May 2001

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Utah Supreme Court Review 2000

 

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Justice Michael J. Wilkins & Judith M. Billings

 

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Case Summaries

 

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EDITOR'S NOTE: Supreme Court Justice Michael J. Wilkins and Court of Appeals Judge Judith M. Billings recently addressed last year's important Utah appellate decisions at well-attended CLE events. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers' permission. Especially because readers will not have the benefit of the narrative commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purpose other than generally explaining what each case involves.

Utah Supreme Court Review 2000
By Justice Michael J. Wilkins, Utah Supreme Court

1.Dramshop

Adkins v. Uncle Bart's, Inc., 2000 UT 14, 1 P.3d 528. Three different establishments were sued by the parents of a child killed by a driver who was served alcohol in all three. The supreme court held that remedies under the Dramshop Act were the only ones available to the parents, and that those damages were limited to funeral and burial expenses in the case of the Adkins's deceased son. The Adkins could not bring actions based on negligence, wrongful death, or for punitive damages.

MacKay v. 7-Eleven Sales Corp., 2000 UT 15, 995 P.2d 1233. In a case issued simultaneously with Adkins, the supreme court held that 7-Eleven could be liable for selling alcohol to an underage third party who gave it to an underage driver whose intoxication resulted in the death of his passenger, if the trier of fact found that the injury was foreseeable and proximately caused by the sale.

Red Flame, Inc. v. Martinez, 2000 UT 22, 996 P.2d 540. The supreme court held that a provider of alcohol could seek allocation of fault under the comparative negligence statute from the drunk driver in response to an action against it under the Dramshop Act.

Gilger v. Hernandez, 2000 UT 23, 997 P.2d 305. Milissa Hernandez held a party and served alcohol to a minor guest, Jason Martinez. In a fight, Martinez injured the plaintiffs. The plaintiffs sued their host, alleging she was liable for their injuries. The supreme court held that in a private setting, a host has no liability under the Dramshop Act.

2. Attractive Nuisance

Kessler v. Mortenson, 2000 UT 95, 16 P.3d 1225. Six year old Eric Kessler went to play in the house under construction near his home. He backed into a hole in the floor and fell. Eric's mother sued the home builder and his contractor. The trial court dismissed the action on the grounds that Eric was a trespasser, and that under Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968) and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), the attractive nuisance doctrine did not apply to residential home construction. The court held that while the trial court had correctly applied the rule of Taylor and Featherstone, the exception of residential construction from the general applicability of the attractive nuisance doctrine no longer made sense. Reversing Taylor and Featherstone, the court adopted Section 339 of the Restatement Second of Torts, and held that attractive nuisance was uniformly applicable to residential construction as to other circumstances, reasoning that the hazard was temporary, created and controlled by the builder, and subject to reasonable steps to exclude children and minimize the danger to them, even as trespassers.

Pullan v. Steinmetz, 2000 UT 103, 16 P.3d 1245. Young Arielle Pullan fed Rocky the horse some oats kept near the stables. Rocky bit the hand that fed him. Arielle lost the top of her left ring finger and sued the owners and keepers of the horse. The court held that strict liability as applied to dogs does not apply to horses, even those kept in an urban setting like a pet or hobby. Also, the court declined to apply the attractive nuisance doctrine to Rocky, without reaching the question of whether or not a horse is an "artificial condition upon the land," because the plaintiff admitted that the defendants did not have knowledge that the place where the condition existed was one where children were likely to trespass.

3.Juvenile Law

State ex rel. M.W., 2000 UT 79, 12 P.3d 80. In response to cross petitions for certiorari, the supreme court held that adjudication of a neglect petition in juvenile court against a parent that results in a finding of neglect against the parent constitutes a final order, and deprives the parent of the "parental presumption" under Hutchison v. Hutchison.

