Myers v. Utah Transit Auth.

2014 UT App 294
_________________________________________________________

THE UTAH COURT OF APPEALS

RYAN MYERS AND MIKELL MYERS,
Plaintiffs and Appellants,
v.
UTAH TRANSIT AUTHORITY,
Defendant and Appellee.

Opinion
No. 20130098-CA
Filed December 18, 2014

Fourth District Court, Spanish Fork Department
The Honorable Donald J. Eyre Jr.
No. 110300720

Bruce M. Pritchett Jr., Attorney for Appellants

David F. Mull and Robert H. Hughes, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.

CHRISTIANSEN, Judge:

¶1 Ryan and Mikell Myers were injured when a Utah Transit
Authority bus driver failed to stop at a red light while making a
right-hand turn. The UTA bus struck the Myerses’ vehicle as it
passed through the intersection. Settlement negotiations between
the Myerses and UTA proved unsuccessful, and the Myerses filed
suit. The district court dismissed the Myerses’ negligence
complaint, ruling that they had failed to timely file their complaint
after filing an initial notice of claim and that UTA was therefore
immune from suit under Utah’s Governmental Immunity Act.
Myers v. UTA

¶2 On appeal, the Myerses assert that in the course of
negotiations, UTA had agreed to extend their time to file a notice
of claim under the Act. They contend that they timely filed their
complaint after filing a second notice of claim. They contend in the
alternative that, due to their reliance on UTA’s agreement to an
extension, UTA was estopped from asserting that the complaint
was untimely. Because we determine that UTA did not agree to
extend the Myerses’ time to file a notice of claim, we conclude that
the district court correctly dismissed the Myerses’ complaint.

BACKGROUND

¶3 This case arises under Utah’s Governmental Immunity Act
(the Act). Generally, before filing suit against a governmental
entity, an injured party must first file a notice of claim with that
entity within one year after the claim arises. Utah Code Ann.
§§ 63G-7-401, -402 (LexisNexis 2008 & Supp. 2009). The entity may
then approve or deny the claim within sixty days. Id. § 63G-7-403
(LexisNexis 2008). If the entity does not approve or deny the claim
within the sixty-day period, the claim is deemed denied. Id. The
claimant must then file suit within one year after the denial of the
claim or the claim will be barred. See id.

¶4 The collision between the UTA bus and the Myerses’ vehicle
occurred on October 31, 2009. Shortly thereafter, the Myerses
completed a Notice of Claim form that UTA provided them. On the
form, the Myerses described the nature of their claim against UTA
and the damages and injuries incurred as a result of the accident.
The Myerses mailed this notice of claim to UTA on December 1,
2009. The Myerses then entered into settlement discussions with
Michael Benvegnu, a UTA claims administrator.

¶5 In February 2010, Benvegnu requested that the Myerses
provide an update on their medical recovery. After responding to
Benvegnu’s request, the Myerses asked, “[H]ow long do we have
to settle?” and explained their understanding that “special rules”

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Myers v. UTA

applied to claims against UTA as a government agency. Benvegnu
responded by email on February 26, 2010, referred the Myerses to
the applicable provision of the Act governing their claim, Utah
Code section 63G-7-403, and explained, “UTA received you[r]
Notice of Claim on 12/2/09, so you would have until 12/3/10 to
settle or file a lawsuit to maintain your claim.” The Myerses
responded to this email and thanked Benvegnu for his help.

¶6 In August 2010, the Myerses provided Benvegnu with
another update on their recovery and indicated that they would
like to discuss settlement soon. The Myerses asked Benvegnu at
that time, “It shouldn’t be an issue but what was the date we need
to be before?” Benvegnu responded, “You . . . have until 12/31/10
to settle or file suit to preserve the statute,” and he offered to
extend this deadline if necessary.1 In October, the Myerses again
asked about the deadline and inquired whether UTA needed “to be
provided any statutory legal notice prior to the 12/31/2010 deadline
should we not be able to settle.” Benvegnu did not directly answer
the Myerses’ question about notice but instead gave the Myerses
“written confirmation” that “UTA agrees to extend the statutory
time to settle the claims [the Myerses] made against UTA from the
accident of 10/31/[2]009,” subject to UTA’s right to revoke the open-
ended extension upon thirty-days notice.

