Stephenson v. Elison , 845 Utah Adv. Rep. 75 ( 2017 )

2017 UT App 149THE UTAH COURT OF APPEALS
ROGER STEPHENSON,
Appellant,
v.
GERALD ELISON, BENNETT NEILSEN,
AND ALPINE SCHOOL DISTRICT,
Appellees.
Opinion
No. 20150693-CA
Filed August 10, 2017
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 140400281
Sara Pfrommer and Emily Adams, Attorneys
for Appellant
Sean D. Reyes and J. Clifford Petersen, Attorneys
for Appellees
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.1
POHLMAN, Judge:
¶1 Roger Stephenson filed suit in 2014, alleging that in the
early 1980s he had been sexually assaulted by a junior high
school teacher. Stephenson alleged claims against the teacher,
Gerald Elison; the junior high school principal at the time,
Bennett Neilsen; and the Alpine School District (ASD). The
district court granted summary judgment in favor of the
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
Stephenson v. Elison
defendants on the ground that the relevant statutes of limitations
expired before Stephenson filed suit. We dismiss Stephenson’s
appeal on the related ground that Stephenson’s failure to
provide timely notice of his claims left the district court without
subject matter jurisdiction to adjudicate them.
BACKGROUND
¶2 From 1979 until 1982, Stephenson attended Orem Junior
High School, where Elison was a drama and musical theater
teacher.2 Stephenson enrolled in Elison’s classes and participated
in plays produced under Elison’s supervision. In 1981 or 1982,
Stephenson had a conversation with a classmate regarding
Elison’s conduct toward him and allegedly described conduct
that constituted sexual assault. The classmate informed a
teacher, and the teacher reported the matter to Neilsen.
¶3 Neilsen questioned Stephenson regarding the allegations,
in a manner Stephenson described as “hostile and accusatory,”
which led Stephenson “to believe he had acted inappropriately
and would be subject to discipline.” Neilsen allegedly instructed
Stephenson to recount the accusations, and the following day
Neilsen and Elison allegedly pressed Stephenson on whether
there had been a “misunderstanding.” No further action was
taken.
¶4 Over twenty-five years later, in January 2008, Stephenson
“approached the Orem Police Department . . . with information
regarding Elison’s abuse.” But a member of the police
department with a “family connection” to Elison allegedly
2. Because this case comes to us on summary judgment, we
construe the facts in a light most favorable to Stephenson, the
nonmoving party. See Jensen v. Young, 2010 UT 67, ¶ 2, 245 P.3d
731.
20150693-CA 2 2017 UT App 149Stephenson v. Elison
interfered with the investigation of Stephenson’s claims, and “no
legitimate investigation of Elison was ever conducted.”
¶5 In February 2008, Stephenson confronted Elison and
allegedly obtained “what is effectively a[] [signed] admission” of
sexual assault, as well as an agreement that Elison would have
“no further contact with minor children.” Around that same
time, Stephenson approached ASD with his concern that no
charges had been filed against Elison, and he was allegedly told
that a thorough investigation had been conducted but no
evidence corroborating his allegations of sexual abuse had been
uncovered.
¶6 In November 2013, Stephenson submitted a notice of
claim to ASD, and in early 2014, Stephenson filed his complaint
in the underlying action. Against Elison, he alleged sexual
assault and sexual battery; against Elison and Neilsen, he alleged
intentional infliction of emotional distress; and against Elison,
Neilsen, and ASD, he alleged negligence, conspiracy, and failure
to report sexual abuse of a minor. He also sought declaratory
and injunctive relief.
¶7 With regard to the timing of his lawsuit, Stephenson
alleged that “[o]nly in the past few years” had he “become
cognizant to the full extent of damages caused by Elison’s sexual
abuse and ASD’s and Neilsen’s complicit enabling through
willful inaction and active cover-up attempts.” Moreover,
“exceptional circumstances involving physical and medical
issues” had prevented Stephenson from filing the lawsuit “until
this time.”
¶8 Elison and Neilsen moved to dismiss, asserting that
Stephenson had not timely provided notice of his claims as
required by the Governmental Immunity Act of Utah. See Utah
Code Ann. § 63-30-12 (Allen Smith Co. Supp. 1985) (providing
that “[a] claim against the state or its employee for an act or
omission occurring during the performance of his duties, within
20150693-CA 3 2017 UT App 149Stephenson v. Elison
the scope of employment, or under color of authority, is barred
unless notice of claim is filed . . . within one year after the claim
arises”) (repealed 2004); id. § 63G-7-402 (LexisNexis 2008).
¶9 Elison and Neilsen asserted that Stephenson’s claims were
tolled until he reached the age of majority in the mid-1980s, that
the one-year period to provide notice of his claims expired the
following year, and that Stephenson did not file notice of his
claims until 2013. According to Elison and Neilsen, because
Stephenson had already “lost his right . . . to recover” on his
claims, the alleged 2008 cover-up of those claims could not have
resulted in damage, and Stephenson had not alleged and could
not have sustained injury stemming solely from the alleged
cover-up. ASD filed a separate motion asserting these same
grounds for dismissal.