State v. Bybee, 2000 UT 43, 1 P.3d 1087. Alexander Bybee, a juvenile tried as an adult, pleaded guilty to murdering a six year old boy, reserving issues for appeal. Bybee had committed the murder in Utah, but moved to Nevada shortly thereafter, and was admitted to a youth mental health facility there by his father. Bybee was 16, almost 17, when he admitted the murder to his father, then police. Bybee was given the Miranda warnings prior to questioning by Utah officers, and waived those rights. On appeal, he argued that Utah Rule of Juvenile Procedure 8(d) prohibiting questioning of a child without his parent's permission in a "detention facility" made the questioning improper. The supreme court held that the Nevada mental health facility was not a "detention facility" within the meaning of the rule and affirmed.

4.Criminal

State v. Clark, 2001 UT 9, 414 Utah Adv. 10. The quantum of evidence necessary to support a bindover to stand trial on a criminal charge is less than that necessary to survive a directed verdict motion. The prosecution must present sufficient evidence to support a reasonable belief that an offense has been committed, and that the defendant has committed it. The standard is the same as for an arrest warrant.

State v. Burns, 2000 UT 56, 4 P.3d 795.  Becky Burns was convicted of murdering her six month old son, Shawn, by starvation and dehydration. A relative had paid for defense counsel, but Burns was unable to afford expert witnesses to testify regarding the medical causes and circumstances of Shawn's death. The trial court required Burns to accept representation by the Legal Defenders Association as a condition to receiving funds to hire an expert. The trial court noted that the LDA contract with the county made arrangements for experts when needed, and that the procedure was a reasonable way to handle the problem. The supreme court held that the Sixth Amendment right to effective assistance of counsel includes the right to expert witnesses when necessary, and that under the Utah Code of Criminal Procedure, at section 77-32-6 (now 77-32-306) and Rule 15(a) of the Utah Rules of Criminal Procedure, counties, cities and towns are required to provide for payment of expert witnesses needed by indigent defendants. The right to expert witness assistance cannot be conditioned upon use of counsel of the county's choosing. Ms. Burns had the right to counsel of her choice, where that counsel was made available to her, and to the assistance of expert witnesses at county expense, if she was indigent.

State v. Nelson-Waggoner, 2000 UT 59, 6 P.3d 1120. Stacey Lamar Nelson-Waggoner was convicted of the rape of a USU female student in his dorm room. She reported a sequence of events related to the rape that were almost identical to those reported by other women who also accused Nelson-Waggoner of rape. Reports of two other women were admitted at trial over defense objections. The supreme court reviewed application of Rule 404(b) of the rules of evidence and held that admission of the evidence of prior bad acts introduced for non-character purposes to establish a pattern of behavior was not error. The court also applied Rule 402 (relevance) and Rule 403 (probative value versus prejudice) in affirming the action of the trial court, and the conviction.

State v. James, 2000 UT 80, 13 P.3d 576. James was parked in his own driveway, having been followed there by officers investigating allegations of DUI. James refused to open the door or window, so the officer opened the door to ask James to get out of the truck. When he opened the door, the officer saw an open alcohol container in the front floor area. The supreme court held that the officer could have required James to open the truck door, and that there was no distinction between James and the officer doing it. To clarify a point made by the court of appeals, the supreme court went on to say that the independent source doctrine and the inevitable discovery doctrine are not one and the same. To avoid application of the exclusionary rule, the burden is on the prosecution to establish by a preponderance of the evidence that the objected-to information ultimately would have been discovered by lawful means. It does not require a showing that the discovery would have resulted from an independent source, only that it would have lawfully come to light in any event.

State v. Visser, 2000 UT 88, 408 Utah Adv. 9. Midway through a jury trial, Visser decided to plead guilty. In conducting the rule 11 plea colloquy, the trial court failed to inform Visser of his right to a speedy trial before a jury. The supreme court concluded that Visser's experience in trial to that point "communicated at least as much as would the mere oral recitation" of the right to a speedy and public trial before an impartial jury and held that the failure to address the issue orally was not error.

