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Taylorsville City v. Mitchell; State v. Florez; State v. Newton; Volk v. Vecchi; Jones v. Mackey Price Thompson presented by The Appellate Group


Taylorsville City v. Mitchell, 2020 UT 26 (Lee, A.C.J.)

The appellant was convicted of three class B misdemeanors in justice court. He appealed his convictions by invoking his statutory right to “a hearing de novo in the district court.” In the district court, appellant was acquitted of one misdemeanor and reconvicted of two. Appellant twice moved for a new trial, but the district court denied those motions. By statute, appellant had exhausted his right to appeal. He appealed anyway to the Utah Court of Appeals. That court dismissed his appeal for lack of jurisdiction. The Utah Supreme Court granted certiorari to consider whether Utah Code § 78A-7-118(8) is unconstitutional as applied to appellant and whether the court of appeals erred in dismissing appellant’s case under that section. The Utah Supreme Court affirmed, holding:

  1. Section 78A-7-118(8) is constitutional as applied to appellant. The constitutional right of appeal “in all cases” has always been understood as invoking a right to a de novo trial in district court as the final form of review of a justice court judgment. The 1984 amendment did not alter the viability of that appellate remedy. A district court exercises appellate jurisdiction in an appeal from a justice court decision. 
  2. City ofMonticello v. Christensen, 788 P.2d 513 (Utah 1990), was decided three decades ago, is firmly established precedent, and remains so. Christensen’s analysis is in line with the supreme court’s reasoning in the present case.
  3. Section 78A-7-118(8) does not run afoul of the Uniform Operation of Laws provision of the Utah Constitution. Appellant has not argued that similar defendants are being treated disparately within the two classes the statutory scheme creates, so there is no basis to conclude the law is being applied in a way that grants privileges or exemptions to some people and not to others. The statutory scheme also withstands reasonable basis scrutiny. The scheme gives counties and municipalities the discretion to opt out of the justice court system. This flexibility allows counties and municipalities to choose the appellate court structure best suited to their needs.
  4. The post-conviction remedies act preserves appellant’s federal right to effective assistance of counsel.
  5. Appellant largely failed to advance his position in the court of appeals. But appellee likewise did not object on preservation grounds and briefed the merits of all of appellant’s arguments. The Utah Supreme Court, therefore, retains considerable discretion in considering the merits of appellant’s arguments. Fairness to the lower court is a consideration in invoking the preservation rule. But a decision on the merits would bring clarity and closure to important issues fully briefed by the parties. Because the Supreme Court affirmed the lower court and its decision, therefore, did not violate the lower court’s interests in the matter, it decided to reach the merits of the case.
  6. In future cases, asking the Utah Court of Appeals to overrule a decision of the Utah Supreme Court is considered a “best practice” as it creates a record of the arguments for consideration on certiorari, even though the lower court cannot overrule a decision of the higher court. 


State v. Florez, 2020 UT App 76 (Harris, J.)

The defendant poked a wire from a sprinkler into a doorknob of a house. The homeowner told the defendant to leave, but he ignored her and kept jiggling the wire in the doorknob. But before police arrived, the defendant stepped away from the house and put his hands on his head. He told police the house was his and that he was the feds. Earlier in the day, he had run into two other neighbors’ houses, asked if they were “the feds,” and left. The jury never heard about his bizarre but ultimately harmless entries into the other houses in the neighborhood. The jury convicted the defendant of attempted burglary, among other things. On appeal, the defendant argued that insufficient evidence supported the attempted burglary charge and that the trial court erred when it denied his request for a lesser-included-offense instruction. He also filed a rule 23B motion to supplement the record, arguing that counsel was ineffective for failing to investigate a potential key witness. The Utah Court of Appeals affirmed his convictions but remanded for further proceedings concerning his 23B motion, holding:

  1. The State presented sufficient evidence to allow the jury to infer that the defendant had formed the specific intent to commit a felony inside the house he was attempting to enter to support the attempted burglary conviction. The jury may infer specific intent from conduct and attendant circumstances. 
  2. The defendant’s argument concerning the trial court’s refusal to grant a lesser-included-offense instruction is unpreserved as argued on appeal. When a party asks a trial court to take action on a particular legal theory, that party has preserved for appeal only the theory raised and will not be allowed to assign error to the trial court’s ruling based upon a different legal theory.
  3. The 23B motion is supported with affidavits containing a nonspeculative allegation of facts not currently in the record. A neighbor was available to testify that the defendant entered his house, apparently on drugs, asked the occupants if they were “the feds,” and then left. The neighbor then observed the defendant barge into another nearby house and start “yelling at the neighbor if they were the feds.” Defendant then left the house, loitered in the street, and ran down the street. The neighbor also spoke with the occupants of the other house who reported that “a crazy person” had just entered their house, asked if they were “the feds,” and then left. This evidence could support a conclusion that trial counsel performed deficiently and prejudiced the defendant’s case by not presenting this witness’s testimony to the jury. This evidence could have made a jury more likely to believe that the defendant’s intent in attempting to enter the victim’s house was merely to annoy her or inquire about “the feds,” rather than to steal something or assault her—making the defendant liable for misdemeanor criminal trespass rather than felony attempted burglary.

