Utah Law Developments, 1217 UTBJ, Vol. 30, No. 6. 52

Author:Rodney R. Parker, Dani N. Cepernich, Scott A. Elder, Nathanael J. Mitchell, and Adam M. Pace, J.

Utah Law Developments

Vol. 30 No. 6 Pg. 52

Utah Bar Journal

December, 2017

November, 2017

Appellate Highlights

Rodney R. Parker, Dani N. Cepernich, Scott A. Elder, Nathanael J. Mitchell, and Adam M. Pace, J.

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.


E.T. v. R.K.B. (In re Adoption of B.B.) 2017 UT 59 (August 31, 2017)

In an interpretation of the Indian Child Welfare Act (ICWA), the court rejected the application of state law for acknowledging or establishing paternity and held that a federal standard applies. Specifically, the court held that a standard of reasonability applies to the time and manner in which an unwed father may acknowledge or establish his paternity, as ICWA is silent as to both of these requirements, and a reasonable standard is consistent with ICWA’s liberal administration.

Boyle v. Clyde Snow & Sessions P.C. 2017 UT 57 (August 29, 2017)

On a petition for certiorari to the Utah Court of Appeals in a case previously mentioned in these appellate highlights, the Utah Supreme Court reversed the court of appeals’ decision that it lacked jurisdiction to divide fees between a lawyer and his former law firm because the law firm had failed to properly intervene in the case. The supreme court assumed the law firm had failed to properly intervene but held the lawyer had waived any objection to the propriety of the intervention by “essentially acquiescing in the litigation over the merits of the firm’s fee claim and by actively advancing his own competing claim to an award of fees.”

Id. ¶ 13 (emphasis added).

Penunuri v. Sundance Partners, Ltd. 2017 UT 54 (August 25, 2017)

Plaintiff petitioned for a writ of certiorari to resolve whether a court may grant summary judgment on a gross negligence claim in the absence of a standard fixed by law. The Utah Supreme Court affirmed the decision of the court of appeals, holding that summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances, regardless of whether the standard is fixed by law.

State v. Garcia, 2017 UT 53 (August 23, 2017)

In this appeal of a criminal conviction, the supreme court held that trial counsel’s assent to an erroneous jury instruction prejudiced the defendant but prejudice cannot be presumed in the case of an erroneous jury instruction. The court explained that “a proper analysis also needs to focus on the evidence before the jury and whether the jury could reasonably have found that [the defendant] acted in imperfect self-defense such that a failure to instruct the jury properly undermines confidence in the verdict.” Id. ¶ 41. The court also rejected the defendant’s argument that the phrase “an unlawful user of a controlled substance” – the basis of the charge of possession of a firearm by a restricted person – was unconstitutionally vague with respect to him. See id. ¶¶ 54, 57–60. In doing so, it adopted an interpretation that has been accepted by many federal courts in connection with the similar federal statute: that there must be a “temporal nexus between the gun possession and regular drug use.”

Marziale v. Spanish Fork City 2017 UT 51 (August 22, 2017)

This appeal centered on whether a payment error affected the timeliness of a personal injury claim against a municipality. The supreme court reiterated that failure to file a timely undertaking did not present a jurisdictional issue and held that dishonor of payment did not affect the timeliness of the undertaking under the Governmental Immunity Act.

State v. Francis, 2017 UT 49...

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