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Conner v. Department of Commerce

Court of Appeals of Utah

May 23, 2019

Rebekah Conner, Appellant,
v.
Department of Commerce, State of Utah, and Francine Giani, Appellees.

          Third District Court, Salt Lake Department The Honorable Matthew Bates No. 130907251

          C. Reed Brown and Elizabeth B. Grimshaw, Attorneys for Appellant

          Kristin A. VanOrman, S. Spencer Brown, and Ashley F. Leonard, Attorneys for Appellees

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          OPINION

          HAGEN, JUDGE:

         ¶1 Rebekah Conner appeals from a dismissal of her wrongful termination claim. The last business day before trial, the Department of Commerce, State of Utah, and Francine Giani (collectively, the Defendants) filed a motion for judgment on the pleadings under rule 12(c) of the Utah Rules of Civil Procedure, asserting that they were immune from suit due to governmental immunity. The district court deferred consideration of the motion until after trial. The jury found the Defendants liable for wrongful termination and awarded Conner $240, 000 in damages. After trial, the district court granted the rule 12(c) motion on the ground that the claim tried to the jury-wrongful termination in violation of public policy-is a tort claim for which the government has not waived immunity. The court rejected Conner's argument that her amended complaint could be reasonably read to state a statutory claim for wrongful termination. The court also denied Conner's subsequent motion under rule 15(b) of the Utah Rules of Civil Procedure to amend the pleadings to reflect that claim. Accordingly, the court vacated the jury's verdict for wrongful termination and entered judgment on the pleadings, effectively immunizing the Defendants from the jury's verdict.

         ¶2 We conclude that the district court properly entered judgment on the pleadings. Even when construed in the light most favorable to Conner, her amended complaint did not state a viable statutory claim for the simple reason that the statute on which she relies does not provide for a private right of action. For that same reason, the district court also properly denied Conner's motion to amend the pleadings to state such a non-existent cause of action. We further conclude that the Defendants did not waive their governmental immunity defense and that the district court did not exceed its discretion when it chose to entertain the Defendants' rule 12(c) motion filed on the eve of trial. Finally, Conner did not preserve her procedural due process claim below and does not argue an exception to preservation on appeal. Therefore, we affirm the district court's judgment on the pleadings.

         BACKGROUND

         ¶3 Conner sued the Defendants after she was fired in 2013 from her job at the Department of Commerce. Conner had served as the administrative assistant to the director, Giani, for eight years. As a schedule AD employee in a confidential relationship with and reporting directly to the department head, Conner was exempt from the career service provisions of the Utah State Personnel Management Act (USPMA).[1] Utah Code Ann. § 67-19-15 (LexisNexis 2013).[2] According to Conner, Giani did not like or trust the leadership of the Utah Attorney General's Office, where Conner's husband worked as a special agent. Conner claims that she was fired "based on Giani's troubled relationship with the A.G.'s office and the mere fact that Conner's husband was employed there."

         ¶4 This appeal relates to the first cause of action alleged in Conner's amended complaint.[3] Conner titled this cause of action as "Wrongful Termination Against Public Policy (Vindication of Rights Created by Statute to be Free from Discrimination on the Basis of Political Affiliation or Other Nonmerit Factor)." Conner cited Utah Code section 67-19-18(2) of the USPMA and rule R477-2-3(2) of the Utah Administrative Code, both of which provide that an employee may not be dismissed because of "political affiliation." Conner alleged that the statute and rule reflect a substantial public policy against terminating an employee based on political affiliation, which the Defendants violated by firing Conner based on her husband's employment. She also alleged that she "has a statutory right to be free from discrimination on the basis of political affiliation."[4]

         ¶5 The Defendants filed an answer to the amended complaint alleging two immunity-based affirmative defenses. The thirteenth defense stated that Conner's claims were "barred by the doctrines of absolute and qualified immunity." The fourteenth defense stated that Conner's claims were barred because she had "failed to comply with the applicable requirements of the Governmental Immunity Act" (GIA). Although the Defendants later withdrew the fourteenth defense concerning whether Conner had complied with the requirements of the GIA, they did not withdraw the thirteenth defense.

         ¶6 The Defendants did not move for judgment based on their immunity from suit prior to the pretrial motion deadline. The district court denied the Defendants' motion for partial summary judgment based on other grounds, and the case was set for trial.

          ¶7 One business day before trial, the Defendants filed a rule 12(c) motion for judgment on the pleadings, arguing that Conner's wrongful termination claim was barred by governmental immunity. See Utah R. Civ. P. 12(c). Specifically, the Defendants argued that Conner's first cause of action was a tort claim for wrongful termination in violation of public policy for which governmental immunity had not been waived.

