author: Toomey, Judge:

text:
    ROCKY MOUNTAIN POWER INC., Appellee and Cross-Appellant, v. Randy E. MARRIOTT, Edge Holdings LLC, Willard Land Holdings LLC, R&K Properties LC, Westside Investments LC, and Kami F. Marriott, Appellants and Cross-Appellees.
    No. 20160956-CA
    Court of Appeals of Utah.
    Filed November 29, 2018
    Robert E. Mansfield, Salt Lake City, Steven J. Joffee, Cottonwood Heights, Megan E. Garrett, and Gregory H. Gunn, Salt Lake City, Attorneys for Appellants and Cross-appellees.
    D. Matthew Moscon, Cameron L. Sabin, and R. Chad Pugh, Salt Lake City, Attorneys for Appellee and Cross-appellant.
    Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   Toomey, Judge:

¶1 This appeal stems from Rocky Mountain Power's (Rocky Mountain) condemnation to obtain easements across Randy E. Marriott's (Marriott) property. Marriott appeals, arguing that the district court erred in excluding evidence of damages resulting from the easements' interference with potential mining. Rocky Mountain cross-appeals, asserting that the district court erred in granting Marriott partial summary judgment on a provision in Rocky Mountain's amended condemnation complaint. We affirm the district court's grant of partial summary judgment to Marriott. But we reverse the district court's ruling that excluded evidence of damages resulting from lost potential mining and remand to that court for further proceedings consistent with this opinion.

BACKGROUND

¶2 Seeking to construct an electric transmission line (the New Line), Rocky Mountain filed a complaint for condemnation to obtain easements across approximately 453 acres of land (the Property) belonging to Marriott. Soon after, the parties stipulated to Rocky Mountain's occupancy of the easements, and Rocky Mountain began construction on the New Line. Marriott then requested that a jury determine the appropriate amount of "just compensation."

¶3 At the time of the condemnation, Marriott possessed two small mining permits, which authorized him to mine for sand and gravel aggregate on a ten-acre portion of the Property. Although the mining operation was relatively small, Marriott had applied for a large mining permit from the Division of Oil, Gas and Mining (DOGM). In the application (the Proposed Permit), Marriott provided plans to mine 145 acres of the Property in two phases. Phase one consisted of 35 acres, and phase two consisted of 110 acres. The Proposed Permit estimated that it would take "between 8 and 15 years" to complete phase one and did not include a time frame for phase two. DOGM had indicated to Marriott that the Proposed Permit would be approved.

¶4 To support his proposed "just compensation," Marriott provided evidence of the market value of the land supporting the New Line. That evidence included lost value because of the New Line's interference with potential mining on the Property. Marriott asserted that the New Line "greatly diminishes the ability to mine gravel products not only directly beneath the [New Line] ... but also the areas surrounding [it]." Although the land supporting the New Line was not included in the Proposed Permit, Marriott asserted that he planned to eventually exploit "all mineable areas of the [P]roperty." Accordingly, Marriott argued that the loss of potential mining should be included in his award of just compensation.

¶5 Rocky Mountain disagreed with Marriott's proposed damages. It asserted that damages should be based solely on uses to which the Property could have been put at the time of the condemnation. Rocky Mountain pointed to various preexisting encumbrances on the Property, which created legal barriers to Marriott's proposed mining development. Given those legal barriers, Rocky Mountain believed that Marriott's alleged mining plans were speculative, and therefore the lost value of that potential mining should not be considered in determining Marriott's award of just compensation.

¶6 For example, the Property was bisected by an irrigation canal (the Canal), which the federal government owned in fee. Although Marriott conceded he did not have the unilateral right to relocate the Canal, he asserted that he always planned to move the Canal and believed a relocation was possible. Thus, Marriott included losses of potential mining that would have required the Canal's relocation.

¶7 Rocky Mountain attempted to avoid these potential damages by amending its condemnation complaint. It added a provision (the Canal Provision), which provided that, if Marriott received written approval from the federal government to relocate the Canal, Marriott had the right to request that Rocky Mountain relocate portions of the New Line to allow mining operations on the Property. If that happened, Rocky Mountain would be obligated either to relocate the New Line at its own expense or pay Marriott "the fair market value of the Deposits that would otherwise be made accessible for mining by the relocation of the [New Line]."

¶8 In response to the amendment, Marriott filed a motion for partial summary judgment, asking the court to strike the Canal Provision. That motion first cited the Utah Code, stating that "damages shall be considered to have accrued at the date of the service of summons," see Utah Code Ann. § 78B-6-512(1) (LexisNexis 2012), and that the condemnor "shall, within 30 days after final judgment, pay the sum of the money assessed," see id. § 78B-6-514. Marriott then asserted that the Canal Provision was impermissible because it "propose[d] that some of the damages will only be calculated and paid in the future."

¶9 After reviewing the arguments, the district court granted Marriott's motion for partial summary judgment. It found that there were no disputes of material fact, and that the Canal Provision was "not permissible under Utah Law for the reasons stated in" Marriott's motion. The court therefore struck the Canal Provision from the condemnation complaint.

¶10 Apart from the Canal, two more preexisting encumbrances created legal barriers to potential mining on the Property. These encumbrances included a fifty-foot-wide easement owned by Rocky Mountain that contained an electric transmission line, and a thirty-foot-wide easement owned by Questar Gas that contained a natural gas pipeline (collectively, the Utility Lines). Marriott did not have the unilateral right to relocate the Utility Lines. The relocation process involved formal procedures, including the proposal of alternate routes and the payment of assessment fees. Further, whether to grant relocation requests was within the discretion of Rocky Mountain and Questar, and their decisions were not subject to review or appeal. But Marriott nonetheless claimed he intended to relocate the Utility Lines to facilitate his mining plans. And he claimed damages for the lost value of potential mining that depended on their relocation.

¶11 Rocky Mountain opposed Marriott's proposed damages by filing two motions to exclude evidence (the Motions to Exclude). In the first motion, Rocky Mountain asked the court to exclude evidence of losses that depended on Marriott's ability to relocate the Utility Lines. That motion asserted that Marriott's "position that the Utility Lines ... could be relocated is not a 'reasonable certainty.' It is fantasy." Rocky Mountain noted that Marriott has "no unilateral right to relocate the Utility Lines and never obtained consent from [Rocky Mountain] or Questar to relocate those lines." Further, Marriott had "never asked [Rocky Mountain] or Questar to move the Utility Lines or the Easements" and "it is impossible to know how that request would have been received." Before approving such a request, Rocky Mountain and Questar "would need to consider many factors, including ... the proposed new locations and replacement routes of the easements, whether other third parties would have to approve the relocations and whether such approvals had been obtained, ... the cost of relocating the lines and the future maintenance costs," etc. The first motion also noted that Rocky Mountain and Questar had complete discretion to grant or deny relocation requests. In sum, Rocky Mountain argued that the "hypothetical relocation of the [Utility Lines] ... cannot be a factor in determining the amount of reasonable compensation to which [Marriott is] entitled."

¶12 In the second motion, Rocky Mountain asked the court to exclude evidence of losses that depended on Marriott's ability to obtain authorization to mine areas where mining was not permitted at the time of the condemnation. To support that request, Rocky Mountain noted "it was impossible to know" whether DOGM would approve the Proposed Permit. Further, even if the Proposed Permit were approved, Marriott sought compensation for lost mining in areas the Proposed Permit would not cover. Rocky Mountain stated, "[Marriott's] claim that [he] would have received DOGM's approval to revise a non-existent mine permit is too speculative." Thus, it asked the district court to exclude evidence of damages from potential lost mining in areas that would be authorized only if the Proposed Permit was approved. In the alternative, it asked the court to exclude evidence of damages from lost mining in areas that were not covered by the Proposed Permit.

