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Docket Number

No. 940521.

Attorney(S)

Lynn P. Heward, Salt Lake City, for plaintiff. Jan Graham, Atty. Gen., Edward O. Ogilvie, Debra J. Moore, Asst. Attys. Gen., Salt Lake City, for defendants.

Judges

HOWE, Justice:

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Smart Summary

Case Summary: Shunk v. State of Utah, No. 940521 (Utah Supreme Court, Apr. 26, 1996)

Factual and Procedural Background

The facts are undisputed. On March 13, 1987, plaintiff Shawn Shunk, then seventeen, was seriously injured when defendant Christine Savage, an employee of Jordan School District, allegedly drove a school bus over his foot. On July 6, 1987, Shunk's counsel timely filed a notice of claim with the state office of education and the attorney general's office and included a request for assistance if the proper governmental entities had not been notified; he received no response.

On July 28, 1988, Shunk filed an action (referred to as "Shunk I") against the State of Utah, Jordan School District, and Christine Savage. The complaint alleged compliance with Utah Governmental Immunity Act notice provisions in §§ 63-30-11 and -12 by sending written notice to the state and the agency concerned. The attorney general's office answered on behalf of all defendants, admitting that allegation but asserting an affirmative defense of noncompliance with the Act. On September 26, 1990, Shunk I was dismissed without prejudice, apparently for failure to prosecute.

Shunk later filed a new action (referred to as "Shunk II") with new counsel, alleging identical compliance with notice provisions. Defendants admitted only that notice had been sent to the state office of education and asserted governmental immunity defenses. Defendants moved to dismiss (treated as a motion for summary judgment) on the basis that Shunk failed to file the statutorily required notice of claim with the governing body of Jordan School District as required by Utah Code Ann. §§ 63-30-11(2) and 63-30-13. The trial court granted summary judgment for defendants on that basis. Shunk appealed.

Legal Issues Presented

Whether plaintiff's failure to file a notice of claim with the governing body of the political subdivision (Jordan School District) as required by Utah Code Ann. § 63-30-13 bars his claim.
Whether defendants are bound by, or estopped from denying, their prior admission in Shunk I that plaintiff complied with the notice requirements.
Whether defendants' answer in Shunk I violated Utah R. Civ. P. 9(c) by not specifically denying performance of conditions precedent (i.e., service on the governing body).

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Defendants are bound by their admission in Shunk I that plaintiff complied with the notice requirements of the Utah Governmental Immunity Act.
Defendants are estopped from changing their position regarding plaintiff's compliance because of their prior admission and because plaintiff requested assistance in his notice filed with the state.
Defendants' answer in Shunk I failed to comply with Utah R. Civ. P. 9(c) by not specifically denying that notice had been properly served on Jordan School District, which plaintiff contends prejudiced his opportunity to cure any deficiency.

Appellees' (Defendants') Arguments

Plaintiff failed to comply with Utah Code Ann. § 63-30-13, which requires that notice of claim be filed with the governing body of the political subdivision (Jordan School District) within one year after the claim arises.
Plaintiff's notice to the state office of education and the attorney general did not satisfy the separate statutory requirement to notify the governing body of the local school district.
In Shunk II, defendants admitted only that notice was sent to the state office of education and asserted immunity and noncompliance as affirmative defenses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993)	Standard for summary judgment: no genuine issues of material fact and movant entitled to judgment as a matter of law.	Used to state the governing summary judgment standard applied in reviewing the trial court's grant of summary judgment.
East Jordan Irr. Co. v. Morgan, 860 P.2d 310, 312 (Utah 1993)	Appellate review of legal conclusions from summary judgment — no deference; review for correctness.	Cited to explain that the Supreme Court reviews the trial court's legal conclusions de novo.
Bellonio v. Salt Lake City Corp., 911 P.2d 1294 (Utah Ct.App. 1996)	Application of § 63-30-13: dismissal for failure to serve governing body of a municipality.	Used by analogy ("Cf.") to support interpretation that failure to serve the governing body of a political subdivision warrants dismissal.
Forsman v. Forsman, 779 P.2d 218 (Utah 1989)	Equitable estoppel where a state agency provided erroneous information that prevented timely filing of a notice of claim.	Discussed and distinguished; the court held Forsman inapplicable because no misinformation was given by the State in this case.
Bischel v. Merritt, 907 P.2d 275 (Utah Ct.App. 1995)	Comparable treatment of situations involving agency misinformation and notice requirements.	Cited as a point of comparison in distinguishing the present facts from cases where agency misinformation prevented timely compliance.

