"the concern which needs to be protected is that the plain language and plain meaning of court orders must be protected, onee those orders are final.\\\" Because we conclude that the plain language of paragraph 2.C bars Plaintiffs Second Action, it is unnecessary for us to grant an exception in this situation.\\nCONCLUSION\\nT 14 The trial court correctly barred Plaintiffs' Second Action on the basis of res judi-cata and issue preclusion based on the plain language of paragraph 2.C. The trial court also correctly concluded that the March 22, 2006 order was an adjudication on the merits, and that, accordingly, the claims were dismissed with prejudice. We affirm the rulings of the trial court.\\n\\\" 15 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge and JAMES Z. DAVIS, Judge.\"}"
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+"{\"id\": \"8362236\", \"name\": \"Richard SPECHT, Plaintiff and Appellant, v. BIG WATER TOWN, Defendant and Appellee\", \"name_abbreviation\": \"Specht v. Big Water Town\", \"decision_date\": \"2007-10-18\", \"docket_number\": \"No. 20060695-CA\", \"first_page\": \"306\", \"last_page\": \"310\", \"citations\": \"172 P.3d 306\", \"volume\": \"172\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Court of Appeals\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:00:51.270232+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BENCH, P.J., GREENWOOD, Associate P.J., and BILLINGS, J.\", \"parties\": \"Richard SPECHT, Plaintiff and Appellant, v. BIG WATER TOWN, Defendant and Appellee.\", \"head_matter\": \"2007 UT App 335\\nRichard SPECHT, Plaintiff and Appellant, v. BIG WATER TOWN, Defendant and Appellee.\\nNo. 20060695-CA.\\nCourt of Appeals of Utah.\\nOct. 18, 2007.\\nBruce R. Baird, Sandy, and Walter T. Keane, Salt Lake City, for Appellant.\\nAric Cramer and J. Robert Latham, Bountiful, for Appellee.\\nBefore BENCH, P.J., GREENWOOD, Associate P.J., and BILLINGS, J.\", \"word_count\": \"2188\", \"char_count\": \"13739\", \"text\": \"OPINION\\nBENCH, Presiding Judge:\\nT1 Appellant Richard Specht appeals the trial court's entry of summary judgment in favor of Big Water Town (Big Water) and the subsequent dismissal of his complaint. Specht lacks standing to maintain an action against Big Water because he failed to allege or prove that Big Water's land use decisions and actions caused him any special damages. Accordingly, we dismiss the appeal for lack of jurisdiction.\\nBACKGROUND\\n1 2 Rocky and Sheryl Pyle (the Pyles) own three adjoining parcels of property in a residential zone in Big Water. On one parcel the Pyles built a 2000-square-foot home and, on one of the adjoining parcels, they began constructing a garage almost equal to the size of the home. In 2003, a city building inspector issued a \\\"red tag\\\" to stop construction of the garage based on the Pyles' failure to obtain a building permit for the garage and failure to comply with Big Water's setback requirements. Shortly thereafter, the Pyles submitted an application for the required building permit.\\nT3 After receiving the Pyles' application, the Big Water Board of Adjustment (Board of Adjustment) held a meeting in which it reversed the red tag, approved the Pyles building permit, and allowed the construction of the garage. In a letter, the Big Water mayor explained that the Board of Adjust, ment reversed the building inspector's decision because it found the setback requirements in the city's zoning regulations to be \\\"vague, ambiguous, and confusing.\\\" The mayor also explained that the reversal was based on Utah Code section 10-9-707, a statute allowing boards of adjustment to grant variances. See Utah Code Ann. \\u00a7 10-9-707 (2003).\\n'I 4 Within a month of the building permit's approval, the Big Water Town Council (Town Council) amended the ordinance regarding setback requirements. Prior to the meeting to discuss the proposed amendment, Big Water posted notice of the meeting in three locations, but did not publish notice of the meeting in a newspaper. The Pyles garage fully complied with the amended setback requirements.\\n[ 5 Specht challenged the Board of Adjustment's decision granting the Pyles' building permit, sought declaration that the amended setback ordinance was invalid due to Big Water's failure to publish notice of its meeting in a newspaper, and requested a writ of mandamus requiring Big Water to enforce the Pyles' violation of the original setback ordinance. In these proceedings, Specht did not allege or identify any special damages he incurred due to the municipality's actions or the Pyles' alleged zoning violations; he identified himself only as an owner of property in Big Water.. The parties brought eross-mo-tions for summary judgment, which resulted in a judgment in Big Water's favor. On appeal, Specht claims that the trial court erred in essentially two ways: first, by ruling that the Board of Adjustment's decision to grant a variance and approve the Pyles' building permit was valid, and second, by determining that Big Water complied with all relevant notice requirements for amending the setback ordinance.\\nISSUE AND STANDARDS OF REVIEW\\nT6 Big Water claims that Specht lacks standing to challenge its land use decisions or to request declaratory and injunctive relief because he failed to allege or prove special damages he incurred due to the municipality's actions or the Pyles' alleged zoning violations. Specht maintains that he is not required to allege or prove special damages because he is seeking declaratory relief.\\n\\\"'[Tlhe question of whether a given individual . has standing to request a particular [form of] relief is primarily a question of law.'\\\" Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, \\u00b68, 82 P.3d 1125 (alteration in original) (quoting Kearns-Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997)). Where there are \\\"factual findings that bear on the issue\\\" of standing, we review them \\\"with deference.\\\" Id. (quotations and citation omitted). However, \\\"[blecause of the important policy considerations involved in granting or denying standing, we closely review trial court determinations of whether a given set of facts fits the legal requirements for standing, granting minimal discretion to the trial court.\\\" Id. (quotations and citation omitted).\\nANALYSIS\\n18 Specht claims that his status as a resident and property owner in Big Water grants him standing to challenge Big Water's land use decisions and to request declaratory and injunctive relief with respect to zoning violations within the municipality. \\\" '[Sitand-ing is a jurisdictional requirement that must be satisfied before a court may entertain a controversy between two parties.\\\" Jones v. Barlow, 2007 UT 20, \\u00b6 12, 154 P.3d 808 (alteration in original) (quoting Morgan, 2003 UT 58 \\u00b66 n. 2, 82 P.3d 1125). The issue of standing requires the court to focus on whether the parties \\\"have both a sufficient interest in the subject matter of the dispute and a sufficient adverseness so that the issues can be properly explored.\\\" National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909, 913 (Utah 1993).\\nT9 A person does not have standing to challenge a municipal land use decision or request injunctive relief for a zoning violation unless he or she has suffered some sort of injury as a result of the decision or violation. Utah statutory law allows a person to challenge a board of adjustment decision, but requires that the challenging person be \\\"adversely affected\\\" by the decision. Utah Code Ann. \\u00a7 10-9-708(1) (2003). Although Utah statutes elsewhere provide that \\\"any owner of real estate within [a] municipality . may institute injunctions, mandamus, abatement, or other appropriate actions,\\\" Utah Code Ann. \\u00a7 10-9-1002(1)(a) (2003), land ownership is an additional requirement for standing, rather than a substitute for the requirement of an adversely affected interest.\\n\\u20ac10 The Utah Supreme Court has consistently stated that particularized injury or special damages is an essential standing requirement for plaintiffs requesting injune-tive relief in land use and zoning cases. In response to a plaintiff property owner who attempted to enjoin her neighbor's zoning violation without demonstrating personal injury, the court recently repeated its previous holding:\\n\\\"A private individual must both allege and prove special damages peculiar to himself in order to entitle him to maintain an action to enjoin [a] violation of a zoning ordinance. His damage must be over and above the public injwry [that] may be caused by the violation of the zoning ordinance.\\\"\\nCulbertson v. Board of County Comm'rs, 2001 UT 108, \\u00b654, 44 P.3d 642 (quoting Padjen v. Shipley, 553 P.2d 938, 939 (Utah 1976)). Thus, to challenge a land use deci sion or enjoin a zoning violation, a party must have some sort of damage that \\\"differ[s] in kind or [is] substantially more than [the injury tol the general community.\\\" Johnson v. Hermes Assocs., Ltd., 2005 UT 82, \\u00b6 15, 128 P.3d 1151.\\n11 Plaintiffs requesting declaratory relief because of zoning violations must likewise allege and prove special damages to have standing to pursue their claims. The Utah Supreme Court has unequivocally stated that a party seeking injunctive relief \\\"must have standing to invoke the jurisdiction of the court\\\" and that the \\\"same jurisdictional standard applies to declaratory judgments.\\\" Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983); see also Miller v. Weaver, 2003 UT 12, \\u00b616, 66 P.3d 592 (\\\"[A] declaratory judgment action may [only] be maintained by a plaintiff who can show that 'the justiciable and jurisdictional elements requisite in ordinary actions are present.!\\\" (quoting Lyon v. Bateman, 119 Utah 434, 228 P.2d 818, 820 (1951))). Thus, \\\" [tlhe threshold [Jurisdictional] requirement that [a plaintiff] have standing is equally applicable whether he seeks declaratory or injunctive relief\\\" Berg v. State, 2004 UT App 337, \\u00b6 6, 100 P.3d 261 (quoting Jenkins, 675 P.2d at 1148). From this arises \\\"[the general rule . that a party having only such interest as the public generally cannot maintain an action\\\" for declaratory relief, but instead, \\\"the proceeding must be initiated by one whose special interest is affected.\\\" Baird v. State, 574 P.2d 713, 716 (Utah 1978) (emphasis added).\\nI 12 Specht claims, however, that Culbertson v. Board of County Commissioners, 2001 UT 108, 44 P.3d 642, stands for the proposition that standing is not a prerequisite to obtaining declaratory relief in zoning cases. In Culbertson, plaintiffs requested both declaratory and injunctive relief, asking the court to declare a developer's actions in violation of county zoning ordinances and order the county to enforce such ordinances. See id. 18. The Utah Supreme Court reversed the trial court's denial of the plaintiffs' request for declaratory relief, but conducted its analysis without addressing the issue of standing. See id. 135-88. The supreme court discussed the issue of standing only when it subsequently addressed the denial of plaintiffs' request for injunctive relief. See id. T4 50-55.\\n1 13 We conclude that the supreme court's analysis in Culbertson does not eliminate the standing requirements for declaratory judgment actions that have been consistently reaffirmed in prior Utah case law. \\\"In general, the court has not subsequently read a decision to work a 'sharp break in the web of the law' unless that ruling caused 'such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one.'\\\" State v. Baker, 935 P.2d 503, 509 (Utah 1997) (quoting United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Rather, \\\"'a break [in the law] has been recognized only when a decision explicitly overrules a past precedent of this [clourt, or disapproves a practice this [cJourt arguably has sanctioned in prior cases.\\\"\\\" Id. (emphasis added) (quoting Johnson, 457 U.S. at 551, 102 S.Ct. 2579). Where the court appears to deviate from precedent but \\\"fail[s] to explain why [it] . abandon[ed al Icing\\u2014established . rule\\\" developed in prior cases and also \\\"faills] to cite that line of cases altogether,\\\" it is \\\"likely that . the court did not even realize that [it] wlas] departing from well-established Utah precedent.\\\" State v. Menies, 889 P.2d 393, 399 (Utah 1994). Since the Culbertson court provided no explanation or acknowledgment of the long-established standing requirement for declaratory judgments, we find Specht's interpretation of Culbertson unpersuasive and follow the standing rule set forth in the cases cited above.\\n(114 Under this well-established rule, Specht lacks standing to bring an action for either declaratory or injunctive relief. Specht fails to prove or even allege any special damages he has suffered due to the Board of Adjustment's decision to grant the Pyles' building permit, the Town Council's improper amendment of the setback ordinance, or the Pyles alleged ongoing violations of the municipality's previous setback ordinance. Specht only asserts that he is a property owner in Big Water and fails to identify any injury he has allegedly suffered over and above the injury that the general Big Water community would suffer in the face of a zoning violation and an improper amendment to a zoning ordinance. Given this lack of standing, we must dismiss his appeal. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989) (\\\"When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action.\\\").\\nCONCLUSION\\n{15 Specht lacks standing because he failed to allege or prove special damages particular to himself resulting from Big Water's land use decision and the alleged zoning violations. As a result, this court lacks jurisdiction and cannot consider the merits of Specht's claims. We therefore dismiss his appeal of the district court's grant of summary judgment in favor of Big Water.\\n16 WE CONCUR: PAMELA T. GREENWOOD, Associate Presiding Judge and JUDITH M. BILLINGS, Judge.\\n. This section of Utah's Municipal Land Use, Development, and Management Act was revised and renumbered in 2005, but the requirement that the challenging party be adversely affected by the land use decision remains unchanged. Compare Utah Code Ann. \\u00a7 10-92-1703 (Supp. 2007) (setting forth the requirements for appealing a board of adjustment decision); Utah Code Ann. \\u00a7 10-9a-801(2)(a) (Supp.2007) (setting forth the requirements for challenging any final municipal land use decision), witt Utah Code Ann. \\u00a7 10-9-708 (2003).\\n. This section of Utah's Municipal Land Use, Development, and Management Act has also been revised and renumbered. Compare Utah Code Ann. \\u00a7 10-9a-802(1)(a) (Supp.2007), with Utah Code Ann. \\u00a7 10-9-1002(1)(a) (2003). Under the revised version, the dual standing requirements of injury and property ownership have been further emphasized. This section now only authorizes \\\"municipalit[ies]\\\" and \\\"adversely affected owner[s] of real estate within [a] municipality\\\" to institute proceedings to enjoin a zoning violation. Utah Code Ann. \\u00a7 10-92-802(1)(a) (Supp.2007) (emphasis added).\\n. Specht also fails to make any argument that he would have standing under any alternative test. See, e.g., Jenkins v. Swan, 675 P.2d 1145, 1150-51 (Utah 1983); Sierra Club v. Utah Air Quality Bd., 2006 UT 74, \\u00b6 35-36, 148 P.3d 960.\"}"
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+"{\"id\": \"8861107\", \"name\": \"BRASHER MOTOR AND FINANCE COMPANY, Inc., a Utah corporation, Plaintiff and Respondent, v. George ANDERSON, Select Cars, Inc., a Utah corporation, and Tony Chapman, Defendants and Appellant\", \"name_abbreviation\": \"Brasher Motor & Finance Co. v. Anderson\", \"decision_date\": \"1967-11-07\", \"docket_number\": \"No. 10821\", \"first_page\": \"104\", \"last_page\": \"108\", \"citations\": \"20 Utah 2d 104\", \"volume\": \"20\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:37:40.240733+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, C. J., and ELLETT, J., concur.\", \"parties\": \"BRASHER MOTOR AND FINANCE COMPANY, Inc., a Utah corporation, Plaintiff and Respondent, v. George ANDERSON, Select Cars, Inc., a Utah corporation, and Tony Chapman, Defendants and Appellant.\", \"head_matter\": \"433 P.2d 608\\nBRASHER MOTOR AND FINANCE COMPANY, Inc., a Utah corporation, Plaintiff and Respondent, v. George ANDERSON, Select Cars, Inc., a Utah corporation, and Tony Chapman, Defendants and Appellant.\\nNo. 10821.\\nSupreme Court of Utah.\\nNov. 7, 1967.\\nGordon I. Hyde, Salt Lake City, for appellant.\\nDuane B. Welling, Salt Lake City, for respondent\", \"word_count\": \"1182\", \"char_count\": \"7066\", \"text\": \"TUCKETT, Justice:\\nThe plaintiff brought this action to recover from the defendants, Select Cars, Inc., and George Anderson, upon certain notes issued by the corporate defendant to the plaintiff in connection with \\\"a floor plan\\\" arrangement whereby the plaintiff agreed to furnish credit in connection with the defendants' business.\\nPlaintiff seeks to recover from George Anderson upon a certain instrument which the plaintiff contends amounts to a guarantee by Anderson of the payment of the notes issued by the corporation in connection with the business. At the time of trial the court concluded that the instrument in question was ambiguous and permitted the introduction of testimony to assist it in ascertaining the intention of the parties. The instrument in question is as follows:\\nThis is to certify that the undersigned George Anderson is conducting a Used Car Business at 2580 South Main, Salt Lake, Utah, under the name of Select Cars, Inc. which business and the primary assets and business license thereof, stand in the name of Select Cars, Inc. In consideration for the Salt Lake Auto Auction and Brasher Motor and Finance Co., Inc. dealing with the undersigned in connection with said business, I hereby authorize-Tony Chapman to sign any drafts, contracts or documents on behalf of said business and hereby jointly and separately agree that each and both of us shall be bound by the signature of either of us in connection with such transactions,\\n/s/ Select Cars Inc.\\nGeorge Anderson Pres.\\nGeorge Anderson\\nDated this 24 day of July, 1964 at Salt Lake City\\nAfter a consideration of the testimony, the court construed the instrument so as to bind the defendant George Anderson as a guarantor of the notes issued by the corporate defendant. The court entered judgment in favor of the plaintiff and against the said George Anderson and Select Cars,, Inc., and also awarded the .plaintiff .judgment for attorney's fees based upon the promises in the notes to pay attorney's fees in case of default.\\nWe are in accord with the court's decision that the instrument in question was in fact ambiguous and that other evidence was proper to aid the court in determining the intention of the parties. We see no reason to disturb the findings of the court that the defendant Anderson did in fact intend to be bound by the instrument in question, and that he intended to guarantee payment to the plaintiff of the notes issued by the corporate defendant.\\nCareful reading of the instrument in question would tend to support the court's conclusion. It will be noted that the instrument contains the following language:\\nThis is to certify that the undersigned George Anderson is conducting a Used Car Business under the name of Select Cars, Inc. which business and the primary assets and business license thereof, stand in the name of Select Cars, Inc. I hereby authorize Tony Chapman to sign any drafts, contracts or documents on behalf of said business and hereby jointly and separately agree that each and both of us shall be bound by the signature of either of us in connection with such transactions. (Emphasis added.)\\nThe quoted language would seem to indicate that the defendant George Anderson was in fact entering into the agreement as an individual. There was also ample testimony tending to show that at the time of the negotiations between the parties it was intended that the defendant George Anderson personally guarantee the payment of obligations of the corporate defendant to be issued to the plaintiff in connection with the plaintiff supplying credit for the business.\\nThe court awarded to the plaintiff attorney's fees based upon the promises set forth in the notes issued by the corporate defendant. It does not appear that there was evidence to support the award of attorney's fees nor does it appear that the defendants agreed that the court might fix the amount of such attorney's fees. In view of the prior decisions of this court it would appear that the granting of attorney's fees based upon the record in this case is error.\\nThe judgment of the court below is affirmed, except as to the award of attorney's fees. No costs awarded.\\nCROCKETT, C. J., and ELLETT, J., concur.\\n. Milford State Bank v. West Field Canal Irrigation Co., 108 Utah 528, 162 P.2d 101; Mathis v. Madsen, 1 Utah 2d 46, 261 P.2d 952.\\n. F.M.A. Financial Corp. v. Build, Inc., 17 Utah 2d 80, 404 P.2d 670.\"}"
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+"{\"id\": \"8861384\", \"name\": \"Beth F. DRURY, Plaintiff and Respondent, v. Colleen LUNCEFORD, Defendant and Appellant\", \"name_abbreviation\": \"Drury v. Lunceford\", \"decision_date\": \"1966-06-16\", \"docket_number\": \"No. 10466\", \"first_page\": \"74\", \"last_page\": \"78\", \"citations\": \"18 Utah 2d 74\", \"volume\": \"18\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:44:00.859038+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonough and callister, jj., concur.\", \"parties\": \"Beth F. DRURY, Plaintiff and Respondent, v. Colleen LUNCEFORD, Defendant and Appellant.\", \"head_matter\": \"415 P.2d 662\\nBeth F. DRURY, Plaintiff and Respondent, v. Colleen LUNCEFORD, Defendant and Appellant.\\nNo. 10466.\\nSupreme Court of Utah.\\nJune 16, 1966.\\nKipp & Charlier, Tel Charlier, Salt Lake \\u25a0City, for appellant.\\nRay H. Ivie, Provo, for respondent.\", \"word_count\": \"1783\", \"char_count\": \"10333\", \"text\": \"CROCKETT, Justice.\\nThis case arose out of a collision in which the defendant's car ran into the rear of the plaintiff's car at an intersection at about 1300 North and 3rd West in Provo in the afternoon 'on April 1, '1964. The question of the defendant's liability was resolved and on February 15, 1965 a trial was had to the court on the issue of damages only. At its conclusion the judge stated from the bench that he thought $2,000 damages would be a fair amount, plus special damages of medical expenses incurred of $126.20. A minute entry was made and entered accordingly. Two days later, on February 17 the judge filed a signed document entitled \\\"Reconsideration,\\\" reciting that he had \\\"reconsidered the law and the testimony and concluded that the plaintiff should have the sum of $4,800 \\u00e1s general damages.\\\" Findings, conclusions and a judgment in the latter amount were signed and filed on March 5, 1965. On May 4, 1965 the court signed and filed an order granting a motion for a new trial which had been timely filed by the defendant. One week later, on May 11, 1965, plaintiff's counsel filed a motion to reconsider and set aside the order granting a new trial. This motion was heard and taken under advisement on June 4, 1965. On September 3, 1965 the judge signed a \\\"Memorandum Decision\\\" stating that the order for a new trial was vacated and that the judgment for $4,800 was reinstated.\\nThe question here presented is whether, after the trial court granted a motion for a new trial, which vacated the judgment, it could then properly entertain and grant a motion to nullify that order, reinstate the vacated judgment, and deny the new trial which had been granted.\\nIt is significant that our Rules of Civil Procedure do not provide for'a motion for the trial court to reconsider or to review its ruling granting or denying a motion for a new trial. Undoubtedly this is advisedly so. The objective of all rules of procedure is that the parties have a full and fair op \\u2022portunity for a trial and determination of the issues in dispute between them. When \\u2022that objective has been achieved, that is what the parties are entitled to, and that should conclude the matter unless there has been substantial and prejudicial error which has thwarted justice. It is because of the possibility of such error that the rules provide for a motion for a new trial, which must be filed within ten days. This gives the parties an opportunity to point out any claimed error; and the court an opportunity to correct it.\\nWhen this has been done and the court has ruled upon the motion, if the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? Tenacious litigants and lawyers might persist in motions, arguments and pressures and theoretically a judge could go on reversing himself periodically at the entreaties of one or the other of the parties ad infinitum. This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.\\nEven though the new rules of procedure had as a part of their purpose the removing of undue technicalities and rigidities in the law, and are to be liberally construed to effectuate justice, nevertheless, they were designed to provide a pattern of regularity of procedure which the parties and the courts could follow and rely upon. When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court. In order to avoid such a state of indecision for both the judge and the parties, practical expediency demands that there be some finality to the actions of the court; and he should not be in the position of having the further duty of acting as a court of review upon his own ruling.\\nAnother important consideration in the problem here presented is that when the trial court has made his decision granting the new trial, that has the effect of vacating the judgment and the case reverts to its status before the trial was had. The party favored by the motion acquires an important right in his entitlement to a new trial, which he should not be arbitrarily deprived of, nor should he be subject to the possible whim or caprice of the judge as to whether he can really have the new trial which has been ordered or not.\\nIt should be observed that what we have said herein is intended to apply to the fact situation shown in the instant case where, pursuant to regular procedure, the court has acted deliberately and advisedly in granting the new trial. However, we also recognize that there may be situations where an order denying or granting a new trial may have been made by inadvertence or mistake, or where there was some irregularity in connection with the obtaining or the granting of the order, in which instance the court could of course act to correct any such mistake or irregularity.\\nThe issue of liability having been resolved, and both parties being free to retry the issue as to damages, the result we reach can cause no serious hardship or injustice in the instant case. This is particularly so here where upon the basis of the evidence presented the trial court seemed so uncertain about the correct judgment: at the conclusion of the trial that it should be $2,000; two days later that it should be $4,800; two months later vacating the judgment entirely and granting a new trial; and three months thereafter vacating that order and reinstating the judgment. In view of these facts and in accordance with the discussion herein it is our opinion that the ends of justice will be best served by allowing the parties to have a new trial as decided by the trial court in its order of May 4. Accordingly, the case is remanded lor that purpose. Costs to defendant (appellant).\\nMcDonough and callister, jj., concur.\\nWADE, J., heard the argument in this cause, but passed' away before the opinion was filed.\\n. That the written judgment supersedes the oral statement of the court is not questioned. McCollum v. Clothier, 121 Utah 311, 241 P.2d 468 (1952); Walker Bank & Trust Co. v. Walker, Case No. 10374, 17 Utah 2d 390, 412 P.24 920 (April 12, 1966); that the written judgment also supersedes the minute entry, see Hartford Accident & Indemnity Co. v. Clegg, 103 Utah 414, 135 P.2d 919.\\n. Rule 59 U.R.C.P.\\n. See Luke v. Coleman, 38 Utah 383, 113 P. 1023 (1911), wherein this court held that the District Court had no authority to entertain a motion, for rehearing of denial of a motion for a new trial. Cf. National Farmers Union P. & C. Co. v. Thompson, 4 Utah 2d 7, 286 P.2d 249, 61 A.L.R.2d 635, and see annotation following in A.L.R.\\n. Rule 60 U.R.C.P.\"}"
\ No newline at end of file
diff --git a/utah/8865209.json b/utah/8865209.json
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+"{\"id\": \"8865209\", \"name\": \"Verne J. OBERHANSLY Plaintiff and Respondent, v. TRAVELERS INSURANCE COMPANY, a corporation, Defendant and Appellant\", \"name_abbreviation\": \"Oberhansly v. Travelers Insurance Co.\", \"decision_date\": \"1956-04-17\", \"docket_number\": \"No. 8450\", \"first_page\": \"15\", \"last_page\": \"20\", \"citations\": \"5 Utah 2d 15\", \"volume\": \"5\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:48:18.507172+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDonough, c. j., and crockett, HENRIOD, and WORTHEN, JJ., concur.\", \"parties\": \"Verne J. OBERHANSLY Plaintiff and Respondent, v. TRAVELERS INSURANCE COMPANY, a corporation, Defendant and Appellant.\", \"head_matter\": \"295 P.2d 1093\\nVerne J. OBERHANSLY Plaintiff and Respondent, v. TRAVELERS INSURANCE COMPANY, a corporation, Defendant and Appellant.\\nNo. 8450.\\nSupreme Court of Utah.\\nApril 17, 1956.\\nLeRoy B. Young and Blaine V. Glas-mann, Jr., Ogden, for appellant.\\nRichards, Alsup & Richards, Ogden, for respondent.\", \"word_count\": \"1777\", \"char_count\": \"10320\", \"text\": \"WADE, Justice.\\nThis is an appeal by the Travelers Insurance Company from a judgment in favor of Verne J. Oberhansly who was the plaintiff below and respondent herein. Verne J. Oberhansly having obtained a judgment against LaMar Pearce and the LaMar Pearce Auto Mart, a corporation, for personal injuries sustained while riding in a car driven by LaMar Pearce, the president of the LaMar Pearce Auto Mart, and being unable to collect said judgment because of the insolvency of both LaMar Pearce and the company, brought this suit to collect it from the Travelers Insurance Company, appellant herein. Appellant had issued its standard comprehensive liability policy which was in force at the time of the accident to the LaMar Pearce Auto Mart.\\nAppellant seeks to avoid its^iiability under the policy on two grounds: (1) That respondent was an employee of the LaMar Pearce Auto Mart, or was such under the provisions of the Workmen's Compensation Act of this state and therefore expressly excluded under the terms of the policy, and (2) that the insured failed to cooperate with the insurer in defense of the action against it in vitiation of the terms of the policy.\\nAs to No. 1, the evidence was uncontradicted that respondent was regularly engaged in a business of his own in no way connected with the LaMar Pearce Auto Mart, but that respondent's brother was connected with the company under what LaMar Pearce called a partnership arrangement, and therefore on a few occasions before the occurrence of the accident on which this suit is based, had, as a favor to this brother, driven cars to Idaho for the company and had neither asked nor received compensation or even expenses for those trips. The company was in financial difficulties and on the day the accident occurred, respondent was called and asked if he would drive one of two cars which the company had decided to return to a consignor in Evanston, Wyoming. He consented to do so if the expenses were paid by the company and LaMar Pearce gave him $10 for this. The $10 was spent for gasoline for all the cars driven on this trip and for meals and refreshments. LaMar Pearce testified that although he had never exercised any control over the activities of respondent on the few occasions when he had delivered cars for the company, he felt that if he had seen him drive in a manner which could result in damage to the car being returned he could tell him not to do so as the cars were his responsibility. Althottgh the company maintained Workmen's Compensation insurance, respondent was not reported as an employee on any reports concerning its employees. From this evidence the court found that respondent was not an employee of the insured at the time of the accident within the meaning of that word as used in the policy, nor was the insured liable under any Workmen's Compensation law for the injuries received by re spondent. We agree with the court's findings. The evidence is conclusive that neither LaMar Pearce, who was representing the company, nor respondent understood that respondent had been hired to drive the car to Evanston, Wyoming. The act was considered by all parties concerned to be a voluntary accommodation. Pearce did not have the right to direct respondent in the manner in which he wished the work to be accomplished. He could not discharge him for a refusal to do as directed. There was no agreement to pay wages or salary. The $10.00 was given for expenses and not as compensation for work. As said by this court in Bingham City Corp. v. Industrial Comm., 66 Utah 390, on page 393, 243 P. 113, on page 114:\\n\\\"The usual test by which to determine whether one person is another's employ\\u00e9 is whether the alleged employer possesses the power to control the other person in respect to the services performed by the latter and the power to discharge him for disobedience or misconduct. Under the Workmen's Compensation Act it is also essential that some consideration be in fact paid or payable to the employ\\u00e9. The purpose of. the act is to provide compensation for earning power, lost in industry, and the only basis for computing compensation is the earning ability of the employ\\u00e9 in the particular employment out of which the loss arises. In short, the term 'employ\\u00e9' indicates a person hired to work for wages as the employer may direct. \\\"\\nIt is clear from all the evidence that there was a reasonable basis for the court to find there was no employee-employer relationship between respondent and the insured either under the ordinary meaning of those terms or under the Workmen's Compensation Act and the court did not err in so finding.\\nAs to No. 2, the evidence disclosed that the insured was in financial difficulties. When respondent commenced his suit, La-Mar Pearce reported the accident to appellant and gave it a written statement of his version of the facts concerning it. He thereafter left the state, and being in debt, he left his new address with only a few people, including his father and an attorney whom he had employed in the past, and asked them not to inform anyone of his address unless absolutely necessary. Appellant procured this address from the attorney and a few months before the date set for trial informed LaMar Pearce by registered mail of the date and that it would be imperative that he be in attendance. The letter also reminded him that under the terms of the policy he was required to give full cooperation to respondent. At the time this letter was received, LaMar Pearce was working as a used car sales manager for a Ford dealer in Antioch, California. He was somewhat new at the job and was working with a view towards obtaining a promotion as a new car sales manager. He therefore telephoned his father in Ogden, Utah and told him to convey a message to the appellant that he would not be present at the trial. He later became a new car sales manager. Although his father called him later to tell him it was important that he come for the trial, and his own attorney so advised him, he did not come because he thought it would jeopardize his chance for the promotion, and since he had given his written statement of the facts to the insurance company, he thought that was sufficient. It further appeared that although the insurance company had a local claims office in Oakland, California, which is about 40 miles from Antioch, and that the Oakland agent regularly covered Antioch, yet no attempt was made by appellant to contact LaMar Pearce personally or to take his deposition before the trial. The court found that LaMar Pearce did not fail to cooperate with the insurance company nor did he fail to comply with the terms of the insurance policy.\\nAlthough an unreasonable failure by the insured to attend the trial and testify when he is a material witness is a \\u00a1breach of a cooperation clause in a liability insurance jpolicy, the mere fact that the insured failed to appear at the trial if his absence is excusable or justifiable and is not without good reason, \\\"does not. in itself constitute lack of co-operation See 29 Am.Jur., Insurance, Sec. 795, page 602. Here the insured because of financial difficulties had to seek employment outside the state. While he was in Utah he fully cooperated with the insurance company, reported the accident when he was sued and gave it a written statement of facts at its request. Long before the trial the insured was informed of his new address and that insured felt his new position and chances for promotion would toe jeopardized if he left to attend the trial and therefore he was not planning on coming back to Utah for that purpose. The insurance company had ample time to take his deposition had they so desired, but they did not do so. Under such circumstances it cannot be said that the insured's absence from the trial was unreasonable and unjustifiable and that the trial court erred in finding that he had not failed to cooperate with the insurance company nor did he fail to comply with the terms of the insurance policy. It should be pointed out that even if his failure to attend the trial could be considered a violation of the cooperation clause, yet, unless the insurance company was substantially prejudiced by such absence, it is not a valid defense against the injured third party. See Wormington v. Associated Indemnity Corp., 13 Cal.App.2d 321, 56 P.2d 1254, where the court upheld the trial court's finding that the assured cooperated with the insurance company where he reported the accident and gave his deposition and the insurance company had an opportunity to cross-examine, and said that even if there had been a lack of cooperation it would not have been prejudicial under such facts. In the instant case, although no deposition was taken, the insurance company had plenty of opportunity to take one if it had wanted to. It did take a written statement, hut did not see fit to take a deposition. An insurance company must use due diligence in performing its part of the contract. See Jensen v. Eureka Casualty Co., 10 Cal.App.2d 706, 52 P.2d 540. Although one of the witnesses to the accident changed his story at the trial so that his testimony instead of being favorable to the insured was unfavorable, if the insurance company had taken LaMar Pearce's deposition, his version of the accident could have been introduced in evidence and his defense presented in that manner. Furthermore, it cannot he said as a matter of law that LaMar Pearce was unreasonable in failing to come hack to Utah for the trial when his livelihood may have depended upon his remaining on his job at that time and his version of the facts could have been presented through a deposition. For general annotations on the effect of the failure to attend trial or removal to another state by the insured on the insurer's liability under a clause requiring insured's cooperation, see 72 A.L.R. 1468, 98 A.L.R. 1475 and 139 A.L.R. 793.\\nAffirmed. Costs to respondent.\\nMcDonough, c. j., and crockett, HENRIOD, and WORTHEN, JJ., concur.\"}"
\ No newline at end of file
diff --git a/utah/8865242.json b/utah/8865242.json
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+"{\"id\": \"8865242\", \"name\": \"In re Contempt of Neuman C. PETTY, Appellant\", \"name_abbreviation\": \"In re Petty\", \"decision_date\": \"1967-01-19\", \"docket_number\": \"No. 10690\", \"first_page\": \"320\", \"last_page\": \"325\", \"citations\": \"18 Utah 2d 320\", \"volume\": \"18\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:44:00.859038+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, C. J., and CALLISTER, TUCKETT, and HENRIOD, JJ., concur.'\", \"parties\": \"In re Contempt of Neuman C. PETTY, Appellant.\", \"head_matter\": \"422 P.2d 659\\nIn re Contempt of Neuman C. PETTY, Appellant.\\nNo. 10690.\\nSupreme Court of Utah.\\nJan. 19, 1967.\\nLee W. Hobbs, Salt Lake City, for appellant.\\nPhil L. Hansen, Atty. Gen., Ronald N. Boyce, Salt Lake City, for respondent.\", \"word_count\": \"1825\", \"char_count\": \"10473\", \"text\": \"ELLETT, Justice.\\nThe appellant appeals from a sentence imposed for alleged contempt of court committed when he refused to testify as a witness in a case wherein another person was being prosecuted for the crime of perjury in the first degree. In a separate case he was jointly charged with the defendant and others with the crime of conspiracy to commit ten alleged crimes consisting of one hundred and forty-three overt acts.\\nAt the perjury trial the appellant was called by the State and was sworn to testify truly and fully. He gave his name and address and on advice of counsel refused to answer any further questions. It was known that he was the employer of the defendant in the perjury case, and the issue therein was as to whether that defendant had embezzled some money and subsequently paid it back.\\nArticle I, Section 12, of the Constitution of Utah states: \\\" The accused shall not be compelled to give evidence against himself This privilege is implemented in our Code by Section 78-4-9, U.C.A.19S3.\\nSection 76-28-58, U.C.A.1953, provides as follows:\\nEvery person who, having knowledge of the actual commission of a crime, takes money or property of another or any gratuity or reward, or any engagement or promise thereof, upon any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in the cases provided for by law in which crimes may be compromised by leave of court, is punishable .\\nAppellant argues that if he knew the crime of embezzlement had been committed and had agreed not to prosecute if the money was repaid, he would be subject to prosecution. Certainly he should not be compelled to testify to matters which might tend to implicate him in any crime growing out of any one or more of the one hundred and forty-three overt acts charged against him in the conspiracy case.\\nThe district attorney and the court both recognized this possibility, and the district attorney moved to dismiss the conspiracy case in its entirety as to the appellant with prejudice and to grant immunity to the appellant from any and all offenses growing out of his testimony, and the court granted the motion.\\nThe first question to be dealt with is whether or not the district attorney had the power to grant immunity to the witness. In the case of Apodaca v. Viramontes, 53 N.Mex. 514, 212 P.2d 425, 13 A.L.R.2d 1427, the court said:\\nWe have been unable to find decisions of the courts of any state upholding the power of the prosecuting officer and the court, either or both, to grant immunity to the witness in the absence of express constitutional or statutory authority, except certain decisions from the State of Texas.\\nIn Utah there is neither constitutional nor statutory authority for the granting of such immunity by the court or the district attorney.\\nSeveral sections of our 1953 Code give immunity to the appellant from any prosecution under the conspiracy charge, viz. :\\n77-51-4. Motion of district attorney. The court may, either of its own motion or upon the application of the district at torney, in furtherance of justice order an action, information or indictment to be dismissed. The reasons for the dismissal must he set forth in an order entered upon the minutes.\\n77-51-6. Dismissal a bar, except in felony cases. An order for the dismissal of an action as provided in this chapter shall be a bar to any other prosecution for the same offense, if it is a misdemeanor; but shall not be a bar, if the offense is a felony.\\nSince the crime of conspiracy charged was an indictable misdemeanor (76-12-1), it follows that a dismissal would prevent any further prosecution for that particular charge. Furthermore, Sections 77-31-7 and 9 give any defendant an immunity from further prosecution for the particular crime when one jointly charged with another is dismissed from the case so he may he a witness for the State. Those sections read as follows:\\n77-31-7. Discharging one of several defendants \\u2014 To testify for state. When two or more persons are included in the same charge the court may, at any time before the defendants have gone into their defense, on the application of the attorney for the state, direct any defendant to be discharged, that he may be a witness for the state.\\n77-31-9. Discharge a bar. The order mentioned in the two next preceding sections shall be an acquittal of the defendant discharged, and shall be a bar to another prosecution for the same offense.\\nThese two sections will protect him from further prosecution even in cases of felony when the purpose is to have the defendant testify. We see no conflict between the quoted provisions as cited above.\\nWhile a dismissal under any of those statutes would be a bar to further prosecution of the defendant for the particular crime of conspiracy as charged, it would not give any immunity to him for any other crime which he might reveal by answering questions propounded to him. He could not claim the right to remain silent since he no longer was a defendant in the case, but he had all of the rights and immunities of any other witness and needed not answer a question if it tended to incriminate him for any other crime.\\nThe second question presented is whether or not a witness is to be the judge of whether his testimony will tend to incriminate him or whether the court can determine that matter without requiring the defendant to reveal all of the facts which prompt him to believe he would be incriminated.\\nSouth Carolina dealt with this question as early as 1819 in the case of State v. Edwards, 2 Nott & McC. 13, where it was said:\\nI presume no rule on the subject of evidence is better established than that a witness shall not be bound to criminate himself. The only difficulty arises in the application of the rule. It must be admitted that if the question has a tendency to criminate the witness, according to the rule he is not bound to answer. But it is said the Court should decide this point, as to some questions. It is utterly impossible that the Court can decide without possessing a full and complete knowledge of all the facts which it may be important for the witness to conceal. Therefore, something must necessarily be left to the witness; and we have the same security for a knowledge of the fact, that he may be implicated by the answer, that we have for the knowledge of any other fact. It was urged that an ignorant man might not be able to decide. The court will always so instruct a witness as to enable him, if he possesses any understanding, to determine whether he may be jeopardized by the answer; and if the answer may form one link in a chain of testimony against him, he is not bound to answer.\\nThe rule set out in the South Carolina case is more favorable to the defendant than that of most states. The better holding seems to be that set out by Justice Cardozo in Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, 494, 87 A.L.R. 418:\\nIt is enough, to wake the privilege into life, that there is a reasonable possibility of prosecution and that the testimony, though falling short of proving the crime in its entirety, will prove some part or feature of it, will tend to a conviction when combined with proof of other circumstances which others may supply.\\nIn Ex parte Senior, 37 Fla. 1, 19 So. 652, 32 L.R.A. 133, the court spoke of the privilege as follows:\\nThe privilege must be claimed in good faith, and not as a shield to defeat justice. It was held in Reg. v. Boyes, 1 Best & S. 311, that, to entitle a witness to the privilege of silence, \\\"the court must see from the circumstances of the case, and the nature of the evidence which he is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Moreover, the danger to be apprehended must be real and appreciable, with reference to the ordinary operations of law in the ordinary course of things.\\\" While the witness must judge of the effect of his answer, and should not be required to explain how it will criminate him, yet the court must determine, under all the circumstances of the case, whether such will be its tendency from the question asked; and where, from the nature of the investigation and the character -of the testi mony sought, it reasonably appears that the answer may criminate, or tend to criminate, the witness has the right to claim his privilege, and is not hound to answer.\\nOf course, in dealing with questions to which it would obviously be arbitrary and unreasonable to say that any answer would tend to incriminate the witness, the court would be justified in substituting his judgment for that of the witness and in requiring the witness to answer. If the court has any doubt as to whether or not the witness might be incriminated by answering a question, he should not hold the witness in contempt until he has first given him an opportunity to explain by such noncriminatory evidence as he may have why he claims the privilege ; and in the case of Sandrelli v. Commonwealth, 342 Mass. 129, 172 N.E.2d 449, 88 A.L.R.2d 450, the trial court refused evidence contained in newspaper articles and the proffered statement of the district attorney regarding those suspected of crime, and the appellate court reversed the holding of contempt by reason of the improper exclusion of these matters.\\nOne further point was raised in the State's brief but not urged in argument, and that was the claim that because of the testimony of the district attorney relating to knowledge which he had of facts in the case being tried which knowledge was gained partly by conversation with appellant, that the appellant waived his privilege not to testify. Neither the record nor the law supports such a contention, and so it is not discussed further.\\nThe Attorney General orally admitted that the appellant in this matter had a privilege not to answer the questions propounded to him, and with this admission we are in agreement.\\nThe order holding appellant in contempt' is reversed and the matter remanded to the trial court with directions to quash the commitment and discharge the appellant.\\nCROCKETT, C. J., and CALLISTER, TUCKETT, and HENRIOD, JJ., concur.'\"}"
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diff --git a/utah/8865326.json b/utah/8865326.json
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index 0000000000000000000000000000000000000000..ec337a293799fc92d9f638b1c229dbd41b7e84a8
--- /dev/null
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+"{\"id\": \"8865326\", \"name\": \"PLC LANDSCAPE CONSTRUCTION, Plaintiff and Respondent, v. PICCADILLY FISH 'N CHIPS, INC., Defendant and Appellant\", \"name_abbreviation\": \"PLC Landscape Construction v. Piccadilly Fish 'N Chips, Inc.\", \"decision_date\": \"1972-10-27\", \"docket_number\": \"No. 12607\", \"first_page\": \"350\", \"last_page\": \"352\", \"citations\": \"28 Utah 2d 350\", \"volume\": \"28\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:11:00.656594+00:00\", \"provenance\": \"CAP\", \"judges\": \"Henriod, J., concurred in result.\", \"parties\": \"PLC LANDSCAPE CONSTRUCTION, Plaintiff and Respondent, v. PICCADILLY FISH\\u2019N CHIPS, INC., Defendant and Appellant.\", \"head_matter\": \"502 P.2d 562\\nPLC LANDSCAPE CONSTRUCTION, Plaintiff and Respondent, v. PICCADILLY FISH\\u2019N CHIPS, INC., Defendant and Appellant.\\nNo. 12607.\\nSupreme Court of Utah.\\nOct 27, 1972.\\nHenriod, J., concurred in result.\\nStrong, Poelman & Fox, Harold A. Hintze, Salt Lake City, for defendant and appellant.\\nC. DeMont Judd, Jr., Ogden, for plaintiff and respondent.\", \"word_count\": \"781\", \"char_count\": \"4681\", \"text\": \"CROCKETT, Justice:\\nPlaintiff sued to recover a balance of $1,-169.53 for landscaping the premises of defendant's newly established cafe at 1418 Wall Avenue in Ogden. After the plaintiff had presented its evidence, the defendant challenged its sufficiency by a motion to dismiss. The court took the matter under advisement and thereafter made a memorandum decision, and made findings (as permitted by Rule. 41(b), .\\u00da.R.C.P.) ' and entered judgment against the defendant for the amount sued for.\\nThe negotiations between the parties were oral concerning the landscaping which plaintiff first estimated at about $7400: However, in their discussions, due to elimination of some items, and the fact that some of the work would be done by the defendant, the parties arrived at a figure of about $4600. As the work progressed, because problems arose, including the fact that the defendant was unable to participate to the extent they had contemplat\\u00e9d, the cost was increased to what the plaintiff contends was reasonably worth $6,669.53 for all labor arid material it had furnished. Of this the defendant paid $5,500, but refused to pay the balance which is the subject of this suit. \\u2022\\nThe contentions of the defendant are (1) that the plaintiff -should be bound by the original amount agreed upon and that the court erred in allowing the plaintiff to recover upon quantum meruit rather than upon its pleaded express contract, and (2)' that the evidence failed to prove the value of the material and labor to be worth the $6,669.53 as found by the trial court.\\nAs to (1) above: Except where a change, modification or addition to a contract may conflict with the well-recognized rule against varying a written contract by parol, there is nothing so sacrosanct about having entered into one agreement that it will prevent the parties entering into any such change, modification, extension or addition to their arrangement for doing business with each other that they may mutually agree. That is what appears to have happened here and such subsequent agreements are governed by the same rules as to proof and enforceability as the original agreement.\\nNeither do we see any such prejudice to the defendant as would justify reversing the judgment because the plaintiff's complaint was an account stated for labor and materials, which defendant urges should be characterized as on express contract, whereas the court allowed recovery on the basis of quantum meruit. We have heretofore held that such a variance is not prejudicial error so long as the defendant was not disadvantaged by being denied a fair opportunity to meet the change in theory of recovery.\\nAs to defendant's contention (2) above, challenging the sufficiency of the evidence : defendant's argument amounts to the placing its own interpretation upon and criticism of the plaintiff's evidence, undoubtedly and perhaps understandably colored by defendant's desire as to the result. But this court cannot properly indulge any such favor to the defendant's position, but view it in accord with the findings of the trial court.\\nIn regard to the addition of certain substantial items to the project, Mr. Dale R. Coolc for the plaintiff stated that the defendant's agent: \\\" . . . would say, well we have got to get it done, so you guys go ahead and we will work this out later.\\\" Plaintiff's evidence also was to the effect that the defendant did not do some of the labor as agreed, for which the plaintiff had to restore charges; and that the value of all of the labor and materials was the $6669.53, for which the defendant was billed. The trial court, whose prerogative it is to find the facts, having found accordingly, there is no basis upon which to upset the judgment.\\nAffirmed. Costs to plaintiff (respondent).\\nCALLISTER, C. J., and TUCKETT and ELLETT, JJ., concur.\\nHENRIOD, J., concurs in the result.\\n. See Davis v. Payne and Day, 10 Utah 2d 53, 348 P.2d 387. Cheney v. Rucker, 14 Utah 2d 205, 381 P.2d 86.\\n. Taylor v. E. M. Royle, 1 Utah 2d 175, 264 P.2d 279; Morriss v. Russell, 120 Utah 545, 236 P.2d 451; and sec Rule 54(c)\\n(1), which provides in part:\\nevery final judgment shall grant the relief to which the party . is entitled, even if the party has not demanded such relief in his pleadings .\\n.See Glazier & Sons, Inc. v. Larsen, 26 Utah 2d 429, 491 P.2d 226.\"}"
\ No newline at end of file
diff --git a/utah/8866002.json b/utah/8866002.json
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index 0000000000000000000000000000000000000000..0c43cb4452fdd0393ed685b5711cc95c94a68e93
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+"{\"id\": \"8866002\", \"name\": \"The STATE of Utah, Plaintiff and Respondent, v. Fred A. CUNICO, Defendant and Appellant\", \"name_abbreviation\": \"State v. Cunico\", \"decision_date\": \"1969-12-22\", \"docket_number\": \"No. 11730\", \"first_page\": \"325\", \"last_page\": \"328\", \"citations\": \"23 Utah 2d 325\", \"volume\": \"23\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:44:18.519618+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, C. J., and CALLISTER, HENRIOD and ELLETT, JJ., concur.\", \"parties\": \"The STATE of Utah, Plaintiff and Respondent, v. Fred A. CUNICO, Defendant and Appellant.\", \"head_matter\": \"462 P.2d 720\\nThe STATE of Utah, Plaintiff and Respondent, v. Fred A. CUNICO, Defendant and Appellant.\\nNo. 11730.\\nSupreme Court of Utah.\\nDec. 22, 1969.\\nBrian R. Florence, of Florence, Hutchi-son & Ziegler, Ogden, for appellant.\\nVernon B. Romney, Atty. Gen., Lauren N.. Beasley, David S. Young, R. Bruce Bybee, Asst. Attys. Gen., Salt Lake City, for respondent.\", \"word_count\": \"976\", \"char_count\": \"5689\", \"text\": \"TUCKETT, Justice.\\nAppellant Fred Cunico and William White were charged with the possession of marijuana. The jury found both of the defendants guilty and Fred Cunico has appealed to this court.\\nThe plaintiff is here claiming he is entitled to a reversal on three grounds. His first ground is that the trial court denied his motion to suppress certain evidence which was obtained by a search of the defendant's apartment. Secondly, he claims that the trial court misdirected the jury by giving an erroneous instruction. Thirdly, that the trial court at the time of pronouncing sentence took into consideration reports and information other than the testimony of witnesses examined in open court.\\nOn February 14, 1969, two deputy sheriffs of Weber County searched the premises at 170 Ogden Canyon wherein appellant and his co-defendant resided. Prior to the search the officers had presented an affidavit to one of the judges of the District Court of Weber County and a search warrant was issued by the court. The affidavit and warrant were not included in the record on appeal. However, appellant's brief sets forth the allegations upon which the warrant was issued. The defendant claims that the affidavit failed to state facts sufficient to show probable cause for the issuance of the warrant. The affidavit of the officer sets forth that he had received the information from one of the nurses at St. Benedict's Hospital, where the defendant was employed, to the effect that during a telephone conversation with William White, the co-defendant, that White was on a \\\"trip\\\" but that he did not indicate the type of drug he had used. Also the officer had received information from a pastor of a church to the effect that he was a friend of the White family and that William White had been using narcotics and also that he had some mental problems. A telephone conversation between the nurse and William White was a call made by the nurse to the residence of William White at 170 Ogden Canyon.\\nWe are of the opinion that the allegations of the affidavit as set forth in the brief of the appellant were sufficient for the district court to determine that there was probable cause to believe that a nar cotic was being used at the premises specified in the affidavit. The fact that the appellant here was not named in the affidavit nor the warrant is of no importance inasmuch as Cunico resided with White and he does not here contend that he was not an occupant of the premises. The affidavit of the officer was based upon hearsay, but that fact does not affect the validity of the warrant issued thereon as it appears that the informants were reliable and that the officer was entitled to rely on the information supplied.\\nThe officers during the search of the premises occupied by the defendant found and confiscated a small quantity of marijuana. The marijuana taken during the search was received in evidence during the trial of the cause in the court below. The defendant complains that it was error for the court to give the following instruction to the jury:\\nThe law makes no distinction between the possession of a great amount or the small amount, though the amount possessed may be of concern to a judge in passing sentence,\\nWhile the court may well have omitted that part of his charge to the jury, nevertheless it does not appear to have prejudicially affected the rights of the defendant in view of the fact that the court did instruct the jury that the State had the burden of provr ing beyond a reasonable doubt that the defendants and each of them were in possession of the narcotic.\\nAs a third ground of reversal the appellant claims that the trial court abused its discretion in considering materials not available to the defendant at the time of pronouncement of judgment. Section 77-35-12, U.C.A.1953, provides:\\nWhen discretion is conferred upon the court as to the extent of punishment, the court, at the time of pronouncing judgment, may take into consideration any circumstances, either in aggravation or mitigation of the punishment, which may then be presented to it by either party.\\nIt is the defendant's contention that Section 77-35-13, U.C.A.1953, requires that matters in aggravation or mitigation of punishment may only be presented to the court by the testimony of witnesses at a hearing for that purpose. In this case the law specifies the sentence which must be pronounced. Under the indeterminate sentence law the length of time a defendant is required to serve in prison or in a county jail rests solely with the Board of Pardons. The report or other information the court reviewed prior to pronouncement of judgment is not included in the record on appeal. It does not appear that the court abused its discretion and in any event it would appear that the court exercised clemency and that the defendant was placed on probation which as a condition thereof required him to serve a period of time in the county jail.\\nWe see no error in the record requiring a reversal of the verdict and judgment of the court and the same is affirmed.\\nCROCKETT, C. J., and CALLISTER, HENRIOD and ELLETT, JJ., concur.\\n. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. See also Spinelli v. United States, 293 U.S. 410, 89 S.Ct. 584 21 L.Ed.2d 637.\\n. State v. Martin, 49 Utah 346, 164 P. 500.\"}"
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diff --git a/utah/8867377.json b/utah/8867377.json
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+"{\"id\": \"8867377\", \"name\": \"Dorothy W. OLSON, administratrix of the Estate of Mary J. Westover, Deceased, Plaintiff and Appellant, v. Clyde EDMONDS, Ward Holbrook, Edith Garner, Noble Chambers, Cache County Department of Public Welfare and State of Utah Department of Public Welfare, Defendants and Respondents\", \"name_abbreviation\": \"Olson v. Edmonds\", \"decision_date\": \"1959-04-03\", \"docket_number\": \"No. 8975\", \"first_page\": \"56\", \"last_page\": \"58\", \"citations\": \"9 Utah 2d 56\", \"volume\": \"9\", \"reporter\": \"Utah Reports, Second Series\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:35:21.182309+00:00\", \"provenance\": \"CAP\", \"judges\": \"CROCKETT, C. J., and WADE and McDonough, jj., concur.\", \"parties\": \"Dorothy W. OLSON, administratrix of the Estate of Mary J. Westover, Deceased, Plaintiff and Appellant, v. Clyde EDMONDS, Ward Holbrook, Edith Garner, Noble Chambers, Cache County Department of Public Welfare and State of Utah Department of Public Welfare, Defendants and Respondents.\", \"head_matter\": \"337 P.2d 431\\nDorothy W. OLSON, administratrix of the Estate of Mary J. Westover, Deceased, Plaintiff and Appellant, v. Clyde EDMONDS, Ward Holbrook, Edith Garner, Noble Chambers, Cache County Department of Public Welfare and State of Utah Department of Public Welfare, Defendants and Respondents.\\nNo. 8975.\\nSupreme Court of Utah.\\nApril 3, 1959.\\nOlson & Calderwood, Logan, for appellant.\\nEarl S. Spafford, Asst. Atty. Gen., E. R. Callister, Jr., Atty. Gen., for respondents.\", \"word_count\": \"524\", \"char_count\": \"3204\", \"text\": \"HENRIOD, Justice.\\nAppeal from an adjudication that where a statutory recipient of old age assistance dies leaving real property, and the heirs or his estate do not settle the statutory lien against such property within 90 days after the death, interest at 6% is chargeable against the $1,000 statutory exemption allowable where settlement is had within that period. Affirmed. No costs awarded.\\nAppellant urges that the exemption statute stating that \\\"at the time of the settlement of a lien there shall be a cash exemption of $1,000.00 to be deducted from the market value of such property, less any assistance granted,\\\" does not permit any invasion of the exemption because of the wording which we have italicized.\\nIt is conceded that where the lien is permitted to be paid off by the heirs on a deferred plan extending beyond the 90-day period, 6% is required to be charged on any deferred unpaid balance. The estate's assets are chargeable with such interest. It must be conceded further that the $1,000 exemption is an asset of the estate. Counsel for appellant makes such concession when, in his brief, he advances the theory and expresses the opinion that the amount of the exemption was meant by the legislature to defray expenses of the last illness and funeral of the recipient.\\nIn this case, the property was not sold for nearly three years after the death, and the $1,000 representing the exemption came into the hands of the welfare people who charged interest admittedly accrued on deferred payments as an offset against such fund. It would seem rather anomalous to say that the amount represented by the exemption, as an asset of the estate, must be set aside as untouchable, useable only to pay creditors having claims for funeral and last illness expenses, while the welfare authority, made a creditor by statute insofar as interest on deferred payments is concerned, would have no recourse to such an asset.\\nWe believe that the phraseology of the statute that gives the exemption \\\"at the time of the settlement?' reasonably can be interpreted only to apply where settlement is made within, not without, the 90-day grace period, after which interest is chargeable, and we so hold.\\nCROCKETT, C. J., and WADE and McDonough, jj., concur.\\nWORTHEN, J., concurs in result.\\n. Title 55-2-5(1) (a), U.C.A.1953, as amended (1957 Pocket Supp.), providing for a pledge by an old age recipient of bis interest in any real property to secure repayment of any amounts afforded him by way of old age assistance.\\n. Title 55-2-5(1) (c), U.C.A.1953, as amended (1957 Pocket Supplement).\\n. Title 55-2-5(3) (b), U.C.A.1953, as amended (1957 Pocket Supplement).\\n. Title 55-2-5(2), U.C.A.1953, as amended (1957 Pocket Supplement).\"}"
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diff --git a/utah/8868208.json b/utah/8868208.json
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+"{\"id\": \"8868208\", \"name\": \"ANSON v. ELLISON et al.\", \"name_abbreviation\": \"Anson v. Ellison\", \"decision_date\": \"1943-08-05\", \"docket_number\": \"No. 6491\", \"first_page\": \"576\", \"last_page\": \"583\", \"citations\": \"104 Utah 576\", \"volume\": \"104\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:53:47.491764+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDONOUGH, WADE, and MOFFAT, JJ., concur.\", \"parties\": \"ANSON v. ELLISON et al.\", \"head_matter\": \"ANSON v. ELLISON et al.\\nNo. 6491.\\nDecided August 5, 1943.\\n(140 P. 2d 653.)\\nSee 61 C. J. Taxation, sec. 1948; 26 K. C. L. 418 (8 Perm. Supp. 5772).\\nWhite, Wright & Arnovitz of Salt Lake City, for ap-pelant.\\nE. R. Christensen, A. Pratt Kesler, and Homer Holmgren, all of Salt Lake City,, for respondents.\", \"word_count\": \"2165\", \"char_count\": \"12205\", \"text\": \"WOLFE, Chief Justice.\\nAppeal from a judgment of no cause of action.\\nIn consideration of the sum of $275.58, Salt Lake County, on June 7, 1939, issued a quit-claim deed to Ruth Anson, plaintiff and appellant in this case. This deed recited:\\n\\\"Salt Lake County grantor, hereby Quit Claims to Ruth Anson, Grantee for the sum of Two Hundred Seventy-five and 58/100 ($275.58) Dollars the following described tract of land in Salt Lake County, State of Utah: Lots 53 to 56 Liberty Park Add.\\n\\\"This deed is made under authority of Title 80, Chapter 10, Section 68, of the Revised Laws of Utah 1933 and as amended by Chapter 62 of Session Laws of 1933, and in pursuance of an order of the Board of County Commissioners of Said Salt Lake County, made the 7th day of June, 1939', vesting in the purchaser all of the title of the state, county, and each city, town, school or other taxing district interested in said real estate because of title passing under the tax sales of the year 1934, 1935, 1936, 1937, and 1938, and no other.\\n\\\"Witness the hand of said grantor, this 7th day of June, 1939.\\n\\\"Salt Lake County\\n\\\"A County of the State of Utah\\n\\\"By William J. Korth,\\n\\\"County Clerk of Salt Lake County.\\\"\\nUpon the receipt of this deed the appellant, hereafter called plaintiff, instituted this action to quiet title to the property described in the deed. Record title was in the name of Nina E. Ellison, a resident of California who had died prior to the date of the issuance of this quitclaim deed. An attempt was made to serve her administrator in California and the several heirs, but the court held that proof of service was not made in the manner required by 104-5-15, R. S. U. 1933, and that therefore these parties were not before the court. This holding is not questioned on this appeal. One L. W. Emmertson who had been appointed ancillary administrator for the estate of Nina E. Ellison in Utah was served. Salt Lake City was made a party defendant for the reason that it claimed an interest in the property under and by virtue of the levy of a special assessment which it claimed constituted a lien on this property.\\nThe complaint alleged ownership in the plaintiff, but did not allege the source from which said ownership was obtained. Emmertson, as administrator for the estate of Nina E. Ellison, defaulted. Salt Lake City answered denying the plaintiff's ownership and setting up its claimed' lien on the property for special paving assessments. It should be noted that Salt Lake did not ask for any affirmative relief, but merely prayed that the complaint be dismissed. In reply the plaintiff alleged that she had obtained title to this property by virtue of the quitclaim deed set out above and that the property conveyed to her by this deed came free from any lien claimed by Salt Lake City. Plaintiff also offered to quit-claim her interest to the city or any other defendant who would pay to her the sum she paid for the quitclaim deed together with interest, costs and expenses. The case proceeded to trial on the issues thus raised.\\nThe plaintiff introduced in evidence as an exhibit the quitclaim deed from the County. She also obtained a stipulation from Salt Lake City that a certificate of sale had been issued on this property. Upon this showing she rested her case. After the City had offered evidence designed to show various defects in the plaintiff's tax title, the court entered a judgment of no cause of action. Whereupon the plaintiff prosecuted this appeal.\\nBut two questions are necessary to a determination of this appeal: (1) Was plaintiff's proof sufficient to show that she had acquired a valid tax title; and (2) if not, did she nevertheless acquire by this deed a lien on the property which she could foreclose in this proceeding?\\nBoth of these questions must be answered in the negative. It has long been held in this jurisdiction that one who relies on a tax title must show that all of the requirements of the law were complied with in the issuance of that tax title. Asper v. Moon, 24 Utah 241, 67 P. 409; Bean v. Fairbanks, 46 Utah 513, 151 P. 338; Bolognese v. Anderson, 87 Utah 450, 44 P. 2d 706.\\nThe plaintiff apparently proceeded on the theory that the stipulation that a certificate of sale had been issued would be prima facie evidence of the regularity of all proceedings up to the issuance of said certificate. 80-10-85, U. C. A. 1943, which was in effect at the time of the trial, provides that a duly certified \\\"copy of the record of any tax sale\\\" is\\n\\\"prima facie evidence of the facts therein shown, and the regularity of all proceedings connected with the assessment, valuation, notice, equalization, levies, tax notices, advertisement and sale of property therein described, and the burden of showing any irregularity in any of the proceedings resulting in the sale of property for the nonpayment of delinquent taxes shall be on him who asserts it.\\\"\\nIt is doubtful that the stipulation that a certificate of sale was issued without stating by whom or to whom issued, whether it was duly certified, etc., would be the equivalent of introducing in evidence a certified copy of the tax sale record. And even if the stipulation were sufficient to show, prima facie, the regularity of all proceedings up to the issuance of the tax sale certificate, plaintiff has still failed in her proof for she has not made any showing as to the subsequent proceedings.\\nPlaintiff contends that the quitclaim deed from the county was prima facie evidence that all proceedings subsequent to the issuance of the certificate of sale were regular. But there is no statute giving it this effect. 80-10-66, R. S. U. 1933, prior to the 1939 amendment (L. '39, Ch. 101) provided that the deed issued by the county auditor at the end of the four-year redemption period, would, when duly executed and delivered, be prima facie evidence of the facts recited therein. But the deed relied upon by the plaintiff is clearly not the deed referred to by 80-10-66. In fact, this deed from the county specifically recites that it was issued pursuant to the authority granted by 80-10-68. It was issued prior to the effective date of the 1939 amendment to 80-10-68 (L. '39, Ch. 101) which amendment authorized the issuance of a new form of tax deed and made this new tax deed prima facie evidence of the regularity of all proceedings subsequent to the preliminary sale. See 80-10-68 (5), U. C. A. 1943. The deed introduced by the plaintiff was a quitclaim deed. It was not the deed authorized by 80-10-68 as amended in 1939, nor did it purport to be for this amendment did not thke effect until some three months after the deed was issued to the plaintiff. The deed introduced by the plaintiff is not prima facie evidence of the regularity of the proceedings subsequent to the issuance of the certificate of sale. Many of the proceedings between the preliminary sale and the issuance of a quitclaim deed from the county after the May sale are of vital importance. The plaintiff's proof failed to show any of these subsequent steps. In the light of such failure in proof we must hold that plaintiff did not make out a prima facie case of title in herself. It thus becomes unnecessary to discuss the claimed defects in title which were put in issue by the defendant's proof.\\nThe plaintiff's second contention is that even if by the purchase of the tax deed she did not acquire a valid tax title, she nevertheless has a lien which she can foreclose in this proceeding. Plaintiff's argument in this regard is briefly: That 80-10-3, U. C. A. 1943, makes \\\"Every tax upon real property\\\" a lien \\\"against the property assessed.\\\" That this lien according to the holding of this court in Fisher v. Wright, 101 Utah 469, 123 P. 2d 703, is extinguished or merged with legal title in event there is a valid sale of this property to the county, but that in event the sale to the County is invalid the County still has a lien which it could foreclose. Plaintiff contends that 80-10-1, which provides that: refers only to the removal of the lien on \\\"personal\\\" property. Thus she contends, there is no\\u00a1 provision in the statute providing for the removal of the lien which by virtue of 80-10-3 attaches to real property. This latter lien, she argues, remains until a valid sale is made to the county or until it is foreclosed. Plaintiff then concludes that the County still had a lien at the time the quitclaim deed was delivered to her; that this quitclaim deed assigned the County's lien to her; and that she can foreclose this lien which had been given by statute to the County. This appears from her contention that she was \\\"entitled to have her lien established on the property and the property sold to satisfy the lien and all proceeds in excess of the amount necessary to satisfy the lien\\\" distributed to the defendants who establish their claims.\\n\\\"Every tax has the effect of a judgment against the person and every lien created by this title has the force and effect of an execution duly levied against all personal property of the delinquent. The judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.\\\"\\nIn this the plaintiff is in error. We seriously doubt in any event that the plaintiff could turn this action to quiet title into an action to foreclose a lien, but we lay aside this procedural question and turn to the merits of plaintiff's argument. As already pointed out, it is doubtful that the stipulation that a certificate of sale had been issued is sufficient to show a valid levy and assessment, and a valid lien will not arise from an invalid levy and assessment. Although it may be that when a tax is subsequently properly levied the lien may relate back to the 1st day of January of the year in which the proper levy should have been made. Second, if the stipulation were sufficient to make prima facie showing of regularity up to the sale to the County, it would be sufficient to show that the County got valid title, which, under the holding of Fisher v. Wright, supra, would merge the County's lien with its title. Third, even if we disregard this dilemma and assume that the County had a valid lien at the time it executed and delivered the quitclaim deed to the plaintiff, such quitclaim deed could not be held to have been an assignment of said lien. In Sorensen v. Bills, 70 Utah 509, 261 P. 450, 452, in holding that the County's lien for delinquent taxes could not be assigned we stated:\\n\\\"Millard county has at best only a lien for the unpaid delinquent taxes assessed against the premises after the date of the redemption in 1919. No authority is found in the statutes authorizing the commissioners, or any county official, to assign a lien given to the municipality by virtue of taxes levied. The general rule applicable is stated in Black on Tax Title (2d Ed.) \\u00a7 151, as follows: 'Thus, unless they (the taxes) are expressly and by plain implication authorized to be assigned legally or equitably, they are incapable of assignment, and no one can be subrogated to the rights and remedies of the state or muncipality.' \\\"\\nThe lien which is given to the County is a right to resort to the property for the tax debt, but where the tax debt is paid by a sale to a private purchaser, the debt is paid and the right to resort to the property is gone. There is no right to resort to the property for a reimbursement of the purchase price paid to the County. The statute gives no such right nor does the law. The principle of caveat emptor applies. See concurring opinion in Fisher v. Wright, supra.\\nThe judgment of the lower court was correct. It must be and is hereby affirmed. Costs to the respondents.\\nMcDONOUGH, WADE, and MOFFAT, JJ., concur.\"}"
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diff --git a/utah/8868243.json b/utah/8868243.json
