*1 opinion, counsel his her in fulfills lined this Although HARPER, Harper, in clients Frank
role as an advocate. Richard D. Jane pa- Richins, termination of proceedings Cattelan, and Plain criminal Richard enjoy right to counsel rights Cross-appellants, rental cases tiffs, Appellees, and they right pursue have a appeal, do not duty appeals. frivolous Counsel appeal by right safeguard their clients’ COUNTY, body politic; Sum SUMMIT representa- diligent competent providing County Commission; Coun mit tion, duty comply also have a but counsel Commission; ty Planning and Utelite obligations as officers of
with their ethical Defendants, Appellants, Corporation, with, pro- strictly complied the court. If Cross-appellees. opinion allows counsel cedure outlined in this when counsel concludes to fulfill both duties No. 961486-CA. Supreme they conflict. As the United States Appeals of Utah. explained Anders: Court Court ap- requirement would not force This his case pointed [or her] counsel to brief merely
against
client
would
[or her]
his
but
advocacy
which a
afford the latter
It
nonindigent defendant is able to obtain.
pursue
court to
all
also induce the
would
vigorously its own review be-
the more
only
ready references not
cause of the
record,
legal
authorities
but also
Moreover,
by counsel....
as furnished it
protect coun-
handling would tend to
such
constantly increasing charge
sel from the
ineffective and had not
she]
that he
[or
diligence to
the ease with that
handled
indigent
defendant
is entitled.
penniless defen-
procedure
This
will assure
opportunities on
rights
same
dants the
nearly
practicable
—as
—as
enjoyed by
persons who are
those
who are able to afford
similar situation but
private counsel.
the retention of
Anders,
at 1400.
Counsels’ brief that com- is ordered to file new L.C. set forth this plies requirements with the to file a opinion. for J.P. is ordered Counsel and a new brief that motion to withdraw complies requirements set forth opinion. GREENWOOD, JJ., concur. BENCH and
771 *3 Warlaumont, Jeffrey Appel, L. W.
James Wilson, City, Benjamin T. Lake Salt Appellees. WILKINS, P.J., Associate
Before JACKSON, JJ. BENCH
OPINION
WILKINS, Presiding Judge: Associate Defendants, County entities the Summit (Summit County) Corporation and Utelite (Utelite), jointly from' several *4 rulings. appeal from a court Defendants partial judgment order entered Harper, of Judge Wilkinson in favor Jane Cattelan, Frank and Harper, Richard D. (plaintiffs). Richins Defendants also Richard in the appeal Judge from Wilkinson’s denial summary judgment of their motions to order nonjoinder of Union Pacific dismiss based (the Railroad) Judge and from Railroad attorney granting plaintiffs fees Noel’s order the Utah and Public under (1998). 52-4-9(2) Act, §Ann. see Utah Code Further, Judge from that Utelite is liable Noel’s determination solely per a claim of se based under nuisance County violation of the Devel- its Summit opment part We affirm and reverse Code. Judge summary judg- in part Wilkinson’s order, and reverse Noel’s ment de- per and nuisance se order fees termination. cross-appeal from Brian’s
Plaintiffs third denying motion to file a order complaint; Judge Noel’s denial amended motion for fees under 1983,1988 (1981); Judge §§ Iwasaki’s U.S.C. County’s request for granting Summit order 26(c) Rule under protective order Procedure; Judge Noel’s Rules of Civil Jury grant for Utelite’s Motion decision View; Judge adoption findings Burnett, City, Ap- Lake for Jody K. Salt prepared by law Utel- fact and conclusions of pellants. relief; equitable regarding ite’s counsel County, County Commis- Mo- granting Summit Summit Brian’s Utelite’s order sion, County af- Planning Regarding: Commis- in Limine Access. We and Summit tion Olson, Ap- presented in the cross- sion, City, Lake for firm on all issues Eric C. Salt appeal.1 pellant Corporation. Utelite lengthy judges are involved in this record has been
1. We note that voluminous past years, litigation appeal because of the Third Dis- in this over the nine amassed case system rotating problematic hearings great involving trict Court’s a multitude of Wright, County. judges in See Gillmor v. that five Summit of orders. We further note succession ruling reduced BACKGROUND an for writing in the form of order receiving ap- after spring of In the findings of fact and judgment and building permit from proval and an electrical law, August issued both conclusions a railroad load- County, built Utelite Summit undisputed findings of Based on his Rail- portion of the ing facility on a leased conclusions, Judge Wilkinson legal fact and Echo, way in On right of Utah. road’s re- County shall be ordered “Summit own homes near plaintiffs, who the removal quired to effectuate against Coun- way, filed suit right of currently occupied site.” from them county illegally ap- asserting had ty County § 1.16 Development Code of Summit facility. Utelite’s proved permitted 1989) of struc- (July (authorizing removal Code). alleged, How- complaint, plaintiffs In their violate tures that County had things, ever, stayed this order among that Summit other Wilkinson rights, interlocutory appeal to sixty days pending due violated (Develop- Court, summarily Supreme the Utah Code), Open and Public appeal. ment and Utah’s denied Act, §§ see Utah Code 52-4-1 a motion for Plaintiffs thereafter filed violations, (1998). these