October 18, 2013 Utah Supreme Court Case Summaries

Sewell v. Express Lube, 2013 UT 61, No. 20120445 (October 18, 2013)

ISSUES: Jurisdiction, Service of Process on a Sole Proprietorship, Rule 60(b), Damages After Default

Justice Parrish,

Xpress Lube appeals from the district court’s order denying its motion to set aside a default judgment in favor of Larry Sewell. . . .

At ¶ 1.

A process server left copies of the summons and complaint with an Xpress Lube employee. Anderson found the summons and complaint several days later and immediately sent them to his insurance agent. The agent attempted to fax the complaint to Travelers, but apparently misdialed the fax number and Travelers never received it.

At ¶ 2.

The Court outlines the factual and procedural background of this case.

At ¶¶ 2-14.

Jurisdiction

Utah Rule of Civil Procedure 60(b)(4) provides that “the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding . . . [when] the judgment is void.” “A judgment is void under rule 60(b)(4) if the court that rendered it lacked jurisdiction of the subject matter, or parties or the judgment was entered without the notice required by due process.” Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 18, 270 P.3d 456 (internal quotation marks omitted). This is true “even absent a separate meritorious defense. The court’s lack of jurisdiction is alone sufficient to void its judgment.” Id. ¶ 15 (footnote omitted). “A motion under rule 60(b)(4) . . . could succeed on the basis of a mere showing that the judgment was void because of some defect in the court’s authority over the case or the parties.” Id. ¶ 16. Therefore, “[i]f a judgment is entered by a court that lacks jurisdiction, justice is furthered by setting that judgment aside as void under rule 60(b)(4).” Id. ¶ 15.

At ¶ 16.

Xpress Lube argues that the judgment is void. Specifically, it argues that the process server’s decision to simply leave copies of the summons and complaint with Deuel, a mere employee of Xpress Lube, did not constitute proper service under rule 4 of the Utah Rules of Civil Procedure. Sewell disagrees. He argues that the “only thing that matters is that the employee in question was completely responsible for all of Appellant’s operations and assets, thus satisfying [r]ule 4’s requirements for service upon a ‘person in charge.’” 

At ¶ 19.

Sewell’s argument is misplaced because it relies on the wrong subsection of rule 4. Sewell relies on rule 4(d)(1)(E), which states that service on a corporation, partnership, or unincorporated association subject to suit under a common name shall be made “by delivering a copy of the summons and the complaint to an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process.” But Xpress Lube is not a corporation, partnership, or unincorporated association. Rather, it is a sole proprietorship of Anderson. Thus, rule 4(d)(1)(E) does not apply.

At ¶ 20.

The defendant named in Sewell’s complaint is “Xpress Lube, a Utah business entity.” Anderson is the sole proprietor of Xpress Lube. Because “[a] proprietorship has no formal legal existence . . .[t]he proper defendant in such a circumstance is the individual owner of the business.” JAMES J. BROWN, JUDGMENT ENFORCEMENT § 11.03 (3d ed. 2009). See also Bonneville Billing & Collection v. Johnston, 1999 UT 92, ¶ 4, 987 P.2d 600 (finding service proper where an individual doing business as J.C. Johnson Company was served at his residence). Thus, to serve a sole proprietorship, the sole proprietor must be served under rule 4(d)(1)(A)

At ¶ 21.

While we acknowledge that Anderson became aware of the lawsuit when he found copies of the summons and complaint on his desk, that knowledge does not substitute for proper service. . . .

At ¶ 23.

The district court lacked jurisdiction to enter the default judgment. To serve a sole proprietorship, the sole proprietor must be served. That did not happen in this case. As a result, the default judgment is void under rule 60(b)(4) of the Utah Rules of Civil Procedure.

At ¶ 25.

Rule 60(b)

[Alternatively, u]nder rule 60(b)(1), “the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” We have stated that “a movant is entitled to have a default judgment set aside under 60(b) if (1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense.” Menzies v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480. We consider each of these requirements in turn.

At ¶ 27.

A motion to set aside a default judgment under subsection (1) is timely if it is made “within a reasonable time and . . . not more than  months after the judgment . . . was entered.” UTAH R. CIV. P. 60(b). There is no dispute that Anderson’s motion was timely. . . 

At ¶ 28.

