Plaskon v. Dearden

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Mark Plaskon,
Plaintiff and Appellant,

v.

Craig Dearden, et al.,
Defendant and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000066-CA

F I L E D
March 29, 2001 2001 UT App 101 -----

Third District, Salt Lake Department
The Honorable Tyrone E. Medley

Attorneys:
John T. Caine, Ogden, for Appellant
Mark L. Shurtleff and Nancy L. Kemp, Salt Lake City, for Appellees

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Before Judges Greenwood, Billings, and Thorne.

BILLINGS, Judge:

Mark Plaskon (Plaintiff) appeals the trial court's order granting Craig Dearden, Robert Brinkman, and the State of Utah's (Defendants) motion to dismiss pursuant to Rule 12(b)(6) of the Utah Rules of Civil Procedure.

Defendants assert, among other things, that Plaintiff's claims are barred under the Utah Governmental Immunity Act (Immunity Act), Utah Code Ann. §§ 63-30-1 to -38 (1997 & Supp. 2000), for failure to give written notice of the claims.

Section 63-30-11(2) of the Immunity Act requires any person with a claim for injury against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, within the scope of employment, or under color of authority shall file a written notice of claim with the entity before maintaining an action, regardless of whether or not the function giving rise to the claim is characterized as governmental. Utah Code Ann. § 63-30-11(2) (Supp. 2000). Additionally, notice of the claim must be filed with the attorney general and agency concerned within one year after the claim arises. See Utah Code Ann. § 63-30-12 (1997).(1)

It is undisputed that Plaintiff's claims are against a governmental entity, the State, and employees of a governmental entity, Craig Dearden, Commissioner of the Utah Department of Public Safety, and Robert Brinkman, Bureau Chief of the Crime Laboratory in the Department of Public Safety, who were acting within the scope of their employment.

The suit that provides the basis for this appeal was filed February 1, 1998. Plaintiff alleges in his complaint, amended complaint, and second amended complaint that the notice required by the Immunity Act was filed June 26, 1997. However, there is no evidence of such notice in the record. "An appellate court's review is . . . limited to the evidence contained in the record on appeal." State v. Pliego, 1999 UT 8,¶7, 974 P.2d 279. "We have consistently required strict compliance with the Immunity Act." Rushton v. Salt Lake County, 1999 UT 36,¶19, 977 P.2d 1201 (citation omitted). Failure to file the notice required by the Immunity Act "deprives the court of subject matter jurisdiction." Id. at ¶18.

Because there is no evidence in the record that Plaintiff complied with the requirements of the Immunity Act by filing notice of his claims with both the agency concerned and the attorney general, we must hold that the court is without subject matter jurisdiction over Plaintiff's claims.(2)

Accordingly, we affirm.(3)
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. Pursuant to a 1998 amendment, this section no longer requires notice to the "agency concerned." However, all relevant events in the instant case occurred before the effective date of the amendment, May 4, 1998, thus the statutory requirements prior to amendment govern.

2. Defendants correctly point out that "we may affirm the judgment on any ground, even one not relied upon by the trial court." White v. Deseelhorst, 879 P.2d 1371, 1376 (Utah 1994) (citations omitted).

3. In light of our decision, we do not reach the other issues raised on appeal.