Pinder v. Duchesne , 2020 UT 68 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 68
IN THE
SUPREME COURT OF THE STATE OF UTAH
VIRGINIA PINDER, ESTATE OF ROBERT J. PINDER,
ROAD RUNNER OIL COMPANY, and JJNP RANCHES,
Appellants,
v.
DUCHESNE COUNTY SHERIFF, DUCHESNE COUNTY ATTORNEY,
and STATE OF UTAH,
Appellees.
ESTATE OF ROBERT J. PINDER, VIRGINIA PINDER,
ROAD RUNNER OIL COMPANY, and JJNP RANCHES,
Appellants,
v.
DUCHESNE COUNTY, et al.,1
Appellees.
No. 20181026
Heard March 11, 2020
Supplemental Briefing Completed July 20, 2020
Filed October 22, 2020
On Direct Appeal
Fourth District, Heber
The Honorable Jennifer A. Brown
__________________________________________________________
1 David L. Boren, personally and in his official capacity as
Duchesne County Sheriff, Stephen D. Foote, personally and in his
official capacity as Duchesne County Attorney, Jonathan A.
Stearmer, personally and in his official capacity as Deputy County
Attorney for Duchesne County, Travis Mitchell, in his personal
capacity, Sean D. Reyes, in his official capacity as Attorney
General for the State of Utah, Michael D. Wims, personally and in
his official capacity as an Assistant Utah Attorney General, Brett J.
Delporto, personally and in his official capacity as an Assistant
Utah Attorney General, and State of Utah.
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
No. 160500102
Third District, Salt Lake
The Honorable L. Douglas Hogan
No. 150904861
Attorneys:
Trent J. Waddoups, Salt Lake City, for appellants
Joshua D. Davidson, Asst. Solic. Gen., Salt Lake City, for appellees
State of Utah, Sean D. Reyes, Michael D. Wims, and Brett
J. Delporto
Jesse C. Trentadue, Noah M. Hoagland, and Sarah Jenkins Dewey,
Salt Lake City, for appellees Duchesne County, Jonathan
A. Stearmer, Stephen D. Foote, David J. Boren, and Travis Mitchell
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Over twenty years ago, Duchesne County law
enforcement seized property belonging to appellants Virginia
Pinder, Robert Pinder, Road Runner Oil Company, and JJNP
Ranches (collectively, the Pinders) as part of a murder
investigation.2 Although some of the property was admitted into
evidence in the murder trial of Virginia and Robert‘s son (John),
most of the property was never used in any criminal proceedings.
¶2 Years later (and after filing two related lawsuits), the
Pinders sued Duchesne County and the State of Utah, along with
several county and state officials, in the Third District Court to
recover the seized property and for damages. The Third District
Court dismissed the case for several reasons, but mainly because
it believed that the Pinders‘ causes of action were barred by the
Governmental Immunity Act of Utah (UGIA), see UTAH CODE
§§ 63G-7-101 to -904, and by their applicable statutes of
limitations.
__________________________________________________________
2 Robert Pinder died in 2016; his estate has taken his place as a
plaintiff.
2
Cite as: 2020 UT 68
Opinion of the Court
¶3 While the litigation in the Third District Court was
ongoing, the Pinders also filed a petition to recover property in
the Fourth District Court. The petition sought to recover the
property that had been admitted into evidence in John Pinder‘s
murder trial. The Fourth District Court granted the petition but
rejected the Pinders‘ request for attorney fees.
¶4 The Pinders appealed the Third District Court‘s
dismissal of their claims and the Fourth District Court‘s denial of
attorney fees. We consolidated the cases for appeal. We affirm
both the Third District Court‘s dismissal of the Pinders‘ causes of
action and the Fourth District Court‘s denial of attorney fees.
BACKGROUND
¶5 In 1998, Robert and Virginia Pinder‘s son, John, was
investigated for a double homicide. During the investigation,
officers from the Duchesne County Sheriff‘s Office (DCSO)
executed search warrants and seized property—including
vehicles, guns, family photographs, and ammunition—from the
Pinders‘ ranch in Duchesne County.
¶6 Most of the seized property was never used in criminal
proceedings, including in John Pinder‘s criminal trial, which
concluded in 2000. The seized property, however, was not
returned to the Pinders until 2017. Over the years, government
officials gave several reasons for not returning the property. For
example, they said that: (1) they needed the seized property for
John Pinder‘s ―ongoing criminal case‖; (2) the seized property
belonged to John—not to Robert and Virginia; (3) prosecutors
needed the seized property in case ―additional charges [were]
brought against John Pinder, based upon investigations . . . on
cold cases; and (4) prosecutors needed it in case John Pinder was
―granted a new trial.‖3 According to the Pinders, in 2010, a
__________________________________________________________
3 John Pinder ―was convicted on eleven felony counts in
connection with the murders‖ of two people. State v. Pinder
(Pinder I), 2005 UT 15, ¶ 1, 114 P.3d 551. His latest challenge to
those convictions—a federal habeas petition—was rejected earlier
this year. See Pinder v. Crowther, 803 F. App‘x 165, 167 (10th Cir.
2020) (denying John‘s request for a certificate of appealability to
challenge the federal district court‘s dismissal of his habeas
petition); Pinder v. State, 2015 UT 56, ¶¶ 1–3, 367 P.3d 968
(affirming the dismissal of John‘s petition for relief under the
Post–Conviction Remedies Act); Pinder I, 2005 UT 15, ¶¶ 1, 19 n.2
(continued . . .)
3
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
Duchesne County attorney even told the Pinders‘ attorney that
they ―would get the guns back over his dead body.‖
¶7 Starting in 2009, the Pinders brought four actions (the
first in the Eighth District Court, the second in federal district
court, the third in the Third District Court, and the fourth in the
Fourth District Court) to recover the seized property or damages.
These last two actions are the subject of this appeal, but we briefly
summarize the other two here as well.
The Eighth District Action
¶8 The Pinders first sued for the return of their property in
2009 in the Eighth District Court (Eighth District Action). Their
complaint named the sheriff of Duchesne County, Travis Mitchell,
as the only defendant. It alleged that law enforcement officers
from DCSO had unlawfully seized property from the Pinders‘
ranch in 1998. The Pinders demanded that Sheriff Mitchell return
or pay damages for ―the property listed [in the complaint] and
any other personal property removed from the possession‖ of the
Pinders. The Eighth District Court dismissed the case without
prejudice in 2010, holding that it lacked subject matter jurisdiction
because the Pinders had not complied with the UGIA by serving a
notice of claim on a Duchesne County official before suing.
The Federal Action
¶9 After the Eighth District Action ended, the Pinders sent a
letter to the Duchesne County Clerk-Auditor (2011 Notice of
Claim) on January 1, 2011, demanding the return of the property
and giving notice of their intent to bring a claim under 42 U.S.C.
section 1983 in federal court. Having received no response, the
Pinders sued Sheriff Mitchell six months later in the federal
district court for the District of Utah (the Federal Action). The
federal district court dismissed the case on ripeness grounds
because the Pinders had not pursued their state law remedies.
Pinder v. Mitchell, No. 2:11CV508 DAK, 2015 WL 461352, at *2 (D.
Utah Feb. 3, 2015). The Tenth Circuit Court of Appeals later
affirmed. Pinder v. Mitchell, 658 F. App‘x 451, 456–57 (10th Cir.
2016).
The Third District Action
¶10 While the appeal of the Federal Action was pending, the
Pinders sued again on July 16, 2015, in the Third District Court
(affirming, on direct appeal, John‘s convictions of two counts of
aggravated murder and related crimes).
4
Cite as: 2020 UT 68
Opinion of the Court
(Third District Action), which is one of the two cases before us on
appeal. They did not file a new notice of claim under the UGIA
before doing so. The Pinders did, however, file a notice of claim
on October 28, 2016 (2016 Notice of Claim), asking for damages
for the ―wrongful taking, damaging, seizure, and retention of the
[Pinders‘] personal property.‖
¶11 The Pinders‘ amended complaint (filed May 1, 2017)
named several defendants: (1) Duchesne County, former sheriffs
David Boren and Travis Mitchell, county attorney Stephen Foote,
deputy county attorney Jonathan Stearmer (collectively, County
defendants); and (2) the State of Utah, Utah Attorney General
Sean Reyes, and Assistant Utah Attorneys General (AAGs)
Michael Wims and Brett Delporto (collectively, State defendants).