Rule 60(b)(1) provides for relief from a default judgment entered as a result of mistake, inadvertence, surprise, or excusable neglect. To qualify for relief under rule 60(b)(1), a party must show he has used due diligence. Due diligence is established where the “failure to act was the result of . . . the neglect one would expect from a reasonably prudent person under similar circumstances.” Judson v. Wheeler RV Las Vegas, L.L.C., 2012 UT 6, ¶ 27, 270 P.3d 456 (internal quotation marks omitted). We conclude Xpress Lube also satisfies this prong of the test.

At ¶ 29.

The Court outlines the facts supporting the conclusion that there is a basis for relief, i.e. mistake, inadvertence, surprise, or excusable neglect.

At ¶¶ 30-32.

Having found that there is a basis for granting relief under rule 60(b)(1), we now move to the third part of the test, which requires us to consider whether Anderson has alleged a meritorious defense. “The assertion of a meritorious defense under rule 60(b) requires only a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the claimant or counterclaimant.” Judson, 2012 UT 6, ¶ 23 (internal quotation marks omitted). This requires “that a party state the basis for its claims or defenses in short and plain terms.” Id. (internal quotation marks omitted). “The purpose of the meritorious defense rule is to prevent the necessity of judicial review of questions which, on the face of the pleadings, are frivolous.” Lund v. Brown, 2000 UT 75, ¶ 28, 11 P.3d 277 (internal quotation marks omitted). “Thus, where a party presents a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery by the claimant or counterclaimant, it has adequately shown a nonfrivolous and meritorious defense for the purposes of its motion to set aside a default judgment.” Id. ¶ 29.

At ¶ 33.

Here, Xpress Lube has alleged several meritorious defenses.  [The Court outlines the alleged defenses].

At ¶ 34.

Damages

Xpress Lube alternatively argues that the district court “abused its discretion by entering a default judgment in the amount of $600,000 without any hearing or notice of any hearing on damages.” Sewell counters that an evidentiary hearing was not required because damages are “sufficiently defined.” We agree with Xpress Lube.

At ¶ 35.

Under rule 55(b)(2) of the Utah Rules of Civil Procedure, in a default proceeding, “the court may conduct such hearings or order such references as it deems necessary and proper” if “it is necessary to take an account or to determine the amount of damages.” “As a general rule, a default judgment establishes, as a matter of law, that defendants are liable to plaintiff as to each cause of action alleged in the complaint.” Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 965 (Utah Ct. App. 1989) (internal quotation marks omitted). But “it is still incumbent upon the non-defaulting party to establish by competent evidence the amount of recoverable damages and costs he claims.” Id. “[E]ven defaulting defendants should usually be afforded an evidentiary hearing whenever the amount owed is unliquidated under rule 55(b)(2).” Cadlerock Joint Venture II, LP v. Envelope Packaging of Utah, Inc., 2011 UT App 98, ¶ 10, 251 P.3d 837.

At ¶ 36.

Although the language of rule 55(b)(2) appears to be permissive by stating that the court may conduct a hearing on damages, a district court does not have discretion to avoid a hearing when the damages are unliquidated, regardless of the allegations in the complaint. Liquidated damages are those that can be precisely determined. In such cases, an evidentiary hearing is not always required. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App. 2001). . . . But where the damage claim is for other than a sum certain, the district court has an “obligation under rule 55(b)(2) to conduct such hearings and take such evidence as it deems advisable for determining the damages.” Cadlerock Joint Venture II, LP, 2011 UT App 98, ¶ 11 (internal quotation marks omitted).

At ¶ 37.

Here, Sewell did not request and the district court did not hold a hearing on damages. Instead, the district court simply entered judgment for the full $600,000 in unliquidated damages prayed for in Sewell’s complaint. In failing to hold such a hearing, the district court abused its discretion.

At ¶ 40.

Weber Co. v. Ogden Trece, 2013 UT 62, No. 20120852 (October 18, 2013)

ISSUES: Right to Appeal, Service of Process on an Unincorporated Association, Service by Publication

Justice Parrish,

We are presented with two consolidated cases. The first is a direct appeal (Appeal) from an injunction entered against Ogden Trece (Trece), a criminal street gang. The second is a petition for extraordinary writ (Petition) brought by three alleged Trece members who were served with the injunction.

At ¶ 1.

The Court provides the factual and procedural backgound of this case.  Most importantly, Weber County’s Complaint seeking an Injunction against the street gang Ogden Trece’s illegal activities; Weber County’s method of service of process on the gang, including by publication; and the trial court’s temporary retraining order, preliminary injunction, and ultimately permanent injunction against Ogden Trece gang members.

At ¶¶ 2-20.

The Court dismisses the direct appeal because the appellants were not parties to the litigation at the trial level.

