President’s Message

The ZealousAdvocate

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A Newsletter of the Litigation Section of the Utah State Bar

Expanding the Reach of LegalServices

We all likely know someone, if notmany people, who would not be ableto afford an attorney’s assistance if alegal need arose. The number of prose litigants is increasing. As a result,the Utah State Bar and the Utah

Courts have launched various programs designed toincrease legal representation for these individuals.This quarter I have decided to spotlight three of theseprograms and encourage your participation in at leastone.

Lend a Learned Hand Pro Bono Program

Most attorneys are familiar with Rule 6.1 of the UtahRules of Professional Conduct that encourages lawyersto “provide legal services to those unable to pay.” Itstates: “A lawyer should aspire to render at least 50hours of pro bono public legal services per year.” R.Prof ’l. Conduct 6.1. However, many lawyers are notaware that the Utah State Bar can assist them incontacting individuals who are in need of free legalservices.

The Utah State Bar has announced the creation of thePro Bono Commission (“PBC”), a state wide bodytasked with improving and increasing the provision ofpro bono services throughout Utah. The PBCmatches the legal needs of low income individuals to

the expertise and experience of volunteer pro bonoattorneys. District pro bono committees are beingformed to develop local pro bono programs. Theselocal committees will strive to ensure thatparticipating attorneys are matched with individualsonly in the geographic areas in which the attorneyshave agreed to participate.

Since the PBC was created in 2012, PBC has used theslogan “Lend a ‘Learned Hand.’” Judges Michele M.Christiansen and Royal I. Hansen, co-chairs of thePBC, explained, “This slogan, we believe, captures aspirit that we hope you will embrace by volunteeringto provide legal services to our most needy Utahns.”(“Check Yes” to Lend a “Learned Hand,” Judges M.Christiansen and R. Hansen, Utah Bar Journal,http://webster.utahbar.org/barjournal/2012/05/

The program is entirely voluntary and does not havean hour requirement. Further, the PBC is committedto supporting participating attorneys in these probono efforts. The Utah State Bar has hired MichelleHarvey, an attorney, to serve as the Bar’s Pro BonoCoordinator. Ms. Harvey is available to provideattorneys the support that they need and to respondto attorneys’ questions. More information about theprogram can be found athttp://www.utahbar.org/probono/.

ByRyan B. Frazier

1st Quarter 2013

I strongly encourage you to sign up for andparticipate in this important and worthwhileprogram. Get involved by checking “Yes” on theBar’s License Renewal Form or by contacting Ms.Harvey at the Bar’s Access to Justice Department at(801) 297 7027. Volunteers will take a briefelectronic survey inquiring into areas of interest,experience, and location. The PBC will use thisinformation to match attorneys with those in needof pro bono services.

Private Guardian ad Litem Program

Another opportunity that the Bar is promoting is theopportunity to become a private guardian ad litem(“PGAL”). This is an extremelyworthy program. The PGAL programis designed to help at-risk childrenhave the best possible chance ofsuccess in childhood in life.

In cases involving child abuse orneglect or where custody is an issue,minor children often need to havetheir interests heard. Utah CodeSection 78A-2-228 authorizes thecourt to appoint a PGAL “to representthe best interests of [a] minor child” incertain district court actions where thechild’s interests may not be adequatelyrepresented. Essentially, a Guardianad Litem is to stand in the shoes ofthe child and act as the child’s representative. SeeJ.W.F. v. Schoolcraft, 763 P.2d 1217, 1222 (Utah Ct.App. 1988).

Recent legislation has accelerated the need for moreeligible PGALs throughout Utah. Most of this workis pro bono, but in rare cases a court may orderother parties (usually divorcing parents) to pay thePGAL’s fees.

Any attorney having an interest is standing up forthe rights and interests of children is encouraged toapply to participate in this program. The Office ofthe Guardian ad Litem will train and certify

attorneys to work in the PGAL program. Anapplication and training materials can be found athttp://www.utcourts.gov/specproj/casa/pgal/. Afteran attorney is determined to be eligible to serve as aPGAL, district court appointments will be assigned.For more information on the PGAL Program, seepage 7.

Modest Means Lawyer Referral Program

Not all individuals who are unable to afford anattorney live below the poverty level; it includes asizable portion of the middle class. Theseindividuals typically cannot afford an attorney’sassistance at market rates and feel compelled to

navigate a complex and intimidatinglegal system alone. They attempt toresolve their legal programs withoutthe advice, expertise, and confidencean attorney can provide. Recently,Utah State Bar President Lori Nelsonstated: “Programs and services likepublic defenders, Utah Legal Services,Legal Aid of Utah, the Disability LawCenter, and legal clinics throughoutthe state admirably provide limitedlegal representation for the poorestmembers of our community but, for alarge segment of the middle class,obtaining affordable legal services ismore difficult.” (Message from Pres.

Lori W. Nelson, e.Bulletin for February 2013.)

