Litster v. Utah Valley Community College

• Decision Date: 01 September 1994
• Docket Number: No. 930634-CA,930634-CA
• Citation: 881 P.2d 933
• Parties: 94 Ed. Law Rep. 599 Clifford LITSTER, Plaintiff and Appellant, v. UTAH VALLEY COMMUNITY COLLEGE, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 933

881 P.2d 933

94 Ed. Law Rep. 599

Clifford LITSTER, Plaintiff and Appellant, v. UTAH VALLEY COMMUNITY COLLEGE, Defendant and Appellee.

No. 930634-CA.

Court of Appeals of Utah.

Sept. 1, 1994.

Denver C. Snuffer, Jr. (argued), Maddox, Nelson, Snuffer & Dahle, Murray, for appellant.

Jan Graham, Atty. Gen., and Elizabeth King, Asst. Atty. Gen., Salt Lake City, for appellee.

Before BENCH, BILLINGS, and ORME, JJ.

OPINION

BILLINGS, Presiding Judge:

Plaintiff Clifford Litster appeals from a summary judgment entered in favor of defendant Utah Valley Community College (UVCC) on the basis that he failed to comply with the notice provisions of the Utah Governmental Immunity Act (the Act). We affirm.

FACTS

Litster was a student enrolled in the lineman program at UVCC, a governmental entity. ¹ On December 11, 1990, while practicing power line construction and maintenance techniques in his lineman class, Litster scaled a damaged power pole and fell, sustaining severe injuries.

On October 24, 1991, Litster filed a notice of claim with UVCC, pursuant to the notice provisions of the Act, Utah Code Ann. §§ 63-30-11 and -12 (1993). On January 24 of the following year, he filed a complaint alleging UVCC was liable for the injuries he sustained while in training in the lineman program. UVCC answered Litster's subsequently filed amended complaint on April 15, 1992, and asserted, among other affirmative defenses, that Litster's cause of action was barred by his failure to file notice of claim with the attorney general, as required by the Act. UVCC simultaneously filed a motion for summary judgment supported by an affidavit from the lead secretary for the Litigation Division of the Utah Attorney General's office, who maintains under her custody and control all notices of claim received by that office. She stated: "[N]o notice of claim to the Attorney General from or on behalf of Clifford Litster has been received by the Utah Attorney General's Office." Attached to UVCC's motion was a photocopy of the two-page, typewritten letter giving UVCC notice of Litster's claim. The letter is dated October 24, 1991, addressed to "Utah Valley Community College, 800 West 1200 South, Orem, UT," and is signed by Denver C. Snuffer, Jr., Litster's attorney.

Litster responded to UVCC's motion by arguing that a material issue of fact existed regarding whether he sent notice of claim to the attorney general and, therefore, summary judgment was inappropriate. He offered the supporting affidavit of Mr. Snuffer, which provided:

1. It is the official office procedure of Maddox, Nelson, Snuffer & Dahle to properly notify the Utah Attorney General's Office pursuant to the Utah Government Immunity Act when pursuing a claim against the state of Utah or any of it's [sic] agencies.

2. On October 24, 1991, I sent a Notice of Claim Under the Government Immunity Act to Utah Valley Community College, 800 West 1200 South, Orem, Utah.

3. The official firm[-]maintained office file for this matter contains my handwritten direction to my secretary that the Notice of Claim be mailed to the Utah Attorney General. (Copy attached)

4. It is the policy of my office that when direction is given to send notices, that direction is followed.

5. I have no doubts that notice was in fact sent in this case to the Attorney General's office as required by statute.

UVCC's reply, captioned "Motion to Strike Affidavit of Attorney Snuffer," asserted that Mr. Snuffer's affidavit was "immaterial to the issue before the court" and should thus be stricken pursuant to Rule 12(f) of the Utah Rules of Civil Procedure. In its memorandum supporting the motion, UVCC stated:

Plaintiff's counsel, Denver Snuffer, suggests in his affidavit that since he told his secretary to send a notice, and since his secretary is required by office policy to do what she is told, the notice of claim must have been sent.

This argument is immaterial. A notice is deemed served on the government as of "the date shown by the post office cancellation mark" on the envelope or as of the date of mailing. Utah Code Ann. § 63-37-1. In this case, there is no evidence concerning the postmark or the date of mailing. There is nothing from counsel or his secretary that states that a notice was in fact mailed. It is not sufficient for counsel simply to state that his office's policy is to mail notices. Counsel does nothing but speculate when he opines "I have no doubts that notice was in fact sent in this case to the Attorney General's office as required by statute." A fact issue cannot be created by mere testimony that notices are generally filed. There must be evidence of mailing. There being no fact issue, the motion for summary judgment should be granted.

