What is Law Day?

A national day set aside to celebrate the rule of law, Law Day underscores how law and the legal process have contributed to the freedoms that all Americans share. The theme for Law Day 2012 is The American Jury: We the People in Action.

Why is the theme important?

The Law Day theme provides an opportunity to explore the fundamental principle of the American legal system: The right to trial by a jury of one’s peers.

Since our nation’s founding, the right to trial by a jury of one’s peers has been a fundamental principle of our democracy. But fulfilling this principle and ensuring equal justice under the law depends on each of us doing our part.

The Court of Appeals affirmed the decision and judgment of the trial court entered by the Honorable G. Rand Beacham of the Fifth Judicial District Court for Washington County, Utah in December 2010.  A complete transcript of the Court of Appeals’ Memorandum Decision may be found at  http://www.utcourts.gov/opinions/appopin/van_den_eikhof042612.pdf.

In this matter, a prospective employee applicant for a teaching position filed a lawsuit against the School and various School administrators when he was not ultimately hired by the School, claiming the School had in fact entered into a binding employment contract with him which the School thereafter breached.  These claims were ultimately rejected by the courts on various procedural grounds.

Matthew Ence is an attorney with the law firm of Snow, Jensen & Reece. The content in this column should not be construed as legal advice or as a substitute for counsel on individual matters, in most scenarios it is premised upon Utah law and may not be relevant to issues arising in other states.

Question:  I am looking at moving into a new rental home, and someone I know had to move out of their rental because the owner, his landlord, was foreclosed by the bank. How do I make sure that doesn’t happen to me?

Answer:  With home foreclosures so widespread in recent years, this problem has become more common for residential tenants.

In 2009, in response to the then-growing housing crisis, the U.S. Congress passed and President Obama signed the “Protecting Tenants at Foreclosure Act.”

The general purpose of the Act was to give residential tenants some protection against eviction if their home was foreclosed. 

The Act draws a distinction between residential lease agreements signed before and after “notice of foreclosure.” A bank or buyer who acquires a property in foreclosure generally must honor the full term of a lease if the lease was signed before “notice of foreclosure,” and as long as the lease is “bona fide.” A lease is “bona fide” if it is not between close family members, was negotiated at arm’s length, and provides for fair market rent.

Generally, a tenant under a lease not meeting the requirements of the Act does not receive the same protection. However, the Act does provide that no residential tenant who is meeting the requirements of their lease can be evicted with less than 90 days notice to vacate.

There are several challenges to interpreting the Act, because no Utah courts have yet reported cases applying the Act. And unless action is taken this year to renew the Protecting Tenants at Foreclosure Act, by its provisions it automatically sunsets on December 31, 2012.

But, the bottom line for a tenant is that the best protections are: first, having a written, bona fide lease; and second, checking local public records to determine if a notice of default has been filed on your rental before you sign the lease.

We also recommend seeking the advice of competent legal counsel to help you with questions about your lease.

Matthew Ence is an attorney with the law firm of Snow, Jensen & Reece. The content in this column should not be construed as legal advice or as a substitute for counsel on individual matters, in most scenarios it is premised upon Utah law and may not be relevant to issues arising in other states.

Question: I closed my business last year and relinquished the shop space I had leased. I fulfilled my lease and never defaulted in payment of rent. I even left the space in broom clean condition, as the lease requires. It’s been six months and the landlord still hasn’t refunded my deposit. The lease called it last month’s rent, but I paid the last month’s rent in normal course of business. How can I get my deposit money back and are there penalties I can exact for the landlord not refunding me on time (my lease says he has to refund within 30 days)?

Answer: The answer to your question is in the terms of the lease itself. Because the lease is a binding contract, and you have met your obligations under the lease, the landlord must meet its obligations as well, and cannot take advantage of an overpayment of rent to receive a windfall.

If this were a residential lease, specific provisions of Utah law would govern the return of a security deposit and the reasons for which the landlord could retain the deposit. Where this is instead a commercial lease, those specific provisions of Utah law would not apply, and the relationship of the parties in the lease is instead governed by general contract law principles, and the obligation of each party to deal with the other fairly and in good faith.

If the landlord is unresponsive after a firm and reasonable demand for compliance with the lease terms, then you may have to resort to legal action. If the reimbursement you are owed is less than $10,000, you can file a small claims action against the landlord and may not need an attorney’s assistance. If the amount is greater, you will need to consider filing in district court, and an attorney’s help is recommended.

