Asset Acceptance LLC v. Utah State Treasurer, 20140686–CA.

• Decision Date: 04 February 2016
• Docket Number: No. 20140686–CA.,20140686–CA.
• Citation: 367 P.3d 1019
• Parties: ASSET ACCEPTANCE LLC, Appellant, v. UTAH STATE TREASURER, Unclaimed Property Administrator, Appellee.
• Court: Utah Court of Appeals

367 P.3d 1019

ASSET ACCEPTANCE LLC, Appellant,

v.UTAH STATE TREASURER, Unclaimed Property Administrator, Appellee.

No. 20140686–CA.

Court of Appeals of Utah.

Feb. 4, 2016.

Gregory M. Constantino, West Jordan, for Appellant.

Sean D. Reyes, Salt Lake City, Thom D. Roberts, and Michael K. Green, for Appellee.

Clark L. Snelson, Salt Lake City, for Amicus Curiae Utah State Tax Commission.

Justice JOHN A. PEARCE authored this Memorandum Decision, in which Judge GREGORY K. ORME concurred, with opinion.¹ Judge J. FREDERIC VOROS JR. concurred dubitante, with opinion.

PEARCE, Justice:

¶ 1 Asset Acceptance LLC appeals the district court's order quashing its writ of garnishment on the Unclaimed Property Division (Administrator).² The district court concluded that Asset Acceptance's garnishment of property held by Administrator was not authorized by Utah Code section 78B–5–808, which provides for the service of a writ of garnishment on the State in certain instances. Asset Acceptance appeals.³ We affirm.⁴

¶ 2 Asset Acceptance obtained a default judgment against a debtor for his unpaid credit card debt. In an attempt to satisfy the judgment, Asset Acceptance applied for a writ of garnishment against Administrator to obtain unclaimed property held by Administrator but purportedly belonging to the debtor. See generally Utah R. Civ. P. 64D (setting out the procedures for the issuance of a writ of garnishment). The district court issued the writ of garnishment to be served on Administrator.

¶ 3 Administrator moved to quash the writ, arguing it could not be enforced against Administrator, an entity of the State. Administrator maintained that the State's governmental immunity and the Governmental Immunity Act of Utah (the Immunity Act) bar the garnishment of property held by the State. The district court granted Administrator's motion to quash, concluding that Utah law does not require Administrator to comply with the writ of garnishment. Asset Acceptance appeals.

¶ 4 Asset Acceptance argues that Administrator must comply with the writ because governmental immunity does not apply in this situation, and, even if it did, that the Immunity Act waives any immunity Administrator might otherwise possess. Asset Acceptance also argues that its writ of garnishment is authorized by Utah Code section 78B–5–808 and the Utah Supreme Court's interpretation of a prior version of that statute in Funk v. Utah State Tax Commission, 839 P.2d 818 (Utah 1992).

¶ 5 These arguments require us to review the district court's order to determine if the court properly analyzed and applied various statutes. We review the district court's interpretation of a statute for correctness and afford no deference to the district court's decision. DePatco, Inc. v. Teton View Golf Estates, LLC, 2014 UT App 266, ¶ 6, 339 P.3d 126 ; see also Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998).

¶ 6 "Sovereign immunity—the principle that the state cannot be sued in its own courts without its consent—was a well-settled principle of American common law at the time Utah became a state." Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983). Utah case law has long recognized that sovereign immunity generally prohibits actions against the State unless it has expressly waived its immunity. See Wilkinson v. State, 42 Utah 483, 134 P. 626, 630 (1913) ("[I]n the absence of either express constitutional or statutory authority an action against a sovereign state cannot be maintained.").

¶ 7 The Utah Legislature codified the doctrine of sovereign immunity in the Immunity Act. See Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 55, 356 P.3d 1172 ("Prior to the enactment of [the Immunity Act] in 1965, the common law doctrine of sovereign immunity prevented a citizen from suing a state governmental entity for any act considered to be a function of government."). In defining the Immunity Act's scope, the Legislature has provided that the Immunity Act's "waivers and retentions of immunity" apply to "all functions of government, no matter how labeled," and in a separate subsection, that the Immunity Act "governs all claims against governmental entities or against their employees or agents arising [from the employee's or agent's official capacity]." Utah Code Ann. § 63G–7–101(2)(a), (b) (LexisNexis 2014). The Immunity Act further states, "Except as may be otherwise provided in this chapter, each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function." Id. § 63G–7–201(1).⁵ The Immunity Act defines "governmental function" as "each activity, undertaking, or operation" of a governmental entity or employee. Id. § 63G–7102(4)(a). "Governmental function" also includes "a governmental entity's failure to act." Id. § 63G–7–102(4)(c). The Utah Supreme Court has noted that the breadth of this definition encompasses "anything the government decides to do." Scott, 2015 UT 64, ¶ 58, 356 P.3d 1172.