¶10 The district court denied the motions, concluding that the
complaint did not state “facts relevant to [Stephenson’s]
compliance with the notice of claim procedures,” as there was
“no mention of a notice of claim.” The court elected not to treat
the motions to dismiss as motions for summary judgment and
thereby consider matters outside the complaint because, in the
court’s view, the “sensitive nature and complexity of the claims
and defenses” rendered “summary resolution . . . premature.”
See Utah R. Civ. P. 12(b) (requiring conversion of motions to
dismiss to motions for summary judgment when the court
considers “matters outside the pleading”)
¶11 Shortly thereafter, when the parties were engaged in
initial discovery and months away from the deadlines set for
completion of fact and expert witness discovery, Elison and
Neilsen moved for summary judgment. ASD joined the motion,
which asserted that the statutes of limitations relevant to
Stephenson’s claims had expired before Stephenson filed suit.
¶12 Stephenson asked the court to deny the motion because
“factual issues” existed regarding whether the “statutes of
20150693-CA 4 2017 UT App 149Stephenson v. Elison
limitations [were] tolled.” Stephenson also obtained leave to file
supplemental briefing regarding whether he should receive
additional time to conduct discovery. In his briefing, Stephenson
asserted that “[f]urther discovery is needed” on the issues of
“the nature and extent of” Stephenson’s competency to bring an
action alleging sexual abuse, “whether exceptional
circumstances exist that tolled the statute of limitations,” and
“whether fraudulent concealment tolls the statute of
limitations.”
¶13 Elison and Neilsen objected, asserting that Stephenson
had “fail[ed] to explain how additional discovery directed to”
the defendants would “aid in [Stephenson’s] evaluation of his
own mental competency.” (Emphasis omitted.) According to
Elison and Neilsen, Stephenson “also fail[ed] to present any
argument explaining why the discovery rule and/or fraudulent
concealment apply to facts including his having direct
knowledge of the circumstances surrounding the allegations of
sexual abuse . . . both in 1981 and again in 2008.”
¶14 On reply, Stephenson asserted that “[m]ental capacity and
memory repression are both issues which, if present as alleged,
would have the effect of tolling the statute of limitations”; that
“memory repression, mental capacity, and even influence of
fraud . . . are issues squarely for expert discovery”; and that
“expert reports are typically produced after discovery is
complete.” Stephenson also alleged that “[t]here are, at this time,
documents which indicate the possibility of fraudulent
concealment but which require additional discovery.”
¶15 The district court granted the defendants’ motion for
summary judgment and dismissed all of Stephenson’s claims.
The court concluded that the defendants had met their initial
burden with regard to expiration of the limitations periods and
that Stephenson had failed to present evidence creating a fact
issue as to tolling. The court also denied Stephenson’s request
20150693-CA 5 2017 UT App 149Stephenson v. Elison
for additional time for discovery, concluding that Stephenson
had “fail[ed] to explain how additional discovery directed to
defendants [would] aid in his evaluation of his own mental
competency” or would “affect his own admissions of having
direct knowledge of the circumstances surrounding the
allegations of sexual abuse.”
¶16 Stephenson then moved to alter or amend the judgment,
asserting that “newly discovered[] material evidence, including
the opinions of Stephenson’s expert, demonstrates that the
statute of limitations should be tolled.” Stephenson attached a
brief report by Dr. David M. Ranks, who evaluated Stephenson
shortly after summary judgment was granted. Dr. Ranks’s write-
up included his “initial expert opinion that the abuse and
subsequent concealment ‘left [Stephenson] factually unable to
comprehend his trauma.’” (Alteration in original.)
¶17 Later, in his reply briefing, Stephenson submitted a more
substantive write-up and supporting declaration by Dr. Ranks,
which stated, among other things, that Stephenson’s “attempts
to reach out to law enforcement” and ASD officials in 2008 were
not “conclusive evidence” that he “factually comprehended at
that time he had been sexually abused,” and Stephenson was
“unable to factually comprehend the circumstances of his
abuse[], and that he had been sexually abused, until the time this
lawsuit was filed. In other words, . . . Stephenson was unable to
comprehend his abuse sufficiently to bring the litigation until the
time he actually” filed his complaint.
¶18 The district court denied Stephenson’s motion,
concluding that the opinions and declaration of Dr. Ranks were
not newly discovered evidence because, at a minimum, an
affidavit from Dr. Ranks could have been submitted prior to
issuance of the court’s ruling on summary judgment. In
addition, the court concluded that the evaluations and
declaration did not establish, for tolling purposes, that
20150693-CA 6 2017 UT App 149Stephenson v. Elison
Stephenson was unaware of the facts underlying his claims for
any period of time prior to 2014. Stephenson appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Stephenson contends the district court erred by granting
summary judgment in favor of the defendants, denying his
motion to alter or amend the judgment, and denying his request
for additional time for discovery. The defendants assert that each
of the district court’s rulings should be upheld. They also assert
that summary judgment may be affirmed on the ground that
Stephenson did not comply with the one-year notice of claim
requirement imposed by the Governmental Immunity Act, and
the district court therefore lacks subject matter jurisdiction over
Stephenson’s claims.
