Utah Law Developments

Publication year2014
Utah Law Developments
Vol. 27 No. 1 Pg. 24
Utah Bar Journal
February, 2014

January, 2014.


Rodney R. Parker and Julianne P. Blanch.

EDITOR'S NOTE: The following appellate cases of interest were recently decided by the United States Tenth Circuit Court of Appeals, Utah Supreme Court, and Utah Court of Appeals

Olsen v. Park City Municipal Corporation, 2013 UT App 262 (November 7, 2013)

The Utah Court of Appeals held that a challenge to a municipal land use ordinance is timely when filed within thirty days after the ordinance becomes effective. The Municipal Land Use, Development, and Management Act provides that a challenge to an ordinance must be filed no later than "thirty days after the enactment." Utah Code Ann. § 10-9a-801(5) (LexisNexis 2012). The court rejected a city's argument that "enactment" meant passage by the city council, concluding that the term means "all necessary steps to give an ordinance the validity of law." Olsen, 2013 UT App 262, ¶ 13.

Garza v. Burnett, 2013 UT 66 (November 1, 2013)

In answering a certified question from the Tenth Circuit, the Utah Supreme Court held that when an intervening change in law "extinguishes a previously timely cause of action, " the doctrine of equitable tolling will "afford the plaintiff a reasonable period of time after the change in law to bring his claim." Garza, 2013 UT 66, ¶¶ 14-15. Previously, the court only applied equitable tolling in cases where the "discovery rule" was implicated. Id. ¶¶10-11. The court explained that this was not because equitable tolling was limited to such cases, but because there is a high bar that litigants must meet in order to obtain such "extraordinary relief." Id. ¶10. In this § 1983 case, the court held that failure to apply equitable tolling "would be manifestly unjust because [the plaintiff] would lose his cause of action due to circumstances beyond his control and through no fault of his own." Id. ¶ 12.

America First Credit Union v. Kier Construction Corporation, 2013 UT App 256 (October 24, 2013)

The Utah Court of Appeals held that a general contractor could not turn to its stone veneer subcontractor's commercial general liability policy for coverage in a lawsuit brought against the general contractor by the owner for the subcontractor's allegedly defective work. America First, 2013 UT App. 256, ¶¶17-19. The ruling hinged upon the policy's definition of 'Your." Id. ¶¶ 9-10. The policy limited the definition of 'Your" to the "Named Insured." Id. ¶¶ 10, 18-19. The subcontractor was the only named insured in the policy; the general contractor had been added to the policy as an "Additional Insured." Id. Therefore, the exclusions for "your work" and "your product" were exclusions for the subcontractor's work, and the exclusions applied to bar coverage. Id. As to the general contractor's argument that the subcontractor was required by its contract with the general contractor to provide insurance coverage for its defective work, the general contractor's remedy would be to bring a claim for breach of contract against the subcontractor. Id. ¶ 19.

Weber County v. Ogden Trece, 2013 UT 62 (October 18, 2013)

The Utah Supreme Court vacated an injunction against a street gang because the County's service by publication was insufficient. Ogden Trece, 2013 UT 62, 64. Under a public nuisance theory, the County sought an injunction prohibiting the gang from engaging in certain acts. Id. ¶ 2. After the complaint was filed, the County personally served five members. Id. ¶ 8. As an additional precaution, the County sought and was authorized to serve the gang by publication, which it did. Id. ¶ 9. The trial court then granted a preliminary and permanent injunction. Id.¶¶ 11, 16. On appeal, the court first held that it lacked appellate jurisdiction because the individual members of the gang raising the appeal were not parties to the trial court action - only the street gang was. Id. ¶ 28. Nonetheless, several individual members filed a petition for extraordinary writ, which the court concluded was the proper means for the nonparties to challenge the district court's order. Id. ¶ 29. Next, the court concluded that the street gang was amenable to suit as an unincorporated association, even though it was a criminal organization, because it...

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