                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2016 UT 23


                                    IN THE
       SUPREME COURT OF THE STATE OF UTAH

                         KRISTEN RENE SIMLER,
                              Appellant,
                                  v.
                            MARCELL CHILEL,
                               Appellee.

                              No. 20140513
                            Filed June 1, 2016

                 On Appeal of Interlocutory Order

                      Third District, Salt Lake
                  The Honorable Paul G. Maughan
                          No. 148900028

                                 Attorneys:
               Paul M. Belnap, Nicholas E. Dudoich,
                    Salt Lake City, for appellant
                Ronald E. Dalby, John P. Lowrance,
                   Salt Lake City, for appellee

    JUSTICE DURHAM authored the opinion of the Court in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
            JUSTICE HIMONAS, and JUSTICE PEARCE joined.

   JUSTICE DURHAM, opinion of the Court:
                           INTRODUCTION
    ¶1     Marcell Chilel unsuccessfully sued Kristen Simler in small
claims court for physical injuries arising from an alleged automobile
collision between the parties. Ms. Chilel then appealed the small
claims decision to the district court, and Ms. Simler filed an answer,
jury demand, and pretrial discovery requests. Ms. Chilel moved to
strike Ms. Simler’s jury demand and discovery requests, and the
district court granted that motion. Thereafter, Ms. Simler filed a
petition for permission to appeal the district court’s order, claiming
that (1) Utah Code section 78B-1-104(4) unconstitutionally denies her
                          SIMLER v. CHILEL
                         Opinion of the Court
right to a jury trial, and (2) rule 6(a) of the Utah Rules of Small
Claims Procedure unconstitutionally denies her right to discovery.
We granted the petition for interlocutory review.
   ¶2      We conclude that the Utah Constitution guarantees the
right to a jury trial in small claims cases in a trial de novo in district
court, and that Ms. Simler properly asserted that right. We do not
reach the merits of Ms. Simler’s discovery arguments as they were
not properly preserved below. We therefore affirm in part and
reverse in part.
                           BACKGROUND
    ¶3      The parties were allegedly involved in an automobile
collision in October 2012 in Salt Lake City, Utah. Ms. Chilel asserted
that she suffered physical injuries resulting from the alleged
collision, for which she received medical treatment. Ms. Chilel filed a
small claims suit against Ms. Simler in the Salt Lake Justice Court,
claiming general and special damages totaling $10,000.
    ¶4    The small claims trial took place on March 27, 2014, in the
Salt Lake Justice Court. Both parties were present and represented
by counsel, and each party presented testimony and evidence.
Ms. Chilel testified, among other things, that she had been involved
in at least two other automobile accidents in close temporal
proximity—one ten days prior to the alleged accident at issue, and
another about three months later, in January 2013. Ms. Chilel
claimed that she sustained similar physical injuries in all three
accidents. Another witness at the small claims hearing—an
insurance claims representative for Ms. Simler’s insurer—stated that
according to the insurance claims database, Ms. Chilel was involved
in a fourth accident in March 2013, for which she also claimed
similar physical injuries.
    ¶5    Despite requests from Ms. Simler’s insurer for
authorizations to obtain additional medical documentation, at the
small claims trial Ms. Chilel and her counsel presented medical
documentation only for the period between the alleged accident at
issue (Ms. Chilel’s second accident) and the third accident in January
2013—a three-month period of time. The pro tempore small claims
judge ultimately entered a judgment of “No Cause of Action.”
   ¶6     Ms. Chilel filed a notice of appeal of the judgment and
requested a trial de novo in the Third District Court. Ms. Simler filed
an answer, which also included a motion for a jury trial and jury
demand. Ms. Simler paid the appropriate statutory jury demand fee.
Additionally, Ms. Simler served on Ms. Chilel one interrogatory and
one request for production of documents.