¶20 We review the district court’s “legal conclusions and
ultimate grant or denial of summary judgment for correctness.”
Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630(citation and internal quotation marks omitted). “Summary
judgment is appropriate when there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law,” viewing the facts and all reasonable inferences
drawn therefrom in a light most favorable to the nonmoving
party. Id.; accord Utah R. Civ. P. 56(a).3
¶21 In addition, when a party opposing summary judgment
seeks additional time for discovery, we review the grant or
3. Utah Rule of Civil Procedure 56 was amended in 2015, after
the motion for summary judgment was argued and decided. But
because the 2015 amendments did not alter “substantive Utah
law” with regard to rule 56, we cite the current version of the
rule. See Utah R. Civ. P. 56 advisory committee notes; accord
Porter v. EB Golf LLC, 2016 UT App 82, ¶ 7 n.3, 372 P.3d 709.
20150693-CA 7 2017 UT App 149Stephenson v. Elison
denial of the motion for abuse of discretion. Crossland Sav. v.
Hatch, 877 P.2d 1241, 1243 (Utah 1994). We likewise review a
district court’s grant or denial of a motion to alter or amend the
judgment for abuse of discretion. Sanpete Am., LLC v. Willardsen,
2011 UT 48, ¶ 28, 269 P.3d 118.
ANALYSIS
¶22 The defendants assert there is an “alternative ground” for
affirming the district court’s grant of summary judgment: that
Stephenson did not comply with the Governmental Immunity
Act’s one-year notice of claim requirement, and the district court
therefore lacked subject matter jurisdiction over all of
Stephenson’s claims. However, absence of subject matter
jurisdiction is not merely an alternative ground this court may,
at its discretion, address. “Lack of jurisdiction can be raised at
any time,” and if the district court lacks subject matter
jurisdiction to adjudicate Stephenson’s claims, this court is
required to dismiss them. See Lamarr v. Utah State Dep’t of
Transp., 828 P.2d 535, 540 (Utah Ct. App. 1992); accord Utah R.
Civ. P. 12(h) (“[W]henever it appears by suggestion of the parties
or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.”).
¶23 “[F]ailure to comply with the notice requirements of the
Utah Governmental Immunity Act deprives the trial court of
subject matter jurisdiction” over the asserted claims. Nielson v.
Gurley, 888 P.2d 130, 134–35 (Utah Ct. App. 1994); see also Thomas
v. Lewis, 2001 UT 49, ¶ 13, 26 P.3d 217 (“The notice of claim
provisions of the Governmental Immunity Act are
jurisdictional.”). We therefore address the question of proper
notice first, and we reach the other issues raised on appeal only
as necessary to resolve this threshold question. See Thomas, 2001
UT 49, ¶ 13.
20150693-CA 8 2017 UT App 149Stephenson v. Elison
¶24 Under the Governmental Immunity Act, a claim against a
governmental entity or employee “for an act or omission
occurring during the performance of the employee’s duties,
within the scope of employment, or under color of authority, is
barred unless notice of claim is filed” as specified “within one
year after the claim arises.” Utah Code Ann. § 63G-7-402
(LexisNexis 2008).4 For purposes of the notice provision, “a claim
arises when the statute of limitations that would apply if the
claim were against a private person begins to run.” Id. § 63G-7-
401(1)(a).
¶25 On appeal, Stephenson “assumes” that he was required to
file a notice of claim for each of his claims, but “submits that he
fulfilled that requirement by notice given in November 2013.”
He contends that “the same equitable tolling arguments” he has
asserted with regard to the statutory limitations periods also
apply to the one-year period for filing a notice of claim. On that
basis, he claims to have made a sufficient showing of entitlement
“to equitable tolling of the notice of claims provisions,” such that
the district court had subject matter jurisdiction to adjudicate his
claims. We disagree.
¶26 A statute of limitations generally begins to run “upon the
happening of the last event necessary to complete the cause of
action.” Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 20, 108
P.3d 741 (citation and internal quotation marks omitted). Here,
the district court concluded Stephenson’s claims arose out of
incidents alleged to have occurred in 1981 and 2008, and the
limitations periods thus began running in 1985, when
Stephenson turned eighteen, or in 2008, when the last acts
4. Because the defendants assert the one-year notice of claim
period began running on all of Stephenson’s claims by at least
2008, we refer to the provisions of the Governmental Immunity
Act in effect in 2008, unless otherwise indicated.
