*1 App UT MOUNTAIN MAYFLOWER STICHTING Mayflower Recre FONDS; Investors, Fonds; and Jordan
ational Appellants,
Inc., and Plaintiffs DIS SERVICE SPECIAL
JORDANELLE district of Was
TRICT, special service Utah, Defendant County, State
atch Appellee. 990910-CA.
No. Appeals of Utah.
Court
Sept. 28, 2002.
Rehearing Denied Jan. City, Smay, Appel- Craig
E. Lake Salt lants. Howe, Craig H. Bal- Gaylord R.
Mark lard, Ingersoll, Lake Andrews & Salt Spahr, City, Appellee. BENCH, BILLINGS, Judges
Before THORNE.
OPINION BENCH, Judge: "Investors") ap (collectively Plaintiffs dismissing their peal the trial court's order not proper summons had because a thirty-day time within the been served § 17A-8-229 Ann. Utah Code affirm. We *2 BACKGROUND motion, orandum on its Jordanelle asked the quash court to the second summons because property Investors are owners within copy of the summons was not the boundaries of Spe Defendant Jordanelle signed. argument, At oral argued Investors (Jordanelle). Improvement cial District In that the second summons proper was 1999, be passed Jordanelle levying an ordinance copy cause the of the summons attached to against an assessment properties certain the sheriffs return of service district, signed. within its including property owned hearing After argument Investors, on validity pay sewage system im summonses, and second provements. Judge Ray Har The effective date of the ordi ding, Sr. quashed 3, both February nance was Inves February 1999. On directed tors 25, 1999, to re-serve Jordanelle complaint Investors filed a accordance dis with the Utah Rules Procedure. challenging trict court the assessment. On Civil day, the same Investors served a following the hearing, In Immediately (first summons) copy on complaint vestors served Jordanelle with a third sum Jordanelle. April 28, mons on 1999. While disputing the ¶ 3 After being served with the first sum validity of summons, the third Jordanelle mons, Jordanelle Quash filed a Motion to responded by renewing its Motion to Dismiss Summons and Dismiss Action. Prejudice Action With ground on the that argued that the first summons should be section 17A-3-229 divested the court of au quashed because it failed"to state either that thority to hear the case because a proper complaint is on file the court or that summons had hot been 'served within will be filed with the court days of the ordinance's effective date. Prior days within ten of service." Utah R. Civ. P. to a hearing motion, on the Investors served argued Jordanelle also that if the a fourth 26, May 1999, summons on which quashed summons, the first it should concedes was sufficient but not also dismiss the action because Investors' timely. The Motion to Dismiss was thereaf failure to serve a valid summons ter argued Judge Lynn Davis, who dis days of the ordinance's effective date ren pursuant missed the case provisions to the dered the matter incontestable under section section 17A-3-229. appeal followed. | 17A-83-229. responded Investors by arguing that ISSUES AND STANDARDS OF REVIEW the first summons quashed should not be complied because it Form of the Utah ¶ 7 We must consider whether Rules of Civil Procedure and because inclu Judge Davis properly dismissed Investors' sion assigned case number on the face 12(b)(6) of the Utah put Jordanelle on notice that Rules of Civil presents Procedure. This an action had been commenced. question of law that we review correct also the action should not be ness. See Larson City v. Park Mun. Corp., dismissed because section "simply (Utah 1998). 955 P.2d In reviewing establishes a limitation for commence Judge Davis's dismissal of the we action," ment of the and does not "alter" the must review interpretation his of section Utah Rules of Civil respect Procedure with 17A-8-229. Issues of interpreta to the time limits for serving a summons. questions tion are of law that we review for ¶ 5 In addition to defending validity Fixel, correctness. See State v. 945 P.2d (Utah the first Ct.App.1997). Furthermore, re served Jorda- (second nelle with another sum view of the requires dismissal also us to mons) on March reply 1999. In its mem review Harding's decision to 1. The record reflects that Investors believe supported by tion is the fact that Harding quashed only the first summons. How- directed Investors to serve a new summons after ever, plain language Judge Harding's or- hearing arguments validity on the of both the quashed multiple der just "summonses" and not first and second summonses. one language summons. This interpreta- process commenced[,]" service of Live Whether the action is Wasatch
first summons.2
Court, 86 Utah
Loan Co. v. District
question of law that we
stock
presents
(1935),
422, 423,
Rule 4 of
Bill
See Bonneville
for correctness.
