Michael D. Wright v. PK Transport, Paradise Turf and Richard Riding

¶1 Michael D. Wright appeals from the district court's grant of

summary judgment in favor of defendants Paradise Turf and

Richard Riding (Appellees). We affirm.

¶2 The underlying cause of action involves a negligence claim

stemming from a car accident that occurred on September 26, 2003.

Wright v. PK Transport

2. "Because we are reviewing a grant of summary judgment, we

view the facts and all reasonable inferences drawn therefrom in the

light most favorable to . . . the nonmoving party.” Magana v. Dave

Roth Constr., 2009 UT 45, ¶ 5, 215 P.3d 143 (citation and internal

quotation marks omitted). Accordingly, we recite the facts in the

light most favorable to Wright.

3. During the course of litigation, Wright settled his claims against

the original defendants and stipulated to an order dismissing the

complaint with respect to the original defendants.

20120239-CA 2 2014 UT App 93

Wright filed a complaint against defendants PK Transport and

William Dunn (the original defendants) on February 5, 2007,

approximately seven months before the controlling four-year

statute of limitations expired.2 See Utah Code Ann. § 78B-12-25(3)

(LexisNexis 2002); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835,

842 (Utah 1996) (explaining that negligence claims are governed by

the catch-all four-year statute of limitations). On March 24, 2009, a

full year and a half after the statute of limitations expired, Wright

filed an amended complaint in which he added Appellees as

additional defendants.3 Appellees moved to dismiss Wright's

complaint, arguing that the statute of limitations barred his claim.

While recognizing that the statute of limitations had expired,

Wright argued that amendment of his complaint was proper under

the relation-back doctrine set forth in rule 15(c) of the Utah Rules

of Civil Procedure. See Utah R. Civ. P. 15(c) ("Whenever the claim

or defense asserted in the amended pleading arose out of the

conduct, transaction, or occurrence set forth or attempted to be set

forth in the original pleading, the amendment relates back to the

date of the original pleading.”). Wright also moved for a

continuance under rule 56(f), stating that no discovery had been

conducted as to Appellees and that additional discovery would

produce evidence of an identity of interest between the original

defendants and Appellees. See id. R. 56(f).

¶3 Because the parties had "provided extensive recitations of

factual assertions made outside the pleadings,” the district court

Wright v. PK Transport

20120239-CA 3 2014 UT App 93

converted Appellees' motion to dismiss to one for summary

judgment. See id. R. 12(b); id. R. 56(c); see also Oakwood Vill. LLC v.

Albertsons, Inc., 2004 UT 101, ¶ 12, 104 P.3d 1226. The district court

determined that Wright's addition of Appellees in the amended

complaint did not relate back to the original complaint and,

therefore, that Wright's claims against Appellees were barred by

the statute of limitations. The court then entered judgment in favor

of Appellees, and Wright appeals.

¶4 On appeal, Wright argues that the district court erred in

granting summary judgment in favor of Appellees. Wright asserts

that the district court "misinterpreted the law” and incorrectly

applied the relation-back doctrine in concluding that Wright's

addition of Appellees did not relate back to the original complaint.

"Summary judgment is appropriate only where there are no

genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.” Basic Research, LLC v. Admiral Ins. Co.,

2013 UT 6, ¶ 5, 297 P.3d 578. "An appellate court reviews a trial

court's legal conclusions and ultimate grant or denial of summary

judgment for correctness, and views the facts and all reasonable

inferences drawn therefrom in the light most favorable to the

nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600

(citations and internal quotation marks omitted).

¶5 "[T]here are limited circumstances when a claim against a

new party may relate back to the original complaint. Utah courts

have allowed the relation back of amendments to complaints

incorporating newly named parties in two types of cases: (1) in so

called misnomer cases, and (2) where there is a true identity of

interest.” Ottens v. McNeil, 2010 UT App 237, ¶ 43, 239 P.3d 308

(citation and internal quotation marks omitted). A misnomer case

occurs when the correct party is served but the complaint contains

some technical defect in the identification of the party. Penrose v.

