*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 5 P.3d 616. thirty-day time by When read in context of the rest of section section expired on March 17A-3-229, the last clause of subsection This statute was the focus of the proceedings (8)(b) leaves the trial court with some limited before Davis. . authority. The language of subsection (8) only Section 17A-3-229 limits a requires a party to "commence" or au court's thority over the matter as follows: "institute" an action. Utah Code.Ann. 3. As out taken dissenting colleague, our pointed dissent, agreed that Investors could parties re-serve the sum- have not raised the issues of waiver or provisions mons under the Despite Rule 4. estoppel. 17A-3-229(2). (b). could have

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, 969 P.2d at 1242. suggested by majority As opinion. disagreements counsel, between and not become irregularities, mired in technical opposing coun- 2. Given the judges, workload of district may sel unwilling have been to force the issue very be judge unusual for a permit argu- trial to opposing when represented open counsel has in ment about a easily that court that the matter is both minor and inconse- Knowing remedied. propensity of most trial quential. judges spend to want time on substantive for this inadvisable it is I believe misleading to countenance decision that our I also believe behavior.3 impacting consequences

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