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

                                 2013 UT 66


                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH
                    GERARDO THOMAS GARZA,
                     Plaintiff and Appellant,
                                     v.
                           TROY BURNETT,
                       Defendant and Appellee.

                           No. 20120180
                      Filed November 1, 2013

    On Certification from the United States Court of Appeals

           Michael D. Zimmerman, Amber M. Mettler,
                  Salt Lake City, for appellant
                Heather S. White, R. Scott Young,
                  Salt Lake City, for appellee

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


   ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                         INTRODUCTION
    ¶ 1 We have agreed to answer the following question
certified to us by the United States Court of Appeals for the Tenth
Circuit:
     Under Tenth Circuit decisions at the time Gerardo
     Thomas Garza filed his complaint, approximately two
     years remained in [the] limitations period [before his
     claim would become time-barred]. A Supreme Court
     decision soon after filing, however, overturned those
     decisions and rendered his complaint approximately
     ten months late.        Under Utah law, does an
                           GARZA v. BURNETT
                          Opinion of the Court
                                    	
       intervening change in controlling circuit law merit
       equitable tolling under these circumstances?1
    ¶ 2 For the reasons set forth below, we hold that an
intervening change in law does merit equitable tolling.
                            BACKGROUND
   ¶ 3 We recite the facts as stated in the certification order from
the Tenth Circuit Court of Appeals.2 On April 19, 2002, Ogden
City Police Officer Troy Burnett and another officer performed a
“knock and talk” investigation of a motel room. A woman
answered the door and permitted the officers to enter. Upon
entering, the officers heard the bathroom door slam. They asked
the woman who was in the bathroom and she replied that her
boyfriend was inside. The officers entered the bathroom without
permission and found Gerardo Thomas Garza inside with a gun
and methamphetamine. Mr. Garza was arrested and charged
with possession of a firearm by a felon and possession of
methamphetamine, both in violation of federal law. Before trial,
Mr.	Garza challenged the constitutionality of the search and
sought to exclude the evidence obtained from it, but failed.
Mr. Garza then entered a conditional guilty plea, reserving his
right to appeal the district court’s denial of his motion to
suppress. The district court sentenced Mr. Garza to thirty-seven
months imprisonment and three years supervised release.
Mr. Garza appealed. On February 2, 2005, the Tenth Circuit
overturned Mr. Garza’s conviction, holding that the officers’
search of the motel bathroom was unreasonable under the Fourth
Amendment.3 Mr. Garza subsequently brought a claim under
42 U.S.C. § 1983 against Officer Burnett in federal court on
February 16, 2007, based on that unreasonable search.4
                                                                       	
   1   Garza v. Burnett, 672 F.3d 1217, 1222 (10th Cir. 2012).
   2   Garza v. Burnett, 672 F.3d 1217 (10th Cir. 2012).
   3   United States v. Garza, 125 F. App’x 927, 932–33 (10th Cir.).
   4 Technically, Mr. Garza’s complaint was received by the court
on February 16, 2007, but “was not filed until after the court
approved his motion to proceed in forma pauperis on April 5,
2007.” Garza, 672 F.3d at 1219 n.1. The Tenth Circuit determined
that “the filing date relates back to the date of the complaint’s
                                                           (con’t.)	
                                                                       	




                                  	
                                 2	
                                  	
                                               Cite as: 2013 UT 66
                                             Opinion of the Court

    ¶ 4 Shortly after Mr. Garza filed his claim, the United States
Supreme Court issued its opinion in Wallace v. Kato, clarifying
when certain § 1983 claims accrue.5 Almost two years later, on
January 29, 2009, Officer Burnett moved for summary judgment.
He claimed that Mr. Garza’s claim was barred by the statute of
limitations.    Mr. Garza opposed the motion for summary
judgment. He argued that he was entitled to equitable tolling of
the limitations period because Wallace changed the law affecting
the accrual of his claim. The district court granted Officer
Burnett’s motion. The court concluded that, as a result of Wallace,
Mr. Garza’s claim accrued on the date the Fourth Amendment
violation occurred and Mr. Garza was not entitled to equitable
tolling, and therefore Mr. Garza’s claim was untimely.
   ¶ 5 The parties agree that state law determines the length of
the statute of limitations period, and federal law governs the
accrual date of the cause of action.6 Thus, it is clear under Utah
law that a four-year statute of limitations applies to Mr. Garza’s
§ 1983 claim.7 However, the question of when the limitations
period began to run in this case is complicated. Four days after
Mr. Garza filed his complaint in February 2007, the Supreme
Court issued Wallace, which overturned then-existing Tenth
Circuit law regarding the accrual date for § 1983 claims.8
   ¶ 6 Under Tenth Circuit precedent at the time of Mr. Garza’s
conviction, a § 1983 claim was not cognizable if it would render

