What a Lawsuit Looks Like.

Deciding to file a lawsuit against someone is often difficult and daunting.  After all, the legal system can be pretty intimidating.  The process of suing, itself, is governed by a complex set of procedural rules that must be navigated in order to successful litigate a dispute.  Typical questions include; how does a lawsuit start; how is evidence collected; and how long will the process take?  Although there are a myriad of additional questions about the legal process, this article explores the basics of the civil litigation process in Utah.

The Complaint.  The process of civil litigation in Utah is governed by the Utah Rules of Civil Procedure.  Under these rules, in general, a civil lawsuit is commenced by filing a a “complaint” with the Court. Utah R. Civ. P. 3(a).  The Complaint must include a “short and plain” statement of the legal claim and the relief being sought from the Court.  Utah R. Civ. P. 8(a).  The Complaint will typically also include factual allegations supporting the legal claim.

Service of Complaint and Summons.  The Complaint and a Summons must be “served” on the named defendant to provide the defendant with a fair chance to respond.  A Summons is a document notifying a defendant that they are being sued and that they must respond to the Complaint or risk having judgment entered against them.  Utah R. Civ. P. 4(c).  Service can be accomplished through various means, but the most common is to have the Complaint delivered to the Defendant personally, or to the Defendant’s residence, by a constable or other person authorized to serve legal papers. See Utah R. Civ. P. 4.

The Answer.  Once the Complaint and Summons has been served, the defendant has a certain period of time (typically 21 days) to respond to the Complaint.  Utah R. Civ. P. 12.  Sometimes a defendant will respond by asking the Court to dismiss the case for various legal reasons.  However, it is most common for a defendant to answer the Complaint by responding in writing and admitting or denying all of the allegations in the Complaint. 

Statement of Event Due Dates.  Once a defendant has filed an answer to the Complaint, the Court issues an automatically generated Notice of Event Due Dates.  In general, the notice sets due dates for “discovery,” completion of alternative dispute resolution (“ADR”), and certification for readiness for trial. 

Discovery.  Discovery is the period of time in which the parties must disclose to each other any documents or witnesses they may use at trial, including expert witnesses.  Based on the amount of damages sought in the Complaint, discovery will generally extend for 162 days, 222 days, or 252 days.  Utah R. Civ. P. 26(c)(5).

Alternative Dispute Resolution.   In Utah all civil litigants are required, unless excused by the court, to participate in a form of ADR prior to trial.  Utah R. J. Admin 4-510.05 (1)(A).  The most common form of alternative dispute resolution is mediation, where the parties will meet with an independent third-party, usually a retired judge or seasoned attorney, to explore possible settlement of the case.

Certification for Trial.  Once discovery is concluded, and the ADR requirement fulfilled or excused, either party can certify the case for readiness for trial.  The Court will then set a trial date, which can be several months in the future.

The process outlined in this article is a very abbreviated explanation of the litigation process designed to provide only a basic understanding of the steps in Utah litigation.  As can be seen, litigation can be lengthy, expensive, and confusing.  If you have a legal claim that you want to pursue, it is always advisable to seek the advice of a knowledge attorney to discuss your options.

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Can I Get Attorney Fees? Maybe.

One of the most common questions a client asks when considering whether to file a lawsuit is “can I get an award for attorney fees?”  The answer to this question is a very unsatisfying “maybe.” 

As a general rule, in the American legal system, parties each pay their own attorney fees.  Utah follows the “American rule” regarding legal fees, with the exception that legal fees can be awarded if allowed by a specific contract provision or statute, or if it can be proven that the other party asserted claims or defenses in bad faith. 

Even so, an award of attorney fees is not always a given.  Even if authorized by a contract or statute, the right to an award extends only to the prevailing party.  Determining who prevailed in litigation can often be difficult, especially when the parties assert claims against each other and the parties obtain mixed results. 

Under Utah precedent, trial courts are tasked with identifying the prevailing party in a litigation by applying a “common sense flexible and reasoned approach to determine which party, if any, is the prevailing party.”  Fisher v. Davidhizar, 2021 UT App 38, ¶ 30, 491 P.3d 110, 117.  Under this approach, “the court not only considers which party obtained the net judgment, but also applies several ‘common sense factors.’” Id.  These factors include, “(1) contractual language, (2) the number of claims, counterclaims, cross-claims, etc., brought by the parties, (3) the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole, and (4) the dollar amounts attached to and awarded in connection with the various claims.”  R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119, 1127.  Further confusing the issue is Utah case law holding that “in some circumstances both parties may be considered to have prevailed.”  R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 24, 40 P.3d 1119, 1126.  Ultimately, Utah law “leave[s] it to the trial courts’ discretion to decide which additional common sense perspectives are most appropriate to consider,” in determining the prevailing party in a litigation.” A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, ¶ 26, 94 P.3d 270, 277. 

