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Hardy v. Hardy; State v. Tapusoa; Somer v. Somer; In re JEG; Griffin v. Snow Christensen & Martineau; Honnen Equipment v. Daz Management; Utah Department of Transportation v. Boggess-Draper Company; Mitchell v. Roberts; Erickson v. Canyons School District; Black Diamond v. Big Cottonwood presented by The Appellate Group


Hardy v. Hardy, 2020 UT Ap 88 (Christiansen Forster, J.)

Brian Hardy went to a therapist’s office to see if his ex-wife, Karen, was taking their child to a therapist that he did not approve of. Brian observed Karen and took two photographs. Karen saw Brian and filed a request for a civil stalking injunction against him. The district court ruled that Brian observing and photographing Karen amounted to two separate acts that constituted a course of conduct and therefore entered the injunction. The Utah Court of Appeals reversed, holding:

  1. Brian’s observing and photographing Karen at the same time and for the same purpose was not sufficient to establish a course of conduct.
  2. Observing someone is generally inherent in the act of photographing that person, especially where the statute requires the photographing to be knowing and directed toward a specific person. There is overlap between several of the acts listed in the stalking statute. The fact that a single action may be described by more than one named example in the statutory list does not mean multiple acts of stalking have occurred.
  3. To constitute a course of conduct, the alleged actions must be distinct in time or purpose. The purpose of the conduct is relevant in assessing whether two separate acts have occurred. In this case, the photographing and observing occurred essentially simultaneously and furthered a single purpose of proving that Karen was taking the child to see an unapproved therapist. 


State v. Tapusoa, 2020 UT App 92 (Mortensen, J.)

In his plea agreement, the defendant agreed to pay restitution for his dismissed charges. At sentencing, the defendant spoke to the court and the defendant’s counsel informed the court of the concerns of the defendant’s mother. Then the court made a restitution determination. Counsel objected the next day, asking for more detailed valuations on the amount the victim claimed the defendant owed. The court found the victim’s restitution proffer sufficient to support the amount. The Utah Court of Appeals affirmed, holding:

  1. The district court did not violate the defendant’s right of allocution. The defendant addressed the court at his sentencing hearing. Neither did the district court abuse its discretion in having the defendant’s mother speak through the defendant’s attorney.
  2. Trial counsel did not provide ineffective assistance when she failed to object with more specificity at the restitution hearing because no particular prejudice resulted from counsel’s failure to object.


Somer v. Somer, 2020 UT App 93 (Mortensen, J.)

A husband moved to modify the divorce decree to terminate his alimony obligation. Although the wife attempted to find attorneys, she did not file an answer on time, and the husband moved for a default judgment. The commissioner recommended denying the motion, and the district court followed that recommendation. The Utah Court of Appeals affirmed, holding:

  1. When considering an objection to a commissioner’s recommendation, the district court must do independent findings of fact and conclusions of law, but the district court here incorrectly reviewed the commissioner’s order for abuse of discretion. However, the wife invited the district court’s error when it informed the court that it could review the commissioner’s recommendation for abuse of discretion.
  2. The district court did not abuse its discretion when it determined that the wife’s efforts did not constitute excusable neglect under Utah R. Civ. P. 60(b) sufficient to set aside a default judgment.


In re JEG, 2020 UT App 94 (Orme, J.)

The State charged the young defendant with two counts of sexual abuse of a child, alleging that the defendant touched another child’s genitals twice. At trial, the defendant presented evidence that cast significant doubt on the dates when the child alleged the touching occurred. After the close of evidence, the State moved to amend the delinquency petition to broaden the date range, and the juvenile court granted that motion and allowed the defendant additional time to present evidence. Eventually, the juvenile court found the defendant delinquent. The Utah Court of Appeals affirmed, holding:

  1. The juvenile court did not abuse its discretion in allowing the State to amend the petition after the close of evidence; the court provided the defendant with additional time to present evidence, and the defendant could not demonstrate that this course of action was insufficient to cure the prejudice resulting from the amendment.
  2. Assuming that double jeopardy protections apply in juvenile cases, the defendant’s double jeopardy rights were not violated because the juvenile court had not reached a final decision in this case when the court allowed the State to amend the petition.
  3. Even though the State had difficulty establishing the time and date of the offenses, the State presented sufficient evidence from which the juvenile court could find that the defendant committed the offenses.


Griffin v. Snow Christensen & Martineau, 2020 UT 33 (Petersen, J.)

Ron Griffin brought a malpractice claim against Snow Christensen & Martineau (SCM). SCM moved to dismiss the complaint. The court granted the motion and signed the proposed dismissal order (April 10 Order). Griffin subsequently filed a post-judgment motion for relief, and SCM argued that the motion was not timely because it was filed more than 28 days after the April 10 Order. The district court concluded that the April 10 Order was not a separate judgment under rule 58(a) of the Utah Rules of Civil Procedure and therefore did not start the time to file post-judgment motions. The court considered and granted Griffin’s motion, and SCM petitioned for an interlocutory appeal. The Utah Supreme Court affirmed, holding:

  1. The time to file post-judgment motions or a notice of appeal is triggered by entry of judgment under rule 58A. The rule requires “a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree,” which must be self-contained and independent from any other document, including the decision that gave rise to it. Such a judgment signals at the case level that all claims have been resolved, documents the resolution of each claim, and starts the clock running for post-judgment motions and appeal.
  2. If the court does not enter a separate judgment under rule 58(a), the entry of judgment does not take place until “150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” Utah R. Civ. P 58A(e)(2)(B).
  3. The April 10 Order in this case was not a final judgment because it was named “Order of Dismissal with Prejudice” rather than “Judgment,” and because it was the order confirming the court’s ruling, not a separate judgment documenting the resolution of the claims in the district court. Accordingly, judgment was not final until 150 days from the April 10 Order, and Griffin’s post-trial motions were therefore timely.