To make attorneys more affordable and accessible tothis group, the Utah State Bar Commission isstarting the Modest Means Lawyer Referral Program.This program is designed to assist individuals whoearn too much to qualify for free legal services, butwho cannot afford the attorney fees typically chargedby attorneys. The Modest Means program makes anaffordable attorney available to these individuals.Modest Means refers these individuals to attorneyswho have signed up for the program and agreed tobe paid at a reduced rate. Like the “Lend a ‘LearnedHand’” pro bono program, Modest Means matches a

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Continued from page 1

“Any attorneyhaving an interestis standing up for

the rights andinterests of children

is encouraged toapply to participatein this program.”

President’s Message

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President’s Messagepotential client’s needs with the experience, expertise,and location of a participating attorney. Eachparticipating attorney designates the areas of law inwhich the attorney will accept cases and the countiesin which the attorney is willing to appear.

Attorneys participating in the Modest Meansprogram do not render legal services for free.Rather, the participating attorneys agree to renderlegal services for these individuals at a discountedrate. This program is perfect for individualsattempting to establish a practice, develop a clientele,or gain experience in a legal area.

You can find more information about the ModestMeans program athttp://www.utahbar.org/modestmeans/. Watch formore information to be forthcoming about this newprogram and for a kickoff event that will occur inthe near future. If this program is suited to yourpractice or may assist you in launching your career, Iencourage you to get involved with this program.

Mandatory. This is a word that grabsthe attention of attorneys. DebraMoore, the DistrictCourt Administratorwith theAdministrative Officeof the Courts, kept theattention of the packed

house at the Litigation SectionFebruary Rise & Shine as she spokeabout E-Filing in State Courts. Thosein attendance received valuableinformation and advice about electronicfiling which is mandatory April 1,2013.

Although the date falls on April Fool’s day, it’s nojoke. If you try to file paper documents on April 1,

2013 in the district court, they will notbe accepted for filing. The Board ofDistrict Court Judges has decided thatno grace period or other exceptions tothe mandatory e-filing rule will beallowed. The rule will be strictlyenforced on the effectivedate. Documents left in a night dropbox or received in the mail that aretime-stamped or postmarked after11:59 p.m. on March 31 may bedestroyed.

ByHeather Thuet

Debra Moore

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Clark R. NielsenPractitioner ProfileCommitted To Service

Clark Nielsen accepted one of hisfirst “private guardian ad litem”cases in 2005. His client was a 5-year-old boy who lived with hismother and whose father was inprison. The child’s maternalgrandfather had petitioned the

Court to allow the grandfather to adopt the child. Ifgranted, the adoption would have resulted in thechild having two parents with a father/daughterrelationship to each other.

With the child’s imprisoned father uninterested inthe proceeding, there was no opposition to theunusual petition and no one to speakout on behalf of the child. Faced withthis concern, the Court appointed aprivate guardian ad litem to representthe child’s interests in the case. Aftercompleting his investigation, includingconsultation with expert childpsychologists, Clark made hisrecommendations, which were adoptedby the Court and accepted by thepetitioners.

This case is a great example of the needfor private guardians ad litem in Utah.And it is one of many examples of howClark Nielsen has used his legaltraining to step up and serve.

Why Law School?

Clark grew up on a five-acre “farm” in Salt LakeCity, one of ten children of Arthur and Vera Nielsen.The “farm” kept Clark busy through most of hisyouth, taught him the value of hard work, gave himan affinity for the land and animals. Later, he andhis wife raised their own six children there.

Clark’s first ambition was to become a Montanacowboy. But after deciding it would be tough tomake a living that way, Clark chose the law. Clark’sfather was a prominent Salt Lake attorney for manyyears, and one of the founders of what became theNielsen & Senior law firm. Clark admired his fatherand the service he had given to clients andcommunity.

It also helped that Clark was recruited to be part ofBYU’s highly-touted charter class of 1976 by noneother than Dean Rex Lee. Clark enjoyed law schooland has maintained many good friendships fromthose days.

Law Practice and Professional Service

Clark began his legal career at Nielsen,Conder, Hansen and Henriod. As anassociate, he ended up writingnumerous briefs, and naturallydeveloped an expertise in appellatebrief writing and appellate advocacy.

In 1985 the Utah Supreme decided tohire a new staff attorney. Clarkapplied and got the job. When theUtah Court of Appeals was firstformed in 1987, the Chief Justiceasked Clark to help the new appealscourt get off the ground as a staffattorney for that Court.

Clark re-joined some of his dearestfriends and mentors, Joe Henriod and StephenHenriod in private practice in 1992 when theyformed a new firm of Henriod and Nielsen. Clarkcontinued his appellate work and, under JoeHenriod’s mentorship, also took up a family lawpractice. Clark’s decision to take up family law wasdriven in large measure by his desire to serve a partof the community that he felt was underserved.

“Some of Clark’smost rewardingprofessional and

personalexperiences havebeen mentoringteenage children

who were hisguardian ad litem

clients”

ByKeith Call

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Continued from page 4Practitioner ProfileAlthough he has found family law work is stressfulfrom time to time, he knows his clients appreciatehis service. “I had never received a thank you cardfrom my corporate clients,” he notes, obviouslyimplying that his family law clients occasionallyexpress their thanks for Clark’s valuable help indifficult circumstances.