It also asserted six causes of action that are relevant to this appeal:
(1) inverse condemnation,4 (2) conversion; (3) federal due process;
(4) civil conspiracy; (5) negligence; and (6) a sixth cause of action,
entitled ―Declaratory Relief, Theft and Treble Damages‖ (Sixth
Cause of Action), in which the Pinders sought a declaration that
the defendants committed criminal acts.
¶12 The Pinders‘ amended complaint alleged that the
defendants seized their property in November 1998 and that the
defendants had ―concocted many frivolous legal theories over the
past 18+ years to attempt to interfere with [the Pinders‘] right to
possess their own property.‖ It also alleged that the defendants
had ―never proffered any genuine, lawful or non-frivolous reason
for continually refusing to return [the Pinders‘] property or
‗provide just compensation.‘‖ It further asserted that the
defendants had ―insisted that the [Pinders‘] property might
possibly be used as ‗evidence‘ in the future even though it [had]
never been used or held as ‗evidence.‘‖
__________________________________________________________
4 The Pinders call their inverse condemnation action a takings
claim. But it is properly characterized as an inverse condemnation
action because that is the action that a property owner may bring
when the government has allegedly taken or damaged private
property for public use ―without a formal exercise of the eminent
domain power.‖ Farmers New World Life Ins. Co. v. Bountiful City,
803 P.2d 1241, 1243 (Utah 1990) (emphasis omitted). For that
reason, we refer to the Pinders‘ ―takings claim‖ as an inverse-
condemnation claim, although we recognize that the parties and
the district court refer to it as a takings claim. The name we use
for the claim makes no difference to our analysis.
5
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶13 Responding to the Pinders‘ allegations, the County
defendants filed several motions for summary judgment.
Similarly, the State defendants moved to dismiss the amended
complaint under rule 12(b)(6) of the Utah Rules of Civil
Procedure. As detailed below, the Third District Court granted the
defendants‘ motions, leading to the dismissal of all the Pinders‘
claims against all the defendants. Here, we summarize the County
defendants‘ motions for summary judgment; then we go over the
State defendants‘ motion to dismiss.
¶14 The County defendants first moved for summary
judgment on the Pinders‘ actions for conversion, negligence, and
declaratory relief. They argued that the Pinders‘ ―claims accrued
no later than September 2, 2009,‖ the date they filed the Eighth
District Action, and so were barred by both (1) the UGIA‘s notice-
of-claim provisions and (2) the applicable statutes of limitations.
The Third District Court granted this motion because, in its view,
―the challenged claims likely accrued in 2000,‖ and so the Pinders,
under the UGIA, should have filed a notice of claim by 2001 but
did not do so until 2016. See UTAH CODE § 63G-7-402 (barring a
claim against a governmental entity or its employee ―unless notice
of claim is filed . . . within one year after the claim arises‖).
¶15 The County defendants then moved for summary
judgment on the federal due process claim that the Pinders
brought under 42 U.S.C. section 1983. The Third District Court
granted this motion, holding that the Pinders‘ ―due process rights
[had] not been violated.‖
¶16 Finally, the County defendants moved for summary
judgment on the inverse condemnation and civil conspiracy
actions. Relevant here, the Third District Court granted the
motion, holding that the causes of action were barred by their
applicable statutes of limitations.
¶17 The Third District Court thus dismissed on summary
judgment all the Pinders‘ causes of action against the County
defendants.
¶18 The State defendants moved to dismiss all the claims in
the amended complaint under rule 12(b)(6) of the Utah Rules of
Civil Procedure. Among other things, they argued that (1) the
claims were barred by the UGIA because the Pinders did not
serve a notice of claim on the State defendants before suing, let
alone within one year of their claims accruing; (2) there is no
taking when law enforcement seizes and holds potential evidence;
and (3) each cause of action was barred by the applicable statute
6
Cite as: 2020 UT 68
Opinion of the Court
of limitations because the Pinders‘ ―claims accrued in November,
1998, the date the property was seized.‖
¶19 The Pinders opposed the State defendants‘ motion to
dismiss, but only as to the AAGs—not as to the State of Utah and
the Attorney General. They did so because, at the time, the State
and the Attorney General were in default. The Pinders even said
in their opposition that they ―limit their response to‖ the ―non-
defaulting parties.‖
¶20 After the Pinders filed their opposition, the Third
District Court set aside the State and Attorney General‘s entry of
default. It then gave the Pinders fourteen days to file any
opposition against the motion to dismiss as to the State and the
Attorney General. The Pinders did not do so. The court, as a
result, held in granting the State defendants‘ motion to dismiss
that the Pinders had not opposed the motion as to the State and
the Attorney General.
¶21 The Third District Court then provided a litany of
reasons for why the Pinders‘ claims against the AAGs were
barred. Relevant here, it held that the UGIA barred the claims
because the Pinders did not ―file a notice of claim within one year
of their injury and before filing suit.‖5 See UTAH CODE § 63G-7-402.
Additionally, held the Third District Court, all the Pinders‘ claims
were barred by their applicable statutes of limitations because
their claims accrued ―certainly by 2009 when [the Pinders]
initially brought suit . . . , if not earlier.‖
¶22 With that, the Third District Court had dismissed all the
claims against all the defendants.
The Fourth District Action
¶23 On June 13, 2016 (while the Third District Action was
pending), the Attorney General wrote to DCSO to notify it that the
State no longer needed to retain most of the property that the
Pinders claimed was theirs and that ―most of the items held
[could] be returned or disposed of as allowed by statute.‖ DCSO,
in turn, wrote to Virginia Pinder the following month to tell her
that ―many items being held in the [sheriff‘s office‘s] evidence
room no longer need[ed] to be held as evidence.‖
__________________________________________________________
5 In a later ruling, the Third District Court clarified that the
UGIA did not bar the inverse condemnation claim but that it was
still barred by the statute of limitations.
7
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶24 After receiving the letter from DCSO, the Pinders filed
the 2016 Notice of Claim with the County defendants and State
defendants, demanding damages for the ―wrongful taking,
damaging, seizure, and retention of the [Pinders‘] personal
property.‖
¶25 Days later, the Pinders filed a petition under Utah Code
section 24-3-104 in the Fourth District Court (the Fourth District
Action), which is the other case before us on appeal. They sought
the ―prompt and expeditious return of all their property,‖
including property that had been received by the Fourth District
Court when it conducted John Pinder‘s trial.
¶26 The Fourth District Court eventually granted the
Pinders‘ petition in October 2017, ordering the return of the
property listed in the petition (except for the property admitted
into evidence at John Pinder‘s criminal trial). The property was
then returned to the Pinders.
¶27 Meanwhile, the Pinders had requested an award of
attorney fees under state and federal statutes. The Fourth District
Court denied that request because it believed that the Pinders had
not identified ―a statute or contract which authorizes an award of
attorney fees.‖
The Appeal
¶28 The Pinders appealed the dismissal of their claims in the
Third District Action and the denial of attorney fees in the Fourth
District Action. We consolidated the appeals. After oral argument,
we requested supplemental briefing from the parties about subject
matter jurisdiction under the UGIA over four of the causes of
action in the Third District Action and over the request for
attorney fees in the Fourth District Action.
¶29 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
STANDARDS OF REVIEW
¶30 We review whether the Third District Court had subject
matter jurisdiction over the Pinders‘ causes of action. Whether a
district court has subject matter jurisdiction is a question of law,
and we thus review it for correctness. Amundsen v. Univ. of Utah,
2019 UT 49, ¶ 19, 448 P.3d 1224 (citation omitted).
¶31 We also review whether the Third District Court erred in
dismissing the inverse condemnation and federal due process
claims and the Sixth Cause of Action by granting the County
defendants‘ motions for summary judgment and the State
8
Cite as: 2020 UT 68
Opinion of the Court
defendants‘ rule 12(b)(6) motion to dismiss.6 Our method of
reviewing an order granting summary judgment differs from the
one we use to review an order granting a rule 12(b)(6) motion to
dismiss. Although we review both for correctness, Ruiz v.
Killebrew, 2020 UT 6, ¶ 7, 459 P.3d 1005 (summary judgment); Am.
W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 7, 342 P.3d 224 (rule
12(b)(6) motion to dismiss), the underlying standards are
different. Summary judgment is proper only if ―the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.‖
UTAH R. CIV. P. 56(a). But dismissal under rule 12(b)(6) is proper
only if—accepting the plaintiff‘s description of facts alleged in the
complaint to be true—the plaintiff ―can prove no set of facts in
support of his claim.‖ Am. W. Bank Members, L.C., 2014 UT 49, ¶ 7
(citation omitted).