																																																																																																																																							
receipt under these circumstances,” and thus we treat
February 16, 2007 as the filing date. Id.
      5   549 U.S. 384, 391–92 (2007).
      It is well settled, and the parties agree, that federal law
      6

governs the issue of when a § 1983 claim accrues and state law
dictates the length of the statute of limitations for a § 1983 claim—
the same period as provided for personal injury torts. Id. at 387–
88.
     UTAH CODE § 78B-2-307(3); see Jepson v. State Dep’t of Corr.,
      7

846 P.2d 485, 488 (Utah Ct. App. 1993) (applying a four-year
limitation to a personal injury suit).
      8   Garza, 672 F.3d at 1220.

                                                                  	
                                                                 3	
                                                                  	
                           GARZA v. BURNETT
                        Opinion of the Court
                                  	
invalid a plaintiff’s conviction or sentence.9 This precedent was
based on the Tenth Circuit’s interpretation of Heck v. Humphrey,
wherein the United States Supreme Court determined that “a
§ 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.”10 Before Wallace,
the Tenth Circuit interpreted the Heck bar of deferred accrual to
apply “to both extant and anticipated convictions.”11 Therefore,
under the rule in place when he was convicted, Mr. Garza could
not have brought his § 1983 claim before the Tenth Circuit
overturned his conviction. Had he attempted to do so, it would
have been dismissed.12 Under the law existing at the time, the
statute of limitations did not run on Mr. Garza’s § 1983 claim
while he was incarcerated. Indeed, he did not have a claim until
his conviction was overturned on February 2, 2005. “Thus, under
circuit precedent on the date of filing, [Mr.] Garza’s accrual date
would have been February 2, 2005 and his complaint would have
been filed well within the four-year limitations period.”13
   ¶ 7 However, in February 2007, the Supreme Court clarified
the scope of Heck in Wallace. The Court held that Heck’s deferred
accrual bar applies only when success in a § 1983 action would
impugn an extant conviction, and it does not apply to anticipated
convictions.14 In other words, if a plaintiff is convicted at the time
that a § 1983 claim accrues, then accrual of the claim would be
deferred. But the mere possibility of a future prosecution or


                                                                       	
   9  Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th
Cir. 1999).
   10   512 U.S. 477, 489–90 (1994).
   11   Garza, 672 F.3d at 1218.
   12 Although defendants argue the Heck bar was inapplicable to
Mr. Garza’s claims all along, in certifying this question to us, the
Tenth Circuit concluded that they “would have applied the Heck
bar to [Mr.] Garza’s suit had it been brought prior to [its] order
reversing his conviction.” Id. at 1220.
   13   Id.
   14   549 U.S. at 393.

                                        	
                                       4	
                                        	
                          Cite as: 2013 UT 66
                         Opinion of the Court

conviction does not defer accrual of a § 1983 claim.15 So in this
case, because Mr. Garza could have brought his § 1983 claim for
the illegal search before his conviction, “his limitations period
began to run on the date of the unconstitutional search, rendering
his complaint untimely.”16 Consequently, Wallace retroactively
rendered Mr. Garza’s claim untimely by transforming the accrual
date from February 2005 to April 2002.
    ¶ 8 The district court applied the Wallace rule and concluded
that Mr. Garza’s § 1983 claims based on the unreasonable search
accrued on the date of the challenged search, April 19, 2002, and
were not tolled under federal law by his later conviction. Thus,
the district court ruled that the statute of limitations for
Mr. Garza’s claims expired on April 18, 2006—four years after the
date of the search—and his complaint was untimely. The district
court further determined that Utah’s doctrine of equitable tolling
did not apply because Mr. Garza had “not shown that he was
unable to assert his rights within the limitations period” and had
“inexcusably and unreasonably slept on [his] rights, making him
ineligible for equitable tolling under Utah law.”17 Consequently,
the district court entered summary judgment in favor of Officer
Burnett. Mr. Garza appealed to the Tenth Circuit, arguing that the
intervening change in law brought about by Wallace entitled him
to equitable tolling under Utah law. Mr. Garza also moved to
certify the equitable tolling question to this Court. We accepted
the invitation to answer the certified question.         We have
jurisdiction under Utah Code section 78A–3–102(1).
                      STANDARD OF REVIEW
   ¶ 9 “On a certified question, we are not presented with a
decision to affirm or reverse, and traditional standards of review