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+"{\"id\": \"8868243\", \"name\": \"JORDAN v. MADSEN et al.\", \"name_abbreviation\": \"Jordan v. Madsen\", \"decision_date\": \"1926-12-30\", \"docket_number\": \"No. 4463\", \"first_page\": \"112\", \"last_page\": \"122\", \"citations\": \"69 Utah 112\", \"volume\": \"69\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:25:34.428841+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIDEON, C. J., and THURMAN and FRICK, JJ., concur.\", \"parties\": \"JORDAN v. MADSEN et al.\", \"head_matter\": \"JORDAN v. MADSEN et al.\\nNo. 4463.\\nDecided December 30, 1926.\\n(252 P. 570.)\\nEdwin D. Hatch, of Heber City, for appellant.\\nBen E. Roberts, of Salt Lake City, for respondents.\", \"word_count\": \"3244\", \"char_count\": \"18057\", \"text\": \"STRAUP, J.\\nThis case went off on a demurrer to the complaint containing three causes. Jordan, the plaintiff, appeals. The substance of the first cause is that the defendant Superior Motor Company was a corporation having offices at Salt Lake City and Provo and a branch office at Heber City and was engaged in the business of .selling automobiles; that defendant Madsen was the salesman and agent of the company and was authorized to receive in part payment of cars to be sold by him old and used cars of prospective buyers and to fix and determine the value to be allowed and given by the company for such old and used cars as might be received in part payment of new cars to be sold; that on October 5, 1925, at Heber City, the plaintiff, and. Madsen in his capacity as salesman, entered into the following contract in duplicate:\\n\\\"Superior Motor Company,\\n\\\"42-46 West 4th South Street, Salt Lake City, Utah,\\n\\\"Phone Wasatch 3638.\\n\\\"Retail Car Contract.\\n\\\"October 5, 1925.\\n\\\"To Superior Motor Co.:\\n\\\"Please enter the order of the undersigned for one model 1926, type coach or coupe, make Jewett, chassis No.Spring delivery. To be delivered on or about spring, 1926 (barring delays in transportation or other causes beyond our control), according to the regular specifications of said model and type.\\n\\\"It is agreed that there are no understandings or representations, express or implied, not specified herein. The guaranty of this sale is that which the factory gives in its printed catalogue, and the un dersigned expressly agrees that no claim will be made except as specially provided for in this contract. It is also understood that customers' cars are driven by employees of the seller at the customer's own risk.\\nPrice subject to change without notice.\\nPrice of car f. o. b. Salt Lake City.\\nEquipment optional.\\nExchange car allowance, consigned for . -W\\nCash and note total.\\nCash on delivery . -W\\nAmount of note balance.months . \\u2022&$\\n\\\"Used Car Record.\\n\\\"Make, Jewett; type, coupe; model 1924.\\n\\\"Chassis No. 107814; motor No. 718572; model 1924.\\n\\\"Which used car I or we hereby assign, transfer, sell, and deliver to the Superior Motor Company or its order free and clear of any and all incumbrances.\\n\\\"Terms of sale are $.on signing of contract, receipt whereof is hereby acknowledged, balance when delivery of car is made.\\n\\\"Remarks: $500.00 to be paid to J. W. Jordan, the purchaser, when his Jewett coupe is sold; balance of $400 to be left with company as deposit and payment on new car to be delivered in spring, 1926.\\n\\\"Purchaser: J. W. Jordan.\\n\\\"Shirley Madsen, Salesman.\\n\\\"Not valid unless countersigned by manager or sales manager.\\n\\\"Address: .\\n\\\".Manager.\\\"\\nIt is further alleged that at the time of entering into the contract Madsen by phone communicated with the sales manager of the company, who approved the contract; that the plaintiff continued in the possession of the old car mentioned in the contract until December 8, 1925, when an employee and agent of the company got the car from the plain tiff at Heber City and drove and delivered it to the comp.any at Salt Lake City; and that the car then was in first class and serviceable condition and ready for immediate use, that between December 3, 1925, and January 1, 1926, the plaintiff at Heber City by telephone inquired of the company at Salt Lake City what was being done with relation to the car, and that the company acknowledged possession of it and reported that it was endeavoring to dispose of it; that on January 4, 1926, the manager of the company wrote plaintiff stating, \\\"that the said company could not perform the contract as herein set forth and wherein an offer of not to exceed $750 was made for the car so taken from the plaintiff as aforesaid, said $750' to be all retained by said company and applied upon the purchase price of a new car to be selected by plaintiff and being handled and sold by said company; that, upon receipt of said letter aforesaid, the plaintiff, still .believing that the said company would perhaps perform as agreed, demanded of said company, in writing, that they confirm and reaffirm their said contract aforeherein set forth, within five days, or that the plaintiff would deem their failure so to do ,a complete breach of said contract; that the said company, on the 7th day of January, 1925, by letter addressed to the attorney for plaintiff, refused to carry out the said contract\\\"; and that no offer was made by the company to return the car to plaintiff, but that it retained and still retains the possession and control of it.\\nIt further is alleged that few if any of the retail car contracts entered into by the company or by its salesmen are countersigned by the manager of the company, and that the general practice and course of dealings of the company was under contracts such as heretofore shown, by the signing of them by the salesmen for and on behalf of the company, and that a branch office was maintained at Heber City in charge of a regular salesman, who placed values upon used cars, taking the same in on trade for other cars, and led people of Heber City and vicinity to believe that the salesman had authority to value and trade for used cars, and that the values set 'by the salesman of the company were accepted by the company; that the plaintiff relied upon the authority of Madsen in the premises and upon such reliance entered into the contract; and that the reasonable market value of the old car received by the company from the plaintiff was not less than $900.\\nFor a second cause of action the plaintiff repeated much that is contained in the first cause of action, and in addition thereto averred that the rental value of the old car at the time the company received it was not less than $10 per day. And for a third cause of action plaintiff again repeated much that is alleged in his first cause of action and further averred that by reason of the premises and the matters and things set forth in his complaint, the plaintiff was put to great expense and annoyance and compelled to employ counsel at an expense of $;150.\\nThe prayer of the complaint is that the plaintiff, on the first cause of action, recover the sum of $900, together with interest at the rate of 8 per cent per annum from December 3, 1925, until paid, on the second cause of action, the sum of $380 as rental for the car, and, on the third cause of action, $150' for attorney's fees.\\nThe defendants, Madsen and the company, filed a joint general demurrer to the first cause of action, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and a joint demurrer to the second and third causes of action on the grounds that neither cause stated facts sufficient to constitute a cause of action, and that the damages sought to be recovered therein were uncertain and too remote. The court sustained the demurrers, and upon the plaintiff's refusal to further plead dismissed the action.\\nFrom a written opinion filed by the court below, it seems that the demurrer as to the first cause of action was sustained on the theory that by the terms of the contract the company had merely undertaken \\\"to use its best efforts to sell the old car for $900,\\\" and, as the contract contained no time limit, it \\\"could be changed or revoked by either party\\\" at any time; as to the second cause, on the ground that by the contract the old car was intrusted to the company merely for sale and that there was no allegation of any demand 'by the plaintiff for its return; and as to the third cause, on the ground that, since the contract did not provide for an attorney's fee and none in such case provided by statute, no recovery could be had therefor.\\nWe think the ruling as to the third cause should be affirmed. If the plaintiff is entitled to recover on the first cause of action on the theory of a breach of the contract, as seems to be the theory on which that cause proceeds, he is not entitled to recover also for the reasonable rental value or use of the car. He cannot have both. We thus look to the sufficiency of the allegations of the first cause. The gist of it is to recover damages for a breach of contract \\u2014 to recover what the plaintiff lost by the company's repudiation of the contract and its refusal to carry it out. The contract is fully set up in the complaint, to which reference has already been made. The execution or affirmance of it by all parties sought to be charged is sufficiently averred. The case did not go off on the theory that the contract was not a subsisting contract as to all of the parties. Looking at the whole and not merely at a part of it, its essential features are that the plaintiff on October 5, 1925, gave an order to the company for or agreed to purchase a new Jewett car to be delivered in the spring of 1926, and that he, as a part of the purchase price, was to have an exchange car allowance of $900 on an old Jewett car, model 1924, which he assigned, transferred, and delivered over to the company; that $500 of such allowance was to be paid plaintiff when the old car was sold and the balance of $400 to be retained by the company and applied on the purchase price of a new car. In accordance with the contract the company at Salt Lake City, on December 3, 1925, sent an agent to Heber City and there received and took possession of the old car and drove it to Salt Lake City and there ever since retained control and pbs- session of it. But on January 4, 1926, the company in writing declared that it could not perform the contract on its part, and made a new offer of \\\"not to exceed $750 for the old car,\\\" and to retain and apply the whole thereof on the purchase price of a new car, which offer the plaintiff rejected and insisted that the company carry out the original contract, and notified the company that upon its refusal or failure to do so he would deem such failure a breach of the contract, and on January 7, 1926, the company notified plaintiff that it \\\"refused to carry out\\\" the- contract. Thus, whatever the terms of the contract may be, or whatever legal effect may be given it, there is alleged a clear repudiation of it by the company and its refusal to go on with it, a proposed material modification of it by the company and a rejection thereof by the plaintiff, and upon such rejection a further and continued refusal by the company to carry out the original contract.\\nIt, of course, is well settled that a renunciation or repudiation of a contract by one party before the time fixed for performance constitutes a breach and gives an immediate right of action to the adverse party. 5 Page on Contracts, \\u00a7 2885; 13 C. J. 651. It also is well settled that if one of the parties to a contract notifies the other that he will not perform unless such other assents to a material modification cation of the contract, or by the addition of new terms, such conduct amounts to a renunciation of the contract. 5 Page on Contracts, \\u00a7 2904. The breach here as alleged operated as a discharge of the contract, which gave the plaintiff, who was not in default, the right to ignore the contract as a basis of his rights and to sue as he did in quasi contract to recover reasonable compensation for what he furnished in partial performance of the contract (5 Page on Contracts \\u00a7 3028) \\u2014 here the value of his old car, alleged to be $900. The renunciation discharged the plaintiff from further performance. 5 Page, \\u00a72883; 13 C. J. 653.\\nThe trial court viewed the matter as though the company had received the old car only on consignment and that it was under obligation only to use its best efforts to sell the car for $900, which provision of the contract could at any time foe revoked by either party without affecting other parts of the contract. Seemingly such view was based on the words of the contract, \\\"exchange car allowanee, anee, consigned for $900,\\\" and upon the provision that $500 was to foe paid plaintiff when the old car was sold and the balance of $400 to be applied on the purchase price of a new car. In ascertaining the intention of the parties, the contract must foe looked at as a whole, not merely at a part of it, and in connection with the subject-matters contained in the contract and with respect to which the parties contracted. When so considered there is an expressed intention of something more than a mere consignment of the old car. Even looking alone at the words, \\\"exchange car allowance, consigned for $900,\\\" the words \\\"exchange car allowance\\\" are as significant as the word \\\"consigned\\\"; and when considered in connection with the other clause in the contract, \\\"which used car I or we hereby assign, transfer, sell, and deliver to the Superior Motor Company or its order,\\\" there is manifested an intention of something more than a mere consignment. As is seen, the dominant factor or subject-matter of the contract is the purchase of a new car by the plaintiff from the company, and in part consideration thereof the plaintiff was to be given an exchange allowance on his old car in the sum of $900.\\nWe think the case of Trowbridge v. Jefferson Auto Co., 92 Conn. 569, 103 A. 843, is in point. There by the contract the company had agreed to allow the purchaser $400 on an old car to be applied on the purchase price of a new car. After the old car was delivered to and accepted by the company it notified the purchaser that it could allow only $250 on the old car, claiming that the old car was worth only $250 and that unless the purchaser agreed to such an allowance the company would not carry out the contract, and notified the purchaser to come and get the old car.- The purchaser declined to accept the new offer, sued the company, and was permitted to recover for breach of contract. The court there, among other things, held that a valid contract could not he abrogated or modified unless both parties assented thereto; that where a party to a contract, when the other is not in default, manifests in Unequivocal language his intention not to perform the contract unless it is modified he thereby breaches the contract' and becomes liable therefor; and where a purchaser traded his old automobile at a fixed price for a new one, the difference to be paid to the company in cash when notified that the new car was ready, and the company asserted it would not deliver the new car unless the credit for the old one was reduced, the purchaser was excused from making tender of the balance.\\nThough it should be assumed that the contract, as to whether the allowance on the old car was for $900 or whether it was merely consigned to be sold for $900, is somewhat ambiguous, yet, if the ambiguity was one created by the company and not the plaintiff in preparing and drafting the contract, the ambiguity, on the demurrer at least, ought to be resolved against the company and not the plaintiff, unless the ambiguity is such as to be incurable, which on the face of it does not so appear.\\nThough it be further assumed that the old car was merely consigned to the company for sale, yet the terms thereof were for $900, not $750. Looking at the allegations of the complaint, not anything is alleged that the company claimed that it had used diligence to sell the car for $900 but was unable to do so, or that the best, obtainable price was only $750. What is alleged in the complaint is not that, but this: That the company in writing notified the plaintiff \\\"that the said company could not perform the contract as herein set forth,\\\" and made a new offer of not to exceed $750 \\\"for the car so taken from the plaintiff as aforesaid, said $750 to be all retained by said company and applied upon the purchase price of a new car\\\" (an offer not to sell or to use reasonable efforts to sell the car for $750 but a fixed allowance not to exceed $750), and on plaintiff's rejection of the offer the company in writing again \\\"refused to carry out said contract,\\\" and made no offer to return or surrender the old car, 'but retained possession and control of it. Such allegations, considered in connection with the contract itself, are inconsistent with the views entertained and expressed 'by the trial court and upon which the demurrer was ruled, and, as already observed, whatever the terms or legal effect of the contract may be, the company, as alleged in the complaint, repudiated it and refused to go on with it unless the plaintiff accepted a new offer of a fixed allowance not to exceed $750 for the old car and agreed to apply the whole thereof on the purchase price of a new car. We therefore are of the opinion that the demurrer as to the first cause of action was erroneously sustained.\\nThe judgment of the court below is therefore reversed and the cause remanded, with directions that the action 'be reinstated, the demurrer to the first cause of action overruled, and the defendants given ten days or such further time as the court may be advised to answer the complaint. Costs to the appellant.\\nGIDEON, C. J., and THURMAN and FRICK, JJ., concur.\"}"
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+"{\"id\": \"8868327\", \"name\": \"HANSON et al. v. MUTUAL FINANCE CORPORATION et al.\", \"name_abbreviation\": \"Hanson v. Mutual Finance Corp.\", \"decision_date\": \"1934-11-14\", \"docket_number\": \"No. 5451\", \"first_page\": \"579\", \"last_page\": \"587\", \"citations\": \"84 Utah 579\", \"volume\": \"84\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:15:18.954219+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\", \"parties\": \"HANSON et al. v. MUTUAL FINANCE CORPORATION et al.\", \"head_matter\": \"HANSON et al. v. MUTUAL FINANCE CORPORATION et al.\\nNo. 5451.\\nDecided November 14, 1934.\\n(37 P. [2d] 782.)\\nR. O. Pearce, of Salt Lake City, for appellants.\\nA. H. Hougaard, of Salt Lake City, for respondents.\", \"word_count\": \"2527\", \"char_count\": \"15156\", \"text\": \"MOFFAT, Justice.\\nThis is a civil action brought in equity and tried to the court, sitting with a jury advisory to the court upon the issues of fact. The plaintiffs in their complaint alleged in substance: That they were the owners of certain building and loan certificates in the National Building & Loan Association and in the Western Loan & Building Association of certain paid-up values aggregating about $2,500; that the defendant J. Frank Jackson called at the home of plaintiffs in Hiawatha, Carbon county, Utah, and stated to them that he had an investment proposition which afforded a better rate of interest and with greater security than the stock in the 'building and loan companies; that said J. Frank Jackson fraudulently and wrongfully, and with the purpose and intention of inducing the plaintiffs to part with their building and loan certificates, represented that the certificates of stock which he proposed to sell to them in the Mutual Finance Corporation would pay a guaranteed rate of interest, and would pay to the plaintiffs at any time demanded the full payment of any money invested in the said corporation; that the plaintiffs could at any time borrow 90 per cent of the full amount of their investment in the Mutual Finance Corporation; that the moneys represented by plaintiffs' investment in the National Building & Loan Association and the Western Loan & Building Association would not be paid back to them in a lump sum, but that said money would be returned in installments as said building and loan associations saw fit and in the discretion of said associations. Other and more detailed allegations are made in plaintiffs' complaint not necessary to repeat here, as the material issues of fact were submitted by the court to the jury, which questions and answers will further be referred to.\\nTo the complaint, the defendants filed separate answers. The Western Loan & Building Association and the National Building & Loan Association, being mere stakeholders, limited the parties and issues to plaintiffs and defendant Mutual Finance Corporation and its agent J. Frank Jackson. Upon' the issues, evidence was presented, and the jury was instructed. In connection with the instructions, the jury was directed to make answer to certain specific interroga tories relating1 to the facts. Each interrogatory, except the tenth, consists of a series of three questions designated (a), (b), and (c), and are as follows, with the answers thereto made by the jury:\\n\\\"Interrogatory No. 1:\\n\\\" (a) Did the defendant, J. Frank Jackson, on or about the 25th day of September, 1931, state to the plaintiffs, or either of the plaintiffs, in substance and effect that the certificates of stock which said J. Frank Jackson proposed to sell to said plaintiffs in the Mutual Finance Corporation would pay a guaranteed rate of interest of 7 percent? Answer: Yes.\\n\\\"(b) Was the said statement untrue? Answer: Yes.\\n\\\"(c) Was the same made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 2:\\n\\\"(a) Did the defendant, J. Frank Jackson, on or about the 25th day of September, 1931, state in substance and effect to the plaintiffs that the Mutual Finance Corporation would pay to the plaintiffs, and that the plaintiffs could at any time secure from said corporation the full payment of any money invested in the said corporation? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(e) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 3:\\n\\\" (a) Did the defendant, J. Frank Jackson, on or about the 25th day of September, 1931, state to the plaintiffs, or either of them, in substance and effect that said plaintiffs could at any time borrow 90 per cent of the full amount of their investment in the Mutual Finance Corporation? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 4:\\n\\\" (a) Did the defendant, J. Frank Jackson, on or about the 25th day of September, 1931, state to the plaintiffs, or either of them, in substance and effect that the monies represented by these certificates in the National Building & Loan Association and the Western Loan & Building Association would not be paid back to said plaintiffs in a lump sum, but that said money would be returned in installments as said building and loan associations saw fit and in the discretion of said associations? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(e) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 5:\\n\\\"(a) Did the defendant, J. Frank Jackson, on or about the 13th day of October, 1931, state to the plaintiffs in substance and effect that the certificates of stock which said J. Frank Jackson proposed to sell to the plaintiffs in the Mutual Finance Corporation would pay a guaranteed rate of interest of seven percent upon the amount of money paid for said stock? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 6:\\n\\\"(a) Did the defendant, J. Frank Jackson, on or about the 13th day of October, 1931, state in substance and effect to the plaintiffs that said plaintiffs or James L. Oviatt could at any time secure the full payment of any monies invested in said corporation, and that the said corporation would repay to said plaintiffs the full amount of their investment at any time? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 7:\\n\\\"(a) Did the defendant, J. Frank Jackson, on or about the 13th day of October, 1931, state in substance and effect to the plaintiffs that the plaintiffs could at any time borrow ninety per cent of the full amount of their investment in the Mutual Finance Corporation? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 8:\\n\\\"(a) Did the defendant, J. Frank Jackson, on or about the 13th day of October, 1931, state to the plaintiffs in substance and effect that the monies represented by the certificates in the National Building & Loan Association and the Western Loan & Building Association would not be paid back to the plaintiffs in a lump sum, but that said money would be returned in small amounts as the said building and loan associations saw fit and in the discretion of said associations? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 9:\\n\\\"(a) Did the defendant J. Frank Jackson, on or about the 13th day of October, 1931, state to the plaintiffs in substance and effect with respect to the certificate in the National Building & Loan Association standing in the name of James L. Oviatt, that the Mutual Finance Corporation would at the end of four or five years pay the full sum of $2,000, except the sum of $108, and that from the date that the Mutual Finance Corporation took over the building and loan certificates it would not be necessary for the plaintiffs or James L. Oviatt to pay anything further on said stock? Answer: Yes.\\n\\\"(b) Was said statement untrue? Answer: Yes.\\n\\\"(c) Was said statement made for the purpose of inducing! the plaintiffs to purchase stock in the Mutual Finance Corporation? Answer: Yes.\\n\\\"Interrogatory No. 10:\\n\\\"Do you find from a preponderance of the evidence in this case that the plaintiffs were the owners of the certificate in said National Building' & Loan Association standing in the name of James L. Oviatt? Answer: Yes.\\nIt is conceded that defendant J. Frank Jackson acted as the agent of the defendant Mutual Finance Corporation. The appeal to this court is on the part of these two defendants.\\nCounsel for appellants in his brief states that assignments of error numbered from 2 to 16, inclusive, may be argued together because all of those assignments relate to the proposition that the findings of fact are not supported by the evidence. No other assignments are argued. The issues are therefore reduced to a single question: Does the evidence support the findings? The gravamen of the action is fraud. The special interrogatories and answers were aimed directly at that issue. The court adopted the determinations of fact as found by the jury, and the findings of fact made by the court, except as to details not affecting the fundamental issues or rights of the parties, are based upon those facts found by the jury.\\nThere is no dispute as to the rule of law applicable to this case. The burden of proving the alleged fraud or deceit, where deeds or contracts are sought to be set aside upon such ground, is upon the party asserting it, and the fraud or deceit must be established by clear and convincing evidence. Ferrell v. Wiswell, 45 Utah 202, 143 P. 582; Lane v. Peterson, 68 Utah 585, 251 P. 374.\\nDid the trial court require plaintiffs' evidence to measure up to this rule and apply the same when the findings were made? The situation is therefore presented requiring this court to examine the evidence. In view that the findings are long and that the transcript of the record contains over four hundred pages, all of which have been carefully read, it presents a situation making it impractical to give more than a brief summary of either. It is, however, pertinent to say that the transcript of the evidence shows a conflict. The record discloses that prior to the alleged fraudulent representations plaintiffs were the owners of certain savings certificates, some partially paid and some fully paid, and that a son-in-law of plaintiffs was also the owner of a certificate which had been assigned to plaintiffs. No separate issue is made as to that certificate.\\nIt appears that on September 25, 1931, the defendant J. Frank Jackson, a sales representative of the defendant Mutual Finance Corporation, called at the home of plaintiffs in Hiawatha, Utah. Plaintiffs and their witnesses testified in subsance: That Mr. Jackson said to plaintiffs that he had a good business proposition to present to them. That Mr. Hanson told' Jackson that they had no money to invest. The subject of building and loan certificates was discussed. Jackson asked after examining them if they would exchange their building and loan certificates. That he told them he could give them a better layout and a better per cent on their money. Jackson was then told that the Hansons were well satisfied with their building and loan certificates, but, if they could get more money and a better rate of interest, they might consider such a proposition; but that they would not except they could exchange for the same kind of stock because the savings had been made and they wanted the money to build a home, and they wanted it in such form that they could get their money at any time. That Jackson promised them that his company would take their building and loan certificates and give them new certificates that would guarantee to pay 7 per cent interest. That they could get their money at any time or borrow 90 per cent of the face value of the certificates. Jackson took an assignment of plaintiffs' building and loan certificates, and caused to be issued and sent to plaintiffs certain shares of the common and preferred stock of the defendant Mutual Finance Corporation.\\nThis common and preferred stock had, in so far as the defendant Mutual Finance Corporation was concerned, no loan value. The preferred stock paid no dividends unless earned, and the common stock paid no dividends until after a dividend of 7 per cent had been paid on the preferred stock, which was not cumulative.\\nWithout further statement of the evidence, it must suffice to say that these conversations, and there were three of them, two after September 25th, took place in the presence of the plaintiffs and several other persons. The plaintiffs, their daughter, a son-in-law, and others testified for plaintiffs. Defendant Jackson and two others testified as to the defendants' version of what took place.\\nBy the state Constitution (art. 8, \\u00a7 9), this court is authorized to review the findings of the trial court in equity cases. The rule, however, prevails that the findings of the trial court -will not on conflicting evidence be set aside, unless it manifestly appears that the trial court has misapplied the facts proved or made findings against the weight of the evidence. Olivero v. Eleganti, 61 Utah 475, 214 P. 313; Jenkins v. Nicolas, 63 Utah 329, 226 P. 177; Bennett v. Bowen, 65 Utah 444, 238 P. 240.\\nCounsel for appellants argues that upon the evidence submitted, and especially that relating to the purchase of one share of stock in the Mutual Finance Corporation, before the conversations with Jackson, it was shown that the plaintiffs were in possession of such knowledge or were sufficiently put upon inquiry which if reasonably pursued would have enabled them to have determined the falsity of the representations made by Jackson. It is further argued that plaintiffs were negligent in not pursuing an investigation, and for that reason they cannot now be heard to complain or heard to say that they relied upon the misrepresentations made. The court found the certificates issued to plaintiffs in the Mutual Finance Corporation did not show upon the face thereof the representations made by Jackson, and thereupon, not knowing their rights as stockholders, except as represented by Jackson, made in quiry regarding the stock certificates, and ascertained the falsity of the representations made, and thereupon demanded return of their certificates surrendered to Jackson. This matter having been before the trial court, and that court having found against appellants' contention, the record containing sufficient to support the finding made and nothing to warrant this court in disturbing that finding, it should not be disturbed.\\nAfter a careful consideration following a complete review of the case upon the whole record and the evidence touching the issues herein, we have found no ground for, nor would we be warranted in, interfering with the findings or judgment of the trial court.\\nThe judgment of the trial court is affirmed; respondents to recover costs on appeal. Such is the order.\\nSTRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\"}"
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+"{\"id\": \"8869019\", \"name\": \"PICKERING v. INDUSTRIAL COMMISSION OF UTAH\", \"name_abbreviation\": \"Pickering v. Industrial Commission\", \"decision_date\": \"1921-11-07\", \"docket_number\": \"No. 3708\", \"first_page\": \"35\", \"last_page\": \"38\", \"citations\": \"59 Utah 35\", \"volume\": \"59\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:51:26.056664+00:00\", \"provenance\": \"CAP\", \"judges\": \"WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.\", \"parties\": \"PICKERING v. INDUSTRIAL COMMISSION OF UTAH.\", \"head_matter\": \"PICKERING v. INDUSTRIAL COMMISSION OF UTAH.\\nNo. 3708.\\nDecided November 7, 1921.\\n(201 Pac. 1029.)\\n1. MASTER AND SERVANT \\u2014 COMPENSATION RECOVERABLE FOR INJURIES\\nOccurring in Another State. Under the Industrial Commission Act (Comp. Daws 1917, \\u00a7 3126), which, provides that a workman hired within the state, who receives injury in employment outside of the state, is entitled to compensation, a resident of the state who was employed by a copartnership 'engaged in the contracting business within the state, but was thereafter sent by them to take charge of work in another state, is entitled to compensation for injuries received in the course of his employment in the other state, though the employer had taken out insurance against such injuries under the Compensation Act of that state.\\n2. Constitutional Daw \\u2014 Courts not Concerned with the Wisdom of Statutes. If the constitutionality of the provision of the Industrial Commission Act, giving it extra-territorial effect by authorizing compensation for injuries received outside the state, is not attacked, the courts are not concerned with the wisdom of the Legislature in giving its provisions such effect.\\nProceedings under tbe Workmen\\u2019s Compensation Act (Comp. Laws 1917, \\u00a7\\u00a7 3061-3165, by L. B. Pickering, as employe, to: recover compensation for injuries while i\\u00f1 the employ of Pickering Bros., a copartnership. From a decision of the Industrial Commission denying compensation, the em-ploy\\u00e9 brings the proceedings before the court for review.\\nDECISION VACATED.\\nPierce, Critchlow & Marr, of Salt Lake City, for plaintiff.\\nH. E. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for defendant. '\", \"word_count\": \"1173\", \"char_count\": \"7234\", \"text\": \"CORFMAN, C. J.\\nPlaintiff commenced these proceedings May 18, 1921, as claimant before the defendant, Industrial Commission of Utah, to obtain compensation under the provisions of Chapter 100, Laws of Utah 1917, as amended by chapter 63, Laws of Utah 1919, commonly known as our Industrial Commission Act. Compensation was denied plaintiff by the Commission, and he has brought the proceedings here for review in the usual way and as provided that he may do under the provisions of said act.\\nIt appears that the plaintiff, a resident of Salt Lake City, Utah, was, some time prior to January 1, 1919, employed as an engineer and superintendent by Pickering Bros., a co-partnership engaged in a general contracting business. The Pickering brothers were also residents of Salt Lake City, where they employed the plaintiff, .and where they at all times maintained their place of business. Up until the year 1921, they took no contracts in outside states, but confined their operations exclusively in the performance of construction work awarded them in the carrying out of Utah projects, in which work the plaintiff had been continuously engaged in the ordinary duties of an engineer and superintendent until about March 1, 1921, when Pickering Bros, took a con tract for tbe construction of a public highway in the state of Colorado and placed the plaintiff in charge of said project as superintendent of the work to' be performed. While engaged in these duties, he became disabled in Colorado by reason of an accident arising out of and in the course of his said employment, for which he claims compensation. It further appears that Pickering Bros, carried compensation insurance in the Utah state insurance fund and also under the provisions of the Colorado Compensation Law for the protection of their employ\\u00e9s while operating in said state. ,\\nUpon the foregoing facts, which are not disputed, bur Commission by a majority decision refused to make an award.\\nAfter plaintiff applied for and was denied a rehearing, the case was brought here for review.\\nThe majority of the Commission seem to have taken the position, as reflected by their findings and decision, that to allow the plaintiff compensation under the facts and attending circumstances stated would be giving the provisions of our act an extraterritorial effect not contemplated by our Legislature. In part the decision reads:\\n\\\"The place of employment is not controlling in the question of jurisdiction, neither is the place of residence of the applicant, nor the place of the accident. The controlling element is to he found in the industries being developed. The jurisdiction in such cases must he the jurisdiction of the industry that is being promoted. In this case it is quite clear that Pickering Bros, wont beyond the jurisdiction of this Commission and engaged in employment not even remotely connected with Utah industry, that D. B. Pickering [plaintiff] was to initiate and carry to conclusion an enterprise exclusively within the state of Colorado, and that the employ\\u00e9s engaged in this particular employment were covered by the workmen's compensation insurance in the Southern Surety Company (Colorado), and for this reason the relief sought is hereby denied.\\\"\\nOur Industrial Commission Act, section 3126, Comp. Laws Utah 1917, without qualification, provides:\\n\\\"If a workman who has been hired in this state receives personal injury by accident arising out of and in the course of such employment, he shall be entitled to compensation according to the law of this state, even though such injury was received outside of this state.\\\"\\nUnder the admitted facts in this case, it would seem that the plaintiff here has met al the requirements of the foregoing provision of our statute. Although he received an injury outside of this state, he was hired in this State. Not only was he hired in this state, but he was a resident of Utah, employed in a business or enterprise being conducted in Utah and by Utah residents. The plain and express wording of our statute permits of no other construction or interpretation than that under the showing here made by the applicant, it was intended by our Legislature that the beneficent purposes of our act should be given extraterritorial effect and compensation allowed.\\nIt would appear from the expressions made 'in the majority opinion that the Commission h\\u00e1s not only disregarded the plain provisions of our statute in refusing to make an award, but that it has also misconceived the very purposes of the act, viz., to protect the employ\\u00e9 and those dependent upon him, so that in case of accident and injury they may not become subjects of public charity. Scranton Leasing Co. v. Industrial Commission of Utah, 51 Utah, 368, 170 Pac. 976; Chandler v. Industrial Commission of Utah et al., 55 Utah, 213, 184 Pac. 1020, 8 A. L. R. 930.\\nThe constitutioiiality or validity of the statute is not here -questioned. As a court we are not concerned with the wisdom of the Legislature in giving its provisions extraterritorial effect. That it did do in plain and unmistakable terms.\\nUnder the facts and circumstances disclosed by the record in this ease, we are of the opinion that the plaintiff is entitled to compensation, as in the act provided, and that the Commission, in not making an award, misconceived its jurisdiction.\\nIt is therefore ordered that the decision of the Commission denying the plaintiff cotapensation be, and the same is hereby, vacated and set aside. Plaintiff to recover costs.\\nWEBER, GIDEON, THURMAN, and FRICK, JJ., concur.\"}"
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+"{\"id\": \"8869052\", \"name\": \"UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"name_abbreviation\": \"Utah Apex Mining Co. v. Industrial Commission\", \"decision_date\": \"1926-03-12\", \"docket_number\": \"No. 4312\", \"first_page\": \"529\", \"last_page\": \"538\", \"citations\": \"66 Utah 529\", \"volume\": \"66\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:04:29.522050+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIDEON, C. J., and THURMAN, and FRICK, JJ., concur.\", \"parties\": \"UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"head_matter\": \"UTAH APEX MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al.\\nNo. 4312.\\nDecided March 12, 1926.\\n(244 P. 656.)\\nBagley, Judd & Bay, of Salt Lake City, for appellants.\\nHarvey H.Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for respondents.\", \"word_count\": \"3285\", \"char_count\": \"18563\", \"text\": \"CHERRY, J.\\nThis is a review of proceedings had before the Industrial Commission, under the Workmen's Compensation Act, relating to the award of compensation to alleged dependents of Elmer C. Williams, wlm died on May 12, 1924, as the result of an accident in the course of his employment by the Utah Apex Mining Company. On August 24, 1924, Sarah E. Williams, the mother of the deceased employee, claiming to be a dependent, made application for compensation. After a hearing an order was made on October 18, 1924, awarding her compensation as a partial dependent in the sum of $16 per week for not to exceed 90 weeks. Pursuant to this order the compensation awarded was paid to the mother for the period from the date of the employee's death to February 22, 1925. On March 3, 1925, Pearl Mitchell Williams, the wife of the deceased employee, appeared for the first time and applied to the commission for compensation, claiming to have been wholly dependent upon deceased at the time of his death. The former award to the mother was thereupon ordered suspended pending the hearing and determination of tbe wife's claim. After a bearing tbe commission made an order yacating tbe first award to tbe mother, and awarding compensation to tbe wife at tbe rate of $16 per week, dating from February 23, 1925, and to continue for a period of 262 weeks thereafter. It is sought by this proceeding to annul tbe order of tbe commission last made upon tbe grounds that there is not sufficient evidence to support tbe finding that tbe wife, to whom compensation was awarded, was dependent upon tbe deceased employee at the time of death. This is the sole question in dispute.\\n.The provisions of tbe act relating to tbe question under consideration are contained in Comp. Laws Utah 1917, \\u00a7' 3140, and are:\\n\\\"The following persons shall he presumed to he wholly dependent for support upon a deceased employe: (a) A wife upon a husband with whom she lives at the time of his death. In all other cases, the question of dependency, in whole or in part, shall he determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employe. \\\"\\nNo claim was made that tbe wife was living with tbe deceased employee at the time of bis death, but it was admitted that she bad lived separate and apart from him for more than two years nest preceding bis death. Tbe dependency of tbe wife was therefore not presumed by virtue of tbe relationship, but was to be determined \\\"in accordance with tbe facts existing at tbe time of tbe injury resulting in tbe death of such employe.\\\" And tbe burden of establishing dependency was upon tbe applicant. Utah Apex Min. Co. v. Ind. Com., 228 P. 1078, 64 Utah, 221. It is plainly deducible from the statute itself that dependency is not presumed from or established by tbe existence of tbe legal relation of tbe wife to tbe husband, unless they are living together, and when, as in this case, they were not living together, dependency is not established unless something tending to show dependency, in addition to tbe legal duty of tbe husband, is shown.\\nIn 28 R. C. L. 771, it is said:\\n\\\"The purpose of the statute is to provide the workman's dependent in future with something in substitution for what has been lost by the workman's death, and, consequently to establish dependency the applicant for compensation must show that he or she had reasonable grounds to anticipate future support from the decedent. This reasonable expectation of continuing or future support and maintenance seems to be the true criterion as to who are dependents.\\\"\\nAnd at page 773:\\n\\\"If the applicant for compensation is unaided by the statutory presumption of dependency, he must present proof of the fact. Among the principal indicia of the state of dependency may be mentioned the legal obligation of support; the fact that contributions have been made in the past; the fact that the applicant has taken some action in anticipation of future contributions, and the fact that the applicant has-no means of support in substitution for the anticipated contributions of the deceased. It is not to be understood, of course, that all of these elements must be proven in any particular case; but it will be true in a great majority of cases, though there will be well defined exceptions, that contribution in the past is an essential, as it is the most cogent, evidentiary fact in the proof of dependency. The legal obligation of support, when considered alone, will rarely, if ever, establish a state of dependency, or give rise to a presumption that a person is a dependent; but it may very well strengthen a weak inference arising from small or irregular contributions, or it may aid a promise of future support. Where it appears that the legal obligation had been neglected by the deceased immediately prior to his death, the issue of dependency must be resolved ordinarily with reference to the duration of the period of non-support. \\u2666 \\\"\\nIn cases where the employee upon whom the legal duty of support rests has deserted his dependents, and has wrongfully evaded or neglected his obligation to them, it is a proper inquiry whether the facts and circumstances warrant the reasonable probability that the legal obligation would have been enforced in future. And it can easily be supposed that when such reasonable probability exists, a state of dependency, under the statute, might be found.\\nIn the ease at bar, to establish her dependency upon .deceased, it was incumbent upon the applicant to show not only that deceased owed her that legal duty of support, but that there was a reasonable expectation that the duty would be fulfilled; in other words, that the legal obligation of support must be coupled with such other facts and circumstances as to warrant tbe reasonable probability that sucb obligation would be performed. Tbe commission baving ing found tbe fact of dependency in tbis case, that finding will not be disturbed by tbis court if there is competent evidence to support it. It remains to examine tbe record and to ascertain, as a matter of law, if it contains evidence supporting tbe ultimate fact that tbe applicant was a dependent of deceased at tbe time of bis death within the meaning of tbe statute.\\nThe facts as testified to by applicant are that she and deceased were married at Blaekfoot, Idaho, on October 29, 1918. She was then 15 years of age and be was 20. They lived together at Blaekfoot for two weeks, after which she says, \\\"I bad to go to work in order to get food and stuff and necessary things of life.\\\" Shortly thereafter she and her husband went to bis mother's ranch near Blaekfoot, where they lived for a short period, and where she testified that \\\"his mother was really supporting him.\\\" She then left him and went to live with her sister at Aberdeen, Idaho, \\\"because he didn't have the means to support me.\\\" She afterwards worked at Pocatello in the railroad shops and in confectionaries to support herself, and later went back to the ranch, where she lived with her husband \\\"the biggest part of that winter. He just did chores, and such as that. Just a little farming, not much.\\\" While on the ranch her husband gave her no money. \\\"All we got was what we ate and a place to sleep.\\\" In the spring he went to Salt Lake City and joined the army, and she went to Pocatello to work. In three or four months he visited her at Pocatello, and \\\"went back to the camps and stayed about another month, and then'he got out.\\\" Thereafter she and her husband again went to the ranch and stayed there for two weeks, at the end of which time they again separated. She went to Pocatello, where she stayed with her brother and worked at odd jobs until about the month of June, 1922, when she went to her mother at Morehead, Kan. She did not thereafter see her husband, wrote no letters to him, and received none from him, although she testified that she \\\"kept track of him\\\" through her sister. She remained in Kansas about two years, during which time she supported herself by canvassing. In the spring of 1924 she came from Kansas to Price, Utah, when she made no effort to locate her husband, to see him, or communicate with him. She supported herself by canvassing while at Price, and did not learn of her husband's death until three or four months after it occurred. She testified, and there was other proof to show, that about a year after her marriage some steps were taken towards obtaining a divorce for nonsupport, but that the matter was dismissed upon her husband's promise to support-her. She said that he did not keep his promise, that he did not try to get work, was lazy, and did not support himself; that the reason she was required to go to work was because he could not furnish her with the necessaries of life. She testified that she was able to and had earned about $15 per week by her own labor ever since her marriage, except during the short periods when she lived with her husband. She further stated that she wrote to her sister \\\"all the time asking about him,\\\" and to find out whether he was working, and that she would have gone back to live with him and demanded his support if he had been working; that her sister lost track of him when he came to Utah; and that she never knew he had been working in Utah until after his death.\\njMrs. Jennie Nelson, a sister of applicant, testified to the marriage of the applicant and deceased; that \\\"when he was able to maintain a home they were together, and when he wasn't they both worked;\\\" that when they were not together witness tried to keep track of the whereabouts of the husband as near as she could, with an idea of keeping them together; that her sister was willing to live with her husband and manifested a desire to go back to him; that when her sister went to Kansas she wrote to her telling her where her husband was located; that she never entirely lost track of the deceased, but did not learn of his death until two or three months thereafter, when she promptly notified his wife at Price.\\nThe foregoing is the sum of the evidence depended upon to support the finding of dependency. There was other uncontradicted evidence produced by the opposing side tend ing to show that the separation between deceased and his wife was permanent; that deceased had been employed on numerous occasions and for considerable periods after he had separated from his wife, at which times he had made substantial contributions for the support of his mother, that he contemplated a divorce from his wife and marriage with another woman.\\nBut, viewing the matter from the standpoint alone of the evidence adduced by the applicant wife, we look in vain for any fact or circumstance, other than the legal duty of deceased, to indicate that there was a reasonable probability that that duty would have been fulfilled, either voluntarily or involuntarily. On the contrary, the additional facts and circumstances elicited plainly tended against the probability of future support.\\nThe case as stated by the applicant presented three outstanding facts: First, that the parties were living separate and apart for a considerable period of time; second, that the husband during that period made no contribution whatever towards the support of his wife; and, third, that the wife was able to and did support herself. The natural presumption from these facts is against dependency. Of course that presumption might be overcome by proof explaining the separation and nonsupport as temporary, and indicating a mutual purpose and intent to live together again and be supported by the husband. But here the explanation, so far as given, indicates the very contrary. The facts and circumstances show that the separation occurred by reason of the neglect of the husband, which continued so long that the wife finally removed to a distant state and remained two years, during which time she did not see nor communicate with her husband or look to him for support, but supported herself by her own efforts. There was nothing in her conduct during this time from which it can be inferred that she entertained the least expectation of ever being supported by her husband. When she returned' to Utah before the death of her husband she lived independently upon her own earnings, and did nothing towards discovering her husband and reuniting with him or demanding that he support her.\\nIn this state of facts we are compelled to conclude that there was no proof, aside from the legal obligation of deceased, npon which to base the conclusion that there was a reasonable expectation of future support by the deceased. This conclusion is not opposed to what was said or decided in McGarry v. Ind. Com., which was twice before this court. 222 P. 592, 63 Utah, 81; 232 P. 1090, 64 Utah, 592, 39 A. L. R. 306. That case involved the claim of a minor child, seven years of age, whose father had deserted it, and left for parts unknown, and concealed his whereabouts and identity for two or three years and until his death. This court decided that it was further shown that the child was actually dependent; that the peculiar and exceptional circumstances present would support a finding that the child was a dependent of its father, within the meaning of the statute. The actual dependency of the child, its lack of legal capacity to assert or waive its legal right to support from its father, and the conduct of the father in concealing himself to avoid his legal duty are features which clearly distinguish that case from the one under review. In Utah Apex Min. Co. v. Ind. Com., 228 P. 1078, 64 Utah, 221, the claim of a wife to be adjudged a dependent was denied. The parties had lived apart for four years, during which time the husband had made no contributions to his wife's support. She testified, that her husband had left her, and that she did not expect him to come back or to support her or furnish her with any financial assistance. In each of the cases last cited there was present the legal obligation of support,- and the ultimate test in each case was the probability of future support.\\nIt follows that the finding that applicant was a dependent upon deceased at the time of his death must be set aside for lack of evidence to support it.\\nThe award is annulled.\\nGIDEON, C. J., and THURMAN, and FRICK, JJ., concur.\"}"
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+"{\"id\": \"8869136\", \"name\": \"JOHN C. DAVIS, Attorney at Law, for himself and all other duly licensed and active practicing attorneys and counselors at law, similarly situated, within the State of Utah, Plaintiff v. OGDEN CITY, UTAH, a Municipal Corporation, and CLYDE M. WEBBER, Ogden City Recorder, Defendants\", \"name_abbreviation\": \"Davis v. Ogden City\", \"decision_date\": \"1950-10-24\", \"docket_number\": \"No. 7241\", \"first_page\": \"401\", \"last_page\": \"415\", \"citations\": \"118 Utah 401\", \"volume\": \"118\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T02:13:20.244498+00:00\", \"provenance\": \"CAP\", \"judges\": \"PRATT, C. J., and WADE, J., dissent.\", \"parties\": \"JOHN C. DAVIS, Attorney at Law, for himself and all other duly licensed and active practicing attorneys and counselors at law, similarly situated, within the State of Utah, Plaintiff v. OGDEN CITY, UTAH, a Municipal Corporation, and CLYDE M. WEBBER, Ogden City Recorder, Defendants.\", \"head_matter\": \"JOHN C. DAVIS, Attorney at Law, for himself and all other duly licensed and active practicing attorneys and counselors at law, similarly situated, within the State of Utah, Plaintiff v. OGDEN CITY, UTAH, a Municipal Corporation, and CLYDE M. WEBBER, Ogden City Recorder, Defendants.\\nNo. 7241.\\nDecided Oct. 24, 1950.\\n(223 P. 2d 412.)\\nFor majority opinion, see 117 Utah, 315, 215 P. 2d 616.\\nL. 0. Thomas, Salt Lake City, Derrah B. Van Dyke, Stuart P. Dobbs, Ogden, for plaintiff.\\nGeorge S. Barker, Paul Thatcher, Ogden, for defendants.\\nGeorge A. Critchlow, Salt Lake City, George W. Worthen, Provo, amici curiae on petition for rehearing.\", \"word_count\": \"4602\", \"char_count\": \"26017\", \"text\": \"On Petition for Rehearing\\nRehearing denied.\\nPRATT, C. J., and WADE, J., dissent.\"}"
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+"{\"id\": \"8869421\", \"name\": \"SALTAS v. AFFLECK et al.\", \"name_abbreviation\": \"Saltas v. Affleck\", \"decision_date\": \"1940-09-05\", \"docket_number\": \"No. 6190\", \"first_page\": \"381\", \"last_page\": \"392\", \"citations\": \"99 Utah 381\", \"volume\": \"99\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:02:46.526368+00:00\", \"provenance\": \"CAP\", \"judges\": \"LARSON and PRATT, JJ., concur.\", \"parties\": \"SALTAS v. AFFLECK et al.\", \"head_matter\": \"SALTAS v. AFFLECK et al.\\nNo. 6190.\\nDecided September 5, 1940.\\n(105 P. 2d 176.)\\nRehearing Denied, January 11, 1941\\nGerald Irvine and Ralph T. Stewart, both of Salt Lake City, for appellant.\\nH. G. Metos and Samuel Bernstein, both of Salt Lake City, attorneys for respondent.\\nStewart, Stewart & Parkinson and E. B. Cannon, all of Salt Lake City, attorneys for defendant.\", \"word_count\": \"3354\", \"char_count\": \"19320\", \"text\": \"MOFFAT, Chief Justice.\\nSpero Saltas, thirty year old son of plaintiff and unmarried, died as a result of an accident, occurring January 27, 1938, at the intersection of Third Avenue and K Street in Salt Lake City, Utah. Deceased's father seeks to recover damages from Kenneth Butte for the death of Spero Saltas, alleged to have resulted from the negligence of the defendant.\\nDeceased was a guest passenger in a Ford automobile driven north on K Street by Gerald A. Frantz at the time of the accident. Kenneth Butte, the defendant, was driving a truck, westerly on Third Avenue. The two conveyances collided.\\nDefendant's answer denied negligence and alleged that the proximate cause of the collision was the negligence of Gerald A. Frantz, the driver of the Ford automobile in failing to yield the right of way to the truck entering the intersection from the right of the driver of the Ford; also excessive speed, and the failure of said driver to keep his automobile under proper control and in failing to observe the traffic upon the highway, and particularly the westbound traffic at the intersection.\\nThe issues of liability and damages were submitted to the jury. A verdict of $800 in favor of the plaintiff was returned by the jury. Plaintiff filed a motion for a new trial claiming inadequate damages, appearing to have been given under the influence of passion or prejudice. The court made a conditional order requiring the defendant to agree to an increase of the judgment to $2,400, otherwise a new trial would be granted.\\nDefendant refused to accede to the condition and filed a motion to set aside the conditional order. The motion was denied. A new trial was granted. Defendant objected to a retrial asserting the court had exceeded its jurisdiction and abused any discretion that might exist.\\nA second trial was had. A verdict in favor of the plaintiff in the sum of $3,061 was awarded. Defendant moved to set aside the second verdict and reinstate the first verdict of $800. The motion was denied. Defendant made a motion for a new trial. The motion was denied. Kenneth Butte appealed to this court.\\nThe errors relied upon by appellant as set out in his brief and argued are:\\n1. Abuse of discretion by the trial court in granting plaintiff's motion for a new trial.\\n2. Refusal to discharge the jury at the second trial on account of alleged prejudicial misconduct of plaintiff's counsel.\\n3. Improper instructions given to the jury and proper requested instructions denied.\\n4. Rulings on admissibility of evidence.\\nThe points raised will be considered in the order above set forth.\\n1. Did the court abuse its discretion in granting plaintiff's motion for a new trial?\\nSection 104-40-7, R. S. Utah 1933, provides:\\n\\\"The verdict of a jury may also be vacated and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties, when there has been such a plain disregard by the jury of the instructions of the court or the evidence in the case as to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice.\\\"\\nThe section contains no reference to granting a new trial because of excessiveness or inadequacy \\u00f3f the verdict. Ex-cessiveness or inadequacy of a verdict may be an element in consideration of the question of disregard of instructions or the evidence or misapprehension of instructions, or as tending to show the verdict was influenced by passion or prejudice. The court may not set up its opinion or judgment against that of the jury based upon the amount of the verdict alone unless the amount is so disproportionate as to justify the inference that the instructions or evidence were disregarded. The statute provides when the court may interfere. A new trial may be granted upon the court's own motion \\\"when there has been such a plain disregard by the jury of the instructions of the court or the evidence in the case as to satisfy the court that the verdict was rendered under a misapprehension of such instructions or under the influence of passion or prejudice.\\\"\\nPrior to granting the new trial and before taking the motion under advisement the court stated:\\n\\\"I am inclined to think at this time that the verdict is too low; I do not mean to say that I will find that it is too low; but the matter will he taken under advisement.\\\"\\nThe evidence discloses, in so far as it applies to the question of damages, that the deceased was a son of the plaintiff and about thirty years of age. The American Mortality Table indicates that the life expectancy of deceased at that age is thirty-five years and three months. The deceased was unmarried. The plaintiff is sixty years of age. His life expectancy was not shown. The deceased for long periods has aided in the support of his father and family of eight children, five of whom were at home. Other members of the family also contributed. It was shown that Paul, a brother of deceased and son of plaintiff, was earning $5 per day and Pete, another brother and son, was earning $8.65 per day and plaintiff was earning $4.25 per day. Spero, the deceased, was a machinist and had been earning $5.85 per day. He was looked to more than the others for support, payment of rent and general family maintenance during times of depression. The amount the plaintiff might have received from the deceased was speculative.\\nAs stated in the case of Hirabelli v. Daniels, 44 Utah 88, 138 P. 1172, and quoted with approval in the recent case of Chatelain v. Thackeray, 98 Utah 525, 100 P. 2d 191, 198:\\n\\\"We are slow to interfere with a ruling granting or refusing a new trial on questions relating to damages.\\\"\\nWhile we so stated, we also held that the amount of the verdict is a matter exclusively for the jury. On the ground of adequacy of the verdict alone, the court may not interfere with the jury's verdict. However, if inadequacy or excessiveness of the verdict presents a situation that such inadequacy or excessiveness shows a disregard by the jury of the evidence or the instructions of the court as to the law applicable to the case as to satisfy the court that the verdict was rendered under such disregard or misapprehension of the evidence or instructions or under the influence of passion or prejudice then the court may exercise its discretion in the interest of justice and grant a new trial. It may be that a verdict small in amount or large in amount is clearly the result of passion or prejudice. It is seldom that the amount of the verdict standing alone is so inadequate or excessive as to indicate passion or prejudice. Miller v. Southern Pacific Co., 82 Utah 46, 21 P. 2d 865. In order to eliminate speculation as to the basis of the exercise of judicial discretion in granting new trials, the record should show the reasons and make it clear the court is not invading the province of the jury. The trial court should indicate wherein there was a plain disregard by the jury of the instructions of the court or the evidence or what constituted bias or prejudice on the part of the jury. If no reasons need be given the province of the jury may be invaded at will. With no indication as to the basis for exercise of the power vested in the court to grant new trials the appeal tribunal would be left to analyze the matter from the evidence, the record, and the instructions. It would be required to search out possible reasons for agreeing or disagreeing with the trial court in the exercise of a discretion. The exercise of a judicial discretion must be based upon some facts notwithstanding great latitude is accorded the trial court in such matter. Klinge v. Southern Pacific Co., 89 Utah 284, 57 P. 2d 367, 105 A. L. R. 204.\\nWe conclude that the trial court did not err in granting a motion for a new trial. It may be there was sufficient in the record of the former trial to justify the trial court in concluding the jury had disregarded or misconceived the instructions given or the evidence. Damages in the sum of $800 may have seemed sufficiently inadequate as to cause the court to think the verdict was the result of bias or prejudice. Whether such bias or prejudice existed we have no means of determining except from the amount of the verdict. See Chatelain v. Thackeray, supra.\\n2. Refusal of the trial court to discharge the jury at the second trial on account of alleged prejudicial conduct of plaintiff's counsel.\\nHuman frailties seem to guide the motives of both parties to a personal injury suit when the defendant has insurance protection. The defendant's counsel is tender about any reference to insurance, the plaintiff's counsel knowing human nature nad sympathies leaning to relief when no direct imposition of punishment or hurt may be the direct result is keen to get before the jury such information as will enhance the amount of the verdict. A suggestion that insurance exists is thought to furnish a motive or a temptation to trespass. Neither this court nor the trial court is concerned about the question as to whether a defendant carries insurance. Nor should the jury be so concerned. The cases indicate that this question, which should not be and is not a matter of concern, is often injected in indirect ways upon this matter of insurance giving rise to many cases. Sometimes the claim of prejudicial error is sustained, sometimes not.\\nIn this jurisdiction the claimed prejudice was not sustained, but the rule and its limitations and exceptions as to injuries about insurance were clearly stated in the case of Balle v. Smith, 81 Utah 179, 17 P. 2d 224, 228. The court suggests the question:\\n\\\"To what extent, if at all, counsel for plaintiff may examine a juror with reference to his connection either as stockholder, officer, or employee, or debtor or creditor in an insurance company, which is defending a case pursuant to a contract of insurance with the defendant, is a question of first impression in this court.\\\"\\nAfter indicating the universal rule is that it is immaterial whether a defendant in a negligence case is carrying liability insurance, it is declared that in. so far as the negligence issue is concerned such testimony is wholly inadmissible. The question here, as in the case of Balle v. Smith, supra, is not one so much relating to the testimony of witnesses, though an objection was raised upon that ground also, as a question as to what extent a plaintiff may go in the examination of jurors to determine their fitness and freedom from bias, prejudice or interest in the cause. The authorities are discussed in the Balle-Smith case and while the ruling as to the question asked a juror: \\\"Are you acquainted in any way with what is known as Inter-Mountain Lloyds?\\\" was only indirectly involved, yet the court held that:\\n\\\" plaintiff was entitled to learn whether any juror is interested in or connected with any insurance or casualty company that mwy he interested in the case as insurer of defendant's liability.\\\" (Italics ours.)\\nFor the purpose of determining a juror's qualifications to sit in a given case if it has been made to appear properly that an insurance company is the real party in interest then it would appear proper to permit a plaintiff to ask a juror directly whether he is interested as a stockholder or officer or employee or debtor or creditor of the company so interested. Reasonable latitude should be given parties in ascertaining what affiliations jurors have with an interested party. Here the matter should end. In the Balle-Smith case the approach was criticised as to the form of the question and was not permitted to be answered. The question was regarded as preliminary and therefore not reversible error. To substantially the same effect are the following cases: Bergendahl v. Rabeler, 131 Neb. 538, 268 N.W. 459; Avery v. Collins, 171 Miss. 636, 157 So. 695, 158 So. 552; Holman v. Cole, 242 Mich. 402, 218 N.W. 795; Safeway Cab Service Co. v. Minor, 180 Okl. 448, 70 P.2d 76; Miller v. Kooker, 208 Iowa 687, 224 N.W. 46. Within the rule of the cases it was prejudicial error for counsel to ask each of the jurors if he were an officer or stockholder of the Northwest Casualty Company of Seattle, Washington. The same ethical standards should be maintained in the questioning of jurors as of witnesses.\\nThe case of Alexiou v. Nockas, 171 Wash. 369, 17 P.2d 911, 914, is direct authority that the examination of each juror, as was done in the instant case as to his insurance connection was prejudicial error. The court said: \\\"The examination of the jurrors by respondents' counsel constituted reversible error. We cannot countenance such inappreciation of the ethics as counsel manifested. The purpose of his questions was patently to inform the jury that the loss would fall upon an insurance company instead of the appellant.\\\"\\nWe are of the opinion it was reversible error for counsel to interrogate each juror as to whether he were a stockholder in a specifically named insurance company or generally so as to indicate that an insurance company was the probable real party in interest, a matter foreign to the issues in the case, when no preliminary questions had been asked.\\n3. Appellant assigns as error the giving by the court of instruction numbered 11, and particularly that part which reads as follows:\\n\\\"In this case it was the duty of the defendant Kenneth Butte to drive his automobile on said highway, using reasonable care and prudence so that he could avoid injuring anyone or colliding with any person on the highway.\\\"\\nThe instruction if followed practically instructed the jury that the defendant in addition to keeping a proper lookout and requiring the exercise of ordinary care and prudence having in consideration due vigilance commensurate with the circumstances and surroundings required him to use such care and prudence so that he could avoid colliding with anyone, regardless of whether such one were or were not guilty of negligence.\\nThat part of the instruction failed to take into consideration the right of defendant to assume that all other persons upon the highway would use ordinary care and reasonable precaution for their own safety until the contrary appeared.\\n4. Other errors are assigned as to admissibility of evidence such as the answer of Gerald Frantz that his claim had been \\\"taken care of,\\\" and others in the nature of conclusions. None of the questions raised by other assignments are likely to recur. We therefore do not discuss them.\\nThe cause is remanded for a new trial pursuant to the instructions and rules herein set forth. Appellant to recover costs. Such is the order.\\nLARSON and PRATT, JJ., concur.\"}"
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+"{\"id\": \"8869545\", \"name\": \"ELLINWOOD v. BENNION et al.\", \"name_abbreviation\": \"Ellinwood v. Bennion\", \"decision_date\": \"1929-03-09\", \"docket_number\": \"No. 4739\", \"first_page\": \"563\", \"last_page\": \"568\", \"citations\": \"73 Utah 563\", \"volume\": \"73\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T22:50:52.562771+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.\", \"parties\": \"ELLINWOOD v. BENNION et al.\", \"head_matter\": \"ELLINWOOD v. BENNION et al.\\nNo. 4739.\\nDecided March 9, 1929.\\n(276 P. 159.)\\nSam Cline, of Milford, for respondent.\\nTangren & Crafts, of Delta, for appellants.\", \"word_count\": \"1541\", \"char_count\": \"8571\", \"text\": \"STRAUP, J.\\nPlaintiff brought this action to recover damages for an alleged failure of the defendants to deliver cattle to the plaintiff in accordance wtih a contract entered into between them. The defendants pleaded a denial of the breach and counterclaimed for damages alleged to have been sustained by them on account of a shortage in the weight of cattle theretofore sold and delivered to the plaintiff. The case was tried to a jury, who rendered a verdict of no cause of action on the complaint and no cause of action on the counterclaim. The defendants prosecute this appeal. No appeal is taken by the plaintiff.\\nA motion is made by the plaintiff to dismiss the appeal on the ground that no judgment was rendered or entered on the verdict and that what is denominated the judgment appealed from is not a judgment 'but at most a mere order for a judgment. Our statute (section 6861, Comp. Laws Utah 1917) provides that, when trial by jury is had, judgment must be entered by the clerk in conformity to the verdict within 24 hours after the rendition of the verdict. By section 6865, Comp. Laws Utah 1917, as amended by Laws Utah. 1925, p. 198, it is provided that the clerk must keep, with the records of the court, a judgment book in which all judgments and findings of fact shall be entered, and that a judgment shall be deemed entered for all purposes except the creation of a lien on real property, when it is signed by the judge and filed with the clerk. Section 6867, Comp. Laws Utah 1917, as amended by Laws Utah 1925, p. 112, provides that immediately after entering the judgment the clerk must attach together and file the following papers which constitute the judgment roll, among others, the pleadings, copy of the verdict, and a copy of the judgment. By section 6868, Comp. Laws Utah 1917, it is provided that immediately after filing the judgment roll the clerk must make the proper entries of the judgment under appropriate heads in the docket kept by him, which is designated the \\\"judgment docket.\\\"\\nWhat is here denominated the judgment appealed from is:\\n\\\"(Title of Court and Cause.)\\n\\\"Judgment on Verdict.\\n\\\"Whereas, on the 29 day of October, 1927, a jury regularly and duly impaneled according to law, after hearing the evidence offered on behalf of the plaintiff and on behalf of the defendants and after having been fully advised as to the law in the case and having heard the arguments of the respective counsel and thereupon returned to the court its verdict for the plaintiff on the plaintiff's cause 'No cause of Action', and its verdict for the Defendants on Defendants' counterclaim 'No Cause of action': each party to pay his own costs.\\n\\\"It further appearing to the court that no judgment in accordance with said verdict has heretofore been entered and docketed, it is therefore hereby ordered that the foregoing judgment in said case be entered and docketed by the Clerk of this Court as of the-day of October, 1927.\\n\\\"Dated at Chambers, Nephi, Utah, this 17 day of February, 1928.\\n\\\"District Court of Millard County, Utah. By Thos. H. Burton, Judge.\\\"\\nThat was filed in the clerk's office the next day. While the document is designated \\\"Judgment on verdict,\\\" yet it is no more than an order for a judgment, or an order directing the clerk to enter and docket a judgment nunc pro tunc. It generally is held that an order for a judgment is itself not a judgment and that an appeal does not lie from it as a final judgment. 3 C. J. 1190; Joint School Dist. No. 7 v. Kemen, 68 Wis. 246, 32 N. W. 42; Prothero v. Superior Court, 196 Cal. 439, 238 P. 357; Preston v. Hearst, 54 Cal. 595; Bruce v. Ackroyd, 95 Conn. 167, 110 A. 835; Stevens v. Solid, etc., Co., 7 Colo. 86, 1 P. 904. And it has been held here as elsewhere that an appeal will not lie until judgment has been entered in the proper record book, in the judgment book. Yusky v. Chief Consol. Min. Co., 65 Utah 269, 236 P. 452; Lukich v. Utah Const. Co., 46 Utah, 317, 150 P. 298. Nor may it be said that, because of the Laws of 1925, p. 198, the judgment here was entered when it was signed by the judge and filed wtih the clerk. As heretofore shown, when trial is had by jury, the judge or court does not render or sign a judgment, but judgment must be entered by the clerk in conformity to the verdict. In a case tried to the court, and perhaps in some other instances, there is a distinction between the rendition of a judgment and the entry of it, where the one is a judicial act and the other a ministerial act. In such case the rendition of the judgment precedes and is an essential prerequisite to entry. Such undoubtedly is what is meant by the language that the judgment shall be deemed entered when it is \\\"signed by the judge and filed with the clerk.\\\" But that, as we think, has no application to a case tried to a jury and a verdict rendered by it. In such case there is no signing of a judgment by the judge or court and none con templated or required by the statute, and no rendition of the judgment distinct from the entry of it, for in such case the clerk, without previous action or direction of the judge or court, is required to enter judgment in conformity to the verdict, and which in effect is simultaneously rendered and entered by the clerk and comes into existence and becomes effectual, not by any rendition or signing of the judgment by the judge or court, but by its entry by the clerk alone. Old Settlers' Inv. Co. v. White, 158 Cal. 286, 110 P. 922.\\nIn the next place, what the judge or court here signed, and what was filed by the clerk, in effect was not a judgment. That the document which was signed and filed was denominated a \\\"judgment on verdict\\\" is of no controlling force. The more important question is, Is it in effect a judgment and is it final? Sparrow v. Strong, 4 Wall. 584, 18 L. Ed. 410. No particular form or words is essential to constitute a judgment, provided they are such as to indicate with reasonable certainty a final determination of the rights of the parties and the relief granted or denied. In order that the document be a judgment, it, among other things, must be sufficiently definite and certain to be susceptible of enforcement. It must specify the relief granted or denied or other determination of the action and a description of the parties for and against whom the judgment is rendered. As said in Robinson v. Salt Lake City, 37 Utah 520, 109 P. 817, it must at least state what the prevailing party shall receive and what the losing party is required to do, pay, or discharge, and adjudicate and dispose the matters in controversy. Here the so-called judgment on verdict is, first, a mere recital of the kind of verdict rendered by the jury. That is followed by a recital that no judgment in accordance with the verdict had been entered or docketed. Then it is ordered that \\\"the foregoing judgment in said case be entered and docketed by the clerk\\\" nunc pro tunc. What \\\"foregoing judgment\\\"? We do not see anything to which that phrase may apply except the verdict itself, which of course cannot be regarded as a judgment. Kourbetis v. Nat. Copper Bank (Utah) 264 P. 724. The document, the so-called judgment, does not determine or adjudicate anything, nor does it even attempt to do so. It does not specify any relief granted or denied, nor does it determine any of the rights of the parties. It does not order, adjudge, or decree anything. It has not even the first essential requisite of a judgment. So, had what is here denominated \\\"Judgment on Verdict\\\" been entered in the judgment book or in the judgment docket, still the case would stand without a judgment terminating the litigation between the parties or disposing of the case on merits. In such respect it may here be said of the so-called judgment as was said of the denominated judgment in Kourbetis v. National Copper Bank, supra:\\n\\\"It adds nothing whatsoever to the verdict of the jury, nor does it settle the controversy between the plaintiff and defendant bank. Neither party is awarded any judgment against the other, and nothing is ordered, adjudged, or decreed.\\\"\\nThe conclusion is thus inevitable that the appeal must be dismissed and the cause remanded to the district court with leave to either party to cause to be entered a proper judgment in conformity to the verdict. Such is the order. Costs to the respondent.\\nCHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.\"}"
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+"{\"id\": \"8869939\", \"name\": \"STATE v. SEYBOLDT\", \"name_abbreviation\": \"State v. Seyboldt\", \"decision_date\": \"1925-04-01\", \"docket_number\": \"No. 4166\", \"first_page\": \"204\", \"last_page\": \"227\", \"citations\": \"65 Utah 204\", \"volume\": \"65\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:48:19.436553+00:00\", \"provenance\": \"CAP\", \"judges\": \"GIDEON, FRICK, and CHERRY, JJ., concur.\", \"parties\": \"STATE v. SEYBOLDT.\", \"head_matter\": \"STATE v. SEYBOLDT.\\nNo. 4166.\\nDecided April 1, 1925.\\n(236 P. 225.)\\nClawson & Elsmore and Samuel C. Clawson, all of Salt Lake City, for appellant.\\nHarvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.\", \"word_count\": \"7666\", \"char_count\": \"43555\", \"text\": \"THURMAN, J.\\nThe defendant was convicted of the crime of murder in the first degree, without recommendation, and sentenced to be executed as provided by law. He appeals from the judgment, and assigns numerous errors in support of his appeal.\\nIt is not contended that the evidence is insufficient to sustain the verdict, nevertheless, before disposing of the questions of law involved, we deem it expedient to make a brief statement of the facts relied on by the state, together with the substance of defendant's testimony, as to how the transaction occurred.\\nOn tbe 14th day of October, 1923, the dead body of David H. Crowther, a policeman of Salt Lake City, was found in the western portion of said city near the Jordan river. His death was caused by a gunshot wound in the back of the head \\u2014 the bullet passing through the brain and emerging just above the forehead. The pockets of his trousers were turned inside out and no articles were left in any of his clothing. The body of the deceased was found in a section of the city assigned to him for duty \\u2014 a section occupied largely by railroads and railroad stations, and, consequently, a logical rendezvous for tramps and hobos beating their way upon the incoming and outgoing trains. The deceased officer used an automobile in making his rounds in the performance of his duty. When the body was found the car was missing. A day or two after the finding of the body the defendant, with two other persons included in the information, was arrested in San Bernardino county, Cal., by officers of that state, and upon interrogation the defendant admitted killing the deceased and stealing the car in order to make his escape. The party also stole the officer's revolver and watch and sold them along the route, together with a spare tire and spotlight belonging to the ear, and spent the proceeds in obtaining gasoline and other necessary supplies.\\nThe defendant pleaded not guilty and was tried alone. His two companions afterwards pleaded guilty of murder in the second degree, and were sentenced to imprisonment in the state penitentiary.\\nThe homicide occurred as alleged in the information on the 12th day of October, 1923, and the defense relied on bjr the defendant was the alleged fact that, on the afternoon of that day, he and his two companions, while in the vicinity of the railroad station, came in contact with the deceased, who was standing by his ear apparently looking it over. Deceased motioned defendant to come down. At the suggestion of the deceased, defendant called his companions who also came. Defendant testified that both he and the deceased were intoxicated when they first met, and that deceased drove bim and bis companions to a place where defendant purchased more liquor which all of them drank. It was also testified by defendant that, while they were riding around from one place to another, he sat by deceased on the' front seat; that his companions sat behind; that the deceased put his arms around defendant and patted him on the face and pinched his cheek; that defendant pushed him away and treated it as a joke; that when they arrived near the point where the homicide occurred the deceased again repeated the offense; that he put his arm around defendant's shoulder and pulled him over towards him and with his left hand got hold of defendant's face; that defendant pushed him away; that deceased put his arm around defendant again and pulled him over; that defendant then put his hand in deceased's face and pushed him away. The deceased used, some language not disclosed by the record. He pulled out his gun and started to swing it around. As he swung it around defendant reached over and knocked deceased's gun out of his hand. The gun fell to the floor of the car almost under the steering wheel. Deceased looked at defendant a moment, cursed him, and said he would get even with him, and started to reach for the gun but could not reach it. He then straightened up. Defendant said, \\\"Don't touch that gun, if you do I am going to shoot you.\\\" Deceased reached down to the floor for the gun. Defendant told him not to touch it. Deceased cursed defendant and said he would get him and get him right, and picked up the gun and had it in his hand. As he was raising up defendant fired the fatal shot. Finding that the deceased was dead, the defendant and his companions removed the body from the car and by partially lifting and partially dragging it removed it to a point some distance away and deposited it into or near a slough behind some bushes with the avowed purpose of hiding it so it could not be immediately discovered. Previous to removing the body, defendant took deceased's revolver and laid it on the front seat of the car.\\nSuch in brief is the substance of defendant's testimony' as to the incidents leading up to and immediately connected with the tragedy. Defendant also admitted that they took the ear to make their \\\"get-away.\\\" The revolver and watch of deceased were also taken and disposed of with certain accessories of the car hereinbefore referred to.\\nThe evidence on the part of the state consists largely of circumstances and alleged confessions by defendant from which the jury were warranted in finding that the homicide was an unprovoked and cold blooded murder for the sole purpose of obtaining'the ear in order to reach Los Angeles, for which city the party were bound. His statement to the sheriff of San Bernardino county, Cal., as testified to by that officer, was to the effect that he shot the deceased and killed him; that he was alone with the deceased in the car, and that they drove down to the bank of a small stream and that he started in to \\\"stick up the officer,\\\" and that the officer went for the left-hand front pocket of the ear, whereupon defendant shot him through the head and killed him; that he dragged the body from the car and robbed it, and then got into the car and drove back to where his companions were and picked them up. The sheriff further testified that defendant then told him concerning the disposition of the property taken from deceased and the places along the route where the articles were disposed of. The testimony of two or more of the witnesses was also to the effect that when asked why he killed the officer in order to get his car defendant said, \\\"I must have lost my head.\\\" There are many details connected with the transaction not necessary to enumerate inasmuch as the sufficiency of the evidence to sustain the verdict is not challenged or in any manner in question. This brings us to a consideration of the questions of law involved.\\nThe first error assigned is the refusal of the court to issue a new venire from which to select the jurors. The reasons assigned by defendant why a new venire should have been issued by the court is because 12 of the jurors, who were on the old venire had been in the Farr Case, in which the \\\"evidence showed a flagrant disregard of life on the part of the accused.\\\" The jury in that case had brought in a ver- diet of murder in tbe first degree, but witb a recommendation for life imprisonment. In sentencing Farr, it is said by counsel in tbeir brief, \\\"tbe court took occasion to administer a severe reprimand to the jurors who bad shirked their duty, by recommending a life sentence.\\\"\\nTbe gist of counsel's contention is that such a jury, in tbe face of such a reprimand, would not be inclined to make a similar recommendation in a subsequent case, where the' evidence showed it to be a case of murder in tbe first degree, notwithstanding mitigating circumstances might appear.\\nThe question presented is unique. No authorities are cited in support of the contention mad\\u00e9. It was not a challenge to the panel for the objection only went to 'a specified class of jurors, and not to the entire panel. Besides this, the objection was not based upon grounds necessary to constitute a valid objection to the panel, as provided in Comp. Laws 1917, \\u00a7 8940, but the objection rather went to the bias of the jurors, which could only be reached by an examination of each individual juror after he was called in the ease. In this connection it is pertinent to remark that we see no reason why counsel could not have examined each juror at any reasonable length upon the very matter which constitutes the basis of their objection. It certainly would have been proper to ask the juror if he sat in the Farr Case, and, if he answered affirmatively, then ask him if he heard the reprimand administered by the court, and whether or not in the instant case, if accepted as a juror, he would render a fair and impartial verdict in accordance with his conscientious convictions, notwithstanding the rebuke in the former case. The writer is of opinion that such questions, or others with the same end in view, would have been pertinent and proper, and that that was the only way known to our practice by which the situation confronting defendant could have been met and disposed of. The court did not err in refusing to issue a new venire.\\nThe next assignment charges error in the dismissal of the Juror Kelso who was sworn upon his voir dire and examined by the court. The court of its own motion, after the examination, dismissed tbe juror not only from the case, but for the term. As the question is one of practice and somewhat unusual we here present the entire examination of the juror, together with the order of the court:\\n\\\"Q. Mr. Kelso, what is your occupation? A. Timekeeper for the Utah Light & Traction C'o.\\n\\\"Q. How long has that been your occupation? A. Four years.\\n\\\"Q. Have you any conscientious scruples against the infliction' of the death penalty? A. I have not.\\n\\\"Q. You believe that it is morally right? A. I do.\\n\\\"Q. Mr. Kelso, you have been interrogated on this question once before at this term, haven't you? A. Yes, sir.\\n\\\"Q. And you made the same answers you did the first time to the question asked by counsel. I don't think the last question that has been put, about moral right, was asked you but you said in substance, did you not, that you believed that you had no conscientious scruples and no hesitancy about the death penalty in a proper case? A. No, sir.\\n\\\"Q. Will you kindly tell me what you consider a proper case, what your idea is; I would like to know? A. Well, where he is proven guilty beyond a reasonable doubt that the murder was premeditated and deliberate, and it was proven that he was guilty, in that way.\\n\\\"Q. If you were impaneled as a juror in a homicide case where murder in the first degree was a charge, would you go into the jury box and make any such statement as that you didn't want to have on your soul or conscience the death of a defendant following you through life; would you make any such statement as that? A. I would not.\\n\\\"Q. Would you be influenced by any such an argument as that? A. I would not.\\n\\\"The Court: You may be excused; and I think you may be excused for the term, Mr. Kelso, inasmuch as there is nothing but homicide cases to try, the court has to be the judge of what the weight and value of the statements of a juror may be.\\\"\\nFrom the examination it will appear that the court dismissed the juror without any apparent cause. His answers were fair, pertinent, and to the point, and showed him to be qualified to serve in a capital ease, and, for aught that appears, in the c;ase at bar.\\nCounsel for defendant strenuously insist that the dismissal of the juror was prejudicial error, and in support of their contention make reference to 24 Cyc. 260, in which the power of the court to excuse jurors on its own motion is discussed at considerable length. A more pertinent reference, however, is found on page 315 of the same volume in which the author says:\\n\\\"It has heen held to he reversible error for the court of its own motion and against the direct objection of one of the parties to exclude a juror without good cause, or for a cause which merely affords a ground of challenge which the parties may waive, and which if waived would not affect the juror's competency; but, on the contrary, it has been held that it is not reversible error to exclude a juror for an insufficient cause if an impartial and unobjectionable jury is afterward obtained, particularly where the excepting party has not exhausted the peremptory challenges to which he is entitled.\\\"\\nThe author cites the following cases: Welch v. Tribune Pub. Co., 83 Mich. 661, 47 N. W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629; Montague v. Comm., 10 Grat. (Va.) 767; Bell v. State, 115 Ala. 25, 22 So. 526; Van Blaricum v. People, 16 Ill. 364, 63 Am. Dec. 316; Greer v. State, 14 Tex. App. 179.\\nThe case most strongly supporting appellant's contention in the foregoing list is Van Blaricum v. People, supra, in which the court of its own motion dismissed a juror who stated he had formed and expressed an opinion in the case. In the course of the opinion the court said:\\n\\\"It does not appear but that the juror possessed the legal qualifications required by the statute, but that he was subject to challenge for favor. If the parties chose to have their cause tried by a prejudiced juror, it was not for the court to refuse them the right. I once heard a trial for murder, where a majority of the jury stated that they had formed and expressed the opinion that the prisoner was guilty, and still he accepted and was tried by them, and was acquitted upon a technical point, which his counsel evidently supposed those jurors had the capacity fully to comprehend, and the firmness and integrity to give him the benefit of. So in this case, the prisoner had a right to be tried by this juror, unless the people should challenge him. Whether he would have been challenged by the people, had he not been set aside by the court, we cannot know. It is enough that he might have been accepted by them, to give the prisoner the benefit of the exception. That chance, at least, was his right, and because he was deprived of it, he must hare a new trial.