Trial Reports
2008

Personal Injury

PERSONAL INJURY CLAIM
Case Type – AA, BA; automobile/bicycle accident
Case Name – Robin Reid vs. Daryl Roberts
Case Number – 060914319
Court/Judge – 3rd District/Faust
Verdict/Settlement – Jury verdict
Date – 09/08
Amount – The jury returned a verdict of no cause of action. They found that defendant was negligent, but concluded hat his negligence was not the cause of plaintiff’s injuries. Pre-judgment offer of judgment by defendant (not accepted): $500.00. If plaintiff does not accept a settlement offer and then fails to prevail at trial, Utah law says plaintiff must pay defendant’s attorney’s fees and costs. These fees and costs have not yet been specified in this case.
Injuries – Plaintiff suffered neck, left shoulder and right thigh injuries.
Attorney(s) - Plaintiff – Michael A. Katz of Siegfried & Jensen
Attorney(s) - Defense – Lloyd R. Jones of Petersen & Associates
Expert Witness(es) - Plaintiff – Plaintiff’s treating physician testified.
Damages – Plaintiff claimed unspecified past and future medical expenses and past wage loss.
Facts/Contentions – Plaintiff was riding her bicycle on southbound 2700 West. She claimed that defendant suddenly pulled out of a parking lot at 4650 South without looking and struck plaintiff.
Defendant admitted that the accident occurred, but denied liability. He claimed he was completely stopped when plaintiff, without looking, rode her bicycle into his car.