20150693-CA 9 2017 UT App 149Stephenson v. Elison
necessary to complete the latter causes of action occurred. On
appeal, Stephenson does not challenge these conclusions, but
instead relies solely on assertions of tolling. Accordingly, unless
the limitations periods were tolled, they began running in 1985
for the earlier claims and in 2008 for the later claims, and the
one-year notice periods expired in 1986 and 2009, respectively.
¶27 There are “two narrow settings in which a statute of
limitations may be tolled until the discovery of facts forming the
basis for the cause of action.” Id. ¶ 21 (citation and internal
quotation marks omitted). The first setting involves application
of a statutory discovery rule, when the relevant statute of
limitations, by its own terms, mandates tolling of the limitations
period until the factual basis for the claim has been discovered.
See id. The second setting involves application of an equitable
discovery rule in cases involving fraudulent concealment or
exceptional circumstances. Id. ¶¶ 24–25. Fraudulent concealment
occurs when the plaintiff “does not become aware of the cause of
action because of the defendant’s concealment or misleading
conduct,” and exceptional circumstances exist when “the case
presents exceptional circumstances and the application of the
general rule would be irrational or unjust, regardless of any
showing that the defendant has prevented the discovery of the
cause of action.” Id. ¶ 25 (citation and internal quotation marks
omitted).
I. The Governmental Immunity Act’s
Internal Discovery Rule
¶28 Stephenson contends that the Governmental Immunity
Act’s one-year notice period was equitably tolled until he filed
his notice of claims in November 2013. He asserts that the
“notice of claims provisions are just another kind of statute of
limitations and are therefore subject to the same equitable tolling
arguments that apply to the filing of the complaint.”
20150693-CA 10 2017 UT App 149Stephenson v. Elison
¶29 But tolling under statutory and equitable discovery rules
is usually mutually exclusive; in other words, “an equitable
discovery rule may operate to toll an otherwise fixed statute of
limitations . . . only where a statute of limitations does not, by its
own terms, already account for such circumstances—i.e., where
a statute of limitations lacks a statutory discovery rule.” Russell
Packard Dev., 2005 UT 14, ¶ 25. And statutory language added in
2004 to the Governmental Immunity Act’s one-year notice
requirement sets forth an internal discovery rule:
(b) The statute of limitations does not begin to run
until a claimant knew, or with the exercise of
reasonable diligence should have known:
(i) that the claimant had a claim against the
governmental entity or its employee; and
(ii) the identity of the governmental entity or
the name of the employee.
(c) The burden to prove the exercise of reasonable
diligence is upon the claimant.
Utah Code Ann. § 63-30d-401(1)(b), (c) (LexisNexis 2004). This
language was in effect in 2008, when the conduct giving rise to
Stephenson’s later claims allegedly occurred. See id. § 63G-7-
401(1)(b), (c) (2008).
¶30 No Utah appellate court has previously addressed
whether this internal discovery rule precludes a claimant’s
assertion of equitable tolling otherwise available under “the
statute of limitations that would apply if the claim were against
a private person.” See id. § 63G-7-401(1)(a). The parties do not
address this question, and Stephenson neither cites the internal
discovery rule nor asserts it as a basis for tolling his claims. But if
the internal tolling provision applies, Stephenson’s assertion of
equitable tolling is inapplicable to all of his claims for which the
20150693-CA 11 2017 UT App 149Stephenson v. Elison
last event necessary to complete the cause of action occurred in
2008.5 See Russell Packard Dev., 2005 UT 14, ¶ 25.
¶31 We need not decide Stephenson’s appeal on this basis,
however, because even assuming equitable tolling is available
for all of Stephenson’s claims, the evidence on which Stephenson
relies is insufficient to support equitable tolling for any of his
claims, whether based on conduct that allegedly occurred in the
early 1980s or in 2008.6 We therefore turn to the record in
support of Stephenson’s claim of equitable tolling.
II. Equitable Tolling of Stephenson’s Claims
¶32 Stephenson concedes that he did not produce in his
opposition to summary judgment “evidence to create a genuine
issue of material fact about whether” the statutes of limitations
applicable to his claims “should be equitably tolled.” Yet
Stephenson asserts he should nevertheless be permitted to
pursue his claims under a theory of equitable tolling, for three
reasons. First, Stephenson claims the defendants are not entitled
5. Earlier versions of the Governmental Immunity Act, including
the provisions in effect in 1985 and 1986, did not contain the
internal discovery rule set forth above. See Utah Code Ann. § 63-
30-11 (Michie 1986); id. (Allen Smith Co. Supp. 1985); Cedar Prof’l
Plaza, LC v. Cedar City Corp., 2006 UT App 36, ¶¶ 1 n.1, 12, 131
P.3d 275 (noting that the pre-2004 provisions of the
Governmental Immunity Act did not contain an internal
discovery rule applicable to the one-year notice period).