Court's Reasoning and Analysis

The court began by reiterating the governing standard for summary judgment and its de novo review of legal conclusions. It then examined the statutory requirements. At the time of the accident, Utah Code Ann. § 63-30-13 expressly barred a claim against a political subdivision or its employee unless a notice of claim was filed with the governing body of the political subdivision within one year after the claim arose. Section 63-30-2(2) defines "political subdivision" to include school districts. The court concluded that § 63-30-13 therefore required Shunk to file notice with the governing body of Jordan School District within one year, which he conceded he did not do.

The court analyzed the effect of defendants' prior admissions in Shunk I. It noted defendants had admitted in Shunk I that plaintiff complied with §§ 63-30-11 and -12; those admissions related to the content of the notice and, where the claim is against the State, filing with the attorney general and the agency concerned. However, plaintiff had not alleged compliance with § 63-30-13 in Shunk I, and defendants did not admit compliance with § 63-30-13. Because the failure at issue was noncompliance with § 63-30-13 (service on the governing body of the political subdivision), the prior admissions regarding §§ 63-30-11 and -12 did not cure that deficiency.

The court rejected plaintiff's reliance on Forsman v. Forsman, explaining that Forsman dealt with an agency's erroneous misinformation that prevented timely filing; no such misinformation occurred here. Although plaintiff's notice to the state requested assistance if the wrong governmental entity had been notified, the court held that the statutes are clear in requiring service on the governing body of a political subdivision and do not impose a duty on the state to notify claimants of such deficiencies.

Regarding the contention that defendants violated Utah R. Civ. P. 9(c) by failing to specifically deny performance of conditions precedent, the court observed that plaintiff never pleaded that "all conditions precedent have been performed or have occurred." He pleaded only compliance with §§ 63-30-11 and -12, which defendants admitted. Under rule 9(c) a specific denial is required only when the plaintiff has alleged performance of all conditions precedent; because plaintiff did not allege compliance with § 63-30-13, defendants were not required to specifically deny it.

Holding and Implications

Judgment affirmed.

Implications: The court affirmed the trial court's summary judgment dismissing Shunk's complaint on the ground that he failed to file a notice of claim with the governing body of Jordan School District as required by Utah Code Ann. § 63-30-13. The direct consequence is that plaintiff's claim against the school district and its employee was barred for lack of the statutorily required notice. The opinion did not announce a new exception to the statutory notice requirements and did not find that the State had a duty to notify claimants of deficiencies in a filed notice under the circumstances presented.

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Shawn SHUNK, Plaintiff and Appellant, v. STATE of Utah, Jordan School District, and Christine Sa

HOWE, Justice:

Plaintiff Shawn Shunk appeals from a summary judgment dismissing his complaint for failure to file a notice of claim with defendant Jordan School District as required by Utah Code Ann. §§ 63-30-11 and -13 of the Utah Governmental Immunity Act.

FACTS

The facts are undisputed. On March 13, 1987, Shunk, a seventeen-year-old high school student, was seriously injured when defendant Christine Savage, an employee of Jordan School District, allegedly drove a school bus over his foot. On July 6, 1987, Shunk's counsel timely filed a notice of claim with the state office of education and the attorney general's office. The notice included a request for assistance in the event that Shunk had not notified the proper governmental entities. He received no response, however, from either office regarding the adequacy of his notice.