State v. Vargas, 2001 UT 5, 413 Utah Adv. 23. Vargas was convicted of the murder of his wife. In the course of trial, he objected to testimony by an investigating officer, and sought to introduce evidence of the officer's prior dishonesty. The supreme court held that Rule 404(b) of the Rules of Evidence applies to witnesses, as well as the accused, and that the evidence of prior bad acts could be admitted.

5.Criminal appeal

State v. Litherland, 2000 UT 76, 12 P.3d 92. The supreme court held that where, on direct appeal, the defendant raises an ineffectiveness of trial counsel claim, defendant bears the burden of assuring the record is adequate. Where trial counsel's alleged ineffectiveness caused or exacerbated the deficiencies in the record, defendants now have an appropriate procedural tool in rule 23B of the rules of appellate procedure for remedying those deficiencies. In addition, the supreme court held that only where a juror expresses a bias or conflict of interest that is so strong or unequivocal as to inevitably taint the trial process should a trial court overrule trial counsel's conscious decision to retain a questionable juror.

6.Attorney fees

Promax Development Corp. v. Raile , 2000 UT 4, 998 P.2d 254. Promax built a home for the Railes. A dispute arose about the payment due for the construction, and Promax filed a mechanic's lien action. In the course of the proceedings, the trial court dismissed the complaint. The parties continued to spar over the question of attorney fees, but proceeded with an appeal and cross-appeal of the underlying judgment. The supreme court held that a judgment is not final, and therefore not appealable, until all issues of attorney fees and costs for trial are resolved. The court reasoned that judicial economy dictated the result, since a disputed award of attorney fees entered after the judgment on appeal could result in a second appeal.

Softsolutions v. Brigham Young University, 2000 UT 46, 1 P.3d 1095. Following an arbitration regarding a software licensing agreement between the parties, the arbitrator awarded attorney fees under terms of the agreement to BYU for the work of in-house counsel. Plaintiff challenged the award in court as beyond the power of the arbitrator, and contrary to law. The supreme court held that BYU was entitled to recover attorney fees on a "cost-plus" rate: the proportionate share of the attorney salaries, including benefits, which are allocable to the case based upon the time expended, plus allocated shares of the overhead expenses, which may include the costs of office space, support staff, office equipment and supplies, law library and continuing legal education, and similar expenses. The court distinguished pro se litigants who were in the business of providing legal services (lawyers and law firms) and individual litigants who represent themselves. These continue to be ineligible for awards of attorney fees.

Faust v. KAI Technologies, 2000 UT 82, 15 P.3d 1266. Faust sued his former employer for work-related expenses the employer admitted it owed. The trial court awarded attorney fees only for the work needed to draft the complaint and take the default of the employer, refusing greater fees sought for negotiating with the employer. The supreme court agreed with the trial court that $1500 was a reasonable amount for fees, noting that section 34-27-1 limits fee awards to "suit" brought to enforce a wage claim, a default by the employer did not present a "bad faith" defense authorizing fees under 78-27-56, and the trial court's equitable power to award attorney fees was to be applied only in extremely rare circumstances, and this was not one of them.

Robinson et al. v. UDOT, 2001 UT 3, 413 Utah Adv. 6. In an inverse condemnation action arising from UDOT's publication of an Environmental Impact Statement regarding US 89 in Davis County, homeowners whose value dropped as a result and sued for inverse condemnation were also entitled to attorney fees under regulations adopted by UDOT directly from federal statutory language, despite UDOT's later claim that it did not have the legal authority to adopt the regulations.

7.Recovery of costs

Young v. State, 2000 UT 91, 16 P.3d 549. Tamilyn Young sued the University of Utah hospital for complications she suffered after she delivered a healthy child at the hospital. The hospital was successful at trial, and the trial court awarded the hospital a variety of costs and expenses. The supreme court disallowed a number of the claimed costs and expenses, holding that the trial court may award the prevailing party its costs of depositions only if it finds that the depositions are taken in good faith, and are essential to the party's development and presentation of its own case. To be essential, they must either be used in a meaningful way at trial or be necessitated by the complex nature of the case and involve information that cannot be obtained in a less expensive way. In addition, fees paid to witnesses above the statutory witness fee are not recoverable. And as a matter of law, trial exhibit expenses are not recoverable costs.

