Zemlicka v. West Jordan City , 438 P.3d 1036 ( 2019 )

2019 UT App 22THE UTAH COURT OF APPEALS
NORMA ZEMLICKA,
Appellant,
v.
WEST JORDAN CITY,
Appellee.
Opinion
No. 20170136-CA
Filed February 7, 2019
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 160901181
Rodger M. Burge, Matthew J. Ball, and
Terry E. Welch, Attorneys for Appellant
Matthew David Church and Terry M. Plant,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred. JUDGE JILL
M. POHLMAN dissented.
ORME, Judge:
¶1 Norma Zemlicka appeals the district court’s dismissal of
her complaint against West Jordan City for failure to file a timely
undertaking under a prior version of section 601 of the Utah
Governmental Immunity Act (UGIA). We reverse.
INTRODUCTION
¶2 At the time Zemlicka filed her complaint against West
Jordan City, section 601, since amended so as to avoid the
problem presented by this case, required that “[a]t the time the
action is filed, the plaintiff shall file an undertaking in a sum fixed
Zemlicka v. West Jordan City
by the court that is . . . not less than $300.” Utah Code Ann.
§ 63G-7-601(2) (LexisNexis 2016) (emphasis added). But this
requirement is logistically impossible because the district court is
tasked with fixing the amount of an undertaking in an action
prior to the filing of the complaint that commences the action,
which is the only way an undertaking in an amount fixed by the
court could be filed at the same time that the complaint is filed.
Yet experience suggests that district courts will not enter orders
in connection with cases that have not yet been filed because the
filing of the complaint is the mechanism by which an action is
commenced and a judge is assigned. In effect, the
now­superseded version of section 601 put the cart before the
horse, requiring the court to fix the amount of an undertaking in
an action before that action had even been filed.
¶3 Utah’s federal courts apparently recognized this problem
and set about to work around it through the adoption of a local
rule that obviated the need for individualized judicial action in
each case by fixing a standard amount for such undertakings
and requiring plaintiffs, at the time the complaint is filed, to file
a $300 bond with the clerk of the court. See DUCivR 67-1(c). And
in 2017, the Utah Legislature apparently perceived the problem
created by the prior version of the statute and amended section
601 along the lines of the local federal rule. Section 601 now
provides: “At the time the action is filed, the plaintiff shall file an
undertaking . . . in the amount of $300, unless otherwise ordered
by the court.” 1 Utah Code Ann. § 63G-7-601(2) (LexisNexis Supp.
1. Although the Legislature recently amended the language of
the statute at issue, the new statutory language does not guide
our interpretation of the prior version of section 601. The
statutory language at issue in the case before us is unambiguous,
and “we seek guidance from the legislative history and relevant
policy considerations only if the statutory language is
ambiguous or unclear.” Harvey v. Cedar Hills City, 2010 UT 12,
¶ 15, 227 P.3d 256 (quotation simplified). Nonetheless, the
amendment reflects the Legislature’s realization that the prior
(continued…)
20170136-CA 2 2019 UT App 22Zemlicka v. West Jordan City
2017). The 2017 amendment resolves the logistical impossibility
created by the prior statute, more fully discussed below, and
obviates the problem presented by this case in future actions
brought against government entities.
BACKGROUND
¶4 On March 10, 2014, Zemlicka was driving in West Jordan
City when the poorly lit street on which she was driving
abruptly ended with a dirt ramp. 2 As a result, her car was
thrown into the air, and she was seriously injured. On February
18, 2016, having previously complied with the pre-suit notice
requirements of UGIA, Zemlicka filed a complaint against West
Jordan City for negligence. On March 14, 2016, the district court
notified Zemlicka that a $300 undertaking was required. She
filed a $300 bond that same day.