review
requires
Rules of Civil Procedure
the Utah
Whatley, 949
ing v.
either that
that a summons "shall state
App.1997).
Ct.
*3
or that the
complaint is on file with the court
filed with the court within
complaint will be
ANALYSIS
4(c)(1)
P.
days
Utah R.
ten
of service."
Civ.
17A,
governed by section
This case is
added).
(emphasis
chal
that an action
3-229,
requires
which
proceeding in a
or
an assessment
lenging
requirements
unqualified
Despite the
"must be com
district
special improvement
4(c)(1),
argue that section
of Rule
Investors
...
must
served
effectively
option
summons
eliminates the
menced and
17A-3-229
days
date
after the effective
than 30
later
commencing
of a sum
an action
service
not
17A-3-229(2)(em
§
Id.
of the ordinance."
copy
complaint,
unfiled
mons and a
added).
In accordance with estab
phasis
unnecessary
thereby making
to indicate on
it
construction,
rely
we
rules of
lished
com
how the action was
17A-3-
language of section
only
plain
on
this issue was
menced.
contends
ambigu
statutory language is
review of the record
unless
preserved,
not
but our
Bd.,
Ret.
v. Utah State
ous. See
preserve
that Investors did
the is
indicates
O'Keefe
(Utah 1998).
find the
We
P.2d
by raising
the trial court. See
sue
it before
Co.,
unambiguous,
statutory language to be
Empire Dev.
Franklin Fin. v. New
argues
otherwise.
party
1983)
neither
("For
question
a
appeal that the
in
brief on
concede
appeal,
record must
considered on
to be
appears
of the statute
"proper construction
timely presented to
show that it was
requires filing
complaint
it
to be that
in a manner sufficient
ob
together
within
service
summons
..").
ruling
a
thereon..
tain
(30) days
after the ordinance." We
¶ 11 Although preserved,
Investors'
plain language of the statute
agree. The
First, appli
argument fails for two reasons.
and a
action be commenced
requires both an
17A-3-229 does not elimi
cation of section
days
be served within
summons
commencing an action
option
nate the
date
effective date. The effective
ordinanece's
challenging
party
A
service of a summons.
February
challenged here is
of the ordinance
ample
like this one has
time to
an ordinance
commenced an action
1999.
file a
ten
serve a summons and
thirty days by filing
a
later,
thirty-day
days
and still be within the
February
In
court on
1999.
the district
Because
time
the statute.
served the first summons
vestors also
plain language of
17A-8-229 does
served,
Although timely
we must
day.
same
Rule 3 alternative for
not eliminate either
summons was valid.
whether the first
decide
commencing
plaintiff
pro
must
a
currently
alternatives
Utah
allows two
party being
notice of
vide the
served with
First,
party
a
commencing an action.
commenced.
how the actionwas
by filing a
an action
com
commence
¶ 12 Second, regardless
practical
P.
court.
R. Civ.
plaint with the
See Utah
S(a)(1).
necessity
indicating how the action was
Alternatively,
party may com-
a
commenced,
plain language of section
by serving a
to
menee an action
special
provide
not
for a
complaint,
17A-8-229 does
gether
copy
of an unfiled
ten
complaint must be filed within
require
which
alters the Rule
summons that
survey
A brief
of the Utah Code
See Utah ments.
days after service of
summons.
