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Salt Lake City Corp. v. Haik; Northern Monticello Alliance LLC v. San Juan County; State v. Rogers; Cougar Canyon v. Cypress Fund; Salt Lake County v. State of Utah; ACLU of Utah v. State; Ipsen v. Diamond Tree Experts presented by The Appellate Group


Salt Lake City Corp. v. Haik, 2020 UT 29 (Durrant, C.J.)

A Trust owned a piece of land in the Albion Basin, a part of unincorporated Salt Lake County. The Trust sought to develop the land, but, even though the land was located within the water-service area of Salt Lake City (City), the City lacked the infrastructure to actually supply the land with water. The Trust argued that because its lot fell within the City’s approved water-service area, it was thereby an “inhabitant” of the City, entitling it to water services under Utah Constitution article XI, section 6. The district court did not agree, finding that an “inhabitant” was “someone residing within the corporate boundaries of a city.” The Trust appealed, and the court of appeals adopted the district court’s interpretation of “inhabitant,” determining that the Trust’s lot was “beyond the limits” of the City and that the Trust could not, therefore, compel the City to provide it with sufficient water to develop the land. The Trust sought certiorari, and the Utah Supreme Court affirmed the decision of the court of appeals, holding:

  1. The court of appeals did not err in concluding that the term “inhabitant” applies only to those who reside within a city’s corporate boundaries instead of a city’s approved water-service area.
    • The trust is not an inhabitant of the City under the plain language of article XI, section 6, of the Utah Constitution. The Trust reads article XI, section 6 as “all . . . water rights now owned or hereafter acquired by any municipal corporation, shall be preserved, maintained and operated by it” (referring to “municipal corporation”) “for supplying its” (referring to “water rights”) “inhabitants with water at reasonable charges.” Under the Trust’s interpretation, the phrase “supplying its inhabitants with water” refers to the inhabitants of a city’s approved water-service area, not the inhabitants of a city’s municipal boundaries. But because a pronoun usually refers to the nearest reasonable antecedent, the pronoun “its” refers to “municipal corporation,” not “water rights.”
    •  Ratification-era definitions of “inhabitant” provided by the parties also support the conclusion that “inhabitant” refers to a person residing in a municipal corporation: an inhabitant is a (1) “dweller,” or one who is “distinguished from an occasional lodger or visitor”; (2) “one who has a legal settlement in a town, city or parish”; and (3) “one who resides actually and permanently in a given place, and has his domicile there.” The Trust merely holds undeveloped land it seeks to develop so that others may inhabit it, but the Trust itself does not dwell or reside anywhere.
    • A Trust is also not a person who has continuously resided in any county in Utah for a period of four months. So that definition is unhelpful, as it does not speak to how a person, let alone a trust, gains settlement in a municipality instead of a county.
  2. The proceedings of the Utah Constitutional Convention indicate that the public would not have considered the Trust to be an inhabitant of the City at the time of ratification. The framers did not debate the meaning of the word “inhabitant” at the constitutional convention discussing that provision. But the framers consistently used the word “inhabitant” when they referred to those living within Utah’s official boundaries, which indicates that they understood the term as those living within a jurisdiction’s formal boundaries. “Inhabitant” was also used to refer to those whom a city may count among its official population.
  3. Similarly, the 1898 Utah Code indicates that the framers would not have considered the Trust an inhabitant of the City. In the code, inhabitants were those living within a city’s corporate boundaries or who were counted among its official population.
  4. The legal understanding of “inhabitant” at the time the constitution was ratified did not include entities like the Trust. At that time, the word “inhabitant” meant many things: an occupant of land; a resident; a permanent resident; one having domicile; a citizen; and a qualified voter. Utah jurisprudence at that time suggests the term “inhabitant” was understood by the public to be synonymous with “resident.” And many other courts tasked with interpreting the word “inhabitant” in the late nineteenth century concluded it was synonymous with “resident.” But in any event, the Trust does not reside on the land it owns in the Albion Basin. 

Northern Monticello Alliance LLC v. San Juan County, 2020 UT App 79 (Orme, J., majority; Christiansen Forster, J., concurring)

After receiving complaints about a wind farm’s violations of a conditional use permit, a planning commission decided to not revoke the permit, but it did so without allowing another business to participate in the revocation proceedings in a meaningful way. The business appealed to the county commission, which upheld the decision. The business sought judicial review in the district court. The district court remanded the case to the county commission, noting that the county commission’s decision did not comply with basic due process. On remand, the county commission allowed the business to brief and argue the issues but not to present its own evidence. The business sought judicial review again. The district court ultimately granted summary judgment in favor of the county commission, reasoning that the county commission gave the business due process. The Utah Court of Appeals reversed, holding:

  1. Because the statutory scheme and the county zoning ordinance provide protections to adjacent property owners who are harmed by a conditional use permit from the beginning, adjacent land owners who are adversely affected or aggrieved by a land use decision have due process rights at each stage of the process. 
  2. Here, the business—which was comprised of adversely affected persons— was deprived of due process because it was never provided an opportunity to present its evidence of the wind farm’s alleged failure to comply with the conditional use permit.
  3. Concurrence: The concurring judge agreed with the majority’s ultimate conclusion but believed the business’s due process rights arose from the county’s approval of the conditional use permit. The wind farm had a property interest in the continuation of the permit, which entitled it to due process before its permit could be revoked. Likewise, the adjoining landowners who were protected from the conditional use of the wind farm’s property were also entitled to the enforcement of the mitigation required by the permit, which would have given them the right to be heard and present evidence.