Litster replied to UVCC's motion to strike Snuffer's affidavit, pointing out:

Rule 406 of the Utah Rules of Evidence permits the introduction of evidence of the "habit" of a person or of the "routine practice" of an organization to prove that the conduct of a person or organization on a particular occasion was in conformance with the habit or routine practice. There is a dispute whether notice was mailed to the Attorney General's office. The Affidavit that is the subject of the Defendant's motion introduces evidence that is permitted under Rule 406 of the Utah Rules of Evidence.... While a postmark is one form of evidence of mailing, that does not prevent other forms of evidence from being admitted. Nor does it negate the provisions of Rule 406 of the Utah Rules of Evidence.

UVCC filed a final responsive memorandum June 23, 1992. In the memorandum UVCC noted that, pursuant to section 63-37-1 of the Utah Code, "a document is deemed filed with a state agency on the date ... 'it is mailed if the sender established by competent evidence that the ... document was deposited in the United States mail on or before the date for filing. Utah Code Ann. § 63-37-1.' " UVCC then argued that Mr. Snuffer's affidavit should be stricken because "the statements it contains are legally insufficient" to create an issue of fact, and thus the affidavit is immaterial. Specifically, UVCC contended:

In order to make an adequate showing of a practice of mailing, there must be more than conclusory statements about office practice. Moreover, proof that a document was prepared and that instructions were give[n] to mail it does not alone establish mailing custom. To prove mailing custom, there must be evidence that shows a practice of collecting documents, of placing and sealing them in addressed stamped envelopes, and of collecting outgoing mail in the office and placing it in the mail box.

In the present case, the affidavit of counsel contains a conclusory statement that there is a practice of mailing notices of claim and a statement that he instructed his secretary to mail a notice. This evidence is not legally sufficient under the above authority. There is nothing to show a practice of collecting documents, placing them in stamped addressed envelopes, and collecting the envelopes and placing them in an outgoing mail receptacle. Since the affidavit contains evidence that is legally insufficient to create an issue of fact, the affidavit should be stricken.

The following day, June 24, 1992, UVCC filed a notice to submit for decision. Approximately three weeks later, on July 13, 1992, Litster responded to UVCC's June 23 memorandum, stating:

The challenge to the Affidavit of Attorney Snuffer focuses upon the sufficiency of the content of the Affidavit. In light of the comments and objections of the Defendant, supplemental information is being provided in a supplemental Affidavit attached to this reply.

In this supplemental affidavit, Mr. Snuffer stated:

2. On or about November 25, 1991 I gave instructions to my secretary to mail notice of the claim of Clifford Litster to the Attorney General's Office for the State of Utah.

3. It is the practice of my secretary to comply with instructions on the day or the day after the instruction is given.

4. It is the practice of my secretary to take the notice and place it in an envelope with postage prepaid thereon and to deposit that in a United States Post Office Box located in my building. It is the practice of the United States Post Office to pick up the mail from that Post Office Box at approximately 5:30 to 6:00 p.m. each evening at my office.

5. It is my understanding and my belief that the practice of my office was followed in the present case and that in fact notice was copied, placed in a postage prepaid envelope, addressed to the Utah State Attorney General's Office, and mailed on November 25 or November 26, 1991. ²

The trial court granted UVCC's motion for summary judgment on April 9, 1993. In its ruling, the court referenced the evidence contained in Snuffer's "two affidavits," focusing specifically on paragraphs (2) and (3) of the second affidavit, in which Snuffer states the date upon which he gave direction to his secretary to mail the notice, and the date upon which she would have mailed it had she acted in conformance with the firm's office practice. The court, relying on section 63-37-1, framed the issue as "whether counsel's affidavit is 'competent evidence' for purposes of deeming the notice of claim filed." In finding they were not, the court stated:

The affidavits of counsel contain general statements of the office[']s practice to properly notify the Utah Attorney General's Office and statements about the practice of his secretary. This Court recognizes that evidence of habit and/or business practice can be evidence that a person or business acted in conformity with that habit or practice. Yet this Court determines that the affidavits submitted do not establish with competent evidence that this is in fact what occurred.

Accordingly, the court granted UVCC's motion for summary judgment. Litster appeals.

STANDARD OF REVIEW

Summary judgment is properly granted if there are no genuine issues as to any material...