8(a)(2),
legislature knows how to
notify
party
shows that
To
R. Civ. P.
precise
in
being
"the
manner which
change
requirements
served
Rule 4
for a sum-
§
terpretation
Utah Code Ann.
17A-3-229
Although Judge Harding
quashed the sec-
also
2.
second,
third,
ond
analysis
unnecessary given our in-
fourth summonses
See,
(2)
eg.,
it so desires.
Any
Code
provided
for in Subsection
§
(§upp.2000)
Ann.
107-70
(1)
(establishing
must be commenced and- summons
alleged corporate
summons for
violation of
must be
...
not later
days
than 30
city ordinance);
Utah Code Ann.
78-4-4
after the effective date of the ordinance
(1989)
(establishing
for water
levying assessments
special
im-
action).
rights
explicit
Without an
change by
provement district.
...
legislature,
language of section
(3)
expiration
After the
of the 80-day peri-
interpreted
must be
requiring
provided
od
in this section:
regular
summons that complies with Rule
(a)
special
improvement bonds is-
Edwards,
See Berrett v. Purser &
sued or to be
against
issued
the district
(Utah 1994) ("A
cardinal
rule of
and the assessments
levied
the dis-
statutory construction is that courts are not
*4
trict shall become incontestable as to all
to infer substantive terms into the text that
persons who have not commenced the
there.").
already
are not
provided
action
section;
in this
¶ 13 Investors'
first
indisputably
(b)
enjoin
no swit to
the issuance or
did not contain
required
the
statement
indi
payment
bonds,
of the
levy,
the
collec-
cating
that the
had been filed with
tion, or
of the assessment,
enforcement
the court.
See Utah R. Civ. P.
In
any
or in
other manner attacking or
following
stead of
requirements
the
of Rule
questioning
legality
of the bonds or
4,
apparently
followed Form 2. See
may be
instituted
this
Utah R.
P.App.
Civ.
2,
of Forms. Form
assessments
and no court
state,
shall
authority
however, does not contain
required
state
inquire
to
into these matters.
ment indicating
either that a
is on
file or will be filed. See Utah R. Civ. P.
17A-8-229(2)
§
(8)
Id.
added).
to
(emphasis
4(c)(1). Thus,
justified
Investors were not
Jordanelle contends that
the final clause of
relying
2,
upon Form which is "intended for
(8)(b),
subsection
"and no court shall have
Civ,
only."
illustration
Utah R.
P.App. of
authority
inquire
matters,"
into
pre
these
Statement).
(Introductory
Forms
cludes the trial court from inquiring into the
¶ 14 The omission of
mandatory
unless
state
action has been com
required by
ment
Rule 4
menced and a
rendered the first
summons served within
"fatally
defective."
17A-8-2298)(b).
§
Wasatch Live
Id.
Co.,
stock Loan
46 P.2d at
conjunction
399
When read in
(interpreting
with the introduc
earlier
tory phrase
statute that mirrors
(8),
Rule
of
"[a]fter
subsection
4(c)(1));
expiration
Peterson,
30-day
see also Locke
period provided in
v.
415,
1111,
2d
(1955);
Farmers'
section,"
this
the last
clause
subsection
Banking
Bullen,
1,
(8)(b)
Co. v.
62 Utah
217 P.
appears
support
argu
(1923). Therefore,
Judge Harding prop
17A-3-229(8)(b).
§
ment.
Id.
erly quashed the first summons.
¶ 17 However, under established rules
quashing
After
the first summons on
statutory construction,
plain
"[the
lan
May
1999, Judge Harding ruled that In
guage of a statute
whole,
is to be read as a
vestors could serve a new summons under
provisions
and its
interpreted
in harmony
day
4(b).3
provision
Judge
provisions
other
in the same statute."
Harding
not, however,
did
address the fact
¶
Burton,
Lyon v.