When Stephen Henriod became a Third DistrictCourt Judge and Joe Henriod slowed down hispractice toward retirement, Clark practiced on hisown for a few years and eventually joined SmithHartvigsen in 2005, where he now practicesappellate and family law, property and generallitigation. Service and mentoring continue to behallmarks of Clark’s work, as well ashallmarks of Smith Hartvigsen. “I feela little like a duck out of the water,” hesays, “in a water law firm.” He hasserved on the Utah Supreme CourtAppellate Rules Committee, UtahSupreme Court Disciplinary RulesCommittee, the Utah Supreme CourtDisciplinary Panel Committee and asthe Utah Bar Appellate Section Chair.

Mentee and Mentor

Clark recognizes the important rolegreat mentors have played in his life.He credits his father for teaching himto work hard, love the law and love others. Hespeaks fondly of his partner and mentor, JoeHenriod, and the important role Joe played in hiscareer development. Stephen Henriod and manyother contemporaries have served as importantsounding boards, examples and trusted friends.

Clark is returning the favor to many others. Inaddition to mentoring numerous young lawyers,some of Clark’s most rewarding professional andpersonal experiences have been mentoring teenagechildren who were his guardian ad litem clients. Hespeaks fondly of visiting his youth clients at athleticevents and practices, and even reading to them atschool. Clark even watched two youth clients faceeach other in the state football playoffs. “It is veryrewarding to see these clients do well and achievesome success in life, despite the challenges of brokenhomes,” he says.

Clark Nielsen is a great example of someone whoenjoys using his legal skills to serve others, including

clients, the Bar and the community.

Clark R. Nielsen

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The Litigation Section is proud to announce a newinitiative to help save at-risk children in ourcommunity.

Every year, thousands of Utah children findthemselves caught up in social and judicial systemsthey do not understand and cannot control. Suchchildren are often caught in the middle of difficultfamily problems, including divorce, custody andprotective order proceedings.

Occasionally, a guardian ad litem is appointed torepresent the interests of the child in domestic andother types of cases. These guardians ad litem play acritical role in helping children navigate the judicialprocess, and to make sure their interests and voicesare heard andconsidered by thecourts. Children inthese dire situationsare sometimesrepresented by theUtah Office ofGuardian Ad Litem.However, because ofrecent funding cuts,the need for helpfrom private attorneyshas become critical.

The LitigationSection is out to helprecruit and trainattorneys to become private guardians ad litem forUtah District Courts. Because of funding cuts, as ofJuly 1, 2013 through June 30, 2014, the Office ofGuardian ad Litem will only be appointed toprotective-order cases and cases in which the partiesallege abuse or neglect and are determined by thecourt to be indigent. There are hundreds of othercases where children desperately need goodrepresentation, such as cases involving issues ofcustody and parent-time. As of July 1, 2014(assuming funding is not reinstated by theLegislature), the Office of Guardian ad Litem will

not represent any children in any District Courtcases, including even protective order and abuse orneglect cases. Children in these cases will beunrepresented unless private guardians ad litem stepup. That is where you can make a huge difference inthe life of a child.

By registering to serve as a private guardian ad litem,you can be appointed to represent the interests ofchildren in District Court cases. The Court canorder the parents to pay fees for your services. Youmay also be asked to serve pro bono as needed.And, provided you perform in such capacity withinthe scope of your statutory and ethical duties, youare immune from civil liability that could result from

your service.

Guardian ad litemwork is notcomplicated and iswell suited tolitigators, even if youdo not haveexperience in thisarea of law. Trainingis provided for allwho participate. Toaccess the program,go to http://www.utcourts.gov/specproj/casa/pgal. Also,watch for Litigation

Section CLE programs in April that will give youinformation and a head start on becoming a privateguardian ad litem. You can direct specific questionsto Emily Brown at emilyb@utcourts.gov or Keith Callat kcall@scmlaw.com.

Utah’s children need you. Please help us step up andbuild a better future for the children of our State!

Pro Bono Saving Our Communtity’s Children–You Can Help

PrivateGuardianAd LitemProgram

Utah’schildrenneed YOU.

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UTAH STATE BAR - LITIGATION SECTION

INTERMEDIATE LEVEL COURSE

Saving Utah’s Children - Becoming a Private Guardian ad Litem

Date: Tuesday, April 16, 2013

Time: 12:00pm - 1:00pm

Location: Kirton McConkie

60 E. South Temple, 16th Floor

Parking: Validations provided for City Creek East Lot (enter from State Street)

Presenters: Hon. Kate A. Toomey, Third District CourtCraig M. Bunnell, Office of Guardian ad Litem

Cost: Free for Litigation Section members

$20 for others

Lunch is included.

CLE Credit(s): 1 Hr. CLE

RSVP: TO REGISTER: Register ONLINE or email RSVP to sections@utahbar.org.You can also register by faxing 801-531-0660 by April 13th. Please

include your name and bar number on all registrations.