¶32 Finally, we review the Fourth District Court‘s decision to
deny the Pinders‘ requests for attorney fees. We review for
correctness whether the Fourth District Court has subject matter
jurisdiction over those requests. See supra ¶ 30. Because we hold
that the Fourth District Court did have subject matter jurisdiction,
we then review its denial of attorney fees under Utah Code
section 78B-5-825 and 42 U.S.C. 1988. As for Utah Code section
78B-5-825, Utah appellate courts review whether a defense is
meritless for correctness, but we review whether it was raised in
bad faith for clear error. Kirkham v. Widdison, 2019 UT App 97,
¶ 21, 447 P.3d 89 (citing Bresee v. Barton, 2016 UT App 220, ¶ 15,
387 P.3d 536). And as for 42 U.S.C. 1988, we review the denial of
attorney fees for abuse of discretion. Harris v. Marhoefer, 24 F.3d
16, 18 (9th Cir. 1994) (citation omitted).
ANALYSIS
¶33 We first review the Pinders‘ appeal of the Third District
Action. We affirm the dismissal of all the causes of action brought
in that suit. Then, we review the Pinders‘ appeal of the Fourth
__________________________________________________________
6 The Third District Court treated the State defendants‘ motion
to dismiss on statute of limitations grounds as a rule 12(b)(6)
motion. We do the same, given that the Pinders have not
challenged that treatment on appeal. But see Tucker v. State Farm
Mut. Auto. Ins. Co., 2002 UT 54, ¶ 11, 53 P.3d 947 (holding that a
defendant may raise a statute of limitations defense in a motion to
dismiss under civil rule 12(b)(6), ―provided that the trial court
treats the motion as one for summary judgment‖).
9
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
District Action—specifically the Fourth District Court‘s denial of
the Pinders‘ requests for attorney fees. We affirm that denial.7
I. THE THIRD DISTRICT ACTION
¶34 We begin with our review of the Third District Action by
reviewing whether the Third District Court erred in determining
when the Pinders‘ claims accrued. Then, we determine whether
the Third District Court lacked subject matter jurisdiction over
any of the Pinders‘ claims.8 After that, we determine whether the
Third District Court erred in holding that the remaining claims
were barred by the statutes of limitations. Finally, we sort out two
issues that involve waiver and preservation. As a result of those
two issues, we need not address the causes of action against the
State of Utah and the Attorney General in this opinion, nor the
Pinders‘ due process claim against any of the defendants. We
ultimately affirm the outcome of the Third District Action.
A. When the Pinders’ Causes of Action Accrued
¶35 Because the timing of the accrual of the Pinders‘ claims
is critical to our discussion of subject matter jurisdiction under the
UGIA and the statute of limitations, see infra ¶¶ 67, 71, we now
determine whether the Third District Court erred in determining
when the Pinders‘ claims accrued.
__________________________________________________________
7 The Pinders moved for summary judgment in both the Third
District Action and the Fourth District Action, asking the
respective district courts to hold that ―all forms of civil forfeiture
are unconstitutional.‖ Each court denied the motion. The Fourth
District Court denied the motion as seeking an ―improper
advisory opinion‖ and as moot. The Third District Court similarly
held that ―any ruling on this issue would amount to an
impermissible advisory opinion.‖ Even though the Pinders argue
in their reply brief that ―all forms of the civil forfeiture side hustle
are unlawful,‖ the Pinders have not challenged the district courts‘
holdings that any ruling on the issue would be an advisory
opinion. We thus do not address here whether civil forfeiture is
constitutional.
8 We generally begin our analysis with subject matter
jurisdiction (when it is an issue), but here we discuss the accrual
date first, given that when the Pinders‘ claims accrued
determines, in part, whether the district court had subject matter
jurisdiction over them.
10
Cite as: 2020 UT 68
Opinion of the Court
¶36 Before doing so, we underscore an appellant‘s burden of
persuasion on appeal. It is the appellant‘s job to tell us where and
how the district court went wrong. Kendall v. Olsen, 2017 UT 38,
¶ 12, 424 P.3d 12 (―Our rules of appellate procedure place the
burden on the appellant to identify and brief any asserted
grounds for reversal of the decision below.‖); Polyglycoat Corp. v.
Holcomb, 591 P.2d 449, 450–51 (Utah 1979) (―On appeal, it is
appellant‘s burden to convince this Court that the trial court
exceeded its authority.‖). In other words, an appellant must
provide ―sufficient argument for ruling in its favor.‖ Bank of Am.
v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (citation omitted). To do
that, the ―appellant‘s brief must assert contentions of error that
occurred in the proceedings below and develop a reasoned
argument for why the purported errors should be reversed.‖
Anderson v. Anderson, 2018 UT App 19, ¶ 24, 414 P.3d 1069; see also
UTAH R. APP. P. 24(a)(8) (―The argument must explain, with
reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal.‖). ―[A]n
appellant who fails to adequately brief an issue ‗will almost
certainly fail to carry its burden of persuasion on appeal.‘‖ Bank of
Am., 2017 UT 2, ¶ 12 (citation omitted).
¶37 Keeping the Pinders‘ burden of persuasion in mind, we
note that a cause of action accrues ―upon the happening of the last
event necessary to complete the cause of action.‖ Russell Packard
Dev., Inc. v. Carson, 2005 UT 14, ¶ 20, 108 P.3d 741 (citation
omitted); see also Gressman v. State, 2013 UT 63, ¶ 20, 323 P.3d 998
(―A cause of action arises ‗when it becomes remediable in the
courts,‘ which normally occurs when ‗all elements of a cause of
action come into being.‘‖ (citation omitted)).
¶38 Now, we review when the causes of action against the
County defendants accrued. Then, we do the same for those
against the AAGs.
1. County Defendants
¶39 We now review whether the Third District Court erred
in determining when the Pinders‘ claims against the County
defendants accrued. In addressing the County defendants‘
motions for summary judgment, the Third District Court held that
the negligence claim, the conversion claim, and the Sixth Cause of
Action accrued in 2000 and that the civil conspiracy and inverse
condemnation actions accrued by 2009. Below, we discuss how
the district court arrived at those accrual dates. Then, we hold that
the Pinders have failed to carry their burden of persuasion on
11
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
their argument that the Third District Court erred in holding that
the causes of action accrued on those dates.
¶40 First, the Third District Court held that the Pinders‘
negligence claim accrued in 2000. The Third District Court
explained when each element of negligence had allegedly come
into being: that the County defendants ―owed [the Pinders] a duty
to lawfully use, return, or forfeit property,‖ that the defendants
―breached that duty . . . by instead continuing to simply hold [the
Pinders‘] property without legal justification,‖ and that the
defendants‘ ―actions caused them injury by depriving them of the
possession of their property.‖ See Scott v. Universal Sales, Inc., 2015
UT 64, ¶ 25, 356 P.3d 1172 (―Negligence claims have four distinct
elements—duty, breach, causation, and damages.‖). The Third
District Court then held that, because the County defendants
allegedly ―neglected to take any lawful action to use, forfeit, or
return‖ the Pinders‘ property in 2000, their negligence claim
accrued at that time.
¶41 Second, the Third District Court held that the Pinders‘
conversion claim accrued in 2000. It reasoned that the elements of
the conversion claim came into being by 2000: the County
defendants ―unlawfully deprived [the Pinders] of property not
when [the County defendants] seized it, but when they failed to
either use it at trial, return it, or forfeit it,‖ which was in 2000. See
Allred v. Hinkley, 328 P.2d 726, 728 (Utah 1958) (―A conversion is
an act of [willful] interference with a chattel, done without lawful
justification by which the person entitled thereto is deprived of its
use and possession.‖).
¶42 Third, the Third District Court held that the Sixth Cause
of Action against the County defendants accrued in 2000. The
Third District Court explained when each element of the
declaratory relief action was met:
Here, a justiciable controversy began in 2000, when
[the County defendants] allegedly failed to lawfully
use, forfeit, or return [the Pinders‘] property. The
parties‘ interests were and are adverse. [The
Pinders] have a legally protectable interest in the
return of the property. These issues became ripe for
determination when [the County defendants]
allegedly failed to exercise any legally available
option to use, forfeit, or return [the Pinders‘]
property in 2000. . . . [The Pinders‘] claim for
declaratory relief accrued at that time.
12
Cite as: 2020 UT 68
Opinion of the Court
See Bd. of Trs. of Wash. Cnty. Water Conservancy Dist. v. Keystone
Conversions, LLC, 2004 UT 84, ¶ 32, 103 P.3d 686 (―In a declaratory
action . . . , a party seeking a declaration of rights must show the
existence of ‗(1) a justiciable controversy, (2) parties whose
interests are adverse, (3) a legally protectible interest residing with
the party seeking relief, and (4) issues ripe for determination.‘‖
(citation omitted)).