Ross, 2003 UT App 157, ¶ 12, 71 P.3d 631. No such misnomer is

alleged to exist here. Thus, the principal question before us is

whether Appellees shared an "identity of interest” with the original

Wright v. PK Transport

20120239-CA 4 2014 UT App 93

defendants. To prevail on his relation-back argument based on an

identity of interest, Wright must establish two elements:

(1) the amended pleading alleged only claims that

arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original

pleading and (2) the added party had received

(actual or constructive) notice that it would have

been a proper party to the original pleading such that

no prejudice would result from preventing the new

party from using a statute of limitations defense that

otherwise would have been available.

Id. (citations and internal quotation marks omitted).

¶6 The first element of the identity of interest

analysis—whether Wright's amendment was based on the same

core of facts or occurrence set forth in his original complaint—is not

in dispute. Rather, Wright argues that the district court erred in

evaluating the second element—notice—by solely considering

constructive notice under the Notice Transfer Test and failing to

consider whether Appellees had received actual notice of the

litigation.

I. Notice

¶7 In its written ruling granting summary judgment ruling, the

district court stated, "According to the Utah Court of Appeals, in

a case directly on point, 'relation back in the context of adding

parties after the statute of limitations has expired is dependent . . .

on whether . . . the legal positions of the original and proposed

party are the same.'” (Quoting Ottens v. McNeil, 2010 UT App 237,

¶ 54, 239 P.3d 308) (second omission in original). The court's

statement refers to what has become known as the "Notice Transfer

Test,” see Ottens, 2010 UT App 237, ¶ 45, and is an accurate

statement of the law to the extent that a party seeks to establish

constructive notice under that test. But that is not the only analysis

Wright v. PK Transport

20120239-CA 5 2014 UT App 93

a court must undertake to determine whether relation back is

appropriate. Indeed, in Ottens we explained that the Notice

Transfer Test is only "[o]ne of the ways to establish notice.” Id.; see

also Gary Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 42,

101 P.3d 371 ("[T]he Notice Transfer Test is a test for constructive

notice, and is merely one way of demonstrating that an added

party had sufficient notice to avoid prejudice.”). If constructive is

not established, a court must also consider actual notice. Ottens,

2010 UT App 237, ¶ 50. Accordingly, because we concluded in

Ottens that one of the added defendants did not have constructive

notice within the limitations period under the Notice Transfer Test,

we also considered "whether [the added defendant's] actual

knowledge [could] be shown from other circumstances.” Id.

¶8 The case of Gary Porter Construction v. Fox Construction, Inc.,

2004 UT App 354, 101 P.3d 371, provides further support for a twopart

notice analysis. There, an excavation subcontractor brought an

action against a general contractor. Id. ¶ 6. The subcontractor later

amended its complaint to add a surety as an additional defendant.

Id. The district court granted the surety's motion for summary

judgment after determining that no identity of interest existed

between the surety and the original defendant contractor and

ruling that the amended complaint did not relate back to the

original complaint under rule 15(c). Id. ¶ 8. On appeal, we observed

that "the parties and the trial court focused only upon the Notice

Transfer Test” and that "[a]pplication of the relation back doctrine

also would be appropriate if [the surety] had sufficient actual

notice of the original pleading prior to the running of the statute of

limitations.” Id. ¶ 45. We noted that there were "some indications

that [the surety] did have actual notice,” id. ¶ 45 n.13 (emphasis

added), so we reversed the grant of summary judgment and

remanded "for a determination of whether [the surety] had actual

notice of the nature of [the plaintiff's] claims against [the original

defendant], . . . before the statute of limitations ran,” id. ¶ 45.

¶9 In this case, the district court granted summary judgment

based on its determination that the legal positions of Appellees and

Wright v. PK Transport

20120239-CA 6 2014 UT App 93

the original defendants were not the same under the Notice

Transfer Test. However, as Wright points out, the court did not

address whether Wright provided actual notice to Appellees. We

discuss each type of notice in turn.