Private Guardian ad LitemPro Bono

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“What I Wish The Other SideUnderstood Regarding Mediation”Quarterly Luncheon

Section sponsored CLE at the Kick Off Event for April 11, 2013Modest Means Program (details to follow) at 3:00pm-4:00pm

Rise & Shine-Beyond the Boiler Plate: Effective Written Wednesday, April 24th,Discovery Under the New Rules 2013 at 8:00 am.

Becoming a Guardian ad Litem in District Court, April 16, 2013Craig M. Bunnell and Judge Kate A. Toomey 12:00pm-1:00pm

First Biennial Litigation Section Trial Academy Thursday, May 16th andFriday May 17th, 2013

Summer Convention, Snowmass, Colorado July 17-20, 2013

On January 14, 2013, members of the Bar were ableto enjoy some lunch and obtain CLE credit whilelearning from a combined 110 years of legalexperience. At the Litigation Section’s quarterlyluncheon, attendees listened to a panel discussionfrom three lions of the Bar; Judge William Bohling,Gregory J. Sanders of Kipp and Christian, andJeffery Eisenberg of Eisenberg, Gilchrist & Cutt,moderated by Patrick C. Burt of Kipp and Christian.

The discussion theme was “What I Wish The OtherSide Understood Regarding Mediation.” Mr. Sandersexplained what plaintiffs do wrong at mediation, Mr.Eisenberg explained what defendants do wrong andJudge Bohling explained what all attorneys dowrong.

Among the great advice given, Judge Bohlingexhorted attorneys to take more time looking at theircase from 10,000 feet. Attorneys should always entera mediation having considered their case from start

to finish and have a firm grasp not only on issues ofliability, but on the true amount of damages at issue.

Mr. Sanders cautioned that attorneys should neverbring new, higher settlement numbers or new legaltheories to a mediation. By the mediation, theparties have already evaluated the case and come inwith a set range of settlement amounts. Newnumbers or theories start the mediation off headingin the wrong direction.

Mr. Eisenberg suggested that counsel communicatebefore a mediation so that they can hit the groundrunning once mediation begins. Counsel shouldexchange demands, legal theories and defenses aheadof time to make the mediation move more smoothly.Those that attended the panel discussion benefittedfrom over a century’s worth of legal experience. Ifyou missed it, please plan on participating in thenext Litigation Section CLE.

Upcoming Events

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Opinion WatchThe Utah Supreme Court andCourt of Appeals have recentlyaddressed boundary disputes,exceptions to the GovernmentalImmunity Act, appellate procedureand preservation, and potentialliability for the actions ofindependent contractors on business

premises. Opinion Watch would like to thankZimmerman Jones Booher and Parsons Behle &Latimer for their summaries of those decisions setforth below. If you would like to submit your ownsummary of an important Utah state or federal casefor publication in The Zealous Advocate, please emailHeather Sneddon at hsneddon@aklawfirm.com.

Vandermeide v. Young: Do Good Fences ReallyMake Good Neighbors?

Filed February 7, 2013

Summary by Noella Sudbury of ZimmermanJones Booher LLC

Vandermeide v. Young, 2013 UT App 31, arisesout of a boundary dispute over a six-foot fencebetween two neighbors. Id. ¶ 1. The Vandermeidesbuilt the fence. Id. ¶ 2. They determined thelocation for the fence based on a conversation with aneighbor who had recently surveyed his property andon a metal post cemented into the ground. Id. Atfirst, the Youngs said nothing about the fence, butlater they decided to hire a surveyor to determine theboundary line. Id. Strangely, the surveyordetermined that the fence was not on either theVandermeides’ property or the Youngs’ property, butwas instead in the middle of the properties in an areahe called “no-man’s land.” Id. ¶ 3.

A couple of years later, Mr. Young tore through thefence with a tractor and a sledge hammer because hebelieved the fence was wrongly situated on propertybelonging to his mother. Id. ¶ 5. The Vandermeidessued Mr. Young under a variety of theories,

including trespass to chattels. Id. ¶ 6.TheVandermeides prevailed in the trial court on thetrespass to chattels claim. The Youngs appealed,asserting nine claims of error. Id. ¶¶ 1, 6.

The court of appeals concluded that eight of theYoungs’ claims on appeal were based upon factualfindings entitled to deference under the “clearlyerroneous” standard of review or were otherwiseprocedurally barred due to lack of preservation,inadequate briefing, failure to marshal, or failure toidentify and confront the trial court’s reasoning. Id.¶¶ 7-10, 22-39. This left only one claim [1] for thecourt of appeals to address on the merits—thereformation of deed claim.

Mr. Young asked the trial court to reform his deedbecause he claimed that the grantors in his chain oftitle intended to convey him the disputed property.Id. ¶ 11. “Reformation of a deed is appropriatewhere the terms of the written instrument aremistaken in that they do not show the true intent ofthe agreement between the parties.” Id. ¶ 12(quoting RHN Corp. v. Veibell, 2004 UT 60, ¶ 36,96 P.3d 935). A deed may be reformed based on a“mutual mistake of the parties” or upon a showing of“ignorance or mistake by one party, coupled withfraud by the other party.” The proponent of thereformation theory has the burden to prove by “clearand convincing evidence” that the deed waspremised on a mutual mistake of fact. Id.

