31 results for 'judge:"Mortensen"'.
J. Mortensen finds that the trial court properly rejected claims for access to a road across a ranch property and quieted title in favor of the ranch. The road was not public under the dedication statute since only a small subset of the public ever had access, and they actively tried to prevent other members of the public from using it. And no convincing evidence showed a historical public use. A prescriptive easement argument also failed because the adverse mental state was belied by requests for keys and permission to access the road. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: April 25, 2024, Case #: 20220432-CA, Categories: Property
J. Mortensen finds that the trial court properly tossed a claim that road conditions at a railroad grade crossing caused an injury accident when a Jeep full of teenagers tried to jump the tracks. The railroad did not have a duty to change the steepness of the road, the county is immune since improving the road would be discretionary, no evidence showed that potholes caused the accident, an attractive nuisance claim failed because the driver and injured passenger are held to an adult standard of care as licensed drivers, and the city had only recently annexed the land and had not been made aware that a utility pole might be too close to the road. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: April 18, 2024, Case #: 20220139-CA, Categories: Immunity, Negligence
J. Mortensen finds that the trial court improperly dismissed a customer's discrimination claim against a Burger King franchise owner. Respondeat superior vicarious liability applies to the Civil Rights Act and a jury must determine whether a shift supervisor was acting within the scope of her employment when she used racial epithets and enlisted a friend to assault the customer. Reversed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: April 18, 2024, Case #: 20221003-CA, Categories: Civil Rights, Tort
J. Mortensen finds that the lower court properly convicted defendant of aggravated assault and domestic violence in the presence of a child. Defendant’s wife reported to police that defendant assaulted her in front of their five children, but later recanted her statement and asserted her Fifth Amendment right 47 times at trial. Defendant argues that hearing the invocations over and over prejudiced the jury, but he did not object to the invocations prior to appeal. Also, his argument of ineffective assistance of counsel fails, as what defendant views as error by counsel would not have impacted the outcome of the trial. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 28, 2024, Case #: 20220006-CA, Categories: Ineffective Assistance, Assault, Domestic Violence
J. Mortensen finds that the lower court improperly dismissed a complaint filed by a daughter against her father after she allegedly discovered they had taken $133,000 of her settlement money from a medical malpractice suit from when she was a minor and used it to purchase a home for themselves. The lower court suspended the hearing and ordered a supplemental briefing with the understanding that there would be a hearing in the future, but it never happened, resulting in an effective dismissal. The daughter correctly argues her right to due process was violated. The matter is remanded for further consideration. Reversed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 28, 2024, Case #: 20220756-CA, Categories: Due Process, Enforcement Of Judgments
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J. Mortensen finds that the lower court properly convicted defendant of two counts of aggravated sexual abuse of his two minor daughters following his guilty plea. As part of the plea agreement, a sentence of two concurrent terms of six years to life was to be recommended, but at the sentencing hearing, the victims testified that they felt the sentence to be too lenient. The lower court sentenced defendant to 15 years to life for each count, to run concurrently. Defendant argues the prosecutor breached the plea agreement and the court should not have considered the victims’ view on the sentence. Defendant also asserts he received ineffective assistance by trial counsel for failing to object to the prosecutor’s statements at sentencing. However, there was no breach of the plea agreement and no deficiency in defendant’s legal representation. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 28, 2024, Case #: 20221055-CA, Categories: Ineffective Assistance, Sentencing, Sex Offender
[Amended.] J. Mortensen clarifies the standard of review in a housing discrimination case with no change in judgment. The district court erred in concluding that a homeowners' association improperly delayed its evaluation of a homeowner's request to keep eight backyard "comfort chickens" for a child with PTSD and anxiety. The HOA properly and timely engaged the homeowner about the requested accommodation, taking a few weeks to evaluate the related issues of runoff, odor, rodents and the novel use of chickens as emotional support animals before granting a variance for two hens. Also, the homeowner failed to show any harm by the alleged delay. Reversed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 21, 2024, Case #: 20210698-CA, Categories: Ada / Rehabilitation Act, Property
J. Mortensen finds that the district court improperly terminated a father's parental rights to his two teenage children and granted their adoption by their stepfather. The categorical concern that the children needed stability and permanence was not enough to terminate the father's rights, since they already lived with their mother and stepfather. Though he is incarcerated, he has sought visitation with the children and has not posed any threat of harm to them. And any lack of communication was due to interference by the mother and stepfather. Reversed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 14, 2024, Case #: 20230162-CA, Categories: Family Law
