Mallory v. Brigham Young Univ.

Decision Date23 August 2012
Docket NumberNo. 20100991–CA.,20100991–CA.
Citation715 Utah Adv. Rep. 53,2012 UT App 242,285 P.3d 1230
PartiesRandal Roy MALLORY, Plaintiff and Appellant, v. BRIGHAM YOUNG UNIVERSITY, Sarah Robinson, and Does I–X, Defendants and Appellees.
CourtUtah Court of Appeals


Curtis L. Wenger, Salt Lake City, for Appellant.

Steven M. Sandberg, Provo, for Appellee Brigham Young University.



McHUGH, Presiding Judge:

¶ 1 Randal Roy Mallory appeals from the trial court's order dismissing his First Amended Complaint (the Complaint) for lack of subject matter jurisdiction due to Mallory's failure to file a notice of claim under the Governmental Immunity Act of Utah (the GIAU).1SeeUtah Code Ann. § 63G–7–401 (2011).2 Mallory contends that the trial court erred in concluding that the GIAU provides immunity to defendants, Brigham Young University (BYU) and Sarah Robinson (collectively, Defendants), and that the trial court exceeded its discretion by denying Mallory's motion to conduct additional discovery. We affirm in part, and reverse and remand in part, for further proceedings consistent with this opinion.


¶ 2 On April 12, 2008, after a football game, Mallory was waiting on his motorcycle to enter a public street from a BYU parking lot. Robinson, acting as a BYU traffic cadet, directed Mallory to make a left turn onto University Avenue. Upon entering University Avenue, Mallory's motorcycle and an automobile driven by Vern Stratton collided. Mallory suffered serious bodily injury and incurred economic damages as a result of the accident.

¶ 3 On July 13, 2009, Mallory filed the Complaint 4 in the Third Judicial District Court for Salt Lake County, alleging that BYU, Robinson, other unidentified “agent[s] and employee[s] of BYU,” and Stratton acted negligently.5 On August 7, 2009, Defendants filed an answer to the Complaint that included the following affirmative defense:

Plaintiff's claims are barred by Utah Code Title 63G, Chapter 7. The Defendant Robinson was at all times pertinent to the Plaintiff's Complaint, an agent of Provo City, State of Utah. No Notice of Claim has been filed with, nor served upon, Provo City, regarding the Plaintiff's claims.

¶ 4 With the answer, BYU filed a Motion for Change of Venue, seeking to have the case transferred to the Fourth District Court in Utah County. In a supporting memorandum, BYU argued that Utah County was more convenient because BYU is headquartered there, all the defendants reside there, and the accident occurred there. Mallory countered that some witnesses reside in Salt Lake County and also expressed concern that it would be difficult to find an unbiased jury in Utah County because of BYU's prominence there. However, Mallory did not provide any detail about the number of witnesses in Salt Lake County compared to the number in Utah County in his opposition papers. Relying on the briefing of the parties without argument, the Third District Court granted the change of venue. As a result, the matter was transferred to the Fourth District Court and assigned to Judge Claudia Laycock.

¶ 5 On February 12, 2010, Defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction (the Motion to Dismiss) under rule 12(b)(1) of the Utah Rules of Civil Procedure. In a supporting memorandum, they argued that the trial court lacked subject matter jurisdiction because Mallory had not filed a notice of claim as required by the GIAU. According to Defendants, a notice of claim was required to confer subject matter jurisdiction on the court because Robinson was acting as a servant or agent of Provo City at the time of the accident. In support of the Motion to Dismiss, Defendants filed an affidavit of a peace officer employed by BYU (Peace Officer). Peace Officer's affidavit indicated that the “University Police ha[d] been certified by the commissioner of the Department of Public Safety as a law enforcement agency according to the rules of the Department of Public Safety,” and that Robinson was a trained traffic cadet who was directing traffic on Provo's public streets after a BYU football game.

¶ 6 In his opposition memorandum, Mallory argued that “the inclusion of facts outside the four corners of the [C]omplaint either require[d] a denial of [Defendants'] motion [to dismiss] or the motion must be treated as one for summary judgment.” 6 In addition, Mallory requested that resolution of the Motion to Dismiss be deferred until after the completion of additional discovery as allowed by rule 56(f) of the Utah Rules of Civil Procedure. Finally, Mallory claimed that summary judgment was inappropriate, even in the absence of additional discovery, because there were material issues of disputed fact and because the Defendants were not entitled to judgment as a matter of law.

