*1
elude from these exclusions and omissions
CONCLUSION above, For the reasons forth set 10—504(3)
hold that Utah Code section 76—
operates as an enhancement of the offense of carrying weapon,
unlawful of a concealed charges against
that the Smith under Utah aggravated
Code section 76-5-103 for assault merge charge
therefore do not un- 76-10-504(3).
der Utah Code section
affirm appeals’s holding the court of on that However,
issue. we reverse the court of
appeals’s remand for new trial because we
conclude that Utah section 76-10-
504(3) require prove does not the State to
defendant’s lack of a weapon per- concealed crime,
mit as an element of the
Smith’s counsel was therefore not inеffective. WILKINS, 23 Associate Chief Justice DURRANT, PARRISH,
Justice Justice
Justice NEHRING concur in Chief Justice opinion.
DURHAM’S assertion, Citing authority Fretwell, support no of his 506 U.S. 113 S.Ct. argues Smith that the actual L.Ed.2d 180 we conclude that a defen- 76-10-504(3) ques- are irrelevant to the prejudice prong dant cannot meet the of an inef- tion of whether his counsel was ineffective be- by relying fective assistance of counsel claim instruсtions, juiy cause the rightly whether statutory interpretation appellate wrongly, clearly placed the burden on the State incorrect, recognizes as even if the trial court prove weapon Smith lacked a valid concealed interpretation relied on that erroneous in formu- permit. explained by reasons lating jury instructions. Supreme the United States Court in Lockhart v. *2 Smith, Rasmussen, Benjamin
Brad C. C. Ogden, plaintiff. " Johnson, Preston, Stanley J. Camille N. Wolferts, Maralyn Reger, Og- Judith D. M. den, for defendant.
DURHAM, Chief Justice:
¶ Plaintiff,
Canfield, appealed
Machelle
rule
dismissal
the district court’s
wrongful
her
de-
termination action
fendant,
City,
subject mat-
for lack of
af-
ter
court of
firmed, noting
the notice of
that adherence to
Im-
requirement
Governmental
munity
(GIA),
Code Ann.
Act of Utah
prerequisite
§§
-802
ais
63-30d-101
juris-
to a
court’s assertion
Layton City,
diction. Canfield
228U, 2,
The court
er the court of plead complaint was insufficient to a breach contract claim. We conclude that indicated a breach Layton City’s of contract claim withstand 12(b)(1) motion. We therefore reverse the the district and remand to amend her com- allow Canfield to plaint to a more definitе statement of her breach of contract
BACKGROUND Layton City as worked for 3 Canfield years. police dispatcher for over thirteen her Approximately prior to al- six months termination, leged was as- wrongful ultimatum, instead, signed supervisor. supervi- a new Her new en an but were leave, employee warnings, probation, use of and othеr questioned often sick sor punishment. ultimately resigna- led specifi- tion. policy 17. Defendant’s cally require[s] that Plaintiff *3 ¶4 resignation, After her Canfield filed fairly any punishments or disci- in, employer against her suit former state pline given proportionate her be to to the Layton City removed the to case alleged. punishment offense Defendant’s assumption court that federal on the Canfield Plaintiff, including its termination of asserting protection an claim. The equal was her, disproportionate al- to the acts court Canfield to file a federal ordered sec- leged, even if the acts were taken as true. complaint specifically to ond amended idеnti- ¶ Upon commencement of the second fy federal of action she was cause assert- action, City Layton a filed motion to dismiss amend, ing. Canfield to and declined her 12(b)(1) pursuant to rule of the Utah Rules of case was dismissed. on Civil Procedure the basis that Canfield immediately refiled the same Canfield requirement failed to adhere to the notice complaint complaint state court. The GIA, 63-30d-401, § citing the case id. our states, part: in relevant law for proposition “[cjompliance that supervisor] unfairly 5. new un- [The and prerequisite vesting with the a [GIA] is to justly performance work scrutinized the subject jurisdiction district court with matter Plaintiff. entities,” over claims McPherson, 16, 9, Wheeler v. 2002 UT believes, 13. Plaintiff and P.3d 632.1 is informed and thereupon alleges, employ- that numerous opposition Layton City’s In motion [Layton] City ees of have used sick leave dismiss, contended “com- Canfield that her in the same as Plaintiff but have manner plaint alleges a constructive termination and subject disciplinary pro- not been City’s Layton employ- violation of written ceeding Accordingly, whatsoever. Plaintiff including pro- ment regarding rules rules differently has been from portionality employee discipline, re- rules severely more than other termination, lating consistency among Defendant, all in contravention Defen- related Canfield matters.” further noted policy. dant’s writtеn complaint that because her “sounds in con- Officers, 14. employees, agents or ser- tract,” subject her claim is not to the GIA’s vants of Defendant confronted Plaintiff requirement. notice See Utah Code allegation that Plaintiff misused § 63-30d-301.2 gave sick leave and her ultimatum that ¶ Rejecting argument, the dis- City resign she from the face termi- trict granted сourt motion to nation. subject juris- dismiss based on lack matter affirmed,