Coleman v. Stevens, 2000 UT 98, 17 P.3d 1122. Mr. Coleman sued for medical malpractice and lost before a jury. The trial court awarded Dr. Stevens costs and expenses that included deposition costs, expenses for trial exhibits, and expert witnesses charges that exceeded the statutory witness fee. The supreme court remanded for review of the deposition costs under the standard set out in Young v. State, above, and reversed as to the expense of trial exhibits and the amount of the expert witness's charges that exceeded the statutory witness fee.

8.Statute of Limitations

In Re Marriage of Juanita Gonzalez, 2000 UT 28, 1 P.3d 1074. Ms. Gonzalez lived with Mr. Briceno from September 1983 until October 1995. Ms. Gonzalez brought a petition to adjudicate her as the wife of Mr. Briceno. The petition was dismissed by the trial court for failure to establish the marriage relationship within the required period set forth in statute. The supreme court reversed. Section 30-1-4.5(2) provides, "The determination or establishment of a marriage under this section must occur during the relationship..., or within one year following the termination of that relationship." Based upon its reading of that language, the court held that Ms. Gonzales need only file an action within the period of the relationship or within one year following the termination of the relationship in order to meet the requirements of the statute. To hold otherwise would defeat the intent of the Legislature, the court said. Further, since the timing of the determination of the marriage relationship is within the control of the courts, and not exclusively the parties, fairness requires such a result. The court held that "section 30-1-4.5 requires only that an action to determine or establish a marriage be commenced within a year of the termination of the relationship."

Potomac Leasing Company v. Dasco Technology Corp. 2000 UT 73,10 P.3d 972. Potomac Leasing brought suit in Texas against Dasco and was awarded a judgment. Twelve years later Potomac filed the Texas judgment in Utah district court pursuant to the Utah Foreign Judgment Act. In a case of first impression, the supreme court held that the eight year statute of limitations on the enforcement of judgments of section 78-12-22(1) applied, barring the action by Potomac. To take advantage of the Utah courts, a plaintiff must abide Utah's restrictions on the bringing of stale actions. The judgment must be enforceable in the foreign jurisdiction, and be presented less than eight years since the rendering or last renewal of the judgment, at the time it is sought to be filed in the Utah court for enforcement.

Kittredge v. Shaddy et al. 2001 UT 7, 414 Utah Adv.3. Failure to timely request a pre-litigation review panel within the 60 days provided under 78-14-12 also prevents the tolling of the statute of limitations otherwise available in a medical malpractice action.

9.Long Arm/Service of Process

Phone Directories Co. Inc. v. Henderson, 2000 UT 64, 8 P.3d 256. In a case of first impression, the court held that contracts containing forum selection/consent to jurisdiction clauses create a presumption in favor of jurisdiction so long as there is a rational nexus between the forum selected and/or consented to, and either the parties to the contract or the transactions that are the subject matter of the contract.

Southland Corp. v. Semnani, 2001 UT 6, 413 Utah Adv. 22. The constable attempted to serve the defendants by leaving a copy of the summons and complaint with a John Doe at an address believed to be that of the defendants. The affidavit of service recited that it was left with John Doe at his "usual place of abode" but said nothing about the usual abode of the defendants. The court of appeals relied upon the presumption afforded the sheriff's return of service as correct and prima facie evidence of the facts stated therein to confirm service. The supreme court agreed on the law, but concluded that since the affidavit of service made only mention of where John Doe's place of abode was, and did not mention defendants, it was defective service and reversed.

10. Constitutional/Political

Brown v. Glover, 2000 UT 89, 16 P.3d 540. Catherine Brown challenged the failure of the court of appeals to afford her the opportunity to orally argue her appeal. The supreme court held that the right of appeal provided by the Utah constitution is not offended by an absence of oral argument. It further said that an appellate court need not explain its reasons for denying oral argument, although doing so would have clarified the issues on review by the supreme court.

