Gunn Hill Dairy v. L.A. Dept. of Water and Power

2015 UT App 261
T HE U TAH COURT OF A PPEALS
GUNN HILL D AIRY PROPERTIES, LLC, ET AL.,
Plaintiffs and Appellants,
v.
LOS A NGELES DEPARTMENT OF WATER AND POWER , ET AL.,
Defendants and Appellees.
Opinion
No. 20140907-CA
Filed October 29, 2015
Fourth District Court, Nephi Department
The Honorable M. James Brady
No. 120600029
Richard D. Burbidge, Jefferson W. Gross, Carolyn J.
LeDuc, Don Howarth, Suzelle M. Smith, and Padraic
J. Glaspy, Attorneys for Appellants
Michael D. Zimmerman, Linda M. Jones, Clemens A.
Landau, Michael L. Larsen, Brandon J. Mark, John M.
Fitzpatrick, and Eric D. Nadolink, Attorneys
for Appellees
JUDGE J AMES Z. D AVIS authored the lead opinion, in which JUDGES
GREGORY K. O RME AND K ATE A. TOOMEY concurred. JUDGE
GREGORY K. O RME authored a concurring opinion, in which
JUDGE K ATE A. TOOMEY concurred.
DAVIS, Judge:
¶1 	Appellants are current and former owners of dairy farms
located in Millard County, Utah (the Dairies).1 Appellees (IPP)
1. The parties on appeal are not limited to those listed in the
caption, but also include other parties whose names appear on
(continued…)

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own or operate the Intermountain Power Plant. This case comes
to us on the Dairies’ motion for interlocutory review of the trial
court’s denial of their motion to change venue. We granted the
motion for interlocutory review and we affirm the trial court’s
ruling.
BACKGROUND
¶2 	This case has a long history, beginning with the Dairies
initially 	filing 	suit 	in 	2003 	in 	Los 	Angeles, 	California. 	The
California court stayed that case on forum non conveniens
grounds. See Luth v. Department of Water & Power of City of Los
Angeles, 2004 WL 1203002, at *1, *6 (Cal. Ct. App. June 2, 2004)
(affirming the stay on appeal). The Dairies then filed a complaint
in 2005 in the Third District Court, Salt Lake County, Utah. That
court granted IPP’s motion to transfer the case to the Fourth
District Court in Millard County, and the initially assigned judge
granted the Dairies’ motion to change venue within the Fourth
District to adjacent Juab County to avoid potential jury bias in
light of the fact that IPP was one of the largest employers in
Millard County and the largest taxpayer in that county.
¶3 	The case remained in Juab County, aside from an earlier
interlocutory detour to this court, see Gunn Hill Dairy Props., LLC
v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 2, 269
P.3d 980, and went to trial in September 2013. After several
weeks of trial, IPP moved for a mistrial based on a question the
Dairies’ attorney asked a witness that referenced settlement
negotiations. The court denied the motion. A week later, the
court held an in camera discussion with one juror (Juror 9) after
the court’s bailiff described to the court a conversation Juror 9
(…continued)
the notice of appeal or who have otherwise entered appearances
in this court.