J. Mortensen finds that the trial court properly applied postjudgment interest on a damages award in a product liability case beginning from the date of the final judgment in 2018. The trial erroneously overturned the jury's damages award, but the Utah Supreme Court reinstated it, and no issues remained undecided after the judgment. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: March 14, 2024, Case #: 20220957-CA, Categories: Damages, Product Liability
J. Mortensen finds that the trial court should have required trust beneficiaries to more adequately disclose their expected testimonies supporting a challenge to a trustee's handling of a trust, but the error was harmless because the trustee was allowed to depose them on the subjects of their testimony. Also, a computation of damages was not needed to remove the trustee for his refusal to distribute most of the trust assets, so its omission was harmless. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: February 29, 2024, Case #: 20220699-CA, Categories: Trusts, Fiduciary Duty
J. Mortensen finds that the trial court properly handled the child custody and asset division in a divorce. The husband was awarded full child custody with reunification services for the wife based on evidence of her acrimonious relationships with their children. The husband's testimony supported the conclusion that he owned the family business and the trial court was within its discretion to split the equity in the marital home. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: February 8, 2024, Case #: 20210787-CA, Categories: Family Law
J. Mortensen finds that the district court erred in concluding that a homeowners' association improperly delayed its evaluation of a homeowner's request to keep eight backyard "comfort chickens" for a child with PTSD and anxiety. The HOA properly and timely engaged the homeowner about the requested accommodation, taking a few weeks to evaluate the related issues of runoff, odor, rodents and the novel use of chickens as emotional support animals before granting a variance for two hens. Also, the homeowner failed to show any harm by the alleged delay. Reversed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: February 1, 2024, Case #: 20210698-CA, Categories: Ada / Rehabilitation Act, Property
J. Mortensen finds that the district court properly granted summary judgment to a mother on her adult daughter's emotional distress claims. The mother's communications with her daughter were attempts at reconciliation, though possibly insensitive to the history of sexual abuse by the mother's husband that led to the daughter's removal from the mother's home as a child. The daughter's negligent sexual abuse claim failed because a neighbor's warning to the mother about her husband's inappropriate behavior around children was not sufficient to put the mother on notice that her daughter was at risk. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: January 19, 2024, Case #: 20220207-CA, Categories: Negligence, Emotional Distress
J. Mortensen finds the trial court improperly convicted defendant for home invasion and assault of a 72-year-old woman. Defendant was already in jail on drug charges and police interviewed him, resulting in a confession. Trial counsel was ineffective for failing to move to suppress defendant's confessions. The state had no other evidence of his guilt and the failure to move to suppress resulted in prejudice. Vacated.
Court: Utah Court Of Appeals, Judge: Mortensen , Filed On: December 14, 2023, Case #: 20210766-CA, Categories: Ineffective Assistance, Robbery, Assault
J. Mortensen finds that the trial court properly ordered a permanent stalking injunction on a building manager who had threatened a tenant's employee. The order was supported by evidence that the building manager targeted the employee with a course of conduct that would make a reasonable person fear for his safety. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: December 7, 2023, Case #: 20220522-CA, Categories: Restraining Order
J. Mortensen finds that the trial court did not impermissibly broaden the jury instructions in defendant's communications fraud trial to charge him with a different offense than those charged through the state's information. The removal of the phrase "to defraud another" narrowed, not broadened, the charge, so the change was not a constructive amendment to the instructions. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: November 24, 2023, Case #: 20210838-CA, Categories: Fraud, Restitution, Jury Instructions
J. Mortensen finds that the district court properly held that an irrevocable trust had not been modified to give the settlor's second wife a role as the "Settlor's wife." Her interest in a trust property was not established by estoppel. She failed to present admissible evidence that a second trust had been established, which she asserted due to spelling errors in the the settlor's references to the trust. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: November 9, 2023, Case #: 20210636-CA, Categories: Family Law, Trusts
J. Mortensen finds that evidence that defendant ignored a police officer who was obviously signaling for him to stop, and that he tried to break through a parking lot fence, supported his failure to stop conviction. Evidence of methamphetamine in baggies he threw from his car and the presence of his identification in a bag containing other meth contraband supported his drug conviction. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: November 2, 2023, Case #: 20210865-CA, Categories: Drug Offender, Resisting Arrest
