Velasquez v. Harman-Mont & Theda, Inc.

318 P.3d 1188

751 Utah Adv. Rep. 29

Paul VELASQUEZ, Edward Callison, Carole Callison, Teagan Marie Clark, Aspen Clark, and Jeremy Wright, Plaintiffs and Appellees,

v.HARMAN–MONT & THEDA, INC., Defendant and Appellant.

No. 20120858–CA.

Court of Appeals of Utah.

Jan. 9, 2014.

David L. Bird, Bruce J. Boehm, and Nickolas S. Rice, Salt Lake City, Attorneys for Appellant.

Karra J. Porter, Kristen C. Kiburtz, Jeffrey D. Eisenberg, and Jordan P. Kendell, Salt Lake City, Edward T. Wells, Murray, Attorneys for Appellee, Paul Velasquez.

J. Jordan Christianson, Salt Lake City, and Michael C. Mathie, Attorneys for Appellees Edward Callison, Carole Callison, Teagan Marie Clark, and Aspen Clark; William R. Rawlings and Travis B. Alkire, Draper, Attorneys for Appellee, Jeremy Wright.

Judge CAROLYN B. McHUGH authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.

McHUGH, Judge:

¶ 1 Defendant Harman–Mont & Theda, Inc. (Mont & Theda) appeals from an order entered by the district court on September 25, 2012 (the Memorandum Decision). We affirm the Memorandum Decision to the extent it struck Mont & Theda's motion for summary judgment and we decline to address those portions of the Memorandum Decision that are not ripe for appellate review.

BACKGROUND

¶ 2 Mont & Theda operated a Kentucky Fried Chicken outlet in Spanish Fork, Utah, licensed by Harman Management Corporation (Harman Management). On March 11, 2010, an employee of Mont & Theda (Employee), participated in a training session conducted by Harman Management. Other Kentucky Fried Chicken licensees' employees, including Kristine Velasquez, Donald Callison, and Jeremy Wright, also attended this training session. The session started at one location in Murray, Utah, but included off-site visits to fast-food restaurants in the area. Employee used his father's automobile to drive Velasquez, Wright, and Callison to these restaurants. During the drive from the first fast-food restaurant to the second, Employee reached a light rail crossing. Although the crossing arm was down, Employee drove around it and attempted to cross before the coming train arrived. He was unsuccessful. The resulting crash killed Employee and Callison and seriously injured Velasquez and Wright.

¶ 3 Velasquez, through her parent and guardian, Paul Velasquez, and Wright sued for personal injuries; Callison's heirs brought an action for wrongful death (collectively, Plaintiffs). The plaintiffs each filed suit, seeking damages from Mont & Theda for Employee's actions. Although Mont & Theda raised a number of affirmative defenses in its answers to the plaintiffs' complaints, it did not assert a defense based on the Travel Reduction Act, seeUtah Code Ann. §§ 72–12–101 to –110 (LexisNexis 2009). The cases were later consolidated into the case now before us on interlocutory appeal.

¶ 4 After the close of discovery, Mont & Theda filed a motion for summary judgment raising the Travel Reduction Act as a defense for the first time. ¹ Plaintiffs moved to strike Mont & Theda's motion for summary judgment because it was based on an affirmative defense that had not been pleaded and thus not properly joined and because the defense had been waived. In addition, Plaintiffs opposed the motion for summary judgment on the merits, arguing that the Travel Reduction Act was inapplicable under the present facts and, if applied to bar Plaintiffs' claims, would violate the Utah Constitution.

¶ 5 After oral argument, the district court issued the Memorandum Decision. The district court first addressed Plaintiffs' motion to strike Mont & Theda's motion for summary judgment. The district court concluded that the Travel Reduction Act defense was an affirmative defense that Mont & Theda should have pleaded in its answers. In addition, the district court determined that “what was pled did not put the plaintiffs on notice of the issues raised by [the Travel Reduction Act] defense” and that “it is unfair to allow [Mont & Theda] to raise it now, in the context of a summary judgment motion after discovery has closed.” Accordingly, the district court stated that Plaintiffs' motion to strike “should therefore be granted.”

