Friday, March 31, 2006

CoA reverses grant of summary judgment in railroad asbestos case

Christiansen v. Union Pac. R.R. Co., 2006 IT App 117

Christiansen worked for Union Pacific in 1951 installing and removing asbestos containing components. In 1995 he retired because of breathing problems and went on disability. Although he suspected asbestosis, doctors diagnosed him with congestion, pneumonia, and other non-asbestos related conditions. In 2002, Christiansen filed suit against Union Pacific for negligence. Later that year he was diagnosed with asbestosis.

The trial court granted summary judgment Union Pacific’s claim that the three-year statute of limitations for FELA (Federal Employer’s Liability Act) claims had run. It denied Union Pacific’s motion for summary judgment on the merits.

Held:

(1) FELA negligence claims impose a lighter burden on plaintiff’s than ordinary negligence claims. The plaintiff need only show “slight negligence.” Christensen proffered sufficient evidence of negligence, by way of an affidavit from an asbestos expert, to survive summary judgment on the merits.
(2) The parties agree on the facts as they related to summary judgment, but disagree on their interpretation. The proper interpretation of the facts should therefore be left to the factfinder, and summary judgment was inappropriate.
Looking for a law blog on a particular subject or jurisdiction? Check out "A Taxonomy of Legal Blogs" over at 3L Epiphany. He lists HDYLTA and State of the Beehive under the Utah category of State Blogs.

Hat tip: Charlie Foster

Also, check out Blog Fantasy Trading. It's a fantasy stock market for blogs where value is determined by incoming links. Sadly, this poor blog isn't worth much. But Ethan is worth about five grand.

Tuesday, March 28, 2006

Live audio!

The court of appeals and supreme court have started live streaming oral arguments.

Supreme court streaming audio

Court of appeals streaming audio

The supreme court has actually been streaming successfully for a couple of months now, but hasn't publicized it. The supremes have also posted archives of old arguments back to February of 2004.

The court of appeals tried unsuccessfully to stream for the first time on Monday. We'll have to wait until Wednesday to see if it gets the bugs worked out. The court does not have archives posted because I believe it only recently switched from analog to digital recording.

Some road in the middle of nowhere in Tooele County is a public road

State v. Six Mile Ranch Co., 2006 UT App 104

The defendants petitioned the county to abandon a road on Stansbury Island. The county granted the petition, but failed to send written notice to the State, which owned property that abutted the road. The State filed suit to have the abandonment nullified.

The trial court granted summary judgment to the State, ruling that the road was a public thoroughfare and that the county had failed to comply with the notice requirements of Utah Code Ann. § 27-12-102.4 (27-12-102.4 has been repealed; right of way statutes are now found in chapter five of title 72).

The defendants' appeal consisted largely of challenges to the trial court's factual findings about whether the road was a public thoroughfare. The court reaffirmed the broad discretion given to trial courts in making factual findings and the heavy burden appellants have in overturning those findings.

Although the [defendants] disagree with these findings, they again simply present us with the evidence supporting their position at trial--that all uses of the West Stansbury Road were permissive--and reargue the weight of that evidence. As we have already stated, this is an unavailing tactic on appeal . . . The record contains sufficient evidence to support the findings of the trial court and we do not disturb them on appeal.
Later the court wrote:
On a factual issue such as this, where contradictory testimony and evidence were offered at trial, the number of witnesses or the amount of evidence presented by a party in not necessarily determinative of the trial court's resolution of the issue.

Counsel need not second guess client’s decision not to appeal

Schultz v. State, 2006 UT App 105

Once a client says he does not want to appeal an adverse ruling, his attorney has no duty to file a notice of appeal or even to check back with the client to make sure he hasn’t changed his mind.

The client in this case was mentally impaired, but found competent to stand trial. He later claimed that his attorney never explained his right to appeal. The attorney claimed that he did and that the client choose not to appeal. After post-conviction hearing on ineffectiveness, the trial court believed the attorney over the client.