State v. Newton, 2020 UT 24 (Himonas, J.)

A woman claimed the defendant raped her one night in his car; he claimed the sex was consensual. Both testified at trial. He was acquitted of most of the charges but convicted of one count of aggravated sexual assault and aggravated assault. After trial, the defendant obtained new counsel and moved for a new trial because, he argued, trial counsel was ineffective for not having objected to the rape jury instruction and the State had violated Maryland v. Brady when it failed to conduct a forensic examination of the victim’s phone before trial. The Utah Court of Appeals affirmed his convictions, holding:

  1. The jury instruction on rape, although more ambiguous than acknowledged by the court of appeals, did not prejudice the defendant. While the record contains two competing versions of the event, the physical evidence corroborates the victim’s story, and the jury’s conviction shows that it believed her side of the story. Since the defendant’s story was not that he mistook her actions for consent but that she initiated the sexual contact and jumped on top of him, there is no chance the jury believed that the truth lay somewhere in-between both stories, as the defendant suggests on certiorari. Thus, even if the instruction were clearer as to the mens rea for nonconsent, the defendant has not shown a reasonable probability of a different outcome.
  2. A correct jury instruction on rape should clearly convey that the jury must find the appropriate mental state as to both the sexual act and the victim’s nonconsent. The Model Utah Jury Instruction (MUJI) instruction adequately does the job. Here, the jury could have found that the instruction applied to either element or to both. 
  3. The State had no duty under Maryland v. Brady, 373 U.S. 83, to conduct a forensic examination of the cell phone before trial. The prosecution did not suppress the evidence found on the cell phone. And a prosecutor generally has no duty “to search for exculpatory evidence, conduct tests, or exhaustively pursue every angle on a case.” No duty arises under Brady unless the exculpatory value of untested evidence is apparent. The cell phone was simply an avenue of investigation that might have led in any number of directions. 
  4. The evidence retrieved from the cell phone was ultimately not material because there is not a reasonable probability that the evidence found on the cell phone, if presented to the jury, would have resulted in a different outcome for the defendant. The evidence on the phone adds nothing new to the case and would not have raised a reasonable doubt as to the defendant’s guilt.
  5. The court refused to consider an argument not presented to the court of appeals and, therefore, not granted in the petition for certiorari.
  6. Concurring (Petersen, J.): The fourth element of the MUJI offense of rape instruction contains an issue. The instruction provides that the jury must find that the defendant “acted with intent, knowledge, or recklessness that the victim did not consent.” While knowledge and recklessness make sense in the context of consent, intent does not: the meaning of intent does not correspond to a person’s awareness of a surrounding circumstance. MUJI committee has also flagged this issue.


Volk v. Vecchi, 2020 UT App 77 (Pohlman, J.)

A man and a woman lived together in a romantic relationship from 1999 till 2015. They had two children and agreed that the woman should stay home with the children while the man pursued his career. The two jointly purchased four properties in three different states, obtained joint car loans and credit cards, and shared in all income and debt. At a bench trial, a district court determined that they had established a common law marriage for the time that they resided in Utah. The man (appellant) appealed the district court’s finding that he and the woman (appellee) had established a uniform and general reputation as husband and wife. On appeal, he also argued that the district court erred when it failed to order that the parties equally share costs of a custody evaluation. The Utah Court of Appeals affirmed the district court’s determination, holding:

  1. A couple’s acquired reputation for being married may be consistent in a community despite some isolated awareness that the couple is not legally married. Two parties enter into a common law marriage when, among other things, they hold themselves out as husband and wife and acquire a uniform and general reputation as husband and wife and the relationship arises between two consenting parties. Appellee testified that she regularly referred to appellant as her husband, that she considered them to be married, that she introduced appellant as her husband to third parties, that they informed lenders that they were married, and that the two presented as being married. Neighbors and acquaintances also testified that the two presented as a normal married couple and never assumed the two were not married. A few witnesses—a longtime friend, a representative of an employer, and one mutual acquaintance—testifying that they knew the parties were not legally married does not constitute a divided rather than uniform reputation as husband and wife. A reputation is a collective perception or estimation by the public or a community. A general reputation is not undone by an awareness of the few.
  2. The trial court’s determination regarding consent was not an abuse of discretion. On appeal, appellant’s trial testimony that he allegedly refused to marry appellee twice does not undermine the trial court’s determination that the two consented to a common law marriage relationship. Appellee denied those refusals ever occurred. And the court found appellee’s testimony credible while it found appellant’s testimony inconsistent and contradictory. Appellant did not challenge the court’s credibility findings below and or on appeal. He has therefore not shown that the district court’s consent determination was an abuse of discretion. Further, while the best evidence of marital consent is a written agreement by both parties, consent may also be established by evidence of certain circumstances in the parties’ relationship. And ample circumstantial evidence supports the court’s finding of consent.
  3. Appellant waived a challenge to the district court’s ruling regarding the custody evaluation costs and fees.


