Olsen v. City, 20090831.

Citation676 Utah Adv. Rep. 7,248 P.3d 465,2011 UT 10
Decision Date18 February 2011
Docket NumberNo. 20090831.,20090831.
PartiesBrian Brent OLSEN, Plaintiff and Appellee,v.EAGLE MOUNTAIN CITY, Defendant and Appellant.
CourtSupreme Court of Utah


M. David Eckersley, Salt Lake City, for plaintiff.Gerald H. Kinghorn, Catherine L. Brabson, Salt Lake City, for defendant.Justice LEE, opinion of the Court:

¶ 1 In this interlocutory appeal, Defendant Eagle Mountain City asks us to reverse the district court's denial of its motion to dismiss an action filed by the City's former mayor, Brian Brent Olsen. The City's motion challenged Olsen's eligibility for reimbursement of attorney fees incurred in defending a criminal action arising out of Olsen's duties as mayor, asserting that the applicable statute conditions eligibility for reimbursement on timely submission of a request that the government employer defend the employee in the underlying suit (a request that Olsen concededly failed to submit). We find no such requirement in the statute and accordingly affirm.


¶ 2 Brian Brent Olsen was elected mayor of Eagle Mountain in the November 2005 election. On October 23, 2006, the Utah County Attorney charged Olsen with seven counts of misusing public funds while serving as mayor in violation of Utah Code section 76–8–402. Olsen resigned as mayor just prior to the announcement of the charges. On September 25, 2008, after a four-day trial, a jury found Olsen not guilty on all seven counts.

¶ 3 Olsen employed private counsel in his successful defense. Thirty-four days after acquittal, on October 29, 2008, Olsen submitted to Eagle Mountain a request for reimbursement of $119,834.90 in attorney fees and costs. Eagle Mountain did not respond, and on February 4, 2009, Olsen filed a complaint in the Fourth District Court seeking reimbursement.

¶ 4 Eagle Mountain moved to dismiss Olsen's complaint, arguing that Olsen failed to submit a timely request that Eagle Mountain defend him at trial as required, according to Eagle Mountain, by Utah Code section 63G–7–902. The district court denied the motion.

¶ 5 Eagle Mountain filed an interlocutory appeal in this court, which we granted on December 8, 2009. We review the district court's denial of [Eagle Mountain's] motion to dismiss for correctness, granting no deference to the district court's ruling.” Pendleton v. Utah State Bar, 2000 UT 96, ¶ 5, 16 P.3d 1230.


¶ 6 The statutory scheme at issue here involves three separate provisions: (1) Utah Code section 52–6–201(1) (2010) (the “Reimbursement Statute); (2) Utah Code section 52–6–202(1) (2010) (Section 202); and (3) Utah Code section 63G–7–902 (2008) (Section 902). The Reimbursement Statute provides for reimbursement of fees and costs as follows:

If a state grand jury indicts, or if an information is filed against, an officer or employee, in connection with or arising out of any act or omission of that officer or employee during the performance of the officer or employee's duties, within the scope of the officer or employee's employment, or under color of the officer or employee's authority, and that indictment or information is quashed or dismissed or results in a judgment of acquittal ... that officer or employee shall be entitled to recover reasonable attorney fees and court costs necessarily incurred in the defense of that indictment or information from the public entity....

Utah Code Ann. § 52–6–201(1). Section 202, in turn, links the Reimbursement Statute with Section 902, providing that [a] request for reimbursement of attorney fees and court costs shall be filed in the manner provided in Sections 63G–7–902 and 63G–7–903.” 1Id. § 52–6–202(1) (emphasis added).

¶ 7 Finally, Section 902 sets forth standards and procedures for a governmental entity's defense of an action against its employee:

(1) Except as provided in Subsections (2) and (3), a governmental entity shall defend any action brought against its employee arising from an act or omission occurring:

(a) during the performance of the employee's duties;

(b) within the scope of the employee's employment; or

(c) under color of authority.


(a) Before a governmental entity may defend its employee against a claim, the employee shall make a written request to the governmental entity to defend the employee:

(i) within ten days after service of process upon the employee; or

(ii) within a longer period that would not prejudice the governmental entity in maintaining a defense on the employee's behalf; or

(iii) within a period that would not conflict with notice requirements imposed on the entity in connection with insurance carried by the entity relating to the risk involved.