                                                                 	
   15   Id.
   16   Garza, 672 F.3d at 1221.
   17 Garza v. Burnett, No. 1:06-CV-134DAK, 2010 WL 1212084, at
*4, *5 (D. Utah Mar. 23, 2010) (alteration in original) (internal
quotation marks omitted).

                                    	
                                   5	
                                    	
                           GARZA v. BURNETT
                     Opinion of the Court
                                	
do not apply. Therefore, [o]n certification, we answer the legal
questions presented without resolving the underlying dispute.”18
                              ANALYSIS
    ¶ 10 In certifying this question to us, the Tenth Circuit
correctly notes that “the doctrine of equitable tolling ‘has been
developed almost exclusively through application of the
discovery rule.’”19 Indeed, “[n]o Utah court has ever found
occasion to equitably toll a limitations period when there has not
first been a demonstration that the party seeking the tolling could
invoke the discovery rule.”20        An essential prerequisite to
application of the discovery rule is that a plaintiff “did not know
nor should have reasonably known the facts underlying the cause
of action.”21    Although we have never equitably tolled a
limitations period without first applying the discovery rule, we
have been clear that “[t]his is not to say that no party may ever
qualify for equitable relief in the absence of such a delay in
discovering the claim, but rather to illustrate the high bar this
court has required those seeking such extraordinary relief to
hurdle.”22
   ¶ 11 To that end, “[t]he doctrine of equitable tolling should
not be used simply to rescue litigants who have inexcusably and
unreasonably slept on their rights, but rather to prevent the
expiration of claims to litigants who, through no fault of their own,
have been unable to assert their rights within the limitations
period.”23 “Under our traditional principles of equitable tolling,
the party seeking equitable tolling must first show that he was

                                                                   	
   18 Burns v. Astrue, 2012 UT 71, ¶ 7, 289 P.3d 551 (alteration in
original) (footnote omitted) (internal quotation marks omitted).
   19Garza v. Burnett, 672 F.3d 1217, 1221 (10th Cir. 2012) (quoting
Beaver Cnty. v. Utah State Tax Comm’n, 2006 UT 6, ¶ 30, 128 P.3d
1187).
   20 Beaver   Cnty., 2006 UT 6, ¶ 29.
   21   Burneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128.
   22   Beaver Cnty., 2006 UT 6, ¶ 29.
   23	Id.   ¶ 32 (emphasis added).	

                                       	
                                      6	
                                       	
                          Cite as: 2013 UT 66
                         Opinion of the Court

indeed disabled . . . from protecting his claim.”24 We have
heretofore only found disability sufficient to warrant equitable
tolling through application of the discovery rule. Today, we hold
that an intervening change in controlling law that extinguishes a
cause of action also constitutes disability sufficient to meet the
high bar to warrant equitable tolling.25
    ¶ 12 It is not often that a timely filed claim retroactively
becomes untimely because of a judicial decision. We recognize
that “[t]hese shifting authorities have placed . . . [Mr.] Garza in an
unusual position.”26 Officer Burnett argues that Mr. Garza is not
entitled to equitable tolling because he has failed to show that he
could not reasonably have complied with the limitations period.
Officer Burnett’s argument is premised on the fact that at the time
Mr. Garza’s conviction was reversed, Mr. Garza still had over
fourteen months in which to timely file his complaint under
Wallace, but failed to do so. Instead, Mr. Garza waited two years
to do so. The flaw in Officer Burnett’s argument can be traced to
the fact that when Mr. Garza filed his complaint, it was timely
under then-controlling circuit precedent. Statutes of limitations
do not differentiate between plaintiffs who file as soon as their
claims accrue and those who wait until the end of the limitations
period. At bottom, Officer Burnett does not argue that Mr. Garza
should have been more timely, but rather he is arguing that
Mr. Garza should have been more prophetic. The law does not
penalize parties for prophetic inadequacy.27 Neither does the law
punish people for circumstances that are completely out of their
control.28 Refusing to equitably toll the statute of limitations
                                                                      	
