Nichol v. Salt Lake Co.

Nichol v. Salt Lake Co.

IN THE UTAH COURT OF APPEALS

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Susan L. Nichol,

Plaintiff and Appellant,

v.

Salt Lake County, West Valley City Corporation, Salt Lake City Corporation, Utah Department of Transportation, and the State of Utah,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020976-CA
 

F I L E D
(November 14, 2003)
 

2003 UT App 391

 

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Richard R. Burke, Salt Lake City, for Appellant

David E. Yocom, Jay L. Stone, and Melanie F. Mitchell, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Thorne.

PER CURIAM:

Susan L. Nichol appeals the dismissal of her complaint as to Salt Lake County.(1)

Salt Lake County obtained dismissal of Nichol's complaint for lack of subject matter jurisdiction because she served the notice of claim on the Salt Lake County Recorder, rather than the Salt Lake County Clerk, as required by provisions of the Utah Governmental Immunity Act (Immunity Act). See Utah Code Ann. § 63-30-11(3)(b)(ii)(B) (Supp. 2003) (requiring written notice of claim to be delivered to "the county clerk, when the claim is against a county"). Nichol concedes that the notice of claim was not directed to the Salt Lake County Clerk and that the governing case law requires strict compliance with the notice provisions of the Immunity Act. See Wheeler v. McPherson, 2002 UT 16,¶13, 40 P.3d 632; Greene v. Utah Transit Auth., 2001 UT 109,¶16, 37 P.3d 1156.

Despite the clear mandate of the case law, Nichol argues that "[w]ith due respect to the Wheeler and Greene decisions, it is unjust to deny Nichol's claim where the County had actual notice." Nichol requests the court to modify existing law and deem service upon the county recorder to be acceptable as substantial compliance with the Immunity Act. This court cannot modify case law announced by the Utah Supreme Court that is precedent for the exact issues raised by Nichol's appeal. The supreme court has rejected the identical substantial compliance argument raised by Nichol.

Following amendments in 1998, the Immunity Act "explicitly lists the individuals to whom the notice must be directed and delivered depending on the type of governmental entity involved." Greene, 2001 UT 109 at ¶13. The supreme court concluded in Greene that "[w]here . . . the statute is clear, readily available, and easily accessible by counsel, there is no reason to require anything less than strict compliance." Id. Furthermore, the court held that "[a]ctual notice of a claim by a governmental entity does not excuse a claimant's strict compliance with the requirements of the Immunity Act." Id. at ¶15. Finally, the court reiterated that strict compliance with the Immunity Act "is necessary to confer subject matter jurisdiction upon a trial court to hear claims against governmental entities." Id. at ¶16. In Wheeler, the supreme court again rejected arguments "to adopt a 'substantial compliance' interpretation of the Immunity Act's notice of claim requirement." Wheeler, 2002 UT 16 at ¶8. Noting that it had "consistently and uniformly" required strict compliance with the Immunity Act, the supreme court concluded that "[t]he notice of claim provision, particularly, neither contemplates nor allows for anything else." Id. at ¶13.

Nichol has demonstrated no basis on which we can distinguish this case from Wheeler and Greene, and this court cannot modify precedent from the Utah Supreme Court. The district court correctly dismissed the case based upon lack of subject matter jurisdiction due to Nichol's failure to comply with the notice requirements of the Immunity Act.

We affirm the dismissal of the complaint as to Salt Lake County, which is the remaining appellee in this appeal.

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Judith M. Billings,

Associate Presiding Judge

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. This court previously granted summary disposition motions filed by the State of Utah, Utah Department of Transportation, Salt Lake City Corporation, and West Valley City Corporation, and allowed this appeal to proceed to briefing as to only Salt Lake County. See Nichol v. West Valley City, 2003 UT App 178 (per curiam).