¶ 7 On March 29, 2010, Defendants filed a reply memorandum supporting their motion to dismiss, which was supported by a supplementalaffidavit of Peace Officer. The supplemental affidavit indicated that Peace Officer was Robinson's supervisor and related details of his supervision of her on the night of the accident.

¶ 8 The trial court set oral argument on the motion to dismiss for May 10, 2010. The transcript from those proceedings indicates that Judge Laycock began with what she referred to as her “usual disclaimer on BYU cases.” Judge Laycock provided a detailed account of her association with BYU, both as the daughter of a BYU orchestra conductor and as an alumna of its undergraduate and law schools, and further explained that any of the parties could move to disqualify her from presiding over the case. In response to Judge Laycock's disclosures, Mallory's counsel stated, “I certainly am perfectly comfortable with you on the bench,” but indicated he would raise the issue with his client. However, he then asserted that he “certainly want[ed] to follow through with today's hearing.” With that assurance, Judge Laycock entertained arguments on the motion, eventually taking the matter under advisement.

¶ 9 On July 2, 2010, the trial court entered a Memorandum Decision, Conclusions of Law, and Order on the Motion to Dismiss. First, the court rejected Mallory's argument that Defendants' reliance on matters outside the Complaint, including Peace Officer's affidavits, converted the motion into one for summary judgment or mandated that the court grant Mallory's rule 56(f) motion for additional discovery. The trial court then concluded that [b]ecause Robinson was directing traffic under color of Provo City's authority, she is an employee of Provo City who is entitled to governmental immunity under the [GIAU].” Consequently, the trial court ruled that Mallory's failure to file a notice of claim as required by the GIAU “strip[ped it] of subject matter jurisdiction.” On October 25, 2010, the trial court entered an Order and Final Judgment dismissing the claims against Defendants for lack of subject matter jurisdiction. Mallory filed a timely appeal.


¶ 10 On appeal, Mallory challenges the trial court's denial of his rule 56(f) motion for additional discovery. “To the extent this issue requires us to interpret rules of civil procedure, it ‘presents a question of law which we review for correctness.’ Harris v. IES Assocs., Inc., 2003 UT App 112, ¶ 25, 69 P.3d 297 (quoting Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 42, 989 P.2d 1077). We review the trial court's denial of a request for additional discovery under rule 56(f) of those rules for an abuse of discretion, and will “overturn it only if the denial of the motion exceed[s] the limits of reasonability.” See Petersen v. Riverton City, 2010 UT 58, ¶ 25, 243 P.3d 1261 (alteration in original) (internal quotation marks omitted).

¶ 11 In addition, Mallory argues that the trial court erred in granting Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction. “Compliance with the [Utah Governmental] Immunity Act is a prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities. Accordingly, a district court's dismissal of a case based on governmental immunity is a determination of law that we afford no deference.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632 (citations omitted) (interpreting the Utah Governmental Immunity Act (the UGIA), the predecessor statute to the GIAU).

¶ 12 Finally, Mallory contends that the Third District Court erred when it granted BYU's request for a change of venue. “Absent a clear abuse of discretion, we will not disturb a trial court's ruling on a motion to change venue. We will reverse such a decision only if it exceeds the bounds of reasonability.” U.S. Bank Nat'l Ass'n v. HMA, LC, 2007 UT 40, ¶ 30, 169 P.3d 433 (internal quotation marks omitted).

I. The Motion to Dismiss Was Not Converted to a Motion for Summary Judgment.

¶ 13 Mallory argues that, by relying on facts not set forth in the Complaint, Defendants converted the motion to dismiss for lack of subject matter jurisdiction under rule 12(b)(1) to one for summary judgment under rule 56. See generallyUtah R. Civ. P. 12(b)(1) (motion to dismiss for lack of subject matter jurisdiction); id. R. 56 (motion for summary judgment). Rule 12(b) provides that if, in a rule 12(b)(6) motion, “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” See generally id. R. 12(b). Mallory claims that Defendants relied on matters outside the pleadings and that, therefore, he was entitled to conduct additional discovery pursuant to rule 56(f). See id. R. 56(f) (motion for further discovery). The Utah Supreme Court has previously rejected this argument.

¶ 14 In Spoons v. Lewis, 1999 UT 82, 987 P.2d 36, a plaintiff sued a district court judge without first filing a notice of claim under the predecessor of the GIAU, the UGIA. Seeid....

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