Graham v. Davis County Solid Waste Management and Energy Recovery Special Service Dist.

• Decision Date: 29 April 1999
• Docket Number: No. 980218-CA,980218-CA
• Parties: 368 Utah Adv. Rep. 19, 1999 UT App 136 Mark E. GRAHAM, Plaintiff, Appellant, and Cross-appellee, v. DAVIS COUNTY SOLID WASTE MANAGEMENT AND ENERGY RECOVERY SPECIAL SERVICE DISTRICT, the District's Administrative Control Board; and Legrand Bitter, the District's Executive Director, Defendants, Appellees, and Cross-appellant.
• Court: Utah Court of Appeals

Page 363

979 P.2d 363

368 Utah Adv. Rep. 19, 1999 UT App 136

Mark E. GRAHAM, Plaintiff, Appellant, and Cross-appellee, v. DAVIS COUNTY SOLID WASTE MANAGEMENT AND ENERGY RECOVERY SPECIAL SERVICE DISTRICT, the District's Administrative Control Board; and Legrand Bitter, the District's Executive Director, Defendants, Appellees, and Cross-appellant.

No. 980218-CA.

Court of Appeals of Utah.

April 29, 1999.

Jeffrey J. Hunt and R. Eric Smith, Parr, Waddoups, Brown, Gee, Loveless, Salt Lake City, for Appellant.

Larry S. Jenkins and Susan J. Mueller, Wood & Crapo, LLC, Salt Lake City, for Appellees.

Before GREENWOOD, Associate P.J., and DAVIS, and JACKSON, JJ.

OPINION

GREENWOOD, Associate Presiding Judge:

¶1 Plaintiff Mark E. Graham appeals the trial court's grant of summary judgment, dismissing his complaint alleging the Davis County Solid Waste Management and Energy Recovery Special Service District (the District) violated Utah's Government Records Access and Management Act (GRAMA). See Utah Code Ann. §§ 63-2-101 to -906 (1997 & Supp.1998). The District cross-appeals the trial court's denial of its Motion to Dismiss or for Summary Judgment contending the trial court lacked jurisdiction. We affirm.

BACKGROUND

¶2 On April 28, 1997, Graham sent a letter to the District asking that it give him various documents ¹ to educate the members of Residents of Davis County Clear Air Committee (the Committee), a nonprofit organization to which Graham belonged. The District responded by letter dated May 7, 1997, informing Graham that the contract he had requested between the District and Rigo & Rigo Associates would be available to him upon payment of $2 in copying fees. The District also informed Graham that all other documents he requested, consisting of several hundred pages from various locations, would be made available to him only upon payment of copying fees as well as a $20 per hour compilation fee. In a letter to the executive director of the District, LeGrand Bitter (Bitter), Graham stated that under GRAMA, the District could not charge the $20 per hour compilation fee and asked that the District make the documents available to him between May 27 and June 10, 1997. Bitter responded that the documents would be available for review during the time period requested, but that the District intended to charge Graham the $20 per hour compilation fee under GRAMA. A subsequent letter from Bitter told Graham that, while there was no charge for inspecting the documents, any copying fees and $280 in compilation fees must be paid before Graham would be allowed to inspect the documents.

¶3 Pursuant to District Ordinance 92-C, ² Graham appealed the $280 charge for staff time involved in compiling the requested documents, arguing that both GRAMA and Ordinance 92-C prohibited the District from charging Graham for staff time spent compiling the records. Bitter denied Graham's appeal, informing Graham that he had thirty days to file a written appeal with the District's Administrative Control Board (the Board). Graham timely appealed to the Board which, after hearing argument from Graham, unanimously affirmed the denial.

¶4 On July 30, 1997, pursuant to Ordinance 92-C and section 63-2-404(2) of the Utah Code, Graham filed a complaint naming the Committee as plaintiff in Second District Court, alleging the District violated its own ordinance and GRAMA in charging him $20 per hour in compilation fees. See Utah Code Ann. § 63-2-404(2) (1997). The District's answer to his complaint alerted Graham to the fact that he could not file a complaint on behalf of the Committee. He therefore moved to amend the complaint, substituting himself as plaintiff. The District responded by filing a Motion to Dismiss or for Summary Judgment, arguing the court lacked jurisdiction to hear the case. The same day the District filed this motion, the trial judge granted Graham's request to amend the complaint. After receiving briefs from both parties on the jurisdictional issue, the trial court denied the District's Motion to Dismiss or for Summary Judgment. The court also granted Graham's request to amend the complaint and related the amended complaint back to the date of the original filing under Rule 15 of the Utah Rules of Civil Procedure.

