Zelig v. Uintah County|

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 69
_________________________________________________________
THE UTAH COURT OF APPEALS
MARK ZELIG,
Plaintiff, Appellee, and Cross-appellant,
v.
UINTAH COUNTY,
Defendant, Appellant, and Cross-appellee.
Memorandum Decision
No. 20120885-CA
Filed March 27, 2014
Third District Court, Salt Lake Department
The Honorable John Paul Kennedy
No. 090909765
Jonathan A. Stearmer, Jesse C. Trentadue, and
Britton R. Butterfield, Attorneys for Appellant and
Cross-appellee
Bruce H. Shapiro and Andrew M. Wadsworth,
Attorneys for Appellee and Cross-appellant
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE JAMES Z. DAVIS and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
ORME, Judge:
¶1 Uintah County appeals from a district court order awarding
expert fees, interest, and attorney fees to Dr. Mark Zelig. We vacate
the judgment of the district court.

Zelig v. Uintah County
20120885-CA 2 2014 UT App 69
¶2 This appeal arises from events that occurred in a case
pending before the Eighth District Juvenile Court involving the
termination of a mother’s parental rights. At some point in the case,
her initial choice having stepped aside due to a conflict, the
impecunious mother asked the court to appoint Dr. Zelig as an
expert custody evaluator. Dr. Zelig provided the court with a copy
of his standard contract, along with his curriculum vitae. The
juvenile court provided Uintah County with a “Notice of Motion
and Opportunity to Object,” along with the documents Dr. Zelig
submitted. The contract was never signed by Uintah County. When
no objections were made, the juvenile court issued an order
appointing Dr. Zelig to serve as an expert witness “for and in
behalf of [the] mother.” This order also provided that “Uintah
County shall be responsible for the reasonable expert witness fees
of Dr. Mark Zelig, including evaluations of mother, and children as
would be helpful to the Court and the parties in dealing with the
issues of this case.” Without first insisting that Uintah County sign
his standard contract, or any other contract for that matter, Dr.
Zelig then began serving as an expert and did so through the
conclusion of trial.
¶3 During the course of his pretrial involvement, Dr. Zelig
submitted two comparatively small invoices to Uintah County. At
the conclusion of trial, Dr. Zelig submitted a substantially larger
invoice to Uintah County for the total cost of his services. Uintah
County then filed a motion for a hearing with the juvenile court to
determine the reasonableness of Dr. Zelig’s expert witness fees. Dr.
Zelig had not received notice of the hearing and consequently did
not attend. The juvenile court did not enter an order in the absence
of Dr. Zelig.
¶4 Dr. Zelig then filed suit against Uintah County in the Third
Judicial District Court to recover his expert witness fee, related
costs, interest, and attorney fees allegedly owed him under his
expert witness contract. Uintah County filed a motion to dismiss or
change venue, arguing that the case belonged in the juvenile court.
When this motion was denied, Uintah County filed a request for a
hearing before the juvenile court seeking to have the issue of the

Zelig v. Uintah County
2. Uintah County essentially conceded at oral argument before this
court that if the juvenile court determined the amount of the
reasonable fee awardable to Dr. Zelig and Uintah County refused
to pay it, a collection action in district court might then be
appropriate.
3. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current version of the Utah Code
Annotated as a convenience to the reader.
20120885-CA 3 2014 UT App 69
reasonableness of Dr. Zelig’s fees heard by the same court that
appointed Dr. Zelig and presided over the trial in which he
testified. The juvenile court expressed its reluctance to wade in,
given the pending district court proceeding.
¶5 The district court ordered Uintah County to pay Dr. Zelig’s
attorney fees attributable to resisting the motion filed with the
juvenile court, concluding that the motion was a violation of the
district court’s ruling that venue was proper in the Third District
Court. The district court also ruled in Dr. Zelig’s favor on all of his
contractual and quasi-contractual claims and awarded him his
expert fees and costs, prejudgment interest, and attorney fees. The
award totaled $91,058.52.
¶6 Uintah County contends that the juvenile court had sole
responsibility for setting the amount of Dr. Zelig’s reasonable fee
and that the district court thus lacked jurisdiction over the
dispute—at least until that important step had been taken. We2
agree.
¶7 Section 78B-1-151 of the Utah Code provides that a “court
may appoint any expert witness agreed upon by the parties or of
its own selection. The court shall inform the expert of required
duties in writing and a copy shall be filed with the court record.”
Utah Code Ann. § 78B-1-151(1) (LexisNexis 2012). Cf. id. § 78A-6-3
515 (specifying guidelines for juvenile courts to follow when
appointing mental health therapists). This was done, albeit in

Zelig v. Uintah County
20120885-CA 4 2014 UT App 69
rather sparse terms, in the “Order Appointing Expert Witness
Custody Evaluator,” in which the juvenile court appointed Dr.
Zelig and recited that he would conduct “evaluations of mother,
and children as would be helpful to the Court and the parties in
dealing with the issues of this case.” The same section of the Utah
Code also provides that the “court shall determine the reasonable
compensation of the expert and order payment.” Id. § 78B-1-151(3).
This section fully applies to juvenile courts. As recognized in In re
R.M., 2001 UT App 403, 38 P.3d 1006, “The plain language of
[section 78B-1-151(3)] grants the juvenile court authority to
determine the amount of the expert witness fee and the party
responsible for paying the fee.” Id. ¶ 11. Therefore, we conclude
that the juvenile court—the court that heard the underlying case
and appointed the expert in the first place—was the appropriate
court to determine the reasonableness of the work Dr. Zelig
performed, set his fee, and determine who was responsible for
payment.
¶8 Because we vacate the district court’s judgment and
conclude that the case was never properly before it, we need not
reach the other issues that Uintah County raised on appeal.
“However, we take the opportunity presented to provide
guidance” to the juvenile court in its determination of the
reasonableness of Dr. Zelig’s fees. See Buzas Baseball, Inc. v. Salt Lake
Trappers, Inc., 925 P.2d 941, 949 (Utah 1996). Although we conclude
in this case that it is ultimately the juvenile court, and not Dr.
Zelig’s contract form, that “determine[s] the reasonable
compensation of the expert,” see Utah Code Ann. § 78B-1-151(3), we
note that the fees identified in the contract form are an appropriate
starting point for the juvenile court’s deliberation. This is especially
true considering that, while the contract was never signed and Dr.
Zelig conceded that no contract was entered, both the juvenile
court and Uintah County had ready access to Dr. Zelig’s contract
form and thereby knew the customary rate he charged for his
services. Uintah County had the opportunity to object to his
appointment, but it objected neither to his appointment nor to his
stated hourly rate. And in appointing Dr. Zelig, the juvenile court

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20120885-CA 5 2014 UT App 69
did not take the occasion to disapprove or even question his stated
hourly rate.
¶9 We conclude that Utah Code section 78B-1-151 grants the
juvenile court the authority to determine the amount and
reasonableness of the expert witness fee in this case. We therefore
also conclude that the instant case, at the time and in the posture it
was brought, was never properly before the district court. We
accordingly vacate its judgment.