At ¶¶ 23-28.

The Court holds that it has jurisdiction to consider the Extraordinary writ.

At ¶ 29.

Is Ogden Trece Subject to Suit as an unicorporated association?

We first turn to Petitioners’ argument that Trece is not subject to suit as an unincorporated association because “a fundamental requirement of an unincorporated association is that it be formed for a lawful purpose.” . . .

At ¶ 30.

Rule 17(d) of the Utah Rules of Civil Procedure provides that “[w]hen two or more persons associated in any business . . . not a corporation, transact such business under a common name, . . . they may sue or be sued by such common name.” See also Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1391–92 (Utah 1996). Neither the rule nor any other provision of Utah law contains any requirement that unincorporated associations be engaged in lawful activity before they are amenable to suit. Thus, Trece is amenable to suit as an unincorporated association so long as it transacts business under a common name. Id. at 1392.

At ¶ 33.

Petitioners argue that “there is no evidence in the record of Trece transacting business” and that the County conceded that “Ogden Trece exists only as a criminal organization.” They contend that criminal organizations do not “transact business” but rather commit crimes. We disagree. There is no logical reason why business transactions and criminal activity are mutually exclusive.

At ¶ 34.

Utilizing the definition of “Business,” and the evidence before the trial court, the Court finds that there is sufficient evidence to support the conclusion that a street gang “transacts business.”

At ¶¶ 35-37.

This evidence satisfies the requirement of rule 17(d) and there is no need for us to depart from the plain meaning of the rule. See Savage, 2004 UT 102, ¶ 18. There is no reason why an unincorporated association should be immune from suit simply because the business in which it engages is unlawful. Under Petitioners’ proposed interpretation of the rule, a criminal organization would be immune from suit simply because the business it transacts is illegal. But it would be illogical to interpret rule 17(d) in a manner that allows organizations that operate illegally to escape suit when such organizations are exactly the kind of enterprise on which the justice system should be brought to bear.

At ¶ 38.

We also conclude that Trece meets the second requirement of rule 17(d) in that it operates under a common name. The district court found that “Ogden Trece has, as a group, an identifying name or identifying symbol or both.” Additionally, “Trece has identifiable hand signs, gestures, and clothing . . . that distinguishes [it] from other criminal street gangs.” Trece members are required to “put in work,” meaning committing the type of criminal transactions listed above “to bring recognition and money into the gang.” And these findings were amply supported by evidence that was admitted during the evidentiary hearing.

At ¶ 39.

The Court summarizes other evidence that supports its conclusion that Ogdcen Trece operated under a common name.

At ¶¶ 40-41.

Based on the foregoing, we have no difficulty concluding that Trece transacted its business under a “common name” under rule 17(d). Because Trece (1) transacts business (2) under a common name, it is an unincorporated association amenable to suit.

At ¶ 42.

Service of Process

Having concluded that Trece qualifies as an unincorporated association subject to suit, we now examine whether Trece was properly served with process. Petitioners argue that Trece was not properly served because rule 4(d)(1)(E) requires that service on unincorporated associations be made upon “an officer, a managing or general agent, or other agent authorized by appointment or by law to receive service of process” and that no such managing agent of Trece was served. UTAH R. CIV. P. 4(d)(1)(E). The County responds that Trece was properly served by publication under rule 4(d)(4)(A) because the identities of Trece’s managing agents were unknown.

At ¶ 43.

The Court states that “[s]ervice on a street gang like Trece is possible under rule 4(d)(1)(E) by delivering a copy of the summons and complaint to the functional equivalent of an officer or managing or general agent of the gang.” However, because the County never argued that Trece’s “shot callers” were the functional equivalent of an officer or managing or general agent of the gang, and service on mere members of an unincorporated association is inadequate under rule 4 to effectuate service on the organization, there was no valid service on Trece under rule 4(d)(1)(E).

 

At ¶ 46-47.

The second possible method of serving an unincorporated association such as Trece is provided by rule 4(d)(4). It states that “[w]here the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence . . . the party seeking service of process may file a motion supported by affidavit requesting an order allowing service by publication.” UTAH R. CIV. P. 4(d)(4)(A). Therefore, if the County were unable to identify an officer or a managing or general agent of the gang after exercising reasonable diligence in attempting to do so, the court could order service on the gang through publication.

At ¶ 48.

The County argues that service on Trece by publication was valid because the identity of the functional equivalent of an agent or officer was unknown. But the rule requires more. The party seeking to effectuate service through publication must exercise reasonable diligence in attempting to identify and then personally serve an officer or managing or general agent or his equivalent.