\\\"\\nIn Bell v. State, supra, it was held error for tbe court, on its own motion, to dismiss a juror because it appeared that he had been summoned as a witness for one of the parties, such fact being merely a cause for challenge by one of the parties, which might be waived.\\nIn Montague v. Comm., supra, the fifth headnote reflects the opinion of the court reversing the judgment:\\n\\\"The court cannot, of its own motion, where no challenge is made, without good cause, set aside a juror, except where he is disabled physically or mentally from properly performing the duties of a juror, or is disqualified by statute.\\\"\\nIn Welch v. Tribune Pub. Co., supra, at page 666, 47 N. W. 564, of the report, it is said:\\n\\\"The court, without a challenge being interposed, and without stating any cause or reason therefor, excused the juror, against the protest of the plaintiff. We do not think the judge has. a right to reject a qualified juror with whom the parties are satisfied, unless for sufficient cause; and such cause should appear upon the record. Pearse v. Rogers, 2 Fost. & F. 137. The circuit judge is not invested with any right of peremptory challenge. He can excuse for, cause, but the cause must be stated, so that it may appear of record. Proff. Jury, \\u00a7 140. The exercise of the power to discharge a juror by the circuit judge of his own volition is not a matter of discretion. It must be based upon some cause. It will not do to hold that a circuit judge may, without assigning any reason, discharge jurors at his mere will or caprice. If he may so discharge one juror he may discharge a dozen, and compel parties, after they have exhausted their peremptory challenges, to accept such a jury as he is satisfied with.\\\"\\nIn Greer v. State, supra, a full jury' had been impaneled and accepted by the parties. The court upon its own motion ordered four of the jurors to stand aside. It was held that the action of the court was without authority and erroneous.\\nWe have carefully examined numerous other cases to the same effect as those above cited, and' many others in which the trial courts dismissed jurors without challenge by one or the other of the parties, and the orders of dismissal sustained, but we have found no ease whatever in which such orders were sustained, unless some reason for making-the orders appeared upon the record. The trial court undoubtedly has the power, of his own motion, to dismiss a juror lacking tbe statutory qualifications; and in a capital case there can be no doubt of the power of the court to stand a juror aside for conscientious scruples against the infliction of capital punishment, for in such cases the statute expressly declares the juror may not be permitted to serve. But in the case at bar, as before stated, the examination of th\\u00e9 juror on his voir dire disclosed no reason whatever for his peremptory dismissal, nor was there any challenge interposed.\\nWhile it must be conceded that it is elementary law that the trial judge has a wide discretion in determining the qualification of a juror when examined as to his bias, yet it is not an arbitrary discretion. As stated in Thompson & Merriam on Jurors, at page 278, in speaking of the power of the court to dismiss jurors of its own motion:\\n\\\"Tliere can be no doubt that there is need of caution by the trial judge in the exercise of this discretion in discharging jurors.\\\"\\nIn the light of the authorities we have examined, the court is of opinion it was error to dismiss the Juror Kelso, in view of the examination made by the court and the answers of the juror appearing upon the record. But whether or not such error was prejudicial is another and different question.\\nIt has often been held by this court that in this jurisdiction prejudice is not presumed from error. (See one of the latest cases, State v. Nell, 59 Utah, 68, 202 P. 7.) The statutes of the state (Comp. Laws 1917, \\u00a7 9281), expressly declare that this court in criminal cases on appeal must give judgment without regard to errors which have not resulted in a miscarriage of justice. It is further provided that, if error has been committed, it shall not be presumed to have resulted in a miscarriage of justice, and that the court must be satisfied that it has before it is warranted in reversing the judgment. The statute is revolutionary in its effect in that it entirely abrogates the old rule under which if error was found prejudice was presumed. It has now become the duty of this court in criminal cases, on appeal, to go further than the mere finding of error. It must be satisfied that the error is prejudicial before it is warranted in reversing the judgment.\\nThe examination of the Juror Kelso discloses nothing from which it can be determined that the defendant would be prejudiced by requiring the juror to stand aside. There was nothing disclosing a sympathetic tendency or the slightest favoritism for either party. In view of the record the court is not satisfied that the dismissal of the juror resulted in a miscarriage of justice, notwithstanding such dismissal was erroneous as matter of law.\\nDefendant also assigns as error the ruling of the court in denying his motion for a continuance upon application made March 24, 1924. The application was based upon the affidavit of Samuel G. Clawson and three other persons. The affidavit of Clawson recites numerous murders and murder trials recently occurring in Salt Lake City in which policemen of the city were victims, together with criticism of the board of pardons on account of alleged leniency. In consequence of all of which affiant asserts that the public mind had become inflamed to a degree that it would be impossible to accord defendant a fair trial on the date set by the court. The affidavits of the other three persons were to the same effect as to the inflamed state of the public mind. All of the affidavits asserted that there appeared to be strong public prejudice against the defendant. Counter affidavits were filed oh behalf of the state by 14 persons, who expressed the opinion that there was far less prejudice against the defendant than had been manifest in any recent homicide case, and were of opinion that the defendant would have a fair trial, as far as sentiment of the community was concerned. The court, in the exercise of his discretion denied the motion.\\nAn information was filed -in the case November 24, 1923, and on the same day defendant was arraigned and pleaded not guilty. On January 5, 1924, the case was set for trial January 12, and later continued to February 2, and later still, on request of the district attorney, the case was continued till March 17. During this period of time counsel for defendant were endeavoring to get continuances on tbe grounds that they were not prepared to go to trial owing to the brief time they had had for preparation, but no suggestion was made as to the inflamed condition of the public mind, or prejudice against the defendant. The affidavits of defendant in support of his motion appear to have been fairly answered by the numerous affidavits filed on behalf of the state. In such case the discretion of the trial court in denying a continuance will not be reviewed. State v. Anselmo, 46 Utah, 137, 148 P. 1071; State v. Haworth, 24 Utah, 398, 68 P. 155; State v. Vacos, 40 Utah, 169, 120 P. 497; State v. Riley, 41 Utah, 225, 126 P. 294. Even if there should be more or less excitement in a community on accoiuit of numerous recent murders such would hardly be grounds for a continuance if a fair and impartial jury could, notwithstanding, be obtained. The granting of continuances on that account would certainly not have a restraining influence against the further commission of crime. A fair, speedy, and impartial trial is what the defendant has a right to demand, and, on the other hand, it is the duty of the prosecuting officers of the state to demand it for the protection of society and the peace-loving people of the commonwealth. There was no error in denying the continuance.\\nAt the close of the first day of the trial, counsel for defendant requested the court to order that the jury be confined and kept in charge of the bailiffs till, the case was finally ended. No special reasons were given or representations made. The request was denied. This ruling of the court is assigned as error.\\nIt appears affirmatively from the record that the court at each recess and adjournment occurring during the trial gave the jury the statutory admonition against conversing with other persons or among themselves about the case until it was finally submitted. There is nothing to indicate that the admonition was not strictly observed or that the jurors even mingled with the people of the community or were even in conversation with, other persons during the trial of the case. Comp. Laws Utah 1917, \\u00a7 9001, provides:\\n\\\"The jurors sworn to try a criminal action may, at any time before the submission of the case to the' jury, in the discretion of the court, be permitted to separate or be kept in charge of a proper officer. The officer must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to them or communicate with them, nor to do so himself, on any subject connected with the trial, and to return them into court at the next meeting thereof.\\\"\\n\\\"While it is not unusual and is oftentimes prudent, especially in capital cases, for the trial court to order that the jury be kept together in charge of an officer during the trial and until the case is submitted, nevertheless, as appears from the statute quoted, it is a matter en tirely within the discretion of the court. Counsel, in support of their request, refer to the following authorities which appear to lend support to their contention. 16 R. C. L. 312; Armstrong v. State, 102 Ark. 356, 144 S. W. 195; Sargent v. State, 11 Ohio, 472; Hamilton v. State, 62 Ark. 543, 36 S. W. 1054. Whatever may be the statutes of the states controlling in the cases cited, or the circumstances involved in such cases, they can have neither binding effect nor persuasive influence upon this court in view of our own statute hereinbefore referred to. Even if we could hold that it was error to allow the jury to separate, which would be going too far in view of the statute last quoted, we would still be confronted with the other statute to which reference has been made which declares that prejudice may not be presumed, notwithstanding error may have been committed.\\nThe widow of deceased was permitted to testify over defendant's objection. The ruling of the court is assigned as error. It appears that all she was called for was to identify the stolen watch. The defendant offered to admit its identity and objected to her testifying in the case. The district attorney insisted upon her being allowed to testify and the court permitted it. Counsel, among other things, say in their brief:\\n\\\"Tbe only reason sbe was called to the stand for was to work upon the passion of the jurors, to deepen their prejudice, for what man/listens to. a widow sobbing out her sorrow without a resolve to punish the hand which caused the trouble.\\\"\\nIn support of tbis assignment counsel call our attention to the following authorities. 38 Cyc. 1416; Green, Adm'x, v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722, 43 L. R. A. 117, 70 Am. St. Rep. 911; Woodbridge Ice Co. v. Semon, etc., 81 Conn. 479, 71 A. 577. We cite the cases without comment, as we do not deem the question of sufficient importance to justify the effort. The cases are clearly distinguishable from the case at bar. This court has heretofore passed upon a similar question. In State v. Thorne, 41 Utah, 414, 126 P. 287, Ann. Cas. 1915D, 90, cited by the Attorney General, appellant charged as' error a ruling of the court permitting the mother of deceased to testify in the case notwithstanding her testimony was subsequently stricken as immaterial. The court in the course of its opinion, at page 430 of the Utah Report, 126 P. 292, speaking through Mr. Chief Justice Frick, said:\\n\\\"Tbe objection and complaint of counsel is, however, not directed so much to what the witness testified to, as it is to the fact that the prosecuting attorney called her as a witness in the case. It is contended that the prosecuting attorney was unfair, and was guilty of bad faith in calling the witness' at all, and that he did so for the sole purpose of arousing the prejudices of the jurors against the appellant. So far as the record shows, we are unable to see why the mother of the deceased should have aroused the prejudices of the jurors against appellant. Her testimony certainly could not have had such an effect. What her acts and conduct were is not disclosed. The witness, however, had a perfect right to come into court and witness the proceedings; and, if her mere presence in court, in case her conduct was proper, enlisted the sympathy of the jurors in her behalf or aroused their prejudices \\u2022 against appellant, the court Was powerless to prevent such a result. If men, young or old, will enter upon a life of crime, and in their mad career will resort to robbery and murder, they must submit to an open and public trial at which anyone may be present. The relatives and friends of the one who may have been robbed or murdered have just as much right to be present at such trials as anyone else, and they may also be called as witnesses, and testify to any material matter of fact; and the mere fact that such a relative may be called, whose testimony, after it has been elicited, is by the court found to be immaterial and stricken out, affords no grounds for a new trial.\\\"\\nThe introduction of evidence concerning a fact which the opposing party is willing to admit is oftentimes subject to the criticism that it was introduced for an ulterior purpose. Unless such evidence is pertinent to em phasize a fact which the admission does not fully cover it is safer far, especially in a case of this kind, to accept the admission rather than to give the accused a pretext to complain of misconduct or unfairness. However, as held in the Thorne Case, supra, it was not error to admit the evidence.\\nThe next matter complained of by defendant was the refusal of the court to grant defendant's ninth request. The request was given in part and in part refused. We here quote the request in its entirety, italicizing for convenience the part rejected:\\n\\\"You are instructed that mere probabilities are not sufficient to warrant a conviction in a criminal case, nor is it sufficient that the greater weight, or preponderance of the evidence, support the allegations of the information, nor is it sufficient upon the doctrine of chance that it is more probable than otherwise, that the defendant is guilty as charged in the information. I charge you that to warrant the conviction, every element of the crime charged in the information must he proved to you so clearly and so conclusively that there is no reasonable theory upon which the defendant can be innocent. When the evidence in the case is considered together, and when you so consider the evidence, if there remains \\u00faj. your mind a reasonable doubt as to the defendant's guilt, from any element necessary to constitute the crime and hereinbefore defined to you, then I charge you the defendant is entitled to a verdict of not guilty.\\\"\\nThe part rejected is stated in stronger language than is ordinarily given by courts in criminal cases. The words \\\"proved to you so clearly and conclusively\\\" might have a tendency' to mislead the jury and cause them to believe that something more was required of the state than mere proof beyond a reasonable doubt. I am of- the opinion that the request in this regal'd was objectionable. In any event the part of the request given by the court, together with instruction No. 8, clearly and accurately stated the measure of proof required. These, together with instruction No. 10 which accurately defined a reasonable doubt, covered the whole subject-matter of defendant's request in clear and unmistakable terms. In such case it was unnecessary to give the instruction as requested by defendant. Reddon v. U. P. R. R. Co., 5 Utah, 344, 15 P. 262, affirmed Id., 145 U. S. 657, 12 S. Ct. 989, 36 L. Ed. 848. The refusal of the request was not error.\\nFinally, it is urged by the defendant that the court erred in restricting his cross-examination of the witness Beckstead, a witness for the state.\\nThe witness testified on his direct examination that he was chief detective of Salt Lake City; that he first saw the defendant on Monday the 22d of October, 1923, and had but little conversation with him at that time; that he saw him again the next day; that on one or the other of those days defendant gave his age as 20 years; that he had no conversation on either of those days about the killing of Crowther, but on Wednesday he had another conversation in which the subject of the homicide was discussed. On that day the witness showed defendant his record in the Wyoming penitentiary in which his age was given as 25 when he entered the prison. Defendant, however, denied that that was his age, but finally admitted he was born in 1900. Witness testified defendant told him he was in the car when the homicide occurred; that they drove the car along the river and the car stopped for a few minutes and the deceased said something about moving on and leaned over sligtly apparently going to turn over the ignition when a shot rang out. Witness asked defendant who fired the shot and he said he did not know. Witness asked defendant if he helped to take the body from the car and he said he did and described the method in which the body was removed over to the point where it was concealed. Witness asked defendant if he was willing to go to the place where the body was found and demonstrate what occurred there and he said he was, and they went out there and defendant showed where the two men sat in the back of the car while he sat in front by the driver. Defendant then showed, how they removed the body and the point to which it was taken. It was near the roadway leading down from North Temple to South Temple street. Defendant pointed out a slough where the body was hidden, probably 15 feet west of the river. They then went back to the police station. Witness asked defendant where he obtained the gun with which deceased was killed. He said he stole it in Wyoming from a man named Blackie. He said he had been in, the Wyoming penitentiary about two years or a trifle over. Such in substance was the testimony of Beckstead in chief.\\nOn cross-examination, witness stated that at no time did defendant say he had killed the officer. Witness said he and defendant went over tke route pointed out by defendant. Witness was then asked: \\\"Where was it Mr. Seyboldt pointed out that he met Officer Crowther?\\\" This was objected to by the prosecution as not proper cross-examination and as being immaterial and irrelevant. The objection was sustained on the ground that it was not proper cross-examination. Exception was noted.\\nLater bn defendant's counsel asked: \\\"Will you tell the jury just the route, that you did take from the police station to the place where the officer's body was found ? ' ' This was objected to by the prosecution as being irrelevant, immaterial, and not proper cross-examination. Objection sustained on the latter ground. Exception. Further on in the cross-examination counsel asked the witness: \\\"Did you have a conversation with the defendant Seyboldt on this afternoon of this day that you went from the police station to the point where the officer's body was found?\\\" This was objected to by the prosecution as \\\"not proper cross-examination, because there has been no conversation introduced in chief with reference to this trip.\\\" Objection sustained on the ground stated. Defendant's counsel explained that the purpose of the question was to bring out the full facts of the transaction which the state had opened tip by the testimony introduced, and also for the purpose of testing the credibility of the witness.\\nWe have stated these proceedings with more detail perhaps than is necessary to illustrate the point of defendant's objection. We have done so for the sole purpose of illustrating the. fact that the cross-examination was unduly restricted, and, were it not for the fact that the questions to which objections were, sustained appear to be of no substantial materiality, error would have been committed in. sustaining the objections. The objections were sustained as not being proper cross-examination, when, if sustained at all, it should have been on the grounds that the questions did not appear to be material. For instance, the witness had testified in chief that defendant went with him to point out the place in question, yet, when defendant's counsel, on cross-examination, asked the witness, \\\"where was it Mr. Seyboldt pointed out that he met Officer Crowther'' the question was objected to as immaterial, irrelevant, and not proper cross-examination, and the objection was sustained on the latter ground. Again, when defendant's counsel asked the witness to tell the jury what route he took in going from the police station to the point where the officer's body was found the objection was made that it was immaterial, irrelevant, and not proper cross-examination, and sustained on the latter ground. The foregoing examples are typical of numerous others appearing in the record which we have neither time nor inclination to set forth. If the examination of the witness, in chief, upon these questions was material a reasonable cross-examination on such matters should have been. permitted. We suggest, as a matter of caution, that loose methods in the conduct and trial of criminal cases, especially in cases where human life is at stake, are dangerous experiments and indefensible. They should never be practiced by the prosecuting officer nor permitted by the court.\\nThe point, however, in question here is, Did the court err in sustaining the state's objection to the question propounded by defendant? The question was, \\\"Did you have a conversation with the defendant Seyboldt on this afternoon of this day that yon went from the police station to. the point where the officer's body was found?\\\" The objection was that it was \\\"not proper cross-examination as there had been no conversation introduced in chief with reference to this trip.\\\" The objection seems to have been premature. The witness, if permitted, might have answered \\\"no.\\\" But the matter has been treated by both the state and defendant as if the question was \\\"what conversation, if any, did you have with defendant on the trip?\\\" It does not appear that the question called for anything material. There might have been a conversation or many conversations, wholly immaterial to the controversy before the- court. Counsel stated to the court the purpose of the question was to bring out all the facts of the transaction which the state had opened up and also to test the credibility of the -witness. If counsel meant, as their language implies, to bring out all the facts opened up by the state during the trial of the case, the purpose was entirely too broad, for the testimony of the witness in chief as to what occurred on the trip was restricted to having the defendant point out certain places descriptive of what was done in connection with the crime. The record does not disclose anything that could be termed a conversation in which Beckstead participated while on the trip. From defendant's brief, it appears that the principal reason counsel gives for contending that the question was proper was that the conversation might show that defendant then told the witness the same story that he afterwards told at the trial. In other words, his story told at one time would corroborate his story told at another, and thus strengthen his testimony before the jury. We know of no rule which permits the admission of evidence for such a purpose either on direct or on cross-examination, except in exceptional cases of which this is not one. For that purpose the testimony sought to be elicited has all the ear-marks of a self-serving purpose and was therefore inadmissible. The court is of opinion there was no error in sustaining the objection.\\nOur conclusions in tbis case involve serious consequences to tbe defendant tbe gravity of which has impelled us to tbe exercise of more than ordinary care in examining tbe record of tbe trial. It discloses tbe fact that tbe defendant was only 23 years of age when be committed tbe awful crime for which be was convicted and sentenced. Prior to coming to Utah with bis companions in October, 1923, be served two years or over in tbe \\\"Wyoming penitentiary on a charge of grand iarceny and shortly after being released stole tbe revolver with which be afterwards killed tbe deceased. On arriving in Salt Lake City before the commission of tbe homicide in question, be and his companions staged a \\\"holdup\\\" within tbe limits of tbe city and attempted to rob an unoffending citizen. His testimony on tbe witness stand as to why he killed tbe deceased was not believed by tbe jury, and was wholly unbelievable. Not satisfied with killing the deceased for the evident purpose of obtaining possession of bis automobile and other property he sought to besmirch his character by insinuating that deceased contemplated an indecent assault upon defendant and, when defendant resented it, that deceased became furious, reached for and obtained bis gun, and for tbis reason defendant fired the fatal shot. The deceased's version of the transaction can never be known, but enough is known to establish the fact that the insinuation against his character was a foul and malignant slander. ' The neighbors and associates of deceased who had known him practically all his life went on the stand and testified to his general reputation for morality and declared it was good. This testimony was not contradicted by a single witness. Such testimony however, was wholly unnecessary as the fact that defendant and his two companions, all young able-bodied men, were present together is itself a refutation of the idea that the deceased contemplated an immoral act. The pretense of defendant that he shot deceased in self-defense is likewise indefensible for the same reason. Besides this, it may be stated as a matter of common knowledge that a man who kills his fellow man in self-defense in the presence of his own friends and com panions who can testify in his behalf is not likely to conceal the body of his victim, rifle his pockets, steal his property, and flee from the state as defendant admits he did in the instant case.\\nThere is no reversible error in the record and no merit whatever in the defense relied on at the trial.\\nThe judgment is affirmed, and the cause remanded with directions to the trial court to fix the date for execution.\\nGIDEON, FRICK, and CHERRY, JJ., concur.\"}"
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+"{\"id\": \"8870158\", \"name\": \"TRIPP v. BAGLEY\", \"name_abbreviation\": \"Tripp v. Bagley\", \"decision_date\": \"1929-11-19\", \"docket_number\": \"No. 4717\", \"first_page\": \"42\", \"last_page\": \"50\", \"citations\": \"75 Utah 42\", \"volume\": \"75\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:42:25.010637+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.\", \"parties\": \"TRIPP v. BAGLEY.\", \"head_matter\": \"TRIPP v. BAGLEY.\\nNo. 4717.\\nDecided November 19, 1929.\\n(282 P. 1026.)\\nRehearing Denied December 17, 1929.\\nKing & King and Stewart, Alexander & Budge, all of Salt Lake City, for appellant.\\nWm. B. Higgins, of Fillmore, for respondent.\", \"word_count\": \"2327\", \"char_count\": \"13430\", \"text\": \"CHERRY, C. J.\\nThis action is to recover damages, both actual and punitive, for flooding water upon lands belonging to the plaintiff and his assignor, Maud Tripp Morehouse, during each of the irrigating seasons of the years 1919, 1920, and 1921. The wrongful acts complained of and the damages suffered for each season are stated in six separate causes of action in the plaintiff's complaint. Except as to time, the several causes of action are similar, and in substance set forth that the plaintiff (or his assignor) was the owner of certain lands in Juab county valuable for growing crops and pasturing animals, and upon which crops and pasture were growing; that the defendant wrongfully entered upon the lands described, and constructed ditches and canals thereon, into which he diverted large quantities of water; that the ditches were not o'f sufficient capacity to carry the waters turned into them; that the ditches became filled with sand, gravel, and sediment, and overflowed and discharged large quantities of water, sand, and gravel upon the adjoining lands, causing the same to become soaked and saturated, and destroying the crops and pasture growing thereon; that a certain road leading from the plaintiff's house on the lands described to a public highway had been soaked, saturated, obstructed, and destroyed; and that, by reason of the wrongful acts complained of, he had been deprived of the use of his farm and the means of access thereto, to his damage in a sum specified for each season.\\nEach cause of action contained an allegation that the acts complained of were done willfully; unlawfully, maliciously, and wantonly, with intent to vex, annoy, oppress, and injure, etc., on account of which punitive damages were claimed.\\nUpon general denials by the defendant and a claim of right to use ditches and natural channels for conducting water over the lands claimed to have been injured to his own lands adjoining below for irrigation, the case was tried by jury, resulting in a verdict for the plaintiff for $2,100, of which $650 was for actual damages sustained by the plaintiff, $450 actual damages sustained by the plaintiff's assignor, and $1,000 punitive damages.\\nThe appeal is from a judgment for $2,100 entered upon the verdict.\\nThe principal complaints of the appellant are that the court erred concerning the measure of damages applied in the case and in submitting to the jury the question of punitive damages. Other assignments of error are stated in the brief, but we think them so plainly untenable as not to warrant special mention.\\nAs proof of the damages claimed, the court permitted the plaintiff to prove the usable or rental value of the lands affected and the extent to which that value was diminished by the acts of the defendant complained of, and the jury was instructed:\\n\\\"You are instructed that if you find that the plaintiff is entitled to recover in this action, you should award him in actual damages such sum as, in the exercise of discretion, you deem will he reasonable compensation for the diminution, if any, in the usable value of said lands, or some portion thereof, belonging to or in the possession of the plaintiff and his assignor, Maud Tripp Morehouse, or either of them, in any or all of the years 1919, 1920, and 1921, any such diminution to be determined by the difference, if any, in the value of the use of such lands, during said periods without floods, seepages, or consequent conditions, of the character here complained of, and the value of such use during the continuance of the floods, seepages, or conditions caused thereby, if any you should find, during said periods. And you are instructed that in estimating the amount of such damages, if any, you should take into consideration the value of the crops if any which the plaintiff and his said assignor may or Would, excepting for any such floods, seepages, or the conditions caused thereby, have made from said lands, during any or all of said periods, and the injuries, if any, sustained by the plaintiff and caused by any such floods, seepages, or conditions caused thereby, by reason of his being deprived of the use of a portion of his said lands for pasturage, or by reason of the passage to and from, or over, his said lands, being rendered more inconvenient or expensive, if you should find any of these facts from the evidence; and you should take into consideration all other facts and circumstances shown by the evidence, bearing upon the injuries, if any, to said lands, or the property rights incidental thereto.\\\"\\nAppellant contends that the admission of the evidence referred to and the instruction quoted were erroneous, because the action was a plain case for damage to crops, and that the measure of damages for the destruction or injury to crops is the difference between the market value of the crop before and after the alleged damage, citing Cleary v. Shand, 48 Utah 640, 161 P. 453, and Sharp v. Cankis Gianulakis, 63 Utah 249, 225 P. 337.\\nIf the case at bar was an action alone for the destruction of crops, the rule of damages applied in the cases cited would be applicable. But this action is clearly more than an action to recover for injured crops. It is expressly alleged that, by reason of the acts of the defendant, the \\\"plaintiff was deprived of the use and enjoyment of his said farm, including the means of ingress and egress to and from the same.\\\" The evidence of the plaintiff generally supports the allegations of his complaint, and was to the effect that not only were his crops injured, but his use and occupation of his lands seriously interfered with by the flooding of water and the depositing of sand and gravel thereon and the damage and obstruction to his road. To limit the plaintiff to damages for the injury to particular growing crops under the circumstances would be quite unjust. It is apparent from his evidence that he suffered additional damages.\\n8 R. C. L. 480, says:\\n\\\"Since the owner of real estate is entitled to use it in its present condition, as against one who injures such property he is entitled to compensation for any depreciation in its market value, or value for use, or for any permanent injury to the land itself, or for the loss of its use.\\\"\\nThe measure of damages for .injury to real property is not invariable. 17 C. J. 880. Consideration is given to the peculiar circumstances of each case. Where the thing destroyed or injured, although a part of the realty, has a distinct value without reference to the realty on which it stands or from which it grows, the recovery is for the value or depreciation of value of the thing destroyed. 17 C. J. 881. Such was the situation in the Utah cases cited by appellant. But where, as in the case under review, the injury to crops was but one of several elements of damage, all of which disturbed and interfered with the use of the land, and the action was brought to recover compensation for the deprivation of the use and enjoyment of the lands, the measure of damages applied by the court was as favorable to the defendant as he was entitled to, and is supported by abundant authority. 8 R. C. L. 483; 17 C. J. 883; 3 Kinney on Irr., p. 3134, see case note; 3 L. R. A. (N. S.) 973.\\nThe next question to be considered is whether the case as made by the plaintiff warranted the court in submitting the claim for exemplary damages to the jury. Appellant contends that the evidence was insufficient, as a matter of law, to justify the court in submitting the question to the jury. It may be stated that the court instructed the jury that punitive damages were not recoverable for injuries to the lands of the plaintiff's assignor, but, if it was found that the injuries complained of to the plaintiff's lands were inflicted maliciously or wantonly, an award of punitive damages in addition to actual damages might be made, etc. And, as before stated, an award of $1,000 punitive damages was included in the verdict and made a part of the judgment.\\nThe relevant facts pertaining to this phase of the case ar\\u00e9 that the plaintiff and defendant owned adjoining farming lands upon which water was used for irrigation. The source of their water supply was the same stream which in its natural course flowed across the plaintiff's lands to the defendant's lands. There is no question of the defendant's right to have the water which he was entitled to use flow across the plaintiff's land. At least two channels had for many years been used for this purpose. From time to time these channels were filled up and their courses more or less changed by the sand and gravel washed down by the high waters of the stream in the early summer. The defendant's right to conduct water across the plaintiff's land was not denied. The dispute was as to the location of the channels which he was entitled to use. The defendant contended that he merely reopened and repaired channels formerly used, while the plaintiff claimed that he constructed an entirely new ditch over and through the best part of plaintiff's lands where none had ever existed before.\\nCertain statements by the defendant are claimed by the plaintiff to indicate bad motives and malice.\\nThe plaintiff testified that, when the defendant in the year 1919 was engaged in plowing the ditch in question, the plaintiff went to him and asked: \\\"Rene, what are you doing here?\\\" Defendant replied in a sneering manner, \\\"I should think you could see.\\\" Where upon the plaintiff said, \\\"I forbid you to make any ditch here on my land.\\\" Defendant replied, \\\"Oh, George, that forbidding is getting to be an old thing. Why don't you start something now?\\\"\\nAnother conversation was put in evidence between defendant and one Jacaway, a freighter who had a tent pitched on the plaintiff's land in 1919. Jacaway, seeing the defendant cleaning out a ditch, walked up to him and said, \\\"You are going to cover up all the grass.\\\" The defendant replied, \\\"It will all be covered up before I get through.\\\"\\nIn the absence of any act in reckless or willful disregard of plaintiff's rights, or the doing of any unnecessary or purely malicious injury to the plaintiff, we can see nothing in the language used by the defendant to indicate any willful intention to injure the plaintiff.\\nFrom the whole circumstances it is clear that the defendant claimed and believed that he had the right to construct the ditch complained of. He consistently asserted that right before the jury, and offered substantial evidence in support of it. While the question was resolved against him, we find no warrant for saying that he did not have reasonable grounds for belief in his right. The evidence presents no feature of malice or wantonness. There was nothing to indicate that the construction of the ditch by the defendant was done to harass, vex, annoy, or injure the plaintiff. At the trial it was clearly shown that the defendant had a right of way over the plaintiff's land for conducting water for irrigation. At the time the ditch was constructed the the plaintiff denied such right, and forbade the defendant \\\"to make any ditch\\\" on his land. It was not then a question of the particular location of the ditch. The circumstances do not support the assertion that the defendant willfully and maliciously constructed the ditch over the best part of plaintiff's lands for the purpose of unnecessarily injuring the plaintiff when he could have served his own purposes equally well by constructing it at another place.\\n\\\"Exemplary, punitive, or vindictive damages are such damages as are in excess of the actual loss, and are allowed where a tort is aggravated by evil motive, actual malice, deliberate violence, oppression or fraud.\\\" Murphy v. Booth, 36 Utah 285, 103 P. 768, 770.\\nWhether there is evidence justifying exemplary damages is a question of law for the court, and, where there is no evidence, it is error to submit the issue to the jury. Moody v. Sindlinger, 27 Colo. App. 290, 149 P. 263; Rugg v. Tolman, 39 Utah 295, 117 P. 54, 57.\\nIn Rugg v. Tolman, supra, it was laid down that:\\n\\\"The law does not, and in the nature o\\u00ed things cannot, allow exemplary or punitive damages for mere negligence, although gross, nor for mistakes that may affect the rights of others, unless some act or acts indicative of bad motives or an intention to oppress or wrongfully vex and harass another is made manifest.\\\"\\nWe find no basis in the evidence for the allowance of exemplary damages, and conclude that the trial court erred in submitting that question to the jury.\\nFor this error the judgment appealed from cannot be sustained. It is not necessary, however, to unconditionally reverse the judgment and order a new trial.\\nIt is the judgment of this court that, unless the plaintiff, within 20 days from the filing of this decision, shall file in this court a remittitur of $1,000' of his judgment as of the date of its rendition, the judgment appealed from be reversed and a new trial granted, and that appellant recover his costs on appeal. If such remittitur be filed, the judgment shall be modified in accordance therewith, and, as so modified, affirmed, with no costs allowed to either party.\\nSTRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.\"}"
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+"{\"id\": \"8870390\", \"name\": \"ROBLES v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"name_abbreviation\": \"Robles v. Industrial Commission\", \"decision_date\": \"1931-03-12\", \"docket_number\": \"No. 5078\", \"first_page\": \"408\", \"last_page\": \"410\", \"citations\": \"77 Utah 408\", \"volume\": \"77\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:11:29.489239+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRAUP, ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\", \"parties\": \"ROBLES v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"head_matter\": \"ROBLES v. INDUSTRIAL COMMISSION OF UTAH et al.\\nNo. 5078.\\nDecided March 12, 1931.\\n(296 P. 600.)\\nA. M. Moore and Soren X. Christensen, both of San Francisco, Cal., for plaintiff.\\nBagley, Judd & Ray, of Salt Lake City, and George P. Parker, Atty. Gen., for defendants.\", \"word_count\": \"587\", \"char_count\": \"3599\", \"text\": \"CHERRY, C. J.\\nRamigio Robles was killed by accident in the course of his employment by the Southern Pacific Company at Lucin, Utah, on October 4, 1928. His mother, the plaintiff herein, a resident of Mexico, claiming to have been dependent upon her deceased son for her support, applied to the Industrial Commission for compensation on account of his accidental death. Her application was denied, and the Industrial Commission, upon a finding that there were no dependents of the deceased employee, ordered the employer to pay $975.31 into the state treasury as provided in such cases by section 3140, Comp. Laws 1917, as amended by Laws 1921, c. 67, the Workmen's Compensation Act. The plaintiff has brought the case here by writ of review, contending that the Industrial Commission, under the evidence, was bound in law to find that she was a dependent of the deceased and entitled to compensation.\\nThe only question in dispute before the Industrial Commission was the dependency of the plaintiff. Other essentials to compensation were admitted. With the consent of the parties, and upon the order of the commission, a hearing was had at Los Angeles, Cal., before the Industrial Accident Commission of California, on December 27, 1929, at which a brother of the deceased workman gave testimony consisting entirely of hearsay that the deceased for several years before his death had been making contributions to his mother's support. Upon the grounds that the proof of dependency consisted entirely of hearsay evidence, the commission on January 24, 1930, denied the plaintiff's application. On February 13, 1930\\u00a1, a petition for rehearing was presented to the commission, which was denied on April 29, 1930. On May 5, 1930, there were filed with the commission certain purported depositions of several witnesses taken in Mexico, and some unproved letters purporting to have been written by the deceased employee in his lifetime. On May 8, 1930, the commission made an order rescinding its former order denying a rehearing and reopened the case to consider the depositions and other documents submitted on behalf of the applicant. On June 28, 1930', the commission made its final order against the claim of the alleged dependent.\\nIn support of the decision and order of the commission it is contended: (1) That the evidence offered by the applicant was all incompetent, and (2) that, if the same was not incompetent, it was so vague, indefinite, and unsatisfactory that the commission had ample reason for declining to make a finding of dependency upon it.\\nBoth propositions must be sustained. The so-called depositions were taken in Mexico in the Spanish language without any notice, stipulation, or order authorizing the taking of the same. There was no appearance by the employer at the taking of the depositions, and no opportunity for cross-examination. The proofs offered amounted to no more than ex parte affidavits, and did not constitute competent evidence upon which an award could be based. The contents of the depositions were mere general statements that the deceased had made contributions to his mother, and that she depended on him, with no particulars as to the time or amount of the contributions.\\nThe order of the Industrial Commission is affirmed.\\nSTRAUP, ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\"}"
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+"{\"id\": \"8870404\", \"name\": \"VAN COTT v. STATE TAX COMMISSION et al.\", \"name_abbreviation\": \"Van Cott v. State Tax Commission\", \"decision_date\": \"1939-12-28\", \"docket_number\": \"No. 5902\", \"first_page\": \"264\", \"last_page\": \"271\", \"citations\": \"98 Utah 264\", \"volume\": \"98\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:51:09.066162+00:00\", \"provenance\": \"CAP\", \"judges\": \"McDONOUGH and PRATT, JJ., concur.\", \"parties\": \"VAN COTT v. STATE TAX COMMISSION et al.\", \"head_matter\": \"VAN COTT v. STATE TAX COMMISSION et al.\\nNo. 5902.\\nDecided Dec. 28, 1939.\\n(96 P. 2d 740.)\\nW. Q. V<m Cott, of Salt Lake City, for plaintiff.\\nNed War nock, of Salt Lake City, for defendants.\", \"word_count\": \"2499\", \"char_count\": \"15376\", \"text\": \"WOLFE, Justice.\\nThis case was appealed from this court by the Tax Commission to the Supreme Court of the United States which stated in its decision 806 U. S. 511, 59 S. Ct. 605, 607, 83 L. Ed. 950, as follows:\\n\\\"We have now re-examined and overruled the doctrine of New York ex rel Rogers v. Graves in Graves v. New York ex rel O'Keefe, 306 U. S. 466, 59 S. Ct. 595, 83 L. Ed. [927, 120 A. L. R. 1466], this day decided. Salaries of employees or officials of the Federal Government or its instrumentalities are no longer immune, under the Federal Constitution, from taxation by the States. Whether the Utah income tax, by its terms, exempts respondent, can now be decided by the State's highest court apart from any question of Constitutional immunity, and without the necessity, so far os the Federal Constitution is .concerned, of attempting to divide functions of government into those which are essential and those which are non-essential.\\\" (Italics added.)\\nThe case on remittitur from the United States Supreme Court is here for the purpose of deciding whether, in view of the holding that all federal salaries may be subjected to a non-discriminating state income tax, it would change our opinion that Van Cott's salary was earned in an essential governmental function and, therefore, exempt under Sec. 80-14-4, R. S. U. 1933. The facts are stated in this court's opinion contained in 95 Utah 43, 79 P. 2d 6, 7, to which reference is made for them. That case interpreted the words \\\"essential governmental function\\\" as meant by the Legislature. It held that \\\"the statute excluding governmental salaries, wages, and commissions for services rendered in connection with the exercise of an essential governmental function is a recognition of the rule of immunity announced by the Supreme Court of the United States,\\\" etc. And again:\\n\\\"From these cases, the rule may be deduced that each government is denied the power to tax the essential governmental functions of the other, and this limitation of power has extended to salaries, wages, or compensation paid to officers or employees of the government itself or an instrumentality which it supports in the exercise of essential governmental functions\\\" (Italics added.)\\nIt was then decided that the work of the Reconstruction Finance Corporation and of the Regional Agricultural Credit Corporation of Salt Lake City, because of the nature of the functions of these two instrumentalities in the severe years of . 1932 and following, should be held as essential within the meaning of Sec. 80-14-4 (g), R. S. U. 1933. Thus, this court has already determined that the Legislature intended to exclude Van Cott's salary as being earned for services rendered in connection with the ex\\u00e9rcise of essential governmental functions. The fact that the Supreme Court has since held that there is no immunity of Federal salaries from a state's non-discriminatory income tax, whether earned in an essential or non-essential function, cannot affect the distinction which our Legislature sought to draw by the use of the words \\\"essential governmental function\\\" in 80-14-4 (g), even though the Legislature may have acted on an erroneous assumption that federal salaries earned in connection with such functions were immune from state taxation and, for this reason, exempted them. The Legislature did not make the classification a contingent one, depending on whether or not the United States Supreme Court adhered to its formerly announced rule that such salaries were immune. It drew a definite exemption based on what now appears afterward to have been a wrong theory of immunity, but, for better or worse, it definitely drew that line regardless of whether or not its reasons were erroneous. Consequently, we hold that this court has already decided the question presented at this last hearing, in the case of Van Cott v. State Tax Commission of Utah, 95 Utah 48, 79 P. 2d 6. That decision held that Van Cott's salary as agency counsel for the Salt Lake Agency of the Reconstruction Finance Corporation, and as counsel for the Regional Agricultural Credit Corporation of Salt Lake City, was earned \\\"for services rendered in connection with the exercise of an essential governmental function,\\\" because the functions exercised by both those corporations were, at least in our present period of economic stress, essential governmental functions. We adhere to that conclusion because if the decision correctly interpreted the intent of the Legislature in using the phrase \\\"essential government functions,\\\" such interpretation is still correct regardless of any change in decision of the United States Supreme Court. We therefore repeat the order remanding the case to the Tax Commission with instructions to redetermine the tax in accordance with the views expressed in our former decision in this case.\\nMcDONOUGH and PRATT, JJ., concur.\"}"
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+"{\"id\": \"8870560\", \"name\": \"STATE v. J. B. & R. E. WALKER, Inc., et al.\", \"name_abbreviation\": \"State v. J. B. & R. E. Walker, Inc.\", \"decision_date\": \"1941-09-10\", \"docket_number\": \"No. 6179\", \"first_page\": \"523\", \"last_page\": \"533\", \"citations\": \"100 Utah 523\", \"volume\": \"100\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:22:10.579363+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOLFE and LARSON, JJ., concur.\", \"parties\": \"STATE v. J. B. & R. E. WALKER, Inc., et al.\", \"head_matter\": \"STATE v. J. B. & R. E. WALKER, Inc., et al.\\nNo. 6179.\\nDecided September 10, 1941.\\n(116 P. 2d 766.)\\nSee 39 C. J. Master and Servant sec. 330.\\nFor constitutionality of statute regulating time of payment of wages, see notes to 12 A. L. R. 1396.\\nSee also 31 Am. Jur. 1088 et seq.\\nIrvine, Skeen & Thurman, of Salt Lake City, for appellant.\\nGrover A. Giles, Atty. Gen., and Zelph S. Colder and Zar E. Hayes, Asst. Attys. Gen., for respondent.\", \"word_count\": \"3259\", \"char_count\": \"19218\", \"text\": \"McDonough, justice.\\nAppellant, R. E. Walker, was found guilty in the district court of the crime of failing to pay wages, in violation of Section 12, Chapter 60, Laws of Utah 1937. The complaint charged the violation of that portion of said Section 12 which provides that\\n\\\"any employer who, shall refuse to pay the wages due and payable when demanded, as in this act provided, or who shall falsely deny the amount thereof, or that the same is due, with intent to secure for himself, or any other person, any discount upon such indebtedness, with intent to annoy, harass, oppress, hinder, delay or defraud, the person to whom such indebtedness is due, shall in addition to any other penalty imposed upon him by this act, be guilty of a misdemeanor, punishable by a fine of not less than $50 and not exceeding $100.\\\" Subd. c.\\nThe act requir\\u00e9s payment of wages to employees semimonthly, in lawful money of the United States, except where an employee is hired on a yearly salary basis, in which case.payment may be made monthly; and, in effect, requires on demand immediate payment of wages upon discharge or resignation of an employee.\\nSection 4 of Chapter 60, supra, provides:\\n\\\"None of the provisions of this act shall apply to employers or employees engaged in farm, dairy, agricultural, viticultural or horticultural pursuits or to banks and mercantile houses, or to stock or poultry raising or to household domestic service.\\\"\\nThis appeal was taken from a judgment, made and entered pursuant to a verdict of guilty, on the sole ground that the law upon which the conviction was based is unconstitutional in that by virtue of the exclusion provisions of Section 4, just quoted, the legislature enacted a special law which denies to appellant the equal protection of the law in violation of both the Constitution of this state and the Constitution of the United States.\\nAppellants main contention centers around that part of Section 4 which excludes from the operation of the act \\\"banks and mercantile houses,\\\" it apparently being conceded that the exclusion of agricultural and domestic employment from the operation of labor laws generally has heen upheld almost uniformly. The question is, therefore, narrowed to whether the exclusion of \\\"banks and mercantile houses\\\" does constitute the act discriminatory class legislation.\\nAlthough many states have passed legislation with respect to the payment of wages, our statute appears to be unique in expressly excluding from the operation thereof \\\"banks and mercantile houses.\\\" Nor does the history of the enactment of the legislation reveal definitely just why such exclusion was made.\\nThe original statute in this state on payment of wages was enacted in 1919, Laws of Utah 1919, Chapter 71. The hill as introduced, Senate Bill 61, did not contain the phrase \\\"banks and mercantile houses\\\"- in the excluding provision of the act. However, that phrase was inserted as an amendment from the floor of the Senate before the bill was passed. And an additional excluding phrase was also added immediately following \\\"banks and. mercantile houses,\\\" to wit:\\n\\\"Or other employment where an agreement exists between an employer and employee providing for different terms of pay.\\\"\\nThe statute, as passed, continued until the Revised Statutes of Utah 1933 were enacted. At that time the phraseology of the ecluding section of the statute was changed slightly to read as follows (Section 49-9-8, R. S. U. 1933) :\\n\\\"None of the provisions of this chapter shall apply to the state, or to any county, incorporated city or town, or other political subdivision, or to employers and employees engaged in farm, dairy, agricultural, viticultural or horticultural pursuits, or to banks and mercantile houses, or to stock or poultry raising, or to household domestic service, or to any other employment, where an agreement exists between employer and employee providing for different terms of payment.\\\"\\nThis statute continued in force until the enactment of the law under consideration in 1937.\\nThis 1937 statute did not have any \\\"excluding\\\" provision as it was originally introduced and passed by the House (House Bill 11). The Senate, however, made certain amendments relative to the application of the bill to certain types of labor. An amendment was made first excluding from the operation of the bill \\\"employees of the federal or state government or any political subdivision of the state government.\\\" Then was added the words \\\"nor to any of the following businesses and industries, agriculture, livestock and mercantile.\\\" This latter phrase was immediately amended by striking the words \\\"and mercantile.\\\"\\nThe House refused to concur in the various amendments made by the Senate and it became necessary for the legislature to appoint three Conference Committees before an agreement could be reached with respect to the exclusion feature of the bill. As finally accepted the bill contained practically the same exclusion clause as did the old statute, except that the phrase \\\"or to any other employment, where an agreement exists between employer and employee providing for different terms of payment,\\\" was omitted, as also was any reference to the state or its political subdivisions, the act being limited to private employments.\\nWe discover, then nothing in the history of the legislation, nor in the proceedings relative to its enactment, which casts any light on the reason for excluding mercantile houses from its operation; though they do reveal that so excluding them was a matter giving rise to differences of opinion, if not of recorded debate.\\nAppellant's contention as noted is the exclusion of \\\"banks and mercantile houses\\\" renders the statute unconstitutional as discriminatory class legislation. Cases in support of such contention are cited: An Illinois statute was declared unconstitutional as class legislation in Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62, 22 L. R. A. 340, 37 Am. St. Rep. 206. The statute there applied to every \\\"manufacturing, mining, quarrying, lumbering, mercantile, street, electric and elevated railway, steamboat, telegraph, telephone and municipal corporation and every incorporated express company and water company.\\\" Act April 23, 1891. It was held invalid because it did not apply \\\"to all corporations existing within the state\\\" but excluded several without any apparent reasonable basis. In Indiana several statutes relating to payment of wages have been held unconstitutional: Dixon v. Poe, 159 Ind. 492, 65 N. E. 518, 60 L. R. A. 308, 95 Am. St. Rep. 309 (the act invalidated applying only to merchants and laborers in coal mines); Toledo, St. L. & W. R. Co. v. Long, 169 Ind. 316, 82 N. E. 757, 758, 124 Am. St. Rep. 226 (where the statute applied to every \\\"company, corporation or association\\\" and required only that such businesses pay \\\"employees, engaged in manual or mechanical labor\\\" at least once a month); Smith v. Ohio Oil Co., 43 Ind. App. 735, 86 N. E. 1027, affirming the position taken in Toledo, St. L. & W. R. Co. v. Long, supra; State v. Martin, 193 Ind. 120, 139 N. E. 282, 26 A. L. R. 1386 (in which the penalty provision was held to render the statute unconstitutional); and Superior Laundry Co. v. Rose, 193 Ind. 138, 137 N. E. 761, 139 N. E. 142, 26 A. L. R. 1392 (where the court reviewed the several different statutes passed by the Indiana legislature and pointed out the classifications which rendered most of them unconstitutional).\\nIn State v. Potomac Valley Coal Co., 116 Md. 380, 81 A. 686, a statute applying only to corporations engaged in mining coal or fire clay in Garrett County was held unconstitutional. In Sorenson v. Webb, 111 Miss. 87, 71 So. 273, one applying only to manufacturers and no other classes or individuals or corporations was likewise held unconstitutional. Anderson v. Uncle Sam Oil Co., 106 Kan. 483, 186 P. 198, involved a statute, held unconstitutional, which excluded steam surface railroads as well as corporations engaged in the production of farm and dairy products from its operation. With such exceptions, it applied to all corporations. The statute, however, made all corporations, with the exception noted, liable for a reasonable attorney's fee, when suit was successfully maintained under the act for the collection of wages. This view was affirmed in a later Kansas case, Livingston v. Susquehanna Oil Co., 113 Kan. 702, 216 P. 296. See, also, State v. Barba, 132 La. 768, 61 So. 784, 45 L. R. A., N. S., 546, Ann. Cas. 1914D, 1261; State v. LeBarron, 24 Wyo. 519, 162 P. 265, Ann. Cas. 1918D, 998.\\nOn the other hand, are many cases upholding as constitutional various classifications in statutes requiring prompt payment of wages. In New York the statute provides a different time for payment of employees on steam surface railroads (twice a month) than for employees in most other corporations (once a week). This statute was upheld in New York Cent. & H. R. R. Co. v. Williams, 199 N. Y. 108, 92 N. E. 404, 409, 35 L. R. A., N. S., 549, the court stating:\\n\\\"The discussion thus far has related to the contention of the appellant that the enactments in question deprive the parties of liberty and property without due process of law. The objection that they operate as a denial of the equal protection of the laws is equally untenable. A classification of corporations with reference to their relations to the public is manifestly reasonable. No other corporations occupy precisely the same relation to the public as steam surface railroad companies, and the fact that no other corporations may have been subjected to the same requirement in respect to the payment of wages does not invalidate the requirement. As long as the classification has a basis in reason, and all corporations of the same class are treated alike, the action of the Legislature may not be condemned by the courts for inequality.\\\"\\nIn People v. Interborough Rapid Transit Co., 169 App. Div. 32, 154 N. Y. S. 627, and in People v. Grass, 257 App. Div. 1, 11 N. Y. S. 2d 803, 805, it was further brought to light that the New York Statute, in addition to requiring different times of payment for industries also classified the \\\"employes\\\" who were to receive the benefits of such act by defining the term \\\"employe\\\" as \\\"a mechanic, workingman or laborer working for another for hire.\\\"\\nA Missouri statute providing that \\\"all corporations doing-business in this state, which shall employ any mechanics, l\\u00e1borers or other servants, shall pay the wages of such employes as often as semi-monthly,\\\" Laws Mo. 1911, p. 150, \\u00a7 1, was upheld as constitutional. State v. Missouri Pac. R. Co., 242 Mo. 339, 147 S. W. 118; State v. Missouri K. & T. Ry. Co., 242 Mo. 380, 147 S. W. 130; Smith v. Townley Mfg. Co., Mo. Sup., 218 S. W. 870.\\nAnd a statute very similar in terms to the Missouri statute was upheld by the Arkansas Supreme Court in Arkansas Stave Co. v. State, 94 Ark. 27, 125 S. W. 1001, 27 L. R. A., N. S., 255, 140 Am. St. Rep. 103.\\nIn State v. Cullom, 138 La. 395, 70 So. 338, followed in State v. McCarroll, 138 La. 454, 70 So. 448, the court held a statute constitutional where it applied only to. industries having ten or more employees.\\nIn Lawrence v. Rutland Railroad Company, 80 Vt. 370, 67 A. 1091, 15 L. R. A., N. S., 350, 13 Ann. Cas. 475, a Vermont statute was involved which provided that\\n\\\"a mining, quarrying, manufacturing, mercantile, telegraph, telephone, railroad or other transportation corporation, and an incorporated express, water, electric light or power company doing and transacting business in the state, shall pay each week.\\\" Laws Vt. 1906, No. 117.\\nThis statute was upheld as not being class legislation. Compare the statute here involved with the statute held unconstitutional in Braceville Coal Co. v. People, supra.\\nIn Seeleyville Coal & Mining Co. v. McGlosson, 166 Ind. 561, 77 N. E. 1044, 117 Am. St. Rep. 396, 9 Ann. Cas. 234, an Indiana statute which required employers engaged in mining or in manufacturing any article of merchandise to pay their employees every two weeks was held to be constitutional. (Compare with other Indiana cases heretofore cited.)\\nFor other classifications, see Wynne v. Seaboard Air Line Ry., 96 S. C. 1, 79 S. E. 521, Ann. Cas. 1916B, 133; Withey v. Bloem, 163 Mich. 419, 128 N. W. 913, 35 L. R. A., N. S., 628.\\nThe foregoing and other cases are discussed in annotations in 15 L. R. A., N. S., 350; 27 L. R. A., N. S., 255; 35 L. R. A., N. S., 549; 12 A. L. R. 612, 614. See, also, 16 R. C. L. 503, \\u00a7 71.\\nThe criteria which must guide us to a solution of the question in the instant case are not, in this jurisdiction, in doubt.\\n' \\\"A classification is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters included as compared to those excluded from its operation, provided the differentiation bears a reasonable relation to the purposes to be accomplished by the act.\\n\\\"In order to see whether the excluded classes or transactions are on a different basis than those included, we must look at the purpose of the act. The objects and purposes of a law present the touchstone for determining proper and improper classifications.\\n\\\"It is only where some persons or transactions excluded from the operation of the law are as to the subject matter of the law in no differentiable class from those included in its operation that the law is discriminatory in the sense of being arbitrary and unconstitutional. If a reasonable basis to differentiate those included from those excluded from its operation can be found, it must be held constitutional.\\\" State v. Mason, 94 Utah 501, 78 P. 2d 920, 923, 924, 117 A. L. R. 330.\\nA basis for an approach to the problem here is the rule enunciated in 12 Am. Jur. \\u00a7 521, p. 217:\\n\\\"Before a court can interfere with the legislative judgment, it must be able to say that there is no fair reason for the law that would not require with equal force its extension to others which it leaves untouched.\\\"\\nCan we say that any fair reason for the law in question which applies to employers and employees generally within the state would necessarily require its extension to banks and mercantile houses ? We think not. In the case of Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 57 S. Ct. 868, 877, 81 L. Ed. 1245, 109 A. L. R. 1327, the court said:\\n\\\"In establishing a system of unemployment benefits the legislature is not bound to occupy the whole field. It may strike at the evil where it is most felt [citing numerous cases], or where it is most practicable to deal with it [citing cases]. It may exclude others whose need is less [citing cases], or whose effective aid is attended by inconvenience which is greater [citing cases].\\n\\\"As we cannot say that these consideration did not lead to the selection of the classes of employees entitled to unemployment benefits, and as a state of facts may reasonably be conceived which would support the selection, its constitutionality must be sustained.\\\"\\nWith such factors in mind we examine the classification here attacked to determine whether \\\"a state of facts may reasonably be conceived which would support the selection.\\\" The evident purpose of the act is to assure to employees prompt payment, in lawful money of the United States, of the wages they are entitled to receive. The protection afforded the employee thereby is twofold: He is protected against a loss of the wages earned, which might attend upon payment thereof at long or irregular intervals, thus leaving him with a substantial, rather than a small, sum due him in case of the eventual inability or unwillingness of his employer to make payment; and it gives him rather than his employer the use of his earnings at a reasonable time after they are earned.\\nIn attempting to give the protection afforded the employee by the act, the legislature conceivably may have considered that in the classes included within the act, there are employed more seasonal or casual workers than in the excluded classes, which workers would be more greatly inconvenienced by delay in payment on conclusion of their services and who because of such kind of employment would be less able financially to secure necessities between less frequent paydays than those steadily employed. As to banks, the financial responsibility of the employer and the laws relative to banking reserves and bank examinations clearly might justify regarding their employees as a class to be better protected than any included group against loss of earnings, while the kind of workers employed might readily mark them as a group less in need of enforced frequent payment, than any other. As to mercantile houses, they carry on hand a stock of merchandise to which the employee could have recourse for eventual payment. Too, the fact that mercantile houses are dependent t\\u00f3 a great extent in securing and retaining the good will of the buying public of a community and hence would to that end pay promptly the earnings of their workers, may have properly influenced the legislature in excluding them. Indeed, legislative investigation may have revealed that, whatever the motive actuating merchants, they do so pay and their employees are less in need of legislative aid than those in the included groups. We do not judicially know the contrary, and one who assails a legislative classification as arbitrary has the burden of showing it to be such.\\nA further reason for the exclusion suggests itself, namely: The merchandising houses which transact a credit business do so on a monthly basis; hence to require them to pay employees more frequently than monthly might well be \\\"attended by inconvenience which is greater,\\\" than in other occupations and prompt monthly payment, as pointed out, may have been found to be uniformly customary.\\nWhile there may be certain employees in banks and mercantile houses who do exactly the same work as some employees in other industries, and while there may be instances in which employees in banks or mercantile establishments are not adequately protected against loss of their wages, nevertheless such discrimination is only a result of the legislature not being able to make a perfect classification. As stated by the New York Court in New York C. & H. R. R. Co. v. Williams, supra:\\n\\\"As long as the classification has a basis in reason, and all of the same class are treated alike, the action of the Legislature may not he condemned by the courts for inequality.\\\" (Italics added.)\\nWe are unable to say that the act evidences a mere arbitrary selection of the excluded classes. It follows that the judgment of the trial court should be affirmed. It is so ordered.\\nWOLFE and LARSON, JJ., concur.\\nMOFFAT, C. J., and PRATT, J., dissent.\"}"
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+"{\"id\": \"8870687\", \"name\": \"HARDY v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"name_abbreviation\": \"Hardy v. Industrial Commission of Utah\", \"decision_date\": \"1936-05-26\", \"docket_number\": \"No. 5774\", \"first_page\": \"561\", \"last_page\": \"568\", \"citations\": \"89 Utah 561\", \"volume\": \"89\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:50:07.939456+00:00\", \"provenance\": \"CAP\", \"judges\": \"ELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON, and WOLFE, JJ., \\u00e9oncur.\", \"parties\": \"HARDY v. INDUSTRIAL COMMISSION OF UTAH et al.\", \"head_matter\": \"HARDY v. INDUSTRIAL COMMISSION OF UTAH et al.\\nNo. 5774.\\nDecided May 26, 1936.\\n(58 P. [2d] 15).\\nFoote & Dawson, of Salt Lake City, for plaintiff.\\nJoseph Chez, Atty. Gen., and Gardner, Latimer & Evans, of Salt Lake City, for defendants.\", \"word_count\": \"2158\", \"char_count\": \"13066\", \"text\": \"MOFFAT, Justice.\\nThis is an appeal from a decision of the Industrial Commission of Utah, denying an award to the plaintiff.\\nOn the 8th day of July, 1928, the plaintiff wrote a letter to the Industrial Commission of Utah in which he in substance saidi: On October 25, 1927, while working for Philip Biesinger, he was injured, that a disability resulted, an operation had been performed, that the Commercial Casualty Insurance Company assumed responsibility as insurance carrier until May 21, 1928, when the insurance carrier denied further responsibility; that he was still under a doctor's care and unable to work. He indicated that he thought he was entitled to compensation until he was able to work, and asked for a hearing on the case. This application was filed by the Industrial Commission on July 10, 1928, and was within time.\\nThe injury resulted in periodical temporary disability. The record discloses that without the necessity of a formal hearing the insurance carrier accepted responsibility and during some periods paid compensation. The matter moved on until 1935, when plaintiff again found it necessary to undergo an operation arising out of the original injury, and filed an application for further compensation.\\nThe findings of the Industrial Commission state the injury, the history of the cause, and indicate, but does not in so many words find, that the commission is \\\"without jurisdiction\\\" to hear the application because more than six years have elapsed since the date of the injury. It is evident that belief in want of jurisdiction was the basis of the decision, and plaintiff states that \\\"the sole question for review is whether or not the Industrial Commission had jurisdiction to entertain the hearing on August 23, 1935.\\\" It was upon this question the case was argued and submitted.\\nIt is agreed that the letter of July 8,1928, was within time and was a sufficient application for compensation under the Workmen's Compensation Act and that the Industrial Commission had and tpok jurisdiction of the cause at that time.\\nThe statutory sections affecting this cause, in Comp. Laws Utah 1917 (section 3061 et seq.) and amendments thereto, have been carried forward into R. S. Utah 1933 (42-1-1 et seq.). The changes do not affect the issues in this cause. Reference will therefore be made to the 1933 R. S. Utah sections.\\nDefendants argue that the Utah statute bars the claim of plaintiff as a matter of jurisdiction, for the reason his application of August 23, 1935, for further medical treatment was not filed with the Industrial Commission until more than six years had passed after the date of the injury.\\nThe findings of the commission are:\\n\\\"I. The applicant, on October 25, 1927, was employed by Philip Biesinger a building contractor; Biesinger was an employer of labor subject to the Workmen's Compensation Act and had insured his liability for Workmen's Compensation insurance with the Commercial Casualty Insurance Company.\\n\\\"II. On said date while in the course of his employment, applicant fell from a saw horse and in falling, bumped the shin on his right leg. A period of temporary total disability resulted from the injury, which was more severe than would ordinarily have been expected, because of the fact that the bump on the shin lighted up an old quiescent osteomyelitis in the lower end of the right tibia which was caused by an old compound fracture of that bone.\\n\\\"III. The insurance carrier assumed liability and paid compensation as by law provided, including the necessary medical expense incurred in healing the injury. At the conclusion of the period of temporary total disability and at the time applicant was discharged, it was recommended by the attending physician that a further operation be performed. The insurance carrier agreed at that time, which was during the winter of 1929-1930, to pay the cost of such an operation should it be performed. The operation was not performed at that time and the matter was not again called to the attention of either the employer or his insurance carrier until more than six years had elapsed subsequent to the injury, and then only after the applicant had gone to another surgeon and had the operation performed. The insurance carrier of Biesinger was then approached and requested to pay for the operation and other medical care incident to said operation. This the Commercial Casualty Insurance Company refused to do.\\n\\\"IV. Application for further compensation and further medical service was not filed with the Commission for more than 6 years after the date of the injury. Neither the employer nor his insurance carrier were requested to furnish the second operation.\\\"\\nDefendants maintain that section 42-1-62, R. S. Utah 1933, is controlling and determines the jurisdiction of the Industrial Commission of Utah. It is argued that section 42-1-62 is a limitation on section 42-1-72. That part of the former section relating to partial disability reads as follows:\\n\\\"Where the injury causes partial disability for work, the employee shall receive, during such disability and for a period of not to exceed six years, beginning on the fourth day of disability, a weekly compensation equal to 60 per cent of the difference between his average weekly wages before the accident and the weekly wages he is able to earn thereafter, but not more than $16 per week.\\n\\\"In case the partial disability begins after a period of total disability, the period of total disability shall be deducted from the total period of compensation.\\n\\\"In no case shall the weekly payments continue after the disability ends, or the death of the injured person.\\\"\\nThen follows a provision relating to, and a specification of, particular injuries with the maximum rate of weekly payments specified for such injuries and the periods for which the payments shall continue, \\\"and shall be in addition to the compensation hereinbefore provided for temporary total disability.\\\"\\nIf defendants' position has any tenability at all, it must be made out of a construction of section 42-1-62, R. S. Utah, supra. Cases are cited in defendants' brief of the type of: Utah Consolidated Mining Company v. Industrial Commission, 57 Utah 279, 194 P. 657, 16 A. L. R. 458; Spring Canyon Coal Company v. Industrial Commission, 58 Utah 608, 201 P. 173; Aetna Life Ins. Co. v. Industrial Commission, 66 Utah 235, 241 P. 223. Others are cited, and more of the same type as suggested by counsel could have been added.\\nEvidently the cases were cited while counsel was maintaining the position that the application filed July 8, 1928, was not sufficient to confer or invoke the jurisdiction of the Industrial Commission, which position was later abandoned. The application hereinbefore summarized, though informal, is ample to invoke the jurisdiction of the commission. It does not fall within the type of documents referred to in the cases of Aetna Life Ins. Co. v. Industrial Commission, supra, nor Rezaldo v. Industrial Commission, 61 Utah 412, 213 P. 1083.\\nIn the instant case the letter dated July 8, 1928, was addressed to the Industrial Commission. It gave the date of the injury, the party for whom he was working, the date he became disabled, the character and location of the wound, the fact that the Commercial Casualty Company had assumed responsibility and had made payments of compensation until a specified date and had thereafter refused, that he was under a doctor's care and unable to work, and that he \\\"would like a hearing on this case.\\\" This was filed within the year from the date of the injury. The Industrial Commission acquired jurisdiction at that time.\\nThe question remaining is, Did the Industrial Commission lose jurisdiction upon the expiration of six years from the date of the injury under section 42-1-62, supra? We think it did not. Having once acquired jurisdiction under the provisions of section 42-1-72, R. S. Utah 1933, jurisdiction is continuing; it being therein provided that:\\n\\\"The powers and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings, or orders with respect thereto, as in its opinion may be justified.\\\"\\nWe discover no conflict between section 42-1-62 and section 42-1-72, supra. The latter section is one relating to jurisdiction only. The former relates to the amount to be paid and period during which the payment shall extend. \\\"Where the injury causes partial disability for work, the employee shall receive during such disability and for a period of not to exceed six years\\\" the compensation provided by the statute. Reading the whole section, it is apparent the part under consideration and last above quoted has the same effect and meaning as though it read:\\n\\\"When the injury causes partial disability for work, the employee shall receive, during such disability not to exceed six years, the compensation specified.\\\"\\nThe limitation provided by the section relates to the disability period and not the calendar period dating from the injury.\\nThe language following in the section carries the same implication:\\n\\\"In case the partial disability begins after a period of total disability, the period of total disability shall be deducted from the total period of compensation.\\\" (Italics added.)\\nIt is the disability period for which compensation is paid. The last clause of the section further fortifies the construction herein made. It is there said:\\n\\\"The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as specified in this section, and in no event shall more than a total of $5,000 be required to be paid.\\\" (Italics added.)\\nThe Workmen's Compensation Act, as the name indicates, provides for compensation for loss of earnings during disability periods, whether partial, total, temporary, or permanent. We do not recall any decision of this court in which the particular question here presented has been determined, and our attention has not been called to a case construing the terms of the statute nor one in which the construction contended for by defendants has been made.\\nThe period of disability is the important matter to the employee. It is also important to make effective the purpose of the statute. Payment of compensation for loss of earning capacity arising from an accidental injury arising out of and in the course of employment within the field to which the statute is applicable is not a payment for damages. The period of temporary total disability arising out of the specifically named injuries and the periods for which the 60 per cent of the average weekly wage is to be paid is in addition to the partial disability period provided for in the first part of section 42-1-62, supra.\\nIt would be an unusual construction to say that an employee injured by accident in the course of his employment should be denied compensation because an injury had apparently been surgically cured, but which was in fact quiescent for a period and without an additional injury, but, in the course of progress of the injury, it again became a disability precluding remunerative employment, that the employee should be denied compensation for the subsequent period. Some injuries apparently only temporary become permanent, and disabling injuries for a period may be partial and then become total. Injuries thought to be total may become temporary and even complete recovery may result. The purpose of section 42-1-72, supra, is to take care of changed conditions or developments of some kind justify- \\u00edng a modification of a previous award. This may be in favor of the applicant or against him or in favor of the insurance carrier or against it or him.\\nIn the instant case, the application and the hearing thereon, acceptance of liability by the carrier placed the matter under the jurisdiction of the commission, and whether there were express findings or an award or not, the commission had power and jurisdiction to make or deny an award as the merits of the case might determine. It is just as important that the commission should have an opportunity to reconsider its findings or to make findings if the making of findings has been temporarily unnecessary because of agreement as it is to review and consider its findings on a previous award when new conditions required the exercise of the continuing jurisdiction conferred by the statute.\\nThe Industrial Commission is as a matter of law vested with jurisdiction to proceed to hear the application upon its merits. The order of the Industrial Commission is vacated and the cause remanded for further proceedings. Plaintiff is entitled to have his costs taxed against the Commercial Casualty Insurance Company. It is so ordered.\\nELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON, and WOLFE, JJ., \\u00e9oncur.\"}"