¶ 6 Next, the district court considered the possibility that Mont & Theda might attempt to remedy the failure to plead the Travel Reduction Act defense by moving to amend its answers. Although the district court expressly reserved judgment on whether such a motion would be granted, it decided to address the merits of the Travel Reduction Act defense. Ultimately, the district court indicated that the Travel Reduction Act “does not apply in the context of this case” and that “Mont & Theda's Motion for Summary Judgment is therefore denied.” ²

¶ 7 In response to the Memorandum Decision, Mont & Theda took two actions. First, it filed a motion to amend its answers to include the Travel Reduction Act defense “in order to ensure that the [Travel Reduction Act] defense is properly preserved for purposes of appeal.” Second, Mont & Theda filed a petition for permission to appeal the interlocutory Memorandum Decision. Before a scheduled hearing on the motion to amend Mont & Theda's answers could be held, a law and motion panel of this court granted Mont & Theda's petition for permission to appeal. Mont & Theda then moved to stay all proceedings pending before the district court, including the hearing on the motion to amend the answers. The district court granted the motion to stay.

¶ 8 Although an initial reading of the Memorandum Decision suggested that the district court issued an appealable ruling on the applicability of the Travel Reduction Act to the facts of this case, further examination revealed ambiguities in the district court's ruling. Plaintiffs drew this issue to our attention in their motion for summary disposition, arguing that the district court's discussion of the Travel Reduction Act was an advisory opinion that was not ripe for appellate review. We deferred ruling on the issues raised by Plaintiffs and Mont & Theda pending plenary presentation and consideration of the issues raised in the motion for summary disposition and in the petition for interlocutory appeal. Following briefing, we also asked the parties to be prepared at oral argument to address the question of whether the petition for interlocutory appeal had been improvidently granted. During oral argument, the parties disagreed as to the meaning of the Memorandum Decision. While Mont & Theda asserted that the district court had denied the motion to strike and denied the summary judgment motion on the merits, Plaintiffs claimed that the district court had granted the motion to strike and also held that the Travel Reduction Act defense had been waived for all purposes. After oral argument, we temporarily remanded this matter to the district court for further explanation of the Memorandum Decision.

¶ 9 On November 18, 2013, the district court issued a Clarification of Memorandum Decision Entered September 25, 2012 (the Clarification Order). The Clarification Order indicates that the district court granted Plaintiffs' motion to strike Mont & Theda's motion for summary judgment because it was based on an affirmative defense that had not been pleaded and because the defense had been waived. The district court also stated that it had not “prejudg[ed] all aspects that would be addressed in deciding a motion to amend” the answers, but decided to share its opinion that such a motion would be denied as futile or, if granted, a “Motion for Summary Judgment based upon the Travel Reduction Act would be denied on the merits for the same reasons that the Motion to Amend would be futile.”

ISSUES AND STANDARDS OF REVIEW

¶ 10 Mont & Theda seeks appellate review of the district court's statement that the Travel Reduction Act is not applicable under the facts of this case, including its reasoning that a plain language interpretation of the Act would lead to an absurd result. In addition, the parties ask us to review whether the application of the Travel Reduction Act as a complete defense to Plaintiffs' claims is constitutional. We review questions of statutory interpretation for correctness, affording no deference to the district court. Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600. Furthermore, we address constitutional challenges to legislation only when we are required to do so. Gardner v. State, 2010 UT 46, ¶ 93, 234 P.3d 1115. However, this court has no power to issue an advisory opinion on an issue that is not yet ripe for decision. See Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582;Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141.

ANALYSIS

I. We Affirm the District Court's Order Striking Mont & Theda's Motion for Summary Judgment Because Mont & Theda Does Not Challenge It on Appeal.

¶ 11 Mont & Theda focuses its appeal on the applicability of the Travel Reduction Act to the facts of this case. Mont & Theda argues that, as a matter of law, it cannot be held vicariously liable for the acts of Employee because he was engaged in a “ride-sharing arrangement” as defined by the Act. SeeUtah Code Ann. § 72–12–106(1) (LexisNexis 2009).³ However, Mont & Theda does not challenge the merits of the district court's ruling striking the motion for summary judgment, arguing instead that the motion to strike was never granted and that the district court considered the summary judgment motion and denied it on the merits. Accordingly, Mont & Theda does not effectively challenge the district court's decision on this point.

¶ 12 Because Mont & Theda first raised a defense based on the Travel Reduction Act in its motion for summary judgment, Plaintiffs moved to strike the summary judgment motion. The district court granted the motion to strike both because the Travel Reduction Act was an affirmative defense that had not been pleaded and thus was not properly joined, and because Mont &...