Friday, March 24, 2006

UDOT’s use of orange barrels during construction rather than concrete barriers was not a discretionary function

Johnson v. Utah Dep’t of Trans., 2006 UT 15

Johnson sued UDOT for injuries resulting from an auto accident in a construction zone on I-15. The accident occurred, in part, because UDOT used orange barrels to mark the construction zone rather than concrete barriers.

Both parties agreed that UDOT’s action qualified for blanket immunity under the Governmental Immunity Act but that section 63-30-8 waived that immunity. So the only question was whether UDOT’s action qualified for the "discretionary function exception" to the immunity waiver. That exception applies when "the injury arises out of, in connection with, or results from . . . the exercise or performance or the failure to exercise or perform a discretionary function." The supreme court held that UDOT's decision was not a discretionary function.

Using the Little test, the court determined that UDOT had not shown that it’s decision was a policy decision essential to completion of the construction project. Rather, it was the unilateral action of a single employee without analysis or deliberation. It thus constituted a operational function, not a discretionary function.

Thursday, March 23, 2006

Consumption of drugs does not include metabolizing

State v. Ireland, 2006 UT 17

Utah’s drug possession statute defines “possession” as “ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, swallowing, injection, or consumption . . . of controlled substances.” The State charged Jeffery Ireland with unlawful possession or use of meth and marijuana because his blood tested positive for those substances. The State argued that “consumption” included metabolizing the controlled substance. The supreme court disagreed and held that under the doctrine of ejusdem generis, the word consumption was limited to ingesting drugs. It concluded that Utah lacked subject matter jurisdiction over Ireland because there was no evidence that he “possessed” the drugs in Utah.
The High Court's latest search case, Georgia v. Randolph, portends well for the State in Brigham City v. Stuart. Randolph holds that a physically present co-tenant may override another co-tenant's consent to a warrantless search. The dissent raised concerns about the effect of this decision on domestic violence prevention. The majority countered:

No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other cotenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause, see Texas v. Brown, 460 U. S. 730, 737–739 (1983) (plurality opinion).) Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. See 4 LaFave §8.3(d), at 161 (“[E]ven when . . . two persons quite clearly have equal rights in the place, as where two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist a basis for giving greater recognition to the interests of one over the other. . . . [W]here the defendant has victimized the third-party . . . the emergency nature of the situation is suchthat the third-party consent should validate a warrantless search despite defendant’s objections” (internal quotation marks omitted; third omission in original)). The undoubted right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one cotenant is good against another, standing at the door and expressly refusing consent.

Monday, March 20, 2006

Appellate practice luncheon at the bar

The Appellate Practice and Litigation sections of the bar are sponsoring a luncheon with a panel discussion by judges and staff from the court:

"BEHIND-THE-SCENES AT THE APPELLATE COURTS"

Panel discussion pitched at all levels of appellate experience on the behind-the-scenes operation of Utah's appellate courts. Topics will include the following: scope of staff attorneys' work; decision-making process involved in summary disposition, interlocutory appeal, sua sponte orders for rule 23B hearings, opinions without argument, rehearing, certiorari review; distinctions between per curiam and memorandum decisions: timing of transfers to court of appeals and length of time to issuance of opinions; practice suggestions for practitioners; and more. Lively discussion and ample opportunity for questions anticipated.

Participants: Associate Chief Justice Michael J. Wilkins, Utah Supreme Court; Judge Pamela T. Greenwood, Utah Court of Appeals; Marilyn Branch, Appellate Court Administrator; Clark W. Sabey and Karen S. Thompson, Central Staff Attorneys.

Date: Wednesday, April 12, 2006
Time: 12:00 p.m. to 2:30 p.m.
Location: Utah Law and Justice Center
645 South 200 East
Salt Lake City, UT
CLE: 2.5 Hours CLE Credit
Cost: $12 to Appellate and Litigation Section Members;
$15 for all others; Buffet Lunch is provided.
Note: No-shows will be billed.
RSVP: To register call 297-7032, or email sections@utahbar.org, or
fax to 531-0660.