Based on to -10 why to show cause require the trial court plaintiffs asked *5 required not be to abide “should County cease to ensure Summit [ejffectu- ... against them to Order entered facility plaintiffs their using its and to award the Utelite immediate removal of ate the attorney fees. Judge to set aside facility.” Utelite moved summary judgment and partial Wilkinson’s complaint to their Plaintiffs later amended hearing— After a new affidavits. submitted but did not add name Utelite as defendant transcript Judge we also have no for which any against or state claims new theories — stayed Young plaintiffs’ motion and denied filed a motion for Plaintiffs then Utelite. facility “pending a final Utelite’s removal of County, summary judgment against Summit against remaining claims all of all resolution undisputed material facts arguing the entry of a final order parties and the a matter of law that Summit showed as adjudicating judgment form of appropriate plaintiffs’ process County violated due had against all remaining claims the merits of all Code, Development and the Utah rights, the parties.” Judge Young further denied Utel- Meetings Act. Open and Public Summit motion to set aside the ite’s the case under County moved to dismiss judgment. 19(c) Rules of Civil Proce- Rule of the Utah joined the plaintiffs had not dure because plaintiffs filed second In March Although plaintiffs Railroad as a defendant. claiming, among other complaint amended brought against Utelite yet had not claims per a nuisance things, that Utelite’s participated during period, Utelite also Further, complaint the second amended se. filing proceedings by motions and in these §§ and 1988 as a specified 42 U.S.C. memoranda. recovering fees from Sum- basis for regarding plaintiffs’ process due County mit during hearing Judge held Wilkinson claim. summary judgment motion plaintiffs’ memoranda, orders, motions, flurry At The argued and submitted.” “presented, was through discovery endeavors continued hearing, Judge Wilkinson the end day opening state- bench, of trial. Before granting plaintiffs’ the first from the ruled ments, successfully moved that denying summary judgment motion and a matter of law that the Judge The Noel rule as County’s motion to dismiss. Summit per Judge a nuisance se based transcript of this not contain record does partial summary ruling. conclusion on Judge Wilkinson’s hearing, except for Wilkinson’s J., (Utah 1993) (Orme, judges). rotating P.2d 438-40 system (discussing County's concurring) Summit grant of challenging In facility was built in judgment Utelite’s favor, judgment plaintiffs’ partial summary Having Code. violation Wilkinson incorrect- liability under that theo- Utelite’s established (1) ly violated concluded that Summit claims with- plaintiffs dropped other ry, (2) Code; the Utah jury proceeded trial prejudice, and out Act, and Public see Utah Code the amount of dam- primarily to determine (1998); §§ plain- to -10 52-4-1 per any, arising from the nuisance se ages, if rights. tiffs’ due Defendants also Meanwhile, Judge Noel “also heard claim. erroneously argue Judge Wilkinson ordered respect the evidence with County to the removal of ensure equitable supplementary relief claim for facility. Utelite’s already ac- any th[e] such relief awarded plaintiffs dam- jury then awarded tion.” Summary judgment may be granted se, per ages under nuisance Noel only genuine of material fact when no issues plaintiffs “any eq- further award declined exist and the movant is entitled to equitable uitable relief ... other than 56; law. R. Civ. P. as matter of See Utah granted by Judge previously relief Wilkin- Ins., Shields, Shepherd Ron Inc. v. son.” (Utah 1994). Because an summary judgment only legal from involves 1,1996, May granted plain- Noel On issues, trial “we do defer to the court’s County for at- against tiffs’ motion rulings.” Shepherd, Ron at 654. Open and Public torney fees under the Utah Instead, determine whether Law, §Ann. 52-4- see Utah Code correctly correctly applied law and 9(2), against motion but denied disputed no issues of materi determined that fees under 42 al fact See id. existed. §§ and 1988. Noel also U.S.C. “implementation stayed of the Order Grant- *6 the Fa- Whether Construction Utelite of Summary Judgment ing Partial entered on cility County the De- Violated Summit 23, by Judge
August 1993 Wilkinson which velopment Code facility the requires the removal of of Utelite Echo, occupied currently at from its site We first address the correctness of pendency appeal during judg ... determination on Wilkinson’s County in this action.” De ment that violated the conclusions, velopment findings, In Code. his order, specify not Wilkinson did ANALYSIS County Develop how Summit violated the County and Utelite Defendants Summit inability to under ment Code. our plaintiffs cross-appeal, presenting appeal trial court’s decision stand the basis myriad issues for our consideration. We in this not hurt claim instance does raise address issues defendants “ first may grant ... “affirm ‘[w]e appeal. summary judgment any ground available court, even if it is one not relied trial ’ ” Appeal I. Defendants’ County Bangert v. on below.” Salt Lake 1996) (citations (Utah er, 384, 928 P.2d jointly appeal Wilkin- Defendants omitted). They summary judgment orders. also son’s attorney fees jointly appeal Judge Noel’s or- summary