Bio

PAUL W. MORTENSEN

During his 39-year career, Paul W. Mortensen has practiced before Utah’s district, juvenile and justice courts; the Utah Court of Appeals; the Utah Supreme Court; the United States Federal Court for the District of Utah; the Tenth Circuit Court of Appeals; and the United States Supreme Court.

Mr. Mortensen is a graduate of the University of Utah S. J. Quinney College of Law and was admitted to the Bar in 1977. Then only twenty-four years old, Mr. Mortensen founded his own general law practice in Moab, Utah, representing clients in civil and criminal litigation; mining and oil and gas matters; real estate and business transactions; and family law.

During the 1980s (in addition to maintaining his private practice), Mr. Mortensen served as Moab City Attorney, handling civil matters and criminal prosecutions for the city. After ending his service to the city, Mr. Mortensen served as Grand County public defender while maintaining his private practice through the end of the 1980s.

In December 1990 Mr. Mortensen received his MBA degree from the Thunderbird Graduate School of Global Management, emphasizing accounting and finance. During the 1990s, Mr. Mortensen continued his law practice with offices in Bountiful and Moab, with substantial portions of his practice centering on family law, real estate litigation, and business litigation.

In 1999 Mr. Mortensen became legal counsel to Utah Shared Access Alliance (USA-ALL), representing USA-ALL in state and federal court through most of the 2000s; particularly regarding federal agency (DOI, BLM, USDA Forest Service) litigations and appeals. During approximately the same period and beyond, Mr. Mortensen also represented a 1500-lot mountain subdivision HOA, while maintaining his family law and civil and criminal litigation practices. Besides litigating real estate access issues (including easements and rights-of-way under common law and state and federal statutes) and other real estate issues (quiet title, boundary by acquiescence), Mr. Mortensen has lectured and presented at state bar and federal bar seminars.

Mr. Mortensen’s practice has also included complex business litigation (including derivative and direct shareholder litigation, business judgment rule litigation) as well as civil rights cases, divorce cases, child custody cases, termination of parental rights cases, personal injury cases, medical malpractice cases and administrative appeals.

Between approximately 2005 and 2016, Mr. Mortensen was a principal with Hanks & Mortensen, P.C. (now Hanks & Peterson, P.C.). In 2016 Mr. Mortensen established Mortensen Law Firm PLLC, where he currently practices.

EDUCATION

  • B.S. Mass Communications (Journalism), University of Utah 1974
  • Juris Doctorate, S.J. Quinney College of Law, University of Utah 1977
  • M.B.A., Thunderbird Graduate School of International Management 1990

SERVICE

  • Former Moab City Attorney
  • Former Grand County public defender, misdemeanors through noncapital homicides
  • Board member of several nonprofits
  • Eight-year volunteer instructor of inmates at Salt Lake County Metro jail
  • Certificate of Appreciation Recipient
  • Pro bono right-of-way litigation for rescue mission
  • Presenter and lecturer at access/easement seminars

OTHER

  • Admitted to practice in Arizona (1989)
  • Author, “The European company: Can it be realized,” The International Executive May/Jun 1991 Author, two screen plays
  • Passed all sections of the 1991 Certified Public Accountant examination, but did not further certify as a CPA
  • Owner, 1966 Chevelle: 355 c.i.d., Holley 650 double pumper carb, long tube headers, Munsey four speed, wicked pipes, marina blue exterior, black interior

SELECTED CASES

Family Law Cases

In re G.J.C., ___ P.3d ___, 2016 UT App 147. Representing the mother, Mr. Mortensen filed a petition to terminate the parental rights of the father, who had kidnapped the mother’s parents at gunpoint while wrongly withholding the child from the mother (among other appalling actions). The juvenile court judge denied the mother’s petition to terminate the father’s parental rights and Mr. Mortensen filed an appeal for the mother. Mr. Mortensen successfully showed the Court of Appeals that the juvenile court judge’s ruling was against the clear weight of the overwhelming evidence that Mr. Mortensen had introduced at trial. The Court of Appeals reversed the juvenile court judge’s order and ordered the juvenile court judge to enter an order terminating the father’s parental rights.

Johnson v. Johnson, UT App, unpublished ruling, No. 981484-CA, July 1, 1999. Mr. Mortensen successfully obtained a Court of Appeals ruling upholding all of the trial court’s orders favoring Mr. Mortensen’s client (wife) in a highly contested divorce action. Mr. Mortensen further succeeded in having the Court of Appeals reverse a contempt order against his client and in obtaining an award of attorney’s fees for his client. At the district court level in this case, Mr. Mortensen twice persuaded the court to jail the husband for deliberately refusing to pay alimony and child support as ordered.

