Opinion
1 1 Wade S. Winegar and Sandra Winegar appeal from the district court's grant of summary judgment to Springville City (the City). The Winegars contend that summary judgment was improper because the City failed to demonstrate that the Winegars' lawsuit was untimely under the Utah Governmental Immunity Act. We vacate the entry of summary judgment and remand to the district court.
BACKGROUND
T2 The Winegars owned a vacant wooded parcel along Hobble Creek in Springville, Utah. In May 2005, the City decided that it needed to clear obstructions from the Hobble Creek streambed. Without the Winegars' knowledge or consent, the City bulldozed approximately 100 trees on the Winegars' property to create a path to the creek. Some of the trees may have been growing on a maintenance easement accessible by the City, but many were on the Winegars' private property. The City left in place the debris created by the bulldozing.
13 On January 27, 2006, the Winegars filed a notice of claim for damages with the Springville City Clerk,. The clerk forwarded the notice to the City Attorney, who began communicating with the Winegars in an effort to resolve their claim.
4 The Winegars received a letter, dated March 20, 2006, from an entity named Utah Risk Management Mutual Association (URMMA). The letter read,
Our investigation into the claim you have made against Springville City for damage to your landscaping and property ... is now complete.
Our investigation indicates that Springville City would not be held legally liable for any damages you may have sustained. The City has an easement on the property which allows [it] to enter the creek bed. [It] also hals] authority to take measures to clean out and maintain the creek bed to prevent flooding that might damage other property downstream.
Because the City would not be held Hable, we must respectfully decline to make any voluntary payments on this claim.
The letter was signed by a "claims adjuster" and copied the City Attorney. It did not explain what URMMA is or its relationship with the City. The City maintains that URM-MA is the City's insurance carrier. The Winegars claim they were not aware that URMMA was the City's insurer or that the
T5 On April 9, 2006, Mr. Winegar sent a letter to the City Attorney, purporting to follow up on a telephone conversation from the previous week. According to the letter, the City Attorney had advised the Winegars that they needed to file an amended notice of claim against the specific employees who bulldozed their property, and the letter requested that the City provide the employees' names. URMMA responded to the Wine-gars' letter on April 20, 2006:
Your letter dated April 9, 2006, addressed to [the City Attorney], has been referred to us for a responsel[.]
Your claim was denied on March 20, 2006. We are not prepared to continue negotiations with you by providing the information you have requested in your letter. If you chofolse not to accept our denial and if you cho[olse to move this claim to the next step, your attorney can gather this information through the discovery process of the court syste(m].
T6 On April 24, 2006, Mr. Winegar sent a letter to URMMA and the City Attorney, in which he acknowledged that URMMA had "outright denied] ... the claim." He nevertheless stated his understanding that he needed to include the employees' names on the notice of claim and indicated that, by means of his letter, he was "amend[ing the] claim to include not only Springville City but all the unidentified employees who participated in any aspect of the work done at the above listed property, participated in the decision-making to do such work or carried trees or timber off the property." Mr. Wine-gar requested that the City Attorney or URMMA notify him "lf you believe I must follow a different process to amend my claim." No response from the City or URM-MA is identified in the record.
17 One year later, on April 24, 2007, the Winegars filed a complaint against the City in the Fourth District Court. After a period of delay while the parties attempted to resolve their dispute and conduct discovery, the City filed a motion for summary judgment on April 15, 2011. The City alleged the following as undisputed facts; (1) the Winegars filed a notice of claim on January 27, 2006; (2) "[oln March 20, 2006, Springville City denied [the Winegars'] claim by letter"; and (3) the Winegars filed a complaint in the Fourth Judicial District Court on April 24, 2007. According to the City, the Winegars' April 24, 2007 complaint was untimely because the Governmental Immunity Act of Utah (the Act) requires a "claimant ... [to] begin [a civil] action within one year after the denial of the claim," which occurred on March 20, 2006, see Utah Code Ann. § 63G-7-403(2) (LexisNexis 2011).
18 The Winegars contested the second statement of undisputed fact, arguing that the March 20 letter was not a denial, the letter was not written by the City, and the City had not established that URMMA was its insurer. Therefore, they argued, their claim was never denied and their complaint was timely because it was filed within one year of the expiration of the deemed-denied period, which occurred on April 28, 2006. See generally id. § 68G-7-408(1)(b), (2) (explaining that if a claim is not denied within the denial period, the claimant shall begin action "within one year after the denial period specified in [the Act]
T9 On June 6, 2011, the Winegars filed a motion to either strike the reply because it included new factual allegations or, in the alternative, to allow the Winegars an opportunity to respond to the new matters raised in the reply memorandum prior to entry of a decision on the City's summary judgment motion. See Utah R. Civ. P. T(c)(1) (explaining that a reply memorandum "shall be limited to rebuttal of matters raised in the memorandum in opposition"). The next day, June 7, the district court granted summary judgment to the City on the basis that the court lacked subject matter jurisdiction under the Act due to the Winegars having failed to file the complaint within one year of the denial of their claim through the URMMA letter dated March 20, 2006. The court did not address the Winegars' motion to strike or respond to the City's reply. The court dismissed the case with prejudice. The Winegars now appeal. ©
ISSUES AND STANDARD OF REVIEW
110 The Winegars contend that because the City failed to establish that it was entitled to judgment as a matter of law in its opening memorandum, the district court erred in granting summary judgment. The Winegars also argue that they were deprived of the opportunity to contest a material fact set forth only in the City's reply memorandum-that URMMA was the City's insurer-because the court failed to grant (or possibly even to consider) the Winegars' motion for leave to respond to the City's reply.