judgment In their memo- both per se determination. der and nuisance brief, appellate their randa and analysis begin our address- Development Code claim on two base their challenge to or- ing their First, plaintiffs allege allegations. that Sum- summary judgment granting partial der utterly County mit to issue certificate failed plaintiffs’ favor. Second, plaintiffs compliance. ar- zoning timely gue County failed to Challenge the Trial that Summit A. Defendants’ permits. building Defen- Granting Plaintiffs Par- issue the correct Court’s Order deny allegations. In- these Summary Judgment dants do tial County affi stead, two argue despite that these submitted defendants Development Code was not vio- issue of purporting failures davits address the facility is ac- facility accessory lated because a valid Utelite’s is a valid use. whether the cessory pre-existing Railroad’s Averett, use to the that of Eric A. One affidavit was use. County Building Inspector when the facility Averett’s was constructed. Development an ac The Code defines states, part: “That as affidavit relevant cessory use custom subordinate use “[a] Building the Summit Official upon arily incidental to and located the same was, my opinion it Building Inspector, and is occupied main use lot and devoted loading apparatus that was the Utelite exclusively premises.” main use of the square accessory building with less than 120 of Summit exempt foot such was from the roof and as 1.6(63) correctly (July Defendants Building requirements Permit of the Uniform joint in their that whether brief Utel- affidavit Building this [C]ode.” accessory use is ite’s is an a determi merely legal that the states conclusion only by of law can be nation answered use, accessory was is an and as such considering underlying factual situation. exempt from the build Corp., Code’s Alta v. Hame 836 P.2d Ben (Utah permit ing requirements. It does not set Ct.App.1992). then Defendants complain specific legal forth bare Wilkinson arrived his facts and, therefore, if dispute. decision as there were no factual conclusion fails show id.; genuine there ais issue for trial. See summary judgment, the On movant bears Okubo, see also Butterfield informing the initial burden of (Utah 1992) (stating expert’s affida even identifying of the basis for its motion only expert’s opinion, vit include not must portions pleadings supporting docu supporting- specific logically but facts also ments the movant believes demonstrate conclusion); expert’s Corp. Busch v. State genuine issue material the absence of a Co., Farm Fire & Cas. Allred, Partnership v. fact. See TS 1 (Utah 1987) (stating may properly trial court (Utah Ct.App.1994). Plaintiffs genuine un conclude no issues of fact exist properly supported met this burden and less face of nonmovant’s affidavit affirmative then their motion.2 The burden shifted to issue); ly Trelog discloses existence of such to demonstrate gan Treloggan, appropriate by setting *7 1985) nonmoving (stating party’s affidavit specific showing genu there forth facts was a specific evidentiary ine issue for trial. DLB must Collection Trust contain facts show Harris, trial). Ct.App. ing genuine existence issue for burden, Therefore, To meet defendants Averett’s not meet affidavit does 56(e)’s upon allegations could “not rest the mere or requirements. Rule pleading[s], denials of but re [their] [their] by sponse^], pro or as affidavits otherwise County Summit also submitted the rule], [by specific to]
vided
set forth
[had
Andersen, Deputy
P.
affidavit of Franklin
showing
genuine
there [was]
facts
that
a
County Attorney.
Attached to An
56(e).
for trial.”
R.
P.
issue
Utah
Civ.
letter,
by
a
signed
dersen’s affidavit is
An
plaintiffs’
dersen
attorney,
and written to
County
appears
attempted
It
to
that
56(e)
explains
opinion
Andersen’s
that Utel-
satisfy
by submitting
in
Rule
affidavits
facility
accessory
ite’s
is a valid
support
facility
use under
argument
of its
that Utelite’s
Development
af
accessory
a valid
use.
con-
Code.
Andersen’s
is
we
states,
merely
to
fidavit
“I
properly
clude these affidavits failed
“set
am the author of
specific
showing
bearing my
that
signature,
forth
facts
there
certain letter
dat
[was]
13, 1990,
genuine
February
issue
trial.” Id.
ed
and
for
addressed to Jef-
example, plaintiffs supported
garding
building permits
2. For
their claim
the electrical
Sum-
County
Development
that Summit
violated
County
mit
issued Utelite.
verifying undisputed
Code with
re-
exhibits
facts
County Violated the
2. Whether Summit
copy of
is attached
frey
Appel, a
W.
Meetings Act
Open and Public
by
Utah
part hereof
reference.”
and made a
hereto
the truthful-
testify
to
The affidavit does
the trial court
We next address whether
any way.
letter’s contents
ness of the
correctly
County vio-
that Summit
concluded
Instead,
testifies
only issue the affidavit
Open
and Public
lated
Utah
letter
that Andersen
regarding the
is
Act.
the trial
erred
Defendants
Therefore,
only
it.
we
consider the
wrote
drawing
this conclusion because
affidavit
in terms of what Andersen’s
letter
applicable
statute of
claim is barred
Andersen
to—that
it is
document
swears
limitations.6
such,
affidavit,
like
authored.3 As
Averett’s
13,1988,
represen-
a Utelite
On December
accompanying
and the
Andersen’s affidavit
County Planning
a Summit
tative attended
specific
regarding
facts
do not set forth
letter
meeting.
