Gabriel v. SLC Corp.

Gabriel v. SLC Corp.

IN THE UTAH COURT OF APPEALS

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Frederick Gabriel and Elizabeth Isakian, as heirs of Arek Tamassian,

Plaintiffs and Appellants,

v.

Salt Lake City Corporation, Salt Lake City Police Department, John and Jane Does I-X, and XYZ Corporations I-X,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020733-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 59

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: David W. Parker, Sandy, for Appellants

Martha S. Stonebrook, Salt Lake City, for Appellees

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Before Judges Bench, Davis, and Jackson.

JACKSON, Judge:

Plaintiffs argue that the trial court erred in dismissing their wrongful death suit. The trial court ruled that Plaintiffs had failed to comply with the notice provisions of the Utah Governmental Immunity Act (the Governmental Immunity Act), as required by Utah Code Annotated section 63-30-11 (1997), and that this failure necessitated a dismissal of Plaintiffs' suit. We affirm.

At the time that Plaintiffs filed their suit, the Governmental Immunity Act provided that "[a] claim against a political subdivision . . . is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises." Id. § 63-30-13 (emphasis added). "Under existing statutory and case law there is no ambiguity to the term 'governing body.' The 'governing body' of Salt Lake City is the mayor and the city council." Bellonio v. Salt Lake City Corp., 911 P.2d 1294, 1296 (Utah Ct. App. 1996). "Utah law mandates strict compliance with the requirements of the Immunity Act." Greene v. Utah Transit Auth., 2001 UT 109,¶12, 37 P.3d 1156; see also Bellonio, 911 P.2d at 1297; Brittain v. State, 882 P.2d 666, 669 (Utah Ct. App. 1994). Here, Plaintiffs filed one notice of claim with the Attorney General of the State of Utah and directed another notice of claim to "Salt Lake City Corporation." By their own admission, Plaintiffs did not file a notice of claim with the mayor or the city council. "While defects in the form or content of notices of claim do not always act to bar a claim, courts have consistently barred claims in situations where either no notice or only one of the two required notices was filed." Brittain, 882 P.2d at 669.(1)

In spite of their admitted failure to comply with this notice requirement, Plaintiffs argue that Defendants waived the defense of improper service of process by failing to include this argument in their answer to the complaint. Plaintiffs further argue that, insofar as Defendants did substantively respond to the allegations contained in the complaint and then proceeded to defend against them at various stages of pretrial litigation, we should hold that Plaintiffs had actual notice of the claim and were not prejudiced thereby. Both of these arguments, however, are contrary to settled Utah authority. "The notice of claim provisions of the Governmental Immunity Act are jurisdictional. Although not raised in the court below, this issue determines our authority to address the merits of the case and may therefore be raised at any time." Thomas v. Lewis, 2001 UT 49,¶13, 26 P.3d 217; see also Rushton v. Salt Lake County, 1999 UT 36,¶18, 977 P.2d 1201 (holding that "[f]ailure to file such notice deprives the court of subject matter jurisdiction"). Further, "[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. . . . Compliance with the statute is the determining issue, not actual notice." Greene, 2001 UT 109 at ¶15.

Thus, we hold that Plaintiffs' failure to comply with the notice requirement of the Governmental Immunity Act warranted dismissal. We further hold that Defendants' actual notice of the claims and their participation in the pretrial litigation did not act as a waiver of the defense of improper service of process.(2)

Accordingly, we affirm.

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Norman H. Jackson, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

1. Plaintiffs' argument that the decision of this court in Brittain v. State, 882 P.2d 666 (Utah Ct. App. 1994), warrants a finding of compliance in this case is simply incorrect. In Brittain, we held that a plaintiff who had filed notice of claim with "both the attorney general and the Division of Risk Management" had complied with the notice of claim requirement. Id. at 668. However, our analysis of the notice of claim issue in that case was expressly predicated on the specific language of Utah Code Annotated section 63-30-12 (1993), a provision that set forth the notice of claim requirements for suit against the state or one of its employees. See id. at 669. In the present case, however, the state was not named as a defendant in the litigation; instead, suit was filed against Salt Lake City and several of its agencies. As discussed in Bellonio v. Salt Lake City Corp., 911 P.2d 1294 (Utah Ct. App. 1996), the Brittain analysis was applicable only to suits against the state or state employees and is inapposite to cases involving suits against a city or one of its agencies. See id. at 1297. Therefore, Brittain is not controlling here.

2. Plaintiffs further argue that dismissal was improper due to (1) the filing of an "Amended Notice of Claim," which purportedly cured the notice of claim defects of the original complaint; (2) the trial court's failure to hear arguments on the motion within thirty days prior to trial, as mandated by its own scheduling order; and (3) the trial court's failure to provide "any analysis" accompanying the Findings of Fact that are contained within the order of dismissal. However, Plaintiffs have failed to provide us with any citations to any statutes, rules, or cases in support of any of these arguments. Accordingly, we decline to address them on appeal. See Burns v. Summerhays, 927 P.2d 197, 198-200 (Utah Ct. App. 1996).