(b) If the employee fails to make a request, or fails to reasonably cooperate in the defense, including the making of an offer of judgment under Rule 68, Utah Rules of Civil Procedure, Offers of Judgment, the governmental entity need not defend or continue to defend the employee, nor pay any judgment, compromise, or settlement against the employee in respect to the claim.

Id. § 63G–7–902.

¶ 8 The question in this case concerns the “manner” prescribed in Section 202 for reimbursement of attorney fees and costs under the Reimbursement Statute. Eagle Mountain insists that Olsen was ineligible for reimbursement because he failed to submit a timely request that the City defend him under the terms of Section 902. We disagree. The City's construction is incompatible with the language and structure of the statutory reimbursement scheme. Despite Eagle Mountain's argument to the contrary, we also find no basis in the statute for ascribing to the legislature an intent to involve governmental entities in the selection of criminal defense counsel by their employees or in controlling defense costs during the course of the underlying criminal proceeding.


¶ 9 We have repeatedly affirmed our commitment to interpreting statutes according to the “plain” meaning of their text. See, e.g., Blackner v. State Dep't of Transp., 2002 UT 44, ¶ 12, 48 P.3d 949. This principle is simple to articulate in the abstract, but often difficult to apply in contested cases where both sides offer conceivable constructions of the language in question.2 In such cases, the statutory text may not be “plain” when read in isolation, but may become so in light of its linguistic, structural, and statutory context. See Kimball Condos. Owners Ass'n v. Cnty. Bd. of Equalization, 943 P.2d 642, 648 (Utah 1997). Thus, when the words of a statute consist of “common, daily, nontechnical speech,” they are construed in accordance with the ordinary meaning such words would have to a reasonable person familiar with the usage and context of the language in question. O'Dea v. Olea, 2009 UT 46, ¶ 32, 217 P.3d 704 (internal quotation marks omitted).3

¶ 10 Eagle Mountain and Olsen both defend their positions as compelled by the plain meaning of the text of the statutory scheme. For its part, Eagle Mountain contends that a request for reimbursement “in the manner provided” in Section 902 must conform to the timing requirements of Section 902. Since Section 902 requires a “written request ... within ten days after service of process upon the employee,” and because Olsen failed to submit his request within that time frame, Eagle Mountain insists that Olsen forfeited his right to reimbursement by failing to assert a timely claim.

¶ 11 Olsen interprets the “manner” incorporated into the Reimbursement Statute through Section 202 more narrowly. The manner required for reimbursement requests, in Olsen's view, is limited to the form (but not the timing) set forth in Section 902. Since the form prescribed by Section 902 is simply a “written request to the governmental entity,” and because there is no dispute that Olsen submitted a written request to Eagle Mountain, Olsen argues that his request was proper and that the district court was right to deny the City's motion to dismiss.

¶ 12 If we read the term “manner” in isolation, both parties' constructions might be defensible. Common dictionary definitions of the term “manner” 4 arguably could encompass just the form of an employee's written request, as suggested by Olsen, in that the mode or method of requesting reimbursement is by submission of a written request. On the other hand, the mode or method of submitting such a request could be construed, in accordance with the City's position, to encompass the timing requirements set forth in the statute. But we do not interpret the “plain meaning” of a statutory term in isolation. Our task, instead, is to determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme).5

¶ 13 The fact that the statutory language may be susceptible of multiple meanings does not render it ambiguous; “all but one of the meanings is ordinarily eliminated by context.” Deal v. United States, 508 U.S. 129, 131–32, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). In this case, we conclude that Eagle Mountain's construction is eliminated by the context of the Reimbursement Statute. We instead adopt Olsen's interpretation as the way that the language in question would be understood by a reasonable person familiar with the usage and context of the statute.

¶ 14 First, the timing provision of Section 902 expressly contemplates an underlying civil action and thus suggests its inapplicability to a criminal reimbursement proceeding. The requirement to submit a request “within ten days” is triggered by “service of process upon the employee,” a procedural mechanism that is required in civil proceedings, see Utah R. Civ. P. 4, but is unknown to the criminal law. Olsen never received “service of process” in connection with the criminal action against him, and thus by its literal terms Section 902's timing requirement arguably was never implicated as to Olsen. It is true, as the City notes, that Olsen did receive notice of the criminal information. The statute does not...

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