At ¶ 49.

The Court concludes that Weber County’s Motions for service by publication did not satisfy the prerequisite showing that they had conducted reasonable diligence in attempting to identify and personally serve Ogden Trece’s equivalent of an officer, manager, or general agent.  Specifically noting that Weber County’s “bald assertion” that Ogden Trece has no known management structure is contradicted by the trial testimony, that the County did not explain why it was unable to identify or locate the functional equivalent of an officer or a managing or general agent, even though it has an extensive gang database with information on 485 active gang members.

At ¶¶ 52-58.

The County argues that service by publication was necessary because there are 485 known gang members and personal service on all members would be impracticable. This argument misapprehends the controlling law, however, since rule 4(d) requires a showing that it would be impracticable to personally serve an officer or a managing or general agent. Nothing in the rule requires personal service on all 485 individual members of the gang. And the County’s explanation of its personal service on five members is similarly uninformative since its service on five individual gang members sheds no light on the County’s diligence in attempting to identify and serve an officer or managing or general agent.

At ¶ 59.

Because the County did not serve any of Trece’s officers or managing or general agents or their functional equivalent and did not establish a sufficient factual basis for service by publication under rule 4, Trece was not properly served. And Trece was the only defendant named in the lawsuit. Because the district court lacked jurisdiction over the only named defendant, the Injunction is void.

At ¶ 60.

The Court declines to award attorneys fees.

At ¶¶ 61-63.

Gressman v. State, 2013 UT 63, No. 20110965 (October 18, 2013)

ISSUES: Post Conviction Relief, Factual Innocence, Retroactive Application of a Statute, Survivability of PCRA Claims, Res Judicata, Pre-Judgment Interest for PCRA Claims

Justice Durham,

The State appeals from the district court’s order posthumously declaring Jed Gressman factually innocent of the crimes he was convicted of in 1993 and awarding his widow financial assistance payments under the Post-Conviction Remedies Act (PCRA). The State argues the district court erred by (1) finding that Mr. Gressman’s claims under the PCRA survived his death; (2) determining Mr. Gressman to be factually innocent as a matter of law based on the prior vacatur of his conviction; and (3) awarding prejudgment interest on the financial assistance payments.

At ¶ 1.

We find that Mr. Gressman’s PCRA claims did not abate upon his death and that the district court properly substituted his widow as the plaintiff in this suit. The district court erred, however, when it found that the vacatur of Mr. Gressman’s conviction conclusively established his factual innocence, as defined by the PCRA. Finally, we hold that the version of the PCRA relevant to this case does not permit the district court to award prejudgment interest. We therefore reverse for further proceedings consistent with this opinion.

At ¶ 2.

The Court outlines the factual background of this case.  Most importantly that after Mr. Gressman had served thirty-nine months of his sentence for sexual assault, he and the Juab County Attorney jointly moved the district court to dismiss all charges against him based on newly-discovered evidence.  Most importantly, more advanced DNA testing established that semen recovered from the victim did not come from Mr. Gressman.  Reasoning that this newly-discovered evidence would have materially influenced the jury’s deliberations, the district court vacated Mr. Gressman’s conviction and granted him a new trial. The State chose not to file new charges against Mr. Gressman, and no

trial occurred.  In 2009 Mr. Gressman filed a Petition for Post Conviction Relief seeking a determination of factual innocence, but dies before conclusion of the suit.  His widow was substituted in his place and obtained summary judgment based solely on the court’s previous ruling vacating the conviction. The district court awarded Mr. Gressman’s widow PCRA assistance payments—including prejudgment interest.

At ¶¶ 3-5.

PCRA Claims Survive Death

At common law, personal tort actions abate upon the death of either the claimant or the tortfeasor, while tort claims for property damage or conversion survive. . . .

At ¶ 7.

The Court concludes that at common law, Petitioner’s PCRA claim would not survive his death because it is a personal tort action, not a claim for property damage or conversion.

At ¶¶ 8-9.

Because Mr. Gressman’s claims would abate upon his death under the common law, his suit may only survive under the aegis of a statutory provision. We therefore examine whether the PCRA or Utah’s general survival statute operate to preserve Mr. Gressman’s claims.

At ¶ 10.

The Court holds that the Pre 2012 amendment of the PCRA applies in this case.

At ¶¶ 12-20.