¶43 Fourth, the Third District Court held that the civil
conspiracy claim accrued ―by 2009.‖ In so doing, it noted that the
―decision to retain the property was evidently made shortly after
the conclusion of John Pinder‘s trial.‖ The State defendants, wrote
the Third District Court, ―took the position that they needed to
retain the property while the appeals process played out and
while ancillary criminal investigations were conducted.‖ But, in
the Third District Court‘s view, ―[e]ven accepting [the Pinders‘]
assertion that [the State defendants] wrongfully directed [the
County defendants] to retain the property or conspired with those
defendants to deprive [the Pinders] of their property, they did so
many years ago—certainly by 2009 when [the Pinders] initially
brought suit.‖ See Pohl, Inc. of Am. v. Webelhuth, 2008 UT 89, ¶ 29,
201 P.3d 944 (―[C]ivil conspiracy requires proof of . . . ‗(1) a
combination of two or more persons, (2) an object to be
accomplished, (3) a meeting of the minds on the object or course
of action, (4) one or more unlawful, overt acts, and (5) damages as
a proximate result thereof.‘‖ (citation omitted)).
¶44 Fifth, the Third District Court held that the Pinders‘
inverse condemnation claim against the County defendants had
accrued at least by 2009. The Pinders, reasoned the Third District
Court, had ―alleged a taking since at least 2009, when they filed
suit in Utah Eighth District Court.‖ See also Farmers New World Life
Ins. Co. v. Bountiful City, 803 P.2d 1241, 1244 (Utah 1990) (―[A]n
inverse condemnation action requires (1) property, (2) a taking or
damages, and (3) a public use.‖).
¶45 As can be seen, the Third District Court made several
thorough rulings on when each of the Pinders‘ claims against the
County defendants accrued. In doing so, the Third District Court
set out the elements of each cause of action and analyzed how and
when the material undisputed facts fit into those causes of action.
By doing that, the Third District Court determined ―the
happening of the last event necessary to complete [each] cause of
action.‖ Russell Packard, 2005 UT 14, ¶ 20 (citation omitted)
(internal quotation marks omitted). That happening, in turn,
determined the accrual date of each cause of action.
13
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶46 To reverse the Third District Court‘s rulings on when the
claims accrued, we would need to find that it erred in its
reasoning about when the ―last event necessary to complete [each]
cause of action‖ occurred. Specifically, we would need to find that
the Third District Court erred by holding that the ―last event
necessary‖ to complete (1) the negligence claim, the conversion
claim, and Sixth Cause of Action occurred in 2000 and (2) the civil
conspiracy and inverse condemnation claims occurred by 2009.
¶47 Take, for example, the district court‘s ruling on the
inverse condemnation claim. The Third District Court believed
that the Pinders‘ inverse condemnation claim accrued at least by
2009, when the Pinders brought the Eighth District Action. The
Third District Court thus implicitly held that the inverse
condemnation action alleged in the Third District Action was
based on the same facts as the claim the Pinders had brought six
years earlier in the Eighth District Action. See supra ¶ 8. And if the
claim had already existed six years earlier, the ―last event
necessary to complete the cause of action‖ had also occurred six
years earlier, meaning the claim had accrued six years earlier as
well. To reverse that ruling, we would need to conclude that the
claim that the Pinders brought in the Eighth District Action was
somehow different than the inverse condemnation action they
brought in the Third District Action.
¶48 And in reviewing the Third District Court‘s rulings, we
rely on the Pinders, as the appellants, to identify and brief
whether the Third District Court was wrong in its analysis. Supra
¶ 36 (discussing an appellant‘s burden of persuasion on appeal).
The Pinders‘ analysis (especially in their opening brief), however,
is sparse as to how the Third District Court erred in determining
when the claims accrued. In their briefing, they did not go
through the elements of each cause of action and argue why the
Third District Court erred (if at all) in its reasoning about when
the ―last event necessary to complete‖ each of the causes of action
occurred.
¶49 Returning to the inverse condemnation example we used
above, the Pinders have not argued on appeal that the claim that
they brought in the Eighth District Action was somehow different
than the claim they now bring in the Third District Action.
Instead, without explanation, they argue only that the Pinders‘
―gripes raised earlier were not ipse dixit the accrual of [their] legal
claims as the Third District Court erroneously concluded.‖
Moreover, some of the Pinders‘ arguments even support the idea
that their inverse condemnation action existed by the time they
14
Cite as: 2020 UT 68
Opinion of the Court
filed the Eighth District Action. For example, they argue on
appeal that the defendants ―could have, and should have,
assessed their rights and obligations under the Utah Constitution
and acted lawfully before . . . the four lawsuits‖ and that ―[a]ll five of
[their] underlying cases related to the same issue of [the
defendants‘] refusal to return or pay for [the Pinders‘] property.‖
(Emphases added.) They further argue that the ―retention of [the]
property for about 19 years while the government interfered with
[the Pinders‘] right to possess [their] own property is precisely the
harm of which [they] complain[].‖
¶50 Rather than arguing that the ―last event necessary to
complete‖ each of their causes of action occurred at some later
time (and thus that their causes of action accrued at a later time),
the Pinders argue, under the doctrine of judicial estoppel, that
their claims accrued in 2016 (after they filed the Third District
Action): ―Because the defendants successfully insisted in prior
proceedings that [the Pinders‘] claims would only accrue once ‗the
prosecutor‘ agreed to release [their] property, the defendants were
estopped to deny that [their] claims only arose when the Utah
Attorney General finally provided notice in 2016.‖ But the Pinders
make this argument without even citing the record. This
conclusory argument is not the type of ―reasoned analysis‖ that
allows us to rule in a party‘s favor. See UTAH R. APP. P. 24(a)(8).
¶51 In their reply brief, the Pinders argue that the ―trial
courts‘ focus on the time of the interference was error because
‗refusal‘ to pay is the relevant triggering event.‖ But refusal to pay
is not an element of any of the causes of action that the Pinders
brought. See supra ¶¶ 40–44 (listing the elements of the Pinders‘
causes of action). And when we determine when a cause of action
accrues, we focus on when ―all elements of a cause of action come
into being.‖ Gressman, 2013 UT 63, ¶ 20 (emphasis added) (citation
omitted). Because refusal to pay is not an element of any of the
causes of action, it is not relevant to accrual.
¶52 Given the Pinders‘ briefing about the accrual of their
causes of action, we have no basis to conclude that the Third
District Court erred in holding that the negligence claim, the
conversion claim, and the Sixth Cause of Action accrued in 2000
and that the civil conspiracy and inverse condemnation claims
accrued by 2009. Thus, in our analysis below (addressing the
UGIA and the statute of limitations), infra ¶¶ 68–69, 72, 81, we
rely on these accrual dates.
15
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
2. Assistant Attorneys General
¶53 We now review whether the Third District Court erred
in determining when the Pinders‘ claims against the AAGs
accrued. The Third District Court held that all the Pinders‘ claims
against the AAGs accrued at least by 2009. After explaining the
Third District Court‘s reasons for this conclusion, we hold that, as
with the County defendants, the Pinders have failed to carry their
burden of persuasion on their argument that the Third District
Court erred in holding that the causes of action accrued by 2009.
¶54 The Third District Court held that all the Pinders‘ claims
against the AAGs accrued at least by 2009. In the Third District
Court‘s view, all the Pinders‘ claims (including the claim for
declaratory relief), accrued ―certainly by 2009 . . . , if not earlier‖:
All of these claims flow from [the AAGs‘] allegedly
wrongful refusal to return [the Pinders‘] property.
The decision to retain the property was evidently
made shortly after the conclusion of John Pinder‘s
trial. [The AAGs] took the position that they needed
to retain the property while the appeals process
played out and while ancillary criminal
investigations were conducted. Even accepting [the
Pinders‘] assertion that [the AAGs] wrongfully
directed [the County defendants] to retain the
property or conspired with those defendants to
deprive [the Pinders] of their property, they did so
many years ago—certainly by 2009 when [the
Pinders] initially brought suit. Plaintiffs‘ claims
accrued at that time, if not earlier.
