212 P.3d 547 (Utah 2009), 20080103, Hoyer v. State

Docket Nº:20080103.
Citation:212 P.3d 547, 2009 UT 38
Opinion Judge:NEHRING, Justice:
Party Name:Ryan HOYER and Richard F. Hoyer, Plaintiffs and Appellants, v. STATE of Utah, Division of Wildlife Resource; Jim Karpowitz; Richard Ashcroft; Rudy Musclow; and Miles Moretti (in their official capacity as officials of the Utah Division of Wildlife Resources), Defendants and Appellee.
Attorney:Stephen D. Spencer, Nathan Whittaker, Murray, for appellants. Mark L. Shurtleff, Att'y Gen., Bridget K. Romano, Asst. Att'y Gen., Salt Lake City, for appellee.
Judge Panel:Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING'S opinion.
Case Date:June 19, 2009
Court:Supreme Court of Utah
 
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Page 547

212 P.3d 547 (Utah 2009)

2009 UT 38

Ryan HOYER and Richard F. Hoyer, Plaintiffs and Appellants,

v.

STATE of Utah, Division of Wildlife Resource; Jim Karpowitz; Richard Ashcroft; Rudy Musclow; and Miles Moretti (in their official capacity as officials of the Utah Division of Wildlife Resources), Defendants and Appellee.

No. 20080103.

Supreme Court of Utah.

June 19, 2009

Page 548

[Copyrighted Material Omitted]

Page 549

Stephen D. Spencer, Nathan Whittaker, Murray, for appellants.

Mark L. Shurtleff, Att'y Gen., Bridget K. Romano, Asst. Att'y Gen., Salt Lake City, for appellee.

NEHRING, Justice:

INTRODUCTION

¶ 1 Ryan Hoyer and his father, Richard Hoyer, sued Utah Division of Wildlife Resources for negligence. DWR seized approximately sixty-five rubber boa snakes from Ryan Hoyer's home. After the snakes were seized, Ryan discovered that all but eight of the snakes died while in the " care" of DWR. Through their lawsuit, the Hoyers sought to recover damages for the death of the snakes. DWR moved for summary judgment, which the district court granted, and the Hoyers brought the appeal that we decide today.

BACKGROUND

¶ 2 Ryan Hoyer is an amateur herpetologist whose research focuses on the rubber boa ( charina bottae ). He assists his father, Richard, who has studied the rubber boa for over forty years. On January 9, 2004, DWR obtained a warrant to search Ryan's home as part of " Operation Slither," an investigation aimed at prosecuting the illegal possession of and commercial trade in reptiles. Upon searching Ryan's home, DWR seized a computer, documents, and approximately sixty-five rubber boa snakes. The snakes were taken to DWR offices in Salt Lake City and

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were held as evidence in criminal proceedings against Ryan in the Davis County and Clearfield City Justice Courts. Ryan was first convicted in the Clearfield Justice Court. He then exercised his right to a trial de novo in the Second District Court and was again convicted of the unlawful possession of some of the snakes. Ryan appealed and the Utah Court of Appeals affirmed his conviction. Clearfield City v. Hoyer, 2008 UT App 226, ¶ 7, 189 P.3d 94 (affirming Ryan Hoyer's conviction and rejecting his challenge to the constitutionality of Utah Code section 23-20-3 and administrative rule 58-1-4(B)).

¶ 3 After DWR seized the snakes, Ryan offered to have his father, Richard, travel to Utah to care for the snakes or to arrange for expert care by a third party. DWR declined these offers. On October 16, 2006, the date of Ryan's district court conviction and more than two and one-half years after DWR seized the snakes, Ryan was granted the opportunity to inspect the snakes at DWR offices pursuant to an order from the Clearfield City Justice Court. At that time, he learned that all but eight of the snakes had died.

¶ 4 Upon learning of the death of the snakes, Ryan and his father sued DWR, alleging negligence by DWR in caring for the snakes, as well as violations of substantive and procedural due process. On September 11, 2007, DWR filed a motion for summary judgment. It argued that since the snakes were seized pursuant to a judicial proceeding, DWR retained immunity under Utah Code section 63-30d-301(5)(e) (2004) 1. The trial court granted the motion on December 13, 2007. On January 3, 2008, the Hoyers filed a petition for permission to appeal an interlocutory order. DWR opposed the motion, arguing that the grant of summary judgment was not an interlocutory order but a final order. On January 17, the Hoyers filed a motion in the district court seeking an extension of time to file a notice of appeal. The Hoyers withdrew the petition for permission to appeal an interlocutory order on January 24, and on January 25, they filed a notice of appeal with the clerk of the district court. The district court granted the motion and extended the Hoyers' deadline for filing a notice of appeal to February 14. The Hoyers did not refile or amend their previous notice of appeal.

¶ 5 DWR moved for the summary dismissal of the Hoyers' appeal with this court. DWR argues that since the Hoyers filed their notice of appeal more than thirty days after the entry of final judgment (December 13, 2007) and before the district court granted their motion to extend the time to file, the appeal failed to comply with Utah Rule of Appellate Procedure 4(a) and (e) and, as a result, this court lacks subject matter jurisdiction to consider the appeal. In response, the Hoyers assert that while Utah Rule of Appellate Procedure 4(e) states that " [n]o extension shall exceed 30 days past the prescribed time," nothing in the rule prevents us from hearing an appeal when the notice of appeal was filed after the original deadline but before a properly filed application to extend the time to appeal under rule 4(e) was granted.

¶ 6 DWR also filed a motion to strike portions of the fact section of the Hoyers' appellate brief. DWR contends that because the Hoyers failed to support their factual assertions on pages six and seven of their brief with citations to the record, we should strike those portions pursuant to Utah Rule of Appellate Procedure 24(k). In response to DWR's motion to strike, the Hoyers filed a motion for leave to amend their brief along with proposed amendments.

STANDARD OF REVIEW

¶ 7 " Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Crestwood Cove Apartments Bus. Trust v. Turner, 2007 UT 48, ¶ 10, 164 P.3d 1247 (internal quotation marks omitted). When reviewing a grant of summary judgment, we review the district court's conclusions of law for correctness and give them no deference.

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Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 5, 173 P.3d 166; Blackner v. State, 2002 UT 44, ¶ 8, 48 P.3d 949. We review the facts in the light most favorable to the nonmoving party, the Hoyers, and make any reasonable inferences in their favor. Johnson v. Hermes Assocs., 2005 UT 82, ¶ 2, 128 P.3d 1151.

ANALYSIS

¶ 8 This appeal presents us with three issues: (1) whether the Hoyers' appeal was timely; (2) whether we should strike portions of their brief for not properly citing to the record; and (3) whether DWR is immune from suit because its actions fall within the exception to the waiver of immunity for negligence contained in section 63-30d-301.

I. THE HOYERS' APPEAL WAS TIMELY

¶ 9 The first issue before us is whether the Hoyers' appeal was timely. DWR argues that we lack subject matter jurisdiction because the Hoyers filed their appeal more than thirty days after the entry of final judgment (December 13, 2007) and before the district court granted the motion to extend the time to file and because they did not renew their notice of appeal after the extension was granted. This appeal, DWR insists, fails to comply with Utah Rule of...

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