Nebeker v. Summit Cnty.

• Decision Date: 17 October 2014
• Docket Number: No. 20120269–CA.,20120269–CA.
• Citation: 2014 UT App 244,338 P.3d 203
• Court: Utah Court of Appeals
• Parties: Jim NEBEKER, Plaintiff, Appellee, and Cross-appellant, v. SUMMIT COUNTY, Defendant, Appellant, and Cross-appellee.

338 P.3d 203

2014 UT App 244

Jim NEBEKER, Plaintiff, Appellee, and Cross-appellant

v.SUMMIT COUNTY, Defendant, Appellant, and Cross-appellee.

No. 20120269–CA.

Court of Appeals of Utah.

Oct. 17, 2014.

Michael Z. Hayes and Todd J. Godfrey, Salt Lake City, for Appellant and Cross-appellee.

Richard M. Hymas, David L. Arrington, Salt Lake City, and Josh D. Chandler, for Appellee and Cross-appellant.

JUDGE STEPHEN L. ROTH authored this Amended Opinion, in which JUDGES J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

Amended Opinion¹

ROTH, Judge:

¶ 1 Summit County (the County) appeals the entry of judgment in favor of Jim Nebeker on Nebeker's negligence claim. Nebeker cross-appeals, contending that the court improperly imposed a statutory cap to reduce the judgment from $594,400.21 to $221,400. We affirm.

BACKGROUND

¶ 2 John Rhineer was Nebeker's accountant prior to Rhineer's death on November 14, 2003. Later that year, Wells Fargo Bank sued John Rhineer's estate and Nebeker's business, Jim Nebeker Trucking, Inc., seeking, among other things, “a determination of non-liability for allowing John Rhineer to deposit Nebeker's monthly tax deposits in John Rhineer's personal Wells Fargo account instead of Nebeker's IRS trust account.” On March 26, 2004, Jim Nebeker intervened and filed a cross-claim against the Rhineer estate asserting that John Rhineer had embezzled funds from both Nebeker and his business. Nebeker brought the claim against David Rhineer, John Rhineer's son, who purported to be the personal representative of the estate but, as it turned out, had never been appointed. Later, in June 2004, the probate court appointed Greg Rhineer, another of John Rhineer's sons, as personal representative. Wells Fargo immediately filed an amended complaint substituting personal representative Greg Rhineer as the defendant, but Nebeker did not move to substitute Greg Rhineer for David Rhineer as the estate's personal representative until June 10, 2005, nineteen months after John Rhineer's death.

¶ 3 On March 26, 2004, the date that Nebeker originally intervened in the case, he also obtained a prejudgment writ of attachment (the Writ) against the Rhineer estate. The Writ directed the County Sheriff to “attach and safely keep all the property” held by the Rhineer estate, including Unit 25–C of the Stonebridge Condominiums (the Condominium Unit). Nebeker delivered the Writ, along with the legal description of the Condominium Unit, to the Summit County Sheriff for levy. The sheriff posted the required notices and promptly submitted the Writ to the County Recorder for recording, but the sheriff failed to include the legal description of the Condominium Unit as required by rule 64C of the Utah Rules of Civil Procedure. Utah R. Civ. P. 64C(e)(1) (explaining that “[t]he officer to whom the writ is directed must execute the same without delay, and ... [attach any r]eal property, standing upon the records of the county in the name of the defendant, ... by filing with the recorder of the county a copy of the writ, together with a description of the property attached, and a notice that it is attached”).³ The recorder discovered the omission shortly thereafter and notified the sheriff, but the sheriff did not correct the error until nearly a year later, in March 2005. In the meantime, on August 20, 2004, the Condominium Unit was sold to a bona fide third-party purchaser, who bought the property without notice of the Writ due to the sheriff's failure to include the legal description.

¶ 4 On March 8, 2005, Nebeker filed a notice of claim under the Governmental Immunity Act of Utah, alleging negligence by the County Sheriff and the County Recorder in failing to properly record the Writ. See Utah Code Ann. § 63G–7–401(2) (LexisNexis 2011) (requiring “[a]ny person having a claim against a governmental entity, or against its employee for an act or omission occurring during the performance of the employee's duties, ... [to] file a written notice of claim with the entity before maintaining an action”).⁴ After the County rejected Nebeker's claim, he filed suit against the County in the Third Judicial District Court on March 30, 2006. The parties later stipulated to a dismissal of the case without prejudice, agreeing that “due to the doctrine of ripeness, the statute of limitations regarding Nebeker's claims against the Sheriff and Recorder had not yet begun to run.”