Ultimately, questions regarding whether you can recover attorneys’ fees, costs of court, interest, or other fees is dependent primarily on the terms of the lease itself. If you obtain a judgment, at a minimum you should at least be entitled to post-judgment interest at 10 percent per year from the date the judgment is entered.

Matthew Ence is an attorney with the law firm of Snow, Jensen & Reece. The content in this column should not be construed as legal advice or as a substitute for counsel on individual matters, in most scenarios it is premised upon Utah law and may not be relevant to issues arising in other states. 

Question: I’m drowning in medical bills but I filed for a Chapter 7 bankruptcy almost eight years ago. Can I file again? Are there any things that could prevent me from filing bankruptcy?

Answer: You cannot file a new Chapter 7 bankruptcy if you obtained a discharge of your debts in Chapter 7, within the last eight years, or in Chapter 13 in the last six years.

Typically you also cannot file if a previous bankruptcy was dismissed (without a discharge) within the last 180 days.

Assuming none of these restrictions is applicable to you, in order to be able to file Chapter 7 you must also pass a “means test.”  In other words, your income cannot be greater than a certain amount.  The purpose of the “means test” is to determine whether you have enough disposable income, minus certain expenses, to service your unsecured debts over a five-year period.  If your income is less than this amount, you are eligible for
 Chapter 7 bankruptcy.  If your income is greater than this amount, then Chapter 13 bankruptcy is likely your only option.

Other issues can derail a bankruptcy filing.  For example, if the bankruptcy court determines that you have defrauded your creditors or tried to hide assets, the court will dismiss your case.

The bankruptcy rules and procedures can be complex.  As in all cases, we would encourage you to seek out competent legal counsel to help you navigate the bankruptcy minefield.

Tyson C. Horrocks is an attorney with the law firm of Snow, Jensen & Reece. The content in this column should not be construed as legal advice or as a substitute for counsel on individual matters, in most scenarios it is premised upon Utah law and may not be relevant to issues arising in other states.

Question:  I am planning to move out of the area and I was told the laws changed this year regarding how many miles you and your children can move from your ex-spouse and how much notice you have to give. What are the new statutes?

Answer: The new law relevant to your question takes effect on May 8, 2012. The law defines “relocation” as moving 150 miles or more from the residence of your ex-spouse. If you are moving less than 150 miles from your ex-spouse, the move is not considered a “relocation” and the requirements of the statute do not apply.

If you are moving more than 150 miles from your ex-spouse, then you must provide them at least 60 days advance notice, in writing. The written notice must contain statements affirming that you will follow the parent-time schedule and that neither parent will interfere with the other’s parent-time rights.

When your ex-spouse receives the notice, they have the right to request a hearing for the court to review whether the relocation is in the best interest of your children. If the court does find that the move is in your children’s best interest, then it may also determine the parent-time schedule and allocate transportation costs. If the court finds the move is not in your children’s best interest, and you still relocate with the children, then the court may order a change in custody.

The new law is HB 448, as amended, which modifies Utah Code Annotated section 30-3-37. If you believe this law may apply to your circumstances, we recommend you seek legal counsel to guide you in relation to these issues.

The Utah Supreme Court has held that, in order to qualify as a “final order,” the paper drafted up by your Utah attorney needs to contain certain language. In Giusti v. Sterling Wentworth Corp., 2009 UT 2, 201 P.3d 966, the court held that if a trial court intends its ruling or order to be the final order of the court on that matter, it “must explicitly direct that no additional order is necessary.” Id. ¶ 32.  Unless the order includes this language, even if the order was intended to be final and there are no remaining issues, the appeal will be dismissed for lack of jurisdiction and the litigant must start the process all over again.

This technicality illustrates the importance of having skillful and experienced legal counsel assisting you throughout the litigation and appellate process with an eye for these details.

- Jonathan P. Wentz

Utah’s Rule 702 as amended provides:

(a)                Subject to the limitations in subsection (b), if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(b)                Scientific, technical, or other specialized knowledge may serve as the basis of expert opinion if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.

(c)                The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

Utah R. Evid. 702 (2007).