As can be seen from this case law, determining who is entitled to an award of attorney fees after litigation is often a confusing, uncertain, and difficult task with no guaranties. The takeaway . . . if you decide to sue, don’t expect an award of attorney fees. That way, if you recover your attorney fees, its a bonus! 

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Am I Married, or Not?

In the United States and around much of the world, the institution of marriage is recognized and promoted by providing married couple with specific benefits and rights regarding their spouse.  These rights include the right to inherit, the right to a share of assets accumulated during the marriage, parental rights regarding children, and the right to make decisions after the spouse passes away. 

Some believe that merely living together, or having children together, automatically creates a “common law marriage.”  But this is not the case.  In fact, there are only nine States that have specific laws recognizing un-solemnized marriages.  Although Utah is one of the nine States, Utah’s law does not extend marital rights until the un-solemnized marriage is recognized by a Court order. 

Under Utah law, in order have an un-solemnized marriage legally recognized the parties must prove that they 1) are of legal age and capable of giving consent, 2) are legally able to marry, 3) have lived together, 4) have assumed marital rights, duties, and obligations, and 4) can show that they have held themselves out to others as being married and have gained a general reputation in the community of being husband and wife.  Utah Code § 30-1-4.5

To legally marry the parties must be of legal age.  Generally, the age of majority in Utah is 18.  However, 16 and 17 year olds can legally marry with the consent of one parent. Utah Code § 30-1-9.  Also, the parties cannot already be married to someone else. Utah Code § 03-1-2.  Nor can the marriage be “incestuous,” meaning, it cannot be between a child and parent, siblings, aunts or uncles and nieces or nephews, or first cousins. Utah Code § 30-1-1.

The parties must have “cohabitated,” meaning, they have lived together. This is typically the easiest of the elements to establish.

The most difficult element to establish is usually the element of proving a general reputation in the community as a married couple.  Proof of this element typically includes whether one of the parties took the other parties last name, referring to each other as husband or wife, filing tax returns as married, and having their closest friends consider them married.

If any of the elements are absent, the alleged marriage will not be recognized under Utah law.  For example, if “the parties’ closest friends do not consider the parties married” or they are “not consistent in holding themselves out as married to the rest of the world,” the alleged marriage will fail.  Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460 P.3d 1054, 1057.

It is also important to remember that spousal “rights stemming from a common-law marriage must be perfected through a judicial proceeding before those rights take legal effect.” Matter of Adoption of K.T.B., 2020 UT 51, ¶ 109, 472 P.3d 843, 872.  This can be very important if your spouse dies before having the un-solemnized marriage recognized by a court.  Without the court order you may be unable to establish a right to determine the place and manner of interment or a right to inherit from the spouse.

Determining whether a couple is married can have significant ramifications.  Often, disagreements arise between parties to a relationship about whether they are married, especially when the relationship is ending.  A party alleging marriage may be seeking child support, alimony, or a share of assets acquired during the relationship.  The other party will likely claim that there is no marriage, and therefore, no right to claim child support, alimony, or assets.

In short, if you believe your relationship is a marriage that has not been solemnized, it is advisable to seek legal counsel to discuss how the relationship can be recognized under Utah law.  If you wait to do so until the relationship ends, or until after your spouse dies, you will very likely end up in a protracted legal fight.

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I Agreed to WHAT?

The Duty of Good Faith and Fair Dealing

Most people understand that when they sign a contract, they are bound by the agreements and obligations written in the contract. However, what most people don’t realize is that, in Utah, “all contracts contain a covenant of good faith and fair dealing.” Vander Veur v. Groove Entm’t Techs., 2019 UT 64, ¶ 9, 452 P.3d 1173, 1177. This is true, even if the contract does not include any text specifically referring to the covenant of good faith and fair dealing.

As explained by the Utah Supreme Court, the covenant operates by “inferring as a term of every contract a duty to perform in the good faith manner that the parties surely would have agreed to if they had foreseen and addressed the circumstance giving rise to their dispute.” Id. The inferred covenant provides that, “each party impliedly promises that he will not intentionally or purposely do anything which will destroy or injure the other party’s right to receive the fruits of the contract.” Id.