The Utah Code articulates a general presumption against retroactivity. UTAH CODE § 68-3-3. By statute, “‘a provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.’” State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829 (quoting UTAH CODE § 68-3-3). In this case, there is no expression of retroactivity in the 2012 amendments, and no other basis for applying the amended provisions exists. Accordingly, we find the preamendment version of the statute controls.

At ¶ 12.

Under our case law, “the parties’ substantive rights and liabilities are determined by the law in place at the time when a cause of action arises,” while their procedural rights and responsibilities are governed by “the law in effect at the time of the procedural act” at issue. Id. ¶¶ 12, 14 (internal quotation marks omitted). Thus, if survivability is a matter of substance, then that question is governed by the law in place when Mr. Gressman’s claim arose. If it is a procedural matter, on the other hand, then subsequent enactments (like the 2012 amendments) could be deemed to apply.

At ¶ 13.

We view the 2012 amendments in question as clearly substantive. The amended provisions foreclose postjudgment interest for financial assistance payments and cut off such payments altogether after the death of the defendant-petitioner. See UTAH CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge, eliminate, or destroy vested or contractual rights” and do not merely dictate “the practice and procedure or the legal machinery by which the substantive law is determined or made effective.” Brown & Root Indus. Serv. v. Indus. Comm’n of Utah, 947 P.2d 671, 675 (Utah 1997) (internal quotation marks omitted). We therefore hold that Mr. Gressman’s petition is governed by the law in effect in 2008, not by the 2012 amendments enacted during the pendency of this action.

At ¶ 14.

The applicable version of the PCRA does not speak to survivability. As the State notes, the statute does contemplate a claimant “who has been convicted of a felony offense” petitioning the court “for a hearing to establish that the person is factually innocent of the crime or crimes of which the person was convicted.” See UTAH CODE § 78B-9-402(2)(a) (2008). And the statutory remedies—financial assistance payments, expungement, an innocence letter, and access to certain services and programs—are aimed at the wrongfully convicted person. See id. § 78B-9-405(1)(a), (6), (7) (2008). But those provisions answer only the threshold question of who the primary claimant is; they say nothing of significance on the secondary question of whether such claimant’s interests survive death and may be asserted by a representative. On its face, then, the PCRA seems not to speak to the question of survivability.

At ¶ 21.

. . . Absent some specific provision for survivability in the PCRA, we cannot rely on general references to other claims that do survive death to import the same principle into the PCRA. We accordingly find no basis in the PCRA—or in its legislative history—to support a holding for survivability.

At ¶ 22.

Because the PCRA does not address the survival of Mr. Gressman’s claims, we examine Utah’s general survival statute to determine whether it supplants the common law rule of abatement in this case. We find that it does.

At ¶ 23.

. . . Utah’s survival statute provides that “[a] cause of action arising out of personal injury to a person . . . does not abate upon the death of the wrongdoer or the injured person.” UTAH CODE § 78B-3-107(1)(a). In determining whether a statutory claim under the PCRA constitutes a cause of action for “personal injury to a person,” we look to analogous common law claims. . . . [T]he closest common law analogs to Mr. Gressman’s statutory factual innocence claim are false imprisonment and malicious prosecution. Supra ¶ 9. 

At ¶ 24.

The Court analyzes court precident from other jurisdictions establishing that causes of action for false imprisonment and malicious prosecution are actions “arising out of personal injury . . . .”

At ¶¶ 25-27.

Because common law analogs to a factual innocence claim under the PCRA are commonly included in the definition of actions for “personal injury” or “injury to the person” under survival statutes, and because a similar federal statutory claim has been defined as a personal injury action for the purposes of statutes of limitations, Mr. Gressman’s statutory claim survives because it is an action for “personal injury to a person.” See UTAH CODE § 78B-3-107(1)(a).

At ¶ 28.

The Court explains why it disagrees with the dissent concerning the survivability of Petitioner’s PCRA claim.

At ¶¶ 29-35.

Factual Innocence

The district court granted summary judgment in favor of Mr. Gressman’s widow based upon its finding that the 1996 vacatur of his aggravated sexual assault conviction was effectively a determination that Mr. Gressman was factually innocent. In essence, the district court ruled that the 1996 order vacating Mr. Gressman’s conviction collaterally estopped the State from contesting his claim of innocence. We hold that the district court erred because the 1996 order did not conclusively establish Mr. Gressman’s factual - innocence, as defined by the PCRA.

At ¶ 36. 