The trial court found that the Youngs “failed toprove fraud or mutual mistake by the parties to anyof the deeds in their chain of title” because theyfailed to show any evidence supporting their theorythat the grantors intended to convey the property ina way contrary to the language of the deed. Id. ¶ 14.The court of appeals concluded that this finding wasa factual one and the Youngs failed to meet theirburden on appeal to show that it was “clearlyerroneous.” Id. ¶ 19.

(Continued on page 12)

Compiled ByHeather Sneddon

Beyond the Boiler Plate: Written Discovery Under the New Rules

As tempting as it is, using cut and paste “boiler plate” written discovery may not advance your case. After thenew rules it is even more important to retool your discovery, especially if you are handling a Tier II case inwhich you are greatly limited in the number of interrogatories. In this one-hour CLE, we will hear from theplaintiff ’s side, defense side, and even from the judiciary as to what makes good discovery and how you canuse the new rules to your benefit.

Wednesday, April 24th, 8:00 am. Breakfast will be served. More details to come in our mailer.

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Upcoming Events

The Litigation Section is proud to sponsor the First Biennial Litigation Section Trial Academy this May atthe Bar and Justice Center. This intensive two-day event is ideal for those new to litigation or for youngerlawyers. Using NITA techniques, lectures, demonstrations by the experts, and hands-on experientiallearning by participants on Thursday, attorneys will learn the basics of trial practice. Thursday’s sessionis limited and will introduce attorneys to direct and cross examination, objections, foundation, andadmitting evidence at trial. Thursday will feature hands-on workshops in the afternoon with local expertsand members of the judiciary offering advice and assessing participants. The day will close with a specialnetworking reception with our faculty and other participants.

Friday will feature lectures and demonstrations by faculty on openings, jury selection, expertexamination, closings, and jury instructions. This day will be open to more participants.

The Section hopes to sponsor this event every two years, with a smaller trial skills workshop onalternating Fall Forums.

Cost for this event will be announced shortly; folks can register for one or both days. Advanced readingmaterials will be provided. Be sure not to miss this special event!

First Biennial Litigation Section Trial Academy:Thursday, May 16th and Friday May 17th

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What's New at the University of Utah?Campus NotesOn February 19, 2013, ProfessorRobert Adler was appointed InterimDean of the University of Utah S.J.Quinney College of Law. ProfessorAdler, the College’s James I. FarrChair, joined the faculty in 1994and has served in numerous roles,including Associate Dean for

Academic Affairs and chair of the new buildingcommittee. Adler’s appointment will becomeeffective July 1, 2013, contingent upon approvalfrom the U’s board of trustees. He succeeds HiramChodosh, who is leaving to become president ofClaremont McKenna College.

The University of Utah College ofLaw ranked among the top 18% ofU.S. law schools according to newrankings compiled by The NationalJurist. The magazine’s February issueincludes a story, “Building a BetterRanking,” that focuses on fourcategories—postgraduate success,student satisfaction, affordability anddiversity--to assess the nation’s best lawschools. The College of Law wasranked 29th among the 157 lawschools included in the list. TheCollege of Law did particularly well inthe areas of employment and theSuper Lawyers grade. It also excelledin the Rate My Prof category, in the areas ofProfessor Availability and Affordability.

Jess Hofberger, 2004 alum, is the new director of theProfessional Development Office. He returns to thecollege with a varied legal background includingtime with Meuleman Mollerup in Boise, an 18-month deployment with the U.S. Army, a yearclerking for Justice Ronald Nehring at the UtahSupreme Court, several years practicing commerciallitigation with Anderson and Karrenberg in Salt Lake

City and just over three years as a Department of theArmy civilian attorney in Grafenwoehr, Germany.

Utah OnLaw, a new online companion to the UtahLaw Review, is accepting manuscript submissions. Inthe Fall of 2012, Utah Law Review launchedOnLaw, an online-only publication designed topromote dialogue regarding current legal topics bypublishing pieces that are shorter and less-footnotedthan those typically found in our print journal.Articles may be submitted in any field of legalscholarship, preferably articles with a Utah focus andmay be submitted by professors, practitioners, recentgraduates and law students. They encourage the

following types of submissions(preferably between 3,000 – 8,000words):

• Stand-alone articles, shorter andmore focused than traditionalsubmissions,

• Responses to already publishedarticles, whether in Utah LawReview or elsewhere;

• Updates or recent developments toalready published articles; and

• Blog post-type commentaries.

To submit a manuscript, please emailKarina Sargsian(Karina.Sargsian@law.utah.edu), the

Executive Online Editor, with the followinginformation:

• A cover letter with your contact information;

• A resume or curriculum vitae; and

• A copy of the manuscript in Microsoft Wordformat.

For more information about the S.J. QuinneyCollege of Law please visit:http://today.law.utah.edu/

“The University ofUtah S.J. QuinneyCollege of Law is

among the nation’smost innovative

law schools,according to aNational Jurist

article.”

