Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 910471

• Decision Date: 13 December 1994
• Docket Number: No. 910471,910471
• Citation: 887 P.2d 848
• Parties: ROCKY MOUNTAIN THRIFT STORES INC., dba Hope of America Thrift Store; Sine Investment, Inc., dba Scotty's Travel Motor Hotels; Site, Inc., dba Ten Pin Lounge; Rancho Lanes, Inc., dba Rancho 42 Lanes Recreational Center; Jerry Sine Investments, a partnership dba Se Rancho Motor Hotel; and Stockholm Restaurant, Inc., Plaintiffs and Appellants, v. SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah; Salt Lake City Mayor Ted Wilson; Al Haynes, Assistant City Engineer; State of Utah; Scott Matheson, as Governor of the State of Utah; State Council of Defense; State Road Commission; and Salt Lake County, a body corporate and politic of the State of Utah, Defendants and Appellees.
• Court: Utah Supreme Court

Page 848

887 P.2d 848

ROCKY MOUNTAIN THRIFT STORES INC., dba Hope of America Thrift Store; Sine Investment, Inc., dba Scotty's Travel Motor Hotels; Site, Inc., dba Ten Pin Lounge; Rancho Lanes, Inc., dba Rancho 42 Lanes Recreational Center; Jerry Sine Investments, a partnership dba Se Rancho Motor Hotel and Stockholm Restaurant, Inc., Plaintiffs and Appellants, v. SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah; Salt Lake City Mayor Ted Wilson; Al Haynes Assistant City Engineer; State of Utah; Scott Matheson, as Governor of the State of Utah; State Council of Defense State Road Commission; and Salt Lake County, a body corporate and politic of the State of Utah, Defendants and Appellees.

No. 910471.

Supreme Court of Utah.

Dec. 13, 1994.

Wesley F. Sine, Salt Lake City, for plaintiffs.

Roger F. Cutler, Bruce R. Baird, Steven W. Allred, Salt Lake City, for Salt Lake City defendants.

R. Paul Van Dam, Atty. Gen., Allan L. Larson, Anne Swensen, Salt Lake City, for State of Utah defendants.

David E. Yocom, Kevan F. Smith, Salt Lake City, for Salt Lake County.

STEWART, Associate Chief Justice:

This case is here on appeal for the second time. In Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp., 784 P.2d 459, 464 (Utah 1989) (Rocky Mountain I ), the Court reversed a summary judgment in favor of defendants and remanded for development of a factual record to determine whether the defendants' decisions regarding the management of floodwaters were policy-type decisions for purposes of determining whether governmental immunity barred plaintiffs' action for damages. See Utah Code Ann. § 63-30-10(1)(a). On remand and after additional discovery, defendants' motions for summary judgment were granted. We affirm.

Plaintiffs are proprietors of commercial properties located along North Temple Street in Salt Lake City. North Temple was blocked off for a three-week period in 1983, and traffic to plaintiffs' properties was impeded for several months as a result of flooding from City Creek. Plaintiffs claimed damages for lost revenues caused by the temporary closure of North Temple and for traffic problems existing during the street's cleanup and repair. They sued Salt Lake City, Salt Lake County, and the State of Utah for these damages allegedly caused by negligent management of floodwaters during the 1983 spring runoff that caused the flooding. They also sought compensation for inverse condemnation of their rights of ingress and egress to their properties.

In Rocky Mountain I, the trial court granted summary judgment in favor of defendants on the ground that no unconstitutional taking occurred and that the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38, barred plaintiffs' negligence suit. On appeal, the Court held that the design, capacity, and construction of the drainage system were discretionary functions entitled to governmental immunity and that any injury to plaintiffs caused by the blocking of North Temple did not constitute inverse condemnation. Rocky Mountain I, 784 P.2d at 463, 465. However, because of the inadequacy of the record, the Court did not decide whether defendants' operation of the North Temple conduit was entitled to immunity. Accordingly, the Court remanded for further proceedings.

On remand, the parties engaged in additional discovery, and after plaintiffs certified their readiness for trial, each of the defendants moved for summary judgment. In a memorandum decision dated February 26, 1991, the trial court granted the State's motion for summary judgment. The trial court ruled that the State was not involved in any operational activities associated with flood management and that the State's decision to delegate floodwater management to Salt Lake City and Salt Lake County was a policy decision entitled to immunity under Utah Code Ann. § 63-30-10(1)(a). The trial court also ruled that the State's failure to issue Salt Lake City a permit allowing excavation of North Temple was immune under § 63-30-10(1)(c).