¶5 On October 6, 2016, nearly seven months later and while
the parties were engaged in discovery—and after the applicable
statute of limitations had run—West Jordan City moved to
dismiss Zemlicka’s suit for her failure to file an undertaking at
the time her complaint was filed rather than a few weeks later
when the court instructed her to file a $300 undertaking. See
Utah Code Ann. § 63G­7­601(2) (LexisNexis 2016). The district
court granted West Jordan City’s motion and dismissed
(…continued)
version of the statute was problematic, and future cases will be
governed by the more sensible amended version of section 601
rather than the prior version that applies in this case.
2. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” State v. Apotex
Corp., 2012 UT 36, ¶ 3, 282 P.3d 66 (quotation simplified).
20170136-CA 3 2019 UT App 22Zemlicka v. West Jordan City
Zemlicka’s suit, determining that Zemlicka “failed to strictly
comply” with section 601 “because, ‘at the time the action [was]
filed,’ the Plaintiff did not ‘file an undertaking in the sum fixed
by the court that is not less than $300.00.’” Zemlicka appeals.
ANALYSIS
¶6 Zemlicka contends that the district court erred in its
interpretation of the prior version of section 601. 3 “Statutory
interpretation is a matter of law that we review for correctness,”
affording no deference to the district court’s interpretation.
Bilanzich v. Lonetti, 2007 UT 26, ¶ 10, 160 P.3d 1041.
¶7 Zemlicka argues that “[t]he plain and unambiguous
language of the statute requires a court to first fix the amount of
the undertaking, and then for the plaintiff to file an undertaking
in said amount,” asserting that the grammatical structure of the
statute requires the court to set an undertaking amount for each
suit “[a]t the time the action is filed.”
¶8 West Jordan City, in contrast, argues that the statute,
despite its terms, does not actually require the court to fix an
undertaking amount in each case but instead “includes a default
minimum undertaking amount of $300” that a plaintiff should
know to file with the complaint. This contention seems to rely on
what West Jordan City sees as “the well-settled rule” in Utah
that a plaintiff should file a $300 undertaking when the complaint
3. Zemlicka also contends that the district court erred in
dismissing her complaint because West Jordan City waived any
issue about the timing of her filing of the undertaking by
proceeding with discovery and waiting seven months before
raising an objection to when the undertaking was filed. Because
we reverse on the basis of statutory interpretation, we do not
reach the question of whether West Jordan City waived any
defense premised on the timeliness of the undertaking’s filing.
20170136-CA 4 2019 UT App 22Zemlicka v. West Jordan City
is filed to satisfy the statutory undertaking requirement. 4 While
this view effectively ignores the “in a sum fixed by the court”
requirement, we recognize that the Utah Supreme Court has, in
passing, stated that section 601 requires a plaintiff to “include an
undertaking at the time of filing,” Marziale v. Spanish Fork City,
2017 UT 51, ¶ 21, 423 P.3d 1145, but the definitive interpretation
of the applicable version of section 601 is an issue of first
impression, see also Craig v. Provo City, 2016 UT 40, ¶¶ 6, 40, 389
P.3d 423 (noting that the complaint was filed “without the $300
bond required by” section 601).
¶9 When interpreting a statute, “we first examine the
statute’s plain language and resort to other methods of statutory
interpretation only if the language is ambiguous.” State v.
4. Utah’s federal courts complied with the prior version of
section 601 by requiring a plaintiff to file a $300 undertaking at
the time of filing a complaint. See Rippstein v. Provo City, 929 F.2d
576, 578 (10th Cir. 1991); Mglej v. Garfield County, No.
2:13­CV­713, 2014 WL 2967605, at *2 (D. Utah July 1, 2014). But
the federal courts did not view this as an automatic function of
the statute. Rather, to resolve the logistical impossibility
presented by the statute, the Utah federal district court created a
local rule, essentially fixing the undertaking amount at $300 in
all cases. See DUCivR 67-1(c). See also Markus B. Zimmer
& Louise S. York, Negotiating the Amended Federal Court Local
Rules of Practice, 10 Utah Bar Journal 37, 38 (Sept. 1997) (stating
that this rule amended an earlier rule requiring “the filer to
obtain a signed order from the assigned judge at the time of case
opening to set the amount of bond and to authorize the clerk to
accept the funds . . . often caus[ing] delay and inconvenience for
counsel filing the actions and for the judge signing the order”).
