Utah Law Developments Appellate Highlights

by Rodney R. Parker and Julianne P. Blanch EDITORS NOTE: The following appellate cases of interest were recently decided by the Utah Supreme Court and Utah Court of Appeals. These summaries were compiled to provide a reference to practitioners who want to know in a five-toten-minute read what has been happening of significance in our appellate courts. In re Guardianship of A.T.I.G., 2012 UT 88 (December 11, 2012) Preparing for her imminent death, a single mother prepared a testamentary appointment and conservatorship of her minor child in favor of her parents, pursuant to Utah Code Section 75-5-202.5. Utah Code Ann. 75-5-202.5 (Michie 1993). After the mothers death, the district court signed the grandparents petition for appointment of guardianship to confirm and accept the appointment. As of that time, the childs father was not named on the birth certificate, had not signed a voluntary declaration of paternity, and had never sought to adjudicate parentage. After the appointment, the father moved to vacate the appointment alleging he did not receive prior notice. He also filed a separate lawsuit to establish paternity. The supreme court upheld the appointment of the grandparents as guardians. The court found that although father had intervener status and thus standing, he had failed to preserve appellate challenges to the district courts denial of his motion to vacate. This case raises issues of failing to preserve issues for appeal, as well as testamentary appointments issues such as notice, definition of parent, and establishing paternity under the Utah Parentage Act. It also makes clear that, despite RODNEY R. PARKER is a member of the Appellate Practice Group at Snow, Christensen & Martineau. the court of appeals having done so, the Utah Supreme Court has never recognized an exception to the preservation rule when the central issue to be decided concerns the best interests of a child. Berrett v. Albertsons, Inc., 2012 UT App 371 (December 28, 2012) The Utah Court of Appeals adopted Section 413 of the Restatement (Second) of Torts, stating that a grocery store should have recognized that an independent contractors work on an uncovered manhole in its parking lot created a peculiar unreasonable risk, thus creating a duty of care toward patrons. The court rejected Albertsons argument that adoption of this section runs contrary to the general rule of nonliability on the part of an employer for acts or omissions of its subcontractors. The court explained that the peculiar risk doctrine set forth in Section 413 serves as a limitation to the general rule of nonliability and that it accounts for special situations where the employer is in the best position to indentify and minimize risks associated with the subcontractors activities. State v. Rincon, 2012 UT App 372 (December 28, 2012) A worker did not commit identity fraud when the worker made up a random social security number that happened to match another persons social security number. The worker argued that the word obtain in Utahs identity fraud statute did not include randomly generating a number in a persons own mind. The court held that the word obtain involves a planned action related to an external source, and found that the worker did not obtain the random social security number that he had made up. JULIANNE P. BLANCH is a member of the Appellate Practice Group at Snow, Christensen & Martineau.

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Gardner v. Gardner, 2012 UT App 374 (December 28, 2012) The Utah Court of Appeals addressed for the first time the meaning of the phrase hold harmless in a divorce decree. The court held that the phrase is not simply an agreement to indemnify the other party in the event of loss, but rather a promise that the event will not occur. The occurrence of the event thus forms a basis for a finding of contempt. Further, the court held that, although damage or fiscal loss must result, the claimant need not be able to establish monetary damages. The wife had agreed to assume and hold the husband harmless from a mortgage, and when the wifes late payments resulted in harm to the husbands credit score, he sought a contempt citation, attorneys fees, and other relief. UTA v. Local 382, 2012 UT 75, 289 P.3d 582 (November 6, 2012) A labor union sought review of the district courts order denying the unions motion to compel arbitration of issues relating to UTAs unilateral modification of the unions terms and conditions of employment. The issue became moot after the parties reached a new collective bargaining agreement while the appeal was pending, but both parties argued that the supreme court should decide the issue under a public interest exception to the mootness doctrine. The supreme court found that public interest, by itself, cannot establish an exception to mootness and clarified that the exception requires a three-part showing of an issue that (1) affects the public interest; (2) is likely to recur; and (3) because of the brief time that any one litigant is affected, evades review. The supreme court dismissed the case as moot because it did not satisfy these elements, and it could not address the underlying merits in what would amount to an advisory opinion. Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Assn, 2012 UT 86 (December 7, 2012) A lawyer was found to not have an appeal of right of the denial of his Rule 60(b) motion to vacate the courts disgorgement order, which ordered him to return $30,000 in legal fees, because he was not a party to the underlying suit. The supreme court dismissed the appeal for lack of jurisdiction, noting that the lawyer should have filed either an extraordinary writ or a motion to intervene as a party instead of a Rule 60(b) motion. In a concurring opinion, Justice Lee argued that it is contrary to fundamental principles of due process to deny the lawyers right to appeal a coercive court order on the ground that he was a non-party.

Winward v. State of Utah, 2012 UT 85 (December 7, 2012) The Utah Supreme Court vacated a district courts ruling on a prisoners claim for ineffective assistance of counsel. The prisoner argued that trial counsel was ineffective because counsel failed to explain a plea offer from the State. The district court dismissed the prisoners ineffective assistance of counsel claim under the Post-Conviction Remedies Act because the prisoners claim was filed almost ten years after the statute of limitations. After the prisoner briefed the ineffective assistance of counsel issue, the United States Supreme Court issued a ruling in Lafler v. Cooper, 132 S. Ct. 1376 (2012), holding that the Sixth Amendment right to counsel extends to pretrial plea negotiations and that a deficiency in the pretrial plea negotiation process cannot be redressed by a fair trial. The Utah Supreme Court explained that when a new rule is announced by the United States Supreme Court that provides a petitioner with a newly recognized cause of action, the petitioner may file a motion to vacate the sentence within one year from the date of the decision. Considering that recent decision, the Utah Supreme Court vacated the district courts ruling and held that the prisoner had one year to make a motion to vacate or amend the prisoners sentence. Dorsey v. Dept of Workforce Servs., 2012 UT App 364 (December 20, 2012) The Workforce Appeals Board determined that a claimant was ineligible to receive unemployment benefits where the claimant was an employee at a restaurant and received a seasonal job deferral each year during which he would travel to Mexico. The Board reasoned that when the claimant was in Mexico he was not able and available for full-time work and imposed an overpayment assessment and a civil penalty for fraud. The Utah Court of Appeals set aside the Boards decision, instead determining that the claimant was available for work because the claimant was willing to travel back to Utah within twenty-four hours if his employer requested his services and the claimant could be contacted to do so. The Utah Court of Appeals noted that while foreign and domestic travel are relevant to the determination of availability, it cannot be grounds for denying eligibility where the claimant is able to work and is available for work during each and every week for which [he] made a claim for benefits. See Utah Code Ann. 35A-4-403(1)(c) (LexisNexis Supp. 2012).

Utah Law Developments

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