¶10 To establish that Appellees received constructive notice

under the Notice Transfer Test, Wright must demonstrate that the

original defendants and Appellees "share the same interest

concerning the litigation, including their legal defenses and

positions such that notice of the action against one serves to

provide notice of the action to the other.” See Ottens, 2010 UT App

237, ¶ 45 (citation and internal quotation marks omitted). In Ottens,

the plaintiff brought a negligence suit against the original

defendant after a chair fell from the back of the defendant's pickup

truck while in transit on the freeway. Id. ¶ 7. The chair caused an

accident that resulted in injury and damage. Id. After the statute of

limitations expired, the plaintiff sought to amend her complaint to

add another defendant. Id. ¶ 14. An employee of the added

defendant had helped secure the chair to the pickup truck. Id. ¶ 5.

We noted that while both the original and added defendant

"would assert that the chair was not negligently secured, they

would be in direct disagreement as to which of them bears the risk

of a contrary determination.” Id. ¶ 55. We therefore determined

that no identity of interest existed between the original and added

defendant. Id. Consequently, we held that the added defendant did

not have constructive notice by virtue of the Notice Transfer Test,

and we ultimately concluded that the plaintiff's amendment to join

the added defendant did not relate back to the original complaint

and was thus barred by the statute of limitations. Id.

¶11 Here, one of the original defendants, Dunn, was involved in

the underlying accident while driving a tractor-trailer that

belonged to the other original defendant, PK Transport. Dunn was

hauling trailers and sod that belonged to Appellees. As was the

case in Ottens, Appellees and the original defendants may share a

similar defense, such as an assertion that the accident was not the

result of Dunn's negligence. However, as between them, Appellees

Wright v. PK Transport

4. This allocation of fault notice could not have served as actual

notice to Appellees for the purposes of this case because the

original defendants filed the notice after the statute of limitations

had expired.

20120239-CA 7 2014 UT App 93

and the original defendants have different, even directly

conflicting, legal positions. Dunn has argued that he was the

employee of either PK Transport or Appellees on the night of the

accident and is entitled to indemnification from his employer. But

the district court observed that "PK Transport and [Appellees]

have presented conflicting deposition testimony regarding which

of the entities requested Mr. Dunn's services in making the trip.”

Thus, each party's legal position is necessarily different from the

other as each maintains that it is not liable because Dunn was not

in its employ at the time of the accident. Additionally, the original

defendants attempted to allocate fault to Appellees as non-parties

in a rule 9 allocation of fault notice to Wright.4 See Utah R. Civ. P.

9(l). Under these circumstances, it is clear that the original

defendants and Appellees "would be in direct disagreement as to

which of them bears the risk” if a jury found Dunn's negligence to

be the cause of the accident. See Ottens, 2010 UT App 237, ¶ 55. We

therefore agree with the district court that Wright cannot establish

that Appellees received constructive notice by virtue of the Notice

Transfer Test. However, as discussed above, application of the

relation-back doctrine may still be appropriate if Appellees

received actual notice.

¶12 Actual notice for purposes of rule 15(c) requires that, prior

to the running of the statute of the limitations, the newly added

party have notice of the plaintiff's claims and not merely notice of

the underlying events. See Ottens v. McNeil, 2010 UT App 237, ¶ 50,

239 P.3d 308 (concluding that the plaintiff "did not present any

evidence that could support a finding that [the added defendant]

had actual knowledge of the claims asserted against [the original

defendant] before the statute of limitations expired” (emphasis

added)); Gary Porter Constr., 2004 UT App 354, ¶ 45 ("Application

of the relation back doctrine also would be appropriate if [the

Wright v. PK Transport

20120239-CA 8 2014 UT App 93

added defendant] had sufficient actual notice of the original pleading

prior to the running of the statute of limitations.” (emphasis

added)). Wright argues that deposition testimony he submitted

with his opposition to Appellees' motion to dismiss was sufficient

to create at least a genuine factual issue regarding actual notice and

to thereby defeat Appellees' motion, even if that motion was

treated as one for summary judgment. See Orvis v. Johnson, 2008 UT

2, ¶ 6, 177 P.3d 600 ("Summary judgment is appropriate 'if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.'” (quoting Utah R. Civ.

