Utah Law Developments, 1021 UTBJ, Vol. 34, No. 5. 33

PositionVol. 34 5 Pg. 33

Utah Law Developments

Vol. 34 No. 5 Pg. 33

Utah Bar Journal

October, 2021

September, 2021

Appellate Highlights


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.


McCloud v. State 2021 UT 14 (May 20, 2021)

In this Post-Conviction Remedies Act case, the supreme court repudiated the prior standard set forth in lafferty v. State, 2007 UT 73, and held that the Strickland standard applies to ineffective assistance of counsel claims against appellate counsel.

1600 Barberry Lane 8 LLC v. Cottonwood Residential O.P. LP I 2021 UT 15 (May 27, 2021)

The supreme court held, as a matter of first impression, that for the purposes of determining choice of law, an award of contractual attorney fees is substantive, rather than procedural, which in turn resulted in applying the choice of law provision in the contract to the underlying dispute.

Martin v. Kristensen 2021 UT 17 (May 27, 2021)

A divorce court entered a temporary order granting the wife possession of a home owned by her father-in-law during the pendency of the divorce proceedings. The father-in-law filed a lawsuit to evict the wife and obtained an unlawful detainer judgment against her. On appeal, the wife argued that the father-in-law had no right to seek unlawful detainer remedies because her possession of the home was lawful under the possession order. The court affirmed the unlawful detainer judgment, holding that the temporary possession order in the divorce functioned like a temporary possession order in an unlawful detainer proceeding, but did not affect the availability of statutory remedies for unlawful detainer.

Williams v. Kingdom Hall 2021 UT 18 (June 3, 2021)

On certiorari, the Utah Supreme Court vacated the district court's dismissal of an intentional infliction of emotional distress claim which was based on the manner in which Elders of the Kingdom Hall Jehovah's Witnesses conducted a disciplinary proceeding. The district court had applied the test established in lemon v. Kurtzman to hold that the IIED claim would violate the Establishment Clause. The supreme court remanded and instructed the district court to take into account the United States Supreme Court's recent departure from lemon and application of a "more modest approach" under which courts "should eschew a rigid formula in evaluating Establishment Clause cases."

In re G.D. 2021 UT 19 (June 10, 2021)

In this case involving an appeal from a termination of parent rights based upon years of dysfunctionality, substance abuse, and criminal conduct, the appellant asserted error based upon the district court failing to apply a "beyond a reasonable doubt" standard of proof. The supreme court noted that "[a]lthough the U.S. Supreme Court has opened the door for states to adopt an evidentiary standard higher than 'clear and convincing' for termination proceedings," the Utah court declined to adopt the heightened standard.

Shree Ganesh, LLC v. Weston Logan, Inc. 2021 UT 21 (June 17, 2021)

The Utah Supreme Court clarified the common-law duty owed by sellers of real property to "fairly and accurately" disclose "the material elements of property sold when such elements are not easily ascertainable by the buyer and materially affect the value of the property." The court explained that "a 'material element' of property is not limited to physical defects or conditions on the land," but "encompasses any matter or information that would have been an important factor in the buyer's decision to purchase the real estate."

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