Utah Law Developments I, 1018 ALBJ, Vol. 31, No. 5. 42
| Author | RODNEY R. PARKER, DANI N. CEPERNICH, SCOTT A. ELDER, NATHANAEL J. MITCHELL, AND ADAM M. PACE |
| Position | Vol. 31 5 Pg. 42 |
September, 2018
Appellate Highlights
RODNEY R. PARKER, DANI N. CEPERNICH, SCOTT A. ELDER, NATHANAEL J. MITCHELL, AND ADAM M. PACE
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
UTAH SUPREME COURT
State v. Wilder, 2018 UT 17 (May 15,2018)
The defendant in the underlying criminal case was convicted of one count of aggravated sexual assault and one count of aggravated kidnapping. He argued on appeal that these two convictions should have merged pursuant to State v. Finlayson, 2010 UT 10,994 P.2d 1243. The Utah Supreme Court repudiated the common-law merger test set forth in Finlayson, and held that the controlling test for merger is set forth in Utah Code subsection 76-1-402(1).
Potter v. South Salt Lake City, 2018 UT 21 (June 5,2018)
In this appeal from a summary judgment order dismissing residents' claims challenging South Salt Lake City Council's decision to close a portion of two streets, the Utah Supreme Court clarified and revised the standard for establishing prejudice when challenging a land use decision. "[A] party challenging a land use decision is not required to prove that the city's decision 'would have been different' absent the violation of city law." "Instead, it is enough for the challenging party to show that there is a reasonable likelihood that the legal defect in the city's process changed the outcome of the proceeding."
Mounteer v. HOA for the Colony, 2018 UT 23 (June 5,2018)
In a dispute over a snow removal contract, Mounteer argued that the HOA had waived an insurance requirement by making payments. The HOA countered and pointed to an anti-waiver provision. At trial, the jury found the HOA had breached the contract and had implicitly waived the anti-waiver provision. In reversing the Utah Supreme Court held that a party may implicitly waive an anti-waiver provision through its conduct, but there must be clear intent to waive both the underlying provision and the anti-waiver provision.
State v. Stewart, 2018 UT 24 (June 12,2018)
The defendant was charged with participating in a pattern of unlawful activity in violation of Utah Code §§ 76-10-1601 to -1609. The district court granted defendant's motion to dismiss this charge, concluding that it could not be based on crimes that the State could not separately charge because the statute of limitations on them had run. On interlocutory appeal, the Utah Supreme Court reversed, concluding that the Pattern of Unlawful Activity Act does not prevent the State from using evidence of acts on which the statute of limitations has expired to prove a pattern of unlawful activity.
Rodriguez v. Kroger, 2018 UT 25 (June 12,2018)
In this appeal from a final judgment following a jury trial in a slip and fall case, the Utah Supreme Court evaluated the effect...
To continue reading
Request your trial