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

By Cimaron Neugebauer

The Salt Lake Tribune

First published Sep 16 2011 07:26PM
Updated Sep 17, 2011 09:34AM

Have you ever wanted to say what you thought about a judge? Now you can, and it is as simple as getting online.

A new website judges.utah.gov created by the Judicial Performance Evaluation Commission brings increased oversight to judges in the state and offers citizens who have been in court to submit their thoughts on how a certain judge handled a case. JPEC unveiled the new site on Friday and invited the public to add their comments based on “first-hand experiences with particular judges,” according to a release.

Previously only attorneys and jurors gave evaluations on judges. With the implementation of the new website, JPEC Chairman Lowry Snow said citizens can also submit comments for the commission to use in its final report. He said the new service was prompted by legislation that requires the commission allow for public comment.

(See full story)

by Cameron Morby

Many people are of the mindset “why should I write a will or create a trust when I do not have any significant assets?”

This way of thinking is particularly true among young professionals, students and recent college graduates. But what about your most valuable asset: your children? What would happen to your children in the event of your death? This is a question and an event you don’t like to think about, but even worse, this is an event that you don’t want to be unprepared for.

Under Utah law, parents can determine who will be the guardian of their children through a written instrument in the event of their untimely death. This is most often done through a will.

For parents of young children, failure to prepare a will and nominate a guardian can result in family contention, drawn-out legal conflict and the appointment of a guardian over your children that you did not intend. As a result, preparing a simple will ensure that your most important assets are protected and put in the care of the appropriate guardian.

Cameron M. Morby is an attorney at Snow Jensen & Reece, P.C. and focuses his law practice primarily in estate planning. Please email any estate planning questions you may have to him at cmorby@snowjensen.com or call and schedule a no cost estate planning consultation at 435-628-3688.

While on the Court, he chaired the Utah Supreme Court’s Committee on Civility and Professionalism. During that time, he traveled to Mexico and met with Mexico’s Supreme Court members. He learned then that in an effort to establish public confidence, the Supreme Court of Mexico has its own TV channel.

Everything the Mexican Supreme Court says, all deliberations and discussions about a case, are public and are broadcast on TV to the Mexican people. Each justice of the Supreme Court of Mexico has his or her own bodyguards, an armored car and guards to protect their family. Many of the Mexican people do not believe the Mexican Courts are neutral and that they serve out justice. Many believe the judges are bought off or will throw a case out of fear for their safety or the safety of their family.

Justice Wilkins pointed out that many courts in the United States, including most federal courts, believe that publicizing court proceedings is disruptive to the proceedings and can unfairly taint the process. What would happen, for example, if the media were allowed to watch the deliberations of judges in an appellate case, or the deliberations of jurors over a criminal matter?

If the judges or jurors knew whatever they said against the accused was recorded and broadcast to the family, friends or the gang of the accused, the judges or jurors may not be candid about their views and opinions. The judicial process would be disrupted.
Attorneys have a duty to honor and respect the judicial process and teach their clients to do the same. Clients need to understand that the rule of law allows for predictability in people’s lives. Credibility challenges to the Courts and the judicial system can have the effect of undermining the rule of law and the safety of all persons affected by the law.

As lawyers, we each have a stake in the judicial system, for ourselves and for our clients. We must honor the law and the judicial system and not do anything that would threaten the credibility or integrity of the judicial process in the United States.

Lewis P. Reece
Shareholder, Snow Jensen & Reece

On February 11, 1986, V. Lowry Snow and Curtis M Jensen founded the law firm of Snow & Jensen in St. George, Utah.  Since then, our law firm has grown into the largest locally-owned law firm in southern Utah, but the commitment of Lowry and Curtis to providing the highest quality legal services to southern Utah has not changed.  Our firm also maintains a commitment to the highest ethics and engagement in community service.  Those of us that have joined the firm since its founding, attorneys and staff alike, are proud to share in these traditions and to call Lowry and Curtis our mentors, colleagues, and friends.

We appreciate the clients and friends that have allowed us to serve them over the years.  With ten attorneys and offices in St. George, Cedar City, and Kanab, Snow Jensen & Reece has the expertise and ability to assist with most legal needs that might arise.  Please give us a call if you have a legal matter with which we might assist.

Here’s looking forward to another twenty-five years of great legal service in southern Utah.

Briefing and oral argument focused on the Second Amendment, whether the Amendment confers an individual right to bear arms or whether the right to bear arms is had only in connection with membership in a militia.  Recently, the U.S. Supreme Court in a five to four decision ruled that the Second Amendment guarantees an individual right to bear arms—that the prefatory clause to the Amendment announced a stated purpose for the Amendment, but it did not circumscribe the operative clause of the Amendment.  District of Columbia v. Heller, 128 S.Ct 2783 (2008).   The prefatory clause in the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State.”  The operative clause continues: “the right of the people to keep and bear Arms, shall not be infringed.”

Long has the suggestion been made that the right to keep and bear arms was available only if a person was a member of the militia.  For example, the U.S. Supreme Court said back in 1939:  “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’. . . has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”  United States v. Miller, 307 U.S. 174, 177 (1939).  Of course, the four justices in the dissenting opinion in District of Columbia, argued strongly that the Miller case set a precedent that the prefatory clause in the Amendment governed the operative clause.  This all made for a great debate among the high school students.