19, 17,
2000 UT
3-229(8)(a) Interpreting subsection authority though amend, an (3) even cutting easily all a motion to but responded off validity go rely upon the timely would chose instead to commenced has been render most first summons. too far because (8) superfluous. See language of subsection ¶ result, only motion 20 As a (Utah 1995) Hunt, State motion to Judge Harding was Jordanelle's parts or which renders ("[Alny interpretation summons. Once superfluous inoperative or in a statute words to do quashed the as he had (Quotations and citation is to be avoided." law, controlling case Investors were Therefore, omitted.)). party time- onee a has only untimely summonses. left with court re- the trial ly commenced in exis served summons Without authority over measure tains some tence, requirements of section 17A-3- matter. 229(2) met, had not be Davis could authority, the action. of retained no choice but to dismiss The extent however, requirements of limited (8) (2). Nothing in subsection subsection CONCLUSION (2) requirement subsection eliminates timely, first sum Although Investors' within the allowed be served that a summons fatally it did not defective because *5 Accordingly, if action has 4(c)(1) by stating comply with Rule whether and a summons commenced been filed within a was filed or would be days, gives a
within days. Although retained ten the court authority to consider a the limited trial court authority an amendment of the the to allow amend a defective summons motion to summons, request did not the 4G) Proce the Rules of Civil Therefore, court to do so. 4G). If the trial R. Civ. P. dure. See Utah properly quashed first summons. After the amend, the date of grants a motion court thirty- was the first summons to' the summons relates back the amended 17A-8-229(2) day requirement of section timely served defective sum but date of Therefore, not be satisfied. could mons, thereby satisfying properly the action. Davis dismissed (2). Meyers v. requirement of subsection See Corp., 632 P.2d 881-82 Interwest Accordingly, 1 22 we affirm.
1981)
may
(holding that summons
be amend
has ex
after statute of limitations
ed even
1 23 I
JUDITH M.
CONCUR:
the amended summons
BILLINGS, Judge.
pired, and the date of
of the initial sum
relates back to the date
THORNE,
(dissenting in
.
mons).
result):
an action
commenced
separately
not from
24 I write
to dissent
thirty days
by filing a
by
majority,
principles outlined
nor
defective,
Although
statute.
allowed
case,
I
application to this
but because
timely served.
was also
the first summons
believe that a threshold matter should be
Therefore,
authority
Judge Harding had
principles are ad
resolved before these
motion
the defective
consider a
to amend
question is whether
dressed. The
Jordanelle
Investors, however, failed to
first summons.
object
right
to further
to defects
waived
they
though
file a motion to amend even
process
representing
after
in the service of
a motion
were
on notice
such
prejudice
result
the trial court that no
would
necessary.
In
its memorandum
be
quash
Stichting if the court were to
Quash
support of its Motionto
Summons
summons?
Action,
argued that if the
Dismiss
question in the
quash
I would answer this
court were to
the first
estoppel is a court ere-
affirmative.
Judicial
action should be dismissed because
on the relation
ated doctrine that "focuses
a
impossible
to serve
for Investors
judicial
litigant and the
ship between
thirty days
[a]
summons within the
system."
Estoppel
Am.Jur.2d
and Waiv
Through
representation,
this
Jorda-
§er 85
prevents
"This
par
doctrine
nelle's attorney, either knowingly or mistak
enly,
'playing
ties from
"fast and loose" with
lulled the trial judge
viewing
into
blowing
court or
"hot and
during
cold"
the matter as a
procedural
minor
wrinkle that
litigation.'"