In a later memorandum decision, the trial court granted Salt Lake City's and Salt Lake County's motions for summary judgment. The trial court criticized plaintiffs' failure to comply with Rule 4-501(2)(b) of the Code of Judicial Administration that requires parties in motions for summary judgment to identify with specificity each disputed fact in their memorandum to the court. ¹ The court ruled that Salt Lake City and Salt Lake County were immune from any claim predicated on the City's and County's failure to have a regular program of inspection and maintenance for the North Temple conduit under § 63-30-10(1)(a) (immunity for the exercise or performance of a discretionary function) and § 63-30-10(1)(d) (immunity for negligent inspections or the failure to inspect). The trial court also ruled that there was no evidence supporting plaintiffs' claims that the City and County were negligent in using a 12-inch rather than a 48-inch auger, using fire hoses to clear the conduit, and diverting City Creek waters down State Street. The trial court held that there was no evidence showing a causative link between plaintiffs' damages and the use of a drag-line and blasting to clear the conduit. Finally, the trial court held that plaintiffs had failed to establish that defendants had a duty of reasonable care to these particular plaintiffs, apart from a general duty of care to the public as a whole, see Ferree v. State, 784 P.2d 149 (Utah 1989), particularly where plaintiffs' claim for lost business revenues was based on difficulties of customer ingress and egress.

I. ISSUES NOT BEFORE THE COURT

Plaintiffs contend that summary judgment for Salt Lake City and Salt Lake County was improper because, among other reasons, there are material issues of fact as to (1) when defendants knew or should have known that the 1983 spring runoff would be enough to require action, (2) why the grate covering the culvert opening in City Creek Canyon was removed, and (3) the timeliness of the repair of the block-long trench in North Temple after the flooding. These issues were not raised before the trial court and may not now be raised. See State v. Smith, 866 P.2d 532, 533 (Utah 1993); Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983).

Plaintiffs also attempt to appeal the trial court's grant of summary judgment to the State. The order as to the State was final on April 17, 1991, and specifically stated that there was no just reason for delay and directed entry of judgment in accordance with rule 54(b) of the Utah Rules of Civil Procedure. Once certified under rule 54(b), the judgment was final and appealable. See Bennion v. Pennzoil Co., 826 P.2d 137, 138 (Utah 1992); Pate v. Marathon Steel Co., 692 P.2d 765, 767 (Utah 1984); see also 10 Wright & Miller, Federal Practice and Procedure § 2656 (1983). Plaintiffs were therefore required to appeal that decision within thirty days. Utah R.App.P. 4. Any challenge once certification was granted should have been raised at that time. See Kennecott Corp. v. State Tax Comm'n, 814 P.2d 1099 (Utah 1991). Because plaintiffs failed to timely appeal the summary judgment in favor of the State, that judgment is final.

II. SCOPE OF REMAND

Plaintiffs appeal the entry of summary judgment arguing that the order decided issues that went beyond the scope of remand because no evidentiary hearing was held. In Rocky Mountain I, this Court did not expressly direct the trial court to hold an evidentiary hearing on remand; it merely directed that a factual basis be developed to enable the court to distinguish between discretionary or policy decisions, on the one hand, and operational or ministerial decisions on the other. Rocky Mountain I, 784 P.2d at 464. That distinction pertained to the governmental immunity issue. In directing that the nature of defendants' decisions be clarified factually, the Court did not intend to preclude the trial court from deciding the case on any appropriate ground. Therefore, once discovery was completed and plaintiffs declared their readiness for trial, the trial court could decide as a matter of law that some of the City's and County's decisions were discretionary and immune, as in fact the court did, or operational and not immune. Also, the trial court would still have needed to decide whether plaintiffs' claims were entitled to go to the jury under the legal elements of a claim for negligence, including duty, breach of duty, causation, and damages.

The trial court first ruled that Salt Lake City's and Salt Lake County's failure to have a regular program of inspection and maintenance was a discretionary function and therefore immune from tort liability under the Governmental Immunity Act. The trial court then assumed that the City's and County's other decisions with respect to the management of the flooding were operational and not immune, but ruled as a matter of law that plaintiffs had not raised a material issue of fact with respect to defendants' negligence and therefore were not entitled to go to a jury. In so ruling, the trial court did not violate this Court's remand order.

III. SUMMARY JUDGMENT

On appeal from summary judgment, we determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact. Bushnell Real Estate, Inc. v. Nielson, 672 P.2d 746, 749 (Utah 1983); Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982).

Plaintiffs assert that the trial court erred by entering summary judgment for the City and County because there were material issues of fact concerning the maintenance and inspection of the North Temple culvert. The trial court ruled that the City and County were immune under Utah Code Ann. § 63-30-10. Whether the scope of that statute encompasses the actions of this case is highly doubtful. Nevertheless, plaintiffs assert no material issues of fact with respect to...