diction. The con- cluding 16. Plaintiff reading is informed believes and that “[e]ven [did] liberal thereupon alleges permit that said not complaint alleg- individuals to view the [it] as severely ing have punished implied contract, given not been as as she a claim based has, terminated, giv- backdrop have not been or not case law suggesting that consistently though 1. Even tract Canfield refers to claims is found Utah Code section 63- 12(b)(6) Layton City's GIA, aas motion revising motion for Legislature 30d-301. In failure to state a the record makes clear gov- previous indicated that its intent version reviewing are motion to dis- allegation injury ern an bеfore occurred miss for lack of 3, 2004, 267, 48, July 2004. Act of Mar. ch. 2004 Utah Laws because complaint, At the time her Canfield filed provision substantively the new identical applicable provision was found at Utah Code version, previous provision we refer to the new 63-30-5(1) (2002). The GIA has since here for the sake of convenience. provi- been amended and renumbered. The new waiving requirement sion the notice for con- ¶ Here, rights gener- employees’ employment contends ‘public requirement applicable legis- notice because not but from ally spring ” did not a valid contract claim Canfield assert Canfield, 228U policy.’ lative City argues complaint. in her ¶at 3. identify any fails face to on its certiorari, argues 9 On obligation Lay- contract or contractual with sufficiently asserted a claim and, further, ton that Canfield’s claims breach of employ- cannot be contractual because her therefore and that she was was, relationship Layton City as a ment requirement of the GIA. law, rather 'governed matter of statute disagree on points.
than contract.3
both
STANDARD OF REVIEW
*4
¶
required,
A plaintiff
14
is
under
pleading,
our liberal standard of
¶
certiorari,
10 On
“we review
plain
...
submit a “short and
for
appeals’ decision
correctness.”
court of
showing
pleader
is
to relief’
entitled
¶10, 5,
Finlayson, 2004 UT
84 P.3d
State v.
judgment
“a demand
relief.”
and
for the
must
whether the court
1193. We
determine
8(a)(l)-(2).
R.
plaintiff
Utah
Civ. P.
The'
accurately reviewed
decision of
appeals
of
only give
must
the defendant “fair notice
appropriate
“under the
the district court
grounds
the nature
basis or
of the claim
Visser,
v.
2000
State
standard
review.”
general
litiga
the type
and a
indication of
¶
88,
9,
22 P.3d
Jurisdictional
UT
involved.”
v.
tion
Williams
State Farm Ins.
subject
jurisdic
questions, such as
matter
(Utah 1982) (internal
Co.,
966,
656 P.2d
971
tion,
Finlay
are reviewed for correctness.
omitted). Furthermore,
a
quotation
“when
¶ 5,
son,
10
P.3d 1193.
2004 UT
84
general language
complaint states a claim
allegations
vague
but the factual
are so
ANALYSIS
ambiguous that
the defendant cannot draft
answer,
proper
an
course of action is to
before this court is
The issue
for a
under
move
more definite statement
complaint stated a claim
whether Canfield’s
12(e),
Whip
not to
rule
move for dismissal.”
con
for breach
an
Co.,.
Irrigation
Am.
P.2d
ple v.
Fork
910
require
the notice
tract sufficient to avoid
1996).
(Utah
1218, 1222 n. 3
a
Motions for
of the GIA.
ment
statement, however, are not
more definite
favored,
only
grant
generally
and should
be
¶
requires
a
12
notice of
The GIA
“indefinite,
is so
am
ed when
governmental entities
claim to be
vague
alle
biguous,
[its]
or
in either
factual
year
arising.
claim
Utah
within one
of the
theory
legal
or
...
gations
[its]
30d—401(2),
§§
It is well
-402.
63—
reasonably
moving party
required
cannot
comply precisely
that failure to
established
responsive pleаding.” Liquor
his
to frame
requirement,
applies,
the notice
it
where
Athas,
457,
121
243
v.
Utah
Control Comm’n
subject
jurisdic
deprives the
matter
441,
(1952).
443
P.2d
Auth.,
tion.
v.
Transit
2001
Greene
Utah
¶ 16,
109,
¶
Here,
UT
37 P.3d
15
conclude
while Can-
“Mo
arising
rights
contractual
or obli
tions
out of
that an
vague
is
field’s
warranted,
gations
are not
to the
it
outline
Order to amend is
does
§
disagree
Code Ann.
63-30d-
[the GIA].”
Utah
of contract claim.
a breach
301(l)(b). Therefore,
plaintiff
asserts
appeals’
who
conclusion that
employment rights
public
enti
em-
a contract
because
generally spring
legislative poli-
ty
ployees
need not file a notice of claim in order
impossible
cy,
it is
to discern
vest
court with
Smith,
argu-
petitions.”