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+"{\"id\": \"8870833\", \"name\": \"TINTIC UNDINE MINING CO. v. ERCANBRACK et al.\", \"name_abbreviation\": \"Tintic Undine Mining Co. v. Ercanbrack\", \"decision_date\": \"1938-01-07\", \"docket_number\": \"No. 5872\", \"first_page\": \"561\", \"last_page\": \"577\", \"citations\": \"93 Utah 561\", \"volume\": \"93\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:51:12.626292+00:00\", \"provenance\": \"CAP\", \"judges\": \"FOLLAND, C. J., and HANSON and MOFFAT, JJ., concur.\", \"parties\": \"TINTIC UNDINE MINING CO. v. ERCANBRACK et al.\", \"head_matter\": \"TINTIC UNDINE MINING CO. v. ERCANBRACK et al.\\nNo. 5872.\\nDecided January 7, 1938.\\n(74 P. [2d] 1184.)\\nSoule & Spalding, of Salt Lake City, and J. Rulon Morgan, of Provo, for appellants.\\nRobinson & Robinson, of Provo, for respondent.\", \"word_count\": \"4578\", \"char_count\": \"26177\", \"text\": \"LARSON, Justice.\\nPlaintiff brought this action in the district court of Juab county to quiet title to certain mining claims. Plaintiff's title is based upon a deed from Juab county and is founded upon a sale for delinquent general taxes for the year 1927. The validity of the tax sale proceedings is the only question involved. The trial court upheld the tax sale proceedings and entered judgment for plaintiff. Defendants appeal.\\nTheir position may be summarized thus: The assessment and sale of the property were unlawful and void because: (1) The descriptions in the assessment roll and throughout the entire tax proceedings were erroneous and insufficient. (2) The property was neither assessed nor sold in the name of the owner.\\nWe shall state the facts from which the controversy arises and then discuss the points in order. The property involved consists of two patented lode mining claims, to wit, \\\"Wind Ridge\\\" and \\\"Winridge No. 2,\\\" in the Tintic Mining District, Juab County. Patent on the two claims was issued in 1899 to appellant, Charles F. Ercanbrack, and William T. Ercan-brack, who was the predecessor in interest and title of the other appellants. This patent was recorded in the office of the county recorder in' 1909 and gives the location of the claims as \\\"Lot No. 3615, embracing a portion of Section 31, in Township 10 South, of Range 2 West, Salt Lake Meridian, containing 14.447 acres, more or less\\\" together with a metes and bounds description of each claim. The survey and certificate number is 2545 as shown by the patent. The claims were originally located at the same time and overlap. Charles F. Ercanbrack, appellant, was owner of an undivided one-fourth interest in the lode claim patented as \\\"Wind Ridge,\\\" and an undivided one-half interest in the lode claim patented as \\\"Winridge No. 2.\\\" The other patentee, William T. Ercan-brack, died. His undivided interest was distributed in undivided interests to his heirs at law, which decree of distribution was recorded in 1918. From that date until the auditor's tax deed in April, 1932, the record title stood as follows: Wind Ridge: Charles F. Ercanbrack, one-fourth interest; Ruth Ann Ercanbrack, one-fourth interest; Ruth Esther Burraston, Alta M. Walker, Olive M. Austin, and Arvilla Vetter, each one-eighth interest. Winridge No. 2: Charles F. Ercanbrack, one-half interest; Ruth Ann Ercanbrack, two-twelfths interest; Ruth Esther Burraston, Alta M. Walker, Olive M. Austin, and Arvilla Vetter, each one-twelfth interest. All of said interest were undivided.\\nFrom 1919 to 1926, inclusive, the property was assessed as one assessment to all the appellants jointly, and taxes were paid. In 1927, the assessor split the assessment into three entries. He assessed Walker, Austin, and James Burraston, a stranger to the title with \\\"\\u2154 of \\u00bd interest of 14.447 acres.\\\" He assessed Arvilla Vetter with \\\"\\u2154 of \\u00be interest in 14.447 acres.\\\" He assessed Charles F. Ercanbrack and Ruth Ann Ercanbrack with \\\"\\u2153 of \\u00bd, \\u2153 of \\u00be interest in 14.447 acres.\\\" (This is the year's assessment through which plaintiff deraigns title, and is assailed on several grounds: The assessment covers a total of 15/12 of the property; it does not show the interest of the parties in each tract or claim; an assessment is made in the name of a stranger to the title; the assessor segregated undivided interests into acreage allotments to each.)\\nIn the published notice for delinquent taxes, the assessment to Burraston, Walker and Austin is described as \\\"Wind Ridge and Wind Ridge No. 2, Lot No. 2615,\\\" and the assessment to Arvilla Vetter is described as \\\"Wind Ridge and Wind Ridge No. 2, Lot No. 3615.\\\" The italics are supplied to indicate the erroneous description. The errors in fractional parts are also carried forward here. In the published notice of the May sale in 1932, at which respondent's predecessor bought from the county, the description in the sale against Arvilla Vetter is given as in the delinquent list, but' the sale against Burraston, Walker, and Austin is given as lot No. 3615, whereas it was No. 2615 in the delinquent list. On the tax sale record, the property was listed as block 3615. The deed from the county to Miller, plaintiff's predecessor, is identical with the certificate of sale.\\nIn the findings of fact and the decree, the following factual discrepancies occur: The one claim is now designated as \\\"Winridge No. 2,\\\" its real name, but through all the tax proceedings it was carried as \\\"Wind Ridge No. 2,\\\" and in one finding as to each mining claim the number 3615 is given as a survey number, when in truth it was the lot number. In another finding the number 3615 is given as the survey number of the Wind Ridge claim, while the number 5615 is given as the survey number of the Winridge No. 2. (The survey number of both claims is 2545, as appeared of record.) Still again the findings recite that the claims are \\\"Lode number 3615, as designated by the Surveyor General.\\\" And the decree in describing the properties describes them as survey number 3615, and gives the Wind Ridge as an area of 5,509 acres and the Winridge No. 2 as 8.938 acres, although the record is silent as to the area in either claim and there is no information from which it can be computed. Summarized, the following irregularities appear in the descriptions in the proceedings: (a) Assessments made, in part, in name of stranger to title; (b) names of some owners of undivided interests are omitted in tax proceedings although such names appeared of record; (c) mining claims were assessed and described by wrong names; (d) no township, range, or section was given although the same appeared of record; (e) the surveyor general's lot number was variously given as a lot number, a survey number and a lode number; (f) the number itself throughout the proceeding was variously given as 2615, 3615, 5615; such number furnishing the only identification clues; (g) more property was assessed than existed, 15/12 in interests being assessed; (h) undivided interests upon which the taxes had been paid were sold; (i) the assessor sought to assess undivided interests in divided acreage; (j) the assessor erroneously and arbitrarily divided the overlapping acreage of two claims between them; (k) the same description is not used in the tax sale as in the assessment, nor in the tax deed as in the tax sale; nor in the deed from the county as in the tax proceedings; nor in the findings and decree as in the tax and sale proceedings. And, upon these errors, appellants contend the tax sale proceedings were and are void. At the outset we state that each of the propositions (a) to (k), inclusive, is a correct statement of facts as disclosed by the record. Do these facts, then, void the sale ?\\nIt is elemental, and settled beyond argument in this jurisdiction, that tax sale proceedings and statutes are strictis-simi juris. The sales are made exclusively under statutory authority. The seller is making a sale not coupled with an interest, and derives his authority solely from the statute, and it is derived from no rule or principle of the common law. He can have no authority to sell except as he is made the agent of the law for that purpose, and, if the steps necessary to precede his action fail, he is not invested with legal right to make the sale; if one step fails, they all fail. The rule, therefore, is that all the preliminary requirements of the statute, made conditions to the exercise of the right and power to sell, and designating the various proceedings which culminate in the sale, must have been strictly complied with. The officers who execute this power should follow the steps outlined for its exercise with precision. It is a special jurisdiction and must be strictly pursued. As was said in Wister v. Kemmerer, 2 Yeates 100, \\\"An exact and punctual adherence to the laws can alone divest the title of lands on a sale for nonpayment of taxes.\\\" When the statutes governing the sale of lands for taxes direct an act to be done, or the manner, time, form, or place of doing it, such act must be done as prescribed, and the statutes must be strictly, if not literally, complied with. Jungk v. Snyder, 28 Utah 1, 78 P. 168; Moon v. Salt Lake County, 27 Utah 435, 76 P. 222; Asper v. Moon, 24 Utah 241, 67 P. 409; Bean v. Fairbanks, 46 Utah 513, 151 P. 338; Hatch v. Edwards, 72 Utah 113, 269 P. 138; Olsen v. Bagley, 10 Utah 492, 37 P. 739; Eastman v. Gurrey, 15 Utah 410, 49 P. 310.\\nUpon this basis we shall consider the points raised, (a) to (k) supra, as presenting three questions: (1) Was the error in the name of the party assessed as owner fatal? (2) Were the errors in description of the property fatal? (3) What is the effect of the differences in description in the various instruments through the tax proceeding? We note them seriatim.\\nThe statute, section 80-5-12, R. S. Utah 1933, section 5884, Comp. Laws Utah 1917, reads:\\n\\\"If the name of the owner or claimant of any property is known to the assessor, or if it appears of record in the office of the county recorder where the property is situated, the property must be assessed to such name; if unknown to the assessor, and if it does not appear of record as aforesaid, the property must be assessed to 'unknown owners.' \\\" (Italics added.)\\nThe record showed the names of the owners of this property in undivided interests. In 1927, the assessor segregated into three parts the assessment and levy on the property, and divided it into acreage, assessing to appellants, Walker and Austin and one James Burraston, a stranger to the title, 14.447 acres in undivided interests. Burraston was not an owner nor did he appear of record as an owner; nor did Walker and Austin own 14.447 acres at all, and no amount cojointly with Burraston. He was merely the administrator of the Estate of Ruth Esther Burraston, whose estate owned a one-eighth interest in the Wind Ridge and a one-twelfth interest in the Winridge No. 2 claims. Section 80-5-13, R. S. 1933, section 5877, Comp. Laws 1917, provides that, when a person is assessed as executor or administrator, his representative designation must be added and the assessment entered on a separate line from his individual assessment. No such designation was added here. In Asper v. Moon, supra, it was expressly held that an assessment of property held in individual interests assessed to one of the owners, \\\"et ah,\\\" was not a compliance with the statute requiring the property to be assessed in the \\\"names of the owners\\\" and void. In the instant case, not only was the assessment in part at least in the name of the wrong owner, but the property itself, which had a definite recorded name, was assessed under a wrong name; individual assessments of the undivided interests were not made, nor was the whole property assessed to all of the owners jointly, but part of the co-owners were segregated from the others and then joined with strangers to the title, and assessed on a mining claim which itself had a patented recorded name, but listed by the assessor under a wrong name; a wrong interest assessed and a wrong area. Such a jumble of wrong names could easily mislead and is clearly not a compliance with the statute under many decisions, of this court. The records are at the courthouse, and the assessor must not be permitted to deprive an owner of his property by neglect and palpable inaccuracies in his official work. Salt Lake Investment Co. v. Oregon Short Line R. Co., 46 Utah 203, 148 P. 489.\\nAs to the errors in description of the property, they are even more serious and more evident. When real property is assessed or sold for taxes, the description must be such that the property can be definitely known and located. The tax becomes a lien on the property, and the description must be definite enough for the lien to attach to the property without extraneous evidence. If there is no lien, there can be no sale. It must be definite enough so the owner will know just what property is being sold, and a prospective purchaser will know what particular property he could buy, so as to determine its value. By all these tests this assessment and tax sale must fail. No township, range, or section is given in which the property is located, though the same appeared of record.\\nThe statute requires that, where land has been sectional-ized by the government, the section or fractional section must be given and all parcels and subdivisions. The assessments here involved simply locate the property in the Tintic Mining District, lot No. 3615. Nothing to show the township in which the lot is located, or whether or not it is a city lot, platted as such, and in what city. No lien could attach by virtue thereof because no one could know the land to which it attached. Furthermore, the published delinquent list gives the one sale as lot 2615, an entirely different lot, with no identification as to where the lot is located. And the advertised May sale, from which plaintiff's alleged title is deraigned, listed it different from that in the delinquent sale. And in the valuation notices, the property is described as block 3615, an entirely different description from a lot, and no plat given where the block may be found.\\nThe trial court found plaintiff was the owner of certain land described merely by name and the surveyor general's survey No. 3615; and the other tract as surveyor general's survey No. 5615; no reference to sections, lots, or blocks. The surveyor general's number for all the lands in suit was 2445, and not 3615, which was a lot number in section 31, township 10 south, range 2 west, of Salt Lake Meridian; nor was it survey No. 5615. It is also described in the findings as lode 3615, a portion of section 31 aforesaid. Now the decree describes the land as Lot 3615, and twice as surveyor general's survey No. 3615, which survey number does not cover the property in suit.\\nAgain, the record shows that lot 3615 in section 31, township 10 south, range 2 west, of the Salt Lake Meridian, contains 14.447 acres, more or less, and that it was surveyed as surveyor general's survey No. 2445. Within that lot are the two mining claims involved in this action which overlap, and no area is given for either. The trial court found that the surveyor general's survey No. 3615 contained 5.509 acres and survey No. 5615 contained 8.938 acres, which are the lands he found plaintiff entitled to, although there is no evidence with respect to such surveys in the record.\\nEach assessment and each sale covers undivided interests in two different pieces of property, the Wind Ridge and the Wind Ridge No. 2. The various interests of the persons to whom the assessment is made are lumped together, and also both tracts treated as one piece, although the interests of the persons in one tract were not the same as in the other tract. The recorded patent showed the property to be a lode mining claim known as the Wind Ridge and a lode mining claim known as Win Ridge No. 2. The assessor and the treasurer put the two together as the Wind Ridge and Wind Ridge No. 2, a different piece of property. They suggest on their face as much difference as the names \\\"Winter and Winterton,\\\" \\\"Goff and Gough,\\\" or \\\"Cluff and Clough.\\\" When the property is known by a specific name, which name is of record, the assessor has no valid excuse for such errors in the name and thereby divest an owner of his title to property. And the name was the only attempt made to describe the property. We again call attention to the fact that the fractional interests assessed were 15/12 of the whole, and the total acreage assessed was nearly three times the whole area. Such assessments and sales cannot be upheld to divest an owner of his title. Madsen v. Bonneville Irrig. Dist., 65 Utah 571, 239 P. 781; Olsen v. Bagley, 10 Utah 492, 37 P. 739; Allen v. Fitzgerald, 23 Utah 597, 65 P. 592; Moon v. Salt Lake County, 27 Utah 435, 76 P. 222; Asper v. Moon, 24 Utah 241, 67 P. 409; Booth v. Cooper, 22 Idaho 451, 126 P. 776; Eastman v. Gurrey, 15 Utah 410, 49 P. 310; Fulton v. Krull, 200 N. Y. 105, 93 N. E. 494.\\nTax sale proceedings are predicated and founded upon failure to pay a tax assessed against the property, and therefore no validity can attach to any sale except of the property assessed and delinquent for failure to pay the tax levied on the assessment as made. Any advertisement for delinquency, and on the sale of the property, in the name of a different owner, or of property of a different description than that assessed, has no foundation and is therefore void. So, too, an auditor's tax deed to the county, or a deed from the county, describing a different piece of property than that assessed or advertised for delinquency, or sold for non payment of tax, cannot convey or divest the owner of title. The validity of a tax title depends upon the validity of all the proceedings upon which it is based, and it is no better or stronger than its weakest link. If one step fails, they all fail. By what is here said, we do not hold that in every case any one of the irregularities appearing in this record and set forth above and numbered from (a) to (k), inclusive, renders a tax sale void. We have set them forth as indicating many of the irregularities which assessors and other taxing officials through misunder standing or carelessness allow to creep into their records and proceedings. What may in one case be a mere irregularity may in another case, due to the particular facts, assume more significance and even void a sale. Taxing officials should use every reasonable carp and caution to avoid them, and make the entries in their records with care and scrutiny so as to show the necessary data required by both the spirit and the letter of the law.\\nThe trial court apparently based its judgment upon two provisions of the statute and which respondent insists cure any defects in the proceedings. But respondent misconstrues the statutes upon which it relies. Section 80-5-4, R. S. 1933, section 5876, Comp. Laws Utah 1917, provides, inter alia:\\n\\\"The county assessor must ascertain the names of all taxable inhabitants and all property in the county subject to taxation and must assess such .property to the person by whom it was owned or claimed, or in whose possession or control it was, at 12 o'clock m. of the 1st day of January next preceding. No mistake in the name of the owner or supposed owner of property renders the assessment thereof invalid.\\\" (Italics added.)\\nSection 80-10-37, R. S. 1933, Section 6046, Comp. Laws 1917, reads:\\n\\\"When land is sold for taxes, correctly imposed, as the property of a particular person, no misnomer of the owner or supposed owner, or other mistake relating to the ownership thereof, affects the sale or renders it void or voidable.\\\" (Italics added.)\\nThe first section quoted refers to the assessment, the other to the sale. The former expressly requires that the property be assessed to the owner, the claimant, or the possessor. It cannot be otherwise assessed unless the owner is unknown to the assessor and does not appear of record and there be no claimant to the property, or no one in possession thereof, when it must be assessed to \\\"unknown owners.\\\" Section 80-5-12, R. S. 1933, section 5884, Comp. Laws 1917. What then is the meaning of the itali cized sentence about a \\\"mistaken in the name\\\"? Clearly, that means when the owner is unknown to the assessor and does not appear of record in the recorder's office, the property may be assessed to the claimant, or to the unknown owners and the claimant, or to the person in possession. Or, if my property, which should be assessed to Martin M. Larson was assessed to Martin A. Larson or perhaps to Morten M. Larson, that would be a mistake in the name of the owner which would not affect the validity of the assessment. But to assess my property in the name of W. H. Folland is not a mistake in the name of the owner but is an assessment in the name of another person not the owner. The clause does not mention mistakes in the ownership, and the person who is the owner, but mistakes in the name of the owner.\\nNow as to the other section relative to sales, be it noted that the section is really in two parts. The first part pertains to the assessment and the second part to the sale. \\\"When land is sold for taxes, correctly imposed, as the property of a particular person'' (to be correctly imposed a tax must be imposed in the name of the owner or record owner if any such there be), then \\\"no misnomer of the owner or supposed owner\\\" (the holder of a record title, claimant or person in possession) \\\"affects the sale or renders it void or voidable.\\\" (Italics supplied.) This emphasizes the fact that, if taxes are not correctly imposed, it does void the sale. At most it can only mean that, when the assessment and levy of taxes have been correctly made against the particular property in the name of the owner thereof and are delinquent, the owner cannot complain of mere irregularities in his name in the subsequent sale proceeding. But even this contains no saving clause as to errors in description or other defects. These sections have no application to cases where the name of the owner is known or is shown by the record in the office of the county recorder.\\nFrom an analysis of the statutes and the authorities, the following general propositions may be deduced:\\n(1) An owner of real property, or any one interested therein, may be divested of his title or interest by a sale for delinquent taxes, properly imposed, if the sale proceedings conform to the statutory requirements.\\n(2) To form a foundation for a sale for unpaid taxes, real property must be assessed (a) in the name of the owner, if known to the assessor; or (b) if the name of the owner is not known, then it must be assessed in the name of the holder of the record title; or (c) if the owner is unknown and the county recorder's records do not show an owner of the property, it should be assessed in the name of the person in possession or to \\\"unknown owners\\\"; or (d) where property is held jointly or in undivided interests, the property may be assessed in the names of all such owners jointly, or each may be assessed separately for his proper fractional undivided interest in the whole property. The assessor should not segregate acreage to each individual.\\n(3) The property assessed should be so described as to cover the land actually owned, or according to the description as appears of record in the county recorder's office, as to metes and bounds. The assessment should show the meridian, township, range, and section, and fractional part thereof, where the land has been sectionalized by the government. The description must be definite enough not only to identify the land, but to advise the owner not only that it is his property, but the particular tract thereof; and to enable a prospective purchaser, if it goes to sale, to identify the land and to estimate its probable value.\\n(4) Where land has not been sectionalized, or not so surveyed as to be tied to standard government monuments or corners, it should be described by official lot numbers, surveyor general's survey number, if they appear on the county records, and by its correct name, if it has a name of record in the recorder's office, such as mining claims patented or unpatented.\\n(5) Where the land is within a platted area, it should be described showing the city, town, or addition platted, the block, lot, or fractional part thereof, at least as definite as shown by the record.\\n(6) The advertised delinquent list must conform as to owner and description with the assessment roll; the certificate of sale should conform to the delinquent list; the auditor's tax deed to the certificate of sale; and, if the county then sells to a private party, the description should be within the description of the auditor's tax deed. The delinquent list should show the amount of tax on the land and the time and place of sale.\\n(7) Distinct tracts should be assessed and sold separately.\\nIt is evident that by such tests and under such principles the sales in this case were and are void. The descriptions used in the assessment and sale proceeding involved in this action were fatally defective in not showing range, township, or section; no metes and bounds descriptions given, or any other proper media by which the lands could be identified or located, so the tax lien could attach thereto or the owner be apprised that his property was assessed and was being offered for sale for delinquency. The descriptions being fatally defective, the sale was and is void. We may add that the voiding of a sale does not relieve the land from taxes. Under the statute, if an assessment is erroneous or defective, the treasurer should not sell the property, but report the fact, and the Board of County Commissioners must cause the assessor to enter the uncollected taxes upon the assessment book of the next succeeding year, on the basis of the valuation and rates of the year for which they were erroneously assessed, to be collected as other taxes are collected thereon. R. S. 1933, 80-10-30. This protects the interest of the taxing bodies in their revenue and safeguards the owners in their property rights.\\nAppellants offered to pay into court for plaintiff or whoever may be entitled thereto such amount as plaintiff or his predecessors may have paid the county as taxes on the property.\\nThe judgment is reversed and the cause remanded to the district court of Juab county, with directions to enter a judgment in favor of the appealing defendants and against plaintiff and respondent upon payment into court of such amount as plaintiff or its predecessor has paid in taxes on the property, with legal interest thereon; costs to appellants.\\nFOLLAND, C. J., and HANSON and MOFFAT, JJ., concur.\"}"
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+"{\"id\": \"8870878\", \"name\": \"PETTIT et al. v. CLAWSON\", \"name_abbreviation\": \"Pettit v. Clawson\", \"decision_date\": \"1921-01-10\", \"docket_number\": \"No. 3529\", \"first_page\": \"419\", \"last_page\": \"424\", \"citations\": \"57 Utah 419\", \"volume\": \"57\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T18:53:03.829568+00:00\", \"provenance\": \"CAP\", \"judges\": \"WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.\", \"parties\": \"PETTIT et al. v. CLAWSON.\", \"head_matter\": \"PETTIT et al. v. CLAWSON.\\nNo. 3529.\\nDecided January 10, 1921.\\n(195 Pac. 199.)\\n1. Trlal \\u2014 Findings as to Laches Held Applicable to Merits as Well as Motion to Dismiss. Where defendant\\u2019s motion for dismissal of case on the ground of laches was submitted and considered by the court in connection with the merits of the case, the court\\u2019s finding as to laches of the plaintiffs must be considered and treated as applying with equal force to the matters alleged in the answers as to the merits as well as those raised by the motion ior dismissal.\\n2. Bills and Notes \\u2014 Burden of Proving Execution and Delivery Denied by Defendant is on Plaintiff. Where defendant, being sued on note, denied the execution and delivery thereof, it was incumbent on plaintiff to prove execution and delivery.\\n3. Bills and Notes \\u2014 Evidence as to Balance Due Held Insufficient to Warrant Recovery on Note. In action on note, where trial on the merits was held almost 12 years after the commencement of the action, where plaintiff was unable to produce the note or prove its loss, and where there was evidence where payments had been made from time to time, the evidence was insufficient to warrant recovery, since it was conjectural as to whether settlement had been made, indebtedness discharged, and note 'canceled, or whether there was a balance due thereon at the time of trial.\\nAppeal from District Court, Third District, Salt Lake County; P. C..Evans, Judge.\\nAction by Elizabeth D. Pettit and others against John Neels Clawson, as administrator of the estate of Spencer Clawson, deceased. Judgment of dismissal, and plaintiffs appeal.\\nAppikmed.\\nChris Mathison, of Salt Lake City, for appellants.\\nYoung & Moyle, of Salt Lake City, for respondent.\", \"word_count\": \"1728\", \"char_count\": \"10236\", \"text\": \"COBFMAN, C. J.\\nThe plaintiffs, in the usual form, commenced this .action in the district court of Salt Lake county, December 21, 1905, against Spencer Clawson, as defendant, for the purpose of procuring a judgment against him on a promissory note for $5,610, alleged to have been\\\" executed and delivered by him August 15, 1901, to Orson H. Pettit, payable two years after date with interest at 8 per cent, per annum. Summons was duly issued in said cause, and, after personal service thereof upon the said Spencer Clawson, the same was returned and filed with the clerk of said court December 26, 1905. No appearance in said case was made on the part of the said Spencer Clawson, and, after his defaulting in that behalf, no default was ever entered against him. Thereafter, about February 3, 1912, said court caused a special trial calendar to be made of the cases commenced in said court in 1904 and 1905 for the purpose of disposing of said cases or setting the same for trial, and, after public notice given of the calling of said calender on February 3, said cause was called, and, no interested party appearing, the said action, among others, under the rule of said court, was dismissed \\\"for want of prosecution.\\\" Thereafter, October 2, 1916, said Spencer Clawson died, and October 27, 1916, John Neels Clawson, the defendant herein, became the duly appointed and qualified administrator of his estate and has since acted in that capacity.\\nIt appears that George Pettit died in 1902, and that in November, 1903, the plaintiffs, his heirs at law, by decree of court rendered in the due course of the administration of his estate, succeeded him in the ownership of the said alleged note. February 28, 1917, said John Neels Clawson, as said administrator, was, by order of court, duly substituted, upon application of the plaintiffs, as defendant in this action. It also appears from the complaint that the plaintiffs duly presented their claim, predicated on the alleged note, against the estate of the said Spencer.Clawson, deceased, which claim was, on October 26, 1917, disallowed and rejected by the defendant herein.\\nThe defendant moved the court for a dismissal of plaintiffs ' action on the ground that plaintiffs \\\"had not prosecuted the suit with due diligence or any diligence at all,\\\" and that plaintiffs have been \\\"guilty of laches, neglect, and delay,\\\" and that on account thereof ' ' defendant is unable to properly defend the action for lack of evidence.\\\" Without waiving said motion, defendant, in his answer to the complaint, among other things, denied specifically the execution and de livery of tbe note sued upon, and for an affirmative defense pleaded also want of diligence and ladies on tbe part of tbe plaintiffs in tbeir prosecution of tbeir action.\\nTrial was had to tbe court without a jury. By agreement of counsel and consent of tbe court tbe defendant's motion to dismiss was submitted and considered by the court in connection with tbe merits of tbe case. Tbe trial court found with respect to tbe proceedings had for tbe enforcement of the plaintiffs' demands on the defendant substantially as hereinbefore stated. Tbe trial court further found:\\n\\\"That the plaintiffs have failed to produce said promissory-note described in plaintiff's complaint, and have failed to exercise any diligence to discover the whereabouts of said note and to produce the same in court in case it is in existence, and that the evidence was and is insufficient to prove the execution, delivery, or contents or existence of said note, and on account thereof the court finds that said note was never executed or delivered. The court further finds that plaintiffs have, as already alleged in defendant's said motion, been guilty of a lack of diligence in the prosecution of this action, and that on account of the loss of said note, and the death of said Spencer Clawson, and the long time elapsing since the filing of the complaint herein, without any action on the part of plaintiffs toward the prosecution of this suit, the defendant is unable to procure at this time evidence of the facts in issue in this case, and is unable to properly defend the action, and that, because of plaintiffs' said lack of diligence, neglect, and delay, plaintiffs are not entitled to further prosecute this suit at this time or to prosecute the same at all, and defendant is entitled to a dismissal of this action upon the merits.\\\"\\nIt is of tbe foregoing findings and tbe entering of judgment of dismissal of plaintiffs' action that plaintiffs principally complain and seek reversal on tbis appeal.\\nUnder tbe somewhat peculiar, not to say irregular, procedure under which tbe motion for dismissal of the action and tbe consideration of tbe case on its merits were submitted as one matter or question, and in view of the findings as made, we have no doubt but that tbe trial court intended its findings with respect to tbe laches of the plaintiffs to apply alike and with equal force to both motion and tbe plea made in tbe answer. In other words, tbe question of laches was, under tbe circumstances, submitted to the trial court, not as independent questions separately raised by motion and answer, but as one, and the court's finding as to laches of the plaintiffs, therefore, must be considered and treated as applying with equal force as to the matters alleged in the answer as well as those raised by the motion for dismissal, notwithstanding the contention of plaintiffs' counsel at this time to the contrary.\\nWith regard to the trial court's finding \\\"that said note was never executed or delivered\\\" by Spencer Clawson to O. H. Pettit, there is some evidence in the record which tends to show that Spencer Clawson, during his lifetime, in 1903, acknowledged an indebtedness of $5,800 to the estate of 0. IT. Pettit, deceased. There is also evidence tending to show that both before and after suit was brought on the alleged note Spencer Clawson, during his lifetime, made payments from time to time to mercantile agencies, presumably upon the note in question, the last payment having been made September 9, 1908. An agent of one of the mercantile agencies testified, as did also the former administrator of the estate of O. H. Pettit, that they had seen a note answering the description of the one described in plaintiffs' complaint, but no witness testified to the execution and delivery by Spencer Clawson of the note sued on in this action.\\nWe have pointed out that the defendant in his answer denied the execution and delivery of the note,, and therefore it was incumbent upon the plaintiffs to prove these facts at the trial, which, as we think, plaintiffs failed to establish by any substantial evidence. This is a ease in which it appears that by reason of the \\\"lack of diligence, neglect, and delay\\\" on the part of the plaintiffs in prosecuting it before the court, not only was the defendant precluded under the circumstances from properly defending, but the plaintiffs themselves were rendered helpless and unable to establish by competent evidence the essential allegations of their complaint. There is absolutely no excuse offered in this record to the effect that the plaintiffs, after bringing their action in 1905, did not have ample opportunity to prosecute their claims and establish their rights, if any they had, against Spencer Clawson, nor until after Ms death, nearly 12 years later, when the alleged note had been lost, forgotten, or paid, as the case may be.\\nUnder the facts and circumstances attending this ease we do not think the trial court could oven approximately do justice between the parties, although it had been conceded that Spencer Clawson executed'and delivered the note sued upon by plaintiffs. The inability of plaintiffs to produce the note, or prove its being lost, coupled with the facts established that payments had been made from time to time by Clawson to mercantile agencies, might just as well give rise to the conjecture that some settlement had been made, the indebtedness discharged and the note canceled in Clawson's hands, as that there is a balance due and owing to the plaintiffs. It was incumbent on the plaintiffs to establish their ease before a recovery could be had. This, we think, they failed to do.\\nFor the reasons apparent in the record and pointed out, we think the judgment of the district court dismissing the action on the merits must be sustained.\\nIt is so ordered; respondent to recover costs.\\nWEBER, GIDEON, THURMAN, and FRICK, JJ., concur.\"}"
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+"{\"id\": \"8870957\", \"name\": \"HOWARD v. NATIONAL COPPER BANK et al.\", \"name_abbreviation\": \"Howard v. National Copper Bank\", \"decision_date\": \"1933-04-06\", \"docket_number\": \"No. 5128\", \"first_page\": \"493\", \"last_page\": \"503\", \"citations\": \"81 Utah 493\", \"volume\": \"81\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T20:19:37.054378+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\", \"parties\": \"HOWARD v. NATIONAL COPPER BANK et al.\", \"head_matter\": \"HOWARD v. NATIONAL COPPER BANK et al.\\nNo. 5128.\\nDecided April 6, 1933.\\n(20 P. [2d] 610.)\\nSee, also, 16 P. (2d) 712.\\nB. Clegg and /. Louis Brown, both of Salt Lake City, for appellant.\\nDam, B. Shields and A. H. Hougaard, both of Salt Lake City, for respondents.\", \"word_count\": \"3244\", \"char_count\": \"18536\", \"text\": \"MOFFAT, Justice.\\nSome time in January, 1917, Thomas A. Howard, the plaintiff and appellant, borrowed from Isaac Brockbank, his brother-in-law, the sum of $150, and gave his promissory note as evidence of the obligation. To secure the note Howard indorsed and delivered to Brockbank certificate No. 94 of the Upper Canal Irrigation Company, for 18.7 shares of stock of said company. At the time of delivery the stock certificate was indorsed by Howard as follows:\\n\\\"For value received I hereby sell, assign and transfer unto Isaac Brockbank-shares of the Capital Stock represented by the within certificate, and do hereby irrevocably constitute and appoint Isaac Brockbank to transfer the said stock on the books of the within named corporation with full power of substitution in the premises. Dated Jan. 23,1917. Thomas A. Howard.\\\"\\nThe trial court found and the evidence so discloses that Thomas A. Howard paid the note in full on or about 1923. Neither the note nor the stock certificate was returned to Howard. Request therefore had been made and return promised. Brockbank probably left the stock certificates in his safety deposit box. By 1926 or 1927, Isaac Brockbank having attained the age of about 88 or 89 years became somewhat impaired. His son, Lucas T. Brockbank, largely took charge of his father's affairs. In January, 1926, Lucas T. Brockbank, made application to the National Copper Bank, the other defendant herein, for a loan without security. The bank demanded security. Lucas T. Brock-bank having secured possession of the stock certificate, but just how the evidence does not disclose, then produced and offered certificate No. 94 for 18.7 shares of the capital stock of Upper Canal Irrigation Company as security. To the certificate which Thomas A. Howard had delivered to Isaac Brockbank indorsed as above set forth, there was added either at the time Lucas T. Brockbank applied for the loan, or previously, the evidence does not definitely disclose, another indorsement reading as follows:\\n\\\"For value received I hereby sell, assign and transfer unto -shares of the capital stock represented by the within certificate and do hereby irrevocably constitute and appoint -to transfer the said stock on the books of the within named corporation with full power of substitution in the premises\\n\\\"Dated-\\n\\\"Isaac Brockbank by L. T. Brockbank, his attorney in fact.\\\"\\nThis indorsement except the signature was typewritten. The indorsement signed by Thomas A. Howard, and filled in as above set forth, was the usual script printed upon the certificate. When L. T. Brockbank, sometimes referred to also as Lucas T. Brockbank, presented th\\u00e9 certificate, or indorsed it, an officer of the bank with whom he was dealing asked Brockbank, \\\"what authority\\\" he had for that in-dorsement. Mr. Brockbank thereupon produced a power of attorney, which the bank insisted be placed of record in the county recorder's office. This power of attorney, omitting formal parts and acknowledment, reads as follows:\\n\\\"I, Isaac Brockbank, a resident of Holliday, Salt Lake County, State of Utah, hereby nominate and appoint my son, L. T. Brockbank, a resident of the same place, my true and lawful attorney for me and in my name, place and stead, to manage all my business of every kind whatsoever, and to care for and control all my property, and I hereby expressly authorize and empower him to ask, demand, receive and receipt for any and all moneys and property of every kind belonging to me, or to which I am entitle, and in case of necessity, to bring suit to procure the same, and to take any other lawful means to procure any and all of my property and to protect and keep the same for me and in my name and for my benefit, and to lease and collect rentals from all of my property.\\n\\\"And I further hereby authorize him to sell any and all of my property of all kind, real or personal, and I hereby authorize and empower him to do in my name and place and to any extent, any and all things that I can do personally, with the exception that I require that in the sale of any real property my consent and signature thereto shall be required, and in drawing any cash out of the bank, my joint signature with said agent shall be required.\\n\\\"I hereby ratify and confirm any and all acts of my said agent hereunder.\\n\\\"In witness whereof, I hereunto sign my name this 15th day of January, A. D. 1926.\\n\\\"Isaac Brockbank\\\"\\nThereupon the bank made a loan to L. T. Brockbank personally, took a note therefor, a copy of the power of attorney, the stock certificate in question, and a collateral agreement by the terms of which L. T. Brockbank \\\"delivered to The National Copper Bank the following securities: 18.7 shares Upper Canal Irrigation Co. as collateral security for the payment of any and all promissory notes,\\\" etc.\\nThe total loans at different times made by the bank amounted to $1,550 besides interest, etc., for which the bank claims a lien upon the stock in question as security. Thomas A. Howard made demand upon the bank for the surrender to him of the stock certificate as soon as, or shortly after, he learned of the alleged hypothecation to the bank. This was refused and suit brought against both the bank and Lucas T. Brockbank for possession of the stock or the value thereof, alleged to be the sum of $1,900. The bank answered the complaint and claimed to be an innocent purchaser for value and without notice, and counterclaimed or cross-complained against L. T. Brockbank demanding judgment of no cause of action on the part of plaintiff and for the amount due on the several notes of L. T. Brockbank, and for foreclosure and sale of the stock alleged to have been pledged by L. T. Brockbank to the bank. L. T. Brockbank defaulted and the trial court gave the plaintiff judgment against defendant L. T. Brockbank for the sum of $1,900, denied plaintiff, Thomas A. Howard, any relief against the defendant bank, and gave the bank judgment against L. T. Brock-bank for the amount prayed and for foreclosure and sale of the stock evidenced by said certificate No. 94. Plaintiff appeals.\\nThe appellant assigns eight errors, only one of which need be discussed. The other assignments relate to collateral matters in so far as the appellant is concerned or are included in the assignment here under examination. Appellant complains that the trial court erred in finding that the National Copper Bank had no notice that Lucas T. Brock-bank had no authority to pledge the certificate of stock involved in the transaction, and that the loans for which the stock was pledged were for the personal use and benefit of Lucas T. Brockbank, and that the bank was charged with notice, and that Lucas T. Brockbank had no authority to pledge the property of his principal for his own benefit.\\nThe trial court in its memorandum decision indicated a reliance upon the case of Garfield Banking Co. v. Argyle, 64 Utah 572, 232 P. 541, and quoted from Colebrook on Collateral Securities and cases cited. If the facts in the instant case permit the application of the rules of law laid down in the case of Garfield Banking Co. v. Argyle, supra, which we think are in accord with the great weight of authority and in accord with cases heretofore cited by this court, and therein cited, the position taken by the trial court is correct. We think the facts in this case do not bring this case within the rule in the case of Garfield Banking Co. v. Argyle, supra, and other blank indorsement cases.\\nAt the outset it must be conceded that upon one aspect of the case the facts of the Argyle Case are quite analogous to the instant case. Briefly the facts as found by the court in that case and there stated in detail are: Mrs. R. was the owner of the capital stock. She indorsed the certificate in blank, and delivered it to A with authority to pledge it. Thereupon A pledged it to C bank as security for the payment of a note. A did not purport or undertake to act as agent for R so far as C bank was concerned, but obtained a loan on his own personal account in the sum of $8,000. C bank had no knowledge or notice of any interest, right, or claim of R in the stock. The stock certificate was after-wards pledged to secure a loan from M bank for the purpose of paying the loan to C bank. M bank had no knowledge or notice of any interest or claim of R in the stock certificate; but was an innocent holder for value. After the loan from M bank fell due a loan was obtained from G bank for the purpose of paying M bank, G bank likewise taking said certificate without knowledge or notice or any right of claim of R. It also appears that the cashier of C bank, the original pledgee, had written the name of C bank in the blank power of attorney on the back of the certificate. The C bank, however, assigned any rights it had to the certificate to G bank. There is at least one important variance in the facts in the instant case. Here the certificate was not indorsed in blank. Thomas A. Howard when he delivered the certificate to Isaac Brockbank filled in the name of Isaac Brockbank, in both the assigning part and the power of attorney part of the indorsement. The certificate therefor in the instant case was not indorsed in blank. It is to be observed as above indicated that the so-called power of attorney or indorsement contains two distinct elements. 1. \\\"I hereby sell, assign and transfer unto-(in this case Isaac Brock-bank)-shares of the capital stock represented by the within certificate.\\\"\\nThat part of the indorsement just quoted constitutes the assigning or pledging part of the indorsement, and when indorsed in blank, the certificate then by virtue of such blank is set in possible circulation with implied authority in the hands of the holder to fill in the name of any one to whom he wishes it transferred.\\nAs was said in Austin v. Hayden, 171 Mich. 38, 137 N. W. 317, 322, Ann. Cas. 1915B, 894, and often quoted:\\n\\\"While certificates of stock are not, strictly speaking, commercial or negotiable paper nnder the law merchant, like promissory notes or bills of exchange, yet the recognized usage of indorsing such certificates in blank [italics added] and so transferring title, to them and what they represent, by delivery has given them a quasi negotiable character to such an extent that they are often held, as they pass from hand to hand, free from undisclosed antecedent equities.\\\"\\nBut when the assignment is to a particular person, may it still be said that the certificate still possesses a quasi negotiable character. Really there are no elements of negotiability in the assignment as such. The doctrine that the owner of shares is estopped to assert his title against a purchaser or pledgee for value from one whom he has clothed with apparent title or authority is entirely aside from the doctrine of negotiability. It is fundamentally the doctrine of estoppel. A stock certificate indorsed in blank containing a power of attorney is general and the holder may fill in the name of any one to whom he decides to transfer the certificate. The holder or pledgee is clothed with authority, there being no notice or knowledge to the contrary.\\nThe second part of the indorsement constituting the power of attorney is a separate matter from the assigning part of the indorsement and it may be in blank or special. In this case the power of attorney part of the indorsement is a special or restricted indorsement. The power given by Thomas A. Howard was limited to the transferring of the stock to Isaac Brockbank, as was likewise the transferring power. No one had authority to transfer or assign that certificate to any one else. To hold that such indorsement is not restrictive or special is equivalent to holding that the pledgee has authority to erase his own name and thereby after the indorsement to one in blank, and by an unauthorized act raise an estoppel against the owner without his knowledge or consent. As indicated the other part of the indorsement is the power irrevocably given to blank-(in this case Isaac Brockbank) \\\"to transfer the said stock on the books of the within named corporation, with full power of substitution in the premises.\\\"\\nThis power gave to Isaac Brockbank power to transfer the stock or to authorize or substitute another to make the transfer on the books of the company. The transfer however, was limited to Isaac Brockbank.\\nWe have not overlooked the situation in Garfield Banking Co. v. Argyle, supra, where it was argued that the original pledgee of the certificate had written its name in the blank power of attorney on the back of the certificate was notice to the other pledgees. Replying to that contention the court answered that no such limitation was imposed when the certificate was originally indorsed in blank. In addition the original pledgee made a special assignment to the holder of the stock, the last pledgee.\\nWe are therfore of the opinion that the cases cited relating to indorsement of stock certificates in blank and the rights of subsequent purchasers and pledgees do not apply with the same force to the instant case that they do to a case where the certificate is indorsed in blank. There is a further difficulty and one that seems decisive of this case. An examination of the power of attorney produced by Lucas T. Brockbank upon the bank's demand for authority for Lucas T. Brockbank to indorse the certificate will disclose that no power is therein contained authorizing Lucas T. Brockbank to indorse the certificate in question or to sign that document or any other document in behalf of Isaac Brockbank for the personal use or benefit of Lucas T. Brockbank.\\nThe first paragraph of the two paragraphs of the power of attorney from Isaac Brockbank to L. T. Brockbank, nominate and appoint L. T. Brockbank \\\"to manage all my business, care for and control all my property receive and receipt for any and all moneys and property belonging to me to bring suits and to protect and keep the same for me in my name and for my benefit.\\\" All power authorized in the second paragraph is \\\"to sell any and all of my property of all kinds, real and personal, and to do any and all things that I can do personally, with the exception that I require that in the sale of any real property my consent and signature thereto shall be required.\\\"\\nAll things to be done under and in pursuance of that power of attorney are of necessity for the benefit of the maker thereof, Isaac Brockbank. No benefit could come to Isaac Brockbank by L. T. Brockbank pledging stock in the hands of Isaac Brockbank, the property of another, to secure a personal obligation of L. T. Brockbank. The power to borrow money does not exist among the powers granted, not even for Isaac Brockbank or for his benefit, far less for the use and benefit of L. T. Brockbank. The taking of property of Isaac Brockbank, even if it be conceded for the moment that the stock in question actually belonged to Isaac Brockbank, was a dealing with the property of another under a trusted and fiduciary relationship, a self-dealing on the part of L. T. Brockbank amounting to fraud and in no way binding upon Isaac Brockbank. There was nothing in the situation misleading in any way to the bank, but on the contrary everything to put them upon notice in so far as the certificate of stock and the claimed power of attorney was concerned. The demand of the bank for authority on the part of L. T. Brockbank clearly shows the bank was not relying upon the indorsement of Thomas A. Howard, but if upon anything the ownership of Isaac Brockbank, and there was no sufficient indorsement on the certificate at the time it was presented, to satisfy the bank as to any right to transfer from Isaac Brockbank, hence, the demand for the authority. The error, if any existed, was on the part of the bank in not sufficiently examining the purported authority, or understanding the extent of the authority under which L. T. Brockbank purported to use property not his own to secure his own obligation.\\nIf this were a suit by Isaac Brockbank, manifestly the bank would have no defense against him. It seems likewise clear that the bank stands in no better position to defend against the claim of Thomas A. Howard. There is neither negligence nor estoppel revealed by the evidence against him, or for that matter, against Isaac Brockbank. The bank placed its reliance upon L. T. Brockbank and there it must remain.\\nA case quite analogous to the instant case interpreting a power of attorney is that of Huntsman v. Huntsman, 56 Utah 609, 192 P. 368, involving a power of attorney, broader in its terms than the one before us, where it was held that under a power to sell, the attorney in fact under the authority granted could not give the property away, or sell for a mere nominal consideration.\\nAny sale of hypothecation made by L. T. Brockbank would of necessity under the power of attorney be for the benefit of Isaac Brockbank. Hypothecating a security, even if it were the property of Isaac Brockbank, to secure a debt or obligation of his attorney in fact is not for the benefit of the maker of the power of attorney nor within the purview\\\" of the power conferred. Further the bank was charged with notice that either Isaac Brockbank or Thomas A. Howard was the owner of the stock tendered to it as security for L. T. Brockbank's obligation, and being so charged and put upon inquiry it was clearly the duty of the bank, before accepting the security, to pursue the inquiry, and having failed to do so, and apparently relying .upon the insufficient power of L. T. Brockbank, its equity cannot be considered as against the legal title of the plaintiff. Gowans v. Rockport Irrigation Company, 77 Utah 198, 293 P. 4. This is not a case of a stock certificate indorsed in blank, and the cases applying to the blank indorsement cases do not apply here.\\nWe are therefore of the opinion that the trial court was in error, and the judgment of dismissal of the complaint of the plaintiff as against the National Copper Bank is reversed, and the trial court is directed to reinstate the case and proceed in accordance with the views herein stated. Appellant to recover costs.\\nSTRAUP, C. J., and ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.\"}"
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+"{\"id\": \"8871266\", \"name\": \"BIRD & JEX CO. v. ANDERSON MOTOR CO.; STATE TAX COMMISSION v. SHREEVE\", \"name_abbreviation\": \"Bird & Jex Co. v. Anderson Motor Co.\", \"decision_date\": \"1937-06-22\", \"docket_number\": \"No. 5827\", \"first_page\": \"493\", \"last_page\": \"503\", \"citations\": \"92 Utah 493\", \"volume\": \"92\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:07:09.056532+00:00\", \"provenance\": \"CAP\", \"judges\": \"FOLLAND, C. J., and MOFFAT, WOLFE, and LARSON, JJ., concur.\", \"parties\": \"BIRD & JEX CO. v. ANDERSON MOTOR CO. STATE TAX COMMISSION v. SHREEVE.\", \"head_matter\": \"BIRD & JEX CO. v. ANDERSON MOTOR CO. STATE TAX COMMISSION v. SHREEVE.\\nNo. 5827.\\nDecided June 22, 1937.\\n(69 P. [2d] 510.)\\nNed Warnock and Alfred Klein, both of Salt Lake City, for appellant.\\nJames L. Platt, of Ogden, for respondent.\", \"word_count\": \"3410\", \"char_count\": \"19728\", \"text\": \"HANSON, Justice.\\nFrom the record before us it appears that Bird & Jex Company, corporation, brought an action in the district court of Weber County to recover a money judgment against the Anderson Motor Company, a corporation, and for the appointment of a receiver of the latter company. A money judgment in favor of plaintiff and against defendant was entered on September 27,1935, and T. Leland Shreeve was appointed general receiver. The order appointing him contained the following commission and authority:\\n\\\"It Is Further Ordered, that the said receiver be vested with all of the usual powers and rights of receivers appointed by this court with full power to take possession of all of the assets of said defendant wheresoever the same may be located or situated, and to demand from and proceed to recover by suit or otherwise such assets that have been conveyed by the above named defendant corporation to other creditors in preference to the general creditors of the corporation, to make an inventory and appraisement of such assets and report the same to this court and to conduct the business of said corporation as he may deem advisable to the best interest of the estate of said defendant corporation.\\\"\\nOn November 5, 1935, on petition of plaintiff, the order appointing the receiver was modified. So far as material here, this modifying order reads as follows:\\n\\\"It Is Hereby Ordered That the said T. Leland Shreeve be and he is hereby authorized to wind up the business of the said An derson Motor Company, a corporation. That he he and he is hereby authorized to sell at public or private sale for cash or credit, any and all the assets of said corporation, subject to the confirmation of this court.\\\"\\nOn March 20, 1986, the State Tax Commission appeared in said court and cause and filed its motion for a rule upon the receiver requiring him to make sales tax returns and to pay to the commission the amount due as sales tax on the sales of tangible personal property made by him as receiver since his appointment. In connection with the motion, it is alleged by the Tax Commission that the money judgment was entered and the receiver appointed as above set forth. Furthermore, it is alleged, upon information and belief, that the receiver had made and was continuing to make sales of tangible personal property at retail and had collected and received payment for said sales during each month of this period; that under the provisions of the Emergency Revenue Act of 1933 (chapter 63), as amended, the receiver was responsible for the collection of sales taxes of tangible personal property at retail made by him and was required to make monthly returns and payment of the sales tax to the commission as provided by the act; that the receiver had failed to make and file such tax returns and had failed to pay such sales taxes or any part thereof notwithstanding demand in writing had been made upon him so to do.\\nThis motion was argued to the district court. No answer, however, was made by the receiver to such allegations. The lower court denied the motion and the commission has appealed, assigning as error the overruling of its motion to require the receiver to make current sales tax returns during the receivership.\\nThere is no disputed fact question presented by the issues so made. The receiver emphasizes the fact that he was a liquidating receiver and that he did not operate the business of the motor company at any time, and that all sales made or to be made were and would be in the course of liquidation under orders of the court. The record does not disclose whether any sales were made under the first order authorizing the receiver to conduct the business of the motor company. If the facts alleged by the commission are to be taken literally and to be deemed admitted, since no' denial thereof was filed, then it would appear that the receiver has made sales of tangible personal property at retail and has received payment for said sales. The allegation that the receiver is responsible for the collection of sales taxes on these sales involves a conclusion and the very question here to be decided. On the face of the record it is impossible to say whether sales were made by the receiver in the ordinary process of conducting the motor company's business or whether all the sales were made in a process of liquidation. However, we shall assume, for the purposes of this opinion, as contended by the receiver, that the receiver has not made any sales under the order permitting him to conduct the business of the motor company and shall further assume that all sales made by him have been made in the course of liquidating the affairs of the company.\\nThe question here before us involves the construction of the Emergency Revenue Act of 1933 (chapter 63), as amended by the Second Special Session of the Legislature in 1933, c. 20. No changes were made in the pertinent sections of the act in the 1935 Session. Section 4, chap. 20, Second Special Session Laws of 1933, reads:\\n\\\"From and after the effective date of this act there is hereby levied and there shall be collected and paid:\\n\\\"(a) A tax upon every retail sale of tangible personal property made within the state of Utah equivalent to two (2) per cent of the purchase price paid or charged.\\\"\\nSection 5 reads:\\n\\\"Every person receiving any payment or consideration upon a sale of property or service subject to the tax under the provisions of this act, or to whom such payment or consideration is payable (hereinafter called the vendor) shall be responsible for the collection of the amount of the tax imposed on said sales and shall, on or before the fifteenth day of each month, make a return to the state tax commission for the preceding month and shall remit the taxes so collected to the state tax commission,\\\"\\nSection 2 defines the term \\\"person\\\" as used in the act as follows:\\n\\\"The term 'person' includes any individual, firm, copartnership, joint adventure, corporation, estate or trust, or any group or combination acting as a unit and the plural as well as the singular number unless the intention to give a more limited meaning is disclosed by the context.\\\"\\nThis same section defines \\\"retail sale\\\" as follows:\\n\\\" 'Retail sale' includes all sales made within the state of tangible personal property except wholesale sales.\\\"\\nIt defines the term \\\"wholesale sale\\\" as follows:\\n\\\"The term 'wholesale sale' means a sale of tangible personal property by wholesalers to retail merchants, jobbers, dealers or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale.\\\"\\nIt is contended by the receiver that, since he was an officer appointed by the court to liquidate the business of the motor company and that the sales that he made or makes are subject to confirmation by the court, he was not such a person, within the meaning of the provisions of the sales tax act above quoted, as is required to collect and remit sales taxes on such sales. He contends that, since the Legislature in defining the term \\\"person\\\" did not include by express provision \\\"receivers,\\\" the act was not intended to apply to sales made by receivers in the course of liquidation.\\nIt appears to us that the language of section 4 of the act, above quoted, expresses a clear intention to impose a tax upon all sales of tangible personal property at retail. It is also clear that all sales not made for the purpose of resale are defined as \\\"retail sales\\\" or \\\"sales at retail.\\\" The language of the act in this particular respect is all-inclusive, denoting an intention to avoid exceptions, classifications, or suppositions as to whether some particular sale, because of the kind of property or the kind of sale involved, should avoid the tax. It is also important to note that the tax is imposed upon the sale, the transaction, the fact and significance of which was recognized by this court in the case of W. F. Jensen Candy Co. v. State Tax Commission, 90 Utah 359, 61 P. (2d) 629, 632, 107 A. L. R. 261. We there held \\u2022that a \\\"tax is levied upon every sale within the terms of the statute.\\\"\\nIt is also clear, and we so held in the case above mentioned, that the vendor is responsible for the collection of this tax. It would appear, therefore, that the vendor's status, under the act, is that of a collector rather than that of a taxpayer, although he may absorb from his side of the deal the tax levied upon the sale made by him. Standard Oil Co. v. Fitzgerald (C. C. A.) 86 F. (2d) 799.\\nThe receiver, in order to overcome the effect of the broad language of the act in imposing the tax, argues that a limitation is to be found in the use of the word \\\"person\\\" appearing in section 5 and defined in section 2 (a); that these sections limit responsibility for the collection and remittance of sales taxes to those specifically enumerated in the definition of \\\"person,\\\" and, since specific mention is not made of receivers in such definition, sales by receivers, at least in the course of liquidation, are exempt from the tax. In support of this position, the receiver relies on the proposition that a tax cannot be imposed without clear and express words for that purpose; that a tax will not be extended by implication (Reinecke v. Gardner, 277 U. S. 239, 48 S. Ct. 472, 72 L. Ed. 866), and that tax laws should be strictly construed against the taxing power and in favor of the taxpayer; and relies, by way of analogy, upon cases involving the question as to whether under particular statutes a receiver is subject to franchise, license, and income taxes. These cases, so far as they concern franchise and license taxes, make a distinction between a receiver conducting the corporate business and a receiver who is merely liquidating. The Tax Commission also cites cases, involving particular statutes, which hold that a receiver should be required to pay franchise taxes. We deem it unnecessary to enter into a discussion of these cases as the ultimate question before us is a construction of our own statute and it sufficiently appears from these cases that the Legislature has the power to and can impose taxes which a liquidating receiver is required to pay, it being a question as to whether that was its intention.\\nThe following cases involved sales tax acts and show some confusion in their construction. In construing the New York Sales Tax Act (Consol. Laws, c. 60), the Circuit Court of Appeals, in the case of In re Flatbush Gum Co., Inc. (People of State of New York v. Arnold), 73 F. (2d) 283, 284, decided that a receiver making an auction sale of all the tangible personal property of the bankrupt in liquidation was not included in the word \\\"person\\\" as used in that statute. The statute imposed the duty to make a return upon every person who should sell tangible personal property, and defined \\\"person\\\" as including a \\\"copartnership, society, association, joint stock company, corporation, and any combination of individuals.\\\" Section 390 (as added by Laws 1933, c. 281, \\u00a7 1). The failure of the Legislature to include a receiver, the court said, in this enumeration was highly significant and \\\"indicates an intention to permit such sales to be made by a receiver tax free.\\\" The same court, in the case of In re Browning King & Co. (People of State of New York v. Irving Trust Co.), 79 F. (2d) 983, affirmed the Flatbush Gum Company Case without opinion.\\nThe Flatbush Gum Company Case is also referred to in the case of In re Messenger's Merchants Lunch Rooms (C. C. A.) 85 F. (2d) 1002, 1005, a case arising under the Illinois Sales Tax statute. The Illinois law (Smith-Hurd Ill. Stats, c. 120, \\u00a7 441) imposed an occupation tax \\\"upon persons engaged in the business of selling tangible personal property at retail\\\" computed at the rate of 2 per cent upon the gross receipts from sales. The state of Illinois claimed sales taxes on sales made by a trustee in bankruptcy after the filing of the petition in bankruptcy. The court says:\\n\\\"The act of Illinois fails to show affirmatively that it was intended to assess an occupational tax against a liquidating receiver, temporarily conducting the business until liquidation could be completed.\\\"\\nIn the case of White v. Moore, 46 Ariz. 48, 46 P. (2d) 1077, 1079, the court had before it the question whether the superintendent of banks in charge of the liquidation of a bank should pay a sales tax on the rentals received by him in leasing storerooms and offices owned by the bank. It was held that the superintendent of banks should pay this tax, the court saying:\\n\\\"It occurs to us, however, that if a solvent bank may be held to be engaged in the business of charging rents for the purpose of 'gain, benefit or advantage' when managing an office building it owns and for this reason may be required to pay a 2 per cent, sales tax on the rentals it receives from that building, notwithstanding the fact that charging and collecting rentals is merely incidental to its main business of banking, one who, in handling the affairs of the bank after insolvency, is compelled to charge and collect rentals on that building is also engaged in the business of charging rentals and, therefore, subject to the provisions of the excise revenue act. Leasing the space and collecting the rentals therefor, even though the bank is no longer a going concern, continues until the process of liquidation is completed or the building disposed of, the only difference being that these acts are performed by the receiver, rather than by the bank officials, and that those who benefit from them are the creditors of the bank instead of its stockholders.\\\"\\nIn Jerks v. State, 188 Wash. 472, 63 P. (2d) 369, the state supervisor of banking sued to recover taxes paid by him on conveyances which he made as liquidator of a bank. The taxes had been paid on sheriff's deeds issued to and received by the supervisor following foreclosures of mortgages, and also upon deeds executed by the supervisor pursuant to court order to the assignee of the supervisor's vendor's interest in certain contracts of sale of real property. The su pervisor contended that, since the statute was general in its provisions and did not specifically include the supervisor of banking, he was not subject to the statute. The court held that, notwithstanding the supervisor in liquidating a bank is the agent of the state and his possession is that of the state, the property is not exempt from taxation and the conveyances made by him were subject to the tax.\\nSubsequent to the decision in the Flatbush Cum Company Case, supra, the state court of New York, in People v. Graves, 249 App. Div. 49, 291 N. Y. S. 354, 355, had before it the question \\\"whether a trustee in bankruptcy operating, under an order of the bankruptcy court, the business of a bankrupt corporation and selling tangible personal property at retail, is subject to the sales tax imposed by\\\" the sales tax statute in a case where the corporation, if conducting the business itself, would have been subject to such tax. Section 390 of the New York statute, as it then existed and under which the corporation was operating, defined the word \\\"person\\\" as follows:\\n\\\"When used in this article: (a) The word 'person' includes an individual, copartnership, society, association, joint stock company, corporation and any combination of individuals.\\\"\\nThe court refused to follow the decision of the federal court in the Flatbush Case, saying:\\n\\\"The definition of the word 'person' contained in section 390 is clearly indicative of a legislative intent to subject all receipts from sales of tangible property at retail to the tax, whether made by an individual on his own behalf or while acting as receiver or trustee or in any other fiduciary capacity. It should be noted that the definition made no reference to an executor or administrator; yet no one would seriously contend that the Legislature intended that a merchant should be subject to this tax upon sales made in his lifetime but that upon his death identical sales should be exempt from tax because made by his legal representatives. To hold that the Legislature intended to relieve receivers and trustees from the application of the tax would be to impute to that body a design to give such officials an unconscionable advantage over individuals engaged in like occupations. A privilege tax, such as this, is eventually passed on to the consumer and is reflected in the selling price. If a trustee in bankruptcy who continues the business of the bankrupt estate is immune from the tax, he may sell his merchandise at the same price as his competitors and retain the tax or undersell his competitors by the amount of such tax. We are not willing to ascribe such an absurd intent to the lawmaking body. Clearly such was not the intention of the Legislature in enacting this law. On the contrary, it is plain that the broadest possible base was intended and hence the presumption was created that 'all receipts are subject to the tax until the contrary is established.' Such a comprehensive provision is manifestly inconsistent with a contention that, by the definition of the word 'person,' it was intended to exclude receipts from sales by individuals acting as receivers, trustees, executors, or in other fiduciary capacities. Bar from intending an exclusive definition, a broad, general, inclusive, and all-embracing definition was intended. Consequently, besides individuals, partnerships, corporations, societies, joint stock companies, associations and any combinations of individuals were all comprehended in the term 'person.' \\\"\\nThe tax is imposed upon all sales at retail, upon all sales made to a purchaser who did not buy for the purpose of resale. Had the company itself sold all its personal property to a consumer and not for resale for the purpose of winding up its business and making distribution to its creditors and stockholders, there can be no question but that it would have been responsible for making a return of the sale and remitting the tax. We can perceive no reason why a receiver, acting in its behalf, albeit under order of the court appointing him, was intended by the Legislature to be immune from such responsibility. The tax is imposed upon the sale, the transaction, and not upon the seller as such. The language imposing the tax is broad and all-inclusive as heretofore pointed out. It undoubtedly was the legislative intent to make the term \\\"person\\\" broad and general enough to fix responsibility for the collection of the tax thus broadly imposed. We cannot assume that the Legislature intended to impose a tax generally upon all retail sales and then, in defining those responsible for its collection, restrict by such definition the language of the act imposing the tax.\\nWe are of the opinion, therefore, that, whether it be as sumed that the sales made by the receiver in this case were made while he was conducting the business or were made in the process of liquidation, the statute imposed a tax upon the sales made by him and that by the terms of the statute he is responsible for making the returns to the Tax Commission and paying the taxes required by the act.\\nIt follows, therefore, that the lower court erred in denying the motion of the Tax Commission. The order so denying the motion is hereby vacated and the cause remanded to the district court for disposition in accordance with the views herein expressed. Costs to appellant.\\nFOLLAND, C. J., and MOFFAT, WOLFE, and LARSON, JJ., concur.\"}"
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+"{\"id\": \"8871302\", \"name\": \"CACHE VALLEY BANKING CO. v. LOGAN LODGE NO. 1453, B. P. O. E.\", \"name_abbreviation\": \"Cache Valley Banking Co. v. Logan Lodge No. 1453, B. P. O. E.\", \"decision_date\": \"1936-04-15\", \"docket_number\": \"No. 5664\", \"first_page\": \"577\", \"last_page\": \"584\", \"citations\": \"88 Utah 577\", \"volume\": \"88\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:51:10.859878+00:00\", \"provenance\": \"CAP\", \"judges\": \"ELIAS HANSEN, C. J., and FOLLAND, MOFFAT, and WOLFE, JJ., concur.\", \"parties\": \"CACHE VALLEY BANKING CO. v. LOGAN LODGE NO. 1453, B. P. O. E.\", \"head_matter\": \"CACHE VALLEY BANKING CO. v. LOGAN LODGE NO. 1453, B. P. O. E.\\nNo. 5664.\\nDecided April 15, 1936.\\n(56 P. [2d] 1046.)\\nLeon Fonnesbeck, of Logan, for appellant.\\nGeorge D. Preston, of Logan, for respondent.\", \"word_count\": \"1950\", \"char_count\": \"11355\", \"text\": \"EPHRAIM HANSON, Justice.\\nThis action was begun by plaintiff to recover on four promissory notes alleged to have been executed by the defendant April 24,1923. Each note is sued upon in a separate cause of action; all causes of action containing the same allegations, except for certain changes to fit the particular note relied on. The notes are set out in hsec verba and the indorsements of the payments made thereon shown in detail. The notes were made payable to plaintiff as trustee for the Farmers' & Merchants' Savings Bank. It is then alleged that the savings bank conveyed and assigned said notes to plaintiff for a valuable consideration prior to the commencement of this action, and the plaintiff is the owner and holder of the same. It is also alleged that each note was secured by a mortgage on certain real property, executed at the same time as the notes, which mortgage was duly recorded. It is further alleged that this mortgage was a second mortgage; that the Beneficial Life Insurance Company held a first mortgage, which mortgage had been foreclosed prior to the commencement of this action in an action brought by the insurance company against the plaintiff and defendant in this action, and pursuant to such foreclosure proceedings the present plaintiff \\\"has been and was thereby foreclosed of ail its right, title, claim, lien and demand against said premises, and the security of defendant's second mortgage has been and now is entirely exhausted and that said note is unsecured.\\\" Each cause of action contains the usual allegations as to attorney's fees. The prayer asks for judgment for the balance owing as principal on each note together with the interest owing and for attorney's fees.\\nWhile defendant demurred to the complaint and its brief contains some argument to the effect that the lower court committed error in overruling its demurrer, there is no assignment of error covering this phase of the case, and we shall not, therefore, consider the same.\\nSince the case is here upon the sustaining of plaintiff's demurrer to defendant's answer and since such answer contains several separate issues, in order to avoid repetition we shall state the essential allegations of the various parts of such pleading and dispose of the questions raised by this appeal in connection therewith as we proceed with such statement.\\nThe answer first alleges that the persons, the exalted ruler and secretary, who signed the notes had no authority or power to sign the same. Defendant contends that this constituted a defense. It is to be observed, however, that the answer admits that these officers did sign the notes. The complaint alleges payments on the notes extending over a period of six years. There is no denial of these payments. It appears, therefore, that the defendant voluntarily made payments on these notes for six years Under such conditions it could not now deny the authority of its officers to execute these notes. Ratification may be implied by acquiescence in, or recognition of, the act of the officers by the corporation or by acts tending to show an acceptance or adoption of the contract. 14a C. J. 382, 383; Tyng v. Constant-Loraine Inv. Co., 47 Utah 330, 154 P. 767; United States Bond & Finance Corporation v. National Building & Loan Ass'n, 80 Utah 62, 12 P. (2d) 758, 17 P. (2d) 238; Gonzales & Co., Brokers, Inc., v. Thomas, 42 Ariz. 308, 25 P. (2d) 552.\\nThe answer further alleges that defendant was not, at the time said notes were given, nor has it since become, indebted or obligated to the Farmers' & Merchants' Savings Bank in any sum whatsoever; that there is a total want of consideration for the execution of said notes, and the notes are for that reason invalid and not binding upon defendant. It is then alleged in a separate defense that defendant's officers who signed the notes were induced to sign the same through fraud and mistake arising out of the following circumstances: The plaintiff, through its officers and agents, represented that there was an outstanding mortgage in favor of the Farmers' & Merchants' Savings Bank against the defendant's home premises in the sum of $3,000 and accumulated interest, which mortgage had been given by the Paramount Candy Company, defendant's predecessor in interest, to the said savings bank and was duly recorded; that plaintiff represented this mortgage was then a valid and subsisting obligation and lien upon said premises, and that the same would or could not be canceled and released of record unless the obligation so secured was assumed by defendant; that the Paramount Candy Company was at the time insolvent, so that a deficiency judgment against it would be worthless; that the fact was that said mortgage had been canceled and released of record January 3, 1923, and did not constitute a lien against said premises when the notes sued on were signed, which fact defendant's officers did not know but plaintiff was fully apprised thereof; that defendant's officers signed said notes with the mistaken understanding and belief that said mortgage was a valid and subsisting lien, and that it was necessary to do so in order to cancel and release said mortgage; that said understanding and belief was induced through the said misrepresentation of plaintiff, its officers and agents; that, had the truth been known, said officers of defendant would not have signed said notes.\\nIt is the plaintiff's contention that the allegation of want of consideration is a mere conclusion and does not state a defense. There is some diversity among the authorities as to whether an allegation that a note was given without any consideration therefor states a conclusion or an ultimate fact. See 8 C. J. 916, \\u00a7 1204. This court in the case of Willis v. Kronendonk, 58 Utah 592, 200 P. 1025, 18 A. L. R. 947, held that such an allegation was a conclusion. However, the defendant in this case goes beyond the mere statement that the notes were executed without any consideration, and alleges the facts and circumstances which would show that they were so executed. If the facts so alleged are true, and we must deem them to be so for the purposes of this appeal, then defendant received absolutely nothing for the notes, as they were given solely to remove an incumbrance that did not exist and would not have been given had defendant known there was in fact no such in-cumbrance on its property. We do not think that a defense for fraudulent misrepresentation is stated nor was it necessary to state such defense in connection with the defense of want of consideration. We are of the opinion, however, that the facts so alleged, as outlined above, are sufficient to raise the defense of want of consideration. Smith v. Brown, 50 Utah 27, 165 P. 468. It was error, therefore, for the court to sustain plaintiff's demurrer to such defense.\\nIt is further alleged that the Beneficial Life Insurance Company foreclosed its first mortgage on tire premises covered by plaintiff's second mortgage, to which action plaintiff and defendant were parties; that plaintiff failed to plead in said foreclosure action and failed to set up its notes herein sued upon and its said mortgage given to secure the same and failed to have said mortgage foreclosed and the proceeds, if any remained after paying the first mortgage, applied upon said notes; that judgment was entered in favor of the insurance company and its mortgage declared to be a first lien and all the right, title, and interest of the defendants in that action were foreclosed; that said premises were sold to pay said judgment, but sufficient was not realized, and a deficiency was entered against the Farmers' & Merchants' Savings Bank; that said proceedings and judgment have become final and conclusive upon all parties thereto, including plaintiff, and the same is now res judicata in the present action, and plaintiff is estopped to bring this action.\\nThis defense raises the question as to whether it was incumbent upon the plaintiff herein to file a cross complaint against defendant herein in the foreclosure proceedings brought by the holder of the first mortgage and have plaintiff's second mortgage foreclosed or lose its right Co sue on its note. It is true that in this state there can be but one action upon a debt secured by a mortgage and that the personal liability of the mortgagor cannot be enforced until the security has been exhausted. National Bank of Commerce v. James Pingree Co., 62 Utah 259, 218 P. 552. But is has also been held that, where the security has been lost through no fault of the mortgagee, an action may be maintained directly upon the personal obligation evidenced by the note without going through the idle and fruitless procedure of foreclosure. Donaldson v. Grant, 15 Utah 231, 49 P. 779; Merced Security Sav. Bank v. Casaccia, 103 Cal. 641, 37 P. 648; Savings Bank v. Central Market Co., 122 Cal. 28, 54 P. 273, 276.\\nIt was no fault of the plaintiff that the security for its note was lost. The fault is rather with defendant for failing to pay the first mortgage and thus causing it to be foreclosed. The plaintiff could not have prevented the loss of the security by foreclosing its second mortgage. The mortgaged premises were not sufficient to satisfy the first mortgage. As stated in Savings Bank v. Central Market Co., supra:\\n\\\"I know of no rule of law or equity which required the second mortgagee co bring suit to recover his debt when the first mortgagee saw fit to do so. It is apparent that, had he foreclosed, he would have received nothing. I cannot conceive upon what theory the mortgagor or any of the payors can complain that he did not do so. Plaintiff has no longer a lien upon the property, and his debt is not now secured by mortgage. He did not voluntarily release his security. He has not waived nor lost it by his negligence. It was lost by the fault of the mortgagor in not paying the first mortgage.\\\"\\nThe case of Brophy v. Downey, 26 Mont. 252, 67 P. 312, is to the same effect. The following additional authorities hold that foreclosure of the first mortgage does not extinguish the liability of the maker of the second mortgage note, and a suit may be maintained on such note upon loss of the mort gaged security through the foreclosure of the first mortgage. Blackwood v. Sakwinski, 221 Mich. 464, 191 N. W. 207, 29 A. L. R. 1314; Neild v. Woodruff, 152 Misc. 390, 273 N. Y. S. 528; Sautter v. Frick, 229 App. Div. 345, 242 N. Y. S. 369; Weisel v. Hagdahl Realty Co., 241 App. Div. 314, 271 N. Y. S. 629; Peterson v. Abbe, 234 Mass. 467, 125 N. E. 611; 2 Wiltsie on Mortgage Foreclosure (4th Ed.) \\u00a7 1038.\\nIt must follow, therefore, that the judgment foreclosing the first mortgage does not preclude plaintiff from bringing this action on the notes nor is it res judicata of any issues here involved. However, because of the court's error in sustaining plaintiff's demurrer to the defense of want of consideration, the judgment of the lower court is vacated and set aside to the end that the cause may be tried upon the issues thus framed. Appellant to recover costs.\\nELIAS HANSEN, C. J., and FOLLAND, MOFFAT, and WOLFE, JJ., concur.\"}"