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                         Opinion of the Court

   ¶7     Ms. Chilel filed a motion to strike Ms. Simler’s answer,
jury demand, and the discovery requests based in part on rule 6(a) of
the Utah Rules of Small Claims Procedure and Utah Code section
78B-1-104(4). The district court granted Ms. Chilel’s motion, holding
that Ms. Simler’s answer, jury demand, and discovery requests were
“procedurally improper under the framework of the Utah Rules of
Small Claims Procedure.”
    ¶8     Ms. Simler filed a petition for permission to appeal the
district court’s order, and we granted interlocutory review.
Ms. Simler claims first that Utah Code section 78B-1-104(4)
unconstitutionally denies her the right to a jury in a trial de novo,
because article I section 10 of the Utah Constitution guarantees that
right. Second, Ms. Simler claims that rule 6(a) of the Utah Rules of
Small Claims Procedure unconstitutionally denies her the right to
serve pretrial discovery requests, as it violates the constitutional
rights to open courts, uniform operation of laws, and due process.
We have jurisdiction under Utah Code section 78A-3-102(3)(j).
                      STANDARD OF REVIEW
    ¶9     Questions of law—whether constitutional or statutory—
are reviewed for correctness. Injured Workers Ass’n v. State, 2016 UT
21, ¶ 12, ---P.3d---; Manzanares v. Byington (In re Adoption of Baby B.),
2012 UT 35, ¶ 23, 308 P.3d 382. In addition, “[t]he district court’s
interpretations of . . . rules of procedure are questions of law
reviewed for correctness.” In re Irrevocable Jack W. Kunkler Tr. A., 2011
UT 7, ¶ 13, 246 P.3d 1184.
                              ANALYSIS
    ¶10 Article 1, section 10 of the Utah Constitution provides that
“[a] jury in civil cases shall be waived unless demanded.” We have
held that article I, section 10 “guarantees ‘the right of jury trial in
civil cases.’” Jones v. Mackey Price Thompson & Ostler, 2015 UT 60,
¶ 43, 355 P.3d 1000 (citation omitted). We have not previously had
the opportunity to analyze whether this right extends to small claims
cases. See Kawamoto v. Fratto, 2000 UT 6, ¶ 7, 994 P.2d 187 (“[T]he
issue of the right to a jury trial in small claims court may have
constitutional dimensions that we would have to address in a case in
which the issue was properly preserved.”). 1


   1 Ms. Simler does not claim that there is a constitutional right to a
jury in the initial small claims trial in Justice Court. We therefore
limit the reach of this opinion to the right to a jury at the trial de
novo stage in district court.
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                          Opinion of the Court
   ¶11 We do not reach Ms. Simler’s arguments that the
preclusion of pretrial discovery in small claims cases at the trial de
novo stage violates her constitutional rights to due process, uniform
operation of laws, and open courts, because Ms. Simler did not
adequately preserve these claims below.
I. THE UTAH CONSTITUTION GUARANTEES THE RIGHT TO A
      JURY TRIAL IN A SMALL CLAIMS TRIAL DE NOVO
    ¶12 Utah Code section 78A-8-102(1) classifies small claims
actions as “civil” in nature. While we have held that the right to a
jury trial in civil cases is guaranteed by the Utah Constitution, we
clarified in Zions First National Bank v. Rocky Mountain Irrigation, Inc.
that “this constitutional right to a jury trial . . . extends only to cases
that would have been cognizable at law at the time the constitution
was adopted.” 795 P.2d 658, 661 (Utah 1990); see also Jones v. Mackey
Price Thompson & Ostler, 2015 UT 60, ¶ 43, 355 P.3d 1000.
   ¶13 We conclude that small claims cases were cognizable at
law at the time of the adoption of the Utah Constitution and the right
to a jury trial does exist in small claims cases at the trial de novo
stage. We also conclude that Ms. Simler properly sought to avail
herself of her right to a jury trial when she filed and served her jury
demand and paid the required statutory fee in the district court, and
that she preserved this issue in her memorandum in opposition to
Ms. Chilel’s Motion to Strike.
A. Small Claims Cases Were Cognizable at Law at the Time of the Adoption
                       of the Utah Constitution
    ¶14 The Utah Constitution was created by Convention on May
8, 1895, and went into effect on January 4, 1896—the same day Utah
became a state. UTAH CONST. art. XXIV, § 16; Proclamation No. 9, 29
Stat. 876 (1896). Before that time, beginning on September 9, 1850,
Utah was a territory of the United States. An Act to Establish a
Territorial Government for Utah, 9 Stat. 453 (1850). During Utah’s
territorial period, there existed local Justice of the Peace Courts,
which had jurisdiction over small claims matters. 2 The territorial