¶55 The Third District Court thus relied on two points in
holding that the claims against the AAGs accrued by 2009: (1) that
the ―allegedly wrongful refusal to return‖ the Pinders‘ property
occurred ―shortly after the conclusion of John Pinder‘s trial‖
(which concluded in 2000) and (2) that even if the State
defendants did wrongfully direct the County defendants to retain
the property, they did so before the Pinders brought the Eighth
District Action in 2009.
¶56 To reverse the Third District Court, we would need to
find that it erred by holding that the Pinders‘ causes of action
accrued in 2000 or at least by 2009. And to do that, we would need
to find that it erred by implicitly holding that the last event
necessary to complete the Pinders‘ causes of action happened by
the end of John Pinder‘s trial (in 2000), when the ―property had
not been presented as evidence, forfeited, or returned to [the
16
Cite as: 2020 UT 68
Opinion of the Court
Pinders]‖ or by 2009 when the Pinders filed the Eighth District
Action. But the Pinders have not engaged with those holdings on
appeal. They have not argued that the Third District Court erred
in finding that the wrongful refusal to return the property first
occurred just after John Pinder‘s trial ended in 2000. Neither have
they argued that the Third District Court erred in finding that the
AAGs wrongfully directed the County defendants (assuming that
they did) before 2009. Rather, their arguments on appeal support
the argument that their claims existed by 2009. For example, they
argue that the defendants‘ ―violations over 19 years were flagrant
because the government did not attempt to invoke lawful options
available to it‖ and that the defendants ―went to extraordinary
lengths to prevent judicial review of their side hustle for two
decades.‖ (Emphases added.)
¶57 We, therefore, have no basis to conclude that the Third
District Court erred in holding that all the claims against the
AAGs accrued by 2009.
B. Subject Matter Jurisdiction
¶58 Here, we address whether the Third District Court had
subject matter jurisdiction over the Pinders‘ causes of action
against the County defendants and AAGs under the UGIA. We
hold that the Third District Court did not have subject matter
jurisdiction over the negligence, conversion, and civil conspiracy
claims.9 It had subject matter jurisdiction over the Sixth Cause of
Action (―Declaratory Relief, Theft, and Treble Damages‖) against
the County defendants, to the extent the Sixth Cause of Action is a
claim for declaratory relief.10 It did not have subject matter
jurisdiction over the Sixth Cause of Action, however, to the extent
it is an asserted demand for or cause of action for money or
damages.
__________________________________________________________
9 The UGIA does not apply to constitutional claims. Jensen ex
rel. Jensen v. Cunningham, 2011 UT 17, ¶ 51, 250 P.3d 465. So, it
does not apply to the Pinders‘ inverse condemnation and federal
due process claims. The Third District Court, therefore, had
subject matter jurisdiction over those claims, regardless of
whether the Pinders complied with the UGIA.
10 But to the extent the Sixth Cause of Action is a claim for
declaratory relief, it is barred by the statute of limitations. Infra
¶¶ 72–73, 81.
17
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶59 The UGIA grants these entities and employees ―‘broad,
background immunity‘ from injuries that result due to the
exercise of a governmental function.‖ Wheeler v. McPherson, 2002
UT 16, ¶ 10, 40 P.3d 632 (citation omitted). But the UGIA does
waive governmental immunity under ―narrow[] parameters.‖ Id.
To ―sue a governmental entity under these parameters, potential
plaintiffs must first provide, as a prerequisite to filing suit, formal
‗notice of claim‘ to the appropriate governmental official.‖ Id.
When potential plaintiffs fail to do so, a district court lacks subject
matter jurisdiction over any claims they later bring. Amundsen v.
Univ. of Utah, 2019 UT 49, ¶ 19, 448 P.3d 1224.
¶60 So, to determine whether the Third District Court had
subject matter jurisdiction over the negligence, conversion, and
civil conspiracy claims and over the Sixth Cause of Action, we
must first determine whether they are ―claims‖ under the UGIA.
If they are not, the UGIA‘s notice-of-claim provisions do not apply
to them. See UTAH CODE § 63G-7-101(2)(b). But if they are claims,
we must determine whether the Pinders followed the UGIA‘s
notice-of-claim provisions.
¶61 A claim under the UGIA is ―any asserted demand for or
cause of action for money or damages, whether arising under the
common law, under state constitutional provisions, or under state
statutes, against a governmental entity or against an employee in
the employee‘s personal capacity.‖ UTAH CODE § 63G-7-102
(emphasis added). Here, the Pinders‘ causes of action for
conversion, civil conspiracy, and negligence are claims under the
UGIA because they are all ―cause[s] of action for money or
damages‖ against governmental entities and employees.11 So, the
UGIA‘s notice-of-claim provisions apply to them.
__________________________________________________________
11 The Pinders seemingly argue in their supplemental briefs
that because their causes of action all related to a constitutional
taking, none of them are subject to the UGIA. The Pinders also
argue in their supplemental briefs we should disavow our case
law that says that the district court lacks subject matter
jurisdiction over a claim when the plaintiff has not complied with
the UGIA. We do not address these arguments. Not only were
they outside the scope of our supplemental briefing order, but the
Pinders could have raised them in their opening brief on appeal
but did not. A supplemental brief is not a place for a party to tack
on arguments that they could have made in their usual appellate
briefing but chose not to.
(continued . . .)
18
Cite as: 2020 UT 68
Opinion of the Court
¶62 Whether the Pinders‘ Sixth Cause of Action is a claim,
however, requires a more nuanced analysis. In the Sixth Cause of
Action (which the Pinders labeled ―Declaratory Relief, Theft and
Treble Damages‖), the Pinders allege that the defendants
―knowingly failed to comply with the law which requires return
of personal property‖ and that they ―knowingly interfered with
[the Pinders‘] efforts to reacquire their own property.‖ The
Pinders accordingly ―seek a judicial declaration that the Court
determine whether [the defendants] . . . committed acts which, if
prove[n] in the appropriate forum, would be criminal and upon
making such a determination to refer the appropriate individuals
to the appropriate authorities.‖ The Pinders copied into their
complaint the text of several criminal statutes, including a theft
statute that makes individuals who violate certain statutes ―civilly
liable for three times the amount of actual damages.‖ See UTAH
CODE § 76-6-412(2). The Pinders did not explicitly ask for damages
in the paragraphs under the heading of their Sixth Cause of
Action, but in their prayer for relief, they asked the court to,
among other things, ―[d]eclare and adjudge the controversy
described herein; . . . [i]ssue a declaratory judgment that the
policies, practices, acts and omissions complain[ed] of herein
violated [the Pinders‘] rights; . . . [r]esolve the criminal
proceedings in favor of [the Pinders];‖ and ―[a]ward [the Pinders]
all the relief sought herein including actual damages, treble
damages, and punitive damages.‖ (Emphasis added.)
¶63 The Sixth Cause of Action appears to be both an action
for declaratory relief and a cause of action for damages. It is an
action for declaratory relief because it asks the court for a ―judicial
declaration‖ about ―whether [the defendants] . . . committed acts
which, if proved in the appropriate forum, would be criminal and
upon making such a determination to refer the appropriate
individuals to appropriate authorities.‖ And it appears to be a
cause of action for damages because, not only did the Pinders
label it as ―Declaratory Relief, Theft and Treble Damages,‖ but at
the end of the amended complaint, the Pinders requested treble
damages (besides actual and punitive damages). That request
must refer to the Sixth Cause of Action, since the only other
reference the Pinders make to treble damages in the amended
complaint is in the Sixth Cause of Action. In short, the Sixth Cause
of Action is a sort of Frankenstein‘s monster: part action for
declaratory relief, part action for damages.
19
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶64 Declaratory relief actions are not subject to the UGIA
because they are not ―asserted demand[s] for or cause[s] of action
for money or damages.‖ UTAH CODE § 63G-7-102(2) (emphasis
added); see also Houghton v. Dep’t of Health, 2005 UT 63, ¶ 19 n.3,
125 P.3d 860 (recognizing that ―equitable claims are not
governed‖ by the UGIA‘s notice-of-claim provisions); Jenkins v.
Swan, 675 P.2d 1145, 1154 (Utah 1983) (holding that equitable
claims, such as claims for declaratory relief, are not subject to the
UGIA). Thus, to the extent that the Sixth Cause of Action is merely
a declaratory relief claim, the UGIA does not apply. That being
said, to the extent that the Pinders assert a cause of action for
damages, including treble damages, it is a ―claim‖ and the UGIA
applies.
¶65 Having determined that the negligence, conversion, and
civil conspiracy claims and (to a large extent) the Sixth Cause of
Action are claims subject to the UGIA, we now consider whether
the Pinders followed the UGIA‘s notice-of-claim provisions. They
did not, and so the Third District Court lacked subject matter
jurisdiction over these claims.