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+"{\"id\": \"8871496\", \"name\": \"STATE ex rel. NEILSON v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al.\", \"name_abbreviation\": \"State ex rel. Neilson v. Third Judicial District Court for Salt Lake County\", \"decision_date\": \"1909-06-23\", \"docket_number\": \"No. 2006\", \"first_page\": \"223\", \"last_page\": \"228\", \"citations\": \"36 Utah 223\", \"volume\": \"36\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:25:26.118354+00:00\", \"provenance\": \"CAP\", \"judges\": \"STRAUP, C. J., and McCARTY, J., concur.\", \"parties\": \"STATE ex rel. NEILSON v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al.\", \"head_matter\": \"STATE ex rel. NEILSON v. THIRD JUDICIAL DISTRICT COURT FOR SALT LAKE COUNTY et al.\\nNo. 2006.\\nDecided June 23, 1909\\n(102 Pac. 868).\\n1. Appeal and Ebrob \\u2014 Decisions Reviewable \\u2014 Finality. A judgment is final for the purpose of taking an appeal when it terminates the action or proceeding in which it is rendered, and that, regardless of whether the rights of the parties with reference to the suhject-matter of the action have been adjudicated. (Page 226.)\\n2. Justices op the Peace \\u2014 Jurisdiction\\u2014Waiver oe Objection. By-entering a general appearance and answering to the merits, defendant waived any right to object that the action was brought in the wrong precinct. (Page 227.)\\n3. Justices of the Peace \\u2014 Objection to Jurisdiction \\u2014 .Waiver\\u2014 Answer to Merits on Appeal. Comp. Laws 1907, section 3745, provides that on appeal from a justice of the peace the cause shall be heard anew. Held, that, where defendant in justice\\u2019s court appeared specially and objected that the action was brought in the wrong precinct, but on appeal from a dismissal he answered to the merits, his objection was waived. (Page 227.)\\n4. Mandamus \\u2014 Courts\\u2014Jurisdiction. Where a court has jurisdiction of the subject-matter of the action, and has acquired jurisdiction of the parties, mandamus will lie to compel the court to take jurisdiction of the cause and to try it upon the merits. (Page 228.)\\nMandamus by the state, on the relation of Hyrum Neilson, to compel Morris L. Ritchie, as Judge of the Third Judicial District Court for Salt Lake County, to set aside an order dismissing an action by relator against E. E. Watrous and others.\\nTEMPORARY writ MADE PERMANENT.\\nE. A. Walton for plaintiff.\\nWillard Hamer for defendant.\\nHonerine M. & M. Co. v. Tallerday S. P. & T. Co., 30 Utah 449, 85 Pac. 626; Winnovich v. Emery, 33 Utah 345, 93 Pac. 988; Bristol y. Brent, 35 Utah 213, 99 Pac. 1000.\\nWhite v. Railway, 25 Utah 346, 71 Pac. 593; Sanipoli v. Coal Co., 31 Utah 114, 86 Pac. 865; Kuhn v. Mount, 13 Utah 108, 44 Pac. 1036.\\nHoffman v. Lewis, 31 Utah 179, 87 Pac. 167.\", \"word_count\": \"1792\", \"char_count\": \"10385\", \"text\": \"MeCARTT,' J.\\nThis is an original application for a writ of mandate against Hon. Morris L. Ritchie^ one of the district judges of Salt Lake County. The proceedings upon which the application is based are as follows: On October 31, 1908, Hyrum Neilson, the relator herein, who, for convenience, will hereafter be designated and referred to as plaintiff, commenced an action in the justice court of Salt Lake City precinct against E'. E. Watrous, H. R. Watrous, and Earl Watrous, defendants, to recover the sum \\u00f3f $206 for goods, wares, and merchandise alleged to have been sold and delivered to them by plaintiff. Plaintiff caused to be issued out of said court a writ of attachment, which was duly served by garnishment. No summons was served on defendants or either of them. On November 6, 1908, the defendants appeared specially, and moved the court to dismiss the action on the ground that it was brought in the wrong precinct or city. In support of their motion defendants filed an affidavit in which it was alleged that the cause of action set forth in plaintiffs complaint arose in Holiday Precinct, Salt Lake County, Utah; that the defendants, and each of them, during all the times mentioned in plaintiffs complaint, have been and now are residents of Big Cottonwood Precinct, Salt Lake County; that the alleged cause of action sued on arose upon an account contracted in Holiday Precinct, which is not situated in Salt Lake City Precinct, and that during all of said times there has been, and now is, a regularly elected, qualified, and acting justice of the peace in Holiday Precinct. On November 10, 1908, the justice of the peace sustained the motion, and dismissed the action without prejudice. The plaintiff thereupon appealed the ease to the district court of Salt Lake County. On December 17, .1908, the defendants filed an answer to the merits in the district court in which they denied \\\"each and every allegation contained in said complaint,\\\" and prayed that \\\"the plaintiff take nothing by his said complaint.\\\" The same day on which the answer was filed the defendants filed a motion to dismiss the attachment on the ground that the justice court had no right to issue the writ because it had no jurisdiction of the defendants, or either of them. Two of the defendants, H. It. Watrous and Earl Watrous, filed an affidavit in support of the motion to dismiss, in which they denied each and every averment contained in plaintiff's affidavit for attachment. The motion to dismiss the attachment was argued and submitted' and by the court taken under advisement. The court did not rule upon this motion, but, on December 31, 1908, on its own motion, dismissed the case \\\"without prejudice to a new action\\\" for want of jurisdiction, and refused to further entertain jurisdiction of the case and try tbe same upon merits. Plaintiff thereupon began these proceedings for a writ of mandate requiring the Third District Court, Hon. Morris L. Eitchie judge thereof, to vacate and set aside the order of dismissal, and to assume jurisdiction of the cause and to try upon merits, and for costs against the other defendants.\\nIt is contended on behalf of the defendants that the judgment of the justice of the peace dismissing the action without prejudice is not a judgment from which an appeal will lie. Counsel, in their brief, say: \\\"The judgment of the justice in this case was that the same be dismissed without prejudice, and therefore it did not dispose of the action as to all the parties, and dispose of the subject-matter of the litigation upon the merits.\\\"\\nIt is settled law in this jurisdiction that a judgment is final for the purpose of taking an appeal when it terminates the action or proceeding in which it is rendered, and that, too, regardless of whether or not the rights of the parties with reference to the subject-matter of the action have been adjudicated. In the case of Honerine M. & M. Co. v. Tallerday S. P. & T. Co., 30 Utah 449, 85 Pac. 626, the question as to what constitutes a final judgment, within the meaning of the Constitution and statutes of this state, was discussed, and in the course of the opinion Mr. Justrice Straup, speaking for the court, said: \\\"It is the termination of the particular action which marks the finality of the judgment. A decision which terminates the suit or puts the case out of court without an adjudication on the merits is nevertheless a final judgment.\\\" In the case of Winnovich v. Emery, 33 Utah 345, 93 Pac. 988, this same general question as to what constitutes a final judgment was again before this court, and, in the course of the opinion, Mr. Justice Frick, after citing with approval the Honerine Case, said: \\\"The test of finality for the purpose of an appeal, therefore, is not necessarily whether the whole matter involved in the action is concluded, but whether the particular proceeding or action is terminated by the judg-\\nment.\\\" Tbis doctrine was again reaffirmed by tbis court in tbe case of Bristol v. Brent, 35 Utah 213, 99 Pac. 1000.\\nBoth tbe justice of tbe peace before whom tbe action was commenced and tbe district court to which tbe appeal was taken bad original and concurrent jurisdiction of tbe subject-matter of tbe action. In fact, tbe question of jurisdiction of tbe subject-matter is not involved. Section 3745, Comp. Laws 1907, provides that all causes appealed from the justice of tbe peace courts to tbe district court shall be beard anew in such court. It therefore necessarily follows that whatever right a party to an action may waive in tbe justice court be may also waive when tbe case is appealed to tbe district court; or be may insist upon such rights in tbe justice court and waive them in tbe district court. Therefore, whatever rights the defendants may have bad to object to tbe justice court proceeding to try tbe action on merits because of 'the failure of the court to acquire jurisdiction of their persons, they could have waived.; that is, by entering a general appearance and answering to tbe merits, they would have waived whatever right they might otherwise have, bad to object to a trial before that particular justice on tbe ground that tbe action was brought in tbe wrong precinct. (White v. Railway, 25 Utah 346, 71 Pac. 593; Sanipoli v. Coal Co., 31 Utab 114, 86 Pac. 865; Kuhn v. Mount, 13 Utah 108, 44 Pac. 1036.) In 3 Cyc. 521 and 522, tbe general rule is correctly and tersely stated as follows: \\\"If a court has jurisdiction of tbe subject-matter, a defendant, by making a general appearance, waives tbe objection that tbe venue of tbe action is wrong.\\\" Many cases are cited in tbe footnote which illustrate and sustain tbis doctrine.\\nIt follows from what we have said that defendants, by answering to tbe merits in tbe district court, submitted themselves to tbe jurisdiction of tbe court. In fact they did not challenge the jurisdiction of that court to bear and determine tbe case on its merits, but the district court, as we have observed, dismissed tbe action on its own motion instead of proceeding to try tbe case on merits as it should1 have done. As heretofore stated, the question of jurisdiction of the subject-matter is not involved, and has no application in this case. We recognize the doctrine that consent cannot confer jurisdiction upon a court where, under the law, it has no authority to adjudicate upon the subject-matter of the action. But where it has jurisdiction of the subject-matter, the parties may, by entering a general appearance, subject themselves to the jurisdiction of the court, and thereby make its jurisdiction complete. And this is just what the defendants in this case did when they answered to the merits in the district court. Where, as in this case, the court has jurisdiction of the subject-matter of the action, and has acquired jurisdiction of the parties thereto, and instead of proceeding to hear- and determine the case on its merits arbitrarily dismisses the action, mandamus will lie to compel the court to take jurisdiction of the cause and to try the same upon merits. (Hoffman v. Lewis, 31 Utah 179, 87 Pac. 161.)\\nWe think the temporary writ heretofore issued ought to be made permanent. It is so- ordered. Costs of these proceedings to be taxed against defendants E. E. Watrous, H. R. Watrous, and Earl Watrous.\\nSTRAUP, C. J., and McCARTY, J., concur.\"}"
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+"{\"id\": \"8871771\", \"name\": \"TAYLOR v. OGDEN CITY\", \"name_abbreviation\": \"Taylor v. Ogden City\", \"decision_date\": \"1923-03-27\", \"docket_number\": \"No. 3875\", \"first_page\": \"455\", \"last_page\": \"460\", \"citations\": \"61 Utah 455\", \"volume\": \"61\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:35:14.349492+00:00\", \"provenance\": \"CAP\", \"judges\": \"WEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ., concur.\", \"parties\": \"TAYLOR v. OGDEN CITY.\", \"head_matter\": \"TAYLOR v. OGDEN CITY.\\nNo. 3875.\\nDecided March 27, 1923.\\n(214 Pac. 311.)\\n1. Municipal Corporations \\u2014 Evidence Justified Finding of Negligence in Permitting Hole in Pavement. Evidence held, sufficient to justify finding of negligence by a city in permitting a hole in the pavement of a crosswalk into which plaintiff slipped.\\n2. Municipal Corporations \\u2014 Cannot be Said as Matter of Law that Permitting Hole in Crosswalk was not Negligence. It cannot be said as a matter of law that defendant city was not negligent in permitting a hole 2 inches deep at one end and 4 to 6 inches deep at the other and about 1% feet square in a crosswalk pavement, into which a pedestrian slipped.\\n3. Municipal Corporations \\u2014 City not Excused as Matter of Law for Negligence in Permitting Hole in Crosswalk Because Commissioners did not Observe Defect. It cannot be said as a matter of law that, because city commissioners and others did not observe a defect in crosswalk, in permitting such defect the city was not negligent.\\n4. Municipal Corporations \\u2014 Whether City Had Constructive Notice of Hole in Crosswalk for Jury. Where a pedestrian was injured by slipping into a hole in a crosswalk in the heart of a city, and a place where there was much travel, whether \\u25a0 the city had constructive notice of the defect was for the jury.\\n5. Municipal Corporations \\u2014 Pedestrian Injured by Slipping into Hole in Crosswalk not Guilty of Contributory Negligence as Matter of Law. Held, that a pedestrian injured by slipping into a hole in the pavement of a crosswalk is not guilty of contributory negligence as matter of law.\\n6. New Trial \\u2014 Allowance of Damages for Medical Supplies Held Insufficient to Authorize New Trial for Jury\\u2019s Passion and Prejudice. Notwithstanding that an allowance of $10 for medical supplies was made by the jury without substantial evidence to support it, such excess is not sufficient to justify granting new trial on the ground that the excessive damages are based on passion and prejudice\\n7. Appeal and Error \\u2014 Verdict Reduced and Judgment Affirmed. Where court erroneously denied a new trial without requiring remittitur of small excess in the verdict, the court will affirm judgment with direction to remit the excess.\\nAppeal from District Court, Second District, Weber County; George 8. Barker, Judge.\\nAction by Alex Taylor against Ogden City. Judgment for plaintiff, and defendant appeals.\\nREMANDED WITH DIRECTIONS TO REQUIRE REMITTITUR AND AEBTRM.\\nWade M. Johnson and 8. C. Powell, both of Ogden, for appellant.\\nN. J. Harris, of Ogden, for respondent.\\nShugren v. Salt Lake City, 48 Utah, 320, 159 Pac. 530.\\nStephens Ranch, etc., Co. v. Union Pac. Ry. Co., 48 Utah, 528, 161 Pac. 459,\", \"word_count\": \"2061\", \"char_count\": \"11869\", \"text\": \"FRICK, J.\\nThis is an appeal by Ogden City, hereinafter called appellant, from a judgment awarding damages to the plaintiff, hereinafter styled respondent, for personal injuries which he alleged he suffered by reason of appellant's negligence in permitting a certain street and crosswalk to become and be out of repair and dangerous to those required to use the same. The appellant denied the alleged negligence, and as an affirmative defense pleaded contributory negligence on the part of respondent.\\nThe errors assigned- and relied on by appellant, stating them in the language of its counsel, are:\\n\\\"(1) That the trial court erred in denying defendant's motion for a nonsuit; (2) that the trial court erred in instructions to the' jury in that the trial court did not instruct the jury to bring in a verdict of no cause of action; (3) that the trial court erred in denying defendant's motion for a new trial.\\\"\\nRespondent's evidence with regard to the accident is to the effect that on the evening of February 17, 1921, he, in com pany with bis wife and a Mrs. Williams, was crossing one of the principal streets in the business district of the city of Ogden; that in passing over or along the crosswalk respondent \\\"slipped\\\" into a hole in the pavement near the center of said street; that the hole, stating it in his own language, was about 6 inches deep in' the deepest place,\\\" and was ' ' about 14 inches east and about 18 inches north and south.\\\" Another witness said the hole was about a foot east and west and about a foot and a half north and south, \\\"and was about 2 inches deep in one end.and from 4 to 6 inches deep at the other end\\\"; that respondent stepped into the hole, and fell down in the street, and received the injury complained of. It also appeared that there was much travel on the street in question and that many people were passing to and fro over the crosswalk at the time the respondent stepped into the hole, and that neither he nor those who were with him observed the hole in the street before respondent was injured as before stated.\\nThere was evidence produced by appellant to the effect that there was no hole, but a mere depression, of less depth than that testified to by respondent and his witnesses. The character and extent of the defect was, however, a matter exclusively for the jury to determine from the evidence, and for the purpose of this appeal, we must assume that the jury adopted the statements of respondent and his witnesses. There was also evidence produced on behalf of respondent that the hole was at the place in question for at least two months prior to the accident.\\nThe city commissioners of appellant, who testified on its behalf, in substance said that, although all of them had frequent occasion to pass, and did pass, along and over the crosswalk in question, they at no time had observed the defect prior to the accident, and not until their attention was directed to it thereafter.\\nAt the conclusion of respondent's evidence appellant interposed a motion for a nonsuit, and at the conclusion of all of the evidence it requested the court to charge the jury to return a verdict in its favor. It is now insisted that the court erred in denying both the motion for nonsuit and tbe request to charge as aforesaid. It is also insisted that the evidence is insufficient to justify a finding of negligence upon the part of appellant. As before stated, the weight of the evidence and the credibility of the witnesses were matters for the jury to determine. If, therefore, the evidence most favorable to the respondent's contention is sufficient to sustain the jury's finding, we are powerless to interfere, unless there is some error of law which would vitiate their finding.\\nUnder the repeated decisions of this court the evidence produced on behalf of respondent relating to the defect in the street was sufficient to justify a finding of neg-ligenee on the part of appellant. That question is settled by this court in the case of Shugren v. Salt Lake City, 48 Utah, 320, 159 Pac. 530, where the prior decisions of this court, together with a large number of cases from other courts, are cited and reviewed, in which cases numerous defects in streets and sidewalks are set forth and described. A mere cursory examination of the Shugren Case will at once make clear that to permit the defect described by respondent and his witnesses to remain in the street cannot be declared not to have constituted negligence as a matter of law. \\\"Whether the defect was dangerous or otherwise, or whether the street or crosswalk was reasonably safe for travel or not, or whether the appellant had exercised that degree of care required by the law as charged by the court, was for the jury, and they resolved those questions against the appellant.\\nNor is it an answer to say' that, because the city commissioners and others did not observe the defect, for that reason the court, as matter of law, can say that the jury's finding is not sustained by the evidence. It would be rather irregular, if not somewhat hazardous, for a court to say that, De-eause city officials did not observe a particular defect in a street or crosswalk, for that reason it did not exist at all, or, if it did, that it nevertheless was not of that character which would make the street unsafe or dangerous for travel.\\nNor can it be said, as matter of law, that appellant did not have at least constructive notice of the defect. The street or crosswalk where the defect existed being in the heart of the city, and at a place where there was much travel, it was a question for the jury to say whether or not, under all the circumstances, the city had notice of the defect. The court's instructions upon that question, as well as upon all others, were favorable to appellant.\\nNor can we say, as matter of law, that respondent was guilty of contributory negligence. The jury also passed upon the question under proper instructions.\\nIt is next contended that the district court erred in denying appellant's motion for a new trial, for the reason that the jury awarded respondent $10 for medical supplies in the absence of any evidence to support sueh an award. The record discloses that respondent demanded special damages for \\\"medical services.\\\" At the trial he testified that the doctor's bill was about $40, and'said, \\\"I don't know what the medicine cost.\\\" That is all the evidence respecting special damages. The jury in its verdict awarded his \\\"special damages in the sum of $50.\\\" The respondent concedes in his brief that the jury allowed $10 for \\\"medical supplies.\\\" There is, however, no evidence respecting what medical supplies respondent received, and certainly none respecting the cost or value thereof. We have a case, therefore, where a jury has allowed an item of $10 without any substantial evidence to support such an allowance. The amount allowed is therefore excessive to that extent. Such an excess, however, as pointed out by this court in Stephens Ranch, etc., Co. v. Union Pac. Ry. Co., 48 Utah, 528, 161 Pac. 459, and cases there cited, is not sufficient to justify the granting of a new trial upon the ground that the excessive damages are based upon passion or prejudice. Merely tO' allow damages for an item or items without evidence to support such an allowance does not necessarily show that the jury was actuated by either passion or prejudice, but rather that the allowance is a mere error of judgment which can readily be corrected by requiring a remittitur for the excess without injustice to any one. Such has been done frequently by this court without granting a new trial. No doubt, when the district court's attention was directed to the matter- by appellant in its motion for a new trial, the court should have required the respondent to remit the $10 from the judgment or suffer a new trial. Indeed, in view that the exact amount of the excess is so easily ascertained, and that the same is quite small, the district court should have required the respondent to remit the same unconditionally without imposing a new trial as an alternative. What the district court should have done as a matter of law we can do or direct to be done.\\nThe case was submitted to the jury upon instructions that were full, and fair upon every issue, and, if there is any cause for complaint on the part of appellant, it is because the jury followed the testimony of respondent and his witnesses, rather than the testimony offered by appellant. That is a matter, however, over which this court has no control.\\nFrom what has been said it follows that the case should be, and it accordingly is, remanded to the district court of Weber county, with directions to 'require the respondent to file within 10 days from receiving notice of this decision with the clerk of that court a remittitur of $10 from the judgment as of the date the motion for a new trial was denied, and that court is directed to enter judgment in favor of respondent for the amount of the verdict of the jury less the $10 so remitted. In all other respects the judgment is affirmed; each party to pay his own costs.\\nWEBER, C. J., and GIDEON, THURMAN, and CHERRY, JJ., concur.\"}"
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+"{\"id\": \"8872109\", \"name\": \"STATE ex rel. DAVIS v. CUTLER et al.\", \"name_abbreviation\": \"State ex rel. Davis v. Cutler\", \"decision_date\": \"1908-05-28\", \"docket_number\": \"No. 1927\", \"first_page\": \"99\", \"last_page\": \"108\", \"citations\": \"34 Utah 99\", \"volume\": \"34\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:29:42.662533+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCAETY, C. L, and STEAUP, J., concur.\", \"parties\": \"STATE ex rel. DAVIS v. CUTLER et al.\", \"head_matter\": \"STATE ex rel. DAVIS v. CUTLER et al.\\nNo. 1927.\\nDecided May 28, 1908\\n(95 Pac. 1071).\\n1. Coubts \\u2014 Establishment\\u2014Stenoskaphers\\u2014Employment. \\u2014 Under Comp. Laws 1907, sections 721, 722, authorizing the judges of the district court to contract with and employ competent persons as court stenographers at a rate not to exceed $8 for each sitting of court, and that such stenographers shall he paid not to exceed ten cents a mile for each mile actually traveled in the performance of their part of the contract, a district judge has power to contract to pay a stenographer for mileage at the rate of ten cents a mile without reference to amount actually paid for such travel.\\n2. Same \\u2014 Statutes.\\u2014Laws 1907, p. 172, c. 123, making appropriations for payment of per diem mileage of court stenographers, and limiting reimbursement for mileage to the amount actually paid out, was not intended to apply to contracts for the payment of stenographers\\u2019 mileage at the rate of ten cents per mile executed by judges of the district court, as authorized by Comp. Laws 1907, sections 721, 722.\\n3. Statutes \\u2014 Amendment\\u2014Title.\\u2014Though a general appropriation bill is exempted from the general constitutional provision requiring all bills to contain but one subject, which must be clearly expressed in the title, a general law may not be amended, modified, or repealed by a general appropriation act contain ing a general title without complying with the constitutional provision providing that the section amended or modified be reenacted in the form as modified or amended, and not by mere reference, etc.\\n4. Courts \\u2014 Stenographers\\u2014Compensation \\u2014 Statutes \\u2014 Implied Repeal. \\u2014 Laws 1907, p. 172, c. 123, making appropriations for general purposes, and limiting appropriations for the payment of mileage for court stenographers to the amount actually expended, did not modify or repeal by implication Comp. Laws 1907, sections 721, 722, auj:horizinig district judges to contract with stenographers for the payment of mileage at a rate of ten cents a mile.\\n5. Mandamus \\u2014 Acts to be Performed \\u2014 Judicial Acts \\u2014 State Board \\u2014 Claims \\u2014 Examination \\u2014 Discretion. \\u2014 While the state board of examiners in the consideration of claims against the state acts in a quasi judicial capacity, and may exercise discretion in the discharge of its official duties, it may not arbitrarily refuse to allow a claim involving questions of law only, and, if it does so, the claimant may maintain mandamus to compel the allowance of the claim.\\n6. Same \\u2014 Supreme Court \\u2014 Original Jurisdiction \\u2014 Mandamus.\\u2014 The power of the Supreme Court to issue mandamus is not limited to appellate proceedings, but extends to the enforcement of official action by the state board of examiners.\\nOriginal application in tbe Supreme Court for mandamus by tbe State, on relation of Justin R. Davis, petitioner, against John C. Cutler and others, constituting tbe State board of examiners.\\nJUDGMENT EOR PETITIONER.\\nThurman, Wedgwood & Irvine for petitioner.\\nM. A. Breeden, Atty. Gen., and A. B. Barnes, Asst. Atty. Gen., for respondents.\\nMill v. Brown, 31 Utah 473, 88 Pac. 609, Marioneaux v. Cutler 32 Utah 475, 91 Pac. 355.\\nThoreson v. State Board of Examiners, 19 Utah 18, 57 Pac. 175.\\nState v. Morse, 31 Utah 213, 87 Pac. 705.\", \"word_count\": \"3466\", \"char_count\": \"20318\", \"text\": \"FRICK, J.\\nTbis is an original proceeding commenced in this court by tbe relator as court stenographer for Hon. C. W. Morse, one of tbe judges of the district court of the Third judicial district of this state, against the respondents, constituting the state board of examiners of the state of TJtah. The same matters involved -in this proceeding were before this court in the case entitled State v. Edwards, 93 Pac. 720, where we held that, in view of certain constitutional provisions, the claim in question; is one which ought to be presented for allowance to the state board of examiners. It now appears from the pleadings that the claim has been so presented to \\u00e1nd has been disallowed by said board of examiners, and the relator has therefore instituted this proceeding to compel said board to audit and allow the claim in question.\\nThe claim of the relator arises under a legislative act passed in 1899 (Laws 1899, p. 112, c. 72), which act has been carried into the compiled Laws of Utah of 1907, constituting sections 721 to 728x1, inclusive, of that compilation, and which compilation will hereafter be referred to instead of the original act. By sections 721 and 722 among other things it is in substance provided that the judges of the district courts of this state may contract with and employ competent persons as court stenographers to report the proceedings of such courts; that said contracts shall provide that such stenographers shall attend each sitting of the court and make full stenographic notes of the testimony and proceedings, which notes shall be filed with the clerk of the court; that such contracts shall provide the rate of compensation to be paid to the stenographers, which shall not exceed the sum of $8 for \\\"each sitting of the court;\\\" that \\\"such contract shall further provide that the said stenographer shall hold his employment at the pleasure of the judge of the court appointing him, or his successor, and may also provide that said stenographer shall be paid not to exceed ten cents per mile for each mile actually traveled by him in the performance of his part of said contract, and the amount of such mileage shall be certified by the court to the State Auditor, who shall draw his warrant upon the State Treasurer for tire amount to.' certified, -and tbe same shall be paid out of the state treasury.\\\" Under the provisions aforesaid the relator instituted proceedings asking for a writ of mandate to compel' the State Auditor to draw a warrant for the mileage certified to by the judge, as appears from the case of State v. Edwards, supra. The writ was denied in that case for the reasons there stated. Since that decision the relator has presented the claim for allowance to respondents, constituting the state board of examiners, and that board has rejected his claim upon the ground, as we understand it, that the judge did not certify that the amount of the claim for mileage, to wit, ten cents per mile, was' actually paid by the stenographer, and that the stenographer did not claim that the amount was actually paid by him in traveling from place to place while engaged in the performance of official duties under the contract.\\nIt is admitted by respondents that the relator is a duly appointed court stenographer; that he entered into' a contract with the district judge aforesaid as provided in the sections above referred to; that the number of miles as claimed by him were actually traveled in the discharge of official duties in pursuance of said contract; that the contract provides for mileage at the rate of ten cents per mile; and that the certificate of the judge is regular upon: its face. Indeed there is no dispute with regard to any matter of fact, but the board justify their action in disallowing the claim entirely upon questions of law, viz.: (1) That the judge did not have the authority to contract for mileage in excess of the amount actually paid, and in no event to exceed ten cents per mile; and (2) that in the general appropriation bill of 1907 the Legislature limited the payment of mileage to be paid to' court stenographers to the amount actually paid out by them. In view of this, it is asserted by respondents that, since it is not made to appear that the mileage claimed by the relator was actually paid by him, he therefore does not state sufficient facts to entitle him to the relief prayed for notwithstanding the admitted facts. Upon the oral argument the deputy attorney general did not seriously contend that the judge did not have the authority, under the provisions of the section above quoted, to contract for and allow mileage to the extent of ten cents per mile. Indeed the language of the statute is so plain upon that point that it requires no construction. We, therefore, need not dwell upon the reasons why the Legislature permitted the judge and stenographer to agree upon the rate of mileage within the limits fixed in the statute. It being admitted that the claim of the relator is for mileage actually traveled in pursuance of a contract duly entered into in January, 1905, and that the amount claimed is within the rate allowed by the law in pursuance of which the contract was entered into and under which it was in force at the time the mileage was earned, there seems no escape from the conclusion that the contention of the respondents that the facts stated upon this ground are insufficient should be overruled.\\nThe respondents, however, contend that the relator cannot recover the amount claimed by him because the Legislature, in the general appropriation act of 1907 (Laws 1907, p. 172, c. 123), limited the mileage to be paid to the amount actually paid by the stenographer; that the re^ lator does not allege that the amount claimed by him was actually paid for that purpose; and that therefore the allegations are insufficient to entitle him to recover. It is true that under the general title of \\\"an act mailing appropriations for general purposes\\\" the Legislature, in making the usual appropriation for the two following years for mileage and per diem for court stenographers, limited the payment for mileage to the amount actually paid. It seems clear to us, however, that it was not the intention of the Legislature to have this limitation apply to contracts in force under the section above referred to. It would'be unreasonable to assume that the Legislature intended to amend or modify that section in the brief statement contained in the general appropriation act of 1907. But, if we assume that it was the intention to do this, did the Legislature have the power to amend, modify, or repeal a gen eral' law by merely inserting a conflicting clause or phrase into the general appropriation act? While under the \\\"Constitution general appropriation bills are exempted from the general constitutional provision which requires that all bills must contain but one subject, which must be clearly expressed in the title, it does not follow that general laws may be amended, modified, or repealed by a general appropriation act under such a general title. The Legislature had the undoubted right to amend, modify, or repeal the section in question in any respect and at any time. But in order to do this the Legislature would have to comply with the constitutional provision relative to the amendments or modifications of existing laws. If'it was intended to directly modify or amend a particular chapter or section, the Constitution required that the chapter or section amended or modified be re-enacted in the form as modified* or amended, and not by mere reference to the law intended to be modified or amended. It is true that we held in Mill v. Brown, 31 Utah, 473, 88 Pac. 609, and in Marioneaux v. Cutler, 32 Utah 475, 91 Pac. 355, in harmony with the great weight of authority, that this constitutional provision does not apply to independent acts, and, further, when there is an irreconcilable conflict between a later and a prior law, that the later one-repeals the former by implication. These rulings are, however, based upon the ground that the independent acts otherwise conform to the constitutional requirements with regard to both form and substance. We are not prepared to-go to the extent of holding that a substantive law may be either amended or modified, nor' may. it be repealed by implication by a general appropriation act under a general title such as permitted in such acts. If this may be done, we know of no law fixing legislative'salaries or official compensation of any kind that may not be amended or repealed by a general appropriation act. The committee having such a bill in' charge might, in connection with each item of appropriation, add any provision which would.amend or by implication repeal any existing law so that it would be almost impossible for any officer to know the state of the law with regard to the compensation of legislative offices. Moreover the members of the Legislature not of the particular committee might thus be entrapped into voting upon any number of subjects entirely foreign to mere appropriations of money without intending to do' so. If it were the intention of the Legislature to amend the section in question, they were required to do this by a special amendatory act which conformed to the constitutional requirement, or by an independent act covering the subject-matter of stenographers' mileage. If the provisions of such an independent act were in irreconcilable conflict with the former law upon the subject, although the latter did not in terms repeal the former, it would still amount to a repeal of the former by unavoidable implication. But the general appropriation act of 1901 was not intended to be an independent act upon the subject of the appointment of court stenographers, nor upon the question of fixing or limiting their compensation. The Legislature had the undoubted right to limit in amount any general or special appropriation, or refuse to make any at all; but it could not reduce nor increase the compensation otherwise fixed by the law or by a contract authorized by law in a general appropriation act.\\nThe respondents have cited several1 cases which are claimed to support their contention. The case of Collins v. State, 3 S. D. 18, 51 N. W. 176, is especially relied on. That case is, however, clearly distinguishable from the one at bar. In that case the officer whose salary was in question was holding under a territorial appointment and under a law which provided that the term of all officers appointed by the territorial Governor should terminate in ten days after the term of the Governor making the appointment expired. When the territory of Dakota was divided into two equal parts, the south half was created into the state of South Dakota. The officer in question held his office under an appointment calling for his duties to be performed within the entire territory, and when the territorial Governor ceased to hold office in South Dakota the officer in question still continued to discharge the duty of veterinary surgeon within the new state of South Dakota. The newly adopted Constitution of South Dakota contained a special provision as follows: \\\"No warrant shall' be drawn upon the State Treasurer except in pursuance of an appropriation for the specific purpose first made.\\\" The first Legislature of the new state of' South Dakota made a specific appropriation for the salary and expense of this veterinary surgeon of about one-half of what he had received under the territorial appointment. He sued for the difference, and the court held that under the constitutional provision above quoted no warrant was authorized for an amount greater than the amount specially 'fixed by the Legislature for that purpose. It was further held that under the particular facts and circumstances of that case the officer had \\\"no cause of action against the state of South Dakota. The other cases cited are from the Supreme Court of the United States in which it is held that, where Congress fixed the amount to be paid for official compensation or salaries in an appropriation act, although the appropriation may be less than the amount fixed in another statute,\\\"if the appropriation specially states the amount appropriated to be in full for all compensation, the appropriation repeals by implication the former law with respect to the amount to be allowed and paid for the additional services. This rule is, however, not controlling in all cases, as is well illustrated in the case of United State v. Langston, 118 U. S. 389, 6 Sup. Ct. 1185, 30 L. Ed. 164, in which the cases pited by counsel for respondents are reviewed and distinguished. The case of Strong v. United States (D. C.), 34 Fed. 17, has no application here. In this connection, however, it must not be overlooked that there are no such constitutional restrictions upon Congress in passing, amending, and modifying existing laws as are imposed upon the Legislature of this state. The rulings of the federal courts upon these subjects, therefore, may or may not be authority upon any particular question. We are of the opinion, therefore, that neither the law as contained in section 722 aforesaid, nor the contract which was entered into in pursuance of tlie provisions of that section, were affected or modified by tbe general appropriation act of 1907.\\nIt is further urged tba.t a writ of mandate should not issue against respondents for the reason that in passing upon claims against the state they act in a quasi judicial capacity and must therefore be permitted to exercise the discretion, usually exercised by such boards. That respondents do act in such a capacity, and that they may exercise discretionary powers in the discharge of their official duties in passing upon and in allowing or rejecting claims, does not admit of doubt. But this discretion is not one that may be arbitrarily exercised so as to prevent a claimant from seeking redress in the courts where purely questions of law are involved. In such cases even courts may be compelled to> proceed to judgment, and, where the law directs what the judgment shall be in case all the facts are found or admitted, a superior court may direct an inferior one with respect to the particular judgment that shall be entered by it. The power to do this is not limit\\u00e9d to appellate proceedings, as is illustrated in the case of State v. Morse, 31 Utah 213, 87 Pac. 705. In this case the essential facts entitling the relator to have his claim audited and allowed are all admitted. The questions, therefore, are purely questions of law. If the claim, therefore, is one which is admitted to be just, and is authorized by law, and there is no dispute with regard to any fact involved, and the claim is presented to the board in due form as the law requires, we know of no law nor reason why respondents, although acting in a quasi judicial capacity, should not be required to audit and allow the claim. This is clearly the logic of the case of Thoreson v. State Board of Examiners, 19 Utah 18, 57 Pac. 175. While in that case it is also held that ministerial officers may not question the validity of the law under which they are required to act (a question not involved in this case, and upon which we express no opinion), the decision in that case nevertheless also rests upon the doctrine above announced. The following authorities likewise sris-tain the foregoing views, namely: Merrill on Mandamus, sec. 126; Mechem on Public Officers, sec. 968; High, Ex. Leg. Rem. (3d Ed.), secs. 101-113; Marioneaux v. Cutler 32 Utah 475, 91 Pac. 355.\\nIn view of the conceded facts, there is nothing upon which the respondents can legally exercise any discretionary powers in this case, and therefore they should have audited and allowed the claim. No doubt they would have done so had they not entertained a view of the law different from the one we feel constrained to take. In such a case it is clear that the law in effect directs what the action of the board shall be, and, this being so, there is no reason why the board of examiners should not be required to comply tvith what it commands. There would be something lacking in our system of government or jurisprudence if under such circumstances a claimant could be defeated simply because the officer or board required to audit and allow his claim exercised some discretion in the matter. Where the duty to act is clear, and the law gives a right to obtain payment of a claim owing by the state, courts should not hesitate to enforce the right by mandamus. It follows, therefore, that the relator is entitled to have his claim for mileage as set forth in his petition audited and allowed by the respondents as the state board of examiners.\\nIt is therefore ordered that a writ of mandate issue in the usual form directing the respondents as the state board of examiners of the state of Utah to audit and allow relator's claim for mileage as prayed for in the petition in the manner provided by law. The relator to recover costs.\\nMcCAETY, C. L, and STEAUP, J., concur.\"}"
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+"{\"id\": \"8872455\", \"name\": \"RICHMOND IRR. CO. et al. v. SHAW et al.\", \"name_abbreviation\": \"Richmond Irr. Co. v. Shaw\", \"decision_date\": \"1919-04-21\", \"docket_number\": \"No. 3187\", \"first_page\": \"379\", \"last_page\": \"385\", \"citations\": \"54 Utah 379\", \"volume\": \"54\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:07:00.416390+00:00\", \"provenance\": \"CAP\", \"judges\": \"CORFMAN, C. J., and-FRICK, GIDEON, and THURMAN, JJ., concur.\", \"parties\": \"RICHMOND IRR. CO. et al. v. SHAW et al.\", \"head_matter\": \"RICHMOND IRR. CO. et al. v. SHAW et al.\\nNo. 3187.\\nDecided April 21, 1919.\\n(181 Pac. 162.)\\n1. Appeal and Error \\u2014 Review\\u2014Findings on Conflicting Testimony. The Supreme Court is not justified in interfering with findings made upon conflicting testimony, unless clearly against the weight of the evidence. (Page 384.)\\n2. Waters and Water Courses \\u2014 Appropriation\\u2014Right Acquired. An irrigation company and a city had no right to interfere with the use of water hy a property owner, and no right without the owner\\u2019s consent to divert waters from a spring appropriated by the owner\\u2019s predecessor, even though they had supplied the owner with other water from this spring or from some other source. (Page 385.)\\n3. Waters and Water Courses \\u2014 Water Litigation \\u2014 Costs. Where a landowner had a right to a certain amount of waters of a spring in litigation and was not wrong in his objections to the actions of plaintiff\\u2019s in the suit into which he was brought by other parties, all the costs of plaintiffs should not be taxed against him, though the decree is partly adverse to him. (Pago 385.)\\nAppeal from District Court, First District,'Cache County; J. D. Call, Judge.\\nSuit by the Richmond Irrigation Company and Richmond City against Mathew H. Shaw and Christian >Ste Henson. From decree for plaintiffs, said Steffenson appeals.\\nAffirmed as modified.\\nK. K. Steffensen and Stewart, Steiuart & Alexander, all of Salt Lake City, for appellant.\\nNebecher, Thatcher & Bowen and A. A. Law, all of Logan for plaintiffs respondents.\\nWalter <& Harris of Logan, for respondent Shaw.\\nPlant v. Ritter, 47 Utah, 506, 155 Pac. 426; Woolf v. Gray, 48 Utah, 239, 158 Pac. 788; Folsom, v. Fernstrom, 43 Utah, 432, 134 Pac. 1021; Mayer v. Flynn, 46 Utah, 598, 150 Pac. 962.\", \"word_count\": \"2493\", \"char_count\": \"14786\", \"text\": \"WEBER, J.\\nThe ownership of what is hereinafter called the North spring, Spring No. 3, or the Lars -Johnson spring, is the only question -involved on the appeal of the defendant Christian Steffensen from a decree in favor of plaintiffs. '\\nIn 1860 a small community of people settled on the present site of Richmond, Cache county,' and erected a fort in which they lived. The settlers engaged in farming, and at .once commenced building ditches to supply themselves with water for culinary, stock-watering, and irrigation purposes. They first diverted the waters of Birch creek, a tributary of Cherry creek which flows down Cherry creek canyon westward into Cache valley. In this same canyon, towards its southerly side, is what is referred to in the record as \\\"spring area,\\\" sometimes as Birch creek springs, and sometimes as Lars Johnson springs. Birch creek springs constitute the headwaters of Birch creek, which flows from this source down into -the valley until it empties into Cherry, creek.' The spring area constitutes a swampy parcel of ground estimated'at six or seven rods across each way, and from that water issues in a flowing stream in three well-defined places referred to as Big spring, or Spring No. 1, Middle spring, or Spring No. 2, North spring, or Spring No. 3, the latter spring being also referred to in the record as the Lars Johnson spring. In addition there is some seepage from this whole \\u00e1rea which finds its way into Birch creek channel.\\nMore than 10,000 acres of land have been reclaimed and cultivated by the founders of Richmond city, this land being owned in severalty.\\nAmong others the district court found the following facts: That at the time of the settlement, the founders of Richmond, the predecessors in interest of the plaintiffs, diverted all the waters.of Birch creek and applied the same to the irrigation of their lands, and other purposes; that thereafter they diverted all the waters of Cherry creek and its tributaries, and applied said waters to beneficial uses, and have continued to so apply said waters; that tbe diversion, and applications of water were made and conducted as a community enterprise by voluntary association, and the distributions of water to the various appropriators have been made continuously from the time of the diversion by a recognized official called a water master who distributed the waters during the irrigation seasons to those entitled thereto; that thereafter the appropriators effected a de facto organization known as the Richmond irrigation district, which assumed and exercised further control over the diverting works and issued certificates to the diverters, designating the shares of water right owned by each, and this organization continued to distribute all the waters of Cherry creek and its tributaries, except such as were distributed and controlled by Richmond city, for a period of more than twenty years and until 1909, when the organization was dissolved, and all the holders of the so-called shares of the organization, who were the owners of right to the beneficial use of the waters that had been diverted, conveyed all their right to the diverting works and distribution system and to the uses of said waters to plaintiff Richmond Irrigation Company, a corporation, which issued to the owners and users of the water certificates of stock, one share for each share held by such persons in the Richmond irrigation district; that said corporation and Richmond city have continuously diverted, all the waters of Birch creek and of the Birch creek springs, and distributed the same to the stockholders of the Richmond Irrigation Company and to the inhabitants of Richmond city for irrigation, domestic, culinary, stock-watering, and municipal purposes.\\nThe court further found that Birch creek issues from the spring area, commonly called Birch creek springs or the Lars Johnson springs, and this spring area is fed and supplied by an underground current, which has its source eastward about a mile in Cherry creek and flows in a well-defined underground channel' from its source to said spring area, from which the waters issue ip a running stream in three- well-defined places referred to in the findings as Springs, Nos. 1, 2, and 3; that Spring No. 3 lies in and issues from the bed of the natural channel through which the waters - issuing from Spring No. 1 flowed continuously until the diversions and alterations by plaintiffs and their grantors and predecessors in interest; that in 1873 the predecessors in interest of plaintiffs diverted all the watprs of .Cherry creek, and commingled same with the waters issuing from said spring area, and thence forward until 1883 conducted all of said waters so diverted from Cherry creek, together with-all of the waters issuing from said spring and spring area, through the natural channel of Birch creek, and applied them to .the same uses to which they theretofore had devoted them; that in 1883 they constructed what was known as the \\\"Upper Ditch\\\"- and from such time until the present plaintiffs have diverted and used all of said waters, including the water from Spring No. 3.\\nThe court also found that defendants and their predecessors in interest never used any of the waters of Lars Johnson springs except as the same constituted a part of the waters of Cherry creek, or otherwise than in their turns as prorated to them by the water masters under the authority of the voluntary association which preceded the Richmond Irrigation District and under the authority of said Richmond Irrigation District during the period of its existence, and that they never used any of said waters since the dissolution of the Richmond Irrigation District save as stockholders of the Richmond Irrigation Company, except that the defendants and their predecessors in interest have used, by taking from the stream supplied by Cherry creek and its tributaries where the same flowed past the dwelling houses of defendants, sufficient of the waters thereof for their domestic and culinary needs, and have used water so flowing for watering their stock, but that there is no evidence from which the court can find the amount or quantity of water so used by the defendants and their predecessors in interest; that in 1916 the defendant Steffensen wrongfully diverted the waters of said springs, and prevented them from flowing into the diverting works of plaintiffs; that in the month of December, 1916, Richmond city diverted the waters of Spring No, 3 into its water pipes, which were interfered with by Christian Steffen-sen, who prevented plaintiff city from taking the waters from said spring into its pipe line and diverting the same, and thus deprived Richmond city of part of the water to which it was entitled; that the use of all of the waters of said Lars Johnson springs is necessary for the proper tilling of the lands of the stockholders of the plaintiff irrigation company, and for the supplying of the needs of the stockholders, and also of the inhabitants of Richmond city, for domestic, stock-watering, culinary, and municipal purposes during the whole of each year.\\nIn our opinion the findings of fact made by the court are supported by substantial evidence though there are many sharp conflicts in the testimony. The plaintiff produced the water masters who had distributed water from 1888 until 1916, with the possible exception of one or two years. All of them testified that the defendants' grantors had never used any water from the Lars Johnson spring, or Spring No. 3, or any of the Birch creek springs, except as shareowners of the voluntary organization and thereafter as stockholders of the Richmond Irrigation Company. Lars Johnson, who acquired a squatter's right in 1888, and who lived on the land on which these springs are situated until 1906, when he sold the land, to which he had secured a patent in 1901, testified that he never used any of the water from the Birch creek springs, or from either of them, nor from Spring No. 3, except as he was given permission by the water master. It also appears from his testimony, as well as from that of all other witnesses, that there was a ditch from Spring No. 3, or Lars Johnson spring, that passed near Johnson's house, and that this water was used by Johnson all the time for domestic, culinary, and stock-watering purposes. Johnson sold to William R. Tripp in 1906. Tripp, Avho occupied the land until 1913, when he sold to the defendant Shaw, claims to have used all the water from Lars Johnson spring without interruption and without asking permission of the water masters during all the time of his ownership. Mathew H. Shaw, the successor in interest to Tripp, also claims to have used all of the water in question until 1m sold to defendant Steffensen in 1916.\\nTbe evidence is conflicting as to tbe nse of tbe water of tbe Lars Johnson springs by plaintiffs from 1907 until 1915, but, as the trial court was in a much better position to determine from tbe testimony the ultimate facts than we are, we are not justified in interfering with findings made upon conflicting testimony, unless they are clearly against the weight of evidence. Plant v. Ritter, 47 Utah, 506. 155 Pac. 426; Woolf v. Gray, 48 Utah, 239, 158 Pac. 788; Folsom v. Fernstrom, 43 Utah, 432, 134 Pac. 1021; Mayer v. Flynn, 46 Utah, 598, 150 Pac. 962.\\nIt is undisputed that from the time that Lars Johnson occupied the Steffensen land in 1888 until plaintiffs attempted to interfere with it there was a stream from the Lars Johnson spring, or Spring -No. 3, that had been used by Johnson and his successors in interest for domestic, culinary, and stock-watering purposes. The district court found that the defendant Christian Steffensen is entitled to have sufficient of the waters of Cherry creek and its tributaries flowing in the natural channel thereof past his dwelling house to supply his needs for domestic and culinary uses and for the watering of his stock. The decree is in accordance with the conclusions of law on this subject. In our-'opinion tbe conclusion of law should have been that Steffensen should have sufficient of the waters of the Lars Johnson spring, and not generally of Cherry creek and its tributaries, for his use for the purposes mentioned, and such right should have been awarded him by the decree. Steffensen is entitled to the use of the water from that particular spring, and to the use of sufficient water for all of his domestic and culinary purposes and for watering-stock, and is entitled to have the waters of that spring conducted to his dwelling and to other points at which he had used the water. Plaintiffs had no right to interfere with that use, and had no right, without Steffensen's consent, to divert the waters from Spring No. 3, even though they had supplied Steffensen with other water from a different spring or from some other source. The conclusions of law and the decree should be modified so as to provide that Steffensen have the use of water from the Lars Johnson spring, or Spring No. 3, sufficient for Ms domestic, culinary, and stock-watering purposes, and that plaintiffs shall be entitled to the use of the waters of the Lars Johnson spring subject to the rights of Steffensen as hereinbefore stated. As there was no evidence before the court from which the amount of water used by Steffensen for those purposes could be determined, the decree is necessarily indefinite and uncertain. In order that this litigation be ended and the rights of the parties be determined as far as the Lars Johnson spring,' or Spring No. 3, is concerned, the district court is hereby directed to reopen the case for the purpose of permitting said Steffensen, if he so desires, to introduce testimony showing the amount of water heretofore used by him and his predecessors in interest from said Lars Johnson spring, or Spring No. 3, for the purposes before stated.\\nAppellant complains that in the decree the Steffensen property, and upon which these springs are situated, is misde-scribed. That is merely a clerical error, and the court is hereby directed to make the correction in the decree in accordance with the facts.\\nThe taxation of all costs against Steffensen is one of the assignments of error. As Steffensen concededly has the right to the use of a certain amount of the waters from the Lars Johnson spring, and as he was not wrong in his objections to the actions of the plaintiff Richmond city in laying the pipe line, and as he was brought into court by the other parties, we are wholly unable to perceive why, in justice and equity, all the costs of plaintiffs should be taxed against Mm. The district court is therefore ordered to further modify the decree herein by eliminating the costs taxed against the defendant Steffensen, and it is hereby ordered that respondents pay one-half and appellant one-half of the costs on appeal, and each pay his own costs in the district court.\\nSave as herein modified, the judgment is affirmed.\\nCORFMAN, C. J., and-FRICK, GIDEON, and THURMAN, JJ., concur.\"}"
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+"{\"id\": \"8872829\", \"name\": \"OGDEN CITY v. LEO\", \"name_abbreviation\": \"Ogden City v. Leo\", \"decision_date\": \"1919-06-26\", \"docket_number\": \"No. 3352\", \"first_page\": \"556\", \"last_page\": \"563\", \"citations\": \"54 Utah 556\", \"volume\": \"54\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:07:00.416390+00:00\", \"provenance\": \"CAP\", \"judges\": \"CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.\", \"parties\": \"OGDEN CITY v. LEO.\", \"head_matter\": \"OGDEN CITY v. LEO.\\nNo. 3352.\\nDecided June 26, 1919.\\n(182 Pac. 530.)\\n1. Innkeepers \\u2014 Police Power \\u2014 Power to Resulate Restaurants. In view of Comp. Laws 1917, section 570x38, conferring power upon cities to license, tax, and regulate restaurants, hotels, etc., and section 570x87, authorizing cities to pass ordinances necessary to preserve the morals, etc., a city is not without power to pass an ordinance reasonably regulating the business of conducting restaurants. (Page 560.)\\n2. MUNICIPAL CORPORATIONS-REGULATION OF OCCUPATIONS-\\u201cREGULATE\\u201d \\u2014 Meaning. The power of a city to \\u201cregulate\\u201d a particular calling or business as conferred by statute (Comp. Daws 1917, section 570x38) implies the right to prescribe and enforce all such proper and reasonable rules and reghlations as may be deemed necessary and wholesome in conducting such business in a proper and orderly manner (citing Words and Phrases, First and Second Series, Regulate.) (Page 560.)\\n3. Municipal Corporations \\u2014 Police Power \\u2014 Regulation of Business \\u2014 Reasonableness. An ordinance regulating a business must be reasonable, and its provisions cannot be oppressive nor an arbitrary interference with the business or calling which is regulated. (Page'562.)\\n4. Innkeepers \\u2014 Police Power \\u2014 Regulation of Restaurants \\u2014 Reasonableness. An ordinance prohibiting., the maintenance of booths exceeding certain specified dimensions in restaurants and public eating places, being designed to prevent persons inclined to violate both law and good morals from gathering in such places, is not an unreasonable interference with a legitimate business. (Page 562.)\\n5. Municipal Corporations \\u2014 Ordinances\\u2014'Validity\\u2014'Presumption. Where there is nothing on the face of an ordinance regulating the size of booths in restaurants to show it is unreasonable, that it is unwarranted interference with a proper business, or that the conditions in the city are not such as to require regulation, it will be presumed that the city authorities were warranted in passing the ordinance. (Page 562.)\\nAppeal from District Court, Second District, Weber County; A. E. Pratt, Judge. <\\nJohn Doe Leo was convicted of violating a certain ordinance of Ogden City, a municipal corporation, regulating restaurants or public eating places, and appeals.\\nAffirmed.\\nA. G. Morn and George Halverson, both of Ogden, for appellant.\\nW. E. Reeder, Jr., and D. L. Stine, both of Ogden, for respondent.\", \"word_count\": \"2614\", \"char_count\": \"15576\", \"text\": \"FRICK, J.\\nThe defendant was charged with and convicted of violating a certain ordinance of Ogden City regulating restaurants or public eating places, and appeals.\\nThe part of the. ordinance which is in question here reads as follows:\\n\\\"It shall be unlawful for any person, firm or corporation to keep, maintain, or operate any such public eating or drinking place containing in the public eating or drinking room or hall thereof any booths or stalls constructed-by means of or by the use of partitions, curtains or screens which shall be .higher than three feet six inches from the surface of the floor of such room or hall provided that on any mezzanine, or higher floor, or platform of such public dining or drinking room or hall, and wholly within such room or hall, enclosed by the walls and ceiling, it shall be unlawful to keep or maintain any such booth or stall of any height, kind or description.\\n\\\"To improve the morals, peace and good order of the inhabitants of Ogden City it is'deemed necessary by the board of commissioners thereof that this ordinance be passed and become effective immediately.\\\"\\nThe facts disclosed by the record are very brief. The defendant owns and conducts a public eating place under the name of \\\"Alhambra Caf\\u00e9.\\\" The room in which the business is conducted is approximtaely one hundred and ten feet in length north and south and about twenty-five feet wide-east and west. In the front part of the room there is an open space of about twenty-five by twenty-five feet, on one side of which are four tables with four chairs to each table and on the other side two tables with chairs and a desk in front of the two tables. Immediately back of this open space the defendant maintains what are called \\\"booths,\\\" of which there are four along the- east wall or side of the room and four along the west side with an alleyway between the booths six feet in width. The walls of these booths are made of thin boards seven feet high, and the booths are seven feet square with a doorway three feet six inches wide leading from the alleyway aforesaid into each booth. These booths, eight in number, therefore, constitute eight private rooms or compartments; each room having a table and four chairs.\\nThe validity of the ordinance prohibiting the maintenance of such booths is assailed upon two grounds: (1) That Ogden City exceeded the power conferred upon it by the statute in adopting- the ordinance; and (2) that the ordinance is unreasonably oppressive and constitutes an undue interference with a legitimate and lawful business, and is for that reason Void. Tn support of their contention, counsel for defendant have cited the following cases: Bennett v. Pulaski, (Tenn. Ch. App.) 52 S. W. 913, 47 L. R. A. 278; Champer v. Greencastle, 138 Ind. 339, 35 N. E. 14, 24 L. R. A. 768, 46 Am St. Rep. 390; Long v. Tax District, 75 Tenn. (7 Lea) 133, 40 Am. Rep. 55: Yee Gee v. San Francisco (D. C.) 235 Fed. 757; People v. Chicago, 261 Ill. 16, 103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292; People v. Oak Park, 268 Ill. 256, 109 N. E. 11; State v. Ashbrook, 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 265, 77 Am. St. Rep. 765. While in some of the foregoing cases it is held that the municipality was without authority to pass the ordinances there in question, yet the holding are all under statutes different from ours, and the regulations and restrictions there imposed were of quite a different nature. We shall hereinafter more fully consider some of the foregoing cases.\\nReferring now to our statute, we find that Comp. Laws Utah 1917, section 570x38, among other things, expressly confers power upon all the cities of this state to \\\"license, tax and regulate restaurants, hotels, taverns, theaters, opera houses, music halls, boarding houses, eating houses, chop houses, lodging houses,\\\" etc. The statute (570x87) further authorizes all cities to \\\"pass all ordinances and rules, and make all regulations, not repugnant to law, necessary for carrying into effect or discharging all powers and duties conferred by this chapter, and such as are necessary and proper to provide for the safety, and preserve the health, and promote the prosperity, improve the morals, peace, and good order, comfort, and convenience of the city and the inhabitants thereof,\\\" etc. The statute thus confers ample power upon cities to make all reasonable and proper regulations of the various business enterprises mentioned in the statute. Notwithstanding the foregoing provisions, counsel for defendant contend that all that Ogden City is empowered to do by virtue of the foregoing provisions is merely to \\\"require the parties engaged in a business to take out a license and regulate its collection.\\\" In our judgment such is not the usual and ordinary meaning given to the term \\\"to regulate\\\" by the courts. A large number of adjudications of the phrase \\\"to regulate\\\" are given in 4 \\\"Words and Phrases, second series, 234, among which are the following:\\n\\\" 'To regulate' means to adjust by rule, method, or established mode; to subject to governing principles or laws.\\\"\\nAgain:\\n\\\" 'To regulate' means to prescribe the manner in which a thing licensed may be conducted; a license itself being the permit or authority to conduct and carry on.\\\"\\nAnother:\\n'While the word 'regulate' has been given a comprehensive meaning and construed to signify both government and restriction, thereby including in an act all subjects germane to the subject named, it does not so much imply creating a new thing as arranging in proper order and controlling that which already exists.\\\"\\nThe foregoing illustrations are quite sufficient to show that, where the power \\\"to regulate\\\" a particular calling or business is conferred on a city, it authorizes such city to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary and wholesome in conducting the business in a proper and orderly manner. To \\\"regulate\\\" therefore implies the right to prescribe rules and regulations for the conduct of the business regulated. The statute, in authorizing the cities of this state to regulate restaurants and eating houses, therefore, conferred the power upon Ogden City to pass reasonable ordinances regulating such enterprises. The contention that Ogden City was without authority to pass an ordinance regulating the business of conducting restaurants or eating houses must therefore fail. '\\nThis brings us to the second assignment, namely, is the ordinance in question invalid upon the ground of being oppressive or an unreasonable interference with a legitimate business enterprise ? While it is true that a business may be regulated, it is equally true that sueb regulation must be within the bounds of reason; that is, the regulatory ordinance must be reasonable, and its provisions cannot be oppressive and a mere arbitrary interference with the business or calling which is regulated. A lav/ful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of the police power. The question therefore is: Is the ordinance in question, in prohibiting the maintenance of booths as therein set forth/ an unreasonable interference with defendant's business? The record is entirely devoid of anything from which we can judge or determine the condition prevailing in Ogden City which may have induced the city authorities to pass the ordinance in question. In that regard counsel have not taken us into their confidence, except the statements made at the oral argument, and therefore all we judicially know is what is disclosed in the ordinance itself and what counsel have seen fit to tell us. In the' absence of facts to the contrary, we must assume that the city authorities were warranted in passing the ordinance. The general rule in that regard is well stated by the annotator in the notes to the case of State v. Atchison, reported in 92 Kan. 431, 140 Pac. 873, Ann. Cas. 1916B, at page 504, where it is said:\\n\\\"It is generally presumed that conditions exist which make ordinances necessary or proper for the welfare of the community.\\\"\\nA large number of eases from numerous jurisdictions are cited in support of the text to which we shall not specially refer here. The same thought is expressed in another form in Seattle v. Hurst, 50 Wash. 424, 97 Pac. 454, 18 L. R. A. (N. S.) 169, where the following language is adopted from Horr and Bemis, Municipal Police Ordinances, section 127:\\n\\\"An ordinance to be void for unreasonableness must be plainly and clearly unreasonable. There must be evidence of weight that it took inception either in a mistake, or in a spirit of fraud or wantonness on the part of the enacting body.\\\"\\nTo the same effect are Sandys v. Williams, 46 Or. 327, 80 Pac. 642; Pate v. City of Jonesboro, 75 Ark. 276, 87 S. W. 437, 112 Am. St. Rep. 55, 5 Ann. Cas. 381; State v. Barge, 82 Minn. 256, 84 N. W. 915, 53 L. R. A. 428; and numerous cases cited in those cases. Indeed, the case of Pate v. City of Jonesboro, cited above, is quite analogous to the case at bar, and in that case the ordinance was sustained.\\nWe therefore are required to presume that the local con-ditiohs in Ogden City are such as to justify the city authorities to regulate the conduct of restaurants or eating houses in the manner prescribed in the ordinance. The ordinance certainly is not such that we can as matter of law declare that upon its face it is unreasonably oppressive or that it constitutes an unreasonable and unwarranted interference with the conduct of the restaurant business upon the one hand, nor, upon the other, that under no circumstances can the prevailing conditions in Ogden City be such as to require the regulation prescribed in the ordinance. Every presumption, as we have pointed out, is in favor of the validity of the ordinance. Unless, therefore, the regulation prescribed in the ordinance is manifestly oppressive or necessarily constitutes an unreasonable and unwarranted interference with defendant's business under any possible view that can be taken of the local situation, we must uphold the ordinance. We confess our entire inability to discover anything in the ordinance that is unreasonably oppressive or Avhich constitutes an undue interference Avith the business of con ducting a restaurant. We have a right to assume that the purpose of the ordinance is merely to prevent persons of both sexes who have regard for neither the law nor good morals from meeting at late and unusual hours of the night and entering those booths where they can avoid detection and can indulge their propensities for violating both the law and good morals. It certainly cannot be said that law-abiding persons and all those who frequent restaurants and public eating places only for the purpose of obtaining refreshments desire seclusion from the eyes of others who may also be in the place for the same purpose. We know, as all men know that the best and largest dining rooms everywhere are open and that the respectable and law-abiding men and women dc not seek closed booths or dark rooms when they go to a pub lie eating place to eat their meals. The fact that an ordinance like tbe one in question here was deemed necessary to regulate public eating places is no reflection either upon the good morals or the law-abiding propensities of the good people of Ogden. It reflects credit upon the city authorities rather than discredit. Similar ordinances might well be adopted and-enforced in any city of the size of Ogden. There is nothing to the contrary to what we here hold in any of the cases cited by defendant's counsel. The principle announced in the case of Yee Gee v. City of San Francisco (D. C.) 235 Fed. 753, has no application here. In that case the city of San Francisco prohibited all work in laundries between the hours of 6 o'clock p. m. and 7 o'clock the following morning. The ordinance was held invalid by the federal court upon the ground that it applied to all parts of the city of San Francisco without regard to conditions or surroundings, and that it was in fact an attempt to regulate the hours of labor and not the business. Any one with but slight reflection would readily understand that the- purpose of the ordinance was merely to prevent small laundries from carrying on therf business at hours different from those establishments which employed a large number of hands all of whom could generally be governed by union hours. It therefore is easy to perceive why the court- refused to uphold the ordinance. The other cases illustrate interferences not authorized by the statute. There is nothing of the kind in this state.' \\\"What is sought to be done and what is done by the ordinance in question here is to regulate the conduct of the business and to prevent the concealment of evilly disposed persons under the guise that they are merely \\\"taking their meals.\\\" We can discover no reason for holding that the ordinance in question is invalid.\\nFor the reasons stated, the judgment of the district court is affirmed; respondent to recover costs of printing its brief.\\nCORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.\"}"
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+"{\"id\": \"8872862\", \"name\": \"THE TERRITORY v. WOOLSEY\", \"name_abbreviation\": \"Territory v. Woolsey\", \"decision_date\": \"1867-10-24\", \"docket_number\": \"\", \"first_page\": \"470\", \"last_page\": \"474\", \"citations\": \"3 Utah 470\", \"volume\": \"3\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:06:49.846946+00:00\", \"provenance\": \"CAP\", \"judges\": \"Drake and McCurdy, JJ., concurred.\", \"parties\": \"THE TERRITORY v. WOOLSEY.\", \"head_matter\": \"THE TERRITORY v. WOOLSEY.\\n[October 24, 1867.]\\nEvidence for Defendant Charged with Larceny. \\u2014 Evidence that S. had offered for sale to C., at or about the time of an alleged larceny by defendant, stock similar to that with the larceny of which defendant was accused, and that subsequently defendant had stated to C. he had purchased this stock of S., is material and competent testimony for defendant, as tending to disprove a felonious taking.\\nA Sentence against a Defendant Convicted of a Crime will be Reversed where it appears from the indictment and other parts of the record that the grand jurors who found the indictment were not residents of the county for which they were chosen, and have not taken the requisite oath prescribed by law.\\nAppeal from the third district. The opinion states the facts.\\nZerubbabel Snow, for the territory.\\nIiemfstead & Thurman, for the respondent.\", \"word_count\": \"1741\", \"char_count\": \"9894\", \"text\": \"Titus, C. J.:\\nOn the twenty-second of December last, the defendant above named was tried by jury in the probate court of Great S\\u00e1lt Lake county, in the territory of Utah, on an indictment which the record brought here alleges was found by \\\"the grand jury of the people of the United States in the territory of Utah, summoned, called, impaneled, sworn, and charged to inquire into crimes and offenses committed in the body of the county of Great Salt Lake,\\\" charging the said defendant with larceny in stealing, \\\"on the fourteenth day of October, in the year of our lord one thousand eight hundred and sixty-sis, at the West Jordan range in the county of Great Salt Lake, in the territory of TJtah,\\\" a \\\"light roan steer\\\" \\u00e1nd a \\\"heifer,\\\" etc. This is the description of the property and offense in the first count of the indictment, and it is continued in the second with but little variation.\\nThe jury returned a verdict of \\\"guilty;\\\" and on the twenty-second of January, 1867, the probate court, overruling a motion in arrest of judgment, sentenced the defendant to six months imprisonment at hard labor in the Utah penitentiary.\\nFrom this judgment of the probate court an appeal was taken to the district court of the third judicial district of Utah, in which the said judgment was reversed on the fifteenth of March, 1867; and from its judgment of reversal an appeal brings the record here, which was submitted to this court without formal argument.\\nPrevious to the trial, the defendant, on the nineteenth of December, 1866, moved the probate court to continue his cause, in consequence of the absence of a witness of the name of W. B. Cadwell of Great Salt Lake City, who, it was alleged by the defendant, would be procurable at a future time, and would prove, among other things, \\\"that some six weeks or two months before,\\\" he was going across the Jordan to look for a horse, when the said Cadwell met a William Schofield, who was driving two beef animals, one a stag of roan color and the other a red heifer; that the said Schofield offered to sell \\\"these cattle\\\" to the said Cadwell, but differed in reference to the kind of pay to be given; that the said Cadwell returned to the city some time in the afternoon of the same day, and met the deponent, who then and there informed the said Cadwell that he had purchased the cattle from the said Schofield, giving a certain dark bay or brown horse for the said cattle; that the said Cadwell knew the defendant owned such a horse \\\"before, and\\\" never afterwards \\\"saw\\\" him in. possession of the defendant, \\\"that the said facts (were) material to the defense;\\\" and \\\"that he\\\" could \\\"not prove\\\" them \\\" by any other person.\\\"\\nTo avoid delay, it appears by the record that the counsel for the prosecution agreed to submit the affidavit containing this statement of facts to the jury as evidence on the trial. The probate court, however, excluded it as irrelevant, and exception was taken, as appears by the record, to this exclusion.\\nThe attention of this court was directed to two other errors apparent on the record: one, that the indictment does not allege that the grand jurors were taken from Great Salt Lake county; the other, that the oath administered to these grand jurors, and which is set out in the indictment, was not such as is required by the statutes of Utah.\\nTaking these exceptions in the order of their statement, the evidence, which the record shows to have been excluded, appears to have been vitally material to the case. It would have shown that at or about the time of the larceny alleged in the indictment, a man of the name of Schofield offered to sell cattle of the same description as those alleged to have been stolen to William B. Cadwell; that but for their disagreement as to the medium or manner of payment, Cadwell would himself have bought the cattle; that as it was, the defendant himself purchased them, in the same direction and not far from where the larceny is alleged in the indictment to have been committed; and that he spoke to Cadwell the same day of his purchase, and of his giving in exchange for them a horse which Cadwell knew he owned before but not after the transaction.\\nSuch facts as these certainly ought to have been submitted to the jury, with the favorable notice of the judge, tending as they did to prove that the defendant acquired the cattle alleged so have been stolen by honest purchase, and not by felonious taking. By no rule of law or common sense known to the administration of justice ought such evidence to have been withheld by the probate court, and its act in doing so divests its subsequent proceedings in the case of all validity. For this error of the probate court, if no other were apparent on the record, its judgment in this ease ought to be reversed.\\nAs a further exception, however, it appears that the indictment purports to set out the qualifications of the grand jurors, and does it in such a manner as to show that it was not competent by the statutes of the territory of Utah. And as a still further exception, it appears that the oath which the indictment shows to have been administered to the grand jury in the case was defective in one or more of the essentials required by the same statutes.\\nThe \\\"Act regulating- the mode of procedure in criminal cases,\\\" approved January 21, 1853, provides: \\\"Sec. 17. When necessary, the court shall issue an order requiring an officer to summon fifteen judicious men, residents of the county, for a grand jury, who shall be sworn to inquire faithfully into offenses, and present indictments by the agreement of at least twelve of their number against offenders, who shall be prosecuted, and the foreman shall have power to swear witnesses and compel their attendance.\\\"\\nWhen an officer or any body of officers of the court is referred to merely by title, it is not necessary to detail the mode of appointment, the qualifications, the powers, or the duties of the officer or officers of the reference. And when any function or procedure of the court is to be stated on the record with the mere ordinary conditions of its exercise, details are wholly unnecessary. But when the record of any case shows an actual Avant of the requisite qualifications in any officer or officers or the court, or an essential defect in its procedure, this is always such error as must expose its proceedings to reversal by any court charged with the duty of revision. Noav, the record of this case, which describes the grand jury, and to some extent purports to set out its qualifications, absolutely omits to state that those composing it were \\\"residents of the county\\\" of Great Salt Lake, which comprised the jurisdiction of the court, and constituted the very body for and over which the grand jurors were charged to inquire. As this qualification, residence \\\" of the county,\\\" is thus required by the very letter of the Utah statute, as well as by the example of every known judicial system of which the jury is an element, its omission from this description of the grand jury is a fatal error.\\nFrom all that appears in the record, the grand jurors, or some of them, may have been residents of some other county of Utah, or even of some neighboring state or territory. Were the title \\\"grand jury\\\" or \\\"grand inquest \\\" alone given, without any detail of qualifications, the legal requisites might be pre- Burned; but in tbe face of partial and defective statements of qualification, tliis court can not imply any essential as belonging to tbe grand jury of this or any other case.\\nTbe indictment also states that tbe grand jury \\\"were summoned, called, impaneled, sworn, and charged to inquire into crimes,\\\" etc. Tbe statute, however, requires that they shall be sworn \\\" to present indictments by tbe agreement of at least twelve of their number.\\\" The record of this case shows that neither by the oath nor in any way was the grand jury instructed in this essential of duty, nor that at least twelve of the number did agree to the indictment. From all that appears, it may be inferred that four, five, six, or any number less than twelve, may have found the indictment in the present case. And this is the omission of a most essential requisite, for all experience shows that four, five, six, or any number less than twelve, of fifteen men, would be more likely to combine, in permitting a guilty man to escape or in making an innocent one suffer, than a larger number of the same body. Against a defective and erroneous oath which the record of the case shows to have been administered to the grand jury, this court cannot presume that at least twelve men concurred in the indictment under consideration. And for this reason, if for no other, the district court's judgment of reversal ought to be sustained.\\nFor the foregoing reasons, the judgment of the district court reversing the judgment of the probate court in the present case ought to be affirmed, and the county of Great Salt Lake ought to pay the costs of the same.\\nDrake and McCurdy, JJ., concurred.\"}"
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+"{\"id\": \"8872906\", \"name\": \"ANDERSON v. MAMMOTH MINING CO.\", \"name_abbreviation\": \"Anderson v. Mammoth Mining Co.\", \"decision_date\": \"1907-12-09\", \"docket_number\": \"No. 1855\", \"first_page\": \"144\", \"last_page\": \"147\", \"citations\": \"33 Utah 144\", \"volume\": \"33\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:56:59.128150+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCARTY, C. J., and FRICK, J., concur.\", \"parties\": \"ANDERSON v. MAMMOTH MINING CO.\", \"head_matter\": \"ANDERSON v. MAMMOTH MINING CO.\\nNo. 1855.\\nDecided December 9, 1907\\n(93 Pac. 190).\\nMaster and Servant \\u2014 Personal Injuries \\u2014 Unsafe Place fob Work \\u2014 Instructions. In an action by an employee for injuries, plaintiff testified that while oiling machinery in defendant\\u2019s mill he stepped on an unfastened plank in a platform provided for oiling the machinery and was injured. The evidence warranted a finding that the plank was not fastened when laid, or that defendant by ordinary care could have discovered its unfastened condition prior to the accident, and should have fastened it. Held, that the court properly instructed that, if plaintiff\\u2019s testimony was believed, the plank was a place furnished by defendant for plaintiff to work on; that it was defendant\\u20193 duty to use ordinary care to make it reasonably safe; and that it was not reasonably safe, and by ordinary care it could have been made so, and plaintiff, while using ordinary care for his own safety while at work, was injured by reason thereof, the jury should find for plaintiff.\\nAppeal from District Court, Eiftb District; Joshua Greenwood, Judge.\\nAction by Peter Anderson against the Mammoth Mining Company. Judgment for plaintiff, and defendant appeals.\\nAppirmed.\\nEdwards, Smith & Price for appellant.\\nPowers i& Marioneaux for respondent.\", \"word_count\": \"1266\", \"char_count\": \"7222\", \"text\": \"STEAUP, J.\\nThis is an action for personal injury, alleged to have been suffered by plaintiff through the negligence of the defendant. The defendant was engaged in the business of mining and milling. It maintained a number of vanners at its mill, which were operated by shafts, belts, and pulleys about twenty feet above the floor upon which the vanners stood. The plaintiff was in the defendant's employ. His duties were attending the vanners and oiling the shafts and' other machinery. It was alleged that it was the duty of the defendant to provide and maintain a platform or walk to enable the'plaintiff to move along the shafts'and about the machinery in the performance of his duties; that the defendant's duty was not performed, in that it negligently suffered a plank -of the walk to be and remain unfastened; and that the plaintiff, ini the discharge of his duties, stepped on the unfastened plank and was precipitated to the floor below, a distance of about twenty feet. That there was a platform or walk provided by the defendant, and for the purposes alleged, is not disputed. Such walk consisted of two boards or plank laid side by side and fastened to the timbers or the framework of the building, and so extended along the shafts and other machinery above the floor. On behalf of plaintiff there is evidence tending to show that at the time of his injury one of-the boards of the walk was, and for three or four days prior thereto had been, loose. Plaintiff's testimony also shows that in moving about from place to place oiling the shafts and other machinery he stepped on the loose board and was thrown to the floor of the building, and that prior thereto he was without knowledge of the loose condition of the board. On behalf of the defendant there is evidence tending to show that the plaintiff, at the time of his injury, was not making use of the walk, but was attempting to move about from place to place on the timbers, the framework of the building, and in doing so, slipped and came in contact with the belts. Among other things the court charged the jury: ' \\\"(5) You are instructed that if the plaintiff had the choice of two or more ways of performing his duties, the one safe and the other dangerous, it was his duty both to himself and to his employer to select the safer way to perform his duty; and if, in selecting the safer way of doing his work, he proceeded in the manner' attendant with greater risk, and as a result received the injury complained of in this action, and. if he knew or ought to have known- of the safer way to perform his duties, you will find for the defendant.\\\" \\\"(A) You are instructed that the plank testified to by plaintiff, upon which he claims he was. required to walk in order to do his oiling was, if bis statement was believed by the jury, a place furnished by the defendant company upon which plaintiff was to do his work, and it was the duty of the defendant to use ordinary care to malee it reasonably safe for the plaintiff to walk thereon in the manner that he was required to walk. If you believe from the evidence that it was not reasonably safe for that purpose, and that by ordinary care it could have been made reasonably safe and that the accident happened because the plank was not made secure by nailing or otherwise, while plaintiff- was properly walking thereon, in and about his work, and that the plaintiff was injured while using ordinary care for his own safety, then your verdict should be for the plaintiff in such damages as under the instructions given, in the case you believe would compensate him for the injury sustained.\\\" Plaintiff had judgment. The defendant appeals.\\nIt is urged by defendant that the court en-ed in giving instruction No. 1. The only reason given in support of the alleged error is that the evidence without conflict shows that \\\"the board from which the plaintiff fell was not a place furnished by the defendant upon which plaintiff was to do his work;\\\" that is to say, it is claimed the loose plank was not in the pathway, and was no part of the walk, and when the plaintiff stepped on the plank he was entirely outside of and away from the walk provided by the defendant. And the further contention is made that the defendant was not responsible for the unfastened condition of the plank. We must hold against the defendant on these contentions. If the testimony of the plaintiff is to be believed, the loose plank was in the pathway and a part of the walk provided and maintained by the defendant for the purpose of which the plaintiff was using it. The evidence is also' sufficient to warrant a finding that the plank was not fastened when laid, or that the defendant in the exercise of ordinary care could have discovered the unfastened condition prior to the accident and ought to have fastened it. The instruction was therefore ap plicable to plaintiff's theory of the case. No error was committed in giving it.\\nIt is further urged that the jury disregarded' instruction No. 5. It is claimed the evidence, without conflict, shows that the defendant had provided a reasonably safe walk or platform, but instead of using it, the plaintiff chose a dangerous way of passing from place to place by- moving along the timbers of the building. This is but presenting the same .question in another form. If the plaintiff did what is assumed by the defendant, the verdict is not only contrary to the charge, but also to the evidence. If, however, the testimony of the plaintiff and his witness is true, he was using the walk; the loose plank was a part of it, and rendered the walk not reasonably safe; and plaintiff's injury resulted by reason of such condition, while he was in the performance of his duties. The claim made, upon which it is assumed there is no conflict; is not sustained by the record.\\nThe judgment of the court below is- therefore affirmed with costs.\\nMcCARTY, C. J., and FRICK, J., concur.\"}"