¶13 When Rocky Mountain filed the Motions to Exclude, the parties had not concluded fact discovery, and expert discovery had not begun. Fact discovery was scheduled to end the following month, initial expert disclosures were due approximately four months later, expert rebuttal reports were due approximately five months later, and the deadline for expert depositions was approximately six months later.

¶14 Marriott opposed the Motions to Exclude. In his memorandum in opposition, he noted that "just compensation" is not measured by the actual use of the property at the time of the condemnation, but rather by the property's highest and best use. Further, he argued that the district court could not yet properly determine whether it was feasible to remove the legal barriers that prevented mining on the Property. Such a determination "would require the [c]ourt to consider evidence and expert testimony relating to several factors," which Marriott intended to obtain and "submit ... at the appropriate time." Essentially, Marriott asserted that granting the Motions to Exclude at that time would deny him "a full and fair opportunity to obtain or offer evidence" that supports or relates to his position.

¶15 The district court granted the Motions to Exclude. It first stated, "[C]ourts have an obligation to act as a gatekeeper to screen irrelevant evidence from the jury" and that "motions in limine may be used early in the litigation process to narrow the issues and reasonably limit discovery." (Quotation simplified.) Accordingly, the court determined it was "well within its authority to address the substantive issues of the [Motions to Exclude]."

¶16 The court then addressed the substantive arguments. It first determined that mining in areas covered by the Proposed Permit was legally feasible because the Proposed Permit had been submitted and there was reason to believe it would actually be approved. But the court also determined that Marriott's plans to mine in areas that would require him to relocate the Utility Lines or obtain a mining permit for areas not covered by the Proposed Permit were conjectural or speculative potential uses that were not legally feasible. The court therefore ordered that "any evidence of alleged losses or valuation theories premised upon" those two development plans "are excluded from and shall not be introduced in this matter."

¶17 Following the district court's ruling, the parties entered a settlement agreement, reserving the right to appeal the district court's previous rulings. After that, the district court entered a final judgment of condemnation. Marriott now appeals and Rocky Mountain cross-appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Marriott argues that the district court erred in granting the Motions to Exclude on two grounds. First, he asserts that the court "adopted and applied an incorrect legal feasibility analysis" by ruling that "condemnees must request and receive permission from the entity with authority to approve or deny a proposed use for [that] use to be considered legally feasible." Second, he argues that the court erred in granting the Motions to Exclude before he had a "full and fair opportunity to complete fact and expert discovery." "We review the legal questions underlying the admissibility of evidence for correctness and the district court's decision to admit or exclude evidence for an abuse of discretion." Blackhawk Townhouses Owners Ass'n Inc. v. J.S. , 2018 UT App 56, ¶ 17, 420 P.3d 128.

¶19 Rocky Mountain cross-appeals. It contends that the district court erred in granting Marriott partial summary judgment on the Canal Provision. "We review a district court's decision to grant summary judgment for correctness, with no deference to the district court's conclusions." School & Institutional Trust Land Admin. v. Mathis , 2009 UT 85, ¶ 10, 223 P.3d 1119.

ANALYSIS

I. Legal Feasibility of Potential Mining

¶20 Marriott argues that the district court erred in granting the Motions to Exclude. We agree. To show that a proposed "highest and best use" of condemned land is legally feasible, a landowner "must offer the testimony of a properly qualified expert." City of Hildale v. Cooke , 2001 UT 56, ¶ 25, 28 P.3d 697 (quotation simplified). Although "admission of such evidence is within the sound discretion of the [district] court," State ex rel. Road Comm'n v. Jacobs , 16 Utah 2d 167, 397 P.2d 463, 464 (1964), the court abuses its discretion when it denies the landowner a fair opportunity to develop the essential elements of his claim. Because Rocky Mountain filed the Motions to Exclude before the close of fact discovery and before expert discovery began, the court erred in ruling on the legal feasibility of Marriott's proposed "highest and best use" at that time.

¶21 Municipalities in Utah have authority to condemn property for public use. See Utah Const. art. XI, § 5. And for certain uses, "the legislature has delegated its power of eminent domain to public utilities." Williams v. Hyrum Gibbons & Sons Co. , 602 P.2d 684, 686 (Utah 1979). For example, a public utility may, under the proper circumstances, condemn private property for the construction of "electric power lines." Utah Code Ann. § 78B-6-501(8) (LexisNexis 2012). But the authority to condemn private property for public use is constrained by Article I, Section 22 of the Utah Constitution. See City of Hildale , 2001 UT 56, ¶ 18, 28 P.3d 697. Article I, section 22 states, "Private property shall not be taken or damaged for public use without just compensation." Utah Const. art. I, § 22.

¶22 In condemnation proceedings, the "just compensation" requirement is satisfied by putting the landowner "in as good a position money wise as [he] would have occupied had [his] property not been taken." City of Hildale , 2001 UT 56, ¶ 19, 28 P.3d 697 (quotation simplified). That is, the "compensation must reflect the fair value of the land to the landowner." Utah Dep't of Transp. v. Admiral Beverage Corp. , 2011 UT 62, ¶ 28, 275 P.3d 208 (quotation simplified). Generally, the landowner is entitled to damages equal to the "fair market value" of the condemned land. State ex rel. Road Comm'n v. Noble , 6 Utah 2d 40, 305 P.2d 495, 497 (1957) (quotation simplified). And "[w]hen the land that is condemned constitutes only a portion of a larger parcel, a landowner may [also] be entitled to ... 'severance damages' for any diminution in the value of the remaining portion of the landowner's property, as long as the landowner can demonstrate that the diminution in value was caused by the taking." Utah Dep't of Transp. v. Target Corp. , 2018 UT App 24, ¶ 15, 414 P.3d 1080, cert. granted , 425 P.3d 800 (Utah 2018). Severance damages are "determined by comparing the market value of the portion of property not taken with its market value before the taking." Admiral Beverage Corp. , 2011 UT 62, ¶ 30, 275 P.3d 208.

¶23 To calculate "fair market value," the jury is asked to determine what a willing buyer would have paid to a willing seller, see Salt Lake City Corp. v. Utah Wool Pulling Co. , 566 P.2d 1240, 1242 (Utah 1977), on "the date of the service of summons," see Utah Code Ann. § 78B-6-512(1) (LexisNexis 2012) ("[T]he right to compensation and damages shall be considered to have accrued at the date of the service of summons."). But fair market value is not determined "by taking a temporal snapshot of the land's value according to its use at" the date of the condemnation. City of Hildale , 2001 UT 56, ¶ 22, 28 P.3d 697. Instead, the calculation is "based upon the highest and best use" to which the land could have been put at that time. See Jacobs , 397 P.2d at 464. To that end, the jury must consider "all factors ... that a prudent and willing buyer and seller, with knowledge of the facts, would take into account, including any potential development that could be performed on the property." City of Hildale , 2001 UT 56, ¶ 22, 28 P.3d 697 (quotation simplified).

¶24 Not every proposed "highest and best use" alleged by a landowner should be considered by the jury. See Jacobs , 397 P.2d at 464 (determining that whether to admit evidence of a "projected use, affecting value," is "within the sound discretion of the [district] court"). Only potential uses that are likely to have an "appreciable influence upon the market value of the property" are relevant. Id. at 465 (quotation simplified). Because a prudent buyer or seller would not consider "totally conjectural or speculative potential uses," City of Hildale , 2001 UT 56, ¶ 23, 28 P.3d 697, the district court should exclude evidence of such uses, see Jacobs , 397 P.2d at 465.