County
A Summit
Commission
accessory
argument showing
use
defendants’
Planning
suggest-
had
employee
Commission
for trial.
genuine
there is a
issue
representative
that Utelite
ed
and cannot
reviewed
record
meeting
the Commis-
speak
attend the
any
documents submitted
de-
find
other
approval
getting
about
to build
Utel-
sion
support-
specific facts
setting forth
fendants
meeting,
facility in Echo. At the
Utelite’s
ite
facility
sat-
ing
argument
their
Utelite’s
representative discussed construction of
accessory
exception
use
is
isfies
Planning
Utel-
with
Commission.
Development
exempt
from the
therefore
letter,
ite later
sent on
Plan-
received
result,
requirements.4
behalf,
As a
we con-
Code
ning
chairman’s
confirm-
Commission
adequately
did not
clude defendants
ing
meeting
the December 13
discussion and
argument
specific
accessory use
Planning
indicating that
Commission
genuine
there
showing
facts
issue
agreed
operation
the Utelite
could be
claim that
Wanship
in terms
moved from
Echo
would be
permitted
proposed
violated the
Code.
at the
considered a
use
Therefore,
did
conclude the trial court
not Echo
Plaintiffs’
claims Summit
we
site.
suit
concluding
Open
violated
the Utah
and Public
err
violated
Act,
affirm the sum-
see Utah
52-4-6
Code and
(1998),7
13,1988
the December
meet-
mary judgment order as to that issue.5
because
56(e)
accessory
use
Utah
Civil Procedure
tention that Utelite’s
3. Rule
Rules of
pre-existing
we
provides:
to the Railroad's
use. Because
accessory
argu-
rejected
use
have
ment,
defendants’
opposing
Supporting
affidavits shall be
12(b)(7)
argu-
reject
their Rule
also
knowledge,
personal
shall set
made on
forth
ment.
evidence,
be
such facts as would
admissible
affirmatively that the affiant is
and shall show
argue they did not violate the
testify
also
competent
stated there-
Defendants
matters
Meetings Act
papers
and Public
copies of all
in. Sworn or certified
representative dropping in and
act of Utelite’s
parts
referred to in an affidavit shall be
thereof
*8
op-
discussing
was a "routine
the Utelite
or served
attached thereto
therewith.
require specific
event that did not
erational"
summary
transcript
the
of the
4. We note that
public meeting agenda. We
the
do not
notice on
hearing
available
us
was not made
argument
we conclude the
address this
its
appeal. We therefore cannot review con-
plaintiffs’ claim.
bars
statute of limitations
whether additional evidence
tents
determine
presented
support of
motions.
was
in
defendants’
part:
provides,
relevant
7. Section 52-4-6
in
However,
appeal
note that on
none of
we also
(1)
body
regular
Any public
holds
present-
any
parties
evidence
have referred
the
meetings that
scheduled in advance over
are
judgment hearing.
ed at the
year
give public
at
of a
shall
notice
course
meeting
year
each
its annual
Wilkinson's
least once
5. Defendants also
from
12(b)(7)
pub-
provided in this section. The
to dismiss
schedule as
denial of their Rule
motion
date, time,
specify
place
party,
join
indispensable
lic notice shall
see
for failure to
12(b)(7),
meetings.
arguing
the trial court
such
Utah R. Civ. P.
(2)
requirements
concluding
not a
In addition
the notice
nec-
erred
Railroad
section,
19(a),
(b).
public body
each
party,
of this
essary
However,
indispensable
id.
Subsection
see
public
give
than 24
notice
argument
its
shall
not less
hours’
rests on
con-
defendants'
against any
of limitations
tion of the statute
provide public notice
ing agenda
not
did
resulting from the
the defendant
prejudice to
discussed. With
would be
the Utelite
a
before
passage of time.” Id.
claim,
Open and Public
the Utah
such a
test,
plaintiff
must first
this
court reaches
plaintiffs to file suit
required
Act
know of and
plaintiff did not
“that the
the December
show
ninety days after
within
reasonably
known of the exis-
could not
52-4-8
meeting.
Utah Code
See
a
in time to file
cause of action
tence of the
(1998). However,
file suit
plaintiffs did not
Warren,
(well
period.”
limitation
claim within the
31, 1990,
months
nineteen
until
meeting
838 P.2d at
days)
occurred.
ninety
after
over
“Generally,
cause of action accrues
dis
a claimant
issue of when
“[T]he
begins
of limitations
and the relevant statute
facts
have discovered the
or should
covered
the last event
‘upon
happening of
to run
action is a
forming
of a cause of
the basis
...
of action
necessary
complete the cause
fact,
conclu
question
and the fact finder’s
the existence of the
ignorance
mere
[and]
it
appeal unless
cannot be overturned on
sion
running
prevent
cause of action does
Sevy,
vacate
motion,
plaintiff
ulti
proof for its
has
attorney fees.
plain
proving
mate burden of
all elements of
action).
tiffs
therefore conclude
cause of
We
3.
Violated Plain-
Whether
granting
the trial
erred in
Rights
Due Process
tiffs’
judgment
process claim.
on
due
plaintiffs
trial
awarded
sum-
The
court also
process
mary
on their due
claim.
by Re-
4. Whether the Trial Court Erred
the trial court
On
quiring
County to
Effectuate
concluding
erred
violated
Facility
Removal Utelite’s
rights.
agree
process
due
granting plaintiffs partial
In its
sum-
plaintiffs did not
defendants because
meet
mary
granted plain-
summary judgment.9
judgment,
trial court
their
on
burden
Furthermore,
began
any
on Feb-
plaintiffs did make
show
construction
the Utelitc
8.
not
1989,
support tolling
ing
ruary
opened
statute of limitations
or when the
ninety days
plaintiffs
Warren,
before
filed
claim
until
April
1129.