CONTRACT DISPUTE
Case Type – BC, MS; Breach of contract claim, miscellaneous (mechanic’s lien)
Case Name – Cap-Tone, Incorporated vs. Tradewest Homes, Incorporated; Trade-West Development Corporation; and Bell, Pruitt, Watje, Reppert, Virrey, Auerbach, and Yang, individual property-owners
Case Number – 080912114
Court/Judge – 3rd District/Dever
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendant Tradewest in the amount of $113,312.91, which included $14,162.49 in accrued pre-judgment interest at 18% per annum, $292.75 in attorney’s fees and $302.67 in costs. Post-judgment interest shall accrue on this judgment at the rate of 18% per annum until it is satisfied.
Attorney(s) - Plaintiff – Mark L. Poulsen of Nelson, Snuffer, Dahle & Poulsen
Attorney(s) - Defense – Trade-West Development Corporation returned a pro se answer.
Damages – Plaintiff claimed defendant Tradewest Homes had a balance of $98,454.00 outstanding on the account.
Facts/Contentions – Plaintiff claimed defendant Tradewest homes failed to pay for stucco materials, labor and services which plaintiff provided to defendant Tradewest Homes on account. Plaintiff filed a mechanic’s lien on the properties where the stucco was installed. Plaintiff named the individual defendants, owners of the properties where the stucco was installed, as having an interest in the liened properties.
Defendant Trade-West Development Corporation filed a pro se answer, denying liability, Defendant Trade-West Development claimed that it was a separate entity from defendant Tradewest Homes and did not receive any stucco materials, labor or services from plaintiff.
Plaintiff moved to strike defendant Trade-West Development’s answer. The court granted the motion on grounds that Utah law prohibits corporate entities from appearing pro se. Under the law, corporate entities must retain legal counsel to represent them in court.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Keybank National Association vs. F J Footings, Incorporated; Jeffrey C. Austin; and Julie A. Austin
Case Number – 080913889
Court/Judge – 3rd District/Faust
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendants in the amount of $53,439.10, which included $2,185.70 in accrued pre-judgment interest at two different rates per annum, $1,174.75 in attorneys’ fees and costs, and $100.00 in late charges. Post-judgment interest shall accrue on this judgment at the rate of 11.75% per annum until it is satisfied.
Attorney(s) - Plaintiff – Nathan S. Dorius and Andrew V. Collins of Bennett, Tueller, Johnson & Deere
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendants had a balance of $49,968.75 due on the note.
Facts/Contentions – Plaintiff claimed defendants defaulted on the repayment of a promissory note which defendant F J Footings executed in favor of plaintiff. Plaintiff named the individual Austin defendants as personal guarantors for the debt.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Celtic Bank Corporation vs. Shaler V. Smith
Case Number – 080913859
Court/Judge – 3rd District/Faust
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendant in the amount of $83,882.95, which included $1,682.52 in accrued pre-judgment interest at 18% per annum, $762.50 in attorney’s fees and $200.00 in costs. Post-judgment interest shall accrue on this judgment at the rate of 18% per annum until it is satisfied.
Attorney(s) - Plaintiff – David J. Berceau
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendant had a balance of $81,237.93 owing after the trustee’s sale.
Facts/Contentions – Plaintiff claimed defendant defaulted on a $1,500,000.00 promissory note which defendant executed in favor of plaintiff. Plaintiff claimed defendant paid the balance due on the note down to $431,238.93 before defaulting. Plaintiff seized the property purchased with the loan proceeds, sold it for $350,000.00 at a trustee’s sale and applied the sale proceeds to the outstanding balance, but the trustee’s sale proceeds were not enough to satisfy the debt in full. Plaintiff filed this suit to recover the remaining balance owing.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Jeffry Nielsen vs. Caleb Sitzmann dba Momentous Marketing, Incorporated
Case Number – 080912414
Court/Judge – 3rd District/Quinn
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendant in the amount of $17,131.59, which included $825.00 in attorneys’ fees and $247.00 in costs. Judgment shall be augmented by interest at 18% per annum until from 07/01/08 till the judgment is satisfied.
Attorney(s) - Plaintiff – Scott O. Mercer and Ryan B. Hancey of Kesler & Rust
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendant owed $16,059.59 in unpaid rent, accrued interest and late fees.
Facts/Contentions – Plaintiff claimed defendant defaulted on a three-year lease agreement. The monthly rent for the leased property was $1,072.95, with a 10% charge for any late payments.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Phyllis Montgomery vs. William Athey
Case Number – 060918936
Court/Judge – 3rd District/Hilder
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendant in the amount of $4,472.00, which included $95.00 in costs and a $57.00 service fee. Post-judgment interest shall accrue on this judgment at the statutory rate per annum until it is satisfied.
Attorney(s) - Plaintiff – Plaintiff appeared pro se.
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendant owed $4,320.00 in unpaid rent.
Facts/Contentions – Plaintiff claimed defendant defaulted on a rental agreement. The agreed rent was $500.00 per month; plaintiff claimed defendant failed to pay rent from January through October of 2006.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Steven D. Haslam vs. Jennifer Martinez
Case Number – 080916650
Court/Judge – 3rd District/Medley
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendant in the amount of $457.35, which included $17.35 in accrued pre-judgment interest at 18% per annum, $250.00 in attorney’s fees and $69.00 in costs. Post-judgment interest shall accrue on this judgment at the rate of 18% per annum until it is satisfied.
Attorney(s) - Plaintiff – John E. Cawley
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendant owed $121.00 for the goods.
Facts/Contentions – Plaintiff claimed defendant failed to pay for goods which defendant purchased from plaintiff.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – Wheeler Machinery vs. Wolverine Construction, Incorporated; and Dean R. Morgan
Case Number – 080915430
Court/Judge – 3rd District/Toomey
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendants in the amount of $4,472.00, which included $750.00 in attorneys’ fees and $143.00 in costs. Judgment shall be augmented by interest at 18% per annum until from 07/01/08 till the judgment is satisfied.
Attorney(s) - Plaintiff – Scott O. Mercer and Ryan B. Hancey of Kesler & Rust
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendant had a balance of $3,579.00 owing.
Facts/Contentions – Plaintiff claimed defendant failed to pay for equipment, parts and services which defendant purchased from plaintiff.

CONTRACT DISPUTE
Case Type – BC; Breach of contract claim
Case Name – MacBeath Hardwood Company vs. White Pine, Incorporated; and Dan Tyler
Case Number – 080914562
Court/Judge – 3rd District/Quinn
Verdict/Settlement – Judgment
Date – 09/08
Amount – The court entered judgment against defendants in the amount of $9,145.59, which included $246.86 in accrued pre-judgment interest at 18% per annum, $775.00 in attorney’s fees and $175.00 in costs. Post-judgment interest shall accrue on this judgment at the rate of 18% per annum until it is satisfied.
Attorney(s) - Plaintiff – Steven H. Lybbert
Attorney(s) - Defense – None listed
Damages – Plaintiff claimed defendants had a balance of $7,945.73 owing on the account.
Facts/Contentions – Plaintiff claimed defendant White Pine failed to pay for merchandise which defendant White Pine purchased from plaintiff on open account. Plaintiff named defendant Tyler as personal guarantor for the debt.