¶66 Potential plaintiffs who look to bring a claim against a
governmental entity or a governmental entity‘s employee in the
district courts must carefully comply with the UGIA‘s notice-of-
claim provisions. Amundsen, 2019 UT 49, ¶¶ 19, 29. If they do not
do so, the district court lacks subject matter jurisdiction over the
claim and must dismiss it. Id.
¶67 Relevant here, the UGIA requires a claimant to file a
notice of claim with the appropriate government official ―within
one year after the claim arises.‖ UTAH CODE § 63G-7-402. A ―claim
arises when the statute of limitations that would apply if the claim
were against a private person begins to run.‖ 12 Id.
§ 63G-7-401(1)(a). We now examine whether the Pinders filed a
timely notice of claim with the County defendants and the AAGs.
__________________________________________________________
12We requested supplemental briefing on whether the Pinders
had filed a notice of claim ―before maintaining an action‖ against
the defendants, including whether the 2011 Notice of Claim and
2016 Notice of Claim could satisfy that requirement. See UTAH
CODE § 63G-7-401. Upon further review, both notices of claim
were filed too late under the UGIA. Infra ¶¶ 68–69. As a result, we
need not address whether they were filed before maintaining the
Third District Action.
20
Cite as: 2020 UT 68
Opinion of the Court
1. County Defendants
¶68 The Pinders did not follow the UGIA before bringing
their negligence claim, conversion claim, the Sixth Cause of
Action, and the civil conspiracy claim against the County
defendants. That is because the first three claims accrued in 2000
and the civil conspiracy claim accrued by 2009. Supra ¶ 52. So,
those claims arose at those times. Under Utah Code section
63G-7-402, then, the Pinders had to file a notice of claim with the
appropriate government official by 2001 for the negligence claim,
the conversion claim, and the Sixth Cause of Action and by 2010
for the civil conspiracy action. But they did not file any notice of
claim whatsoever with Duchesne County until 2011, when they
filed the 2011 Notice of Claim. They thus did not follow the
UGIA‘s notice-of-claim provisions, and the Third District Court
lacked subject matter jurisdiction over those claims.
2. Assistant Attorneys General
¶69 Neither did the Pinders comply with the UGIA before
bringing their negligence claim, conversion claim, the Sixth Cause
of Action, and the civil conspiracy claim against the AAGs. Those
claims all accrued, and thus arose, by at least 2009. Supra ¶ 57. So,
under the UGIA, the Pinders needed to file a notice of claim
within one year—by 2010. The Pinders, however, did not file a
notice of claim with the AAGs until 2016. As a result, they failed
to comply with the UGIA, and the Third District Court lacked
subject matter jurisdiction over the negligence, conversion, and
civil conspiracy claims and over the Sixth Cause of Action.
C. Statute of Limitations
¶70 We now address whether the inverse condemnation
action13 and the Sixth Cause of Action (to the extent that it is a
declaratory relief claim) are barred by the statute of limitations.
__________________________________________________________
13 Here, we need not and do not opine on whether the Pinders
even state a valid claim for relief for inverse condemnation under
article I, section 22 of the Utah Constitution, which prohibits
private property from being ―taken or damaged for public use
without just compensation.‖ They argue that the defendants took
and damaged their property ―for the public use of prosecuting‖
John Pinder. They, however, provide no originalist analysis of the
meaning of ―taken for public use‖ and whether the term includes
the potential use of property as evidence in criminal proceedings.
(continued . . .)
21
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶71 A statute of limitations prescribes the time in which the
plaintiff must bring a cause of action. In this realm, one should not
live by the proverb ―slow and steady wins the race.‖ The statute
of limitations for a cause of action begins to run when ―the cause
of action has accrued.‖ UTAH CODE § 78B-2-102. And if a plaintiff
does not bring the cause of action within the limitations period,
the action is barred. Davis v. Provo City Corp., 2008 UT 59, ¶ 27, 193
P.3d 86. The statute of limitations for both an inverse
condemnation and a declaratory relief action is four years. See
UTAH CODE § 78B-2-307(3) (―An action may be brought within
four years . . . for relief not otherwise provided for by law.‖);
Quick Safe-T Hitch, Inc. v. RSB Sys. L.C., 2000 UT 84, ¶¶ 15, 16, 12
P.3d 577 (applying a four-year statute of limitations to an action
for declaratory judgment); Johnson v. Utah-Idaho Cent. Ry. Co., 249
P. 1036, 1041 (Utah 1926) (applying a four-year statute of
limitations to a takings claim).
1. County Defendants
¶72 The inverse condemnation action and the Sixth Cause of
Action against the County defendants are barred by the statutes of
limitations. The Sixth Cause of Action accrued in 2000, and the
inverse condemnation action accrued by 2009. Supra ¶ 52. So,
unless an exception to the statutes of limitations applies, the Sixth
Cause of Action became barred in 2004 and the inverse
condemnation action became barred in 2013.14
¶73 The Pinders argue that the statute of limitations should
not bar their claims under three theories: the continuing tort
doctrine, the law-of-the-case doctrine, and federal tolling under 28
U.S.C. section 1367(d).15 As discussed below, none of these
We advise any future litigant making similar arguments to
provide an originalist analysis of that phrase.
14 The Third District Court dismissed the Sixth Cause of Action
against the County defendants for lack of subject matter
jurisdiction under the UGIA. It did not dismiss it on statute of
limitations grounds. But we have the ―discretion ‗to affirm [a]
judgment on an alternative ground if it is apparent in the record,‘‖
Olguin v. Anderton, 2019 UT 73, ¶ 20, 456 P.3d 760 (alteration in the
original) (citation omitted), and we do so here.
15 Notably, the Pinders do not argue that the equitable
discovery rule tolled the statute of limitations. One circumstance
in which the equitable discovery rule tolls a statute of limitations
(continued . . .)
22
Cite as: 2020 UT 68
Opinion of the Court
exceptions apply here. The inverse condemnation action and the
declaratory relief action are thus barred by their applicable
statutes of limitations.
(i) Continuing Tort Doctrine
¶74 The Pinders argue that their inverse condemnation
action is not time-barred because the continuing tort doctrine
applies.16 We reject this argument because a single taking does not
fit the mold of a continuing tort.
¶75 The continuing tort doctrine is an exception to the
general rule that ―the statute of limitations begins to run when the
cause of action accrues.‖ Bingham v. Roosevelt City Corp., 2010 UT
37, ¶ 56, 235 P.3d 730 (citation omitted). The exception tolls ―the
statute of limitations while . . . tortious conduct continues
unabated.‖ Id. When deciding whether the continuing tort
doctrine applies, we look only to whether the tortious act is
continuous. See id. ¶ 57. We do not look to whether the ―harm
resulting from the act‖ is continuous. Id (quoting Breiggar Props.,
L.C. v. H.E. Davis & Sons, Inc., 2002 UT 53, ¶ 10, 52 P.3d 1133). A
tort is continuous when ―multiple acts‖ constituting that tort
―have occurred and continue to occur.‖ Id. ¶ 57 (quoting Breiggar
Props., 2002 UT 53, ¶ 11); see also id. ¶ 55 (holding that the
defendant‘s ―ongoing pumping of . . . wells constitute[d] a
continuing tort‖). But a tort is permanent—as opposed to
continuous—if the tortious act or acts ―have ceased to occur.‖ Id.
¶ 57.
¶76 The Pinders argue that the continuing tort doctrine
applies to their inverse condemnation action: ―The defendants
could have, and should have, returned [the Pinders‘] property at
is when a plaintiff does ―not know about the events giving rise to
his claim due to ‗the defendant‘s concealment or misleading
conduct.‘‖ Ockey v. Lehmer, 2008 UT 37, ¶ 36, 189 P.3d 51 (citation
omitted). So, if the defendants made misleading statements that
kept the Pinders in the dark about the events giving rise to their
causes of actions, the Pinders could have argued that the equitable
discovery rule tolled the statutes of limitations. Because they have
not made this argument, we do not consider whether the
equitable discovery rule tolls the statutes of limitations.
16 This argument does not apply to the Sixth Cause of Action;
the Pinders argue only that it applies to their ―right to challenge
the unconstitutional taking or the ongoing deprivation.‖
23
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
any time to abate the harm. Their refusals to abate the harm did
not bar [the Pinders‘] right to challenge the unconstitutional
taking or the ongoing deprivation.‖ We disagree.