This rule complies with the prior version of section 601,
applicable in this case but since amended, because the court has
“fixed” the amount of the undertaking in each case, albeit by
court rule applicable across the board instead of via judicial
consideration in each individual case.
20170136-CA 5 2019 UT App 22Zemlicka v. West Jordan City
Masciantonio, 850 P.2d 492, 493 (Utah Ct. App. 1993). In so doing,
we “presume that the Legislature used each term advisedly, and
we give effect to each term according to its ordinary and
accepted meaning.” Versluis v. Guaranty Nat’l Cos., 842 P.2d 865,
867 (Utah 1992).
¶10 Section 601, as previously phrased, clearly and
unambiguously required a plaintiff, at the time of filing the
complaint, to file an undertaking in an amount already fixed by
the court. See Utah Code Ann. § 63G-7-601(2) (LexisNexis 2016).
Although an undertaking could not be less than $300, the
Legislature purposely left the amount of an undertaking in each
case to be determined by the district court prior to the filing of an
action, using the past tense form of the verb “fix,” i.e., “fixed.” Id.
See also Hansen v. Salt Lake County, 794 P.2d 838, 840 n.4 (Utah
1990) (noting that, under the statute, the district court initially
fixes the undertaking amount). Cf. Zamora v. Draper, 635 P.2d 78,
81 (Utah 1981) (stating that similar statutory language allows the
court flexibility to fix the amount of the bond in accordance with
the plaintiff’s circumstances).
¶11 Because the statute by its plain terms required a logistical
impossibility, we cannot adopt the simplest plain reading of the
statute. We therefore must embrace a reasonable interpretation
of section 601, one that accepts the legislative intent to protect
governmental entities from frivolous suits by requiring an
undertaking, while mandating that courts, in the exercise of their
sound discretion, fix the amount of the undertaking in each case.
See Utah Code Ann. § 63G-7-601(2); Hansen, 794 P.2d at 840. Our
primary goal in statutory interpretation “is to evince the true
intent and purpose of the Legislature,” Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (quotation
simplified), “requir[ing] us to consider what the figurative
‘legislative mind’ would have intended had it adverted to the
particular circumstances we are confronted with for
adjudication.” ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2010
UT 65, ¶ 17, 245 P.3d 184 (quotation simplified). “In doing this,
we take into account the purpose of the statute and what
20170136-CA 6 2019 UT App 22Zemlicka v. West Jordan City
interpretation and application will best serve that purpose in
practical operation.” Id. (quotation simplified).
¶12 Under the previous version of the statute applicable in
this case, the phrase, “[a]t the time the action is filed, the plaintiff
shall file an undertaking,” seemingly required plaintiffs to file an
undertaking at the time they filed their complaint. But the
undertaking must be in an amount “fixed by the court,” and as
we have already pointed out, a district court will not fix the
amount of the undertaking before a complaint has been filed,
thereby actually commencing the action. Because “time” is “a
period during which something (as an action, process, or
condition) exists or continues,” Time, Webster’s Third New
International Dictionary 2394 (1993), and because the prior
version of section 601 imposed on the court the duty to fix the
amount of the undertaking, an action, once filed in the technical
sense, will not be considered filed and effective for purposes of
section 601 until the court fixes the amount of the undertaking,
whereupon the plaintiff is obliged to post an undertaking in that
amount. Accordingly, once the complaint is filed, the court is
obligated to fix an undertaking in an amount that is
discretionary with the court but which may not be “less than
$300.” Utah Code Ann. § 63G-7-601(2). Once the amount is fixed
by the court, the plaintiff must promptly 5 file an undertaking
5. This does not mean that the plaintiff is expected to file the
undertaking at the same moment the court fixes the amount.