BREACH OF CONTRACT DISPUTE
Case Type – BC, MS; Breach of contract, miscellaneous (breach of oral settlement agreement)
Case Name – Moss; and Yanaki v. Parr Waddoups Brown Gee & Loveless; Waddoups; Hafen; and Matkin
Case Number – 20070826
Judges – Bench, Greenwood, Thorne
Opinion By – Bench
Date – 11/08
Trial Court/Judge – 3rd District/Fratto
Ruling– The Court of Appeals held unanimously that the language of the mediation agreement unambiguously prohibited the parties to the mediation from discussing any statements made during the mediation for any legal purposes whatsoever. This language included any offers of settlement of any other cases made during the mediation even though the mediation was only intended to cover the non-competition lawsuit. The Court of Appeals therefore held that the trial court erred in the breach of contract suit in allowing any testimony from the mediation. The Court of Appeals further held that the trial court in the breach of contract suit also erred by allowing Moss’s affidavit because it constituted inadmissible hearsay. The Court of Appeals reversed the trial court’s ruling in the breach of contract suit and remanded the case to the trial court for an entry of partial summary judgment in favor of appellees.
Attorney(s) - Appellant(s) – Alan L. Sullivan, James D. Gardner and Katherine Carreau of Snell & Wilmer
Attorney(s) - Appellee(s) – David W. Scofield and R. Reed Pruyn Goldstein of Peters Scofield Price
Facts/Contentions – There were three lawsuits involved in this case. Parr Waddoups and its attorneys represented a third-party company in the first lawsuit, in which the company sued Yanaki in state district court for taking proprietary information and breaching a non-competition agreement. During discovery, the Parr Waddoups attorneys sought to seize data electronically stored at the home of Yanaki and his wife Moss. The state district court authorized law enforcement officials to seize the records. Yanaki and Moss sued the Parr Waddoups attorneys and others in federal court (the second lawsuit) for violating their civil rights in the seizure.
In December of 2003, the third-party company held a mediation in an attempt to settle the non-competition suit. Before the mediation began, Yanaki and the Parr Waddoups attorneys signed a confidentiality agreement. The agreement stated that everything said during the mediation was confidential, undiscoverable and inadmissible in any court.
After the mediation, Yanaki and Moss sued the Parr Waddoups attorneys in Third District Court (the third lawsuit), claiming that the attorneys agreed orally to settle the federal lawsuit during the mediation and later breached the oral settlement agreement by failing to pay Yanaki and Moss the settlement money. In the meantime, the federal court dismissed the federal lawsuit for lack of jurisdiction.
The Parr Waddoups attorneys moved the trial court for partial summary judgment in the breach of contract suit, contending that the oral agreement, even if made, was inadmissible under the confidentiality agreement. The trial court dismissed the motion for partial summary judgment, ruling that the language of the confidentiality agreement was ambiguous.
The trial court in the breach of contract suit also admitted an affidavit from Moss, who was not invited to the mediation and did not sign the confidentiality agreement. The parties telephoned Moss during the course of the mediation and asked her to make an offer to settle the federal lawsuit. Moss stated that she understood the Parr Waddoups attorneys to have agreed orally to settle the federal lawsuit. The Parr Waddoups attorneys argued that Moss’s statements constituted inadmissible hearsay. The Parr Waddoups attorneys filed this interlocutory appeal, claiming that the trial court should have awarded them partial summary judgment in the breach of contract suit.

WRONGFUL DEATH CLAIM
Case Type – WD, AA; Wrongful death claim, automobile accident
Case Name – Scott; and Estate of Scott v. HK Contractors; and Utah Barricade Company
Case Number – 20070427
Judges – Billings, Davis, McHugh
Opinion By – Billings
Date – 10/08
Trial Court/Judge – 3rd District/Kennedy
Ruling– The Court of Appeals unanimously held that the decedent’s statement might have fallen under the excited utterance hearsay exception because decedent was injured at the time she made the statement and she made it in response to her husband’s query as to what happened. However, the Court of Appeals noted, decedent made the statement over two hours after the accident and so might have had time to collect herself and might not still have been operating under the stress of the accident when she made the statement. The Court of Appeals reversed the trial court’s ruling and remanded the case to the trial court with instructions to conduct further proceedings to determine whether decedent’s statement fell under the excited utterance exception. Regarding the arguments about age, sun in the driver’s eyes, etc., the Court of Appeals noted that under Utah law, in order to prove negligence caused an accident, a plaintiff does not have to prove that no other causes for the accident existed, but must only prove that the negligence increased the chances of such an accident occurring.
Attorney(s) - Appellant(s) – Justin C. Bond
Attorney(s) - Appellee(s) – Terry M. Plant and H. Justin Hitt of Plant, Christensen & Kanell
Facts/Contentions – Ruth Scott drove into an open trench on her way through a construction zone. The contractor, HK construction, was installing sewer lines and detoured traffic around the open trench with barricades. Two hours after the accident, in a hospital emergency room, Ruth Scott’s husband asked her what happened. She said she drove into the trench because she was confused about which was to go. Shortly thereafter, she developed respiratory failure, sank into a coma and died. Her husband and her estate filed a wrongful death suit against HK contractors and Utah Barricade. Plaintiffs claimed defendants breached their duty of care to the public by failing to mark a clear route through the construction zone. Utah Barricade settled, leaving only HK Contractors as a defendant.
The trial court granted HK contractors’ motion for summary judgment and dismissed the suit, ruling that the husband’s report of decedent’s statement was hearsay and thus inadmissible. The trial court also noted that other conditions, such as decedent’s age (77), sun in her eyes, or listening to the radio could have been contributory causes of the accident. Plaintiffs appealed.
Plaintiffs argued that decedent’s statement to her husband fell under one of three possible exceptions to the inadmissibility of hearsay evidence. The first was the present sense impression exception. The Court of Appeals held that this exception did not apply because decedent made the statement two hours after the accident and not while she was experiencing it. The second exception was the residual exception. The Court of Appeals agreed with the trial court that decedent’s statement did not fall under this exception because not enough was known about decedent’s habitual truthfulness or character. The third exception was the excited utterance exception. This exception would apply if decedent was still under the stress of the accident at the time she made her statement.

