Fannen v. Lehi City

Fannen v. Lehi City

IN THE UTAH COURT OF APPEALS
 

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Charles Douglas Fannen,

Plaintiff and Appellant,

v.

Lehi City, et al.,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040723-CA
 

F I L E D
(June 30, 2005)
 

2005 UT App 301

 

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Fourth District, Provo Department, 020402370

The Honorable Fred D. Howard

Attorneys: Robert H. Copier, Salt Lake City, for Appellant

Michael F. Skolnick and Nan T. Bassett, Salt Lake City, for Appellees

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Before Judges Billings, Greenwood, and Jackson.

BILLINGS, Presiding Judge:

    Charles Douglas Fannen appeals the district court's denial of his Motion to Strike Defendants' Summary Judgment Motion and grant of summary judgment to Defendants. Specifically, Fannen argues that (1) the 180-day statute of limitations in Utah Code section 67-21-4(2) (Whistle Blower Act) is superseded by the Notice of Claims provision found in Utah Code sections 63-30d-402, -403 (Government Immunity Act), and (2) the district court engaged in impermissible fact-finding and applied the incorrect legal standard. See Utah Code Ann. §§ 67-21-4(2); 63-30d-402, -403 (2004). We affirm.

    "On an appeal from a grant of summary judgment, we review the trial court's legal conclusions for correctness and grant them no deference." Francisconi v. Union Pac. R.R. Co., 2001 UT App 350,¶8, 36 P.3d 999 (quotations and citation omitted). "[S]ummary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (alteration in original) (quotations and citation omitted).

    The Whistle Blower Act (WBA) gives "[a]n employee who alleges a violation of this chapter" a cause of action, but requires that the action be brought "within 180 days after the occurrence of the alleged violation." Utah Code Ann. § 67-21-4(2). Fannen argues that this statute of limitations is superseded by the language in the Government Immunity Act (GIA), which states, "[a] claim against a governmental entity" is barred "unless notice of claim is filed . . . within one year after the claim arises." Utah Code Ann. § 63-30d-402. We disagree.

    While the WBA creates a cause of action that must be brought within 180 days after the alleged occurrence, the GIA "does not itself serve as the basis for liability or any cause of action." Hall v. Department of Corr., 2001 UT 34,¶16, 24 P.3d 958. The GIA merely gives a deadline for which notice must be given that there is a claim against the State; it does not prohibit the legislature from imposing a shorter statutory filing date on a cause of action.

    Fannen filed his notice of claim (the Notice) on February 4, 2002. His last day at work, and subsequently the beginning date for the running of the statute of limitations, was June 20, 2001.(1) Because Fannen failed to file the Notice before the statutory period designated in the WBA, the district court properly dismissed his Whistle Blower claim.

    We also hold that the trial court properly granted summary judgment to Defendants on Fannen's intentional infliction of emotional distress, constructive termination, and defamation claims. First, in order to prove intentional infliction of emotional distress, Fannen must demonstrate that Defendants

intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where
any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards or decency and morality.

Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9,¶58, 70 P.3d 17 (quotations and citations omitted). The undisputed facts demonstrate that (1) Fannen could not identify who had put the antagonistic flyers in his mailbox; (2) his emotional problems stopped once he resigned; and (3) less than five months after his resignation, he took a psychological evaluation for a position with the Alpine/Highland Police Department and failed to mention that he was suffering from emotional distress. Thus, the district court properly dismissed Fannen's claim for intentional infliction of emotional distress.

    Second, Fannen argues that he was constructively terminated. Fannen admits in his complaint that he was asked to resign because of the incident in Colorado where he flashed his badge (and possibly his gun) at truckers while he was on vacation with his family. Because that was a legitimate reason to ask for his resignation, we need not address his constructive termination claim.

    Third, Fannen argues that the district court improperly dismissed his defamation claim. To constitute slander per se, the words must "fall into one of four categories: (1) charge of criminal conduct, (2) charge of loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office; and (4) charge of the unchastity of a woman." Allred v. Cook, 590 P.2d 318, 320 (Utah 1979). Further, "it is necessary to show that as a consequence of those words, [the] plaintiff has suffered actual harm." Id. at 322. Fannen admitted in his deposition that he did not suffer any harm. Specifically, Fannen stated that he had a good reputation as a police officer, and that while he believes that Defendants attempted to ruin that reputation, they did not succeed in doing so. Therefore, the district court properly
granted summary judgement on Fannen's defamation claim. Accordingly, we affirm.(2)

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. Fannen argues that his actual resignation date was September 30. However, because he did not respond to Defendants' Summary Judgment Motion, the district court properly deemed the facts set forth in Defendants' motion admitted for purposes of summary judgment. See Utah R. Civ. P. 7(c)(3)(A) ("Each fact set forth in the moving party's memorandum is deemed admitted for the purpose of summary judgment unless controverted by the responding party.").

2. Fannen is not entitled to attorney fees since his Whistle Blower claim was dismissed. Also, he is not entitled to punitive damages, because his remaining claims were dismissed.