         ¶8 Conner moved to strike the motion for judgment on the pleadings, arguing that it was untimely and that the governmental immunity defense had been waived and abandoned by the Defendants. The district court requested briefing on the rule 12(c) motion but did not continue the trial. The district court "made it clear that [it] was deferring on ruling on the motion and that [it] . . . would rule on the motion after trial."

         ¶9 The jury returned a verdict in favor of Conner, finding that Conner was terminated due to her political affiliation and awarding her $240, 000 in compensatory damages.

         ¶10 After full briefing post-trial, the district court heard argument on the rule 12(c) motion. The district court recognized that it "could have denied this motion for being untimely" as the motion "was filed literally on the eve of trial." Although the court observed that governmental immunity "should have been raised in a 12(b)(6) or in a 12(c) [motion] right after the answer was filed," it elected to entertain the motion because of the "importance of the issues raised in the motion" and because, when suing a governmental entity, a plaintiff is "responsible for understanding [governmental immunity], knowing it, preparing for it, [and] arguing alternative causes of action." On the merits, the district court construed Conner's amended complaint to assert "a wrongful termination tort" for which governmental immunity had not been waived under the GIA. Accordingly, the court granted the Defendants' motion for judgment on the pleadings.

         ¶11 In its oral ruling from the bench, the district court indicated it was vacating the jury's verdict. In a subsequent written ruling, however, the court concluded that vacating the jury's verdict was "unnecessary and improper." The court explained,

The question of governmental immunity was not put to the jury. Rather it was reserved for judgment by the Court on the pleadings. Because the jury never decided the issue of governmental immunity, there is no reason to vacate the jury's verdict with respect to the first cause of action. Instead, the jury's verdict stands and the Court's order has the effect of immunizing [the] Defendants from the verdict and dismissing the cause of action.

         ¶12 Conner subsequently filed a rule 52(b) and 59 motion to alter or amend the judgment and for a new trial, along with a rule 15(b) motion to amend the pleadings to conform to the evidence at trial. See Utah R. Civ. P. 52(b), 59(a)(7), 15(b)(1). Conner argued that her wrongful termination claim could be construed either as a claim sounding in tort, which would be barred by governmental immunity, or as a statutory enforcement claim. Conner argued that in granting the Defendants' rule 12(c) motion, the district court erred in not construing the pleadings more liberally to include a claim that she was terminated in violation of a statutory right. In the alternative, she argued that such a statutory enforcement claim was tried by implied consent and that the pleadings must be amended under rule 15(b) to reflect the claim actually tried to the jury. The court denied Conner's motions, concluding that the "pleadings correctly reflect the claim that was actually tried to the jury: wrongful termination in violation of public policy," which was "a tort claim of wrongful termination."

         ¶13 Conner appeals the district court's grant of the Defendants' rule 12(c) motion, which resulted in the dismissal of the wrongful termination claim, and the denial of her rule 15(b) motion, in which the court refused to amend the pleadings to include a claim of statutory enforcement.

         ISSUES AND STANDARDS OF REVIEW

         ¶14 Conner makes two related arguments as to why her first cause of action should not have been dismissed. She argues, first, that the district court erred in granting the Defendants' motion for judgment on the pleadings under rule 12(c) of the Utah Rules of Civil Procedure, and second, that the district court erred when it declined to amend the pleadings to conform to the evidence presented at trial under rule 15(b) of the Utah Rules of Civil Procedure. Specifically, she argues that the district court should have either construed her amended complaint or amended the pleadings to assert a statutory cause of action that could survive the affirmative defense of governmental immunity. Both issues require us to consider the threshold question of whether such a statutory cause of action exists. "Whether a particular statute provides a private right of action is a question of statutory interpretation," Buckner v. Kennard, 2004 UT 78, ¶ 41, 99 P.3d 842, which we review for correctness, Marion Energy, Inc v. KFJ Ranch P'ship, 2011 UT 50, ¶ 12, 267 P.3d 863.

         ¶15 Next, we address Conner's contention that the Defendants should have been precluded from raising the affirmative defense of governmental immunity on the eve of trial. "We review the trial court's findings of fact for clear error and its conclusions of law for correctness." Hart v. Salt Lake County Comm'n, 945 P.2d 125, 132 (Utah Ct. App. 1997). We review the district court's interpretation and application of the rules of civil procedure for correctness and will reverse only if the appellant shows "error that was substantial ...


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