   2  Justice of the Peace Courts had jurisdiction over claims relating
to sums of one hundred dollars or less. See, e.g., An Act in Relation to
Justices of the Peace, 1851 UTAH TERR. LAWS, § 4. The amount was
later raised to “less than three hundred dollars.” 1888 UTAH COMP.
LAWS § 3020. As a point of reference, $100 would have been less than
$2,416.78 in today’s dollars, and $300 would have been less than
$7,250.33 in today’s dollars. See CPI Inflation Calculator, U.S. BUREAU
LABOR STAT., http://www.bls.gov/data/inflation_calculator.htm
(last visited May 17, 2016) (calculating based on year 1913, the first
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                         Opinion of the Court

laws of Utah provided for a defendant’s demand for a jury in cases
before the Justice of the Peace Courts. 3
    ¶15 When Congress enabled the adoption of the Utah
Constitution, it stated that “all laws in force made by [the Utah
Territory] at the time of its admission into the Union shall be in force
in said State, except as modified or changed by this Act or by the
constitution of the State.” Enabling Act, 28 Stat. 107, § 19 (1894). The
Enabling Act also converted the existing territorial courts into state
courts. Id. § 17. At the time of the adoption of the Utah Constitution,
then, the provisions of the territorial laws allowing for jury demands
in Justice of the Peace Courts remained in effect.
   ¶16 In 1896, after Utah was admitted to the Union, the Utah
Governor appointed a commission “to revise, codify, and annotate
the laws of the state.” Richard W. Young, et al., Preface to 1898 UTAH
REV. STAT., at iii. Despite the fact that at that time the laws were
rewritten “in great part” and “many changes” were made, id., the
1898 Utah Revised Statutes also contained numerous provisions
discussing a defendant’s demand for a jury in justice courts. 4 It was

year Consumer Price Index data was gathered). While these numbers
are not exact, they show that “small claims” is a fair characterization
of the respective sums of $100 and $300, given that today the small
claims limit is $10,000 or less. UTAH CODE § 78A-8-102(1); see also
Utah Court System: Territorial Period, 1850–1896, UTAH DIV. ARCHIVES
& RECS. SERV., http://archives.utah.gov//research/guides/courts-
system.htm#territorial-period        [https://perma.cc/HE2N-DSWE]
(last visited May 17, 2016) (describing one role of Justice of the Peace
courts as handling “small claims disputes”).
   3  Throughout the territorial period, there were various provisions
discussing a defendant’s jury demand in Justice of the Peace Courts.
See, e.g., An Act in Relation to Justices of the Peace, 1851 UTAH TERR.
LAWS, § 8 (jury of six, if jury demanded), § 15 (jury demand fee
required); An Act in Relation to Justices of the Peace, 1866 UTAH
TERR. LAWS, § 8 (jury of six, if jury demanded), § 15 (jury demand fee
required); 1876 UTAH COMP. LAWS, § 1086 (jury of six, if jury
demanded), § 1091 (jury demand fee required), § 2313 (a “defendant
may demand a trial by jury” in Justices’ Court, referring back to,
inter alia, §§ 1086, 1091); 1888 UTAH COMP. LAWS, § 3065 (six jurors in
Justices’ Courts).
   4 The provisions were substantively similar to the territorial laws.
See, e.g., 1898 UTAH REV. STAT. § 688 (“Justices’ Courts” had
jurisdiction over small claims matters for amounts “less than three
hundred dollars”), § 999 (pay for jurors in Justices’ Courts), § 1003
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                           SIMLER v. CHILEL
                          Opinion of the Court
not until 1992, when the Utah legislature amended then-section
78-46-5 of the Utah Code, that a jury trial was disallowed in small
claims cases. See Jury Use and Management Act, ch. 219, § 12, 1992
Utah Laws 821.
   ¶17 It is clear that at the time of the adoption of the Utah
Constitution, small claims cases were indeed cognizable at law. That
alone satisfies the standard initially set forth in Zions Bank. See Jones,
2015 UT 60, ¶ 43 (“[The] constitutional right to a jury trial . . . extends
only to cases that would have been cognizable at law at the time the
constitution was adopted.” (second alteration in original) (citation
omitted)). Moreover, jury demands in small claims justice courts
were explicitly provided for in Utah’s statutes for over a century.
Supra ¶ 16. Therefore, Utah Code section 78B-1-104(4) is an
unconstitutional deprivation of article I, section 10’s guarantee of the
right to jury trial in appeals from small claims judgments to district
courts.
 B. Ms. Simler Properly Asserted and Preserved Her Right to a Jury Trial
    ¶18 Rule 38(b) of the Utah Rules of Civil Procedure 5 provides
that a party may make a jury demand by (1) “paying the statutory
jury fee” and (2) “serving upon the other parties a demand therefor
in writing at any time after the commencement of the action and not
later than 14 days after the service of the last pleading directed to
such issue. Such demand may be endorsed upon a pleading of the
party.” The statutory fee for a civil jury demand is $250. UTAH CODE
§ 78A-2-301(1)(s). 6