¶ 8 Thus, absent a waiver, the State's governmental immunity prohibits Asset Acceptance from seeking to judicially compel Administrator to comply with a writ of garnishment.⁶ Cf. Hall v. Utah State Dep't of Corr., 2001 UT 34, ¶ 14, 24 P.3d 958 (holding that the Immunity Act "must be strictly applied" because "it is through the [Immunity Act] that the legislature has recognized the necessity of immunity as essential to the protection of the state in rendering the many and ever increasing number of governmental services" (citation and internal quotation marks omitted)); Epting v. State, 546 P.2d 242, 244 (Utah 1976) ("The decisions of this court, and other states, have indicated recognition of the principle that where there is thus a general preservation of governmental immunity, any exception must be found to be clearly stated within the provisions of the [Immunity Act]." (footnotes omitted)).⁷

¶ 9 Asset Acceptance argues that not only has the State waived its governmental immunity with regard to the garnishment in this case, but that its garnishment is also authorized by the Immunity Act's general waiver of immunity in Utah Code section 63G–7–301(2)(a) for certain types of suits. Administrator counters that it is immune from Asset Acceptance's garnishment due to Utah Code section 63G–7–603's reservation of immunity from judicial actions taken through certain processes.

¶ 10 "Because we will not alter the meaning of a statute by judicial fiat, we must try to interpret it in accordance with the legislature's intent." Flowell Elec. Ass'n, Inc. v. Rhodes Pump, LLC, 2015 UT 87, ¶ 34, 361 P.3d 91. "When we are faced with two statutes that purport to cover the same subject, we seek to determine the legislature's intent as to which applies." Jensen v. IHC Hosps., Inc., 944 P.2d 327, 331 (Utah 1997). In doing so, we "follow the general rules of statutory construction, which provide both that ‘the best evidence of legislative intent is the plain language of the statute,’ " id. (citation omitted), and "that when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision," Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (citation and internal quotation marks omitted).

¶ 11 Section 63G–7–301(2)(a) provides that immunity is waived "as to any action brought to recover, obtain possession of, or quiet title to real or personal property." Utah Code Ann. § 63G–7–301(2)(a) (LexisNexis Supp. 2015). Section 63G–7–603(2) provides, "Execution, attachment, or garnishment may not issue against a governmental entity." Id. § 63G–7–603(2) (2014).

¶ 12 Section 63G–7–603 is the more specific statute. It provides that the precise action attempted by Asset Acceptance—garnishment—may not issue against a governmental entity. Id. In contrast, section 63G–7–301 addresses a much broader range of potential actions, including any action to recover or obtain possession of personal property. See id. § 63G–7–301(2)(a) (Supp. 2015). Thus, section 63G–7–603 applies here, preventing the issuance of Asset Acceptance's garnishment.⁸

¶ 13 Moreover, Administrator's reading of the Immunity Act comports with our prior interpretation of section 63G–7–603. See Fisher v. Fisher, 2003 UT App 91, ¶¶ 13–14, 67 P.3d 1055. In Fisher, an attorney obtained a judgment for past-due child support and an award of future child support payments. Id. ¶ 2. His client sought the assistance of the Office of Recovery Services (ORS) to garnish her ex-husband's wages. Id. The attorney then filed an attorney lien on the funds ORS had collected. Id. ORS moved to quash the lien arguing, in part, that the Immunity Act did not permit such a lien. See id. ¶¶ 2, 7.

¶ 14 Specifically, ORS argued a prior (but identical) version of section 63G–7–603(2), which commands that "[e]xecution, attachment, or garnishment may not issue against a governmental entity," precluded the lien. Id. ¶ 13 (alteration in original) (citation and internal quotation marks omitted). We agreed, concluding that the funds the attorney sought to attach were "in the possession and control of ORS, a governmental agency that is immune from execution, attachment, or garnishment." Id. ¶ 14. Asset Acceptance does not discuss Fisher in its briefing.⁹ In the absence of argument attempting to distinguish Fisher and its application of the Immunity Act in similar circumstances, we conclude that Fisher 's reasoning applies and that section 63G–7–603(2) prohibits Asset Acceptance from garnishing the property held by Administrator.

¶ 15 Finally, Asset Acceptance argues that Utah Code section 78B–5–808 authorizes its garnishment in this action. The district court rejected this argument, concluding that a "common sense reading of [section 78B–5–808 shows] that the State is subject to garnishment only for money owed to a public official or employee as either salary or wages." We agree with the district court.

¶ 16 When interpreting a statute, "our primary goal is to evince...