State v. Rogers, 2020 UT App 78 (Appleby, J.)

After a string of burglaries in Salt Lake County, the police traced a stolen iPad to a McDonald’s parking lot. One theft victim provided a description of the defendant. Based upon the description and the iPad tracking, the defendant was identified as a suspect and arrested in the parking lot standing next to a car that contained a large amount of stolen property. Police took photographs of the property spread out over the hood of the car, but that property was destroyed prior to trial as a result of “administrative oversight.” Police had also failed to make a complete written inventory of the evidence. The State charged the defendant with multiple counts of burglary, theft, and possession of another’s identification documents. At trial, the defendant moved to dismiss the case, arguing that the evidence had been destroyed in bad faith. The trial court denied the motion. Then, at the close of trial, the defendant moved for directed verdicts on all charges. The trial court denied that motion as well, and the jury convicted defendant on all counts but one. The defendant appealed, arguing that the district court erred when it refused to dismiss his charges under the due process clause of the Utah Constitution and also that the trial court erred when it denied his motion for a directed verdict because the evidence was insufficient to sustain his convictions. The Utah Court of Appeals affirmed his convictions, holding:

  1. The district court did not err when it concluded that dismissal of the defendant’s charges was not warranted under the due process clauses of both the federal and state constitutions. The district court did not address whether the defendant’s argument met the threshold requirement—that the lost evidence had a reasonable probability of being exculpatory to each charge. And the defendant did not explain on appeal why the evidence was significant to each of the crimes the defendant was convicted of. Even assuming the evidence would have pointed to an inference that some of the property was found in a codefendant’s backpack, because the defendant was charged as a party in some instances, that evidence does not undermine confidence in the outcome. Further, the officer’s trial court testimony that he had already ransacked the car before laying the evidence out to document it suggests that the body camera footage would not have disclosed the original location of the property in the first instance. The defendant also failed to explain why the missing evidence would have made a material difference in light of the all the evidence at trial suggesting that the defendant was a perpetrator in the burglaries. **The appellate court did not address a separate federal due process analysis.
  2. The district court did not err when it denied the defendant’s motion for a directed verdict on the theft charge. Value of the property stolen is an element of theft. The State was required to show that the value of the property stolen exceeded $5,000—not what the value of the property was. The jury is not required to determine the fair market value of the property stolen. The victim of the theft at issue testified that two of the stolen items were previously appraised at over $12,500 and had them insured for that amount. While the jury was instructed that the insurance policy did not represent an accurate value of the jewelry, the jury was not required to determine the accurate value of the jewelry, only that its value met or exceeded $5,000. The testimony admitted, including the insurance policy, was sufficient for establishing that element. 
  3. The defendant’s contention on appeal that the evidence was insufficient to support his identification possession conviction is unpreserved. At trial, his counsel argued that the evidence was insufficient to show that he acted as a principal. But on appeal, he argued that the evidence was insufficient to show he acted as an accomplice. Because that argument requires analysis distinct from the analysis the district court engaged in, the defendant’s directed verdict motion did not preserve the claim he raised on appeal. The evidence at trial also supports a conclusion that counsel was not ineffective for failing to raise the above argument under the lens of accomplice liability. Among other things, the defendant was wearing some of the property that was stolen along with the identification documents. The jury could have inferred that the defendant possessed criminal intent that the underlying offense be committed as well as an intent to aid a codefendant. There is no reasonable probability that the outcome would have been different had counsel included both arguments in his directed verdict motion. 


Cougar Canyon v. Cypress Fund, 2020 UT 28 (Durrant, C.J.)

Cougar Canyon obtained a $4 million judgment against Cypress. After losing its appeal, Cypress sued its law firm. Cypress believed it lost its appeal as a result of legal malpractice. At some point after filing the suit, each Cypress party transferred a 99 percent interest in their malpractice claim to JWHM Claims. Cougar Canyon applied for writs of execution on Cypress’s legal malpractice action against the law firm. Cypress filed a motion to quash, arguing that the writs of execution should be cancelled because the malpractice claims had been assigned to another party and because public policy dictated that the claims be exempt from involuntary execution. The district court denied Cypress’s motion to quash and ruled that the malpractice claim was subject to execution. But under the district court’s ruling, Cougar Canyon was only able to execute on each party’s remaining 1 percent interest. Cypress appealed. The Utah Supreme Court affirmed, holding:

  1. Under rules 64 and 64E of the Utah Rules of Civil Procedure, legal malpractice claims may be “acquired by a creditor through attachment and execution,” and none of the policies identified by Cypress justifies a departure from these rules in this case. Legal malpractice claims are considered property under Rule 64. They are therefore subject to execution.
  2. The Court’s decision in Snow, Nuffer, Engstrom & Drake v. Tanasse, 1999 UT 49, does not justify creation of an additional exception to Rule 64 under the present circumstances. There, the Court exercised its absolute authority over the practice of law to prohibit a lawyer from acting in a way that would damage the legal profession. Here, the Court would not be restricting the activities of a lawyer, but of Cougar Canyon, a non-lawyer business entity. Cougar Canyon did not swear an oath to serve as an officer of the courts of the State or to be subject to ultimate authority over the legal profession.
  3. The Court declines to consider Cypress’s jurisdictional issue on appeal because it is unnecessary and because it did not have the benefit of adversarial briefing. It would be unwise to answer that question without adversarial briefing.


Salt Lake County v. State of Utah, 2020 UT 27 (Durrant, C.J.)

The Utah Legislature amended portions of Utah’s tax code that established the methodology for determining the property tax obligations of airlines operating within the state. Several counties sued the State, arguing that the amended provisions violated the Utah Constitution. After the State filed a motion to dismiss, the district court dismissed all the counties’ claims because they were either unripe or failed to exhaust administrative remedies. The Utah Supreme Court affirmed, holding:

  1. The district court properly dismissed as unripe the counties’ claims relating to the threshold law, Utah Code § 59-2-1007. The threshold law bars counties from challenging a tax commission’s property tax assessments unless counties reasonably believe the tax commission’s assessment has undervalued property by at least 50 percent. Here, the counties failed to plead that their right to challenge a tax assessment had been violated pursuant to the threshold law or that they intended to challenge a tax assessment that would be barred by the threshold law. The counties’ claims challenging the threshold law were premised on a merely hypothetical state of facts. Because the counties’ challenge to the threshold law in their complaint was framed only by hypothetical facts, their challenge is unripe. 
  2. The district court did not err when it refused to consider matters outside the complaint when ruling on the State’s motion to dismiss under Utah R. Civ. P. 12(b)(1). The State argued for dismissal because the complaint lacked sufficient factual allegations. In this circumstance, the district court did not need to consider any materials outside the pleadings. 
  3. The counties’ remaining constitutional challenges are abstract questions or requests for advisory opinions. The counties merely made allegations about the unconstitutionality of the statutes without tying those allegations to concrete facts. Because courts do no answer abstract questions or issue advisory opinions, the Court does not reach the counties’ remaining arguments.


ACLU of Utah v. State, 2020 UT 31 (per curiam)

The ACLU, the Disability Law Center, and the Utah Association of Criminal Defense Attorneys sought relief on behalf of all individuals in criminal custody throughout the State who are at risk of contracting COVID-19. No individual inmate was named as a petitioner. The ACLU, Disability Law Center, and the Association did not assert traditional or associational standing but argued that they had public interest standing. The Utah Supreme Court dismissed the petition for extraordinary relief as moot, holding:

  1. The ACLU, Disability Law Center, and Utah Association of Criminal Defense Attorneys do not have public interest standing. They have not met the burden of showing how the issues they seek to litigate are unlikely to be raised if they are denied standing. 


Ipsen v. Diamond Tree Experts, 2020 UT 30 (Himonas, J.)

A mulch fire occurred on the property of Diamond Tree, following at least two other fires the week before, as well a warning from the Health Department that the mulch pile was too high. Firefighters, including David Ipsen, responded to the mulch fire, and Ipsen sustained severe injuries from smoke inhalation. Ipsen sued Diamond Tree, and Diamond Tree moved for summary judgment, claiming it owed no duty to Ipsen under Utah’s professional rescuer rule. The district court agreed and granted summary judgment against Ipsen. The Utah Supreme Court reversed, holding:

  1. The professional rescuer rule set forth in Fordham v. Oldroyd, 2007 UT 74—which provides that a person does not owe a duty of care to a professional rescuer for injuries within the scope of hazards inherent in the rescuer’s duties—applies only in cases of ordinary negligence and does not apply if the emergency necessitating the rescuer’s presence was caused by gross negligence or an intentional tort.
  2. There is not a public policy reason to exempt emergencies caused by gross negligence or intentional torts from the general rule that people owe a duty of care to one another. This “holding is based on the vast difference in culpability and the considerably greater deterrence considerations gross negligence and intentional torts present compared to ordinary negligence.”
  3. The violation of an ordinance or statute on its own is not enough to infer that a duty exists. The question is whether the conduct violating the ordinance or statute is negligent, grossly negligent, or intentional.
  4. Lee, J., dissented (joined by Pearce, J.): The dissentwould affirm. The dissent believes under Fordham and Nixon v. Clay, 2019 UT 32, ¶ 21, 449 P.3d 11, the question of duty is based on the doctrines of assumption of risk and implied consent, with the key inquiry being whether the risk is inherent in the professional rescuer’s duties. There is no duty in a case like this because smoke inhalation is inherent in fighting fires and firefighters impliedly consent to the risk of smoke inhalation in the course of their jobs.

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