DeBry v. Salt Lake County, 910217-CA

• Decision Date: 09 June 1992
• Docket Number: No. 910217-CA,910217-CA
• Citation: 835 P.2d 981
• Parties: Robert J. DeBRY and Joan DeBry, Plaintiffs and Appellants, v. SALT LAKE COUNTY, et al., Defendants and Appellees.
• Court: Utah Court of Appeals

Page 981

835 P.2d 981

Robert J. DeBRY and Joan DeBry, Plaintiffs and Appellants, v. SALT LAKE COUNTY, et al., Defendants and Appellees.

No. 910217-CA.

Court of Appeals of Utah.

June 9, 1992.

Certiorari Granted Oct. 20, 1992.

Edward T. Wells, Salt Lake City, for plaintiffs and appellants.

David E. Yocom and Paul G. Maughan, Salt Lake City, for defendants and appellees.

Before GARFF, GREENWOOD and RUSSON, JJ.

OPINION

RUSSON, Judge:

Robert and Joan DeBry appeal the district court's order granting summary judgment in favor of Salt Lake County and Wallace R. Noble, in his official and individual capacities. We affirm.

I. FACTS

In December 1985, Robert and Joan DeBry purchased a newly constructed building located in an unincorporated area of Salt Lake County. The DeBrys took possession of the building pursuant to a temporary, thirty-day certificate of occupancy, issued by Salt Lake County. However, due to the failure to remedy persisting defects in the building, upon which a permanent certificate of occupancy was conditioned, Salt Lake County served the DeBrys with a notice and order to vacate the building. Subsequently, the DeBrys initiated an action against Salt Lake County and its chief building official, Wallace Ray Noble. ¹

Approximately one year earlier, on November 16, 1984, upon application of Cascade Construction (Cascade), Salt Lake County issued a "footings and foundation permit" for the construction of a commercial building at 4252 South 700 East in unincorporated Salt Lake County. On May 30, 1985, during the construction of that building, the DeBrys signed an earnest money sales agreement to purchase the building from Cascade. On December 6, 1985, a representative of Cascade petitioned the county for a temporary, thirty-day certificate of occupancy for the building, representing to Mr. Noble, a Salt Lake County building official, that all necessary permits for the building had been obtained by Cascade. Relying on that information, as well as a recent inspection by a county inspector, Noble issued the certificate, indicating that there appeared to be no significant hazard that would preclude temporary occupancy while the building was completed and brought into compliance with the building code. The DeBrys closed on the purchase of the building on December 10, 1985.

After issuing the temporary certificate of occupancy, the county discovered that, aside from the "footings and foundation permit," a building permit had never been issued to Cascade; however, the county allowed the temporary certificate of occupancy to stand. On March 17, 1986, long after the running of the thirty days under the temporary certificate, Salt Lake County performed an inspection of the DeBrys' property and determined that a permanent certificate of occupancy could not be issued due to persisting defects in the building. Accordingly, on March 19, 1986, the county advised the DeBrys of the specific defects and instructed them to cure the defects within thirty working days. When the DeBrys failed to make the necessary improvements, the county, on May 15, 1986, again notified them that they were occupying the building without a valid certificate of occupancy and requested that the DeBrys secure a building permit and correct the building's defects. Again, the DeBrys took no action.

On October 20, 1986, the DeBrys served the county with an affidavit wherein Kenneth Karren, Jr., a state licensed civil engineer, stated that his inspection of the building revealed serious violations of the uniform building code. On November 3, 1986, the county served the DeBrys a notice and order to vacate the building on the basis of the following facts: (1) There was no valid certificate of occupancy; (2) the temporary certificate of occupancy issued December 6, 1985, had expired; and (3) the corrections required by Salt Lake County on March 19, 1986, subsequent to a requested inspection performed by it had not been made.

In December 1986, the DeBrys appealed the notice and order to the Salt Lake County Board of Appeals. The Board denied the DeBrys' request for extension of time to vacate the building, and refused to order additional inspections until the DeBrys had complied with the terms of the notice and order. The DeBrys petitioned this court for review of the Board's decision, but we dismissed the case for lack of jurisdiction. See Debry v. Salt Lake County, 764 P.2d 627 (Utah App.1988).