¶7 In November 2010, settlement negotiations between UTA
and the Myerses broke down, and the Myerses retained an attorney
to further pursue their claim. Upon receiving notice that the
Myerses were represented, Benvegnu notified the Myerses’ counsel
on December 1, 2010, that it was “rescind[ing] the extension of
statutory time . . . to settle the claims [the Myerses] made against
UTA from the accident of 10/31/[2]009.” On December 3, 2010, the

1. As discussed below, both the December 3 and December 31 dates
Benvegnu gave to the Myerses are incorrect under the Act. Infra
¶ 14. Rather, the Myerses needed to file a lawsuit no later than
January 31, 2011. Infra ¶ 14.

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Myers v. UTA

Myerses’ counsel filed a second notice of claim against UTA based
on the accident. The Myerses filed and served their complaint
against UTA in October 2011.

¶8 UTA moved to dismiss the Myerses’ complaint as untimely
under the Act. In response, the Myerses argued that their first
notice of claim, filed on December 1, 2009, was legally insufficient
to serve as a notice of claim; that the statute of limitations should
run from their December 3, 2010 notice of claim; and that UTA
should be estopped from asserting the Myerses’ noncompliance
with the Act as a defense. The Myerses’ opposition was supported
by an affidavit from Ryan Myers, in which he averred that he
believed the December 1, 2009 notice of claim related only to
property damage from the collision and that “[a]t no time during
any of my written or verbal communications with [Benvegnu] did
he inform me that a Notice of Claim had already been filed by me
or that the [December 1, 2009 notice of claim] had anything
whatsoever to do with my or my wife’s personal injuries.”

¶9 The district court rejected the Myerses’ contention that their
initial notice of claim was invalid but determined that UTA was
estopped from asserting governmental immunity as a defense
because “UTA had misled the Myers[es] by failing to clarify
whether or not they had filed a notice of claim, and by giving
multiple incorrect deadlines for filing suit.” At this time, the district
court was unaware of Benvegnu’s February 26, 2010 email to the
Myerses in which Benvegnu explained that UTA had received their
notice of claim on December 2, 2009.

¶10 UTA petitioned for interlocutory review of the district
court’s order, and this court granted the petition. However, UTA
then moved the district court to reconsider its prior order,
submitting Benvegnu’s February 26, 2010 email as newly
discovered evidence. UTA also requested and received a stay of its
interlocutory appeal pending resolution of the motion to
reconsider. The district court granted UTA’s motion to reconsider
on November 26, 2012, concluding that “in light of the February 26,

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Myers v. UTA

2010 e-mail, it is clear that UTA did inform the Myers[es] that they
had filed a Notice of Claim, and gave them the [relevant statute] so
they could calculate the deadline to file suit.” The court also
revisited its determination regarding the incorrect calculation of
deadlines, ruling that the erroneous deadlines did not affect the
Myerses’ ability to comply with the Act, because the stated
deadlines were earlier than the correct deadline for filing suit. In
light of the district court’s grant of its motion to reconsider, UTA
requested voluntary dismissal of its interlocutory appeal, which
this court granted on December 10, 2012. A final appealable order
dismissing the Myerses’ complaint was entered on May 17, 2013,
and the Myerses appeal from that order.

ISSUES AND STANDARDS OF REVIEW

¶11 The Myerses first argue that the district court lacked
jurisdiction to grant UTA’s motion to reconsider its ruling on
UTA’s motion to dismiss while an interlocutory appeal of that
order was pending. Whether the district court had jurisdiction is a
question of law. State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293.
Because the Myerses challenge the district court’s jurisdiction for
the first time on appeal, there is no lower court decision for our
review and we decide the issue in the first instance as a matter of
law.

¶12 The Myerses next argue that UTA was contractually
obligated to allow them additional time to file a new notice of claim
from which the Act’s limitations period should run. However,
“[w]e generally will not consider an issue unless it has been
preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266
P.3d 828.