District court may not enter damages judgment for underlying claim at contempt hearing

Homeyer v. Stagg & Assoc., 2006 UT App 89

Homeyer violated a court order and was held in contempt. At the contempt hearing, Judge Lewis took evidence regarding the underlying claims. At the conclusion of the hearing, she held Homeyer in contempt, put him in jail for thirty days, and entered a final judgment for damages against Homeyer in the underlying suit.

The court of appeals affirmed his contempt citation but reversed the damages judgment. It clarified that a court may hear evidence about the underlying claim as part of the contempt hearing and may order damages caused by the contemptuous conduct. But, it may not award damages based on the underlying cause of action.

FYI: one who is held in contempt is a “contemnor.”

Doctor cannot hide behind physician-patient privilege to avoid insurance fraud investigation

Burns v. The Honorable Ann Boyden, 2006 UT 14

This opinion is classic Durrant: clear and logical. I think he's arguably the best writer on the court. The first paragraph in the opinion pretty much sums the whole thing up:

This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. As to the first issue, rule 506 of the Utah Rules of Evidence provides a physician presumptive authority to claim the physician-patient privilege “on behalf of the patient.” We hold that the State has rebutted this presumption by demonstrating that Burns is asserting the privilege not on behalf of his patients but for his own benefit. As to the second issue, Utah law allows the State, with approval and oversight from a district court, to conduct a criminal investigation in secret. Despite the secrecy order obtained by the State, Burns has adequate information about the investigation, and there are adequate procedural safeguards in place to effectively protect Burns’s constitutional rights.
A couple of important points from the opinion. First, the physician-patient privilege issue was decided exclusively under rule 506, Utah Rules of Evidence. The court held that the rules of evidence, not Utah Code Ann. § 78-24-8(4), control physician-patient privilege issues in court. It treated section 78-24-8(4) as an “encroachment” on its rulemaking authority. The court also refused to recognize an insurance fraud exception to rule 506.

Second, the court clarified the analysis for when a physician may claim the privilege on behalf of a patient:

The rule states that the treating physician is presumed “to have authority . . . to claim the privilege.” Yet presuming authority would appear to presume a legal effect rather than a fact. In actuality, since a physician must prove all the basic facts to trigger the presumption that a patient would need to prove to claim the privilege, the only remaining fact for a physician to prove is that he is, in fact, claiming the privilege “on behalf of the patient” and not for his own benefit. In sum, the “presumed fact” under rule 506(c) is that the physician is claiming the privilege on behalf of the patient. Thus, to defeat a physician’s ability to claim a privilege once the physician has proven all the basic facts, a party needs to prove “that the nonexistence of [a physician’s intent to claim the privilege for the patient’s benefit] is more probable than its existence.” In other words, to rebut the physician’s authority, the challenging party must show that it is more likely than not that a physician is claiming the privilege in his own self-interest.
The court relied heavily on Utah Evidence Law by Kimball and Boyce for the above analysis. It concluded that Burns could not claim the privilege because the record demonstrated that he was not claiming the privilege on behalf of his patients, but on his own behalf. The court found particularly compelling Burns’ attack on a court imposed secrecy order under the Subpoena Powers for Aid of Criminal Investigation and Grant of Immunity Act. That order was about the only thing besides rule 506 guarding his patients’ privacy.

Friday, March 17, 2006

Creditors and Debtors

Granite Credit Union v. Remick, 2006 UT App 115

Remick got a loan from Granite secured by a 1997 Plymouth Voyager. When the loan became delinquent, Granite tried to repossess it. Before Granite could find the van, Remick had his towing company impound the van. He then sent Granite a bill for $1682 for towing costs and storage.

Granite ultimately prevailed on a summary judgment motion becuase Remick failed to comply with Utah Code Ann. § 72-9-603 (Supp. 2005).

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Tolle v. Fenley, 2006 UT App 78

This case should be a made for TV movie on Lifetime.