R__ v. R__, Third District Court, 2012. In a highly contested divorce action, the wife had taken the children to another state. Mr. Mortensen successfully persuaded the court to order the wife to return the children to the State of Utah and obtained a favorable joint custody arrangement for his client (the husband), with the husband’s child support obligation adjusted accordingly. Mr. Mortensen also persuaded the judge to limit the husband’s alimony obligation far below the amount demanded by the wife.

In re ___ and ___, Seventh District Juvenile Court, 1980. Two girls, aged ten and fourteen, were being sexually abused by their stepfather. This was in the days before out-of-court video questioning when direct testimony in court by child victims was necessary. The girls’ mother, knowing of the sexual abuse, strongly pressured the girls to not testify against their stepfather. Mr. Mortensen was appointed guardian ad litem for the girls in the juvenile court protective action. At hearing, Mr. Mortensen carefully and sensitively questioned the ten-year-old. The girl tearfully opened up and acknowledged that she and her sister had been sexually abused by their stepfather. The judge ordered the girls removed from their abusive home.

Access and Right-of-way Easement Cases

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004). This case went to the United States Supreme Court. Mr. Mortensen’s intervenor clients and the federal agency prevailed in a decision by Justice Scalia. The court unanimously ruled that environmental advocacy groups cannot use 5 U.S.C. § 706(1), the mandamus section of the federal Administrative Procedures Act, to force federal government administrators to close motorized routes on federal lands.

Hogs R Us v. Town of Fairfield, 207 P.3d 1221, 2009 UT 21. Representing an amicus party, Mr. Mortensen persuaded the Utah Supreme Court to recognize that there likely is a common law mandatory duty for a governmental entity to open a completely obstructed public road under its jurisdiction.

Miller v. San Juan County, 186 P.3d 965, 2008 UT App 186. Mr. Mortensen successfully blocked an attempt by a landowner to close a popular route used by the Red Rock 4-Wheelers during the annual (Moab) Jeep Safari. The landowners had purchased part of a state school section over which a rough road had existed for decades. Representing the Red Rock 4-Wheelers, Mr. Mortensen successfully used the State Rights-of-Way Across State Lands Act, Utah Code § 72-5-201 et seq., and decades of evidence to persuade the trial court to rule in favor of the Red Rock 4-Wheelers. The trial court declared that, before January 1, 1992 (the trigger date under the Act), the Red Rock 4-Wheelers had acquired a right-of-way use over the school section.

Utah Environmental Council v. U.S. Forest Service, et al., 2:01-cv-390, United States District Court, Utah. Representing intervenor Fillmore ATV Jamboree, Mr. Mortensen (together with U.S. Attorneys representing the Forest Service) successfully blocked an Environmental advocacy groups’ attempt to shut down the annual Fillmore ATV Jamboree.

Utah Shared Access Alliance v. Carpenter, ___ U.S. ___, 127 S.Ct. 2100, 167 L.Ed.2d (2007). Mr. Mortensen failed to convince the United States Supreme Court to review the Tenth Circuit’s ruling at 463 F.3d 1125. The Tenth Circuit had rejected Mr. Mortensen’s argument that the Department of Interior must follow the public participation provisions of the Federal Land Policy and Management Act (FLPMA) and of the National Environmental Policy Act (NEPA) when undertaking, under claim of emergency, to close roads and motorized recreation areas on federal lands for unlimited periods of time.

Personal Injury and Tort Cases

Phillips v. JCM Development Corp., 666 P.2d 867 (Utah Supreme Court 1983). Mr. Mortensen represented a client who had been ripped off in a real estate and business asset sale transaction. Mr. Mortensen advised the client sue his national real estate brokerage firm for malpractice and breaches of fiduciary duty. Mr. Mortensen successfully obtained a large judgment against the real estate broker and collected the judgment. This case was the first Utah ruling to establish that the relationship between a real estate broker and her agent is employer–employee, with attendant vicarious liability.