¶13 Last, the Myerses argue that the district court erred in
rejecting their argument that UTA was estopped from asserting
governmental immunity as a defense. “The issue of whether
equitable estoppel has been proven is a classic mixed question of

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Myers v. UTA

fact and law.” Department of Human Servs. ex rel. Parker v. Irizarry,
945 P.2d 676, 678 (Utah 1997). However, because the district court
ruled on the Myerses’ estoppel claim in granting UTA’s motion to
dismiss under rule 12(b)(1) of the Utah Rules of Civil Procedure, we
review the district court’s decision for correctness. See Peterson v.
Delta Air Lines, Inc., 2002 UT App 56, ¶ 7, 42 P.3d 1253.2

ANALYSIS

¶14 On appeal, the Myerses do not challenge the district court’s
determination that their December 1, 2009 notice of claim was
valid. Accordingly, the Myerses’ time to file suit under the statute
runs from the denial of that claim by UTA. Because UTA did not
affirmatively deny the Myerses’ claim, it was deemed denied on
January 30, 2010. See Utah Code Ann. § 63G-7-403 (LexisNexis
2008). The Act therefore required the Myerses to file suit no later
than January 31, 2011, and their October 29, 2011 complaint was

2. In ruling on UTA’s motion to dismiss, the district court relied on
affidavits and exhibits submitted by the parties. However, unlike
a motion under rule 12(b)(6) of the Utah Rules of Civil Procedure,
a motion to dismiss for lack of subject-matter jurisdiction under
rule 12(b)(1) is not converted to a motion for summary judgment
if the court considers evidence outside the pleadings. Spoons v.
Lewis, 1999 UT 82, ¶¶ 4–5, 987 P.2d 36. Nonetheless, the district
court may appropriately consider materials outside the pleadings
in considering a motion to dismiss for lack of subject-matter
jurisdiction. See Coombs v. Juice Works Dev., Inc., 2003 UT App 388,
¶ 7, 81 P.3d 769. In reviewing the district court’s ruling on such a
motion, we consider the “facts alleged in the complaint,
‘supplemented where appropriate by the materials obtained
through discovery.’” Id. ¶ 8 (quoting Salt Lake Tribune Publ’g Co. v.
Memmott, 2001 UT 83, ¶ 4, 40 P.3d 575).

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Myers v. UTA

untimely.3 See id. The question before us then is whether the district
court erred in rejecting the Myerses’ argument that UTA was
estopped from asserting governmental immunity as a defense.
Because the Myerses also challenge the district court’s jurisdiction
to grant UTA’s motion to reconsider, we address that argument
first.

I. The District Court Had Jurisdiction to Grant UTA’s Motion to
Reconsider.

¶15 The Myerses argue that the district court lacked jurisdiction
to reconsider its order on UTA’s motion to dismiss while that order
was pending on interlocutory appeal. “Generally, when a party
files a timely notice of appeal, the court that issued the judgment
loses jurisdiction over the matters on appeal.” Saunders v. Sharp,
818 P.2d 574, 577 (Utah Ct. App. 1991); see also State v. Bisner, 2001
UT 99, ¶ 39, 37 P.3d 1073 (observing that a trial court is divested of
jurisdiction to reconsider an order by the defendant’s filing a notice
of appeal from the final judgment). The Myerses assert that an
interlocutory appeal similarly deprives the district court of
jurisdiction over the order appealed from and that the district court
therefore lacked jurisdiction to grant UTA’s motion to reconsider
while the interlocutory appeal was pending.

¶16 We need not determine whether interlocutory review of an
order deprives the district court of jurisdiction to reconsider that
order, because the order granting UTA’s motion to reconsider,
which the district court entered during the pendency of the
interlocutory appeal, is not before us. Shortly after the district court
entered its November 26, 2012 order granting UTA’s motion to

3. UTA rescinded its open-ended extension effective December 31,
2010—thirty days after giving notice to the Myerses on December
1, 2010. Because it was rescinded before the expiration of the
statutory deadline, the extension does not affect our calculation of
the Myerses’ deadline for filing.

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Myers v. UTA

reconsider and dismissing the Myerses’ claims, UTA requested a
voluntary dismissal of its interlocutory appeal, which this court
granted on December 10, 2012. The Myerses filed a notice of appeal
from the November 26, 2012 order. However, we notified the
parties that the November 26, 2012 order did not appear to be a
final appealable order under rule 7(f)(2) of the Utah Rules of Civil
Procedure. The district court entered a final appealable order
granting UTA’s motion for reconsideration and dismissing the
complaint on May 17, 2013.