1989.
838 P.2d at
Cf.
years after
December
one and one-half
meeting
discovery
The
rule does
occurred.
specifically
state whether their
Plaintiffs do
indefinitely
running
applicable
toll the
due
claim is
on the Utah or United
based
only
the statute
of limitations.
It
tolls
statute
plaintiffs'
States Constitution.
plaintiff
time the
first
until "the
knew
limitations
cases,
only
indicating
brief
theirs
cites
federal
giving
rise
or should
known
facts
process complaint,
base
was' a federal due
Reyn
Dean Witter
cause
action.” Anderson
analysis on
constitutional law.
our
federal
Inc.,
(Utah
olds,
Cf.
Ct.App.),
cert.
Ramirez,
(Utah
State
379 n. 4
denied,
tiffs’ equitable estoppel against the County to the removal of ite a claim of ensure However, facility. County. does not affect Defendants that this issue Utelite’s but, valid, injunctive if plaintiffs is an issue defendants grant of relief. a later time. We thus will have to resolve at first note that defendants have We reject arguments. both of defendants’ plaintiffs were that not not demonstrated result, have not demon- As a defendants facil the removal of Utelite’s entitled to seek were not autho- plaintiffs strated either that admit that the events ity. Defendants when facility rized to seek removal of Utelite’s or and when giving rise to this action occurred injunctive relief Judge that suit, plaintiffs initiated Utah law authorized Therefore, reject law. violates we defen- plaintiffs injunction[s] ... to “institute or challenge Judge dants’ Wilkinson’s order prevent, enjoin, or re proceedings to abate requiring ensure that building, the unlawful use or act.” See move facility is Utelite removed.10 (repealed Code Ann. 17-27-23 Utah 1992). 1, also admit Defendants Challenge to the B. Defendants’ Trial Supreme interpreted Court this Utah Court’s Conclusion that the Violation requiring specific showing not “a statute as County’s Development of Summit injury.” irreparable County v. Bax Was a Per Se Code Nuisance (Utah 1981). ter, such, As Judge also attack Defendants essentially defendants admit law conclusion, opening arguments made before plaintiffs authorized to seek removal trial, facility’s that the Utelite violation of successfully if Utelite Development Code constituted nuisance proved an unlaw that the Utelite per se. Whether the Code vio use, building, Plaintiffs did suc ful act. per constituted se lation a nuisance is a cessfully prove the of Utelite’s unlawfulness question of law we review correctness. facility by prevailing on their (Utah Pena, See State v. P.2d Thus, summary judgment. claim on plain admit the authorized defendants law injunctive granted tiffs to seek the relief recognize that Utah courts “[w]hen by them the trial court. giving the conditions rise to nuisance are Nevertheless, argu- statutory prohibition, make defendants two also violation of a they support per those conditions a nuisance ments contention constitute Petroleum, Inc., facility’s re- not have to se.” Branch v. should ensure Western (Utah First, 1982); argue that moval. defendants accord Turn (Utah Anderson, facility merely participating baugh Sorensen, accessory permitted by Development Ct.App.1990); see use also Erickson v. (“Nui above, explained Ct.App.1994) as we Code. have argument per se conduct defendants failed sance exists when the creat judgment, re- summary ing specifically prohibited and we therefore the nuisance is also ject Second, just argue by it. defendants statute —not that it is unlawful in the Judge Young, Judge summary 10. Defendants motion after-the-fact. Motions for Brian, declining granted Judge by and denied based on the Noel erred judge record before trial when the de- motion is revisit the issues Wilkinson resolved considered. subsequent spite expanded these record judges enjoyed, despite that these the fact Furthermore, addressed the we have issues judges could Wilkinson later conclude upon Wilkinson ruled and to which defen- legal made erroneous conclusions. point arguing judges dants now that later ignore the fact that Wilkinson revisiting. extent we erred To the judgment. error, His ruled on a motion for found have reversed Wilkinson's then, ruling, had to be on the record and based For us determine decisions. to now whether the arguments summary judgment. before him judges doing so other erred earlier rely supplementation cannot grant Defendants on their relief. would defendants no additional grant following argu- of the record therefore decline further consider this plaintiffs’ summary judgment judgment to defeat ment.
