Court hears dispute over lost trial transcript and new-trial order in Provo City appeal

Nick Muellstein, appearing for Provo City as appellant, told the panel the primary question is whether the trial court failed to account for statute-of-limitations tolling and whether the City preserved that argument. Muellstein said the chambers conference discussing a last-night motion was not recorded, which complicated the preservation record, but argued the tolling point had been raised in prior proceedings and preserved.

Defense counsel Neil Skalson told the court that the trial court’s decision to grant a new trial should be viewed through the rule of regularity and that Provo City did not make the Strand/tolling argument on the record before the judge who later granted a new trial. Skalson also emphasized the loss of most of the trial transcript (leaving only about 15 recorded minutes) and argued that the trial judge who heard the motion had discretion to grant a new trial under Rule 24(a) because the missing record prevented meaningful appellate review of preserved or colorable claims.

Much of the argument focused on whether the trial court granted a new trial under Strickland’s ineffective-assistance standard or under Rule 24(a)’s catchall authority when a party’s right to a fair trial is compromised. Appellant argued the record was sufficient to decide preserved issues and that the City had not pursued an interlocutory appeal when the order was entered; defense counsel countered that multiple personnel and judge changes, a missing transcript, and judge observations at trial supplied a proper basis for a new trial.

The panel pressed both sides on whether parties could or should have reconstructed the missing portions of the record with affidavits or counsel notes and on whether the appellant waived some arguments by failing to put them in the preservation section of its opening brief. The court took the matter under advisement and did not announce a decision at the hearing.