¶17 This court lacks jurisdiction to hear appeals from nonfinal
orders. DFI Props. LLC v. GR 2 Enters. LLC, 2010 UT 61, ¶ 16, 242
P.3d 781. Thus, only the district court’s May 17, 2013 order is
properly before us on appeal. Because UTA’s interlocutory appeal
was dismissed on December 10, 2012, we readily conclude that the
district court had jurisdiction on May 17, 2013, to enter its final
appealable order granting UTA’s motion to reconsider and
dismissing the Myerses’ complaint.

II. The Myerses’ Contract Argument Is Unpreserved.

¶18 The Myerses next argue that UTA “contractually modified”
the requirements of the Act and therefore had a contractual
obligation to allow the Myerses additional time to file a notice of
claim and, presumably, restart the statutory limitations period.
“We generally will not consider an issue unless it has been
preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266
P.3d 828. To preserve an issue for appeal, a party must specifically
raise the issue “in such a way that the trial court has an opportunity
to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted).
The Myerses concede that “the particular word ‘contract’ did not
appear in briefs or oral argument” before the district court. Our
review of the record confirms that in their arguments below, the
Myerses never asserted that UTA breached a contractual obligation
or was in some way contractually prohibited from moving for
dismissal of the Myerses’ claims. The district court’s order makes

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no mention of a contract-based claim but analyzes only the
Myerses’ estoppel claim. And the Myerses did not assert below that
the district court had failed to rule on one of their claims.

¶19 We conclude that the Myerses failed to specifically raise this
issue before the district court in such a way that it had an
opportunity to rule on it. Their argument that UTA was
contractually bound to honor a different procedure or deadline
than that imposed by the Act is therefore unpreserved.4

III. The District Court Did Not Err in Rejecting the Myerses’
Estoppel Argument.

¶20 Last, the Myerses argue that the district court should have
declined to reconsider its decision that UTA was estopped from
asserting immunity under the Act as a defense.

Equitable estoppel requires (1) a statement,
admission, act, or failure to act by one party
inconsistent with a claim later asserted, (2)
reasonable action or inaction by the other party taken
or not taken on the basis of the first party's statement,

4. We note that unlike other statutory frameworks that govern
actions involving governmental entities, such as the Administrative
Procedures Act and Government Records Access and Management
Act, the Governmental Immunity Act has no express provision
authorizing the parties to modify the statutory deadlines by
agreement. See Monarrez v. Utah Dep’t of Transp., 2014 UT App 219,
¶ 26, 335 P.3d 913. Rather, “Utah courts have ‘consistently and
uniformly held’ that strict compliance with the [Governmental
Immunity Act] is required.” Id. ¶ 27 (quoting Wheeler v. McPherson,
2002 UT 16, ¶ 11, 40 P.3d 632). However, because the issue is not
properly before us, we need not decide whether the Governmental
Immunity Act nevertheless permits parties to vary its terms by
agreement.

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Myers v. UTA

admission, act or failure to act, and (3) an injury to
the second party that would result from allowing the
first party to contradict or repudiate such statement,
admission, act, or failure to act.

Meadow Valley Contractors, Inc. v. Utah Dep’t of Transp., 2011 UT 35,
¶ 45, 266 P.3d 671 (citation and internal quotation marks omitted).
To assert estoppel against a governmental entity, a claimant must
generally show that the entity made “‘very clear, well-
substantiated representations.’” McLeod v. Retirement Bd., 2011 UT
App 190, ¶ 22, 257 P.3d 1090 (quoting Anderson v. Public Serv.
Comm’n, 839 P.2d 822, 828 (Utah 1992)). Thus, “our supreme court
has observed that ‘[t]he few cases in which Utah courts have
permitted estoppel against the government have involved very
specific written representations by authorized government
entities.’” Id. (alteration in original) (quoting Anderson, 839 P.2d at
827).