Robert Tolle molested his daughter, Jeanne, during her childhood and adolescence. When she was fifteen, he left and disappeared for 28 years. In 2001, Jeanne located her father and took steps to put him in prison and seize all his property. She told her father and several of his friends and associates about her intentions. He tried to foil her plans by quitclaiming his property to his friends. Jeanne obtained a default judgment against her father in Florida and then sued the people to whom her father had quitclaimed his property. She asserted that under the Uniform Fraudulent Transfers Act (UFTA) the transfers should be voided. The trial court ruled that the transfers were fraudulent under UFTA and voided them. The defendant's appealed.

The court of appeals considered three questions: (1) whether the daughter was creditor with a claim to the transferred properties when, at the time of the transfer, she had not yet obtained a judgment or even filed a complaint; (2) whether her father had actual intent to fraudulently transfer the property under UFTA; and (3) whether her father was insolvent under UFTA?

The court said yes to all three questions. The court broadly construed the words creditor and claim in UFTA. It held that the plaintiff became a creditor and had a claim when she told her father and his friends about her plans to sue him and take everything he had.

Judge Thorne dissented. He argued that the defendant's should be able to collaterally attack the Florida judgment, which was allegedly obtained by collusion with the plaintiff's half-sister and after the statute of limitations had run.

Thursday, March 16, 2006

I am horribly behind on getting case summaries out. For this I apologize. My biggest fear when I started this blog was that I would not be able to keep up with the workload. A recent spat of supplemental briefing in the supreme court and a week long trial ad conference have put me way behind both at work and with HDYLTA.

But I will get caught up, even if it means skipping Lost next week.

Sunday, March 12, 2006

Amendment to appellate rules

In case you missed it, effective April 1, 2006, rule 24 will include more detailed procedures for filing an overlength brief. Here's the new procedures:

(h) Permission for over length brief. While such motions are disfavored, the court for good cause shown may upon motion permit a party to file a brief that exceeds the limitations of this rule. The motion shall state with specificity the issues to be briefed, the number of additional pages requested, and the good cause for granting the motion. A motion filed at least seven days before the date the brief is due or seeking five or fewer additional pages need not be accompanied by a copy of the brief. A motion filed less than seven days before the date the brief is due and seeking more than 5 additional pages shall be accompanied by a copy of the draft brief for in camera inspection. If the motion is granted, any responding party is entitled to an equal number of additional pages without further order of the court. Whether the motion is granted or denied, the draft brief will be destroyed by the court.

Eyewitness’s subjective certainty of identification is admissible

State v. Guzman, 2006 UT 12

Guzman was the primary participant in a brutal home invasion. The victim identified him in a photo array and a line-up and said she was 100 % certain he was the guy. She was allowed to testify about her certainty at trial, and Guzman was convicted. He claimed on appeal that admitting evidence of an eyewitness’s subjective certainty of identification violates the Due Process clause of the Utah Constitution and rule 403, Utah Rules of Evidence. The supreme court disagreed:
[B]oth our case law and modern sociological research support the admission of testimony concerning an eyewitness’s certainty of identification. A jury ought to be able to consider certainty evidence in determining a witness’s credibility and portrayal of the facts. The jury may then decide, based on the remaining facts, whether the certainty testimony is accurate and truthful. However, we do not require the court or the jury to consider a witness’s level of certainty in determining admissibility or reliability, as indicated by its exclusion from the Long factors. Nevertheless, due process is not violated by permitting the court or the jury to weigh certainty testimony with all other evidence it considers in making necessary determinations.
Justice Durham wrote a concurring opinion in which she agreed with the majority, but added that courts should also be required to issue a cautionary instruction about eyewitness certainty evidence.

Saturday, March 11, 2006

Juvenile Delinquency

D.T. v. State (In re D.T.), 2006 UT App 132

D.T. challenged the sufficiency of the evidence in his adjudication for sexual abuse of a child. He was alleged to have fingered a girl in a hot tub at the Ogden Athletic Club. The juvenile court noted that "[b]asically this [case] is her testimony against his" and that "it would look to the surrounding circumstances and what the other witnesses and evidence corroborated." It then explained that the victim's testimony was corroborated by the statements from D.T. and D.T.'s brother.