ByNicholas Caine

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Continued from page 9Opinion Watch(Continued from page 9)Despite this determination, the court of appealsconcluded that reversal and remand was appropriatebecause the trial court’s ruling was “internallyinconsistent.” Id. ¶ 20. The trial court refused toreform any deeds in the Youngs’ chain of title,leaving the title to the property “as it appears in theirdeed.” Id. The court of appeals concluded that thisruling would seem to leave title to the property in awoman named Viola Squires—the last person in thechain of title whose deed included the disputed strip.Id.

The problem with this determination is that earlierin the litigation, the trial court dismissed Ms.Squires from the case after finding that she had soldthe parcel and no longer had any “right, title,interest, or estate” in it. Id. Thus, the trial court’sruling left “title to the property in limbo.” Id. Inother words, the trial court’s conclusion at the end ofthe case supported a finding that Ms. Squires ownedthe property, but at the beginning of the case, thetrial court concluded that she did not. Id. ¶ 21.Based on this inconsistency, the court of appealsremanded the case to the trial court to reconcile itsfindings “and to take whatever additional action thecourt deems necessary to that end.” Id.

Practice Pointer: This case reaffirms the court ofappeals’ commitment to the application ofprocedural bars and emphasizes the importance ofadequately addressing the reasoning of the trialcourt’s decision. Advocates should carefully readUtah Rule of Appellate Procedure 24(a)(9) beforefiling their briefs to ensure compliance with the rule.This burden includes citing to the record,confronting the trial court’s ruling and analysis,marshaling the evidence that supports the challengedfactual findings, and citing to legal authority withadequate argument and analysis to support theclaims on appeal.

http://www.utcourts.gov/opinions/appopin/vandermeide020713.pdf

http://www.utahappellateblog.com/2013/02/18/vandermeide-v-young-do-good-fences-really-make-good-neighbors/

________________________________________

[1] The Youngs also argued on appeal that the Vandermeides werenot entitled to an award of damages for the Youngs’ destruction ofthe fence because the Vandermeides did not own the property andan “essential element of a claim for trespass is invasion of theplaintiffs property.” Id. ¶ 23. Although the court of appealsconcluded that like many of the other claims, the Youngs failed toaddress the trial court’s ruling on the issue, the court of appeals alsoconcluded that in any event, the claim lacked merit because thetrespass to chattels claim was based on the Vandermeides’ ownershipof the fence, not the strip of land on which it stood. Id.

Glaittli v. State: The Natural Condition Exceptionto the Governmental Immunity Act.

Filed January 10, 2013

Summary by Joe Stultz of Parsons Behle &Latimer

In Glaittli v. State, 2013 UT App 10, the UtahCourt of Appeals affirmed the trial court’s dismissalof a negligence action against the State of Utah,agreeing with the trial court that the State wasimmune from suit under the “natural condition”exception to the waiver of immunity provided in theGovernmental Immunity Act of Utah (“GIAU”). Inthe case, Glaittli was injured as he was trying tolengthen the lines on his boat that was docked at amarina at the Jordanelle Reservoir to prevent damageto his boat. Glaittli alleged that the State caused hisinjuries by its negligent failure to adjust the docklevel with the water levels by turning the winchhandles; failure to warn him of an unsafe conditionat the docks; and failure to properly secure the dockson the day of the accident. Glaittli also alleged thatthe State negligently allowed a hazardous conditionto continue to exist by failing and refusing toconstruct a breakwater in the area of the marinawhere Glaittli’s boat was docked.

The State responded with a motion to dismiss forfailure to state a claim based on the GIAU, arguingthat Glaittli’s injuries fell within the “naturalcondition” exception to the waiver of immunity. SeeUtah Code Ann. § 63G-7-301(5)(k) (governmentalimmunity not waived when the “injury arises out of,in connection with, or results from . . . any naturalcondition on publicly owned or controlled lands”).The trial court agreed that the “natural condition”exception applied and dismissed the case.

In affirming the trial court’s ruling, the appeals courtfirst rejected Glaittli’s argument that the naturalcondition exception was inapplicable to an injurycaused as a result of a defective public improvementbecause once manmade structures are built onnatural land or water, they become “publicimprovements,” and are no longer “naturalconditions.” The court ruled that such a readingwould misconstrue a plain reading of section 63G-7-301(5)(k) because that section states that it isapplicable to subsections (3) and (4) and subsection(3) includes a reference to man-made structures.

Glaittli also argued that the wind that caused thewaves was an atmospheric condition and not anatural condition and thus the natural conditionexception did not apply. In rejecting this argument,the court of appeals recognized that the UtahSupreme Court held that a gust of wind was not anatural condition and found that the naturalcondition exception did not apply in Grappendorf v.Pleasant Grove City, 2007 UT 84. In theGrappendorf case, a “violent gust of wind” rippedPleasant Grove City’s moveable pitching moundweighing several hundred pounds from the straptethering it to a chain link fence, and propelled itthrough the air, striking and killing a passerby. Thecourt distinguished Grappendorf from the case athand, holding that it was the water and not the windthat caused the injuries in this case: “[W]e hold that

the water upon which the wind acted was a naturalcondition.” Finding thusly, the court then ruled thatthe trial court correctly dismissed the complaint asbarred by governmental immunity.