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had with the bailiff. In the in camera discussion with the trial
court, Juror 9 indicated that prior to the jury being impaneled,
her sister-in-law told her that she favored IPP. Juror 9 also
indicated that her mother expressed to her a similar preference
for IPP during trial, warning Juror 9 that a verdict against IPP
would threaten people’s jobs. Additionally, Juror 9 indicated to
the trial court that her husband was biased against farmers and
had been for some time. However, Juror 9 also explained that
she had “no idea” how she would vote on the case and felt “very
torn.”
¶4 	The Dairies orally moved for a mistrial in light of Juror 9’s
statements, arguing that the pressures placed on Juror 9 indicate
that IPP succeeded in its attempt to taint the jury pool when it
“assembled all of [its] employees” “immediately prior to trial”
“and advised them that, if the [Dairies] were successful in this
trial, . . . [the power plant] would be shut down and jobs would
be lost.” IPP disputed the Dairies’ claim that it attempted to taint
the 	jury 	pool 	and 	described 	its 	pretrial 	meeting 	with 	its
employees 	as 	a 	“perfectly 	privileged 	conversation” 	during
which 	it 	responded 	to 	employees’ 	questions 	and 	concerns
regarding the lawsuit. Nonetheless, IPP’s counsel stated, “[S]ince
we moved for a mistrial last week, . . . we cannot oppose [the
Dairies’] motion for mistrial, now, without waiving our own
motion for mistrial and I affirmatively believe that a mistrial
should have been granted last week.” The trial court indicated
that the motion was seemingly unopposed and that “[t]here
seems to be justification for a mistrial, at least in the eyes of the
plaintiff there is, for this reason, and in the eyes of the defendant,
there is for other reasons.” The court then ruled, “Because each
side of this case has requested a mistrial and wants to preserve
their rights under their claims of mistrial, the Court, really, has
no option but to grant the mistrial.”
¶5 	The Dairies subsequently moved to change venue again,
this time from Juab County to Utah County, the northernmost

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county in the Fourth District. The trial court initially granted the
Dairies’ motion to change venue (the First Order) but later
vacated its ruling. In the First Order, the court stated, “Based on
[the Dairies’] unopposed motion, and the court’s own experience
and observations of events occurring during the first trial, . . . the
court is persuaded that an impartial trial may not be had in Juab
County due to IPP’s influence 	in Juab County.” The court
concluded 	that 	its 	“in 	camera 	discussion 	with 	[Juror 	9]
confirm[ed] [the Dairies’] allegation that there is substantial
concern among the citizens of Juab County about the potential
effect of a ruling against IPP.” The trial court later vacated this
order after learning that the Dairies had agreed to give IPP more
time to file its opposition to the motion to change venue.
¶6 	When the trial court revisited the motion, it concluded
that the Dairies’ arguments in favor of changing venue were
based on conjecture rather than evidence and denied the motion
(the Denial Order). The court implicitly rejected any connection
between 	Juror 	9 	and 	the 	Dairies’ 	alleged 	existence 	of 	a
community-wide bias, stating, “During the trial, inappropriate
communications by members of a specific juror’s family caused
pressure to bear on one juror.” Additionally, the court observed
that despite the Dairies’ claims that IPP’s influence in Juab
County was pervasive, in “[t]he actual experience of the court
and the parties . . . , an impartial jury was impaneled without
much difficulty.” The Dairies now seek interlocutory review of
the Denial Order.
ISSUE AND STANDARD OF REVIEW
¶7 	The Dairies challenge the trial court’s denial of its motion
to change venue. A trial court “may, on motion, change the place
of trial . . . when there is reason to believe that an impartial trial
cannot be had in the county, city, or precinct designated in the
complaint.” Utah Code Ann. § 78B-3-309(2) (LexisNexis 2012).
We review a trial court’s ruling on a motion to change venue for

Gunn Hill Dairy v. Los Angeles Department of Water and Power
20140907-CA 	5 	2015 UT App 261
an abuse of discretion. City of Grantsville v. Redevelopment Agency
of Tooele City, 2010 UT 38, ¶ 53, 233 P.3d 461.
ANALYSIS
¶8 	The Dairies raise several challenges to the Denial Order.
First, the Dairies argue that the court’s in camera discussion with
Juror 9 reveals that the jury was not impartial when it was
impaneled and that, accordingly, there is no basis for the court to
presume that an impartial jury could be impaneled on retrial.
The Dairies also argue that the trial court abused its discretion
by 	applying 	the 	wrong 	legal 	standard. 	We 	address 	each
argument in turn.
I. Jury Impartiality
¶9 	The 	Dairies 	contend 	that 	the 	trial 	court 	abused 	its
discretion in denying the motion to change venue to the extent
the court based its ruling on the clearly erroneous factual finding
that “an impartial jury was impaneled without much difficulty.”
The Dairies contend that the trial court’s declaration of a mistrial
and the court’s statements in the First Order contradict this
finding and that the court abused its discretion by entering
contradictory factual findings.
A. 	Grounds for Mistrial
¶10 	According to the Dairies, the trial court declared a mistrial
based 	on 	the 	Dairies’ 	argument 	that 	Juror 	9’s 	in 	camera
statements to the trial court revealed that she was not impartial
when the jury was impaneled and that as a result, an impartial
jury was never impaneled in this case. The Dairies also argue
that IPP “did not oppose the motion.”
¶11 	The trial court’s oral ruling indicates that it declared a
mistrial “[b]ecause each side of this case ha[d] requested a

