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Zemlicka v. West Jordan City

Court of Appeals of Utah

February 7, 2019

Norma Zemlicka, Appellant,
v.
West Jordan City, Appellee.

          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 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 In effect, the now-superseded version of section 601 put the cart before the horse, requiring the court to fix the amount of an undertaking in an action before that action had even been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. 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. § 63G-7-601(2) (LexisNexis 2016). The district court granted West Jordan City's motion and dismissed 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 ...


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