¶25 The jury's determination should "reflect only potential development that could with reasonable certainty be expected with respect to the property." City of Hildale , 2001 UT 56, ¶ 23, 28 P.3d 697 (quotation simplified). It is insufficient to show that a potential use is merely possible because "the land is adaptable to a particular use in the remote and uncertain future." Id. (quotation simplified). Instead, a landowner must show that the proposed use is actually "feasible." Id . And to prove a proposed use is feasible, a landowner must establish "three specific elements." Id. ¶ 24. Those elements are physical feasibility, legal feasibility, and economic feasibility. See id.

¶26 Here, Marriott's proposed "highest and best use" of the relevant land was mining sand and gravel aggregate. The district court found that Marriott established both the physical and economic feasibility of that use. But it determined that the potential mining was not legally feasible because of various legal barriers. Thus, we limit our discussion to legal feasibility.

¶27 To establish legal feasibility, the landowner must prove that "the land is legally available for the potential use, or that any legal restrictions currently preventing the potential use have a reasonable probability of being modified so that they no longer pose a barrier." Id. When a legal barrier prevents a proposed use, the jury should consider the value of that use only if the prospect of removing the barrier "is sufficiently likely as to have an appreciable influence upon ... the market value of the property at the time of the [condemnation]." See Jacobs , 397 P.2d at 465 (determining that the probability of a zoning restriction being repealed or amended so as to permit the use in question may be considered if "such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value " (quotation simplified) ). Simply put, the jury should consider only potential uses that would be relevant to prudent sellers and purchasers on the open market. See City of Hildale , 2001 UT 56, ¶ 22, 28 P.3d 697 ("[C]onsideration must be given to all factors bearing upon such value that a prudent and willing buyer and seller, with knowledge of the facts, would take into account, including any potential development that could be performed on the property." (quotation simplified) ). And when removing a legal barrier to a proposed use is reasonably probable, such a potential use may enter that equation. See id. ¶¶ 23-24.

¶28 Landowners may attempt to show that removing a legal barrier is reasonably probable by detailing the steps they have taken to remove it. See id. ¶ 25. But the landowner's testimony alone is legally insufficient. See id. ¶¶ 25, 28 (determining that, without expert testimony regarding condemned land's highest and best use, the landowners' testimony that "they were in the process of obtaining the legal permissions needed to proceed" with their proposed development was "conjectural and speculative"). Ultimately, "the landowner must [first] offer the testimony of a properly qualified expert." Id. ¶ 25 ; see also Utah Dep't of Transp. v. Jones , 694 P.2d 1031, 1036 (Utah 1984) (determining that "highest and best use" is a term of art and "[t]estimony regarding it must come from properly qualified experts").

A. Relocation of the Utility Lines

¶29 Marriott argues that the district court erred in ruling, before the close of fact and expert discovery, that he could not establish the legal feasibility of potential mining that depended on his ability to relocate the Utility Lines. We agree.

¶30 It is undisputed that, at the time of the condemnation, Marriott did not have the legal right to relocate the Utility Lines. But Marriott was not required to show that obtaining relocation was certain, only that it was reasonably probable. See City of Hildale v. Cooke , 2001 UT 56, ¶ 24, 28 P.3d 697. The record established that, under certain circumstances, Rocky Mountain and Questar agreed to relocate their utility lines. Both companies allowed servient landowners to submit relocation requests and decided to grant or deny those requests according to established procedures. To show the legal feasibility of his proposed potential mining, Marriott was required to show that, given those procedures and all other relevant factors, the prospect of relocating the Utility Lines to develop the mining operation was reasonably probable at the time of the condemnation. See id.

¶31 In its ruling, the district court noted that Marriott never initiated the relocation process. To the extent the court determined this was dispositive, that ruling was erroneous. In fact, any steps Marriott had taken to relocate the Utility Lines were necessarily insufficient. See id. ¶ 25 ("[A] landowner may testify concerning the individual elements of feasibility, but that landowner must offer the testimony of a properly qualified expert to prove the actual feasibility of a potential use."). Marriott was required to first present testimony from a qualified expert that the potential mining was the relevant land's "highest and best use." See id. (quotation simplified). And an expert could testify that the potential mining was the "highest and best use" only by testifying to the legal feasibility of that use. See id. That is, that relocating the Utility Lines was reasonably probable. See id. When Rocky Mountain filed the Motions to Exclude, the time for expert disclosure and discovery had not yet started. Thus, Marriott was denied a fair opportunity to obtain and present evidence that was essential to his claim.

¶32 Marriott asserts on appeal, as he did below, that he intended to retain expert witnesses who would testify to the likelihood, under the circumstances, that Rocky Mountain and Questar would have granted his relocation requests. To that end, he requested production of documents that referenced instances in which Rocky Mountain approved or rejected a third party's request to relocate power lines, but Rocky Mountain refused to produce those documents based on the pendency of the Motions to Exclude. This evidence was essential to establishing that mining was the land's "highest and best use." We therefore conclude Marriott did not have a fair opportunity to develop his claim that relocating the Utility Lines was reasonably probable.

¶33 Rocky Mountain argues that expert testimony would not have been helpful. It notes, "[B]ecause [Questar and Rocky Mountain] were never asked to assess a potential relocation, they did not know whether a relocation ... would even have been possible, let alone approved." Further, it notes that "merely because a utility has granted or denied a relocation in one instance ... does not mean that the same utility will agree to relocate another line" under different circumstances.

¶34 Rocky Mountain's arguments are mistaken because they assume an incorrect legal standard. The uncertainty regarding the relocation of the Utility Lines created a legal feasibility issue, but it should not have determined the outcome. When a legal barrier prevents a proposed "highest and best use," the ability to remove that barrier will always be uncertain to some degree. But a landowner need not show that a legal barrier will certainly be removed, he must show only that its removal is reasonably probable. See City of Hildale , 2001 UT 56, ¶ 24, 28 P.3d 697. The jury should consider potential uses that would be relevant to prudent sellers and purchasers on the open market. See id. ¶ 22. And when the ability to engage in a proposed use is feasible because removing a legal barrier is reasonably probable, such a potential use enters that equation.

¶35 Here, a properly qualified expert might have testified to the probability , given the circumstances, that requests to relocate the Utility Lines would have been granted. Marriott was entitled to present such evidence to the district court. Because he was denied that opportunity, we conclude the district court erred in ruling, before the close of fact and expert discovery, that Marriott could not establish the legal feasibility of mining that depended on relocating the Utility Lines.

B. Mining in Unpermitted Areas

¶36 Marriott argues the district court erred in ruling, before the close of fact and expert discovery, that he could not establish the legal feasibility of mining in areas that were not permitted under the Proposed Permit. We agree.

¶37 In its ruling, the district court first found that Marriott had established the legal feasibility of mining areas covered by the Proposed Permit because the Proposed Permit had been submitted and there was reason to believe it would actually be approved. But as to areas outside the Proposed Permit, the court stated that "it appears uncertain as to when or if any application, revision[,] or amendment" to allow mining outside the Proposed Permit would be made. The court continued, "[I]t is uncertain how DOGM would respond to such a request or whether it would approve additional areas on [the Property] for mining." Based on these observations, the court concluded, "[P]lans to mine currently unpermitted areas [are] conjectural or speculative potential uses that are not legally feasible."