779 A. Trial Court’s Denial of Plaintiffs’ necessary show a sense to nuisance broader statute.”). File a Third Amended Com- Motion to public under the nuisance
plaint However, Supreme the Utah discovery, plaintiffs At the conclusion specifically a viola has declared Court complaint sought to a third amended file an does not constitute a tion of ordinance of the Rules of pursuant Rule 15 Utah to Padjen Shipley, per se. 553 nuisance by plaintiffs would Civil Procedure (Utah 1976). Indeed, claims, in Pad- against 939 present P.2d additional one two appears jen supreme against to have and one Utelite. the court Judge plaintiffs’ in Brian motion on adopted language of the court Schu denied (1) Silver, following proposed amendment bases: A.2d Pa.Cmwlth. bach involving significant delay by would result (1973), grounds, rev’d Pa. on other “ (2) discovery party; as a Railroad (1975), stating, A.2d 328 can ‘We days plaintiffs expired cutoff date four before simple holding that viola find no for (3) amend, denying filed their to motion zoning constitutes a nui tion of a ordinance ” proposed preju- amendment would not per Padjen, se.’ at 939 sance they plaintiffs dice obtain could 905). Schubach, A.2d at Be (quoting sought by court filing additional relief a new in this ease an cause what was violated was action. contend on Plaintiffs ordinance, conclude, we based on reason under none of these reasons sufficient Padjen, court ing in that the trial erred deny Rule 15 to their amendment. concluding Develop of the the violation per a nuisance ment Code constituted se.11 denying of granting “The Judge ruling Noel’s therefore reverse We pleading to leave amend a within broad regarding court, this issue. discretion of the trial and we will showing ruling disturb absent such summary, Judge In we affirm Wilkinson’s Am. abuse that discretion.” Mountain grant judgment respect McClellan, Credit Union v. claim, plaintiffs’ Code but re- fac Ct.App.1993). We consider three respect Open Utah it with verse reviewing ruling the trial on a tors court’s Public Act and due “(1) motion amend: timeliness result, reverse As claims. motion; (2) moving party’s reason for granting plaintiffs’ fees under order delay; resulting prejudice and Public Act. We the Utah Id. responding party.” requir- affirm also have reviewed the record We ing ensure Utelite’s facili- First, plain terms of of these factors. each but ty is removed reverse Noel’s con- file this amended tiffs did not seek to third Code clusion that violation partial summary complaint after until well per se. constituted nuisance discovery was entered plaintiffs Second, next the issues raise plaintiffs sought We address completed. cross-appeal. complaint they so could amend their relief.
seek additional noted, could addi plaintiffs Brian obtain the Cross-appeal II. Plaintiffs’ they sought third tional from the relief cross-appeal, present plaintiffs complaint filing several amended a new On Third, granting our We first the amendment for review. address action. issues already in a argument delay Brian com- a trial case that had would denying pending years because it would their mo- been mitted reversible error Having party. as a new complaint. involve the Railroad to file a third amended tion giving the "conditions rise” statutes could serve as shown how 11. Plaintiffs certain claim, prohibited by these per citing claim were se nuisance the basis for nuisance Branch, 17-27-7, -8, (1991) (re- statutory at 276. provisions. §§ and -23 argument. reject pealed therefore *12 780 er factors, Judge Noel argue Plaintiffs also we conclude each of these
considered to jury the to travel see roneously allowed in Judge Brian did abuse his discretion not operation. R. facility in See Utah the Utelite file third denying plaintiffs’ motion to 47(j). P. Plaintiffs that Civ. complaint. amended jury’s upcoming Utelite had notice Denial of Plaintiffs’ The Trial B. Court’s facility, jury the viewed tour of the Attorney for Fees Under Motion prepared for up cleaned that had been 1983,1988 §§ U.S.C. result, argue, plaintiffs their As a tour. plaintiffs’ argument Judge allowed the tour next address should have We Noel denying by prejudicial claim than Judge Noel erred their it be more because would §§ attorney probative. fees under 42 U.S.C. for trial court errone and 1988. Whether the or- Judge whether to Noel had discretion attorney plaintiffs under ously denied fees facility. See jury to view Utelite’s der the presents with a 1983 and 1988 us sections Cabututan, 861 P.2d State v. “ law for correctness. question of we review presumption to ‘There is a as the Pena, at 936. generally
See
ruling in
judge’s
the trial
correctness of
contrary,
absence of a demonstration
qualify
fees under
“To
for
upset absent
will not be
that decision
successfully
plaintiff
must
[section]
(quoting
clear
discretion.’” Id.
abuse of
rights
Am
prosecute a federal civil
action.”
(1991)).
§
Trial
Plaintiffs
Am.Jur.2d
Educ.,
Bd.
bus v. Utah State
of
clearly
Judge
have
Noel
not shown
(Utah 1993).
“That has not been
jury
allowing
in
to
abused his discretion
plaintiffs’
in this case.” Id. Even
sec
done
facility.
proba-
The visit was
visit Utelite’s
does not refer to
complaint
ond amended
jury
of
helping
tive in
the issue
decide
rights
civil
any
1983 or
other
statute.
section
damages
facility’s operation
on the
based
Therefore, plaintiffs are not entitled
See id.
addition, plaintiffs
In
of trial.
were
time
1988.
id.
to
fees under section
jury
to
evidence of the
present
able
to
result,
As a
we affirm the trial
at 1377.
up
had taken to clean
measures Utelite
plaintiffs’ request
for attor
court’s denial
jury’s
preparing
in
visit. Due
ney
fees under U.S.C.
circumstances,
say Judge
cannot
to these
ordering
Noel
his discretion
abused
Cross-appeal
jury
Other
on
facility.
C.
