McTee v. Weber Ctr. Condo. Ass'n

• Decision Date: 30 June 2016
• Docket Number: No. 20150327–CA,20150327–CA
• Citation: 2016 UT App 134,379 P.3d 41
• Parties: Lena McTee, Appellee, v. Weber Center Condominium Association, Municipal Building Authority of Weber County, and Weber County, Appellants.
• Court: Utah Court of Appeals

379 P.3d 41

2016 UT App 134

Lena McTee, Appellee,

v.Weber Center Condominium Association, Municipal Building Authority of Weber County, and Weber County, Appellants.

No. 20150327–CA

Court of Appeals of Utah.

Filed June 30, 2016

Linette B. Hutton, Attorney for Appellants.

C. Ryan Christensen, Attorney for Appellee.

Judge Stephen L. Roth authored this Opinion, in which Senior Judge Pamela T. Greenwood concurred and Judge Michele M. Christiansen concurred in the result.¹

Opinion

ROTH

, Judge:

¶ 1 This appeal centers on the notice of claim provision contained in the Governmental Immunity Act of Utah (the Immunity Act). See generally Utah Code Ann. § 63G–7–101 et seq.

(LexisNexis 2014). Weber County appeals the district court's partial denial of its motion to dismiss Lena McTee's personal injury suit under rule 12(b) of the Utah Rules of Civil Procedure, arguing that the district court erred when it concluded that McTee's notice of claim was timely. Because we conclude that McTee's notice of claim complied with the requirements of the Immunity Act, we affirm.

BACKGROUND

¶ 2 At the time of her injury, McTee was an employee of the federal government, specifically the Internal Revenue Service (the IRS). McTee worked in an office that the IRS rented in the Weber Center building located in Ogden, Utah. Several Weber County departments and agencies also occupied office space in the Weber Center. Outside the Weber Center was a sign that stated, “WEBER CENTER[,] FOR LEASING INFORMATION CALL WOODBURY CORPORATION,” followed by two phone numbers, presumably the contact information for the Woodbury Corporation. Connected to the east side of the Weber Center was a parking structure for tenants and their guests.

¶ 3 On January 25, 2012, McTee took a break from work to smoke a cigarette. She exited the building, walked into the parking structure, and sat at a table located inside. Following her break, McTee began to walk back to the building, but, while still in the parking structure, she tripped and fell in a pothole located near a support pillar. As a result of the fall, McTee alleges she “suffered injuries to her lumbar spine, her left ankle, both of her knees, and a facial fracture, and incurred medical bills in excess of $100,000.”

¶ 4 While McTee apparently sought medical attention for her injuries, she made no immediate effort to specifically identify the owner of the Weber Center until approximately a month later when she was approached at work by a woman who stated, “I can't believe that you fell. I've been asking my boss for over a year to fix those potholes.”² Later that same day, McTee and a coworker left the building to “get lunch, and then stop by [McTee's] house” so that McTee could get her cell phone to take pictures of the pothole where she fell. Upon returning from lunch, McTee discovered that “all of the potholes were filled with cement and there were cones around the area.”

¶ 5 On February 7, 2013, slightly over a year after her injury, McTee, through her counsel, submitted a notice of claim to Weber County, the Municipal Building Authority of Weber County (Weber MBA), the Ogden City Recorder, and the State of Utah. Less than a week later, McTee's counsel submitted a GRAMA request to the Weber Center for “any and all documents relating, regarding or referring to the control, maintenance and lease of the parking lot and/or the [Weber Center].”³ McTee's GRAMA request produced almost two hundred pages of documents and diagrams, which Weber County states “identify[ ] how, when and why the building, that is now the Weber Center, and the shopping mall that was directly across the street, were purchased, as well as identifying all parties involved.”

¶ 6 The documents consist of a series of deeds and declarations apparently meant to establish the Weber Center and its attached parking structure as part of a condominium office project. The resulting ownership and management structure is complicated. For example, the underlying land was aggregated through a series of deeds executed on March 18 and 19, 1997, that conveyed property from Third Tierra,⁴ OWM Company,⁵ and Pracvest⁶ to Land of OG, LLC.⁷ Additionally, Practical Building Company⁸ conveyed to Land of OG a percentage ownership in five parcels of land that are identified in the attachment to this deed as “Weber Center Descriptions.” The GRAMA request also included a deed of reconveyance between the title company and Land of OG; a settlement agreement between Ogden City, the Ogden City Redevelopment Agency, the Weber Center Condominium Association, and Weber County; and an addendum to that settlement agreement, which addressed any development, sale, or lease of the Weber Center. In addition, McTee's GRAMA request produced the declaration of condominium for the Weber Center, also dated March 19, 1997.⁹ The condominium declaration identified Weber MBA (described as “a Utah nonprofit corporation”) and Land of OG (described as “a Utah limited liability company”) as declarants. Two special warranty deeds were recorded on March 20, 1997, in which Weber MBA and Land of OG conveyed nine of the Weber Center's fifteen units to Weber MBA in one deed and the remaining six units to Land of OG in the other.