¶38 The court's analysis was misguided. As with relocating the Utility Lines, the uncertainty of obtaining authorization to mine outside the Proposed Permit created a legal feasibility issue, but that uncertainty should not have determined the outcome. To show that mining in unpermitted areas was legally feasible, Marriott did not need to have the legal right to mine those areas, nor was he required to start the process of obtaining that right. Instead, he was required to show that the likelihood of obtaining approval to mine those areas was reasonably probable so as to have an appreciable influence upon market value. See State ex rel. Road Comm'n v. Jacobs , 16 Utah 2d 167, 397 P.2d 463, 465 (1964).

¶39 As explained above, see supra ¶28, expert testimony was essential to show that mining of gravel and sand aggregate was the relevant land's highest and best use, City of Hildale v. Cooke , 2001 UT 56, ¶ 25, 28 P.3d 697. And to show that mining was the highest and best use, an expert was required to testify that mining was legally feasible, i.e., that obtaining the proper permits was reasonably probable. See id. ¶¶ 24-25. And if obtaining those permits was reasonably probable, the proposed mining development was likely relevant to the market value of the Property. See Cornish Town v. Koller , 817 P.2d 305, 313-14 (Utah 1991) (determining that, although uncertain and speculative, the potential to exploit "in-place minerals" has a market value and is thus admissible to determine just compensation).

¶40 A properly qualified expert might have testified to the probability , given the circumstances, that a request to mine the unpermitted areas would have been granted. Marriott asserts on appeal, as he did below, that he intended to retain expert witnesses to establish the legal feasibility of receiving permission to engage in the proposed mining. But because Rocky Mountain filed the Motions to Exclude before fact discovery concluded and before expert discovery began, Marriott was denied the opportunity to present this essential evidence.

¶41 We therefore conclude that the district court erred in ruling, before the close of fact and expert discovery, that Marriott did not establish the legal feasibility of mining areas that were not included in the Proposed Permit.

II. The Canal Provision

¶42 Rocky Mountain cross-appeals, arguing that the district court erred when it granted partial summary judgment to Marriott on the Canal Provision. We disagree. Because the Canal Provision was contrary to Utah condemnation law, we affirm the district court's decision to grant Marriott partial summary judgment and strike the Canal Provision from the amended condemnation complaint.

¶43 In condemnation cases, "the right to compensation and damages shall be considered to have accrued at the date of the service of summons." Utah Code Ann. § 78B-6-512(1) (LexisNexis 2012). And the condemning party "shall, within 30 days after final judgment, pay the sum of money assessed." Id. § 78B-6-514.

¶44 The Canal Provision was at odds with the requirement that condemning parties pay compensation and damages within 30 days after final judgment because it gave Rocky Mountain the option to pay part of Marriott's potential "just compensation" at some time in the future. It provided that, if Marriott received written approval from the federal government to relocate the Canal, Marriott could request that Rocky Mountain relocate the New Line to allow mining operations on the supporting land. If that happened, Rocky Mountain would have been obligated to either relocate the New Line at its own expense or pay Marriott "the fair market value of the Deposits that would otherwise be made accessible for mining by the relocation of the [New Line]."

¶45 Rocky Mountain disagrees with this interpretation. It argues that, under the Canal Provision, "relocation would be at the option of [Marriott], not [Rocky Mountain]." But the Canal Provision clearly provided otherwise. It stated, "[Rocky Mountain] shall have the option of paying [Marriott] the fair market value of the Deposits that would otherwise be made accessible for mining by the relocation of the [New Line]. This option shall be in lieu of relocating the [New Line]." (Emphasis added.) The Canal Provision's language clearly gave Rocky Mountain the option to pay part of Marriott's potential "just compensation" at a future, indefinite time.

¶46 Further, even if the Canal Provision required Rocky Mountain to relocate the New Line according to Marriott's future needs, the Utah Supreme Court has disapproved of such "floating" easements. See Jacobson v. Memmott , 11 Utah 2d 16, 354 P.2d 569, 571 (1960). That is because, in condemnation proceedings, we attempt to compensate the landowner for all property rights condemned. Id. And a relocation provision leaves the landowner "with the uncertainty of not knowing, nor being able to prove, the extent to which the [easement] will damage his property, because of the difficulties in presaging what might later occur." Id. It is therefore "more practical and in conformity with established patterns of law" to require condemning parties "to make a definite designation of it so that the damages to the [landowner] may be ascertained." Id.

¶47 We therefore conclude that the Canal Provision was contrary to Utah law and affirm the district court's grant of partial summary judgment to Marriott on that provision.

CONCLUSION

¶48 We affirm the district court's grant of partial summary judgment to Marriott on the Canal Provision, but we reverse its ruling on the Motions to Exclude and remand to the district court for further proceedings consistent with this opinion.

      The appellants include Randy E. Marriott, Kami F. Marriott, Edge Holdings LLC, Willard Land Holdings LLC, Westside Investments LC, and R&K Properties LC. For the reader's convenience, we refer to them collectively as "Marriott."

      We note that although our rules establish no firm deadline for filing motions in limine, such motions are typically filed after discovery has concluded and before trial. Had these issues been presented in the context of a motion for partial summary judgment, Marriott easily could have filed an affidavit under Utah Rule of Civil Procedure 56(d) asking the court to delay its decision until further discovery had been conducted, and, in this case, expert disclosures and discovery undertaken. We do not think district courts should easily allow parties to avoid the strictures of summary judgment procedures by presenting dispositive issues in motions in limine. Here, the Motions to Exclude were employed in lieu of a motion for summary judgment without the safeguards offered by that rule to ensure that the case was decided on its merits.


source: Caselaw Access Project

author: HARRIS, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Victoria ASTA, Appellant.
    No. 20160942-CA
    Court of Appeals of Utah.
    Filed November 29, 2018
    Ashley E. Bown, Attorney for Appellant.
    Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.
    Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Michele M. Christiansen Forster concurred.
    Opinion
   HARRIS, Judge:

¶1 After Victoria Asta pled no contest to charges of burglary and assault against a police officer, the district court sentenced her to prison. Asta now appeals that sentence, asserting that the sentencing judge should have recused himself, and that the court abused its discretion in imposing the sentence. Asta also complains that the court failed to specifically address several of her objections to items contained within the presentence report (PSR). We affirm Asta's sentence, as well as the judge's decision not to recuse himself, but remand for the limited purpose of addressing Asta's objections to items contained within the PSR.

BACKGROUND

¶2 On a November evening in Cache County, Utah, Asta and her boyfriend (Boyfriend) were out for a drive, with Asta behind the wheel. Boyfriend was wearing a "green tactical shirt" and a shoulder holster and had two handguns with him. At some point, Boyfriend exited the vehicle on foot, donned a ski mask, and broke into a house occupied by an elderly couple. When the husband confronted Boyfriend, Boyfriend pointed his gun at him and ordered him into the basement where his wife was watching television. As the owners were calling 911, Boyfriend helped himself to jewelry and other items from the house, and then fled the scene.

¶3 After completing the burglary, Boyfriend got back in the car that Asta was driving. As they drove away from the scene, they passed a sheriff's deputy who was responding to the owners' 911 call. The deputy activated his overhead lights and attempted to stop Asta's vehicle, but Boyfriend told her to "just keep driving, don't stop," and Asta kept driving. As Asta drove past the deputy, she and Boyfriend tried to hide their faces. The deputy turned to pursue them, and a lengthy and dangerous car chase ensued, one that eventually involved speeds of up to 90 mph in and out of traffic on public roads, as well as detours across open fields.