On July 28, 1988, Shunk filed an action against the State of Utah, Jordan School District, and Christine Savage for his personal injuries ( Shunk I). The complaint alleged, "Plaintiff has complied with the requirements of [sections] 63-30-11 and [-]12, Utah Code Annotated 1953 as amended, by sending written notice of his claim to the state of Utah and the agency concerned herein within one year after his claim arose." The attorney general's office answered Shunk's complaint on behalf of all named defendants and admitted this allegation but asserted an affirmative defense that "[p]laintiff has failed to comply with the Governmental Immunity Act, Utah Code Ann. 63-30-1 et seq." On September 26, 1990, the trial court dismissed Shunk I without prejudice, apparently due to Shunk's failure to prosecute.

Subsequently, Shunk commenced the present action with new counsel ( Shunk II). His new complaint alleged compliance with the notice of claim requirements in wording identical to the complaint in Shunk I. This time, however, defendants admitted only that notice had been sent to the state office of education. They also asserted as an affirmative defense that "[d]efendants are immune or this action is barred by virtue of the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-1, et seq. including, without limitation, § 63-30-3, -4 and -10."

Defendants later moved to dismiss the complaint on the basis of plaintiff's failure "to properly serve a Notice of Claim under Utah Code Ann. § 63-30-11(2) and § 63-30-13 (1989)." Specifically, defendants argued that Shunk was required, as a prerequisite to bringing suit, to file a notice of claim with the governing body of Jordan School District. Inasmuch as he filed his notice only with the state office of education, defendants maintained that his claim was barred. The trial court agreed and entered summary judgment in favor of defendants on the basis of its determination that "[p]laintiff failed to comply with the statutory notice of claim requirements found within Utah Code Ann. §§ 63-30-11, -13 (1993), requiring that notice of claim be filed with Jordan School District, the defendant political subdivision." Shunk appeals.

The trial court treated defendants' motion to dismiss as a motion for summary judgment because the parties raised matters outside of the pleadings. See Utah R.Civ.P. 12(b), 56(c).

We note at the outset that summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993). Inasmuch as summary judgment by definition involves only questions of law, we accord no deference to the trial court's legal conclusions but instead review them for correctness. East Jordan Irr. Co. v. Morgan, 860 P.2d 310, 312 (Utah 1993).

At the time of Shunk's accident, section 63-30-13 provided:

A claim against a political subdivision, or against its employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises, or before the expiration of any extension of time granted under Section 63-30-11(4).

Utah Code Ann. § 63-30-13 (emphasis added). Section 63-30-2(2) defines "political subdivision" to include any "school district." Thus, section 63-30-13 required Shunk to file his notice of claim with the governing body of Jordan School District within one year, which he concedes that he failed to do.

While "governing body" is not specifically defined in the Utah Governmental Immunity Act, at the time of Shunk's accident, rule 4 of the Utah Rules of Civil Procedure specified that service of process must be made on a local "school district . . . by delivering a copy thereof to the president or clerk of the board." Utah R.Civ.P. 4(e)(7) (1986).

Shunk attempts to avoid the dismissal of his action under section 63-30-13 by contending that defendants (1) are bound by their prior admission in Shunk I that Shunk had complied with the notice of claim requirements of the Act, and (2) are estopped from changing their position on whether he complied with the notice requirements.

It is unnecessary for us to determine when, if ever, an admission made in a prior case which is later dismissed without prejudice is binding on the parties in a subsequent case. This is because the admissions that defendants made here, even if binding, do not cure the deficiency in plaintiff's case. We begin by analyzing the allegation in plaintiff's complaint in Shunk I that "plaintiff has complied with the requirements of section 63-30-11 and -12, Utah Code Ann. (1953 as amended) by sending written notice of his claim to the state of Utah and the agency concerned herein within one year after his claim arose." In defendants' answer to the complaint, they admitted this allegation. Section 63-30-11 prescribes the required content of a notice of claim. Defendants do not contend that Shunk's notice of claim failed to comply with that section. The claim was in the proper form and contained the required information.

