HEBERTSON v. BANK ONE, UTAH, NA

• Decision Date: 02 December 1999
• Docket Number: No. 980226-CA.,980226-CA.
• Citation: HEBERTSON v. BANK ONE, UTAH, NA, 995 P.2d 7, 1999 Utah Ct. App. 342 (Utah App. 1999)
• Parties: Randi HEBERTSON, Plaintiff and Appellant, v. BANK ONE, UTAH, N.A., fka Valley Bank & Trust Company; et al., Defendants and Appellees.
• Court: Utah Court of Appeals

995 P.2d 7

1999 Utah Ct. App. 342

Randi HEBERTSON, Plaintiff and Appellant, v. BANK ONE, UTAH, N.A., fka Valley Bank & Trust Company; et al., Defendants and Appellees.

No. 980226-CA.

Court of Appeals of Utah.

December 2, 1999.

Timothy C. Houpt, Jones Waldo Holbrook & McDonough, Salt Lake City, for Appellant.

Daniel L. Steele, Bennett Tueller & Johnson, and John Clyde Hansen, Petersen & Associates, Salt Lake City, for Appellees.

Before WILKINS, P.J., and JACKSON and ORME, JJ.

OPINION

ORME, Judge:

¶ 1 Plaintiff Randi Hebertson appeals the trial court's award of summary judgment in favor of defendants Bank One, Utah, formerly known as Valley Bank & Trust Company (Bank One), and Dime Savings Bank of New York, FSB (Dime Savings). Because we conclude that the savings statute, Utah Code Ann. § 78-12-40 (1996), permits a plaintiff to refile timely successive actions after each is dismissed, so long as the dismissal is not on the merits and the refiled action is substantially the same as the previous action, we reverse.

BACKGROUND

¶ 2 "In reviewing a grant of summary judgment, we consider the facts in the light most favorable to the nonmoving party, here the appellant[]." Parker v. Dodgion, 971 P.2d 496, 496-97 (Utah 1998).

¶ 3 This appeal affords this court a second occasion to consider Ms. Hebertson's attempt to recover for injuries sustained in 1988. On December 31 of that year, while accompanying her daughter to an appointment at Willowcreek Plaza, a professional office complex in Salt Lake County, Hebertson slipped and fell on some ice, sustaining an injury to her back that required multiple surgeries. Within the next three days, Hebertson contacted the building manager, who referred her to the building's insurance carrier, State Farm Insurance. Having been unable to reach a settlement of her claim with the insurer, Hebertson filed a complaint against "Willowcreek Plaza" approximately one month before the statute of limitations was to expire and served process upon a manager employed by Willowcreek Plaza, L.C. As it turned out, however, although Willowcreek Plaza, L.C. owned the office complex when the complaint was filed, at the time of the accident it was owned by Bank One and Dime Savings, which had acquired it by foreclosure.¹

¶ 4 On the motion of Willowcreek Plaza, L.C., the trial court dismissed this first action without prejudice. Relying on the savings statute in Utah Code Ann. § 78-12-40 (1996), Hebertson filed a second complaint, again naming "Willowcreek Plaza" in the caption as the defendant, but naming in the body of the complaint and serving Bank One and Dime Savings. See Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1391 (Utah 1996). Bank One and Dime Savings contended they could not be sued under the name Willowcreek Plaza and moved to dismiss. The trial court granted the motion. See id. Although Hebertson objected to dismissal of this action, she did not move to amend the complaint to conform the parties named in the caption to those described in the complaint's body. Rather, she insisted that Bank One and Dime Savings were doing business under the name Willowcreek Plaza and thus could be sued under that name. See id. See generally Utah R. Civ. P. 17(d). In Hebertson v. Willowcreek Plaza, 895 P.2d 839, 841 (Utah Ct.App.1995), this court rejected that contention and upheld the dismissal. The Utah Supreme Court affirmed our decision.² See Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1392 (Utah 1996).

¶ 5 Within a year of the Supreme Court's affirmance of the second complaint's dismissal, and again relying on the savings statute, Hebertson filed her fourth complaint, naming Bank One and Dime Savings as defendants in both the caption and body. On June 16, 1997, Bank One and Dime Savings were served with a summons and a copy of this fourth complaint. Bank One and Dime Savings moved to dismiss this action under Rule 12(b)(6), Utah Rules of Civil Procedure, arguing that the savings statute did not apply beyond a single refiling and the action was therefore barred by the statute of limitations. Hebertson opposed the motion, arguing that the savings statute allows multiple refilings. Because it considered matters outside the pleadings, the trial court correctly treated the motion as one for summary judgment, see Utah R. Civ. P. 12(b), 56(c); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 838 n. 3 (Utah 1996), and granted summary judgment in favor of Bank One and Dime Savings. The trial court ruled that the savings statute allows only a single refiling and that even if multiple refilings were allowed, Hebertson could not include new defendants in the refiled action. Hebertson again appeals.