Issues
We therefore
view Utelite’s
reject plaintiffs’ argument.
other
on
Plaintiffs raise several
issues
plaintiffs’ arguments
Another
briefly. We
cross-appeal that we address
adopting
the find
Judge
Noel erred
plaintiffs’ argument
Judge
address
first
ings
prepared
of fact and conclusions of law
County a
granting
erred
Iwasaki
regarding equitable relief. Plain
plaintiffs
prohibiting
order
from
protective
findings
attempted
challenge
tiffs
have
any discovery against
county.
conducting
sup
addressing equitable
fact
relief and
by quoting
protec
porting Judge Noel’s conclusions
Judge
granted the
Iwasaki
stating
finding
fact
plain
all
each
and then
tive order because he concluded
contradicting it.
for an
against
evidence
claims
tiffs’ substantive
successfully challenge
appellant
a trial
Judge
when
Wil
had been resolved
“
fact,
findings
appellant
‘must
court’s
granted plaintiffs
kinson
find
support of the
marshal the evidence
judgment.
agree
We
Iwasaki’s
remand,
ings
despite
then demonstrate that
this
if on
based
conclusion.
evidence,
findings are
claims
the trial court’s
so
opinion, plaintiffs go forward with
lacking
“against
the clear
rea
be
against
County,
Iwasaki’s
evidence,”
weight
making them
protective
thus
soning
granting the
behind
’ ”
case,
Fitzger
“clearly
longer
In
erroneous.”
Valcarce
applicable.
no
be
will
(citations
(Utah 1998)
ald,
305, 312
appropriate
it
may
trial court
find
omitted).
26(c)
wholly
ruling.
Because
its Rule
reconsider
reject
reject
plaintiffs’ arguments
all of
requirement, we
to meet this
failed
cross-appeal. We affirm
Brian’s deni-
argument.
al of
motion
file a third amended
address
other ar-
We decline to
complaint
he
because we conclude
did
cross-appeal,
as that
guments on
such
We affirm
abuse his discretion.
erroneously granted
Brian
Utelite’s motion
*13
plaintiffs’ request
Noel’s denial of
for attor-
precluding
limine
on lack of ac-
in
evidence
§§
ney
fees under
U.S.C.
and 1988
cess,
they are
or
because
either meritless
successfully prose-
because
did not
disposed of
treatment of
as
result
our
rights
action.
also
cute
federal civil
We
Carter,
in
ease.
v.
other issues
See State
Judge
granting
affirm
Iwasaki’s order
Sum-
(Utah 1989).
886,
776 P.2d
888-89
order,
County protective
Judge
mit
Noel’s
granting
request
jury
order
Utelite’s
summary,
In
we affirm the trial court’s
facility,
Judge
findings
visit
Noel’s
to
its
and
plain-
regarding each of the issues
decisions
equitable
regarding
and conclusions
relief.
cross-appeal.
raise on
tiffs
reject
plaintiffs’
arguments
We
all of
other
appeal.
on
CONCLUSION
part,
We therefore affirm in
reverse
proceedings
part, and remand for further
Judge
grant
affirm
sum-
Wilkinson’s
opinion.
consistent with this
judgment
respect
mary
plaintiffs’
with
to
De-
claim,
it
velopment
but reverse
Code
with
BENCH, J., concurs.
and
respect
plaintiffs’
process
to
due
Utah
claims,
Open
Meetings
and Public
Act
and
JACKSON,
(concurring
part,
Judge
Judge
reverse
Wilkinson’s denial
defen-
concurring
part,
dissenting
in result in
and
plaintiffs’
dants’ motion to dismiss
Utah
part):
Open and
Act claim.
Public
Defen-
(1)
opinion
I
in the main
as
concur
to
summary
did
meet their
on
dants
not
burden
I.B.;
analysis
part
per
nuisance
se
found
judgment
present
supporting their
to
facts
(2)
H.A.,
part
Judge
affirming
Brian’s denial
argument that
is
accesso-
Utelite’s
plaintiffs’
a third
motion to file
amended
pre-existing
to
ry use
the Railroad’s
use.
(3)
II.C.,
complaint;
part
which affirms
and
Similarly, plaintiffs did meet their burden
order,
Judge
protective
Iwasaki’s
affirms
allege specific
summary judgment
on
facts
Judge
allowing
jury
order
to view
Noel’s
life,
they
of a
showing
deprived
were
facility, rejects plaintiffs’
attack
respect
liberty,
property
or
interest with
adoption
findings
Judge
of fact
Further, plaintiffs
their due
claim.
equitable
of law on
relief
conclusions
respect
did not meet their burden with
Utelite,
affirms
prepared
showing
exceptional
circumstances dis-
cross-appeal
arguments
other
because
covery
applied
be
in their case.
rule should
they
disposed
either meritless
in the
the results on other issues
Judge
reverse
Wilkinson’s based on
Because we
regarding parts
ease.
I
in the result
plaintiffs’ summary
mo-
concur
grant
I.A.4,
Judge
I.A.1. and
which affirm
of defendants’ motion
dis-
Wilkin-
tion
denial
County
violated
Open
son’s conclusion
Summit
regards
Utah
miss
claim,
in-
Development Code and his order of
Meetings Act
we also re-
its
and Public
fees,
concerning
junctive
Finally, I dissent
Judge
relief.