¶77 Here, the Pinders do not allege that the defendants have
effected several takings; they allege that the defendants effected a
single taking. And the ongoing deprivation of the property was
just a harm resulting from the alleged single taking. See Ohio
Midland, Inc. v. Ohio Dep’t of Transp., 286 F. App‘x 905, 913 (6th
Cir. 2008) (―If this court were to accept the plaintiffs‘ theory that a
taking is continuous until it is reversed, then all takings would
constitute ‗continuing violations,‘ tolling the statute of limitations.
There would effectively be no statute of limitations, and the
plaintiffs‘ theory could easily be extended to many other
violations outside of the takings context. This is not the law.‖).
The Third District Court thus did not err in holding that the
continuing tort doctrine does not apply here.
(ii) Law-of-the-Case Doctrine
¶78 The Pinders argue that the law-of-the-case doctrine
precludes the defendants from raising a statute of limitations
defense. The law-of-the-case doctrine allows a court to ―decline to
revisit issues within the same case once the court has ruled on
them.‖ McLaughlin v. Schenk, 2013 UT 20, ¶ 22, 299 P.3d 1139
(citation omitted).
¶79 According to the Pinders, the law-of-the-case doctrine
prevents the defendants from relying on a statute of limitations
defense because the defendants unsuccessfully raised that defense
in the Eighth District Action and the Federal Action. But the law-
of-the-case doctrine, as its name implies, applies only to ―issues
within the same case,‖—that is, issues within the Third District
Action. So, what happened in the Eighth District Action and the
Federal Action is irrelevant under the law-of-the-case doctrine.
The Pinders‘ argument under the law-of-the-case doctrine thus
fails.
(iii) Federal Tolling
¶80 The Pinders also argue that their claims are tolled under
a federal statute: 28 U.S.C. section 1367(d). Put simply, section
1367(d) tolls the statute of limitations while state-law claims—
―brought along with federal claims‖ in federal court by virtue of
the federal court‘s supplemental jurisdiction—are pending in
federal court. Artis v. District of Columbia, 138 S. Ct. 594, 597–98
(2018). Section 1367(d) does not apply to the Pinders‘ claims
because, although they brought the Federal Action in 2011, they
24
Cite as: 2020 UT 68
Opinion of the Court
brought no state-law claims there. They asserted only a claim
under 42 U.S.C. section 1983. And because they brought no state
law claims, section 1367(d) does not apply.
2. Assistant Attorneys General
¶81 The inverse condemnation action and the Sixth Cause of
Action against the AAGs are also barred by their statutes of
limitations. These claims accrued by 2009. Supra ¶ 57. And
because the claims accrued by 2009, the statutes of limitations
began to run then as well. As a result, their four-year statutes of
limitations barred them by the time the Pinders filed the Third
District Action in 2015. The Third District Court thus properly
dismissed the inverse-condemnation action and the Sixth Cause of
Action as barred by their statutes of limitations. 17
D. Issues with Preservation or Waiver
¶82 Two of the Pinders‘ arguments on appeal run into issues
with preservation and waiver. First, the Pinders have waived the
argument that the Third District Court erred by holding that the
State and the Attorney General were dismissed unopposed from
the Third District Action. Second, the state due process claim that
the Pinders argue on appeal is unpreserved and the federal due
process claim they asserted below has been waived.
1. The Causes of Action Against the State and the Attorney
General
¶83 We first affirm the district court‘s dismissal of all the
Pinders‘ claims against the State and the Attorney General. The
Third District Court dismissed the claims against the State and the
Attorney General because the Pinders had not opposed the State
defendants‘ motion to dismiss as to them. See supra ¶ 19. Other
than making the naked claim that the Third District Court
―erroneously asserted that [the Pinders] had only opposed the
motion to dismiss as to [the AAGs],‖ the Pinders have not
challenged this ruling on appeal. Any challenge is, as a result,
waived. State v. Johnson, 2017 UT 76, ¶ 17, 416 P.3d 443 (holding
__________________________________________________________
17 We do not address here the Pinders‘ arguments about the
continuing tort doctrine, the law-of-the-case doctrine, and federal
tolling because the Pinders did not raise those arguments below
when opposing the AAGs‘ motion to dismiss. They are thus
unpreserved as to the AAGs. Infra ¶ 85 (discussing the law of
preservation). Even if they were preserved, they would have
failed for the same reasons as we discuss above. Supra ¶¶ 74–80.
25
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
that a party waives an issue by not properly raising it on appeal).
Accordingly, we affirm the Third District Court‘s dismissal of all
the claims against the State and the Attorney General.
2. Due Process
¶84 Invoking article I, section 7 of the Utah Constitution, the
Pinders insist on appeal that the defendants violated their right to
due process. The County defendants counter with the law of
preservation. They say that any state due process claim is
unpreserved for appeal because the Pinders brought a federal—
not a state—due process claim below. We agree. The state due
process claim that the Pinders argue on appeal is unpreserved.
And because the Pinders have not challenged the dismissal of
their federal due process claim on appeal, they have waived that
claim.
¶85 An issue must be preserved for appeal for us to consider
it. Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. ―An issue
is preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
[it].‖ Id. ¶ 12 (alteration in original) (citation omitted) (internal
quotation marks omitted). That means that the issue must (1) be
―specifically raised‖ before the district court, (2) be raised ―in a
timely manner,‖ and (3) be ―supported by evidence and relevant
legal authority.‖ Donjuan v. McDermott, 2011 UT 72, ¶ 20, 266 P.3d
839.
¶86 The Pinders argue on appeal that the defendants
violated their right to due process under article I, section 7 of the
Utah Constitution. The Pinders raised this claim in their amended
complaint: ―[t]he Defendants deprived [the Pinders] of their
property and liberty without due process of law in violation of
Section 7.‖ The Third District Court, however, struck that
paragraph from the amended complaint because it had not been
in the proposed amended complaint. The Pinders have not
challenged that ruling on appeal. They thus did not specifically
raise the state due process claim in a timely manner to the Third
District Court. So, it is unpreserved, and we do not consider it.
¶87 To be sure, the Pinders presented the district court with
the issue of whether the defendants violated their federal right to
due process. Doing so, however, did not give the Third District
Court the opportunity to rule on whether the defendants violated
the Pinders‘ state right to due process. Flowell Elec. Ass’n, Inc. v.
Rhodes Pump, LLC, 2015 UT 87, ¶ 21, 361 P.3d 91 (―We are not
required to follow U.S. constitutional law when we interpret the
Utah Constitution. . . .‖). And the Pinders have not claimed on
26
Cite as: 2020 UT 68
Opinion of the Court
appeal that the defendants violated their federal right to due
process; their appellate briefing focuses only on their state right to
due process. Any challenge to the district court‘s ruling on the
federal due process claim has thus been waived. Johnson, 2017 UT
76, ¶ 17 (―[A] party may have preserved an issue [in the trial
court], but failed to properly raise it on appeal, thus waiving it.‖).
We affirm the Third District Court‘s dismissal of the federal due
process claim.
II. THE FOURTH DISTRICT ACTION
¶88 We next review the Pinders‘ appeal of the Fourth District
Action.18 The Pinders argue that the Fourth District Court erred
by denying them attorney fees under three state statutes and one
federal statute. We disagree with the Pinders and affirm the
Fourth District Court‘s denial. In doing so, we hold that the
Fourth District Court had subject matter jurisdiction over those
requests. Then, we hold that the Fourth District Court did not err
in denying those requests.
A. Subject Matter Jurisdiction
¶89 We asked for supplemental briefing as to whether the
Pinders‘ requests for attorney fees in the Fourth District Action
are subject to the UGIA‘s notice-of-claim provisions. We hold that
they are not.
¶90 Under the UGIA, ―each governmental entity and each
employee of a governmental entity are immune from suit for any
injury that results from the exercise of a governmental function.‖
UTAH CODE § 63G-7-201. An injury includes the ―loss of
property.‖ Id. § 63G-7-102(6).
¶91 But the UGIA waives this immunity ―as to any action
brought to recover, obtain possession of, or quiet title to real or
personal property.‖ Id. § 63G-7-301(2)(a). And when the UGIA
__________________________________________________________
18 On appeal, the Pinders argue that the Fourth District Court
violated the Utah takings provision. See UTAH CONST. art. I, § 22.
Specifically, they maintain that the Fourth District Court‘s ―failure
to order payment of just compensation effectively severed and
deleted the just compensation duty.‖ We take this to mean that
the Pinders believe that they brought an inverse condemnation
action in the Fourth District Court. But that is incorrect. As the
Fourth District Court noted, ―the sole relief sought pursuant to the
Complaint was the return of the property allegedly held by
Defendants.‖
27
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
waives immunity, ―consent to be sued is granted, and liability of
the entity shall be determined as if the entity were a private
person.‖ Id. § 63G-7-202(1)(b).