Ellis v. Swensen, 2000 UT 101, 16 P.3d 1233. During the 1998 general election, the county clerk was a candidate for reelection, and interpreted 20A-6-301 to allow or require her to place her name and "county clerk" on every page of the multi-page ballot. Her opponent vigorously disagreed and sought an injunction and post-a-note fix, which was granted by the trial court. Two years later the supreme court agreed and affirmed the trial court, noting that although the matter was otherwise moot, to not reach the issue would mean never reaching it in timely fashion.

Spackman v. Board of Ed. of Box Elder Co. School Dist. 2000 UT 87, 16 P.3d 533. Ten year old Jennifer Spackman was assaulted at her school. As a result, she contracted a series of serious medical conditions, and the school made no accommodation for her condition. She missed a lot of school, and the school barred her from further attending. Her parents sued. The supreme court held that the Open Education Clause of the Utah constitution is self-executing, requiring no implementing legislation, and that its mandate that the state have a public education system "open to all children of the state" had been violated by the school.

Utah School Boards Assn. v. Utah State Bd. of Ed. 2001 UT 2, 17 P.3d 1125. The School Boards Association challenged the constitutionality of the Charter Schools Act, 53A-1a-501 et seq. in the Legislature's delegation of control of the charter schools to the State Board of Education. The supreme court held the act is constitutional, in that the Legislature has the plenary authority to establish charter schools as means of pursuing the goal of improving and customizing public education, and that vesting control in the Utah Board of Education is not violative of Article X, section 3 of the state constitution.

11. Lawyers in trouble

Lieber v. ITT Hartford Insurance Center, 2000 UT 90, 15 P.3d 1030. Counsel for ITT Hartford Insurance made representations in its briefs regarding the state of the law that the supreme court found to be not only inaccurate, but misleading. It noted the obligation of counsel to disclose adverse authority, required counsel to appear and address possible contempt, and cited three specific instances in the brief of law presented as controlling or applicable that was miscited or had been reversed. After a hearing on the issue, the court reissued the opinion, deleting the reference to counsel for ITT Hartford appearing "to have attempted to mislead" the court.

Morse v. Packer, 2000 UT 86, 15 P.3d 1021. The supreme court reversed the trial court's refusal to grant rule 11 sanctions against counsel for plaintiff sought by the pro se defendant, and remanded. Counsel had filed two pleadings relying on the "truth" of statements made by his client, and made a statement in oral argument supporting the same position. Defendant's motion for sanctions included a copy of a motion made by counsel in a separate matter involving the same disputed fact, in which counsel had been presented with the evidence that his client had not been truthful with him. Counsel failed to make any reasonable inquiry, and the court held him to be accountable for representations to the contrary in the two written pleadings. The court declined to extend the liability to oral advocacy.

In Re Discipline of Pendleton, 2000 UT 77, 11 P.3d 284. The supreme court affirmed the disbarment of Pendleton for misconduct involving his possession, use, procurement, and distribution of methamphetamine.

Pendleton v. Utah State Bar, 2000 UT 96, 16 P.3d 1230. Pendleton sued the Bar, and bar counsel, for defamation arising from an extensive report of proceedings against Pendleton that eventually resulted in his disbarment. The supreme court held that the bar's publication was in the course of its official duty to disseminate public disciplinary results, and that in doing so the bar enjoyed immunity from suit. However, the court also cautioned the bar that in exercising this duty, it bears a burden of restraint and good judgment commensurate with its position as an arm of the court itself.

Significant Court of Appeals Cases From 2000
By Judge Judith M. Billings
Utah Court of Appeals

CIVIL CASES

Harmon City, Inc. v. Draper City, 2000 UT App 31, 997 P.2d 321. Harmon's supermarket chain sought a rezoning to build a store and shopping complex. The planning commission recommended that the city council approve the rezoning, but the city council denied the rezoning application. The district court granted summary judgment for the city, stating that "so long as it is reasonably debatable that it is in the interest of the general welfare, this court will uphold the city's zoning decision."