{11 Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Id. R. 56(c). We review the grant of summary judgment for correctness, as a question of law, giving no deference to the district court's legal conclusions. Basic Research, LLC v. Admiral Ins. Co.,
ANALYSIS
112 "The Utah Supreme Court has been very explicit in its pronouncements that a plaintiff must strictly comply with the Act's requirements" in order to maintain an action against a governmental entity. Suazo v. Salt Lake City Corp.,
{13 The Act provides that "[wlithin 60 days of the filing of a notice of claim, the governmental entity or its insurance carrier shall inform the claimant in writing that the claim has either been approved or denied." Id. § 63G-T-408(1)(a). "A claim is considered to be denied if, at the end of the 60-day period, the governmental entity or its insurance carrier has failed to approve or deny the claim." Id. § 68G-7-408(1)(b). Then, "[the claimant shall begin the action [in the district court] within one year after the denial of the claim or within one year after the denial period ... has expired." Id. § 63G-7-408(2)(b). On March 20, 2006-fifty-two days after the filing of the notice of claim-URMMA wrote the Winegars that it "must respectfully decline to make any voluntary payments on [the] claim." The issue presented to us on appeal is whether the City established as a matter of law that the March 20 letter denied the Winegars' claim so as to entitle the City to judgment on the basis that the complaint, filed in April 2007, was untimely. We agree with the Winegars that the City did not.
{14 On April 15, 2011, the City filed a motion for summary judgment in which it asserted that the district court did not have jurisdiction to hear the case because the Winegars' complaint "was not filed within a year from Springville City's denial of their notice of claim, making it untimely" and thereby depriving the district court of subject matter jurisdiction, see Wheeler,
1 15 The Winegars disputed only the City's representation as to when it had denied their claim and did so on two grounds. First, the Winegars disputed that the March 20 letter was actually a denial of their claim because the letter did not explicitly say the claim was denied but rather stated that URMMA "must respectfully decline to make any voluntary payments on [the] claim." Second, they asserted that URMMA, not the City, wrote the March 20 letter and the letter did not identify URMMA as the City's insurer. The Winegars further contend that the City did not explain that discrepancy in Fact Number 2, where the City simply alleged that it had "denied the claim by letter," which was attached with no affidavit and no explanation of who URMMA was-"A claims adjusting company? An agent of Spring-ville's insurer? Springville's insurer itself?" Thus, the Winegars argued that even if the letter amounted to a denial of their claim, the City had failed to establish that either the City or its insurer sent the March 20 letter, as the Act required, see Utah Code Ann. § 63G-7-403(1) (providing that only the governmental entity or its insurance carrier may approve or deny a claim).
[16 The City filed a reply memorandum on May 26, 2011. In it, the City responded to this criticism most directly by amending Fact Number 2 to assert that March 20, 2006, City, through its insurer, the Utah Risk Management Mutual Association ('URMMA'), denied [the Winegars'] Notice of Claim." (Emphasis added.) Again, the City failed to provide an affidavit or other evi
117 On June 6, the Winegars filed a motion to strike the City's reply or, in the alternative, for the court's leave to respond to the reply. The Winegars asserted that the inclusion of new information in the City's reply to counter the Winegars' denial of Fact Number 2 undermined the notions of "procedural fairness," which required the City to include all facts necessary to make out its summary judgment claim in the opening motion so that the Winegars could have an opportunity to respond. The next day, the district court granted summary judgment, without ruling on the Winegars' motion to strike or respond and with no indication whether the court had even become aware of the motion before its ruling.
118 The Winegars contend that the district court erred in granting summary judgment because (1) the City failed to prove that it was entitled to judgment as a matter of law and (2) the court failed to rule upon the Winegars' motion to strike or respond. First, the Winegars assert that Fact Number 2 failed to establish that the Winegars' claim had actually been denied by the City or its insurance carrier so as to begin the one-year period for commencing legal action in the district court. After the Winegars pointed this out in their opposition, the City attempted to remedy the flaw by amending Fact Number 2 in the reply but did so without submitting evidence to support its assertion. Second, the Winegars assert that it was improper for the court to consider the amended Fact Number 2 when it conveyed new information that could not be disputed by the Winegars in the ordinary course of the summary judgment pleadings permitted by rule 7 of the Utah Rules of Civil Procedure without leave of court. Overarching the argument that the grant of summary judgment was improper is a claim that the City's narrow basis for seeking summary judgment-that the City denied the Winegars' claim in the March 20 letter-caused the Winegars not to assert several estoppel claims that would have been pertinent had the City's motion not been so narrowly focused.