6. Although we need not address this issue further, we note that
if Stephenson had asserted a claim of statutory tolling with
respect to his 2008 claims, it would fail for many of the same
reasons set forth with regard to his claim of equitable tolling. See
infra ¶¶ 38–49.
20150693-CA 12 2017 UT App 149Stephenson v. Elison
to summary judgment because they did not establish he “could
never prove that the statute[s] of limitations could be tolled.”
Second, Stephenson contends Dr. Ranks’s opinions and
declaration, submitted with his motion to alter or amend the
judgment, create a genuine issue of material fact with regard to
tolling. Third, Stephenson asserts he should have been given
additional time to conduct discovery on the issue. We address
each argument in turn.
A. The Parties’ Respective Burdens of Proof
¶33 Generally, the burden of establishing that a limitations
period should be tolled rests upon the plaintiff alleging the
underlying claim. See Tracey v. Blood, 3 P.2d 263, 266 (Utah 1931)
(“Apparently all courts are agreed . . . that the burden [is] upon
the plaintiff to plead and prove facts sufficient to toll the statute
of limitations . . . .”). And when a party bears the burden of
proof on a legal theory, and the opposing party moves for
summary judgment and demonstrates the absence of any
genuine issue of material fact, the burden shifts to the
nonmoving party to “set forth specific facts showing that there is
a genuine issue for trial.” Jones & Trevor Mktg., Inc. v. Lowry, 2012
UT 39, ¶ 30, 284 P.3d 630 (citation and internal quotation marks
omitted). Likewise, when a defendant moves for summary
judgment prior to the close of the discovery period, the
defendant “bears the burden of proving it is entitled to judgment
as a matter of law.” Advanced Forming Techs., LLC v. Permacast,
LLC, 2015 UT App 7, ¶ 8, 342 P.3d 808. A plaintiff may oppose
the motion by demonstrating a genuine issue of material fact,
showing the defendant is not entitled to summary judgment
based on the undisputed facts, or seeking a continuance in
accordance with Utah Rule of Civil Procedure 56. See id.¶34 In this case, the defendants moved for summary
judgment before the close of the discovery period. As required,
they demonstrated entitlement to judgment as a matter of law by
20150693-CA 13 2017 UT App 149Stephenson v. Elison
establishing expiration of the statutory limitations periods, given
the undisputed passage of time between the conduct alleged and
the filing of Stephenson’s complaint. Because Stephenson did not
allege any deficiency in this showing, the burden shifted to
Stephenson to establish a genuine issue of material fact with
regard to tolling, and if Stephenson required additional time for
discovery, he had the option of seeking additional time in
accordance with rule 56. See id.¶35 Likewise, on appeal the defendants have demonstrated
Stephenson’s failure to provide notice of his claims within the
one-year period set forth in the Governmental Immunity Act.
They request that summary judgment be affirmed on that basis,
and because Stephenson does not assert any error in the
defendants’ showing, he bears the burden of demonstrating a
genuine issue of material fact as to tolling or establishing error in
the district court’s denial of his request for a continuance to
obtain further discovery bearing on this question.7
¶36 Yet Stephenson misunderstands his obligation,
erroneously contending that summary judgment was improper
because the defendants did not establish Stephenson “could
never” make a successful case for equitable tolling. Stephenson
relies on a discussion in Advanced Forming Technologies, LLC v.
Permacast, LLC, 2015 UT App 7, 342 P.3d 808, which is
inapplicable here because it addressed a situation in which a
defendant moving for summary judgment prior to expiration of
the discovery period “did not demonstrate its entitlement to
7. On appeal, Stephenson has not requested additional time to
address the notice-of-claim question; his only argument in that
regard is that the district court erroneously denied his request
for additional time to conduct discovery prior to ruling on the
summary judgment motion. We address Stephenson’s argument
accordingly.
20150693-CA 14 2017 UT App 149Stephenson v. Elison
judgment as a matter of law.” See id. ¶ 15. And Advanced Forming
Technologies sets out the burdens outlined above when, as here, a
defendant moves for summary judgment prior to the close of the
discovery period and demonstrates entitlement to judgment as a
matter of law. Id. ¶¶ 8–15.
¶37 In this case, it is undisputed that the issues litigated in the
district court summary judgment proceeding overlap in all
material respects with the issues relevant on appeal to the notice-
of-claim question. And Stephenson does not assert that anything
other than the summary judgment standard applies for purposes
of this inquiry.8 Applying the summary judgment standards set
forth above, the burden is on Stephenson to identify evidentiary
support for his equitable tolling claim or to demonstrate why
additional time should have been provided to procure it. See
Utah R. Civ. P. 56; Advanced Forming Techs., 2015 UT App 7, ¶ 8.
We therefore examine whether Stephenson submitted sufficient
evidentiary support for his claim of equitable tolling and
whether the district court exceeded its discretion by denying
Stephenson’s request for additional time to obtain it.
