Stichting Mayflower Mountain Fonds v. JORDANELLE SPECIAL SERVICE DIST.

Decision Date07 September 2001
Docket NumberNo. 990910-CA.,990910-CA.
Citation47 P.3d 86,2001 UT App 257
PartiesSTICHTING MAYFLOWER MOUNTAIN FONDS; Stichting Mayflower Recreational Fonds; and Jordan Investors, Inc., Plaintiffs and Appellants, v. JORDANELLE SPECIAL SERVICE DISTRICT, a special service district of Wasatch County, State of Utah, Defendant and Appellee.
CourtUtah Court of Appeals

E. Craig Smay, Salt Lake City, for Appellants.

Mark R. Gaylord and Craig H. Howe, Ballard, Spahr, Andrews & Ingersoll, Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and THORNE.

OPINION

BENCH, Judge:

¶ 1 Plaintiffs (collectively "Investors") appeal the trial court's order dismissing their action because a proper summons had not been served within the thirty-day time period allowed by Utah Code Ann. § 17A-3-229 (1999). We affirm.

BACKGROUND

¶ 2 Investors are property owners within the boundaries of Defendant Jordanelle Special Improvement District (Jordanelle). In 1999, Jordanelle passed an ordinance levying an assessment against certain properties within its district, including property owned by Investors, to pay for sewage system improvements. The effective date of the ordinance was February 3, 1999. On February 25, 1999, Investors filed a complaint in district court challenging the assessment. On the same day, Investors served a summons (first summons) and copy of the complaint on Jordanelle.

¶ 3 After being served with the first summons, Jordanelle filed a Motion to Quash Summons and Dismiss Action. Jordanelle argued that the first summons should be quashed because it failed "to state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service." Utah R. Civ. P. 4(c)(1). Jordanelle also argued that if the court quashed the first summons, it should also dismiss the action because Investors' failure to serve a valid summons within thirty days of the ordinance's effective date rendered the matter incontestable under section 17A-3-229.

¶ 4 Investors responded by arguing that the first summons should not be quashed because it complied with Form 2 of the Utah Rules of Civil Procedure and because inclusion of the assigned case number on the face of the summons put Jordanelle on notice that an action had been commenced. Investors also argued that the action should not be dismissed because section 17A-3-229 "simply establishes a limitation period for commencement of the action," and does not "alter" the Utah Rules of Civil Procedure with respect to the time limits for serving a summons.

¶ 5 In addition to defending the validity of the first summons, Investors served Jordanelle with another summons (second summons) on March 30, 1999. In its reply memorandum on its motion, Jordanelle asked the court to quash the second summons because Jordanelle's copy of the summons was not signed. At oral argument, Investors argued that the second summons was proper because the copy of the summons attached to the sheriff's return of service was signed. After hearing argument on the validity of the first and second summonses, Judge Ray Harding, Sr. quashed both1 and directed Investors to re-serve Jordanelle in accordance with the Utah Rules of Civil Procedure.

¶ 6 Immediately following the hearing, Investors served Jordanelle with a third summons on April 28, 1999. While disputing the validity of the third summons, Jordanelle responded by renewing its Motion to Dismiss Action With Prejudice on the ground that section 17A-3-229 divested the court of authority to hear the case because a proper summons had not been served within thirty days of the ordinance's effective date. Prior to a hearing on the motion, Investors served a fourth summons on May 26, 1999, which Jordanelle concedes was sufficient but not timely. The Motion to Dismiss was thereafter argued to Judge Lynn Davis, who dismissed the case pursuant to the provisions of section 17A-3-229. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 7 We must consider whether Judge Davis properly dismissed Investors' complaint under Rule 12(b)(6) of the Utah Rules of Civil Procedure. This presents a question of law that we review for correctness. See Larson v. Park City Mun. Corp., 955 P.2d 343, 345 (Utah 1998). In reviewing Judge Davis's dismissal of the action, we must review his interpretation of section 17A-3-229. Issues of statutory interpretation are questions of law that we review for correctness. See State v. Fixel, 945 P.2d 149, 151 (Utah Ct.App.1997). Furthermore, review of the dismissal also requires us to review Judge Harding's decision to quash the first summons.2 Whether service of process is proper presents a question of law that we review for correctness. See Bonneville Billing v. Whatley, 949 P.2d 768, 771 (Utah Ct.App.1997).

