Slavens v. Millard County et al, No. 2:2011cv00568 - Document 114 (D. Utah 2013)

Court Description: PARTIAL MEMORANDUM DECISION and ORDER granting 86 Motion for Judgment on the Pleadings as to James Slavens Estates (Estate) Utah Open and Public Meetings Act (UOPMA) claims and dismisses those portions of the Estates Complaint because they do not survive James Slavens death. Signed by Magistrate Judge Evelyn J. Furse on 09/11/2013. (asp)
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION MELANIE SLAVENS, as Special Administrator of the Estate of JAMES SLAVENS, Plaintiff, v. PARTIAL MEMORANDUM DECISION AND ORDER (ECF No. 86) Case No. 2:11CV00568 Magistrate Judge Evelyn J. Furse MILLARD COUNTY, et al, Defendants. The Court grants Millard County, Richard Waddingham, Daron Smith, Bart Whatcott, and Craig Greathouse s (collectively Millard County) Motion for Judgment on the Pleadings as to James Slavens Estate s (Estate) Utah Open and Public Meetings Act ( UOPMA ) claims1 and dismisses those portions of the Estate s Complaint because they do not survive James Slavens death. Mr. Slavens brought this case in June of 2011, including a claim under UOPMA. Mr. Slavens died in December of 2012, prior to resolution of the UOPMA claims. In April 2013, the Court substituted Melanie A. Slavens for Mr. Slavens as Special Administrator of his Estate. In August 2013, the Court allowed the Estate to amend the Complaint. In doing so, the Estate made claims for violation of UOPMA based on improper notice and an improper closed session. 1 The Court will rule on the remaining portions of the Motion for Judgment on the pleadings as set forth in Court on September 9, 2013 by separate order. Millard County moved for judgment on the pleadings claiming, among other things, that the UOPMA claims did not survive Mr. Slavens death. (ECF No. 86 at 14.) Under Utah common law, contract claims survive death. Estate of Berkemier v. Harford Ins. Co., 2003 UT App 78, ¶ 13, 67 P.3d 1012. By statute, Utah has provided for personal injury claims to survive death. Utah Code § 78B-3-107(1)(a). The personal injury the statute allows to survive include claims for physical or mental injury not for injury to rights, reputation or property. Allred v.. Solaray, Inc., 971 F. Supp. 1394, 1397-98 (D. Utah 1997). No statute addresses the survivability of claims under UOPMA. At common law survivable actions are those in which the wrong complained of affects primarily property and property rights, and in which any injury to the person is incidental, while nonsurvivable actions are those in which the injury complained of is to the person and any effect on property or property rights is incidental. 1 Am. Jur. 2d Abatement, Survival, and Revival § 51 (2013). Generally, purely personal torts do not survive in the absence of statutory provision. Id. Thus, barring statutory language that provides for their survival, non-property claims cannot survive death. UOPMA section 52-4-303 provides for private rights of action for violations of the Act. UPOMA section 52-4-304 provides that in the case of a successful section 54-4-303 action regarding closed sessions, the judge shall publicly disclose or reveal from the recording or minutes of the closed meeting all information about the portion of the meeting that was illegally closed. Utah Code Ann. § 52-4-304. Alternatively, in cases of successful UOPMA claims regarding other violations of the Act, the Court can determine and order compliance with the statute. Utah Code Ann. § 52-4-303. UOPMA claims do not resemble either contract claims or property claims as described above; nor do they fall under the survival statute as they do not constitute personal injury claims. The Court therefore GRANTS Millard County s Motion for Judgment on the Pleadings as to the Estate s UOPMA claims, dismissing those claims. DATED this 11th day of September, 2013. BY THE COURT: _______________________________ Evelyn J. Furse United States Magistrate Judge