As an extreme example, suppose Betty signs a written contract with Sam to pay $1,500 for Sam’s mountain bike. The contract says Betty can take possession of the bike immediately, but doesn’t specifically state how or when Betty has to pay Sam. Betty, takes possession of the bike, but tells Sam she will pay him with $1,500 worth of potatoes from her garden after next harvest. Sam objects, but Betty claims she hasn’t breached the contract because the contract doesn’t specifically require her to immediately pay or to pay with cash.

Betty is wrong. She has violated the inferred duty of good faith and fair dealing that attaches to every contract in Utah. Under the circumstances, it is obvious that Sam expected to be paid in cash at the time Betty took possession of the mountain bike. It is extremely unlikely that he would have agreed to the contract if he knew he would be paid in potatoes a year from now.

Ultimately, the inferred duty of good faith and fair dealing is about equity and fairness. All parties to a contract must act in good faith and refrain from unreasonable, or unfair, practices in fulfilling the terms of a contract.

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What is “Probate?”

The LawMost people have heard the word “probate,” but may not be sure what, exactly, a probate is.

Probate refers to the court proceedings and processes required by state law to pass a person’s “estate” to those designated to receive it.  The word “estate” means all the property held in a person’s name when they die.  For example, most people have financial assets like bank accounts, brokerage accounts, or retirement savings accounts.  Many people own real estate such as a personal residence and may own vacation or investment real estate.  Other common assets include tangible personal property (i.e. clothes, cars, collectibles, electronics, etc.), life insurance policies, and safe deposit boxes.

In Utah probate is required when a person dies with an estate worth $100,000 or more, or if they own any real estate.  If probate is required, the estate assets will be inaccessible to the inheritors until the probate is commenced.

So, how does a person begin a probate in Utah.  The first step is to file an application for probate in the district court in the county were the person last resided.  The application must include specific information about the person who died (the “decedent”), the decedent’s currently living heirs, whether the decedent had a will, as well as other important information.  The application must also identify a person who is designated, or wishes to be, the “personal representative” of the estate.  Once appointed by the court, the personal representative will receive authority from the court to take control of the estate assets, contact heirs and creditors, pay estate debts, sell estate property, and ultimately distribute estate money and assets to the appropriate inheritors.

At first glance, probate may seem straight-forward.  However, it can be confusing, time consuming, and expensive to have to deal with the required court proceedings.  Also, because probate is conducted in the courts, it is a public process.  For these reasons, many people prefer to avoid probate, if possible.

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The Power of the “Power of Attorney”

Power of AttorneyA “Power of Attorney” is an important legal document that grants to another person the legal right and ability to act on your behalf.

Powers of attorney can be broad or narrow, depending on your needs.  A “general” power of attorney grants broad powers to another to do just about anything you can do for yourself, such as enter contracts, open bank accounts, or make other financial decisions.  A power of attorney can also be “limited” to specific actions, such as signing a single document on your behalf.

A “durable” power of attorney remains valid even if you become incapacitated and can’t make decisions for yourself.  A “Durable General Power of Attorney” is commonly used in estate planning for just such a circumstance; making it possible for your designated agent to make financial decisions on your behalf if you are incapacitated for any reason.

It’s important to remember, however, that the Durable General Power of Attorney allows your agent to act on your behalf even if you are not incapacitated, and you will bound by the actions of the agent.  Some people feel uncomfortable with this and choose to execute a “Springing General Power of Attorney,” which “springs” into effect upon a persons incapacity.  While the “springing” power of attorney grants no authority to act in your name until you become incapacitated, it has the negative feature of needing certain formalities to occur before your agent can act for you.  For example, many springing powers of attorney require that a physician issue a letter documenting your incapacity before the agent can act for you.

All powers of attorney become void upon your death.

It is advisable to have some form of power of attorney in place in case of your incapacity.  Otherwise important financial assets may become locked and actions delayed upon your incapacity.

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Know Before You Rent!

Room for RentWith the advent of the sharing economy and websites such as airbnb.com and vrbo.com, many people have considered renting their primary or second residences to supplement income or defray maintenance expenses.  This practice can lead to disputes with neighbors and local governing authorities.  While renting is typically a “property right” that inures to the owner of real estate, it can be limited by restrictive covenants, home owners association agreements, and/or local zoning ordinances.

Most modern subdivisions include “covenants, conditions, and restrictions,” or CCRs, that run with the land.  CCRs often restrict an owners ability to rent the property or, in the alternative, set certain conditions that must be met before rental can occur.  Similarly, some properties are part of a home owners association, or HOA.  HOAs impose, by contract, certain restrictions on the use of member properties.