Gunn Hill Dairy v. Los Angeles Department of Water and Power
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mistrial and want[ed] to preserve their rights under their claims
of mistrial.” As a result, the court declared that it, “really, ha[d]
no option but to grant the mistrial.” The court clarified in a
written ruling related to the Dairies’ venue motion that “[t]he
initial trial in Juab County ended in a mistrial as a result of jury
tampering 	where 	one 	juror 	was 	improperly 	subjected 	to
influence and pressures from [her] family members during the
trial and before deliberations.”
¶12 	Moreover, when the trial court described its in camera
discussion 	with 	Juror 	9 	to 	the 	parties, 	the 	court 	did 	not
specifically describe Juror 9 as being biased before or during
trial. Rather, the court indicated that Juror 9’s family engaged in
improper communications with her and pressured her to vote in
favor of IPP but that Juror 9 had not actually decided how she
would 	vote. 	Juror 	9’s 	statements 	did 	not 	suggest 	that 	her
family’s concerns were related to anything her relatives heard
from IPP or IPP employees. This description coincides with the
trial court’s statement in the Denial Order that “[d]uring the
trial, inappropriate communications by members of a specific
juror’s family caused pressure to bear on one juror.” While we
agree that the outside pressures put on Juror 9 by members of
her family raised legitimate questions about her ability to remain
impartial, Juror 9’s statements do not necessarily demonstrate
that she was biased when the jury was impaneled. Accordingly,
we reject the Dairies’ argument that the trial court granted a
mistrial specifically because an impartial jury was not initially
impaneled. The trial court’s finding in the Denial Order that an
impartial jury was readily impaneled is not contradicted by the
court’s declaration of a mistrial.
B. 	The First Order
¶13 	Additionally, the Dairies argue that the trial court abused
its discretion when it failed to explain its finding in the Denial
Order that an impartial jury was impaneled in light of the court’s

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contradictory 	observation 	in 	the 	First 	Order 	that 	“there 	is
substantial concern among the citizens of Juab County about the
potential effect of a ruling against IPP.” To the extent the Dairies’
argument presupposes that the First Order retains any weight or
authority despite the fact that the trial court specifically vacated
the order, we disagree. A vacated order is a nullity. See Black’s
Law Dictionary 1688 (9th ed. 2009) (defining “vacate” as “[t]o
nullify or cancel; make void; invalidate”). And the trial court
was under no obligation to enter a subsequent ruling on the
Dairies’ motion to change venue that mirrored or complemented
the First Order after the court vacated that order.2
¶14 	Moreover, the court did offer an explanation as to why it
set aside the First Order. During a subsequent hearing, the court
explained that it entered the First Order in accordance with a
schedule the court established with the parties by which the
parties would submit all of their filings and responses related to
the motion to change venue within the first three weeks of
December and the court would rule on the motion by the end of
the year. The court indicated that it entered the First Order in
accordance with the established schedule after IPP failed to file a
timely response, believing the motion to be unopposed. The
court later learned that the parties had agreed IPP could have
more time to respond to the motion. On that basis and in light of
the “significant” consequences the ruling would have for the
parties, 	the 	court 	decided 	to 	vacate 	the 	order. 	The 	court
explained, “I felt that it was more appropriate to give [IPP] the
opportunity and [the Dairies] the opportunity to live by the
agreements they had than it was necessary for the Court to make
a decision by that specific date.” The court also explained that its
intent was to “completely set aside” the First Order and to
consider the motion anew, without any regard to its prior
2. The Dairies do not challenge the propriety of the court’s
decision to vacate the First Order.