B. The Evidence in Support of Equitable Tolling
¶38 Stephenson points to only one source of evidence in
support of his claim of equitable tolling—Dr. Ranks’s opinions
and declaration, which were submitted with Stephenson’s
8. Indeed, each of Stephenson’s arguments assumes application
of the summary judgment framework—i.e., his assertion that the
defendants are not entitled to summary judgment because they
did not rule out every possible basis for equitable tolling; that
the order granting summary judgment should have been altered
because Dr. Ranks’s opinions and declaration raise genuine
issues of material fact; and that the summary judgment ruling
should have been postponed.
20150693-CA 15 2017 UT App 149Stephenson v. Elison
motion to alter or amend the judgment under Utah Rule of Civil
Procedure 59. According to the parties, this evidence may
support entry of an amended judgment only if it is “newly
discovered material evidence that could not, with reasonable
diligence, have been discovered and produced at the trial.” See
Utah R. Civ. P. 59(a)(4). But we need not reach this question
because regardless of whether the evidence was “newly
discovered” for purposes of rule 59(a)(4), it does not raise a
genuine issue of material fact as to tolling.
¶39 Before a statute of limitations may be tolled under the
equitable discovery rule, due to either exceptional circumstances
or fraudulent concealment, “the plaintiff must make an initial
showing that he did not know nor should have reasonably
known the facts underlying the cause of action in time to
reasonably comply with the limitations period.” McBroom v.
Child, 2016 UT 38, ¶ 34, 392 P.3d 835 (citation and internal
quotation marks omitted). Stephenson asserts he has made this
initial showing and did “not know and could not reasonably
have discovered the facts underlying the cause[s] of action in
time to commence an action” within the one-year notice period.
(Internal quotation marks omitted.) Yet the allegations in
Stephenson’s complaint belie his claim.
¶40 “An admission of fact in a pleading is a judicial admission
and is normally conclusive on the party making it.” Baldwin v.
Vantage Corp., 676 P.2d 413, 415 (Utah 1984). In his complaint,
Stephenson alleged (1) that he “approached the Orem Police
Department . . . with information regarding Elison’s abuse” in
January 2008, (2) that he confronted Elison and obtained “what
is effectively a[] [signed] admission” of sexual assault and an
agreement that Elison would have “no further contact with
minor children” in February 2008, and (3) that he, at around that
same time, approached ASD “about Elison’s molestation and
[Stephenson’s] concern no charges had . . . been filed.”
20150693-CA 16 2017 UT App 149Stephenson v. Elison
Stephenson further alleges he then met with an ASD official and
“recounted Elison’s improper advances” and “molestation.”
¶41 Stephenson’s assertion that he did not know and could
not reasonably have discovered the facts underlying his claims
prior to November 2013, when he filed his notice, rests on
statements pulled from Dr. Ranks’s opinions and declaration,
including statements that “Stephenson [was] unable to factually
comprehend the circumstances of his abuses, and that he had
been sexually abused, until the time this lawsuit was filed”; “[i]t
is inaccurate to state that . . . Stephenson’s attempts to reach out
to law enforcement officials and [ASD] officials in 2008 is
conclusive evidence he . . . factually comprehended at that time
he had been sexually abused”; and “Stephenson could not
factually comprehend he had been sexually abused . . . until
around the time this lawsuit was filed.” In Stephenson’s view,
his claims “are [all] predicated on him realizing that he was
sexually abused,” and Dr. Ranks’s statements that Stephenson
did not “factually comprehend” the abuse therefore support
application of the exceptional circumstances and fraudulent
concealment doctrines to all of his claims.
¶42 Normally, however, no genuine issue of fact is created by
opinions and statements submitted by a party that contradict the
party’s pleaded allegations. See Monarrez v. Utah Dep’t of Transp.,
2014 UT App 219, ¶ 45, 335 P.3d 913 (noting with approval the
principle that “[i]n moving for summary judgment, a party may
rely on the doctrine of judicial admission by utilizing allegations
in the opposing party’s pleadings to eliminate triable issues of
material fact” (citation and internal quotation marks omitted)),
aff’d, 2016 UT 10, 368 P.3d 846; Ramos v. Khawli, 908 N.E.2d 495,
509 (Ohio Ct. App. 2009) (rejecting the argument that an expert
opinion created a genuine issue of material fact, in part because
the “appellant’s own admissions contradict her expert’s opinion
and admit that the standard of care was not breached and that
she was not injured”); cf. Brinton v. IHC Hosps., Inc., 973 P.2d 956,
20150693-CA 17 2017 UT App 149Stephenson v. Elison
973 (Utah 1998) (concluding that statements in the claimant’s
affidavit did not raise a genuine issue of material fact, where the
claimant had not adequately explained the contradiction
between allegations in his complaint and testimony under oath,
and the statements in his later-submitted affidavit); Rutherford ex
rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 11
n.6, 333 P.3d 1266 (rejecting an argument as “contradictory to the
allegations contained in the [parties’] complaint,” noting that
“[a]n admission of fact in a pleading . . . is normally conclusive
on the party making it” (second alteration in original) (citation
and internal quotation marks omitted)), cert. granted, 343 P.3d
708 (Utah 2015).