http://www.utcourts.gov/opinions/appopin/glaittli011013.pdf

Prinsburg State Bank v. Abundo: Preservation vs.Estoppel

Filed December 28, 2012

Summary by Clemens A. Landau of ZimmermanJones Booher LLC

In Prinsburg State Bank v. Abundo, 2012 UT 94,the Utah Supreme Court affirmed the Utah Court ofAppeals holding that the stipulations entered intobetween the parties precluded appellate review. TheCourt of Appeals dispensed of the case onpreservation grounds. The Supreme Court affirmedon an alternate ground—that Prinsburg State Bankwas estopped from challenging the district court’sresolution of the case based upon the parties’stipulations. Id. ¶¶ 17-19.

The case involved a dispute between Prinsburg andvarious individuals (“Guarantors”) who had executedpersonal guarantees for two failed loans. Id. ¶ 2. Oncross-motions for summary judgment, the trial courtruled in favor of the Guarantors on all but one issue:whether the sale conducted by Prinsburg wascommercially reasonable. Id. ¶ 5. The partiesthereafter entered into an agreement entitled“Stipulated Findings of Fact and Conclusions ofLaw” (“Stipulations”) that purported to resolve theentirety of the case. Id. ¶ 6. The parties filed theStipulations, and the district court entered finaljudgment. Id. Prinsburg appealed, reasserting itsmerits arguments.

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The Court of Appeals refused to address any of theissues presented on appeal on preservation groundsbecause “Prinsburg stipulated to the completeresolution of this matter and failed to seek relieffrom the resulting judgment in the district court.”2011 UT App 239, ¶ 11, 262 P.3d 454. Central tothe Court of Appeals’ ruling was that issuesregarding the intended scope of the stipulationagreement were questions of fact that should havebeen directed to the trial court in the first instance.Id. at ¶¶ 7, 9 (“If Prinsburg believed that thejudgment of complete dismissal exceeded the scopeof the parties’ agreement, it should have sought relieffrom the judgment in the district court on thatbasis.”).

The Utah Supreme Court essentially agreed with thisaspect of the Court of Appeals’ analysis, holding that“[t]he Stipulations are binding on the parties and thecourt unless Prinsburg shows that ‘certain conditions’exist under which the Stipulations may be set aside.”2012 UT 94, ¶ 16. Further, the court agreed that“Prinsburg cannot make this showing because itnever filed a motion in the district court seekingrelief from the Stipulations.” Id.; see also id. ¶ 14(“[T]he party seeking relief from the stipulationmust request it by motion from the trial court.”).

But the court disagreed with the language of theCourt of Appeals’ opinion that could be read asstanding for the proposition that all of the meritsissues were unpreserved. The court held that onlythe single issue the trial court did not have anopportunity to rule on was unpreserved. Id. ¶ 18.The remaining issues were preserved because the trialcourt did have the opportunity to rule on them. Id.¶ 19. But even though the remaining issues werepreserved, the court held that the Stipulationsestopped Prinsburg from raising those issues onappeal.

Both courts seemed to agree that the ultimate reasonthe Stipulations were binding (and could thereforeserve as a basis for estoppel) was Prinsburg’s failureto raise fact issues regarding the intended scope of

the Stipulations by motion in the trial court.Compare 2011 UT App 239, ¶¶ 7, 9-10, with 2012UT 94, ¶¶ 14, 16. Therefore, although it is certainlytrue that “a postjudgment motion is not a necessaryprerequisite to filing an appeal” in most instances,see 2012 UT App 239, ¶ 17 n.27 (citing Sittner v.Schriever, 2000 UT 45, ¶ 16, 2 P.3d 442), it seemsequally true that in this circumstance, where adistrict court enters a final judgment based upon astipulation by the parties, the party challenging thatjudgment on appeal does have to file a motion(which is necessarily postjudgment) in order topreserve the argument that it should not be estoppedby the stipulation on appeal.

In any event, the court concluded that thedistinction between its view (Prinsburg is estoppedfrom presenting preserved issues because it failed toseek relief from the stipulation below) and the Courtof Appeals’ view (Prinsburg failed to preserve itsarguments because it failed to seek relief from thestipulation below) was one worth making. This mayindicate a desire to chart a less expansive role forpreservation, or a desire to reemphasize thatordinarily, once a trial court has had the opportunityto rule, no other motions (postjudgment orotherwise) are required for preservation purposes.

The court also reemphasized the importance of twoother procedural principles. First, the court refusedto consider Prinsburg’s other arguments becausePrinsburg failed to include them in the petition forwrit of certiorari. 2012 UT 94, ¶¶ 9, 17 n.26.Second, the court refused to consider argumentsfrom both parties on the ground that the Court ofAppeals failed to address them and no motions forrehearing had been filed. Id. ¶¶ 17 n.26, 21. As aresult, Guarantors lost the right to fees and costsincurred while the case was before the Court ofAppeals. Id. ¶ 21 (“[B]ecause the Guarantors did notchallenge the court of appeals’ failure to rule on theissue, there is no basis for revisiting it oncertiorari.”).

http://www.utcourts.gov/opinions/supopin/Prinsburg

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1294122812.pdf

http://www.utahappellateblog.com/2013/01/19/prinsburg-state-bank-v-abundo-2012-ut-94-preservation-vs-estoppel/

Berrett v. Albertsons Inc.: Liability forIndependent Contractor’s Actions on BusinessPremises.