The court of appeals held that the juvenile court explanation "demonstrates that it carefully weighed each piece of evidence and determined beyond a reasonable doubt that L.T. was telling the truth."

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K.M. v. State (In re K.M.), 2006 UT App 74

This case was a powder keg of issues that was diffused by K.M.’s inadequate briefing of the interesting issues.

K.M. was fourteen when she unexpectedly gave birth in her bathroom at home. She hid the baby in the bathroom windowsill and her mom, unaware that she had given birth, took her to the hospital. The baby was later found dead in the windowsill.

One day into a murder trial in juvenile court, K.M. agreed to admit to child abuse homicide, a third degree felony. She later moved to withdraw her admission, but the juvenile court denied the motion. On appeal, the court of appeals determined that she had failed to preserve most of her arguments and had not adequately briefed plain error. So the court only reviewed her admission to determine if it was knowing and voluntary. The court determined that her admission was knowing and voluntary, with Judge Orme dissenting.

The one helpful point from this case, on which both the majority and the dissent agreed, is that case law analyzing rule 11, Utah Rules of Criminal Procedure, which governs the adult guilty plea colloquy, is applicable to rule 25, Utah Rules of Juvenile Procedure, which governs a juvenile admission colloquy. Where the majority and the dissent disagree is on whether compliance with rule 25 is sufficient to make an admission knowing and voluntary, or whether the juvenile court should consider some additional circumstances. The dissent argued the court must consider several additional factors such as: (1) the age of the juvenile, (2) the relative intelligence of the juvenile, (3) the juvenile’s experience with the legal system, (4) the juvenile’s emotional state at the time of the admission, and (5) the outside pressure of parents, counselors, attorneys, etc. on the juvenile’s decision.

Wednesday, March 08, 2006

Court properly allowed mother-witness to sit behind testifying child-victim

State v. Billsie, 2006 UT 13.

In a child sex abuse trial, the judge permitted the child-victim to testify with her mother sitting behind her. The mother was also a witness in the trial. Billsie was convicted and claimed on appeal that the court abused its discretion in allowing the mother to remain and to sit behind the child.

In a bizarre 1-1-1 split, the court of appeals affirmed. One judge dissented without opinion. One judge concurred in the result without explanation. And one judge wrote the “majority opinion”—a majority of one.

The supremes granted cert and affirmed. The purpose of the witness exclusion rule is to prevent witnesses from changing their testimony based on the evidence at trial. But under rule 615(1)(c), Utah Rules of Evidence, the trial court may allow a witness to remain in the courtroom if his or her presence is essential to a party’s case.

Billsie made no showing that the mother changed her testimony or that he was otherwise prejudiced by her remaining in the courtroom. So the supreme court held that the trial court properly allowed her to stay.

The court also found no error in allowing the mother to sit behind the daughter. “Children called to testify may have an adult accompany them while on the witness stand.” The victim here was eight when she testified, so the court was well within its discretion to allow the mother to accompany the child. Also, because the mother was behind the child, there was little chance that the mother could influence the daughter’s testimony.

Monday, March 06, 2006

Every attorney needs good evidence

With the first case of the year construing one of the rules of evidence, the Topical Archive now has an Evidence area. I hope everybody reads it.

When I went to law school, neither of Utah's law schools required students to take evidence. That is lame. Every attorney should be familiar with the rules of evidence. Because whatever an attorney is doing, he has to look forward to what will happen if the situation ends up in court.

On the other hand, the schools do require students to take professional responsibility. So students have to learn about the duty competence, but they don't have to learn the rules evidence, which are a foundation of competence.

That's the problem with law schools. They teach you how look and sound and think like an attorney. But they don't teach you how to be an attorney.