Gunn Hill Dairy v. Los Angeles Department of Water and Power
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evaluation. Thus, contrary to the Dairies’ assertion, the court did
explain why it set aside the First Order and it also explained
why the findings from the First Order were not duplicated in the
Denial Order, i.e., because the court entered the Denial Order
after both sides presented arguments. The court entered the First
Order believing the motion for change of venue was unopposed
and 	entered 	the 	Denial 	Order 	after 	having 	considered
memoranda and oral arguments from both sides.
¶15 	The 	trial 	court 	otherwise 	entered 	sufficient 	written
findings in its Denial Order to substantiate its ruling. The court’s
finding that an impartial jury was impaneled in the first trial
without much difficulty is supported by record evidence that the
jury selection process took only one day even though the court
set aside two days for the process. Likewise, an eight-person jury
and four alternate jurors were impaneled after roughly fifty
prospective jurors were screened, even though a 100-person jury
pool was initially called. The court distributed to the jury pool
questionnaires 	assembled 	from 	questions 	supplied 	by 	both
parties, conducted in-chambers voir dire with the attorneys for
each side, and allowed each side four preemptory strikes. The
court’s conclusion that Juror 9 was subject to inappropriate
communications and pressure from her family members during
the 	trial 	is 	distinct 	from 	the 	conclusion 	the 	Dairies 	would
prefer—that Juror 9 was actually biased before or during trial.
Indeed, the court concluded that the “evidence falls short of
establishing” that Juror 9’s experience of social pressures was
connected to any attempt by IPP to taint the jury pool by
creating a community-wide bias in its favor. Accordingly, the
trial court’s finding that an impartial jury was impaneled in the
first trial is not clearly erroneous, is not contradicted by either
the court’s oral declaration of a mistrial or the First Order, and is
supported by the record evidence.

Gunn Hill Dairy v. Los Angeles Department of Water and Power
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II. Legal Standard
¶16 	The Dairies next contend that the trial court applied the
wrong legal standard in denying their motion to change venue.
Specifically, the Dairies argue that “the trial court here relied
heavily 	upon 	a 	misapplication 	of 	the 	decision 	in 	City 	of
Grantsville v. Redevelopment Agency of Tooele City, 2010 UT 38,
¶ 53, 233 P.3d 461.” The Dairies contend that Grantsville does not
apply here because that case involved a pretrial motion to
change 	venue, 	which 	requires 	a 	court 	to 	“undertake 	a
prospective analysis” aimed at predicting “whether a fair and
impartial jury can be selected.” See Butterfield v. Sevier Valley
Hosp., 2010 UT App 357, ¶ 14, 246 P.3d 120. Instead, the Dairies
assert, because this case had already proceeded to trial, “no
prediction is necessary” and the “determinative question” for
the reviewing court is “whether the case was in fact tried by a
fair and impartial jury.” See id. ¶ 15 (citation and internal
quotation marks omitted).
¶17 	IPP argues that the Grantsville standard is proper in this
situation 	because 	the 	declaration 	of 	a 	mistrial 	essentially
returned the parties to a pre-trial position. IPP also argues that
because 	the 	jury 	never 	reached 	a 	verdict 	in 	this 	case, 	the
analytical framework promoted by the Dairies is not on point.
¶18 	We agree that the Dairies’ application of a post-trial
perspective is not appropriate here, where the first trial did not
end in a verdict. However, we also agree that the prospective
analysis promoted by IPP cannot occur in a vacuum; the court
should consider the realities of the situation, i.e., that it declared
a 	mistrial, 	in 	part, 	because 	of 	jury 	tampering. 	However,
regardless of which standard of review argued by the parties
applies to the analysis, the outcome depends on the import of
Juror 	9’s 	experience, 	i.e., 	whether 	the 	pressure 	Juror 	9
experienced was indicative of a community-wide bias or was
confined 	to 	that 	juror’s 	particular 	situation. 	The 	Dairies’