T19 A party seeking summary judgment must file a motion, along with a supporting memorandum and any affidavits or other evidence, that demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "The motion, memoranda and affidavits shall be in accordance with Rule 7" of the Utah Rules of Civil Procedure. Id. While rule 7 provides that "[al party may attach as exhibits to a memorandum relevant portions of documents cited in the memorandum, such as affidavits or discovery materials," id. R. 7(c)(8)(D), it does not change rule 56's requirement that a summary judgment motion be supported by admissible evidence, id. R. 56(c), see also Sunridge Dev. Corp. v. RB & G Eng'g, Inc.,
121 The City acknowledged this problem in its reply memorandum supporting its motion for summary judgment by purporting to amend the original Fact Number 2 to read, "On March 20, 2006, City, through its insurer, the Utah Risk Management Mu-
tual Association (URMMA'), denied [the Winegars'] Notice of Claim." (Emphasis added.) This is insufficient. A reply memorandum is "limited to rebuttal of matters raised in the memorandum in opposition." Utah R. Civ. P. T(c)(1). "Where a party first raises an issue in his reply memorandum, it is not properly before the trial court" unless the party has received leave of the court to raise a new issue. Soriano v. Graul,
122 Furthermore, the City's attempt to add a crucial fact demonstrating its entitlement to summary judgment in the reply memorandum deprived the Winegars of an opportunity to fully challenge the summary judgment motion, either by contesting the new statement of undisputed facts or by raising other defenses, such as the estoppel defenses they raise on appeal. The Wine-
123 Accordingly, we vacate the grant of summary judgment and remand for further proceedings. Because of the nature of our decision, we do not reach any of the other issues the Winegars raised regarding the district court's decision.
€ 24 The City requested its attorney fees on appeal pursuant to rule 38 of the Utah Rules of Appellate Procedure. Rule 33 allows the appellate courts to "award just damages, which may include ... reasonable attorney fees, to the prevailing party" when a civil "appeal ... is either frivolous or for delay." Utah R.App. P. 88(a). The City is not the prevailing party, nor is the Winegars' appeal frivolous or for delay. We therefore deny the City's request for attorney fees.
CONCLUSION
125 We vacate the grant of summary judgment in favor of the City and remand the case to the district court. The City's request for rule 33 attorney fees is denied.
Notes
. In reviewing a grant of summary judgment, we recite the facts and reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party. Orvis v. Johnson,
. The Act was renumbered in 2008, but the pertinent subsections are identical to the versions in effect from 2005 to 2007. Accordingly, we cite the current version for the convenience of the reader.
. The notice of claim was filed on January 27, 2006, and according to the Act, if the City failed to approve or deny the claim, the Winegars' claim was deemed denied after sixty days, or on March 29, 2006, see Utah Code Ann. § 63G-7-403(1)(b) (LexisNexis 2011) ("A claim is considered to be denied if, at the end of the 60-day period, the governmental entity or its insurance carrier has failed to approve or deny the claim.").
The Winegars filed their notice of claim on a form they received from the City, which incorrectly stated, "UNDER STATE LAW, THE CITY HAS 90 DAYS IN WHICH TO RESPOND TO A CLAIM. IF THE CITY DOES NOT RESPOND WITHIN 90 DAYS, THE CLAIM IS DEEMED
The Winegars assert that the City is bound by its representation that the denial period was ninety days, which would allow them until April 28, 2006, to file their claim. This argument depends upon a determination that there was not a denial prior to April 28, 2006, i.e., that URM-MA's March 20 letter did not amount to a lawful denial. See Utah Code Ann. § 63-30-14 (Michie 1997) (explaining that a claim is deemed denied if the City fails to approve or deny the claim within the prescribed time period); id. § 63-30d-403(1)(b) (LexisNexis 2004) (same) id. § 63G-7-403(1)(b) (LexisNexis 2011) (same). We do not reach the issues implicated in this claim because we vacate the summary judgment on another basis and leave the matter to be addressed as appropriate in the district court.
. The Winegars also advance a number of equitable estoppel-based arguments for precluding the City from seeking dismissal of the Winegars' complaint. We do not reach those claims because we resolve the Winegars' challenge to the propriety of the process surrounding the summary judgment motion by vacating the grant of judgment.
. The City also added three facts intended to demonstrate that the Winegars knew both that URMMA was the City's insurer and that their claim had been denied. The three additional facts referenced correspondence between the Winegars and URMMA in April 2006, in which URMMA explicitly stated that the claim had been denied (the April 20 letter) and the Winegars acknowledged the denial of their claim (the April 24 letter). The City attached copies of those letters as exhibits to the reply memorandum. The City highlighted the fact that in both the March 20 letter and the follow-up April 20 letter, URMMA "identified [the Winegars'] claim [and] . indicated their claim had been investigated and it was determined the City was not liable." Again, the City did not support these facts by affidavit or other evidence, and because this new information was presented only in the reply memorandum, the Winegars did not have an opportunity to respond to it.