Evidence

Burns v. The Honorable Ann Boyden, 2006 UT 14

This opinion is classic Durrant: clear and logical. I think he's arguably the best writer on the court. The first paragraph in the opinion pretty much sums the whole thing up:

This case presents two distinct issues: (1) whether Dr. Brian D. Burns may claim the physician-patient privilege as a shield against a state investigation into his allegedly fraudulent billing practices, and (2) whether a secrecy order obtained by the State respecting this investigation is constitutional. As to the first issue, rule 506 of the Utah Rules of Evidence provides a physician presumptive authority to claim the physician-patient privilege “on behalf of the patient.” We hold that the State has rebutted this presumption by demonstrating that Burns is asserting the privilege not on behalf of his patients but for his own benefit. As to the second issue, Utah law allows the State, with approval and oversight from a district court, to conduct a criminal investigation in secret. Despite the secrecy order obtained by the State, Burns has adequate information about the investigation, and there are adequate procedural safeguards in place to effectively protect Burns’s constitutional rights.
A couple of important points from the opinion. First, the physician-patient privilege issue was decided exclusively under rule 506, Utah Rules of Evidence. The court held that the rules of evidence, not Utah Code Ann. § 78-24-8(4), control physician-patient privilege issues in court. It treated section 78-24-8(4) as an “encroachment” on its rulemaking authority. The court also refused to recognize an insurance fraud exception to rule 506.

Second, the court clarified the analysis for when a physician may claim the privilege on behalf of a patient:

The rule states that the treating physician is presumed “to have authority . . . to claim the privilege.” Yet presuming authority would appear to presume a legal effect rather than a fact. In actuality, since a physician must prove all the basic facts to trigger the presumption that a patient would need to prove to claim the privilege, the only remaining fact for a physician to prove is that he is, in fact, claiming the privilege “on behalf of the patient” and not for his own benefit. In sum, the “presumed fact” under rule 506(c) is that the physician is claiming the privilege on behalf of the patient. Thus, to defeat a physician’s ability to claim a privilege once the physician has proven all the basic facts, a party needs to prove “that the nonexistence of [a physician’s intent to claim the privilege for the patient’s benefit] is more probable than its existence.” In other words, to rebut the physician’s authority, the challenging party must show that it is more likely than not that a physician is claiming the privilege in his own self-interest.
The court relied heavily on Utah Evidence Law by Kimball and Boyce for the above analysis. It concluded that Burns could not claim the privilege because the record demonstrated that he was not claiming the privilege on behalf of his patients, but on his own behalf. The court found particularly compelling Burns’ attack on a court imposed secrecy order under the Subpoena Powers for Aid of Criminal Investigation and Grant of Immunity Act. That order was about the only thing besides rule 506 guarding his patients’ privacy.

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Recollection recorded 14 years after event is not “fresh” under rule 803(5)

TWN, Inc. v. Michel, 2006 UT App 70.

This case is the epilogue to TWN, Inc. v. Michael, 2003 UT App 70, 66 P.3d 1031. The issue on appeal this time is the admissibility of a witness affidavit under rule 803(5), the recorded recollection exception to the hearsay rule. Rule 803(5) states:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
This is the first chance a Utah appellate court has had to consider rule 803(5). So the court properly turned to the feds for guidance. Most circuits have adopted a liberal interpretation of the word fresh that does not require contemporaneity and that avoids imposing a maximum allowable time between the event and the recollection. Instead, courts look at each case individually and treat the passage of time as a factor in the overall analysis. They also look at the quality of the recorded recollection and any correlation between the recording of the recollection and the commencement of the litigation.

Using what is in effect a totality of the circumstances analysis, federal courts have allowed recorded recollections into evidence that were made up to three years after the event.

The affidavit TWN sought to admit was executed in 1999 and concerned a real estate transaction in 1985. That 14 year span, the court of appeals concluded, was too long for the recollection to be fresh. The court also determined that the witnesses subjective belief that his recollection was fresh was insufficient to overcome “the more reasonable inference” that the passage of 14 years clouds a person’s memory and undermines the trustworthiness of the evidence.
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