Banford v. Quinley

Joanna Banford; and Amber Banford, a minor,
by and through her parent and natural guardian, Joanna Banford,
Plaintiff and Appellants,

v.

David Quinley, an individual; Kaysville City Corp., a Utah political subdivision;
and Kaysville City Police Department,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980300-CA

F I L E D
June 10, 1999
  1999 UT App 185 -----

Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
Leonard E. McGee, Damian Davenport, William R. Hadley, and Gordon K. Jensen, Salt Lake City, for Appellants
Harry H. Souvall, Salt Lake City, for Appellees

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Before Judges Greenwood, Davis, and Jackson.

JACKSON, Judge:

We conclude that the "notice of claim"(1) in this case was not filed with Kaysville's "governing body," as required by Utah Code Ann. § 63-30-13 (1997).(2) Larson v. Park City Municipal Corp., 955 P.2d 343 (Utah 1998), establishes that the definition of "governing body" is imported from the Utah Municipal Code. See Utah Code Ann. §§ 10-1-101 to 10-15-6 (1996). Utah Code Ann. § 10-3-105 (1996) states that "[t]he governing body of cities of the third class [such as Kaysville] shall be a council composed of six members one of whom shall be the mayor and the remaining five shall be councilmen."

Larson also involved a city of the third class, Park City. See Larson, 955 P.2d at 345 n.6. The plaintiff there had filed her notice of claim with Park City's recorder, relying on Utah Rule of Civil Procedure 4(e), which states that personal service of a summons and/or complaint upon an incorporated city should be delivered to the city recorder. See id. at 343. Park City argued that serving a notice of claim upon the city recorder, as opposed to the mayor and city council, does not strictly comply with the Governmental Immunity Act. See id. at 344. The supreme court agreed that the Act requires strict compliance and that the mayor and city council are the "governing body" of Park City. See id. at 345. However, based on a review of the city recorder's duties and responsibilities set forth in the Utah Municipal Code, the court concluded that "the city recorder has such a significant relationship with the city council that one would be justified in filing notice of claim with the recorder." Id. at 346.

Here, Banford argues that the city finance director has a similarly "significant relationship" with the city council. Thus, she asserts that she was justified in filing her notice of claim with the finance director. She bases this on the following code section: The governing body of third class cities may . . . create a director of finance position to perform the financial duties and responsibilities of the city recorder in third class cities . . . . The director of finance shall be a qualified person appointed and removed with the advice and consent of the governing body . . . . Utah Code Ann. § 10-6-157 (1996) (emphasis added).

In Larson, the supreme court lists the statutory characteristics of the city recorder's position that it found persuasive in concluding that a "significant relationship" exists between the city recorder and the city council: [T]he city recorder is appointed by the mayor with the advice and consent of the city council. Utah Code Ann. § 10-3-916. The city recorder is required to be located at the place of the city council or somewhere convenient thereto. Id. § 10-6-137. The city recorder is required to attend the meetings of the governing body and keep a record of the proceedings. Id. The journal of the proceedings of the governing body is kept at the office of the city recorder. Id. § 10-3-603. All ordinances must be deposited in the office of the city recorder before they take effect. Id. § 10-3-711. Where a special meeting is required of the governing body, it is the responsibility of the city recorder to give notice to each member of the council personally or by leaving it at the member's place of abode. Id. § 10-3-502. Petitions for annexation, objections to those petitions, and amendments to those petitions are required to be filed with the city recorder. Id. § 10-2-403 (Supp. 1997). And when a lawsuit is filed against a city, the city entity is served by leaving a copy of the summons and complaint with the city recorder. Utah R. Civ. P. 4. Larson, 955 P.2d at 346. This list does not include any of the financial duties and responsibilities of the city recorder found in the code. See Utah Code Ann. §§ 10-3-916 (1996) (stating city recorder is city auditor), 10-6-139 (bookkeeping), 10-6-140 (paying claims), 10-6-148 (financial reports), 10-6-150 (same).

According to the supreme court, the financial duties and responsibilities were not the characteristics of the city recorder's job that imbued it with a "significant relationship" to the city council. Yet, those duties and responsibilities are the only city recorder functions assumed by the finance director. The sole characteristic on the list that also applies to the finance director is appointment with the advice and consent of the city council. This alone would not appear to be enough to create the significant relationship spoken of in Larson. If it were, then the city treasurer and bail commissioner, for instance, would also be eligible to receive notices of claim on behalf of the city's governing body. See Utah Code Ann. §§ 10-3-916, 10-3-920 (1996).

The key thing to remember in this analysis is not the duties of a specific position, but that position's relationship to the mayor and city council. For example, the finance director may draw and sign warrants to pay claims against the city. See id. § 10-6-140. It may thus seem logical that the finance director receive notice. However, one's ability to litigate, settle, or pay claims for a political subdivision is not the touchstone. The inquiry is: Has the notice of claim been filed with the "governing body"--i.e., the mayor and city council--or with someone boasting a "significant relationship" to the governing body?

In the Bellonio case, for example, the city attorney received a notice of claim. SeeBellonio v. Salt Lake City Corp., 911 P.2d 1294, (Utah Ct. App. 1996). Nevertheless, this court rejected the notion that the city attorney could validly accept the notice on behalf of the city's governing body.(3) See id. at 1298. This was so even though the city attorney would be the one litigating the claim for the city. See id.

Accordingly, we conclude that Banford did not strictly comply with the governmental immunity statute because she did not serve her notice of claim upon Kaysville's governing body or someone with a significant relationship to the governing body.

Because our analysis of this issue disposes of this appeal, we need not address Banford's other arguments.

Affirmed.
 
 
 

______________________________
Norman H. Jackson, Judge

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WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge

1. There is some argument as to whether the November 16, 1995 letter from Banford's attorney to the finance director rises to the level of a notice of claim. For purposes of our analysis, we assume without deciding that the letter was a proper notice of claim.

2. We note that the statute at issue here has since been amended to clarify to whom a notice of claim should be directed. As of May 4, 1998, a notice of claim is to be "directed and delivered to . . . the city or town recorder, when the claim is against an incorporated city or town." Utah Code Ann. § 63-30-11(3)(b)(ii) (A) (Supp. 1998). Thus, the definition of "governing body" we deal with here is no longer part of the notice-of-claim analysis. 3. Similar to this case in which the finance director asked Banford to use him as the city's contact person, in Bellonio, counsel for the airport had asked the plaintiff to address future correspondence to his office. See Bellonio v. Salt Lake City Corp., 911 P.2d 1294, 1295 (Utah Ct. App. 1996). The Bellonio court concluded that this request did not change its analysis that serving the notice of claim upon the airport's attorney did not strictly comply with the governmental immunity statute. See id. at 1298. After all, just as in this case, the attorney in Bellonio had "never indicated, either expressly or impliedly, that he was the proper agent to receive the statutorily mandated notice of claim, nor did [the plaintiff] request from him any information regarding Governmental Immunity Act compliance." Id.