¶ 7 The declaration of condominium states that Weber MBA and Land of OG planned to “develop a commercial use condominium project” to be “known as The Weber Center.” Section thirteen of the declaration, titled “CONDOMINIUM ASSOCIATION AND CONDOMINIUM MANAGEMENT COMMITTEE,” states, “The name in which contracts shall be entered into, title to property shall be acquired, held, dealt in and disposed of, bank accounts shall be opened and suits shall be brought and defended by the Condominium Management Committee ... is: The Weber Center Owners Association.” The composition of the Condominium Management Committee is established according to the “BYLAWS OF THE WEBER CENTER OWNERS ASSOCIATION,” yet another document produced in response to McTee's GRAMA request. The Condominium Bylaws provide that “[t]he Condominium Management Committee shall consist of two (2) members” and identifies Bruce H. Anderson as president and Jeffrey K. Woodbury as secretary. The declaration further provides that “[t]he Condominium Management Committee shall have the powers, duties and responsibilities ... [t]o operate, maintain, repair, improve and replace the Common Areas and Facilities;” “[t]o determine and pay the Common Expenses including expenses of maintenance, repair and replacement of the Common Areas and Facilities;” and “[t]o bring, prosecute and settle litigation for itself, the Condominium Association and the [Weber Center].”¹⁰ Section six of the declaration, titled “DESCRIPTION AND OWNERSHIP OF COMMON AREAS AND FACILITIES” specifically identifies “parking areas” as being a “common area” of the Weber Center. Section fourteen of the declaration titled, “MAINTENANCE, ALTERATION AND IMPROVEMENT,” states that “[t]he maintenance, replacement and repair of the Common Areas and Facilities shall be the responsibility of the Condominium Association” and that the Condominium Association “shall also maintain, replace and repair all common parking areas.” And section twenty-three of the declaration, titled “NOTICES,” directs that communication sent to the Condominium Management Committee be addressed care of Jeffrey K. Woodbury, Woodbury Corporation. The declaration of condominium was signed by Glen H. Burton as the chairperson of Weber MBA and Jeffrey K. Woodbury and Orin R. Woodbury as the managers of Land of OG.

¶ 8 In addition to seeking information on ownership and management of the Weber Center through a GRAMA request, McTee's counsel also accessed the Governmental Immunity Act Database maintained by the Utah Department of Commerce¹¹ to determine if McTee had a claim against a governmental entity. McTee's counsel's search for “weber” produced sixteen results—none of which listed the Weber Center or any of the entities identified in the condominium documents, including Weber MBA, as a governmental entity.¹² His search for “weber center” produced zero results.

¶ 9 On March 13, 2014, following the GRAMA request and the search of the Immunity Act's database, McTee served the attorney for Woodbury Corporation and Land of OG with a summons and complaint and verified to the court that she had “complied with the requirements of [the Immunity Act].” Approximately three weeks later, McTee sent her initial discovery request, which included an interrogatory seeking “the names of any and all persons or entities who are responsible for maintaining and/or inspecting the parking structure at the Weber Center.” O. Randall Woodbury (the president of the Woodbury Corporation and manager of Land of OG) signed the response to McTee's interrogatory requests and identified the responsible party “for maintaining and/or inspecting the parking structure at the Weber Center” as “Weber County.” McTee asserts that it was “[a]t this point in time” that she “decided to move forward ... against Weber County and the entities that are apparently associated with it in maintaining the parking structure.”

¶ 10 McTee served her summons on the Weber Center Condominium Association, Weber MBA, and Weber County on June 18, 2014. Approximately three weeks later, Weber County filed a motion to dismiss McTee's suit under rules 7(c)

and 12(b)(1) of the Utah Rules of Civil Procedure, arguing that McTee had “failed to comply with the mandatory requirements of [the Immunity Act] ... by failing to file an undertaking and filing an untimely notice of claim.” See Utah Code Ann. §§ 63G–7–402, –601 (LexisNexis 2014). After briefing by both parties, the district court heard oral argument on December 17, 2014. The district court subsequently granted in part and denied in part Weber County's motion to dismiss.¹³ In making its ruling, the court stated,

As I have reviewed the pleadings and considered the arguments, my best view of this case is that the notice of claim was

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