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+"{\"id\": \"8873237\", \"name\": \"PROGRESS CO. v. SALT LAKE CITY et al.\", \"name_abbreviation\": \"Progress Co. v. Salt Lake City\", \"decision_date\": \"1918-06-06\", \"docket_number\": \"No. 2851\", \"first_page\": \"556\", \"last_page\": \"579\", \"citations\": \"53 Utah 556\", \"volume\": \"53\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:31:42.639605+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCARTT, CORFMAN, and GIDEON, JJ., and EVANS, District Judge, concur. THURMAN, J., being disqualified, did not participate.\", \"parties\": \"PROGRESS CO. v. SALT LAKE CITY et al.\", \"head_matter\": \"PROGRESS CO. v. SALT LAKE CITY et al.\\nNo. 2851.\\nDecided June 6, 1918.\\nRehearing Denied July 5, 1918.\\n(173 Pac., 705.)\\n1. Waters and Water Courses \\u2014 Appropriation op ' Waters \\u2014 Surrender of Right. Where plaintiff had appropriated the waters of a creek for power purposes, and subsequently defendants had used such water for irrigation and domestic purposes, without protest, for 26 years, under an arbitration agreement, plaintiff\\u2019s right to the use of the water was surrendered and lost. (Page 568.)\\n2. Waters and Water Courses \\u2014 Apportionment of Water Rights\\u2014 Evidence. In a suit by a power company to enjoin a city and others from appropriating water, evidence held not to show that an apportionment of water to it during the nonirrigation season was erroneous. (Page 571.)\\n3. Waters and Water Courses \\u2014 Apportionment of Water Rights\\u2014 Evidence \\u2014 Waste. In a suit by a power company to enjoin appropriation of water by a city and others, evidence held not to show that the court erred in apportioning water during the nonirrigation season for domestic purposes. (Page 575.)\\n4. Appeal and Error \\u2014 Right to Allege Error \\u2014 Apportionment of Water Rights. In a suit by a power company to enjoin appropriation of water from a stream by a city and others, plaintiff could not complain that an apportionment of water was erroneous as including that which flowed from certain springs, where such water was seepage from water already appropriated and to which plaintiff had no right. (Page 576.)\\n5. Appeal and Error \\u2014 Reservation of Grounds \\u2014 Waiver. Whore no objection is made below that all parties in interest are not made parties to the action, objection is waived. (Page 578.)\\n6. Judgment \\u2014 Persons Not Party. A litigant may always suggest to the court that it is powerless to adjudicate the rights of such parties as are not before it, and the court may, on its own motion, refuse to adjudicate their rights. (Page 578.)\\nAppeal from the District Court of Salt Lake County, Third District; Hon. G. W. Morse, Judge.\\nSuit by the Progress Company against Salt Lake City and others to quiet title in water rights.\\nFrom the decree plaintiff appeals.\\nAFFIRMED.\\nVan Cott, Allison & Riter and Joseph R. Haas for appellant.\\nF.'S. Richards, Ogden Hiles, Barnard J. Stewart, Allen T. Sanford and C. F. Marks for respondents.\", \"word_count\": \"8717\", \"char_count\": \"50850\", \"text\": \"FRICK, C. J.\\nThis case was argued and submitted at a former term of this court. Tbe court as then constituted, however, did not arrive at a decision in the ease, and it went over for reargument to the court as now constituted. Mr. Justice THURMAN was, however, disqualified to sit in the case by reason of haying been of counsel for some of the parties to the action, and for that reason Hon. P. C. EVANS, District Judge, was called in to sit with the other four members of the court. The case was again argued and submitted during the 1917 October term.\\nThe plaintiff, a corporation, commenced this action in the district court of Salt Lake' County in February, 1907, to quiet title to a certain quantity of the waters of Big Cottonwood creek. Big Cottonwood creek is a stream of considerable importance having its source in the Wasatch Mountains to the east of Salt Lake Valley, flowing in a westerly direction a distance of approximately twenty-five miles, and finally emptying into the Jordan river, which empties into the Great Salt Lake. The waters of Big Cottonwood creek except in times of floods, have for many years all been appropriated and used for power, irrigation, and domestic purposes by the inhabitants of Salt Lake Valley. The plaintiff made all those who claim some rights to the waters of Big Cottonwood creek parties to the action. A large number of corporations and individuals, approximately 400 in all, were thus made defendants to the action. There were 115 separate answers filed to the complaint, and in some instances a considerable number of defendants joined in the same answer. Many of the answers in addition to matters of defense, also contained counterclaims in which the respective claimants set forth their rights in and to portions of the waters of Big Cottonwood creek and asked that their titles be quieted. Salt Lake City, however, is the principal defendant, and in its answer it sets forth various defenses. In one of these defenses it set forth facts in the nature' of an estoppel and also pleaded title to a portion of the waters claimed by plaintiff, by adverse user, prior appropriation, and by purchase. In order to supply its inhabitants, numbering in excess of 100,000, with potable water, Salt Lake City acquired large interests in the waters of Big Cottonwood creek.\\nA trial upon the issues presented by the several pleadings commenced on the 30th day of September, 1907, and the taking of testimony continued during the fall and winter months of -that year and until the spring of 1908. The case was submitted on the 18th day of April, 1908, and on the 6th day of June following the court rendered its decision upon all questions relating to the rights of the several claimants to divert and use the waters of Big Cottonwood creek during the irrigation season, that is, from. April 1st to October 1st of each year; but in rendering that decision the court expressly reserved all questions relating to the right to divert and use the waters of said creek during the nonirrigation season, to wit, from October 1st of one year to April 1st of the following year, and requested the several claimants to produce further evidence upon the latter question. Additional evidence was produced upon that question, most of which, however, was limited to the use of the water from Big Cottonwood creek after the action was commenced. The case, however, was finally submitted upon that question, and on the 24th day of December, 1913, the court filed its findings of fact and conclusions of law and entered a final decree in the action. The court, on most of the features, found in favor of Salt Lake City, and while modifying, and in some instances disallowing, the claims of many of the counterclaimants, the court nevertheless, to a large extent, found in their favor, and the plaintiff alone appeals from the decree.\\nWhile all the parties to the action were also made parties to this appeal, and while the plaintiff claims that the district court erred in its findings in favor of some of the water users, yet the main controversy is between the plaintiff, on the one hand, and Salt Lake City, upon the other. The principal controversy between those parties is due to the fact that Salt Lake City, in exchanging water which it takes from Utah Lake for water taken by the original appropriators from Big Cottonwood creek, plaintiff contends that its rights to the use of water from Big Cottonwood creek have been and are being interfered with. Agreements for the exchange of water were entered into between Salt Lake City and the following companies and individual owners of Big Cottonwood water, namely: Big Ditch Irrigation Company, hereinafter called Big Ditch, Big Cottonwood Lower Canal Company, hereinafter designated Lower Canal, and the owners of the waters which were diverted by what is known as the Hill Ditch, hereinafter styled Hill Ditch. The exchange contracts aforesaid were before this court in the case of State v. Salt Lake City, 29 Utah, 361, 81 Pac. 273, where the legality thereof was affirmed. The exchange of water between1 Salt Lake City and the ditch owners aforesaid was made for the purpose of giving the inhabitants of Salt Lake City potable water from Big Cottonwood creek for nonpotable but suitable, water for irrigation purposes which was taken by Salt Lake City from Utah Lake by means of a canal owned by it. That canal, its capacity and purposes are fully explained in the case of Salt Lake City v. Irrigation Co., 40 Utah, 126, 121 Pac. 592, to which ease reference is made for a more complete statement. That canal crosses Big Cottonwood creek some miles above the point where plaintiff diverts its water from said creek; plaintiff's point of delivery being the lowest one on the stream. Salt Lake City contracted to, and does, deliver to the several ditches aforesaid water from said canal for an equal amount of water which by said ditches was being diverted from Big Cottonwood creek and used for irrigation purposes. In other words, instead of taking the water from Big Cottonwood creek, the water users along said ditches take the water diverted to them from the Salt Lake City canal, which water tbence flows down said ditches and their laterals, and is diverted on to the lands of those who own the water. Upon the other hand, Salt Lake City takes the quantity of water that formerly flowed into those ditches from Big Cottonwood creek and distributes the same to its inhabitants. Salt Lake City, in order to use the Avater so exchanged, has, at a great cost,, constructed a concrete conduit further up Big Cottonwood creek by means of which the water is conducted to Salt Lake City for distribution. The conduit was placed higher up the stream for the purpose of giving those who have homes in said city in elevated positions an opportunity to obtain water by means of gravity. While the contracts of exchange were all entered into and executed in June, 1905, yet, in vieAV that Salt Lake City was required to construct said conduit, the exchange water was not actually turned into the conduit until early in the year 1907. Immediately after the water was turned into said conduit this action was commenced.\\nOne of the principal questions presented, for decision arises as follows: Plaintiff claims that its predecessors in interest appropriated a certain quantity of water from Big Cottonwood creek for power purposes at a date anterior to the date that an appropriation was actually made by one of the ditches with which the city affected an exchange and that therefore plaintiff's rights are prior and paramount, and that in diverting and using the water from said- ditch Salt Lake City is interfering Avith plaintiff's rights. While, as we have seen, Salt Lake City contracted with the lower canal, yet the real controversy arises with what is called the upper canal, for the reason that the lower canal has succeeded to the rights of the upper canal to the extent at least that the Avater involved in this controversy is concerned. The allegations concerning plaintiff's appropriation are quite general. They are as follows:\\n\\\"That heretofore, in about the year 1856, the said plaintiff, and its predecessors in interest, appropriated 150 second feet of water from said Big Cottomvood creek,\\\" etc.\\nThe evidence upon the subject is equally general. Mr. Henry W. Brown, sixty-eight years of age at the time of the trial, in testifying to the time when the first efforts were made by one Gordon to appropriate water from Big Cottonwood creek for power purposes, that is, for power to propel and operate a grist mill, said:\\n\\\"The survey part of the Gordon race (millrace) had been done in the early winter of '55 and '56. Construction was commenced in the fall of '56. It was completed in the winter of '56 and '57. The Gardner mill (the mill in' question) commenced grinding in the winter of '57 and '58. ' '\\nThe witness also testified that after the diverting dam was put in the millrace \\\"took all the water that came down Big Cottonwood creek to that point, that low down. ' ' One of the principal questions in controversy is how much water in fact \\\"came down Big Cottonwood creek to that point\\\" \\u2014 that is, to the intake or head of the millrace. Upon that question the testimony covers volumes. Indeed, the plaintiff, upon that and kindred subjects, produced eighty-two witnesses while the defendant city produced eighty-five. In addition to those there were many other witnesses. Each witness was cross-examined by at least three attorneys, and some were cross-examined by eight or ten. The oral evidence was supplemented by a great mass of documentary evidence, and the whole is thus so great in volume that we, except in particular instances, shall merely state our conclusions respecting the effect of the evidence. Counsel for Salt Lake City at the trial contended, and here contend, that the upper canal, to the rights of which the lower canal succeeded, was constructed and the water appropriated and diverted from Big Cottonwood creek before the appropriation was made by plaintiff's predecessors for power purposes as before stated. 'Much evidence both for and against that contention was also produced. With regard to plaintiff's rights the court found:\\n\\\"That in the year A. D. 1856 the predecessors in interest and title of the plaintiff herein, the Progress Company, constructed a millrace, known as the Gordon race, for the purpose of taking water from the' Big Cottonwood creek. ' '\\nThe court then proceeds to make findings regarding the use of the water, and the sources of plaintiff's water supply,- and ends that part of the finding thus:\\n\\\"And during the said irrigation season said plaintiff has hitherto taken and used and does now take and use into and through said Gordon race all of the water of said Big Cottonwood creek flowing in the stream at a point immediately below the upper intake of the Hill Ditch, also all the water flowing in Little Green river, and the same is used for power purposes at said power plant located at or near State street, and also for culinary and domestic purposes. And during the irrigation season plaintiff and its predecessors in title have hitherto used, and plaintiff is entitled to use, for power purposes, and to have its title thereto quieted to all of the waters of said Spring creek, not in these findings and said decree otherwise awarded to other parties, to be used at its power plant known as the Miller plant;.the whole not exceeding 150 cubic feet of water per second of time.\\\"\\nUpon the other hand, the court found that the upper canal was constructed in 1856. The precise question of which one, the millrace or the canal, was prior in time, the court apparently did not determine. Nor is that question, for the reasons we shall hereinafter discuss, of controlling influence here. We cannot go into the facts and circumstances upon that question in detail. Should we do so, it would require us to go far beyond the limits \\u00f3f an ordinary opinion. We shall therefore limit the discussion to a few of the salient features. As before stated, Big Cottonwood creek is a very important stream to the inhabitants of Salt Lake Valley. Soon after the pioneers came to this valley, to wit, in 1847, they appropriated the waters of said stream and applied them to beneficial purposes. To that end they constructed a number of ditches by means of which they diverted the waters of said creek, and used the same to irrigate their lands, and also used it for other beneficial purposes. Up to and including the year 1856 there were thus constructed the following ditches and canals which diverted the water from the north' side of Big Cottonwood creek, to wit: Big Ditch, 1848; Walker Ditch, 1849; Hill Ditch, 1851; Farr & Harper Ditch, 1852; Newman Ditch, 1854; and Upper Canal, 1856. There were also ditches taken out to the south as follows: Tanner Ditch (three branches), 1848; Green Ditcb (two branches), 1848. In addition to the foregoing ditches others were constructed as follows : Lower Canal, 1866; Brown & Sanford Ditch, 1869; Lower Ellison Ditch, 1872; Butler Ditch, 1872; Bagley & Knudsen Ditch, 1876; Knudsen Ditch, 1883; McGhie Ditch, 1884; Upper Ellison Ditch, 1884; Harper & Taylor Ditch, 1885; Severson Ditch, 1887; Bagley Ditch, 1894. It will hereinafter appear, however, that the water that was taken by all of the ditches that were constructed after 1876 amounted to but little, and in the low and what is termed normal flow of the creek none was taken by those ditches. The court found and decreed that the ditches hereinafter named were entitled to water as follows: When the water flowing in Big Cottonwood creek at or above the headgate of intake of the Hill Ditch, which is the lowest irrigating ditch down the creek and approximately a mile and a quarter above the headgate or intake of plaintiff's race, is reduced to a certain quantity, that is, to fifty second feet or less, the whole quantity,' when reduced to sixtieths, should be divided among the several ditches between October 1st of one year and April 1st of the following year, which is termed the nonirrigation season, in the following proportions:\\nSixtieths\\nButler Ditch.67\\nBrown & Sanford. 6.25\\nUpper Canal. 9.63\\nThomas S. Newton.04\\nTanner Ditch . 11.40\\nGreen Ditch . 7.30\\n'Walker Ditch .'. 1.20\\nFarr & Harper.43\\nKnudsen & Bagley .;.03\\nBig Ditch . 15.75\\nHill Ditch. 1.96\\nLower Canal. 5.34\\nFurther, that during the irrigation season, that is, between April 1st and October 1st of each year, when the water flow ing in Big Cottonwood creek at or above the headgate of the ITill Ditch does not exceed 120 second feet, the whole thereof shall be distributed, when reduced to sixtieths, among the ditches as follows:\\nSixtieths\\nButler . 50\\nBrown & Sanford. 3.60\\nUpper Canal . 10.50\\nUpper Ellison.70\\nNewman.30\\nTanner . 13.21\\nGreen . 5.30\\nWalker.32\\nFarr & Harper.50\\nLower Canal.;. 5.80\\nBig Ditch .'. 17.10\\nHill. 2.13\\nBagley & Knudsen.04\\nCounsel for plaintiff very earnestly contend that the court erred in making the foregoing apportionments, and that in doing so invaded plaintiff's rights. Prima facie there seems to be merit to the contention. When we keep in mind, however, the defenses- that were interposed by Salt Lake City, and give force and effect to the preponderating evidence, what seems to be a meritorious claim entirely disappears. Very briefly stated, the findings and decree are based upon substantially the following facts and circumstances: Prior to 1879 much difficulty arose respecting the equitable distribution of water among the several ditches during the low-water season and when the creek did not exceed what is known as the normal flow. While it was conceded at the trial that low water in the creek means a flow of fifty second feet, yet the evidence is conclusive that in many years the flow of the creek was reduced to considerably less than that amount. Indeed, there is evidence in the record that the flow at times was as low as fifteen second feet. The flow, however, varies greatly in each year, and in some years is much greater than in others, depending upon the amount of precipitation, the time of tbe year it falls, the temperature of the season, and many other factors. The evidence is undisputed that the flow of the creek has risen to 777 second feet, and that in some years a comparatively large flow has continued far into what is known as the low-water season. Owing to these and other conditions, therefore, there was at times much strife among the ditches regarding their prior rights and the diversion of water. To obviate, or at least to minimize, that difficulty, what is called an arbitration meeting was held in the year 1879, in which a large majority of the water users of the several ditches then existing participated. That meeting established what is termed a schedule; that is, the flow of the stream when it has been reduced as stated in the findings to which we have referred was reduced to sixtieths, and apportioned among the several ditches in substantially the amounts found and decreed by the court. It may be said here parenthetically that the schedule, as established in 1879, was subsequently modified in minor details, but not so as to materially affect plaintiff's rights in any event. While, as before stated, not all of those interested joined in said meeting, yet the evidence is thoroughly convincing that subsequently they all acquiesced in the schedule adopted by said meeting according to which the waters of Big Cottonwood creek above the intake of the Hill Ditch was apportioned and distributed from the year 1880 until the decree was entered, and it is equally clear that all acquiesced in the minor modifications we have stated above. While there is some conflict in the evidence upon that subject, yet, when the conditions and the various changes in the flow of the creek are kept in mind, the conflict is not serious. While the plaintiff's predecessors were not parties to the arbitration agreement, yet, as just stated, the waters of Big Cottonwood creek flowing above the point before stated were for approximately twenty-six years apportioned and divided according to the schedule adopted in 1879, and the evidence leaves no room for doubt that during that whole period neither the plaintiff nor any of its predecessors in interest ever made any protest or objection to that method of distribution or to the quantities that were apportioned to the several ditches. Indeed, the evidence is both strong and convincing that even before 1879, when the flow in Big Cottonwood creek had been reduced to a certain quantity, none was permitted to flow below the headgate of the Hill ditch. The preponderance of the evidence is to the effect that a tight dam was maintained not only at the head of the Hill Ditch, but also at the headgate of the Big Ditch and no water was permitted to flow below the Big Ditch after the flow was reduced to a certain quantity, unless upon rare occasions, when in extraordinary dry seasons the underflow below the Big Ditch failed to supply the Hill Ditch with the amount of water to which it was entitled. \\\"We cannot pause to state the evidence upon that point. It must suffice to say that it came from those who were in a position to' know the facts, and in many instances from those whose official duty it was to measure and apportion the waters among the several ditches. Witness after witness testified that for more than thirty years no water was permitted to flow past the Hill Ditch when the wat\\u00e9r had reached the low stage found by the court. Every water master and commissioner appointed under the-statute who was called as a witness testified that neither the plaintiff nor any of its officers or agents, nor any of its predecessors in interest, had ever made a demand upon any one to permit the water to flow past the Hill Ditch, nor made any objection to the diversion and apportionment of the water as made. James Gordon, fifty-eight years of age at the time of the trial, a son of the Gordon who constructed the millrace, and under whom plaintiff claims, testified:\\n\\\"While I was water master, or at any other time, I never heard any one demand that water should flow down past the Hill Ditch dam to the Gordon race, or any other user below until the Progress Company (the plaintiff) made their claims. I never heard my father make such a claim, nor James Gordon or Mr. Cahoon. # I can say they did not make such a claim to me while I was water master. # I first heard a year ago last fall that the Progress Company made a claim to have water go down past the Hill Ditch.\\\"\\nPractically the same statements, only in some instances more elaborate and stronger, are made by twenty or twenty-five other witnesses who were in a position to know; the facts, and many of whom were not interested in the litigation either directly or indirectly. But there are other circumstances which in one sense are somewhat negative in character, but which, nevertheless, are of much probative force. For instance, Mr. Brown, one of the plaintiff's most important witnesses, merely testified that plaintiff's predecessor \\\"took all. the water that came down Big Cottonwood creek to that point\\\" \\u2014 that is, down to the intake of plaintiff's race. How much that was is not disclosed. It is quite probable that some Big Cottonwood creek water reached the headgate of plaintiff's race. The evidence is- undisputed that Big Cottonwood creek, like most of our .mountain streams, has a subsurface as well as a surface flow which varies at different parts of the stream. Upon that question the evidence shows that at one point in the creek the flow of water was reduced 24.9 per cent, in a short distance, which point was above the Big Bitch. As before stated, the evidence is convincing that a tight dam was for a long term of years also maintained at the head of the Big Ditch, which is the first ditch up the stream from the Hill Ditch, and that the latter ditch, except in exceptionally dry years, was always fully supplied by the underflow in the creek. There was an underflow, therefore, some of which at least came to the surface before the water, reached the Hill Ditch. From that fact alone a strong inference arises that some more of the underflow came to the surface between the Hill Ditch and the intake of plaintiff's race; those two being considerably farther apart than the Hill Ditch and the Big Ditch. That fact, at least in part, also accounts for the statements of some of plaintiff's witnesses that during the low-water season of the year they saw water flowing in Big Cottonwood creek below the Hill Ditch. Plaintiff, however, contends that the capacity of the millraee was 150 second feet, and for that reason it seems to contend that it was entitled to 350 second feet. The combined capacities, however, of the ditches that were in fact first constructed, and through which water was diverted from Big Cottonwood creek for irrigation and domestic purposes, excluding tbe upper canal, the priority of which is questioned by plaintiff, was 158 second feet, and, if the upper canal is included, as in our judgment it should be, the combined capacities of the ditches having priority over plaintiff's millrace was 218 second feet. The capacities of the ditches which are conceded to have been prior in time, and also prior in right, thus far exceeded both the low-water and the normal flow of Big Cottonwood creek. But it is a well-known fact that merely to prove the capacity of a ditch does not establish prior rights to water in all stages of the stream. Under all the facts and circumstances, therefore, the plaintiff never obtained, nor now has, what is termed a primary right in the waters of Big Cottonwood creek.\\nIf, however, plaintiff or its predecessors in interest at any time had such a right, it was surrendered and lost by the long-continued and uninterrupted acquiescence in the distribution of the water as agreed upon by the arbitration agreement of 1879, which was thereafter maintained, except in unimportant details, for more than twenty-six years before this action was commenced. As already stated, the only evidence of the quantity of water that was in fact appropriated by plaintiff's predecessors in interest is the capacity of its millrace. No measurements were made, so far as the evidence discloses, until in 1907, which was a very high-water year. Some of the witnesses testified that in the latter year the water was higher than it had been in any year since 1862. On July 8, 1907, during the high-water year, a measurement, however, was made for plaintiff by which the flow in the race was shown to be 138.6 second feet. A measurement was, however, also made in the preceding September by a hydraulic engineer for Salt Lake City, which measurement disclosed a flow of only 38.83 second feet, and that witness testified that that was nearly, if not quite, the capacity of plaintiff's race. We think, however, that the preponderance of the evidence shows that the race had a much larger capacity. The capacity of the mill-race is, however, not controlling, not even of great importance, in view of the actual conditions disclosed by all of tlie evidence. No one seems to have known, at least no one testified respecting, the quantity of water that plaintiff's predecessors used to operate the gristmill. That mill was, however, not operated after 1881. After that year a certain smelter at Murray leased the use of the water flowing through the millrace and used it until 1899. How much was used is not disclosed. It was not until after that, along in 1905, that the plaintiff commenced the use of the water again by installing a plant for the purpose of generating electric power, 'and in addition thereto it used approximately 1.5 second feet to supply Murray City with water for domestic use. The quantity that the water wheel that was installed by the plaintiff required is in dispute. The evidence on behalf of the plaintiff was to the effect that it required eighty or ninety second feet, while hydraulic engineers who were witnesses for the city testified that the capacity of the wheel installed' by the plaintiff did not exceed fifty second feet. In this connection plaintiff's counsel vigorously contend that the evidence is strong and persuasive that the plaintiff had appropriated and had always used a quantity of water in the low-water or nonirrigation seasons in excess of the quantity awarded to it by the district court, and that the findings and decree in that regard are erroneous. Counsel quote and rely on the following evidence: Samuel Brin-ton, a witness for plaintiff, testified that plaintiff's millrace \\\"has always run full of water.\\\" C. P. Cahoon testified the race \\\"was full of water winter and summer.\\\" James Gordon, in referring to the race, said, \\\"It has been substantially full of water all of the time.\\\" John P. Cahoon testified:\\n\\\"I think the Gordon race is about the same size now as it always has been. In the summer time the race has been filled up full as it can carry ever since I have known it. I think it is less in the winter time, probably three-fourths full.\\\"\\nCounsel conclude the evidence with the following statement:\\n\\\"A great many witnesses testified as to the race being full of water all of the time,\\\" that is, winter and summer.\\nPlaintiff's witnesses also denied that a \\\"tight\\\" dam was maintained at the intake of the Big Ditch, as claimed hy Salt Lake City. The witnesses for plaintiff insisted that they saw water running in Big Cottonwood creek below the intake in that ditch at various times. It is a matter worthy of special remark, however, that none of those witnesses attempted to give the quantity of water that flowed in the creek below the intake of the Big Ditch at any time. Nor is it possible to tell from the evidence whether the water they saw was the subsurface flow of the stream or whether it was water that came to the surface below the Hill Ditch. Nor is there any testimony upon which the court could base a finding respecting the quantity of water that was used for the old mill by plaintiff's predecessors in interest. All that is left in doubt, and the only evidence upon which the court could have based such a finding is uncertain and inconclusive in respect to the quantity of water so used. It is quite clear, therefore, why the district court was unable to find the fact in accordance with the claims of plaintiff's witnesses. One of those reasons is that it was conceded at the last hearing in this court that the plaintiff makes no claim for additional water except during the low-water or nonirrigation season, that is, from October 1st of one year to April 1st of the succeeding year. It was also conceded at the argument \\u2014 indeed, such is the- agreement of all the parties to this action \\u2014 that the entire flow of Big Cottonwood creek during that period is not in excess of fifty second feet, and, as before stated, the evidence is to the effect that the flow in certain seasons is less -than that amount, at least during a portion of the season. That fact is therefore not only undisputed, but, in the face of the whole record, is undisputable. As indicated, the plaintiff claims that it has appropriated 150 second feet of water, and that that is substantially the capacity of its race or canal. It therefore insists that, in view of the testimony of the foregoing witnesses that the canal was running full at all seasons of the year, for that reason the court er.red in not awarding it more water during the nonirrigation season. A moment's reflection will show, however, that the district court could not have made a finding in accordance with the statements of plaintiff's witnesses without having wholly disre garded the solemn admissions of all the parties to this aetio'n that the entire flow of Big Cottonwood creek during the non-irrigation season, which is the only time plaintiff complains- of a shortage of water, was at no time in excess of one-third of the claimed capacity of its race and of the amount claimed by it. If, therefore the entire flow of Big Cottonwood creek during the nonirrigation season only amounted to fifty second feet or less, how was it possible plaintiff's millrace, with a capacity of 150 second feet could run full unless the water was obtained from some other source?\\nAs before stated, the evidence is clear and convincing that no surface flow was permitted to pass below the Big Ditch during the nonirrigation season. If, therefore, water flowed in the creek below that point, it was a subsurface flow, and not a surface flow. That such was the actual fact is made quite apparent from a consideration of all of the evidence, and the district court' was fully justified in arriving at such a conclusion. The contention, therefore, that the district court erred in not awarding plaintiff more water, and that under the evidence it should have awarded it one-fourth of the flow of Big Cottonwood creek during the nonirrigation season, is clearly not tenable.\\nIt may be observed that the mere fact that plaintiff now only claims one-fourth of the flow during the low-water season, which would not exceed twelve and one-half second feet, or, in case the flow in the stream was less than fifty feet, would be less than that amount, alone shows that, if its millrace was running full at all seasons of the year as claimed by the witnesses, only a very small quantity of- that water came from the surface flow of Big Cottonwood creek. The district court was therefore justified in finding that none of the water from Big Cottonwood creek except the subsurface flow, all of which plaintiff still receives, ever reached down to plaintiff's millrace. The question may, however, still be asked: Where did plaintiff obtain its water to operate its plant? As the court found, plaintiff constantly had at least two other sources of supply, namely, Little Green river and Spring creek. In addition thereto it also had the underflow from Big Cottonwood creek, as hereinbefore explained. Both Little Green river and Spring creek empty into' Big Cottonwood creek above the headgate of plaintiff's millraee. It is quite probable, therefore, that plaintiff was in fact supplied from those three sources. That such was the fact may also be inferred from the fact that during all the years from 1879, and even prior thereto, until 1906, none of plaintiff's predecessors in interest made any complaint whatever. Again the evidence shows that at least two of plaintiff's original sources of supply largely increased their flow of water after the lands lying east and above plaintiff's race were being thoroughly irrigated. Upon that subject Mr. J. P. Cahoon, manager and treasurer of the plaintiff, testified:\\n\\\"I think Spring creek has been increased in size at least ten times; I think probably more than that since early years. I think Green river has increased maybe six or eight times the amount of water there was that flowed there in early years.\\\"\\nThere is also much testimony by others- to the same effect. True, the combined flow of Little Green river and Spring creek is less than plaintiff insists it is entitled to, but when the underflow from Big Cottonwood creek is considered in connection with the other two sources of supply, the court was justified in finding that the plaintiff obtained all the water to which it was entitled. It is also true that there is less water in Little Green river and Spring creek in the non-irrigation season than there is during the irrigation season. No doubt, like all other water users along one of our mountain streams, plaintiff's .wants were not always supplied. This the manager conceded in his testimony. He said:\\n\\\"We hardly ever have enough between October 1st and April 1st, that is, during the low-water season.\\\"\\nThere, however, still is another circumstance which shows that the plaintiff at no time had or used a specific quantity of water from Big Cottonwood creek. On the 9th day of August, 1904, the city obtained an option to purchase the water from the individual owners thereof through whom plaintiff now claims. Plaintiff's manager, it seems, was not only interested in the negotiations, but he was the principal actor for the water claimants. Both in the lease written by Mr. Cahoon, the manager, and in the option itself, mention of any particular quantity of water is apparently studiously avoided. All the sources of supply upon which plaintiff now relies were mentioned, but no specific quantity was named. The fact that no specific quantity was mentioned seems quite significant.\\nIt is, however, further insisted that immediately after Salt Lake City turned the water it obtained from the several ditches as before explained into its conduit plaintiff's supply failed. In view of all the evidence, it seems the district court was not greatly impressed with that claim. Neither does it, in view of the whole record, impress us with compelling force. It is conceded by plaintiff's counsel that none of the water that is diverted to the north of Big Cottonwood creek ever finds its way back into that creek or can in any way augment or affect plaintiff's supply. It is likewise not disputed that Salt Lake City has turned as much water into the ditches as it took from the stream. Indeed, the water commissioner who is appointed under the statute to make the apportionments testified that he did not turn quite as much water into the conduit as Salt Lake City was entitled to under the exchange agreements. It is hard to conceive, therefore, how the mere fact of substituting canal water for Big Cottonwood creek water in those ditches, which in no way could affect the flow in Big Cottonwood creek after the diversion took place, can affect plaintiff's supply. If no exchange had been made, the same quantity of water, and, according to the statements of the water commissioner, a little more, would have been diverted from Big Cottonwood creek by the three ditches with which the exchange was made as was diverted into the Salt Lake City conduit by the commissioner. The only difference, therefore, was that, instead of permitting the quantity of water diverted by the three ditches to flow down the creek to the headgates of those ditches, it was diverted farther up the stream, but the quantity diverted was, if anything, less than would have been diverted by the ditches themselves. If there was any loss, therefore, by seepage between the point of the intake of the conduit and the headgates of the ditches, that loss was borne by Salt Lake City, since it only diverted the quantity (or a little less) that would have reached the headgates of the three ditches. If, in addition to all the facts before referred to, it is kept in mind that the agents and attorneys of Salt Lake City have been thoroughly conversant with all the different ditches through which water had for many years been and was being diverted from Big Cottonwood creek, with the quantity diverted and the manner and basis upon which the waters of Big Cottonwood creek were apportioned and distributed among all the claimants, and that no claim was made by plaintiff, or any one in its behalf, and that, relying upon those facts, the authorities of said city before the bringing of .this action had expended upwards of a half million dollars in paying the three ditches a bonus for the Big Cottonwood water and in constructing the conduit and for other purposes, then it becomes reasonably clear why the district court, acting as a court of equity, arrived at the Conclusion that whatever rights plaintiff's predecessors in interest at one time may have had they, by their acquiescence and conduct covering a period of more than twenty-five years, had abandoned and lost, and that the plaintiff cannot now overthrow all that had been determined and acted upon by all those who had and continued to have an interest in the waters of Big Cottonwood creek'. To permit the plaintiff now to insist upon its alleged prior right would not only be inequitable, but would work a great injustice, not only upon Salt Lake City, but upon all those who have acquiesced in and acted upon the apportionment and distribution of the waters of Big Cottonwood creek under the arbitration agreement of 1879. We remark that, if an owner of real estate, for a much shorter period, had acquiesced in and had permitted the open, notorious, and adverse use of his property by others, however valuable it might be, no court would hesitate to find against him, although the equities on the part of the claimants in that case would be much less than are the equities of the water users in this case.\\nPlaintiff's counsel, however, insist with much vigor that the court erred in allowing the quantity of water fixed by the decree to flow down the several ditches named in the decree during the nonirrigation season, and that the quantity awarded by the court to those ditches constitutes a waste. I confess that at first blush I was much impressed with counsel's contention. After a careful reading of the whole record, however, and upon a more careful reflection, I must also confess that my first impressions have been entirely dissipated. Plaintiff's counsel have gone to great pains in preparing tables showing the quantity of water that is allowed each family living on the several ditches. They have also shown that some families have cisterns, and therefore do not require water from the ditches. While from those tables it is apparent that the court made liberal allowances, yet if we keep in mind the length of the several ditches and the large number of laterals through which the water must flow, it is at once apparent that 'the conclusions which are deduced from those tables are not only'inconclusive, but might become deceptive and misleading. The evidence is overwhelming that the water has flowed in those ditches and laterals for domestic and culinary use for more than twenty-five years; that the quantity awarded by the court to those ditches and laterals is necessary in order to supply those who live at the greatest distance from the main stream. True, plaintiff's counsel contend that a large number of those living along the stream have cisterns, and hence the amount they would use should be deducted from the amount that is permitted to flow into the several ditches. That fact is, however, not conclusive. Assuming that there are one hundred families living along a certain ditch, including its laterals, forty of whom have cisterns, the other sixty still require the flow of the entire water in order to have water reach the extreme ends of some of the laterals. It follows, therefore, that unless sufficient water is permitted to flow into the main ditches to supply all of the laterals and to supply all the users who may live on those laterals, those who live at the lower ends or at the greatest distance from the main stream might be de prived of the use of water during the very season when they need it for domestic purposes. When, therefore, all the facts and circumstances are considered, the district court awarded no more water to the water users living along those ditches and the laterals than the evidence shows was reasonably necessary for those people, and no more than they had been using for more than twenty-five years continuously from those same ditches and laterals. The' district court therefore withheld nothing from the plaintiff that had not been withheld from it for more than twenty-five years before. In view of the whole record, we cannot say and ought not to say that the district court erred in the allowance of water for domestic purposes during the nonirrigation season.\\nNor is the court's finding that the'plaintiff is entitled to 150 second feet of water flowing in Big Cottonwood creek below a certain point in that stream at all inconsistent. Indeed, it is quite consistent. There are at times more than 150 second feet of water flowing in Big Cottonwood creek as far down as the plaintiff's race and beyond that point. Whenever that condition arises no one disputes the plaintiff's right to its full 150 second feet. Whenever that amount does not flow down the creek to plaintiff's race the plaintiff, nevertheless, is entitled to all that does flow down to that point, but no more, and unless the parties above that point take more than they are entitled to under the decree, plaintiff cannot legally complain.\\nIt is, however, contended that the court erred in not including in its computations the water flowing from certain springs. These springs, so far as we can make out from the record, are ten in number. They are all on the north side of Big Cottonwood creek, some of which are a long distance therefrom, and thus cannot affect plaintiff's water supply unless the court should have added all the water flowing from them to the water apportioned to the ditches, and should have deducted the quantity flowing from the springs, whatever it may be, from the water that those ditches now take from Big Cottonwood creek. A few only of those springs are what are termed natural springs. From those, however, no considerable amount of water flowed, and all of those were claimed by individual owners. .The other so-called springs, it was shown, consisted of mere seepage water which came from the irrigated lands above. Plaintiff could acquire no interest whatever in that seepage water. If that water was ever diverted from Big Cottonwood creek, and doubtless at least some of it was, it was, nevertheless taken from the creek legitimately and was a part of the water that was legally appropriated by some water user under an upper ditch. We cannot see how the court could in any way interfere with the so-called seepage water. If it were conceded, however, that under certain circumstances the court could consider and regulate the water arising through seepage, etc., yet in this case, in view that no water is being wasted, the plaintiff, if it ever had any rights in the water at all, long ago abandoned and lost them for the reasons hereinbefore stated. Moreover, the water from those springs had been put to a beneficial use by those who claimed such water for many years. None of the water from those springs ever reached plaintiff's millrae'e, and therefore never augmented the flow and the source from which plaintiff derives its water. That is conceded by plaintiff's counsel,-but they contend that the spring water, if added to the water that is diverted to the northward from Big Cottonwood creek, to that extent would increase the water that is diverted into the ditches, and that that amount should be deducted from the amount that is permitted to flow into those ditches. The question, however, is pertinent here: Why is not an appropriator of water who puts it to a beneficial use the owner of it regardless of whether it comes from a spring or from a stream? We cannot see how the district court could have awarded the plaintiff the quantity of water from Big Cottonwood creek which it claims comes from those springs without taking something from the owners of those springs and giving it to the plaintiff. To have done so the court would have exceeded its power. Then again it was made to appear that a number of the owners of those springs were not made parties to this action.\\nThe court for that reason, therefore, could not adjudicate their rights. Counsel for plaintiff, however, strenuously insist that that question cannot be considered by us, because it was not raised in the court below. Counsel evidently have in mind the familiar doctrine that, where no objection is made at the proper time and in the proper manner that all the parties in interest are not made parties to the action, none of the parties may object after judgment.\\nWhile that doctrine is elementary, especially under the Codes, yet it does not go to the extent counsel contend for. While it is true that a party may not be heard to complain that proper parties have been omitted and that he may not assail the judgment upon that ground, yet he may always suggest to the court that it is powerless to adjudicate the rights of such parties as are not brought into court. The court may always heed such suggestion, or on its own motion may refuse to adjudicate the rights of those who are not made parties, whenever it appears from the record that there are parties who have such rights. If, therefore, the district court refused to adjudicate the water flowing from the springs in question upon the ground that the alleged owners were not before the court, the refusal did not constitute error. Nor was it necessary in that regard for the district court to give any reasons- or make any findings upon that subject.\\nThere are one or two assignments relating to the admission of evidence. It is not necessary to discuss those, for the reason that, even though they were decided in plaintiff's favor, it would not affect the result.\\nWe desire to add that the case is one where persons, and especially those having an interest, can readily find something in the findings or decree to criticize and suggest changes. When, however, the whole case is viewed in the light of all of the facts and circumstances, it would be very difficult to make or to suggest findings and to formulate a decree which would more nearly reflect justice to all concerned than is the ease with respect to the findings and decree here. In our judgment the findings, conclusions, and decree of the district court cannot be improved upon, and for that reason they are, as they should be, in all respects affirmed.\\nIn conclusion we beg leave to express our appreciation of the thorough manner in which the evidence was abstracted and the briefs and arguments on both sides were presented. Counsel on both sides have greatly aided us in arriving at what, in our judgment, is a just result. While much can be said on both sides, yet, after a careful examination of the whole record, we are thoroughly convinced that the findings and decree of the district court are the result of a most careful and painstaking consideration of the whole case, and are in full accord with the preponderance of the evidence, and that the decree is as fair and just as under all the circumstances a decree could well be framed.\\nThe judgment of the court below is therefore affirmed, at plaintiff's costs.\\nMcCARTT, CORFMAN, and GIDEON, JJ., and EVANS, District Judge, concur. THURMAN, J., being disqualified, did not participate.\"}"
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+"{\"id\": \"8873644\", \"name\": \"G. W. POPP, Appellant, v. THE DAISY GOLD MINING COMPANY, a Corporation, Respondent\", \"name_abbreviation\": \"Popp v. Daisy Gold Mining Co.\", \"decision_date\": \"1903-12-10\", \"docket_number\": \"No. 1428\", \"first_page\": \"83\", \"last_page\": \"86\", \"citations\": \"27 Utah 83\", \"volume\": \"27\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:04:05.665766+00:00\", \"provenance\": \"CAP\", \"judges\": \"BASKIN, C. J., and BARTCH, J., concur.\", \"parties\": \"G. W. POPP, Appellant, v. THE DAISY GOLD MINING COMPANY, a Corporation, Respondent.\", \"head_matter\": \"G. W. POPP, Appellant, v. THE DAISY GOLD MINING COMPANY, a Corporation, Respondent.\\nNo. 1428.\\n(74 Pac. 426.)\\n1. Receivers: Appointment: Time: Appeal: Reversal.\\nWhere the danger of loss no longer exists, or where the fund or property involved has been disposed of under decree or order of court, and the proceeds applied to the payment of claims according to the equities and rights of the holders, and there are no duties for a receiver to perform, a judgment declaring his appointment void and restoring the property to the corporation will not be reversed for technical errors in the rulings of the trial court involving no substantial rights.\\n2. Same: Action Pending.\\nUnder Revised Statutes 1898, section 3114; providing that a receiver may be appointed in a pending action or an action passed to judgment, an appointment before the commencement of the action is void.\\n3. Same: Understanding with Counsel.\\nAn oral understanding between counsel and the judge that an order appointing a receiver, entered prior to the commencement of an action, should not take effect until after its commencement does not validate the appointment.\\n(Decided December 10, 1903.)\\nAppeal from the Third District Court, Tooele County.\\u2014 Hon. Samuel W. Stewart, Judge.\\nAction for the purpose of appointing a receiver. From a judgment in favor of the defendant, the plaintiff appealed.\\nAFFIRMED.\\nC. S. Patterson, Esq., and Geo. W. Moyer, Esq., for appellant.\\nMessrs. Frick & Edwards for respondent.\\nSTATEMENT OE PACTS.\\nOn the eleventh day of May, 1900, plaintiff, who is a stockholder in the Daisy Gold Mining Company, a corporation, commenced an action in the district' court of Tooele county for the sole purpose .of having a receiver appointed to take charge of the property belonging to the defendant corporation, which property consisted of certain mines and a mill for the reduction of ores. An order appointing a receiver was made in chambers by the district judge in Salt Lake county, Utah, on the tenth day of May, 1900, and was made one day before the complaint was filed and the action commenced. At the time there was an oral understanding between the judge making the order and the attorney applying for it that it should not be effective until after the commencement of the action. The case was tried in May, 1901, and the court entered its findings of fact, conclusions of law, and decree on the tenth day of September, 1901. In its decision the court found that the appointment of the receiver was made before any action had been commenced or was pending, and that for that reason the attempted appointment was void; that no cause existed when the action was commenced, or at the time of trial, for the appointment of a receiver; and therefore ordered the property in possession of the receiver returned to the officers and directors of defendant corporation. During the pendency of this action other actions were commenced in the same court, in which decisions were rendered, and in which all of the property of the defendant corporation was sold in pursuance of the order and decree of the court, and the proceeds of the sale applied to the payment of the debts of the Daisy Gold Mining Company. \\u25a0 The proceedings in these actions were reviewed by this court upon different appeals and the judgments and orders of the district court affirmed. 25 Utah 76, 69 Pac. 528, and 69 Pac. 1134. A further appeal in the same cases, in which the receiver appointed was appellant, was taken and the decree of the trial court again affirmed. 26 Utah 373, 73 Pac. 521. Most of the questions presented by this appeal were raised by the receiver on the former appeals, and were decided against him. There are, however, some .questions raised by this appeal which were not raised \\u2014 in' fact could not have been raised \\u2014 in any of the former appeals referred to. These questions refer only to the action of the court in holding the appointment of the receiver void and in refusing to continue him in office.\\nDavis v. Flagstaff Min. Co., 2 Utah 74.\", \"word_count\": \"1285\", \"char_count\": \"7429\", \"text\": \"McCARTY, J.,\\nafter stating the facts, delivered the opinion of the court.\\nBy an examination of the record brought to this court on the former appeals referred to in the foregoing statement of facts (25 Utah 76, 69 Pac. 528, and 69 Pac. 1134; 26 Utah 373, 73 Pac. 521) it will be seen that all of the property and assets of the respondent Daisy Gold Mining Company, which the receiver was appointed to take charge of, have been, under and in pursuance of the decree and orders of the trial court, which decree and orders were affirmed by this court on the appeals referred .to, disposed of, and the proceeds applied to the payment of respondent's debts. The very object of appointing a receiver is to protect the party complaining from loss; and when the danger of loss no longer exists, or when the fund or property involved has been disposed of under the decree and order of the court, and the proceeds applied to the payment of the various claims against it according to the right and equities of the parties holding them, as was done in this case, and there is nothing for a receiver to do, and no duty for him to perform, a case will not fie' reversed, even though the trial court may have technically erred in its rulings, and the' litigation prolonged for the purpose of deciding some disputed point or question of law in the case which decision would in no way affect the substantial rights of the parties-.- - \\u2022\\nThere is another reason why the appellant can not prevail in this case. It appears from the record that the qrder appointing the receiver was made before the action was commenced. This of itself rendered the appointment a nullity. Section 3114, Rev. St. 1898, provides that \\\"a receiver may he appointed iby the court in which an action is pending or has passed \\u2022.to judgment, or by the judge thereof,\\\" and there follows an enumeration of the different kinds of actions in which the appointment may be made, and a specification of circumstances and conditions authorizing such appointment. The fact that there was an oral understanding between counsel and the judge making the appointment that the order should not become effective until after an action was commenced, does not relieve the situation. The statute provides when and under what circumstances a receiver may he appointed, and the power thus conferred can neither he enlarged nor abridged by any understanding or agreement, oral or otherwise, between the plaintiff or his counsel and the judge making the appointment. It necessarily follows that,, if an order appointing a receiver can be made one day before an action is commenced, as was done in this case, it can be made a month, a year, or for an indefinite length of time, which no lawyer, we take it, will seriously contend can be done, however unusual the circumstances upon which the application is based, and however urgent the necessities for the appointment might be. Davis v. Flagstaff Min. Co., 2 Utah 74; Gold Hunter Min. Co. v. Holleman (Idaho), 27 Pac. 413; Smith on Receivers, 39, 602; Beach on Receivers, 70; Merchants' & Mfrs.' Bank v. Kent, 43 Mich. 292, 5 N. W. 627; Jones v. Schall, 45 Mich. 379, 8 N. W. 68; Harwell v. Potts, 80 Ala. 70, 17 Am. and Eng. Ency. Pl. & Pr., 684.\\nWe find no reversible error in the record. The judgment is therefore affirmed. The costs of this appeal to be taxed against appellant.\\nBASKIN, C. J., and BARTCH, J., concur.\"}"
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+"{\"id\": \"8873720\", \"name\": \"PETERSON v. BULLION BECK AND CHAMPION MINING COMPANY\", \"name_abbreviation\": \"Peterson v. Bullion Beck & Champion Mining Co.\", \"decision_date\": \"1912-07-30\", \"docket_number\": \"No. 2269\", \"first_page\": \"364\", \"last_page\": \"368\", \"citations\": \"41 Utah 364\", \"volume\": \"41\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:11:36.585291+00:00\", \"provenance\": \"CAP\", \"judges\": \"FRICK, O. X, and McCARTY, J., concur.\", \"parties\": \"PETERSON v. BULLION BECK AND CHAMPION MINING COMPANY.\", \"head_matter\": \"PETERSON v. BULLION BECK AND CHAMPION MINING COMPANY.\\nNo. 2269.\\nDecided July 30, 1912\\n(126 Pac. 310).\\n1. Trial \\u2014 Directed Verdict. The propriety of directing a verdict for defendant is tested by the question whether all reasonable men would draw the same conclusions from the evidence, and whether that conclusion requires a verdict for defendant. (Page 366.)\\n2. Mines and Minerals \\u2014 Leases\\u2014Interference with Operations \\u2014Jury Questions. In an action by a lessee of a block of mining ground for damages in being prevented from operating under his lease through defendant lessors working the block immediately above, causing the ground to cave and cover up plaintiff\\u2019s ore, whether the caving was caused by defendant\\u2019s act, and whether the working of the upper block was necessarily a nuisance and an interference with plaintiff\\u2019s operations, held, under the evidence, jury questions. (Page 366.)\\nAppeal from District Court, Fifth District; Hon. Joshua Greenwood,. Judge.\\nAction by Lars C. Peterson against the Bullion Beck and Champion Mining, Company.\\nJudgment for defendant. Plaintiff appeals.\\nREVERSED AND REMANDED POR NEW TRIAL.\\nGeo. W. Udoll, Hanson & Garlson and E. A. Walton for appellant.\\nP. T. Farnsworth and Howat <& MacMillan for respondent.\", \"word_count\": \"1551\", \"char_count\": \"8918\", \"text\": \"RITCHIE, District Judge.\\nThis case has been before this court on a former appeal. (33 Utah, 20, 91 Pae. 1095,14 Ann. Cas. 1122.) On the first trial the plaintiff alleged that he leased a block of mining ground from the defendant, and that afterwards the defendant, by working the block of ground immediately above his, caved in the ground, covering up the plaintiffs ore and preventing him from carrying on operations under his lease. The defendant answered, denying any wrongful acts to the injury of the plaintiff, and alleging that the block of ground: above the plaintiffs was in the sole and exclusive possession of one Malvey, as lessee, and that the alleged wrongful caving of the ground was done by Malvey on his own responsibility, without the knowledge of the defendant, or any authority from it or connivance on its part. The second trial was upon an amended complaint in the same language as the original complaint, except that there was added ai paragraph alleging that the block above the plaintiffs ground was in the possession of the defendant when the plaintiffs lease was made, and that the conditions were such that the working of the upper block and any use thereof would necessarily interfere with the plaintiffs ground, and that the injuries sustained were caused \\u2022 necessarily and directly by working1 the ground above. The defendant's answer to this complaint omitted the affirmative allegation with reference to Matvey's possession contained in the first answer and, so far as the pleading was concerned, ignored that issue altogether. It is true that the defendant on the second trial sought to sustain by the evidence the defense that the acts of Malvey, and not of the defendant, caused the caving in of the ground of which the plaintiff complains.\\nThe reversal of the former judgment was on two assignments of error only, the giving of an instruction and the refusal of a request for instruction. The trial court was upheld in three other particulars in giving and refusing requests for instruction. On the second trial the case did not reach that stage. The plaintiff now complains that the court erred in directing a verdict for the defendant.\\nThe only question then is: Would all reasonable men draw the same conclusion from the evidence, and would that conclusion require a verdict for the defendant?\\nThe principal question of fact in controversy was whether the caving in of the block of ground: above the plaintifFs was caused by the act of the defendant, and whether the working of the upper block was nlbessarilv a nui-sauce to the plaintiff, and such that any work therein would necessarily interfere with the plaintiff working his own ground.\\nRobert Martin, a witness, testified, among other things, in substance as follows:\\n\\\"Malvey and these other fellows were cutting, blasting and drilling,. . It caved three or four different times. It dropped off the upper portion of the pillar at the north side of the stope on the south side of the pillar, and it started to spring the posts and the caps, and finally broke them and let them down. At the first cave there was. about fifteen or sixteen tons came down. . A little waste came down every day, kind of drizzled down. There was rocks came down every day.\\\"\\nNephi Griffiths testified:\\n\\\"The cause of this caving of block 9 \\u2014 300 south was the working of the upper block of ground. Peterson did his full duty in keeping a line of timbers in his place. . . . Malvey did not work up in a good miner-like manner. I think that the improper- working of the upper block of ground was the cause of the caving. . . . Malvey didn't timber it at all. I don't think timber would have done any good there. . It would be a hard proposition to hold the ground up. There was so much loose ground1 about. At any time you work out that ground there, you could not get in timber enough to> hold it. . . . It is impossible to work without caving the ground. . I don't think there would have been a cave if Malvey had not taken out that pillar. The working on that pillar and the blasting they don\\u00e9 caused the caving in. Malvey shot out the stalls, and as a result of shooting them out the whole thing came d'own. . . . It looked to me like they were trying to cave it. There is no doubt in my mind of that. . . . The cave would1 have occurred without Malvey working out a spite against Peterson. I know that Malvey wanted to cave in tbe stope so that be could get all tbeir ores without timber-ing. Earls (the superintendent) gave them permission to blast up there and dump that down and fill this stope.\\\"\\n' Lars 0. Peterson, the plaintiff, testified:\\n\\\"It was not possible for a miner to work the ore out of that stope above the 200 level while another was working below the 200 level. He cotdd have done it with less damage if he had been careful. They eould not help but cave this stope down. Earls told Malvey to go up1 and take this pillar out, and he took this out. . . . Told him to take this ore' out and blast it down. That was the ore above the 200 level; it was about eight or nine feet above the level. . . . Malvey blasted on the sides and knocked the whole business down on my timbers. The effect of the mining above me was to cause all the waste to come down on my waste.\\\"\\nOn cross-examination he testified:\\n\\\"A few days after Malvey went in there, he started to shoot down that timber and shoot down that waste on me. Malvey let all that roof down on me. He couldn't help himself. . . . Before that he shot rocks down all the time, and Mr. Earls stood right there and saw. I could have taken all my ore out if Malvey hadn't shot that material down on me.\\\"\\nThomas Griffiths and Nephi Griffiths, miners familiar with the situation, testified to facts substantially the same. Erom these facts it is contended that three different theories may be drawn: (1) That the block above the plaintiff's could have been worked by the tenant thereof without causing damage to the plaintiff, had ordinary care been used; (2) that the working of the block above necessarily caused a nuisance and injury to the plaintiff from the tenant's ordinary use of the premises, working in a careful, workmanlike manner; and (3) that Malvey, the tenant of the block above, maliciously worked his block in the manner he did with the intent to injure the plaintiff's property to make it impossible for the plaintiff to work it, and to drive him out of it.\\nFrom the portions of the avid'ence quoted, it would seem that all of these theories had some evidence tending to support them; and it became a question of the greater credibility of one portion of the evidence as compared with another as to which theory was supported by the evidence, and that it could not be said that all reasonable men would come to the same conclusion, and therefore that it could not be said, as a matter of law, that the defendant was entitled to a verdict. The conclusion seems irresistible that the evidence should have been submitted to the jury.\\nThis \\u00abconclusion is not inconsistent with the former opinion, but is in accord1 with it. The case on the former trial was rightfully given to the jury, and the charge of the court then given was in the main correct. In only two particulars did this court find it necessary to disagree with the trial court in the views expressed during the course of the trial. Upon the second trial the court should have proceeded as before and submitted the case to the jury, making such modifications in its charge as were pointed out in the former opinion.\\nThe judgment must be reversed and a new trial granted. It is SO' ordered. Costs to appellant.\\nFRICK, O. X, and McCARTY, J., concur.\"}"
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+"{\"id\": \"8873994\", \"name\": \"EDWARD WHIPPLE, Appellant v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, A. N. JOHNSON and SNELLEN JOHNSON, Respondents\", \"name_abbreviation\": \"Whipple v. Preece\", \"decision_date\": \"1899-02-23\", \"docket_number\": \"\", \"first_page\": \"454\", \"last_page\": \"463\", \"citations\": \"18 Utah 454\", \"volume\": \"18\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:48:59.718889+00:00\", \"provenance\": \"CAP\", \"judges\": \"Baskin, J. and McCarty, District J. concur.\", \"parties\": \"EDWARD WHIPPLE, Appellant v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, A. N. JOHNSON and SNELLEN JOHNSON, Respondents.\", \"head_matter\": \"EDWARD WHIPPLE, Appellant v. WILLIAM PREECE, JOSEPH TOLLIVER, LESLIE ASHTON, LYCURGUS JOHNSON, A. N. JOHNSON and SNELLEN JOHNSON, Respondents.\\nWhen Matter in Abstract not Considered \\u2014 Matter Stricken from Bill oe Exceptions \\u2014 Appellant\\u2019s Remedy under R. S. Sec. 3289 \\u2014 Affirmative Defense \\u2014 Instruction to Jury\\u2014 Plaintiff\\u2019s Rights.\\nWhen matters in abstract not considered.\\nThis court cannot consider any matter printed in the abstract not found in the record, or bill of exceptions.\\nMatter Stricken from Bill of Exceptions \\u2014 Appellant\\u2019s Remedy under 21. S. See. 3289.\\nIf matter stricken from a bill of exceptions by a trial judge is regarded as important or necessary by appellant, he has his remedy under R. S. Sec. 3289.\\nAffirmative Defense \\u2014 Instruction to Jury \\u2014 Plaintiffs Rights.\\nWhere affirmative matter is set up in an answer, the court on its own motion should instruct the jury that, as to such matter the burden of proof is upon the defense; and the trial court failing to give such instruction on his own motion, the plaintiff is entitled to have a written request for such an instruction handed to the jury without any words of refusal upon it\\n(Decided February 23, 1899.)\\nAppeal from tbe 4th District Court, Uintah County, Hon. W. N. Dusenberry, Judge.\\nAction for conversion of property. From a judgment upon a verdict of \\u201cno cause of action\\u201d plaintiff appeals.\\nReversed.\\nL. R. Rhodes, Esq., for appellant. S. McDowall, of counsel.\\nThe court in giving plaintiff\\u2019s request marked \\u201c6th\\u201d in the manner he did, with his endorsement thereon in writing, to wit: \\u201cThe foregoing requests are refused, W. N. Dusenberry, Judge,\\u201d the said endorsement being an instruction that the request was refused, and should not be considered by them, and certainly was calculated to mislead the jury. Such endorsement was prejudicial to plaintiff and reversible error.\\nThe court erred in numbering the instructions given other than as marked by counsel for defendants, to wit: \\u201cDefendants\\u2019 Request Nos. 1 to 19,\\u201d inclusive, and in attaching plaintiff\\u2019s request, marked \\u201c6th\\u201d, and \\u201crefused,\\u201d as aforesaid, to the nineteen requests of defendants, and also erred in making oral comment and explanation, in the presence of the jury, as to the instructions.\\n\\u201cInstructions refused or modified, must be so marked.\\u201d Sec. 3148 Rev. Stats., 1898.\\n\\u201c Instructions given shall be in consecutively numbered paragraphs and shall be read to the jury without comment or explanation.\\u201d Sec. 3149 Rev. Stats., 1898. Sackett Inst, to Juries, p. 13.\\nE. 8. Luethi, Esq., 8. B. Thurman, Esq., and Messrs. Warner & Houtz for respondent.\\nAppellant contends that there was an error committed in giving the plaintiff\\u2019s sixth request, for the reason that there was written upon it, \\u201cThe foregoing requests are refused. \\u2014 W. N. Dusenbury, Judge,\\u201d and that the error consists in this, that by the word being there, refused, signed by the judge, the jury would be led to believe that the request had been refused and that they would not consider it. The record in this case shows that the sixth request of plaintiff was read to the jury, and that it was presented to them under such circumstances, that it would be impossible that they should consider it as not before them, by reason of the words written upon it. There was a long colloquy by appellant\\u2019s counsel and counsel for the respondents, with respect to this very instruction in the presence of the jury, which shows plainly that the jury fully understood the request, and that they were to consider it, and not only that but the record shows, by an endorsement upon the sixth request of the plaintiff itself, that it was given, these words appearing on the margin: \\u201cGiven \\u2014 Dusenbury, Judge.\\u201d Therefore no harm, such as plaintiff complains of could have resulted therefrom.\\nThe objection as to numbering the instructions, or failing to number them, together with the objection to the words \\u201crefused\\u201d marked on the sixth request, it seems to us, are hypercritical, and do not touch upon anything that possesses merit in this cause, but rather savors of barren technicality. As we have attempted to show, they were, if not strictly in conformity with the law, without any prejudice to plaintiff, and on account of such, this cause ought not to be returned for a new trial.\", \"word_count\": \"3010\", \"char_count\": \"17289\", \"text\": \"Bartcjh, O. J.\\nThis is an action for the conversion of property, the same having been disposed of under execution, by the defendants. At the trial the jury returned a verdict of \\\"no cause of action,\\\" and, upon judgment having been entered and a motion for a new trial overruled, the plaintiff appealed. Among the numerous errors assigned, is one relating to irregularity of proceedings and conduct of the court. The appellant complains that after the bill of exceptions had been settled, signed and filed with the clerk, the presiding judge made the following order: \\\"On this day came on to be heard plaintiff's motion for a new trial herein, said plaintiff giving as grounds for said motion the misconduct of the court and tbe jury at the trial of said cause heretofore had herein. The court, after hearing the arguments of counsel, and being fully advised in the premises, denied said motion, to which ruling plaintiff, by his counsel, L. R. Rhodes, duly excepted. It was thereupon ordered that pages from 45 to 48-Jr inclusive, be eliminated from the original bill of exceptions, whereupon said pages were duly cut from said bill of exceptions by the clerk. It was thereupon ordered that said original, bill of exceptions, as finally settled by the court, be used as part of the record on the appeal of said cause to the Supreme Court of this State;\\\" and insists that the elimination of the portion of the bill of exceptions thus ordered to be made, prejudiced the rights of the appellant. The part so eliminated has been printed in the abstract, and counsel for appellant has presented it for consideration by this court. The question, therefore, is whether we can consider any matter, although printed in the abstract, which is not found in the record, or bill of, exceptions, as finally settled and signed by the trial judge and filed in this court. We think not. It is true a party to a suit, who feels himself aggrieved by a ruling or order of the court, has a right to allege his exceptions thereto, and, when these are presented in proper form and within the prescribed time to the judge, then, at a time designated by him, of which the parties must have notice, it is his duty, if the exceptions are found to conform to the truth to settle the bill, and, in doing so, all redundant and useless matter should be stricken out. When settled, it is the duty of the judge to sign, attach his certificate to the effect that the same has been allowed, and have the bill filed with the clerk. R. S. Sec. 3286.\\nIf, however, when presented, the exceptions are not conformable to the truth, the judge ought to withhold his signature, until the exceptant consents to change them in accordance with the facts. After a bill of exceptions has been so settled, signed and filed with the clerk, neither one nor both of the parties to the suit, can make alterations therein, without the consent of the judge. Nor can the judge thereafter do so without notice to the parties. If, however, after signature and filing with the clerk, and before filing in the appellate court, it should be ascertained that the bill contains improper and erroneous matter, then the judge, upon notice to the parties to the suit, has undoubted authority to make the necessary correction in the bill, so as to make the exceptions conform to the facts of the case, and such corrections may be made nunc pro tunc, at a subsequent term. 3 Ency. of PL & Pr. 501-505; The People v. Anthony, 129 Ill. 218; Beckwith v. Talbot, 2 Colo. 604; Shepard v. Hull, 42 Me. 577; Churchill v. Hill, 59 Ark. 54; Pollard v. Rutter, 35 Ill. App. 370; Harris v. Tomlinson, 139 Ind. 426.\\nIn the case at bar, on the hearing of the motion for a new trial, the court ordered certain matter to be eliminated from the bill of exceptions. Both parties were present and were heard, or had an opportunity to be heard. The court therefore, had jurisdiction and authority to make the order, and the pages of the bill, containing the matter in question, having, pursuant to the order, been cut out and entirely removed from the bill of exceptions, and not reinstated by proper proceedings, this court has no power to consider the same on appeal. If the appellant was aggrieved because of the action of the trial judge, and regarded the matter stricken from the bill important and necessary to the determination of his rights in the appellate court, he ought to have instituted proceedings, as provided in the K. S. Sec. 3289, which reads: \\\"If the judge in any case refuse to allow an exception in ac cordance witb the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. The application may be made in the mode and manner and under such regulations as that court may prescribe; and the bill, when proven, must be certified by a justice thereof as correct and filed with the clerk of the court in which the action was tried, and when so filed, it has the same force and effect as if settled -by the judge who tried the cause.\\\"\\nIn this section upon the refusal of the judge to allow an exception in accordance with the facts, is provided, for the party aggrieved, a remedy by petition to the appellate court. The appellant, having failed to pursue the remedy, thus clearly pointed out by statute, and having filed a bill in this court which does not contain the matter in question is precluded from insisting upon a consideration of such matter by us, in passing upon the merits of the case, however reprehensible the action of the judge may have been, because a bill of exceptions made up by the judge, aided by counsel of the respective parties, under the solemn sanction of the signature of the judge, properly authenticated, becomes a record, which upon being filed with the clerk of this court, in the absence of proper proceedings to show the contrary, must be held to import absolute verity, and its recital cannot be impeached in the appellate court by matter printed in the abstract, which is not contained in the record itself, as filed in that court. 3 Enc. of Pl. & Pr. 513, 514. Beavers v. The State, 58 Ind. 530. Byrne v. Clark, 31 Ill. App. 651. McDonald v. Faulkner, 2 Ark. 472. Longworth v. Higham, 89 Ind. 352. Murphy v. Martin, 58 Wis. 276.\\nThat the matter, printed in the abstract and claimed to be that stricken out of the bill of exceptions by the order of the court, would constitute a proper ground for excep tion, must be conceded. So, it must be conceded that if it were properly within the bill of exceptions, it would of itself be a sufficient ground for reversal. The affidavit which purports to have been filed by counsel for appellant, and which, it is claimed, was thus eliminated from the record, charges the presiding judge, inter alia, with having been so under the influence of intoxicating liquor, during the conduct of the trial, that he was not in a fit mental condition to preside, or to instruct the jury, or to consider properly instructions prepared for him; and with having, during the trial, been completely under the influence of counsel for the defense. In fact, the charges are of so grave a character that we refrain from quoting the affidavit, lest injustice might result by so doing, and fearing that some of them may have been made without due consideration by the affiant. Especially so, since some of them appear to be controverted by counsel for the respondents in their brief.\\nWere it not for the apparent candor in which, and sincerity and feeling with which, this matter has been argued by counsel on both sides in their briefs, we would be constrained to pass the affidavit in silence, owing to the depressing effect which a judicial discussion of such questions must have upon the populace, in their respect for and confidence in the judiciary of the state and country, and to the high respect and consideration which is due from us to the judges of inferior courts, and to the protection, from unjust assaults upon them, in this court, which is due from us. Under the circumstances, however, and in the absence of any denial of the truth of the charges, by the judge, or action by him in the premises, it becomes our solemn duty to express our unqualified disapproval of such conduct, on the part of a court, as is set forth in the affidavit. Due respect for the exalted .posi tion, proper regard for the welfare of society, security to human rights and liberty, as well as every principle of justice demands this of us. If the charges are untrue, the attorney making them ought to be promptly disbarred; if they are true, which we do not assume to say, then the conduct portrayed has our disapproval and condemnation. Beyond this, we have no power in the premises. It is all important that the purity and integrity of the bench should be preserved \\u2014 that the high character which the judiciary has always borne should be maintained, for it is that that gives .stability to government and guarantees personal rights and liberty. In times when controversies have arisen, which have threatened the governmental structure itself, and at all times, the people, as a last resort, and of right, have been wont to turn in confidence to the courts for an intelligent, a fair and just solution of the difficulties. So, in individual controversies when the fortunes of men are at stake, the parties are wont to turn to the courts in confidence that there is equality before the bar of justice, and that the law will be administered with fairness and ability unclouded by improper conduct. No court is justified in doing or omitting to do anything which will impair that confidence. Just in proportion as the right thinking people of a country lose faith in the judiciary, will the government itself lose cast, weaken and fall into decay. Therefore, no judge who feels the solemnity of his oath, his duty to his government, and realizes his responsibility to litigants, can afford to sit in the trial of a cause when his mental faculties are in a weakened condition by reason of his own improper acts. We make these observations because of the exigency of the occasion, although in full sympathy and accord with the sentiment expressed by the able counsel for the respondents, in their brief, that \\\"a judge is entitled to the respect of members of the bar, to fair and candid treatment from them, and no attorney has the right, in or out of court, to cast suspicion upon, or treat a judge with disrespect or indignity,\\\" and we may add, that whenever an attorney steps outside the bounds of propriety and truth to cast reflections upon a court or judge, he does so in violation of his oath and is unworthy to be a member of the bar.\\nThe appellant also contends that the court committed error in giving plaintiff's request marked number 6, and this point we think is well taken.\\nIt appears that the court gave no charge of its own motion, but submitted all the requests of the defendant to the jury, and refused those of the plaintiff. In giving the requests of the defendants, the court charged the jury that the burden of proof was upon the plaintiff, and upon being requested, by counsel for the plaintiff, to charge that, as to the affirmative matter set up in the answer, the burden was upon the defendants, the judge refused to do so, and handed plaintiff's request marked refused, to the clerk, although there was such matter set up in the answer. Thereupon counsel for defendant suggested that such refusal might be error. Then, upon plaintiff's requests being handed back, the court tore from the files, the request number 6, erased the word \\\"refused\\\" from the margin, wrote the word \\\"given\\\" in place thereof, permitted the expression, \\\"The foregoing requests are refused\\\" over the signature of the judge, to remain thereon, and in that manner after reading it, handed it with the requests of the defendants, to the jury.\\nUnder the pleadings, the court ought to have instructed the jury of its own motion that, as to the affirmative matter set up in the answer, the burden of proof was upon the defense, and having failed to do this, the plaintiff was en titled to have his request given to the jury, without any words of refusal upon it.\\nUnder the circumstances detailed in the record, we are not prepared to say that the jury were not misled, by the action of the court in the premises, and therefore a new trial must be granted.\\nThe appellant further insists that defendants' request, number 2, was argumentative and ought not have been given to the jury. This point also appears to be well taken, but, as it is not probable that the same request will again be given by the court at the next trial of the cause, since attention has been called to its objectionable character, we do not deem a further discussion of it necessary. Nor do we deem it important to discuss any other question presented in the record.\\nThe judgment is reversed and remanded, with directions to the court below to grant a new trial.\\nBaskin, J. and McCarty, District J. concur.\"}"