¶4 The deputy called for assistance, and another officer (Officer) eventually initiated a Pursuit Intervention Technique (PIT) maneuver designed to force the fleeing car to turn sideways and stop. The maneuver worked, and caused Asta's vehicle to spin and come to a stop facing the direction it had been traveling. Officer then pulled his vehicle in front of Asta's in an attempt to box it in, but Asta again refused to stop, this time driving her vehicle forward and causing it to collide with Officer's, then scraping past Officer's vehicle and eventually escaping. Officer later described the encounter as one in which Asta "rammed" his vehicle.

¶5 A second high-speed car chase then ensued. Officers attempted another PIT maneuver, this time unsuccessfully. Eventually another officer used his patrol vehicle to push Asta's vehicle off of the roadway, where Asta's vehicle finally came to a stop only because it struck a tree.

¶6 Officers then arrested Asta and Boyfriend. Inside the vehicle, officers found two handguns and a ski mask, among other items. Initially, neither Asta nor Boyfriend would give officers their physical address, and officers at first concluded that they were homeless. But officers eventually discovered where they lived and searched their residence, finding stolen jewelry and drug paraphernalia.

¶7 In relation to her activities on the night in question, the State charged Asta with aggravated robbery and aggravated burglary, both first-degree felonies; assault against a police officer, a second-degree felony; and four additional counts. The State also charged Asta with seventeen other burglary- and theft-related crimes alleged to have occurred before the November incident. These other charges were later dismissed pursuant to an agreement Asta made with the State to "meet with investigators and provide truthful information related to the State's prosecution of [Boyfriend]." Eventually, with regard to the charges stemming from her activities on the night in question, Asta agreed to plead "no contest" to two second-degree felonies: burglary, amended to a second-degree felony, and assault against a police officer. In exchange, the State agreed to drop all remaining charges.

¶8 After Asta entered her plea, Adult Probation and Parole (AP&P) prepared the PSR, and therein recommended that Asta be sentenced to prison. AP&P acknowledged that the applicable sentencing guideline matrix pointed to probation, rather than prison, as the presumptive sentence for someone in Asta's position. However, AP&P nevertheless recommended prison due to certain "aggravating factors," including Asta's perceived "criminal mentality," "lack of remorse," and "refus[al] to cooperate with law enforcement," as well as the fact that the underlying crime included "ramm[ing] an occupied police car."

¶9 The PSR included a statement from Asta, in which she maintained that she did not know that Boyfriend intended to commit burglary when he exited the vehicle on the evening in question. Indeed, Asta stated that she and Boyfriend were "just driving around and exploring random dirt roads and just enjoying a little quiet time together," and that Boyfriend got out of the car because he said he "had to go to the bathroom." While he was doing so, Asta stated that she "told him [she] was going to drive ahead for a bit and see if [she] could find a gas station" where she could purchase snacks. She claimed Boyfriend was "acting strangely" after she picked him back up, and that she fled from police at Boyfriend's urging.

¶10 The day before the sentencing hearing, Asta filed a lengthy written objection to the PSR, arguing that AP&P's recommendation was unwise and "entirely subjective." Asta specifically took issue with AP&P's conclusion that she had failed to show remorse or to take responsibility for her crimes, pointing to her lengthy statement, included in the PSR, in which she apologized and expressed regret.

¶11 At the sentencing hearing, Asta's counsel addressed, at some length, Asta's objections to the report, and made impassioned argument that Asta should be sentenced to probation rather than prison. In addition to argument from counsel, Asta herself provided a statement to the court, as did Asta's mother. On the other side of the ledger, the court also heard from one of the victims of the burglary, and from Officer, who described for the court in person how Asta "rammed" his vehicle while he was inside it. The court also thoroughly questioned an AP&P supervisor about AP&P's recommendation for a prison sentence. The State also argued, among other things, that Asta's claims about what happened that night were false, and that she had to have known what Boyfriend intended to do. In the course of making this argument, the prosecutor mentioned that she did not "believe [the police] found any snacks in the car that she claimed she was going after."

¶12 At the conclusion of the sentencing hearing, the court sentenced Asta to prison on each count, with the sentences to run concurrently. In imposing the sentence, the court stated that it considered Asta's crimes "heinous," and stated its belief that, at least "as it relates to [her] relationship with Boyfriend and the events" in question, Asta had been acting in a "morally bankrupt" manner. The court also stated that it did not credit Asta's explanation that she did not know that Boyfriend was going to commit burglary when he exited the car that night, and stated that it was especially concerned with the danger she had imposed on the members of the community by leading officers on two high-speed car chases. The court also expressed its concern that the crime included the "intentional act of ramming [Officer's] vehicle as described here today."

¶13 Shortly after sentencing, Asta's counsel learned that the sentencing judge had himself been the victim of a home burglary in 2014, the year before the events in question. Asta filed a motion to disqualify, arguing that the burglary biased the judge and that the judge should have recused himself. The motion was referred to the presiding judge, who denied it.

ISSUES AND STANDARDS OF REVIEW

¶14 Asta appeals, and raises three issues for our review. First, Asta asserts that the sentencing judge was obligated to recuse himself because he had been the victim of a home burglary in the year before Asta's crimes, and that the reviewing judge erroneously denied her motion to disqualify the sentencing judge. "Determining whether a trial judge committed error by failing to recuse himself or herself under the Utah Code of Judicial Conduct is a question of law," which we ordinarily review for correctness. State v. Van Huizen , 2017 UT App 30, ¶ 11, 392 P.3d 933 (quotation simplified), cert. granted , 400 P.3d 1044 (Utah 2017). However, if the trial judge "complie[s] exactly with rule 29" of the Utah Rules of Criminal Procedure in handling the motion for disqualification, then the "burden shift[s] to the petitioners" to make an additional showing of either "actual bias or abuse of discretion." State v. Alonzo , 973 P.2d 975, 979 (Utah 1998) (quotation simplified). Additionally, at least in cases in which rule 29 was invoked and followed, see Van Huizen , 2017 UT App 30, ¶¶ 55-63, 392 P.3d 933, "any error of the trial judge in failing to recuse" must be disregarded absent a showing of "actual prejudice," see State v. Gardner , 789 P.2d 273, 278 (Utah 1989) ; see also Utah R. Crim. P. 30(b) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded").

¶15 Second, Asta asserts that the sentencing judge did not finally and thoroughly deal with all of her objections to the PSR. "Whether the trial court properly complied with a legal duty to resolve on the record the accuracy of contested information in sentencing reports is a question of law that we review for correctness." State v. Samulski , 2016 UT App 226, ¶ 9, 387 P.3d 595 (quotation simplified).

¶16 Third, Asta asserts that the sentencing judge abused its discretion by considering irrelevant or unreliable information and by sentencing her to prison rather than probation. "Because trial courts are afforded wide latitude in sentencing, a court's sentencing decision is reviewed for an abuse of discretion. A court exceeds its discretion if it acts with inherent unfairness in imposing a sentence, imposes a clearly excessive sentence, or fails to consider all legally relevant factors." State v. Neilson , 2017 UT App 7, ¶ 15, 391 P.3d 398 (quotation simplified).

ANALYSIS

I

¶17 First, Asta argues that the sentencing judge was obligated to recuse himself because he had been the victim of a residential burglary in 2014, the year prior to the events at issue here. The sentencing judge declined to grant the motion, and instead referred it to the presiding judge, who eventually denied it. We affirm that decision.

