Opinion
Case No. 20050313-CA.
Filed August 10, 2006. (Not For Official Publication).
Appeal from the Second District, Ogden Department, 970907313 The Honorable W. Brent West.
Tyler J. Jensen, L. Miles LeBaron, and Douglas M. Durbano, Layton, for Appellant.
Paul M. Belnap, Andrew D. Wright, A. Joseph Sano, Richard A. Rappaport, and Edward T. Vasquez, Salt Lake City, for Appellees.
Before Judges Greenwood, Billings, and Thorne.
MEMORANDUM DECISION
Plaintiff Big Sky Finance Company (Big Sky) appeals the district court's ruling granting summary judgment for Lawyers Title Insurance Corporation (Lawyers Title) and Fireman's Fund Insurance Company (Fireman's Fund) and denying Big Sky's Motion to Amend. We affirm.
In 2002, Big Sky joined Lawyers Title and Fireman's Fund, the insurance companies of the original defendant Avis and Archibald Title Insurance (Avis), in its ongoing litigation alleging that the insurance companies fraudulently attempted to conceal a professional liability insurance policy from Big Sky. In 2003, Lawyers Title filed a Motion for Summary Judgment asking the district court to dismiss Big Sky's sole claim against Lawyers Title for fraudulent nondisclosure. Big Sky's reply contained several motions, including a Motion for Leave to Amend the Amended Complaint to include a claim for liability under Utah Code section 31A-23a-407. After a hearing, the district court granted Lawyers Title's Motion for Summary Judgment and denied Big Sky's Motion to Amend.
The parties make reference to Utah Code section 31A-23-308, which was renumbered as 31A-23a-407 in a 2003 amendment, effective May 5, 2003. See Utah Code Ann. § 31A-23a-407 (2005). Because the amendment was in effect when Big Sky raised the allegations, we cite to the renumbered section.
In 2004, Fireman's Fund filed a Motion for Summary Judgment, Big Sky did not respond, and the district court granted the motion. Big Sky chose not to oppose Fireman's Fund's motion, and fails to argue plain error or exceptional circumstances on appeal. We are precluded from reviewing the issues pertaining to Fireman's Fund's Motion for Summary Judgment without a demonstration by Big Sky of plain error or exceptional circumstances. See State v. Winfield, 2006 UT 4, ¶ 23, 128 P.3d 1171 ("[U]nder ordinary circumstances, we will not consider an issue brought for the first time on appeal unless the trial court committed plain error or exceptional circumstances exist." (quotations and citation omitted)). Therefore, we will not address issues concerning Fireman's Fund's Motion for Summary Judgment.
First, Big Sky contends that the district court erred in its determination that the 2002 Amended Complaint did not sufficiently plead claims against Lawyers Title for a statutory cause of action or liability under an agency theory. This determination resulted in the district court granting Lawyers Title's Motion for Summary Judgment. "We review a summary judgment determination for correctness, granting no deference to the [district] court's legal conclusions." Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 15, 116 P.3d 271 (alteration in original) (quotation and citation omitted).
Big Sky asserts that the general allegations of the 2002 Amended Complaint put Lawyers Title on notice of its vicarious liability claims, especially given the liberal pleading requirements of rule 8(a). See Utah R. Civ. P. 8(a). However, the 2002 Amended Complaint makes no mention or reference to any statutory or agency theory claims, and does not articulate a single fact that would support such liability. Indeed, it does not even assert that Avis was Lawyers Title's agent for escrow purposes. Thus, Lawyers Title did not have notice of either the statutory or agency theory claims, and the district court did not err in concluding that the 2002 Amended Complaint asserted only a fraudulent nondisclosure claim against Lawyers Title.
"The plaintiff must only give the defendant `fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.'" Canfield v. Layton City, 2005 UT 60, ¶ 14, 122 P.3d 622 (quoting Williams v. State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982)).
Second, Big Sky argues that the district court erred in finding that Big Sky's statutory claims were barred by the statute of limitations. "A trial court's determination that a statute of limitations has expired is . . . a question of law which we review for correctness, giving no particular deference to the lower court's determination." Hansen v. Department of Fin. Insts., 858 P.2d 184, 186 (Utah Ct.App. 1993); see also Gramlich v. Munsey, 838 P.2d 1131, 1132 (Utah 1992).
An action for a liability created by statute may be brought within three years. See Utah Code Ann. § 78-12-26(4) (2002).
Big Sky asserts that the statute of limitations began to run on December 30, 2002, when damages became certain, and as such their statutory claim was not time barred when raised in July 2003. The district court found that Big Sky's statutory liability claim existed at the inception of the litigation in 1997 and was time barred. We agree with the district court. Lawyers Title's statutory liability, if any, existed at the time the cause of action accrued in 1997. The statute of limitations began to run in 1997 and pursuant to Utah Code section 78-12-26(4) the statutory liability claim was time barred in 2000 regardless of any intervening events that may have complicated the issue of damages. See Utah Code Ann. § 78-12-26(4); see also State v. Huntington-Cleveland Irrigation Co., 2002 UT 75, ¶ 24, 52 P.3d 1257 ("The statute of limitations set forth in section 78-12-26(4) begins to run only after the cause of action based on Utah statute has accrued."). Therefore, Big Sky was time barred from alleging a statutory liability claim against Lawyers Title both in its 2002 Amended Complaint and when it raised the claim in July 2003.