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+"{\"id\": \"8874256\", \"name\": \"THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants\", \"name_abbreviation\": \"Highland Boy Gold Mining Co. v. Strickley\", \"decision_date\": \"1904-10-26\", \"docket_number\": \"No. 1540\", \"first_page\": \"215\", \"last_page\": \"236\", \"citations\": \"28 Utah 215\", \"volume\": \"28\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T17:06:42.977082+00:00\", \"provenance\": \"CAP\", \"judges\": \"BABTCH, J., concurs. BASKIN, O, J., concurs in the affirmance of the judgment.\", \"parties\": \"THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants.\", \"head_matter\": \"THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Respondent, v. JOHN STRICKLEY and ELLEN STRICKLEY, his Wife, Appellants.\\nNo. 1540.\\n(78 Pac. 296.)\\n1. Eminent Domain: Public Uses: Tramways: Mining. The construction and operation of roads and tramways for the\\ndevelopment and working of mines is a public use, so that Revised Statutes 1898, section 3588, as amended by Sess. Laws 1901, p. 19, c. 25, authorizing condemnation therefor, is constitutional.\\n3. Appeal: Specification of Points Relied on.\\nQuestions dicussed in appellant\\u2019s brief cannot be considered,\\u2019 neither the abstract nor brief containing a specification of the points relied on as grounds for reversal, as required by Supreme Court, Rule 6 (49 Pac. xi).\\n2. Legislative Enactments: Constitutionality: Presumption.\\nLegislative enactments are presumed to be constitutional unless the contrary clearly appears.\\n(Decided October 26, 1904.)\\nAppeal from the Third District Court, Salt Lake County. \\u2014 Him. S. W. Stewart, Judge.\\nAction to condemn a right of way' for plaintiff\\u2019s aerial tramway over defendant\\u2019s mining claim. From a judgment in favor of the plaintiff, the defendants appealed.\\nAffirmed.\\nFrank Hoffman, Esq., for appellants.\\nKent, in volume 2, page 339, of his Commentaries, says: \\u2018 \\u2018 The right of eminent domain, or inherent sovereign power, gives to the Legislature the control of private property for public uses and public uses only;\\u201d and on page 340, \\u201cBut if they should take it \\\"for a purpose not of a public nature, as, if the Legislature should take the property of A and give it to B, or if they should vacate a grant of property or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion, and fraudulent attacks on private right, and the law would be clearly unconstitutional and void.\\u201d The same view is taken by other authors. Smith on Statutes, secs. 136-7; Sedg-wick on Statutes, 514; Angel\\u00ed on Highways, secs. 86-7. And it will be found to be sustained by numerous decisions of court and judges of the greatest weight and authority. Wilkinson v. Leland, 2 Peters 653; West River Bridge v. Dix, 6 How. 545; Scudder v. Delaware Falls Co., Saxt. 726; Sinnickson v. Johnson, 2 Harr. 129'; Beekman v. Railroad, 3 Paige 73; Yarick v. Smith, 5 Paige 159 ; In re Albany Street, 11 Wend. 149; Blood-good v. Railroad, 18 Wend. 56; In re John. & Cherry Streets, 19 Wend. 676; Taylor v. Porter, 4 Hill, 140; Harris v. Thompson, 9 Barb. 361; Embury v. Connor, 3 Comst. 511; Hepburn\\u2019s Case, 3 Bland 98; Bowman v. Middleton, 1 Bay 252; Pittsburg v. Scott, 1 Barr 309; Cooper v. Williams, 4 Ohio 253; McArthur v. Kelly, 5 Ohio 139; Buckingham v. Smith, 10 Ohio 288. In the case of Wilkinson v. Leland, a statute of Rhode Island, which had no written constitution, transferred title to lands. Story, J., says that \\u201cthe doctrine is utterly inconsistent with the great and fundamental principles of a republican government, and with the right of the citizens to the free enjoyment of their property.\\u201d \\u201cWe know of no case in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union. \\u2019 \\u2019\\nThe case of Warehouse Co., 96 N. Y. 42, heretofore cited, was cited and affirmed in the case of Cole v. La Grange, 113 U. S. Reports, page 6, Book 28, Co-op. Edition, page 896, wherein that court says:\\n\\u201cThe general grant of legislative power in the Constitution of a State does not authorize the Legislature, in the exercise either of the right of eminent domain or the right of taxation, to take private property, without the owner\\u2019s consent, for any but a public object.\\u201d\\nThe right to impose a tax for a private purpose is universally conceded to rest upon the same proposition as the right to take property for private purposes.\\nI cite the Savings and Loan Association v. Topeka City, Co-op. Edition U. S. Supreme Court Reports, p. 255. In the syllabus we find:\\n\\u201c1. A statute which authorizes towns to contract debts or other obligations payable in money, implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided.\\n\\u201c2. If there is no power in the Legislature which passes such a statute, to authorize the levy of taxes in aid of the purpose for which the obligation is to be con tracted, the statute is void and so are the bonds or other forms of contract based on the statute.\\n\\u201c5. Among these is the limitation of the right of taxation that it can only be used in aid of a public object, an object which is within the purpose for which governments are established.\\n\\u201c6. It cannot, therefore, be exercised in aid of enterprise strictly private, for the benefit of individuals, though in a remote or collateral way the local public may be benefited thereby.\\u201d\\nAttention is called to the brief in this case found on pages 458-9, and to the table of cases chronologically arranged by States. The authorities are too numerous to be inserted here, but we think we fairly represent the law upon this subject.\\nMessrs. Sutherland, Van Cott & Allison for respondent.\\nThe respondent at the outset objects to this court hearing this appeal, and insists 'that this case should be affirmed irrespective of the merits. The appellants assign no errors in their bill\\u2019 of exceptions or in their abstract. The rule is well settled that it is immaterial how many exceptions are taken by an appellant unless errors are assigned thereon. Suppose that a defeated litigant does except to various rulings, it does not follow that when the bill of exceptions is made up that each exception will be relied upon as actual error on an appeal. The appellant- in such case can only rely, and should only rely, on those errors which are assigned. Our statute in substance so provides. In session laws of Utah, 190-3, page 33, it is provided in substance that when an objection is made to the insufficiency of the evidence to support the verdict or decision that the particulars must be specified in which it is claimed the evidence is insufficient.\\nThe abstract of appellants on page 165 et seq. contains a number of exceptions taken by appellants, but there is nothing to show in the abstract that either of these alleged exceptions will be relied upon for a reversal. This court bas provided in rule 6: \\u201c. . . and shall set forth fully . . . the points relied upon for the reversal of the judgment or decree or order appealed from . . Van Pelt v. Park, 18 Utah 146; Bank v. Brown, 20 Utah 86.\\nThe use of the respondent for its aerial tramway is a public use.\\nThe complaint of respondent shows that it is a mining corporation and authorized to acquire, maintain and operate aerial tramways for the transportation of ores and materials. As to whether respondent is doing this ostensibly for itself exclusively or for others, or for both, does not appear from 'the complaint; therefore, .the general demurrer interposed by appellants cannot possibly raise the question whether the use sought by respondent is.intended to be for itself or for the public generally, or for both. Therefore, the demurrer was properly overruled irrespective of any other question in the case.\\nAs hereinafter appears,_it is a matter of very great importance whether the Legislature can regulate a certain use for the public whenever desired, although in the first instance the use may be so exercised that the company condemning makes the only use. The respondent at the time of the hearing carried its own ores exclusively; it also carried not only its own coal, but coal for the Yampa Mining Company, receiving compensation therefor. So it appears that respondent carries for hire; but at the time of the hearing this was confined only to one person, so that the question before the court is as to whether the use of the respondent is a public use authorizing it to condemn under the statute. To a great extent the discussion of this particular question might be eliminated in view of the recent decision by this court in the case of Nash v. Clark et al., 27 Utah. 158, in which it is held that the construction and nse of an irrigation ditch is a public use. This is so analogous and so pertinent to the particular question at bar that it seems unnecessary to go exhaustively over the particular question in this case. Revised Statutes of Utah, 3588, (6), was amended session laws of Utah, 1901, page 19, (6), so that in substance it is provided that the right of eminent domain may he exercised in behalf of the following public uses: (6) \\u201c. . . tramways ... to facilitate the milling smelting, or other reduction of ores, or working of mines; . . . \\u201d\\nA tramway is used for the transportation of ore, coal and all other materials necessary to the development of mines and the mining industry in this State. Appellants seem to contend that because a tramway transports freight through the air instead on the surface of the ground that this makes such a difference that while a railway is a public use a tramway is not. Respondent does not understand that appellants claim that a railway is not a public use, but they simply contend that a tramway is not a public use. However this may be theoretically, it is plain from the above quotation that our legislature has declared a tramway a public use.\\nSome courts decide that the legislative declaration of what is a public use is conclusive. Stockton, etc., Co. v. City of Stockton, 41 Cal. 168, 169, 175.\\nThere are many other cases to the same effect. We do not cite them, however, on account of our own views being to the effect that the weight of authority, as well as the better reasoning, is to the effect that the legislative declaration is not .conclusive on this question. If this court should take the view that the legislative declaration is conclusive, then no further inquiry is necessary as the Legislature has declared that the use for a tramway in the development of mines is a public use. There are courts, however, that do not agree with the above view, but even these courts hold that primarily the question of what is a public use is a legislative ques tion rather than a judicial one. In U. S. v. Electric Ry. Co., 160 U. S. 668 it appears that the United States was seeking to condemn certain premises so as to preserve the lines of battle at Gettysburg and the right of eminent domain was authorized for this purpose. It was held in substance that whatever tends to \\u2018 \\u2018 enhance the respect and love of the citizen for the institutions of his country and to quicken and strengthen his motives to defend them, \\u201d is a public use. On page 680, it is said:\\n\\u201c ... that when the Legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.\\u201d\\nIn 169U. S. 568, Backus v. Fort, etc:,Co.,it is said:\\n\\u2018 \\u2018 The question of necessity is not one of a judicial character, but rather one for determination by the law making branch of the government.\\u201d (Cases cited omit7 ted.)\\nSee to the same effect: Dayton Mining Co. v. Seawell, 11 Nevada 399-400; 10 Ency. Law (2 Ed.) 1070; Tuttle v. Moore, 64 S. W. 590, and cases cited.\\nIt is obvious that the function to decide upon what is a proper use is rather legislative than judicial because \\u201cpublic use\\u201d is practically equivalent to \\u201cpublic benefit, \\u201d \\u201c public policy \\u2019 \\u2019 and \\u2018 \\u2018 public good, \\u2019 \\u2019 and these matters are usually left to the Legislature to decide, and courts seldom interfere with 'the legislative decision on this question. So that, in any event, this court will not hold our statute unconstitutional in this respect unless it is plainly, clearly and palpably so; and in all cases of doubt will declare the constitutionality of the statute. In Fletcher v. Peck, 6 Cranch 128, it is in part said:\\n\\u201cThe opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. \\u2019 \\u2019\\nIn Munn v. Illinois, 94 U. S. 123, it is said:\\n\\u201cEvery statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.\\u201d Stewart v. Board, 30 Iowa 15.\\nThe effect of this rule is apparent in passing on the constitutionality of statutes. For instance, some statutes might declare that the raising of rats was a public use. This would be plainly, clearly and palpably unconstitutional, because it could not be a public use. On the other hand, it is too clear for argument that a railroad is a public use; all courts so hold, and the reasons are so numerous for so holding that no argument to the contrary could well be made. Between these two extremes, however, courts can approach a dividing line which is so shadowy that it leaves room for argument as to whether or not a statute is constitutional. A short distance on either side of the line the decision is plain, but on the line and for a short distance each side it is doubtful. Whenever the court is in doubt, it holds the statute constitutional. In other words, unless the court is convinced that the statute is plainly, clearly and palpably unconstitutional, it holds the statute constitutional ; and so, taking a circle as representing the constitutional and unconstitutional law, there is much more than half of the circle to represent the constitutional law. So if the court investigates the question as to whether the use in question is a public use, aside from what the Legislature has decided, then the first inquiry is as to what is a public use. This changes from time to time as is well illustrated and stated in Stockton etc. Co. v. City of Stockton, 41 Cal. 168. One hundred years ago, a railroad was not a public use, and probably was not known; the same might be said of the telephone, the telegraph, the electric light and many other modern inventions. So what is a public use constantly changes from time to time according to inventions and according to the needs of the public, and especially according to those needs in different localities. It can be easily imagined that a new invention today might not be held a public use, but tbat it might develop so rapidly that witbin six months all courts would unhesitatingly hold that the use was public. So that the question of what is a public use changes from time to time according to our needs and wants. In the same way, public use depends very much on locality and circumstances. There was a time when eminent domain could not be exercised for manufacturing mills and log booms; but in the New England States where water power is very much in demand, and where it is desirable to overflow lands by baching water to get a large flow, the courts hold, and the public demand that these mills should he recognized as a public use and should have the right to exercise the power of eminent domain for the purpose of condemning land for flooding purposes. Manufacturing in New England is of no more importance to' that locality than is the development of the mining industry in Utah and in other States similarly situated, nor more of a public use than is irrigation in the arid region. If manufacturing is necessary to the public welfare in New England, it is no more so than are mining and irrigation in Utah. So it is held that it is a public use to establish log booms; it might be held that a log boom was not a public use in Utah, because there is not sufficient timber here to justify such holding. The same ruling-might be held in Nevada, and yet exactly the opposite doctrine might prevail in Michigan, Wisconsin, Minnesota, and other States where there are large timber belts. It can well be imagined that mining is a public use in Nevada, Utah, Montana., Colorado, and other western States, and yet that mining would not be a public use in Florida, Louisiana, and other States where there is practically no mineral.\\nAlong the same line of reasoning, a court in Utah would hold that the raising of bananas, oranges and other like products was not a public use, and yet the contrary might reasonably be held in other States adapted to their growth and development. So in New York and Ohio, it would be held that the construction and operation of irrigation ditch.es was not a public nse, and yet the contrary would reasonably he held, and has been held, in Utah and other arid western States. So as to what is a public use depends very greatly on the locality. The court will see, therefore, that public use does not depend merely upon geography; but as public use is the equivalent of \\u201cpublic benefit,\\u201d \\u201cpublic policy\\u201d and \\u201cpublic purpose,\\u201d it may be seen that the development of an industry in one State is a public use while in another State the same industry is not. So, because cases may be found in some States in which it is held that the development of mines is not a public use and in another State it is held a public use, are not pertinent to the question unless the public use in the two different States approximates each other as to> the public welfare. It is admitted, as stated in the cases hereinafter cited, that the courts are in irreconcilable conflict as to what are public uses, and this principle is recognized in the case recently decided in our own court in the case of Nash v. Clark For instance this is well illustrated in the \\u201cMills Act,\\u201d see 1 Lewis Eim. Dom., sec. 180 et seq., and instances there given. The United States Supreme Court has never passed upon the constitutionality of these Mill Acts, and has left the matter in doubt. Head v. Mfg. Co., 113 U. S. 20-1.\\nBy the majority of the courts and from the reason of the thing, it is apparent that the backing up of a stream of water and the overflowing thereby of a large area of land for the purpose of operating a mill is not a mere regulation of the water in that stream among the riparian owners. It might be a mere regulation of the water if a statute should provide as to the use of the stream by the different owners and segregate the use;but when a large area of land is overflooded and the land is taken for flooding purposes, then it is not a regulation of water, it is a taking of the land, and the -great majority of courts in the United States as well as the standard text-writers so hold. So that this court in deciding this case is forced to go to its own decisions, and to the most direct State authorities, and to the nearest analogous cases, in order to decide this ease, particularly keeping in mind the public policy of other States as compared with our own public .policy.\\nOur own court in Nash v. Clark, 27 Utah 158, 75 Pac. 371, has held that the construction of an irrigation ditch is a public use.\\nIf irrigation in Utah is not a public use, it is very difficult to imagine what could be considered such. It is absolutely necessary to the welfare and development of the State; but irrigation is but slightly, if any, more important to the State of Utah than is the development of the mining industry, and our Legislature has treated these two industries as being on a par, as we will hereafter show.\\nIn Irrigation District v. Bradley, 164 U. S. 112, is a case dealing with the question of public use in regard to irrigation matters in an arid district. In the syllabus on page 113, it is said:\\n\\u201cWhat is a public use, for which private property may be taken by due process of law, depends upon the particular facts and circumstances connected with the particular subject-matter.\\n11 The irrigation of really arid lands is a public purpose, and the water thus used is put to a public use; and the statutes providing for such irrigation are valid exercises of legislative power.\\u201d\\nOn page 156 of the same case, it was contended in opposition to irrigation being a public use that the use of the water was not public because it was limited to those particular persons who are entitled to use it at certain specified times, so that the benefit to the public was only indirect or collateral. The same objection could be made by appellants in the case at bar, and the answer to such objection by the Supreme 'Court of the United States is just as pertinent to this as it was in that case. On page 158, the court further says:\\n\\u201cThe question, what constitutes a public use, has been before tbe courts of many of the States and tbeir decisions have not been harmonious, the inclination of some of these courts being towards a narrower and more limited definition of such use than those of others.\\u201d\\nOn the same page the court holds that the fifth amendment is only a limitation on the Federal Government, and that if any relief can be granted, it must be under the fourteenth amendment. The court further says on page 159-160:\\n\\u201cIt is obvious, however, that what is a public use frequently and largely depends upon the facts and circumstances surrounding the particular subject-matter in regard to which the character of the use is questioned.\\u201d\\nThe court further says on page 16\\u00cd):\\n\\u2018\\u00a3 On the other hand, in a State like California, which confessedly embraces millions of acres of arid lands, an act of the Legislature providing for their irrigation might well be regarded as an act devoting the water to a public use, and therefore as a valid exercise of the legislative power. \\u2019 \\u2019\\nThe court further says on page 161 :\\n\\u2018 \\u2018 The fact that the use of the water is limited to the landowner is not therefore a fatal objection to this legislation.\\u2019\\u2019 \\u2019\\nOn page 164, the court further says:\\n\\u201c Taking all the facts into consideration, as already touched upon, we have no doubt that the irrigation of really arid lands is a public purpose, and the water thus used is put to a public use. \\u2019 \\u2019\\nThe above case is quite fully quoted from in the decision by our own court in the ease of Nash v. Clark; but we have inserted the above quotations in this brief on account of their particular pertinency.\\nIn Nevada, a 'statute was passed- stating in substance that the development of the mining industry was of paramount importance, and in substance providing for the exercise of the right of eminent domain the same as in Utah. This statute has been held constitutional in two cases. Dayton Co. v. Seawell, 11 Nev. 394; Overman, etc., Co: v. Corcoran, 15 Nev. 147.\\nIt has been held in Georgia that the development of mines for the purpose of furnishing more gold for circulation is a pubile use, and that too in a State where not very much gold is found. Hand, etc., Co. v. Parker, 59 Ga. 419.\\nThe Nevada statute' has also been held constitutional by. the Federal Court. Douglass v. Byrnes, 59 Fed. 29.\\nThe doctrine of the Nevada and Georgia cases has been approved in Montana. Butte, etc., Co. v. Mont., etc., Co., 16 Mont. 526-8,19 Mont. 462, 48 Pac. 757.\\nIn the last ease in 48 Pac. 757, the court states that the particular language not only applies to the use of water for the purpose of irrigation, but also applies to \\u201cworking a particular mine.\\u201d\\nSo in Arizona, it has been held that a right of way for an irrigation ditch is a public use. Oury v. Goodwin, 26 Pac. 376.\\nThis case has been approved by our own court in the case of Nash v. Clark.\\nA great number of authorities as to the development of mines being public use is collated in 10 Ency. Law (2d Ed.), 1086-7.\\nThere are many States in the Union which would undoubtedly hold that an irrigation ditch is not a public use, and they would be entirely correct in so holding but our own court as well as other courts in the arid region would be just as correct in holding on principle to the direct contrary on account of the difference in the public good. The same determination has been held in Maryland in regard to a railway for the carrying of supplies and coal from a mine. 37 Md. 538, 559.\\nIn Chicago etc. Co. v. Morehouse, 87 N. W. (Wis.), 849, 852-3, it was held that a railway company is exer cising a public use in condemning land for a spur track to one establishment.\\nIn Morrison v. Thistle Coal Co., 94 N. W. (Iowa) 507, is practically to the same effect as the above case from Wisconsin.\\nIn Ahem v. Dubuque etc. Co., 48 Iowa 140, it was held to be a public use to construct drains and levels for the purpose of draining mineral lands so that they would be available for mining purposes.' On principle, there is no difference between the last case and the one at bar.\\nSTATEMENT OE EACTS.\\nPlaintiff brought this action to condemn a right of way for its aerial tramway over defendants\\u2019 mining claim. The record discloses the following facts, viz.: That plaintiff is a mining corporation and authorized to acquire, maintain, and operate aerial tramways 1 for the transportation of ores and other materials. Its mines are situated about two miles from the upper portion of Bingham, and in altitude about 2,700 feet above the valley. The tramway, which consists of two cables supported on wooden towers, extends from the mines to Bingham. The towers in some places are 1,000 feet apart, and in others are close together, the space depending upon the contour of the ground. In case of gullies they are'far apart; in going over ridges they are close together. The buckets run on wheels on the cables, and are moved by a single endless cable to which they' are attached. Loaded buckets are carried down, and the empty buckets brought up. Each bucket holds about 700 pounds of ore, and in them there is carried over 500 tons of ore per day every day of the year. This has been continued since the spring of 1899.' The plaintiff has in sight ore. sufficient to1 last for about seven years, and reasonably expects, in the meantime, to develop ore for four or five years longer. All this ore is to be taken from the mines to Bingham, then loaded into railroad cars and shipped to plaintiff\\u2019s smelter in Salt Lake valley. There is also taken over the tramway from Bingham np to the mines about five tons of coal a day; also supplies used in the operation of the mines are taken up in the same way. The placer claim over which the right of way is sought to he condemned is on a hillside, the surface of which is rough and irregular, and four towers are sufficient to cross the claim. A width of twenty-five feet is required for the towers, and for a team to pass over the ground when necessary for the purpose of making repairs thereon. About 200 men are employed at plaintiff\\u2019s mines, and about 200 at its smelter, which reduces only the ores from plaintiff\\u2019s mines. A jury was impaneled and assessed the damage caused by the erection and operation of the tramway, and the court entered its findings and decree condemning a right of way for the occupation, maintenance, and use of plaintiff for its tramway.. The decree, among other things, provides that \\u201csaid plaintiff is to move said towers to, or rebuild the same on, at any time, different points on said strip hereby condemned, and as often as requested, and at plaintiff\\u2019s expense, when reasonably required by the owners of said mining claim for using the part of said claim not sought to be condemned, as well as the part sought to be condemned; and such use of the said part of said surface by said plaintiff is entirely consistent with the use by said defendants of all of said claim, except as aforesaid for the purpose of mining and working the same, and removing the surface again and again; and the said defendants, or the owners of said claim, as the case may be, may work said claim as they see fit and proper, or otherwise use the same, and whenever the rights herein given to said plaintiff interfere with such use, the said plaintiff is subject to remove said towers, as aforesaid, for the purpose of allowing the owners of such claim full use and enjoyment thereof,. except as aforesaid.\\u201d From that part of the judgment which decrees plaintiff a right of way over defendants\\u2019 mining claim, defendants have appealed to this court.\\nNash v. Clark, 27 Utah 158, 75 Pac. 371.\\nState v. Tingey, 24 Utah 225, 67 Pac. 33; State ex rel. v. Lewis, 26 Utah 120, 72 Pac. 388.\", \"word_count\": \"7140\", \"char_count\": \"40595\", \"text\": \"McOARTT, J.,\\nafter stating the facts, delivered the opinion of the court.\\nPlaintiff bases its right to condemn on section 3588, Rev. St. 1898, as amended in 1901 (Sess. Laws, p. 19, c. 25) which provides that: \\\"The right of eminent domain may be exercised in behalf of the following public uses: . . . (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to facilitate the milling, smelting, or other reduction of ores, or the working of mines. . . .\\\" Appellants (defendants below) contend that the foregoing provision of the statute is in conflict with section 22, art. 1, Const. Utah, which provides that\\u00a3 ' private property shall not be taken or damaged for public use without just compensation,\\\" for the reason that the use made of the right of way sought to be condemned is not a public use.\\nThere appears to be an irreconcilable conflict' in the authorities as to what constitutes a public use. This, no doubt, is largely due to the fact that in many cases what would be a public use in one jurisdiction would not be in another or different jurisdiction. Thus it has been almost uniformly held throughout the Pacific Coast States that the construction and operation of irrigation ditches is a public use, which doctrine, when applied to the arid region, has been approved by the Supreme Court of \\u00a1the United States, whereas in Ohio, New York, Pennsylvania, and other States where irrigation is not followed and is practically unknown, it would undoubtedly be held not a public use. Therefore what shall be considered a public use often depends somewhat upon the locality, the wants and necessities of the people, the condition with which they are surrounded, and the nature and character of the natural resources of such locality, State, or commonwealth. And while it is for the Legislature to determine, in the first instance, whether the use is a public use, and to provide the means of condemnation, yet the great weight of authority holds that the declaration of the Legislature is not final, and that it is ultimately for the courts to determine whether a particular use is public or not. 1 Lewis, Eminent Domain (2d Ed.), 158. The text-writers on eminent domain, and the adjudicated cases, practically all agree that, when the Legislature has declared a use to he public, such declaration will he respected .and followed by the courts, unless the act is clearly and palpably unconstitutional, or the necessity for the taking is plainly without reasonable foundation. 2 Dillon, Mun. Corp. (4th Ed.), 600; U. S. v. Gettysburg Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. 427, 40 L. Ed. 576; Dayton Min. Co. v. Seawell, 11 Nev. 394; Tuttle v. Moore (Ind. T.), 64 S. W. 585; Mills, Eminent Domain (2d Ed.), 10; Lewis, Eminent Domain, 158; 10 Am. & Eng. Ency. Law (2d Ed.), 1070. For a further discussion of the general and well-established rule that legislative enactments are presumed to be constitu-. tional unless the contrary clearly appears, see Fletcher v. Peck, 6 Cranch, 128, 3 L. Ed. 162; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Stewart v. Board of Supervisors, etc., 30 Iowa 1, 1 Am. Rep. 238; State v. Tingey, 24 Utah 225, 67 Pac. 33, and cases cited; State ex rel. v. Lewis, 26 Utah 120, 72 Pac. 388.\\nThe reason for the rule, when applied to \\u00a1the law of eminent domain, is very apparent, as there are some uses for which private property may be condemned the public character of which is so plain that there is no room for argument; and, on the other hand, there are innumerable uses for which property may be and is used, the private character of which is equally clear and plain. As stated by counsel for respondent, in their brief: ' ' Between these two extremes, however, courts can approach a dividing line which is so shadowy that it leaves room for argument as to whether or not a statute is constitutional. A short distance on either side of the line the decision is plain, but on the line, and for a short distance on each side, it is doubtful.\\\" And, as hereinbefore stated, whenever the court is in doubt, it holds the statute constitutional. Therefore, unless it clearly appears that the use made of the right of way in question is private and in no sense public, the validity of the statute must be upheld. Some general rules by which the question as to what constitutes a public use may be determined were declared by this court in the case of Nash v. Clark, 27 Utah 158, 75 Pac. 371. In that case it was in effect held that when the taking is for a use that will promote the public interest, and which tends to develop the great naitural resources of the State, such taking is for a public use.\\nThe mining industry in this State is second in importance only to thait of irrigation, and this court held in the case of Nash v. Clark, supra, that the construction and operation of irrigation ditches is a public use. Counsel for appellants, in his brief, concedes \\\"that irrigation is a public use, and that the condemnation of lands for irrigation ditches is for a public use;\\\" and ag*ain he says, ' ' There is no person, I take it, of ordinary intelligence, that would assert or think for a moment that the system of irrigation, as adopted and' used throughout this whole western country, is not surely a public benefit and a public use.\\\" In Great Falls Mfg. Co. v. Fernald, 47 N. H. 444, the court, after speaking of the interests that New Hampshire had in the improvement and development of her natural water power, say: \\\"No State of the Union is more interested than ours, in the improvement of natural advantages for the application of water power to manufacturing purposes. Nature has denied to us the fertile soil and genial climate of other lands, but by way of compensation has endowed us with unrivaled opportunities of turning our streams of water to practical account. The present prosperity of the State is largely due to what has already been done towards developing these natural advantages, and there is no assignable limit to our resources in this respect if extended and connected enterprises for the improvement of the water power in the State should he successfully prosecuted hereafter. In no part of the world have the public a deeper interest in the success of all undertakings which promise to assist in the development of these great natural advantages. Whether we look to the interpretation which has been given in other jurisdictions to the term 'public use,' in reference to the right of taking private property for such a use, to the legislative practice under the provincial and State governments before and at the time when the Constitution was adopted, to the language of the Constitution itself, to the early and continued legislative practice under the Constitution, to the decisions of the courts in this State or to the character of our business and the natural productions and resources of the State, we are drawn to the conclusion that the Legislature have power to authorize a private right that stands in the way of an enterprise set on foot for the improvement of the water power in a large stream like this river to be taken without the owner's consent, if suitable provision is made for his compensation, and that the act of the Legislature is constitutional and valid.\\\"\\nThe same reasons that hold that manufacturing is necessary to the public welfare in New Hampshire and other New England States can be urged in behalf of mining in Utah and other Western States. The mining industry in this State, and in others similarly situated, not only produces a home market for the products of the farm, and furnishes thousands of men with steady employment at liberal and remunerative wages, but also produces wealth which has enabled other industries to be created and to flourish, which, without the stimulus thus furnished, would languish. In Dayton Mining Co. v. Seawell, supra, Mr. Chief Justice Hawley, speaking for the court, aptly portrays some of the conditions and disadvantages under which the mining industry is prosecuted in this inter-mountain region, as well as some of the benefits derived therefrom, as follows: ' ' The mining and milling interests give employment-to many men, and the benefits derived from this business are distributed as much, and sometimes more among the laboring classes than with the owners of tbe mines and mills. The mines are fixed by the laws of nature, and are often found in places almose inaccessible. For the purpose of successfully constructing and carrying on the business of mining, smelting, or other reduction of ores, it is necessary to erect hoisting works, to build mills, to1 construct smelting furnaces, to secure ample grounds for dumping waste, rock, and earth; and a road to and from the mine is always indispensible.- The sites necessary for these purposes.are often confined to certain fixed localities.\\\" We have in this State, in addition to the extensive deposits of gold, silver, lead, and copper ores, large1 areas of lands containing coal in almost limitless quantities, and we depend almost exclusively upon the coal mines for the fuel used in our manufacturing establishments and for domestic purposes. Now, it is of vital importance to the people that the coal, as well as the other hidden resources of the State, be opened up and developed, and that the mining industry in general, which has been the source of so much wealth to the people of this and other Western States, be conducted on the same extensive scale in the future that has characterized its operations in the past. Therefore the public policy of the State, as exemplified by the act of the Legislature under consideration, is to encourage the people to open up and exploit the mines with which the State abounds, and thereby not only give to the State the wealth which will enable other industries to be created, but furnish thousands of laborers with remunerative employment.\\nIt being conceded, and this court having held, that the construction and operation of irrigating ditches in this State is a public use (Nash v. Clark, supra), it follows that the construction of roads and tramways for the development of the mining industry is a public use, as the same line of reasoning that applies in support of the doctrine in the one case holds good in the other. Otherwise a party owning a few acres of farming land, or only a few square rods for that matter, conld invoke the law of eminent domain, and by condemnation, proceedings acquire a right of way across his neighbor's land for an irrigation ditch to convey water to his small holdings; whereas the. owners of mines and of works for the reduction of ores, the operations of which furnish thousands of men in this State with employment at good wages, and to which the general prosperty of the State is largely due, would be denied the right to invoke this same rule of law in order to acquire, when necessary to the successful operation of their business, rights of way for the transportation of ores from the mines to the mills and smelters, and for the construction of tunnels for drainage and other purposes. And parties holding the title to ground necessary and suitable for these purposes, which, in many cases, except for such purposes, might be entirely worthless, would be clothed with power to demand and compel payment of an unconscionable price for their lands before parting with the title, or they could refuse, absolutely,' to grant the .easement required on any terms, and thereby in some cases cripple mining enterprises, or destroy them altogether. Such a policy would not only be inconsistent and unreasonable, but would greatly retard the development of one of the greatest natural resources of the State. We are therefore of the opinion, and so hold, that the construction and operation of roads and tramways for the development and working of mines is a public, use. The act of the Legislature under consideration makes ample provision for the payment of a fair price to the owner for lands sought to be condemned, and for all damages that he may suffer because of such taking, and is therefore valid.\\nThere are several other questions of minor importance raised and discussed by appellants in their brief, but as neither the abstract nor brief contain a specification of the points relied npon as grounds for a reversal, as required by rule 6 of this court (49 Pac. xi), they can not he considered. The judgment of the trial court is affirmed, 'with costs.\\nBABTCH, J., concurs. BASKIN, O, J., concurs in the affirmance of the judgment.\"}"
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+"{\"id\": \"8874332\", \"name\": \"UNITED STATES OF AMERICA, Respondent, v. JOSEPH CLARK, Appellant\", \"name_abbreviation\": \"United States v. Clark\", \"decision_date\": \"1889-01\", \"docket_number\": \"\", \"first_page\": \"120\", \"last_page\": \"128\", \"citations\": \"6 Utah 120\", \"volume\": \"6\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:52:05.403522+00:00\", \"provenance\": \"CAP\", \"judges\": \"BoheMAN, J., concurred, SaNdeobd, C. J., dissented. But no dissenting opinion was ever filed.\", \"parties\": \"UNITED STATES OF AMERICA, Respondent, v. JOSEPH CLARK, Appellant.\", \"head_matter\": \"UNITED STATES OF AMERICA, Respondent, v. JOSEPH CLARK, Appellant.\\nCRimdstax, Law \\u2014 Unlawful Cohabitation \\u2014 Sufficiency of Evidence. \\u2014 Under Section 3 of Edmunds Law, 22 Stat. 31, a man who has two wives, a legal and plural wife, both living within the jurisdiction of the Court, both bearing his name and known as his wives, is guilty of unlawful cohabitation, even though he deserts the lawful wife, and cohabits exclusively with the plural wife.\\nId. \\u2014 Id.- -Presumption as to Lawful Wife. \\u2014 A man whose lawful wife is living within the jurisdiction of the Court, bearing his name and known as his wife, is conclusively presumed to cohabit with her; overruling, U. S. v. Smith, 5 Utah 232; U. S. v. Harris, 5 Utah 436; U. S. v. Clark, 5 Utah 226.\\nId. \\u2014 Id.\\u2014Edmunds Laws \\u2014 Legislative Construction.' \\u2014 The fact that Congress in the Edmunds Law, 22 Stat. 31, defines \\u201c unlawful cohabitation,\\u201d where there was no law forbidding adultery, and afterwards in the Bdmunds-Tucker Law, 24 Stat. 635, defined the crime of adultery, was not a legislative construction that actual cohabitation with both wives was necessary to the crime of unlawful cohabitation.\\nAppeal from an order refusing a new trial and from a judgment of conviction of the district court of the first district. The opinion states the facts.\\nMr. Samuel R. Thurman (with wbom were Mr. George Sutherland and Messrs. Sheeks and Rawlins on tbe brief) for the appellant.\\nCohabitation between husband and wife is a question of fact. It is not conclusively presumed from lawful marriage. It is only an incident, not an essential.\\nMurpJi ij v. Ramsey, 114 U. S. 13.\\nCohabitation may cease between husband and wife and in some cases it will not be renewed even by acts of sexual intercourse between the parties.\\nStewart on Marriage and Divorce, Sec. 252.\\n87 Ill., 250, 254.\\nIf positive acts of sexual intercourse between husband and wife under certain conditions is not conclusive evidence of cohabitation, a fortiori, a casual visit on business not characteristic of the marriage relation under similar conditions, is not conclusive.\\nThe defendant had not lived or cohabited with Sarah for three years. This fact the Court concedes in its decision overruling the motion for a new trial.\\nSee Bill of Exceptions.\\nThe matrimonial offense of desertion is defined to be wrongfully and wilfully ceasing to cohabit.\\nBishop\\u2019s Marriage and Divorce, Yol. I, 777-811.\\nA test question in this case would seem to be: Would Sarah Clark be entitled to a divorce on the grounds of desertion upon a proper application in the Court of competent jurisdiction? If she would then there was no cohabitation, because desertion and cohabitation cannot exist in the same case at the same time. It cannot be doubted that the cohabitation which is essential to guilt under the \\u201cEdmunds Law\\u201d is simply matrimonial cohabitation as defined in various treatises on the relation of husband and wife. This being true, the question whether or not- desertion exists in a given case is certainly an infallible test as to the existence or non-existence of cohabitation, for one is the converse of the other, and where it exists the other does not. His continuity of desertion is not broken except by a renewal of cohabi tation. It is not broken by a casual meeting, a casual call on business, or, as we said before, it is not necessarily broken by an act of sexual intercourse itself. The act or acts to have that effect must be coupled with the intention to renew cohabitation. Then and not until then will the continuity of the desertion be broken.\\nAnd appellant cited U. S. v. Snow, 4 Utah, 280, 295, 313; U. S. v. Clark, 5'Utah, 226; U. S. v. Harris, 5 Utah, 436; 17. 8. v. Smith, 5 Utah, 232.\\nMr. George S. Peters, U. S. District Attorney, and Mr. David Evans, Assistant U. S. District Attorney, for the respondent.\", \"word_count\": \"2960\", \"char_count\": \"16775\", \"text\": \"HENDERSON, J.:\\nThe defendant was convicted of unlawful cohabitation, in the first district court, under section 3, 22 St. 31, known as the \\\" Edmunds Law,\\\" and appeals to this court. The record contains an agreed statement of facts from which it appears that the defendant married Sarah Clark over thirty years ago; that she thereby became and still is his lawful wife; that in 1852 he married another woman, named Hannah Clark, and that in September, 1868, he married a third woman, named Francis Clark; that defendant has not lived with the second wife, Hannah, for some years past, but that during the time covered by the indictment he has lived and cohabited with the third wife, Francis Clark; that all of said women have resided at Provo, in the first judicial district, during all the time since their marriages, respectively, and still reside there; that they live in separate houses, the first wife, Sarah, living in one house, together with children of herself and defendant. Sarah, the lawful wife, has sworn and testified that the defendant abandoned and deserted her without her consent, about three years ago, and before the time covered by the indictment, and. had not lived with her since, and had only called at her house once or twice within the time covered by the indictment. The court charged the jury among other things, as follows: \\\"The facts seem \\u2022to show that about thirty-nine years ago this defendant married a woman in tbe Territory o\\u00a3 Utab by tire name of Sarah Clark; that about 1852 or 1853 be married another woman by tbe name of Hannah Clark; that about the twenty-sixth of September, 1868, he married a third, a woman by the name of Francis Clark; that he has not lived with Hannah for some years past, \\u2014 may be eight or ten years. It is here insisted by counsel for the defense that he has not lived or cohabited for the last three years with the lawful wife, Sarah, but that he has abandoned her as his wife. It appears, further, from the proof, that within the time covered by this indictment he has lived and cohabited with the third wife, Frances Clark. Now, upon this statement of facts, if you find them to be the facts and true, the Court charges you the law in so many words to be this: that, if he lived and cohabited with Sarah Clark, and at the same time lived and cohabited with Francis Clark as his wife, he would be guilty. If he lived and cohabited with Francis as his wife, and visited Sarah, the law presumes, and will not allow him to say on the trial, that these visits were not as a husband, and would be sufficient to establish cohabitation with the legal wife, Sarah. And, gentlemen of the jury, the Court is of opinion, and I also instruct you, that if the proof shall show that, in 1850, thirty-nine years ago, he married Sarah and that she from that time up to now was and is his lawful, living wife, and undivorced, and that, in that condition of things, lived and cohabited with a plural wife, Francis Clark, that he would be guilty. The Court is of opinion, and so charges you, that a man should have but one wife, and that should be his lawful wife, and that he should live and cohabit with her, and that it would be an evasion of the law to say that I have abandoned my lawful wife, and therefore I am not guilty, because I am cohabiting with one woman. The Court believes congress did not intend any such thing in the passage of the law, and instructs you that if the lawful wife, Sarah, was still living and undi-vorced, and in that condition he goes and lives and cohabits with Francis, he must be guilty, and the law will not allow him to say that he has abandoned his lawful wife, and cohabits with but one woman.\\\"\\nThis instruction is alleged to be erroneous. This record presents the single question, as to whethef a polygamist whose wives, both the lawful and the plural, are living within the jurisdiction of the court, both bearing his name and known as his wives, is guilty of violating the act of congress above referred to when he lives exclusively with the plural wife, and deserts the lawful one. It is contended by the defendant that the statute only prohibits a man from cohabiting with more than one woman; that, being a penal statute, it should be strictly construed; and that, therefore, actual cohabitation must be shown both with the plural and legal wives. On the part of the government it is contended that, when' it is shown that one of' the women whom he is charged to have cohabited with is his legal wife; that she is living within the jurisdiction of the court, bearing his name, and known as his wife, \\u2014that he is conclusively presumed to cohabit with her, within the meaning of the statute; that the statute does not make it necessary and that it was not intended by it to tolerate the inquiry as to whether the party charged actually cohabited with his legal wife. This statute has been several times before the court for construction, but the precise question here presented has never been determined. In the case of U. S. v. Cannon, 116 U. S. 55, 6 Sup. Ct. Rep. 286, the defendant was charged with unlawful cohabitation with two women, both of whom were plural wives, and of course it was necessary to show actual cohabitation, within the meaning of the statute, with both. The defendant contended that cohabitation, within the meaning of the statute, meant sexual intercourse; and the Court, referring to this claim on the part of the defendant, and construing the statute, said: \\\" But we are of opinion that this is not the proper interpretation of the statute, and that the Court properly charged the jury that the defendant was to be found guilty if he lived in the same house with the two women, and ate at their respective tables, one-third of his time, or thereabouts, and held them out to the world by his language or conduct, or both, as his wives; and that it was not necessary it should be shown that he and the two women, or either of them, occupied the same bed, or slept in the same room, or that be had sexual intercourse with \\u2022either of them. This interpretation, is deducible from the language of the statute throughout. It refers wholly to the relations between men and women founded \\u2022on the existence of actual marriages. It is the practice of unlawful cohabitation with more than one woman that is aimed at, \\u2014 a cohabitation classed with polygamy, and having its outward semblance. It is not, on the one hand, meretricious, unmarital intercourse with more than one woman. General legislation as to lewd practices is left-to the territorial government. Nor, on the \\u2022other hand, does the statute pry into the intimacies of the marriage relation, but it seeks, not only to punish bigamy \\u2022and polygamy when, direct proof of the existence of those relations can be made, but to prevent a man from flaunting in the face of the world the ostentation and opportunities of a bigamous household, with all the outward appearances of the continuance of the same relations which existed before the act was passed, and without reference to what may occur in the privacy of those relations. Compacts for sexual non-intercourse, easily made and as easily broken, when the prior marriage relations continue to exist, with the occupation of the same house and table, and the keeping up of the same family unity, is not a lawful substitute for the monogamous family, which alone the statute tolerates.\\\"\\nIn various cases in this court, it has been held that cohabitation with the legal wife is presumed, but that such presumption is one of fact, and can be rebutted, and is to be given such weight, and only such weight, as the jury think it ought to have under the circumstances of the particular case. U. S. v. Snow, 4 Utah, 295, 9 Pac. Rep. 501; Id. 686: U. S. v. Smith, 5 Utah, 273, 14 Pac. Rep. 292; U. S. v. Harris, 5 Utah, 476, 17 Pac. Rep. 75. These cases have been followed by the district courts, and this presumption, together with the presumption of innocence, have been submitted to the jury, for them to find a verdict as they should give more or less weight to these contending and conflicting presumptions It will readily be seen that the rule contended for by the defendant in this case would permit a polygamist, upon tbe discontinuance of tbe practice of polygamy, wbicb tbis statute is intended to enforce, to select tbe plural wife, and discard tbe lawful one, \\u2014 thereby placing tbe two on terms of absolute equality, and to that extent giving the same force and effect to their respective marriages, and leaves tbe first wife to struggle on equal terms with tbe plural for tbe possession of her husband,\\u2014 a contest in wbicb she has already lost. If,,as tbe supreme court of tbe United States have said (U. S. v. Cannon, supra,) tbe statute under which tbis prosecution is brought is .to be construed with reference to tbe balance of the act and other legislation upon tbe same subject, and that in a contest between monogamous and polygamous practices it is to be construed as tbe intervention of tbe government in favor of the former, we would naturally seek a construction consistent with tbis idea, and one that would furnish some protection to the monogamous home, which alone tbe statute tolerates, and one wbicb would not defeat tbe object wbicb congress bad in view in passing tbis statute. Suppose tbe defendant in tbis case should desire to return to bis wife and home, and be should do so, and tbe next, day, at tbe instance of tbe plural wife, he should be arrested for tbe violation of tbis statute. He could not escape conviction. According to tbe contention of tbe defendant, be would be guiltless if be remained with the plural wife, and tbe essential element of tbe crime would be found in tbe fact that be bad returned to bis lawful wife, \\u2014 just what tbe courts have been bolding it was bis duty to do, and that there is a presumption to that effect, because it is bis duty. But it is contended that tbe statute of 1887, providing a punishment for tbe crime of adultery, is a legislative construction in favor of tbe defendant's claim, and was intended to apply to those who leave their lawful wives and cohabit with a plural wife. But \\\" cohabitation,\\\" within tbe meaning of tbe statute, is not necessarily sexual intercourse, as already shown; and a man may cohabit with a plural wife, and still not be liable to punishment under tbe law of 1887. Tbis latter statute, providing a punishment for tbe crime of adultery, was en acted because tlie milder measures of 1862 and 1882 had proved ineffectual to stop the practice of begetting illegitimate children, and was intended as a still further protection to the monogamous home and lawful marital rights.\\nCounsel contended that, if congress had intended to have the act construed as contended by counsel for the government, it might have said: \\\"Whoever, having a lawful wife alive, cohabits with another woman, or whoever cohabits with a woman other than his lawful wife, while she is living.\\\" True, it might have done so, but that would not have accomplished what was intended. It might happen, as in the Cannon Case, supra, that both of the women with whom defendant is charged to have cohabited are plural and illegal wives. In that case, actual cohabitation in fact must be shown, but, if one is the lawful and the other an unlawful wife, then the essential element of guilt is the latter. Congress was aiming at the plural marriage relation, and, as said in the Cannon Case, \\\" it refers wholly to the relations between men and women founded on the existence of actual marriages, or on the holding out of their existence.\\\" In this case Sarah Clark is the lawful wife of the defendant. He is the legal head of the family, composed of his wife and their children. Could this status be added to or made more binding by proof that he had been with them occasionally? Or could the defendant detract from it by showing that he had violated his duty, and deserted them? We think not. When the defendant left his wife and their children, \\u2014 bearing his name, known as such, \\u2014 and lived with Francis, as his wife, he became the head of two families, \\u2014 \\\"a household and a family twice repeated.\\\" The law fixes and declares his status as to the one, and his own act has fixed it as to the other. We think that when a polygamist has a lawful wife living within the jurisdiction of the court, known and understood to be such,, and lives and cohabits with another woman as his wife, he is guilty of a violation of the statute; that the presumption that he cohabits with the legal wife is a legal one, and is conclusive, if it is a presumption at all.' His status in relation to each of the two women, in our opinion, is such that, as a matter of law, he cohabits with them within 'the meaning of tbe statute. Tbe judgment of tbe court below should be affirmed.\\nBoheMAN, J., concurred, SaNdeobd, C. J., dissented. But no dissenting opinion was ever filed.\"}"
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+"{\"id\": \"8874589\", \"name\": \"NELLIE E. FISHER et al., Respondents, v. HARRIET S. EMERSON, Appellant\", \"name_abbreviation\": \"Fisher v. Emerson\", \"decision_date\": \"1897-10-04\", \"docket_number\": \"No. 827\", \"first_page\": \"517\", \"last_page\": \"522\", \"citations\": \"15 Utah 517\", \"volume\": \"15\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:39:56.965644+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NELLIE E. FISHER et al., Respondents, v. HARRIET S. EMERSON, Appellant.\", \"head_matter\": \"NELLIE E. FISHER et al., Respondents, v. HARRIET S. EMERSON, Appellant.\\nInjunction \\u2014 Findings op Court - Clerk\\u2019s Filing Fees \\u2014New Trial.\\n1. Plaintiff brought an action to enjoin defendant from constructing a fence upon an alleged right of way. An order to show cause was made, returnable July 7, 1896. The cause came on regularly for hearing, a trial was had upon the evidence, and the cause, on complaint, answer, and evidence, duly submitted to the court for its decision, and by the court taken under advisement. . The plaintiff at the beginning of the trial objected to have the hearing stand as a final hearing of the cause, but the court made no order on that objection. On July 16, 1896, the court made, and left with the clerk, and ordered filed its decision and findings, in writing, and conclusions of law in favor of defendant, and that plaintiff pay costs. The findings and conclusions were not filed till October 10, 1896, when an order was made to file them as of July 16, 1896; the clerk\\u2019s costs for filing same not having been paid, through mistake. On July 21, 1896, the cause was again called for final hearing on the merits. Defendant objected to the hearing on the ground that the court had no jurisdiction to retry said cause, because the trial of July 7, and the findings of July 16, had not been set aside, or a new trial granted. Upon the second trial the judgment was awarded in favor of plaintiff. Held, that when the court left the findings and conclusions with the clerk on July 16th, and ordered them filed, they were just as effectually filed as though the clerk had put his filing mark upon them, and that was emphasized by the subsequent order to file them as of July 16, 1896; the duty of filing devolving upon the court, and not upon the prevailing party.\\n2 The making and filing of the findings and conclusions was part of, and must precede the entry of, judgment. The fee for filing should be included in the trial fee.\\n3. After the first hearing upon the complaint, answer, and evi- deuce, the court had no power or authority to retry the case and hear other testimony, or make other findings of fact contrary to those found upon the first hearing, without a motion for a new trial, or without first setting aside the findings of fact and granting a new trial.\\n4. When the written findings and conclusions were filed the trial was ended. A new trial is a re-examination of the issues of fact, and has nothing to do with the judgment, which is a sentence of the law 'upon the facts. Proceedings for a new trial may be commenced either before or after the entry of judgment.\\n(No. 827.\\nDecided Oct. 4, 1897.)\\nAppeal from the Second district court, Weber county. H. H. Eolapp, Judge.\\nSuit by Nellie E. Fisher and others against Harriet S. Emerson. Judgment for plaintiffs. Defendant appeals.\\nReversed.\\nKimball & Kimball, for appellant.\\nAfter the court made and filed its findings, it had no power or authority to hear other testimony or make other findings without a motion for new trial by the plaintiff, nor without setting aside its findings of fact and granting such new trial. Hayne on New Trial and Appeal, sec. 246; Hidden r. Jordan, 28 Cal. 305; Price v. Lynch, 38 Cal. 528; Gowning v. Rogers, 34 Cal. 652; Grim v. Kessing, 89 Cal. 478.\\nWhipple & Johnson, for respondents.\\nCited: Broder v. Conlclin, 98 Cal. 360; Hastings v. Hastings, 31 Cal. 95; Hayne on New Trial and Appeal, sec. 246; Gandee v. Bartoio, 62 Cal. 1; Wells r. Kreyenhagen, 49 Pac. 128; McLaughlin v. Doherty, 54 Cal. 519; Potter v. Tallcington, 49 Pac. 14; Pinder v. Yager, 29 la. 468.\", \"word_count\": \"1872\", \"char_count\": \"10511\", \"text\": \"Per Curiam.\\nThis action was brought to enjoin defendant from constructing a fence upon a right of way alleged to belong to the plaintiffs, and that plaintiffs be decreed to have free use of such right of way. An order to show cause why an injunction should not issue, restraining the defendant from the acts complained of, was issued, and made returnable July 7, 1896. The cause came on regularly for hearing upon the order to show cause on the day set for said hearing, and upon the complaint and answer in the case. A trial was had, witnesses sworn and examined on behalf of both parties, documentary evidence was introduced by plaintiffs and defendant, and the cause, on complaint, answer, and evidence, was duly submitted to the court for its decision, and was by the court taken under advisement. The plaintiff at the commencement of the hearing objected to have the hearing stand as a final hearing of the cause, but the court made no order on that objection. On the 16th day of July, 1896, the court, being duly advised, made and left with the clerk, and ordered filed, its decision and findings in writing, in due form, finding all the material facts in favor of the defendant and against the plaintiffs, and also filed the following conclusions of law: \\\"(1) As conclusions of law from the foregoing facts, the court now hereby finds and decides that the plaintiffs are not entitled to an injunction against the defendant, enjoining and restraining her from erecting the fence described in finding of fact No. 4. (2) That the defendant is entitled to have a restraining order issued in this cause on the 26th day of June, 1896, dissolved. (3) That the plaintiffs are not entitled to have said restraining order. (4) That the plaintiffs are not entitled to have an injunction in this action, and the defends nt is entitled to recover of the plaintiffs her costs incurred in this action.\\\" Tbe findings and conclusions were left by tbe court with tbe, clerk for'filing, but were not filed until October 10, 1896, wben a nunc pro tunc order was made to file them as of July 16, 1896; tbe clerk's costs for filing tbe same not having been paid, through mistake. On July 21, 1896, tbe cause was again called for final bearing on tbe merits. Tbe defendant objected to proceeding with tbe said trial on tbe ground that tbe court bad no authority or jurisdiction to retry said cause, because of tbe trial on July 7, and tbe findings of fact of July 16, 1896; tbe same not having been set aside, o*r a new trial granted. Tbe objection was overruled, and tbe trial was proceeded with, under objection and exception by defendant. Upon this trial, findings, conclusions, and judgment were rendered in favor of tbe plaintiffs and tbe injunction prayed for awarded. Defendant appeals from this judgment, and alleges that tt\\u00ede court erred in proceeding with tbe trial anew on July 21, and making its findings and judgment, because of the trial before tbe court of July 7, 1896, and tbe findings and conclusions found in favor of tbe defendant, and that the same bad not-been set aside or a new trial granted at any time.\\nTbe findings and conclusions of law upon each bearing were entirely antagonistic and contradictory. Upon tbe first bearing tbe injunction was denied, and costs awarded to defendant. Without setting aside tbe findings, and without any motion or order for a new trial, tbe court, under objection, proceeded to a rehearing of tbe cause, and came to an opposite conclusion from that reached at tbe first bearing. Wben the court left tbe findings of fact and conclusions of law with the clerk, on July 16th, and ordered them filed, they were just as effectually filed as though tbe clerk bad placed bis filing mark upon them. This is emphasized by the fact that subsequently the court ordered the findings and conclusions of the first hearing filed as of July 16, 1896. Section 3379, Comp. Laws Utah 1888, does not make it the duty of the prevailing party to file the decision in any case. This duty devolves upon the court. Section 141, p. 559, Sess. Laws 1896, requires the clerk to collect $7.50 in advance, from the party commencing any action, when an injunction is asked, for services up to the time of the trial, and $2.50 for the trial of the case, including the entry of judgment. The making and filing of the findings and conclusions was a part of, and must precede the entry of, the judgment. The fee for filing should be included in the trial fee. As appears from the record, a trial of the case was had on July 7 and 8,1896, upon the complaint and answer. Witnesses were sworn and examined on behalf of both parties, and documentary evidence was introduced. The case was submitted to the court for its decision on the order to show cause, the complaint, answer, and evidence, and the same taken under advisement. On the 16th day of July, 1896, the court made, and left with the clerk, and ordered filed, its findings and conclusions, thereby determining and deciding all and the only question of fact put-in 'issue by the pleadings in favor of the defendant, with costs against the plaintiffs. When the written findings and conclusions were filed, the trial was ended. There remained nothing further to be done except the entry of the judgment, which would not constitute any part of the trial. After the court heard the cause on the merits, \\u2014 op the complaint, answer, and testimony, \\u2014 and the same was submitted for its decision, and it made its finding of fact and conclusions of law denying the injunction prayed for, it had no power or authority to retry the case and hear other testimony, or make other findings of fact con trary to those found upon the first hearing, without a motion for a new trial, or without first setting aside the findings of fact and granting a new trial. Hayne, New Trial & App. \\u00a7 246, 247; Hidden v. Jordan, 28 Cal. 305; Prince v. Lynch, 38 Cal. 528; Crim v. Kessing, 89 Cal. 478.\\nThe respondent was not prevented from filing a motion for a new trial upon the findings before judgment was rendered. A new trial is a re-examination of the issues of fact, and has nothing to do with the judgment, which is a sentence of the law upon the facts. Proceedings for a new trial may be commenced either before or after the entry of judgment. A motion for a new trial was a proper method for reviewing the testimony and findings upon the first hearing. No proceeding having been taken for a new trial, or to set aside the findings, it was irregular to proceed to a rehearing of the case at a subsequent date. Hayne, New Trial & App. \\u00a7 16, 1; Comp. Laws Utah 1888, \\u00a7 3402, subd. 1; Ketchum v. Crippen, 31 Cal. 366.\\nThe judgment appealed from is reversed, and the court is directed to set aside the findings of fact and conclusions of law made and filed September 10, 1896, and to enter judgment on the findings of fact and conclusions of law made and filed July 16, 1896.\"}"
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+"{\"id\": \"8874625\", \"name\": \"BONANZA CONSOLIDATED MINING COMPANY et al., v. GOLDEN HEAD MINING COMPANY\", \"name_abbreviation\": \"Bonanza Consolidated Mining Co. v. Golden Head Mining Co.\", \"decision_date\": \"1905-04-11\", \"docket_number\": \"No. 1612\", \"first_page\": \"159\", \"last_page\": \"180\", \"citations\": \"29 Utah 159\", \"volume\": \"29\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:34:52.619254+00:00\", \"provenance\": \"CAP\", \"judges\": \"McCARTY, J., concurs.\", \"parties\": \"BONANZA CONSOLIDATED MINING COMPANY et al., v. GOLDEN HEAD MINING COMPANY.\", \"head_matter\": \"BONANZA CONSOLIDATED MINING COMPANY et al., v. GOLDEN HEAD MINING COMPANY.\\nNo. 1612.\\n(80 Pac. 436).\\n1. Mines \\u2014 Locations\\u2014Notices\\u2014Description.\\u2014Two recorded notices of mining locations 'each contained the name of the claim, the signature of the locator, the date of location and of record, ,and the county and mining district where located. One of them described 'the claim as commencing at discovery, and running 750 feet in a northeasterly direction and 750 feet in a southwesterly direction, \\u201c Marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of the center.\\u201d The other was described as commencing at discovery, and claiming 300 feet on each side of the center of the vein, together with all dips, spurs, angles, and variations, running in a southwesterly direction, and 750 feet in a northeasterly direction from discovery, \\u201cmarked by lawful stakes on both ends and corners 1, 2, 3, and 4.\\u201d There was proof . that the descriptions and markings indicated in each case were true; that a stake and notice were posted at each discovery, and that a stake three or four inches in diameter and four to four and one- \\u25a0 half feet high was marked and set up in each comer, except that at one corner a stump was marked; and that surveys for patents were made, covering the ground practically as originally located and staked. Held, that such notices substantially complied with Revised Statutes U. S., section 2324 (TJ. S. Comp. St. 1901, p. 1426), requiring the locations to be distinctly marked on the ground so that their boundaries can be readily traced, and were not void for uncertainty of description.\\n2. Same \\u2014 Evidence.\\u2014The sufficiency of the location of a mining claim, with reference to natural objects or permanent \\u25a0monuments, is a mere question of fact.\\n3. Same \\u2014 Coneiicting Locations.- \\u2014 Where, in a suit to quiet title to a mining claim, there was an issue as to a conflict between the B. bio. 2, and the M. claims, the record in a former suit between the owners of the B. No. 2 and the L. O. claim, the parties being in privity, in which it was held that the B. No. 2 was not a valid location because its discovery point was within the location of the L. C., was admissible, though not pleaded, for the purpose of showing that the B. No. 2 location was invalid.\\n4. Same \\u2014 Evidence\\u2014Bes Judicata. \\u2014 The issues in the two suits with reference to the conflict in location not being the same, the former suit could not be relied on as*res judicata.\\nStraup, J., dissenting.\\n(Decided April 11, 1905).\\nAppeal from District Court, Wasatch County; J. E. Booth, Judge.\\nSuit by the Bonanza Consolidated Mining Company and others against the Golden Head Mining, Company. From a decree finding that neither plaintiffs nor defendant was entitled to the area embraced within certain mining claims, plaintiffs appeal.\\nAppiemed.\\nE. A. Walton and A. W. Casey for appellants.\\nP. L. Williams for respondent.\\nAPPELLANT\\u2019S POINTS.\\nThe notices of location are indefinite and do not describe any ground, and do not tie to any natural monument or permanent object such as will indentify the claim.\\nSuch notices have uniformly, under sucb circumstances, been beld void for uncertainty.\\nSection 2324, Revised Statutes of tbe United States requires all recorded notices to contain sucb a reference to a natural object or permanet object as will identify tbe claim. (.Drummond v. Long [Col.], 13 Pac. 543; Faxon v. Bernard, 4 Ped. 702; Mining Oo. v. Brahe [Col.], 9 Pac. 787; Barger v. Lesieur, 8 Utab 160; s. c., 9 Utab 192; 1 Lindley on Mines [2 Ed.], 355.)\\n. Tbe pleadings of tbe defendant do not sbow in any way that it relied upon a former adjudication, and there are and always may be matters in avoidance of a decree, and it could not be expected that we would be prepared to meet sucb proof with matters in avoidance, not having been advised by proper pleadings.\\nIn equity tbe defense of former adjudication to bar a bearing on tbe merits must always be set up by proper aver-ments in tbe pleadings. (Galloway v. Hamilton, 1 Dana, 576; Lyon v. Tahnadge, 14 Johns 511; Ferguson v. Miller, 5 Ohio 460; Jourolman v. Massangall, 86 Tenn. 81.) The rule is tbe same under the Codes. (Gave v. Grafts, 53 Cal. 135; Bowe v. Milh Go., 44 Minn. 460.; Glenn v. Priest, 48 Eed. 19; Norris v. Amos, 15 Ind. 365; Hax v. Leis, 1 Col. 187.)\\nTbe admissions and declarations of an administrator or trustee, made in bis individual capacity, are not admissible to bind tbe estate be represents. (Waterman v. Wallace, Fed. Case No. 17261; Thompson v. Brahe, 32 Ala. ;9*9; Ghurch v. Howard, 79 N. Y. 415; Lee v. Bank, 78 N. W. 692.) Admissions of stockholders do not bind a corporation. (2 Cook on Corporations, 726, citing many cases.)\\nTbe acts necessary to constitute adverse possession have always been dependent upon tbe character of tbe ground, whether it was wild or cultivated, in a settled community or elsewhere, and upon tbe particular use which might be made of it. In a country where everybody\\u2019s land is inclosed by fences one naturally does not get title by adverse possession without an inclosure, and where land is used for such a purpose that it is used every day in the year, one\\u2019s possession must be evidenced by daily acts, but the only use to which one puts a mining, camp is to prospect the same and extract mineral therefrom, and this is often suspended during some parts of the year and the physical acts of possession relate generally to a small part of such claim, viz., the workings thereon, shafts, tunnels, etc. (Rev. Stat. Utah, 2862, 2863; 2 Lindley on Mines, 688; R. S. U. S., 2332; Altoona, etc., Mining Go. v. Mining Go., 114 Cal. 105; Belk 'v. Meagher, 104 U. S. 279, 287; Harris v. Equator Mining Go., 8 Red. 863.)\\nRESPONDENT\\u2019S POINTS.\\nNotwithstanding all that is said, and the cases and authorities cited by plaintiff, we insist that the great weight of authority and reason will support the sufficiency of the notices of location in this case, and in connection with the evidences of the staking of the ground, constituted good and valid locations of each of the claims located as the Medway and the Hillside, and that the finding and conclusion of the court below upon these points should be affirmed. The established rules of construction of the acts of parties in the initiation of rights upon the public mineral lands, as well as in the various steps taken by the miner to perfect his location, are to be regarded with indulgence, and the notices required invariably receive at the hands of the court a liberal construction.. See section 381, 1 Lindley on Mines (2 Ed.), where this doctrine is fully stated, and is supported by many citations of authorities, amongst others quoted from in the text by the author being the case of Wells v. Davis, 22 Utah 322. At section 373 the same author lays down the doctrine as to what is a sufficient marking under the Federal law, to which we invite the attention of the court. (North Noonday'Mining Go. v. Orient Mining Go., 1> Fed. Rep. 5,22; Jupiter Mining Go. v. Bodie Oons. Mining Co., 11 Fed. 666; Garter v. Bacigalupi, 83 Cal. 187; \\u25a0Baton v. Noms, 131 Cal. -561; Brhardt v. Boaro) 113 TJ. S. 527; Hammer v. Gold'field Mining & Milling Go130 TJ. S. 291.)\\nSTATEMENT OE TACTS t\\nThis suit was brought to quiet title to four mining claims and to the conflict areas in the claims which are included within the exterior bound\\u00e1ries of two mining claims, the Medway and Hillside, for which the defendant had made application for patent. It appears from the evidence that the plaintiffs\\u2019 claims involved in the controversy are the Blackhawk No. 1 and Blackhawk No. 2, each of which was located on the 6th day of January, 1891; the Eclipse, located on the 1st day of January, 1889; and the Fraction, located on the 16th day of September, 1891. The defendants claims involved are the Medway and the Hillside mining claims, and each of them was located on the 7th day of January, 1888. The Eclipse mining claim covers substantially the same ground as the Hillside, and its discovery and initial point is within the limits of -the Hillside claim. The Blackhawk No. 2 covers nearly the whole of the Medway claim, and its discovery and initial point is within the boundaries of the Medway. The Blackhawk No. 1 conflicts partially with the Medway, and its discovery point is within the' exterior boundaries of the Last Chance mining claim, a claim that the evidence showed had been previously located and adjudicated to belong to Hugh Kilkenney, the predecessor in interest of the defendant. The Fraction mining claim conflicts with the Hillside. At the trial the court found the issues in favor of the defendant, as to the Medway mining claim, and found and held that both the Medway and Hillside claims had been properly located upon unoccupied mineral land, and their boundaries marked as re-, quired by law, but that the required work had not been done on the Hillside claim, and that, therefore, it had become forfeited to the United States; that the location of the Eclipse mining claim was illegal and void, because it was made within the exterior boundaries of the Hillside, before the for feiture of that claim; and that neither one of the parties to this controversy is entitled to the area embraced within the boundaries of the Hillside and Eclipse mining claims. A decree was entered accordingly, and thereupon the plaintiffs prosecuted this appeal.\\nGold Mining Co. v. Gold & Copper Co., 20 Utah 363, 58 Pac. 832; Wells v. Davis, 22 Utah 322, 62 Pac. 3; Wilson v. Triumph Mining Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718.\", \"word_count\": \"7718\", \"char_count\": \"43961\", \"text\": \"BARTCH, C. J.,\\nafter stating the facts, delivered the opinion of the court.\\nThe principal and decisive question presented on this appeal is whether the notices of location of the Medway and Hillside mining claims, considering the supplementary proof, were properly admitted in evidence over the objection by the appellants of uncertainty of description. The notice of the Medway reads:\\n\\\"Notice is hereby given that the undersigned having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, has located 1,500 feet in length by 600 feet in width on this the Medway lode, vein or deposit, bearing gold, silver and other precious metals, situated in Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follow, to-wit:\\n\\\"Commencing at discovery and running Y50 feet in a northeasterly direction, and 750 feet in a southwesterly direction and marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of center of same. The nearest known claim is the Hillside. The mining claim above described shall be known as the Medway.\\n\\\"Located this 7th day of January, 1888.\\n\\\"Name of locator, Hugh Bhlkenney, 1,500 feet.\\n\\\"Filed for record January 11, 1888, at 3 o'clock, p. m.\\n\\\"JeeeMiah Roby, Recorder.\\\"\\nThe notice of the Hillside reads:\\n\\\"Notice is hereby given that the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs arid regulations of this district, has located 1,500 feet in length by 600 feet in width on this Hillside lode, vein or deposit, bearing gold, silver and other precious metals, situated in the Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follows, to-wit:\\n\\\"Commencing at the discovery and claiming 300 feet on each side of the centre of the vein, together with all dips, spurs, angles and variations, running 750 feet in a southwesterly direction and 750 feet in a northeasterly direction from discovery and marked by laurful stakes on both ends and comers 1, 2, 3, and 4. The nearest known claim is the Wild Bill mine on the west. The mining claim above described shall be known as the Hillside mine.\\n\\\"Located this 7th day of January, 1888.\\n\\\"Name of locator, Hugh Kilkenney, 1,500 feet.\\n\\\"Riled for record January 11, 1888, at 3 o'clock, p. m.\\n\\\"Jeremiah Roby, Recorder.\\\"\\n.The objections urged, to these notices are that they are indefinite, do not describe any ground, and do not tip the claims to any natural monument or permanent object; and that they do not comply with the requirements of section 2324, Revised Statutes, United States (U. S. Comp. St. 1901, p.- 1426), which provides that such locations \\\"must be distinctly marked on the ground\\\" so that their \\\"boundaries can be readily traced,\\\" and requires that all records of mining claims shall contain, among other things, \\\"such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.\\\" We do not regard these objections as well founded. It will be observed that, while the notices are not artistically drawn, each one nevertheless shows a discovery made upon a vein or deposit bearing precious metals; the amount of ground claimed; the length of the claim, giving the distance in opposite directions from the discovery; that the claim was staked at both ends and at the corners in a lawful way; and refers to another claim as the one nearest to it. Each notice also contains the name of the claim, the signature of the locator, the date of location and of record, and the county and mining district where located. Then there is proof to show that the descriptions and marking of the boundaries indicated in each notice were true; that a stake and notice was posted up at each discovery, and that a stake three or four inches in diameter and four to four and a half feet high was marked and put up at each corner, except at the northeast corner of the Medway, where a stump was marked as the corner; that the stakes were driven into the ground at the respective corners and numbered as indicated in the notices; that they were reset from time to time and kept up; and that the surveys for patent were made covering the ground practically as originally located and staked. These notices, where the ground was actually marked as shown by the proof herein, although in some particulars indefinite and subject to criticism, were not calculated to mislead the public. Any prospector who appeared and read the notices could readily identify the ground embraced within the description. Such a notice -is a sufficient compliance with the statute, and when it substantially complies with the statute it is sufficient for record.\\nIn the location of a mining claim the notice or \\\"c\\u00e9rtificate is not required to show the precise boundaries of the claim as marked on the ground, but it is sufficient if it contains directions, which, taken in connection with such boundaries, will enable a person of reasonable intelligence to find the claim and trace the lines.\\\" (1 Lindley on Mines, sec. 381; Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.) Location notices of mining claims, being usually prepared by unlettered men, must not be held to technical accuracy, but must be construed with much liberality, else the main object of the law, which was not to wrest from the prospector the fruits resulting from honest toil and innumerable hardships, but to aid him in acquiring valuable rights in mining property, and to develop the mineral resources of the country, will be defeated. It is true the descriptions should bo as definite as the surrounding circumstances permit.\\n\\\"With just how much accuracy the description of a mining claim, in reference to a natural object or permanent monument, must be stated in the notice of location, is not set forth in the statute; and where, as in this case, the location was evidently made in good faith, we are not disposed to hold the locator to a very strict compliance with the law in respect to his location notice. If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient. Prospectors, as a rule, make no pretensions of scholarship or the art of composition, are neither surveyors nor lawyers; and if, in their notice of location, technical accuracy of expression were an absolute requirement, the object of the law, which doubtless is the encouragement and benefit of the miners, would in many cases be frustrated, and injustice would result, by the disturbing of possession after much hard labor performed and money in good faith expended. Therefore mere imperfections in the notice of location will not render it void. Courts have usually construed the statute respecting the location of mining claims with much liberality, and the sufficiency of the location, with reference to natural objects or permanent monuments, is simply a question of fact.\\\" (Gold Mining Co. v. Gold & Copper Co., 20 Utah 363, 58 Pac. 832; 1 Lindley on Mines, sec. 355; Wells v. Davis, 22 Utah 322, 62 Pac. 3; Wilson v. Triumph Min. Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718; North Noonday Min. Co. v. Orient Min. Co. [C. C.], 1 Fed. 522; Erhardt v. Boaro, 113 U. S. 52, 5 Sup. Ct. 560, 28 L. Ed. 1113.)\\nThe circumstances and conditions of the surrounding country may be, and, doubtless, in many instances are, such that stakes driven firmly into the ground will afford the best means to identify the claim and the discovery. In such cases such identification will be considered as a sufficient compliance with the statute. As said by the Supreme Court of the United States in Hammer v. Garfield Min. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964:\\n. \\\"There provisions, as appears on their face, are designed to secure a definite description \\u2014 one so plain that the claim can be readily ascertained. A reference to some natural object or permanent monument is named for that purpose. Of course, the section means, when such reference can be made. Mining lode claims are frequently found where there are no permanent monuments or natural objects other than rocks or neighboring hills. Stakes driven into the ground are in such cases the most certain means of identification.\\\" (Jupiter Min. Co. v. Bodie Con. Min. Co. [C. C.], 11 Fed. 666; Baton v. Norris, 131 Cal. 561, 63 Pac. 856.)\\nWe are of the opinion that the notices in question, under the circumstances, were sufficiently definite to comply with the law, and were properly admitted in evidence. Nor do we think the court erred in admitting in evidence, against the objection that it was not pleaded, the decree in favor of Kilkenny and against the plaintiff in a former action, which decree adjudged Kilkenny to be the owner of the Last Chance mining claim, which embraced within its exterior boundaries the discovery point of Blackhawk No. 2 claim. There is no doubt that, where a party to an action in equity relies upon a former adjudication as a bar to an action, such adjudication, to be of avail, must be pleaded; but that doctrine has no application here. In this case the controversy is over the conflict of the Blackhawk No. 2 with, the Medway claim, and this conflict was not involved in the former litigation. There only such portion of the Blackhawk No. 2 was involved as conflicted with the Last Chance claim, and that conflict was adjudicated in that case; and the Last Chance, which included within its boundaries the discovery point of the Blackhawk No. 2, was decreed to belong to Kilkenny. In this action a prior location of a valid claim, Blackhawk No. 2, was alleged by the plaintiffs. This was denied by the defendant, and its claim that the Medway was a valid location was set up and relied upon. Upon this issue thus raised the right to the conflict area was to be determined. The defendant, to maintain its position, had a right to resort to any legal proof which would show that the Blackhawk No. 2 was not a valid location, and hence could show by such proof that the discovery point of that claim was adjudicated to be within the boundaries of another prior, existing valid location or claim. For such purpose the judgment in question was admissible, because it constituted legal proof of the fact that the entire location of the Blackhawk Np. 2 claim, including that portion in conflict with the Medway claim, is invalid. It was a judgment in a suit where the opposing party herein was party plaintiff, and where the party defendant herein was in privity with the party defendant therein, and constituted merely proof that a certain mineral location was void. The decree was not, and could not, without proper plea, be offered for the purpose of showing that the matter in issue herein was res judicata. Nor could it be relied upon as res judicata of this controversy. In Glenn v. Priest (C. C,), 48 Fed. 19, Mr. Justice Thayer, referring to a Missouri case, where it was held that judgment might be offered in a subsequent case as evidence of a fact, though not pleaded, said:\\n\\\"It will also be observed from a careful examina-; tion of the case in question that, as the issues were made up, the judgment in all probability was properly admissible in evidence, even if it had been objected to, because it tended to contradict material facts stated in the petition. My conclusion is that under the Missouri Code a judgment must be specially pleaded before it can be admitted in evidence, when tbe purpose of offering it is merely to show that the matter in issue is res judicata.. If a judgment in a former suit between the parties tends to disprove material facts stated by the plaintiff in his petition, a different rule obtains.\\\" (Garton v. Botts, 73 Mo. 274; Krekeler v. Ritter, 62 N. Y. 372.)\\nNor do we think the court erred in holding that the appellants are not entitled to the Eclipse mining claim. The findings and decree as to that claim as well as to the others appear to be supported by competent proof.\\nThe remaining questions presented, but not herein discussed, we have carefully examined, and found no reversible error.\\nThe judgment of the court is affirmed, with eosts.\\nMcCARTY, J., concurs.\"}"