“The doctrine of res judicata embraces two distinct theories: claim preclusion and issue preclusion.” Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842. “Issue preclusion, which is also known as collateral estoppel, prevents parties or their privies from relitigating facts and issues in the second suit that were fully litigated in the first suit.” Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 28, 194 P.3d 956 (internal quotation marks omitted). Issue preclusion applies only if four elements are satisfied:

(i) the party against whom issue preclusion is asserted was a party to or in privity with a party to the prior adjudication; (ii) the issue decided in the prior adjudication was identical to the one presented in the instant action; (iii) the issue in the first action was completely, fully, and fairly litigated; and (iv) the first suit resulted in a final judgment on the merits.

Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 23, 285 P.3d 1157 (internal quotation marks omitted).

At ¶ 37.

The second element of issue preclusion is not met here because the issue decided by the 1996 order—whether to vacate Mr. Gressman’s conviction and grant a new trial based upon newly discovered evidence—is not identical to the issue presented in the instant action under the PCRA—whether Mr. Gressman is factually innocent of aggravated sexual assault. . . .

At ¶ 38.

The district court’s 1996 finding that a new trial was warranted is not equivalent to a finding of factual innocence because these two findings involve very different legal standards and resolve different issues. The grant of a new trial under the civil standard applied by the district court in 1996 requires only a finding of a reasonable likelihood that the defendant could have obtained a different result at trial if the newly discovered evidence had been available, while a factual innocence claim requires a convicted individual to affirmatively prove innocence by clear and convincing evidence. In other words, the former is finding that the State might not have carried its burden to prove guilt beyond a reasonable doubt, whereas the latter is a finding that the convicted individual actually carried the burden of proving innocence by clear and convincing evidence. Because the question of whether to grant a new trial necessarily evaluates the State’s burden to prove guilt, while the question of whether an individual is factually innocent involves the convicted individual’s burden to prove innocence, the issue resolved in the 1996 vacatur proceeding is not identical to the question of factual innocence at issue in the present action.

At ¶ 41.

Because the issue resolved by the district court in 1996 when it vacated Mr. Gressman’s conviction and ordered a new trial is not identical to the issue before the court in the current action under the PCRA, the district court erred by finding that the 1996 order conclusively established Mr. Gressman’s factual innocence.

At ¶ 43.

The Court rejects Petitioner’s alternative grounds for affirming the trial court’s summary judgment ruling.  Specifically, (1) the State did preserve the issue for appeal, (2) there is no requirement to marshal the evidence on purely legal evaluations, and (3) there is adequate information in the record to manifest a dispute of material fact.

At ¶¶ 44-49.

Pre-Judgment Interest

The version of the PCRA that was in effect when Mr. Gressman’s factual innocence claim arose provides for assistance payments to an individual determined to be factually innocent in the amount of “the monetary equivalent of the average annual nonagricultural payroll wage in Utah . . . at the time of the petitioner’s release from prison” for the amount of time the petitioner was incarcerated. UTAH CODE § 78B-9-405(1)(a) (2008). This version of the PCRA does not provide for an award of prejudgment interest on this amount.

At ¶ 51.

We have previously held that prejudgment interest may not be awarded where a “statute fixes a penalty or determines the damages to be allowed.” Fell v. Union Pac. Ry. Co., 88 P. 1003, 1006 (Utah 1907). Thus, where a statute fixes the damages to be awarded, the statutory amount is deemed to be the full compensation allowed by the legislature, and prejudgment interest may not be added unless provided for in the statute. Indeed, the relevant version of the PCRA confirms that the legislature did not contemplate compensation in addition to the amount specifically provided by the statute: “Payments pursuant to this part constitute a full and conclusive resolution of the petitioner’s claims on the specific issue of factual innocence.” UTAH CODE § 78B-9-405(8) (2008).

At ¶ 52.

Therefore, if assistance payments are ultimately awarded in this case, we hold that prejudgment interest may not be awarded.

At ¶ 53.

Justice Lee, dissenting,

I agree with the court’s construction of the Post-Conviction Remedies Act, and concur in its determination that Gressman’s claims are not subject to survival under that statute. I respectfully disagree with its construction of the general survival statute, however. I read that provision, Utah Code section 78B-3-107(1)(a), to apply only to claims for “personal injury to a person” in the sense of physical injury to a plaintiff’s body. That is the only construction that ascribes independent meaning to the qualifying language, “to a person.” It is accordingly the one I would attribute to the legislature. And since Gressman’s claim is not of that nature, I would conclude that the claim abated on his death.

At ¶ 55.

Justice Lee explains.

At ¶¶ 56-73.