Marcos,
course of
could be resolved with simple
Roxas v.
a
instruction to
(1998)(cita
Hawai'i
re-serve.
representation
is,
believe,
I
omitted). Further,
judicial
tion
estoppel
equivalent
waiver of all
prevent
litigant
"seeks to
from asserting a
defects regarding the
process
service of
inconsistent,
with,
[that is]
conflicts
this case. After
representation
such a
has
contrary
or is
to one that
[he
she has
made,
orl
been
a trial court should be entitled to
previously asserted in
previ
the same or in a
rely upon
representation
counsel's
and re
proceeding."
ous
28 Am.Jur.2d Estoppel
solve what
represented
was
to be a minor
74;
and Waiver
see also
City
Salt Lake
v. procedural
matter
quashing service and
Silver
Pipeline
Fork
Corp., 913 P.2d
734 instructing Stichting to
process,
re-serve the
(Utah 1996) ("'[A] person may not, to the
agreed by
counsel on the record.
prejudice
person
of another
deny any posi
¶ 28 Had
attorney instead,
tion taken in
prior
proceeding be
clearly represented to
grant
court that
tween the
person
same
involving
...
ing
quash
the motion to
would be determina
subject-matter,
same
prior position
such
tive, the trial court would have had a reason
successfully
(Citation
maintained'"
to treat
omitted.)).
the matter differently.
Instead of
resolving the
quickly,
upon what
¶ 26 Jordanelle,
motion,
in its written
ini
best
agreement
termed an
by counsel to re
tially asked
the court to
the service
serve
complaint,
the trial
might
However,
dismiss the case.
during the well
inquired
into the substance of the
subsequent
hearing,
motion
repre
issue, including asking
problem
whether the
*6
that,
sented to the trial court
could have been
remedied
a motion to
rights
The
and
Smay
duties of Mr.
service,1
amend the
or whether
his client
properly
[are] to
serve the sum-
any
waived
procedural defects. The court
comply
with the rule. The law would also have had
opportunity
to con
they
is that
don't do that
it's to be
sider
arguments
other
might
that
have been
rendered fatal and defective.
by opposing
raised
However,
counsel.2
in
upon
reliance
representation,
Jordanelle's
It doesn't mean that
Smay
Mr.
can't
the trial court ordered the
quashed
summons
re[-]serve the summons.
and instructed Stichting to serve a properly
drafted
upon
Jordanelle.
saying
We're not
that
Smay's
Mr.
claims
¶ 29 Then, in
following
round of mo
still
They
won't be heard.
may
heard,
be
tions,
adopted
wholly
but he has
procedure.
to follow
inconsistent
prior position,
with its
arguing
that, as a result of the
being
wants,
If he
he can come out and
serve
had failed to
serve
again.
Jordanelle once
He still
is even
the summons and was now barred.
Jorda-
the 120
Nothing has been
adoption
nelle's
contrary
these
positions is
it,
harmed
ought
but we
to
be entitled
inapposite and constitutes Jordanelle
"
to,
ought
and he
required
to be
to
playing
follow
'fast and loose' with the court."
the rules.
Marcos,
may untoward resources. future utilization may decision, judges be trial Following this rely upon trial counsel's reluctant come Instead, courts
representations. every representation to serutinize
be forced conse unforeseen any possible counsel the con of assurances regardless quence, unnecessarily counsel, thereby
trary made litigant resources judicial both
expending consequences to virtual
searching hidden consequence court. ly every action counsel require simply if we
can be avoided representations behind
to either stand mistake, or, court, in the event so that and the court counsel
notify opposing might revisited.
the matter reasons, conclude I would For these objection to the any waived
that Jordanelle Stichting's contained
procedural defect Judge Davis's dis
summons, and reverse prejudice.
missal App73
2002UT AND PLUMBING R. WHIPPLE
A.K. & *7 Appellee,
HEATING, Plaintiff Aspen GUY; Construc D.
Thomas corporation, Defen
tion, a Utah Appellants.
dants and 20001009-CA.
No. Appeals of Utah.
Court 14, 2002.
March 6,May 2002.
Rehearing Denied that Jorda- had been interest the fact the summons I view with some that because preju- within the Harding, no argued failed to serve nelle Sr. quashing therefore, Stichting's complaint from dice would result period; Davis, did Judge Lynn who then prejudice. be dismissed should intent, Harding's knowledge not have