Bigelow v. Ingersoll
| Decision Date | 24 September 1980 |
| Docket Number | No. 16305,16305 |
| Citation | 618 P.2d 50 |
| Parties | Gregory A. BIGELOW and Marilyn Bigelow, Plaintiffs and Appellants, v. Brad INGERSOLL, Lee Ingersoll, Cache Valley Electric Company, a Utah Corporation, Salt Lake City Corporation, and the State of Utah, Defendants and Respondents. |
| Court | Utah Supreme Court |
S. Rex Lewis of Howard, Lewis & Petersen, Provo, for plaintiffs and appellants.
Robert W. Miller, Salt Lake City, for Ingersoll.
John M. Chipman, Salt Lake City, for Cache Valley.
Robert B. Hansen, Atty. Gen., Allan L. Larson, Salt Lake City, for defendants and respondents.
This case arose out of the collision of two automobiles at the intersection of 500 West and 1300 South in Salt Lake City. The plaintiffs, Gregory A. Bigelow and Marilyn Bigelow, passengers in one of the automobiles, were injured. The Bigelows initially filed this action against the driver of the other car, Brad Ingersoll; Ingersoll's father; Cache Valley Electric Co., which had installed the electrical traffic control semaphore where the collision occurred; Salt Lake City Corporation; and the State of Utah. Plaintiffs filed an amended complaint dropping Salt Lake City as a defendant. The Ingersolls cross-claimed against Cache Valley Electric Co. and the State of Utah.
In essence the claim against the State of Utah is that it negligently designed the traffic control lights at the intersection. The State, the plaintiff, and the Ingersolls moved for summary judgment to determine the effect of the Utah Governmental Immunity Act, § 63-30-1 et seq., Utah Code Ann. (1953), as amended, as to the potential liability of the State of Utah. The trial court held the State immune from suit. From that ruling this appeal is taken. 1
Two issues are presented in this case. First, the State of Utah challenges the jurisdiction of this Court to hear this appeal on the ground the plaintiffs did not file a timely notice of appeal. Second, the plaintiffs contend that the trial court improperly held the acts of the State to be "discretionary" and therefore immune under the terms of the Utah Governmental Immunity Act.
On January 2, 1979, the trial court granted summary judgment in favor of the State of Utah and against the plaintiffs and cross-claimants. No certificate of mailing was attached to this order, and it was not served on opposing counsel. The trial court then signed a second order identical to the first except that it was dated January 15, 1979, and had attached a certificate of mailing to opposing counsel. Counsel for the State prepared both orders.
On January 31, 1979, a "Notice of Entry of Judgment" was filed by the State with the clerk of the district court. This notice, dated January 30, 1979, was addressed to the plaintiffs, the plaintiffs' attorney, the Ingersolls, and the Ingersolls' attorney, stating that a judgment had been entered January 15, 1979. Attached to the notice was a certificate of mailing. No other "Notice of Entry of Judgment" appears in the record.
The plaintiffs' attorney filed a notice of appeal February 8, 1979. This notice states that the plaintiffs appealed from the judgment entered January 15, 1979. The State of Utah now contends that the plaintiffs' notice of appeal was not timely filed and that therefore this Court has no jurisdiction to entertain the appeal.
Plaintiffs in this case not only received from defendant a copy of the January 15 order and judgment prior to presentment to the court for the judge's signature, but subsequently received from defendant a signed copy of the same judgment attached to a notice of entry of judgment. The dual notice of the latter judgment, absent any notice or reference to the initial judgment, established a clear indication on defendant's part that defendant did not consider the earlier filing an effective entry of judgment.
A notice of appeal must be filed within one month from the entry of judgment as specified by Rule 73(a), Utah Rules of Civil Procedure. In re Ratliff's Estate, 19 Utah 2d 346, 431 P.2d 571 (1967); Anderson v. Anderson, 3 Utah 2d 277, 282 P.2d 845 (1955). In this case there are two identical judgments, but only one "Notice of Entry of Judgment" served on the opposing parties which refers to the date of the latest judgment filed in accordance with Rule 58A, U.R.C.P.
Rule 2.9(b) of the District and Circuit Court Rules of Practice requires that copies of a proposed judgment be served on opposing counsel before being presented to the court. The notice requirement of Rule 2.9(b) of the District and Circuit Court rules is supplemental to and not inconsistent with Rule 58A, U.R.C.P. To harmonize and give proper effect to these rules, we hold that compliance with Rule 2.9(b) is necessary in order that a judgment be properly "filed" as that term is used in Rule 58A(c), U.R.C.P.
Practical considerations and fairness in appellate procedure support this conclusion. Prior to promulgation of Rule 2.9(b), counsel were obliged to constantly check with the court clerk to determine whether a judgment had been filed. On occasion, because of the press of other business and the lack of notice, filing dates were missed and what may have been meritorious appeals, dismissed. The District Court and Circuit Court Rules were designed in part to obviate this problem. Proper effectuation of both rules requires that Rule 2.9(b) of the District and Circuit Court Rules be read together with Rule 58A of the Utah Rules of Civil Procedure. 2
The January 15 judgment, like the earlier one, was submitted by the prevailing party to the lower court but, unlike the judgment dated January 2, had no mailing certificate establishing that notice had been provided to opposing counsel. Since the second judgment was the only one which complied with both the state and local rules and hence was the only one properly "filed" within the meaning of Rule 58A, the notice of appeal was properly filed based on the judgment filed January 15.
Plaintiffs' position is that the collision in which they were injured occurred because of a dangerously designed, constructed, and maintained electric traffic-control semaphore, or series of semaphores, at the intersection of 500 West and 1300 South in Salt Lake City.
According to uncontroverted facts, as the car in which the plaintiffs were passengers traveled westward on 1300 South to make a left turn at the intersection of 500 West and 1300 South, the eastbound traffic at 500 West was stopped, and it appeared safe to the driver of that vehicle to complete his left turn. However, the red light which controlled the eastbound traffic turned green during the time the light controlling the traffic from the opposite direction, which was moving into the intersection for left turns as well as forward movement, remained green. As the driver of the plaintiffs' car was completing a left turn, a car in the southernmost eastbound lane, driven by defendant Brad Ingersoll, collided with the plaintiffs' car, hitting it broadside.
Plaintiffs argue that the trial court erred in ruling that plaintiffs' action was barred by sovereign immunity and that the State is not liable under § 63-30-8, which provides:
Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.
Contrary to the State's...
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