ANALYSIS

¶ 8 This case is governed by section 17A-3-229, which requires that an action challenging an assessment or proceeding in a special improvement district "must be commenced and summons must be served . . . not later than 30 days after the effective date of the ordinance." Id. § 17A-3-229(2) (emphasis added). In accordance with established rules of statutory construction, we rely only on the plain language of section 17A-3-229 unless the statutory language is ambiguous. See O'Keefe v. Utah State Ret. Bd., 956 P.2d 279, 281 (Utah 1998). We find the statutory language to be unambiguous, and neither party argues otherwise. Investors concede in their brief on appeal that the "proper construction of the statute appears to be that it requires filing of the complaint and service of a summons together within thirty (30) days after the ordinance." We agree. The plain language of the statute requires both an action be commenced and a summons be served within thirty days of the ordinance's effective date. The effective date of the ordinance challenged here is February 3, 1999. Investors commenced an action within thirty days by filing a complaint with the district court on February 25, 1999. Investors also served the first summons the same day. Although timely served, we must decide whether the first summons was valid.

¶ 9 Utah currently allows two alternatives for commencing an action. First, a party may commence an action by filing a complaint with the court. See Utah R. Civ. P. 3(a)(1). Alternatively, a party may commence an action by serving a summons together with a copy of an unfiled complaint, which complaint must be filed within ten days after service of the summons. See Utah R. Civ. P. 3(a)(2), 4(c)(2). To notify the party being served "the precise manner in which the action is commenced[,]" Wasatch Livestock Loan Co. v. District Court, 86 Utah 422, 423, 46 P.2d 399, 399 (1935), Rule 4 of the Utah Rules of Civil Procedure requires that a summons "shall state either that the complaint is on file with the court or that the complaint will be filed with the court within ten days of service." Utah R. Civ. P. 4(c)(1) (emphasis added).

¶ 10 Despite the unqualified requirements of Rule 4(c)(1), Investors argue that section 17A-3-229 effectively eliminates the option of commencing an action by service of a summons and a copy of the unfiled complaint, thereby making it unnecessary to indicate on the summons how the action was commenced. Jordanelle contends this issue was not preserved, but our review of the record indicates that Investors did preserve the issue by raising it before the trial court. See Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983) ("For a question to be considered on appeal, the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon....").

¶ 11 Although preserved, Investors' argument fails for two reasons. First, application of section 17A-3-229 does not eliminate the option of commencing an action by service of a summons. A party challenging an ordinance like this one has ample time to serve a summons and file a complaint ten days later, and still be within the thirty-day time period allowed by the statute. Because the plain language of section 17A-3-229 does not eliminate either Rule 3 alternative for commencing an action, a plaintiff must provide the party being served with notice of how the action was commenced.

¶ 12 Second, regardless of the practical necessity for indicating how the action was commenced, the plain language of section 17A-3-229 does not provide for a special summons that alters the Rule 4 requirements. A brief survey of the Utah Code shows that the legislature knows how to change the Rule 4 requirements for a summons if it so desires. See, e.g., Utah Code Ann. § 10-7-70 (Supp.2000) (establishing summons for alleged corporate violation of city ordinance); Utah Code Ann. § 73-4-4 (1989) (establishing summons for water rights action). Without an explicit change by the legislature, the plain language of section 17A-3-229 must be interpreted as requiring a regular summons that complies with Rule 4. See Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994) ("A cardinal rule of statutory construction is that courts are not to infer substantive terms into the text that are not already there.").

¶ 13 Investors' first summons indisputably did not contain the required statement indicating that the complaint had been filed with the court. See Utah R. Civ. P. 4(c)(1). Instead of following the requirements of Rule 4, Investors apparently followed Form 2. See Utah R. Civ. P.App. of Forms. Form 2, however, does not contain the required statement indicating either that a complaint is on file or will be filed. See Utah R. Civ. P. 4(c)(1). Thus, Investors were not justified in relying upon Form 2, which is "intended for illustration only." Utah R. Civ. P.App. of Forms (Introductory Statement).

¶ 14 The omission of the mandatory statement required by Rule 4 rendered the first summons "fatally defective." Wasatch Livestock Loan Co., 46 P.2d at 399 (interpre...

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