Defendants also admitted that Shunk complied with section 63-30-12. That section provides that if the claim is against the State or its employee, the notice of claim must be filed with the attorney general and the agency concerned. Plaintiff chose to make the State of Utah a defendant in the action and had timely filed a notice of claim with the state attorney general and the state department of education. The State has not retreated from its admission that plaintiff had complied with sections 63-30-11 and -12.

Plaintiff's difficulty is that he did not allege in his complaint in Shunk I that he had complied with section 63-30-13, which requires that when a claim is against a political subdivision or its employee, a notice of claim must be filed with the governing body of the political subdivision. Section 63-30-2(2) defines "political subdivision" to include any school district. Since plaintiff was injured by the alleged negligent driving of Christine Savage, who was an employee of Jordan School District, he was obligated to file a notice of claim with the governing body of that school district. Cf. Bellonio v. Salt Lake City Corp., 911 P.2d 1294 (Utah Ct.App. 1996) (dismissing action by pedestrian injured in airport parking terrace for failure to serve governing body of city). Since plaintiff did not file a notice of claim with Jordan School District and did not allege in his original complaint that he had done so, defendants' admission in Shunk I in their answer to the complaint does not aid plaintiff in his pursuit of Jordan School District. Plaintiff's failure to file a notice of claim with Jordan School District is perhaps the reason that defendants, in answering the complaint, admitted plaintiff's compliance with sections 63-30-11 and -12 but asserted as an affirmative defense that "[p]laintiff has failed to comply with the Governmental Immunity Act, Utah Code Ann. 63-30-1 et seq."

Shunk's reliance upon Forsman v. Forsman, 779 P.2d 218 (Utah 1989), is misplaced. In that case, an agency of the state gave erroneous information to a claimant which prevented her from timely filing a proper notice of claim with the appropriate state agency. Cf. Bischel v. Merritt, 907 P.2d 275 (Utah Ct.App. 1995). That did not occur in the instant case. Here the State gave Shunk no misinformation. His counsel simply did not follow the clear statutory requirement of section 63-30-13.

Shunk points out, however, that the notice of claim which he filed with the state department of education and the attorney general contained a request for assistance in the event that Shunk had not notified the proper governmental entity. Where the statutes are clear, as in this case, as to the requirement for serving a notice of claim on a political subdivision, we cannot require and the statutes do not require that the state or its subdivisions promptly notify claimants of deficiencies of the notice of claim so as to allow them an opportunity to timely rectify their error or deficiency.

It follows from the foregoing that there is no basis to invoke an estoppel against defendants for misleading plaintiff by their answer in Shunk I. As we have pointed out, plaintiff did not allege compliance with section 63-30-13, and defendants did not admit such compliance in their answer. In fact, defendants, by asserting the affirmative defense of noncompliance with the Act, gave notice that something remained to be done by plaintiff.

Finally, Shunk contends that defendants, in preparing and filing their answer to his complaint in Shunk I, failed to comply with the requirements of rule 9(c) of the Utah Rules of Civil Procedure. That subrule provides:

(c) Conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity and when so made the party pleading the performance or occurrence shall on the trial establish the facts showing such performance or occurrence.

Shunk asserts that this subrule required defendants, in their answer, to specifically deny that the notice of claim had been properly served on Jordan School District. He argues that had the denial in the answer been specific, he could then have corrected the deficiency. We disagree. Plaintiff did not allege in his complaint that "all conditions precedent have been performed or have occurred." He only pleaded that he had complied with sections 63-30-11 and -12. As we have already pointed out, defendants admitted that allegation. That is all they were required to do. They were not obligated to deny compliance with section 63-30-13 when plaintiff had not alleged such compliance.

Judgment affirmed.

ZIMMERMAN, C.J., and STEWART, Associate C.J., and DURHAM and RUSSON, JJ., concur in the opinion of HOWE, J.

SHUNK v. STATE