Bischel v. Merritt

BENCH, Judge

(dissenting):

Had Bischel filed a timely appeal from the judgment of dismissal, we would have to reach the issue of whether she filed a timely notice of claim with “the governing body” as required by Utah Code Ann. § 63-30-13 (1993). However, Bischel did not appeal the judgment of dismissal. She appeals only the denial of her post-judgment motion. See main opinion at notes 1 and 2.

“The trial court is afforded broad discretion in ruling on a motion for relief from judgment under Utah R.Civ.P. 60(b), and its determination will not be disturbed absent an abuse of discretion.” Birch v. Birch, 771 P.2d 1114, 1117 (Utah App.1989). Insofar as Bischel’s post-judgment motion can be construed to be a 60(b) motion, the trial court acted within its discretion in denying the motion. To hold otherwise is to effectively allow a 60(b) motion to stay the time for appealing the underlying judgment. Utah courts have consistently held that a 60(b) motion does not stay the time for appealing a judgment. Lord v. Lord, 709 P.2d 338, n. 1 (Utah 1985) (per curiam) (stating that “[r]ule 60(b) motions do not toll the time for appeal”); Peay v. Peay, 607 P.2d 841, 842 (Utah 1980) (explaining that rule 60(b) motion does not extend time for filing notice of appeal); Holbrook v. Hodson, 24 Utah 2d 120, 122 n. 2, 466 P.2d 843, 845 n. 2 (1970) (same); Anderson v. Anderson, 3 Utah 2d 277, 280, 282 P.2d 845, 847 (1955) (same); see also Utah RApp.P. 4(b).

*280In her post-judgment motion, Bischel rear-gued and restated the same arguments she had made in opposing the motion to dismiss. No new information was provided, nor were any new arguments made. The trial court held that Bischel “failed to articulate sufficient reasons justifying relief,” and denied the post-judgment motion. That ruling is within the broad discretion of the trial court.

Even if we could get beyond the procedural defect discussed above, the main opinion fails to follow controlling precedent in discussing the merits of the case. The main opinion erroneously relies upon Brittain v. State, 882 P.2d 666 (Utah App.1994) to divine the meaning of the “governing body” provision of section 63-30-13. Brittain, however, involved a different statute.

In Brittain, the plaintiff had been injured at a Job Service building in Provo, Utah. This court was interpreting section 63-30-12, .which requires notice to be filed with the Attorney General’s office and the “agency concerned” in any action against the state. The plaintiff properly served notice upon the Attorney General’s office but instead of also serving notice upon Job Service or the Division of Facilities Construction and Management, the plaintiff sent notice to the Division of Risk Management. At trial, the State succeeded on its motion to dismiss for failure to file notice with the “agency concerned,” and the plaintiff appealed. To interpret “agency concerned,” this court relied on the dictionary definition of “concerned” as including those who are “interested.” The court concluded that “interested” included the Division of Risk Management since it ultimately handled such claims. Id. at 671.

However, this type of interpretation is inappropriate in construing the “governing body” provision of section 63-30-13. In construing that section, the Utah Supreme Court has previously indicated that the governing body of a county is the county commission. Yates v. Vernal Family Health Ctr., 617 P.2d 352, 354 (Utah 1980). In Yates, the supreme court expressly held that a complaint against a county was properly dismissed because plaintiff did not give timely notice to the county commission. Id.

Bischel did not serve any notice on the Salt Lake County Commission. Bischel also failed to establish, by competent evidence, that she had followed the county commission’s instructions as to how to file a notice of claim. She presented no sworn statement from a member of the county commission or any employee of the commission. She did not even secure a sworn statement from Trish McDonald.1 Merely claiming that some unidentified person told her where and how to file her claim is not enough to withstand the strict filing requirements of the Governmental Immunity Act. See Lamarr v. Utah State Dep’t of Transp., 828 P.2d 535, 540-41 (Utah App.1992). Bischel has failed to meet her burden of showing that the county commission, in some way, waived those strict notice requirements.

Implicit in the main opinion’s decision is that because of what an unidentified commission employee allegedly told Bischel’s attorney, the county commission should now be estopped from holding Bischel to the strict requirements of the Governmental Immunity Act. It is, however, very difficult to estop the government. See Utah State Univ. v. Sutro & Co., 646 P.2d 715, 720 (Utah 1982). Only “well-substantiated representations” by a governmental entity will suffice. Anderson v. Public Serv. Comm’n, 839 P.2d 822, 828 (Utah 1992). To estop a governmental entity, its representations must generally take the form of a written statement by an authorized person. Id. at 827; Celebrity Club, Inc. v. Utah Liquor Control Comm’n, 602 P.2d 689, 694-95 (Utah 1979); Eldredge v. Utah State Retirement Bd., 795 P.2d 671, 675-76 (Utah App.1990).

There is clearly no written statement in this case. Bischel has not even identified the commission employee who allegedly told her to file her notice with the county attorney. Under those circumstances, the county commission cannot be estopped from holding Bis-*281chel to the strict notice provisions of the Governmental Immunity Act.

For the foregoing reasons, I would affirm.

. Bischel's attorney merely alleged that an unidentified receptionist told him to file a notice with McDonald in the county attorney’s office. In an affidavit, the Chief Deputy of the Government Services Division of the comity attorney’s office stated that Trish McDonald was not authorized to accept notices of claim on behalf of the county commission.