Layton City's
Coulter
Ltd.
do nоt
other
sues
&
3. We
consider
raised
(failure
Russell,
852,
(Utah 1998).
remedies
ments
to exhaust administrative
More-
v.
966 P.2d
"[rjeview
judicata)
over,
certiorari
and res
because
on
arguments
Layton City did not raise these
appeals'
examining
limited to
the court of
before
district
in its
motion
by
and is
the is-
decision
further circumscribed
conclusion,
implied
reaching
claim in
19 In
this
contract
the court
complaint.
impact
County
reviewed
(CPMA),
Management
Personnel
Act
that, generally,
16 It is .true
em
§§
Code Ann.
17-33-1 to -15
public
“governed
ployment of
[a][c]ounty’s responsibility
“sets forth
to es-
statute,
by
not contract.” Buckner v. Ken
management.”
tablish
office
nard,
¶32,
(citing
99 P.3d
UT
¶ 12,
Knight,
App
100 at
46 P.3d
UT
Knight
County,
v. Salt Lake
247. The
states
CPMA
the office of
¶ 9,
247;
Dep’t
v.
46 P.3d
Horn Utah
of personnel management
“design
shall
and ad-
(Utah
Safety,
Ct.App.
Pub.
962 P.2d
county pay plan
minister a
that includes sala-
1998)). However,
recognized
court has
this
ries,
incentives,
leave,
wages,
bonuses,
insur-
gov
exist where “the
circumstances
ance, retirement, and other benefits.” Utah
voluntarily
ernment
undertakes an additional
(e)(i).
Code Ann.
17—33—1
Based
duty” beyond
obligation
its normal
provided by
language,
directions
this
employee,
“in
which case
the court
em-
concluded that
(citing
Id.
arises.”
Piacitelli
S. Utah State
ployment-related policies
county
set
forth
(Utah 1981)).
Coll.,
1063, 1066
636 P.2d
“required
documents
were
controlled
Management
the Personnel
Act
its im-
previously
17 We havе
observed that an
*5
plementing regulations.” Knight, 2002 UT
implied
may
variety
from
contract
“arise
of
¶ 15,
Thus,
App 100 at
ployees to be “treated PARRISH, and Justice NEHRING concur punishments discipline given [them] opinion. Chief Justice DURHAM’S alleged.” In the proportionate offense Canfield claims that she paragraph, sаme Justice, WILKINS, Associate Chief required by in the manner was not treated dissenting: Thus, policy. own Can- fairly complaint may be construed as field’s I I 26 dissent. believe that the court voluntarily Layton City under- claiming that ruling appeals correctly affirmed the duty additional ensure took an dismissing trial Ms. com- —to to the offense punished proportion plаint against Layton lack of uniformity with the treatment alleged and Layton City of other —and reading 27 A com- careful the refiled Although inartfully duty. breached upon plaint relies to raise which Ms. Canfield drafted, thus contains a bare- a cause .for breach of contract fails of action of a bones outline breach any hint of such a claim. Notice to disclose claim.4 here, pleading, practiced requires a short as therefore conclude 23 We plain of the claim. Ms. Can- a claim for sufficiently state allegations complaint provides field’s neither element of an *6 my Layton City. impossible, It is notice requirement there- that the GIA’s notice view, languagе complaint parse However, in apply. order to fore does Layton way rational and conclude provide Layton City more required “fair notice of claim, regard- regarding Canfield’s contract grounds of the claim the nature and basis example, provisions which ing, for litiga- general type and a indication persоnnel policy alleged create the v. Farm Ins. Williams State tion involved.” appropriate di- obligations, we believe it (Utah 1982). Co., P.2d district court to order Canfield to rect the complaint more defi- amend ¶28 ef- opinion, in a Herculean The lead of her nite statement notice, mightily to hint of works fort to find a necessary plain оf a uncover the CONCLUSION noting at the time while same applicable hold under the We vague” to “sufficiently complaint that the law, may municipal employer create an order to amend. I concur warrant an through per- employment contract its complaint vague to warrant policies. complaint Since Canfield’s sonnel However, in rewriting and re-submission. acted contraven- alleges totally being vague, it fails addition to also we personnel policies, conclude tion of in contract. sounding make out complaint a claim for stated inartful. It is The is more than survive a of contract sufficient to insufficient, interpre- under our liberal even dismiss. thеrefore reverse the motion to We pleading. tation of the point. on that dismiss trial court was correct to specify poli- because Canfield fails to did, violated, as it and the court believes were direct the cies she course, views, district court. express avail- raised before the no ability the claim that of other defenses to appeals was also correct to affirm the action I the trial would do the same.
Carolyn MANNING, Petitioner, Roberts Utah, Respondent.
STATE of
No. 20040453.
Supreme Court of Utah.
Sept.