Noel’s award of
verse
I.A.2,
part
which reverses
Wilkinson’s
on that act. We affirm
which
based
County
violated the
requiring
order
conclusion
Judge Wilkinson’s
(open
Law
County
Utah
and Public
to ensure Utelite’s
removed
law),
§§
meetings
us
see Utah Code
52-4-
have not shown
how
I.A.3.,
(1994); part
which reverses
1 to -9
erroneous.
we re-
that order was
verse,
Padjen
conclusion
reading of
v.
Wilkinson’s
based on our
process rights;
plaintiffs’ due
violated
Shipley, Judge Noel’s determination that the
H.B.,
affirms
Noel’s denial
violation was
nuisance
plaintiffs.
fees
of section 1983
per se.
97,
Nunley,
2d
ty,
Inc. v.
ANALYSIS
(Utah
1964);
412-13
State Christoffer
Appeal
I.
(Utah
son,
Ct.App.
793 P.2d
946-47
wholly
affirm
I would
$9,199
1990);
States Curren
State
United
granting plaintiffs’
motion for
(Utah
cy,
Ct.App.1990);
791 P.2d
I
Specifically, would
judgment.
Agency v. Bowers-Ir
Power
Intermountain
hold,
did not include
because defendants
Co.,
&
ons Rec. Land
Cattle
hearing
transcript
summary judgment
of the
Birch,
(Utah Ct.App.1990);
P.2d at
record,
correctly
in the
Wilkinson
Whatcott,
1116;
also Whatcott v.
see
County violated
concluded that Summit
(“[T]he
Ct.App.1990)
n. 5
Code, requiring
Sum-
its own
judgment hearing was
included
the removal of Utelite’s
mit
to ensure
record_
part
appellate
*14
(2)
facility;
process rights;
due
‘Therefore,
judge acted
presume the trial
law,
meetings
see
open
and
the
(Citation omitted.));
correctly....’”
10A
(1994).
§§
As to the
52-i-l
-9
Code
&
Wright,
Alan
Arthur R. Miller
Charles
violation, then, I
reach
Kane,
Pro-
Mary Kay
Practice and
Federal
opinion,
as the main
but
the same conclusion
(3d
(stat-
ed.1998)
2722,
§
at
cedure
375-76
as
analysis,
on a
while
to the
based
different
ing “admissions on file” include admissions
issues,
meetings
I
open
law
due
and
during
argument
the oral
that “occurred
the
a
from
main
reach
different conclusion
motion”);
Moore,
11
the
W.
Moore’s
James
opinion.
(3d
§
ed.
56.14[2][d][i]
Federal Practice
documentary
Regardless
whether the
1997) (“Statements
open
court on
made
adequately supports
par-
the
evidence on file
may qualify
the
...
as admissions
record
summary judgment
plaintiffs,
tial
for
defen-
seeking summary judg-
purposes
file for
tape
record
have not included in the
dants
ment.”).
arguments
possible
and
transcript
or
of the
“
speculate on the
‘We cannot
existence
may
proffers,
include
admissions—which
appear
facts that do not
the record.
stipulations,
representations
in the
—made
in the
When crucial matters are
included
summary judgment hearings.1 “[A] record
record,
missing portions
presumed
are
proceedings
of all
of courts
should be made
”
the action of
trial court.’
precept applies to
record. That
confer-
Thei
Christofferson,
(quoting
duct as
of section 1983
violative
Plaintiff
applicable
any
quired; section 1988 is
v.
provides
a rem-
action which section 1983
SCHOULTZ, M.D., Defendant
Charles
Thiboutot,
(citing
edy.” Id.
at 374
Maine
Appellee.
1,
2502,
448 U.S.
100 S.Ct.
65 L.Ed.2d
(1980);
Gagne,
n.
448 U.S.
Maher
No. 971189-CA.
2574 n.
I therefore conclude that would original adequately states a claim complaint pursuant for relief to section 1983. id. Thus, plaintiffs pre- I because would hold vailed on their due claims on summary judgment, they I would also hold
should be awarded reasonable fees I Accordingly, here. See id. would reverse regarding the trial court’s order this issue.
CONCLUSION part I in the dissent in concur result *16 wholly I part as affirm would Wilkin- partial summary judgment Fur- son’s order. ther, agree opinion’s I with the main result
affirming his denial of defendants’ motion to nonjoinder of
dismiss this case for Union agree Pacific Railroad. I also main opinion reversing Judge Noel’s determina- tion Utelite is liable under nuisance per theory solely violating se a result of County Development Fi- Code.
nally, I opinion concur in the main as to all plaintiffs’ cross-appeal, issues raised ex- cept that I would reverse Noel’s order
denying plaintiffs fees under U.S.C. sections and 1988. Constitution, specify the one in the Federal Krishna Consciousness did not the consti found exercise cause of derived from the Federal Colorado Constitution has a free clause tutional Constitution, action implicate mirroring it the one found in the Federal Constitu- was sufficient Const, II, Still, Soc’y
tion. See Colorado art. Federal Constitution. See International Consciousness, Supreme implicitly Colorado Inc. Colorado State Court concluded Krishna that, Fair, (Colo. 1983) (cn banc). complaint although language in the