Local zoning ordinances may also restrict or prohibit renting of a residence.  In some cases, the zoning ordinance will only allow rental as a “conditional use.”  As the term implies, in these instances, rental is allowed so long as certain “conditions” are met.  Establishing that a property meets the imposed conditions can be a complicated process that typically requires notice to surrounding property owners, interaction with local fire, building, and other authorities, and public meetings.

Renting prior to fully understanding restrictions that may apply to the property can lead to disputes and imposition of fines.  We are often asked to assist homeowners to determine if they have the right to rent out their residence or to assist in the “conditional use” process.  We would be happy to assist you in the event you are contemplating renting out your residence (or are already doing so).

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Co-Owners and Property Rights

property-disputeWe are often contacted by clients who find themselves in difficult situations because they purchased real property with a non-spouse third party such as a boyfriend, girlfriend, in-law, or child. The reasons for doing so are varied and usually good-intentioned. For example, a parent might want to help their child or a child’s spouse build a credit rating. An unmarried couple may be engaged and purchased the property together in anticipation of marriage. In the most difficult cases, while both parties take title to the home, only one is obligated under the mortgage loan. If these relationships deteriorate, it leaves the parties in a very difficult situation. Especially the person who is liable for the loan. It is important to understand that when people take title to property together, they each have an undivided right to occupy or otherwise enjoy the property. If the relationship sours or one party finds themselves paying all of the bills related to the real estate, there are very limited measures that can be taken to unwind the transaction if the other party does not cooperate. The property cannot be placed on the market without the consent of both parties and the parties cannot charge each other rent, even if only one is living in the property. Short of litigation, there is no way to force a co-owner to vacate the property or to pay their fair share of expenses. Litigation, in these case, typically takes the form of a Complaint for Sale in Lieu of Partition, in which the Plaintiff asks the Court to force the real estate to be sold and any equity split among the owners. This litigation is time consuming, expensive, and often leads to a sale for less than market value. If you are considering purchasing real property with someone who is not your spouse, consult with a competent attorney to discuss measures to protect your interest and avoid costly litigation if the relationship deteriorates.

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Will the Real Property Line Please Stand Up?

OldFenceThe advent of satellite and GPS technology has unexpectedly increased property line disputes.  Now that we can map property line descriptions with incredible accuracy, many land owners are discovering that the “old fence line” is not on the “real property line.”  This has led to neighbors, and even whole neighborhoods, fighting over who owns what and where the real property lines are.

One Utah legal doctrine that helps resolve these issues is the doctrine of “boundary by acquiescence.”  Under this legal doctrine if you can show that a fence, monument, building, or other visible marker has been accepted as the boundary for a period of at least 20 years, that marker becomes the property line as a matter of law.  In fact the Utah Supreme Court recently ruled that title to disputed property automatically vests, based on the marker, once all of the elements of boundary by acquiescence are met.  In other words, no document need be drafted or filed to memorialize the “new” property line.  Once the 20 year period and other elements are met, the fence, building, or monument automatically becomes the property line, as a mater of law, regardless of what a prior legal description or other document says.  See Q-2 L.L.C. v. Hughes, 2016 UT 8, ¶ 24, 368 P.3d 86, 96, holding modified by Anderson v. Fautin, 2016 UT 22, ¶ 24, 379 P.3d 1186.

The idea behind this legal principle is that if everyone has accepted the marker as the property line for at least two decades, then there is no cause of action because the parties have established the property line by agreement.  So before you tell you neighbor that his fence is on your property, be sure to do a little historical research!


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Preparation – It’s Easier Than You Think!

As with many new undertakings in life, when you’ve decided to begin planning your estate, it’s easy to be left feeling overwhelmed, intimidated, and wondering where to start. Aside from finding an estate planning attorney, knowing what information you’ll need can help to ease these feelings.

The following is a list of information you can expect an attorney to request when you begin planning your estate:

  • Most recent personal tax returns
  • A list of any real estate you own
  • A list of any businesses you hold an interest in
  • A list of all bank/brokerage/retirement accounts
  • A list of any other large items of personal property (boats, trailers, etc.)

In addition to providing the above information, giving some thought to some pertinent topics is beneficial. The following is a list of questions to think about before beginning to plan your estate:

  • Who do you want to pass various parts of your estate to?
  • What are your wishes in regards to life saving measures?
  • What are your wishes in regards to the disposition of your body after the time of passing?
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