And given that electronic filing is the typical method for filing a
complaint and issuing an order while, as we were advised at oral
argument, bonds and other undertakings are memorialized in
paper documents that must be physically presented to the court,
the filing of the undertaking will necessarily follow the issuance
of the order fixing the amount even as that order will necessarily
follow the filing of the complaint. Therefore, the filing of an
undertaking should promptly follow the court’s fixing of the
amount of the undertaking. And in this case, Zemlicka filed her
bond later that same day.
20170136-CA 7 2019 UT App 22Zemlicka v. West Jordan City
upon entry of the court’s order fixing the amount which, of
necessity, will be a time later than when the complaint was filed.
Cf. Kiesel v. District Court, 84 P.2d 782, 783–84 (Utah 1938)
(interpreting statutory language that required a plaintiff to
“prepare and file with, and at the time of filing, the complaint in
any such action, a written undertaking” to mean
“contemporaneously[6] with the [filing of the] complaint”). An
undertaking must therefore be filed as soon as the amount is
fixed by the court, or the plaintiff risks having the suit
dismissed. See Hansen, 794 P.2d at 840 (providing that “[f]ailure
to pay the undertaking is an affirmative defense”).
¶13 Here, on March 14, 2016, the court notified Zemlicka that
she needed to post a $300 undertaking. She did so immediately.
But, in its decision granting West Jordan City’s motion to
dismiss, the district court stated that it was merely advising
Zemlicka of the undertaking requirement, not fixing the amount
of the undertaking. We will not set aside a factual finding unless
it is “without factual support in the record or if [we] on the
entire evidence [are] left with the definite and firm conviction
that a mistake has been made.” Jouflas v. Fox Television Stations,
Inc., 927 P.2d 170, 174 (Utah 1996) (quotation simplified).
Because section 601 required the court to fix the amount of the
undertaking, and there was nothing in the record establishing
that the court fixed the amount before March 14, 2016, the court
erred in implicitly determining that the amount was set before
this date. On the contrary, the court is deemed to have fixed the
amount on March 14, 2016, less than a month after the action
was filed, when its clerk notified Zemlicka that she must post a
$300 undertaking. Zemlicka was required to file her undertaking
contemporaneously with the court fixing the amount of the
undertaking, which she did by filing it later that same day.
6. “Contemporaneously” means “at or near the same time.”
Contemporaneously, Webster’s Third New International
Dictionary 491 (1993).
20170136-CA 8 2019 UT App 22Zemlicka v. West Jordan City
¶14 Given the legislative intent behind section 601, West
Jordan City’s objection to Zemlicka’s late undertaking “is at best
but a technical one,” because “[t]he only legitimate advantage
[West Jordan City] was entitled to was protection from loss of
costs.” See Bunting Tractor Co. v. Emmet D. Ford Contractors, Inc.,
272 P.2d 191, 192 (Utah 1954). But Zemlicka “stands to lose
forever the right to pursue what might well be a meritorious
cause of action. It would have been one thing to dismiss the
action without prejudice and require [Zemlicka] to incur the
additional expense and inconvenience of filing anew, but it is
quite another to dismiss with prejudice and completely,
effectively and permanently bar [her] from remedy.” See id. at
192–93.
¶15 We conclude that Zemlicka complied with the
requirements of the version of section 601 applicable to her case,
as properly understood. And we again note that the problem
presented in this case will be avoided in the future because in
the amended version of section 601, the Legislature has fixed the
amount of the initial undertaking to be filed in such cases.
CONCLUSION
¶16 We reverse the district court’s grant of West Jordan City’s
motion to dismiss because Zemlicka complied with the prior
version of section 601. We remand the case for resolution on its
merits.
20170136-CA 9 2019 UT App 22