Davis claim in Utah

2013The record does reflect the gist of the judge’s response to the jury, and Davis is entitled to argue the merits of his claim based on the record as it stands. 20110204‐CA 34 2013 UT App 228 State v. Davis B.

2013Davis also relies on State v. Tolano, 2001 UT App 37 , 19 P.3d 400 .

2013Davis also relies on State v. Tolano, 2001 UT App 37 , 19 P.3d 400 .

2010By doing so, the court acts in furtherance of a core judicial policy to limit the scope of its power to issues in controversy." Shipman v. Evans, 2004 UT 44, ¶ 36 , 100 P.3d 1151 (citation omitted); see also In re Fabian A., 106 Conn.App. 151 , 941 A.2d 411 , 414 n. 4 (2008) (considering the mootness issue sua sponte because it "implicates the court's subject matter jurisdiction" and is "a threshold matter to resolve" (internal quotation marks omitted)); Society of Prof'l Journalists v. Bullock, 743 P.2d 1166, 1169 (Utah 1987) (raising the mootness issue sua sponte). 4 .

2010By doing so, the court acts in furtherance of a core judicial policy to limit the scope of its power to issues in controversy." Shipman v. Evans, 2004 UT 44, ¶ 36 , 100 P.3d 1151 (citation omitted); see also In re Fabian A., 106 Conn.App. 151 , 941 A.2d 411 , 414 n. 4 (2008) (considering the mootness issue sua sponte because it "implicates the court's subject matter jurisdiction" and is "a threshold matter to resolve" (internal quotation marks omitted)); Society of Prof'l Journalists v. Bullock, 743 P.2d 1166, 1169 (Utah 1987) (raising the mootness issue sua sponte). 4 .

2008First, it argues that the Commission erroneously applied Allen by (1) declining to deny and dismiss Davis’s claim for failure to prove legal causation under the Allen test; (2) instructing the medical panel to address issues that were not in dispute; and (3) requiring Utah Auto to prove that the preexisting conditions were the predominant or proximate cause of Davis’s back injury. 3 “Whether the Commission erroneously applied the Allen test is a mixed question of law and fact reviewed for reasonableness and rationality.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 11 , 44 P.3d 819 . *1255 ¶ 9 Se

2008First, it argues that the Commission erroneously applied Allen by (1) declining to deny and dismiss Davis’s claim for failure to prove legal causation under the Allen test; (2) instructing the medical panel to address issues that were not in dispute; and (3) requiring Utah Auto to prove that the preexisting conditions were the predominant or proximate cause of Davis’s back injury. 3 “Whether the Commission erroneously applied the Allen test is a mixed question of law and fact reviewed for reasonableness and rationality.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 11 , 44 P.3d 819 . *1255 ¶ 9 Se

2008First, it argues that the Commission erroneously applied Allen by (1) declining to deny and dismiss Davis’s claim for failure to prove legal causation under the Allen test; (2) instructing the medical panel to address issues that were not in dispute; and (3) requiring Utah Auto to prove that the preexisting conditions were the predominant or proximate cause of Davis’s back injury. 3 “Whether the Commission erroneously applied the Allen test is a mixed question of law and fact reviewed for reasonableness and rationality.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 11 , 44 P.3d 819 . *1255 ¶ 9 Se

2008First, it argues that the Commission erroneously applied Allen by (1) declining to deny and dismiss Davis’s claim for failure to prove legal causation under the Allen test; (2) instructing the medical panel to address issues that were not in dispute; and (3) requiring Utah Auto to prove that the preexisting conditions were the predominant or proximate cause of Davis’s back injury. 3 “Whether the Commission erroneously applied the Allen test is a mixed question of law and fact reviewed for reasonableness and rationality.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 11 , 44 P.3d 819 . *1255 ¶ 9 Se

2007George City biking/hiking trail is a city park as defined by law." Davis claims that it was error for the trial court to give this instruction and also asserts that the instruction contained an erroneous legal conclusion. 6 We agree with Davis's first argument and hold that the trial court should have allowed the jury to determine whether the bicycle path was a public park within the meaning of the drug-free zone statute. 110 In State v. Powasnik, 918 P.2d 146 (Utah Ct.App.1996), this court addressed "whether the penalty enhancement provisions of [Utah Code] section 58-37-8 constitute an eleme

2007George City biking/hiking trail is a city park as defined by law." Davis claims that it was error for the trial court to give this instruction and also asserts that the instruction contained an erroneous legal conclusion. 6 We agree with Davis's first argument and hold that the trial court should have allowed the jury to determine whether the bicycle path was a public park within the meaning of the drug-free zone statute. 110 In State v. Powasnik, 918 P.2d 146 (Utah Ct.App.1996), this court addressed "whether the penalty enhancement provisions of [Utah Code] section 58-37-8 constitute an eleme

2001"Because the propriety of a dismissal under Utah Rule of Civil Procedure 12(b)(6) is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." Warner v. DMG Color, Inc., 2000 UT 102,¶ 6 , 20 P.3d 868 .

2001"Because the propriety of a dismissal under Utah Rule of Civil Procedure 12(b)(6) is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." Warner v. DMG Color, Inc., 2000 UT 102,¶ 6 , 20 P.3d 868 .

1998The Court of Appeals held that the Double Jeopardy Clause in the Federal Constitution precluded any prosecution of Davis for possession of the cocaine found in his vehicle because forfeiture of the vehicle constituted a prior criminal punishment under Austin v. United States, 509 U.S. 602, 622 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993).

1998The Court of Appeals held that the Double Jeopardy Clause in the Federal Constitution precluded any prosecution of Davis for possession of the cocaine found in his vehicle because forfeiture of the vehicle constituted a prior criminal punishment under Austin v. United States, 509 U.S. 602, 622 , 113 S.Ct. 2801 , 125 L.Ed.2d 488 (1993).

1992The indispensable element test relies on neither timing nor conduct to determine preemption. *965 Instead, under this test, preemption depends on "`the nature of the injury for which [the] plaintiff makes [the] claim, not the nature of the defendant's act which the plaintiff alleges to have been responsible for that injury.'" Foley, 413 N.E.2d at 716 (quoting Gambrell, 562 S.W.2d at 168 ).

1992The indispensable element test relies on neither timing nor conduct to determine preemption. *965 Instead, under this test, preemption depends on "`the nature of the injury for which [the] plaintiff makes [the] claim, not the nature of the defendant's act which the plaintiff alleges to have been responsible for that injury.'" Foley, 413 N.E.2d at 716 (quoting Gambrell, 562 S.W.2d at 168 ).

1992The indispensable element test relies on neither timing nor conduct to determine preemption. *965 Instead, under this test, preemption depends on "`the nature of the injury for which [the] plaintiff makes [the] claim, not the nature of the defendant's act which the plaintiff alleges to have been responsible for that injury.'" Foley, 413 N.E.2d at 716 (quoting Gambrell, 562 S.W.2d at 168 ).

1992The indispensable element test relies on neither timing nor conduct to determine preemption. *965 Instead, under this test, preemption depends on "`the nature of the injury for which [the] plaintiff makes [the] claim, not the nature of the defendant's act which the plaintiff alleges to have been responsible for that injury.'" Foley, 413 N.E.2d at 716 (quoting Gambrell, 562 S.W.2d at 168 ).

1987Mannes-Vale, 717 P.2d at 710 n. 1.