J. Mortensen upholds the trial court's grant of guardianship to two children's maternal grandparents based on evidence that their mother neglected them. But it must make further findings to determine the mother's allocation of parenting time. Affirmed in part.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: November 2, 2023, Case #: 20220920-CA, Categories: Family Law
J. Mortensen finds that the trial court properly denied defendant's motion to file a direct appeal of his sentence for attempted child kidnapping. He expressly waived his right to appeal his conviction and sentence when he signed his plea agreement, and there is no evidence that he has been prejudiced since he never tried to appeal the sentence, which was handed down in 2003. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: September 28, 2023, Case #: 20220104-CA, Categories: Sentencing, Plea, Kidnapping
J. Mortensen finds that a judge who was previously a defense attorney and had represented defendant should have recused himself before presiding over his probation revocation hearing. Though the judge created an appearance of partiality by failing to disqualify himself, defendant did not show any prejudice and his probation was revoked for multiple violations, an avoidance of probation obligations and an extensive criminal history. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: September 28, 2023, Case #: 20220280-CA, Categories: Judiciary, Probation, Due Process
J. Mortensen finds that the trial court properly dismissed a debtor's deceptive trade practices suit against a Wisconsin debt collection firm. A foreign debt collector's failure to register as required by the Collection Agency Act does not support a cause of action under the Consumer Sales Practices Act. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: September 28, 2023, Case #: 20210720-CA, Categories: Debt Collection, Consumer Law
J. Mortensen holds that the workers' compensation appeals board properly upheld an administrative court's decision to wean a claimant down to a lower lever of opioid use for a workplace back injury. The board supported its decisions about dosage and compensability with substantial evidence. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: August 24, 2023, Case #: 20200184-CA, Categories: Workers' Compensation
J. Mortensen holds that the trial court properly found that a wife did not have an interest in her husband's trust and that her argument that she was entitled to trust assets as a creditor was not supported by Arizona law, which controlled trust interpretation. However, the trial court must revisit her personal grooming, lawn aeration and bark replacement expenses since it denied them without adequate findings. Reversed in part.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: August 10, 2023, Case #: 20210080-CA, Categories: Family Law, Trusts
J. Mortensen finds that defendant failed to show that his waiver of a preliminary hearing was not his own decision, rather than the result of a coercive condition placed on him by the trial court in order to enter a plea bargain. His ineffective assistance claim that counsel should have objected to the trial court's comments about waiving a preliminary hearing failed since he rejected the state's best plea offer, voluntarily waived the preliminary hearing and sought to go to trial. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: July 20, 2023, Case #: 20220276-CA, Categories: Assault, Plea
J. Mortensen finds that defendant did not show that counsel was ineffective or that he suffered prejudice in a trial that ended with convictions for multiple offenses. Alleged erroneous jury instructions for aggravated sexual assault and aggravated kidnapping did not result in prejudice. And counsel was within reason to decide not to challenge the value of a phone that defendant destroyed and was the basis of a theft count. Affirmed.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: June 23, 2023, Case #: 20210286-CA, Categories: Ineffective Assistance, Robbery, Kidnapping
J. Mortensen finds that the trial court improperly admitted a witness's preliminary hearing testimony at defendant's child abuse trial. Defendant's motive in questioning the witness shifted from showing at the preliminary hearing that the witness was the likely source of the child's injuries to showing at trial that there was reasonable doubt that defendant caused the injuries, and the admission of the preliminary hearing testimony prejudiced defendant. Vacated.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: June 15, 2023, Case #: 20210718-CA, Categories: Domestic Violence, Witnesses, Child Victims
J. Mortensen finds the trial court improperly dismissed all claims brought by the Planned Parenthood patient who alleges that a medical assistant with whom she had an acquaintance publicized her private health information. Though the patient failed to observe certain prelitigation requirements, her pleadings are not solely legal conclusions, as argued by PP. She sufficiently pled that the medical assistant was employed by Planned Parenthood at the “times discussed” in the complaint, at least implicitly including the “time” when he allegedly disclosed that the patient had undergone an abortion procedure. Affirmed in part. Reversed in part and remanded.
Court: Utah Court Of Appeals, Judge: Mortensen, Filed On: May 12, 2023, Case #: 20210457-CA, Categories: Constitution, Health Care, Due Process