MISUSE OF PROCESS CLAIM
Case Type – MS; Miscellaneous (misuse of process, civil perjury, obstruction of justice, civil conspiracy)
Case Name – Puttuck; and Puttuck dba Breakthrough Construction v. Gendron; and Gendron
Case Number – 20070731
Judges – Bench, Thorne, McHugh
Opinion By – Bench
Date – 10/08
Trial Court/Judge – 3rd District, Silver Summit Department/Lubeck
Ruling– The Court of Appeals unanimously held that Puttuck’s complaint did not state any claim for which relief could be granted because Puttuck did not state any ulterior motive for the alleged abuse of process or any advantage the Gendrons might have gained from it. The Court of Appeals therefore affirmed the trial court’s dismissal of Puttuck’s complaint.
Attorney(s) - Appellant(s) – John F. Fay of Gregory & Swapp
Attorney(s) - Appellee(s) – Harold G. Christensen & Heather S. White of Snow, Christensen & Martineau
Damages – The Gendrons claimed $500,000 in damages in the counter-claim.
Facts/Contentions – Puttuck contracted to construct a home in Deer Valley for the Gendrons. Puttuck later sued the Gendrons for breach of contract. The Gendrons counter-sued Puttuck, claiming his work was sub-standard. The parties settled that lawsuit, and the Gendrons hired another construction company to work on the home. Three years later, the new contractor sued the Gendrons for breach of contract, and the Gendrons filed a counter-claim against the new contractor, alleging damages that occurred during a time period overlapping the one mentioned in the Gendrons’ suit against Puttuck. Puttuck sued the Gendrons, claiming they lied, misused the civil process to counter-sue Puttuck improperly and conspired to pursue an improper claim. The trial court dismissed the suit on grounds that Puttuck’s suit resulted in a settlement and not a ruling in either party’s favor, as Utah law requires before a party may file a suit of this type. In a settlement, the court does not find for one side or another. The trial court also found that the counter-claim against the new contractor was not for the same damages or allegations as the counter-suit against Puttuck, and Puttuck’s claims were barred by the statute of limitations. Puttuck appealed.

WATER RIGHTS DISPUTE
Case Type – MS; Miscellaneous (water rights dispute)
Case Name – Brown; Brown; Sorenson; and Sorenson v. Division of Water Rights (DWR); Utah State Engineer Olds; and McIntyre
Case Number – 20070474
Judges – Billings, Thorne, Davis
Opinion By – Billings
Date – 10/08
Trial Court/Judge – 3rd District/Iwasaki
Ruling– Judge Billings and Judge Davis held that the Browns’ and Sorensons’ complaint was too speculative to prove an actual or imminent injury, as Utah law requires to justify the filing of a suit such as this one. The Court of Appeals therefore upheld the trial court’s dismissal of the Browns’ and Sorensons’ complaint for lack of standing. Judge Thorne dissented, believing that the Browns’ and Sorensons’ complaint set forth a distinct risk of substantial harm to their property if the bridge was constructed.
Attorney(s) - Appellant(s) – Alexander Dushku, Benson L. Hathaway, Peter C. Schofield and Justin W. Starr of Kirton & McConkie
Attorney(s) - Appellee(s) – Richard R. Golden and Sarah E. Viola of McIntyre & Golden
Facts/Contentions – The Browns, the Sorensons and McIntyre all own property along Little Cottonwood Creek. McIntyre sought permission from the DWR to build a bridge across the creek to connect the two parts of his property. The Browns and the Sorensons objected, but the DWR granted McIntyre’s application. The Browns and the Sorensons filed a request for reconsideration, which the DWR denied, and then filed a petition for judicial review in Third District Court, claiming that the bridge would alter the flow of the creek and raise the flood risk on the Browns’ and Sorensons’ property. McIntyre filed a motion to dismiss, which the trial court granted, and the Browns and Sorensons filed a motion for a temporary restraining order and preliminary injunction, which the court denied. The Browns and the Sorensons appealed.