Honnen Equipment v. Daz Management, 2020 UT App 89 (Appleby, J.)

Honnen Equipment (Honnen) rented machinery to Daz Management (Daz). It filed suit for damages against Daz’s owner, who was found not liable at a bench trial. It thereafter filed suit against Daz. The district court determined the second suit was barred by claim preclusion. The Utah Court of Appeals reversed, holding:

  1. The district court erred when it dismissed the second suit. The breach of contract claim in the first suit was never decided on its merits. Instead, the first court decided that the wrong parties were before the court.


Utah Department of Transportation v. Boggess-Draper Company, 2020 UT 35 (Lee, A.C.J.)

In 2009, UDOT took a company’s property under eminent domain. The company sold its remaining property several years later, and the property was developed. At a subsequent trial about the value of the taken property, the district court excluded evidence of the subsequent sale. The jury awarded $1.7 million for the property. The company sought an award of attorney fees, arguing that just compensation included attorney fees. The district court denied that request. The Utah Supreme Court reversed, holding:

  1. In a takings case, the date of valuation of the taken property is at the time of the taking. But nothing in the code or caselaw supports a categorical rule precluding post-valuation facts and circumstances to prove damages. A post-valuation-date sale or other development is not conclusive evidence of value or necessarily admissible, but it is potentially relevant evidence that is not categorically barred. Thus, the district court incorrectly excluded evidence of the company’s sale of the remaining property.
  2. Just compensation under article I, section 22 of the Utah Constitution guarantees recovery for takings of and damages to property, but does not sweep more broadly to cover costs incurred in defending a condemnation action. Thus, the district court properly denied the company’s motion for attorney fees and costs.


Mitchell v. Roberts, 2020 UT 34 (Lee, J.)

Mitchell asserted civil claims against Roberts, asserting that Roberts had sexually abused Mitchell in 1981. Mitchell’s claims had expired under the original statute of limitations, but she argued that her claims were revived when the legislature enacted legislation in 2016 providing that certain civil claims against perpetrators of sexual abuse may be asserted, even if “time barred as of July 1, 2016,” for an additional time. Utah Code § 78B-2-308(7). The U.S. District Court for the District of Utah certified the case to the Utah Supreme Court. The Utah Supreme Court answered the certified question, holding:

  1. The Utah Legislature is constitutionally prohibited from retroactively reviving a time-barred claim in a manner depriving a defendant of a vested statute of limitations defense. Based on its precedent and constitutional analysis, the Court determined that such legislation violates the due process clause of the Utah Constitution.


Erickson v. Canyons School District, 2020 UT App 91 (Orme, J.)

The plaintiff was hit in the head by a flagpole thrown into crowded bleachers by another student while the plaintiff was attending an assembly on school grounds. No employee provided medical care or called an ambulance. She filed a complaint against the school district, and the school district moved to dismiss the complaint because of governmental immunity. The district court determined that it was too early in the case to grant the motion on the issue of battery. The school district sought interlocutory appeal. The Utah Court of Appeals affirmed, holding:

  1. The district court did not err in denying the school district’s motion to dismiss. The legal outcome depends upon the student’s state of mind. Because the student who threw the flagpole could have intended to have friends catch it, there was at least one scenario in which the student who threw the flagpole did not possess the requisite intent to harm the plaintiff.
  2. For one to act with substantial certainty, it is insufficient that the actor merely appreciates the existence of a risk—even a very high risk. Rather, the actor must know that the harmful contact is essentially unavoidable as a consequence of his action. Thus, a showing of substantial likelihood does not satisfy the substantial certainty standard.


Black Diamond v. Big Cottonwood, 2020 UT App 90 (Christiansen Forster, J.)

A landowner owned a lot and a water share in that lot. He signed over the water share to Kincaid, and Big Cottonwood issued a new water share certificate to Kincaid. The landowner thereafter defaulted on his mortgage and Lot 25 was sold to Black Diamond. Black Diamond was unsuccessful in getting water to the lot. Black Diamond sued Big Cottonwood and Kincaid. But the district court granted summary judgment to Kincaid, struck Black Diamond’s untimely supplemental disclosures, and granted summary judgment to Big Cottonwood with respect to damages. The Utah Court of Appeals affirmed, holding:

  1. The district court correctly granted summary judgment in favor of Kincaid. Kincaid was a successor in interest in the lot’s water share, even though the certificate was newly issued and, therefore, newly numbered. The water share held by Kincaid was the same water share held by the previous owners of Lot 25.
  2. The district court did not exceed its discretion in striking Black Diamond’s supplemental disclosures. Black Diamond’s supplemental disclosures asserted two alternative methods of valuation, neither of which was disclosed prior.
  3. Black Diamond’s failure to timely disclose its theory of damages prejudiced Big Cottonwood. Big Cottonwood could not be expected to devote time and resources to discovery regarding undisclosed damages theories and computations based on conjecture that Black Diamond might like to pursue them down the road.
  4. The district court did not err in granting Big Cottonwood’s motion for summary judgment with respect to damages. Black Diamond purchased Lot 25 without a water share. It has not demonstrated that it suffered any damages as a result of Big Cottonwood’s breach.

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