¶18 "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned." Utah Code Jud. Conduct R. 2.11. "[W]hen a judge knows of circumstances that give rise to the reasonable appearance of bias, the judge is under an affirmative duty either to recuse or to disclose the facts that contribute to an appearance of partiality and allow the parties to decide whether to waive disqualification." Van Huizen , 2017 UT App 30, ¶ 18, 392 P.3d 933. However, while parties are entitled to an impartial judge, "they are not entitled to a judge whose mind is a clean slate." Lunt v. Lance , 2008 UT App 192, ¶ 12, 186 P.3d 978. "The question of a judge's impartiality is determined by viewing the question through the eyes of a reasonable person, knowing all the circumstances." Fullmer v. Fullmer , 2015 UT App 60, ¶ 12, 347 P.3d 14 (quotation simplified).

¶19 But even in cases where a judge fails to strictly follow the Code of Judicial Conduct-and we stop well short of determining that any such failure existed in this case-a reversal is not the automatic result. Indeed, our supreme court has ruled that a judge's failure to strictly follow the Code of Judicial Conduct "does not necessarily mean that the defendant is entitled to a new trial," because "[t]he parameters of defendants' constitutional rights to a fair trial are defined by [ rule 29 of the Utah Rules of Criminal Procedure ] and relevant case law, not the Code of Judicial Conduct." See State v. Neeley , 748 P.2d 1091, 1094 (Utah 1988). Rule 29 of the Utah Rules of Criminal Procedure sets forth the process that a judge in a criminal case must follow when a litigant seeks the judge's disqualification. A judge who is the target of a motion to disqualify has two options: the judge may grant the motion without further hearing, or the judge may certify the motion to a different judge for decision. See Utah R. Crim. P. 29(b)(2)(A) (stating that "[t]he judge against whom the motion and affidavit are directed shall, without further hearing, enter an order granting the motion or certifying the motion and affidavit to a reviewing judge"). The target judge may not hold a hearing on the motion, and may not herself deny the motion. Id. Other than either granting the motion or certifying the motion to another judge, the target judge "shall take no further action in the case until the motion is decided." Id.

¶20 If these procedures are followed, then a judge's decision not to recuse "does not constitute reversible error" "absent a showing of actual bias or an abuse of discretion." State v. Alonzo , 932 P.2d 606, 610-11 (Utah Ct. App. 1997) (quotation simplified), aff'd , 973 P.2d 975 (Utah 1998). In this case, Asta makes no argument that either the sentencing or reviewing judge in this case failed to follow the procedures set forth in rule 29. Because those procedures were followed here, Asta bears the heightened burden of demonstrating either actual bias or abuse of discretion. See Alonzo , 973 P.2d at 979. Asta makes no effort to demonstrate that the sentencing judge was actually biased, but does argue that the reviewing judge abused his discretion in denying the motion.

¶21 Asta's assertion in this regard is that the reviewing judge failed to perceive the significance of the fact that the sentencing judge had experienced a home burglary, and contends that this experience must necessarily have "created a presumptive question" regarding the judge's impartiality. We, however, agree with the reviewing judge, who determined that Asta "[made] no effort to bridge the logical gap between a superficially similar crime committed against [the sentencing judge] in the past and his impartiality in this case." Asta offers no specifics regarding the burglary suffered by the sentencing judge and, without more, we are unwilling to hold that a reviewing judge abuses his discretion by failing to disqualify a judge who has previously been the victim of a burglary from any burglary case. In certain situations (for instance, if the judge had been a victim of a crime committed by the same person who later stood accused of a similar crime in the judge's court), we might expect a reviewing judge to grant such a motion. But it cannot be that, in all cases involving all crimes, a judge must disqualify herself if she has previously been the victim of any similar crime. The rule Asta advances is far too broad, and we decline to adopt it. We discern no abuse of discretion in the reviewing judge's decision.

¶22 Next, Asta asserts that she sustained actual prejudice as a result of the sentencing judge's participation in the case, and asks for reversal on that basis. See Alonzo , 973 P.2d at 979 (stating that "a trial judge's failure to recuse based on the appearance of bias may be grounds for reversal if actual prejudice is shown" (quotation simplified) ). We find Asta's argument unpersuasive.

¶23 First, Asta asserts that the sentencing judge's failure to disclose the fact that he was the recent victim of a home burglary "deprived Asta of the chance to utilize [r]ule 29A of the Utah Rules of Criminal Procedure." That rule, however, only allows for a change of judge as a matter of right if all parties to a case agree. See Utah R. Crim. P. 29A(a) (stating that, in a criminal case, "all parties joined in the action may, by unanimous agreement ..., change the judge assigned to the action"). Asta offers no indication that the State would ever have agreed to a change of judge, even if Asta had learned of the judge's situation earlier. Accordingly, Asta would not have been able to avail herself of rule 29A in any event.

¶24 Second, Asta asserts that the judge's failure to disclose "deprived Asta of the opportunity to appropriately prepare for her sentencing hearing and present information to the court concerning an appropriate sentence." But the sentencing hearing in this case was quite thorough, and Asta gives no indication of the sort of information she might have presented to the court had she learned earlier of the judge's situation.

¶25 For all of these reasons, Asta has failed to persuade us that reversal is appropriate on the disqualification issue. Accordingly, we find no reversible error in the sentencing judge's decision not to recuse himself, and we affirm the reviewing judge's denial of the motion to disqualify.

II

¶26 Next, Asta challenges both the merits of her sentence, as well as the manner in which the district court addressed the objections she raised at sentencing to specific items in the PSR. We agree with Asta that the district court failed to make specific findings regarding most of her objections to items contained in the PSR, and we remand this case to the district court for the limited purpose of affording the district court another opportunity to do so. However, despite the district court's failure to make specific findings on all of the objections raised, we see no abuse of discretion in the ultimate sentence imposed, and therefore affirm Asta's sentence.

A

¶27 Under Utah law, when a defendant raises specific objections to items contained within a PSR, a district court must examine those objections and "shall make a determination of relevance and accuracy on the record." Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2018). In particular, this court has stated that

once a defendant alleges factual inaccuracies in a [PSR], the district court must do three things: first, consider the objection raised; second, make findings on the record regarding the accuracy of the information at issue; and third, determine on the record the relevance of that information as it relates to sentencing.

State v. Monroe , 2015 UT App 48, ¶ 6, 345 P.3d 755. This is important even if the alleged inaccuracies in the report do not turn out to be relevant to the sentence imposed, because "the [PSR] will follow [the defendant] through the justice system," id. ¶ 10, and things that appear irrelevant at sentencing might become relevant years later at a parole hearing.

¶28 In this case, there is no doubt that Asta made objections to the PSR. Indeed, Asta filed a ten-page written document the day before the sentencing hearing in which she set forth certain objections to the contents of the PSR, and then at the sentencing hearing Asta emphasized many of those objections. Those objections generally fell into two categories. First, Asta pointed out a few minor factual inaccuracies in the PSR, including her age and her precise plea in both this case as well as the other dismissed cases. Second, and more substantively, Asta took issue with the PSR's ultimate recommendation that Asta be sent to prison, as well as the specific basis for that recommendation. Asta asserted that AP&P's contention that certain aggravating circumstances were present was simply wrong, and raised specific challenges to AP&P's conclusion that Asta had "no remorse," "blames co-defendant," "refused to cooperate with law enforcement," and had "rammed" Officer's vehicle.