WRONGFUL LIEN CLAIM
Case Type – MS; Miscellaneous (wrongful lien claim)
Case Name – Doug Jessop Construction, Incorporated dba Sage Builders v. Joseph D. Anderton; and Prime Time Marketing Services, Incorporated
Case Number – 20060979
Judges – Orme, Greenwood, Bench
Opinion By – Orme
Date – 10/08
Trial Court/Judge – 3rd District Court/Iwasaki
Ruling– The Court of Appeals held unanimously that the trial court was correct in determining that the first notice of interest constituted a wrongful lien. The Court of Appeals therefore affirmed this part of the trial court’s judgment. However, the Court of Appeals held that when the trial court left Anderton free to file another suit against Sage, it also left him free to file the associated lis pendens that would preserve his interest in the property until the suit was resolved. The Court of Appeals therefore reversed the trial court’s finding that the second lis pendens was filed in violation of the trial court’s injunction. The Court of Appeals remanded the case to the trial court for a determination on attorneys’ fees.
Attorney(s) - Appellant(s) – Appellant Anderton appeared pro se; for Prime Time: Barbara K. Polich and Angela W. Adams of Ballard Spahr Andrews & Ingersoll
Attorney(s) - Appellee(s) – John D. Morris and Jamie L. Nopper of McKay Burton & Thurman
Facts/Contentions – Anderton, president of Prime Time, agreed on behalf of his company to purchase a house built by Sage. The parties executed a real estate purchase contract, but disagreed and failed to complete the transaction. Sage later attempted to sell the property to someone else, and Anderton filed a notice of interest and a lis pendens on it. Sage filed a petition for a wrongful lien injunction against Anderton, and the trial court issued the injunction and removed the notice of interest and the lis pendens. Anderton filed a counter-claim seeking a temporary restraining order preventing Sage from selling the property until the dispute was resolved. The trial court issued the order. After a hearing, the trial court left the injunction in place, dissolved the temporary restraining order and ruled that Anderton’s counter-claim was improperly filed. The trial court noted that its ruling did not prevent Anderton from filing further suits against Sage. Anderton filed suit against Sage seeking performance under the purchase contract or monetary damages. In connection with this suit, Anderton filed another lis pendens on the property. Sage filed a motion for removal of the second lis pendens, and the trial court granted it, holding Anderton in civil contempt for deliberately flouting the court’s order prohibiting the filing of further liens. Anderton appealed.

EMPLOYMENT DISPUTE
Case Type – MS; Miscellaneous (employment dispute)
Case Name – PDC Consulting, Incorporated v. Jared Porter
Case Number – 20060920
Judges – McHugh, Greenwood, Orme
Opinion By – McHugh
Date – 10/08
Trial Court/Judge – 4th District/Davis; then Pullan Ruling– The Court of Appeals unanimously held that the trial court judge told PDC outright in 2001 that it needed to renew its motion to set aside the settlement agreement, and PDC failed to do so until five years and two show-cause hearings later. The Court of Appeals upheld the trial court’s dismissal of the case. Attorney(s) - Appellant(s) – Ronald W. Ady
Attorney(s) - Appellee(s) – Matthew H. Raty
Facts/Contentions – PDC filed suit against Porter, a former employee, and the parties settled. Two years later, Porter filed a motion to enforce the settlement agreement. PDC filed a motion to have the settlement agreement set aside. The trial court denied both motions. After a show-cause hearing, the trial court gave the parties 90 days to complete discovery on the issue of whether the settlement agreement should be set aside. The parties agreed to extend this discovery by another 60 days. At a second show-cause hearing, the trial court ordered PDC to submit a certificate of readiness for trial or a new scheduling order by 04/30/06. PDC submitted a certificate of readiness for trial, and Porter objected to the certificate and moved to dismiss. PDC did not respond until three months later, when it filed motions to dismiss the objection and the motion to dismiss. That same day, the trial court held oral argument and dismissed the case with prejudice for PDC’s failure to prosecute. PDC appealed.