We concluded the district court properly reviewed the city council's denial of an application for rezoning under the "reasonably debatable" standard of review, rather than under the "substantial evidence" standard of review requested by Harmon's. We concluded that recent statutory changes did not eliminate different deference when municipality acting in legislative versus adjudicative role. Held the substantial evidence standard and public clamor doctrine only applied when municipality acts in administrative or adjudicative capacity.

Judge Jackson's dissent noted that in Utah Code Ann. 10-9-1001 (1999) the Utah Legislature enacted a "one size fits all" standard of review - arbitrary and capricious- for all municipal land use decisions, and that the Utah Supreme Court decision in Springville Citizens for a Better Community v. City of Springville, 1999 UT 25, 979 P.2d 332 had interpreted the statute to require a "substantial evidence standard," thus precluding a more deferential standard for legislative decisions.

Debry v. Goates, 2000 UT App 58, 999 P.2d 582, cert. denied, 9 P.3d 170 (Utah 2000). Medical malpractice action stemming from a divorce case. Without consulting Debry, Goates gave an affidavit on medical condition of Debry to Mr. Debry during divorce. Debry sued Goates for malpractice, alleging he had breached her therapist-patient privilege by providing the affidavit. Trial court granted summary judgment for Goates holding no privilege as she claimed in her deposition she didn't see him for treatment. Under Rule of Evidence 506, the determination of whether a person is a "patient," and thus entitled to assert the physician-patient or therapist-patient privilege, does not turn on whether the person voluntarily consulted the physician or therapist, but rather on whether the encounter was for purposes of treatment. Here there was evidence of treatment.

Exceptions to the Rule 506 privilege include situations in which the patient's condition is put at issue; Goates argued Debry's condition was at issue, though raised by a third party (her husband), and thus the privilege did not apply to Goates's affidavit. We reversed and remanded. Although we concluded the privilege can be waived even when the mental state is put at issue by a third party, that the doctor may not testify without giving patient notice so patient can have a chance to limit the disclosure. Goates should have notified Debry so she could pursue the appropriate procedural safeguards.

Dipoma v. McPhie, 2000 UT App 130, 1 P.3d 564, cert. granted, 9 P.3d 170 (Utah 2000). Summary judgment was granted against a pro se plaintiff when her personal check for the filing fee of her complaint was returned by the bank for insufficient funds and the four-year statute of limitations ran before she properly paid the filing fee. The trial court agreed with the defendant that filing fees were jurisdictional, and that no action could be commenced without proper payment of the filing fee.

We concluded that the plain language of Rule 3 of the Utah Rules of Civil Procedure contains no specific reference to filing fees as a jurisdictional necessity; all that is required is that the complaint be "filed." Thus, Rule 3 does not require that filing fees be paid prior to commencing an action to vest a trial court with jurisdiction.

Collins v. Sandy City, 2000 UT App 371, 16 P.3d 12 51. (Case of first impression). Recognized general rule that a subsequent change in the operative facts or controlling law generally relieves a party from the application of res judicata. However, in a situation where one party in cases litigating the same legal issue chooses not to pursue an appeal, that party may not benefit from the change of law exception to res judicata where had that party chosen to appeal the change of law would have been obtained.

Baczuk v. Salt Lake Regional Medical Center, 2000 UT App 225, 8 P.3d 1037. The plaintiff underwent surgery to reattach severed fingers, but following the surgery noticed that he had suffered a burn or pressure injury on his buttocks and nerve damage to his leg. He sued the doctors and hospital for negligence, relying on the doctrine of res ipsa loquitur. Summary judgment was granted for the defendants on the ground that they provided unrebutted expert testimony that plaintiff's injuries could have resulted in the absence of negligence.

