Utah Law Developments, Appellate Highlights, 1219 UTBJ, Vol. 32, No. 6. 34

Author:Rodney R. Parker, Dani Cepernich, Robert Cummings, Nathanael Mitchell, Adam Pace, and Andrew Roth
Position:Vol. 32 6 Pg. 34

Utah Law Developments, Appellate Highlights

Vol. 32 No. 6 Pg. 34

Utah Bar Journal

December, 2019

November, 2019

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.


Thomas v. Hillyard 2019 UT 29 (July 2, 2019)

As a matter of first impression, the court held that the statute of limitations for a legal malpractice claim arising from a criminal case begins to run when the underlying action has concluded and there is no appeal of right available.

Biesele v. Mattena 2019 UT 30 (July 10, 2019)

In this appeal from a jury verdict involving tort claims arising out of an inheritance, the court held that, absent a request for apportionment of fault by a party, the Liability Reform Act does not preclude the district court from imposing joint and several liability. The court also held that the bifurcation of punitive damages is not required in a case in which no party sought to introduce evidence of wealth or financial condition.

Rocky Ford v. Kents Lake 2019 UT 31 (July 11, 2019)

Rocky Ford is a downstream user of water rights from the Bear River. Kents Lake is an upstream user. The two entities had entered into various agreements over several decades. With the advent of sprinkler irrigation, as compared to traditional irrigation, Kents Lake was using less of its upstream flow rights and therefore could store more of its water shares in a reservoir, which deprived Rocky Ford of downstream flow. The supreme court held that Kents Lake was entitled to use its water in the most efficient manner within the bounds of its rights, and that downstream users, even with senior water rights, only have a right to water run-off to the extent it returns to the source; upstream users can benefit from efficiency gains and capture their own seepage.

Nixon v. Clay 2019 UT 32 (July 11, 2019)

Adopting a new framework for assessing liability for sport injuries, the supreme court held that “participants in sports generally have no duty to avoid conduct that is inherent in the sport.” Because the plaintiff’s injuries arose out of contact that occurred while the defendant was reaching in and swiping for the ball – common moves in basketball – the district court did not err in granting summary judgment in the defendant’s favor.

Bradburn v. Alarm Protection Technology, LLC 2019 UT 33 (July 17, 2019)

Plaintiff took an advance on his sales commissions and signed a confession of judgment which included his choses in action against the company. When he quit, he sued the company for unpaid commissions, among other things. The company, meanwhile, executed on the confession of judgment, held a constable sale, purchased plaintiff’s choses in action against itself, moved to substitute itself as plaintiff, and dismissed the case. On appeal from the order granting substitution, the Utah Supreme Court affirmed, concluding that plaintiff’s failure to appeal either the underlying judgment or the constable sale meant the court could not address his argument that the confession of judgment was against public policy. Instead, the court was jurisdictionally limited to evaluation of the substitution order, which was proper.

Vega v. Jordan Valley Medical Center 2019 UT 35 (July 19, 2019)

The Utah Health Care Malpractice Act requires a plaintiff to obtain a certificate of compliance from the Division of Occupational and Professional Licensing (DOPL) before filing suit. The court held that this requirement of the Malpractice Act is unconstitutional because it violates the judicial power provision, by allowing DOPL to exercise the core judicial function of ordering the final disposition of claims without judicial review. Accordingly, the court reversed and remanded the case to be tried on its merits.

State v. Silva 2019 UT 36 (July 23, 2019)

In this direct appeal from a criminal conviction, the court repudiated language in prior case law limiting the review of an attorney’s performance to the law in effect at the time of trial, and held that “‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional...

To continue reading