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+"{\"id\": \"8874741\", \"name\": \"DISY ALLEN, Appellant v. JOHN S. BARNES, as Administrator, etc., Respondent\", \"name_abbreviation\": \"Allen v. Barnes\", \"decision_date\": \"1886-06\", \"docket_number\": \"\", \"first_page\": \"100\", \"last_page\": \"107\", \"citations\": \"5 Utah 100\", \"volume\": \"5\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-11T00:13:54.667914+00:00\", \"provenance\": \"CAP\", \"judges\": \"Z\\u00e1NE, C. J., and BoeemaN, J., concurred.\", \"parties\": \"DISY ALLEN, Appellant v. JOHN S. BARNES, as Administrator, etc., Respondent.\", \"head_matter\": \"DISY ALLEN, Appellant v. JOHN S. BARNES, as Administrator, etc., Respondent.\\nConstruction op Wilt. \\u2014 Power to Administrate as Incidental thereto. \\u2014 Act of Congress, approved June 23, 1874, Section 3, gives to probate courts exclusive original jurisdiction of all matters pertaining to settlement of estates, but district courts may take cognizance of equitable suits for construction of wills, but when the will is construed, it is left to the probate court to execute, and district court will not proceed with administration.\\nId \\u2014 Discretion op Executors. \\u2014 A clause in a will stating that \\u201cit is my further desire that out of the proceeds of said estate, leaving same to the best judgment and discretion of said exeputors hereinafter named, to pay\\u201d certain sums per month to testator\\u2019s mother and aunt, gave to the administrator cum testamento annexo a reasonable discretion to fix the amount at what he deemed sufficient, to be paid out of any part of said estate in his hands.\\nAppeal from a judgment of the District Court of the Third District. The opinion states the facts.\\nMessrs. Williams & White for appellant.\\nMr. M. M. Kaighn for respondant.\", \"word_count\": \"2675\", \"char_count\": \"15256\", \"text\": \"Henderson, J.\\nThe complaint avers that Joseph M. Allen died December 23, 1880, leaving the following will: \\\"In the name of God, amen. I, Joseph Moroni Allen, of the city of Balt Lake, territory of Utah, being weak in body, but of sound and disposing mind, and not under restraint or the influence or representation of any person, do make, publish, and declare this last will and testament: First. I hereby revoke all former wills and testaments heretofore made by me, and do solemnly declare that this alone is my last will and testament. Secondly. I direct my executors, hereinafter mentioned, as soon as they have sufficient funds in their hands, to pay all my debts, of whatsoever kind and character. Third. I leave and devise to my beloved wife, Julia H. Allen, one-fourth of all my real estate, and devise and give the same to her during her life, and after her death the same shall go to my children, hereinafter mentioned, and to be divided in equal proportions among them, 'Share and share alike; and, if there be but one of said children surviving at the time of her death, then all of said property shall go to said surviving child. And I further give and bequeath to the said Julia H. Allen a one-fourth interest in all personal property belonging to me at the time of my death. Fourth. I devise and bequeath to my mother, Disy Allen, and my aunt, Bach el Allen, jointly, and during the life of the survivor, the house they now live in and occupy as a home; and at their death, or at the death of the survivor, then said house, or the proceeds thereof, however arising, to - be divided among my said children hereinafter mentioned, in equal proportions, share and share alike. And it is my further desire that out of the proceeds of said estate, leaving the same to the best judgment and discretion of said executors hereinafter mentioned, to pay unto my said mother, Disy Allen, the sum of twenty ($20) dollars during each and every month of her life, as an income and support for her, and the sum of fifteen ($15) dollars to be paid in like manner, each and every month, to my said aunt, Bachel Allen, during her life, as an income and support. Fifth. To my three children, Joseph Milton Allen, May Lisle Allen, and Gertrude Disy Allen, I give and devise all the rest, residue, and remainder of my real estate, of every name and nature whatsoever, owned by me at the time of my death; and I further give and bequeath tbe remainder of my personal property, owned by me at tbe time of my death, to my said three children, and that all of said property, both real and personal, or the proceeds thereof, be divided in equal proportions among them, share and share alike; and, should any of said children die during their minority, then his or her or their share shall go to the survivor or survivors, to be divided among them in equal proportions, share and share alike; and, should there be but one surviving child, then the share of the children shall go to the surviving child as if there had been no other children. Lastly, I hereby appoint my wife, the said Julia H. Allen, and George Sims, both of the city of Salt Lake and territory of Utah, executors of this, my last will and testament.\\\"\\nThe complaint further avers that plaintiff is the mother of said deceased, and the person named in the fourth paragraph of said will; that the Bachel Allen also named with her in said will has assigned all her interest and rights under said will to plaintiff; that said will was admitted to probate, and John S. Barnes appointed administrator by the probate court, the executors in said will having refused to accept the trust; that said Barnes accepted said trust and is administering said estate. The complaint further avers, in relation to the fourth paragraph of said will, that said administrator claims that by said will he has the discretion to determine the amount said estate ought to pay and can pay without a sale of real estate, and therefore refuses, and has failed to pay said legacies, while the plaintiff, and her sister, Bachel Allen, demands that said legacies should be paid in full, and denies that said administrator has any discretion whatever as to the amounts of said legacies while there are assets in his hands sufficient and liable to pay the said legacies; that said administrator now has, and has all the time since he became administrator had, ample assets of said estate in his hands to pay said legacies, and all demands required to be paid before said legacies. .\\nThe answer denies the construction of the will claimed by the plaintiff, and alleges, as to defendant's construction, \\\"that while said testator did bequeath a certain contingent sum to said two beneficiaries, which in no event should exceed twenty dollars per month to said plaintiff, and fifteen dollars per month to said Rachel Allen, that the same was payable only out of the net proceeds or income of said estate after all expenses, costs, and debts, and prior bequests and charges, had been fully paid and satisfied, and that the amount was then dependent upon the best judgment and discretion of the executors named, or of such other persons or person as should be charged with the execution of the will of said testator.\\\" The answer further alleges that the discretion vested by said will in the administrator has been properly exercised, and payments made out of the income of said estate, and that said plaintiff has for four years acquiesced in defendant's construction of said will, and that no complaint has been made to the probate court in relation thereto. The answer admits the other allegations of the complaint,\\nThe cause was tried in the district court, when the following findings of fact and conclusions of law thereon were found:\\n\\\"(1) That Joseph M. Allen died on December 23, 1880, in and a resident of Salt Lake county, Utah Territory, leaving a will bearing date February 27, 1880, which will was duly admitted to probate by the proper court, to-wit, the probate court in and for said Salt Lake county, on February 15, 1881.\\n\\\"(2) That the executors named in said will failed to qualify, and that defendant herein was, on February 15, 1881, duly appointed administrator with the will annexed of the estate of said decedent; that he duly qualified, and ever since has acted as such administrator.\\n\\\"(3) That by said will testator, among other things, made a bequest in favor of plaintiff and one Rachel Allen, in the following words, to-wit: 'And it is my further desire that out of the proceeds of said estate, leaving same to the best judgment and discretion of said executors hereinafter named, to pay unto my said mother, Disy Allen, the sum of twenty .dollars during each and every month of her life, as an income and support to ber, and tlie sum of fifteen dollars to be paid in like manner, eaclr and every month, to my said aunt, Bachel Allen, during her life, as an income and support.'\\n\\\"(4) That defendant, said administrator, claimed the right under said clause of said will to exercise his judgment and discretion as to the amount to be paid under said bequest, and up to and including the month of July, 1883, paid each and every month to said Disy Allen the sum of fourteen 29-100 dollars, and to said Rachel Allen the sum of ten 66-100 dollars; that thereafter, each and every month, he paid to said Disy Allen the sum of seventeen and 14-100 dollars, and said Rachel Allen the sum of twelve and 86-100 dollars, up to April 1, 1884, and has made no payments thereafter.\\n\\\"(5) That on the allowance so paid to them, and by assistance extended to them from other relatives, said beneficiaries Disy and Rachel Allen have been able to live comfortably, after their usual manner of life,\\n. \\\"(6) That the estate of decedent amounted to about $25,000, on which was indebtedness to the amount of about $3,000; that the income of the estate, after the indebtedness was paid, amounted per month, over and above taxes, insurance, and repairs, and other expenses, to from $100 to $120 per month; that the family of decedent, consisting of the widow and three minor children, were dependent upon it for support; and that said beneficiaries, neither of them, had, at the time of making the will, or has had since then, any estate, property, or income other than that provided in the will.\\n\\\"(7) That all the several allegations of the complaint, except as to the misconduct of the defendant and purport or construction of the will, are true.\\\"\\nCONCLUSIONS 03? LAW.\\n\\\"(1) That the word 'proceeds,' in that portion of said will hereinbefore quoted, should be construed to mean 'income;' that defendant, as administrator with will annexed, was clothed with a reasonable discretion as to the amounts to be paid under the will to said beneficiaries Ra chel and Disy Allen, and that the disputed portion of the will should be and is construed accordingly.\\n\\\"(2) That defendant has exercised his discretion in a reasonable manner, so far as payments were by him made.\\n\\\"(3) That defendant is entitled to judgment as prayed in his answer, and for his costs.\\\"\\nJudgment was entered pursuant to the findings, and from that judgment the plaintiff appeals to this court.\\nWe can only consider this as an equitable action to construe the terms of the will; the administration of the estate under the will must be left to the probate court. We wore urged on the argument to not only construe the contested provisions of the will, but to execute and direct piiyment. Section 3 of the act of Congress of June 23, 1874, (Comp. Laws Utah, 53), gives exclusive original jurisdiction'to the probate courts of all matters pertaining to the settlement of estates. The district courts, under the general equity powers conferred upon them, may take cognizance of equitable suits for the construction of doubtful provisions of a will, it being a well known subject of equitable jurisdiction, (3 Pom. Eq. Jur. c. 3, sections 3, 4; Bedf. Wills, 492); but, when the will is so construed, it only becomes the settled and adjudicated terms of the will, which is left to the probate court to execute, where the entire matters pertaining to the estate are pending, and where it can be executed with reference to the situation and condition of the entire estate.\\nThe question, then, before us is whether, by the will in question, the testator intended that his mother and aunt should be paid monthly, during their lives, the sums of 820 and 815, respectively, out of any property of which he should die seized, and without restriction or supervision by his executors; or whether the amounts to be paid to them were left to the discretion of his executors, not exceeding the sums above stated, and only out of the income of his estate. It is plain that the testator intended to commit to his executors some discretion in relation to the payments, and it is difficult to see wherein their discretion is to be exercised, except as to the sums to be paid. In. the paragraph of his will under consideration, he first makes an absolute bequest to his mother and aunt of the use of a house for a home during the life of the survivor of them. He then changes his language from that of absolute gift to the expression of a desire, leaving the same to the best judgment and discretion of his executors. It can hardly be presumed that the testator did not clearly understand the difference between such expressions. 2 Story, Eq. Jur. sec. 1069. The testator's intention is further made plain by stating the purpose and object of this provision of his will to be for the support of the beneficiaries. We think it plain that he intended to commit the whole matter to the discretion and judgment of his executors, but he fixes the standard by which the discretion is to be exercised. It is but fair to presitme, from these provisions of the will, that the testator meant to recognize his moral obligation to provide maintenance for his mother and aunt out of his estate, and to leave it to an intelligent discretion to provide such means as was necessary to that end, having in view their needs, their means of support from other sources, the contributions of others who might be under the same obligation as he, and to fix a limit to the amount which should be so paid, and which he probably deemed sufficient. The discretion thus left to the executors is not wholly arbitrary. If it is abused, no doubt any person interested would make application to the proper court, and correct and control it.\\nIn view of our opinion as to the discretion vested in the executors, we do not deem the construction of the word \\\"proceeds\\\" as very material, but we can hardly think that it was the intention of the testator to absolutely restrict the payments to the annual income. No doubt the executors in exercising their discretion should have reference to the condition of the estate, and the income from it, and should not go beyond the income, unless in their judgment, in order to carry out the objects intended to be provided for by the testator, there should be imperative necessity for it. We think that a decree should be entered in this court that the disputed portion of the will is construed to mean that the defendant, as administrator with the will annexed, is clotbed witb a reasonable discretion as to tbe amounts to be paid under said will to Disy Allen and Rachel Allen, and in bis discretion may be paid out of any part of said estate in bis bands. \\\"We do not mean to say that tbe executors can transfer or -sell real estate belonging to tbe estate, for the purpose o$ paying tbe beneficiaries, without application to and authority from tbe proper court.\\nTbe clause of the will under consideration was of somewhat doubtful meaning, and we cannot say that this suit for its construction was unnecessary, and, in view of tbe circumstances, we think that tbe costs should be divided between the estate and tbe plaintiff; and this cannot be more equitably done than by leaving each party to pay their own costs in both courts. The judgment should therefore be without costs to either party.\\nZ\\u00e1NE, C. J., and BoeemaN, J., concurred.\"}"
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+"{\"id\": \"8874891\", \"name\": \"PHYLLIS M. COOK, Appellant, v. GEORGE HIGLEY, Jr., and Another, Respondents\", \"name_abbreviation\": \"Cook v. HigLey\", \"decision_date\": \"1894-06-28\", \"docket_number\": \"No. 472\", \"first_page\": \"228\", \"last_page\": \"232\", \"citations\": \"10 Utah 228\", \"volume\": \"10\", \"reporter\": \"Utah Reports\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T19:35:03.429046+00:00\", \"provenance\": \"CAP\", \"judges\": \"Merritt, O. J., and Smith, J., concur.\", \"parties\": \"PHYLLIS M. COOK, Appellant, v. GEORGE HIGLEY, Jr., and Another, Respondents.\", \"head_matter\": \"PHYLLIS M. COOK, Appellant, v. GEORGE HIGLEY, Jr., and Another, Respondents.\\nHusband\\u2019s Conveyance op Homestead Without Wipe\\u2019s Consent. \\u20142 Comp. Laws 1888, \\u00a7 3429, subd. 11, provides that in case a debtor is the head of a family, a homestead to be selected by him shall be exempt from execution, but does not forbid the sale of the same by him. The husband can convey his homestead without the wife\\u2019s consent, subject only to her dower right on his death.\\n(No. 472.\\nDecided June 28, 1894.\\n37 P. R. 336.)\\nAppeal from the District Court of the Fourth Judicial District. Hon. James A. Miner, Judge.\\nAction by Phyllis M. Cook against Geoi\\u2019ge Higley, Jr., and another to recover possession of a homestead. The court sustained defendants\\u2019 demurrer, and plaintiff electing to stand by her complaint, judgment was entered, from which she appeals.\\nAffirmed.\\nMr. A. R. Heywood, for appellant.\\nMessrs. Evans & Rogers, for respondents.\", \"word_count\": \"1219\", \"char_count\": \"6990\", \"text\": \"Bartoh, J.\\nThe court below sustained a demurrer to the complaint in tbis case on the ground that it does not state facts sufficient to constitute a cause of action. The plaintiff elected to stand by her complaint, which was thereupon \\u2022dismissed, and the costs taxed against her. The only material question raised in the record by this appeal is whether, in a case where the husband conveys, by deed, premises occupied by himself and family as a homestead, without being joined in the conveyance by the wife, \\u2014 the same being against her will, \\u2014 the wife is entitled to the possession of, and to occupy as a home for herself and family, the premises thus conveyed, during the term of her life, as against the rights of the grantee of the husband.\\n'There are no homestead estates at common law. Such estates are created, and can exist only by statute. In this territory there is no separate and independent homestead law. The only statutory provision creating homestead .rights, and which is decisive of the rights of the plaintiff, is found in section 3429, subd. 11, Comp. Laws Utah 1888, and reads as follows: \\\"If the debtor be the head -of a family, there shall be a further exemption of a home.stead, to be selected by the debtor, consisting of lands, together with the appurtenances and improvements thereon, not exceeding in value the sum of one thousand dollars, for the judgment debtor, and the further sum of five hundred dollars for' his wife, and two hundred and fifty \\u2022dollars for each other member of his family. If the homestead selected by the debtor, is of greater value than is \\u2022exempted under this section, it shall be optional with the judgment debtor to permit the same to be partitioned or to be sold, and to receive in money the value of the homestead, as provided in this section. If the debtor so elect, the homestead may he sold, as other lands are sold, on execution, and, after paying the debtor the value of the homestead, the balance of the money shall be applied upon tbe judgment,\\\" \\u2014 and tben provides bow tbe sale may be effected under tbe execution, and ior tbe disposition of tbe money, etc.\\nAn examination of tbis statute reveals no intent on tbe part of tbe legislature to restrain tbe debtor from alienating tbe homestead. It merely provides that if be be the bead of a family this homestead shall be protected by exemption from execution, to tbe extent therein set forth. This right of tbe debtor thus to preserve a home for bis family is inviolate and absolute! If, however, be chooses to sell and abandon it, there appears to be no provision of law which will prevent him from so doing, even if tbe wife refuse to join him in the conveyance. Tbe statute law of tbis territory expressly provides that all property acquired and owned by either husband or wife may be held, managed, controlled, and in any manner disposed of by tbe one so owning or acquiring, without any limitation or restriction by reason of marriage. Comp. Laws Utah 1888, \\u00a7 2528. Tbe general purpose of ibe statute does-not appear to be tbe creation of an estate which cannot be conveyed without tbe concurrence of those who are entitled to enjoy its benefits, but to preserve it for occupation by tbe debtor and bis family, as against his creditors. Therefore, independently of tbe husband, who is tbe head of tbe family, tbe wife has no claim upon tbe homestead, so long as be is living, except her right of dower, unless it be her separate property. Whatever claim she has arises because of the marital relation, and can only be enforced with the concurrence of the husband. The law affords the protection to him, and, through him, to the wife and family. It does not interfere with the natural dependence of the wife upon the husband. As she is bound to live with him, under her marital obligations, so she is bound to accompany him when he abandons the homestead, and selects another place of residence. His home is her home, and there is no obligation which compels him to reside permanently in one place; nor should there be such an obligation, for the best interests of himself and family may require an abandonment of the homestead to promote the health and comfort of his family, or the education oi his children.\\nDoubtless, the privilege thus conferred upon the husband may in some cases become the subject of abuse; but. the wife takes that risk when she enters into the marriage' relation, and assumes her dependent position, which is-, essential to the peace and happiness of the family, and to the well-being of society. The law protects the actual, not the former, homestead; and therefore, when the husband abandons it, and permanently changes his place of residence, the wife has no claim for possession which she can enforce against the grantee of the husband, in the absence of any statute restraining its alienation. Such restraint is in derogation of the general policy of the law, which encourages rather than abridges the right of alienation, and will operate and have effect so far only as is determined by the legislature. Tied. Real Prop. \\u00a7 158; Wap. Homest. & Ex. p. 43, \\u00a7 9; Thomp. Homest. & Ex. \\u00a7 2; Finley v. McConnell, 60 Ill. 259; Guiod v. Guiod, 14 Cal. 506; Knudsen v. Hannberg, 8 Utah, 203, 30 Pac. 749.\\nIn this case it appears from the record that the title to the premises in controversy was in Thomas Cook, the husband of the plaintiff. He sold the land to the defendant Higley without the knowledge or consent of his wife. Higley then went into possession, and, so far as appears, from the record, without objection on the part of the vendor, who, it appears, quit the premises. While, under these circumstances, the plaintiff still retains her right of' dower in the land, which will accrue at his death, yet we are of the opinion that she has no right of possession therein which will entitle her to recover in this action- The demurrer, therefore, was properly sustained, her husband being still living. There appears to be no error in the record. The judgment is affirmed.\\nMerritt, O. J., and Smith, J., concur.\"}"
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+"{\"id\": \"8896846\", \"name\": \"Paul C. BURKE, Petitioner, v. Honorable Leslie LEWIS, Respondent. The Doctors' Company, G. Gregory Drezga, M.D., Heidi Judd, personally as the natural parent and guardian of Athan Montgomery for and on behalf of Athan Montgomery, Real Parties In Interest\", \"name_abbreviation\": \"Burke v. Lewis\", \"decision_date\": \"2005-07-12\", \"docket_number\": \"No. 20040500\", \"first_page\": \"533\", \"last_page\": \"543\", \"citations\": \"122 P.3d 533\", \"volume\": \"122\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T23:46:57.072925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\\u00b6 40 Chief Justice DURHAM, Associate Chief Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Justice DURRANT\\u2019s opinion.\", \"parties\": \"Paul C. BURKE, Petitioner, v. Honorable Leslie LEWIS, Respondent. The Doctors\\u2019 Company, G. Gregory Drezga, M.D., Heidi Judd, personally as the natural parent and guardian of Athan Montgomery for and on behalf of Athan Montgomery, Real Parties In Interest.\", \"head_matter\": \"2005 UT 44\\nPaul C. BURKE, Petitioner, v. Honorable Leslie LEWIS, Respondent. The Doctors\\u2019 Company, G. Gregory Drezga, M.D., Heidi Judd, personally as the natural parent and guardian of Athan Montgomery for and on behalf of Athan Montgomery, Real Parties In Interest.\\nNo. 20040500.\\nSupreme Court of Utah.\\nJuly 12, 2005.\\nPaul C. Burke, Salt Lake City, for petitioner and real-party-in-interest.\\nG. Gregory Drezga, M.D. Brent M. Johnson, Salt Lake City, for respondent.\\nJaryl L. Reneher, Vaun B. Hall, Salt Lake City, for real-party-in-interest The Doctors\\u2019 Company.\\nJames W. McConkie, Bradley H. Parker, Jonathon T. Tichy, Salt Lake City, for real-party-in-interest Heidi Judd.\", \"word_count\": \"6571\", \"char_count\": \"41827\", \"text\": \"DURRANT, Justice:\\n\\u00b6 1 In addressing this petition for extraordinary relief, we must determine whether a district court may, without express authorization by statute or rule, appropriately appoint counsel for an absent, nonindigent civil litigant. We conclude that, in this case, the district court operated within the bounds of its discretion when it ordered such an appointment. This conclusion is based upon our determination that a court's inherent power to appoint counsel is not limited to situations involving indigency and our decision that, despite ethical concerns raised by the litigant's absence, the appointed attorney's good-faith compliance with the appointment order will not constitute a violation of the rules of professional conduct.\\nBACKGROUND\\n\\u00b62 Athan Montgomery suffered serious injuries at the time of his birth, including paralysis and brain damage, as the result of a botched forceps delivery performed by Dr. Gregory Drezga. Heidi Judd, as the parent and guardian of Montgomery, subsequently filed a medical malpractice suit against Drez-ga on Montgomery's behalf, ultimately obtaining a jury award of nearly $2.3 million.\\n\\u00b6 3 Although the exact timing of his departure is uncertain, Drezga apparently disappeared from Utah soon after Montgomery's birth, but before the malpractice suit was filed against him. Despite Drezga's absence, The Doctors' Company (\\\"TDC\\\"), Drezga's malpractice insurer, hired counsel for Drezga and prepared to mount a defense against Judd's malpractice claim.\\n\\u00b64 However, before trial commenced in the malpractice action, TDC filed a separate action against Drezga, seeking a declaration that TDC had no duty to defend Drezga in the malpractice suit because Drezga had failed to comply with his contractual duty to cooperate in his own defense. TDC named Judd as a codefendant in the declaratory action, but asserted no separate claims against Judd.\\n\\u00b6 5 After uncovering documentation indicating that Drezga may have omitted material information in his application for insurance, TDC amended its complaint in the declaratory action, seeking retroactive invalidation of the insurance contract. Although TDC received the district court's permission to serve the initial complaint by publication, service of the amended complaint was initially accepted by David Slagle, the attorney representing Drezga in the malpractice action. However, Slagle subsequently sent a letter to the district court, expressing his belief that he could not properly accept service on behalf of Drezga and purporting to withdraw his acceptance of service. While concerns about the effectiveness of service lingered in the background, TDC pursued its new legal theory, arguing in a summary judgment motion that the district court should declare the insurance contract invalid as a matter of law.\\n\\u00b6 6 Judd, no doubt realizing that a retroactive invalidation of Drezga's malpractice insurance policy would effectively preclude the possibility of collecting any judgment awarded in the malpractice action, successfully opposed TDC's summary judgment motion. However, when TDC subsequently renewed its earlier request for a default judgment against Drezga, citing his failure to appear in the declaratory action, Judd filed a motion asking the court to appoint counsel to represent Drezga's interests in the case.\\n\\u00b6 7 For over two years, Judd and TDC argued over the propriety of appointing counsel for Drezga. TDC contended that any attorney undertaking representation of Drezga would necessarily violate the Utah Rules of Professional Conduct because no lawyer-client relationship can be formed with an absent, incommunicado, individual and the appointed attorney would be unable to comply with communication obligations imposed by those rules. According to TDC, the ethical problems inherent in commencing representation of an absent client rendered inappropriate any attempt to appoint counsel for Drezga. Judd and TDC supplied the district court with opinions from four individuals, all knowledgeable in matters of legal ethics, who addressed the potential ethical quandaries an appointed attorney would face in undertaking representation of Drezga. Two of those individuals concluded that representation of Drezga would be ethical, while two reached the opposite conclusion.\\n\\u00b6 8 After allowing extensive briefing, and after considering the countervailing arguments raised by TDC and Judd, the district court appointed the current petitioner, Paul C. Burke, to represent Drezga. Burke sought appellate review of the appointment order, but his appeal was dismissed on procedural grounds by the court of appeals. Citing his inability to gain speedy review of the appointment order through normal appellate channels, Burke filed the current Petition for Extraordinary Relief pursuant to rule 65B of the Utah Rules of Civil Procedure, requesting that we review the district court's order of appointment. We have jurisdiction pursuant to Utah Code section 78-2-2(2) (2002).\\nSTANDARD OF REVIEW\\n\\u00b6 9 Our rules of civil procedure provide that, \\\"[w]here no other plain, speedy and adequate remedy is available, a person may petition the court for extraordinary relief.\\\" Utah R. Civ: P. 65B(a). Extraordinary relief may be granted if, among other grounds detailed in rule 65B, the petitioner can establish that a lower court \\\"exceeded its jurisdiction or abused its discretion.\\\" Id. 65B(d)(2)(A).\\n\\u00b6 10 In the present ease, no party contends that the district court acted beyond the bounds of its jurisdiction by issuing the appointment order. Rather, the issue in this ease, properly framed, is whether the district court abused its discretion by choosing to wield its appointment power under the circumstances. See, e.g., Hutchings v. State, 2003 UT 52, \\u00b6 20, 84 P.3d 1150 (appointment of counsel in civil postconviction relief context is left to the discretion of the district court); State v. Arguelles, 2003 UT 1, \\u00b6 83, 63 P.3d 731 (mentioning courts' discretion to appoint amicus counsel); see also Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.2004) (appointment of counsel for an indigent prisoner in a civil action is a matter left to the discretion of the district, court). Consequently, we will review the district court's action only to determine whether the court abused its discretion by appointing Burke.\\n\\u00b6 11 We note that the parties disagree as to whether an abuse of discretion must be particularly egregious before extraordinary relief becomes appropriate. Interpreting our prior decisions addressing petitions for extraordinary relief, the Utah Court of Appeals has held that \\\" 'abuse of discretion' for [extraordinary writs] must be much more blatant than the garden variety 'abuse of discretion' featured in routine appellate review.\\\" State v. Stirba 972 P.2d 918, 922 (Utah Ct.App.1998). TDC argues, however, that our case law is properly read as creating two distinct abuse of discretion standards of review variously applicable to petitions for extraordinary relief, a garden variety standard and a gross and flagrant standard. Under this approach, when utilizing the garden variety abuse of discretion standard, we will find that discretion has been abused if a district court'takes any action beyond the sphere of its discretion. In contrast, when utilizing a gross and flagrant abuse of discretion standard, we will find that discretion has been abused only if a district court greatly exceeds the limits of its discretion. As a result, when utilizing the gross and flagrant standard, some actions exceeding the bounds of discretion will go uncorrected.\\n\\u00b6 12 TDC argues that our prior decisions do not hold that a gross and flagrant abuse of discretion standard should be used in every situation involving a petition for extraordinary relief. Rather, according to TDC, the gross and flagrant abuse of discretion standard is applicable only in situations where the legislature has abrogated the right to pursue normal appellate review. It is unclear whether TDC's assertion is accurate. Compare Kawamoto v. Fratto, 2000 UT 6, \\u00b6 7, 994 P.2d 187 (arguably utilizing a garden variety abuse of discretion standard even though a statutory bar on appeals was present), with Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683-84 (Utah 1995) (utilizing a gross and flagrant abuse of discretion standard when a statutory prohibition against appellate review was present). See also Panos v. Third Judicial Dist. Court, 2004 UT 87, \\u00b6 7, 103 P.3d 695 (identifying concern about the appropriateness of the review standard utilized in Kawamoto).\\n\\u00b6 13 According to TDC, we applied the gross and flagrant abuse standard in Renn not simply because extraordinary relief was sought, but due to our concern that use of the garden variety abuse of discretion standard in such situations would allow parties to essentially circumvent statutory limitations on appellate review. Therefore, TDC argues, when no statutory abrogation of the right to seek appellate review exists, the garden variety abuse of discretion standard should govern.\\n\\u00b6 14 We acknowledge and appreciate the parties' arguments relative to the appropriate standard of review. However, in this case, we have no need to resolve the lingering uncertainty as to the proper standard to apply in the extraordinary writ context because we conclude that the district court acted within the bounds of its discretion. Our determination that there was no abuse of discretion makes inescapable the conclusion that the district court did not grossly and flagrantly abuse its discretion.\\n\\u00b6 15 In undertaking our review, we grant no deference to the district court's legal conclusions. Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1019 (Utah 1995); see also Stirba, 972 P.2d at 920 (\\\"[We limit our review of Judge Stirba's actions to deciding whether she has regularly exercised her authority, granting] no deference to her interpretation and application of [statutory law].\\\"). Additionally, any factual findings serving as a predicate for the district court's actions will be disturbed only if they are clearly erroneous. See Utah R. Civ. P. 52(a). Having explained the appropriate standard of review, we now turn to our analysis of the issues raised in Burke's petition.\\nANALYSIS\\n\\u00b6 16 The issue in this case is whether a district court may, without express authorization by statute or rule, appropriately appoint counsel for an absent, nonindigent civil litigant. No party has referred us to any case in which the propriety of such an appointment has been analyzed. We too have been unable to locate any authority directly on point. Although such an appointment is cer tainly novel, that reality does not necessarily dictate the outcome of the present controversy. See Flynn v. Hubbard, 782 F.2d 1084, 1087 (1st Cir.1986) (stating that the lack of any ease law addressing the propriety of a specific action does not foreclose a determination that the action is appropriate). There is, after all, a critical distinction between undertaking an action in conflict with precedent and undertaking an unprecedented action. That said, the absence of ease law addressing an appointment of this kind indicates that a careful analysis of the scope and nature of the appointment power is necessary to determine whether the district court abused its discretion by exercising its appointment authority in the present situation.\\n\\u00b6 17 TDC argues that we should conclude that the district court abused its discretion because (1) it is simply improper for a court to appoint an attorney for a nonindigent civil litigant, and (2) a court cannot order an attorney to represent a client when that representation will necessarily result in a violation of the Utah Rules of Professional Conduct. We address each of these grounds in turn.\\nI. APPOINTMENT OF COUNSEL FOR A NONINDIGENT CIVIL LITIGANT\\n\\u00b6 18 It appears from the record that the district court's decision to appoint counsel rested on two distinct grounds: (1) the district court's conclusion that our opinion in Chatterton v. Walker, 938 P.2d 255 (Utah 1997), requires insurance companies to provide or finance independent representation of their insureds when an adverse litigation relationship exists between insurer and insured, and (2) the inherent authority of courts to appoint counsel to ensure that the interests of justice are adequately served. We address each justification in turn.\\nA The Applicability of Chatterton v. Walker\\n\\u00b6 19 In issuing its appointment order, the district court accepted, at least to some degree, Judd's contention below that our decision in Chatterton requires TDC to provide or finance independent counsel for Drezga in the declaratory action. Chatterton involved a suit against an uninsured motorist filed by an individual who sustained damages in an automobile accident. Id. at 256. The uninsured motorist had apparently left the state and was therefore served by publication. Id. at 256-57. The plaintiffs insurance company sought leave to intervene in the action, claiming that a judgment against the uninsured motorist would render it liable to the plaintiff under the uninsured motorist provision of the insurance contract. Id. After intervention was granted, the insurance company answered the plaintiffs complaint and asserted that the plaintiff, its own insured, was partially liable for the accident due to malfunctioning brake lights. Id. at 257. In other words, in Chatterton, the insurance company took a position adverse to its insured on the very subject upon which it had a contractual duty to defend its insured, specifically, the insured's liability for the accident. To remedy the conflict created by the insurance company's intervention, we held that the insurance company could be required to provide or finance independent representation of the insured. Id. at 262. However, we went on to state that \\\"[t]he provision of counsel or reimbursement of expenses should be directly related to litigation of the issue of the uninsured motorist's negligence and the damages resulting from that negligence and should not implicate collateral issues relating to the insurer's intervention.\\\" Id.\\n\\u00b6 20 TDC argues that our holding in Chatterton is limited to those situations where an insurance company is adverse to its insured as to an issue implicating the insurance company's contractual duty to defend the in sured, a situation unlike the present ease. We agree.\\n\\u00b621 The present ease presents a type of conflict entirely different from that at issue in Chatterton. Unlike the situation in Chatterton, TDC's efforts to declare the insurance contract void do not necessarily implicate a contractual duty on the part of TDC to defend Drezga in the declaratory action. In other words, in the declaratory action, the insurer is not necessarily playing the role of accuser and defender simultaneously. Rather, the dispute is centered on whether insurance coverage even exists. Consequently, we conclude that Chatterton is not directly applicable to the present situation and neither meaningfully supports nor undermines the appointment decision made by the district court.\\n\\u00b6 22 Judd, in her brief before this court, acknowledges as much, referring to Chatterton as a \\\"red herring\\\" and relying primarily on the district court's inherent appointment power in advocating the propriety of Burke's appointment. Consistent with Judd's current argument, the record reveals that the district court did not rely solely on Chatterton when issuing the appointment order. For example, when denying TDC's request that the appointment order be reconsidered, the district court stated that \\\"[t]he Court is confident that fair play and the interest of justice, as well as the legal reasons set forth in the Court's prior opinions, dictate that counsel be appointed.\\\" (Emphasis added.) Because we conclude that Chatterton has little, if any, application to the present controversy, we now examine whether the district court's order can be justified as an exercise of the court's inherent appointment power.\\nB. The Inherent Appointment Power\\n\\u00b6 23 Our case law has long acknowledged that courts possess inherent powers to ensure the pursuit of a just process and result. For example, in Peterson v. Evans, we stated that \\\"it has always been held, regardless of express statutory authority, that courts of general jurisdiction have the inherent power to make and enforce all necessary rules and orders calculated to enforce the orderly conduct of their business and secure justice between parties litigant.\\\" 55 Utah 505, 188 P. 152, 153 (1920). That language is in accord with the contemporaneous conclusion of the United States Supreme Court in Ex parte Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 64 L.Ed. 919 (1920), that \\\"[cjourts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.\\\" See also id. at 313, 40 S.Ct. 543 (stating that courts possess the authority to seek aid in carrying out judicial duties and that \\\"[wjhether such aid shall be sought is ordinarily within the discretion of the trial judge\\\"); Anderson v. Dunn, 19 U.S.(6 Wheat) 204, 227, 5 L.Ed. 242 (1821) (\\\"[All] Courts of justice are universally acknowledged to be vested, by their very creation, with the power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates and . to preserve themselves and their officers from the approach and insults of pollution.\\\"). The principle represented by the above-quoted language has been repeatedly reaffirmed by this court. See, e.g., Chen v. Stewart, 2004 UT 82, \\u00b6 39, 100 P.3d 1177 (\\\"Defendants erroneously assume that the sole source of the court's power is rule 53 of the Utah Rules of Civil Procedure. However, . the trial court has broad equitable power....\\\"); Griffith v. Griffith, 1999 UT 78, \\u00b613, 985 P.2d 255 (\\\" 'It is undoubtedly true that courts of general and superior jurisdiction possess certain inherent powers not derived from any statute. Among these are the power to . direct and control its officers, including attorneys as such .'\\\" (quoting In re Evans, 42 Utah 282,130 P. 217, 224-25 (1913))).\\n\\u00b624 Although its analysis is centered on the federal justice system, Bothwell v. Republic Tobacco Co., 912 F.Supp. 1221 (D.Neb.1995), provides a helpful and thorough examination of the inherent authority possessed by courts and the manner in which that general authority relates specifically to the appointment power. The Bothwell court commences its analysis by outlining three separate categories of inherent judicial authority: (1) powers necessary to maintain independence from other branches of government, (2) powers necessary to exercise all other vested powers, and (3) powers to ensure \\\" 'the pursuit of a just result.' \\\" Id. at 1226 (quoting Eash v. Riggins Trucking Inc., 757 F.2d 557, 563 (3d Cir.1985)). After identifying the three general categories of inherent authority possessed by courts, the Bothwell court concluded that, although the power to appoint counsel falls most readily into the third category, the appointment power actually furthers all of the functions covered by the three identified categories. Id. at 1227. Having so concluded, the Both-well court then made the broad pronouncement that, while there may not be a constitutional right to counsel in the context of a civil dispute, \\\"counsel nevertheless may be necessary in a particular civil proceeding to ensure fairness and justice in the proceeding and to bring about a fair and just outcome.\\\" Id. (citing Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir.1983)); see also Travelers Indent. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex.1996) (\\\"[I]n some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant.\\\"); Cache County v. Lauritzen, 810 P.2d 494, 498 (Utah Ct.App.1991) (recognizing \\\"the inherent authority of courts to appoint counsel when the need arises\\\").\\n\\u00b625 TDC correctly points out that the majority of decisions discussing the propriety of appointment of counsel in the civil context expressly mention indigency as a primary factor justifying such an appointment. In fact, even those cases that do not expressly mention indigency when commenting on the scope of the appointment power implicitly rely on indigency as a key factor justifying the appointment of counsel. See id. (citing Wash. County v. Day, 22 Utah 2d 6, 447 P.2d 189, 191 (1968) (discussing the inherent appointment power and strongly implying that indigency is a critical factor in appointment decisions)). However, we are unaware of any authority that circumscribes the appointment power such that it can only operate to remedy the obvious inequities present when an indigent civil litigant seeks access to the courts. Significantly, the language courts use when discussing the inherent appointment authority is broadly cast and typically unadorned with equivocations or limitations, evincing a recognition that the existence of a broad, necessarily amorphous power is essential to the effective pursuit of the judicial obligation to provide justice. See, e.g., Bothwell, 912 F.Supp. at 1227 (\\\"[Cjounsel . may be necessary in a particular civil proceeding to ensure fairness and justice in the proceeding and to bring about a fair and just outcome.\\\"); Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex.2003) (stating that the Texas Supreme Court has \\\"not addressed any limits to the courts' discretionary authority to appoint counsel\\\" other than holding that appointment is acceptable when \\\"exceptional circumstances exist\\\"); Lauritzen, 810 P.2d at 498 (counsel can be appointed \\\"when the need arises\\\"); cf. Eash, 757 F.2d at 563 (stating that inherent judicial powers derived from \\\"necessity\\\" are \\\"necessary only in the sense of being highly useful in the pursuit of a just result\\\"). We have been referred to no language, and we have discovered none, that purports to identify or set limits to the appointment authority implicated here; we are certainly unaware of any language expressing the position that courts lack appointment power until the possibility of indigency is raised. See Eash, 757 F.2d at 561 (the concept of inherent judicial powers \\\"has been described as nebulous and its bounds as 'shadowy1 \\\").\\n\\u00b6 26 Given' the above discussion, we conclude that appointment of counsel for a non-indigent civil litigant is not excluded per se from the sphere of a district court's authority. Even so, TDC and Burke still question whether the appointment of counsel for an absent litigant is acceptable because, they argue, appointed counsel will necessarily violate the Utah Rules of Professional Conduct simply by complying with the appointment order. We do not discount the gravity of such a question. It is of paramount impor tance that judges wield their appointment power wisely and judiciously and that judges avoid leading officers of the court down a path that runs counter to ethical principles.\\n\\u00b6 27 However, unlike TDC, we believe that Burke is able to obey the district court's appointment order without running afoul of the Utah Rules of Professional Conduct. For example, although we recognize it is a remote possibility, Burke may be able to locate Drezga and assume normal lawyer-client relations, which would dissipate all of the concerns raised by both Burke and TDC. Failing that outcome, we are nevertheless of the opinion that the rules of professional conduct are flexible enough to allow Burke to serve Drezga's interests in the most effective manner permitted by the unusual circumstances of this case. The reasoning behind this conclusion is outlined below.\\nII. COMPLIANCE WITH THE APPOINTMENT ORDER DOES NOT NECESSITATE A VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT\\n\\u00b6 28 Perhaps the overarching concern prompting the present petition is Burke's understandable unease with the potential ethical ramifications implicit in representing an absent individual. In this regard, Burke questions whether the district court, driven by its \\\"equitable instincts,\\\" may have inadvertently compelled him to undertake a representation that is incompatible with the Utah Rules of Professional Conduct. Because \\\"[t]his court . has a special interest in the administration of the Rules of Professional Conduct,\\\" Spmtley v. State Farm Mut. Auto. Ins. Co., 2003 UT 39, \\u00b6 8, 78 P.3d 603, we accept Burke's invitation to address the ethical implications of his appointment.\\n\\u00b6 29 Initially, we note that the Utah Rules of Professional Conduct are \\\"rules of reason . [that] should be interpreted with reference to the purpose of the legal representation and of the law itself.\\\" Utah R. Profl Conduct Scope. Flexibility in the application of the rules is necessary, as no set of rules or guidelines can \\\"exhaust the moral and ethical considerations that should inform a lawyer.\\\" Id. As the rules correctly point out, \\\"no worthwhile human activity can be completely defined by legal rules.\\\" Id. As a result, \\\"[t]he Rules simply provide a framework for the ethical practice of law.\\\" Id. The principle that the rules of professional conduct should be applied in a manner reasonable under the circumstances is of special importance here, as there is no indication that the drafters of the rules contemplated the ethical implications of representing an absent client.\\n\\u00b6 30 In fact, it is fair to say that the rules generally operate on the assumption that clients will be able and willing to actively participate in their representation. Building upon that assumption, the Utah Rules of Professional Conduct contain multiple provisions that impose an ethical duty on the part of attorneys to consult and communicate with their clients. See, e.g., Utah R. Profl Conduct 1.2 (\\\"A lawyer shall abide by a client's decisions concerning the objectives of representation . and shall consult with the client as to the means by which they are to be pursued.\\\"); id. 1.4 (\\\"A lawyer shall keep a client reasonably informed about the status of a matter[.] . A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.\\\").\\n\\u00b6 31 TDC argues that Burke cannot represent Drezga without violating the rules that require lawyers to communicate with their clients and, therefore, that any representation under the circumstances is contrary to the rules of professional conduct. However, just because representation of Drezga will not neatly accord with the general assumptions underlying the communication requirements contained in the rules of professional conduct, it does not necessarily follow that the rules prohibit the representation entirely. Such an unyielding application of the rules runs counter to the principle that the rules of professional conduct are rules of reason to be applied to myriad factual settings in a flexible fashion. See Restatement (Third) of The Law Governing Lawyers \\u00a7 20 cmt. c. (2000) (\\\"[A] standard of reasonableness under the circumstances determines the appropriate measure of consultation.\\\"). In fact, the principle that only reasonable communication un der the circumstances is required allowed TDC to ethically proceed in its defense of Drezga in the underlying malpractice action. It seems clear that the communication rules were not followed to the letter during the course of the malpractice litigation, but no party has contended that representing Drez-ga in the malpractice action was unethical for that reason.\\n\\u00b632 TDC argues, however, that there is more at stake in the present situation than a mere inability to keep Drezga informed about the status of his case. Specifically, TDC contends that representation of Drezga is inappropriate because a lawyer-client relationship has not been consensually formed between Burke and Drezga. According to TDC, Drezga, by securing malpractice insurance, consented to any representation necessitated by the commencement of a malpractice suit. TDC argues that Drezga has not supplied any comparable form of consent in the present action, preventing the formation of a lawyer-client relationship for the purposes of its suit against Drezga. The lack of that relationship, according to TDC, is what truly distinguishes the representation of Drezga in the malpractice action from the-representation of Drezga in the current declaratory action, making the former ethical and the latter unethical.\\n\\u00b6 33 TDC's concerns are undoubtedly legitimate. In fact, the ethical anxiety caused by the lack of express consent to the representation, coupled with the inability to communicate with an absent litigant, prompted the Utah State Bar Ethics Advisory Opinion Committee (\\\"Ethics Advisory Committee\\\") to recently issue an advisory opinion concluding that initiating representation of an absent client would be contrary to the Utah Rules of Professional Conduct. See Utah State Bar Ethics Advisory Opinion Committee, Op. 04-01A (Dec. 2, 2004) (replacing and superceding Op. 04-01 (Mar. 29, 2004)). The advisory opinion addressed a situation in which an employer asked its attorney to undertake representation of its absent former employee in order to avoid the entry of a default judgment against the employee that could potentially be used in later proceedings against the employer. Although the analysis conducted by the Ethics Advisory Committee is thorough and illuminating, the fact scenario it addresses is distinct from that in the current ease, in which a court has issued an order appointing counsel for the absent litigant. As discussed below, the presence of a court order nullifies the primary concern driving the Ethics Advisory Committee's analysis in Opinion 04-01A, the 'absence of a lawyer-client relationship.\\n\\u00b6 34 It is well established that the lawyer-client relationship is essentially one of agency and cannot be established without either the express or implied consent of the client. See Margulies by Margulies v. Upchurch, 696 P.2d 1195, 1200 (Utah 1985); Restatement (Third) of The Law Governing Lawyers \\u00a7 14. Nevertheless, there are situations in which a \\\"nonconsensual\\\" lawyer-client relationship can be formed. See Restatement (Third) The Law Governing Lawyers \\u00a7 14 cmt. g. According to the Restatement, a lawyer-client relationship arises when \\\"a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person\\\" and the lawyer either manifests consent or fails to manifest lack of consent such \\\"that the person reasonably relies on the lawyer to provide the services,\\\" or when \\\"a tribunal with power to do so appoints the lawyer to provide the services.\\\" Id.; see also id. emt. g. (\\\"When a court appoints a lawyer to represent a person, that person's consent may ordinarily be assumed absent the person's rejection of the lawyer's services.\\\").\\n\\u00b6 35 As previously discussed, we conclude that the district court does possess the authority to appoint Burke to represent Drez-ga's interests in the declaratory action. The order of appointment itself serves as an official determination that Drezga's consent to the representation may be properly implied. However, TDC argues emphatically that Drezga's consent cannot be implied, as no one knows whether Drezga would desire to defend himself against the declaratory judgment action or whether he would prefer to allow TDC to obtain a default judgment. However, the district court has expressed its concern that issuing a default judgment in this case may not be appropriate, as litigation has proceeded and TDC's motion for summary judgment has already been denied. If the possibility of a default judgment is removed and a trial on the merits of TDC's claim is unavoidable, it seems beyond contention that Drezga would desire a vigorous defense to be mounted on his behalf. In fact, even if the entry of a default judgment remains a possibility, an issue upon which we express no opinion, we cannot say that the district court unreasonably concluded that Drezga would desire to defend himself against TDC's claims. TDC argues that a default judgment may be more advantageous to Drezga than a loss on the merits because a loss on the merits could negatively affect Drezga's ability to gain a medical license in another state. However, as the district court noted, there is sound reason to believe that Drezga would desire his malpractice insurance policy to remain in place, especially given the significant liability he now faces.\\n\\u00b636 Given the presence of a court order creating a nonconsensual lawyer-client relationship, we conclude that Burke can defend Drezga in the declaratory action without violating the Utah Rules of Professional Conduct. We recognize that additional ethical issues may need to be resolved as Burke commences his representation of Drezga, but we are confident that the district court can capably address and resolve those concerns as they arise.\\n\\u00b6 37 Although we do not anticipate that Burke will offend the rules of professional conduct while representing Drezga, we do wish to provide Burke with the assurance that, so long as his actions as Drezga's advocate are undertaken in a good-faith effort to comply with the district court's order of appointment, he cannot be subjected to disciplinary action. The Ethics Advisory Committee has previously implied as much, but we now hold that this is the case. In Ethics Advisory Committee Opinion 107 (Feb. 15, 1992), the Ethics Advisory Committee stated that it would be \\\"unlikely that the Utah State Bar would pursue disciplinary action\\\" against a lawyer who complies with an appointment order that may cause a violation of the rules of professional conduct. We feel that a more categorical statement is warranted, as we can comprehend no situation in which a lawyer should be subject to discipline for complying in good faith with an order of appointment. In situations where an appointment raises ethical concerns, a lawyer, through no action of his or her own, is thrust into circumstances in which conflicting duties demand seemingly incompatible actions. Having so placed a lawyer in the mire, it offends fundamental notions of fairness to think that the lawyer can be subject to punishment regardless of which duty he or she chooses to serve. Consequently, we hold that good-faith compliance with an appointment order provides lawyers with a safe harbor in which they can be free from exposure to disciplinary action.\\nCONCLUSION\\n\\u00b6 38 In this case, the district court, after a careful analysis of the factors affecting its appointment decision, determined that appointment of counsel was the best means of effectuating a just process and a fair result and that Drezga's consent to such represen tation could be fairly implied. We are not persuaded that the district court's order requires Burke to violate the Utah Rules of Professional Conduct or that the district court otherwise abused its discretion in reaching its conclusion. However, given the multitude of factors that a district court must weigh before determining whether appointment of counsel is appropriate, our decision in this matter is, by necessity, inextricably linked to the particular facts presented by this case. Consequently, we do not hold that appointment of counsel is generally an acceptable practice whenever an innocent third party may be subject to adverse repercussions if a judgment is entered against an absent civil litigant.\\n\\u00b6 39 Indeed, in this case there are unusual factors that are not likely to be readily reproduced in future controversies. For example, in the present case, the request for appointment was made by an actual party to the litigation and not by a third party whose connection to the underlying proceeding is tenuous or otherwise indirect. Additionally, the present case involves a considerable amount of confusion as to the effectiveness of service and the extent of the role played by David Slagle, the attorney retained by TDC to defend Drezga in the malpractice action. Finally, due to the manner in which this litigation has unfolded, there are doubts as to whether a default judgment can be entered in favor of TDC even if Drezga remains unrepresented and fails to appear in the action. This possibility may make a trial on the merits of TDC's claims unavoidable. Although the district court may have pursued other options to resolve the quandaries present in this ease, we are unpersuaded that the court abused its discretion by following the course it did. Therefore, we decline to relieve appointed counsel from the burdens imposed by that order.\\n\\u00b6 40 Chief Justice DURHAM, Associate Chief Justice WILKINS, Justice PARRISH, and Justice NEHRING concur in Justice DURRANT's opinion.\\n. Upholding the constitutionality of a legislatively enacted limitation on noneconomic damages recoverable in medical malpractice cases, we subsequently reduced the jury award by $1 million. See Judd v. Drezga, 2004 UT 91, \\u00b63, 39, 103 P.3d 135.\\n. Given the procedural posture of the current controversy, Judge Leslie Lewis is properly designated the respondent to Burke's petition. However, Judd and TDC, as real parties in interest, have also participated in briefing and arguing the merits of Burke's petition.\\n. In addition to appointing Burke to represent Drezga, the district court's order mandated that TDC pay all attorney fees associated with Drez-ga's representation. TDC has twice sought review of the attorney fees portion of the appointment order by petitioning this court for extraordinary relief as well as for permission to pursue an interlocutory appeal. We denied both of TDC's requests without comment. In briefing the issues raised by Burke's petition, TDC once again requests that we review whether the attorney fees portion of the order was proper. However, the petition filed by Burke did not seek review of the attorney fees portion of the district court's order. In fact, in his petition, Burke expressly contrasted the relief he was pursuing with that sought by TDC in its earlier request to pursue an interlocutory appeal, which asked this court to review the attorney fees portion of the order. Additionally, at oral argument, Burke stated that his petition, by design, focuses on ethical rather than financial issues. Therefore, the appropriateness of requiring TDC to assume the full burden of Drezga's attorney fees is not properly before us, and we decline to address it. See Osborne v. Adoption Ctr. of Choice, 2003 UT 15, \\u00b624, 70 P.3d 58 (declining to address arguments raised in a rule 65B petitioner's brief that were not contained in the original petition).\\n. We do note that rule 244 of the Texas Rules of Civil Procedure requires courts to appoint coun sel for a civil defendant who has been served by publication and who has not answered the complaint or otherwise entered an appearance within the prescribed time. Tex.R. Civ. P. 244 see Isaac v. Westheimer Colony Ass'n, 933 S.W.2d 588, 591 (Tex.App.1996) (\\\"The purpose of the portion of rule 244 requiring the appointment of an attorney ad litem is to provide a non-appearing defendant effective representation.\\\"). However, the cases discussing appointments made pursuant to that rule are of limited value here, as in Utah, an appointment of this nature is not required or even expressly authorized by rule.\\n. In undertaking its analysis of the appointment power, the Bothwell court relied heavily on the Third Circuit's decision in Eash, which held that a district court had inherent authority to impose jury empaneling costs on an attorney as a form of sanction. Eash, 757 F.2d at 568.\\n. As this court is charged with the ultimate duty of overseeing the conduct of attorneys practicing law in this state, we are not bound by opinions issued by the Ethics Advisory Committee. See Utah Const, art. VIII, \\u00a7 4. Nevertheless, the analyses contained in the committee's opinions provide a rich vein of material worthy of examination.\\n. Initially, in a 10-3 opinion, the Ethics Advisory Committee determined that limited representation of an absent litigant could ethically be pursued. That opinion was superceded by Opinion 04-01 A, in which the Ethics Advisory Committee, though acknowledging that the issue was a close call for several members, unanimously reached the opposite conclusion.\\n.The term \\\"nonconsensual\\\" is somewhat misleading, as the relationship is deemed formed through a type of implied consent. The term is used when, for example, a court appoints a lawyer to represent an individual lacking the capacity to reject the lawyer's services. See Restatement(Third) of The Law Governing Lawyers \\u00a7 14 cmt. g. (entitled \\\"Nonconsensual relationship: appointed counsel\\\").\\n. The district court expressly acknowledged this determination, stating that \\\"the Court in its discretion presumes that a defendant under similar circumstances to defendant Drezga would expressly agree to be represented by the attorney that the Court selects....\\\"\"}"
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+"{\"id\": \"9103188\", \"name\": \"IHC HEALTH SERVICES, INC., a Utah non-profit corporation, Plaintiff and Appellee, v. D & K MANAGEMENT, INC., a Utah corporation, Defendant and Appellant\", \"name_abbreviation\": \"IHC Health Services, Inc. v. D & K Management, Inc.\", \"decision_date\": \"2003-03-11\", \"docket_number\": \"No. 20010508\", \"first_page\": \"320\", \"last_page\": \"325\", \"citations\": \"73 P.3d 320\", \"volume\": \"73\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Utah Supreme Court\", \"jurisdiction\": \"Utah\", \"last_updated\": \"2021-08-10T21:02:17.390114+00:00\", \"provenance\": \"CAP\", \"judges\": \"{13 Associate Chief Justice DURRANT, Justice RUSSON, Judge BENCH, and Judge BRYNER concur in Justice WILKINS opinion.\", \"parties\": \"IHC HEALTH SERVICES, INC., a Utah non-profit corporation, Plaintiff and Appellee, v. D & K MANAGEMENT, INC., a Utah corporation, Defendant and Appellant.\", \"head_matter\": \"2003 UT 5\\nIHC HEALTH SERVICES, INC., a Utah non-profit corporation, Plaintiff and Appellee, v. D & K MANAGEMENT, INC., a Utah corporation, Defendant and Appellant.\\nNo. 20010508.\\nSupreme Court of Utah.\\nMarch 11, 2003.\\nRehearing Denied July 1, 2003.\\nGuy P. Kroesche, D. Matthew Moscon, Matthew M. Durkam, Salt Lake City, for plaintiff.\\nMichael N. Zundel, Glenn R. Bronson, Salt Lake City, for defendant.\", \"word_count\": \"2408\", \"char_count\": \"14227\", \"text\": \"WILKINS, Justice:\\n11 D & K Management, Inc. (\\\"D & K\\\") appeals from an order granting summary judgment to IHC Health Services, Inc. (\\\"IHC\\\") and denying D & K's cross motion for summary judgment. IHC seeks forfeiture of D & K's leasehold interest in proper ty owned by IHC based on D & K's alleged default under the lease. D & K argues that the trial court erred in granting IHC's summary judgment motion because IHC waived its right to enforce any prior breach by forfeiture. D & K also argues that the trial court failed to properly consider its argument that IHC should be estopped from enforcing the forfeiture provision. We reverse and remand with regard to D & K's waiver argument, but hold that D & K's estoppel argument fails.\\nBACKGROUND\\n112 D & K operates an ongoing business on property owned by IHC in Murray City. D & K's lease of the subject property commenced in 1994 with IHC's predecessor-in-interest, Medical Plaza 9400 (\\\"Medical Plaza\\\"), as the lessor. IHC purchased the property in January 1998, retaining the principals of Medical Plaza, Dan and Steve Rideout (the \\\"Ride-outs\\\"), as property managers. IHC notified D & K of the sale by letter, which indicated that D & K should continue making payments \\\"at the regularly scheduled time each month\\\" to the Rideouts. Under the terms of the lease, D & K was required to pay rent by the first of each month with a ten-day grace period following.\\nT8 Prior to the sale of the property to IHC, D & K consistently paid rent late. Medical Plaza at times served D & K with notices to pay or quit, whereupon D & K tendered the overdue rent. D & K was sometimes assessed a late fee when it paid late. Subsequent to IHC's acquisition of the property, D & K's February 1998 rent check was deposited on February 24, 1998, fourteen days after expiration of the grace period. Though D & K's president, Kent Bangerter (\\\"Bangerter\\\"), testified in a deposition that he had no reason to believe February's rental payment was late, D & K contends that the February check was tendered after the grace period's expiration, while IHC argues that February's rent was timely paid. The rent for March 1998 went unpaid throughout the month of March and was not tendered until April 16, 1998, after D & K received a notice of default from IHC. The notice of default was premised on nonpayment of March and April 1998 rent. In accordance with the terms of the lease, IHC's notice declared a forfeiture of the lease and demanded surrender of the subject property within 30 days. Upon receipt of D & K's check for March rent, IHC promptly returned it uncashed to D & K on April 17, 1998. Despite the notice of default's statement to the contrary, April rent was actually cashed by IHC on April 8, 1998, before it sent the notice of default. The record is unclear as to how April rent was tendered by D & K. D & K asserts that it took the check to the Rideouts' secretary. IHC has asserted both that tender was to the Rideouts' secretary, and, to the contrary, that rent was tendered at one of IHC's corporate offices.\\nT4 From May 1998 until March 1999, D & K continued to tender rent by check each month. IHC did not cash these checks but retained possession of them. IHC sent a letter to D & K addressed as \\\"Dear Tenant,\\\" in June 1998 demanding increased rental payments pursuant to the terms of the original lease agreement. Thereafter, IHC sent monthly billing statements and invoices to D & K noting amounts IHC believed were delinquent and demanding the increased rent amount, which D & K tendered each month. In other correspondence in January 1999, IHC, again addressing D & K as \\\"Dear Tenant,\\\" demanded that D & K. provide proof of insurance to IHC in accordance with the original lease agreement. D & K. complied. In March 1999, the parties entered into an escrow agreement governing further collection of payments from D & K and reserving various rights of each party pending resolution of the dispute presently before this court. IHC filed a complaint in the trial court in May 1999, commencing this action on the lease to enforce forfeiture thereof. D & K answered, arguing that the original lease agreement was modified by the parties' course of dealing and IHC should be estopped from enforcing the original lease terms. D & K also argued that IHC's acceptance of April 1998 rent, demand for increased rent, and demand for proof of insurance waived IHC's right to enforce the forfeiture provision of the lease. Eventually, IHC filed a motion for judgment on the pleadings and D & K filed a cross motion for summary judgment. The trial court's memorandum decision on those motions is the subject of this appeal.\\nT5 The trial court concluded that D & K had breached the lease by failing to make a rental payment in March 1998. It then addressed D & K's argument that IHC waived its right to enforce the default by way of forfeiture, concluding that IHC had not waived. In addition to many of the facts noted above, the trial court's statement of the facts contains the following: \\\"IHC promptly returned the March and April checks to D & K.\\\" D & K argues that the trial court's determination of the waiver issue was in error and that the trial court failed to properly address D & K's estoppel argument.\\nANALYSIS\\nI. STANDARD OF REVIEW\\n16 \\\"Summary judgment is proper only where 'there is no genuine issue as to any material fact and . . the moving party is entitled to a judgment as a matter of law.'\\\" Peterson v. Coca-Cola USA, 2002 UT 42, 17, 48 P.3d 941 (quoting Utah R. Civ. P. 56(c)). However, unlike most cases, the legal conclusions underlying a trial court's grant of summary judgment on a waiver issue are reviewed with some measure of deference. See State v. Pena, 869 P.2d 982, 988-89 (Utah 1994) (noting paring back of waiver doctrine in Soter's, Inc. v. Deseret Fed. Sav. & Loan Ass'n, 857 P.2d 985 (Utah 1998), as recognition that de novo review was not appropriate in fact dependent area of waiver). In a waiver case decided on a motion for summary judgment, we must first inquire whether there are disputed material facts. If there are no disputed material facts, we consider all undisputed material facts in the light most favorable to the nonmoving party, Peterson, 2002 UT 42 at 17, 48 P.83d 941, before determining whether the trial court's decision on the application of the law of waiver to those facts falls within the bounds of its discretion.\\nII, WAIVER\\n17 Waiver is an intensely fact dependent question, requiring a trial court to determine whether a party has intentionally relinquished a known right, benefit, or advantage. Soter's, 857 P.2d at 940. In order to find that a waiver occurred, we held in Soter's that \\\"a fact finder need only determine whether the totality of the civreum-stances \\\"warrants the inference of relinquishment'\\\" Id. at 942 (internal citation omitted). Although \\\"any waiver 'must be distinctly made . it may be express or implied.\\\" Id. at 940 (quoting Phoenix, Ins. v. Heath, 90 Utah 187, 61 P.2d 308, 311 (1986)). Soter's established this test as the only one in waiver cases, moving away from many of our earlier rules which were perhaps more narrow but were also more difficult to apply consistently. Id. at 988-42.\\nT8 The fact dependent inquiry and deferential review established by Soter's essentially cleaned the slate of the type of categorical waiver rule suggested by D & K-that a landlord's acceptance of rent after a breach waives the landlord's right to declare a forfeiture for the earlier breach. See id. at 941 (noting \\\"appellate courts of this state need not attempt to articulate as general principles the specific facts that are required to show intentional relinquishment in particular cases\\\"). We noted in Soter's that decisions from this court are bound to \\\"flesh out the law,\\\" but noted that such decisions were not meant to reformulate our general statement of the law of waiver. Id. In Geisdorf v. Doughty, 972 P.2d 67, 71-72 (Utah 1998), we reaffirmed Soter's even while clarifying it in the narrow facts presented in that case. Id. at 72 (noting clarification but adding that it \\\"should not signal the court's desire to return to the narrow, ambiguous, fact-dependent definitions of [earlier cases]\\\"). Though D & K's suggested rule was previously recognized by this court in Woodland Theatres, Inc. v. ABC Intermountain Theatres, Inc., 560 P.2d 700, 701-02 (Utah 1977), it was implicitly overruled in Soter's. 857 P.2d at 942 (noting \\\"only one legal standard required to establish waiver under Utah law\\\"). We decline to depart from our general waiver rule for resolution of this ease and turn to its application in the present case.\\nT9 Given the importance of the facts in a waiver inquiry, it is critical that a trial court faced with a motion for summary judgment have a complete understanding of those facts. It is evident from the trial court's decision that it did not have such an understanding. While the material facts in this case appear to be undisputed, the trial court misapprehended one material fact. In its statement of the facts, the trial court notes that IHC initially accepted April rent and then promptly returned it to D & K. IHC cashed D & K's April rent check, however, and nothing in the record indicates that April's rent was returned to D & K. Under the totality of the cireumstances test required by Soter's, the fact that THC retained D & K's payment for April rent is material. D & K presented the trial court with a list of actions by IHC that D & K believed amounted to waiver. The trial court considered each of them, but it could not have considered the cumulative impact of those facts coupled with the retention of April rent because it apparently believed that the rent was not retained by IHC. Because of the absence of this fact in the trial court's analysis, the grant of summary judgment was premature, at best. Therefore, we remand to the trial court for reconsideration of its prior ruling in light of the correct facts regarding the April payment.\\nIII. ESTOPPEL\\n110 Inasmuch as it may again arise on remand, we will consider D & K's estoppel argument for the guidance of the parties on remand. Although the trial court's decision did not address D & K's estoppel argument, it is readily resolvable as a matter of law. In order to prevail on a claim for equitable estoppel a party must show that the party to be estopped acted in such a way as to induce reasonable reliance by the other party and that allowing the first party to act contrary to its earlier actions would work to the detriment of the relying party. Nunley v. Westates Casing Servs., Inc., 1999 UT 100, 134, 989 P.2d 1077 (citing CECO Corp. v. Concrete Specialists, Inc., 772 P.2d 967, 969-70 (Utah 1989)). It is evident in this case that there was no action or inaction by IHC that could have induced reasonable reliance by D & K on the ability to make late rental payments.\\nT11 To meet the first prong of equitable estoppel, D & K is required to show that IHC made a statement or admission, or that it acted in a manner inconsistent with its right to enforce the forfeiture provision of the parties' written lease agreement. Id. In this case, D & K must show estoppel by acquiescence because IHC never made any representations that D & K could pay rent late. Indeed, when it took over the subject property from Medical Plaza in January 1998, IHC notified D & K that it should pay rent \\\"at the regularly scheduled time each month.\\\" This letter was in accord with the written lease agreement. Assuming, for the sake of argument, that February's rental payment was late, one month's acquiescence in D & K's late payment is insufficient to justify D & K's alleged reliance on IHC's failure to enforce the forfeiture provision of the lease. Estoppel by acquiescence is applicable when \\\"it would be unconscionable to permit a person to maintain a position inconsistent with one in which he . has acquiesced.\\\" 28 Am.Jur2d Estoppel and Watver \\u00a7 57 (1966). Permitting IHC to enforce the forfeiture provision of the written lease after D & K's failure to pay rent following a one-month acquiescence in late payment is not unconscionable, and D & K's estoppel argument therefore fails as a matter of law.\\nCONCLUSION\\n112 The trial court's failure to consider IHC's acceptance of D & K's April rent payment rendered summary judgment inappropriate under the framework we established for waiver cases in Soter's Inc. v. Deseret Federal Savings & Loan Ass'n. However, D & K's estoppel claim fails as a matter of law. We remand for further proceedings consistent with this opinion.\\n{13 Associate Chief Justice DURRANT, Justice RUSSON, Judge BENCH, and Judge BRYNER concur in Justice WILKINS opinion.\\n\\u20ac 14 Having disqualified herself, Chief Justice DURHAM does not participate herein, and Justice HOWE did not participate herein; Court of Appeals Judge RUSSELL W. BENCH and District Judge BRYCE K. BRYNER sat.\\n. IHC originally filed a motion for judgment on the pleadings, pursuant to rule 12(c) of the Utah Rules of Civil Procedure. Various affidavits and depositions appear in the record and the trial court appears to have correctly converted the motion into one for summary judgment. Utah R. Civ. P. 12(c).\\n. There are disputes about whether February's rent was timely paid and whether April rent was paid to the Rideouts' secretary or to one of IHC's corporate offices, but these factual disputes are not material, 'The timeliness of February's rent is irrelevant to the waiver issue, and the method of tender of April's rent is immaterial because the April rent check was ultimately cashed by IHC, a corporation that must be charged with knowledge that it cashed the check. See, eg., 18B Am.Jur.2d Corporations \\u00a7 1671 (1985) (noting that a corporation is bound by knowledge of agents and officers).\"}"
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