¶92 Here, the defendants, as governmental entities, would
normally be immune from suit for the Pinders‘ injury—―loss of
property‖—since it resulted from the exercise of a governmental
function. Id. § 63G-7-201(1); id. § 63G-7-102(6). But the UGIA
waives this immunity for the type of action the Pinders brought in
the Fourth District Action—an action to recover personal
property. Id. § 63G-7-301(2)(a).
¶93 Because the UGIA waives immunity here, the Pinders
can sue the defendants as if they ―were a private person.‖ Id.
§ 63G-7-202(1)(b). Private persons are subject to statutes that
authorize attorney fees (such as Utah Code section 78B-5-825), and
so the defendants here would be as well, even though they are
government entities and employees. So, the defendants are not
immune from the Pinders‘ requests for attorney fees.
¶94 Additionally, whether the Pinders complied with the
UGIA‘s notice-of-claim provisions does not matter: the notice-of-
claim provisions do not apply to an action to recover personal
property because such an action is not a ―claim‖ under the
UGIA—i.e., an ―asserted demand for or cause of action for money
or damages.‖ Id. § 63G-7-102(2).
¶95 The Pinders‘ requests for attorney fees are not claims
either and so are not subject to the UGIA notice-of-claim
provisions. Although such requests are arguably ―asserted
demand[s] for . . . money . . . arising . . . under state statutes,‖ id.
§ 63G-7-102(2), the UGIA assumes that a claim must arise before
the action in the district court is filed. See id. § 63G-7-401(2); id.
§ 63G-7-403(2). It does so by requiring a potential plaintiff to ―file
a written notice of claim with the [governmental] entity before
maintaining an action,‖ id. § 63G-7-401(2) (emphasis added), and
to wait until the claim is denied before commencing the action. Id.
§ 63G-7-403. Thus, when a basis for attorney fees arises during the
action itself, the request for attorney fees is not a claim, and the
UGIA‘s notice-of-claim provisions do not apply.
¶96 The Fourth District Court therefore had subject matter
jurisdiction over the requests for attorney fees, no matter whether
the Pinders complied with the UGIA.
B. Attorney Fees
¶97 The Pinders argue that the Fourth District Court erred
by denying them attorney fees. Citing Utah Code sections
28
Cite as: 2020 UT 68
Opinion of the Court
24-4-107(d) and 24-4-110, the Pinders argue that ―Utah statutes,
which express the public policy of the state, provide for payment
of ‗reasonable attorney fees and court costs from the date on
which the seizing agency . . . denied the claim.‘‖ We disagree. The
Pinders ignore our case law, which says that in Utah, we generally
follow the ―traditional American rule that attorney fees cannot be
recovered by a prevailing party unless a statute or contract
authorizes such an award.‖ Gregory & Swapp, PLLC v. Kranendonk,
2018 UT 36, ¶ 47, 424 P.3d 897 (citation omitted) (internal
quotation marks omitted).
¶98 The Pinders also argue in their opening brief that they
are entitled to attorney fees under two statutes: Utah Code section
78B-5-825 (bad faith attorney fees) and 42 U.S.C. section 1988 (civil
rights attorney fees).19 We affirm the Fourth District Court‘s
denial of attorney fees under these statutes.
1. Utah Code Section 78B-5-825: Bad Faith Attorney Fees
¶99 The Pinders next argue that they are entitled to attorney
fees under Utah Code section 78B-5-825 because the defendants
acted in bad faith.
¶100 Under Utah Code section 78B-5-825, the court (with
exceptions) must ―award reasonable attorney fees to a prevailing
party if the court determines that the action or defense to the
action was without merit and not brought or asserted in good
faith.‖ This provision requires the court to find that the claim or
defense is ―(1) without merit, and (2) not brought or asserted in
good faith‖ before awarding attorney fees. In re Discipline of
Sonnenreich, 2004 UT 3, ¶ 46, 86 P.3d 712.
¶101 Whether a claim or defense is ―without merit‖ is a
question of law, which we review for correctness. Id. ¶ 45. ―To
determine whether a claim [or defense] is without merit, we look
to whether it was frivolous or of little weight or importance
having no basis in law or fact.‖ Migliore v. Livingston Fin., LLC,
2015 UT 9, ¶ 31, 347 P.3d 394 (citation omitted).
__________________________________________________________
19 The Pinders argue in their reply brief that they are entitled
to attorney fees under other statutes, too. But because the Pinders
did not raise those arguments in their opening brief, we do not
consider them. See Taylor v. Univ. of Utah, 2020 UT 21, ¶ 50, 466
P.3d 124.
29
PINDER v. DUCHESNE COUNTY SHERIFF
Opinion of the Court
¶102 Whether a claim or defense was ―not brought or asserted
in good faith‖ is a fact-intensive mixed question, which we review
for clear error. See Bresee v. Barton, 2016 UT App 220, ¶ 15, 387
P.3d 536. ―A finding of bad faith requires ‗a factual determination
of a party‘s subjective intent.‘‖ Migliore, 2015 UT 9, ¶ 32 (citation
omitted).
To find that a party acted in bad faith, the court
must conclude that at least one of the following
factors existed: (i) The party lacked an honest belief
in the propriety of the activities in question; (ii) the
party intended to take unconscionable advantage of
others; or (iii) the party intended to or acted with the
knowledge that the activities in question would
hinder, delay, or defraud others.
Id. (citation omitted).
¶103 The Pinders argued below that they were entitled to
attorney fees because the defendants raised their defenses in bad
faith and their defenses were without merit. The district court
disagreed, finding that the defendants did not act in bad faith:
As [the defendants] correctly argue, they were
arguably the prevailing parties in actions before the
Eighth District, the Federal court, and the Tenth
Circuit. In addition, they have received favorable
rulings on several motions before the Third District
Court. It would be inappropriate for this Court to
find that bad faith exists, and warrants the
imposition of attorney fees, in light of these results.
¶104 The Pinders‘ argument on appeal for attorney fees under
Utah Code section 78B-5-825 consists of one paragraph. They first
summarily conclude that the defendants‘ ―resistance to their legal
obligations was without merit.‖ (Footnote omitted.) Then they
urge us to find that the defendants acted in bad faith, alleging that
the defendants ―knew they had no legal authority to act in a
manner inconsistent with Plaintiffs‘ property rights.‖ The Pinders
support this argument by citing an alleged lie told by Sheriff
Boren that one of the seized weapons was an illegal sawed-off
shotgun.
¶105 The Pinders have not met their burden of persuasion on
this argument. Supra ¶ 36 (discussing an appellant‘s burden of
persuasion). First, they did not explain with reasoned analysis
how the defendants‘ defenses in the Fourth District Action was
―without merit.‖ Thus, we have no knowledge of what defenses
30
Cite as: 2020 UT 68
Opinion of the Court
the defendants asserted in the Fourth District Action, if any, and
whether they were without merit. Second, the one shred of
evidence (complete with a record cite) that the Pinders point to for
proof of bad faith is that Sheriff Boren asserted that one of the
weapons was an illegal sawed-off shotgun. But the record shows
that the defendants were willing to hand over the shotgun once
they understood ―the legal basis for [the Pinders‘] claim that the
shotgun was not an illegally modified weapon.‖ Without more,
we cannot hold that the Fourth District Court clearly erred by
concluding that the defendants did not act in bad faith. For that
reason, the Pinders do not merit attorney fees under Utah Code
section 78B-5-825.
2. 42 U.S.C. Section 1988: Civil Rights Attorney Fees
¶106 Last, we affirm the dismissal of the request for attorney
fees under 42 U.S.C. section 1988 because it is without merit.
Section 1988 says, in part, that ―in any action or proceeding to
enforce‖ certain civil rights statutes—including 42 U.S.C.
section 1983—―the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney‘s fee as part of the
costs.‖ 42 U.S.C. § 1988. But, in the Fourth District Action, the
Pinders did not rely on any of the civil rights statutes listed in 42
U.S.C. section 1988. They relied only on Utah Code section
24-3-104. For that reason, 42 U.S.C. section 1988 does not afford
the Pinders attorney fees.
CONCLUSION
¶107 We affirm the Third District Court‘s dismissal of the
Pinders‘ causes of action. We also affirm the Fourth District
Court‘s denial of attorney fees.
31