STANDARD OF REVIEW

¶ 6 "`Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.' Because the question of whether summary judgment is appropriate is a question of law, we accord no deference to the trial court." Parker v. Dodgion, 971 P.2d 496, 497 (Utah 1998) (quoting Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993)).

MULTIPLE REFILINGS UNDER THE SAVINGS STATUTE

¶ 7 This case squarely presents us for the first time with the issue of whether the savings statute permits a plaintiff to file more than one new action after a dismissal not on the merits.³ To resolve this issue we must construe Utah Code Ann. § 78-12-40 (1996).

¶ 8 "In matters of statutory construction, `[t]he best evidence of the true intent and purpose of the Legislature in enacting [an] Act is the plain language of the Act.'" Platts v. Parents Helping Parents, 947 P.2d 658, 662 (Utah 1997) (quoting Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984)). See also Sierra Club v. Utah Solid & Hazardous Waste Control Bd., 964 P.2d 335, 345 (Utah Ct.App. 1998) ("`[W]here the statutory language is plain and unambiguous, [the court] will not look beyond it to divine legislative intent.'") (quoting Utah Sign, Inc. v. Utah Dep't of Transp., 896 P.2d 632, 633-34 (Utah 1995)). Moreover, we "assume that `each term in the statute was used advisedly.'" Id. (quoting Savage Indus., Inc. v. State Tax Comm'n, 811 P.2d 664, 670 (Utah 1991)).

¶ 9 The Utah savings statute provides:

If any action is commenced within due time and a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff, or if he dies and the cause of action survives, his representatives, may commence a new action within one year after the reversal or failure.

Utah Code Ann. § 78-12-40 (1996). By beginning with the word "if," the statute suggests a set of conditions will follow.⁴ It then recites conditions, the occurrence of which invokes the application of the statutory consequences. The conditions are: (1) "any action is commenced within due time and a judgment thereon for the plaintiff is reversed;" or (2) "the plaintiff fails in such action[ — i.e., any action commenced within due time — ]or upon a cause of action otherwise than upon the merits;" and (3) the applicable limitations period has expired. Id. See also Hansen v. Department of Fin. Insts., 858 P.2d 184, 187 (Utah Ct.App.1993) (holding savings statute did not apply where action was dismissed within original limitations period).

¶ 10 Because the first two conditions were drafted in the disjunctive, Hebertson need only satisfy one of them and the third condition for the statute to apply. The third condition was clearly satisfied here because the limitations period had long since expired. See Hebertson, 923 P.2d at 1390. Because there was no reversal of a judgment for Hebertson, and thus the first condition does not apply, if Hebertson satisfies the second alternative condition — i.e., that "the plaintiff fails in [any action commenced within due time] otherwise than upon the merits" — the savings statute applies. Here, because the trial court dismissed the second complaint without prejudice, the action did not fail on the merits. The question remains whether it was filed "within due time." If it was, the action commenced with plaintiff's fourth complaint was timely because it was filed within one year of the Utah Supreme Court's affirmance of the dismissal of plaintiff's second complaint. If the second action was not filed "within due time" for purposes of the savings statute, plaintiff had no right to file the fourth complaint.

¶ 11 Our Supreme Court has already held that, for purposes of the savings statute, an action is "commenced" when the new complaint is filed. See Muir v. W.H. Burt Explosives, Inc., 851 P.2d 645, 647 (Utah 1993). Further, the term "within" denotes "on the inside or on the inner side" and "inside the bounds of a place or region," Webster's Third New International Dictionary 2627 (1976), while "due" refers to that which is "[j]ust; proper; regular; lawful; sufficient." Black's Law Dictionary 499 (6th ed.1990). Hence, an "action commenced within due time" refers to an action filed inside the period of time authorized by law.

¶ 12 Defendants would have us equate "action commenced within due time" narrowly, i.e., as being an action commenced within the time allowed by the applicable statute of limitations. This view overlooks that the savings statute itself establishes a time frame within which to file an action, indeed, an action that would be untimely under the statute of limitations. Accordingly, we believe that Hebertson's second action was "commenced within due time" when she filed it within the year authorized by the savings statute.

¶ 13 The plain language of section 78-12-40 is simply no bar to serial recourse to the savings statute. Therefore, Hebertson's fourth action was timely because it was brought within one year of the failure, not on the merits, of her second action, which...