Filed December 28, 2012

Summary by Joe Stultz of Parsons Behle &Latimer

In Berrett v. Albertsons Inc., 2012 UT App 371,the Utah Court of Appeals reversed the trial court’sgrant of summary judgment in favor of Albertsons.The case involved a personal injury claim originallybrought by Irene Berrett and her husband, and latercontinued by the husband, Irene Berrett’s heirs, andher estate after Irene Berrett died. Irene Berrett wasinjured when she fell twenty feet into an openmanhole while walking to her car in an Albertsonsparking lot. The manhole was open because A-1Septic Tank Services was servicing a grease traplocated approximately twenty feet below the surfaceof the parking lot. At completion of discovery,Albertsons moved for summary judgment on theground that it owed Irene Berrett no duty and thetrial court granted the motion, concluding thatAlbertsons was not vicariously liable for the acts ofA-1.

The Court of Appeals reversed the trial court’sruling, first finding that a jury could conclude thatAlbertson’s knew or was on notice of a hazard to itsbusiness invitees. In making this ruling, the courtstated that an employer is generally not vicariouslyliable for the acts and omissions of its independentcontractors, but that a business owner has a non-delegable duty to keep the premises reasonably safe

for business invitees. Under the temporary unsafecondition theory of liability, the court concludedthat the Berretts had alleged sufficient facts to showthat Albertsons was on actual or constructive noticeof the temporary hazard created by the openmanhole and had sufficient time to remedy it.

In its decision, the Court of Appeals also held thatSection 413 of the Restatement (Second) of Tortsapplies as part of the common law in Utah, andpotentially applied to the case. Under Section 413,one who employs an independent contractor to dowork which should be recognized as creating apeculiar unreasonable risk unless special precautionsare taken may be liable if the employer: (a) fails toprovide in the contract that the contractor shall takesuch precautions, or (b) fails to exercise reasonablecare to provide in some other manner for the takingof such precautions. The court ruled that thequestion of whether the present case involved a riskrequiring only “routine precautions,” of a kindwhich any careful contractor could reasonably beexpected to take, or a risk that posed a special dangerto those in the vicinity, arising out of the particularsituation created, thus implicating Section 413, wasto be resolved by the jury rather than the court.

The Court of Appeals also held that the version ofthe survival statute in effect at the time of the injuryrather than at the time of Irene Berrett’s deathcontrolled. This was important because the latterversion permitted the recovery of general damageswhile the former did not.

http://www.utcourts.gov/opinions/appopin/berrett122812.pdf

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May 9-11, 2013Southern Utah Federal Law Symposium

Sixth Annual

Southern Utah Federal Law SymposiumPlease join us at this year’s annual Southern Utah Federal Law

Symposium, which will be held at the beautiful Courtyard Marriott insunny St. George on May 9-11, 2013.

This year’s speakers will include many of Utah’s Federal Judges,including Chief Judge Stewart, Judge Nuffer, Judge Waddoups,Judge Kimball, Judge Benson, Judge Thurman, and others.  Theconference will include a Thursday evening reception atTuacahn, including musical entertainment, food and an ethicspresentation by nationally renowned (and incredibly funny)speaker Sean Carter.

On Friday, we will have a full day of CLE, primarily featuringUtah’s Federal Judges.  Judge Thomas Griffith of the DC CircuitCourt of Appeals will be our Friday lunch keynote speaker. 

For you golfers, on Saturday, May 11th, there will be a scramblegolf tournament at the beautiful Coral Canyon Golf Course.You are free to arrange your own foursomes, or we will matchpeople up. Prizes will be awarded.Registration information will soon be available.  We hope to see you in St. George!

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Message from the EditorDo you have ideas, questions orcomments about this newsletter? We want to hearfrom you, our members. Pleasesend your questions orcomments to editor NicoleFarrell at

nfarrell@parsonsbehle.com.

OfficersChair - Ryan FrazierChair-Elect - George BurbidgeTreasurer - David CastleberrySecretary - Heather Thuet

MembersSammi Anderson Rod AndreasonPatrick Burt Nicholas Caine, ex officio member (U of U)Keith A. Call Nicole G. Farrell Shane GosdisJon HafenChristian HansenHon. Ryan HarrisKent HolmbergRandall Jeffs

Richard KaplanChristian KesselringHon. Denise P. LindbergElaina MaragakisBrad Masters, ex officio member (BYU)Alec McGinnBryan PattisonIsaac D. PaxmanHon. Stephen RothEmily SmithHeather SneddonMichael StahlerDan SteeleJoe StultzPatrick TannerHeather ThuetJenifer TomchakHon. Kate Toomey

Executive Committee Members

EditorNicole G. Farrell