¶43 And many of Dr. Ranks’s statements are directly contrary
to Stephenson’s allegations, which Stephenson has made no
request to amend or withdraw. For example, Dr. Ranks opines
that, after the 1980s, “Stephenson was . . . prevented from telling
authority figures further about his abuse . . . until this lawsuit
was filed,” but Stephenson alleged that by 2008 he had
(1) brought the conduct to the attention of police officers,
(2) sought out and obtained a confession from the perpetrator as
well as a commitment that the perpetrator would avoid contact
with minor children, and (3) shared his concern with ASD that
no further action had been taken.
¶44 Dr. Ranks’s remaining statements appear similarly
irreconcilable with Stephenson’s allegations and therefore do not
support his claims. But even if construed as consistent rather
than contradictory, the statements would not create genuine
issues of material fact as to tolling. Under the fraudulent
circumstances exception, “plaintiffs with knowledge of
underlying facts must reasonably investigate their claims”
because the limitations period will run. Colosimo v. Roman
Catholic Bishop of Salt Lake City, 2007 UT 25, ¶ 44, 156 P.3d 806.
And with regard to exceptional circumstances, “Utah precedent
evidences . . . reluctance to apply the discovery rule absent
20150693-CA 18 2017 UT App 149Stephenson v. Elison
complete repression of all memory of the abuse.” Id. ¶ 27. Given
the many strides Stephenson allegedly undertook to address the
conduct giving rise to his claims, the record does not support
application of equitable tolling under either the fraudulent
concealment or exceptional circumstances doctrines.9
¶45 When a plaintiff has asked a police department to
investigate and pursue criminal charges, has sought out and
obtained from the alleged perpetrator a written confession and
promise to abstain from contact with a vulnerable population,
and otherwise has brought the conduct to the attention of
persons in positions of authority, the plaintiff must, at a
minimum, explain how application of the general limitations
rule would be irrational or unjust, or demonstrate why he or she
lacked sufficient notice to investigate his or her potential legal
claims. Here, Dr. Ranks’s broadly stated opinions do not contain
any such explanation, and Stephenson does not otherwise
provide one. For example, when pressed in oral argument as to
the meaning of Dr. Ranks’s statements that Stephenson was
“unable to factually comprehend” the abuse, Stephenson was
unable to provide any clarification of Dr. Ranks’s statements or
to effectively explain why he could reach out to law enforcement
9. In so holding, we reject Stephenson’s assertion that all claims
of sexual abuse of a child involve exceptional circumstances
“such that a court should eliminate” any relevant limitations
periods. Despite Stephenson’s argument to the contrary, recent
legislative changes regarding the limitations periods for claims
alleging sexual abuse of a child, see Utah Code Ann. § 78B-2-
308(3)(a), (7) (LexisNexis Supp. 2016), do not provide this court
with authority to overrule the Utah Supreme Court’s holding in
Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007 UT 25, 156
P.3d 806, which refused to categorically eliminate the limitations
periods applicable to such claims, see id. ¶¶ 27, 36.
20150693-CA 19 2017 UT App 149Stephenson v. Elison
and ASD officials but could not seek legal assistance in
investigating private claims.
¶46 Moreover, even assuming that “[o]nly in the past few
years” had Stephenson “become cognizant to the full extent of
damages caused by Elison’s sexual abuse and ASD’s and
Neilsen’s complicit enabling,” as Stephenson alleged, full
comprehension of damages stemming from injurious conduct is
not required before the clock starts running on the limitations
period. See Colosimo, 2007 UT 25, ¶ 31 (“Because the [plaintiffs]
do not allege that they repressed all knowledge of their abuse,
they had knowledge of the operative facts giving rise to their
claims. Their inability to connect the abuse with their injuries
does not render them eligible for application of the exceptional
circumstances version of the discovery rule.”).
¶47 Stephenson, however, suggests that a plaintiff cannot
reasonably be expected to investigate legal claims unless
notification of authority figures results in acknowledgment of
the validity of his allegations and some meaningful response;
otherwise, he asserts, the plaintiff may feel rebuffed and
uncertain of his claims and therefore decline to pursue legal
recourse until a later date. But the relevant standard is not the
degree of confidence a plaintiff has in his or her claims; the
question is whether the plaintiff knew or reasonably should have
known the facts underlying the cause of action “in time to
reasonably comply with the limitations period.” McBroom v.
Child, 2016 UT 38, ¶ 34, 392 P.3d 835 (citation and internal
quotation marks omitted).