The DeBrys subsequently brought this action in the district court. In their complaint, the DeBrys alleged misrepresentation, fraud, negligence, gross negligence, and violations of their constitutional rights by Salt Lake County and Mr. Noble. After answering the complaint, Salt Lake County and Mr. Noble, as well as the DeBrys, moved for summary judgment. The court granted defendants' motion, ruling that the Governmental Immunity Act, as applied to this action, does not violate article I, section 11 of the Utah Constitution, that Salt Lake County was protected under Utah's Governmental Immunity Act, that Salt Lake County and Mr. Noble did not deprive the DeBrys of their rights under the United States Constitution, and that the DeBrys had failed to adequately state a cause of action in fraud for which relief could be granted against the county or Mr. Noble. The court denied the DeBrys' motion.

The DeBrys appeal the trial court's ruling, raising the following issues: (1) Did the trial court err in ruling that the Utah Governmental Immunity Act, as applied in this case, does not violate article I, section 11 of the Utah Constitution?; (2) Did the trial court err in ruling that the county's actions were governmental functions for which immunity had not been waived under Utah Code Ann. § 63-30-10(1)(c) and (d) (1989)?; (3) Did the trial court err in ruling that the county and/or Mr. Noble did not violate the DeBrys' rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution?; and (4) Did the trial court err in ruling that the DeBrys' complaint failed to establish a cause of action for fraud for which relief could be granted against Salt Lake County and Mr. Noble in his representative capacity?

II. STANDARD OF REVIEW

On review of a grant of summary judgment, our inquiry is "whether there is any genuine issue as to any material fact, and if there is not, whether the [defendants] are entitled to judgment as a matter of law." Thornock v. Cook, 604 P.2d 934, 936 (Utah 1979) (citations omitted). Since summary judgment presents for review conclusions of law only, because, by definition, summary judgments do not resolve factual issues, we review those conclusions for correctness, according no deference to the trial court. Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1989).

III. ARTICLE I, SECTION 11 CLAIM

The DeBrys' first claim alleges that the trial court erred in ruling that the Governmental Immunity Act, as applied in the present case, is not violative of article I, section 11 of the Utah Constitution. Article I, section 11 states:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Specifically, the DeBrys argue that Utah Code Ann. § 63-30-4(3) and (4) (1989) ² violates article I, section 11 to the extent that the legislature's enactment of those subsections repealed common law principles which, according to the DeBrys, did not grant broad immunity to counties and its employees, and thus would not bar the present action.

However, the DeBrys do not cite, and we have not found, any persuasive authority for their proposition that counties and county employees were not afforded broad immunity at common law. Further, even if that were the case, they fail to establish any vested cause of action resulting from their alleged injury prior to the legislature's supposed repeal of common law and enactment of section 63-30-4 so as to mount a successful constitutional challenge to that statute under article I, section 11, as required by the Utah Supreme Court in Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), which stated:

[N]either the due process nor the open courts provision [of article I, section 11] constitutionalizes the common law or otherwise freezes the law governing private rights and remedies as of the time of statehood. It is, in fact, one of the important functions of the Legislature to change and modify the law that governs relations between individuals as society evolves and conditions require. However, once a cause of action under a particular rule of law accrues to a person by virtue of an injury to his rights, that person's interest in the cause of action and the law which is the basis for a legal action becomes vested, and a legislative repeal of the law cannot constitutionally divest the injured person of the right to litigate the cause of action to a judgment.

Id. at 676 (citations and footnote omitted) (emphasis added).

Section 63-30-4(3) and (4) was enacted by the legislature in 1978, however, the DeBrys' alleged injury and resulting cause of action did not vest until 1986. Because the DeBrys did not have a vested cause of action under what they contend to be the common law rule, the legislature's enactment of section 63-30-4(3) and (4) did not amount to an unconstitutional divestiture of the DeBrys' right to litigate their claim. Therefore, the DeBrys' challenge to the constitutionality of section 63-30-4 under article I, section 11 fails.

Moreover, even if the DeBrys could maintain a challenge to section 63-30-4, the Utah Supreme Court, in a case similar to the one before us, expressly held that the Governmental Immunity Act's grant of sovereign immunity to state entities does not...