P. 56(c))). Appellees argue that the record does not support a

finding of actual notice because the earliest that they became

involved in the lawsuit "in any way” was on June 5, 2008—eight

months after the statute of limitations expired—when Wright

deposed Riding. Appellees also assert that Wright did not notify

them of any claim until February 9, 2010, the date Appellees were

served with the amended complaint. While Wright does not

directly dispute these facts, he seeks to demonstrate actual notice

based on an agency theory. Wright asserts that actual notice of the

litigation to Appellees "is established by notice to Dunn.” Dunn is

one of the original defendants and, according to Wright, Appellees'

agent.

¶13 Even assuming without deciding that Wright could

demonstrate that Dunn was Appellees' agent at some point, Wright

has not directed this court to any record evidence that Dunn was

Appellees' agent on the day Dunn received noticed of Wright's

claims or at any point thereafter. Wright fails to show precisely

when this agency-based notice would have developed and what

facts indicate that the agency relationship was intact at any time

between Dunn's receipt of the original complaint and the

expiration of the statute of limitations. And while Wright's

complaint alleged that Dunn was an agent of Paradise Turf at the

time of the accident, Wright did not allege that Dunn was an agent

at any time after Dunn received notice of Wright's claims. Neither

Wright v. PK Transport

20120239-CA 9 2014 UT App 93

did Wright offer evidence of such a relationship in his opposition

to summary judgment. Wright also conceded at oral argument

that in 2007, when the lawsuit was filed, Dunn was no longer

an agent because Paradise Turf had been dissolved and the

employer/employee relationship had "long since passed.”

¶14 Despite viewing the facts and all reasonable inferences

drawn therefrom in the light most favorable to Wright and

notwithstanding the absence of an actual-notice analysis by the

district court, we cannot conclude that Wright put forth at least

"some indication[]” that Appellees received actual notice before the

statute of limitations had expired. See Gary Porter Constr. v. Fox

Constr., Inc., 2004 UT App 354, ¶ 45 n.13, 101 P.3d 371; cf. Ottens,

2010 UT App 237, ¶ 50. Accordingly, Wright cannot establish that

the original defendants and Appellees shared an identity of interest

because Appellees received neither actual nor constructive notice

of the claims against them. Wright's relation-back argument

therefore fails, and his claims against Appellees are barred by the

statute of limitations.

II. Wright's Rule 56(f) Motion

¶15 Wright also requested a continuance under rule 56(f) of the

Utah Rules of Civil Procedure, seeking additional time to conduct

discovery relating to Appellees. See Utah R. Civ. P. 56(f). Although

the district court's written ruling does not explicitly address

Wright's rule 56(f) request for additional discovery, the court stated

that it was "exercis[ing] its discretion” to determine that "justice

requires no further proceedings.” Accordingly, we construe the

court's treatment of Wright's rule 56(f) motion as a denial and

review that decision for an abuse of discretion. See Energy Mgmt.

Servs., LLC v. Shaw, 2005 UT App 90, ¶ 8, 110 P.3d 158.

¶16 The district court observed that due to Appellees' "absence

during the early stages of the proceeding,” Appellees "were not

present to protect their interests during depositions of parties and

other witnesses.” The court reasoned that the "shape of the entire

Wright v. PK Transport

20120239-CA 10 2014 UT App 93

proceeding to date may have been different by virtue of

[Appellees'] participation, and adding them in the eleventh

hour . . . cannot be anything but prejudicial.” We agree. Wright had

already conducted years of discovery. Wright had deposed Riding

in pursuing his claims against the original defendants. He had

obtained or had an opportunity to obtain all information relevant

to the relationship between Appellees and the original defendants.