¶29 There is also no doubt that these objections were discussed at great length during the sentencing hearing, and that the district court heard extensive argument from both sides on all of these issues, and considered each of these objections in the context of imposing sentence. Both Officer as well as an AP&P supervisor personally addressed the court, gave a statement, and answered questions; Officer spoke directly to the issue of whether Asta "rammed" his vehicle, and the AP&P supervisor provided AP&P's perspective on the aggravating circumstances. In addition, Asta's attorney made an impassioned argument on all of the issues raised, and the court heard directly from both Asta as well as her mother.

¶30 However, at no point did the court pause to make specific rulings or findings on most of the objections raised. Implicit in the court's remarks, as it imposed sentence upon Asta, were rulings on some of the objections. For instance, the court found that Asta had in fact committed an "intentional act of ramming [Officer's] vehicle" on the night in question, and stated that it did not believe Asta's claim that she was unaware that Boyfriend was going to commit burglary when he exited the vehicle. But the court did not make a finding on Asta's age or the form of her plea, and made no finding on whether Asta had shown remorse or whether she had refused to cooperate with law enforcement. We recognize that, to some extent, some of these issues are argumentative rather than strictly factual. However, in previous cases, Utah appellate courts have required district courts to make specific rulings and findings on issues such as whether a victim was "particularly vulnerable" and whether her injuries were "unusually extensive," see State v. Jaeger , 1999 UT 1, ¶ 42, 973 P.2d 404, and whether AP&P's assessment of a defendant's "attitude and lack of remorse" was accurate, see State v. Irey , 2017 UT App 178, ¶ 4, 405 P.3d 876 (per curiam).

¶31 When objections like these are raised, the district court must do three things: consider the objections, make findings on the record regarding their accuracy, and determine on the record the relevance of that information as it relates to sentencing. See Monroe , 2015 UT App 48, ¶ 6, 345 P.3d 755 ; see also Utah Code Ann. § 77-18-1(6)(a). In this case, although the district court did consider Asta's objections and weigh those objections in the course of imposing sentence, at least with respect to most of the objections the district court did not ever take the second of the three prescribed steps: it did not make any actual findings about the accuracy of the objections. Accordingly, we must remand the case so that the district court can make those specific findings, because even if those findings did not make a difference to the court's sentencing decision, they may become relevant to Asta at some point in the future, during (for instance) proceedings before the Board of Pardons and Parole.

¶32 It does not follow from the district court's failure to make findings on each specific objection, however, that the sentence imposed is subject to reversal. In several instances, Utah appellate courts have affirmed a defendant's sentence while remanding the case for the limited purpose of having the district court make findings on specific objections to the PSR. See, e.g. , Jaeger , 1999 UT 1, ¶ 45, 973 P.2d 404 ; Irey , 2017 UT App 178, ¶ 6, 405 P.3d 876 ; Monroe , 2015 UT App 48, ¶¶ 8-9, 345 P.3d 755.

¶33 In some of those cases, even though the defendant's objections "were not adequately resolved on the record," it was nevertheless clear that "the district court properly considered the objections before it sentenced [the defendant]." See Irey , 2017 UT App 178, ¶ 6, 405 P.3d 876. In this case, as noted above, Asta's objections to the PSR were discussed at great length at the sentencing hearing. After considering Asta's objections, as well as input from the State and from AP&P, the court sentenced Asta to prison, and cited three reasons for departing from the sentencing guidelines: that it believed Asta knew what Boyfriend was doing that evening; the risk Asta's high-speed flight posed to the public; and Asta's intentional act of ramming Officer's vehicle. As noted, the court's discussion of these factors at sentencing contained implicit findings regarding these issues and, as discussed in the next section, the court's reliance on these factors in imposing sentence was entirely appropriate.

¶34 While the court, in imposing sentence, did not specifically address many of Asta's other objections to the PSR, there is no indication in the record that the court placed any particular reliance on the State's or AP&P's position in response to those other objections, or that the court found the subject matter of those other objections particularly relevant to its sentencing inquiry. When "[t]here is no indication in the record that the district court relied on the allegedly inaccurate information at sentencing," there is no basis for reversal and resentencing, even though the court may not have made specific findings on all of the issues raised. Id. ; see also State v. Moa , 2012 UT 28, ¶ 35, 282 P.3d 985 (stating that "an appellate court cannot presume there is evidence of reliance from a silent record or mere introduction of potentially irrelevant information"); Monroe , 2015 UT App 48, ¶¶ 8-9 & n.3, 345 P.3d 755 (stating that "[w]e are not convinced that the district court's failure to resolve Defendant's objections requires reversal and resentencing," in part because many of those objections "just did not matter"). Accordingly, in this case, we may affirm the district court's sentencing decision, irrespective of its failure to fully dispose of all of Asta's objections to the PSR, so long as the court's sentencing decision was otherwise proper.

B

¶35 And we find no abuse of discretion in the district court's decision to sentence Asta to prison. Asta makes two arguments to the contrary, neither of which we find persuasive. First, Asta argues that the district court, in imposing sentence, relied upon information that was neither reliable nor relevant. Second, Asta asserts generally that the district court failed to adequately weigh or consider other information that Asta provided, and that the court therefore abused its discretion by sentencing her to prison rather than to probation.

1

¶36 The Utah Constitution "requires that a sentencing judge act on reasonably reliable and relevant information in exercising discretion in fixing a sentence." State v. Wanosik , 2001 UT App 241, ¶ 34, 31 P.3d 615 (quotation simplified) (referencing Article 1, Section 7 of the Utah Constitution ), aff'd , 2003 UT 46, 79 P.3d 937 ; see also id. (stating that it is "a criminal defendant's right to be sentenced based on relevant and reliable information regarding his crime, his background, and the interests of society"). However, a defendant challenging his sentence on the ground that the court improperly considered certain information bears the burden of demonstrating both that the court relied upon the information in question, and that the information "was unreliable or irrelevant." Moa , 2012 UT 28, ¶¶ 35-36, 282 P.3d 985. Showing evidence of reliance, "such as a judge's affirmative representation of reliance, is necessary because neither our case law nor our statutes require a district court to make specific findings of fact in a sentencing order." Id. (quotation simplified). We will not presume, absent some evidence, that a court actually relied on any particular piece of information. Id. And even "[w]hen there is evidence in the record showing a sentencing judge's reliance on specific information, we will not consider it improper for a judge to rely on such information if the evidence in question had indicia of reliability and was relevant in sentencing." Id. ¶ 36 (quotation simplified).

¶37 Asta asserts that the district court relied on the following pieces of information that she contends are unreliable or irrelevant: that Asta "rammed" Officer's vehicle; that Asta knew what Boyfriend intended to do when he exited the vehicle on the evening in question; that Asta refused to provide law enforcement with her home address; and that no snacks were found in the vehicle.

¶38 There is no indication in the record, however, that the district court relied upon the last two of those pieces of information; at no point did the district court indicate that it found relevant the issue of whether Asta did or did not provide law enforcement with her home address, or whether any snacks were found inside the vehicle at the conclusion of the car chase. As noted, we will not presume reliance from the "mere introduction of potentially irrelevant information." Moa , 2012 UT 28, ¶ 35, 282 P.3d 985. Accordingly, Asta has failed to meet her burden with regard to these two pieces of information.

¶39 The court did, however, clearly rely upon the other two pieces of information to which Asta points: that Asta "rammed" Officer's vehicle, and that Asta had to have some knowledge of Boyfriend's burglary plans that evening. We conclude that both of these pieces of information were reasonably reliable and unquestionably relevant.