On December 15, 1999, the district court granted Big Sky's Motion for Summary Judgment against Avis. The district court found that because Avis released funds to a third-party in contradiction of the escrow instructions, the money released became subject to a bankruptcy estate. Therefore, the district court found damages to be speculative and reserved the issue of damages pending the outcome of the bankruptcy case.
Third, Big Sky alleges that the district court erred in refusing to grant leave to amend the complaint because it failed to make specific findings regarding timeliness of the motion or prejudice to Lawyers Title. See Utah R. Civ. P. 15(a). "``We will not disturb a trial court's ruling on a motion to amend a complaint absent a clear abuse of discretion. Under that standard, we will not reverse unless the decision exceeds the limits of reasonability.'" Coroles v. Savey, 2003 UT App 339, ¶ 16, 79 P.3d 974 (quoting Neztsosie v. Meyer, 883 P.2d 920, 922 (Utah 1994) (other quotations omitted)).
Big Sky argues that the district court erred in deciding the case based on a rule 15(a) analysis, discussing the untimely and prejudicial effect of the second Motion to Amend, and should have applied the doctrine of relation-back pursuant to rule 15(c). See Utah R. Civ. P. 15(a), (c). Because we find that both arguments fail, we do not make a determination as to whether the district court applied the appropriate analysis.
Specifically, Big Sky maintains that the district court made only conclusory statements that the second Amended Complaint was untimely and prejudicial. We do not agree. Contrary to Big Sky's assertions, the district court found that the second Amended Complaint was not timely because Big Sky had a potential statutory claim against Lawyers Title from the onset of the case and elected to assert it nearly seven years after filing its first Complaint. See Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 30, 87 P.3d 734 (noting that "motions to amend have typically been deemed untimely when they were filed several years into the litigation"). Additionally, the district court found that Lawyers Title would be prejudiced by the filing of a second Amended Complaint because the statutory claims Big Sky wanted to assert were barred by the statute of limitations, and Lawyers Title would likely have difficulty locating witnesses and documents needed to prepare a defense for actions occurring seven years prior. Because we find these findings to be sufficient, Big Sky's argument fails.
We do not address Big Sky's justification for the delay in filing the motion because it does not argue that the district court failed to make findings related to this issue.
Finally, Big Sky asserts that the district court ignored its relation-back argument that rule 15(c) allows them to amend the complaint to include otherwise time-barred claims. See Utah R. Civ. P. 15(c). The record reflects that the parties made only cursory arguments regarding the relation-back doctrine at the motion hearing. Nonetheless, we find that the relation-back doctrine does not apply because no identity of interest among the parties exists. Lawyers Title was not Avis's errors and omissions insurance carrier. Therefore, Lawyers Title was not indemnifying Avis, and the legal position and defenses of the two parties would be different. See Penrose v. Ross, 2003 UT App 157, ¶¶ 19-21, 71 P.3d 631 (holding that no identity of interest existed because a disposition against one party would not affect a determination as to the other because the parties did not have the same defenses or legal interest in the outcome of the case, and possible knowledge of the complaint was insufficient to create identity of interest). Without any identity of interest among the parties, the relation-back doctrine is unavailable.See id. at ¶ 9.
Big Sky also contends that the district court erred in relying on Holmes Development, L.L.C. v. Cook, 2002 UT 38, 48 P.3d 895, in denying its Motion to Amend. The district court did not deny Big Sky's Motion to Amend based on any improper filing of the motion, see id. at ¶¶ 56-59, but rather denied the motion because it found that Lawyers Title would be unduly prejudiced by allowing Big Sky to file an Amended Complaint. Because the district court did not rely on Holmes in its denial of the Motion to Amend, we do not further address this argument.
In sum, Big Sky failed to assert or even reference any statutory liability or agency theory claims in its 2002 Amended Complaint. Thus, the district court did not err in its determination that Big Sky did not sufficiently plead said claims against Lawyers Title. Moreover, Big Sky's statutory liability claim existed at the inception of litigation in 1997, was time barred in 2000, and therefore could not have been raised in the 2002 Amended Complaint. In addition, we find that the district court made specific findings regarding the timeliness of Big Sky's Motion to Amend and prejudice to Lawyers Title, and appropriately denied Big Sky's Motion to Amend. Finally, we conclude that the relation-back doctrine does not apply because no identity of interest among the parties exists. Accordingly, we affirm the district court's ruling.
Pamela T. Greenwood, Associate Presiding Judge, Judith M. Billings, Judge, concur.