    24 Id. ¶ 43.

   25   See id. ¶ 29.
   26   Garza, 672 F.3d at 1218.
   27 See Houghton v. Dep’t of Health, 2005 UT 63, ¶ 23, 125 P.3d 860
(“[P]laintiffs should not be penalized because their notice of claim
failed to accurately predict future developments in the law.”).
   28  See R.C.S. v. A.O.L. (In re Baby Girl T.), 2012 UT 78, ¶ 28, 298
P.3d 1251 (“It would fl[y] in the face of fundamental fairness . . . to
allow a state agency’s inaction to cut off the rights of fathers who
. . . have complied with the Act to the extent they are capable.”
(alteration in original) (internal quotation marks omitted)).

                                    	
                                   7	
                                    	
                           GARZA v. BURNETT
                      Opinion of the Court
                                	
under these circumstances would be manifestly unjust because
Mr. Garza would lose his cause of action due to circumstances
beyond his control and through no fault of his own.
    ¶ 13 Indeed, we are not the first court to address this question
in the wake of Wallace. Wallace turned Heck on its head for a
number of jurisdictions. Mr. Garza points to several district
courts that have found that Wallace created circumstances
sufficient to justify equitable tolling of the statute of limitations for
plaintiffs whose claims were extinguished because of the change
in controlling law.29
    ¶ 14 In consideration of the rationale underlying equitable
tolling, we hold that when a change in controlling law
extinguishes an individual’s cause of action, equity will toll the
statute of limitations to afford the plaintiff a reasonable period of
time after the change in law to bring his claim. Indeed, this is
precisely the type of circumstance that merits equitable tolling.

                                                                           	
   29 Hargroves v. City of New York, 694 F. Supp. 2d 198, 211–12
(E.D.N.Y. 2010) (“[T]he change in law occasioned by Wallace is the
type of extraordinary circumstance that justifies equitable
tolling. . . . Plaintiffs were diligent in pursuing their claims . . . and
could not have predicted the still-years-away change in the law.”
(footnote omitted)), rev’d on other grounds Hargroves v. City of New
York, 411 F. App’x 378 (2d Cir. 2011); Wharton v. Cnty. of Nassau,
No. 07-CV-2137(RRM)(ETB), 2010 WL 3749077, at *4 (E.D.N.Y.
Sept. 20, 2010) (“Plaintiffs, through no fault of their own, relied on
then-authoritative Second Circuit precedent to their detriment,
and strict application of Wallace would effectively deprive
Plaintiffs of their cause of action. . . . [This is the] extraordinary
circumstance for which equitable tolling now applies.”); Kennedy
v. City of Villa Hills, No. 07-122-DLB, 2008 WL 650341, at *5 (E.D.
Ky. Mar. 6, 2008) (“The Court is not inclined to unilaterally punish
Kennedy for circumstances not of his own making. . . . Under
these circumstances, application of equitable principles is
appropriate.”); Kucharski v. Leveille, 526 F. Supp. 2d 768, 775 (E.D.
Mich. 2007) (“[S]trict application of Wallace to this case effectively
deprives the plaintiffs of their cause of action. . . . [T]his is the
unusual case that fits neatly within the doctrine of equitable
tolling.”).

                                     	
                                    8	
                                     	
                       Cite as: 2013 UT 66
                      Opinion of the Court

Accordingly, a plaintiff that files timely before the change in law
renders the claim untimely will uniformly satisfy this reasonable
period of time. As such, Mr. Garza is entitled to equitable tolling
because his claim was timely under Tenth Circuit precedent as it
existed at the time of filing but was rendered untimely
retroactively by the intervening change in law effectuated by the
Supreme Court’s Wallace decision.
                         CONCLUSION
    ¶ 15 We answer the Tenth Circuit’s certified question in the
affirmative: Under Utah law, an intervening change in controlling
law that extinguishes a previously timely cause of action does
merit equitable tolling of the statute of limitations.




                                 	
                                9	
                                 	