¶48 Moreover, even if the denial of a plaintiff’s allegations
could, in some circumstances, excuse the plaintiff’s delay in
asserting his claims, those circumstances are not present here, as
Stephenson allegedly obtained “effectively a[] [signed]
admission” of sexual assault from Elison in 2008. Thus, even if
the police department and ASD “aggravat[ed] the ongoing . . .
20150693-CA 20 2017 UT App 149Stephenson v. Elison
trauma caused by” the alleged sexual abuse by failing to pursue
or corroborate Stephenson’s allegations, as Dr. Ranks opines, the
record contains no genuine issue of material fact as to whether
Stephenson was nevertheless sufficiently aware of the facts
underlying his claims prior to expiration of the latest one-year
notice period in 2009.
¶49 Sexual assault and the alleged cover-up of sexual assault,
particularly against minors by those occupying positions of
authority and trust, are deplorable offenses. But the legislature
has not excepted these types of claims from the Governmental
Immunity Act’s one-year notice period, and the record
demonstrates Stephenson had sufficient awareness of the
underlying facts “to put [him] on inquiry notice of potential
causes of action against the . . . defendants and to impose on
[him] a duty to undertake reasonable inquiry as to the existence
of [his] claims.” Colosimo v. Roman Catholic Bishop of Salt Lake City,
2007 UT 25, ¶ 50, 156 P.3d 806.10
10. Stephenson asserts in his reply brief that his notice of claims
is timely as to Elison, based on recent amendments extending the
pertinent statute of limitations and the period of time for filing a
complaint against a perpetrator of child sexual abuse. See Utah
Code Ann. § 78B-2-308(3)(a), (7) (LexisNexis Supp. 2016). But his
conclusory argument in that regard is inadequately briefed, as
Stephenson has failed to address whether his argument
regarding the statutory amendments may be raised for the first
time on appeal in a reply brief and whether this court may apply
amendments not in effect at the time of the district court’s
dismissal of the case. Stephenson also has not substantively
addressed the interplay between the one-year notice of claims
provision and the extended statutory limitations and filing
periods, but largely assumes that the latter would revive the
former. Given the lack of supporting legal analysis and citation
to and development of legal authority with respect to these
(continued…)
20150693-CA 21 2017 UT App 149Stephenson v. Elison
C. Stephenson’s Request for Additional Time for Discovery
¶50 In his final challenge on appeal, Stephenson asserts his
time for discovery was improperly cut short because the
defendants moved for summary judgment early in the discovery
period, months before fact and expert discovery were set to be
completed. In Stephenson’s view, “the issue central to the
summary judgment motion—whether [he] was entitled to
equitable tolling—was [a fact-intensive] issue that required
expert testimony,” and when Stephenson “asked for additional
time to produce an expert report, . . . the district court denied
that motion.”
¶51 Our case law instructs that to provide an adequate
opportunity for discovery, a district court should liberally grant
additional time when requested in accordance with Utah Rule of
Civil Procedure 56. Spring Gardens Inc. v. Security Title Ins.
Agency of Utah Inc., 2016 UT App 113, ¶ 10, 374 P.3d 1073.
However, district courts have no obligation to grant such
motions if they are “‘dilatory or lacking in merit.’” Id. (quoting
Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)). And
under the circumstances present here, “the district court did not
abuse its discretion in denying [Stephenson] additional time for
discovery because additional discovery time would have been of
(…continued)
issues, we do not address them. See Cheek v. Clay Bulloch Constr.
Inc., 2016 UT App 227, ¶¶ 30–33, 387 P.3d 611; Utah R. App. P.
24(a)(9). Thus, the possible effect of the subsequent changes in
the law on Stephenson’s claims or on the validity of any notice of
claim he has already filed are questions beyond the scope of this
appeal and must be addressed, if at all, in the event Stephenson
attempts to reassert his claims in the context of the amended
statute of limitations.
20150693-CA 22 2017 UT App 149Stephenson v. Elison
no benefit to [Stephenson] given [his] [judicial] admissions.” See
id. ¶ 13.
¶52 Moreover, despite Stephenson’s assertion to the contrary,
he had sufficient time to obtain expert opinions and statements
from Dr. Ranks during the proceedings below, but Dr. Ranks’s
submissions were deemed insufficient by the district court, a
determination we have upheld on appeal. And Stephenson has
failed to identify how additional time or additional discovery
would result in any substantive differences in those opinions or
statements, much less differences that could lead to a different
outcome. We therefore uphold the district court’s denial of
Stephenson’s request for additional time for discovery.
CONCLUSION
¶53 Stephenson failed to file notice of his claims within one
year as required by the Governmental Immunity Act, and
Stephenson has not raised a genuine issue of material fact as to
equitable tolling of the one-year period. In addition, the district
court acted within the bounds of its discretion when it denied
Stephenson’s request for additional time for discovery. We
therefore dismiss Stephenson’s appeal, because Stephenson’s
failure to provide timely notice of his claims left the district court
without subject matter jurisdiction to adjudicate them.
20150693-CA 23 2017 UT App 149