Upon receiving PK Transport's answer on August 6, 2007, Wright

knew that Paradise Turf may be a necessary party and that PK

Transport intended to allocate fault to Paradise Turf. Yet, Wright

did not commence litigation or discovery against Appellees for

over two years. Indeed, it is telling that during oral argument

before this court, counsel for Wright essentially conceded that the

decision to amend the complaint to add Appellees after the statute

of limitations had expired was not the result of a mistake as to

Appellees' identity, but rather part of a "divide and conquer”

litigation strategy. Moreover, Wright's request for a continuance

did not state what specific discovery would be necessary to oppose

Appellees' motion for summary judgment—for example, deposing

certain witnesses or securing their affidavits. See Aspenwood, LLC v.

C.A.T., LLC, 2003 UT App 28, ¶¶ 20–21, 73 P.3d 947. Neither did

Wright identify any facts he believed would be uncovered through

his discovery that would controvert the basis of Appellees' motion.

Id. ¶ 21. Accordingly, the district court did not abuse its discretion

in denying Wright's rule 56(f) motion.

¶17 For the foregoing reasons, we determine that the district

court did not err by granting summary judgment in favor of

Appellees. Affirmed.

VOROS, Judge (concurring):

¶18 I concur in the majority opinion. I write only to suggest that

the federal approach to the relation-back doctrine with respect to

adding parties is both more clear and more rational than the Utah

approach. First, the federal doctrine is governed by rule. In

Wright v. PK Transport

20120239-CA 11 2014 UT App 93

contrast, Utah's relation-back doctrine exists only in caselaw.

Nothing in the rule itself puts the practitioner on notice that rule

15(c) applies to an exception not mentioned in the rule.

¶19 Second, although similar to the Utah approach, the federal

approach coexists more comfortably with the principle of fair

notice underlying statutes of limitations. See Russell Packard Dev.,

Inc. v. Carson, 2005 UT 14, ¶ 28, 108 P.3d 741 (indicating that the

statute of limitations serves "to promote justice by preventing

surprises through the revival of claims that have been allowed to

slumber until evidence has been lost, memories have faded, and

witnesses have disappeared” (citation and internal quotation marks

omitted)).

¶20 For example, under rule 15(c) of the Federal Rules of Civil

Procedure, an amended complaint naming an additional party

relates back to the original complaint only if—among other

requirements—the new defendant both "(i) received such notice of

the action that it will not be prejudiced in defending on the merits;

and (ii) knew or should have known that the action would have

been brought against it, but for a mistake concerning the proper

party's identity.”

¶21 And while the federal rule, like Utah's relation-back

doctrine, allows a plaintiff to demonstrate notice by showing an

identity of interest between the new defendant and an existing

defendant, the commonality must relate to the identities of the two

entities, and not (as under Utah law) to whether their legal

defenses coincide. Compare Cooper v. United States Postal Serv., 471

U.S. 1022, 1025 n.3 (1985), and Singletary v. Pennsylvania Dep't of

Corr., 266 F.3d 186, 197–98 (3d Cir. 2001), with Penrose v. Ross, 2003

UT App 157, ¶¶ 15–20, 71 P.3d 631. Thus, "[i]n finding an identity

of interest, courts usually require substantial shared structural and

corporate identity” or that "the business operations of the parties

are so closely related that notice to one provides notice to the

other.” 3 James W. Moore, Moore's Federal Practice § 15.19(3)(c)

(Daniel R. Coquillette et al. eds., 2013). An identity of interest may

Wright v. PK Transport

20120239-CA 12 2014 UT App 93

also be found "when the two parties are co-executors of an estate”

or "share[] legal counsel.” Id. This approach rationally links the

concept of identity of interest to the relevant factor, notice. By

contrast, that the defenses of two otherwise unrelated entities

coincide does little to establish that notice to one provides notice to

the other. The federal rule also requires that the notice and

knowledge factors "be satisfied within the 120-day period provided

for service of process of the original complaint.” Id. § 15.19(3)(e)

(citing Fed. R. Civ. P. 15(c)(1)(C)).

¶22 For the foregoing reasons, I urge the Supreme Court

Advisory Committee on the Rules of Civil Procedure to consider

proposing an amendment to Utah rule 15 along the lines of the

federal rule—or at least to conform our existing rule to controlling

caselaw.