Acculog v. Peterson, 692 P.2d 728 (Utah Supreme Court 1984). A service garage installed a new fuel filter on a four-wheel drive van carrying tens of thousands of dollars of uranium logging equipment. Shortly thereafter, the van’s engine caught fire, destroying the van and equipment and also causing the van’s owner to lose tens of thousands of dollars of logging contract commitments. Representing the logging van owner, Mr. Mortensen (via an expert witness) proved the garage failed to install a gasket on the fuel filter. Mr. Mortensen also provided proof of the lost values of the van, contents and logging contracts. Based on erroneous rulings by the trial judge, the jury ruled against Mr. Mortensen’s client. However, based on Mr. Mortensen’s arguments on appeal, the Utah Supreme Court overruled the trial judge and ordered a new trial. The court stated that Mr. Mortensen had “meticulously documented” his proof of damages values. The garage owner’s insurance company promptly settled the case.

In a mining community several men were constructing a large centrifugal force-based machine. In a test run, the machine seized up and rocked back onto one of the men, crushing the man to death. Despite the deceased man’s personal involvement in constructing the machine, Mr. Mortensen obtained a substantial personal injury/wrongful death settlement for the widow and children.

A teenager was trespassing on a company’s property apparently intending to steal a large truck. The company’s supervisor ran out of the building with a handgun. When the teenager jumped out of the truck and fled, the supervisor shot the fleeing teenager. Mr. Mortensen obtained a personal injury settlement for the teenager from the supervisor’s company.

Criminal Cases

State v. Lamorie, 610 P.2d 342 (Utah Supreme Court 1980). Early in his career Mr. Mortensen was appointed by the court to represent the defendant. At trial the judge admitted certain evidence over Mr. Mortensen’s objection and the defendant was convicted. On appeal, Mr. Mortensen showed the Supreme Court that the trial court had erred in admitting the evidence. The Supreme Court reversed the verdict and ordered a new trial, which resulted in Mr. Mortensen’s client being cut loose for time served.

State v. Moore, 782 P.2d 497 (Utah Supreme Court 1989). Mr. Mortensen’s client was clearly guilty of having sold a controlled substance within 1,000 feet of a church or school in a small town. Mr. Mortensen argued that the 1,000-foot penalty enhancement was arbitrary as to defendants in small towns because there simply was no location in the town that was not within 1,000 feet of a church or a school. The Supreme Court disagreed with Mr. Mortensen, left the felony enhancement in the statute, and upheld the defendant’s enhanced sentence.

State v. J.D.W., 910 P.2d 1242 (UT App 1995). Mr. Mortensen represented a juvenile who had gone to the Layton Hills Mall to purchase legitimate goods. Inside the mall (and within 1,000 feet of a school (see State v. Moore above)), an undercover agent of the local drug task force approached the juvenile and offered to sell marijuana to the juvenile. The juvenile purchased a small amount of marijuana from the agent. The juvenile court found that the juvenile had illegally possessed marijuana. Despite Mr. Mortensen’s arguments that the agent’s conduct should constitute entrapment, the Court of Appeals ruled that the juvenile had not been entrapped. Newspaper editorials and talk radio personalities lambasted the decision and the conduct of the undercover agent.

State of Utah v. Richardson, Seventh District Court, 1989. In a criminal action, Mr. Mortensen successfully defended a grandfather accused of sexual abuse by a grandson. Despite the prosecution’s use of highly-prejudicial evidence that would be barred by a Utah Supreme Court decision a few weeks following the trial, Mr. Mortensen obtained a hung-jury verdict. The State declined to further prosecute the grandfather.

Business Cases

For his client, an insurance company that had financed a helicopter service’s unpaid premiums, Mr. Mortensen replevined a helicopter that turned out to be disassembled for a required overhaul. His client ever-so-carefully carried the turbine out of the hanger (besides removing the remainder of the helicopter).

Mr. Mortensen obtained a judgment against a coal mining company for failure to pay for his client’s heavy equipment services. For his client, Mr. Mortensen executed on a continuous mining machine, with his client purchasing the machine at sheriff sale for only $100 of his judgment amount. The company found out their machine had been sold for the small amount and threatened to sue to set aside the sale. Mr. Mortensen negotiated an agreement for the company to pay his client the full judgment amount plus a large premium in consideration of Mr. Mortensen’s client tendering back the machine to the company.

Mr. Mortensen brought a derivative action and a direct action for his client regarding a Utah corporation, suing Canadian officers of a parent Canadian company. The Canadian officers asserted that the Utah court did not have jurisdiction over them. Mr. Mortensen carefully researched Utah state corporation records and found a document signed and filed by the Canadian officers. Relying on the record found by Mr. Mortensen, the court ruled that it had jurisdiction over the Canadian officers. The case immediately settled.