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20140907-CA 	10 	2015 UT App 261
argument 	presupposes 	that 	Juror 	9’s 	bias 	resulted 	from 	a
community-wide bias in favor of IPP, and that Juror 9’s bias is
evidence that the jury was either not impartial when it was
impaneled because Juror 9 was biased from the start, or that the
jury 	did 	not remain 	impartial 	during 	trial 	because 	Juror 	9
became biased.
¶19 	However, the trial court clearly found that the pressure
experienced by Juror 9 was confined to that juror and that
Juror 9’s 	unique 	situation 	did 	not 	substantiate 	the 	Dairies’
allegations that the jury pool was tainted, either by IPP’s alleged
proactive efforts or by IPP’s pervasive influence in the county.
The Dairies do not specifically challenge these findings and
instead reargue their position on appeal. This is insufficient to
demonstrate an abuse of discretion. See State v. Nielsen, 2014 UT
10, ¶ 40, 326 P.3d 645 (“[A] party who fails to identify and deal
with supportive evidence will never persuade an appellate court
to reverse under the deferential standard of review that applies
to such issues.”).
CONCLUSION
¶20 	The trial court did not abuse its discretion in denying the
Dairies’ motion to change venue. Affirmed.
ORME, Judge (concurring specially):
¶21 	Judge Toomey and I join in affirming the trial court’s
decision—not because we think it was the right decision but
because of our deferential standard of review. Skeptics believe
that appellate standards of review do not really matter; that
appellate judges pay lip service to standards of review but then
decide cases as they please without real regard for the applicable
standard of review. Our votes in this case demonstrate that
standards of review really do matter.

Gunn Hill Dairy v. Los Angeles Department of Water and Power
20140907-CA 	11 	2015 UT App 261
¶22 	To explain, were either of us the trial judge, we would
have granted the motion for a further change of venue. Our
rationale would be that the big decision 	had already been
made—the decision to move the case from the county where the
cause of action arose to some other county in the Fourth District.
That 	decision 	having 	been 	made, 	notwithstanding 	the
opposition of IPP who was anxious to hold on to its home-court
advantage, we would be much less fussy about which other
county in the Fourth District might be the best destination for
the retrial of this case. And we would be persuaded that in
moving venue from Millard County to adjacent Juab County,
only one county north, it had not been moved far enough from
IPP’s preferred venue. And IPP’s determined opposition to a
further move—to a locale that would be closer to its local
attorneys’ offices and closer to the international airport that
serves the many out-of-state experts and attorneys involved in
the case—would tend to confirm our assessment.
¶23 	We would also not be too quick to conclude that the juror
problem in the first trial was a complete fluke. Both of us would
consider it entirely possible that the dairy-versus-power-plant
controversy would be a much bigger deal in rural Juab County
than in the now largely urban Utah County. The drama that has
played out in Millard County and in Juab County would be a
nonissue 	in 	Utah 	County, 	maximizing 	the 	chances 	for
empaneling an impartial jury and minimizing the chances for yet
another mistrial. We are not saying a fair trial in Juab County is
impossible—only that a fair trial in Utah County is at least
somewhat more likely. And that would be enough for us, given
that the difficult decision had already been made, namely, the
decision to move the trial from the county where the cause of
action arose to some other county.
¶24 	But neither of us was the trial judge. And we do not
review a trial judge’s change of venue decision de novo but only
for an abuse of discretion. We readily join our colleague in

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concluding that the trial judge did not abuse his discretion in
ruling as he did. He considered all the relevant factors. He
explained the basis for his decision in some detail. He explained
why he reversed himself after his false start was called to his
attention. In short, while we think the trial judge made the
wrong call, it was, in its essence, a discretionary call—and one
that was within the broad range of discretion entrusted to him.