Where a plaintiff relies on the knowledge and understanding of laypersons to establish the evidentiary foundation from which negligence may be inferred, a defendant may challenge the adequacy of that foundation with evidence showing that the inference of negligence is actually beyond the common knowledge and experience of the layperson. However, under the factual circumstances of the case, defendants' evidence did not conclusively demonstrate that the injuries were beyond the understanding of laypersons, nor that the burns occurred in the absence of negligence; thus, summary judgment was inappropriate.

Beard v. K-Mart Corp., 2000 UT App 285, 12 P.3d 1015. In negligence action, plaintiff who underwent a number of surgeries and sought damages for the same was required to present expert testimony on whether the injuries caused by Kmart's negligence required the surgeries performed. We concluded it was beyond the expertise of laypersons as to whether the injuries she suffered as a result of Kmart's negligence necessitated her multiple surgeries. Thus, testimony on medical causation issue was required before the issue of damages arising from the surgeries could be submitted to jury. We therefore reversed and remanded for a new trial.

Robinson v. Tripco Inv. Inc., 2000 UT App 200, 398 Utah Adv. Rep. 26. A purchaser of land was barred by the merger doctrine from asserting a negligent misrepresentation cause of action for alleged misrepresentations that occurred prior to transfer of the deed. Under merger doctrine, the deed is the final agreement, and all prior terms are extinguished. Fraud in the transaction is one of four recognized exceptions to the merger doctrine, but the majority held negligent misrepresentation does not fall within that exception because negligent misrepresentation does not require a knowing or reckless state of mind - as required for fraud.

Judge Billings concluded in dissent that when, as here, negligent misrepresentation is a form of fraud, an exception to the merger doctrine should apply, allowing the action to proceed. The terms of the parties' contract should dictate whether a claim for negligent misrepresentation is precluded; in this case there was no such term in the contract, thus the claim should have been allowed.

CRIMINAL CASES

State v. Chevre, 2000 UT App 6, 994 P.2d 1278. Truck stopped because of malfunctioning brake light. Stop O.K. even if traffic violation a pre-text. Because of "spacy" behavior of driver, officer did field drug evaluation. Held detention O.K. because reasonable suspicion of drug use. Officer determined driver to be under influence of stimulant and arrested driver. Officer returned to truck to look for stimulants; opened curtains to sleeper compartment and found 350 pounds of marijuana.

Police search of sleeper compartment of defendant's tractor-trailer truck cab was lawful as a search incident to arrest under Fourth Amendment. The sleeper compartment could properly be considered part of passenger compartment, as it was accessible without exiting the cab and was separated from driver's area only by a curtain.

Salt Lake City v. Davidson, 2000 UT App 12, 994 P.2d 1283. Police were dispatched to a possible heroin overdose. Defendant was only other person present but refused to answer questions. Officer arrested defendant for failure to cooperate. Defendant was searched and the officer found marijuana. The trial court denied defendant's motion to suppress, finding the search was justified under the emergency aid doctrine because the officers were trying to determine what substance the victim had overdosed on.

The court adopted for the first time the emergency aid doctrine: the standard for a warrantless search under the emergency aid doctrine is (1) police have a reasonable basis to believe an emergency exists and believe there is an immediate need for their assistance to protect life; (2) the search is not primarily motivated by intent to arrest and seize evidence; and (3) there is a reasonable basis to connect the emergency with the area or place to be searched. Standard under (3) is not probable cause.

Defendant's marijuana conviction was reversed; a majority of the court held there was insufficient evidence that a search of defendant would have uncovered information helpful in treating the unconscious victim. Concurring opinion would limit emergency aid doctrine only to search of victim needing aid.

State v. Ostler, 2000 UT App 28, 996 P.2d 1065, cert. granted, 9 P.3d 170 (Utah 2000). Merely having a defendant view a videotape that discussed in general terms the consequences of pleading guilty and the waiver of constitutional rights, but that did not apply specifically to defendant's situation, did not satisfy the Rule 11(e) requirement that guilty pleas be knowing and voluntary. The record indicated the trial court discussed on the record only one of seven Rule 11 requirements. The videotape did not provide proper notice of the charges against the defendant and thus could not replace the required on-the-record colloquy. Court reached issue even though motion to set aside was made beyond 30 day jurisdictional limit established in State v. Price. Court held it could reach this issue under plain error.