¶40 With regard to the "ramming," the court heard from Officer and specifically questioned him regarding the incident. Officer provided a personal, firsthand account of the car chase and the PIT maneuver, and expressed to the court his belief that Asta had indeed "rammed" his vehicle. Moreover, it is undisputed that Asta pled "no contest" to second-degree felony assault against a police officer, a violation requiring "an attempt, with unlawful force or violence, to do bodily injury to another," with a "means or force likely to produce death or serious bodily injury." See Utah Code Ann. § 76-5-102 (LexisNexis 2017) ; id. § 76-5-102.4(4). Thus, the very nature of the crime to which Asta pled "no contest" requires the inference that Asta intended to forcefully assault a police officer. In our view, whether the contact that occurred between Asta's vehicle and Officer's is best characterized as "ramming," "colliding," or "scraping" is ultimately inconsequential; the district court had before it credible information that Asta intended to assault a police officer, and that she used a car as her weapon of choice. Accordingly, the district court's conclusion that Asta intentionally "rammed" Officer's vehicle was based on reasonably reliable and relevant information.

¶41 Finally, we find nothing improper about the court's conclusion that Asta must have known something of Boyfriend's nefarious plans on the evening in question. Again, Asta pled "no contest" to burglary, which requires intent to commit the crime. Moreover, the State had also dismissed nine other burglary charges against Asta in exchange for information regarding the State's prosecution of Boyfriend, and the sentencing judge in this case had signed the orders dismissing those charges. See State v. Valdez , 2017 UT App 185, ¶ 13, 405 P.3d 952 (stating that "we disagree with [the defendant's] specific contention that dismissed or reduced charges are irrelevant or unreliable information regarding the gravity and circumstances of [the defendant's] crime or background"). Furthermore, it was undisputed that Boyfriend was wearing a shoulder holster and had two handguns in his possession. The district court properly relied on this information, which came from reliable sources and was clearly relevant, in reaching its conclusion that Asta's version of events was not credible.

¶42 Accordingly, because Asta has failed to show that the district court actually relied on any information that was unreliable or irrelevant in reaching its sentencing decision, Asta's first argument fails.

2

¶43 Next, Asta argues that the district court failed to consider other factors and pieces of information, including her lack of prior criminal history, and that the court ultimately abused its discretion in sentencing her to prison rather than suspending her prison sentence and affording her the privilege of probation.

¶44 As noted above, sentencing decisions are generally reviewed for abuse of discretion. See State v. Neilson , 2017 UT App 7, ¶ 15, 391 P.3d 398. But "a defendant is not entitled to probation," see State v. Valdovinos , 2003 UT App 432, ¶ 23, 82 P.3d 1167 (quotation simplified), and therefore, in particular, "the decision whether to grant probation is within the complete discretion of the trial court," State v. Hernandez , 2016 UT App 251, ¶ 9, 391 P.3d 349 (quotation simplified). Indeed, "[t]he granting or withholding of probation involves considering intangibles of character, personality and attitude, of which the cold record gives little inkling" and "must of necessity rest within the discretion of the judge who hears the case." Valdovinos , 2003 UT App 432, ¶ 23, 82 P.3d 1167 (quotation simplified). Accordingly, the decision to grant or deny probation is reviewed for abuse of discretion, which is present only where the court "fails to consider all legally relevant factors or if the sentence imposed is clearly excessive." Id. ¶ 14 (quotation simplified).

¶45 In this case, Asta asserts that the district court failed to consider several legally relevant factors, including most significantly her lack of prior criminal history, but also her asserted remorse, as well as her claims that she would be unable to pay restitution if imprisoned, and that her culpability in these crimes should be viewed as far lower than Boyfriend's. But Asta overlooks the fact that the district court had all of that information in front of it, and entertained lengthy argument on all of those topics and more. Although the court did not make specific mention of all of these items in its sentencing decision, there is certainly no indication, in the record, that the district court refused to consider any of the information Asta presented. Under these circumstances, we will presume that the district court did in fact consider the information. See State v. Helms , 2002 UT 12, ¶ 11, 40 P.3d 626 (stating that "we will not assume that the trial court's silence, by itself, presupposes that the court did not consider the proper factors as required by law" unless "an ambiguity of facts makes the assumption unreasonable," a statute requires written findings, or "a prior case states that findings on an issue must be made"); Hernandez , 2016 UT App 251, ¶ 10, 391 P.3d 349 (stating that where "[t]he court was privy to all of [the presentencing] information, and there is no indication that it failed to consider any relevant factor or that it considered any improper factor in making its decision," we will presume that the court considered the proper information).

¶46 Finally, Asta asserts that the district court gave insufficient weight to the sentencing guidelines matrix that pointed, in Asta's case, to probation instead of prison. But "sentencing matrices are advisory and do not create any right or expectation on behalf of the offender." State v. Monzon , 2016 UT App 1, ¶ 12, 365 P.3d 1234 (quotation simplified). We cannot say that a court abused its discretion simply because it opted not to follow the sentencing matrix. As noted above, there were aggravating circumstances-most notably that Asta had led police on two separate high-speed car chases through the community, and had intentionally run into a police car in the process-that the district court found persuasive, and it was not an abuse of discretion in this case for the court to decline to follow the sentencing matrix. Indeed, "the fact that the district court assessed the relevant factors differently than a defendant would have liked does not indicate that it exceeded its discretion." See State v. Wood , 2018 UT App 98, ¶ 12, 427 P.3d 452 (quotation simplified).

CONCLUSION

¶47 We find no reversible error in the sentencing judge's actions regarding recusal, or in the reviewing judge's denial of the motion to disqualify. We perceive no abuse of discretion in the district court's decision to sentence Asta to prison, and accordingly affirm Asta's sentence. However, the district court failed to completely resolve all of Asta's objections to items contained within the PSR, and we therefore remand for the limited purpose of entering express findings on those objections.

      After Asta's brief was filed, the State filed a motion to strike certain exhibits attached to Asta's brief on the ground that those exhibits were not part of the record. We granted that motion. Asta then sought several extensions of time within which to file a reply brief, but never did file one. Instead, after the State's brief was filed, Asta filed a motion, grounded in rules 23 and 23B of the Utah Rules of Appellate Procedure, seeking leave to "amend her [opening] Brief to include a claim for ineffective assistance of counsel" (IAC), and for an order remanding the case to the trial court for additional fact-finding on a potential IAC claim. In her opening brief, Asta spent less than a page arguing, in the alternative, that her trial counsel had been ineffective; we perceive her post-brief motion seeking leave to state an IAC claim as an acknowledgment that any IAC claim contained in the opening brief was inadequately briefed. Asta's motion for leave to bring that claim for the first time now is essentially a request to re-start the briefing in this case, and we decline Asta's invitation to do so. It is a well-established rule that any claims not raised in the opening brief are waived. See Allen v. Friel , 2008 UT 56, ¶ 8, 194 P.3d 903 (stating that "issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court" (quotation simplified) ). No additional briefing may be had "except with leave of the appellate court," see Utah R. App. P. 24(c), and we decline to exercise our discretion to allow amendment here. Accordingly, we deny Asta's motion for leave to amend and for remand.

      Rule 63 of the Utah Rules of Civil Procedure sets forth a nearly identical process that is to be followed in civil cases. See Utah R. Civ. P. 63(c).

      Utah Code sections 77-18-1, 76-5-102, and 76-5-102.4, see supra ¶39, have been amended since Asta was sentenced in 2016. Because the pertinent text of the statutes has not changed, we cite to the current version of the statute for convenience.