¶5 Graham subsequently filed a Motion for Summary Judgment and the District responded by filing a Cross-Motion for Summary Judgment. The court granted the District's Motion for Summary Judgment, concluding the imposition of the $280 fee was proper under GRAMA. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶6 The District argues the trial court erred in allowing Graham to amend the complaint and relating the amended complaint back to the original filing date. We review the trial court's decision allowing Graham to amend the original complaint, substituting himself as plaintiff, for an abuse of discretion. See Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92 (Utah 1992). However, whether the original complaint was void ab initio and would deprive the court of jurisdiction presents a question of law that we review without deference. See Bonneville Billing v. Whatley, 949 P.2d 768, 771 & 772 n. 3 (Utah Ct.App.1997).

¶7 Graham argues the trial court erred in granting summary judgment in the District's favor on his claim that the District violated GRAMA by charging him a compilation fee in conjunction with his request for various District records. On appeal from a grant of summary judgment, we view the evidence in the light most favorable to the non moving party and affirm only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); Drysdale v. Ford Motor Co., 947 P.2d 678, 680 (Utah 1997). In addition, the trial court's grant of summary judgment was based on an interpretation of GRAMA, presenting a question of statutory interpretation that we review under a correction-of-error standard. See Jeffs v. Stubbs, 970 P.2d 1234 (Utah 1998).

ANALYSIS

I. Jurisdictional Issue

¶8 The District argues the original complaint filed by the Committee was void because it violated both the Utah Assumed Name Statute, see Utah Code Ann. § 42-2-5(1) (1998), and the rule prohibiting an unincorporated association from being represented by a non attorney. See Life Science Church v. Shawano, 221 Wis.2d 331, 585 N.W.2d 625, 627 (App.1998), review denied, 221 Wis.2d 656, 588 N.W.2d 633 (1998). The District also argues that because the original complaint was void and the amended complaint was not timely filed, the trial court lacked jurisdiction. See Utah Code Ann. § 63-2-404(2)(b)(i) (1997) (providing party seeking judicial review from records committee must file petition within thirty days after governmental entity has responded to request for records). In opposition, Graham contends that under Utah's liberal rules governing the amendment of complaints, the trial court properly allowed Graham to amend his complaint and related the amended complaint back to the original filing date.

¶9 In determining whether the Committee's original complaint was void, we address the threshold question of whether an unincorporated association may bring an action in the courts of this state. Because the history of an unincorporated association's ability to sue provides relevant background for our discussion, we first discuss the traditional rules governing an unincorporated association's ability to sue and statutory enactments that have changed the common law rules.

¶10 Although most jurisdictions traditionally allowed an unincorporated association to be sued, such organizations, absent specific statutory authority, were not recognized as legal entities and, as such, lacked the capacity to sue. See Disabled Am. Veterans v. Hendrixson, 9 Utah 2d 152, 155, 340 P.2d 416, 418 (Utah 1959) ("Under Rule 17(d) of the Utah Rules, an unincorporated association may be sued by its common name but no authority has been given for it to institute an action in such common name."); see also Ionic Lodge # 72 F. & A.A.M. v. Ionic Lodge Free Ancient & Accepted Masons # 72 Co., 232 N.C. 252, 59 S.E.2d 829, 832 (1950) (stating unless given capacity to sue "by some pertinent statute, an unincorporated association has not the capacity to sue"), rev'd on other grounds, 232 N.C. 648, 62 S.E.2d 73, 75 (1950). Consequently, any legal action taken on behalf of an unincorporated association was considered a nullity. See Oliver v. Swiss Club Tell, 222 Cal.App.2d 528, 35 Cal.Rptr. 324, 330 (1963).

¶11 However, as unincorporated associations such as "social clubs, religious organizations, environmental societies, athletic organizations, condominium owners, lodges, stock exchanges and veterans," began to proliferate, courts recognize[d] that

the society of today rests upon the foundation of group structures of all types, such as the corporation, the cooperative society, [and] the public utility. Such groups must, of course, operate successfully within the society; one of the prerequisites to that functioning is, generally, liability to suit and opportunity for suit. To frustrate that viability by the imposition of outmoded concepts would be to impair the institutions as well as to impede the judicial process.

Barr v. United Methodist Church, 90 Cal.App.3d 259, 153 Cal.Rptr. 322, 327 (1979) (quoting Daniels v. Sanitarium Ass'n, Inc., 59 Cal.2d 602, 30 Cal.Rptr. 828, 381 P.2d 652 (1963))(emphasis added). As a result, many states, including Utah, enacted legislation or adopted rules giving unincorporated associations the power to sue. See Utah R. Civ. P. 17(d) advisory committee note (stating purpose of amendment to Rule effective September 1, 1991, was to "conform to the holding in Cottonwood Mall Co. v. Sine, 767 P.2d 499 (Utah 1988), which allows an unincorporated association to sue in its own name"); Ionic Lodge, 59 S.E.2d at 834 ("[I]t can hardly be questioned that if [an unincorporated]...