¶ 5 On November 5, 2007, Nebeker obtained a default judgment against the Rhineer estate in the amount of $11.9 million (the Rhineer estate judgment). A little over a month later, on December 12, 2007, Nebeker refiled his negligence lawsuit against the County Sheriff and the County Recorder. On March 26, 2008, the district court dismissed the case for lack of jurisdiction after the court determined that the County, not the sheriff or recorder, was the proper defendant and that Nebeker's 2005 notice of claim had not fulfilled the requirement to give notice to the County itself.

¶ 6 Nebeker filed a second notice of claim on September 11, 2008, this time naming the County as the negligent party, through the actions of its sheriff and recorder. The County did not respond, and on May 21, 2009, Nebeker filed a new complaint in the district court alleging that the County had negligently recorded the Writ without the Condominium Unit's legal description. The parties filed cross-motions for summary judgment. The district court granted the County's motion with respect to the recorder⁵ but denied its motion as to the sheriff. Instead, the court granted Nebeker's cross-motion on the issue of liability, holding that the County was responsible to Nebeker for the sheriff's failure to properly record the Writ. It reserved damages for later resolution.

¶ 7 The County then filed a motion to dismiss the case for lack of subject matter jurisdiction, asserting that both the Writ and the Rhineer estate judgment on which Nebeker's claim was based were void. In particular, the County claimed that the district court did not have jurisdiction to enter the Writ because a personal representative of the estate had not yet been appointed at the time the Writ was granted and that even if the court had jurisdiction, a writ of attachment could not be issued against the property of an estate. See id. § 75–3–104 (Michie 1993) (“No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative.”); id. § 75–3–812 (“No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent....”). It further asserted that Nebeker's embezzlement claim was barred due to his failure to bring the claim against the estate's personal representative within one year of John Rhineer's death as required by the probate code. See id. § 75–3803(1)(a) (LexisNexis Supp.2013) (“All claims against a decedent's estate which arose before the death ... are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within ... one year after the decedent's death.”). The district court decided, however, that the validity of the Rhineer estate proceedings, including the issuance of the Writ and the entry of judgment, were not subject to collateral attack in this separate proceeding. The court further decided that even if such an attack were permissible, the court could still resolve the case because a district court has subject matter jurisdiction over probate matters generally. It therefore denied the motion to dismiss.

¶ 8 Following a bench trial on damages, the district court entered judgment for Nebeker in the amount of $594,400.21 ($335,000 for the loss of the value of the Condominium Unit plus prejudgment interest and costs). The court then applied the statutory cap on property damage awards against governmental entities to reduce the judgment to $221,400. See id. § 63–30d–604(1)(c) (LexisNexis Supp.2004) (current version at 63G–7–604(1)(c) (LexisNexis 2011)); Utah Admin. Code R37–4–2, –3(4) ; see also Utah Code Ann. § 63G–7–102 (LexisNexis 2011). Both parties now appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 9 The County asserts that Nebeker's negligence claim is jurisdictionally barred under two theories: first, it asserts that the claim is barred because Nebeker failed to file a timely notice of claim under the Governmental Immunity Act of Utah; second, it contends that the Utah Uniform Probate Code bars recovery from the County because Nebeker failed to timely file his underlying claim against the estate. Both theories raise questions regarding the district court's subject matter jurisdiction, which is an issue of law. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 10, 266 P.3d 702. The County's claim about Nebeker's compliance with the probate code, however, attempts to challenge the validity of the Rhineer estate judgment by raising an issue about the timeliness of Nebeker's embezzlement claim that was not raised in the case in which that judgment was entered. A judgment may only be attacked in a collateral proceeding if the judgment is void as opposed to merely voidable. Farley v. Farley, 19 Utah 2d 301, 431 P.2d 133, 137 (1967) (“If a judgment be void, it is open to collateral attack.”); Bangerter v. Petty, 2010 UT App 49, ¶ 8, 228 P.3d 1250 (“Errors other than lack of jurisdiction render the judgment merely voidable, and a voidable judgment can only be challenged on direct appeal.” (citation and internal quotation marks omitted)). Whether a judgment is void or voidable is a question of law. See Bangerter, 2010 UT App 49, ¶ 10, 228 P.3d 1250.

¶ 10 The County also challenges the district court's conclusions and findings on each element of negligence. First, it argues that the court erred in determining that the sheriff had a duty to Nebeker. Whether a duty exists is an issue of law, and we will review the district court's conclusion that a...