The Utah Supreme Court has not followed the Federal “general acceptance” test annunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Federal Rule on admissibility of expert testimony is now articulated in the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Utah Supreme Court began digressing from Frye in State v. Rimmasch, 775 P.2d 388, 396 (Utah 1989).   The Utah Supreme Court said:

In recent years, the Frye test has been criticized as being too restrictive because, inter alia, in some circumstances it can operate to deny admission of evidence based on newly discovered principles that may be reliable but so new that they cannot be said to have attained general acceptance in what may be deemed to be the relevant scientific community.

Rimmasch, 775 P.2d at 396. Prior to the 2007 amendment, Utah law required a threshold finding of “inherent reliability” before scientific evidence was introduced at trial.  State v. Rimmasch, 775 P.2d 388, 396 (Utah 1989) (citing Phillips v. Jackson, 615 P.2d 1228, 1234, 1235 (Utah1980)).  Rimmasch held, however, that the proponent of the evidence needed first to make a foundational showing that the evidence was inherently reliable.  Rimmasch, 775 P.2d at 398.  The Rimmasch Court expressly rejected the “contention that the Phillips inherent reliability threshold standard for admissibility [did] not survive[] the promulgation of rule 702 [as amended in 2000] and that mere relevancy is sufficient.” Id. This threshold finding could be made in “two different ways: a request that the trial court take judicial notice of the ‘inherent reliability’ of the testimony’s foundational principles or techniques or, alternatively, a request that the trial court determine that these principles or techniques are inherently reliable after an evidentiary hearing addressing the issue.” Id. at 399.

In amending Rule 702 in 2007, the Utah Supreme Court did not intend to make it more difficult to admit expert testimony.  Rather, it intended to clarify the requirements for expert testimony admission.  Eskelson v. Davis Hospital and Medical Center, 2010 UT 59, ¶ 11, 242 P.3d 762 (Utah 2010).

The advisory committee notes make clear that the new rule 702 “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony”—not just scientific expert testimony.  Utah R. Evid. 702 advisory committee notes, ¶ 3.  When applying the new rule 702, judges should approach expert testimony with “rational skepticism.”  Id.  But the “degree of scrutiny [that should be applied to expert testimony by trial judges] is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability.” Id.  Importantly, both subsections (b) and (c) require the plaintiff to make only a “threshold showing” of reliability.  Utah R. Evid. 702(b)-(c).

Eskelson, 2010 Utah 59, ¶ 12 (emphasis added).  Consequently, under Utah law, admission of expert testimony using scientific techniques or methods is more likely given the 2007 amendment of Utah Rule of Evidence 702.  The proponent of the expert testimony need only make a threshold showing that the evidence is reliable and based upon sufficient facts properly applied to the case at hand.  Utah R. Evid. 702(b).  This threshold showing can be made when the scientific evidence is accepted by the relevant scientific community, but the method or technique need not be uniformly accepted. Id. at 702(c).

If the materialman or supplier is pursuing a mechanic’s lien and has failed to demand such instruction, the owner has a defense to the lien. But what is an owner or a general contractor?

Can the owner of a subdivision, for example, develop the property through its principal agent, and is the subcontractor who is dealing then with the agent dealing with the owner or a general contractor?  If the so-called subcontractor is dealing directly with the owner, the subcontractor is really a general contractor and Utah Code Ann. § 58-55-601 does not apply. If the principal of the owner is acting as a general contractor, especially if the owner is a corporation, then it is more complicated.

The subcontractor has the burden to establish that the so-called general contractor is not the general contractor at all but an agent of the owner, thus making the subcontractor actually a general contractor. This, then, would be a defense to the so-called subcontractor’s failure to demand allocation of the payment from the general because the general really is the owner and the subcontractor really is the general.

In that situation, the failure to demand where allocation of the payment is should be made is not a defense to the so-called subcontractor’s failure to demand allocation of payment.

Lewis P. Reece

Lowry Snow will participate in the 2012 Utah Legislative Session, and  will participate in the general election in November 2012.

As a member of the Utah Legislature, Lowry Snow will face difficult issues, including balancing the budget, health insurance issues and Obama’s healthcare, plan, as well as education, job creation in Utah, and particularly for the Southern Utah area, and the Lake Powell Pipeline.

Congratulations to V. Lowry Snow!

Posted by Lewis Reece