Jones v. Mackey Price Thompson, 2020 UT 25 (Lee, A.C.J.), 2020 UT App 75 (Pohlman, J.)

An attorney sued a law firm and its partners, asserting that the firm did not pay him fees that he was entitled to after the firm settled a large lawsuit. At trial, the attorney’s expert testified—over the law firm’s objections—about fee-splitting agreements. At the end of trial, the law firm moved for a directed verdict on the attorney’s claims for breach of fiduciary duty and fraudulent transfer and his request for punitive damages. The jury awarded the attorney over $600,000 on his remaining claims. The district court then denied the attorney’s request to impose a constructive trust on the judgment. After the judgment, the law firm’s partners created two other law firms, and the attorney sough to have the new law firms added to the judgment. The district court added one new law firm to the judgment but not the other new law firm. Both the attorney and the law firms appealed. The Utah Supreme Court affirmed in part, reversed in part, holding:

  1. The district court properly granted a directed verdict on the attorney’s fiduciary duty claim. The attorney argued that when the law firm put the lawsuit settlement funds in a trust account, the law firm created a trust and breached a fiduciary duty when it paid out the funds rather than waiting for a jury verdict. But a party cannot unilaterally create a trust and make himself a beneficiary of that trust by the simple expedient of claiming an interest in a pot of money and having another agree to keep him apprised of any distributions. Directed verdict on the fiduciary duty claim was proper. 
  2. The district court improperly granted a directed verdict on the attorney’s fraudulent transfer claim. Under the Utah Fraudulent Transfer Act, Utah Code § 25-6-5, a plaintiff may carry his burden of showing that a defendant had actual intent to hinder, delay, or defraud without showing that it was the defendant’s sole or primary motivation. Here, there was ample circumstantial evidence in the record to support a jury determination that at least one of the law firm’s motives in disbursing the settlement funds was to hinder or delay the attorney’s recovery of those funds. 
  3. The district court improperly granted a directed verdict on the attorney’s punitive damages claim. Punitive damages can be awarded if the tortfeasor’s actions are the result of willful and malicious or intentionally fraudulent conduct. Because the Utah Supreme Court reinstated the fraudulent transfer claim—a claim that rests on fraudulent or malicious conduct—it reinstated the punitive damages claim.
  4. The district court improperly rejected the attorney’s request for a constructive trust because of language in a prior appeal. The prior appeal did not foreclose the availability of a constructive trust. In fact, case law supports the availability of equitable remedies (constructive trust) in support of the collection of damages on a legal claim. The Supreme Court remands to have the district court consider whether a constructive trust is appropriate in this case.
  5. The district court properly concluded that the attorney’s post-judgment attempts to bring new claims against the one of the new law firms was contrary to Brigham Young University v. Tremco Consultants, 2007 UT 17, 156 P.3d 782. The attorney sought to do more than label the new law firm as a successor in interest to the law firm; rather, the attorney was trying to bring substantive common-law and statutory claims against the new law firm.
  6. The district court did not abuse its discretion in allowing the testimony of the attorney’s expert. The attorney’s disclosure of the expert testimony was adequate, and the expert did not testify outside the scope of his report or deposition.
  7. The district court incorrectly added the new law firm to the amended judgment as a successor-in-interest to the law firm without affording the new law firm a chance to challenge the assertion that it was in fact a successor law firm. Although the attorney filed a notice of appeal months before the district court added the new law firm to the amended judgment, that notice of appeal was not effective (and did not deprive the district court of jurisdiction) until after the district court decided the outstanding post-judgment motion and filed the amended judgment. The attorney could seek at add the new law firm as a successor-in-interest under Utah R. Civ. P. 21 and 25, without initiating a new proceeding and serving and summons and complaint. But once the district court determined that it had jurisdiction over the new law firm, it should have required the attorney to show that the new law firm was in fact a successor-in-interest to the law firm; the district court should not have taken the new law firm’s silence during a special appearance as a concession or endorsement of the attorney’s position.

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