Utah Law Developments, 0620 UTBJ, Vol. 33, No. 3. 24

AuthorBy Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth
PositionVol. 33 3 Pg. 24

Utah Law Developments

Vol. 33 No. 3 Pg. 24

Utah Bar Journal

June, 2020

May, 2020

Appellate Highlights

By Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth

Editor’s Note: The following appellate cases of interest were recently decided by the Utah Supreme Court, Utah Court of Appeals, and United States Tenth Circuit Court of Appeals. The following summaries have been prepared by the authoring attorneys listed above, who are solely responsible for their content.


McDonald v. Fidelity & Deposit Co. of Maryland 2020 UT 11 (Feb. 28, 2020)

When a subcontractor failed to make contributions to various trust funds for its employees’ work on a state construction project and then declared bankruptcy, the trusts sued to recover the unpaid contributions from a public payment bond associated with the project. On appeal from summary judgment in favor of the trusts, the supreme court adopted the reasoning of Forsberg v. Bovis Lend Lease, Inc., 2008 UT App 146, to conclude that the trusts had a general right to sue on behalf of beneficiary employees under Utah’s public payment bond statute, Utah Code § 63G-6-505(4) (2010). The court also held that the trusts (and individual employees) could pursue only those “traceable amounts that are ultimately ‘due’ an individual employee” under the statute. Thus, individual wages or contributions to a 401(k) are recoverable under the statute, but other contributions that benefit employees only as a collective are not.

Utah Dep’t of Transportation v. Target Corp. 2020 UT 10 (Feb. 28, 2020)

In this eminent domain case, the supreme court clarified the standard for severance damages in cases involving partially condemned property by grounding the operative test in the terms of the statute as originally understood. In doing so, the court discussed interplay between judicial gloss in case law and “the importance of sticking to the text of governing rules and statutes.”

Hand v. State, 2020 UT 8 (Feb. 19, 2019)

The supreme court reversed the dismissal of the petitioner’s petition under the Post-Conviction Remedies Act, holding his prior petition that he had voluntarily dismissed did not constitute a “previous request for post-conviction relief.” The court applied the “settled view of the effect of a voluntary dismissal under civil rule 41(a)(1) (A)”; that “such a dismissal renders the proceedings a nullity and leaves the parties as if the action had never been brought.”

Bright v. Sorensen, 2020 UT 7 (Feb. 18, 2020)

In this consolidated interlocutory appeal of three district court orders denying motions to dismiss medical malpractice lawsuits, the court held: 1) that the fraudulent concealment and foreign object tolling exceptions in Utah Code § 78B-3-404 can extend either the limitations or repose periods; 2) that when a plaintiff pleads fraudulent concealment as a response to an anticipated affirmative defense, he or she is not required to plead with particularity under Utah R. Civ. P. 9(c); 3) that the foreign object exception applies in cases in which “foreign” material is wrongfully left in a patient, not where the material left is what was intended by a surgery; and 4) that the Act did not retroactively bar one of the plaintiff’s negligent credentialing claims.

State v. Lujan, 2020 UT 5 (Feb. 11, 2020)

Abrogating State v. Ramirez, 817 P.2d 774 (Utah 1991), the supreme court held that the admissibility of eyewitness identification testimony should be analyzed first under the rules of evidence, but noted that the state and federal due process clauses may operate as a backstop in cases of suggestive police activity.

In re GJP, 2020 UT 4 (Feb. 5, 2020)

The juvenile court appointed a Guardian Ad Litem (“GAL”) for a mother defending against...

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