¶21 The Myerses argue that by moving to dismiss their claim,
UTA has taken a position inconsistent with its prior representations
because it “made statements that led Mr. Myers to believe that his
concerns about missing a deadline were ‘alleviated’ and that his
claims would be ‘preserved.’” The Myerses assert that UTA made
representations that are inconsistent with its position that the
Myerses’ injury claims are not “preserved” because they are
untimely.

¶22 The specific representations that the Myerses claim support
their estoppel argument are contained in Benvegnu’s email
correspondence with the Myerses. In response to the Myerses’
initial inquiry about their deadline to settle the case, Benvegnu
explained to them, “UTA received you[r] Notice of Claim on
12/2/09, so you would have until 12/3/10 to settle or file a lawsuit
to maintain your claim.” When the Mserses again inquired about
the deadline, Benvegnu explained that they had ”until 12/31/10 to
settle or file suit to preserve the statute” but that UTA would grant
an extension if they needed “additional time beyond 12/31/10.”

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Myers v. UTA

Finally, Benvegnu sent the Myerses “written confirmation . . . that
UTA agree[d] to extend the statutory time to settle the claims . . .
against UTA,” in order to “alleviate [the Myerses’] concerns about
the statutory time limit to settle [their] claims.”5

¶23 The central thrust of the Myerses’ argument is that they
believed that UTA had granted them additional time to file a
second notice of claim and, presumably, that the limitations period
on their claim would run from the filing of that new notice.
However, we see no basis in the statements identified by the
Myerses or elsewhere in the record to conclude that UTA
represented to the Myerses that it was offering any extension of
time to file another notice of claim. Every communication from
Benvegnu to the Myerses was in relation to their time to settle their
claim or file their lawsuit. And Benvegnu’s statement to the
Myerses that UTA was already in receipt of their notice of
claim—accompanied by the text of the statute setting forth the
deadline to file suit after filing a notice of claim—renders their
reading of Benvegnu’s communications implausible. Thus, when
read in the context of the parties’ communications, we can only
conclude that UTA granted the Myerses an extension of time to

5. The Myerses also point out that the December 3 and
December 31 deadlines given them by Benvegnu were incorrect.
See supra ¶ 14. However, they do not assert that the erroneous
deadlines are statements inconsistent with UTA’s position that the
Myerses’ claim was not timely filed or that the statements
otherwise satisfy one of the elements of the Myerses’ estoppel
argument. Nevertheless, we note that had the Myerses complied
with the erroneous deadlines given by Benvegnu, their complaint
would have been filed well before the end of the limitations period
and they would not have been harmed by reliance on these
erroneous representations. See Meadow Valley Contractors, Inc. v.
Utah Dep't of Transp., 2011 UT 35, ¶ 45, 266 P.3d 671.

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“settle or file suit”6—that is, an extension to the statutory deadline
to “begin the action” pursuant to Utah Code section 63G-7-403, not
an extension of time to file another notice of claim under Utah
Code section 63G-7-402.

¶24 Because UTA never made a clear, specific representation to
the Myerses that it had given them an opportunity to file a new
notice of claim and restart their time to file suit, or made any other
representation inconsistent with its assertion of governmental
immunity, the Myerses’ estoppel claim must fail. See McLeod, 2011
UT App 190, ¶ 22. Accordingly, we need not consider whether the
Myerses reasonably relied on UTA’s representation or were injured
by any reliance. Id. Because the district court correctly concluded
that UTA was not estopped from asserting immunity under the Act
as a defense to the Myerses’ claims, we affirm the district court’s
dismissal of the Myerses’ complaint.

CONCLUSION

¶25 The district court had jurisdiction to grant UTA’s motion to
reconsider because UTA’s interlocutory appeal had been dismissed
at the time the district court entered a final appealable order
granting the motion. The Myerses failed to preserve their argument
that UTA contractually modified the requirements of the Act. UTA
did not make representations to the Myerses that were inconsistent
with its assertion of governmental immunity. We therefore affirm
the district court’s dismissal of the Myerses’ complaint.

6. As noted above, that extension was rescinded in writing in
December 2010, a month before the expiration of the statutory
deadline, and therefore does not affect our determination that the
Myerses’ complaint was not timely filed. Supra note 3.

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