State v. Morgan, 2000 UT App 48, 997 P.2d 910, cert. granted, 4 P.3d 1289. Interprets and clarifies State v. Brickey, 714 P.2d 644 (Utah 1986). The prosecution's innocent miscalculation of the quantum of evidence needed to bind over a criminal defendant is not "good cause" under Brickey for allowing refiling of the dismissed charges unless new or previously unavailable evidence is uncovered to support such refiling. A dissent was written by Judge Greenwood.

American Fork City v. Pena-Flores, 2000 UT App 323, 14 P.3d 698. So long as a police officer is acting within the scope of his or her authority and the detention or arrest has the indicia of being lawful, a person can be guilty of interfering with a peace officer even when the arrest or detention is later determined to be unlawful.

Salt Lake City v. Roberts, 2000 UT App 201, 7 P.3d 789. The key inquiry in determining whether a place is "open to public view" for purposes of a city ordinance making it unlawful for person to engage in sexual conduct "in a place open to public view," is whether the conduct is likely to be observed by a member of the public. This is a fact-sensitive inquiry. we reversed the trial court, which held that it was a public place because it was a public parking lot. Here, defendant was parked next to wall behind two flat-bed trucks that officers had to crawl under to view conduct.

West Valley City v. Hutto, 2000 UT App 188, 5 P.3d 1. In a domestic violence case, officer interviewed victim the morning after alleged violence. The trial court allowed the officer to relate the victim's entire narrative. Utah Rule of Evidence 803(2), providing the excited utterance exception to the hearsay rule is limited to only "spontaneous outbursts" and does not allow a witness to simply recount a declarant's entire story under the guise of the exception. Further, where six hours had elapsed and victim had gone to mother's house she was no longer under the influence of stress.

State v. Widdison, 2000 UT App 185, 4 P.3d 100. (Case of first impression). A baby living in the same house as defendant died after suffering traumatic injuries from abuse. The defendant was the mother's boyfriend, and had assumed a parental role, feeding, babysitting, bathing, and getting up at night with the baby. He was convicted of child abuse, but argued on appeal that there was insufficient evidence to prove he was in the presence of the baby when the injuries occurred and did not have custody of the baby; thus he did not have "care or custody" of the baby for purposes of the child abuse statute.

We concluded the term "care" within the phrase "having care or custody" as used in Utah Code Ann. 76-5-109 (1999) means accepting responsibility for someone's well being. Thus, evidence that defendant was extensively involved in child's life - lived in same household, helped feed, babysit, and bathed child - was sufficient to support defendant's conviction of child abuse.

State v. Swink, 2000 UT App 262, 11 P.3d 299. Swink, a juvenile correctional facility inmate, was not "in custody" at time of an interview such that Miranda warning had to be given prior to confession of a crime. In a correctional facility setting, traditional "in custody" analysis is inadequate since a prisoner is not free to leave. Rather, Miranda is triggered only upon a "change in the surroundings of the prisoner which results in an added imposition on his freedom of movement," or "some act which places further limitations on the prisoner." Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978). Four relevant circumstances are: (1) the language used to summon the inmate; (2) the physical surroundings of the interrogation; (3) the extent to which the inmate is confronted with evidence of his guilt; and (4) the additional pressure exerted to detain the inmate. See id.

JUVENILE CASES

In re A.C.C., 2000 UT App 120, 2 P.3d 464, cert. granted, 11 P.3d 708 (Utah 2000). We held the exclusionary rule applies to juvenile delinquency proceedings. The Fourth Amendment provides individuals, including juveniles, a reasonable expectation of privacy by prohibiting unreasonable searches and seizures. Probation officer's search of juvenile probationer's home, car, and backpack, must be consistent with State v. Ham, 910 P.2d 433 (Utah Ct. App. 1996), and be based on a reasonable suspicion that juvenile probationer had violated the law or terms of his probation.