Scores for the students were derived 50% on their written argument and 50% on their oral presentation, which included answering questions from a panel of attorneys acting as appellate judges.  First place went to Hailey Wood, a senior at Beaver High School.  She was awarded a scholarship of $750.00.  Second place went to Cesar Vega, also a senior at Beaver High School.  He was awarded a scholarship of $350.00.  Third place went to Ryan B. Cooper, a senior at Cedar High school, who was awarded a $100.00 scholarship.  Pictures were taken of the students.  They all did a fine job, answering tough questions from the bench all in front to the members of the Scott M. Matheson Sr. American Inn of Court.   Congratulations to each of the winners.

What is an unintended gift and what are the consequences? An unintended gift is made frequently at a bank, the county recorder’s office or via a brokerage account. For example, in an effort to assist an aging parent, a child is named as a joint account owner on a bank account or placed on title to real property through a quit-claim deed, to ensure that mom or dad will be taken care of and their property properly managed. Although the intent is honorable, the consequences can be devastating.

A potential adverse consequence of making an unintended gift can result in disrupting an overall estate plan. For instance, if a parent has executed a will that divides her property equally among her three children but places one child as a joint owner on all of her property, then at death the law declares the joint surviving property owner to be the legal owner of the property despite the will directing a difference result. In addition, an unintended gift can have adverse tax consequences including gift tax liability for the person making the gift and losing out on the cost of basis adjustment for property owned at death. Finally, making an unintended gift to a child can subject the property given to the child’s debtors and creditors.

It is the season of giving; just make sure to avoid making an unintended gift which ultimately may be received by an unintended recipient.

Citing policy reasons and arguing that this was part of the common law and thus constitutionally appropriate for the judiciary, the Utah Supreme Court found that an implied warranty of workmanship and habitability exists for all new home construction in Utah.    The implied warranty is not a guarantee that the home is built without defect.  Neither does the implied warranty apply to aesthetic deficiencies of the home.  But each new home buyer is entitled to a home free of latent defects that go to the home’s workmanship and habitability.  The Court said:

The implied warranty, however, does not require perfection on the part of the builder-vendor/developer-vendor or “make them an insurer against any and all defects in a home.”  “No house is built without defects,” and the implied warranty does not “protect against mere defects in workmanship, minor or procedural violations of the applicable building codes, or defects that are trivial or aesthetic.”  Nor is the implied warranty intended to alleviate purchasers of their due diligence and opportunity to inspect a residential construction or the incentive to negotiate for express warranties.

Therefore, to establish a breach of the implied warranty of workmanlike manner or habitability under Utah law, a plaintiff must show (1) the purchase of a new residence from a defendant builder-vendor/developer-vendor; (2) the residence contained a latent defect; (3) the defect manifested itself after purchase; (4) the defect was caused by improper design, material or workmanship; and (5) the defect created a question of safety or made the house unfit for human habitation.

Davencourt, 2009 UT 65, ¶¶ 59, 60 (citations omitted).

This implied warranty is narrow, but it is imposed by law.  It is implied in each contract for the purchase of a new home.  Thus, it requires that the new home buyer have a contract with the builder or developer of the new home.   It does not arise under tort law but under contract law, and the plaintiff must have privity of contract to bring the claim.  Id. at ¶ 57.  Moreover, the builder or developer cannot waive this warranty by contract.  Neither does the warranty disappear when the buyer receives his deed.  The warranty survives conveyance and is not merged into the deed.  Id. at ¶ 58.   And the implied warranty is for new home construction only.  The doctrine of caveat emptor is alive and well in Utah as it relates to homes that are not new.  “Finally, we emphasize that this implied warranty does not abrogate the doctrine of caveat emptor in the sale of existing or used residences.” Id. at ¶ 62.

Davencourt is an important case in the common law of Utah and for those dealing in the new home market.

Although there are multiple reasons for this skyrocketing of expenses and time (e.g., clogged court dockets, diminished resources in the judicial system, and increased operating costs for attorneys and law firms), the most significant contributor is discovery.  Discovery is the phase of litigation that typically follows the filing of a lawsuit and is the process by which litigants obtain information about each other’s case through a variety of formal and informal means (e.g., depositions, exchanging of documents).

In recognition of the challenges posed to litigants by these costs of discovery, the Utah Supreme Court recently tasked its Advisory Committee on the Utah Rules of Civil Procedure to propose comprehensive revisions to the Utah Rules of Civil Procedure that govern the discovery process in all civil lawsuits.  In June 2010, the Advisory Committee published its proposed revised rules and is now seeking feedback from the members of the Utah State Bar and judges alike.  The proposed revised rules seek to implement mandatory processes designed to reduce the time and expense of litigation.  The hyperlink below contains a written summary of the proposed changes to the rules governing disclosure and discovery, followed by the proposed rules themselves with highlighted changes.

Link:  PROPOSED RULES GOVERNING CIVIL DISCOVERY (need .pdf viewer to open)

·      Eight of eleven total industry categories are currently experiencing growth.

·      Iron County’s unemployment rate is 8.7% as of July 2010, up from 8.3% at the end of December.  Utah’s unemployment rate as of July 2010 was 7.2%.

·      Iron County’s population grew by approximately 1% in 2009.

·      The total number of building permits issued by Cedar City in 2009 was 263, down from 368 in 2008 and 558 in 2007.

·      According to the Utah Association of Realtors, the number of home and condo units sold in Iron County was up 17.4% for the first six months of 2010.

Thanks to all the people at the Cedar City Area Chamber of Commerce who made the Economic Summit a great success.

Source: 2010 Cedar City Area Chamber of Commerce Economic Summit Information Packet.