(jury demand fee required in civil jury trial in Justices’ Courts),
§ 1295 (number of jurors in Justices’ Courts).
   5   We recognize that rule 81(c) of the Utah Rules of Civil
Procedure states that the rules of civil procedure “shall not apply to
small claims proceedings except as expressly incorporated in the
Small Claims Rules” and that the Utah Rules of Small Claims
Procedure do not expressly incorporate the rules pertaining to juries,
including rule 38. We therefore suspend rule 81(c) insofar as it
precludes incorporation of the jury-related rules of civil procedure to
trials de novo on appeal from the small claims court, pending further
action to align the Utah Rules of Small Claims Procedure with this
opinion.
   6 While this reflects the current statutory language, Ms. Simler’s
required statutory jury demand fee in May 2014 would also have
been $250, as the fee has been set at that amount since 2009. Civil
Filing Fees, ch. 149, § 1, 2009 Utah Laws 552.
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                         Opinion of the Court

     ¶19 Ms. Simler filed an answer in the trial de novo proceeding,
including a motion for a jury trial and a jury demand, which was
served on opposing counsel that same day. The district court
received and recorded the appropriate statutory jury demand fee. In
filing her jury demand and serving it upon Ms. Chilel, and in paying
the appropriate statutory fee, Ms. Simler properly availed herself of
her right to a jury trial in the small claims trial de novo proceeding.
    ¶20 Additionally, Ms. Simler preserved her constitutional
arguments with respect to her right to a jury in her Memorandum in
Opposition to Plaintiff’s Motion to Strike Answer, Jury Demand, and
Discovery Requests. Specifically, Ms. Simler argued that “to deprive
Defendant of a trial by jury in this de novo appeal would infringe on
her constitutional rights and deprive her of due process.” This
allowed the district court the opportunity to rule on this issue and
therefore preserved it. See Baird v. Baird, 2014 UT 08, ¶ 20, 322 P.3d
728 (“‘We generally will not consider an issue unless it has been
preserved’ in the court below. Preservation turns on whether the
district court ‘has an opportunity to rule on [an] issue.’” (alteration
in original) (citations omitted)).
             II. MS. SIMLER DID NOT PRESERVE HER
                     DISCOVERY ARGUMENTS
   ¶21 Ms. Simler argues on appeal that the preclusion of all
pretrial discovery in the district court infringed on her constitutional
right to due process, open courts, and uniform operation of laws, as
guaranteed by the Utah Constitution. However, unlike her jury-trial
arguments, Ms. Simler did not properly preserve her constitutional
arguments with respect to discovery. Ms. Simler asserts that she
preserved this issue “by serving discovery requests . . . which were
eventually stricken by the district court.” This does not amount to
presentation to the district court of a constitutional challenge to the
rule.
    ¶22 Ms. Simler’s opening brief further argues that she
preserved the issue through her Memorandum in Opposition to
Plaintiff’s Motion to Strike Answer, Jury Demand, and Discovery
Requests. However, a careful reading of that pleading shows that,
while Ms. Simler raised the question of the constitutionality of the
jury issue, she did not address the constitutionality of the discovery
issue. The only arguments she raised went to the reasonableness and
proportionality of the discovery and the relationship between
discovery and the streamlined nature of the small claims process. We
therefore decline to address Ms. Simler’s constitutional issues as
being inadequately preserved. See Baird v. Baird, 2014 UT 08, ¶ 20,
322 P.3d 728.
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                          SIMLER v. CHILEL
                         Opinion of the Court
                           CONCLUSION
   ¶23 We conclude that article 1, section 10 of the Utah
Constitution guarantees the right to a jury trial in a small claims trial
de novo, and we therefore hold that Utah Code section 78B-1-104(4)
is unconstitutional as applied to these types of cases. Because
Ms. Simler properly asserted and preserved the right to a jury trial,
that portion of the district court’s order striking Ms. Simler’s motion
and demand for jury trial is hereby reversed. Due to lack of
preservation, we do not address Ms. Simler’s constitutional
arguments with respect to discovery, and therefore that portion of
the district court’s order is affirmed.




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