Jackson v. Hanson

Jackson v. Hanson

IN THE UTAH COURT OF APPEALS
 

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Lawrence M. Jackson,

Plaintiff and Appellant,

v.

The Honorable Timothy R. Hanson,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040535-CA
 

F I L E D
(November 12, 2004)
 

2004 UT App 415

 

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Second District, Farmington Department

The Honorable Rodney S. Page

Attorneys: Lawrence M. Jackson, Gunnison, Appellant Pro Se

Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

    Lawrence M. Jackson appeals a summary judgment on his complaint filed pursuant to Utah Code section 78-35-1 seeking statutory damages against Judge Timothy R. Hanson. See Utah Code Ann. § 78-35-1 (2002).

    An action under section 78-35-1 is subject to the provisions of the Utah Governmental Immunity Act, see Utah Code §§ 63-30-1 to -38 (1997 & Supp. 2003). See Thomas v. Lewis, 2001 UT 49,¶15, 26 P.3d 217 ("Section 78-35-1 clearly provides a claim or cause of action for money, and . . . judges are governmental 'employees' for the purposes of the Immunity Act."); see also Straley v. Halliday, 2000 UT App 38,¶14, 997 P.2d 338. "The notice of claim provisions of the Governmental Immunity Act are jurisdictional" and resolution of the jurisdictional issue determines a court's "authority to address the merits of the case." Thomas, 2001 UT 49 at ¶13. A claim against an employee of the State of Utah "is barred unless notice of claim is filed with the attorney general within one year after the claim arises." Utah Code Ann. § 63-30-12 (Supp. 2003).

    It is undisputed that the claim arose on January 23, 2002, when Judge Hanson denied Jackson's petition for post-conviction relief. The complaint in the present case was filed on August 4, 2003, along with a "Notice of Intent to Commence Legal Action," signed and dated July 13, 2003, and a mailing certificate bearing the same date. Accordingly, the district court found that "the notice of claim which gives rise to this action was not filed until, at the earliest, July 13, 2002," more than one year after the claim arose. On that basis, the district court concluded that the July 13, 2003 notice of claim was filed well past the statutory time limit and the action was therefore barred.

    Jackson contends that a "Notice of Intent to Commence Legal Action" filed with the court in connection with an earlier complaint in May of 2002 satisfied the notice of claim provision for purposes of his later complaint.(1) The district court rejected this argument because that action was dismissed and the purported notice of claim was not signed and dated by Jackson. Jackson argues on appeal that there is a genuine issue of fact about whether that notice of claim was actually signed and dated. However, the copy of the notice submitted to the district court in this case and made a part of the trial court record was not signed and dated. In his response to this court's sua sponte motion, Jackson attached a copy of a Notice of Intent to Commence Legal Action that is purportedly signed and dated May 27, 2002. This document differs in capitalization, format and phrasing from the copy introduced into the district court's record by Jackson and relied upon by the district court in its decision. Jackson's misrepresentation of the district court record does not create a genuine issue of fact precluding summary judgment. The purported notice of claim filed in May of 2002 fails to meet the requirements of Utah Code section 63-30-11(3), which include a requirement that it be signed.

    Jackson's remaining arguments can be summarized as an assertion that the failure to sign a notice of claim is not fatal and a related assertion that the Utah Attorney General must demonstrate that it did not receive actual notice, even if the notice of claim was technically defective. Both arguments are without merit based upon case law consistently requiring strict compliance with the notice of claim provisions of the Utah Governmental Immunity Act. See Wheeler v. McPherson, 2002 UT 16, ¶11, 40 P.2d 632 ("We have consistently and uniformly held that suit may not be brought against the state or its subdivisions unless the requirements of the Governmental Immunity Act are strictly followed."); Rushton v. Salt Lake County, 1999 UT 36,¶19, 977 P.2d 1201 (stating actual notice does not cure a failure to meet the requirements of the notice of claim provisions).

    Failure to file a timely notice of claim deprived the district court of subject matter jurisdiction, and the court did not err in granting summary judgment dismissing the complaint with prejudice. Because we affirm the district court's judgment on jurisdictional grounds, we do not consider the remaining arguments advanced by Judge Hanson.

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

______________________________

Gregory K. Orme, Judge

1. An earlier complaint based upon Utah Code section 78-35-1, filed in late May of 2002, was dismissed without prejudice for failure to pay the filing fee. See Utah Code Ann. § 78-35-1 (2002).